text:
    John E. HUFF et al., Appellants, v. William G. SPEER et al., Appellees.
    No. 16915.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 14, 1977.
    Rehearing Denied Aug. 11, 1977.

      Werner & Rusk, John C. Werner, Roger B. Williams, Houston, for appellants.
    George M. Flint, Jr., Houston, for appel-lees.
   COLEMAN, Chief Justice.

This is a judgment entered on a jury verdict in favor of William G. Speer and Hollis L. Bradley for the amount due on two promissory notes executed by John E. Huff and Frank D. Hastings.

The notes were executed pursuant to a contract for the sale of the assets of a company owned by Speer and Bradley. A security instrument was executed bearing the same date and is a part of the same •transaction. The appellants contend that the security agreement contains a condition precedent to be performed by the appellees prior to institution of a suit to collect on the note.

The last paragraph of each of the promissory notes reads:

“The payment of this note is secured by one or more security agreements and the terms of said security agreements are specifically incorporated herein as if fully set out.”

The security agreement provided that in case of default of any of the provisions of the agreement the

“Secured Party will have the right to exercise one of the following two alternatives and only one of the following two alternatives:
(a) Foreclose under this security agreement which will satisfy and discharge any liability of the Debtor to the Secured Party, its successors and assigns; or
(b) Sue the Debtor on the promissory note which the security agreement secures. In the event Secured Party elects to sue on said promissory note, Debtor shall be entitled to return of all shares pledged under this agreement prior to the institution of said lawsuit and the return of the pledged shares to the Debtor shall be a condition precedent to enforcing Debtor’s liability on said promissory note.”

The two notes were made payable to Acme Welding Supply, Inc., the corporation selling its assets. The assets were transferred to Welding Associates, Inc. and the notes were signed by this corporation and by Frank D. Hastings and John E. Huff. After the transaction was consummated Acme Welding Supply Co., Inc. voluntarily dissolved its corporate existence and the notes were transferred to the appellees. Welding Associates, Inc. then changed its corporate name to Acme Welding Supply Co., Inc.

Appellee brought suit against Welding Associates, Inc., Frank D. Hastings and John E. Huff on the promissory notes and recovered judgment. The corporation has not appealed.

Bradley and Speer filed this suit on the promissory notes without first returning the corporate stock pledged as security. In their motion for judgment non obstante veredicto Hastings and Huff called the court’s attention to the alleged fact that the plaintiffs totally failed to comply with the condition precedent to enforcing the defendants’ liability on the promissory notes through the filing of a lawsuit by reason of the plaintiffs’ failure to return the pledged securities to the defendants prior to the bringing of the suit. This contention has been presented to this court by a proper point of error.

Forfeitures are not favored. Courts are inclined to construe the provisions in a contract as covenants rather than as conditions. If the terms of a contract are fairly susceptible of an interpretation which will prevent a forfeiture, it will be so construed. Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566 (1949).

The language of the security agreement under consideration provides that the debtor shall be “entitled” to return of the shares pledged prior to the institution of the lawsuit, and further provides that the “return of the pledged shares to the debtors” shall be a condition precedent to enforcing debtors liability on the promissory notes. It does not provide that the return of the pledged shares “prior to the institution of said lawsuit” shall be a condition precedent to enforcing liability. The shares in question were tendered into the registry of the court after institution of the lawsuit. The record does not reflect that the defendants in the trial court suffered any loss because the plaintiffs tendered the shares of stock into the registry of the court instead of returning them to the owners directly. There is no evidence that injury to the defendants resulted from the failure to return the shares prior to the institution of the lawsuit.

The evidence reflects that the corporation had ceased to do business prior to the date on which the lawsuit was instituted. The defendants had received the assets of the corporation and their obligation to pay therefor was fully matured prior to the institution of the suit. The pledged shares were deposited in the registry of the court prior to the rendition of the judgment on the promissory notes. There is nothing in the record to show that the defendants sought and were refused possession of the shares of stock prior to the date on which judgment was rendered. Return of the pledged shares to the defendants was not a condition precedent to the institution of the lawsuit, rather it was a condition precedent to the enforcement of liability on said notes. Henshaw v. Texas Natural Resources Foundation, supra; 25 Tex.Jur.2d Forfeiture § 4.

The rule found in the Restatement of the Law of Contracts, Vol. 1, § 302, has been followed by the courts of Texas. Lesikar Construction Company v. Acoustex, Inc., 509 S.W.2d 877 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.).

The Restatement provision reads:

“A condition may be excused without other reason if its requirement
(a) will involve extreme forfeiture or penalty, and
(b) its existence or occurrence forms no essential part of the exchange for the promisor’s performance.”

The facts developed at the trial bring this case within the ambit of that rule.

The defendants plead as a defense to the suit on the note a failure of consideration resulting from the alleged failure of the plaintiffs to perform under the terms of employment contracts executed by the parties as required by the contract of sale. They also plead a material misrepresentation concerning the assets and liabilities of the corporation which induced the defendants to enter into the contract.

In answers to the issues submitted the jury found that: (1) Speer and Bradley did not misrepresent to Hastings and Huff the value of the assets and liabilities of Acme Welding Supply, Inc.; and (2) Speer and Bradley did not fail to perform under the employment contract. The defendants present both no evidence and insufficient evidence points relating to the jury’s findings in their brief. However, the defendants failed to properly preserve their insufficient evidence points in their motion for new trial. With respect to special issues one and six with which we are concerned the evidentiary assignments in the motion for new trial begin with the language:

“The court erred in overruling the defendants’ motion for judgment, or, alternatively, for judgment non obstante vere-dicto and in entering judgment in favor of plaintiff . . ..”

Assignments of error couched in the language quoted constitute no evidence points even though the assignment contains “great weight” or “insufficient evidence” language. McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.1964); M. O’Connor, Appealing Jury Finding, 12 Hous.L.Rev. 65 (1974). We may consider only the “no evidence” points of error.

The first special issue relates to the question of misrepresentation of the value of the assets and liabilities of Acme Welding Supply, Inc.

Acme Welding Supply, Inc. was in the business of selling various gases under compression in cylinders. A great volume of their business consisted in the resale of various gases purchased from the Linde Corporation contained in cylinders which they rented from the Linde Corporation. After Welding Associates, Inc. purchased the assets of Acme Welding Supply, Inc., Welding Associates, Inc. continued in this business and continued purchasing gas from Linde Corporation. In January, 1971, the Linde Corporation took an inventory of cylinders which had been rented to Welding Associates, Inc. and found that approximately 1,000 cylinders were missing. Welding Associates, Inc. was billed the sum of $40,000.00 by Linde Corporation for the lost cylinders.

Plaintiffs had presented to the defendants a balance sheet of the company in connection with the sale in 1968 which did not reflect any lost cylinders. The records of the Acme Corporation reflected the number of cylinders on which they paid rental to the Linde Corporation and the number of cylinders on which they were collecting rental from their customers. The correlation of the monthly statements reflected a shortage of some 25 to 30 cylinders from time to time. Huff testified that he didn’t know when the cylinders were lost. Bradley testified that they were lost over a 15 year period. Speer testified that in December of 1968 there was no shortage. He assumed that the cylinders were lost by Welding Associates, Inc. between December, 1969 and January, 1971. There is evidence in the record which supports the finding of the jury in answer to special issue number one. The point of error is denied.

The defendants plead failure of consideration as a defense to their liability on the notes. Special issue number six reads:

“Do you find from a preponderance of the evidence that William G. Speer and Hollis L. Bradley failed to perform the services that they agreed to perform under the terms and provisions of the employment contract dated December 3, 1968, during the period of time that they were being paid a salary pursuant to the terms of said employment contract?”

The jury answered this issue “we do not.” Predicated on special issue number six were certain special issues which the jury did not answer, inquiring whether William G. Speer and Hollis L. Bradley represented to Hastings and Huff that they would perform under the terms of the employment agreement with the intention to induce Frank D. Hastings and John E. Huff to execute the promissory notes in question; whether Hastings and Huff relied upon the agreement in executing the promissory notes in question; and whether the agreement to perform the services was material to Hastings and Huff in executing the promissory notes.

There is considerable testimony concerning the work which Speer and Bradley did under the employment contract. Both Speer and Bradley testified in effect that they did the work which they were instructed to do during the period of time that they were being paid. While there is contradictory evidence in the record, a no evidence point cannot be sustained.

Even had the jury found for the defendants on this issue the judgment would not have been affected by such a finding. The failure of consideration, if any, was partial only. The defendants failed to produce evidence to show the extent thereof, and failed to request issues to establish the loss suffered by reason thereof. There was, therefore, no basis in the record for a judgment in favor of the defendants. L. D. Powell Co. v. Sturgeon, 299 S.W. 274 (Tex.Civ.App.—Texarkana 1927, no writ history); Milner v. Boswell, 377 S.W.2d 763 (Tex.Civ.App.—Fort Worth 1964, no writ history).

A partial failure of consideration will not invalidate a contract and prevent recovery thereon, but is a defense pro tanto thereto. American Nat. Bank of Houston v. American Loan & Mortgage Co., 228 S.W. 169 (Tex.Com.App. Sec. A 1921, jdgmt. adopted).

The judgment is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Luther FLEMING, Appellant, v. BAYLOR UNIVERSITY MEDICAL CENTER, Appellee.
    No. 5676.
    Court of Civil Appeals of Texas, Waco.
    July 14, 1977.
    Rehearing Denied Aug. 18, 1977.

      J. Donald Bowen, Helm, Pletcher, Hogan & Burrow, Houston, James J. Hartnett, Dallas, for appellant.
    Catherine A. Gerhauser and James H. Holmes, III, Burford, Ryburn & Ford, Dallas, for appellee.
   HALL, Justice.

This is a common law negligence action. Luther Fleming was a patient in Baylor University Medical Center when oxygen supplied to his room for his treatment was caused to ignite and he was severely burned. He brought this action against the Medical Center for his damages. While the cause was awaiting trial Mr. Fleming died and his widow, Mrs. Rita H. Fleming, who is his sole heir and the community survivor, was substituted as plaintiff. The case proceeded to trial before a jury. At the close of plaintiff’s proof defendant Medical Center moved for an instructed verdict asserting there was no evidence that its negligence proximately caused the fire. The motion was granted and judgment was rendered that plaintiff take nothing. She appeals. We remand the case for trial.

The rules we must follow in deciding the propriety of the instructed verdict are well-established. If there is evidence in the record which would support findings that defendant failed to exercise ordinary care on the occasion in question and that this failure was a proximate cause of the accident which produced Mr. Fleming’s injuries, then the instructed verdict should not have been granted. Conversely, if there is no evidence that defendant acted negligently or no evidence that its negligence was a proximate cause of the accident, then the instructed verdict was proper. In testing these no evidence questions, we must consider only the evidence and inferences which tend to show negligent causation by defendant, and reject the rest.

Mr. Fleming was admitted to defendant Medical Center on October 21, 1973. The accident upon which this suit is based occurred five days later. Mr. Fleming was 68 years of age, obese, and suffering with pneumonia superimposed upon other illnesses when admitted. He was in a confused state upon admission, and there is direct evidence that he was still confused two days before the accident. He immediately established himself as a very uncooperative patient and remained so throughout the time in question. Because of prior surgery on his hips and his overall physical condition he was bedfast, and side rails were used to prevent his falling from the bed. He could sit in a chair, but it was necessary that he be helped to and from his bed to the chair. A part of his prescribed treatment was the continuous administration of oxygen through a face mask while he was in bed. The oxygen could be turned on and off only by hospital personnel. Mr. Fleming was a compulsive smoker of cigarettes. This and the use of oxygen posed a grave danger of fire and a continuous problem for the hospital personnel. All who worked with him (this included supervisors, registered nurses, practical nurses, nurses’ aides, and therapists) were constantly removing matches and cigarettes from his person and his room, and warning him of the great danger created by cigarette smoking in his room. They testified to his completely uncooperative, hostile attitude toward them when they removed his cigarettes and matches and continually warned him of the danger of smoking with continuous oxygen in use. They warned him that smoking “would set him on fire.” His response was, “I’m going to do it anyway.” This attitude prompted the staff to leave the door of his room open at all times so he could be watched. A “No Smoking” sign was posted on the door. When the door was open, the sign was visible to Mr. Fleming as he lay in bed. No one seemed certain how he got the cigarettes and matches. They were not supplied by plaintiff or her sister who were Mr. Fleming’s only visitors. He would call to people passing in the hallway and ask them to get him cigarettes. Once, an aide saw a man carry cigarettes into the room. It was known that hospital orderlies sometimes helped patients obtain personal needs. The hospital personnel regularly found matches and cigarettes on and in the drawer of a bedside table. Knowing that Mr. Fleming could not walk, they would sometimes simply remove the matches and cigarettes across the room to another table. At other times the prohibited articles were removed to the nurses’ station. One nurse testified that the problem was so bad that “the whole medication room [at the nurses’ station] was full of cigarettes. I mean, it looked like a smoke place, I mean, where you buy pipes, and it was full of packages and cigarettes and so forth that belonged to him.” Linda Del White, a nurse who was not assigned to Mr. Fleming’s area of the hospital, responded to a call for help from him on the day before the fire. She found him sitting in the chair “digging” in the bedside drawer. He finally secured a pack of cigarettes and matches from the drawer, but he was unable to light a cigarette, and needed someone to light it for him. She could see the oxygen equipment, warned him about smoking, and with the help of an aide took the cigarettes and matches from him and placed them in a table drawer across the room. Teresa Aguilar was the nurse in charge of Fleming’s ward during the 7:00 A.M. to 3:00 P.M. work shift. When she was giving Mr. Fleming some medication on the morning of October 25th, the bedside table drawer was slightly open and she saw two packs of matches and a pack of cigarettes in it. She removed them to the nurses’ station. Then, on October 26th, soon after lunch, Mr. Fleming told Mrs. Aguilar he wanted a cigarette. He was sitting in the chair and the oxygen was off. She brought him a cigarette and a package of matches from the nurses’ station, lit the cigarette for him, gave it to him, and walked out. Soon Mr. Fleming called the nurses’ station and Mrs. Aguilar returned to his room. He told her he was short of breath and wanted to nap. She testified that she took the cigarette from him, put it out in an ash tray on the over-bed table, put him to bed, turned the covers, raised the side rails, turned the oxygen on, put the mask on him, turned the lights off, walked out, and closed the door. She did not check the bedside table drawer before she left the room. In fact, she did not check the drawer at any time that day. A “very short time” after she left, the oxygen was ignited, Mr. Fleming’s bed and clothing caught fire, and he was severely burned. No one entered Mr. Fleming’s room during this short time span. The hospital administrator testified that immediately after the fire he found “a package of cigarettes on the floor with one cigarette left in it” and “also a package in the bedside cabinet.”

Neither plaintiff nor her sister knew that Mr. Fleming was smoking in the hospital. Plaintiff visited him twice daily, but she was never told about the constant problem posed by his securing cigarettes and matches, and his determination to smoke. If she had known, she could have hired around-the-clock nurse care for him as she did after he was burned. When she first learned after the fire that defendant claimed her husband was smoking in bed, she demanded to know why she hadn’t been told of the problem. Defendant’s nurse supervisor responded, “well, we’re like everything else, short of help here and just many things are not done.”

The evidence we have recited raises three grounds of negligence against defendant. First, if Mr. Fleming was attempting to light a cigarette at the time of the fire, then it and the match (and the cigarette found on the floor after the fire) came from the bedside table drawer. These and the pack of cigarettes found in the drawer immediately after the fire would have been found by nurse Aguilar if she had checked the drawer before she left the room just before the fire. She failed to do so. Second, if Mr. Fleming was not attempting to light a cigarette, and if no one entered his room between nurse Aguilar’s departure and the fire, then the ignition could have been caused only by Mrs. Aguilar’s failure to completely extinguish the cigarette she took from Mr. Fleming before she helped him to bed. Finally, without excuse other than “many things are not done,” defendant’s personnel failed to alert Mrs. Fleming to Mr. Fleming’s insistent smoking and the danger it created. Under the circumstances, the jury would have been entitled to believe that these failures, or any one of them, did not meet the standard of ordinary care.

The evidence we have set forth also shows that the fire in question was a foreseeable consequence that could and probably would result from the failure of defendant’s employees to keep smoking materials from Mr. Fleming, and remove lighted cigarettes from his room, while oxygen was in use.

The instructed verdict should not have been granted.

There is another problem in the case. On the trial, certain testimony by plaintiff was excluded over plaintiff’s protest on the ground that it violated article 3716, Vernon’s Tex.Civ.St., the so-called “Dead Man’s Statute.” Plaintiff says that on retrial the question will arise again, and she asks us to resolve it now.

The excluded testimony related to Mr. Fleming’s physical and mental condition immediately prior to his admission to the hospital, between the time of his admission and the time of the fire, and after he was burned. Primarily, it was designed to show that Mr. Fleming was in a confused state during the five days preceding the fire.

In its pertinent parts, article 3716 provides that in an action by or against the heirs or legal representatives of a decedent arising out of a transaction with the decedent neither party shall be allowed to testify against the other as to any transactions with the decedent “unless called to testify thereto by the opposite party.”

When a party by pre-trial procedures (like oral depositions, requests for admissions, and written interrogatories) initiates an inquiry and requires testimony by the other party relative to a transaction with a decedent which is covered by article 3716, the statute is waived by the inquiring party and on the trial the other party may testify fully regarding such transaction. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 809 (1956); Burris v. Levy, 302 S.W.2d 171, 174 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.); Denbo v. Butler, 523 S.W.2d 458, 460 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ hist.).

Prior to trial, defendant propounded written interrogatories to Mrs. Fleming directly related to Mr. Fleming’s mental and physical condition during his five-day stay in the hospital just preceding the fire, and his physical condition after the fire. Defendant thereby waived objections based upon article 3716 to plaintiff’s testimony about those facts.

The judgment is reversed.

This case is remanded for trial.


author: WALTER, Justice.

text:
    Elvis B. FAUBION, Appellant, v. Gladys A. CORDER et al., Appellees.
    No. 5042.
    Court of Civil Appeals of Texas, Eastland.
    July 14, 1977.
    Rehearing Denied Aug. 18, 1977.

      Gay & Latting, Joseph Latting, Austin, Geron B. Crumley, Lewis & Crumley, Lam-pasas, for appellant.
    Hammett & Cavness, J. V. Hammett, Lampasas, for appellees.
   WALTER, Justice.

This is a summary judgment case. Gladys A. Corder and Marguerite Christine Dillon filed suit against their brother, Elvis B. Faubion, seeking to cancel a deed dated March 18, 1975, executed by Elvis B. Fau-bion as independent executor of the estate of Beulah Faubion, deceased, and as successor trustee of the trust estate of A. B. Faubion, deceased, to himself and each plaintiff sought to recover an undivided Vs interest in 925V2 acres of land in Mills and Lampasas Counties. They also alleged the option to purchase the land which Elvis secured from his parents was unenforceable as the description of the property in the option was insufficient; the deed is void under Section 352 of the Texas Probate Code and Article 7425b-12 of the Texas Trust Act as constituting self-dealing by a fiduciary; their brother’s lease expired on June 30, 1975, following the death of their mother on October 19, 1974, and that for many years prior thereto the brother was in default in that he had failed to pay all the annual rent on the ranch; and, Elvis failed to exercise his option prior to midnight on June 30, 1975, the date on which the sisters contend the option expired.

All issues involved in the lawsuit except the issues concerning the summary judgment were severed.

The issues decided by the summary judgment were:

(A) the deed dated March 18, 1975, executed by the appellant as independent executor of the Estate of Beulah Faubion, deceased, and as trustee of the Trust Estate of A. B. Faubion, deceased, to himself was canceled. The land described in said deed was impressed with a trust in the hands of the appellant who was ordered to reconvey all of the land to the Estates of A. B. Faubion, deceased, and Beulah Faubion, deceased. It was further ordered that if appellant failed to reconvey said land the decree would operate as a conveyance of said land from him to said estates.

(B) the judgment provided appellees have and recover of and from the appellant title to and possession of a Vs interest in said land and that appellant and appellees are the joint owners each owning an undivided Vs interest.

(C) the judgment provides the description of the land in the contract executed by the appellant’s parents to him is legally insufficient to identify the land.

(D) the judgment further provides that appellant did not exercise the option in accordance with the terms of the contract and that the contract expired at midnight on June 30, 1975, and that the option is unenforceable and that the appellant does not have the right to purchase said property.

The court granted the sisters’ motion and overruled the brother’s motion for summary judgment and the brother has appealed.

The parents of the litigants executed their will on May 3, 1961, which provided after their deaths, all their property should pass to their three children. On the same date, Elvis and his parents entered into a .lease contract which provided:

“I.
In consideration of the covenants hereinafter set out the Lessors hereby lease and let to the Lessee for the period beginning July 1,1961, and ending midnight on June 30 following the death of the second one of the Lessors to die, the following described land situated in Lampasas and Mills Counties, Texas, being 925V2 acres in all, and being 1781/8 acres in Survey No. 41, I. & G.N.R.R. Company, original grantee, and 130 acres in the Edward Winston Survey, No. 51, and 617 acres in the Winston Survey, Abstract No. 720, and being the property upon which the Lessors now reside situated about seven and three-fourths miles northwest of the Town of Lometa, Texas. The Lessors retain and do not hereby lease the residence which they now occupy and the garage, chicken house, tool shed and wash house located near said residence, together with the right of egress and ingress thereto.
II.
The Lessee agrees to pay to the Lessors at Lampasas County, Texas, an annual rental of TWO THOUSAND TWO HUNDRED FIFTY DOLLARS ($2250.00) for the use of said premises, such rental being payable on the last day of the month of June of each year during the term, the first rental payment being due and payable on or before June 30, 1962.
III.
In the event the Lessee should fail to pay any installment of rent when due, or be in default in connection with any of the covenants herein contained, and if such default should continue for a period of thirty days after written demand for payment or performance, then the Lessors shall have the right to terminate the lease and to repossess the premises without prejudice to any legal remedies which they may have for collection of rent.
VII.
If in no way in default at the time the Lessee shall have the option to purchase the above described leased real estate, at the price of $80.00 per acre to be paid in cash at the time of the delivery of the Deed. Such option may be exercised only by written notice given to the Executor or Administrator With The Will Annexed of the Estate of the last of the Lessors to die and to the trustee of any trust or trusts created by the wills of the Lessors, in which trustee the title to all or any part of said land may then be vested, not less than ninety days after such Executor or Administrator With The Will Annexed has qualified as such . . .”

The litigants’ father died June 7, 1967, and their mother died October 19, 1974. Elvis qualified as independent executor under his mother’s will and exercised his option to purchase the ranch. In his official capacity, he executed a deed to himself individually.

The summary judgment reveals that ap-pellees’ original motion for summary judgment and their first amended first supplemental motion for summary judgment and all of the petitioners’ supporting summary judgment proof listed in paragraph 2 of the original motion and in paragraph 3 of the first supplemental motion were considered by the court. Paragraph 2 of the original motion recites the motion is supported by appellees’ third amended original petition and the original answers of the defendant; by the affidavit of the appellees and all the certified copies attached thereto; and by the written deposition of the Federal Land Bank of Houston on file herein. Paragraph 3 of the first supplemental motion for summary judgment is as follows:

“(a) the affidavits of petitioners;
(b) each and all of the certified copies and certificates attached thereto and made a part thereof;
(c) the sworn testimony of defendant at a hearing in this litigation on January 29, 1976, that is shown on the attached copy of page 46 of the Court Reporter’s transcript thereof, as well as in petitioners’ aforesaid affidavit;
(d) the exhibits of the financial records of defendant (other than and except his alleged ledger marked Exhibit D-l) produced, identified and attached by him to and as a part of his oral deposition taken August 11, 1975, and on file herein;
(e) the admissions of defendant, including those under oath contained in his pleadings and motions filed in this litigation;
(f) the written deposition of The Federal Land Bank of Houston on file herein;
(g) the written deposition of The Federal Land Bank Association of Lam-pasas on file herein;
(h) petitioners’ three original petitions, their second and their third amended original petitions, their first supplemental petition, their original motion for summary judgment, all supplements thereto, motion to sever, and their opposition to defendant’s affidavit opposing said motion for summary judgment; and
(i) defendant’s three original answers, his first amended answer, his motion in opposition to petitioners’ motion for summary judgment, and his affidavit in opposition to petitioners’ motion for summary judgment.”

Appellees say:

“. . .It should be noted that appellant did not controvert with any admissible evidence the summary judgment facts established by appellees’ evidence . . ”

In Freeberg v. Securities Investment Company of St. Louis, 331 S.W.2d 825 (Tex.Civ.App.—San Antonio 1960, writ ref’d), the court said:

“Summary judgments are not granted by default, but upon the movant’s discharge of his burden to show the absence of fact issues. If movant’s showing poses only a question of law, there is no need to file counter-affidavits. Couey v. Arrow Coach Lines, Tex.Civ.App., 288 S.W.2d 192. When movant’s own showing develops a fact dispute, he defeats his own summary judgment, though there are no counter-affidavits. Jindra v. Jindra, Tex.Civ.App., 267 S.W.2d 287; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236; 4 McDonald, Texas Civil Practice, § 17.26.3. A respondent is entitled to rely upon admissions, depositions and exhibits in the record, though he has not filed counter-affidavits. Ragsdale v. McLaughlin, Tex.Civ.App., 285 S.W.2d 467. On the basis of either of these rules, Freeberg had standing before the court at the summary judgment hearing, and the inference that he lost because he did not have a sworn answer or opposing affidavits is not correct.”

In appellant’s first amended original answer, he pleaded he was not in default on his contract; he exercised his option to purchase under said contract; and the conveyance to himself was proper. In the alternative, the defendant alleged that he was willing to resign as independent executor of the Estate of Beulah Faubion, deceased, and asked the court to appoint a disinterested party to serve as his successor as Administrator With Will Annexed of the Estate of Beulah Faubion, deceased, and if it were determined that he was not in default and the option was proper, the court could order his successor to convey the property to him. He further alleged that the description to the property was legally sufficient, but in the alternative, if it were insufficient that it was the result of a mutual mistake and it should be reformed so as to provide a proper description.

Appellees rely upon Section 352 of the Texas Probate Code which provides in part a personal representative of an estate shall not become the purchaser directly or indirectly of any property of the estate sold by him or by any co-representative if one be acting. They also rely upon Seven-Up Bottling Company of Austin, Inc. v. Capital National Bank in Austin, 505 S.W.2d 624 (Tex.Civ.App.—Austin 1974, writ ref.n.r.e.) which held in effect that Section 352 of the Texas Probate Code was clear and unambiguous and does not provide for any exceptions from its terms. Section 27 of the Texas Probate Code was not discussed in the Seven-Up opinion. Appellant contends Section 27 of the Texas Probate Code is applicable which provides, in part, when any person sells property and enters into a written agreement to make title thereto and shall depart this life without having made such title, the owner of such written agreement may file a complaint and cause the personal representative of such estate to show cause why specific performance of the written agreement should not be decreed. Appellant pleaded he was willing to resign and permit the court to appoint a disinterested person to serve as Administrator With The Will Annexed. Under these circumstances, the Administrator With The Will Annexed would be in a position to seek specific performance of the contract under said section of the Probate Code.

Appellant had a contract to purchase the land provided the description of the land was sufficient and provided further his option had not expired. Whether the option to purchase expired at midnight on June 30, 1975, involved fact questions which were not conclusively established by the summary judgment proof. When considered in the light of the pleadings and Section 27 of the Texas Probate Code, we hold the appellees did not conclusively establish as a matter of law they were entitled to have the deed canceled. The court held the description of the property in the contract was legally insufficient to identify the land. Appellant pleaded mutual mistake and asked for reformation of the contract to provide proper description if said description was insufficient. In Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972), the court held:

“. . . There is in the record strong evidence that the parties intended to describe a particular and identified tract of 12.375 acres in their contract, and that they were mutually mistaken in the belief that the description used was legally sufficient for that purpose. If that be a fact, Morrow would have been entitled to reformation of the contract had he sought it . .

We hold the appellees have not discharged their negative burden of establishing conclusively there was no mutual mistake of fact in describing the land in the contract.

The judgment is reversed and the cause is remanded.


author: COLEMAN, Justice.

text:
    Milton J. HOPKINS, Appellant, v. STANDARD FIRE INSURANCE COMPANY, Appellee.
    No. 16807.
    Court of Civil Appeals of Texas, 1st District.
    July 21, 1977.

      Sam S. Emison, Jr., Houston, for appellant.
    Andrews, Kurth, Campbell & Jones, Edith H. Jones, Houston, for appellee.
   COLEMAN, Justice.

This is a worker’s compensation case. The case was tried to a jury. Judgment was rendered for the plaintiff for medical expense in the sum of $240.00 by reason of a stipulation of the parties. The plaintiff was awarded nothing by reason of his disability because of the answers made by the jury to the special issues submitted. The judgment will be affirmed.

While the plaintiff, Milton J. Hopkins, was in the course and scope of his employment he sustained serious accidental injuries to his right leg below the knee when it was run over by a fork lift truck. His leg was placed in a cast which was removed after eight to ten weeks and he was fitted with a double metal upright brace. Full weight bearing was allowed five months after the initial injury. He returned to work at Hughes Tool Company in November, 1974 and has worked there continuously from that time until the time of the trial. He received payments under the worker’s compensation law until he returned to work.

The case was submitted to a jury. The jury found: (1) the injury was not a producing cause of any total incapacity; and (2) the injury was not a producing cause of any total loss of use of Plaintiff’s right leg, below the knee; and (3) the injury to plaintiff’s leg below the knee did not extend to and affect his right leg at or above the knee.

Hopkins contends that there was no evidence, or in the alternative, insufficient evidence to support the jury findings to special issues numbers ten and nineteen. By their answers to these issues the jury failed to find the injury was a producing cause of any total loss of use of the right leg below the knee or that the injury extended to and affected his right leg at or above the knee.

Hopkins has failed to properly present his factual sufficiency points and this court may not therefore consider points of error numbers two and four. Both of these points begin with the language “the trial court erred in entering judgment .” Although these points contain great weight and preponderance language they are in effect “no evidence” points. McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545, 548 (Tex. 1964); Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 277 (Tex.1970).

By point of error number one Hopkins contends that the evidence established as a matter of law that the injury which he received was a producing cause of the total loss of use of his right leg below the knee for some period of time.

“Loss of Use” as used in Art. 8306 § 12 V.A.C.S. was defined by the supreme court in Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex.1962):

“A total loss of the 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.”

The evidence establishes as a matter of law that for a period of time Hopkins’ injury was a producing cause of the total loss of use of his right leg below the knee.

The trial court submitted issues to ascertain the beginning date of the total loss of use, and whether such total loss of use is permanent or only temporary, predicated on a “we do” answer to special issue number ten. There was no objection to this matter of submission. Other issues were predicated on an answer of “temporary” to special issue number twelve inquiring about the ending date of total loss of use and the existence of partial loss of use. These issues were not answered. Other predicated issues were submitted and were not answered as required by the instructions of the court.

Under the provisions of Rule 279, T.R.C.P., an independent ground of recovery or defense not conclusively established by the evidence is waived if no issue thereon is given or requested. When some but not all of a cluster of issues necessary to sustain an independent ground of recovery or defense are given and answered by the jury without objection or request, the trial court may make written findings on omitted issues raised by the evidence. If no written findings are made, the omitted issues are deemed to be found by the court in such manner as to support the judgment. In Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963) the supreme court stated:

“The presumed finding provisions of the Rule apply when an answer to a controlling issue is prevented by improper conditional submission without objection or request by the party who is entitled to and should insist upon a jury finding thereon. . . . ”
******
“In each of these cases there was no jury finding on a controverted question of fact because the issue as submitted was conditioned on an affirmative answer to a prior issue which was answered in the negative. Although no objection to the conditional submission was made in the trial court, it was contended on appeal that the affirmative of the issue answered by the jury was established by the undisputed evidence as a matter of law. The prior issue had no place in the charge if it was conclusively established by the evidence, and the appellant could have insisted upon an unconditional submission of the disputed question of fact. It was accordingly held that the unanswered issue would be regarded as having been answered by the court in such manner as to support the judgment.”

It is Hopkins contention on this appeal that special issue number ten was established by the evidence as a matter of law. The issue, under those circumstances, had no place in the charge, and the plaintiff could have successfully objected to the predication of the succeeding issues. It was plaintiff’s burden to see that all essential elements of his cause of action were submitted to the jury, or to object to the submission of the case to the jury in such manner that an answer on an essential element would be prevented.

By permitting a conditional submission of special issues eleven through eighteen without objection, Hopkins waived his right to have a jury trial on the unanswered issues and the benefit, if any, he might have received from favorable answers to such issues. Rules 272 and 279, T.R.C.P.; Strauss v. LaMark, supra; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949); Duval County Ranch Co. v. Foster, 318 S.W.2d 25 (Tex.Civ.App.—San Antonio 1958, writ ref’d n. r. e.).

In his third point of error Hopkins contends that the trial court erred in entering judgment denying a recovery for injury to the right leg below the knee because there was no evidence to sustain the jury’s answer to special issue number nineteen inquiring whether the injury extended to and affected Hopkins’ right leg at or above the knee. Neither in this point nor in the statement and argument under the point does the plaintiff assert that the evidence establishes as a matter of law an extension of the injury to the right leg at or above the knee.

The jury’s negative answer to special issue number nineteen need not be supported by affirmative evidence. It avails him nothing to assert that a negative answer is without support in the evidence. It is his burden to demonstrate that an affirmative answer to special issue number nineteen is established by the evidence as a matter of law. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966).

Hopkins argues that the medical testimony is that the injury extended to and affected the leg above the knee and that there is no evidence to the contrary. It is also asserted that the plaintiff’s testimony corroborates that of the doctors. We conclude that this is sufficient to direct this court’s attention to the question of whether an affirmative answer to special issue number nineteen was established as a matter of law. O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976).

An examination of the motion for new trial filed by the plaintiff shows that he did not refer to special issue number nineteen in any manner. There is no point in the motion complaining of the jury’s answer to special issue number nineteen and there is no assertion that an extension of the injury to the right leg below the knee extended to or affected any other part of his body. Since the appellant’s third point of error is not germane to a ground of error distinctly set forth in the motion for new trial this court has no jurisdiction to consider it. Darryl v. Ford Motor Company, 400 S.W.2d 630 (Tex.1969); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).

The judgment is affirmed.


author: PEDEN, Justice.

text:
    Catherine Ann SCOTT, Appellant, v. Stephen William SCOTT, Appellee.
    No. 16871.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 21, 1977.

      Floyd H. Christian, Jr., Angleton, for appellant.
    Jimmy Phillips, Jr., Angleton, for appel-lee.
   PEDEN, Justice.

Stephen Scott brought this Texas suit for divorce and child custody. His wife, Catherine Scott, had recently moved back to California, and she had initiated a similar suit there. After a hearing, the Texas trial court overruled Mrs. Scott’s motion to the jurisdiction and denied her plea in abatement. She perfected this appeal from the subsequent judgment granting the divorce and awarding custody of the child to the husband. Her position is that the Texas court lacked personal jurisdiction over her and that it should have stayed the proceedings in deference to the previously filed California action.

We hold that the record does not show that the trial judge erred.

We summarize the agreed statement of facts filed by the parties.

1. The parties and their minor son moved from California to Texas on 11— 22-75 and resided in Angleton, Brazo-ria County, Texas, until 2-4-76. On that date the parties separated and Mrs. Scott returned to California with the child.
2. Mr. Scott filed suit for divorce in Brazoria County on 2-5-76 in cause # 63,636 and sought custody of the child and a division of community property. Process was served on Mrs. Scott in California.
3. Mrs. Scott filed suit for divorce in Riverside County, California, on 2-6-76 and sought custody of the child, support for the child and herself, division of property and attorney’s fees. Process was served on Mr. Scott in Texas.
4. Mrs. Scott filed a special appearance in the Texas suit to present a motion to the jurisdiction and a plea in abatement. After a hearing, judgment was entered on 5-13-76 overruling the motion to the jurisdiction but dismissing Mr. Scott’s suit under these terms:
“Upon the evidence, agreements and arguments of counsel presented in behalf of Respondent’s Original Plea in Abatement this Court finds that the parties, Stephen William Scott and Catherine Ann Scott established Brazo-ria County and the State of Texas as their domicile and residence on November 22, 1975; that as of the date of filing of the Original Petition for divorce on February 5,1976 the Petitioner, Stephen William Scott did not have the length of residence and domicile required in order to maintain a divorce action.”
5. On 5-4-76 Mr. Scott filed an affirmative response in the California suit, seeking a divorce, custody of the child, and other relief.
6. On 6-3-76 he filed the instant cause in Brazoria County, seeking a divorce, custody of the child, child support, and other relief. Process was served on Mrs. Scott in California.
7. At that time, Mrs. Scott’s California suit was still pending and temporary orders then in effect awarded custody to her, ordering Mr. Scott to pay child support and granting visitation rights to him.
8. On 7-6-76 Mrs. Scott filed a special appearance to present a motion to the jurisdiction and a plea in abatement in this proceeding. At the hearing held on 7-30-76, the trial judge took judicial notice of California Civil Code Sections 4350, 4351, 4355, 4357, 4358, 4370, 4371, 4380, 4501, 4506, 4507, 4508, 4514, 4600, 4700, 4800, 4801, 5107, 5108, 5110, and California Code of Civil Procedure Section 415.40. He also took judicial notice of California case law as presented by Lovell v. Parrish, 34 Cal.App.2d 323 [93 P.2d 166] (1939). (Its only relevance, so far as we can determine, is its holding that under California law a final divorce decree terminates the relationship between the parties.) Authenticated copies of the record in the California suit were admitted in evidence. The court also admitted in evidence and took judicial notice of his court clerk’s file in Mr. Scott’s earlier suit, cause # 63,636, and a copy of Section 4530(a), California Civil Code, which contained this provision:
“Residence Requirements. — Plaintiff or defendant must have been resident of state for six months, and of county for three months, next proceeding commencement of action.”
9. A bill of exceptions shows the arguments made concerning the taking of judicial notice.
10. On 8-30-76 the Texas Court entered an order containing this provision:
“It further appearing to the Court, and the Court so finds that Respondent’s Original Plea in Abatement is in the nature of a Motion to Stay the proceedings in this cause pending final determination of Case No. D-19,353, styled: “In re the Marriage of Catherine Ann Scott and Stephen William Scott”, in the Superior Court of California County of Riverside; that the Petitioner, Stephen William Scott and the Respondent, Catherine Ann Scott, established Brazoria County, Texas, as their domicile and residence on November 22, 1975; that Respondent, Catherine Ann Scott, at the time of filing a Petition for dissolution of marriage on February 6,1976, in Case No. D-19,353, as aforesaid, did not satisfy the domicile and residency requirements of the State of California; and that Respondent’s Original Plea in Abatement should be denied.
“It is therefore Ordered that Respondent’s Original Plea in Abatement be, and the same is hereby denied.”
11. The public statutes and case law of California as presented by Mrs. Scott are incorporated by reference as facts proved at the 7-30-76 hearing.
12. On 7-30-76 the parties’ minor child resided in California with Mrs. Scott.
13. The parties to the different suits are the same.
14. As of 7-30-76 the California suit was set for 10-28-76 and all pre-trial matters had been completed.
15. All property owned by the parties was personal property located in Texas and California.
16. The record of the California case admitted into evidence in the Texas hearing “is included in the transcript of this proceeding and is incorporated herein by reference as proof of the matters stated in such record as if fully set forth herein.

The appellant’s first point of error is that the court erred in overruling her motion to the jurisdiction because she lacked the requisite minimum contacts with the State of Texas. In contesting the jurisdiction of the court by special appearance under Rule 120a, Texas Rules of Civil Procedure, the appellant had the burden of pleading and proving that she was not amenable to process issued by the courts of Texas. Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App.1973, writ ref. n. r. e.).

The parties’ marital cohabitation in Texas from November 22,1975 until February 4, 1976, clearly brings appellant within the Texas long-arm jurisdiction under § 3.26(a)(1) of the Texas Family Code. That section states:

“(a) If the petitioner is a resident or a domiciliary of this state at the commencement of a suit for divorce, . . . the court may exercise personal jurisdiction over the respondent, . . .. Although the respondent is not a resident or a domiciliary of this state if:
(1) this state is the last state in which marital cohabitation between petitioner and the respondent occurred and the suit is commenced within two years after the date on which cohabitation ended; or
(2) . . .
(b) . . .

Application of this section is constitutionally limited by due process requirements that:

“in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Mitchim v. Mitchim, 518 S.W.2d 362, 366 (Tex.1975).

The appellant was able to present little competent evidence to support her allegations of a lack of minimum contacts with the State of Texas. She relies on information contained in the record of the California proceedings. Even though that record was formally introduced, little of it was competent evidence to establish in the Texas court the matters on which she relies.

A judicial record is always admissible to prove the fact that a judgment has been rendered, the time of its rendition and the terms and effect of the judgment . the record may not be introduced to establish the facts on which a judgment was based. Adams v. State Board of Insurance, 319 S.W.2d 750, 754 (Tex.Civ.App.1958, writ ref. n. r. e.), citing 32 C.J.S. Evidence § 636, 488-489 (at p. 808 in 1964 ed.).

Neither the allegations in Mrs. Scott’s California pleadings, her affidavits, nor her letters were competent evidence of the truth of the matters stated in them.

The only evidence contained in the California record which falls within an exception to the hearsay rule is appellee’s sworn pleading stating that “petitioner [Mrs. Scott] has been a resident of this state [California] for at least six months and of this county for at least three months immediately preceding the filing of this petition.” Pleadings in other actions that contain statements inconsistent with the pleader’s present position are receivable as admissions. 2 McCormack & Ray, Evidence 35, § 1145 (2d ed. 1956).

This one piece of negative evidence was not binding on Mr. Scott as a judicial admission nor was it binding on the trial court as proof that Mrs. Scott was never domiciled in Texas, nor that she did not have the requisite minimum contacts with this state. We have noted that the agreed statements of facts recites that the parties resided in Texas for nearly 2% months immediately prior to separation. We cannot say as a matter of law that the appellant met her burden of proving a lack of sufficient contacts with the State of Texas to allow the Texas court to assert personal jurisdiction over her.

Appellant’s second point of error is that the trial court abused its discretion in denying her plea in abatement because a prior and virtually identical suit was pending in California, where it was uncontested that she had satisfied residency requirements. The Texas court found that Mrs. Scott’s motion was in the nature of a motion to stay the proceedings but that she had not satisfied the California domicile and residence requirements.

The general rule on comity is:

“While . . . the pendency of a prior suit involving the same parties and subject matter strongly urges the court of the local forum to stay the proceedings pending determination of the prior suit, yet the rule is not mandatory upon the court nor is it a matter of right to the litigant. It is, after all, a matter resting within the sound discretion of the court.” Mills v. Howard, 228 S.W.2d 906, 908 (Tex.Civ.App.1950, no writ).

In our case the parties and subject matter were identical in both suits, and the California Court had already issued temporary orders. Appellant relies on Evans v. Evans, 186 S.W.2d 277 (Tex.Civ.App.1945, no writ) which involved a somewhat similar fact situation. In that case the court said, in dicta, that if the allegations of the wife were found to be true, a refusal to stay the proceedings would amount to an abuse of discretion; there, however, the husband had invoked the jurisdiction of the Ohio court by filing suit in that state and had then moved to Texas and filed a second one.

In denying the motion to stay the proceedings, the Texas court found that both parties had established Brazoria County, Texas as their domicile and residence on November 22, 1975 and that Mrs. Scott had not satisfied the California domicile and residency requirements when she filed her cause on February 6, 1976.

The Texas court took judicial notice of the California divorce statutes concerning residency requirements, but had to look to Texas interpretations, since no interpretive California case law on residency was submitted. Gunther v. Gunther, 478 S.W.2d 821 (Tex.Civ.App.1972, writ ref. n. r. e.). The agreed statement of facts says that appellant resided in Texas until her return to California on February 4, 1976. Since a divorce action is quasi in rem, the California court would attain divorce jurisdiction over the marriage when appellant alone became a domiciliary of California. Dosamantes v. Dosamantes, 500 S.W.2d 233 (Tex.Civ.App.1973, writ dism.). The provisions of the Texas residency statute are not jurisdictional, but merely prescribe the necessary residential qualifications for bringing a divorce action. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77 (1933); Schreiner v. Schreiner, 502 S.W.2d 840, 842 (Tex.Civ.App.1973, writ dism.). The California court also had jurisdiction over both parties, since both had appeared.

We have noted that although Scott affirmatively pleaded in California that his wife had met the statutory residency requirements, when that pleading is considered in the Texas suit it amounts to an admission but not to a judicial admission. It should be considered by the Texas court, but it is not determinative of the issue. The California case had not gone to final trial and decree when the Texas decree was entered, so the residency question had not been finally disposed of in that state.

Therefore the California court’s residency determination was not entitled to full faith and credit, and the decision to deny Mrs. Scott’s motion to stay the Texas proceedings rested within the sound discretion of the Texas court. We hold that the record does not show that the trial judge abused that discretion.

Affirmed.


author: DUNAGAN, Chief Justice.

text:
    CITY OF SAN ANTONIO, acting By and Through its WATERWORKS BOARD OF TRUSTEES, Appellant, v. Ralph Wayne THEIS, Appellee.
    No. 1007.
    Court of Civil Appeals of Texas, Tyler.
    July 21, 1977.
    Rehearing Denied Aug. 18, 1977.

      Richard A. Flume, Sawtelle, Goode, Davidson & Troilo, San Antonio, James M. Parker, City Atty., San Antonio, for appellant.
    James G. Murry, San Antonio, for appel-lee.
   DUNAGAN, Chief Justice.

This is a suit involving wrongful suspension of employment. Appellee Ralph Wayne Theis, plaintiff below (hereafter called “Theis”), filed suit against the appellant City of San Antonio, acting by and through its Water Works Board of Trustees (hereafter called “appellant”), seeking damages for wrongful suspension and temporary and permanent injunctive relief in the form of a full reinstatement to his former position and salary. At a hearing on the temporary injunction, pursuant to agreement between the parties, the court entered its temporary injunction ordering appellant to pay Theis’s salary while he continued under suspension. Thereafter appellant filed its original answer alleging misconduct and incompetency on Theis’s part in the pursuit of his job responsibilities, said misconduct chiefly consisting of unsubstantiated payments and overpayments to contractors doing construction work for appellant’s water board.

Trial was before a jury who, in answer to special issues, found that appellant did not have probable cause to suspend Theis without pay (in answer to Special Issue No. 1); that as a result of the wrongful suspension Theis suffered actual damages of $62,500.00 (in answer to Special Issue No. 2); that appellant acted with malice in suspending Theis (in answer to Special Issue No. 3); and that exemplary damages of $87,500.00 should be awarded against appellant (Special Issue No. 4). Defendant thereafter filed its motion for judgment n. o. v. The trial court partially granted said motion, and in its judgment recited that there was no evidence to support the jury’s findings of malice and exemplary damages and that the jury’s answers to Special Issues Nos. 8 and 4 should be disregarded. Otherwise, the court entered its judgment in favor of Theis and against appellant upon the jury’s answers to Special Issues Nos. 1 and 2 in the amount of $62,500.00 with interest and costs in favor of Theis. The court’s judgment also permanently enjoined appellant from doing any act or engaging in any conduct designed or intended to prevent Theis from pursuing his position with appellant.

After appellant made its motion and amended motion for new trial and the court’s overruling of same, appellant timely perfected this appeal, alleging twenty-one points of error. Theis presents counterpoints in reply to appellant’s points of error, and also presents two cross points complaining of the court’s action in disregarding the jury’s answers to Special Issues Nos. 3 and 4.

We reverse and render.

Theis’s position was supervisor of the construction inspection division of the Water Works Board of San Antonio, a public utility owned by the City of San Antonio, appellant. The Water Board annually contracts out millions of dollars worth of construction work pursuant to public bidding. The construction work is done under the general conditions and specifications of Water Board contracts which Theis and contractors were to follow. The general conditions permit extra work to be done in certain situations pursuant to the execution of change orders. Theis was responsible for negotiating change orders, and initiating payment for extra work done pursuant to authorized change orders. Theis’s job included confirming that all work was performed and the materials furnished according to Water Board specifications prior to approving the partial payment or final payment certificates.

Theis held his position of supervisor from April 1973 until November 1975. During a period of approximately eighteen months, Theis approved payments to certain contractors which his superiors soon thereafter contended were unauthorized. Because of the amount of these alleged overpayments indicated by the Water Board’s internal audit, the Water Board’s management commenced an investigation for possible dishonesty in connection with these overpayments.

On November 19,1975, Theis was handed a letter by Hugh R. Anderson, director of the engineering department, in which Theis was given notice of his suspension without pay “for a period not to exceed six weeks in accordance with the provisions of Section Y.D.7.C., ‘Theft of City Water Board or Employee Property or other Forms of Dishonesty’ and Section V.E.l.e(3), ‘Disciplinary Layoff or Suspension Without Pay’ of the City Water Board Personnel Manual.” The letter informed Theis that a preliminary investigation indicated that “in respective cases overpayments, falsification, or alterations of change orders and final payment certificates” had been made in jobs individually listed by number in the letter. During the suspension effected by the letter an investigation was to be made in continuance of the preliminary investigation which preceded the suspension.

After the suspension, the Water Board ordered a full scale investigation by Ernst & Ernst, an auditing firm, which conducted an independent audit. The audit was completed on January 13, 1976.

On November 26,1975, Theis delivered to Anderson an “Inter Office Memorandum” which set out Theis’s answers and explanations to each of the jobs put in issue by the November 19th letter. Theis received no reply to this memorandum from appellant. In the meantime, Theis retained counsel who, on December 4, 1975, requested the Water Board in writing to send in detail the complete charges concerning the Water Board’s accusations of dishonesty against Theis. On December 11,1975, Anderson, in behalf of appellant, answered counsel’s letter stating that Theis had not yet been charged with theft. Anderson also gave counsel specific information concerning the accusations stemming from the jobs in question, and notified counsel that Theis’s alleged acts were in violation of state statutes.

By letter dated December 30,1975, appellant advised Theis that his suspension without pay was being extended for an additional period not to exceed fifteen days pending further and thorough investigation of the allegations.

On January 15,1976, Anderson, in behalf of appellant, notified Theis by letter that the audit report of Ernst & Ernst was being turned over to the appropriate law enforcement authorities at that time, and thereby continued the suspension without pay indefinitely while the matter was reviewed by local law enforcement authorities. The letter also notified Theis that his right to file a formal employee grievance was available to him.

On January 19, 1976, Theis filed this suit for damages and injunctive relief, with a hearing for temporary injunction set for January 24, 1976.

On Saturday, January 24, 1976, at 4:00 o’clock P.M., appellant’s employees, Toler and Anderson, went to Theis’s home and presented him with a letter, notifying him that he was being discharged. The letter covered in detail the grounds for discharge.

At the hearing on the temporary injunction, an agreement was reached between •the parties that Theis would be reinstated as an employee as if he had not been discharged; that he be continued on suspension; that he be paid all wages and other benefits accrued since November 19, 1975; that appellant continue to pay Theis all wages and other benefits as accrued through final disposition of said cause on its merits; that a writ of injunction issue in accordance with the order; and that the case be specially set for trial on the merits for March 1, 1976.

Appellant in its points of errors nos. 1-8 complains of the permanent injunction granted by the court. Theis states under his counterpoint one in reply to appellant’s points of error nos. 1-8 “that he wishes to and does now abandon his plea for permanent injunction and the relief granted him thereon by the Trial Court; that . this Court should order the Trial Court to reform its judgment to conform with the submission herein of Appellee.” In compliance with this waiver the judgment of the trial court is reformed and the permanent injunction granted by the trial court in favor of appellee is hereby rescinded.

Appellant in its point of error no. 12 alleges that “The trial Gourt erred in overruling the defendant’s [appellant] first supplemental motion for judgment notwithstanding the verdict because the uncontra-dicted evidence and appellee’s judicial admission showed as a matter of law that defendant had probable cause to suspend the plaintiff. (Defendant’s First Supplemental Motion for Judgment Non Obstante Veredicto, Par. XII. Tr. 122).”

Theis’s counterpoint five in reply to appellant’s point of error contends that “Appellant is precluded from raising as error this point as it was not assigned as error in Appellant’s first supplemental motion for new trial; nor did Appellant object and except to the submission of this issue prior to the submission of the Court’s charge to the jury.”

Tex.R.Civ.P. Rule 301 provides that “. . . upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence.” There is no prerequisite to appellate review that the grounds presented in a rule 301 motion must be repeated as assignments of error in a motion for new trial. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890 (1960); Tex.R.Civ.P. 324.

There is additionally no requirement that appellant object and except to the submission of a special issue on a “no evidence” basis as a predicate to attacking the same in a motion for judgment non obstante veredicto. 4 McDonald “Texas Civil Practice” sec. 17.32, at pages 208-209.

The record is clear that appellee falsified certain payments to contractors in the form of payment certificates and work entries. Appellee himself judicially admitted doing so in the following testimony concerning a particular job done by the R. L. Jones Company under contract involving work done at a street intersection:

“Q. When the contractor reached that intersection, there was a disagreement about whether he was going to bore under the street, and he asked to be compensated extra for putting tunnel liners in; is that right?
“A. Yes, sir.
“Q. And you agreed that he could put in tunnel liners which weren’t provided for in the specs, and you negotiated a price with him to put them in, right?
“A. Yes, sir.
“A. Yes, the negotiated price was $57.00 a linear foot.
“Q. Now, when it came time to prepare — so, the change order was prepared by you that he would be paid extra for this, right?
“A. Yes, sir.
“Q. It was your judgment, then, that he was not to follow the specifications, but to put in tunnel liners?
“A. YES, SIR, THIS WAS AN EXCEPTION.
“Q. Now, when it came time to pay the contractor, the amount of $57.00 a foot didn’t appear on the payment certificate, did it?
“A. No, sir.
“Q. You prepared the payment certificate and approved it for payment, showing a different figure to be paid to the contractor; isn’t that correct?
“A. Yes, sir.
“Q. Didn’t you, in fact, show $27.00 a foot?
“A. Yes, sir.
“Q. In doing that, you showed an entry for something called select back-fill or sand for another $20.00 which was never actually delivered to the job; is that right?
“A. Yes, sir. That was a part of the payment for the tunnel liner.
“Q. You showed $37.00 a foot instead of $57.00 a foot, and you showed an extra $20.00 a foot on something else that was never delivered; is that right?
“A. Yes, sir.
“Q. In fact, the specifications didn’t call for any sand or back-fill to be paid for as extra, did it?
“A. No, sir.
“Q. And there wasn’t, in fact, any sand or back-fill delivered to that job, was there?
“A. No, sir.
“Q. And yet, you prepared a certificate which paid the contractor for a certain quantity of select back-fill and sand?
“A. Yes, sir.”

In another job requiring installation of fire hydrants by the R. L. Jones Company, the testimony is as follows:

“Q.This was a job in which the contractor was to install thirteen fire hydrants; is that correct?
“A. Yes, sir.
“Q. And he was paid for installing thirteen fire hydrants?
“A. Yes, sir.
“Q. And isn't it correct that there was an extra payment of $660.00 for fire hydrants that were not delivered — that were not installed, and an additional $1,800.00 for the taps for those fire hydrants that were not installed?
“A. Yes, sir.
“Q. And you approved the payment certificate for the payment of the thirteen fire hydrants, right?
“A. Yes, sir.
“Q. How many were actually installed?
“A. There were ten installed on the job.
“Q. Wasn’t the contractor paid for the installation of thirteen?
“A. Yes, sir.
“Q. Mr. Theis, how can you be paid for fire hydrants that aren’t installed and aren’t there?
“A. There was a delay in getting the last three fire hydrants for the particular job, because they were specially ordered; and, evidently, they hadn’t arrived by the time that the final payment certificate was issued on the job.
“Q. By the time that you issued the payment certificate, did you check to see if all thirteen had been installed?
“A. No, sir, I didn’t go out and visually check all the jobs.
“Q. Did you check the plans to see if the inspectors had shown that the fire hydrants had been installed?
“A. No, sir.
“Q. To this date, have those fire hydrants been installed?
“A. I don’t know if they have or not.
“A. . . . immediately after my suspension, I drove by the job and there were three fire hydrants missing on it.”

Another job done under appellee’s supervision involved the execution of change orders for extra work. The testimony concerning it is as follows:

“Q. So, when this $13,650 worth of extra work was agreed upon in this Cody Street job, it was up to you and the people under your supervision to see that it was done before it was paid for; right?
“A. Yes, sir.
“Q. Well, sir, are you able to say, under oath, that that work was done before it was paid for?
“A. No, sir.
“Q. Yet, you signed a payment certificate in each of these instances that total $13,650 approving payment for that work?
“A. Yes, sir, based on the assumption that the payment certificate was correct and the work had been done.
“Q. Yet, there are no indications on the as-built plans that this work was actually done, are there?
“A. No, sir.
“Q. Did you check the as-built plans before you paid the contractor?
“A. No, sir.
“A. No, I didn’t check all the jobs — or I didn’t check a lot of the jobs against the as-built plans.
“Q. Isn’t it a fact, Mr. Theis, that at least seven of these intersections, that no wet connections were actually installed and no what’s called tapping sleeves were installed, which were provided for in the contract?
“A. Yes, sir.
“Q. And the contractor had already been paid for that in the original contract, right?
“A. Yes, sir, for that work.
“Q. All right, sir. And yet, he was paid for wet connections on top of that, that was never done?
“A. Yes, sir. I said that I relied upon the payment certificates filled out by the payment estimator and the inspector.
“Q. Have you ever caught this clerical person in any mistakes?
“A. Yes, sir, on occasion.
“Q. Did you check him out on this particular computation to see if there were any mistakes made?
“A. No, sir.”

The above testimony constitutes a judicial admission by appellee that he committed certain acts which constitute falsifications of government records or job-related misconduct. “A judicial admission consists of a formal statement, either by a party or his attorney, in the course of a judicial proceeding which removes an admitted fact from the field of controversy.” Mobil Oil Co. v. Dodd, 515 S.W.2d 351, 353 (Tex.Civ.App.—Corpus Christi 1974, no writ). See Gevinson v. Manhattan Constr. Co., 449 S.W.2d 458, 466 (Tex.1969). If these acts which appellee judicially admitted constitute a serious violation of his employment contract, they would extinguish appellee’s right to recover for wrongful suspension, if suspension was warranted by the doing of these acts.

Our determination of this case therefore hinges upon the question of whether as a matter of law appellant had probable cause to suspend plaintiff. In doing so we must review the job duties and responsibilities of appellee in light of the conditions contained in the City Water Board employee handbook.

The formal job description of appellee’s position, Supervisor of the Construction Inspection division, involved the following typical duties:

“1. Supervises the personnel and activities of a group representing the City Water Board on construction contracts ... to assure conformance to contract specifications.
“2. Coordinates construction projects with contractor ... by conducting . . . detailed inspections to . record existing irregularities .
“3. Approves certificates for partial and final payments to contractor.
“4. Negotiates contract change orders resulting from field changes made to original plans and establishes costs associates with these changes
“6. Visits construction projects and confers with construction inspectors on matters such as progress of job according to schedule, field changes made and required, . and the like.
“7. Inspects in conjunction with Construction Inspector-Senior completed projects for discrepancies and insures any discrepancies found are corrected prior to initiating final payment.
“10. Maintains or directs the maintenance of various maps and records such as records of contract work, payment record, inspector estimates, and the like.
“11. Performs related duties as required.”

A City Water Board Handbook entitled “Employee Handbook on Employee Grievance and Discipline-Discharge For Cause” sets out generally recommended disciplinary steps. Under the “Discipline-Discharge For Cause” provisions, the following provisions appear:

“C. Justifiable Cause for Employee Discipline or Discharge:
6. Willful violation of City Water Board Rules.
8. Various acts of dishonesty or misconduct including . . . falsifying of work records .
10. Incompetence towards the work situation which would include carelessness, defective work .
“D. Discipline and Discharge Standards and Practices:
1. The type of disciplinary action taken will be related to the circumstances surrounding the actions or omissions of the employee .
2. In cases of serious offenses such as stealing of City Water Board properties . a supervisor is not required to follow a progressive series of disciplinary actions .
7. The form of discipline used will depend upon the circumstances surrounding the situation . . .. [Gjeneral guidelines ... are provided as guides and are not intended to restrict the actions of supervisors nor to define the disciplinary measures to be taken in any specific instance.
c. THEFT OF CITY WATER BOARD OR EMPLOYEE PROPERTY OR OTHER FORMS OF DISHONESTY — These offenses normally result in an immediate suspension in order for an investigation to be made. Depending on the results of the investigation the employee may be discharged, continued on suspension while the matter is turned over to local law enforcement authorities or returned to duty . ..”

The tenor of the above rules in our opinion is that in situations where serious violations appear to have occurred, a supervisor is not required to follow a progressive series of disciplinary actions. The record shows that concerning jobs under appellee’s supervision a total amount of $36,479.00 was paid for goods and services which were either not received or that some other goods and services were received and paid for in violation of City Water Board and job contract rules. The record also shows $93,482.00 was paid for goods and services which were received but the reason for payments to contractors for specific items are questionable. The expense for some of the items were to have been paid by the contractors as required by City Water Board and job contract rules. The fact that such large expenditures were in question gives us little doubt that a full and proper investigation was required. The provisions of City Water Board’s “Employee Handbook on Employee Grievance and Discipline Discharge For Cause” we think allowed appellee’s supervisors in this situation the right to suspend appellee while an investigation was made.

As shown earlier in the description of appellee’s job, he was in a supervisory role, and either had control over or maintained or directed “the maintenance of various maps and records such as . records of contract work, payment records, inspector estimates, and the like.” An investigation into the subject irregularities required a detailed analysis of records under appel-lee’s control. The amount of money in question necessitated an investigation that could only be properly conducted in appel-lee’s absence from the job to assure preservation of the records.

Appellee contends that the section of the handbook under which he was suspended required a dishonest act. An investigation here was needed to determine if appellee’s acts were dishonest or incompetent or both. We think the purview of the section allegedly requiring a dishonest act covers such a situation as this one. Appellee himself admitted falsifying a governmental record which in itself is a violation of Tex. Penal Code Ann. sec. 37.10 (1974).

The record is clear that certain over-payments were undisputedly made and that other serious irregularities existed. This, plus appellee’s judicial admissions, we think, establish as a matter of law that appellee’s superiors had probable cause to suspend appellee pending investigation. Where certain facts are undisputed, the trial court may disregard the jury’s findings to a special issue and render judgment on the undisputed evidence. Wooley v. West, 391 S.W.2d 157 (Tex.Civ.App.—Tyler 1965, writ ref’d., n. r. e.); Tex.R.Civ.P. 301.

We have considered appellant’s remaining points of error and find them to be without merit. They are accordingly overruled.

Appellee presents two cross points of error alleging that the court erred in disregarding the jury’s findings that appellee was entitled to recover exemplary damages in the amount of $87,500.00. In light of our holding that as a matter of law appellant had probable cause to suspend appellee, ap-pellee’s cross points are overruled.

For the reasons stated, the judgment of the trial court that appellee have and record actual damages in the amount of $62,-500.00 from appellant is reversed and judgment is hereby rendered that appellee take nothing from appellant.

Reversed and rendered.


text:
    W. S. NACOL, Jr., M.D., Appellant, v. Ola WILLIAMS, Individually and next friend of minor children, Bonnie R. Williams, et al., Appellees.
    No. 5048.
    Court of Civil Appeals of Texas, Eastland.
    July 21, 1977.
    Rehearing Denied Aug. 18, 1977.
    Charles W. Oldham and Judd B. Holt, Oldham & Holt, Wichita Falls, for appellant.
    Aubrey L. Roberts, Jr., Mays, Moore, Dickson & Roberts, Inc., Sweetwater, for appellees.
   WALTER, Justice.

This is a venue case. Ola Williams, individually and as next friend of her minor children filed suit in Nolan County, Texas, against W. S. Nacol, Jr., M.D.

Nacol filed a plea of privilege on June 9, 1976. Subject to his plea of privilege, Nacol filed his original answer.

The “Motion to Rule for Costs” filed June 9, 1976 is as follows:

“Defendant makes this his demand that Plaintiff be required to file a good and sufficient cost bond in this case or make a sufficient deposit in lieu thereof. In view of the fact that several depositions will probably be taken in this cause, he asks that if a cash deposit in lieu of a bond is offered, Plaintiff be required to deposit an adequate amount to cover the expense of such depositions, which Defendant estimates at $350.00.”

Accompanying the motion was the following order:

“ON THIS DAY, came on to be heard, the Motion of the Defendant, to rule the Plaintiff for costs. It appearing to the Court that the Plaintiff has had due notice of such Motion, that he has not given security for costs, and that such Motion is well taken, it is accordingly ORDERED that Plaintiff be and she is hereby, ruled to give security for costs herein within twenty (20) days from this date by posting a bond conditioned as required by law or depositing a sufficient sum in cost to cover the costs which said sum shall be not less than $_If the Plaintiffs fail to post said bond or cost deposit within twenty-three (23) days of a signed copy of this Order being placed in the U.S. Mail properly addressed to the Plaintiffs or the Plaintiff’s attorney, then this case is automatically dismissed with prejudice upon the Defendant certifying to such notice without further action of this Court.
RENDERED AND ENTERED this _day of June, 1976.
JUDGE PRESIDING”

The court used the form submitted and required the plaintiff to deposit $350 cash to cover the costs. On the same day, the plaintiff complied with the court’s order and deposited with the clerk $350 in cash.

Nacol also filed interrogatories propounded to the plaintiff pursuant to Rule 168, T.R.C.P., on June 9, 1976.

In her controverting plea, Mrs. Williams contends Dr. Nacol waived his right to be sued in the county of his residence because he invoked the jurisdiction of the court for general purposes when he filed a motion for costs and obtained an order requiring the plaintiff to post a cash deposit in the amount of $350.00.

The court overruled the plea of privilege and Dr. Nacol has appealed. He contends the court erred in holding venue was proper in Nolan County and in holding Nacol waived his plea of privilege.

The answer was filed subject to the plea of privilege but the motion to rule for costs was not so filed. When the motion was filed and the form for the judge to use in granting the motion was attached to the motion, the court had a duty to pass on the motion. In Wilie v. Montgomery Ward & Company, 291 S.W.2d 432 (Tex.Civ.App.—Waco 1956, no writ), the court said:

“Going back to a consideration of Points 1 and 2, we find defendants seasonably filed written motion asking that the plaintiff be required to file a good and sufficient cost bond or make a substantial deposit in cash, but we find nothing in the record to show that the court took any action whatsoever on the same. It is the contention of defendants here that the court took no action on the motion and that since the court failed to take any action and failed to require the plaintiff to make a good cost bond in accordance with Rule 143, T.R.C.P., that the court committed reversible error and that they are entitled to have the cause reversed and remanded and the cause dismissed. We overrule this contention for reasons which we shall hereafter briefly state.
Rule 143, T.R.C.P., is as follows:
‘The plaintiff may be ruled to give security for costs at any time before final judgment, upon motion of the defendant or any officer of the court interested in the costs accruing in such suit, and, if such rule be entered against the plaintiff and he fail to comply therewith on or before twenty (20) days after knowledge or notice that such rule has been entered, the suit shall be dismissed.’
This court is in accord with the view that it was the duty of the trial court to pass upon this motion, but since the court refused to do so we do not think it is ground for us to reverse the case and dismiss the cause.” (Emphasis added)

The statement of facts in the instant case reveals the following:

“THE COURT: The Court’s recollection, for the record, of how this matter came to the Court’s attention: The filing of the instrument, including the Plea of Privilege, the Motion To Rule For Costs, the Order appended to it, and the Request for Admission to Interrogatories, was called to the attention of the Court by the clerk, along with another batch of other things while I was in the clerk’s office writing on the docket. Mr. Roberts came in. Of course, I can’t see his intentions any better than I can anybody else’s. I called it to his attention, and he indicated that, of course, he would be happy for me to go ahead and enter the Order. And I entered the Order. And he did put up then, within an hour I guess, three hundred and fifty dollars in cash.”

In St. Louis & S. F. R. Co. v. Hale, 109 Tex. 251, 206 S.W. 75 (1918), the court said:

. Two days before the plaintiff in error, a foreign railroad corporation, moved to quash the service of citation, it filed the following motion:
‘S. T. Hale v. St. L. & S. F. R. R. Co. In 15th District Court, Grayson County. Now comes the defendant and moves the court for an order requiring plaintiff to give security for costs. Head, Smith, Hare & Head, Attorneys for Defendant.’
In our opinion, this motion operated as a voluntary appearance by plaintiff in error and waived any defect in the service . . . ”

In Barrett v. Cheatham, 281 S.W.2d 761 (Tex.Civ.App.—Waco 1955, no writ), defendant Barrett filed a plea of privilege on February 2, 1955, and plaintiff Cheatham filed a controverting affidavit on February 8, 1955. On February 5, 1955, defendant Barrett filed a motion for costs. On February 9, 1955, the court granted appellant’s motion for costs.

The court held Barrett waived his plea of privilege by filing his motion for costs and said:

“Since, under the decisions here cited, appellant having exercised his right to invoke the rule for costs, he has by so doing, invoked the general jurisdiction of the District Court of Brazos County, and has thereby submitted himself to its jurisdiction and has waived the right to be sued in the county of his residence . . ”

We hold the appellant waived his plea of privilege by invoking the jurisdiction of the court on his motion to rule for costs.

This case is distinguishable from Talbert v. Miles, 477 S.W.2d 710 (Tex.Civ.App.—Waco 1972, no writ) relied on by appellant in that in Talbert there was no evidence the motion to rule for costs was submitted to the court for determination or that any action of any nature was taken on the motion by anyone after it' was filed.

In the case at bar, when the appellant filed his motion with an order attached for the judge to sign, the court had a duty to act on the motion.

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

The judgment is affirmed.