author: McKAY, Justice.

text:
    THEATRES OF AMERICA, INC., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 1169.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 1, 1979.

      Charles R. Burton, John L. Foster, Min-ton, Burton & Fitzgerald, Inc., Austin, Roger Jon Diamond, Hecht, Diamond & Greenfield, Pacific Palisades, Cal., for appellants.
    David M. Kendall, First Asst. Atty. Gen., Sal Levatino, Austin, for appellee.
   McKAY, Justice.

This is an appeal from certain orders of the trial court approving the final report of a receiver appointed by that court and taxing costs incident to the receivership.

On September 21,1977, the State of Texas brought a proceeding by a petition and information in the nature of quo warranto against Theatres of America, Inc., a New Mexico corporation and appellant here, and Jay C. Battershell, Gene Battershell, Christine Battershell, and Robert Graham, individually and as officers and agents of said corporation (hereinafter referred to collectively as “defendants”), for a temporary restraining order and ultimately a permanent injunction to prevent defendants from conducting any business in this State without a proper Certificate of Authority and from disposing of any property of said cor--poration; to appoint a receiver to take charge of the affairs and property of the corporation and to maintain the status quo; to recover all fees, taxes, and other monies due the State, as well as costs of the receivership; and to foreclose the State’s liens on the property of the appellant corporation. The petition alleged that defendants had done business in Texas as said appellant corporation without being legally incorporated in Texas and without first obtaining a Certificate of Authority to do business in Texas. The petition further alleged that defendants failed to pay franchise taxes due to the State and failed to deposit in trust with the Comptroller of Public Accounts the sum of $500.00 as required by Taxation-General Article 12.06, Tex.Rev. Civ.Stat.Ann., and by virtue of said failure defendants thereby became bound and obligated to pay certain penalties to the State as provided by Article 12.14. There was a further allegation of great and irreparable damage which would result to the general public and to the State unless the injunctive relief and receivership prayed for were granted, and that there was no adequate remedy at law. Moreover, the State claimed that defendants, unless such relief were granted, would continue to do business in Texas as a foreign corporation without a Certificate of Authority and would dissipate, secrete, conceal and remove from the jurisdiction of the court all of the assets, books and records of the appellant corporation.

The district court, after an ex parte hearing on the same day, issued an order temporarily restraining defendants and appointing a temporary receiver. After making findings in accordance with the allegations of the petition, the court ordered that Phillip K. Maxwell, an Austin attorney, be appointed temporary receiver and directed him to take possession of all property, assets, books, and records of the appellant corporation; and granted to the receiver, as representative of the appellant corporation, all powers and authority necessary to preserve, protect and recover all funds, assets and property of the appellant corporation, and to file, prosecute and defend suits by or against the appellant corporation. The order further required a bond in the sum of $1,000.00 to be made by the receiver, conditioned upon the faithful performance of his duties.

The order further temporarily restrained the appellant, its directors, stockholders, officers, agents, employees, servants, representatives and attorneys from operating and conducting any business of the appellant corporation within the State of Texas without being legally incorporated in this State or being admitted under proper Certificate of Authority, and from disposing of, concealing or removing from the jurisdiction of the court or from the place of business of the corporation, any property of the corporation.

Defendants submitted two affidavits in opposition to the motion for a temporary injunction and a memorandum of points and authorities. The first affidavit, that of Robert Graham, stated that if there had been any error in connection with the operation of the business with respect to compliance with Texas civil taxing statutes and other requirements, it was inadvertent. The affidavit further stated that on the same day that the temporary restraining order and order appointing a temporary receiver was entered, officials of the Attorney General’s office entered upon the premises of the Mini-Vue Theatre owned and operated by defendants, removed all personal property therefrom, ordered Graham out of the premises and prevented his re-entering them, and prevented the further operation of the business of appellant there. This, according to the affidavit, was accompanied by extensive news media coverage. The second affidavit by Linda Spreacker, an employee of a firm of certified public accountants, stated that there was no attempt by the owners of the Mini-Vue Thea-tre to avoid paying any Texas State taxes or local taxes or any other fees required by law.

Following expiration of the temporary restraining order, the court below, upon a hearing at which all parties were represented, granted a temporary injunction as prayed for by the State, restraining appellants, its directors, stockholders, officers, agents, employees, servants, representatives and attorneys from conducting any business of appellant corporation within the State of Texas without a Certificate of Authority, and from disposing of or concealing from the court-appointed receiver any books, records, assets or other property of said appellant corporation located within the State of Texas. The court further ordered that the appointment of Phillip K. Maxwell as temporary receiver of appellant corporation be continued in full force and effect pending further orders of the court or until such time as appellant should deposit with the clerk of the court a bond in the amount of $50,000.00. Thereafter, defendants answered by a general denial.

Meanwhile, defendants had filed suit on September 29 in the United States District Court for the Western District of Texas, Austin Division, against the Texas Attorney General, the receiver and others. The next day, that court issued a temporary restraining order dissolving the receivership. The court found that the State’s purpose in filing suit and having the receiver appointed was not solely to collect delinquent taxes, but that at least one of the motives of the State in pursuing its tax suit was to shut down the theatre because of the content of the films which state officials believed to be pornographic, thereby violating the First Amendment rights of defendants. The court stated,

“Whether it is constitutionally proper for the State to exercise its power to control pornography by the use of its tax laws is not before the Court at this time However, the narrow point presented in the request for the temporary restraining order is whether the State, in an ex parte hearing, may appoint a receiver with the power to take over a business and seize its property in a case in which the motivations of the State clearly show that First Amendment rights are threatened. Moreover, the evidence shows that it was not impossible for the State to give the defendants in the state tax suit notice of their application for the appointment of a receiver and an opportunity to be heard prior to the state court’s ruling on the application. This court is convinced that the Constitution of the United States does not countenance such procedures.”

The court thereupon ordered that the receiver appointed by the court below immediately return all property taken by him from the Mini-Yue Theatre, restore defendants to said theatre, and in particular permit defendant Robert Graham to enter the theatre for the purpose of reopening and operating it and the associated bookstore. The receiver was further temporarily restrained from acting as a receiver in this case.

Thereafter a single judge of the United States Fifth Circuit stayed the U.S. district judge’s order, but on further consideration by a panel of the Fifth Circuit Court of Appeals, the stay was vacated. The federal district judge then, after an evidentiary hearing on the motion in that court by defendants herein for a preliminary injunction, issued on October 28 his memorandum opinion and order to the same effect generally as the order issued which granted the temporary restraining order.

The evidence adduced at the hearing indicated, inter alia, that the office of the State Comptroller of Public Accounts, which normally referred possible forfeiture suite to the Taxation Division of the Attorney General for prosecution, did not do so here, and that defendants herein had been notified by the Comptroller’s office that they had complied with the law, that they no longer needed a Certificate of Authority, and that they had paid all back taxes through September 30, 1976. Further, the suit was filed by the Organized Crime Division of the Attorney General, not by the Taxation Division, and was filed apparently pursuant to a phone call placed by Potter County law enforcement officials to State officials in Austin.

After a recitation of the evidence presented at the hearing, the Federal court stated,

“In view of the above facts, the Court is of the opinion that the State’s purpose in filing the tax suit and having the receiver appointed was not solely to collect delinquent taxes and forfeitures. The State obviously sought to have the theater cease operations because of the content of the movies which the state officials felt were being shown in the theater. Thus it is clear that First Amendment rights are at issue here. Motion picture films clearly are protected by the First Amendment even if shown for commercial purposes. [Citations omitted.] This court is strongly of the opinion, as stated in open court, that the actions of the State in having the receiver appointed and in shutting down the Mini-Vue Theater and bookstore were done in bad faith and for the purpose of harassing Plaintiffs and suppressing their constitutionally-protected conduct.
“. . . In the present case, Plaintiffs do not seek to have any actual levy or assessment of taxes enjoined; in fact the evidence shows that they have willingly paid any assessments which have been imposed to date . . .. Plaintiffs have sought at this stage merely to have the receiver enjoined from closing down their First Amendment enterprise, and the preliminary injunction ordered by the Court in no way prevents the State from levying, assessing, or collecting whatever taxes or penalties, if any, are properly owed to the State. The State has made no showing here that the removal of the receiver from the Mini-Vue Theater will jeopardize the collection of any taxes which may be assessed ....
. . This Court has found motivations of bad faith and a desire to harass on the part of the State in the present case .
“. . . Plaintiffs herein easily have . met their burden, they were engaged in activities protected by the First Amendment, and this Court has found that the nature of their conduct was a prime motivating factor in the State’s appointment of the receiver to assume control of the theater. Plaintiffs having carried their burden, it became the State’s burden to show by a preponderance of the evidence that the same course of action would have been taken irrespective of the improper motivation . . .. Certainly the State has not shown by a preponderance of the evidence that its receiver would have been appointed, or that the receiver would have seized Plaintiff’s property and shut down the business, thus preventing the generation of revenues to pay any taxes that might be due, had it not been for the State’s concern about the nature and content of Plaintiffs’ merchandise.”

The court then ordered that the motion for preliminary injunction be granted and further ordered that the receiver appointed by the trial court herein be preliminarily enjoined from acting as a receiver in this case or interfering in any way with the conduct of the Mini-Yue Theatre and bookstore in Amarillo.

Thereafter the receiver rendered his final report to the court below indicating, inter alia, that all property had been returned, that the costs of receivership were $4,656.71, and requesting, in view of the federal court proceedings, that he be discharged as receiver. Appellant filed objections to the final report of the receiver, praying for discharge of the receiver and disapproval of the costs of the receivership or, alternatively, the taxing of such costs against the State. The receiver responded to such objections, then supplemented his final report by adding $400.00 to the costs of the receivership to compensate him for the additional time he spent in compiling such response. The trial court entered two orders, the first approving the final report and supplement thereto of the receiver and discharging the receiver, and the second ordering that all fees and expenses of the receivership incurred through October 28, 1977, be taxed as costs against appellant corporation and those after that date against the State. (October 28 was the date of the hearing in Federal Court on the preliminary injunction to restrain the receiver from acting further in that capacity. Of the costs indicated above, about $500.00 appears to have been incurred after October 28, 1977.) Theatres of America, Inc., alone appeals from these orders.

On May 25, 1978, the federal district court entered its memorandum opinion and order (1) declaring that the seizure and shutdown of the Mini-Vue Theatre were clearly unconstitutional as violative of the First Amendment to the U.S. Constitution, (2) permanently enjoining Maxwell from acting as a receiver or interfering in any way with the conduct of the theatre and bookstore, and (3) denying the prayer for monetary damages against the receiver, the State Attorney General and the Assistant Attorney General who prosecuted the case. The court stated in a footnote,

“The Court notes that some of the amounts sought as damages are amounts which a Texas state court has assessed as costs in favor of the receiver and against the theater owners in the underlying state suit. The parties have advised this court that the judgment in that state suit is now under appeal. It seems to us that the state court is indeed the proper place for the issues surrounding the disposition of these funds to be decided.”

Judgment on the decision by the court was dated May 31, 1978. Significantly, appel-lees here have not appealed this order or judgment.

The principal suit by the State against Theatres of America, Inc., and its officers is still pending in the State district court.

Appellant predicates its appeal upon a single point of error complaining that the trial court erred in assessing the costs of the receivership against appellant because the order creating the receivership violated appellant’s constitutional rights and was therefore void. Appellant refers to the rights guaranteed by the First and Fourteenth Amendments to the U.S. Constitution and Article I, sec. 8, of the Texas Constitution.

Appellant argues in its brief before this court that the State’s real motive was to' shut down a theatre which State officials^ believed to be exhibiting pornographic movies, rather than to collect taxes. The trial court, it claims, was without jurisdiction to enter an order which violates the U.S. and Texas Constitutions and therefore such order was void. Appellant further contends that the determination of the federal district court that the order creating the receivership violated the First Amendment is res judicata and binding on the trial court. Thus, the taxation of all costs of the receivership should be against the party who brought about this unconstitutional proceeding, and appellant prays that the orders appealed from be reversed and judgment be rendered that the costs of the receivership and this appeal be taxed against the State.

Appellees, the State of Texas and Maxwell (the receiver), argue in three counterpoints that the order of the trial court granting the temporary injunction and continuing the temporary receivership was valid, that said order was not appealable, and that the federal court order enjoining the receiver is interlocutory and is not res judi-cata on the issue of the validity of said State court order. Appellees further contend that appellant failed to appeal from the order appointing the receiver, thereby waiving its right to contest such appointment; that this appeal is an impermissible collateral attack in that it attempts to appeal from the order appointing the receiver, which is an “unappealed appealable order;” and that the receiver made proper application of the funds that came into his hands. Appellees pray that the trial court orders appealed from be affirmed.

The orders of the trial court approving the final report of the receiver, discharging the receiver, and taxing costs of the receivership are final and appealable. Renn v. Samos, 42 Tex. 104, 109 (1875); Bergeron v. Session [sic], 554 S.W.2d 771, 775 (Tex.Civ.App.-Dallas 1977, no writ); 49 Tex.Jur.2d Receivers sec. 168 at 207; see also Bergeron v. Sessions, 561 S.W.2d 551, 553 (Tex.Civ.App.-Dallas 1977, writ ref’d n. r. e.).

The remedy of receivership is an extraordinary one which must be cautiously applied. Parness v. Parness, 560 S.W.2d 181, 182 (Tex.Civ.App.-Dallas 1977, no writ); McKellar v. Bracewell, 473 S.W.2d 542, 546 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref’d n. r. e.). The question of whether to appoint a receiver is addressed to the sound discretion of the court. Washington American Life Insurance Co. v. State, 545 S.W.2d 291, 294 (Tex.Civ.App.-Austin 1977, no writ). Similarly, where a receiver is appointed, taxation of costs of the receivership and the manner of their collection are matters entirely within the sound discretion of the trial court. Manning v. Lesher, 290 S.W.2d 538, 542 (Tex. Civ.App.-Galveston 1956, no writ); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 294 (1959). Where the trial court is vested with discretionary power, its decision will not be disturbed unless an abuse of discretion is clearly shown, Burnett v. Surratt, 67 S.W.2d 1041, 1042 (Tex.Civ.App.-Dallas 1934, writ ref’d), and where the question for decision on appeal is whether there was an abuse of discretion by the trial court, the appellate court is not to substitute its judgment for that of the trial court but rather must decide whether the trial court’s decision was arbitrary or unreasonable. Laundry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970); Gibson v. Smith, 511 S.W.2d 327, 329 (Tex.Civ.App.-Tyler 1974, no writ).

Although both parties make much of appellant’s argument that the receivership was created in violation of the Constitutions of the United States and the State of Texas and therefore was void ab initio, we do not find it necessary for purposes of this appeal to decide the question of the validity of the order appointing the receiver. Appellant does not purport to appeal from the order appointing the receiver and we do not construe this appeal as an appeal from that order. Neither does appellant contest the portion of the orders appealed from, which discharges the receiver. Concerning the portion of the orders which approves the final report of the receiver, appellant argues that certain costs claimed by the receiver, namely, those he incurred in contesting in federal court his removal as receiver, should not be allowed. In view of our disposition of the appeal from the order taxing costs of the receivership, we do not feel it necessary to reach this issue and we make no ruling thereon. The only question before us on this appeal from the orders approving the receiver’s final report, discharging the receiver, and taxing the costs of the receivership, is whether the trial court abused its discretion in taxing said costs as it did. In order to decide this question, it is not necessary to declare the appointment of the receiver void. Rather, it is merely necessary to find such an abuse of discretion.

A final judgment of a federal court is conclusive in an action in a State court between the same parties and involving the same subject matter, even though the federal suit was commenced subsequent to the institution of suit in the State court. Cook v. Burnley, 45 Tex. 97, 111 (1876). There is no indication in the record before us that the May 25, 1978, order and the May 31, 1978, judgment of the federal district court have been appealed from, revoked, or set aside. On the contrary, they appear to finally determine the issues presented to that court. In determining whether a judg ment rendered in federal court is res judica-ta with regard to an issue in state court, we are authorized to look to the opinion of the federal court to determine the basis upon fwhich it was rendered. Mayfield Co. v. Rushing, 133 Tex. 120, 127 S.W.2d 185, 187 (Tex.Com.App.1939, opinion adopted).

In the instant case, the federal district court preliminarily enjoined the receiver from acting as a receiver herein and found that the State had acted in bad faith and' pursuant to improper motives in bringing this action ostensibly to collect taxes and to impose a receivership on appellant’s property, but actually to close down defendants’ theatre due to the content of the movies shown and books sold, in violation of their First Amendment rights. The court below, subsequent to the entry of said federal preliminary injunction, taxed the costs of the receivership against the appellant. Although said injunction was an interlocutory action, it has subsequently been made a permanent injunction by final order from which the State has not appealed. Under the provisions of Rule 4 of the Federal Rules of Appellate Procedure, the time for filing notice of appeal from that order has expired.

Appellee contends that the federal district court lacked jurisdiction to entertain a suit concerning the validity of the receivership and should have abstained from decision on that issue. We find no merit in this contention. Appellee contested the jurisdiction of the federal district court in that court and the issue of jurisdiction was determined by that court adversely to appellee. Once a federal court has decided the question of its jurisdiction as a contested issue, a State court has no power to inquire again into such question, in absence of allegations of fraud. Baker & Taylor Drilling Co. v. Amend, 438 S.W.2d 144, 148 (Tex.Civ.App.-Amarillo 1969, writ ref’d n. r. e.).

Thus, we come to the question of whether the trial court abused its discretion in taxing the costs of the receivership against appellant. We hold that it did. The expenses of a receivership must come from the party whose wrongful act brought about the appointment of the receiver. Houston Production Co. v. Taylor, 33 S.W.2d 202, 204 (Tex.Civ.App.-Beaumont 1930, writ ref’d); Delcambre v. Murphy, 5 S.W.2d 789, 792 (Tex.Civ.App.-Dallas 1928, no writ); Archer v. Ross, 262 S.W.2d 213, 217 (Tex.Civ.App.-Fort Worth 1953, no writ); Hammonds v. Hammonds, 308 S.W.2d 895, 897 (Tex.Civ.App.-Amarillo 1957), reversed on other grounds, 158 Tex. 516, 313 S.W.2d 603 (1958). “When it is once decided that a trial judge exercising a ‘discretionary’ authority has but one course to follow and one way to decide then the discretionary power is effectually destroyed and the rule which purports to grant such power is effectively repealed.” Jones v. Strayhorn, supra at 295. In view of the determination by the federal district court, a court of competent jurisdiction, that ap-pellee acted wrongfully and upon improper motives in having the receiver appointed, the court below abused its discretion in taxing costs other than against the party which so wrongfully acted. Appellant’s point of error is sustained.

Appellee has submitted to this court a Motion to Dismiss Appeal upon the alleged grounds that this appeal is moot and that it was not filed in good faith. The argument thereunder, however, indicates that the al-' leged lack of good faith concerned settlement negotiations and not the filing of this appeal. In any event, we find no merit in appellee’s contentions and its motion is overruled.

The trial court having abused its discretion in taxing the costs of the receivership incurred prior to and including October 28, 1977, against appellant, that portion of the orders appealed from so taxing said costs is reversed and judgment is here rendered adjudging such costs against appellee the State of Texas. The remainder of the orders appealed from is affirmed. The orders of the trial court are accordingly affirmed in part and reversed and rendered in part.


source: Caselaw Access Project

author: RAY, Justice.

license: Public Domain

text:
    PIGGLY WIGGLY, Appellant, v. Georgia TURNER, Appellee.
    No. 8666.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 6, 1979.
    Mike A. Hatchell, Ramey, Flock, Hutch-ins, Jeffus, McClendon & Crawford, Tyler, for appellant.

      Sherman Kusin, Harkness, Friedman, Ku-sin & Hooper, Texarkana, for appellee.
   RAY, Justice.

This is an appeal by writ of error. Ap-pellee (plaintiff), Georgia Turner, brought suit against appellant (defendant), Piggly Wiggly, seeking damages for personal injuries allegedly sustained in a grocery store owned by appellant. The trial court entered a default judgment in favor of Turner against Piggly Wiggly in the amount of $32,000.00. Appellant has perfected its appeal through its petition for writ of error and submits four points of error for our consideration.

Appellant contends that the judgment of the trial court should be set aside because appellant is unable to obtain a complete appellate record for purposes of review of the judgment below.

The accident upon which suit is based occurred at a Piggly Wiggly store in Arkansas. Service upon appellant in Texas was accomplished through appellee’s motion, under Rule 106, Tex.R.Civ.P. (Supp.1978), contending that it was impractical to secure personal service on the appellant. The motion was not sworn, no affidavits were filed in support of it, and apparently no eviden-tiary hearing was held prerequisite to its consideration. Service was had by a private citizen delivering a copy of the citation and petition to the manager of a Piggly Wiggly store in Texarkana, Texas. No answer was filed by Piggly Wiggly and a default judgment was thereafter taken.

This is a case in which the appealing party, through no fault of its own, is unable to procure a statement of facts. Appellant is entitled to have this court review the evidence, if any, adduced at the hearing regarding substituted service so that this court can determine the sufficiency of such evidence. Appellant’s inability to obtain a statement of what evidence, if any, was presented and considered by the trial court entitles it to a reversal. The affidavit of the court reporter for the trial court states, “I have examined my records and notes of proceedings and find that I do not have a transcript of any such hearing. Accordingly, I cannot furnish the transcript requested by Mr. Jeffus for purposes of appeal.” The court reporter was referring to the hearing concerning appellee’s motion under Rule 106, Tex.R.Civ.P. (Supp.1978), to authorize service upon the appellant by alternative methods.

The law is now settled in Texas that if a party suffers a default judgment, he is entitled to a reversal if, in the exercise of due diligence and through no fault of his own, he cannot obtain from the court reporter a complete record of the evidence, in question and answer form, necessary to preserve his right of review and to present his points on appeal. Spencer v. Texas Factors, Inc., 366 S.W.2d 699 (Tex.Civ.App. Dallas 1963, writ ref’d n. r. e.); Kimmey v. El Campo Independent School Dist., 566 S.W.2d 363 (Tex.Civ.App. Corpus Christi), rev’d per curiam (only as to the improper taxing of costs), 571 S.W.2d 865 (Tex.1978); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 314 (Tex.Civ.App. Dallas 1975, writ ref’d); Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.1978); 13 Trial Lawyers Forum 31 (1979). Appellant has satis fied all requirements of due diligence by requesting the record from the court reporter and obtaining an affidavit from the reporter that the requested record cannot be provided.

Appellant’s second point of error is sustained. The judgment of the trial court is reversed and the cause is remanded for a new trial.

HUTCHINSON, J., not participating.


author: SHANNON, Justice.

text:
    Aim Joy Bettis NOLAN, Appellant, v. James Jay BETTIS et al., Appellees.
    No. 12813.
    Court of Civil Appeals of Texas, Austin.
    Feb. 7, 1979.
    Rehearing Denied Feb. 28, 1979.

      Robert L. Templeton, Templeton & Garner, Amarillo, for appellant.
    Milton L. Bankston, J. Stockton Williams, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellees.
   SHANNON, Justice.

Appellees, Douglas Dewey Bettis and his brother, James Jay Bettis, individually and as independent executor of the estate of James W. Bettis, Jr., sued appellant, Ann Joy Bettis Nolan, their stepmother, and three Austin attorneys. Appellees’ suit sought actual and exemplary damages and an order canceling a trustee’s deed to appellant to Skyview Ranch, a three hundred and sixty-one-acre tract of land located in Travis County. After trial to a jury, judgment was entered canceling the deed and awarding appellees damages of $27,000.

Appellant perfected an appeal, cause number 12,624, to this Court from that judgment. Because the judgment was interlocutory, this Court dismissed the appeal for want of jurisdiction. 562 S.W.2d 520 (Tex.Civ.App.1978, no writ).

According to the fact statements in the briefs, appellees’ father, James Wallace Bettis, Jr., was married to, but separated from, his second wife, appellant Ann Joy Bettis Nolan, at the time of his death in March of 1973. At that time, appellant’s suit for divorce from Bettis was pending. No children were born to Bettis and appellant. By his first wife, Bettis had two sons, the appellees in the present appeal.

Bettis died testate. His will devised practically all of his estate, including the Skyview Ranch, to his sons, and by its terms the elder son, J. J. Bettis, was named independent executor of the estate. Appellant contested the admission of the will to probate. Judgment was entered admitting the will to probate and this Court affirmed that judgment. Bettis v. Bettis, 518 S.W.2d 396 (Tex.Civ.App.1975, writ ref’d n. r. e.).

In the suit presently on appeal, appellees asserted fraud and conspiracy as grounds for action against appellant and her attorneys. After our opinion in number 12,624, appellees’ claim against the attorneys was severed from their claim against appellant, thereby making the judgment against appellant final and appealable.

The events made the basis for suit occurred during the pendency of appellant’s contest of her husband’s will. After the will was filed for probate, both J. J. Bettis and appellant made application to the county court of Travis County for appointment as temporary administrator of the estate. After a hearing was commenced, the parties agreed that an order might be entered naming Bettis and appellant as joint temporary administrators of the estate. The order, however, was never entered.

The pleadings reveal that at the death of her husband in March, 1973, appellant was living on the Skyview Ranch. The ranch had been purchased by Bettis prior to his marriage to appellant. At Bettis’ death, San Antonio Savings and Loan Association held a first mortgage lien against the ranch for a sum less than $10,000. The market value of the ranch far exceeded the outstanding indebtedness. Appellant made the April and May, 1973, mortgage payments to the savings association.

The contest of the will was heard in June, 1973, and the county court entered an order admitting the will to probate on July 12, 1973. The order also required that J. J. Bettis, as independent executor, pay to appellant “ . . . a sum of money each month, for one year from the date of Decedent’s death, equal to the amount of the mortgage payments which are due and payable on the ranch owned by the Decedent.”

Appellees alleged that appellant’s counsel called upon the executor for payments due appellant for the months of April, May, June and July, 1973, thereby representing to appellees that the payments for those months to the savings association had been made. Appellees pleaded further that the July payment intentionally had not been paid by Mrs. Bettis so as to permit the note to fall into default. Appellant went to San Antonio on July 31, 1973, to negotiate the purchase and transfer of the mortgage to herself. Appellant obtained the transfer of the note and lien on August 2, 1973.

It was further alleged that on or about August 14, appellant appointed one of her attorneys to serve as substitute trustee under the existing deed of trust. On August 14 the substitute trustee prepared notices of foreclosure sale and caused the same to be posted. The substitute trustee on September 4, 1973, conducted a foreclosure sale of the ranch property and struck off the property to appellant at a bid price of eighty-seven cents per acre, a total sum of $300.00. On the same day a trustee’s deed to appellant was executed and filed of record.

Appellees alleged that neither appellant nor her counsel notified them or their counsel that the note and debt were in default, or that appellant had purchased the note and lien, or that appellant intended to foreclose. Appellees pleaded that such acts of appellant were intentional and malicious and done in furtherance of a conspiracy to defraud appellees of their rights to the ranch.

The court’s charge contained thirty-two special issues. The jury answered, inter alia, that appellant failed to give appellees actual notice of the acceleration of the mortgage note and that she failed to make demand upon appellees for payment of the full amount owing on the note. Appellees were not given actual notice of the deed of trust sale. A potential purchaser was present at the foreclosure sale who would have been able to obtain cash for purposes of bidding. The substitute trustee, however, announced at the sale that he would not allow bids unless the bidder produced cash in the amount of the bid at the time of the bid. Because of the substitute trustee’s announcement, the potential purchaser did not bid. The substitute trustee failed to allow the potential purchaser a reasonable time to obtain cash for purposes of bidding. The sales price, $300.00, was grossly inadequate for the land, considering its fair market value of $220,000 at the time of sale. The jury answered further that the failure to give appellees notice of the acceleration of the note, the failure to make demand upon appellees for full payment of the note, the failure to give appellees notice of the sale, and the substitute trustee’s requirement that the bidder possess the cash amount of his bid, caused or contributed to cause the ranch land to be sold at foreclosure for the grossly inadequate price.

The jury found that appellant secured the transfer of the lien on the ranch with intent to foreclose the lien, and caused the substitute trustee to be appointed with the intent to foreclose the lien, all with the fraudulent intent to deprive appellees of their property rights in the ranch. The jury responded also that appellant, acting individually or through her agents, fraudulently intended to deprive appellees of their property rights in the Skyview Ranch by failing to notify appellees of the acceleration of the note, failing to make demand upon appellees for full payment of the note, failing to give appellees notice of the sale, and failing to request the original trustee to serve under the deed of trust. Appellant or her agents acted fraudulently, according to the jury, by requiring the bidder to possess the cash amount of his bid and by not allowing a potential bidder reasonable time to obtain cash for purposes of bidding.

In response to the damage issues, the jury answered that appellant acted with malice in seeking to deprive appellees of their property rights to the land and that exemplary damages should be assessed against her in the sum of $25,000. The jury found that $2,000 in damages would compensate appellees ⅛ loss of use, resulting from the foreclosure, of 161 acres of the 361-acre ranch.

Pursuant to verdict, the court rendered judgment for appellees for $27,000, for cancellation of the trustee’s deed, and for title to be vested in J. J. Bettis, as independent executor of his father’s estate, burdened only with the homestead rights of the surviving spouse in 200 acres of the ranch.

Appellant attacks the judgment by thirty-five points of error. Some of the points of error are “no evidence” or “insufficient evidence” points. Appellees argue that this Court must presume that evidence supports the jury findings because appellant filed no statement of facts in the present appeal. Guthrie v. National Homes Corporation, 394 S.W.2d 494 (Tex.1965). The basis for appel-lees’ argument is given below.

In appeal number 12,624, which this Court dismissed for want of jurisdiction, appellant filed a transcript and a statement of facts. After this Court dismissed that appeal, the district court, after hearing, signed an order of severance in February of 1978. The entry of the order of severance made the judgment final and appealable. Appellant then filed an appeal bond and perfected the present appeal, cause number 12,813, by filing a transcript with the Clerk of this Court. Appellant never filed, nor tendered for filing, a statement of facts in the present appeal, number 12,813.

Appellant has filed a motion with this Court entitled, “Motion to Deem Statement of Facts Filed.” In her motion, appellant argues that the statement of facts filed in the appeal dismissed for want of jurisdiction, number 12,624, should be considered as also filed in the present appeal, number 12,813. Appellant takes this position even though the statement of facts was not admitted into evidence by the district court as a part of the record in the second proceeding and even though no statement of facts was tendered or filed in the present appeal.

An appellate court may take notice of its records for purposes of res adjudicata, but an appellate court may not refer to the statement of facts of another case “ . . . for the purpose of ascertaining a fact not shown in the record of the case before it . . . ” (Emphasis supplied by Supreme Court). Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942). Accord, State v. Savage, 105 Tex. 467, 151 S.W. 530 (1912); Armendiaz v. Serna, 40 Tex. 291 (1874); Zarate v. Unknown Heirs of Zarate, 204 S.W. 697 (Tex.Civ.App.1918, no writ); Jones Hardware Co. v. Telford, 63 S.W.2d 735 (Tex.Civ.App.1933, writ dism’d); Pridgen v. Denson, 220 S.W.2d 194 (Tex.Civ. App.1949, writ dism’d); Amco Mesh & Wire Co. v. Stewart, 474 S.W.2d 740 (Tex.Civ.App.1971, no writ).

The purpose of the rule is to permit an appellate court to protect and effectuate its judgments. The rule allows the court to notice prior judgments, pleadings, issues, identities of parties, and significant filing dates for purposes of res adjudicata. Appellant moves this Court to resort to the record (statement of facts) filed in a previous appeal dismissed for want of jurisdiction, not for purposes of res adjudicata, but instead to ascertain the existence or non-existence of facts to support a jury verdict, which evidence is not shown in a statement of facts in the appeal under consideration.

We admit appellant’s argument is attractive in this case because a statement of facts, presumably reporting the entire trial of the cause, is presently in this Court’s file room among the papers of another appeal. On the other hand, the orderly administration of justice requires that a properly certified statement of facts be filed with the transcript to insure that the statement of facts reflects all of the proceedings and all of the exhibits introduced in the trial of the cause on appeal. In such event, the appellate record will contain a statement of facts always readily available for examination by the Court. This is especially important in view of the many appeals that are transferred presently to other Courts of Civil Appeals by the Supreme Court in order to equalize the several dockets. Most important, however, the rule long followed by the Supreme Court requires that appellant’s motion be overruled. Victory v. State, supra; State v. Savage, supra; Armendiaz v. Serna, supra. Accordingly, in the absence of a statement of facts, this Court will presume that evidence supports the jury’s findings. Guthrie v. National Homes Corporation, supra.

Appellant claims in point of error three that the district court erred in rendering judgment for exemplary damages. The first argument we will consider under the point is that appellees, having sought and obtained equitable relief from the trustee’s sale, may not also recover exemplary damages. As authority for that proposition, appellant relies upon Bush v. Gaffney, 84 S.W.2d 759 (Tex.Civ.App.1935, no writ). Appellant claims that Gaffney “ . has been cited again and again, and we submit enumerates the general rule that punitive damages are not recoverable in this case where equitable relief is sought.” Indeed, it is stated in Gaffney that, “[i]n a suit for the rescission of a sale of land and for the establishment of a constructive trust upon other land, the complainant, upon being awarded the equitable relief sought, is not entitled to the recovery of exemplary damages.”

According to our search appellant is correct insofar as she states that Gaffney has been cited “again and again” (twice) with respect to that proposition of law by the courts of this State. In Briggs v. Rodriguez, 236 S.W.2d 510, 516 (Tex.Civ.App. 1951, writ ref’d n. r. e.), Justice Norvell for the same court that decided Gaffney wrote, “There is a clear and admitted conflict between Bush v. Gaffney and the Supreme Court case of Oliver v. Chapman, 15 Tex. 400, upon the question of the recovery of exemplary damages in a rescission suit. Tex.Civ.App., 84 S.W.2d 764. So far as we have been able to find, the Supreme Court has never cited Bush v. Gaffney with approval . . . ” The second and most recent citation of Gaffney is found in International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 584 (Tex.1963). In Holloway, the Supreme Court, contrary to the holding in Gaffney, held that, “[i]t is consistent with equitable principles for equity to exact ... an additional exaction for unconscionable conduct. There should be a deterrent to conduct which equity condemns and for which it will grant relief.” We decline to follow Bush v. Gaffney.

Another argument under point of error three is that the district court was not authorized to enter judgment for exemplary damages in a sum more than double the amount of actual damages. The authority for this proposition is found in Tex.Bus. & Comm.Code Ann. § 27.01 (1968). Section 27.01 provides, in part, as follows:

“(a) Fraud in a transaction involving real estate or stock in a corporation or joint stock company consists of a
(1) false representation of a past or existing material fact, when the false representation is
(A) made to a person for the purpose of inducing that person to enter into a contract; and
(B) relied on by that person in entering into that contract; or
(2) false promise to do an act, when the false promise is
(A) material;
(B) made with the intention of not fulfilling it;
(C) made to a person for the purpose of inducing that person to enter into a contract; and
(D) relied on by that person in entering into that contract.
(b) . . . The measure of actual damages is the difference between the value of the real estate or stock as represented or promised, and its actual value in the condition in which it is delivered at the time of the contract.
(c) A person who wilfully makes a false representation or false promise, and a person who knowingly benefits from a false representation or false promise, commit the fraud described in Subsection (a) of this section and are liable to the person defrauded for exemplary damages not to exceed twice the amount of the actual damages.”

An examination of § 27.01 shows that it is concerned with misrepresentation of material fact made to induce another to enter into a contract for the sale of land or stock. Because there was neither a contract nor a sale of land between the parties involved in this case, § 27.01 is inapplicable. As a result, appellees are entitled to their common law remedies. Stanfield v. O’Boyle, 462 S.W.2d 270 (Tex.1971). There is no common law rule limiting exemplary damages to double the amount of actual damages simply because real estate is involved.

Appellant also argues under the point of error that the amount of exemplary damages is “ . . . excessive, oppressive and bears no reasonable relationship to the actual damages, if any.” Exemplary damages should be reasonably proportioned to the actual damages suffered. The ratio must necessarily be determined from the facts of each case in order to determine whether the award was made upon the basis of bias and passion. Dial Finance & Thrift Company v. Dennis, 403 S.W.2d 847 (Tex.Civ.App.1966, no writ). In the absence of a statement of facts, we must presume the jury’s assessment of exemplary damages was supported by facts and circumstances. Guthrie v. National Homes Corporation, supra. Further, we refuse to hold, as urged by appellant, that the ratio between actual damages and exemplary damages in this case is excessive as a matter of law.

Appellant maintains in point of error seven that the district court erred in entering judgment for appellees because appellees failed to make a sufficient, adequate, and unconditional tender of funds. Appellees tendered two sums into the registry of the court during the course of the trial. One tender was in the sum of $8,632.83, the amount appellant paid San Antonio Savings for the note, and the second was in the sum of $300, the amount of appellant’s successful bid at the foreclosure sale. According to appellant’s contention, the entire mortgage debt, including principal, interest, late charges, and liquidated damages, was $8,996.43, and not $8,932.83, the total amount tendered by ap-pellees. Appellant marshals many arguments to support her contention that no judgment could be entered in appellees’ favor until a full tender had been made.

Appellant, in her trial pleading, voiced no complaint with respect to any inadequacy in appellees' tender. If appellant had made known her objection, appellees could have amended their tender to meet the objection. By failing to make her complaint before trial, appellant waived whatever error there may have been with respect to tender. See Williams v. Wright, 20 Tex. 499, 503 (1857). The point is overruled.

Appellant lists points of error six and eight in her brief, but does not supply argument or authority in support of those points. It is settled that points of error are required to be supported by argument and authority, Tex.R.Civ.P. 418(e), and if not supported, the points are waived. Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.1944, writ ref’d); Ranger Ins. Co. v. Rogers, 530 S.W.2d 162 (Tex.Civ.App.1975, writ ref’d n. r. e.).

Twenty-five points of error complain of the court’s submission of special issues and instructions in the charge or complain of the court’s failure to submit requested special issues and instructions. Appellant did not file a formal bill of exceptions and the objections and requests do not appear otherwise in the transcript. The claimed error in the charge and in the court’s failure to submit the requested instructions and special issues, therefore, was not preserved for review.

The judgment is affirmed.


author: HUGHES, Justice.

text:
    CUL-CO., INC., d/b/a Tom Thumb Super Market # 47, Appellant, v. Lucille REDD, Appellee.
    No. 18111.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 8, 1979.
    Rehearing Denied March 8, 1979.
    Brown, Herman, Scott, Dean & Miles and Grant Liser, Fort Worth, for appellant.
    Leo P. Ferris, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Trial court denied the plea of privilege of Cul-Co, Inc., doing business as Tom Thumb Super Market # 47, to be sued in Dallas County. Lucille Redd, plaintiff, had controverted. Cul-Co has appealed.

Affirmed.

Ms. Redd urged exception 9a of Tex.Rev. Civ.Stat.Ann. art. 1995 (effective August 29, 1977) alleging Cul-Co was negligent in causing her slip and fall injury. By formal admission Cul-Co admitted that the store where the alleged event occurred is in Tar-rant County.

Ms. Redd was the only witness. She testified to going to store # 47 and to its produce section. There her legs went out from under her and her head hit on the floor; a boy named Chip, who Ms. Redd said was a store employee, came out of “the back room” and helped her up. She saw “a bunch of mashed grapes and water and mud on the floor.”

She said: “My gosh, why don’t you get that mess cleaned up before somebody gets hurt?” He said: “Well, the reason we don’t clean it up is because we are having a floor man come in tonight to do the floors so we don’t bother to clean the floors up on Tuesday nights.” She also testified to her knee bleeding.

Cul-Co did not cross-examine Ms. Redd and presented no testimony.

Cul-Co’s only point of error is that Ms. Redd failed to prove an exception to Tex. Rev.Civ.Stat.Ann. art. 1995, specifically exception 9a (effective August 29, 1977) as pled by her.

We must determine if Ms. Redd proved that: Cul-Co knew of the grapes, mud and water on its floor or should have known in the exercise of reasonable care and that such condition would involve an unreasonable risk to Ms. Redd or other customers; should expect customers would not discover the danger or fail to protect themselves against same; and Cul-Co failed to exercise reasonable care to protect customers against such danger. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex. 1972).

An occupier (i. e., Cul-Co) is under the further duty to exercise reasonable care in inspecting the premises to discover any latent defects, and to make safe any defects or to give adequate warning. 2 Restatement of Torts 2d, § 343, comment b at 216 (1965). (Emphasis ours.)

Mere presence of a mess on the floor is not enough to raise an inference that Cul-Co placed it there, knew of its presence or that it had been there long enough for its servants to discover and correct it. (Emphasis ours.) Houtchens v. Kyle’s Grocery Corporation, 390 S.W.2d 325 (Tex.Civ.App.—Eastland 1965, writ ref’d n. r. e.).

In the evidence above recited it was made abundantly clear by Chip that they had no intention to correct the hazard by cleaning up the grapes, etc., even though he had just helped the fallen Ms. Redd from the slippery floor where she had bumped her head hard enough to attract his attention in another room. Chip’s statement, which was not an opinion, guess or conclusion under Houtchens, supra, is an outright statement of intent or policy regarding not cleaning the floor on Tuesday nights (apparently not even the grapes, the presence of which had caused Ms. Redd to fall).

The statement by Chip, the alleged employee (appellant’s brief, p. 7), who came out of a back room, wearing a badge and who assumed to speak for Cul-Co on its housekeeping procedures, did, indeed, not show personal knowledge that the grapes, etc., were on the floor before the accident. What his remarks did show was that it would not have made any difference — the hazard would have remained until the special cleaning personnel came to do the floors.

It occurs to us that the practice of leaving messes, if they occur, on the floor on certain nights for a late clean-up crew is a hazard in itself of which unwary customers should be advised. In Dante, supra, there was a too-small sign. In this case there was none.

We are required, in our consideration of an appeal from an order overruling a plea of privilege, to resolve every reasonable intendment in favor of the trial court’s judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959). We hold that trial court had sufficient evidence from which to infer negligence and proximate cause on Cul-Co’s part. Cul-Co’s only point of error is overruled.

Affirmed.


author: BISSETT, Justice.

text:
    STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION of Texas, Appellant, v. Linda DOUGLAS et al., Appellees.
    No. 1461.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 8, 1979.
    Rehearing Denied March 1, 1979.

      Joe D. Jarrard, Jr., Asst. Atty. Gen., Austin, for appellant.
    Andrew L. Vogel, D. Lee Thomas, Jr., Fort Worth, Robert A. Allen, San Antonio, Abraham Moss, Law Office of Guy Allison, Corpus Christi, Patrick A. Cullen, Cullen, Crasner, Seerden & Williams, Victoria, for appellees.
   OPINION

BISSETT, Justice.

Two motions are pending before the Court in this case. State Department of Highways and Public Transportation of Texas, appellant, has filed a third motion to extend time to file the transcript and the statement of facts, requesting that the time be extended to February 8,1979. Appellees have filed a motion to dismiss the appeal for lack of jurisdiction. Both appellant and appellees have filed memorandums in support of their positions concerning the latter motion. Appellees urge this Court to dismiss the appeal because appellant failed to file a proper notice of appeal as required by Rule 354(c), T;R.C.P.

Since the Texas Rules of Civil Procedure were amended, effective January 1, 1976, parties wishing to appeal must file a cost bond (or cash in lieu thereof) pursuant to Rule 354(a) and (b), and Rule 356, T.R.C.P., within 30 days after rendition of judgment or the overruling of a motion for new trial unless they are exempt from filing such a bond. Parties who are exempt by the statute and who wish to appeal, need not file such a bond or cash in lieu thereof, but must file a notice of appeal as required by Rule 354(c). The appeal, therefore, is not perfected until the bond or notice, whichever is appropriate, is timely filed. Rule 363.

In the case before us, the State Department of Highways and Public Transportation of Texas is exempt from filing an appeal bond. It was therefore necessary for it to timely file a notice of appeal in order to invoke this Court’s jurisdiction in this appeal.

Appellant states that oral notice of appeal was given in open court on July 27, 1978, after its motion for new trial was overruled. It acquiesces that oral notice may no longer be sufficient, but contends that written notice was also given.

The viability of an oral notice of appeal has recently been decided in City of San Antonio v. Rudewick, 567 S.W.2d 38 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.). In that case, the court discussed the interrelationship between Rule 353 prior to the 1976 amendments to the Rules of Civil Procedure and Rule 354(c) following the amendments, concluding, “there is no longer authorization for an oral notice of appeal given in open court and embodied in the judgment or order overruling motion for new trial or other minutes of the court.” Rudewick at 39. We agree with the court’s reasoning and conclusion in Rudewick.

The sufficiency of a written notice to constitute an adequate notice of appeal under new Rule 354(c) is judged by the same standards as applied to former Rule 353(b). As stated by our Supreme Court, “Under the rules as amended on January 1, 1976, only the appellant who is not required to give a bond for costs on appeal is required to give notice of appeal; and under Rule 354(c) the contents of the notice are precisely what was formerly required by Rule 353 . . .,” Texas State Board of Pharmacy v. Gibson’s Discount Centers, Inc., 539 S.W.2d 141, 142 (Tex.Sup.1976).

We therefore turn to the writing which appellant identifies as a written notice of appeal. This consists of a letter dated August 25, 1978, addressed to the District Clerk of Bee County. We note at the outset that this letter was not designated to be included in the transcript. When the Clerk of this Court brought to our attention the apparent lack of a notice of appeal, appellant was requested to provide evidence of a notice if such existed. He thereafter directed the District Clerk to prepare a supplemental transcript containing the letter in question.

The Clerk’s file mark on the letter shows that it was filed September 5, 1978. The record also reflects that appellant’s amended motion for new trial was overruled July 27,1978. Therefore, the 30-day period during which appellant could perfect its appeal by filing a notice of appeal expired August 26. However, since August 26 fell on Saturday, the due date was automatically extended to Monday, August 28, 1978, under Rule 4, T.R.C.P. The file date of September 5 was within the 10-day mailing rule of Rule 5, T.R.C.P.

Appellant’s attorney has filed an affidavit in which he states that he personally mailed the written notice of appeal on August 5, 1978. Appellees contest this statement, claiming the length of the delay shows the letter must have been mailed later. If timeliness is the critical factor in our decision, this Court has fact-finding power to resolve a dispute concerning date of mailing. See Tex.Rev.Civ.Stat.Ann. art. 1822 (1964); Alexander v. Alexander, 539 S.W.2d 347 (Tex.Sup.1976); Texas Rubber Supply, Inc. v. Jetslide International, Inc., 466 S.W.2d 279 (Tex.Sup.1971); Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Brown v. Brown, 444 S.W.2d 837 (Tex.Civ.App.— Beaumont 1969, writ dism’d). Also see Davies v. Massey, 561 S.W.2d 799 (Tex.Sup.1978) regarding the effect of an affidavit of timely mailing which was uncontroverted.

However, the dispositive issue here is the sufficiency of the letter to constitute a notice of appeal. Rule 354(c) states that:

“When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a notice of appeal which shall be filed with the clerk, within thirty days after rendition of judgment or order overruling motion for new trial (or after such motion is overruled by operation of law.) Such notice shall be sufficient if it states the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or some designated portion thereof. Copy of the notice shall be mailed by counsel for appellant in the same manner as the mailing of copies of the appeal bond.”

The aforesaid letter clearly includes the number and style of the case and the court in which the case is pending. It is therefore the final element of sufficiency which we address.

The first two paragraphs of appellant’s letter dated August 25,1978, describe several instruments being transmitted to the Clerk along with the letter, and designate that these instruments are to be included in the transcript. Appellant’s first motion for extension of time to file the record in this Court stated that the transcript was formally requested on August 25,1978. There is nothing in the record to indicate that the formal request was anything other than the letter dated August 25.

Appellant relies on the third paragraph of the letter as constituting a valid notice of appeal. The third paragraph contains one sentence and is copied in its entirety:

“I anticipate a motion in the Court of Civil Appeals for an extension of time under Rule 21c, Texas Rules of Civil Procedure, may be necessary as to the filing in that court of both Transcript and Statement of Facts since Mr. Johnson, the court reporter, was replaced there and has moved to San Angelo after this trial and has with him there some of the exhibits in this case as well of course as his notes of these proceedings and also, since notice of appeal was first given in open court July 27,1978 in this case after the court overruled Defendant’s, State Department of Highways and Public Transportation’s (now Appellant’s) Motion for New Trial.”

The last portion of the sentence contains the purported written notice of appeal. It is certainly not a clear or direct statement that appellant desires to appeal from the judgment. Nevertheless, we must evaluate its intended meaning in order to determine its sufficiency. The most obvious meaning of the entire sentence is to apprise the District Clerk that the appellant anticipates filing a motion in the Court of Civil Appeals to extend time to file the record. Such a motion is of concern to the Clerk because the Clerk’s deadline for preparing the transcript would be directly affected by the granting or denial of the motion. The reasons cited by appellant for the necessity of additional time are of no direct concern to the Clerk, however, because they relate to the work to be performed by the court reporter.

The reference in the letter to the oral notice of appeal, embedded in a list of reasons for the contemplated'motion to extend time, can be interpreted as a recognition by appellant that the oral notice will not appear of record anywhere until the court reporter’s notes are fully transcribed, including notes taken at the hearing on the amended motion for new trial. It appears to be primarily a reminder that oral notice was previously given.

It is possible to give emphasis to the phrase “first given in open court.” Can it be said that, by implication, any subsequent writing which refers back to the oral notice somehow becomes a “second” or confirming notice, and therefore should be sufficient? We think not.

There is no question that the letter informs the reader that the appellant plans to appeal the judgment. The primary thrust is to identify instruments to the Clerk and request they be included in a transcript. However, merely making requests of the Clerk concerning various aspects of the appeal is insufficient to constitute a notice of appeal. In Standard Insurance Co. v. Teague Brick & Tiie Co., 425 S.W.2d 63 (Tex.Civ.App.—Waco 1968, writ ref’d), the majority held that a letter to the Clerk requesting an estimate of the necessary costs to be used in determining the amount of an appeal bond was not a notice of appeal, whereas the dissent urged that such an inquiry could reasonably be construed as notice of an intention to appeal, and that appellant desires to appeal to the Court of Civil Appeals. The Supreme Court refused the writ in that case and in another case with almost identical facts. See also Weiner v. Murray, 430 S.W.2d 126 (Tex.Civ.App.—San Antonio 1968, writ ref’d). Thus, the liberal construction of the rules does not extend to finding that a writing which clearly conveys an intention to appeal is necessarily sufficient.

The purpose of a writing or statement in several other cases has been analyzed to determine the sufficiency of notice. In Allen v. Fitzpatrick, 487 S.W.2d 146 (Tex.Civ. App.—San Antonio 1972, no writ), the Court determined that statements concerning appeal in a motion requesting entry of judgment were not sufficient, but were merely an announcement of a present intention to take an appeal at a future time. Also see Yancy v. Wolfe, 523 S.W.2d 516 (Tex.Civ.App.—Port Worth 1975, writ ref’d n. r. e.), (letter to judge stating an intention to appeal any adverse judgment); Grivel v. Atlanta Mutual Insurance Co., 513 S.W.2d 297 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.), (present intention to appeal at future time); Shepherd v. City of Austin, 467 S.W.2d 611 (Tex.Civ.App.—Austin 1971, writ ref’d n. r. e.), (intention to appeal unless motion for new trial was sustained); Ortega v. Employers Casualty Co., 223 S.W.2d 663 (Tex.Civ.App.—San Antonio 1949, no writ), (statement that appellate court would have an opportunity to pass on the case).

We are mindful of the liberal construction to be given to the Rules of Civil Procedure, particularly as it relates to this jurisdictional step in perfecting the appeal. See Hunt v. Wichita County Water Improvement Dist. No. 2, 147 Tex. 47, 211 S.W.2d 743 (1948); Inverness Forest Improvement Dist. v. Hardy St. Inv., 541 S.W.2d 454 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.). We conclude that the letter dated August 25, 1978, was not intended to be a notice of appeal. It would have been very easy to include a phrase or sentence merely stating that appellant desired to appeal. This was not done. The only mention of notice of appeal is found within a context unrelated to giving notice and does nothing but refer to an oral notice. This interpretation is strengthened by the failure of appellant to designate the letter to be included in the original transcript, which surely would have been done if appellant planned, at that time (August 25, 1978), to rely on the letter as a notice of appeal sufficient to meet the jurisdictional requirement. We also note that the District Clerk did not recognize the letter as a notice of appeal or she would likely have included it in the transcript even without a designation. See Rule 376, T.R. C.P.

We cannot conclude that the letter is sufficient. Appellant originally relied on the oral notice, but now asks us to find that a statement of such reliance actually constituted a second, jurisdictionally adequate notice. We are unable to so find, and dismiss. the appeal for lack of jurisdiction. Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (Tex.Sup.1956); Howe v. Howe, 223 S.W.2d 944 (Tex.Civ. App.—Eastland 1949, writ ref’d); Grivel v. Atlantic Mutual Insurance Co., 513 S.W.2d 297 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Martinez v. Euler, 524 S.W.2d 814 (Tex.Civ.App.—Corpus Christi 1975, no writ).

Moreover, even if it could be construed that appellant’s oral notice of appeal and its letter indicating that it intends to appeal would amount to what could be denominated “a defective notice of appeal,” then this still would be inadequate. As in the case where an appeal bond is required, a defective bond may be cured if corrected in a reasonable time, but here the State did not intend that the letter to the district clerk be its notice of appeal since it did not request the district clerk to include the letter as part of its transcript until questioned by our Clerk, and then only by incorporating the letter in a supplemental transcript. The State did not at any time attempt to file a corrected notice of appeal as in the case of a defective bond. We hold that the appellant has not given a proper notice of appeal as required by our Rules of Civil Procedure.

Appellant’s third motion to extend time to file the record is denied and appellees’ motion to dismiss for lack of jurisdiction is granted.

APPEAL DISMISSED.


text:
    DUVAL COUNTY RANCH COMPANY and Clinton Manges, Appellants, v. HARLINGEN NATIONAL BANK et al., Appellees.
    No. 1419.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 8, 1979.

      C. H. Duvall, Guerra & Duvall, Roma, for appellants.
    Jeffrey L. Jackson, Rollins M. Koppel, William S. Dubois, Stiernberg, Skaggs & Koppel, Harlingen, for appellees.
   OPINION

BISSETT, Justice.

The question presented by this appeal is whether the trial court correctly rendered judgment for the plaintiffs on the ground that there has been a breach of the “Stipulation for Entry of Judgment” previously made and signed by all parties. We answer that question in the affirmative.

Harlingen National Bank, Dial M. Dunkin and Charles Shofner, plaintiffs in the trial court and appellees in this Court, brought suit against Duval County Ranch Company, a Texas corporation, which is wholly owned by Clinton Manges, and the said Clinton Manges, individually, defendants in the trial court and appellants in this Court, seeking to recover on certain promissory notes executed by the defendants in favor of the plaintiffs. The undisputed evidence established that the notes in question executed by the defendants came into default.

On November 17,1976, subsequent to the time said notes came into default, the defendants entered into an Interim Agreement with the plaintiffs, whereby additional collateral was furnished the plaintiffs as security for the payment of the notes. The Interim Agreement further provided for the release of certain stock in First State Bank and Trust of Rio Grande City, Texas, held by Harlingen National Bank as security, only upon defendants’ proper performance or non-performance of the Interim Agreement. Made part of the Interim Agreement was an assignment of overriding royalty by the defendants in favor of the plaintiffs to further secure payment of the notes. Later, trouble developed.

A trial was had on October 6, 1977. After hearing evidence, the trial court found that the plaintiffs were entitled to judgment in accordance with a certain “Stipulation for Entry of Judgment,” made and signed by all parties, dated October 6, 1977, and filed among the papers of the cause. The judgment was reduced to writing and filed with the district clerk, but was not, at that time, signed by the trial judge since, as reflected by the Stipulation, all material facts relating to the lawsuit and the liability of the defendants were agreed to. It was particularly agreed and stipulated that the judgment would not be presented to the trial judge for signature nor would same be signed by him or entered by the district clerk except on the occurrence or non-occurrence of certain conditions; but, that upon a finding of the occurrence or non-occurrence of a condition, the judgment would be forthwith signed by the trial judge within three (3) days after the attorneys for defendants would be given written notice of such alleged breach of condition and entered by the clerk.

Included in the conditions, the breach of which would be grounds for the signing and entry of the judgment, is the following:

“2. In the event any regular payments which are presently being received from Houston Natural Gas Company by the Harlingen National Bank, as Trustee pursuant to the aforesaid Assignment, are hereafter suspended, discontinued, or amount to less than Fifteen Thousand Dollars ($15,000.00) per month for a period of ninety (90) days.”

On February 17, 1978, the plaintiffs filed a motion for the signing of the judgment by the trial judge and its entry by the clerk of the trial court. With respect thereto, it was alleged:

“. . . that regular payments received by THE HARLINGEN NATIONAL BANK as Trustee from Houston Natural Gas Company referred to in the Stipulation have amounted to less than Fifteen Thousand and No./100ths Dollars ($15,000.00) per month for a period of ninety (90) days prior to the time of the filing of this notice . . . ”

It was further alleged therein that the attorney for the defendants had been given notice of the filing of such motion, and that within three days after receipt by defendants’ attorney of such notice, “Plaintiffs shall present to the Court for signature a Final Judgment in the above entitled and numbered cause the form of which were previously attached to the aforesaid Stipulation as Exhibit ‘A’ and shall request that the same be forthwith . . . entered by the Clerk of this Court in accordance with said Stipulation.”

On February 27,1978, a hearing was held on plaintiffs’ motion. Neither the defendants nor their attorney were present at that hearing. Following the presentation of evidence by the plaintiffs, the judgment, the terms of which had been previously agreed upon by the parties, as aforesaid, was signed by the trial judge as the judgment in the case.

On March 31, 1978, the trial court overruled the defendants’ motion for a new trial. The defendants have appealed.

There is no statement of facts in the record concerning either the trial on October 6,1977, when the Stipulation was made and filed, or the hearing on February 27, 1978, which was had pursuant to the plaintiffs’ motion for the signing and entering of the judgment. Findings of fact and conclusions of law were neither requested by the defendants nor made and filed by the trial court as to either proceeding.

The defendants, over objection by the plaintiffs, presented evidence at the hearing on their motion for new trial, which, according to them, refuted the allegations made by the plaintiffs in their motion for the signing and entering of the judgment. A statement of facts as to what transpired at the hearing on the defendants’ motion for new trial is part of the record before us.

The defendants complain of the judgment in three points of error. First, they contend that the trial court erred in its interpretation of the above-quoted paragraph of the Stipulation, “which error was the basis for the entry of judgment against appellants.” Next, they assert that it was error to render, sign and enter the judgment because there is no evidence “to show that appellants were in breach of the agreed Stipulation for the Entry of Judgment.” Finally, they say that the judgment should be reversed and the cause remanded because the evidence is factually insufficient “to show that appellants were in breach of the agreed Stipulation for Entry of Judgment.”

Under rules that are well-established in this State, absent fundamental error, where there is no statement of facts or findings of fact in the record, and where it is established by the record that evidence was presented to the trial judge prior to the rendition of judgment, it must be presumed, as a matter of law, that the trial court found facts which will and do support the judgment. Guthrie v. National Homes Corporation, 394 S.W.2d 494 (Tex.Sup.1965); Armenta v. Nussbaum, 519 S.W.2d 673 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). We apply that rule to the case at bar.

It is not incumbent upon an appellee to establish in the appellate court that the judgment rendered by the trial court is sustained by the evidence, but the burden is on the appellant to bring to the appellate court a record which reveals reversible error. Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.Sup.1968). The defendants did not meet that burden in this appeal.

The defendants apparently contend that even though there is no statement of'facts with respect to the evidentiary hearing on February 27, 1978, and the rendition and signing of the judgment on the merits of the lawsuit on the same day, we may, in resolving the points of error presented in this appeal, consider the statement of facts prepared as a result of the hearing on the motion for new trial. This, we cannot do. There is no trial record of the evidence adduced which prompted the trial judge to render and sign the judgment which is under attack. The complaints registered by the defendants in their points of error challenge the judgment, not the overruling of the defendants’ motion for new trial. The evidence presented at the hearing on the motion for new trial cannot be used as a substitute for the evidence introduced at the hearing on the merits of the plaintiffs’ motion to have the judgment signed and entered because of an alleged breach of a condition contained in the Stipulation. The points asserted by the defendants wherein they challenge the judgment may not be reached by a statement of facts which pertains solely to the evidence developed at a hearing on their motion for new trial. See Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App.—Tyler 1975, no writ); Hughes v. Hughes, 407 S.W.2d 14 (Tex.Civ. App.—Waco 1966, no writ); P. & M. Sales Co. v. Kenmore Jewelry Mfg. Co., 235 S.W.2d 515 (Tex.Civ.App.—Dallas 1950, no writ).

Fundamental error does not appear in the record. The pleadings support the judgment. The record reveals in this case that the trial judge heard evidence relating to the plaintiffs’ motion that there had been such a breach of condition that would entitle them to request the trial judge to render judgment in the form and in the manner agreed upon by all parties on October 6, 1977, when the Stipulation was signed and filed; the record further shows that the judgment which was signed on February 27, 1978, recites that it was “based upon the pleadings and evidence.” Since there is no statement of facts which set out the evidence which was presented at the hearing on February 27, 1978, and as findings of facts were not filed, we must, under well-established principles, presume that every fact necessary to support the judgment was proved on February 27,1978. See 4, Part 1, Tex.Jur.2d, App. & Err. — Civil Cases, § 388. Under the circumstances, we have no choice but to affirm the judgment of the trial court. All of the defendants’ points are overruled.

AFFIRMED.


text:
    AMPLIFONE CORPORATION, Appellant, v. CAMERON COUNTY, Texas, Appellee.
    No. 1362.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 8, 1979.
    Stephen E. Ulrich, Royston, Rayzor, Vick-ery & Williams, Brownsville, for appellant.
    Seldon N. Snedeker, Dist. Atty., Brownsville, for appellee.
   OPINION

BISSETT, Justice.

This is an ad valorem tax case wherein Amplifone Corporation sought a refund of ad valorem taxes paid to Cameron County, Texas, during the years 1972, 1973 and 1974, and a declaratory judgment that certain of its personal property was exempt from taxation during the 1975 tax year and all future years by virtue of Tex.Rev.Civ. Stat.Ann. art. 7150f. Trial was to the court, which rendered judgment that the plaintiff take nothing in its action for a refund of taxes for the years in question and that the defendant recover all ad valo-rem taxes on the property in question shown by the Tax Rolls to be due for the 1975 tax year. Amplifone Corporation, plaintiff, has appealed. We affirm.

The case reaches this Court on a single point of error. Plaintiff contends that the trial court erred in rendering judgment for Cameron County, defendant, because the property in question was exempt from taxation under the provision of the above mentioned statute.

The taxes in question are taxes which have been levied by the defendant on certain personal property, hereinafter sometimes described as “component parts,” owned by plaintiff. In the course of the years in question, plaintiff, who was in the business of assembling and distributing electronic items, purchased and received many component parts from many suppliers, all of which were outside of Texas. These component parts were then assembled by plaintiff into sophisticated items and shipped by it to places outside of this State.

During the years 1972,1973 and 1974, the total amount of ad valorem taxes paid by plaintiff to defendant on such component parts amounted to $3,558.20. Then, in 1975, plaintiff tendered defendant $1,117.92, an amount allegedly representing the total ad valorem tax due on all of plaintiff’s taxable property, except for the component parts. Defendant refused to accept this tender and plaintiff then instituted this suit for a refund of the taxes paid on the component parts during 1972-74 and for a declaratory judgment, as aforesaid. To use plaintiff’s legal characterization of the issue, the 1972-74 taxes were paid because of a “mutual mistake of fact or law.”

The alleged mistake of fact or of law which constitutes the basis of plaintiff’s suit revolves around the intent of the Legislature in 1963, when Tex.Rev.Civ.Stat.Ann. art. 7150f was enacted, which, according to plaintiff, was “clarified” in 1977, when the statute was amended. As originally passed, the statute, in pertinent part, provided:

“Section 1. All property consigned to a consignee in this State from outside this State to be forwarded to a point outside this State, which is entitled under the tariffs rules, and regulations approved by the Interstate Commerce Commission to be forwarded at through rates from the point of origin to the point of destination, if not detained within this state for a period of more than ninety (90) days, shall be deemed to be property moving in interstate commerce, and no such property shall be subject to taxation in this State; provided, that goods, wares and merchandise, whether or not moving on through rates, shall be deemed to move in interstate commerce, and not subject to taxation in this State if not detained more than nine (9) months where such goods, wares and merchandise are so held for assembly storage, manufacturing, processing or fabricating purposes; providing further that personal property consigned for sale within this State must be assessed as any other personal property. . . . ” (Emphasis supplied).

The statute was amended by the 65th Legislature, effective August 29,1977. The amendment, insofar as this appeal is concerned, along with its explanatory preamble, reads:

“An Act relating to taxation or exemption from taxation with respect to certain personal property; relating to clarifying that certain tangible personal property need not be consigned to qualify for free-port protection; amending Section 1, Chapter 208, Act of the 58th Legislature, Regular Session, 1963 (Article 7150f, Vernon’s Texas Civil Statutes); and declaring an emergency.
Be it enacted by the Legislature of the State of Texas:
Section 1. Section 1, Chapter 208, Acts of the 58th Legislature, Regular Session, 1963 (Article 7150f, Vernon’s Texas Civil Statutes) is amended to read as follows:
Section 1.
‘All property consigned to a consignee in this State from outside this State to be forwarded to a point outside this State, which is entitled under the tariffs, rules, and regulations approved the Interstate Commerce Commission to be forwarded at through rates from the point of origin to the point of destination, if not detained within this State for a period of more than ninety (90) days, shall be deemed to be property moving in interstate commerce, and no such property shall be subject to taxation in this State. Goods, wares, ores, and merchandise originating outside this State, whether consigned to or owned by a taxpayer, shall be deemed to be located in this State for only a temporary period, do not acquire taxable situs in this State, and are not subject to taxation in this State if not detained more than nine (9) months and if such goods, wares, ores, and merchandise are so held for assembly, storage, manufacturing, processing or fabricating purposes. It is further provided that personal property originating outside this State and transported into this State for sale within this State must be assessed as any other personal property. . . . ” (Emphasis supplied).

Article 7150f was construed in Victor Equipment Company v. Denton Independent School District, 548 S.W.2d 464 (Tex. Civ.App.—Fort Worth 1977, writ ref’d n. r. e.). It was held by the Fort Worth Court of Civil Appeals that the statute “excepts from taxation” only consigned property. We agree.

In the case at bar, it is undisputed that for the years 1972, 1973 and 1974, 1) the component parts were shipped by out of state suppliers to plaintiff at its place of business in Brownsville, Texas; 2) such items were detained in Texas by plaintiff for nine (9) months or less; 3) they were assembled, processed and shipped to places outside Texas; 4) none of such items were sold in Texas; and 5) none of the component parts were consigned to plaintiff, but all such items were purchased and owned by plaintiff. Therefore, under the construction of the statute by the Court in the Victor Equipment Company case, which was decided on February 25,1977 (some six months before the effective date of the 1977 amendment), all such property for the years 1972, 1973, 1974 and 1975 were taxable to plaintiff.

It is further undisputed that 1) plaintiff voluntarily signed and delivered personal property renditions to defendant for the years 1972, 1973 and 1974; 2) each of these renditions included the component parts; and 3) plaintiff voluntarily paid $3,558.20 (the sum sought to be refunded) as ad valo-rem taxes on the component parts for those years. There is no evidence that plaintiff, prior to paying said amount of money as taxes, claimed that such property was exempt.

Our Supreme Court has consistently held that, absent duress, the voluntary payment of an illegal tax will not support a claim for repayment. State v. Connecticut General Life Insurance Co., 382 S.W.2d 745 (Tex.Sup.1964); City of Houston v. Feeser, 76 Tex. 365, 13 S.W. 266 (1890). There is no showing of duress in the case at bar. Furthermore, we reject the plaintiff’s contention that a mistake of law will excuse it from the consequences of a voluntary payment without protest. Feeser, supra. Consequently, we hold that under the record here presented, plaintiff is not entitled to a refund for the ad valorem taxes paid by it in 1972, 1973 and 1974.

Plaintiff’s argument in support of its position is essentially that the 1977 amendment to article 7150f shows the Legislature’s original intent to exempt the properties described therein from taxation when it drafted and passed the statute in 1963. In effect, it says that the Fort Worth Court of Civil Appeals was wrong in its construction of the statute, and that this Court, because of the language which appears in the preamble to the 1977 amendatory act, is free to apply the law in the manner which the Legislature intended it to apply, which will authorize us to declare that the component parts were exempt from taxation for the years 1972-1975.

In disagreeing with the plaintiff, we adhere to the rule that a Legislature may not construe a former law so as to give such construction a retroactive operation. Such is an invasion of the province of the courts. Rowan Oil Co. v. Texas Employment Commission, 152 Tex. 607, 263 S.W.2d 140 (1953); Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061 (1894). In the case at bar, to interpret the old article 7150f according to the plaintiff’s views by using the wording of an amendment to that article drafted fourteen years after the original article was enacted would, in effect, sanction retroactive application of the amendment. It is, of course, well-established that an amendment is presumed to operate prospectively only. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.Sup.1966). Moreover, the old article 7150f has already been construed by a Court of Civil Appeals in the Victor Equipment case, and the judgment of that court was approved by the Supreme Court. We view the Supreme Court’s refusal of a writ for “no reversible error” as an approval of the lower court’s holding that only consigned property was exempt from taxation under article 7150f as it existed prior to the 1977 amendment.

The initial act, as it was first enacted in 1963, insofar as that act applies to this appeal, consists of a single sentence. That sentence is composed of three (3) clauses; the first and third clauses are expressly limited to consigned property; the second clause is not so limited. It is noted that, in the statute, words of specific meaning are followed by words of general meaning. The rule with respect thereto was announced in Farmers’ & Mechanics’ National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1123-24 (1911), as follows:

“It is a prime rule of construction that where in a statute general words follow a designation of particular subjects or classes of persons the meaning of the general words will be restricted by the particular designation in such statute. This is known as the rule of ejusdem generis, and is a rule of almost universal application . . . ”

We apply that rule to this case. The first clause of the statute speaks only of “property consigned to a consignee in this State from outside this State.” The second clause applies to “goods, wares and merchandise.” We hold that under the rule of ejusdem generis, the second clause is restricted to consigned goods as particularly set out in the first clause. See Ayala v. City of Corpus Christi, 507 S.W.2d 324 (Tex.Civ.App.—Corpus Christi 1974, no writ), and the authorities therein cited. Therefore, we construe article 7150f as exempting only property consigned to a consignee in this State from outside this State. Since plaintiff’s property involved is not consigned property, no exemption from taxation exists for the years 1972, 1973, 1974 and 1975.

In refusing to follow plaintiff’s argument, we note that our Supreme Court, in Rowan Oil Co. v. Texas Employment Commission, supra, in effect, said that one session of the Legislature does not have the power to “declare the intent of a past session.” Plaintiff’s point of error is overruled.

AFFIRMED.


author: RALEIGH BROWN, Justice.

text:
    CONTEMPORARY PROPERTIES, INC., Appellant, v. The CITY OF MESQUITE, Appellee.
    No. 5251.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 8, 1979.
    Rehearing Denied March 8, 1979.

      Walter W. Leonard, Pamass & Bond, Irving, for appellant.
    Elland Archer, City Atty., Mesquite, for appellee.
   RALEIGH BROWN, Justice.

This summary judgment case concerns the tolling of the statute of limitations by the “discovery rule.”

Contemporary Properties, Inc. sued the City of Mesquite for damages allegedly arising out of the “willful, wrongful, abusive corruption of office on the part of the defendant and its agents, servants and employees.” Summary judgment was granted on behalf of the City of Mesquite because Contemporary’s claim was barred by Article 5526, Tex.Rev.Civ.Stat.Ann. (1978). Contemporary Properties'appeals. We affirm.

On or about May 1, 1972, Contemporary Properties undertook to develop a townhouse project within the corporate limits of the City of Mesquite. Proper zoning for the project was approved and Contemporary applied for the necessary building permits applicable to the City of Mesquite’s rules and regulations.

Contemporary alleged that from the beginning of the project it encountered difficulties with the office of the building inspector of the City. It alleged that it was unable to obtain permission to proceed with construction until it had put in all streets, utilities, and subsurface drainage instead of surface drainage as was normally required. Contemporary further alleged that the City of Mesquite, acting through its office of building inspector, required it to use concrete in the streets rather than asphalt which had been customarily used for streets. Such requirements necessitated the expenditure of large sums of money before construction could be started. Because of the excessive demands, Contemporary alleged it was financially unable to continue construction of the project and abandoned it at a time when it had eighteen unfinished units under construction.

Contemporary contended that at the time of construction in 1972 the requirements imposed upon it were not imposed upon other builders, contractors, and developers; that the City, by requiring it to construct streets and utilities prior to construction, caused the utilities, streets and drainage work to become dedicated to the City of Mesquite upon abandonment. Such results allegedly constituted a taking of Contemporary’s property without just or due compensation. Furthermore, Contemporary alleged that the actions of the City constitute a unreasonable interference with its right to use and develop its property, all to its damage.

In its sole point of error, Contemporary urges that “the trial court erred in granting the motion for summary judgment because the City of Mesquite failed to establish as a matter of law that there were no material issues of fact.”

This action was filed on January 9, 1978. Contemporary’s allegation of injury occurred in 1972, at least five years prior to the filing of its cause of action. The City of Mesquite asserted that Contemporary’s cause of action was barred by limitations. Contemporary argued that its cause of action did not accrue until it actually discovered, or in the exercise of reasonable care should have discovered, the existence of the cause of action. In support of its position, Frank Meier, an officer of Contemporary, by affidavit said in part:

In February or March, 1976, I received information concerning acts and conduct of officials of The City of Mesquite which made the basis for the allegations contained in the Plaintiffs’ Original Petition. This was the first time I had ever been told that we had been treated differently by the City of Mesquite than other builders and other contractors had been treated. This was the first information of any kind that I have ever received. Subsequent to receiving such information, further investigations were made that lead up to and resulted in the filing of the present cause of action.

Considering the application of statutes of limitations and the “discovery rule,” the court in Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977) said:

For the purposes of application of statutes of limitations, a cause of action generally can be said to accrue at the time when facts come into existence which authorize a claimant to seek a judicial remedy. Williams v. Pure Oil Company, 124 Tex. 341, 78 S.W.2d 929 (1935). In personal injury actions, this means when the wrongful act effects an injury, regardless of when the claimant learned of such injury. An exception to this rule of accrual has been applied by this and many other courts in some situations in which a claimant was unable to know of his injury at the time of actual accrual; the exception is known as the “discovery rule.”
The result in “discovery rule” cases like Gaddis [Gaddis v. Smith, 417 S.W.2d 577 (Tex.)], Hays v. Hall [488 S.W.2d 412 (Tex.)] and Grady v. Faykus [530 S.W.2d 151 (Tex.Civ.App.)] stems from the recognition of the purposes of statute of limitations; and, at the same time, recognition of what is not the statutes’ purpose, but an unfortunate, occasional by-product. The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975); Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950). Statutes of limitations are not directed to the merits of any individual case, they are a result of the legislative assessment of the merits of cases in general. The fact that a meritorious claim might thereby be rendered nonassertible is an unfortunate, occasional by-product of the operation of limitations. All statutes of limitations provide some time period during which the cause of action is assertible. However, preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in mind. See Note, 30 Sw.L.J. 950 (1976).

The “discovery rule” has been applied in a limited fashion in Texas. It has been applied to toll limitations in medical malpractice cases. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967); Hays v. Hall, 488 S.W.2d 412 (Tex.1973). It has also been applied in fraud cases, Ellison v. McGlaun, 482 S.W.2d 304 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.), and in some limited defamation cases. Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976). We must decide whether it should be extended to the type of suit under consideration.

In making such a determination, the court in Southwest Bank & Trust Company v. Bankers Commercial Life Ins. Co., 563 S.W.2d 329 (Tex.Civ.App.—Dallas 1978, writ ref’d n. r. e.) said:

In deciding whether it should be so extended, we must apply the balancing test employed in Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977), and Gaddis v. Smith, supra. These cases balanced the underlying statutory policy of repose against the injustice created by barring the type of suit under consideration. In striking the balance, our supreme court has considered:
(1) The nature of the plaintiff’s case, and the type of evidence required to establish and defend the claim;
(2) The length of the limitations period in question, and the wrongful act’s susceptibility to discovery within that period; and
(3) The susceptibility of cases to fraudulent prosecution if limitation is tolled.

Assuming that Contemporary has alleged a valid cause of action against the City of Mesquite, we see no reason to extend the “discovery rule.” Contemporary has not alleged any act on the part of the City, its agents, servants or employees, which prevented it from discovering any alleged wrongful acts on their part. Nor has Contemporary alleged any allegations of fraud. The court in Hurbrough v. Cain, 571 S.W.2d 216 (Tex.Civ.App.—Tyler 1978, no writ) quoting 37 Tex.Jur. Limitations of Actions, sec. 79, p. 220, said:

Where plaintiffs’ pleading shows on its face that the suit was not filed within the statutory period, plaintiff is required “to allege such wrongful conduct,” as against the plea of limitation, as will entitle him to recover; and mere failure to disclose a cause of action, or mere concealment, is not fraudulent concealment. Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 696. It is incumbent upon plaintiffs to “either allege a fraudulent concealment” or facts which in law would take the cause of action out of the bar of the statute. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 723.” Shipp v. O’Dowd, supra [454 S.W.2d 845 (Tex.Civ.App.)].

On balance, we hold the “discovery rule” should not apply to toll the statute of limitations in the case at bar. See Minyard v. Southern Pipe & Supply Co., Inc., 563 S.W.2d 332 (Tex.Civ.App.—Dallas 1978, writ filed).

The court in Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975) said:

When summary judgment is sought on the basis that limitations have expired, it is the movant’s burden to conclusively establish the bar of limitations.

Our examination of the pleadings and the summary judgment proof establish that without the application of the “discovery rule,” the City of Mesquite has conclusively established that Contemporary is barred by limitations in its cause of action.

The judgment of the trial court is affirmed.