author: GREENE, Judge.

text:
    Donald M. GREEN, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10901.
    Missouri Court of Appeals, Southern District, Division Three.
    May 9, 1979.
    Ralph R. Bloodworth, Jr., R. Randy Bloodworth, Poplar Bluff, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Movant was charged by information, in the circuit court of Butler County, in case CR-2279-76, with the crime of burglary. The particulars of the charge, as shown by the information filed here as part of the transcript, where that movant did, on August 11, 1975, forcibly break into and enter the dwelling house of James Greer, with the felonious intent to steal, take and carry away certain personal property of James Greer that was kept in his dwelling house.

On July 27,1976, movant appeared before the trial court. The court recited the case number CR — 2279—76, but instead of informing the movant regarding the house burglary charge, read to the defendant a charge of stealing a motor vehicle, the verbatim language used by the court being as follows: “THE COURT: This is CR-2279-76, State of Missouri vs. Donald Green. Your name is Donald Green? A. Yes, sir. Q. Mr. Green, an Information has been filed in this court by the Prosecuting Attorney of this County which reads as follows: Ernie J. Richardson, Prosecuting Attorney in and for the County of Butler, in the State of Missouri, upon his official oath of office informs the court and charges the facts to be that the defendant, Donald Green, at and in the County of Butler and the State of Missouri, and on or about the 20th day of March, A.D.1976, did wilfully, and unlawfully and feloniously steal, take and carry away the goods, wares, chattels, and personal property of Burén Ponder, to wit: a 1962 Chevrolet Sedan, VIN number 218695183981, with the felonious intent then and there to steal and to permanently deprive the owner of the use thereof and convert the same to his own use, and without the consent of Burén Ponder, and against the peace and dignity of the State.

Before you respond to that charge, it is my duty to advise you that under the laws of this State that you are entitled to a trial by a jury, if you wish to have one. You also have the right to meet and be confronted by the State’s witnesses; hear their sworn testimony and have these witnesses cross examined by your attorney and while they are under oath and in your presence and during a trial. You also have the right to remain silent in order to avoid self incrimination, and if you elect to remain silent the Court will enter a plea of not guilty for you and you will be afforded a jury trial. Upon a trial by a jury the burden would rest with the State, represented by the Prosecuting Attorney to prove that you are guilty of this charge beyond a reasonable doubt before you can be found guilty. In order to do that the State would have to convince all twelve members of the jury panel that you are guilty beyond a reasonable doubt before they could convict or assess any punishment against you. During the trial of the case you would be given the opportunity to testify on your own behalf if you wished to do so. If you wished after advice of counsel to not take the witness stand to testify you would not be required to do so. If you decided that you did not wish to testify the Prosecuting Attorney could not mention it during the trial of the case and nothing could be said about it, or any inference drawn from it, because you refused to testify. You also have at your disposal all of the powers of the State to subpoena any witnesses that you might want to have to testify in your behalf. Of course this Court has appointed a lawyer for you having found that you were indigent and you would be under no obligation as an attorney is concerned as far as the subpoenaing of witnesses and all other means of discovery to prepare your case for trial. If you are found guilty of this charge, or if you should decide to plead guilty to the charge, the law fixes the punishment at a range from two to ten years in the Missouri Department of Corrections, and the jury would be instructed that if they did find you guilty to fix your punishment within that range from two to ten. And of course they would further be instructed if they found you not guilty that they would return a verdict so indicating and there would be no punishment assessed at all.

First, I would like to ask you if you understand the charge against you? A. Yes, sir. Q. Do you have any questions concerning that charge? A. No, sir. Q. Do you understand the various rights that you have as outlined by the court? A. Yes, sir. Q. Do you have any questions concerning those rights? A. No, sir. Q. Do you understand the punishment range? A. Yes, sir. Q. Do you have any questions concerning that? A. No, sir. Q. Do you have any questions concerning anything? A. No, sir. Q. Do you have anything at this point that you want to ask about, or anything that I have said or read that you do not understand? A. No, sir sir. Q. Then you may respond to the charge that I read to you by entering a plea of guilty, a plea of not guilty, or you remain silent; what do you wish to do? A. Plead guilty.”

The trial judge then asked the prosecuting attorney to make a statement concerning the charge, which statement was as follows: “Q. Do you have a statement to make? MR. RICHARDSON: The State stands ready to prove all the allegations contained in the Information. On that date alleged the Greer home was forcibly broken into and was severely damaged and several items were taken including some guns. Sometime later, I believe several weeks later this defendant was in jail on another charge and this defendant made a statement to a deputy sheriff and to me that he and two other men on that date drove to the Greer home and that he and one of the other two men broke in the stole thise (sic) items and transported them to St. Louis where they sold them to a fence in St. Louis. Q. Is that all? MR. RICHARDSON : Yes, sir.” This statement referred to the burglary charge.

The trial court then accepted the guilty plea, and sentenced movant to a term of ten years in the custody of the Missouri Department of Corrections. The certified copy of sentence and judgment on the plea of guilty, filed with the transcript here, shows a sentence of ten years after a plea of guilty to a charge of burglary, when in truth and in fact, movant entered a plea of guilty to an unrelated charge of stealing. Movant was then confined in the Missouri State Penitentiary as a result of his sentence.

On April 22, 1977, the indigent movant, pro se, filed a motion to vacate judgment and sentence under Rule 27.26, V.A.M.R. As grounds for the motion, movant alleged, a) that his right to effective assistance of counsel was violated by reason of counsel’s failure to conduct a pretrial investigation, and b) that he was induced to plead guilty because of fear of further punishment from the jailer of Butler County, and the false promises of his court appointed counsel. The trial judge was then disqualified by movant, and a successor trial judge was appointed to hear the motion. On September 20, 1977, the successor trial judge summarily overruled the motion without notice or hearing. On September 29,1977, movant filed a motion for new trial. The motion alleged that, 1) the verdict was contrary to law, 2) the verdict was contrary to evidence that would have been presented, 3) that the court erred in overruling the motion without allowing movant to present evidence on his claims of ineffective assistance of counsel and a plea induced by fear of the jailer and by the false promises of his attorney, and 4) that the court erred in overruling the motion without affording defendant notice or the opportunity for a hearing. The trial court did not rule on the motion, which failure to rule, in effect, overruled the motion after the passage of 90 days from the date the motion was filed. Rule 27.20(b), V.A.M.R.

Movant then appealed to this court. Movant raises two points on appeal, which are, 1) that the trial court erred in overruling his 27.26 motion without affording him a hearing, and 2) that his plea of guilty was not voluntarily and understandingly made, and was therefore void. In regard to point one, we conclude that the trial court did not err in summarily overruling movant’s 27.26 motion without an evi-dentiary hearing, on the basis of what had been presented to it, for the reason that, as correctly decided by the trial court, mov-ant’s claims of ineffective assistance of counsel and an induced plea of guilty were clearly refuted by the record of the trial court, which was made at the time he entered his plea. In regard to point two, respondent contends that since movant failed to state this ground in either his 27.26 motion, or in his motion for new trial, he cannot raise it for the first time on appeal, State v. McNeal, 539 S.W.2d 722, 725 (Mo. App.1976) and, therefore, we should not consider defendant’s allegations that his guilty plea was not voluntarily and understandingly made. While appellate review of matters of this type is ordinarily limited to a determination of whether or not the findings, conclusions and judgment of the trial court are clearly erroneous, Rule 27.-26(j), V.A.M.R., we believe, under the facts of this case, that movant is entitled to relief, and therefore review his claim under the doctrine of plain error, in order to prevent manifest injustice. Rule 84.13(c), V.A. M.R. This is consistent with the “sole purpose” of Rule 27.26, which “ ‘is to determine whether defendant’s original trial was vio-lative of any constitutional requirements or if the judgment was otherwise void”', Fields v. State, 572 S.W.2d 477, 480 (Mo. banc 1978), (emphasis ours).

It is evident from the record that movant was arraigned on, and entered a plea of guilty to, a charge of stealing a motor vehicle, §§ 560.156 and 560.161, RSMo 1969, V.A.M.S., but was sentenced for the crime of burglary in the first degree, § 560.040, RSMo 1969, V.A.M.S. It is difficult, if not impossible, to determine from the record why this procedure was followed. We can only speculate that since the transcript indicates that there were three felony charges pending against movant in Butler County, one of which was for burglary and one of which was for auto theft, that a clerical mix-up occurred, whereby the clerk had mistakenly put the auto theft charge information in the burglary charge file, which was then inadvertently read to movant by the trial judge at the time of arraignment.

However, regardless of what caused the error, the judgment must be vacated, as the judgment, sentence and commitment are void. A person cannot be convicted on one charge and be legally sentenced on another charge. See LaGore v. Ramsey, 126 S.W.2d 1153, 1154 (Mo. banc 1939) (convicted of assault with intent to rob, sentenced for robbery in the first degree); State v. Duff, 253 Mo. 415, 424, 161 S.W. 683, 685 (1913) (convicted of burglary, sentenced for larceny); and State v. Goodwin, 217 S.W. 264, 266 (Mo.1919) (convicted for permitting a female under 18 years of age to remain in a bawdyhouse, sentenced for running a bawdyhouse).

Rule 25.04, V.A.M.R. states, in part, “Arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to him the substance of the charge and calling on him to plead thereto. A defendant may plead not guilty or guilty. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge . . .” (emphasis ours). This rule merely codifies what has long been the law of the state of Missouri. See State v. Williams, 361 S.W.2d 772, 775 (Mo. banc 1962), and cases cited therein. The rule does not require a perfect plea record, but it does require that a defendant understand the nature of the charges against him before entering his plea. Fisk v. State, 515 S.W.2d 865, 868-869 (Mo.App.1974).

There is nothing in the record to even intimate that the trial court or counsel intentionally misled movant in any respect, and it appears to us that the mistake, in accepting a plea of guilty from movant on a charge of stealing and then sentencing him for the crime of burglary, was accidental and not intentional. Further, had movant presented the precise question before us here to the trial court when he filed his motion to vacate, undoubtedly the confusion existing in the record could, and would, have been dissipated at that level. Nevertheless, the error must be corrected, because movant could not have understood that he was pleading guilty to a charge of burglary, as such a charge was not read and explained to him at the time he entered his plea, and he should not have been sentenced for the crime of burglary, because he had not entered a plea of guilty to such a charge.

Rule 27.26(i), V.A.M.R., provides that if the trial court, after reviewing a motion to vacate, set aside, or correct sentence, finds that the sentence imposed was illegal, or otherwise subject to collateral attack, then it should vacate and set aside the judgment, and should either discharge the prisoner, re-sentence him, grant him a new trial, or correct the sentence, as may appear appropriate.

We are of the opinion that the trial court should set aside movant’s sentence in this case as the judgment, sentence and commitment are void for the reasons stated above. However, before doing so, the trial court should have the benefit of proper pleadings filed by movant in order to make such a determination, based on the facts and allegations properly before it. The cause is remanded to the trial court with instructions that the trial court set aside its order overruling movant’s motion to vacate judgment and sentence, that it appoint counsel to represent the indigent movant, who shall amend movant’s pro se motion in order to state factually the basis for claimed relief that movant has raised here for the first time, that the trial court determine whether, on the basis of said amended motion, an evidentiary hearing is required to dispose of the troublesome questions raised here, and that it make such appropriate orders as are necessary, after reviewing the amended motion. By utilizing such a procedure, at the trial court level, it is hoped that finality in the post conviction aspect of this case can be achieved, without a prolonged, cumbersome, repetitive post-conviction process. Fields v. State, supra, at 483.

The judgment is reversed and the cause remanded for appointment of counsel, an opportunity to amend the motion to vacate, and further proceedings consistent with this opinion.

FLANIGAN, C. J., BILLINGS and MAUS, JJ., concur.


source: Caselaw Access Project

author: DALLY, Judge. ROBERTS, Judge.

license: Public Domain

text:
    Michael Grant WALLER, Appellant, v. The STATE of Texas, Appellee.
    No. 56042.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.
    Rehearing Denied June 6, 1979.
    John J. C. O’Shea, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and Phil Gamble, Asst. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for burglary of a vehicle. Punishment was assessed at imprisonment for three years.

Appellant complains that the trial court improperly admitted identification testimony, refused appellant’s requested charge on identification, and refused to grant a mistrial when the State attempted to impeach one of appellant’s witnesses by referring to a prior conviction for assault.

Early one morning Mrs. Jo Albertson looked out her apartment window and saw someone in her car. She shouted and a man looked up at her and then fled. Within a few minutes appellant was apprehended in the area by police and a CB radio missing from Mrs. Albertson’s car and a coat hanger were found a few feet from where appellant was arrested. The appellant was taken to Albertson’s apartment, where Mrs. Al-bertson identified appellant as the burglar. Mrs. Albertson also identified appellant in court as the burglar.

Appellant contends that Mrs. Al-bertson’s identification testimony was the product of an unduly suggestive pretrial confrontation. Appellant did not object at trial to the identification testimony, as is required to preserve error. See Cole v. State, 474 S.W.2d 696 (Tex.Cr.App.1971); Lopez v. State, 468 S.W.2d 365 (Tex.Cr.App. 1971); Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). In any event, Mrs. Al-bertson stated at trial that she saw appellant’s face clearly during the commission of the offense, and “The reason I can identify him ... is the look on his face when he was sitting in the car.” The pretrial confrontation took place within fifteen minutes of the commission of the offense, and although the appellant was handcuffed according to police, Mrs. Albertson did not recall any handcuffs. There is no other evidence to suggest that the confrontation was conducive to irreparable misidentification. We conclude from the totality of the circumstances that the identification of appellant was not the product of an unduly suggestive pretrial confrontation. The testimony was properly admitted. See and compare Winn v. State, 503 S.W.2d 816 (Tex.Cr.App.1974); Ellingsworth v. State, 487 S.W.2d 108 (Tex.Cr.App.1972); Cole v. State, supra.

Appellant contends that the trial court erred in refusing to give his requested jury instruction on misidentification. The requested instruction generally charged the jury to take into account the credibility of the identification testimony and also charged the jury that the identity of the appellant as the offender had to be proved beyond a reasonable doubt before they could convict the appellant. No issue of mistaken identity was raised by the evidence. Even assuming an issue had been raised, it would have been error for the trial court to single out the facts concerning Anderson’s identification of appellant and magnify them before the jury. This would constitute a comment on the weight of the evidence. See Laws v. State, 549 S.W.2d 738 (Tex.Cr.App.1977); Art. 36.14, V.A.C.C.P., and the cases there cited under Note 743. Moreover, misidentification is not an affirmative defense, and appellant was adequately protected by the requirement that the jury find beyond a reasonable doubt that appellant committed the offense. See Ward v. State, 505 S.W.2d 832 (Tex.Cr.App. 1974). Appellant’s requested instruction was properly refused.

Finally, appellant contends that the prosecutor improperly attempted to impeach appellant’s rebuttal witness Thomas Duane Gentry by asking him whether he had a prior conviction for assault. Appellant objected before Gentry answered the question; the trial court sustained the objection and instructed the jury to disregard the question. Ordinarily, a trial court’s prompt instruction to disregard will render an improper question harmless, unless the error is of such a serious nature that the harm cannot be removed. Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977); Pringle v. State, 511 S.W.2d 35 (Tex.Cr. App.1974). Although the prosecutor’s question was improper, we note that Gentry only testified briefly at the trial, and the substance of his testimony was testified to in much greater detail by two of appellant’s other witnesses. We hold that the trial court’s instruction to disregard was sufficient to cure the error. Cf. Salazar v. State, 432 S.W.2d 957 (Tex.Cr.App.1968).

The judgment is affirmed.

CLINTON, J., concurs in the result.

Before the Court en banc.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

The panel opinion contains the dictum, “Appellant did not object at trial to the identification testimony, as is required to preserve error.” The appellant points out that he filed a pretrial motion which alleged that the eyewitness’s identification was tainted, that a hearing on the issue was held outside the presence of the jury, and that the trial court ruled that the identification was admissible. When such procedures are followed, another objection before the jury is not required to preserve error. V.A. C.C.P., Article 40.09, subd. 6(d)(3). See Roberts v. State, 545 S.W.2d 157 (Tex.Cr. App.1977); Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975).

In two cases (Cole v. State, 474 S.W.2d 696 (Tex.Cr.App.1971); Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969)) which are cited in the panel opinion, there had been no objection or hearing out of the presence of the jury; therefore, an objection before the jury was required. In Lopez v. State, 468 S.W.2d 365, 367 (Tex.Cr. App.1971), the third case cited in the panel opinion, there is a dictum to the effect that error was waived by the appellant’s failure to object to the testimony of two eyewitnesses, even though a hearing was held outside the presence of the jury to determine the admissibility of one eyewitness’s identification. It will be noted that this dictum is not necessary to the opinion, for the Court went on to consider the merits. It also will be noted that Lopez had not been cited for this proposition before the panel opinion in this case was delivered. We take this opportunity to overrule the dictum in Lopez, and to state that no objection before the jury to identification testimony is required when the testimony has been ruled admissible after a hearing outside the presence of the jury.

Like the Lopez opinion, the panel opinion goes on to consider the merits of the appellant’s ground of error and disposes of it properly by holding that the identification was admissible.

The next contention in the appellant’s motion for rehearing involves his requested jury instruction on misidentification. In its opinions on the State’s motion for rehearing in Wilson v. State, 581 S.W.2d 661, (Tex. Cr.App.1979), the Court en banc has rejected the appellant’s contention.

The appellant’s motion for rehearing is overruled.

DOUGLAS and DALLY, JJ., concur in the result.

      . “When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury.”


author: ROBERTSON, Justice.

text:
    Ralph WILLIAMS, Individually and Ralph Williams, Inc., Appellant, v. STATE OF WASHINGTON, Appellee.
    No. 19452.
    Court of Civil Appeals of Texas, Dallas.
    March 20, 1979.
    Rehearing Denied April 18, 1979.

      Jerry N. Jordan, Turner, Rodgers, Sailers, Jordan & Calloway, Dallas, for appellant.
    David R. Snodgrass, Wynne & Jaffe, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   ROBERTSON, Justice.

The State of Washington, appellee, filed suit against Ralph Williams, individually, and Ralph Williams, Inc., appellants, to enforce a judgment rendered in Washington against appellants. The trial court granted the State’s motion for summary judgment. On original submission, we reversed and rendered judgment for appellants holding that the Washington judgment was not final and, thus, not entitled to full faith and credit. Williams v. State of Washington, 566 S.W.2d 54 (Tex.Civ.App.— Dallas 1978). The supreme court disagreed with that holding, reversed our decision, and remanded the case to us for consideration of the other points raised by appellants. State of Washington v. Williams, 22 Tex.Sup.Ct.J. 102 (Jan. 10, 1979). Since we hold that appellee established its right to recover by proper summary judgment evidence, we affirm. Tex.R.Civ.P. 166-A (1976); Silcott v. Wilson, 579 S.W.2d 291 (Tex. Civ.App.— Dallas 1979, no writ).

Appellants raise six arguments: (1) the Washington judgment is penal in nature and not entitled to full faith and credit; (2) the enforcement of this judgment would offend Texas public policy; (3) the judgment is vague and thus, is unconstitutional and void; (4) the Washington Consumer Protection Act, Wash.Rev.Code Ann. §§ 19.-86.010-920 (1978), is unconstitutional; (5) the Washington trial court erred in awarding attorney’s fees; and (6) the Texas trial court erred in refusing to allow appellants to complete discovery.

U.S.Const. Art. IV, sec. I, states: “Full Faith and Credit shall be given in each State to the public Acts, Records and Judicial Proceedings of every other state.” Congress has implemented this portion of the Constitution in 28 U.S.C. § 1738 (1953). Appellants contend, however, that judgments that are penal in nature are not entitled to full faith and credit, citing Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892). Although this is a valid exception to the full faith and credit doctrine, we hold that this judgment based on the Washington Consumer Protection Act is not penal, and thus, must be enforced.

Huntington v. Attrill, supra, defines the limits of penal statutes not entitled to sister state enforcement. The supreme court stated:

The question whether a statute of one state, which in some aspects may be called penal, is a penal law, in the international sense, so that it cannot be enforced in the courts of another state, depends upon the question whether its purpose is to punish an offense against the public justice of the state, or to provide a private remedy to a person injured by the wrongful act. 146 U.S. at 674, 13 S.Ct. at 230. [Emphasis added].

The court went on to say that criminal or quasi criminal statutes were the only types of penal statutes that fall under the exception to the full faith and credit doctrine. It is in this context that the Washington Consumer Protection Act must be evaluated.

In State v. Ralph Williams’ North West Chrysler Plymouth, Inc., 82 Wash.2d 265, 510 P.2d 233, 242 (1973), the Washington Supreme Court held that the Washington Consumer Protection Act is not penal by virtue of its provisions for imposition of civil penalties in a civil action. See also Johnston v. Beneficial Management Corp., 85 Wash.2d 637, 538 P.2d 510, 515 (1975). The statute itself also provides guidelines by which it is to be interpreted. Wash.Rev. Code Ann. § 19.86.920 (1978) provides:

The legislature hereby declares that the purpose of this act is to complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive and fraudulent acts or practices in order to protect the public and foster fair and honest competition. It is the intent of the legislature that, in construing this act, the courts be guided by the interpretation given by the federal courts to the various federal statutes dealing with the same or similar matters.

The Federal Trade Commission Act, 15 U.S.C. §§ 41-58 (1973) is the federal counterpart of the Washington Consumer Protection Act. F.T.C.A. sections providing for civil penalties have been interpreted by federal courts, and have been found to be remedial, as opposed to penal, in nature. United States v. J. B. Williams Co., Inc., 354 F.Supp. 521 (S.D.N.Y.1973), affirmed in part on other grounds 498 F.2d 414 (2d Cir. 1974); United States v. St. Regis Paper Co., 355 F.2d 688, 693 (2d Cir. 1966); see Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138 (1929); Gimbel Bros. v. Federal Trade Commission, 116 F.2d 578 (2d Cir. 1941); Regina Corp. v. Federal Trade Commission, 322 F.2d 765 (3d Cir. 1963). The decretal portions of the judgment rendered below consist essentially of the following lettered paragraphs:

A. Describes to whom the injunctive portions apply.
B. Details the injunctive relief to protect consumers from further violations of the statute.
C. Orders restoration to consumers of monies or property acquired by violations of the statute, with further orders or judgments as the court deems necessary.
D. Allows consumers to pursue any other available remedies.
E. Assesses costs including attorney’s fees of $389,258.20 against defendants.
F. Assesses civil penalties of $279,000 for violations committed by each defendant.
G. Assesses civil penalties for violations against Ralph Williams, Inc., and Ralph Williams’ North West Chrysler Plymouth, Inc. (not a party to this appeal) each for $10,250.
H. (Deleted from judgment prior to entry.)
I. Retains jurisdiction to enforce compliance.
J. Dismisses proceeding in all other respects and enters decree under Wash. Rev.Code Ann. § 19.86.080.

The trial court also issued an order concerning restitution and attached it to the judgment as an appendix. Appellants were ordered to establish two trust accounts for the purpose of making restitution to consumers. These accounts were to be funded with the civil penalties assessed against appellants. The entire thrust of the judgment is the protection of the consumer. Therefore, we hold that the Washington Consumer Protection Act is not a penal statute and it follows that a judgment based on such statute is not penal in nature.

Appellants next contend that the Texas Deceptive Trade Practice-Consumer Protection Act, Tex.Bus. & Comm.Code Ann. §§ 17.41-63 (Vernon Supp.1979) and the Washington Consumer Protection Act are so dissimilar that the enforcement of these judgments would be against Texas public policy. We find no merit in this contention. The policy underlying both statutes is the protection of the consumer from false, misleading or deceptive advertising. That the Washington statute utilizes different means than the Texas statute to accomplish the same goal does not make the enforcement of this judgment violate Texas public policy.

Next, appellants argue that the Washington trial court erred in its award of attorney’s fees and that the Washington Consumer Protection Act is unconstitutional. Both of these arguments are collateral attacks upon the merits of the judgment. As a general rule, a sister state judgment, final and non-penal in nature, can only be collaterally attacked if void as rendered on these grounds: (1) that the rendering court lacked jurisdiction; (2) that the judgment has been paid or otherwise discharged; (3) that it is a cause of action for which the forum state has not provided a court; (4) or that the judgment was procured by fraud. Milwaukee County v. M. E. White Co., 296 U.S. 268, 271, 272, 56 S.Ct. 229, 231, 80 L.Ed. 220, 227 (1935). If unconstitutionality of a statute on which a judgment is based goes to the merits of the action rather than the jurisdiction of the court, it cannot be raised collaterally by attacking the judgment when it is sued on in another state. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 220, cert. denied, 320 U.S. 210, 63 S.Ct. 1447, 87 L.Ed. 1848 (1942). Neither of appellants’ arguments demonstrate that the judgment was void when rendered. The record reflects that appellants generally appeared in the Washington litigation, that the judgment remains unsatisfied, that these are questions that could be properly raised in Washington, and that fraud was not pleaded or proved. Thus, we overrule these points.

Further arguing that paragraph J of the judgment dismisses the civil penalty portion of the judgment and renders only injunctive relief, appellant claims that the judgment is void due to vagueness. Paragraph J recites that “this proceeding in all other respects is hereby dismissed,” and appellants contend that it directs entry of judgment under Wash.Rev. Code Ann. § 19.86.080 (1974) (injunctive relief), and that no judgment was entered under Wash. Rev. Code Ann. §§ 19.86.020 or 18.86.140 (1974) (civil penalties). Although a judgment may be collaterally attacked if void as rendered, W. T. Rawleigh Co. v. Little, 32 S.W.2d 214 (Tex.Civ.App.—Amarillo 1930, writ ref’d), we hold that the judgment as rendered is not void due to vagueness. Reading the judgment as a whole reveals that civil penalties, as well as injunctive relief, are clearly spelled out and carefully defined. Paragraph J dismisses the proceedings as to any respect not made the subject of any affirmative award elsewhere in the judgment.

Finally, appellants contend that the trial court erred in refusing to allow them to complete discovery. We find no merit in this contention. Absent a showing that the trial court has abused its discretion, its action will not be reversed. Gale v. Spriggs, 346 S.W.2d 620, 625 (Tex.Civ.App. —Waco 1961, writ ref’d n. r. e.); Cutler v. Gulf States Utilities Co., 361 S.W.2d 221, 224 (Tex.Civ.App.—Beaumont 1962, writ ref’d n. r. e.). Through discovery, appellant sought to collaterally attack and to challenge the finality of these judgments. Since we hold that the judgment is not subject to collateral attack, and the supreme court has held it to be final, the trial court did not abuse its discretion in denying further discovery.

Accordingly, we affirm.


author: GUITTARD, Chief Justice.

text:
    David REEDER, Appellant, v. INTERCONTINENTAL PLASTICS MANUFACTURING COMPANY, INC., Appellee.
    No. 19911.
    Court of Civil Appeals of Texas, Dallas.
    March 28, 1979.

      Albon 0. Head, Jr., McLean, Sanders, Price, Head & Ellis, Fort Worth, for appellant.
    Robert W. Turner, Hubbard, Thurman, Turner, Tucker & Glaser, Dallas, for appel-lee.
    Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   GUITTARD, Chief Justice.

David Reeder appeals from an order granting a temporary injunction restraining his use of confidential information to compete with his former employer, Intercontinental Plastics Manufacturing Company. The only grounds of the appeal are that the evidence fails to show a probable injury and that the order does not meet the formal requirements of rule 683, Texas Rules of Civil Procedure. We hold that no abuse of discretion is shown in these respects.

Reeder, a former salesman for Intercontinental, is now employed by a competing company. He admits that unless restrained he intends to use information obtained while working for Intercontinental to call on Intercontinental’s customers in an attempt to secure their business. The information in question concerns Intercontinental’s products, prices, and customers. Reeder contends that there is no evidence that this activity will result in any injury to Intercontinental. We do not agree.

The record contains some evidence of probable injury. Intercontinental is a manufacturer of molded plastic underground boxes for use in the installation of irrigation facilities, municipal water works, and traffic signals. Its business is relatively small in scope and its prospective customers are limited. Under these circumstances, the trial court could reasonably find that any sales Reeder might make to Intercontinental’s customers would probably injure Intercontinental. It was not necessary to prove that Reeder had already taken specific business from Intercontinental, or that his competition would reduce Intercontinental’s overall sales.

We have reviewed the other points raised and conclude that the order states sufficient reasons for its issuance and that the acts sought to be restrained are described with sufficient certainty, apart from any references to other documents, to comply with rule 683.

We are concerned also that this appeal has apparently been used as an occasion to delay trial of the merits. The temporary injunction was issued on December 28, 1978, and, on March 16, 1979, when oral argument was presented, counsel stated that no trial setting had been made and that no formal request had been made for a setting. Such a delay is a practice we have condemned on several occasions. Charter Medical Corp. v. Miller, 547 S.W.2d 77 (Tex. Civ.App.— Dallas 1977, no writ); Town Plaza Fabrics, Inc. v. Monumental Properties of Texas, Inc., 544 S.W.2d 775 (Tex.Civ.App.—Dallas 1976, no writ); Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 689 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.); Crawford Energy, Inc. v. Texas Industries, Inc., 541 S.W.2d 463, 468 (Tex.Civ.App.—Dallas 1976, no writ). Such delays are unnecessary because injunction cases are entitled to precedence and ordinarily can be disposed of on the merits sooner than a temporary order can be reviewed on appeal. Gonzales v. Norris of Houston, Inc., 575 S.W.2d 110 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ); Town Plaza Fabrics, supra; Irving Bank, supra. An appeal from a temporary order should not be employed to obtain an advance ruling on the merits because the only legitimate purpose of a temporary injunction is to preserve the status quo pending trial, and the most expeditious relief from an unfavorable preliminary order is prompt trial on the merits. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 422 (1959); Texas Foundries, Inc. v. Int’l Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 464 (1952); Charter Medical, supra, at 79. The best practice is for the trial judge to set an early trial on the merits, giving it precedence over other cases, at the time he grants a temporary injunction. Gonzales, supra; Charter Medical, supra, at 79; Irving Bank, supra, at 689. Such a practice will obviate most interlocutory appeals. Indeed, the judge can often induce the parties to agree to the terms of a temporary order without presentation of evidence if they are assured that it will be in force only until a trial set within a few weeks. In a simple case like the present, an earlier trial setting, even when a full calendar of cases is already set, will cause no more disruption of the docket than a hearing on the application for temporary injunction. If the case is settled before trial, both hearings will be avoided.

An early setting on the merits may be material in determining the standard of review applicable to temporary orders granting or denying injunctive relief. The question on such appeals is whether the trial judge abused his discretion. Davis v. Huey, 571 S.W.2d 859, 861 (Tex.1978); Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). If an early trial has been set on the merits, the judge’s discretion will be disturbed only for the most urgent reasons. On the other hand, if the duration of the temporary order is uncertain because no trial setting has been made, a stricter review may be necessary because the temporary order may have the effect of accomplishing the main purpose of the suit. Consequently, we strongly urge that an early trial setting be made whenever a temporary injunction is granted and that the date set for trial on the merits be recited in the temporary order. Gonzales v. Norris of Houston, Inc., 575 S.W.2d 110 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ). The same practice is suggested if a temporary injunction is denied and the ultimate relief sought may be ineffective if the trial is substantially delayed.

Affirmed.


text:
    EXXON CORPORATION, Appellant, v. Marvin D. DUNN, Appellee.
    No. 19832.
    Court of Civil Appeals of Texas, Dallas.
    March 29, 1979.
    Rehearing Denied April 25, 1979.
    Melinda Furehe Harmon, Houston, for appellant.
    Thomas C. Railsback, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

The primary question on this appeal is whether appellee Marvin Dunn is a consumer as defined by the Deceptive Trade Prac-tiees-Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.45(4) (Vernon Supp. 1978). Appellee sued appellant Exxon Corporation under section 17.50(b) of the Deceptive Trade Practices-Consumer Protection Act for failing to repair an automobile air conditioner. Appellee was not charged and did not pay for any goods and services in connection with the repair. Trial was to the court, and judgment was rendered for appellee. We hold, however, that appellee is not a consumer as defined by the statute and, therefore, we reverse and render.

Appellee took his five-year-old automobile to an Exxon car-care center to have it filled with gasoline and to have the battery recharged. When he later returned to pick up his car and to pay for the services, he found that the car had overheated. The next day he noticed that the air conditioning unit was not working properly. He returned the car to Exxon who attempted several times to repair the air conditioning unit. Appellee did not pay Exxon, nor was he charged for any of the repairs or attempts to repair the unit.

Tex.Bus. & Comm.Code Ann. § 17.-50(b) confers a cause of action upon a consumer who has been adversely affected by the violation of deceptive acts or practices. The cause of action conferred by section 17.50(b) is restricted to the class of claimants defined as “consumers” within the meaning of section 17.45(4). Bourland v. State, 528 S.W.2d 350 (Tex.Civ.App.— Austin 1975, writ ref’d n. r. e.). Section 17.45(4) defines a consumer as: “[A]n individual, partnership, corporation or governmental entity who seeks or acquires by purchase or lease, any goods or services.” [Emphasis added] Since Dunn did not “purchase or lease” the repairs, he is not a consumer within the definition of section 17.45(4). Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737 (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.); Thompson v. First Austin Co., 572 S.W.2d 80 (Tex.Civ.App.—Fort Worth 1978, writ ref’d n. r. e.).

In Russell the defendant insurance company provided the insured with a rental car and the insured understood that he would have the use of this auto until his car could be replaced. Thereafter the rental car was cancelled, and the insured sued the insurance company under the Deceptive Trade Practices-Consumer Protection Act. The court held that the insureds were not consumers under the statute because they had not purchased or leased the car themselves. The defendant lender in Thompson wrote a letter to the plaintiff borrowers stating that the lender would not foreclose a deed of trust lien against the borrowers’ home while borrowers tried to sell the home and while they kept their payments up to not more than two payments behind. Subsequently, the lender posted the property for foreclosure and the borrowers filed suit under the Deceptive Trade Practices-Consumer Protection Act. In holding that the borrowers were not consumers under the act, the court stated that the borrowers had not purchased services from the lender, but had purchased the use of money with their note and deed of trust. Since the undisputed evidence in this case shows that appellee did not pay for and was not charged for any goods or services by Exxon in the repair of his air conditioning unit, he is not a consumer under the act.

Appellee argues that the damage to his air conditioning unit resulted from the manner in which the battery was charged and cites Boman v. Woodmansee, 554 S.W.2d 33 (Tex.Civ.App.—Austin 1977, no writ) for the proposition that recovery for such damage is actionable under the Deceptive Trade Practices Act. In Boman the jury found that a construction company failed to install a swimming pool in a good and workmanlike manner and that this failure was a producing cause of plaintiff’s damage. In this case, appellee has not elicited evidence of how the battery was charged and thus failed to establish that the charge was not accomplished in a skillful and workmanlike manner. Therefore, Boman is not controlling in this case.

Reversed and rendered.


author: RALEIGH BROWN, Justice.

text:
    Charlotte Ann Campdera BRADFORD, Appellant, v. Antonio Juan CAMPDERA et al., Appellees.
    No. 5277.
    Court of Civil Appeals of Texas, Eastland.
    April 12, 1979.
    Rehearing Denied May 24, 1979.

      Thomas P. Earls, Dallas, for appellant.
    Martin L. Kahn, Dennis G. Brewer, Dennis G. Brewer, Inc., Irving, Stephen R. Bishop, True & Zable, Dallas, for appellees.
   RALEIGH BROWN, Justice.

Charlotte Ann Bradford, mother and managing conservator of two minor daughters, initiated contempt proceedings against Antonio Juan Campdera, father and posses-sory conservator of the two girls, for failure to comply with support orders. Campdera responded by filing a contempt motion against Mrs. Bradford and also an application to change managing conservator from Mrs. Bradford to him which was subsequently nonsuited.

During the course of the trial, Mrs. Bradford caused to be issued a subpoena duces tecum for four witnesses. One of the witnesses procured the services of Martin L. Kahn, a licensed attorney, to file a motion to quash the subpoena. Roy J. True, a licensed attorney, was employed by the other three witnesses to provide similar services. The court quashed all of the subpoenas duces tecum.

In its final judgment, the court vacated and set aside portions of the support order, denied the contempt motions of both parties, denied Mrs. Bradford attorney’s fees and awarded True and Kahn, respectively, the sum of $2000 and $800 attorney’s fees in connection with quashing the subpoenas. Mrs. Bradford appeals. We reverse and render in part and affirm in part.

Appellant contends the court erred in awarding Kahn and True attorney’s fees, and in denying her recovery of reasonable and necessary attorney’s fees incurred in defending against the motion to modify conservatorship filed and nonsuited by Campdera.

Section 11.18, Family Code, provides:

(a) In any proceeding under this subtitle, the court may award costs as in other civil cases. Reasonable attorney’s fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order for fees in his own name.

The court in Derbonne v. Derbonne, 555 S.W.2d 507 (Tex.Civ.App.—Houston (14th Dist.) 1977, writ dism’d) held that Section 11.18 authorizes the discretionary award of attorney’s fees saying:

We hold that the action of the trial court in not awarding attorney’s fees was within its discretion. The original action to change custody brought by appellant and the cross-action to increase child support were proceedings falling under Title 2, Subtitle A of the Texas Family Code dealing with suits affecting the parent-child relationship. See Tex. Family Code Ann. § 11.01(5) (1975), and § 14.08 (Supp. 1976). . . .
It is clear from the wording of this section, and it has been so held, that the award of attorney’s fees in such proceedings is within the court’s discretion. Labowitz v. Labowitz, 542 S.W.2d 922, 927 (Tex.Civ.App. — Dallas 1976, no writ).

In Labowitz v. Labowitz, 542 S.W.2d 922 (Tex.Civ.App. — Dallas 1976, no writ), the court said:

Mrs. Labowitz’s final contention is that the trial court erred in not granting her attorney’s fees because her ex-husband had no reasonable basis for the motion to modify. Since we have concluded that Mr. Labowitz had a reasonable basis for the motion to modify, this point is also overruled. Furthermore, Tex.Family Code Ann. § 11.18(a) (Vernon 1975) gives the trial court discretion to grant attorney’s fees; from the record here we cannot say that the court abused its discretion in refusing to do so. Cf. Forney v. Jorrie, 511 S.W.2d 379, 387 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.).

Mrs. Bradford has not contended that the court abused its discretion in denying her attorney’s fees, therefore, such portion of the judgment will be affirmed.

Clearly, Section 11.18(a) of the Texas Family Code authorizes an award of attorney’s fees and permits such fees to be taxed as costs in a proceeding affecting the parent-child relationship, as in other civil cases. Derbonne v. Derbonne, supra; Labowitz v. Labowitz, supra. Historically, Texas has permitted the recovery of attorney’s fees only if provided by statute or contract between the parties. We must determine if attorney’s fees are recoverable as costs in a proceeding to quash or modify a subpoena duces tecum.

The court in Turner v. Turner, 385 S.W.2d 230 (Tex.1964), discussing the rule, said:

The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or by suit upon a contract. Van Zandt v. Ft. Worth Press, 359 S.W.2d 893, 896(5), Tex.Sup.1962; Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332, 333(2-4), 1938; Wm. Cameron & Co. v. American Surety Co. of New York, 55 S.W.2d 1032, 1035(3), Tex.Com. App., 1932; Sherrick v. Wyland, 14 Tex. Civ.App. 299, 37 S.W. 345, 1896.

The court in New Amsterdam Casualty Company v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.1967) said:

In Mundy v. Knutson Construction Co., 156 Tex. 211, 294 S.W.2d 371 (1956) we reaffirmed the rule previously recognized as settled law in Wm. Cameron & Co. Inc. v. American Surety Co., 55 S.W.2d 1032 (Tex.Com.App.1932) that attorney’s fees are not recoverable either in an action in tort or a suit upon a contract unless provided by statute or by contract between the parties. See also Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.Sup. 1962), and cases there cited, stating the rule that statutory provisions for the recovery of attorney’s fees are in derogation of the common law, are penal in nature and must be strictly construed. (Emphasis ours)

In the case at bar, there is no contractual obligation to authorize attorney’s fees for Kahn and True. Therefore, the award of attorney’s fees must be reversed unless there is statutory authority for such awards.

Tex.R.Civ.P. 177a, under which the clients of Kahn and True sought protection, provides:

A subpoena may also command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein; but the court, on motion made seasonably and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion to quash or modify upon the advancement by the person in whose behalf the subpoena is issued, of the reasonable costs of producing the books, papers, documents or tangible things.

A strict construction of the phrase, “the reasonable costs of producing the books, papers, documents, or tangible things,” does not authorize an award of attorney’s fees taxed as costs. In our examination of the rules, we find no statutory authority for the recovery of attorney’s fees in a proceeding to quash or modify a subpoena duces tecum, and appellees have cited none. We disagree with the contentions of appellees Kahn and True that the protective provisions of Rules 186b and 215a, Tex. R.Civ.P., have application in the instant case. This case deals specifically with Rule 177a, Tex.R.Civ.P., and motions to quash subpoenas duces tecum. The trial court, therefore, erred in awarding attorney’s fees to Kahn and True.

We have considered all other points of error, and they are overruled.

That portion of the judgment which awards attorney’s fees to Kahn and True will be reversed and rendered that they take nothing; in all other respects, the judgment is affirmed.


text:
    Sidney L. KNOPF and Modern Store Fixtures Company, Appellants, v. STANDARD FIXTURES COMPANY, INC., Appellee.
    No. 19837.
    Court of Civil Appeals of Texas, Dallas.
    April 17, 1979.
    Rehearing Denied May 17, 1979.

      Fred Kolodey, Kolodey & Thomas, Dallas, for appellants.
    Richard D. Pullman, Pullman & Schendle, Dallas, Martin Barenblat, Law Offices of Loren Joseph Weinstein, Dallas, for appel-lee.
    Before ROBERTSON, AKIN and STO-REY, JJ.
   ROBERTSON, Justice.

This case involves the construction of the following restrictive covenant:

Grantee herein on behalf of himself, his heirs and successors in title, to the property hereby conveyed, agree that said property will not be sold or leased to any business in direct competition with Standard Fixtures Company, Inc. Standard Fixtures Company, Inc. business is defined as sales or leasing of display racks, hatracks, mannequins and all types of fixtures for the sale and display of clothing and hats. This provision shall be a covenant running with the land and shall be binding upon grantee, its heirs, executors and assigns in title, to the land hereby conveyed, so long as grantor or its successors or assigns are engaged in the business defined above, on land presently owned by grantor and adjacent to that hereby conveyed. (Emphasis added).

Trial was to a jury. At the close of the evidence, however, the court found that only the issue of attorney’s fees was controverted and this was the single special issue submitted to the jury. Based on the uncon-troverted facts and the verdict of the jury, the court rendered judgment for appellee. Appellants complain that the court erred in enjoining their use of the property because the covenant does not restrict use, and also that the award of attorney’s fees is improper or in the alternative, excessive. We hold that the injunctive relief was properly granted but find that the attorney’s fees were excessive. Accordingly, we affirm in part and reverse and remand in part.

In 1965, Standard Fixtures Company, Inc., appellee, purchased an 81,000 square foot tract of property and established its place of business on the southern 29,000 square foot portion of this property. Ap-pellee’s business consists of selling or leasing display racks, hatracks, mannequins and all types of fixtures for the sale and display of clothing and hats. In 1966, Standard conveyed to R. L. Reed as grantee the remaining 52,000 square foot portion of this tract of land. This warranty deed was recorded and contained the restrictive covenant in controversy. Thereafter, appellant Sidney L. Knopf acquired the property from a subsequent grantee of Reed without actual knowledge of the restrictive covenant. In June 1977, Knopf began constructing a building on the premises and in October or November of that year, he erected a sign on the property stating that the site would be the “future location for Modern Store Fixtures, 939 South Lamar Street, Dallas, Texas.” At the time Knopf acquired the property, and until the institution of this suit, Knopf intended to lease to Modern and Modern intended to use this property for the purpose of conducting a business similar to and in competition with that of Standard.

As in other written instruments, the end sought in the construction of restrictive covenants is the ascertainment of the intent of the parties as revealed by the language used in the covenant. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Com.App.1928, opinion adopted). Words and phrases used in a restrictive covenant will be accorded their ordinary and commonly accepted meaning. Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014 (1925). The rule that restrictive covenants must be strictly construed, favoring the grantee and against the grantor and resolving all doubts in favor of the free and unfettered use of the premises, applies only when the intent of the parties is not ascertainable from the terms of the covenant. Atkins v. Fine, 508 S.W.2d 131 (Tex.Civ.App.—Austin 1974, no writ). These are the standards by which we must evaluate this restrictive covenant.

Applying the above rules, the trial court correctly concluded that the words of the restrictive covenant prohibited the sale or lease of the property to a business in direct competition with appellee. We hold that the purpose of the restrictive covenant and the intent of the parties was to prohibit the use of the property by or for any such competitive business. Appellant argues that a use restriction cannot be found in the ordinary and popular sense of the words “sale” or “lease”. This argument fails because these words must be read in conjunction with the entire covenant and also because such a narrow reading would defeat the obvious intent of the parties. If the position taken by appellants was correct, then for all practical purposes this covenant would be rendered meaningless. Under appellants’ theory, they could buy the property as long as they were not currently engaged in business that directly competed with that of appellee. After buying the property, appellants could then, under their construction, open a business in direct competition with appellee. We do not believe that this is what the parties to this covenant intended. See Karam v. H. E. Butt Grocery Co., 527 S.W.2d 481 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.); Sayles v. Owens, 161 S.W.2d 542 (Tex.Civ. App. — Eastland 1942, writ ref’d w. o. m.).

The general rule is that before a party is entitled to injunctive relief, there must be an actual and substantial injury or an affirmative prospect thereof. There is an exception to this rule, however, allowing the enforcement of a covenant restricting the use of land by injunction where a distinct or substantial breach of that covenant is shown. Protestant Episcopal Church Council of the Diocese of Texas v. McKinney, 339 S.W.2d 400 (Tex.Civ.App.—Eastland 1960, writ ref’d). It is undisputed that appellant’s intent was to lease the premises to a business that would be in direct competition with that of appellee. Appellant also placed a sign on the property stating that this was to be the future site of Modern Store Fixtures. We hold that these actions are sufficient to demonstrate a substantial breach of the restrictive covenant and, therefore, that the injunctive relief was properly granted.

In response to a jury finding, the trial court allowed appellee to recover attorney’s fees in the amount of $19,000 for the preparation and trial, and $1,800 for each of the appellate steps pursuant to Tex. Rev.Civ.Stat.Ann. art. 1293b (Vernon 1970). Appellants argue that appellee is not entitled to recover attorneys fees pursuant to the statute because there was no breach of a restrictive covenant. Our above holding is to the contrary and since appellee was the prevailing party attorneys fees were properly granted. Alternatively, appellants argue that the fees allowed were excessive. In determining the reasonableness of attorney’s fees the following factors should be considered:

1. The nature of the case; its difficulties, complexities and importance and the nature of the services required to be rendered by counsel; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 160 (1945); McFadden v. Bresler Malls, Inc., 526 S.W.2d 258 (Tex.Civ.App.—Austin 1975), modified 548 S.W.2d 789 (Tex.Civ.App.—Austin 1977, no writ).
2. The amount of money involved, the client’s interest at stake, and the amount of time devoted by the attorney in the benefit derived by the client; Vaughn v. Gunter, 458 S.W.2d 523, 528 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); McFadden v. Bresler Malls, Inc., 526 S.W.2d 258, 263 (Tex.Civ.App.—Austin 1975), modified 548 S.W.2d 789 (Tex.Civ.App.—Austin 1977, no writ).
3. The time necessarily spent by the attorney, the responsibility imposed upon counsel, and the skill and experience reasonably needed to perform the services; Weatherly v. Longoria, 292 S.W.2d 139, 141 (Tex.Civ.App.— San Antonio 1956, writ ref’d n. r. e.); McFadden v. Bresler Malls, Inc., 526 S.W.2d 258, 264 (Tex.Civ.App.— Austin 1975), modified 548 S.W.2d 789 (Tex.Civ.App.— Austin 1977, no writ).
4.An appellate court has the authority in looking at the entire record to draw on the common knowledge of the justices of the court and their experience as lawyers and judges and to view the matter in the light of the testimony, the record and the amount in controversy. Southland Life Ins. Co. v. Norton, 5 S.W.2d 767, 769 (Tex. Com.App.1928, holding approved), re-mittitur ordered 9 S.W.2d 752, 753 (Tex.Civ.App.—Galveston 1928, no writ).

Applying these standards, we hold that the award of attorney’s fees in this cause was excessive. The only issue before the trial court was the interpretation of a restrictive covenant, and the litigation itself was not complex. The trial in this case lasted two days and involved a hearing on a motion for temporary injunction, two depositions, and essentially three witnesses. It is our opinion and also our experience that $22,600 is not a reasonable attorney’s fee for a lawsuit of this type. Consequently, if appellee files in this court within fourteen days from the date of this opinion a remitti-tur of $9,000 from the award of $19,000 for the preparation and trial of this case, $800 from the award of $1,800 for the preparation of this appeal, and an additional $800 from the award of $1,800 in the event that there is an appeal to the supreme court, we will reform the judgment and affirm. Otherwise, the judgment of the trial court with respect to attorney’s fees will be reversed and remanded.

Affirmed in part; reversed and remanded in part.

      . Article 1293b states: “In an action based on a breach of a restrictive covenant pertaining to real property, the court shall allow a prevailing party who asserted the action for breach of a restrictive covenant, reasonable attorney’s fees, in addition to his costs and claims.”


author: McKAY, Justice.

text:
    TEC ELECTRIC COMPANY, Appellant, v. AMFAC DISTRIBUTION CORPORATION, d/b/a AMFAC Electrical Supply Company, Appellee.
    No. 1205.
    Court of Civil Appeals of Texas, Tyler.
    April 19, 1979.
    Ronald L. Ramey, Houston, for appellant.
    Arthur L. Forbes, Shapiro & Forbes, Houston, for appellee.
   McKAY, Justice.

This is a suit on a sworn account. Summary judgment was rendered for the plaintiff below and the defendant has brought this appeal.

Appellee, an electrical equipment supplier, brought suit against appellant, alleging that appellee had sold to appellant, at the latter’s request and for which the latter agreed to pay, certain merchandise, the purchase price of which was $12,464.09. According to the petition, appellant failed and refused to pay for the merchandise. Appel-lee further alleged that it was entitled to reasonable attorney’s fees under the provisions of Article 2226, Tex.Rev.Civ.Stat. Ann., in the amount of $2,500.00. Attached to the petition was a duly verified affidavit by one Les Ludlow, Jr., stating that he was authorized to execute the affidavit, that within his knowledge the attached account was just and true, due and unpaid, and that all just and legal offsets, payments, and credits known to him had been allowed. There followed copies of 73 invoices and statements made out to appellant on appel-lee’s forms, the last of which was dated June 25, 1974, and showed a balance of $12,464.09.

It appears that a default judgment was entered and later set aside. Appellant’s answer is not contained within the record before this court.

Appellee filed its motion for summary judgment, stating that its claim was for a principal balance of $10,206.20, plus a service charge of $2,257.89 levied pursuant to Article 1302-2.09, Tex.Rev.Civ.Stat.Ann. The motion alleged that appellant’s original answer was in the form of a general denial together with other specific denials that were inapplicable and insufficient to raise any genuine issue of material fact. The prayer was for attorney’s fees in the amount of $2,500.00 plus the aforementioned principal amount and service charge, or alternatively for an order pursuant to Rule 166-A(d), T.R.C.P. Attached to the motion were the following: (1) a sworn affidavit by Ludlow, stating that he was an authorized agent of appellee and fully authorized to make such affidavit on behalf of appellee, that appellant owed appellee the principal amount and service charge alleged, that the exhibits attached thereto were prepared in the regular course of business, accurately reflected the sums owed by appellant, were prepared by one with personal knowledge of the facts “at or near the time of [sic] the transaction was recorded,” and that no payments on the account had been received, all offsets, payments, and credits had been made, 'and the account was wholly unsatisfied; (2) a sworn affidavit by Theodore Coney, stating that he was an authorized agent of appellee and authorized to make such affidavit on behalf of appel-lee, that appellant purchased and received the merchandise shown on the attached exhibits and the prices charged were agreed upon, and that he prepared the attachments in the regular course of business, they were accurate, and he had personal knowledge of the facts at or near the time the transactions occurred; (3) 65 pages of exhibits which are, with two exceptions, copies of the same invoices and statements that were attached to the petition.

The motion for summary judgment was filed on November 21, 1977. Hearing was set for January 9,1978. On the date of the hearing, appellant filed its motion for leave of court to file its response to appellee’s motion for summary judgment less than seven days prior to the date of hearing. There appears in the record before us no specific ruling of the court below on appellant’s motion for leave to file; however, on the same date, appellant’s response to the motion for summary judgment was filed. Said response alleged that appellant never agreed to pay any service charge or interest to appellee; it made several complaints with respect to the adequacy of the Ludlow affidavit attached to the motion for summary judgment, primarily that the statements made in said affidavit were conclusions and would not be admissible on trial, and that the affidavit did not state that it was made on personal knowledge; and it alleged that the attachments were not sworn to or certified as required by Rule 166-A, T.R.C.P. A sworn affidavit by Kenneth R. Carnathan was attached to the response. It stated that he was president of appellant and that he never signed any charge agreement or contract for service charge with appellee on behalf of appellant or himself.

Following the hearing at which counsel for both parties presented their arguments, the trial court found that appellee was entitled to summary judgment in its favor, and entered judgment that appellee recover from appellant the principal sum of $10,-206.06, service charges in the amount of $2,257.89, and $1,000.00 as attorney’s fees.

Appellant’s bases for appeal to this court are manifested in three points of error which complain that the trial court erred in granting summary judgment in favor of appellee because (1) there were deficiencies in the (Ludlow) affidavit attached to and filed in support of the motion for summary judgment, (2) said affidavit did not support recovery of the service charge, and (3) there was no evidence to substantiate the award of attorney’s fees.

The rules governing actions on sworn account have been said to be narrow and certain. Brown v. Clark, 557 S.W.2d 558, 559 (Tex.Civ.App.—Texarkana 1977, no writ). A claim on a sworn account, properly styled and verified, constitutes prima fa-cie evidence of the validity of the claim unless the opposing party files a written denial under oath stating that each and every item of the account is not just or true, or that some specified item or items are not just and true. Id.; Rules 185 and 93(k), T.R.C.P. When the opposing party fails to file such an affidavit, he is not permitted to deny the claim or any item therein. Id.; Oliver Bass Lumber Co., Inc. v. Kay and Herring Butane Gas Co., Inc., 524 S.W.2d 600, 602 (Tex.Civ.App.—Tyler 1975, no writ); Duncan v. Butterowe, Inc., 474 S.W.2d 619, 620 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ). Such a failure amounts to an admission that the account is correct, and therefore, no issue of fact as to the validity of the claim is presented. Brown v. Clark, supra at p. 560; Leyendecker v. Santa Rosa Medical Center, 533 S.W.2d 868, 870 (Tex.Civ.App.—Tyler 1976, no writ); Akins v. Coffee, 376 S.W.2d 953, 954 (Tex.Civ.App.—Dallas 1964, writ dism’d); McDonald v. Newlywed’s, Inc., 483 S.W.2d 334, 337 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.). Conversely, where a proper denial is made by the defendant pursuant to Rules 185 and 93(k), he thereby places in issue the justness and verity of the plaintiff’s account, and the plaintiff must then proceed to present evidence on trial to prove up his account or those specified items controverted by the defendant’s answer. Burtis v. Butler Bros., 243 S.W.2d 235, 236—7 (Tex.Civ.App.—Dallas 1951, no writ).

Rule 166-A, T.R.C.P., sets forth the basis upon which a summary judgment may be rendered, viz., “if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing . . . show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law . . . .” [Emphasis added.]

In order for summary judgment to lie in favor of the plaintiff in a sworn account case, it is necessary that the defendant file no answer or, if he does file an answer, that it fail to conform to the requirements of Rules 185 and 93(k). In the instant case, therefore, the trial court must have predicated its rendition of summary judgment at least in part upon the failure of appellant to deny appellee’s account in accordance with Rules 185 and 93(k).

Appellee moved for summary judgment on the sole ground that it was “entitled to such judgment as a matter of law, in that [appellant’s] Original Answer ... is in the form of a general denial together with other specific denials that are inapplicable and insufficient to raise any genuine issue of material fact.” Appellant has failed to challenge that ground in this appeal. The trial court did not state the specific grounds upon which it relied in rendering summary judgment. It is not necessary that it have done so. Irvin v. Smith, 497 S.W.2d 796, 797 (Tex.Civ.App.—Beaumont 1973, no writ).

Appellant, as noted above, has failed to bring before this court, as a part of the record of the proceedings below, its answer to appellee’s petition. An appellant has the obligation to bring forward a record sufficient to show that the judgment below is erroneous in order to obtain a reversal. Meyer v. Worden, 530 S.W.2d 904, 905 (Tex. Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.); Cloer v. Ford & Calhoun GMC Truck Co., 553 S.W.2d 183, 185 (Tex. Civ.App.—Tyler 1977, writ ref’d n. r. e.). A case may be reversed only upon error disclosed in the record. Texas & New Orleans Railroad Co. v. Hayes, 156 Tex. 148, 293 S.W.2d 484, 487 (1956); Connecticut Indemnity Co. v. Trejo, 366 S.W.2d 948, 949 (Tex. Civ.App.—Houston 1963, no writ).

Inasmuch as appellant has failed to include its answer in the record, we cannot say that the trial court erred in granting the motion for summary judgment. Where no fact issue is drawn by the pleadings and other papers on file, the trial court’s judgment, summarily rendered, is correct. On the state of the record before us, we cannot say that the trial court’s judgment was erroneous. Rule 166-A, T.R.C.P. See Sympson v. Mor-Win Products, Inc., 501 S.W.2d 362, 364 (Tex.Civ.App.—Fort Worth 1973, no writ).

Moreover, in order to render summary judgment, the trial court necessarily concluded that there was no genuine issue as to any material fact and that appellee was entitled to judgment as a matter of law. Rule 166-A, T.R.C.P. Although these conclusions were not expressly stated as findings by the court, they are implicit in any summary judgment. Where the trial court has found that there is no genuine issue as to any material fact and the appellant does not challenge such a finding by his appeal, the reviewing court is not at liberty to review the finding and the summary judgment must be sustained. Malooly Brothers, Inc. v. Napier, 452 S.W.2d 504, 505 (Tex.Civ. App.—El Paso 1970), affirmed, 461 S.W.2d 119 (Tex.1970). In the instant case, the judgment may have been based on a ground not specifically challenged by appellant, and since there was no general assignment of error that the trial court erred in granting summary judgment, the judgment must stand. Id., at 461 S.W.2d 121.

There is another basis upon which the judgment must be affirmed. Appellant complains only of alleged deficiencies in appellee’s summary judgment proof. In a suit on a sworn account filed under Rule 185, however, if the account is not denied under oath as provided in that rule, summary judgment rests not on proof supplied by the pleadings of the successful movant therefor, but rather on deficiencies in the opposing pleadings. Hidalgo v. Surety Savings & Loan Association, 462 S.W.2d 540, 543 n. 1 (Tex.1971); Aztec Pipe and Supply Co., Inc. v. Sundance Oil Co., 568 S.W.2d 401, 404 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n. r. e., 576 S.W.2d 780 [Tex.1978]). See also Wilson v. Browning Arms Co., 501 S.W.2d 705, 706 (Tex.Civ. App.—Houston [14th Dist.] 1973, writ ref’d); Larcon Petroleum, Inc. v. Autotronic Systems, Inc., 576 S.W.2d 873, 877 (Tex. Civ.App.—Houston [14th Dist.] 1979, no writ).

In view of what we have said above, we do not feel it necessary to formally pass upon appellant’s first two points of error. The third point complains of error in the award of attorney’s fees since there was “no evidence presented on this motion [for] summary judgment to substantiate any attorney’s fees.” Appellant argues that only the Ludlow affidavit was considered by the court and it contained nothing about attorney’s fees. Appellee points to an affidavit filed in the case prior to the motion for summary judgment. This affidavit, by ap-pellee’s former attorney of record in the case, Louis Goldfaden, states that, in the affiant’s opinion, $2,000.00 was a reasonable attorney’s fee for this suit. Thus, appellee pled $2,500, presented affidavit proof of $2,000, and was awarded $1,000 in attorney’s fees by the trial court.

We disagree with appellant’s contention that there was no evidence before the trial court on the issue of attorney’s fees, inasmuch as the trial court is required to consider the “pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing . . . ” in determining whether the movant is entitled to summary judgment. [Emphasis added.] Rule 166-A(c). In accordance with the rule requiring liberal interpretation of points of error, however, Rule 418(d), T.R.C.P., we will consider appellant’s third point as presenting the complaint that summary judgment as to the amount of attorney’s fees was improper because the summary judgment proof did no more than raise an issue of fact with respect thereto. Even when the Goldfaden affidavit is considered, the amount of attorney’s fees is not established conclusively. Coward v. Gateway National Bank of Beau mont, 525 S.W.2d 857, 858 (Tex.1975). The amount of attorney’s fees was not liquidated. The trial court is not authorized to make a fact determination with regard to attorney’s fees in a summary judgment case. Brown v. Clark, supra at 561. See also Anderako v. Watson, 559 S.W.2d 916, 917 (Tex.Civ.App.—Waco 1977, no writ).

Since the reasonableness of attorney’s fees is a question of fact and since said fees here were not established as a matter of law, the claim for attorney’s fees must be severed and as severed remanded. Zemaco, Inc. v. Navarro, 580 S.W.2d 616, 621 (Tex.Civ.App.—Tyler, 1979, writ pending); Cicero Smith Lumber Co. v. Gaston, 447 S.W.2d 736, 738 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.).

Accordingly, the judgment of the trial court, insofar as it awards attorney’s fees in the amount of $1,000 to appellee, is reversed, and the severed cause relating to attorney’s fees is remanded to the trial court to determine the amount of reasonable attorney’s fees due appellee; in all other respects the judgment is affirmed.


author: AKIN, Justice.

text:
    Daniel KELLY et al., Appellants, v. Sally Jo Dallas Mallow Kelly DORSETT et al., Appellees.
    No. 19892.
    Court of Civil Appeals of Texas, Dallas.
    April 24, 1979.
    Rehearing Denied May 24, 1979.
    Calvin A. Barker, Jr., Dallas, for appellants.
    Les E. Shackleford, Jr., Dallas, Gerald S. Reamey, Power, Ashley & Kinkeade, Irving, for appellees.

      Before AKIN, ROBERTSON and CARVER, JJ.
   AKIN, Justice.

Plaintiffs, heirs of James B. Kelly, deceased, sued his independent executrix, Sally Jo Dorsett and others, in 1977 for conspiracy and fraud in disposing of certain assets of the decedent. All defendants filed motions for summary judgment on the ground that the statute of limitations had run because plaintiff knew or should have known of the alleged fraud at the time a final accounting was filed in the probate court on December 17, 1971. Consequently, defendants reason that limitations ran in 1975, four years after the final accounting in 1971, and therefore, this suit was barred when it was filed on November 13, 1977. The trial court granted summary judgment on this ground. We hold, however, that under the “discovery rule” the time when the plaintiffs knew or should have known of the fraud was a question of fact and could not be determined on summary judgment. Accordingly, we reverse and remand.

Plaintiffs alleged that the executrix in violation of her fiduciary duty to the estate under the Texas Probate Code entered into a conspiracy with the other defendants to defraud plaintiffs. In this respect, plaintiffs alleged that on November 1, 1970, the defendant executrix sold an apartment complex to her daughter and son-in-law by lending them the purchase money. On May 10, 1971, the apartment complex was resold to the executrix for cancellation of the indebtedness, but the deed was not filed for record until April 26, 1972. The final accounting of the executrix was filed December 17, 1971. During the time the property was held in the name of the executrix’s daughter and son-in-law, the executrix collected all rents and paid all expenses in her individual capacity. On December 30, 1970, the same date on which the apartment complex was sold out of the estate, the executrix conveyed from the estate a residence to appellee Pursley. On March 10, 1972, this property was also reconveyed to the executrix and was treated similarly to the apartment complex. On February 4, 1971, the executrix conveyed out of the estate a third property to defendants Wuensche in exchange for property conveyed to her individually by the Wuensches. The final accounting filed by the executrix on December 17, 1971, showed that the estate received $10,225.76 for the sale of this property, but did not show receipt of any property in exchange as defendants Wuensche allege. The sale contracts on the exchange of properties between the Wuensches and executrix were executed on February 5, 1971, but closing on each occurred on different days and at different title companies. Plaintiffs alleged that these facts constituted a conspiracy to defraud them and that they did not discover the fraud until 1977.

In support of the judgment, defendants argue that since the plaintiff’s petition shows on its face: (1) the alleged fraudulent acts took place in 1971; (2) a final accounting was filed on December 17, 1971; and (3) suit was filed in 1977, the suit is barred by the four year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958). They reason that since plaintiffs had employed an attorney to cheek the final accounting, they knew or reasonably should have known of the alleged fraud at the time of the filing of the final accounting on December 17,1971. We cannot agree. Although the plaintiffs’ petition alleged that the fraud occurred in 1971, it also alleged that plaintiffs did not discover the fraud until July of 1977 and that plaintiffs could not have learned of the fraud by the exercise of due diligence since there was nothing in the final accounting to incite their curiosity.

The statute of limitations for causes of action based on fraud does not commence running until the fraud is discovered or until plaintiff acquires such knowledge as would lead to the discovery of the fraud if reasonable diligence was exercised. Kelley v. Rinkle, 532 S.W.2d 947, 948 (Tex. 1976); Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 739 (1943); Whatley v. National Bank of Commerce, 555 S.W.2d 500, 505 (Tex.Civ.App.—Dallas 1977, no writ). The question, of course, as to whether reasonable diligence would have led to the discovery of the fraud is usually a question of fact. Hays v. Hall, 488 S.W.2d 412 (Tex. 1972); Gaddis v. Smith, 417 S.W.2d 577, 579-81 (Tex.1967). Since the petition here affirmatively pleads facts which makes the discovery rule applicable, the applicability of the statute of limitations is challenged as a defense. Thus, the defendants had the burden of establishing, as a matter of law, that the plaintiffs’ cause of action had been barred by the statute of limitations. Weaver v. Witt, 561 S.W.2d 792, 793-94 (Tex. 1977); Whatley, 555 S.W.2d at 505. This defendants failed to do.

Defendants cite Dodson v. Alamo Funeral Home, 577 S.W.2d 308 (Tex.Civ. App.—San Antonio 1979, no writ) for the proposition that in order to avoid the bar of limitations, the non-movant plaintiffs had the burden of proof on fraudulent concealment to avoid the plea of limitations. Dodson is not in point since no question was presented in that case with respect to the discovery rule; instead, Dodson rested upon fraudulent concealment which has been held to be a plea in confession and avoidance to a limitation plea, thus placing the summary judgment burden on the non-mov-ant. Nichols v. Smith, 507 S.W.2d 518 (Tex. 1974). As we pointed out in Whatley v. National Bank of Commerce, 555 S.W.2d at 503-504, the supreme court in Nichols was careful to limit its holding there to cases of fraudulent concealment and specifically reserved the question concerning the result under the discovery rule. The distinction between burden of proof on summary judgment in the case of fraudulent concealment on the one hand and the discovery rule on the other was sharply made by the supreme court in Weaver v. Witt, where the court stated that “the [discovery] rule is not a plea in confession and avoidance of the statute of limitations, but is the test to be applied in determining when a plaintiff’s cause of action accrued.” 561 S.W.2d at 794. Since plaintiffs pleaded facts sufficient to raise the discovery rule, this case must be reversed and remanded.


text:
    Betty Jean CROSS, Appellant, v. CITY OF DALLAS, Appellee.
    No. 19904.
    Court of Civil Appeals of Texas, Dallas.
    April 24, 1979.
    Rehearing Denied May 24, 1979.

      ■ Richard E. Ward, Street, Swift, Brocker-meyer, Bell, Ward & Tillman, Fort Worth, for appellant.
    Patrick A. Teeling, Asst. City Atty., Dallas, for appellee.
    Before AKIN, CARVER and ROBERTSON, JJ.
   ROBERTSON, Justice.

Betty Jean Cross, appellant, sued the City of Dallas, appellee, for injuries received when she fell into a water meter hole built and maintained by the City. Trial was to a jury on special issues, and the jury rendered a verdict for appellant. The court, however, granted appellee’s motion for judgment non obstante veredicto. We hold that the circumstantial evidence is sufficient for the jury to draw a reasonable inference that the City’s meter reader failed to secure the lid. Accordingly, we reverse and render judgment for appellant on the verdict.

The jury made the following findings: (1) that the City, its agents, servants and employees, failed to properly secure the lid on the water meter; (2) that such omission constituted negligence; (3) that this was a proximate cause of the accident; (4) that Cross did not fail to keep a proper lookout; (5) that the City’s negligence was the sole cause of the occurrence; and (6) that Cross had sustained damages.

For the trial court to grant a judgment non obstante veredicto, it must find that there is no evidence having probative force upon which the jury could have based their findings. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Armstrong v. G. A. C. Leasing Corp., 512 S.W.2d 708 (Tex.Civ.App.—Beaumont 1974, no writ). If there is any evidence of probative value to support the jury’s findings, it is incumbent upon the trial court to render judgment in conformity with the jury’s verdict. Pressley v. Holley, 507 S.W.2d 869 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.). The fact that there is some evidence to the contrary is immaterial. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Brunson v. Brunson, 502 S.W.2d 578 (Tex.Civ.App.—Fort Worth 1973, no writ). In determining the propriety of a judgment non obstante veredicto, this court may consider only evidence which, viewed in its most favorable light, supports the jury findings and must disregard all evidence to the contrary. Brunson v. Brunson, supra; Leonard v. Texaco, Inc., 422 S.W.2d 160 (Tex.1967); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962).

As a general rule, negligence and causation may be established by circumstantial as well as direct evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). A fact is established by circumstantial evidence when it is fairly and reasonably inferred from the evidence presented. Larson v. Ellison, 147 Tex. 465, 217 S.W.2d 420, 421 (1949); Southwestern Transfer Co. v. Slay, 455 S.W.2d 352 (Tex.Civ.App.—Beaumont 1970, no writ).

The record reflects that appellant stepped on an unlocked water meter lid, fell into the water meter hole, and injured herself. The water meter had been read by an employee of the City approximately eighteen days before the accident. Water meter lids are locked to limit access to Water Department personnel, who use a special key to lock and unlock the lids when reading the meters. The lid can be removed without using a key, but only by breaking the plunger, and such action would leave scratches or marks on the locking mechanism. After appellant’s accident, the City examined the lid and its locking mechanism and found no evidence of any damage. The water meter in question services a warehouse, and the assistant manager of that warehouse testified that no plumbing or building maintenance had been performed on the warehouse for at least two months before the accident, that he did not open the lid nor did he observe any of his employees opening it, and that he had not seen any other person tamper with or open the lid for at least two months before the accident.

We conclude that the jury could have reasonably inferred from this evidence that the City negligently failed to lock the water meter lid and that this failure caused the appellant’s damages. See Mims v. Bohn, 536 S.W.2d 568 (Tex.Civ.App.— Dallas 1976, no writ). Consequently, the judgment must be reversed and judgment rendered for the appellant in the sum of $8,915.60, with interest from November 16, 1978. We commend the trial judge, however, for submitting the case to the jury and then considering this question on defendant’s motion for judgment non obstante veredicto rather than granting an instructed verdict. If he had followed the latter course, a new trial would have been required, but on the present record we are able to render a proper judgment, disposing of the controversy.

Reversed and rendered.


author: JAMES, Justice.

text:
    Donald Lee KOCMAN, Appellant, v. Carmaleete KOCMAN, Appellee.
    No. 6037.
    Court of Civil Appeals of Texas, Waco.
    April 30, 1979.

      D. Brooks Cofer, Jr., Cofer & van Over-beek, Bryan, for appellant.
    Elmer McVey, Bryan, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from a judgment in a controversy which had its origin in a divorce suit. The original divorce suit was filed on February 21, 1973, by the wife, Carmaleete Kocman, Appellee in the case at bar against her then husband Donald Lee Kocman, Appellant in the case at bar. Mr. Kocman was duly served, but failed to appear for trial, whereupon a default judgment on May 4, 1973 was taken by Mrs. Kocman against Mr. Kocman in which the court granted a divorce and made an adjudication of their property rights. Among the property rights provisions of said divorce judgment, the home place consisting of a house and lot in Bryan, Texas, together with the furniture and furnishings located therein, save and except Mr. Kocman’s clothing and personal effects, were awarded to Mrs. Kocman. It is not necessary for the purposes of this appeal to detail any further provisions of said judgment. The parties had no children born to their marriage.

Four days after entry of the divorce judgment, to wit, on May 8, 1973, Mr. Koc-man filed a pleading which he called “Motion to Set Aside Default Judgment” but which upon examination is shown to be in truth and in fact a motion for new trial.

On June 29, 1973, an agreed motion for continuance was filed wherein Appellant refers to the “Motion to Set Aside Default Judgment” as a “Motion for New Trial,” which agreed motion, among other things, recites that the parties agreed “that said Motion for a New Trial be continued for not more than ninety (90) days from May 8, 1973, and that same be heard on a date as the Court may hereinafter set.” At the bottom of said agreed motion is shown an order setting “the said Motion for New Trial” on July 27, 1973, at 2 P.M.

No order was ever entered or granted upon said motion; however, a copy of the court’s docket sheets is included in the transcript which purports to show a docket notation as follows dated 7-27-73: “Bill of Review granted, and new trial granted as to property rights only.” In oral argument, in answer to questions propounded from the bench, both parties stipulated that said docket notation was never entered in the court’s minutes.

Bearing in mind the posture of the divorce proceedings and judgment as herein-above outlined, we go on to state that on September 12, 1977, Mrs. Kocman as Plaintiff brought the instant suit against Mr. Kocman as Defendant, asserting that the divorce judgment of May 4, 1973, was a final judgment in which she had been awarded title to and possession of the home place and furniture and furnishings therein situated. She further alleged that ever since said divorce judgment, Mr. Kocman had remained in possession of such property and had threatened her with serious bodily injury in the event she tried to get possession of said property. In said instant suit she prayed for a writ of possession of and for said property, and to enjoin Mr. Kocman from interfering with her use and enjoyment of same.

After trial of the instant case, the trial court entered judgment on October 17, 1978, ordering that a writ of possession be issued in favor of Plaintiff Mrs. Kocman for title and possession of the home place, furniture, and furnishings sued for by her. In said judgment the trial court further recited that the divorce judgment of May 4, 1973, was a “final and subsisting judgment.”

Defendant-Appellant Mr. Kocman appeals from said last-mentioned judgment, contending that there has never been any judicial determination of the property rights of Mr. and Mrs. Kocman; Appellant further argues that after the hearing of July 27, 1973, the trial court granted a bill of review and a new trial as to the property rights as evidenced by the trial court’s entry on the docket sheet bearing date of “7-27-73” as hereinabove quoted. Based upon the foregoing reasons, Appellant says he has never been afforded his day in court insofar as adjudication of property rights is concerned. Appellant concedes that the divorce judgment of May 4, 1973, is a final judgment insofar as the granting of a divorce is concerned, but says it is not a final judgment insofar as it purports to adjudicate the property rights of the parties. We do not agree with Appellant’s contentions.

Rule 329b, Section 3, Texas Rules of Civil Procedure, provides:

“All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.”

Rule 329b, Section 4 in its pertinent parts provides:

“. . . In the event an original motion or amended motion for new trial be not presented within thirty (30) days after the date of the filing thereof, and the judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, such motion will be overruled by operation of law forty-five (45) days after the same is filed, unless disposed of by an order rendered on or before said date. In the event the decision of the motion is postponed by any written agreement as provided in subdivision 3 of this rule then any such original or amended motion, if not determined by the court, will be overruled by operation of law ninety (90) days after the same is filed or on the latest day certain agreed upon, whichever occurs first.”

In the agreed motion for continuance filed by the parties on June 29, 1973, hereinabove referred to, the parties agreed that “motion for new trial may be continued up to a period of 90 days,” but no day certain was in the agreement. In order to comply with Rule 329b, a fixed or certain date for the decision must be agreed upon and set out in the agreement. The agreement in the case at bar shows that no fixed or certain date was agreed upon for a decision. Therefore we are of the opinion and hold that the motion for new trial filed May 8, 1973, was overruled by operation of law 45 days after May 8, 1973, and since there was no appeal made therefrom, it necessarily follows that the divorce judgment of May 4, 1973, became a final judgment in all respects, and was such at the time the case at bar was filed. Holland v. Foley Bros. Dry Goods Co. (Texarkana Tex.Civ.App. 1959) 324 S.W.2d 430, writ refused; Moore v. Decuir (Galveston Tex.Civ.App.1956) 286 S.W.2d 471, writ refused; also see Texas Pacific Indemnity Co. v. Building Material Distributors, Inc. (Dallas Tex.Civ.App.1973) 502 S.W.2d 922, no writ; Hulsey v. Keel (San Antonio Tex.Civ.App.1976) 541 S.W.2d 656, NRE; Hester v. Keefer (Waco CA 1973) 497 S.W.2d 642, no writ.

The court’s docket notation dated 7-27-73 which recites: “Bill of Review granted and new trial granted as to property rights only” has no legal effect, because it is undisputed that said docket notation was never made a part of the court’s minutes, and no formal order was ever entered by the trial court pursuant thereto. Any order or judgment to be effective must be entered of record, and that was not done here. Sigler v. Realty Bond and Mortgage Co. (Comm.App.1940) 135 Tex. 76, 138 S.W.2d 537, opinion adopted.

Under our view of the case, since we hold that the divorce judgment of May 4, 1973, became final 45 days after May 8, 1973, to wit, on June 22, 1973, it necessarily follows that said judgment effectuated a disposition and adjudication of the property rights of the parties. In said divorce judgment, Appellee Mrs. Kocman was awarded the home place and personal property therein situated. This being true, judgment of the trial court ordering a writ of possession in favor of Appellee Mrs. Kocman for the home place and personal property therein was correct.

All of Appellant’s contentions are overruled, and the trial court’s judgment is affirmed.

AFFIRMED.