text:
    SOUTHWEST LINCOLN-MERCURY, INC., Appellant, v. David W. ROSS, Appellee.
    No. 17234.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 8, 1979.
    Rehearing Denied March 15, 1979.

      Caldwell & Hurst, Steve Underwood, Ernest C. Hurst, Houston, for appellant.
    Donald S. Stirman, Houston, for appellee.
   WALLACE, Justice.

Southwest Lincoln-Mercury, Inc. (Southwest) appeals from a judgment in a suit filed by David W. Ross based on the Texas Deceptive Trade Practice Act (Tex.Bus. & Comm.Code Ann. § 17.41 et seq.). The jury found that Southwest improperly painted, improperly repaired the steering mechanism and alignment, and improperly repaired the choke of Mr. Ross’ car and that each of these repairs was a deceptive trade practice, and/or a failure to comply with warranty and/or an unconscionable action. The jury also determined reasonable attorney’s fees and assessed damages. Southwest asserts no evidence and insufficient points of error, contending that the damage award is unsupported by the evidence and is excessive, and that Section 17.46(a) of the Texas Business & Commerce Code is unconstitutional because it denies due process.

Mr. Ross, while driving a 1976 Lincoln Continental, was involved, on November 28, 1976, in an automobile accident. On December 1, 1976, he took the car to Southwest, asked that obvious body damage and any mechanical difficulties be repaired, and signed the authorization for the work to be done.

On arriving at Southwest on December 12,1976, Mr. Ross refused to accept the car because the new paint finish was blemished with dirt. Mr. Wilson, a Southwest employee, agreed that the paint was unacceptable and had the car repainted at no cost. Approximately two days later, Mr. Ross returned to pick up his automobile. He testified that the color match was beautiful, that there was some paint runs on the fender, and that he accepted the car. He stated that he made no further complaints to Southwest concerning the paint job and that he never had any additional paint work done on the car.

When he left Southwest’s facilities, Mr. Ross noticed that the steering mechanism was not working correctly in that the steering had to be manually straightened out after making a turn. This steering difficulty, Mr. Ross contends, was brought to the attention of Southwest and was never corrected to his satisfaction. He further maintained that he paid to have the steering problem repaired. The repair authorization executed by Mr. Ross on January 11, 1977, states that the steering is to be rechecked and describes the problem. Mr. Ross testified that he never had any additional work done on the steering.

Besides the steering difficulty, Mr. Ross maintained that the car had been running rough and eventually stopped running completely. The car was towed to Southwest where he was told that the choke was sticking and that the car needed a tune up. Repairs were made. After these repairs were made, the car again stopped running and was again towed back to Southwest. Additional work was done, and it was discovered that the fuel was contaminated.

Mr. Ross further alleges that the front end of the car was improperly aligned. At the time of alignment by Southwest, the car had been driven less than 24,000 miles. Six months later a tire blew out and Mr. Ross took the car to to American Tire Company for replacement. He was informed that because the front end of the car was out of alignment the tire warranty was breached. An expert called by Mr. Ross testified that it was impossible to determine what caused the misalignment; that it could be the result of faulty workmanship or the result of a chug hole or bump in the road. The expert further testified that due to the degree of misalignment, the tires would wear out in 2,000 miles. However, he also stated that it would be highly irregular for both sides of the car to be out of alignment to the same degree.

Four special issues were submitted to the jury. The first, and only one in question, inquired:

2. Column 1 Column 2
action or inaction deceptive trade practice, failure to comply with warranty, unconscionable action
1. promised to and/or No failure to deliver
2. improperly painted Yes Yes
3. improperly repaired steering mechanism Yes Yes
4. improperly repaired frame No
5. improperly repaired choke Yes Yes

Under Section 17.50 of the Texas Business and Commerce Code, a consumer may maintain an action if he has been adversely effected by (1) the breach of an express or implied warranty, (2) any unconscionable action or course of action by any person, or (3) the use or employment by any person of an act or practice declared to be unlawful by Section 17.45. To sue for breach of warranty with the breach being the foundation of a claim for treble damages under the Deceptive Trade Practices Act, the buyer must notify the seller that a breach of warranty has occurred. Import Motors, Inc. v. Matthews, 557 S.W.2d 807 (Tex.Civ.App.1977, writ ref’d. n. r. e.). This notification is required by Section 2.607(c)(1) of Texas Business and Commerce Code which provides in pertinent part: Do you find from a preponderance of the evidence that Southwest Lincoln-Mercury, Inc. promised to and/or failed to deliver as promised to David W. Ross his 1976 Lincoln automobile, and/or improperly painted, and/or improperly repaired the steering mechanism, and/or improperly repaired the frame and/or improperly repaired the choke? Answer “Yes” or “No” in Column 1. If you have answered “Yes” to any in Column 1, then answer whether or not such action or failure to act was a deceptive trade practice and/or a failure to comply with an express or implied warranty, and/or an unconscionable act of [sic] course of action under Column 2.

(c) Where a tender has been accepted (1) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.

In Import Motors, Inc. v. Matthews, supra, the plaintiff sued an automobile dealership alleging breach of warranty in connection with the sale of a new automobile. Within a month from the date of purchase, the automobile began using an “inordinate” amount of oil. The car was returned to the dealership several times to correct the problem. Approximately six months after the plaintiff’s last visit to the dealership, the plaintiff took the automobile to another automobile repair shop. There it was discovered that the oil leak had damaged the clutch. The plaintiff filed suit alleging that the automobile dealership had committed a deceptive trade practice by “impliedly representing that its repair service was of customary quality within the automobile repair business, when, in fact, the service was substantially below standard.”

The court, basing its decision on Section 2.607(c)(1) of the Texas Business and Commerce Code and its applicability to Section 17.50 of the same code, held that because the plaintiff did not notify the automobile dealership of the oil leak’s reoccur-rence and thereby afford the dealership an opportunity to cure the leak, the plaintiff was barred from recovering on the basis of breach of warranty. Id. at 809. In our case, Mr. Ross testified that subsequent to the repair work, he advised Southwest by letter that he was unhappy with its work. The letter is not in evidence, and the record does not disclose when the letter was allegedly sent. We are unable to ascertain whether Southwest was given notice as prescribed by Section 2.607(c) of the Texas Business and Commerce Code. Consequently, there is no evidence to support a jury finding of breach of warranty.

An action may also be maintained under the Deceptive Trade Practices Act if the consumer has been adversely affected by “any unconscionable action or course of action by any person.” Section 17.50 Tex. Bus. & Comm.Code. An “unconscionable action or course of action” is defined by Section 17.45(5) of the Texas Business & Commerce Code to be “an act or practice which, to a person’s detriment:

(A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or
(B) results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration

The trial court, in its charge to the jury, described “unconscionable action” as “an act or series of acts which do not contemplate good faith dealing, and through such course of action, the person engaging in such conduct secures an unfair advantage over another person.”

The record in our case fails to disclose unconscionable conduct on the part of Southwest. Mr. Ross intimates in his testimony and the court submitted in Special Issue 1(5) that the repair of the choke may have been unnecessary. The evidence shows that when the automobile was examined, after being towed to Southwest, the choke was stuck wide open and that is what prevented the automobile from starting. The choke was repaired and a minor tune up was performed after which the automobile ran smoothly and was delivered to Mr. Ross. The automobile quit running after Mr. Ross had driven it some sixty miles and was again towed to the dealership. Upon examination of the automobile, Southwest discovered that the fuel was contaminated and that the filters in the fuel tank and the carburetor were also contaminated. This difficulty was repaired and the record does not reflect any further trouble with the automobile’s running smoothly. In each instance, the record discloses an apparent good faith on the part of the dealership to comply with Mr. Ross’s request.

The final means by which Mr. Ross sought recovery is under the umbrella term “deceptive trade practice.” Section 17.46(b) of the Texas Business and Commerce Code provides a “laundry list” of actions that are unlawful per se. This list is not exclusive and will encompass any type of business practice or action which deceives consumers. Spradling v. Williams, 553 S.W.2d 143, 145 (Tex.Civ.App.1977) affirmed 566 S.W.2d 561 (Tex.1978). An act or practice, however, which is not among those listed in Section 17.46(b) requires a jury issue to determine whether the action was deceptive, Spradling v. Williams, supra at 564. Where an unlisted action is involved, the plaintiff must not only obtain a finding that the act or practice occurred, but also that the act or practice was, in fact a deceptive trade practice. Id. at p. 564.

Special Issue 1, in our case, meets these requirements by asking a twofold question: (1) whether the act or practice occurred and (2) if the act or practice occurred, whether it was a deceptive trade practice. The jury found that Southwest improperly painted, improperly repaired the steering mechanism and alignment, and improperly repaired the choke of Mr. Ross’ car. In turn, the jury found that each of these actions was a deceptive trade practice, and/or a failure to comply with warranty, and/or an unconscionable action. As previously discussed, there is no basis for a jury finding of either breach of warranty or unconscionable action. Consequently, the only means by which the judgment may be upheld is if there is sufficient evidence to support a finding of “deceptive trade practice.”

In its points of error 1 & 2, Southwest contends that there is no evidence and, alternately, insufficient evidence to support the jury’s finding that Southwest’s repair of the car was a deceptive trade practice. The court, in its charge to the jury defined “deceptive trade practices” as “a course of conduct that, when performed in trade or commerce, has the tendency and capacity to mislead that portion of the general public toward whom such conduct is directed.” The court further stated — “In determining ‘tendency’ and ‘capacity’ to mislead, you are instructed to look to the overall impression such conduct would have on the general public, including the ignorant, the unthinking, and the unsophisticated.”

In reviewing no evidence points, this court must consider only the evidence and inferences tending to support the jury’s finding. Evidence and inferences to the contrary must be disregarded. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Tex.L.R. 361, 364 (1960). An examination of the record reveals the following: the initial paint repair was unacceptable to both Mr. Ross and Southwest; the car was repainted at no cost to Mr. Ross; Mr. Ross accepted the second paint job although he was not entirely happy with it; no further complaint concerning the paint was ever made to Southwest and no additional paint work was ever done on the automobile in question. This scenario involves “no course of conduct that . . . has the tendency to mislead . . .” Consequently there is no evidence to support the jury’s finding of a deceptive trade practice regarding Southwest’s painting of Mr. Ross’ car.

In its points of error 3 and 4, Southwest asserts no evidence and insufficient evidence to support the jury’s finding that Southwest’s repair of the choke was a deceptive trade practice. Again, there is no evidence of deception. Although the car did quit running and had to be towed in, the only evidence in the record as to the cause of the car’s not running was that the choke was stuck wide open and that the plugs were fouled because of an excess amount of gas going through the choke. This condition was repaired and the car ran properly. Consequently there is no evidence to support the finding that the choke repair was unnecessary or that Mr. Ross was mislead in any way in regard to the choke repair.

Southwest, in Points of Error 5 and 6, maintains that there was no evidence or insufficient evidence that Southwest’s repair of the steering was a deceptive trade practice. Although the special issue only referred to steering, the court allowed the jury to consider evidence of front-end alignment as well. There was evidence to the effect that the car was out of alignment. In addition, a work order dated January 11, 1977 states that Southwest was to recheck the steering. This constitutes evidence that there was a steering problem which was brought to Southwest attention at that time.

In examining an insufficiency point, the court must weigh all the evidence in the case, including that which is contrary to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952); Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.L.Rev. 361, 365 (1960). Mr. Ross testified that the steering was never repaired to his satisfaction. The repair order of January 11,1977, shows that this condition was brought to the attention of Southwest. The record further discloses that Mr. Ross continued to drive the automobile until October of 1977, when he transferred his lease on the automobile to a Mr. Wilkins. Mr. Wilkins was called to testify by the plaintiff and did testify that he was still driving the automobile at the date of the trial. January 24, 1978. Both Mr. Ross and Mr. Wilkins testified that they had not had any repair made to the steering mechanism of the automobile in the year that had lapsed since it was last seen by Southwest. As regards the alignment, Mr. Ross’ own expert testified that both front wheels on Mr. Ross’ car were out of alignment to the same degree; that it is highly irregular but not impossible for both sides to be out the same degree; that the misalignment could possibly have been caused by a bump in the road or a rough railroad crossing; that a tire can get out of alignment five minutes after the car is driven off the alignment rack if it hits a curb or railroad crossing too hard; that due to the degree of misalignment, the tires would wear out in two thousand miles; and that it would be impossible to determine if the misalignment was man-made or the result of a chug hole. He further testified that a tire would wear out at a maximum of two thousand miles on an automobile with the front end out of alignment to the degree that Mr. Ross’ was out of alignment at the time he inspected it. Mr. Ross testified that his car had thirty thousand miles on it when he had a tire blow out. At the time Southwest aligned the front end of the automobile, the car had less than twenty four thousand miles on it. Thus, the car had been driven in excess of six thousand miles and for a period in excess of six months at the time the tire blew out due to the front end being misaligned. In view of this fact coupled with the expert’s testimony that the tires can become misaligned within five minutes if a road hazard is hit, there is insufficient evidence to support the jury’s finding of the deceptive trade practice.

The judgment of the trial court is reversed and this case is remanded.

EVANS and WARREN, JJ., join in this opinion.


source: Caselaw Access Project

author: DOYLE, Justice.

license: Public Domain

text:
    PAN AMERICAN NATIONAL BANK, Appellant, v. HOLIDAY WINES & SPIRITS, INC., Appellee.
    No. 17272.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 15, 1979.
    Rehearing Denied April 12, 1979.

      Thomas C. McMahon, Saccomanno, Clegg, Martin & Kipple, Ramon E. Williams, Houston, for appellant.
    Holtzman, Evans & Urquhart, Jack E. Urquhart; Houston, for appellee.
   DOYLE, Justice.

Appellee, Holiday Wines and Spirits, (Holiday) brought suit to recover $19,078.29 from Appellant, Pan American National Bank, (Pan Am) and Mark Mena claiming that the bank wrongfully offset defendant Mena’s checking account and that Mena had breached his contract to remove certain cases of wine from bondage. Trial was to the court without a jury. Judgment was rendered for Holiday in the amount of $19,-000.00 against Pan Am and in the same amount in favor of Pan Am over against defendant Mena. Pan Am is appealing the judgment against it. The record on appeal consists only of the statement of facts and transcript. There are no findings of fact or conclusions of law.

Mark Mena opened a business-personal checking account with Pan Am. He was a customs broker and provided the service of paying taxes and duties for customers on imported goods. Mena had borrowed $10,-000.00 from Pan Am on July 18,1973, securing his note with real property in Harris County, Texas. In January of 1974, Mena borrowed $20,000.00 from Pan Am, securing this note by accounts receivable and furnishing his financial statement. On August 5, 1974, Mena went to the offices of Fulbright & Crooker and got a check for $41,-008.29 to cover charges on wine he was getting out of bond for Holiday. Mena’s account was overdrawn $4,701.71 at the time he deposited this check. It is disputed what Mena did after depositing the check. It is agreed that he went to the office of Pan Am’s president, where Mena claims he told the president that this money belonged to Holiday. Weldon Peters, Pan Am president, says that Mena merely told him he had taken care of his overdraft.

On August 16, 1974, Pan Am debited Mena’s account in the amount of $20,514.15 to cover his note, bring his payments current on his real estate note and cover the overdraft.

Holiday contends that Pan Am wrongfully offset funds in Mena’s account which belonged to it. Pan Am argues that it was a holder in due course, had altered its position to its detriment and that superior equities had arisen in its favor since the offset.

Pan Am first alleges that the trial court erred in completely failing to file findings of fact and conclusions of law which has prevented the appellant from making a proper presentation of the case on appeal, and that such failure constitutes reversible error.

On June 2,1978, appellant Pan Am timely requested that the court make findings of fact and conclusions of law and filed a reminder of this request on June 30, 1978. The court did not make such findings and conclusions and did not acknowledge the reminder.

This point of error is without merit and we overrule it. The cases clearly show that an objection to the absence of findings of fact and conclusions of law must be preserved by a bill of exceptions. Rule 372, Tex.R.Civ.P. In Smith v. Vankirk, 314 S.W.2d 377 (Tex.Civ.App.—Waco 1958, writ ref’d n.r.e.) the court said:

“In Spradlin v. Rosebud Feed & Grain Co., Tex.Civ.App., 294 S.W.2d 301, 302 (n.r.e.), this court made this statement of the rule, quoting from 3A Tex.Jur., Sec. 507, p. 654: ‘The failure or refusal of the court to file findings of law and fact in response to a proper request therefor, or to file them within the time prescribed, will not be reviewed when it is not made the subject of a bill of exceptions, at least in the absence of a showing in the record that appellant or his counsel was misled by the court, and thereby prevented from presenting a bill in reference to the matter until after the time therefor.’ ”

Further, based upon the provisions of Rule 297, Tex.R.Civ.Proc., merely filing a written reminder for findings and conclusions with the clerk of the trial court is not sufficient. The facts of failing to file findings and conclusions in Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977) are identical with the case before us. In the Lassiter case the court said:

“The request for findings of fact and conclusions of law, as well as the subsequent complaint for failure to file under Rule 297, must be presented to the judge. Merely filing the request and complaint with the clerk is insufficient. Deweese v. Crawford, 520 S.W.2d 522, 527 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.); [and several other cases].”

Pan Am’s second point of error states that the trial court erred in granting judgment to appellee since, as a matter of law, appellant became a holder in due course as to the $41,008.29 item deposited and took same free and clear of all third party claims.

Pan Am alleges it was error for the trial court to give Holiday a judgment because it was based on the holding of National Indemnity Co. v. Spring Branch State Bank, 162 Tex. 521, 348 S.W.2d 528 (1961) and that Tex.Bus. & Comm. Code Ann. § 4.208 (1968) supplants the holding of National Indemnity Co., supra. In that case the court held that a bank may not seize funds belonging to a third party which were held in trust by one of its depositors for the third party to satisfy the debt owed by the agent to the bank, even though the bank had no knowledge that the funds belonged to the third party, if there has been no change in the bank’s position to its detriment and no superior equities have been raised in its favor.

The Fifth Circuit Court in the case of South Central Livestock Dealers v. Security State Bank of Hedley, 551 F.2d 1346 (5th Cir. 1977), had the occasion to examine the law in Texas on the question of a bank’s offset in a case similar to the one now before our court, wherein the court said:

Security State argues, however, that Texas’ adoption of the Negotiable Instruments Law (NIL) in 1919, see generally, Tex.Rev.Civ.Stat.Ann. arts. 5932-48 (1962), and its adoption of the Uniform Commercial Code in 1965, see generally Tex.Bus. & Comm.Code (Tex.UCC 1968), have nullified this line of Texas cases. [Steere v. Stockyards National Bank, 113 Tex. 387, 256 S.W. 586, 589-92 (Tex.Com.App.1923, opinion adopted); and National Indemnity Co., supra.] We are not persuaded . . .We conclude that in such a case as ours, the Texas Supreme Court would adhere to the National Indemnity rule. . it is the bank’s knowledge that the debtor has deposited in his account funds belonging to another and thus held in a fiduciary capacity that precludes the offset.

National Indemnity Co., supra, has been cited with approval in several Texas eases since the adoption of the U.C.C. and Texas Business & Commerce Code: First Nat. Bank in Grand Prairie v. Lone Star Life Insurance Co., 524 S.W.2d 525 (Tex.Civ.App.—Dallas 1975, writ ref’d n.r.e.); and Christian v. First National Bank of Weatherford, 531 S.W.2d 832 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n.r.e.). Both, however, are cases in which the bank had knowledge that the funds belonged to a third party. There are no cases which expressly limit the rule of National Indemnity Co., supra, to situations where the bank has knowledge, but this can be implied from the passage of the U.C.C. and the holdings in subsequent cases. The rule remaining from National Indemnity Co., supra, seems to be that a bank cannot offset an account when it has knowledge that the funds belong to one other than depositor.

Our question is: Did Pan Am have knowledge that the $41,008.29 was Holiday’s money? This is a question of fact. On appeal, when findings of fact and conclusions of law are not properly requested and a statement of facts is brought forward, the appellate court must imply all necessary fact findings to support the judgment of the trial court if such findings are supported by the evidence. Goodyear Tire and Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916 (Tex.1978); Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). And, in the absence of findings of fact and conclusions of law, the appellate court must affirm the judgment of the trial court if the judgment can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, supra; Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

At the trial below testimony was elicited tending to show that Pan Am knew or should have known that the funds in question did not belong to Mena. Typical of the statements tending to show this is the following excerpt from Mena’s testimony:

Q. All right. Now, this money, this $41,008.29 was it to be used for an express purpose?
A. That is correct. It was to be used for the Holiday Wine transaction.
Q. Was there any other purpose for that money?
A. No.
Q. Did you talk with anybody at the bank, Pan American Bank that day?
A. That day I went to Weldon Peters’ office and I told him about the transaction that I was doing, that I was depositing this money for this purpose. And he asked me, ‘Do you have anything in it?’ And I said, ‘Yes, I have my service charge in it.’
Q. Who was Weldon Peters?
A. President of the Bank.
Q. Had you ever talked with him before about your business?
A. Yes, I knew him quite well.
Q. And he had become familiar with your type of business?
A. That is correct.

The foregoing testimony was strongly disputed by Weldon Peters, Pan Am’s president.

“It is well-settled that the trial court’s findings carry the same weight as jury findings by which we are bound, if such findings are supported by probative evidence. In a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony.”

Central Nat. Bank of McKinney v. Booker, 557 S.W.2d 563 (Tex.Civ.App.—Beaumont 1977, writ ref'd n.r.e.); and Norris of Houston, Inc. v. Gafas, 562 S.W.2d 894 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ), wherein we stated:

“There being no written findings in our case, we look to those presumed in support of the order. If the evidence is conflicting, we are not to substitute our judgment for that of the trial court. Arrow Chemical Corp. v. Anderson, 386 S.W.2d 309, 313 (Tex.Civ.App.1965, writ ref’d n.r.e.).”

Pan Am further submits that Art. 342-705 of the Texas Banking Code, 1943, sustains its position on the question of notice required before a bank would be prohibited from exercising offset. The pertinent portion of the Article reads:

“No Bank shall be required to recognize the claim of any third party to any deposit, or withhold payment of any deposit to the depositor or to his order, unless and until the Bank is served with citation or other appropriate process issuing out of a court of competent jurisdiction in connection with a suit instituted by such third party . . . ”

Also urged by Pan Am in support of the notice proposition are certain sections of the Uniform Commercial Code adopted by Texas in 1965 and now encompassed in Tex. Bus. & Comm.Code Ann., such sections being 3.302, 3.303, 3.304, 4.208 and 4.209, which Pan Am argues displace the holding in National Indemnity Co., supra, as to the rights of a bank to deposits in an account without notice of the claims of third parties.

The case of Steere v. Stockyards National Bank, supra, seems still to be the law in Texas concerning notice, offset and equities such as are presented by the facts in the case before us. In the Steere case a livestock commission dealer sold cattle for shippers, deposited the sale proceeds in his personal account and then remitted the net proceeds to the shippers. In the course of such business practice the dealer incurred a personal overdraft and the bank reduced such by applying proceeds deposited in the dealer’s personal account from the sale of cattle. The bank knew of the dealer’s method of handling his business with it. There the court said that where the bank knew or had reason to know that the deposited funds belonged to third parties, it could not apply such funds to the dealer’s indebtedness due the bank. We overrule Pan Am’s second point of error.

We are unable to agree with Pan Am’s third point of error wherein it claims that Holiday’s amount of recovery at most should have been only $10,324.10 rather than the $19.078.29 actually sought by Holiday. The undisputed facts indicate that Pan Am took $41,008.29 from Mena’s account and applied it to Mena’s personal indebtedness to the bank. Thereafter, Holiday received credits totaling $21,930.00, leaving $19,078.29 as the balance due from the offset. The trial court, without apparent objection by Holiday, awarded only a $19,000.00 judgment, which this court will not disturb.

We have examined Pan Am’s fourth point of error and find it without merit. There is testimony in the record to the effect that Pan Am was informed within a few days after the offset in question that the money so offset belonged to Holiday. The fact question of whether Pan Am had altered its position to its detriment or acquired superior equities after such offset was resolved against Pan Am by the trial court. Among the many cases supporting our holding are Cassidy Commission v. Security State Bank, 333 S.W.2d 454 (Tex.Civ.App.—Houston 1960, no writ); First Nat. Bank of Greenville v. First State Bank of Campbell, 252 S.W. 1089 (Tex.Civ.App.—Dallas 1923, no writ).

By cross point Holiday contends that the judgment of the trial court should be increased by granting Holiday prejudgment interest from the date of the offset.

Holiday argues that it was entitled to prejudgment interest from the date of the offset because damages were determinable as of a definite time. We agree that this is the general rule. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80 (Tex.1976); Maxey v. Texas Commerce Bank of Lubbock, 571 S.W.2d 39 (Tex.Civ.App.—Amarillo 1978); Pickens v. Alsup, 568 S.W.2d 742 (Tex.Civ.App.—Austin 1978, writ ref’d n.r.e.) and New York Underwriters Ins. Co. v. Coffman, 540 S.W.2d 445 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n.r.e.).

However, an examination of the allegations set forth in Holiday’s petition reveals that it asked for a judgment of $41,008.29, attorneys fees, interest and court costs, but was only awarded $19,000.00. Thus, a bona fide dispute existed up to the time of the trial court’s final judgment as to the amount of damages actually due, and that Holiday’s demand was found to be excessive. At the trial Holiday impliedly admitted receiving credit for $21,930.00 of the $41,008.29 in question, since it was seeking only $19,078.29. If Holiday’s demand was excessive, it is not entitled to interest on the debt until the date of the trial court’s judgment. Ingham v. Harrison, 148 Tex. 380, 224 S.W.2d 1019, 1022 (1949); Warrior Constructors v. Small Business Investment Company, 536 S.W.2d 382, 386 (Tex.Civ.App.—Houston [14 Dist.] 1976, no writ). We overrule this cross point.

The judgment of the trial court is affirmed.

COLEMAN, C. J., and PEDEN, J., sitting.


author: EVANS, Justice.

text:
    Ex parte John W. CHANDLER, Relator. (Habeas Corpus Proceeding).
    No. 17390.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 1, 1979.
    James M. Murphy, Dallas, for appellant.
    Bresenhan, Martin & Wingate, Maurice L. Bresenhan, Jr., Houston, for appellee.
    Before WALLACE, WARREN and EVANS, JJ.
   EVANS, Justice.

This is an original habeas corpus proceeding resulting from an order holding relator in contempt for failure to pay child support.

The record reflects that on March 11, 1975, the Court of Domestic Relations of Dallas County, Texas, entered a decree of divorce naming the respondent the managing conservator of the parties’ two children and ordering the relator to pay child support in the amount of $200.00 per child each month. On September 30, 1977, relator filed a motion in the 301st Judicial District Court of Dallas County (formerly the Domestic Relations Court of Dallas County) to modify the divorce decree with respect to the child support and access provisions of the decree. On September 1, 1978, pursuant to a motion filed by respondent, and acting under the authority of Section 11.06, Tex.Family Code, the 301st Judicial District Court of Dallas County ordered the proceedings transferred to the District Court of Harris County, Texas.

On December 8, 1978, the respondent filed a motion in the 247th Family District Court of Harris County, Texas, alleging that relator was in contempt for failure to abide by the terms of the divorce decree and that for the period from the date of the decree and through November 1978 he was in arrears in child support payments in the total sum of $8,400.00. On January 8,1979, relator filed a plea to the jurisdiction and in bar of the contempt proceedings, contending that the 301st Judicial District Court of Dallas County had continuing jurisdiction with respect to alleged contempt.

On January 12, 1979, the 247th Family District Court of Harris County adjudged relator to be in contempt of the child support provisions of the Dallas County divorce decree and fixed his confinement in the County Jail of Harris County for a period of 30 days and until he purged himself of such contempt by paying the sum of $6,205.80 to the Harris County Probation Department as child support for his minor children.

The principal question for this court’s determination is whether the Harris County court, to which the Dallas County proceedings were transferred, had jurisdiction to consider respondent’s motion that relator be held in contempt for acts which allegedly occurred prior to the date of the transfer.

The statutory provision of the Texas Family Code which authorizes the transfer of pending proceedings from one county to another specifies that the court to which the transfer has been made “becomes the court of continuing jurisdiction” and that “all proceedings in the suit are continued as if it were brought there originally.” Sec. 11.06(h) Tex.Family Code. It is the respondent’s position that the legislature intended by this enactment to give the court to which the proceedings are transferred full jurisdiction to hear all matters thereafter affecting the parent-child relationship, including contempt proceedings for the enforcement of prior orders issued in the case.

The respondent’s contention is persuasive, but the issue appears to have been determined contrary to his position by the Texas Supreme Court in Ex Parte Gonzalez, 111 Tex. 399, 238 S.W. 635 (1922). In Gonzalez, a contempt decree was issued by the 41st District Court of El Paso County on the basis of a violation of the terms of a prior decree issued by the 65th District Court of El Paso County. Prior to the filing of the contempt motion, the proceedings had been transferred from the 41st District Court to the 65th District Court, but the alleged contemptuous acts occurred prior to the date of the transfer. Both in the instant case and in Gonzalez the transfer was made under a statutory provision that the court to which the transfer was made “had jurisdiction of the case as though the suit had originally been brought in that court.” The Texas Supreme Court, speaking through Chief Justice Cureton, held that only the court in which the proceedings were pending at the time of the occurrence of the alleged violations had the authority to order punishment for contempt.

“The Sixty-Fifth and Forty-First district courts of El Paso county are separate and distinct courts. The jurisdiction of each is plenary and exclusive as to cases filed therein, until a transfer is made in accordance with statute. Neither court is the agency of the other for the purpose of inflicting punishment, or for any other purpose. The power to punish for contempt, whether expressly conferred by some positive enactment or regarded as incident to jurisdiction conferred upon the court, exists for the purpose of enabling it to compel due decorum and respect in its presence, and due obedience to its judgments, orders, and process.” 238 S.W. 636.

The respondent’s motion for contempt shows that the 247th Family District Court of Harris County lacked jurisdiction to consider the allegations of contempt contained in the motion. Thus, relator’s plea to the jurisdiction was not required to be verified. Wilson v. Adams, 15 Tex. 323 (Tex.Sup.1855).

Since the 247th Family District Court of Harris County lacked jurisdiction to consider the matters contained in respondent’s motion for contempt, it is unnecessary to determine whether the contempt order is otherwise void.

The relator is ordered discharged from custody.


author: MURRAY, Justice.

text:
    Donald SPICER and wife Alice Spicer, Appellant, v. GREAT SERVICE, INC., Appellee.
    No. 16142.
    Court of Civil Appeals of Texas, San Antonio.
    March 7, 1979.

      Robert I. Kahn, San Antonio, for appellant.
    Forrest A. Bennett, Bennett & Leger, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

Appellants, Donald and Alice Spicer, brought suit against Great Service, Inc., and Clyde Deckard under the Deceptive Trade Practices — Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.41, et seq. (Vernon Supp.1978-1979). Clyde Deckard entered into a settlement agreement with appellants prior to trial. The case was tried before a jury, and at the conclusion of appellee’s evidence the trial court granted an instructed verdict for defendant, Great Service, Inc. Appellants then perfected their appeal to this court.

This suit arose out of the transaction in which the Deckards sold their home to appellants. During the negotiations for the sale, appellants requested as a condition of the purchase that the plumbing and the heating and air conditioning systems be completely inspected. The realtor chose and paid Great Service, Inc., to make the inspection and file an inspection report. The inspection report stated, “The Carrier central air conditioning system and the Coleman central heating system are both in good working order.” The inspection report, which was made on November 11, 1976, the day after the inspection, also stated that this report “represents the actual condition of the above equipment as of the date of this inspection and is not a warranty for future use of the equipment.”

Appellants moved into the house on December 22, 1976, and in March 1977 the furnace became inoperable. Appellants then called County Wide Equipment Company, who replaced the furnace and heating system. As a result, appellants brought this action contending that the representation made by Great Service, Inc., in its inspection report was false, misleading, and deceptive because the furnace was not in good working order at the time of the inspection. Appellants alleged that Great Service, Inc., violated sections 17.46(a), (b)(7), and (b)(13) of the DTPA by engaging in false, misleading, and deceptive conduct. Appellants further alleged that appellee’s conduct was unconscionable as defined by section 17.45(5) of the DTPA.

The only issue presented on appeal is whether there was any evidence of appellants’ cause of action to raise a material fact issue for the jury’s determination. The rule is well settled that it is error to instruct a verdict when the evidence raises any material fact issue. In passing upon the question of the authority of the trial court to instruct a verdict, the evidence must be considered in the light most favorable to the party against whom the verdict is instructed. An instructed verdict is warranted only when the evidence shows that no other verdict can be rendered and the winning party is entitled to judgment as a matter of law. When there is any conflicting evidence, either direct or circumstantial, in the record of a probative nature, a determination of the issue is for the jury. Texas Employers Insurance Ass’n v. Page, 553 S.W.2d 98 (Tex.1977); Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930). To make this determination, the trial court, without passing upon the credibility of the witnesses, must accept as true all evidence which, when liberally construed in favor of the adverse party to the motion for instructed verdict, tends to support the adverse party’s contention. The trial court must also indulge every reasonable inference deductible from the evidence in the adverse party’s favor and disregard all contradictory evidence favorable to the mov-ant. If this evidence amounts to more than a scintilla, a fact issue is raised. Humphreys v. Haragan, 476 S.W.2d 880 (Tex.Civ.App.—Amarillo 1972, no writ); 3 R. McDonald, Texas Civil Practice § 11.28.2 (1970).

In deciding this case, it is necessary to summarize the evidence in the light most favorable to appellants. Here, both Donald and Alice Spicer testified that when they first looked at the home in October 1976, they noticed a musty animal-like smell, which seemed to permeate the house. The odor was present before and after the inspection by Great Service, Inc., on November 10, 1976, and continued until the furnace and heating system were replaced in March 1977. Relying on the report of Great Service, Inc., that the furnace and heating system were in good working order, appellants did not at first attribute the odor to the heating system. During the first two months they owned the house, appellants repainted the interior of the house and replaced the rugs and cabinet tops in an effort to eliminate the odor. In January the Spicers noticed that the odor was strongest near the heating ducts, that the furnace seemed to be getting extraordinarily hot, and that the interior of the equipment closet, which housed the furnace, was discolored from excessive heat. In March appellants called in County Wide Equipment Company to inspect the heating system. As a result of this inspection, County Wide Equipment Company replaced the furnace and heating system which according to appellants’ testimony constituted part of their damages. Appellants also testified that they would not have purchased the house at the price they did without the assurance that the heating system was in good working order.

Donald Lehr, sales manager for County Wide Equipment Company, testified that he had been in the same house during the winter of 1975-76 to give the Deckards an estimate on the cost of replacing their furnace. He testified that in March 1977 County Wide removed about two feet of wet, compacted bird nesting from the exhaust flue of the furnace and that additional nesting remained. He also testified that it would have taken longer than three months for the nesting to accumulate. The wet nesting, which emanated the animal-like odor, had clogged the exhaust flue and prevented the exhaust from completely escaping. This blockage caused the flue gases to back up and spread the animal-like odor throughout the house. In addition, the backup of these gases caused excessive heat to build up in the furnace which discolored the interior of the equipment closet. He further testified that a competent inspector would have noted this discoloration and continued the inspection to determine its cause.

Mr. Lehr further testified that the inside of the furnace was very badly rusted and that this amount of rust could not accumulate in three or four months. The excessive rusting was caused by water created from the condensation of improperly combusted gas. Mr. Lehr noted that a competent inspector should have been warned by the excessive rust. In addition, the furnace had been recently painted silver. From all of the above, Mr. Lehr concluded that the inspection was not properly conducted because all these conditions existed during appellee’s inspection on November 10, 1977.

During appellee’s motion for instructed verdict, the trial court, after reviewing Mr. Lehr’s testimony with appellants’ counsel in chambers, even stated “[there is] much more evidence for the plaintiff than what I have to determine in my own mind after hearing the entire case or matter.” When there is some evidence regarding a fact issue, it is the peculiar province of the jury to find the facts of the case because the jury, not the court, is the fact finding body. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951).

We believe that the evidence in this case raises a fact issue on appellants’ damages and on whether appellee’s statement that the heating system was in good working order at the time of the inspection is false, misleading, or deceptive. Thus, the trial court erred in rendering an instructed verdict in this case.

Accordingly, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

      . All future references to statutory sections are to the Deceptive Trade Practices — Consumer Protection Act, hereinafter referred to as the DTPA.


text:
    John Henry EANS, Appellant, v. GROCER SUPPLY CO., INC., Appellee.
    No. 17227.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Order Requiring Remittitur Feb. 15, 1979.
    March 8, 1979.
    Rehearing Denied April 5, 1979.

      Conner & Dreyer, Jerry D. Conner, Houston, for appellant.
    Talbert, Giessel & Stone, Inc., Alice M. Giessel, James Barker, Friloux, Smith & Abney, David Reed, Richard E. Stephanow, Houston, for appellee.
    Before EVANS, WARREN and WALLACE, JJ.
   EVANS, Justice.

This is an action for malicious prosecution growing out of charges filed against the plaintiff for misdemeanor theft.

On January 29, 1974, the plaintiff John Henry Eans was working as an employee of Grocers Supply, Co., Inc., a wholesale food supplier, at its frozen food locker. The plaintiff had another job during the daytime at the Riverside Animal Hospital, and he worked for Grocers Supply from 9:30 P.M. to about 5:30 A.M. On the night in question, he had reported to his job at Grocers Supply and parked his car in the company lot outside a security fence. After presenting his identification badge at the guard gate, he entered the plant, and walked to the locker area where he put on insulated clothing to begin his work in the frozen food locker. About 4:30 A.M. he was summoned to the shipping area by a loud speaker and was met there by his supervisor, Pinkston Bell, and other company employees. He then walked with Bell to the main guard gate where he was met by Sergeant D.D. Baker, a City of Houston police officer privately employed by Global Security, Inc. to advise Grocers Supply on security matters, and by Ronald Kruise, a former police officer who was employed by Grocers Supply as its security supervisor. The plaintiff proceeded with this group to the parking lot where, upon opening the trunk of his vehicle, a package of luncheon meat and a package of frozen strawberries were found. Sergeant Baker placed the plaintiff under arrest and caused him to be jailed and subsequently charged with misdemeanor theft. The original theft action was later dismissed upon the failure of the security supervisor Kruise to appear as the complaining witness; however, the theft charge was subsequently reinstituted against the plaintiff after Grocers Supply wrote a letter to the prosecuting attorney explaining why Kruise had failed to appear and testify at the first trial. The second action also terminated in a dismissal, and the plaintiff then brought this suit for malicious prosecution against Grocers Supply, Global Security, Inc., and D.D. Baker.

The instant cause was tried to a jury, and, at the close of the evidence, the court granted a motion for an instructed verdict filed by the defendants, D.D. Baker and Global Security, Inc. It overruled a similar motion filed by Grocers Supply and the case was then submitted to the jury on special issues. The jury found: (1) that the plaintiff was innocent of the charges filed against him; (2) that Grocers Supply had instituted the criminal prosecution against him; (3) that Grocers Supply had acted without probable cause, and (4) with malice in instituting the criminal proceedings; (5) that the plaintiff had sustained damage as a result of the prosecution; (6) that $100,-000.00 would fairly and reasonably compensate him for such damage; and (7) that he should receive an additional sum of $5,000.00 as exemplary damages. The trial court overruled the plaintiff’s motion to enter judgment in his favor on the jury’s verdict and, instead, it entered a judgment non obstante veredicto in favor of Grocers Supply. This is an appeal from that judgment.

In four points of error the plaintiff contends that the trial court erred in disregarding the jury’s answer to special issue no. 3 and in finding, as a matter of law, that there was probable cause for the institution of criminal proceedings. In reviewing these points all evidence must be considered in the light most favorable to the plaintiff against whom the judgment n. o. v. was rendered, and every reasonable intendment deductible from the evidence must be indulged in his favor. Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974). Thus, this court cannot sustain the judgment n. o. v. unless the record reflects that there was no evidence upon which the jury could have based its finding or unless the evidence shows, as a matter of law, that the defendant, Grocers Supply, was entitled to judgment in its favor. Monesson v. Champion Intern. Corp., 546 S.W.2d 631, 636 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). At the time of the occurrence in question, the plaintiff was an unmarried black male, 37 years of age, residing with his sister in the City of Houston. He had worked at two jobs some 20 years and had worked for Grocers Supply some seven years. At the time of trial he was employed by Cameron Iron Works in its aviation department at Hobby Airport from 8:00 A.M. to 5:00 P.M., and in the evening he worked as a janitor for ITT on Silsbee Road. The plaintiff had never before been arrested or in jail. He had never been accused of a crime except for one occasion when Clarence Chadwick, the personnel director for Grocers Supply, had accused him of selling merchandise on the street. However, after the accusation was made, the plaintiff never heard anything further about the matter.

Upon completing his work at his daytime job on the evening in question, the plaintiff drove to Grocers Supply, parked his car on the company parking lot, and after presenting his employee identification badge to the guard at the entrance gate, he proceeded to the locker area where he donned insulated clothing and boots to work in the frozen food locker. His job that night was to keep the place clean. The plaintiff was afforded a 30 minute lunch break between the hour of 11:30 P.M. and midnight, and ordinarily he would either eat or play dominoes during his lunch break; however, on the night in question, he did not eat lunch, and since there was no domino game he slept during his lunch break. He testified that he did not leave his work area during the time he was at work and that his fellow employees, his supervisor and the gate guard would have known if he had left his authorized work area.

The plaintiff further testified that when he left his automobile in the parking lot it was locked and he put his keys in his pocket. His keys were needed to open his clothes locker, and he kept his car key on a key chain in his street clothes pants pocket over which he wore insulated clothing. When he arrived at the guard shack, Sergeant Baker told him that he, Baker, had received a telephone call from “someone” who advised him that the plaintiff had gone to his car at the lunch break and had put something into it. Baker told the plaintiff that he had to search his ear and marched him to his automobile. The plaintiff asked Baker to check around to determine whether he had left his authorized work area, but Baker refused and “actually laughed” at him. Baker ordered the plaintiff to open the car, and the plaintiff first opened the driver’s side. Baker did not look in the car. The plaintiff then was directed to open his trunk, and when the trunk was unlocked and opened, several boxes of frozen food were revealed. The plaintiff testified that when he opened his car door nobody bothered to look into the car; they “just stood there looking around laughing”. He said that when he opened the trunk of his car and his trunk “clicked,” Baker said “You are under arrest”. He testified that he made no objection to the opening of his automobile since he had “nothing to hide” and that despite his request to Baker that an inquiry be made of his fellow employees to determine whether he had left the frozen food area, Baker refused to do so; Baker only laughed at this request. The plaintiff was then taken back inside for a brief meeting with his personnel director, and afterward was jailed and charged with misdemeanor theft. He spent most of the following day in jail and incurred bail bond and attorney’s fees. After the first charges were dismissed, the charges were refiled and an additional arrest warrant was issued and mailed to him. He then incurred additional bond and attorney’s fees and was compelled to attend a criminal court hearing once, sometimes twice, per month for a year before the proceedings were terminated in his favor.

A party who causes a criminal complaint to be filed against another person does so on probable cause where, in good faith, he makes a full and fair disclosure of the facts and circumstances known to him and where, on the basis of such disclosure, a criminal complaint is thereafter filed. Sebastian v. Cheney, 24 S.W. 970 (Tex.Civ.App.) rev’d on other grounds 86 Tex. 497, 25 S.W. 691 (1894). However, unless the party causing the complaint to be filed acts in good faith in disclosing to the prosecuting attorney all material facts known to him, probable cause does not exist. J.C. Penney Co. v. Gilford, 422 S.W.2d 25, 30. (Tex.Civ.App.-Houston [1st] 1967 writ ref’d n. r. e.) Ada Oil Company v. Dillaberry, 440 S.W.2d 902 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ dism’d). The reporting party is required to bring to the attention of the prosecuting attorney all material facts known to him relating to the matter, including facts from which the district attorney by making further investigation might determine that the accused was not guilty of any offense. J.C. Penney Co. v. Gilford, supra.

There is evidence in the record from which the jury could reasonably have concluded that a good faith disclosure of all material facts was not made to the prosecuting attorney when the plaintiff was jailed and charges were instituted against him. The jury could have decided from the testimony that Sergeant Baker had arbitrarily refused to inquire of the gate guard or the plaintiff’s fellow employees with respect to the plaintiff’s whereabouts during the evening in question and that he had failed to disclose to the District Attorney’s office the possibility that such information might exculpate the plaintiff of the offense charged. The record reflects that the plaintiff’s story could have been easily verified had Sergeant Baker chosen to disclose this information, and that, instead, he chose to reveal only that information which was incriminating to the plaintiff.

The jury could also have inferred from the evidence that the frozen food had been intentionally placed in the plaintiff’s trunk by persons acting on behalf of Grocers Supply. There was evidence that Grocers Supply had been long plagued with theft of its merchandise from external sources and that it suspected thefts from internal sources. Grocers Supply had employed Baker to advise it on security matters and had hired Kruise, a former police officer, as its salaried employee to act as its security supervisor. Kruise’s duties were to investigate and then assist in the prosecution of thefts, and Baker’s duties were to advise Grocers Supply on security matters and to assist it in the filing of criminal charges. Grocers Supply had spent large sums of money to stop the thefts, but it had never succeeded in doing so. Kruise testified that at the time of the instant occurrence, Grocers Supply was leaning toward an attitude of relentless prosecution in cases of theft. Sergeant Baker testified that he had received a telephone call from “someone” advising that the plaintiff had placed something in his car during the lunch break; however, at the time of trial, Baker testified that he could not remember the name of this informant. The plaintiff testified that after the packages of frozen food were discovered in his trunk, Kruise indicated by his statement he had “something to do with it”, and Kruise admitted upon cross-examination that during a trial recess he had stated “in a joking manner” that he had been involved in planting the contraband packages in the plaintiff’s trunk. On the basis of the circumstantial evidence contained in the record, the jury could have reached the conclusion that the representatives of Grocers Supply had conspired to place blame on the plaintiff for the past thefts of merchandise from the company premises and that for such reason there was no probable cause for the institution of any criminal action against the plaintiff.

The record contains evidence which is legally sufficient to support the jury’s finding that Grocers Supply acted without probable cause in initiating the criminal action against the plaintiff and the plaintiff’s first three points of error will be sustained. The jury’s finding in this respect is not against the great weight and preponderance, of the evidence, and Grocers Supply’s sixth cross point of error is overruled.

By cross point the defendant contends that there is no evidence to support the jury’s answer to special issue no. 2 and that such finding is against the great weight of the evidence because Grocers Supply did not, itself, institute criminal action against the plaintiff, such charges having been instituted by the City of Houston and filed by the office of the District Attorney. The criminal proceedings were first instituted against the plaintiff on the basis of an offense report filed by D.D. Baker, then a member of the Houston Police Department, but also privately employed as a security consultant for Grocers Supply. Under the evidence presented, the jury was justified in concluding that criminal charges were instituted on behalf of Grocers Supply. Furthermore, the jury could reasonably have concluded from the evidence that after the dismissal of the initial criminal proceedings brought against the plaintiff, the criminal charges were refiled on the basis of the action of Grocers Supply indicating its continued interest in the prosecution of the matter. The record contains evidence which is legally sufficient to support the jury’s finding that Grocers Supply was responsible for the initiation of criminal charges against the plaintiff, and such finding is not against the great weight and preponderance of the evidence.

Grocers Supply further contends by cross point that the evidence is legally insufficient to support the jury’s finding to special issue no. 4 that Grocers Supply acted with malice. Under the evidence contained in the record, the jury could have inferred malice from the manner in which the employees of Grocers Supply treated the plaintiff at the time of his arrest and thereafter. For example, there was evidence showing that even though Grocers Supply knew the home address of the plaintiff, it sent a telegram to him at his work address, notifying him that he had been fired for taking property from company premises without permission. Under the circumstances presented by the record, the jury was authorized to infer malice from the want of probable cause. Biering v. First Nat. Bank, 69 Tex. 599, 7 S.W. 90 (1888). These cross points are overruled.

In its remaining cross points Grocers Supply complains that the jury’s award of $100,000.00 as actual damages and $5,000.00 as exemplary damages are against the great weight and preponderance of the evidence and are so grossly excessive as to indicate bias and prejudice.

The Restatement of Torts, Second, Section 670, at page 443, states:

§ 670. General Damages
When the essential elements of a cause of action for malicious prosecution have been established, the plaintiff is entitled to recover damages for
(a) the harm to his reputation resulting from the accusation brought against him, and
(b) the emotional distress resulting from the bringing of the proceedings.

Section 671, entitled Special Damages states:

§ 671. Special Damages
When the essential elements of a cause of action as for malicious prosecution have been established, the plaintiff is entitled to recover for
(a) the harm legally caused by any arrest or imprisonment suffered by him during the course of the proceedings, and
(b) the expense that he has reasonably incurred defending himself from the accusation, and
(c) any specific pecuniary loss legally caused by the proceedings.

In considering the matter of damages the jury was entitled to consider any physical injury suffered by the plaintiff, any injury to his feelings and reputation, any injury to his property, and any loss of his time and expense. Equitable Life Assurance Society of United States v. Lester, 110 S.W. 499 (Tex.Civ.App., 1908, no writ).

The plaintiff did not testify that he had suffered any physical injury to property as a result of charges filed against him. He made no claim for lost wages, and he did not contend that he had suffered any loss with respect to his daytime job at Riverside Animal Hospital. After he had been dismissed from Grocers Supply, he went to work for ITT, and there is no indication that the charges filed against him had any adverse effect on his work for that employer. There was testimony that he had been required to pay legal and bond fees totaling about $1,550.00 as a result of the charges filed against him.

The trial court instructed the jury that it might take into account in connection with the damage issues the elements of mental anguish, embarrassment and humiliation and any necessary bond fees and attorney’s fees in defense of the criminal prosecution.

In assessing actual damages the jury was entitled to consider the costs and attorneys fees which the plaintiff was compelled to incur in defense of the criminal action. Dallas Joint Stock Land Bank of Dallas v. Britton, 114 S.W.2d 907 (Tex.Civ.App.—Waco 1938, reversed on other grounds 134 Tex. 529, 135 S.W.2d 981, 1940). The other elements of damage, mental anguish, embarrassment and humiliation, were matters peculiarly within the province of the jury’s determination and much discretion must be allowed the jury in fixing the amount of its award. Green v. Meadows, 527 S.W.2d 496 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.)

The plaintiff testified that he “felt bad” whenever he had to make a court appearance. His sister testified that he had never been in trouble before and that she had seen some changes in him since his arrest. He is withdrawn, goes through strains of depression and is restless. He could not sleep when he had to go to court. He did not socialize like he used to, and he expressed present feelings of anxiety about being branded a criminal.

The evidence supports the jury’s award of both actual and exemplary damages, and the jury’s findings in such respect are not against the great weight and preponderance of the evidence. The question remaining is whether the jury’s award is excessive.

In the absence of circumstances tending to show that the jury’s award was the result of passion, prejudice, or other improper motive, or that the amount fixed was not the result of a deliberate and conscious conviction in the minds of the jury and court, or that such award was so excessive as to shock the court’s sense of justice, the jury’s verdict should not be disturbed. Green v. Rudenske, 320 S.W.2d 228 (Tex.Civ.App.—San Antonio 1959, no writ); Clark v. Smith, 494 S.W.2d 192 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.). It is not the prerogative of the appellate court to substitute its judgment for that of the jury, notwithstanding that it might have awarded a lesser sum as a factfinder, and every, intendment must be given to the evidence supporting the jury’s verdict. Hammond v. Stricklen, 498 S.W.2d 356 (Tex.Civ.App.-Tyler 1973, writ ref’d n. r. e.); Dallas Transit Co. v. Newman, 380 S.W.2d 818, 825 (Tex.Civ.App.—Dallas 1964, writ dism’d). In considering whether the amount of damage found by the jury is excessive, the court is required to exercise its sound judicial judgment and discretion in the ascertainment of the amount that would be reasonable compensation for the injury sustained and to treat the balance as excess. Green v. Meadows, supra, at page 498.

It is this court’s determination that the jury’s award of actual damage is excessive in the amount of $30,000.00, and Grocers Supply’s eleventh cross-point is therefore, sustained. Grocers Supply’s remaining cross-points relating to the damage issue are denied.

The error of the trial court in entering a judgment non obstante veredicto in favor of the defendant, Grocers Supply Co., Inc., requires that the judgment of the court below be reversed, and upon such reversal this court is empowered to render a judgment on the jury’s verdict as the trial court should have rendered. Rule 434, Tex.R.Civ. Pro. Since this court has determined that the jury’s award is excessive in the amount of $30,000.00, it is ordered that if the plaintiff files a release of said award within ten days from the date hereof, judgment is rendered in favor of the plaintiff against said defendant, Grocers Supply Co., Inc., for the sum of $70,000.00, as actual damages and $5,000.00, as exemplary damages with interest thereon at the legal rate from and after the date of the trial court’s initial judgment in this cause; otherwise the judgment of the trial court is reversed and the cause remanded for a new trial.

ORDER AFTER REMITTITUR

In this court’s opinion and judgment entered February 15, 1979, a remittitur in the amount of $30,000 was suggested and such remittitur having been timely filed in accordance with said opinion and judgment, the trial court’s judgment rendered in favor of the defendant, Grocers Supply Co., Inc., is reversed and judgment is rendered that the Plaintiff, recover from the Defendant, Grocer Supply Co., Inc., the sum of $70,000, as actual damages, and the sum of $5,000, as exemplary damages, and that said judgment in the total sum of $75,000 shall bear interest at the rate of 9% per annum from and after March 31, 1978, the date of entry of the trial court’s judgment.


author: PEDEN, Justice.

text:
    Jack L. SHERROD et al., Appellant, v. Victor R. BAILEY et al., Appellee.
    No. 17284.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 8, 1979.
    Rehearing Denied April 5, 1979.

      William W. Byrd, Houston, for appellant.
    Robert H. Hull, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   PEDEN, Justice.

This is an appeal by Jack L. Sherrod et al. (Developers) from a judgment in favor of Victor R. Bailey et al. (Residents) based primarily on fraudulent misrepresentations and breach of contract. The jury found in response to special issues that 1) Sherrod promised Residents he would build roads that conformed to Harris County standards, 2) he failed to do so, 3) he made the promises with intent that the roads would not be so built, 4) he made the promises to induce Residents to buy lots, and 5) that the Residents reasonably relied on the promises to their detriment. The jury assessed actual damages (Issue 6) and punitive damages (Issue 7). The trial court granted the Developers’ motion to disregard the jury’s finding of punitive damages but entered judgment for the Residents in accordance with the jury’s answers to the first six special issues.

On appeal the Developers assert insufficiency of the plaintiffs’ pleadings, improper measure of damages, violation of the parol evidence rule, erroneous admission of expert testimony, and no evidence that Sher-rod made a verbal promise. Residents maintain by cross-points that there is evidence to support an award of punitive damages and that the trial court erred in disregarding the jury’s award of them. We reverse and remand.

From 1971 until 1975, Sherrod sold residential lots in two subdivisions, Spring-Stuebner Estates and Spring-Stuebner Estates Section II. Residents are all owners of lots in these two unrecorded subdivisions located in north Harris County.

The Residents assert that Sherrod orally promised that the roads in the subdivision would be brought up to Harris County standards so that the county would maintain them; Sherrod denies ever having made such a promise. The Residents have been attempting to maintain the roads themselves, and photographs in evidence demonstrate that the roads contain deep ruts and potholes.

Developers’ points of error 1, 2, 3, 4, and 6 assert insufficiency of the Residents’ pleadings. In their first two points, the Developers say the trial court erred in rendering judgment for the plaintiffs because they did not specifically plead any facts or otherwise file pleadings to support the submission of Issue 6 asking what losses, if any, were sustained by the Residents on the current value of their lots and improvements with roads as they now exist as compared with what the value would be if the roads were built to Harris County standards. In their fourth point, the Developers complain that the trial court erred in overruling their objections to the court’s charge based on the lack of pleadings to support the submission of Issue No. 6. That issue, together with its instruction, was submitted as follows:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate the plaintiffs listed below for their damages, if any, which you find from a preponderance of the evidence proximately resulted from the occurrences inquired about herein?
You may consider the following element of damage, if any, and none other:
Loss in market value, if any, of each particular lot and improvements situated thereon with roads as they now exist in said subdivision as compared to what the value would be if roads were to Harris County Standards.
Answer in dollars and cents, if any.”

The purpose of pleadings is to put one’s opponent on notice as to the parameters of the forthcoming battle.

Defects in the opponent’s pleadings are not waived if challenged by special exception, objection to evidence, motion to strike testimony, motion for instructed verdict, or objection to the charge. When specific complaint has been made and an adverse ruling obtained from the court, there will be no implied consent to the trial of issues outside the pleadings. 2 McDonald Texas Civil Practice 49, Pleading: General § 5.18 (1970).

The relevant portions of the Residents’ petition were:

Count III
(Stating a Cause of Action for Breach of Contract)
At the time Plaintiffs purchased their property in Spring-Steubner Estates and Spring-Stuebner Estates Section II, Defendants made oral representation to Plaintiffs that the roads and streets in Spring-Stuebner Estates and Spring-Steubner Estates Section II subdivisions would be brought up to Harris County standards so that the roads would be maintained by Harris County.
The Defendants have not brought the roads in the subdivision up to Harris County standards at any time since selling of lots in the subdivisions began in 1971. Defendants have breached this agreement, which breach has caused Plaintiffs’ loss.
Plaintiffs pray for specific performance of the agreement to bring the roads in the subdivision up to county standards and have them maintained; or, in the alternative, Plaintiffs plead for the cost of bringing the roads up to county standards and have the county take them over. The cost of paving the roads and reworking the ditches to provide adequate drainage would be approximately One Hundred Seventy-Five Thousand Dollars ($175,000.00), of lowering the three Tenneco pipelines would be at least Two Hundred Fifty Thousand Dollars ($250,000.00), and of lowering the Amoco pipeline would be approximately Twenty Thousand Dollars ($20,000.00), for which Plaintiffs here pray judgment.
Count IV
(Stating a Cause of Action for Fraud under Texas Business and Commerce Code, Sec. 27.01)
XII.
Plaintiffs allege that Defendants willfully represented to Plaintiffs that the roads in the subdivision would be brought up to county standards and that maintenance would be assumed by Harris County. This material promise to bring the roads up to county standards was made by the Defendants with the intention of not fulfilling it and for the purpose of inducing the Plaintiffs to enter into the purchase contract with the Defendants herein. Plaintiffs relied upon these representations in entering into their contracts to purchase their several parcels of property. The difference in the value of the property as represented and the value of the property as sold exceeds Seventy-Five Thousand Dollars ($75,000.00), for which Plaintiffs herein pray.
Additionally, Plaintiffs further ask this Honorable Court that punitive damages be awarded to Plaintiffs for Defendants’ willful and fraudulent acts in the amount at least twice the actual damages found herein, but in no event less than One Hundred Fifty Thousand Dollars. ($150,-000.00).
Count VI
(Stating a Cause of Action for Mandatory Injunctions Incorporating All Allegations from Paragraphs I through XIII).
XIY.
Plaintiffs plead in the alternative in equity that this Court issue a mandatory injunction against Defendants to force Defendants to cause the roads in Spring-Stuebner Estates and Spring-Stuebner Estates Section II to be brought up to Harris County standards as defined in Exhibit “F” attached hereto.
XVI.
In the alternative to all of the above, and without waiver thereof, if the agreements to provide a restricted subdivision were not sufficiently definite, then Defendants are estopped to deny this insufficiency because Plaintiffs herein have relied on these promises heretofore set out to their great detriment and loss. Plaintiffs would be entitled to recover the amounts herein sought.
WHEREFORE, premises considered, Plaintiffs pray that Plaintiffs be awarded damages as aforesaid or other remedies as aforesaid, all costs of court, and all such other and further relief, both in law and in equity, to which they may be justly entitled.

We sustain the appellants’ first, second and fourth points of error. As to the roads in question, the Residents had asked in a prior petition for common law damages, but the Defendants were entitled to conclude from the deletion of that aspect of the claim, that it was being abandoned. As we have seen, their trial petition explicitly sought 1) specific performance of the oral representations, or 2) the cost of bringing the roads up to county standards, 3) the difference in the value of their properties as represented and as sold, 4) punitive damages, 5) a mandatory injunction to force defendants to bring the roads up to Harris County standards, and 6) general relief, (emphasis added)

“When items of special damage are claimed, they shall be specifically stated.” Rule 56, Texas Rules of Civil Procedure. Special damages are those that proximately result from the defendant’s wrongful conduct but are of such an unusual nature that they would normally vary with the circumstances of the individual case in which they occur. General damages are those that are so usual an accompaniment of the kind of breach or wrongdoing alleged in the complaint that the mere allegation of the wrong gives sufficient notice. 2 McDonald, Texas Civil Practice 124, § 6.17.1 (1970).

We cannot say that a necessary result of a fraudulent misrepresentation as to quality of roads in an undeveloped subdivision will be purchasers’ losses in value of their properties as improved at the time of trial as compared to what they would be if the roads were as represented. This was an item of special damages, and facts raising them should have been specially pleaded.

Stated another way, it was held in a negligence case that if a plaintiff makes a general allegation of damages it will suffice as a basis for proof of those damages which naturally and necessarily result therefrom, for the law implies such damages. But if plaintiffs choose to particularize the injuries arising from a harm, all that they intended to prove must be alleged. Weingartens, Inc. v. Price, 461 S.W.2d 260 (Tex.Civ.App.1970, writ ref. n. r. e.).

We have noted that in our case the jury was instructed to consider the loss in market value of each lot and its improvements with the roads in their present condition as compared to what their value would be if the roads met the county standards, (emphasis added)

Did the defendants have fair notice of the proof to be offered? This measure of damages, based on the market value of the improved lots at the time of trial, was not raised by the pleadings. The plaintiffs did not allege that improvements had been built on their lots, nor did they ask for damages to any improvements. By their only allegations concerning their damages based on the values of their properties, they asked for “the difference in value of the property as represented and ... as sold.” (Count IV, Paragraph XII, above). This pleaded measure of damages was, as they indicated in the heading of Count IV, the one provided by Section 27.01 of the Texas Business & Commerce Code, and it put the defendants on notice that damages were to be assessed based on values existing when they sold the respective tracts. The defendants were entitled to conclude that damages to the improvements were not being sought. The defendants raised this point in their objections to the trial court’s charge.

We do not suggest that the plaintiffs may not recover, under proper pleadings, damages in addition to those provided in Section 27.01 of the Code. Section 27.01 replaced Article 4004, V.T.C.S. Neither Article 4004 nor Section 27.01 superseded the common law rule and neither provides an exclusive remedy for the recovery of damages in an action based on fraud in a real estate transaction. Maddox v. Worsham, 415 S.W.2d 222 (Tex.Civ.App.1967, writ ref. n. r. e.) citing El Paso Development Co. v. Ravel, 339 S.W.2d 360 (Tex.Civ.App.1960, writ ref. n. r. e.). It should be noted that in both those cases the plaintiffs clearly alleged that the fraud was not discovered until after they had taken possession of the properties and had spent money in developing and utilizing them. It was held in both cases that the plaintiffs might recover “such additional damages as are directly traceable to the wrongful act complained of and which result therefrom.”

It is well settled that a prayer for general relief will support any relief raised by the evidence and consistent with the allegations in the petition. We hold that the relief granted was not consistent with the plaintiffs’ allegations.

The appellants’ eleventh point complains that the plaintiffs’ testimony about Sherrod’s promises about the roads violated the parol evidence rule. We overrule this point. The parol evidence rule does not preclude enforcement of prior contemporaneous agreements which are not inconsistent with and do not vary or contradict the express or implied terms or obligations thereof. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958).

Our disposition of these points of error makes it unnecessary for us to decide the appellants’ other points.

The appellees complain by cross-points of the trial court’s having disregarded the jury’s award of exemplary damages.

Having held that the plaintiffs were not entitled to recover actual damages under the pleadings and proof offered, we cannot hold that they could recover exemplary damages.

Reversed and remanded.


text:
    William J. STRAUGHAN, Appellant, v. HOUSTON CITIZENS BANK & TRUST COMPANY, Appellee.
    No. 17325.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 12, 1979.

      Lawrence T. Newman, Houston, for appellant.
    Holland, Abernathy, Tindall, Aycock, Charles L. Black Aycock, Houston, for ap-pellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   PEDEN, Justice.

William J. Straughan, defendant below, appeals from the granting of motions for summary judgment and for severance filed by Houston Citizens Bank & Trust Company in a suit on a promissory note. Strau-ghan had filed a cross-action alleging that the bank had withdrawn funds from his account without authorization and praying for an accounting. He says the trial court erred in granting summary judgment because the original promissory note was not introduced into evidence and because there were genuine issues of fact as to whether he was entitled to any credits. He also complains about the severance of his cross-action. We affirm.

In March of 1976, the bank alleged Strau-ghan executed and delivered to it a $20,000 promissory note due in 35 days; he defaulted on the note and the bank declared the unpaid balance due.

Straughan filed a general denial in response to the bank’s petition, and the bank filed a 'motion for summary judgment supported by affidavit and incorporating by reference its original petition. Straughan filed an amended answer denying the bank’s allegations and alleging that the bank had wrongfully withdrawn money from his account without crediting him with it. In his affidavit, he admitted signing the note and asserted that after depositing the $20,000 consideration for it into his account, the bank withdrew a substantial portion of the $20,000 and transferred it without his authorization to other accounts on which he was a signatory. He said he didn’t know how much of the $20,000 the bank had withdrawn without his authorization or how much remained in the account he had designated to receive the $20,000.

Mr. Straughan filed a supplemental affidavit stating that the accounting in the bank’s original petition and the affidavit in support of its motion for summary judgment failed to give him credit for a $3,000 payment he had made on the note. His third affidavit was allegedly based on personal knowledge, and it repeated his assertions of improper withdrawal of $3,000 plus an unknown amount of the $20,000 and failure to credit.

Mr. Straughan filed a cross-action alleging improper withdrawal of funds by the bank and praying for an accounting. The bank filed a general denial of the cross-action and moved to sever it.

The trial court granted the bank’s motions for severance and for summary judgment after the bank had acknowledged Straughan’s $3,000 payment and the court had allowed him a $3,000 credit. The bank’s judgment was for $17,000 plus $4,298.87 in interest and an attorney fee of $2,097.54, a total of $23,396.41, plus 10% interest on this sum and costs.

In one of his points of error, Mr. Strau-ghan maintains that the bank failed to attach the original note to its pleading, so the court erred in granting summary judgment. The bank’s motion for summary judgment was supported by an affidavit that incorporated by reference an attached and uncerti-fied copy of the note and stated that the bank was owner and holder of the note.

In a summary judgment proceeding, the movant can discharge its burden “without producing and introducing the original note ... by attaching a sworn or certified copy of the note to a proper affidavit or by serving such a copy with the affidavit. Without such proof, an unsworn pleading will not support a summary judgment.” Alexander v. Houston Oil Field Material Co., 386 S.W.2d 540, 548 (Tex.Civ.App.1965, writ ref. n. r. e.) citing Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961). A copy of the note was attached to the pleadings and incorporated by reference in a sworn affidavit on the motion for summary judgment, so it was before the trial court, even though the mov-ant did not swear that the copy was a true and correct one. The non-movant was free to take exception to this procedure, but in the absence of an exception, the evidence was properly placed before the trial court. Pinemont Bank v. DuCroz, 528 S.W.2d 877 (Tex.Civ.App.1975, writ ref. n. r. e.). The deficiency that Mr. Straughan now urges is purely formal, and we may assume that it would have been rectified upon proper exception to the trial court. Consequently, this objection may not be raised for the first time on appeal. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962). Further, “[ijssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Rule 166-A, Texas Rules of Civil Procedure.

Mr. Straughan’s first point of error is that the trial court erroneously granted the bank’s motion for summary judgment, because genuine issues of material fact were present. In determining whether the trial court erred in granting summary judgment, we view the summary judgment evidence in the light most favorable to the party opposing the motion. “It is not the purpose of the summary judgment rule to provide either a trial by deposition or a trial by affidavit, but rather to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact.” Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962).

Mr. Straughan maintains that his affidavit raised genuine issues of material fact. It stated in pertinent part:

I admit signing the promissory note upon which Plaintiff’s suit is based. However, after depositing the $20,000.00 principal of said note into an account at said bank designated by me, the bank withdrew a substantial portion of said amount by transfering same to the account of another corporation maintained at said bank; said transfer being without my knowledge or consent. The bank transferred funds back and forth between the account designated by me and the account of the other corporation and I do not know the actual amount that the banks transferred out of said $20,000.00 The bank’s motion and affidavit state the amount was due at the time that said note was turned over to their attorneys, but does not state the amount of any payments made since they turned the account over to their attorney and does not give me credit for any payments made since then. I have paid $3,000.00 to them since this suit was filed and have not been given credit for same. Failure to give me credit would result in double recovery for Plaintiff.

To create a fact issue, affidavits opposing the motion must set forth facts that would be admissible in evidence. Mere conclusions of an affiant do not have probative value. Hidalgo v. Surety Savings & Loan Association, 487 S.W.2d 702 (Tex.1972).

The plea of wrongful withdrawal of part of the $20,000 deposit without more is simply conclusionary. Mr. Straughan should have gone further and shown the amount in controversy. If this proceeding had been a trial on the merits and the only evidence offered by Mr. Straughan on this affirmative defense was that an undisclosed amount of money was withdrawn from his account, the court would have been required to instruct a verdict against him. See Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App.1963, writ ref. n. r. e.); Harrison v. Leasing Associates, Inc., 454 S.W.2d 808 (Tex.Civ.App.1970, no writ).

The second contention in Mr. Strau-ghan’s affidavit, that Bank failed to credit his account with a $3,000 payment, would have raised a fact issue, but the bank’s attorney admitted receipt of the $3,000 payment, and the trial court reduced the bank’s judgment by that amount. We hold that the granting of summary judgment was proper; the accusation of wrongful withdrawal was merely conclusionary, and the appellant was given credit for the $3,000 payment, so it was not in issue. No genuine issue of material fact remained.

Mr. Straughan maintains in his other point that the trial court erred in severing his cross-action. In that cross-action he against alleged that the bank withdrew a substantial portion of the $20,000 and transferred this undisclosed sum to the account of another corporation with which he was associated. He prayed for an accounting of these funds and requested that the amount of them be credited against the judgment. Only this cross-action was severed; Mr. Straughan’s plea in avoidance of payment in the amount of $3,000 was not severed as Mr. Straughan alleges, but that amount was credited against the judgment.

Rule 97 of the Texas Rules of Civil Procedure provides in part:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

Rule 41, T.R.C.P., provides “[a]ny claim against a party may be severed and proceeded with separately.” This rule grants the trial court broad discretion in the matter of consolidation and severances of causes. McGuire v. Commercial Union Insurance Co. of New York, 431 S.W.2d 347 (Tex.1968); Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959); Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955). We can sustain this point of error only if the trial court abused its discretion in granting the bank’s motion for severance.

For severance to be proper, the following elements are necessary: (1) the controversy must involve more than one cause of action, (2) the severed cause must be one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed causes must not be so intertwined as to involve the same identical facts and issues. In certain instances, there is a fourth requirement that the severed causes of action cannot relate to the same subject matter. Hayes v. Norman, 383 S.W.2d 477 (Tex.Civ.App.1964, writ ref. n. r. e.); Hall, “Severance and Separate Trial in Texas," 36 Tex.L.Rev. 339 (1958).

“ ‘When money ... is deposited in a bank without any special agreement, the law implies that it is to be mingled with the other funds of the bank, the relation of debtor and creditor is created between the bank and the depositor, and the deposit is general.’ ” Hudnall v. Tyler Bank and Trust Co., 458 S.W.2d 183 (Tex.1970).

After the bank deposited the funds to Straughan’s account, any subsequent transfer by the bank to another account would be a separate transaction. More than one cause of action would be involved, the severed cause would be the proper subject of a lawsuit if independently asserted, and the two causes of action are not so intertwined as to involve the same facts and issues. We hold that Straughan’s counterclaim was a permissive rather than a compulsory one and that the trial court did not abuse its discretion in ordering the severance.

Affirmed.