author: BISSETT, Justice.

text:
    STATE of Texas, Appellant, v. Oscar B. McINNIS, Appellee.
    No. 1535.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1979.
    Rehearing Denied July 16, 1979.

      Andrew J. Shuval, Texas Prosecutors Coordinating Council, Austin, for appellant.
    John E. Lewis, Jones & Lewis, McAllen, Jack C. Skaggs, Harlingen, for appellee.
   OPINION

BISSETT, Justice.

This is a suit brought by the State of Texas, acting through the Texas Prosecutors Coordinating Council, to remove the Criminal District Attorney of Hidalgo County from office for alleged misconduct. Following a hearing on a motion to dismiss in the District Court of Hidalgo County, the cause was dismissed with prejudice. The State has appealed.

Oscar B. Mclnnis, the Criminal District Attorney of Hidalgo County, was elected to that office for a term of four years beginning January 1,1975, and ending December 31,1978. On August 1, 1978, he was indicted by a federal grand jury for the Southern District of Texas for perjury and conspiracy to commit murder. Shortly after Mclnnis’s Federal indictment, the Texas Prosecutors Coordinating Council, by decision dated August 21, 1978, found good cause to file a removal action against him for misconduct in office. Pursuant to the Council’s decision, a petition for removal was filed against Mclnnis on September 1, 1978, under authority of Tex.Rev.Civ.Stat.Ann. art. 332d, § 10 (Supp.1978-79). In its petition, the State alleged that Mclnnis was guilty of perjury, aggravated perjury, solicitation of murder and capital murder, conspiracy to commit murder and capital murder, violations of Tex. Penal Code Ann. § 39.01 (1974), and willful conduct which was clearly inconsistent with the proper performance of his official duties.

Following the filing of the State’s petition for removal, the Federal indictment against Mclnnis, insofar as it charged him with conspiracy to commit murder, was dismissed on jurisdictional grounds by the Honorable Robert O’Connor, United States District Judge, on September 15,1978. The indictment relating to perjury was also dismissed. Not long thereafter, Mclnnis was indicted by a state grand jury for solicitation of murder and conspiracy to commit murder. While the State indictment was pending, and after the primary election was over, Mclnnis, who was unopposed at both the primary and general elections, was reelected to the office of Criminal District Attorney for Hidalgo County at the general election on November 7, 1978.

Thereafter, on December 18, 1978, the State filed its first amended petition for removal. In its amended petition the State alleged, in addition to the allegations contained in its original petition, new facts relating to its broad allegations of willful conduct in the originabpetition, as well as a new allegation that Mclnnis had violated Tex. Penal Code Ann. § 39.02 (1974). Subsequent to this amendment, the District Court of Hidalgo County, in the criminal case pending against Mclnnis, ruled on January 5, 1979, that Mclnnis had been entrapped as a matter of law. Accordingly, an order dismissing the cause in state court was signed on January 22, 1979.

On January 9, 1979, Mclnnis filed a motion to dismiss the State’s petition for his removal from the office of Criminal District Attorney for Hidalgo County. The State, on February 28, 1979, filed its second amended petition. This petition, its live pleading, alleged the same acts of misconduct as were alleged in its first amended petition. After an April 23, 1979, hearing in the District Court of Hidalgo County, the Special District Judge entered an order dismissing the cause with prejudice. In its order of dismissal the court “found” that:

“1. ... on September 1, 1978, the date upon which the State of Texas commenced its action by filing the Original petition for Removal, Oscar B. Mclnnis had been elected to and was serving as Criminal District Attorney of Hidalgo County, for a term of office which commenced January 1, 1975, and would extend through December 31, 1978.
2. ... in the General Elections held in Hidalgo County, Texas, in November, 1978, Oscar B. Mclnnis was elected as Criminal District Attorney of Hidalgo County, Texas, for a term of office which would commence January 1, 1979, and would extend through December 31, 1982, and ... in November, 1978, Oscar B. Mclnnis did not have an opponent.
3. ... in January, 1979, Oscar B. Mclnnis took the oath for the office of Criminal District Attorney of Hi-dalgo County, Texas, and signed his bond.
4. . all claimed acts, behavior and conduct set out or alleged in (the several petitions for removal) occurred, according to the said pleadings of the State, prior to the election of Oscar B. Mclnnis to office for the term commencing January 1, 1979.”

The court concluded that all of the acts which the State alleged to have been committed by Mclnnis “prior to August 29,1977 (the effective date of art. 332d), should be disregarded and are not available to the State of Texas as grounds for removal from office.” The court’s dismissal was based primarily upon the application of Tex.Rev. Civ.Stat.Ann. art. 5986 (1962) to a proceeding brought pursuant to Tex.Rev.Civ.Stat. Ann. art. 332d (Supp.1978-1979).

Article 5986 provides that no “officer in this State shall be removed from office for any act he may have committed prior to his election to office.” This statute codifies that which is termed the “prior term” doctrine. See Matter of Bates, 555 S.W.2d 420 (Tex.Sup.1977).

The “prior term” doctrine, at first glance, appears to justify the trial court’s action in this case dismissing the State’s petition for removal because all of the complained-of acts by Mclnnis occurred during his 1975-78 term, and before his reelection in November, 1978. The State attempts to avoid this result, and seeks a reversal of the trial court’s action, by several points of error.

By its first point of error, the State argues that the “prior term” doctrine does not apply in this case because Tex.Rev.Civ. Stat.Ann. art. 332d (Supp.1978-79) repealed or preempted Tex.Rev.Civ.Stat.Ann. arts. 5970 et seq. (1962) insofar as the latter statutes affected prosecutors. Article 332d was an act by the legislature which created the Texas Prosecutors Coordinating Council and, among other things, granted the Council power to file a petition for removal of a prosecuting attorney from office in certain enumerated situations.

The enactment of article 332d did not repeal article 5986 insofar as the latter affects prosecuting attorneys. Article 5986 essentially has been the law in Texas since 1875. Gordon v. State, 43 Tex. 330 (1875). Article 332d has several enumerated purposes, none of which requires the courts to single out prosecuting attorneys for removal from office because of acts committed during a prior term. Nowhere in the statute is there any mention of, or reference to, the “prior term” doctrine. In this context, the State’s reliance upon Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975) and State v. Dancer, 391 S.W.2d 504 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.) is misplaced.

Cuellar involved the question of whether a special statute dealing with the subject of legislative continuances incorporated a procedural requirement found in the general continuance statute. In holding that it did not, the court cited the general rule that where special statutes are complete within themselves, they control, even though other statutes concerning the same subject matter contain requirements not enumerated in the special statute. The distinction, however, between Cuellar and the case at bar is twofold. First, Cuellar dealt with the procedural requirement that a defendant sign his own motion for continuance, while article 5986 deals with a substantive right, namely the bar to removal of public officers for acts committed during a prior term. Second, the rule announced in Cuellar assumes that which is the very matter in issue in the case at bar, namely whether the statute sought to be applied [article 332d] is complete within itself or should be construed in light of prior enacted law dealing with the same subject matter.

This Court’s decision in Dancer involved the question of whether an individual attorney, acting independently of the State Bar, had standing to seek the disbarment of a fellow attorney. The resolution of this issue depended upon whether Tex.Rev.Civ. Stat.Ann. art. 314 (1973), which created such standing, had been repealed or preempted by passage of Tex.Rev.Civ.Stat. Ann. art. 320a — 1 (1973), the State Bar Act. In holding that article 314 was indeed repealed by the State Bar Act, this Court relied upon the rule that a statute intended to prescribe the only rules governing a particular area of law repeals prior statutes which prescribed other rules in the same area of law, even though there is no repug-nancy. Cited in the opinion is language of the Supreme Court to the effect that newly enacted legislation of a comprehensive nature, intended to create a new entire and independent system respecting a particular subject, is universally held to repeal and supersede all previous systems respecting the same subject. In this vein, parts of prior laws that are omitted from the new legislation are to be considered as annulled.

The distinctions between Dancer and the case at bar are manifold. First, in Dancer it was noted that the State Bar Act contained an express repeal clause regarding any prior conflicting legislation. Second, the State Bar Act contained an emergency clause which demonstrated the legislative intent to provide for a new, independent and comprehensive set of laws. Finally though, and most importantly, the decision in Dancer presupposed that different laws should be harmonized if possible and the holding there was based on the unavoidable conclusion that many inconsistencies and contradictions would have existed in the State Bar Act had the old law been incorporated into the new. In the case at bar, however, there is no inconsistency or contradiction caused by reading the “prior term” doctrine into article 332d. In point of fact, the two laws are easily harmoniza-ble. Moreover, as was the case in Cuellar, all of the rules of statutory construction cited in Dancer assumed that which is heatedly in issue here, namely whether article 332d was intended to create a new independent and comprehensive system of law. Hence, ever mindful of the disfavor courts should have for repeal by implication, Standard v. Sadler, 383 S.W.2d 391 (Tex.Sup.1964), we overrule the State’s first point.

By its second point, the State contends that article 332d is a more specific statute than article 5986 and, as such, should control over the latter. This point is totally meritless because article 5986 is actually more specific than article 332d when it comes to removal for acts committed during a prior term, which is the gravamen of this appeal. In point of fact, article 332d is completely silent on the “prior term” rule, hence there is no conceivable reason for it to control over article 5986. The State’s second point is overruled.

As already noted, the dismissal of the removal proceedings against Mclnnis was based, primarily, upon the application of article 5986 to this case. The State, in its third and fourth points of error, claims that the trial court erred in rendering its judgment of dismissal because article 5986 has been limited by the Supreme Court, and does not apply absolutely because of the “forgiveness” doctrine announced in In re Laughlin, 265 S.W.2d 805, 808 (Tex.Sup.1954). We agree.

In Laughlin, which involved an original proceeding in the Supreme Court to remove a district judge pursuant to Tex. Const, art. XY, § 6, the court used the following language:

“. . . Neither may removal be predicated upon acts antedating election, not in themselves disqualifying under the Constitution and laws of this State, when such acts were a matter of public record or otherwise known to the electors and were sanctioned and approved or forgiven by them at the election. This holding is in harmony with the public policy declared by the Legislature with respect to other public officials. Article 5986, R.C. S.1925, Vernon’s Ann.Civ.St. (emphasis supplied)

This language has come to mean that removal may be predicated upon misconduct during a prior term if such misconduct was either unknown to the public, or is in and of itself disqualifying under Texas law. See: Matter of Bates, 555 S.W.2d 420 (Tex.Sup.1977); Matter of Carrillo, 542 S.W.2d 105 (Tex.Sup.1976); In re Brown, 512 S.W.2d 317 (Tex.Sup.1974).

There is language in Brown, Bates and Carrillo which completely disposes of any doubt over the applicability of the “forgiveness” doctrine to article 5986. According to Brown and Carrillo, it was essentially an attempt by the Supreme Court in Laughlin to articulate the “spirit” of article 5986, which prompted the court to use that language which has come to stand for the “forgiveness” doctrine. According to Bates, the phrases “prior term” and “forgiveness” mean essentially the same thing. Thus, it is an unavoidable conclusion that the “forgiveness” doctrine merely states the rationale behind article 5986 and the “prior term” rule.

Even though Laughlin, Brown, Bates and Carrillo were cases involving removal of district judges, we see no reason why the “forgiveness” doctrine announced in Laughlin should not be applied in a removal proceeding involving a district attorney. Having concluded that the “forgiveness” doctrine applies in the case at bar, we must next determine whether the alleged acts set out in the State indictment were “forgivable” by the electorate in Hidalgo County, and, if so, whether they were “forgiven.” We hold that they were not forgivable for three reasons. First, the alleged criminal acts by Mclnnis during his prior term, if committed, were disqualifying under the laws of this State. Laughlin, supra at, 808; Bates, supra, at 428. Second, the alleged acts made the basis of complaint, if committed, would be acts of a willful nature so as to cast public discredit upon the office of district attorney. Carrillo, supra, at 110-11. Third, to hold that a person might commit conspiracy to murder, perjury, or similar serious crimes during one term of office and thereafter be absolutely immunized by the “forgiveness” doctrine from removal during a subsequent term of office is contrary to common sense and the public policy of this State. We believe that the legislature, in the enactment of article 5986, did not intend that the same should apply where the reelected official committed a serious crime during the prior term.

Even if the acts constituting the commission of the crimes with which Mclnnis is charged can be said to be forgivable by the electorate, it must first be established that the electorate knew on November 7, 1978, when he was reelected that such acts had been in fact committed by him. According to the record that is before us, there is no evidence that such acts had in fact been committed by Mclnnis. All that the voting public knew at the time he was reelected were contents of the following public documents: 1) the Federal indictment and its dismissal; 2) the State’s original petition; and 3) the existing State indictment. Those documents contained nothing more than allegations and charges that a crime had been committed. Hence, a question arises as to whether the voters were sufficiently aware of the commission of a crime by Mclnnis for the Laughlin “forgiveness” doctrine to be invoked. Consequently, in the absence of any proof available to the voting public at the general election that Mclnnis had actually committed the acts constituting crimes, as alleged and charged, there was no crime or proven misconduct to forgive.

It was not until January 5, 1979, that there was any evidence available to the public that Mclnnis did commit the acts which formed the basis for the criminal charges brought against him by the State, for, on that date, the District Judge, in the criminal proceeding against Mclnnis, found “as a matter of law that entrapment was established by the Defendant,” and ruled that “all tape recordings and transcriptions thereof of conversations between Daniel Rodriguez and the Defendant” be suppressed. We make the following observations: in a criminal proceeding in Texas, 1) the defense of entrapment necessarily assumes that the act charged was committed by the defendant, Canales v. State, 496 S.W.2d 614 (Tex.Cr.App.1973), and 2) the defense of entrapment is not available to a defendant who denies that he committed the offense charged. Reed v. State, 421 S.W.2d 116 (Tex.Cr.App.1967).

As a result of the aforesaid finding and ruling, the State of Texas filed a motion to dismiss the criminal cause against Mclnnis because, without the presentation of the suppressed evidence at the criminal trial, the jury would be required to return a verdict of not guilty. The cause was thereafter dismissed on January 22, 1979. Such dismissal did not constitute an acquittal. The dismissal does not operate as any specific finding of fact relating to the criminal acts which the indictment alleged were committed by Mclnnis on or about April 19, 1978, unless the criminal record would show that Mclnnis admitted that he committed the offenses as charged in order to invoke the defense of entrapment. Therefore, in the record before us, there has been no finding by a trier of fact, either in a criminal court or in a civil court, that Mclnnis did or did not commit the acts set out in the indictment.

Article 5970 et seq., as well as article 332d, denominate a removal suit as a civil proceeding, which is to be conducted in accordance with the Texas Rules of Civil Procedure. Meyer v. Tunks, 360 S.W.2d 518 (Tex.Sup.1962); Brown, supra. The degree of proof necessary to support a judgment of removal of a public official is by a preponderance of the evidence, rather than beyond a reasonable doubt, as is the case in a criminal prosecution. Carrillo, supra; Meyer, supra. A removal suit may have a punitive effect, and while such suit, in most cases, will charge the official with a violation of a criminal statute, evidence relating to the commission of a crime might not be rendered inadmissible in a removal suit because of entrapment, even though such evidence may be rendered inadmissible in a criminal case. The third and fourth points are sustained.

The State, in its fifth point of error, contends that the trial court erred in holding that all claims of official misconduct occurring prior to August 29, 1977 (the effective date of article 332) should be disregarded. We agree that the trial court erred.

The trial court ruled that acts of alleged misconduct occurring prior to August 29, 1977, could not be considered in defendant’s removal suit because of apparent constitutional objections to retroactive legislation. While we agree that Mclnnis had a vested right to his office, we certainly think that such “right” can be divested in the event a trier of facts finds acts of misconduct on his part. We hold that Mclnnis can be removed from office because of acts of misconduct which occurred prior to the effective date of article 332d. The constitutional inhibition against the making of retroactive laws is not, as such, extended to a procedural or remedial statute. Commercial Insurance Co. of Newark, New Jersey v. Lawe, 480 S.W.2d 781 (Tex.Civ.App.—Dallas 1972, n. r. e.). Article 332d is just such a statute. Thus, upon remand of this case, the trial court is instructed to allow the fact finder to consider otherwise admissible evidence of misconduct occurring prior to August 29, 1977. The fifth point is sustained.

CROSS POINT

Mclnnis, by a cross point, contends that the trial court erred in failing to find that he has been denied procedural due process by being deprived of his office during the pendency of these proceedings. He bases this charge upon three different, yet related, theories.

First, he argues that he was given insufficient notice of the good cause hearing before the Council in August, 1978. We think, however, that the Council’s notice to Mclnnis that it would consider charges in the Federal indictment was sufficient.

Second, he argues that he has been deprived of his office on the basis of an amended petition (the first amended petition as carried over into the second amended petition) containing numerous matters of which he had no notice or hearing. Specifically, he refers us to paragraph III of the first amended petition.

We are not impressed with his second theory and argument for two reasons. First, there is no requirement in article 332d that the Council notify prosecutors it is seeking to remove every time its pleadings are amended to include new factual allegations. Section 10(k) of article 332d provides that trials upon petitions for removal “shall proceed in accordance with the Texas Rules of Civil Procedure . . . .” Rule 63 of the Texas Rules provides that parties “may amend their pleadings . as not to operate as a surprise to the opposing party . . . .” There is no showing that Mclnnis was surprised by such amendment.

Second, his argument stems from his failure to establish any causal connection between the amended pleadings and his disqualification from office. Section 10(c) of article 332d provides that a prosecuting attorney is “disqualified from performing the duties and functions or exercising the privileges of his office when a petition for removal from office has been filed against him . . . .” Thus, defendant’s disqualification from office in the case at bar resulted from the filing of the original petition for removal on September 1,1978. The amendment to the petition on December 18, 1978, accomplished nothing new regarding defendant’s disqualification from office. Furthermore, paragraph III of the first amended petition was primarily in response to special exceptions leveled at the State’s original petition for removal by the defendant. Hence, defendant actually invited the allegations of facts contained in the amended petition.

Third, he attacks the very statutory scheme by which he is presently disqualified from office. According to him, it is unparalleled in this State that an elected public official can be removed de facto from office through disqualification merely by the filing of a civil petition. It has been held in this State, however, that a temporary suspension which is incidental to the trial of a legal and valid removal proceeding is constitutionally valid. Griner v. Thomas, 101 Tex. 36, 104 S.W. 1058 (1907). The cross point is overruled.

The judgment of dismissal is REVERSED and the cause is REMANDED to the trial court for reinstatement and a trial on the merits.

OPINION ON MOTION FOR REHEARING

Mclnnis, in his motion for rehearing, contends that our judgment rendered and filed on May 31, 1979, is in direct conflict with the holding in Reeves v. State ex rel. Mason, 267 S.W.2d 666 (Tex.Sup.1924), and with the holding in State ex rel. Russell v. Kerry Knorpp, 575 S.W.2d 401 (Tex.Civ.App.—Amarillo 1979), in which the Supreme Court refused writ of error, n. r. e., on June 6, 1979. We do not agree. Both cases are distinguishable from the case at bar.

The “Laughlin Doctrine,” which, in effect, modified the holding in Reeves, was announced by the Supreme Court 30 years after Reeves was decided. There is no legal or logical reason to restrict the application of that doctrine solely to the removal of district judges. In Knorpp, the issue of public knowledge and forgiveness was submitted to the jury and was decided adversely to the State. In the instant case, the appeal was from a judgment dismissing the cause with prejudice, and not from a judgment rendered pursuant to a jury verdict.

For the reasons stated in our original opinion, we remain convinced that the alleged acts of solicitation of murder and conspiracy to commit murder, if proved, would disqualify Mclnnis from holding the office of district attorney, even though such acts were committed during the prior term. The State is entitled to a trial on the merits of its lawsuit.

The motion for rehearing is OVERRULED.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    VALLEY INTERNATIONAL PROPERTIES, INC., et al., Appellants, v. C. Fount RAY, Appellee.
    No. 1406.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 13, 1979.
    Rehearing Denied Sept. 14, 1979.

      Joel W. Ellis, Carter & Ellis, Harlingen, for appellants.
    Joel W. Cook, Schlanger, Cook, Cohn & Mills, Houston, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from the granting of a motion for summary judgment. Appellants, Bill Bass and Valley International Properties, Inc., sued Brownsville Savings & Loan Association, Los Campeones, Inc., and appellee herein, C. Fount Ray, seeking: 1) to have a trustee’s sale declared void and to have certain deeds issued at the sale can-celled; and 2) to recover damages for breach of fiduciary duty in the conduct of the trustee’s sale. The suit against Ray was severed from the suit against Brownsville Savings and Los Campeones. See Valley International Properties, Inc. v. Brownsville Savings & Loan Association, 582 S.W.2d 222 (Tex.Civ.App.—Corpus Christi 1979). After severance, Ray, trustee at the disputed sale and a director of Brownsville Savings, filed a motion for summary judgment alleging that there were no issues of material fact because: 1) after considering the affidavits appended to defendant’s motion for summary judgment, none of the allegations in the plaintiffs’ petition justified a claim against the defendant; 2) the plaintiffs had never tendered to Los Cam-peones or Brownsville Savings the amount bid by Los Campeones after the foreclosure sale. The trial court granted Ray’s motion for summary judgment, and the plaintiffs appeal. We affirm.

Much of the background of this suit is explained in our previous decision, Valley International Properties, Inc. v. Los Campeones, Inc., 568 S.W.2d 680 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). Briefly, Brownsville Savings, mortgagee herein, loaned several million dollars, secured by deeds of trust to V.I.P., for the purchase of golf course facilities in Cameron County, Texas. Ray was named trustee in those deeds. V.I.P. defaulted on the obligation and the trustee’s sale complained of below and here followed. At that sale, Pat Stanford, president and sole shareholder of Los Campeones, acquired substantially all of the property of V.I.P. by means of credit extended to Los Campeones by Brownsville Savings. The indebtedness of V.I.P. was then credited for the amount bid by Los Campeones.

After the sale, V.I.P. and Bass brought suit alleging that Ray, as trustee, had conspired to prevent a bidder from attending the trustee’s sale which was held June 7, 1977, by conspiring with Bob Knowles, president of Brownsville Savings, to tell a Mr. Floy Nelson that he could not bid for individual pieces of property at the sale but that he had to bid in one lump sum for all of the properties being offered. The action also alleged that Ray had conspired to exclude other bidders and had breached his fiduciary duty to V.I.P. by advertising that the sale would be for cash only and requiring bidders to pay cash for properties bid upon, while Brownsville Savings extended credit to Los Campeones which was thereby able to purchase and did purchase for credit all the properties sold at the trustee’s sale. Appellants also alleged that Ray, as trustee at the sale, had violated his fiduciary duty to the appellants because he had helped Los Campeones prepare its bid sheet for the sale and because after the sale he received $10,-000 from Los Campeones for services performed in connection with the sale and loan made by Brownsville Savings.

Attached to appellee’s motion for summary judgment were the affidavits of appellee Ray, Bob Knowles and Pat Stanford. In short, Ray’s affidavit stated that he knew of no actions taken to prevent purchasers from attending the sale; that, indeed, every effort was made to afford to all inquiring persons an opportunity to bid at such sale; that no persons protested the holding of the sale or the execution of deeds to the highest bidder for each parcel; and that he did not violate any of the express provisions of the deed of trust or any ethical standards. The affidavit of Bob Knowles (president of Brownsville Savings) states that he never told anyone, including Floy Nelson, that they could not bid on foreclosure or that they could not make bids for individual properties at the sale. He also stated that he never discouraged anyone from bidding at the sale. The affidavit of Pat Stanford (sole shareholder of Los Campeones) stated that he was present at the sale and there were no objections to the sale by anyone present. He further stated that he did discuss the amounts he would bid (in the absence of other bids) with Brownsville Savings, and that he did obtain a maximum loan amount that Brownsville Savings would extend to him on each property.

In response, appellants introduced only the affidavit of Bill Bass, former president of V.I.P. Briefly, Bass’ affidavit stated that he knew that Los Campeones was an agent of Brownsville Savings, that he had heard at a previous trial that Brownsville Savings had issued a check for $10,000 to Ray in connection with Brownsville Savings’ loan to Los Campeones; that, in his opinion, Ray was trying to represent conflicting interests; that Ray, Brownsville Savings and Los Campeones planned and conspired to loan Los Campeones all the money it needed to purchase the properties at the sale for credit; and that Ray helped Brownsville Savings and Los Campeones prepare a “bid sheet” for the sale.

Appellants’ burden on appeal from the granting of a summary judgment is to point out particular fact issues and show that the summary judgment proof was insufficient to establish as a matter of law the absence of any of these issues. Anderson v. Bormann, 489 S.W.2d 945, 947-48 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.).

In this connection, appellants bring one point of error alleging that issues of material fact remain unresolved in this case. Under this general point of error, the arguments set forth four possible unresolved fact issues; namely, whether Bob Knowles in concert with Ray discouraged Floy Nelson from attending the sale; secondly, whether the appellee wrongfully required all bidders at the sale, other than Los Cam-peones, to pay cash; thirdly, whether Los Campeones wrongfully paid Ray a $10,000 fee for his services in connection with the sale and loan; and finally, whether Ray wrongfully assisted Los Campeones in preparing a bid sheet for the sale herein.

Appellants’ first argument is without merit in that the affidavits supporting appellee’s motion for summary judgment unequivocally deny discouraging Floy Nelson from attending the sale. At this juncture, it was the appellants’ burden to present facts in an affidavit challenging this statement. Carr v. Densford, 477 S.W.2d 644, 647 (Tex.Civ.App.—Amarillo 1972, no writ); 4 McDonald, Texas Civil Practice § 17.26.8(iv) (1971). There is no mention made of any conversation with Floy Nelson in Bass’ affidavit, the only affidavit which the appellants presented to the Court in opposition to the motion for summary judgment. Consequently, we must treat the facts stated in the affidavits supporting appellees’ motion for summary judgment in connection with any conversation with Floy Nelson as true. Appellants’ first assertion of a fact issue is overruled.

Secondly, viewing the allegations of Bass’ affidavit as true, and all the other evidence in a light most favorable to the appellants, we find no evidence of any wrongful acts or fraud in connection with allowing Los Campeones to use credit extended by the mortgagee at the sale while all others were asked to pay cash. 4 McDonald, Texas Civil Practice § 17.26.12 (1971). Bass’ affidavit states that Los Cam-peones was the agent of Brownsville Savings, that Ray was a director of Brownsville Savings, that Ray advertised the sale herein as a “cash sale” and sold the property to Los Campeones for “credit,” and that Brownsville Savings extended the credit to Los Campeones so that it could purchase the property. Brownsville Savings then credited V.I.P.’s notes for the amount Los Campeones bid at the sale. In Chase v. First National Bank, 1 Tex.Civ.App. 595, 20 S.W. 1027 (1892, no writ), the mortgagee at a deed of trust sale used its agent to purchase the property being sold and loaned the agent most of the money to consummate said sale. Though the sale was advertised as a “cash sale,” the fact that the mortgagee loaned its agent part of the purchase price and that the agent never gave cash money to the mortgagee for part of the purchase price was not sufficient to render the trustee’s sale invalid. The court upheld the sale and stated:

“. . . Our view is that where a trust deed authorizes a sale for cash, and the trustee, who is also the mortgagee or the agent of the mortgagee, purporting to sell for cash, gives credit, or has an understanding with the bidder that credit will be given him on part of his bid, in order to induce him to make the property bring the full amount of the bid secured, this is not to the injury of the mortgagor, or those claiming under him, and will not avoid the sale . . . ”

See also French v. May, 484 S.W.2d 420, 425 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). In this regard, while the debt herein was slightly greater than 6 million dollars, the bid of Los Campeones amounted to about 5.7 million dollars. Thus, while Los Campeones did not bid the full amount of the debt secured, its bid was only somewhat less.

We follow the holding in the Chase case and find that no cause of action was alleged by merely asserting that the mortgagee, Brownsville Savings, agreed to lend Los Campeones all the funds necessary to purchase the property herein and that the trustee, Ray, did not require the payment of cash rather than credit. Compare McClure v. Casa Claire Apartments, LTD, 560 S.W.2d 457 (Tex.Civ.App.—Beaumont 1977, no writ); Thomason v. Pacific Mut. Life Ins. Co., 74 S.W.2d 162 (Tex.Civ.App.—El Paso 1934, writ ref’d). It would have been an idle gesture for Brownsville Savings to have given Los Campeones the cash, in that Los Campeones would have given the cash to Ray who in turn would have given it back to Brownsville Savings. Appellant’s second contention about raising a fact issue is overruled.

We also find no merit in the appellant’s third and fourth contentions regarding the $10,000 payment to Ray and his participation in preparing the “bid sheet” for Los Campeones. The law is clear that a mortgagee with the power to sell may purchase at his own sale made at a public auction. Southern Trust & Mortgagee Co. v. Daniel, 143 Tex. 321, 184 S.W.2d 465, 467 (1944). Furthermore, the mortgagee itself is competent to act as the trustee to execute the power to sell when duly designated as such in the trustee’s deed. Hart v. McClusky, 118 S.W.2d 1077 (Tex.Civ.App.—Amarillo 1938, writ ref’d); Heiner v. Homeland Real ty Co., 100 S.W.2d 793 (Tex.Civ.App.—Waco 1936, no writ). Ray was designated as the trustee in the trustee’s deed herein. In addition, the trustee under a deed of trust is not precluded from becoming a purchaser at the sale merely because he is the trustee and also an agent of the mortgagee. Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473, 476 (Tex.Sup.1965); Fuqua v. Burrell, 474 S.W.2d 333 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.). In light of the above authorities, we find no wrong in the alleged activity even if true, wherein Los Campeones, agent for Brownsville Savings, paid Ray, a director of Brownsville Savings, $10,000 as its attorney for services provided in connection with the sale and loan. Furthermore in this regard, any of Ray’s participation in helping Los Campeones prepare a bid sheet for the sale without more is not actionable. Compare Tarrant Savings Association v. Lucky Homes, Inc., supra. Appellants’ point of error is overruled. The judgment of the trial court is affirmed.


author: COLEMAN, Chief Justice.

text:
    Evelyn D. JANAK, Guardian of the Estate of Victor J. Janak, N.C.H., Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION as receiver for Sharpstown State Bank, Houston, Texas, Appellee.
    No. 17455.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 21, 1979.

      Tom M. White, Charles L. B. Aycock, Houston, for appellant.
    Baker & Botts, Ray H. Berk, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment rendered in favor of the Federal Deposit Insurance Corporation in a suit filed for the purpose of enforcing an agreement to settle a different lawsuit which the parties later discovered had been dismissed for want of prosecution. . The judgment will be reversed.

In 1973, the Corporation filed suit against the guardian to recover on a promissory note executed by Janak payable to the Sharpstown State Bank. In 1976, the guardian agreed to a settlement of the claim subject to the approval of the Probate Court. The Probate Court approved the settlement agreement on August 23, 1976. The settlement was also approved by the F.D.I.C. on October 6, 1976. An agreed judgment was attached to the application for approval filed in the Probate Court. The attorney for the Corporation was not advised of the fact that the settlement agreement had been approved by the Probate Court and requested a trial setting in March of 1978. At that time the attorneys for both parties first learned that the case had been dismissed for want to prosecution on April 5, 1976. The attorney for the Corporation was advised of a timely manner when the case was set on the dismissal docket. He filed a motion to retain in the wrong court and received no notice of dismissal of the suit.

This suit seeking to enforce the settlement agreement was filed on May 23, 1978. The claim based on the settlement agreement was not filed with the estate until July 20, 1978, the claim asserted was for $101,808.00. The guardian failed to act on the claim and as a matter of law it was overruled 30 days after the date of filing.

The Corporation filed a motion for a summary judgment supported by affidavits. Evelyn Janak filed no answer to the motion for a summary judgment, but she did file an affidavit in opposition. The facts previously recited are established by the summary judgment evidence.

In the affidavit in opposition to the summary judgment the affiant states that the agreement to settle was subject to the approval of the Probate Court and that the terms of the agreement are set out in the application filed with the Probate Court, a copy of which is attached to the affidavit. The affidavit states that “guardian has never refused to honor her commitment to enter into an agreed judgment, but that she has been prevented from doing so by reason of the fact that said cause has been dismissed.”

In the application for approval filed with the Probate Court, Evelyn Janak stated that the F.D.I.C. timely filed suit on a rejected claim in the amount of $128,508.45, plus interest, court costs and attorney fees, and that the cause is “now pending” in the 189th Judicial District Court. The application further recites:

“That the guardian and F.D.I.C. have compromised and settled said claim subject to this Court’s approval, a copy of the Agreed Judgment is attached hereto as Exhibit “A” and is incorporated herein and made a part hereof for all purposes.”

“That the Guardian herein feels that it would be to the best interest of the Estate to compromise and settle this claim in accordance with said Agreed Judgment.”

The attached agreed judgment recites:

“Whereas, said F.D.I.C. and said Guardian wish to reach a full and final settlement of all issues of fact and of law, and all contentions, claims, and causes of action arising out of the facts in contention as hereinabove set forth;

“Now therefore, said F.D.I.C. and said Guardian, in consideration of the mutual covenants and agreements to be performed, as hereinafter set forth, agree as follow:

(1) F.D.I.C. and said Guardian will agree to a judgment in said Cause No. 936,582, ordering that F.D.I.C. to have and recover of and from said Guardian in her representative capacity the total sum of $117,044.32, with interest thereon from date of judgment, said judgment providing that Victor J. Janak will be held personally liable under said judgment only to the extent of any distributions which F.D.I.C. may receive from said Guardianship Estate in said Cause No. 118,010, and further ordering that Guardian does have and recovers nothing of and from F.D.I.C.; and

. “It is, therefore, ordered, adjudged and decreed, that Federal Deposit Insurance Corporation, as Receiver for Sharpstown State Bank, Plaintiff, do have and recover of and from Evelyn D. Janak, Guardian of the Person and Estate of Victor J. Janak, Defendant, in her representative capacity, and only in that capacity, and not individually, the sum of $117,044.32, with interest thereon at the rate of ten (10%) percent per annum from the date hereof until fully paid; provided, however, that Victor J. Janak shall not be individually liable for such sum beyond his interest in the funds and properties now under the jurisdiction of said Guardianship Estate;

It appears from this application that the Probate Court approved the agreement upon a representation that the case was pending. A consideration of the terms' of the application and of the proposed judgment attached thereto reveals that the agreement was to enter a judgment rather than to pay a sum certain. This conclusion is compelled by the provision of the agreement that the judgment would provide that Victor J. Janak will be held personally liable only to the extent of any distribution which the F.D.I.C. may receive from the guardianship estate and from the provision in the proposed judgment that Victor J. Janak shall not be individually liable for such sum beyond his interest in the funds and properties now under the jurisdiction of the guardianship estate. The parties will be presumed to have intended the contract to comply with the pertinent provisions of the Probate Code. Section 327 of the Probate Code (Vernon’s Tex.Civ.Stat. Vol. 17b), provides that unsecured claims against an estate presented to the executor after the expiration of twelve months from the original grant of letters, and allowed and approved or established by judgment, shall be paid by the executor when he has funds of the estate in his hands over and above what is sufficient to pay all debts of-every kind against the estate which were presented within twelve months and properly approved or established by judgment. The proposed agreed judgment further limits the liability of the ward and the estate to the funds on hand at the time of entry of the judgment. There is no summary judgment evidence establishing the amount of money available in the estate for the payment of the judgment. We conclude, therefore, that while there was an agreement to enter a judgment in a sum certain, there was no agreement to settle the claim for such certain, that is, to pay a certain amount in settlement of the claim.

In appeals from summary judgment it is now incumbent on the Appellate Court to carefully consider a provision of Rule 166-A, T.R.C.P., as amended effective January 1, 1978. The Rule now reads: “. the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission on the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. . . .”

The motion for summary judgment filed by the Corporation asserts that the settlement agreement is a valid and binding contract between the parties; that the existence of the agreement was expressly affirmed in the defendant’s original answer; that there is no genuine issue as to any material fact, and that the plaintiff is entitled to judgment in its favor as a matter of law.

While no answer to the motion for summary judgment was filed, the affidavit constitutes an “other response” as that phrase is used in Rule 166-A, supra. In this affidavit it is asserted that the agreement to settle was made subject to the Probate Court approval and that the terms of the settlement were found in the application to that Court for approval. This assertion is supported by the statement in the plaintiff’s petition that the agreement to settle was reduced to writing by counsel on behalf of the estate of Victor J. Janak in an application to enter into an agreed judgment filed in Probate Court No. 2 of Harris County, Texas. The application to settle and the agreed judgment attached to and made part of the application are annexed to the affidavit and made a part thereof by reference. Facts showing that the settlement agreement was made after the dismissal of the case are set out in the affidavit and the affiant states that the guardian has not refused to honor the commitment but that she has been prevented from doing so by reason of the dismissal of the case in which the judgment was to have been entered.

In her brief on appeal, the guardian asserts that the trial court erred in granting the motion for a summary judgment because it was conclusively shown that the guardian’s performance of the agreement was impossible at the time the agreement was made and because at the time the agreement was made F.D.I.C. and the guardian mistakenly assumed that the lawsuit which the agreement was intended to compromise and settle remained in existence. It is also asserted that the summary judgment was erroneously granted because the F.D.I.C. prevented the guardian from performing the agreement upon which its suit is based.

In an opinion filed May 9, 1979, in Cause No. B 2073, entitled J. E. Feller, Ind. DBA Program Security Corporation v. Southwestern Bell Telephone Company, the Court of Civil Appeals for the 14th District of Texas construed Rule 166-A as requiring the non-moving party to make some response to a motion for a summary judgment, and in that response to bring fact issues to the attention of the Trial Court as a predicate to relying on those issues on appeal as grounds for reversal. The court held that the word “answer” as used in the rule meant an answer in response to the motion for summary judgment. The case does not specifically deal with the situation where issues of fact are raised by statements of fact in opposing affidavits, but are not specifically pointed out to the trial court.

In Matthews v. Houtchens, 576 S.W.2d 880, 885 (Tex.Civ.App.-Fort Worth 1979, no writ) the court held that Rule 166-A required a party to a summary judgment to “either plead or prepare and present some instrument to the trial court by which he discloses all issues upon which the court is expected to act or rule; otherwise, save for that upon which the court does act or rule, he may not complain on appeal in reliance on existence or non-existence of any issue not acted upon or ruled upon by the summary judgment.”

We conclude that issues controlling the disposition of the case must be brought to the attention of the court either by the motion for a summary judgment or by the answer or other response to the motion. Issues not thus raised cannot be considered on appeal. The burden remains on the movant to show that there is no genuine issue as to any material fact relevant to the issues set out in his motion and that a like burden is placed on the respondent with reference to affirmative defenses as was the procedure prior to the amendment of the rule. It appears that the word “issue” is used in two different contexts in the rule. First the phrase “there is no genuine issue as to any material fact” means that the material facts are not in dispute. When the rule states that the moving party must show that it is entitled to judgment as a matter of law on the “issues” the word must have been used in the sense of points of law which would be decisive in the case. One of the definitions of the word found in Blacks Law Dictionary is “the disputed point or question to which the parties in an action have narrowed their several allegations, and upon which they are desirous of obtaining the decision of the proper tribunal . . . .”

The facts set out in the affidavit in opposition to the motion raised the question of mutual mistake, but this issue was not specifically called to the attention of the trial court. On the other hand, the facts do not raise the issue of whether the F.D.I.C. prevented the guardian from performing the agreement and this issue was not specifically presented to the trial court in the affidavit. The question whether the guardian’s performance of the agreement was impossible at the time the agreement was made was presented in both the language of the affidavit and the facts therein recited. We conclude that both the issues of impossibility and mutual mistake are raised by the affidavit filed in response to the motion for summary judgment are properly before this court.

In considering impossibility of performance we must distinguish between original impossibility and supervening impossibility. The former is impossibility of performance existing when the contract was entered into, so that the contract was to do something which from the outset was impossible; whereas supervening impossibility is that which develops sometime after the inception of the contract. The Restatement of Contracts also distinguishes between subjective impossibility and objective impossibility. Section 455 of the Restatement provides that impossibility of performing a promise that is not due to the nature of the performance but wholly to the inability of the individual promissor neither prevents the formation of the contract nor discharges a duty created by a contract. Section 456 states that except as stated in Section 455, or where a contrary intention is manifested, a promise imposes no duty if performance of the promise is impossible because of facts existing when the promise is made of which the promissor neither knows nor has reason to know.

Because unknown to either of the contracting parties, the suit filed by the F.D.I.C. against the guardian to collect on the Sharpstown State Bank Note had been dismissed prior to the completion of the agreement, original objective impossibility of performance existed. The guardian had no duty to perform the promise to settle the claim by entering an agreed judgment in the lawsuit which had been dismissed. Faria v. Southwick, 81 Idaho 68, 337 P.2d 374 (1959); see Anno.: Contract-Performance-Impossibility, 84 A.L.R.2d 1831, et seq.

No cases have come to our attention which enforced a contract against the defense of original objective impossibility. See Ellwood v. Nutex Oil Co., 148 S.W.2d 862 (Tex.Civ.App.-El Paso 1941, writ ref.); United Sales Co. v. Curtis Peanut Co., Inc., 302 S.W.2d 763 (Tex.Civ.App.-Dallas 1957, writ ref. n. r. e.); United States v. Texas Construction Co., 224 F.2d 289 (5th Cir.1955).

The guardian’s original answer does not specifically set up the defense that the contract was entered into as a result of a mutual mistake as to a material fact. The guardian’s affidavit states facts showing that the parties executed the contract under a mutual mistake of fact in that each believed the suit on the promissory note was pending trial when in fact it had been dismissed for want of prosecution. The F.D.I.C. could not institute a new suit on the claim. Russell v. Dobbs, 354 S.W.2d 373 (Tex.1962).

In this case, mutual mistake has been raised by the affidavit filed in response to the motion for a summary judgment. When the affidavits disclose facts which render the position of the party moving for a summary judgment untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the opposite party. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1956). An action to rescind is not the only legal means of being relieved of the obligations of a contract made under a mistake of fact; relief may also be obtained by defending against an asserted liability on the contract. Houston Fire & Casualty Ins. Co. v. Pritchard & Abbott, 155 Tex. 120, 283 S.W.2d 728 (1955). The guardian lacked the power to approve and revive a claim barred by § 313 of the Probate Code. Russell v. Dobbs, supra; Burks v. Bennet, 62 Tex. 277 (1884). The fact that the claim was barred by limitation unless the order dismissing the suit on the note could be set aside would have been a material consideration to both parties in settlement negotiations.

The judgment is reversed and the cause is remanded to the trial court.


author: COUNTISS, Justice.

text:
    Robbie DAMRON, Individually and as Independent Executrix of the Estate of Joe S. Damron, Appellant, v. C. R. ANTHONY COMPANY, a corporation, Appellee.
    No. 9007.
    Court of Civil Appeals of Texas, Amarillo.
    July 31, 1979.
    Rehearing Denied Aug. 29, 1979.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Young & Green, Muleshoe, for appellee.
   COUNTISS, Justice.

This landlord-tenant dispute presents questions of this court’s jurisdiction of the tenant’s appeal, the liability of a landlord for the negligence of an independent contractor and the waiver of alleged defects in the tenant’s pleadings and court’s charge. In the trial court, the landlord, Robbie Damron, individually and as independent executrix of the estate of Joe S. Damron, recovered judgment against the tenant, C. R. Anthony Company, in the sum of $6,800 for unpaid rent. The tenant, C. R. Anthony Company, recovered judgment against the landlord in the sum of $15,000 for negligent damage to merchandise in the store building Anthony was leasing from Damron. Each party appears in this court as appellant on the portion of the judgment adverse to that party. We affirm the judgment of the trial court.

For many years C. R. Anthony Company leased a building in Muleshoe, Texas, from Robbie Damron and her late husband, Joe Damron, for use as a retail mercantile store. The parties operated under a written lease agreement that, as pertinent here, provided as follows:

12. Lessors agree to keep in repair and maintain the exterior parts of the building, including . . . roofs, . and any necessary repairs will be made within a reasonable time after notice thereof to Lessors .
******
20. If Lessors fail to perform any of the affirmative covenants to be performed by Lessors pursuant to the terms of this lease, . . . then Lessee may, at Lessee’s option, after notice to Lessors, perform any such affirmative covenant, . in Lessee’s sole discretion as to the necessity therefor, and the full amount of the cost and expense entailed, . shall immediately be owing by Lessors to Lessee, and Lessee shall have the right to deduct the amount thereof, together with interest at the legal rate thereon, from the day of payment, without liability of forfeiture, out of rentals then due or thereafter becoming due thereunder. The option given in this paragraph is for the sole protection of the Lessee and its existence shall not release Lessors from their obligations to perform any of the covenants herein provided to be performed by Lessors, or to deprive Lessee of any legal rights which it may have by reason of any such default by Lessors;

The expiration date of the lease was July 31, 1978, and the rental was $425 per month.

In 1975, the roof of the store had deteriorated to such an extent that a new roof was needed. Mr. Damron and Anthony’s manager discussed the matter and in early April, 1975, Mr. Damron advised Anthony’s manager that he had hired a roofing contractor to put on a new roof. On or about April 10, 1975, the contractor began work and, by the end of the day, had removed a portion of the roof. When the contractor finished work that day he left the roof inadequately covered and that night it rained in Mulesh-oe. By morning a substantial amount of rain had accumulated inside the store. By stipulation, the parties agreed that $15,000 in damage to store merchandise was incurred by Anthony because of the rain.

The Damrons’ roofing contractor continued to work on the roof but the results were not satisfactory and, in July of 1975, the Damrons hired another roofing contractor who replaced the roof a second time. The parties also discussed replacement of the ceiling, which had been damaged by the water, but never came to an agreement on the division of expenses for that task and the ceiling was not replaced. Subsequently, Anthony moved out of the building and paid no rent after March 31, 1977.

Anthony filed this suit soon after vacating the building, charging the Damrons with negligence in the repair, restoration and completion of the roof, which negligence proximately caused the damage to Anthony’s merchandise. The roofing contractors were not sued nor were they mentioned in Anthony’s pleadings. Damron responded by pleading, among other things, that any negligence was that of the first roofing contractor, an independent contractor, for whom Damron was not responsible. Damron also filed a cross-action seeking $6,800 for unpaid rent due between April 1, 1977, and the lease termination date of July 31, 1978. Anthony responded to the cross-action for unpaid rent by alleging that Damron had failed to repair the building and that under the lease the rent was abated and the lease terminated because of this failure.

Trial was before a jury that, in response to special issues, found (1) negligence by Damron’s roofing contractor proximately harmed Anthony’s goods and merchandise; (2) the building was partially destroyed by the storm, the elements or unavoidable casualty; and (3) the building was rendered untenantable by the aforesaid partial destruction. However, the jury responded in the negative to the fourth question which was whether Damron failed and refused to restore the building to a tenantable condition within a reasonable time after the partial destruction. On the basis of the findings, the trial court entered judgment for Damron and against Anthony in the sum of $6,800 for the unpaid rent and for Anthony and against Damron in the sum of $15,000 for the damaged merchandise.

Mrs. Damron attacks the judgment against her by four points of error, contending that (1) the trial court should have submitted a special issue to determine whether the roofing contractor was an independent contractor; (2) as a matter of law Mrs. Damron was not liable for the negligence of the independent contractor; (3) Anthony’s pleadings allege negligence only by Mrs. Damron, not negligence of another that could be imputed to her; and (4) Anthony failed to plead or prove that Mrs. Damron was liable for the negligence of the roofing contractor.

Anthony attacks the judgment against it by a single point of error, and Damron responds to Anthony’s appeal by moving the court to dismiss the appeal based on Anthony’s failure to timely file its appeal bond.

We conclude that Anthony’s appeal was not properly perfected, and we dismiss that appeal and affirm the judgment of the trial court against Anthony.

With regard to Damron’s appeal, we conclude that the roofing contractor was an independent contractor as a matter of law, thus obviating the necessity for a special issue on the question, that Damron is responsible for the negligence of the roofing contractor and that any deficiency in pleading or submission of the case to the jury was waived by Damron. Accordingly, we also affirm the judgment of the trial court against Damron.

We will first consider Anthony’s appeal. The sequence of 1978 dates pertinent to the question of whether Anthony has properly perfected its appeal is as follows:

(1) June 6 — Final judgment is signed by trial court.

(2) June 14 — Damron files motion for new trial.

(3) July 31 (Monday) — Damron’s motion for new trial overruled by operation of law.

(4) August 9 — Damron gives notice of appeal and notice of limitation of appeal to that portion of the judgment awarding Anthony $15,000 against her.

(5) August 18 — Anthony gives notice of appeal and notice of limitation of appeal to that portion of the judgment awarding Damron $6,800 against it and files appeal bond.

(6) August 24 — Damron files appeal bond.

The timeliness of Anthony’s appeal bond is governed by Rule 356(a) Tex.R.Civ.P. which states:

(a) Whenever a bond for costs on appeal is required, the bond shall be filed with the clerk within thirty days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law. If a deposit of cash is made in lieu of bond the same shall be made within the same period.

The filing of the appeal bond within the required time is mandatory and jurisdictional, cannot be waived or enlarged by any court for any reason, may be raised at any time by any interested party or by the court on its own motion, and dismissal is mandatory upon non-compliance by an appellant. Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434, 436 (1959); Abington v. Goss, 408 S.W.2d 317, 318 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.); Meinders v. Shamrock Oil & Gas Corporation, 401 S.W.2d 106, 108 (Tex.Civ.App.—Amarillo 1966, no writ). Also, one party cannot rely on a motion for new trial filed by another party in computing the time limit for posting an appeal bond. Only the party who files the motion is entitled to compute the time limit from the overruling of the motion. Admittedly, Rule 356 is not specific in this regard, but the reference in the rule to a motion for new trial has been construed by the Supreme Court to apply solely to the party filing the motion. Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624, 625 (1935); Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434, 436 (1959). Thus, an appellant cannot rely on the motion for new trial of an adverse party, Neuhoff Bros., Packers v. Acosta, supra; a co-defendant, Olivares v. Service Finance Corporation, 513 S.W.2d 946, 947 (Tex.Civ.App.—San Antonio 1974, no writ); an intervenor, Peurifoy v. Wiebusch, supra; or another party who does not pursue an appeal, Corpus Christi Theatres, Inc. v. Vasquez, 457 S.W.2d 382, 383-384 (Tex.Civ.App.—Corpus Christi 1970, no writ). The rationale of these cases is that each appeal must stand on its own, and an appellant cannot rely on the acts of other parties to extend the time limits within which it must act. Olivares v. Service Finance Corporation, supra.

Anthony occupies the status of an appellant in its attack on the judgment against it for unpaid rent and thus must comply with Rule 356 as construed by the foregoing cases. Since Anthony did not file a motion for new trial and did not file its appeal bond within 30 days after the date of final judgment, dismissal of its appeal is mandatory.

Anthony contends, however, that its compliance with Rule 356 is tempered by Rule 353 Tex.R.Civ.P., which states:

No attempt to limit the scope of an appeal shall be effective as to a party adverse to the appellant unless the sever-able portion of the judgment from which the appeal is taken is designated in a notice served upon such adversé party and filed with the clerk of the trial court within fifteen days after judgment or order overruling motion for new trial is rendered or after motion for new trial is overruled by operation of law.

The substance of Anthony’s argument is that the 30 days for filing its appeal bond is computed from the date when Damron’s motion for new trial is overruled by operation of law because of Damron’s notice of limitation of appeal, which was filed nine days after Damron’s motion for new trial was overruled. In essence, Anthony is saying that, since it did not know the appeal was to be limited until Damron filed her notice of limitation of appeal, it should be permitted to file its appeal bond after being notified of the limitation of the appeal. We recognize the reasonableness of Anthony’s argument, especially in view of the general commentary to Rule 353, which was written prior to the 1976 amendment. However, the fundamental principle that each appeal must stand on its own remains the law of the state. Anthony could not rely on Dam-ron’s motion for new trial, which complained only of the portion of the judgment adverse to Damron, to suspend Anthony’s time for filing an appeal bond if Anthony wanted to appeal from the clearly severable portion of the judgment adverse to it.

Confronted with an almost identical fact situation, the court in Harms Marine Service, Inc. v. Swiere, 411 S.W.2d 602, 604 (Tex.Civ.App.—Beaumont 1966, writ ref’d n. r. e.), cert. denied, 389 U.S. 899, 88 S.Ct. 227, 19 L.Ed.2d 223 stated:

Under Rules 356(a), 306(c) and 353(c), T.R.C.P., plaintiff continued to have the burden of perfecting his own appeal. The pendency of defendant’s motion for new trial did not have the effect of extending plaintiff’s time for filing his appeal bond. Neither did the amendments of the above rules have that effect.

See a also Johnson v. Downing And Wooten Construction Co., 480 S.W.2d 254, 256-257 (Tex.Civ.App.—Houston [14th Dist.], 1972, no writ); Great Eastern Life Ins. Co. v. Jones, 526 S.W.2d 268, 270 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.).

In summary, it is our holding that the filing of a motion for new trial and the subsequent limitation of appeal under Rule 353 by party number one does not in any manner excuse party number two from filing an appeal bond within the time specified in Rule 356(a), computed without regard to the actions of party number one, if party number two wants to appeal a severa-ble part of the judgment. The appeal of C. R. Anthony Company is dismissed.

We next consider Damron’s appeal. Although Damron assigns as error the failure of the trial court to submit an issue inquiring whether the roofing contractor was an independent contractor, she concedes in her brief that the independent contractor status was established as a matter of law and that no special issue was necessary. We have examined the evidence and we agree.

The ultimate test of whether a worker is an independent contractor, as stated in Newspapers, Inc. v. Love, 380 S.W.2d 582, 584-592 (Tex.1964), is whether the right to control the details of the work was vested in the worker or in the employer. Absent the right of control, the worker is an independent contractor.

In this case, the evidence is undisputed that Mr. Damron had no control over the details of the work and sought none; when he employed the contractor, he was interested only in the end result. The contractor took the job on a bid basis, provided his own tools and employees and received no supervision or guidance from Mr. Dam-ron. Thus, the roofing contractor was, as a matter of law, an independent contractor. The first point of error is overruled.

An analysis of the landlord’s liability for the negligence of an independent contractor begins with the general principle that an employer is insulated from liability for the negligence of an independent contractor by the existence of the contract. This rule, however, like many general principles is so riddled with exceptions that it is “primarily important as a preamble to the catalog of its exceptions.” Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 201 Minn. 500, 277 N.W. 226, 228 (1937). The Restatement of Torts, Second states two exceptions applicable to the general problem area in this case:

§ 419. Repairs Which Lessor is Under a Duty to His Lessee to Make.
A lessor of land who employs an independent contractor to perform a duty which the lessor owes to his lessee to maintain the leased land in reasonably safe condition, is subject to liability to the lessee, and to third persons upon the land with the consent of the lessee, for physical harm caused by the contractor’s failure to exercise reasonable care to make the land reasonably safe.
§ 420. Repairs Gratuitously Undertaken by Lessor.
A lessor of land who employs an independent contractor to make repairs which the lessor is under no duty to make, is subject to the same liability to the lessee, and to others upon the land with the consent of the lessee, for physical harm caused by the contractor’s negligence in making or purporting to make the repairs as though the contractor’s conduct were that of the lessor.

Restatement (Second) of Torts §§ 419, 420 (1965).

Although the foregoing sections speak of “physical harm” there is no logical reason to distinguish between harm to the lessee’s person and property, and we make no such distinction in this case. The quoted Restatement sections also illustrate that the duty can be imposed on the landlord either by contract or by voluntary assumption of the duty.

Texas has long followed the foregoing principles, as exemplified by Dalkowitz Bros. v. Schreiner, 110 S.W. 564, 565 (Tex.Civ.App.1908, no writ). In that case the landlord, although not under a duty to repair the leasehold, undertook to install a new roof at the request of the tenant. The work was negligently done by the independent contractor employed by the landlord, and leaks in the roof damaged the tenant’s goods. In affirming judgment for the tenant for the value of the goods, the court held that “the rule of independent contractor does not avail to relieve appellee [landlord] of responsibility. The contractor was her representative in and about the work, so far as appellants [tenants] are concerned.” See also Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089, 1090 (1908); Central City Loan & Investment Co. v. Vincent, 117 S.W. 912 (Tex.Civ.App.1909, no writ); Midkiff v. Benson, 225 S.W. 186, 187-188 (Tex.Civ.App.—El Paso 1920, no writ).

The basis of liability in the foregoing cases is the assumption of a duty by the landlord to perform a particular act for the tenant. Whether the duty is assumed gratuitously or by contract, the landlord has primary liability for discharge of the duty and cannot insulate himself from the negligent discharge of the duty, by his independent contractor.

There is nothing novel about the concept of a non-delegable duty which holds one accountable to others for the negligence of an independent contractor. For example, in Bond v. Otis Elevator Company, 388 S.W.2d 681, 685-686 (Tex.1965), the owner of a building was liable to an elevator passenger for injuries inflicted because of the negligent repair of the building’s elevator by an independent contractor, even without any negligence by the building’s owner. Liability existed because the owner had a non-delegable duty to maintain the elevator in reasonably safe condition for all who would be expected to use it. In El Paso Electric Co. v. Buck, 143 S.W.2d 438, 441 (Tex.Civ.App.—El Paso 1940, writ dism’d jdmt. cor.), the company was liable to a customer for injuries inflicted because of the negligent installation of electrical equipment by a co-defendant, although there was no finding of negligence against the company. The court indicated that it was immaterial whether the co-defendant was an independent contractor. The work created a dangerous condition and the company, having contracted with the customer to perform the work, had' a non-delegable duty to protect the customer from or warn the customer of the danger. In Dupree v. Piggly Wiggly Shop Rite Foods, Inc., 542 S.W.2d 882, 887 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.), the independent contractor status of its security guards did not protect a grocery store from liability for a false arrest by one of the guards. Again, the store owner had a non-delegable duty to its customers, in that instance to protect them from the intentional tort of false arrest.

The lesson to be learned from the foregoing authorities is that there are certain non-delegable duties that exist, whether created by contract, voluntary assumption or public policy, and when a person assumes one of those duties that person remains accountable for its performance regardless of the means used to effectuate the performance.

In. the case now before the court, Damron contracted to “keep in repair and maintain the exterior parts of the building, including, . . . roofs . . . .” She voluntarily undertook the performance of that duty by hiring an independent contractor to replace the leaky roof. Having contractually (and voluntarily) assumed the duty to repair the roof, she is responsible for damages incurred by Anthony because of the negligent performance of that duty regardless of the means employed.

Mrs. Damron asserts that under the authority of McCrory Corporation v. Nacol, 428 S.W.2d 414 (Tex.Civ.App.—Beaumont 1968, writ ref’d n. r. e.) and Hamblen v. Mohr, 171 S.W.2d 168 (Tex.Civ.App.—Galveston 1943, writ ref’d w. o. m.), the duty to repair rested on the tenant, not the landlord, because of the lease language in paragraph 20, supra, permitting the tenant to perform the repairs and deduct the cost from the rent if the landlord failed to perform as required by the lease. The principle involved in the cited cases would perhaps be applicable if the injury had resulted from the failure of the landlord to take any affirmative action to repair the roof. Where, however, the landlord does in fact initiate performance of the duty imposed by the lease, the principle is not applicable. The landlord has affirmatively set into motion the chain of events which led to the injury, and it is not a defense to say that the tenant had the right to repair the roof if the landlord did not do so and deduct the cost from the rent. The second point of error is overruled.

The final question confronting the court is whether Damron has preserved error in alleged pleading defects by Anthony. Anthony’s pleadings allege that Damron’s negligent repair of the roof was the proximate cause of its damage. There are no pleadings by Anthony alleging negligence by the roofing contractor or Damron’s responsibility for that negligence. At the trial, Anthony introduced the lease agreement and testimony showing the manner and method of Damron’s employment of the roofing contractor and the actions taken by the contractor that caused the damage to Anthony. The trial court submitted to the jury a special issue inquiring whether negligence by the roofing contractor proximately caused Anthony’s damage. The jury’s affirmative answer to that inquiry is the basis of the judgment against Damron.

The record does not reflect any objection by Damron, founded on a pleading deficiency, to the evidence concerning the employment of, or negligent acts by, the roofing contractor. Also, there is no objection that the operative special issue is not supported by the pleadings. Not until Damron filed her motion for new trial did she raise the failure of Anthony’s pleadings to allege the theory of recovery that was submitted to the jury. Assuming that the pleadings do not sufficiently allege the theory upon which this case was tried, we have carefully examined the record and are unable to find any objection by Damron which preserves that error. Therefore, on the record before us, we must conclude that Anthony’s theory of the case was tried by implied consent. Rules 67 and 274, Tex.R. Civ.P.

Rule 67 states that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Rule 274 requires a party objecting to the charge to point out distinctly the matter and grounds of the objection and provides that any “defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.” Tex.R.Civ.P. 274. Judicial interpretation and analysis of these rules confirm that they mean exactly what they state. Absent either timely objection to the evidence or to the special issue prior to submission the pleading defect is waived, and it is presumed that the issue is tried by implied consent. Willeford v. Walker, 499 S.W.2d 190, 193 (Tex.Civ.App.—Corpus Christi 1973, no writ); Burgamy v. Lawrence, 480 S.W.2d 38, 40 (Tex.Civ.App.—San Antonio 1972, no writ); Coleman v. Banks, 349 S.W.2d 737, 740 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.); 2 R. McDonald, Texas Civil Practice § 5.18 (rev. 1971).

The third and fourth points of error are overruled.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Among other matters, Damron moves in her Motion for Rehearing that costs of court be taxed one-half to each party, since both Damron and C. R. Anthony sought a review of the trial court’s judgment. We agree with Damron’s contention and, thus, order that the costs of appeal shall be assessed one-half to Damron and one-half to C. R. Anthony. Rule 435, Tex. R.Civ.P.

The remaining portion of appellant’s Motion for Rehearing is overruled.

      . Mr. Damron died on July 30, 1977. Mrs. Damron remained as an individual defendant and also assumed representation of Mr. Dam-ron’s estate. References hereafter to “Dam-ron” and “Mrs. Damron” refer to Mrs. Damron in her dual capacity.

      . The general commentary to Rule 353 in Vernon’s Annotated Rules is misleading because the last paragraph seems to say that either party has 30 days to file the appeal bond after “rendition of judgment or order overruling motion for new trial.” However, as Peurifoy v. Wiebusch, supra, and Neuhoff Bros., Packers v. Acosta, supra, make clear, only the party who files the motion for new trial can delay filing an appeal bond until after the motion is overruled. Another party who may want to complain about some part of the judgment but does not file a motion for new trial must either file an appeal bond within time limits computed from the date of the judgment or take the chance that the party filing the motion for new trial will not limit the appeal and that the complaint can be presented by cross-points. See Jackson v. Ewton, 411 S.W.2d 715, 717-718 (Tex.1967) for a discussion of the function of cross-points and counter-points. See also Rule 324, Tex.R. Civ.P.

      . Other jurisdictions are in accord with this view. See, e. g., Nahm & Friedman v. Register Newspaper Co., 120 Ky. 485, 87 S.W. 296 (1905); Komar v. Wynn, 125 Misc. 176, 210 N.Y.S. 422 (1925); Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553 (1933).

      . Damron’s special exceptions can be construed to raise the issue, but the record does not reflect the trial court’s action thereon so the exceptions are waived. Tex.R,Civ.P. 90. There is also authority that objections to evidence not founded on written pleadings must be made even if the exceptions are overruled. Republic Bankers Life Insurance Company v. McCool, 441 S.W.2d 314, 317 (Tex.Civ.App.—Tyler 1969, no writ).


author: PER CURIAM.

text:
    CITY OF PORT ARTHUR et al., Appellants, v. Walter MOSELY et al., Appellees.
    No. 8396.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 6, 1979.

      Robert Q. Keith, Beaumont, George B. Wikoff, Port Arthur, for appellants.
    Kermit C. Morrison, Jr., Port Arthur, for appellees.
   PER CURIAM.

Defendants below have appealed from an order granting a “Writ of Temporary Injunction Both Prohibitory and Mandatory” restraining the assessment and collection of ad valorem taxes by the City of Port Arthur. Suit was brought by two taxpayers on behalf of themselves and as representatives of all other taxpayers similarly situated. Plaintiffs proceeded under Tex.R. Civ.P. 42. We do not address the class action question in this interlocutory appeal.

After a show cause hearing, the trial court granted plaintiffs all of the relief they sought. Defendants appealed, moved for an early submission, and we took the case under submission upon a complete record thirteen days after the entry of the order in the trial court. Tex.R.Civ.P. 385(d).

City of Port Arthur is a Home Rule City with many thousands of parcels of property upon its tax rolls, the total assessment amounting to almost a billion dollars. The greater portion of the property is located in the area of City prior to the time two smaller towns were annexed. Lakeview and Pear Ridge were annexed in 1977, and the controversy centers on the alleged disparity of treatment of property in the original city and that in the newly annexed areas of Lakeview and Pear Ridge.

Plaintiff Mosely did not render his property for taxation in the year 1979; but, when he received notification that the assessed value of his property had been increased from $28,300 as used in 1978 to $48,800 for 1979, he appeared before the Board of Equalization and complained. He received no relief. He does not complain that his property was assessed at a figure in excess of market value.

Plaintiff Lewis testified that his valuation was increased from $9,480 to $13,200. The record is silent as to whether he rendered his property for taxation, whether he appeared before the Board of Equalization, and as to the value of his property.

Except as indicated above, neither plaintiff gave any testimony or offered any evidence as to the market value of his own or any other property in the city. The only effort to prove valuations of property in Lakeview or Pear Ridge consisted of the proffer of what plaintiff Mosely termed to be appraisal cards he said that he obtained from the tax office. Plaintiffs made no attempt to prove the authenticity or accuracy of such “valuations”. The court sustained defendants’ objection to such cards and they were not admitted in evidence to show actual value. Plaintiffs now complain of the exclusion of this “evidence” in their crosspoint. Even if the trial court had admitted the cards into evidence for all purposes, such would not have supported a finding of fact or a judgment. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628, 631 (1941).

Instead of proving the value of their own property and offering evidence of the value of other properties in the district to show an invidious discrimination, plaintiffs were granted relief upon allegations and proof:

(1)that when two small towns on the perimeter of City (Lakeview and Pear Ridge) had been annexed, officials of City promised the residents of such towns that their property valuations would not be increased for a period of five years if the annexation carried at the polls; and (2) City had entered into an agreement with Port Arthur Independent School District to reappraise the property within the city limits and that' the District had done so.

Further proof was made to the effect that property in Lakeview and Pear Ridge (as well as a few other areas of City) had not been increased for the year 1979, while valuations inside the “old” city limits (i. e., City as it existed before the annexation of Lakeview and Pear Ridge) had been increased.

At the conclusion of the hearing, the trial court entered a lengthy order granting plaintiffs the temporary injunction which they had sought, and also granted a mandatory injunction which plaintiffs sought only upon the final hearing on the merits. Defendants were restrained from completing the tax roll without including all of the property in the city upon the same basis— namely, the reevaluation figures supplied by the school district.

Further, the defendants were “affirmatively and mandatorily ORDERED, RESTRAINED and ENJOINED to include” in the tax rolls all property in the former towns of Lakeview and Pear Ridge at “their reasonable fair market value.” Upon oral submission, plaintiffs’ counsel, with commendable candor, declined to argue in support of the mandatory provision found in the order granting the temporary injunction.

At the outset of our discussion we give full recognition and application of the rule governing appellate review of orders granting temporary injunctions as articulated in the recent cases of Davis v. Huey, 571 S.W.2d 859 (Tex.1978), and Brooks v. Expo Chemical Co., Inc., 576 S.W.2d 369, 370 (Tex.1979):

“[S]uch review is strictly limited to a determination of whether there has been a clear abuse of discretion by the trial court in determining whether the applicant is entitled to a preservation of the status quo pending trial on the merits..."

Having reviewed the record under the standards set out for our guidance, we find a clear abuse of discretion by the trial court and now reverse the judgment granting the temporary injunction (both prohibitory and mandatory) and dissolve said injunction for the reasons now to be stated.

Our basic disagreement with the trial court is expressed in this statement taken from Johnson City Ind. School Dist. v. Crider, 535 S.W.2d 725, 727 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.):

“Although the broad findings made by the court could well support its order if based on sufficient evidence, we can find no evidence in this record to sustain the injunction . . . .”

We readily agree that a taxpayer may obtain injunctive relief to prevent the imposition of an illegal levy upon his property when it is based upon a fundamentally wrong principle or method. Indeed, we have recognized the rule upon several occasions. See, e. g., Montgomery County v. Humble Oil & Refining Co., 245 S.W.2d 326 (Tex.Civ.App.—Beaumont 1951, writ ref’d n. r. e.); Atlantic Richfield Co. v. Warren Ind. School Dist., 453 S.W.2d 190 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.); Owens-Illinois, Inc. v. Little Cypress-Mauriceville Ind. School Dist., 481 S.W.2d 477 (Tex.Civ.App.—Beaumont 1972, no writ). See also Gibson v. Kountze Ind. School Dist., 552 S.W.2d 588 (Tex.Civ.App.—Beaumont 1977, no writ).

We have mentioned earlier that plaintiffs studiously avoided offering proof of the market value of their own parcels of land. Instead, all that was shown was that some values had been increased while others remained unchanged. Justice Stephenson, speaking for this Court in Gibson v. Kountze Ind. School Dist., supra, compared that case with and quoted from Lancaster Ind. School Dist. v. Pinson, 510 S.W.2d 380 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.):

‘If the plan is attacked on the ground of inequality of assessment, however, proof of actual market value of plaintiff’s property is necessary, since without such proof no discrimination is established.’ 510 S.W.2d 383 (Emphasis ours)” (552 S.W.2d at 592)

The authorities are unanimous in holding that a taxpayer may not prevail in an action such as this in the absence of proof of the market value of his own property and a showing of discrimination resulting in substantial injury as compared to other taxpayers in the unit. See, e. g., City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 417 (1954); Anderson County Taxpayers’ League v. City of Palestine, 576 S.W.2d 679, 683 (Tex.Civ.App.—Tyler 1979, no writ); Johnson City Ind. School Dist. v. Crider, supra (535 S.W.2d at 728-729); Bynum v. Alto Ind. School Dist., 521 S.W.2d 656, 660 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.); Sierra Blanca Ind. School Dist. v. Sierra Blanca Corp., 514 S.W.2d 782, 785 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.); Atlantic Richfield Co. v. Warren Ind. School Dist., supra (453 S.W.2d at 196-197).

The foregoing list of authorities could be expanded but it is sufficient to state at this point, unequivocally, that in the absence of proof of the market value of the plaintiffs’ property it is an abuse of discretion on the part of the trial court to grant an injunction, even upon proof of the adoption of an illegal plan of taxation. In the absence of such proof, the plaintiffs have failed to establish the sine qua non of their case — proof of a discriminatory assessment of their own property.

The taxpayer-plaintiffs did not have the burden of showing the value of each piece of property in the city in order to prevail; they could have made out a prima facie case for the injunction by showing that a fair sample of the property in one area was assessed without regard to market value while theirs was assessed at more than market value which resulted in their substantial injury. Atlantic Richfield Co. v. Warren Ind. School Dist., supra (453 S.W.2d at 198).

For aught that appears in this record, the property of plaintiffs may have been undervalued while the property elsewhere (in Lakeview and Pear Ridge) was overvalued. Even if it were to be shown that the plan adopted by City was illegal (a matter which we do not determine upon this interlocutory appeal), plaintiffs would have discharged but half their burden of establishing their right to the temporary injunction. They had the additional burden of offering evidence tending to prove that they have a probable right thereto on final hearing and will suffer probable injury in the interim. Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683, 686 (Tex.1968); Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968).

Plaintiffs did not allege nor did they attempt to make proof of discrimination or substantial injury; indeed, in the absence of pleading and proof of their own property values as contrasted with other valuations, plaintiffs did not establish any right to the temporary injunction. See and compare Anderson County Taxpayers’ League v. City of Palestine, supra.

The parties did not join issue on the validity of the “agreement” between Port Arthur officials and the residents of Lakeview and Pear Ridge as to the maintenance of the assessed values in such areas. Plaintiffs assume and argue, even in their post-submission brief filed in this Court on August 1, 1979, that such “agreement” was binding and effectively “froze” valuations in the former towns. City, on the other hand, argued that its cyclical method of reappraisement was the reason for the reappraisal of plaintiffs' properties in the “old town” and its failure to reappraise in the newly annexed areas for the tax year 1979.

In this interlocutory appeal, we do not pass upon the validity of either question posed — the so-called “agreement” or the “cyclical” method of appraisement. A hearing upon an application for a temporary injunction is a poor substitute for a trial upon the merits of such an action as is represented by this case. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421-422 (1959); Briscoe Ranches, Inc. v. Eagle Pass Ind. School Dist., 439 S.W.2d 118, 120 (Tex.Civ.App.—San Antonio 1969, writ ref’d n. r. e.). A determination of such questions must await a full development of the facts upon a trial on the merits.

Plaintiffs, by their timely action in seeking relief before completion of the tax rolls, have avoided the more onerous burden which would have been imposed had they sought to urge such matters in defense of suits for delinquent taxes. Owens-Illinois, Inc. Case, supra (481 S.W.2d at 482), and authorities therein cited.

For the reasons herein set forth, the judgment of the trial court granting the temporary injunction is reversed and said temporary injunction, in its entirety, is dissolved. All costs are assessed against plaintiffs and the sureties upon their injunction bond.

Reversed and temporary injunction dissolved.

CLAYTON, J., not participating.

      . We find no merit to plaintiffs’ present complaint as stated in their crosspoint and it is overruled. See Aycock v. Travis County, 255 S.W.2d 910, 912 (Tex.Civ.App.—Austin 1953, writ refd); Superior Oil Co. v. Sinton Ind. School Dist., 431 S.W.2d 383, 388 (Tex.Civ.App.—Corpus Christi 1968, no writ).

      . A separate paragraph of the order reads: “It is further ORDERED by the Court that each and every one of the above-named Defendants follow and comply with, as applicable, Articles 1036, 1044, 1049, 1050, and 1055, as well as the language, spirit, and philosophy of Articles 7211 and 7212.” See and compare Tex.R.Civ.P. 683; Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967); Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871, 875 (1948).

      . This Court’s opinion in Montgomery County v. Humble, supra, was approved specifically in Cannon. 153 Tex. 566, 271 S.W.2d at 417.

      . In Sierra Blanca, supra, the trial court concluded that the taxing agency had adopted an arbitrary and discriminatory plan by assessing all ranch lands north of IH 10 at $30 an acre, and all such lands south of IH 10 at $20 per acre. The El Paso Court approved such finding. In this context, Justice Ward, speaking for the court, wrote: “The ranch owning taxpayers must show only substantial injury by reason of the adoption of the illegal plan, and to do this they must establish the value of their own property.” (514 S.W.2d at 785, emphasis supplied)