author: ROBINSON, Chief Justice.

text:
    In the Matter of the MARRIAGE OF Phyllis Carrie MURPHY and Billie Dee Murphy.
    No. 8844.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 23, 1978.
    Miller & Miller, John H. Tull, Jr., Amarillo, for appellant.
    Thomas W. Kendrick, Amarillo, Burrell B. Evans, Tulia, for appellee.
   ROBINSON, Chief Justice.

This appeal is limited to the portion of a judgment of divorce which awarded the wife a 4.73 acre tract of land in division of the community property. Appellant husband contends that the trial court erred in denying a motion to reopen the evidence nineteen days after the trial judge announced his decision. Affirmed.

Appellant filed a sworn inventory and appraisement on September 17,1975, listing both separate and community property. The 4.73 acre tract in question was the only property listed as community realty; two other tracts were shown as separate realty. At trial, November 9, 1976, appellant stipulated that the 4.73 acre tract was community property. The record shows that the tract was acquired during the marriage and payments were still being made on the tract at the time of trial. On November 17,1976, the trial judge sent a letter to counsel for the parties, informing them of his division of the property, specifically awarding ap-pellee wife the 4.73 acre tract as her separate property. Nineteen days later, on December 6, 1976, appellant filed a motion to reopen the evidence. He contended that he would show, inter alia, that the tract was actually his separate property, acquired by gift from his aunt. The motion was denied and judgment entered February 10, 1977.

Texas Rule of Civil Procedure 270 provides in part as follows: “At any time the court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice.” The standard of review in considering appeals based on Rule 270 is well settled:

The question of reopening a case for the purpose of admitting additional testimony is clearly within the sound discretion of the trial judge, and his action refusing to permit a party to reopen for such purpose should not be disturbed by an appellate court unless it clearly appears that such discretion has been abused.

Word v. United States Coffee & Tea Co., 324 S.W.2d 258, 262 (Tex.Civ.App. — Amarillo 1959, writ ref’d n. r. e.); Highlands Underwriters Insurance Co. v. Martin, 442 S.W.2d 770 (Tex.Civ.App. — Beaumont 1969, no writ). Furthermore, the discretion of the trial court is to be liberally exercised in the interest of justice. An improper exercise of discretion is prejudicial error. Canyon Credit Union v. Coleman, 450 S.W.2d 368 (Tex.Civ.App. — Amarillo 1970, no writ).

After reviewing the record before us we conclude that appellant failed to show diligence in producing the evidence he now seeks to offer and that the trial judge did not abuse his discretion in denying the motion to reopen. See Isenberg v. Isenberg, 510 S.W.2d 364 (Tex.Civ.App. — San Antonio 1974, no writ). The inventory was filed nearly fourteen months before trial and was signed by appellant. There is no evidence that appellant did not prepare the inventory. He testified concerning the very property in question and had ample opportunity to correct any mistake. Further, appellant’s motion to reopen was made almost three weeks after the court announced the property division by letter. In his motion, he did not explain his failure to discover any mistake before the judge’s letter announcing his decision, or show excuse for the delay in filing the motion to reopen the evidence. Appellant has not cited a case, and we have found none, holding that it is an abuse of discretion for a trial court to refuse to reopen the evidence on facts similar to those before us.

We have considered the evidence in the light most favorable to the judgment and conclude that there is some evidence of every fact necessary to support the judgment. We have considered all of the evidence including that opposing the judgment as well as that favorable to it and conclude that the evidence is factually sufficient to support the judgment. We do not find that the trial court abused its discretion in awarding the tract in question to appellee.

Each of appellant’s points of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    M. W. YARBOROUGH, Appellant, v. Neville BACK, Appellee.
    No. 8852.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 23, 1978.

      Culton, Morgan, Britain & White, William H. Brian, Jr., Amarillo, for appellant.
    Edwards & Associates, Thomas S. Hoeks-tra, Amarillo, for appellee.
   REYNOLDS, Justice.

The owner-lessor of a stallion recovered from the lessee a money judgment for the uninsured death of the stallion while in lessee’s possession under a written agreement. The determinative question is whether the evidence supports the presumed finding of the owner-lessor’s reliance on the lessee’s false representation of insurance coverage as an inducement to contract. We hold that there is no evidence of probative force in support of the presumed finding. Reversed and rendered.

Texas residents Neville Back, the owner of a sixteen-year-old stallion named Poco Pine Back, and M. W. Yarborough conversed in the spring of 1975 concerning Yarborough’s lease of the stallion. On or about 11 June 1975, Yarborough paid Back $2,000 and Back released Poco Pine Back to Yarborough’s son. Yarborough secured and mailed an attorney-prepared written agreement to Back, who had gone to New Mexico. Back signed and returned the agreement to Yarborough.

By the agreement, dated 26 June 1975 and executed by both parties, Yarborough leased Poco Pine Back for the balance of the year for the $2,000 paid with an option Yarborough could exercise before 1 January 1976 to purchase the stallion for $10,000, less the $2,000 paid for the lease. The agreement did not mention insurance.

Poco Pine Back died uninsured some four and one-half months after Yarborough took possession of him. No fault for the death is attributed to Yarborough.

Back grounded his suit on fraud, pleading false representations by Yarborough upon which he reasonably relied and by which he was induced to enter into the written contract. The representations pleaded were: Yarborough’s “telling Plaintiff [Back] that the stallion would be covered by insurance in the event of loss by death of the stallion;” and Yarborough told Back’s agent, when the contract was prepared without the insurance provision, “that the stallion was at that time already insured against loss by death for the amount of $25,000.00 by insurance purchased by Defendant [Yar-borough].”

The matter of insurance coverage was in dispute at the trial before the court. Back testified that insurance was discussed before the agreement was finalized, and that he would not have agreed to lease Poco Pine Back if Yarborough had not told him “that he was going to get insurance on the horse.” Yarborough testified that the first time insurance was mentioned was after the signed agreement was sent back to him; that Back requested insurance and Yarbor-ough said he would turn it over to his insurance agent to see if he could get the horse insured.

There is Back’s testimony that he wanted $8,000 insurance made in his name, and Yarborough said he would get -insurance, before Poco Pine Back was released to Yar-borough. Yet, Back released the stallion on or about 11 June 1975 to Yarborough’s son after the son “told me his daddy was having his insurance agent work on it [the insurance].”

Back developed testimony that when he received the written agreement in New Mexico, he called his granddaughter, who was taking care of his ranch in Texas, and asked about the insurance. She then talked with Yarborough over a period of some two weeks. Yarborough first told her his insurance agent was working on it and then told her the horse was insured for $25,000. She reported to Back. However, Yarborough denied that he ever said the horse was insured.

Back was not asked, nor did he state, specifically whether he signed the written agreement before or after he was told the stallion was insured. His only testimony in this regard was developed in cross-examination as follows:

Q. When you noticed in the lease agreement that there wasn’t any mention of insurance, why did you sign it?
A. I had talked to my granddaughter at home and she had talked to him, and he assured her he was working on getting the insurance.

The parties stipulated that Yarborough attempted to get insurance. It was Yarbor-ough’s testimony that his insurance agent was unable to find a company that would insure Poco Pine Back.

To be entitled to judgment on his pleadings, Back had the burden to prove and secure findings, either express or presumed, that he was induced by fraud on the part of Yarborough to enter into the written contract. See Dallas Joint Stock Land Bank of Dallas v. Harrison, 138 Tex. 84, 156 S.W.2d 963, 967 (1941). Preliminarily to rendering judgment for Back in the amount of $6,000, the trial court advised counsel by letter of “conclusions” made from the testimony. The parties dispute whether the “conclusions” constitute findings of fact; but, in any event, the court expressed no finding on reliance. Nevertheless, an essential element of fraud is that the false statement(s) must have been relied upon. Davidson v. Commercial Nat. Bank of Brady, 59 S.W.2d 949, 953 (Tex.Civ.App. — Austin 1933, writ ref’d).

At the outset, it must be noted that the first pleaded representation by Yarborough “that the stallion would be covered by insurance” (emphasis added) is nothing more than a promise to be performed in the future. At such, it does not constitute actionable fraud even if it was made to induce a contract and thereafter was not fulfilled, Cassel v. West, 98 S.W.2d 437, 439 (Tex.Civ.App. — Amarillo 1936, writ ref’d), unless the promise was made with a present intention not to perform. Stanfield v. O’Boyle, 462 S.W.2d 270, 272 (Tex.1971). Of course, the failure to fulfill the promise does not, by itself, even raise the issue of a present intention not to perform, Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118, 119 (1943), which is completely negated by the stipulation that Yarborough attempted to secure insurance.

The query, then, is whether there is any proof that Back contracted in reliance on the pleaded false representation “that the stallion was at that time already insured” (emphasis added). Neither Back nor anyone else testified that he relied on that representation in entering into the contract. The only evidence directly bearing on the matter is Back’s testimony quoted above, the sense of which is that he signed the agreement because his granddaughter had been assured that Yarborough “was working on getting the insurance.” This testimony is neither evidence of probative force, nor the proper basis for a reasonable inference, that Back entered into the contract through reliance on the representation that Poco Pine Back was then insured.

There being no evidence in support of an essential element of the pleaded cause of action, a take-nothing judgment should have been rendered.

By their briefs, the parties have joined the issue whether the judgment is sustainable on the theory of breach of contract. In lieu of an extended discussion of the diverse positions taken, it suffices to state that Back, having pleaded only fraud, cannot recover on the unpleaded ground of breach of contract. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, 132 (1942).

The judgment of the trial court is reversed, and judgment is here rendered that Neville Back take nothing by his cause of action asserted against M. W. Yarborough. Rule 434, Texas Rules of Civil Procedure.


author: O’QUINN, Justice.

text:
    Robert D. BULLOCK, Comptroller of Public Accounts, Appellant, v. FIRESTONE TIRE AND RUBBER COMPANY, Appellee.
    No. 12633.
    Court of Civil Appeals of Texas, Austin.
    Jan. 25, 1978.
    Rehearing Denied Feb. 8, 1978.

      John L. Hill, Atty. Gen., Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellant.
    Joe R. Greenhill, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for ap-pellee.
   O’QUINN, Justice.

Robert D. Bullock, Comptroller of Public Accounts, appearing through the Attorney General, appeals from judgment of district court of Travis County awarding Firestone Tire and Rubber Company recovery of $79,-616.33 in taxes, with penalties and interest, paid on new shock absorbers and their installation by Firestone on automobiles of its customers.

We will reverse judgment of the trial court and render judgment that Firestone take nothing by its suit to recover the taxes.

Firestone brought this suit under authority of Article 20.10(H), Title 122A, Taxation-General, V.A.T.S., claiming illegal assessment of the taxes, under the contention that Firestone qualifies as “lump-sum repairman” pursuant to Article 20.01(T), in that replacement of shock absorbers is a repair service involving necessary and incidental incorporation of tangible personal property belonging to Firestone into the customer’s automobile.

The position of the Comptroller is that installation of shock absorbers is performed to achieve sale of shock absorbers, and that the sales tax is due on sale price of the absorbers charged to the customer. The Comptroller also contends that charge for the shock absorber properly should be stated separately from cost of labor for installation, failing in which the tax becomes due on the combined cost.

The suit was tried before the court on stipulated facts. Firestone operates approximately one hundred retail stores in Texas, engaged primarily in selling tires and, secondarily, “related automobile accessories.” About half of the shock absorbers sold by Firestone during the tax period of 1970 through 1973 were purchased locally from independent suppliers. Firestone instructed its stores to pay the sales tax directly to the suppliers at the time of purchase.

The remaining one-half of absorbers Firestone purchased for delivery to its automobile supply warehouses, for ultimate delivery either to independent Firestone dealers or to the Firestone retail stores. The shock absorbers in this class were purchased under a “resale certificate,” authorized under Articles 20.021(F) and (G). This relieved the seller from paying the sales tax on property purchased for the purpose of reselling in the regular course of business, or because the purchaser was unable to ascertain whether the article would be resold or used for some other purpose.

The jhock absorbers acquired under the latter method were installed in the “repair shop area” of the retail stores where general service and maintenance work was done. It was stipulated that to repair faulty or worn-out absorbers is impractical, and for that reason they are replaced with new “shocks.” Installation requires hoisting the automobile above the floor of the shop to permit attaching the front shock absorbers to the A-frame section of the automobile, usually by three screws. Rear shock absorbers are attached to the differential in the same manner, by use of an air wrench.

The shock absorbers, thus installed, it was stipulated, become “. . . physically incorporated into the automobile, thereby helping the automobile to be restored to its original condition.” Significance of this stipulation will be examined below in discussion of the Comptroller’s Rule No. 95-0.-09A.

Firestone did not collect sales and use taxes from the customer when shock absorbers were installed on the automobile of a customer on the lump sum price charged for both labor and material; nor was a tax collected on the price representing material alone. Firestone instead either paid the tax to the local supplier on purchasing the shock absorbers, or paid the tax directly to the state, based on cost to Firestone, when Firestone gave a resale certificate at the time of purchase.

The record shows that Firestone followed this procedure under the belief that Firestone was a “repairman” under definition of the term in Article 20.01(T)(1):

“Contractor or Repairman. ‘Contractor’ or ‘Repairman’ shall mean any person who performs any repair services upon tangible personal property who, as a necessary and incidental part of performing such services, incorporates tangible personal property belonging to him into the property being so repaired and improved. Contractor or repairman shall be considered to be the consumer of such tangible personal property furnished by him and incorporated into the property of his customer .
(1) The above provision shall apply only if the contract between the person performing the services and the person receiving them contains a lump sum price covering both the performance of the services and the furnishing of the necessary incidental material.” (Emphasis added)

Under belief that in following this procedure it was acting as a repairman within the meaning of the statute, Firestone paid the sales and use tax on shock absorbers as a consumer. The Comptroller insists that Firestone did not thereby qualify as a repairman and a consumer of the property, but was a retailer and therefore liable for payment of the tax. Since Firestone charged a lump sum rather than separate its charges for labor, the Comptroller contends it was proper to assess a tax on the total figure charged the customer.

The single point of error urged in behalf of the Comptroller is that the trial court erred as a matter of law in holding that Firestone was a repairman within the statutory definition. The parties have joined issue on this question alone. The question to be decided is whether Firestone incorporated the shock absorbers into the automobile as a necessary and incidental part of performing repair services in order to qualify as a “repairman.” No Texas court has considered and passed on this point, and no traceable pattern of decision appears to run through all, or even many, of the cases from other jurisdictions. See 68 Am.Jur.2d Sales and Use Taxes, sec. 92, p. 38 (1973).

We find in decisions by the Supreme Court of Alabama guidelines we consider logical and well-reasoned from facts and law closely resembling the principles involved in this appeal. The Alabama court in 1937 compared (a) use of new automobile parts, accessories, tires, batteries and the like in refitting of automobiles and (b) consumption of material and supplies, such as paints, lubricants, or minor supplies consumed in the rendition of service or labor for the customer. Doby v. State Tax Commission, 234 Ala. 150, 174 So. 233 (1937). In the latter situation, where tangibles were said to be consumed, the materials and supplies the court said were furnished as an incident to the service and therefore treated as part of the service. But in the first situation of refitting automobiles with batteries, tires, parts and accessories, the parts and equipment passed substantially intact to the customer and were installed in place in the repaired automobile for the use of the customer. 174 So. 236.

The court’s language in Doby, that the supplies must be furnished as an “incident” to the service, is noticeably similar to the language of Article 20.01(T) requiring the property to pass as a “necessary and incidental” part of the repair before the tangible escapes taxation. Consonant with these concepts is Comptroller Rule No. 95-0.09A which construes Article 20.01(T). The Rule states, “A repairman is any person who restores tangible personal property to its original condition and who, in performing such repairs, incorporates tangible personal property belonging to him into the property being repaired.” The property thus incorporated in the process of repair, so that it escapes taxation, is defined later in the Rule as “consumable supplies and equipment,” which are “physically incorporated into the property of the customer.”

Subsequent to decision in Doby, the Alabama court reaffirmed the legal principles there stated in another tax case involving a similar problem. Cody v. State Tax Commission, 235 Ala. 47, 177 So. 146 (1937). In the later decision the court stated, “. . . when the operator of an automobile repair shop sells an article or part for a car, it is a retail sale, and the tax must be paid by him, though he also installs the part in the car.” The court held that “. when the shop operator uses and consumes material in repair work and reconditioning cars of his own or for others, or uses parts in reconditioning his own secondhand cars for sale, he is in that respect a consumer, not a retailer, and the tax is upon the sale to him, since there is no sale by him.” (Emphasis added) 177 So. 148.

The rational distinction between the two types of transactions, tangibles that are used in refitting operations and tangibles consumed in repairing operations, which the court considered in Cody, may be found reasonably embodied in the scheme of the Texas sales and use tax statutes. Article 20.01(L)(3)(g) excludes from the sales price, on which the tax is based, “the amount charged for labor or services rendered in installing . . . the tangible personal property sold.” It is clear from this statute, first, not all refitting operations in which the part is physically attached or installed were intended to be “repairs,” since the statute anticipates imposition of a sales tax, and, second sale of an article or part for an automobile could be subject to the sales tax even though the repair shop operator installs the part in the car, as under the facts of Cody.

The Comptroller’s Ruling states that the property must be “physically incorporated into” the subject, obviously a stricter requirement than mere “installation.” It follows that “property physically incorporated” would be the equivalent of “supplies and material consumed” described in Cody, in contradistinction to the simple physical attachment involved in installation which results in passing parts and equipment “substantially intact to the consumer,” in the language of Doby.' This solution is strengthened further by the fact that the Ruling defines the property escaping taxation as “consumable.”

As noted earlier, the parties stipulated that by installing the shock absorbers, Firestone “physically incorporated them into the automobile.” The court is bound by the intent of the Legislature as found in the statute, and it must be assumed that all parts of the statute have meaning and purpose and that the Legislature did not intend to do a vain and foolish thing by including certain portions of the Act. For the court to hold that installation by Firestone of the shock absorbers was the type of physical incorporation envisioned by the Legislature in passing Article 20.01(T) would encompass virtually every “installation” as being “physical incorporation” in the nature of “repair,” a result rendering meaningless and ineffectual Article 20.01(L)(3)(g) which excludes from the sales price the amount charged for installation.

We conclude that the installation or attaching of shock absorbers was not a process or transaction under the facts of this case placing Firestone in the category of “repairman” under Article 20.01(T), and that the trial court erred in so holding. The judgment of the trial court is reversed, and judgment is rendered that Firestone take nothing by its suit for tax refund.

Reversed and Rendered.


author: JAMES, Justice.

text:
    Raymond BRINK, Appellant, v. Ted WEAVER, Appellee.
    No. 5779.
    Court of Civil Appeals of Texas, Waco.
    Jan. 26, 1978.
    Stuart C. Hollimon and John H. Marks, Jr., Strasburger & Price, Dallas, for appellant.
    Arlen D. Bynum and Louis J. Sandbote, Bradshaw & Bynum, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a venue case involving Subdivision 9a of Article 1995, Vernon’s Texas Civil Statutes. Plaintiff-Appellant Raymond Brink and Rondy Giescke brought this suit in Navarro County against Ted Weaver, a resident of Freestone County, for damages for personal injuries allegedly sustained by Plaintiffs when the truck they were operating collided with a cow owned by Defendant Weaver. Plaintiffs alleged several acts of negligence on Defendant’s part, including Defendant’s failure to maintain adequate fences to keep his cattle from going upon the highway (Interstate 45), and his failure to keep the cow in question within such fences, each of such grounds of negligence being alleged to be a proximate cause of the accident and injuries in question.

Defendant filed a plea of privilege to move the cause to Freestone County, the county of his residence. Plaintiffs controverted under Subdivision 9a, Article 1995. The trial court after hearing sustained Defendant’s plea of privilege and ordered the cause transferred to Freestone County, from which action the Plaintiff Raymond Brink appeals. We affirm.

Appellant asserts a single point of error as follows: “The District Court erred in sustaining Appellee’s Plea of Privilege because the evidence established as a matter of law that there was causative negligence in Navarro County on the part of Appel-lee.” We overrule this point of error.

Then in the argument portion of Appellant’s brief, Appellant asserts that the trial court’s implied findings to the effect that Defendant-Appellee was guilty of no causative negligence are so against the great weight and preponderance of the evidence as to be manifestly unjust, under the rule announced by our Supreme Court in In re King’s Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660. In our evaluation of this last-named contention of Appellant we have considered the entire record and weighed the evidence both in favor of and against Appellant, and likewise overrule this contention. In summary, we are of the opinion and hold that the trial court’s implied findings of no causative negligence on Defendant-Appellee’s part are amply supported by the evidence, and that such findings are not against the great weight and preponderance of the evidence under the In re King’s Estate test.

On March 13, 1975, at about 5 o’clock A.M., Plaintiff-Appellant Raymond Brink was driving a tractor-trailer on Interstate 45 in Navarro County, with Plaintiff Rondy Giescke as co-driver in the truck with him; whereupon the tractor-trailer collided upon said highway with a cow belonging to Defendant-Appellee Ted Weaver. As a result of the accident both Plaintiffs suffered substantial personal injuries. The accident scene was adjacent to property owned by the Defendant.

Defendant, after the accident, definitely traced the tracks of the cow in question back across his property and through two water-gap fences which had been knocked down by extraordinary rains which fell on the day before the accident. The evidence was to the effect that Defendant had experienced his cattle escaping from this and other locations across a water-gap fence or fences close to the highway on prior occasions.

However, on the occasion with which we are concerned, the cow in question was in a pasture located about two miles from the accident scene, wherein were contained about one hundred head of cattle. This particular pasture was enclosed by a good substantial barbed-wire fence which was constructed in a manner in keeping with other cattle enclosures in that locality.

At about midday (noon) of March 12', 1975, the day immediately preceding the accident, Defendant Weaver personally inspected the pasture containing the 100 head which included the cow in question, after most of the heavy rains had fallen. There was nothing about the fences which enclosed these cattle which would indicate that any of these cattle could escape from this pasture. This pasture, as stated, was about two miles from the scene of the accident.

Then, on this same occasion, Defendant Weaver inspected the creek which ran through his land, which creek crossed Interstate Highway 45 near the accident scene. Weaver had two water-gap fences which crossed this creek. At this particular time of Weaver’s inspection, the 30 foot wide creek bed was filled with water, and the water was overflowing out of its banks, and the two water-gap fences were under fifteen to twenty feet of water.

Weaver testified, and it is undisputed, that for this particular cow in question to get to the accident scene, it had to go through three fences, first, to get out of the pasture where it was on noon the day before, and then through the two water-gap fences. Of course after the rains subsided and the creek went down, it is easy to see that the cow could and did walk through the two water-gap fences that had been knocked down, so as to get upon the highway.

However, there is no evidence of any kind to show or explain how the cow escaped from or got out of the pasture that it started from. In other words, there is no showing in any manner by Plaintiffs of negligence on Defendant’s part concerning how this cow got out of this well-fenced pasture.

In order to establish venue against a non-resident defendant under Subdivision 9a, Article 1995, the plaintiff has the burden of pleading and proving by a preponderance of the evidence that the defendant was guilty of an act or omission constituting negligence in the county where the suit is pending, and that such negligence was a proximate cause of plaintiff’s injuries. Spoon v. Penix (Tex.1967) 422 S.W.2d 167.

The trial court was authorized to believe Defendant Weaver’s testimony concerning the itinerary the cow had to travel to get from the pasture of origin to the accident scene, and there is no evidence in the record to the contrary. In short, the Plaintiffs failed to meet their burden to establish venue in Navarro County, and therefore the trial court did not err in sustaining the Defendant’s plea of privilege to be sued in Freestone County.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


text:
    Johnsie Jo POSEY, Appellant, v. Liston R. POSEY, Appellee.
    No. 5803.
    Court of Civil Appeals of Texas, Waco.
    Jan. 26, 1978.
    Rehearing Denied Feb. 23, 1978.

      L. L. Geren, Bradley & Geren, Groesbeck, for appellant.
    Bobby Reed, Cannon, Cannon & Reed, Groesbeck, for appellee.
   OPINION

JAMES, Justice.

This is a divorce case. Petitioner-Appel-lee Liston R. Posey, age 63, sued his wife Respondent-Appellant Johnsie Jo Posey, age 52, for divorce and division of property. The parties had four children, all over 18 years of age. The parties had been separated about five years at the time the suit was filed, Mrs. Posey having gone in 1971 to the State of Louisiana to teach school, where she has since resided. After hearing, the trial court granted a divorce to the parties and made the following division of “the community and separate property of the parties”:

I.To Petitioner-Appellee Liston R. Po-sey:

1. Five lots upon which a residence house was situated, located in Mexia, Texas, subject to an equitable lien to be impressed thereupon as security for his note to Mrs. Posey should he elect to forego payment of the $5000.00 in cash as set out in the award to her.

2. Any commemorative coins in his possession.

3. A 1966 Plymouth car, a 1966 Chevrolet pickup and a 1963 Plymouth car (the last-named car would not run).

4. All the funds on deposits in back accounts standing in his name and all funds on deposit to his account in the U. S. Postal Service Retirement Plan as well as any future benefits he may have accrued to him.

5. The U. S. Marine Corps Retirement Benefits growing out of. his 21 years service in the Marine Corps, subject to $5000.00 to be paid by Mr. Posey to Mrs. Posey.

II. To Respondent-Appellant Johnsie.Jo Posey:

1. All funds on deposit in her Louisiana Teachers Retirement and any future benefits to be derived therefrom.

2. The residence home located in Baton Rouge, Louisiana, together with all the furniture and furnishings therein, with her assuming the indebtedness on same.

3. All the “netsukes” (oriental ivory carved objects) in her possession except one, which was awarded to Mr. Posey.

4. A 1971 Chrysler car in her possession, with her assuming the indebtedness on same.

5. Any cash on deposit in her name.

6. $5000.00 to be paid by Mr. Posey to Mrs. Posey in lieu of her interest in the U. S. Marine Corps Retirement hereinabove referred to. Mr. Posey was given the option to pay this to her in cash within 30 days or make her a $5000.00 note bearing interest at 7% per annum payable in monthly installments of $125.00 each of principal including interest, such note to be secured by an equitable lien to be impressed upon the Mexia lots and house awarded to him as hereinabove pointed out.

7.75 acres of land located near Doyle in Limestone County, which Mrs. Posey inherited through her people.

From this judgment Mrs. Posey appeals upon 18 points of error which may be grouped for convenience and discussion under three categories, to wit:

(1) The trial court erred in finding that Petitioner Mr. Posey resided in Limestone County for 90 days prior to the filing of his suit for divorce, because there is no evidence (legal insufficiency) and insufficient evidence (factual insufficiency) to support such finding.

(2) The trial court abused its discretion in making a property division between the parties.

(3) The trial court erred in refusing to admit the testimony offered by Appellant (except upon a bill of exception) on the motion for new trial concerning Petitioner-Appellee’s residence during the 90 days immediately preceding Petitioner’s filing of this suit.

We overrule all of Appellant’s points and contentions and affirm the trial court’s judgment.

We revert to Appellant’s first and third group of points, to wit, to the effect that the trial court erred in finding that Petitioner-Appellee was a bona fide resident of Limestone County for 90 days immediately preceding the filing of this suit by Petitioner-Appellee Mr. Posey.

Mr. Posey filed this suit on April 6, 1976; therefore, the 90 days in issue concerning his residence was from January 6, 1976 tp April 6,1976. He pleaded that he had been a resident of Limestone County for the 90 days preceding the filing of his petition. Then at the divorce trial he testified that he had resided at 509 North McKinney Street in Mexia, Limestone County, since 1961; that he had been a resident there for the 90 days preceding the filing of the suit; that Mexia was his permanent place of residence; that he had a phone listed in the Mexia directory; that he got his mail at a Mexia address; and did his banking in Me-xia. He further testified that he had been temporarily staying with his mother in Navarro County because of her eye trouble, but that he considered Mexia as his permanent residence.

At the divorce trial Appellant Mrs. Posey never at any time presented any evidence contrary to the testimony above-recited by Appellee, nor did she in any manner deny Mr. Posey’s testimony concerning his residence in Limestone County.

On the motion for new trial Appellant Mrs. Posey offered witnesses from the utility companies to the effect that only the minimum gas, electricity, and water were used in the Mexia home place for at least the 90 days before the filing of suit. Also Appellant sought to offer other witnesses in an attempt to show that Mr. Posey had been spending his nights with his mother in Navarro County during the 90 days in controversy. The trial court refused to admit this proffered testimony, but permitted Appellant to offer it upon a bill of exception.

In our opinion the trial court did not err in excluding this evidence proffered by Appellant on the hearing on the motion for new trial. In the first place, a temporary absence from the county of a plaintiff who is an inhabitant of the State during the 90 days next preceding the filing of his petition for divorce does not affect his right to maintain his suit for divorce. See Haymond v. Haymond (1889), 74 Tex. 414, 12 S.W. 90; Bomar v. Bomar (Dallas Tex.Civ.App.1950), 229 S.W.2d 859, no writ; Stacy v. Stacy (Waco Tex.Civ.App.1972), 480 S.W.2d 479, 482, no writ; Meyer v. Meyer (Austin Tex.Civ.App.1962), 361 S.W.2d 935, writ dismissed; 20 Tex.Jur.2d “Divorce and Separation,” par. 67, pp. 411, 412.

Secondly, the evidence proffered by Appellant in the hearing on the motion for new trial constituted newly discovered evidence. The applicable rule of law for a new trial to be based on the grounds of newly discovered evidence is set out in 41 Tex. Jur.2d, “New Trial,” Sec. 105, p. 253:

“Evidence discovered subsequent to trial is a proper ground of a motion for new trial in both civil and criminal eases. To justify the grant of a new trial it generally must be shown that the evidence was unknown to the movant before the trial, that his failure to discover it was not due to his want of diligence, that its materiality was such as would probably bring about a different result on another trial, and, generally, that it was competent, and not merely cumulative, corroborative, collateral, or impeaching.

“Motions for new trial on the ground of newly discovered evidence are not favored by the courts, and are received with careful scrutiny.”

Also, see Dillingham v. Lynch (Austin Tex.Civ.App.1974), 516 S.W.2d 694, 701, NRE; Gonzales v. Diaz (El Paso Tex.Civ.App.1968), 424 S.W.2d 314, 315, no writ.

In the hearing on the motion for new trial, Appellant Mrs. Posey admitted that the proffered newly-discovered evidence was either known by her or available to her at the time of the divorce trial. We have carefully examined this proffered evidence, and without detailing same, suffice it to say that it is merely cumulative of the evidence presented at the divorce trial, and largely corroborates and strengthens such evidence.

With reference to the trial court’s division of the property, Appellant asserts the trial court abused its discretion. Among other things Appellant particularly claims that the home place in Baton Rouge, Louisiana, and her Louisiana Teachers Retirement Fund awarded to her were her separate property under Louisiana law, and she presented Louisiana authorities to support this contention.

We do not express any opinion upon the question of whether this home place and retirement fund have a separate or community property status, because in either event we are of the opinion that the trial court did not abuse its discretion in the property division made. Without detailing the values of the respective items of property awarded to each party, such division appears to have worked substantial justice to the parties, in view of the fact that each party was earning close to the same amount of money, in view of the age and health of the parties, and all other surrounding circumstances shown by the evidence.

It is well settled that the trial court has broad discretion in determining the disposition of property in divorce actions, and this discretion will not be disturbed unless an abuse of discretion is shown. That is to say, the trial court’s action should be disturbed on appeal only when an abuse of discretion is shown in that the division made is manifestly unjust and unfair. Section 3.63, Texas Family Code; Hedtke v. Hedtke (1923), 112 Tex. 404, 248 S.W. 21, which holds that the trial court’s discretion applies to dividing property which is separate as well as community property; Carle v. Carle (1950), 149 Tex. 469, 234 S.W.2d 1002; Bell v. Bell (Tex.1974), 513 S.W.2d 20; McKnight v. McKnight (Tex.1976), 543 S.W.2d 863. Also see Fortenberry v. Fortenberry (Waco Tex.Civ.App.1976), 545 S.W.2d 40, 42, no writ, and Smallwood v. Smallwood (Waco Tex.Civ.App.1977), 548 S.W.2d 796, 797, no writ.

There is no requirement under the above-stated rules that the trial court divide the property equally between the parties, Hedtke, supra; on the contrary, the trial court is required to view the case in its entirety in making a division that is just and right between the parties.

We have carefully considered all of Appellant’s points and contentions, and overrule same.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


text:
    Laura Ann BUSH et vir., Appellants, v. Edward Jefferson COOLEY et ux., Appellees.
    No. 5809.
    Court of Civil Appeals of Texas, Waco.
    Jan. 26, 1978.
    Rehearing Denied Feb. 23, 1978.
    Charles M. McDonald, Clark, Fisher, Go-rin, McDonald & Ragland, Waco, for appellants.
    Raymond T. Palladino, Waco, for appel-lees.
   OPINION

JAMES, Justice.

This is a child custody case. This litigation began on March 19, 1976, when Appellant Laura Ann Bush (then Laura Ann Cooley), the natural mother of the two children involved, filed a petition for divorce against David Edward Cooley, the natural father of said children. By her petition Appellant sought full custody of the parties’ minor children to wit, David Edward Cooley, Jr., a boy then 13 years of age, and Laurie Lee Cooley, a girl then 11 years of age.

Upon trial had on or about June 3,1976, a decree of divorce was granted to Appellant and a division of the property belonging to the parties was made, none of which is now in issue or part of this appeal. In addition, the trial court found that it was to the best interest of the two children that their paternal grandparents, (Appellees herein) Edward Jefferson Cooley and wife Lillie Inez Cooley, of Route 1, Hawley, Texas, (near Anson, Texas) be appointed managing conservators, and the court so ordered. Further, the trial court designated the children’s mother and father as possessory conservators and granted them visitations of and with said children at reasonable times and places. Then the trial court further provided that the managing and possessory conservatorships would be reviewed on August 6, 1976, at 2 P.M., and again reviewed on June 3, 1977, at 2 P.M.

At the August 1976 hearing, the trial court continued the custody of the children in Appellees, the paternal grandparents, but granted the Appellant mother specific visitation with her children on every other weekend “from 10 o’clock A.M. on Saturday until 5 o’clock P.M. on Sunday, with twenty-four (24) hours advance notice of intent to exercise visitation. If twenty-four (24) hours advance notice is not given then it will be assumed that the party does not wish to exercise visitation at the time designated.”

At the final custody hearing on June 9, 1977, the father, David Edward Cooley, made no appearance, but the Appellants (the mother Laura Ann Bush and her then husband B. J. Bush) and Appellees, (the paternal grandparents) appeared and the matter proceeded to trial, after which the judgment appealed from was entered. Such judgment awarded the managing con-servatorship of the two children to Appel-lees, and fixed the Appellant mother’s visitation rights as a possessory conservator as follows:

“Every other weekend from 10 o’clock A.M. on Saturday until 5 o’clock P.M. on Sunday. Laura Bush (Appellant) must give notice in writing, delivered certified mail, return receipt requested, of her desire to exercise visitation, and that notice is to be received by the Cooleys on or before the Tuesday prior to the Saturday in which visitation is to be exercised. The children, at the times prescribed above, are to be delivered to the Jones County Sheriff’s Office in Anson, Texas, at which time they will be delivered to Laura Ann Bush. Except however, if Laura Ann Bush or anyone in her company have been consuming alcoholic beverages, then the Cooleys shall have the right to refuse to permit the children to leave their custody and refuse visitation to Laura Ann Bush. The children are to be returned at the times prescribed above by bringing said children to the Jones County Sheriff’s Office for delivery to the Cooleys. If Laura Ann Bush fails to give notice of her desire to visit with the children as conditioned above, then it will be assumed that Laura Ann Bush does not wish to exercise visitation as designated. This is in addition to all other rights and privileges as the parties may agree to.”

Appellant Laura Ann Bush, the natural mother, appeals from the trial court’s order hereinabove quoted from, as entered pursuant to the June 1977 hearing, on seven points of error. Such points assert there is no evidence, and insufficient evidence to support a finding by the trial court that it would not be in the best interest of the children for their custody to be placed in their mother, that the trial court abused its discretion in denying Appellant as mother the custody of the children, and that Appel-lees failed to overcome the presumption that the best interest of the children would be served by awarding their custody to Appellant. Moreover, Appellant contends the order amounts to a denial to Appellant of her rights to visit her children, that the order is unreasonable, unworkable, and an unlawful delegation of the trial court’s authority to fix Appellant’s visitation rights. We overrule all of Appellant’s points and contentions and affirm the trial court’s judgment.

Article 14.01(b), Texas Family Code, in its pertinent parts provides:

“A parent shall be appointed managing conservator of the child unless the court finds that appointment of the parent would not be in the best interest of the child.”

Article 14.07(a), Texas Family Code, in its pertinent parts, provides:

“The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.”

Article 14.08, Texas Family Code, dealing with modification of orders, subsection (c) in its pertinent parts provides:

“(e) After a hearing, the court may modify an order or portion of a decree that:
“(1) designates a managing conservator if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child; or
“(2) provides for the support of a child, sets the terms and conditions for access to or possession of a child, or prescribes the relative rights, privileges, duties, and powers of conservators if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree; — .”

As stated, Appellees, the paternal grandparents were appointed managing conservators by the court at the time the divorce was granted on June 7, 1976, and at or about that time the children went to live with Appellees. Thereafter in August 1976, after a second hearing wherein the custody and visitation matters were reviewed, the trial court continued to vest the managing conservatorship in Appellees, with specified visitation privileges awarded to Appellant. Then after the hearing held in June 1977, the trial court for the third time reviewed the custody and visitation matters and decided that the best interest of the children demanded that their principal custody be vested in Appellees, with visitation rights being awarded to Appellant similar to that of the second hearing, with a tightening of conditions thereupon. In summary, the children have been in the home and under the managing conservatorship of Appellees since June 1976, and the problem before us is whether the trial court abused its discretion in modifying and changing the order theretofore made by said court of August 1976. Paraphrasing the statute, Article 14.-08(c)(1), the trial court in deciding whether to change the principal custody from Appel-lees to Appellant, was confronted with this question: “Have the circumstances so materially and substantially changed since the entry of the order to be modified (of August 1976) that the retention of the Appel-lees as managing conservators would be injurious to the welfare of the children and the appointment of Appellant as the new managing conservator would be a positive improvement for the children?” We are of the opinion and hold that the trial court did not abuse its discretion in making the order appealed from.

As we understand Appellant’s contention in her first four points of error, she asserts the burden of proof was upon Appellees to prove that it was not in the best interest of the children for them to be placed in Appellant’s custody, in order to enable the court to make Appellees the managing conservators, since Appellees were not natural parents of the children. We do not agree.

The presumption is that the best interest of the children will be served by awarding them to the natural parent, but this is a rebuttable presumption, and here it is not necessary that Appellees (as third parties) prove that the natural parent is disqualified by immorality or misfortune. Dunn v. Jackson (Com.App. 1921) 231 S.W. 351, approved; Taylor v. Taylor (Waco Tex.Civ.App. 1931) 42 S.W.2d 455, no writ; Ham v. Cavette (Houston 1st Tex.Civ.App. 1962) 357 S.W.2d 438, NRE.

The trial court is afforded a wide discretion in child custody cases, and its judgment will not be disturbed on appeal unless a clear abuse of discretion is shown. Ex Parte Eaton (1952) 151 Tex. 581, 252 S.W.2d 557; Taylor v. Meek (1955) 154 Tex. 305, 276 S.W.2d 787; Herrera v. Herrera (Tex. 1966) 409 S.W.2d 395, 396; Renfro v. Renfro (Waco Tex.Civ.App. 1973) 497 S.W.2d 807, no writ; Gibson v. Hines (Waco Tex.Civ.App. 1974) 511 S.W.2d 546, no writ; Adams v. Adams (El Paso Tex.Civ.App. 1975) 519 S.W.2d 502, no writ.

Here the Appellant is asserting as error the refusal of the trial court to change the principal custody from Appellees to her. Because a change of custody disrupts the children’s living arrangements and the channels of the affections of the children, a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the children. See Taylor v. Meek (1955) 154 Tex. 305, 276 S.W.2d 787, and the cases therein cited at page 790.

In the case at bar, there is a lot of conflicting evidence; however, these salient facts appear from the record as a whole: Appellees the Cooleys own about 600 acres of land upon which they reside in Jones County at Route 1, Hawley, Texas. Mr. Cooley is 68 years old and Mrs. Cooley is 64 years old, and both appear to be in good health. Mr. Cooley farms about 1000 acres, and the boy when not in school helps his grandfather with plowing and other farm work. The Cooleys have a comfortable spacious farm home where the boy and the girl each has a private bedroom. Both children are doing passable work in school and take part in normal teenage school activities. Both children are well-adjusted, although they do enjoy being with and seeing their mother. Their father lives in the vicinity of Appellees’ home. When the boy was asked where he preferred to be, he testified: “Well, if I could see mom anytime I wanted to I’d like to stay out at Abilene (with Appellees) but I don’t know.” When the girl was interviewed by the trial court in chambers and was asked her preference she testified: “Well, I would like to stay with my grandparents but I want to have visitation with my mom.”

Shortly after the June 1976 hearing wherein the parents were divorced, Appellant Laura Ann Cooley married B. J. Bush, and shortly thereafter Mr. and Mrs. Bush moved to Big Spring, Texas, about 100 miles from Appellees’ home. While living there the Bushes operated a lounge or bar where alcoholic beverages and some food were served. The testimony showed that on some of the visits by the children with the Bushes, that the children spent some of their time at the lounge, and that the boy drank some beer on at least one occasion.

After Mrs. Bush was granted visitations on alternate weekends by the August 1976 order, she made trips to Appellees’ home every (alternate) weekend in which she was permitted to have the children; however, there was testimony that she was oftentimes late, and would come after 10 o’clock A.M. on Saturday sometimes as late as 4 or 5 o’clock P.M. Appellees testified that they were inconvenienced by Appellant’s unpredictable arrivals. There was also testimony that on some occasions in which she had come for the children that she had done so after she had consumed alcoholic beverages, and on one occasion Mr. Bush created a disturbance in Appellees’ home.

In the early part of 1977, the Bushes moved to Waco, Texas, and at the time of the third hearing they were living in a rented two-bedroom apartment. At the time of trial, Appellant was pregnant and was momentarily expecting the arrival of a child. The Bushes proposed that if Appellant was awarded managing conservator-ship, that they would give the boy and girl each a bedroom, and Mr. and Mrs. Bush would sleep in a type of rollaway bed in the other living quarters of the apartment.

Taking the record as a whole the trial court was justified in believing that the best interest of the children required that Appellees be kept on as managing conservators, and that Appellant’s visitation rights needed a tightening of conditions.

The matter of determining the frequency and duration of visits by a divorced parent with his or her children, who have been placed in the custody of another, as well as the limitations and safeguards to be placed upon such visits, is one peculiarly within the discretion of the trial court and is subject to review only on a showing of abuse of discretion. Hill v. Hill (Houston 1st Tex.Civ.App. 1966) 404 S.W.2d 641, 643, no writ; Walker v. Showalter (Houston 1st Tex.Civ.App. 1973) 503 S.W.2d 624, 626, no writ.

Here, we are of the opinion and hold that there is no abuse of discretion by the trial court shown, and that the limitations and safeguards placed upon Appellant’s visitations were reasonable and workable to meet the problems shown by the evidence. We therefore affirm the trial court’s judgment.

AFFIRMED.


author: McDONALD, Chief Justice.

text:
    Esteline Aleta McVICKER, Appellant, v. JOHNSON COUNTY, Texas, Appellee.
    No. 5861.
    Court of Civil Appeals of Texas, Waco.
    Jan. 26, 1978.
    Rehearing Denied Feb. 23, 1978.
    Lowell E. Dushman, Jack Friedman, Dushman, Greenspan & Friedman, Fort Worth, for appellant.
    Dan M. Boulware, County Atty., Jack C. Altaras, Altaras, Altaras & Pritchard, Cle-burne, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff McVicker from summary judgment she take nothing in a suit against Johnson County under the Texas Tort Claims Act (Article 6252-19 VATS), for the death of her husband and her personal injuries.

Plaintiff alleged that on June 10, 1975 at 5:10 A.M. she and her husband were driving their pickup truck west on County Road 705, just east of its intersection with the head of Buffalo Creek, in Johnson County, when the vehicle was swept off the crossing and propelled downstream by flooding waters of Buffalo Creek, causing injury to plaintiff and drowning her husband. Plaintiff alleged the crossing was hazardous and unsafe during periods of rainfall in the area; that the road would flood during such periods; and that defendant’s agents and employees knew of such. Plaintiff further alleged Johnson County through its officers and employees negligent in a number of particulars proximately causing her injuries, including: 1) Failing to provide a flood gauge at the crossing so that users could determine if the crossing was hazardous; and 2) Failing to install a warning sign or device at the crossing to warn of its dangerous condition.

Defendant answered by general denial; plead plaintiff and decedent were well acquainted with the road; assumed the risk by traveling the road when it was covered with water for several hundred feet; and that the condition of the road at the time of the occurrence was open and obvious.

Defendant thereafter moved for summary judgment, which the trial court granted, and rendered judgment plaintiff take nothing.

Plaintiff appeals contending “the trial court erred in granting defendant's motion for summary judgment”.

The Texas Tort Claims Act provides in part:

Sec. 3. “Each unit of government in this State shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office * * * or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this State. Such liability is subject to the exceptions contained herein, and shall not extend to punitive or exemplary damages”.

Sec. 18(b). “As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for use of the premises * * * ”.

The duty owed by licensor to a licensee on private property is not to injure him by willful, wanton or gross negligence. An exception to such rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. State v. Tennison, Tex., 509 S.W.2d 560; Sutton v. State Highway Dept., Tex.Civ.App. (Waco) NRE, 549 S.W.2d 59.

The record on summary judgment here consists of the pleadings, affidavits, motion for summary judgment, opposition to summary judgment, deposition of the plaintiff and 11 officers or employees of Johnson County.

Plaintiff plead a cause of action based on a “premises defect”. The depositions of employees of defendant reflect that some of them had knowledge of the dangerous condition existing on Road 705 at the Buffalo Creek crossing. The record on summary judgment does not conclusively show plaintiff or decedent had knowledge of the dangerous condition prior to the accident, or that the condition was open and obvious to them at the time they started to drive across.

Summary judgment should not be granted, and if granted should be affirmed only if the summary judgment proof establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., Tex., 450 S.W.2d 827. All burdens are on the moving party. Swilley v. Hughes, Tex., 488 S.W.2d 64. The party opposing the motion for summary judgment is not required to establish his right to prevail. Glenn v. Prestegord, Tex., 456 S.W.2d 901; Watts v. Everett, Tex.Civ.App. (Waco) NWH, 543 S.W.2d 14.

A jury could well have concluded from plaintiff’s deposition that she and her husband had knowledge of the dangerous condition, but such does not establish this as a matter of law.

Plaintiff’s contention is sustained.

REVERSED and REMANDED.


author: SPURLOCK, Justice.

text:
    DIAMOND OAKS TERRACE APARTMENTS and Margaret Byers, Appellants, v. Jerrie L. SPRAGGINS, Appellee.
    No. 17926.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 26, 1978.
    Day & Day and Bruce W. McGee, Fort Worth, for appellants.
    Patton & Gilfeather and Pete F. Gilfeather, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a suit for recovery of a security deposit and attorney’s fees brought by a tenant against an apartment complex and its resident manager under art. 5236c. In a nonjury trial, the court awarded the plaintiff $125 in damages and $150 in attorney’s fees. Defendants have perfected their appeal.

We reverse and remand in part and reverse and render in part.

The following constitute the statutory bases for the instant lawsuit.

Art. 5236e, § 3(a) provides in part:

“In the event actual cause exists for retaining all or any portion of the security deposit, the landlord shall return to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions. . ” (Emphasis added.)

Art. 5286e, § 4(b) provides:

“A landlord who in bad faith fails to provide a written description and itemized list of damages and charges pursuant to the requirements of this Act, forfeits all rights to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises and is liable to the tenant for reasonable attorney’s fees in a lawsuit to recover the security deposit.” (Emphasis added.)

Art. 5236e, § 4(c) provides:

“In any court action brought by a tenant under this Act, the landlord bears the burden of proving that his retention of the security deposit or any portion thereof was reasonable. In this court action the landlord is not liable for the penalty, treble damages, or attorneys fees referred to in Subsections (a) and (b) of this section unless the landlord is found, to have acted in bad faith. Failure to return a security deposit within 30 days or failure to provide a written description and itemization of deductions within 30 days is prima facie evidence and a presumption that the landlord acted in bad faith.” (Emphasis added.)

By their fourth point of error, the appellants contend that the “trial court erred by rendering judgment for plaintiff, . against defendant, Diamond Oaks Terrace Apartments, for the reason that plaintiff, Jerrie L. Spraggins, failed to meet her burden of proving a material portion of her case.”

The thrust of appellants’ argument is that the trial court did not make an affirmative finding that Diamond Oaks Terrace Apartments’ failure to provide the required list of deductions was in bad faith. Rather, the trial court found in Finding of Fact No. 9 that:

“The Court fails to find from a preponderance of the evidence that the failure of Defendant Diamond Oaks Terrace Apartments to provide Plaintiff Jerrie L. Spraggins with a written description and itemized list of damages and charges pursuant to the requirements of Article 5236e of Vernon’s Annotated Texas Statutes was not in .bad faith.” (Emphasis added.)

By this finding of fact, the trial court misplaced the burden of proof, which is quite understandable from a reading of art. 5236e § 4(c). By that section, the landlord only has the burden of proving that his retention of the security deposit was reasonable. This same section provides that the landlord is not liable unless he has been found to have acted in bad faith. In the case at bar, there is no affirmative finding that the Diamond Oaks Terrace Apartments acted in bad faith. This is an absolute requirement of the statute.

Tex.R.Civ.P. 299 provides in part:

“The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; but where one or more elements thereof have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment. . . .” (Emphasis added.)

We can not presume a finding of bad faith under Tex.R.Civ.P. 299, because this is not an instance of an “omitted unrequested element,” because of the trial court’s finding of fact no. 9.

We sustain appellant’s fourth point of error.

By their seventh point of error, appellants contend that “[t]he trial court erred in its conclusion that plaintiff, Jerrie L. Spraggins, have judgment jointly against defendants ... for the reason that its findings of fact and conclusions of law establish as a matter of law that there was no basis for such judgment.”

Plaintiff secured a judgment against the apartment complex and its resident manager, Margaret Byers. However, in conclusion of law # 7, the trial court concluded that:

“Margaret Byers, not being a landlord as defined in Article 5236e of Vernon’s Annotated Texas Statutes, is entitled to judgment that Plaintiff take nothing as to her.”

This conclusion of law is in direct conflict with the trial court’s judgment. Also, we agree that Margaret Byers is not a landlord within the meaning of art. 5236e, § 1(2), which provides:

“ ‘Landlord’ means the owner, lessor, or sublessor of a residential dwelling unit. ‘Landlord’ also includes any legal entity shown as a managing agent or leasing agent on a written rental agreement.”

Here, the lease agreement was signed by Mrs. J. Hays. There is no evidence in the record that Margaret Byers was shown on any written rental agreement.

We sustain appellants’ seventh point of error.

Having sustained appellants’ fourth and seventh points of error, the remainder of appellants’ points of error have been duly considered and are overruled.

The judgment of the trial court is reversed and remanded for a new trial as to defendant Diamond Oaks Terrace Apartments; however, the judgment as to Margaret Byers is reversed and judgment is hereby rendered that plaintiff take nothing as to defendant Margaret Byers.

All costs are taxed to Diamond Oaks Terrace Apartments.

      . All statutory references are to Tex.Rev.Civ.Stat.Ann.


author: MOORE, Justice.

text:
    ROBERT BURNS CONCRETE CONTRACTORS, INC., Appellant, v. Jay NORMAN et ux., Appellees.
    No. 1093.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 26, 1978.
    Rehearing Denied Feb. 23, 1978.

      John Emmett, Dallas, for appellant.
    Robert C. Johnson, Grady, Johnson, Smith & Blakeley, Dallas, for appellees.
   MOORE, Justice.

Plaintiff, Robert Burns Concrete Contractors, Inc., instituted suit against defendants, Jay Norman and wife, Ethel J. Norman (Normans), to foreclose a mechanic’s and materialmen’s lien on a house owned by the Normans and situated on Lot 3 of Block L/8188 of Prestonwood Estates Addition to the City of Dallas, Texas. Plaintiff alleged that prior to the time the Normans acquired the title to the lot in question, plaintiff entered into a contract with the Normans’ general contractor, God-win Bevers Company, Inc. (Bevers), to construct a concrete foundation for the house to be built thereon and that Bevers failed and refused to pay the balance due on the contract in an amount in excess of $3,000.00. Plaintiff further alleged that it duly perfected its mechanic’s lien on the lot by giving notice to Bevers, who, according to plaintiff, acquired title and became the owner of the lot prior to the time the Normans acquired title. Plaintiff therefore asserted that the lot was burdened with the lien at the time the Normans subsequently acquired title thereto. Plaintiff prayed for a judgment foreclosing the lien on the lot but did not seek a personal judgment against the Normans. The Normans answered with a general and special denial alleging that plaintiff failed to perfect a statutory or any other kind of mechanic’s lien upon the lot, because plaintiff did not give them, as the owners of the lot, any notice thereof as provided for under the lien statutes. They alleged that notice of the lien given to Bevers was insufficient to perfect a lien against defendants, because Bevers was never the owner of the lot. After a trial before the court sitting without a jury, the court rendered a take-nothing judgment against the plaintiff and this appeal resulted.

We affirm.

The record is before us by way of a statement of facts only, there being no findings of fact or conclusions of law.

The facts, for the most part, are undisputed. The record shows that at the time this controversy arose, Bevers was in the business of constructing homes and Simons Land Co. (Simons) was a land developer who occasionally sold building sites to Bev-ers. On May 18,1972, Bevers contracted to buy four lots from Simons, one of which was the lot in question. Shortly thereafter Bevers erected a “for sale” sign on the lot. Having observed the sign, the Normans contracted with Bevers in regard to purchasing the lot and erecting a house thereon. On November 8, 1972, the Normans entered into a written contract with Bevers in which Bevers agreed to sell them the lot and erect a house thereon for a total cash consideration of $71,000.00. At the time the building contract was executed, Bevers advised them that it did not own the lot, but promised that upon the down payment of $11,350.00 as provided in the contract the building company would obtain a deed from Simons conveying them the title to the lot. According to the undisputed testimony of Mr. Norman, it was the understanding of the parties that $8,850.00 of the down payment would be used to purchase the lot and the remainder would be used in commencing construction of the house. At the time Bevers contracted to sell the lot to the Normans, its time limit to purchase the lot had expired. Bevers called Simons and advised that the lot had been sold. The record does not reflect the nature of this conversation; however, Simons apparently agreed to sell the lot because on November 13, 1972, a general warranty deed conveying the lot to Bevers was prepared and forwarded to Southwest Land Title Company, Simons’ escrow agent, with instructions that the deed was not to be delivered until the $8,850.00 was paid. Why the deed was executed to Bevers rather than the Normans is not explained. In any event the record shows that the deed remained at the title company until February 6, 1973.

In the meantime, Bevers, acting as the Normans’ general contractor, commenced construction of the house. Shortly thereafter, Bevers subcontracted the concrete foundation work to the plaintiff and subsequently failed or refused to pay plaintiff a balance due thereon in the amount of $3,169.00. The Normans knew nothing of the contract and had no contact whatever with plaintiff. On January 30, 1973, plaintiff, not having been fully paid, filed with the County Clerk of Dallas County an affidavit claiming a mechanic’s lien against the lot in question. The affidavit filed by plaintiff stated that Bevers was the owner of the lot, and the testimony shows that notice of the filing of the affidavit for perfecting the lien was timely given to Bev-ers. No notice, however, was given to the Normans.

Thereafter, on February 6, 1973, Bevers addressed a letter to Simons indicating that it was constructing a home on the lot in question for Mr. & Mrs. Norman, who were paying cash for the lot and improvements. The letter further stated that it was in the best interests of Bevers that the deed to the lot be made directly to the Normans and that the letter would constitute Simons’ authority to convey it directly to them. On the same day, Southwest Land Title Company, which apparently had knowledge of the foregoing letter, addressed a letter to Simons Land Company reciting as follows: “We are enclosing check from Godwin Bev-ers Company in the amount of $8,850.00 covering the above lot, conveyed to Jay Norman and wife, Ethel J. Norman. We are returning the original deed. We are enclosing an authorization for your files signed by Godwin Bevers Company, Inc.” There is no direct evidence showing that at the time Bevers paid for the lot it knew that the deed had been executed to Bevers rather than the Normans. Bevers’ letter directing Simons to convey the lot directly to the Normans on the same date it delivered its cheek in payment of the lot indicates that Bevers was not apprised of the fact that the deed was made out to it until the date payment was made. There is no evidence that Bevers ever obtained possession or accepted delivery of the deed or that it had any intention of doing so. Upon receipt of Bevers’ letter directing that the deed be executed directly to the Normans, Simons Land Company executed a deed to them on February 8, 1973. At that time Bevers was in the process of constructing the house, and the Normans continued to advance funds for its construction. In the spring of 1973, after the Normans had advanced Bevers approximately $45,000.00, Bevers went into bankruptcy and the Normans were compelled to employ other contractors to finish the house. Although the house was not completed, the Normans moved into the house on April 1, 1973, and construction was finally completed in the summer or early fall of 1973.

Plaintiff contends by a single point of error that the evidence conclusively shows that when Bevers paid the escrow agent for the lot on February 6, 1973, Bevers automatically became the owner, and that plaintiff was thereby entitled to a constitutional as well as a statutory lien upon the lot prior to the time the Normans acquired title on February 8, 1973. Plaintiff thus contends that the trial court erred in denying it a foreclosure of the lien. In reply, the Normans argue that Bevers never became the owner of the lot since it refused to accept the deed. Hence they argue that since a constitutional lien may be created only when the contract is with the owner of the land, plaintiff cannot claim a constitutional lien. Further, they say that since no notice was given them of the filing of a statutory lien, plaintiff failed to perfect properly a statutory lien. Upon applying the law to the facts as outlined above, we hold that the plaintiff failed to discharge its burden of proving facts necessary to establish either a statutory or a constitutional lien.

We will consider first the applicability of the constitutional lien. Art XVI, sec. 37 of the Texas Constitution grants mechanics, artisans and materialmen a constitutional lien which is self-executing and which exists irrespective of noncompliance with the statutory lien procedures. Hayek v. Western Steel Company, 478 S.W.2d 786 (Tex.1972); Strang v. Pray, 89 Tex. 525, 35 S.W. 1054 (1896). This constitutional provision fixes a lien on property in favor of the principal contractor against the owner, but does not extend to and give other persons a lien who have no privity of contract with the owner, even though they may have furnished material to the principal contractor. Shields v. Morrow, 51 Tex. 393 (1879); First National Bank of Paris v. Lyon-Gray Lumber Co., 194 S.W. 1146 (Tex.Civ.App.— Texarkana 1917), affirmed, 110 Tex. 162, 217 S.W. 133 (1919); Wiseman Hardware Co. v. R. L. King Construction Company, 387 S.W.2d 79 (Tex.Civ.App. — Dallas 1965, no writ). Thus, in order to establish a constitutional lien, plaintiff had the burden of showing privity of contract with the owner of the lot.

Plaintiff maintains that although Bevers was not the owner of the lot at the time the work was performed and notice of the lien was given, Bevers later acquired title on February 6, 1973, when it delivered its $8,850.00 check to the escrow agent in payment therefor. Plaintiff contends that since Bevers later acquired the title, it is deemed in law that Bevers was the owner at the time the labor and materials were furnished.

We have no reason to question the authorities relied on by the plaintiff which hold that when one has furnished material and labor to a prospective owner before he acquires title, a mechanic’s and material-men’s lien may be perfected when the title is later acquired. Irving Lumber Co. v. Alltex Mortgage Company, 468 S.W.2d 341 (Tex.1971); Yeager Electric & Plumbing Co., Inc. v. Gaines Building, Inc., 492 S.W.2d 921 (Tex.Civ.App. — Corpus Christi 1973, no writ); Schultze v. Alamo Ice & Brewing Co., 2 Tex.Civ.App. 236, 21 S.W. 160 (1893, no writ). The foregoing rule, however, is applicable in situations where it is undisputed that title was in fact later acquired by the prospective owner. In the present case, a serious question is raised as to whether the title actually passed to Bevers. Plaintiff argues that title automatically passed to Bevers when full payment was made by Bevers on February 6, 1973, two days before the Normans acquired title on February 8, 1973. Based on this premise, plaintiff argues that it perfected its lien through Bevers and that the Normans took title subject to its lien. We are not in accord with this proposition.

It has long been the law that a deed must be delivered in order to transfer title. Dikes v. Miller, 24 Tex. 417 (1859). Delivery involves and requires acceptance of the instrument, either expressly or impliedly. A deed not accepted by the grantee conveys no interest. The sufficiency of the facts necessary to constitute acceptance of a deed is a question of law for the courts, while ascertainment of the underlying facts is, of course, for the trier of the facts. 19 Tex.Jur.2d Deeds sec. 82, p. 359 et seq.

We find no evidence that Bevers ever requested Simons Land Company to execute the deed to it or that Bevers knew that Simons had executed the deed to it until the time payment was made. The evidence shows that at the time the Normans made the initial $11,350.00 payment, Bevers promised them that it would secure a deed for them. Why the deed was executed to Bevers rather than to the Normans is not disclosed by the record. It appears that upon learning that the deed had been executed to it rather than the Normans, Bevers undertook to rectify that situation by directing the escrow agent to return the deed and by authorizing Simons to make the deed out directly to the Normans. There is no evidence that Bevers ever accepted the deed or had any intention to do so. On the contrary, it appears that Bevers elected not to accept delivery of the deed. At most the evidence raises nothing more than a question of fact as to whether Bev-ers ever accepted or intended to accept delivery of the deed. As stated, the record is before us without findings of fact or conclusions of law. Therefore, we must presume that every issue of fact raised by the evidence was found in favor of the Normans in the court below, and we must sustain the judgment entered by the trial court if it can be upheld on any legal theory known to the law. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); North East Texas Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795, 796 (1949); Ingram v. D. C. Rachal Ford, Inc., 545 S.W.2d 886, 888-9 (Tex.Civ.App. — Corpus Christi 1976, writ dism’d). Consequently, we must presume that the trial court found that Bevers did not accept the deed. In these circumstances no title ever passed to Bevers and Bevers never became the owner of the lot. Therefore, no privity of contract existed between the plaintiff and the owner at the time of the performance of the work. Not having contracted with the owner, plaintiff did not bring itself within the constitutional provision relied on and therefore failed to perfect a constitutional lien.

The remaining question is whether the plaintiff perfected a statutory lien on the lot in question pursuant to Tex.Rev.Civ. Stat.Ann. art. 5453 (Supp. 1978) by reason of its subcontract with the general contractor employed by the Normans. Any contention that a statutory lien was properly perfected is laid to rest by plaintiff’s admission that he never gave any notice to the Normans of the filing of a statutory lien.

One of the essential prerequisites in perfecting a statutory lien is that the owner of the property be given notice of the filing of the lien. Art. 5453, sec. 2(b)(2); Texas Glass & Paint Company v. Crowdus, 108 Tex. 346, 193 S.W. 1072 (1919); Herrington v. Luce, 491 S.W.2d 478 (Tex.Civ.App. — Tyler 1973, no writ). In response to requests for admissions of fact, plaintiff admitted that it had no form of agreement or contract, either oral or written, with the Normans regarding the supply of labor or material on the lot in question, and further admitted that it did not give the Normans any notice of the filing of the mechanic’s lien affidavit. Although timely notice of the filing of the lien was given to Bevers, we have already held that the evidence does not conclusively establish that Bevers was at any time the owner of the lot, since Bevers never accepted the deed. Having thus admitted that it failed to comply with the notice provisions of the statute, plaintiff failed to perfect a statutory lien on the lot in question and the trial court properly denied foreclosure.

The judgment of the trial court is affirmed.


author: CLAYTON, Justice.

text:
    DELISLE CONSTRUCTION CO., Appellant, v. SCHWARZ-JORDAN, INC., OF HOUSTON, Appellee.
    No. 8030.
    Court of Civil Appeals of Texas.
    Jan. 26, 1978.
    Rehearing Denied Feb. 16, 1978.
    B. J. Hooks, Houston, for appellant.
    Melvin Engel, Dale A. Dossey, Houston, for appellee.
   CLAYTON, Justice.

This is a suit for damages for breach of contract and in the alternative for recovery based on the contract provisions. Schwarz-Jordan, Inc. of Houston, a subcontractor, as plaintiff sued Delisle Construction Co., a contractor, for monies expended in performing certain work under its subcontract and for loss of profits on such subcontract. In the alternative, plaintiff sued for damages for an amount computed under the terms of the contract documents.

Trial was to the court, which found that defendant breached the contract with plaintiff and awarded damages in the amount of $10,684.19 in monies expended and $12,000 for loss of profits on the contract.

It is undisputed that defendant entered into a construction contract, hereinafter referred to as the “prime contract,” with the City of Houston to remodel concourse and flight station interiors at Houston Intercontinental Airport. Defendant subsequently entered into a standard subcontract agreement under which plaintiff was to perform the installation of the linear metal ceiling required by the prime contract with the city.

The subcontract between defendant and plaintiff provided that the prime contract between the city and defendant became a part of the subcontract, including the general conditions of the contract, supplementary general conditions, and the drawings and specifications and addenda forming a part of the contract.

The contract documents contain the following provisions relating to the installation of the metal ceiling:

“Mock-up: Contractor shall install suspension members for curved section and 10 feet of straight section in one concourse and install the pans. Upon approval of the installation work may proceed per schedule.” * * *
“Whenever the words ‘approved,’ ‘satisfactory,’ ... or similar words or phrases are used, it shall be assumed that the word ‘Engineer’ follows the verb as the object of the clause, such as ‘approved by the Engineer.’ ” * * *
“The Engineer may direct that alterations, deviations, additions or omissions be made to or from the work as indicated or required.” (Emphasis added) * * *
“15. Changes and Extra Work — Within the general scope and sort of work or construction covered by the contract, the Engineer may, without notice to the surety on the Contractor’s bond, make such changes in the design, materials or machinery or the plans for installation or construction or other quality or character of the work or materials required as he may find necessary to the accomplishment of the general purpose of the work or construction contracted for. . . . ”

A “mock-up,” which was merely a sample of the work and materials used in the work to be performed by plaintiff, consisting of 200 square feet on specially fabricated materials was installed by plaintiff. It is undisputed that shortly after the “mock-up” was completed, the city through no fault of the defendant, notified the defendant they were eliminating the metal ceilings which were the subject of plaintiff’s subcontract with defendant.

The airport engineer testified that the “mock-up” was required in order “to determine if it was going to work satisfactorily from a cost-mechanic standpoint, from a practical standpoint before we went ahead and used this type of ceiling throughout the concourses.” He disapproved the “mockup” because the ceiling was not acceptable from a general appearance standpoint and because it was not heavy enough and strong enough to withstand the wear and tear to which it would be subjected. He also testified provisions were made so “we weren’t married to it until we had a chance to look at a mock-up and see what it was going to do.” A design change was then made to eliminate the linear metal ceiling. The “mock-up” was then removed by plaintiff.

The trial court found that a valid contract existed between the parties, that defendant breached such contract, and that plaintiff was entitled to recover damages for such breach.

We will first consider defendant’s second point of error which urges error on the part of the trial court in finding that defendant breached the subcontract with plaintiff since the contract documents contained a condition precedent requiring plaintiff to install a “mock-up” and obtain the approval of the airport engineer prior to proceeding with the work, and this approval was never obtained. We sustain this point for the reasons to be stated.

The question before us is whether or not the requirement of the approval of the “mock-up” by the airport engineer was a condition precedent, a condition which must occur before there is a right to immediate performance and before there is a breach of contractual duty. Plaintiff does not question the right of the airport engineer to eliminate the work of installing the linear metal ceiling. It is undisputed that the engineer refused to approve the “mock-up.”

In the recent case of Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976), the court stated the rules applicable to conditions precedent.

“A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an existing agreement. Conditions may, therefore, relate either to the formation of contracts or to liability under them. Perry v. Little, 377 S.W.2d 765 (Tex.Civ.App. — Tyler 1964, writ ref’d n. r. e.); Reinert v. Lawson, 113 S.W.2d 293 (Tex.Civ.App. — Waco 1938, no writ). Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty. Burns v. American Nat. Ins. Co., 280 S.W. 762 (Tex.Comm’n App.1926, jdgmt. adopted); Perry v. Little, supra; Cozby v. Edwards, 203 S.W.2d 569 (Tex.Civ.App. — Fort Worth 1974 [1947], writ ref’d n. r. e.); Toland v. Kaliff, 435 S.W.2d 260 (Tex.Civ.App. — San Antonio 1968, no writ); Restatement of Contracts § 250 (1932).”

The facts clearly show that the installation and approval of the “mock-up” was required by the prime contract. The provisions of the contract are clear that the approval of the work must be obtained before the contractor could proceed with the installation of the linear metal ceiling. This approval by the engineer was a condition which necessarily had to occur before any contractual duty or obligation existed on the part of either the plaintiff or defendant. To give this clause in the contract any other construction would render the “approval” requirement absolutely meaningless. Not only is the contract clear and unambiguous on this point, but the engineer and the plaintiff apparently recognized this to be the true meaning of the “approval” clause. It is clear such meaning was given by the engineer which is evident from his testimony quoted above. The plaintiff’s witness, who was the president of plaintiff corporation, testified about the difficulty in making arrangements for the materials used in the ceiling work, and “it was because of my expertise and that of my people working with our supplier that we were able to prepare a bid and perform the job if they decided to go ahead with it.’’ (Emphasis added)

The facts of this case fall squarely within the rules stated by the Supreme Court in the Hohenberg Bros. case. We hold that the approval of the airport engineer was required before the defendant (and the plaintiff under its subcontract) were required or permitted to perform under the contract, before there was a right to immediate performance, and before there could be a breach of contractual duty on the part of the defendant. The approval of the “mock-up” was a condition precedent and in the absence of such approval, there is no liability or obligation on defendant’s part, and there can be no breach of contract by him.

All of the appellee’s counterpoints presupposes the existence of a valid and enforceable contract between the parties. In view of our disposition of this question, such counterpoints are without merit.

The plaintiff having sought recovery of damages based solely upon breach of contract, and on no other grounds, and there being no breach of contract for which plaintiff can recover damages, we now render the judgment which should have been rendered by the trial court: that plaintiff recover nothing from defendant.

REVERSED and RENDERED.


text:
    William B. JETER, Appellant, v. Frank E. MONTFORT, Appellee.
    No. 8048.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 26, 1978.
    Rehearing Denied Feb. 16, 1978.
    Ranseler O. Wyatt, Houston, for appellant.

      Harold Lloyd, Houston, for appellee.
   CLAYTON, Justice.

This case was filed by appellee, plaintiff below, against appellant, defendant below, an attorney, to recover damages resulting from a judgment rendered against him without his knowledge, when appellant agreed to the entry of a judgment against plaintiff without having authority to do so.

At some time prior to December 1965, a case was filed in the District Court of Harris County, Texas, bearing Cause Number 612.739, styled Catherine Nickerson, et al. v. Twin Peaks Land & Cattle Co., et al. (hereinafter referred to as the Nickerson case), wherein it was alleged that the numerous named defendants were engaged in certain acts of fraudulent transactions. In that case the appellee and appellant were included as named defendants. After the case had proceeded to trial, a settlement of the case was reached and an agreed judgment was entered. The appellant approved the judgment as attorney acting for himself and for appellee. The judgment released appellant from any liability but subjected appellee to a money judgment in excess of $19,000.

In view of our disposition of this appeal, it will serve no useful purpose in reciting the evidence in this trial. The evidence presented raised the fact issues concerning appellant’s actions in agreeing to the judgment rendered and entered in the Nicker-son case as attorney representing the appel-lee without having authority to do so. Trial was to a jury, and the jury returned a verdict finding that appellant agreed to such judgment without having authority to do so, that such action by appellant was done with malice, that damages sustained by appellee as a result of “[t]he judgment entered against [Plaintiff] in Cause No. 612.739,” was in the sum of $40,000.00 and assessed exemplary damages in the sum of $15,000.00. The trial court entered judgment against appellant in accordance with the verdict, from which appellant appeals.

Appellant presents and urges twenty points of error. Point No. 13 urges error on the part of the trial court in “entering judgment against this Appellant in the sum of $40,000.00 damages and $15,000 attorney’s fees because the Appellee has wholly failed to prove any measurable damages. . . .” This is germane to his assignment of error stated in his motion for new trial wherein he states as a ground for granting a new trial, “Because the only thing under the law that the Plaintiff would have been entitled to have recovered from the Defendant under the pleadings and proof was the amount of money he was caused to lose. . . .No defenses were alleged or shown, and no money was alleged nor shown to have been paid by this Plaintiff as a result of this Defendant’s failure to represent him, therefore, it was error to render a money judgment for this Plaintiff in any amount, much less $55,000.00.”

Appellee argues that this assignment of error does not “seem to state that there is no evidence to support the verdict, only that the theory of recovery relied on by appellee is incorrect and therefore will not support a judgment.” Appellee further contends that the assignment of error does not specifically and distinctly set forth the error complained of in an intelligible manner and therefore should be waived. We agree that the assignment of error is inarticulately drawn and that it contains erroneous arguments which should not have been made in such assignment as well as the point of error. However, after carefully reviewing the assignment of error in the motion for new trial and the point of error presented, together with the statement and argument in appellant’s brief, the “point” is sufficient to direct this court’s attention to the matter complained of; namely, there is no evidence to support a finding by the jury of $40,000 as actual damages. The complaint of $15,000 as damages is mistakenly referred to as attorney’s fees because the verdict and judgment entered therefor specifically refer to such sum as exemplary damages. Under the authority and reasons stated therefor by our Supreme Court, in O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 113-14 (Tex.1976) and Fambrough v. Wag ley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943), we will consider the point of error as a “no evidence” point and will look to the “point” and the statement and argument thereunder to determine the question of reversible error.

The only testimony given by appellee with reference to damages was that certain interrogatories inquiring about his assets were served on him, and because of this “I’d say it disturbed me as much, and in fact affected my work, and it also affected my wife’s health very, very bad. She collapsed at that time and required medical attention” and that it affected his nerves, but “not to the extent it did hers”, and that “the holder of the judgment might be able to seize property from [him] to pay the judgment.” Upon being asked, “Has your worry and concern about this matter continued?” plaintiff testified, “Yes. Up until now.”

In addition to the jury findings referred to above, the trial court submitted the damage issue in such a manner as to permit the jury to assess damages for two separate elements. The jury was asked to assess damages resulting from the following:

“(a) The judgment entered against Frank Montfort in Cause No. 612,-739.
To which the Jury answered ‘$40,000.00’.
(b) Mental anguish and suffering sustained by Frank Montfort.
To which the Jury answered ‘0’.”

All of the evidence presented by plaintiff referred only to “mental anguish and suffering,” and the jury found that plaintiff sustained no damages therefor. There is no evidence of actual damages resulting from “the judgment entered against plaintiff.” There is no evidence of any monetary loss, no evidence that the judgment has been satisfied in any way, and there is no evidence that any prerequisite action has been taken to perfect a judgment lien. In the absence of any evidence as to such elements, plaintiff has not shown any actual damages for which he would be entitled to recover. Since the finding of actual damages is not supported by the evidence, an award of exemplary damages must also fail. Phillips v. Wertz, 546 S.W.2d 902, 907 (Tex.Civ.App. — Dallas 1977, writ ref’d n. r. e.); Securities Investment Co. v. Finance Acceptance Corp., 474 S.W.2d 261, 270 (Tex.Civ.App. — Houston [1st Dist.] 1971, writ ref’d n. r. e.). We sustain appellant’s “no evidence” point as to damages. This point was and could be asserted for the first time by a motion for new trial. Rosas v. Shafer, 415 S.W.2d 889, 889-90 (Tex.1967). However, this point being raised for the first time in appellant’s motion for new trial, we do not have before us the appellate predicate for a rendition. Therefore, the only relief which can be given is the granting of a new trial. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538, 540-41 (Tex.1968); French v. Brodsky, 521 S.W.2d 670, 682 (Tex.Civ.App. — Houston [1st Dist.] 1975, no writ). Gillespey v. Sylvia, 496 S.W.2d 234, 236 (Tex.Civ.App. — El Paso 1973, no writ). See Calvert, “‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Texas L.Rev. 361 (1960).

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

REVERSED and REMANDED.