author: NYE, Chief Justice.

text:
    Mrs. Manuela GOMEZ, Appellant, v. Gilberto GOMEZ et al., Appellees.
    No. 1366.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 25, 1979.

      William L. Morrow, Brownsville, for appellant.
    Ernesto Flores, Jr., Paul Shinkawa, Mel-chor Chavez, Chavez & Barnard, Harlingen, for appellees.
   OPINION

NYE, Chief Justice.

This is a suit to recover the balance due on a promissory note brought by Manuela Gomez against her former husband, Gilberto Gomez, and his mother, Maria Gomez, the maker of the note and guarantor of the note respectively. The trial judge entered a take nothing judgment. The plaintiff perfected her appeal to this Court from the trial court’s adverse judgment. The trial judge subsequently filed separate findings of fact and conclusions of law which were contrary to and did not support the judgment. The primary issue before us, then, concerns the effect that these findings of fact should have on the previously entered judgment.

Gilberto Gomez, while married to but separated from the plaintiff, executed a promissory note in the principal sum of $3,111.35, payable to plaintiff in sixteen monthly installments commencing on August 1, 1976. After the final payment became past due, plaintiff brought suit, alleging that $2,700.00 of the principal amount remained due and unpaid. Defendants answered and alleged that the note had been executed without consideration.

This case was tried to the court without the intervention of a jury. Neither plaintiff nor defendants requested the services of a court reporter. At the close of the one day trial, the trial judge apparently requested the parties to submit briefs without making an oral pronouncement of his decision. Thereafter, the defendants prepared a proposed take nothing judgment which the trial judge signed and entered on February 22,1978. The judgment had not been approved as to form by plaintiff.

The judgment stated, in relevant part, as follows:

“In the absence of application for trial by jury, the Court after presentation of testimony, evidence and argument of counsel, found that there was no consideration for the Note, subject matter of this suit. Based on such findings, the court is of the opinion that the judgment should be rendered in favor of defendants.
IT IS THEREFORE ADJUDGED; . (plaintiff take nothing) . .”

The trial court’s judgment contains no other recitations of fact. The appellate record contains “Proposed Findings of Fact and Conclusions of Law” filed by the defendants. Although these findings and conclusions support the judgment, the trial judge did not sign them.

The record indicates a copy of the trial court’s judgment was sent to the defendants and to the plaintiff on the day before it was signed and entered. Forty days after the judgment was signed and entered, the trial court filed numerous findings of fact which are in direct conflict with the judgment. In summary, they are that: 1) defendant’s employer accused defendant of taking, and demanded the return of, the sum of $3,111.35 which was missing from certain funds which were under the defendant’s control in the course of his employment; 2) the plaintiff agreed she would pay the missing money to defendant’s employer on behalf of defendant; 3) the employer then agreed not to press criminal charges against the defendant; 4) defendant agreed to reimburse plaintiff for such money paid to the employer; 5) defendant’s mother agreed to guarantee such payment to plaintiff; 6) these agreements were evidenced by the March 26,1976, promissory note executed by the defendants and a letter agreement acknowledging the debt executed by defendant; 7) plaintiff subsequently paid the total sum due to defendant’s employer; and 8) defendant paid plaintiff a total of $411.35 of the principal amount of the note, leaving an overdue balance of $2,700.00 which had not been paid by either defendant. The trial judge also entered the following specific findings:

“12. The consideration of the Defendant Gilberto Gomez to pay $3,111.35 to Plaintiff Manuela Gomez was the agreement of Plaintiff Manuela Gomez to pay on his behalf the debt claimed by Valley Transit Company.
25. The judgment that was heretofore signed by the Court on February 22,1978, was presented to the Court as though it were a default judgment and was signed by mistake.”

Plaintiff’s sole point of error on appeal is: The trial court mistakenly signed a judgment in favor of defendants when its findings of fact and conclusions of law were that judgment should be rendered in favor of plaintiff. Plaintiff’s argument in support of this point is, in essence, that the trial court’s separately filed findings and conclusions are controlling and, therefore, the trial court’s judgment should be reversed and rendered to conform with them. All parties agree that the findings of fact and conclusions of law are in irreconcilable conflict with the trial court’s judgment.

Defendants, however, contend that the judgment of the trial court should be affirmed because plaintiff waived her point of error by failing to file a motion for new trial. Defendant specifically argues that a motion for new trial was necessary in this case to apprise the trial judge of plaintiff’s complaint which had not otherwise been ruled upon. Defendants’ contention is without merit.

Rule 324 states that “it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled on.” It is no longer necessary, in most instances, however, to file a motion for new trial as a prerequisite to the right to present a particular complaint on appeal. The basis for plaintiff’s specific complaint did not become apparent until the trial court filed its findings of fact and conclusions of law ten days after the trial court’s judgment became final. See Rule 329b(5). It would have been useless for plaintiff to file a motion for new trial at that time to complain that the trial court’s findings of fact did not support the trial court’s judgment because the trial court had no jurisdiction to grant such a motion or to correct, modify or otherwise change its judgment. See Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex.1974); Carrillo v. State, 480 S.W.2d 612 (Tex.1972).

Rule 307 provides that: “. . . any party claiming that the findings of the court ... do not support the judgment, may have noted in the record an exception to said judgment and thereupon take an appeal . without a statement of facts or further exceptions in the transcript, but the transcript . . . shall contain the conclusions of law and fact . . . and the judgment rendered thereon.”

Plaintiff excepted to the judgment when she timely perfected her appeal by filing an appeal bond pursuant to Rules 354 and 356. Although a notice of appeal is no longer required, the record also contains plaintiff’s notice of appeal. We conclude that plaintiff has sufficiently perfected her sole point of error that the trial court’s judgment is not supported by its findings of fact. See Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950); Loy v. Kuykendall, 347 S.W.2d 726 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.); Rules 307, 354 and 356, Texas Rules of Civil Procedure.

Defendants also contend that we are not authorized to consider the trial court’s separately filed, conflicting findings of fact because they were not timely filed. Rule 297 requires the trial judge to file findings of fact and conclusions of law, when they are requested, thirty days before the time for filing the transcript. Here, the trial court’s findings and conclusions were filed forty days after the final judgment was entered, or twenty days prior to the time the transcript was due. See Rule 386. As a general rule, the failure of a trial court to file its findings of fact in accordance with the rule is harmless error if the record reaches the appellate court in time and it shows that the complaining party has suffered no injury because of its late filing. See Fonesca v. County of Hidalgo, 527 S.W.2d 474, 480 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Law v. Law, 517 S.W.2d 379 (Tex.Civ.App.—Austin 1974, writ dism’d); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.—Houston [1st Dist.] 1965, writ ref’d n. r. e.); Joe R. Starks Construction Co., Inc. v. G. A. Mallick, Inc., 425 S.W.2d 409 (Tex.Civ.App.—Fort Worth 1968, no writ); 4 McDonald, Texas Civil Practice, § 16.08.03(c) (1971).

Defendants specifically argue that they were injured by the trial court’s late filing because they were effectively precluded from seeking additional or amended findings. The record does not indicate that defendants objected to the trial court’s late findings or that they requested the trial court to find additional, substituted or amended findings. Rule 298 provides that after the judge files his original findings and conclusions, either party may, within five days, request specified, further, additional or amended findings, and thereafter, the trial judge has five days to comply. Here, had the defendants availed themselves of this procedure, there would have been ten days remaining before the transcript was due to be filed in this Court. Although late, such findings and conclusions could have been filed in time for appellate review. We conclude that the findings of fact and conclusions of law filed by the trial judge are properly before us for our reconsideration.

In the absence of a statement of facts, as is the case here, the appeal must be decided upon the transcript which includes the pleadings, stipulations, findings of fact and judgment of the trial court. It is our duty generally to affirm the judgment of the trial court unless the pleadings, stipulations and findings of the trial court do not support the judgment. Phillips v. American General Ins. Co., 376 S.W.2d 808, 810 (Tex.Civ.App.—Amarillo 1964, no writ); Dorman v. Cook, 262 S.W.2d 744 (Tex.Civ.App.—Beaumont 1953, writ dism’d); See Mial v. Mial, 543 S.W.2d 736, 737 (Tex.Civ.App.—El Paso 1976, no writ); Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Law v. Law, 517 S.W.2d 379, 383 (Tex.Civ.App.—Austin 1974, writ dism’d); 4 McDonald, Texas Civil Practice, § 16.10 (1971). If the findings of fact are susceptible to different construction, they should be construed to be in harmony with the judgment. Mial v. Mial, 543 S.W.2d 736, 737 (Tex.Civ.App.—El Paso 1976, no writ); Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.).

In this instance, the later filed findings of fact and conclusions of law do not support the trial court’s judgment. The judgment of the trial court cannot, therefore, be affirmed based on the record before us. Assuming that other matters set out in the Rules such as 434 are satisfied, it is ordinarily the duty of the appellate court to render such judgment which the trial court should have entered. Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (Tex.1942). This Court after finding error in the judgment of the trial court, has broad discretion, in a proper case, to reverse and remand in the interest of justice. Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951); Rules 434, 505, Texas Rules of Civil Procedure. This is that type of case.

We find that this case has been fraught with numerous procedural irregularities and other errors which are apparent in the record. Justice would be better served by remanding the cause for an entirely new trial. The judgment of the trial court is accordingly reversed and the cause is remanded for a new trial.

REVERSED AND CAUSE REMANDED.


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    The CITY OF BISHOP, Appellant, v. SOUTH TEXAS ELECTRIC COOPERATIVE, INC., Appellee.
    No. 1350.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 25, 1979.

      Allan L. Potter, Corpus Christi, for appellant.
    Willard Tinsley,' Bellaire, Guy Allison, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This case involves an appeal from a take nothing judgment in a property damage suit. The volunteer fire department of the City of Bishop, Texas, responded to a grass fire on the King Ranch which was allegedly caused by the negligence of South Texas Electric Cooperative, Inc. During the course of the fire, a fire truck owned by the City was destroyed. Following a jury trial, the trial court rendered a take nothing judgment. The City has appealed. The parties will henceforth be referred to as “plaintiff” and “defendant,” as they were in the trial court.

The jury, in response to Special Issue 3, found that on February 22, 1974 (when plaintiff’s fire truck was destroyed while used to fight a grass fire), the members of plaintiff’s volunteer fire department were negligent, and, in answer to Special Issue 4, found that such negligence was a proximate cause of the damage to the fire truck. The jury, in response to Special Issue 1, found that defendant was negligent, but, by its answer to Special Issue 2, failed to find that such negligence was a proximate cause of the damage to the fire truck. The parties attack the jury findings which were adverse to them by “no evidence” and “against the great weight and preponderance of the evidence” points. In addition, plaintiff further asserts that the evidence is “factually insufficient” to sustain the jury’s answers to Special Issues 3 and 4.

On February 22,1974, Aslow Zamzow and Milton Sievers, employees of defendant, were patrolling defendant’s electric power line easement on, over and across a portion of the King Ranch. The easement, about fifty feet wide, was covered by thick grass which was about two or three feet tall. Zamzow and Sievers left defendant’s office at Victoria, Texas, in a pickup truck at about 8:30 a. m. on February 22, 1974. They entered the easement at a point about two miles south of Bishop, Texas, at about 10:45 a. m. They had driven about two miles over the easement when they noticed a fire some two hundred yards behind them. At that time both the pickup and the fire, which was then about three feet in diameter, were within ten feet of the easement’s center line. There was testimony to the effect that the truck had passed over the point where the fire began prior to the time the fire was discovered. Apparently, no one else was in the vicinity at the time. Upon discovering the fire, Zamzow and Sievers went back and tried to extinguish it with shovels. Sievers testified that they did not use a fire extinguisher in combating the fire although their truck was equipped with one at the time.

After failing to extinguish the fire on their own, Zamzow and Sievers summoned assistance by contacting defendant’s Robs-town Office and King Ranch personnel. Someone then called plaintiff’s volunteer fire department. Two volunteer firemen responded and went to the fire in one of plaintiff’s fire trucks, which was a “GI” truck that had been specially outfitted as a “Brush” fire truck for the purpose of fighting brush and grass fires. The plaintiff’s firemen, along with personnel from the King Ranch came to the fire. They fought the fire for some time, and when it became evident that the water supply in the tank on the GI brush fire truck was running low, it was suggested that Wesley Goldman and Gene Hensley, two of plaintiff’s volunteer firemen, proceed to plaintiff’s fire station in Bishop and get another fire truck to assist in fighting the fire.

The truck which Goldman and Hensley obtained, and which was later destroyed by the fire, was a fully equipped Chevrolet fire truck. Its equipment included two reel-type hoses one-inch in diameter, one four-inch hose, one two-inch preconnected hose in the back of the truck, and a pump that “could shoot” water a distance of forty to fifty feet from the nozzle of the particular hose then in use. The procedures for using the pump were: the driver pushed in the truck’s clutch and engaged the pump lever, which, in turn, activated the pump’s motor. After engaging the pump lever, the driver then put the truck’s engine in third gear; the pump then disengaged the running gear of the truck and the driver engaged the transmission, which, in turn, drove the pump motor; the driver would then get out of the truck and control the valve to the pump; during all of such time, the other fireman operated the hose.

When Goldman and Hensley were dispatched to bring the Chevrolet fire truck to the scene of the fire, it was intended that the truck would be used only to refill the storage tank on the GI fire truck with water. Upon arrival at the scene in the fire truck, they discovered that the GI truck’s tank had been refilled with water from a vacuum truck, supplied by King Ranch employees. The foreman of that particular portion of the King Ranch requested that the Chevrolet fire truck be placed near a road on the ranch to prevent the spread of the fire beyond that location. As time went by, several fires broke out beyond the road, which were successfully extinguished by Goldman and Hensley. About an hour later, Goldman and Hensley were requested by one of the King Ranch employees to move the truck to a firebreak which had been constructed by King Ranch personnel to prevent the spread of the fire beyond the firebreak. Accordingly, Goldman and Hensley moved the truck to the new location. At the time of such move, the GI fire truck and the King Ranch fire-fighting vehicles were on the opposite side of the fire, and were not then visible to either Goldman or Hensley.

At this point in time, the fire was moving towards the west, and its west line was approximately eighty feet east of the Chevrolet fire truck. It became obvious to Goldman that the fire would soon reach the firebreak and he doubted that the firebreak would contain the fire; it was decided to move the truck into the grassy area west of the advancing fire and to pump water on the fire. Goldman then unrolled about fifty feet of hose, and Hensley, the then driver of the truck, moved the truck from its stationary position in the firebreak and followed the above-stated procedures for pumping operations. However, he was unable to pump water in the quantity needed. The engine motor was kept running at all pertinent times, and Hensley, in his attempts to pump water, “revved” the truck’s engine. Because the fire was then perilously close to the truck, Hensley ceased his efforts to pump water and attempted to drive the truck away from the fire. The truck’s motor died and he was unable to restart it. Hensley was forced to abandon the truck which was subsequently engulfed with flames and destroyed.

It was established by the evidence that the Chevrolet fire truck’s motor had been fully functional and operational at all times prior to the time that it would not restart. The truck was checked weekly for mechanical problems. None were discovered. Goldman testified that he thought he could have controlled the fire if the pump on the truck had worked. He also testified that the truck may not have burned if the firebreak, which was built by King Ranch employees after the fire started, had extended all the way to the fenceline.

With respect to the cause of the fire itself, Bennie Spaulding, fire chief of the Kingsville fire department, Kingsville, Texas, testified that it could have been the hot muffler of the defendant’s truck coming into contact with the thick and high grass growing on the easement. The grass was cut every two years or so, depending on weather conditions.

Concerning the procedures utilized by Goldman and Hensley to fight the grass fire, Spaulding testified that the preferable way to fight a grass fire would be to fight the fire from inside an already burnt area rather than from a point in high grass not yet burned. He stated that one should get into high grass while fighting a grass fire only if it is absolutely necessary, such as when the smoke is too intense or the wind has suddenly shifted. The procedures outlined by Spaulding were based on the reasoning that it is better to fight a fire from behind so that it cannot spread in the direction of the firemen. There is no evidence that Goldman and Hensley were confronted with intense smoke or a sudden wind shift. Goldman, on the other hand, testified that he did not think that the fire truck should have driven out into the burned area because of the danger of “hot spots” which might catch the truck on fire. Spaulding testified that it was standard practice to work around hot spots. Hensley, however, recognized the reasoning behind Spaulding’s theory that grass fires should be fought from inside the burned out area.

We have read the record in its entirety, and, in accordance with the well established rule in disposing of the “no evidence” points, have considered only the evidence which, when viewed in its most favorable light, supports the jury’s findings and have disregarded all evidence which would lead to a contrary result. Furthermore, in disposing of the “against the great weight and preponderance of the evidence points,” we have carefully considered and weighed all of the evidence. Accordingly, plaintiff’s points 3 through 8 and defendant’s cross-points 1 and 2 are overruled.

We next turn to plaintiff’s attack on the failure of the jury to find that defendant’s negligence was a proximate cause of the damage to the Chevrolet fire truck. As has been stated, plaintiff contends 1) there is no evidence to support the finding that defendant’s negligence was not a proximate cause of the damage, and 2) such finding is against the great weight and preponderance of the evidence.

In Texas, two elements are necessary to constitute proximate cause: 1) cause in fact and 2) foreseeability, Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 355 (1951). There must be proof of both elements. Enloe v. Barfield, 422 S.W.2d 905, 908 (Tex.1967). In the instant case, the cause in fact element of proximate cause is established by the evidence. Clearly, the plaintiff’s fire truck would never have been destroyed if the grass fire had not been started as a result of the negligence of defendant’s employees. The question to be resolved is whether the foreseeability element was proved. The test for foreseeability is whether the negligent defendant, as a person of ordinary intelligence and prudence, should have anticipated the danger to others created by his negligent act, although it is not required that he anticipate just how the injuries will arise out of the dangerous situation. Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110, 111 (1939). It has been held that when a defendant has violated a duty imposed upon him by the common law, he should be held liable to every person injured, whose injury was the natural and probable consequence of the misconduct. Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274 (1886).

In determining questions relating to the foreseeability element of proximate cause our Supreme Court has uniformly applied what might be termed a practical, common sense test, the test of common experience. San Antonio & A. P. Ry. Co. v. Behne, 231 S.W. 354 (Tex.Comm’n App.—1921, jdgmt adopted). Applying the test of common experience to the facts of the case at bar, we do not believe that defendant’s negligence in starting the fire could be justly regarded as a proximate cause of plaintiff’s damages. Plainly, defendant should have known that firefighters and their equipment would respond to the fire. Likewise, defendant should have reasonably anticipated a fire truck becoming immobilized in the area of the fire because of hidden tree stumps, bailing wire, or ground ruts therein. Such dangers are inherent in fighting a grass fire in an overgrown pasture or field within the enclosures of ranch land. Nothing short of prophetic ken, however, could have anticipated the happening of the combination of events which resulted in the truck’s destruction in this case. See Gulf, C. & S. F. Ry. Co. v. Bennett, 219 S.W. 197 (Tex.Sup.1920). No one standing at the stage of events leading up to the fire and its assault upon the human defenders could ' have regarded it as other than a bare possibility at best, that at a later period of the fire’s spread, the equipment of the fire truck being used to extinguish the fire would fail to work, or that the truck’s engine would die and would not restart, and as a result of such failures would be destroyed by the fire itself. Defendant’s employees had no reason to anticipate that those failures would occur while the fire truck in question was being used to fight the fire. It was precisely those failures that constituted the efficient causes of the truck’s destruction.

It is well settled in Texas that a prior and remote cause cannot be made the basis for an action for damages if it did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible if the injury is the result of some other cause which reasonable minds would not have anticipated, even though the injury would not have happened but for such condition. Bell v. Fore, 419 S.W.2d 686 (Tex.Civ.App.—Texarkana, 1967), aff’d 434 S.W.2d 117 (Tex.1968); Robertson v. Southwestern Bell Telephone Co., 403 S.W.2d 459 (Tex.Civ.App.—Tyler, 1966, no writ). Here, the fire was nothing more than a prior cause which furnished the condition that made possible the destruction of the truck. The injury itself was the result of firefighting equipment failures, remote causes which reasonable minds would not have anticipated.

In essence, two causes concurred to produce the injury incurred by plaintiff in this case: the negligence of the defendant in starting the grass fire and the unanticipated failure of the plaintiff’s equipment while fighting the fire. The latter cause, however, was an improbable situation not usually happening in the common course of events. This distinguishes the case at bar from one such as Hopson v. Gulf Oil Corp., supra, where a seaman was injured while moving heavy oil drums aboard ship while at sea. There, two causes concurred to produce the injury: the failure of the defendant to furnish the plaintiff with a helper and the presence of grease on the deck of the ship. Unlike the equipment failure in the case now before us on appeal, the presence of grease in Hopson was not improbable. It was not so unusual as to be wholly without the sphere of events which a defendant ought reasonably to have anticipated. See San Antonio & A. P. Ry. Co. v. Behne, supra.

For us to hold in this case that defendant’s negligence was a proximate cause of the plaintiff’s damages would be tantamount to making owners and occupiers of easements across ranch lands insurers against loss of equipment by fire departments when fighting fires. If a city could recover for a fire truck which was destroyed while fighting a fire where the fire truck could have been saved had it (the truck) performed up to minimal standards of efficiency, then the city could recover for any such damages, no matter how improbable, so long as the defendant was negligent. That is not the law, however, in Texas, nor should it be. Thus, even though the truck in this case would never have been lost but for defendant’s negligence in starting the grass fire, we cannot hold that foreseeability, an element of a proximate cause of plaintiff’s damages, was proved. We, therefore, overrule plaintiff’s points 1 and 2 which, in effect, complained of the jury’s finding that defendant’s negligence was not a proximate cause of plaintiff’s damages.

Plaintiff, by points of error 9 and 10, further contends that the trial court committed reversible error in refusing to submit its requested instructions concerning “rescue,” which read, as follows:

“One is not negligent in an effort to save land or property of a third person from harm unless he acts in a rash, imprudent and negligent manner.”
“It is not negligence for a person to expose himself to danger in an effort to save the land or property of a third person from harm unless the effort itself is unreasonable or he acts unreasonable in the course of it.”

We have carefully considered all arguments made by plaintiff in its brief in support of its position. We hold that the trial court properly refused to submit either of the requested instructions. Moreover, the failure to submit the requested instructions did not amount to such a denial of plaintiff’s rights “as was reasonably calculated to cause and did cause the rendition of an improper judgment in the case.” Rule 434, T.R.C.P. Points 9 and 10 are overruled.

Plaintiff, in point of error 11, asserts that the trial court “erred in failing to allow appellant to show voluntary payments by appellee as admissions.” Plaintiff requested that defendant admit that it (defendant) contributed $1,000.00 to plaintiff “to assist in purchasing a new fire truck in 1974 after the fire which is the basis of this suit.” According to the statement of facts, defendant admitted that it did make such a contribution. At the trial, plaintiff offered the admission “as an admission of liability after the accident.” The trial court sustained defendant’s objection to the tender of such admission, apparently on the argument advanced by defendant’s counsel that “it’s not an admission of guilt or negligence on the part of this defendant,” but was made “strictly in a form of contribution . in hopes to add to the purchase of a new fire truck.” Counsel for plaintiff, then on a bill of exception, called Mrs. Jo Pierce, plaintiff’s City Secretary, who testified, as follows:

“Q. Following this fire did you receive any correspondence from South Texas Electric Cooperative, Inc.?
A. Yes, I did.
Q. Is that document in front of you one of these pieces of correspondence?
A. Yes, it is.
Q. Who is that document from?
A. Riggs Shephard, General Manager, South Texas Electric Cooperative.”

Whereupon, counsel for plaintiff, in making its bill, offered its Exhibit No. 7, apparently the “document” from Shephard mentioned by Mrs. Pierce, and its Exhibit No. 8, a check from defendant. Counsel for defendant objected to the offer of either of the exhibits on the same grounds asserted by defendant in its opposition to the introduction of the aforesaid admission. The trial judge sustained the objections.

Neither of the offered exhibits were attached to or made a part of the bill of exceptions or of the statement of facts. Under the record here presented, we hold that plaintiff has failed to show this Court, that the trial court committed reversible error in its rulings complained of by plaintiff in point 11. The point is overruled.

The judgment of the trial court is AFFIRMED.


author: MASSEY, Chief Justice.

text:
    B. G. BLANCHARD et al., Appellants, v. FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF the CITY OF FORT WORTH et al., Appellees.
    No. 18056.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 25, 1979.
    Rehearing Denied March 1, 1979.

      Farrar & Claunch and Jim Claunch, Fort Worth, for appellants.
    Arthur R. Peterson, City Atty., and Richard Henderson, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

At all times material B. G. Blanchard and R. C. Sutherland, appellants, were policemen of the Fort Worth, Texas, Police Department. An event occurred about 10:00 P.M. on May 14,1977, when one Jerry Dean Cunniff was arrested following extended police pursuit of the pick-up truck driven by him. Thereafter, Cunniff filed complaint against these appellants (and other officers) charging, among other things, their use of unnecessary force in accomplishing his arrest.

Pursuant to prescribed practice an investigation was conducted by the Internal Affairs Division of the Police Department. The investigation file developed was delivered, with recommendations, to the Chief of Police. On November 9, 1977, by separate letters, each of the defendants were notified by the Chief of Police that they were suspended as members of the department; Blanchard for a period of ten calendar days, and Sutherland for five calendar days, the periods of suspension to begin November 9, 1977. On the 9th of that month Sutherland gave notice of appeal; and on the 15th Blanchard gave his notice of appeal.

On December 8, 1977 the Firemen’s and Policemen’s Civil Service Commission of Fort Worth, Texas held a single joint hearing of the appeals. On December 9, 1977, by orders separately entered, the Commission ruled that the orders suspending appellants be sustained. Appellants severally appealed to the District Court of Tarrant County, Texas. The two cases were consolidated and tried together. On March 27, 1978 judgment was rendered by that court denying the appellants’ separate requests for reinstatement as members of the police department during the periods ordered by the Chief of Police that they be suspended, with back pay for the periods of their suspensions. The judgment denied them the attorneys’ fees for which they claimed entitlement by provisions of Tex.Rev.Civ.Stat. Ann. art. 1269m, “Firemen’s and Policemen’s Civil Service in cities over 10,000”, § 18, “Appeal to district court”, effective August 29, 1977. From this judgment appellants perfected joint appeal to this court.

Judgment reversed, with judgment rendered that both officers be reinstated as members of the police department during the periods of suspensions, but for no other relief.

At request of the appealing officers, the trial court filed findings of fact and conclusions of law. After these were filed there was no request that the court file any additional findings or conclusions. In the findings of the trial court there was nothing relative to the amount of reasonable attorneys’ fees for representation of either appellant in the prosecution of their suit or their appeal, or indicating what attorneys’ fees would have been granted appellants had the judgment decreed been one of reinstatement. None of appellants’ points of error complained of the want of such finding by the trial court or because of failure by the trial court to award such attorneys’ fees. This court has no authority to award either appellant any attorney’s fee, and there being no appropriate complaint by point of error, no predicate was laid for a remand to the trial court for a new trial of the issues on attorneys’ fees in the event we should reverse the judgment of the trial court.

We consider the appeal apart from the matter of attorneys’ fees.

Appellants complain they were denied due process in the conduct of the hearing on December 8, 1977 before the Firemen’s and Policemen’s Civil Service Commission, in that there was inadequate notice of the hearing. We note that by the rules and regulations represented by all the litigants on the appeal to have application, that the last day to begin the civil service hearing in order to prevent the questions to be decided thereat from becoming moot (in that if not heard—or begun to be heard— by that time the suspensions would have been automatically vacated with appellants entitled to their back pay during the periods of suspensions). (There is some similarity of this situation to the requirements in criminal cases that they be called to trial by a certain date in order to prevent automatic dismissals.) At the hearing before the commission there was no motion for continuance filed, nor any request for recess of the hearing immediately after trial was begun to enable appellants to prepare. We fail to understand where one to be tried by proceedings such as those of the appellants before the commission should receive benefits to be claimed by assertion of right to timely notice as a part of due process of law relative to the prosecutorial proceedings without willingness to have the preservation of the prosecuting parties’ right to proceed at a later time. We overrule the appellants’ contentions predicated upon want of due process at the hearing before, the Firemen’s and Policemen’s Civil Service Commission.

Our reversal of the judgment of the court below (and it amounts also to a reversal of the judgment of the commission) is predicated upon a want of evidence of any kind which connects either appellant with the use of unnecessary force in accomplishing the arrest of Jerry Dean Cunniff on May 14, 1977, or with any other of the charges brought against the officers because of anything done on that occasion.

The investigation record by the Internal Affairs Division of the Police Department was completely prepared at the time it was presented to the Chief of Police. That official acted solely thereupon in ordering the suspensions. The Chief testified before the commission that he did not personally know the appellants and that the suspension actions taken against them were based solely upon the investigation record. Whether or not it was proper to consider it (or, indeed any part of the record made at the hearing before the commission) in view of applicability or inapplicability of Tex.Rev.Civ.Stat. Ann. art. 6252-13a, “Administrative Procedure and Texas Register Act”, effective August 29, 1977, (a matter we do not need to decide), the investigation record prepared by the Internal Affairs Division of the Police Department was admitted into evidence before the commission and considered as a proper part of its record for the limited purpose to show what it was upon which the Chief of Police relied to suspend the appellants from duty.

For any other purpose (either before the commission or, if at all, before the trial court) the contents of the investigation record constituted hearsay evidence merely, sufficing to prove nothing save that which was presented to the Chief of Police. It was in this aspect that the investigation record was received and made a part of the record by the commission; and, as a part of the record of the proceedings before the commission, received in evidence by the trial court. It could have proved before the trial court nothing other than what representations were made to the Chief of Police, and not the truth of any of the representations contained in the report.

Apart from what was contained in the investigation record there was no identification of either of the appellants as having been a person who was present to do anything on the night of May 14, 1977, at the scene where Jerry Dean Cunniff was arrested. Neither officer was present at the trial proceedings before the commission on December 8,1977, and, therefore, they were not available to be identified in person by any witness who testified at the hearing on December 8, 1977. No witness identified them by name or description. Both officers were present and testified upon the trial in District Court; but at the court trial there was no witness who was present at the scene where Cunniff was arrested in May of 1977. There was no competent evidence proving identity of either officer as having been connected with any event which transpired on May 14, 1977, by examination of either the commission hearing record or in the record of the proceedings in the trial court. In the introduction of testimony in the trial court the events of May 14, 1977 were wholly ignored by every witness who testified. There the entire record made had relation solely to the matter of the notice of suspension given appellants, and about the want of notice in time to prepare for trial for the commission hearing on December 8, 1977. Plainly displayed, was that the appellants, and each of them, were suspended from duty, with loss of pay, but there was no competent evidence whatever to demonstrate any justification therefor.

Therefore, there was error in the trial court’s judgment; its judgment should have been one which vacated the suspension and restored the officers as having been on duty during the period they were shown to have been suspended, with pay made to them in restitution to that withheld for the respective period of suspension, and for some attorneys fees.

We reverse the judgment rendered below, and, in its place and stead here render judgment to read, as follows: The orders of suspension dated November 9, 1977, made by A. J. Brown, Chief of Police, City of Fort Worth, Texas, made effective that date, and suspending through Monday, November 14,1977 as applied to R. C. Sutherland, and suspending through Saturday, November 19, 1977 as applied to B. G. Blanchard, are set aside and held for naught; and the City of Fort Worth is ordered and directed to pay that amount to R. C. Sutherland which would represent the monetary remuneration for his services as a police officer on active duty for the five day period in November of 1977 during which he was suspended, and is ordered and directed to pay that amount to B. G. Blanchard which would represent the monetary remuneration for his services as a police officer on active duty for the ten day period in November of 1977 during which he was suspended. Relief not specifically granted, as above stated, is denied, because no right thereto has been preserved.

All costs are adjudged against the City of Fort Worth, Texas, and against the Firemen’s and Policemen’s Civil Service Commission of the City of Fort Worth, and A. J. Brown, Chief of Police of the City of Fort Worth, Texas.


author: JAMES, Justice.

text:
    JOHNS-MANVILLE SALES CORPORATION, Appellant, v. R. J. REAGAN CO., INC., Appellee.
    No. 5899.
    Court of Civil Appeals of Texas, Waco.
    Jan. 25, 1979.
    Rehearing Denied March 1, 1979.
    Rex D. Davis, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellant.
    David E. Cherry, Pakis, Cherry, Beard & Giotes, Inc., Waco, for appellee.
   OPINION

JAMES, Justice.

This is a breach of warranty and deceptive trade practice case. Plaintiff-Appellee R. J. Reagan Co., Inc., a roofing contractor, sued Defendant-Appellant Johns-Manville Sales Corporation for breach of express warranty, breach of implied warranties of merchantability and fitness for a particular purpose, and for violation of the Deceptive Trade Practices Consumer Protection Act, all arising out of the sale of roofing materials by Johns-Manville to Reagan, which Reagan used on a job at the Mexia State School.

This case was tried one time prior to the trial now appealed from, the first such trial having resulted in a mistrial due to the death in a juror’s family. Therefore, we will deal only with such pleadings and matters as are relevant to and bearing upon the trial now appealed from.

On November 25, 1976, Defendant Johns-Manville filed its Third Amended Original Answer which set up, in addition to a general denial, the following defensive matters: (1)that any loss or damage to Plaintiff was the result of misuse or abnormal or unintended use of Defendant’s product by Plaintiff; (2) that any loss or damage to Plaintiff was caused by the negligence of Plaintiff or third persons; (3) that any loss or damage was caused by an assumption of risk through the manner in which Plaintiff made use of Defendant’s product; (4) that if there were any warranties applicable in this case, they have been excluded by a course of dealing, course of performance, or usage of trade; and (5) if there was any breach of warranty by Defendant, that Defendant has attempted to comply in good faith as far as reasonable under the circumstances with any warranties that it may have made to Plaintiff; in other words, Defendant set up the defense of “bona fide error” as provided for in Section 17.50A(1), as amended effective May 23, 1977, Texas Business and Commerce Code.

Plaintiff filed special exceptions to all allegations of Defendant’s Third Amended Original Answer except as against the Defendant’s general denial; whereupon on May 20,1977, the trial court sustained all of said special exceptions and thereby struck all of Defendant’s Third Amended Original Answer except the general denial and the “bona fide error” defense hereinabove mentioned. The trial court withheld, “until a later date,” its ruling on the bona fide error defensive pleading. Moreover, the Defendant was “ordered to withdraw its pleadings to which Plaintiff has excepted or amend same to more specifically allege the matters complained of in Plaintiff’s Special Exceptions.”

Jury trial was scheduled for May 23, 1977, but Defendant filed a motion for continuance in view of the trial court’s action on the special exceptions, which motion the trial court granted and specially reset the case for trial for August 29, 1977.

Then on August 25, 1977, four days before trial date, Defendant filed its Fourth Amended Original Answer, setting up, in addition to the general denial, the following defenses, all being alleged with more particularity than in the previous pleading, to wit:

(1) Misuse in: (a) Plaintiff’s improper application of Defendant’s products to the roof decking, and (b) improper storage by Plaintiff of Defendant’s products prior to and during use.

(2) Plaintiff’s negligence in: (a) failure to properly apply Defendant’s products in a good and workmanlike manner; (b) applying the products when a reasonable person would have known the roof decking was not in proper condition; (c) failure to properly store the products; (d) failure to inspect the roof conditions prior to application of Defendant's products and (e) failure to properly construct or reconstruct the roof decking.

(3) That any loss or damage to Plaintiff was solely caused by the negligence of third persons in the failure of such third persons to (a) apply the decking in good and workmanlike manner, (b) to properly store the materials, and (c) to properly design the roofs in question.

(4) Any loss or damage to Plaintiff was caused by an assumption of the risk through the manner in which Plaintiff applied or stored Defendant’s products.

(5) Lastly, Defendant alleged the “bona fide error” defense again under Section 17.-50A(1), Tex.Bus. and Commerce Code, in similar language to that set out in Defendant’s Third Amended Original Answer as hereinabove pointed out.

Plaintiff objected to the filing of Defendant’s Fourth Amended Original Answer, contending surprise and that since it was filed only four days before trial date, Plaintiff could not be prepared to meet the defensive matters set up in said Defendant’s pleading.

On August 29, 1977, the date of trial setting, the trial court after hearing sustained Plaintiff’s Motion and thereby struck all of Defendant’s Fourth Answer, leaving Defendant with only a general denial. Thereupon, the Defendant filed its Second Motion for a Continuance of the case which the trial court overruled.

Trial was then had on August 29,1977, to a jury, which found in answer to special issues as follows:

(1) Defendant Johns-Manville engaged in deceptive trade practices (as those terms were defined in the charge) in connection with the sale, service, or warranty of the roofing materials in question.

(2) One or more of such deceptive trade practices was a producing cause of adverse effect upon Plaintiff Reagan.

(3) The roofing materials were not fit for the ordinary purposes for which such roofing materials are used.

(4) Such unfitness was a proximate cause of Plaintiff Reagan’s damages.

(5) Johns-Manville had reason to know that the roofing materials in question were to be used for the purpose of roofing the chapel and/or Second Building of Mexia State School.

(6) Plaintiff Reagan relied upon Defendant Johns-Manville’s skill and judgment to recommend, select, or furnish suitable roofing materials for the roofing of the two buildings in question.

(7) That said roofing materials were not fit for the particular purpose of roofing the two buildings in question.

(8) Such unfitness was a proximate cause of Reagan’s damages.

(9) Johns-Manville made affirmations of fact or promises to Reagan relating to the roofing materials in question.

(10) Which affirmations of fact and promises were a reason for Reagan purchasing the roofing materials from Johns-Man-ville.

(11) Such roofing materials sold to Reagan failed to comply with the affirmations of fact or promises made by Johns-Manville.

(12) Which failure was a proximate cause of Reagan’s damages.

(13) Reagan notified Johns-Manville within a reasonable time after Reagan discovered the problems which were experienced with the roofing materials in question.

(14) Reagan’s damages amounted to $5981.35.

(15) Reasonable attorney’s fees for services rendered in the trial court amounted to $3000.00;

(16) attorney’s fees if appealed to the Court of Civil Appeals would be an additional $400.00, and

(17) attorney’s fees if appealed to the Supreme Court of Texas would be an additional $250.00.

Pursuant to and in harmony with the jury verdict, the trial court entered judgment in favor of Plaintiff Reagan against Defendant Johns-Manville for treble actual damages in the (trebled) amount of $17,-944.05, and for attorney’s fees in the amount of $3,650.00, subject to appropriate remittiturs in the absence of legal services being required in the appellate courts.

From this judgment Defendant Johns-Manville appeals upon thirty-eight (38) points of error. We believe and hold that there is error in the trial of this case which requires that it be reversed and remanded for a retrial on the merits; therefore, we will discuss only those of Appellant’s points of error that we feel are necessary to show our reasons for such reversal and those that may be of some benefit in a retrial of the case.

As stated above, after the trial court sustained special exceptions to Defendant’s Third Amended Original Answer, and had refused Defendant’s filing of its Fourth Amended Original Answer, the Defendant went to trial with no pleadings except its general denial.

Before the evidence commenced, the trial court announced that the Defendant nevertheless would be permitted to present evidence bearing upon the matters pleaded in Defendant’s stricken pleadings. During the trial, Defendant offered at least some evidence of probative value bearing upon all of the matters alleged in the stricken pleadings contained in Defendant’s Fourth Amended Original Answer, all without objection from the Plaintiff. At or near the conclusion of the evidence, Defendant tendered for filing a Trial Amendment which essentially pleaded the same matters which had been set up in Defendant’s Fourth Amended Original Answer, to which filing Plaintiff objected; whereupon the trial court sustained Plaintiff’s objection and refused to permit the Defendant to file said Trial Amendment.

Then prior to the submission of the court’s charge to the jury, the Defendant requested in writing special issues, instructions, and definitions bearing upon the matters alleged in the stricken pleadings, which requested special issues, instructions, and definitions the trial court refused to submit to the jury.

Appellant in effect first asserts that the trial court abused its discretion in striking Defendant-Appellant’s Fourth Amended Original Answer, and in overruling Defendant’s Second Motion for Continuance, and thereby putting Appellant to trial with only a general denial. We overrule these contentions. The trial court sustained the special exceptions to Defendant-Appellant’s Third Amended Original Answer on May 20,1977, gave the Appellant an opportunity to amend its pleadings, and reset the trial of the case to August 29, 1977, more than three months thence. Defendant-Appellant therefore had more than ample time in which to amend its pleadings, but did not do so until August 25, 1977, only four days before the date the case had been theretofore specially set for trial. Here the trial court was justified in believing Plaintiff’s contention that he was surprised by Defendant’s new pleadings belatedly and unexplainedly filed, and therefore we cannot say the trial court abused its discretion in refusing to permit Defendant to file these new pleadings, and in overruling Defendant’s Second Motion for continuance. See Rule 63, Texas Rules of Civil Procedure; McHone v. McHone (Tex.Civ.App., Waco 1969) 449 S.W.2d 488, writ dismissed; Plata v. Guzman (Tex.Civ.App., Corpus Christi 1978) 571 S.W.2d 408, no writ.

As stated hereinabove, Defendant-Appellant was permitted to introduce evidence bearing upon the defensive matters pleaded by Defendant in its Fourth Amended Original Answer, all without objection from Plaintiff-Appellee. At the conclusion of the evidence, Defendant tendered for filing a Trial Amendment embodying substantially the same defensive matters alleged in its stricken Fourth Amended Original Answer, the filing of which Trial Amendment was refused by the trial court.

Appellant asserts error because of the trial court’s refusal to permit the filing of such Trial Amendment. We sustain this contention. Rule 67, Texas Rules of Civil Procedure.

Moreover, Defendant-Appellant complains of the trial court’s refusal to submit to the jury seven of the eleven requested special issues proposed and submitted in writing to the trial court. All seven of such requested special issues dealt with matters encompassed in Defendant’s Trial Amendment, and there is some probative evidence in the record to warrant the submission of such issues. Said requested special issues so refused by the trial court to be submitted to the jury, may be summarized and paraphrased as follows:

(1) Did Plaintiff, its agents and employees improperly store Defendant’s products during their use in question?

(2) Was such improper storage a misuse of Defendant’s products? (Conditioned upon an affirmative answer to No. 1 above).

(3) Was such misuse a proximate cause of the occurrence in question? (Also conditionally submitted).

(7) Did Plaintiff, its agents or employees fail to inspect the condition of the roofs of the buildings in question prior to the application of Defendant’s products?

(8) Was such failure negligence? (Conditioned upon an affirmative answer to No. 7 above).

(9) Was such negligence a proximate cause of the occurrence in question? (Also conditionally submitted).

(11) What percentage of the defect or misuse that caused the occurrence in question do you find to be attributable to each of the parties found by you to have sold defective products or misused those products?

R. J. Reagan Co._%.
Johns-Manville_%.

This issue was conditionally submitted upon the jury’s finding that the acts or omissions of more than one person was a producing or proximate cause of the occurrence in question).

In view of the fact that there is evidence of probative value in the record to raise the above seven requested special issues, and that answers by the jury to such issues would have a bearing upon and relevancy to the defenses sought to be pleaded by Defendant-Appellant in its trial amendment, we are of the opinion and hold that the trial court erred in refusing to permit Defendant to file its trial amendment and in refusing to submit to the jury the seven requested special issues hereinabove summarized. See Signal Oil and Gas Co. v. Universal Oil Products (Tex.1978) 572 S.W.2d 320; Nobility Homes of Texas v. Shivers (Tex.1977) 557 S.W.2d 77; General Motors Corp. v. Hopkins (Tex.1977) 548 S.W.2d 344.

We express no opinion concerning the requested instructions and definitions tendered by Defendant-Appellant to the trial court for submission to the jury, because the propriety vel non of such instructions and definitions will depend upon how the evidence unfolds in a retrial of the case.

Finally, Defendant-Appellant pleaded in its Fourth Amended Original Answer, and in its tendered Trial Amendment, the defense of “bona fide error.” Additionally, Defendant requested the submission of a special issue, in effect asking the jury if they find that “such conduct, if any, was the result of a bona fide error on the part of the Defendant Johns-Manville.” This was accompanied by a requested definition of “bona fide error.”

Appellant now complains of the trial court’s refusal to submit such requested special issue and definition of “bona fide error.” We overrule this contention.

Section 17.50A(1), Texas Business and Commerce Code, as amended effective May 23, 1977, provides that the defendant in a suit by an individual plaintiff under Section 17.50 of the Texas Deceptive Trades Practices Act is entitled to assert the defense of bona fide error. Section 17.50(a)(2) provides for a consumer’s cause of action under breach of express or implied warranty. Prior to May 23, 1977, the defense of bona fide error did not exist in such suits by an individual plaintiff, but such defense of bona fide error existed only in class action suits. See Sections 17.51 “Class Actions”,' now repealed effective May 23, 1977, and 17.54, “Damages: Defense”, now repealed effective May 23, 1977. See Crawford Chevrolet, Inc. v. McLarty (Tex.Civ.App., Amarillo 1975) 519 S.W.2d 656, no writ.

In the case at bar, the transactions which are the subject matter of this litigation took place in 1974 and 1975, long before the “bona fide error” defense came into being on May 23,1977. Since the Plaintiff-Appel-lee’s cause of action arose prior to the advent of the “bona fide error” defense, the Defendant-Appellant is not entitled to assert such defense in the case at bar. To permit Defendant-Appellant to assert such defense would be giving retroactive application to Section 17.50A(1), which would violate Article I, Section 16, of the Texas Constitution. See Merchants Fast Motor Lines, Inc. v. Railroad Commission of Texas (Tex.1978) 573 S.W.2d 502 and the cases cited therein on pages 504-and 505; American Surety Co. of New York v. Axtell Co. (Com. App.1931) 120 Tex. 166, 36 S.W.2d 715, 720, opinion approved; International Security Life Ins. Co. v. Maas (Tex.Civ.App., Houston 1st 1970) 458 S.W.2d 484, 490, NRE; Cooper v. Texas Board of Medical Examiners (Tex.Civ.App., El Paso 1972) 489 S.W.2d 129, 131, NRE.

But Appellant argues that Section 17.-50A(1) is procedural or remedial in nature, and that since the case was tried after May 23, 1977, the constitutional prohibition against retroactivity does not apply. In other words, Appellant says his right to assert the bona fide error defense came into being immediately upon the effective date of the statute, to wit, May 23, 1977. We do not agree.

We hold that the defense of “bona fide error” provided in said statute affects vested rights and substantive law insofar as Appellant and Appellee are concerned, and since the Plaintiff’s cause of action accrued prior to the creation of the statutory defense, that such defense of “bona fide error” is not available to Defendant-Appellant in this case.

For the reasons hereinabove stated, we reverse and remand the cause for retrial on the merits.

REVERSED AND REMANDED.


author: COULSON, Justice.

text:
    Richard A. FRY d/b/a American Executive Realty, Appellant, v. Pamela GUILLOTE, Appellee.
    No. 1920.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1979.
    Rehearing Denied Feb. 21, 1979.

      Ralph Hutchmacher, Dellinger, Lawrence & Baca, Houston, for appellant.
    Robert E. Price, Lockett, Embry & Can-tey, Houston, for appellee.
   COULSON, Justice.

Appellant Richard A. Fry appeals from a judgment in favor of appellee Pamela Guil-lote after a non-jury trial in a suit to recover commissions related to the sale of real estate. We affirm.

In July of 1974 appellee, a licensed real estate sales person, was employed as a real estate agent by American Executive Realty. During her employment appellee procured several listings for the sale of homes by American Executive Realty. Four of the listings were sold by American Executive Realty after appellee had terminated her employment and gone to work for another real estate broker. In August of 1975 appellee filed this suit seeking to obtain her alleged share of the commissions received by American Executive Realty on the sale of these four properties. After a non-jury trial the trial judge granted judgment in favor of appellee in the amount of $2,184.12. Appellant appeals from that judgment.

Appellant’s first point of error complains that the trial court erred in refusing on two separate occasions to allow him to amend his pleadings with a trial amendment. Shortly after the trial had begun, appellant attempted to file an amended answer alleging, under oath, that American Executive Realty was an assumed name for American Executive, Inc., a Texas corporation, and that Richard A. Fry was an employee only of American Executive Realty or American Executive, Inc. and was therefore not liable as an individual for the acts of his employer. The trial court refused to allow such trial amendments to be filed. Appellant’s first point of error alleges that the judge erred in refusing to allow this trial amendment.

We note at the outset that the matter of whether to permit the filing of a trial amendment is addressed to the sound discretion of the trial court and his order will not be disturbed unless it clearly appears that he abused his discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948). In this case appellant attempted, after trial of the case had begun, to file a trial amendment in effect denying that ap-pellee had sued the proper defendant. One authority has amassed some of the matters to be considered in determining whether the trial court properly exercised his discretion in granting or denying a trial amendment:

“In the matter of allowing amendments pending the trial in order to meet the proof, the trial judge should allow the amendment if it appears that the new matter contained in it was not known to the party seeking to file the same or, by the exercise of reasonable diligence, he could not have ascertained the same when his former pleadings were filed, and that it does not involve new issues or inject into the case new matters which would interfere with the orderly progress of the court’s docket or work injustice upon other parties. However, . . . when it appears that the new matter was known to the party seeking to file the amendment, or to his counsel, or, by exercising reasonable diligence, it could have been known . at such time as would have enabled them to include it in his former pleadings, of if it injects new matter . . . the request should be denied.”

2 R. McDonald, Texas Civil Practice § 8.04 (1970). See also Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1951); Coffey v. Fort Worth and Denver Railway Co., 285 S.W.2d 453 (Tex.Civ. App.—Eastland 1956, no writ).

Appellee’s petition in this case was filed in August of 1975. Appellant’s answer was filed in October of 1975 and appellant’s answers to appellee’s interrogatories were filed in December of 1975. Trial of the cause occurred on January 18, 1978, the date on which appellant attempted to amend his pleadings to assert that he was not liable in the capacity in which he was sued. Appellant made no showing of any reason why this matter could not have been pled in the two years between the filing of his original answer and the day of trial. Certainly he made no contention that he did not have knowledge at all relevant times that American Executive Realty was an assumed name for the corporation, and not for himself as an individual. To allow such amendment at trial would “interfere with the orderly progress of the court’s docket” by requiring appellee to replead her cause against a new defendant not a party to the suit as originally filed. Thus we find that the trial court did not abuse its discretion in refusing to allow appellant to file his trial amendment after trial had begun.

Appellant cites the case of Rose v. Shearer, 431 S.W.2d 939 (Tex.Civ.App.— San Antonio 1968, no writ) for the contention that Rule 67, Tex.R.Civ.P., required the allowance of his trial amendment at the close of the evidence. Rule 67 provides for amendments to conform to issues tried by consent. In this case the evidence as to the ownership of American Executive Realty was not tried by consent but was consistently objected to by appellee. Rule 67 therefore does not apply. Appellant’s first point of error is overruled.

Appellant’s second point of error contends that the trial court erred in holding that appellee was entitled to receive a 25% commission on listings obtained by her for American Executive Realty but not sold until after she had left that agency. Appel-lee introduced into evidence a contract between American Executive Realty and one Katherine Woodward. Appellee stated that she did not have a copy of her own contract nor did American Executive Realty, but that it was an exact duplicate of the contract executed by Katherine Woodward. This evidence was admitted without objection and therefore is sufficient to establish the contents of the contract at issue. 2 C. McCormick & R. Ray, Texas Evidence § 1579 (2d ed. 1956). See also Schroeder v. Galveston County Water C & I Dist. No. 1, 385 S.W.2d 629, 631 (Tex.Civ.App.—Houston 1965, no writ); Busby v. First Nat. Bank, 68 S.W.2d 828 (Tex.Civ.App.—Fort Worth 1934, writ dism’d).

By the terms of the contract the real estate agent was to receive 25% of the total commission received by American Executive Realty from the sale of any property for which that agent was responsible for procuring the listing. There is no language in the contract which limits the agent’s right to receive such commissions only to those listings sold while the listing agent was an employee of American Executive Realty. The only condition to the receipt of the 25% commission is that the agent have procured the listing. Appellee undisputedly did procure the listings for the four properties in question here.

Appellant contends that the custom in the industry is that a listing sales person would receive no commission unless he were employed by the listing broker at the time of closing on that listing. He argues that the trial court erred in finding that the contract between appellant and appellee abrogated this “usual custom” in the industry. Appellant claims that the trial judge took judicial notice of this custom. The trial judge’s statement did not take notice of such a custom existing independently of any contract. He stated only that he was aware of such a practice among realtors in the area if it was agreed to by the listing agent. Therefore the judge’s statement does not establish that this custom governs the transaction here, where there was no such agreement in the contract.

The only evidence presented of such a custom was that brought out by the appellant Richard Fry in his testimony. We do not believe this is sufficient to establish that this custom was so established and well known in the industry as to automatically become an implied part of any contract between a real estate broker and his agents. In order to establish a custom and usage that would be included in a contract without being expressed therein it is necessary to show that it is a custom generally known to the parties or that the parties contracted with reference thereto. Flagg Realtors, Inc. v. Harvel, 509 S.W.2d 885, 889 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.). We do not believe that appellant’s testimony about there being such a well known custom is sufficient to support this contention. Appellee testified to the contrary that she did not become aware of this custom until after she had left her employment with American Executive Realty and tried to collect her commissions. We find that the judge did not err in enforcing the contract according to its plain language. Appellant’s second point of error is also overruled and the judgment of the trial court is affirmed.

Affirmed.

      . This figure represents twenty-five percent of the total sales commissions earned by American Executive Realty of $8,736.47 on the sale of the four homes for which appellee obtained the listings.


author: SALAZAR, Justice.

text:
    DRG FINANCIAL CORPORATION, Appellant, v. Kermit D. WADE et al., Appellees.
    No. A1952.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1979.

      Eugene J. Pitman, Lawrence Russo, III, DeLange, Hudspeth, Pitman & Katz, Houston, for appellant.
    Franklin R. Navarro, Houston, for appel-lees.
   SALAZAR, Justice.

Cross-defendant, DRG Financial Corporation, has appealed from an order of the trial court overruling its plea of privilege to be sued in the county where the land at issue was located. We hold that the principal right and relief sought by appel-lees in the lower court was to remove cloud from title and therefore, subdivision 14 of the Texas venue statute, Tex.Rev.Civ.Stat. Ann. art. 1995 (1964) mandates that the cause of action pertaining to appellant DRG Financial Corporation be removed to Galveston County where the land lies. The judgment of the trial court is reversed and rendered that the venue as to the cause of action against appellant DRG Financial Corporation be transferred to Galveston County, Texas.

Appellant, DRG Financial Corporation, was first made a party to the lawsuit filed in Harris County in the first amended cross-petition and second amended cross-petition filed by appellees and cross-plaintiffs, Kermit D. Wade and Karl Richard Bradley, II, individually and Dickinson Apartments, LTD., a limited partnership. The cross-defendants named in the cross-petitions were Allied Bancshares, Inc., Allied Bank of Texas, Allied Seabrook Bank, DRG Financial Corporation (appellant), Larry Strand individually, Jack Summers individually, Jim B. Hargrove individually, E. R. Covel individually, James H. Albert individually, D. Michael Dalton individually, and Steven A. Howard and Paul Koster both individually and as partners in Dickinson Oaks Apartments, a partnership. In response to the cross-petitions, cross-defendant DRG Financial Corporation filed a plea of privilege to be sued in Galveston County where the land at issue was located. It was overruled by the trial court.

Under subdivision 14 of Tex.Rev.Civ. Stat.Ann., art. 1995 (1964), the two venue facts to be proved are (1) that the suit is one to recover land or damages thereto, or to remove encumbrances upon title to land, or to quiet title to land, and (2) that the land involved is situated in the county where suit is brought. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945); Atlantic Richfield Company v. Trull, 559 S.W.2d 676, 679 (Tex.Civ.App.—Corpus Christi 1977, writ dism'd); Fannin Bank v. Johnson, 432 S.W.2d 138, 140 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ dism’d).

There is no dispute that the land is located in Galveston County. The question we must determine here is whether or not this is a suit to recover title to land, or to remove encumbrances upon title to land, or to quiet title to land. We refer to the allegations in the pleadings and evidence to determine the true nature and purposes of the lawsuit. Peoples National Bank of Tyler v. Cranek, 557 S.W.2d 330, 332 (Tex.Civ. App.—Houston [1st Dist.] 1977, writ dism’d); Continental Oil Company v. Anderson, 405 S.W.2d 622, 626 (Tex.Civ.App.— Eastland 1966, writ dism’d).

It is apparent from the pleadings and evidence that appellees have failed to meet the burden that there lies no issue as to title. Continental Oil Company v. Anderson, supra at 626. While the appellees’ cross-petitions seek damages as a result of the alleged fraud and conspiracy by cross-defendants in breaching their alleged commitments to renew notes executed by cross-plaintiffs and secured by a deed of trust on the property in Galveston County, in Paragraph VI of cross-plaintiffs’ second amended cross-petition, appellees specifically state their claim to fee simple title to the aforesaid Galveston County property.

Cross-defendant and Substitute Trustee, D. Michael Dalton foreclosed on the property and executed a Substitute Trustee’s Deed which was duly recorded in the Deed Records of Galveston County, Texas, as indicated by Exhibit “C” in the second amended cross-petition. Cross-defendant Banks purchased the property at the purported foreclosure sale. Any interest appel-lees might now have in the property depends upon a title question and a determination of whether or not the alleged fraudulent and conspiratorial acts of the cross-defendants led to the execution of this deed. Appellant, DRG Financial Corporation, later issued a mortgage covering the property to cross-defendants Steven A. Howard, Paul Koster, and their partnership, Dickinson Oaks Apartments, all of whom had purchased the property from cross-defendant Banks.

Any deed, contract, or judgment or other instrument not void on its face which purports to convey any interest in or makes any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner. Best Investment Company v. Parkhill, 429 S.W.2d 531, 534 (Tex.Civ.App. —Corpus Christi 1968, no writ). Where one has parted with land or an interest therein, which he seeks to recover by attacking the instrument under which he lost title, his lawsuit is one for the recovery of land and if that instrument is filed of record and for that reason would cloud his title assuming one could prove its validity, his lawsuit would be one to remove an encumbrance upon title to the land. Leonard v. W. H. Carter, 389 S.W.2d 147 (Tex.Civ.App.—Fort Worth 1965, writ dism’d); Galindo v. Garcia, 222 S.W.2d 477, 479 (Tex.Civ.App.—San Antonio 1949, no writ). Subdivision 14 applies where a party has alleged facts which, if established at trial, would entitle him to have a property interest in lands retrans-ferred to him, O. P. Leonard v. W. H. Carter, supra at 149, or where removal of a cloud upon title is requisite to establishing their rights under the facts of the case. Wallace Investments, Inc. v. H. W. Blackstock, 384 S.W.2d 910, 912 (Tex.Civ.App.— Houston 1964, no writ).

The allegations in the cross-petitions of fraud and conspiracy and the damages resulting therefrom do not negate the fact that this lawsuit is principally one to cancel deeds thereby removing cloud from title and is clearly an action involving land within the meaning of subdivision 14 fixing venue in the county where the land lies. Dorfman Development Company v. American Commonwealth Development Company, 523 S.W.2d 268, 270 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). Where the primary purpose of the lawsuit is to remove an encumbrance from title to land as is demonstrated here, the fact that additional relief is sought does not preclude the mandatory application of subdivision 14. Dorf-man Development Company v. American Commonwealth Development Company, supra at 270; Best Investment Company v. Parkhill, supra at 535.

The mandatory and controlling effect of subdivision 14 extends to any suit in which it appears either from the pleadings or proof that the real controlling issue is a question of title to land or an interest therein regardless of the form of the action or the relief prayed for. Hawkins v. Gilger, 399 S.W.2d 203, 210 (Tex.Civ.App.—Houston 1966, writ dism’d). Subdivision 14 will prevail over other merely permissive venue provisions to transfer the suit to the county where the land is situated. Landeau v. Burke Investment Company, 163 Tex. 562, 358 S.W.2d 553, 554 (1962); Scott v. Whittaker Pipeline Construction, Inc., 517 S.W.2d 406, 408 (Tex.Civ.App.—Austin 1974, no writ). Therefore, any policy considerations of joinder to avoid multiplicity of actions have no application here. Fetherson v. State, 146 S.W.2d 1078, 1079 (Tex.Civ.App.—Beaumont 1940, writ ref’d).

It is our view that appellees’ case, as made by their pleadings, is not solely an action for fraud and conspiracy. The true nature of the suit is one to remove cloud from title. The fact the original cause of action was filed in Harris County does not preclude nor estop appellant in response to the cross-petitions from urging that proper venue lay in Galveston County.

Furthermore, appellant did not file any pleadings which would effect a waiver of its right to file for a change of venue. Appellant observed the due order of pleading by filing its plea of privilege before its answer. Empire Life Insurance Company of America v. State of Texas, 492 S.W.2d 366, 367-68 (Tex.Civ.App.—Austin 1973, no writ); Texas Securities Corporation v. Peters, 463 S.W.2d 263, 264 (Tex.Civ. App.—Fort Worth 1971, no writ). It is further the position of this Court that the filing of the original petitions by both parties which were later consolidated did not work an estoppel on a change of venue with respect to appellant, DRG Financial Corporation.

Appellees’ brief cites Jozwiak v. Jozwiak, 476 S.W.2d 857 (Tex.Civ.App. — Houston [14th Dist.] 1972, no writ) for the proposition that subdivision 14 does not absolutely require an action to cancel deeds and remove cloud from title be brought in the court where the land is. However, Jozwiak holds that subdivision 14 can be waived when no plea of privilege invoking this provision is filed as was the case in Jozwiak. We do not find appellees’ proposition controlling. Appellees also cited Pan American Sign Company v. J. B. Hotel Company, 403 S.W.2d 548 (Tex.Civ.App.—Dallas 1966, no writ) which is distinguishable on the facts from the present case in that Pan American involved an attempt to satisfy a default judgment and alleged a fraudulent transfer of assets between creditors which consisted of two promissory notes secured by a deed of trust lien and a vendor’s lien on property in Webb County, where appellant urged venue lay. The Dallas court held that subdivision 14 did not apply.

Reversed and rendered that the cause of action pertaining to appellant DRG Financial Corporation be transferred to Galveston County, Texas.


author: MILLER, Justice.

text:
    David KINSEY, Appellant, v. NORTHERN INSURANCE COMPANY OF NEW YORK, Appellee.
    No. A1963.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1979.
    Rehearing Denied Feb. 21, 1979.

      James W. Bradford, Angleton, for appellant.
    Andrew Gass, David C. Cobb, Law Office of Perry Archer, Houston, for appellee.
   MILLER, Justice.

This is an appeal from a dismissal of a suit to enforce a compromise settlement and judgment rendered pursuant to the settlement.

Appellant filed a claim with the Industrial Accident Board (IAB) for a work-related injury which he had sustained on October 10, 1970. Dissatisfied with the outcome of that proceeding, and in a timely manner, he filed suit to set aside the award of the IAB in the district court of Brazoria County, Texas. On March 17, 1972, the parties entered into a compromise settlement whereby an agreed judgment was rendered in favor of the appellant, setting aside the IAB award and granting him the monetary sum of $6,000.00. Further, as a part of the agreed judgment, the appellee agreed to provide necessary future medical treatment and other related services incurred within two years from the date of judgment. During that two year period, appellant made a request for further medical treatment which was refused by the appellee. Appellant then filed suit in district court on the agreed judgment alleging that appellee’s refusal to provide the requested service was wrongful and in fraud of his rights. Appel-lee answered the suit and, among other pleadings, prayed that the suit be “abated” due to the appellant’s failure to comply with the “exclusive remedy clause” of the Worker’s Compensation Act, Tex.Rev.Civ. Stat.Ann. art. 8306 § 3 (1967), which is a condition precedent to the district court’s jurisdiction. The plea was sustained and the suit dismissed. This appeal followed.

Appellant’s single contention on appeal is that the trial court erred in dismissing the suit as it had jurisdiction of the case under the facts alleged in the petition. He focuses his supporting argument upon the theory that fraud and other intentional wrongdoings by the insurance carrier can amount to new and independent common law torts which are beyond the scope of the Worker’s Compensation Act and consequently render the limitations of the Act’s exclusive remedy provisions inapplicable. Appellant argues that his suit is just such an independent common law tort and lies with the jurisdiction of the district court, not the IAB.

It is premature to consider whether the appellant can recover on an intentional, independent tort theory. The rules allow a pleading in the alternative, and further, if one independent ground would be sufficient, the pleading is not made insufficient by the insufficiency of the other ground. Tex.R.Civ.P. 48. As long as the pleader sets forth the facts upon which the plaintiff’s right to sue is based, and upon which the defendant’s duty has arisen, coupled with the facts which constitute the latter’s wrong, the pleading will be held to state a cause of action as required. Tex.R.Civ.P. 45; Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707 (1901). The proper method to attack a pleading for the failure to state a cause of action maintainable at law is through the use of a special exception. Tex.R.Civ.P. 90. That point was never reached in this case as the dismissal was exclusively based on failure to comply with Tex.Rev.Civ.Stat.Ann. art. 8306 § 3. What the claimant could or would have pled and proved was not before the trial court, nor therefore, this court.

The question before us is whether the district court had jurisdiction of this suit. If the court had jurisdiction of the parties and the subject matter, it had the power to hear and determine the case. Texas Employers Insurance Association v. Ezell, 14 S.W.2d 1018 (Tex.Com.App.1929, opinion adopted). There is no question but that the district court had full jurisdiction of the parties.

Appellant’s original petition, considering all reasonable intendments of the pleader, Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.1963), is a suit on the wrongful refusal of the appellee to comply with the terms of the agreed judgment. The suit is not now an original claim for the compensation of a work-related injury. The original claim for injury was finally litigated and the subject matter of the suit now before us is the right of the appellant to seek damages for failure of appellee to pay for necessary medical treatment under the agreed judgment of March 17, 1972.

At the time the agreed judgment was rendered, neither the Worker’s Compensation statutes nor the law generally, prohibited the parties from making any compromise and settlement of their suit. Texas Employers Insurance Association v. Ezell, supra. This the parties did. There is no contention that the parties lacked the power to enter into such agreement. Judgment by consent is contractual in nature and may obligate the parties just as certainly as if the obligation had been imposed by the court after trial on the merits. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956). The appropriate forum to enforce the court judgment is not the IAB, which has no enforcement powers, even of its own awards. Tex.Rev.Civ.Stat.Ann. art. 8307, § 5a; Booth v. Texas Employers Insurance Association, 132 Tex. 237, 123 S.W.2d 322 (Com.App.1938, opinion adopted). Any matters not given exclusively to the Board by statute are within the jurisdiction and power of the court. Texas Employers Insurance Association v. Miller, 130 S.W.2d 893 (Tex.Civ.App.-Beaumont 1939) aff’d, 137 Tex. 449, 154 S.W.2d 450 (Com.App.1941, opinion adopted).

Appellee further argues that, art. 8307 § 5a notwithstanding, the Board is given exclusive jurisdiction under art. 8307 § 5 to render “successive awards” subsequent to final award or judgment. Under this provision, he argues, the appellant had not exhausted his remedies before the Board so that the suit was properly dismissed. He cites several cases upholding his contention including Paradissis v. Royal Indemnity Company, 507 S.W.2d 526 (Tex. 1974); Truck Insurance Exchange v. Seel bach, 161 Tex. 250, 339 S.W.2d 521 (1960); and Travelers Insurance Company v. Walkovak, 390 S.W.2d 75 (Tex.Civ.App.-Houston [1st Dist.] 1965, writ ref’d, n. r. e.). Appellee’s argument is not persuasive as these cases can be clearly distinguished from the case at hand as none of them involved an award or judgment which included future medical. In cases where the courts have been called upon to determine the effect of Board approved contractual compromise settlement agreements which expressly included liability or non-liability for future medical, they have impliedly upheld the agreements as binding on the parties, notwithstanding the “successive award” provision of art. 8307 § 5. Barnes v. Bituminous Casualty Corporation, 495 S.W.2d 5 (Tex.Civ.App.-Amarillo 1973, writ ref’d n. r. e.); Pearce v. Texas Employers Insurance Association, 403 S.W.2d 493 (Tex. Civ.App.-Dallas 1966, writ ref’d n. r. e.) per curiam, 412 S.W.2d 647 (Tex.1967).

We think the contractual consent judgment of a court which had jurisdiction has equal enforceability. The appellee had full opportunity to consider the protective provisions of the Worker’s Compensation Act and choose to waive them through agreement.

The order of the trial court sustaining the plea in abatement and dismissing the law suit is reversed and case remanded to trial court for further proceedings.

Reversed and remanded.