text:
    John W. TAYLOR, Appellant, v. FRED CLARK FELT COMPANY, Appellee.
    No. 1795.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 7, 1978.
    Rehearing Denied June 28, 1978.

      Roy E. Hungerford, Houston, for appellant.
    C. John Mayér, Ross, Banks, May, Cron & Cavin, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a summary judgment granted the appellee in its suit on a promissory note.

John W. Taylor (appellant), individually and doing business as John Taylor Co., is the maker of a promissory note for $22,-862.19 payable to the order of Fred Clark Felt Company (appellee). The appellee filed suit on the note on June 17,1977. The appellant’s first amended answer contained a general denial and allegations of payment and fraud in the inducement. The appellee subsequently filed a motion for summary judgment, which was granted on September 27, 1977.

The appellant asserts, in his first point of error, that the trial court erred in granting summary judgment because the appellee’s counsel failed to verify that Fred Clark Felt Company was the present owner and holder of the note and was entitled to receive payment thereunder and that he had personal knowledge of that fact. We note, initially, that summary judgment is a harsh remedy, and it may be upheld only if the record establishes the movant’s right thereto as a matter of law. Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589 (Tex.Sup.1975); Tex.R.Civ.P. 166-A. Rule 166-A, the summary judgment rule, is therefore strictly construed against the movant, and summary judgment should be granted only if the record establishes as a matter of law that there is no genuine issue as to any material fact in the case. In re Price’s Estate, 375 S.W.2d 900 (Tex.Sup.1964).

In order to show himself entitled to summary judgment in a suit on a promissory note in which the defendant has made a general denial, the plaintiff must establish that he is the present legal owner or holder of the note sued upon. Perkins v. Crittenden, 462 S.W.2d 565 (Tex.Sup.1970). A holder of a note is the person in possession of a note “drawn, issued or indorsed to him or to his order or to bearer or in blank.” Tex.Bus. & Comm.Code Ann. § 1.201(20) (Tex.UCC 1968). Even if he is not the owner thereof, the holder of a note may enforce payment of the note in his own name. Tex.Bus. & Comm.Code Ann. § 3.301 (Tex.UCC 1968).

The appellee’s summary judgment proof in this case consisted of a copy of the promissory note and the affidavit of the appellee’s counsel, wherein he stated that he was the attorney of record for the appel-lee, that the attached copy of the promissory note was true and correct, and that he had the original of the note in his possession and was prepared to tender it into court at such time as judgment was rendered. The sworn copy of the note shows on its face that it was issued to the order of the appel-lee. It can be reasonably inferred from the statements contained in the affidavit that appellee’s counsel possessed the original of the note in his capacity as agent for the appellee. We hold, therefore, that the ap-pellee presented sufficient summary judgment evidence that it was the holder of the note.

We agree with the appellant that the affidavit of the appellee’s counsel was defective since it did not show affirmatively that it was made upon personal knowledge. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1962); see Tex.R. Civ.P. 166-A(e). Because the appellant failed to object to the failure of the affidavit to make that affirmative showing, however, that formal defect will not furnish a basis for disturbing the summary judgment on appeal. Youngstown Sheet & Tube Co. v. Penn, supra.

The appellant asserts, in his second point of error, that the trial court erred in granting summary judgment because the appellant pleaded and raised fact issues concerning failure of consideration, fraud in the inducement, and payment. Those matters are affirmative defenses. Tex.R.Civ.P. 94. The mere pleading of an affirmative defense does not prevent the rendition of summary judgment for a plaintiff who has established the nonexistence of disputed fact issues in his claim for relief. Hudnall v. Tyler Bank and Trust Company, 458 S.W.2d 183 (Tex.Sup.1970). The plaintiff need not negative all affirmative defenses pleaded by the defendant; in order to show that there is a disputed fact issue which will preclude the rendition of summary judgment for the plaintiff, the defendant must offer summary judgment proof on each element of at least one of the affirmative defenses that it has pleaded. Seale v. Nichols, 505 S.W.2d 251 (Tex.Sup.1974).

The summary judgment proof presented by the appellant at the hearing consisted of the affidavits of John Taylor and a bookkeeper for John Taylor Co. The appellee alleges that neither affidavit contains a seal as required by Tex.Rev.Civ.Stat. Ann. art. 23, § 18 (1969), and, therefore, the affidavits are fatally defective. We reject that argument. Although our copies of these two affidavits do not contain visible seals, neither does the copy of the affidavit of the appellee’s counsel. In any event, the lack of a seal is a purely formal defect, and we assume that in this case the deficiencies, if any, would have been corrected by the appellant upon exception by the appellee prior to the conclusion of the hearing on the summary judgment. It was incumbent upon the appellee to except to the affidavits prior to or during the hearing. Having failed to do so, it is precluded from objecting for the first time on appeal to the admission of the affidavits on that basis. See Youngstown Sheet & Tube Co. v. Penn, 36B S.W.2d 230 (Tex.Sup.1962). This court will not assume the responsibility of searching out the originals of all documents in appellate records, where exceptions to those documents are made for the first time on appeal, in order to verify that those documents were filed with the trial court in proper form.

The appellee also alleges that each of the affidavits contains an acknowledgment rather than a jurat, and, therefore, both are fatally defective for that reason. Each affidavit concludes with the sentence:

BEFORE ME, the undersigned authority, on this day personally appeared [the affi-ant], known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged, and swore to me that the statements made therein are true and correct.

Although written in the form of an acknowledgment, the sentence does not purport to be a statement that the affiant executed a written instrument for the consideration and purposes therein stated. See Tex.Rev.Civ.Stat.Ann. arts. 6603, 6607 (1969). The sentence is, rather, an oath which complies with the requirements of Tex.Rev.Civ.Stat.Ann. art 23, § 18 (1969). We hold, therefore, that the affidavits were not fatally defective.

The appellee contends that the two affidavits filed by the appellant were not properly before the trail court because they were filed during the course of the hearing on the summary judgment. Prior to January 1, 1978, Tex.R.Civ.P. 166-A(c) provided’for the filing of opposing affidavits prior to the day of the summary judgment hearing. That provision was regarded as directory only; it was within the discretion of the trail court to allow opposing affidavits to be filed on or following the day of the summary judgment hearing. Axcell v. Phillips, 473 S.W.2d 554 (Tex.Civ. App.-Houston [1st Dist.] 1971, writ ref’d n.r.e.). The appellee failed to allege an abuse of discretion by the trial court in accepting the opposing affidavits. The affidavits were properly before the trial court and, therefore, should be considered in determining whether the appellant raised fact issues concerning failure of consideration, fraud in the inducement, and payment.

There is a rebuttable statutory presumption that a written instrument imports consideration. Thigpen v. Thigpen, 563 S.W.2d 868 (Tex.Civ.App.-an Antonio 1978, no writ history); Maykus v. Texas Bank & Trust Co. of Dallas, 550 S.W.2d 396 (Tex.Civ.App.-Dallas 1977, no writ); see Tex.Rev.Civ.Stat.Ann. art. 27 (1969). The two opposing affidavits filed by the appellant contain statements that John Taylor Co. had no record of ever receiving the goods for which the promissory note was issued and that it was the customary practice of that company to keep records of the receipt of such goods. That summary judgment evidence counters the presumption of consideration and raises the inference that the goods were never delivered. See Tex. Rev.Civ.Stat.Ann. art. 3737e, § 3 (Supp. 1978). The appellant having raised a fact issue concerning the affirmative defense of failure of consideration, the trail court erred in granting summary judgment. Hudnall v. Tyler Bank and Trust Company, 458 S.W.2d 183 (Tex.Sup.1970).

The judgment of the trial court is hereby reversed, and the case is remanded for a trial on the merits.

Reversed and remanded.

      . Amendments to Tex.R.Civ.P. 166-A, effective January 1, 1978, are inapplicable in this case since judgment was rendered prior to that date.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Sid G. RAMSEY, Individually and d/b/a Ramsey Properties, Appellant, v. John T. GORDON et al., Appellees.
    No. 5817.
    Court of Civil Appeals of Texas, Waco.
    June 8, 1978.
    Rehearing Denied June 29, 1978.
    Stewart DeVore, Jr., Bagby, McGahey, Ross & DeVore, Arlington, for appellant.
    Michael J. Rogers and Kenneth W. Boyd, Cleburne, for appellees.
   HALL, Justice.

Sid G. Ramsey individually and d/b/a Ramsey Properties, and Joe Robertson individually and d/b/a Western Real Estate, brought this suit against John T. Gordon, Winnie Barton and James M. Barton individually and d/b/a James M. Barton Real Estate, and Roy F. Cox individually and d/b/a Joshua Real Estate. Plaintiffs alleged that plaintiff Ramsey individually is in the business of buying and holding land for resale; that Ramsey d/b/a Ramsey Properties, is a licensed real estate broker and is in the business of real estate brokerage receiving a commission of the sales price as compensation for his services; and that plaintiff Robertson individually and d/b/a Western Real Estate is also a licensed real estate broker and receives a commission of the sales price as compensation for his services. Plaintiffs pleaded in essence that defendant Cox was defendant Gordon’s listing agent for the sale of approximately 181 acres of land owned by Gordon in Johnson County; that Gordon agreed to pay Cox a commission of 6% of the sales price; that by written contract dated September 21,1973, Gordon agreed to sell Ramsey the land for $800.00 per acre; that under the contract, Ramsey was to receive 3% of the sales commission, Robertson was to receive 1.75% of the commission, and Cox was to receive 1.25%; that thereafter Gordon breached the contract on December 21, 1973, by conveying the property to Donald H. Burnett and wife for $800.00 per acre; that defendants Bartons and Cox were Gordon’s agents in the sale to the Burnetts and were paid a 6% commission by him for the sale; and that as a result of Gordon’s breach, Ramsey lost $90,000.00 profit he would have made on a resale of the property. Ramsey prayed for a recovery of $90,000.00 against Gordon; and he and Robertson prayed for recoveries of $4,344.00 and $2,534.00, respectively against the other defendants “representing co-brokerage commissions” lost because of the misconduct on the part of said defendants.

Defendants affirmatively pleaded several grounds for avoiding the contract, including the contention by Gordon that Ramsey and Robertson, as Gordon’s agents for the sale of the property, fraudulently breached their duty by failing to obtain for him the highest price then obtainable and known to them. Additionally, based upon the alleged fraudulent breach of the agency relationship, Gordon filed a cross-action against Ramsey and Robertson for $90,000.00 actual damages and $100,000.00 exemplary damages.

Trial was to the court without a jury. Robertson did not personally appear at the trial; however, he was represented there by the attorney who also represented Ramsey. Virtually all of the trial proceeding was devoted to the conflicts and contentions between Ramsey and Gordon. After the hearing, a take-nothing judgment was rendered against all parties.

On Ramsey’s motion, the court filed findings of fact and conclusions of law. They support defendants’ affirmative defenses for avoiding the contract.

Only Ramsey appeals. We affirm the judgment.

In September, 1973, the parties began negotiating the contract in question, and it was reduced to typewritten copies by Ramsey and a person whom he identified as his “sales associate.” Thereafter, the copies were delivered back and forth “three or four times” between Ramsey and Gordon by Robertson and Cox while changes in the original terms relating to the consideration and the closing date were being made and initialed by Ramsey and Gordon. Although the contract is dated September 21, 1973, the record shows without contradiction that the final charges in it were made sometime in October, probably around the middle of that month according to Ramsey, and it was then signed. The evidence supports the inference that Ramsey was the iast party who signed the contract, after it was examined by his lawyer.

In its final form the contract sued upon contained the following provisions, among others:

“John T. Gordon hereinafter called Seller, acting through the undersigned and duly authorized agent, hereby sells and agrees to convey unto Sid G. Ramsey, Trustee, or his assigns, hereinafter called Purchaser, the following described [181 ± acres] .
“The purchase price is $144,800.00 or $800.00 per net surveyed acre, payable as follows: $1,000.00 cash as part payment, receipt of which is hereby acknowledged by said agent.
“Purchaser to pay an additional principal down payment of $13,480.00 or 10% of the total purchase price plus $9,774.00 in prepaid interest (12 months) will be made on the date of closing.
“For the remainder of the purchase price, Purchaser agrees to make, execute and deliver to Seller their promissory note in the amount of $130,320.00, payable with interest at the rate of 7½% per annum, and during the first seven years only the interest shall be payable annually, in advance, but commencing the eighth year, the first principal payment will be due ninety-six (96) months from delivery of deed in the amount of $26,-064.00 plus the accrued interest on the unpaid balance until the full amount of both principal and interest is paid in full.
“It is further provided that the Purchaser, after delivery of deed by giving thirty (30) days written notice, may pay the entire balance of the said promissory note together with accrued interest thereon, except that all payments in the calendar year of closing may not exceed 29% of the total purchase price.
“The above described note shall be secured by Vendor’s Lien retained in Deed conveying the property to purchaser and shall be additionally secured by Deed of Trust . . . There will be no personal liability on the promissory note. The holder of the promissory note has no recourse except the subject property.
“Said Deed of Trust shall contain a partial release clause, allowing Purchaser to release parcels of land from the operation of the above described liens . in a minimum of five (5) acre tracts . to be paid for at the rate of $1,000.00 per acre . . . Payment for all such partial releases shall be credited to the principal of said note.
“Seller agrees to pay the undersigned duly authorized agent a commission of six percent (6%) of the purchase price in cash at time of closing for negotiating this sale.
“Closing of this transaction shall be on or before Sept. 30, 1974, at Purchaser’s discretion.
“EXECUTED in triplicate originals, each of which shall have the force and effect of an original this 21st day of September, 1973.
Sid G. Ramsey, Trustee 3% Agent for Ramsey Purchaser Properties
“/s/ J. T. Gordon_ /s/ Joe Robertson
John T. Gordon, Seller 1⅜% Agent for Western Real Estate Co-Broker
/s/ Roy F. Cox_
1 ¼% Agent for Joshua Real Estate Co-Broker

On November 2, 1973, Gordon, through his attorney, sent a letter to Robertson stating that he had determined “to exercise his option not to convey his property” for the reason (among others set forth in the letter) that “the $1,000.00 in cash which was to be paid to him by the buyer has not yet been received.” Thereafter, on December 21, 1973, Gordon sold the property to Donald H. Burnett and wife (at the price of $800.00 per acre) for $13,905.30 cash and a promissory note for the balance payable in 48 equal semi-annual payments with interest. Meanwhile, in December, 1973, Ramsey, acting for himself as owner, began negotiating for the sale of the property to one James C. Morgan, and offered to sell it for $1,250.00 per acre. These negotiations ended on January 25,1974, with a written offer by Morgan to buy the property from Ramsey at the price of $1,000.00 per acre. It is this offer and additional increase in the value of the property to the closing date in September 1974, provided in the contract, upon which Ramsey bases his claim against Gordon for lost profits. About the time Morgan was making this offer, Ramsey learned that Gordon had sold the property to the Burnetts.

Ramsey and Gordon dealt with each other only through Robertson and Cox, and they did not personally meet until after this suit was filed. The evidence supports implied findings that Cox was acting in the matter only as Gordon’s agent, but that Robertson was acting either solely as Ramsey’s agent or as agent for both Ramsey and Gordon. Ramsey testified that he operated two businesses, “Ramsey Realty” and “Ramsey Properties,” that both are sole proprietor-ships owned by him, that under Ramsey Realty he acts as a real estate agent selling others’ property for a commission, and that under Ramsey Properties he purchases property for himself. Although Ramsey now claims he was only a purchaser in the transaction with Gordon, he testified on the trial that he was both agent and purchaser — that he was “a purchasing agent.” Specifically, Ramsey testified again and again that under the contract he was Gordon’s agent for the sale of the property. The trial court expressly found that he was Gordon’s agent. The court also found that Ramsey knew the property was appreciating in value when the contract was made, and “up until and through January, 1974”; that Ramsey failed to disclose that fact to Gordon; that he became personally interested in the property transaction by attempting to purchase the property himself; that the appreciation in value of the property from $800.00 per acre to $1,000.00 per acre was a material fact relating to the sale of the property; and that Ramsey failed to find a purchaser for Gordon for the best price available. Upon these findings the court concluded that Ramsey had breached his agency agreement and duties under the contract, and that the contract was therefore voidable at Gordon’s election.

Ramsey does not challenge the find-, ing that the property was increasing in value when the contract was being negotiated and made with Gordon, nor the findings that he knew the value was increasing and failed to disclose that fact to Gordon. Indeed, he may not do so because they are amply supported by the evidence and its inferences. His response to the conclusion that he breached his duties as Gordon’s agent is to argue that he was only a purchaser and to cite Gordon’s testimony that Gordon believed $800.00 per acre was a fair price when he made the contract. The over-all import of the record is that when it served Ramsey’s purposes he would claim that under the contract he was Gordon’s agent, but that in fact he used the contract to speculate with the property to his personal advantage without disclosure to Gordon. As we have said, the court found that Ramsey was Gordon’s agent. Ramsey’s testimony supports that finding.

Whenever an agent breaches his duty to his principal by becoming personally interested in an agency agreement, the contract is voidable at the election of the principal without full knowledge of all the facts surrounding the agent’s interest. Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198, 201 (1944); Allison v. Harrison, 137 Tex. 582, 156 S.W.2d, 137, 140 (1941); 2 Tex.Jur.2d 572, Agency, § 122. In the Allison case, the court set forth as the “settled rule” that “an agent in dealing with a principal on his own account owes it to the principal not only to make no misstatements concerning the subject matter of the transaction, but also to disclose to him fully and completely all material facts known to the agent which might affect the principal; and that unless this duty on the part of the agent has been met, the principal cannot be held to have ratified the transaction.”

Other reasons for affirming the judgment are also brought forward by Gordon, but we need not examine them.

The judgment is affirmed.


author: SPURLOCK, Justice.

text:
    Richard L. GATES, Appellant, v. The CITY OF FORT WORTH and F. L. Priore, Appellees.
    No. 17979.
    Court of Civil Appeals of Texas, Fort Worth.
    June 8, 1978.
    Rehearing Denied June 29, 1978.

      Leeper & Priddy and Laurance L. Priddy, Fort Worth, for appellant.
    S. G. Johndroe, Jr., City Atty., John Gray, Asst. City Atty., Fort Worth, for appellees.
   OPINION

SPURLOCK, Justice.

This is a summary judgment case. Richard L. Gates (appellant) alleged that he received an on-the-job injury on December 16,1975, while employed by the City of Fort Worth in the Sanitation Division. He received a worker’s compensation settlement from the city. Gates received a release from his doctor for light duty work. The City of Fort Worth, acting through its personnel director, wrote two letters to Gates. By these letters, the City of Fort Worth informed Gates that until he received a full duty release from his doctor, the city could not “employ” him, since no light duty jobs were available. By his First Amended Original Petition and by his summary judgment proof, Gates contends that he was terminated because he had made a worker’s compensation claim against the City of Fort Worth. Defendants, City of Fort Worth and F. L. Priore (the city’s personnel director), moved for summary judgment. The trial court granted both defendants’ motions for summary judgment. Gates has perfected his appeal.

We affirm.

By his first four points of error, Gates basically contends that the trial court erred in rendering summary judgment, because Tex.Rev.Civ.Stat.Ann. art 8307c (quoted below) was available to him as a public employee.

Effective August 29, 1977, the Texas Legislature extended worker’s compensation coverage to certain employees of political subdivisions through the enactment of art. 8309h.

Art. 8307c, effective August 30,1971, provides:

Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.
Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
Sec. 3. The district courts of the State of Texas shall have jurisdiction, for cause shown, to restrain violations of this Act. Acts 1971, 62nd Leg., p. 884, ch. 115, Aug. 30, 1971.

With the extension of worker’s compensation protection to certain employees of political subdivisions, the Texas Legislature provided in art. 8309h the specific worker’s compensation laws which they were adopting as applicable to the covered public employee. Art. 8309h, § 3, which is captioned “[ajdoption of general workmen’s compensation laws,” provides that:

Sec. 3. (a) The following laws as amended or as they may hereafter be amended are adopted except to the extent that they are inconsistent with this article:
(1) Sections 1, 3, 3a, 3b, 4, 5, 6, 7, 7a, 7b, 7c, 7d, 7e, 8, 8a, 8b, 9, 10, 11, 11a, 12, 12a, 12b, 12c, 12c-l, 12c-2, 12d, 12e, 12f, 12g, 12h, 12i, 13,14,15,15a, 16,17,19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29 of Article 8306, Revised Civil Statutes of Texas, 1925, as amended;
(2) Sectionl, Chapter 248, General Laws, Acts of the 42nd Legislature, Regular Session, 1931, as amended (Article 8306a, Vernon’s Texas Civil Statutes);
(3) Sections 4a, 5, 5a, 6a, 7, 7a, 7b, 11, 12, 13, and 14 of Article 8307, Revised Civil Statutes of Texas, 1925, as amended;
(4) Article 8307b, Revised Civil Statutes of Texas, 1925, as added by Section 2, Chapter 261, Acts of the 45th Legislature, Regular Session, 1937;
(5) Sections 18 and 18a, Article 8308, Revised Civil Statutes of Texas, 1925, as amended;
(6) Sections 1, lb, 4, and 5, Article 8309, Revised Civil Statutes of Texas, 1925, as amended; and
(7) Section 7, Chapter 178, Acts of the 53rd Legislature, Regular Session, 1953 (Article 8309a, Vernon’s Texas Civil Statutes).
(b) Provided that whenever in the above adopted sections of Articles 8306, 8306a, 8307, 8307b, 8309 and 8309a of the Revised Civil Statutes of Texas, 1925, as amended the words “association,” “subscriber,” or “employer,” or their equivalents appear in such articles, they shall be construed to and shall mean “a political subdivision.”

We note that our Legislature did not include art. 8307c in the list of statutes made applicable to the public employees covered by art. 8309h. In essence, Gates asks that we extend the protection of art. 8307c to the public employee. This we decline to do, since we constitute an appellate court rather than the Legislature.

We hold that art. 8307c is not applicable to those public employees covered by art. 8309h. We overrule Gates’ first four points of error.

By his fifth point of error, Gates contends that “[t]he trial court erred in sustaining both defendants’ motions for summary judgment for the reason that the defense of governmental immunity should be held to be no longer available.” Thus, Gates basically asks this court to overrule the doctrine of governmental immunity. We must hold that the doctrine of governmental immunity is still a viable doctrine in Texas jurisprudence. Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978). We overrule Gates’ fifth point of error.

The judgment of the trial court is affirmed.

      . A11 statutory references are to Tex.Rev.Civ.Stat.Ann. (Supp.1978).


author: DUNAGAN, Chief Justice.

text:
    Robert F. BURNETT et al., Appellants, v. The FIRST NATIONAL BANK OF WACO, Texas, Appellee.
    No. 1145.
    Court of Civil Appeals of Texas, Tyler.
    June 8, 1978.
    Rehearing Denied June 29, 1978.

      Jack N. Price, Price & Williams, Austin, for appellants.
    P. M. Johnston, Sleeper, Williams, Johnston, Helm & Estes, Waco, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a summary judgment in a case involving issues of breach of trust and conversion, the case being styled The First National Bank of Waso, Texas v. Robert Franklin Burnett, et al.

The case involves the Burnett Trust, which was an irrevocable trust established by Clarence C. Burnett and wife, Gladys C. Burnett, as settlors, and The First National Bank of Waco, as trustee. Beneficiaries of the trust were Robert Franklin Burnett and Clarence Edward Burnett, sons of the set-tlors. This trust was dated December 30, 1950, and was to terminate January 5,1973.

The same settlors, Clarence C. Burnett and Gladys C. Burnett, had also established a second trust on October 20, 1964, which was a revocable trust called the C & G Trust. Once again, The First National Bank of Waco was named as trustee. There has been previous litigation with respect to the C & G Trust. The previous case was styled The First National Bank of Waco, Texas v. Clarence C. Burnett, Individually and as Representative of the C & G Trust and the Estate of Gladys C. Burnett, Deceased. Following judgment for the plaintiff, First National Bank of Waco, the case was appealed to the Court of Civil Appeals in Eastland, Texas, and judgment rendered for The First National Bank of Waco in an opinion appearing at 536 S.W.2d 600. The suit was predicated on Burnett’s guarantees to the bank on debts incurred by the C & G Trust of which the bank served as trustee. Burnett filed a counterclaim against the bank alleging the bank had failed to properly discharge its duties as trustee of the C & G Trust. Robert Franklin Burnett and Clarence Edward Burnett intervened individually and on behalf of their minor children who were the ultimate beneficiaries of the C & G Trust asserting a like cause of action as alleged by Clarence C. Burnett in his counterclaim.

The appellant in the instant case asserts that the appellee has not proven as a matter of law the absence of any genuine issue of material fact concerning whether the bank was guilty of improper self-dealing in lending money to the Burnett Trust and then, as Trustee of the Burnett Trust, using the funds to purchase the M & B Development note, the McKeathan note, and the Spell note from the C & G Trust, which the bank also administered as Trustee. This contention relies upon Article 7425b-13, V.A.C.S. (1960), which states:

“Trustees selling from one trust to another trust
“A trustee shall not as trustee of one trust sell property to another trust estate of which it is trustee, except bonds, notes, bills and other obligations issued, or fully guaranteed as to both principal and interest, by the United States of America, which may be so sold and transferred by the trustee, from one trust estate to another, at the current market price. Acts 1943, 48th Leg. p. 232, ch. 148 sec. 13.”

Article 7425b-13, V.A.C.S., is not controlling in the instant case. The Texas Trust Act goes on to say in Article 7425b~22, V.A.C.S. (1960):

“Power of trustor
“The trustor of any trust affected by this Act may, by provisions in the trust instrument creating the trust, or by an amendment of the trust if the trustor reserved the power to amend the trust, relieve his trustee from any or all the duties, restrictions, and liabilities which would otherwise be imposed upon him by this Act; or alter or deny to his trustee any or all the privileges and powers conferred upon the trustee by this Act; or add duties, restrictions, liabilities, privileges, or powers to those imposed or granted by this Act; but no act of the trustor shall relieve a corporate trustee from the duties, restrictions, and liabilities imposed upon it by Sections 10, 11, and 12 of this Act. Acts 1943, 48th Leg. p. 232, ch. 148 sec. 22.”

The Burnett trust agreement gave the Trustee the power “to transfer, assign, sell and convey any or all of the real or personal property constituting the Trust Estate upon such terms and for such consideration as in the exclusive judgment of the Trustee may seem to the best interest of the trust estate and to invest and reinvest the assets of the Trust Estate, whether such assets shall consist of the principal thereof or the income therefrom, in any nature of real or personal property, within or without the State of Texas, without being limited by the provisions of any law governing the investment of trust funds.” The trust goes on to allow the Trustee to invest in semi-proven oil, gas or mineral leases or royalties. The Trustee is also given the power “in its sole discretion, to do and perform any and all acts necessary or convenient in the handling of the trust property and in administering the Trust Estate and in carrying out the powers herein granted, and to execute any and all documents necessary or convenient in the handling of the trust property and in the administration of the Trust Estate and in carrying out the powers therein granted, to the same extent as if the Trustee were the owner of the full fee simple title to the trust property, it being understood that the enumeration of the specific powers herein need not be construed to in any manner limit the general authority hereby granted.”

It is apparent that the Burnett Trust instrument contains provisions that relieve the Trustee of any restrictions on investment. This is permitted by sec. 22 of the Texas Trust Act except as to secs. 10, 11 and 12 of the Act. Therefore, sec. 13 of the Texas Trust Act is not controlling in this case. The appellants virtually admit this fact in their brief.

Certainly the transfer of the three notes in question between the C & G Trust and the Burnett Trust cannot be said to violate the terms of the Burnett Trust and constitute improper self-dealing on the part of the appellee. The provisions of the Búrnett Trust that make these transfers proper under the Texas Trust Act must also be construed to allow these transfers under the Burnett Trust instrument itself. All of the provisions of the Burnett Trust instrument set out above are substantially similar to the provisions of the C & G Trust instrument that was litigated in Burnett v. First National Bank of Waco, supra, and held to be proper. We find no genuine issue of fact concerning whether the bank was guilty of improper self-dealing.

The appellant asserts that the appellee has not proven as a matter of law that there is no genuine issue of fact concerning whether the bank is guilty of imprudent investment and mismanagement in purchasing the three notes in question, at face value, with cash belonging to the Burnett Trust. The bank advanced money to the Burnett Trust to purchase the three notes in question and took as security for the loan some stock that was one of the assets of the Burnett Trust. Initially, we must note that the appellants in their first amended counterclaim seem only to have a singular complaint. The act of self-dealing comprises that complaint as pointed out in the pleading where appellants allege mismanagement and then specifically equate such to a violation of Article 7425b-13. The pleading goes on to complain of the “ . . . mismanagement as alleged above . . .”, when in fact the only act of mismanagement alleged is self-dealing. Nevertheless, we will examine the record to determine if the absence of any issue of fact concerning mismanagement has been proven by the appellee.

The appellee relies in part upon a clause contained in the Burnett Trust stating that the Trustee will not be held liable for any honest mistake in judgment. The appellee asserts that this clause prevents the Trustee from being held liable for any acts of negligence or mismanagement short of dishonesty. We cannot agree with this contention. The clause merely restates the well accepted principle that a Trustee will not be held liable for any honest mistake in judgment. However, a Trustee could exercise his fiduciary duty in such a negligent or supine manner that his lack of diligence would result in a breach of his fiduciary duty, without approaching the concept of dishonesty.

Having decided the exculpatory clause regarding the Trustee’s liability in the Burnett Trust does not alleviate the Trustee from liability under the allegations contained in the appellants’ petition, we must determine whether or not the other proof in the record establishes as a matter of law, when viewed in a light most favorable to the appellants that there is no genuine issue of material fact concerning imprudent or negligent mismanagement of the Burnett Trust. The record reflects that the assets of the Burnett Trust have increased in value from approximately $50,000.00 to approximately $1,000,000.00 during the time the assets were held in trust by the appel-lee. The depositions on file in this case by Robert Franklin Burnett and Clarence Edward Burnett reflect two basic complaints. The first of these is the interdealing between the two trusts that we have already discussed above. The second complaint is that the notes purchased by the Burnett Trust do not have a maturity date prior to the date of the termination of the trust. We do not feel this furnishes any basis for a claim of mismanagement against the Trustee. The depositions reflect that neither Robert nor Clarence E. Burnett have determined that the notes are unliquid. The only testimony in the record is that these notes are liquid. In any event, the trust instrument does not require that all the assets of the trust be of liquid nature at the date of termination. In fact, the trust specifically authorizes certain investments, for example, semi-proven oil leases and royalties, which certainly might not be of liquid nature at the date of the termination of the trust. The appellants’ personal financial preferences seem to be the basis of any complaint rather than the impropriety of any action taken by the Trustee in this case.

The question to be determined on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiffs’ cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969). On a motion for summary judgment, the burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). We have examined the record presented in this case and the evidence in a light most favorable to the appellants. We are of the opinion that no genuine issue as to a material fact exists in the case, and the appellants’ point of error is overruled.

The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    BRAZOS CONCRETE PRODUCTS, INC., Appellant, v. Bob BULLOCK, Comptroller of Public Accounts et al., Appellees.
    No. 5142.
    Court of Civil Appeals of Texas, Eastland.
    June 8, 1978.
    Stephen R. Fontaine, Sleeper, Williams, Johnston, Helm & Estes, Waco, for appellant.
    Myra A. McDaniel, Asst. Atty. Gen., Austin, for appellees.
   McCLOUD, Chief Justice.

Plaintiff, Brazos Concrete Products, Inc., sued defendants, Bob Bullock, Comptroller of Public Accounts of the State of Texas, Jesse James, Treasurer of the State of Texas, and John L. Hill, Attorney General of the State of Texas, seeking a $5,298.62 refund of sales taxes paid under protest. Following a non-jury trial, judgment was entered for defendants. Brazos Concrete Products, Inc., has appealed. We affirm.

Findings of fact and conclusions of law were filed. Brazos does not attack any of the fact findings, but contends the court erred in its conclusions of law that Brazos was not a “contractor” as defined in V.A. T.S. Tax.-Gen. art. 20.01(T) and, therefore, not entitled to the exemption provided for in V.A.T.S. Tax.-Gen. art. 20.04(Y).

Brazos manufactures prestressed and precast concrete items used in constructing highway bridges and large buildings. Brazos purchased two cranes (a Model 480 and Model 535), a loader, mixer, and metal muncher, which it contends were exempt from sales taxes because the equipment was used in the performance of contracts with exempt organizations.

Article 20.01(T) provides in part:

“(T) Contractor or Repairman. ‘Contractor’ or ‘Repairman’ shall mean any person who performs any repair services upon tangible personal property or who performs any improvement upon real estate, and who, as a necessary and incidental part of performing such services, incorporates tangible personal property belonging to him into the property being so repaired or improved. Contractor or repairman shall be considered to be the consumer of such tangible personal property furnished by him and incorporated into the property of his customer, for all of the purposes of this Chapter.”

The trial court found that Brazos’ first use of the equipment was in manufacturing concrete products for sale to two general contractors, Brown & Blakney, Inc., and Zack Burkett; the products manufactured for the contractors were delivered to the job site by Brazos; neither contractor is a tax exempt organization; the concrete products were incorporated into highways pursuant to contracts between the two contractors and the Texas Department of Highways and Public Transportation, a tax exempt organization; Brazos did not incorporate the concrete products into the highways; the Texas Department of Highways and Public Transportation is a tax exempt organization as defined in V.A.T.S. Tax.Gen. art. 20.04(H); during the audit period, Brazos did not use any of the equipment in question to incorporate or install concrete products manufactured by it into realty pursuant to a contract between Brazos and a tax exempt organization; the Model 430 crane was used by Brazos during approximately two percent of the audit period to incorporate or install products manufactured by it into realty which was owned by tax paying organizations pursuant, to contracts with tax paying organizations; during the audit period, Brazos never used the Model 535 crane, loader, mixer or metal muncher to install or incorporate into realty any concrete products manufactured by it; items manufactured by Brazos for incorporation into highways by pre-qualified contractors were manufactured in accordance with specifications furnished by the Texas Department of Highways and Public Transportation and were inspected by members of the Department; and, that during the audit period the Model 535 crane and the metal muncher were always used to manufacture concrete items which were incorporated into realty owned by tax exempt organizations.

Article 20.04(Y) provides in part:

“(Y) Contracts with Exempt Organizations. There are exempted from the computation of the amount of taxes imposed by this Chapter, the receipts from the sale, lease or rental of any tangible personal property to, or the storage, use or other consumption of tangible personal property by, any contractor for the performance of a contract for the improvement of realty for an exempt organization as defined in Section 20.04(H) of this Chapter or otherwise exempt from the taxes imposed by this Chapter to the extent of the value of the tangible personal property so used or consumed or both in the performance of such contract.”

The trial court held Brazos was not a contractor and not entitled to the exemption contained in Article 20.04(Y). We agree.

We are bound by the definition of “contractor” as defined by the Legislature in Article 20.01(T). Gifford-Hill and Company v. State, 442 S.W.2d 320 (Tex.1969). Contractor is defined in the Act as a person “who performs any improvement upon real estate, and who, as a necessary and incidental part of performing such services, incorporates tangible personal property belonging to him into the property”. Brazos did not incorporate its personal property into the realty. Brazos did not contract with Brown & Blakney or Zack Burkett to incorporate the concrete products into the realty. Brazos contracted only to deliver the products to the job site. The Comptroller issued Ruling 95-0.09 effective July 1,1971, which stated that the term, contractor, as defined

in the Act, would include subcontractor but would not include materialmen or suppliers. We think it is clear that Brazos was not a “contractor” as defined in the Act. Brazos was a materialman or supplier. The court in Huddleston v. Nislar, 72 S.W.2d 959 (Tex.Civ.App.—Amarillo 1934, writ ref’d) cited the following examples showing the distinction between the terms contractor and ma-terialman as ordinarily understood:

“A party furnishing stone, finished and ready for use in a building at the time of its delivery, is a materialman and not a subcontractor. Foster Lumber Co. v. Sigmi Chi Chapter House of De Pauw University, 49 Ind.App. 528, 97 N.E. 801.
‘One who furnishes to a contractor, but does not install, steel sash as called for by plans and specifications, and by whom working drawings are to be submitted for approval, and who neither employed nor performed any labor on the sash after delivery, is a materialman.’ Edward E. Buhler Co. et al. v. New York Dock Co. et al., 170 App.Div. 486, 156 N.Y.S. 457, 459.
A party who agreed with a contractor to furnish sand and gravel, acceptable to the city engineer, for street improvements, and delivered such material on the work as required, was a materialman and not a subcontractor. Neary et a 1. v. Puget Sound Engineering Co. et al., 114 Wash. 1, 194 P. 830.
‘Clinton’s contract was to furnish the stairs completed according to certain specifications for this particular house but not to attach them to the house or work on them after they were delivered on the premises. He contracted with appellant to build the stairs to fit these specifications and in short to do all that he (Clinton) contracted to do in regard to the stairs.’ Clinton was a materialman only, and appellant was not entitled to a lien because he furnished material to a materialman. Rudolph Hegener Co. v. Frost et al., 60 Ind.App. 108, 108 N.E. 16.”

In Duluth Steel Fabricators, Inc. v. Commissioner of Taxation, 306 Minn. 567, 237 N.W.2d 625 (1975), the court held that a fabricator of structural steel which sold steel specially manufactured for a specific building to a general contractor and also gave advice on installation, was a supplier and not a contractor. The court approved the decision of the Tax Court which stated, “ ‘ * * * Generally, suppliers are those who sell building materials. Contractors and subcontractors erect and construct the material into a building on the site.’ ”

Article 20.04(Y) exempts from the sales and use tax “. . . the receipts from the sale, lease or rental of any tangible personal property to, or the storage, use or other consumption of tangible personal property by, any contractor for the performance of a contract for the improvement of realty for an exempt organization . . ” The exemption is inapplicable to Brazos because Brazos did not meet the statutory definition of contractor and Brazos’ contracts were with private tax paying organizations which used the items manufactured by Brazos in connection with contracts entered into between the private corporations and tax exempt organizations. Brazos did not contract with the tax exempt organizations.

Tax exemptions are subject to strict construction since they are the antithesis of equality and uniformity. Hilltop Village, Inc. v. Kerrville Independent School District, 426 S.W.2d 943 (Tex.1968). We hold the trial court did not err in concluding that Brazos is not entitled to the exemption provided by Article 20.04(Y).

We have considered all points of error and all are overruled. Judgment of the trial court is affirmed.


author: JAMES, Justice.

text:
    RIVERSIDE CHEMICAL COMPANY, a subsidiary of Cook Industries, Inc., Appellant, v. Alvin G. HANSON, Appellee.
    No. 5905.
    Court of Civil Appeals of Texas, Waco.
    June 8, 1978.
    Roy B. Johnson, Fillmore & Camp, P. C., Fort Worth, for appellant.
    Jimmy R. Hinds, Arlington, for appellee.
   OPINION

JAMES, Justice.

This is a venue case, wherein Defendant appeals from the trial court’s overruling of its plea of privilege. We affirm.

Plaintiff-Appellee Alvin G. Hanson, a resident of Hamilton County, filed suit in Hamilton County against Defendant-Appellant Riverside Chemical Company, a subsidiary of Cook Industries, Inc., a foreign corporation with a permit to do business in Texas, to recover damages for injuries and death allegedly sustained by Plaintiff’s cattle as the result of spraying said cattle with a product manufactured and mislabelled by Defendant-Appellant. Plaintiff-Appellee Hanson used the product in question in Hamilton County.

Defendant-Appellant Riverside filed its Plea of Privilege to be sued in Dallas County, where its registered agent was located; whereupon Plaintiff-Appellee Hanson filed his Controverting Affidavit, alleging that venue properly lay in Hamilton County under subdivisions 7, 9a, 23, 27 and 31 of Article 1995, Vernon’s Texas Civil Statutes.

After hearing the trial court overruled Defendant’s Plea of Privilege, from which action of the trial court Defendant Riverside appeals on three points of error, to wit: (1) there is no evidence that any acts or omissions on the part of Defendant-Appellant were the proximate cause of any injury to Plaintiff-Appellee in Hamilton County; (2) no evidence that Defendant-Appellant breached an implied warranty in Hamilton County; and (3) no evidence that any breach of implied warranty was a proximate cause of any injury to Plaintiff-Appel-lee in Hamilton County. We overrule Appellant’s points and contentions and affirm the trial court’s judgment.

As stated, Defendant-Appellant Riverside is a subsidiary of Cook Industries, Inc., a foreign corporation having a permit to do business in Texas; Riverside’s principal business consists of sale and distribution of agricultural chemicals, fertilizers, application equipment, seed, animal feed, and animal health products. Riverside admitted by way of answers to Interrogatories that it manufactured, packaged, labelled, sold, and delivered to Rancher’s Supply, a retail store located at Cranfills Gap, in Bosque County, on July 19, 1976, a five-gallon container labelled “Malathion 5”; said Appellant further admitted that several such containers were mislabelled that were sold and delivered to Rancher’s Supply; Riverside first learned that it had mislabelled its product on November 9, 1976; that no mislabelled containers were sold to any retail outlets other than Rancher’s Supply; that six persons other than Plaintiff Hanson were caused to suffer losses or damages as a result of the use of such mislabelled product; that by a letter dated November 19, 1976, Defendant Riverside by and through its vice-president, C. Thomas Barnes, wrote to Plaintiff Hanson as follows:

“It is our understanding that you have in your possession approximately five gallons of a product which is labeled ‘Riverside Malathion 5’. We have reason to believe that this container or these containers may contain parathion instead of malathion. Parathion is a highly toxic substance and may injure or kill humans, domestic animals, or wildlife by oral ingestion, inhalation of vapors, or contact with any part of the body.
“We wish to pick up this material and return it to Riverside Chemical Company, 501 Texas Central Parkway, Waco, Texas, for holding at that facility. You may arrange to have us pick up this material by calling Riverside (collect) at Area Code (817) 772-7210.
“In the event you do not allow us to pick up the materials in question, you are hereby advised of the inherent poisonous nature of this product and you must take all necessary steps to insure that this material cannot be contacted by unauthorized personnel or domestic animals or unintentionally released into the environment. For your further information, we are enclosing a ‘Riverside Parathion 4’ label.”

Mr. David Sills, an officer of Defendant Riverside, testified in answer to written interrogatories as follows: the possible effects of “Parathion 4” on animals and on human beings are headaches, nausea, vomiting, cramps, weakness, blurred vision, pinpoint pupils, tightness in chest, labored breathing, nervousness, sweating, watering of eyes, drooling or frothing of mouth and nose, muscle spasms, and death; that Malathion is derived from a safe chemical, whereas Parathion is also an insecticide but has “very high toxicity.”

Plaintiff Hanson testified that he lives in Hamilton County, and has his ranch and cattle there; that on or about September 23, 1976, Plaintiff purchased from Rancher’s Supply a container labelled “Malathion 5” for the purpose of spraying his cattle to keep the ticks, flies, and lice off of them. The label on the container provided: “Directions for use: Livestock and poultry, beef cattle, horses and hogs: For control of lice, ticks, and horn flies, mix one to two gallons of Riverside Malathion 5 with 100 gallons of water and apply as a complete coverage spray — .”. Plaintiff Hanson further testified that he used the contents from that container as a spray to control ticks and lice on his cattle in Hamilton County; that he followed the directions on the label in spraying of his cattle; and that immediately upon spraying his cattle, they began to have violent reactions, and after he had sprayed some 108 head of cattle, twenty-eight head died.

Hubert B. Viertel, owner of Rancher’s Supply, testified that in July, 1976, he bought some containers filled with a substance from Riverside labelled, “Malathion 5”; that on or about September 22,1976, he sold one of these 5-gallon containers to Plaintiff Hanson; that shortly after this he learned that several head of Hanson’s cattle had died; that he went to Hanson’s place shortly after Hanson had sprayed, and personally saw several dead cattle on Hanson’s place; that there had been no change in the 5-gallon containers between the time he bought them from Riverside and sold one of them to Hanson.

As stated before, in his controverting Affidavit to Defendant’s Plea of Privilege, Plaintiff Hanson, among other grounds, sought to establish venue in Hamilton County under subdivisions 23 (suits against private corporations), 27 (suits against foreign corporations doing business in this State), and 31 (suits for breach of warranty by a manufacturer).

The venue facts necessary to be established by Plaintiff under subdivisions 23 and 27, as applicable to the instant case are: (1) that Defendant is a corporation; (2) that Plaintiff has a cause of action against Defendant; and (3) that such cause of action or a part thereof arose in Hamilton County. Stone Fort National Bank v. Forbess (1936) 126 Tex. 568, 91 S.W.2d 674; Van Waters & Rogers, Inc. v. Kilstrom (Waco, Tex.Civ. App.1970) 456 S.W.2d 570, 571 no writ; O. M. Franklin Serum Co. v. Hoover (Amarillo, Tex.Civ.App.1966) 410 S.W.2d 272, 273, writ refused, NRE in Tex., 418 S.W.2d 482.

Since venue facts (1) and (2) above are clearly existent, the specific problem before us is whether Plaintiff’s cause of action or a part thereof arose in Hamilton County. We believe that such cause of action or a part thereof did arise in Hamilton County, because it was there that the manufactured product was used and where the cattle died immediately after such spraying.

Appellant asserts there is no evidence of proximate cause in Hamilton County. The evidence is undisputed that the Defendant mislabelled the product, thereby misleading the Plaintiff to spray his cattle with a deadly poison in Hamilton County; there is evidence Plaintiff followed the directions on Defendant’s label on the container in spraying the cattle; that the cattle started dying by the time he completed his spraying. Any element of a cause of action, including proximate cause, may be established by circumstantial evidence. Bock v. Fellman Dry Goods Co. (Tex.Comm.App.1919) 212 S.W. 635, opinion approved; O. M. Franklin Serum Co. v. Hoover (Amarillo, Tex.Civ.App. 1966) 410 S.W .2d 272, 274, writ refused NRE in Tex., 418 S.W.2d 482. In our opinion there is substantial evidence of proximate cause in Hamilton County.

Appellant further contends there is no evidence of breach of implied warranty by Defendant-Appellant in Hamilton County; or that if there was any such breach, there is no evidence that such breach was a proximate cause of Plaintiff’s injury in Hamilton County. We overrule these contentions. In the case at bar, the Defendant put into the channels of commerce a deadly poison, and mislabelled the container so as to impliedly warrant its fitness for spraying cattle so as to kill insects; that Plaintiff followed the label directions in spraying his cattle in Hamilton County, thereby causing his damages. In the O. M. Franklin Serum Co. case cited hereinabove, a venue case similar in facts to the case at bar, the Court of Civil Appeals dealt with the case as one of breach of implied warranty; however, our Supreme Court, in a per curiam opinion wherein said court refused a writ of error, “No Reversible Error,” specifically held that the seller of a defective product is subject to strict liability for damage caused to the property of the ultimate consumer. O. M. Franklin Serum Co. v. Hoover (Tex.1967) 418 S.W.2d 482. In the case at bar, no exceptions were made to Plaintiff’s pleadings, and they may be reasonably construed as alleging a cause of action on strict liability. The evidence we have recited establishes this cause of action.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: AKIN, Justice..

text:
    C. B. CHANEY, Appellant, v. The COLEMAN COMPANY, INC., et al., Appellees.
    No. 19553.
    Court of Civil Appeals of Texas, Dallas.
    June 9, 1978.
    Rehearing Denied July 11, 1978.

      Virgil T. Seaberry, Jr., Turner, Seaberry & Warford, Eastland, for appellant.
    E. Glen Johnson, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Robert M. Green-berg, Dallas, for appellees.
   AKIN, Justice..

This is an appeal from an order overruling the plea of privilege of appellant C. B. Chaney, a third-party defendant. The plaintiff in the original action, who is not a party to this appeal, sued the Coleman Company, Graham Homes and Bob Parsons in Dallas County. Subsequently, appellees the Coleman Company and Graham Homes, filed a third-party action against Chaney for contribution and indemnity. The original plaintiff sought no relief from him. Chaney then filed his plea of privilege to have the third-party action transferred to his residence, Eastland County. Appellees sought to sustain venue under Tex.Rev.Civ. Stat. art. 2212a, § 2(g), Tex.Rev.Civ.Stat. Ann., art. 1995, §§ 4, 29a, and 30. The trial court overruled the plea and appellant appeals.

Appellees contend that since the third-party action is for contribution, venue is proper in Dallas County under Tex.Rev. Civ.Stat.Ann., art. 2212a, section 2(g) (Vernon Supp.1978). Article 2212a, section 2(g) provides:

All claims for contribution between named defendants in the primary suit shall be determined in the primary suit, except that a named defendant may proceed against a person not a party to the primary suit who has not effected a settlement with the claimant. [Emphasis added]

Appellant contends that this section is not applicable because he was not a defendant in the primary suit. We agree with appellant. The first phrase of article 2212a, section 2(g), states that all claims for contribution between named defendants shall be determined in the primary suit. This language does not apply to appellant because he is not a “named defendant” in the primary suit. Moreover, appellant is a person “not a party in the primary suit who has not effected a settlement with the claimant” in the primary suit. See Maintenance & Equipment Contractors v. John Deere Company, 554 S.W.2d 28, 30 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ). Thus, article 2212a, section 2(g) is unavailable to sustain venue in Dallas County with respect to appellant. As we read this statute, it would only apply if Chaney were a named defendant in the primary suit or if he were a joint tortfeasor, not a party to the primary suit, who had settled with the primary plaintiff. Winningham v. Connor, 552 S.W.2d 579, 583 (Tex.Civ.App.—Tyler 1977, no writ); LaSorsa v. Burr, 516 S.W.2d 265, 269 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Goodyear Tire & Rubber Co. v. Edwards, 512 S.W.2d 748, 753 (Tex.Civ.App.—Tyler 1974, no writ). In all of these cases, the third-party defendant was also a party defendant in the primary suit, whereas here Chaney was not a defendant in the primary suit. Consequently, we hold that venue under art. 2212a, § 2(g) may not be sustained in Dallas County as to appellant.

Appellees also argue that venue for the third-party action is proper in Dallas County under subdivision 30 of article 1995, Tex. Rev.Civ.Stat.Ann. (Vernon 1964), which provides that special venue provisions of other statutes are controlling. Since we have held that, venue is not controlled by article 2212a, § 2(g), and no other special venue statute is cited, venue of the third-party action must be determined under the other provisions of article 1995.

Appellees next argue that since venue is proper in Dallas County as to the defendants in the primary suit, subdivisions 4 and 29a of art. 1995 apply to hold venue in Dallas County as to the third-party defendant Chaney. We cannot agree because this contention ignores the fact that a third-party action is a distinct and severable cause of action. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 776 (1944). Thus, subdivision 4 is inapplicable since there is but one defendant in the third-party action. See Walker’s Service and Equipment Company v. Shipp, 466 S.W.2d 621, 626 (Tex.Civ.App.—Tyler 1971, no writ). Additionally, subdivision 29a is inapplicable because it may only be used in conjunction with another subdivision of article 1995 and no other subdivision has been asserted here, other than subdivision 4 which we have concluded does not apply.

For these reasons we hold that the trial court erred in overruling appellant’s plea of privilege. Accordingly, we reverse the order of the trial court overruling appellant’s plea of privilege and transfer the third-party action for contribution and indemnity to Eastland County.

Reversed and rendered.


author: ROBINSON, Chief Justice.

text:
    C. N. HARRISON et al., Appellants, v. Houston HUMPHRIES et ux., et al., Appellees.
    No. 8881.
    Court of Civil Appeals of Texas, Amarillo.
    June 12, 1978.

      Underwood, Wilson, Sutton, Berry, Stein & Johnson, R. A. Wilson, Amarillo, for appellants.
    V. G. Kolius, Amarillo, for Houston Hum-phries, et ux.
    Stokes, Carnahan & Fields, Barry Peterson, Amarillo, for Multivest.
    Timothy E. Kelley, Dallas, and Kolander & Hamilton, R. C. Hamilton, Amarillo, for American Home Assurance Co.
   ROBINSON, Chief Justice.

This appeal is from an order of the trial court overruling the pleas of privilege of defendant Fireplace Place. Affirmed.

Houston and Dorothy Humphries were tenants in Tiffany Square, an apartment complex located in Potter County and owned by Multivest Real Estate Fund Ltd., Series VI d/b/a Tiffany Square. American Home Assurance Company insured the apartment building. Joe Hastey, C. N. Harrison and Larry Morris were a partnership doing business as Fireplace Place, the subcontractor which installed the fireplace in the Humphries’ apartment.

On October 25, 1975, a fire occurred in the fireplace chimney chase damaging the apartment building and the Humphries’ personal property. The Humphries and Multivest each sued Fireplace Place in Potter County alleging that negligent installation of the fireplace caused their respective damages. Multivest also alleged that its insurer, American Home Assurance Company, had paid Multivest’s claim for damages to the building and was subrogated to Mul-tivest’s claim for damages against Fireplace Place. American Home filed a plea in intervention asserting its subrogation right and asking to appear before the jury as Multivest.

Fireplace Place filed pleas of privilege to be sued in Lubbock County, the county of its residence, on all claims against it. The Humphries controverted the plea, alleging venue under subdivision 9a, Tex.Rev.Civ. Stat.Ann. art. 1995. Multivest also controverted, alleging venue under both subdivisions 9a and 14. Multivest’s subrogee, American Home, did not file a controverting plea in its own name. The trial court overruled the pleas of privilege.

Fireplace Place appeals challenging the evidentiary support for the trial court’s order and also contending that American Home Assurance Company may not rely on the controverting plea filed by Multivest.

We overrule the contention by Fireplace Place that the controverting plea filed by Multivest cannot inure to the benefit of Multivest’s intervening subrogee. The claim of Multivest and the claim of American Home are one and the same. There is no dispute that any recovery on Multivest’s claim against Fireplace Place is payable to American Home. Intervening American Home seeks no other relief. As subrogee it acquired all the rights of the original claimant. It was entitled under the doctrine of subrogation to assert those rights in a suit brought in the name of Multivest. Ligon v. E. F. Hutton & Company, 428 S.W.2d 434 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). Further, venue between the intervenor and the defendant depends on the venue of the original cause of action. May v. Little, 473 S.W.2d 632 (Tex.Civ.App.—El Paso 1971, writ ref’d n. r. e.); McDonald’s Texas Civil Practice § 3.49.

Both the Humphries and Multivest seek to maintain venue in Potter County under Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 9a. To establish venue under subdivision 9a, a plaintiff must prove three elements:

(1) that an act or omission of negligence occurred in the county where suit was filed;
(2) that such act was the act of defendant;
(3) that such negligence was a proximate cause of plaintiff’s injuries.

The trial court did not file findings of fact and conclusions of law. In such circumstance it is presumed that the trial court found such facts as are necessary to support its verdict. Starr Gas Co. v. Employers Casualty Co., 436 S.W.2d 188 (Tex. Civ.App. — El Paso 1968, writ dism’d). Therefore, we have considered the evidence in the light most favorable to the presumed findings. We conclude that there is some evidence of each of the elements required to maintain venue in Potter County under subdivision 9a.

Larry Morris, one of the partners in Fireplace Place, testified that a flue installed without a two-inch clearance would be improperly installed according to the manufacturer’s recommendations and that the purpose of the two-inch clearance was “so things won’t catch on fire.” Both Houston Humphries and John Johnson, the Chief Heating Inspector for the City of Amarillo, testified that there was no clearance between the pipes and the combustible wooden surface. Johnson also testified that the vent sections were not secured or latched and that supports for the vent pipes were not connected. He testified that there was a separation in the vent pipes from the time of installation and that in his opinion the fire was caused by direct heat exposure through the separation or a radiant heat transfer from the pipes leaning against the wooden frame.

We overrule appellant’s contention that Johnson’s testimony concerning the cause of the fire is incompetent and therefore no evidence of that fact. Johnson had several years of schooling in heating and air conditioning, had completed 160 hours of a building course approved and certified by the Municipal Building Inspection Association, and had contracted heating work for several years in Amarillo. As Chief Heating Inspector for the City of Amarillo, Johnson had experience inspecting prefabricated and manufactured fireplaces in residence buildings.

The testimony of an expert witness is received on the theory that he possesses a knowledge or skill not had by people generally. Whether the person offered as an expert possesses the required qualification is a preliminary question to be determined by the trial judge. The trial judge’s determination will not be overturned in the absence of a clear showing of abuse of his discretion. Wilson v. Scott, 412 S.W.2d 299 (Tex.1967); McCormick & Ray, Texas Law of Evidence §§ 1400-01 (2d ed. 1956). We do not find that the trial judge abused his discretion in admitting and considering the testimony of Johnson.

Fireplace Place also contends that it cannot be liable for any negligence of the installers because the installers were independent contractors.

The test for determining whether a worker is an employee or an independent contractor is whether or not there is a right to control the details of performance of work. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964). This test was discussed by the court in Keith v. Blanscett, 450 S.W.2d 124, 127 (Tex.Civ.App.—El Paso 1969, no writ):

[T]he independent contractor, as distinguished from an employee, performs work according to his own methods and without being subject to the control of his employer, except as to the result of the work. As to the element of control, the right of control, rather than the exercise of the right, is decisive.

In his deposition, Larry Morris, a partner of Fireplace Place, testified that he was in charge of the actual installation of fireplaces at Tiffany Square. Morris testified that he made weekly inspections of the installation work. He said that he would “line out a week’s worth of work” to be done, and that he told the installers “which unit to be worked in, and the number of pieces of pipe to be used that we figured on the job.” In addition to supervising and inspecting the installation work, Morris personally worked on the installation of the chimney flue in' the apartment that caught fire. Morris’ testimony is evidence that Fireplace Place had the right to exercise control and actually exercised the right of control over the details of installation of the fireplaces and chimneys at Tiffany Square. Thus, there is evidence from which the trial judge could conclude that the acts of the installers were the acts of Fireplace Place.

We have considered all of the evidence, both favorable and unfavorable to the deemed findings that venue in Potter County was proper under subdivision 9a, and conclude that the findings are not against the great weight of the evidence so as to be manifestly unjust.

The foregoing holdings are dispositive of this appeal. Therefore, we do not reach appellants’ remaining points of error. The order of the trial court overruling the pleas of privilege is sustained. Affirmed.

      . The Humphries’ Original Petition named Mul-tivest as the only defendant. Multivest alleged a cause of action for indemnity and contribution against third party defendants Robert Sea-berry and Gaines Bonner d/b/a R % G Development Company, American Standard Company, and Fireplace Place. R & G Development built the apartment complex and American Standard manufactured the metal fireboxes and flues. Before the ruling on the pleas of privilege, the Humphries amended their pleadings and also asserted a cause of action against R & G Development, American Standard, and Fireplace Place.
      After the ruling on the pleas of privilege, the Humphries took a non-suit against Multivest. Additionally, non-suits were taken on all of the causes of action against R & G Development and American Standard, but the Humphries’ cause of action against Fireplace Place and Multivest’s action against Fireplace Place for damages to the apartment building were expressly excepted from the motion and order of non-suit.


author: GUITTARD, Chief Justice.

text:
    Susan C. HART, Appellant, v. KELLER PROPERTIES, Appellee.
    No. 19556.
    Court of Civil Appeals of Texas, Dallas.
    June 12, 1978.
    Lanny E. Perkins, Fiedler & Fortescue, Richardson, for appellant.
    Guy W. Hull, II, Garland, for appellee.
   GUITTARD, Chief Justice.

This suit began in the justice court as a forcible detainer action to recover possession of an apartment. On appeal by the lessee to the county court at law, the lessor claimed damages for occupancy of the premises after termination of the lease and pending trial de novo. The court rendered judgment against the lessee for $3,175 based on a provision in the lease for a payment of three times the rent otherwise provided as a penalty for withholding possession. The lessee appeals, contending that the measure of damages is the reasonable rental value for the period of withholding. We agree, and, accordingly, we reverse the judgment and remand the cause for a new trial.

The lessee objected in the trial court to evidence of the contents of the lease on the ground that the measure of damages was the reasonable rental value of the property rather than the amount provided in the lease. Admission of the lease over this objection is the only complaint on this appeal.

We conclude that the lease was not admissible for the purpose of establishing damages. The rule is settled that the measure of the lessor’s damages for withholding possession pending appeal of the forcible detainer action is the reasonable rental value. Stewart v. Breese, 367 S.W.2d 72, 74 (Tex.Civ.App. — Dallas 1963, no writ); Snyder v. Tousinau, 177 S.W.2d 799, 800 (Tex.Civ.App. — Galveston 1944, no writ).

The lessor argues that the present lease, unlike the leases in the cases cited, expressly provides for the contingency of withholding of possession after termination of the lease and that by holding over, the lessee became a tenant at sufferance and was bound by all the lease terms, including the penalty of treble damages. We do not agree. We recognize that the parties to a contract may make provision for liquidated damages in the event of a breach when actual damages are difficult to determine and the amount agreed on is a reasonable forecast of just compensation. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952); Roberts v. Dehn, 416 S.W.2d 851 (Tex.Civ.App.—Dallas 1967, no writ). Lessor, however, does not seek to justify the treble-damage provision on this basis. In both his pleading in the trial court and his brief in this court he frankly characterizes it as a penalty. As such, it cannot prevail over the legal measure of damages. Consequently, the trial court erred in admitting it for that purpose.

The lessor further argues that the lessee, by failing to except to the allegation in the petition concerning the penalty, waived any complaint of the measure of damages as pleaded, citing Stewart v. Breese, 367 S.W.2d 72 (Tex.Civ.App.—Dallas 1963, no writ), supra. In Stewart, however, the court held that the lessee’s objection to lessor’s allegation of an improper measure of damages was waived by the lessee in neither excepting to the pleading nor objecting to the evidence. In this case, although the lessee did not except to the petition, she did object to the evidence of the contents of the lease whenever such evidence was offered. Consequently, we hold that the objection was not waived.

Since the trial court’s erroneous admission of the lease for the purpose of determining damages resulted in a judgment on the penalty provision rather than on the legal measure of damages, its judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

      . These decisions are based on Rule 752 of the Texas Rules of Civil Procedure, which carried forward a former statute allowing recovery of damages in a forcible detainer action for withholding possession pending appeal. Rule 752 has since been amended to provide, “Damages may include but are not limited to loss of rentals during pendency of the appeal.” We construe this amendment as making no change in the measure of damages, which is a matter of substantive law rather than procedure. The apparent purpose of the amendment is to permit either party to recover in the forcible de-tainer action whatever damages he may be able to establish for withholding possession pending trial de novo.

      . We do not pass on the question of whether the monthly rental provided in the lease would be admissible as evidence of reasonable rental value, although it would not be conclusive under the authorities cited.


text:
    Russell A. FIRESTONE, Jr., Appellant, v. Linda Langley FIRESTONE, Appellee.
    No. 19551.
    Court of Civil Appeals of Texas, Dallas.
    June 12, 1978.

      Willis E. Kuhn, II, Moore & Peterson, Dallas, for appellant.
    Robert L. Meyers, III, Meyers, Miller & Middleton, Dallas, for appellee.
   GUITTARD, Chief Justice.

Russell Firestone brought this action against his former wife, Linda Firestone, to declare void a provision in their separation agreement requiring him to make periodic payments for her support after divorce. The trial court rendered summary judgment denying declaratory relief. Russell appeals on the ground that since the separation agreement was merged into the divorce decree, the obligation to make the payments constituted alimony after divorce and, therefore, was void. We conclude that the provision for periodic payments is enforceable as a matter of contract and, therefore, the obligation is not alimony.

The summary-judgment proof shows that the parties were divorced in 1961 by a decree of the Domestic Relations Court of Dallas County, which approved and incorporated by reference a formal separation agreement. Neither the agreement nor the divorce decree lists specifically all the property divided. The division is made in paragraph 3 of the agreement. This paragraph sets apart to Linda certain vehicles and personal items and “a house and lot at Hurst, Texas, provided for Linda’s mother,” and provides that on granting the divorce, “Russell shall create a trust for the benefit of Linda and the child with The Cleveland Trust Company, Cleveland, Ohio, as Trustee, in the form attached hereto, . the corpus of which shall consist of 6,000 shares of the common stock of The Firestone Tire and Rubber Company.” The terms of this trust are not in the record before us. Linda agrees to convey to Russell all her interest in a house in Palm Beach, Florida, and further agrees that Russell “shall receive all other real property located in Texas or elsewhere.” Paragraph 3 further provides “the division of properties as provided in this paragraph 3 is intended to be full and complete.”

The support obligation is contained in paragraph 5 of the agreement, which provides, in part, as follows:

5. Russell recognizes that as his wife Linda has a right to continued support by Russell and that he has a legal obligation to furnish to Linda such continued support; and in consideration of Linda’s giving up said right of such continued support and in discharge of Russell’s said obligation, during his lifetime Russell agrees to pay or cause to be paid to Linda during her lifetime periodic payments as set forth hereinafter in this paragraph 5:

Following this paragraph are detailed provisions concerning monthly payments and the manner in which they are to be determined on various contingencies, including a limitation based on Russell’s monthly income.

The divorce decree recites that the agreement and division of property “and other obligations assumed by defendant” are just, fair and equitable, and it orders “that said Agreement for settlement of property rights and for child custody and support and for alimony to Linda Langley Firestone dated June 16, 1961 (made a part hereof by reference as fully as though copied at length herein) be, and is hereby in all things confirmed and approved, and the division of property set forth in said settlement agreement between plaintiff and defendant is hereby in all things confirmed and approved . and the plaintiff, Linda Langley Firestone, is hereby granted judgment against Russell A. Firestone, Jr. for the relief, property and payments as provided in said agreement.”

Russell contends that since the decree in effect, orders him to make the payments, which are separate and apart from the property division, such payments constitute alimony after divorce, contrary to the public policy of Texas. He points out that a complete division of the property is made in paragraph 3, which expressly recites that it is “intended to be full and complete,” and that the only consideration stated for the periodic payments provided in paragraph 5 is that Russell “recognizes that as his wife, Linda has a right to continued support by Russell and that he has a legal obligation to furnish to Linda such continued support.” He argues that since no such right to support after divorce exists in Texas, the support payments constitute alimony, and the court’s judgment against him for such payments is void. In support of this argument, he cites In re Long, 542 S.W.2d 712 (Tex.Civ.App. — Texarkana 1976, no writ); and Benedict v. Benedict, 542 S.W.2d 692 (Tex.Civ.App. — Fort Worth 1976, no writ), both of which may be distinguished on the ground that neither involved a contractual agreement to make periodic payments. He also cites McBride v. McBride, 256 S.W.2d 250 (Tex.Civ.App.—Austin 1953, no writ), which was expressly disapproved by the supreme court in the leading case of Francis v. Francis, 412 S.W.2d 29, 33 (Tex.1967).

In Francis the decree was based on a settlement agreement by which all community property was set aside to the husband, who signed a promissory note providing for monthly installment payments to the wife. The decree found the agreement to be fair, just and reasonable and ordered it approved and filed. The supreme court affirmed. Chief Justice Calvert, writing for the court, said that the alimony which contravenes the public policy of the state is “only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce,” and that the obligation assumed by the husband in separation agreements or contracts to make payments for the support of the wife after a divorce are not obligations to pay alimony and do not violate the public policy of the state. The chief justice went on to say that the parties should be encouraged to settle their property rights, and that if, as a part of this settlement, the parties agree that the husband will make support payments to the wife after divorce, approval of the agreement by the court should not be held to invalidate it as alimony. Such an agreement, he continued, “will then have whatever legal force the law of contracts will give to it.” From this opinion, it is clear that a contractual agreement to make support payments after divorce cannot be held invalid on the sole ground that it contravenes the public policy of the state against alimony.

The Francis opinion does not expressly pass on .the question of whether a contractual promise to make support payments is enforceable if it is both provided by a separation agreement and ordered by the court in the divorce decree. Russell argues that the present agreement is void because it has been merged into the decree, which expressly awards judgment against him for the payments provided in the agreement. He takes the position that although the agreement may have been enforceable as a contract if it had been simply approved by the court, as was the agreement in Francis, it loses its force as a contract if the court incorporates it into the decree and expressly renders judgment in the terms of the agreement.

We see no reason why the decree should thus destroy the contractual force of the agreement. This very argument was made and authoritatively rejected as “tenuous” in Republic National Bank of Dallas v. Beaird, 475 S.W.2d 344 (Tex.Civ.App.—Beaumont 1972, writ ref’d). Although the judgment in the present case may not be enforceable by contempt proceedings, as is alimony pending divorce, the contractual obligation remains, and, in the words of the Francis opinion, has “whatever legal force the law of contracts will give to it.”

Russell makes no contention here that the provision in paragraph 5 for support payments is void for lack of consideration. Consequently we do not reach the question as to whether paragraph 5 js a separable part of the agreement and is unenforceable because not supported by any consideration other than an obligation for support which could not survive the divorce.

Affirmed.


author: ROBERTSON, Justice.

text:
    James H. GOETZ, Appellant, v. Sybil GOETZ, Appellee.
    No. 19404.
    Court of Civil Appeals of Texas, Dallas.
    June 13, 1978.
    Rehearing Denied July 11, 1978.

      Robert G. Bush, III, Sherman, for appellant.
    Jack G. Kennedy, Kennedy, Minshew, Evans, Campbell & Cain, Sherman, for appel-lee.
   ROBERTSON, Justice.

This case concerns the division of property owned by James H. Goetz, appellant, and Sybil Goetz, appellee, who were divorced in April, 1975. We previously reversed the original property division, see Goetz v. Goetz, 534 S.W.2d 716 (Tex.Civ.App.—Dallas 1976, no writ), remanded the case for a new trial. Upon trial to the court, a new division decree was rendered. Since we conclude that the trial court erroneously included certain property in its decree which was not subject to division, we modify the judgment in that regard. With respect to the remainder of the decree, we affirm.

The primary question on this appeal is whether the trial court abused its discretion in ordering the present property division. The resolution of that question hinges upon four basic issues: first, we must decide whether the trial court erroneously applied marital property law to the division on remand, rather than the rules applicable to partition between co-tenants; secondly, we must determine whether the trial court erred in ordering appellant to transfer certain bonds which were pledged as security for a loan; third, we must decide whether the trial court erred by including in its division certain property to be received by Goetz Oil Company, a corporation wholly owned by appellant, James H. Goetz; and finally, we must determine whether the overall property division is so manifestly unjust as to amount to an abuse of discretion.

1. Applicable Property Division Standards

Appellant argues that the trial court erred in applying marital property law to the division of the property upon remand. He urges that since the original appeal of the case only challenged the trial court’s property division, the case was not remanded as a divorce action, but rather as a suit for partition of property between co-tenants. To support this contention, he cites Smith v. Cooper, 541 S.W.2d 274 (Tex.Civ.App.—Texarkana 1976, no writ), which holds that an action to divide marital property after divorce is governed by the rules applicable to partition suits between co-tenants. However, Smith does not control the present case. In Smith, the suit for division of property was necessary because a prior final decree of divorce did not divide the parties’ estate. Thus, Smith restates the settled rule that when a divorce judgment does not divide the estate of the parties, title to the property vests in the divorced parties as • co-tenants. See also Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Kirkwood v. Domnan, 80 Tex. 645, 16 S.W. 428 (1891). In the present case, however, the original divorce decree did dispose of the parties’ property, but the decree did not become final in that respect because of the appeal and remand by this court. Our limited remand of the property division issue did not change the essential marital character of the dispute. It remained a matter of division of the estate of the parties within section 3.63 of the Texas Family Code. Traditionally, appellate disposition of a case by “remand” has meant to send a cause back to the court from which it was appealed so that further proceedings may be taken upon it in its original form. See Hadlock v. Cupp, 1 Or.App. 62, 457 P.2d 666, 667 (1969); State ex rel. Norfleet v. Swafford, 184 Tenn. 340, 198 S.W.2d 1007, 1009 (1947). Therefore, we hold that the rule stated in Smith v. Cooper, supra, only applies to cases where one of the parties brings a separate suit for property division after divorce. It does not apply to cases where an appellate court has merely reversed and remanded a property division which was made in the divorce decree. Thus, the trial court properly applied marital property law to the property division in this case.

2. The Bond Transfer

Appellant next argues that the trial court lacked jurisdiction to award bonds to appellee because the bonds had been pledged as security for a loan made by a third party to J.H.G. Corporation. As we understand this contention, appellant urges that although the bonds were community property, the act of pledging the bonds as security operated to transfer title from the community to the pledgee. Consequently, appellant argues, the court lacked authority to order the transfer of the bonds. We cannot accept this argument. The pledging of the bonds as security for a loan did not transfer beneficial title to the pledgee; rather, appellant, as pledgor, retained title to the pledged property and only a security interest vested in the pledgee. See Cecil v. Wise, 109 S.W.2d 214 (Tex.Civ.App.—Eastland 1937, writ ref’d); San Angelo Hilton Hotel Co. v. B. B. Hail Building Corp., 60 S.W.2d 1049 (Tex.Civ.App.—Austin 1933, no writ) (both cases decided under the law prior to the Uniform Commercial Code). Since Tex.Bus. & Com.Code Ann., § 9.311 (Tex. UCC 1968) provides that a debtor’s rights in the collateral may be “voluntarily or involuntarily transferred” by judicial process, we conclude that the trial court had authority to direct appellant to transfer title in the bonds to appellee. Of course, any title involuntarily transferred by judicial order would be subject to the security interest created by the pledge. Tex.Bus. & Com.Code Ann., § 9.306(b) (Tex. UCC 1968). This is because appellee, being a party to the suit in which the transfer is made, is not a “buyer in the ordinary course of business” who could take the collateral free of the security interest by virtue of a sale from a person in the business of selling these types of goods. See Tex.Bus. & Com. Code Ann., §§ 1.201(9), 9.307(a) (Tex. UCC 1968); Apeco Corporation v. Bishop Mobile Homes, Inc., 506 S.W.2d 711, 718 (Tex.Civ. App. — Corpus Christi 1974, writ ref’d n. r. e.).

3. The Debt Owed to Goetz Oil Company

In its decree, the trial court ordered appellant to pay appellee the sum of $36,000 in monthly installments of $1,500 each. According to the court, the $36,000 was to be paid from “the proceeds owing James H. Goetz by Quick-Fill of North Texas, Inc., evidenced by a lease option agreement dated September 26, 1975.” However, the lease option agreement was not between appellant and Quick-Fill, but rather between Goetz Oil Company and Quick-Fill. It was not executed by appellant in his individual capacity; rather, it was signed in his capacity as president of Goetz Oil Company. Appellant urges that since the $36,-000 was owed to the corporation rather than to him individually, the corporate income was not subject to division. Appellee argues, however, that appellant was the alter ego of Goetz Oil Company, and the corporate income was thus divisible. We cannot accept appellee’s alter ego contention, for there is no evidence that the corporate entity was being used in that capacity. Generally, courts cannot disregard the corporate entity unless the corporation has been employed to defraud existing creditors, circumvent a statute, evade an existing obligation, protect crimes or perpetrate a monopoly. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955); Hicks v. Wright, 564 S.W.2d 785, 796 (Tex.Civ.App.—Tyler 1978); Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712, 718 (Tex.Civ.App.—Dallas 1977, writ ref’d n, r. e.).

Although findings of fact and conclusions of law were filed in this case, there was no finding that appellant employed the corporate form of Goetz Oil Company for

an improper purpose or that he used it to deprive appellee of her community property rights. Such a finding cannot be implied under Rule 299 of the Texas Rules of Civil Procedure, for the evidence does not support such an implication. The only evidence adduced at trial was that appellant was the sole shareholder arid president of Goetz Oil Company, and that there had been indiscriminate transfers of funds between appellant, J.H.G. Corporation, and Goetz Oil Company which were not properly documented in the corporate records. This evidence does not justify an implied finding of improper use of the corporate form to appellee’s detriment. Sole ownership and control does not justify disregarding the corporate entity, see Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 224 (1943); Evans v. General Ins. Co. of America, 390 S.W.2d 818, 822 (Tex.Civ.App.—Dallas 1965, no writ), and even if undocumented fund transfers were made, there is no evidence that the transfers were made for an improper purpose, such as to defraud creditors or evade a statutory obligation. This error does not require reversal, however, for the decree can be reformed to effectuate the trial court’s intentions in ordering the payment. The properties covered by this lease-option agreement were community property, and the $36,000 payment from the lease proceeds was apparently ordered to compensate for the court’s awarding those properties to appellant in its decree. While it is true that the trial court erred in ordering appellant to pay over corporate income, the decree can nevertheless be reformed by ordering an equivalent $36,000 payment in monthly installments of $1,500 each from non-specified sources and securing that payment with a lien on the properties leased to Goetz Oil Company and awarded to appellant in the decree. Such a modification would effectuate the trial court’s intent to make the $36,000 payment referable to items of community property awarded to appellant, and the imposition of an equitable lien to secure payment would be in accord with accepted practice. See Mea v. Mea, 464 S.W.2d 201 (Tex.Civ.App.—Tyler 1971, no writ); Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App. — Fort Worth 1963, writ dism’d). Accordingly, we will modify the judgment in this respect.

4. The Complete Division

Finally, appellant argues that the overall property division ordered by the court is so manifestly unjust as to amount to an abuse of discretion. Before analyzing the division, however, we note that section 3.63 of the Family Code vests a trial court with broad discretion to divide the property of the parties in a manner which it deems “just and right.” Eichelberger v. Eichelberger, 557 S.W.2d 587, 589 (Tex.Civ.App.—Waco 1977, writ dism’d); Musslewhite v. Musslewhite, 555 S.W.2d 894, 897 (Tex.Civ.App.—Tyler 1977, writ dism’d). Accordingly, appellant has the heavy burden here of a show that the trial court’s division of property is not “just and right.” See Musslewhite v. Musslewhite, supra.

It is apparent from the decree that appellant has a greater net estate after division than appellee. Nevertheless, he argues that the abuse of discretion did not occur in the division of values, but rather in awarding substantially all of the liquid assets (e. g., stocks, bonds, and cash) to appel-lee, thus placing him in a position of genuine hardship because his principal occupation is the use of available funds in the buying and selling of property. We cannot accept this argument, for there is no evidence that appellant will suffer any hardship under this decree. He owns several items of personal property, as well as a substantial interest in an apartment complex, and there is no showing that these cannot be liquidated without undue hardship. Presumably, the trial court considered this before entering the decree, and we cannot say that the present division is an abuse of discretion.

We do not address the remaining points of error, for they deal with questions over which we have no appellate jurisdiction, namely, the trial court’s power to hold appellant in contempt for disobeying its orders. If appellant is imprisoned for his disobedience, his sole remedy is by writ of habeas corpus. Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967); Garrison v. Garrison, 544 S.W.2d 797 (Tex.Civ.App.—Austin 1977, no writ).

Accordingly, the portion of the trial court’s judgment which directs appellant to pay $36,000 from the proceeds of the lease agreement with Quick-Fill of North Texas, Inc., is modified to direct appellant to pay the cash sum of $36,000 in monthly installments of $1,500; and appellee is granted a lien against the properties covered by the lease to secure the payment of the $36,000. The remainder of the judgment is affirmed.

      . For the purpose of this discussion, we assume, without deciding, that the prior appeal of this case was only from the property division portion of the judgment.

      . These pre-code cases remain viable to the extent they are necessary to determine the location of title, which is unanswered by the Code. See Tex.Bus. & Com.Code Ann., § 1.103 (Tex. UCC 1968) (which preserves prior law except to the extent of conflict with the code).

      . This same rationale applies to the trial court’s finding that J.H.G. Corporation was an “alter ego” of James H. Goetz. This error was rendered harmless by the trial court’s failure to render any judgment affecting J.H.G. Corporation.

      . Although appellant testified that Goetz Oil Company made the payments on these properties, he also confirmed that title to the land was taken by the parties in their individual capacity. He further stated that Goetz Oil Company was wholly owned by his wife and himself at the time of the purchase.

      .The two tracts which are the subjects of the lease are not specifically mentioned in the decree; however, after specifying certain properties to be awarded to appellee, the court awarded “all of the remaining community property of the parties” to appellant. The unspecified tracts were awarded by this residuary section.