author: ELLIS, Chief Justice.

text:
    HOME INSURANCE COMPANY, Appellant, v. Jack H. DICKEY, Appellee.
    No. 8719.
    Court of Civil Appeals of Texas, Amarillo.
    May 23, 1977.
    Rehearing Denied June 20, 1977.

      Crenshaw, Dupree & Milam (Cecil Kuhne), Lubbock, for appellant.
    Stovall & Stovall (Van C. Stovall), Plain-view, for appellee.
   ELLIS, Chief Justice.

Venue in this suit to set aside a compromise settlement of a workmen’s compensation claim was sustained in Hale County pursuant to Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 7 (fraud). In its appeal from the trial court’s judgment overruling its plea of privilege, the defendant, Home Insurance Company, the insurer, contends that the plaintiff, Jack H. Dickey, did not establish venue under subdivision 7 because of his failure to prove that any false representations were made to him and that any such representations were attributable to the defendant. We find that under the pleadings and evidence venue is sustainable in the county in which the suit was brought. Affirmed.

Plaintiff Dickey was injured on February 21, 1974, while working for Lilie-Hoffmann Cooling Towers, Inc. in Plainview, Hale County, Texas. He apparently turned his left ankle and fell while getting out of a truck. Dickey timely filed his claim for compensation, and Home Insurance Company, the employer’s compensation carrier, was notified. Dickey visited Doctor Coe Branch of Plainview, who treated him for a sprained left ankle. Dickey selected Doctor Branch from a list of three doctors posted on the bulletin board at his employer’s offices. Doctor Branch saw Dickey twice and certified him to return to work on May 8, 1974. Branch sent reports of each of Dickey’s visits to the insurer’s claims adjuster, G. C. Shaffer. Branch’s final report, prepared on May 20, 1974, stated that Dickey would have a 10-15% permanent disability in his left ankle. After receiving Branch’s report, Shaffer proposed a settlement to Dickey. In his letter, Shaffer repeated Branch’s report of 10-15% ankle disability, informed Dickey that he was entitled to a recovery of $1,144.52, and offered to settle for $1,250.00 plus one year’s medical coverage. Dickey accepted the offer and on July 24, 1974, the parties executed a compromise settlement agreement. Between the time of the February sprain and fall and the time the agreement was executed, Dickey experienced no further falls or injuries. About a week after the agreement was executed, however, Dickey was experiencing severe pain and visited Dr. James Campbell, one of Doctor Branch’s associates. Dickey continued to see Doctor Campbell who eventually discovered a break in Dickey’s left femur. Campbell reported his discovery to Shaffer and stated that the fracture was related to Dickey’s fall of February 21, 1974. Campbell referred Dickey to Dr. Norbert Bublis, an orthopedic surgeon, who operated on Dickey’s hip in August, 1974. Bublis released Dickey from his care in January, 1975, and in his written report to Dickey’s employer, he stated that Dickey had a 40% permanent disability in his lower extremity.

In November of 1975, Dickey instituted this suit in Hale County to set aside the compromise settlement agreement, alleging actionable fraud against the insurance company. The insurer interposed its plea of privilege to be sued in Dallas County and Dickey controverted the plea on the basis of Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 7, which provides that “In all cases of fraud, . suit may be brought in the county where the fraud was committed or . where the defendant has his domicile.” The trial court overruled the plea of privilege. No findings of fact or conclusions of law were requested and none made. By 6 points of error the insurer contends that venue is not sustainable under subdivision 7 and challenges the evidential support for Dickey’s alleged cause of action for fraud.

Without findings of fact and conclusions of law, we must presume that the trial court found all essential facts in favor of Dickey and consistent with its order. Jordan v. Rule, 520 S.W.2d 463 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). Thus, we must affirm the trial court if the evidence produced supports any lawful theory raised by the pleadings. Loomis v. Sharp, 519 S.W.2d 955 (Tex.Civ.App.—Texarkana 1975, writ dism’d).

One basic element of proof required to establish venue under subd. 7 is a false statement attributable to the defendant. See e.g., Brooks v. Parr, 507 S.W.2d 818 (Tex.Civ.App.—Amarillo 1974, no writ). In its fifth and sixth points of error, the insurer has argued that there is no evidence and insufficient evidence that any statements made to Dickey were false. In response, Dickey has argued that statements by Doctor Branch and adjuster Shaffer were false when made. In particular, Dickey has pointed to Branch’s report that he had only a 10-15% disability in his ankle, Shaffer’s repetition of Branch’s report and Shaffer’s statement that Dickey was entitled to a settlement of only $1,144.52. To support his contention that these statements were incorrect when made, Dickey introduced the report of Dr. James Campbell, which reads in part, as follows:

So as to the question as to whether or not this fractured hip is related to the sprained left ankle the patient sustained in February, I would have to say that certainly this is indirectly related. It is my opinion . . . that the most likely occurence (sic) of events was in February when he sprained his ankle. Because of the fall he could have suffered a stress defect in the left femur in the femoral neck area. This is not a true fracture, of course, but it is a cortical defect in the bone and because the compensatory limp that Mr. Dickey assumed after this sprain for the subsequent five or six months, it is thought that approximately two weeks prior to x-ray of the fractured hip on August 6, 1974, the patient could have sustained the break. Now, of course, he has not suffered any fall since February. He has not stated any sequence of events that would make you think that he suffered the fracture at anytime in the last month. So a gross description of events would be a small cortical stress defect was sustained of the left femur in the injury on February 25, 1974. This defect “gave way” finally after many months of limping and the femur fractured through and through.

According to the plaintiff’s interpretation of the above quoted portion of the report, the February, 1974 fall produced a “cortical defect,” in Dickey’s left femur, and this defect was necessarily present when Doctor Branch and Shaffer made the representations to Dickey regarding the 10-15% injury to his ankle. The fracture above described resulted in a 40% disability. Thus, if Campbell’s opinion expressed in his report was correct, the statements by Branch and Shaffer were incorrect when made. The insurer, however, has argued that Campbell’s report constitutes no evidence that the statements of Branch and Shaffer were incorrect because the report was not cast in terms of medical probabilities.

It is recognized that there is a statement in the report that the February fall “could have” produced the cortical defect. If the entire report established only a possibility of causation, we would agree that the report constituted no evidence that the defect existed at the time the questionable statements were made. See, e.g., Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966).

Doctors, however, sometimes use the term “could have” to mean “probably did.” Lord v. Insurance Company of North America, 513 S.W.2d 96, 100 (Tex.Civ.App.—Dallas 1974, no writ). We believe this was the case with Campbell’s report. Campbell stated that the hip fracture and the February ankle sprain were “certainly . indirectly related.” In his opinion, the “most likely occurrence of events” was in February when Dickey could have suffered a stress defect in his left femur because of the fall. Finally, Campbell stated that “a gross description of events would be a small cortical stress defect was sustained of the left femur in the injury on February 25, 1974,” and that this defect gave way after many months of limping. At that point, the femur fractured “through and through.”

Thus, a reading of the complete report reveals that Campbell believed — not merely as a possibility — that the fall caused the cortical defect and eventually, the fracture. When full consideration is given to all statements in their entirety and in the context made, it is our opinion that the report sufficiently indicated the doctor’s opinion as to the medical probability of the asserted relationship between the fall, the resultant cortical defect and the compensatory limp which eventually culminated in the fracture. See Lord v. Insurance Company of North America, supra. It is our opinion that the report, corroborated by Dickey’s testimony that he had experienced no other fall or trauma during the time span in question, supports the trial court’s implied finding that the statements by Shaffer and Branch were incorrect when they were made. Points 5 and 6 are overruled.

The insurer, however, has argued that these incorrect statements were not attributable to it and not a basis for a fraud cause of action. See Brooks v. Parr, supra. Points 1 and 2 test the legal and factual sufficiency of the evidence to support an implied finding that Branch was the agent of the insurance company. In points 3 and 4, the insurer has argued that Shaffer’s statements were not actionable because Shaffer did not know they were false and did not act in bad faith.

It is undisputed, however, that Doctor Branch told Dickey he only had a sprained ankle and that Branch’s report showed that he would only have a 10-15% disability in his left ankle. On the basis of this report, Shaffer informed Dickey that he had 10-15% disability and that he was entitled to only $1,144.52 in settlement of his claim. There is evidence that these representations were false when made, and that Dickey relied upon them when he agreed to settle.

We agree with the insurer that there is no evidence that Shaffer or Branch knew their representations to be false. It is not necessary, however, to prove such knowledge. Graves v. Hartford Accident & Indemnity Co., 138 Tex. 589, 161 S.W.2d 464 (Tex.Com.App.1942, opinion adopted); Traders & General Insurance Company v. Wright, 437 S.W.2d 658 (Tex.Civ.App.—Beaumont 1969, no writ). Furthermore, absence of bad faith does not negate the plaintiff’s cause of action. Texas Employers’ Insurance Association v. Maynard, 362 S.W.2d 128 (Tex.Civ.App.—Austin 1962, writ ref’d n.r.e.). In the light of the foregoing, points 3 and 4, which are predicated upon the assumption that knowledge of the incorrectness and lack of good faith on the part of the adjuster are necessary elements of actionable fraud, are overruled.

It has been established that if a doctor makes false statements to a compensation claimant, the statements are not attributable to the insurance company if the claimant chose the doctor by himself. See Mullens v. Texas Employers’ Insurance Ass’n, 507 S.W.2d 317 (Tex.Civ.App.—Waco 1974, writ ref’d n.r.e.); Bullock v. Texas Employers’ Ins. Ass’n, 254 S.W.2d 554 (Tex.Civ.App.—Dallas 1952, writ ref’d); Gibson v. Employers' Liability Assurance Corp., 131 S.W.2d 327 (Tex.Civ.App.—Texarkana 1939, writ ref’d). In contrast, if the claimant’s employer or the insurance company chose the doctor, or the doctor was the agent of either, the insurance company will be charged with any false statements made by the doctor. Graves v. Hartford Accident & Indemnity Co., supra; Traders & General Insurance Company v. Wright supra; Vineyard v. Texas Employers’ Ins. Ass’n, 263 S.W.2d 675 (Tex.Civ.App.—Dallas 1953), writ ref’d n.r.e.). In the case before us, however, Dickey has argued that the adjuster’s use of the doctor’s incorrect report can be the basis for a cause of action for fraud.

In this regard, it has been held that use of a false medical report by an insurer’s claims agent in connection with a settlement was not actionable where the reporting doctor had been chosen by the claimant. Bullock v. Texas Employers’ Insurance Ass’n, supra. On the other hand, it has been held that where the claimant was referred to the reporting doctor by his employer or the insurance company, or the doctor was the agent or employee of either, the use of an incorrect report and reliance thereon by the claimant can be the basis for a fraud action. See Texas Employers’ Insurance Ass’n v. Sprabery, 507 S.W.2d 340 (Tex.Civ.App.—Fort Worth 1974, no writ); Texas State Highway Department v. Kinsler, 230 S.W.2d 364 (Tex.Civ.App.—Beaumont 1950, writ ref’d).

In the instant case, Dickey testified that he selected Doctor Branch from a list of three doctors whose names appeared on his employer’s bulletin board and that he would not have chosen Branch but for the fact that his name was listed on the bulletin board in his employer’s office. In this connection, Dickey stated that, although Doctor Branch had previously treated his wife, he had never met him. Further, the parties stipulated that Doctor Branch’s testimony would be that he “was authorized by Home Insurance Company to examine and treat Jack Dickey, and in connection with the examination and treatment of Jack Dickey, the charges were sent to and paid by Home Insurance Company.” The evidence further shows that on each occasion that Doctor Branch examined Dickey, he advised the patient of the sprain in his left ankle and sent a report to Shaffer, the adjuster for Home Insurance Company.

The insurer argues that the claimant’s mere selection of Doctor Branch from names posted on his employer’s bulletin board does not, under the circumstances of this case, constitute the doctor its agent. In making this argument, the insurer relies on Mullens v. Texas Employers’ Insurance Ass’n, supra, in support of its position that authorization by the insurer for the claimant to see a particular doctor does not make the doctor an agent of the insurer, and on Texas Employers’ Insurance Association v. Williams, 447 S.W.2d 232 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ) for authority that the fact that the carrier refers a claimant to a doctor for treatment, receives reports from the doctor, and pays the doctor’s bill is not sufficient to constitute the doctor an agent of the insurer. These cases are distinguishable from, and are not dispositive of the significant issues in, the case at bar.

In neither Mullens nor Williams was there any showing that the insurer used the doctor’s report in effecting settlement. Here, however, the insurer used Doctor Branch’s report to inform Dickey of his percentage of disability and what amount that disability entitled him to receive in settlement of his claim. Settlement was effected on that basis. Under these circumstances where the insurer uses the doctor’s report to bring about the settlement of the claim and accepts the benefits derived therefrom, the doctor becomes the insurer’s agent insofar as his report is made the basis of settlement. Jones v. Traders & General Ins. Co., 188 S.W.2d 739, 741-42 (Tex.Civ.App.—Eastland 1945, no writ). Accord, Associated Employers Lloyds v. Aiken, 201 S.W.2d 856, 860-61 (Tex.Civ.App.—Dallas 1947, writ ref’d n.r.e.).

In the light of the foregoing, it is our opinion that the evidence sufficiently supports the trial court’s implied finding of agency. Accordingly, points 1 and 2 are overruled.

For the reasons above stated, it is our opinion that the evidence sufficiently supports the implied findings of the trial court that there were incorrect representations by Doctor Branch and Shaffer, although innocently made, concerning Dickey’s condition prior to the time of the settlement and that such representations are attributable to the defendant. Thus, for venue purposes, the plaintiff has established the existence of a cause of action against the insurer in Hale County, Texas, and that venue is sustainable in such county pursuant to the provisions of subdivision 7.

The judgment of the trial court overruling the defendant’s plea of privilege is affirmed.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    In re Nita Lee Garvin RASCO, Incompetent.
    No. 19198.
    Court of Civil Appeals of Texas, Dallas.
    May 23, 1977.

      G. Dennis Sullivan, Woodburn & Sullivan, Dallas, for appellant.
    Robert C. McGuire, Ungerman, Hill, Un-german, Angrist, Dolginoff, Teofan & Vick-ers, Dallas, for appellee.
   ROBERTSON, Justice.

Lawyers Surety Corporation has appealed from a judgment entered against it as surety in the final accounting of a guardianship proceeding. Lawyers Surety claims that the probate court erred in precluding it from calling or examining witnesses. Alternatively, Lawyers Surety asserts that there is insufficient evidence to support the probate court judgment. We hold that the trial court erred in precluding the surety’s participation as a party to the guardianship proceeding and, accordingly, reverse and remand with instructions to hear evidence presented by appellant regarding the accuracy of the final account.

On May 1,1973, Thomas K. Rasco applied for appointment as guardian of the person and estate of his mother, Nita Lee Garvin Rasco. The application was granted, and Lawyers Surety was approved as surety. Subsequently, Thomas Rasco was removed as guardian of his mother’s estate for various derelictions of guardianship duties and failures to comply with court orders. James J. Hartnett, appellee herein, was then appointed successor guardian and filed a final accounting on behalf of the former guardian. On October 19, 1976, the probate court held a hearing on the final account. However, at that hearing the court heard no testimony regarding the accuracy of the final account; rather it only considered the final account itself, certain stipulations by the former guardian, and arguments of counsel. The successor guardian also requested compensation for his services and stated what he considered to be a reasonable fee. Although Lawyers Surety requested the opportunity to call and examine witnesses regarding the accuracy of the account, the request was not ruled on at that time. Prior to the entry of judgment, the surety filed a motion for rehearing, which formally requested reopening the case for the purpose of allowing a complete investigation into the accuracy of the final account. This motion was overruled, and the court entered a deficiency judgment against both the former guardian and his surety, together with interest and attorney’s fees.

Lawyers Surety asserts that the probate court erred in refusing to reopen the case for the purpose of such a hearing. In so contending, it argues that it is an “interested person” within the meaning of the Probate Code and that the probate court was obliged to hold an evidentiary hearing in which all interested parties could present evidence supporting or disputing the accuracy of the account. We hold that Lawyers Surety was an interested party and had standing to present evidence disputing the accuracy of the account.

The controlling statutory provisions are Texas Probate Code Annotated, sections 407 (Vernon Supp.1976) and 408(a) (Vernon 1956). Section 407 provides:

Upon the filing of an account for final settlement by temporary or permanent personal representatives of the estates of decedents or wards, or of the persons of wards, citation shall contain a statement that such final account has been filed, the time and place when it will be considered by the court, and a statement requiring the person or persons cited to appear and contest the same if they see proper. Such citation shall be issued by the county clerk to the persons and in the manner set out below.

Section 408(a) provides:

Action Upon Account. Upon being satisfied that citation has been duly served upon a 11 persons interested in the estate, the court shall examine the account for final settlement and the vouchers accompanying the same, and, after hearing all exceptions or objections thereto, and evidence in support of or against such account, shall audit and settle the same, and restate it if that be necessary. [Emphasis added.]

As surety, appellant was an “interested person” entitled to participate under section 408(a). Any deficiency judgment entered against the former guardian is conclusive against both the guardian and the surety, whether or not the surety formally participates. Williamson v. Bowman, 98 S.W.2d 449, 451 (Tex.Civ.App.-Texarkana 1936, writ ref’d); Whitfield v. Burrell, 54 Tex.Civ.App. 567, 118 S.W. 153, 157 (1909); Bopp v. Hansford, 18 Tex.Civ.App. 340, 45 S.W. 744 (1898). Obviously, if a surety is to be bound by any judgment entered against the former guardian, it must be given the right to contest the accuracy of the account with proper evidence. Cf. Satterfield v. Burke, 514 S.W.2d 138, 140 (Tex.Civ.App.-San Antonio), modified, 525 S.W.2d 950 (Tex.1975) (independent executrix requested notice to all “interested” parties. Surety held to be entitled to notice). Since Lawyers Surety had the right to participate, we conclude that the probate court abused its discretion in refusing to reopen the case to allow additional evidence. While we recognize that reopening a case is within the discretion of the trial court, this discretion is to be liberally exercised in the interest of allowing full development of the case in the interest of justice. McRoy v. Riverlake Country Club, 426 S.W.2d 299, 305 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.); Hill v. Melton, 311 S.W.2d 496, 500 (Tex.Civ.App.-Dallas 1958, writ dism’d). In the present ease, Lawyers Surety questioned the accuracy of the account, noting several conflicts in the various accountings filed with the court’s records. The surety sought to interrogate the former guardian regarding those discrepancies, but the court heard no testimony regarding this issue at the hearing and refused to reopen the case to permit inquiry into this or any other issue. Lawyers Surety was thus effectively precluded from challenging the accuracy of the discrepancies for which it was later held liable. This preclusion constituted an abuse of discretion and prejudicial error.

The guardian asserts that the surety’s failure to object to the granting of attorney’s fees waived any subsequent challenge to the award. We cannot agree with this contention. Waiver can only occur when both parties are before the court and have the opportunity to invoke its aid, Cauble v. Key, 256 S.W. 654, 655 (Tex.Civ.App.1923, no writ), and a party whose right to participate has not been recognized waives nothing by failing to object. Even though the court permitted objections to the awarding of appellate attorney’s fees, these objections were made while the surety’s standing was unrecognized; consequently, the objections had no legal effect. The preclusion from participation fatally infects all relief granted by the court, including the award of attorney’s fees, and, therefore, the cause must be remanded for a hearing on all issues.

The final problem presented by this appeal concerns the informal and summary probate court proceedings in this case. The court apparently was under the misconception that a final account should be summarily approved if no formal contest is pressed. Since the former guardian stipulated the accuracy of the account, the court apparently believed no further supporting proof was necessary. We disagree. If a contest is filed, it is encumbent upon the guardian to establish the essential facts supporting the contested items of the account by competent evidence. In re Rosenfield, 371 S.W.2d 95, 96 (Tex.Civ.App.-Dallas 1962, no writ); cf. Currie v. Drake, 550 S.W.2d 736 (Tex.Civ.App.-Dallas 1977) (probate court should hear evidence to determine amount due estate); Farley v. Cook, 402 S.W.2d 779, 782 (Tex.Civ.App.-Texarkana 1966, no writ) (temporary administratrix held not to have met burden of proving accuracy of final account).

Accordingly, we reverse and remand the cause with instructions to hold an evidentia-ry hearing regarding the accuracy of the final account and to allow appellant, Lawyers Surety Corporation, full rights of participation therein as a formal party.


author: GUITTARD, Chief Justice.

text:
    D. J. SPEARS, Appellant, v. Lonnie E. BROWN, Appellee.
    No. 19296.
    Court of Civil Appeals of Texas, Dallas.
    May 24, 1977.

      Jack C. Morgan, Morgan, Shumpert, Huff, Mosley & Co., Kaufman, for appellant.
    L. W. Conradt, Jr., Ramsey & Conradt, Terrell, for appellee.
   GUITTARD, Chief Justice.

After a default judgment, the defendant filed a petition for writ of error for review by this court and subsequently filed a cost bond. The transcript was tendered for filing more than sixty days after the petition was filed, but within sixty days from filing the bond. Plaintiff has moved for affirmance on certificate under rule 387, Texas Rules of Civil Procedure, on the ground that the sixty-day period prescribed by rule 386, Texas Rules of Civil Procedure, had expired before the transcript was tendered. We deny the motion on the ground that the sixty-day period did not begin to run until the defendant filed his bond.

This result follows from the provisions of rule 386 when taken in connection with rule 363, Texas Rules of Civil Procedure. Rule 386 requires the transcript to be filed within sixty days after “perfection of writ of error.” Rule 363 provides that a writ of error is “perfected” when the petition and bond are filed. Although rule 361, Texas Rules of Civil Procedure, provides that the bond shall be filed “at the time of filing the petition,” simultaneous filing is not required so long as both petition and bond are filed within the six-month period allowed by Texas Revised Civil Statutes Annotated, article 2255 (Vernon 1971). Peabody v. Marks, 25 Tex. 19, 23 (1860); Dodson v. Dodson, 277 S.W.2d 278, 279 (Tex.Civ.App.—Amarillo 1955, writ ref’d n. r. e.); Yellow Cab Corp. of Dallas v. Hill, 111 S.W.2d 1193, 1194 (Tex.Civ.App.—Dallas 1937, no writ).

The plaintiff-appellee also moves to dismiss the writ of error on the ground that the bond is insufficient because it is for only $250, rather than $500 as required by rule 354(a), Texas Rules of Civil Procedure. Appellant has moved to amend the bond by increasing the amount. He may do so by filing an additional bond under rules 365 and 430 of the Texas Rules of Civil Procedure. Accordingly, appellee’s motion to dismiss is overruled, provided appellant files his new bond within twenty days from receipt of notice from our clerk.

Motion to affirm on certificate overruled, motion to dismiss conditionally overruled, and motion to amend bond granted.


author: CADENA, Justice.

text:
    James DELANEY et al., Appellants, v. Rose E. ADKINS, Appellee.
    No. 15693.
    Court of Civil Appeals of Texas, San Antonio.
    May 25, 1977.

      William H. Price, San Antonio, for appellant.
    Abraham D. Ribak, San Antonio, for ap-pellee.
   CADENA, Justice.

Defendants, Jack Delaney and Jack Wy-soki, members of a partnership doing business as El Tropicano Motor Hotel, appeal from a judgment awarding plaintiff, Rose E. Adkins, $4,000.00 for injuries sustained by her when the doors of an elevator in defendants’ hotel closed on her while she was attempting to enter the cab.

Plaintiff filed her suit on March 3, 1975, and defendants were served with citation on March 7. On March 31, no answer having been filed by defendants, the trial court entered an interlocutory default judgment in favor of plaintiff on the question of liability, reserving the question of damages for determination at a later hearing.

Defendants filed an answer at 8:59 A.M. on May 9, and on that same day the court entered a final judgment awarding plaintiff $8,235.00. Later on the same day defendants filed a motion for new trial.

An amended motion for new trial was filed on May 23 and on May 28 the court entered an order setting aside the interlocutory default judgment and the final judgment. On June 14 plaintiff filed a motion to set aside the order granting a new trial, and on June 24 she filed an amended motion seeking the same relief.

After a hearing, the trial court, on July 28, entered an order which (1) decreed that the “Order signed by the Court on May 28, 1975, in this cause wherein the Court set aside an Interlocutory Judgment signed and entered in this cause on March 31,1975, and a Final Judgment signed and entered in this cause on May 9, 1975, should be, and the same is hereby set aside” and (2) ordered that the final judgment entered on May 9 be set aside.

On the same day, July 28, defendants filed a motion to set aside the order entered on July 28. On August 22 an order was entered which (1) denied defendants’ motion to set aside the order of July 28; (2) set aside the final judgment rendered May 9; and (3) declared that the interlocutory default judgment rendered March 31 remain in effect.

On January 26, 1976, the case was tried to a jury, with the special issues submitted being restricted to the question of damages. Based on the jury findings relating to damages, a judgment awarding plaintiff $4,000.00 was entered on February 12. On that same day defendants filed a “second amended motion” to set aside the interlocutory default judgment entered on March 31, 1975. This motion, which also sought a new trial, was overruled on April 8, 1976, and defendants then perfected this appeal.

It appears from the face of the record that the order entered on July 28 which, in effect, reinstated the interlocutory default judgment, is a void order.

Rule 329b, § 3, Tex.R.Civ.P., requires that all motions and amended motions must be determined within 45 days. The 45-day period began on May 23, 1975, the date on which defendants filed their amended motion for new trial, and ended on July 7. The only action taken by the court during the 45-day period was the entry of the order dated May 28, granting a new trial. On July 7 the case stood upon the docket for trial. The order attempting to set aside the order granting a new trial was not entered until July 28, well after the expiration of the 45-day period. The order of July 28 does not purport to be a judgment or order rendered after another trial. In effect, the order of July 28 is one overruling defendants’ motion for new trial some 66 days after it had been filed.

In Fulton v. Finch, 162 Tex. 855, 346 S.W.2d 823, 826-27 (1961), Justice Norvell said:

Here, the amended motion was determined within 45 days. It cannot be un determined after the 45-day period without destroying the rule. While there is a thirty-day provision contained in Rule 329-b, § 5 relating to judgments and orders overruling motions for new trial, there is no provision which can be construed as extending a trial judge’s authority over a motion [sic] granting a new trial for an additional thirty-day period. An order granting a motion for new trial must be set aside, if at all, within the 45-day period set out in Rule 329-b, § 3.
A judgment which discloses its invalidity upon its face anywhere at any time is a nullity and may be disregarded anywhere at any time.

Under the Fulton holding, the order attempting to reinstate the interlocutory default judgment was a nullity. On July 28 the trial court lacked power to set aside its order granting defendants a new trial. Therefore, at the second trial, all issues raised by the pleadings, including the issues relating to defendants’ liability, were pending on the court’s docket, and the trial court erred in limiting the second “trial” to the issues relating to damages.

The judgment of the trial court is reversed and the cause is remanded for new trial as to all of the issues.

      . The footnote contained in Justice Norvell’s opinion has been omitted.


author: OSBORN, Justice.

text:
    Joseph R. YORFINO, Jr., Appellant, v. Donald O. FERGUSON, Appellee.
    No. 6618.
    Court of Civil Appeals of Texas, El Paso.
    May 25, 1977.

      Jack M. McGinnis, Barry Snell, San Antonio, for appellant.
    W. Michael Murray, San Antonio, for ap-pellee.
   OPINION

OSBORN, Justice.

Under the Deceptive Trade Practices-Consumer Protection Act, the appellee recovered judgment against Joseph R. Yorfi-no, Jr., and Grady Haddox in connection with a work proposal submitted by Belco Contractors & Services. It was alleged that Yorfino and Haddox were partners in the Belco contracting firm, which performed work at Appellant’s home. Based upon jury findings that Yorfino committed certain deceptive trade practices resulting in $1,500.00 damages, judgment was entered for three times that amount, plus attorney’s fees as found by the jury. See Tex.Bus. & Comm.Code Ann. Sec. 17.50(b)(1). We affirm.

The Appellant did not file a motion for new trial. He presents two points of error contending that there is fundamental error because the judgment does not conform to the verdict, and because the judgment does not conform to the pleadings.

First, the damage issue, Special Issue No. 11, inquired as to the sum of money which would reasonably compensate Ferguson for his damages, “resulting from the deceptive trade practices of Joseph R. Yorfino, Jr. and Grady Haddox d/b/a Belco Contractors & Services, if any?” Appellant argues that since there was no finding of a partnership and no finding as to how much of the damages were caused by each Defendant, no joint and several judgment should be entered against each Defendant for the total damages found by the jury. Thus, he concludes that the judgment does not conform to the verdict, and that there is fundamental error under the holdings in Press v. Davis, 118 S.W.2d 982 (Tex.Civ.App.—Fort Worth 1938) aff’d in part and rev’d in part, Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438 (1940); City of San Antonio v. Haynes, 5 S.W.2d 205 (Tex.Civ.App.—El Paso 1928, no writ); Holmes v. Long, 207 S.W. 201 (Tex.Civ.App.—El Paso 1918, no writ).

We cannot agree with this contention. First of all, the jury found that only Joseph R. Yorfino, Jr., committed any deceptive trade practice, thus, all of the damages had to result from Appellant’s own conduct. Therefore, he is in no position to complain about a “joint and several judgment,” although the non-appealing Defendant might have made such a complaint.

With regard to the question of partnership, we conclude that there is an implied finding, and based upon such implied finding, the “joint and several judgment” is correct. The Appellee pled that Joseph R. Yorfino, Jr., and Grady Haddox were partners. Testimony was offered to support that pleading. No issue having been requested, and there being no objection to the charge for failure to include such issue, the issue of partnership was tried by consent to the Court, and based upon the “joint and several judgment” against both Defendants, there is an implied finding by the Court that a partnership did exist. Rule 279, Tex.R.Civ.P.; Barcheers v. Braswell, 548 S.W.2d 76 (Tex.Civ.App.—El Paso 1977, no writ). Clearly, under our statutes, partners are jointly and severally liable for the obligations of the partnership. Tex.Rev.Civ.Stat.Ann. art. 6132b, Sec. 15. Appellant’s Point of Error No. I is overruled.

Finally, the Appellant contends that because the judgment awarded attorney’s fees to Appellee’s counsel, rather than to the Appellee himself, there is fundamental error because there is no pleading to support such award directly to the lawyer who was not a party to the suit. Similar contentions have been presented to and rejected by the Courts of this State. See A. J. Rife Construction Co. v. Brans, 298 S.W.2d 254

(Tex.Civ.App.—Dallas 1956, writ ref’d n.r.e.); Goldberg v. Goldberg, 392 S.W.2d 168 (Tex.Civ.App.—Fort Worth 1965, no writ). We concur with those decisions and particularly the conclusion that Appellant is not in a position to complain about the award being to the attorney rather than the party to the suit. See Allison v. Brashear, 544 S.W.2d 492 (Tex.Civ.App.—El Paso 1976, no writ). The Appellant’s Point of Error No. II is overruled.

The judgment of the trial Court is affirmed.


author: COULSON, Justice.

text:
    Tom Watson WEAVER, Appellant, v. Dr. Raymond WITT, Appellee.
    No. 1535.
    Court of Civil Appeals of Texas, Houston (14th Dist.)
    May 25, 1977.
    Rehearing Denied June 15, 1977.

      Charles M. Haden, Brown & Haden, Houston, for appellant.
    Jay D. Hirsch, Marc A. Sheiness, Hicks, Hirsch, Glover & Cochran, Houston, for ap-pellee.
   COULSON, Justice.

This is an appeal from a summary judgment granted in favor of the defendant physician in a medical malpractice suit. Tom Watson Weaver sued Dr. Raymond Witt for injuries he allegedly sustained as a result of a hemorrhoidectomy performed by the defendant on or about February 1,1971. Plaintiffs original petition was filed on January 16, 1976. Defendant filed an answer asserting the affirmative defense that plaintiffs suit was barred by the statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5526(6) (1958). In response to an order sustaining special exceptions, plaintiff filed an amended petition in which he alleged fraudulent concealment as an avoidance of the statute of limitations defense. Defendant filed a motion for summary judgment supported by the affidavit of Dr. Witt that he had not conducted any medical examination or treatment of the plaintiff since January 22, 1973, approximately two years after the surgery was performed and three years before this suit was filed. No summary judgment proof was brought forward by the plaintiff. We affirm the summary judgment granted in favor of defendant.

We consider the facts of this case to be of particular significance to our decision. Therefore, we quote the following allegations from the plaintiff’s first amended original petition:

On or about February 1,1971, Plaintiff underwent treatment at the hands of the Defendant, including a hemorrhoidecto-my. The surgery was performed by the Defendant at Caney Valley Hospital, Wharton, Texas. In doing the surgery, Defendant failed to practice the standards of care recognized as acceptable in the Medical Community where he practiced and in so deviating from these standards of care he surgically traumatized the nerves, tissues and musculature of the sphincter muscles technically known as Hyrtl’s Sphincter, a band of muscular fibers in the rectum a few inches above the anus. As a consequence, Plaintiff has permanently lost control of his bowels. This necessitates great incapacity and inconvenience, even to the extent Plaintiff must constantly wear diapers to minimize the embarrassment, disablement, harassment, and inconvenience of uncontrollable bowels. Defendant assured Plaintiff that the operation was a success and did not make a frank disclosure concerning the iatrogenic injury performed upon Plaintiff by the Defendant; indeed, Defendant hid this from the Plaintiff. It was not until June, 1975, that Plaintiff learned the true facts concerning the medical negligence suffered by him at the hands of the Defendant which proximately caused his injuries as aforesaid, when Plaintiff’s family doctor told him that he had a permanent incurable disability as a result of said medipal negligence. It was then, and only then, the Plaintiff realized the consequences of the medical negligence involved in this suit.

As a general rule, a cause of action for medical malpractice accrues at the time of the commission of the act causing injury to plaintiff’s person. Nichols v. Smith, 489 S.W.2d 719, 722 (Tex.Civ.App.—Fort Worth 1973), aff’d, 507 S.W.2d 518 (Tex.Sup.1974). Thus, under the facts alleged here, this case would be barred by limitations after February 1, 1973, unless the plaintiff could, for some reason, avoid the operation of the statute. Plaintiff contends that the statute of limitations was tolled until June 1975 for two reasons: (1) the defendant’s fraudulent concealment of the true facts of the injury; and (2) the “discovery rule” of Gaddis v. Smith, 417 S.W.2d 577 (Tex.Sup.1967). Only fraudulent concealment was alleged in plaintiff’s first amended original petition, but we will consider the applicability of both theories. Cl Nichols v. Smith, 507 S.W.2d at 521 (discovery rule not urged in the court of civil appeals).

Fraudulent concealment does not create a new or a separate cause of action in and of itself; its only effect is to estop the guilty party from relying upon limitations as a defense until the time plaintiff either discovers the fraud, or could have discovered it by the exercise of ordinary diligence. Nichols v. Smith, 489 S.W.2d at 723.

Defendant’s motion for summary judgment and affidavit in support thereof established as a matter of law that plaintiff’s case was barred by the two year statute of limitations unless the statute was tolled for a part of the period between the date of the operation and the date of the filing of the suit. When the defendant established that limitations had run on the plaintiff’s case, he became entitled to the summary judgment that was granted him unless the plaintiff came forward at the summary judgment hearing with legitimate evidence showing at least prima facie the existence of all of the elements of the doctrine of fraudulent concealment. Nichols v. Smith, 489 S.W.2d at 723-24. As written in the supreme court opinion in Nichols v. Smith, 507 S.W.2d at 521:

Subject to a question as to the applicability of the discovery rule, which is discussed below, the defense of the statute of limitations is established by the record as a matter of law, and petitioners are relying on fraudulent concealment to avoid that defense. It was their burden, therefore, to come forward with proof raising an issue of fact with respect to fraudulent concealment. Since they failed to do so, the allegations of fraudulent concealment do not defeat respondent’s right to a summary judgment.

Plaintiff’s pleading of fraudulent concealment did not constitute any summary judgment proof. Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 543 (Tex.Sup.1971). Therefore, to the extent that plaintiff relies on fraudulent concealment to avoid the statute of limitations, summary judgment for the defendant was proper.

As a preface to our discussion of the discovery rule, we will resolve the issue of which party had the burden to prove the applicability of that rule. Plaintiff contends that having raised the issue of the discovery rule at the summary judgment hearing, the burden was on the defendant to negate the applicability of that rule, and plaintiff cites as authority for that proposition the court of civil appeals decision in Weaver v. Robinson, 536 S.W.2d 243, 246 (Tex.Civ.App—El Paso 1976), rev’d, 550 S.W.2d 18 (Tex.Sup.1977).

The El Paso Court of Civil Appeals based its holding in Weaver v. Robinson on the Texas Supreme Court decisions in Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.Sup.1975) and Oram v. General Am. Oil Co. of Texas, 513 S.W.2d 533, 534 (Tex.Sup.1974). Those cases are distinguishable from Weaver v. Robinson and the case presently before this court in that the plaintiffs in the supreme court cases were relying on suspension statutes to resist the affirmative defense of limitations. The Amarillo Court of Civil Appeals has held that the rule in Zale Corp. v. Rosenbaum applies only where the nonmovant interposes a suspension statute. Siegel v. McGavock Drilling Co., 530 S.W.2d 894, 897 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.). We agree with the Amarillo court, and we believe that the rule in Oram v. General Am. Oil of Texas is also limited to suspension statute cases.

In those rare instances where the discovery rule applies, the statute of limitations does not commence to run until the discovery of the true facts concerning the operation, or from the date those facts should, in the exercise' of ordinary care and diligence, have been discovered. Hays v. Hall, 488 S.W.2d 412, 414 (Tex.Sup.1973). ^%ith the exception of the element of fraud on the part of the physician, the discovery rule is essentially the same as the doctrine of fraudulent concealment; i. e., the statute of limitations is tolled because the plaintiff is unable to discover that he has been injured until a considerable time after the operation. As a practical matter, the burden of proof in discovery rule cases must be on the plaintiff because, ordinarily, only the plaintiff could prove the facts necessary to Í establish the rule. The defendant physician would have no personal knowledge of when the plaintiff discovered, or should have discovered in the exercise of ordinary care and diligence, the true facts concerning the operation.

We must, therefore, respectfully /^disagree with the El Paso court, and we 1 hold that plaintiff had the burden to prove the applicability of the discovery rule if he was to resist the limitations defense. We construe the discovery rule to be a plea in [confession and avoidance. As in fraudulent j concealment cases, once the defense of limi- ¡ tations is established by the record as a j matter of law, it is the plaintiff’s burden to j come forward with proof raising an issue of I fact with respect to the discovery rule. See Nichols v. Smith, 507 S.W.2d at 521. Plaintiff having failed to come forward with any ¡ competent summary judgment proof con- / cerning the discovery rule, summary judg-I, ment for the defendant was proper. Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d t at 543.

Under the facts of this case, we would affirm the judgment of the lower court even if plaintiff had come forward with competent summary judgment proof with respect to the discovery rule. In reversing the civil appeals decision in Weaver v. Robinson, the supreme court thoroughly reviewed the discovery rule cases and refused to extend the rule to a case where the alleged malpractice was misdiagnosis of a back ailment. See Robinson v. Weaver, 550 S.W.2d 18 (Tex.Sup.1977). The majority of the supreme court apparently wishes to restrict the discovery rule to those cases in which: (1) the plaintiff is unable to know of the negligent act; and (2) the fact of injury and the negligence of the physician can be established by physical evidence.

This plaintiff has failed to meet either of the criteria we believe to be implicit in the Robinson v. Weaver decision. First, plaintiff was able to know, and did know, immediately after the operation that he had been injured. Second, plaintiff’s condition does not necessarily prove that the defendant was negligent. Expert testimony would be required to establish that the defendant’s conduct fell below the standard of care which prevailed in the medical profession at the time and place of the alleged error. Our interpretation of the supreme court decision in Robinson v. Weaver requires us to hold that the discovery rule does not apply to this case.

All of plaintiff’s points of error have been carefully considered by this court and are overruled.

Judgment affirmed.


author: HALL, Justice.

text:
    H. C. YOUMANS et al., Appellants, v. Louis CORPORA, Appellee.
    No. 5736.
    Court of Civil Appeals of Texas, Waco.
    May 26, 1977.

      Joe B. Cannon, Cannon, Cannon & Reed, Groesbeck, for appellants.
    A. J. Novelli, Houston, for appellee.
   HALL, Justice.

Louis Corpora brought this suit against H. C. Youmans and Benny Hanna to recover on a check in the amount of $3,000.00 which is payable to Corpora and executed by the defendants. Corpora alleged that defendants agreed to buy some cattle from him and gave him the check as an earnest money deposit; that thereafter the price of beef dropped, and defendants refused to consummate the agreement and stopped payment on the check. Defendants answered with a general denial and a special plea that it was Corpora who breached the contract, and that he was unable to timely perform the agreement because his herd was quarantined as the result of an outbreak of brucellosis. After trial to the court without a jury, judgment was rendered that Corpora recover $3,000.00 from defendants. They appeal. We affirm.

Under the first two of their three points of error, defendants assert in effect that the evidence conclusively establishes that the cattle in question were under bru-cellosis quarantine when the contract was made and that for this reason, under the provisions of Article 7014f-l, Vernon’s Tex. Civ.St., the contract was illegal and therefore void. Under their third point they assert the contract should have been set aside because Corpora fraudulently failed to tell them about the quarantine when the contract was made. We overrule these contentions for these reasons: First, illegality of contract and fraud are both defenses which must be affirmatively pleaded in accordance with the provisions of Rule 94, Vernon’s Tex.Rules Civ.Proc., else they are waived. Neither was pleaded here. Secondly, although the moving and transportation of quarantined animals is prohibited by Article 7014Í-1, the statute does not declare the sale of such animals to be illegal. Lastly, the evidence does not conclusively show that Corpora knew of the quarantine when the contract was made, and it does not conclusively establish that the cattle were in fact under quarantine at the time finally agreed upon by the parties for delivery.

There is proof of these facts: Corpora owned cattle located on separate farms at Highbank, Texas, and Kosse, Texas. On February 9, 1974, the contract in question was made by which Corpora agreed to sell and defendants agreed to buy 100 steers and 160 heifers located at Highbank for a total price of approximately $75,000.00. On the same day, defendants gave Corpora the earnest money check. February 13th was the agreed date for delivery of the cattle. On February 12th, Hanna, on behalf of defendants, called Corpora and asked him if he could hold the cattle for a few more days. Corpora agreed to do so. But, at this time, Corpora told Hanna, “That I had a little bit of a problem. A mistake. The State Animal Health Department had sent me a notice telling me that I was quarantined on the Highbank place. The quarantine was [actually] in effect on the Kosse farm. And all I had to do was get that straightened out. And I talked to Dr. Cice-ros, I believe his name is, that they had the wrong place quarantined . . and I had to change the place.” Hanna said that would not be a problem, and told Corpora that defendants would get the cattle in about five days or a week. Ten days later, after defendants had failed to get the cattle, Corpora called Hanna and asked him when defendants intended to effect delivery. Hanna said he did not know. At this time, the cattle at Highbank were not under quarantine, and Corpora was ready, able, and willing to deliver. Later, defendants refused to accept the cattle. Corpora negotiated the earnest money check, but it was returned unpaid. Between February 9th and February 13th, 1974, and continuously thereafter into the fall of the year, the price of cattle suffered a steady decline.

This evidence raises fact questions on defendants’ asserted defenses, and also supports the implied findings of breach of the contract by defendants upon which the judgment is based.

The judgment is affirmed.


text:
    Richard F. LOOMIS, Jr., Appellant, v. BLACKLANDS PRODUCTION CREDIT ASSOCIATION, Appellee.
    No. 5742.
    Court of Civil Appeals of Texas, Waco.
    May 26, 1977.

      Logan Ford and Catherine A. Gerhauser, Burford, Ryburn & Ford, Dallas, for appellant.
    Joe B. Cannon, Cannon, Cannon & Reed, Groesbeck, for appellee.
   HALL, Justice.

Blacklands Production Credit Association brought this suit in Limestone County against Richard F. Loomis, Jr., to recover the balance allegedly due on a promissory note executed by Loomis which is payable to the Association. Loomis’s plea of privilege to be sued in Dallas County, the county of his residence, was controverted by the Association under the provisions of subdivision 5 of Article 1995, Vernon’s Tex.Civ.St. After a hearing without a jury, the plea of privilege was overruled. Loomis appeals. We affirm.

In its relevant parts, subdivision 5 of the venue statute provides that if a defendant has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place therein in the writing, then suit upon that obligation may be brought against the defendant in that county.

The note in question is payable “in the city in Texas in which said Association’s principal office is located.” Loomis contends this designation “does not fix the place of performance in Limestone County with sufficient certainty” to satisfy the particularity required by the venue statute. We disagree. It is the established rule that where a contract names or identifies a definite place for performance, extraneous proof is proper to establish the county in which the place is located. Bruce Campbell & Son Const. v. Britton Drive, 527 S.W.2d 852, 854 (Tex.Civ.App.—Waco 1975, no writ). The proof here shows that the Association’s principal office is and has always been located in Mexia, Limestone County, as provided in its Articles of Incorporation. This proof was admissible to show the location of the “definite place” named in the note for its payment, and, with the designation, meets the requirement of the statute.

Specifically, Loomis argues that because the Association could determine to change the location of its principal place of business, the designation in the note for place of payment is inherently uncertain, citing Dowd v. Dowd, 359 S.W.2d 287 (Tex.Civ.App.—Texarkana 1962, writ dism.); Yell v. Prock, 238 S.W.2d 238 (Tex.Civ.App.—Fort Worth 1951, writ dism.); and McManus v. Texas Development Bureau, 73 S.W.2d 655 (Tex.Civ.App.—Dallas 1934, no writ). In Dowd, the note sued upon was payable “at the office of the holder hereof as may be designated from time to time”; in Yell, the note was payable “to the order of the General Distributing Company, 2814 Main Street, Dallas, Texas, or at such other place as the holder hereof may from time to time in writing appoint”; and in McManus, the note was payable “at the office of the Texas Development Bureau, or bank, at Dallas, Texas, or at the place of residence of the owner, legal holder or assignee of note, at his option.” Each of these instruments was held not to name a particular place for payment within the meaning of the venue statute. Plainly, they do not do so, but leave the matter open for future determination. These cases do not meet our problem. On the other hand, and factually in point, in Cities Service Oil Co. v. Brown, 119 Tex. 242, 27 S.W.2d 115 (1930), the defendant signed an invoice payable “at the principal office of the company” at the time he received delivery of merchandise from the plaintiff company. The court said, “This contract on its face furnished the means by which the agreed place of payment could be determined,” and held that extraneous proof was properly admissible to identify it. Other cases in point are cited in Bruce Campbell & Son Const. Co. v. Britton Drive, supra.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    John R. WEATHERLY, Trustee, Appellant, v. Jacqueline BYRD, Guardian of the Person and Estate of Aileen Mitchell, Appellee.
    No. 17857.
    Court of Civil Appeals of Texas, Fort Worth.
    May 26, 1977.
    Rehearing Denied June 23, 1977.
    Kelley, Ryan, Merrill & Young, and C. 0. Ryan, Houston, for appellant.
    Leeper & Priddy, and Laurance L. Prid-dy, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

See 519 S.W.2d 504, Weatherly v. Byrd, the January 31, 1975 opinion of this court upon Weatherly’s plea of privilege appeal.

Venue was thereby held to have been properly retained in the Probate Court of Tarrant County, Texas. The case was styled as one brought by plaintiff-petitioner Jacqueline Byrd, Guardian of the Person and Estate of Aileen Mitchell, against John R. Weatherly, Trustee of at least a portion of Mrs. Mitchell’s estate.

September 3, 1976 was signed and entered appealable order of the Probate Court ordering and directing revocation of the revocable instrument of trust made by Mrs. Mitchell when she was able to effectively accomplish it. The order read: “It is therefore ORDERED, ADJUDGED and DECREED that Petitioner (Byrd) be and is hereby authorized and directed to revoke the Trust Agreement of September 24, 1971; and further that all costs in this proceeding be adjudged against JOHN R. WEATHERLY, Trustee.” Therefrom Weatherly appealed.

We affirm the judgment order.

Between date of the judgment and time for the submission of the case for hearing by this appellate court Mrs. Mitchell died. Weatherly filed instruments so informing the court and moved that the entire subject matter of the case be declared moot, with the case dismissed as ab initio; with rights of the guardian to reduce the property theretofore held by Weatherly as trustee thus denied.

We overrule Weatherly’s motion. As the ward upon whose person and estate there was in operation the guardianship administration by decree of the Probate Court Mrs. Mitchell was alive at time of the judgment order from which the appeal was taken. As will be hereinafter noticed the property of Mrs. Mitchell, which was formerly in trust, constituted property and estate for which her guardian, Mrs. Byrd, will be obliged to make accounting to the court. Texas Probate Code, V.A.T.S., § 230, “Care of Property of Estates”. See also 27 Tex.Jur.2d, p. 618, “Guardian and Ward”, § 354, “In general; Termination”. In view of the judgment order the rights of all parties thereunder would persist unless and until there might be reversal in some degree by this appellate court.

Insofar as the instant appeal and questions pertaining thereto are matters of concern the record is to be viewed as though Mrs. Mitchell were still alive. By reason of Mrs. Mitchell’s death questions might exist relative to matters pertaining to wills and to estates of decedents, but they do not obtain so as to have any effect in our consideration of the appeal.

The judgment order of the trial court, from which the appeal has been taken, amounted to an in rem adjudication, or confirmation, that the title to that trust property in the possession of Weatherly as trustee was vested in Mrs. Mitchell. Right of possession would probably belong to Mrs. Byrd, her guardian, though with this we are not presently concerned. 34 Tex.Jur.2d, p. 375, “Judgments”, § 361, “Particular proceedings in rem”. We do not mean to imply that title to the trust was not a part of Mrs. Mitchell’s estate before the adjudication; indeed we deem it to have been. Rev-ocability of the trust instrument, under the authority of which the trustee was in possession of trust property, was provided on its face and to revoke it was a contractual right of Mrs. Mitchell. As settlor (as well as beneficiary during her lifetime) Mrs. Mitchell’s right to revoke the trust did not cease upon her having thereafter become a person of unsound mind. Because she so became was the occasion for the appointment of a guardian and the administration in Probate Court. Upon such guardian having been appointed and qualified to act as such, the right to revoke the revocable trust became vested in the guardian as action for and in behalf of the ward. 27 Tex.Jur.2d, p. 458, “Guardian and Ward”, § 140, “Collection, recovery, possession, and management of property debts, and claims by guardian”; Texas Probate Code, V.A.T.S., § 233, “Collection of Claims and Recovery of Property”. By the guardian’s bond was the interest of the ward protected in the event the revocation of the trust be proved to have been contrary to such interest.

Concerning the right of a guardian to exercise the ward’s contractual right to revoke a trust: There being no provision of law requiring resort to the Probate Court, it would only be in an abundance of precaution that there would be necessity for authority to be sought from the Probate Court to make, or confirm, such character of revocation, for the right of the guardian existed whether there was or not any court order. This would especially pertain in circumstances such as those here presented where there is not denial of any fact of the trust or the instrument whereby it was created, nor denial that Mrs. Mitchell had the right to revoke it had her capacity persisted unimpaired.

Nevertheless we hold the Probate Court to have had jurisdiction to enter the order from which Weatherly, trustee, has appealed. If the guardian’s revocation absent support of a court order be ineffective (we herein hold it to have been effective) certainly would the order of the court be effective. In Texas the Probate Court is charged with duty to oversee and to supervise and direct, where there is necessity, the administration of estates. This necessarily includes action and authorization for action to protect the interests of a ward for whom the court has appointed a guardian. Persuasive is the statutory provision that for the guardian in this case to have released the ward’s authority of revocation would necessitate an order of the Probate Court. V.A.T.S. Art. 7425c, “(Trusts and Trustees) Release of powers of appointment,” § 8, “Release by guardian”.

In the instant case, in the petition for authority to terminate the trust, the guardian made presentation to the court that under the circumstances averred “it would be for the best interests” of the ward that the trust be revoked. It was to this representation that Weatherly, trustee, plead in the trial court and demanded and was granted trial. Upon evidence which supported the contention of the petitioning guardian the court found that it would be to the best interests of the ward that the trust be revoked. Actually we do not consider Weatherly to have possessed any justi-ciable interest.

In Minnesota the purpose of revocation of a trust on behalf of a ward, by the Probate Court, was considered. It was soundly held that it was not an exercise of jurisdiction over a trust, but the exercise of the ward’s right to prevent the trust from becoming irrevocable. Rickel v. Peck, 211 Minn. 576, 2 N.W.2d 140 (1942). It was further held in the case that the proper tribunal, whether a probate or equity court, has jurisdiction and authority to exercise in behalf of the incompetent the power residing in him to revoke a tentative or revocable trust created by him prior to incompetency.

In Texas we do not think a guardian encumbered by the legal burden to show that revocation was to the best interest of the ward in order to be entitled to revoke the revocable trust. We hold the contrary to be the law. To obtain the decision of the court afforded the guardian a kind of insurance, but was not actually necessary. It is not disputed that, antecedently, the guardian had done everything possible to revoke the trust and to give notice of such revocation to the trustee. The trust had been effectively revoked by notice brought home to Weatherly, as trustee, long prior to the time of the hearing in the trial court, and in law had been revoked from the time of the effective notice of revocation given him. 57 Tex.Jur.2d, p. 506, “Trusts”, § 113, “Repudiation”. Thereafter Mr. Weatherly, individually, has been exposed to liability in an in personam proceeding should one be instituted seeking judgment for damages against him.

On the appeal Weatherly, trustee, makes complaint because of certain findings upon fact made by the trial court, to-wit: that exercise of right of revocation of the trust would be to the best interest of the ward, and that placing the trust estate assets under the jurisdiction of the trial court (Probate) would eliminate potential conflict of interest of Weatherly as the trustee. We consider neither finding important or essential. In the event we err we make the further holding that the complaint made thereof on the ground of lack of basis in the evidence on trial is overruled.

Weatherly also makes complaint of the conclusions upon the law by the trial court: (1) that right of revocation could be made by the guardian when authorized to do so by the Probate Court, and (2) that guardian has the authority of that court to revoke the trust agreement of September 24, 1971. We hold that the guardian had the authority to revoke the trust even without the order of the Probate Court. In any event if there be necessity for any order it would be the Probate Court, charged with the duties of supervising the administration of the estate of a ward, which would have the jurisdiction. (Of course it might require proceedings in a District Court for the guardian to reduce the property to possession.)

The ultimate conclusion is that there was jurisdictional power of the trial court to enter .the order from which the appeal was taken, whether or not there was actual necessity therefor. Certainly was the revocation of the ward’s revocable trust made effective. Weatherly, as trustee, having actively become a party and participated in proceedings resulting in the order, is bound by the adjudication.

Complaints by points of error have been severally considered and all are overruled.

The judgment order is affirmed.


author: MeDONALD, Chief Justice.

text:
    Eugene W. DORSEY, Appellant, v. Pedro AGUIRRE, Jr., and Robert L. Dabney, Appellees.
    No. 5720.
    Court of Civil Appeals of Texas, Waco.
    May 26, 1977.
    Rehearing Denied June 23, 1977.
    Mark L. Delk, Dallas, for appellant.

      Harry J. Saginaw, Dallas, for appellees.
   OPINION

MeDONALD, Chief Justice.

This is an appeal by defendant Dorsey from default judgment against him for $26,578.17; plus $3,613.20 interest; plus $4,000. attorneys’ fees; plus 9% interest from September 14, 1976.

Plaintiffs Aguirre and Dabney, architects, sued Dr. Dorsey and a Dr. Thompson on a contract for architectural services designing facilities for medical offices and a hospital; alleged defendants owed a fee of $26,578.17 ($63,675. less $40,924. already paid) plus $8,000. attorneys’ fees. Dr. Dorsey filed no answer, and the trial court rendered interlocutory default judgment against him on July 16, 1976. Dr. Dorsey timely filed sworn motion to set aside default judgment in which he sought a new trial. Such motion detailed that Dr. Dorsey did not remember ever being served; that if he were served he had been pressed by the demands of his practice, • performed needed surgery on various patients, made emergency calls at the hospital, and filled in for various other doctors and worked until late at night, and had taken over part of the practice of a late associate whose death was sudden and unexpected. * * * That he was unaware that any process had been served upon him * * * until he received copy of the default judgment. He further asserted no lack of diligence or negligence on his part; that his failure to file an answer was an unintentional mistake and not an indifference on his part; that he obtained counsel and timely filed this motion; that he has a meritorious defense to the suit: 1) that he was merely acting as agent of the West Dallas Community Clinic, Inc., a nonprofit corporation; 2) that the contract sued on was conditional upon a loan being obtained, which was not obtained; 3) that plaintiffs agreed to accept $43,-000. as full settlement and that approximately $43,000. had been paid them; defendant further pointed out no delay would be caused in trial; that he would be ready whenever the case against Dr. Thompson was set; and offered to pay the expenses and court costs attendant to rendering the default judgment and setting it aside. Dr. Dorsey additionally filed an affidavit in support of his motion setting out most of the facts in the motion.

On August 20, 1976 plaintiffs nonsuited as to Dr. Thompson. On September 9, 1976 the court heard the motion to set aside default judgment. There was evidence that Dr. Dorsey was served at 1:10 P.M. on June 18, 1976. Dr. Dorsey testified he had no memory of being served but at that time he was late for a 1:00 P.M. operation, and was thinking of the procedures for the operation and of possible complications. It was stipulated by counsel that Dr. Dorsey had alleged a meritorious defense.

The trial court [overruled the motion to set aside and] rendered judgment making final the interlocutory default judgment against Dr. Dorsey.

Defendant appeals on 8 points contending: 1) the trial court erred in rendering the [final] default judgment; 2) the trial court erred in awarding attorneys’ fees.

The correct rule applicable to motions for new trial which seek to set aside default judgments entered on failure of a defendant to file an answer is stated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 as follows:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or a result of conscious indifference on his part, but was due to mistake or accident, provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”

Such case further holds the excuse “may be very slight” and “some excuse but not necessarily a good excuse” is the test, if the failure to file was unintentional, a meritorious defense exists, and no delay or injury is caused plaintiff. See: Ivy v. Carrell, Tex., 407 S.W.2d 212; Executive Press, Inc. v. Oak Cliff Mirror and Glass Co., Inc., Tex. Civ.App., (Waco) NWH, 478 S.W.2d 642.

Tested by the rule of Craddock, the record shows clearly that the failure of defendant to file an answer was not intentional or the result of conscious indifference, but was due to accident or mistake; that a meritorious defense exists; and that no delay, or injury is caused to plaintiffs.

Reference the attorneys’ fees, the contract sued on does not provide for attorneys’ fees and there was no testimony establishing the reasonableness of the attorneys’ fees. Williamsburg Nursing Home, Inc. v. Paramedics, Inc., Tex.Civ.App., (Houston 1) NWH, 460 S.W.2d 168.

The trial court erred in rendering the final default judgment and erred in awarding attorneys’ fees.

The default judgment is reversed and the cause remanded for trial on its merits.

REVERSED AND REMANDED.


text:
    J. Raymond JONES, Appellant, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Appellees.
    No. 19213.
    Court of Civil Appeals of Texas, Dallas.
    May 26, 1977.
    Jack D. Eades, Clark, West, Keller, Sanders & Butler, Dallas, for appellant.

      Albert Levy, McGuire, Levy, Collins & McCurley, Irving, Alfred L. Ruebel, Erhard, Cox & Ruebel, Dallas, for appellees.
   ROBERTSON, Justice.

Appellant, J. Raymond Jones, has moved to dismiss his appeal from a judgment which denied him leave to be substituted as plaintiff in a suit originally brought by a corporation in which he was a stockholder. Appellant’s appeal was based upon his alleged equitable right to protect his beneficial interest in the corporation when the corporation lost its right to sue for failure to pay its franchise taxes. Although the corporation’s suit was also dismissed by the judgment, only Jones appealed. Jones now informs us that the franchise taxes have been paid, and the corporation’s right to sue has been revived. He now seeks to have his appeal dismissed and the cause remanded for reinstatement of the corporate action. While we agree that appellant’s case is now moot, we cannot “remand” for reinstatement of the corporate suit because the corporation has not appealed from the dismissal of its action.

Since the corporation has revived its right to do business by paying the delinquent franchise taxes, the corporation now has the right to sue. Federal Crude Oil v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56, 62-63 (1932); Real Estate-Land Title & Trust Co. v. Dildy, 92 S.W.2d 318, 321 (Tex.Civ.App.—Austin 1936, writ ref’d). Any right of shareholder action is contingent upon a showing of corporate disability, Pratt-Hewit Oil Corp. v. Hewit, 122 Tex. 38, 52 S.W.2d 64, 66-67 (1932), and when that disability is removed, the shareholder’s suit is necessarily mooted. However, mere mootness of the shareholder suit does not authorize us to reinstate the corporate action. We cannot remand an action which is not before us. Reinstatement of the suit must be achieved on the corporation’s own initiative by refiling its suit in the trial court.

Finally, although appellant has moved to dismiss the appeal, we must dismiss as moot the motion for substitution, denial of which resulted in this appeal. The applicable rule is that when a cause becomes moot upon appeal, all previous orders and judgments must be set aside, and the cause, not merely the appeal, dismissed. Dismissal of the appeal alone would leave the trial court’s judgment outstanding and would amount to an affirmance. Lund v. Alanis, 384 S.W.2d 123 (Tex.1964); Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943). Here the corporation’s suit was dismissed for failure to pay franchise taxes, and we cannot disturb that dismissal because the corporation did not appeal. The only matter before us is appellant’s motion for substitution, and since that is now moot, it is dismissed.


author: DUNAGAN, Chief Justice.

text:
    William Grady WINNINGHAM and Taft Independent School District, Appellants, v. Stephen Wayne CONNOR et al., Appellees.
    No. 1011.
    Court of Civil Appeals of Texas, Tyler.
    May 26, 1977.

      F. Van Huseman, Maddin, White & Brin, Corpus Christi, for appellants.
    Fred R. Clark, Joseph L. Segrato, Groce, Locke & Hebdon, John D. Carlos, San Antonio, for appellees.
    James B. Langham, San Antonio, for amicus curiae.
   DUNAGAN, Chief Justice.

This is an appeal from the order of the trial court overruling appellants’, William Grady Winningham and the Taft Independent School District, pleas of privilege to be sued in San Patricio County. Appellees Stephen Wayne Connor and Debbie McNeil controverted the appellants’ plea of privilege.

This suit was filed on February 17, 1976, in the 166th Judicial District Court of Be-xar County, Texas, by Stephen Wayne Con-nor for injuries which he allegedly sustained while riding in an automobile driven by Donald McNeil, deceased. The automobile in which appellee Connor was a passenger collided with a Taft Independent School District bus driven by William Grady Win-ningham, killing Donald McNeil and injuring Wayne Connor. The collision occurred in San Patricio County, Texas. Appellee Connor filed suit against William Grady Winningham, Taft Independent School District and Debbie McNeil in her capacity as temporary administratrix and community survivor of the estate of Donald McNeil. Shortly thereafter, appellee McNeil filed a cross-action for indemnity or contribution against appellants Winningham and the Taft Independent School District. Subsequently, appellants, Winningham and Taft Independent School District, timely filed pleas of privilege to both the primary claim of appellee Wayne Connor and the cross-action of appellee McNeil. Both appellees Connor and McNeil filed timely controverting pleas relying on Section 4 of Art. 1995, Tex.Rev.Civ.Stat.Ann., and Art. 2212a, secs. 2(g) and (h), Tex.Rev.Civ.Stat.Ann.

A hearing was held on appellants’ pleas of privilege. At the close of the hearing, the court entered an order overruling the pleas of privilege in all respects. Winning-ham and the School District appeal from said order.

Appellants by their three points of error contend that the trial court erred in overruling their pleas of privilege (1) because there was no evidence as required by section 4 of Art. 1995, supra, that Debbie McNeil was a resident of Bexar County at the time this suit was filed, (2) because Art. 2212a secs, (g) and (h) “is not an applicable exception” to appellants’ “right to be sued in the county” of their residence; and (8) because “there was no evidence to support a finding of any exception to the general venue rule” under Art. 2212a.

Suit involving the same accident here in question was originally filed by Wayne Connor against Winningham and the Taft Independent School District in San Patricio County seeking damages as a result of the school bus and Volkswagen collision. The suit was tried to a jury verdict and finally ended in a non-suit after a motion for new trial was granted. Thereafter Con-nor instituted this suit in Bexar County.

Subsection 4 of Art. 1995, supra, provides as follows:

“Defendants in different counties. —If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. . . . ”

In order to come within this exception, a plaintiff has the burden of proving the following venue facts: (1) one defendant resides in the county of suit, (2) the party asserting his privilege is at least a proper party to the claim against the resident defendant, and (3) the plaintiff has a bona fide claim against the resident defendant. Cage v. Guerra, 511 S.W.2d 397 (Tex.Civ.App.—San Antonio 1974, no writ); H.E.B. Food Stores v. Mercado, 486 S.W.2d 591 (Tex.Civ.App.—Beaumont 1972, no writ). In the case at bar, it is the first of the three venue facts above stated (that one defendant resides in the county of suit) which appellants maintain appellees failed to establish at the plea of privilege hearing.

Appellants argue that Debbie McNeil’s residence must be shown at the time the case at bar was filed and that the deposition testimony shows only her residence in Bexar County prior to the date of the filing of this suit.

Appellees contend that Debbie McNeil was shown to be a resident of the county of suit, Bexar County, Texas, at the time the suit was filed.

In preparing for trial in the suit filed in San Patricio County there were certain written depositions taken. Plaintiff-appel-lee Connor and defendant-appellee McNeil in the present suit agreed that all of the written depositions previously taken may be used in this cause by all parties as though the same were originally taken in this cause. This agreement hereafter will be more fully stated. The appellants, Win-ningham and the Taft Independent School District, were not parties to the agreement by which testimony from Debbie McNeil was introduced.

Debbie McNeil’s attorney testified in person upon the hearing of the plea of privilege that he talked with her the day before by telephone at a San Antonio number and that she informed him that she was not able to come to court as she was in the late stages of pregnancy. She did not testify in person upon the plea of privilege hearing. Appellees rely in part upon the deposition testimony of Debbie McNeil which was read into evidence at the plea of privilege hearing. This deposition was taken for use in an earlier action filed in San Patricio County, Texas, involving identical parties and arising out of the same automobile accident as the case at bar. Debbie McNeil testified in the deposition above mentioned that she lived at 1515 Mission Road in San Antonio which we judicially know to be in Bexar County, Texas. No objection was made to this testimony being offered and received into evidence. Appellee McNeil’s attorney also testified that he had corresponded with her at the address of 1515 Mission Road, San Antonio.

Plaintiffs Wayne Connor and Debbie McNeil by stipulation on file in this cause entered into an agreement permitting the use by such parties of all the written depositions, including Debbie McNeil’s deposition, previously taken and used in the former trial of this case in Cause No. 17,080 styled Stephen Wayne Connor, et al v. Taft Independent School District, et al, in the District Court of San Patricio County, Texas, and that such depositions could be used in this cause by all parties as though the same were originally taken in this cause under the following agreement: “It is stipulated and agreed by and between counsel and the parties that the depositions may be used in the trial of this case, the same as if the witnesses were present in court and testifying in person.” It then was further stipulated and agreed by and between Con-nor and McNeil “that the depositions may be used in the trial of this case, the same as if the witnesses were present in court and testifying in person . . . that any and all objections to such deposition or any part thereof may be made and urged for the first time when same is sought to be offered in evidence on the trial of this cause whether such objection relates to substance at that time.”

Even though appellants were not parties to the stipulation and agreement of Wayne Connor and Debbie McNeil by which the deposition testimony of Debbie McNeil was introduced, since they failed to object to the testimony being offered and admitted, which was relevant and admissible, it was before the court for what it is worth. Beeler v. Harbour, 116 S.W.2d 927, 933 (Tex.Civ.App.—Fort Worth 1938, writ ref’d n. r. e.); 56 Tex.Jur.2d sec. 160 p. 502.

The law is well established in this state that residence once shown presumptively continues. Once appellee McNeil was shown to be a resident of Bexar County, this residence was presumed to continue until appellants showed otherwise, which they did not do. Appellee McNeil’s residence was established in her deposition as being in Bexar County; therefore, it is presumed to have continued to be in Bexar County on February 17, 1976, when the instant suit was filed and later on March 5, 1976, when appellee McNeil filed her cross-action against appellants. Eastex Poultry Co. v. Benefield, 268 S.W.2d 270, 273 (Tex.Civ.App.—Beaumont 1954, no writ); Deason v. Bryant, 263 S.W.2d 801, 805 (Tex.Civ.App.—Beaumont 1953, no writ); Stone v. Phillips, 171 S.W.2d 156, 159 (Tex.Civ.App.—Amarillo 1943) affirmed 142 Tex. 216, 176 S.W.2d 932; 21 Tex.Jur.2d Section 13 p. 73.

In view of all the facts and circumstances as disclosed by the record before us, we believe the evidence is sufficient to sustain venue in Bexar County under Subdivision 4 of Art. 1995, supra. Appellants’ Point of Error No. 1 is overruled.

By Points of Error Nos. 2 and 3 appellants assert that the trial court erred in overruling the pleas of privilege because Article 2212a, Subsections (g) and (h) are not applicable exceptions to a defendant’s right to be sued in the county of their residence and there is no evidence to support a finding of an applicable exception to the general venue rule. Article 2212a, Subsections (g) and (h) of the Texas Revised Civil Statutes Annotated provide as follows:

“(g) All claims for contribution between named defendants in the primary suit shall be determined in the primary suit, except that a named defendant may proceed against a person not a party to the primary suit who has not effected a settlement with the claimant.
“(h) This section prevails over Article 2212, Revised Civil Statutes of Texas, 1925, and all other laws to the extent of any conflict.”

The above quoted sections of the statute have recently been interpreted by this court in the case of Goodyear Tire & Rubber Co. v. Edwards, 512 S.W.2d 748 (Tex.Civ.App.—Tyler 1974, n. w. h.). In the cited case this court held that venue of a cross action for contribution filed by one non-resident defendant against another non-resident defendant must be maintained in the county of suit, because of the specific provisions of Article 2212a, aforesaid. In the Goodyear case this court stated, in part, as follows:

“At the time the trial court entered the order overruling the plea of privilege, both Harvester [non-resident cross-defendant] and the Paper Company [nonresident cross-plaintiff] were named defendants in the primary suit filed by the plaintiff. As we interpret the provisions of Article 2212a, the legislature expressly provided a special venue in all cases where one of the named defendants files a cross claim against another named defendant for contribution. While the statute does not use the word ‘venue,’ it provides that such claims ‘shall’ be determined by the same court hearing the primary suit. The statute is phrased in mandatory language. Venue is therefore lodged in the county where the court hearing the primary suit is situated.”

We further pointed out in the Goodyear case that Subdivision 30 of Article 1995 provides as follows:

“Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

It is our opinion that the case now before this court is indistinguishable from the Goodyear case and the claims for contribution under Article 2212a must be determined in the primary suit.

Having held that proper venue of the claim for contribution is in the primary suit, it is our opinion that the claim for indemnity is likewise to be determined in the same suit. It is clear that where a district court has acquired venue of a suit as to certain claims, other claims arising out of the same transaction and between the same parties, absent any showing that the other claims were brought fraudulently or for any purpose other than to litigate all claims in one suit, are properly before the district court in the primary suit. Brazos Valley Harvestore Systems, Inc. v. Beavers, 535 S.W.2d 797, 802 (Tex.Civ.App.—Tyler 1976, writ dism’d); Parkhill Produce Co. v. Pecos Valley Southern Ry., 348 S.W.2d 208 (Tex.Civ.App. —San Antonio 1961) affirmed 163 Tex. 88, 352 S.W.2d 723 (1961); Baxter v. Wetzel, 511 S.W.2d 540 (Tex.Civ.App.—El Paso 1974, no writ). This rule is based upon sound logic and is in accord with the well settled principle of avoidance of multiplicity of suits or claims. It is our view that Points of Error Nos. 2 and 3 should likewise be overruled.

The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Warren HUTT, Appellant, v. CITY OF ROCKSPRINGS, Appellee.
    No. 1017.
    Court of Civil Appeals of Texas, Tyler.
    May 26, 1977.
    Rehearing Denied June 23, 1977.

      C. H. Gilmer, Rocksprings, for appellant.
    Robert M. Huey, McCreary & Huey, Austin, for appellee.
   McKAY, Justice.

This case arises from a suit by the appel-lee, City of Rocksprings (the City) against appellant, Warren Hutt (Hutt) and R. M. Hutt, who is not a party to this appeal, for collection of delinquent taxes alleged to be due by them. The defendants answered that the City had “adopted and used an illegal, wrongful, arbitrary, discriminatory and confiscatory system of rendering and assessing taxes,” claiming that almost all the personal property subject to taxation by the City was omitted from taxation and that because of this “the defendants have suffered and will suffer and be assessed an excessive amount of tax, all of which is unlawful and discriminatory on the part of plaintiff and these defendants say that such excess is the sum of 30% . . . .” Upon conclusion of the testimony it was agreed by counsel, with concurrence of the court, that the case be withdrawn from the jury and determined by the court, resulting in a judgment for the City in the amount of $1,173.64. No findings of fact and conclusions of law were requested or filed.

Appellant brings four points of error. Point one in substance complains that the trial court erred in granting judgment for the City and overruling Hutt’s motion for new trial because the “uncontroverted evidence completely and conclusively establishes that none of the personal property in the City of Rocksprings [with a few exceptions] subject to taxation during the years in question was rendered for taxes . . .,” and because the City Tax Assessor-Collector Barbara Lomax admitted that a person rich in personal property but owning no land would not pay any tax if he did not render the property, the appellant claiming that such was in “direct contravention of constitutional and statutory provisions for equality and uniformity of taxation.” Points two, three and four complain of the trial court’s failure to grant continuances because of the absence of two subpoenaed witnesses and Hutt, who at the time of trial was required to carry out his duties as a justice of the peace. We will first view the evidence in light of point one.

Upon trial the chief witness was Mrs. Barbara Lomax, the City Tax Assessor-Collector. Mrs. Lomax admitted that she did not obtain individual personal renditions of property year by year, that she did not have the taxpayers sign a rendition form, and that the property was only valued at 30% of market value. She testified that she copied the valuations on the tax rolls from one year to another and that the only additions to the rolls were (1) sales of land taken from the deed records, and (2) improvements based on the owner’s statement of “cost per remodeling”. The personal property on the tax rolls consisted mainly of grocery store inventory, certain fixtures, and other items voluntarily rendered. No automobiles were on the rolls. Mrs. Lomax indicated that she had no idea of the total value of personal property in the city that was not on the tax rolls, but that it was “possible” that the inclusion of such would double the total valuation of the property already on the rolls. She also gave the following testimony:

“Q I will — at any rate what I am talking about — let’s just assume that we have a man that lives here in Rocksprings, and he has for quite a while. He rents a house. He has got a lot of furniture in it — expensive furniture. He has got a nice car. He has got a pick-up. He is a man that goes around and does work —electrician, perhaps a lot of tools and equipment — supplies. He wouldn’t pay a nickle [sic] city tax, would he?
“A Not personal.
“Q Not himself?
“A No, sir.
“Q Now, the man that owned the house, he would rent it and pay taxes on it?
“A Yes, sir.
“Q Here we have a man that is making a living, sending his children to school, say living in a nice house, got all of this property, making a lot of stuff that he uses in his work; he wouldn’t render anything if he didn’t own land, would he?
“A No, sir.”

As to the value of other real property in the city, Mrs. Lomax testified that the house of “Jimmy’s mother,” apparently meaning her mother-in-law was valued at “far above 30% of what it should be” and that she thought it was valued at $2,000.00. E. W. Snearly, a former mayor of the City testified that he had paid $5,000.00 for certain property in 1965, that it was originally valued at either $2,000.00 or $2,500.00 and had been raised $500.00, and that he figured “it is worth twice as much as when I bought it.” Hutt testified that according to his memory and tax renditions entered into evidence, that originally a building he owned was valued at $3,000.00 and his home was valued at $2,250.00; that he had protested these values based upon the value of a similar building, by crossing out the values, writing $2,500.00 and $2,000.00, respectively, on the rendition form and signing it; and that the Board of Equalization had changed the amounts back to the original values. Hutt admitted that the only personal property he owned that was rendered was some printing machinery.

In our opinion it is was improper and discriminatory for the City to omit from assessment almost all personal property except that which was rendered. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 380 (1955); City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 416-417 (1954); Bynum v. Alto Ind. Sch. Dist., 521 S.W.2d 656, 658-659 (Tex.Civ.App.—Tyler 1975, writ ref’d n.r.e.). It appears a deliberate decision was made to omit personal property items from the tax rolls. It was said in City of Arlington v. Cannon, supra:

“The deliberate adoption of a plan for the omission from the tax rolls of a large volume of property, personal or real, is in direct contravention of constitutional and statutory provisions for equality and uniformity of taxation. Article VIII, Section 1, Constitution of Texas, Vernon’s Ann.St.; Article 7174, Vernon’s Annotated Civil Statutes, 1925. .
“ . . . Once such a plan is put into effect the litigant may defeat the recovery of taxes only to the extent that they are excessive, and he must assume the burden of proving excessiveness. ‘Thus, the fact that other property in the city was not assessed for taxation presents no defense to the suit against petitioner for taxes not shown to be within themselves excessive.’ ”

However, even though it has been shown that the scheme was an illegal one, appellant here cannot gain relief unless he shows that such scheme worked to his substantial injury. Whelan v. State, supra; City of Arlington v. Cannon, supra; State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573 (1954); Bynum v. Alto Ind. Sch. Dist., supra. He must prove that because of the illegal plan his taxes are excessive or substantially higher than they would have been had the plan followed the proper statutory and constitutional guidelines. Whelan v. State, supra; Bynum v. Alto Ind. Sch. Dist, supra. This he did not do. The only evidence in the record concerning the value of personal property not on the tax rolls was testimony elicited from Barbara Lomax, Tax Assessor-Collector:

“Q Mrs. Lomax, do you have any idea of the value—the total value of personal property that is not on the tax rolls?
“A That is not on the tax rolls?
“Q That is right.
“A No.
“THE COURT: Here within the city of Rocksprings?
“THE WITNESS: I wouldn’t know.
“By Mr. Gilmer:
“Q Might it be equal to the amount that is on the roll? If you had it all there, would it double your evaluation or not?
“A Possible. There is such few personal property that is listed on there, like I say, grocery stores, or something that has an inventory like that is the only property we have.
“Q If you had it all on there, you do admit it would materially reduce the amount of tax that you would have to levy if you assessed all of the property within the city limits? There is no doubt about that, is there?
“A No sir, that is probably true.”

Appellant offered no evidence as to the value of the personal property not listed on the tax rolls; proof of the value of such personal property was necessary to prove substantial injury. Moreover, since no findings of fact and conclusions of law were requested or filed, it must be presumed that every fact issue which has support in the evidence was found in support of the judgment, and the trial court judgment must be affirmed if it can be upheld on any legal theory that finds support in the record. Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.); Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968). Point one is overruled.

Points two and three complain of the trial court’s refusal to grant Hutt a continuance because of the absence of two witnesses—Mary G. Lockley, who had been subpoenaed but failed to appear, and Otis Cowsert, Mayor, for whom process was issued but was returned without service because he was not found. The record does not reflect any such refusal by the court nor does it reflect a motion for continuance by affidavit as required by Rule 252, T.R. C.P. Such refusal, if any, to grant a continuance, if error, was harmless error. Rule 434, T.R.C.P. Points two and three are overruled.

Point four complains of the trial court’s refusal to grant a continuance because of Hutt’s absence from the trial as necessitated by his duties as justice of the peace which required him to preside over an inquest into a death. The record reveals no such refusal; in fact, Hutt testified at the trial. Rule 434, T.R.C.P. Point four is overruled.

The judgment of the trial court is affirmed.