author: SALAZAR, Justice.

text:
    Walter W. WOLFORD, Administrator, Appellant, v. Walter W. WOLFORD, Individually, Appellee.
    No. B2153.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1979.
    Rehearing Denied Nov. 28, 1979.

      David W. Lueders, James L. Barr, Law Office of David E. Lueders, Houston, for appellant.
    Larry J. Doherty, Terry G. Collins, Do-herty, Vela, Poser, Sears & Collins, Houston, for appellee.
    Before COULSON, JUNELL and SALAZAR, JJ.
   SALAZAR, Justice.

Walter W. Wolford, temporary administrator of the Estate of Charles Darrell McMullen and defendant below, appeals from a judgment rendered in Probate Court No. 3 of Harris County, Texas, and attacks along with other points of error the jurisdiction of the said court to try a personal injury lawsuit.

On or about October 8, 1975, Walter W. Wolford was driving a motor vehiclte in Harris County, Texas, when he was allegedly struck in the rear by a vehicle driven by Charles D. McMullen. Charles D. McMullen subsequently died on or about April 17, 1976, from causes independent of the accident at issue here.

The plaintiff, Walter W. Wolford, had himself appointed temporary administrator of the Estate of Charles D. McMullen on January 4,1977. Said appointment was for the sole purpose of accepting service of citation. The application for the appointment of a temporary administrator for the purpose of service of citation recites that a policy of liability insurance protected any and all claims for personal injuries and property damage arising out of the negligence of Charles D. McMullen, the insured, in his operation of a motor vehicle; that the applicant, Walter W. Wolford, as a creditor of the estate, was entitled to be appointed as temporary administrator; and that Walter W. Wolford had a cause of action against the estate.

Walter W. Wolford, individually, then filed suit for personal injuries and property damage and applied to the probate court for acceptance of service of citation. Walter W. Wolford, as temporary administrator, was served on March 29, 1977. Plaintiff’s original petition sued for damages in the amount of $10,000.00. A jury trial in probate court was held; and in response to special issues Walter W. Wolford, individually, was awarded $2,156.00.

Walter W. Wolford, as temporary administrator, filed a plea to the jurisdiction of the probate court which was overruled. For the reasons that follow, we reverse the court below for lack of subject matter jurisdiction.

Tex.Prob.Code Ann. § 5(d) (Vernon Supp. 1978-79):

All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills. . .

It is apparent that the legislature intended to broaden and extend the jurisdiction of the probate court to permit such court to wholly and completely resolve all matters in one forum. Estate of Rosborough v. Daniels, 567 S.W.2d 823 (Tex.Civ.App.-Texarkana 1978, no writ); Potter v. Potter, 545 S.W.2d 43 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref’d n.r.e.).

Tex.Prob.Code Ann. § 5(d) (Vernon Supp.1978-79) providing that all courts exercising the original probate jurisdiction shall have the power to hear “all matters incident to an estate” applies only to those matters in which the controlling issue is the settlement, partition or distribution of an estate and means that the statutory probate court has exclusive jurisdiction only in those instances where a probate proceeding, such as an administration of an estate, is pending in the court at the time suit is filed. Bell v. Hinkle, 562 S.W.2d 35 (Tex.Civ.App.-Houston [14th Dist.] 1978, writ ref’d n.r.e.); Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App.-Tyler 1977, no writ). This court then must first consider whether in fact there was such an administration of the decedent’s estate on file and pending and whether such proceeding dealt with the controlling issues of settlement, partition and distribution of the decedent’s estate.

In a temporary administration of an estate of a decedent, a temporary administrator is appointed by the court, who sets about pursuant to the powers granted to marshall the assets and property of a decedent and to prepare an accounting. In the case before us, no such action was taken by the temporary administrator nor indeed was the temporary administrator empowered to take any further action other than the mere acceptance of service of citation.

The only matter “pending” in the probate court with respect to the estate of Charles D. McMullen was “An Application for the Appointment of a Temporary Administrator For The Purpose Of Service Of Citation" (Emphasis ours). Furthermore, the probate court appointed such person to “accept service of citation for this estate” and limited the action to be taken by the temporary administrator to the mere acceptance of service of citation for the estate. The fact that the temporary administrator filed an application to file his petition as a claimant, while it may pose a conflict of interest, did not in our view, expand or enlarge the limited purpose for which the temporary administration was sought and granted.

The facts in this case before us do not demonstrate one where an estate of a decedent was pending at the time the suit was filed, nor was the controlling issue of such case the settlement, partition or distribution of an estate. We accordingly hold the probate court was without jurisdiction to proceed with the personal injury lawsuit.

It is apparent that appellee would seem to be faced with a problem regarding the statute of limitations of his cause of action against the decedent’s estate. In that regard, we respectfully point out the provisions of Tex.Rev.Civ.Stat.Ann. art. 5539a (Vernon 1958).

ON MOTION FOR REHEARING

On rehearing, we hold that our original opinion in this appeal does not prohibit the appointment of a creditor or other interested party as temporary administrator of an estate of a decedent. The practical utility of such an appointment, we recognize, is of utmost importance where no other interested party comes forth to marshall the assets and make attempts to satisfy the debts, if any, of an estate.

In the instant case, the appointment of the creditor as temporary administrator for the purpose of acceptance of service of citation was the vehicle by which the same party in his capacity as creditor sought to extend the jurisdiction of the probate court to try a personal injury lawsuit. We accordingly hold that the probate court had no jurisdiction in this case.


source: Caselaw Access Project

author: WARD, Justice.

license: Public Domain

text:
    Joe B. BYRD, Appellant, v. Lewis Miller SMYTH, III, et al., Appellees.
    No. 6878.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 7, 1979.

      Sellers & Berg, P. C., Larry R. Jones, George V. Berg, Jr., Michael G. Tapp, Houston, for appellant.
    Clemens, Spencer, Welmaker & Finck, F. Nolan Welmaker, George H. Spencer, Jr., San Antonio, for appellees.
   OPINION

WARD, Justice.

The dispute in this case arose when a joint venture sold its assets and. made a distribution of shares. The issue on this appeal is the meaning to be given to a contract when it is stated that one member’s interest would be considered as “carried interest.” The trial Court, without the aid of a jury, determined that the one owning the carried interest, although not having had to advance certain expenses of the venture during its existence, would be burdened with his share of the expenses when the final distribution was made. Findings of fact and conclusions of law were filed. We affirm the judgment of the trial Court.

The J.S.H.F. Joint Venture was formed by the four Defendants to the present law suit, and the Venture then purchased a 5,000 acre tract of land in Kinney County. In May, 1975, the four owners of the Joint Venture entered into an agreement with Plaintiff, Joe B. Byrd, to settle an existing law suit involving the title to the land. The settlement required that the four members of the Joint Venture would each convey a 5% interest in the Joint Venture to Byrd so that each assignor and Byrd would thereafter own a 20% interest in the Joint Venture. Thereafter, an “Assignment of Interest in J.S.H.F. Joint Venture” dated June 24, 1975, was prepared and executed by the five parties to the present law suit. The assignment provided that the assignors assigned to Joe B. Byrd an undivided 20% interest in and to the Joint Venture, and a copy of the Joint Venture Agreement was attached to the assignment and made a part thereof for all purposes. The assignment further provided: “Each party Assignor therefor[e] assigns and intends to assign an undivided 5% to Assignee so that each Assignor hereafter will own a 20% interest in said Joint Venture and Assignee will own a 20% interest therein, pursuant to all of the terms and conditions of the Joint Venture Agreement, . . . ” The assignment terminated with the following paragraph:

However, it is understood and agreed by and between Assignors and Assignee herein that the assignments by Assignors of an undivided 5% each to Assignee shall be considered to be a carried interest, that is, Assignee shall not be expected to pay any portion of any payments required of the J.S.H.F. Joint Venture, unless it becomes necessary under the terms of the Joint Venture Agreement to purchase the interest of one or more Joint Venturers. In such case JOE B. BYRD shall have equal rights with the remaining Joint Venturers to purchase his proportionate share of the interest being disposed of by the withdrawing Joint Ven-turer.

When the Joint Venture was formed, it was contemplated that contributions by the members would be necessary to make principal and interest payments on the loan which was taken out to finance the purchase of the property, as well as to pay the taxes on the property. To provide for the contributions, the Joint Venture Agreement provided that the manager of the Joint Venture would estimate the cash requirements for a period of three months in advance and request payment of each Joint Venturer’s proportionate share of the estimated cash payments, and each Joint Ven-turer would pay said amount within ten days after receiving a statement therefor. The Agreement also provided that, upon termination of the Joint Venture for any reason, the assets of the Joint Venture would be sold and the proceeds would be applied first to the return to the Joint Ven-turers of any cash capital contributions made by them, and the remaining assets would be distributed to the persons who were then Joint Venturers under the agreement and in accordance with their percentages of ownership. This termination article also provided as follows:

As between the Joint Venturers, each shall be responsible for his proportionate part of all debts and liabilities applicable to properties distributed under this paragraph, and upon default in the payment of such debts and liabilities by any Joint Venturer, the remaining Joint Venturers who pay or discharge the same shall have, in addition to any other rights or remedies provided by law, an equitable lien upon all assets distributed to the defaulting Joint Venturer to secure the payment of the amounts so advanced.

In 1976, the Joint Venture sold all of the land at a profit, and, following the sale, an accountant prepared a statement showing the proceeds from the sale, the various debts and expenses burdening those proceeds, and the amount due each Joint Ven-turer from the sale. Consistent with that statement, payments were made to the four Defendants for payments made by them during the Joint Venture and then each Joint Venturer, including Byrd, was sent a check for $34,778.88. Byrd was dissatisfied with his share and brought the present suit for a greater amount, arguing that, since he was to have a “carried interest,” the legal expenses, taxes, principal and interest payments and closing costs accruing from the time of the creation of the Venture until its termination should not have been assessed against his share. By his calculations, this would increase the amount due him by some $42,000.00.

As stated, a take nothing judgment was entered against Byrd, the Court finding that the Plaintiff’s interest was expressly made subject to all the terms and conditions of the Joint Venture Agreement, except that the Plaintiff was not required to advance any portion of the expenses until the termination of the Agreement when his share would be assessed advances made on his behalf, and that during the operation of the Joint Venture Agreement, the four Defendants would advance the Plaintiff’s share of contributions but, upon termination and distribution, the share so advanced would be reimbursed to the persons advancing the same. The Court further found that “carried interest” meant that the Plaintiff would not have to advance sums of money but, upon distribution of 'the money upon the termination of the Joint Venture Agreement, reasonable and necessary sums advanced by or which were to be advanced by other parties to the Joint Venture would be reimbursed to those Joint Venturers prior to the distribution of the shares. The Court was of the opinion that the contract was unambiguous, but found in the alternative that, if the contract was ambiguous, parol evidence offered by the Defendants established the agreement of the parties to be that “carried interest” meant that the Plaintiff would not have to advance any sums of money while the Joint Venture was in existence but that, upon the final termination of the Joint Venture Agreement, the reasonable and necessary sums advanced or to be advanced by the other parties would be reimbursed to those Joint Venturers prior to the distribution of the shares.

The Appellant’s first point is that the trial Court erred as a matter of law in its construction or interpretation of the agreement, while his third and fourth points are that the trial Court erred in its alternative holding that the written agreement was ambiguous and in permitting the introduction of parol evidence to explain the meaning of “carried interest.” The Appellant argues that the wording in the assignment contract that his share was a “carried interest” and that he “shall not be expected to pay any portion of any payment required of the J.H.S.F. Joint Venture” for all time freed his share from the expenses incurred by the Joint Venture and that the termination article did not apply to his share.

We overrule these points as the trial Court could have received testimony on the meaning of “carried interest.” It is a technical term adopted from the oil industry and was used in a contract concerning a speculative real estate venture. The evidence offered was not parol evidence which tended to vary the terms of the written contract, but was explanatory of a technical term used in the assignment. This type of testimony has been consistently permitted. Sivert v. Continental Oil Company, 497 S.W.2d 482 at 489 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.); 2 McCormick & Ray, Texas Law of Evidence (2d ed.) sec. 1685. As used in the oil industry, the holder of a carried interest of a working interest has no personal obligation for operating costs while the co-owners who advance such costs are entitled to reimburse themselves first from future production. 38 Am.Jur.2d Gas and Oil sec. 179 at 660; Williams & Meyers, Oil and Gas Law, Manual of Terms, at 66. As the term was used here, it meant that the co-owners who advanced expenses were entitled to reimburse themselves first from the profits of the venture before equal distribution to all shareholders was made. This meaning was explained to the Appellant, and the testimony was that he was then in complete agreement. The trial Court adopted this explanation in its interpretation of the assignment and of the Joint Venture Agreement. We are in accord with that conclusion.

The Appellant’s second point is that the trial Court erred in not making certain amended findings of fact and conclusions of law as suggested by the Appellant. The Appellant delayed his request for nine days after the original findings of fact and conclusions of law had been filed, and the request was not timely. No error is presented and the point is overruled. Tex. R.Civ.P. 298.

The Appellant’s sixth point is that the trial Court erred in.holding that the Appellant was a Joint Venturer since the assignment was made subject to the terms and conditions of the Joint Venture and there was no showing that the parties ever consented to his being an actual partner or actual Joint Venturer. See Article 6132b sec. 18(l)(g), Tex.Rev.Civ.Stat.Ann. The assignment was signed by all five parties, and whether he actually became a member of the Joint Venture is not in issue. It would have no bearing on the amount of money that he was entitled to when the distribution was made upon termination. The point is overruled.

Whether we have mentioned them or not, we have considered all of the points presented and they are all overruled. The judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    Ex parte Gerald Elliott JACKSON, Relator.
    No. 6940.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 7, 1979.

      Carl Steckelberg, Midland, for relator.
    William B. Smith, Midland, for respondent.
   OPINION

OSBORN, Justice.

Relator, in this original habeas corpus proceeding, seeks his discharge from the custody of the Sheriff of Midland County. We granted the motion for leave to file the application for writ of habeas corpus and ordered his release upon the posting of a bond.

On June 4, 1979, a nunc pro tunc decree of divorce was signed by the presiding judge in the 318th Judicial District Court dissolving the marriage between Wilema Jean Jackson and Gerald Elliott Jackson. The judgment of the Court provided in part as follows:

The Court orders that in order to balance the equities, Respondent, Gerald Elliott Jackson, is ordered to pay to Petitioner, Wilema Jean Jackson, also known as Wilema Jean Garlow, $5,000.00 for the past community debts that Petitioner has paid, as well as, for other community, debts that Petitioner is to pay. Respondent is ordered to pay the $5,000.00 to Petitioner in the amount of $200.00 per month with the first payment being due in June, 1979, and the next payment being due on or before the first of each month thereafter beginning with July 1, 1979, until such $5,000.00 is totally paid.

Relator has not complied with the above provision of the Court’s judgment for monthly payments to his former wife, and on September 24, 1979, the presiding judge of the 318th District Court entered an Order of Contempt finding that Relator has not paid any of the amount he was ordered to pay, that he is $800.00 behind on such payments, and that he “is in contempt of this Court for violating the Judgment Nunc Pro Tunc First Corrected Decree of Divorce by failing to pay $800.00 as [he] was ordered to pay.” The Court further ordered that he be incarcerated in the Midland County jail for a period of ten days, and that he could purge himself by making the payment of $800.00, plus the sum of $300.00 as attorney fees and costs of suit. At the contempt hearing, the Relator testified as follows:

Q Mr. Jackson, at the time of the divorce, approximately how much cash did you have on your persons?
A Between sixty-five and seventy-five dollars, I don’t recall the exact amount.
Q How much cash or cash equivalent would you say you have now?
A Around forty-six dollars.

An order of confinement for failure to pay a debt violates Article I, Section 18, of the Texas Constitution, is void, and may be attacked in a habeas corpus proceeding. A judgment which provides for the payment of money to be earned in the future, rather than directing the payment of money found by the court to be in existence, is not enforceable by an order of contempt. Ex parte Yates, 387 S.W.2d 377 (Tex.1965). The rationale of that case has been followed in subsequent decisions which passed upon this same issue. Ex parte Choate, 582 S.W.2d 625 (Tex.Civ.App.—Beaumont 1979); Ex parte Duncan, 462 S.W.2d 336 (Tex.Civ.App.—Houston [1st Dist.] 1970); Ex parte Neff, 542 S.W.2d 268 (Tex.Civ.App.—Fort Worth 1976); Green-hill and Beirne, “Habeas Corpus Proceedings in the Supreme Court of Texas,” 1 St. Mary’s L.J. 1 at 912 (1969). The controlling factor in the Yates decision was the fact that Mr. Yates was required to pay money that he had not yet earned. Ex parte Juan J. Gorena, 23 Tex.Sup.Ct.J. 32 (Oct. 20, 1979). That is likewise the controlling factor in this case.

The holding in Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961), is not applicable in this case. In the Preston case, the trial court found Preston had the sum of $21,000.00 in his possession and ordered that money in his possession and control be paid into the registry of the court in order to permit the court to carry out its duty in making a division thereof between the parties. In our case, the Court obviously intended that the monthly payments would be made out of future income. Although the provision in the divorce decree was a valid one, it was not a provision that could be enforced by contempt. The Court’s Order of Contempt in this case results in imprisonment for failure to pay a debt and is a void order.

The Relator is ordered discharged.


author: JUNELL, Justice.

text:
    Barry Edward BOENKER et ux., et al., Appellants, v. AMERICAN TITLE COMPANY, Appellee.
    No. B2161.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 7, 1979.
    Kenneth C. Kaye, League City, C. H. Duvall, Roma, for appellants.
    William C. Ferebee, Ervin A. Apffel, Jr., McLeod, Alexander, Powel & Apffel, Galveston, for appellee.
    Before COULSON, JUNELL and SALAZAR, JJ.
   JUNELL, Justice.

Appellants, Barry Edward Boenker and wife Annita Marie Boenker (hereinafter Boenker), purchasers, sued appellee, American Title Company, in County Court No. 2 of Galveston County, seeking damages for wrongful failure to close a real estate transaction.

Appellant Jimmie Haley, the seller, filed a separate suit against American Title Company, seeking damages resulting from reliance on material misrepresentations allegedly made by Linda Dunn, the title company closer, in connection with the same real estate transaction made the basis of the Boenker suit. On motion of American Title Company the two suits were consolidated. The two petitions remained separate pleadings and alleged different causes of action. However, both Boenker and Haley seek damages as a result of Haley’s allowing Boenker to move into the house prior to the closing of the transaction.

American Title Company’s motion for summary judgment was based on the grounds that 1) the purchase money loan was never funded by the lender, 2) all parties had actual knowledge at the November 9, 1977 scheduled closing that the lender had refused authority to fund the loan and 3) the earnest money contract between the parties expressly provided that possession by the buyer before loan funding established a landlord-tenant at sufferance relationship between the parties. American Title Company contended in its motion for summary judgment and again contends here that the above stated facts entitle it to judgment as a matter of law as against both Boenker and Haley.

The trial court sustained American Title Company’s motion for summary judgment and entered judgment denying appellants any recovery. From that decision appellants prosecute this appeal.

The following facts are undisputed. In a written earnest money contract Haley agreed to sell and Boenker agreed to buy the subject property, a house and lot in Clear Lake Shores in Galveston County. Boenker deposited with POZ Realty, the real estate agent, the sum of $100.00 earnest money, as called for by the contract. A copy of the earnest money contract was delivered to American Title Company with the request that that company handle the closing and issue a title insurance policy. The closing was scheduled for November 9, 1977, and was to be completed by “table funding,” meaning the seller was to be paid at closing. On November 9, 1977, before the parties went to the office of American Title Company for the closing, Haley began moving her things out of the house and Boenker began moving a few items in. At the closing Haley signed the deed and Boenker signed the note and deed of trust in favor of Regional Investment of Texas, Boenker’s mortgage lender. After all the papers were signed, the closer for the title company telephoned the mortgage company to secure authority to fund the loan. The mortgage company refused authority to fund the loan because of some unspecified problem they needed to work out with the Veterans Administration, which was to guarantee the loan. The title company closer was told that the mortgage company would call the title company when funds could be released. The closer reported this development to the parties, who were still in the title company office at that time.

After the parties left the title company office on November 9, 1977, Haley finished moving out of the house and Boenker finished moving in. Thereafter, when it became obvious that the sale could not be consummated, the parties entered into a short term lease and cancelled the earnest money contract.

In addition to the facts above recited Boenker’s petition contains allegations that at the scheduled closing the title company closer notified Boenker and Haley that there were defects in the title and, therefore, the money involved in the transaction could not be disbursed.

Affidavits of Mr. and Mrs. Boenker were filed in opposition to the title company’s motion for summary judgment. In those affidavits Mr. and Mrs. Boenker stated that at. the closing, after the Boenkers had signed all the papers, they asked Ms. Dunn, the closer, if they could now move into the house. They allege that Ms. Dunn told them that they could and that they did.

Even if we assume, as we must in passing on the propriety of the summary judgment against Boenker, that Ms. Dunn made the alleged statements at the title company closing, we hold that as a matter of law the Boenkers had no cause of action against American Title Company under their pleadings and all of the summary judgment proof.

While the contract provided for the delivery of possession at closing, it further provided that any possession by buyer prior to loan funding shall establish a landlord-tenant at sufferance relationship between the parties. The contract also provided for the issuance of a title insurance policy guaranteeing the buyer’s title to be good and indefeasible.

The title company had no obligation to close the transaction if it was not prepared to issue such a title policy. The duty of a title company was explained recently in the case of Tamburine v. Center Sav. Ass’n, 583 S.W.2d 942 (Tex.Civ.App.-Tyler 1979, no writ). The court in that case held that the title company does not act as an agent of either the purchaser or the seller in supervising the transfer of property, but acts exclusively for its own benefit and protection in assessing the risk it will assume upon the issuance of title insurance. It is without dispute that the seller, Haley, did not have good and indefeasible title and that the transaction was never closed by the title company because of defects in the title and because the lender never authorized loan funding. Under these facts the title company was under no duty to close and fund the transaction. Appellant Boenker has sued solely on the “failure to close a transaction” ground. The Boenkers pleaded for the return of the note and deed of trust signed by them and the return of $100.00 earnest money. Their own pleadings indicate that the earnest money was not deposited with the title company, but with the real estate agent, and the record reveals no proof that the appellee ever acted as escrow agent for those funds. The summary judgment proof of the appellee corroborates the Boenker’s pleadings that no money was ever disbursed on the loan, thus no liability on the note ever attached, and the Boenkers incurred no legal obligation to repay. The trial court was correct in granting appellee American Title’s motion for summary judgment against Boenker and Haley on the action for failure to close a real estate transaction because there were no genuine issues of material fact. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). Appellee was entitled to judgment as a matter of law on that issue, and that portion of the trial court’s judgment is affirmed.

The Haley petition and affidavit in opposition to American Title Company’s motion for summary judgment present a different matter. In her affidavit Haley makes the following statements:

[ajbout a week before November 9,1977, Linda Dunn, at American Title Company called me and said that the Boenker’s loan had been funded; that closing would be in American Title Company’s office in Webster, Texas on November 9, 1977; and that I would be paid at that time.
[After everything was signed at the closing] Ms. Dunn called someone about my check and then told us that there was some problem and that the Boenker’s loan was not yet funded. She then told me to come back the next day and they would have my money then. I went back to American Title Company’s office the next day. Ms. Dunn then told me that there was still some small problem and that I should come back the next day and she would have my money for sure. I came back the next day and again Ms. Dunn said she could not pay me and that they would call when they were able to pay.
In the meantime on the morning of November 9, 1977, Mr. and Mrs. Boenker began to move a few items into the house and my two sons began to move our things out. We were doing this because Ms. Dunn had told me that everything was in order to close, that the Boenker’s loan had been funded and that I would be paid that day. The Boenkers wanted immediate possession so we had to start moving early on the morning of November 9, 1977. After we signed all of the papers in the Title Company’s office that same morning, we were told that the Boenker’s loan had not yet been funded but I was also told to come back the next day and I would be paid. Since I had signed the deed over to Mr. and Mrs. Boenker and it was dated that day and they had signed all of their required papers, and since I was told that I would be paid the next day, my sons and I moved all of our things out of the house and turned full possession over to Mr. and Mrs. Boenker.

Haley’s petition contained allegations similar to the statement contained in her affidavit. These allegations state a cause of action in tort for damages for fraud. The affidavit of Mrs. Haley supports the allegations contained in her petition.

The supreme court in the case of Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183 (Tex.1977), recognized that a title insurance company could be held liable for fraudulent statements made by its agents. In that case the false statements touched the issue of the presence or absence of encumbrances on the subject property.

The court held that knowingly or negligently made false assurances by the title company agent that the property was not subject to any easements could give rise to a cause of action in fraud against the company if detrimentally relied upon. The court made a clear distinction between any action on the title policy and an action in tort for fraudulent assurances. That is precisely the distinction required in the present case. While no liability attached for the title company’s failure to close the transaction, appellant Haley has pleaded and supplied summary judgment proof to give rise to an action in tort against appellee American Title. The appellee’s motion for summary judgment is not directed at that cause of action, nor could it be, for there clearly are fact issues to be determined in connection therewith which mandate a remand for trial on the merits. Gibbs, supra.

Summary judgment against Haley and Boenker affirmed on the action for failure to close a real estate transaction.

Summary judgment against Haley reversed and remanded on the cause of action for fraud.


author: PAUL PRESSLER, Justice.

text:
    James H. WILKERSON, Appellant, v. PIC REALTY CORPORATION, Appellee.
    No. A2140.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 7, 1979.

      Sam Dawkins, Jr., Eastham & Meyer, Houston, for appellant.
    Brian L. Jensen, Tekell, Book & Matthews, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from an award of money under the escalation clause of a written lease.

During the summer of 1972, appellant leased office space on the sixth floor of a building currently owned by appellee and managed by Property Management Systems Company. The lease terminated July 81, 1974. Appellant testified that prior to renewing the lease, he was requested by Bill Dawson, the building manager at that time, to move to the fourth floor in order to make more space available on the sixth floor for another tenant of the building. Appellant alleged that Dawson, acting as the agent for the building owner, agreed to compensate appellant for his moving expenses and for improvements he had previously made to the premises he was vacating. James Bailey, an accountant for appellant who handled the negotiations concerning the move and new lease agreement, testified that he and Dawson agreed that appellant would be allowed $5,800 for the improvements and moving expenses. He further testified that Dawson agreed to reimburse appellant for this amount by spreading it “over the life of the new lease to be executed if we moved.” Appellee’s objection to this testimony by Bailey was sustained (though not stricken from the record) and he was prohibited from testifying as to the details of the agreement. The record does not reflect whether this agreement was consummated.

After the move and execution of a new lease, appellant determined that he needed some new partitions and requested Dawson to give him a cost estimate. Dawson did so and appellant requested that he proceed with the construction. When it was finished, Dawson submitted a bill for approximately twice the estimated amount. Appellant informed Dawson that he intended to pay only the amount of the original estimate. Appellant testified that in the same conversation Dawson told him that “he would be sure we didn’t have any problems on the parking and he would make sure we did not have any problems on the building escalation clause” if appellant paid . the full amount of the improvements. The objection to the foregoing was overruled. Appellant then testified that Dawson specifically stated that he would continue billing appellant for only three parking spaces although he was occupying twelve to fifteen. He also claimed that Dawson said that his rent would “always stay the same.” Appellee then objected to this testimony on the basis that it violated the parol evidence rule. The objection was sustained and the statements were stricken by the court.

Appellant raises four points of error. However, we will limit our consideration to his second point as we find it determinative of the outcome of this appeal. Appellant contends that the trial court erred in striking the testimony of appellant, referred to above, regarding the agreement made with appellee concerning rental escalation. Appellant alleges that this testimony did not violate the parol evidence rule because it was made subsequent to the consummation of the written lease. We agree. The Supreme Court set down the rule in Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255, 258 (1955) where it said, “The parol evidence rule excludes only prior and contemporaneous negotiations. It does not apply to subsequent agreements entered into by the parties.” We expressly followed that rule in Mortgage Company of America v. McCord, 466 S.W.2d 868 (Tex.Civ.App.-Houston [14th Dist.] 1971, writ ref’d n. r. e.).

In oral argument, appellee stated that it recognized that the parol evidence rule was not a proper basis for its objection. However, it contends that the Statute of Frauds could have been asserted as a proper grounds for the objection in question. Ap-pellee assumes that appellant could not have obviated the objection if it had been raised on those grounds. Therefore, appel-lee contends it should be entitled on appeal to change the grounds of its objection and, thereby, have the objection to and exclusion of appellant’s testimony upheld. Appellee cites Rhodes v. Meloy, 289 S.W. 159 (Tex. Civ.App.-Eastland 1926, writ dism’d) as authority for this proposition. We are unpersuaded by appellee’s contention for two reasons. First, appellee's application of the holding in Rhodes v. Meloy, supra has not been adopted by any court in this state, nor does it seem to constitute a sound legal proposition. As stated in City of Wichita Falls v. Jones, 456 S.W.2d 148 (Tex.Civ. App.-Fort Worth 1970, no writ), “The rule is well established that objections to evidence that are different from those urged in the trial court will not be considered on appeal. For a large number of cases holding this to be the law see 3 Tex. Dig., Appeal and Error, Key # 232(2), page 386.” In its brief appellee urges us to make the following exception to this basic rule: “ . . . if the valid but unasserted ground for objection could not have been opposed at the trial court then it may be asserted for the first time on appeal.” (ap-pellee’s brief, page 13.) We do not approve such an exception. It is clear under Texas law that if an objection is overruled by the trial court, the party objecting will not be permitted to assert a new objection on appeal, regardless of whether the objecting party believes the new objection could have been obviated by the other party at the time of trial. The rationale for this rule was recently restated in University of Texas System v. Haywood, 546 S.W.2d 147 (Tex.Civ.App.-Austin 1977, no writ) where the court said, “The purpose of requiring a specific objection is, of course, to enable the trial court to understand the precise question and to make an intelligent ruling and to afford the offering party an opportunity remedy the defect if possible. 1 McCormick and Ray, Texas Law of Evidence, § 24 (2nd ed. 1956).” Neither of these purposes would be served by permitting the objecting party to substitute an allegedly correct specific objection on appeal given that the incorrect specific objection asserted at trial was sustained. In addition, the determination of whether the new objection could have been obviated at trial is one which should be made in the trial court.

The second reason appellee cannot be permitted to substitute the Statute of Frauds as the grounds for its objection is that to do so would run afoul of Rule 94 of the Texas Rules of Civil Procedure. Rule 94 requires that the Statute of Frauds, when used as an avoidance or affirmative defense, must be pled. In the case of First National Bank in Dallas v. Zimmerman, 442 S.W.2d 674 (Tex.1969) the Supreme Court was faced with a similar situation where the defendants in the case attempted to interject the Statute of Frauds into the case by way of objection. The court said:

Although the defendants did not plead the Statute of Frauds in accordance with the mandatory directive of Rule 94, they contend that they nevertheless preserved the right to assert the defense by objection to the admission into evidence of the contract on the basis that its enforcement would violate the Statute of Frauds.
Prior to the adoption in 1941 of our present Rules of Civil Procedure, the defendants’ position would have been sound. The defense could be interposed by an objection to the evidence. League v. Davis, 53 Tex. 9 (1880); Cude v. Vaughn, 111 S.W.2d 1155 (Tex.Civ.App.1937, no writ); International Harvester Co. v. Campbell, 43 Tex.Civ.App. 421, 96 S.W. 93 (1906, no writ). But the adoption of Rule 94 was intended to change the old practice. Shortly after it was adopted, the court in Reid v. Associated Employers Lloyds, 164 S.W.2d 584, 585 (Tex.Civ.App. 1942, writ ref’d), stated that the purpose of Rule 94 as follows:
“That purpose is to require the defendant to announce in his pleadings what his defense will be, if it includes any of the matters referred to in the Rule, and to give plaintiff the opportunity of knowing what character of proof he may need to meet the defenses pleaded.”

Thus, appellee could not rely upon the Statute of Frauds under these circumstances.

Appellant’s second point of error is upheld and the cause is reversed and remanded.


author: MILLER, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
    No. A2192.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 7, 1979.
    Rehearing Denied Dec. 5, 1979.

      Sharon S. Woolf, Boswell, O’Toole, Davis & Pickering, Houston, for appellant.
    Arno W. Krebs, Jr., Fulbright & Jawor-ski, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and JUNELL, JJ.
   MILLER, Justice.

This declaratory judgment case was brought to determine the amount of the respective liabilities of two insurance companies for losses incurred as a result of an automobile accident. Each has an obligation to participate in the final settlement, the issue being in what order and what proportion.

The accident occurred on June 18, 1969, when Elizabeth Lee Hillyer, a passenger in a jeep driven by Steve Kennedy and owned by Henry J. N. Taub, was injured. Her personal injury suit was subsequently settled for $250,000.00.

Kennedy was insured by Liberty Mutual Insurance Company, with policy limits of $100,000.00 per person per accident. Taub was insured by American General Insurance Company with a family automobile policy with primary limits of $100,000.00, and by United States Fire Insurance Company with a professional comprehensive personal catastrophe liability policy, commonly referred to as an umbrella policy, with limits of $1,000,000.00 in excess of the insured’s “retained limit”.

The settlement by agreement of all parties was paid in the following order: American General paid its policy limits for a one-person accident of $100,000.00; Liberty Mutual paid its policy limits of $100,000.00; and United States Fire paid the remaining $50,000.00. Liberty Mutual and United States Fire, however, expressly agreed to seek a judicial determination of coverage and order of coverages as between the two of them.

The case, tried to the lower court on stipulated facts, resulted in a judgment that appellant, Liberty Mutual, recover nothing. It is before us now on appeal. We affirm.

Liberty Mutual’s policy, although providing Kennedy primary coverage for bodily injuries, contained the following clause:

Other Insurance: If the insured has other insurance against a loss covered by Part I of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance. (Emphasis added).

U. S. Fire’s policy contained the following provisions:

I COVERAGE—
The company agrees to indemnify the insured for ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay: (a) Personal Liability. As damages because of personal injury or property damages;
******
III LIMIT OF LIABILITY — Retained Limit—
The company’s liability shall be only for the ultimate net loss in excess of the insured’s retained limit defined as the greater of:
(a) the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of any other underlying insurance collectible by the insured; or
(b) an amount as stated in Item 4(B) of the Declarations as the result of any one occurrence not covered by the policies so listed or insurance;
and then up to an amount not exceeding the amount as stated in Item 4(A) of the Declarations as the result of any one occurrence. (Emphasis added).
******
F. Other Insurance. If other collectible insurance with any other insurer is available to the insured covering a loss also covered hereunder (except insurance purchased to apply in excess of the sum of the retained limit and the limit of liability hereunder), the insurance hereunder shall be in excess of, and not contribute with, such other insurance. (Emphasis added).

Schedule A — Schedule of Underlying Policies of United States Fire’s policy lists an automobile policy with a one-person bodily injury limit of $100,000.00.

Appellant has preserved three points of error, all of which are based on the contention that the “other insurance” clauses of the two policies are mutually repugnant. If so, appellant contends that its policy should be so construed as to provide a concurrent second layer of insurance with appellee’s policy in a prorata amount based upon the respective maximum policy limits.

In support of its position Liberty Mutual relies heavily on Hardware Dealers Mutual Fire Ins. Co. v. Farmers Ins. Exchange, 444 S.W.2d 583 (Tex.1969), wherein our Supreme Court held that two similar “other insurance” clauses were repugnant to each other, ignored both clauses, and held that, inasmuch as the two policies provided for the same limits of liability they should share equally in the loss.

Appellant’s confidence in the Hardware case, however, is misplaced. There, the carriers were both primary insurers, and the Hardware policy contained an escape or non-liability clause, which specifically made the “other insurance” clause applicable to excess insurance. In the instant case there is an umbrella and a primary automobile policy, and neither policy contains an escape clause.

Where there is apparent conflict between clauses of applicable insurance policies, courts should look to the overall pattern of insurance coverage to resolve disputes among the carriers. Berkeley v. Fireman’s Fund Ins. Co., 407 F.Supp. 960 (W.D. Wash.1975).

It is true that each of the policies has an “other insurance” clause that apparently limits coverage in the fortuitous circumstance of the presence of other validly subsisting coverage, but an examination of the purpose of the policies dictates the resolution of this dispute. Liberty Mutual’s policy generally affords primary coverage; its coverage becomes excess only because of the presence of a non-owned vehicle. United States Fire’s policy remains excess in all events. Thus it is apparent that the intent of all parties to the policies is for United States Fire’s policy to remain an umbrella policy, and Liberty Mutual’s coverage to underlie it. Allstate Ins. Co. v. Employers Liability Assur. Corp., 445 F.2d 1278 (5th Cir. 1971). Had Liberty Mutual issued its policy as it did, and United States Fire had issued its policy to Kennedy instead of to Taub, there would be no question that Liberty would be liable to the full extent of its policy limits.

We hold that the trial court is correct in its decision that Liberty Mutual is required to pay the full limits of its coverage prior to United States Fire’s obligation to assume any of the loss.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Beatrice H. FORD, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. A2182.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 7, 1979.
    Rehearing Denied Nov. 28, 1979.
    Barry Boorstein, Law Office of Adolph Uzick, Houston, for appellant.
    Joe Resweber, County Atty., William R. Bruyere, Asst. County Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and JUNELL, JJ.
   J. CURTISS BROWN, Chief Justice.

In a trial de novo in a county court at law, appellant’s driver’s license and automobile registration were suspended. Appellant appeals solely on the basis of the amount of security to be posted.

On April 30, 1978, an automobile driven by appellant, Beatrice Holmes Ford, was involved in an accident with an automobile driven by John S. Frazier. Pursuant to Article 6701h, Tex.Rev.Civ.Stat.Ann. (1977), the Texas Department of Public Safety (ap-pellee) made an administrative determination that there was a reasonable probability of a judgment being rendered against appellant as a result of the accident. Based on this determination, the Department suspended appellant’s driver’s license and automobile registration. Ford sought and obtained a trial de novo in a county court at law.

Appellee presented evidence that appellant’s car struck Frazier’s car on the left hand side from behind and knocked it into a utility pole. Mr. Frazier and Mrs. Frazier, who was riding in the car at the time of the accident, both sustained personal injuries and their car was severely damaged.

The court found that there was a reasonable probability of a judgment being entered against appellant as a result of the accident and that security in the amount of $25,000.00 would be sufficient to satisfy any judgment for damages resulting from the accident. Based on these findings, the court ordered the suspension of appellant’s driver’s license and automobile registration unless and until appellant deposited the security and filed proof of financial security with the Department of Public Safety.

In her first three points of error, appellant mainly contends that the court erred in allowing the testimony of Mr. and Mrs. Frazier regarding their physical condition and injuries because they are not expert witnesses. If this testimony were not allowed, appellant claimed, then there would not be sufficient proof to require $25,000.00 as security for the damages suffered by the other parties to the accident.

Article 6701h provides that if the owner of an automobile is involved in an accident in which personal injuries or property damages of at least $250.00 have resulted, and if there is a reasonable probability of a judgment being rendered against the person because of the accident, then the Department of Public Safety may suspend the driver’s license and automobile registration of that person.

A determination of the amount of security is directly related to the damages suffered by the other parties to the accident. Berryman v. Texas Department of Public Safety, 555 S.W.2d 539 (Tex.Civ. App.-Corpus Christi 1977, no writ). However, cases under this statute are not tried like the ordinary civil suit for damages. The Department need only show that there is a reasonable probability of a judgment being rendered against appellant and that the amount posted as security would probably be recovered in such a judgment.

It is a well established rule that expert testimony is not required to show the value of personal injuries. Texas Motor Coaches v. McKinney, 186 S.W.2d 714 (Tex. Civ.App.-Dallas 1945, no writ). An injured person may testify as to his own injuries and such testimony may be given probative effect by the trier of fact. Coca Cola Bottling Co. of Fort Worth v. McAlister, 256 S.W.2d 654 (Tex.Civ.App.-Fort Worth 1953, no writ). Mr. Frazier testified that he did sustain injuries because of the accident. His wife, who was nine months pregnant at the time, also suffered personal injuries and was in intensive care for about a month. Appellant’s first three points of error are thus overruled.

Appellant also urges that the trial court erred in allowing Mr. Frazier to testify as to the amount of damage sustained by his vehicle as a result of the accident. The supreme court has held that “the general rule for measuring damages to personal property is the difference in the market value immediately before and immediately after the injury to such property at the place where the damage was occasioned.” Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950). Furthermore, the owner of an automobile may testify as to his opinion of the value of that car even though he may not be an expert in that field generally. Classified Parking System v. Kirby, 507 S.W.2d 586 (Tex.Civ.App.-Houston [14th Dist.] 1974, no writ). Mr. Frazier testified that his car was worth about $4,000.00 before the accident and that it had no value after the accident. The Fraziers’ testimony regarding their personal injuries and the damages to their vehicle is acceptable and may be used in computing the amount of security to be deposited by the uninsured motorist. Damages in cases under Article 6701h need not be proven to the same extent as in a usual civil case for damages. We have considered all of appellant’s other points of error and they are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: HUGHES, Justice.

text:
    Virgil SWAIM et ux., Appellants, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.
    No. 18180.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 8, 1979.
    Rehearing Denied Dec. 27, 1979.
    McMillan & Lewellen, and Garry Lewel-len, Stephenville, for appellants.
    Cantey, Hanger, Gooch, Munn & Collins and S. G. Johndroe III, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Virgil Swaim and wife, Bertha Bee, plaintiffs in trial court, have appealed a summary judgment granted Texas Electric Service Company. Their suit was a bill of review action to set aside the judgment in a condemnation suit involving the same parties.

We affirm.

The Swaims’ complaint in this appeal is that the trial court did not deny TESCO’s summary judgment motion in the face of Swaims’ pleadings and affidavits which allegedly stated, as a matter of law, a cause of action against TESCO. They allege that, at the hearing before the special commissioners (in condemnation), an employee of TESCO told Swaim and the commissioners that the railroad easement being condemned would not be fenced. This would allow Swaims greater access to all their land. Also alleged was that Swaims would be able to use the TESCO spur for commercial development.

Swaims said they did not object to the commissioners’ award within the 20 days allowed by statute because of such representations. On the 21st day TESCO commenced fencing and Swaims objected strongly. TESCO obtained a writ of possession on May 6, 1975. Swaims filed the bill of review July 10, 1975.

The award appealed recited in part:

[W]ith the right in petitioner to prevent the construction of any buildings or other structures other than fences on such strip and to remove and thereafter prevent the growth of trees, limbs or branches, on or overhanging such strip of land hereinabove specifically described, together with the right of ingress and egress over and across the above described strip of land for the purpose of constructing, maintaining, operating and reconstructing said railroad together with the rights to fence and enclose such strip.” (Emphasis ours.) TESCO’s statement for condemnation recited:
“Your petitioner represents that it is necessary for the construction, location, maintenance and operation of said railroad that your petitioner acquire, take, hold, use and enjoy an easement of right-of-way across the above-described strip of land, together with the rights of ingress and egress over, along and upon said strip of land for the purpose of a right-of-way for said railroad as located, together with the right to fence, together with the right to construct, reconstruct, maintain and operate the apparatuses, supporting structures, roadbed, devices and arrangements necessary or proper to construct, maintain, operate, repair and rebuild the same.” (Emphasis ours.)

Bills of review in a condemnation case have three basic elements: 1. Party seeking had a meritorious defense; 2. which it was prevented from making by fraud, accident or wrongful act of the opposite party; 3. unmixed with any fault or negligence on their own. Pentikis v. Texas Electric Service Co., 470 S.W.2d 387, 389 (Tex. Civ.App.— Fort Worth 1971, writ ref’d n. r. e.). In Pentikis this court held that “A defendant moving for a summary judgment in order to prevail assumes the negative burden of showing as a matter of law that the plaintiff has no cause of action against him.” Also see Neigut v. McFadden, 257 S.W.2d 864 (Tex.Civ.App.—El Paso 1953, writ ref’d n. r. e.)

A party to a suit is charged by law with notice of all orders and judgments rendered therein. Banks v. Crawford, 330 S.W.2d 243 (Tex.Civ.App.—Houston 1959, writ ref. n. r. e.) Therefore the Swaims were charged with notice of the terms concerning fencing, both in the pleadings and in the order of the commission which became the judgment of the trial court in this case. Even if Swaims were prevented by fraud of TESCO’s employee from asserting their claimed defense on fencing, the record shows that TESCO did nothing to prevent them from filing a timely appeal. Harrell v. City of Denton, 116 S.W.2d 423 (Tex.Civ. App.—Fort Worth 1938, no writ). The Harrell case, in our view, has a fact situation very much like the one at hand — the verbal promise in Harrell being that con-demnor might change its mind about wanting the property — the promise here being that TESCO would not enforce its fencing rights. Harrell has been cited with approval in Dickey v. City of Houston, 501 S.W.2d 293, 294 (Tex.1973) in which the Supreme Court wrote:

“They were chargeable with notice that it was the duty of the commissioners to make an award and return it as provided by law, and that the judge would cause it to be entered in the minutes as the judgment of the court unless timely objections were filed.”

Even if false promises had been made, as alleged by the Swaims, it has been held that condemnor’s “promissory statements or declarations of future intentions” do not matter. What does matter is what is said in the statement of condemnation and the commissioner’s award. White v. Natural Gas Pipeline Company of America, 444 S.W.2d 298 (Tex.1969).

Also, where a judgment is clear and unambiguous, as we hold it to be here, it “is not subject to impeachment or collateral attack by the tendered proof of the stance of the parties before the special commissioners or of other collateral matters.” Brunson v. State, 418 S.W.2d 504 (Tex. 1967). (Emphasis ours.)

We overrule both points of error.

Affirmed.


text:
    SUBURBAN PROPANE GAS CORPORATION and Delta Drilling Company, Appellants, v. Joe W. McMULLAN et al., Appellees.
    No. 6917.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 14, 1979.
    Rehearing Denied Dec. 19, 1979.

      R. Kennedy Bridwell, Scott Tanne, Suburban Propane Gas Corp., Morristown, N.J., Kliewer & Hood, Edward Kliewer, Jr., Stephen R. Anderton, Sam L. Moffett, Dallas, for appellants.
    G. Dixon Mahon, Inc., William S. Mason, Ozona, Cox & Smith, Inc., Eugene B. La-bay, Walter J. Batía, San Antonio, for ap-pellees.
   OPINION

OSBORN, Justice.

Suburban Propane Gas Corporation and Delta Drilling Company appeal from an order overruling their pleas of privilege to be sued in Travis and Smith Counties. We affirm.

This suit was filed by royalty owners to recover damages, obtain an accounting, and for a declaratory judgment with regard to an obligation to reasonably develop four Oil & Gas Leases covering lands in Crockett County, Texas, the county in which suit was filed. After the filing of the pleas of privilege, Appellees filed controverting pleas asserting venue in Crockett County under subdivisions 5(a), 14, 23, 27 and 29 of Article 1995, Tex.Rev.Civ.Stat.Ann.

We believe this case may be decided under the provisions of subdivision 5(a) which state in part:

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

In their original petition, the Appellees alleged that Appellants are lessees or an assignee of a lessee under certain described oil and gas leases. They alleged that these lease operators have failed to drill wells into the Strawn and Ellenburger formations and have drilled wells in the Canyon formation on 320-acre rather than 160-acre spacings. They, specifically allege:

A reasonably prudent operator would have drilled and would now drill other and additional wells on the leased premises. Such operator would have drilled and would now drill wells into the Strawn and Ellenburger formations and all other formations underlying the leased premises that could reasonably be expected to be commercially productive. Such operator would have and would now also drill additional wells into the Canyon formation so that a well density of one well per 160 acres would be established therein. Defendants’ failure to so drill and test has been and is now a breach of the implied covenants of the Leases to reasonably develop the leased premises.

In the prayer of that pleading, Appellees seek a declaratory judgment decreeing that Appellants begin and hereafter continue to drill wells into the Strawn and Ellenburger formations and that they drill wells in the Canyon formation on 160-acre spacings.

This same identical issue was before the Court in Petroleum Producers Company v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942), on a certified question. With regard to the language and application of subdivision 5, the Court said:

It is quite clear from the language used in this subdivision that, aside from the fact that the pleadings in the suit disclose that the suit is ‘upon or by reason of’ an obligation of some sort — either written or unwritten, express or implied — there is but a single fact which need be shown in order to cast venue in the county where the suit is brought. This single fact is to the effect that the defendant has contracted in writing to perform the alleged obligation in said county — the county or some definite place therein being expressly named in the writing. Proof of the existence of a cause of action is not required now, and was not required before the subdivision was amended in 1935. Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810.
The terms of the lease instrument . imply an obligation on the part of the lessee to drill offset wells and development wells. Grubb v. McAfee, 109 Tex. 527, 212 S.W. 464; Texas Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936; Freeport Sulphur Co. v. American Sulphur Royalty Co. of Tex., 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890. The place for performance of this implied obligation is expressly named in the lease instrument, to wit, the parcel of land in Jones County in respect to which the parties to the lease were contracting.
We conclude that the facts show that venue, as prescribed in Subdivision 5, lies in Jones County and that the trial court correctly overruled the company’s plea of privilege.

The terms of the lease agreement as set forth in the Steffens case are similar to the provision of the leases in this case except as to the amount of royalty, which is larger.

Quite clearly, under the holding in Stef-fens, the existence of a cause of action is not required, and where the place of defendant’s performance is expressly named in writing, the obligation sued upon may be implied. Ed Rachel Foundation v. Texas Oil & Gas Corp., 561 S.W.2d 33 (Tex.Civ. App.—San Antonio 1978, writ dism’d); Kornell v. Montgomery, 421 S.W.2d 752 (Tex. Civ.App. —Texarkana 1967, no writ); Bryan v. Williams, 408 S.W.2d 798 (Tex.Civ.App.—San Antonio 1966, no writ). Also see: Dixon Management Corporation v. Montfort, 337 S.W.2d 738 (Tex.Civ.App.—Eastland 1960, no writ).

Williams and Meyers, Oil and Gas Law, Vol. 5. sec. 803 at 15-16 says:

Thus, where venue of an action for breach of a written contract to perform an obligation lies in the county of performance, venue for implied covenant actions lies in the county where the leasehold is located, because the covenant is implied in fact, is therefore part of the writing, and expresses an obligation to be performed in a particular county. [Footnote omitted]

At least part of the relief sought is the drilling of additional wells in the Canyon formation under an implied covenant to reasonably develop. Certainly, the obligation under the written leases would have to be performed in Crockett County. Following the holding in the Steffens case, we conclude that venue is in Crockett County. The Appellants’ points of error 3 and 4 asserting that venue cannot be maintained under subdivision 5(a) are overruled.

Points of error 5 and 6 assert that Appellees knew or had reason to know that at the time they filed suit they had no cause of action for breach of an implied covenant to reasonably develop these leases. The net effect of such contention is that such pleadings fraudulently asserted a cause of action for the purpose of establishing venue. With regard to this contention, the burden of proof rests on these Appellants. Sun Oil Company (Delaware) v. Hall, 566 S.W.2d 696 (Tex.Civ.App.—Austin 1978, no writ). This burden is discharged by showing that the plaintiff did not have a valid cause of action and that plaintiff knew or should have known this fact at the time of filing suit. Sun Oil Company (Delaware) v. Hall, supra. The Appellants sought to meet this burden through their cross-examination of John C. Byers, a consulting geologist hired by Appellees, and through the testimony of Clem Roberts, area geologist for Suburban Propane Gas Corporation.

Certainly, some of the testimony is conflicting. Opinions expressed by expert witnesses do not establish material facts as a matter of law. There was evidence to support the implied finding by the trial Court that a cause of action was not fraudulently asserted for venue purposes. We follow and apply the same rules relied upon by the Court in reaching a similar result in Sun Oil Company (Delaware) v. Hall, supra. Points of error 5 and 6 are overruled.

Point of error 7 asserts that the trial Court abused its discretion in denying, and in not granting, Appellants’ Motion to Permit Additional Evidence under the provisions of Rule 270, Tex.R.Civ.P. By such motion, the Appellants proposed to show after the hearing on the pleas of privilege, but before the order overruling the same, that a well which the Appellees’ expert witness, John Byers, testified should have been drilled to the Strawn formation in the southwest quarter of Section 4, Block F, had been drilled and was non-commercial and plugged in that formation. This Court has recognized that there are occasions when it is the duty of the Court to grant such a request to hear additional evidence, especially when the proffered testimony is decisive, and its reception will not cause any undue delay, or do an injustice. Russell v. Russell, 443 S.W.2d 569 (Tex.Civ.App.—El Paso 1969, no writ). In the case now before us, the proffered testimony would not have been decisive nor controlling on the obligation to reasonably develop in the Canyon formation. The Appellants assert there is no implied obligation to “explore” or “test” formations which are not productive in pay ing quantities under the holding in Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684 (1959), and that there are no wells producing from either the Strawn or Ellenburger formations under the leases involved in this case. Thus, the only duty to reasonably develop would be limited to the Canyon formation and any evidence with regard to the drilling of a dry hole in the Strawn formation would not be decisive on the issue of reasonable development in the Canyon formation. Point of error 7 is overruled.

It is not necessary for us to pass upon the issue of the applicability of subdivisions 14, 23, 27, and 29 of the venue statute. The order of the trial Court overruling the pleas of privilege is affirmed.


author: GUITTARD, Chief Justice.

text:
    Roy L. MARTIN, Appellant, v. CITY OF MESQUITE, Texas, et al., Appellees.
    No. 20085.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 14, 1979.
    Rehearing Denied Dec. 20, 1979.

      Edward Kliewer, III, Ronald B. King, Foster, Lewis, Langley, Gardner & Banack, Inc., San Antonio, for appellant.
    Elland Archer, City Atty., Mesquite, for appellees.
    Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

The owner of approximately nine acres of land, on which a retail store is located, brought this suit attacking the city’s assessment of his property for the year 1976. The trial court, sitting without a jury, denied relief, and the taxpayer appeals on the ground that the trial court erred in finding that the city had presented evidence before the board of equalization supporting its valuation and in holding that he had failed to establish that the value placed on his property was excessive. We find evidence to support the trial court’s findings. Accordingly, we affirm.

The taxpayer contends that since he had filed a sworn rendition of this property stating a value less than that for which it was assessed and had appeared before the board of equalization to protest the city’s valuation, the city had the burden under article 7212, Texas Revised Civil Statutes (Vernon Supp.1978-1979), to introduce competent evidence before the board but failed to do so. The city contends that article 7212 does not apply to cities, but that even if it does, competent evidence was presented. Without deciding whether article 7212 applies to cities, we hold that the board had before it evidence sufficient to support its valuation.

The record contains a court repprter’s transcript of a portion of the proceedings before the board and also the testimony in court of the city tax assessor, Jerry Jones, who was present at the hearing before the board. Jones testified concerning his qualification as a tax assessor and appraiser, and no challenge is made to his qualification as an expert on valuation of property. He testified that at the beginning of the board hearing he presented to the board his tax assessment records, together with his affidavit that the values shown by the records were true and correct. These records, he said, were in the form of appraisal cards for the various properties assessed. The appraisal card for the property in question is in evidence. It gives a substantial amount of detailed information, including a diagram of the land and buildings, the amount and value of the land, the cost, size, characteristics, and condition of the improvements, and all changes made in valuation since 1962. This card shows the value to be $300,000 for the land and $782,000 for the improvements, making a total of $1,082,000.

The appraisal card, but not the tax assessor’s affidavit, appears in the transcript of proceedings before the board. This transcript does not purport to include the complete hearing before the board, and apparently other property had been considered before this property was reached. The transcript does show that when the board came to consider the property in question, the assistant tax assessor, Joe Pondrom, made the following statement to the board:

What we have is the Woolco property belonging to Roy Martin & Associates. We’ve got $1,082,000.00 on land and buildings. Its value was established in 1970. And we have made no changes to it since that time.

Although this transcript does not show that Pondrom was under oath, Jones testified at the trial that Pondrom was sworn at the beginning of the hearing.

We conclude that this evidence is sufficient to support the board’s valuation. It does not show, as the taxpayer argues, that the board had nothing before it except the personal knowledge of its members and the evidence offered by the taxpayer. Proceedings before boards of equalization are informal and quasi-judicial. Warren Independent School District v. Southern Neches Corp., 404 S.W.2d 809 (Tex.1966). Such boards are not bound by the rules of evidence and are allowed a broad latitude in determining the value at which property is to be assessed for taxing purposes. Pierce v. City of Jacksonville, 403 S.W.2d 512, 518 (Tex.Civ.App.— Tyler 1966, writ ref’d n. r. e.). We know of no legal requirement that an expert opinion from an independent appraiser must be obtained when the city’s own assessor is qualified to express an opinion on the value. Neither do we know of any authority establishing that the assessor’s qualifications must be recited to the board, or that his valuation must be given orally rather than by written statement under oath, particularly if the assessor is present and available for cross-examination, as in this case.

We recognize that there is no evidence that the appraisal card or the assessor’s affidavit was furnished to the taxpayer at the time of the hearing, but, presumably, both were public records available to the taxpayer before and during the hearing. In view of the assessor’s testimony that the valuation on the card was supported by his affidavit and also by the sworn statement to the board by the assistant tax assessor, we find no failure to comply with article 7212 and no denial of due process. If the board’s valuation, based on this evidence, is excessive, the taxpayer has his remedy, which he has invoked in this suit. We turn, therefore, to his contention that the court erred in holding that this valuation is not excessive.

In order to establish that the board’s valuation is excessive, the taxpayer asserts that the board erred in disregarding the income approach to value and in basing its valuation of the building in question entirely on replacement cost. In this connection, he argues that at the trial the city offered no valuation testimony but that of its tax assessor, who based his testimony entirely on replacement cost and disregarded the rental income from the property under the terms of a long-term lease to P. W. Woolworth Co., which, according to the taxpayer, provided a rental so low that no reasonable investor would willingly buy the property for the amount at which it was assessed.

We cannot agree that the trial court erred in finding that the valuation of $1,082,000 is fair and equitable. The tax assessor testified at length concerning his method of assessing the property. He said that he personally filled in the information on the appraisal card for the property in question. He estimated the market value of the land without the building at $300,-000, without considering the effect of the lease. He estimated the value of the building on the basis of replacement cost per square foot at $782,000, differentiating between the sales area, auto service area, and receiving or storage area. This figure, he said, was determined in 1970 according to costs prevailing at that time and the same valuation had been used for each succeeding year on' the theory that any depreciation in the building was offset by a general increase in costs and appreciation in market value.

The assessor testified that he considered the income approach in valuing the property, but not the income from the current lease. Rather, he considered the property as if it were not leased and what it might have been leased for. He did not give the income approach any weight because the information provided by the landowner was not adequate, since the lease had many variables and would require an appraiser to speculate.

The assessor testified that he was personally familiar with the property and had inspected it when the 1970 valuation was made, and again for the 1976 valuation. He estimated that the current reproduction cost of the improvements, without allowing for depreciation, was $1,800,000. He said that there was no physical depreciation other than normal wear and tear. He did not apply any depreciation to the 1970 reproduction cost figure because in his opinion the property had actually appreciated about twenty per cent. He used the cost approach because it would provide a more uniform valuation throughout the city than the income approach, which could not be used, for instance, in the case of residential property. In his opinion, use of the income approach for some property but not all would create inequities throughout the city. At one point the assessor testified that no willing buyer would have paid $1,082,000 for the property subject to the lease, but on further cross-examination, he retracted that statement and testified that the most a knowledgeable buyer would pay for the property on January 1,1976, was “probably a million one.”

The taxpayer presented the testimony of his leasing agent, who said that the property is subject to a lease to Woolworth in which the primary term extends until 1982 and the lessee has options to extend the term for another twenty-five years. The agent testified that the minimum annual rent stipulated in the lease is $130,000 per year, with a provision for additional rent based on a percentage of gross sales, but that the actual sales for the years in question do not bring the rental above the minimum and that the property has a “negative cash flow” in that the expenses of maintaining, insuring, and paying taxes exceeded the amount of the rent. He acknowledged that in the future the amount of sales might reach a point that the lessor would receive a percentage as well as the minimum rent. The agent was of the opinion, however, that a knowledgeable investor would not buy the property for more than $800,000.

The taxpayer also presented the opinion of a professional appraiser, who testified that he had appraised the owner’s interest in the property, subject to the lease, including the owner’s right to future income and his reversionary rights, at approximately $700,000. He acknowledged that the physical property with improvements was worth more than that amount and that he would value it at a higher figure if it were not subject to the lease. He did not consider the replacement cost a significant method of determining market value subject to the lease, although he would consider it if there were no lease on the property.

This evidence must be considered in the light of the applicable rules of law. The constitution requires taxation to be equal and uniform and that property be taxed in proportion to its value. Tex.Const. art. 8 § 1. “Value” as used in this section, has been interpreted to mean reasonable cash market value. Rowland v. City of Tyler, 5 S.W.2d 756, 760 (Tex.Comm’n App. 1928, judgmt. adopted). Determination of the exact market value each year of each piece of property within a county, city, or other taxing district is a task of staggering complexity. Consequently, courts have recognized that exact uniformity and equality is unattainable and have held that no attacks on valuations fixed by boards of equalization can or will be sustained in the absence of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572-73 (1954). Although a grossly excessive valuation may be sufficient to establish fraud or illegality, mere error in judgment, or the fact that a trial judge or jury differs with the valuation fixed, will not suffice as a basis for avoiding the board’s action. Id. at 573. The burden is on the taxpayer to establish that the assessed value is so far above the cash market value as to shock a correct mind and raise a presumption that the valuation is fraudulent or does not represent a fair and conscientious effort to arrive at the fair cash market value. Texas Eastern Transmission Corp. v. Sealy Independent School District, 580 S.W.2d 596, 604 (Tex. Civ.App.—Houston [1st Dist.] 1979, writ ref’d n. r. e.).

In the light of these principles, the evidence in this case does not establish as a matter of law that the valuation of $1,080,-000 is excessive. Certainly, it cannot be considered so grossly excessive as to establish fraud or illegality in view of the taxpayer’s valuation of $700,000 to $800,000, and the well-known tendency of appraisers to differ. Moreover, the court’s finding is supported by the assessor’s testimony that the market value is probably as high as $1,100,000.

The taxpayer’s principal argument is that the trial court erred in rejecting the income approach to value and in not taking into consideration the low rent provided in the lease. We cannot agree. If an income approach were adopted for this taxpayer, then every other owner of commercial property would be entitled to the same treatment. Yet to value commercial property solely according to its income has been held to be an erroneous method of valuation because long-term rental contracts made either in boom times or times of depression may be affected by bad business judgment and would not represent fair value to either the city or the taxpayer. Rowland v. City of Tyler, 5 S.W.2d 756, 760 (Tex.Comm’n App.1928, judgmt. adopted). We cannot adopt a rule that would require the tax assessor to examine the provisions of each commercial lease, calculate the rent under various contingencies, evaluate the taxpayer’s claims of legitimate expenses, and apply a capitalization factor to determine market value. We hold, rather, that the trial court could properly accept the opinion of the tax assessor that such a method would make uniformity of valuation difficult, if not impossible, and that the only fair method is to value the property as the assessor valued it, namely, by estimating the market value of the land in the light of sales of comparable property and adding the replacement cost of the improvements, determined on a uniform basis. Clearly, the taxpayer has failed to establish as a matter of law that this method of valuation is fundamentally erroneous.

Moreover, we conclude that the assessor’s method of valuing the property as if it were not subject to a lease is not only permitted, but required by Texas law. The general rule, as stated in Daugherty v. Thompson, 71 Tex. 192, 9 S.W. 99, 101 (1888), is that the owner of real estate leased is taxed on the entire value of the property. Accord Yadco, Inc. v. Yankton County, 89 S.D. 651, 237 N.W.2d 665, 668-69 (1975). When the fee is exempt from taxation, leaseholds are expressly made taxable by articles 7173 and 7174, Tex.Rev.Civ.Stat. Ann. (Vernon Supp.1978-1979). Most lease holds, however, are not taxable under existing law. Irving Independent School District v. Delta Airlines, Inc., 534 S.W.2d 365, 368 (Tex.Civ.App.— Texarkana 1976, writ ref’d n. r. e.); Tex.Atty.Gen.Op. No. M-319 (1968). Consequently, to reduce the assessed value of property because of an unfavorable lease would allow property to escape taxation to the extent that the value of the leasehold estate exceeds the value of the lessor’s right to payment of rent.

In Daugherty v. Thompson, supra, the Supreme Court expressly recognized that this general rule does not violate the constitutional requirement that all property be taxed in proportion to value. Since the terms of each lease are matters of contract, the ultimate tax burden is left to the process of bargaining between the parties. Any proper economic analysis of lease transactions must recognize that unless the tax burden is expressly shifted to the lessee, the rent is fixed with a view to the amount of taxes and other expenses of ownership. If a particular lease fails to specify a rental sufficient for this purpose, the lessor cannot be heard to complain that his taxes are for that reason excessive.

The taxpayer also attacks the board’s valuation on the ground that the board violated the Open Meetings Act, Tex. Rev.Civ.Stat.Ann. art. 6252-17 § 2 (Vernon Supp.1978-1979), by excluding the public from its deliberations. He bases this contention on the following statement made by a member of the board at the end of its hearing:

Gentlemen, we will render a decision this afternoon. We appreciate your coming and we will try to be as fair as possible. You will be notified as to our decision.

The trial court was justified in finding that this statement did not exclude anyone, but was merely an act of courtesy advising the parties that they would not be required to remain at the meeting place in order to learn the decision of the board. Consequently, no violation of the Open Meeting Act is shown.

Affirmed.


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    Brenda GLOVER, Appellant, v. CITY OF HOUSTON, Appellee.
    No. A2148.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 14, 1979.
    Rehearing Denied Dec. 5, 1979.

      D. John Leger, Leger, Hall, Hill & Glover, Houston, for appellant.
    Robert M. Collie, Jr., City Atty., Burt Bellanfant, Asst. City Atty., Houston, for appellee.
    Before BROWN, C. J., and JUNELL and MILLER, JJ.
   JUNELL, Justice.

A personal injury plaintiff, Brenda Glover, sued the City of Houston for its alleged negligence for failure to properly maintain city streets, and failure to warn motorists of the dangerous condition resulting therefrom. The plaintiff was injured in a collision which occurred after her automobile hit a large hole or rut just off the paved portion of a road in northwest Houston, causing her to lose control. The jury found negligence on the part of the City and on the part of the plaintiff, but answered all proximate cause issues against the plaintiff. Glover appeals from the judgment claiming that the findings of no proximate cause as to the City’s negligence are against the great weight and preponderance of the evidence. Appellant also claims that there is insufficient evidence to support the findings of negligence and proximate cause as to her acts. We overrule all points and affirm the judgment of the trial court.

When a jury finding is attacked on the ground that it is against the great weight and preponderance of the evidence, appellate review is guided by the test stated in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). That case charges the Court of Civil Appeals to consider and weigh all evidence in the case, and to reverse the judgment if it concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellant urges that the case of Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957), controls the present situation. She contends that because the findings of negligence against the City show such clear misconduct, the jury finding of no proximate cause must be overturned, and cites Biggers as authority for this court to reverse. We do not so construe that case. The Biggers case mandates this court to affirm the judgment if there is evidence of probative value which, with reasonable inferences therefrom, will support any one of the findings of proximate cause. Biggers, supra, citing Hall v. Medical Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497 (1957). That case does not provide precedent for this court to substitute its conclusions for the jury verdict. The rule is well settled that the question of proximate causation is one of fact peculiarly within the province of the jury, and the jury finding on it will be set aside only in the most exceptional cases. Enloe v. Barfield, 422 S.W.2d 905 (Tex.1967); Pate v. Southern Pacific Transp. Co., 567 S.W.2d 805 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref’d n. r. e.). Upon a review of the entire record in this case we find no such exceptional circumstances.

Appellant assigns error claiming that the findings of no proximate cause on the City’s failure to repair are against the great weight and preponderance of the evidence. The record reveals testimony, however, from which the jury could and did infer that her own negligent acts were the proximate cause of the collision. Glover testified that she attempted to pull her car back on the road after falling into the rut. The jury found this to be negligence and a proximate cause of her injuries. There was testimony that the appellant was driving 25-30 mph, and the jury found this to be negligence under the conditions and a proximate cause of the collision. Glover testified that she saw large ruts all along the side of the road. All witnesses admitted that the ruts along LaMonte were obvious to anyone traveling on it. The jury, in applying the “but for” rule to determine proximate cause, could have found that even given the City’s negligencé, the plaintiff’s negligence alone caused the accident. Given the testimony from various sources which could tend to place proximate causation elsewhere, the finding of no proximate cause as to the City’s failure to repair is affirmed.

The appellant also assigns error claiming that the finding of no proximate cause on the City’s failure to place warning signs along the roadway is against the great weight and preponderance of the evidence. Every witness testified that the holes and ruts on the side of the road were open and obvious, and readily apparent to anyone driving on the street. The jury could certainly infer from this testimony that the failure to erect warning signs was not a cause of the accident because all parties were already aware of the condition, and thus no sign would have prevented the collision.

We hold, therefore, that because the issue of proximate cause is one of fact for the jury, and there was sufficient evidence of probative value to support the verdict, the findings of no proximate cause as to the City’s negligence are not against the great weight and preponderance of the evidence, and will not be overturned.

Appellant raises four additional points of error in her brief attacking the sufficiency of the evidence to support the jury findings of negligence and proximate cause as to her speed and her attempt to pull the car back on the paved portion of the road.

An insufficient evidence point should be sustained when the evidence adduced in support of the existence of a fact is factually too weak to support it. A review of the entire statement of facts in this case reveals probative evidence sufficient to support the findings of negligence and proximate cause on the part of the appellant.

The appellant assigned the insufficient evidence points but did not brief them. The law is clear that on appeal points raised but not briefed are waived. Security Federal S. & L. Ass’n v. Dewitt, 536 S.W.2d 262 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). For this additional reason we overrule the insufficient evidence points.

Appellant’s points of error are overruled and the judgment of the trial court is affirmed.

Judgment affirmed.


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    Janet Lynn LEWIS, Appellant, v. James Welton JOHNSON, Jr., Appellee.
    No. B2175.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 14, 1979.
    Carnegie H. Mims, Jr., Jefferson & Ma-ley, John W. Wiggins, Sr., Henderson, Wiggins & Adams, Houston, for appellant.
    Harry L. Tindall, Tindall & Foster, Houston, for appellee.
    Before COULSON, JUNELL and SALAZAR, JJ.
   JUNELL, Justice.

This is a paternity suit filed pursuant to Tex.Fam.Code Ann. § 13.01 et seq. (Vernon Supp.1978-1979), hereinafter called the Code. Janet Lynn Lewis (appellant or plaintiff) filed suit against James Welton Johnson, Jr. (appellee or defendant) to establish the paternity of Marcus Jamez Lewis, a minor child born out of wedlock. Plaintiff alleged that defendant is the father of the child. Defendant filed a general denial. The case was tried before the court without a jury. The trial began and some evidence was heard on December 5, 1978, following which the trial was recessed. On February 6, 1979, the trial resumed, and on that same date both parties completed the presentation of all evidence and rested their cases. After arguments of counsel the court ruled that defendant is not the father of the child.

Plaintiff appeals claiming trial court errors (1) in appointing only one expert to make blood tests; (2) in not conducting a pretrial conference; (3) in trying the case on two separate days, two months apart; and (4) in finding, contrary to the overwhelming weight and preponderance of the evidence, that defendant is not the father of the child.

We find no error in the matters complained of; therefore, we affirm.

The Code in section 13.02 provides that the court shall order the parties to submit to blood tests; and at the time pertinent to this case section 13.03 provided that the court may appoint two or more experts to conduct such tests. By an order approved as to substance and form by appellant and appellee the trial court appointed one expert. Appellant did not request the court to appoint two or more experts and did not object or except to the court’s appointment of one. The appointed expert did the blood tests and reported that the tests did not exclude the appellee from being the father of the child.

Section 13.04 of the Code provides that the court shall conduct a pretrial conference after completion of the blood tests. There is no record that a pretrial conference was held.

Appellant contends that the provisions of sections 13.03 and 13.04 of the Family Code are mandatory and the trial court’s failure to obey them requires a reversal. We disagree.

It is clear from the various subdivisions of Chapter 13 that elimination of paternity claims having no possible merit is an important protection of innocent persons wrongfully accused of paternity.

However, in this case blood tests done by one expert proved appellee’s possible paternity; and the trial court proceeded to try the case on its merits. Blood tests by another expert and a pretrial conference could not have resulted in additional benefit to appellant. If the trial court erred in appointing only one expert and in failing to conduct a pretrial conference, such errors were harmless under Tex.R.Civ.P. 434 and do not require reversal.

Appellant next urges error by the trial court in conducting the trial on two separate days, two months apart. We find no merit in this point.

A court has much discretion in the disposition of its dockets. 56 Tex.Jur.2d Trial § 10 (1964). The non-jury docket shall be taken up at such times as to not interfere unnecessarily with the dispatch of business on the jury docket. Tex.R.Civ.P. 249; 56 Tex.Jur.2d Trial § 12 (1964). After a trial has actually been commenced, if a postponement to a future date becomes necessary, the court properly may take up and dispose of another case during the interval. 56 Tex.Jur.2d Trial § 17 (1964).

There is no showing here that the trial court abused its discretion in trying the case as it did. Also, there is no proof that harm probably resulted therefrom. Furthermore, appellant did not object or except to the trial court’s action in this respect. For all of these reasons this point is overruled.

Finally, appellant contends that the trial court’s finding that appellee is not the father of the child is contrary to the overwhelming weight and preponderance of the evidence. We have carefully considered all of the evidence and overrule this point.

Affirmed.