text:
    COUNTRY CUPBOARD, INC., Appellant, v. The TEXSTAR CORPORATION, Appellee.
    No. 19550.
    Court of Civil Appeals of Texas, Dallas.
    July 10, 1978.
    Rehearing Denied Aug. 21, 1978.

      James A. Knox, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellant.
    Marshall M. Searcy, Jr., Rain, Harrell, Emery, Young & Doke, Dallas, for appellee.
   ROBERTSON, Justice.

Country Cupboard, Inc., a dissolved Nevada corporation acting through its liquidating trustees, sued The Texstar Corporation, seeking rescission of a written agreement executed in settlement of a claim pressed by Texstar. Country Cupboard asserted that the claim was made in bad faith and that the settlement agreement was procured through duress and business compulsion. Texstar moved to dismiss the suit on the grounds that Country Cupboard did not possess a valid certificate of authority to do business in Texas, and thus could not sue in this state. Alternatively, Texstar argued that Country Cupboard’s suit was barred by the statute of limitations. The trial court granted the motion to dismiss, and Country Cupboard now appeals. We reverse and remand.

The primary question on this appeal is whether the dissolved Nevada corporation has legal capacity to sue in the courts of this state. If we conclude that it does, we must then decide whether the present suit is barred by the statute of limitations.

Capacity to Sue

Country Cupboard first argues that the trial court erred in concluding that, as a dissolved foreign corporation, it has no capacity to sue in the courts of Texas. It asserts that its capacity is to be determined by the law of Nevada, the state of its incorporation, and that under Nevada law, its liquidating trustees are empowered to sue for and recover the debts and property of the corporation after dissolution. We agree. The question of whether a foreign corporation continues in existence after dissolution for the purpose of prosecuting and defending suits is determined by the laws of the state in which the corporation was created. See Miller Management Co., Inc. v. State, 140 Tex. 370, 167 S.W.2d 728 (1943); Ferguson-McKinney Dry Goods Co. v. Garrett, 252 S.W. 738 (Tex.Com.App.—1923, jdgmt. adopted); 3 Hildebrand, Texas Corporations 403 (1942). In the present case, Nevada law allows the corporate entity to continue after dissolution for litigation purposes. Section 78.585 of the Nevada Revised Statutes provides, in part:

All corporations, whether they expire by their own limitation, or are otherwise dissolved, or whose charter has been forfeited, shall nevertheless be continued as bodies corporate for the purpose of prosecuting and defending suits, actions, proceedings, and claims of any kind or character by or against them . . . [Emphasis added]

Section 78.595 of the Nevada Revised Statutes specifically grants the liquidating trustees of the dissolved corporation “authority to sue for and recover” debts owed to the corporation. Thus, under Nevada law, a dissolved corporation has the legal capacity to sue, and since the question of capacity to sue in Texas is controlled by Nevada law, we conclude that Country Cupboard also has capacity to sue here.

Although no formal motion to take judicial notice of Nevada law was made under Rule 184a of the Texas Rules of Civil Procedure, we conclude that by pleading the Nevada law in both its original and amended petitions, Country Cupboard sufficiently directed the attention of both the trial court and opposing counsel to the applicability of Nevada law. Formal motions to take judicial notice of foreign law are not necessary if the foreign law has been distinctly pleaded by the party asserting its applicability. See Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458 (Tex.1969); Utica Mutual Insurance Co. v. Bennett, 492 S.W.2d 659 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ); Milner v. Schaefer, 211 S.W.2d 600 (Tex.Civ.App.—San Antonio 1948, writ ref’d).

In refusing to apply foreign law in Gevinson, our supreme court stated:

Our attention has not been directed to any pleading or proof concerning the law of the [foreign] state or to a motion that the trial court take judicial notice thereof as provided.in Rule 184a, T.R.C.P. (449 S.W.2d at 465, n. 2) (emphasis added)

This language recognizes that pleading and motions under Rule 184a are alternative means of directing the trial court’s attention to the applicability of foreign law. We note, however, that even if these pleadings were insufficient to invoke the applicability of foreign law, our decision would be the same. In the absence of proper invocation of foreign law, Texas courts must presume the foreign law to be the same as that of Texas. Gevinson v. Manhattan Construction Co. of Oklahoma, supra. Since art. 7.12 of the Texas Business Corporations Act and art. 1302-2.07 of the Texas Miscellaneous Corporation Act provide that Texas domestic corporations retain legal capacity to sue after dissolution, we would, under Gev-inson, presume that Nevada law grants its corporations a similar post-dissolution capacity.

Texstar argues that even if Country Cupboards has capacity to sue under Nevada law, it still cannot sue in Texas without first obtaining a certificate of authority pursuant to art. 8.18(A) of the Texas Business Corporation Act. A certificate of authority is a prerequisite to “transacting business” in this state, and the penalty for “transacting business” without such a certificate is the prohibition of suing in Texas courts on any cause of action “arising out of the transaction of business in this State.” Tex.Bus.Corp.Act., art. 8.18 (Vernon Supp. 1978). Thus, the question before us is whether Country Cupboard’s suit “arises out of the transaction of business in this state” so as to preclude the maintenance of the suit without a valid certificate of authority. We conclude that it does not so arise. Article 8.01(B)(1) of the Business Corporation Act expressly states that a foreign corporation is not considered to be “transacting business” by “[m]aintaining or defending any action or suit or any administrative or arbitration proceedings, or effecting the settlement thereof or the settlement of claims or dispute to which it is a party.” Since the present suit was filed to rescind an agreement executed in settlement of a claim asserted against Country Cupboard by Texstar, we conclude that this suit does not “arise out of the transaction of business” in Texas. Accordingly, a certificate of authority is not a prerequisite to the prosecution of this particular suit. See State v. Cook United, Inc., 463 S.W.2d 509 (Tex.Civ.App.—Fort Worth 1971) modified, 469 S.W.2d 709 (Tex.1971) (subject matter of suit must fall into category of litigation which foreign corporation is forbidden from bringing, and when suit does not arise from doing business in Texas, suit is not barred.) See generally, Hamilton, Texas Practice— Business Organizations § 987 (1973).

Limitations

Texstar next contends that even if Country Cupboard has capacity to sue in Texas courts without a certificate of authority, this suit is merely an action to recover “money had and received” by Tex-star, and thus is barred by the two-year statute of limitations. Tex.Rev.Civ.Stat. Ann., art. 5526 (Vernon 1958). Since the transaction sought to be set aside took place on June 22, 1972, and the present suit was not filed until June 17, 1976, the suit is barred if the two-year limitations period applies. Country Cupboard argues, however, that the suit is not one to force the disgorgement of unjust enrichment, but rather is an action to rescind a written agreement, in which case the four-year statute, article 5527 of the Texas Revised Civil Statutes, would apply, and the suit would not be barred. In order to decide this issue, we must determine the true nature of Country Cupboard’s cause of action by the facts alleged in its petition, the principal rights asserted therein, and the relief sought. Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957); South Padre Development Co., Inc. v. Texas Commerce Bank National Association, 538 S.W.2d 475, 480 (Tex.Civ.App.—Corpus Christi 1976, no writ). In its petition, Country Cupboard alleged that the present suit was filed:

. to rescind and cancel that certain written agreement entitled “Release” dated June 22, 1972, by and between Defendant and Plaintiff . and for return to the Plaintiff of the $117,000 cash consideration paid by Plaintiff to Defendant for the said agreement.

Traditionally, the right to rescission has depended upon the existence of a transaction which is legally valid but which, in the conscience of equity, must be set aside to avoid unjust enrichment. Dobbs, Remedies at 254-256 (1973). See Southern Methodist University v. Evans, 131 Tex. 333, 115 S.W.2d 622 (1938); World Fire & Marine Ins. Co. v. Puckett, 265 S.W.2d 641 (Tex.Civ.App.—1954, writ ref’d n. r. e.) (right to rescission presupposes the existence of an otherwise binding obligation); cf. Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860, 863 (1927); Adams v. Loftin, 1 S.W.2d 429, 430 (Tex.Civ.App.—El Paso 1927, no writ) (“Rescission is the undoing of a thing.”); Stribling v. Polunsky, 195 S.W.2d 554, 556 (Tex.Civ.App.—Austin 1946, no writ) (Rescission is an equitable remedy which extinguishes the contract despite its provisions). Thus, in order to decide whether the suit is governed by the four-year limitations period applicable to suits founded on a written instrument, we must determine whether the “release” is an instrument which must be set aside before restitution can be made. We conclude that it is. Since the release was expressly executed “in consideration of the sum of $117,000 to Texstar in hand paid by [Country Cupboards] . . . ”, it is clear that but for the release of liability, the money would not have been paid. The release is a valid legal document which precludes any recovery of the funds paid by Country Cupboard unless it is set aside on the equitable grounds urged in the present suit.

We recognize the general rule that where a party sues to recover money paid under a void instrument, he cannot seek rescission, but must recover in quantum valebant for money had and received. See City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448, 452 (1947); Rayner Cattle Co. v. Bedford, 44 S.W. 410, 413 (Tex.Civ.App.—1898) aff’d 91 Tex. 658, 45 S.W. 554 (1898). However, the present case does not concern a void instrument. Instruments executed under duress are not void, but merely voidable at the instance of the party against whom the duress is exerted. Hall v. Odiorne, 14 S.W.2d 870 (Tex.Civ.App.—Austin 1929, writ dism’d). Since a “voidable” instrument has legal effect until judicially set aside, Gaston v. Copeland, 335 S.W.2d 406 (Tex.Civ.App.—Amarillo 1960, writ ref’d n. r. e.), Country Cupboard cannot gain restitution through a suit for money had and received, but must sue for rescission of the release.

Although Texstar urges that the release is not a “contract in writing” within the meaning of the four-year statute of limitations provided in article 5527(1), the statute has been construed broadly to include suits founded upon instruments which are not necessarily contractual in nature. As the late Chief Justice Alexander stated in International Printing Pressmen and Assistants Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1947):

It is sufficient if the obligation or liability grows out of a written instrument, not remotely but immediately, or if the written instrument acknowledges the state of facts which, by fair implication, the obligation or liability arises. (198 S.W.2d at 736)

See also City of Houston v. Anchor-Hocking Glass Corp., 467 S.W.2d 677, 679 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.). Here, Country Cupboard’s claim for restitution is completely dependent upon the rescission of a written instrument. Such a case falls within the broad construction of article 5527(1) enunciated in International Pressmen and Assistants Union of North America v. Smith, supra.

Texstar’s last argument on this point is that the written release is but part of a comprehensive settlement agreement which was partially oral and partially written. In other words, Texstar contends that the release does not embody the full agreement of the parties, and that since part of the agreement was oral, the four-year statute applicable to written instruments does not apply. To support this contention, Texstar cites L.C.L. Theatres, Inc. v. Columbia Pictures Industries, Inc., 421 F.Supp. 1090, 1102 (N.D.Tex.1976) and Barbier v. Barry, 345 S.W.2d 557, 564 (Tex.Civ.App.—Dallas 1961, no writ), both of which hold that when an alleged contract is partly oral and partly written, it is considered an oral contract subject to the two-year statute of limitations rather than the four-year period applicable to written contracts. We cannot accept this argument, for the existence of an earlier oral agreement is a sharply contested fact issue in this case which the trial court did not decide. In its first amended petition, Country Cupboard specifically denied the existence of any oral agreement, and although Texstar urges its existence, no proof of such an agreement was made in the trial court. Accordingly, for the purposes of our decision here, we must presume, at this early stage in the trial proceedings, that the release encompasses all aspects of the parties’ settlement.

Finally, Texstar urges that even if the judgment of the trial court cannot be sustained on the grounds set forth in its motion to dismiss, we should still affirm because Country Cupboard’s pleading fails to state a claim upon which relief could be granted. We cannot agree. This contention was not presented to the trial court in Texstar’s motion to dismiss, and the scope of our review on this appeal is limited to the arguments raised in that motion. We have no authority to pass on the merits of Country Cupboard’s cause of action until those issues have been adjudicated by the trial court. Brown v. Aetna Casualty & Surety Co., 135 Tex. 583, 145 S.W.2d 171 (1940); Binz v. Harwood, 297 S.W.2d 210 (Tex.Civ.App.—Fort Worth 1957, writ ref’d).

Reversed and remanded.

GUITTARD, C. J., not participating.

      . In both its original and amended petitions, Country Cupboard alleges that this suit is brought “by and through its final and liquidating board of directors, as trustees for Plaintiffs shareholders, pursuant to Sections 78.590 and 78.595, Nevada Revised Civil Statutes." [Emphasis added]

      . Country Cupboard held a certificate of authority until January. 1972, when it voluntarily withdrew the certificate during the process of liquidating its assets.


source: Caselaw Access Project

author: COULSON, Justice.

license: Public Domain

text:
    CITY OF HOUSTON, Appellant, v. R. F. BALL CONSTRUCTION COMPANY, INC., et al., Appellees.
    No. 1750.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 12, 1978.
    Rehearing Denied Aug. 30, 1978.

      Robert M. Collie, Jr., City Atty., Joseph G. Rollins, Senior Asst. City Atty., Dale M. Tingleaf, Asst. City Atty., Houston, for appellant.
    Owen W. Cecil, Brian S. Greig, Fulbright & Jaworski, Houston, for appellees.
   COULSON, Justice.

The City of Houston appeals from an adverse judgment entered in a suit brought by R. F. Ball Construction Company, Inc. and Southwest Ball Construction Company for damages occasioned by delay and hindrance in the construction of passenger terminal facilities at Houston Intercontinental Airport. We hold that the construction contract precludes recovery of such damages. We reverse and render judgment that the plaintiffs take nothing.

On June 15, 1965, the City of Houston (“City”) awarded R. F. Ball Construction Company, Inc. and Southwest Ball Construction Company (jointly referred to as “Ball”) a contract for the construction of the following parts of Houston Intercontinental Airport: two five-level terminal buildings, seven flight stations, seven connecting concourses to join the flight stations to the terminals, a battery train tunnel and pedestrian tunnel, a utility tunnel, two U-ramps (one at each terminal), four spiral ramps (two at each terminal), and four baggage cart tunnels. Ball began work on the project on June 16, 1965 and was scheduled to complete it on April 30, 1967. Work was not in fact completed until the opening date of the airport, June 9, 1969. During the performance of the work the City issued, as it was contractually authorized to do, several hundred “Change Items” and between eight hundred and nine hundred “Clarifications” varying the original plans and specifications. Although the City paid Ball $2,404,194.02 for such changes, this payment was for the “direct” costs of the changes and did not cover the “indirect” or “impact” costs occasioned by the delay, disruption, and general hindrance of efficient work which inevitably resulted from the changes. Following an unsuccessful demand on the City for payment of such costs, Ball filed suit, on behalf of itself and its subcontractors, for the damages sustained as a result of the delay and hindrance of work caused by the City’s' changes. At the conclusion of a two month trial, thirteen special issues were submitted to the jury. In response to the first eight of these issues the jury found that:

(1) The number of Change Items and Clarifications was greater than was foreseen or contemplated by Ball and the City at the time they entered into the contract;
(2) The number of Change Items and Clarifications caused Ball to be delayed in the completion of its work under the contract;
(3) Such delay was not foreseen or contemplated by Ball and the City at the time they entered into the contract;
(4) Such delay caused Ball to perform additional work;
(5) The number of Change Items and Clarifications caused Ball to be hindered in the completion of its work under the contract;
(6) Such hindrance was not foreseen or contemplated by Ball and the City at the time they entered into the contract;
(7) Such hindrance caused Ball to perform additional work;
(8) $3,759,209.90 would reasonably compensate Ball for the additional work performed by it and its subcontractors for which Ball had not been paid.

The remaining issues, dealing with recovery in quantum meruit, were submitted conditionally and were not answered by the jury. The trial court added pre-judgment interest to the amount of damages found by the jury and rendered judgment for Ball totaling $5,108,765.50, from which the City brings this appeal.

In the absence of provision to the contrary, a contractor, such as Ball, is entitled to recover damages from a contractee, such as the City, for losses due to delay and hindrance of work if it proves (1) that its work was delayed or hindered, (2) that it suffered damages because of the delay or hindrance, and (3) that the contractee was responsible for the act or omission which caused the delay or hindrance. Anderson Dev. Corp. v. Coastal States, Etc., 543 S.W.2d 402 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.); Bd. of Regents, U. of Tex. v. S. & G. Const. Co., 529 S.W.2d 90 (Tex.Civ.App—Austin 1975, writ ref’d n. r. e.); H. Cohen, Public Construction Contracts and the Law § 8.3, at 229 (1961). However, the parties may foresee the possibility of delay and contractually provide for the remedy to be applied if that possibility occurs. Ball’s contract with the City contains such a provision:

13. Delays. — The Contractor shall receive no compensation for delays or hindrances to the work, except when direct and unavoidable extra cost to the Contractor is caused by the failure of the City to provide information or material, if any, which is to be furnished by the City. When such extra compensation is claimed a written statement thereof shall be presented by the Contractor to the Engineer and if by him found correct shall be approved and referred by him to the Council for final approval or disapproval; and the action thereon by the Council shall be final and binding. If delay is caused by specific orders given by the Engineers to' stop work, or by the performance of extra work, or by the failure of the City to provide material or necessary instructions for carrying on the work, the such delay will entitle the Contractor to an equivalent extension of time, his application for which shall, however, be subject to the approval of the City Council; and no such extension of time shall release the Contractor or the surety on his performance bond from all his obligations hereunder which shall remain in full force until the discharge of the contract.

Similar provisions in other construction contracts have been given effect by the courts. Coleman Bros. Corporation v. Commonwealth, 307 Mass. 205, 29 N.E.2d 832, 838 (1940); Ace Stone, Inc. v. Wayne Tp., 47 N.J. 431, 221 A.2d 515, 517 (1966); Psaty & Fuhrman v. Housing Authority, 76 R.I. 87, 68 A.2d 32, 36 (1949); Housing Authority of City of Dallas v. Hubbell, 325 S.W.2d 880 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.).

One of the exceptions to the application of a “no damages” provision is that a delay which was not intended or contemplated by the parties to be within the purview of the provision is not governed by it. Ace Stone, Inc. v. Wayne Tp., 47 N.J. 431, 221 A.2d 515 (1966); Western Engineers, Inc. v. State Road Commission, 20 Utah 2d 294, 437 P.2d 216 (1968). It is within this exception that Ball’s claim must rest since findings on the other possible exceptions were not requested and their existence was not established as a matter of law.

Ball received jury findings that it and the City did not foresee the great number of “Change Items” and “Clarifications” when they entered into their contract, and that they did not foresee the delay and hindrance they would occasion. From this, Ball concludes that it has placed itself within the exception. This is not so. Ball has merely established that the delays and hindrances were of a certain character, that is, unforeseen ones. Ball has not established that the clause was not intended to apply to unforeseen delays and hindrances and that it was only intended to apply to foreseeable ones.

It is the general rule of the law of contracts that when an unambiguous writing has been entered into between the parties, the courts will look to the written instrument as the expression of the parties’ intention since it is the parties’ objective, not subjective, intent which is significant. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968); Holmes, The Path of the Law, 10 Harv.L. Rev. 457, 464 (1897). Similar “no damages” clauses have been held unambiguous by other courts. O’Connor v. Smith, 84 Tex. 232, 19 S.W. 168, 171 (1892); Western Engineers, Inc. v. State Road Commission, 20 Utah 2d 294, 437 P.2d 216, 218 (1968). A reading of the clause in issue convinces us that it is unambiguous. As such, extrinsic evidence may not be used to explain its meaning.

The clause does not limit its application to those delays and hindrances that were foreseen by the parties when they entered into the contract. Instead, it embraces all delays and hindrances which may occur during the course of the work, foreseen and unforeseen. Indeed, it is the unforeseen events which occasion the broad language of the clause since foreseeable ones could be readily provided for by specific language. Cunningham Brothers, Inc. v. City of Waterloo, 254 Iowa 659, 117 N.W.2d 46, 49 (1962); Western Engineers, Inc. v. State Road Commission, 20 Utah 2d 294, 437 P.2d 216, 218 (1968).

Since the “no damages” clause covers the type of delay and hindrance which the jury found Ball’s to be, the clause covers Ball’s compensation for them. Ball is entitled to “no compensation” except for “direct and unavoidable extra costs . caused by the failure of the City to provide information or material, if any, which is to be furnished by the City.” Ball has failed to establish its right to compensation for such specific costs and, consequently, is not entitled to compensation for delay and hindrance.

This seems unduly harsh. However, the language used by the United States Supreme Court in an almost identical situation is instructive:

Men who take $1,000,000 contracts for government buildings are neither unsophisticated nor careless. Inexperience and inattention are more likely to be found in other parties to such contracts than the contractors, and the presumption is obvious and strong that the men signing such a contract as we have here protected themselves against such delays as are complained of by the higher price exacted for the work.

Wells Bros. Co. v. United States, 254 U.S. 83, 87, 41 S.Ct. 34, 35, 65 L.Ed. 148 (1920).

Reversed and rendered.

      . The other generally recognized exceptions are: (1) Delay resulting from fraud, misrepresentation, or other bad faith on the part of one seeking the benefit of the provision; (2) Delay which has extended such an unreasonable length of time that the party delayed would have been justified in abandoning the contract; (3) Delay not within the specifically enumerated delays to which the “no damages” clause applies. Western Engineers, Inc. v. State Road Commission, 20 Utah 2d 294, 437 P.2d 216 (1968). See generally Annot. 74 A.L.R.3rd 187 (1976).

      . Ball cites several cases which state that if the delays or their cause were beyond the contemplation of the parties, then the “no damages” clause does not apply. Typical of such cases is Grant Construction Co. v. Burns, 92 Idaho 408, 443 P.2d 1005, 1012 (1968). We disagree with such cases since they preclude operation of the clause in situations where the character of the delay was unforeseen — the precise sort of delays the clause is designed to cover. In this regard see Western Engineers, Inc. v. State Road Commission, 20 Utah 2d 294, 437 P.2d 216, 218 (1968) and Cunningham Brothers, Inc. v. City of Waterloo, 254 Iowa 659, 117 N.W.2d 46, 49 (1962).

      . An example of the use of specific language to cover foreseeable events is found in this case in the provision for payment for certain costs occasioned by “the failure of the City to provide information or material, if any, which is to be furnished by the City.”


author: ROBERTSON, Justice.

text:
    Katherine WILLS, Appellant, v. R. G. BENEKE & CO. et al., Appellee.
    No. 19532.
    Court of Civil Appeals of Texas, Dallas.
    July 12, 1978.
    Rehearing Denied Aug. 18, 1978.
    Charles Ben Howell, Dallas, for appellant.
    Gary C. Crapster, Strasburger & Price, Dallas, for appellee.
   ROBERTSON, Justice.

Katherine Wills entered into a contingency fee contract with the R. G. Beneke & Co. whereby Beneke agreed to aid Wills in negotiating a $36,515.48 fire and theft insurance claim. Beneke failed to timely file the proof of loss, and the insurance company refused to pay the claim. Subsequently, Wills employed an attorney who negotiated a settlement by which the insurer agreed to pay Wills $15,519.41 on the claim. After negotiating this settlement with the insurer, Wills sued Beneke for the difference in her original claim and the settlement amount, claiming that but for Beneke’s negligent failure to file timely proof of loss, she would have recovered the entire amount of her claim. The trial court instructed a verdict for Beneke, and Wills now appeals. We affirm.

The primary question on this appeal is whether Wills adduced sufficient evidence to show that the Beneke’s failure to timely file the proof of loss was the proximate cause of the reduced settlement amount. Wills testified that her attornéy obtained the reduced settlement for her, and the attorney testified to a limited extent concerning his involvement in the case. Neither witness, however, testified as to the nature and content of the negotiations with the insurer, nor was any representative from the insurer called to testify.

The only documentary evidence introduced by Wills was a letter, written by the insurer some two months before the proof of loss was due, stating that the insurer intended “to invoke [the proof of loss condition] in its entirety.” As an out-of-court statement offered for the purpose of verifying the insurer’s intent to rely upon the proof of loss condition, this letter is hearsay, Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963), and has no probative value unless within an exception to the hearsay rule. Ray v. Shafer, 519 S.W.2d 525, 526 (Tex.Civ.App.—Fort Worth 1975, no writ); Knapik v. Edison Bros., Inc., 313 S.W.2d 335, 337 (Tex.Civ.App.—Waco 1958, writ ref’d). Although Wills urges that the letter falls within the “business records” exception to the hearsay rule, we conclude that this exception is inapplicable. The “business records” exception is set forth in art. 3737e of the Texas Revised Civil Statutes, and requires, as a prerequisite to admissibility, findings that:

(a) the memorandum or record prepared in the regular course of business; and
(b) it was the regular course of that business for an employee or representative of such business with personal knowledge of the act, event or condition to make the memorandum or record or to transmit information to be included in the memorandum or record; and
(c)the memorandum or record was made at or near the time of the act, event or condition or reasonably soon thereafter.

Tex.Rev.Civ.Stat.Ann., art. 3737e (Vernon Supp.1978); Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712, 722 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). In the present case, there is no evidence concerning these three prerequisites. The insurer was not a party to the suit, and the person or persons responsible for preparing the letter were not called to testify. Accordingly, we conclude that this exception is inapplicable, and that the letter has no evidentiary value.

Without considering the letter, the only evidence before the trial court tending to favor Will’s position was the late filing of the proof of loss. If timely proof of loss is a condition precedent to recovery under the policy, failure to comply with that condition is a complete defense to liability on the part of the insurer. Commercial Union Assur. Co. v. Preston, 115 Tex. 351, 282 S.W. 563 (1926); Latham v. Mountain States Mutual Casualty Co., 482 S.W.2d 655 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n. r. e.). Thus, if the insurer had wholly refused to settle the claim, it might be inferred that the late filing proximately caused Wills’ damages. In the present case, however, the insurer settled for $15,519.41, and thus apparently elected not to defend on the proof of loss condition. Although Wills urges that the insurer simply “bought its peace” through this settlement, no evidence of the nature or content of the settlement negotiations was introduced at trial. At best, the evidence here only raises a suspicion or surmise that the late filing of the proof of loss proximately caused a lesser settlement than that to which Wills was allegedly entitled. Instructed verdicts traditionally have been held proper in such situations. Hunter v. Carter, 476 S.W.2d 41 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.); Pair v. Caraway Drilling Co., 250 S.W.2d 292 (Tex.Civ.App.—Eastland 1952, writ ref’d n. r. e.); Holt v. Collins, 131 S.W.2d 813 (Tex.Civ.App.—Waco 1939, writ dism’d judgmt. corr.).

Affirmed.

GUITTARD, C. J., not participating.


author: WARD, Justice.

text:
    J. D. ABRAMS, INC., et al., Appellants, v. Fred G. SEBASTIAN, et al., Appellees.
    No. 6758.
    Court of Civil Appeals of Texas, El Paso.
    July 12, 1978.
    Rehearing Denied Aug. 9, 1978.

      Johnson & Bowen, Phillip C. Bowen, Alan C. Nasits, El Paso, for appellants.
    Collins, Langford & Pine, John A. Lang-ford, William Pate, El Paso, for appellees.
   OPINION

WARD, Justice.

This is an appeal from the granting of a temporary injunction which prohibited property owners, a contractor, and City Officials of El Paso from further proceeding under the terms of a grading permit issued by the City of El Paso. We affirm.

The City of El Paso adopted a Grading Ordinance as a complement to its General Zoning and Land Use Ordinances. The stated purposes of the Grading Ordinance were to assure that proposed grading in the City, and particularly in the mountainous area, would result in the minimum disturbance of the terrain so as not to create flood problems or irreparable scars on the natural land features.

The Ordinance prohibited any grading within the City without a permit, excepting therefrom certain small activities. Any person desiring a permit was required to apply to the City Engineer, the application describing the name of the owner, the property, the contractor, the location, the nature and extent of the proposed work, whether or not the work was to prepare the site for a subdivision, the amount of material to be excavated, and the future intended use of the site. It specifically provided that changes in the intended use of the land involved after a permit was applied for would require reapplication for a permit. When grading was to be performed on a site intended to be subdivided, no grading permit would be issued until the preliminary subdivision plat had been approved by the City Plan Commission. When the site was intended to be subdivided, the application was to be referred to the Department of Planning and Research for study and comment, which in turn would report its comments to the City Engineer. When the grading was to be performed on any site in the mountain development area, the Secretary of the City Plan Commission was required to schedule a public hearing before the Plan Commission not less than fifteen days after the receipt of the referral from the City Engineer, and at least ten days’ notice of the time and place of such hearing was required to be published in the official newspaper in the City. After the public hearing, the Plan Commission was then required to make findings of fact concerning whether the proposed work might reasonably be expected to have an adverse effect on the City’s comprehensive zoning and land use plan, on any adjacent property, and on the visual appearance of the mountain development area, and, based upon such findings, the Plan Commission would either approve, modify, or disapprove the grading permit application and the development plan. If it approved the plan, it would then authorize the City Engineer to issue the grading permit.

In any case where the grading was to be performed on sites in the mountain development area, the City Council was granted the authority to hear and determine appeals from any decision of the Plan Commission. In this connection, the Ordinance provided that any person aggrieved by such decision of the Plan Commission, or any taxpayer, might appeal to the City Council, said appeal to be filed with the City Clerk in writing within fifteen days from the date of the decision appealed from. The City Clerk would then schedule a public hearing before the City Council, and at least ten days’ notice of this hearing was to be published in the official newspaper. Thereafter, the City Council was to act, and, if it authorized the issuance of the permit, the City Engineer was then allowed to issue the permit.

In addition, the Ordinance provided that on permits within the mountain development area, no permit would issue until the permit had been authorized by the Plan Commission and, in the event of an appeal to the City Council, issuance of the permit would be stayed and the permit not issued by the City Engineer unless authorized by the decision of the City Council.

The mountain development area, above mentioned, was described in the Ordinance and contained all of the mountainous area which is located within the City of El Paso.

On November 18, 1977, an application for a grading permit covering property at 7041 Alabama Street, El Paso, was filed by the owners, J. D. Abrams, Trustee, and R. A. Knapp. The property contained 55 acres and lay within the mountain development area. The reason stated in the application and in the document accompanying it was use as a borrow pit for the removal from the site of approximately 1,800,000 cubic yards of material, which would be used as borrow material in the construction of the North-South freeway in El Paso. It was also noted that the future use of the site would be for “Residential and Tennis Club.” The existing zoning for the property was for Residence R-2 and R-3, and, as later indicated by the City Engineer and the City Director of the Department of Planning, Research and Development, the use for a borrow pit would require a rezoning to M — 1 zoning. Regardless of the provisions in the Ordinance, the City Engineer issued a “temporary permit to grade” to the applicants on the same day that the application was made.

Acting upon the application, the Secretary scheduled a public hearing before the City Plan Commission for December 13, 1977, and caused the notice of hearing to be published in the newspaper on December 7, 1977. This notice was thus published less than the ten days as required by the Ordinance. At the City Plan Commission hearing on December 13th, the City Engineer and the Director of the Department of Planning, Research and Development recommended that the Commission not consider the request until a proper development and subdivision plan was submitted in accordance with the mountain Grading Ordinance; that any development and subdivision plan that would be submitted must show conformity with R-2 and R-3 zoning; and that if the purpose of the permit continued to be for a borrow pit, which would require a change to M-l zoning, then it was recommended that such a change in zoning not be granted for the area. The City Plan Commission continued its hearing and reconvened on December 20th without any further notice being given of the meeting, although some phone calls were made by the City Plan Department, presumably to interested citizens in the neighborhood. At the meeting on December 20, 1977, the application was approved and the permit was granted. An appeal was then taken by certain citizens to the City Council, and the City Council did, on January 19, 1978, by motion approve the application and authorized the permit to be issued.

Thereafter, the present suit was instituted, and after hearing, the trial Court did, on February 17th, find that the permit was of no effect, and, based upon lack of public notice of the December 20, 1977 meeting of the El Paso City Plan Commission and upon the fact that the property owner’s permit application was incomplete and not in accordance with the specific requirements of the mountain Grading Ordinance, did determine that the permit should not have been issued by the City Council. Thereupon, a temporary injunction was issued against the Defendants enjoining and restraining them from further proceeding under the grading permit issued on January 19th; and ordering that no grading, loading or removal of earth material from 7041 Alabama would be permitted until further order of the Court. The Defendants, having been permitted to supersede the order, perfected the present appeal.

The first point presented by the Defendants is that the temporary injunction was erroneously issued as no request for a temporary injunction was made in the Plaintiffs’ pleadings. The Plaintiffs’ prayer was only to the effect that “the Court issue an Order to Show Cause why the requested injunction should not be issued * * *.” Acting on the show cause request, the trial Court issued an order setting a hearing for February 6, 1978, ordering the Defendants to appear and “to show cause why the action of the City Council of January 19,1978, should not be set aside and why a temporary injunction should not issue enjoining the Defendants from proceeding and from doing any work under the permit issued on January 19, 1978.” The hearing was then held on February 6th, the parties announced ready for trial, and, as pointed out in the judgment, the Court treated the hearing as an application for a temporary injunction. The general tenor of the hearing proceeded as if that matter was before the Court, and at no time did the Defendants complain by special exception or by objection that a temporary injunction was not or could not be heard. We hold that the issuance of the temporary injunction was tried by implied consent of the parties. The defect in the pleadings was waived as it was not brought to the attention of the Court before the rendition of the judgment. Rules 67, 90, Tex.R.Civ.P.; McKee v. City of Mt. Pleasant, 328 S.W.2d 224 (Tex.Civ.App.—Texarkana 1959, no writ); 2 McDonald, Texas Civil Practice, Sec. 5.18 (1970). The first point is overruled.

The trial Court, in issuing the temporary injunction, found that its decision was not based upon lack of substantial evidence offered in the hearings previously described, and the Defendants point this out in their next series of complaints. Section HA-lO.l(c) of the Grading Ordinance is as follows:

“ * * * The decision of the city council shall be final except to the extent that any person aggrieved by the decision, or any taxpayer, may appeal to a district court to determine whether the council’s decision is reasonably supported by substantial evidence. * * * ”

The Defendants contend that the Ordinance allows an appeal only in the event the substantial evidence standard was violated, and, unless such a violation occurred, the appeal is without merit. This contention ignores the rule that the substantial evidence test is not applicable in instances where the attack on the administrative agency’s order is made on the basis that an essential notice as called for in the administrative process was not made, 1 Tex.Jur.2d Administrative Law, Etc., Sec. 24 (1959), or where the agency has made an erroneous determination of a question of law. City of Dallas v. Furrh, 541 S.W.2d 271 (Tex.Civ.App.—Texarkana 1976, writ ref’d n. r. e.). Points of Error Nos. 2, 3 and 4 are overruled.

The Appellants’ next series of points attack the Court’s reasons for the issuance of the temporary injunction because regardless of earlier defects in the proceedings, the hearing before the City Council was a trial de novo, with the City Council having full power to initiate and grant the permit. In this connection, the Appellants point to a specific retention of power made by the City Council in the Grading Ordinance itself. Section 11A-I0.1(c) provides as follows:

“ * * * Upon the hearing of such appeal, the city council shall have the authority to vary the application of the chapter or rules, regulations and guidelines, or to modify the decision or action of the plan commission or administrative officer, if such variance or modification complies with the purposes of this chapter and is in the public interest. * * ”

The Appellants argue that the City Council by the Ordinance itself has clearly reserved to itself the power and authority to grant a grading permit without any review or action whatsoever having previously been taken by the City Plan Commission.

We do not agree with the Appellants’ argument for various reasons. In the first place, the reservation of power to the City Council to vary the application of the Chapter or rule, etc., as quoted above, is limited by the phrase that the variance or modification complies with the purpose of the Grading Ordinance. That Ordinance is most comprehensive and is sixteen printed pages in length. As applied to the mountain development area, it is plainly designed to insure that minimum grading shall result; that the mountain and other natural features will not be changed; and that irreparable scars will not be created. To insure that result, exact plans of all proposed activity are required to be submitted. Extensive planning and investigation is then called for by the City Engineer, by various registered engineers, by the City Department of Planning and Research, by the El Paso-Hudspeth Soil and Water Conservation District, and, finally, by the City Plan Commission, the latter conducting its hearing before the public which had been notified by at least ten days’ newspaper notice. Only then could the City Plan Commission act, and then only after making extensive fact findings and recommendations. If all of the above can be eliminated as suggested by the Appellants, then the purpose of the Grading Ordinance would be changed so fundamentally as to be nonexistent. We hold that the clause quoted above does not reserve to the City Council the power under the Ordinance to eliminate the ten-day notice requirement, nor does it make it possible for the Appellants to proceed under their original application which called for a quarry without securing a zoning change or by making a new application for their permit.

Since the Ordinance within itself did not permit the City Council to make these drastic changes, then the City must follow the procedure it adopted in its Grading Ordinance. Wallace v. Daniel, 409 S.W.2d 184 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.). A series of zoning cases are cited by the Appellees for the principle that city councils and their administrative boards must follow established procedures in making zoning changes. The Appellants are correct in pointing out that these cases are not controlling here, as they dealt with situations where a city council attempted a zoning classification change in violation of limitations imposed by superior statutes. Thus, city council action has been prohibited from changing zoning classification without publishing notice at least fifteen days in advance in violation of Article 1011d, Tex.Rev.Civ.Stat.Ann., as in Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962); where a city council attempted a zoning change where the zoning commission had failed to submit a report and recommendation to city council contrary to Article lOllf, as in Smart v. Lloyd, 370 S.W.2d 245 (Tex.Civ.App.—Texarkana 1963, no writ); where a zoning commission failed to notify property owners within 200 feet of the property of a public hearing at least ten days before the hearing in violation of Article lOllf, as in Tonroy v. City of Lubbock, 242 S.W.2d 816 (Tex.Civ.App.—Amarillo 1951, writ ref’d n. r. e.), City of San Antonio v. Pope, 351 S.W.2d 269 (Tex.Civ.App.—Eastland 1961, no writ), and City of Amarillo v. Wagner, 326 S.W.2d 863 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.); where a city council attempted to change zoning classification without three-fourths of the members of the city council voting favorably; and where the change in the zoning classification had been protested by twenty percent or more of adjacent property owners and therefore attempting to act in violation of Article lOlle, as in Truman v. Irwin, 488 S.W.2d 907 (Tex.Civ.App.—Fort Worth 1972, no writ).

The Grading Ordinance was not adopted by the City of El Paso by virtue of the zoning powers granted by the Legislature to the City. The City of El Paso was incorporated under special charter, but with full home rule powers, and adopted the Grading Ordinance through its police powers. Admittedly, the City Council has the power to amend or abolish the Grading Ordinance. It has not done so and it has granted the permit to the Appellants upon a mere motion of the City Council. While the Appellees’ zoning cases are not applicable, a basic, principle underlying them does control our disposition of this case. We feel that the rules announced in the case of the City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970), do apply. There it was pointed out that it takes a law to repeal a law, and that an act which destroys should be of equal dignity with that which established the procedure; that there is an essential difference between an ordinance and a motion; and that an ordinance may be repealed only by another ordinance and not by resolution or motion. To paraphrase Bolton v. Sparks, supra, we say that the steps directed to be taken for notice and hearing when provided for in the superior ordinance were intended for the protection of the property owner and his safeguard against the exercise of arbitrary power. Each act required was essential to the exercise of jurisdiction by the city council and each must be rigidly performed. The Grading Ordinance was designed to protect the community of El Paso, and there is good reason for procedural requirements to be followed, at least until that ordinance be amended by an amending ordinance. Points of Error Nos, 5, 6, 7, 8 and 9 are overruled.

Appellants’ last point attacks the standing of two of the Appellees as no evidence was presented showing peculiar damages to them. The proof was that both were citizens of El Paso, homeowners, and one adjoined the property involved. The Grading Ordinance provides that any taxpayer may appeal to the City Council from the decision of the Plan Commission, and any taxpayer may appeal the decision of the City Council to the District Court. The point is overruled. McCoy v. Williams, 500 S.W.2d 178 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.).

Since the trial Court is allowed considerable discretion in the matter of granting a temporary injunction, and there has been no showing of an abuse of such discretion, and no showing of an erroneous application of law to conceded facts, the judgment is affirmed.


author: COLEMAN, Chief Justice.

text:
    J. H. FREDERICK et al., Appellants, v. Don M. HULLUM et al., Appellees.
    No. 17167.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 13, 1978.
    Andrus & Jay, Jack L. Andrus, Jr., Pasadena, Little & Dickey, Will G. Dickey, Houston, for appellants.
    William R. Laughlin, Baytown, Robert E. Hudson, Houston, for appellees.
   COLEMAN, Chief Justice.

J. H. Frederick, the defendant in the trial court, appeals from a temporary injunction restricting certain conduct on his part as being a violation of a covenant not to compete entered into by him in connection with the sale of a business. The judgment is affirmed.

In February, 1975, Hullum purchased from M & F Services, Inc., a Texas corporation, and its sole shareholder, J. H. Frederick, all of the assets, business, accounts receivable, and good will of the company operated under the name “B & H Parts Company.” The terms of the sale were set out in a written contract which provided that the seller would sell, transfer and deliver to the buyer and the buyer would buy from the seller all existing assets and business of the company including certain real property, all merchandise and supplies inventory of the company located on the real property, all accounts receivable of the company, and “all of the Company’s good will as a going concern and all rights to the use of the name B & H Parts Company, or any variant thereof.” Frederick and the corporation also agreed that for a period of five years from the date of closing neither the corporation nor Frederick would own any interest in or be employed by any business enterprise which is engaged in a business similar to that “now” being carried on by the company, either directly or indirectly, as owner, partner, or shareholder, or in any other manner, within Harris County, Texas. Frederick and the corporation further agreed not to give advice or counsel to any business enterprise which would be a competitor of the business to be carried on by the buyer. A further provision of the contract was that “No part of the purchase price shall be allocated to the good will

On or about July 1,1977, defendant Frederick took employment with defendants Eg-gleston and Warren doing business as Commercial Washer & Dryer Company as a commissioned salesman. This business was operated out of premises adjacent to the premises occupied by B & H Parts Company. Frederick was compensated by a commission on all equipment sold whether or not he was the procuring cause of the sale. The term “equipment” as used during the trial of this case refers to commercial type washing and drying machines.

At the conclusion of the hearing the trial court enjoined Frederick from in any manner being employed by Commercial Washer & Dryer Company and from owning any interest in or being employed by any business enterprise which is engaged in the business of sales of commercial washer and dryer equipment parts either directly or indirectly and from giving advice or counsel to any such business enterprise engaged in the selling of commercial washer and dryer parts.

Frederick contends that the trial court abused its discretion in that the temporary injunction is ambiguous, indefinite, and is framed more broadly than necessary to protect the business sold. He also contends that the trial court erred in not admitting and considering parol evidence which was offered in connection with the construction of the term “similar business” found in the covenant not to compete.

The evidence is that Commercial Washer & Dryer Company is engaged in the business of selling and installing new equipment, doing service work on washateria equipment, and selling parts for such equipment. The company maintains an inventory of parts and approximately 20% of their gross receipts is derived from the sale of parts. There is testimony that a customer who buys new equipment from a company ordinarily will also buy parts from that same company.

At the time of the trial B & H Parts Company was engaged in both the sale of new equipment and the sale of parts. There was a conflict in the evidence as to whether or not B & H was engaged in the sale of new equipment at the time of the purchase of the company by Mr. Hullum. The trial court will be presumed to have found that B & H Parts Company was not engaged in the sale of equipment at the time it was purchased by Mr. Hullum. A company engaged in the sale of commercial washer and dryer parts obviously would not be in a business identical to that of a company engaged in the sale of equipment and parts for commercial laundries. . Frederick agreed he would not take employment in a company doing a “similar” business. The question is whether or not the two businesses are similar.

During the course of the trial Frederick was asked if he had discussed with Mr. Hullum the covenant not to compete. When he answered that he had discussed this covenant, he was asked whether he recalled what those discussions were. At this point an objection was imposed on the basis of the parol evidence rule. The objection was sustained and defendant Frederick offered testimony on a bill of exception. On the bill Mr. Frederick testified that he had several discussions with Mr. Hullum during which he advised Mr. Hullum that he was selling commercial equipment and that he intended to continue in that business. He did not construe the language of the covenant to prohibit his engaging in the business of selling washers and dryers. The testimony taken on the bill of exception was not offered into evidence.

The injunction issued by the trial court prevents Frederick from being employed by Commercial Washer & Dryer Company, but it does not enjoin him from engaging in the business of the sale of new or used equipment. Had the testimony contained in the bill of exception been properly offered into evidence and excluded, such a ruling on the part of the trial court would not have constituted reversible error in view of the judgment entered.

The term “similar business” is perhaps overbroad. The order entered by the court, however, does not have this defect. Mr. Frederick is specifically enjoined from engaging in the business of the sale of commercial washer and dryer parts and from being employed by Commercial Washer & Dryer Company. We must presume that the court has found as a fact that the Commercial Washer & Dryer Company is engaged in a similar business. The factual support for such a finding has not been attacked by a point on this appeal.

The fact that the business operated by Commercial is broader than that of B & H at the time of the sale will not defeat the conclusion that the two businesses are similar within the meaning of the covenant. The two businesses directly compete in the sale of parts. They sell to the same customers and satisfy the same economic needs and desires of those customers. See Annotation, Lease Covenant Against Competition, 97 A.L.R.2d 4.

It is contended that the covenant not to compete is invalid in that it is not supported by consideration. Frederick relies on that provision in the contract for sale that “No part of the purchase price shall be allocated to good will.” The agreement specifically provided for the sale of the business as a going concern and for the sale of the good will of the company. The conveyance of the good will was part of the consideration flowing to the purchaser for his agreement to purchase the assets of the business. The contract must be considered as being indivisible in that full and complete performance on the one side constituted the consideration for performance on the other. In such a situation, all promises and stipulations are dependent, and the consideration supports the entire contract. Frankfurt Finance Company v. Treadaway, 159 S.W.2d 514 (Tex.Civ.App.—Dallas 1942, writ ref’d w.o.m.).

Appellee presents a cross-point contending that the trial court erred in failing to prohibit Frederick from participating in businesses dealing in commercial washer and dryer equipment. This contention is based on certain testimony that prior to the year 1975 B & H Parts Company was engaged in the sale of equipment as well as parts. Mr. Frederick testified positively that B & H Parts Company was not engaged in the sale of commercial equipment although he operated a business under the assumed name of Koinway Sales Company from the same premises which was engaged in that business. One of the witnesses produced by Mr. Hullum testified that Mr. Frederick had a business under that name which was engaged in the sale of equipment. Mr. Frederick also testified that following the sale of B & H Parts Company to Mr. Hullum he continued to engage in the business of selling equipment for three years without protest on the part of Mr. Hullum. He testified that Mr. Hullum knew he was selling equipment and made no protest to him prior to the filing of this suit. The trial court’s presumed finding that B & H Parts Company was not engaged in the sale of equipment at the time of the sale of the company to Mr. Hullum is supported by sufficient evidence. The court did not abuse its discretion by refusing to enjoin Mr. Frederick from engaging in the business of selling equipment.

The judgment is affirmed.


author: AKIN, Justice.

text:
    Bernice SMITH, Appellant, v. TEXAS IMPROVEMENT COMPANY, Appellee.
    No. 19554.
    Court of Civil Appeals of Texas, Dallas.
    July 14, 1978.

      Sonja Staron, Dallas, for appellant.
    Jay M. Goltz, Dallas, for appellee.
   AKIN, Justice.

Bernice Smith sued the Texas Improvement Company (TIC) in the county court at law for damages resulting from alleged breaches of warranty and deceptive trade practices in connection with the sale of an air conditioning unit. In her original petition, Smith did not claim a specific amount of damages; however, in her first amended petition, she claimed damages totaling $5,000.55, which exceeds by fifty-five cents the jurisdictional limit of the county court at law, but prayed for judgment “in the amount of $5,000.” A later supplemental petition prayed for judgment “in the amount not to exceed $5,000.” Upon trial to a jury, a verdict was returned in the sum of $3,840 in damages, together with $2,000 in attorney’s fees. Prior to trial, TIC had filed a plea in abatement alleging that the court lacked jurisdiction because the $5,000.55 claimed in the body of Smith’s first amended petition exceeded the jurisdictional limits of the county court at law. After verdict, TIC filed a motion for judgment n. o. v. alleging, among other things, that there was no evidence to support the jury’s award of damages. The trial court sustained both the plea in abatement and the motion for judgment n. o. v. and rendered judgment that plaintiff take nothing. Smith has filed a “limitation of appeal” pursuant to Rule 353 of the Texas Rules of Civil Procedure in an attempt to limit her appeal to the jurisdictional question. We conclude that this limitation is ineffective, and that even though the trial court erred in concluding that it lacked jurisdiction of the case by virtue of the excessive claim in Smith’s petition, the motion for judgment n. o. v. was properly sustained. Accordingly, we affirm.

Limitation of Appeal

Before reaching the merits of this case, we must first consider whether the “limitation of appeal” filed by Smith was effective to narrow the scope of this court’s appellate review solely to the jurisdictional question. If the limitation is proper, the sole question here is whether the court erred in deciding it lacked jurisdiction, and TIC is precluded from urging affirmance on the basis of the motion for judgment n. o. v. We conclude, however, that Rule 353, which authorizes limitation of the scope of an appeal in certain situations, does not contemplate the type of limitation attempted here. By its terms, Rule 353 only allows limitation with respect to a “severable” portion of a judgment. In the present case, the question of jurisdiction is not “severa-ble” from the ruling on the motion for judgment n. o. v. because each ruling, standing alone, disposes of the entire case, and, as such, they are alternative, rather than “severable” rulings. An appeal cannot be limited where the issue from which the appeal is taken necessarily calls the entire controversy into question. See Evans v. De Spain, 37 S.W.2d 231 (Tex.Civ.App.—Austin 1931, no writ) (owner could not limit appeal to adverse money judgment without bringing up for review part of judgment which ousted lessee); cf. Barnsdahl Oil Co. v. Hubbard, 130 Tex. 476, 109 S.W.2d 960 (1937) (in suit to quiet title to several tracts of land, limitation of appeal to issues relating to a single tract held proper). We hold, therefore, that Smith’s attempted limitation of this appeal to the jurisdictional issue is ineffective, and that the entire case is before us for review.

Jurisdiction of the Trial Court

In its plea in abatement, TIC contended that the trial court lacked jurisdiction because in the body of her first amended petition, Smith claimed damages in excess of the $5,000 jurisdictional limit of the county court at law. The trial court sustained this plea and rendered a take-nothing judgment against Smith. We disagree with the trial court’s ruling in this respect. Smith’s original petition did not pray for damages in excess of the jurisdictional amount; indeed, the original petition did not specify any particular amount of damages, but simply sought the “full contract price” of the defective unit, together with costs and attorney’s fees. Presumably, the full contract price of the unit and attorney’s fees was less than five thousand dollars, the jurisdictional limit of the county court at law. This is true because we must presume in favor of jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition. Groves v. First National Bank, 11 Tex. 555, 14 S.W. 163 (1890); Hannon v. Henson, 15 S.W.2d 579 (Tex.Comm.App.—1929, jdgmt. adopted). Jurisdiction, of course, is determined by the amount in controversy at the time the original pleading is filed. Guerra v. Weatherly, 291 S.W.2d 493 (Tex.Civ.App.—Waco 1956, no writ); Hudson v. Norwood, 147 S.W.2d 826 (Tex.Civ.App.—Eastland 1941, writ dism’d, jdgmt. corr.). Once jurisdiction attaches, it cannot be defeated by any subsequent fact or event. Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (1962); Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762, 763 (1924); Cook v. Jaynes, 366 S.W.2d 646, 647 (Tex.Civ.App.—Dallas 1963, no writ). As the Isbell case first held, the fact that an amended petition alleges damages in excess of the jurisdictional limits of the county court does not deprive that court of the jurisdiction it properly acquired when the original petition was filed. Accordingly, we hold that the county court erred in sustaining the plea in abatement challenging its jurisdiction over the present case.

The Motion for Judgment N. O. V.

Since we have held that the trial court had jurisdiction over this case, it follows that the court had authority to rule on the motion for judgment n. o. v. One of the grounds asserted in the motion for judgment n. o. v. was Smith’s failure to prove the amount of her damages. Since the trial court sustained the motion for judgment n. o. v. without limitation to any particular ground, we presume that each of the grounds specified in the motion is an independent, alternative basis for the court’s take-nothing judgment. Cf. McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964); McAx Sign Co., Inc. v. Royal Coach, Inc., 547 S.W.2d 368, 369 (Tex.Civ.App.—Dallas 1977, no writ) (motion for instructed verdict). No statement of facts has been filed, and in the absence of statement of facts, we must presume that the evidence adduced at trial supports the trial court’s judgment. Burson v. Montgomery, 386 S.W.2d 817 (Tex.Civ.App.—Houston 1965, no writ); Dyche v. Simmons, 264 S.W.2d 208 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.). Although we have found no authority on point, we hold that a corollary to the presumption of evidence in the absence of a statement of facts is a presumption that the statement of facts, if present here, would show the absence of evidence of plaintiff’s damages. Such a presumption is in accord with the principle that on appeal all presumptions will be indulged in favor of the trial court’s judgment. See McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649 (1935); Fenton v. Wade, 303 S.W.2d 816 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.) (rulings of the trial court are presumptively correct unless error is shown by the record).

Affirmed.

GUITTARD, C. J., not participating.

      . We must address this jurisdictional question because if the trial court had no jurisdiction, it had no authority to rule on the motion for judgment n. o. v. which, as we shall discuss later, forms the basis of our affirmance here.

      . The “excessive” claim only appeared in the amended and supplemental petitions.

      . If the trial court lacked jurisdiction, the ruling on the motion for judgment n. o. v. would be a nullity because when a court lacks jurisdiction, the only valid order it may render is one of dismissal. Berger v. Berger, 497 S.W.2d 453 (Tex.Civ.App.—El Paso 1973, no writ); City of Beaumont v. West, 484 S.W.2d 789 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).


author: McDONALD, Chief Justice.

text:
    Jess F. STILL, Sr., Appellant, v. LIBERTY LEASING CO., INC., Appellee.
    No. 5852.
    Court of Civil Appeals of Texas, Waco.
    July 14, 1978.
    Rehearing Denied Aug. 31, 1978.
    James R. Cornish, Houston, for appellant.
    Wendell S. Loomis, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Still from $9,453.01 judgment against him and for plaintiff Liberty Leasing Co., Inc.

Plaintiff Liberty Leasing sued defendant Still on a judgment it had obtained against defendant in Illinois.

Defendant answered the Illinois judgment was void because the Illinois Court did not have jurisdiction over him; that he was never personally served with process; had no knowledge of the suit or judgment; and that rendition of the Illinois judgment was without due process of law as required by the Constitution of the United States.

Trial was before the court which rendered judgment for plaintiff on the Illinois judgment for $9,453.01.

Defendant appeals on one point:

“The court erred in rendering judgment for plaintiff on Illinois judgment because said Illinois judgment is void; that the Illinois Court lacked jurisdiction over nonresident defendant because he was not served with process, nor did defendant have notice of said suit; that the rendition of judgment against defendant by the Illinois Court without service of process is not due process of law as required by the United States Constitution, Fourteenth Amendment.”

The facts are without dispute. Plaintiff is an Illinois Corporation. Defendant lives in Texas. On January 21, 1969 plaintiff and defendant entered into a written lease agreement covering certain construction equipment. Paragraph 21 of the lease provides:

“This agreement shall be deemed to have been made in Cook County, Illinois * *. The LESSEE hereby designates Lowell Sachnoff, 105 West Adams St., Chicago, Illinois 60603 and/or William Weaver, 105 West Adams St., Chicago, Illinois 60603 as agents for the purpose of accepting service of any process within the State of Illinois, and the said agent agrees to forward by certified mail any process served upon him to the LESSEE at its address as set forth above.”

On July 10, 1974 the Circuit Court of Cook County, Illinois rendered judgment for plaintiff and against defendant for $8000. such judgment reciting:

“This cause coming on to be heard * * the court finding that defendants] * * Jess F. Still have been duly served with summons and have failed to file their appearance and answer thereto; that it has jurisdiction over the person of said defendants and over the subject matter of the complaint; * * the court finds for plaintiff Liberty Leasing Co., Inc., and against defendants * * Jess F. Still and assesses damages on the verified complaint of $8000.”

Defendant was not served with any process in the Illinois suit and had no knowledge of the Illinois judgment until suit was filed in Harris County. Defendant has had no communication from the agents named in the lease, and testified unequivocally that he had not been served; that he had never been notified of the Illinois suit by such agents; and had no knowledge of such suit.

There is no evidence that the agents appointed in the lease were served with process in the Illinois suit. As noted the Illinois judgment recites that defendants were “duly served with summons.” If there had been evidence that the agents appointed to receive process had in fact been served, the Illinois judgment would be enforceable in Texas as it would be in Illinois.

Jurisdiction of the Illinois Court is presumed when the authenticated copy of the Illinois judgment is introduced into evidence, and all prior requisites to the rendition of a valid judgment such as service upon the defendant when such is recited will be presumed to have been fulfilled unless disproved by extrinsic evidence or by the record itself. These presumptions and the authenticated copy of the foreign judgment cast upon defendant the burden of an affirmative showing that there was an omission of some requisite to a valid judgment, here a want of service of process. Paschall v. Geib, Tex.Civ.App. (Dallas) NRE, 405 S.W.2d 385.

But such presumption of validity of the judgment and service on defendant is not evidence, but rather a rule of procedure or an “administrative assumption” which “vanishes” or is “put to flight” when positive evidence to the contrary is introduced. The presumption is a true presumption, which has been defined as a “rule of law laid down by the courts which attaches to facts certain procedural consequences.” It places on the party against whom it operates the burden of producing evidence. It is not evidence, and when met by rebutting proof is not to be weighed by the jury or finder of fact as evidence. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763.

Thus, the authenticated Illinois judgment raised a presumption that service of process was had on defendant; but such presumption vanished when defendant testified unequivocally he had not been served. At this juncture it was incumbent upon plaintiff to adduce evidence that the agents for service named in the lease agreement had actually been served, if such was the fact. This, plaintiff did not do.

Defendant’s point is sustained and the judgment is reversed and this cause is remanded to the trial court under the rule laid down in Morrow v. Shotwell, Tex., 477 S.W.2d 538, and Scott v. Liebman, Tex., 404 S.W.2d 288.

REVERSED AND REMANDED.


author: MURRAY, Justice.

text:
    Manuel AMAYA, Jr., Appellant, v. FIRST STATE BANK OF SAN DIEGO, Appellee.
    No. 16047.
    Court of Civil Appeals of Texas, San Antonio.
    July 19, 1978.
    Chase & House, Corpus Christi, for appellant.
    Lloyd, Ellzey & Lloyd, Alice, for appellee.
   MURRAY, Justice.

This appeal involves a suit on a promissory note in the amount of $6,000, executed on March 18, 1975, by Manuel Amaya, Jr., appellant, to First State Bank of San Diego, appellee, with a counterclaim by appellant alleging usury. It is undisputed that the $6,000 note was executed to renew other notes owed by appellant to appellee and appellant’s claim of usury involves one of these notes. After a trial before the court, without a jury, judgment was entered in favor of appellee on the $6,000 note and appellant has perfected an appeal to this court.

Appellant’s one point of error on appeal is, “The trial court erred in failing to credit the offset of the Appellant on the renewal note sued upon by Appellee; the consideration having failed because of the usurious prior interest which culminated in the renewal of the $6,000 note sued upon by the Appellee.”

The record shows that the $6,000 note was a renewal note and therefore the burden of proof was on appellant to show failure of consideration. Thompson v. Gandy, 160 S.W.2d 113 (Tex.Civ.App.—Eastland 1942, writ ref’d). In Thompson, supra, the note in question was a renewal note. The court held that a renewal note imports consideration. The court said at page 114:

It was undisputed that the note was a renewal by the same makers of the note for $3,900 first described in plaintiff’s petition. As such, it effected an extension of time in which to pay the amount originally promised to be paid. Said first note, as did the second, imported consideration and therefore the latter shows in addition to such imported original consideration a further consideration consisting of an extension of the time in which to pay the balance of the sum originally promised to be paid.
The note importing a consideration, appellant had the burden of proving want of consideration. He joined the issue by his sworn denial, but failed to prove there was no consideration.

The appellant also had the burden of proving that the prior note was usurious. Mays v. Pierce, 281 S.W.2d 79 (Tex.1955). In 58 Tex.Jur.2d Usury § 73 (1964), the rule is stated as follows:

There is a presumption that a transaction that involves the payment of interest is legal and untainted with usury, and also, that a borrower has received the entire amount of the principal called for in any note executed by him. One who claims that a transaction is usurious has, therefore, the burden of establishing his contention.

The one prior note that appellant claims to be usurious is reflected in the evidence by a ledger sheet of the appellee. The allowable interest on this prior loan is controlled by Tex.Rev.Civ.Stat.Ann. art. 5069-4.01 (1971), which provides as follows:

Any bank, savings and loan association or credit union doing business under the laws of this State or of the United States, and any person licensed to do business under the provisions of Chapter 3 of this Subtitle relating to regulated loans may contract for and receive on any loan made under the authority of this Chapter repayable in consecutive monthly installments, substantially equal in amount, an add-on interest charge of Eight Dollars per One Hundred Dollars per annum for the full term of the loan contract.

The ledger sheet shows the date of this prior loan was April 16,1970, and the maturity date was April 1972, it being a 24-month contract. The interest to be charged is eight per cent add-on and the total interest, if the contract had run its full term, would be $1,139.04. The ledger sheet shows thirteen transactions and it shows the date on which each occurred and for each transaction there is a code number showing the nature of the transaction. Eleven of these transactions have the code number 2, one has the code number 5 and one has the code number 0. An officer of the bank was on the witness stand and was not asked by appellant or appellee what the code numbers meant. It was not the burden of ap-pellee to explain the ledger sheet. Appellant called one expert witness, a C.P.A., who testified relative to the ledger sheet and who made a computation of simple interest. This witness made no effort to compute whether or not the ledger sheets showed interest in excess of the eight per cent add-on interest allowed by the Statute. This witness testified that he could not identify the code numbers 5 and 0. Appellant himself testified that he did not remember how much money he had paid on this note or how much money he had received in rebate. Since eight per cent add-on interest is the allowable amount, as clearly specified by the statute, and as admitted by appellant, the computation of simple interest is of no use in determining whether or not usury was involved. Appellant has failed to meet his burden of proof.

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    Elbert L. SHAW, Appellant, v. Shirley CORCORAN, Appellee.
    No. 12762.
    Court of Civil Appeals of Texas, Austin.
    July 19, 1978.

      Frank Roberts, Piperi, Roberts & Morris, Killeen, for appellant.
    William P. Gibson, Gibson & Looney, Kil-leen, for appellee.
   SHANNON, Justice.

The issue is whether appellee’s claim for partition of her community interest in her former husband’s military retirement benefits is barred by limitations. Because the claim is barred, we will reverse the judgment.

Appellee Shirley Corcoran sued appellant Elbert L. Shaw in the district court of Bell County for partition of Shaw’s military retirement benefits. Shaw’s defense was, in part, that Corcoran’s claim was barred by the two-year or the four-year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5526 and 5529 (1958). Shaw also filed a cross-action praying that Corcoran be required to pay child support for two minor children. Upon trial to the court, judgment was entered awarding Corcoran thirty-two percent interest in the military retirement benefits as her community property. The judgment also provided that Corcoran pay $50.00 each month in child support.

The statement of the facts was agreed. Tex.R.Civ.P. 378. The parties were married in 1953 and were divorced in 1967. Shaw served in the United States Army before and during his marriage to Corcoran and for a short time after their divorce. The divorce judgment made no mention of retirement benefits. Shaw retired from the Army on November 1, 1970, and he has received monthly retirement payments since November 30, 1970. After Shaw refused to pay to Corcoran any part of the retirement payments, she filed suit in November, 1970, in the district court of Bell County for partition of her interest in the benefits. Shaw was served and he made an appearance. Corcoran did not pursue her suit and it was dismissed for want of prosecution on May 16, 1975. Corcoran refiled her suit for partition of the retirement benefits on May 12, 1977.

Shaw’s single point of error is that Cor-coran’s claim for partition was barred by limitations. Corcoran did not file a cross-point complaining of the award of child support.

Military retirement benefits are community property even though at the time of the divorce the benefits have not matured and are not subject at that time to possession and enjoyment. Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976); Taggart v. Taggart, 552 S.W.2d 422 (Tex. 1977). If the divorce judgment does not provide for division of such retirement benefits, the parties become tenants in common in the benefits with right to partition. Busby v. Busby, 457 S.W.2d 551 (Tex. 1970). Accordingly, after the divorce Corcoran was a tenant in common with Shaw in those retirement benefits which accrued during her marriage to Shaw.

Shaw’s repudiation, in the autumn of 1970, of Corcoran’s right to share in the retirement benefits, set in operation the statute of limitations. See Dessommes v. Dessommes, 543 S.W.2d 165 (Tex.Civ.App. 1976, writ ref’d n. r. e.). By May 12, 1977, Corcoran’s claim for partition of her interest was barred by either the two-year or four-year statute of limitations unless Cor-coran’s filing of the first suit interrupted the running of the statute.

The filing of suit and the diligent issuance and service of citation toll the running of the statute of limitations. Rigo Manufacturing v. Thomas, 458 S.W.2d 180 (Tex. 1970). Although the filing of suit and service of citation interrupt the running of the statute, its dismissal for want of prosecution will have the same effect as if the suit had never been filed. Shields v. Boone, 22 Tex. 193 (1858); Chambers v. Shaw, 23 Tex. 165 (1859); see Primative Baptist Church v. Fla-Tex Corporation, 158 S.W.2d 549 (Tex.Civ.App. 1942, writ ref’d w. o. m.). Because Corcoran’s first suit was dismissed for want of prosecution, that suit did not interrupt the running of the statute of limitations. Corcoran’s claim for partition, then, was barred by May, 1977.

That part of the judgment awarding Cor-coran an interest in the retirement benefits is reversed and judgment is here rendered that Corcoran take nothing.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Joe M. ONTIVEROS, Appellee.
    No. 6687.
    Court of Civil Appeals of Texas, El Paso.
    July 19, 1978.
    Rehearing Denied Aug. 16, 1978.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Ray Stoker, Jr., Odessa, for appellant.
    Richard C. Abalos, Warren Burnett Associated, Richard J. Clarkson, Odessa, for ap-pellee.
   OPINION

WARD, Justice.

This workman’s compensation case was tried to a jury and resulted in a judgment for the claimant for total and permanent incapacity. Carrier complains on appeal that the evidence is factually insufficient to support the finding that the total incapacity was permanent. We reverse and remand.

In evaluating the appellate complaint, we are required to examine all of the evidence to determine if it supports the jury verdict. In this case, this is relatively simple as the material facts are hardly in dispute. The claimant, Joe M. Ontiveros, was 47 years of age at the time of the accident, had an eighth grade education, and had been a laborer all of his working life with a good work record. He was employed as a truck driver hauling mud for Baroid Division, National Lead Industries, and had held the job for some six months. It was hard, heavy work and his average weekly wage was $175.00. On May 28, 1975, while in Andrews County, he was injured while carrying a sack of mud which weighed about 100 pounds. He slipped and fell to his knees and felt a funny burning sensation in his back. He continued to work that day carrying sacks, after which he drove to his home in Fort Stockton, arriving there around 10:30 or 11:00 p. m. He told his wife about the accident and she applied Ben-Gay to his back. The next morning he was in such pain that his wife had to help him dress and had to put on his shoes. He went to work that day through economic necessity. On the job, he was sent to Odessa and helped unload sacks of mud out of a boxcar. That night he returned home complaining of pain. The next morning he felt sick and he saw Dr. Jones in Fort Stockton who took an x-ray, gave him a shot, prescribed pain pills, and advised him to get bed rest and apply heat to his back. When he took the pills, the pain was eased for about four hours. His supervisor went to see him at his home on June 1st and told him he could come back to work and that he could “piddle around” the Company yard in Fort Stockton doing light duty so as not to lose any time. He returned to Dr. Jones on June 3rd and was advised that he could return to light work. He continued in his employment with Bar-oid doing light yard work as a dispatcher until September, 1975, when he quit his job. The reason that he quit was disputed. On-tiveros stated that he quit because his supervisor asked him to see if he could find a job involving lighter work. His supervisor, however, stated that he quit of his own accord as he wanted to return to an old job as a cement finisher and carpenter.

On September 22nd, because of the continued pain in his back, he returned to Dr. Jones, who in turn referred him to Dr. Zeeke, a bone specialist in Odessa. Dr. Zeeke prescribed a back brace for him and the Plaintiff has worn the brace since the accident. He then went to work for Bobbit Oil Company as a filling station manager and operator and stayed there for about six months. During that period of time, he worked the front of the service station, but he could not fix flats. He quit his job with Bobbit, not because of his back, but because one of his legs swelled up and the bottom of his feet felt hot. He then went to see Dr. Pate in Alpine on March 23,1976, and there he received an injection and a prescription for further medication. He returned on March 26th and received some instructions concerning how to get up, how to sit down, and how to sleep. Dr. Pate referred him to Dr. Greentree in Marfa, a chiropractor, and he received some 12 treatments, the last one being on August 11, 1976. Dr. Greentree treated him for his back with different machines, vibrators and massages. After the treatments, he would feel a lot better. In March, 1977, he went to work for Burrows Trucking Company as a truck driver on a water truck hauling water to various drilling operations and was still employed by Burrows at the time of the trial in April, 1977. He has missed no days at Burrows since going to work for that company, was being paid $3.75 an hour, and was working 60 to 70 hours a week, being paid time and a half for overtime. He took off work to attend the trial and expected to return to work immediately following the trial. He still wears his back brace, continues to have pain in his back, has difficulty in lifting objects but can lift objects up to 35 pounds. He stated that he was not able to work but has had to do it for economic necessity. He still experiences trouble bending, stooping, and riding in a car, but has been able to support himself and his family since September, 1975, by working. He stated that he felt that his physical condition had improved during the six months immediately before the date of trial.

His wife testified that he was in a lot of pain on the date of the accident, he has pain from walking or sitting in a position too long, and is not able to sleep comfortably at night; that he has worn the back brace since June of 1975 and he wears it all day everyday; that he sleeps on a bed with a board under the mattress; that the family does not travel, fish or play golf because the husband is always in pain; and that he is not the same man he was before May of 1975.

The only medical evidence introduced was the surgeon’s final report and bill from Dr. Jones, and it indicated that the Plaintiff was able to resume work as of June 4,1975, that he was capable of doing the same work as before the injury, and that there would be no permanent disability.

As previously indicated, the jury found that the duration of the Plaintiff’s total disability would be permanent, the term “permanent disability” being defined to the effect that it does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment. The term “permanent” was defined as “a condition, if any, which will remain throughout the lifetime of the Plaintiff.”

We are again called on to announce that we recognize the well established rules that permanent disability may reasonably be inferred from circumstantial evidence produced by lay witnesses, and this is true even though such evidence is contradicted by the testimony of medical experts. Further, that there is no fixed rule of evidence by which a claimant in a workman’s compensation case is required to establish the fact that he has suffered an injury that caused permanent disability, it being recognized that proof of duration and extent of a disability resulting from injury is, like the assessment of damages in a personal injury action, at best an estimate which must be determined by a jury from all the pertinent facts before it. And, finally, the fact that an employee continues to work after he is injured is not controlling on the question of total and permanent disability, but this is simply one fact to be considered by the jury along with other facts and circumstances introduced in evidence. Texas Employers Insurance Association v. Thomas, 517 S.W.2d 832 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.); Hartford Accident & Indemnity Company v. Williams, 516 S.W.2d 425 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Texas Employers’ Insurance Association v. Stephenson, 496 S.W.2d 184 at 188 (Tex.Civ.App.—Amarillo 1973, no writ).

Granted those rules are of importance, we feel rules of equal force are not only to be cited but actually control the disposition of this case. As stated in Montoya v. American Employers Insurance Company, 426 S.W.2d 661 (Tex.Civ.App.—El Paso 1968, writ ref’d n. r. e.):

“ * * * But the fact remains that there must be some pertinent facts bearing on an incapacity to work which will last throughout the life of the claimant. Otherwise, the situation becomes one of placing too great a burden and too much responsibility on the court or jury, and leaves the outcome entirely too vulnerable to speculation, as found by this court in Travelers Insurance Co. v. Linder, Tex.Civ.App., 368 S.W.2d 797, n. r. e. * * ”

The same thought was expressed in Texas Employers’ Insurance Association v. Hawkins, 387 S.W.2d 469 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.), where the claimant returned to work some ten weeks after an injury and worked continuously for a period of three years prior to trial. It was stated:

“ * * * The evidence is clear Hawkins’ condition did not, in the three years between the injury and second trial, prevent him from procuring and retaining regular, well-paying employment in the same field he was engaged in prior to the injury. In our opinion his work record is not one of a person totally incapacitated. He had a continuing earning capacity. We are convinced the jury finding of total and permanent incapacity was against the great weight and preponderance of the evidence. * * * ”

To the same effect, see Travelers Insurance Co. v. DeLeon, 456 S.W.2d 544 (Tex.Civ.App.—Amarillo 1970, writ ref’d n. r. e.); Texas Employers’ Insurance Association v. McClellan, 490 S.W.2d 946 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.); Indemnity Insurance Company of North America v. Cady, 356 S.W.2d 323 (Tex.Civ.App.—San Antonio 1962, no writ). These cases point out that they are not based on the lack of medical evidence, nor are they based on the failure of either the claimant or his wife to testify that the injuries were permanent, for as lay witnesses they cannot testify to that opinion. In the main, those cases are based on the continuous work record of the claimant and that is the factor that is of most importance in the present case. We parallel what was stated in Commercial Insurance Company of Newark, New Jersey v. Puente, 535 S.W.2d 948 at 953 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.). The most that the claimant has shown is that he has suffered some permanent partial incapacity and that he cannot now perform heavy lifting such as he was performing when he was injured. But the overwhelming evidence from this record shows that his condition does not and has not prevented him from obtaining and retaining permanent and lucrative employment calling for lighter duties, which duties he is able to perform more than full time. The carrier’s insufficient point is sustained. The judgment of the trial Court is reversed and the cause is remanded for a new trial.


text:
    Esperanza GUTIERREZ, Appellant, v. Edward R. COLLINS, Appellee.
    No. 6747.
    Court of Civil Appeals of Texas, El Paso.
    July 19, 1978.
    Rehearing Denied Aug. 16, 1978.

      Sam J. Dwyer, Jr., El Paso, for appellant.
    Dudley & Dudley, William C. Dudley, Paul W. Dudley, El Paso, for appellee.
   OPINION

WARD, Justice.

Plaintiff brought suit in El Paso for her damages for personal injuries received in an automobile accident that occurred in Zara-gosa, State of Chihuahua, Mexico. This appeal is from the action of the trial Court in sustaining the Defendant’s plea to the jurisdiction of the Court because of the dissimilarity of the Mexican laws. We affirm.

Esperanza Gutierrez alleged that, while riding as a passenger in an automobile, she was struck by a vehicle which was driven by the Defendant Edward R. Collins. She alleged that both she and the Defendant were residents of El Paso, and that the accident occurred December 25, 1973, on a public street in Zaragosa, State of Chihuahua, Republic of Mexico, as the result of the negligence of the Defendant. She further alleged that as a result of her injuries, she suffered pain and suffering and a loss of earning capacity, and, according to supplemental pleadings, she cited various Articles of the Mexican Labor Law Section of the Federal Code of the Republic of Mexico under which her loss of wages could be computed, and an Article of the Civil Code of the State of Chihuahua by which she would be entitled to compensation as moral reparations which would be in lieu of damages for her pain and suffering. The Defendant filed his plea to the jurisdiction and alleged that the laws of the State of Chihuahua and of the Republic of Mexico were so dissimilar to the laws of this State that they could not be enforced, and that the cause of action should be dismissed. Hearing was held on the motion to dismiss, and the Defendant there offered the testimony of a practicing attorney from Juarez, Mexico, who qualified as an expert and who described the applicable laws of the Republic of Mexico and the State of Chihuahua which would control the recovery for loss of wages and for moral reparations. As pointed out, the trial Court sustained the Defendant’s plea to the jurisdiction and dismissed the cause of action.

The Plaintiff’s first point is that the Court erred in permitting the testimony of the Mexican attorney as proof of the statutory laws of Mexico covering the damages recoverable, the argument being made that such laws of another nation may not be proved by the parol testimony of lawyers. Garza v. Greyhound Lines, Inc., 418 S.W.2d 595 (Tex.Civ.App.—San Antonio 1967, no writ); Hunter v. West, 293 S.W.2d 686 (Tex.Civ.App.—San Antonio 1956, no writ). The point is overruled as the statement of facts notes that two of the Defendant’s exhibits were the Mexican Labor Law Volume and the Civil Code and Code of Civil Procedure for the State of Chihuahua, and they were a part of the record before the trial Court. They are not a part of the present statement of facts. They were considered by the trial Court without objection. In the absence of a complete statement of facts, it must be presumed that the evidence was sufficient to support the trial Court’s judgment. Canion v. County of Jackson, 507 S.W.2d 814 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Plaintiff next asserts that the trial Court was in error in dismissing the cause of action on the ground that the trial Court lacked jurisdiction. The Plaintiff is correct in her assertion that the matter presented to the trial Court is not a question of true jurisdiction in the sense that it may be raised for the first time on appeal. Flaiz v. Moore, 359 S.W.2d 872 at 875 (Tex.1962). Words aside, the principle involved is that the dissimilarity doctrine, as established in this State at the time this case arose, required the trial Court to dismiss any negligence suit that arose in Mexico where the proof established that the laws of that place of injury were such that they could not be enforced in Texas. Carter v. Tillery, 257 S.W.2d 465 (Tex.Civ.App.—Amarillo 1953, writ ref’d n.r.e.). The point is overruled.

The Plaintiff’s final points are an appeal that we abolish the dissimilarity doctrine in favor of the most significant contacts approach, as the latter would be most appropriate to the present cause of action between two Texas residents, and in particular to this Plaintiff who otherwise will probably be without any relief. Regardless of the merits of the Plaintiff’s argument, this intermediate Court must decline the invitation until directed to the contrary by our Supreme Court. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex.1968). Finally, we refuse to consider the application of the 1975 amendment to Article 4678, Tex.Rev.Civ.Stat.Ann., to this 1973 cause of action. The Statute will not be given retroactive effect. Cass v. Estate of McFarland, 564 S.W.2d 107 (Tex.Civ.App.—El Paso 1978, no writ). The last points are overruled.

The judgment of the trial Court is affirmed.