author: KEITH, Justice. DIES, Chief Justice,

text:
    Jean WALDEN et al., Appellants, v. ROYAL GLOBE INSURANCE COMPANY, Appellee.
    No. 8127.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    Rehearing Denied Jan. 18, 1979.

      Tommy Jacks, Austin, for appellants.
    Burnie Burner, Austin, for appellee.
   KEITH, Justice.

Our prior opinion in this cause dated November 16, 1978, is withdrawn and this opinion substituted in lieu thereof.

This is a workers’ compensation case wherein the widow and the guardian of two minor children recovered maximum death benefits after a trial by jury. The accrued weekly payments were ordered paid immediately with interest, and the remaining weekly payments were ordered paid weekly in accord with the provisions of Tex.Rev. Civ.Stat.Ann. Art. 8806, Sec. 8(b) (Supp. 1978-79). The court sustained the carrier’s exception to claimants’ allegations seeking a lump sum payment of the weekly death benefits. From the pleadings and the charge we learn that there were contested issues of fact as to deceased’s employment status, whether his injury was in the course of his employment, and as to whether the carrier was in fact the workers’ compensation insurer for deceased’s employer.

The jury answered the contested issues in favor of the claimants and the judgment was entered for claimants for the maximum amounts payable in accordance with the statute. Claimants have perfected a limited appeal contending that the trial court erred in sustaining the special exception and in refusing to pass upon the issue of lump sum payment of the death benefits. We affirm.

Before its amendment in 1973, Art. 8306, Sec. 8, Tex.Rev.Civ.Stat.Ann., read:

“Sec. 8. If death should result from the injury, the association hereinafter created shall pay the legal beneficiaries of the deceased employee a weekly payment equal to sixty per cent (60%) of his average weekly wages, but not more than Forty-nine Dollars ($49) nor less than Twelve Dollars ($12) per week, for a period of three hundred and sixty (360) weeks from the date of the injury.”

Except for an early change in the designation of the statutory beneficiaries and periodic increases in the amount of weekly payments, this language has remained unchanged for sixty years.

From the earliest times, our courts had approved the lump-summing of death payments, one of the first cases being Texas Employers’ Ins. Ass’n v. Boudreaux, 231 S.W. 756, 758 (Tex.Com.App.1921, holding approved). Under this statute it had been determined authoritatively that where death resulted from a compensable injury, the surviving wife had an unconditional right to the compensation and that such right was vested and survived the beneficiary’s death. Burris’ Estate v. Associated Employers Insurance Co., 374 S.W.2d 223, 225 (Tex.1963).

In short, before the 1973 amendment, the death benefits could be lump-summed. The amount was fixed, both as to the weekly payment and to the number of weeks. The discount factor was fixed by statute and all a claimant had to prove was his or her entitlement thereto under the provisions of Art. 8306, Sec. 15. See Western Alliance Insurance Company v. decker, 371 S.W.2d 904, 911 (Tex.Civ.App.—El Paso 1963, no writ), and authorities therein cited.

The 1973 amendment to Sec. 8 of Art. 8306, was not merely cosmetic nor was it a simple housekeeping change. Instead, the legislature took a completely new approach to the question of death benefits. It jettisoned the specific number of weekly payments in favor of a period equal to the lifetime of the widow while she remained unmarried; and, as to the children, it provided for long periods during which such children would be entitled to the weekly payments, even up to age twenty-five in certain instances. While lengthy, we quote the pertinent portions of the amendment in the margin.

Even prior to the 1973 amendment to Art. 8306, Sec. 8, it was generally agreed that workers’ compensation benefits ordinarily should be paid weekly. One of the most cogent statements of the rule is to be found in this language taken from Texas Employers Insurance Association v. Motley, 491 S.W.2d 395, 397 (Tex.1973), wherein our Chief Justice restated the rule:

“When the workmen’s compensation act was passed, the weekly payments were to be in lieu of the wages which the workman could not earn because of his incapacity. There was, as we understand it, a feeling that it might not be wise to give the laborer, unskilled in money management, a large sum of money in a lump sum. It might be best for him, and his family, if the money were paid to him weekly, — as he had been receiving his wages. Provision was made, however, in Section 15 of Article 8306, for payment to the workman in a lump sum if to do otherwise would result in manifest hardship.”

But, as one court noted, “While the language of the statute . . . might indicate that the employee should be required to make a strict showing in order to be entitled to a lump sum award, a study of the decisions of our courts indicates that they have gone far in upholding verdicts allowing recovery in a lump sum.” Federal Underwriters Exchange v. Craighead, 168 S.W.2d 699, 700-701 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w. o. m.).

The practice of indiscriminate lump-summing has been criticized by some scholars. See, e. g., 3 Larson, The Law of Workmen's Compensation § 82.71, at 15-573 (1976), from which this quotation is taken:

“In some jurisdictions, the excessive and indiscriminate use of the lump-summing device has reached a point at which it threatens to undermine the real purposes of the compensation system. Since compensation is a segment of a total income insurance system, it ordinarily does its share of the job only if it can be depended on to supply periodic income benefits replacing a portion of lost earnings. If a partially or totally disabled worker gives up these reliable periodic payments in exchange for a large sum of cash immediately in hand, experience has shown that in many cases the lump sum is soon dissipated and the workman is right back where he would have been if workmen’s compensation had never existed. One reason for the persistence of this problem is that practically everyone associated with the system has an incentive— at least a highly visible short-term incentive — to resort to lump-summing. The employer and the carrier are glad to get the case off their books once and for all. The claimant is dazzled by the vision of perhaps the largest sum of money he has ever seen in one piece. The claimant’s lawyer finds it much more convenient to get his full fee promptly out of a lump sum than protractedly out of small weekly payments . ...
“. . . Enough experience has been gained by now to prove that a broad statutory requirement such as that the granting of a lump sum must be in the best interest of the worker is no guarantee against abuse of the practice.”

It is apparent from a reading of the new Section 8 that the legislature meant to change the practice with reference to lump-summing of death benefits. Section 8(d) of the new statute begins with the emphatic language, “The benefits payable to a widow, widower, or children under this section shall not be paid in a lump sum”, followed by two exceptions — “except in events of remarriage or in case of bona fide disputes as to the liability of the association for the death.”

In the event of the remarriage of the widow or widower, such claimant is entitled to “a lump sum payment equal in amount to the benefits due for a period of two (2) years . . . Art. 8306, Sec. 8(b). And, it is to be noted that there is no reference to hardship or injustice nor to a discount. Attorney General Hill, in an opinion addressed to the Chairman of the Industrial Accident Board, considered the question and concluded that, since none of the four categories to which the statutory discount is applicable includes the kind of lump sum involved upon remarriage of a widow under amended Sec. 8(b), the lump sum payment should be made without a discount. We adopt the reasoning found in the opinion (H. 862, August 12, 1976), it being set out in the margin.

The other exception permitting payment in a lump sum is specifically confined to “settlement of a disputed case” where the board or court makes “an express finding that a bona fide dispute exists as to such liability.”

To recapitulate, the express language of the new Act permits lump sum payments only in the event of remarriage and settlement wherein a bona fide dispute exists as to liability. The reason for the first is apparent: upon remarriage, the widow no longer needs the payment in lieu of wages for, presumptively, she has replaced her former wage earner. The second is present so that neither the claimants nor the carrier will be required to go for an “all or nothing” battle to determine liability.

With a bona fide dispute as to liability, the parties are enabled to give and take so as to reach a settlement which, if approved by the board or court, may be to the best interest of all parties to the controversy.

Indeed, while this cause was under submission, our Supreme Court considered the statute in detail. See Twin City Fire Insurance Company v. Cortez, 576 S.W.2d 786 (Tex.1978) (not yet reported except in 22 Tex.Sup.Ct.J. 156, December 20, 1978). We consider our opinion to be consistent with both the majority and the minority opinions in Cortez.

Claimants argue at length that we must interpret the law liberally so as to protect the injured workers and their beneficiaries. The answer to this contention of the claimants is to be found in Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711, 714 (1961), where the Court said:

“[W]e are not permitted to give a liberal construction where the law is expressed in plain and unambiguous language as here. We are not to look to the consequences of our action here in limiting the application of the statute to the exact words of the Act.” (emphasis in original)

Recently, in Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.1974), the Court restated the rule:

“If the statute being construed is plain and unambiguous, there is no need to resort to rules of [statutory] construction, and it would be inappropriate to do so.”

Accord: Brantley v. Phoenix Ins. Co., 536 S.W.2d 72, 74 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d); Legate v. Bituminous Fire & Marine Insurance Co., 483 S.W.2d 488, 490 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

Claimants argue that there are inconsistencies in Art. 8306, pointing to the lump sum provisions in Sec. 8(b) and (d) and Sec. 15. The new section (Sec. 8) is, of course, to some extent inconsistent with Sec. 15; but, this does not mean that we should ignore the new and enforce the old section. Instead, we adopt the rule stated in Black v. American Bankers Insurance Company, 478 S.W.2d 434, 437 (Tex.1972):

“It is a cardinal rule of statutory construction that all sections, words and phrases of an entire act must be considered together; every provision should be construed with every other portion to produce a harmonious whole; and one provision will not be given a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such construction if standing alone.”

Section 8(d) is not a total bar to lump sum payments and there are situations when the board or court may compel lump sum payments. See Attorney General Hill’s opinion, supra, to the effect that the lump sum accrues as a matter of law upon remarriage. Thus, when so construed, we reach an harmonious result and each provision stands.

The claimed inconsistency as to discount is also easily explained. No discount is allowed when the widow remarries for the simple reason that the lump sum payment is not an advanced payment; it is simply payment of what is then due, owing, and payable at par, not at a discount.

Another point of some concern to which parties have not supplied an easy answer is: How do you compute the present value of the widow’s weekly payment? Certainly, we all recognize actuarial tables with reference to life expectancy and they are universally accepted. However, the propensity or the likelihood of a widow remarrying is not, in our opinion, subject to such actuarial proof. Indeed, in our study we have found but one case on the subject, Osborn v. Osborn, 252 S.W.2d 887, 840 (Mo.App.1952), where the court states:

“Missouri Jurisprudence has not yet advanced to the point where re-marriage statistics have much evidentiary weight in solving this difficult problem.”

We say the same thing about Texas and call attention to the reasons assigned by the Missouri court (252 S.W.2d at 840) which we now adopt as applicable to our case.

Under the new statute which we review, we hold that the claimants were not entitled to go to the jury on the question of lump sum, and that the trial court properly sustained exceptions to the pleading.

The only other point brought forward is the claimed error of the trial court in refusing to award the attorney’s fees in a lump sum. We decline to consider this complaint because it was not properly preserved in the trial court. This was a limited appeal confined to the sole point of the claimed error in sustaining the special exceptions. There was no other complaint reserved in the notice of the limited appeal. Consequently, it will not be further noticed. See Garcia v. Employers Casualty Company, 519 S.W.2d 685, 687 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

Finding no error, the judgment of the trial court is AFFIRMED.

DIES, Chief Justice,

dissenting on Motion for Rehearing.

With respect, I dissent. In holding that a trial court has power to include a lump sum in a settlement, but not a judgment, the majority has, I believe, placed a powerful weapon in the hands of insurance companies to force a favorable settlement. The judgment in this case illustrates why by awarding $26.25 per week to the widow, $17.50 per week for each child, and $8.75 to plaintiffs’ attorney.

Furthermore, the majority opinion has repealed Tex.Rev.Civ.Stat.Ann. art. 8306, § 15 (Vernon 1967), which reads:

“In cases where death or incapacity in any degree results from an injury, the liability of the association may be redeemed by the payment of a lump-sum by agreement of the parties thereto subject to the approval of the Industrial Accident Board. Where in the judgment of the Board manifest hardship and injury would otherwise result, the Board may compel the association to redeem the liability by payment of the award of the Board in a lump-sum, and a discount shall be allowed for present payment in accordance with Article 8306a of the Revised Civil Statutes of 1925, as amended.”

Of course, a district court has the same power as the Industrial Accident Board. Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon Supp.1978).

I readily recognize the seemingly inconsistent portions of art. 8306, § 8(d) (Vernon Supp.1978) and art. 8306, § 15, but it is our duty, if possible, to harmonize them. Ex parte Roloff, 510 S.W.2d 913 (Tex.1974); Gerst v. Oak Cliff Savings & Loan Ass% 432 S.W.2d 702, 706 (Tex.1968); Peterson v. Calvert, 473 S.W.2d 314, 315 (Tex.Civ.App.—Austin 1971, writ ref’d).

Railroad Commission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.1968), admonishes us to “take statutes as [we] find them,” to find

“. . . its intent in its language, and not elsewhere. They [the courts] are not the law making body. They are not responsible for omissions in legislation. They are responsible for a true and fair interpretation of written law. It must be an interpretation which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain.”

Quoted from Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920).

I, therefore, would interpret this act as giving a court authority to order a judgment benefit in a lump-sum upon findings of (a) manifest hardship and injury, and (b) the existence of a bona fide dispute as to liability.

      . The special exception was directed to claimants’ pleading, in a conclusory manner, of their desire for a lump sum because “ ‘manifest hardship and injustice would otherwise result to them if the benefits were paid in small weekly payments rather than a lump sum.’ ”

      . In the original 1913 Act the benefits were $15-$5. Acts 1913, 33rd Leg., Ch. 179, pp. 429, 431.
      When the Compensation Act was reenacted in 1917, the amount of payments were unchanged. Acts 1917, 35th Leg., Ch. 103, pp. 269, 273.
      The payments were increased in 1923 to $20-$7 per week. Acts 1923, 38th Leg., Ch. 177, pp. 384, 385.
      The payments were increased again in 1947 to $25-$9. Acts 1947, 50th Leg., Ch. 307, pp. 521, 522. Again, in 1957, the maximum weekly payments were increased to $35 but the minimum payment was left unchanged. Acts 1957, 55th Leg., Ch. 397, pp. 1186, 1188. In 1969, the weekly payments were increased to $49-$12, but the Act was not changed otherwise. Acts 1969, 61st Leg., Ch. 18, p. 48.

      . “Sec. 8. (a) If death results from the injury, the association shall pay the legal beneficiaries of the deceased employee a weekly payment equal to sixty-six and two-thirds per cent (66¾⅛ %) of the employee’s average weekly wage, but not less than the minimum weekly benefit nor more than the maximum weekly benefit set forth in Section 29 of this article.
      “(b) The weekly benefits payable to the widow or widower of a deceased employee shall be continued until the death or remarriage of the beneficiary. In the event of remarriage a lump sum payment equal in amount to the benefits due for a period of two (2) years shall be paid to the widow or widower. The weekly benefits payable to a child shall be continued until the child reaches eighteen (18) years of age, or beyond such age if actually dependent, or until twenty-five (25) years of age if enrolled as a full-time student in any accredited educational institution. All other legal beneficiaries are entitled to weekly benefits for a period of three hundred and sixty (360) weeks.
      “(c) Upon the termination of the eligibility of any child to receive benefits, the portion of compensation paid to such child shall thereafter be paid to any remaining child or children entitled to benefits under the provisions of this Act. If there is no other eligible child then such benefits shall be added to those being paid to the surviving spouse entitled to receive benefits under the provisions of this Act.
      “(d) The benefits payable to a widow, widower, or children under this section shall not be paid in a lump sum except in events of remarriage or in case of bona fide disputes as to the liability of the association for the death. Any settlement of a disputed case shall be approved by the board or court only upon an express finding that a bona fide dispute exists as to such liability.
      “Upon settlement of all cases where the carrier admits liability for the death but a dispute exists as to the proper beneficiary or beneficiaries, the settlement shall be paid in periodic payments as provided by the law, with a reasonable attorney’s fee not to exceed twenty-five per cent (25%) of the settlement. The attorney’s fee shall be paid periodically and not in a lump sum.”

      . Opinion H-862, p. 3: “The lump sum payment made to the beneficiary [under Sec. 8(b) upon remarriage] is not the result of the parties’ agreement, or of an order of a court or the Industrial Accident Board, but is totally the result of the statutory directive. Neither do we believe that payment in the event of remarriage constitutes an ‘advanced payment of compensation.’ The statute clearly indicates that the lump sum payment is due at the time of the beneficiary’s remarriage. As a result, it cannot be characterized as an ‘advanced payment.’
      The same reasoning is applicable to the fourth category. The lump sum payment does not represent compensation ‘paid before becoming due,’ because it is in fact due at the time of the remarriage.” (emphasis in original)

      . In dictum, a majority of the Supreme Court has indicated that “remarriage tables” might be used appropriately in calculating the lump sum benefits due the widow or widower, but simply called the matter to the attention of the Legislature. Twin City Fire Insurance Company v. Cortez, supra, 576 S.W.2d at 786 n. 5 (22 Tex.Sup.Ct.J. at 158 n. 5).


source: Caselaw Access Project

author: DIES, Chief Justice. KEITH, Justice,

license: Public Domain

text:
    In the Matter of G. C. D., Appellant, v. The STATE of Texas, Appellee.
    No. 8180.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    Rehearing Denied Jan. 18, 1979.
    Dexter Patterson, Port Arthur, for appellant.
    Ron Sievert, Beaumont, for appellee.
   DIES, Chief Justice.

An original petition filed in the County Court of Jefferson County, Texas, sitting as a juvenile court, April 28,1977, accused this juvenile of delinquent conduct.

On August 31,1977, the Jefferson County Juvenile Board transferred all juvenile matters to the 317th Judicial District Court of Jefferson County, effective September 1, 1977.

The State filed an amended petition in the 317th District Court on December 12, 1977, and on March 22, 1978, a second amended petition in that court.

On March 27, 1978, the case was tried in County Court at Law No. 2 of Jefferson County, and judgment and order of probation filed May 23, 1978. From this judgment the juvenile appeals on one point of error that County Court at Law No. 2 lacked jurisdiction to try the case.

Tex. Family Code Ann. § 51.04 provides, in part:

“(a) This title covers the proceedings in all cases involving the delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a child within the meaning of this title at the time he engaged in the conduct, and the juvenile court has exclusive original jurisdiction over proceedings under this title.
“(b) In a county having a juvenile board, the board shall designate one or more district, criminal district, domestic relations, juvenile, or county courts or county courts at law as the juvenile court, subject to Subsection (d) of this section.”

This statute does not confer juvenile jurisdiction on a county court at law which when created was not given that jurisdiction. E-S- v. The State of Texas, 536 S.W.2d 622 (Tex.Civ.App.—San Antonio 1976, no writ).

To determine if the County Court at Law No. 2 of Jefferson County was given juvenile jurisdiction when it was created takes some statutory tracing.

Tex.Rev.Civ.Stat.Ann. art. 1970-126a (Vernon Supp.1978) reads:

“Sec. 2. The County Court of Jefferson County at Law No. 2, shall have, and it is hereby granted, the same jurisdiction and powers in all actions, matters, and proceedings of every nature that are now conferred by law upon and vested in the County Court of Jefferson County at Law, and the Judge thereof.”

Tex.Rev.Civ.Stat.Ann. art. 1970-112 (Vernon Supp.1978) reads, in part:

“The County Court of Jefferson County at Law shall have jurisdiction in all matters and cases, civil and criminal, original and appellate, over which by the general laws of the State the County Court of said County would have jurisdiction. . .

And finally, Tex.Rev.Civ.Stat.Ann. art. 1970-113 (Vernon 1964) reads, in part:

“The County Court of Jefferson County shall retain, as heretofore, general jurisdiction of the probate court . and the judge of the County Court of Jefferson County at Law may act for the judge of the county court in any juvenile, lunacy or probate matter . . (Emphasis supplied.)

So while we conclude the Juvenile Board of Jefferson County could designate the County Court at Law No. 2 as a juvenile court, it has not done so. In fact our record shows it (the Board) has so designated the 317th District Court. For this reason, the point of error urged by the juvenile is sustained. The adjudication and the disposition orders both being void, the judgment of the trial court is reversed, and the cause is remanded to the 317th District Court of Jefferson County for further proceedings in accordance with the law and without reference to any action which may have been taken by the County Court at Law.

REVERSED and REMANDED.

KEITH, Justice,

concurring.

While I agree that the judgment of the trial court must be reversed, there are certain other aspects of the procedures used in this case which I feel merit discussion. This feeling is prompted by a consideration of the brief filed by State’s counsel. Relying upon Tex.R.Civ.P. 330(e), counsel mistakenly argues:

“[T]he legislature [sic] passed Rule 330(e), dictating extremely liberal transfer provisions among district courts. The statute is made possible, and is essentially based on, the fact that district courts have equal jurisdiction in all matters. The same is also true of all properly authorized and designated juvenile courts and, consequently, a policy of free transfer would be consistent with that statute.” (emphasis in text)

Counsel is in error for several reasons, the first and most obvious being that the rule, promulgated by the Supreme Court, is applicable only to district courts. I reserve a more serious point — the applicability of Tex.Rev.Civ.Stat.Ann. art. 200b (Supp. 1978-79) — for later discussion. In this case, there are many jurisdictional anomalies and I shall now attempt to trace the course of this case during its peregrinations through the Jefferson County Courthouse, noting that it has only two constant factors: (1) the names of the parties and (2) its number — No. 3268 J.

It was originally filed in the constitutional county court of Jefferson County, a bench then occupied by a judge licensed to practice law who was then chairman of the juvenile board of Jefferson County, with said court being the duly designated juvenile court of the county.

The juvenile board subsequently designated the 317th District Court as the juvenile court and ordered all pending matters, including this cause, transferred to such court. This order was entered in the minutes of the district court and of the county court.

Pursuant to the order of transfer, State’s counsel filed an amended and a second amended petition complaining of the minor’s conduct, each pleading being filed in the 317th District Court. Six days after the filing of the last petition, our transcript shows that a charge was delivered to a jury, the caption indicating that the case was being tried in the 317th District Court, but it was signed by an individual whom we judicially know to have been the judge of the County Court at Law, Number Two, of Jefferson County at that time.

The charge was signed as “Judge Presiding”, presumptively of the 317th District Court. I note, however, that both the charge and the verdict were filed in the office of the county clerk, not the district clerk. There is no record showing of how or in what manner the case left the district court and wound up in the county court at law.

Next, I find a judgment reciting the results of the jury trial earlier noted which found the child to be a delinquent child and placed him on probation for a period of six months. This judgment was entered by the County Court at Law, Number Two, and signed by the judge thereof purportedly “Sitting as a Juvenile Court.” We find no record that such court had ever been designated as a juvenile court by the juvenile board. See Tex. Family Code Ann. sec. 51.04(b) (1975). This judgment was filed in the office of the district clerk.

The order of probation, also signed by the judge of the county court at law, appears in our record but we are unable to determine in what clerk’s office it was filed. Presumptively, it was filed in the district clerk’s office, but no file mark appears thereon.

My lengthy resume of the procedural questions presented serves to point up the fact that a child’s liberty should not be handled so casually and informally. While State’s counsel argues for “extremely liberal transfer provisions” among the several courts, I note that such a philosophy is contrary to the legislative intent as expressed in Tex. Family Code Ann. sec. 51.-04(e) (1975), quoted in part in the margin. The juvenile board is charged with the responsibility of selecting a judge, from among those available, “who has a sympathetic understanding of the problems of child welfare”, and I am not persuaded that such an informal arrangement as that presented in this record is compatible with the legislative goal or the due process rights of the State or the child.

The child’s counsel now relies upon the opinion in J. W. B. v. State, 561 S.W.2d 958, 959 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ), wherein Chief Justice Brown discussed a similar fact situation. I approve and adopt as my own this language taken from J. W. B., supra:

“We know of no statutory authority by which juvenile cases filed in the 306th District Court may be transferred to the County Court at Law No. 2. Nor are we aware of any authority by which the judge of a county court at law may sit as ‘acting judge’ in a district court.”

I would follow this decision in reversing the cause.

There is yet another facet to the problem, the reserved comment concerning Tex.Rev.Civ.Stat.Ann. art. 200b (Supp.1978-79). This statute is a forward step in an attempt to simplify the transaction of business in the several specialized courts in the metropolitan areas which have less than complete district court jurisdiction.

While I have been unable to find any court interpretation of this statute, Attorney General Hill did address the question in Opinion H-800 (May 13,1974), when he was considering the jurisdiction of the Court of Domestic Relations of Nueces County, then operating under the provisions of Tex.Rev. Civ.Stat.Ann. art. 2338-10.

General Hill concluded, and I agree, that notwithstanding the broad language of Art. 200b, the judge of the Court of Domestic Relations did not gain any “authority to act beyond the jurisdiction granted” to the court in the act of creation. This statute did not authorize the action taken in this case.

The following summary expresses my conclusions reached after a study of this unusual record:

1. Upon compliance with the provisions of Tex. Family Code Ann. see. 51.04(b) (1975), the county court of Jefferson County at Law, No. Two, may exercise juvenile court jurisdiction when properly designated as a juvenile court by the juvenile board of the county.

2. Tex.Rev.Civ.Stat.Ann. art. 200b does not authorize the transfer of a juvenile case pending in a district court designated as a juvenile court to said County Court at Law, No. Two. J. W. B. v. State, supra, 561 S.W.2d at 959.

3. Nor may the judge of said County Court at Law sit as an acting or presiding judge in a case pending in the district court sitting as a juvenile court. J. W. B. v. State, supra.

4. The County Court at Law had no jurisdiction to hear and determine the case at the bar; consequently, the judgment and orders entered are void and of no force and effect. See Brazzel v. Murray, 481 S.W.2d 801, 803 (Tex.1972).

Since the trial court below never acquired jurisdiction of the cause or of the person of the minor, its judgment and order is void. Nevertheless, we have jurisdiction over these appellate proceedings to declare its invalidity. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961); Travelers Express Company, Inc. v. Winters, 488 S.W.2d 890, 892 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.); Brady v. Fry, 517 S.W.2d 304, 308 (Tex.Civ.App.—Beaumont no writ).

I would reverse the void order, as has been done by the majority, and concur in the remand of the cause to the 317th Judicial District Court of Jefferson County for further proceedings.

CLAYTON, J., joins in this concurring opinion.

       (Vernon Supp.1978).

       (Vernon 1975).

      . Sec. 51.04(e): “A designation [of a juvenile court] made under Subsection (b) or (c) of this section may be changed from time to time by the authorized boards or judges for the convenience of the people and the welfare of children. . . . It is the intent of the legislature . . . that changes in the designation of juvenile courts be made only when the best interest of the public requires it.” (emphasis supplied) Cf. In re Cockrell, 493 S.W.2d 620, 624 (Tex.Civ.App.—Amarillo 1973, writ refd n. r. e.), construing the prior statute.

      . The Family District Court Act, Tex.Rev.Civ. Stat.Ann. art. 1926a (Supp.1978-79), rechristened such court as the 319th Judicial District Court of Nueces County.


author: PRESLAR, Chief Justice.

text:
    Luis A. CHAVEZ, Appellant, v. Irma Gandara CHAVEZ, Appellee.
    No. 6745.
    Court of Civil Appeals of Texas, El Paso.
    Jan. 3, 1979.
    Rehearing Denied Feb. 7, 1979.
    Dick Stengel, El Paso, for appellant.
    John H. Whitaker, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a suit between former spouses on a contract in the nature of a property settlement agreement in their divorce action. The former wife brought this suit against the former husband for failure to continue to make payments of $100.00 per month under the contract. Following trial by jury, the Court entered judgment for $3,800.00 as damages for past due installments and all future installments. We affirm.

The contract divided the property of the parties and the provision here sued on was that the husband would pay $100.00 per month to the wife until the sum of $6,000.00 was paid. The agreement was approved by the Court granting the divorce, and the defendant, Appellant here, made payments for some eighteen months. When the Appellant became delinquent in his monthly payments, Appellee brought this suit alleging such delinquency and seeking to mature the full amount of future payments. Appellant objected to the pleadings of the Appellee as being insufficient on the issue of anticipatory breach, and the overruling of his exceptions to the pleadings is his first point of error in this Court.

The law of Texas is that the anticipatory repudiation of a contract entitles the wronged party to recover as of the date of the repudiation the present value of all that he would have received had the contract been performed. Republic Bankers Life Insurance Company v. Jaeger, 551 S.W.2d 30 (Tex.1976); Pollack v. Pollack, 39 S.W.2d 853 (Tex. Comm’n App., Section A, 1931, opinion approved); Continental Casualty Company v. Boerger, 389 S.W.2d 566 (Tex.Civ.App.—Waco 1965, writ dism’d); Universal Life and Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (Tex.Comm’n App., Section A, 1937, opinion approved). In the case before us, plaintiff’s pleadings are meager, but we think they are sufficient. After pleading the making of the contract, incorporating it into her original petition, and setting out the obligation to pay $100.00 per month until the sum of $6,000.00 had been paid, plaintiff pled:

“HI.
That Defendant has paid $2,200.00, leaving $3,800.00 due; and, because of his failure to pay the additional payments, has matured the entire amount.”

Appellant excepted to the pleading on the ground that it was not sufficient to plead anticipatory breach and would not support a judgment thereon. Appellant’s objection to the pleading is that it does not follow the rule that before recovery can be had on a theory of anticipatory breach there must be a distinct and unequivocal absolute refusal to perform under the contract. McKenzie v. Farr, 541 S.W.2d 879 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.). To meet that rule, plaintiff in our case has pled that defendant was obligated to pay the sum of $6,000.00 in monthly installments of $100.00 each, that he paid $2,200.00 leaving $3,800.00 due, and “because of his failure to pay the additional payments, has matured the entire amount.” As a pleading, we think this is sufficient to put the defendant on notice that plaintiff is claiming that the entire amount is now due by his repudiation, consisting of his act of failing to pay the additional payments. Repudiation can be by words or conduct and as said in Continental Casualty Company v. Boerger, supra:

“Repudiation consists in ‘such words or actions by a contracting party as indicate that he is not going to perform his contract in the future.’ Samuel Williston, ‘Repudiation of Contracts,’ Select Readings, Assoc, of American Law Schools 1080; 14 Harv.L.Rev. 317. See Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975, 976. It is conduct which shows a fixed intention to abandon, renounce, and refuse to perform the contract. Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598, 600; Burks v. Neutzler, Tex.Com.App., 2 S.W.2d 416, 418; Moore v. Middleton, Tex.Com.App., 12 S.W.2d 995, 997; ...”

Plaintiff has pled, then, that by his conduct the defendant repudiated the agreement; that by his failure to pay the installments he has matured the entire amount. The point of error as to the sufficiency of the pleadings is overruled.

Appellant, as a point of error, contends that the trial Court erred in refusing to allow cross-examination of Appellee on the question of adequate contractual consideration. We overrule the contention because Appellant has no Bill of Exception showing what the testimony would be if permitted, and for the further reason that Appellant was not entitled to go into the question of consideration because failure of consideration had not been pled by verified denial as required by Rule 93(j), Tex.R.Civ.P.

We also overrule Appellant’s other point of error that the trial Court erred in overruling his motion for continuance. The matter of granting a continuance rests within the sound discretion of the trial Judge. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963). The record will not support a finding that the trial Court abused its discretion. We therefore overrule the point of error.

The judgment of the trial Court is affirmed.


author: KLINGEMAN, Justice.

text:
    Harry C. DOTSON, Appellant, v. ALAMO FUNERAL HOME, Appellee.
    No. 16024.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 12, 1979.
    Rehearing Denied Feb. 21, 1979.

      William B. Chenault, III, Howard E. Davis, C. Nicholas Rothe, Jr., San Antonio, for appellant.
    Joe Meador, San Antonio, for appellee.
   OPINION

KLINGEMAN, Justice.

This is an appeal by Harry C. Dotson from a summary judgment that he take nothing in his suit against Alamo Funeral Home. Appellant brought suit seeking actual and exemplary damages against ap-pellee based upon alleged breach of contract, negligence and fraudulent concealment. The action is premised upon appel-lee’s alleged failure to reclaim the body of appellant’s natural father, Winford Curtiss Word, from The University of Texas Medical School at San Antonio and to conduct military funeral services and perform burial in a military cemetery. Appellee’s answer consists of a general denial; the contention that appellant’s cause of action was barred by the two- and four-year statutes of limitations and the statute of frauds; and the absence of consideration to support appellant’s alleged contract with appellee. The trial court in its summary judgment found that appellant’s cause of action was barred by the two-year statute of limitations, Article 5526, and specifically, Subdivisions 4 and 6 thereof, and decreed that appellant take nothing by his suit.

We affirm the judgment of the trial court. The record establishes as a matter of law that (1) this is a suit on an oral contract; (2) the statute of limitations was not tolled; (3) there was no fraudulent concealment by appellee; (4) the cause of action was barred by Subdivisions 4 and 6 of the two-year statute of limitations; and (5) appellee’s motion for summary judgment was correctly granted.

By a number of points of error appellant asserts that the trial court erred (a) in holding that the two-year statute of limitations barred the action; (b) in not upholding appellant’s affirmative defenses; and (c) in granting appellee’s motion for summary judgment.

The significant factual background and pertinent dates are summarized as follows:

(a) Four or five months prior to June 30, 1972, Mr. Word and his natural son, the appellant, Harry C. Dotson, met with Cecil W. Hopkins of Alamo Funeral Home to make arrangements for the disposition of Mr. Word’s remains after death.
(b) On June 30,1972, Mr. Word died at Wilford Hall Hospital, Lackland Air Force Base, Texas, of severe brain damage.
(c) On July 1, 1972, the registrar’s office at the hospital called Alamo Funeral Home to come for the body.
(d) During the period July 1-6, 1972, the body was arterially embalmed preparatory to being transported to the medical school for use in the school’s anatomy department.
(e) On July 1, 1972, and again on July 5,1972, Mr. Dotson met or spoke with Mr. Hopkins to give him all the necessary forms and information, so that the Veterans Administration and the Social Security Administration could assist with expenses related to the disposing of Mr. Word’s body.
(f) On July 6,1972, the body was transported to the medical school by Alamo Funeral Home.
(g) On July 13,1972, an itemized list of services performed by Alamo Funeral Home and charges therefor was forwarded with the appropriate claim form to the Veterans Administration regional office in Houston.
(h) Sometime in August, 1973, the body of Mr. Word was allegedly cremated at the medical school by persons unknown and disposed of in an unmarked grave.
(i) In August, 1976, Mr. Dotson contends that he met with Mr. Hopkins to determine the disposition of his father’s remains. He later went to the medical school, where he was told the remains were in an unmarked grave.
(j) In January, 1977, Mr. Hopkins contends he heard from Mr. Dotson for the first time since 1972 by telephone, inquiring as to the whereabouts of his father’s remains. About this time, the appellant claims he first learned that the body had been incinerated.
(k) On April 21, 1977, this action was brought.

We will separately address appellant’s claims herein according to his general allegations of breach of oral contract; negligence; and fraudulent concealment.

Breach of Oral Contract

The only written document pertaining to the contract is a statement of account from the appellee to the Veterans Administration, dated July 13,1972, which lists charges as follows:

Funeral coach service for picking up remains from Wilford Hall and transportation to Alamo Funeral Home $ 45.00
Preparation of remains for anatomical purposes 100.00
Four certified death certificates 8.00
Securing permit and death certificates 10.00
Transportation of embalmed remains to University of Texas Medical School 45.00
Total $208.00

Appellee urges that this was the only contract or agreement ever involved between the parties. It is undisputed that this contract had been fully performed and that none of the consideration called for in the statement of account was paid by appellant. Appellant makes no contention that there was a written contract, but asserts in this connection that appellee orally agreed to reclaim the body of Mr. Word from The University of Texas Medical School at San Antonio and thereafter to conduct military services and supervise burial in a military cemetery. There is nothing in the record to indicate when these services were to be performed, what the charges would be, or who would pay for such additional services. It is undisputed that appellant did not have any contact with appellee or any of its employees between July 5, 1972, and sometime in August, 1976, a period in excess of four years. It further appears that appellant made no attempt to reclaim the body from the medical school.

Assuming arguendo that there was, as alleged, an oral contract to perform burial services, appellant’s cause of action is barred by the two-year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5526, subds. 4 & 6 (Vernon 1958). See Shipp v. O’Dowd, 454 S.W.2d 845 (Tex.Civ.App.—Waco 1970, writ ref’d, n. r. e.).

Although the services set forth in the written statement of account were performed by early July, 1972, and Mr. Word’s body was by all accounts cremated in August, 1973, appellant waited until April 21, 1977, to file his suit. In order to avoid the bar of the two-year statute of limitations, appellant relies on the affirmative defenses of fraudulent concealment and estoppel to toll the running of the two-year statute of limitations. Both are affirmative defenses under which the plaintiff has the burden of coming forward with proof to support his allegations. Weaver v. Witt, 561 S.W.2d 792 (Tex.1977) (fraudulent concealment); Nichols v. Smith, 507 S.W .2d 518 (Tex.1974) (fraudulent concealment); “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972) (estoppel). There is no such proof in the record before us, nor is there probative evidence of any facts which would toll the statute of limitations.

Negligence

Negligence is the failure to observe a legal duty. The right of recovery for injury resulting from negligence of a defendant is based on the violation of a duty toward plaintiff. When no duty exists, no legal liability can arise on account of negligence. McCall v. Marshall, 398 S.W.2d 106 (Tex.1965); Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540 (1913); A. C. Burton Co. v. Stasny, 223 S.W.2d 310 (Tex.Civ.App.—Galveston 1949, writ ref’d); 40 Tex.Jur.2d Negligence § 5 (1976).

Appellant’s claim under a negligence theory is without merit. It is clear from appellant’s pleadings and evidence that his suit is premised upon a breach of oral contract. There is nothing in the record to support any legal duty owed by appellee to appellant on any theory of negligence.

As a general rule, the statute of limitations commences to run upon a cause of action in tort from the time that the duty owing to the plaintiff was breached by the wrongful or negligent acts of the defendant, even though, in some cases, the plaintiff is ignorant of the existence of his cause of action, or although damage was not sustained until after the commission of the tort. A cause of action ordinarily arises, and the statute of limitations commences to run, immediately upon the commission of the wrong about which the complaint is made, and the running of the statute is not postponed until damage results from the wrong. Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888).

Under the record there is no evidence to toll the statute of limitations under any theory of negligence. If there ever was any duty to furnish burial services as alleged by appellant, a party cannot sit idly by for a period in excess of four years without making any inquiry whatsoever or filing suit. The cause of action for tort, if any existed, is governed by the two-year statute of limitations and the court correctly held such cause of action was barred by limitations. City of Vernon v. Low, 158 S.W.2d 857 (Tex.Civ.App.—Amarillo 1942, no writ); Blondeau v. Sommer, 139 S.W.2d 223 (Tex.Civ.App.—Galveston 1940, writ ref’d).

Fraudulent Concealment

We have already discussed in some detail the matter of fraudulent concealment, which is an affirmative defense to the statute of limitations under which the plaintiff has the burden of coming forward with proof to support the allegation. Weaver v. Witt, 561 S.W.2d 792 (Tex.1977). In order for the doctrine of fraudulent concealment to apply, it must be shown that the defendant himself had knowledge of the facts which he is alleged to have fraudulently concealed. This is true because one cannot be guilty of fraudulently concealing facts of which he has no knowledge. Nichols v. Smith, 489 S.W.2d 719 (Tex.Civ.App.—Fort Worth 1973), aff’d, 507 S.W.2d 518 (Tex.1974); Barnard v. Thompson, 138 Tex. 277, 158 S.W.2d 486 (1942). A fraudulent concealment in cases of this sort includes first, actual knowledge of the fact that a wrong has occurred, and second, a fixed purpose to conceal the wrong. Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942); Owen v. King, 130 Tex. 614, 111 S.W.2d 695 (1938); City of Vernon v. Low, 158 S.W.2d 857 (Tex.Civ.App.—Amarillo 1942, no writ). Appellant’s contentions pertaining to fraudulent concealment are without merit.

We are of the opinion that the trial court correctly held there was no evidence to toll the statute of limitations, and the appellant’s cause of action was barred by the two-year statute of limitations. It follows that the trial court correctly granted appellant’s motion for summary judgment.

All of appellant’s points of error have been considered and all are overruled. Under the record, appellee was entitled to judgment as a matter of law. The judgment of the trial court is affirmed.

      . Plaintiff asks for actual damages in the amount of $500,000 and exemplary damages of $500,000.

      . Article 5526 provides, in part:
      There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

      4. Actions for debt where the indebtedness is not evidenced by a contract in writing.

      6. Action for injury done to the person of another.
      Tex.Rev.Civ.Stat.Ann. art. 5526, subds. 4 & 6 (Vernon 1958).

      . In Shipp v. O’Dowd, the court found that “[plaintiff’s pleading, most liberally construed, alleges a cause of action for breach of contract. That cause of action accrues, of course, and limitation begins to run, at the time of the breach.” Id. at 847.


author: KEITH, Justice.

text:
    AMERICAN NATIONAL BANK & TRUST CO., Appellant, v. FIRST WISCONSIN MORTGAGE TRUST et al., Appellees.
    No. 8189.
    Court of Civil Appeals of Texas, Beaumont.
    Jan. 18, 1979.
    Rehearing Denied Feb. 8, 1979.

      Edward Cogburn, Houston, for appellant.
    Taylor M. Hicks, Houston, for appellees.
   KEITH, Justice.

Defendant below appeals from an adverse judgment in a slander of title action and we will refer to the parties in accordance with their positions at the trial of the cause. Plaintiff sought to remove a cloud from its title to real property in Harris County and to recover damages from the defendant for slander of title. Defendant filed a cross action against plaintiff and a third party action against Monongahela Realty Partners (hereinafter “Monongahela”).

Based upon jury findings, a judgment was rendered in favor of plaintiff removing the cloud from its title, for actual and exemplary damages. The appeal is predicated upon twenty-two points of error, not all of which will be given separate consideration.

Statement of the Case

The lawsuit involves a controversy between financial firms which, at one time or another, were engaged in financing an apartment complex in Houston known as Hermitage Square Apartments (hereinafter simply “Hermitage”). These apartments were originally acquired by a corporate real estate syndicator engaged in putting together limited partnerships composed of high-income individuals using the property as depreciable tax write-offs. The corporate syndicator usually located the properties, became the general partner, and then operated the property for the limited partnership.

Plaintiff’s title to the apartment complex is based upon a warranty deed to the land (exclusive of the improvements thereon, both of which were encumbered by several prior liens). Plaintiff purchased the land for $300,000 and, upon the following day, leased it back to the limited partnership for a period of fifty-five years. The deed and a memorandum giving notice of the lease were filed promptly in the office of the County Clerk of Harris County.

Ten months later the sole general partner of the limited partnership executed a deed of trust to the defendant purporting to create a lien on the apartment complex, including the land, to secure a note for a sum in excess of $100,000. A title insurance binder disclosing the existence of plaintiff’s deed and lease was delivered to the defendant before the instruments were signed; but, defendant’s official charged with making the loan did not take notice of this defect in the mortgagor’s title. As a matter of fact, the defect was not discovered until the borrower — the general partner and the limited partnership — had sought refuge in the bankruptcy courts. Plaintiff declared the lease terminated, took over the supervision of the apartment complex and undertook to find an entity which would take over its position.

Being unsuccessful in having defendant take it out of the transaction, plaintiff offered defendant first refusal if it secured a purchaser. Finally, Monongahela offered a satisfactory price but defendant refused to match the Monongahela offer, and refused to release its purported lien on the property. Instead, with full knowledge of the impending deal with Monongahela, defendant instituted foreclosure proceedings and then filed its trustee’s deed of record.

The filing of the trustee’s deed served to frustrate the Monongahela transaction since plaintiff could not satisfy the title requirements demanded by the purchaser.

After a reduction of $60,000 in the purchase price, the Monongahela transaction closed into escrow subject to the removal of defendant’s cloud upon the title of plaintiff. Plaintiff then instituted this suit for slander of title and sought removal of the cloud on its title and actual as well as exemplary damages.

At the conclusion of the testimony, the trial court submitted certain special issues which were answered favorably to plaintiff and intervenor. The issues are summarized in the margin and the judgment followed the verdict.

We will supplement the statement as necessary in our discussion of the several points to be considered.

Opinion

Defendant first challenges the findings that its claim to the property was not reasonable and that it acted with malice with “no” evidence and factually insufficient points of error. We consider these points of error following the well recognized standards set out for our guidance by the Supreme Court. See, e. g., Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The basic thrust of defendant’s contention under this series of points is to be found in the first sentence of its argument wherein this language is italicized:

“Slander of title is not appropriate against one who asserts and litigates even a colorable claim.”

We disagree for the reasons now to be stated.

At the outset of our discussion it is well to recall the necessary elements of a slander of title action. These were stated and the supporting authorities collated in Walker v. Ruggles, 540 S.W.2d 470, 473 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ):

“It is well settled in Texas that in order for a party to recover in an action for ‘slander of title’ he must allege and prove: (1) the uttering and publishing of the disparaging words, (2) that they were false, (3) that they were malicious, (4) that he sustained special damages thereby, (5) and that the plaintiff possessed an estate or interest in the property disparaged. . . . ” (citations omitted)

Our case is readily distinguishable from Louis v. Blalock, 543 S.W.2d 715, 718 (Tex.Civ.App.—Amarillo 1976, writ refd n. r. e.), wherein the alleged slander consisted only of the filing of a judicial action seeking to establish the existence of a prescriptive easement across plaintiff’s property. Defendant’s first judicially asserted claim to the property came in defense to plaintiff’s suit. With full knowledge of the pendency of the sale to Monongahela, defendant caused the deed of trust to be foreclosed and filed its trustee’s deed for record.

At the time defendant acquired its deed of trust lien, the mortgagor was merely a tenant in possession under a lease. Defendant was charged with knowledge of the public records that its mortgagor could not assign such lease without the consent of the lessor and no one contends that any such consent was given. Consequently, under Tex.Rev.Civ.Stat.Ann. art. 5237 (1962), any attempted assignment was unlawful; and, “[s]uch statute is made a part of every lease contract by operation of law.” Young v. De La Garza, 368 S.W.2d 667, 670 (Tex.Civ.App.—Dallas 1963, no writ).

Our law seems to be clear that one taking a mortgage from a lessee is considered to be a sublessee, and, as stated by Chief Justice Calvert in Zeidman v. Davis, 161 Tex. 496, 342 S.W.2d 555, 558 (1961): “There is no privity of contract between a sub-lessee and the original lessor. See Amco Trust, Inc. v. Naylor, Tex.Sup. [159 Tex. 146,] 317 S.W.2d 47, 50, 73 A.L.R.2d 1109.

Thus, defendant’s sole claim of title is through the tenant who mortgaged the property without the consent of the lessor. As said in Brown v. Johnson, 118 Tex. 143, 12 S.W.2d 543, 545 (1929):

“Without this consent one holding premises under a subletting is a trespasser and occupies the attitude of a stranger to the landlord.”

At the time defendant negotiated the deed of trust lien it was charged that it was dealing not with an owner, but with a lessee who had no right to assign his lease without the consent of the lessor. At the time defendant foreclosed on its invalid deed of trust, it knew that the trustee’s deed was invalid because it was a stranger to plaintiff’s title. Nevertheless, and with knowledge of the Monongahela negotiation, and in an effort to frustrate such transaction, it filed its trustee’s deed for record. It cannot now be heard to say that it was only litigating its “bona fide” claim to the property. These were all acts taken before there was any litigation and the jury was entitled to conclude that such acts were taken to harm plaintiff.

Defendant has always contended that the sale-leaseback arrangement was in effect a mortgage loan. This contention has been maintained notwithstanding the fact that plaintiff has at all times insisted that the deal was exactly what was disclosed by the documents. Indeed, it is passingly strange that such contention is still urged even after the plaintiff’s grantor (and defendant’s mortgagor), Heaton, testified (after having been called by defendant) that there was never any intent on the part of either party to the land sale and leaseback transaction that the deed was meant to be a mortgage given to secure a debt.

We have given careful consideration to the cases, including many from out of state, cited by the defendant but find none to be in point. Defendant’s sole claim of title through the deed of trust was invalid from its inception. Its claim against plaintiff is and has always been groundless. With knowledge, actual or constructive of plaintiff’s rights, and with the avowed purpose of frustrating the Monongahela sale, defendant’s contentions presented by points one and two are without merit and each is overruled. Walker v. Ruggles, supra, 540 S.W.2d at 473, citing, inter alia, W. Prosser, The Law of Torts, § 128, at 917 (4th Ed. 1971).

Nor are we impressed by defendant’s argument that it was protected because it acted under advice of counsel. There are several reasons which militate against any such contention, one of the first being that such a contention was not pleaded nor did defendant submit requested issues tendering such a defense to the jury. Winn v. Warner, 199 S.W.2d 560, 568 (Tex.Civ.App.—Waco 1947, writ ref’d n. r. e.).

Additionally, the defendant’s evidence supporting this defense was extremely weak, one of its attorneys testifying that he was not consulted until after the foreclosure while the recollection of the other attorney was “foggy”. Neither made any effort to talk to the mortgagor concerning the trial theory that the sale-leaseback was in reality a mortgage.

We now address defendant’s contention that the actual malice needed to support an action of slander of title is not to be found in our record. It is obvious, from our prior statement of the facts, that we disagree with defendant’s argument. As said by Justice Pope while upon the Court of Civil Appeals in Kidd v. Hoggett, 331 S.W.2d 515, 518 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.):

“Malice is an essential element to the recovery of actual damages in a suit for slander of title. . . . ” (citations omitted)

Justice Pope then continued the discussion, noting the distinction between the nature of the malice needed to support the recovery in slander of title and the malice needed to support a recovery of exemplary damages, saying:

“Malice as a basis for recovery of actual damages, as distinguished from punitive damages should mean that the act or refusal was deliberate conduct without reasonable cause. . . . Malice as a basis for recovery of punitive damages should mean actual malice, that is, ill will, bad or evil motive, or such gross indifference to or reckless disregard of the rights of others as will amount to a willful or wanton act.”

We now turn our attention to defendant’s attack upon the allowance of exemplary damages. The jury, in response to Special Issues Nos. 5 and 6, found that defendant acted with malice in failing to release its lien and in foreclosing thereon, and, based upon these answers, fixed the amount of exemplary damages at $50,000. These findings are challenged by points claiming that the evidence is legally and factually insufficient to sustain such answers. Following the appropriate standards of review as indicated earlier, we disagree and overrule such points.

It is unnecessary to repeat the factual basis of the record supporting such findings and the award. Richard E. Berger, a vice president of defendant, actively handled the details of the several transactions and participated in the very acts which resulted in damage to plaintiff. Indeed, defendant has ratified and approved the act of Berger in taking the deed of trust from Heaton and in ordering its foreclosure by seeking to recover upon such acts in this suit. Defendant has never repudiated Berger’s act nor has it contended that he lacked authority to do that which caused plaintiff’s loss.

Texas adopted the Restatement of Torts, § 909, setting out the several bases upon which a corporation could be held liable for exemplary damages in the case of King v. McGuff, 149 Tex. 432, 234 S.W.2d 403, 405 (1950). In Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex.1967), the Court followed King and the Restatement, thereby holding the principal liable for exemplary damages in a case where it had been stipulated that the employee involved was the manager of the club and in the course of his employment.

See also, International Security Life Insurance Co. v. Finck, 496 S.W.2d 544, 546 (Tex.1973); Richter v. Plains National Bank, 479 S.W.2d 95, 97 (Tex.Civ.App.—Eastland 1972, writ ref’d n. r. e.); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.1972).

Thus, under the authoritative holding of the cited cases, defendant is liable in exemplary damages for Berger’s acts because “(d) the employer or a manager of the employer ratified or approved the act.”

Defendant’s points five and six challenging the award of exemplary damages, are overruled.

Several points of error challenging the two findings of the jury awarding actual damages because of defendant’s acts are submitted jointly. Our view of the record requires that we consider the challenges separately.

The jury found in answer to Special Issue No. 2 that plaintiff had suffered actual damages amounting to $60,000 because of defendant’s refusal to release its lien. These are, perhaps, both “no” evidence and “insufficient” evidence points challenging this finding and we will follow the usual rules governing appellate review of such points. See Lucas v. Hartford Accident & Indemnity Co., supra, 552 S.W.2d at 797.

After reviewing the record carefully, we disagree and overrule the evidentiary points challenging such finding. The original sale agreement with Monongahela was for $300,000 conditioned on clear title. The title company required a judicial declaration that the lease had terminated and a release of the lien. The judicial declaration was obtained but defendant refused to release its lien.

This refusal frustrated the Monongahela deal but it was the subject of renegotiation downward to $240,000. The resulting loss to plaintiff was $60,000 — the precise sum awarded plaintiff by the jury in Special Issue No. 2.

Under the facts and authorities cited earlier, the refusal of defendant to release its purported lien was wrongful and the award of damages is supported by the evidence in the record. Point seven is overruled.

The attack upon the award of $115,000 actual damages because of the foreclosure of the deed of trust and the recording of the trustee’s deed (as found in Special Issue No. 4), is not as susceptible of a ready answer. Although defendant does not contend specifically that the separate submission resulted in a double recovery, a careful review of the evidence does not reveal probative evidence supporting the award of $115,000.

The weakness in factual support is epitomized by this quotation from plaintiff’s brief — the only summary of the evidence it offers in support of the finding:

“In responding to questions from ANBT’s counsel on cross-examination, Ben Abrohams stated his belief that a title company might have issued a policy irrespective of the failure to release (S.F. 789-90). This belief is quite reasonable in view of the lease provision which rendered the October 1, 1973 deed of trust given without consent of the landlord ‘null, void and of no effect.’ However, when ANBT foreclosed, and took a trustee’s deed on the entire fee, there was no chance to obtain a clear title policy without the ensuing litigation. Thus, the jury awarded the remainder of damages, other than the reduction of purchase price, under the ‘foreclosure and sale’ special issue.”

Ben Abrohams, the witness mentioned in the preceding excerpt from plaintiff’s brief, was a Wisconsin lawyer who handled the details of the transaction on behalf of the plaintiff in that state. He attended the trial and apparently sat at counsel table during the presentation of the evidence.

A careful study of Abroham’s testimony does not convince us that it has the probative effect attributed to it by plaintiff’s counsel. It lacks even a glimmer of probative value and, in the language of our Supreme Court in Seideneck v. Cal Bayreuth er Associates, 451 S.W.2d 752, 755 (Tex.1970), it

“. . . falls within the scope of the rule announced in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), to the effect that when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence, and it will not support a verdict or judgment.”

Plaintiff’s attempt to support such award of actual damages by the evidence relating to attorney’s fees is likewise unavailing. Such fees are not recoverable in an action of slander of title under the holding of this Court in Shell Petroleum Corporation v. Howth, 133 S.W.2d 253, 264 (Tex.Civ.App.—Beaumont 1939), reversed on other grounds, 138 Tex. 357, 159 S.W.2d 483 (1942). We are unable to find where this square holding by this Court has been overruled.

Plaintiff argues that the recovery of attorney’s fees is authorized as part of the “expense of litigation” in removing the cloud on its title. In so contending, plaintiff relies upon language found in Walker v. Ruggles, supra, 540 S.W.2d at 474-475. Perhaps this is a sound rule to be followed in the future; but, it must be admitted, it is contrary to the generally prevailing rule that such fees are not recoverable in either contract or tort actions in the absence of a statute or contract. See New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex.1967), and Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964).

Plaintiff argues that even if it is not entitled to recover its attorney’s fees because of the slander of title, it is entitled to such fees as a part of its expenses incurred in the suit to remove cloud upon its title caused by the recordation of the trustee’s deed. Even if such be conceded, plaintiff may not prevail because it made no attempt to segregate the fees and expenses incident to the slander of title facet of the litigation and that relating to the removal of cloud upon its title.

The burden was upon plaintiff to offer evidence of probative effect in its claim for damages. Until and unless it segregated its attorney’s fees, it offered no evidence supporting an allowance thereof. See and compare International Security Life Insurance Co. v. Finck, supra, 496 S.W.2d at 546-547; Pockrus v. Connelly, 521 S.W.2d 115, 118 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Modine Manufacturing Company v. North East Independent School District, 503 S.W.2d 833, 845 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.).

We sustain defendant’s point of error number nine: “It was error for the Trial Court to enter judgment for actual damages based on foreclosure and sale (Special Issue No. 4), inasmuch as no evidence supported such finding.” The judgment will be reformed so as to reduce the judgment by the amount of the award found in answer to Special Issue No. 4, $115,000.

Defendant has several other points of error which it has presented with vigor and which need more than passing mention. For instance, defendant offered its vice president Berger as a witness and established that he was also a licensed lawyer. It now complains that the trial court erred in not permitting Berger to testify as to his understanding of the law of sale-leaseback transactions and as to statements made to him by Heaton, the officer of his mortgagor who negotiated the ill-fated deed of trust lien.

Heaton testified, denying that his transaction with Berger’s principal was a mortgage. Thus, Berger’s version of the conversation he had with Heaton was hearsay of the rankest sort as confirmed by our citation of the basic textbook authority: 1 C. McCormick & R. Ray, Texas Law of Evidence, § 782, at 560 (2d Ed. 1956).

Nor was testimony as to Berger’s understanding of the law of Minnesota as it applied to sale-leaseback transactions in Texas — the precise issue then before the trial court — admissible. As Dean McCormick has so aptly observed: “[T]he construction and interpretation of written instruments falls within the province of the judge, or the jury under proper instructions from the judge.” 2 C. McCormick & R. Ray, Texas Law of Evidence, § 1425, at 265 (2d Ed. 1956). We find no error in the exclusion of the proffered testimony of Berger.

We have examined the remaining points of error brought forward by defendant and, finding no merit therein, each of such points is overruled. And, having found error affecting only a part of the judgment, we reform the judgment by reducing the amount awarded to the plaintiff by the sum of $115,000; and, as reformed, the judgment of the trial court is affirmed. Pursuant to Tex.R.Civ.P. 448, for reasons apparent from the face of this opinion, costs in all courts are divided equally between plaintiff and defendant and none are assessed against Monongahela.

REFORMED and AFFIRMED.

      . Plaintiff, First Wisconsin Mortgage Trust, is a Massachusetts Business Trust domiciled in Milwaukee, Wisconsin. It filed suit against the defendant, American National Bank & Trust Company, a national banking association domiciled in St. Paul, Minnesota. Defendant filed a third party complaint naming Monongahela Realty Partners, a limited partnership under the laws of Pennsylvania, and Monongahela aligned itself with plaintiff.

      . The lengthy and often confused record relating to the dealings between the interested entities in this financial transaction and the limited partnership does not require further elaboration.

      . The limited partnership was eventually released from the protection of the bankruptcy court and there then ensued a scramble among the various lenders seeking to foreclose their liens and to protect their relative positions in the assets of the limited partnership. None of these maneuvers bears upon the outcome of this appeal.

      . The jury found, in substance (1) that defendant failed to release its deed of trust mortgage without reasonable cause; (2) that such failure resulted in actual damage to plaintiff of $60,-000; (3) that defendant’s foreclosure and sale of the property under its deed of trust was without reasonable cause; (4) which caused plaintiff actual damages in the sum of $115,-000; (5) that in failing to release its deed of trust lien, defendant acted with malice; (6) that in foreclosing its deed of trust lien, defendant acted with malice; (7) plaintiff was entitled to recover $50,000 in exemplary damages. In response to defensive issues, the jury failed to fínd: (8) that plaintiffs deed was intended to be a mortgage; or that (9) plaintiff waived the obligation of the limited partnership to obtain its consent to the execution of defendant’s deed of trust.

      . The definition of malice, which comes to us without objection as to verbiage, read: “ ‘Malice,’ as used herein, means ill will, bad or evil motive, or such gross indifference or reckless disregard of the rights of others as to amount to a willful or wanton act.”
      The instruction on exemplary damages read: “ ‘Exemplary damages’ as used herein means an amount which you may in your discretion award as an example which will deter the defendant and others from engaging in same or similar conduct, and thereby protect the public interest, and as a penalty or by way of punishment. Due regard should be given to the party’s inconvenience and sense of being wronged.”

      . Defendant persists in such contention even upon appeal as shown by this language in its brief: “The basic defense, that the Ground Sale-Lease Back was, in fact and agreement, a mortgage loan, if established by jury findings, would have placed title to both land and improvements in Hermitage Square Apartments, Ltd., and, therefore, validated American Bank’s foreclosure of its 5th Position Mortgage.” (emphasis supplied) The defendant failed to secure jury findings: Special Issue No. 8, footnote 4 hereof.

      . The Restatement text so adopted does not differ materially from the test laid down by Chief Justice Cureton in the famous trio of cases on the subject: Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 400 (1934); Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409 (1934), and Southwestern Gas & Electric Co. v. Stanley, 123 Tex. 157, 70 S.W.2d 413 (1934). These cases were all cited in King, supra, as being “analogous” to the rule set out in the Restatement. (234 S.W.2d at 405)

      . Restatement of the Law Second, Torts, § 909(d) [Tentative Draft No. 19 (March 30, 1973)], now reads: “(d) the principal or a managerial agent of the principal ratified or approved the act.” As applied to the facts in the case at bar, the change in wording of subsection (d) does not affect the result which we have reached. See also Restatement of the Law Second, Agency 2d, § 217C.

      .We pause to express our disapproval of the action of defendant in failing to follow the plain provisions of Tex.R.Civ.P. 418(e)(1) by omitting “a fair, condensed statement of the facts pertinent to such points, with references to the pages in the record where the same may be found . . The entire statement is argumentative and the references to the record are few. With eighteen volumes in the statement of facts, counsel for an appellant places his chances of success in grave jeopardy by ignoring the fundamental rules governing appellate briefs. We do not, in this instance, exact any sanctions because of such violation.

      . The witness Abrohams on cross-examination:
      “Q. ... So long as that deed of trust was on record, the foreclosure of the deed of trust would not have any particular effect on the position of the title company?
      “A. I would disagree with that and I can’t— I don’t know what the situation is that applies in Texas but, for example, in Wisconsin where you had a similar type situation where an instrument is of record and for one reason or another you think there is — you are going to get a release or you are about to start a proceeding that will terminate the instrument, the title company is often under certain circumstances willing to take indemnity, for example, from the party that wants it released of record. In Wisconsin I have had a number of cases where we have been able to do that." (emphasis supplied)


author: J. CURTISS BROWN, Chief Justice.

text:
    Martha TUCKER, Appellant, v. Lee HILL, Executor of the Estate of Margaret Hatch, Deceased, et al., Appellees.
    No. 1845.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1979.
    Rehearing Denied Feb. 14, 1979.
    Michael R. McGown, Weller, Wheelus & Green, Beaumont, for appellant.
    Charles L. Price, Kennerly & Price, Houston, John L. Hill, Atty. Gen., James R. Riggs, Asst. Atty. Gen., Bonds & Charitable Trusts Div., Austin, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment sustaining the validity of a probated will in a suit to have that will set aside.

Margaret Hatch (decedent) died on July 29,1975. She left a typewritten instrument that gave the appearance of being a self-proved last will and testament. In that instrument, she appointed Lee Hill (Hill) to be the independent executor of her estate. Hill filed an application for probate of the purported will and for issuance of letters testamentary, which application was granted by the probate court. Martha Tucker (appellant), the decedent’s principal heir, subsequently filed a petition to have the purported will set aside, alleging that (1) the decedent did not execute the instrument in accordance with the requirements of section 59 of the Texas Probate Code; (2) the decedent lacked testamentary capacity when she executed the instrument; and (3) the decedent executed the instrument as a result of undue influence exerted on her by Hill and others. Lee Hill, Margaret Miles, the River Oaks Baptist Church of Houston, and Texas Attorney General John L. Hill (appellees) were the proponents of the will in the trial of the case. At the conclusion of that trial, the jury found for the appel-lees on the issues of testamentary capacity and undue influence. In her appeal from a judgment for the appellees rendered on that verdict, the appellant has assigned one point of error.

The appellant contends, in her sole point, that the trial court erred in admitting the purported will of the decedent to probate because that instrument was not duly executed and witnessed in compliance with the requirements of section 59 of the Texas Probate Code. That section provides:

Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two (2) or more credible witnesses above the age of fourteen (14) years who shall subscribe their names thereto in their own handwriting in the presence of the testator. Such a will or testament may, at the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, be made self-proved, and the testimony of the witnesses in the probate thereof may be made unnecessary, by the affidavits of the testator and the attesting witnesses, made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this State .

Tex.Prob.Code Ann. § 59 (Supp.1978) (emphasis added). The instrument admitted to probate in this case consisted of two unnumbered, typewritten pages. The first page disposed of the decedent’s assets and concluded:

IN TESTIMONY WHEREOF, my hand is hereto affixed this 22d day of April, A.D. 1965, at Houston, Texas, in the presence of Marv Jo Clark and Dorothy Dianne Babcock, whom I have requested to affix their names hereto as attesting witnesses.
Margaret W. Hatch

The next page contained the following:

The foregoing instrument was now here subscribed, declared, and published by the above-named Testatrix, Margaret W. Hatch, as her last will and testament in the presence of us, who, in her presence and in the presence of each other and at her request, have hereto subscribed our names as witnesses this the 22 day of April, A.D. 1965.
Marv Jo Clark
Witness
Dorothy Dianne Babcock
Witness

The next page concluded with a self-proving affidavit. The signature of the decedent was at the bottom of the first page (within one inch) and the attestation clause started at the top of the following page.

The appellant contends that the first page purported to be the will of the decedent and that it did not satisfy the requirements of section 59 because it did not contain an attestation clause. The appellant points out, in support of her argument that the second page is an instrument wholly independent of the purported will, that the attestation clause on the second page refers to the first page as the “foregoing instrument.”

We reject the appellant’s contention that the attestation clause is not a part of the decedent’s will because it is not on the same page as the disposition clauses and the decedent’s signature. Section 59 of the Texas Probate Code is silent as to where the witnesses must sign a will. It does not require the testator or testatrix and the witnesses to sign on the same page. All that is necessary is that the witnesses sign the will with the intent to act as witnesses. Fowler v. Stagner. 55 Tex. 393 (1881). The intent to act as a witness may be evidenced by the facts and the circumstances surrounding the signing of the will. Massey v. Allen, 248 S.W. 1067 (Tex.Com.App.1923, jdgmt. adopted).

The appellant maintains that the first page is the purported will of the decedent. In the last paragraph of that page, the decedent stated that she affixed her signature thereto in the presence of Mary Jo Clark and Dorothy Dianne Babcock, whom she had requested to attach their names thereto as attesting witnesses. The attestation clause on the next page did in fact contain the signatures of those two persons. The clause stated, moreover, that the decedent signed the will in their presence and that they subscribed their names to the attestation clause as witnesses in her presence and at her request. Although appellant claims that the use of the words “foregoing instrument” is some evidence that the attestation clause was not a part of the will, we agree with the statement contained in the brief of the Attorney General that the instrument admitted to probate in this case was “simply a two-page will in which the attestation clause and witnesses’ signatures were placed on the second page because there was no more space on the first page of the typewritten instrument.” We therefore hold that the trial court did not err in admitting the will to probate. See also, In re Dunlap’s Will, 87 Okl. 95, 209 P. 651 (1922); In re Moro’s Estate, 183 Cal. 29, 190 P. 168 (1920).

The appellant cites the following cases in support of her contention: Boren v. Boren, 402 S.W.2d 728 (Tex.Sup.1966); Matter of Estate of McDougal, 552 S.W.2d 587 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.); McLeroy v. Douthit, 535 S.W.2d 771 (Tex.Civ.App.—Fort Worth), writ ref’d n. r. e. per curiam, 539 S.W.2d 351 (Tex.Sup.1976); In re Estate of Pettengill, 508 S.W.2d 463 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); McGrew v. Bartlett, 387 S.W.2d 702 (Tex.Civ.App.—Houston 1965, writ ref’d). Those cases held that wills and self-proving affidavits are completely distinct instruments, and that the requirement in section 59 that a will be signed by the testator and two or more credible witnesses is not satisfied by the mere presence of their signatures on a self-proving affidavit.

The appellant’s point of error having been considered and overruled, the judgment of the trial court is hereby affirmed.

Affirmed.

      . The witnesses names were handwritten.

      . We note that the attestation clause here is essentially the same as the form or forms widely used in Texas. See generally, Slayton’s Texas Forms, §§ 5879, 5880, 5931, 5912, 5911, 5922, 5923, 5924; Texas Transaction Guide— Legal Forms by Kendrick, §§ 42.20(2), 42.21(2), 42.30(2), 42.31(2).


author: CIRE, Justice.

text:
    COVINGTON KNOX, INC., Appellant, v. The STATE of Texas, Appellee.
    No. 1983.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1979.

      Debora D. Ratliff, Robin C. Gibbs, Wood, Campbell, Moody & Gibbs, Houston, for appellant.
    John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Thomas M. Pol-lan, Sarah Shirley, Asst. Attys. Gen., Austin, for appellee.
   CIRE, Justice.

This is an appeal from an order imposing a temporary receivership upon appellant Covington Knox, Inc. [CKI] pursuant to Tex.Rev.Civ.Stat.Ann. article 581-25-1 (Texas Securities Act). We affirm.

CKI is a Texas corporation and registered broker-dealer in government securities located in Houston, Texas. The State of Texas, at the request of the Securities Commissioner of Texas, instituted this action in May of 1978, seeking an ex parte appointment of a temporary receiver to take control of the assets of CKI. The State alleged that appellant had engaged in fraud in the purchase of securities from and the sale of securities to the University of Houston. The State further contended that CKI engaged in the sale of securities in the State of Texas without having been licensed as a securities dealer, and filed false and misleading information in connection with its application for such license. The State urged that the immediate appointment of a receiver for CKI was necessary in order to conserve the assets of the company for the benefit of actual and potential claimants. Based upon the State’s petition the trial court appointed a temporary receiver to take control of the business and assets of CKI.

CKI filed a motion to dissolve the receivership, exercising its statutory right to request a hearing upon the motion. Tex.Rev. Civ.Stat.Ann. article 581-25-1C. At the close of the hearing the trial court overruled the motion to dissolve. CKI then brought this appeal.

In its first point of error, appellant asserts that imposition of the receivership without notice and opportunity to be heard deprived appellant of its property without due process of law.

It is unnecessary for us to consider this question. The law is that when a defendant appears and requests dissolution of an ex parte order imposing a receivership, he waives any error in the appointment of the receiver without notice. Whitaker Oil Co. v. Ward, 396 S.W.2d 158 (Tex.Civ.App.—Tyler 1965, motion to certify overruled, 398 S.W.2d 155 (Tex.1965). Salas v. Gonzalez, 181 S.W.2d 821 (Tex.Civ.App.—San Antonio 1944, no writ). When an appeal is perfected from an order overruling a motion to vacate the receivership, the question becomes simply one of the sufficiency of the petition to support the appointment of the receivership. Salas v. Gonzalez, supra at 822.

Appellant argues that the hearing does not, consistently with due process, eliminate procedural errors incident to an ex parte appointment for the reason that at the hearing CKI had the burden of showing that the order should be vacated, whereas the State would have had the burden of justifying the order in a hearing prior to appointment. This is not the law. In a hearing pursuant to article 581-25-1C the State retains the burden of producing sufficient evidence to justify the continuation of a receivership. At no time is the movant in a motion to vacate under an obligation to disprove the State’s case.

In its second point of error appellant urges that there was no evidence or insufficient evidence to establish the propriety and necessity of a receivership for the assets of CKI.

The appointment of a receiver is within the sound discretion of the trial court, and his order will not be overturned absent a clear abuse of discretion. Washington American Life Insurance Co. v. State, 545 S.W.2d 291 (Tex.Civ.App.—Austin 1977, no writ).

Article 581 — 25-1A authorizes the appointment of a receiver whenever it appears to the Securities Commissioner that:

(1) any person or company, a substantial portion of whose business consists of acting as a dealer, . . . shall have engaged in any act, transaction, practice, or course of business declared by Section 32 of this Act to be a fraudulent practice;
(2) such person or company shall have acted as a dealer in connection with such fraudulent practice; and
(3) the appointment of a receiver for such person or company, or the assets of such person or company, is necessary in order to conserve and protect the assets of such person or company for the benefit of customers, security holders, and other actual and potential claimants of such person or company . .
Section 32 provides, inter alia,
. that any such person or company . . . shall have engaged in or is about to engage in any practice or transaction or course of business relating to the purchase or sale of securities which is in violation of law or which is fraudulent or which has operated or which would operate as a fraud upon the purchaser, any one or all of which . schemes, . . . practices, transactions and courses of business are . hereafter referred to as fraudulent practices; .
Section 4F provides:
The terms “fraud” or “fraudulent practice” shall include any misrepresentations, in any manner, of a relevant fact; any promise or representation or prediction as to the future not made honestly and in good faith, or an intentional failure to disclose a material fact; the gaining, directly or indirectly, through the sale of any security, of an underwriting or promotion fee or profit, selling or managing commission or profit, so gross or exorbitant as to be unconscionable; any scheme, device or other artifice to obtain such profit, fee or commission; provided, that nothing herein shall limit or diminish the full meaning of the terms “fraud,” “fraudulent,” and “fraudulent practice” as applied or accepted in courts of law or equity.

While the evidence could have been more satisfactorily developed, this was not a trial on the merits, but only a preliminary procedure, and it was not necessary for the State to prove that it will ultimately prevail in this lawsuit.

The record discloses some evidence that CKI sold government securities to the University of Houston for a higher price than normal and sold securities on behalf of the University for a price lower than normal. During the time period in question the University of Houston was for all practical purposes OKI’s only customer, and nearly all of OKI’s gross profit was derived from the University of Houston account. There is evidence that CKI made excessive profits while acting, not as a trader, but as an agent in a non-risk trade in a normally very competitive market.

In addition, the evidence demonstrates a special relationship between the principal investors of CKI and Samuel Harwell, financial analyst in charge of short term investments for the University of Houston. Roger Knox, a founder of CKI, participated in various business ventures with Harwell beginning in the early 1970’s. Knox was later associated with several different securities investment firms, and procured the University of Houston account for each one. He earned substantial commissions as a result of University of Houston transactions.

One of the original three investors in CKI was Patrick Sullivan, a California securities dealer. The evidence showed that Sullivan was a half-brother of Samuel Harwell, and that Roger Knox paid Sullivan’s initial capital investment of $33,000.00 in the corporation. Sullivan was also paid substantial amounts by the firm for alleged consulting services.

The University of Houston withdrew its account from CKI in November of 1977. Shortly after this both the Texas Securities Commission and the Securities and Exchange Commission undertook investigations involving CKI. There was evidence that CKI has not acted profitably since losing the University account, and that immediately upon appointment of the receiver CKI lost its New York clearing house facilities. The evidence showed that CKI’s total assets amount to approximately $300,000.00, and that a substantial salary was still being paid to Covington and an $18,000.00 automobile was purchased for corporate use shortly before the receivership was imposed. Further, there was evidence that a formal claim and demand for more than $400,-000.00 has been filed against CKI by the University of Houston. From this the judge could conclude that a receivership was necessary to conserve and protect the remaining assets of CKI.

Accordingly, based on the record, we cannot say that the trial judge abused his discretion in appointing or continuing the receivership.

This court is aware that a receivership is a drastic remedy, to be used sparingly in the context of private litigation. The State, however, has a legitimate public interest and police power in supervising the securities field. In order to protect the investing public, securities dealers are subject to strict licensing and regulating, and are put on notice that they are operating under a law which specifically provides for receivership. In another context one court has said, “In view of the nature of the subject matter, the grant of such powers [is] imperative, to protect investors against fraud or deception made possible by constantly changing conditions.” R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 48, 299 F.2d 127, 132 (1962). See also Halsey, Stuart & Co. v. Public Service Commission of Wisconsin, 212 Wis. 184, 248 N.W. 458 (1933).

The order of the trial court refusing to dissolve the temporary receivership is affirmed.