text:
    Mario CANTU, Bruno Escamilla and Cresencio Gutierrez, Appellants, v. Benjamin SAMPLES et al., Appellees.
    No. 16169.
    Court of Civil Appeals of Texas, San Antonio.
    April 11, 1979.
    Rehearing Denied May 9, 1979.
    Edward Camara, Jr., Peter Torres, Jr., San Antonio, for appellants.
    Jane H. Macon, City Atty., Jake N. Talley, Jr., Asst. City Atty., San Antonio, for appellees.
   OPINION

MURRAY, Justice.

Appellants, Mario Cantu, Bruno Escamil-la, and Cresencio Gutierrez, brought this suit against the City of San Antonio, a judge and clerk of one of its municipal courts, and others for a writ of mandamus to compel appellees to use the jury wheel for the selection of jurors in the municipal courts of San Antonio. Appellants also seek an injunction to enjoin the municipal courts of San Antonio from bringing appellants to trial until the jury wheel method of selecting jurors is instituted. The trial court denied the relief sought, and appellants perfected their appeal to this court.

On August 1, 1978, appellants were arrested while attempting to erect a tent on the lawn in front of the San Antonio City Hall. Appellants engaged in this activity to support the efforts of the San Antonio Refuse Collectors Association to negotiate a new contract with the City of San Antonio. Appellant, Mario Cantu, was charged with the offense of simple assault, and appellants, Bruno Escamilla and Cresencio Gutierrez, were charged with the offense of obstructing police.

The basis of appellants’ suit is to challenge the jury selection system in the municipal courts of the City of San Antonio. Appellants contend that the municipal courts of San Antonio must comply with the Jury Wheel Law, Tex. Rev. Civ. Stat. Ann. arts. 2094-2100a (Vernon 1964).

Article 33.09 of the Code of Criminal Procedure provides:

Jury panels, including special venires, for the trial of criminal cases shall be selected and summoned (with return on summons) in the same manner as the selection of panels for the trial of civil cases, except as otherwise provided in this code.

Tex. Code Crim. Pro. Ann. art. 33.09 (Vernon 1966). The Jury Wheel Law governs the selection of jurors for the trial of civil cases in the district and county courts. Article .2414, Texas Revised Civil Statutes, provides for juries in the justice of the peace court to be summoned orally by the proper officer. Therefore, Article 33.09 authorizes jury panels for the trial of criminal cases to be selected by the jury wheel method as provided by Articles 2094-2100a or by the “pick-up” jury method as provided by Article 2414.

Chapter 45 of the Code of Criminal Procedure pertains to the justice and municipal courts, and Article 45.25 of that Code provides:

If the accused does not waive a trial by jury, the justice shall issue a writ commanding the proper officer to summon forth with a venire from which six qualified persons shall be selected to serve as jurors in the ease. Said jurors when so summoned shall remain in attendance as jurors in all cases that may come up for hearing until discharged by the court. Any person so summoned who fails to attend may be fined not exceeding $20 for contempt.

Tex. Code Crim. Pro. Ann. art. 45.25 (Vernon 1979). This article specifically provides for “pick-up” juries for the trial of criminal cases in justice of the peace and municipal courts.

We hold that, in the absence of special legislation, the Jury Wheel Law does not govern the selection of jurors in the municipal courts of the City of San Antonio. Our holding on this point makes it unnecessary to discuss the other points raised by appellants in their brief.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    WALKER CREEK HOMEOWNERS ASSOCIATION OF ELLIS COUNTY, Texas, Appellant, v. TEXAS DEPARTMENT OF HEALTH RESOURCES et al., Appellees.
    No. 12934.
    Court of Civil Appeals of Texas, Austin.
    April 11, 1979.

      Guy C. Fisher, Austin, for appellant.
    John L. Hill, Atty. Gen., Richard W. Low-erre, Asst. Atty. Gen., Austin, for Texas Dept, of Health.
    Robert H. Lloyd, Paul G. Gosselink, Booth, Lloyd & Simmons, Austin, for City of Ennis.
   PHILLIPS, Chief Justice.

This suit was brought by the Walker Creek Homeowners Association of Ellis County, Texas, to set aside an order of the Texas Department of Health Resources, now the Texas Department of Health, granting a permit to the City of Ennis to operate a sanitary landfill some 2.7 miles from the city. The trial court rendered judgment upholding the order.

In June of 1976, the City of Ennis filed an application to operate a solid waste disposal site in Ellis County. The application was processed in accordance with the Solid Waste Disposal Act and the rules of the Department.

Pursuant to the statute and following notice, a public hearing was held in August of 1976, and the permit was issued the following October. Several parties filed motions for rehearing, which were granted, and a second hearing was held in February of 1977. Pursuant to this second hearing a new permit was issued to the City of Ennis in June of 1977.

This case is controlled by appellant’s fourth point of error; therefore, we do not reach the other points. Appellant contends that the Department’s order granting ap-pellee’s permit was not final and not reviewable. The basis for this contention is that certain conditions are imposed in the permit in two pages entitled “Special Provisions For Municipal Solid Waste Permit No. 947.”

The permittee is required to “. properly close and plug all existing water wells” in accordance with appropriate agency rules. Appellee shall also “complete and submit a plugging report within sixty (60) days after the date of this permit. . All plugging operations shall be tested by the party performing the operations in order to insure compliance with the provisions of the above-mentioned Rule.”

Next, the permittee “shall provide to the Department a certificate from a registered professional engineer that testing by a soils laboratory of soil layers, in their undisturbed, natural, or original condition, that will form the bottom and sides of such excavation has been performed and lining provided where necessary.”

The permit also prescribes that “[w]hen disposal operations are completed and/or before abandonment of the site, the disposal area shall be completely and properly closed in accordance with the regulations” of the Department.

Appellant does not contend that any of the foregoing conditions make the agency’s order interlocutory. Appellant’s contention is that the following condition alone renders the order interlocutory.

“Access: Before this site becomes operational, the permittee shall submit to, and obtain approval from, the Department a site access plan indicating the capability of the said permittee to construct and maintain an all-weather access road from the site entrance to an existing public road which will provide access to the site. The said all-weather access road shall be provided in accordance with the requirements of [agency regulations].”
We agree.

An administrative order must leave nothing open to dispute in order to be a final order. Payne v. Texas Water Quality Board, 483 S.W.2d 63 (Tex.Civ.App.1972, no writ); City of Houston v. Turner, 355 S.W.2d 263 (Tex.Civ.App.1962, no writ); Allen v. Crane, 257 S.W.2d 357 (Tex.Civ.App. 1953, writ ref'd ri. r. e.). “So long as matters remain open, unfinished or inconclusive, there is no final decision.” Id. at 358.

Undoubtedly agencies may set certain conditions in a permit which must be satisfied before operation under the permit may commence. The legislature recognized this as evidenced by section 4(e)(2) of the Solid Waste Disposal Act. It provides that “[t]he permit shall include . . . the terms and conditions on which the permit is issued, including the duration of the permit.” (Emphasis added). The first conditions quoted from the City’s permit are examples. The permit was issued subject to those conditions, and if not met the Department may act to cancel or revoke the permit. These conditions do not involve any discretion on the part of the agency.

It is also obvious, however, that there is a limit on the extent to which an agency may impose conditions and still have issued a final order. The condition on access, unlike the other “Special Provisions,” is not merely a self-reporting requirement, as appellee City of Ennis argues. It requires that the City “obtain approval” of its site access plan. This concerns the City’s ability to construct and maintain a satisfactory access road, a matter which is still open to question.

This aspect of the condition on access is not to be confused with the fact that the City still has to acquire legal title to the roadway. The Department could issue a final permit subject to permittee obtaining title to the land in question.

The Department’s condition is not limited, however, to requiring proof that the City has acquired legal title to the roadway. The City is required to bring forward a “site access plan” and have it approved. The language itself indicates that the Department has not already approved any access plan. Although the subject was discussed at the hearing, there is nothing to indicate the Department approved a plan. It is unclear what the plan is intended to encompass, but it may include such considerations as beautification of the roadway, reduction of traffic hazards, or the City’s financial ability to maintain the road. At any rate, approval of the plan will be a process in which appellant has a great interest and right to participate. We hold, therefore, the granting of the permit was not a final order.

The judgment of the trial court is vacated and the cause is dismissed, leaving this matter pending before the Texas Department of Health for final disposition.

Judgment Vacated and Cause Dismissed.

      . Tex.Rev.Civ.Stat. Ann. art. 4477-7 (Supp. 1978).

      . Texas Dept, of Health Resources, Rules 301.-75.03001.010 (1976).


author: JAMES, Justice.

text:
    Donald R. BYRD et al., Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 6010.
    Court of Civil Appeals of Texas, Waco.
    April 12, 1979.

      Stephen J. Cavanaugh, Bellaire, for appellants.
    Michael Dorman, Liddell, Sapp, Zivley & Brown, Houston, for appellee.
   OPINION

JAMES, Justice.

This suit arises out of the repossession and sale of an automobile. Plaintiff-Appellants Donald R. Byrd (hereinafter called, “Byrd Sr.”) and Donald R. Byrd II (hereinafter called “Byrd II”) brought this action against Defendant-Appellee General Motors Acceptance Corporation (hereinafter called “GMAC”) for damages resulting from allegedly improper notification of the sale of their automobile after default, and for allegedly conducting the sale of the repossessed vehicle in a commercially unreasonable manner within the meaning of Section 9.507, Texas Business and Commerce Code.

Plaintiffs, a father and son, originally purchased the car in question, to wit, a 1976 Chevrolet Monte Carlo, from Chuck Davis Chevrolet, Inc. in Houston, Texas, and Defendant GMAC financed it under a Retail Installment Contract dated September 26, 1975. The automobile was repossessed by GMAC on June 8, 1976, and at the time of repossession Plaintiffs were admittedly in default on the Retail Installment Contract for the months of April and May, 1976.

Trial was had to a jury which found (or failed to find, as herein indicated) in answer to special issues as follows:

(1) Failed to find that GMAC did not send notification to Byrd Sr. of the time and place of the public sale of the car on July 2, 1976. In other words, the jury’s answer to this issue was, “GMAC did send notification” (to Byrd Sr.).

(2) Failed to find that the notification inquired about in Special Issue No. 1 was unreasonable.

(3) Failed to find that GMAC did not send notification to Byrd II of the time and place of the public sale of the car on July 2, 1976. That is to say, the jury’s answer to this issue was, “GMAC did send notification” (to Byrd II).

(4) Found that the notification to Byrd II was unreasonable.

(5) Failed to find that GMAC’s disposition of the car was commercially unreasonable.

Defendant GMAC filed a motion for judgment notwithstanding the verdict, asserting the jury’s answer to Special Issue No. 4 (that the notification to Byrd II was unreasonable) should be disregarded, contending there is no evidence to support such finding and the evidence conclusively establishes as a matter of law that the notice sent to Byrd II was reasonable.

The trial court sustained Defendant GMAC’s motion for judgment NOV and accordingly entered judgment that Plaintiffs Byrd Sr. and Byrd II take nothing, from which Plaintiffs appeal upon three points of error.

Plaintiff-Appellants contend in their first point of error that the trial court erred in granting Defendant-Appellee’s motion for judgment NOV because (they say) there was evidence of probative value to support the jury’s answer to Special Issue No. 4. We do not agree. As stated before, on June 8, 1976, GMAC repossessed the car at a time when the monthly payments due on the Retail Installment Contract for the months of April 1976 and May 1976 were in default.

GMAC mailed two notices each to Byrd Sr. and Byrd II, all by letters dated June 18, 1976, one of which letters to Byrd Sr. was by regular mail, postage prepaid, and the other of which was by certified mail, return receipt requested. The same was done insofar as Byrd II was concerned; that is to say, that GMAC likewise mailed one letter to Byrd II by regular mail, postage prepaid, and one by certified mail. The certified letters to Byrd Sr. and Byrd II were couched in the same language, notifying them that it had become necessary to repossess the car, and that they might become liable for a deficiency resulting from the sale of the car, and suggesting that they contact a Mr. Gerald Cooper, an employee of GMAC, to discuss the account. The letters sent by regular mail each to Byrd Sr. and Byrd II were in identical language (except for the addressees), and itemized the charges against the car totalling $5177.85, advising them they could redeem the car by paying this amount anytime prior to the sale, and further informed them that unless the car was sooner redeemed, that it would be sold at public sale at 2 o’clock P.M. on July 2, 1976, at GMAC’s office which was shown to be located at 7015 Gulf Freeway, Houston, Texas. Said letter further informed them of the location where the car was stored at that time.

Byrd Sr. and Byrd II both testified that they never received any of the four letters that were sent. However, neither of the two letters sent by regular mail ever came back to GMAC. Although Byrd Sr. testified he never received either the letter sent by regular mail or the certified letter addressed to him, at his address, a return receipt card with his name signed to it was offered in evidence by GMAC showing the letter was delivered to him on June 22, 1976. Byrd Sr. never denied his signature or offered any explanation concerning the return receipt card.

With reference to Byrd II, he testified he never received either the certified letter or the letter, sent to him by regular mail. The letter sent to him by regular mail never came back to GMAC. Proof shows the certified letter addressed to Byrd II at his proper address was postmarked June 21, 1976. Moreover, the evidence shows Byrd II was given two notices by the Post Office Department notifying him he had a certified letter, one notice dated June 22, 1976, and the other June 29, 1976, but that he never picked up this letter, and said letter was returned to GMAC with the notation, “unclaimed” on the envelope. Said envelope had a notation, “notified,” written on it just above Byrd II’s name and address. Byrd II never offered any explanation as to why he never did answer either of the two notices, and never did pick up his certified letter.

The sale of the car was held at the time and place set out in the letters above referred to.

Since the jury found in answer to Special Issue No. 4 that the notification to Byrd II of the public sale was unreasonable, the trial court could properly disregard the jury’s answer to Special Issue No. 4 only in the event that the evidence conclusively establishes the contrary to such jury’s answer. Therefore, the specific question we must answer is this: Does the evidence conclusively establish that the notification to Byrd II was reasonable? We believe that it does.

Section 9.504, Texas Business and Commerce Code, obligates a secured party to send reasonable notification of the time and place of any public sale of repossessed collateral. This obligation is set forth in the following language of Section 9.504:

“Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale . . . shall be sent by the secured party to the debtor . . In the case of consumer goods no other notification need be sent.” (emphasis supplied).

Section 1.102, Tex.Bus. & Comm.Code, specifically provides that parties may by agreement determine the standards by which performance of the obligation to give “reasonable notice” is to be measured, so long as such standards are not “manifestly unreasonable.” Taylor v. Banks (Tex.1965) 392 S.W.2d 856.

In the case at bar, the Retail Installment Contract under which the Plaintiffs purchased the subject automobile specifically provides how GMAC’s obligation to give “reasonable notification” of the time and place of any public sale shall be satisfied. In the third paragraph of the “Additional Terms” set forth in the Contract, it is specifically provided:

“The requirement of reasonable notification of the time and place of any public or private sale or other intended disposition shall be met if notice thereof is mailed, postage prepaid, to the buyer and any other person entitled thereto ten (10) days prior to such sale or other disposition of the property.” (emphasis supplied).

There is no evidence that Defendant GMAC did not comply with the contract. In fact, the evidence conclusively shows that GMAC mailed, postage prepaid, the notices to both Byrd Sr. and Byrd II more than ten days prior to the sale. The uncon-tradicted evidence established as a matter of law that GMAC complied with the above contractual provisions. Appellants’ first point is therefore overruled.

Appellants further contend that the jury’s answer to Special Issue No. 5 is so against the great weight and preponderance of the evidence as to be manifestly, wrong and unjust, under the rule laid down by our Supreme Court in In re King’s Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660. In answer to Special Issue No. 5, the jury failed to find that GMAC’s disposition of the automobile was “commercially unreasonable.” We have carefully studied the entire record, and particularly so concerning this point of error, as we are obliged to do; and without detailing the evidence, suffice it to say that the jury’s answer to Special Issue No. 5 is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Accordingly, this point of error is overruled.

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

Judgment of the trial court is affirmed.

AFFIRMED.


author: NYE, Chief Justice.

text:
    McALLEN COCA COLA BOTTLING COMPANY, INC., Appellant, v. Maria Natividad ALVAREZ, Appellee.
    No. 1402.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 12, 1979.
    On Remittitur April 26, 1979.

      Mike Mills, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellant.
    James S. Bates, Bates & Hendrix, Edin-burg, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit for damages brought by Maria Alvarez against the McAllen Coca Cola Bottling Company, allegedly as a result of the plaintiff drinking a portion of the contents of a Coca Cola bottle in which there was wedged a hairpin. The case was tried to a jury, and based on the verdict, the trial court entered judgment for the plaintiff for pain and mental anguish in the sum of $30,000.00 and for medical expenses in the amount of $12.00. Defendant McAllen Coca Cola Bottling Company has perfected its appeal to this Court.

The evidence showed that the plaintiff was a teacher’s aide, and while she was at the Zavala Elementary School in McAllen, Texas, eating her lunch, she drank a Coca Cola which contained the hairpin wedged in the bottle. Plaintiff became immediately ill and regurgitated, but thereafter remained at work during the rest of the day. That night she became violently ill and had to be taken to the emergency room of the McAllen General Hospital where she was treated by a physician. She was released from the hospital the same night. She lost the next two days of work, complaining of diarrhea, nausea, cramps and headaches. Other witnesses testified that plaintiff Alvarez had a violent reaction every time the word “Coke” was mentioned. Mrs. Alvarez testified that the family cannot have Coca Cola in the house because of the violent effect that it has on her every time the word “Coke” is mentioned. She testified finally that she still receives a reaction, four years after the incident, every time there is a mention of the word “Coke” to her.

The appellant complains primarily of the excessiveness of the jury’s award. Its first point of error, however, is directed toward jury misconduct. The trial judge, on the filing of the amended motion for new trial duly supported by affidavits of several jurors, conducted a hearing on the question of jury misconduct. Four of the twelve jurors testified at the motion for new trial hearing.

The first juror, Jesse Carrillo, Jr., testified that the amount of attorneys fees which plaintiff would be charged by her attorney was discussed in the jury room before the entire jury. Juror Carrillo testified that there was a discussion to the effect that 33% or 45% of any award made to the plaintiff would go to her attorney. Carrillo also testified that one of the jurors, who was an orderly or a nurse at a hospital related to the jurors that it could not have been the lunch (potted meat) that plaintiff had eaten during her lunch that caused her illness, because it takes four hours to digest food. Carrillo also stated that there was a discussion as to the size of the defendant corporation. He stated that one juror said: “. . . since it was such a big corporation $30,000.00 or $60,000.00 wouldn’t affect them at all.” Carrillo was the one juror who did not sign the verdict.

Juror Felipe Cortez also testified that attorney fees were discussed but he could not remember the percentage or fractions mentioned. He testified that the discussion of attorney fees was not made before the entire jury, but just before a few jurors, “between a couple of us.”

Juror Omar Garcia testified that attorney fees were discussed by the jurors to the effect that, “We just discussed the amount that it was too much money split in half .”, and, question: “. . . that was discussed in front of the entire jury?” Answer: “Right.”

Juror Roel Garza testified that plaintiff’s attorney would receive around $15,000.00 or $20,000.00 and that this was discussed in front of the entire jury.

The effect of jury misconduct must be determined in light of Rule 327, T.R.C.P. This rule directs the trial court to inquire as to whether or not, as a matter of fact, jury misconduct occurred. If misconduct is proved from the record as a whole, it then must be determined before a reversal is justified, if such misconduct was material and that probable injury resulted to the complaining party. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.Sup.1969). It has long been the rule of law that jurors must not be permitted to become secret witnesses in the jury room by testifying and attempting to influence their peers with evidence that did not come from the mouths of sworn witnesses during the course of the trial. Central Power & Light Company v. Freeman, 431 S.W.2d 897 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.). A discussion of attorney fees and the amount that a plaintiff might be required to pay out of what he recovers is material misconduct, and such, if proved, is calculated to prejudice the rights of a defendant. White Cabs, et al. v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947).

To grant or deny a new trial on the basis of misconduct of a juror is to a large extent within the sound discretion of the trial court.. Its decision will not be disturbed unless it is erroneous. The question of whether or not misconduct occurred is one of fact to be determined by the trial court from the evidence at the motion for new trial as any other question of fact is to be determined. This rule will ordinarily be accepted as final when supported by the evidence or when the evidence thereon is conflicting. Where the trial judge overrules the motion for new trial on the ground of jury misconduct and does not make findings of fact, it will be presumed on appeal that the court made findings that were necessary to support its order.

The point in time during jury deliberations at which misconduct occurs is an important factor in determining the probability of injury. Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646 (1957); City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944). If such discussions were made after the amount of the damages had been determined by the jury, misconduct would be held to have been harmless. Although misconduct may have occurred during jury deliberation, Rule 327 expressly fixes the burden upon one complaining of misconduct to prove that “it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted.” Ross v. Texas Employers’ Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541 (1954). There was a conflict between the jurors’ statements as to whether or not the attorney fees were discussed before the entire jury or “between a couple of us.” In view of the trial court’s implied finding upon conflicting evidence and the lack of proof as to the point in time during jury deliberation at which the misconduct occurred, we cannot say that the trial court’s decision is palpably erroneous. See and compare Fountain v. Ferguson, 441 S.W.2d 506 (Tex.Sup.1969).

The next major contention of the appellant McAllen Coca Cola Bottling Company is that the jury’s finding of $30,000.00 for pain and mental anguish is excessive. The trial court overruled the defendant’s motion for new trial in which it asserted the verdict was manifestly excessive. The defendant says this was error. The defendant contends that such an award for several days of nausea, cramps and diarrhea followed by the inability to drink Coca Cola and an aversion to the mention of Coca Cola is grossly unfair. The defendant says the evidence shows that: the plaintiff returned to work on Monday following the Wednesday incident; she did not recall whether or not she had lost pay for the two days of work that she missed; there was no evidence on loss of pay; the plaintiff’s immediate supervisor testified that she did not notice any adverse effect on Mrs. Alvarez’s work; the plaintiff admitted that although she does not drink Coca Cola or eat potted meat, she does drink such soft drinks as Fresca, Fanta and strawberry; she admitted on cross-examination that she has seen no doctor for the effects from drinking from the bottle in question since the week of the occurrence; and the plaintiff’s total doctor bill equalled $12.00.

There is no certain standard by which personal injury damages can be measured. Each ease must stand on its own facts and circumstances and a comparison with other cases on amounts of verdicts found therein is of little or no help. Mental anguish is, however, a proper element for the awarding of damages in a personal injury suit. Anguish has been defined to be “intense pain of body or mind” and as “a high degree of mental suffering.” 17 Tex. Jur.2d, Damages, § 126, p. 192. It must be something more than worry and vexation, however. Plaintiff’s pain was limited to the first several days and the mental pain thereafter to when Coca Cola was mentioned.

In determining whether a verdict is excessive, all the elements of damages that the jury could have properly considered from the evidence must be examined. In passing on whether the verdict is excessive, we consider only the evidence in support of the award and view such evidence in the light most favorable to the jury’s award. We are aware of the cost of living and the purchase power of the dollar when making the determination of whether or not the amount of the verdict is excessive. The purpose of an award of damages is to provide just compensation for the injury determined. Reviewing the entire record in light of these rules, we find that the jury’s award of $30,000.00 was reached as a result of passion, prejudice or some other improper motive that made it so excessive as to shock the sense of justice and the conscience of this Court. It is for this reason and this reason only that we find that the case must be reversed and set aside unless a remittitur is filed for the excess amount. The appellant McAllen Coca Cola Bottling Company suggests that a $15,-000.00 remittitur would be proper. We agree.

We, therefore, hold that the amount of the jury’s award is excessive by the amount of $15,000.00. We hereby grant the plaintiff ten days from the date of this opinion to remit to this Court the sum of $15,000.00; otherwise the cause will be reversed and remanded for a new trial.

SUPPLEMENTAL OPINION ON THE FILING OF REMITTITUR

This Court has suggested that appellee remit the sum of $15,000.00 as set forth in the original opinion. The appellee, through her attorney, has filed a remittitur in the amount suggested by this Court.

Therefore, in accordance with the opinion of this Court heretofore announced, the judgment of the trial court is reformed to the extent of the amount hereby remitted by the appellee so that the amount of judgment against the appellant is reduced to the sum of $15,012.00.

The judgment of the trial court as herein reformed is hereby affirmed. Costs will be assessed 50% to each party.


author: McDONALD, Chief Justice.

text:
    Sarah Elizabeth SCOTT, et vir, Appellants, v. Arthur E. BISHOP et al., Appellees.
    No. 5990.
    Court of Civil Appeals of Texas, Waco.
    April 12, 1979.
    Rehearing Denied May 24, 1979.
    Douglas Riley, Jr., Dallas, for appellants.
    Larry F. Amerine and Rick W. Hightower, Biggers, Lloyd, Biggers, Beasley & Ame-rine, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Scott from a take-nothing judgment in suit to declare a warranty deed to be a mortgage; and to enforce an alleged option to repurchase thé property.

Plaintiffs Sarah Scott and husband sued defendants Arthur E. Bishop and son Arthur Patrick Bishop, alleging plaintiffs in 1940 acquired as their homestead a described house and lot in Dallas; that in 1959 plaintiffs borrowed money from Mitchell Cook, and in 1964 and 1970 they borrowed money from defendant Arthur E. Bishop, in all such instances pledging their homestead as collateral; that the transactions wherein the money was borrowed was accomplished by their giving a warranty deed to Cook in the first instance and to Arthur E. Bishop in the second and third instances; that the deeds did not operate to vest any title in the grantees other than a security interest in the property; that this method of borrowing money on a homestead has been used since the early days of the Republic; that in May 1970 they executed a deed to Arthur E. Bishop of the property for a total consideration of $11,551.86; that the property was worth $25,000. at such time; that Bishop has paid certain taxes and insurance, and plaintiffs have made payments to Bishop; that Bishop gave them a continuing option to repurchase the property; that in 1976 Arthur E. Bishop purported to convey the property to his son Arthur Patrick Bishop for $40,000.; that such purported sale is void; and that Arthur E. Bishop held the property as trustee for plaintiffs.

Plaintiffs prayed the deed be declared a mortgage; that the accounts of the parties be adjusted and reconciled and award be made of amounts owed either party; that the option given plaintiffs by Arthur E. Bishop to repurchase be enforced; and he be required to convey the property to plaintiffs.

Trial was to a jury which in answer to special issues found: 1) The 1970 deed from the Seotts to Arthur E. Bishop was not intended by the parties to secure the payment of the loan; 2) Plaintiffs Scott had an option to reacquire the property by purchasing from defendant Arthur E. Bishop; 3) There was no agreed date of termination of such option; 4) The property was worth $22,000. in 1970; 5) And was worth $40,000. in 1976.

Both parties moved for judgment on the verdict. The trial court denied plaintiffs’ motion; granted defendants’ motion; and rendered judgment plaintiffs take nothing.

Plaintiffs appeal on 9 points contending among other matters:

1) the trial court erred in not enforcing the option to reacquire the property by plaintiffs; that same was not within the prohibition of the Statute of Frauds because plaintiffs were in possession of the property; had paid all or part of the consideration; and had made valuable improvements upon the property.
2) the jury’s answer to Issue 1 is so against the great weight and preponderance of the evidence as to be clearly erroneous.

Plaintiffs acquired their homestead, the property here involved, in 1940, and occupied it continuously for 38 years including time of trial. Plaintiff Richard Scott testified that in 1959 he deeded his home to one Mitchell Cook to get a loan of $5,000.; that the deed was not to be a deed absolute; that in 1964 Cook deeded the property to “Southwestern Diversified,” at which time Scott borrowed $4,000. on the property from Southwestern. Southwestern was a partnership owned by Arthur E. Bishop and three others. The partnership terminated and Bishop acquired the property. Plaintiffs made monthly payments to Bishop. Plaintiff Scott testified he called Bishop in 1968 and told him he wanted “to pay off the debt”; that Bishop agreed; the accounts of the parties were adjusted and Scott paid Bishop some $3,500. additional, and Bishop deeded the property to Mrs. Scott. Bishop testified that there was an agreement the Seotts could purchase the property, and that he sold the property to them.

Plaintiff Scott testified that in May 1970 he called Bishop and told him he needed money; that they agreed on “the same deal as we had before”; that plaintiffs deeded the property to Bishop; that he received $5,000.; that Bishop assumed a loan on the property making total consideration to plaintiffs of about $11,500.

Bishop testified he bought the house for $12,500.; that he believed the house worth $18,000. or $19,000. at the time. The Seotts paid Bishop a $49.50 payment, $137.50 per month for 43 months; $187.50 per nfbnth for 25 months; and $225. per month after February 1976 (plaintiffs called these payments; Bishop called them rent), for a total of $14,474.50. Plaintiffs further paid $2,148.16 for repairs on the property, which Bishop knew about, plus $150.68 for taxes. Bishop paid all other taxes of $2,007.72 and insurance of $325. on the property. Scott testified he called Bishop in September 1976 and told him he wanted to settle up, pay the house off, and get it back; that Bishop said his records were at the Pawn Shop; that he would have to get them and let him know; that the next he heard from Bishop was a letter stating he no longer owned the property. Bishop had deeded the property to his son Arthur Patrick Bishop for $40,000., who gave plaintiffs notice to vacate.

The jury’s findings 2 and 3 are amply supported by Bishop’s testimony that plaintiffs had an agreement to purchase the property from him (which they did) in 1968; and plaintiff Scott’s testimony that Bishop agreed that the 1970 transaction would be “the same deal as we had before”. And the sale of property worth $18,000. to $22,000. for $11,500. without something further, makes the transaction suspect on its face.

In the prior transaction where the Scotts purchased the property from Bishop in 1968, the prior payments made by the Scotts to Bishop which were in excess of 10% interest on the money Bishop had paid for the property (or loaned on the property) plus taxes and insurance paid by Bishop, were counted as payments on the 1968 purchase by the Scotts, and Scott made an additional payoff to Bishop of $3,500.

Here the evidence reflects Bishop paid (or loaned on) $11,500. (or $12,500.) for (or on) the property in 1970 (plus $2,007.72 paid for taxes and $325. paid for insurance); that the Scotts have made $14,474.50 in payments to Bishop since 1970, which obviously some major portion of which was in excess of interest, taxes and insurance, and which was a part of the purchase price if “the deal was the same” as before.

Defendants assert the option being oral is prohibited by the Statute of Frauds.

It is undisputed plaintiffs paid $14,474.50; were in possession; and made $2,148.16 in improvements on the property.

The option became a contract of sale when, plaintiff accepted same by telling defendant “he wanted to settle up, pay the house off, and get it back”.

The terms of the contract of sale would be “the same deal we had before”, i. e., the price Bishop paid for the house in 1970 ($12,500.).

Possession, payment of the purchase price in full or in part, and valuable improvements take the oral option and contract out of the Statute of Frauds. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114; Walker v. Walker, Tex.Civ.App. (Waco) NRE, 448 S.W.2d 171.

Plaintiffs’ contentions supra are sustained and the cause is remanded.

REVERSED AND REMANDED.


author: DODSON, Justice.

text:
    Kerry L. JACKSON, Appellant, v. ASSOCIATED DEVELOPERS OF LUBBOCK and Don Osborne, Appellees.
    No. 8962.
    Court of Civil Appeals of Texas, Amarillo.
    April 16, 1979.
    Rehearing Denied May 21, 1979.

      Crenshaw, Dupree & Milam, Cecil C. Kuhne and J. Orville Smith, Lubbock, for appellant.
    Stokes, Carnahan & Fields, Robert N. Carnahan, Amarillo, for appellees.
   DODSON, Justice.

Kerry L. Jackson sued Associated Developers of Lubbock and Don Osborne for per-. sonal injuries which he sustained in a fall on a steel spiral stairway located in a building owned by Associated Developers. Mr. Jackson was employed by a building tenant. The case was tried to a jury on negligence and contributory negligence issues. The jury found both parties negligent and apportioned the negligence thirty-five percent to Mr. Jackson and sixty-five percent to Associated Developers. Based on the jury’s verdict, the trial court entered judgment for Mr. Jackson in the amount of $16,941.40. Both parties appeal from the judgment. We modify the judgment to decree the full jury award to Mr. Jackson, and as modified, we affirm the judgment.

Mr. Jackson attacks, inter alia, the unfavorable contributory negligence and proximate cause findings with legal and factual sufficiency points of error. He further maintains that the court erred in submitting these issues because Associated Developers failed to prove a predicating duty on his part. Associated Developers attacks the legal and factual sufficiency of the evidence to support the jury finding of $10,000 for Mr. Jackson’s future medical expenses and in the alternative requests a remittitur of $8,000.

Mr. Jackson was employed as manager of the Lubbock office of Firemen’s Fund Insurance Company. This company leased office space and basement storage areas in No. 10 Briercroft Office Park, a building owned and maintained by Associated Developers. The Firemen’s Fund offices were located on the first floor level. A small hall leads from the office space area through a landing area to the entrance of a spiral stairway extending to the basement. Portions of the landing area adjacent to the spiral stairway entrance were used by Associated Developers to store janitorial equipment and supplies.

On the day of the accident, Mr. Jackson proceeded from the office space area through the landing to the entrance of the metal spiral stairway and descended the stairs to the basement. After obtaining certain supplies from the storage area, he was ascending the spiral stairway when, about halfway up the stairway, he was struck by a falling box containing fluorescent light bulbs. Mr. Jackson fell backwards down the metal stairway, sustaining injuries to his back, left knee, and left foot.

It is undisputed that Associated Developers kept a large box containing fluorescent light bulbs stored in the landing area which was used as a janitorial service area. However, the evidence does not conclusively establish the exact location of the box immediately before the accident. It is further undisputed that Associated Developers had exclusive control of, and was responsible for, the maintenance óf the specific areas pertinent to the accident, i. e., the hall, the landing, the metal spiral stairway, and the area leading from the stairway at the basement level to the storage areas. It is also undisputed that Firemen’s Fund Insurance Company and its employees had no obligation to maintain or control any of these areas and that Mr. Jackson had a legal right to traverse these areas as a part of his employment with the insurance company.

The jury found, inter alia, that a box containing light bulbs fell from some point around the top of the spiral stairway, down the stairway, on the occasion in question; that the janitorial employee of Associated Developers had placed the box of light bulbs in whatever position they were in at the time they fell down the stairway; that the act of the janitor in placing the box of light bulbs in such position was negligence; and that such negligence was a proximate cause of the injury to Mr. Jackson. These jury findings are unchallenged by Associated Developers.

The jury also found that Mr. Jackson was negligent in allowing the box of fluorescent light bulbs to remain in a hazardous position, if same constituted a hazardous position, or in not removing the hazardous condition and that such act or omission was a proximate cause of the occurrence in question. Mr. Jackson attacks this jury finding with legal and factual sufficiency points. He also maintains that: the trial court erred in overruling his motion for judgment notwithstanding the jury’s answer to this special issue because there was no evidence to raise the issue; the undisputed evidence establishes that Mr. Jackson did not know of the presence of the box of light bulbs around the top of the stairway; there is no evidence that he knew the box of light bulbs was in a precarious position; he was not the person who had management or possession of the box containing light bulbs; he had no duty to inspect the premises for dangerous or precarious conditions; and he had no duty to keep a lookout over the box containing the light bulbs or its location.

I.

In Harvey v. Seale, 362 S.W.2d 310 (Tex.1962), our Supreme Court returned this type of premises case, i. e., landlord-tenant, “to trial upon negligence principles, that is, whether the plaintiff and defendant acted reasonably.” See also Parker v. Highland Park, Inc., 565 S.W.2d 512, 519 (Tex.1978). The duty of Associated Developers is unchallenged; therefore, we speak to matters related to the duty of Mr. Jackson.

Although Mr. Jackson had no duty to inspect the premises for latent precarious conditions, he had the duty to exercise ordinary care for his own safety. See Peck v. Peck, 99 Tex. 10, 87 S.W. 248, 249 (1905); Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413, 417 (Tex.Civ.App. — San Antonio 1952, writ ref’d n. r. e.). Contributory negligence is a breach of duty to exercise ordinary care to avoid injury. In Camp, the court stated:

An invitee is also under a duty to exercise reasonable care for his own self-protection against dangers of which he knows or ought to know. . . . Actually, an invitee’s knowledge of danger or the existence of facts from which he ought to have knowledge is relevant on the issue of the invitee’s own contributory negligence.

In Kenny v. El Paso Electric Company, 371 S.W.2d 777, 780 (Tex.Civ.App. — El Paso 1963, writ ref’d n. r. e.), the court also stated:

It is the essence of contributory negligence that the person to be charged therewith knew, or by the exercise of ordinary care should have known, of the circumstance or circumstances out of which the danger arose.

Knowledge of the peril which subsequently results in injury gives rise to the duty to exercise ordinary care to avoid injury. This duty knowledge consists of actual knowledge, as well as constructive or implied knowledge. See Camp v. J. H. Kirk patrick Co., supra; Kenny v. El Paso Electric Company, supra. Each phase of knowledge presents different duty considerations. See 57 Am.Jur.2d Negligence § 338 (1971); 65A C.J.S. Negligence § 119 (1966). In the absence of knowledge, i. e., actual or constructive, there is no duty, and without duty there can be no breach.

The determination of the existence of a legal duty is a question of law for the court. Oldaker v. Lock Construction Company, 528 S.W.2d 71, 77 (Tex.Civ.App. —Amarillo (1975), writ ref’d n. r. e.); Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App. — Amarillo 1964, writ ref’d n. r. e.). The determination is based upon the facts surrounding the occurrence in question. Webb v. City of Lubbock, supra. In contributory negligence considerations, duty knowledge is tested by the objective standard. See Massman-Johnson v. Gundolf, 484 S.W.2d 555, 557 (Tex.1972); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 379 (Tex.1963).

The challenged issue, i. e., that Mr. Jackson was negligent in not removing the hazardous condition, relates to the actual duty knowledge. It assumes that Mr. Jackson actually did see or knew the box of light bulbs was in a precarious position, if it was, and then questions whether Mr. Jackson was negligent in allowing the box to remain in a hazardous position or in not removing the hazardous condition. In essence, the issue assumes Mr. Jackson had a duty to remove the box because he saw or knew it was in a precarious position.

Mr. Jackson objected to the submission of the challenged issue on the following grounds:

Object to Special Issue No. 5D for the reason that he could not be guilty of allowing the box of florescent light bulbs to remain in a hazardous position unless he knew that it was there, and there is not one line of evidence or suggestion that he knew or placed them there, and therefore he could not have had the duty to not allow the box of light bulbs to remain in a hazardous position.

Mr. Jackson testified in clear and unequivocal language that he did not see the box of light bulbs and that he did not know where the box was situated on the occasion in question. His pertinent testimony follows:

Q Mr. Jackson, we have — have shown and are showing to the jury pictures of the spiral stairway that you were on at the time that you got hurt.
On April 8, 1975, were you on that stairway at the time you got hurt?
A Yes, sir.
Q At that time, where were you going or where had you been?
A I had been to our storage room in the basement and was coming back up the steps.
Q I wish you’d tell the jury, please, as to this spiral stairway, how often did you run up and down those stairs?
A Once or twice a month, I use those stairs.
Q And was it — did you ever, as you used those stairs, look around this storage area to see if everything that was stored there was carefully stored?
A I used it. I didn’t go in there and examine the area before I used it. If the way was clear, I went through.
Q Had you ever had the experience of starting down the stairs or up them either, and having something that was stored up there tumble down on top of you?
A No, sir.
Q In the once or twice a week that you used those stairways, did you ever actually observe a box of bulbs, or anything of that general nature setting in a position where it might tumble off of there?
A No, sir, I used the stairway, maybe once or twice a month.
Q Once or twice a month?
A Not a week, and I didn’t notice any unsafe situation concerning a box of light bulbs.
Q When you left your office and went down the stairway, of course, you had to go to this steel landing as these pictures and down around—
A Yes, sir.
Q —is that right?
A Yes, sir.
Q Did you notice anything setting there that looked like it was about to tetter over and fall off?
A No, sir.
Q Did you look for anything like that?
A No, sir.
Q Was it any part of your job or duty to police that area?
A No, sir.

At the trial Mr. Jackson testified in retrospect as follows:

Q Do you know where the thing fell from? Of your knowledge, I mean?
A I’m reasonably sure where it fell from. It fell from the righthand corner at the top of the stairs.
Q Now, you have testified to that before in your deposition. Did you see it setting up there in that righthand corner ever before it fell?
A I had seen the box there in that room, but I don’t recall seeing it in that spot.

Associated Developers points us to no other evidence purporting to establish the assumed duty fact that Mr. Jackson knew or saw the box in a precarious position. Associated Developers failed to establish that Mr. Jackson actually knew the box was in a precarious position, if it was. In the absence of actual knowledge that the box was in a precarious position, if it was, then there was no duty to remove it. Without the duty to remove the box, then there was no breach of the duty by allowing the box to remain in a hazardous position, if it was. See Texas Utilities Co. v. Dear, 64 S.W.2d 807, 811 (Tex.Civ.App. — Amarillo 1933, writ dism’d); Texas-Louisiana Power Co. v. Webster, 59 S.W.2d 902, 910 (Tex.Civ. App. — Dallas), aff’d, 127 Tex. 126, 91 S.W.2d 302 (1936). See also Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963); McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941); San Angelo Water, Light & Power Co. v. Anderson, 244 S.W. 571, 573 (Tex.Civ.App. — San Antonio 1922, writ dism’d). Under the circumstances of this case, we conclude that the trial court erred in submitting the challenged issue to the jury over Mr. Jackson’s objection.

Nevertheless, Associated Developers contends that Mr. Jackson, in the exercise of ordinary care for his own safety, should have known or should have seen the box in a precarious position, if it was. Associated Developers then suggests that we should presume findings in support of the judgment to the effect that Mr. Jackson failed to keep a proper lookout for the box in a precarious position and that such failure was a proximate cause of the injuries sustained by Mr. Jackson. These matters relate to constructive duty knowledge.

Associated Developers requested and obtained jury findings on two shades of proper lookout. Howfever, the jury’s answers to these issues do not support that portion of the judgment favorable to Associated Developers. Our determination on the challenged issue leaves that portion of the judgment favorable to Associated Developers without thé support of favorable jury findings.

Associated Developers did not plead, request, or obtain jury findings on whether Mr. Jackson failed to keep a proper lookout for the box in a precarious position, if it was, and that such failure was a proximate cause of the injuries sustained by Mr. Jackson. Likewise, Associated Developers does not contend that these issues were conclusively established as a matter of law, nor does the evidence support such a contention.

Rule 279 of the Texas Rules of Civil Procedure clearly provides for deemed findings only in support of the judgment, not to form the basis of a judgment. Under the circumstances we conclude that the unsub-mitted issues are waived. See Tex.R.Civ.P. 279; Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 84-85 (1940). We respectfully decline to follow Associated Developers’ suggestions and overrule its contentions.

In summary, we conclude that the trial court erred in submitting the challenged issue to the jury. Mr. Jackson filed his motion for judgment notwithstanding the jury’s findings that his negligence was a proximate cause of his injuries and that this negligence contributed thirty-five percent to the accident. The jury refused to find Mr. Jackson guilty of any other negligence which it determined to be a proximate cause of the occurrence in question. In point of error one, three, and five, Mr. Jackson presents these matters for review in this court. Under the circumstances of this case, we sustain these points of error.

II.

By cross points of error, Associated Developers challenges the legal and factual sufficiency of the evidence to support the jury finding that Mr. Jackson was entitled to $10,000 for future medical expenses. Associated Developers further contends that the $10,000 award is excessive in the amount of $8,000.

The award of future medical expenses is a matter primarily for the jury to determine. No precise evidence is required. The jury may make its award based upon the nature of the injuries, the medical care rendered before the trial, and the condition of the injured party. City of Houston v. Moore, 389 S.W.2d 545, 550 (Tex.Civ.App.— Houston 1965, writ ref’d n. r. e.); Edens-Birch Lumber Co. v. Wood, 139 S.W.2d 881, 887 (Tex.Civ.App. — Beaumont 1940, writ dism’d judgmt cor.).

In considering the legal sufficiency of the evidence to support the award of future medical expenses, we must examine the record for any probative evidence which supports the finding and disregard all contrary evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In reviewing the factual sufficiency of the evidence to support the jury finding, we must examine the entire record to determine if there is some probative evidence to support the finding and determine if in light of all the evidence the finding is not manifestly unjust. Garza v. Alviar, supra; In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660, 661-62 (1951).

On April 8, 1975, Mr. Jackson injured- his back, left knee, and left foot in the accident from which this suit arises. These injuries necessitated medical examinations, medication, physical therapy, hospitalization for an operation on the left knee and for a subsequent operation on his left foot. The cost to Mr. Jackson for these items and services was $6,063.69, which represented all medical expenses incurred through December 12, 1977, the date of trial. These expenses included $266.79 for medication and $1,861.50 for physical therapy-

At the time of trial, Mr. Jackson was 42 years old and had a life expectancy of 33.1 years. He testified that he continued to suffer pain from, and have problems with, each of his three injuries. He continued to take medication and to receive physical therapy treatments three times a week.

Dr. Mayes, an orthopedic surgeon, testified that Mr. Jackson was still under treatment at the time of trial and that he would continue to see Mr. Jackson for some time. He further stated that Mr. Jackson needed to continue his medication and physical therapy. With regard to the back injury, he testified that Mr. Jackson probably had a low grade ruptured disc in the low back area and that he was not willing to perform, and Mr. Jackson was not willing to undergo, surgery at the time of trial. However, Dr. Mayes said he would probably go along with surgery if the back condition did not improve. He was uncertain whether the surgery would consist of removing the disc or would require a spinal fusion. Concerning the knee injury, he testified that Mr. Jackson had not fully recovered from the surgery and was still experiencing pain, that he expected Mr. Jackson’s knee to develop some degenerative change in a period of years which might require medical treatment, and that an operation might become necessary. Finally, he testified that the $6,063.69 in medical expenses incurred prior to the date of trial were reasonable and necessary in light of the injuries sustained by Mr. Jackson.

Dr. Dunn, a specialist in neurological surgery, testified that at the time of trial the reasonable cost of back surgery would be approximately $2,000. However, if a fusion of the spine was required the price of surgery would be $4,000. He also stated that it should be known within two to three years whether back surgery would be required.

We conclude, after our review of the entire record, that the jury finding that Mr. Jackson was entitled to $10,000 for future medical expenses is supported by some probative evidence and the finding is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Accordingly, Associated Developers’ legal and factual sufficiency points are overruled. Our analysis of these points is also dispositive of the contention that the $10,000 award is excessive in the amount of $8,000. See Hammond v. Stricklen, 498 S.W.2d 356, 363 (Tex.Civ.App. — Tyler 1973, writ ref’d n. r. e.); Monsanto Company v. Milam, 480 S.W.2d 259, 268 (Tex.Civ.App.— Houston [14th Dist.]), aff’d, 494 S.W.2d 534 (Tex.1973); Sunset Brick & Tile, Inc., v. Miles, 430 S.W.2d 388, 393 (Tex.Civ.App.— Corpus Christi 1968, writ ref’d n. r. e.).

In conclusion, we sustain Mr. Jackson’s points of error one, three, and five, and we ovferrule Associated Developers^ cross point. Our disposition of these points of error and the cross point is dispositive of this appeal. Therefore, we deem it unnecessary to further discuss any remaining contentions of the parties. Accordingly, we modify the judgment of the trial court to decree that Kerry L. Jackson recover from Associated Developers of Lubbock and Don Osborne the sum of Twenty-six Thousand Sixty-three and 69/100 dollars ($26,063.69), the jury’s award, together with interest thereon at the rate of nine percent (9%) per annum from March 2,1978, and all costs of suit, for which let execution issue. As modified, the judgment is affirmed.

      . The position of Associated Developers and Don Osborne is the same in this appeal; therefore, we will simply refer to both parties as “Associated Developers” without any inferred legal significance.


author: SHANNON, Justice.

text:
    W. L. SUDDERTH and W. L. Sudderth, Inc., Appellants, v. Kenneth W. GROSSHANS, Appellee.
    No. 12917.
    Court of Civil Appeals of Texas, Austin.
    April 18, 1979.

      Ronald S. Block, Holcomb & Norwood, Tyler, for appellants.
    Tom Lear, Logan, Lear, Gossett & Harrison, San Angelo, for appellee.
   SHANNON, Justice.

This is an appeal from an order overruling appellants’ pleas of privilege and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, subdivision 7 (1964).

Appellee Kenneth W. Grosshans sued appellants W. L. Sudderth and W. L. Sud-derth, Inc., a Texas corporation, in the district court of Tom Green County for damages as a result of fraud in the sale of a water well drilling rig by appellants to ap-pellee.

Appellee pleaded that appellants represented to him in Tom Green County that the rig had been “just overhauled” and was in “very good condition.” Appellee alleged further that the representations were false in that the equipment was not in good condition. Appellee pleaded that he relied upon the representations to his damage.

Appellants filed pleas of privilege praying that the cause be transferred to Smith County, the county of their residence. Ap-pellee filed a controverting affidavit relying primarily upon subdivision 7.

Texas Rev.Civ.Stat.Ann. art. 1995, subdivision 7, provides in part:

“In all cases of fraud . . . suit may be brought in the county where the fraud was committed . . . ”

To establish fraud it must appear: (1) that a material representation was made; (2) that the representation was false; (3) that, when the representation was made, the speaker knew it was false or that he made it recklessly without any knowledge of its truth and as a positive assertion; (4) that the speaker made the representation with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon the representation; and (6) that the party thereby suffered injury. Panhandle & Santa Fe Ry. Co. v. O’Neal, 119 S.W.2d 1077 (Tex.Civ.App.1938, writ ref’d).

Appellants claim in point of error two that there is no evidence that they committed fraud in Tom Green County. In considering a “no evidence” point, the reviewing court must reject all evidence contrary to the jury’s findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).

The “Bill of Sale and Contract of Delivery” of the drilling rig was signed by the parties in Tom Green County. An attachment to the bill of sale and contract described the rig as having been “just overhauled” and in “very good condition.” Appellant W. L. Sudderth testified that he told appel-lee that the rig was in “good condition.” Sudderth told appellee that the motor of the rig had not been used before appellee bought the rig. The rig broke down about two weeks after the sale. Appellee discovered at that time that “. . . the blower was completely shot; rings were all gone. The crank shaft, when they dropped the bottom pan, it was completely grooved from wear and abusiveness [sic] of it. I believe there was, also, one head that was gone.” Appellee relied upon the representation that the rig was in good condition. Appellee would not have purchased the rig but for the representation that it was in good condition. According to Sudderth the defects in the rig were of a character that could not be detected by an external inspection. To have learned of the defects it would have been necessary to take the rig apart. Appellee testified that he was damaged $10,000 by the false representation.

Rejecting all evidence contrary to the judgment and considering only the facts and circumstances that tend to support the judgment, we are of the opinion there is some direct and circumstantial evidence that appellant W. L. Sudderth committed fraud in Tom Green County. Point of error two is overruled.

Appellee proved, conclusively, that venue was proper in Tom Green County as to appellate corporation under the basic venue rule. Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). Appellee offered into evidence the corporate charter of W. L. Sudderth, Inc. Article VI of the charter provides:

“REGISTERED OFFICE AND REGISTERED AGENT
The post office address of the corporation’s initial registered office is: 101 Riv-erbend Drive, San Angelo, Texas, and the name of its initial registered agent at such address is W. T. Sudderth.”

We judicially know that San Angelo is located in Tom Green County, Texas. Under the basic venue rule, the residence of a domestic corporation is the county where its registered office is located. Ward v. Fairway Operating Co., 364 S.W.2d 194 (Tex.1963).

The judgment is affirmed.

Affirmed.


text:
    Robert ENGELKE, Appellant, v. Woody CRAWFORD, Appellee.
    No. 12908.
    Court of Civil Appeals of Texas, Austin.
    April 18, 1979.

      Robert E. Jack, Law Offices of John B. Henderson, Jr., Cameron, for appellant.
    Charles C. Smith, Jr., Cameron, for appel-lee.
   PHILLIPS, Chief Justice.

This is a case involving the interpretation of a contract which was partly oral and partly written. The written part, relied on by appellant, was introduced into evidence. It provided that the parties entered into a partnership or joint venture to operate a store, “The Front Porch.” The parties were to share equally in the profits. Pursuant to the contract, appellant constructed the building to house the store, and appellee furnished the land. The written contract further provided that: “To further clarify any problems that may arise in case of the failure of said business and the business is forced to close and sell out, [appellant] is to receive a fair amount for his labor in said building. . . . ” Appellant is suing for that “fair amount.”

The trial court found that the agreement between the parties was partially in writing and partially oral. The court also found that the agreement between the parties was executory in nature, and that appellant breached the agreement by failure to perform his part thereunder. The trial court ordered that appellant take nothing.

Appellant contends, inter alia, that the contract upon which appellant based his claim was severable as a matter of law, and that the court’s findings of fact, as a matter of law, show appellant entitled to recovery.

We affirm.

There is no statement of facts filed in this case; therefore, the evidence of the oral contract found by the court is not available for review by this Court. In the absence of a statement of facts, we must presume there was evidence to support the findings of fact and the court’s judgment. Mays v. Pierce, 154 Tex. 489, 281 S.W.2d 79 (1955). Appellant contends that this Court need only look at the quoted language of the written portion of the contract, and that its terms are unambiguous and severa-ble as a matter of law. Appellant notes in his brief, however, that severability . . depends upon the intention of the parties which may be determined from the language used in the agreement. . . ” Again, we are not able to examine the terms of the oral portion of the agreement.

The trial court, having found a breach of the contract by appellant, correctly concluded that appellant could not recover thereunder. See, e. g., Great Plains Life Insurance Company v. First National Bank of Lubbock, 316 S.W.2d 98 (Tex.Civ.App. 1958, writ ref’d n. r. e.); Federal Sign Co. of Texas v. Fort Worth Motors, 314 S.W.2d 878 (Tex.Civ.App.1958, no writ); Humphrey v. Showalter, 283 S.W.2d 91 (Tex.Civ.App. 1955, writ ref’d n. r. e.).

The judgment of the trial court is in all things affirmed.

Affirmed.


text:
    Charles Edward COOPER, Jr., Appellant, v. Jeannette J. Cooper DALTON, Appellee.
    No. 1397.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 19, 1979.
    Earle S. Lilly, Lilly, Hamilton, Segelke & Short, Houston, for appellant. ,

    James A. Bouligny, Duckett, Bouligny & Collins, El Campo, for appellee.
   OPINION

NYE, Chief Justice.

Plaintiff, the former wife of the defendant, brought suit to obtain a judgment based on the defaulted provisions of a property settlement agreement heretofore entered into between the parties. The trial court rendered judgment in money damages for the plaintiff, from which the defendant appeals.

In February of 1977, the parties entered into an extensive property settlement agreement dividing their community property; providing for the assumption of certain indebtednesses by the defendant husband; requiring the defendant to pay to the wife $400.00 per month for 132 months support payments; and a number of other matters relating to their marriage, child support, and specific property division not relevant to this appeal. The defendant husband defaulted in several of the enumerated obligations in the predivorce settlement agreement. His default is the subject matter of this present suit. On appeal the defendant complains of the requirement to make monthly support payments contending that they are, in effect, alimony and, therefore, violate public policy and are void. His second complaint concerns a debt owed to a department store which he contends makes him subject to a double liability for the same debt.

The property settlement agreement and conservatorship agreement executed by the parties prior to the granting of the divorce was subsequently approved by the Domestic Relations Court of Wharton County upon the granting of the divorce February 21, 1977. The court said:

“IT IS DECREED that the agreement of Petitioner and Respondent for the division of their estate be and is approved and incorporated into this decree by reference as if it were recited herein verbatim.” ⅞

The agreement stated in part:

“The parties stipulate that they have attempted to divide their marital property in a manner which is 'just and right’ and ‘with due regard to the rights of each party and the children of the marriage.’ Further, the parties believe that such standards are best met by equal division and partition of the marital property in existence at the date of this Agreement, and stipulate that they have attempted to divide all marital property equally.”

At another point in the agreement, there appears the following provision which appellant contends is alimony:

“Husband agrees and contracts to pay to Wife for her future support and maintenance, and out of his future earnings or income, a sum of $400.00 per month for a period of 132 months.”

The defendant was an optician and owned an optometry practice in Wharton and Bay City, Texas.

Thé appellant contends that for a Texas court to award permanent alimony for the support of a divorced wife would contradict public policy and, therefore, such awards are not authorized. Citing McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961); McBride v. McBride, 256 S.W.2d 250 (Tex.Civ.App. — Austin 1953, no writ); Benedict v. Benedict, 542 S.W.2d 692 (Tex.Civ.App. — Fort Worth 1976, writ dism’d).

Our Supreme Court in Francis v. Francis, 412 S.W.2d 29 (Tex.Sup.1967), laid to rest the very problem presented by this appeal. There, the Supreme Court reviewed court-ordered alimony decrees from a number of out of state jurisdictions and compared them with court-approved agreements between the parties. The court said that: “[Ajlimony is an allowance for support and sustenance of the wife, periodic or in gross, which a court orders a husband to pay.” (Emphasis supplied). If the parties enter into an agreement by which one of the parties is obligated to pay maintenance to the other party and the divorce court adopts the agreement as the court’s judgment and orders such payments to be made, the same would be alimony. If the court merely approves the agreement, even though the same may be incorporated into the decree by reference, it would not be alimony viola-tive of Texas public policy. The Supreme Court said:

. .it follows that obligations assumed by the husband in separation agreements or contracts to make payments for the support of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State.”

We find that the property settlement and child support agreement was entered into by and between the parties prior to the final divorce. It was subsequently approved by the Domestic Relations Court. The decree of the court did not order the defendant to make the support payments to his former wife. The agreement related only to the existing property between the parties and was not subject to court control or modification. For instance, the agreement provided for the obligation to be charged against the estate of the husband in the event that he died prior to the satisfaction of the contractual obligations contained therein. It is obvious that the contract was not personal and was not dependent upon the defendant’s life. See Hutchings v. Bates, 393 S.W.2d 338 (Tex.Civ.App. —Corpus Christi 1965), affirmed 406 S.W.2d 419 (Tex.Sup.1966). It is obvious that the present intent of the parties was that such agreement was not subject to court control by this very suit in which the former wife sought enforcement. She did not seek a contempt order for the failure of the husband to make such payments, but sought only a judgment for the amount that the defendant was in default under the contract obligation.

The court is required to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and the children of the marriage. Tex.Family Code Ann., See. 363 (1975). It is not the purpose of our family law to prohibit the parties from entering into amicable division and settlement arrangement of their property.

“It seems to us that when a husband and wife who are faced with divorce in a pending action, undertake their solemn written agreement to stipulate and set forth the terms of their property settlement, and the obligation of the husband and father as to support payments for the little children, issues of such marriage, they do so impressed with the most poignant emotions and directed by the most solicitous of responsibilities. Agreements in writing, made under these circumstances, therefore, appear to import a quality of good faith and sincerity not always present in agreements, generally. The true interests of the parties speak persuasively from the four corners of such agreements.” Hutchings v. Bates, 393 S.W.2d 338, 341 (Tex.Civ.App. — Corpus Christi 1965), affirmed 406 S.W.2d 419 (Tex.Sup.1966).

The settlement arrangement that the parties here made should be encouraged and not discouraged. Francis v. Francis, supra. Appellant’s first point of error is overruled.

In the property settlement agreement which was adopted and approved in the divorce decree, the defendant was obligated to be responsible for all the debts of the community which were incurred prior to December 2, 1976. One of such debts was an obligation for a television set at Foley’s Department Store. When the defendant failed to pay this obligation, Foley’s sued the plaintiff and obtained a judgment against her for which she has made partial payment. In this suit against the defendant, for damages caused by the breach of the property settlement agreement, one of the items sued for was an amount of money equal to the judgment obtained by Foley’s against her. The defendant contends that since he was originally obligated to pay this debt under the original contract and property settlement agreement, to again make him liable in this judgment for the same debt would render him subject to a double liability on the same debt. This point of error has no merit.

It is true that the obligation to Foley’s was once the defendant’s. It is now the plaintiff’s and the defendant’s joint obligation by virtue of Foley’s judgment against the plaintiff. If the defendant retires the obligation to Foley’s by virtue of the property settlement agreement, then this judgment will be satisfied subject only to the $100.00 payment that plaintiff has made on the judgment to Foley’s. If the defendant pays the plaintiff the amount of the judgment as ordered in this suit and she fails to retire the Foley judgment against her (as the Defendant fears), and Foley’s seeks judgment thereafter against the defendant (a very unlikely situation), he would certainly be entitled to an offset against any moneys ordered paid to the plaintiff in this judgment or on his contractual obligation for support. We are convinced that the proper solution would be for the defendant to make the plaintiff and Foley’s joint payees on any check he uses to retire the Foley obligation. He would thus protect himself from any double obligation.

The judgment of the trial court is AFFIRMED. '


author: YOUNG, Justice.

text:
    VALLEY INTERNATIONAL PROPERTIES, INC., Appellant, v. BROWNSVILLE SAVINGS AND LOAN ASSOCIATION et al., Appellees.
    No. 1352.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 19, 1979.
    Rehearing Denied May 17, 1979.

      Joel W. Cook, Houston, Joseph A. Cohn, Jr., Corpus Christi, for appellant.
    Joel William Ellis, Harlingen, for appel-lees.
   OPINION

YOUNG, Justice.

This is an appeal from a suit brought by Bill Bass and appellant, Valley International Properties, Inc. against C. Fount Ray, and appellees, Brownsville Savings & Loan Association, and Los Campeones, Inc., seeking 1) to have a trustee’s sale declared void and to have certain deeds issued at this sale cancelled and 2) to recover damages for breach of fiduciary duty in the conduct of the trustee’s sale. Much of the background of this suit is explained in our earlier decision, Valley International Properties, Inc. v. Los Campeones, Inc., 568 S.W.2d 680 (Tex.Civ.App. — Corpus Christi, 1978, writ ref’d n. r. e.). Briefly, Brownsville Savings, mortgagee herein, loaned several million dollars secured by deeds of trust to V.I.P. for the purchase of golf course facilities in Cameron County, Texas. V.I.P. defaulted on the obligation and the trustee’s sale complained of below and here followed. After the sale, V.I.P. and Bass brought suit alleging that C. Fount Ray, as Trustee, Brownsville Savings, and Los Campeones, had conspired to prevent purchasers from attending the trustee’s sale which was held June 7, 1977; and that Ray had breached his fiduciary duty to V.I.P. by advertising that the sale would be for cash only and requiring bidders to pay cash for properties bid upon, while Brownsville Savings extended credit to Los Cam-peones which was thereby able to purchase and did purchase all the properties sold at the trustee’s sale.

In response to these allegations, Brownsville Savings and Los Campeones filed a plea in abatement and answer in which they denied these allegations. Their reply stated, among other things, that Brownsville Savings had credited V.I.P.’s debt for all the amounts Los Campeones bid at the sale; that V.I.P. had abandoned the golf course facility prior to the foreclosure sale; that, thus, in essence Los Campeones and Brownsville Savings were “mortgagees in possession” of the golf course properties and that the suit should be dismissed for the failure of V.I.P. to tender or show a willingness to tender the debt. See Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 1083 (Tex.Com.App.1938, opinion adopted); 39 Tex.Jur.2d rev., Mortgages and Trust Deeds §§ 86, 87, 196 (1976).

Brownsville Savings and Los Campeones also filed a motion for summary judgment claiming the absence of any issues of material fact, failure to state a claim, and, again, abandonment of the disputed property. Following these pleas, V.I.P. and Bass filed - a second amended original petition which generally admitted that at some time prior to the trustee’s sale herein, Los Campeones and Brownsville Savings took possession of the Country Club facilities herein.

The above plea in abatement and motion for summary judgment were set for hearing on December 22, 1977. During this hearing, a transcription of which is a part of the record herein, the trial judge, on his own motion, stated that in his opinion the issues of the instant case had been decided in the Valley International Properties v. Los Campeones, supra, case. Accordingly, he stated that he would dismiss the case as to Brownsville Savings and Los Campeones and would sever the cause against C. Fount Ray. The trial judge also engaged in the following discussion with Joel Ellis, attorney for V.I.P. and Bass:

“The Court: Let me ask you this, Mr. Ellis: . . .let us say for the sake of speaking, say there might have been fraud exercised where you were denied your due process; are you in position now to pay the entire balance?
My recollection is the plaintiff was the one who filed for bankruptcy.
Mr. Ellis: The plaintiff did file for bankruptcy, Your Honor, Chapter XI, and the plaintiff is not in position to pay the entire balance, but it is our position that if the sale were set aside, ultimately set aside in a full trial, Your Honor, that the sale should be re-held, and it’s our position that the values received at that sale would be more than the values received at the other sale by reason of the conspiracy or the plan, scheme, and design under which the original sale was held.” (Emphasis supplied).

Judgment dismissing appellant’s and Bass’ case with prejudice was signed on December 30, 1977. Within the judgment three reasons were expressed for the court’s dismissal of the case:

“[1] And it appearing to the court that all issues in this case have been previously decided, ... [2] and the Court having found as a matter of fact that Bill D. Bass and Valley International Properties, Inc. did not have the ability to pay the debt to Brownsville Savings and Loan Association and [3] further being of the opinion from the record in said prior cause . . and from the pleadings and motions on file herein, that said Plaintiffs have no issue requiring further consideration by the Court in the cause remaining unsevered herein:
IT IS ACCORDINGLY ORDERED, . that the cause of action . against Brownsville Savings and Loan Association and Los Campeones, Inc. . is hereby, dismissed, with full prejudice

Appellant, V.I.P., filed a motion for new trial which only complained that there existed material issues of fact and that collateral estoppel did not apply to defendant Brownsville Savings. A hearing was held on the motion for new trial, and the same was denied. Bass did not appeal, but V.I.P. did.

Appellant, V.I.P., brings three points of error. Point 1 complains in the first of its subparts that the trial court erred in dismissing the suit with prejudice because genuine issues of material fact exist. Point 1 also alleges error in dismissing the suit because there was no motion to dismiss before the trial court. This particular complaint was never raised in the trial court, though, and cannot be considered for the first time on appeal. Harmon v. City of Dallas, 229 S.W.2d 825 (Tex.Civ.App. — Dallas 1950, writ ref’d n. r. e.); Rule 324, T.R.C.P. The remainder of point 1 and all of point 2 complain that the trial court erred in failing to hear the appellees’ motion for summary judgment. Again, this complaint was not raised during the hearing or in appellant’s motion for new trial and cannot be raised for the first time on appeal. Harmon, supra. Appellant’s point 3 contends the trial court erred in ruling that appellant was collaterally estopped from bringing this suit.

We need not reach the merits of the first subpart of point 1 or point 3 as they -regard the requested relief of voiding the-sale and cancelling the deeds because appellant failed to assign error to one of the trial court’s independent grounds for dismissing the case; i. e., as set forth above, that V.I.P. did not have the ability to pay the debt to Brownsville Savings as a condition precedent to relief in this action. A mortgagee lawfully in possession of the mortgaged property has a right to retain possession until the mortgage debt has been paid in full. Jasper State Bank v. Braswell, supra.

Where a determination may rest upon more than one ground the party aggrieved by the judgment must assign error as to each such ground or risk having the judgment affirmed on the ground to which no error was assigned. Nesmith v. Hester, 522 S.W.2d 605 (Tex.Civ.App.—Austin 1975, no writ); LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App.— Beaumont 1966, writ ref’d n. r. e.). Appellant’s failure to assign error to this independent ground requires us to affirm the trial court’s determination dismissing appellant’s action to void the sale and cancel the deeds.

This leaves us with deciding the merits of the first subpart of appellant’s point 1 and appellant’s point 3 as they relate to appellant’s cause alleging damages for breach of fiduciary duty in the conduct of the trustee’s sale.

Again, the first subpart of point 1 alleges that there exist material issues of fact raised by the pleadings and affidavits. This point reads as if a summary judgment had been granted, and yet, within appellant’s brief, V.I.P. unequivocally asserts that the motion for summary judgment was not heard. Appellees, in their brief, also appear to agree that the motion for summary judgment was not heard in the trial court. The judgment recitals, themselves, are not conclusive as to whether the court passed upon the motion for summary judgment. Accordingly, we must look to the remainder of the record to determine the intent of the court. Lone Star Cement Corporation v. Fair, 467 S.W.2d 402 (Tex.Sup.1971); 4 McDonald, Texas Civil Practice, § 17.10.1 n 77 (1971). During the hearing of this matter Mr. Ellis objected to the introduction into evidence of the record of the prior suit, Valley International Properties, Inc. v. Los Campeones, Inc., supra, as not being in compliance with the rules with regard to summary judgments. The court then responded:

“Well let me say this: Gentlemen, I’m not—the summary judgment itself and everything else, I am doing this at my own instance.” (Emphasis supplied).

We think this statement taken in conjunction with the parties’ position in their briefs reflects the fact that the trial court never ruled upon the motion for summary judgment. Accordingly, nothing with respect to the motion for summary judgment is presented for review. Beacon National Insurance Co. v. Young, 448 S.W.2d 812, 813 (Tex.Civ.App.—Dallas 1969, writ ref’d n. r. e.). Appellant’s points 1, 2, and 3 as it relates to appellant’s action to void the trustee’s sale and cancel the deeds, are overruled.

Appellant’s point 3 as it relates to the appellant’s action for damages, contends the trial court erred in ruling that res judicata or collateral estoppel prevented appellant from bringing this action. We agree.

A statement of the traditional general principle of res judicata is as follows:

“[A] question of fact or of law, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris, is conclusively settled , by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a different cause of action. State of Oklahoma v. State of Texas, 256 U.S. 70, 86, 41 S.Ct. 420, 422, 65 L.Ed. 831 (1920).”

Hammonds v. Holmes, 559 S.W.2d 345, 346 (Tex.Sup.1977).

The previous cause of action, involving several of the parties hereto, was a suit to compel a shareholders’ meeting pursuant to Tex.Bus.Corp.Act Ann. art. 2.24 (Supp. 1978). The only fact issues to be determined there involved 1) whether Los Cam-peones was a shareholder and 2) whether an annual shareholders’ meeting had been held in the prior thirteen month period. Neither of these issues is involved in the instant suit. Moreover, we do not consider that the issues of the instant suit necessarily should have been considered in the prior suit. It would be fundamentally and procedurally unfair to compel V.I.P. to bring suit for wrongful acts in the sale of real estate at a trustee’s sale as a counterclaim to a suit by Los Campeones to compel a shareholders’ meeting; notwithstanding that Los Cam-peones purchased its controlling shares in V.I.P. at the same trustee’s sale which is the subject of the instant suit. Griffin v. Holiday Inns of America, 496 S.W.2d 535, 538 (Tex.Sup.1973). Res judicata is not a bar to the instant suit.

Insofar as collateral estoppel might apply to the instant suit, the general rule is that collateral estoppel also operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated in a court of competent jurisdiction from being relitigated in a subsequent suit between the same parties or those in privity with them. Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195, 198 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n. r. e.). As explained above, the issues in the former cause are entirely distinct from those in the instant suit and thus collateral estoppel does not apply either. Accordingly, we sustain appellant’s point 3.

In this action, the claim to void the trustee’s sale and cancel certain deeds and the claim for breach of fiduciary duty in the conduct of the trustee’s sale involve the same facts and similar issues which are so interwoven as to make it impractical to try the case piecemeal. Consequently, we reverse the entire judgment as to V.I.P. See McCollum v. Parkdale State Bank, 566 S.W.2d 670, 675 (Tex.Civ.App. — Corpus Christi 1978, no writ). Bass, however, did not file an appeal in this cause, and we do not think that V.I.P.’s rights to full and effective relief are dependent on Bass’ being made a part of this cause. See Dairyland County Mut. Ins. Co. of Tex. v. Martinez, 484 S.W.2d 785 (Tex.Civ.App. — El Paso 1972, writ ref’d n. r. e.).

Appellees have also filed a motion in this Court asking us to dismiss the appeal because Joel Ellis, attorney for the appellant, has no authority to represent V.I.P. in this appeal. An affidavit of the purported president of V.I.P., Pat Stanford, stating that Ellis has no authority to represent V.I.P., and a notarized copy of corporate minutes showing Stanford as the elected president of V.I.P. accompany the motion. We need not consider the merits of this motion, however, in that a motion pursuant to Rule 12, T.R.C.P. is the exclusive method of questioning the authority of an attorney to bring suit and such motion must be heard and determined “ ‘before the parties have announced ready for trial.’ ” Angelina County v. McFarland, 374 S.W.2d 417, 423 (Tex.Sup.1964). This motion may not be raised, as it is here, for the first time on appeal. Appellees’ motion to require appellant’s attorney to prove authority is overruled. Joel Cook, attorney for appellees, purporting to represent V.I.P. has also filed a motion seeking to dismiss this appeal and Joel Ellis; it is accompanied by a resolution of the asserted directors of V.I.P. purportedly elected at a special shareholders’ meeting on July 7,1977. We cannot sustain this motion either. The affidavits in the record and the motion state that only a “special meeting” was held to elect these directors. Generally, the Tex.Bus.Corp.Act Ann. art. 2.32 (Supp.1978) requires that directors be elected at annual meetings. Thus we do not accept the efficacy of the “special meeting” whereby directors were elected where, as here, there is no evidence of authorization in the corporation’s by-laws or articles of incorporation permitting the election of directors at “special meetings.” Tex.Bus. Corp.Aqt Ann. art. 2.32 (Supp.1978). Further, any assertion that Stanford is president of Y.I.P. is not sufficient in itself to give him the authority to control litigation and to employ and terminate employment of counsel. Square 67 Dev. Corp. v. Red Oak State Bank, 559 S.W.2d 136 (Tex.Civ. App. — Waco 1977, writ ref’d n. r. e.). According to Tex.Bus.Corp.Act Ann. art. 2.31 (1956) the “business and affairs of a corporation shall be managed by a board of directors” and unless the by-laws or a directors’ resolution so provides, the president has no authority to conduct litigation for the corporation. Tex.Bus.Corp.Act Ann. art. 2.42(B) (1956), Square 67 Dev. Corp. v. Red Oaks State Bank, supra. We have no such by-laws or resolution before us and consequently we cannot say that Stanford has the authority to dismiss Mr. Ellis from this case. V.I.P.’s motion is accordingly overruled.

Appellees .finally also seek dismissal of the case because no notification was given to appellees’ counsel of the filing of appellant’s certificate of deposit in lieu of appeal bond. The notice required by Rule 354(b), T.R.C.P. is not jurisdictional; and where, as in this case, the appellees allege no harm or detriment as a result of the lack of notice, the appeal will not be dismissed. Harrison v. Harrison, 543 S.W.2d 176, 178 (Tex.Civ.App. — Houston [14th Dist.] 1976, no writ). This motion is overruled.

The judgment of the trial court is affirmed as to Bill D. Bass and it is reversed and the cause is remanded for trial as to Valley International Properties, Inc.