author: WARD, Justice.

text:
    Richard L. CHANDLER, Individually and d/b/a Skyline Plumbing & Hardware, Appellant, v. EL PASO NATIONAL BANK, Appellee.
    No. 6839.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 31, 1979.

      Richard L. Chandler, El Paso, for appellant.
    Grambling, Mounce, Sims, Galatzan & Harris, Karl O. Bayer, Jr., W. Dean Hester, El Paso, for appellee.
   OPINION

WARD, Justice.

This is an appeal from a Summary Judgment sustaining the contention of the Defendant, El Paso National Bank, that the Plaintiff, Richard L. Chandler, had no cause of action when he sued the Bank for a conspiracy to abuse the garnishment process and wrongfully dishonor his checks. We will reverse and remand for deficiencies in the Summary Judgment proof.

On March 15, 1978, Cashway Building Materials, Inc., as a judgment creditor, applied for a Writ of Garnishment against the El Paso National Bank as garnishee and Mr. Chandler as a judgment debtor. On March 20, 1978, the Bank was served with the resulting Writ of Garnishment, the Writ notifying the Bank that Cashway had recovered a judgment against Chandler in the amount of $1,833.75 with interest thereon at 9%, and that $1,333.75 was still due and unsatisfied on the judgment. The Bank apparently impounded $1,185.88, which was the balance of Chandler’s account, and on March 24th may have impounded two deposits to Chandler’s account of $1,886.50 and $2,872.97. The circumstances surrounding these two items are in dispute and for Summary Judgment purposes have not been established. During the period of March 20th through April 12th, the Bank returned various checks which were issued by Chandler and drawn on his account at the Bank, with the notation on each check of insufficient funds. The Bank answered the garnishment proceedings. Plaintiff Chandler then filed, in the court where the garnishment proceedings were pending, his Motion to Dismiss Garnishment, and on April 4th hearing was had on said motion. After said hearing, and by order dated and entered April 12th, that Court denied the Motion to Dismiss Garnishment, but, acting under the authority granted by Rule 664a, Tex.R.Civ.P. (Supp.1979), modified its previous order granting Writ and Writ issued pursuant thereto, and permitted the release of certain of those funds. A short time thereafter, the present suit was filed against the Bank.

The Bank filed its Motion for Summary Judgment, generally reciting the facts referred to above and, as its specific grounds for the requested relief, stated (1) that from March 20th, when the Bank was served with the Writ of Garnishment, until the Court allowed the Bank to release the excess funds to Chandler, the balance in Chandler’s bank account was effectively frozen and the Bank could release funds from that account only at the risk of multiple liability; (2) that Chandler’s own pleadings admitted that the date of all dishonored checks fell between March 20th and the date that the Order Modifying Writ of Garnishment was actually entered. On the basis of the above, the Bank alleged there was no genuine issue as to material facts, and that the Bank neither wrongfully dishonored the Plaintiff’s checks nor maliciously abused the garnishment process as a garnishee, and that it was entitled to judgment in its favor against the Plaintiff as a matter of law. After a hearing, Bank’s Motion for Summary Judgment was then granted.

On this appeal, the Plaintiff is hampered by the provisions of Rule 166-A, Tex.R.Civ.P., which now provide that issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. From the briefs, it appears that, two days previous to the date on which the hearing was set by the Court, Mr. Chandler filed a plea in opposition to the Motion for Summary Judgment. The trial Court refused to consider this opposition as leave of Court to file the same had not been granted, and the filing was attempted within seven days prior to the date of the hearing. Rule 166-A, Tex.R.Civ.P. The rule places within the sound discretion of the trial court the decision as to whether a pleading filed within seven days of a summary judgment should be considered, and no showing has been made as to how the trial Court abused its discretion. We sustain the action of the trial Court, and consider the present appeal as one where issues were not expressly presented to the trial court by written motion, answer or other response.

One of the Appellant’s points may be considered as attacking the sufficiency of the Summary Judgment proof offered by the Bank. In this connection, we note that two cases, after considering the new provisions contained in Rule 166-A, Tex.R.Civ.P., concluded that a nonmoving party, without filing an answer or other response, can raise for consideration on appeal the insufficiency of the summary judgment proof to support the specific grounds stated in the mo-

tion. Combs v. Fantastic Homes, Inc., 584 S.W.2d 340 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.); Sherman v. Davis, 583 S.W.2d 922 (Tex.Civ.App.—Dallas 1979, no writ). The Supreme Court in a per curiam opinion has now approved that one holding made in the Fantastic Homes case and stated that “a non-movant needs no answer or response to a motion for summary judgment in order to urge on appeal that the movant’s proof was insufficient to establish as a matter of law the specific grounds relied on by the movant.” Fantastic Homes, Inc. v. Combs, (error ref’d n.r.e.), 23 Tex.Sup.Ct.J. 35 (Oct. 20, 1979). Because of this authority, we will therefore consider the Appellant’s point attacking the Bank’s Summary Judgment proof.

Certain defects are noted, and we have concluded that certain ones of them are fatal. First, the Bank’s Motion for Summary Judgment refers, as its support, to attached copies of the Application for Writ of Garnishment, the Writ of Garnishment and the Order Modifying Writ of Garnishment above referred to. Appellant attacks this proof since it was not properly certified as being copies, and therefore did not constitute Summary Judgment proof. The rule now provides that such defects will not be grounds for reversal unless specifically pointed out by objection by the opposing party with opportunity, but refusal to amend. A waiver of the defect is presented because no timely filed answer or other response raised this issue in the trial Court. See Life Insurance Company of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex.1978); Hackett v. Broadway National Bank, 570 S.W.2d 184 (Tex.Civ.App.—Waco 1978, no writ).

Second, the Bank relies on copies of Bank records to establish that the two deposits made to the Appellant’s account and the checks drawn against it all occurred during the time when the Bank was required by the garnishment to freeze the account. All these copies of the Bank records were attached as exhibits to an answer and plea in bar filed by the Bank, are nowhere attached to the Bank’s Motion for Summary Judgment nor made a part thereof for any purpose. A motion for summary judgment must be supported by its own summary judgment proof. Verified copies of documents to constitute part of the summary judgment affidavit must be attached to the affidavit. There is a complete absence of summary judgment proof here regarding the record. Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970).

This defect will require a reversal since a part of the Plaintiff’s cause of action is based on allegations that the Bank falsely answered that it was indebted to the Appellant in the amount of $5,945.35 when it was legally indebted only in the amount of $1,886.50.

Third, the Bank is in error when it refers to and relies upon certain answers made by the Bank to request for admissions and interrogatories, filed by the Appellant, as establishing the amounts owed to the Appellant, the cheeks returned, and the time period during which they were returned. These answers to requests for admissions and interrogatories cannot be relied on by the Bank us they can be used only against the party filing the answers. Jeffrey v. Larry Plotnick Co., Inc., 532 S.W.2d 99 (Tex.Civ.App.—Dallas 1975, no writ).

Since the defects in the movant’s Summary Judgment proof call for reversal, and consequently a retrial, we will dispose of one other matter. The Supreme Court, in the recent case of City of Houston v. Clear Creek Basin Authority, 23 Tex.Sup.Ct.J. 7, 589 S.W.2d 671 (1979), stated the following:

While it would be prudent and helpful to the trial court for the non-movant always to file an answer or response, the non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the moyant’s motion are insufficient as a matter of law to support summary judgment. The non-movant, however, may not raise any other issues as grounds for reversal. Under the new rule, the non-movant may not urge on appeal as reason for reversal of the summary judgment any and every new ground that he can think of, nor can he resurrect grounds that he abandoned at the hearing. (Emphasis added)

We are not attempting to reconcile what was said in the per curiam opinion regarding the Fantastic Homes case, supra, and this quoted statement, but we do con-elude from the quote that where the non-movant has not answered or responded to the motion for summary judgment, an attack can also be presented on appeal where the appellant is attacking the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment, and this brings us to our final discussion.

Certain of the Appellant’s points contend on this appeal that the grounds presented to the trial Court by the Bank’s motions are insufficient as a matter of law to support a Summary Judgment. The Appellant contends that the Bank does not have a defense to his cause of action when it acts under the command of the Writ of Garnishment and impounds the Appellant’s funds, including any amounts that might be in the account in excess of the garnishor’s demand, during the period of time between the service of the Writ and the time when the Court ordered the release of the excessive funds. This point will be overruled as the Bank does have such a defense. See Article 4084, Tex.Rev.Civ.Stat.Ann. (1966). Not only is it illegal for the Bank to release the funds, but it is the duty of a bank to report all the funds that it has on hand belonging to the debtor at the time the writ of garnishment is served and also those coming into its hands up until the time it has to answer. The writ of garnishment impounds the funds in the hands of a bank when the writ is served and also such funds belonging to the debtor up to and including the day the garnishee has to answer. First National Bank in Dallas v. Banco Longoria, S.A., 356 S.W.2d 192 (Tex.Civ.App.—San Antonio 1962, writ ref’d n.r.e.). If the facts are established that the Bank in this case impounded the Appellant’s funds, including an amount in excess of the demand, between the date of the Writ and the date the garnishment court ordered the funds released, then the Bank would be justified in its actions and there would be no wrongful dishonor of any item. Section 4.402, Tex. Bus. & Comm. Code Ann. (Tex. UCC 1968). Under the new rule, the debtor can be protected as he can obtain immediate relief, if it be justified, by applying to the court where the garnishment is pending. Rule 664a, Tex.R.Civ.P. (Supp.1979).

If the facts be established to support the grounds alleged by the Bank in its Motion for Summary Judgment, there would also be no cause of action for civil conspiracy as alleged by the Appellant in his petition. 12 Tex.Jur.2d Conspiracy sec. 16 at 337. The points contending that the grounds presented in the Bank’s motion are insufficient as a matter of law are overruled.

Having considered only the points that are properly before us on this appeal, and having sustained the Appellant’s point raising the insufficiency of the Summary Judgment proof, the judgment of the trial Court is reversed, and the case is remanded.


source: Caselaw Access Project

author: COUNTISS, Justice.

license: Public Domain

text:
    James COLSON, Appellant, v. THUNDERBIRD BUILDING MATERIALS, A Division of L & W Supply Corp., A Delaware Corporation, Appellee.
    No. 9058.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1979.
    Rehearing Denied Nov. 28, 1979.

      Brock, Waters & Pigg, Harold H. Pigg, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Don C. Dennis, Lubbock, for appellee.
   COUNTISS, Justice.

This suit on an Arizona default judgment requires this court to determine whether there was compliance with the statutory method of service utilized in the Arizona suit. We hold that the Arizona court did not acquire in personam jurisdiction of appellant James Colson because appellee Thunderbird Building Materials did not satisfy the requirements of the Arizona service statute it utilized. Consequently, we reverse the judgment of the trial court and render judgment for Colson.

James Colson, a resident of Lubbock, Texas, engaged in work as a subcontractor in the state of Arizona in 1974. A dispute arose related to his construction activity and appellee Thunderbird sued Colson “and Jane Doe Colson, his wife” and others in the Superior Court of Maricopa County, Arizona. Thunderbird utilized Rule 4(e)(2)(a) of the Arizona Rules of Civil Procedure to obtain service by mail on the Colsons in Texas.

Copies of the Arizona summons and complaint were sent by registered mail, return receipt requested, to James Colson and to “Jane Doe Colson” at the Lubbock address where Mr. and Mrs. Colson resided. Mrs. Colson accepted both letters from the postman and signed the return receipts “Mrs. James Colson.” She showed the letters to Mr. Colson either that day or the following day. He consulted an attorney about the matter but took no further action on the case until suit was filed in Texas. The Arizona court subsequently entered a default judgment against the Colsons. This suit against them, seeking to enforce the Arizona judgment, was then filed in Texas.

Following a jury trial, the trial court entered judgment against Mr. Colson for the amount due under the Arizona judgment, plus interest and costs. In this court, Colson presents several points of error. Our disposition of the case requires us to consider only Colson’s contention that the Arizona court never acquired jurisdiction of his person because of faulty service.

The acquisition of in personam jurisdiction of a non-resident defendant was, for many years, grounded on the doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878) which held, inter alia, that a money judgment against a non-resident was void unless there was either personal service of process within the forum state or voluntary appearance of the defendant in the suit. The realities of a mobile, urban population eventually led to the modification of that rule by the “minimum contacts” standard stated in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945):

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

There is now no doubt that “[i]n personam jurisdiction may constitutionally be acquired by extraterritorial service of process on natural persons as in the case of corporations.” Mitchim v. Mitchim, 518 S.W.2d 362, 365 (Tex.1975).

The doctrines announced in International Shoe Co. v. Washington, supra, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228 (1958) are the foundation for the long arm statutes exemplified by Rule 4(e)(2) of the Arizona Rules of Civil Procedure and Article 2031b of the Texas Revised Civil Statutes Annotated. See McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965).

Since Article IV, Section I of the United States Constitution requires each state to give full faith and credit to the judicial proceedings of every other state, an individual sued on a final judgment of a sister state cannot litigate, in the suit to enforce the foreign judgment, the merits of the controversy that led to the judgment. The merits have been determined in the foreign proceeding and are constitutionally entitled to full faith and credit. However, the full faith and credit clause does not prohibit a test of the jurisdiction of the foreign forum because a judgment rendered without jurisdiction is void, not entitled to recognition in any forum and subject to collateral attack. See Country Clubs, Inc. v. Ward, 461 S.W.2d 651 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); Jackson v. Randall, 544 S.W.2d 439 (Tex.Civ.App.—Texarkana 1976, no writ). The jurisdictional defense is usually centered on the contention that there was no personal jurisdiction over the defendant in the foreign forum because (1) the defendant did not have sufficient minimal contacts with the foreign forum to trigger that forum’s long arm statute (i. e., lack of due process) or (2) the steps required by the long arm statute were not followed. Mitchim v. Mitchim, supra, at p. 365.

In evaluating the jurisdictional defense, there are certain principles that must be applied. The long arm statute must not exceed the “minimal contacts” standard, must provide a procedure that is “reasonably calculated to inform non-resident defendants of the pending proceedings” and must not deny them an opportunity to be heard in defense of their interest. Hanson v. Denckla, supra, at pp. 245, 257, 78 S.Ct. 1228.

Texas courts will, upon proper motion as in this case, follow the substantive interpretations of the foreign statute by its courts. However, certain principals and presumptions of Texas law are applicable at the outset. Thus, when a judgment of a sister state regular on its face and authenticated in accordance with 28 U.S.C. § 1738 is introduced in evidence, a prima facie case is established and Texas law presumes that the foreign forum had jurisdiction over the cause and the parties “unless disproved by extrinsic evidence or by the record itself.” A & S Distributing Co. v. Providence Pile, Etc., 563 S.W.2d 281, 283 (Tex.Civ.App.— Dallas 1977, writ ref’d n. r. e.). There is language in several Texas cases that this presumption does not exist if the foreign judgment is a default judgment such as we have in this case. See, e. g., Jackson v. Randall, 544 S.W.2d 439 (Tex.Civ.App.— Texarkana 1976, no writ); Country Clubs, Inc. v. Ward, supra. We believe, however, that the proper view was signaled by Mitch-im v. Mitchim, supra, and clearly enunciated in A & S Distributing Co. v. Providence Pile, Etc., supra, where the court stated that the rule of no presumption “cannot be properly applied to a foreign default judgment in view of the full faith and credit clause and 28 U.S.C. § 1738, since in a suit brought in this state, an attack on the foreign judgment is a collateral attack, and the presumption of regularity applies.”

Also, when a procedure for giving notice and obtaining jurisdiction is statutorily established, that method is generally exclusive and the form prescribed must be followed with reasonable strictness. See Scucchi v. Woodruff, 503 S.W.2d 356, 360 (Tex.Civ.App.—Fort Worth 1973, no writ); Clayton v. Newton, 524 S.W.2d 368, 372 (Tex.Civ.App.—Fort Worth 1975, no writ). This is particularly true when dealing with long arm statutes because they exist on the outer fringes of permissible constitutional acquisition of personal jurisdiction. Thus, when there is a specific statute that sets out the steps that must be taken, the inquiry is not whether the defendant had actual knowledge of the proceeding against him; rather, the question is whether that knowledge was conveyed to him in the manner required by the statute. See Clayton v. Newton, supra; Scucchi v. Woodruff, supra.

The portion of the Arizona long arm statute, Rule 4(e)(2), utilized in this case, reads as follows:

(a) Registered mail. When the whereabouts of a defendant outside the state is known, the serving party may deposit a copy of the summons and complaint in the post office, registering it with a return receipt requested. Upon return through the post office of the registry receipt, he shall file an affidavit with the court showing the circumstances warranting the utilization of the procedure authorized under Section 4(e)(1); and (a) that a copy of the summons and complaint was dispatched to the party being served; (b) that it was in fact received by the party as evidenced by the attached registry receipt; (c) that the genuine receipt thereof is attached; and (d) the date of the return thereof to the sender. This affidavit shall be prima facie evidence of personal service of the summons and complaint and service shall be deemed complete and time shall begin to run for the purposes of Section 4(e)(4) of this Rule thirty (30) days after the filing of the affidavit and receipt.

16 A.R.S. Rules of Civil Procedure, Rule 4(e)(2). The purpose of Rule 4(e)(2) was stated by the Arizona Supreme Court in Houghton v. Piper Aircraft Corporation, 112 Ariz.App. 365, 542 P.2d 24, 26 (1975): “Arizona’s long arm statute is contained in Rule 4(e)(2) of the Arizona Rules of Civil Procedure and is intended to give Arizona residents the maximum privileges permitted by the Constitution of the United States.” Colson had sufficient minimum contact with Arizona to trigger its long arm statute, and he does not contend otherwise.

Colson does contend, however, that the steps required by Rule 4(e)(2)(a) were not followed; thus, the Arizona court never obtained jurisdiction over him and its judgment is void. Specifically, Colson points to that portion of the statute that states: “(b) that it was in fact received by the party as evidenced by the attached registry receipt.” He contends that the “attached registry receipt” presented to the Arizona court showed that the notice addressed to him was delivered to “Mrs. James Colson”. Consequently, there was nothing before the Arizona court to show that the notice was “in fact received” by James Colson.

The Arizona judgment and the affidavit called for in Rule 4(e)(2)(a) were introduced into evidence in the trial court. The judgment appears regular on its face and was initially entitled to the presumptions discussed above. The affidavit, signed by Thunderbird’s Arizona counsel, purports to recite the various facts called for by the rule. Its recitation relative to receipt of the notice is as follows:

3. The Summons and Complaint were received as is evidenced by the attached genuine return registry receipts signed by Mrs. James Colson on December 18, 1974.

The two receipts signed by “Mrs. James Colson” were attached to the affidavit.

We have not found any Arizona cases addressing the question before the court. We may, therefore, look to the law of this and other forums for assistance in reaching our decision. Withers v. Stimmel, 363 S.W.2d 144, 148 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). It is not necessary, however, for us to go beyond the principles already stated.

The affidavit required by Arizona statute is obviously designed to provide the Arizona court with a factual basis for determining whether there has been compliance with the statute. When the statute requires that the affidavit show the summons and complaint were “in fact received” by the party as evidenced by the attached registry receipt, we think it means exactly what it says. At least one of the registry receipts attached to the affidavit must provide evidence of receipt of the summons and complaint by James Colson. Neither does so. They are only evidence of receipt by “Mrs. James Colson” and the affidavit recites that fact. Thus, when the Arizona judgment was entered, there was nothing before the court in Arizona to establish service on James Colson. When a Texas statute requires personal service on a party, service on the spouse will not suffice. See Botella v. Brazos County Water Control, Etc., 574 S.W.2d 208, 210 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). There is no reason to apply a different interpretation to the Arizona statute absent Arizona authority to the contrary.

The Arizona statute was not followed with reasonable strictness and, therefore, the presumptions that initially attached to the judgment are rebutted by the record. The judgment is void because the Arizona court failed to obtain personal jurisdiction of James Colson.

Thunderbird relies on a series of cases from other jurisdictions that have provisions for service by registered mail. See, e. g., Action Industries, Inc. v. Wiedeman, 236 Pa.Super. 447, 346 A.2d 798 (1975) and Howard Ave. Realty Corp. v. McIntosh, 352 So.2d 348 (La.App. 4th Cir. 1977). The cases cited by Thunderbird hold that the particular provisions for service by registered mail do not necessarily require personal delivery to the addressee. We note, however, that none of the statutory provisions in the cases cited by Thunderbird require that there be evidence that the summons and complaint were in fact received by the party as evidenced by the registry receipt. In order to adopt Thunderbird’s position, we would be required to insert language into the Arizona statute that is not there and ignore language that is there.

Thunderbird also contends that Rule 4(d) of the Arizona Rules of Civil Procedure permits personal service by leaving a copy of the summons and complaint at the defendant’s dwelling house or usual place of abode with some person of suitable age and discretion residing there or by delivery to an agent authorized by appointment or by law to receive service of process. Rule 4(d), however, is concerned with direct service by a person authorized to serve process and not with service by registered mail. The provisions of Rule 4(d) are incorporated by reference in Rule 4(e)(2)(b) of the long arm statute but not in Rule 4(e)(2)(a), the section in question.

The judgment of the trial court is reversed and judgment rendered in favor of appellant James Colson.

      . The court also decreed that Thunderbird take nothing against Mrs. Colson. That portion of the judgment was not appealed.

      . The need and the response are described in Hanson v. Denckla, 357 U.S. 235, 250-251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958):
      As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to the flexible standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057.

      . “But it is a mistake to assume that this trend [minimal contacts] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.” Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238 (1958).

      . Therein lies the problem. Several cases that have been decided since McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965) have cited the case as authority for the proposition that foreign default judgments are not entitled to the jurisdictional presumptions. The McKanna case, however, involved a direct attack on a domestic default judgment. When suit is brought on a final judgment from a foreign forum, any attack on the jurisdiction of the foreign court is necessarily collateral and traditionally more difficult.

      . Black’s Law Dictionary 712 (4th ed. 1951) defines “in fact” as follows: “Actual, real; as distinguished from implied or inferred. Resulting from the acts of parties, instead of from the act or intendment of law.” Thus, in the context of this case, “in fact received” means the party actually or really received service in the prescribed manner. The law will not imply or infer that service in some other manner is equivalent to service in the prescribed manner.


author: JAMES, Justice.

text:
    PENGUIN INDUSTRIES, INC., Appellant, v. Glenn M. JUNGE et al., Appellees.
    No. 6004.
    Court of Civil Appeals of Texas, Waco.
    Oct. 31, 1979.
    Rehearing Denied Nov. 29, 1979.

      Rufus S. Garrett, Jr., Garrett, Settle & Callaway, Fort Worth, Turner, Turner & Turner, Cleburne, for appellant.
    John R. MacLean, Cleburne, Tom R. Cof-field, Jr., Dallas, John B. Murphrey and John O’Quinn, Riddle, Murphrey, O’Quinn & Cannon, Houston, for appellees.
   OPINION

JAMES, Justice.

This is a suit for personal injuries and damages arising out of an explosion at a munitions plant in Johnson County, Texas, on July 10, 1973. The Plaintiff-Appellees are injured employees who brought third party actions against Defendant-Appellant Penguin Industries, Inc., alleging, among other things, that Penguin negligently failed to design the crimping head mechanism used to crimp an explosive detonator to the body of a grenade fuse in such a manner that it would contain the explosion of a detonator. In other words, this is a products liability case that was tried in common law negligence rather than strict liability.

Penguin manufactured some equipment for its own use in assembling M-213 hand grenade fuses under a government contract. When Penguin ceased operations in this field, it sold all of its assembly-line equipment to Gearhart-Owens Industries, Inc., (hereinafter called “G-0”), in Cleburne, Texas. G-0 obtained a similar government contract and began assembling hand grenade fuses at their Cleburne plant in March 1973.

The explosion of July 10,1973, resulted in death to four G-0 employees and injuries to approximately thirty other workers. The sixteen cases by Plaintiffs against Penguin were consolidated, and trial thereof was to a jury, which found:

(1) Penguin designed the crimping head mechanism that was in use at the Dorothy Cole position on the occasion in question.

(1A) Penguin failed to design the crimping head mechanism at the Dorothy Cole position in such a manner that it would contain the explosion of a detonator;

(2) that such failure was negligence;

(3) which failure was a proximate cause of the occurrence in question.

(4) Penguin designed the crimping head mechanism at the Dorothy Cole position in such a manner that it would not adequately and consistently perform the crimping operation and as a result could pinch a detonator.

(5) But the jury failed to find that the designing inquired about in No. 4 above was negligence.

(6) The jury did not answer Special Issue No. 6, a proximate cause issue based upon an affirmative answer to Special Issue No. 5.

(7) Glenn M. Junge struck a crimper head containing a detonator or inserted a wooden stick in the detonator.

(8) That such method used by Junge in attempting to remove the detonator from the crimping head was negligence.

(9) But the jury failed to find that such negligence of Junge was a proximate cause of the occurrence in question.

Special Issues 10 through 17 inclusive were damage issues concerning the various Plaintiffs. We will discuss only those damage findings which have been drawn in question by Defendant-Appellant’s points of error. G-O’s worker’s compensation carrier intervened in the suit seeking reimbursements for the respective amounts paid the various Plaintiffs pursuant to such Plaintiffs’ worker’s compensation claims.

After jury verdict the trial court entered judgment in harmony therewith in favor of Plaintiffs against Defendant Penguin in the total amount of $899,821.14, from which Defendant Penguin appeals. We affirm.

Appellant assails the trial court’s judgment upon six points of error, asserting: (1) there was no evidence of probative force to support the jury’s finding that the failure of the crimper head to contain the explosion of the detonator was a proximate cause of the occurrence in question; (2) there was no pleading, proof, or jury issue that the crimping machinery was in essentially the same condition when it left Penguin’s hands as it was at the time of the explosion; (3) the trial court erred in entering judgment for Plaintiffs because Penguin owed them no duty to furnish G-0 an explosion proof crimper head; (4) that the trial court erred in entering judgments in favor of four of the Plaintiffs, to wit, Bocks, Benson, Cain, and Calhoun, because their suits were barred by the two year statute of limitations; (5) that there is no evidence to support the award of damages to the three adult children of Dorothy Cole for her death; and (6) there is no evidence to support the award of damages to the parents of Deborah Ann Spruell, an adult child, for her death. We overrule all of Appellant’s points and contentions and affirm the trial court’s judgment.

We revert to Appellant’s first point, to wit, that there is no evidence to support the jury’s finding that the failure of the crim-per head to contain the explosion of the detonator was a proximate cause of the occurrence in question.

That part of the grenade assembly process pertinent to the case at bar consisted of crimping a detonator to the fuse assembly. The detonator is about five times as explosive as a blasting cap. The instrument used in this crimping process is called a “crimper head” or a “crimping head mechanism.” The crimper heads were stationary devices positioned along and adjacent to the conveyor belt. Such mechanism is basically a cylindrical device made of steel, in which there was a round opening running lengthwise and vertically through the center of such mechanism. The opening was larger at the bottom of the head than at the top. The bottom of the opening was designed so. that it housed a metal piston which moved up and down during the crimping process.

The fuse assembly is housed in a cast metal body, and consists mainly of a time fuse of slow-burning material, a priming cap, striker assembly, handle, safety pin and clip, to all of which assembly is attached a detonator. The detonator is a cylindrical container of explosive made of lightweight metal, three-eighths of an inch in diameter and one and seven-eighths inches in length, closed at one end and open at the other.

During the crimping process in question here, the operator would pick up a fuse assembly off the conveyor belt, pick up a detonator from a tray of detonators placed next to operator’s station, manually slide the detonator upon and onto the lower portion of the fuse assembly, place the fuse assembly and attached detonator in the smaller opening at the top of the crimper head mechanism; whereupon the operator pressed the safety switch and then stepped upon a foot pedal which in turn raised and activated the piston which thereby crimped the detonator to the fuse assembly. Although the outside of the crimper head was basically round and cylindrical, part of this outside surface had been milled down flat so that a safety switch could be positioned on this outside face.

On the G-0 assembly line there were a total of eight such crimping heads, mounted four on each side of a table. A conveyor belt ran down the middle of the table between the crimper heads, with four on each side. A box or tray of detonators was located on the table next to each crimper head mechanism. Each such box or tray would hold about 100 to 110 detonators. One operator was employed to operate each of the eight crimper heads.

The fuse assemblies came down the conveyor belt to the crimping station, whereupon the following procedure was accomplished by the crimping operator: (1) pick up the fuse assembly from the conveyor belt; (2) pick up a detonator out of the box beside the crimper head; (3) place the detonator on the fuse assembly; (4) place the entire unit into the crimper head through the opening in the top of the crimper head mechanism; (5) press the safety switch (located on the flat side of the crimper head) to permit the foot pedal to be engaged; (6) engage the foot pedal which released air pressure that caused the piston inside the crimper head to move upward and press against a plastic washer which crimped the detonator to the fuse assembly. The assembled fuse with attached detonator was then moved from the head, placed upon the conveyor belt, whereupon the process was ready to be repeated.

Plaintiffs contended that the explosion was initiated by the pinching of a detonator in the crimping machine operated by Mrs. Dorothy Cole, and that sparks or fire from that initial explosion ignited boxes of detonators in close proximity to the workers. To the contrary, the Defendant contended that the probable cause of the explosion was the alleged negligence of Plaintiff Glenn Junge by supposedly tapping a crim-per head (which he was holding in his left hand at the time of the explosion), in order to remove the detonator hung inside of the crimper head. It was undisputed that hung detonators were a routine problem, and normally they were not hard to remove or get out of the crimper head. Junge and Mrs. Cole operated stations across the table from each other. Junge testified that he did not recall ever striking the crimper head which he had detached and was holding in his left hand at the time of the explosion; and there is no evidence that Junge actually struck the crimper head. Although at the time of the explosion Junge was holding the detached crimper head in his left hand, his right hand and arm sustained the more serious injuries. The deaths occurred on Mrs. Cole’s side of the table, not on Mr. Junge’s side. Mrs. Cole’s crimper head exploded internally and amputated all of the fingers on her right hand. If the primary explosion had occurred at Junge’s station, Mrs. Cole would have been blown from the assembly table prior to any secondary explosion; whereas, as it was, she had no reaction time. Expert testimony established that the initial explosion occurred inside her crimping head mechanism, due to the pinching of a detonator, and the fact that the fingers of her right hand were amputated corroborates the expert opinions to this effect. Mrs. Cole was right handed. Expert testimony showed that Penguin’s failure to manufacture the crimper head mechanism (located at Mrs. Cole’s station) in such a way that it would contain an internal explosion, caused an explosion resulting in deaths and serious bodily injuries for which the trial court correctly entered judgment for damages.

Neither of the two living eyewitnesses could positively identify the primary cause of the explosion. Mrs. Ola Mae Thomas remembered nothing of the explosion. Mr. Junge testified that he remembered seeing only a flash between his station and that of Mrs. Cole, and could not say whether the flash started from his direction toward Mrs. Cole, or from her direction towards him.

To locate a ring reportedly on Mrs. Cole’s right hand at the time of her death, Johnson County Memorial Hospital took X-rays of her right hand. The X-ray showed that the fingers of her right hand were amputated between the finger joints and that the right thumb joint was dislocated. The hand tissue was shredded up. Her lower jaw was broken. Dr. Arthur L. Raines, a medical doctor and County Health Officer, testified that, based on his study of numerous exhibits, he believed Mrs. Cole’s hand was on the crimper head when it blew up. Had the initial explosion occurred anywhere but within her crimping head, it would have blown her away from the table before an explosion could amputate her fingers. Dr. Raines also testified that because Junge’s left hand held a hung detonator in a crim-per head and his right hand and side sustained the greater injury, his crimper head did not explode while Junge’s hand was on it.

The crimper head mechanisms were purchased by G-0 from Penguin, and were reassembled without alteration, according to the undisputed testimony of Mr. C. D. Barnett, a maintenance man for G-0 who was active in the moving of the equipment from Penguin’s plant in Pennsylvania to G-O’s plant at Cleburne, Texas, and the setting up of such equipment at the Cle-burne plant.

Mr. Austin M. Wortley, Chairman of the Board for Penguin, testified that these crimper heads were supposed to be designed so that they would contain an internal explosion, because if they did not they would not only injure the operator but would also set off secondary explosions.

Approximately half of the top 60% of Mrs. Cole’s crimper head blew apart from the remainder of the said mechanism. A casual inspection of this mechanism shows that it had blown out from an internal explosion. The crimper head which Junge was holding in his left hand was also blown out from the inside.

George Greene, a consulting mechanical engineer, concurred with Dr. Raines’s opinion that the initial explosion occurred in Mrs. Cole’s crimper head and that it was set off from and by internal sources.

Testimony was undisputed that an explosion of the detonator can be brought about by alteration of the detonator case, and there is considerable evidence showing the problems that occurred causing crunching or pinching of the detonator case. Regardless of the actual crimping process being used, it is foreseeable that when the detonator is being attached to the fuse body, there is the possibility of an explosion, and that without a design that will contain the explosion, people will be injured. Moreover, when dealing with an extremely high explosive as this, the standard of care required to prevent injury to the persons operating the equipment is much higher. Mr. Wortley, Penguin’s Board Chairman, foresaw that a crimper head unable to contain an internal explosion would cause injuries upon detonation.

There is ample evidence to show that Penguin breached its duty to exercise ordinary care to design and produce a crimper head mechanism capable of containing an internal explosion, and that the crimper head at Mrs. Cole’s position was designed and manufactured by Penguin.

Appellant contends that there is no evidence of probative value to support the jury’s finding that the failure of the crim-per head to contain the explosion of a detonator was a proximate cause of the explosion in question; that the evidence presents merely surmise and conjecture, and presumptions based upon presumptions. We do not agree. The evidence not only presented physical facts such as recounting of events before and after the explosion by surviving eyewitnesses, personal examination of the victims, X-rays of the victims, analysis of the two exploded crimper head mechanisms, but also the expert opinions of Dr. Raines and Mr. Greene as to how and •where the explosion started and commenced. Both of these experts testified that in their respective opinions the explosion first took place inside Mrs. Cole’s crim-per head. Mr. Greene was further of the opinion that such explosion was caused by the crushing of the detonator assembly during the crimping operations. In our opinion, this evidence is not only legally sufficient but ample to support the jury’s finding of proximate cause in question. See Gulf, C. & S.F. Ry. Co. v. Downs (Dallas, Tex.Civ.App. 1934) 70 S.W.2d 318, writ refused; Phoenix Refining Co. v. Powell (San Antonio, Tex.Civ.App. 1952) 251 S.W.2d 892, NRE; Kettle v. Smircich (Corpus Christi, Tex.Civ.App. 1967) 415 S.W.2d 935, no writ; Vol. 2, McCormick & Ray, Texas Law of Evidence, Section 1395, page 220. Appellant’s Points 1, 2, and 3 are overruled.

Appellant’s Point No. 4 asserts that judgment was improperly rendered in four of the consolidated cases, since the claims of Plaintiffs Bocks, Benson, Cain and Calhoun were barred by the two-year statute of limitations, Art. 5526, Vernon’s Texas Civil Statutes.

The Plaintiffs’ causes of action were based on injuries sustained on July 10,1973, and suits of Bocks, Benson, and Cain were not filed until February 2,1977. The Plaintiff Calhoun did not file suit until February 11, 1977. However, the injuries sustained in the explosion of July 10,1973 were injuries compensable under the Worker’s Compensation Act and these four Plaintiffs did in fact successfully prosecute compensation actions. The respective dates of these four Plaintiffs’ worker’s compensation settlements were as follows: Cain, January 7, 1976; Bocks, January 9,1976; Benson, January 26, 1976; and Calhoun, July 26, 1976.

At the time of the injuries, (July 10,1973) under the terms of Art. 8307, Sec. 6a, Vernon’s Texas Civil Statutes, prosecution of a worker’s compensation claim had the effect of tolling the statute of limitations on third party actions. An employee was required to assert his compensation claim before proceeding against a third party, or otherwise he waived his worker’s compensation claim. Watson v. Glens Falls Insurance Co. (Tex.1974), 505 S.W.2d 793. As a corollary to this requirement, the statute of limitations on the third party action did not begin to run until the compensation claim was settled or a final judgment was obtained against the carrier. Campbell v. Sonford Chemical Co. (Tex.1972), 486 S.W.2d 932.

Effective September 1, 1973, an amendment to Art. 8307, Sec. 6a specifically eliminated the requirement that an injured employee proceed against the compensation carrier before asserting a third party action. Thus, the filing of a worker’s compensation claim no longer tolls the running of the statute of limitations and the third party action is simply governed by the general statute of limitations, Article 5526, V.T.C.S. The question presented by Appellant is whether the running of the statute of limitations in these four causes was governed by Art. 8307, Sec. 6a, as it existed before or after the amendment effective September 1, 1973. The Appellant argues that the statute of limitations on these Plaintiffs’ claims should have begun to run on September 1,1973 when the impediment to third party claims was removed by amendment.

This precise question was presented to the Dallas Court of Civil Appeals in Robinson v. Buckner Park, Inc. (Dallas, Tex.Civ. App. 1977), 547 S.W.2d 60, NRE, and to the Ft. Worth Court of Civil Appeals in Potter v. Crump (Ft. Worth, Tex.Civ.App. 1977), 555 S.W.2d 206, NRE. Both courts held that, when the cause of action arose prior to September 1, 1973, the claimant’s right to bring a third party action would be governed by Art. 8307, Sec. 6a as it existed prior to amendment. Further, the statute of limitations would be tolled for third party actions during the prosecution of the compensation claim per Campbell v. Sonford Chemical Co., supra. We agree with Robinson, supra and Potter, supra.

At the same time that the Legislature amended Art. 8307, Sec. 6a, it also passed Art. 8309, Sec. 3b which provided that no right or remedy “shall be in any way affected by any of the amendments herein made to the original law hereby amended, but all rights, remedies, . shall remain and be in force as under the original law just as if the amendments hereby adopted had never been made . . ” This provision in our opinion clearly provides that the Legislature intended that the amendment to Art. 8307, Sec. 6a have prospective application only. Appellant vigorously argued that no “rights” would be affected if the statute of limitations began running for existing third party actions on September 1,1973, the effective date of the legislation. Appellant, however, overlooks the fact that if these Plaintiffs had filed a third party action prior to the adjudication of their compensation claims, the compensation carrier would surely have claimed that such Plaintiffs had waived their right to worker’s compensation, citing the pre-amendment version of Art. 8307, Sec. 6a. Clearly, the carrier would have had the “right” under the pre-amendment law to avoid an award under such circumstances. In this connection, our Supreme Court in Watson v. Glens Falls Ins. Co. (Tex.1974), 505 S.W.2d 793 at page 795 says: “. the function of Section 6a is to protect both the injured workman’s right to a recovery from a negligent third party and the carrier’s right to recoup funds paid in response to a workmen’s compensation claim from the same negligent third party.” We feel that the Legislature in drafting Art. 8309, See. 3b was referring to the “rights” of all parties affected by the worker’s compensation provisions and not just the “rights” of injured claimants. Thus, we agree with Robinson, supra and Potter, supra, and hold that Art. 8307, Sec. 6a should have prospective application only and overrule Appellant’s point number four.

In Appellant’s fifth and sixth points, respectively, Appellant asserts that there was no evidence of probative force to support an award in wrongful death of damages to the three adult children of Dorothy Cole or to support an award of damages to the parents of an adult child Deborah Ann Spruell. Because of the similarity of the law applicable to recovery for death of a parent by adult children and the law pertinent to recovery of damages by parents for the death of an adult child, these two points will be considered jointly.

First of all, it has been long settled that damages awarded to beneficiaries in wrongful death actions must be based on actual pecuniary losses. Damages by reason of grief, mental anguish, bereavement, and loss of companionship are not recoverable. McGown v. International & G. N. R. Co. (1892), 85 Tex. 289, 20 S.W. 80. At the same time, it has been equally well-settled that “pecuniary” losses may include the loss of services or labor or the loss of other things which may have monetary value. McGown v. International & G. N. R. Co., cited supra; San Antonio & A.P. Ry., Co. v. Long (1894), 87 Tex. 148, 27 S.W. 113; Missouri, K & T Ry. Co. of Texas v. Butts (1910), 62 Tex.Civ.App. 539, 132 S.W. 88, writ ref’d.

Dorothy Cole’s three children were awarded damages of $7500 each. There was admittedly little evidence that Dorothy Cole assisted her children with direct monetary support. Diane Leek, Cole’s only daughter did testify that her mother paid her $10 a week to drive her to work and back. However, all three children testified that Mrs. Cole generously performed services of actual monetary value. David Cole testified that his mother provided babysitting and nursing services for his wife and children when his wife had a baby and that she continued to babysit at least once a month. He testified that his mother would stay with his family whenever they needed help. He further testified that his mother helped him tear down an old house to salvage its lumber and that she also assisted in the construction of his new home. He also testified that she also made clothes for his children. Diane Leek also testified that Mrs. Cole took care of her house and family when Diane was in the hospital and that Mrs. Cole babysat regularly for her. James Cole also testified that Mrs. Cole worked for his family whenever he needed her. He, like his brother, testified that Mrs. Cole had also assisted him in salvaging lumber from an old house for use in the construction of his new home. All three children testified of their mother’s industriousness and financial independence. Although the children had assisted her financially in a one-time legal fee incident to a divorce, she was regularly and gainfully employed and otherwise took care of herself. This testimony, being uncontroverted, is legally sufficient to establish the pecuniary interest of these three children in the life of their mother, and to support the award of money damages for the wrongful death of Dorothy Cole.

Joann Spruell and Ellis Harrington Spruell received damages of $5000 each for the losses suffered as a result of the death of their eighteen-year-old daughter. Testimony established that Debbie Spruell had been a very industrious child. She was a good student in high school and had just finished her freshman year in college, where she had majored in social work, in anticipation of becoming a social worker. She had worked the summer after her high school graduation and was working during the summer of 1973 in order to assist in the expenses of her education. She also assisted in household duties of cleaning and cooking while she was at home. Testimony further established that Debbie had a good relationship with both parents. Both parents testified that they sought and listened to her advice. Her mother testified that Debbie was a very mature young girl and that she (her mother) already depended on her advice and guidance in problems that would develop from time to time. Courts have recognized that “[a]t best, the deceased child’s probable contributions to his parent can be shown only imperfectly.” Missouri-Kansas-Texas Railroad Company v. Pierce (Austin, Tex.Civ.App. 1975), 519 S.W.2d 157, 159, NRE. This evidence, though “imperfect” in some respects, is legally sufficient to support the award of money damages to the parents of Debbie Spruell.

We therefore overrule Appellant’s Points Five and Six.

Having carefully considered all points raised on appeal and finding no reversible error in the record, we affirm the judgment of the trial court.

AFFIRMED.


text:
    Polly F. PEIRCE, Appellant, v. SHELDON PETROLEUM COMPANY, a Delaware Corporation, Appellee.
    No. 9004.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1979.

      William B. Browder, Jr. and James V. Hammett, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.
    Donald M. Hunt, Key, Carr, Evans & Fouts, Lubbock, R. Keith Drummond, Strasburger & Price, Dallas, for appellee.
   COUNTISS, Justice.

This is a constructive trust case. Polly Peirce sued Charlotte Carter, Charles Carter, Sheldon Petroleum Company of Texas and Sheldon Petroleum Company of Delaware alleging various causes of action against them. The trial court granted summary judgment in favor of Sheldon Petroleum Company of Delaware (hereafter Sheldon), and severed the suit against Sheldon from the other causes of action alleged by Peirce against the remaining defendants. In this court, Peirce contends that granting summary judgment was reversible error, because she had established material disputed fact questions relative to her attempt to impose a constructive trust on assets of Sheldon. We disagree and affirm the judgment of the trial court.

Peirce and Charlotte Carter became close personal friends in 1947 when both resided in Maine. Soon after the inception of the friendship, Mrs. Carter solicited $5,000 from Peirce on the representation that the money would be invested in oil properties in Texas by Mrs. Carter’s son, Charles, who was attempting to get started in the oil business. Peirce and Mrs. Carter agreed that, in return for the money, Peirce was to share equally with Mrs. Carter in money and properties that would be paid to Mrs. Carter by Charles. Mrs. Carter later moved to Texas to live with her son and the friendship continued, with Peirce visiting the Carters in Texas frequently but realizing no return on her investment. In 1955, Peirce met with the Carters at their home in Texas, and they engaged in a discussion about money and the oil business which culminated in a letter agreement between Peirce and Mrs. Carter. There is a dispute concerning the agreements that were reached during the meeting, but Peirce’s version is that she was to assume and pay a $5,000 indebtedness of Mrs. Carter’s and give the Carters an additional $15,000 in cash. She was to be credited with a $25,000 investment and, in return for this, Charles was to convey to Mrs. Carter one-half of his interest in his oil company, Carter and Mandel, and Mrs. Carter was to convey one-half of that interest to Peirce. Peirce subsequently gave the money to Mrs. Carter and paid the indebtedness she had assumed. She never received any interest in Carter and Mandel, however, and Charles denies ever receiving any of the money Peirce gave to Mrs. Carter. The Carters and Peirce remained friends until 1972. The relationship then began to deteriorate when Peirce was told by Mrs. Carter that, for her $25,000 investment, she would receive 1,000 shares of stock in Sheldon, valued at six or seven dollars a share. Peirce made several requests of Charles in 1973 for a settlement but to no avail. She then filed suit in 1974 claiming she was entitled to a much larger sum.

Appellee Sheldon, a Delaware Corporation, is the end product of a series of business entities that began in 1948 when Charles Carter and Sam Mandel formed the partnership of Carter and Mandel in order to invest in oil and gas properties. Since the formation of the initial partnership, Charles has maintained primary control of the business and has general powers of attorney from Mandel and other investors. In 1952, in conjunction with an investment counselor, the partnership developed a program for investors seeking tax shelters. An agency account format was used whereby the partnership invested each client’s funds in oil and gas properties. After the initial payout period for the investment, Carter and Mandel received as its fee twenty-seven and one-half percent of the properties acquired while the investor retained the balance. In 1963, Sheldon Petroleum Company of Texas was formed and the property owned by the agency account investors, along with most of Carter and Mandel’s property, was transferred to the corporation in return for shares of stock. In 1969, all remaining property of Carter and Man-del was transferred to Sheldon of Texas in return for a credit for money owed by Carter and Mandel to the corporation and cash. Charles Carter, individually, received none of the stock in the newly formed company. Carter and Mandel’s assets were then comprised solely of shares of stock in Sheldon of Texas. In 1970, Sheldon of Texas became a publicly owned corporation, and in 1973, Sheldon of Texas merged with and became Sheldon Petroleum Company of Delaware, the appellee in this case. This merger was accomplished through an exchange of stock that resulted in the extin-guishment of Sheldon of Texas for all practical purposes. Charles Carter has at all times, throughout the history of the companies, remained in an executive and managerial capacity. He has never made any capital contribution to the partnership nor to either corporation. His sole contribution to the companies has been his services.

The controversy now before the court revolves around Peirce’s attempt to impose a constructive trust on assets of the final corporation, Sheldon of Delaware. Her theory, essentially, is that the various promises given to her by Mrs. Carter and Charles made Charles a constructive trustee with regard to the Carter and Mandel property they promised to convey to her. Peirce also contends that the partnership and successive corporations operated as constructive trustees for the property because of Charles’ control of those companies. Two of the three points of error presented by Peirce contend that material disputed fact questions exist with regard to her constructive trust theory. Her third point of error contends that the trial court applied an incorrect standard of review in evaluating the summary judgment evidence.

When Sheldon moved for summary judgment on the cause of action alleged against it by Peirce, it assumed the burden of establishing by summary judgment proof that, as a matter of law, there was no genuine issue of material fact. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Sheldon (as the defendant) had the burden of showing by uncontroverted evidence, that Peirce had no cause of action against it on the theory or theories alleged in her petition or that it had a complete affirmative defense to the cause of action. The City of Houston v. Clear Creek Basin Authority, 23 Tex.Sup.Ct.J. 7, 11, Tex., 589 S.W.2d 671 (1979). We are required to view the summary judgment evidence in the light most favorable to Peirce and resolve against Sheldon any doubt as to the existence of a genuine issue of material fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952).

The materiality of any factual dispute is keyed to the elements of proof under the theory upon which the party relies. The only cause of action against Sheldon which Peirce relies on in this court is the constructive trust theory. In Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 262-263 (1951), the Supreme Court has adopted the following description of a constructive trust:

“. . .In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrong-doer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer. . .”

It is obvious that the equitable remedy thus described is broad and far reaching and is designed to circumvent technical legal principles of title and ownership in order to reach a just result. One essential requirement of the remedy, however, is that the trust beneficiary must trace the equitable right asserted in an unbroken line to the property he seeks to impress with the trust. See May v. Little, 473 S.W.2d 632, 635-636 (Tex.Civ.App.—El Paso 1971, writ ref’d n. r. e.); Tyler County State Bank v. Shivers, 6 S.W.2d 108, 110 (Tex.Com.App.1928). The right may arise from many varied circumstances. Two common examples are (1) an inheritance that rightfully belongs to the beneficiary, Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493, 498 (1943) and (2) an agreement by the trustee to purchase specific property for the beneficiary. Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979 (1948).

When the beneficiary can point to the specific property that was purchased or inherited, or to its mutation, the tracing burden is met. See Meadows v. Bierschwale, 516 S.W.2d 125, 129 (Tex.1974). When, however, tracing to specific property is impossible because the trustee has commingled the property, the right is not defeated if the beneficiary can trace to the commingled fund. Logan v. Logan, 138 Tex. 40, 156 S.W.2d 507 (1941). If the commingling was wrongful, the burden is on the trustee to establish which property is rightfully the trustee’s. If the trustee is unable to do so, the entire commingled property is subject to the trust. General Ass’n of Davidian S.D.A. v. General Ass’n, Etc., 410 S.W.2d 256, 259 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.). If the commingling is not wrongful, the beneficiary has the burden of establishing the nature and extent of the beneficial interest in the commingled fund. Andrews v. Andrew’s Estate, 326 S.W.2d 203, 207 (Tex.Civ.App.—Waco 1959, no writ).

Unless the tracing requirement is observed with reasonable strictness, any suit on a debt or obligation could be used to impress a constructive trust on the assets of the defendant. In the case now before us, Peirce’s right is based upon the funds she delivered to or expended on behalf of Mrs. Carter. She has traced the funds to Mrs. Carter, but she readily admits they can be traced no further. Peirce is unable to trace the funds to specific property or a commingled fund now owned by Sheldon. She cannot say whether Charles ever received the money, and he denies receiving it. There is undisputed summary judgment evidence from an independent accountant, and also from Sam Mandel (Charles’ partner) and from Charles that Charles never made any capital contribution to the partnership of Carter and Mandel. In view of the record before us, any conclusion as to the ultimate destination of Peirce’s funds would be total speculation. Sheldon has met its summary judgment burden, and Peirce has not demonstrated that a material disputed fact question exists. We, therefore, overrule Peirce’s first and second points of error.

Peirce contends that tracing of her funds is unnecessary because the interest to be conveyed to her in Carter and Mandel, one-fourth of the mineral properties acquired and to be acquired by Charles, is identified and can, therefore, be followed into Sheldon. The flaw in that argument, however, is that the assets of Sheldon are not the res of the trust she seeks to establish. The interest of Carter and Mandel that Peirce contends was to be conveyed to her has mutated into the shares of stock in Sheldon held by Carter and Mandel. If she is entitled to a constructive trust it is only against that stock. Therefore, if Peirce’s view of the tracing requirements is correct, she still cannot reach Sheldon’s assets.

Peirce’s final point of error correctly states the standard of review applicable to summary judgment proceedings. No error is demonstrated in the application of that standard by the trial court, however. The trial court reached the correct result, and we presume it did so by applying the proper standard. We realize that in ruling on the venue of this case, the Dallas Court of Civil Appeals concluded that there was insufficient evidence to establish certain elements of a constructive trust, while we have held, on essentially the same record, that there is no evidence to raise a fact question as to those elements. We are not bound, however, by the factual review of the court that passed on the venue question. In addition, it was not necessary for that court to undertake a “no evidence” review, since the questions it was required to resolve were disposed of by a “sufficiency” review. Peirce’s third point of error is, as a result, overruled.

Our affirmance of the judgment and our discussion of the case is not to be considered as indicating our view of Peirce’s causes of action against the remaining defendants. We are concerned only with her ability to raise factual questions in support of her attempt to establish a constructive trust against Sheldon, and we hold only that she failed to do so. Accordingly, the judgment is affirmed.

      . The venue of this case was resolved in Sheldon Petroleum Co. v. Peirce, 546 S.W.2d 954 (Tex.Civ.App. — Dallas 1977, no writ). The evidence before the Court of Civil Appeals at that time is essentially the same evidence before this court.


author: HUGHES, Justice.

text:
    DIVERSIFIED INSURANCE MANAGEMENT, INC. and John H. Walters, Appellants, v. Ray PHAGAN, Appellee.
    No. 18141.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 1, 1979.
    E. B. Fuller, Austin, for appellants.
    Tark Cook, James G. Baker, Perryton, for appellee.
   OPINION

HUGHES, Justice.

Diversified Insurance Management, Inc., and John H. Walters, plaintiffs, have appealed from a take nothing judgment rendered in favor of a sheriff of Ochiltree County, Texas, Ray Phagan, now deceased. Diversified had sought to obtain a judgment against Phagan for breach of duty in failing to levy under execution on their Tarrant County judgment when instructed by them to do so.

We affirm.

This is a case involving:

1. Two orders of execution presented for levy to the late sheriff of Ochiltree County, Ray Phagan; both against North Texas Royal Investment Corporation.

2. The first execution placed in Pha-gan’s hands at 8:30 a. . m., October 14, 1974, was on the Randall County judgment of Tark Cook and John Scott.

3. The second execution was received at 3:30 p. m. October 14,1974, and was on a Tarrant County judgment of Diversified.

4. Phagan levied on a wheat certificate on November 6, 1974, after the district court of Ochiltree County on November 4, 1974 held that such certificate was the property of North Texas Royal.

5. Phagan, in answer to interrogatories, said he levied on the Randall County execution because he received it before the Tarrant County execution.

6. The wheat certificate was sold and a cashier’s check was given to Cook and Scott, such check being now held by the sheriff of Ochiltree County by agreement.

Diversified’s case rests upon whether or not Phagan, as sheriff, was guilty of a breach of duty under Tex.Rev.Civ.Stat.Ann. art. 6873 (1960) and art. 3825 (1966).

“Art. 6873 — Shall execute process states as follows:
“Each sheriff shall execute all process and precepts directed to him by legal authority, and make return thereof to the proper court, on or before the day to which the same is returnable; and any sheriff who shall fail so to do, or who shall make a false return on any process or precept shall, for every such offense, be liable to be fined by the court to which such process is returnable, as for a contempt, not exceeding one hundred dollars at the discretion of the court, which fine shall go to the county treasury; and such sheriff shall also be liable to the party injured for all damages he may sustain.”
“Art. 3825 — Failure to levy or sell states as follows:
“Should an officer fail or refuse to levy upon or sell any property subject to execution, when the same might have been done, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs, to be recovered on motion before the court from which said execution issued, five days previous notice thereof being given to said officer and his sureties.”

The early case of Lyendecker v. Martin, 38 Tex. 287 (1873) held that a sheriff was not liable on his bond “for failing to make the money on an execution in his hands” unless the plaintiff established that the sheriff received the execution in time to make the money; that he was required to make the levy at a time he had the power to do so, and that he failed to make such a levy.

The gist of Diversified’s appeal is that Phagan was told (by letter from them dated October 29) to levy on the wheat certificate the first day it became available for execution which was on November 4; then waited until November 6 to levy on Cook’s execution at Cook’s request.

Findings of fact and conclusions of law were made by the trial judge. Those pertinent to this appeal read:

“10. That the Sheriff received no special instruction from Mr. Tark Cook, but Mr. Fuller told him to hold the execution until further notice or orders.
“13. That on the 4th day of November, 1974, North Texas Royal Investment Company through one of its officers received a wheat certificate representing grain which became the property of the corporation.
“14. That on the 6th day of November, 1974, the Sheriff levied on the wheat certificate which was then the property of North Texas Royal Investment Corporation.”

Edwin Fuller, attorney for Diversified, admitted from the witness stand that there was testimony that the Cook execution got to Phagan before Diversified’s execution. He further testified to instructing the sheriff to wait until further notice before he executed Diversified’s execution and that both judgments here in question were legally valid.

Cook testified that he did not recall giving the sheriff any instructions concerning the execution when he delivered it to him other than “here it is”. Testimony of Edward Atkinson, lawyer for Pletcher, former litigant now stakeholder, was that Phagan told him that both Cook and Fuller gave him the same instruction “please hold until I further advise you”. He further testified that he followed the instructions “that he merely hold them in his file”, pending receipt of either Fuller or Cook. “The Sheriff stated that he first heard from Mr. Cook, . . . . And to the best of my recollection the sheriff said that Mr. Cook and two other men came to his office and asked him to levy on property under the execution furnished by Mr. Cook, and that he did so, in conformance with the request.”

There is other testimony in the record purporting to support Diversified’s contentions but we hold that there is sufficient testimony to support the findings of fact found by the trial court. We cannot substitute our findings of fact for the trial court where the record has enough evidence of probative nature to sustain trial court’s findings. Warner v. Irving Lumber Co., 584 S.W.2d 893 (Tex.Civ.App.—Dallas 1979, no writ); Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951). We overrule point of error 1.

We also overrule points of error 2 and 5 because the amended findings of fact and conclusions of law did, in fact, include the findings complained of as being omitted.

We overrule point of error 3 because conclusions number 16 and 25 complained of are supported by the evidence. Number 16 concluded that the sheriff complied with all applicable statutes and rules of civil procedure in the levy and later execution sale. Number 25 concluded that the sheriff committed no official breach of any duty imposed by law.

Diversified claimed that Tex.R.Civ.P. 637 was violated by the sheriff because he did not levy on Diversified’s execution on November 4 and waited until November 6 to levy on Cook’s execution.

Tex.R.Civ.P. 637 provides in pertinent part that when execution is delivered to an officer he shall proceed without delay to levy the same upon the property of the defendant.

Tex.R.Civ.P. 636 provides that when an officer receives more than one on the same day against the same person he shall number them as received.

24 Tex.Jur.2d Executions § 58, p. 531 (1961), says “when he has in his hands two or more executions, he must enforce them in the order that he received them”.

The sheriff in this case indisputably levied on the only property of North Texas known to exist and did so within two days of its becoming available to levy. Trial court had sufficient evidence to determine the levy on Cook’s execution as proper. In any case, the property was secured and sold with the proceeds held subject to further determination by a trial court to determine whether Diversified is entitled to any or all of it. Wherein is Diversified injured? The funds are intact and should the trial court determine an interest in Diversified, they will be available to it. All of the cases cited by Diversified in connection herewith have to do with property being disposed of while a valid execution was in the hands of an officer. That is apparently not the case here.

We overrule point of error 4 which avers that the sheriff failed to prove and plead his defense. Sheriff in his original answer, paragraph 4, specially pleaded that he was holding the proceeds of the sale of wheat set out in plaintiff's petition, pending a judicial determination of the proper recipient therefor. We hold this sufficiently pleads an affirmative defense as required by the holding in Mooney v. Producers Grain Co., 531 S.W.2d 699 (Tex.Civ.App.—Amarillo 1975, no writ). We also hold the testimony already recounted as sufficiently supporting same.

Affirmed.


author: MASSEY, Chief Justice.

text:
    Zolia FREDERICK, Appellant, v. R. C. CHANEY, et ux., Appellees.
    No. 18144.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 1, 1979.

      Huey P. Mitchell, Fort Worth, for appellant.
    Sturns, Jackson & Haynes, and Louis E. Sturns, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

Appellees R. C. Chaney and wife, record titleholders to land, sought to enjoin a neighbor, appellant Zolia Frederick, from interfering with their possession and sued to quiet title thereto. The neighbor counterclaimed and sued in trespass to try title based on adverse possession. The case was tried to a jury. After hearing conflicting testimony of the neighbor regarding intent to hold title adversely, the jury found that the neighbor had established title by limitation. The trial court rendered judgment non obstante veredicto, granted the injunction and quieted title in the record titleholders. From this judgment the neighbor appealed.

We reverse and render.

The land involved in this case is a fifteen foot wide strip of land. It is the eastern part of a parcel of land known as Lot 7. The Chaneys are the “record titleholders” of Lot 7. Mrs. Frederick is the Chaneys’ “neighbor”. There is a house located on Mrs. Frederick’s property. It has for many years been her home.

In 1976, the Chaneys wanted to build a rent house on Lot 7. Before they did so, they hired a surveyor to determine the property line. The surveyor found that air-conditioning units attached to Mrs. Frederick’s house extended over the property line into Lot 7. It was further found that Mrs. Frederick had installed and used a clothes line on the fifteen foot strip and planted and maintained trees, bushes and flowers thereon. There was evidence of a fence having been erected on the lot by Mrs. Frederick. A sewer line from Mrs. Frederick’s house had extended under Lot 7 for a considerable length of time.

After the existing situation was discovered, the Chaneys demanded that Mrs. Frederick remove or refrain from continued use, as appropriate. Mrs. Frederick refused to accede. The Chaneys built a fence along the side of Lot 7 which was directly adjacent to the Frederick house. They also instituted this suit against Mrs. Frederick. Their prayer was for an injunction barring her from interfering with their land and also to quiet title to Lot 7. Mrs. Frederick answered and counterclaimed against the Chaneys. In her answer, Mrs. Frederick plead affirmatively that she held title to a fifteen foot wide strip on the eastern portion of the land through limitation title obtained by adverse possession for more than ten years. She also claimed that the Chaneys had unlawfully ousted her from the property. We deem her pleadings to qualify as presenting a suit in trespass to try title by limitation. Additionally, Mrs. Frederick sought an injunction against the Chaneys.

During the trial conflicting testimony was given by Mrs. Frederick. The conflict arose over whether she intended to hold title adversely to the Chaneys’ record title. Other conflicting testimony was heard concerning the actual use of the property during the running of the limitation period. By its verdict the jury found that Mrs. Frederick and her predecessors in title had held peaceable and adverse possession of and had used, cultivated and enjoyed the fifteen foot strip of Lot 7 for at least ten years prior to the date the instant lawsuit was filed by the Chaneys.

On the motion of the Chaneys, the trial court granted them a judgment non obstan-te veredicto. The judgment vested title in the Chaneys, granted their injunction and ordered that Mrs. Frederick take nothing by her counterclaim. Mrs. Frederick appealed on the ground that there was evidence to support the jury’s verdict, that the trial court erred in granting judgment to the Chaneys and because the trial court failed to render judgment for her on the jury verdict.

Our holding is that sufficient evidence was introduced to sustain the jury finding of adverse possession. Though Mrs. Frederick’s testimony was conflicting and inconsistent, if we consider only that which was most favorable to her, it provided adequate support for the jury’s findings. The fact that it was conflicting was not fatal to Mrs. Frederick’s case. In fact, after the jury had considered all the testimony and rendered its verdict the trial court was bound thereby in the rendition of judgment. The trial court was not at liberty to judge the conflicting testimony on its own and rule on the merits of the case through the granting of a judgment notwithstanding the verdict.

We quote from Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1972):

“It is an old and familiar rule that the fact finder may resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952); Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Rose v. O’Keefe, 39 S.W.2d 877 (Tex.Com.App. 1931). 1 McCormick and Ray, Texas Law of Evidence § 3 (1956).”

The above case was one which reversed this court. See 473 S.W.2d 328, 336 (Tex.Civ.App.—Fort Worth, 1971) where we had written:

“In view of Dr. Dannemiller’s testimony on cross-examination there was a negation of the efficacy of ... a prima facie case that Mrs. Eakin was negligent .
“In any event, the adequacy of Dr. Dannemiller’s testimony (even if adequacy be assumed) was canceled by his express statement that if the percentage of halothane in the mixture of gases comprising the anesthetic was not more than one and one-half percent Mrs. Eakin could not be faulted.”

Since this court was reversed in 1972 we have been mindful that where conflicting evidence has been presented at trial, even though the conflict came from the inconsistent testimony from the same witness, and even though as a result there might be a preponderance of evidence of one party over that of his adversary, the decision of the ultimate question is nevertheless the exclusive province of the jury in its verdict. See 36 TEX. DIGEST, “Trial” (1951) at “Questions of Law or of Fact in General”, where appears § 139(1) “(Weight and sufficiency of evidence) — In general”; § 140, “ — Credibility of witnesses”; and § 143, “ — Conflicting evidence.”

Applying the foregoing principle of law to the facts of the instant case, it appears that since Mrs. Frederick made out her prima facie case of limitation title by adverse possession on direct, followed by denial of intent that there be adverse possession on cross-examination, her prima fa-cie case presented questions of fact for the jury. Further, and we repeat, since its verdict for Mrs. Frederick on her claim of adverse possession had support by evidence the trial court was compelled, if it rendered any judgment whatever, to render judgment on the verdict.

Accordingly, we reverse the judgment and render that judgment which the trial court should have rendered.

This cause came on to be heard on the transcript of the record and the same having been reviewed, it is the opinion of this court that there was error in the judgment.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the judgment of the trial court in this cause be and the same is hereby reversed and judgment rendered as follows:

IT IS THE FURTHER JUDGMENT OF this court that Zolia Frederick recover of and from R. C. Chaney, et ux., Louis Chaney, the title and possession of the premises described and bounded as follows: Being a fifteen foot strip in the eastern portion of Lot 7, Block 3, J. W. Burton Addition to the City of Fort Worth, Tarrant County, Texas, more particularly described as:

A fifteen foot strip of land beginning at the northeast corner of Lot 7; thence in a westerly direction fifteen feet along the north boundary line of said Lot 7; thence in a southerly direction and parallel to the east boundary line of said lot to a point in the south boundary line of said lot fifteen feet from the southeast comer of Lot 7; thence along said south boundary line in an easterly direction fifteen feet to the southeast corner of said lot; thence north along the east boundary line of said lot to the place of beginning.

IT IS THE FURTHER JUDGMENT of this court that Zolia Frederick may have her writ of possession to said property.

IT IS THE FURTHER JUDGMENT of this court that R. C. Chaney, et ux. Louis Chaney be and each of them are hereby permanently enjoined from interfering in any manner with Zolia Frederick’s exclusive use, possession of, and title to the above described property. Relief sought by any party and not specifically granted herein is denied.

IT IS THE FURTHER JUDGMENT of this court that all costs both in this court and the trial court, be and the same are hereby taxed against R. C. Chaney, et ux., Louis Chaney, for which the clerk of this court, the clerk of the trial court and Zolia Frederick may have his or her respective execution.

It is further directed that the clerk of this court enter the foregoing as our judgment and that this decision be certified below for observance.


text:
    Dana KNIGHT, Celia Knight, and Thomas J. Williams, Appellants, v. K & K PROPERTIES, INC., d/b/a Louis XIV Apartments, Appellees.
    No. 18177.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 1, 1979.
    Bishop, Larimore, Lamsens & Brown, and Thomas J. Williams, Fort Worth, for appellants.
    Penner, Jones, Keith & Wagner, and Michael F. Felber, Fort Worth, for appellees.
   OPINION

MASSEY, Chief Justice.

K & K Properties, Inc., operated Louis XIV Apartments, and acted as landlord in their rental. Dana Knight and Celia Knight were tenant lessees of a Louis XIV Apartment. A dispute common to landlord-tenant cases arose and the above landlord filed a forcible entry and detainer action against these tenants in Justice Court. Suit in that court was for possession and for an amount less than $100.00 in rents. The Justice Court granted landlord a judgment for possession and costs, but not for rents.

Tenants perfected their appeal from the Justice Court to the County Court at Law. The record brought forward to that court showed the landlord’s cause of action against tenants was for possession and for rents. The landlord did not obtain rent by the judgment in the first court. Before amendment of the pleadings of landlord the tenants yielded possession of the leased premises. Tenants then moved for dismissal of their appeal. Thereafter, by amendment, landlord reduced its pleadings to writing. By this time landlord was in possession; thus it plead in support of its prayer for accrued rents to date tenants delivered up the possession, and also in support of prayer for attorney’s fees.

Following trial in the County Court at Law the judgment rendered was one which denied tenants’ motion to dismiss the appeal, and granted landlord judgment against tenants for $825.00 in rents plus $250.00 as attorney’s fees. Of the $825.00 rents, $570.00 was adjudged to landlord against Williams, surety, as well as tenants. From this judgment the tenants and the surety appealed.

We affirm.

Tenants’ motion was filed on September 27,1978. It was denied as part of the final judgment signed November 30, 1978. The following is a pertinent part of the motion:

“MOTION FOR DISMISSAL
“Now comes Dana Knight, Appellant in the above styled forcible entry and de-tainer appeal by and through his attorney of record, and says that he no longer desires to prosecute this appeal against Louis XIV, and respectfully moves the Court to dismiss the above styled appeal with prejudice for the reason that Appellant has moved from the premises involved in this cause, and that there is no further need or occasion for the prosecution of this appeal.”

Ingeniously, tenants contend County Court’s award of $825.00 as rent was improper. Their theory is that because at the time of trial they no longer were in possession of landlord’s premises, so that landlord’s suit could not have been one for possession, no authority of law entitled landlord to judgment for damages because there was removed from the trial the issue of either landlord’s or tenants’ right to possession. The proceeding involved was one as to which rights are provided by Tex.Rev. Civ.Stat.Ann. art. 3975b (1966), “Judgment against tenant for attorney’s fees and costs of suit”. Therein is provision for collection of attorney’s fees. There is no entitlement thereto by rules of common law.

On hearing before this court, it became obvious that tenants, conceding their legal obligation to landlord for $825.00 as the unpaid rental amount, say that landlord had no authority to litigate such obligation in this case of forcible entry and detainer. They insist that if the landlord desires to recover a judgment for rent it must file a separate suit in a court having jurisdiction of the subject matter and the amount in controversy. Tenants did not discuss the unquestioned right of a plaintiff to attorney’s fees in a proper case of forcible entry and detainer, nor the probable, or in any event possible, want of like entitlement by a plaintiff in a separate suit for rents.

Tenant’s brief includes the following:

“It was urged in the trial court that appellants’ position in this cause would lead to an unjust result, for the reason that tenants who lose their forcible de-tainer cases in the Justice Court could appeal to the County Court, vacate the premises shortly before trial, and be relieved from liability for rent incurred pending appeal. There are three reasons why that argument should be rejected. First, . . . the landlord still has the right to file a new suit for any unpaid rent which may be owed him.
“Second, this argument assumes that the landlord will always be the prevailing party in the County Court. It is at least possible that the tenant could prevail in the County Court, thus entitling the tenant to recover money damages. By vacating the premises prior to the time the appeal is heard by the County Court, the tenant has relinquished this opportunity to recover his damages.
“Finally, and most importantly of all, this argument is invalid simply because the Rules of Civil Procedure do not provide for it. Forcible entry and detainer cases are a special kind of litigation, and may proceed only as expressly authorized by the applicable Rules of Civil Procedure and statutes. The Rules of Civil Procedure and case law make clear that the award of money damages by the County Court is an ancillary remedy to be made only after the issue of possession is resolved. Thus, if the judgment does not award possession to either party, then neither party has ‘prevailed’ on the primary issue and no damages may be awarded. Assuming arguendo that this is an unjust result, the proper remedy is to amend the Rules of Civil Procedure to provide for this circumstance.”

Tex.R.Civ.P. 1, “Objective of Rules”, provides that such objective is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law with the attainment of that objective with as great expedience and dispatch possible and at the least expense practicable.

In the instant case tenant’s argument is that by proper construction of Tex.R.Civ.P. 746, “Only Issue”, providing that in a forcible entry and detainer suit the only issue shall be as to the right of actual possession without inquiry into the merits of title, considered in conjunction with Tex.R.Civ.P. 752, “Damages”, the case ceases to embrace essential disputatious subject matter in that there is no longer a necessity to try out any issue. Their contention is that there is no issue of right to actual possession and therefore no issue can be tried under the numbered and styled cause.

To honor tenants’ contention would be to ignore the provisions of Rule 1. Furthermore, there is no question that the jurisdiction of the County Court had attached. Tenants’ contention would have been obviated if landlord had, before the premises were vacated, filed a different suit for rents in the same court along with a motion that it be consolidated with the pending forcible entry and detainer suit brought foi’ward from the Justice Court. However, had such a course of procedure been adopted by landlord, it would have been an illustration of undue precedence and deference accorded to the forms and technicalities of procedural law to the detriment of the objective to accomplish justice. We can not and will not hold that the jurisdiction, which had attached in the County Court, was limited by the fact that it had been invoked by the forcible entry and detainer form of action.

Our ruling comports with prior decisions. See Shotwell v. Crier, 216 S.W. 262 (Tex.Civ.App.—Fort Worth 1919, writ dism’d); Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368 (1962). Furthermore, any doubt of propriety of our holding would appear removed by the present wording of Tex.R.Civ.P. 752 “Damages”, as amended effective January 1, 1976.

We further hold that by Tex.R.Civ.P. 752 a litigant, under these circumstances, having at any time possessed right to prosecute a type of action in which one of the litigants would or might, if victorious, be entitled to a remedy which included his attorney’s fees. He would not have such entitlement taken away and eliminated by the action of his adversary in an attempted abandonment of the adversary’s own earlier claim.

Judgment is affirmed.