author: DUNAGAN, Chief Justice.

text:
    LOUISIANA PACIFIC CORPORATION, Appellant, v. Duane SMITH et ux., Appellees.
    No. 1006.
    Court of Civil Appeals of Texas, Tyler.
    June 9, 1977.

      William Drew Perkins, Lufkin, for appellant.
    Gregg Owens, Adams, Tiller & Owens, Nacogdoches, for appellees.
   DUNAGAN, Chief Justice.

This is a trespass and conversion lawsuit. Plaintiffs Duane Smith and wife, Jane Smith (hereafter called appellees) brought suit against defendant Louisiana Pacific Corporation (hereafter called appellant) seeking actual and exemplary damages in the amount of $24,892.00 allegedly suffered by appellees as a result of appellant’s wrongful trespass onto appellees’ land and subsequent destruction and conversion of timber and pulpwood growing thereon. Appellant answered stating that it did not willfully or intentionally enter appellees’ property without authority nor authorize the cutting of any timber which it had not purchased, and further denied all material allegations in appellees’ pleading.

Trial was to the court and jury, and the jury answered all special issues in favor of appellees.

The court, after overruling appellant’s motion for judgment non obstante veredicto and motion to disregard the jury’s answers, upon appellees’ motion for judgment entered its final judgment awarding the sum of $21,881.76 with interest thereon from the date of entry at the rate of 9% per annum and all costs. Appellant timely made its amended motion for new trial which was overruled by the court, and thereafter appellant timely perfected this appeal.

Appellant presents seven points of error in its brief, complaining that there was either “no evidence” or “insufficient evidence” to support the jury’s answers to certain special issues, footnoted below. We reform the judgment of the trial court and as reformed, affirm.

The facts giving rise to this suit occurred over a two-day period beginning on or about April 8, 1974. Appellant hired Richard Heartless, a “logger,” to cut timber on a tract of land owned by the Jopling Estate located in Nacogdoches County. The Jo-pling tract lay generally to the west and south of a 256-acre tract of land owned and managed by appellees. Appellees’ tract was forest land consisting primarily of pine timber. Appellees from time to time harvested timber off of this tract and other tracts which they owned.

Because excessive rains had made logging operations difficult on the tract of land where Heartless was cutting plywood logs prior to the occurrence in question, Heartless asked appellant’s logging foreman, Billy Fondren, to move him and his crew to a drier tract of timberland. Fondren took Heartless and another logger, Jake Flowers, in Fondren’s pickup, to the Jopling estate located several miles away where they determined that the Jopling tract was more conducive to wet weather operations.

Fondren’s duties as logging foreman included placing the loggers on the tract or portion of the tract on which appellant was authorized to cut timber. On the day that Fondren drove Heartless and Flowers to the Jopling tract it was raining. Fondren drove up a road on the Jopling tract, parked next to two gates, and gave oral instructions to Heartless and Flowers on where to cut. Flowers was given directions to cut on a different part of the tract than where Heartless was to cut. Concerning the instructions, Heartless testified, “There wasn’t no problem, you know, to find or anything. I done just like he [Fondren] said.” Heartless testified that he was not confused by the instructions.

Heartless and Jake Flowers began cutting operations soon thereafter on or about April 8, 1974. Heartless moved his equipment to timber which he thought was located on the Jopling tract but was actually located on appellees’ tract. Heartless began cutting timber one afternoon or evening on or about April 8,1974 and had been logging “approximately 5, maybe 6 hours” the next day before appellee Duane Smith discovered the cutting operation and soon thereafter convinced Heartless that he was on the wrong land. The logging operation then ceased after a substantial amount of timber and pulpwood had been cut and removed.

Flowers’ testimony supports the testimony of Heartless. Flowers testified that the instructions to Heartless were to go through a “gap” and come to a dirt road, to travel down the road past a pond and through an old fence that “don’t amount to nothing,” and then go into a second “gap,” and begin cutting timber there.

At no time did Fondren leave the truck and go on foot to show Heartless and Flowers the actual areas to be cut. There is undisputed evidence that part of Fondren’s job was to physically accompany the loggers to the cutting area and point out the corners and boundary lines so that the loggers would not trespass onto other tracts. There was also testimony indicating that Fondren never did this unless he could drive to the actual cutting site.

Appellee Duane Smith testified that the fence on the side of his tract where the wrongful cutting took place was good fencing, that it would hold cattle; that there was flagging on the fences and also on the timber along the boundary line; and that he had marked most of the boundary line with red paint.

Allen Jopling, one of the owners of the Jopling tract, testified that he showed the land to two of appellant’s employees in the late summer or early fall of 1973; that the portion of the Jopling tract which he showed to appellant’s employees was adjacent to appellees’ land; that there was a fence between the tracts; that the fence was good enough to hold cows in; that one could tell when he crossed over from one tract to the other; that he showed appellant’s employees “the timber and the corners, fence, and lines”; that he walked them around the fences and placed markers on the fences; that he specifically pointed out to them where appellees’ tract was; that he “made it clear, and . . . told them when they left in front of my house, not to go through but one gap”; and that he told them “they couldn’t go wrong if they stayed inside that one gap, not to pass through more than one gap”; and that to get to appellees’ land, they would have to go through a second “gap.”

A former employee of appellant, Levi Zane, also testified. Zane was a “procurement forester,” whose job involved the purchasing of private timber. Zane testified that the Jopling heirs contacted appellant about selling timber off of the Jopling tract; that appellant sent an employee to “cruise” the Jopling tract to enable appellant to bid on the tract; that one of the Jopling heirs pointed out the Jopling tract to the cruiser; and that the cruiser made a cruise of the Jopling land but also trespassed over on the Smith tract in making the cruise. Zane further testified that in evaluating the cruise data he discovered that trespass and had to adjust the cruise data accordingly; that the section of appel-lees’ tract on which the cruiser trespassed was also the same section where the wrongful cutting took place; that Zane approached appellees about purchasing their timber that had been cruised but that ap-pellees refused to sell that timber; that the fences separating the two tracts were in good condition; that he decided to place more flagging on the lines after Flowers told him they were not sure of the boundaries; that he placed more flagging; that he requested the cruiser, Ming Lee, to place even more flagging on the lines; that Fon-dren had the maps and had agreed to take care of the additional flagging; and that he did not know if Fondren ever flagged the lines. There is no evidence that Fondren ever set foot on the area of the Jopling tract that was adjacent to the area where appellant’s loggers wrongfully cut appel-lees’ timber.

Appellant’s first two points of error allege that there was “no evidence” and “insufficient evidence” to support the jury’s finding that appellees were entitled to the manufactured value of the timber and pulpwood. Damages in a timber case such as this are normally awarded on either market value (also called “stumpage” value) or manufactured value (sometimes called “processed” value). The cases generally define market value to be the value of the timber standing in the tree before the tree has been felled and cut into logs, whereas manufactured value is generally defined as the value of the product into which the timber has been manufactured or processed, such as lumber or newsprint. 69 A.L.R.2d 1335 et seq. Depending on the culpability or degree of negligence of one who harvests timber pursuant to a trespass onto the timberland owned by another, one of the values will be awarded the wronged timberland owner. Martin v. J. S. Hunt Lumber Co., 180 S.W.2d 956 (Tex.Civ.App.—Waco 1944, n. w. h.); 37 Tex.Jur.2d “Logs and Timber” sec. 3 (1962).

A leading case on this subject is Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638 (1935) in which the Supreme Court of Texas wrote at page 646:

“ . . . The doctrine of manufactured value is based upon the rule of law that a party whose property has been tortiously taken is entitled to it or its enhanced value until it has been so changed as to alter the title. Under such a rule it is held that the owner of timber may reclaim it when manufactured into lumber, cross-ties, shingles, etc. [citing cases] Notwithstanding the above rule, manufactured value will not be applied in regard to timber cut and appropriated where the trespass is the result of inadvertence or mistake, or where the person committing the wrong acted in good faith, and without any intention of committing a wrongful act. Of course the act must not be in reckless disregard oí the rights of the owner, but the act must be willful and the wrong intentional, or committed under such circumstances that the law will impute malice. . . . ”
(Emphasis added.)

The question here is was the conduct of appellant’s logging foreman, Fondren, in reckless disregard of the rights of adjoining landowners? We feel that it was.

We have made a thorough study of similar cases on point to determine what conduct constitutes “reckless disregard” and have then compared these cases to the facts in this case as shown by the record. One such case closely on point is Emporia Lumber Co. v. League, 105 S.W. 1167 (Tex.Civ.App.1907 n. w. h.), in which the Court of Civil Appeals affirmed an award of manufactured value. In that case the boundary lines of the plaintiffs’ timberland were marked and “readily observed,” and the plaintiffs’ timberland was adjoining the tract of land where timber cutters were supposed to have cut. The Court stated at page 1168 that “The slightest care would have resulted in knowing that they were cutting over on plaintiff’s land, and it was either a case of turning the gang loose to cut in that locality, or inexcusable negligence on the part of their foreman to not inform them, and to see to it, that they did not go beyond defendant’s line. There is no difference in legal consequences between a willful disregard of the rights of another and a reckless disregard of same.”

Another case is Ripy v. Less, 55 Tex.Civ.App. 492, 118 S.W. 1084 (1909, n. w. h.), in which a timber cutter failed to correctly follow instructions in locating the timber to be cut. In the Ripy case the boundary lines were not in dispute or in confusion, and the court concluded that the lines were “ascertainable by proper care.” As to the cutting, the court said, “It might not be a malicious act, because not intended to injure the owner. Every person who cuts timber upon his own land, or who intends to do so, owes a duty to an adjoining landowner to ascertain the boundary line of the adjoining land, if he can, with diligence and care, so as to avoid trespassing upon such adjoining land; and, if he neglects such duty, and negligently and carelessly or recklessly cuts beyond his own premises, he cannot be said to have done so by mistake. The neglect of such duty is in itself evidence of a want of good faith.”

Appellant in its brief asserts that the record indicates that the cutting of the timber on the wrong tract was a good faith mistake. However, we feel that Fondren acted in reckless disregard and conscious indifference to the rights of appellees, the adjoining landowners. The law considers such “reckless disregard” or “conscious indifference” to require the same damages as a willful, intentional, or malicious act. Kirby Lumber Co. v. Temple Lumber Co., supra; LeMieux Lumber Co. v. Neuman, 437 S.W.2d 356 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.); Williams v. Bertrand, 303 S.W.2d 457 (Tex.Civ.App.—Beaumont, 1957, no writ). We have viewed the evidence in its most favorable light in support of the jury’s answer to Special Issue Number 1, and in so doing we have determined that said answer is supported by some evidence. Texas Farm Products Co. v. Leva, 535 S.W.2d 953, 955 (Tex.Civ.App.—Tyler 1976, n. w. h.); Courtesy Pontiac, Inc. v. Ragsdale, 532 S.W.2d 118, 121 (Tex.Civ.App.—Tyler 1976, ref’d n. r. e.). Furthermore, we have searched the record for evidence both favorable and unfavorable to the jury’s answer and cannot conclude that the jury’s answer was against the great weight and preponderance of the evidence. Accordingly, appellant’s first and second points are overruled.

Appellant also supports his contest of the jury’s answers to Special Issue No. 1 in urging that (1) an award of manufactured value is actually an award of exemplary damages; (2) a corporation is not liable in exemplary damages for the acts of its employee unless the employee was acting in a managerial capacity; (3) appellees did not offer any evidence of Fondren’s “managerial capacity” nor did they request a finding as to whether Fondren was acting in a managerial capacity; and (4) “Thus, the trial court erred in awarding manufactured value, a form of punitive damages, against appellant.”

Appellant’s complaint concerning “managerial capacity” actually goes to the court’s charge. Without reaching the legal validity of appellant’s statements above, the issue of managerial capacity would be a controlling issue. Appellant completely failed to object to the court’s charge and thereby waives his complaint of the omission of a controlling issue. Tex.R.Civ.P. 272, 274 & 279. In 3 McDonald Texas Civil Practice sec. 12.27.1 (1970) it was written:

“An objection is necessary (and sufficient) to preserve complaint of the error in omitting one or more controlling issues which are necessary to submit completely the component elements of a theory of recovery or of defense relied upon by the opponent of the objecting party. . [Wjhen the court submits one or more of the component elements of an identifiable ground of recovery or of defense, but omits an element or elements of the same ground, the parties waive a jury trial upon the omitted element or elements unless they call the court’s attention to the omission. Since a party who does not rely upon the issue need not request it, yet must point out the deficiency in the charge, he does so by an objection.” (Emphasis supplied.)

“Otherwise, a litigant could speculate on a finding only to repudiate it if it proved adverse.” 57 Tex.Jur.2d “Trial” sec. 517, pages 228-229.

Having waived a jury trial on this issue appellant is relegated to an evidentia-ry attack on the implied finding by the court in support of the judgment. We feel there is evidence that Fondren acted in a managerial capacity in controlling the location and size of the timber to be cut, and also in controlling the activities of the loggers.

We shall next consider appellant’s points of error numbers four, five, six and seven. These points allege that there was “no evidence” and “insufficient evidence” to support the jury’s answers and findings to Special Issues Nos. 8 and 9 and that the court erred in entering its judgment based upon said answers and findings. In Special Issues Nos. 8 and 9 the jury found that appel-lees were entitled to exemplary damages in the amount of $4,500.00.

Appellant first argues under these four points that “the jury awarded appellee both manufactured value and exemplary damages. The trial court, in effect, is punishing appellant twice . . . . There is no legal basis for a double award of exemplary damages and for this reason it was error for the trial court to enter a judgment awarding appellees both manufactured value and exemplary damages.”

This point is not before us. Appellant did not object to the charge on the basis of double recovery or any other basis, and therefore waived his complaint of double recovery. Tex.R.Civ.P. 272. Appellant made no mention of double recovery in its motion for judgment n. o. v. or motion to disregard the jury’s answers, nor are appellant’s points of error germane to any assignment of error in its amended motion for new trial. Nowhere has appellant presented this point other than in unsupported argument in its brief. Appellant’s points of error are insufficient to present his argument that appellees received a double recovery. Tex.R.Civ.P. 374.

The question then evolves into what evidence does the record reveal on the separate issue of exemplary damages? Texas Farm Products Co. v. Leva, supra, at page 958. As previously pointed out in this opinion, there is sufficient evidence that the conduct of appellant through its logging foreman constituted a reckless indifference or conscious disregard of appellees’ rights as adjoining landowners. Further, we believe that the jury’s finding that appellees were entitled to exemplary damages is not against the great weight and preponderance of the evidence. Among other undisputed facts, the failures of appellant’s foreman to be cognizant of previous trespasses on the same land, to be aware of specific cautionary instructions given by Jopling, and to accompany the loggers and physically place them on the correct cutting site have a foreseeable probability of doing harm to adjoining landowners. Fondren knew the complexities of the boundary lines and that the loggers were relying totally upon his instructions, such that he displayed a conscious indifference to the probability of doing harm to adjoining landowners. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, 712 (Tex.1943).

The jury awarded $4,500.00 in exemplary damages to appellees. The amount of exemplary damages rests largely in the discretion of the jury and should not be disturbed unless the damages are so large as to indicate that they are the result of passion, prejudice or corruption. Courtesy Pontiac, Inc. v. Ragsdale, supra; First Security Bank & Trust Co. v. Roach, 493 S.W.2d 612 (Tex.Civ.App.— Dallas 1973, ref’d n. r. e.).

Appellant in its third point of error urges that “The trial court erred in awarding the manufactured value of the timber cut on appellees’ land since there was no evidence the timber was made into either lumber or newsprint.” The court’s charge instructed the jury to find, among other things, the following values:

(a) the market value of the timber cut and removed (Special Issue No. 2) to which the jury answered $2,016.56;
(b) the market value of the timber cut and destroyed (Special Issue No. 3) to which the jury answered $1,876.56;
(c) the manufactured value of the pulpwood cut and destroyed (Special Issue No. 4) to which the jury answered $4,868.00;
(d) the market value of pulpwood cut and destroyed (Special Issue No. 4a) to which the jury answered $123.50;
(e) the manufactured value of the timber cut and removed (Special Issue No. 5) to which the jury answered $5,767.07; and
(f) the manufactured value of the timber cut and destroyed (Special Issue No. 6) to which the jury answered $5,366.69.

The record indicates the following: that before Heartless was transported to the Jopling tract he had been cutting plywood logs on land described as the Middlebrook tract and delivering said logs to appellant’s plant in Corrigan, Texas; that appellant manufactured plywood at its plant in Corri-gan, Texas; that when Heartless moved to begin cutting on the Jopling tract Fondren told him to cut everything down “that would make a 17 foot log with a 7 inch top”; that a log with such dimensions would “just barely make plywood”; that Heartless or his drivers delivered three loads of logs to the plywood plant in Corri-gan, Texas; that Heartless received three receipts each entitled as a “Louisiana Pacific Corporation Weight and Scale Ticket”; that Heartless testified “Well, we just drove in there, weighed in, went on it, they picked the load up off us, off the truck, come back out, weighed the empty weight out, and went on”; and that Heartless received a weight ticket for each load of logs. Nowhere in the record is there evidence of what happened to the timber after it was delivered to appellant’s plywood plant. Nevertheless, the above evidence, although circumstantial, carries a strong inference that the timber so delivered was processed or manufactured into plywood, such that we hold there is some evidence to support the jury’s findings in that regard.

However, appellant’s point of error is well taken regarding the award of manufactured value for the timber and plywood cut and destroyed. The record indicates that some timber was actually destroyed by the cutting process, and that an amount of timber was cut into logs that were stacked in a “set” and left on appellees’ land. The case was apparently tried and submitted to the jury on the premise that all timber left on appellees’ land was “destroyed.”

We have been unable to find any case where an award of manufactured value was given for timber that was cut and destroyed. In every case and treatise which this court has read, the courts of Texas have allowed manufactured value only where there was evidence establishing that timber wrongfully cut and removed was “appropriated,” “improved,” “processed,” “enhanced” or “manufactured” into a more valuable commodity, and where the trespass and conversion were not the result of a good faith inadvertence or mistake. Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932 (1956); Kirby Lumber Co. v. Temple Lumber Co., supra; 69 A.L.R.2d 1351, supplementing 161 A.L.R. 572; 14 Tex.Jur.2d “Conversion” secs. 29-40 (1960); 37 Tex.Jur.2d “Logs and Timber” sec. 3 (1962). The fact that a portion of the timber cut was destroyed or left on appellees’ land is, needless to say, proof that it was not manufactured into a more valuable commodity. The jury found that such timber had a manufactured value of $5,366.69.

There is no evidence that any pulpwood was removed from appellees’ land, and the special issues concerning pulpwood refer to it as having been destroyed. The jury found that such pulpwood had a manufactured value of $4,868.00.

Since there is no evidence that the pulpwood and part of the timber that were destroyed were manufactured into a more valuable commodity, appellant is liable only for the market value of same. That portion of the judgment awarding appellees the manufactured value of the timber and pulpwood that were destroyed is reversed, and judgment is here rendered that appellees are not entitled to the manufactured value of the timber and pulpwood that were destroyed.

It appears from the judgment that the court did not include in its judgment the amount found by the jury to be the market value of the timber cut and removed (Special Issue No. 2, to which the jury answered $2,016.56) but instead correctly allowed the appellees to recover the manufactured value of said timber. Obviously appellees could not recover both. However, it also appears that the court made an error in adding the remaining amounts awarded to appellees by the jury. It is within the power of the Court of Civil Appeals to render the judgment which in its opinion should have been rendered by the trial court where, from the face of the record, it appears that the judgment should be reformed in the interest of justice. Carter v. Barclay, 476 S.W.2d 909, 918 (Tex.Civ.App.—Amarillo 1972, no writ); Wofford v. Miller, 381 S.W.2d 640 (Tex.Civ.App.—Corpus Christi 1964, ref’d n. r. e.); 4 Tex. Jur.2d, Rev., Part 2, “Appeal and Error— Civil Cases” sec. 896 (1974). The jury answered all special issues which asked for a monetary amount to be found. There is no need to remand this cause for new trial on the issue of damages since the correct amount to which appellees are entitled may be determined by mathematical calculation. McDaniel v. Castro County, 514 S.W.2d 488 (Tex.Civ.App.—Amarillo 1974, ref’d n. r. e.). Appellees are entitled to recover the total amount of the jury’s answers to Special Issues Nos. 3, 4A, 5, 7 and 9, which is $13,647.13.

The judgment of the trial court that ap-pellees recover $21,881.76 with interest thereon at the rate of 9% per annum is reversed and rendered in part and reformed and affirmed in part to provide appellees with a recovery of $13,647.13 from appellant with interest thereon at the rate of 9% per annum from the date of entry of the trial court’s judgment, Tex.Rev.Civ.Stat. Ann. art. 5069-1.05, and as so reformed, is affirmed.

Reversed and rendered in part and reformed and affirmed in part.

      . The Court’s charge contained the following issues, with other issues omitted:
      “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that Plaintiffs are entitled to the manufactured value of the timber and pulpwood in question?
      Answer: ‘Yes’ or ‘No’
      ANSWER: Yes
      In answering the foregoing special issue, manufactured value will not be applied in regard to timber cut and appropriated where the trespass is the result of inadvertence or mistake, or where the person committing the wrong acted in good faith, and without any intention of committing a wrongful act. Of course the act must not be in reckless disregard of the rights of the owner, but the act must be willful and the wrong intentional, or committed under such circumstances or conscious indifference to the question as to amount to the same thing.

      “SPECIAL ISSUE NO. 4: What do you find from a preponderance of the evidence to be the manufactured value of the Pulpwood cut and destroyed from the land of Duane Smith and Jane Smith on or about April 8, 1974? ANSWER: $4,868.00

      “SPECIAL ISSUE NO. 5: What do you find from a preponderance of the evidence to be the manufactured value of the timber cut and removed on the land of Duane Smith and Jane Smith on or about April 8, 1974?
      Answer in Dollars and Cents, if any.
      Answer: $5,767.07

        “SPECIAL ISSUE NO. 6: What do you find from a preponderance of the evidence to be the manufactured value of the timber cut and destroyed on the land of Duane Smith and Jane Smith on or about April 8, 1974?
      Answer in Dollars and Cents, if any.
      ANSWER: $5,366.69

      “SPECIAL ISSUE NO. 8: Do you find from a preponderance of the evidence that Duane Smith and Jane Smith should recover exemplary damages?
      “ ‘Exemplary Damages’ means an amount which you may, in your discretion, award as an example to others and as a penalty or by way of punishment, in addition to any amounts which may have been found by you as actual damages.
      Answer ‘We do’ or ‘We do not.’
      ANSWER: We do
      “SPECIAL ISSUE NO. 9: What sum of money, if any, do you find from a preponderance of the evidence that Duane Smith and Jane Smith should be awarded as exemplary damages? Answer in dollars and cents.
      ANSWER: $4,500.00”

      . “SPECIAL ISSUE NO. 7: What amount of , money, if paid now in cash, do you find from a preponderance of the evidence would be the reasonable cost immediately after the damage, if any, of restoring said land substantially to the same condition in which it existed immediately before such injury, if any?
      “Answer: $1,380.00”


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    Gladys O’Neal JONES, Relator, v. The Honorable C. V. MILBURN, District Judge of the 70th Judicial District, Ector County, Texas, et al., Respondents.
    No. 6643.
    Court of Civil Appeals of Texas, El Paso, Texas.
    June 15, 1977.
    Rehearing Denied July 6, 1977.
    Svanas & Svanas, Gloria T. Svanas, Odessa, for relator.
    C. V. Milburn, District Judge, Larry R. Sinclair, City Atty., Odessa, for respondents.
   OPINION

OSBORN, Justice.

This is an original proceeding in which Gladys O’Neal Jones, Relator, seeks a Writ of Mandamus to compel the Honorable C. V. Milburn, District Judge, to permit her to prosecute an appeal in a civil case without paying the cost of appeal. Specifically, Relator seeks an order to require the District Clerk of Ector County to furnish a transcript and the Court Reporter for the 70th Judicial District Court to furnish a statement of facts without payment therefor by Relator, who claims to be a pauper.

Following a jury trial in which Relator sought damages from the City of Odessa for buildings which were demolished under the City’s Unsafe Buildings Ordinance, judgment was entered denying Relator any relief. The Relator filed an affidavit of inability to pay costs of appeal, and the City filed a contest to the affidavit. The Court had a hearing and the application to appeal as a pauper was denied.

A statement of facts of the hearing on the contest has been filed in this proceeding. Only Mrs. Jones testified. She and her sixteen-year old daughter now reside with her oldest daughter’s family in Fort Worth. Mrs. Jones and her minor daughter receive $86.00 per month from the Texas Department of Public Welfare. From this amount, she purchases food and makes some small payment on the utility bills of her married daughter.

Mrs. Jones said she has been disabled and has had no regular employment since 1969. She has no bank or savings account, no automobile, and no property other than the lot involved in this litigation. She has no relatives from whom she can borrow the money to pay for this appeal. She knew of no source from which she could borrow money.

With regard to the lot involved in this litigation, she said she owed taxes on it and that there was a suit pending involving a lien on the property. On cross-examination, she admitted she had made no specific efforts to raise money for the appeal and that she had made no effort to either sell the lot or borrow money against it. By reason of the appeal in Jones v. North American Acceptance Corporation, 442 S.W.2d 492 (Tex.Civ.App.—El Paso 1969, no writ), we are aware of an attempt to impose a lien for more than $4,000.00 upon this lot. Mrs. Jones testified that this lawsuit is still pending. The City has offered no evidence in rebuttal of the testimony of Mrs. Jones.

In Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 (1942), the Court said:

“Where, from the record as a whole, it really appears that a party is unable to pay the costs, or give security therefor, the court should unhesitatingly grant the relief prayed for. * * *
“ * * * In passing on the ability to pay costs, or give security therefor, and the right of a party to be exempted therefrom, the court must look to the facts as a whole in the light of the objects intended to be accomplished. Obviously, if a laborer was barely earning the necessities of life for himself and family, ordinarily he should not be required to mortgage his hand tools or household furniture in order to raise funds to pay the court costs. On the other hand, if a party has a credit rating that will enable him to borrow the money, or if he is earning a substantial income, although he is expending it as rapidly as it comes in, or if he owns an automobile or truck or other valuable property, although exempt from execution, which he could mortgage or otherwise dispose of and thereby secure the necessary funds without depriving himself and his family of the necessities of life, he should be required to pay the costs, or give security therefor.”

Applying that standard to the facts in this case, we conclude that the Relator is entitled to appeal under her pauper’s oath. Certainly, her small welfare check would not be adequate to support Mrs. Jones and her daughter. The monthly income was not adequate to repay any loan which she might have sought. Nor could she expect to obtain a loan on the lot with taxes due, a suit pending to foreclose a lien, and no income to repay a loan. In Ciulla v. Hardy, 431 S.W.2d 364 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ), the Court apparently concluded that there was no need to try to borrow from a lending institution where the relator had neither collateral nor means to repay a loan. Having examined the entire record, we conclude that the contest should have been denied.

The application for Writ of Mandamus is granted. The District Clerk and official Court Reporter are directed to prepare a transcript and statement of facts for use in the appeal from the above mentioned judgment. The Writ will issue only if one of the Respondents fails to comply with our directions.

ON MOTION FOR REHEARING

The Respondents have filed a motion for rehearing urging that we erred in holding that the contest to the pauper’s oath should have been denied, and that we erred in failing to hold that the trial Court abused its discretion when the trial Court sustained the contest to the affidavit of inability to pay the cost of appeal. The motion also contends that we erred in substituting our conclusion for the District Court’s conclusion concerning the question of whether Relator sustained her burden of proof.

We originally decided this case despite a somewhat contrary decision only two months earlier in the case of In re G_L_G_, 550 S.W.2d 716 (Tex.Civ.App.—Houston [1st Dist.] 1977). Following the decision by the Houston Court, the Relator filed another original mandamus proceeding, this time in the Supreme Court of Texas. In Goffney v. Lowry, 554 S.W.2d 157 (Tex.1977), the Court granted the application for mandamus and held that proof “that any individual is dependent upon the charity of the public afforded through the various welfare programs is, by itself, pri-ma facie evidence that the person is financially unable to pay the court costs or give security therefor.” We conclude that the proof that Mrs. Jones and her minor daughter receive only $86.00 per month from the Texas Department of Public Welfare shows that she is in fact destitute, and the fact that she and her daughter live with her married daughter establishes that she is dependent upon others for the necessities of life.

Thus, we conclude that the trial Court did abuse its discretion in sustaining the contest to the pauper’s oath. The Respondents’ motion for rehearing is overruled.


author: SPURLOCK, Justice.

text:
    R. K. A. et al., Appellants, v. STATE of Texas, Appellee.
    No. 17831.
    Court of Civil Appeals of Texas, Fort Worth.
    June 16, 1977.
    Rehearing Denied July 21, 1977.

      Allan K. Butcher, Miteff & Carter, and Don Carter, Fort Worth, for appellants.
    Tim Curry, Crim. Dist. Atty., Tarrant County, Marvin Collins, Chief of Appellate Section, and Candyce Howell, Asst. Crim. Dist. Atty., Fort Worth, for appellee.
   ON MOTION FOR REHEARING

SPURLOCK, Justice.

The motion for rehearing filed by the State of Texas is granted and the opinion of May 26, 1977, is withdrawn and our judgment of that date is set aside.

Petitioner, a minor, was certified to be tried as an adult for three acts of the grade of felony. He appeals that certification.

R. K. A. was first tried on the issue of his insanity at the time of the alleged acts. The juvenile court declared a mistrial after the jury was unable to reach a decision. R. K. A. then moved the court to initiate proceedings to order himself temporarily hospitalized for observation and treatment of mental illness. The motion was denied. The trial court denied him another hearing on the issue of the defense of insanity. The child did not ask for a hearing on the issue of fitness to proceed. The certification hearing which followed, in which all evidence from the sanity hearing was stipulated, resulted in an order binding the child over to the criminal district court to be tried as an adult.

We affirm.

The child appeals on four points of error. By the first three points, the child complains of being denied hearings on mental illness at the time of trial; sanity at the time of the alleged incident; and of lack of findings as to his responsibility for conduct as a result of mental disease or defect.

A careful reading of the statutes, Tex. Family Code Ann. §§ 55.02 and 55.05 (1975), reveals that these sections are applicable only in the event the child is to be tried as a juvenile on the issue of delinquent conduct or need for supervision. If he is certified to stand trial as an adult, then his sanity will be measured by the more onerous adult standards than by those applicable to juveniles. The insanity of an adult is determined by whether the accused “. . .as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.” Tex.Penal Code Ann. § 8.01 (1974).

The responsibility of a juvenile for delinquent conduct or conduct indicating a need for supervision is determined by whether, at the time of the alleged conduct, “. . . as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Tex.Family Code Ann. § 55.05 (1975).

The child has not been accused of either delinquent conduct or of conduct indicating a need for supervision. Since the delinquent conduct and the need of supervision statutes are not here applicable, it follows that the court was not required to make findings under them.

The confusion arises because there is another statute which the child had the right to invoke at any time: Tex.Family Code Ann. § 55.04 (1975). That statute requires that if the child’s fitness to proceed is in question, then a determination of that issue must be made separate from, and prior to transfer to criminal court or adjudication. Counsel for the child never prayed for such a hearing.

We overrule the first three points of error.

By his fourth point, the child urges the trial court erred in refusing his motion for the denial of the petition for certification at the time the State rested its case in chief in the certification hearing, and again at the close of all the evidence. By proceeding to put on evidence after his first motion was denied, the child waived that portion of his point of error. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App., Waco 1966, writ ref’d n. r. e). We therefore overrule that part of point of error no. 4, and deal with the second part, the re-urging of his motion at the close of all the evidence.

The statute governing waiver of jurisdiction and transfer to criminal court, Tex. Family Code Ann. § 54.02 (1975) states, in pertinent part:

“(d) Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.”

There can be no question from the record that this statute was complied with in all its aspects. The diagnostic study was done and was considered by the judge. In fact, he stated, in response to the child’s first motion, “Well, for the purposes of the record, the Court has read the prediagnostic report, and I do consider it, although, [sic] I am not sure whether or not it was introduced into evidence, in the previous hearing. Based on that, I will deny your motion.” (Emphasis supplied.)

The provisions of Tex.Family Code Ann. § 54.02 (1975) are mandatory. R.E.M. v. State, 532 S.W.2d 645 (Tex.Civ.App., San Antonio 1975), on appeal after remand 541 S.W.2d 841 (Tex.Civ.App., San Antonio 1976, writ ref’d n. r. e.). The clear implication is that the court must not only “order and obtain” a diagnostic study, but must also consider it, as the State urges in its brief. As we have seen, the trial judge did consider the study in this case; in fact he relied on it in making his decision.

The diagnostic study considered by the trial court is before us by stipulation of the parties approved by the trial court. This report is very comprehensive and includes original reports of Dr. H. E. Bonham, M.D., Dr. Swen Helge, Ph.D., Dr. John R. Price, Ph.D., Mr. Jerry M. Wood, Supervisor of Intake, Juvenile Detention Center, Mr. Wesley E. Robinett, Assistant Probation Officer, Tarrant County, a detention evaluation prepared from daily observations by Mr. Bill Austin, Program Director of the Juvenile Department and Mr. Mel Brown, Jr., staff member.

The court’s judgment is supported by sworn testimony adduced at the trial, testimony of three days’ duration by experts on the issue of insanity, fact witnesses including teachers and those with whom the child came in contact in his daily life.

The order of the juvenile court waiving its jurisdiction over the child and certifying him for trial as an adult is affirmed.


author: SHANNON, Justice.

text:
    WESTERN RESOURCES LIFE INSURANCE COMPANY et al., Appellants, v. Alton R. GERHARDT et al., Appellees.
    No. 12552.
    Court of Civil Appeals of Texas, Austin.
    June 22, 1977.
    Rehearing Denied July 20, 1977.

      Edward C. Small, Dennis Reese, Small, Craig & Werkenthin, Austin, for appellants.
    J. Winston Chapman, J. Terry Weeks, Levbarg, Weeks & Chapman, Austin, for appellees.
   SHANNON, Justice.

This is a fraud case. The important question concerns the application vel non of the doctrine of de facto merger.

Appellees sued American Business and Commercial Life Insurance Company and appellants in the district court of Travis County for actual and exemplary damages. After trial to a jury, the district court entered judgment for appellees for $14,070 in actual and exemplary damages.

Appellees’ cause of action arose from the sale to appellees of six “ABC-400” insurance contracts of American Business and Commercial Life Insurance Company. In their trial petition appellees pleaded that agents for the insurance company offered them an opportunity to invest in the insurance company by purchasing the ABC-400 contracts. Appellees alleged that the agents represented that this investment would reap tremendous profits beyond the benefits afforded by the life insurance which was a part of the contract. The opportunity to purchase the ABC-400 contract supposedly was open for only a short time and the opportunity to purchase the contracts was available only to a limited number of investors. The appellees allegedly were told that they were “founding” investors in the insurance company and that their investment was for capital gain and not merely to buy life insurance. Appellees pleaded further that the statements made by the insurance agent were false and misleading and the insurance company knew or should have known that the statements were false.

Appellees pleaded further that on March 1,1973, American Business and Commercial Life Insurance Company merged with appellant Western Resources Life Insurance Company. Appellees averred that by reason of the merger, W. R. Life became responsible for the fraudulent acts committed by ABC in the sale of the ABC-400 contracts.

W. R. Life denied that the insurance contracts were sold by reason of any fraud or misrepresentation. W. R. Life further asserted that it had not assumed any responsibility for acts of the selling agents of ABC.

The court’s charge contained fifteen special issues. The jury answered the issues in a manner to support a judgment for fraud against ABC. The jury answered further that each appellee should be awarded exemplary damages in the sum of $12,500. In the judgment the district court awarded exemplary damages in a sum twice the amount of each appellee’s actual damages.

The parties agreed that the question of whether or not appellants were liable for the acts of ABC’s selling agents was a question of law for the court’s determination.

By the entry of the judgment against appellants, the district court necessarily determined, as a matter of law, that appellants were liable for the tortious acts of ABC’s selling agents. That determination is the foundation for the primary question on appeal. By five points of error appellants maintain that they are not liable for the torts of the selling agents of ABC.

The important facts concerning the dissolution arrangements of ABC are as follows. In March, 1973, ABC entered into an agreement with W. R. Life whereby ABC would transfer all of its assets to W. R. Life in exchange for 346,240 shares of W. R. Corp. stock. ABC was to dissolve and distribute its assets, the W. R. Corp. stock, to its shareholders. ABC was to retain $25,000 to pay the expenses of dissolution, with any unused balance to be remitted to W. R. Life. The agreement was that ABC’s contingent liabilities were not being assumed by W. R. Life.

Pursuant to the agreement between the corporations, the board of directors of W. R. Life was to be increased from nine to fifteen members with the six new directors to be designated by ABC. W. R. Corp. also agreed to place three of ABC’s directors on its board. In addition, W. R. Corp. stated that it intended to affiliate ABC’s agency managers and agency force with W. R. Life.

Appellants urge that the above described transactions effectuated a reinsurance agreement pursuant to Tex.Ins.Code Ann. § 3.10 (1963). Appellants argue further that appellees’ remedy is found in Tex.Bus. Corp.Act Ann. § 7.12 (1956) which gives appellees the right to pursue their claims and pursue ABC’s assets by filing suit against the directors, officers and stockholders of ABC to whom the assets of the corporation were distributed.

Appellees urged, and the district court necessarily concluded, that the above transactions resulted in a de facto merger of ABC and W. R. Life.

When one corporation transfers or sells its assets to another corporation, the purchaser is not liable usually for the debts and liabilities of the transferor, including those liabilities arising from the tortious conduct of the transferor. Nevertheless, there are several exceptions to that rule which are recognized in most jurisdictions. The purchasing corporation cannot escape liability for the debts and torts of the selling corporation wherein (1) the purchaser expressly or impliedly assumes the debts; (2)the transaction is tantamount to a consolidation or merger of the seller and purchaser; (3) the purchasing corporation is merely a continuation of the selling corporation; (4) the transaction is entered into fraudulently to escape liability; or (5) the purchaser did not pay adequate consideration for the sale or transfer. Menacho v. Adamson United Co., 420 F.Supp. 128 (D.N.J.1976). The proof of any one of the exceptions results in liability attaching to the purchasing corporation. McKee v. Harris-Seybold Co., 109 N.J.Super. 555, 264 A.2d 98 (1970).

In the case at bar, W. R. Life in the agreement expressly disclaimed the assumption of ABC’s tort liability. In addition, appellees never contended that the purchase price was inadequate or that the transaction was entered into fraudulently to escape liability. Appellees did make an effort to prove that the new arrangement was no more than a continuation of the old business. It is not necessary for us to determine whether or not appellees were successful in that effort for the reason that an overview of the entire transaction has convinced us that the effect was a merger of the two corporations, and not, as appellants insist, merely a reinsurance agreement.

The factors which are indicative of a de facto merger are set out in Shannon v. Samuel Langston Co., 379 F.Supp. 797 (W.D.Mich.1974). Those factors are summarized below.

(1) There is a continuation of the enterprise of the seller corporation, so that there is a continuity of management, personnel, physical location, assets, and general business operations.
(2) There is a continuity of shareholders which results from the purchasing corporation for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller corporation so that they become a constituent part of the purchasing corporation.
(3) The seller corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible.
(4) The purchasing corporation assumes those liabilities and obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller corporation.

The imposition of liability upon the succeeding corporation is grounded upon the notion that no corporation should be permitted to commit a tort and avoid liability through corporate transformations or changes in form only. If a corporation continues to exist, or is merged into another corporation, the policy is that liability should be retained.

When the transaction between W. R. Life and ABC is examined, it is seen that every factor in a traditional corporate merger, as well as in a de facto merger, is present. ABC transferred all of its shares and assets to W. R. Life in consideration for shares in W. R. Corp. W. R. Life assumed all of the contractual obligations of ABC. ABC was absorbed by W. R. Life and ABC was later dissolved. The officers and directors of both corporations were joined in an enlarged board of directors. W. R. Life expressed the intent that ABC’s then present personnel would be retained in the employment of W. R. Life. The shareholders of ABC surrendered their shares for shares in W. R. Corp.

The most important factor in determining whether a transaction is a de facto merger seems to be whether the consideration for the sale of the assets was for cash or shares of stock in the surviving corporation. If the purchasing corporation paid for the assets by issuing stock to the seller corporation, the transaction is usually considered a de facto merger. Shannon v. Samuel Langston Co., supra; Applestein v. United Board and Carton Corp., 60 N.J.Super. 333, 159 A.2d 146 (1960); Farris v. Glen Alden Corp., 393 Pa. 427, 143 A.2d 25 (1958). To the contrary, if the transfer of assets is paid for in cash, the transaction is generally considered to be a bona fide sale of assets without tort liability following the purchasing corporation. Menacho v. Adamson United Co., supra; Kloberdanz v. Joy Manufacturing Co., 288 F.Supp. 817 (D.Colo.1968); McKee v. Harris-Seybold Co., supra; American Surety Co. v. M-B Ise Kream Co., 38 S.W.2d 118 (Tex.Civ.App.1931), aff'd, 65 S.W.2d 287 (Tex.1933).

In the case at bar, the purchasing corporation paid for the assets by issuing stock to the seller corporation. Accordingly, we have concluded that the transaction was a de facto merger, and the purchasing corporation assumed ABC’s tort liability.

Appellants argue that even in the event that it is held that they assumed the tort liabilities of ABC, that liability should not include liability for exemplary damages. Appellants direct our attention to the fact that appellees made no contention or produced no proof that the transactions were sham and were entered into by the parties for the purpose of cutting off or defrauding third parties. Appellants say that to permit appellees to obtain exemplary damages would allow them a windfall in that they would have access to a larger fund than they would have had, had they recovered only against ABC, or had ABC been placed into receivership. Furthermore, appellants maintain that the punishment meted out by exemplary damages would fall upon the wrong parties, all of appellants’ stockholders. Appellants claim that the only deterrent effect would be that, in the future, companies would be reluctant to purchase the assets of other insurance companies, an effect contrary to public policy.

We admit the logic of appellants’ argument with respect to their liability for exemplary damages, but the law seems to be contrary to their position. The successor corporation assumes all responsibility for all of the outstanding tort claims of the merging corporations, including exemplary damages. Investors Preferred Life Insurance Co. v. Abraham, 375 F.2d 291 (10th Cir. 1967); Thomas v. E. J. Korvette, Inc., 329 F.Supp. 1163 (E.D.Pa.1971), rev’d on other grounds, 476 F.2d 471 (3rd Cir. 1973).

From what has been written, it is obvious that we disagree with appellants’ position as to Tex.Bus.Corp.Act Ann. § 7.12 (1956). In our opinion, sec. 7.12 is cumulative of other remedies and is not an exclusive remedy.

We have discussed the important points in the case. The balance of the points of error and the cross-points have been considered, and as they have no merit, those points are overruled.

The judgment is affirmed.

Affirmed.

      . Appellees are Alton R. Gerhardt, Hilliard B. Smith, Larry G. Walker, Ken L. Kruemcke, Tommy F. Howell, and Kerry L. McAlister.

      . American Business and Commercial Life Insurance Company will be referred to in this opinion usually as “ABC.”

      .Appellants are Western Resources Life Insurance Company and Western Resources Corporation. We will usually refer to Western Resources Life Insurance Company as “W. R. Life” and Western Resources Corporation as “W. R. Corp.”


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    CASHWAY BUILDING MATERIALS, INC., Appellant, v. Ralph McCURDY et ux., Appellees.
    No. 6545.
    Court of Civil Appeals of Texas, El Paso.
    June 22, 1977.
    Rehearing Denied July 20, 1977.
    Amended Motion for Rehearing Denied July 20, 1977.

      Edwards, Belk, Hunter & Kerr, John W. Welsh, Jr., T. 0. Gilstrap, Jr., El Paso, for appellant.
    Law Offices of L. Taylor Zimmerman, P. C., L. Taylor Zimmerman, Edelmira Navarro, Jose E. Troche, Dick Stengel, El Paso, for appellees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

The principal question presented on this appeal is whether “vendor” includes one who sells the services of others under rules of a prize contest which excluded employees and vendors of the sponsor.

In conjunction with the grand opening of a new store, the Appellant, Cashway Building Materials, held a prize contest and awarded prizes to persons whose names were drawn. Appellee McCurdy’s name was drawn, but Cashway refused him the prize because he was a security guard in their store. They held a second drawing and gave the prize to another person. A rule of the contest provided that no employees, their relatives, or vendors of Cashway may register or be eligible to win a prize. Appellant contracted for such security guards to be furnished them by an independent contractor named Security Guard Service, Inc. Based on a jury finding that Appellee was not an employee of Cashway, the trial Court awarded judgment to the Appellee for the value of the prize of a $7,498.00 truck and camper. We are of the opinion that the judgment must be reversed on the basis that the Appellee was an employee of a vendor as a matter of law.

As indicated, the trial Court submitted an issue as to whether Appellee was an employee of Cashway, but refused to submit an issue on the question of whether he was an employee of a vendor of Cashway. Appellant assigns error in that and also contends that the trial Court erred as a matter of law in not directing a verdict for the Appellant because the undisputed facts reflect that Appellee was an employee of a vendor and, therefore, a vendor, making him ineligible to accept a prize. It is undisputed that the Appellee was an employee of Security Guard Service, Inc., and that Security Guard Service, Inc. furnished guards, including Appellee, for Appellant under contract.

The Vice President of Appellant who wrote the rules of the contest testified at length as to their purpose and the reasons for excluding employees and vendors. He testified that the reason for having the contest was to promote goodwill and good public relations and to get customers to come to Cashway; that the reasons for the rules were to prevent employees, vendors, or anyone else having an unfair advantage from winning the contest when they work for Appellant; and that the contest was for the benefit of the customers and they wanted to insure that a customer would win, and no one could win that had an unfair advantage. To enter the contest, one filled out a blank form and deposited it in the barrel from which the winning tickets would be drawn. These blanks were available throughout the store and a person could enter as many times as he wished. There were some 250,000 entries, and out of that number Appellee and his wife each won a prize.

The evidence was that in addition to employees, there were other groups who had access to the contest blanks who were in a position to take unfair advantage, and it was the desire of the Appellant to eliminate those people. Manufacturers and vendors who did business with Appellant sent their representatives to work as salespersons in the store during the grand opening, and it was common practice for these representatives of vendors to work from a few days to as long as two or three weeks teaching the regular employees how to sell their products and waiting on customers just like the regular employees. Others who fell within the definition of being in a position to take an unfair advantage were employees of those who furnished services to Appellant under contract; the security guards were one such group; another was a maintenance company that kept the floors and whose employees were in the store both during the day and at night; and there was a sanitation contractor whose employees maintained the restrooms and sanitized the building. With this explanation of the rules, it is evident that the intent was that vendors should be excluded, and that there was no distinction between the vendor of “goods” and the vendor of “services.”

In construing the word “vendor” as used in the contest rule, we are of the opinion that we must consider the purpose of the rule, the object sought to be accomplished by it, and the context in which the term was used. We have found no Texas case construing a contest of this nature, but in reaching the above decision we follow the reasoning of a Missouri case, Krueger v. Elder Mfg. Co., 260 S.W.2d 349 (Mo.App.1953). In announcing that rule, the Missouri Court was construing the word “employee,” where, as here, the rule excluded employees. The Court said:

“ * * * the rule was designed to increase public confidence and encourage wide participation in the contest by removing any possible suspicion of fraud or collusion on the part of those conducting the contest. Considered in this background, it is apparent that the word ‘employees’ should be interpreted in a broad and nontechnical sense without imposing restrictions and limitations which would emasculate the rule and defeat its purpose.”

Applying that reasoning, the word “vendor” should be construed to include both those who sell goods and those who sell services, for under the purposes of the rules there is no valid distinction between the two. Aside from such rules of construction, we are of the opinion that the word “vendor” standing alone is not limited to a seller of goods.

While the rules of the contest required Appellee to establish that he was neither an employee nor a vendor, the trial Court required only proof that he was not an employee. The Court apparently construed “vendor” as limited to one who sells goods or property. We are of the opinion that the word “vendor” standing alone, as it is here, could include a vendor of services as well as a vendor of goods. Appellee relies on the case of Linen Service Corporation of Texas v. City of Abilene, 169 S.W.2d 497 (Tex.Civ.App. Eastland 1943, writ ref’d). There, in construing the word “vendor” as used in the City Ordinance, the Court said that the word “vendor,” and its synonym “seller,” “does not include anyone who does not sell or offer for sale any property of any kind. It does not include anyone who for a consideration renders only services for another, involving no transfer of the ownership of any property.” The use of the word “vendor” in our case is different; the Abilene case involved one performing services, while in our case we have a vendor of services, one engaged in selling the services of others. Security Guard Service, Inc. was selling the services of Appellee and other guards to Appellant. Black’s Law Dictionary defines “vendor” as a person who transfers property by sale, but Black’s Law Dictionary defines its synonym “seller” as one who sells anything. Also persuasive is the fact that the Uniform Commercial Code, Article 5069-6.01, Tex.Rev.Civ.Stat.Ann., defines “seller” as “a person regularly and principally engaged in the business of selling goods or services to retail buyers, but does not include the services of a member of a learned profession.” Totally unrelated to the case at bar, but indicative of the fact that “vendor” means more than the seller of goods, is that the Legislature has passed statutory definitions of “vendor of hospital services,” Tex.Rev.Civ.Stat.Ann. art. 695j, Sec. 1(c); “vendor of medical services,” art. 695j, Sec. 1(b); and “vendor of nursing care,” art. 695j, Sec. 1(f). We conclude that the word “vendor” standing alone, in its ordinary meaning, includes a vendor of services as well as a vendor of goods, and that the trial Court erred in limiting it to a vendor of goods in this case.

We have examined Appellant’s other points of error and overrule them.

The judgment of the trial Court is reversed and judgment here rendered that Appellee take nothing.


author: WARD, Justice.

text:
    Karl HARDY, Appellant, v. Dr. B. K. FLEMING, Appellee.
    No. 6562.
    Court of Civil Appeals of Texas, El Paso.
    June 22, 1977.
    Rehearing Denied July 20, 1977.

      Miller, Gann & Perdue, Jim M. Perdue, Andrew L. Todesco, J. Richard Cheney, Houston, for appellant.
    Bailey, Williams, Westfall, Lee & Fowler, James A. Williams, William Dixon Wiles, Dallas, for appellee.
   OPINION

WARD, Justice.

This is a medical malpractice case where summary judgment was rendered for the Defendant Doctor. Prior to the present suit, the Plaintiff had lost a workmen’s compensation suit which was based on the same heart attack which he now claims was caused by the Doctor’s negligence. The principal question concerns the correctness of the trial Court’s action in sustaining the Defendant’s plea of collateral estoppel where the Defendant asserting the plea was not a party or in privity with a party to the earlier litigation. We affirm.

On August 6, 1971, the Plaintiff, Karl Hardy, while at home suffered an apparent heart attack. He immediately placed himself under the care of the Defendant, Dr. B. K. Fleming, and was thereafter treated by that Doctor for about a month. On September 10th, the Defendant advised the Plaintiff that he could return to full duty work at the Columbian Carbon Black Company at Seminole. The Plaintiff’s employment was physically strenuous and required that the Plaintiff sack carbon black, put the sacks on pallets, and move them to a cooler. On September 12th, the Plaintiff returned to his employment on a full duty basis, but, after only a few hours of work, he experienced additional heart problems and, according to him, suffered another heart attack.

Hardy then filed his claim for compensation based on this latter attack, and thereafter instituted suit to recover his benefits under the Texas Workmen’s Compensation Act by cause entitled “Karl Hardy v. Insurance Company of North America,” Cause No. 6463 in the District Court of Gaines County, Texas. Upon trial before a jury, the Court submitted Special Issue No. 1 to the jury inquiring whether Mr. Hardy had sustained a heart attack on September 12, 1971. According to the judgment rendered, the finding to this issue was that the Plaintiff, Karl Hardy, did not sustain a heart attack on September 12, 1971. Based upon that finding, judgment was entered that Hardy take nothing from the Insurance Company of North America. That judgment, which was in July, 1973, has become final.

Hardy next filed this present suit in the District Court of Gaines County to recover his alleged damages sustained from being under the care of Dr. Fleming during August and September, 1971. This malpractice suit was based upon the alleged negligence of the Doctor in: (a) advising Mr. Hardy that he could return to work on a full-time basis when it was not safe to do so; (b) failing to advise Hardy of the nature and extent of the damage done to his heart and of his physical condition; (c) failing to perform such tests and procedures to determine the nature of the damage and injuries done to Hardy’s heart as would have been done by a competent and ordinary prudent physician; and (d) failing to refer Hardy to an appropriate medical specialist. The Plaintiff further alleged that he returned to work on the date authorized by Dr. Fleming and, “within four hours, suffered a massive heart attack brought on by the work and exertion associated with his employment.”

By way of answer, the Doctor has pled the above matters regarding Cause No. 6463, the submission of the special issue regarding the heart attack on September 12,1971, the finding by the jury that Hardy did not sustain the heart attack, the final judgment, and that because of the principle of estoppel by judgment, Hardy is now prohibited in the present case from contending that he sustained a heart attack on September 12, 1971. The Doctor filed his first amended motion for summary judgment setting forth two points of law: (1) the doctrine of collateral estoppel bars the present action; and (2) there is no genuine issue of proximate causation in the case. The summary judgment proof consisted of the depositions of the two parties, certified copy of the judgment in Cause No. 6463, the Defendant’s answers to the Plaintiff’s interrogatories, and the depositions of Dr. William Gordon, Dr. J. B. Jensen, and Dr. Moses Muzquiz, Jr. As stated, the trial Court entered summary judgment for the Defendant on his motion which advanced the two grounds.

The Defendant’s first point attacks the summary judgment on the ground that the doctrine of collateral estoppel is not applicable in this case. The Plaintiff points out that Dr. Fleming had no relationship with the Columbian Carbon Black Company, nor with the Insurance Company of North America. Thus, the issue to be determined is whether Dr. Fleming, who is a stranger to the prior suit, may assert the doctrine of collateral estoppel in this subsequent independent suit brought by the same Plaintiff.

The parties recognize the authorities and agree as to the principles. They agree that the tendency of the Courts has been toward an abandonment of the requirement of mutuality and the retention of the requirement of privity only to the party against whom the plea of collateral estoppel is made in the second case. They disagree as to the present rule in this State. The problem is ably discussed in Stephenson, “The Doctrine of Equitable Estoppel under Texas Law,” 36 Tex.B.J. 45 (1973). See “Estoppel by Judgment — Mutuality Need,” 31 A.L. R.3d 1044 (1970).

Originally, mutuality was essential to the invocation of collateral estoppel. Kirby Lumber Corporation v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946). However, the requirement of mutuality is nowhere mentioned in the last definition of collateral estoppel made by the Supreme Court where it was stated:

“The rule of collateral estoppel, or as sometimes phrased, estoppel by judgment, bars relitigation in a subsequent action upon a different cause of action of fact issues actually litigated and essential to a prior judgment. It has been said that the rule rests upon equitable principles and upon the broad principles of justice. * * * The rule is generally stated as binding a party and those in privity with him. * *

Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971). There, Wanda Petroleum Company had successfully defended a negligence case brought by the Porters. Mrs. Benson then brought her suit for damages for her injuries and those of her deceased husband who owned the automobile and which had been driven by the Porters. The plea of collateral estoppel was held inapplicable to Mrs. Benson’s suit as Mrs. Benson was not a party to the former action, had not participated in or exercised any control over the other trial, nor did she have any right to do so, and was not shown to have any beneficial interest in recovery of damages for personal injuries on behalf of the plaintiffs in the other trial. The Supreme Court did not apply the doctrine of mutuality, which would have ended it, but relied instead on the due process test as was originally done in the leading case of Bernhard v. Bank of America Nat. Trust & Savings Ass’n., 19 Cal.2d 807, 122 P.2d 892 (1942). That case was cited by Justice Steakley in his opinion. See also Seguros Tepeyac, S. A., Compania Mexicana v. Jernigan, 410 F.2d 718 (1969), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181. There, the Fifth Circuit, in passing on Texas law and in ignoring any requirement of mutuality, refers to a suggestion that mutuality as an element of collateral estoppel is “a dead letter.”

The Plaintiff, Karl Hardy, the one against whom the plea of collateral estoppel is asserted, was the party Plaintiff to the prior adjudication and he lost on his claim that he sustained a heart attack on September 12, 1971. No useful public policy is served by permitting him to relitigate that identical issue in the present suit. Seguros Tepeyac, S. A., Compania Mexicana v. Jernigan, supra, 90 S.Ct. at 727. Dr. Fleming, the one now asserting the plea, was not a party or in privity with a party to the prior litigation. There is no compelling reason that such be required and, in this fact sitúation, no satisfactory reason for any requirement of mutuality. Bernhard v. Bank of America Nat. Trust & Savings Ass’n, supra. The Plaintiff’s first point is overruled.

The Plaintiff’s second point is a general one asserting that the summary judgment evidence on file raises genuine issues of material fact that were not concluded by the jury findings in the previous suit. The Plaintiff first asserts that the granting of the summary judgment on the apparent ground that there was no genuine issue of proximate cause was error. The Defendant relies in the main upon the deposition testimony of the Plaintiff’s witness, Dr. J. B. Jensen, who stated that in his opinion none of Hardy’s problems were caused by his return to work. As announced in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970), the summary judgment burden was upon the defendant to establish as a matter of law that there was no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Assuming that Dr. Jensen was the Plaintiff’s witness, his opinion testimony on the issue of proximate cause will not support the summary judgment. Gibbs v. General Motors Corporation, supra.

But that still does not get the Plaintiff any relief because we have previously upheld the plea of collateral estoppel on the issue of “heart attack,” an essential element to the Plaintiff’s present case. However, that plea, unlike the broader ones of merger and bar, is limited to the point or question actually litigated and determined in the previous action and does not apply to what might have been litigated and determined. Because of this, the Plaintiff makes his final argument that a judgment based on findings of negligence against the Doctor in attending Mr. Hardy would be sustained by a jury finding that on September 12th, Hardy suffered an aggravation of an underlying heart condition without it being a heart attack. That is to say that the aggravation was caused by the negligence of the Doctor in permitting his premature return to full duty heavy work at the Carbon Company. We have considered this argument, but there are neither pleadings nor proof supporting this theory in the case. Plaintiff’s pleadings are that he suffered a massive heart attack. The summary judgment proof either sustains heart attack on August 12th brought on by the fault of the Doctor, or that at all times Hardy was merely suffering from heart disease totally unconnected to a heart attack which disease was not aggravated on September 12th. The jury finding of heart attack in the previous suit is the same issue raised in the present suit and its redetermination is prevented by the plea of collateral estoppel.

The judgment of the trial Court is affirmed.


text:
    Howard W. OETTING, Appellant, v. FLAKE UNIFORM & LINEN SERVICE, INC., Appellee.
    No. 17814.
    Court of Civil Appeals of Texas, Fort Worth.
    June 23, 1977.

      Gibson, Darden & Hotchkiss, and Tony Hotchkiss, Wichita Falls, for appellant.
    Sherrill, Pace, Rogers, Cosnoe & Morrison, and Lonny D. Morrison, Wichita Falls, for appellee.
   OPINION

SPURLOCK, Justice.

This is a suit against Howard W. Oetting as guarantor of the obligations of The Baker Corporation under two garment rental contracts with Flake Uniform & Linen Service, Inc. Baker Corporation failed to pay its monthly obligation and Flake Uniform obtained judgment for liquidated damages. Oetting appeals on the ground the contract provision for liquidated damages is unenforceable because it provides for a penalty.

We affirm.

This suit originally was brought by Flake Uniform against The Baker Corporation, and Howard W. Oetting, Tommy Baker and Maurice Baker, individually. The Baker Corporation became insolvent and ceased doing business and the plaintiff was unable to serve either of the two Bakers who were dismissed from the suit. Baker Corporation as customer and Flake Uniform as supplier entered into an original garment rental contract on March 13, 1972, and a second contract dated February 10, 1975. In June, 1975, the parties entered into an amendment to the garment rental contract and a guaranty agreement. In summary form, the guaranty agreement recited that Baker Corporation was in default in various sums of money under the terms of existing contracts. The parties agreed to the amount of these obligations and that such indebtedness had matured and also agreed to pay attorney fees but provided that these past due installments should be paid in six monthly installments.

The other parties to the suit guaranteed the payment of these obligations. A third cause of action was for the payment of various checks that had been paid for this service which had been dishonored by the bank. The fourth cause of action was for the sum of $15,495.66 as liquidated damages for the loss of profits for the balance of the term of the rental agreement. The fifth cause of action was for the failure to return to plaintiff uniforms that had been supplied to The Baker Corporation, and the sixth cause of action was for attorney fees as provided for in the contracts.

After Oetting had been served and answered, Flake Uniform filed detailed request for admissions covering the entire transactions in all the matters in controversy and included in said request for admissions a request that Oetting admit the allegations of fact in each paragraph of plaintiff’s petition. These were each by separate request.

Oetting did not answer the request for admissions and a motion was filed for an order deeming the request for admissions to be admitted. This was not contested and the court rendered judgment and signed an order deeming admitted all the request for admissions and allegations contained in plaintiff’s trial pleadings.

Flake Uniform filed a motion for partial summary judgment. The court granted this summary judgment for all sums of money due under the contracts and for services that had theretofore been rendered. This was in the sum of $4,860.77.

There was no dispute concerning the provision for liquidated damages for the breach of the contract from the date of its termination, because of non payment of the monthly service charge that would accrue in the future, until the end of the term of the contract. This sum was in the amount of $15,495.66 plus interest and attorney fees. The remainder of the case was then tried before the court without a jury and resulted in the court making the partial summary judgment final and incorporating it into the final judgment and awarded Flake Uniform 85% of the amounts it would have received had the contract been fully performed after the date it was terminated because of the non payment of the monthly sums due, plus all amounts owing before the termination, plus $3,174.37 attorney fees and interest.

No findings of fact or conclusions of law were filed and the record does not reflect that any were requested. Therefore, if there is any legal theory supported by the evidence on which to affirm, this court must do so. Smitheal v. Smitheal, 518 S.W.2d 842 (Tex. Civ. App., Fort Worth 1975, writ dism’d), cert. denied, 423 U.S. 928, 96 S.Ct. 277, 46 L.Ed.2d 256.

These contracts provide for actual damages. Both contracts show on their face that the ascertainment of damages is difficult, at best. The defendant, by both allegation and proof, must raise the issue and assume the burden of proving the amount of the actual damages for the purpose of showing an absence of approximation between the actual loss and the stipulated sum. Smith v. Lane, 236 S.W.2d 214 (Tex. Civ. App., San Antonio 1950, no writ). See also Southern Plow Co. v. Dunlap Hardware Co., 236 S.W. 765 (Tex. Civ. App., Dallas 1922, no writ); Walsh v. Methodist Episcopal Church, 212 S.W. 950 (Tex. Com. App. 1919, jdgmt. adopted).

It follows then that plaintiff need not allege or prove actual damages where it cannot be said that the damages were certain, apparent or ascertainable. Pippin Bros. v. Thompson, 292 S.W. 618 (Tex. Civ. App., Waco 1927, writ dism’d); Schwarz v. Lee, 287 S.W. 519 (Tex. Civ. App., Fort Worth 1926, writ dism’d); McElroy v. Danciger, 241 S.W. 1098 (Tex. Civ. App., Amarillo 1922, no writ).

In Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952), the court stated that to be enforceable as liquidated damages the damages must be uncertain and a stipulation must be reasonable. This must have existed at the time when the contract was executed. What the courts really do, in this type of case, is to permit the parties to estimate in advance the amount of damages, provided they adhere to the principle of just compensation. That court then stated: “Restatement of Contracts, Sec. 339, accurately expresses the rule as follows:

“ ‘(1) An agreement, made in advance of breach fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless

“ ‘(a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and

“ ‘(b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation.’ ”

Oetting assigns only two points of error to the effect that the liquidated damage provision is unreasonable in view of the nature of the several breaches upon which it is possible for it to become operative and it is unreasonable due to the amount of damages stipulated.

Paragraph A of the General Terms and Conditions of the contract provides, in pertinent part, “. . . Upon the failure of the Customer to pay Supplier as set out above, Supplier may, at its option, terminate this Agreement and, if Supplier so elects, then the provisions of paragraph D below shall apply. . . .”

Paragraph D provides:

“Inasmuch as the breach of this Agreement by Customer will cause a serious and substantial damage to Supplier, and because it will be difficult if not impossible to prove the amount of such damage, Customer agrees that in case of breach of this Agreement by failure to pay Supplier as agreed, or by reason of any other breach on the part of Customer, it will pay to Supplier within ten (10) days after the date of termination all accrued charges for garment rentals incurred prior to the date of termination together with an additional amount of money equal to 85% of the Rental Charges which Customer would have been obligated to pay Supplier for garment rental from the date of termination until the end of the existing Contract Period as liquidated damages; such sum being agreed upon by the Supplier and by the Customer as the amount which Supplier will be damaged by breach of this Agreement on the part of Customer.”

It is clear that Paragraph D, the liquidated damage provision, can only be invoked in the case of termination of the entire contract, since the measure of damages is 85% of the charge if performed, after the date of termination until the end of the contract period. There is no provision allowing termination of the contract, except in paragraph A, in the case of breach by failure to pay. Therefore, the liquidated damage provision can only come into play if: (1) the customer fails to pay as agreed; and (2) the supplier terminates the contract.

It is true that paragraph D also recites “. . . or by reason of any other breach on the part of Customer, . . .” but that appears to have been inserted in an abundance of caution, since termination must occur, and can only occur on nonpayment. The clause is mere surplusage, and can have no effect. Only the most major breach of all, nonpayment, can trigger paragraph D, and liquidated damages. This was not the situation in Stewart v. Basey, supra, where the breach was trivial.

We overrule point of error no. 1.

The judgment recites that “. . . the liquidated damage provision set forth in the Garment Rental Contract between the parties is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. . . ”

As noted above, that judgment must be affirmed if it can be upheld on any legal theory supported by the evidence. Further, we are obliged to consider only that evidence which tends to support the court’s finding, disregarding all that which is opposed to it. Smitheal v. Smitheal, supra; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).

The only witness who testified was Leon Edward Flake, who is president of plaintiff’s corporation. In order to service the Baker contract, Flake had to obtain the sizes of the employees who were going to use the uniforms; buy new pants, shirts and uniforms; place thereon the name of the company, the name of the employee and other material; and replace them when they became worn and when employees would terminate and were replaced by other employees. He had a vast stock of used uniforms which he valued at 5<f each. He attempted to replace worn uniforms with used clothing but, if he could not, the new ones cost approximately $12.50 each. These uniforms were picked up by a route man and the laundry was done in lots so that each driver’s entire pickup load of clothing was washed in one machine, no matter what size the load. Flake operated several companies, including a chemical company and unrelated businesses, out of his central place of business. His route man serviced an account across the street from Flake Uniform. His route men were on salary. His bookkeeping was done by salaried personnel for this business and other unrelated businesses. Their salary remained the same after the Baker account was terminated. There was no difference in his cost of operation or his overhead after the Baker account was terminated. The major cost was a “front-end” cost, in that the uniforms were purchased and sized; the emblems and advertisement were purchased and placed thereon; the collars and waistbands were taped for identification; and the salesmen were paid a commission when the contracts were obtained.

Flake further testified that the fact that The Baker Corporation dropped out didn’t cause his cost to go down any. “My revenue just ceased . . . from that particular account.”

Under the facts in this case it would be very difficult to determine in advance what actual damages would be sustained as a result of Baker Corporation’s failing to pay its rental contract and the contract then having to be terminated.

We have examined with care the cases cited in support of the contentions made by Oetting. In each instance, we concluded that the authorities relied upon by Oetting are distinguishable from the cases we consider controlling.

We hold that the stipulations for liquidated damages are reasonable and find that, when the contract was made, the actual damages were uncertain. Any attempt to establish the actual damages would be fraught with such uncertainties and difficulty as to require this court to sustain the agreements in this case for liquidated damages. Similar contracts for liquidated damages have been approved in Blakeway v. National Credit Corporation, 439 S.W.2d 155 (Tex. Civ. App., Austin 1969, writ ref’d n.r.e.); Blakeway v. General Electric Credit Corporation, 429 S.W.2d 925 (Tex. Civ. App., Austin 1968, writ ref’d n.r.e.); Bowen v. Virginia Lee Candies, 44 S.W.2d 502 (Tex. Civ. App., Texarkana 1931, no writ); Hyde v. Claude Neon Federal Co., 157 S.W.2d 952 (Tex. Civ. App., Eastland 1941, writ dism’d); White v. Wilbanks, 144 S.W.2d 941 (Tex. Civ. App., Amarillo 1940, no writ); Liberty Sign Co. v. Newsom, 426 S.W.2d 210 (Tex. 1968).

Under the undisputed facts in this case reflecting that there was practically no decrease in expenses of operation of the supplier and the difficulty of ascertaining the actual damages, the finding of the court that 85% of the rental charges that Baker would have paid, if he had fully performed the contract is a reasonable forecast of just compensation for the harm that was caused by the breach and that this harm was incapable or very difficult of accurate estimation at the time the contract was executed.

We overrule point of error no. 2.

Judgment affirmed.


author: STEPHENSON, Justice.

text:
    Joe CORDREY, dba Auto World, Appellant, v. Jerry ARMSTRONG et ux., Appellees.
    No. 8006.
    Court of Civil Appeals of Texas, Beaumont.
    June 23, 1977.
    George Michael Jamail, Beaumont, for appellant.
    Jack Fisher, Beaumont, for appellees.
   STEPHENSON, Justice.

Jerry Armstrong, et ux, brought this suit against Joe Cordrey, doing business as Auto World, under the Deceptive Trade Practices and Consumer Protection Act. Trial was by jury, and judgment was rendered for plaintiffs on the verdict. The sole question before this court is whether or not plaintiffs can recover attorney’s fees in the absence of any other recovery. Apparently this is a question of first impression.

Plaintiffs alleged they purchased an automobile from defendant who represented it had less than 15,000 miles on it when in fact it had been driven between 48,000 to 50,000. Plaintiffs alleged this to be a deceptive trade practice under the Act and that they had been damaged $2,070 actual damages. They prayed for triple damages in the amount of $6,210, $20,000 exemplary damages and a reasonable attorney’s fee.

The jury made the following findings:

(1) That plaintiffs agreed to buy the automobile in question from defendant for $7,400.

(2) That the market value of such automobile at the time was $7,500.

(3) That defendant represented the automobile to have less than 40,000 miles.

(4) That plaintiffs relied upon that representation.

(5) That no dollars was the difference in the market value of the automobile as represented and as purchased.

(6) That $1,500 was a reasonable and necessary attorney’s fee for plaintiffs’ attorney in prosecuting this case.

(7) The representation that the automobile had less than 40,000 miles was false.

(8) Such representation was material to plaintiffs’ decision to purchase such automobile.

(9) Such representation was made with the intent to induce plaintiffs to purchase such automobile.

(10) That plaintiffs suffered damage as a result of such representation.

(11) That defendant acted with malice.

(12) That plaintiffs should recover $3,000 exemplary damages.

The judgment of the trial court was for plaintiffs to recover only the $1,500 attorney’s fee together with the cost. No statement of facts was filed in this court.

Tex.Bus. & Comm. Code Ann. § 17.50(b) (Supp. 1976-1977) of such Act reads as follows:

“In a suit filed under this section, each consumer who prevails may obtain:
(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended;
(2) an order enjoining such acts or failure to act;
(3) orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this sub-chapter; and
(4)any other relief which the court deems proper, including the appointment of a receiver or the revocation of a license or certificate authorizing a person to engage in business in this state if the judgment has not been satisfied within three months of the date of the final judgment.”

It is apparent that the purchaser, proving a deceptive trade practice, has many remedies available against the seller. He can secure an injunction, restoration of money, property, or any other relief which the court deems proper including the appointment of a receiver or revocation of the seller’s license to engage in business. He can obtain three times the actual damages, plus attorneys’ fees and cost.

In this suit, the plaintiffs did not seek any of the available forms of relief, including restoration, except money damages plus attorney’s fees and cost. Under the judgment, they were denied all relief, except attorney’s fees and cost.

We have come to the conclusion that a reading of the entire Act indicates a consumer must prevail in his suit in order to obtain attorneys’ fees and court cost. We hold that consumers-plaintiffs must obtain some other relief in order to be considered as prevailing. If plaintiffs had recovered judgment for actual damages, restoration, or an injunction, then they would have prevailed in the trial court and could have obtained their attorney’s fees and court cost. A plaintiff may not recover only attorney’s fees and court cost. The judgment of the trial court is reversed and rendered that plaintiffs take nothing, court cost to be assessed against plaintiffs.

REVERSED and RENDERED.