author: COULSON, Justice. J. CURTISS BROWN, Chief Justice,

text:
    J. P. FUQUA, Appellant, v. P. V. FUQUA, Jr., et al., Appellees.
    No. 1708.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 23, 1977.
    Rehearing Denied Dec. 21, 1977.
    Bill M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, for appellant.
    Kenneth H. Keeling, W. T. Bennett, Bennett & Keeling, Huntsville, Eugene J. Pit-man, DeLange, Hudspeth, Pitman & Katz, Houston, Robert D. Brewton, Navasota, for appellees.
   COULSON, Justice.

This is an appeal from a judgment distributing the proceeds from the sale of realty. Since this appeal constitutes a collateral attack on an earlier decision of this court, we affirm.

This is another facet of a matter previously before this court. In an earlier decision we held that the deed from Birdie H. Fuqua to Selected Lands Corporation (SLC) was valid and that SLC was the owner of the property in issue. Fuqua v. Fuqua, 528 S.W.2d 896 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n. r. e.). The current appeal deals with the proceeds from the sale, a point severed from the earlier action. Since our previous decision details the background of this case, it is sufficient to note that the trial court held that the proceeds should be divided equally among the three sons.

Although he brings three points of error, the appellant, J. P. Fuqua, has but one true contention: Birdie Fuqua owned realty, not personalty, on the day she died. He brings this despite our earlier holding that she did not own the realty, and that SLC acquired title by relation back as of the date the deed was placed in escrow. We hold that this appeal is an impermissible collateral attack on our earlier decision.

Affirmed.

J. CURTISS BROWN, Chief Justice,

dissenting.

I respectfully dissent. I am convinced that the majority opinion leads to an unjust and improper result; it employs a legal fiction to defeat the legitimate expectations and understandings of the parties.

A full appreciation of my position on this matter requires a chronological review of the events involved:

1. On September 26, 1962 P. V. Fuqua, Sr. and his wife, Birdie H. Fuqua, executed a joint will giving the survivor a life estate in 200 acres of land in Grimes County, Texas, remainder in fee simple to their son, J. P. Fuqua (appellant).

2. Sometime before August 16, 1966 P. V. Fuqua, Sr. died. His will was never admitted to probate.

3. On August 16, 1966 Birdie H. Fuqua, P. V. Fuqua, Jr., and Floyd Fuqua conveyed 150 acres of land out of the 200 acre tract to J. P. Fuqua in fee simple absolute; P. V. Fuqua, Jr., Floyd Fuqua, and J. P. Fuqua conveyed the remaining 50 acres to Birdie Fuqua; P. V. Fuqua, Jr. and Floyd Fuqua (appellees), together with their wives, conveyed to appellant “all of [their] future interest” in that 50 acre tract, “if any they should acquire, by gift, devise or inheritance.”

4. On October 10, 1972 Birdie H. Fuqua entered into an earnest money contract with Selected Lands Corporation (SLC) for the sale of the 50 acre tract. Under the terms of this contract Mrs. Fuqua was to reserve a vendor’s lien and SLC was granted a right to cancel the contract if its attorney was not satisfied with the form and content of all instruments and documents connected with the transaction.

5. On November 14, 1972 Birdie Fuqua executed a warranty deed conveying the 50 acres of land to SLC and delivered that deed to the escrow agent.

6. On November 20, 1972 Birdie Fuqua died.

7. On December 1,1972 SLC executed a promissory note for the purchase of the property and delivered it to the escrow agent, and its attorney then approved the closing documents.

8. On January 17, 1973 the deed to SLC was filed of record.

9. On July 15, 1974 the will of Birdie Fuqua was admitted to probate.

10. On March 25,1975 the Twelfth Judicial District Court of Grimes County entered a judgment holding that SLC was the owner of the 50 acre tract.

11. On October 15, 1975 we affirmed that judgment.

The majority opinion has focused on our earlier holding that the title of SLC relates back to the time when Mrs. Fuqua delivered the deed to the escrow agent. That is undoubtedly correct, but I do not believe it is dispositive of the current matter. The doctrines of “relation back” and “equitable conversion” are legal fictions employed to effectuate the intentions of parties to a transaction and to prevent injustice. These fictions do not preclude the application of different standards to the severed cause of action relating to the disposition of the proceeds of the transaction.

Our earlier holding does not alter, in my view, the fact that Mrs. Fuqua still owned the 50 acre tract when she died. Her rights in the property were burdened by an enforceable contract of sale, but she held legal title nonetheless. As our earlier opinion indicates, SLC did not acquire title until it “complied with [the] conditions of the escrow and the deed was delivered to [it].” Fuqua v. Fuqua, 528 S.W.2d at 898. Those events undeniably occurred after her death.

Upon Mrs. Fuqua’s death, appellant acquired her title to the property either by her will or as a result of the deeds of expectancy from his brothers. Since he acquired the property, he is entitled to the proceeds from its sale. If “equitable conversion” or “relation back” were to be applied, the subsequently executed note and deed of trust would stand in place of the real property which passed at the instant of Mrs. Fuqua’s death.

Moreover, the claim of the other brothers to those proceeds depends upon a finding that their mother, in fact or by operation of law, had executed and delivered a deed that had been accepted before she died. That position cannot be correct because, irrespective of what happened after her death, the rights of the three brothers were fixed at the instant of their mother’s death. Welch v. Trustees of Robert A. Welch Foundation, 465 S.W.2d 195, 200 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref’d n. r. e.). Subsequent events, including the execution of the note and the delivery of the deed and its acceptance by SLC, cannot change those rights.

Finally, I differ with the majority opinion because I believe it works an injustice. As evidenced by the joint will and the family settlement executed after P. V. Fuqua, Sr.’s death, the intention and understanding of everyone involved was that J. P. Fuqua would eventually receive fee title to the entire 200 acre tract. To permit P. V. Fuqua, Jr. and Floyd Fuqua to receive two thirds of the proceeds is inherently contrary to the spirit and aim of the family settlement which followed the death of the father. Such settlements are highly favored by Texas courts. E. g., Kellner v. Blaschke, 334 S.W.2d 315, 320 (Tex.Civ.App.-Austin 1960, writ ref’d n. r. e.); Wedegartner v. Reichert, 218 S.W.2d 304 (Tex.Civ.App.-Waco 1948, writ ref’d n. r. e.).

I therefore respectfully dissent.


source: Caselaw Access Project

author: COULSON, Justice.

license: Public Domain

text:
    Homer Wayne BLALOCK, Sr., et ux., Appellants, v. Deborah Sue BLALOCK, Appellee.
    No. 1711.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 23, 1977.

      0. Joseph Damiani, Houston, J. Michael Cunningham, Midland, for appellants.
    William E. Steen, Anderson, for appellee.
   COULSON, Justice.

This is an appeal from that part of a divorce decree which ordered grandparents to make monthly payments for the support of their grandchildren. Since there is no legal basis for the imposition of such an obligation, we reverse and remand.

Homer Wayne Blalock and Deborah Sue Blalock were married in 1971; they had two children. In 1976 Mrs. Blalock filed a suit seeking divorce. During the pendency of that suit, Mr. Blalock’s parents, Homer Wayne Blalock, Sr. and Eva Nell Blalock (the grandparents), intervened to establish their right of access to the two children. As part of its decree of divorce the trial court appointed the grandparents and their son, Mr. Blalock, co-possessory conservators and ordered the grandparents to pay one hundred dollars each month for the support of the children and ordered the father to pay two hundred dollars a month. The grandparents appeal from that portion of the decree which orders them to pay child support.

There is no common law requirement that grandparents provide support for their grandchildren. Bee v. Robbins, 303 S.W.2d 827 (Tex.Civ.App.—Dallas 1957, no writ); see Pope v. State, 123 Tex.Cr.R. 576, 59 S.W.2d 390 (1933); Neff v. Ulmer, 404 S.W.2d 644 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.). Moreover, no such requirement has been imposed by statute. Section 14.05 of the Texas Family Code, under which a court may order child support, is limited to “either or both parents.”

The grandparents’ intervention in this case and their acquisition of access rights did not serve to create a general duty to support the children. Undoubtedly, pos-sessory conservators are required to provide for a child during the period of possession, but their duties are limited to that period. Tex.Family Code Ann. § 14.04 (1975).

We hold that appointment as a pos-sessory conservator of a child does not create a general obligation to support the child and the trial court erred in ordering child support on the basis of such an appointment. Since the record in this case does not mention the existence of a voluntary agreement, we do not reach the question of whether a general obligation could be imposed on that basis.

The part of the divorce decree requiring the grandparents to pay child support is reversed, and the case is remanded for a determination of the amount of child support the father should pay in light of this order.


author: BISSETT, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. David Vega NESMITH, Appellee.
    No. 1214.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 30, 1977.

      Michael J. Westergren, County Atty., Andrew J. Lehrman, Asst. County Atty., Corpus Christi, for appellant.
    Fisher Alsup, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a driver’s license suspension case. David Vega Nesmith (Nesmith) was involved in an automobile accident in the City of Corpus Christi, Texas, on October 9, 1975. He was notified on December 9,1975 by the Department of Public Safety (Department) that his driver’s license and his motor vehicle registration licenses would be suspended as of December 30, 1975, unless he took appropriate action to prevent such suspension. Pursuant to his request for an administrative hearing, a petition therefor was duly filed in the Municipal Court of Corpus Christi, Texas, and at a hearing thereon which was held on February 12, 1976, it was ordered that Nesmith’s driver’s license registration of motor vehicles owned by him be suspended “as provided in Article 6701h, V.A.T.C.S., Section 5,” and that a “security deposit of $1,064.00” be submitted to the Department within 20 days after the hearing. Nesmith appealed to the County Court at Law of Nueces County, Texas, where a trial de novo was held before the court. Judgment was rendered on January 5, 1977, which, in effect, decreed that the evidence as to the amount and extent of the damages to the other vehicle involved was insufficient to suspend Nesmith’s driver’s license and motor vehicle registration licenses. The Department has appealed.

The Department, in an appeal to the county court from an administrative order suspending a driver’s license, if the suspension is to be upheld, is required to prove by competent evidence: 1) the occurrence of an automobile accident in which the affected driver of an automobile is involved; 2) the geographical location of the accident; 3) the probability of judgment being rendered against such person if suit should be brought against him or her by either the owner or the occupants of the other vehicle involved in the accident; and, 4) damages for personal injuries and /or property loss, if any, sustained by any of the other persons. The questions to be answered in this appeal are whether the Department met its burden of proof with respect to the probability of judgment and property damage factors.

The only evidence consisted of Nesmith’s testimony; certain official records of the Department which were introduced by the Department under the provision of Tex. Rev.Civ.Stat.Ann. art. 3731a (Supp.1977); and the testimony of David Contreras, Jr., who stated that he was a “driver’s license trooper” and a “deputy custodian of records” of the Department. The accident occurred at a street intersection in Corpus Christi, and was investigated by a Corpus Christi City policeman. He did not testify at the trial in the county court. According to the policeman’s report, Nesmith was driving “Car No. 1” and Normaprocha Trevino was driving “Car No. 2” immediately prior to the collision. “Car No. 2” was owned by Raul Villalpando.

The Department’s records, upon which it relied in determining the probability of judgment, consisted of the investigating officer’s report and a statement by the “Manager of Safety-Responsibility, Texas Department of Public Safety,” the duly authorized custodian of the Department’s records. °The investigating officer’s report showed that Nesmith’s car struck the Trevino ear, and that the collision occurred at an intersection of two streets in Corpus Christi. The report did not indicate the monetary amount of damage to “Car No. 2”, but simply noted that it had a damage rating of “RP-3”. The pertinent parts of the statement read as follows:

“The accident occurred as set out in the attached copy of the investigating officer’s report and the probability of a judgment was determined from the following facts:
* * * * * *
Cause factor: Driver # 1 Southbound on South 19th. Driver # 2 Eastbound on Agnes. Driver # 1 disregarded flashing red light and collided with Driver # 2. Reports indicate no negligence on part of Driver # 2.
Property Damage Reports indicate $900.00 damage sustained to 1973 Chrysler owned by Raul Villalpando.
* * * * * *
The facts listed above were taken from the driver’s accident reports and relied upon and used in evidence by the Department under the specific authorization of Section 3, Article 6701h, V.A.T.C.S.”

State Trooper Contreras testified on behalf of the Department. He said that he knew from his own personal knowledge that the Department based the amount of damages upon collision estimates obtained from the party that the Department determined was not negligent in the collision and that those records were kept in Austin at all times. He further stated that he did not investigate the accident in question; that he did not have any personal knowledge about those automobiles; and that he had not seen either of the vehicles since the accident.

Nesmith testified that immediately preceding the collision, he was proceeding along 19th Street; that he did not see the red light at the intersection of 19th and Agnes streets; and that he hit the other automobile “right in the middle” without sounding a horn or applying his brakes. He further testified that he was given a- “ticket” and that he paid a fine for “disregarding a flashing red light”; however, he also stated that the accident was as much the fault of the driver of the other car as it was his because “they had a blinking yellow light, too,” and that both he and the driver of the other car “were negligent” at the time in question. He said that he had not been contacted by the parties involved in the accident nor had he been served with a citation notifying him that they had filed suit against him, nor had he received any other form of notice that those parties intended to obtain judgment against him as a result of the accident. He also testified that he did not have automobile insurance at the time of the accident; that he had not received a written release from the driver or passengers of the other automobile; that he had not agreed with any of those parties to pay for the damage to the car by an installment agreement, or otherwise; that he had not made a deposit of security to take care of the damage sustained by the other vehicle, nor had he demonstrated proof of financial responsibility for three years; and, that subsequent to the suspension of his driving privileges by the Department he had not filed proof of financial responsibility for the future. In answer to the question: “Do you know what the damage to the other vehicle was?”, he replied:

“No, sir.”

The Department asserts that departmental records introduced pursuant to Tex.Rev. Civ.Stat.Ann. art. 3731a (Supp.1977) established the extent of damages to the automobile being driven by Trevino as the amount of security required in this case. The pertinent part of Article 3731a provides:

“Section 1. Any written instrument, certificate, record, part of record, return, report, or part of report, made by an officer of this State or of any governmental subdivision thereof, or by his deputy, or person or employee under his supervision, in the performance of the functions of his office and employment, shall be, so far as relevant, admitted in the courts of this State as evidence of the matter stated therein, subject to the provisions in Section 3.”

The provisions of Section 3 of the statute have no bearing on this appeal. The Department further asserts that it was incumbent upon Nesmith to contradict or rebut the validity of the recital in the report on the probability of judgment that “Property damage reports indicate $900.00 to 1973 Chrysler owned by Raul Villalpando.” In support thereof, it cites cases wherein it has been held that abstracts of judgments of convictions are admissible and constitute evidence that a driver is a habitual violator of traffic laws in actions to suspend his driving privileges. See Texas Department of Public Safety v. Miller, 386 S.W.2d 760 (Tex.Sup.1964). The cases relied upon by the Department are distinguishable on the facts from the case at bar. There, the official records consisted of abstracts of judgments which “must be certified by the person so required to prepare the same to be true and correct.” Tex.Rev.Civ.Stat. Ann. art. 6701d § 152 (1977); Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114, 116 (1956). Here, there are no abstracts of judgments of convictions in the Department’s records.

Tex.Rev.Civ.Stat.Ann. art. 3731a (Supp.1977), which permits the introduction of official public records or certified copies thereof in evidence, is an exception to the hearsay rule. See 24 Tex.Jur.2d, Evidence, § 578. However, the contents of such records, when such records are offered in evidence, are subject to the same rules of evidence respecting relevancy, competency, or materiality as any other evidence. Smith v. Riviere, 248 S.W.2d 526 (Tex.Civ.App.—Texarkana 1951, no writ). Therefore, even though the official public records or certified copies thereof are admissible in evidence, that does not mean that ex parte statements, hearsay, conclusions and opinions contained therein are admissible. Furthermore, the admissibility of the records does not authorize the consideration of any hearsay based on hearsay, or of any conclusion therein which is not shown to have been made by an official or employee of the Department who had personal knowledge of the facts upon which the conclusion is based. Smith v. Riviere, supra; Texon Drilling Co. v. Elliff, 216 S.W.2d 824 (Tex.Civ.App.—San Antonio 1948, writ ref’d n.r. e.). Incompetent evidence, though admitted at the trial, shall not be considered as having any probative value on appeal. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912); Engineered Plastics, Inc. v. Woolbright, 533 S.W.2d 906 (Tex.Civ.App.—Tyler 1976, no writ).

The statement in the record, “Reports indicate no negligence on part of Driver # 2”, was made by the Department’s Manager of its Safety-Responsibility Division. The only “report” in the records is that of the Corpus Christi City policeman, who investigated the accident. The statement is based solely on the report of the investigating officer, who was neither an official nor employee of the Department. In that posture of the record, the statement is no more than an opinion or a conclusion by the Department’s employee. It has no probative value. See Page v. Scaramozi, 288 S.W.2d 909 (Tex.Civ.App.—San Antonio 1956, writ ref’d n.r.e.); Roberts v. Dallas Railway & Terminal Company, 276 S.W.2d 575, 578 (Tex.Civ.App.—El Paso 1953, writ ref’d n.r.e.).

It is conclusively shown by the record in this case that the Department, in making the determination that the Villalpano automobile was damaged in the collision, relied solely upon the contents in the “driver’s accident reports” as evidence of that fact. The official records of the Department in evidence do not contain any “driver’s accident reports”. Therefore, the evidence upon which the Department says it “relied upon” was not before the trial court. Moreover, there is no showing that the fact of damage to “Car No. 2” was determined by any official or employee of the Department based on personal inspection of the automobile.

The only deduction which can be drawn from the Department’s records is that Normaprocha Trevino, the driver of the Villalpano vehicle, told someone that the automobile which she was driving was damaged in the collision and that someone then told the proper official in the Department of the collision estimate. The fact of damage and the amount of damage ($900.00), if any, to the Villalpano automobile was established solely by the piling of hearsay upon hearsay, which is not permitted by Art. 3731a, or otherwise. Moreover, the portions of the Department’s records concerning damage cannot be considered as an exception to the hearsay rule as a business record since the driver of the Villalpa-no automobile was not a part of the Department organization with a duty to make such a statement. Tex.Rev.Civ.Stat.Ann. art. 3737e (Supp.1977). Also, there is no showing that the fact of damage was within the personal knowledge of the employee recording or transmitting the information. See Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298, 305 (Tex.1962).

The record before us shows that the Department did not sustain its burden of establishing by competent evidence that 1) there is a probability of judgment against Nesmith in a civil suit brought against him by the owner or occupants of the Villalpano automobile, and 2) the fact that the Villal-pano automobile was damaged in the collision to the extent of $900.00. We have considered all of the Department’s points of error, and they are all overruled.

The judgment of the trial court is AFFIRMED.


author: HALL, Justice.

text:
    WHITE STORES, INC., Appellant, v. Merley CARMOUCHE, Appellee.
    No. 5796.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1977.

      R. Doak Bishop, Fulbright & Jaworski, Houston, for appellant.
    Gerald J. Goodwin, Brock, Williams & Boyd, Houston, for appellee.
   HALL, Justice.

Merley Carmouche brought this suit in Harris County against White Stores, Inc., to recover damages for injuries to her person allegedly caused by defendant’s negligence when she was shopping in defendant’s store. The gist of plaintiff’s action was that when she sat on a patio chair on display in defendant’s store, the chair fell forward throwing her to the floor and she was injured.

Defendant filed a plea of privilege to have the cause transferred to Wichita County, the asserted county of its residence. Plaintiff controverted the plea under the provisions of subdivisions 9a and 23 of Article 1995, Vernon’s Tex.Civ.St. After a hearing by the court without a jury, the plea of privilege was overruled. Defendant appeals. We reverse and remand.

To defeat defendant’s plea of privilege under subdivision 9a of the venue statute, plaintiff was required to prove as necessary venue facts that her injuries were proximately caused by the defendant’s negligence in the county of suit. There is no evidence that plaintiff was injured in Harris County. The only proof relating to this question is plaintiff’s testimony that she was injured in defendant’s store, and that the store was located “on Lyons Avenue.”

Under the pértinent parts of subdivision 23 of the venue statute plaintiff was required to prove that defendant was a private corporation and that the suit was brought in the county in which defendant’s principal office is situated, or in the county in which the cause of action or part thereof arose, or in the county in which plaintiff resided at the time the cause of action or part thereof arose and that defendant had an agency or representative in such county, or in the county nearest that in which plaintiff resided at said time in which defendant had an agency or representative.

Plaintiff did not plead or prove that defendant is a private corporation. Additionally, there is no proof showing the county in which plaintiff resides. The only proof relating to the place of her residence is her testimony that she lives at “4709 Woolworth.” And, as we have said, there is no evidence showing the county in which plaintiff was injured or in which defendant’s store is located.

We need not rule on remaining complaints.

The order overruling the plea of privilege is reversed. The case is remanded to the trial court under the authority of Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458, 459 (1948).

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    Ottello BREDA et ux., Appellants, v. GUARDIAN TITLE COMPANY et al., Appellees.
    No. 5798.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1977.

      Jerry S. Payne, Payne, Benefield & Wid-mer, Houston, for appellants.
    George V. Berg, Jr., Buvens & Sellers, Jack W. Mills, Murr & Mills, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Breda and wife from a take-nothing judgment in a suit for return of earnest money deposited in escrow.

Plaintiffs Breda sued Guardian Title, alleging plaintiffs sought to purchase a house from Donald C. McNaught and wife; entered into an earnest money contract on August 16, 1975 with the McNaughts; deposited $5000. as earnest money with Guardian; that the contract provides plaintiffs entitled to their earnest money back if they were unable to get a 90% loan for 30 years; that pursuant to the contract plaintiffs applied for an 87% loan; which would be easier to obtain than a 90% loan; used diligence to obtain same, but could not get one; and after the contract expired asked for their earnest money but Guardian refused same. Plaintiffs sought return of the $5000. earnest money.

Guardian answered it received the $5000. earnest money pursuant to a contract for plaintiffs to buy a house from the McNaughts; that conflicting claims have arisen as to who is entitled to the $5000.; that Guardian has deposited the $5000. into the registry of the court, less $500. retained as its reasonable attorney’s fee.

The McNaughts were cited and answered that without good reason plaintiffs refused to go forward with the contract to buy the house; and prayed that they recover the $5000. earnest money, less reasonable attorney’s fees for Guardian.

Plaintiffs sought to file supplemental petition the day of trial alleging they attempted to obtain a 90% loan but could not do so. The trial court refused to permit the filing of such supplemental petition.

Trial was before the court which rendered judgment plaintiffs take nothing; that Guardian take $500. as its reasonable attorney’s fees; and that $4,500. be awarded the McNaughts.

Plaintiffs appeal on 4 points contending:

1) The trial court erred in rendering judgment denying return of their earnest money because there was no evidence and/or insufficient evidence to support such judgment.
2) The trial court erred in denying plaintiffs filing their supplemental petition.
3) Plaintiffs are entitled to a remand because they have not had benefit of findings of fact and conclusions of law.

On August 16, 1975 the Bredas contracted in writing with the McNaughts to purchase the McNaughts’ house for $103,-500.; the Bredas deposited $5000. earnest money in escrow with Guardian; the contract provided if purchaser were unable to obtain a 90% loan at 9½% within 45 days purchaser shall be entitled to refund of the earnest money deposit.

Plaintiff Breda testified he contacted Holland Mortgage Company to get a 90% loan; that he was told he could not get a 90% loan but probably could get an 87% loan; that he was never told by Holland that the 87% loan was turned down; but on his own initiative he stopped the processing of the loan because he didn’t want them to go further when he realized that because of his financial situation, had the loan been approved he would not have been able to finance the purchase. Mr. Breda further testified he called Holland Mortgage and told them to discontinue processing the loan application; and further that he entered a contract to buy another house on September 7,1975. The witness Brown of Holland Mortgage testified he never turned Breda down on the 87% loan; that he was notified the Bredas had purchased another house, and that he obtained a 90% loan on it for them.

The trial judge was authorized to believe that the Bredas simply backed out of their contract to buy the McNaught house.

The filing of an amendment within 7 days of trial is within the sound discretion of the trial court, and unless the trial court clearly abuses that discretion will not be overturned. We cannot say that the trial court clearly abused his discretion here. Victory v. State, 138 Tex. 285, 158 S.W.2d 760; Irwin v. Whirley Tex.Civ.App. (Waco) NWH, 538 S.W.2d 150.

The trial judge died after entry of judgment but before findings of fact and conclusions of law could be filed. The record does not disclose plaintiff ever requested any other judge presiding in the 164th District Court to file such findings and conclusions; and in view of the record as a whole the matter is harmless. See Rule 434 TRCP.

All plaintiffs’ points are overruled.

AFFIRMED.


author: DUNAGAN, Chief Justice.

text:
    Thomas A. WHALEY, Appellant, v. TRANSPORT INSURANCE COMPANY, Appellee.
    No. 1047.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 1, 1977.
    Rehearing Denied Dec. 29, 1977.

      Michael Thomas, Bean, Francis, Ford & Wills, Dallas, for appellant.
    John L. Lancaster, III, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellee.
   DUNAGAN, Chief Justice.

After consideration of appellant’s motion for rehearing, we withdraw our earlier opinion delivered on November 3, 1977, and substitute this opinion in lieu thereof.

This is a workmen’s compensation case in which the appellant, Thomas A. Whaley, sought a finding of total and permanent loss of use of his left leg against the appel-lee, Transport Insurance Company. The jury returned the following answers to special issues:

1. Total loss of use of the left leg from October 21, 1974, until December 3, 1974.
2. Permanent partial loss of use of the left leg beginning on December 4, 1974, the degree of which is 20%.

The trial court rendered judgment on the jury verdict. It is from this judgment that appellant appeals. The appellant complains in his points of error that each of the above jury findings are supported by no evidence and alternatively are against the great weight and preponderance of the evidence.

We look only to the favorable evidence in passing upon the “no evidence” points, and to the entire record in passing upon the “great weight and preponderance of the evidence” points. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The facts of the case are that on March 29, 1974, while the appellant was an employee of Central Freight Lines in Dallas, a cart broke loose pinning his left knee against a wall. The appellant returned to work two weeks after the injury but continued to complain of pain and swelling in his knee. Surgery was performed in October 1974 to remove torn cartilage from appellant’s left knee. He returned to work in early December of 1974, and continued to complain of pain and swelling until he left Central Freight in April of 1975 after a second cart had bumped his knee.

The appellant’s contention during trial was that he suffered a total and permanent loss of use of his left leg. The appellant’s evidence consisted of testimony by himself, his wife and a doctor. The defense produced no witnesses, merely cross-examining those witnesses put on by the appellant.

The credibility of the testimony of the appellant and his wife as interested witnesses is a matter for the jury. The jury is not required to take this testimony at face value. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 297-298 (1956); Scott v. Gardner, 137 Tex. 682, 156 S.W.2d 513, 516 (1941, opinion adopted). This court has the power to grant a new trial where the finding of the jury or the court is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, but we are not authorized to substitute our judgment for that of the jury or the court simply because we might have reached a different conclusion on the facts. Dyer v. Sterett, 248 S.W.2d 234 (Tex.Civ.App.-San Antonio 1952, n. w. h.); Continental Bus System, Inc. v. Biggers, 322 S.W.2d 1 (Tex.Civ.App.-Houston 1959, writ ref’d n. r. e.); Donnell v. Acker, 343 S.W.2d 718 (Tex.Civ.App.-Houston 1961, n. w. h.); Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); 4 McDonald Texas Civil Practice, sec. 18.15, p. 1459; Rule 328, T.R.C.P.

The appellant worked at several different jobs subsequent to his injury and prior to the time of trial. There is testimony in the record that his leg prevented him from being able to do these jobs and forced him to leave his employment. However, there is testimony in the record stating that the appellant left a job at the Mexia State School because of the unpleasant surroundings. In concluding his testimony regarding this particular job, the appellant stated that he had no trouble doing the job.

In Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex.1962), the Supreme Court of Texas wrote, at page 206, that in examining the evidence regarding the loss of use of a specific member we are governed by the following rule:

“A total loss of use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.”

In our opinion, the testimony presented in this case does not establish either of the two requirements stated above to such a degree that the jury verdict can be said to be so against the great weight and preponderance of the evidence as to be manifestly unjust and unfair.

The doctor testified that the appellant suffered a ten percent permanent partial disability as a result of the injury and subsequent surgery. At other points in his testimony, the doctor referred to this ten percent disability as a functional disability. We have found no Texas cases defining functional disability. However, the term functional disability has been defined in another jurisdiction as “. . . the loss

of a part of the total physiological capabilities of the human body.” Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146, 149-150 (1976); see also Unger v. Balkan Mining Co., 248 Minn. 510, 80 N.W.2d 846, 848 (1957). In Texas, it has been held that loss of use of a specific member of the body is not limited to the loss of the physical function of the member. Travelers Ins. Co. v. Calcote, 205 S.W.2d 56, 59 (Tex.Civ.App.-Fort Worth 1947, writ ref’d n. r. e.). However, merely because functional disability is not a proper test to determine loss of use of a specific member under our Workmen’s Compensation Act, we do not feel the testimony of the appellant’s doctor concerning functional disability is without probative force. The jury is entitled to consider this testimony and all other testimony presented in the case in light of the court’s charge and thereby render a verdict. We believe that the jury could reasonably construe the testimony about the ten percent permanent partial disability and the ten percent functional disability and arrive at the findings we are presented with in this case.

At one point in his testimony, the doctor testified to the following statements that do not support a recovery for total loss of use:

“Q. Doctor, do you have an opinion as to whether or not he — Mr. Whaley could get and keep a job which required the use of his left knee, doing the usual tasks of a workman which involved jumping, climbing and lifting?
“A. No. I don’t.
“Q. Do you have an opinion as to whether or not his left leg and knee would suffer any substantial utility in the practical performance of his duties— the duties of a workman, which we have just mentioned, running, jumping, climbing and standing?
“A. He would be restricted.”

The testimony of the doctor also showed that the plaintiff could do any job involving his knee if he were willing to pay the price for doing it. It is unclear whether .that price would be pain or future surgery, although it does appear in the record that the doctor could not say future surgery was a medical probability. It also appears in the record that appellant’s doctor testified that if corrective measures were needed in the future to lessen the effects of traumatic arthritis in the left knee, such measures would “patch it up.”

We have studied the entire record and have concluded that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); In re King’s Estate, supra; Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960). Accordingly, appellant’s second and fourth points of error are overruled.

Appellant’s first and third points of error asserting that there is no evidence to support the jury’s findings are likewise overruled.

Appellant’s motion for rehearing is overruled and the judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    TEXAS ELECTRIC SERVICE COMPANY, Appellant, v. Gerald T. RAGLE et al., Appellees.
    No. 17902.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 1, 1977.
    Rehearing Denied Dec. 29, 1977.

      Joseph A. Chandler, Stephenville, Cantey, Hanger, Gooch, Munn & Collins and Jack C. Wessler and S. G. Johndroe, III, Fort Worth, for appellant.
    Crumley, Murphy & Shrull, William M. Murphy, Fort Worth, for appellees.
   OPINION

SPURLOCK, Justice.

This is the third in a series of condemnation cases that Texas Electric Service Company (Tesco) has appealed to this court, Texas Elec. Service Co. v. Nelon, 546 S.W.2d 864 (Tex.Civ.App.—Fort Worth 1977, writ ref'd n. r. e.; Texas Elec. Service Co. v. Wheeler, 550 S.W.2d 297 (Tex.Civ.App.—Fort Worth 1977) aff’d, 551 S.W.2d 341 (Tex.1977). Like the previous cases, it is the result of Tesco’s construction of the first nuclear-powered generating plant in Texas. On June 5, 1975, appellant Tesco acquired an easement across appellee’s land in Hood County for a railroad to be used in conjunction with the nuclear-powered generating plant. The jury found that the 203,242 acres of land remaining after the taking of the easement by appellant were diminished in market value $150.00 per acre. Also, the jury found that the 3.018 acres actually taken by appellant had a market value of $800.00 per . acre; Tesco does not complain of this jury finding. Tes-co has appealed from the judgment below in favor of the landowners to the extent of the diminution in market value of the 203.-242 acres.

We affirm.

By its first point of error, Tesco contends that the trial court erred in denying its motion to strike Dr. Peter Girardot’s testimony “for the reason that such testimony was incompetent, prejudicial, and constituted no evidence which could have aided the jury in the performance of its factfinding function.”

Dr. Girardot, a chemistry professor at the University of Texas at Arlington, is an authority in waste disposal, including the disposal of nuclear waste. He was called to testify at the trial, since the railroad to be constructed by Tesco cross appellee’s land is to be used to transport spent (used) nuclear fuel away from the generating plant; however, the use of the railroad is not limited to the transportation of spent nuclear fuel. Dr. Girardot testified that there was a hazard and “real danger” to the occupants in the territory immediately adjacent to the railroad. According to his testimony, there are two kinds of hazards involved in the transportation of nuclear wastes, one being human failure and the other being equipment failure.' Additionally, he testified that there is an actual danger of the release of nuclear contaminants through the actions of terrorists, and he said that “it’s easy to see that there is a possibility there that something could go wrong.”

On recross examination, the question was asked to Dr. Girardot, “So all of your testimony is based on these possibilities that you have just testified to, is that correct?” His answer was: “That’s correct. They are very real.”

The thrust of Tesco’s first assigned point of error is that Dr. Girardot’s testimony was incompetent, since his testimony was only based upon the possibility of a nuclear accident rather than in terms of the probability of a nuclear accident.

In support of his “probabilities-possibilities” argument, Tesco cites the case of Heddin v. Delhi Gas Pipeline Company, 522 S.W.2d 886 (Tex.1975). The rule in the Heddin, supra, case is as follows:

“To establish that there is a basis in reason or experience for the fear, it is incumbent upon the landowners to show either an actual danger (emphasis theirs) forming the basis of such fear or that the fear is reasonable, whether or not based upon actual experience.” Id. at 888. (Emphasis ours.)

In the case of Texas Elec. Service Co. v. Nelon, 546 S.W.2d 864 (Tex.Civ.App.—Fort Worth, writ ref’d n. r. e.), this court has interpreted the Heddin case, supra, as follows:

“But the rule in Heddin does not require that an accident of the type feared already have occurred; it is sufficient if there is a basis in reason for the fear.” Id. at 869.

We note that Dr. Girardot testified that the danger is based on fact, rather than fancy, delusion or imagination. Appellant’s first point of error is overruled. Dr. Girar-dot’s testimony was not rendered incompetent just because he could not testify about the probability of a nuclear accident rather than the mere possibility of such an accident.

By its second point of error, Tesco contends that the “trial court erred in overruling appellant’s objections and exceptions to the charge and special issues in regard to the submission and form of special issues nos. 3 and 4.” This point of error is defective in that it does not indicate where the trial court allegedly fell into error, nor does it specify what objections and exceptions the appellant had to the submission of the charge and special issues. Likewise, the brief does not indicate what appellant’s objection was to the submission of the charge and special issues; however, we have examined the transcript to determine appellant’s objections to the submission of the charge and special issues nos. 3 and 4. Having done so, we overrule appellant’s second point of error.

Tesco’s third point of error is that there was “no evidence” to support the jury’s answer to special issue no. 4 with regard to the reasonable market value of the remainder after the taking of the railroad right-of-way.

Tesco’s fourth point is that the evidence is insufficient to support the jury’s answer to special issue no. 4.

In considering a “no evidence” point, we must view the evidence in the light most favorable to the jury’s findings and disregard all evidence to the contrary. We are bound by the jury’s finding, if there is any evidence of probative force to support the jury’s finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In considering whether there is “insufficient evidence” to support the jury’s finding, we must review all of the evidence; however, we should remand for a new trial only if the verdict is so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust. In re King’s Estate, supra.

The following is a summary of the value testimony that will support the jury’s finding:

(1) Gerald T. Ragle, the landowner, testified that his property before the taking had a value of $900.00 per acre and an after-taking value of $400.00, with an additional diminution in value of $100.00 or $150.00 per acre because nuclear waste will be hauled across the property. (This is a $600.00-$650.00 per acre diminution in value.)
(2) Vernon Thomas, a professional real estate appraiser, testified that the remaining property was worth $850.00 per acre before the taking, with an after-taking value of $550.00 per acre with an ordinary railroad, but when he considered that nuclear waste would be hauled on the railroad, he put the after-taking value at $350.00 per acre. (This is a $500.00 per acre diminution in value.)
(3) Joe Evans, a real estate broker, testified that the value before taking was $900.00 per acre and the after-taking value was $600.00 per acre. (This is a $300.00 per acre diminution in value.)

The jury found that the remaining property had been diminished in value $150.00 per acre because of the taking of the railroad right-of-way, whereas the testimony on value would have supported a jury finding of a much greater diminution in value. We overrule Tesco’s third point of error, which is the “no evidence” point.

We will not attempt to mention all aspects of the testimony on Tesco’s “insufficient evidence” point, but the following is a fair summary of the testimony.

Tesco presented two expert witnesses on the market value of the remaining land before and after the taking of the railroad right-of-way. These experts testified that the railroad right-of-way running through the tract of land would have no effect on the value of the remaining property. The before and after value of this land was set at $750.00 per acre by these experts.

There is much evidence pertaining to non-nuclear factors which adversely affect the market value of this land. The landowner had the right to introduce evidence of anything which would tend to affect the value of the remainder in the eyes of a potential purchaser or which would tend to make it less valuable. Texas Electric Service Company v. Etheredge, 324 S.W.2d 322 (Tex.Civ.App.—Eastland 1959, no writ).

The landowner testified that due to inadequate culverts under the railroad, the embankment functions as a dam after a heavy rain which causes a diversion of the natural flow of the waters. The resulting flooding of the fields makes portions of the land virtually useless for cultivation. This could be properly considered by the jury. City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943).

Witnesses at the trial agreed that the highest and best use of this land would be for small tract development. There is also testimony which indicates that the flooding caused by the embankment has a detrimental effect upon the feasibility of small tract development in the areas immediately adjacent to the railroad. Further, the landowner testified that the railroad track crossed the land in such a way so as to break up the terraces upon the land. This resulted in land cultivation becoming more difficult. This enhanced burden in cultivation is another element that the jury could consider, Texas Electric Service Company v. Etheredge, supra, at 324.

It was also brought out at the trial that the railroad detracted from the appearance of the land. Also, the trains were noisy. Both of these facts would reduce the attractiveness of the land to a potential buyer. The jury could consider this testimony in that it showed a depreciation in the value of the remainder. City of Amarillo v. Attebury, 303 S.W.2d 804 (Tex.Civ.App.—Amarillo 1957, no writ). Also, there is inconvenience caused by the construction of inadequate crossing points. This inconvenience in communicating between the two portions of the land could be considered by the jury on the question of damage done to the remainder. Clements v. Fort Worth & D. S. P. Ry. Co., 7 S.W.2d 895 (Tex.Civ.App.—Austin 1928, no writ).

Teseo’s point of error no. 4, its “insufficient evidence” point, is overruled.

Having overruled all of Tesco’s assignments of error, the judgment of the trial court is affirmed.


author: RAY, Justice.

text:
    ESTATE of Thomas Jefferson MAXEY, Deceased. Claude GRAY, Sr., Appellant, v. Clifton L. SPARKS and Roley Sparks, Jr., Appellees.
    No. 8505.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 6, 1977.
    Rehearing Denied Dec. 27, 1977.

      Paul W. Anderson, Anderson & Anderson, Marshall, for appellant.
    Clayton E. Evans, Fort Worth, for appel-lees.
   RAY, Justice.

This is a probate proceeding to declare heirship. Clifton L. Sparks and Roley E. Sparks, Jr., appellees (petitioners), filed an application to determine heirship in the County Court of Harrison County. Appellant (contestant), Claude Gray, Sr., filed his response and opposition, stating that a suit was pending in the 71st Judicial District Court of Harrison County, Texas, involving the same parties and the same subject matter. Claude Gray, Sr., was made a party to the proceeding because the deed records of Harrison County showed that he had an interest in the real property described in the application for determination of heir-ship.

The trespass to try title lawsuit was filed in the District Court of Harrison County on May 24,1976. The application to declare heirship was filed in the County Court of Harrison County on August 5, 1976. The Sparkses, appellees, filed both actions. Since there was no proceeding pending in the County Court when suit was filed in the District Court, the District Court had authority to proceed to determine the heirship and the title to the land since the District Court had already obtained jurisdiction of all the parties and the subject matter.

“While the statute is clear in its outline of the circumstances under which an action to determine heirship is available, its language is subject to qualification by other rules established by court decisions. If the district court has assumed jurisdiction over the property of the estate and all of the parties in a suit involving a determination of heirship, as it may do when no administration is pending, it cannot be ousted of its jurisdiction by a subsequent proceeding to determine heir-ship brought in the probate court.” 17 M. Woodward and E. Smith, Texas Probate and Decedent’s Estates, Sec. 202, p. 168 (1971).

The matter of determining heirship is one over which the County Court has primary jurisdiction, but if there is no probate proceeding pending in the County Court, the District Court may, in a non-probate case such as a trespass to try title suit, assume jurisdiction under its general powers over all suits for trial of title to land, and proceed to determine the heirs of a decedent and do all things necessary and proper to ascertain the lawful owners of the property. Wells v. Gray, 241 S.W.2d 183, 185 (Tex.Civ.App.San Antonio 1951, writ ref’d); Trevino v. Lerma, 486 S.W.2d 199 (Tex.Civ.App. Beaumont 1972, no writ).

When Gray responded and filed his special exceptions in the County Court, he questioned the propriety of the proceeding to declare heirship in the County Court when there was a trespass to try title case pending in the District Court involving the same parties and the same subject matter. The pendency of one suit precludes the maintenance of another suit involving the same cause of action between the same parties in a court of concurrent jurisdiction, and the pendency of the prior suit is ground for abating the subsequent one. 1 Tex. Jur.2d, Abatement and Revival, Secs. 20 and 21. However, the failure to file and urge a dilatory plea in abatement at the proper stage will ordinarily deprive a party of the right to be heard in respect of the matter, and the plea will be ruled to have been waived, unless the matters of abatement relate to the jurisdiction of the court over the subject matter. 1 Tex.Jur.2d, Abatement and Revival, Sec. 81, p. 93. Since both the County Court and the District Court had jurisdiction to determine heirship, the County Court could proceed to declare the heirship of Thomas Jefferson Maxey though it should have abated the heirship proceeding until the District Court finished the trespass to try title case and made its rulings. If the District Court failed to dispose of all heirship issues, then the County Court could proceed to determine the remaining issues. In the present case the declaration of heirship by the County Court will be binding upon the District Court because the County Court, a court of concurrent jurisdiction, proceeded to judgment first and its findings are res adjudicata between the parties in this case. No point of error appears in appellant’s brief complaining of the County Court’s action in not abating the suit and in proceeding to declare the heirship of Thomas Jefferson Maxey though a prior pending case involving the same parties and the same subject was pending in the District Court.

Following a hearing on the application the County Court entered its judgment declaring that the only heirs of the decedent, Thomas Jefferson Maxey, were appellees, Clifton L. Sparks and Roley Sparks, Jr., and that each was entitled to an equal interest in decedent’s estate. The trial court entered its findings of fact and conclusions of law and expressly refused to find that Thomas Jefferson Maxey died owning or entitled to any real real or personal property. Appellant has perfected his appeal and submits two points of error for our consideration.

Appellant Gray’s two points of error are as follows:

1. “The County Court erred in entering its judgment declaring heirship when it expressly refused to find that the Decedent died owning or entitled to any real or personal property since such a determination is essential to the Court’s proper exercise of probate jurisdiction.”
2. “There is no evidence in the record to support any finding that the Decedent died possessed of or entitled to any real or personal property and accordingly, the Court was without jurisdiction to determine the heirship of Appellees.”

The sole issue presented for our consideration is whether it was necessary for appel-lees to prove and get a trial court finding that decedent Maxey owned property at the time of his death in order to invoke the jurisdiction of the County Court to determine and declare the heirship of Thomas Jefferson Maxey, Deceased.

The allegations of the petition made in good faith are determinative of whether the cause is within the jurisdiction of the court in which it is brought. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949). Jurisdiction, as the duty and power of the court to act, however, does not depend on the petition that states the cause of action. The duty and power to act is that conferred upon the court by the Texas Constitution and the statutory enactments thereunder, in this case, the Texas Probate Code, Sec. 48 (Supp.1976-1977), et seq. Jurisdiction of proceedings to declare heirship is conferred upon county and probate courts. Texas Probate Code Ann.Sec. 48 (Supp.1976-1977). The decision to exercise that power is a judicial function and usually involves some degree of discretion.

In the instant case, it is undisputed that the appellees’ pleadings met the requirements of Sec. 49, Texas Probate Code (Supp.1976-1977), showing such facts as would indicate that the cause of action was one over which the county court had jurisdiction, that is, an action to declare heir-ship.

The real issue, then, is whether it was necessary for appellees to prove that the decedent, Thomas Jefferson Maxey, owned or claimed an interest in property at the time of his death before the county court could declare the heirship of the decedent.

Sec. 48(a), supra, provides that when a person dies intestate owning or entitled to real or personal property in Texas, the county court may, under certain conditions, determine and declare who are the heirs and only heirs of such decedent, and their respective shares and interests, under the laws of Texas, in the estate of the decedent.

Sec. 49, supra, provides that any person or persons claiming to be the owner of the whole or a part of the estate of such decedent may institute proceedings to declare heirship. The undisputed evidence in this case shows that appellees have instituted suit in the District Court of Harrison County, Texas, in the nature of a trespass to try title suit, seeking to establish their title to the very same lands described in their petition to declare heirship. The county court does not have jurisdiction outside of Sec. 5(d), Texas Probate Code (Supp.1976-1977), to settle disputes over real property since the jurisdiction of such matters has been vested in the district courts of this state. Texas Const, art. V, Sec. 8. We think it is enough that appellees alleged in their petition and application to declare heirship that they were claiming to be the owners of the estate of the decedent and that the decedent owned the property described in appel-lees’ petition. To require appellees to prove their title in the county court would be a useless thing and the law does not require such when the determination of disputed land titles is left to the district courts of this state exclusively, when not embraced by that portion of Article V, Sec. 8, supra, related to probate matters.

We therefore hold, that good faith allegations and proof that a claim is being made to the land by the applicant and petitioner is sufficient reason to cause the county court to exercise its jurisdiction and to declare the heirship of the decedent in the instant case.

The judgment of the trial court is affirmed.


author: CORNELIUS, Chief Justice.

text:
    C. E. BRADSHAW, Appellant, v. DELTA NATIONAL BANK, Appellee.
    No. 8508.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 6, 1977.

      J. Kearney Brim, Sulphur Springs, W. R. Sessions, Sessions, Sessions, Neill, Scucchi & Hatch, Dallas, for appellant.
    Coy Johnson, Smith, Johnson & McDowell, Sulphur Springs, for appellee.
   CORNELIUS, Chief Justice.

Delta National Bank instituted suit against William F. Locklin, Jr., and C. E. Bradshaw for recovery of the amount due on a promissory note and for foreclosure of a security interest in a 1972 Chevrolet wrecker. The petition alleged that Locklin was the owner of the wrecker, had executed the note and security agreement and had defaulted thereon, and that Bradshaw was claiming some interest or title in the wrecker. Locklin, though personally served, filed no answer and made no appearance. Bradshaw filed a written answer and, though he did not personally appear, was represented by counsel throughout the trial. A bench trial was had, after which the district court entered judgment in the Bank’s favor for the debt and foreclosure of its security interest and for sale of the wrecker in satisfaction of the debt. The judgment also contained the following:

“(6) That Defendants William Locklin, Jr. and/or C. E. Bradshaw and all persons claiming under them shall be forever barred of all equity of redemption and claim to the foregoing described vehicle or any part thereof.”

Only Bradshaw has appealed. His two points of error are:

1. “THE COURT ERRED IN RENDERING JUDGMENT FORECLOSING A MORTGAGE LIEN ON THE 1972 WRECKER AND ORDERING SEIZURE AND SALE THEREOF, AND EXPRESSLY BARRING APPELLANT FROM ALL EQUITY OF REDEMPTION AND CLAIM TO SAID VEHICLE.”
2. “THE WHOLE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JUDGMENT FOR AFFIRMATIVE RELIEF GRANTED PLAINTIFF APPELLEE HEREIN, AND THEREIN THE TRIAL COURT ERRED IN RENDERING ITS JUDGMENT DATED FEBRUARY 7, 1977.”

A statement of facts has been filed but it appears that it may not be a complete one. At the trial the court admitted into evidence, without objection, the testimony and evidence which had previously been adduced on a plea of privilege hearing, and that testimony and evidence is not contained in the statement of facts which has been filed in this Court. No findings of fact or conclusions of law were requested or filed. Where findings of fact and conclusions of law are neither requested nor filed, the judgment must be affirmed if it can be upheld upon any lawful theory finding support in the pleadings and evidence. See 4 McDonald’s, Texas Civil Practice, Sec. 16.10, pg. 30. And when only a partial statement of facts is filed the reviewing court must presume that there was in the omitted portion thereof ample evidence to support the verdict and judgment of the trial court. Moore v. Iglesias, 522 S.W.2d 607 (Tex.Civ.App.Waco 1975, no writ); McDonald v. Batson, 514 S.W.2d 94 (Tex.Civ.App.Waco 1974, no writ); Blancas v. Blancas, 495 S.W.2d 597 (Tex.Civ.App.Texarkana 1973, no writ); Harvey v. State, 389 S.W.2d 692 (Tex.Civ.App.Dallas 1965, writ ref’d n. r. e.). Even so, the statement of facts which has been presented to us contains sufficient documentary evidence and testimony from which the trial judge could reasonably find that the Bank had a valid note and security agreement from Loeklin covering the wrecker, that default had been made, that foreclosure and sale of the collateral was warranted, and that Bradshaw either had no interest in the vehicle or had transferred the same to Loeklin. The district court’s judgment for debt and foreclosure must therefore be affirmed.

We have difficulty understanding the basis of, or the authority for, the district court’s adjudication to the effect that both defendants were “forever barred of all equity of redemption and claim” to the vehicle, since it would appear that Loeklin would be entitled to any proceeds received from the foreclosure sale in excess of the amount of the debt. . But Loeklin has not complained of such adjudication and Bradshaw is in no position to do so. He has no standing to complain that the judgment is erroneous as to Loeklin, and he cannot show that the judgment harms him because there is no evidence in the record tending to prove that he had any interest in or claim whatever to the vehicle. This is not to say that by filing suit against Bradshaw the Bank could impose upon him the burden to prove his ownership of the vehicle or lose the suit. The Bank had the burden' to prove its cause of action, including its allegation that Bradshaw had no claim to the vehicle. But the Bank produced sufficient evidence from which the court could reasonably infer that Bradshaw had no such title or interest. By standing mute and producing no evidence whatever of any right or title in himself, Bradshaw left the evidence uncontradicted on that issue, thus foreclosing any effective appeal therefrom on his part.

The judgment of the trial court is affirmed.


text:
    Jimmy PHILLIPS, Jr., et ux., Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. 1699.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 7, 1977.

      Jimmy Phillips, Jr., Angleton, for appellants.
    John J. Feldt, Urban, Coolidge, Pennington & Scott, Houston, Leland B. Kee, An-gleton, for appellee.
   COULSON, Justice.

This is an appeal based on the trial court’s refusal to allow the appellants to open and close the jury argument. While we agree that this was error, we find that it was harmless and affirm.

Southwestern Bell Telephone Company (Bell) initiated eminent domain proceedings against land belonging to Mr. and Mrs. Jimmy Phillips, Jr. (the Phillips) to acquire an easement through it. The County Court at Law appointed commissioners who, after a hearing, awarded the Phillips $665.00. The Phillips appealed to the county court. Although the Phillips contested Bell’s power to condemn, the only special issues which the trial court allowed to be submitted dealt with the market value of the land subject to the easement and the damage to the remaining property. Based upon the jury’s findings the Phillips were awarded $315.00. They appeal from that judgment bringing but a single point of error: The court erred in not allowing them to open and close the jury argument.

In a condemnation proceeding, where the only questions submitted relate to market value and damages, the con-demnee has the right to open and close the jury argument. Wichita County Water Control & Imp. Dist. v. Padgett, 389 S.W.2d 314 (Tex.Civ.App.—Fort Worth 1965, writ ref’d n. r. e.); City of Teague v. Stiles, 263 S.W.2d 623 (Tex.Civ.App.—Waco 1953, writ ref’d n. r. e.). As such, the trial court erred in not permitting the Phillips to open and close.

Relying on Wagoner v. City of Arlington, 345 S.W.2d 759 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.), the Phillips argue that this right is so substantial and valuable that denial of it necessarily constitutes reversible error. While we agree that it is a highly important right, and one that we would zealously protect upon a showing of harm, we do not agree that denial of it, as such, requires reversal. As a number of cases have held, denial of the right to open and close will justify reversal only upon a showing of harm. Seureau v. Mudd, 515 S.W.2d 746 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.); Western Fire Insurance Company v. Reyna, 495 S.W.2d 57 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); Zieben v. Krakower, 346 S.W.2d 401 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.); Hassell v. Pruner, 286 S.W.2d 266 (Tex.Civ.App.—Amarillo 1956, writ ref’d n. r. e.).

The Phillips’ failure to file a complete statement of facts fatally damages their appeal since it precludes this court’s inquiry into any harm or prejudice which may have accrued to them because of the error. That part of the appellate record designated “Partial Statement of Facts” consists of only two and one-half pages and merely establishes that the Phillips preserved their error.

Affirmed.


author: HALL, Justice. JAMES, Justice,

text:
    Thornton LOMAX, Jr., et al., Appellants, v. Donald M. HENDERSON et al., Appellees.
    No. 5808.
    Court of Civil Appeals of Texas, Waco.
    Dec. 8, 1977.
    Rehearing Denied Dec. 29, 1977.
    Ross H. Hemphill, Ray, Trotti, Hemphill, Meadows & Hahn, Dallas, for appellants.
    Joe B. Cannon, Cannon, Cannon & Reed, L. L. Geren, Bradley & Geren, Groesbeck, for appellees.
   HALL, Justice.

The Brazos River Authority condemned certain interests in land for the construction, operation, and maintenance of the Sterling C. Robertson Dam and Lake Limestone on the Navasota River in Limestone, Leon, and Robertson Counties. A part of the land was 200 acres located in Limestone County of which appellees owned all of the surface and an undivided interest in the minerals, and appellants owned an undivided one-fourth mineral interest in 64 acres. In its statement of condemnation the Brazos River Authority sought the following interests in the land: “Fee simple title in and to the [200 acres], except that defendants shall retain all oil, gas, and other minerals, in, on, or under said land, it being provided, however, that no operations for the recovery of any such oil, gas, and other minerals shall be conducted on the surface of said premises.”

In the condemnation proceeding, the commissioners awarded $120,000.00 “as compensation for the land and interest in the land being taken.” They did not apportion this award among the owners. The amount of the award was not objected to by appellees, and it was deposited into the registry of the' court. Eventually, judgment was rendered in the condemnation proceeding awarding Brazos River Authority “fee simple title in and to the [200] acres, except that defendants shall retain all oil, gas, and other minerals in, on or under said land, it being provided, however, that no operation for the recovery of any such oil, gas, or other minerals shall be conducted on the surface of said premises.” The order also awarded the $120,000.00 to the eondemnees “with division of said sum to be in accordance with the order of the Court to be entered at a later date.”

Thereafter, appellees filed a Motion to withdraw the $120,000.00 asserting they were entitled to all of it because they owned the entire surface of the 200 acres and because the mineral interests in the land were not condemned. Appellants intervened, asserted their ownership of “a net sixteen mineral acres,” and alleged “they have been damaged by said condemnation taking of said minerals at the sum of $250.00 per mineral acre, making a total of $4,000.00.” The other mineral owners did not intervene. After a hearing without a jury, the court awarded all of the money to appellees. In its order the court found that appellees owned the surface in the land condemned; that appellants own an undivided sixteen acre mineral interest in the land; “that none of the oil, gas, or mineral interest was condemned under said award”; and “that said minerals lying in, under, and that might be produced from the property condemned have no reasonable cash market value.” This appeal was prosecuted from that order. We affirm the judgment.

Appellants come forward with two points of error asserting (1) there was a compensa-ble taking of their interest in the land as a matter of law, and (2) the court’s finding that their mineral interests had no market value is contrary to the great weight of the evidence.

It is settled in Texas that the ownership of minerals in place carries with it, as a necessary appurtenance thereto, the right to reasonably use so much of the surface as may be necessary to enforce and enjoy the mineral estate. “This is because a grant or reservation of minerals would be wholly worthless if the grantee or reserver could not enter upon the land in order to explore for and extract the minerals granted or reserved.” Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302, 305 (1944).

Although appellants used the words “taking of said minerals” in their plea of intervention, they do not contend that the minerals in place on the 200 acres were condemned. Rather, they argue that although their “mineral interest is not yet expressly condemned” and the ownership is still in them, the taking of the surface easement has rendered their mineral estate valueless and that they are entitled to compensation for this damage from the condemnation award.

Without question, appellants’ right of use of the surface of the land in question was taken from them. The proper measure of this loss, and the one sought to be shown by appellants on the trial, was the diminution of value of their mineral estate by the taking. Vernon’s Tex.Civ.St. art. 3265.

Appellants’ value witness was Murray Johnson, who is one of the appellants. He resides in Dallas County. He has been in the oil and gas business since 1948. Appel-lees’ value witness was Roger Steward. He lives in Freestone County. He has been engaged in the oil and gas business since 1922. Johnson testified that the reasonable market value of appellants’ minerals was $250.00 per mineral acre. Steward testified the minerals had no market value.

We need not detail the testimony of the two witnesses. Both own oil and gas interests in the vicinity of the 200 acres. Both expressed familiarity with the locations and production of developed oil and gas fields in Limestone and Freestone Counties. Both have bought, sold, and leased oil and gas interests in the area in question, but the trial court would have been justified under the evidence in believing that Steward’s activities in these respects was much broader than Johnson’s. Steward has also participated directly in drilling many wells in the area. Some were producers and some were not. One non-producer drilled by him was only 700 feet from the 200-acre tract; another was less than two miles away. Steward inferred that the 200-acre tract is situated off the productive oil and gas formations.

Conflicts in the testimony of property value witnesses in eminent domain eases are common. These conflicts simply raise questions for the trier of the facts. Here, it was the trial judge’s prerogative and duty as the fact-finder to consider the position, interest, experience, and knowledge of the witnesses, weigh their testimony, pick out what he believed to be the most credible parts, and make his findings accordingly.

A part of Steward’s testimony was this: “Actually, there is no market value on it. I don’t know how I could answer your question as you want it, but that is one thing I don’t know of any way to estimate the market value because it would be based on seismic work, scientific information as well as a belief in what you think you are going to get, and so there is a bunch of variables in there that I couldn’t quite estimate. I might estimate what I would pay or wouldn’t pay.
“Q. Do you own any minerals yourself that you say you put no value on? “A. I didn’t say that I didn’t put no value on them.
“Q. What was your testimony about the value of the minerals?
“A. I said there was no market value in it, which I think is a different thing.”

Appellants argue in effect that this testimony destroys the probative worth of Steward’s testimony on market value. We disagree. To the contrary, it shows the witness believed the only possible value of the minerals was a nominal, speculative one. Appellants do not seek nominal damages.

We cannot say the trial court’s finding is so contrary to the great weight and preponderance of all of the evidence as to be manifestly unjust. That is the test. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952).

Appellants’ points are overruled. The judgment is affirmed.

JAMES, Justice,

dissenting.

I respectfully dissent. My opinion is based upon two basic premises:

(1) That Appellants are entitled to damages under Article I, Section 17, of the Texas Constitution, based upon the difference in the cash market value of their mineral rights immediately before and immediately after the taking by the condemning authority, which was included in the $120,-000.00 award; and

(2) The trial court’s finding that Appellants’ mineral rights had no market value is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate (1952) 150 Tex. 662, 244 S.W.2d 660.

The trial court’s order recites that “none of the oil, gas or mineral interest was condemned under said award”; however, the Statement of Condemnation filed by the Brazos River Authority specifically provides that “no operations for the recovery of any such oil, gas, and other minerals shall be conducted on the surface of said premises

The condemning authority did not “take” the entire mineral rights of Appellants; however, such authority “took” Appellants’ rights to the use of the surface for the recovery of the oil, gas, and other minerals. This was the taking of an interest in real estate and in my opinion was the taking of important property rights.

Here, Appellants own mineral rights in sixteen acres of land. Appellants own no surface rights. All of the land under which Appellants own this mineral interest is proposed to be put under water for lake or reservoir purposes. Appellants own no surface rights in land anywhere nearby the sixteen acre interest.

Article I, Section 17, of the Texas Constitution in its pertinent parts provides:

“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; _”

In the case at bar, we are not called upon to decide whether Appellants’ interest in real estate has been “taken” or “damaged”; it is well settled that Appellants are entitled to compensation in either event. Our Supreme Court has held that a direct physical invasion of property is not required under the eminent domain section of our Constitution for a property owner to be entitled to compensation for the damaging of his property for a public use. DuPuy v. City of Waco (Tex.1965) 396 S.W.2d 103; Spann v. City of Dallas (1921) 111 Tex. 350, 235 S.W. 513. In DuPuy, it was held that the property owner was entitled to compensation under Article I, Section 17, of the Constitution for damages for unreasonable interference with his “easement of access” of his property, which was measured by the diminishment in the market value of his property resulting from such loss of access. In Spann, the Supreme Court said:

“Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.” (emphasis supplied).

The Supreme Court of Texas has expressly refused to compartmentalize an exercise of the sovereignty as either police power or eminent domain for the resolution of problems under Article I, Section 17. DuPuy, and the eases cited therein in Volume 396 S.W.2d at page 107. Also see San Antonio River Authority v. Garrett Brothers (San Antonio, Tex.Civ.App. 1975) 528 S.W.2d 266, NRE; City of Austin v. Teague (Waco, Tex.Civ.App. 1977), opinion dated September 28, 1977, 556 S.W.2d 400. Also see Trinity River Authority v. Chain (Beaumont, Tex.Civ.App. 1969) 437 S.W.2d 887, NRE; City of Houston v. McCarthy (Houston, Tex.Civ.App. 1st 1971) 464 S.W.2d 381, NRE.

It is well settled in Texas that the mineral interest is the dominant estate in land, and as such, carries with it, as a necessary appurtenance thereto, the right to go in and upon the surface of land in order to produce and market the oil, gas and other minerals. Harris v. Currie (1943) 142 Tex. 93, 176 S.W.2d 302; Brazos River Conservation and Reclamation District v. Adkisson (Eastland, Tex.Civ.App. 1943) 173 S.W.2d 294, writ refused. In Harris v. Currie, supra, our Supreme Court says at page 305:

“The mere grant or reservation of minerals in place does not vest the grantee or reserver with any title to the surface. In spite of this, the grant or reservation of minerals carries with it, as a necessary appurtenance thereto, the right to use so much of the surface as may be necessary to enforce and enjoy the mineral estate conveyed or reserved. This is because a grant or reservation of minerals would be wholly worthless if the grantee or reserver could not enter upon the land in order to explore for and extract the minerals granted or reserved.” (emphasis supplied).

In Adkisson, supra, at page 301, the court said:

“Under the authorities we do not believe that the rules of law applicable to the condemnation of an easement in a leasehold estate differ in principle from the rules applicable to the condemnation of a fee or interest owned by the lessor. As a practical matter it was in no respect feasible for Adkisson to drill in the water and produce oil. The use and value of his property was destroyed, as in the case of United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 357, 47 L.Ed. 539, where the court, in disposing of a case where land was flooded by a dam, says:

‘It is clear from these authorities that where the government by the construction of a dam or other public works so floods lands belonging to an individual as to substantially destroy their value there is a taking within the scope of the 5th Amendment. While the government does not directly proceed to appropriate the title, yet it takes away the use and value; when that is done, it is of little consequence in whom the fee may be vested.’ ” (emphasis supplied).

In the case at bar, Appellants were denied by the condemning authority of their right of ingress and egress, and the right to produce from the surface, even though they owned no title to the surface. Although Appellants’ mineral interest is not expressly condemned, yet they have been denied the right to produce from the surface. In Thompson v. Janes (1952) 151 Tex. 495, 251 S.W.2d 953, our Supreme Court held that in cases of condemnation of easements where the easement deprives the owner of any beneficial use of the land, the landowner may recover as damages the market value of the land. Also see Lower Nueces River Water Supply District v. Sellers (San Antonio, Tex.Civ.App. 1959) 323 S.W.2d 324, 333, 334, NRE.

Appellees suggest that Appellants’ minerals can be produced by “whipstock” or directional drilling, and therefore the minerals will not be valueless after the flooding. However, the testimony shows that whip-stocking is substantially more expensive than regular drilling. But where would Appellants “whipstock” from? They do not own any surface nearby from whence whip-stock operations could be conducted. See Robinson v. Robbins Petroleum Corp. (Tex.1973) 501 S.W.2d 865.

Here, the condemnation by the Brazos River Authority deprived the Appellants of the beneficial use of their property, took their mineral easement, and as a practical matter left them with no alternate means of production. For these reasons, I would hold that Appellants are entitled to compensation out of the $120,000.00 award under Article I, Section 17 of the Texas Constitution, for the difference in the market value of their mineral rights immediately before and immediately after the taking by the condemning authority. Therefore, I would sustain Appellants’ first point of error.

Appellants’ second and remaining point of error asserts the trial court erred in finding that Appellants’ mineral rights had no market value, and that such finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. I would sustain this contention.

There were two expert witnesses who testified concerning the value of the Appellants’ mineral rights, one being Murray Johnson (one of the Appellants) for the Appellants, and the other being Roger Steward for the Appellees. Both witnesses had had many years of experience in the oil and gas business, much of which was had in and near the property in question.

Mr. Johnson testified that in his opinion the mineral rights in question had a cash market value of $250.00 per acre (or $4000.00 in all) immediately prior to the taking, and had no cash market value immediately after the taking. Johnson testified that the Oletha Gas Field, the Pokey Gas Field, the Southwest Oletha Field and the Freestone Field are all within one to four miles from the property in controversy, demonstrating that there is or has been oil and gas production in the immediate vicinity of the land in question. Additionally, he testified that the Hinton Drilling Co. was (at the time of trial) leasing near the land in controversy; and that on May 16, 1977, Appellants themselves received a $15.00 per acre oil and gas lease bonus plus an additional ⅛⅛ royalty from a lease to the Fair Oil Co. for their interest in the land adjoining and in the same survey as the 200 acre Henderson tract; that Appellants had leased the minerals in controversy several times over the years for consideration comparable to that received by the Fair Oil Co; that a new well was presently (at the time of trial) being drilled some five or six miles from the mineral rights in controversy. Based on the fact that Appellants own no surface area adjoining the Henderson property and because of the substantial expense and impracticality of directional drilling, Johnson testified that the mineral rights in question would have no market value after the flooding of the surface.

There was evidence that two dry holes had been drilled about one and three quarters miles from the Appellants’ minerals in question. Mr. Steward testified that a salt dome was hit at 13,634 feet on the A. W. White and O. A. Henderson tract before reaching the Smackover formation. But on cross-examination he testified that there had been Smackover production as deep as 16,000 feet in the area, particularly in Freestone County. Moreover, Steward could not say what the extent of the salt dome was, or how far or in what direction it ran. Steward testified that drilling had ceased on the L. B. Sims tract at 7,230 feet because it was not economically feasible to continue at that time. Concerning the effect of these two dry holes on the value of Appellants’ minerals, Johnson said several factors had to be considered. First, dry holes simply meant there was no production at a given depth. Next, the profitability of the venture was an important factor. At the time of the drilling of the dry holes, gas was selling at six cents per 1000 cubic feet; whereas as of the time of trial there was evidence gas was selling for $2.30 per 1000 feet. Johnson said producers are likely to be more willing to undertake the risk if the profits promise to be greater, dry holes notwithstanding. Although the two dry holes in question were drilled sometime in the 1950’s, yet there has been continued activity in the area. The two dry holes need to be weighed against the evidence of continued interest in the area, Appellants’ bonus paid in May 1977 (of $15.00 per acre plus an additional Vsth royalty) for their minerals in an adjoining tract, the Hinton Oil Companys’ leasing operations, and the new well being drilled within six miles of the land in controversy. In my opinion the two dry holes testified about, when weighed against the other testimony and economic considerations hereinabove discussed, are not conclusive enough to render Appellants’ mineral rights of no market value.

It is a matter of common knowledge that with oil and gas getting in shorter supply over the country, accompanied by greater demand, and the inevitable increase in the price oil and gas brings, and with the great increase of oil and gas explorations taking place, that the market value of mineral rights such as that owned by Appellants are influenced by such factors.

The majority apparently attaches considerable weight to their interpretation of what Steward said about the market value of Appellants’ minerals, their interpretation being that Steward said the minerals had no market value. His testimony along this line was vague and when taken in context of his other testimony, in my opinion he did not exactly say that.

The following is an excerpt from Steward’s testimony on direct examination:

“Q. All right then, are you acquainted with the reasonable cash market value or fair market value or fair value of minerals on undeveloped land in that area? I say are you?

“A. I wouldn’t say that.

“Q. Well, I say you deal in minerals

“A. yes.

“Q. — buy and sell gas and oil leases, it is your business to keep up with what it is buying and selling for and where they are drilling wells?

“A. Yes, that’s right.

“Q. You might not have understood me. I am asking you if you are acquainted with the value of these minerals.

“A. Yes.

“Q. And what would you say would be the value of undeveloped minerals on the Donald Henderson 200 acre tract, taking into view the fact that you have got a dry hole just northwest of it and got a salt structure above the Smackover a mile and a half or so west of it, how much an acre would you say the minerals would be worth on the market today?

“A. Actually there is no market value on it. I don’t know how I could answer your question as you want it, but that is one thing I don’t know of any way to estimate the market value because it would be based on seismic work, scientific information as well a belief in what you think you are going to get, and so there is a bunch of variables in there that I couldn’t quite estimate. I might estimate what I would pay- or wouldn’t pay.

“Q. You estimate that it has no market value then?

“A. No actual market value in my opinion.” (emphasis supplied).

In summary, Steward testified in one breath the minerals had no market value, and in another breath that there were so many variables involved that he was unable to estimate the market value. In another place in his testimony, Steward testified that there were Texaco units presently producing, the nearest of which were about two miles from Appellants’ minerals.

From the record as a whole, I am of the opinion that the trial court’s finding that Appellants’ minerals immediately prior to the condemnation had no cash market value is factually insufficient under the test prescribed by In re King's Estate, supra. Therefore I would sustain Appellants’ second point of error.

For the above reasons I would reverse the trial court’s judgment and remand the cause between Appellants and Appellees for retrial.