author: WARREN, Justice.

text:
    SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant, v. Violet Jo EVANS, Individually and Temporary Administratrix of the Estate of Paul David Evans, Deceased, Appellee.
    No. 17427.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Affirmed Oct. 25, 1979.
    Rehearing Denied Nov. 29, 1979.

      Sewell, Junell & Riggs, Gordon A. Holloway, Houston, for appellant.
    Schmidt & Matthews, W. Douglas Matthews, Houston, for appellee.
   WARREN, Justice.

Southern Pacific Transportation Company appeals from orders of the trial court striking its pleadings, refusing to allow it to present any ground of defense, and granting a default judgment against it as to liability.

The issue in the casé is whether the entry and enforcement of these orders constituted an abuse of discretion by the trial court.

Paul David Evans, an employee of appellant, was killed on April 18, 1976, when a motorcar in which he was riding derailed. There were no witnesses to this incident. In May of 1977, suit was filed, alleging, among other things, that the motorcar was defective. •

On June 21, 1977 interrogatories were served on appellant, pertaining to the accident and the motorcar. Appellant neither answered the interrogatories within the time required nor objected to them. On July 18, appellee filed a motion to compel answers to these interrogatories. On August 22, a hearing was held and although notified, appellant did not appear. On September 2; the court signed an order requiring appellant to answer the interrogatories within thirty days. The order further provided that the pleading of appellant would be stricken and that it would not be allowed to present any ground of defense if it failed to answer the interrogatories within thirty days. Appellant did not answer the interrogatories, file a motion to extend time, or file any objection to them.

Pursuant to notice, appellee, on.November 18, 1977, attempted to take the deposition of Norris Hastings, appellant’s claim agent. On the advice of counsel, Mr. Hastings refused to answer many questions pertaining to the motorcar. On March 31, 1978, appellant answered certain of the interrogatories propounded by appellee on June 21, 1977. One of the answers stated that the motorcar had been dismantled and salvaged for spare parts.

On July 31, 1978, appellant’s motion to set aside the order striking its pleadings and appellee’s motion for interlocutory default judgment were set for hearing and were taken under advisement. On November 29, the court overruled appellant’s motion to set aside and ordered the pleadings stricken. On December 4, the court granted appellee’s motion for interlocutory default judgment. On December 11, after a hearing, the court entered an order denying appellant’s motion to reconsider the granting of a default judgment. Trial as to damages only was to a jury, which resulted in a total award of $233,000.00 against appellant.

Appellant’s points of error one and two allege that the trial court erred and abused its discretion in entering the order of September 2, 1977, and in refusing to set it aside.

Appellant was ordered to answer the interrogatories within 30 days from September 2nd, 1977. The last paragraph of the order reads:

“Ordered by the court that the pleadings of Defendant, Southern Pacific Transportation Company, shall be struck and Defendant, shall not be permitted to present any grounds of defense if Defendant fails to file its answers to these interrogatories by such date.” (thirty days from September 2nd).

The order of September 2, 1977, did not impose sanctions, but placed the appellant on notice of the sanction to be imposed.

An order that is so uncertain as to require fact findings of a court or jury to determine the relief it grants is void. Hilatex, Inc. v. State, 401 S.W.2d 269 (Tex.Civ.App. — Houston 1966, writ ref. n. r. e.); 39 Tex.Jur.2d Motions and Orders § 12 (1962). Before any sanctions could be imposed, a finding by the court would have to be made that the interrogatories were not answered within the 30 day period. In addition, depending on what transpired during the following 30 day period, the court would have to determine whether the interrogatories were answered, or whether good cause existed for failing to answer.

Since no order was entered on September 2, 1977, striking appellant’s pleadings or refusing it the right to present any ground of defense, these points are overruled.

Appellant’s point of error three asserts that the court erred and abused its discretion in entering an order “striking appellant’s pleadings and prohibiting it from presenting any grounds of defense.” On November 29, 1978, an order was entered which stated in part, “that this court’s order entered on September 2, 1977, is not set aside and that Defendant’s pleadings in this cause are struck and Defendant shall not be permitted to present any grounds of defense.” This order was legally sufficient to impose the sanctions promised in the September 2, 1977, order.

Throughout the proceedings, appellant never alleged that the interrogatories were not answered because of mistake, lack of information, lack of notice, or even neglect. The only inference which can be drawn is that its failure to answer was willful.

Rule 168, T.R.C.P. states:

“If a party, except for good cause shown, fails to serve answers to interrogatories, the court in which the action is pending may, on motion and notice, make such orders as are just, including those authorized by paragraph (c) of Rule 215a.

Rule 215a(c), T.R.C.P. provides that the court may

“ . . ' . strike out all or any part of the pleading of that party (failing to answer), or dismiss the action or proceeding or any part thereof, or direct that such party shall not be permitted to present his grounds for relief or his defense, or enter a judgment by default against that party, or make such other order with respect thereto as may be just.”

The only limitation imposed on the court in these two rules is that the order must be just. Just is defined as “Conforming to or consonant with, what is legal or lawful, legally right; Reasonable. Right; in accordance with law and justice.” Black’s Law Dictionary, Fourth Edition. The statute makes such sanctions of striking pleadings and not allowing a party to present a ground of defense legal, therefore, the only concern is whether these sanctions were reasonable. Appellant contends that since discovery was eventually made and since it is a settled principal in Texas that the purpose of sanctions under Rule 215a(c) is to secure compliance with the discovery rules and not to punish, that there was no valid reason for invoking sanctions. We disagree.

Appellee’s interrogatories were not answered until almost six months (March 31, 1978) after the time had expired under the order of September 2, 1977. The answers revealed that the motorcar, on which the deceased was riding at the time of his death, had been dismantled.

Appellee contends that the failure of appellant to timely answer the interrogatories and the dismantling of the motor car prevented her from proving, and deprived her of the right to attempt to prove, that the motorcar was defective. Appellant contends that the motorcar was scrapped on June 18, 1976, which was before notice was given that appellee was making a claim for the death of her husband. Neither the determination of whether the motorcar was scrapped before the interrogatories were propounded, nor the fact that the interrogatories were eventually answered is determinative of whether the sanctions imposed were just. All of the evidence must be considered. •

The November 29, 1978, order was entered after the trial court had considered the events which had occurred from the beginning of the suit until that date, which was approximately two weeks before trial. On that date appellant still had not completed its answers to the interrogatories filed by appellee nearly seventeen months earlier.

The choice of the appropriate sanctions is for the trial court, rather than the appellate court, and as long as such sanctions are within the authority vested in the trial court, they will not be overturned unless they constitute a clear abuse of discretion. U. S. Leasing Corp. v. O’Neill, Price, Anderson & Fouchard, Inc., 553 S.W.2d 11 (Tex.Civ.App. — Houston [14th Dist.] 1977, no writ).

In our case the court could have concluded that there was a willful failure to make discovery or that appellant was acting in bad faith for the purpose of obstructing the discovery process. . Although many cases hold that the primary purpose of sanctions is to insure that discovery is accomplished rather than to punish; Young Companies, Inc. v. Bayou Corporation, 545 S.W.2d 901 (Tex.Civ.App. — Beaumont 1977, no writ); Ebeling v. Gawlik, 487 S.W.2d 187 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ), the abuse of the discovery rules has caused a trend in federal and state courts toward using sanctions to deter violations of the rules by other litigants. See “The. Emerging Deterrence Orientation in the Imposition of Discovery Sanctions,” 91 Harv.L. Rev. 1033 (1978). In National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747, a federal district court dismissed plaintiff’s cause of action for failing to timely file interrogatories. The Supreme Court of the United States, upholding this order said,

“ . . . the most severe in the spectrum of sanctions (dismissal or default) provided by the statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.”

Where there has been a willful refusal to allow discovery after being ordered to do so by the court, appellate courts have upheld severe sanctions by the trial court. G — K Properties and Genesco, Inc. v. Redevelopment Agency of City of San Jose, 577 F.2d 645 (9th Cir. 1978) (dismissal of action after plaintiff failed to answer interrogatory) Harold Affanato v. Merrill Brothers, 547 F.2d 138 (1st Cir. 1977) (defendant defaulted after repeated orders of the court to answer interrogatories), Firestone Photographs, Inc. v. Lamaster, 567 S.W.2d 273 (Tex.Civ.App. — Texarkana 1978, no writ) (default judgment as to liability and for damages as pled, without proof); Ramsay v. Santa Rosa Medical Center, 498 S.W.2d 741 (Tex.Civ.App. — San Antonio 1973, cert. den. for want of jurisdiction, 417 U.S. 938, 94 S.Ct. 3062, 41 L.Ed.2d 661) (dismissal of plaintiff’s cause of action) Thomas v. Thomas, 446 S.W.2d 590 (Tex.Civ.App. — Eastland 1969, writ ref’d, n. r. e.) (default judgment for plaintiff where defendants refused to appear for deposition).

The facts in our case, more so than in any of the ones cited above, show a necessity for prompt answers to interrogatories.

Under the circumstances, the trial court did not abuse its discretion by striking the appellant’s answer, and by refusing to allow it to present its grounds of defense, or by failing to set aside its previous order.

Appellant’s fourth point of error alleges the trial court erred and abused its discretion in granting appellee’s motion for interlocutory default judgment.

This motion was heard approximately one week before trial. The court had before it all of the evidence, up to that time, concerning the refusal of appellant to make prompt discovery, as well as the discovery which had been effected. Only six days before, appellant finally completed and tendered the remaining answers to interrogatories propounded over seventeen months earlier. The court had the authority to determine whether the sanctions previously imposed were sufficient or whether justice under the circumstances required an additional sanction. The specific sanctions which a trial court may impose under 215a(c) are necessarily cumulative and not alternative as urged by appellant. The imposition of one is not a bar to the imposition of another. The record is such that the court could have concluded that the appellant’s course of conduct prevented appellee from proving her cause of action, therefore, appellee should not be required to prove liability. This was not an abuse of discretion.

Appellant’s final point of error asserts that the trial court erred and abused its discretion in overruling appellant’s motion for reconsideration of the court’s prior orders striking appellant’s pleadings, prohibiting it from presenting any ground of defense, and granting an interlocutory default judgment.

This motion was heard and denied on December 11, 1978, one day before trial. The motion reiterated the history of the events leading to the sanctions and urged the court to set aside the sanctions. There is no record of any evidence being offered except an unsworn statement of E. W. Buckles stating that the motorcar was dismantled on June 18, 1976. The court did not err in refusing to set aside the sanctions imposed.

We initially overruled appellant’s motion to include the depositions in the record, but after reconsideration allowed- them to be filed. A review of the record, including the depositions, shows that the trial court could have concluded that the conduct of appellant was willful, in bad faith and that such conduct resulted in prejudice to the appel-lee.

No abuse of discretion is shown.

The judgment is affirmed.

PEDEN and EVANS, JJ., also sitting.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Lucille Carson HUTCHERSON, Appellant, v. M & G LAND DEVELOPMENT CORPORATION, Appellee.
    No. 16056.
    Court of Civil Appeals of Texas, San Antonio.
    June 6, 1979.
    David R. White, Jr., White & White, Uvalde,, for appellant.
    R. Emmett Harris, Harris & Vaughan, Uvalde, for appellee.
   OPINION

KLINGEMAN, Justice.

This is a suit by M & G Land Development Corporation against Lucille Carson Hutcherson for a permanent injunction to prohibit Mrs. Hutcherson’s interference in any way with M & G’s use of a portion of the Old Dry Frio County Roadway where it passes through her property. Mrs. Hutch-erson defensively pleaded statutory abandonment under Article 6703a, Texas Revised Civil Statutes, as well as common law abandonment. Mrs. Hutcherson brings this appeal from an order of the trial court granting a permanent injunction in favor of M & G.

The initial question presented is whether the court reporter’s notes of testimony adduced by appellee at the previous hearing on the temporary injunction were admissible at the subsequent hearing on the permanent injunction.

The record here reveals that appellee was initially granted a temporary restraining order without notice by the trial court, and subsequently a hearing was had on the temporary injunction at which time some testimony was heard. At the hearing on the permanent injunction appellee did not call any witness or introduce any new evidence, but over the objection of appellant, appellee was allowed to introduce into evidence the court reporter’s notes of the hearing on the temporary injunction. Appellee offered no excuse whatsoever for not putting on any evidence, except for his statement that there had been no change in conditions between the time of the hearing on the temporary injunction and the hearing on the permanent injunction, and that he did not see the necessity for putting on any further proof. At trial he relied wholly on the former testimony at the hearing on the temporary injunction.

Under the record the trial court erred in allowing the introduction into evidence of testimony adduced at the hearing on the temporary injunction. We also hold that the admission of this evidence was harmful error under the provisions of Rule 434 of the Texas Rules of Civil Procedure. Without such evidence there is nothing in the record before us to support the granting of a permanent injunction in favor of appel-lee. The trial court abused its discretion in permitting the introduction of this testimony into evidence and in granting the permanent injunction under the admissible evidence in the record.

The correct rule is set forth in Hall v. White, as follows:

Former testimony is not admissible if a witness is available at the subsequent trial. The party offering the former testimony must therefore prove unavailability, which means in Texas ‘that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.’

525 S.W.2d 860, 862 (Tex.1975). No attempt was made here to prove unavailability of appellee’s witnesses under any of the instances set forth in Hall v. White, and none of the stated conditions supporting the exception to the general rule precluding hearsay- testimony from admission is claimed to exist in the case before us. The only explanation offered by appellee in his brief is that this is an equitable matter and the court has great latitude and broad discretion in ruling on the admissibility of evidence.

The question before the Supreme Court of Texas in Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509 (Tex.1966) was whether the testimony of a witness at the first trial was admissible at the second trial. Counsel for respondent offered into evidence a transcript of the direct and cross-examination of the witnesses at the former trial. Petitioner objected to the testimony as hearsay for which no proper predicate had been laid for its admission as an exception to the general rule. The trial court overruled the objection, which action was upheld by the court of civil appeals, on the ground that no abuse of discretion was shown and that in any event the admission of the testimony was not reversible error under Rule 434 of the Texas Rules of Civil Procedure. The Supreme Court found that the trial court lacked discretion to admit the former testimony, and reversed the judgments of the trial court and the court of civil appeals, remanding the cause to the trial court.

A case almost directly in point with the one before us is Continental Oil Co. v. P. P. G. Industries, 504 S.W.2d 616 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.), where the trial court admitted into evidence the court reporter’s transcript of the testimony heard at a previous trial in the case involving issuance of a temporary injunction. The court of civil appeals held that this was error since there was no showing that the former trial was on substantially the same issues as the subsequent trial, or that the witnesses at the former trial were unavailable to testify at the latter.

This case must be reversed because of the error of the trial court in admitting such testimony into evidence. Appellant seeks either a rendition or a remand. It is apparent that appellee’s failure to put on evidence at the hearing on the permanent injunction was brought about by his mistaken belief that the testimony at the previous trial was admissible in the latter hearing. We have, therefore, concluded that the interests of justice will best be served by a remand for a new trial.

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

      . Appellant’s first point of error asserts that the trial court erred in allowing appellee, over the objection of appellant, to introduce into evidence the court reporter’s notes of the testimony produced at the hearing on the temporary injunction, where there was no excuse or explanation offered as to the reason the appel-lee could not produce its witnesses.

      . See Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509, 510 (Tex.1966); Lone Star Gas Co. v. State, 137 Tex. 279, 308, 153 S.W.2d 681, 697 (1941).

      . In proving unavailability, the trial court’s exercise of discretion in admitting testimony at a former trial is limited to a determination of the factual predicate. Each and every one of the requirements set forth in Hall v. White, 525 S.W.2d 860 (Tex.1975), is essential in establishing the proper predicate for the admissibility of the transcript of testimony in another trial. See White v. Natural Gas Pipeline Co. of America, 444 S.W.2d 298 (Tex.1969).


author: PEDEN, Justice.

text:
    TEXACO INC., Appellant, v. GREAT SOUTHERN LIFE INSURANCE COMPANY, Appellee.
    No. 17429.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 23, 1979.
    Rehearing Denied Oct. 4, 1979.
    John D. White, Houston, for appellant.
    Dow, Cogbum & Friedman, Edmund L. Cogburn, Baker & Botts, Justin M. Campbell, III, Houston, for appellee.
   PEDEN, Justice.

Texaco Inc., the lessee, appeals from the granting of a summary declaratory judgment holding, in part, that a 1968 service station lease, which had been assigned by the lessor to the Great Southern Life Insurance Company, was still in effect. Texaco complains that the trial court erred in granting Great Southern’s motion for summary judgment and in denying its own motion because, as a matter of law, the lease in question terminated on October 11, 1976.

In 1968 Texaco leased from Judge Roy Hofheinz, who was acting individually and as trustee of Hofheinz’s Family Trust No. 2, approximately one acre of land for a Texaco service station site. Paragraph 17 of the lease provided:

Change in Ownership. No change in ownership, assignment of this lease, or assignment of rentals hereunder shall be binding upon lessee unless and until lessee has been furnished either the original instrument evidencing such transfer, or assignment, or a true copy thereof.

In February of 1970, Hofheinz executed a $450,000 promissory note and deed of trust (covering the property in question) in favor of Great Southern to secure a loan. As additional security for the note, Hofheinz assigned the Texaco lease to Great Southern, specifically agreeing not to cancel it.

Before taking assignment of the lease, Great Southern asked Texaco for a letter stating that the lease was valid and in force and that Texaco would honor an assignment of it. Texaco complied on January 22, 1970, by a letter signed by Mr. A. W. Bau-cum, Executive Vice President of Texaco. Called the “Baucum Letter”, it included these statements:

“We acknowledge notification that the owner (lessor-landlord) is assigning the lessor interest in the captioned lease to your Company as additional security for a mortgage loan. With respect to the captioned lease we wish to advise you as follows:
******
“2. The lease is in full force and effect; . we have no notice of any sale, transfer, or assignment of the lease or of • the rentals except the assignment to Great Southern Life Insurance Company;
******
“5. We agree that because you are depending upon this lease to secure your mortgage loan, should it become necessary for you in the future to take ownership of the property secured by your mortgage, we will honor this lease and accept you as owner (lessor-landlord) for the remainder of the lease term as though no change in ownership had occurred.”

On March 13, 1972, after the closing of the loan between Hofheinz and Great Southern, Hofheinz conveyed the leased property (apparently by a correction deed) to Astrodomain Corporation subject to:

“2. Deed of Trust dated February 10, 1970 Grantor to C. L. Greenwood, Trustee, covering said lands, recorded in Volume 7062, page 99, of the Mortgage Records of said County, given to secure payment of a note in the original principal amount of $450,000.00 payable to the order of Great Southern Life Insurance Company;
“3. Lease dated April 18, 1968, as amended between Grantor and Texaco, Inc. described in Lease Assignment from Grantor to Great Southern Life Insurance Company, recorded in Volume 2276, page 456, of the Contract Records of said County:
******
“5. All instruments mentioned in any or all of the instruments as listed and/or existing in connection with or as security for the payment of any or all of the indebtedness mentioned herein.”

Texaco was not provided with a copy of the assignment of the lease to Great Southern (as required by its Paragraph 17 of the original lease) until August 30, 1976.

By May of 1972, Texaco had received a copy of the conveyance of the property by Hofheinz to Astrodomain, and Texaco at-torned to Astrodomain by payment of rentals to Astrodomain.

On August 10, 1976, Astrodomain wrote to Texaco purporting to cancel the lease. Realizing a mistake had been made, Astro-domain called on August 14, and wrote on August 16, to withdraw the cancellation. Texaco replied by telegram and letter, both dated August 18, that it did not consent to withdrawal of the cancellation and said that the lease would be terminated effective October 11, 1976. By deposition testimony, the property management supervisor in the marketing department of Texaco admitted it had not changed its position as to the lease between receipt of the August 10, and August 16, letters. He testified that for some time the service station facility had been leased back to the Astrodomain Corporation and he believed the same rent paid by Texaco was being paid back by Astrodo-main. Texaco removed its equipment from the premises on October 11, 1976.

Great Southern began foreclosure proceedings after Astrodomain defaulted on its note in July, 1976, and on November 2, 1976, a substitute trustee sold the subject property at foreclosure and conveyed it to the purchaser, Great Southern.

Texaco says the principal question on appeal is whether it was entitled, as a matter of law, to accept the August 10, 1976, cancellation of the lease by Astrodomain.

When, as here, two or more parties file motions for summary judgment and at least one is granted and the other overruled, we determine on appeal all questions presented, including the propriety of the order overruling the losing party’s motion. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958); Estrada v. River Oaks Bank and Trust Co., 550 S.W.2d 719, 724 (Tex.Civ.App.1977, writ ref. n. r. e.). Texaco maintains that the disputed lease had been terminated as a matter of law by action of the parties to the lease, so the trial court’s granting of Great Southern’s motion for summary judgment was improper; further, that because the lease was terminated, no genuine issue of material fact existed, and the trial court erred in overruling its motion for summary judgment.

Great Southern contends that without change of position by Texaco,' Astrodo-main’s purported withdrawal of its cancellation of the lease should be honored. It is uncontroverted that when the cancellation letter was written to Texaco on August 10, 1976, its writers were not aware that Hof-heinz had specifically agreed not to cancel the lease.

We find no Texas cases in point. The Arkansas Supreme Court held in Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 73, 239 S.W. 742 (1922):

A notice of cancellation of a lease, to take effect in the future, may be revoked or withdrawn before it has been acted on by the other party to the contract, and in such case, the rights of the parties under the contract are the same thereafter as if the notice of cancellation had not been given.

On the other hand, it is stated at 120 A.L.R. 558 (1939):

It seems clear, on principle and according to the weight of authority, that the landlord’s unilateral action or conduct, not assented to by the tenant, cannot have the effect of abrogating the legal consequences of the notice to quit in terminating the tenancy, since the tenant is entitled to count upon it, and may have acted under the supposition that the landlord would insist upon his right to enforce the notice to vacate, (citing cases).

We hold that where, as in our case, the landlord mistakenly sent a cancellation notice and the tenant did not change its position in reliance upon the cancellation notice before a withdrawal of it was communicated (within four days), the withdrawal is effective.

Affirmed.

COLEMAN, C. J., and DOYLE, J., participated.


text:
    Donald JOUSAN, Appellant, v. PRESIDIO CORPORATION, Appellee.
    No. 17445.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 6, 1979.

      Conner, Odom & Clover, C. E. Clover, Jr., Sealy, for appellant.
    Oldham & Oldham, David H. Oldham, Houston, for appellee.
    Before EVANS, WALLACE and WARREN, JJ.
   WARREN, Justice.

Donald Jousan, a co-defendant below, appeals a judgment overruling his plea of privilege.

Suit was filed by appellee (Presidio) against appellant and Walter Gass on a note. The note was signed by Gass individually and as attorney in fact for Jousan. Presidio’s controverting affidavit to Jou-san’s plea of privilege claimed that since the note was payable at Presidio’s office in Houston, Harris County, Texas, venue was proper in Harris County under Section 5(a), Article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon’s Supp.1979).

The only issue is whether the admission into evidence of the note and power of attorney, both duly acknowledged, was sufficient without further authentication to establish a prima facie case of execution of the note against appellant.

Henry Gruy, president of Presidio, and the only witness, testified that he never talked with Jousan about the note or power of attorney. On the date the note was executed Gass brought the power of attorney, prepared on the stationery of the law firm representing Jousan at trial, allegedly signed by Jousan and containing an acknowledgment. Gruy had known Jousan since 1972, and had seen his signature a number of times. He thought the signature was Jousan’s but was not willing to swear to it.

The trial court admitted the note and power of attorney into evidence over objection that they had not been properly authenticated. Appellant presented no evidence and the court overruled the plea of privilege.

Appellant claims that there was no evidence, insufficient evidence, that the trial court’s judgment was against the great weight and preponderance of the evidence that Jousan authorized Gass to sigh the note and that the trial court incorrectly placed the burden of proof on Jousan to disprove Gass’ authority to sign the note.

We hold that the admission of the note and power of attorney, both duly acknowledged before a notary public, was proper and established a prima facie case that Gass signed the note individually and as the attorney in fact for Jousan.

A document containing a certificate of acknowledgment taken before a notary public is self-proving. Hughes v. Dopson, 135 S.W.2d 148 (Tex.Civ.App. — Amarillo 1939, no writ); Smith v. Dozier Co., 66 S.W.2d 744 (Tex.Civ.App. — Austin 1933, no writ).

Art. 3723, Tex.Rev.Civ.Stat.Ann. provides, “All . . . acknowledgments taken by notaries public . . . shall be received as evidence of the facts therein stated in any court of this state.”

In Hughes v. Dopson, supra, the defendant pled non est factum in a suit against him on a note which allegedly had been extended. The extension contract was acknowledged before a notary public. The court held that when defendant filed liis sworn plea of non est factum, he shifted the burden of establishing the execution of the extension contract to the plaintiff. By introducing the acknowledged extension contract into evidence, plaintiff proved a prima facie case of execution and “while the burden of proof remained upon him (plaintiff) throughout the trial, the weight of evidence shifted immediately to appellee (defendant) and it became his duty to support his plea of non est factum by admissible testimony.”

In our case the appellant did not deny execution of the note but denied that Gass had' authority to act for him. The power of attorney introduced was a broad one including specifically the right of Gass to execute a note on behalf of appellant.

By introducing the acknowledged power of attorney and note, appellee established a prima facie case. It then became necessary for appellant to introduce evidence rebutting the prima facie case, which he failed to do.

The judgment is affirmed.


author: EVANS, Justice.

text:
    Gary R. LOOK, Appellant, v. Eugene WERLIN, Jr. et al., Appellees.
    No. 17454.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 6, 1979.

      Wheat, Thornton & Burnett, William L. Burnett, Houston, for appellant.
    Baker, Brown, Sharman, Wise & Stephens; Michael Andrews, Houston, for ap-pellees.
   EVANS, Justice.

This is an appeal by the defendant-lessee, Gary Look, from a judgment in favor of the plaintiffs-lessors in a suit for anticipatory breach of a commercial lease of a portion of a shopping center owned by the plaintiffs. The trial court sitting without a jury entered judgment against Look for $29,296.00 as damages plus $1,500.00 for attorney’s fees and entered a take nothing judgment against two other defendants, P. O. Fowler and Fowler-Look Veterinary Clinic. The trial court found that Look was individually liable because he had signed the lease in his individual capacity.

The defendant Look does not contest his liability for such damages as may have resulted from his anticipatory breach of the lease. He, however, questions the legal and factual sufficiency of the evidence to establish the essential elements of damages under the cause of action alleged.

The measure of damages for anticipatory breach of a lease where the lessor does not relet the premises or exercise such control over the premises as to exclude the lessee from possession is “the difference between the present value of the rental contracted for in the lease and the reasonable cash market value of the lease for its unexpired term”. John Church Co. v. Martinez, 204 S.W. 486, 489 (Tex.Civ.App. — Dallas 1918, writ ref’d); Thomas v. Morrison, 537 S.W.2d 274 (Tex.Civ.App. — El Paso 1976, writ ref’d n. r. e.).

The plaintiff, Eugene Werlin, Jr., testified that the leased premises had been specially prepared for use as a veterinary clinic and that the defendants had used the premises as a veterinary clinic, making rental payments each month from December 1,1973, until August 1,1976. Thereafter, the defendants abandoned the premises, and although the plaintiffs had made diligent efforts to relet the premises, they were unable to do so at the time of trial in November 1978. The plaintiff, Werlin, testified, in effect, that the leased premises had a market value if relet but that it had a market value only in the event it could be relet. The trial court found that the plaintiffs had made every reasonable effort to relet the premises, that the premises were vacant at the time of trial, and that the property would likely remain unrented for the remainder of the lease term due to the nature of its renovation as a veterinary clinic.

In support of his contention that the plaintiffs failed to establish the element of the reasonable rental value of the premises for the period following the lessee’s abandonment, defendant, Look, relies upon Cantile v. Vanity Fair Properties, 505 S.W.2d 654 (Tex.Civ.App. — San Antonio 1974, writ ref’d n. r. e.); and Warncke v. Tarbutton, 449 S.W.2d 363 (Tex.Civ.App. — San Antonio 1969, writ ref’d n. r. e.). These cases are factually distinguishable from the case at bar. In Cantile, the lessor’s witness testified, in effect, that the lease had no market value because it was not paying any rental. The San Antonio Court of Civil Appeals, speaking through Chief Justice Cadena, held that the only conclusion which could be drawn from such testimony was that the lessor was referring to the amount of the rentals received, rather than to the reasonable market value of the premises. In Wamcke, the undisputed evidence showed that the space had been relet and was actually producing rental income, and the trial court simply found that the market value of the premises equaled the amount of the unpaid rentals. Thus, there was no basis for any recovery from the lessee. In the case at bar, the testimony offered by the plaintiffs was uncontroverted by the defendant and such evidence is legally and factually sufficient to support the trial court’s implied finding that the premises had no market value.

The question remaining for this court’s determination is whether the trial court’s judgment should be modified so that the plaintiffs’ recovery is limited to the discounted value of the future rental installments computed to the time of trial: The trial court’s unchallenged findings of fact reflect that at the time of trial there were 88 lease installments of $360.00 each, totaling the sum of $31,680.00, remaining unpaid for the balance of the term of the lease. The conclusions of law indicate that the trial court determined that the plaintiffs were entitled to recover the full value of the future rental installments, although a mathematical error was apparently made in the computation of such amount because the judgment awarded only the sum of $29,296.80.

There is no evidence in the record indicating the percentage amount by which the total sum of the future lease payments should be discounted to afford plaintiffs a recovery of the present cash value at time of trial of such future rental installments. In Texas, specific evidence of this nature is not required, and it is generally for the jury or the trial court to determine the present value of future damages. Missouri Pacific Railroad Co. v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283 (1960); Renegar v. Cramer, 354 S.W.2d 663 (Tex.Civ.App. — Austin 1962, writ ref’d n. r. e.). It has been held that the rate of interest fixed by the legislature may be considered by the court as an appropriate discount factor.' Lee v. Lee, 509 S.W.2d 922 (Tex.Civ.App. — Beaumont 1974, writ ref’d n. r. e.).

The Texas legislature has fixed pre-judgment interest at 6 percent per annum and post-judgment interest at 9 percent per an-num. Article 5069-1.03 et. seq. Tex.Rev. Civ.Stat.Ann. (1971); and Article 5069-1.05, Tex.Rev.Civ.Stat.Ann. (Supp.1978). Since the award of the future rental installments should have been given a discounted value, computed to the time of trial, the post-judgment interest rate of 9 percent will be used to determine the plaintiffs’ recovery of such future damages.

The trial court’s judgment is modified to provide that the plaintiffs recover from the defendant the sum of $29,922.42, such sum being the total of the amount of $10,080.00, representing the 28 unpaid rentals due to time of trial, the amount of $17,342.42, representing the discounted value of the 60 future installments of rent, and the amount of $1,500.00, representing the trial court’s award of attorneys fees, together with interest on said sum at the rate of 9 percent per annum from and after the date of the trial court’s judgment, and all costs incurred herein and in the trial court; as so reformed, the trial court’s judgment is affirmed.

WALLACE and WARREN, JJ., also sitting.


author: DOYLE, Justice.

text:
    Don K. LANGSON et al., Appellants, v. SCHOLL LUMBER COMPANY, Appellee.
    No. 17416.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 13, 1979.
    Rehearing Denied Oct. 11, 1979.

      Bailey & Black, David B. Black, Houston, for appellants.
    Glassman & Teed, S. Mitchell Glassman, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   DOYLE, Justice.

This is an appeal from a suit on a sworn account and upon a written guaranty of it executed by Don K. Langson and Richard K. Langson (appellants) to cover debts incurred by Langson Brothers Construction Company, Inc. (Company) in purchasing lumber and materials from Scholl Lumber Company (appellee). We reverse and render.

The facts in this suit are somewhat complicated and are vehemently disputed. During 1974, the Langson brothers purchased lumber and other materials from appellee and executed a guaranty agreement. In November 1974, appellee filed its petition, duly verified, naming appellants and the Company as defendants. No citation was issued to the Company. Appellants answered on behalf of themselves and the Company, alleging special exceptions and offering a plea in abatement. Before the case finally reached trial, there was a dismissal, a reinstatement and an amended petition filed which revealed that the Company had been adjudged a bankrupt in 1976 and that in the final accounting appellee had been awarded $234.89, which was credited to appellant’s account. The Company was not made a party to the amended petition, appellee’s contention being that the adjudication of bankruptcy made such inclusion unnecessary. The record before this court includes findings of fact and conclusions of law.

Appellant has brought fourteen points of error. In view of our disposition of this case, only points of error no. one, complaining of the trial court’s error in finding that the corporation was duly made a party to the suit, and points two through six plus nine through eleven, all concerning the trial court’s errors in its findings of fact and conclusions of law with reference to the guaranty agreement^ will be considered.

Point of error no. one is immaterial in that the major issue regarding the corporation was its bankruptcy, and counsel for both parties stipulated as to the adjudication of said corporation as a bankrupt. Upon the pronouncement of bankruptcy, the corporation was no longer a necessary party to this suit, Article 1987, V.A.C.S. and could be dismissed from any pending litigation. Article 2088, V.A.C.S. Brooks v. American Nat. Bank, 103 S.W.2d 246 (Tex.Civ.App. — Beaumont 1937, writ dism’d.); Boggs v. Farmer's Fund of Texas, 37 S.W.2d 205 (Tex.Civ.App. — Dallas 1931, no writ). Consequently, the Langson brothers were no longer merely secondarily liable as signers of a guaranty, but had actually become the principals. Huggins v. Johnston, 120 Tex. 21, 35 S.W.2d 688 (1931). Thus, the issue of the corporation’s being made a party to the suit and being served with citation became moot.

Appellant’s points of error regarding the guaranty agreement will be discussed jointly. This written guaranty, signed by appellants, provides:

The undersigned, Don K. Langson and Richard K. Langson, agree to personally guarantee the purchases of Langson Brothers Construction Co., Inc. from Scholl Lumber Company, Inc., all purchases are to be made by purchase order only. Signed by Don K. Langson, Richard K. Langson, Richard Ardoin Supt., or Barbara Leach Purchasing Agent.

Appellants contend this guaranty means that the Langsons only guaranteed those purchases made by a written purchase order and signed for by the persons named therein. Appellants also argue that this guaranty should be construed by the rule of stric-tissimi juris. In Empire Steel Corp. of Texas v. Omni Steel Corp., 378 S.W.2d 905 (Tex.Civ.App. — Fort Worth 1964, ref’d n. r. e.), the court interpreted this rule to mean that where there is doubt and uncertainty existing as to the meaning of a guaranty which would render it susceptible to two interpretations, one favorable to the guarantor, the other unfavorable, the former interpretation will be adopted in favor of the guarantor. In a subsequent case, the Supreme Court of Texas interpreted this rule to mean that after the terms of a guaranty agreement have been ascertained, the rule of strictissimi juris applies, meaning that the guarantor is entitled to have his agreement strictly construed and that it may not be extended by construction or implication beyond the precise terms. McKnight v. Virginia Mirror Company, 463 S.W.2d 428 (Tex.1971).

Texas law is well settled as to the rights of a guarantor as in the case before us. He may rely and insist upon the terms and conditions of his guarantyship being strictly followed, and “If the creditor and principal debtor vary in any degree the terms of the contract, then a new contract has been formed, upon which new contract the surety is not obligated and cannot, therefore, be bound.” Jarecki Mfg. Co. v. Hinds, 295 S.W. 274 (Tex.Civ.App.-Eastland 1927); 6 S.W.2d 343 (Tex.Comm’n.App.1928, writ dism’d).

The record in this case shows that appellee introduced into evidence a group of invoices for building materials allegedly sold to the Company and delivered to various job sites. No purchase orders were introduced, and there was no testimony that any such orders existed with reference to the materials sold.

Appellee argues that the guaranty agreement is clear and plain and that said agreement did not require written purchase orders but only “that the goods be signed for in receipt” by the persons named in the agreement. We find nothing in the agreement to the effect “that the goods be signed for, in receipt by” the persons named in the agreement. The guaranty recites: “ . . . all purchases are to be made by purchase order only.” The agreement does not mention invoices. It would require a strained and extended construction by this court to conclude that “Signed by Don K. Langson, Richard K. Langson, Richard Ar-doin Supt., or Barbara Leach Purchasing Agent” had reference to oral purchase orders or invoices. We hold that the guaranty agreement executed by appellants required that appellee sell goods to appellants only on purchase orders signed by the persons named in the agreement. There is no evidence to support the trial court’s conclusions of law no. 4 that “The terms of the guaranty agreement (Plaintiff’s Exhibit number 4) were complied with in all respects” and no. 5, that “Oral purchase orders complied with the terms of the written guaranty agreement.” Appellee sold goods to appellants on open account invoices. Its failure to procure purchase orders signed by the authorized persons resulted in a variance of the terms of the guaranty agreement, thereby relieving appellants from liability as a matter of law. McKnight v. Virginia Morror Co., supra at 430. Appellants’ points of error enumerated above are sustained.

The judgment of the trial court is reversed and judgment is rendered for appellants.

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


text:
    Ella Bridges Simpson BASSETT v. Sidney Winston BASSETT.
    No. 17451.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 13, 1979.
    Rehearing Denied Oct. 18, 1979.

      Brock, Waters & Pigg, Ralph Brock, Lubbock, for appellant.
    Scherer, Roberts, Slone, Gresham & Ly-tle, J. Michael Lytle, Richmond, for appel-lee.
    Before EVANS, WALLACE and WARREN, JJ.
   EVANS, Justice.

This is an action to cancel a deed for fraud.

The plaintiff, Sidney Bassett, and the defendant, Ella Bridges Simpson Bassett, both in their 80’s at time of trial, were married on September 7, 1976, having known each other for a number of years. At the time of their marriage, Mrs. Bassett was a resident of Lubbock, Texas, and Mr. Bassett lived in Richmond, Fort Bend County. Following their marriage, the parties went to Mrs. Bassett’s home in Lubbock so that Mrs. Bassett could. get her things together to move to Richmond. On September 14,1976, seven days after the wedding, Mr. Bassett executed and delivered a deed to Mrs. Bas-sett, conveying an undivided one-half interest in certain land which he owned in Fort Bend County. The parties stayed at Mrs. Bassett’s home in Lubbock until September 28, 1976, at which time Mr. Bassett returned alone to Richmond, Mrs. Bassett declining to go with him. About eight months later, the parties were divorced. Mr. Bassett subsequently filed this suit to cancel the deed, alleging that he had been induced to execute the deed upon Mrs. Bas-sett’s false representation that she would move to Richmond and live there with him as his wife.

In response to special issues the jury found:

Special Issue No. 1
Do you find from a preponderance of evidence that prior to the signing of the Deed in question in this case, Ella Bridges Simpson Bassett made false representations, which she knew at that time to be false, as to material facts to Sidney Winston Bassett with the intent of inducing him to sign said Deed?
Answer: “We do."
Special Issue No. 2
Do you find from a preponderance of evidence that prior to the signing of the Deed in question in this case, Sidney Winston Bassett relied upon false representations, if any, made by Ella Bridges Simpson Bassett, which she knew at the time to be false, as material facts, if any? Answer: “We do."
Special Issue No. 3
Do you find from a preponderance of evidence that prior to the signing of the Deed in question in this case that Sidney Winston Bassett would not have signed said Deed except for the false representations, if any, made by Ella Bridges Simpson Bassett as to such material facts, if any?
Answer: “We do.”
Special Issue No. 4
Do you find from a preponderance of evidence that prior to the signing of the Deed in question in this case, there existed a confidential relationship between Sidney Winston Bassett and Ella Bridges Simpson Bassett?
Answer: “We do.”
Special Issue No. 5
Do you find from a preponderance of evidence that Sidney Winston Bassett’s transfer of the title of the land in question to Ella Bridges Simpson Bassett was not the result of fraud, coercion or undue influence on the part of Ella Bridges Simpson Bassett?
Answer: “We do not.”

On the basis of these findings, the trial court awarded judgment to Mr. Bassett, setting aside the deed.

Mrs. Bassett first contends that the promise in question is unenforceable because it is against public policy and that such a promise, even if fraudulently made, cannot serve as a basis for the plaintiff’s action. In support of this contention, Mrs. Bassett relies upon the rationale of cases such as Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152 (1931) declaring contracts for the performance of marital duties unenforceable as against public policy.

The circumstances in the cases relied upon by Mrs. Bassett are distinguishable from the facts in the case at bar. Mr. Bassett does not ask that Mrs. Bassett be compelled to perform her agreement with him but, instead, requests the court to cancel his deed made in reliance on her fraudulent promise and to restore him to his former position. The cause of action is founded in tort, not in contract, and the defrauding party cannot defend upon the ground that the transaction induced by the fraudulent promise was illegal or against public policy. 37 C.J.S. Fraud Section 68, p. 361; McVeigh v. McGurren, 117 F.2d 672 (7th Cir. 1940) cert. denied, 313 U.S. 573, 61 S.Ct. 960, 85 L.Ed. 1531; A. M. Kidder & Co. v. Clements A. Evans & Co., 111 Ga.App. 484, 142 S.E.2d 269, 273 (1965).

Mrs. Bassett next contends that the evidence is legally and factually insufficient to support the jury’s findings to special issues 1, 2 and 3. In reviewing the “no evidence” points the court will consider only that evidence which is favorable to the jury’s findings and will disregard all other evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In considering the points challenging the factual sufficiency of the evidence, the court will consider the entire record to determine whether the jury’s findings are manifestly unjust in light of all of the competent evidence in the record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The substance of Mr. Bassett’s testimony is that prior to the marriage the parties agreed that when they were married they would make their home in Richmond. Following the wedding, Mrs. Bassett said she wasn t going to Richmond unless Mr. Bas-sett gave her some land, stating “You don’t think I’m going to Richmond unless you sign this deed.” In reliance on Mrs. Bas-sett’s promise that she would come to live with him in Richmond if he gave her the deed, he caused the conveyance to be prepared and, after execution, delivered it to her. He would not have deeded the land to her if he had known she never intended to move to Richmond and live with him there as his wife. Mrs. Bassett subsequently accused Mr. Bassett of hiding property, demanded that he give her money and more land and told him that she was not going anywhere until he deeded more land to her.

Mrs. Bassett admitted that prior to her marriage to Mr. Bassett she had told him that when they were married she would go to Richmond to live with him and that she made similar statements to him after their marriage and prior to the date the deed was executed. She denied, however, making the statements he attributed to her concerning her refusal to go to Richmond unless he signed the deed and with respect to subsequent demands for money and more land.

It is undisputed that Mrs. Bassett did not carry out her promise to go to Richmond with Mr. Bassett, and the essential fact in dispute was whether Mrs. Bassett intended to keep the promise at the time it was made.

Since the promise related to a fur ture event, the burden was upon Mr. Bas-sett to allege and prove not only that the promise was false, but that at the time it was made, Mrs. Bassett had no intention of keeping it. Motors Ins. Corp. v. Freeman, 304 S.W.2d 580, 584 (Tex.Civ.App. Dallas 1957, no writ). The fact that such promise was not performed by Mrs. Bassett does not,, in itself, establish such fraudulent intent. Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118 (1943); Myers v. King, 506 S.W.2d 705 (Tex.Civ.App. Houston [1st Dist.] 1974, writ ref’d n. r. e.).

The element of fraudulent intent may be established by circumstantial evidence, and the jury was entitled to consider all the attendant circumstances in determining whether Mrs. Bassett had the intention of keeping the promise at the time it was made. The jury could have inferred from the testimony that Mrs. Bassett made no real preparation for a permanent move to Richmond and that she had indicated very little interest regarding such a move. There was also testimony which tended to show that after the deed was executed and delivered, Mrs. Bassett showed more interest in obtaining additional property and money from Mr. Bassett than in moving to Richmond with him. Furthermore the jury was at liberty to consider Mrs. Bassett’s denial of the statements attributed to her concerning the nature of her promise as some evidence of her intention not to perform the promise at the time it was made. Myers v. King, supra; Markman v. Gaitz, 499 S.W.2d 692 (Tex.Civ.App. Houston [1st Dist.] 1973, writ ref’d n. r. e.); King v. Tubb, 551 S.W.2d 436 (Tex.Civ.App. Corpus Christi 1977, no writ).

Although Mrs. Bassett gave a plausible reason for her refusal to move to Richmond with Mr. Bassett, stating that subsequent to the marriage she had found Mr. Bassett’s physical desires to be abnormal and objectionable, her testimony in this respect was contradicted by Mr. Bassett, and the jury was at liberty to accept his version and .to reject hers. The record contains legally competent evidence in support of the jury’s findings with respect to the first three special issues, and considering the record in its entirety this court is unable to determine any basis for disturbing the jury’s affirmative responses to such issues. Insurance Co. of North America v. Cangelosi, 217 S.W.2d 888 (Tex.Civ.App. Waco 1949, no writ).

The next complaint of Mrs. Bassett is that the jury’s response to special issue no. 4 is merely evidentiary and insufficient to create a presumption of fraud, coercion and undue influence on the part of Mrs. Bassett and that in connection with special issue no. 5, the trial court erred in placing the burden of proof upon Mrs. Bassett to establish the absence of fraud, coercion or undue influence with respect to the taking of the deed. She contends further that the evidence established the fairness of the transaction, as a matter of law, and that the jury’s findings with respect to special issue no. 5 are against the great weight and preponderance of the evidence. In view of the fact that the trial court’s judgment may be sustained on the basis of the jury’s findings to the first three special issues, it is unnecessary to determine whether the trial court erred in submitting special issues 4 and 5 and whether such issues have evidentiary support. An examination of the entire record does not reflect that the trial court’s submission of such special issues, if error, was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, Texas Rule of Civil Procedure.

In her remaining points of error Mrs. Bassett contends that her defense was substantially prejudiced by the trial court’s conduct during the course of trial. She complains that the trial court committed reversible error in permitting argumentative cross-examination on immaterial questions of fault regarding her two prior divorces and that the trial court also erred in requiring her to answer a hypothetical question regarding her intent to move to Richmond. She also complains that she was interrupted by the trial court in the midst of her answers upon cross-examination and that she was not permitted to fully explain her answers to questions at the time the questions were asked. A review of the entire record in the case does not show that the matters complained of reflect error requiring a reversal of the trial court’s judgment. Rule 434, T.R.C.P.

The trial court’s judgment is affirmed.


author: PER CURIAM.

text:
    LAREDO JUNIOR COLLEGE DISTRICT et al., Appellants, v. Dr. Judith ZAFFIRINI, Appellee.
    No. 16389.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 19, 1979.
    Rehearing Denied Oct. 11, 1979.
    John N. McCamish, Jr., Michael W. Fox, Soules & McCamish, San Antonio, Oscar J. Pena, Laredo, for appellants.
    Matt Garcia, San Antonio, C. M. Zaffirini, Laredo, for appellee.
   OPINION

On Motion for summary reversal of temporary injunction or for advancement on docket, and for extension of time.

PER CURIAM.

Defendants have filed a motion that we summarily enter judgment reversing the order of. the trial court granting plaintiff’s prayer for a temporary injunction based on defendant’s inability to secure a statement of facts. This motion contains an alternative prayer for advancement of the case. Additionally, defendant has filed a motion for extension of time within which to file the statement of facts. The court reporter has timely prepared and delivered to defendants a statement of facts embodying the evidence heard by the trial court at a hearing held by the district court of Webb County on August 13, 1979. Defendants have tendered to the clerk of this Court a statement of facts which is approved only by counsel for defendants. The motion for summary reversal recites that counsel for plaintiffs has refused to approve such instrument and that defendants are unable to present the statement , of facts to the trial judge because the judge has been “recused from all further proceedings.”

An examination of the transcript reflects that the trial court’s order of which defendants complain is not a final order and is not an interlocutory order of the nature made appealable by Rule 385, Tex.R.Civ.P. The appeal is, therefore, dismissed for want of jurisdiction and defendants’ motions are dismissed as moot.

Under Rule 385(d), an appeal will lie from an order granting or refusing a temporary injunction, or granting or overruling a motion to dissolve a temporary injunction.

In its original petition in this case plaintiff sought a temporary restraining order, a temporary injunction and a permanent injunction. The petition was filed on July 25, 1979, and on the same day the trial judge granted a temporary restraining order without hearing, setting August 3, 1979, as the date for the hearing on plaintiff’s application for temporary injunction. On August 2, 1979, plaintiff filed her motion to reset the hearing for August 13, 1979, due to the inability of her counsel to appear on August 3, and further asked that the temporary restraining order be extended to the date of the hearing on the application for temporary injunction.

On August 2, 1979, the trial judge reset the hearing on the application for temporary injunction for August 13, and further ordered that the temporary restraining order issued on July 25 be “extended” through August 2, 1979.

On August 13, 1979, the parties appeared for the hearing on the application for temporary injunction. According to the order signed by the trial judge on August 17, 1979, after the hearing had begun the trial court was informed by counsel for defendant that he intended to call 40 witnesses to testify on behalf of defendant. The order recites that the court had set other cases for hearing on August 13, 1979, including some cases to be heard at 2:00 p. m. on that date, and that the court therefore recessed the hearing at 1:30 p. m. until August 27,1979, “the earliest possible time for the Court to resume and conclude this hearing, at which time the Court has cleared four days from its docket for this cause . . . .” The order then continues with the recitation that the court is of the opinion that the status quo “should be preserved until the hearing on [the] application for temporary injunction is concluded”, and that the court’s jurisdiction be protected until such hearing is concluded.

Such preamble is followed by an order that defendants “are . . . temporarily enjoined” from doing certain specified things “until the hearing on the application for temporary injunction is concluded or until further orders of” the court.

Rule 680 provides that a temporary restraining order granted without notice “shall expire by its terms within such time after entry, not to exceed ten days,” as the court fixes, unless within the time so fixed the court, for good cause shown, extends it “for a like period”, or unless the party restrained consents to a longer extension.

In this case, the court ordered one extension of the restraining order for a period ending on August 2, although the hearing on the application for temporary injunction was postponed from August 3 to August 13. When the temporary injunction hearing was begun on August 13, therefore, the temporary restraining order was no longer in force. The rule contains no provision for a third extension unless, perhaps, such additional extension is with the consent of the party against whom the temporary restraining order is directed.

It is clear that the order dated August 17 cannot be considered as an order granting a temporary injunction. Traditionally, a temporary injunction is one which restrains the doing of certain acts during the pendency of the suit to which it is ancillary. Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14 (1902). The order of August 17 unequivocally shows that its purpose was merely to postpone completion of the hearing on plaintiff’s application for temporary injunction for two weeks, and that the court’s concern was with maintenance of the status quo until such hearing could be completed. In effect, such order was an invalid attempt to prolong the life of the temporary restraining order.

Since the order of August 17 cannot be considered an order granting a temporary injunction, it cannot be considered an ap-pealable interlocutory judgment under the provisions of Rule 385.

The appeal is dismissed for lack of an appealable order. The motions for summary reversal, for advancement and for extension of time within which to file the statement of facts are dismissed.


author: KLINGEMAN, Justice. KLINGEMAN, Justice.

text:
    Donald J. POE and wife, Effie Poe, Appellants, v. SAN ANTONIO EXPRESS-NEWS CORPORATION and Rupert J. Murdoch, Appellees.
    No. 16150.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 19, 1979.
    Rehearing Granted, as to Rupert J. Murdoch, Oct. 24, 1979.
    Rehearing Denied as to Appellee Express-News Corp., Oct. 24, 1979.
    Second Motion for Rehearing Overruled as to appellee Express-News Corp., Nov. 21, 1979.
    Earle Cobb, Jr., Cobb, Thurmond, Bain & Clark, San Antonio, for appellants.
    G. Thomas Coghlan, Mark J. Cannan, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellees.
   OPINION

KLINGEMAN, Justice.

This is an appeal from a summary judgment proceeding in a defamation suit. Donald H. Poe and wife, Effie Poe, brought suit against San Antonio Express-News Corporation and Rupert J. Murdoch for damages allegedly arising out of a publication in the San Antonio Express-News dated September 19, 1976, which suit is founded on theories of libel, slander, malicious prosecution, barratry, unlawful interference with plaintiff’s right of privacy, interference with plaintiff’s employment contract, and abuse of process. Defendant’s answer consisted of a general denial and the defenses that the statements contained in a newspaper article were true or substantially true; that the publication in question was absolutely privileged under Article 5432, or alternatively, the provision was conditionally privileged; that Poe was a “public official” at all material times and that the article was not published with malice; and that Poe’s damages are at best nominal.

On May 15, 1978, defendant moved for summary judgment based upon the pleadings, depositions on file, and affidavits and exhibits affixed to the motion. On June 5, 1978, judgment was entered granting defendant’s motion for summary judgment and decreeing that plaintiff take nothing. San Antonio Express-News Corporation will sometimes be referred to hereinafter as defendant, and Donald H. Poe and wife, Effie Poe, as plaintiff.

Donald Poe was a school teacher, who taught science at Fox Tech High School, and Effie Poe was his wife, at all times material since this cause arose. Mr. Poe taught school for 22 years. On Sept. 8, 1976, a female member of his science class accompanied by her mother reported to the San Antonio Police Department (SAPD) that Mr. Poe had sexually molested her after school in the classroom. These allegations resulted in an investigation by the SAPD and by the Fox Tech principal. The principal, after his investigation, decided that Mr. Poe should remain as a teacher.

Shortly thereafter, the student, her mother, and a neighbor telephoned Paul Thompson, a columnist employed by defendant, and related their version of the story. Subsequently, Thompson telephoned the, then, Bexar County District Attorney, Ted Butler, about this matter. After completion of interviews with various parties (none of which were with Poe), Thompson wrote the article which appeared in the San Antonio Express-News on Sept. 19, 1976, and which is the basis of plaintiff’s cause of action. On Oct. 20, 1976, the Bexar County Grand Jury returned an indictment charging plaintiff with indecency with a child. Plaintiff was found not guilty after a jury trial. Plaintiff sometime thereafter brought this action for actual and exemplary damages.

The allegedly libelous newspaper article has the following headline: “GIRLS SAY TEACHER FONDLED THEM.” The first paragraph reads as follows:

This really happened the afternoon of Sept. 8 at one of our local high schools: A 14-year-old girl freshman rushed from the building in tears claiming a middle-aged male teacher had spoken dirty words and fondled her obscenely while he had her one-on-one in his classroom.

Another portion of the column reports that when the girl was ordered to remain in the classroom after school “unhinged male hanky-panky broke out”; that the teacher began talking “tensely and breathing spas-tically”; that “a strange hooded look came into his eyes”; that “he flung his arms around her and began asking questions about menstruation, personal hygiene, whether she ever ‘made out with a boy,’ and similar touchy matters”; that “he capped this performance by suddenly unzipping her jeans and placing a hand inside.”

The article later declares that “as for the mid-fortyish teacher, he steadfastly denied any wrongdoing and called the charges against him a tissue of lies and a total invention.”

In thirteen points of error plaintiff asserts that the trial court erred: (1) in granting the motion for summary judgment; (2) in holding as a matter of law that Poe was a “public official”; (3) in holding as a matter of law that there was no libel or slander because Poe was not identified by name in the article published; (4) in holding that the statements made by defendant were privileged; (5) in holding that the statements made by defendant were not libelous, slanderous, or defamatory; (6) in holding that defendants were not negligent; (7) in holding that there was no intentional or negligent interference with Poe’s employment contract; (8) in holding that there was no abuse of process; and (9) in holding that there was no invasion of privacy.

This is a summary judgment proceeding. When a person elects to file a motion for summary judgment pursuant to Rule 166-A of the Texas Rules of Civil Procedure, he takes upon himself an extraordinary burden. In. a summary judgment proceeding, the burden is on the movant to establish, as a matter of law, all the matters constituting his cause of action or his defense. All doubts as to the existence of a genuine issue of a material fact are resolved against the movant. If the motion involves the credibility of affiants or deponents, or the weight of the showings, or a mere ground of interference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Evidence which favors the movant’s position is not considered unless it is uncontradicted. If such uncontradicted testimony is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965).

In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of the plaintiff’s claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. The provisions of Rule 166-A are applicable to defendants and plaintiffs who move for summary judgment; the judgment should be granted, and if granted should be affirmed, only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

Defendant relies heavily on New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), both here and in the trial court. It asserts that under such holding Poe is a “public official” and, as such, is not entitled to recover liability unless he shows that the statement was made “with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” [Hereinafter referred to as the New York Times standard.] Plaintiff relies heavily on Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex.1976).

Gertz is particularly important because it (1) modifies previous holdings of the Supreme Court on the characteristics of a-public official or public figure; (2) holds that States may define for themselves the applicable standard of liability for a publisher or broadcaster of a defamatory publication injurious to a private individual so long as they do not impose libel without fault; (3) sanctions a less strict negligence standard of liability in defamatory action instituted by private individuals. In Foster v. Laredo Newspapers, Inc., 530 S.W.2d 611 (Tex.Civ.App.), this court affirmed a summary judgment that Foster take nothing in a libel action instituted by Foster against the Laredo Newspaper. This court held that Foster was both a “public official” and a “public figure” and that the New York Times standard was applicable. The Supreme Court of Texas reversed both this court and the trial court and remanded the case to the trial court for a new trial holding that no evidence existed establishing that Foster was either a public official or a public figure. Recognizing its options under the Gertz decision, the court declined to extend to private individuals the New York Times standard of requiring proof of actual malice, and established an ordinary negligence standard.

Defendant cites a number of cases from outside jurisdictions holding that a school teacher is a public official. Under Gertz and Foster we are not compelled to follow these holdings. Defendants cite no Texas decisions, nor have we found any, holding that a school teacher is a public official. Texas courts have not held that all governmental employees are public officials. Foster holds to the contrary.

Defendant makes no contention herein that Poe is a public figure, but asserts that as a matter of law he is a public official. The summary judgment proof wholly fails to establish as a matter of law that Poe is a public official. There is nothing in the summary judgment proof to establish that Poe is a “public figure” as that term is used in libel suits. The trial court erred in holding that Poe was a public official.

Relying on its contention that Poe is a public official, defendant asserts that the publication involved is privileged under the provisions of Article 5432, Texas Revised Civil Statutes. The pertinent part of such Article relied on by defendant reads as follows:

The publication of the following matters by any newspapers or periodicals shall be deemed privileged and shall not be made the basis of any action for libel:
4. A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.

Having failed to establish that Poe was a public official as a matter of law, defendant’s burden of establishing that the publication was privileged is considerably more onerous. Under these circumstances it was not incumbent upon plaintiff to prove malice or negate the matter of privilege. To the contrary, it was defendant’s burden to establish the privilege relied on by it as a matter of law.

The act or conduct which Poe was charged with in the publication involved is a criminal act subject to punishment by imprisonment. To charge one falsely with the commission of any crime for which he may be punished by imprisonment is slander or libel per se. Christy v. Stauffer Publications, Inc., 437 S.W.2d 814 (Tex.1969); Democrat Publishing Co. v. Jones, 83 Tex. 302, 18 S.W. 652 (1892); Houston Chronicle Publishing Co. v. Flowers, 413 S.W.2d 435 (Tex.Civ.App. — Beaumont 1967, no writ); Hornby v. Hunter, 385 S.W.2d 473 (Tex.Civ.App. — Corpus Christi 1964, no writ); Davila v. Caller-Times Publishing Co., 311 S.W.2d 945 (Tex.Civ.App. — San Antonio 1958, no writ); Houston Chronicle Publishing Co. v. Bowen, 182 S.W. 61 (Tex.Civ.App. — Galveston 1915, writ ref’d).

Christy discusses Article 5432 in relation to a person allegedly libeled who was not a public official. See also Bell Publishing Co. v. Garrett Engineering Co., 141 Tex. 51, 170 S.W.2d 197 (1943); Gibler v. Houston Post Co., 310 S.W.2d 377 (Tex.Civ.App. — Houston 1958, writ ref’d n. r. e.).

The summary judgment evidence does not establish either an absolute or conditional privilege as a matter of law.

Defendant also asserts that the summary judgment is proper because the article did not name Poe. We do not agree. Poe is not necessarily precluded from recovery because he was not named in the publication here involved. Our courts have held that in an action for libel the asserted libel must refer to some ascertainable person and that person must be plaintiff: Nevertheless, these courts have also held that it is not necessary for the individual alluded to be named if those who knew and were acquainted with the plaintiff understood from reading the publication that it referred to plaintiff. Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 894 (1960); Gibler v. Houston Post Co., supra; Red River Valley Publishing Co. v. Bridges, 254 S.W.2d 854 (Tex.Civ.App. — Dallas 1953, writ ref’d n. r. e.). Gibler cites a number of cases so holding and cites with approval from Prosser on Torts, 2d Ed., p. 583, wherein it is stated:

A publication may clearly be defamatory as to somebody, and yet on its face make no reference to the individual plainT tiff * * * He need not, of course, be named and the reference may be an indirect one; and it is not necessary that every listener understand it, so long as there are some who reasonably do.

It is clear from the summary judgment evidence that a number of persons including some of Poe’s acquaintances, friends, students and school officials would have deduced that the publication referred to Poe and actually did so.

Under the holding in Gertz and Foster, a negligence standard was applicable in this libel case. The matter of negligence is ordinarily a question of fact. Defendant’s summary judgment evidence does not particularly address the matter of negligence. There are conflicts in evidence pertaining to the thoroughness of the newspaper’s investigation and other circumstances in evidence placing some question on the accuracy or credibility of some of the matters alleged. In any event, the summary judgment evidence does not establish the absence of negligence as matter of law.

While defendant contends plaintiff suffered no damages, or, at the best, nominal damages, plaintiff’s pleadings allege various elements of damages including damage to reputation, suspension as a teacher for a period of time, inability to get and hold a job, extreme trauma and interference with his employment contract. The summary judgment evidence at least raises disputed fact issues as to some elements of damages.

The evidence is sufficient to present a fact issue as to some elements of damages and the summary judgment evidence does not establish the total absence of any damages as a matter of law.

Defendant failed to meet its summary judgment burden of establishing: (a) that Poe was a public official; (b) the truth of the statements contained in the publication; (c) the absence of any malice; (d) that the publication was privileged; (e) the absence of any negligence; and (f) the total absence of any damages.

We have concluded that because of the errors hereinbefore enumerated and discussed, this case must be reversed.

The judgment is reversed, and the case remanded to the trial court for a new trial.

OPINION

KLINGEMAN, Justice.

Defendant San Antonio Express-News Corporation’s motion for rehearing is overruled. Rupert J. Murdoch’s motion for rehearing is granted, and our opinion of September 19, 1979, is changed by deleting Footnote # 1 and substituting in lieu thereof a new Footnote # 1, as follows:

1. Prior to the trial Rupert J. Murdoch made a special appearance under Rule 120(a) of the Texas Rules of Civil Procedure, contending that he should be dismissed for want of jurisdiction. Murdoch’s pleading for such motion is verified and asserts that he is not a resident of Texas, is not engaged in business in Texas, and has committed no tort in Texas. On March 20, 1978, the trial court entered judgment reciting that after hearing the evidence and argument of counsel it is of the opinion that Murdoch’s plea to the jurisdiction is good and should be granted, and Murdoch is dismissed as a party defendant. Plaintiff’s Point of Error # 13 asserts that the trial court erred in holding that Texas courts have no jurisdiction over Rupert J. Murdoch. Plaintiff made no request for findings of fact and brought forward no statement of facts with regard to the hearing on Murdoch’s motion. Under such circumstances we must assume that sufficient evidence was introduced to support the ruling of the trial court. See Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363-65 (1945); Zemke v. Stevens, 494 S.W.2d 227 (Tex.Civ.App. — Eastland 1973, no writ); Rogers v. Thompson, 554 S.W.2d 803 (Tex.Civ.App. — San Antonio 1977, no writ). Plaintiff’s Point of Error # 13 is overruled. The trial court’s judgment dismissing Murdoch as a party defendant is affirmed. All reference in this opinion to “defendant” means San Antonio Express-News Corporation and does not include or refer to Rupert J. Murdoch.

In all other things, our opinion of September 19, 1979, is unchanged and remains as originally written.

      . Prior to the trial, Murdoch made a special appearance under Rule 120a, contending he should be dismissed for want of jurisdiction, and an order to that effect was entered on March 20, 1978.

      . Foster was a duly elected county surveyor of Webb County and his name had appeared on the ballot on numerous occasions. He also was a consulting engineer engaged in private practice and had been employed by Webb County as a private consulting engineer to perform specific projects for which he was paid. One such project involved investigation by Foster of a flooding problem in a subdivision known as Del Mar. The Laredo Times published an article on the flooding problem making certain references to Foster, some of which were incorrect. The Supreme Court of Texas pointed out that the initial and crucial question was whether the court of civil appeals correctly classified Foster as a public official or public figure. In reversing this court, the Supreme Court of Texas discussed in some detail the question of who can be characterized as a public official or public figure in defamatory suits.- It held that the summary judgment evidence failed to establish that Foster was either a public official or public figure, and declined to extend the New York Times standard to actions by private individuals seeking to recover compensation for actual injuries adopting an ordinary negligence standard in defamatory actions by private individuals such as Foster.

      . For late expressions by the United Supreme Court on the question of “public official” or “public figure,” see Hutchinson v. Proxmire, - U.S. -, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), and Wolston v. Reader’s Digest Ass'n, Inc.,-U.S. -, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979).
      In Proxmire, the Court held that a United States Senator’s press release and newsletters were not protected under Constitution’s speech or debate clause, and that the scientist was not a public figure. Hutchinson, a research behavioral scientist who had received funds from federal agencies to investigate the behavioral patterns of animals, brought a suit for defamation against Senator Proxmire and his aide arising from the Senator’s giving his “Golden Fleece of the Month Award” for egregious and wasteful government spending to the federal agencies that had funded the scientist’s work. The award was announced by the Senator in a speech prepared with the help of his aide, part of which was later incorporated in a widely distributed press release. The District Court granted summary judgment to defendants holding, among other things, that (1) the speech or debate clause of the U. S. Constitution pertaining to members of Congress afforded absolute immunity for the press release covering the speech; (2) Hutchinson was a public official and public figure with respect to the First Amendment rule requiring proof in a defamation suit that the alleged defamation was made with actual malice as a prerequisite to recovery. The U.S. Court of Appeals affirmed the judgment of the District Court without passing on the question of whether plaintiff was a public official, but held that the scientist was a public figure with respect to the First Amendment rule. On certiorari, the U. S. Supreme Court reversed and remanded. In its opinion the Supreme Court did not pass on the question of whether Hutchinson was a public official. However, it did note that for the purpose of the rule required under the First and Fourteenth Amendments, which prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves the statement was made with actual malice, not all public employees are included within the category of “public official.” The Court held that Hutchinson did not qualify as a “public figure” with respect to the First Amendment rule regarding a defamation action by a “public figure,” notwithstanding that local newspapers had reported his successful application for federal funds and that newspapers and wire services had reported his response to the Senator’s announcement of the Golden Fleece Award. In its opinion, the Court stated: “Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” - U.S. at -, 99 S.Ct. at 2688, 61 L.Ed.2d, supra, at 431.
      In Wolston, the Supreme Court held that a defamation plaintiff who pled guilty to contempt for non-appearance before a grand jury investigating espionage activities, was not a “public figure” for purposes of his suit over a book identifying him as a Soviet agent indicted for espionage. Wolston brought an action for defamation against the author and publishers of the book in the United States District Court for the District of Columbia, contending that passages in the book stating that he had been indicted for espionage and had been a Soviet agent were false and defamatory. The District Court granted the defendant’s motion for summary judgment, holding that Wolston was a “public figure,” who under the First Amendment rule for defamation actions had to prove that defendants published a defamatory falsehood with actual malice. The United States Circuit Court of Appeals for the District of Columbia affirmed.

        On certiorari, the United States Supreme Court reversed, holding that a person who engages in criminal conduct does not automatically become a “public figure” within the meaning of the First Amendment rule pertaining to defamatory actions for purposes of comment on a limited range of issues relating to his conviction, and that the defamation plaintiff, Wolston, was not a “public figure” in the case at bar.

        Proxmire and Wolston are important as exemplifying the recent trends of courts, including the United States Supreme Court, in modifying the rigid rules as to what constitutes a “public official”' or “public figure” in defamation suits against the news media and in sanctioning a less stringent standard than the New York Times standard in suits against publishers of defamatory statements relating to matters of public and general concern. This standard is particularly applicable to a person who (a) may be a governmental employee or may receive government grants or other benefits from governmental agencies; (b) may even be an elected official (Foster); (c) has not attained such prominence that he is a “public figure” for all purposes; and (d) has received some publicity in the news media, or whose access to such publicity came after the alleged libel.

      . At the time of the publication involved, Poe was not under arrest nor had he been charged by any law enforcement authorities with any type of criminal offense. Subsequently, he was indicted by the Grand Jury for the commission of a criminal offense, and thereafter he was tried for said offense and found not guilty by the jury. Plaintiff contended in the trial court and here asserts that Paul Thompson, the columnist who wrote the article involved, was instrumental in and in part responsible for the matter being brought before the Grand Jury, and plaintiffs pleadings alleged causes of action of malicious prosecution and abuse of process. Thompson in his deposition states that he called the District Attorney of Bexar County and obtained a commitment that the matter would be submitted to the Grand Jury. The article involved closes with this statement: “Bringing both young ladies and the high school teacher in front of the Bexar County grand jury to tell their stories in full has to be the best and only solution now. And Dist. Atty. Ted Butler has indicated that is precisely what he and his aides aim to do. Promptly. Forcibly. With all the stops out.”

      . Defendant makes some contention that plaintiff did not plead negligence. While plaintiffs pleadings in this connection are somewhat general, it is apparent from the pleadings as a whole that acts of negligence are alleged, including the allegations that defendant recklessly, willfully, and with disregard of the rights of plaintiff and without any semblance of proper and sufficient investigation printed and published in its newspaper the defamatory article' which is the basis of this suit; that a reasonable and proper investigation made by defendant would have revealed the falsity of such statements; that a fair and reasonable investigation was never made to determine whether such statements were true or false; and, that such article was published and circulated with recklessness and carelessness and with a wanton disregard of the rights of plaintiff.


author: COLEMAN, Chief Justice.

text:
    D. B. BUTLER, M.D., Appellant, v. Mary MORGAN and John Holloway, Appellees.
    No. 17452.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Sept. 20, 1979.
    Rehearing Denied Oct. 25, 1979.

      Thomas R. Beech, Houston, for appellant.
    Max H. Jennings, Houston, for appellee.
    Before COLEMAN, C. J., and WALLACE and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is a suit for the damage resulting from the alleged malicious prosecution of a civil suit. The case was dismissed on motion of the defendants and this appeal resulted. Affirmed.

Mary Morgan filed a medical malpractice suit against Doctor Donald B. Butler, and others, which proceeded to trial and resulted in a judgment in favor of all of the defendants. Thereafter, Doctor Butler filed this suit for damages asserting a cause of action based on malicious prosecution. When this case came on for trial, prior to the selection of the jury, a hearing was held on a pleading entitled “plea to jurisdiction, plea in abatement, plea of limitations, special exception, and revival of summary judgment pleading.” At the conclusion of this hearing the trial court entered an order which recited that the court “ — is of the opinion that the cause of action of malicious prosecution requires actual interference with the defendant’s person (such as an arrest or detention) or property (such as an attachment, an appointment of a receiver, a writ of replevin, or an injunction) and that the plaintiffs’ first amended petition failed to allege such interference.” The court then ordered that “such pleas” be sustained and that the suit be dismissed.

The appellant relies on a single point of error asserting that the trial court erred in dismissing Doctor Butler’s suit on the ground that it failed to allege actual interference with the person or property of Dr. Butler. Appellant has not argued that the case should be remanded for the purpose of permitting the petition to be amended to assert additional elements of damage which would constitute shch interference. The judgment entered was approved by the attorney for Dr. Butler.

It is well established that one of the essential elements which must be pleaded and proved for recovery based on malicious prosecution is that the plaintiff has suffered damages conforming to legal standards under Texas law. Morris v. Taylor, 353 S.W.2d 956 (Tex.Civ.App.-Austin 1962, writ ref. n. r. e.).

The plaintiff alleged that he suffered injury to his personal and professional reputation as a surgeon and physician, personal humiliation, mental anguish and distress. He asserted that he had been damaged in his practice of medicine, which depends largely upon referrals from other physicians, and that he was forced to neglect his professional practice to his damage. He asserted that his professional malpractice insurance had been cancelled as a result of this malpractice suit and that his insurance premiums had been increased, caused at least in part by the filing of this suit.

The rule is firmly established in Texas which denies an award of damages for the prosecution of civil suits, with malice and without probable cause, unless the party sued suffers some interference, by reason of the suit, with his person or property. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (Tex. 1920). The Supreme Court cited three early cases by the Supreme Court of Texas in support of this rule. In Smith v. Adams, 27 Tex. 28 (1863) the court asserted that no one can claim a legal exemption from suit by another who fancies he has a cause of action against him, however unfounded the claim may be in justice and law. The court then added: “had the suit been for the wrongful suing out of the writ of sequestration or attachment, by which the defendant’s property was seized and he sustained damage, the action might have been maintained.”

In Salado College v. Davis, 47 Tex. 131, 136 (1877), the court said: “this was an ordinary civil suit, in which no extraordinary process was sued out, and if the indirect effect of the suit was to interfere with the sale of the property which was to some extent the subject matter of litigation, this is not such an injury as the law regards or makes actionable.”

In Johnson v. King and Davidson, 64 Tex. 226 (1885) the court seems to have answered “no” to a question which it propounded at page 229: “can an action be sustained for the bringing of a civil action by anyone, in his own right, for the purpose of enforcing a claim, real or unfounded, unless by the abuse of some process the person or property of the defendant be seized or in some other manner seriously effected?”

The mere filing of a civil suit resulting in damage to the defendant is not such an interference with the person or property of the defendant in the suit as will support an action for malicious prosecution. The damage which the plaintiff has alleged he suffered flowed, directly or indirectly, from the fact that the suit was filed. The plaintiff did not allege damage “conforming to legal standards under Texas Law.” Smart v. Carlton, 557 S.W.2d 553 (Tex.Civ. App.-Beaumont 1977, writ ref. n. r. e.); Louis v. Blalock, 543 S.W.2d 715 (Tex.Civ.App.-Amarillo 1976, writ ref. n. r. e.); Moiel v. Sandlin, 571 S.W.2d 567 (Tex.Civ.App.-Corpus Christi 1978, no writ); Martin v. Trevino, 578 S.W.2d 763 (Tex.Civ.App.-Corpus Christi 1978, writ ref. n. r. e.).

The judgment is affirmed.