text:
    Joseph GUILLORY, Appellant, v. The STATE of Texas, Appellee.
    No. 56318.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1977.
    Jim D. Vollers, State’s Attorney, Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury for indecency with a child, a violation of V.T. C.A., Penal Code, Section 21.11. The punishment, enhanced by prior conviction for rape under V.T.C.A., Penal Code, Section 12.42(a), was assessed by the jury at imprisonment for seven (7) years.

The record is before us without a transcription of the court reporter’s notes. No brief was filed in the trial court in appellant’s behalf, and none has been filed here. For the reasons to be stated below, we have concluded that the appeal must be abated.

The record reflects that appellant was sentenced and gave notice of appeal on February 20, 1976. On February 23, 1976, he executed two affidavits of indigency. In the first, he swore that he was “too poor to employ counsel.” In response to that affidavit, the trial court appointed attorney Katharine Halsey to represent appellant on appeal. In the second affidavit, appellant swore that he was “without funds, property or income; that because of his poverty he (was) unable to pay for a transcription of the evidence which is necessary to be filed with the Court of Criminal Appeals of the State of Texas.” In this affidavit, he requested the Court to “direct the Court Reporter to prepare a Statement of Facts as provided by law, in question and answer form.” In response to this affidavit, the trial court entered an order which stated that “after hearing testimony on the above application, . . . and it appearing that the defendant is entitled to the relief prayed for, it is ORDERED that the Court Reporter of the Court prepare a Statement of Facts in question and answer form of the testimony in said cause.”

Although Art. 40.09(3), Vernon’s Ann.C. C.P. provides that a “transcription [of the court reporter’s notes] applicable to any proceeding occurring before or within a period of ninety days after notice of appeal shall be filed with the clerk for inclusion in the record not later than the end of such period,” no such transcription was filed within that 90 day period. Prior to May 25, 1977, Art. 40.09(3) also provided:

“The times herein provided for filing transcription of the notes of the reporter may be extended by the court for good cause shown, and the court shall have the power, in term time or vacation, on application for good cause to extend for as many times as deemed necessary the time for preparation and filing of the transcription, and the approval of the record after the expiration of the time provided by law for its approval shall be sufficient proof that the time for filing the transcription was properly extended, and the transcription so filed shall be construed as having been filed within the time required by law.”

However, the record is silent as to whether either the court reporter or appellant’s counsel applied for, or the trial court granted, any extensions of time for the preparation and filing of a transcription of the court reporter’s notes prior to May 25,1977.

Effective May 25,1977, Art. 40.09(3), was amended. That amendment deleted the language immediately quoted above which gave the trial court the authority to grant extensions of time for filing a transcription of the court reporter’s notes. Instead, Art. 40.09(16), Vernon’s Ann.C.C.P., was added. Art. 40.09(16), effective May 25, 1977, provides:

“Extensions of time for meeting the limits prescribed by sections 3, 6, 9, and 10 of this Article for either the appellant or the State may be granted by the Court of Criminal Appeals or a judge of the Court for good cause shown on timely application to the Court of Criminal Appeals.”

However, neither the court reporter nor appellant’s counsel has sought an extension of time from this Court for preparation and filing of a transcription of the court reporter’s notes, since May 25, 1977.

The clerk of the trial court prepared the record without a transcription of the court reporter’s notes, and, after over 14 months had elapsed since the giving of notice of appeal, the clerk of the trial court sent notice of completion of the record to appellant’s counsel on June 6, 1977. On June 21, 1977, the 15th day following the mailing of notice of completion of the record, appellant’s court-appointed counsel filed her timely objections to the record pursuant to Art. 40.09(7), Vernon’s Ann.C.C.P. These objections stated that the record on appeal did not include a “statement of facts”; that the attorney had diligently tried to obtain the “statement of facts” from the court reporter, Mary Jane Pontzler, but had failed to obtain the same. Counsel then requested that the trial court issue notice ordering the court reporter to appear before the court and show cause why the court reporter had not “heretofore submitted the Statement of Facts in this cause.” In response to counsel’s objections, the record reflects an order signed by the trial judge and filed with the clerk on June 21, 1977. That order states, in pertinent part:

“On the _ day of _, 1977, came to be heard the Motion of Defendant, Joseph L. Guillory, by and through his attorney of record, Katharene I. Halsey, and after due consideration it is accordingly ORDERED, ADJUDGED AND DECREED that this Motion is hereby (granted) (denied), [sic].
“The show cause date is set for 1st day of JULY, 1977.”

Ironically, two days later, on June 23, 1977, the trial court entered an order approving the record. That order recited that “no objections have been made by either party, and upon examination of the record, I find it correct and approve the record and order same to be filed by the clerk as the record in this cause.” The record does not reflect what took place on July 1, 1977. Nor does it show what rulings, if any, the trial judge eventually made in response to counsel’s objections to the record. In any event, the record was subsequently transmitted to this Court and was filed here on September 26, 1977.

Although it appears that appellant’s counsel timely objected to the record under Art. 40.09(7), Vernon’s Ann.C.C.P., it does not appear that the trial court followed that part of the statute which provides:

“If such objection [to the record] be made, or if the court fails to approve the record within five days after the expiration of such fifteen-day period, the court shall set the matter down for hearing, and, after hearing, shall enter such orders as may be appropriate to cause the record to speak the truth and the findings and adjudications in such orders, if supported by evidence, shall be final. In its discretion, the court may require the attendance of the defendant at such hearing. Such proceeding shall be included in the record, and the entire record approved by the court.” [Emphasis supplied].

See Chancelor v. State, 508 S.W.2d 638 (Tex.Cr.App.1974).

As stated above, effective May 25, 1977, Art. 40.09(3), (6), (9) and (10) were amended, and new subdivision 40.09(16) was added. Since that date, it appears to be the view of some of the trial judges of this State that, when the times for filing matters under Art. 40.09(3), (6), (9) and (10) have expired, they no longer have authority to see to it that such items are filed. This belief is apparently held because new Art. 40.09(16) requires extensions of time to be sought from this Court and not the trial court, contrary to former practice. Because of this apparent belief, we point out that, the provisions of Art. 40.09(16) notwithstanding, the trial court still has a duty under the Texas and federal constitutions to provide an indigent defendant with an adequate record on appeal, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Eskridge v. Washington, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Ex parte Mays, 510 S.W.2d 606 (Tex.Cr.App.1974); Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.1975), and the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Lopez v. State, 486 S.W.2d 559 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975).

A court reporter is the employee of the trial court, and the trial court has ample authority to require such reporter to file a transcription of his notes in a timely fashion. If the court reporter neglects or refuses to do his duties, the trial court can order him to do so within a specified period of time. If the court reporter refuses to comply with the trial court’s order, the court can issue another order requiring the court reporter to show cause as to why he should not be held in contempt. See Art. 1911a, Vernon’s Ann.Civ.St. And, if all else fails, the trial court can, of course, dismiss the court reporter from his employment.

As has been stated above, the trial court also has the duty to provide an indigent defendant with the effective assistance of counsel on appeal. This assistance, however, cannot be afforded without requiring that counsel file a brief in an appellant’s behalf. The trial judge has the authority to require appointed counsel to file a brief in appellant’s behalf. Luna v. State, 527 S.W.2d 548 (Tex.Cr.App.1975). If a court-appointed attorney fails to file a brief within the time provided by Art. 40.09(9) and fails to request an extension of time from this Court under Art. 40.09(16), the trial court still has the authority to require appointed counsel to file a brief in an appellant’s behalf. There are many ways for the trial court to exercise this authority. Upon learning that no brief has been filed in appellant’s behalf under Art. 40.09(9), the trial court can issue an order commanding court-appointed counsel to file a brief within a specified period of time. If no brief is filed within that time, the trial court can issue another order requiring counsel to show cause as to why he should not be held in contempt. See Art. 1911a, supra. The trial court can also report counsel to the appropriate grievance committee for disciplinary action. In the alternative, the trial judge can relieve an appointed attorney who has not fulfilled his duties to his client and appoint an attorney who will act as an advocate to represent the indigent on appeal. The trial judge can also see to it that recalcitrant attorneys receive no further appointments to represent indigents in his court.

Since the trial court ordered the court reporter to prepare and file a transcription of her notes on February 23,1976, the reporter has had over 18 months in which to comply with the trial court’s order. However, so far as this record reflects, the court reporter has yet to file a transcription of her notes with the clerk of the trial court.

Therefore, it is ordered that the court reporter, Mary Jane Pontzler, shall prepare, complete, and file with the clerk of the trial court a transcription of her notes within 15 days after the delivery of this opinion. Failure to comply with this order is grounds for contempt proceedings in this Court under Art. 1911a, supra.

We set aside the trial judge’s order of June 23,1977, which approved the record in the instant cause, and remand the case to the trial court for further proceedings. Upon the filing of the transcription of the court reporter’s notes with the clerk of the trial court, notice of completion of the record shall again be given to the parties pursuant to Art. 40.09(7). Further proceedings shall then be had in the trial court under the appropriate subdivisions of Art. 40.09, Vernon’s Ann.C.C.P. No motion for rehearing will be entertained.

The appeal is abated.


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    Everett Joe HOOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 56518.
    Court of Criminal Appeals of Texas.
    Oct. 29, 1977.
    Jim D. Yollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

Appellant was convicted by a jury for resisting arrest, a violation of V.T.C.A. Penal Code, Sec. 38.03. The jury assessed punishment of 90 days in jail.

The record is before us without a transcription of the court reporter’s notes. Although a docket entry in the record reflects that appellant is represented by retained counsel on appeal, no brief was filed in appellant’s behalf pursuant to Art. 40.09(9), V.A.C.C.P. There is no claim of indigency. Nevertheless, we find in the record unassigned error which should be reviewed in the interest of justice under Art. 40.09(13), V.A.C.C.P.

The judgment and the sentence state that appellant was not represented by counsel at trial without a recital that there was a knowing and intelligent waiver of counsel. The Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), after discussing constitutional authorities, stated:

“We hold, therefore, that absent a knowing and intelligent waiver, no person maybe imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” (Emphasis added.)

In the instant case, there is nothing in the record before us to show a knowing and intelligent waiver by appellant of his right to be represented by counsel at trial; we cannot presume such waiver from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Consequently, the judgment must be reversed and the cause remanded. Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975).

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      . In the first part of the printed judgment in which a blank was completed it states: “ . . . his counsel, NO ATTORNEY also being present.” In another printed part of the form it recites the appellant and his counsel were present when the jury brought its verdict on guilt in open court, but words in the printed form were struck to show the appellant did not have counsel when the jury returned in open court its verdict setting punishment.

      . A terse docket entry appearing to be made with a rubber stamp, “ . . . Def. warned and arraigned. Plea of NOT Guilty . . . ” is not sufficient to show a knowing and intelligent waiver of counsel.


author: BISSETT, Justice.

text:
    W. Oscar NEUHAUS, Trustee, Appellant, v. Douglas KAIN et al., Appellees.
    No. 1164.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 31, 1977.
    Rehearing Denied Oct. 20, 1977.

      Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, Joe Entzminger, Bay City, Barnet B. Skelton, Price & Skel-ton, Houston, for appellant.
    George D. Martin, Harris, Martin, Carmo-na, Cruse, Micks & Dunten, Galveston, L. DeWitt Hale, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is a suit for specific performance of a contract for the conveyance of approximately 852 acres of land. The subject matter of this suit was first before this Court in an appeal from a summary judgment that was signed on August 29,1973. See Kain v. Neuhaus, 515 S.W.2d 45 (Tex.Civ.App. Corpus Christi, 1974, no writ), where the judgment of the trial court was reversed, and the cause was remanded for trial on the merits.

Following the remand, trial before a jury commenced on March 15, 1976. Based on jury findings which were favorable to Douglas Kain, et al., defendants, a take nothing judgment was signed on May 26, 1976. The judgment does not identify each individual defendant by name, but simply refers to all defendants as “the Defendants, DOUGLAS KAIN, ET AL.” W. Oscar Neuhaus, Trustee, plaintiff, has duly perfected an appeal from that judgment.

The Kain family, defendant-appellees, were the owners of undivided interests in varying proportions of certain tracts of land in Matagorda County, Texas. A contract of sale covering the land, hereinafter sometimes called “Earnest Money Contract” and sometimes referred to as “contract,” was entered into by and between the members of the Kain family, as sellers, and W. Oscar Neuhaus, Trustee, as purchaser. The contract, among other provisions, contained an express provision to the effect that each seller who signed the same would reserve unto himself, his heirs and assigns, in the deed that was to be subsequently executed, an undivided one-half of his present interest in the minerals on, in and under the land. No mention was made therein that the sellers would also retain the right to negotiate future leases for mineral development of all minerals on, in and under the land. The contract, when presented to the defendants for signature, had already been signed by plaintiff.

On December 2, 1971, Barnet B. Skelton, Plaintiff’s attorney, personally delivered the contract to Douglas Kain. After some discussion, hereinafter detailed, and after some interlineations were made at the insistence of Douglas Kain which are not questioned in this appeal, the contract was signed by Douglas Kain. Thereafter, the contract was signed by the other members of the Kain family.

Skelton, by letter dated February 23, 1972, advised the sellers that the purchaser was ready to close the transaction. Accordingly, and in conformity with the terms of the contract, cashiers’ checks aggregating $56,000.00, the cash down payment, and the several vendors’ lien notes for the balance of the purchase price were executed and tendered the defendants, together with a general warranty deed with vendors’ lien retained, wherein there was reserved unto sellers, their heirs and assigns, forever, an undivided one-half (½) of their present interest in the minerals on, in, and under the subject land, together with 100% of the royalty then being paid from certain mineral leases covering part of the land involved.

All of the sellers, except Bobby M. Blanchard, refused to execute the deed or to accept the cashiers’ checks and vendors’ lien notes because the deed did not expressly reserve unto them the leasing rights of all the minerals on, in and under the subject land. Bobby M. Blanchard signed the deed on February 28, 1972. Plaintiff filed suit on April 20, 1972 against all of the sellers, except Bobby M. Blanchard, for specific performance of the contract.

Thomas Kain, Jr., by deed dated February 8, 1972, conveyed a portion of his interest in the subject land to Thomas Patrick Kain, Bernice Kain Dodd, Mamie Kain Litt-lejohn, Marie Ainsworth Stephenson, Made Ainsworth Kain, and Virginia Kain Gris-ham. All of the grantees in the deed had actual notice of the existing contract of sale.

The defendants named in plaintiff’s original petition were: Douglas Kain and wife, Grace Landrum Kain; George Kain and wife, Annie Shelby Kain; Margarite Kain Berglund; Inez Kain Swagerty; Thomas Kain, Jr. and wife, Macie Kain; Barney Earl Boudreaux and wife, Patsy Bou-dreaux; Roger Blanchard; Hugh Patrick Blanchard; Lawrence Drew Kain; Barbara Rehak; Thomas Patrick Kain; Bernice Kain Dodd; Mamie Kain Littlejohn; Virginia Kain Grisham; Marie Ainsworth Marks; and Doris Ainsworth Stephenson.

After suit and lis pendens notice had been filed, the defendant Margarite Kain Berglund conveyed her undivided interest in the land in question to Conrad Berglund, Jr., Elizabeth Berglund Mathis, Kenneth Leo Berglund, Billy Penrod Berglund, and George Thomas Berglund, who were substituted as parties defendant in her stead. Also, during the same period of time, Annie Shelby Kain (wife of George Kain) died, and Carol Pool, George E. Kain and Georgie Brueggan were made parties defendant upon suggestion of her death.

All persons who were named as defendants in plaintiffs’ original petition plus those persons who became substituted defendants by reason of the conveyance by Margarite Kain Berglund and of the death of Annie Shelby Kain were defendants in the trial court, and are appellees in the appeal now before this Court.

The judgment as to Roger Blanchard, Hugh Patrick Blanchard, Marie Ains-worth Marks and Doris Ainsworth Stephenson must be reversed and rendered for plaintiff. Summary judgment was rendered against them on August 29, 1973. They did not perfect an appeal from that judgment, and their attempt to appeal therefrom was dismissed by this Court. See Kain v. Neuhaus, supra. Consequently, the summary judgment heretofore rendered as to them became final, and the fact that they continue to assert an interest in the subject matter of this litigation up to and including the filing of appellees’ brief and the submission of this cause now before this Court in the instant appeal is of no consequence. Plaintiff’s point No. 46 is sustained.

The defense urged by defendants to the action brought against them by plaintiff was fraud. They alleged in substance: 1) on December 2, 1971, the contract which is sought to be enforced was brought to the home of Douglas Kain “by the plaintiff’s attorney and representative, Barnet B. Skelton,” who “represented to Douglas Kain and wife, Grace Landrum Kain, that the Kain family would be allowed to retain the right to negotiate the mineral interest under the land” covered by the contract, and that a provision to that effect “would be inserted into the Earnest Money Contract upon return to Houston by the said Barnet B. Skelton”; 2) such a provision was not thereafter inserted into the contract; 3) Douglas Kain and wife, Grace Landrum Kain, relied “upon the express representation of the said Barnet B. Skelton,” signed the contract, and except for such express representation would not have signed it; 4) “thereafter, the said Douglas Kain used his influence as head of the Kain family” to persuade George Kain and wife, Annie Shelby Kain, Thomas Kain, Jr., and wife, Macie Ainsworth Kain, Margante Kain Berglund, and Inez Kain Swagerty to sign the contract; 5) Barbara Rehak signed the contract “on the express representation of the said Barnet B. Skelton that the elder Kains needed the money, that not to sign the contract would deprive them of the use of the money in the later years of the lives of the elder Kains”; she relied on such statements, and “had it not been for said false and fraudulent representation she would not have signed the Earnest Money Contract”; 6) Skelton represented to Patsy Boudreaux and Barney Boudreaux that the purchasers “were running hot and cold on the deal, that if all owners did not sign, the deal would not be consummated, and it looked to him as though the elder Kains needed the money, that it was almost impossible to partition the land and very expensive, and that ‘he would hate to have this on his conscience’ ”; because of such representations, Patsy and Barney Bou-dreaux signed the contract, and except for such representations would not have signed it. Defendants further alleged generally that their signatures to the contract were fraudulently obtained “in that the statements and representations made by Barnet B. Skelton as an attorney and representative of the plaintiff were made to the defendants to induce them to sign the earnest money contract . . . and except for said expressed representations made by the plaintiff’s attorney and representative, Bar-net B. Skelton, the Kain family would not have signed the Earnest Money Contract, that they relied on said representations,” which “have not been consummated by the plaintiff.”

The jury found, in their answers to Special Issues 1 and 2, that plaintiff, at all material times, was ready, willing and able to perform his obligations under the contract, and that he “timely tendered performance” thereunder. Those jury findings are not questioned by defendants in this appeal.

Special Issues 3 to 12 read:

“SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that Barnet B. Skelton represented to Douglas Kain that the earnest money contract would be changed so as to retain to the Kains the right to negotiate the minerals?
Answer ‘We do’ or ‘We do not.’
ANSWER: We do
If you have answered Special Issue No. 3 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that Barnet B. Skelton made such representation to induce Douglas Kain to sign the earnest money contract when he (Skelton) had no present intention of performing in the future on such representation?
Answer ‘We do’ or “We do not’.
ANSWER: We do
If you have answered Special Issue No. 4 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 5
Do you find from a preponderance of the evidence that such representation by Barnet B. Skelton was a material inducement to Douglas Kain to sign the earnest money contract?
By the term ‘material inducement’ is meant a representation which is believed and relied on by the persons to whom it is made, and which moves or induces them to act in a manner that they would not have acted had such representation not been made.
Answer ‘We do’ or ‘We do not’.
ANSWER: We do
If you have answered Special Issue No. 5 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence that Douglas Kain relied on the representation of Barnet B. Skelton and would not have signed the earnest money contract but for such representation?
Answer ‘We do’ or ‘We do not’.
ANSWER: We do
SPECIAL ISSUE NO. 7
Do you find from a preponderance of the evidence that Barnet B. Skelton represented to George Kain that the earnest money contract would be changed so as to retain to the Kains the right to negotiate the minerals?
Answer ‘We do’ or ‘We do not.’
ANSWER: We do
If you have answered Special Issue No. 7 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 8
Do you find from a preponderance of the evidence that Barnet B. Skelton made such representation to induce George Kain to sign the earnest money contract when he (Skelton) had no present intention of performing in the future on such representation?
Answer ‘We do’ or ‘We do not’.
ANSWER: We do
If you have answered Special Issue No. 8 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 9
Do you find from a preponderance of the evidence that such representation by Barnet B. Skelton was a material inducement to George Kain to sign the earnest money contract?
By the term ‘material inducement’ is meant a representation which is believed and relied on by the persons to whom it is made, and which moves or induces them to act in a manner that they would not have acted had such representation not been made.
Answer ‘We do’ or ‘We do not’.
ANSWER: We do
If you have answered Special Issue No. 9 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 10
Do you find from a preponderance of the evidence that George Kain relied on the representation of Barnet B. Skelton and would not have signed the earnest money contract but for such representation?
Answer ‘We do’ or ‘We do not’.
ANSWER: We do
If you have answered Special Issue No. 6 ‘We do,’ and only in that event, then answer:
SPECIAL ISSUE NO. 11
Do you find from a preponderance of the evidence that Douglas Kain, in reliance on the representation of Barnet B. Skelton, used his influence after he had signed the earnest money contract to obtain the signatures of other members of the Kain family to the earnest money contract?
Answer ‘We do’ or ‘We do not’ as to each member of the Cain (sic) family:
(a) Grace Kain We do
(b) Margante Kain Berglund We do
(c) George Kain We do
(d) Annie Kain We do
(e) Thomas Kain, Jr. We do
(f) Macie A. Kain We do
(g) Inez Kain Swagerty We do
(h) Barbara Rehak We do
(i) Lawrence D. Kain We do
(j) Barney Boudreaux We do
(k) Patsy Boudreaux We do
If you have answered Special Issue No. 11 ‘We do,’ as to any member of the Kain family, and only in that event, then answer as to those members of the Kain family:
SPECIAL ISSUE NO. 12
Do you find from a preponderance of the evidence that other members of the Kain family relied on the influence of Douglas Kain and but for such influence would not have signed the earnest money contract?
Answer ‘We do’ or ‘We do not’ as to each member of the Kain family:
(a) Grace Kain We do
(b) Margante Kain Berglund We do
(c) George Kain We do
(d) Annie Kain We do
(e) Thomas Kain, Jr. We do
(f) Macie A. Kain We do
(g) Inez Kain Swagerty We do
(h) Barbara Rehak We do
(i) Lawrence D. Kain We do
(j) Barney Boudreaux We do
(k) Patsy Boudreaux We do

The contract contained the following provision:

“2-a.
It is further agreed that the covenants, agreements, and provisions of this contract shall be binding on the signatory parties hereto and their respective heirs, executors, administrators, executors (sic), successors and assigns, and shall not be merged in the deed provided for herein, but shall survive the same.”

The contract further provided that if all of the named sellers did not sign it, that the purchaser had the option of declaring it null and void, or he could “proceed to purchase the interests, respectively, of those who do sign this contract.” We hold that the contract constituted a separate contract by and between each of the sellers who signed it and plaintiff, the purchaser.

Plaintiff, in point 44, contends that the trial court erred in rendering judgment in defendants’ favor because there was no finding that Skelton acted within the scope of his authority to act for plaintiff, and there was no evidence that conclusively established such authority. The point cannot be sustained. Plaintiff, when asked if he considered Townley (an employee of Quin-tana Petroleum Corporation who had several contacts with various members of the Kain family) and Skelton “your agents or employees in connection with this transaction,” replied:

“I would consider them my agents to negotiate this contract.”

That statement was not explained or limited in any way. In that state of the record, we hold that it was conclusively shown by the evidence that Skelton had actual authority to act for plaintiff at all stages in negotiating the contract. There was no need to submit an issue relating to Skel-ton’s authority. Point 44 is overruled.

It is asserted in Points 2 and 3 that the trial court erred in permitting Douglas Kain and Grace Kain to testify over plaintiff’s objections, concerning the alleged representation made by Skelton to Douglas Kain on December 2, 1971, on the ground that such testimony contradicted the terms of a written instrument and, therefore, violated the Parol Evidence Rule. Plaintiff also makes the same contention in point 20, where he says that it was error to permit Georgie Brueggan to testify as to the alleged representations made by Skelton to George Kain. None of the points have any merit.

It is well settled that extrinsic evidence is admissible when there is a claim that a person was induced by fraud to enter into a written contract. The extrinsic evidence is admitted not to vary, add to, or contradict the terms of the written instrument, but to show that the writing, from its inception, never became legally effective because of fraud. Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233 (1957); King v. Wise, 282 S.W. 570 (Tex.Com.App.1926); Guisinger v. Hughes, 363 S.W.2d 861 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.); Stone v. Williams, 358 S.W.2d 151 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.); Roy Klossner Co. v. Mclntire, 301 S.W.2d 197 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.).

In the instant case, the defendants alleged that Skelton made an oral representation to them concerning the leasing rights of the minerals which induced them to sign the contract. The testimony was clearly admissible; it was not offered to vary, contradict or add to the terms of the written contract. Points 2, 3 and 20 are overruled.

Plaintiff, in point 1, contends that the judgment should be reversed because there are no pleadings to support the submission of Special Issue 4 to the jury. He argues that all of the essential elements of fraud with respect to the representation made to Douglas Kain were not alleged in that there is no allegation to the effect that Skelton did not intend to insert a provision in the contract which would give the Kain Family “the right to negotiate the minerals” at the time he allegedly made such a representation. We disagree. This is not a case where the fraud which is pleaded as a defense is based upon a promise to perform an act in the future. The fraud that defendants alleged is the false representation that they would be allowed to retain the leasing rights to the minerals; that they relied on the representations; and that but for such representations they would not have signed the contract. The promise to, at a later date, write the particular clause into the contract was no more than a promise to perform a mechanical act, which would have to be done if the real agreement was to be evidenced by a writing. Moreover, the issue also inquired into whether the representation induced Douglas Kain to sign the contract. Point 1 is overruled.

Plaintiff says in points 16, 17, 18 and 19 that the pleadings did not support the submission of Special Issues 7, 8, 9 and 10, which made certain inquiries concerning the representation to George Kain, and also says in points 36 and 37 that the pleadings did not support the submission of subpara-graphs (a), (h), (i), (j) and (k) of Special Issues 11 and 12, which inquired about Grace Kain, Barbara Rehak, Lawrence D. Kain, Barney Boudreaux and Patsy Bou-dreaux, respectively.

Defendants’ pleadings, though general, were not excepted to by plaintiff, and should, therefore, be liberally construed. Rule 45, T.R.C.P. Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594, 598 (Tex.Sup.1963); Hammonds v. Roper, 493 S.W.2d 569, 572 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.). The defendants’ trial pleading alleged that their signatures were obtained in fraud of said defendants “in that the statements and representation made by Barnet B. Skelton . were made to the defendants to induce them to sign the earnest money contract . . .” This general allegation amounted to no more than a legal conclusion. However, it is permissible to plead a legal conclusion (in the absence of an exception) provided the other party is not misled thereby. Paxton v. Spencer, 503 S.W.2d 637 (Tex.Civ.App.—Corpus Christi 1973, no writ); Texas Employers’ Insurance Association v. Price, 336 S.W.2d 304 (Tex.Civ.App.—Eastland 1960, no writ); Hankey v. Employer’s Casualty Co., 176 S.W.2d 357 (Tex.Civ.App.—Galveston 1943, no writ). Since plaintiff did not except to defendants’ answer, and in view of the fact that fraud was alleged generally as to all defendants, we hold that the pleadings were sufficient to support the submission of Special Issues 7, 8, 9 and 10. Points 16, 17, 18 and 19 are overruled.

Plaintiff also asserts (points 36 and 37) that there are no pleadings to support the submission of subparagraphs (a), (h), (i), (j) and (k) of Special Issues 11 and 12 to the jury. We agree. Defendants’ pleadings did not allege that Douglas Kain used his influence to obtain the signatures of Grace Kain, Barbara Rehak, Lawrence D. Kain, Barney Boudreaux or Patsy Boudreaux to the contract, or that they, or any of them, relied on his influence would not have signed the same. Points 36 and 37 are sustained.

Plaintiff, in points of error 4 through 15, contends that the trial court erred in submitting Special Issues 3, 4, 5 and 6 to the jury (inquiring about Douglas Kain) for the reasons: 1) there is no evidence to support the findings; 2) the evidence is factually insufficient to support the findings; and 3) the findings are against the overwhelming weight and preponderance of the evidence.

We follow the well established rule governing the disposition of “no evidence,” “factually insufficient evidence,” and “against the great weight and preponderance of the evidence” points. See 38 Tex.L. Rev. 361 (1960), Calvert, “No Evidence” and “Insufficient Evidence” Points of Error.

Douglas Kain testified that he had had previous discussions with Virgil Townley concerning the proposed sale and it had been agreed between him and Townley that the Kain family would retain the leasing rights to all of the minerals, including the minerals that were to be conveyed to plaintiff upon the execution of the deed to the land in question. He refused to sign the contract until, according to him, Skelton promised to put “my agreement and Virgil’s” in the contract, which he explained was a clause which gave the Kain family the right “to negotiate the minerals” on the land to be sold under the contract. He further testified that Skelton, prior to the time he (Douglas Kain) signed the contract told him that the Kain family would have the right “to do the leasing” of the minerals and that he (Skelton) would insert such a clause in the contract “when I get back to Houston”; that he believed Skelton, and would not have signed the contract had Skelton not made such representations to him.

Skelton admitted that there was a discussion concerning the leasing of the land for mineral development, but that plaintiff had instructed him not to put a provision into the contract which would have allowed the Kains to retain the leasing rights to the minerals which were to be conveyed to plaintiff. He denied making the representation to Douglas Kain (or to any other member of Kain family) which Douglas Kain said he made to him.

The jury resolved the conflict in the testimony of Douglas Kain and that of Skelton in favor of the former. It was within their sole province as trier of the facts to believe Douglas Kain and not to believe Skelton. United States Fidelity & Guarañty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d); Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.). There is evidence of probative value which supports each of the answers to Special Issues 3, 4, 5 and 6. The answers are not against the overwhelming weight and preponderance of the evidence. We have no authority to substitute our judgment for that of the jury with respect to those issues. Bardwell v. Anderson, 325 S.W.2d 929 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.); Dyer v. Sterett, 248 S.W.2d 234 (Tex.Civ. App.—San Antonio 1952, writ ref’d n. r. e.). Points 4 to 15 are overruled.

The jury’s answers to Special Issues, 7, 8, 9 and 10 are also challenged in points 22 to 33 on “no evidence,” “factually insufficient evidence” and “against the overwhelming weight and preponderance of the evidence” points. The issues concern George Kain. He did not testify at the trial.

On the same day that Douglas Kain signed the contract, he and Skelton went to the home of George Kain and wife, Annie Shelby Kain. Douglas Kain testified:

“Q Did you explain the lease, the Earnest Money Contract to George?
A Yes, sir, I did, and his wife, and I told her he had not put the leasing rights in there, and she said she wouldn’t sign it, and Mr. Skelton said, ‘It will be in there in a few days,’ said put it in there in a few days.
Q Did you ask George and his wife to sign the Earnest Money Contract?
A Yes, sir.”

He further testified that George Kain did not ask or say anything about the contract prior to the time he signed it. He (Douglas Kain) also stated that he did not discuss the contract with George on the day that George signed it.

Georgie Brueggan, an adult daughter of George Kain and wife, Annie Kain, was present during the discussion concerning the mineral leasing rights. She testified:

“A . Mr. Skelton told my mother and father, ‘You just sign right now and I will come back to you in a couple of days, it will be just like you want it.’ ”

She also testified that there was a discussion between her mother and Douglas Kain, and that her mother said that she wanted the Kain family to have the leasing rights of the minerals, but she did not say “what portion of the minerals” she had in mind. When asked “Did your father say anything about it?” she replied:

“No. My father did not say anything about it at all. All that was said is what my mother said.”

The only evidence that Skelton made any representation to George Kain is found in the testimony of Georgie Brueggan, and that is circumstantial. There is no testimony that George Kain asked about the leasing rights of the minerals which were to be conveyed to plaintiff; all such inquiries were made by his wife, Annie Kain. There is no evidence that George Kain relied on the representation or that he was induced to sign the contract because of the representation and would not have signed it but for such representation. There is no testimony that George Kain expressed dissatisfaction with the contract in its then existing form or satisfaction after having heard Skelton’s promise.

While there is some evidence that Skelton made the disputed representation to George Kain, there is simply no evidence that George Kain, in signing the contract, relied in whole or in part on a promise of Skelton to permit the Kain family to retain executory leasing rights in the minerals which were to be conveyed to plaintiff. Point 22, the “no evidence” point respect to the jury’s answer to Special Issue 7, which inquired if Skelton made the disputed representation to George Kain is overruled. Points 25, 28 and 31, the “no evidence” points as to Special Issues 8, 9 and 10, are sustained.

We next consider points 34 and 35, wherein it is asserted that the trial court erred in submitting Special Issues 11 and 12 to the jury, in that they do not constitute ultimate issues, and the affirmative answers do not afford any basis for the rendition of the judgment in favor of the defendants as to whom inquiry was made in the respective issues. Plaintiff duly and timely objected to the submission of those issues on the same grounds now urged in this appeal.

Clearly, only those special issues controlling the disposition of the case that are raised by the written pleadings and the evidence in the case, are to be submitted to the jury. Rules 277, 279, T.R.C.P. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940); Perales v. Braslau’s Furniture Company, 493 S.W.2d 638 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.). Issues which are submitted to the jury which are not ultimate or controlling issues are characterized as evi-dentiary issues and may be disregarded as being immaterial. Mills v. Withers, 483 S.W.2d 339 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ); H. E. Butt Grocery Co., v. Johnson, 226 S.W.2d 501 (Tex.Civ. App.—San Antonio 1949, writ ref’d n. r. e.).

Neither of the issues inquired about any representation or false promise made by Skelton to the members of the Kain family therein named. The issues did not inquire whether any of them were even aware of any alleged promise or representation made by Skelton to anyone concerning minerals or mineral rights, nor did they inquire as to whether the named members of the Kain family were induced to sign the contract because of the'disputed representation that was made by Skelton to Douglas Kain, nor did they inquire into whether the affected defendants signed the contract in reliance on a representation made by Skel-ton. The issues inquire only if Douglas Kain used his influence to obtain the signatures of the named members of the Kain family, and whether they relied on that influence in signing the contract.

The issues are evidentiary and are not ultimate or controlling issues. The affirmative answers by the jury cannot form any basis for the rendition of the judgment in favor of persons who are named in the issues. Points 34 and 35 are sustained.

The issue in this case is fraud. At the close of the evidence, plaintiff moved for an instructed verdict on several grounds. Included therein is an assertion that there is no evidence that the defendants were induced to sign the contract because of fraud. The motion was overruled, and that ruling is attacked by plaintiff in point 45.

Fraud is a misrepresentation as to a material fact which induces another to rely primarily on such misrepresentation to his detriment or injury. To maintain an affirmative defense of fraudulent representation, the defendant must plead and prove the following elements: 1) that a material misrepresentation was made; 2) that it was false; 3) that plaintiff knew it was false when he made it, or that he made it recklessly without any knowledge of its truth and as a positive assertion; 4) that he made it with the intention that the defendant act upon it; 5) that defendant acted in reliance upon it; and 6) that defendant thereby suffered injury. Custom Leasing, Inc. v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138,143 (Tex.Sup.1974); Oilwell Division, United States Steel Corporation v. Fryer, 493 S.W.2d 487, 491 (Tex.Sup.1973). Failure to plead or prove any one of the elements of fraud in a case where the defense to a suit for specific performance rests solely on fraud will be sufficient for the granting of a motion for an instructed verdict in favor of the plaintiff. Texas & P. Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591 (1938); Wilson v. Jones, 45 S.W.2d 572 (Tex.Com.App.1932, holding approved).

To avoid a contract for fraud, the fraudulent representation must have been relied upon to the extent that it was a controlling factor in inducing the making of the contract, and without which the contract would not have been made. First State Bank of Bellaire v. Olde Colony House, Inc., 414 S.W.2d 221, 223 (Tex.Civ. App.—Waco 1967, writ ref’d n.r.e.); 25 Tex. Jur.2d Fraud and Deceit § 20 p. 641 (1941).

Fraud is never presumed, and it is a rule of universal application that until fraud is proved, the presumption is in favor of the fairness of the transaction. Turner v. Lambeth, 2 Tex. 365 (1847); Hazle v. McDonald, 449 S.W.2d 343 (Tex.Civ.App.—Dallas 1969, no writ). A court should “presume a want of fraud rather than the existence of fraud in a transaction.” Hawkins v. Campbell, 226 S.W.2d 891 (Tex.Civ.App.—San Antonio 1950, writ ref d n.r.e.).

In the absence of undisputed evidence as to the several elements of fraud where fraud is pleaded defensively, it is incumbent upon a defendant to obtain a favorable jury answer to each element of fraud. Denton Publishing Company v. Boyd, 460 S.W.2d 881, 882 (Tex.Sup.1970); G. Hodges, Special Issue Submission in Texas § 76, at 195 (1959). The failure to request the submission of any element of an independent ground of defense, or the failure by the trial curt to submit such an element (without objection to the charge), results in the waiver of that ground by the party who relies upon it. Texas Employers Insurance Association v. Motley, 491 S.W.2d 395, 398 (Tex.Sup.1973); Ratcliffe v. Orms-by, 298 S.W. 930 (Tex.Civ.App. — Eastland 1927), writ ref d 117 Tex. 242,1 S.W.2d 1084 (1928).

As has been stated George Káin did not testify. Furthermore, neither Margarite Kain Berglund, Inez Kain Swagerty, nor Lawrence Drew Kain testified.

It is undisputed that George Kain and wife, Annie Kain, Thomas Kain, Jr. and wife, Made Kain, Margarite Kain Ber-glund, Inez Kain Swagerty, and Barbara Rehak signed the contract on December 2, 1971, and further that it had been signed by Douglas Kain prior to the time they signed it. Douglas Kain testified that after he and his wife had signed the contract, he and Skelton went to the residence of Margarite Kain Berglund, who signed it at his request. She was deceased at the time of trial. Douglas Kain testified that although she did “go over it,” she “didn’t understand nothing.” There is no evidence of any discussion of the contract, and there is no evidence that either Douglas Kain or Skel-ton made any statements or representations to her.

Douglas Kain and Skelton next went to the home of George and Annie Kain. We have already stated what happened when the contract was presented to them for signature. There is no need to restate that evidence.

Douglas Kain and Skelton then proceeded to the home of Thomas Kain, Jr. Douglas Kain said that he did not discuss the leasing of the minerals with either Thomas Kain, Jr., or his wife, Macie Kain. He did not ask them to sign the contract. He further testified that he made no representation at all to either Thomas Kain, Jr., or Macie Kain. Shortly thereafter, Inez Kain Swagerty came to the home of Thomas Kain, Jr. Douglas Kain testified that he did not ask her to sign the contract, and that there was no discussion with her about the minerals. Mrs. Swagerty, at some indeterminate time, left the room and telephoned her daughter (who did not testify at the trial). She signed the contract after she had finished her telephone conversation with her daughter.

Thomas Kain, Jr., testified that neither Skelton nor Douglas Kain explained to him what the “Earnest Money Contract meant”; that he asked no questions of Skelton about the contract; that Douglas Kain said something about the minerals, but he did not remember what was said; and that he did not read the contract before he signed it. When asked if he would have signed the contract if Douglas Kain had not already signed it, he said:

“I don’t imagine I would.”

There is no evidence that anyone discussed the contract with Macie Kain. There is no evidence that anyone told her or her husband of the alleged representation by Skelton to Douglas Kain with respect to the leasing of minerals. She said that she would not have signed the contract if Douglas Kain had not signed it first.

Skelton testified that he thoroughly explained the terms of the written contract to each of the several Kain family members who signed the contract on December 2, 1971. He further said that he did not discuss the mineral leasing rights with anyone other than Douglas Kain, but limited his discussion with the other Kains to the terms of the contract as they appeared in the written instrument which they signed.

In the evening of December 2,1971, Skel-ton went to the home of Chris and Barbara Rehak and obtained their signatures to the contract. Douglas Kain was not with him at that time. Chris Rehak testified that Skelton told them that all of the Kains had to sign or the deal would not go through; that time was of the essence; and that “the older Kains needed the money.” Barbara Rehak testified that she would not have signed the contract if Douglas Kain had not already signed it. Skelton denied making the statements to either Barbara or Chris Rehak.

Skelton testified that he telephoned Lawrence Drew Kain and informed him that most of the other Kains had signed a contract to sell the land in question. He arranged a meeting with Lawrence Drew Kain at the Gregg County Airport on December 4, 1971, and he said that on that day, after a thorough discussion of the terms of the contract, Lawrence Drew Kain signed it. He further testified that there was no discussion with Lawrence Drew Kain of the alleged Kain family’s right to lease any part of the minerals. Skelton’s testimony in this respect is undisputed.

Later, Skelton met with Barney and Patsy Boudreaux in their home. Douglas Kain was not present. Although Skelton explained the terms of the contract, neither would sign at the first meeting. Each recalled that Skelton stated to them that they needed to act quickly on this matter since the purchaser was “running hot and cold”; that everybody had to sign to close the deal; and that they should sign the contract because the older Kains could use the money. After the initial meeting, Barney Bou-dreaux testified that he was contacted by Thomas Kain, Jr., and asked to sign the contract for the old people. Patsy Bou-dreaux testified that several family members contacted her in regard to signing the contract. Thereafter, Patsy and Barney Boudreaux went to Skelton’s office and signed the contract. Douglas Kain was not present at that time. Patsy Boudreaux testified that she would not have signed the contract if Douglas Kain had not signed it and had it not been for Skelton’s numerous statements. She further testified that if any member of the Kain family had not wanted to sign the contract that she would not have signed it.

We recognize the rule that a fraudulent representation may be either direct or indirect, and that a person intending to defraud another may make the representation to that person, or he may make such representation to another with the intent that it should be repeated to the intended party for the purpose of deceiving him. Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138 (Tex.Sup. 1974); American Indemnity Co. v. Ernst & Ernst, 106 S.W.2d 763, 765 (Tex.Civ.App.— Waco 1937, writ ref’d). There is neither pleading nor proof in this case that Skelton made the representation to Douglas Kain, with the intent that Douglas Kain communicate the representation to the other members of the Kain family in order to obtain their signatures to the contract. Therefore, this case does not fall within the rule which will excuse performance of the contract because of an indirect fraudulent representation.

It is stated in 37 Am.Jur.2d, Fraud and Deceit, § 226:

“A representation, to be relied upon, must come to the knowledge of the complaining party, and it must appear that it was made directly or indirectly to him, since it cannot be supposed that he was influenced by a statement which was neither made nor communicated to him. In other words, it is wholly immaterial that false statements were made unless in some way they were brought home to the other party and were suffered to influence him in making the contract in question.”

We follow that rule in disposing of this appeal as to some of the defendants.

There is no evidence that Margante Kain Berglund, Thomas Kain, Jr., Macie Kain, Inez Kain Swagerty, Barbara Rehak, Lawrence Drew Kain, Barney Boudreaux or Patsy Boudreaux, knew of the representation that Skelton made to Douglas Kain. They could not have relied on such representation as an inducement to signing the contract.

There is some evidence that the representation by Skelton to Douglas Kain was communicated to Grace Kain, George Kain and wife, Annie Kain. However, there is no evidence that either of them relied on such representation or were induced to sign the contract because of such representation.

The motion for an instructed verdict with respect to the defendant Douglas Kain was properly overruled. The motion with respect to all other defendants should have been sustained. The remaining defendants did not meet their burden of proof. Point 45 as to Douglas Kain is overruled, and the point is sustained as to all other defendant-appellees.

We have carefully considered plaintiff’s point 47 wherein he states:

“The Court of Civil Appeals erred in refusing to file appellant’s original brief submitted in this cause, and in requiring rebriefing by appellant.”

The original brief contained 114 points of error. After rebriefing, 47 points are brought forward. The point has no merit. Point 47 is overruled.

We have disposed of 37 of the 47 points of error presented by this appeal. In view of our disposition of the appeal, it is not necessary that we consider defendants’ remaining points.

The judgment as to defendant-appellee Douglas Kain is affirmed. The judgment as to all other defendant-appellees is reversed, and judgment is here rendered that plaintiff-appellant have specific performance of the contract of sale as to each defendant-appellee except Douglas Kain, and that defendant-appellees, except Douglas Kain, forthwith execute the deed that has been heretofore presented to them by plaintiff-appellant, conditioned only upon the plaintiff paying to each their pro-rata part of the cash down payment and executing and delivering the several vendors’ lien notes and the deed of trust to additionally secure the payment of the deferred consideration, all as particularly set out in the contract of sale.

Cost of this appeal are adjudged and taxed: twelve and one-half percent (12½%) plaintiff-appellant; eighty-seven and one-half percent (87½%) to all defendant-appel-lees except Douglas Kain.

AFFIRMED IN PART AND REVERSED AND RENDERED IN PART.


author: WALTER, Justice.

text:
    Joyce Winnette KEMP et al., Appellants, v. Horace O. HUGHES et al., Appellees.
    No. 5057.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 1, 1977.
    Supplemental Opinion Sept. 11, 1977.
    Ross Hemphill, McCulloch, Ray, Trotti, Hemphill & Meadows, and Donald J. Hahn, Jr., Dallas, for appellants.
    Gene L. Dulaney, Lealand W. Greene, Snyder, for appellees.
   WALTER, Justice.

This is a receivership case. Horace 0. Hughes, fourteen other plaintiffs, and one corporation filed suit against Joyce Win-nette Kemp, a widow, and thirty-three other defendants seeking the appointment of a receiver to execute an oil and gas lease under Article 2320c of the Revised Civil Statutes of Texas. Some of the plaintiffs own the leasehold estate in the minerals under the Northwest One-Fourth of Section 87 in Block 3 of the H. & G. N. Ry. Co. Survey in Scurry County, Texas down to the depth of 2500 feet. All the other plaintiffs own the leasehold estate in such minerals below the depth of 2500 feet. The court appointed a receiver to execute oil and gas leases on behalf of and covering the interest of all children both living and unborn of the eight children of James A. Clark, Sr. and Ida Mae Clark, to-wit:

“1. An oil and gas lease covering the interest of such children in the oil, gas, and other minerals in and under the Northwest One-Fourth (NW/4) of Section 87 in Block 3 of the H&GN Ry. Co. Survey in Scurry County, Texas, down to a depth of 2,500 feet from the surface, to Horace 0. Hughes upon such terms which appear to such receiver to be the fairest and best that can be obtained.
2. An oil and gas lease covering the interest of such children in the oil, gas, and other minerals in and under the Northwest One-Fourth (NW/4) of Section 87 in Block 3 of the H&GN Ry. Co. Survey in Scurry County, Texas, below a depth of 2,500 feet from the surface, to Terra Resources, Inc. upon such terms which appear to such receiver to be the fairest and best that can be obtained.”

Cecil J. Boren was appointed receiver. He took the oath, filed a bond, executed the oil and gas leases as provided in the order, and make a proper report to the court. The court has confirmed the receiver’s action in leasing said property for all children both living and unborn of the eight children of Mr. and Mrs. Clark.

Eleven of the thirty-four defendants have appealed. The appellants observe the basic facts are undisputed. They set them out as follows:

“The basic facts are undisputed. James A. Clark, Sr., and his wife, Ida Mae Clark, both deceased, were the parents of eight children, all of whom are living. The eight children of James A. Clark, Sr., and Ida Mae Clark are the parents of nineteen children; and at the time of of trial eighteen of these grandchildren were adults, the eldest having reached the age of forty-six. The defendants in the trial court were the eight children and their spouses, the living grandchildren and the unborn and unknown grandchildren of James A. Clark, Sr., and Ida Mae Clark.
James A. Clark, Sr., predeceased Ida Mae Clark, and under his will his community one-half interest in the mineral interests in question was devised to his eight children for life with remainder to his childrens’ surviving spouses and children. The will of James A. Clark, Sr., was admitted in evidence. The defendants are the owners of a one-half interest in the property in question under the following provisions of that will.
Item 6
I give, bequeath and devise to each of my eight children, Joyce Winnette Kemp, Melba Aleñe Worley, Evelyn Faye Dorman, Blanton E. Clark, James A. Clark, Jr., William Donald Clark, Everett Clark and A. L. Clark, all of my community property interest save and except my oil, gas and minerals royalties and minerals interests as hereinafter provided for.
Item 7
I give, bequeath, grant and devise a life estate in all of my oil, gas and minerals royalties and minerals interests to my eight children, Joyce Win-nette Kemp, Melba Aleñe Worley, Evelyn Faye Dorman, Blanton E. Clark, James A. Clark, Jr., William Donald Clark, Everette Clark and A. L. Clark, share and share alike.
Item 8
In the event of the death of any one or more of the above named children, then I direct that their spouse surviving them at the time of their death shall receive a one-third of the monies paid on royalty owned by the deceased child at the time of its death so long as the said spouse shall live. When the said spouse shall die, the above described one-third royalty interest shall pass and be inherited the same as the two-third interest of the deceased child or children.
Item 9
I direct at the death of each of my above named eight children, the fee title to all of the oil, gas and minerals owned by me at the time of my death shall pass to and vest in his or her respective natural child or children, share and share alike, subject to the life estate in my said child’s or children’s surviving spouse if there by any.
After the death of James A. Clark, Sr., Ida Mae Clark conveyed an undivided eight-ninths (⅜) of her one-half interest in the land in question to her eight children. Ida Mae Clark and all eight children thereafter executed the oil and gas leases under which the appellees derived their interests as lessees. The appellees, therefore, are (1) the lessees of the life tenants with respect to the one-half interest of James A. Clark, Sr., and (2) the lessees of the owners of the full fee title to the other one-half interest.”

Section 1 of Article 2320c reads, in part, as follows:

“Section 1. Where lands or any estate therein are subject to contingent future interests, legal or equitable, whether arising by way of remainder, reversion, possibility of reverter, executory devise, upon the happening of a condition subsequent, or otherwise, and it is made to appear that such lands or estate are liable to drainage of oil, gas and other minerals, or either of them, or that lease thereof for oil, gas and mineral development and the safe and proper investment of the proceeds will inure to the benefit and advantage of the persons entitled thereto, or that it is otherwise necessary for the conservation, preservation or protection of the property or estate or of any present or contingent or future interest therein, that such lands or estate be leased for the production of oil, gas and other minerals, or either of them, upon application of any person having a vested, contingent, or possible interest in said lands or estate, any District Court of the county in which the lands or a part thereof lie shall have power, pending the happening of the contingency and the vesting of such future interest, to appoint a receiver . . . ”

The following portion of Section 1 of Article 2320c is applicable to this proceeding:

“ . . .or that lease thereof for oil, gas and mineral development and the safe and proper investment of the proceeds will inure to the benefit and advantage of the persons entitled thereto, or that it is otherwise necessary for the conservation, preservation or protection of the property or estate or of any present or contingent or future interest therein, that such lands or estate be leased for the production of oil, gas and other minerals, or either of them, . . . ”

The appellants say:

“ . . . The appellees, therefore, are (1) the lessees of the life tenants with respect to the one-half interest of James A. Clark, Sr., and (2) the lessees of the owners of the full fee title to the other one-half interest.”

Ida Mae Clark’s one-half community interest in said NW 1/4 of Section 87 is not involved in this proceeding. James A. Clark, Sr.’s one-half community interest in the property is involved because of the provisions in his will creating a life estate in the minerals in controversy in his eight children with remainder to the natural child or children of his eight children.

Appellants contend there was no evidence and insufficient evidence to support the court’s appointment of a receiver under Article 2320c.

We hold Mr. Clark’s will, the evidence of Horace 0. Hughes and Edwin Soles, and the admissible legal opinion evidence from Dan Cotton and Royce Adkins constitute some evidence of probative force and support the appointment of a receiver.

We have considered all the evidence and find it sufficient to support the judgment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We hold the appellants have not discharged their burden of showing the court abused its discretion by appointing a receiver.

The order contains the following:

“It is further ORDERED that such receiver, when he has made such leases, shall make due report thereof to this Court for confirmation. It is further ORDERED that said receiver shall receive the bonuses, delay rentals, royalties, and other benefits which may be payable to him under said leases and shall hold and invest the same under direction of this Court for the benefit of the persons entitled thereto, or who may become entitled thereto, according to their respective rights and interest.”

Appellants say:

“ . . .As long as each of the eight children is alive, he or she will be entitled to his or her share of the royalty . . ”

They cite no authority in support of this statement. The appellees say:

“Appellees are interested only in getting leases from the receiver, on behalf of all of the remaindermen, so that they will have complete 100% interest leasehold estates, and Appellees are not concerned with how the proceeds from said leases are treated or distributed. Therefore, Appellees have not argued these Points of Error, and have no objection to the trial court’s order being modified to limit the authority of the receiver to the execution and delivery of the proper leases so that the receiver will not receive, hold, or invest delay rentals or royalties.”

In Woodward, The Open Mine Doctrine in Oil and Gas Cases, 35 Texas L.Rev. 538 (1957), we find the following:

“As a general proposition it seems to be accepted that neither a life tenant nor a remainderman can alone execute a valid mineral lease without the joinder of the other . . . ”

43 A.L.R. 811 (1922) and 16 Texas L.Rev. 420 (1938) are cited in support of such conclusion. In Union Gas & Oil Co. v. Wiede-mann Oil Co., 211 Ky. 361, 277 S.W. 323 (1924), the court said:

“Disposing of contention (a), it properly may be said that there is no reason why Sarah Collier and her husband jointly could not make a valid oil and gas lease to her undivided one-half interest in the land. Ball v. Clark, etc., 150 Ky. 383,150 S.W. 359. As to the other half interest, while neither the life tenant nor the re-mainderman could singly make a valid lease, they could jointly make such lease

In Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297 (Tex.Com.App.1942, opinion adopted), the court said:

“The Court of Civil Appeals correctly approved that part of the trial court’s judgment which awarded to defendants in error the proceeds received and to be received from the one-eighth royalty reserved in the oil and gas lease executed by plaintiff in error and J. B. Bond, with provision that the proceeds from the royalty should be held by the receiver and invested under the orders of the court and the income from the investment delivered to plaintiff in error during her life. Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 986, 8 Ann.Cas. 1117.
Relying upon a statement in the opinion in the Swayne case that at common law conventional life estates, or those created by contract, were not impeachable for waste unless expressly made so by the conveyance, plaintiff in error takes the position that since (if there was an effective delivery of the deed) she is a conventional life tenant rather than a legal life tenant, as was the tenant in the Swayne case, she is entitled to the royalties during her lifetime. The old common law rule is correctly stated in the Swayne case, but, as pointed out in the opinion of the Court of Civil Appeals in this case, that rule was changed by statutes enacted several centuries before the common law was adopted as the rule of decision in this state, which statutes made conventional as well as legal life estates impeachable for waste, and the common law liability for waste as extended by the early statutes obtains in most of the states . . . ”

At the time the eight children’s life estate came into being, there was no production on the property and Mr. Clark had not executed an oil and gas lease which was in force at the time of his death. Therefore, the open mine doctrine in oil and gas cases would not be applicable.

In Clyde v. Hamilton, 414 S.W.2d 434 (Tex.1967), the court said:

“The general rule of property law is that a life tenant may not dispose of the corpus of the estate. It is to be preserved for the remaindermen. At common law, the life tenant was impeachable for waste, and he could not ordinarily open a new mine without the joinder of the re-maindermen. In this state, minerals are part of the land, and royalties and bonuses are part of the consideration for the sale of the land. The royalties and bonuses, therefore, are corpus which is to be preserved for the remaindermen. The life tenant, however, is entitled to the interest or income derived from the investment of the royalties and bonus .
An exception to the rule that the life tenant is entitled to nothing but interest on the royalties and bonus is found in the ‘open mine’ doctrine. At common law, if mines or pits were open at the time the life estate began, it was not waste for the life tenant to continue digging for his own use; and the proceeds were regarded as a profit from the land. When the settlor of a trust or a testator had opened the mine, and he gave no directions as to the impounding or expenditure of the proceeds from the mine, the law presumed an intent that the life tenant could expend or dispose of them as the settlor or testator could. So the proceeds did not become part of the corpus to be preserved for the remaindermen. Royalties and bonus, under these circumstances, belong to the life tenant . . . ”

In Moore v. Vines, 474 S.W.2d 437 (Tex.1971), the court said:

“The better view, in our opinion, is that the open mine doctrine is not applicable beyond the lease in existence at the time of the vesting of the life estate of Troy Vines, i. e., beyond the last leasing act of Ruby Vines. The rights of Troy Vines in such respect rested on this lease and expired upon its termination. The lease executed after the vesting of the life estate was not the equivalent of an open mine at such prior time. Troy Vines as life tenant was not authorized by the will of Ruby Vines to lease the land for mineral development nor was he given enjoyment of the proceeds from any such lease. Under these circumstances we are unable to attribute an intent to Ruby Vines that the land should continue to be leased for mineral development for the benefit of Troy Vines with a resulting diminishment in the value of the interest of the remain-dermen. Cf. Bergendahl v. Blanco Oil Co., 440 S.W.2d 81 (Tex.Civ.App.1969, writ ref. n.r.e.) and Johnson v. Messer, 437 S.W.2d 643 (Tex.Civ.App.1969, writ ref. n.r.e.).”

The bonus and royalty, if any, received by the receiver are a part of the corpus and he will preserve it for the re-maindermen. The life tenants will be entitled to the interest or income derived from the investment of the bonus and royalty.

However, the delay rental are payable to the life tenants as they are considered rent. They do not depend on the production of oil or gas and do not exhaust the substance of the land. Commissioner of Internal Revenue v. Wilson, 76 F.2d 766 (5 Cir. 1935).

We have considered all of appellants’ points and find no merit in them. They are overruled.

The order of the trial court is reformed by deleting the words, “delay rentals,” and as reformed is affirmed.

SUPPLEMENTAL OPINION

Appellants have filed a motion for rehearing seeking to have the judgment of the trial court reformed by a finding from this court that:

“Ida Mae Clark’s one-half community interest in said NW 1/4 of Section 87 is not involved in this proceeding.”

The motion is granted and we find Ida Mae Clark’s one-half community interest in said NW 1/4 of Section 87 is not involved in this proceeding. The trial court’s order is additionally reformed in this respect.


author: CADENA, Chief Justice.

text:
    AETNA LIFE INSURANCE CO., Appellant, v. Homer Baxter WELLS, Appellee.
    No. 15701.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 27, 1977.
    Rehearing Denied Nov. 2, 1977.

      George S. Finley, Smith, Davis, Rose, Finley & Hoffman, San Angelo, for appellant.
    Robert C. Trenchard, Jr., Trenchard, Davis & Hardwick, Odessa, for appellee.
   CADENA, Chief Justice.

Defendant, Aetna Life Insurance Company, appeals from a judgment awarding plaintiff, Homer Baxter Wells, recovery, under a group hospitalization and medical expenses insurance policy issued by defendant, for medical expenses incurred by plaintiff as a result of a heart attack. The judgment was in the amount of $5,578.92, consisting of $3,624.04, representing actual medical expenses incurred by plaintiff, $434.88, representing the penalty provided for by Article 3.62, Tex.Ins.Code Ann. (1963) and $1,520.00 as attorneys’ fees.

The policy covered only medical expenses incurred by the insured in connection with the treatment of “non-occupational” diseases and injuries. The definitions of “nonoccupational disease” and “non-occupational injury” contained in the policy may be summarized, insofar as pertinent to this case, as excluding from the coverage of the policy hospital and other medical expenses incurred as the result of an “accidental injury,” that is, injury which entitles the insured to compensation under our workmen’s compensation statute.

The judgment in favor of plaintiff is based on a jury finding that the heart attack suffered by plaintiff, which gave rise to the hospital and medical expenses which plaintiff seeks to recover, was not “an accidental injury incurred in the course and scope of [plaintiff’s] employment.”

Defendant asserts that, as a matter of law, the contentions and pleadings of plaintiff made in his prosecution of a claim under the workmen’s compensation statute constitute judicial admissions that the heart attack suffered by plaintiff was an “accidental injury,” and that, as a result of the position taken by plaintiff in connection with his successful claim for workmen’s compensation, he is now, as a matter of law, judicially estopped from asserting that the hospital and medical expenses in question were incurred as the result of a “non-occupational” injury or disease. Defendant does not here assert that the verdict of the jury is contrary to the overwhelming weight and preponderance of the evidence.

Plaintiff suffered a heart attack on April 22,1972, while performing duties related to his employment. As a result, he was hospitalized and underwent open-heart surgery. Defendant paid a part of such hospitalization and treatment. After plaintiff learned that defendant had not paid all of the expenses incurred by him, plaintiff filed his claim for workmen’s compensation by filling out a form mailed to him by the Industrial Accident Board in response to a report of the injury filed by plaintiff’s employer. Plaintiff filed his claim, without the benefit of assistance from an attorney, on September 12, 1972.

On April 9, 1973, plaintiff retained an attorney to assist him in presenting his claim for compensation, and on that same day he filed an amended notice of injury and claim for compensation prepared by the attorney.

The Industrial Accident Board awarded plaintiff compensation in the amount of $17,738.88 and ordered the compensation carrier, Highlands Insurance Company, to pay all of plaintiff’s hospital and medical bills. Highlands appealed the award to a district court and plaintiff filed a cross-action for compensation.

On January 15, 1974, plaintiff and Highlands entered into a settlement agreement which was approved by the district court in a final judgment entered on that date. Under the terms of the agreement and judgment, Highlands paid plaintiff $15,000.00 as compensation and $5,368.01 as payment of all medical expenses incurred by plaintiff prior to the date of the agreement and judgment. In addition, Highlands agreed, and the judgment ordered it, to pay all of plaintiff’s medical expenses for a period of one year from the date of the agreement and judgment.

On May 3, 1974, plaintiff filed this suit against defendant seeking recovery for hospital and medical expenses under the group hospitalization policy, plus the 12% statutory penalty and attorneys’ fees. The medical expenses which plaintiff seeks to recover in this suit are the same as those itemized by him in connection with his claim for workmen’s compensation.

In his original claim for compensation filed with the Industrial Accident Board on September 12, 1972, plaintiff described his injury as follows:

I was doing my regular work after riging [sic] up the 4-21-and dubling [sic] back that night, 12:30 a. m., when the attack hit.

The amended notice of injury and claim for compensation filed by plaintiff on April 9,1973, after describing the type of work in which he was engaged, continued:

I overexerted myself and it caused a physical strain causing me to sustain a heart attack and/or injury to my heart and the nerves, tissues, blood vessels, muscles and ligaments of my heart were also injured and damaged.

After the amended notice and claim were filed, an examiner for the Board conducted a hearing. According to plaintiff’s testimony in this case at that hearing he “testified” that he had suffered a heart attack because of the physical strain incident to performing the duties of his employment. He testified in the court below that these statements were made under oath and, in answer to a later question, said he was “sure” he was under oath when he made those statements to the examiner.

In one of the forms filed out by plaintiff he stated that his claim for compensation was based on an “accident” and that the “illness for which claim is being made” was “related to employment.” At the trial of this case he testified, when questioned about such statements, “Well, I was on the job when this attack occurred.” He added that, at the time he was claiming compensation, he “believed . . . that that attack was in some way connected to” his employment.

In his cross-action filed in district court in connection with the appeal by the compensation carrier from the award of the Industrial Accident Board, plaintiff alleged that he had sustained an “accidental injury” on April 22, 1972 in the course of his employment.

Prior to the time that plaintiff submitted his claim for workmen’s compensation, he filed a claim with defendant, under the hospitalization policy involved in this case, for payment of his hospital and medical expenses. In this instrument plaintiff asserted (1) the claim was not based on an accident; (2) the claim was related to his employment; and (3) the condition on which his claim was based was not due to sickness or injury arising out of his employment.

A judicial admission is generally defined as an express act of waiver by a statement in pleadings, by stipulation or by formal declaration in open court which asserts the truth of an allegation. So long as the statement, stipulation, or declaration stands unretracted, it is taken, for the purposes of the case, as true and no testimony by the admitter tending to show its falsity will ordinarily be received. 9 Wigmore, Evidence § 2588 (3d ed. 1940). In Texas the term has been defined as a “waiver of proof” in a judicial proceeding. United States Fidelity & Guaranty Go. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.—San Antonio 1951, writ ref’d). However, a judicial admission constitutes a waiver of proof of the admitted or asserted fact only in the proceeding in which it is made or, perhaps, in a subsequent proceeding involving the same parties. Mahoney v. Mahoney, 103 S.W.2d 459, 462 (Tex.Civ.App.—Amarillo 1937, writ ref’d). Defendant here, a stranger to the proceeding in which the alleged judicial admission was made, cannot rely on it as conclusive proof that the heart attack suffered by plaintiff was an accidental injury. Plaintiff’s pleadings and contentions in the compensation suit were, of course, admissible in this case for the purpose of aiding the jury in determining the question of fact involved in this case, and they were so admitted. But such statements are not conclusive of the fact which defendant asserts was admitted by such statements.

Under the doctrine of judicial es-toppel, as applied in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956), the estoppel arises from sworn statements made in a judicial proceeding by the person against whom the estoppel is sought to be invoked. The statement upon which the claim of estoppel is based may have been made in verified pleadings, an affidavit, or a deposi-tioner during the course of sworn testimony. The doctrine finds its most frequent application in situations where the statement giving rise to the estoppel was made in prior judicial proceedings. See Comment, 8 Baylor L.Rev. 41 (1956); Note 11 Sw.L.J. 96 (1957). The person seeking the protection of the doctrine need not have been a party to the prior proceeding in which the statement was made. Swilley v. McCain, 374 S.W.2d 871 (Tex.1964).

In every case in which the doctrine has been applied in favor of a person who was not a party to the proceedings in which the statement was made, the prior statement or assertion which forms the basis for the claimed estoppel was made under oath. “In Texas the doctrine of judicial estoppel has long been recognized with the modification that the statement or contention in a prior proceeding must have been made under oath.” Yarber v. Pennell, 443 S.W.2d 382, 384 (Tex.Civ.App.—Dallas 1969, writ ref’d n. r. e.); Aetna Casualty & Surety Co. v. Moore, 386 S.W.2d 639, 640-41 (Tex.Civ. App.—Beaumont 1964, writ ref’d n. r. e.).

The statements made by plaintiff in the printed claim forms which he filed with the Industrial Accident Board were not made under oath. Nor were the pleadings filed by plaintiff in the appeal from the award of the Board verified. Nothing contained in these documents can support defendant’s claim of judicial estoppel. Johnson Service Co. v. TransAmerica Ins. Co., 485 F.2d 164, 175 (5th Cir. 1973).

We consider next the statements made by plaintiff at a hearing conducted by an examiner of the Industrial Accident Board.

At the trial of this case plaintiff testified that he appeared at a hearing “before an Examiner” and made “claims to that Examiner in your testimony that” he “had sustained a heart attack because” he “had physical strain on the job and that caused” him “to sustain the heart attack.” He stated that these statements were made by him as part of his “sworn testimony" and that he was “sure” he was “sworn in under oath.”.

All of plaintiff’s testimony concerns a hearing before an “examiner.” The evidence, at best, is equivocal concerning the nature of the proceeding at which plaintiff made the statements in question.

We find no reference in the statutes to hearings before an “examiner.” Tex.Rev. Civ.Stat.Ann. art. 8307, § 10 (1976 Supp.), authorizes the holding of a “pre-hearing conference.” Paragraph (b) of § 10 of the statute authorizes the Industrial Accident Board “to direct the parties to appear before the Board, any member thereof or a pre-hearing officer for pre-hearing conferences to attempt to adjust and settle the claim amicably and to take such other action other than taking of testimony that may aid in the disposition of the claim.” Paragraph (a) of § 10 expressly provides that the pre-hearing officer shall not be empowered to “take testimony.” The record in this ease affirmatively shows that the Board, on May 22, 1973, ordered plaintiff and the compensation carrier to appear at a pre-hearing conference on June 13, 1973, and that such pre-hearing conference was held but no settlement was reached. The Board’s order setting the date for the pre-hearing conference recites that no testimony is to be taken at the pre-hearing conference.

The record before us does not conclusively establish that plaintiff appeared at the hearing held by the Industrial Accident Board on June 29, 1973, or that, if he did appear, he made any statements at such hearing, under oath or otherwise.

The use of the word “examiner” indicates that plaintiff’s testimony did not concern statements made by him at a formal Board hearing. It is clear that plaintiff was speaking of a hearing held before one person, rather than a group of persons. This points to a pre-hearing conference rather than to a formal Board hearing. The statutory prohibition against the taking of testimony at such pre-hearing conference and the express denial of the existence of power in pre-hearing officers to take testimony precludes the conclusion that the testimony conclusively establishes that the statements in question were made by plaintiff while he was giving testimony under oath.

Since the pre-hearing conference is limited by statute to an attempt, without the taking of testimony, to adjust and settle the claim amicably, it is clear that such conference is not a “judicial proceeding.” The doctrine of judicial estoppel is applicable only when “a party to a suit alleges or admits in his pleadings in a former judicial proceeding, under oath, the contrary of the assertion sought to be made in the case then being tried.” Turcotte v. Trevino, 499 S.W.2d 705, 717 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n. r. e.).

We do not find it necessary here to determine whether a-hearing before the Industrial Accident Board is a “judicial proceeding.” We do no more than hold that the pre-hearing conference is not a judicial proceeding.

Plaintiff did file pleadings in a district court after the compensation carrier had sued to set aside the award of the Board. However, none of such pleadings filed by plaintiff were verified and, therefore, the statements in such unsworn pleadings are insufficient to support defendant’s claim of judicial estoppel. Again, the record before us does not establish, as a matter of law, that plaintiff made inconsistent statements under oath, in a prior judicial proceeding.

Neither in his pleadings below nor in his brief in this Court does defendant invoke the doctrines of estoppel by judgment, collateral estoppel, or equitable estoppel. It might, nevertheless, be proper to point out that the judgment in the appeal from the award of the Board was based on, and expressly approved, a settlement agreement executed by plaintiff and the compensation carrier which contained the following language:

It is understood, agreed and realized by and between [plaintiff and the compensation carrier] that the overwhelming weight of solicited medical opinion, based upon reasonable medical probability, concludes that the alleged accidental injury made the subject of this lawsuit was not an accidental injury within the coverage of the Texas Workmen’s Compensation Act.

The district court judgment in the compensation suit recites that the litigation “presents a case involving questions as to the occurrence of an accident, the liability of the [compensation carrier] to pay benefits of any kind under the provisions of the Workmen’s Compensation Act, * * * and other questions, all of which are disputed issues, indefinite, uncertain, and incapable of being exactly established and determined.” Nowhere in the judgment is an effort made to resolve, or make findings concerning, such disputed issues.

Our conclusions are not contrary to the conclusion reached in Van Deusen v. Connecticut General Life Insurance Co., 514 S.W.2d 951 (Tex.Civ.App. — Fort Worth 1974, no writ). In that case the person against whom the estoppel was applied had made sworn statements, in a prior judicial proceeding, in the form of an affidavit and a deposition. The Van Deusen opinion merely holds that the application of the doctrine of judicial estoppel is not limited to cases where the prior contradictory statements were made in a sworn pleading. “We hold that it is not necessary that the sworn statement giving rise to the estoppel occur in sworn pleadings. It can occur in sworn pleadings, depositions, oral testimony, or in an affidavit, . . . .” The opinion contains no language suggesting that application of the doctrine of judicial estoppel can be based on previous unsworn statements.

Since defendant failed to establish the basis for application of the doctrines of judicial admissions and judicial estoppel, the case before us is merely one in which the evidence shows the making of prior inconsistent statements by plaintiff. Evidence of such prior inconsistent statements did no more than raise a fact issue which was resolved in favor of plaintiff. In the absence of a plea of estoppel by judgment, defendant has presented to this Court no basis for reversal of the judgment below.

The judgment of the trial court is affirmed.

      . Nowhere in its pleadings raising the defenses of judicial admissions and judicial estoppel did defendant allege that plaintiff had made any statements under oath.