author: JUNELL, Justice.

text:
    Ralph N. FERGUSON et ux., Appellants, v. Anthony W. BEAL, Appellee.
    No. B2049.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 26, 1979.
    Rehearing Denied Oct. 17, 1979.

      Carnegie H. Mims, Jr., Jefferson & Ma-ley, Houston, for appellants.
    George C. Peyton, Peyton & Peyton, A1 Bonner, Bonner & Bonner, Weldon Berry, Craig Washington, James Fuller, Sr., Houston, Eugene T. McLaughlin, Bellville, for appellee.
    Before COULSON, SALAZAR and JU-NELL, JJ.
   JUNELL, Justice.

This suit was brought by appellants Ralph N. and Albertha D. Ferguson against appellee Anthony Beal and others. The suit involved the sale of a house and lot by Beal to the Fergusons. We modify and affirm.

Appellants purchased the house in question from Beal after requesting and receiving certificates attesting to the sound condition of the roof, swimming pool, and air conditioning system and the absence of termites. They sued Beal alleging false and fraudulent representations made to induce appellants to purchase, and breach of warranty as to the condition of the structure and fixtures. The suit was brought under the Texas Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Com. Code Ann. § 17.41 et seq., and the Fraud in Real Estate Transactions Act, Tex.Bus. & Com.Code Ann. § 27.01. Appellants also sued Amy Huggins, alleged to have been Beal’s agent in the sale, and Melvin Player, dba Melvin Pool Service and James D. Grant, dba Reasonable Sanitation Company, two of the inspectors engaged by Beal. They sought recovery of treble damages, costs, attorney’s fees, and cancellation of a $10,000.00 note executed as part of the consideration for the house. Beal answered and filed a counterclaim on the note, cross-actions against Player and Grant and third-party actions against T. L. Phoenix and C. Pete, dba C. Pete Roofing Company, two other inspectors hired by Beal to provide the requested certificates.

After a lengthy trial the jury found that Beal had breached some warranties to appellants resulting in damages totaling $1,333.60, that there were no fraudulent or deceptive acts on the part of Beal, that Huggins did not act as Beal’s agent and that defendants Player and Grant were not liable for any sum to appellants. Third-party defendants Phoenix and Pete received directed verdicts in their favor. The trial court rendered judgment for Beal against appellants on the $10,000.00 note and entered judgment for appellants against Beal only for $1,333.60.

Appellants first urge that the trial court erred in refusing to treble the damages and to award costs and attorney’s fees pursuant to § 17.50(b)(1) of the Deceptive Trade Practices — Consumer Protection Act.

The Act came into effect in 1973. The sale in question and the acts alleged to bring this case under the Deceptive Trade Practices Act occurred in July of 1975. As of that date a “consumer” was defined in § 17.45(4) as a purchaser of goods and services. “Goods” were defined as “tangible chattels bought for use.” It was not until September 1,1975, that the Act was amended to define “goods” as “tangible chattels or real property purchased or leased for use.”

Appellants contend that the Act applied to purchases of real property made before September 1, 1975, and cite as authority Woods v. Littleton, 554 S.W.2d 662 (Tex.1977). That case does not so hold. In Woods the supreme court held that although Woods purchased the real property before the effective date of the Act, he also purchased the services of the builders, who agreed to repair any defects in the home that arose within the first year. Defects in the sewer system arose within the first year, and the builders made repairs and falsely stated to Woods that the repairs placed the sewer system in good working order. The false statement was made after the effective date of the Act. The supreme court held that the date of the false statement which gave rise to the cause of action under the Deceptive Trade Practices — Consumer Protection Act, rather than the date of the sale, determined the applicability of the Act. Since the deceptive act, the false statement, occurred after the effective date of the Act and arose from the separate contract for services, the supreme court held that there was a cause of action under the Act.

Woods is clearly distinguishable from the case now before this Court. Here appellants purchased no services from Beal, and all acts of Beal complained of by appellants occurred before the statute was amended to include “real property” in the definition of “goods”.

We hold that the Deceptive Trade Practices — Consumer Protection Act did not apply to the acts of Beal complained of by appellants. This case, therefore, was not properly brought under that Act; and the trial court correctly refused to award treble damages, costs and attorney’s fees authorized thereby.

Appellants next contend that the trial court erred in taxing costs of defendants Player, Grant, Phoenix, Pete and Huggins against appellants. We agree as regards defendants Phoenix and Pete only.

Player, Grant and Huggins were sued by appellants. The judgment stated that plaintiffs (appellants) take nothing as to them. As a result they were successful parties, and the trial court acted in conformity with Tex.R.Civ.P. 131 in awarding them their costs. Within the limit of Rule 131, taxation of costs is committed to the sound discretion of the trial court. Rubin v. Adams, 368 S.W.2d 42 (Tex.Civ.App.— Amarillo 1963, writ ref’d n. r. e.).

Defendants Phoenix and Pete were not sued by appellants, but only by appellee Beal in his third-party action. Both received directed verdicts; thus they were successful parties as against Beal. Rule 131 states that the successful party “shall recover of his adversary all costs incurred . ” (emphasis added). Appellants were not the adversaries of Phoenix and Pete. Rather Beal was, having filed a third-party action against them. Beal was the losing party as against them and should have borne their costs.

While Tex.R.Civ.P. 141 allows taxation of costs otherwise than as provided by Rule 131, reasons for so doing must be stated on the record. No reasons for taxing the costs of Phoenix and Pete against appellants were so stated; therefore, this point must be sustained. Harris v. Shotwell, 490 S.W.2d 860 (Tex.Civ.App.—Fort Worth 1973, no writ). We modify the judgment so as to tax costs incurred by Phoenix and Pete against appellee Beal.

Appellants next urge that the trial court erred in awarding judgment to appellee Beal on a $10,000.00 promissory note executed by appellants, plus interest and 15% attorney’s fees, on the ground of res judica-ta.

The note in question was executed in connection with the purchase of the house and matured on July 22, 1976. As part of their suit appellants asked that the note be cancelled. Appellee Beal filed a counterclaim in which he alleged that he was the owner of the note, that it was due and payable, and that demand for payment had been made upon appellants. He prayed for judgment on the note plus interest and attorney’s fees.

Beal also filed an independent suit, Cause No. 1,093,806, seeking judgment on the same note. Appellants filed a plea in abatement of that suit on the ground that Cause No. 1,085,254, which concerned liability on the identical note, was pending and must be decided before the second suit could proceed. The court granted the plea in abatement and dismissed Cause No. 1,093,806 with prejudice. Appellants argue that such dismissal is res judicata as to the issue of their liability on the note.

The dismissal of the independent cause, No. 1,093,806, did nothing to affect Beal’s counterclaim included in Cause No. 1,085,-254, as to which no determination had been made. Appellants’ claim of their res judica-ta defense is without merit, and we overrule this point.

In their fourth point of error appellants urge that the trial court erred in overruling their motion for a new trial on ground of jury misconduct. The claim of misconduct was based on the testimony of one juror, Albert J. Biggs. Mr. Biggs was employed by Cameron Wholesale Company, which on occasion did business with C. Pete, a third-party defendant in this case. Mr. Biggs had never met Pete and did not recognize him prior to the trial, although he was familiar with the name. During voir dire the jurors were asked whether they knew or were acquainted with any party. Mr. Biggs failed to state the connection between his employer and Pete. Appellants urge that this was sufficient to warrant a new trial under Tex.R.Civ.P. 327. They also attempted to show that the jurors considered improper matters during deliberation although the testimony of Biggs on this issue discloses only that he did not remember what the jury might have considered.

Rule 327 allows a new trial if “a juror gave an erroneous or incorrect answer on voir dire examination, . .’’if such answer is material and if it reasonably appears from the record as a whole that injury probably resulted to the complaining party. Appellants make no effort to demonstrate the specific injury they feel they suffered. In addition, the absence of a complete statement of facts prevents our determining whether injury probably resulted; therefore, this point is overruled.

Finally, appellants contend that the trial court erred in granting defendants eighteen peremptory challenges while appellants were limited to six. The eighteen challenges were distributed as follows: six to appellee Beal; six to defendant Huggins; and six to defendants Player, Grant, Pete and Phoenix. In support of this argument appellants urge that the word “party” in Tex.R.Civ.P. 233 does not mean “person”, and that whether multiple defendants are entitled to separate peremptory challenges depends on whether their interests are, at least in part, antagonistic in the matter that the jury is to be concerned with. Roy L. Martin & Associates, Limited v. Renfro, 483 S.W.2d 845 (Tex.Civ.App. — San Antonio 1972, writ ref’d n. r. e.).

In that case it was held that the trial court had erred in allowing each of four defendants six peremptory challenges. The court pointed out that the error was properly presented and preserved. “Prior to the selection of the jury, [appellants] excepted to the ruling of the court in granting these strikes and, at this time, pointed out in detail that the pleadings and depositions demonstrated that none of the defendants was in a posture antagonistic to that of the other defendants . . ..” 483 S.W.2d at 851. During the trial of that case appellants also moved for a mistrial on this ground.

In this present case the trial court initially granted the defendants twelve strikes, six to Huggins and six to Beal and the other defendants. Phoenix’s attorney objected and argued that the interests of Phoenix and Beal were antagonistic. Attorneys for Grant, Player and Pete agreed. The trial court thereupon awarded the eighteen strikes and called for objections. The record reflects no such objection. Appellants have raised this point for the first time on appeal, and have accordingly waived any right to complain of this action.

Furthermore, the Texas Supreme Court has held that the harmless error rule, Tex.R.Civ.P. 434, applies where a party is denied the number of strikes to which he is entitled. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965). In view of the importance attached to the right of a party to make peremptory challenges, Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974); Tamburello, supra, it is apparent that the same rule should apply to cases in which one party contends that an opposing party was awarded too many challenges. In order for this court to review an issue governed by the harmless error rule, it must have before it the entire record. Bashrum v. Vinson, 330 S.W.2d 538 (Tex.Civ.App. — Houston, 1959, writ ref’d n. r. e.). Since appellants did not submit a complete statement of facts, we are unable to determine that an improper judgment probably resulted; therefore, for this additional reason we overrule this point.

Modified and affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    TEXAS HEALTH FACILITIES COMMISSION, Appellant, v. WEST TEXAS HOME HEALTH AGENCY, Appellee.
    No. 6063.
    Court of Civil Appeals of Texas, Waco.
    Sept. 27, 1979.

      John L. Hill, Atty. Gen., David Kendall, First Asst. Atty. Gen., Robert S. Bicker-staff, Jr., Carla J. Cox, Asst. Attys. Gen., Austin, for appellant.
    Aubrey J. Fouts, Key, Carr, Evans & Fouts, Lubbock, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by the Texas Health Facilities Commission (hereafter referred to as the Commission) from judgment of the trial court, reversing and setting aside an order of the Commission, ordering West Texas Home Health Agency (hereafter referred to as Health Agency), to “CEASE and DESIST” the operation of “consultation offices and/or work rooms” located in Brady, Junction, New Braunfels, Brown-wood, Wheeler and Graham, within 30 days of the date of the order.

The Commission administers portions of the Texas Health Planning and Development Act; (Article 4418h VATS); Health Agency provides home health care in some 150 Texas counties.

In January 1977 Mrs. Betty J. Girling of Girling and Associates Home Health Care Services, Inc. complained to the Commission that Health Agency was operating “work rooms” in several towns in violation of the Health Planning and Development Act (Article 4418h VATS) in not having first obtained proper certification from the Commission.

The Commission ordered Health Agency to “show cause why it should not be found in violation” of Article 4418h.

After hearing the Commission entered its Administrative Order finding that Health Agency had established the six offices above mentioned and had not acquired a certificate of need or exemption certificate from the Commission; that establishment of such offices violated the Health Planning and Development Act in several particulars and ordered the Health Agency to cease and desist the operation of such offices within 30 days.

Health Agency filed this case for review of the Commission’s order; asserted the Commission erred in finding violations of Article 4418h or of the Commission rules; and prayed the court set aside the order of the Commission.

The Commission answered by general denial; and that the case is governed by the substantial evidence review provisions of Article 6252-13a, Section 19; and prayed the Commission be sustained.

The Commission later filed plea to the jurisdiction of the court, asserting Health Agency had not exhausted its administrative remedies prior to filing suit in the court.

The trial court denied the Commission’s plea to the jurisdiction; and after hearing rendered judgment reversing and setting aside the administrative order of the Commission. Such judgment held the Commission’s order was not supported by substantial evidence, and that as a matter of law establishment of the six offices without first obtaining a certificate of need did not constitute a violation of Article 4418h VATS.

The Commission appeals on 3 points.

Point 1 contends the trial court lacked jurisdiction to consider Health Agency’s appeal from the order of the Commission.

The Commission asserts the trial court erred in overruling its plea to the jurisdiction in that Health Agency had not exhausted its administrative remedies prior to filing suit in the court.

The proceeding before the Commission was a hearing in which Health Agency was required to “show cause” why it should not be found in violation of Article 4418h.

Section 1.04 of Article 4418h provides: “The Administrative Procedure and Texas Register Act applies to all proceedings under this Act except to the extent inconsistent with this Act”.

Section 19(a) of the Administrative Procedure and Texas Register Act (Article 6252-13a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. This section is cumulative of other means of redress provided by Statute”.

The “Cease and Desist” order the Commission issued after hearing on the “show cause” order was a final decision in a contested case, and the trial court had jurisdiction of the case.

The fact that Section 3.03 of Article 4418h which provides that an adverse “Declaratory Ruling” on application of a person describing a proposed project may not be appealed to the courts until after denial of a certificate of need does not preclude the trial court’s jurisdiction of Health Agency’s suit for judicial review of the Commission’s “Cease and Desist” order in the “show cause” hearing.

Points 2 and 3 assert the trial court erred in holding the order of the Commission was affected by an error of law, and in holding the order of the Commission was not supported by substantial evidence.

The Order of the Commission found that establishment of the six offices by Health Agency constituted: 1) “expansion of services currently offered” by Health Agency; 2) “modification of existing facilities” of Health Agency; 3) “conversion of structures into health care facilities”; and 4) “Establishment of branch offices” of Health Agency.

Article 4418h Section 3.01 requires a certificate of need or an exemption from the Commission for Health Agency to:

1) “substantially expand a service currently offered”; 2) “modify an existing facility”; 3) “convert a structure into a health-care facility”; and the Commission pursuant to its rule making authority had determined that establishment of a branch office (4 above) constitutes an “expansion of services currently offered”.

The work of Health Agency involves the delivery of nursing services to the home of home-bound patients under doctors’ orders. Health Agency commenced operation in April 1969 and was operating in all of the counties in which the six “consultation offices and/or work rooms” here involved are located prior to May 28, 1975, the effective date of Article 4418h. Health Agency maintains five major administrative offices; plus five miniature administrative offices which are referred to as branches, all located .over the area served. The six consultation offices here involved are in addition to the above. The offices in controversy were opened: Brady on April 19, 1976; Junction on January 1, 1976; Brownwood on May 6, 1976; Wheeler on January 26, 1976; Graham on March 16,1976; and New Braunfels on February 11, 1976. These offices involved no material or substantial change in the operation of Health Agency in the areas being served. These offices consisted of one room in which was located a table, chair and memory telephone (a remote telephone answering service). No medical or other records were kept in the office; no employee manned the office; and no treatment or health care functions were performed in the office. The function of the office was to serve as a contact point or place where the patient could make contact with Health Agency; there was no difference in the type service offered or rendered in areas where these offices were located after the offices were opened than before they were opened. The nurses who rendered service in the patient’s homes could post their records in the office if so desired. In such situation Health Agency could not and did not “substantially expand a service currently offered”. We note in this connection the Commission did not find a “substantial” expansion of service, but only an “expansion” of services which is insufficient to constitute a violation.

The Commission found a “modification” of “existing facilities” and a “conversion of structures into health care facilities”. Section 1.03(9) of the Act defines “facilities” as “health care facilities” and cites “a home health agency”, “hospitals”, and various places where health treatment is accorded. The one room, non-manned contact offices established by Health Agency do not fit the definition of facilities above.

The Commission found that the offices here involved were branch offices of Health Agency and under the rules of the Commission constituted an expansion of service. This falls short of the requirement of the Statute that a finding “substantial” expansion of a service currently offered is required before Health Agency be required to obtain a certificate of need or an exemption certificate.

Moreover, the Rules of the Commission exempt a home health agency from obtaining a certificate for the addition of a substitute or branch office where the provider was already delivering home health service to the county prior to June 18, 1976, which was the case with Health Agency.

All the Commission’s points are overruled and the judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    Alan BALDWIN, d/b/a Alan Baldwin, Builder, Appellant, v. The CALCASIEU LUMBER COMPANY, Appellee.
    No. 12904.
    Court of Civil Appeals of Texas, Austin.
    Oct. 3, 1979.
    C. Robert Dorsett, Austin, for appellant.
    Charlie D. Dye, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   SHANNON, Justice.

Appellee, Calcasieu Lumber Company, sued appellant, Alan Baldwin, doing business as Alan Baldwin, Builder, in the district court of Travis County on a sworn account. Appellee asserted that it had furnished appellant “goods, wares, merchandise, and services” in the total sum of $5,067.26. In a counterclaim, appellant pleaded, in effect, that appellee had agreed for consideration to fabricate certain trusses and to supervise appellant’s installation of these trusses in appellant’s construction project. The trusses failed, and appellant pleaded that appellee did not design and fabricate the trusses as it represented. Appellant pleaded that appellee’s omissions constituted: (1) a violation of the Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.41 et seq.; (2) a breach of an implied warranty of merchantability; and (3) a breach of an implied warranty of fitness for a particular purpose.

After trial to a jury, the district court entered judgment for appellee for $749.23 and attorneys’ fees of $1,500.00. We will affirm the judgment.

Because the court did not submit a special issue respecting appellant’s liability on the sworn account and in view of the judgment entered, appellant’s liability on the sworn account may be viewed as having been established as a matter of law. The court submitted appellant’s counterclaim against appellee by an issue inquiring whether ap-pellee failed to fabricate the truss system in a good and workmanlike manner. The jury answered that issue affirmatively. The jury found in special issue three that the reasonable cost of materials and labor to place the truss system in a good and workmanlike condition was $4,318.03. The jury answered that a reasonable attorneys’ fee for appellee for prosecuting its claim against appellant was $1,500.00.

The district court offset the undisputed amount of the sworn account by the sum found in special issue number three, and entered judgment for appellee for $749.23 in addition to attorneys’ fees. By entry of the judgment, the district court obviously was of the view that appellant had failed to make out a case under the Deceptive Trade Practice — Consumer Protection Act.

Appellant filed no statement of facts.

Appellant complains of the judgment by two points of error, claiming that the jury’s finding that the truss system was not fabricated in a good and workmanlike manner established a deceptive trade practice as a matter of law thereby entitling him to treble damages and attorneys’ fees. We will overrule the points and affirm the judgment. The reasons for the affirmance are set out below.

According to appellant’s brief, “[t]he truss system in issue in the instant case was fabricated by Calco [appellee] from Calco materials according to specifications that were designed by Calco. As such, the truss system is both a ‘good’ purchased for use from Calco by Baldwin and a ‘service’ provided by Calco to Baldwin.” Appellant pleaded that the sale of the truss system occurred in “September or October, 1975.”

To recover under the Deceptive Trade Practices Act, it was appellant’s burden, inter alia, to prove that he was a “consumer” as that term is used in the Act. From September 1, 1975, through May 23, 1977, the following definitions are found in § 17.45 of the Act:

(4) “‘Consumer’ means an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services.”
(1) “ ‘Goods’ means tangible chattels or real property purchased or leased for use.”
(2) “ ‘Services’ means work, labor, or service purchased or leased for use, for other than commercial or business use, including services furnished in connection with the sale or repair of goods.” (Emphasis added).

“There is an important distinction between the definition of ‘goods’ and that of ‘services’ which was not changed by the [1975] amendments. A service is not a service under the Consumer Protection Act unless it is ‘for other than commercial or business use.’ The only restriction is that the good must be purchased or leased ‘for use.’ The exclusion of commercial services from the coverage of the Act is not consistent with the redefinition of ‘consumer’ to include business entities. Obviously, there is no logical difference between a deceptive transaction involving goods and one involving services. Yet, the Act does not draw this distinction and, barring subsequent amendments, it would appear that the businessman deceived in the purchase or lease of services must still rely solely on common law remedies.” Bragg, Now We’re All Consumers! The 1975 Amendments to the Consumer Protection Act, 28 Baylor L.Rev. 1, 5 (1976).

At all times material to the case at bar, appellant may have been a “consumer” as to “goods” purchased from appellee, but he could not have been, by definition, a “consumer” as to “services” purchased from appellee. In a hybrid purchase involving goods and services, it would seem that it is a party’s burden to differentiate between the “goods” that he bought for which he could recover as a “consumer” under the Act and the “services” performed by one for which the party was relegated to his common law remedies. Without a statement of facts, it is not possible, of course, for this Court to determine whether appellant discharged that burden. We surely cannot conclude, under these circumstances, that appellant was entitled, as a matter of law, to recover treble damages and attorneys’ fees under the Deceptive Trade Practices Act.

In his pleadings and prayer, appellant sought recovery, among other things, for breach of implied warranty. The answers of the jury and the judgment of the district court are consistent with that theory of recovery, and without a statement of facts we are in no position to conclude that the judgment was erroneous.

The judgment is affirmed.

      . Effective May 23, 1977, the phrase “for other from the definition of “services.” than commercial or business use” was omitted


author: SALAZAR, Justice.

text:
    Wallace MAYAD, Appellant, v. Fred RIZK et al., Appellees.
    No. B2105.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 3, 1979.
    Rehearing Denied Oct. 24, 1979.

      Gary D. Aguren; Gary D. Aguren & Associates, Houston, for appellant.
    L. Chris Butler; Reynolds, Allen & Cook, Houston, for appellees.
    Before J. CURTISS BROWN, C. J., and JUNELL and SALAZAR, JJ.
   SALAZAR, Justice.

Appellant Wallace Mayad appeals from a summary judgment granted to appellees Fred Rizk, et al., on appellant’s equitable bill of review proceeding to set aside the dismissal of an initial suit for want of prosecution.

The initial suit was filed in February, 1971. As noted in our prior opinion, Mayad v. Rizk et al., 554 S.W.2d 835 (Tex.Civ.App. —Houston [14th Dist.] 1977, writ ref’d n. r. e.), on direct appeal from the dismissal by the trial court, it is significant that for the two previous years before the events giving rise to this controversy, the cause had been placed on the dismissal docket pursuant to local rule 12(t) and it had been retained on the docket on motion of appellant.

In February, 1976, the cause was again placed on the dismissal docket. No motion to retain the cause was filed, and on April 5, 1976, it was dismissed for want of prosecution. Appellant did subsequently file a Motion to Retain on June 16, 1976, which was overruled on July 12, 1976, and a second Motion to Retain which was also overruled on July 13, 1976.

On direct appeal, this court affirmed the dismissal at 554 S.W.2d 835, 837 on the ground that some evidence existed that the clerk complied with the provisions of Tex.R. Civ.P. 165a which provides that notice of intention to dismiss shall be sent by the clerk to each attorney of record. The supreme court refused the application for writ of error for no reversible error. Appellant Mayad then filed this bill of review proceeding.

The trial court granted appellee’s motion for summary judgment on the ground that no genuine issue of material fact exists as to any question raised in the bill of review, all such questions having been decided against appellant in the direct appeal.

In order to successfully seek relief by bill of review to set aside a final judgment, a party must allege and prove:

1. A meritorious claim or defense;
2. which one was prevented from asserting or making by fraud, accident or mistake of the opposite party; '
3. unmixed with any fault or negligence of his own.

Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). The second requirement has been expanded by case law to include an excuse based on error made by a clerk of the court acting in his official capacity in discharge of a duty imposed by law. Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974); Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964).

The question on appeal as to the matter of rendering or affirming a summary judgment is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970).

Appellant’s sole point of error urges that the trial court erred in granting summary judgment as genuine issues of fact existed as to each of the three requirements of the bill of review. As to the first and third requirements, i. e., a meritorious claim and absence of fault or negligence on the part of appellant’s counsel, the record reflects and appellees admit in their brief that they offered no summary judgment proof to establish the lack of genuine issues of fact as to these two essential elements. Nor did we in our previous opinion in this case so hold.

The second requirement, an accident or mistake based on error made by a clerk of the court acting in his official capacity in discharge of his duties, was likewise not decided in our previous holding. The prior decision was based on error urged by appellant that no notice had been mailed pursuant to Tex.R.Civ.P. 165a. This court held that testimony by the clerk indicating that notice had been mailed to the attorneys pursuant to Tex.R.Civ.P. 165a supported the dismissal of the case by the trial court at the hearing on the Motions to Retain.

We note at this point that our holding would have been the same had appellant not filed any motions to retain and pursued a bill of review immediately upon the dismissal.

The distinction we make herein has to do with the fact that this is a bill of review proceeding before this Court as opposed to a hearing on a Motion to Retain. Appellant is entitled to a trial by court or jury in this bill of review.

A fact issue exists as to whether or not appellant’s failure to file a motion to retain the case was due to an accident or mistake by the clerk in mailing the notices, given the facts that neither appellant nor appellee’s counsel received either the post card notice of the impending dismissal nor post-dismissal notice and that the page containing this case was included among the pages posted in the courtroom but the page was one of several missing from the master list of cases to be dismissed in the main office of the district clerk. Mayad v. Rizk et al., Tex.Civ.App., 554 S.W.2d at 838. Sufficient fact issues exist for appellant’s counsel to make a showing of good cause for his failure to file his motion to retain and thus, this case is distinguished from Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d 930 (Tex.1975).

The motion for summary judgment should not have been granted. We reverse and remand for a trial on the merits.

Reversed and remanded.


author: PAUL PRESSLER, Justice.

text:
    ASTROCARD COMPANY, INC., Appellant, v. GULF COAST CIGAR COMPANY, INC., Appellee.
    No. A2098.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 3, 1979.

      Joe S. Maida, Houston, for appellant.
    Russell C. Ducoff, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and MILLER, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from an award of $8,864.84, plus costs, granted in the District Court below in a suit on a sworn account.

The cause of action was originally brought against six defendants, including the appellant, Astrocard Inc. (Astrocard) and its president, Henry B. Font (Font). Judgment was taken against three of the defendants in a preliminary hearing, and a fourth defendant was non-suited. Subsequently, appellee’s remaining cause of action was tried without a jury, and the judgment before us on appeal was entered in favor of Font but against Astrocard.

The trial record reveals that Astrocard purchased the assets of Apollo Gift Shop in January of 1976 for $3,000.00 cash and the cancellation of the debt owed it by Apollo Gift Shop. The purchase was from McMor Corporation acting through its president, Edward McMenemy. Apollo Gift Shop, McMor Corporation, and Edward McMene-my were the three defendants against whom the default judgment was rendered in the preliminary hearing.

In appellee’s original petition, recovery was sought on an open account arising out of an alleged contractual agreement between appellee and all of the defendants. At trial, prior to calling its first witness, appellee moved to amend its pleadings, pursuant to Rule 66 of the Texas Rules of Civil Procedure. In its proposed amendment, ap-pellee attempted to attach the invoices to the sworn account in the petition. It further attempted to add an allegation that the transaction in question was governed by Section 6 of the Tex.Bus. & Comm.Code Ann. (commonly referred to as the Bulk Sales Act). This was the same contention which appellant had made in its original answer, but which it later withdrew in its “Second Amended Petition”. The trial court granted the motion to add the invoices but denied the motion to add the allegation. Appellee, in presenting its case, introduced evidence of the open account between appellee and Apollo Gift Shop when it was owned by the McMor Corporation. However, appellee failed to show any contractual relationship between itself and either Font or Astrocard. In fact, during the presentation of appellee’s evidence, testimony was given by an employee of appellee that appellee had never contracted with Font or Astrocard. This was not contradicted, and there was no evidence that either of them had expressly or implicitly assumed the debts of Apollo Gift Shop by purchasing its assets.

• However, Font testified that subsequent to the purchase of the Shop’s assets by Astrocard, he was informed that he had not complied with the Bulk Sales Act. The record reflects that Font was uncertain concerning his need to comply, not being familiar with the terms or the scope of the Act. Nevertheless, he sent a letter to appellee, (Plaintiff’s Exhibit 3), expressly purporting to be in accordance with the Act, informing all creditors, vendors, etc. that Astrocard d/b/a Apollo Gift Shop “is held harmless to all previous debts, damages, and liens” of Apollo Gift Shop accruing while under the ownership of the McMor Corporation.

The appeal before us raises two points of error. The first is that the trial court erred in overruling appellant’s motion for a summary judgment. Since the motion was actually made at trial, it could not have been a proper motion for summary judgment but rather a motion for judgment. The second point is that the trial court erred in granting judgment against appellant for any debt allegedly due appellee since there was no evidence and the pleadings of appellee were insufficient to sustain this finding. These points shall be consolidated for analysis. Appellant’s contention that there was no evidence of a contract between appellee and appellant and, therefore, no basis for recovery is correct and consequently its motion for judgment could properly have been granted. For this reason, the trial court’s judgment must be reversed. However, it is our opinion that the cause was tried upon an erroneous theory. It is apparent from the record that both parties became aware prior to the trial that the sale of the Gift Shop assets to Astro-card probably fell within the scope of the Bulk Sales Act and that the responsibilities and liabilities related to its debts prior to the sale were governed by the Act.

For this reason, it is our opinion that justice will best be served by reversing and remanding the cause and permitting the parties to amend their pleadings accordingly. Tex.R.Civ.P. 434; Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); United Gas Corporation v. Shepherd Laundries, 144 Tex. 164, 189 S.W.2d 485 (1945); Patterson v. Wizowaty, 505 S.W.2d 425 (Tex.Civ.App.— Houston [14th Dist.] 1974, no writ).


author: DICKENSON, Justice.

text:
    Lula MEEK et al., Appellants, v. Lorene MITCHUSSON, Independent Executrix, Appellee.
    No. 5369.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 4, 1979.
    Rehearing Denied Oct. 25, 1979.
    Walter P. Wolfram, Amarillo, for appellants.
    Jim J. Hatcher, Henry, Hatcher & Freeman, Gainesville, Jack G. Kennedy, Sherman, for appellee.
   DICKENSON, Justice.

This case presents a question of jurisdiction in a “contested probate matter” under Tex.Prob.Code Ann. § 5 (Supp.1979). Lorene Mitchusson filed an application to probate the will of her deceased husband, Ar-ley M. Mitchusson. Lula Meek and the other heirs at law of decedent contested that application. Following a jury trial, the will was admitted to probate. The heirs appeal. We vacate that judgment.

On March 29, 1978, the Judge of the County Court of Grayson County entered an order transferring this contested probate matter to the 59th District Court of Gray-son County pursuant to Probate Code Section 5(b), supra, which provides that in those counties where there is no statutory court exercising the jurisdiction of a probate court, the judge of the county court may transfer contested probate matters to the district court.

The County Court at Law No. 2 of Grayson County was authorized by Tex. Rev.Civ.Stat.Ann. art. 1970-332a (Supp.1979), and it was activated by a resolution of the Commissioner’s Court “effective January 16, 1978.” That court is a statutory court exercising the jurisdiction of a probate court. Consequently, the transfer order dated March 29,1978, was not authorized by Probate Code Section 5(b), supra. The District Court did not acquire jurisdiction, and its judgment is void. Beeson v. Beeson, 578 S.W.2d 517 (Tex.Civ.App. — El Paso 1979, no writ). The error of the trial court in assuming jurisdiction where none exists is fundamental error which can be raised for the first time on appeal. Newman v. King, 433 S.W.2d 420, 422 (Tex.1968).

The judgment of the trial court is vacated. The transfer order dated March 29, 1978, is also vacated. Jurisdiction of this contested probate matter remains in the constitutional County Court under Probate Code Section 5(c), supra. The Judge of the County Court at Law No. 2 is authorized by Article 1970-332a, supra, to hear this contested probate matter, and the constitutional County Court Judge is authorized to transfer this matter to the County Court at Law No. 2 of Grayson County under that statute. The costs of this appeal are taxed one-half against appellants and one-half against appellee.


author: MASSEY, Chief Justice.

text:
    STATE of Texas ex rel. Jack O. KIMMONS et al., Appellants, v. CITY OF AZLE, Texas, et al., Appellees.
    No. 18133.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 4, 1979.
    Rehearing Denied Oct. 31, 1979.

      Wilbur T. Knape, Hurst, for appellants.
    Cantey, Hanger, Gooch, Munn & Collins and S. G. Johndroe, Jr., Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

In a proceeding in the nature of Quo Warranto the State was denied relief it sought by a summary judgment granted to defendants/respondents City of Azle and its officials. The State appealed.

We affirm.

Giving rise to the complaint of those who are the relators, upon the petition of whom the State (through the District Attorney of Tarrant County) sought and obtained leave to file the suit, was Azle’s enactment of a certain ordinance purporting to annex territory which belonged to relators. Attack was upon the authority of Azle, as the home rule city it claimed to be, to annex any territory, let alone that as to which relators held title.

Premise for the contention of the State erroneously lies in its interpretation of the former opinion of this court in State ex rel. City of Azle v. City of Sanctuary, 467 S.W.2d 211 (Tex.Civ.App. — Fort Worth 1971, writ ref’d n. r. e.). Interestingly, the State committed itself in that case upon the relation of the City of Azle, and by quo warranto proceedings attacked another municipality’s incorporation as such. Here the State has committed itself upon the relation of certain individual relators and by quo warranto proceedings has attacked Azle’s corporate existence, including its existence as a home rule city since an election held on April 3, 1971.

To be recognized is the fact that in quo warranto proceedings the presence of the relators along with the State is of no consequence in material aspect, for the real party is the State. Relators have no authority to bring suit nor to appeal from any adverse judgment in a case where there might be attack on ground of failure to follow statutory provision of law as in establishing territorial limitations, etc. and no more, for in such a case it would be the exclusive province of the State pursuant to quo warranto proceedings. Walling v. North Central Texas Mun. Water Auth., 162 Tex. 527, 348 S.W.2d 532 (1961); 47 Tex.Jur.2d, Quo Warranto, §§ 2, 4, 15, 27 (1963) and others of the sections indicative that, at most, the relators are mere nominal parties in a case where the questions involved are not such as engage individual rights as distinguished from their rights as members of the general public. One result of this is that, insofar as the instant case is concerned, propriety of the summary judgment of the trial court is tested exactly as though none other than the State had challenged Azle. Furthermore, the same rule applies to that case already mentioned, State ex rel. City of Azle v. City of Sanctuary, 467 S.W.2d 211. There, and by the decision in that case, Azle is no way bound, although the State might be.

However, in State ex rel. City of Azle it must be noticed that the State was encumbered with “the laboring oar” and was obliged to establish facts entitling it to prevail as against the City of Sancutary. One of the facts it was obliged to establish and have found in the case, as a predicate to any right to relief, was exhibited in our earlier opinion where it was stated: In order to prevail in this cause it was essential for the State to establish that Azle was a city under the Municipal Annexation Act, i. e., under Art. 970a, § 2, subd. A, of which defines a city as an incorporated city, town or village. This it failed to so. It did not allege that Azle was incorporated. Azle’s City Secretary testified that Azle was not incorporated.

On the foregoing: It is obvious that the testimony of the Secretary that Azle (in 1969) was not incorporated is, as applied to the instant litigation, both inconclusive and immaterial. Azle was a relator in that earlier case. If there was no other testimony in that case perhaps the State, the real party, became bound; but if so it was bound to City of Sanctuary, under conditions existent at time of the trial, and not to Azle. There the parties adversary were the State and City of Sanctuary. In the instant case the parties adversary are the State and Azle. Furthermore, on its face the opinion of this court in such earlier case shows that the reason the State was held to have failed to establish any right to relief was its failure to prove that Azle was a city. Without that fact proved there was absence of proof Azle had any authority as an incorporated municipality so as to possess authority as such under the Municipal Annexation Act, etc. The case stands for no more than this. In the instant litigation against Azle, the State can claim no benefit from its failure to prevail in its earlier case against another municipality upon the relation of Azle. Language of the Justices of our Supreme Court in the case discussed in the paragraph to follow make this fact plain and clear.

State, through its Attorney General, opposed Azle upon an occasion subsequent to State ex rel. City of Azle, the decision in which was made by this court on April 23, 1971. Six months later, on October 20, 1971, (in City of Azle v. Martin, 474 S.W.2d 687 (Tex.1971)), there was the decision of a suit by Azle to have the court mandamus Crawford C. Martin, in his official capacity as the State’s Attorney General, to approve the issuance of Azle’s revenue bonds. The Supreme Court held that, despite the decision on April 23, 1971, (by this court in State ex rel. City of Azle), Azle was and had been continuously since the occurrence of events of 1958 set out in the opinion, a duly incorporated city, first as a general law city and then, later, as a home rule city (on September 21,1971). Without mentioning the events set forth by the Supreme Court opinion of October 20, 1971, save the fact that they included references to validating legislation relative to Azle’s incorporation, such court established the fact of Azle’s existence as a duly incorporated city and as a home rule city when its home rule charter was adopted (Azle ordinance of adoption was September 21,1971), pursuant to Texas’ home rule amendment, Tex.Const. art. XI, § 5. We think it not to be doubted that, except founded upon a premise of some change of circumstances or conditions material to the question of Azle’s continued existence as a home rule city, (and even in a summary judgment case it would be necessary to be established by evidence of the State — in the event it would challenge the fact) — the Azle status as an incorporated home rule city would be presumed to have continued to persist from and after October 20, 1971.

In the discharge of its summary judgment burden Azle perhaps went much further than required by law in view of the Supreme Court opinion in City of Azle v. Martin (on October 20, 1971). By affidavit and authenticated records it not only established all those things established for the benefit of the Supreme Court but went even further. There was proved a succession of ordinances by Azle authorizing issuance of municipal bonds which were approved by subsequent Attorneys General; ordinances of annexation and disannexation in alteration of municipal boundaries; and instruments of agreement with neighboring municipalities resolving questions which might otherwise exist relative to extra-territorial jurisdiction, etc. Azle also cited the trial court to the several validation Acts by the Legislature during its many sessions since the Supreme Court opinion on October 20, 1971. These validated Azle’s incorporation and annexations. We specifically notice Tex.Rev.Civ.Stat.Ann. art. 1174a-9 (1973), “Validation of adoption of charter; elections; governmental proceedings”; Tex. Rev.Civ.Stat.Ann. art. 717k-5 (1975), “Validation of contracts, warrants and refunding bonds authorized by counties, cities or towns”. Relative thereto the State is bound.

Despite the foregoing, the State attacks Azle’s existence, particularly its existence as a home rule city. In the event Azle be held to exist as a home rule city, then State challenges the existence of a boundary sufficient to serve as the base from which annexation of territory could be made to take in relators’ lands. This will be later discussed.

State’s contention is that population of Azle at time of the election of April 3,1971, was less than 5,000, the number of inhabitants necessary for there to be a valid election of adoption of the home rule amendment. It charges bad faith in the necessarily implied representation upon the sufficiency of population. Furthermore, State charges that for the instant summary judgment proceedings it was the burden of Azle to establish as part of its summary judgment proof that there was, at time of the election, the requisite number of inhabitants, or, that Azle establish that on a hearing on the merits the State would be unable to prove a deficiency in the number of inhabitants at the material time. It is because of this there is contention Azle was not entitled to its judgment.

Apart from the fact of legislative validations heretofore mentioned there are other reasons why the contention of the State has no merit. Tex.Rev.Civ.Stat.Ann. Vol. 9, “Election Code”, prescribes by art. 9.30 “Other contested elections” (1967), that if there be contests of validity and regularity in instances of elections to adopt the home rule amendment, just as in a would be true in instances where there are persons contesting the validity of elections for county offices, the litigation of the questions are to be before district courts in the same manner and under the same rules, as far as applicable, as prescribed by other articles specified. Among these is Tex.Rev.Civ. Stat.Ann. art. 9.03, Vol. 9, “Election Code”, at art. 9.03, “Notice of contest” (1967). There is provided that in case of contest of an election he who would desire to attack by proceedings in the district court shall, within thirty (30) days after the return day of election, give written notice thereof, which notice shall state the ground upon which the contestant relies to sustain his contest.

In the case before us the summary judgment evidence of Azle suffices to establish regularity of the election on April 3, 1971. In other words its evidence establishes its compliance with the requisite (if to be deemed as required) that it have the sufficient qualification by population for a valid election on the home rule amendment. Thus, even if timeliness of protest were not a question it would have become the burden of any contestant to introduce proof that there was not the requisite qualification by population for valid election. Here no such summary judgment evidence was presented by the State. By proceedings hypothesized summary judgment against the State would have been proper had the contest been in time. In the instant case even if State had raised the matter of population as an issue for trial it would come too late—for there was no contest of validity of the election within thirty (30) days after the return day of the Azle election. We hold the provision as to time to be mandatory and jurisdictional.

Having so held it is obvious that the State lacked the authority to make the attack and that the district court lacked the jurisdiction to consider the attack desired to be made. This is so because an election contest is a cause of action which can be created by statute only, as applied to which any contestant is required to comply therewith, and the judicial power to consider such a contest exists only by and to the extent authorized by statute. 26 Am.Jur.2d p. 150, “Elections”, § 329 “(Contests—Jurisdiction and Venue)—Courts” (1966). Johnson v. Stevenson, 170 F.2d 108, (5th Cir. 1948, cert. denied), 336 U.S. 904, 69 S.Ct. 491, 93 L.Ed. 1069; Bassel v. Shanklin, 183 S.W. 105 (Tex.Civ.App.—Austin 1916, no writ), and the authorities therein cited.

We also believe the State’s contention to be barred by law by the doctrine of res adjudicata because of the Supreme Court action in City of Azle v. Martin; this despite the fact that our district courts are by the Election Code vested with the exclusive jurisdiction in instances where there are election contests.

We furthermore take occasion to notice that the record reflects the passage of many years since Azle became a home rule city; during this period Azle has functioned as a municipal corporation. It has engaged in taxation, issuance of municipal bonds, and the doing of all those things by municipal citizens through a form of government authorized by the home rule amendment. There would be great harm which would result in the invalidation of the existence and capacity of Azle as such. It therefore would appear that to do so would be contrary to public policy.

On all of the foregoing Azle met its summary judgment burden entitling it to the judgment.

The area annexed, which annexation is challenged by the suit, was adjacent and contiguous to the boundaries of Azle as it existed before the time it became a home rule city. These boundaries were proved by the summary judgment evidence. The complaint of the State on appeal that the area was not adjacent and contiguous is not that it was not such if Azle was truly incorporated at the material times; the ground of complaint is want of that requisite element because Azle was not correctly incorporated. The contention has no merit by what has been heretofore written; because for our purposes Azle was truly incorporated at all material times, either by reason of propriety of incorporation in the first place or because of validation of its incorporation through legislative action. Furthermore, the same was established by judicial decree as a necessary consequence of the Supreme Court decision on October 20, 1971.

From all of the foregoing we hold that Azle’s existence as an incorporated home rule city, its boundaries at the material times, its extra-territorial jurisdiction, its annexation authority and propriety of its exercise — all as material to the annexation challenged by the State in this quo warran-to proceeding — constitute matter upon which Azle has demonstrated the absence of any material issue of fact to be tried.

There is a procedural matter of which the State complains, being abuse of discretion by refusal of the trial court to permit late tendered controverting material to be filed in opposition to Azle’s motion for summary judgment. The tender was made after submission of the motion but before judicial decision. That which was tendered was made a part of the record on appeal. We have examined it. We find that it constituted hearsay evidence merely and that had it been received by the trial court would have availed the State nothing. Further, it neither added to nor subtracted from the summary judgment evidence upon which the trial court should act and did act. Under the circumstances the admission of that which was tendered would have availed the State nothing, and the refusal to admit it could in no event have been injurious. The contention is without merit by Tex.R.Civ.P. 434, the Texas “harmless error rule”.

All points of error have been considered; all are overruled.

Judgment is affirmed.


author: CLAYTON, Justice.

text:
    C & W MANHATTAN ASSOCIATES, Appellant, v. Gordon R. LIVELY, Appellee.
    No. 8291.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 4, 1979.
    Rehearing Denied Oct. 25, 1979.

      Jesse R. Pierce, Houston, for appellant.
    Melvin R. Wilcox, III, Longview, for ap-pellee.
   CLAYTON, Justice.

This is a suit for the recovery of damages for breach of an option contract between appellee, Gordon R. Lively, and appellant, C & W Manhattan Associates. In a non-jury trial, judgment was entered in favor of appellee in the sum of $106,250, plus prejudgment interest.

In September 1972, appellee, Lively, obtained from George Kelly an option to purchase a certain tract of land for the purchase price of $300,000. On February 14, 1973, appellant, Manhattan Associates, entered into an agreement with Lively whereby Manhattan Associates were granted “the exclusive right and option to purchase the [Kelly] option.” The appellant’s option contained the agreement that if the option was exercised, appellant would pay the purchase price of $200,000 to appellee for his option to buy the tract of land for $300,000. Appellant’s option contained the agreement that: “This option is exercisable during and only during that period of time beginning April 1, 1973 at 12 o’clock noon and ending April 5, 1973 at 12 o’clock noon;” and further, “In the event such tract shall contain less than forty (40) acres, the Purchase Price shall be reduced by $12,-500.00 for each acre less than forty (40).”

Appellant’s option agreement with Lively contained the provisions:

“The purchase price shall be $200,-000.00, hereinafter called Purchase Price, payable upon the date such Option is closed in accordance with the terms hereof; it being understood and agreed that the sum of $7,500.00 paid upon the execution hereof shall be applied toward that Purchase Price. In the event PURCHASER fails to exercise this Option, the $7,500.00 shall be retained by LIVELY and this Agreement shall become null and void.”

By letter dated April 3, 1973, appellant notified appellee that it elected to exercise its option. By letter dated May 2, 1973, appellant notified Lively of its intention to cancel and terminate the option to purchase the real property and demanded the return of the $7,500 previously delivered to appel-lee.

The trial court made and filed findings of fact, inter alia, to the effect: (1) that the option agreement was executed by appellant and appellee, and appellant paid $7,500 which was accepted by appellee as consideration therefor; (2) that appellant exercised its option on April 3, 1973; (3) that in reliance upon appellant’s exercise of its option, appellee on April 5, 1973, exercised his option with Kelly; (4) that at all times subsequent to April 3, 1973, appellee stood ready, willing, and able to perform any and all his obligations to appellant under their option; (5) that on May 2, 1973, appellant advised appellee of its intention not to complete the purchase of the option and demanded the return of the $7,500, and at such time appellant breached its contract; (6) that appellant agreed to pay appellee $200,000 less $12,500 times the number of acres under forty acres actually contained in the subject tract and less $7,500 previously paid for the option, and that the tract contained 33.14 acres; (7) that appellee suffered damage as a result of appellant’s failure to carry out its agreement and that appellee’s damage as a result of appellant’s breach was $106,250; (8) that appellee’s loss of the benefit of his bargain was foreseeable and within the contemplation of the parties when the option agreement was agreed upon and executed.

Appellant has not challenged any of the findings by the court by a point of error, and in the absence of such challenge, they are binding upon the appellate court. State v. Wiergate Lumber Co., 582 S.W.2d 258 (Tex.Civ.App.—Beaumont 1979, writ ref’d n. r. e.); Lovejoy v. Lillie, 569 S.W.2d 501 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.); McBurnett v. Gordon, 534 S.W.2d 370 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.).

Appellant urges three points of error directed at the amount of damages awarded by the trial court. Appellant contends that the “proper measure of [appellee’s] damages was the agreed amount of $7,500,” and that appellee’s damages “were limited to retention of the $7,500 paid by [appellant] for its option.” We do not agree with such contentions.

As found by the trial court, appellant paid the sum of $7,500 for its option to purchase appellee’s option to purchase the acreage. Under the terms of the appellant’s option the $7,500 was to be retained by appellee in the event appellant did not exercise its option. This sum was the consideration paid for the option and was not a liquidated damage clause as contended by appellant. Appellant concedes the right of appellee to retain such sum if there had not been an exercise of the option by appellant. However, appellant did not fail or refuse to exercise the option. Appellant effectively exercised its option by letter dated April 3, 1973.

The option agreement entered into by and between appellant and appellee was, in itself, a contract. Until such time as appellant elected to act or exercise its option, the contract is sometimes said to be unilateral in nature. When appellant exercised its option such action converted the option contract into a binding bilateral contract. Having exercised the option, by its election, appellant must then proceed to perform the conditions of the option contract in order to complete the transaction. Ferguson v. von Seggern, 434 S.W.2d 380 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.); McWhirter v. Morrow, 203 S.W.2d 317 (Tex.Civ.App.—Amarillo 1947, no writ); Northside Lumber & Bldg. Co. v. Neal, 23 S.W.2d 858 (Tex.Civ.App.—Fort Worth 1929, no writ); Ellis v. Johnson, 38 S.W.2d 625 (Tex.Civ.App.—El Paso 1931, writ dism’d).

As found by the trial court, appellant breached its contract with appellee to pay the stipulated purchase price. As a result thereof, appellant was legally bound to pay the agreed purchase price. The proper measure of damages for such breach of contract would not be a mere forfeiture of the $7,500 paid for the option but would be the damages resulting therefrom as found by the trial court. No challenge has been made to the findings of the court as to the amount assessed as damages. The contention of appellant is only that the $7,500 paid by appellant as consideration for the option is the proper measure of damages. Under the facts as found by the court, we reject this contention. These points of error are overruled.

Finding no error, the judgment of the trial court is affirmed.

AFFIRMED.


author: DIES, Chief Justice. KEITH, Justice,

text:
    A. J. HOLMES, Appellant, v. Emerson HOLMES, Appellee.
    No. 8183.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 4, 1979.

      B. F. Whitworth, Jr., Jasper, for appellant.
    March H. Coffield, Jasper, for appellee.
   DIES, Chief Justice.

Two brothers, A. J. (“Cracky Lee”) and Emerson Holmes, had trouble over jointly owned “heired” land and timber cutting, and Cracky Lee shot Emerson several times. Emerson, as plaintiff below, sued Cracky Lee, defendant below, in the District Court of Newton County and, after a jury trial, received a judgment against Cracky Lee for $10,000, from which the latter brings this review.

The jury found that Crackey Lee intentionally shot his brother, plaintiff. Defendant, Cracky Lee, insists the court below should have defined “intentional” even though there is no contention the shooting was accidental.

Tex.R.Civ.P. 277 requires “ . the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict . .” No definition is required for a commonly used term. G. Hodges, Special Issue Submission in Texas § 13 at 37 (1959). See Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46, 49 (1958); Union Oil Company of California v. Richard, 536 S.W.2d 955 (Tex.Civ.App.— Beaumont 1975, writ ref’d n. r. e.); Gulf Insurance Co. v. Vela, 361 S.W.2d 904 (Tex.Civ.App. — Austin 1962, writ ref’d n. r. e.).

Recently the Texas Supreme Court has noted that the term “unreasonably dangerous” in a products liability case need not require a definition. Turner v. General Motors Corp., Tex., 584 S.W.2d 844 (1979).

We feel “intentional” is a common term, and its definition is unnecessary to enable the jury to reach a verdict. This point is overruled.

Cracky Lee also insists the trial court’s definition of “self defense” was erroneous or at least incomplete. Herewith follows the trial court’s definition:

“ . . .a person acts in ‘self defense’ when he uses violence to resist violence proffered to him or where the person assaulted does or attempts to do an act which places the person of the one charged with assault in jeopardy, or which reasonably creates the belief in the mind of the assaulting party that he is in danger. In order to avail himself of the right of self-defense, the person charged with assault must not only honestly believe himself to be in immediate danger, but have reasonable grounds for such belief; and, in resisting force with force, he must use only that degree of force which is reasonably necessary to repel a threatened violence.”

Cracky Lee wants the jury informed the danger may be apparent viewed from his standpoint; and that he was not bound to retreat to avoid killing Emerson.

It is true that self defense in Texas is the same in civil as well as criminal cases with this important exception. The burden of proof in a criminal case is “beyond a reasonable doubt”; while in a civil case it is by a “preponderance of the evidence.” See Rhoden v. Booth, 344 S.W.2d 481, 485 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.). The definition given by the court in the instant case fairly informs the jury that Cracky Lee’s belief of danger, if reasonable, was sufficient, and we think it is a sufficient definition particularly in a civil suit. Under the facts of this case, we see no necessity to inform the jury Cracky Lee was not bound to retreat to avoid the necessity of killing Emerson. Cracky Lee took the position he was on a crutch and couldn’t retreat. The undisputed evidence here shows that Emerson, not Cracky Lee, was in retreat and was shot from behind. These points are overruled.

Cracky Lee next contends the jury’s answers to Special Issues Nos. 1 and 3 were against the great weight and preponderance of the evidence. This directs us to all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In Special Issue No. 1, the jury found that Cracky Lee shot his brother intentionally, and in Special Issue No. 3 they failed to find he was acting in self defense.

We have carefully read this entire record, and, while of course we recognize Cracky Lee made these contentions to the jury, suffice it to say that the jury’s answers are supported by abundant probative evidence. These points are overruled.

Finally Cracky Lee complains that the trial court allowed Emerson’s sister, Mrs. Margaret Tukes, to testify after having been put under the Rule (Tex.R.Civ.P. 267), when she was shown to have remained in the courtroom. Where the rule is breached, the court may determine whether or not to permit the witness to testify, and the court’s ruling will not be upset unless there is a showing of manifest abuse. Triton Oil & Gas Corp. v. Moran Drilling Co., 509 S.W.2d 678, 685 (Tex.Civ.App. — Fort Worth 1974, writ ref’d n. r. e.). See 3 McDonald, Texas Civil Practice § 11.17.3 at 186 (1970). No such showing is made here.

All of appellant’s points are overruled, and the judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice,

concurring.

While I join in the affirmation of the judgment of the trial court, I do not agree completely with the rationale of the opinion affirming the case. At the outset, it appears to me that the case was not properly submitted to the jury. The inquiry in Special Issue No. one, upon which liability was imposed, submitted “intentional” wounding of the plaintiff. I submit that this was not an ultimate issue in the case.

The charge set out in Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 86-87 (1954), includes the ultimate issue — was the shooting wrongful? But, we do not have a point of error raising the specific point. Instead, we have an attack upon the failure of the court to define the word “intentionally”.

In essence, plaintiff’s pleadings alleged that defendant had committed an aggravated assault upon him in violation of the provisions of Tex.Penal Code Ann. §§ 22-01(a)(1) and 22.02(a)(3) (1974). The Legislature, having defined the offense, also gave a definition for use in connection therewith. See Tex.Penal Code Ann. § 6.03(a) (1974) defining culpable mental states in this language:

“A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.”

The word “intentionally”, as defined in the Penal Code and as used in the special issue was not a “common term”. On the contrary, it was and is a word of art and the jury should have been instructed as to its meaning in the language used in the Penal Code.

As Justice Cornelius pointed out in the recent case of Hogenson v. Williams, 542 S.W.2d 456, 458 (Tex.Civ.App. — Texarkana 1976, no writ):

“An assault is an offense against the peace and dignity of the state, and the conduct constituting an assault is that which is described in the Penal Code. That conduct is also an invasion of private rights constituting a civil tort, but the definition of an assault is the same whether it is the subject of a criminal prosecution or a civil suit for damages.” (emphasis supplied)

In Hogenson, supra, the court found reversible error because of the failure of the trial court to define assault “in the terms of Section 22.01” of the Penal Code. (Id.) Here, the jury was left to speculate as to the meaning of the operative word in the offense — the word “intentionally”.

However, under our record, there is no question but that the defendant shot his brother voluntarily; the only question was whether or not he was justified in so doing under the doctrine of self-defense. Under these circumstances, I do not find the failure to define “intentionally” to be reversible error.

A charge on self-defense, as quoted in Grieger v. Vega, supra, would have afforded defendant all of the rights to which he was entitled. As noted by Justice Barrow in Bounds v. Caudle, 560 S.W.2d 925, 929, fn. 3 (Tex.1978):

“It is settled that the law of self-defense is the same in both civil and criminal cases. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).”

However, since the adoption of the new Penal Code, the charge on self-defense should be modified along the lines suggested by Judge Dally in Sternlight v. State, 540 S.W.2d 704, 705-706 (Tex.Cr.App.1976).

I concur in the disposition of the complaint because (a) the specific objection now under discussion was not included in the objections to the charge; and (b) the factual basis of the plea of self-defense is extremely weak, amounting to no more than the faint glimmer of evidence of a probative nature. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970).

With these qualifications, I concur in the affirmation of the judgment of the trial court.

        Sec. 22.01(a)(1) : “A person commits an offense if he: (1) intentionally . . . causes bodily injury to another . . .

        Sec. 22.02(a)(3) defines an aggravated assault: “A person commits an offense if he commits assault as defined in Section 22.01 of this code and he: ... (3) uses a deadly weapon.”


author: RALEIGH BROWN, Justice.

text:
    James Edward BAKER v. Margaret Emily BAKER.
    No. 5368.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 4, 1979.
    Rehearing Denied Nov. 1, 1979.

      James S. Moss, Cole & Moss, Bonham, for appellant.
    Mary D. McKnight, McKnight & Hund-ley, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This case involves the divorce of Margaret Emily Baker and James Edward Baker and the custody of their minor child, James Edward Baker, Jr. Margaret Baker was appointed managing conservator of the minor child. James Baker appeals. We dismiss the appeal.

After the instant cause was filed by Margaret Baker and James Baker had answered in said cause, James Baker absconded from the state with the minor child and continues to withhold the child from the named managing conservator. James Baker did not personally appear at the hearing of said cause but appeared by attorney of record. Under these conditions, Margaret Baker contends James Baker’s appeal should be dismissed, we agree.

In Burckhalter v. Conyer, 7 S.W.2d 73 (Tex.Com.App.1928, opinion adopted), where plaintiffs in habeas corpus proceeding involving custody of a child removed from state pending review and failed to return child to jurisdiction of court pursuant to order to that effect, the court said:

Plaintiffs in error are seeking to invoke the jurisdiction of the Supreme Court to correct errors alleged to have been committed by the Court of Civil Appeals in reversing and remanding the judgment awarding them the custody of the child. They should not be permitted to invoke such jurisdiction when they refuse to comply with an order entered by the Supreme Court which was necessary in order to make effective the judgment which might be rendered in this case.
At present plaintiffs in error are in the attitude of asking the Supreme Court to reverse the judgment of the Court of Civil Appeals, which would give them the permanent custody of the child, while their action in keeping the child beyond the jurisdiction of the court would render ineffective the judgment of the court if it should be in favor of defendant in error.

See also Hays v. Brandon, 245 S.W.2d 381 (Tex.Civ.App. — Fort Worth 1951, no writ).

The court in Strange v. Strange, 464 S.W.2d 216 (Tex.Civ.App. — Fort Worth 1970, no writ), considering a motion to dismiss an appeal in circumstances similar to those presented in the case at bar, said:

There may be some merit in the points of error which the defendant desires to present on his appeal, but he admittedly presents himself to this appellate court with what might be termed “unclean hands”, in that he withholds from the trial court, and likewise from the person designated by the court as its agent, custody of the person of the minor child of the parties. In so doing he has flaunted the order of the trial court contrary to principles of justice and to public policy. 4 Am.Jur.2d, p. 734, “Appeal and Error”, Sec. 239, “Failure to obey trial court order”.

See also Geesbreght v. Geesbreght, 570 S.W.2d 427 (Tex.Civ.App. — Fort Worth 1978, writ dism’d).

The appeal is dismissed.


author: SUMMERS, Chief Justice.

text:
    Bill LOONEY, Appellant, v. Bonnie KRIBBS et vir., Appellees.
    No. 1261.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 4, 1979.

      Don M. Connally, Rutledge, Rutledge & Connally, Abilene, for appellant.
    Kevin R. Bartley, Ater & Hirsch, Odessa, for appellees.
   SUMMERS, Chief Justice.

This is an appeal from a default judgment. Appellees, Bonnie Kribbs, and her husband, sued defendants Dane Hudnall, Bill Looney and Wallace Hudnall, a partnership, d/b/a Clear Fork Exploration to recover commissions allegedly earned by ap-pellee in selling certain undivided mineral interests from oil, gas and mineral leases covering lands in Webb County, Texas. No answer was filed by defendants, either individually or as a partnership, and appellee moved for judgment by default. The cause was submitted to the court on January 6, 1978. After hearing the evidence as to the amount of damages, the trial court rendered judgment against the defendants for the sum of $18,000.00, together with attorney’s fees in the amount of $6,000.00. On May 15, 1978, Bill Looney, one of the defendants below, perfected this appeal by filing a Petition for Writ of Error. Thereafter, said appellant made a formal request to the official court reporter for a statement of facts. The reporter certified that he was unable to comply with the request because he was not present when the evidence was given and no other reporter recorded the testimony. Appellant contends that he is entitled to a new trial. We agree, and in so doing reverse as to appellant, Bill Looney.

Appellant’s appeal is predicated upon three points of error alleging that the trial court erred by (1) entering judgment on the pleadings without having a court reporter present to transcribe the proceedings, (2) entering judgment on the proceedings without supporting evidence in the record since the claim of appellee Bonnie Kribbs was unliquidated, and (3) entering judgment against appellant Bill Looney because the record snows no personal service and return of citation nor an appearance in his individual capacity, and the judgment rendered was not supported by the pleadings.

The appellee contends that there was supporting evidence that satisfied the court, that there was proper service upon the partnership, and that appellant was not entitled to a statement of facts because no due diligence was shown by appellant to procure a statement of facts in an alternate form, either by requesting such from the trial judge using his own independent recollection, or by attempting to agree with opposing counsel on a statement.

We shall first address point of error No. 1 because we believe it to be disposi-tive of the case. Without a statement of facts, we are unable to determine the sufficiency of the evidence to support the finding of damages. The damages alleged here are unliquidated, since they consist of the value of commissions earned and the amount of reasonable attorney’s fees. A default does not admit allegations of damages unless the claim is “liquidated and proved by an instrument in writing.” T.R. C.P. 241. If the claim is unliquidated, as here, the court must “hear evidence as to damages.” T.R.C.P. 243; Southern S. S. Co. v. Schumacher, 154 S.W.2d 283, 284 (Tex.Civ.App.—Galveston 1941, writ ref’d w. o. m.). The paramount question to be determined is whether appellant is entitled to a reversal because of the lack of a record of the evidence adduced at the hearing made the basis of the default judgment.

If an appellant exercises due diligence and through no fault of his own is unable to obtain a record of the evidence, a new trial may be required in order to preserve his right to appellate review. Rogers v. Rogers, 561 S.W.2d 172, 173-4 (Tex.1978); Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.1972); Texas Crushed Stone Co. v. Baker, 576 S.W.2d 894, 896 (Tex.Civ.App.— Tyler 1979, no writ); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 314 (Tex.Civ.App.—Dallas 1975, writ ref’d).

Where the appellant, as here, was not present and was not represented by counsel when the testimony was taken, and later discovers that no record was made, the lack of a record cannot reasonably be deemed waived. Texas Crushed Stone Co. v. Baker, supra, at 896; Morgan Express Inc. v. Elizabeth-Perkins, Inc., supra at 314.

In the recent case of Rogers v. Rogers, supra at 173, the Supreme Court follows the Morgan Express rule and makes it clear that diligence in obtaining a statement of facts in a default judgment case does not require the appellant to exhaust the provisions of T.R.C.P. 377(d) and 378. The court said:

“An appellant is not required to undertake to agree with an adversary upon the facts adduced at the trial or to rely upon the unaided memory of the trial judge who decided the merits of the case in order to obtain a Statement of Facts.”

Article 2324 of the Texas Revised Civil Statutes was amended in 1975 to require the court reporter’s attendance only when requested. Appellee, in her brief, argues that there was ho duty of the official court reporter to be present as the appellee made no such request and the appellant was not available to make such requests, hence appellant is not entitled to a new trial. We are not persuaded that this amendment modifies the rule set forth in Morgan Express, supra, and followed by the Supreme Court in Rogers v. Rogers, supra. To adopt such a construction of the amendment would impose a duty upon the defaulting party to request the court reporter’s presence at the very hearing from which the defaulting party is absent. See also Minyard v. Southern Pipe & Supply Co., Inc., 563 S.W.2d 332, 334 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.).

Since the appellant in the present case was not obligated to attempt to agree with his adversary upon an agreed statement of facts and was not required to request the trial judge to prepare a statement of facts, there is no other way of having the matter reviewed on appeal other than upon a retrial of the cause. This conclusion is supported by the authorities already cited, as well as the following authorities: Smith v. Smith, 544 S.W.2d 121, 123 (Tex.1976); Tally Ho Motel v. Wilson, 568 S.W.2d 666, 667 (Tex.Civ.App.—Corpus Christi 1978, no writ); Wallace v. Snyder National Bank, 527 S.W.2d 485, 488 (Tex.Civ.App. — Eastland 1975, writ ref’d n. r. e.); Dugie v. Dugie, 511 S.W.2d 623, 624 (Tex.Civ.App.— San Antonio 1974, no writ).

In view of our disposition of point No. 1, we do not find it necessary to address appellant’s other points of error.

The judgment of the trial court is reversed as to appellant, Bill Looney, and the cause is remanded for new trial.


author: J. CURTISS BROWN, Chief Justice.

text:
    STANDARD FIRE INSURANCE COMPANY, Appellant, v. Melvin L. FRAIMAN, dba Jamaican Apartments, Appellee.
    No. A2134.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 10, 1979.
    Rehearing Denied Oct. 31, 1979.

      Osborne J. Dykes, III, Fulbright & Ja-worski, Houston, for appellant.
    Julius Glickman, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PRESSLER, JJ.
   J. CURTISS BROWN, Chief Justice.

Melvin L. Fraiman, dba Jamaican Apartments (appellee) sued the Standard Fire Insurance Company (appellant) to recover damages, interest and attorney’s fees under the terms of an insurance policy issued by the company and under other theories of liability. After trial to a jury, appellee was awarded damages for his rental losses and for expenses incurred because of appellant’s breach of a policy provision.

On December 4, 1972, and January 29, 1973, appellee’s apartment complex sustained fire damage because of two separate fires. After the insurance company refused to pay amounts claimed for building damage, appellee demanded that the losses be determined through appraisal, as provided for in the insurance policy. Appellant refused to submit to appraisal and appellee brought an action for declaratory judgment to determine the rights of the parties under the appraisal provision. In Standard Fire Insurance Co. v. Fraiman, 514 S.W.2d 343 (Tex.Civ.App. — Houston [14th Dist.] 1974, no writ), the court held that the insured has the right to enforce the appraisal provision of an insurance policy against an unwilling insurer. An appraiser was appointed and on November 15, 1974, the fire losses were paid by Standard Fire Insurance Company according to the appraisal award.

In the present action, filed July 11, 1975, Fraiman sued to recover rental loss, interest on the rental loss amount, damages for the insurer’s breach of the appraisal provision of the policy, interest on the appraisal award, and attorney’s fees.

Appellant’s main contention is that the telephone and travel expenses awarded by the jury are consequential damages for appellant’s refusal to appraise, and as such are not recoverable under a Texas standard fire insurance policy.

Generally, in the normal suit upon an insurance policy because of the insurance company’s refusal to pay, the insured is only entitled to recover under the terms of the policy itself. Gross v. Connecticut General Life Insurance Co., 390 S.W.2d 388, 390 (Tex.Civ.App. — El Paso 1965, no writ). At least in the absence of bad faith or a controlling statute, the insured can not recover consequential damages for breach or repudiation of an insurance policy.

However, appellant did not repudiate the policy, but instead breached a procedural provision calling for the appointment of appraisers in the event the parties failed to agree as to the replacement cost of the building damages. Whether damages may be awarded for the breach of such a provision seems to be a case of first impression in Texas. In an analogous situation Texas courts have sustained actions for damages for breach of an agreement to arbitrate. Owens v. Withee, 3 Tex. 161 (1848); Brown v. Eubank, 443 S.W.2d 386 (Tex.Civ.App.— Dallas 1969, no writ).

Although there are differences between an arbitration agreement and an appraisal provision, there are also similarities in that they both are contractual methods for resolving disputes without litigation. Appellant correctly points out that a remedy for damages was available to plaintiffs in arbitration suits because at common law an arbitration agreement could not be specifically enforced. But just because the appraisal agreement can be specifically enforced by the insured is no reason to prevent a cause of action for damages based on an insurer’s breach of such provision. This is particularly true when the appraisal clause of the policy was designed to expedite claims settlements and to prevent litigation. To not allow damages would allow insurance companies to breach this provision without fear of any consequences and force insureds to bring suit to enforce the appraisal provision.

Appellant contends that the only damages contemplated by the parties to the insurance policies are those that are set out in the policy itself. It is claimed that the policy is similar to a promissory note and as such is just a contract to pay money. The policy, like a promissory note, describes the liability and losses for which the insurer may be liable. The appellant would be correct if this were a normal suit upon an insurance policy. However, as discussed above, this suit is based upon the breach of a procedural provision of the policy and not upon the breach of the entire policy itself.

Appellant next contends that appel-lee is not entitled to recover his consequential damages because the jury found against appellee on the “bad faith” theory of liability and plaintiff’s consequential damages were predicated upon this theory. We do not agree. There is no evidence in the record to show on which theory the case was tried. The breach of the appraisal provision was pled and was undisputed. The jury found, in response to special issues, that appellee suffered damages as a result of appellant’s refusal to appraise. Since a statement of facts was not brought up on appeal, all liability issues on breach of contract that were not submitted must be deemed found in support of the judgment. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946). Thus, we hold that a party clearly breaching an appraisal clause of an insurance policy should be liable in damages caused by such breach.

Under appellant’s third point of error, it is urged that plaintiff’s suit for rental loss was barred by the contractual limitations period in the policy. As regards the limitations period, “the general rule seems to be that limitation runs from the time when the loss becomes due and payable and the right to sue accrues, and not from the time when the loss occurs.” Whitehead v. National Casualty Co., 273 S.W.2d 678 (Tex.Civ.App. — Fort Worth 1954, writ ref’d) (emphasis added).

Appellant claims that the limitations period began April 15, 1973, or sixty days after filing proof of loss for the fire damage. Appellant misconstrues the policy provision. The clause provides:

“the amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.” (emphasis added).

The limitations period began to run sixty days after proof of loss and ascertainment of the loss was made by agreement or an award was filed with the company. There has been no agreement as to the rental loss. The appraisal award, filed on September 24, 1974, is the only award in the record. Furthermore, the proofs of loss for rental losses were not filed until March 10,1975. This is because the losses were continuing and did continue until October 31,1974. There was no way to determine the rental losses until the losses ceased. Therefore, the filing of the suit on July 11,1975 was within the two years and one day limitations period provided for in the policy.

Appellee complains by cross-points that the trial court erred in failing to award interest on the rental loss award and the building loss award. Generally, prejudgment interest is awarded from the date of the accrual of the cause of action if “the damages . . . are complete at a definite time, and the amount is determined by fixed rules of evidence and known standards of value . . . .” Statler Hotels v. Herbert Rosenthal Jewelry Corp., 351 S.W.2d 579 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.). As to the interest on the rental loss amount, Standard Fire Insurance contends that the judgment is correct because the amount cannot be determined by fixed rules of evidence or known standards of value. Appellant also claims that appellee’s demand was excessive and thus interest should be denied. Ingham v. Harrison, 148 Tex. 380, 224 S.W.2d 1019 (1949). However, we believe that this question is determined by a recent supreme court ruling, Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.Sup.1978). In Phillips the supreme court announced the doctrine of equitable interest. It held that Phillips should not be allowed to retain and use Stahl’s money, thereby enjoying a considerable benefit, and not have to pay anything for the use of it. Thus, since Standard Fire Insurance Company retained the money that should have been paid to appellee for his rental loss and made use of such money, it ought not to be unjustly enriched and therefore should have to pay interest on the amount from when it was due and payable.

Appellant claims that no interest is due on the building loss amount because the award was paid within sixty days of the filing of the appraisal award. Therefore, under the terms of the policy, the loss was never payable. While this is true, the reason for the delay was because of appellant’s initial breach of the appraisal provision of the policy. Thus, under Phillips, appellant should not be able to enjoy the use of appellee’s money because of its own wrongful breach of the policy.

Lastly, appellee contends that attorney’s fees should have been awarded in this action. We disagree. Article 2226, Tex.Rev.Civ.Stat.Ann. (Supp.1978) states that its provisions are not applicable to insurance policies issued by insurance companies subject to the Unfair Claims Settlement Practices Act (Article 21.21-2 Insurance Code). Since this is a fire insurance company, it falls within article 21.21-2, section 7, and thus is not within the provisions of article 2226. Because there is no statement of facts in the record and no issues were submitted on the fact of whether appellant falls within the provisions of article 21.21-2, this fact must be deemed in such a way as to support the judgment. The judgment contained no award of attorney’s fees, therefore it must be deemed found that Standard Fire Insurance Company is within the provisions of article 21.21-2 and therefore attorney’s fees cannot be awarded under this statute.

That part of the trial court’s judgment denying Melvin L. Fraiman recovery for interest is reversed, and judgment is here rendered that Melvin L. Fraiman recover from Standard Fire Insurance Company six percent interest on the fire damage loss from July 20, 1973, the date upon which appellant repudiated the appraisal provision of the policy, until the date of tender of the appraisal award; and that six percent interest should be allowed on the rental loss amount from its accrual date on May 10, 1975 until the date of judgment. In all other respects, the judgment is affirmed.

Reversed and rendered in part, affirmed in part.

PAUL PRESSLER, J., not participating.


author: MILLER, Justice.

text:
    Roy Van LEWIS et al., Appellants, v. Don W. BEAVER d/b/a Mid-State Industries, Appellee.
    No. A2142.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 10, 1979.
    Rehearing Denied Oct. 31, 1979.

      Ronald E. Ferris, E. D. Christensen, Houston, for appellants.
    Don F. Russell, Stephen R. Pattison, Dyche & Wright, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   MILLER, Justice.

In their petition for a writ of error, appellants Roy Van Lewis and Melba Lewis disclaim engaging the attorney who accepted service and entered into an agreed judgment, which judgment granted a lien on appellants’ property and foreclosure of such lien. Appellee filed, in this court, a motion to dismiss for want of jurisdiction. Herein, we treat with the motion to dismiss as well as the petition for writ of error, and grant the motion to dismiss.

On June 30, 1978, appellant Roy Van Lewis signed a job order for certain home improvements to be accomplished on a residence at 6006 Polly in Houston. ’ On November 7, appellee sued in the district court of Harris County, Texas, for $16,500.00 for failure to pay for these improvements. Service was had on Attorney Terry R. Lord, purportedly representing appellants, on November 21. On November 22, an agreed judgment was entered granting appellee a lien of $16,500.00 on the residence and foreclosure of such lien. Appellee asserts that these were friendly proceedings instituted to secure financing of the improvements. Apparently the provisions of Art. 16 § 50 of the Texas Constitution relative to homestead liens had not been complied with.

On February 16, 1979, appellants filed their petition for writ of error to which were attached affidavits asserting that they did not participate in the trial nor did they authorize any attorney or agent to participate on their behalf. To his motion to dismiss, appellee attaches an affidavit from Attorney Lord asserting that he had been hired by appellants to act as their attorney in the matter of obtaining financing.

Writ of error is available to an appellant only if he files his appeal within six months of entry of final judgment, [Tex. Rev.Civ.Stat.Ann. art. 2255 (Vernon 1971)]; the error asserted appears on the face of the record [McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961)]; and the appellant did not participate in the actual trial of the case, [Tex.Rev.Civ.Stat.Ann. art. 2249a (Vernon 1971)]. Thus, the question to be determined is whether appellants have satisfied these tests. We hold that they have not.

Obviously, appellants met the test of timely filing.

The provisions of the Texas Rules of Civil Procedure are regarded as mandatory and failure to comply with such rules renders the service thereunder void and of no effect. Hanover Mod. Homes of Taft v. Corpus Christi B. & T., 476 S.W.2d 97 (Tex.Civ.App.-Corpus Christi 1972, no writ). Lemothe v. Cimbalista, 236 S.W.2d 681 (Tex.Civ.App.-San Antonio 1951, writ ref’d).

“In ... a writ of error proceeding, the record must affirmatively show that the court had jurisdiction of the defendant’s person.” Whitney v. L & L Realty Corporation, 500 S.W.2d 94, 95 (Tex.Sup.1973).

Rule 314, Tex.R.Civ.P., in applicable part, provides that “any person against whom a cause of action exists may, without process, appear in person or by attorney, and confess judgment therefor in open court as follows:

(a) . . .
(b) If the judgment is confessed by attorney, the power of attorney shall be filed and its contents be recited in the judgment.”

No power of attorney appears in the record nor is any recitation thereof in the judgment.

Nor does anything in the record indicate that Attorney Lord had authority to accept service on behalf of the appellants. Rule 106, Tex.R.Civ.P., which provides for personal service was not complied with, and hence such service was void.

There being no personal jurisdiction of defendants under either Rule 314(b) or Rule 106, error appears on the face of the record.

Appellees’ petition, filed in the trial court, asked for judgment against defendants of $16,500.00, but did not request a lien on the property and foreclosure of such lien. Both of these remedies were granted by the final judgment. Inasmuch as the judgment did not conform to the pleadings, there was error, Tex.R.Civ.P. 301, which error also appears on the face of the record.

However, having determined that error is apparent on the face of the record, and that the petition for writ of error has been timely filed, we must still hold that petitioners fail to meet the third test. Defendants participated in the trial of the case, under the record, and thus are precluded from appealing the resultant judgment by means of writ of error. No evidence appears in the record to challenge the actions of Mr. Lord as the attorney of record for the petitioners, and appellants cannot by post-trial affidavits deny his authority and thereby obtain review of the judgment by a writ of error. We may not go behind the record in this case. Nutter v. Phares, 523 S.W.2d 292 (Tex.Civ.App.-Beaumont 1975, writ ref’d n. r. e.).

We are mindful in making this decision of the consequences of disturbing the accepted procedure for entry of agreed judgments and the effect a contrary opinion would have on judicial efficiency in the future.

Equitable bill of review, however, is still available to appellants, and, if employed, will enable the trial court to determine at an evidentiary hearing whether, in fact, Attorney Lord was authorized by appellants to accept service and to represent them in the case.

It should be pointed out that in order to prevail in a bill of review, appellants must allege and prove the following: (1) a meritorious defense to the cause of action, (2) which they were prevented from making by the fraud, accident or wrongful act of the appellee, (3) unmixed with any fault or negligence of their own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950).

Petition for Writ of Error dismissed for want of jurisdiction.