text:
    J. D. BELCHER, Appellant, v. Manuel Villarreal RAMIREZ, et al, Appellees.
    No. 1342.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 22, 1979.

      Fred C. Auforth, Auforth, Keas & O’Reilly, Corpus Christi, for appellant.
    Richard Morales, Sr., Laredo, Guy Leland Watts, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

This is a venue case. Plaintiff Bill R. Akers filed suit in Nueces County, Texas, for certain damages to his automobile as a result of a collision in Webb County with two other automobiles driven by appellee Manuel V. Ramirez of Jim Hogg County and appellant J. D. Belcher, a resident of Webb County. Ramirez filed a plea of privilege seeking to have the cause transferred to the county of his residence. The trial court sustained Ramirez’ plea of privilege. Belcher appeals.

Plaintiff alleged several acts of negligence attributable to both defendants. Belcher answered by filing a general denial. Ramirez answered by filing a plea of privilege, a general denial and a cross-action against Belcher individually. Akers did not file a controverting affidavit.

Ramirez alleged, in his cross-action against Belcher, approximately the same facts that plaintiff had alleged, in essence, that Belcher negligently ran a stop sign and collided with the car Ramirez was driving; that the collision forced Ramirez into plaintiff’s lane of traffic; and that as a result of such collision, Ramirez sustained personal injuries and damages to his automobile. Ramirez’ cross-action did not seek contribution or indemnity from Belcher. Appellant Belcher answered this cross-action with a general denial.

At the venue hearing, the parties, in effect, agreed that Nueces County had no venue connection to plaintiff’s suit except that it was plaintiff’s initial choice of venue. Appellee Ramirez requested the court to transfer the cause to Webb County, the county in which the collision occurred, rather than to Jim Hogg County, the county requested in his plea of privilege. Although appellant Belcher resides in Webb County, he preferred to have the entire suit, or at least Ramirez’ cross-action, tried in Nueces County, notwithstanding Ramirez’ uncontroverted plea of privilege. After hearing the parties’ respective arguments, the trial court entered an order granting appellee’s plea of privilege, and transferring “the cause of action alleged against [Appellee Ramirez]” to Jim Hogg County.

Belcher appeals, presenting two points of error. In point of error number one, Belch-er contends that the trial court erred by transferring the entire cause to Jim Hogg County when it sustained Ramirez’ plea of privilege. In his second point of error, Belcher contends that Ramirez waived his right to assert a plea of privilege. Ramirez, on the other hand, insists that at the hearing before the trial court, appellant waived each of the contentions he now brings forward on appeal. The plaintiff, who did not contest appellee’s plea of privilege and who is not a party to this appeal, filed a “position letter,” indicating his willingness to try the suit “in any of the suggested counties,” and his intention to remain uninvolved in the venue dispute between appellant Belch-er and appellee Ramirez.

It is clear to us that the respective contentions advanced by both appellant and appellee in this appeal are predicated upon the assumption that, when the trial court sustained appellee’s plea of privilege, it transferred the entire cause to Jim Hogg County, not only the plaintiff’s suit against Ramirez, but the cause of action plaintiff Akers alleged against appellant Belcher and the cross-claim appellee Ramirez alleged against appellant Belcher. This is not what took place.

The trial court’s order stated, in relevant part, as follows:

“[A]fter hearing and considering such Plea of Privilege filed by Defendant, Manuel Villarreal Ramirez, and there being no controverting Plea filed by either Plaintiff, Bill R. Akers and Defendant, J. D. Berlcher (sic), and the evidence and argument of counsel thereon, is of the opinion that the Plea of Privilege be sustained.
IT IS THEREFORE ORDERED that Defendant's [Ramirez] Plea be sustained, and that the cause of action alleged against Defendant [Ramirez], in this suit styled and numbered above be transferred to the 229th District Court of the County of Jimm (sic) Hogg, Texas, the County of Defendant’s residence.” Emphasis supplied.

The order, which refers only to plaintiff’s cause of action against Ramirez, does not purport to affect venue in the main case against Belcher or the cross-claim by Ramirez against Belcher.

The trial court’s order conforms to that portion of Rule 89 concerning transfer of a cause in which the plea of privilege of only one of several defendants has been sustained and the cause is severable as to the parties defendant. See Robertson Distribution Systems, Inc. v. Butt, 482 S.W.2d 28, 30 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). The trial court’s order specifically ordered the clerk to transmit certified copies of the original papers, and not the original papers, filed in the cause. This was the correct procedure to follow when the entire cause is not transferred.

The right to file a plea of privilege in accordance with the rules as they now stand is a personal right as to each defendant, which may be exercised regardless of whether or not his co-defendant chooses to file a plea of privilege. By filing a plea of privilege, a defendant imposes upon the court the duty to determine the matter of venue as to him. Southport Petroleum Company v. Carter, 165 S.W.2d 85 (Tex.Sup.1942). See Robertson Distribution Systems, Inc. v. Butt, 482 S.W.2d 28 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). A plea of privilege is prima facie proof of defendant’s right to a change in venue. The issue of venue is joined only when the plaintiff files a controverting affidavit properly served on the defendant as provided by Rule 87, T.R.C.P. See Texas Highway Dept. v. Jarrell, 418 S.W.2d 486, 485-89 (Tex.Sup.1967). The plaintiff can, however, waive the right to controvert a plea of privilege or to object to any defects in the defendant’s plea. If the plaintiff fails to timely file a controverting affidavit, the court is without jurisdiction to enter any order other than an order transferring the cause to the proper court. Bogle v. Lauda, 127 Tex. 317, 94 S.W.2d 154, 155 (1936).

Where one of several defendants files a plea of privilege to be sued in the county of his residence, and the plea is sustained, and if the cause of action against the several defendants is severable, or joint and several, the trial court should retain jurisdiction over the action insofar as it concerns the defendants who have not contested venue and transfer the suit insofar as it concerns the defendant whose plea is sustained. On the other hand, where a plea of privilege is filed, if the cause of action is a joint cause of action growing out of joint liability of all the defendants, the suit must be transferred as an entirety to the county of the residence of the defendant whose plea is sustained. Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65 (1942); Hickman v. Swain, 106 Tex. 431, 167 S.W. 209 (1914); Comer v. Brown, 285 S.W. 307 (Tex.Sup.1926); Robertson Distribution Systems, Inc. v. Butt, 482 S.W.2d 28, 30 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). See 4 McDonald, Texas Civil Practice, § 4.57, pp. 619-21 (1962).

Here, in absence of a controverting affidavit or any other proper attack upon appellee Ramirez’ plea of privilege, the only issue properly before the trial court was that of determining what portion of the entire cause should be transferred to Jim Hogg County. The allegations in plaintiff’s petition establish that the plaintiff’s claims against each defendant were severa-ble. The trial court, therefore, properly severed plaintiff’s main suit by ordering the transfer of plaintiff’s cause of action against appellee Ramirez to the county of his residence. Since appellant Belcher did not seek to be sued in the county of his residence, the issue of venue as to plaintiff’s cause of action against him was never properly raised. Absent an agreement by all of the parties to try the suit in a particular county, the trial court’s jurisdiction to consider venue was limited to the question of proper venue of plaintiff’s cause of action against appellee Ramirez.

The only other issue remaining concerns the propriety of maintaining venue in Nueces County as to appellee’s cross-claim against appellant Belcher. The rule is, where plaintiff alleges severable causes of action against co-defendants, a transfer of the case as to the defendant asserting a plea of privilege will not carry with it a severable cross-claim filed by the transferred defendant against his co-defendant. See Jackson v. United Producers’ Pipe Line Co., 33 S.W.2d 540, 545 (Tex.Civ.App.—Fort Worth 1930, writ ref’d); 1 McDonald, Texas Civil Practice, §§ 4.39, 4.57 (1965); 52 Tex. Jur.2d, Set Off, Counter Claims, §§ 51, 52 (1964).

Although we think that considerations of judicial economy and convenience to the parties should warrant only one trial of all of the issues presented by plaintiff’s main action and appellee’s cross-claim, the trial courts as well as the appellate courts have no other choice than to permit multiple trials in venue cases such as these until the Legislature simplifies the complicated venue laws. The need to remove the large volume of venue cases from our trial and appellate dockets was recommended by the Chief Justice of the Supreme Court of Texas in his address to the Sixty Sixth Legislature on January 31, 1979. The Judicial Section of the State Bar at its annual meeting in Arlington, Texas, on September 29, 1978, unanimously endorsed legislation changing and simplifying the venue laws in Texas. Until these changes are accomplished, we urge the attorneys in the 13th Supreme Judicial District to voluntarily curtail the filing of suits in non-resident counties such as this case or filing pleas of privilege and/or appealing the same in other cases except where the administration of justice can be served in no other way.

Accordingly, the trial court’s order transferring plaintiff Akers’ severable cause of action against appellee Ramirez to Jim Hogg County is hereby affirmed. Plaintiff Akers’ cause of action against defendant Belcher will remain in Nueces County as well as Ramirez’ cross-action against Belch-er.

      . “Venue

      The congestion in the dockets of the courts and jury time could be substantially reduced by a revision of the venue statutes.
      In simple language, venue means a determination as to where a case will be tried. Generally a person may be sued only in the county of his residence. Your Article 1995 provides many exceptions; and the adjudication of these exceptions generate much litigation.
      It is a gross extravagance of the time of jurors, litigants, of courtroom facilities, and the judiciary’s docket for there to be two separate jury trials in these cases.
      Where venue is contested, and it often is, the first trial is to determine where the case is to be tried; i. e., whether the plaintiff can prove by a preponderance of the evidence that the defendant was at fault in a particular county. The result of that trial is appealable. After some two years, that matter of where the case is to be tried is finally settled. Then the parties go back and try the case to a second court and jury, — and the appeal starts over again.
      The right of a person to be sued in his or her home county is an important one. But like other matters, the proof, or establishment, of that right, and related venue procedures, have gotten out of hand.
      We need your help to remove this large volume of cases of venue from our dockets, and to speed to adjudication of cases.”


source: Caselaw Access Project

author: WARREN, Justice.

license: Public Domain

text:
    HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellant, v. SHELL PIPELINE CORPORATION, Appellee.
    No. 17287.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 22, 1979.
    Rehearing Denied March 22, 1979.

      Joe Resweber, County Atty., J. Robert Hobgood, Asst. County Atty., Houston, for appellant.
    Vinson & Elkins, W. Allyn Hoaglund, Houston, for appellee.
   WARREN, Justice.

The Harris County Flood Control District appeals from a judgment of the district court awarding damages to Shell Pipe Line Corporation for costs of relocating its pipelines in order to accommodate the reconstruction of a drainage ditch by appellant.

The ultimate question is whether appellee is entitled to damages for the expense of relocating its pipelines, but the primary questions are: (1) whether appellant’s deepening of a drainage ditch at its intersection with a public roadway was a purpose for which the road was dedicated to the public and (2) whether appellant or appellee first acquired an interest in the land encompassed by the easement.

The case was tried to the court without a jury, and the court filed findings of facts and conclusions of law.

It is undisputed that South Acres Drive runs east and west, that the Shell pipelines run east and west, and that these pipelines are situated under the north side of the roadbed of South Acres Drive’s dedicated right of way.

The drainage ditch in issue, hereinafter referred to as C-124 drainage ditch, runs approximately north and south and intersects the Shell pipelines and South Acres Drive at or near their intersection with Second Street. A bar (barrow) ditch runs parallel with South Acres Drive and the Shell pipelines on the north side of South Acres Drive. The Flood Control District, to prevent flooding along Sims Bayou (in an area estimated to be 300 to 400 acres) encompassing 500-600 feet on either side of Sims Bayou for a distance estimated to be one and one half miles, determined that it should widen the drainage ditch and deepen it from eight to twelve feet. The deepening of the ditch to twelve feet made it necessary for Shell to relocate or remove its pipelines.

The land on which South Acres Drive is located was dedicated to public use for “road and street” purposes by South Acres, Inc., on August 4, 1928.

On January 5, 1929, Shell Pipe Line Corporation acquired an easement for pipeline purpose from San Jacinto Trust, the successor in interest to South Acres, Inc., subject only to the dedication of South Acres Drive for “road and street” purposes.

Since that time appellee maintained a 10" and 6" pipeline under the easement tract until December of 1975, when they were relocated pursuant to an agreement between appellant and appellee.

In 1937, the legislative passed article 8280-120 of V.A.C.S. creating the Harris County Flood Control District.

Appellant contends that the court erred in finding that the widening and deepening of the drainage ditch was not a use for which South Acres Drive had been dedicated to the public.

The court found that the purpose of the flood control improvements was to facilitate the flow of surface water in furtherance of flood control for an area of 300 acres in Sims Bayou Drainage area, that the project did not encompass work or improvements to the bar ditch which exists alongside and parallel to South Acres Drive, and that the work performed was not a use of the South Acres Drive right of way for “road and street purposes.”

The 14th Amendment to the United States Constitution and Article I, Section 17 of the Texas Constitution prevents any governmental taking, damaging, destroying or applying to public use any property without adequate compensation being made. Sinclair v. State, 322 S.W.2d 58 (Tex.Civ.App.—Ft. Worth 1959, no writ).

An easement is an interest in land for which an owner is entitled to compensation if it is taken. McLennan County v. Sinclair Pipe Line Company, 323 S.W.2d 471 (Tex.Civ.App.—Waco 1959, ref. n. r. e.).

The only witness testimony received by the trial court concerning the facts was by T. R. Langford, a registered civil engineer employed by the Harris County Flood Control District as an engineering division manager, and by Victor August Couch, Chief Engineer for Harris County Flood Control District. Mr. Langford testified that the C-124 drainage ditch ran north and south generally, guessed that it was about a mile and one half long, and that it lay south of Sims Bayou; that the purpose of deepening and widening this C-124 ditch was to increase its capacity; that the ditch trans-versed underneath a bridge on South Acres Drive and continued north into Sims Bayou; and the ditch drained several hundred acres.

Mr. Couch testified that the C-124 ditch ran north and south and is south of Sims Bayou, commencing 800 or 1000 feet north of Allen-Genoa Road and ran in a northerly direction for 6000 feet. That the ditch would be responsible for the drainage of approximately eight plus million square feet, between 300-400 acres. The area to be drained would encompass 500-800 feet on either side of the ditch. Before the project the C-124 ditch was 5 to 6 feet deep and about 20 to 25 feet wide at its intersection with South Acres Drive. After the project was completed the ditch at South Acres Drive was 12 to 13 feet deep and about 50 feet wide. The construction at South Acres Drive included the removal of the pipe culverts, concrete hard walls, dirt and the construction of a new concrete bridge on the bar ditch alongside South Acres Drive. The only work done on this project was the outfalls. A corrugated pipe was put from the flow line down into the C-124 ditch so that roadside bar ditch wouldn’t deepen itself by eroding because of the differences in elevation. There was not any work done on the bar ditches by the Flood Control District that was encompassed within this project.

The parties stipulated that the purpose of the project was to improve and facilitate the drainage of water in the immediate and general vicinity of the Sims Bayou Drainage area and the existing drainage ditch. The immediate vicinity includes drainage ditches along and parallel to South Acres Drive and did and will continue to empty into the aforesaid intersecting flood control ditch, but are not a part of flood control construction work.

Appellant relies on Hill Farm v. Hill County, Texas, 436 S.W.2d 320 (Tex.1969). The appellant in that case constructed a waterline beneath a county road without any authority other than the permission of the county commissioner in that precinct. The county had acquired the easement by prescription. The Supreme Court of Texas affirmed the right of the county to require appellant to remove the pipeline for the reason that it constituted an invasion of the public easement. This case is not authority for the proposition that our appellee, which possessed a written easement from the landowner, infringed on the public easement and should be required to remove or relocate the pipeline without compensation.

A review of the record shows that the C-124 drainage ditch was enlarged for the purpose of alleviating flood conditions along the course of the C-124 ditch. Any use or benefit to South Acres Drive would be minute and coincidental. There is no evidence in the record that the construction was for the purpose of or in fact did alleviate flooding of South Acres Drive. The record supports the trial court’s finding of fact # 15 that the District’s project was not a use of the South Acres Drive right of way for “road and street purposes.” Accordingly, appellant is liable for the cost expended by appellee in relocating this pipeline.

Because of the disposition of this issue any question of whether appellant was “first in time” is immaterial.

Affirmed.


author: RAY, Justice.

text:
    Mary Jane WILLIFORD, Appellant, v. Dorothy SHARPE, Appellee.
    No. 8609.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 27, 1979.

      Stephen E. Gossett, Law Offices of Ernest W. Kuehne, Jr., Dallas, for appellant.
    Ron L. Hundley, Carden, McKnight & Hundley, Dallas, for appellee.
   RAY, Justice.

This appeal concerns a claim for alienation of affections. Appellant, Mary Jane Williford (Williford), brought suit against appellee, Dorothy Sharpe (Sharpe), seeking damages for personal injuries growing out of an alleged assault and battery upon Wil-liford by Sharpe. Sharpe filed a cross-action against Williford, seeking damages for alienation of affections. The case was tried to a jury which rendered a verdict against Williford on the assault and battery claim, and in favor of Sharpe against Williford for alienation of affections. The jury awarded damages to Sharpe in the sum of $35,000.00, representing $25,000.00 actual damages and $10,000.00 exemplary damages. Appellant Williford filed her motion for new trial and request for remittitur. The trial court overruled Williford’s motion for new trial conditioned upon the remittitur of $10,-000.00 of actual damages by Dorothy Sharpe. Williford has perfected her appeal and submits one point of error for our consideration. Dorothy Sharpe complains of the trial court’s order requiring a remitti-tur.

Appellant Williford’s point of error is as follows:

“The award of the jury as given in answers to Special Issues Nos. 8 and 11 (Tr. 57) was manifestly too large and was grossly excessive and tends to show that the award was the result of passion, prejudice or other improper motive. The evidence is insufficient to support the award and is against the great weight and preponderance of the evidence.”

Appellant’s point of error is multifarious and should not be entitled to consideration. Tex.R.Civ.P. 418; Furr v. Hall, 553 S.W.2d 666 (Tex.Civ.App. Amarillo 1977, writ ref’d n. r. e.). However, since appellee has not complained, we will proceed to consider the various contentions of appellant, even though we are not required to do so under the circumstances.

On the afternoon of May 30,1976, George Sharpe (George), husband of Dorothy Sharpe, invited Mary Jane Williford to the Sharpe residence for a swimming party. Dorothy Sharpe was out of town and George did not expect her to return until that evening. The party did not materialize and ultimately, Williford was the only guest. George and Mary Jane had a few drinks, Mary Jane went swimming in the nude and then the two of them had hamburgers and more drinks at a patio table located in the backyard of the Sharpe residence. Upon Dorothy Sharpe’s unexpected early arrival at home, a series of events transpired which resulted in Mrs. Sharpe pushing Mary Jane Williford into the swimming pool, causing personal injuries to Appellant Williford. Dorothy Sharpe had found her husband of more than fifteen years sitting on the patio beside the swimming pool with Mary Jane Williford, both of whom were nude beneath short swim robes. Dorothy Sharpe requested that Appellant Williford return the short swim robe, which belonged to Dorothy Sharpe, and that she leave her home. Dorothy then retreated inside her home, but subsequently reappeared and pushed Appellant Williford into the swimming pool as Williford approached her.

At the trial, Williford admitted that she had been having sexual relations with George since early 1972. Williford testified that she was divorced in March of 1972 and while working for George, had begun an affair with him. Appellant testified that the purpose of her beginning the affair with George was that she felt that it might be advantageous to her employment, but that she continued the affair long after she and Mr. Sharpe no longer worked together. Williford stated that she had been to Dorothy Sharpe’s home, swimming nude in her pool with George Sharpe on several occasions prior to May 30, 1976. She further testified that she was aware that Dorothy Sharpe was in poor health and that on occasions when Dorothy was hospitalized, Mary Jane would sleep in Dorothy’s bed with George. Williford also admitted that she had made a request of Dorothy’s adult daughter to take pictures of her and George in the nude.

Dorothy Sharpe testified that she was hospitalized shortly after the incident and that it became necessary for her to see a marriage counselor and also a psychiatrist. The testimony reveals that she not only suffered mentally, but physically as the result of her marital difficulties resulting from the actions of Appellant Williford.

Appellee Sharpe was in the process of taking her bar exam to become an attorney, when in the middle of the exam, she was served with citation in the civil action brought by Williford for damages for assault and battery. She testified that because of the shock she suffered from the incident, she failed the remainder of the exam to such an extent that her overall grade was not passing.

Dorothy’s friends testified that following the poolside incident Dorothy had been depressed, very upset, suffered from tension, crying and on occasions was hysterical. We think the medical testimony is clear that Mrs. Sharpe suffered from diverticulitis and that such physical problem was aggravated by her distraught mental condition. Mrs. Sharpe and her physician testified that mental aggravation aggravated her abdominal problem. The record is replete with testimony concerning the traumatic effects upon Mrs. Sharpe when she learned of the affair between her husband and appellant.

We have reviewed the entire record in this case and have concluded that the evidence supports the jury’s verdict and that the verdict is not excessive. Appellant’s single point of error is overruled.

Appellee complains of the remittitur of $10,000.00 directed by the trial court and contends that she is entitled to the $25,-000.00 actual damages which the jury awarded to her. We agree.

The trial court instructed the jury, without objection from appellant, that in arriving at the actual damages, the jury could take into consideration Mrs. Sharpe’s loss of her husband’s affection, society, comfort, services, financial support and companionship, as well as for humiliation, anguish, impaired reputation and social disgrace suffered in consequence of the acts of Mary Jane Williford, together with loss of consortium. The conscience of this Court is not shocked by the jury’s award of $25,000.00 actual damages. Who can say what a good marriage is worth? Is it worth $100.00 per month, $150.00 per month, $1,000.00 per month or more? There has not yet been devised a yardstick by which the loss of love and affection wrought by a happy marriage can be measured. Certainly a jury is in a better position, as a cross-section of the conscience of the people of this State, to determine the value of the loss of such a fragile item as a true marriage. In this case, both of the Sharpes had previously been married and the instant marriage had been good for approximately sixteen years so far as known by Mrs. Sharpe. The love and happiness emanating from a wholesome and enduring marriage cannot be replaced by any sum of money. However, the law requires that mortals determine the amount of damages suffered for the loss of a spouse’s affection when those affections have been alienated by another person. The record shows that Williford was 42; that Appellee Sharpe was 52 years of age and her husband 58 years of age when Mrs. Sharpe discovered the affair. Mr. Sharpe’s life expectancy, together with that of Mrs. Sharpe, would have probably afforded them almost as many years of nuptial union in the future as there had been in the past. We believe the loss of the attendant benefits of a good marriage in this case is worth $25,000.00.

Marriage is not a union merely between two creatures — it is a union between two spirits; and the intention of that bond is to perfect the nature of both, by supplementing their deficiencies with the force of contrast, giving to each sex those excellencies in which it is naturally deficient; to the one, strength of character and firmness of moral will; to the other, sympathy, meekness, tenderness; and just so solemn and glorious as these ends are for which the union was intended, just so terrible are the consequences if it be perverted and abused; for there is no earthly relationship which has so much power to ennoble and to exalt. Marriage must be watered by the showers of tender affection, expanded by the cheering glow of kindness, and guarded by the impregnable barrier of unshaken confidence. If the nuptial union is to last, virtue must be the bond that ties it fast.

Appellant pierced the sanctity of appel-lee’s marriage and dissolved appellee’s domestic tranquility like acid on soda. Though the conduct of appellee’s husband is inextricably tied to that of appellant, it is Mrs. Williford who must bear the burden of paying for the damages done.

Our examination of the record in this case leads us to conclude that the evidence supports the jury’s finding that it would take $25,000.00 to fairly and reasonably compensate Dorothy Sharpe for the alienation of affections of her husband and that it would be manifestly unjust to require a remittitur. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959). Accordingly, the remittitur of $10,000.00 actual damages required by the distinguished trial judge is set aside and such sum is restored to the amount of the judgment as originally entered by the trial court. As thus reformed, the judgment of the trial court is affirmed. Tex.R.Civ.P. 328 and 439; Butane Wholesale Company v. Buehring, 325 S.W.2d 173 (Tex.Civ.App. San Antonio 1959, writ dism’d); 4 Tex.Jur.2d, Rev., Part 2, Appeal and Error—Civil Cases, Sec. 903; 4 McDonald’s Texas Civil Practice, Sec. 18.22, p. 300.


author: CORNELIUS, Chief Judge.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Kelsey VOLENTINE, d/b/a Volentine Automotive, Appellee.
    No. 8624.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 27, 1979.
    Rehearing Denied March 27, 1979.

      Michael Stevens, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellant.
    Sherman A. Kusin, Harkness, Friedman, Kusin <& Hooper, Texarkana, for appellee.
   CORNELIUS, Chief Judge.

This case involves the interpretation of a garage liability insurance policy. Kelsey Volentine, a garage owner and the insured under the policy, sought a declaratory judgment that the insurer, Travelers Insurance Company, was obligated to defend him in a lawsuit brought by Bobby Garrard. Volen-tine had performed a “valve job” on Gar-rard’s automobile, and Garrard sued Volen-tine claiming that by reason of defective performance of the work a valve keeper failed to function, resulting in the destruction of the entire engine. Both Volentine and Travelers filed motions for summary judgment, and the motion of Volentine was granted. Travelers brings this appeal, contending that the policy afforded no coverage for the damages sought by Garrard, and consequently it had no obligation to defend Garrard’s suit.

The insurance policy contained the following provision:

“I. Garage Liability
Coverage G-Bodily Injury Liability
Coverage H-Property Damage Liability
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage G. bodily injury or
Coverage H. property damage
to which this insurance applies, caused by an occurrence and arising out of garage operations, including only the automobile hazard for which insurance is afforded as indicated in the declarations, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”
“ ‘occurrence’ means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured

First, Travelers argues that the general coverage provisions of the policy exclude Garrard’s claim because his damages were not caused by an accident, and the policy provides coverage only for liability due to an “occurrence,” which the policy defines as an accident. We cannot agree. The term accident, as used in a policy of this type, means an unexpected, unforeseen or undesigned happening or consequence from either a known or unknown cause. Employers Casualty Company v. Brown-McKee, Inc., 430 S.W.2d 21 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.); Bundy Tubing Company v. Royal Indemnity Company, 298 F.2d 151 (6th Cir. 1962); Hauenstein v. St. Paul-Mercury Indemnity Company, 242 Minn. 354, 65 N.W.2d 122 (S.Ct.1954). Although the allegedly defective performance of the work itself might or might not be considered an accident (see Womack v. Employers Mutual Liability Ins. Co. of Wisconsin, 233 Miss. 110, 101 So.2d 107 (S.Ct.1958)), yet the destruction of the entire engine as a result of the malfunction of one of the repaired valves was certainly unexpected and unintended, and constituted an accident within the meaning of the policy provisions.

Second, Travelers urges that coverage was specifically denied by the policy exclusions. Among those exclusions is the following:

“This insurance does not apply, under the Garage Liability Coverages:
(k) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith;”

Travelers contends that exclusion (k) denies coverage for all damages due to work performed by the insured, or materials, parts or equipment furnished in connection therewith. But the language of the exclusion does not refer to damages due to work performed; it refers to damages to the work performed. Similar and even identical policy provisions have on many occasions been construed by the courts, and it has been uniformly held that a liability policy containing such an exclusion does not insure the policyholder against liability to repair or replace his own defective work or product, but it does provide coverage for the insured’s liability for damages to other property resulting from the defective condition of the work, even though injury to the work product itself is excluded. Haugan v. Home Indemnity Company, 197 N.W.2d 18 (S.Ct.S.D.1972); Hartford Accident & Indemnity Co. v. Olson Bros., Inc., 187 Neb. 179, 188 N.W.2d 699 (S.Ct.1971); Engine Service, Inc. v. Reliance Insurance Company Wyo., 487 P.2d 474 (1971); Bryan Const. Co. v. Employers’ Surplus Lines Ins. Co., 110 N.J.Super. 181, 264 A.2d 752 (S.Ct.1970); Dakota Block Co. v. Western Casualty & Surety Co., 81 S.D. 213, 132 N.W.2d 826 (S.Ct.1965); Bundy Tubing Company v. Royal Indemnity Company, supra; Kendall Plumbing Co. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 370 P.2d 396 (S.Ct.1962); Volf v. Ocean Accident & Guarantee Corporation, 50 Cal.2d 373, 325 P.2d 987 (S.Ct.1958); Hauenstein v. St. Paul-Mercury Indemnity Company, supra; Franks v. Guillotte, 248 So.2d 626 (La.Ct.App.1971); Vobill Homes, Inc. v. Hartford Accident & Indemnity Co., 179 So.2d 496 (La.Ct.App.1965); Heyward v. American Casualty Co. of Reading, Pa., 129 F.Supp. 4 (E.D.S.C.1955). The decisive question then becomes: What was Volen-tine’s work product? The entire engine, or merely the valve repair?

Travelers’ obligation to defend Volentine in Garrard’s suit must be judged by the allegations of the petition. Nowhere in that petition is it alleged that Volentine performed work on any part of the engine except the valves. Thus, judged by the allegations of the petition, it appears that Volentine’s work or work product was the repair of the valves only, and that other parts of the automobile engine would constitute “other property” under the rule of interpretation which applies to exclusion (k). To the extent those other parts were damaged or destroyed and Volentine is liable therefor, the policy affords coverage. We have been unable to find an exact parallel in the reported cases, but several are analogous and instructive. For example, in Bundy Tubing Company v. Royal Indemnity Company, supra, the insured furnished tubing which was embedded in a concrete floor as part of a heating system. The tubing was defective and had to be removed by tearing out the concrete floor and pouring a new one. The court held that, although the cost of replacing the defective tubing was not covered by the policy, the liability of the insured for the cost of tearing out and replacing the concrete floor was covered. And in Hauenstein v. St. Paul-Mercury Indemnity Company, supra, defective plaster was placed on a building and later had to be removed. The court held that the cost of the plaster itself was excluded from coverage, but that damage to the building as a result of the presence of the defective plaster thereon was within the coverage provided by the policy. Two other cases, by reason of their distinguishing characteristics, are also enlightening. In Franks v. Guil-lotte, supra, the garage owner overhauled a truck engine. When the overhaul had to be redone because of defective work, the court held there was no coverage under the policy because the insured was simply repairing or replacing his own defective work. And in Engine Service, Inc. v. Reliance Insurance Company, supra, the garage owner rebuilt a heavy motor for an oil field truck. Because of defective performance of the work, the engine had to again be rebuilt. When the truck owner sought to recover the cost of the second rebuilding job, it was held that the repairman’s garage liability policy did not afford coverage because the only damage claimed was to the work performed by the insured. In both of those cases the repairmen had performed work on the entire engine — not, as here, merely upon the valves or other components.

The trial judge found that coverage was also afforded by virtue of exclusion (a) which provided that the policy would not apply:

“(a) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;”

In that finding we believe the trial court erred. Exclusion (a) does not grant or extend coverage. It simply removes breach of implied warranty of fitness, quality or workmanship from the specific exclusion relating to contractual liability. Haugan v. Home Indemnity Company, supra.

The petition of Garrard against Vo-lentine sets forth a claim of possible coverage provided by the insurance policy, and it was the obligation of Travelers to defend the suit, at least until it could confine the claims to a recovery that the policy did not cover. Bundy Tubing Company v. Royal Indemnity Company, supra.

The judgment of the trial court is affirmed.


author: HUTCHINSON, Justice.

text:
    GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION, LTD., Appellant, v. Harvey L. LEGATE, Appellee.
    No. 8630.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 27, 1979.
    Rehearing Denied March 27, 1979.
    Hardy Moore, Moore & Lipscomb, Paris, for appellant.
    C. V. Flanary, Paris, for appellee.
   HUTCHINSON, Justice.

This is a suit for treble damages by virtue of Sections 17.46(a) and 17.50(a)(4) (Supp. 1978-1979) of the Deceptive Trade Practices Aet-Texas Business and Commerce Code; Article 21.21, Sec. 16, of the Texas Insurance Code Ann. (Supp.1978); and State Board of Insurance Regulation No. 18663. Alternatively, recovery is sought under Article 3.62-1 of the Texas Insurance Code Ann. The parties will be referred to as in the trial court, that is, Appellee Legate as plaintiff and Appellant General Accident as defendant.

Plaintiff received personal injuries in an automobile accident in Dallas on July 9, 1974, while driving his automobile upon which the defendant had issued its public liability insurance policy. On the day of the accident, plaintiff by telephone advised defendant’s Dallas office of the accident and injuries and was instructed to contact the agent that had issued the policy. On July 10, 1974, plaintiff called the F. B. Taylor Agency in Port Arthur and told the person answering that he was calling on the instructions of the Dallas office; that he had received personal injuries in an automobile accident; and asked what medical papers, if any, he needed in order to file his claim. The Taylor Agency then told him that he did not have “that type of coverage.” On May 10,1976, plaintiff’s attorney called the F. B. Taylor Agency and was also told that the plaintiff did not have personal injury protection coverage. On May 13, 1976, plaintiff’s attorney received a memorandum from the F. B. Taylor Agency stating that plaintiff did in fact have such coverage and that the defendant’s office in Houston had been so notified. Plaintiff’s original petition was filed on May 20, 1976, and defendant answered by a general denial on June 18, 1976. On December 3, 1976, defendant filed an amended answer tendering into court the sum of $2,500.00 as the “maximum amount of personal injury protection afforded by the policy.”

Trial was to the court and judgment was entered for the plaintiff for treble the policy limits and graduated attorney fees. Findings of fact and conclusions of law were filed wherein the trial court concluded that the defendant’s denial of personal injury protection coverage invoked the provisions of Section 17.46 of the Texas Business and Commerce Code Ann. and Regulation No. 18663 of the State Board of Insurance.

Defendant here as below contends that the treble damage portion of the judgment cannot be sustained under Section 17.46(a) since the undisputed evidence established that the misrepresentations regarding personal injury protection coverage were innocently made. Even though the filed findings of fact are silent as to whether or not such misrepresentations were in fact innocently made, the plaintiff did not in the court below nor does he here contend otherwise. Quite to the contrary, plaintiff himself introduced into evidence portions of defendant’s pleadings wherein it plead that there were no intentional misrepresentations and that the denials of coverage were made innocently and in good faith. There being nothing to the contrary the general rule that omitted findings are deemed to support the judgment is not involved. Lockhart v. Garner, 165 Tex. 580, 298 S.W.2d 108 (1957); Threet v. Texas Employers’ Insurance Ass’n, 516 S.W.2d 276 (Tex.Civ.App.Tyler 1974, no writ); 4 McDonald’s, Texas Civil Practice, Sec. 16.10(d).

Plaintiff seeks to uphold the judgment for treble damages under Section 17.-50(b)(1) (Supp.1978-1979) of the Deceptive Trade Practices Act upon the authority of Woods v. Littleton, 554 S.W.2d 662 (Tex.1977), and McDaniel v. Dulworth, 550 S.W.2d 395 (Tex.Civ.App.Dallas 1977, no writ). It is true that these cases stand for the proposition that if liability is established under the Deceptive Trade Practices Act treble damages, Sec. 17.50(b)(1), are mandatory and the defendant here does not contend otherwise. Defendant calls attention first to the concurring opinion of Chief Justice Greenhill in Spradling v. Williams, 566 S.W.2d 561 (Tex.1978), expressing doubts as to the constitutionality of penal damages for the violation of “unlisted” and unspecified unlawful acts and then to the recent case of Singleton v. Pennington, 568 S.W.2d 367 (Tex.Civ.App.Dallas 1977, no writ), wherein it was held in an opinion by Chief Justice Guittard that in order to establish liability for treble damages under Section 17.46(a) it must also be shown that the “false, misleading, or deceptive [act] or [practice]” was made “knowingly” or with the “intent” to deceive. Also, it has been said that Section 16 of Article 21.21, Texas Insurance Code Ann., can operate only in conjunction with Sec. 17.46(b) (laundry list). Mobile County Mutual Insurance Co. v. Jewell, 555 S.W.2d 903 (Tex.Civ.App.El Paso 1977, writ ref’d n. r. e.). Here plaintiff sues to recover under the provisions of a contract of insurance breached by defendant upon its denial of coverage. Such denial of coverage did not terminate or lessen defendant’s obligations under the policy nor did it extinguish any of plaintiff’s rights thereunder. Defendant’s breach forms the basis for the institution and maintenance of this suit for the enforcement of the contractual rights created by the policy of insurance. Lone Star Life Insurance Co. v. Griffin, 574 S.W.2d 576 (Tex.Civ.App.Beaumont 1978, no writ). Neither Section 17.46(a) of the Deceptive Trade Practices Act-Texas Business and Commerce Code Ann. nor Section 16 of Article 21.21, Texas Insurance Code Ann., are here applicable. Royal Globe Insurance Co. v. Bar Consultants, Inc., Tex., 577 S.W.2d 688 (1979).

We hold that plaintiff cannot recover treble damages. As an alternative plea, plaintiff in the court below sought recovery under Article 3.62-1, Texas Insurance Code Ann., for twelve percent (12%) penalty and a reasonable attorney’s fee. We therefore reverse and remand to the trial court for it to determine whether to assess a statutory penalty and a reasonable attorney’s fee and, if so, the amount thereof.

Reversed and remanded.


author: O’QUINN, Justice.

text:
    SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellant, v. PUBLIC UTILITY COMMISSION of Texas et al., Appellees.
    No. 12882.
    Court of Civil Appeals of Texas, Austin.
    Feb. 28, 1979.
    Rehearing Denied March 21, 1979.

      W. F. Countiss, Culton, Morgan, Britain & White, Amarillo, for appellant.
    John L. Hill, Atty. Gen., J. Scott Wilson, Asst. Atty. Gen., Austin, for Public Utility Comm.
    B. D. St. Clair, McGinnis, Lochridge & Kilgore, Austin, and Dale H. Johnson, McWhorter, Cobb & Johnson, Lubbock, for South Plains Elec. Co-op., Inc.
   O’QUINN, Justice.

The principal issue in this lawsuit involves the disputed right of one or the other of two electric utilities, and the right of the City of Lubbock, to serve the inhabitants of an area comprising about 143 acres annexed by the City in November of 1976.

Prior to annexation, the disputed area, which South Plains Electric Cooperative, Inc., served exclusively from 1938 to 1976, had been certificated to South Plains by the Texas Public Utility Commission, pursuant to an agreement among South Plains, Southwestern Public Service Company, and the City of Lubbock, as authorized by Section 56 of the Public Utility Regulatory Act (Acts 1975, 64th Leg., p. 2327, ch. 721, as amended; Art. 1446c, V.A.C.S.).

After passage of the Public Utility Regulatory Act in 1975 (Art. 1446c), as indicated above, the utility parties in this lawsuit, including the City of Lubbock, acting together obtained certificates from the Commission in October of 1976 to certain acreage lying within and outside the corporate limits of Lubbock in a proceeding designated Docket 42. The present litigation derived from action later of the City by which it annexed 283 acres of the area previously certificated by the Commission. About one-half of that area had been certificated in 1976 to Southwestern Public Service Company, and 143 acres of the annexed territory had been certificated to South Plains Electric Cooperative, Inc. Only the area already certificated to South Plains is involved in this suit.

Southwestern applied to the Commission (Docket 308) requesting that it be “dually certificated” to serve the area of 143 acres, along with South Plains, and that Southwestern’s certificate previously acquired in 1976 be amended to include the 143 acres previously certificated to South Plains alone.

The City of Lubbock appeared and participated in proceedings under Docket 308 and took the position that since the territory was within its corporate limits, the City could and would furnish electric services at retail without obtaining a certificate of convenience and necessity for the area from the Commission. The City did not apply for a certificate to include the area and offered no evidence to support the grant of a certificate to the City. South Plains filed its intervention and protest, and was made a party to the proceeding by the Commission.

In its final order at conclusion of the hearing, the Commission denied Southwestern’s application to serve the 143 acres, and granted a certificate to the City of Lubbock to include the area. This latter extraordinary action was taken by the Commission despite the City’s posture before the Commission, which counsel for the City subsequently in open court restated in the appeal to district court: “We did not feel like it was incumbent upon us to file an application . . .. It’s true we didn’t request a certificate. And we have taken the position all along that it was not necessary for the City to make an application. This is our position.”

Southwestern appealed from decision of the Commission to district court. All parties before the Commission participated in proceedings before the trial court. After hearing, the trial court entered judgment affirming action of the Commission in denying the application of Southwestern and reversed and set aside the Commission’s grant of a certificate to the City of Lubbock. We will affirm the judgment of the district court.

On appeal from judgment of the court, Southwestern brings seven points of error. Under the first five points Southwestern contends in the main that the City of Lubbock is the only regulatory authority having jurisdiction of the disputed area, now within the City’s corporate limits, and that the Commission is without jurisdiction to grant or deny a certificate of convenience and necessity; further, that Southwestern, having a franchise from the City of Lubbock, is entitled “to legally serve in the area in question,” and that a certificate granted by the Commission is not superior to the franchise the City of Lubbock granted Southwestern in 1964.

We find some problem in reconciling this position of Southwestern with that taken by it in motion for rehearing before the Commission in which Southwestern declared, “Southwestern does not contend, and has never contended, that it is entitled to serve without a certificate from this Honorable Commission and to the extent that the quoted language . . . [from the Commission’s order] indicates a contrary position, it is erroneous.”

Under the final points of error, Southwestern contends that it has been deprived of property rights represented by its franchise, and that the Commission erred in determining that it was not necessary for South Plains to hold a franchise from the City of Lubbock in the disputed area of 143 acres. We do not find this latter contention raised in Southwestern’s motion for rehearing before the Commission, and appears to be an issue raised for the first time on appeal from district court.

It is appropriate, preliminary to disposition of the issues in this appeal, to examine in some detain the pertinent and controlling provisions of the Public Utility Regulatory Act.

In section 2 of the Act the Legislature declared, “The purpose of this Act is to establish a comprehensive regulatory system which is adequate to the task of regulating public utilities as defined by this Act, to assure rates, operations, and services which are just and reasonable to the consumers and to the utilities.” (Emphasis added). Immediately prior to declaring its purpose in enacting the regulations, the Legislature expressly found “ . . . that public utilities are by definition monopolies in the areas they serve; that therefore the normal forces of competition which operate to regulate prices in a free enterprise society do not operate; and that therefore utility rates, operations and services are regulated by public agencies, with the objective that such regulation shall operate as a substitute for such competition.” (Art. 1446c, sec. 2).

Although the Act defines a “public utility” or a “utility” to include “any person, corporation, river authority, cooperative corporation, or any combination thereof, other than a municipal corporation . . ” (Emphasis added; sec. 3(c)), municipalities are expressly included in the definition of “retail public utilities” (sec. 49(a)), which are made subject to Article VII of the Act, under which retail public utilities are required to obtain from the Public Utility Commission “a certificate of public convenience and necessity that includes the area in which the consuming facility is located.” (sec. 50(2)).

Although the Regulatory Act became effective September 1, 1975, a period of adjustment to this comprehensive new legislation was permitted public utilities and municipalities affected by the law. For example, the requirements of section 50 as to certificates of public convenience and necessity were postponed to a time “Beginning one year after . . . ” September 1, 1975. Under section 87(b) the Commission “shall assume jurisdiction over rates and service of public utilities on September 1, 1976,” one year after effective date of the Act; and under section 90(a), certain specified existing statutes “ . . . and all other laws and parts of laws in conflict with this Act are repealed effective September 1, 1976,” or one year later. Municipalities were allowed under section 22 to continue to regulate local utility services within “ . . . their boundaries until the commission has assumed jurisdiction . . . ”

In its new position, assumed for the first time on appeal from judgment of the district court, Southwestern insists that the City of Lubbock, within its corporate limits, has exclusive jurisdiction over the right of a public utility to serve retail customers, and that the Commission has no authority to grant or deny a certificate of public convenience and necessity inside the City boundaries. Southwestern, already serving portions of the City under its franchise granted eleven years prior to the Act, now claims it may also serve the 143 acres certificated to South Plains previous to annexation of the area by Lubbock late in 1976. In an effort to sustain this position, Southwestern invokes provisions of sections 17 and 22 of the Act.

Section 17 provides that “Subject to the limitations imposed in this Act, and for the purpose of regulating rates and services the governing body of each municipality shall have exclusive original jurisdiction over . . . rates, operations, and services provided by an electric, water, and sewer utility within its city or town limits.” (Emphasis added; sec. 17(a)).

After two years following effective date of the Act, a municipality may surrender its original jurisdiction to the Commission (sec. 17(b)), but exclusive appellate jurisdiction, to review orders and ordinances of municipalities adopted in exercise of original jurisdiction over “rates, operations, and services,” is reserved to the Commission at all times, (sec. 17(d)).

During the initial period, after effective date of the Act, in which period the Commission was without power to assume jurisdiction over grants or denials of certificates of convenience and necessity, municipalities were authorized to “ . . . continue to regulate each kind of local utility service inside their boundaries . . . ” under provisions of section 22. (Emphasis added).

Powers exercised by municipalities of this state over public utilities have never been in the field of granting or denying certificates of convenience and necessity. Except under a municipality’s statutory powers to control use of its streets and alleys, it has been denied power over public utilities to prohibit or to control the operation of the business of utilities. West Texas Utilities Company v. City of Baird, 286 S.W.2d 185, 189 (Tex.Civ.App. Eastland 1956, writ ref’d n. r. e.), following Ennis Water Works v. City of Ennis, 105 Tex. 63, 144 S.W. 930, 934-5 (1912).

The Legislature created in the Regulatory Act new powers, constituting a “comprehensive regulatory system” for utilities, and reserved to the Utility Commission exclusive original jurisdiction to grant or deny certificates of public convenience and necessity for any area in which the facility consuming the utility service is located. (Art. VII, sec. 50).

Procurement of a certificate is required before a retail public utility may serve an area already being served. Southwestern sought such a certificate before the Commission in order to serve the 143 acres annexed by the City of Lubbock in November of 1976. Southwestern’s application was denied by the Commission, and the Commission’s decision was sustained by the district court. Southwestern’s effort on appeal to escape the plain provisions of the Regulatory Act (1) by disavowing the Commission’s statutory power to grant or deny certificates, and (2) by adhering to the theory that the municipality has exclusive power to extend Southwestern’s franchise into the 143 acres, in both aspects is without merit, and the points of error under such contentions are overruled.

We hold that, beginning one year after effective date of the Regulatory Act, section 50 of the Act became effective, and that Southwestern could in no way render service under any franchise without first obtaining from the Commission a certificate that the present and future public convenience and necessity require such operation or extension, as provided under section 50(1). In 1976, jointly with South Plains and the City of Lubbock, Southwestern did obtain such certificate for the areas, inside and outside of the corporate limits of Lubbock, then and now being served by Southwestern, as authorized by the Commission under Docket 42.

We further hold that Southwestern, before undertaking to serve the 143-acre area, certificated at the same time in 1976 to South Plains, by extending Southwestern’s service to the area being lawfully furnished by South Plains, another retail public utility, must first obtain a certificate of public convenience and necessity for that area. (sec. 50(2)). This latter Southwestern attempted to accomplish by application to the Commission in Docket 308, from which the present appeal is derived. The Commission properly denied Southwestern’s application, and the district court correctly affirmed the Commission’s action in denying Southwestern’s application.

Southwestern also attacks the district court’s judgment under the contention that because Southwestern’s franchise from the City of Lubbock antedates the Public Utility Regulatory Act, it was error to deprive Southwestern of its “vested franchise right and obligation to serve the area annexed by the City of Lubbock.”

This contention by Southwestern is out of harmony with Southwestern’s position before the Commission where the utility conceded that a certificate to a franchise holder could issue only if the standards for determining the public convenience and necessity under section 54 of the Act were found by the Commission.

The Legislature in section 21 of the Act expressly preserved the “ . . . rights and powers of a municipality to grant or refuse franchises to use the streets and alleys within its limits and to make the statutory charges for the use thereof . . ” Continuing, section 21 provides, “ . but no provision of any franchise agreement shall limit or interfere with any power conferred on the commission or the railroad commission by this Act.” (Emphasis added).

In section 50(1) the Legislature again emphasized that a franchise to use public streets and alleys will not confer upon a utility the right to serve the public with electric service:

“No public utility may in any way render service directly or indirectly to the public under any franchise or permit without first having obtained from the commission a certificate that the present or future public convenience and necessity require or will require such installation, operation, or extension.” (Emphasis added).

The bases for Southwestern’s argument that its constitutional rights have been impaired appear to be grounded on erroneous assumptions that a utility’s right to provide service is not subject to the state’s police power and that a franchise from a city is a vested right to serve the public.

In seeking to escape the state’s exercise of its police power, Southwestern relies upon Texas Power and Light Company v. City of Garland, 431 S.W.2d 511 (Tex.Sup.1968), in which the Supreme Court struck down a city ordinance designed to curtail rights under an earlier franchise granted the utility by the city. The Court found certain sections of the ordinance void as an attempt to give the City of Garland, a competitor with the utility, an advantage over the public utility. The Court stated: “Essential franchise rights cannot be taken under a pretense of regulation designed to gain a competitive advantage to the City acting in its proprietary capacity. The City has no right to barter with the police power.” (Emphasis added). (431 S.W.2d 518, col. 1).

Remaining sections of the Garland ordinance, the Supreme Court stated, were provisions “. . designed to prevent duplication of present or future City electrical systems, [and] are said to be within the City’s police power.” The Court added, “We hold that these three sections are void because they do not state a reasonable standard aimed at protecting the safety or welfare of the public. They in no way control the City’s exercise of discretion.” (Emphasis added). (431 S.W.2d 518, col. 2). The Supreme Court concluded, “Without stating standards by which the City can govern the exercise of its discretion, Sections (b), (e) and (k) allow the City to arbitrarily exercise its governmental power to exclude competition in an undeveloped area. The three sections are void because they do not provide adequate standards to govern the discretion of the City.” (Emphasis added). (431 S.W.2d 519, cols. 1-2).

Entirely different from a municipality, employing its governmental prerogatives to gain advantage in its proprietary role over a competing utility, is the action of the Legislature in adopting a regulatory law requiring public utilities to meet stated standards to obtain certificates of public convenience and necessity before being allowed to serve a specified territory. In the present case the Commission denied Southwestern’s application because the certificate was not necessary for service, accommodation, convenience, or safety of the public under standards found in section 54 of the Act.

In Garland the Supreme Court found no standards provided in the ordinance. The basic standard in section 54 of the Regulatory Act is determination of whether “. . . the certificate is necessary for the service, accommodation, convenience, or safety of the public.” (sec. 54(b)).

The Act also provides that:

“Certificates of convenience and necessity shall be granted on a nondiscriminatory basis after consideration by the commission of the adequacy of existing service, the need for additional service, the effect of the granting of a certificate on the recipient of the certificate and on any public utility of the same kind already serving the proximate area, and on such factors as community values, recreational and park areas, historical and aesthetic values, environmental integrity, and the probable improvement of service or lowering of cost to consumers in such area resulting from the granting of such certificate.” (Emphasis added), (sec. 54(c)).

The basic standard alone, as quoted from section 54(b), supplies a standard heretofore held sufficient to govern action of an administrative body. The Supreme Court in 1960 held that “. . the statutory standard — the promotion of the public convenience and advantage — being applicable and constitutionally sufficient for a definite standard,” did not require the banking commissioner to promulgate rules and regulations in further elaboration. (See Jordan, p. 281, post). Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917 (1960). Shortly thereafter the Supreme Court, in a case involving action of the State Board of Insurance, held that the term “ ‘not worthy of the public confidence’ ” under which the Legislature authorized the Board after investigation to refuse, or revoke, an insurance carrier’s certificate of authority, was . reasonably clear and hence acceptable as a standard of measurement. And in this lies the true constitutional test.” Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278, 280 (1960), citing and discussing Falkner. See also the Supreme Court’s discussion of the holding in Jordan in Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839, 845 (1961).

We hold that the standards found in section 54(b) and (c) are adequate and meet the test recognized by the Supreme Court in Falkner, Jordan, and Key Western. The standards enumerated in section 54 hold a reasonable relationship to the Legislature’s declared purpose for the Act in section 2 “. . .to protect the public interest inherent in the rates and services of public utilities.”

As pointed out earlier, municipalities may grant franchises to utilities to use the public streets and alleys, but such franchises do not grant the right to engage in the sale of electricity to the public. West Texas Utilities Company v. City of Baird, supra; Ennis Water Works v. City of Ennis, supra.

Southwestern relies on and quotes from cases which we do not find in point. For in none of these cases do we find that where the franchise right is held impaired a right had been lawfully granted by a city to a public utility to serve the public. The franchise Southwestern obtained from the City of Lubbock could not have the effect of a grant to provide service to the public or to engage in the utility business in Lubbock, for, as the cases reviewed earlier hold, a municipality has no power to grant or deny such a right.

Because an attempted grant to a water company for a period of years “the right and privilege ... of supplying the city . . . and the inhabitants thereof” was found to be an exclusive grant, the Supreme Court very early found the grant unconstitutional. City of Brenham v. Brenham Water Company, 67 Tex. 542, 4 S.W. 143 (1887). Even the grant to use the streets and alleys may not be made exclusive without coming in conflict with the constitutional prohibition.

Southwestern’s insistence that it somehow has a franchise right, granted by the City of Lubbock, which has been impaired in violation of the utility’s constitutional rights, is found to be without merit, for the reasons already stated, and the contention is overruled.

Under its final point of error Southwestern attacks the corporate powers of South Plains under claim that South Plains is without authority “to continue and extend electrical service to new customers in the area annexed by the City of Lubbock” which the Commission in 1976 certificated to South Plains. The proceedings now under review were initiated by Southwestern through application to the Commission for a certificate to serve the 143 acres under dispute. From the Commission’s order refusing the certificate, Southwestern appealed to district court and from the court’s adverse judgment has appealed to this Court. The standing of South Plains is not an issue in this litigation, and Southwestern is in no position to raise the question of whether South Plains has acted in excess of its corporate authority.

The only interest Southwestern could have in South Plains’ activities in the disputed territory, under a certificate granted by the Commission, is as a competitor. Whether a corporation has acted in excess of its lawful powers can be raised only by a party interested in the corporation or in a direct proceeding brought by the state. In the present case the attorney general, representing the Commission, has not challenged the right of South Plains to provide service within the annexed area.

Southwestern’s lack of justiciable interest, under the facts of this case, to challenge the corporate powers of South Plains is clearly demonstrated under the well recognized rule stated in English v. Landa Motor Lines, 166 S.W.2d 721 (Tex.Civ.App. Austin 1942, writ ref’d w. o. m.); West Texas Utilities Company v. Smith, 168 S.W.2d 665 (Tex.Civ.App. Austin 1943, writ ref’d); Lea County Electric Cooperative, Inc. v. City of Plains, 373 S.W.2d 90 (Tex.Civ.App. Amarillo 1963, writ ref’d n. r. e.); Southwestern Gas and Electric Co. v. City of Gilmer, 123 F.Supp. 11 (E.D.Tex.1954), aff’d 224 F.2d 794 (1955). The point of error is overruled.

We earlier referred to the position of the City of Lubbock, before the Commission and subsequently before the district court, that it was not “incumbent upon us [the City] to file an application” for a certificate to serve the disputed 143 acres. The Commission nevertheless granted a certificate to the City covering the 143 acres, an action set aside by the district court. The attorney general seeks to sustain the action of the Commission by pointing out matters coming to the attention of the Commission which constitute substantial evidence to support grant of the certificate.

The hearing before the Commission dealt with the application of Southwestern to serve the area, and no other application or request was pending in that proceeding. The City of Lubbock candidly conceded that the City did not “request a certificate.”

The Legislature plainly set out the manner and course by which the Commission may grant a certificate of public convenience and necessity. Section 54 of the Act prescribes that “When an application for a certificate of public convenience and necessity is filed, the commission shall give notice of such application to interested parties and, if requested, shall fix a time and place for a hearing and give notice of the hearing.!’ (Emphasis added).

The same section continues with detailed statement of the criteria and “factors considered” by the Commission, and clearly contemplates a hearing at which all parties are advised of the application on file and its nature and contents. It is not contemplated that the Commission is authorized, by whim and without notice, to issue certificates of public convenience and necessity in the manner of handing out free passes to a ball game.

The statute calls for an application on file, notices by the Commission to all interested parties, a fixed time for hearing on the application so filed, followed by consideration of the elements enumerated in section 54(c), before the application on file be finally granted or denied. The district court correctly set aside the Commission’s grant of a certificate to the City of Lubbock to serve the disputed 143 acres. The district judge was of the view that such action be without prejudice to the right of Lubbock later to make application for a certificate. We are in agreement with that conclusion.

Certain motions filed by South Plains, seeking to have struck specified cross points by the Commission and to obtain dismissal of appeal by the Commission, have been examined and considered and are hereby overruled.

The judgment of the district court, sustaining action of the Commission in denying Southwestern’s application for a certificate to serve the 143 acres in dispute and setting aside the Commission’s grant of a certificate to the City of Lubbock to serve the same area, was in all things proper and correct.

Judgment of the district court is affirmed.

Affirmed.


author: YOUNG, Justice.

text:
    Elon Rogers EUBANKS, Appellant, v. Marie HAND, Oral Roberts Evangelical Association, Inc., Billy Graham Evangelistic Association, Salvation Army, and Valley Boys Ranch, Appellees.
    No. 1331.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 28, 1979.
    Rehearing Denied March 22, 1979.

      Joel William Ellis, Harlingen, for appellant.
    Tony Martinez, Walsh, Martinez & Gil-man, Brownsville, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal from an order denying the admission of a will to probate. On September 26, 1974, appellant, Elon Rogers Eubanks, filed an application for the probate of the September 12, 1974, will of the deceased, Lawrence B. Hancock. Appellees, Marie Hand, Oral Roberts Evangelical Association, Inc., Billy Graham Evangelistic Association, Salvation Army, and Valley Boys Ranch, filed oppositions to the application.

Then the case embarked upon a strange judicial course, and the same trial judge presided over all of the subsequent proceedings. A hearing on the merits was held on January-28, 1975. Apparently, after this hearing the judge ruled that the will should be admitted to probate. But on February 6, 1975, he vacated his prior ruling. On March 20, 1975, the judge entered an order allowing the parties to present additional testimony.

On March 3, 1976, a second hearing was held to admit further testimony. After that hearing, the trial judge signed an order on April 15, 1976, admitting the will to probate. There is no indication in the record of any further proceedings in this case until the judge signed an order on November 29, 1977, ordering that the will of the decedent Lawrence B. Hancock not be admitted to probate. This November 29 order was then set aside by the judge on December 13, 1977. On December 16, 1977, he signed another order denying the application of Eubanks to admit the will to probate. Eubanks appeals from the December 16 judgment.

This Court concludes, sua sponte, that the April 15, 1976, order is the only valid judgment in this case and that the trial court was without jurisdiction to render the later judgment made the basis of this appeal.

None of the parties raised this jurisdictional issue in their briefs on appeal. A court of civil appeals is authorized, however, to reverse a judgment of the trial court upon unassigned error where the record affirmatively shows the court rendering judgment was without jurisdiction of the subject matter. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 985 (1947). In this connection, during oral argument this Court directed the parties’ attention to the April 15, 1976, order and asked that they brief the issue concerning finality of that judgment and the trial court’s jurisdiction to enter the other judgment which is the basis of this appeal. See Aloe Vera of America, Inc. v. CIC Cosmetics Int. Corp., 517 S.W.2d 433, 435 (Tex.Civ.App.—Dallas 1974, no writ). The parties have filed post submission briefs, and appellees have admitted that the April 15, 1976, judgment was a final appealable judgment if it were not void because mistakenly signed.

Appellees argue that the trial judge mistakenly signed the April 15, 1976, judgment and that, accordingly, it is a void judgment which the trial court could have set aside at any time. Appellees then cite several cases which support the proposition that a court has the power and duty to vacate the inadvertent entry of a void judgment. See e. g. Wichita Falls, R. & Ft. W. Ry. Co. v. Combs, 115 Tex. 405, 283 S.W. 135 (1926). With these cases in mind, ap-pellees pray this Court deem the April 15, 1976, judgment void and thereby ignore it. In support of their contention that the prior April 15 order is void, appellees appended three affidavits to their post submission brief. We need not consider these affidavits, however. A court of civil appeals may consider affidavits to determine its own jurisdiction but not the jurisdiction of the trial court. Rosenfeld v. Steelman, 405 S.W.2d 301 (Tex.Sup.1966).

Moreover, appellees’ allegations are in the nature of a collateral attack; i. e., they attempt to avoid the binding force of a prior judgment in a proceeding not instituted for such purpose. Akers v. Simpson, 445 S.W.2d 957 (Tex.Sup.1969). Evidence aliun-de the record is not to be considered in a collateral attack. Cowan v. Mason, 428 S.W.2d 96 (Tex.Civ.App.—Amarillo 1968, no writ); Hodges, Collateral Attacks on Judgments, 41 Tex.L.Rev. 499, 528 (1963). Appellant’s motion to strike the affidavits in the appellees’ post submission brief is granted.

It should be further noted that a collateral attack must show that the trial court was without jurisdiction to act, rather than that the court’s actions were procedurally improper. Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.Sup.1973). Appellees’ allegations of voidness herein are based upon a procedural error, namely, inadvertent signing of the judgment, and should have been brought in a direct attack. See Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895). Thus, the appellees’ allegations cannot form the basis for a collateral attack.

Without more, we must presume that the April 15, 1976, judgment, which is regular on its face and is not impeached by any other part of the record, was properly pronounced and rendered. Texas Life Insurance Co. v. Texas Building Co., 307 S.W.2d 149 (Tex.Civ.App.—Fort Worth 1957, no writ).

According to Rule 329b(5), T.R.C.P., the trial court lost jurisdiction of this case 30 days after the April 15, 1976, judgment. See Ex Parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962); 4 McDonald, Texas Civil Practice § 18.03 (1971). All orders entered subsequent to that 30 day period were null and void. Dubert v. Adkins, 475 S.W.2d 383 (Tex.Civ.App.—Corpus Christi 1971, no writ).

Because the trial court had no jurisdiction to render the judgment of December 16, 1977, this Court has no jurisdiction to consider the merits of the appeal from that judgment. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (1958); 3 Tex.Jur.2d Rev., Appeal & Error § 27 (1974).

Where the trial court does not have jurisdiction to render a judgment, the proper practice is for the reviewing court to set the judgment aside and dismiss the appeal. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961); Travelers Express Company, Inc. v. Winters, 488 S.W.2d 890 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.).

Accordingly, the December 16, 1977, judgment of the trial court is set aside and the appeal is dismissed.


author: WARD, Justice.

text:
    Dana J. BEESON, Appellant, v. Dorothy Lou BEESON, Appellee.
    No. 6812.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 28, 1979.

      John Saleh, Lamesa, for appellant.
    Michael L. McLeaish, Odessa, for appel-lee.
   OPINION

WARD, Justice.

This case involves a jurisdiction question under Section 5 of the Texas Probate Code. The Appellant contested the Appellee’s application for probate of a will. The application was filed in the County Court at Law of Ector County, but on the motions of both parties was transferred to the District Court of Ector County.

The Appellant attacks the jurisdiction of the District Court to hear a probate proceeding originally filed in the Ector County Court at Law. Section 5 of the Texas Probate Code was amended in 1973 to divide the district courts’ jurisdiction over probate matters into two categories. Schwartzel and Wilshusen, Texas Probate Jurisdiction —There’s a Will, Where’s the Way?, 53 Texas L.Rev. 323 (1975.) Section 5(b) concerns “Group I Counties” — those counties without a statutory county court. In these counties an application for probate must be filed and heard in the county court unless the matter is contested. In contested matters a 1975 amendment gives the parties the right to transfer the proceedings to the district court. Schwartzel and Wilshusen, Texas Probate Jurisdiction: New Patches for the Texas Probate Code, 54 Texas L.Rev. 372, 380 (1976).

In contrast is Section 5(c) which applies to “Group II Counties” — counties with statutory probate courts or county courts at law. This Section provides that all applications must be filed and heard in the probate court, the county court at law, or in the constitutional county court, “rather than the district courts.” There is no transfer exception. As was said in Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App.—Tyler 1977, no writ):

There is no question that this section provides that in counties ... in which there are both district and statutory courts, the statutory probate court has exclusive jurisdiction over applications, petitions and motions regarding probate and administration.

As summarized by Woodard & Smith, 17 Tex.Prac. Chap. 1, Section 2 (Supp.1978):

. In counties having no statutory court exercising probate jurisdiction, the district court may sit as a probate court when a contested matter is transferred to it on the motion of a party or of the county judge. In all other counties, the district court has no original jurisdiction in probate proceedings, . . . (Emphasis added)

These authorities lead to the conclusion that the District Court had no jurisdiction and therefore should enter an order of dismissal. Butts v. Ailshie, 521 S.W.2d 155 (Tex.Civ.App.—El Paso 1975, no writ).

The Appellee argues that even if the transfer was in error, the Appellant agreed to the transfer and is therefore estopped from contesting it. Jurisdiction cannot be conferred by consent or estoppel; it exists by virtue of the Constitution and Statutes and is a matter of law. Daniel v. Dallas Independent School District, 351 S.W.2d 356 (Tex.Civ.App.—El Paso 1961, writ ref’d n. r. e.); Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079 (1926).

The District Court of Ector County had no jurisdiction of this case and the attempted transfer to it is a nullity. It therefore never acquired jurisdiction and any and all actions taken by the District Court are void. Jurisdiction remains in the County Court at Law under its original cause No. 6544-A. The Clerk of the District Court of Ector County is ordered to transfer all items on file in the cause to the Clerk of the County Court at Law for further proceedings as cause No. 6544-A on the docket of that Court.


author: J. CURTISS BROWN, Chief Justice.

text:
    UNION BUILDING CORPORATION et al., Appellants, v. J & J BUILDING & MAINTENANCE CONTRACTORS, INC., Appellee.
    No. B1898.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1979.
    Rehearing Denied March 21, 1979.
    Chris Dixie, Dixie, Wolf & Dixie, Bertrand C. Moser, Houston, for appellants.
    Jeffrey R. Parsons, Fulbright & Jaworski, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

Plaintiff, suing to recover for services rendered and materials delivered while remodeling an office building owned by defendants, was awarded judgment for $48,-800.00 plus interest, and attorney’s fees. Appellants, defendants below, question the propriety of both items of recovery.

J & J Building & Maintenance Contractors, Inc. (appellee or J & J), contracted to remodel an office building belonging to a corporation, Union Building Corporation, which is composed of Locals 968 and 988 of the International Brotherhood of Teamsters, Chauffeurs, Helpers and Warehouse-men of America, (appellants or Union). The basic contract called for remodeling in compliance with a set of plans at a contract price of $100,500.00. The contract also provided:

All changes or alterations from the drawings will be charged by labor and materials plus 25% burden and 10% profit. .
Any alteration or deviation from the above specifications involving extra costs, will be executed only upon written orders, and will become an extra charge over and above the estimate.

Appellee, as general contractor, electing not to do any of the work itself, subcontracted the work under the basic contract to various subcontractors, none of whom are parties to this suit. Almost from the inception, changes and alterations in the original plans were orally agreed to by the parties. As the remodeling proceeded, appellee presented appellants with requests for progress payments and, at first, appellants honored such requests. When appellants later requested itemization of bills for extras before payment, appellee walked off the job, subsequently bringing this action.

At trial, appellants contended the parties had renegotiated the contract to provide for a gross amount of $108,000.00 to cover both the original plans and the “extras” later agreed to by the parties. The jury found that no such renegotiation occurred, therefore, that finding not being questioned, the contract for $100,500.00 plus “extras” is the relevant contract in this appeal.

Appellee sought recovery under alternative theories of quantum meruit and contract. We shall address the quantum meruit issues first. As noted by the supreme court:

The right to recover in quantum meruit is based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted. Davidson v. Clearman, 391 S.W.2d 48 (Tex.1965). If a valid express contract covering the subject matter exists there can be no recovery upon a contract implied by law. Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex.1964). However, the existence of an express contract does not preclude recovery in quantum meruit for the reasonable value of services rendered and accepted which are not covered by the contract. City of Galveston v. O’Mara, 146 S.W.2d 416 (Tex.Civ.App.—Galveston 1940), affirmed as correctly announcing the law, 138 Tex. 16, 155 S.W.2d 912 (1941).

Black Lake Pipe Line Co. v. Union Construction Company, Inc., 538 S.W.2d 80, 86 (Tex.1976) (emphasis added). Under Black Lake, the crucial question with respect to quantum meruit is whether the services and materials in issue here were “covered by the contract.” In special issue three, the jury found $48,800.00 to be the “reasonable value of all services, labor and material furnished by the plaintiff for the benefit of defendants in repair and construction of the defendants’ building over and above the amounts paid by the defendants to plaintiff and to the subcontractors engaged by plaintiff for such services, labor and material . ” (emphasis added). Appellee, by that issue, has not attempted to limit the quantum meruit recovery to “extras” but has expanded the issue to include recovery for all services performed and material delivered that were not paid for by the appellants. Additionally, 'the jury found that appellants had “waived” the contractual requirement that all alterations or deviations were to be agreed to in writing before execution. The combined effect of special issue three and the jury’s finding of waiver takes this case outside the scope of Black Lake, supra, 538 S.W.2d at 89-91. In Black Lake, the supreme court was construing the following provisions of a construction contract:

Company may, at any time before completion of the work, make amendments, deletions, or additions to the Technical Specifications or the attachments thereto so long as such changes do not enlarge or diminish the scope of the work to be done under this contract. Contractor agrees that he will comply with such changes and that if such changes result in any increase or decrease in the cost to Contractor of performing this contract, then there shall be a corresponding increase or decrease in the consideration to be paid Contractor under this Contract.

538 S.W.2d at 89-90. The court stated:

Black Lake argues that the above contract provisions authorized it to change the technical specifications and require any work necessary to comply with the amended specifications. Union and MPD contend, on the other hand, that their contracts required them to perform extra work only upon the filing of written amendments to the technical specifications. It is undisputed that the technical specifications were not amended to cover the items of extra work in question. According to Black Lake, it is unimportant whether amendments to the technical specifications were oral or written. We disagree. Both the prime contract and the subcontract contemplated that the contractors’ obligations would be determined by the written agreement. Section 1 of both contracts provides that “no modifications or supplement to any part of said entire agreement so constituted shall hereafter be made except by written agreement signed by both parties.” Black Lake could order work in excess of the technical specifications, but Union and MPD were not bound if the specifications were not amended to cover the work. We find it quite understandable that Union and MPD chose not to be bound to perform extra work unless Black Lake amended the technical specifications in writing. This was the contractors’ protection against being obligated to perform work that Black Lake did not consider extra and for which Black Lake was unwilling to pay additional compensation.

538 S.W.2d at 90-91. The distinction between Black Lake and the present case lies in the jury finding that the appellants waived the requirement that changes and alterations be agreed to in writing before execution. The waiver of the writing requirement results in the conclusion that the “extras” agreed to orally were “covered by the contract” and were to be compensated for according to the terms of the contract, to wit:

All changes or alterations from the drawings will be charged by labor and materials plus 25% burden and 10% profit.

Appellee, in response, argues that quantum meruit recovery should be allowed under the recognized exception that a contractor can recover in quantum meruit in the face of an express contract if the owner has precluded the contractor from completing the construction. Dankowski v. Cremona, 352 S.W.2d 334 (Tex.Civ.App.—Eastland 1961, writ ref’d n. r. e.), supports the appel-lee’s theory of recovery.

Where there has been a partial performance by one of the parties to a contract and further performance is wrongfully prevented by the other party, and the rights of the parties in such circumstances can be determined from the contract, the injured party may recover either on the contract or in quantum meruit, at his election.

352 S.W.2d at 336. Appellee contends that completion of the work was precluded by appellants’ refusal to make periodic progress payments. Refusal to make periodic progress payments as required by the relevant contract has been held to justify recovery in quantum meruit. United States v. Safeco Insurance Co. of America, 555 F.2d 535, 542 (5th Cir. 1977) (applying Texas law). However, the contract between the parties in this case does not require “periodic progress payments” but merely allows for “additional draws of 10% as work progresses.” Questions of fact were presented at trial concerning whether the parties orally agreed to progress payments on the extras and whether appellants refused to make a requested payment or simply requested further itemization before payment. Since appellee did not request special issues to resolve these questions of fact, the issues were waived. Tex.R.Civ.P. 279; Houston Lumber Supply Company v. Wockenfuss, 386 S.W.2d 330, 336 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.). We conclude that appellee has not brought itself within an exception to the general rule that quantum meruit recovery is denied for services and material “covered by the contract.”

In support of its alternative contract theory of recovery, appellee requested and received submission of the following special issue:

What amount, if any, do you find from a preponderance of .the evidence to be the reasonable value of extras, if any, furnished by the Plaintiff under the $100,500 contract?

In light of the wording of the contract calling for alterations and changes to be “charged by labor and materials” plus 35%, we hold that appellants were correct when they objected that “cost” to appellee of the materials and labor should control rather than “reasonable value.” We therefore reverse and remand for a new trial. This decision renders it unnecessary to consider the other points raised by appellants.

Reversed and remanded.