text:
    Marvin THOMAS, Administrator, Appellant, v. Thomas L. WHALEY et ux., Appellees.
    No. 8503.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 13, 1977.
    Rehearing Denied Feb. 7, 1978.

      R. Gilbert Shivers, Jefferson, for appellant.
    Ernest F. Smith, Marshall, Philip Brin, Longview, for appellees.
   RAY, Justice.

This is a trespass to try title case. Appellant (plaintiff), Marvin Thomas, administrator of the Estate of Richard M. Harris, Deceased, brought suit against Thomas L. Whaley and wife, Patricia Pope Whaley, seeking to set aside and cancel a deed from Louise A. Iliff, Guardian of the Person and Estate of Richard Murray Harris, to Thomas L. Whaley and wife, Patricia Pope Wha-ley. As grounds for appellant’s suit, it was alleged that the application seeking the appointment of a guardian for Richard Murray Harris was not sufficient to cause the County Court of Harrison County to exercise its jurisdiction to make the appointment of a guardian. Trial was had in the District Court of Harrison County without a jury. Judgment was rendered in favor of the Whaleys. Appellant has perfected his appeal and submits one point of error for our consideration.

The point of error is as follows:

“The district court erred in not finding that title was still in the estate of the deceased, because the application for guardianship, stating only that he ‘has been seriously ill’, was insufficient to show that he was either incompetent or of unsound mind, Probate Code, Sec. 3(p), (y).”

The record reflects that James S. Harris was married twice and that two sons, James Harris, Jr., also known as James W. Harris, and Richard Murray Harris, were children by his first marriage and that Penelope Harris Jones is the only child of his second marriage. The property involved in this suit was devised to Richard Murray Harris under provisions of the will of his father, James S. Harris, Deceased. The record further reflects that on February 20,1974, at a time when Richard Murray Harris was 48 years of age, his mother, Louise A. Iliff, filed an application for Letters of Guardianship of the person and estate of Richard Murray Harris alleging that her son had been seriously ill and was incapable of managing his property and financial affairs. On the same date, citation was issued to all persons interested in the welfare of the person and estate of Richard Murray Harris, a person of unsound mind, to appear and contest the application should they so desire. The record does not reflect any contest or any exceptions having been filed which complained of the allegations in the application for the guardianship. Subsequently, Mrs. Iliff qualified as the guardian and made application to sell the properties of Richard Murray Harris to the Whaleys. The necessary procedural steps were taken and the property was sold at private sale to the Whaleys; the County Court confirmed the sale and the guardian executed a guardian’s deed to the Whaleys on April 5, 1974.

On March 8, 1976, Marvin Thomas instituted the present proceeding, alleging himself to be the administrator of the Estate of Richard M. Harris, Deceased. While there is no proof in the record that Richard Murray Harris is deceased and that Marvin Thomas has been appointed the administrator of his estate, no complaint regarding these matters has been made by appellees.

In the District Court it was stipulated that James S. Harris was the common source of title. Appellant proceeded to introduce the records of the County Court of Harrison County relating to the guardianship of Richard Murray Harris and sought to show that the County Court did not have jurisdiction to appoint Mrs. Iliff as guardian of the person and estate of her son because the application for guardianship did not allege that her son was mentally incompetent. The application stated that: “The said Richard Murray Harris has been seriously ill and is incapable of managing his property and his financial affairs.” Section 4 of the Texas Probate Code gives county courts jurisdiction to appoint guardians of minors and incompetents. Section 3 of the Texas Probate Code defines incompetents and persons of unsound mind as follows:

“(p) ‘Incompetents’ or ‘Incompetent persons’ are person non compos mentis, idiots, lunatics, insane persons, common or habitual drunkards, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs.”

Section 3(y) of the Texas Probate Code provides:

“Persons of unsound mind” are persons non compos mentis, idiots, lunatics, insane persons, and other persons who are mentally incompetent to care for themselves or to manage their property and financial affairs.”

In Thomas v. Iliff, 524 S.W.2d 568 (Tex.Civ.App.Texarkana 1975, no writ), Appellant Thomas and Penelope Harris Jones tried unsuccessfully to overturn and set aside, by direct attack through writ of error, the sale of the realty from the guardian to the Whaleys. This Court refused to exercise its jurisdiction because the petition for writ of error failed to name Patricia Pope Whaley and the surety on the guardian’s bond as adverse parties. Appellant’s petition for writ of error was dismissed.

In the present case, appellant seeks to collaterally attack the judgment of the county court appointing a guardian for Richard Murray Harris by questioning the validity of such appointment in appellant’s trespass to try title action.

The issue is narrowed to the question of whether or not it was mandatory that the application for guardianship state the magic words that Richard Murray Harris was “mentally incompetent” or “a person of unsound mind.” Allegations in a petition made in good faith are ordinarily determinative of whether the claim is justi-ciable by the court whose jurisdiction is sought to be invoked. 45 Tex.Jur.2d, Pleading, Sec. 38, p. 435; Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949). Jurisdiction, as the duty and power of the court to act, however, does not depend on the petition that states the cause of action. The duty and power to act is that conferred upon the court by the Texas Constitution and the statutory enactments thereunder. The gravamen of jurisdiction lies not in the pleading but in the existence of the facts necessary for the court to exercise its jurisdiction. Jurisdiction of the proceedings to appoint guardians is conferred upon county and probate courts by the Texas Probate Code, and in particular, Sec. 4 and Sec. 184, et seq.

Citation was issued and served as to all persons interested in the welfare of the person and estate of Richard Murray Harris, a person of unsound mind, and Richard Murray Harris was served with personal citation. The proceedings were not contested and no exceptions were taken to the pleadings, though Richard Murray Harris and any other person interested in the proceedings could have appeared and filed an exception. The petition might have been subject to an exception for lack of specificity, but in the absence of such an exception, it was sufficient for the county court to exercise its jurisdiction. Tex.R.Civ.P. 45 and 90; Northrup v. O’Brien, 474 S.W.2d 614, 617 (Tex.Civ.App.Dallas 1971, no writ); 22 Texas L.Rev. 504 (1944); 2 McDonald’s, Texas Civil Practice, Sec. 5.18, pp. 48, 54.

The record reflects that Louise A. Iliff filed an application for appointment as guardian of the person and estate of Richard Murray Harris alleging that a necessity existed for such appointment and that Richard had been seriously ill and was incapable of managing his property and financial affairs. The County Court of Harrison County is a court of record of general jurisdiction over matters relating to the appointment of guardians. Section 114 of the Texas Probate Code sets out the facts to be proved before appointing a guardian and states what the court must find. The County Court of Harrison County having jurisdiction over the subject matter of guardianship, and having entered its order appointing Louise A. Iliff as guardian, the County Court is presumed to have determined that all proof necessary for the appointment of the guardian had been made as a prerequisite to the Court’s assuming the authority to make the order. In a collateral attack, where the record is silent as to facts concerning jurisdiction, it is conclusively presumed that all the facts not appearing of record were found by the court in favor cf its jurisdiction. Hannon v. Henson, 15 S.W.2d 579, 585 (Tex.Com.App.1929, judgmt. adopted); Bearden v. Texas Company, 41 S.W.2d 447, 458 (Tex.Civ.App.1931), aff’d, 60 S.W.2d 1031 (Tex.Com.App.1933, opinion adopted); Podgoursky v. Frost, 394 S.W.2d 185, 190 (Tex.Civ.App.San Antonio 1965, writ ref’d n. r. e.); G. Hodges, Collateral Attacks on Judgments, 41 Texas L.Rev. 163 (1962).

The public policy of this state requires, where possible, that a judgment of a state court be upheld against a collateral attack in order that property rights can be protected when property is acquired upon faith in the validity of such judgment. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 328 (1895).

Appellant’s point of error is overruled. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Tom MATHIS, III, et al., Appellants, v. C. Harper BLACK et al., Appellees.
    No. 1081.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 15, 1977.
    Rehearing Denied Feb. 16, 1978.
    Michael R. Ezell, Stiernberg, Skaggs & Koppel, Harlingen, for appellants.
    F. Wilbert Lasater, Tyler, for appellees.
   McKAY, Justice.

This is a plea of privilege case. Appellees brought suit in Smith County against appellants on a promissory note in the amount of $264,540.00, plus interest and attorney’s fees, and seeking foreclosure of a lien on certain land located in Cameron County, Texas. Appellants filed pleas of privilege to be sued in the counties of their residence — Cameron County and Hidalgo County. Appellees’ controverting plea alleges that the appellants contracted in writing to pay the note in Tyler, Smith County, Texas, and Subdivision 5 of Article 1995, V.A.T.S., controls the venue. After a hearing the trial court overruled appellants’ pleas of privilege — hence, this appeal.

Both the note and the deed of trust were offered in evidence without objection.

The real estate lien note reads in part as follows:

“For value received, I, We, or either of us, as principals, promise to pay to the order of C. HARPER BLACK, E. DAVIS WILCOX and JEFF M. BRACKEN in the City of . . . Tyler.County, Texas, the sum of TWO HUNDRED SIXTY-FOUR THOUSAND FIVE HUNDRED FORTY AND NO/100 Dollars . . . .''

By appellants’ point one they contend that the trial court erred in overruling their pleas of privilege because there was no evidence that the promissory note in question amounted to a contract to perform any obligation in “a particular county, expressly naming such county, or a definite place therein.” In their second point appellants claim that the trial court’s ruling rested on an implied finding that the promissory note in question was expressly made payable in Tyler, Smith County, Texas, and such finding was so against the overwhelming weight and preponderance of the evidence adduced at the hearing as to be clearly wrong.

Subdivision 5, of Article 1995, provides:

“. . . If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

In Burtis v. Butler Brothers, 148 Tex. 543, 226 S.W.2d 825, 829 (1950), the court held that a financial statement which stated: “all bills payable in Dallas” was a contract in writing to perform an obligation in Dallas County, Texas, because a trial court will take judicial notice of the counties of the state and also of the location of the county seats of these counties, and “the courts of Texas judicially know that Dallas is a county in Texas, and also that it is a city which is the county seat of Dallas County, Texas. This is naming a particular county, or a definite place therein by a written instrument as is required by Subdivision 5, Article 1995. . . . ”

It was held in Thompson v. Republic Acceptance Corporation, 388 S.W.2d 404 (Tex.1965): “That a promissory note payable ‘in Austin’ is a contract in writing that is performable in Travis County, Texas”; and in Cranbrook Corp. v. Wright, 469 S.W.2d 324, 325 (Tex.Civ.App. — Houston [14th Dist.] 1971, no writ), that: “a promissory note payable ‘in Houston’ is a contract in writing that is performable in Harris County, Texas, as required by Section 5, Article 1995”; and in Ellis v. Trad, 499 S.W.2d 666 (Tex.Civ.App. — Eastland 1973, no writ), that a contract which obligated Ellis to pay a commission in Dallas, Texas, was an obligation payable in Dallas County, and that courts may take judicial knowledge that Dallas is the county seat of Dallas County; and in McCoy v. First State Bank, Morton, 424 S.W.2d 451, 452 (Tex.Civ.App. —Amarillo 1968, no writ), that a note payable in “Morton, Texas” fixed venue in Cochran County because the court would take judicial knowledge of the fact that Morton is the county seat of Cochran County.

Appellee Black testified without objection that the City of Tyler was the county seat of Smith County, Texas, and that no part of the city was in any other county. We hold that we may take judicial knowledge of the fact that Tyler is the county seat of Smith County, Texas. Gulf Coast Aluminum Supply, Inc. v. Duke, 389 S.W.2d 480, 482 (Tex.Civ.App. — Tyler 1965, no writ).

While the State Bar form for real estate notes should have some division on the blank line between “in the City of” and “County, Texas,” we are of the opinion, and so hold, that the note in question here complies with the language of Subdivision 5, Article 1995, in that the makers of the note contracted in writing to perform an obligation in a definite place, which place is in the City of Tyler, which city is wholly located within Smith County, Texas.

Appellants’ points are overruled.

Appellees’ brief contains a motion that if the case should be affirmed damages should be assessed by the Court under Rule 438 because the appeal was taken by appellants for delay and that there was no sufficient cause for taking such appeal. Such motion is overruled.

Judgment of the trial court is affirmed.


author: KEITH, Justice.

text:
    Glenn B. MATTHEWS, Appellant, v. Eloise MATTHEWS, Appellee.
    No. 8047.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 22, 1977.

      Peter D. Williamson, Houston, for appellant.
    John L. Mericle, Houston, for appellee.
   KEITH, Justice.

This appeal involves a claim by our appellant that his discharge in bankruptcy has relieved him of his obligations to pay a community debt which he assumed in a property settlement agreement incident to a divorce. We will speak of the parties as the husband (appellant) and his wife (appel-lee).

During the course of their marriage, the parties accumulated certain items of community property, including some thirty-eight thousand dollars worth of furniture purchased from Suniland Furniture Company on the credit of the community. The husband sued for divorce, but the parties entered into an settlement agreement which was approved by the trial court. Among other conditions, the wife received the home, the household furniture and certain other items of property. She was appointed managing conservator of the child born of the marriage, and the husband/father agreed (and was ordered in the judgment) to pay $750 per month for the support of the child.

The husband specifically assumed the payment of the indebtedness upon the furniture and agreed to indemnify the wife from any liability therefor. But, shortly after the entry of the decree of divorce, he filed his petition in voluntary bankruptcy listing the furniture indebtedness but not listing the wife as a creditor. In due time, he was discharged. In the meanwhile, Su-niland sued both husband and wife on the debt. Husband interposed the discharge in bankruptcy as a defense, and Suniland recovered judgment against wife for its debt, interest, attorney’s fees, and costs of suit. That judgment amounting to more than $42,000 is now final.

The wife sought indemnity against husband for any sums she might be called upon to pay on the Suniland debt, and the husband again interposed the discharge in bankruptcy. The cause was tried upon an agreed statement of facts and stipulations of the parties. Judgment for the wife was entered in a bench trial, and the appeal is by the husband upon two points of error. We affirm for the reasons now to be stated.

In his first point, the husband contends that the wife failed to carry her burden of proving nondischarge of the debt. This was not an adversary trial wherein the facts were disputed; instead, the parties stipulated to the operative facts which we are required to accept. See Bowman v. Simpson, 546 S.W.2d 99, 100 (Tex.Civ.App. —Beaumont 1977, writ ref’d). These agreed facts presented only a question of law which was met and answered by the trial court and which we are now called upon to review. Point one is overruled.

Judge Gee in In re Nunnally, 506 F.2d 1024, 1026-1027 (5th Cir. 1975), disposed of a similar contention by holding that a discharge in bankruptcy did not wipe out the wife’s interest in a navy pension awarded to her in the divorce decree. The leading cases on the subject [including Francis v. Francis, 412 S.W.2d 29, 32-33 (Tex.1967)] were harmonized with the provisions of the Bankruptcy Code, 11 U.S.C.A. § 35(a)(7) (Supp.1977). We accept and adopt the holding of Nunnally as applicable to the case at bar.

In a case bearing remarkable similarity to that we have under review, the Court commented upon the fact that the husband was required to provide household furniture in the living quarters of the wife and child; that when he assumed and agreed to pay all indebtedness of the parties and to indemnify the wife, his discharge in bankruptcy did not insulate him against the wife’s third-party action for indemnity in a suit by the furniture seller to recover on its debt. See In re Waller, 494 F.2d 447, 449-450 (6th Cir. 1974). Similar holdings have been made by other courts in dealing with the claimed defense of discharge in bankruptcy. See, e. g., Poolman v. Poolman, 289 F.2d 332 (8th Cir. 1961); In re Baldwin, 250 F.Supp. 533 (D.Neb.1966).

We have given careful consideration to the many out-of-state cases cited by the husband in support of his contention but remain unconvinced that his discharge in bankruptcy ended his obligation to provide furniture for his child to use in the mortgaged home provided by the child’s mother. Finding no error in the judgment, it is affirmed.

AFFIRMED.

      . See also United States v. Stelter, 553 S.W.2d 227, 229 (Tex.Civ.App. — El Paso 1977, writ granted), wherein that court adopted the reasoning of Williams v. Williams, 338 So.2d 869 (Fla.App.1976), applying Texas law to a property settlement agreement in the context of a discharge in bankruptcy.


author: NYE, Chief Justice.

text:
    G. Phillip ALBRIGHT, Appellant, v. TEXCELLERE CORPORATION, Appellee.
    No. 1089.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 29, 1977.
    Rehearing Denied Jan. 31, 1978.

      Richard B. Stone, Stone, Berryman & Giles, Corpus Christi, for appellant.
    Howard F. Sudduth, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

Appellant G. Phillip Albright, a real estate broker, appealed from a judgment non obstante veredicto rendered against him on September 8, 1975, in his suit to recover real estate commissions from appellee, Tex-cellere Corporation. A detailed explanation of the posture of this ease is necessary to clarify the setting in which the merits are here considered.

The case was submitted to the jury on only one special issue, which was answered favorably to Albright. In his motion for judgment, Albright asserted his right to recover his brokerage commissions based on this favorable jury finding. Texcellere argued in its motion for judgment non ob-stante veredicto that the special issue was not a controlling issue, and that Texcellere should prevail as a matter of law, setting forth several grounds therefor.

Albright perfected his appeal to this Court. The transcript was filed November 5, 1975, along with appellant’s first motion to extend time to file the statement of facts. Between the date judgment was rendered and the expiration of 60 days, the court reporter, Mrs. Florene Smith, became ill. Her recovery was gradual, and additional extensions of time were requested and granted. On three different occasions the case was set for submission and oral argument, but postponed because the statement of facts was not completed.

Through extended delays, the attorneys, as well as the court reporter, were confident that the statement of facts could be completed. Mrs. Smith recovered sufficiently to be able to transcribe her notes on a limited, but regular schedule. A conference was held by this Court and the attorneys on September 3,1976, to discuss appellant’s sixth motion to extend time. The appellants reported periodically on the progress of Mrs. Smith, and reassured this Court that the statement of facts would be completed by November 30, 1976. The Court granted the motion with the stipulation that the statement of facts must be filed on or before November 30,1976, or the Court would entertain a motion to reverse the judgment and remand the cause for a new trial so that the appellant might obtain a statement of facts.

The seventh and last motion to extend time was filed November 30, 1976. This motion reported that significant progress was being made on the statement of facts, that Mrs. Smith believed she could complete her work by January 31, 1977, and that both parties desired to exhaust all means available to have the statement of facts prepared and filed rather than have the case reversed. To avoid a possible unnecessary retrial, this Court granted the seventh motion to extend the time.

In late January of 1977, Mrs. Smith suffered a severe relapse and subsequently died. Although efforts were made, it was determined that it was impossible for another court reporter to complete the statement of facts because Mrs. Smith used a unique individualized style of shorthand. No tape recording had been made during the course of the trial, and therefore there was no back-up source from which the record could be transcribed by another person.

Appellant Albright then filed a motion to reverse and remand the entire case for a retrial. On March 3, 1977, a hearing was held on this motion by this Court. The attorneys were asked to discuss their respective positions as to the actual need for a statement of facts now that it was certain that the partially completed statement of facts could never be finished. After the hearing, the Court asked the attorneys to determine whether they could prepare an agreed statement of facts (See Rule 378) or whether they could agree that the case could be submitted on law questions only, in which event the Court could then take the case under submission without the original completed statement of facts. At such hearing it was agreed by the parties and the Court that if it developed that eviden-tiary issues were involved so that a statement of facts would be necessary, the case would be remanded for new trial.

It was determined however, that appellant did not file a motion for new trial, thereby limiting the need for a statement of facts. Appellee agreed that there was ample evidence to support the only jury issue submitted. (For the results of such a situation, see: Saldana v. Garcia, 275 S.W.2d 563 (Tex.Civ.App. — San Antonio 1955, aff’d 155 Tex. 242, 285 S.W.2d 197 (1956); Jamison v. City of Pearland, 489 S.W.2d 636 (Tex.Civ.App. — Houston [1st Dist.] 1972, writ ref’d n. r. e.); Gulf Collateral, Inc. v. Edwards, 467 S.W.2d 690 (Tex.Civ.App. — Houston [1st Dist.] 1971, no writ); Permian Corp. v. Trumbull Asphalt Co. of Del., 472 S.W.2d 555 (Tex.Civ.App.— Corpus Christi 1971, no writ); Abbott v. Earl Hayes Chevrolet Company, 384 S.W.2d 782 (Tex.Civ.App. — Tyler, 1964, no writ).

On March 18, 1977, another hearing was held. At this time this Court announced its proposal to the effect that: the partial statement of facts and the exhibits were to be filed; the appellant was to file his brief setting forth his points of error and all relevant facts that he believed were necessary for a proper consideration of the appeal; appellee could file any reply and cross-points in its brief which it chose to bring before the Court; and that statements in either brief regarding facts of the case would be accepted as true by the Court unless refuted by the opposing party or were fully developed by evidence. See Rule 419, T.R.C.P. The attorneys for both parties agreed to the Court’s proposed order, and subsequently filed their briefs and offered oral argument at the time the case was submitted on June 23, 1977.

At this point, appellant’s motion to reverse and remand this case was still pending. It was clear, however, that remanding the case in order to obtain a statement of facts was a remedy available to appellant only if he showed that a material fact issue was unresolved by stipulations, admissions, exhibits, or testimony in the partial statement of facts, and that he had preserved his right to have such fact issue reviewed on appeal. Remand to secure a statement of facts was a remedy available to appellee if the case was not affirmed and if appellee preserved cross-points in his brief which required a statement of facts for proper appellate review.

Appellant Albright prayed for reversal and rendition, or for remand in the alternative. Appellee Texcellere prayed for af-firmance, or if the judgment could not be affirmed, for remand. Appellee argues in its cross-points that, with an incomplete statement of facts, the case cannot be fully developed or reviewed, and therefore rendition against him would be improper without such a complete statement of facts.

The record available for review consists of the transcript, exhibits, partial statement of facts, and unchallenged facts set forth in the briefs. Our first question to decide is whether a complete statement of facts is needed for a proper determination of the validity of the judgment n. o. v. If the judgment n. o. v. can be reviewed without a complete statement of facts and if it was proper, we can affirm. If the judgment n. o. v. was improperly granted, it would then be necessary to determine the proper disposition of the appeal based on appellant’s point of error and on appellee’s cross-points.

Broker Albright sued purchaser Texcel-lere Corporation for two hundred and fifty thousand dollars ($250,000.00) real estate commission stipulated for in the real estate broker’s contract between Albright and Texcellere. In addition Albright sued for the sum of three hundred and sixty thousand dollars ($360,000.00) for the loss of Albright’s exclusive right of resale of the Petroleum Tower Building called for in the real estate broker’s contract. Texcellere answered alleging that the consummation of the purchase of the Petroleum Tower Building by Texcellere was a condition precedent to Texcellere’s brokerage obligations to Albright and that Texcellere was justified in refusing to purchase because, among other things, the building encroached onto property owned by the City of Corpus Christi. Albright replied that Texcellere entered into a supplemental agreement to accept title to the building if the Corpus Christi City Council issued a permit to use, (for the life of the building), that area of the City’s property upon which the building encroached. Texcellere replied that it did not agree to accept the building with its encroachment even though a permit was actually issued by the City Council subsequently.

Trial was to the jury which answered the following special issue:

“Do you find from a preponderance of the evidence that purchaser Texcellere Corporation agreed to accept title to the Petroleum Tower property based upon the permit passed by the City Council? To which the jury answered, ‘Yes’.”

Appellant Albright contends that this single issue submitted to the jury was the controlling issue for the disposition of the entire case.

Appellant Albright argues here on appeal that the trial court erred in failing to grant his motion for judgment on the verdict because Texcellere was obligated to pay him the $250,000 brokerage commission based on the jury’s answer to the special issue. Tex-cellere argues that the provision in a letter agreement between Texcellere and Al-bright with respect to payment is subject to an unfulfilled condition precedent to the effect that the sale must be consummated and only when Texcellere purchases the Petroleum Tower is the commission due. Therefore since Texcellere did not purchase the building, it argues that it is not liable for the commission. The relevant portion of the letter agreement provides as follows:

Texcellere Corporation is this date presenting to Petroleum Tower, Inc., a form of sales contract for the purchase by Texcellere of the above described property from Petroleum Tower, Inc. Should this sale be consummated and Texcellere purchases the above described property from Petroleum Tower, Inc., Texcellere will pay you [Albright] the sum of $250,-000.00 as a real estate commission. Said sum of $250,000.00 shall be evidenced by a note to you in that amount executed by Texcellere Corporation and dated at date of the closing of the proposed sale and shall bear interest at the rate of 9% per annum and interest shall be payable annually as it accrues. The principal of the note shall be payable on or before three years from its date, provided, however, that should Texcellere Corporation satisfy that certain note of even date herewith to Petroleum Tower, Inc., which is secured by a second lien evidenced by a deed of trust on the above described property, it will at that time pay you one-half of the principal then owing on said note, [emphasis added.]

Neither party contended that the above letter agreement was vague or ambiguous. Therefore the construction of the letter agreement is a question of law for the Court without the aid of parol evidence. Steeger v. Beard Drilling, Inc., 371 S.W.2d 684 (Tex.Sup.1963); Chaffe v. Murray, 492 S.W.2d 680 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n. r. e.); O’Boyle v. DuBose-Killeen Properties, Inc., 430 S.W.2d 273 (Tex.Civ.App. — -Dallas 1968, writ ref’d n. r. e.); Struller v. McGree, 374 S.W.2d 256 (Tex.Civ.App. — San Antonio 1964, writ ref’d n. r. e.).

We agree basically with Texcellere’s contention that the language of the letter agreement, particularly the word “should”, indicates that the parties agreed that a commission would be payable only in the event Texcellere consummated the sale and purchased the property. The provision for payment of a commission to Albright was subject to this condition precedent. Sale v. Contran Corporation, 486 S.W.2d 161 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.).

Generally, a condition precedent in a contract must be satisfied before a right can accrue to enforce the obligation made subject to the condition. Burns v. American National Insurance Co., 280 S.W. 762, 765 (Tex.Com.App.1926); Sale v. Contran Corporation, 486 S.W.2d 161, 164 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.); Toland v. Kaliff, 435 S.W.2d 260 (Tex.Civ.App. — San Antonio, no writ); Perry v. Little, 377 S.W.2d 765 (Tex.Civ.App. — Tyler 1964, writ ref’d n. r. e.); Cozby v. Edwards, 203 S.W.2d 569 (Tex.Civ.App. — Fort Worth 1947, writ ref’d n. r. e.). However, an unfulfilled condition precedent in a real estate brokerage contract will not defeat the broker’s right to claim his commission if the broker has fully complied with all of his obligations under the terms of the contract and if the condition is not fulfilled due to the default of the broker’s principal (in this case, Texcellere). The condition will then in law be excused and the broker can recover his commission. Sale v. Contran Corporation, 486 S.W.2d 161, 164 n. 7 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.); McPherson v. Osborn, 475 S.W.2d 804, 807 (Tex.Civ.App. — Amarillo 1971, no writ); Peters v. Coleman, 263 S.W.2d 639 (Tex.Civ.App. — Fort Worth 1953, writ ref’d n. r. e.); Heath v. Huffhines, 152 S.W. 176 (Tex.Civ.App. — Fort Worth 1912, no writ).

The supplemental agreement in which the jury found that Texcellere agreed to accept title to the Petroleum Tower property based upon the permit passed by the City of Corpus Christi, foreclosed the first argument advanced by Tex-cellere.

Next Texcellere argues that the contract of sale was subject to additional conditions precedent one of which is that its president McKellip failed to execute a personal guaranty agreement at closing. The contract referred to a letter of guaranty that had already been drawn and dated. The language of the agreement shows that the obligations of Petroleum Tower and Texcellere were not expressly conditioned upon McKellip agreeing to personally guarantee the obligation. The contract only purports to adopt by reference a prior written letter by McKellip to Petroleum Tower in which McKellip agreed to personally guarantee the obligations to be assumed by Texcellere.

We have carefully considered all of the other arguments advanced by Texcellere and conclude that the April 26 contract of sale, the June 5 supplemental letter and the jury’s answer to the special issue demonstrates that this particular excuse and others tendered by Texcellere did not justify its default. We do not agree with Texcel-lere’s argument that this case should be remanded because a statement of facts is necessary to pass on the issue of whether Texcellere’s default was justified or not. However, we do agree that Texcellere would be entitled to a statement of facts to pass upon the validity of some of Texcel-lere’s crosspoints if it ever became necessary to pass on the merits of such points.

In counterpoint 12 Texcellere argues that the trial court’s judgment should be affirmed as a matter of law because Albright failed to comply with the compulsory requirements of article 6573a § 28 Tex.Rev. Civ.Stat.Ann. (1969). We agree. Section 28 provides in part:

“At the time of the execution of any contract of sale of any real estate in this State, the Real Estate Salesman, Real Estate Broker, Real Estate Agent or Realtor shall advise the purchaser or purchasers, in writing, that such purchaser or purchasers should have the abstract covering the real estate which is the subject of the contract examined by an attorney of the purchaser’s own selection, or that such purchaser or purchasers should be furnished with or obtain a policy of title insurance; and provided further, that failure to so advise as herein-above set out shall preclude the payment of or recovery of any commission agreed to be paid on such sale.” [emphasis supplied]

Albright is not entitled to a commission unless his right to a commission is established in a writing that complies with Arti-ele 6573a § 28 Tex.Rev.Civ.Stat.Ann. (1969). The April 26 contract and all of the letters which Albright says are all of the relevant writings do not contain the written statutory requirements. The partial statement of facts shows that Albright admitted he did not provide a writing containing the section 28 statutory requirements. In addition, he has not suggested a valid excuse for failure to comply with the statute.

Texcellere contends that Section 28 of the above article covers the present transaction and as such entitles it to a judgment as a matter of law. The only bases which Al-bright suggests exempt him from the statutory requirements are as follows. Albright, relying specifically on article 6573a § 16(21) Tex.Rev.Civ.Stat.Ann. (1969) (instead of Section 28), argues that: 1) failure to so advise a purchaser might be grounds to have a real estate license suspended but does not affect his right to seek a commission; and 2) he has fully complied with the statutory requirements because the April 26 contract of sale expressly provides that Texcellere shall be furnished with a policy of title insurance.

Albright’s arguments lack merit. First Section 28 expressly precludes the payment of or the recovery of any real estate commission agreed to be paid if the broker fails to supply the required written information. Jones v. Del Andersen and Associates, 539 S.W.2d 348, 350 (Tex.Sup.1976). Section 16 gives the commission the power to suspend or revoke the broker’s license. Section 28 is therefore not limited by the additional sanctions imposed by Section 16(21) of Art. 6573a. In some circumstances both sections would be applicable. However, in this suit, only Albright’s right to recover a real estate commission under Section 28 is involved.

Albright’s second argument is controlled by Jones v. Del Andersen and Associates, supra. There the Supreme Court stated:

“We assume that Section 28 was enacted for the protection of real estate purchasers. By requiring the realtor to notify such persons of the advisability of investigating the seller’s title, the risk of purchasing a worthless or clouded title is reduced. . . . The Legislature could reasonably conclude that the most effective means of protecting prospective purchasers is to deny the realtor his commission any time he fails to supply the required information. Thus the statute uses the words ‘any commission.’
In order for Section 28 to serve its intended purpose, it must apply in all cases. To hold otherwise would render the statute ineffectual, by permitting realtors and sellers, in instances where title problems exist, to structure the transaction so as to avoid the requirements of the statute. We do not believe that the Legislature intended such a result. Only where the realtor is wrongfully deprived of the opportunity to comply may he still recover his commission. See Knight v. Hicks, 505 S.W.2d 638 (Tex.Civ.App.1974, writ ref’d n. r. e.).”

Albright concedes that his compliance, if any, with section 28 must be found in the April 26 contract of sale. The following is the only reference to title policies or abstracts in the April 26 contract:

“3. Seller agrees to furnish Purchaser a policy of title insurance in the face amount of Three Million Two Hundred Thousand Dollars ($3,200,000.00) issued by U.S. Life Title Company or other reputable title company, in the customary form and containing only (1) the usual exceptions to title, such as rights of parties in possession, survey, taxes, tenants leases, restrictive covenants and apparent easements, etc., and (2) the lien and encumbrances to be assumed by Purchaser and reserved by Seller pursuant to Paragraphs 2(b) and 2(c) above, which policy shall be issued immediately upon closing of this transaction and the filing of Purchaser’s deed for record.”

The contract does not advise the purchaser Texcellere in writing that it has certain statutory rights. The statute as it is written requires that this information must be furnished to the purchaser at the time of the execution of the contract; Our Supreme Court said:

“We recognize that such a statute, construed as it is intended, can lead to harsh results in individual cases. For example, it appears that in the present case the purchasers did in fact seek legal advice concerning the seller’s title, even though Andersen had failed to so advise them. However, when we have determined the legislative intent expressed in unambiguous language, our function is not to question the wisdom of the statute. In the absence of constitutional infirmities, we must apply it as written.” (emphasis added) Jones v. Del Andersen and Associates, supra.

At the hearing on Motion to Reverse and Remand it was agreed that if either party raised a material disputed fact issue in its brief contending that certain evidence was received during the course of the trial, we would by necessity, consider such disputed statements as requiring reversal and remand. Albright does not refute the statement contained in Texcellere’s brief regarding his testimony contained in the partial statement of facts that Albright admitted he did not give the statutory requirements in writing to Texcellere. None of the writings introduced into evidence contain the statutory requirements and Albright does not suggest such a writing exists. Texcel-lere’s brief states that Albright was present at the signing of the April 26 contract of sale between Texcellere and Petroleum Tower. Albright does not refute this statement. In addition Albright does not suggest or imply that he was wrongfully deprived of the opportunity to comply with the requirements contained in Section 28 of Art. 6573a.

We therefore conclude from the record and the statements contained in the briefs that the evidence is conclusive that Al-bright did not inform the purchaser of the statutory requirements contained in Section 28. There is no evidence in all the writings pertaining to the contract of sale that Al-bright informed Texcellere in accordance with Section 28. We hold that Albright’s suit for his commission is barred by Section 28, Art. 6573a. Jones v. Del Andersen & Associates, supra.

Albright also contends he was entitled to judgment on the jury’s verdict for damages for loss of the exclusive right to resell the Petroleum Tower. The relevant portion of this part of the April 5 brokerage contract states:

“As further consideration for your negotiations of said sale and upon closing of said sale Texcellere . . . hereby gives you the exclusive right to sell the above described property when Texcellere desires to sell the same and Texcellere agrees to pay you six percent (6%) real estate commission for your services as realtor in any such sale by Texcellere. Should such property be sold by someone other than yourself you agree to split your commission with such party.” [emphasis supplied]

Pursuant to this provision, Albright claims he is entitled to damages in the amount of 6%, or in the alternative 3%, of the estimated resale value of the Petroleum Tower and suggests that we can determine the amount to which he is entitled.

Generally when a broker has contracted for the exclusive right to sell property and is ready, willing, and has performed his part of the contract, and his principal wrongfully breaches the contract thus denying the broker the opportunity to perform, the broker is entitled to recover as damages the amount which under the contract he, presumably, would have earned had his right been respected. Park v. Swartz, 110 Tex. 564, 222 S.W. 156 (1920). In such instances the broker’s cause of action is not to recover the commission promised to him but to recover damages for the principal’s breach of the contract. This exclusive contractual right to resell the building had some value to Albright. The broker is ordinarily entitled to recover the reasonable prospective profits he would have earned but for the breach. Sunshine v. Manos, 496 S.W.2d 195, 200 (Tex.Civ.App.— Tyler 1973, writ ref’d n. r. e.); Dowd More Co. Realtors v. McDonald, 494 S.W.2d 282 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ); McDonald v. Davis, 389 S.W.2d 494 (Tex.Civ.App. — Houston [1st Dist.] 1965, no writ). Prima facie, that profit could be represented by the stipulated commission in the brokerage contract. (See authorities above cited). Where the brokerage contract specifies a percent commission payable to the broker but does not otherwise specify upon what sum the commission is to be computed, the commission is to be computed upon the gross sales price of the property. Peters v. Coleman, 263 S.W.2d 639, 642 (Tex.Civ.App. — Fort Worth 1953, writ ref’d n. r. e.) See authorities cited therein.

Although Albright requested a special issue asking the jury to find the estimated sales price of the Petroleum Tower, the trial court refused the special issue and no other special issues were submitted to the jury relating to Albright’s measure of damages. Albright did not file a motion for a new trial complaining of the trial court’s failure to submit this special issue nor does he mention the lack of this special issue in his motion for judgment. Albright has not perfected any complaint to this Court regarding the trial court’s failure to submit special issues on the lost profits. He has therefore waived his right to appellate review of this point. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).

Albright would ordinarily be entitled to a judgment if the material allegations of his cause of action were proved either by a jury verdict or by undisputed evidence. American Trading & Production Corp. v. Phillips Petroleum Co., 449 S.W.2d 794, 798 (Tex.Civ.App — El Paso 1969, writ ref’d n. r. e.). Although there is no jury issue to support his claim for damages, Al-bright contends that the estimated resale value of the Petroleum Tower was conclusively established to be six million dollars ($6,000,000). To support this contention, Albright’s brief states that he testified without objection to this value and that Texcellere in its pleadings admitted that the building had a resale value of $6,000,000 because Texcellere in a cross action sought damages for alleged lost profits based on that value. Texcellere’s brief does not directly refute that the resale value of the building was $6,000,000, but Texcellere does contend that the price is purely speculative and that the contract is of indefinite duration and is therefore unenforceable. Be that as it may, prima facie, the profit in this case could be 6% of the gross sales price of Petroleum Tower. Although there was evidence that the Petroleum Tower had a resale value of $6,000,000, which was some evidence of Albright’s prospective profits, this testimony alone does not conclusively establish the resale value of Petroleum Tower or the profit Albright would have earned or the actual damage he suffered. For instance, the record contains a stipulation made by Albright’s attorney to the effect that on December 26, 1974, (a subsequent date) Albright sold the Petroleum Tower to another purchaser for the sales price of $4,100,000 and that Albright received a $130,000 commission on that sale. This would be some evidence that the resale value of the Petroleum Tower was less than $6,000,000 as contended. There is no question but that there is a fact issue on the amount of damages caused by Texcellere’s breach of the contract.

Albright is not entitled to a judgment on the verdict for the damages he sustained by the loss of the exclusive right to resell the building because the damages have not been established as a matter of law so as to permit a reversal and rendition. Since appellant did not preserve error for a reversal and remand, we are also required to affirm this portion of the trial court’s judgment.

The Rules of Civil Procedure clearly evidence a policy of economy and efficiency in presenting a proper record to the appellate court for review. Rule 370, T.R. C.P., specifically calls for limiting records to the questions relied on for reversal; Rule 377(b) directs the omission of matters from the statement of facts which are not essential to the decision of the questions presented; Rule 377a permits a party to induce the opposing party to accept an abbreviated transcript or statement of facts by filing a statement of the points on which he intends to rely; and Rule 378 permits the parties to file an agreed statement of facts as a part of the transcript. A record made unnecessarily lengthy by the inclusion of irrelevant material is specifically disapproved by the Rules of Civil Procedure. (See also Rules 372(7), 377(e), and 382.)

The appellant’s right to a statement of facts is not absolute. If a statement of facts is not needed, as in this case, a retrial for the sole purpose of obtaining a statement of facts violates the intent and the literal wording of the Rules.

Appellant’s motion to reverse and remand is denied. The judgment of the trial court is affirmed.

      . “It is a well established rule of law in our State that an appealing party is entitled to a statement of facts, and if through no fault of his own after the exercise of due diligence he is unable to procure such a statement of facts his right to have the cause reviewed on appeal can be preserved to him in no other way than by retrial of the cause.” State v. Ripke, 426 S.W.2d 599, 603 (Tex.Civ.App. — Corpus Christi, 1968 writ ref d n. r. e.). See authorities cited therein.

      . Article 6573a has been amended since this case arose. Acts 1975, 64th Leg., p. 533, ch. 216. The same substance of Section 28 is now contained in Section 20.

      . The substance of Section 16(21) is now contained in Section 15(4)(u).


text:
    John David EOFF, Appellant, v. D. V. MUSKIET et al., Appellees.
    No. 8024.
    Court of Civil Appeals of Texas.
    Dec. 29, 1977.
    Rehearing Denied Jan. 26, 1978.

      Paul R. Lawrence, Houston, for appellant.
    David J. Beck, Houston, for appellees.
   KEITH, Justice.

Plaintiff appeals from an adverse judgment based upon a jury verdict in a suit involving an assault and battery. Plaintiff and several friends went to a restaurant in Houston late in the evening and stayed for the entertainment. During their visit they admittedly consumed a considerable amount of beer and the testimony is disputed only as to whether the plaintiff and his friends were actually in a state of intoxication or simply under the influence of intoxicating liquor.

As plaintiff was leaving the restaurant after closing time, an altercation broke out between plaintiff’s group and two off-duty uniformed city policemen, Frank and Musk-iet, in charge of the restaurant parking lot. In the ensuing fracas, plaintiff sustained injuries which necessitated treatment in the Veterans Hospital in Houston. A lengthy statement of the facts is not necessary to our disposition of the case, it being sufficient to state that while many of the details of the events were disputed, the major dispute centered around the precise manner in which plaintiff sustained his injuries.

Plaintiff contended that he was the victim of a vicious and unprovoked assault and beating by Muskiet; whereas defendants contended, inter alia, that while Muskiet was defending himself from an attack by plaintiff, Muskiet fell on top of plaintiff to the hard asphalt surface of the parking lot and that this caused plaintiff’s injuries.

The jury found that Muskiet “unjustifiably assaulted” plaintiff with this definition accompanying the issue:

“You are hereby instructed that the term ‘assault’ as used in this issue means the use of any unlawful violence upon the person of another with intent to injure him.”

The charge comes to us without objection and there was no definition of the word “unjustified” as used in the issue nor was a requested definition tendered.

All other issues in the charge were answered unfavorably to the plaintiff and the jury inserted the word “zero” in answer to the damage issues. A take nothing judgment was entered by the trial court and the appeal is perfected upon a single point of error reading:

“There is no evidence to sustain the jury’s findings of no damages, or, alternatively, there is insufficient evidence.”

It is obvious that the point of error is multifarious and requires us to review the evidence under different standards. Justice Bissett in Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254, 257-258 (Tex.Civ.App.—Corpus Christi 1974, no writ), collected many of the eases on the subject and we adopt the rationale and the holding of the Barber Case. See also Inman v. Padrezas, 540 S.W.2d 789, 796 (Tex.Civ.App.—Corpus Christi 1976, no writ); Ives v. Watson, 521 S.W.2d 930, 933 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.); International Security Life Ins. Co. v. Robichau, 510 S.W.2d 132, 135 (Tex.Civ.App.— Beaumont 1974, no writ); Jack Criswell Lincoln Mercury, Inc. v. Tsichlis, 549 S.W.2d 255, 258 (Tex.Civ.App.—Beaumont 1977, no writ).

Although we do not approve of the manner of presenting the complaint, our Supreme Court has spoken very firmly on the subject. See O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976), reaffirming the rule laid down in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943). Thus, we are required to “look to the ‘point’ and the statement and argument thereunder to determine the question of reversible error.”

We do so following the rules laid down in the authorities, e. g., In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952), and R. Calvert, “ ‘No evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.L.Rev. 361 (1960). We find no merit to the spurious or hybrid “no evidence” point and it is overruled. See M. Hatchell and R. Calvert, “Some Problems of Supreme Court Review”, 6 St. Mary’s L.J. 303, 323 (1974). See also, Ross v. Sher, 483 S.W.2d 297, 299 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.).

In considering a factual insufficiency point challenged by a party upon whom the burden of proof rested, we will apply the usual rule to our consideration of the evidence. Thus, we will examine the entire record to see if there is any evidence to support the jury’s negative answer. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and authorities therein cited.

Plaintiff argues that under this court’s decisions in Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App.—Beaumont 1972, writ ref’d n.r.e.), and Bazzano v. Ware, 530 S.W.2d 650 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.), he is entitled to a reversal simply because he was hurt in the scuffle or fight and the jury did not assess any monetary damages against the defendants. We disagree with this contention under the peculiar facts of the case at bar.

The two special issues on damages, which the jury answered “zero,” did not inquire of the amount of damages sustained by plaintiff because of the unjustified assault; instead, each was confined to the damages which plaintiff sustained “from the occurrence in question.”

Under the record which we review, plaintiff’s injuries may well have been received while Muskiet was defending against an attack by plaintiff; or, such injuries may have been received accidentally when Muskiet fell upon plaintiff. Certainly, the jury was not required to find, under the conflicting testimony in this record, that the physical injuries plaintiff received on the parking lot that night occurred in connection with an unjustified assault.

Plaintiff was entitled to be compensated only for injuries sustained by reason of the unjustified assault by Muskiet; he was not entitled to damages for injuries which he may have received accidentally or incident to Muskiet’s self-defense. In Dupree v. Blackmon, supra, relied upon by plaintiff, there was no suggestion that plaintiff’s injury did not result from the collision of the motorbike and the pickup truck. The objective symptoms of injury could readily have been disproved by the defendant if they did not exist. No such similarity of conditions exist in this cause.

If plaintiff wanted the jury to assess damages resulting from the unjustified assault, he had but to frame an issue making such inquiry of the jury. He did not so frame the issue nor did he object to an issue which did not limit the inquiry to damages properly recoverable.

We are unwilling to extend Dupree to a case which has no factual similarity. It was for the jury to assess the damages; and, as stated in C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966):

“Properly interpreted, the answer is nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that [plaintiff sustained damages because of the unjustified assault], and means, in law, that the [plaintiff] failed to carry [his] burden of proving the fact.”

There is an additional reason for affirmation of the judgment as to the defendant Phil Frank. Upon the appeal, as noted earlier, plaintiff complains only of the failure of the jury to assess damages against the defendant Muskiet. In Special Issue No. 3, the jury found that plaintiff had not carried his burden of showing an actionable wrong against Frank and no challenge is made to that finding. The failure of the jury to find damages is, as to Frank, immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939).

Similarly, as to the defendant Richard Tannenbaum, there is an additional reason for the affirmation. Such defendant raised a fact issue under Tex.R.Civ.P. 93 as to his ownership of the restaurant. Plaintiff did not introduce any evidence on this question nor did he request any jury issue on the question of ownership. Since the judgment entered was adverse to plaintiff, there is a presumed finding in Tannen-baum’s favor that he did not do business under such assumed name and such finding has not been challenged by plaintiff. See generally Tex.R.Civ.P. 279; Strauss v. LaMark, 366 S.W.2d 555, 557 (Tex.1963).

The judgment in its entirety is affirmed.

AFFIRMED.

       Special Issue No. 7 read: “What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate John David Eoff for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?' (emphasis supplied) The next issue, inquiring of medical and hospital expenses, also inquired of the cost of such treatment of injuries “from the occurrence in question.”


text:
    PORT CITY STATE BANK, Appellant, v. LEYCO CONSTRUCTION COMPANY, INC., Appellee.
    No. 8067.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 29, 1977.
    Rehearing Denied Jan. 26, 1978.
    David S. Elder, Houston, for appellant.
    Charles L. Stidham, Austin, for appellee.
   KEITH, Justice.

Defendant below appeals from an order overruling its plea of privilege to be sued in Harris County. Plaintiff sought actual and exemplary damages for what the parties have called an “attempted wrongful foreclosure.” The events leading up to the filing of the suit are set out in the findings of fact filed by the trial court which we summarize without benefit of quotation marks: The parties have had a long standing debt- or-creditor relationship with plaintiff borrowing from the bank over a period of many years. The proceeds of the loans have been used by plaintiff in its business of buying, developing, selling and mortgaging real property.

Plaintiff mortgaged certain real property situated in Montgomery County to secure certain indebtedness due to the defendant bank. Portions of the indebtedness were paid off from time to time and partial releases covering the particular lot or lots were executed by defendant bank. Plaintiff defaulted on some of its indebtedness and the bank accelerated the maturity of the debt and posted notices of trustee’s sale of the property as described in the original deed of trust — including the property which had been included in the partial releases theretofore executed.

Plaintiff then sought and procured a temporary injunction restraining the trustee’s sale and no sale was conducted. Later, plaintiff brought this separate suit to recover actual and exemplary damages because of the alleged “attempted wrongful foreclosure.” Plaintiff sought to maintain venue under the provisions of subdivision 23 of the venue statute. We reverse and order the cause transferred for the reasons now to be stated.

Under this subdivision, the plaintiff was required to plead specifically and to prove facts showing that a cause of action arose in its favor against the defendant. Employers Casualty Company v. Clark, 491 S.W.2d 661, 662 (Tex.1973). Of the three venue facts set out in Admiral Motor Hotel of Texas, Inc. v. Community Inns, 389 S.W.2d 694, 698 (Tex.Civ.App.— Tyler 1965, no writ) [(1) defendant is a private corporation; (2) plaintiff has, in fact, a cause of action against the defendant; and (3) the cause of action or a part thereof arose in the county of suit], two are without dispute in our record. But, plaintiff has cited to us no authority supporting the existence of a cause of action for “attempted wrongful foreclosure” and our research has not developed authorities showing the existence of any such cause of action.

We agree with defendant’s assertion contained in its brief:

“The cause of action alleged by Leyco Construction is entirely novel . Certainly, a debtor could have a cause of action for wrongful foreclosure, where a creditor purports to foreclose a security interest on property in which he has no valid lien. However, there is no reported case where a debtor received damages where a creditor mistakenly attempted to foreclose a security interest, but did not actually foreclose when apprised of the true facts before foreclosure took place. Further, there is no evidence that Leyco Construction sustained any damages as a result of the attempted foreclosure . . . .''

Plaintiff was required to prove a cause of action against defendant, and this included proof of damage. Although it was not required to establish the amount of its damage, it was necessary to show that plaintiff did, in fact, sustain some damage by reason of defendant’s conduct. Chilton Corporation v. Moore, 508 S.W.2d 679, 682 (Tex.Civ.App. — Fort Worth 1974, no writ); 1 McDonald, Texas Civil Practice § 4.30.2, at 518-519 (Rev.1965).

Assuming, arguendo, that plaintiff could show damages to the corporation by.reason of payments made by an officer in his individual capacity (which we deny), attorney’s fees are not recoverable unless provided by statute or contract. Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964); Kleiman v. White, 476 S.W.2d 375, 378 (Tex.Civ.App. — Austin 1972, writ ref’d n.r.e.). Such fees are not legal damages in this case.

The judgment of the trial court is reversed and the cause is remanded with instructions to transfer the entire cause to one of the district courts of Harris County.

REVERSED and REMANDED with instructions.


author: AKIN, Justice.

text:
    STATE of Texas, Appellant, v. L_ J_ B_, Appellee.
    No. 19392.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 30, 1977.
    Rehearing Denied Jan. 26, 1978.

      Henry Wade, Dist. Atty., Maridell Tem-pleton and John Tatum, Asst. Dist. Attys., Dallas, for appellant.
    Maxine T. McConnell, John A. Dennis, Dallas, for appellee.
   AKIN, Justice.

The principal question on this appeal is whether the State can appeal from a summary judgment dismissing with prejudice the State’s petition in a juvenile delinquency proceeding. We hold that the State can appeal in this situation. We also hold that the summary judgment procedure is not permissible in a proceeding to ascertain whether a juvenile is in need of supervision, or whether the juvenile has engaged in delinquent conduct. Accordingly, we reverse and remand.

The State filed its petition alleging that the juvenile engaged in delinquent conduct by committing a theft in violation of § 31.03 of the Texas Penal Code (Vernon 1974) and, accordingly, was a juvenile in need of rehabilitation. The juvenile filed a motion for summary judgment supported by his affidavit that he had not passed the check-out counter in the retail store when he was apprehended, nor had he left the store before he was detained. The State failed to respond and the court granted summary judgment for the juvenile, dismissing the State’s petition with prejudice. The State appeals.

The Summary Judgment

The State argues that the summary judgment is erroneous because the juvenile was an interested witness, whose affidavit with respect to his intent raises no more than a fact issue and does not establish as a matter of law that he did not intend to deprive the owner of the property. We agree that the affidavit does not establish that the juvenile did not knowingly and intentionally appropriate the property to his own use. We conclude, therefore, that the affidavit raised no more than a fact issue and that the summary judgment was erroneously granted. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

We hold, moreover, that the summary judgment procedure under Tex.R. Civ.P. 166-A is inapplicable to a proceeding under Title 3 of the Texas Family Code pertaining to delinquent juveniles in need of supervision or rehabilitation. In our view, the legislative intent in enacting Title 3 of the Family Code was to protect juveniles from the taint of criminality and to treat and rehabilitate them. Section 51.01 states:

This title shall be construed to effectuate the following public purposes:
(1) to provide for the care, the protection, and the wholesome moral, mental and physical development of children coming within its provisions;
(3)consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation;
(5) to provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced. [Emphasis added]

Whether a juvenile has engaged in delinquent conduct and consequently is in need of supervision or rehabilitation cannot be adequately determined by affidavits. The hearings required by § 54.01 (detention hearing), § 54.03 (adjudication hearing), § 54.04 (disposition hearing) and, § 54.05 (hearing to modify disposition) all necessitate an evidentiary hearing with witnesses present so that all parties, including the court, can ascertain the best interest of the juvenile. To hold that the summary judgment procedure is appropriate under Title 3 would be to frustrate the very purpose of the act.

Our holding that Rule 166-A is inapplicable to juvenile delinquency proceedings is supported by the long-held principle that it is a court’s function to determine the intent of the legislature from the circumstances of the enactment of the statute and to give effect to that legislative intent. Tex.Rev.Civ.Stat.Ann. art. 10(6) (Vernon 1969). Calvert v. British-American Oil Producing Co., 397 S.W.2d 839, 842 (Tex.1965); Texas & N.O. R. Co. v. Railroad Commission, 145 Tex. 541, 200 S.W.2d 626, 629 (1947); State v. Dyer, 145 Tex. 586, 200 S.W.2d 813, 815 (1947); Houchins v. Plainos, 130 Tex. 413, 110 S.W.2d 549, 554 (1937).

Right to Appeal

Our question, then, is whether the State has a right to appeal the erroneous summary judgment. The juvenile asserts that this court has no jurisdiction to hear this appeal because the State has no right of appeal in a juvenile delinquency case. In support of this argument, he points to Article V, § 26 of the Texas Constitution (Vernon 1955) which denies the state a right of appeal in a criminal case. We cannot agree with this contention because both the supreme court and the court of criminal appeals have held that the proceedings in a juvenile case are not criminal in nature but rather a civil proceeding by the state of its power of parens patriae. Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 273 (1944); Ex parte Bartee, 76 Tex.Cr. 285, 174 S.W. 1051, 1053 (1915).

The right of appeal in civil cases generally is derived from Article V, § 6 of the Texas Constitution (Vernon 1955), Tex.Rev. Civ.Stat.Ann. art. 1819 (Vernon 1955), and Tex.Rev.Civ.Stat.Ann. art. 2249 (Vernon 1971). Article V, § 6 of the Texas Constitution provides that the court of civil appeals shall have appellate jurisdiction “to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” Acting upon this constitutional provision, the legislature enacted article 1819, which provides that the court of civil appeals shall have appellate jurisdiction of all civil cases where the amount in controversy or the judgment rendered shall exceed one hundred dollars. The legislature also promulgated article 2249, which provides that “an appeal or Writ of Error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases.” Included with the ambit of these statutes are cases appealed from the juvenile courts. Section 56.01(a) of the family code also specifically provides for an appeal to this court, as in other civil cases, and § 56.01(b) states that the rules governing an appeal are as in civil cases generally. Indeed, the court of criminal appeals has twice held that an appeal in juvenile cases lies with the court of civil appeals and not with the court of criminal appeals. Dillard v. State, 477 S.W.2d 547, 550 (Tex.Cr.App.-1971); Dillard v. State, 479 S.W.2d 304, 305 (Tex.Cr.App.-1972). These provisions for appeal to the court of civil appeals, which has civil jurisdiction only, rather than to the court of criminal appeals, is a clear indication of legislative intent that juvenile cases should be considered civil cases for the purpose of appeal.

We recognize that certain aspects of both federal and state constitutions pertaining to criminal cases also apply to juvenile proceedings. For example, the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), held that juvenile delinquency hearings must comply with due process and fair treatment under the 5th, 6th and 14th Amendments to the United States Constitution with respect to notice of proceedings and specificity of charges, the right to counsel, the privilege against self-incrimination, as well as the right of confrontation of witnesses against him and sworn testimony by witnesses available for cross-examination. All of the requirements of In re Gault are delineated in the Texas Family Code. On the other hand, it has been held that a juvenile is not deprived of due process and equal protection by virtue of the fact that the only evidence against him was the uncorroborated testimony of an accomplice, even though the testimony would not be sufficient under Texas law to convict an adult. In the Matter of S. J. C., 533 S.W.2d 746 (Tex.1976). Also, this court has held that where Section 51.04(b) of the Texas Family Code permits the juvenile board to designate either the county or district court as the juvenile court in certain counties, a six-man jury does not contravene the United States Constitution or the Texas Constitution. Matter of A_ N_ M_, 542 S.W.2d 916 (Tex.Civ.App.— Dallas 1976, no writ). Although the family code requires that trial shall be by jury, unless waived, Tex.Fam.Code § 54.03(c) (1976), the United States Supreme Court in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) held that trial by jury is not constitutionally required in a hearing to adjudicate a juvenile delinquent. After considering these authorities, we conclude that although juvenile delinquency cases have some of the aspects of criminal cases insofar as the proceeding threatens a deprivation of the juvenile’s liberty, they are, nevertheless, civil cases to which the constitutional prohibition of appeals by the state has no application.

Appellee argues that because § 56.01 gives the juvenile the right to appeal in specified situations and because the state is not specifically given the right to appeal by this section, the state has no right to appeal. We do not construe the lack of a specific provision for an appeal by the state in this section, to negate the general right of appeal from all final judgments provided by article 2249. An order dismissing the entire cause, as the present order does, is a final judgment for the purpose of appeal. First Nat’l Bank v. Fox, 121 Tex. 7, 39 S.W.2d 1085 (1931).

In support of this contention, he cites Collins v. State, 429 S.W.2d 650 (Tex.Civ.App. — Houston [14th Dist.] 1968, no writ) and State v. Marshall, 503 S.W.2d 875 (Tex.Civ.App. — Houston [1st Dist.] 1973, no writ). We do not regard these cases as controlling on this point because both decisions were grounded upon the principle of double jeopardy rather than on the constitutional prohibition against appeal by the state in criminal cases. In Collins, the court held that where an evidentiary hearing was commenced and the state non-suited and later refiled another petition, the juvenile was placed in double jeopardy for the same offense in contravention of the due process clause in the 5th Amendment to the United States Constitution, citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Collins court did not, however, hold that a juvenile proceeding was a criminal proceeding for all purposes under state law. Indeed, that court stated that such a proceeding is civil in nature and that the rules of civil procedure apply except insofar as special statutes are applicable.

State v. Marshall, supra, is similarly distinguishable. In that case, the trial court granted a directed verdict of dismissal, after an evidentiary hearing, on the ground that the state’s evidence was insufficient as a matter of law, and the state attempted an appeal. The Marshall court held that the state had no right of appeal in that case because the juvenile would be placed in double jeopardy in contravention of Article I, § 14 of the Texas Constitution as well as the 5th Amendment to the federal constitution. In so holding, the court noted that although a juvenile proceeding is civil in nature, the constitutional guarantee of due process is applicable to all proceedings, whether civil or criminal, if the outcome may result in deprivation of a person’s liberty. Id. 503 S.W.2d 876. Unlike Marshall, the appellee here has not been placed in jeopardy by the hearing of his motion for summary judgment, since, at the close of that hearing the court could not have granted judgment to the State. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527 (1967). Neither would he have been placed in jeopardy had the trial court denied the motion.

Reversed and remanded.


author: ROBERTSON, Justice.

text:
    A. J. BERGERON, Independent Executor of the Estate of Robert L. Roberts, Deceased, Appellant, v. W. R. SESSIONS, Receiver of the Robert L. Roberts Receivership, Appellee.
    No. 19358.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 30, 1977.
    Rehearing Denied Feb. 2, 1978.

      Paul J. Chitwood, John E. Gangstad, James J. Hartnett, Dallas, for appellant.
    W. R. Sessions, Dallas, for appellee.
   ROBERTSON, Justice.

A. J. Bergeron, independent executor of the estate of Robert L. Roberts, appeals from an award of $150,000 in fees to W. R. Sessions, receiver of the Robert L. Roberts receivership, and $75,000 in fees to his accountant. We previously held that the order was final for the purpose of this appeal, Tex.Civ.App., 554 S.W.2d 771, and we now hold that the trial court erred in making a' final award of these fees prior to the final accounting of the receivership. Accordingly, we reverse and remand for further proceedings.

Robert L. Roberts disappeared in the summer of 1970, and approximately one year later, W. R. Sessions was appointed receiver to marshall the assets of the Roberts estate. Subsequently, a Dallas county probate court declared Roberts legally dead, and Bergeron qualified as independent executor of the estate. Early in 1977, the receiver moved the district court to terminate the receivership, to set a final fee for himself and his accountant, and to transfer the estate to the executor’s control as independent executor. However, the court refused to terminate the receivership and, after a hearing, awarded final compensation to the receiver and his accountant for services rendered up to the hearing date, but left open the amount of compensation due after the hearing and at the final settlement of the receivership. The executor’s plea to abate the hearing until after the receiver had filed his final accounting was overruled.

The primary question on this appeal is whether the trial court erred in making a final award of fees to the receiver and his accountant prior to a final accounting of the receivership. If we decide that the award was erroneous, we must then, for the benefit of the trial court upon remand, decide whether the court erred in denying Bergeron’s request for a jury trial on the fee question.

The Final Award of Partial Fees

The executor first argues that the trial court erred in allowing any full award of fees to the receiver and his accountant prior to a final accounting and discharge of the receiver. We agree. Prior to a final accounting and discharge of the receiver, only a partial advance toward a final fee can properly be made. Maxwell v. Wilmington Dental Mfg. Co., 82 F. 214 (Cir.Ct.Del.1897); See Merchant’s Bank of St. Joseph v. Crysler, 67 F. 388, 391 (8th Cir. 1895).

Several policy considerations support this rule. First, the allowance of only partial fees encourages a receiver to act diligently and promptly in obtaining an early termination of the receivership. See Maxwell v. Wilmington Dental Mfg. Co., supra at 216. Second, since the receiver’s final fee is measured by the value of his services, the results which are accomplished must be considered. See Pink v. State, 105 S.W.2d 265, 270 (Tex.Civ.App. — Austin 1937, aff’d); 133 Tex. 82, 124 S.W.2d 981 (1939). Until a final report and accounting has been filed, however, the trial court cannot accurately determine the results achieved by the receiver. Finally, the allowance of partial advances against a final fee will preclude further appeals similar to the present case. If the trial court does not purport to determine the total value of the receiver’s fee up to a certain time, the order will be interlocutory and not appealable. Cf. Bergeron v. Sessions, 554 S.W.2d 771 (Tex.Civ.App. — Dallas 1977, no writ) (where order awarded final compensation to receiver and his accountant up to date of hearing, order was not interlocutory, but rather final and appealable). A reasonably prompt settlement is to the benefit of creditors and alternate beneficiaries, and appellate review of each intermediate award of final fees would unduly hinder the administration of the receivership. Since we conclude that the trial court erred in making this final award of partial compensation, we must reverse and remand the case for further proceedings in the trial court. We will address the remaining points of error by way of instructions upon remand.

Jury Trial

Prior to the hearing on the receiver’s motion for fees, the executor paid a jury fee. At the hearing, he requested a jury, but the request was denied. He now argues that, upon remand, he should be afforded a jury trial on the issue of fees. We disagree. The right to trial by jury is not absolute, and special circumstances may justify its qualification. See State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 293 (Tex.1975). Traditionally, it has been held that the right to trial by jury does not extend to receivership proceedings. Moody v. State, 538 S.W.2d 158, 161 (Tex.Civ.App. —Waco 1976, writ ref'd n. r. e.). Ferguson v. Ferguson, 210 S.W.2d 268, 269 (Tex.Civ.App. —Austin 1948, writ ref’d n. r. e.), cert denied, 339 U.S. 916, 70 S.Ct. 559, 94 L.Ed. 1341 (1949); McHenry v. Bankers’ Trust Company, 206 S.W. 560, 572 (Tex.Civ.App. — Galveston 1918, writ ref’d). The rationale for this exception is that since receivership property is in custody of the law, its management and control is that of the court; jury intervention would impermissibly transfer control and management of the receivership from the court to the jury. Ferguson v. Ferguson, supra at 269.

Although the executor argues that jury determination of fees would not result in a transfer of control, it is apparent that submission of the fee issue to a jury would ultimately result in a transfer of management responsibility from the court to the jury. A receiver is not like other claimants against the receivership property; as an officer of the court, the receiver is subject to the court’s supervision. His accountant is in a similar position. One of the most effective means of controlling the efficiency of court officers is by setting their compensation to reflect the diligence and value of their performance. To allow the jury to make this decision would result in direct jury participation in the management and control of the receivership. Under the authorities, this type of jury interposition is impermissible. Accordingly, we hold that the executor is not entitled to a jury trial on the issue of the final award of fees to the receiver and his accountant.

Standards for Fee Determination

The executor next argues that the trial court applied erroneous legal standards in awarding the fees. We agree, and by way of instruction, will set forth the applicable standards for the trial court’s application upon remand.

The receiver in the present case served not only as receiver, but also as his own attorney. However, the record does not reflect any attempt by the trial court to separate work done by the receiver which necessitated legal skills and that which did not. We hold that this was erroneous. The receiver’s compensation as receiver and attorney must be determined separately, for a receiver is not entitled to compensation at a legal rate for work which does not require legal skills. See King v. Premo & Kings Inc., 258 N.C. 701, 129 S.E.2d 493 (1963); Conover v. West Jersey Mtg. Co., 96 N.J.Eq. 441, 126 A. 855 (Ct. of Chancery 1924).

A receiver’s compensation is to be determined by the value of his services. Pink v. State, 105 S.W.2d 265, 270 (Tex.Civ.App. — Austin 1937, aff’d), 133 Tex. 82, 124 S.W.2d 981 (1939); Taylor v. Taylor, 91 S.W.2d 394, 398 (Tex.Civ.App. — Amarillo 1936, no writ); See United States v. Admiral Refining Co., 146 S.W.2d 830, 831-832 (Tex.Civ.App. — Texarkana 1940, no writ). The controlling factors in ascertaining this value are:

(1) the nature, extent and value of the administered estate;
(2) the complexity and 'difficulty of the work;
(3) the time spent;
(4) the knowledge, experience, labor, and skill required of, or devoted by the receiver;
(5) the diligence and thoroughness displayed; and
(6) the results accomplished.

Taylor v. Taylor, supra at 397; See Pink v. State, supra at 271. The fact that the beneficiaries of the residue of a receivership estate bear no relationship to the deceased cannot be considered in determining the receiver’s compensation. Cf. In re Perry’s Estate, 168 Wash. 428, 12 P.2d 595, 598 (1932) (executor’s fee).

As attorney to the receiver, Session’s compensation is also to be determined by the reasonable value of his services. This compensation should be set separately from that of the receiver, and is governed by the following factors set forth in the Code of Professional Responsibility:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved in the results obtained;
(5) The time limitations imposed by the circumstances;
(6) The experience, reputation, and ability of the lawyer or lawyers performing the services.

State Bar of Texas, Rules and Code of Professional Responsibility, DR 2-106 (1971); See United States v. Admiral Refining Co,, supra at 832; cf. Pink v. State, supra at 270 and Brand v. Denson, 81 S.W.2d 111 (Tex.Civ.App. — Austin 1935, writ dism’d) (decided under former Canons of Ethics). Professional services of an accountant to a receiver should also be measured by these guidelines.

Finally, we note that in receivership proceedings, a court should cautiously avoid excessive or improper fee allowances. Pink v. State, supra at 270. Sufficient fees should be allowed to induce competent persons to serve as receiver, attorney or accountant; however, receiverships should also be administered as economically as possible, and fees for services performed by these court officers should be moderate rather than generous. Lewis v. Gramil Corp., 94 So.2d 174, 177 (Fla.1957). The receiver argues persuasively that the affairs of the receivership have been handled diligently and competently and that he and his accountant have performed outstanding services which have been of great value to the estate. We emphasize that nothing in this opinion should be understood as indicating a contrary view, or that we have determined from the record that the fees allowed by the trial court were unreasonable.

Reversed and remanded with instructions.

      . Although we are aware of no standard practice in awarding partial fees, an acceptable procedure seems to be for the trial court to make an order contemporaneously with the appointment of a receiver which permits the receiver to retain from the estate a monthly advance. See Merchant’s Bank of St. Joseph v. Crysler, supra at 391. To motivate prompt and diligent action by the receiver, the partial advances should be materially less than the value of the services rendered by the receiver prior to the allowance. See Maxwell v. Wilmington Dental Mfg. Co., supra at 216.


text:
    CIRCUITRONICS, INC., Appellant, v. TEXAS EMPLOYMENT COMMISSION and Gloria J. Howard, Appellees.
    No. 19345.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 9, 1978.
    Rehearing Denied Feb. 9, 1978.

      James M. Hurst, Dallas, for appellant.
    John Hill, Atty. Gen. of Tex., Gayle Johnson Cipriano, Asst. Atty. Gen., Austin, for appellees.
   AKIN, Justice.

Circuitronics, Inc., is appealing from a county court’s judgment sustaining the decision of the Texas Employment Commission charging back the unemployment account of appellant for one year because Circuitronics terminated the employment of Gloria J. Howard. The question presented is whether an offer to rehire the former employee in the same position and at the same salary is an offer of “suitable work” under Tex.Rev.Civ.Stat.Ann. article 5221b-3(c) (Vernon 1971). We hold that it is and, accordingly, modify the judgment of the trial court.

Trial was upon stipulated facts. On February 2, 1975, Gloria Howard was discharged from Circuitronics, Inc. Approximately two to three weeks later, the supervisor who had discharged her was also discharged. Howard filed her claim for unemployment benefits on July 2, 1975, and on July 8, appellant offered to rehire her. It was also stipulated that on July 8, Howard probably did not know that the supervisor who had discharged her had himself been discharged. On July 25, Howard was declared eligible for unemployment benefits and the Texas Employment Commission issued its order that appellant’s account be charged back for a period of one year. At a formal hearing on August 25, before the appeals tribunal of the employment commission, Circuitronics made a second offer to rehire Howard in the same job with the same wages but informed Howard that the supervisor who had discharged her had also been discharged. She was told at this time that the president of Circuitronics had not participated in or been aware of the circumstances of her discharge. Nevertheless, she refused re-employment and the Commission’s decision was affirmed by the appeals tribunal of the Commission. Circuitronics then appealed to the county court, which found that the Commission’s decision was supported by substantial evidence and that the job offer was not an offer of “suitable work” under Tex.Rev.Civ.Stat.Ann. article 5221b-3(c) (Vernon 1971).

Appeals from orders of the Texas Employment Commission are governed by the substantial evidence rule. Texas Employment Commission v. Holberg, 440 S.W.2d 38 (Tex. 1969); Texas Employment Commission v. Keller, 456 S.W.2d 225 (Tex.Civ.App. — Waco 1970, no writ). In order for an appealing party to prevail it has the burden to show that the Commission’s decision was not reasonably supported by substantial evidence. De Leon v. Texas Employment Commission, 529 S.W.2d 268 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n.r.e.); City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex. 1966); Texas Employment Commission v. Keller, supra, or stated another way, the Commission’s decision was arbitrary, unreasonable, capricious and was made without regard to the facts or to law, De Leon v. Texas Employment Commission, supra; Texas Employment Commission v. Holberg, supra.

Circuitronics concedes that, under the substantial evidence rule, it was responsible for Howard’s unemployment from July 2 to August 25, 1975. However, with respect to the period after August 25, Cir-cuitronics argues that the trial court erred in sustaining the Commission’s decision to charge back its unemployment account because it offered Howard employment in her former position, at the same salary, and without the presence of the objectionable supervisor. Circuitronics asserts that the second offer was an offer of suitable employment as a matter of law. In support of this contention, Circuitronics cites article 5221b-3(c) which provides:

If the Commission finds that during his current benefit year he has failed, without good cause ... to accept suitable work when offered him . Such disqualification shall be for not less than one (1) nor more than thirteen (13) benefit periods following the failure, as described above to apply for or accept suitable work, the degree of disqualification to be determined by the Commission according to the circumstances in each case. [Emphasis added]

Article 5221b-3(c)(l) sets forth the standards to determine whether work is suitable. It provides:

In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals at the place of performance of his work, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence. [Emphasis added]

As we read these statutes, the job offer of August 25 was an offer of suitable work within the language of the act and Howard’s refusal was without good cause, as a matter of law. Accordingly, we hold that neither the commission nor the trial court was justified in charging back Circuitronics’ unemployment account after that time. To hold otherwise would frustrate one of the basic purposes of the Texas Unemployment Compensation Act, Tex.Rev.Civ.Stat.Ann. article 5221b-l (Vernon 1971), that is, to provide stable employment. To permit a charge back under these circumstances would penalize Circuitronics for attempting to accomplish the very purpose of the act. In Rowan Oil Co. v. Texas Employment Commission, 152 Tex. 607, 263 S.W.2d 140, 143 (1953), the supreme court stated:

. . . [O]ne purpose of Article 5221b is to prevent unemployment and . the whole structure of the act tends to stabilize employment by rewarding the employer who provides stable employment .

The Commission argues that Circuitron-ics’ offer was not made in good faith in that it was an attempt to bring about Howard’s disqualification for benefits. No evidence supporting this contention exists, nor can any reasonable inference of bad faith be drawn from the record. Indeed, in our view, the motive behind the offer is immaterial since, if the offer is accepted, the purpose of the act is accomplished.

Accordingly, the trial court’s judgment is modified by limiting the charge back to Circuitronics’ unemployment account to reflect unemployment benefits paid to Howard from July 2, 1975 to August 25, 1975, and not thereafter.

Judgment modified and affirmed.


author: RAY, Justice.

text:
    B & M MACHINE COMPANY, Appellant, v. AVIONIC ENTERPRISES, INC., Appellee.
    No. 8528.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 10, 1978.
    Rehearing Denied Feb. 7, 1978.
    Frank H. Pope, Jr., Yarborough & Pope, Inc., Bedford, for appellant.
    Ed T. Smith, Bonham, for appellee.
   RAY, Justice.

This is a suit on a contract. B & M Machine Company (B & M), appellant (plaintiff), brought suit against Avionic Enterprises, Inc. (Avionic), appellee (defendant), for breach of contract seeking recovery of damages in the sum of $3,300.00. The case was tried without a jury and the trial court entered its original judgment on April 14, 1977, in which it was decreed that appellant (plaintiff) take nothing and assessed all costs against appellant. On April 29, 1977, the trial court entered a second judgment that appellant recover the sum of $412.50 and taxing costs against appellant. B & M Machine Company has attempted to appeal and submits eleven points of error for our consideration.

The record reflects that prior to January, 1974, Avionic contracted with Kelly Air Logistics Center to build eight stair ladder levers; that Avionic was to provide the raw material to construct the stair ladder levers, machine the levers, anodize the levers, install the bearings, paint and package the levers, and ship the levers to Kelly Air Logistics Center; that Kelly Air Logistics Center was to pay Avionic the sum of $1,640.64 for the total contract price which included the machine operation. In the early part of 1974 Avionic was involved in other work and desired to subcontract the machining portion of the eight levers; that George Waldie, Avionic’s agent, went to B & M Machine Company’s place of business in Tarrant County to subcontract the machining portion of the job; that Waldie had authority to subcontract this part of the work for as much as $60.00 per unit or total authority to subcontract the job for as much as $480.00; while at B & M Machine Company, Waldie talked to Glen Boydstun, president of B & M, about that company’s machining the levers; that following Boydstun’s and Waldie’s conversation, Boydstun notified William Blue, an employee of B & M at that time, and gave Blue the government specifications which had been brought to B & M by Waldie and Boydstun asked Blue to prepare a bid or offer to be submitted to Waldie; that pursuant to Boydstun’s request, Blue arrived at a bid or offer concerning the machining of the levers; that upon completion of the preparation of the bid concerning the levers, Blue delivered the result to Waldie; the bid was submitted to Waldie and Waldie understood the total bid to be $412.50 for machining all eight levers at $51.56 each; that Boydstun understood the $412.50 offer submitted by Blue to be the price charged for each lever machined by B & M for a total contract price of $3,300.00; that Blue did not know whether the $412.50 price he submitted was a per unit price or a total contract price; that on or about January 7, 1974, subsequent to the bid, Avionic sent to B & M its purchase order for machining the eight levers which showed $412.50 to be the total consideration to be paid by Avionic to B & M for machining the levers; that following B & M’s receipt of the purchase order and prior to its completion of machining the levers, there arose a dispute between appellant and appellee as to the contract price that appellee was to pay to appellant for machining the levers. The trial court determined that the parties did not have a meeting of the minds concerning the contract price, and we think rightfully so, and entered its first judgment accordingly.

Appellant’s eighth point of error is as follows:

“The Trial Court erred in entering its ‘Amended Judgment’ on April 29th, 1977, for the reason that such judgment did not specifically vacate the ‘Final Judgment’ entered on April 14th, 1977.”

We agree with appellant that Rule 301, Tex.R.Civ.P., provides for only one final judgment in any cause. The language in the second judgment does not purport to vacate the first judgment and the second judgment is therefore a nullity. Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83 (1941); Beacon Homes, Inc. v. Aguilar, 552 S.W.2d 506 (Tex.Civ.App. El Paso 1977, no writ).

The record reflects only one cost bond filed in the trial court on May 20, 1977, which was to perfect an appeal from the judgment entered on April 29, 1977. The cost bond was not filed in time to perfect an appeal from the judgment of the trial court dated April 14, 1977, because it was not filed within thirty days after rendition of judgment. Rules 354 and 356, Tex. R.Civ.P. No motion for new trial was filed which would have extended the time for filing the cost bond. Though it is not necessary to file a motion for new trial in a non-jury case, if such a motion is timely filed, however, it extends the time for filing the cost bond until thirty days after the order overruling the motion for new trial or thirty days after the motion for new trial has been overruled by operation of law. Park v. Essa Texas Corporation, 158 Tex. 269, 311 S.W.2d 228 (1958); Rule 356, supra.

The filing of the cost bond within thirty days is mandatory and jurisdictional and the failure to timely file the bond is fatal to the appeal. Since appellant failed to timely file its cost bond, no appeal has been perfected to this court.

Accordingly, the appeal in this case is dismissed for want of jurisdiction.