author: COULSON, Justice.

text:
    RIVERSIDE PROPERTIES, Appellant, v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, Appellee.
    No. B2151.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 17, 1979.
    Rehearing Denied Nov. 7, 1979.
    Ben H. Sheppard, Jr., Vinson & Elkins, Houston, James H. DeVries, Frank R. Krok, Thomas J. Smedinghoff, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for appellant.
    Howard V. Rose, Walter H. Mizell, Brown, Maroney, Rose, Baker & Barber, Austin, Dan G. Matthews, Fulbright & Ja-worski, Houston, for appellee.
    Before COULSON, SALAZAR and JU-NELL, JJ.
   COULSON, Justice.

This appeal is from an interlocutory order appointing a receiver for an apartment project and directing the receiver to collect rent and to make payments to the mortgagee on a secured note pending foreclosure.

Appellee Teachers Insurance and Annuity Association of America (Teachers) is the owner and payee of a promissory note dated March 16, 1971 for the original sum of $2,600,000.00. The promissory note is secured by a recorded deed of trust which provides for monthly payments of principal and fixed interest in the amount of $21,-645.00. Payment of additional contingent interest is governed by a formula set out in the note and deed of trust. An assignment of leases and rents was executed in favor of Teachers as further security for the note. Paragraph 12 of the deed of trust calling for the appointment of a receiver of the rents and profits in the event an action to foreclose became necessary reads as follows:

That the holder of said Note, in any action to foreclose this Deed of Trust shall be entitled to the appointment of a receiver of the rents and profits of the herein described premises as a matter of right and without notice, with power to collect the rents, issues, and profits of said premises, due and coming due during the pendency of such foreclosure suit, without regard to the value of the premises or the solvency of any person or persons liable for the payment of the indebtedness involved in said suit. The Grantor for itself and any subsequent owner hereby waives any and all defenses to the application for a Receiver as above and hereby specifically consents to such appointment without notice, but nothing herein contained is to be construed to deprive the holder of. the lien of any other right, remedy, or privilege it may now have under the law to have a Receiver appointed. The provision for the appointment of a Receiver of the rents and profits and the assignment of such rents and profits is made an express condition upon which the loan hereby secured is made.

Riverside Properties (Riverside) obtained the property by mesne conveyances subject to Teachers’ deed of trust and assignment of leases and rents. Riverside then conveyed the property to Barnett Bank of Hollywood (Barnett) reserving an'inferior lien securing the payment of an additional note in the sum of $650,000.00. Simultaneously Barnett leased the property back to Riverside.

The $21,645.00 monthly payment for principal and fixed interest was made to Teachers each month through October 1978. In December 1978 Teachers credited the November 1978 payment to contingent interest which Teachers claimed was due for the years 1974 through 1976. No payments of principal, fixed interest or contingent interest were made for December 1978, January, February or March 1979. Teachers declared the note in default and accelerated the payment of the balance in January 1979.

Teachers filed suit seeking judicial foreclosure of its deed of trust. Ancillary to such suit Teachers’ application for receiver was heard and granted on February 23, 1979.

Appellant contends that the trial court abused its discretion in appointing a receiver. We disagree.

The applicable statute with regard to the appointment of receivers in Texas is Tex. Rev.Civ.Stat.Ann. art. 2293 (Vernon 1971). Article 2293 reads, in pertinent parts, as follows:

Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases:
2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed or materially injured; or that the condition of the mortgage has not been performed and the property is probably insufficient to discharge the mortgage debt.
4. In all other cases where receivers have heretofore been appointed by the usages of the court of equity.

Riverside urges that the trial court should not have appointed a receiver when the property was not in danger of being lost, removed or materially injured and the property was sufficient to discharge the mortgage debt. The receivership clause in the deed of trust and the assignment of leases and rents are viewed by appellant as insufficient to justify the appointment of a receiver unless other reasonable grounds necessitating such an appointment are also established.

In appears that there are no reported Texas cases dealing directly with this point. Appellee therefore directs our attention to a California Court of Appeals case, Barclays Bk. of Cal. v. Super. Ct. for City & Cty. of S. F., 69 Cal.App.3d 593, 137 Cal.Rptr. 743 (Ct. App. 1977), involving an almost identical statute and very similar contractual terms. In Barclays, as here, no contention was made that the property was probably insufficient to discharge the mortgage debt. Consequently, the Barclays court relied on the subdivision of the California statute which tracks our subdivision 4 dealing with the granting of a receiver according to the usages of the court of equity. We agree with the California court that "the express agreement of the mortgagor is an equity that should not ordinarily be ignored.” 137 Cal.Rptr. at 748.

The agreement in the deed of trust, that the appointment of a receiver was an appropriate step in the case of default, has evidentiary weight and was appropriately considered by the trial court. Such a recital is not binding on the court but is one of the equities to be considered. The parties entered into an unambiguous writing defining the consequences of a default. The courts must look to that writing as the expression of the parties’ intention. City of Houston v. R.F. Ball Const. Co., Inc., 570 S.W.2d 75, 78 (Tex.Civ.App.-Houston [14th Dist.] 1978, writ ref’d n.r.e.). The provisions in the deed of trust and security instruments were adequate for the trial court to order the appointment of a receiver under subsection 4 of article 2293 and the usages of equity.

The appellant’s points of error have been duly considered and are overruled.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    CAR, LTD. and Sterling McCall, Appellants, v. James Bailey SMITH, Appellee.
    No. B2047.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 17, 1979.
    Rehearing Denied Nov. 7, 1979.

      Simeon T. Lake, III, Fulbright & Jawor-ski, Houston, for appellants.
    Henry P. Giessel, Alice Giessel, Talbert, Giessel & Stone, Paul L. Malloy, Jr., Houston, for appellee.
    Before COULSON, SALAZAR and JU-NELL, JJ.
   COULSON, Justice.

Appellants, Car, Ltd. and Sterling McCall, appeal from a judgment rendered in favor of appellee, James Bailey Smith, in a suit for personal injuries arising from an automobile collision. The appeal is based on alleged errors in evidentiary rulings.

On September 24, 1975, between noon and 1:00 o’clock p. m. an automobile driven by Fernando Beasley and an automobile driven by appellee, James Bailey Smith, collided at the intersection of Brazos and Gray streets in Houston, Texas. Beasley was employed as a porter by Car, Ltd., an automotive repair business, and had been so employed since September 22,1975, a period of three days. The automobile driven by Beasley was not owned by Beasley or by Car, Ltd., but by a customer and was in the possession of Car, Ltd. for repair.

Beasley’s negligence was stipulated to be a proximate cause of the accident so that, aside from damages, the issue remaining was whether Beasley was in the course and scope of his employment at the time of the accident. Appellee originally named Beasley as a defendant in the case, but Beasley was never served with process or deposed and did not participate in the trial.

In answer to Special Issue No. 1, ten jurors found that, at the time of the occurrence, Beasley was engaged in the service of Car, Ltd. and in the furtherance of its business. Ten jurors also found, in answer to Special Issue No. 2, that Car, Ltd. allowed Beasley to drive a car when it knew, or in the exercise of ordinary care should have known, that Beasley did not have a valid Texas Driver’s License.

After the jury returned its verdict, appellants filed motions for judgment non ob-stante veredicto and to disregard findings of the jury. Each motion was overruled, and judgment was entered on the jury verdict awarding appellee damages in the total amount of $61,280.00. Appellants appeal from the final judgment.

Appellants’ points of error can be considered in three general categories: (1) the admission of testimony from Joseph Con-stantino concerning statements allegedly made to him by Beasley shortly before the accident; (2) the exclusion of certain statements allegedly made by Beasley to James Meredith and Collier Wright after the accident; and (3) the no-evidence and insufficient evidence points raised with regard to Special Issue No. 1.

Appellants contend that Beasley took the customer’s automobile from the premises of Car, Ltd. without the permission of his employers, for his own purposes, and thus was not acting within the course and scope of his employment at the time of the collision. However, Constantino, Beasley’s roommate, who was in the automobile at the time of the accident, testified about statements made by Beasley to Constantino indicating that Beasley was on an errand for his employer. Constantino also testified concerning his own actions and observations. Approximately ten minutes before the accident Beasley picked up Constantino at his place of work in a downtown office building. Constantino stated that they were on the way to their apartment to eat lunch when the accident occurred. When Con-stantino got into the car there was a package or envelope on the front seat which Beasley placed in the back seat. Constanti-no did not know what was in the package, saw no writing on the package and was not told by Beasley what the package contained. Constantino’s testimony included the following:

Question: What are the facts as to whether or not Fernando Beasley was in a hurry?
Answer: Yes, Fernando was in a hurry because he stated to me that his boss would be mad if he did not get the delivery done as quick as possible and told me “I need to hurry, I need to get this thing done.”
Question: What did you and Fernando Beasley intend to do when you reached the destination toward which you were traveling at the time of the accident that occurred on or about September 24,1975?
Answer: He was doing two things at once, getting lunch and delivering this package.
Question: State whether or not the trip that you and Fernando Beasley were making at the time of the accident on or about September 24,1975, was a personal errand for you and Fernando Beasley.
Answer: It was nothing personal for me or Fernando. He had to deliver this package he had for his boss. We were going to stop and get lunch.
Question: Well, as far as you know, was Fernando Beasley on his own time when the accident occurred?
Answer: Not completely, no, he wasn’t.
Question: Were any comments made by Fernando about that object?
Answer: Just that he was going to make some sort of delivery after lunch, or something along that line.
Question: But when Fernando made the comment about making a delivery, did he refer to this object?
Answer: No. He just said he had to deliver something for somebody, for whoever he worked with.
Question: You were going to eat lunch before Fernando delivered the parcel in the back seat?
Answer: That’s what I thought, yeah.
Question: Was this a package that was to be delivered?
Answer: Supposedly. Yeah.
Question: Do you remember that immediately after the accident while everyone was still kind of excited about having had an accident Fernando made some statement about being late?
Answer: Yeah. Like I said, he took off immediately.
Question: What did he say at that time?
Answer: Something about his boss was going to be mad or something like that because he didn’t do whatever he was supposed to do, and, of course, because he wrecked the car.
Question: And the package was to be delivered after you had gone to your apartment and eaten lunch; is that correct?
Answer: Supposedly. Yes.
Question: Do you know whether he was delivering the package for himself or for his employer?
Answer: For his employer. I know it had to be that.

Appellants argue that the foregoing testimony by Constantino was hearsay and thus was not admissible for purposes for proving Beasley’s alleged agency relationship with appellants. While it is true that cases hold that an agency relationship may not be shown merely by declarations or-statements of the alleged agent, McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442, 448 (1941), such testimony can be admitted in order to corroborate other testimony sufficient, prima facie, to show the fact of agency or employment. McAfee v. Travis Gas Corporation, supra.

Appellants admit that Beasley was in their employ on September 24,1975, but contend that Beasley was. under specific orders not to drive any car in the course of his employment. James Meredith, body shop manager for Car, Ltd. in September 1975, testified that the keys to customers’ vehicles were kept in his office and that his permission was required to take the keys to a customer’s car out of his office. Agency may be established either by direct testimony or by circumstantial evidence such as the relationship of the parties and their conduct concerning the transaction at hand. Daugherty v. Wiles, 207 S.W. 900 (Tex.Com.App.1919, opinion adopted); Johnson v. Texas Gulf Coast Corporation, 359 S.W.2d 91 (Tex.Civ.App.-San Antonio 1962, no writ). Thus the jury could have concluded from the information they had that since Beasley was employed by Car, Ltd., had the keys to and was, in fact, driving a car which was in the possession of Car, Ltd., that Beasley was doing so with the permission of Meredith, Beasley’s supervisor, and the person whose permission was required in order to obtain the keys to that car. The jury would then be entitled to consider Beasley’s statements to Constantino in corroboration of an agency relationship circumstantially established between Beasley and Car, Ltd.

Constantino’s testimony relating Beasley’s statements about being on an errand for his boss was also admissible to show Beasley’s state of mind and immediate purpose at the moment of speaking with regard to the trip he was making. Davis v. Argonaut Southwest Ins. Co., 464 S.W.2d 102, 104 (Tex.1971); Great American Indemnity Company v. Elledge, 159 Tex. 288, 320 S.W.2d 328 (1959).

Appellants complain of the trial court’s exclusion of certain testimony offered by James Meredith and Collier Wright concerning conversations they had with Beasley after the accident, wherein he stated that he did not have permission to take the customer’s car. Appellants contend that these statements are admissible as declarations against interest by Beasley. To qualify as a declaration against interest, the statement must be known to the declar-ant, at the time of the utterance, to be in opposition to his pecuniary or proprietary interest. Duncan v. Smith, 393 S.W.2d 798 (Tex.1965). Additionally, the statements are only admissible if the declarant is unavailable as a witness at the time of trial. Liberty Mut. Ins. Co. v. Heard & Jones Drug St., Inc., 446 S.W.2d 911 (Tex.Civ. App.-Amarillo 1969, no writ). The statements attributed to Beasley were not against his pecuniary or proprietary interest when made. Beasley ran a red light and hit appellee’s car. Whether he was driving the vehicle with his employer’s permission and whether he was on an errand for his employer would in no way affect Beasley’s own liability for his negligent act. Appellants would be entitled to sue Beasley for indemnification of their loss caused by Beasley’s negligence. Thus Beasley’s ultimate liability for his negligent act would not have been affected by his statement.

Although Beasley did not participate in the trial of the case, the record does not conclusively show that he was “unavailable.” The use of a declaration against interest is analogous to the use of former testimony of an unavailable witness. In both instances the party offering the evidence must prove unavailability. In Texas this requires proof that the witness is dead, has become insane, is physically unable to testify, is beyond the jurisdiction of the court, his whereabouts is unknown and that diligent search has been made to find him, or he was kept away from the trial by the adverse party. Hall v. White, 525 S.W.2d-860, 862 (Tex.1975); Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697 (Tex.1941). 2C. McCORMICK & R. RAY, TEXAS LAW OF EVIDENCE, 1003 (Texas Practice 2d ed. 1956), states that the generally held view that the declarant must be shown to be dead before a declaration against interest can be received is unnecessarily strict. McCormick advocates that the use of the declaration be allowed when the party who offers it is, for any reason, unable to secure the testimony of the declarant. However, it would seem that a diligent search to determine the de-clarant’s whereabouts should be required. The testimony in the present case was that neither Beasley’s former employer nor his former roommate knew of his whereabouts at the time of trial and that the constable had been unable to serve Beasley at the address provided. However, no proof of a diligent search to determine his whereabouts was offered. Thus, Beasley was not “unavailable” and a declaration against interest made by him would not be admissible.

Appellants maintain that there was no evidence or, in the alternative, insufficient evidence to allow submission of Special Issue No. 1 to the jury. We hold, however, in light of our discussion above, that there was competent evidence which the jury was free to consider in support of the submission of Special Issue No. 1. Therefore, appellants’ no-evidence point is overruled.

In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), gives us guidance in the consideration of appellants’ insufficient evidence points. We must weigh and consider all the evidence in the case, that supporting the verdict as well as that which may be contrary to the verdict. In re King’s Estate, supra. After having considered all of the evidence, we find that there was sufficient evidence to support the submission of Special Issue No. 1 to the jury and to support the affirmative answer given to that special issue. Appellants’ insufficient evidence point is therefore overruled.

All of the appellants’ points of error have been duly considered and are overruled.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Moses MUZQUIZ, Jr. D.B.A. Hancock House, Appellant, v. R. M. MAYFIELD AND CO., Appellee.
    No. A2170.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 24, 1979.

      Thomas C. McMahon, Houston, for appellant.
    B. Lee Ware, Jr., Vinson & Elkins, Houston, for appellee.
    Before BROWN, C. J., and MILLER and PRESSLER, JJ.
   J. CURTISS BROWN, Chief Justice.

Moses Muzquiz, dba Hancock House (appellant) brought this suit against R. M. Mayfield and Co. (appellee) to recover damages caused to appellant’s apartment complex by flooding. After appellant rested, appellee moved for an instructed verdict, and in the alternative, to withdraw the case from the jury and render judgment that appellant take nothing. The motion was granted. Appellant has perfected his appeal and brings forward two points of error.

In the summer of 1973 flooding occurred at Muzquiz’s apartment complex in Pasadena, Texas. Shortly before that time May-field had placed mounds of dirt on property adjoining the southern and eastern sides of the apartment project. When heavy rains hit the area, appellant claims that the piles of dirt impounded the flow of surface water running off from the apartment area. This caused the water to rise on appellant’s property, eventually flooding several units of the apartment complex.

Appellee alleged that appellant did not prove all the elements of his common law negligence cause of action. Specifically, ap-pellee claimed that Muzquiz did not offer any evidence of the natural flow of surface water around the apartment area.

Appellant, in his first point of error, urges that this requirement of proving the natural flow of surface water is not necessary in a negligent diversion of surface water case in regards to urban property.

The Supreme Court of Texas has set the standard to be followed in surface water cases in the absence of a controlling statute. City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex.1968). In the present case, the statute, Tex.Wat.Code Ann. § 5.086 (Vernon 1972), does not apply because the defendant, Mayfield, was not a landowner and thus not within the provisions of the statute. Kraft v. Langford, 565 S.W.2d 223 (Tex.1978). The supreme court in Renault held that to be liable for interference with the flow of surface water, negligence must be shown. The supreme court also stated, that “this is the sound and better rule in the absence of a statute governing the rights and obligations of the parties, at least with respect to urban property where conditions are constantly changing and it is generally difficult or even impossible to establish how surface water flowed ‘when untouched and undirected by the hands of man.’ Id. at 325 (emphasis added). The supreme court acknowledged the difficulties inherent in determining how the surface water flowed before any development in the area. In an urban environment such as Harris County, the natural flow may have been changed numerous times before there is any litigation on the subject. Thus, to force plaintiffs in such actions to prove the natural flow of surface water “untouched by the hand of man” in an urban setting, would frequently deprive such litigants of an adequate remedy. The Restatement of Torts Section 833, comment a (1939) defines interference with the flow of surface water “as an obstruction, diversion or alteration of what has theretofore been regarded as the natural or normal flow of surface waters in the particular place where the interference occurs.” Thus, it is the normal or natural flow of surface water at the time of diversion that should determine the rights of the parties in an urban area.

In cases where there has been an instructed verdict, the Texas Supreme Court has held that an appellate court must “determine whether there is any evidence of probative force to raise fact issues on the material questions presented [and] . . . [t]he court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences.” Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978).

There is evidence in the record that Mayfield placed piles of dirt along the southern and eastern side of the apartments. Furthermore, there is evidence from which the jury could believe that the apartment had never previously flooded; that the excess surface water would have flowed to the south and east of the apartment complex; and that there was mud in the drains on appellant’s property similar to the spoil bank established by appellee after appellant’s apartments were built. All this evidence, viewed in the light most favorable to appellant, is sufficient to raise fact issues on the questions of negligence, proximate cause and damages. Therefore, it was improper for the trial court to take the case from the jury.

We therefore reverse and remand this case to the trial court.

Reversed and remanded.


author: PAUL PRESSLER, Justice.

text:
    HOUSTON TRANSIT BENEFIT ASSOCIATION et al., Appellants, v. David CARRINGTON et al., Appellees.
    No. A2070.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 24, 1979.
    Leslie H. Thacker, Houston, for appellants.
    Eric H. Nelson, Barney L. McCoy, Houston, for appellees.
    Before J. CURTISS BROWN, C. J., and JUNELL and PAUL PRESSLER, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from the granting of a temporary injunction prohibiting the certification of results of an election.

The by-laws of Houston Transit Benefit Association (the Association) provide the method for the election of officers and members of the Board of Directors. The election is to be by written ballot and held the third week of October. The selected officers and directors are to take office “at the first regular scheduled Board meeting following the election of officers.” ByLaws, Houston Transit Benefit Association, art. V § 1.

The appellees submitted a slate of candidates for the election of October, 1978. One of these candidates, W. L. Rice, was later found by the Election Committee to be ineligible under Art. IV § 2 of the by-laws as he was retired. Consequently, Rice’s name was not placed on the ballot. The incumbent, C. R. Daw, was thus unopposed. There being no write-ins for the position, he was declared by the Election Committee to have been reelected.

Appellees contend that the refusal of the Election Committee to place Rice’s name on the ballot and the method of election were improper. They filed suit on November 9, 1978, seeking a temporary injunction restraining Daw and the others elected in October 1978, from assuming their respective positions. Other injunctive relief was also sought. On November 16, all of the aforementioned officers and directors were installed. These facts were before the court during the hearings on November 28 and November 29. After the hearings, the court enjoined all of the named defendants other than C. R. Daw “from certifying C. R. Daw as an elected member of the Board of Directors of the Houston Transit Benefit Association” pending final hearing on the merits. No other relief was granted in the order.

Appellants raise six points of error in their brief. Only the third point need be considered herein as it is determinative of this appeal. Therein the appellants contend it was error for the court to enjoin the certification of C. R. Daw as an elected member of the Board of Directors because Daw had already been installed prior to the hearing. We find that the evidence supports this contention.

No effect can be given to an order enjoining the doing of that which has already been done. If the act sought to be enjoined has been completed prior to the granting of a temporary injunction, and is not likely to recur, the issue has become moot and the temporary injunction should be denied. Cameron v. Saathoff, 162 Tex. 124, 345 S.W.2d 281 (1961); Krenek v. South Texas Electric Cooperative Inc., 502 S.W.2d 605 (Tex.Civ.App.—Corpus Christi 1975, no writ); Southwestern Bell Telephone Co. v. Communications Workers of America, AFL-CIO, 454 F.2d 1333 (5th Cir. 1971). The injunction issued by the court below purported to enjoin the certification of C. R. Daw as a Director, an act which had already been completed prior to the hearing, rendering the issue moot.

The temporary injunction is hereby dissolved and the cause of action is dismissed insofar as it seeks a temporary injunction.


author: JUNELL, Justice. JUNELL, Justice.

text:
    Kenyon HOUCHINS, Appellant, v. Allan SCHELTZ et al., Appellees.
    No. B2149.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 24, 1979.
    Rehearing Denied Nov. 28, 1979 With Opinion.

      Kenyon Houchins, Houchins & Tasker, Houston, for appellant.
    Lynn N. Hughes, Howard & Hughes, David C. Holland, Dabney, Garwood & Holland, Houston, for appellees.
    Before COULSON, SALAZAR and JU-NELL, JJ.
   JUNELL, Justice.

This is a summary judgment case in which appellant, plaintiff in the court below, claims that because there are unresolved fact issues the trial court erred in granting defendants’ motions for summary judgment. This dispute involves appellant’s claim under a deed given to satisfy a debt for attorney’s fees, and the effect of a judgment in a prior partition suit. The trial court’s summary judgment for defendants is affirmed in part and reversed and remanded in part.

The appellant, Kenyon Houchins, assign-ee of Regina Brelsford, bases his suit upon her claims against appellees, Michael Scheltz and Allan Scheltz. Brelsford had performed legal services for Allan Scheltz. To satisfy his obligation to pay, on March 28, 1975, he conveyed to her by general warranty deed 8% of his one-half interest in a tract of land we will call the Brittmore Road property. On November 2, 1972, Mary Ida Scheltz, the mother of Michael and Allan Scheltz, conveyed the entire tract to Michael Scheltz, trustee. On June 4, 1973, Mary Ida Scheltz died testate. By the terms of her will she left her entire estate to her sons and appointed Michael Scheltz as independent executor. Brelsford assigned to Houchins one-half of her 4% interest in the property, and Houchins then purchased from Brelsford’s trustee in bankruptcy the remainder of Brelsford’s claim against Scheltz. Houchins brought the present action in trespass to try title and, in the alternative, for declaratory relief as to the status of the title to the Brittmore Road property. Previously Brelsford had brought an action, in which Houchins intervened, for partition of this same property. In that earlier suit the First Court of Civil Appeals affirmed the trial court’s judgment denying partition, holding that Brelsford and Houchins had failed to prove joint ownership and present right to possession. Brelsford v. Scheltz, 564 S.W.2d 404 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref’d n. r. e.). That court did not determine who held title, only that Brelsford did not prove joint ownership.

In the present action, defendants moved for summary judgment on the ground that the prior partition suit is res judicata of the issue of title. Before the hearing on the motion for summary judgment plaintiff timely filed an amended petition repleading the claims in trespass to try title and for declaratory relief, and adding alternative claims against Allan Scheltz for damages for breach of the general warranty in the deed to Brelsford, and on the underlying agreement of Allan Scheltz to pay attorney’s fees. The plaintiff filed no opposition to the motion for summary judgment and defendants submitted no additional summary judgment proof after the amended petition was filed. The summary judgment states as grounds that the decision in the prior partition suit is res judicata.

Appellant claims that the trial court erred in granting summary judgment on the entire suit in the face of unresolved fact issues springing from the alternative causes of action. He does not assign as error the trial court’s summary judgment for appellees on the trespass to try title suit. That portion of the judgment awarding recovery to one party, from which no appeal is taken, is final on the appeal and all subsequent litigation. Kendrick v. Tidewater Oil Company, 387 S.W.2d 122 (Tex. Civ.App.-Tyler 1965, writ ref’d n. r. e.). The summary judgment on the trespass to try title action is, therefore, affirmed as to Michael Scheltz and Allan Scheltz.

Appellant’s alternative claims raise the issue of the effect of the finality of the trespass to try title judgment on appellant’s real property interest. Appellant pleaded an action for a declaratory judgment on the status of the title, contending on appeal that such action was not barred by appellee’s defense of res judicata. Tex.Rev.Civ.Stat.Ann. art. 7391 (Vernon 1960) states that any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title established upon the party against whom it is recovered. A party loosing under a valid judgment in a trespass to try title case is precluded thereby from asserting interest in the land in controversy through any fact which existed at the time the judgment was rendered. Toole v. Christ Church, Houston, 141 S.W.2d 720 (Tex.Civ.App.-Galveston 1940, writ ref’d). We hold, therefore, that the entire issue of title to the land has been settled by a final judgment in the trespass to try title action. That judgment was in effect a declaration that title to the land is vested in appellees and that Houchins has no interest therein. Appellant has no standing in an action for declaratory judgment because he does not meet the standing requirements of the Declaratory Judgments Act in that he has no interest in the property. Tex.Rev.Civ.Stat.Ann. art. 2524-1 (Vernon 1965). The record reveals no possible recovery by appellant on the other one-half of Brelsford’s real property interest. The sale by the trustee in bankruptcy, upon which Houchins bases his claim, conveyed only an interest in “a legal action.” That action was the pending suit of Brelsford v. Scheltz, which has been resolved. Thus, the judgment for appellees Michael and Allan Scheltz on the declaratory judgment action is affirmed. The remaining alternative claims do not involve a real property claim, thus must be considered separately to determine if summary judgment was proper on the ground of res judicata.

The doctrine of res judicata operates to bar subsequent actions involving an identical cause of action between the identical parties and those in privity with them. Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971). In Texas the rule also operates to bar litigation of all issues connected with a cause of action or defense which might have been tried in a former action as well as those which were actually tried. Abbott Laboratories, supra, citing Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963).

A judgment in a suit on one theory is conclusive as to all theories of liability that might have been alleged and defenses that might have been urged with respect to the claim; thus all grounds of recovery or defense must be urged or will be barred.. A judgment on the merits of one cause of action is not conclusive of a subsequent suit on a different cause of action except as to issues of fact actually litigated and determined therein. Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973), and cases cited therein.

In the prior partition action only issues of real property interest were addressed. In the present case the alternative claims for attorney’s fees and damages for breach of -warranty in the deed are new causes of action against Allan Scheltz, not merely additional theories of liability or grounds of recovery which would be barred by Griffin. These claims were not encompassed by the partition suit where the only issue determined was that appellant and Brelsford did not show title to the property. Thus the affirmative defense of res judicata did not operate to bar the alternative claims against appellee Allan Scheltz. The question of whether summary judgment was proper as to these alternative claims on other grounds requires separate consideration.

Tex.R.Civ.P. 166-A requires that the motion for summary judgment state the specific grounds upon which the judgment is sought. Texas courts have held that if it affirmatively appears from the pleadings, admissions, depositions and affidavits that there are no issues as to any material facts, then summary judgment remains the proper remedy even if it is to be granted upon a ground different from that specified in the motion for judgment. Phil Phillips Ford, Inc. v. St. Paul Fire and Mar. Ins. Co., 465 S.W.2d 933 (Tex.1971); In Re Estate of Price v. State National Bank of El Paso, 375 S.W.2d 900 (Tex.1964). Thus, this Court must look behind the order to deter-. mine if other grounds exist.

The burden of the movant for summary judgment is to show that there is no genuine issue as to any material fact, and that he is entitled to judgment as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). The affirmance by this court of the judgment for defendant depends on whether the summary judgment proof meets that burden. Smith v. Ortman-McCain Co., 537 S.W.2d 515 (Tex.Civ.App.-Austin 1976, writ ref’d n. r. e.). If the movant’s proof does not establish the lack of any fact issue as a matter of law, then the non-movant does not then have the burden of going forward with summary judgment proof of like quality in order to avoid summary judgment against him. Smith, supra; Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). The record reflects no summary judgment proof of appellees which addresses the issue of the claim for damages for breach of warranty of title. Regarding that issue, we are left with the plaintiff’s amended petition put into issue by defendants’ general denial. Tex.R.Civ.P. 92. Such pleadings cannot support a summary judgment on the warranty action in the face of unresolved fact issues. Swilley v. Hughes, supra.

Appellant in his amended petition brought the action for damages for breach of warranty of title only against Allan Scheltz, thus the judgment is affirmed on the warranty action as to Michael Scheltz, and is reversed and remanded as to Allan Scheltz for trial on the merits of appellant’s claim for damages for breach of warranty of title.

Appellant’s final alternative claim is against Allan Scheltz on the alleged underlying obligation of Allan Scheltz to pay attorney’s fees. The same burden of proof rests upon the movant for summary judgment as was described above in relation to the other claim. Appellees in their brief allege that the attorney’s fees claim is barred on its face by limitations, and thus summary judgment must be affirmed on that ground. This contention is without merit. When the rules of procedure require that a defense be affirmatively pleaded, if the defense is not so pleaded, even summary judgment proof establishing the defense as a matter of law will not entitle the mov-ant to judgment. DeBord v. Muller, 446 S.W.2d 299 (Tex.1969). The record shows no such affirmative defense in Allan Scheltz’s answer or in his summary judgment proof. The summary judgment proof does not address the issue of the plaintiff’s alternative claims for attorney’s fees. Thus we are again left with only the amended petition put into issue by defendant’s general denial. However, as to this issue, the pleadings alone are sufficient to support summary judgment for the defendant.

Summary judgment may be granted on grounds other than those specified in the motion for summary judgment. In Re Estate of Price, supra. When a party pleads facts which would constitute a judicial admission entitling the opponent to judgment, or creating an insuperable barrier to a right of recovery, a summary judgment on the pleadings is proper. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). The judgment on the pleadings for the defendant is proper not because of a deficiency in the other party’s pleadings, but because the facts alleged by the plaintiff establish the absence of a right of action. Swilley v. Hughes, supra.

A review of the appellant’s amended petition reveals that he has alleged an accord and satisfaction to his claim for attorney’s fees. An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim, something different from that to which he was, or considered himself, originally entitled. A satisfaction is the execution or performance of that agreement. Slaughter v. Temple Lumber Company, 307 S.W.2d 108 (Tex.Civ.App.-Houston 1957, writ ref’d n. r. e.) citing 1 C.J.S. Accord and Satisfaction § 1, p. 462. The term applies to the complete transaction and the doctrine constitutes a bar to any action on the original contract. Ensley v. Spickard, 232 S.W.2d 780 (Tex.Civ.App.-Dallas 1950, writ ref’d).

Appellant’s petition, supported by exhibits, sets out the following facts: in 1973 appellee Allan Scheltz retained attorney Brelsford to represent him, executing a power of attorney, for which he agreed to pay a reasonable fee; in 1974 Scheltz gave attorney Brelsford a written agreement to convey to her 8% of his one-half interest in the Brittmore Road property to satisfy the obligation; in 1975 Scheltz executed the general warranty deed conveying the interest promised. . These facts constitute the accord and satisfaction of claim for attorney’s fees. Appellant Houchins has no greater right to recover on the original contract as assignee of Brelsford than does Brelsford herself; thus, the claim is barred. The trial court did not err in granting summary judgment for Allan Scheltz on the alternative claim for attorney’s fees. That portion of the judgment is affirmed.

Affirmed on all grounds as to Michael Scheltz individually and as executor of the estate of Mary Ida Scheltz; affirmed as to Allan Scheltz on the actions in trespass to try title, for declaratory judgment on the status of title and on the action for attorney’s fees.

Reversed and remanded as to Allan Scheltz only on the cause of action for damages for breach of the general warranty of title in the deed from Allan Scheltz to Regina Brelsford.

ON MOTION FOR REHEARING

JUNELL, Justice.

In his motion for rehearing appellee Allan Scheltz has urged this Court to affirm the entire cause on the basis of Tex.R.Civ.P. 166-A as amended effective January 1, 1978, and the recent Texas Supreme Court opinion of The City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Appellee contends that because appellant filed no written response to appel-lee’s motion for summary judgment, he has waived those issues on appeal.

Appellant filed no written response to appellee’s motion, but he timely filed an amended petition setting forth new and distinct causes of action against appellee. Ap-pellee’s summary judgment proof that res judicata barred appellant’s action did not address the new cause of action for breach of warranty of title. The City of Houston case cited by appellee explains that the movant must still establish his entitlement to a summary judgment on the issues expressly presented to the trial court by proving all essential elements of his cause of action or defense as a matter of law. The non-movant’s failure to answer cannot supply by default the proof necessary to establish the movant’s right. The non-movant needs to have filed no answer or response to the motion to contend on appeal that the grounds presented to the trial court by the movant’s motion are insufficient as a matter of law to support the summary judgment. 589 S.W.2d at 678.

Appellee’s motion and proof addressing only the res judicata defense is not legally sufficient to prevail against appellant’s new causes of action. The trial court’s judgment attempting to dispose of the entire case on that basis cannot stand, and amended rule 166-A does not foreclose appellant’s right to appeal on that ground.

Affirmed in part and reversed and remanded in part.


author: WALLACE, Justice.

text:
    Belle C. DUNN et al., Appellants, v. Nina DAVIS et al., Appellees.
    No. 17411.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 25, 1979.
    Rehearing Denied Nov. 21, 1979.
    Foreman, Dyess, Prewett, Rosenberg & Henderson, Jesse R. Pierce, Gladys R. Goff-ney, Houston, for appellants.
    Brown, Bradshaw & Plummer, Andrew C. Brown, Leo A. Kissner & Associates, Daniel C. Pappas, Houston, for appellees.
   WALLACE, Justice.

The trial court awarded judgment for appellees in their suit for adverse possession of a five acre tract of land in Harris County to which appellants asserted they were record title holders. The jury found that ap-pellee’s predecessor in title, Louis Davis, adversely possessed the land from December 1945 to October 1956.

Appellants assign points of error of (1) no evidence, (2) insufficient evidence, (3) failure to instruct the jury regarding the dead man’s statute and, (4) failure to submit to the jury appellants’ requested definition of adverse possession. We affirm.

“Adverse possession” is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”. Tex.Rev.Civ.Stat.Ann. art. 5515.

To constitute “adverse possession” under the ten-year statute, the appropriation of the land must be of such character as to indicate unmistakeably an assertion of a claim of exclusive ownership in the property. Heard v. State, 146 Tex. 139, 204 S.W.2d 344 (1947). The proof must be clear and satisfactory. Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781 (Tex.1954). Further, inferences are not indulged in favor of a limitation claimant. Cook v. Winter, 207 S.W.2d 145 (Tex.Civ.App.—Amarillo 1947, writ ref’d n. r. e.).

Applying these tests, we will consider the “no evidence” and “insufficient evidence” points together.

In reviewing the factual sufficiency of the evidence we must consider all of the evidence in the record before us. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Rebecca Alford was called as a witness by the appellees and testified as follows:

Her mother and father built a house on the five acre tract adjoining the Davis tract in 1932 or 1933. This was shortly after her marriage. She visited her mother “once a week or so” and “sometimes every week” until her father died in 1950. Her mother moved from the house for three years but her sister lived in the house during that period. She visited her sister “about once every two or three weeks”. These visits continued through the period of adverse possession found by the jury.
Louis Davis died in 1966 and was too sick to haul trash or to garden for about two years prior to his death. From 1932 or 1933 until two years before his death in 1966, Louis Davis kept the land fenced, he raised milo or similar grain plus vegetables such as okra and tomatoes and dumped trash such as tree limbs, etc. on the land. The fences, grain and trash were visible from the road at all times for each year during the forties and fifties.

Elston Alford testified that he was familiar with the property starting in 1931 or 1932. In the early fifties Louis Davis gave him permission to go through the barbed wire gap which provided entrance onto the Davis property so that he could get to the adjoining Simpson tract and dump trash. He was instructed by Davis to close the gap after he went through it.

Wallace Simpson, Jr. was the son of the owner of the adjoining five acre tract. He testified that he helped his father fence their land in 1928 or 1929 and that Louis Davis fenced his land at the same time. Davis farmed the tract until the late thirties and then he started using it for dumping of trash and scrap lumber.

From the evidence the jury could have found that Davis fenced the land in 1928 or 1929 and maintained the fences through the period of adverse possession found by the jury; that Davis farmed the land each year until 1963 or 1964 according to Rebecca Alford who said that she observed the land at least each month during the entire period; and that Davis used the land as a place to dispose of dry trash on a regular basis through the entire period.

The testimony of Mrs. Alford and Mr. Simpson was contradicted by appellants’ witnesses, but the jury apparently chose not to believe the contradictory testimony. This was within the province of the jury. Rule 226a T.R.C.P.

We find that fencing the 5 acre tract, farming at least a part of it each year, and using a part of it to dump trash on a regular basis was sufficient use to constitute an actual and visible appropriation of the land inconsistent with and hostile to the claim of another.

Appellants complain of the failure of the trial court to give the jury a limiting instruction regarding the dead man’s statute, Art. 3716, Tex.Rev.Civ.Stat.Ann., in relation to the testimony of Nina Davis, widow of Louis Davis, as it affected the interests of the remaining appellees who were children and heirs of Louis Davis. The parties agree that Nina Davis was claiming an interest in one-half of the land as her community interest,-not as an heir of her husband, and the statute did not apply to her interest. Since her testimony was admissible as to her interest, it properly went to the jury. It was error for the court not to give the requested limiting instruction. Spencer v. Schell, 107 Tex. 44, 173 S.W. 867 (1915), Harris v. Warlick, 42 S.W. 356 (Tex. Civ.App.1897, no writ). The jury properly heard the evidence in relation to Nina Davis’ claim, so the only effect of the limiting instruction would be to preserve appellant’s “sufficiency of the evidence” points as to the interest of the heirs. If there was sufficient evidence from other witnesses to sustain the judgment as to the heirs the error would be harmless. As set out above, we find that the evidence from Mr. and Mrs. Alford and Mr. Simpson was sufficient.

Appellants also complain that the testimony of Alma May Davis Smith and Louis Lester Davis was in violation of the dead man’s statute and should have not have been admitted. Their testimony was not concerning facts within their independent knowledge disassociated from acts of Louis Davis. Adams v. Berry, 560 S.W.2d 935 (Tex.1978). However, this testimony was also admitted as to the claims of Nina Davis and the appellant was entitled to only a limiting instruction to that effect. The jury properly heard the evidence as it pertained to Nina Davis’ claim, so we again have a situation where the court erred in not giving the limiting instruction, but the effect of the instruction would have been only to preserve appellant’s “sufficiency of the evidence” point. In both instances referred to above, in reviewing the evidence, the testimony of Nina Davis, Alma May Davis Smith or Louis Lester Davis will not be considered as it relates to the claim of the heirs. We find the evidence from witnesses who were not heirs of Louis Davis to be sufficient to sustain the verdict, so the error of the trial court was harmless.

Appellants also complain that the trial court erred in not submitting their requested definition of “adverse possession”. The court was required to submit only one proper definition. The definition submitted was “the term ‘adversé possession’ as used in the following special issue means an actual, visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another”. This was a proper definition. Art. 5518 Tex.Rev.Civ.Stat. Ann., Brown v. Fisher, 193 S.W. 357 (Tex.Civ.App.— Beaumont 1917, writ ref’d).

The judgment of the trial court is affirmed.

COLEMAN, C. J., and DOYLE, J., also sitting.


author: KLINGEMAN, Justice.

text:
    FOOD CITY, INC., Appellant, v. FLEMING COMPANIES, INC., Appellee.
    No. 16125.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 31, 1979.

      Walter W. Church, Kampmann, Church, Burns & Clark, San Antonio, for appellant.
    Richard B. Moore, Douglas W. Becker, Gresham, Davis, Gregory, Worthy & Moore, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit by Food City, Inc. (Food City) against Fleming Companies, Inc. (Fleming) to require Fleming to deliver to Food City certain equipment and fixtures, or, alternatively, for damages if such fixtures and equipment had been sold to a third party. The case involves a dispute between a first lien holder and a subordinate lien holder over title to equipment and fixtures in Garrett’s. United Super (Gar-retts), a grocery store located in San Antonio. Fleming was the owner of a first lien on all of the fixtures, equipment, inventory, accounts receivable and contract rights of Garrett’s. Food City held a second lien solely on the fixtures and equipment of the same grocery store. Fleming took steps to repossess and dispose of Fleming’s collateral and these proceedings form the crux of this litigation.

The court after a non-jury trial entered judgment that Food City take nothing against Fleming.

Food City was the original owner of the store in question and wished to sell the store to its employees, the Garretts. In the spring of 1976, the Garretts approached Fleming to secure financing. After a study of the store’s potential in the grocery market, Fleming determined that it would assume the lease of the premises, sublet the store to the Garretts, and advance to the Garretts $370,000 with which it could purchase equipment, fixtures, and grocery inventory from Food City. This advance was secured by a security agreement in the equipment and fixtures, inventory, contract rights and accounts of the store, and Fleming filed appropriate financing statements to perfect its security interest with the Secretary of State and the County Clerk of Bexar County.

At some point during the negotiations, Food City indicated that it wanted $50,000 more than the amount that Fleming was willing to advance to the Garretts to accomplish the transaction. After Fleming had loaned $370,000 to the Garretts and had procured security documentation on that loan and all future advances, Food City was released on the store lease. Fleming thereafter subleased the premises to the Gar-retts. Sometime after this occurred the Garretts executed a note for the $50,000, payable to Food City, along with a security agreement granting a lien to Food City on the fixtures in the store. The Garretts also executed another note for $80,000 to Food City which was unknown to Fleming and which was unsecured. At trial each party introduced conflicting evidence as to whether or not it was known by Fleming that the $50,000 note from Garrett’s to Food City would be secured by a subordinate lien on equipment and fixtures in the store. Representatives of Fleming testified that they knew nothing about the second lien of Food City and insisted that they had a security interest in the collateral free and clear of any other security interest as required by Fleming’s financing documents.

In sworn answers to interrogatories Food City admitted that it had not sent copies of the security agreements, notes or other pertinent documents to Fleming.

In late October or November, 1976, the Garretts became delinquent on their open account to Fleming for food purchases. Deeming itself insecure as to the collectability of future advances and the underlying note obligation, Fleming sent a demand to the Garretts on November 16, 1976, instructing them to turn over all secured collateral for foreclosure. The following day, Fleming and the Garretts reached an agreement whereby the Garretts agreed to the foreclosure, waived notice of sale, and agreed to a foreclosure sale price of $248,-232 to be credited against the amount owed to Fleming. The Garretts, after consulting their attorney, signed an agreement to this effect.

Prior to entering into this agreement, Fleming searched county and state records to determine whether any other creditors had filed financing statements indexed in the name of the Garretts, as debtors, and none were found. Fleming also claimed at this time that it had received no notices from any parties claiming to have a security interest in the collateral.

The total debt owing to Fleming on the date of the foreclosure was almost $430,000.

Fleming bid $248,232 for the collateral on the date of the foreclosure, November 17, 1976, based on fair market value of the inventory of $148,232, and an estimated fair market value for the fixtures of $100,000. After deducting expenses of sale, the net worth of the collateral was $187,907.63.

On December 1, 1976, Food City sent a letter to the Garretts and Fleming stating that the Garretts were in default under their security agreement and requesting that the equipment be set aside for sale at the store location (3903 Eisenhauer Road). Food City’s representative and their attorney met on the parking lot at the store location on December 11,1976, and purported to buy the equipment and fixtures located in the store by bidding the outstanding balance of the $50,000 note.

Food City filed suit against Fleming on December 14, 1976, demanding the possession of the equipment and fixtures at the store or, in the alternative, the sum of $56,752. Food City did not, either before or after filing this suit, attempt to redeem collateral from Fleming by tendering to Fleming the full amount of its secured debt and expenses allowable under Fleming’s security agreement.

Food City asserts forty points of error which, for this opinion, will be discussed under the following general categories: (1) Merger; (2) Notice, Good Faith and Commercial Reasonableness; and (3) Damages.

The trial court made extensive findings of fact and conclusions of law. Many of those are attacked by Food City. Only those deemed pertinent to this opinion will be summarized and discussed under the general categories listed above.

MERGER

Food City’s claim for relief is primarily predicated upon its contention that Fleming, by taking a conveyance of the fixtures and equipment from the Garretts and thereafter releasing the Garretts from any further liability for a deficiency, effected a merger of its first lien into the fee title ownership and thereby elevated Food City’s second lien to first lien status. In support of this contention, Food City asserts that it is clear from the ownership laws of the State of Texas. that when an ownership interest and a lien interest merge the ownership interest, being the primary and superior interest, will take over the other interest and leave an ownership interest only.

It is true that in some instances where the title to land and title to a mortgage lien become vested in the same person the greater and lesser estate may become merged and the lien extinguished. However, there are exceptions to this rule. See R. B. Spencer & Co. v. May, 78 S.W.2d 665 (Tex.Civ.App.—Waco 1935, writ ref’d). The applicable rule is set forth in North Texas Building & Loan Ass'n v. Overton, 126 Tex. 104, 86 S.W.2d 738, 740 (1935), as follows:

Whenever, by reason of the existence of a junior incumbrance, it is to the interest of the mortgagee to keep the estates separate, they will not be regarded as merged. It has been many times stated that the intention of the mortgagee is the determining factor. In this state that rule, in its literal meaning, is inaccurate, for it is presumed, as a matter of law, that he intended to keep the estates separate, if that course is essential to maintain his priority over a junior incumbrancer. (Citations omitted.) It is immaterial, as between the senior and junior lienholders, whether the mortgagee retains the note and mortgage in his possession or surrenders them to the mortgagor. It is likewise immaterial whether or not the deed of conveyance from the mortgagor to the mortgagee recites, as did the one in the instant case, that the cancellation of the note and mortgage was a part of the consideration for the conveyance.
It is often true, as no doubt it was in the instant case, that it is decidedly to the advantage of the mortgagor and mortgagee to avoid the necessity of a foreclosure suit by a conveyance of the premises to the mortgagee. A rule penalizing them for so doing would be contrary to our policy that litigation is not to be encouraged. The junior lienholder suffers no injury thereby, but is in the same position as if there had been a foreclosure without his having been made a party. His equity of redemption is not, affected, neither is his lien thereby elevated to a first lien.

Fleming contends that the doctrine of merger is of no assistance to Food City either under the provisions of the Texas Business & Commerce Code or the case law of this State. It asserts that it has fully complied with both the provisions of Sections 9.504 and 9.505 of the Texas Business & Commerce Code (hereinafter referred to by section number only) with regard to disposition of collateral after default, and the trial court so found. Fleming maintains, that irrespective of whether one considers the disposition of the collateral as a foreclosure under Section 9.504 or an acceptance of collateral as a discharge of obligation under Section 9.505, the results are the same and that Food City’s subordinate interest was not elevated to a first lien but rather was extinguished.

Section 9.504(d) provides that “When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto.” Tex. Bus. & Com.Code Ann. § 9.504(d) (Vernon Supp.1978-79).

The doctrine of merger does not support Food City’s claim for relief.

GOOD FAITH, COMMERCIAL REASONABLENESS AND NOTICE

The trial court made a number of, findings of fact with regard to notice, good faith and commercial reasonableness, which may be summarized as follows:

(a) The Garretts did not inform Fleming, either orally or in writing, that the Garretts had granted Food City a security interest in the store equipment.
(b) Food City did not inform Fleming, either orally or in writing, that Food City had been granted a security interest in the store equipment until December 1, 1976.
(c) Fleming did not receive notice of a claim or interest in the store equipment from Food City until December 1, 1976.
(d) Food City failed to file a financing statement covering the equipment and fixtures at the store with either the Secretary of State or the Bexar County Clerk on or prior to November 17, 1976.
(e) Fleming’s security agreement expressly provided that the Garretts could not permit any other liens or encumbrances to attach to the collateral without the written consent of Fleming and Fleming never gave any such consent.
(f) Fleming's financing documentation was duly executed by Garretts, as debtors, and Fleming’s security interest was duly perfected on June 15, 1976, by the filing of financing statements with the Secretary of State of Texas and the County Clerk of Bexar County, Texas.
(g) Fleming searched its files to determine whether or not any notices had been received from secured parties claiming an interest in the equipment and fixtures at the store. They found that none had been received.
(h) Fleming was not aware that the Garretts gave Food City a second lien on the equipment at the store to secure a $50,000 note.
(i) After foreclosure Fleming attempted to sell the store with its equipment, fixtures and inventory in place to other grocery retailers in the South Texas area in an effort to get the highest possible price for the collateral.
O') Fleming placed additional groceries in the store, advertised the inventory in local newspapers and employed store personnel in order to sell the inventory for the highest possible price.
(k) Fleming’s sales of the store inventory, equipment and fixtures were in conformity with reasonable commercial practices among dealers in this type of property and the prices received were equal to or greater than the current fair market value of the inventory, equipment and fixtures as of the times of the sales and as of November 17, 1976.

Under the provisions of Section 9.504, Fleming had the right, after default, to sell, lease, or otherwise dispose of any or all of the collateral. In addition, under Section 9.505 Fleming had the right to retain the collateral in satisfaction of its debts. Section 9.501(a) provides that the rights of a secured party in possession of collateral are cumulative. There is no necessity for the secured party to elect between remedies; it may take any permitted action or combinations of actions. 51 Tex. Jur.2d § 288, at 577 (1963). Pruske v. National Bank of Commerce of San Antonio, 533 S.W.2d 931 (Tex.Civ.App.—San Antonio 1976, no writ).

Under Section 9.505 the secured party must send notice in writing to debtor when he proposes to retain collateral. However, a debtor’s right to notice and to object may be waived if, after default, he has signed a statement renouncing or modifying his rights. In a transaction secured by consumer goods no other notice need be sent. In other transactions, notice must also be sent to any other secured party from whom the secured party has received a written notice of a claim of interest in the same collateral before the notice was sent to the debtor and before the debtor renounced his rights thereunder. It is undisputed that Food City did not timely file any financing statement with regard to the Garretts’ indebtedness with either the Be-xar County Clerk or the Secretary of State. It is also undisputed that Food City did not send any written notice to Fleming that it was claiming an interest in the store equipment until after the time the debtor renounced and released his interest in the property and after the time that Fleming had taken possession of the collateral under the provisions of Sections 9.504 and 9.505.

Under Texas law, whether disposition of collateral is commercially reasonable is a question of fact. Pruske v. National Bank of Commerce of San Antonio, supra. Christian v. First National Bank of Weatherford, 531 S.W.2d 832, 838 (Tex.Civ.App.— Fort Worth 1975, writ ref’d n. r. e.). Evi dence in the record before us reveals that Fleming made a bona fide effort to ascertain whether or not there were any secured creditors entitled to notification that Fleming planned to hold a foreclosure sale of the collateral and determined that there were no such creditors entitled to notice; and, that, after receiving the debtor’s waiver of interest in the collateral, Fleming made a bona fide effort to obtain the highest possible price for the collateral. The trial court’s finding that Fleming’s disposition of the property was commercially reasonable is amply supported by the evidence. The trial court correctly concluded that Fleming’s disposition of the collateral was made in good faith and was in all respects commercially reasonable.

The Code places the burden of requesting notice upon the subordinate secured party. This request must occur before the debtor renounces his own rights to notification. Coogan, The New UCC Article 9, 86 Harv. L.Rev. 477-519 (1973). See Funk, The Proposed Revision of Article 9 of the Uniform Commercial Code, 27 The Business Lawyer 321 (1971); Program by The Committee on the Uniform Commercial Code of the ABA Section of Corporation, Banking & Business Law, Impact of 1972 Revisions on Secured Financing Transactions Under UCC Article 9, 33 The Business Lawyer 2491 (1978).

Food City makes no contention that it timely filed its security interest. It concedes that it did not timely send Fleming a written notice of any claim or interest in the collateral, and that it did not send Fleming a written request for notice of any disposal of the collateral. Food City’s basic contention perdnent to notice is that there were certain documents in Fleming’s file which should have put them on notice of its claim. Two of these documents were copies of insurance binders purchased by the Gar-retts to insure the grocery store reflecting both Fleming and Food City as “loss payees” for the period predating the transfer of title from Food City to the Garretts. A third document, a computerized “accounts payable summary”, contains a notation “notes payable equipment . $50,000” with no particular reference to Food City or the existence of any security interest of Food City on any equipment. A fourth document is a letter from Fleming’s San Antonio manager recommending that Fleming finance the Garretts’ purchase of the property. This letter, however, makes no reference to any lien being taken by Food City as part of the transaction. The fifth document, upon which Food City chiefly relies, is a bill of sale given by Food City to the Garretts and found in Fleming’s file on December 1, 1976, after the foreclosure Rad taken place. This document inconspicuously refers to a second lien by Food City in small print, and contains no reference to what collateral was secured by it. The trial court in its findings of fact indicates that none of such documents would place Fleming on notice of Food City’s second lien.

Food City could have protected itself by (1) duly filing a financing statement in the offices of the Secretary of State or of the County Clerk of Bexar County; (2) timely sending a notice to Fleming specifically asserting a subordinate interest in the collateral and requesting notification prior to any sale or disposition of the property. Food City did neither.

The trial court correctly held that Fleming timely gave notice of its intended disposition of the collateral to all persons entitled to such notice in accordance with the provisions of the Texas Business & Commerce Code.

DAMAGES

Section 9.507(a) provides that if the collateral has been disposed of Without compliance with the provisions of this subchapter the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to disposition has the right to recover for any loss sustained as a result of the wrongful disposition. Although we have already held that there was not a wrongful disposition, for the purpose of discussing the question of damages, we will assume such a wrongful disposition.

The trial court found that the sale of the collateral was commercially reasonable and we have upheld this finding. There is authority to the effect that a trier of the fact having found that a sale is commercially reasonable is entitled to infer that the total amount received at the sale was evidence of the fair market value of the property sold. United States v. Whitehead Plastics, 501 F.2d 692 (5th Cir. 1974) cert. denied, 421 U.S. 912, 95 S.Ct. 1566, 43 L.Ed.2d 7. Here we need not rely on such inference. The trial court found that the total amount owed by the Garretts to Fleming on November 17, 1976, on its secured first lien was $429,148.77; that the inventory was sold for a gross amount of $118,-752.78; that reasonable expenses of sale were $21,843.15, leaving a net realization from inventory of $96,909.63; that the unsatisfied amount of Fleming’s debt after giving credit for the sale of inventory was $332,239.14; that the fair market value of fixtures and equipment was $90,100; that Fleming realized $75,995 from sale of part of the equipment and fixtures with the fair market value of the remaining equipment being $15,000; that the unsatisfied amount of Fleming’s claim against the equipment and fixtures after giving credit for the fair market value of all the collateral foreclosed upon was $242,139.14; and, that Food City did not suffer any loss caused by Fleming’s action in disposing of the collateral.

Representatives of both parties and one independent witness testified as to their opinions on the value of the store fixtures, equipment and inventory. After a review of such testimony, we have concluded that there is ample evidence to support the trial court’s findings that the fair market value of the collateral was considerably less than the amount of Fleming’s first lien indebtedness and that Fleming suffered a substantial loss in the entire transaction. The evidence fails to show that Food City sustained any loss or damages by reason of failure to receive proper notice of the sale of the property. Under Section 9.507(a), the recovery of damages is measured by the economic loss sustained by reason of a failure to comply with the provisions of such sub-chapter. There is no proof that Food City suffered any such loss.

The trial court also concluded that Food City waived any right it had to redeem the collateral, and that Food City was equitably estopped, by reason of its own actions, to complain of Fleming’s failure to send notice to Food City of the disposition of collateral. In view of our previous holding, we deem it unnecessary to discuss or pass on the question of waiver or estoppel.

The trial court’s material findings of fact are sufficiently supported by the evidence. The trial court correctly held that (1) Fleming was not aware of Food City’s subordinate interest in the equipment and fixtures; (2) Food City did not give the type of written notice to Fleming asserting its subordinate claim against the equipment and fixtures required by the Texas Business and Commerce Code; (3) Food City suffered no loss by the disposition of the property because the amount of Fleming’s first lien against the inventory, equipment and fixtures was greater than the value of the collateral; (4) the interest of Fleming in the collateral did not become subordinate to the claim of Food City under the doctrine of merger; and (5) Fleming acted in good faith and in a commercially reasonable manner in proceeding as it did.

We have considered all of Food City’s points of error and all are overruled. The judgment of the trial court is affirmed.

      . The trial court made certain findings of fact which are pertinent to the question of merger, some of which findings also pertain to notice, commercial reasonableness, and good, faith. Such findings of fact may be summarized as follows:
      (1)On November 16, 1976, Fleming gave written notice to the Garretts that they were in default under the terms of Fleming’s security agreements and that the entire balance due was being accelerated and asked that Fleming be given possession of the collateral.
      (2) On November 16, 1976, Fleming sent a notice to the Garretts proposing that if the Garretts would waive notice of sale, let Fleming foreclose its security interest in the collateral and retain the same after sale, then Fleming would release the Garretts from further liability on their debt to Fleming.
      (3) The total amount owed by the Garretts to Fleming on November 17, 1976, and secured by security interests in equipment, fixtures, inventory, accounts, and contract rights in the store was $429,148.77.
      (4) On November 17, 1976, the Garretts surrendered the collateral to Fleming, acknowledged the validity of the secured debts owed to Fleming, waived notice prerequisite to the holding of a foreclosure sale and agreed that Fleming’s bid of $248,232°against the secured debt for the collateral was fair and constituted a commercially reasonable sale.
      (5) On November 17, 1976, Fleming foreclosed the security interest, purchased the collateral having bid $248,232 against the secured debt and agreed to release the Garretts from any further liability in exchange for the Garretts’ agreement to allow Fleming to retain the collateral in satisfaction of all obligations: Fleming acted in good faith in taking such actions.

      . The assumption of lack of proper notice or of any failure to comply with the applicable prov-sions of the Code is made for the purpose of discussing the question of damages only.


text:
    LAWYERS SURETY CORPORATION et al., Appellant, v. J. Richard HALL, Successor Representative, Appellee.
    No. B2193.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1979.
    Rehearing Denied Nov. 21, 1979.
    Don Karotkin, Funderburk & Funder-burk, Houston, for appellant.
    J. Richard Hall, Houston, for appellee.
    Before COULSON, JUNELL and SALAZAR, JJ.
   COULSON, Justice.

This is an appeal from an order of the probate court surcharging Lawyers Surety Corporation (Lawyers), the surety on the bond of the original guardian, for fees and expenses incurred in connection with the assumption of duties by the successor guardian, J. Richard Hall (Hall). The issue is whether Tex.Rev.Civ.Stat.Ann. art. 5528 applies. We hold that it does. Thus, we reverse the trial court’s decision and render judgment that Hall take nothing.

Bart Denton was appointed guardian of his minor sons, Ramon Bart Denton and William Buck Denton, and on December 19, 1961, filed his $8,000.00 guardian’s bond with Lawyers as the commercial surety. On July 14, 1973, Bart Denton died. Hall was appointed successor guardian on November 20, 1978. Hall’s “Motion to Surcharge Surety For Fees of Successor Representative” was filed on February 2, 1979. The timely answer filed by Lawyers pled the statute of limitations, Tex.Rev.Civ.Stat. Ann. art. 5528 (Vernon 1958), which states: “[a]ll suits on the bond of any executor, administrator or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal or discharge of such executor, administrator or guardian, and not thereafter.”

The death of a guardian commences the running of the limitation period for suits on his bond. Marlow v. Lacy, 68 Tex. 154, 2 S.W. 52 (1886). Applying art. 5528 to this case, the limitation period began running on July 14, 1973, the date of the original guardian’s death. Thus the present action is barred by limitations.

Reversed and rendered.


text:
    GENERAL ELEVATOR CORPORATION, Appellant, v. CHAMPION PAPERS-Division of Champion International Corporation and Champion International Corporation, Appellees.
    No. A2158.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1979.
    Rehearing Denied Nov. 28, 1979.
    David J. Beck, Christopher Hicks, Fulbright & Jaworski, Houston, for appellant.
    Frank M. Bean, Bean & Manning, Houston, for appellees.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from a summary judgment in a workers’ compensation and wrongful death case in which General Elevator’s (appellant) cross action for contribution against the Champion group (appellee) was denied under Tex.Rev.Civ.Stat.Ann. art. 8306.

On December 22, 1975, Keith Joseph Broussard was fatally injured in an elevator accident while acting in the course of his employment for Champion Papers. Yolanda Broussard, as surviving spouse and as next friend of their son, Arthur John Broussard, brought suit against appellees who were both the owners and operators of the elevator. Also named as defendants in' the suit were appellant, who serviced the elevator, and Otis Elevator Company, who manufactured, marketed, and installed the elevator. Plaintiffs alleged that there was both negligence and gross negligence on the part of all of the defendants. Otis was granted a summary judgment and is no longer a part of this cause.

In addition, plaintiffs sought workers’ compensation benefits from Liberty Mutual Insurance Company (Liberty Mutual), the workers’ compensation carrier for appellees. Liberty Mutual paid plaintiff $10,230.00 in medical and death benefits and then filed a petition of intervention claiming that it had a subrogation claim for the amount of the compensation benefits it had paid.

Appellant entered into a settlement agreement with plaintiffs wherein appellant paid plaintiffs $500,000.00. Plaintiffs have thus settled all of their claims and are no longer in this case. Appellant then filed its cross action against appellees seeking contribution or indemnity, claiming the negligence of appellee to be the proximate or sole proximate cause of the decedent’s injuries and death. Appellees filed a motion for summary judgment claiming that the exclusive remedies section of the Workers Compensation statute, Tex.Rev.Civ.Stat. Ann. art. 8306 §§ 3 and 3a, insulated appel-lees from any liability to appellant. The trial court upheld appellees’ motion and entered a take nothing judgment against appellant on its cross action.

Appellant’s single point of error is that the trial court erred in granting the summary judgment. The point of error is based on two contentions. The first is that contribution is not barred by the Workers’ Compensation statute. The second is that if the statute does constitute a bar, it is unconstitutional under Article 1 Section 13 of the Texas Constitution.

In support of its first contention, appellant alleges that Article 8306 Section 3 is in conflict with the Texas Comparative Negligence Act, Tex.Rev.Civ.Stat.Ann. art. 2212a, and that the latter either repeals or takes precedence over the former. We disagree with the conclusions reached by appellant. There is no language in the Comparative Negligence statute which expressly repeals Article 8306 Section 3. Therefore, if such statute is repealed it must be by implication. Repeal by implication is not favored. Lorenzo Textile Mills, Inc. v. Bullock, 566 S.W.2d 107 (Tex.Civ.App.-Austin 1978, no writ); Conley v. Daughters of the Republic, 106 Tex. 80, 156 S.W. 197, 201 (1913). Lorenzo Textile Mills v. Bullock, supra states, “The basic rules of construction where implied repeal is the problem were stated in 1914 by the Supreme Court in Cole v. State, 106 Tex. 472, 170 S.W. 1036, 1037 (1914):

‘Though they [the two statutes] may seem to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them. If the later statute reasonably admits of a construction which will allow effect to the older law and still leave an ample field for its own operation, a total repugnance cannot be said to exist, and therefore an implied repeal does not result, since in such case both may stand and perform a distinct office. Especially will this construction be adopted where the older law is particular and expressed in negative terms, and the later statute is general in its nature. In such instances that to which the older law distinctly applied its negative provisions will be regarded as excepted from the operation of the more general statute. These are but the familiar rules of construction to be applied where the implied repeal of a law is involved.’ ”

These principals of construction have been acknowledged and followed in Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (1929); Flowers v. Pecos River R. Co., 138 Tex. 18, 156 S.W.2d 260, 263 (1941); Miller v. Calvert, 418 S.W.2d 869, 872 (Tex.Civ.App.—Austin 1967, no writ).

In this case Article 8306 Section 3 is the earlier law and the portion of its language said to conflict with Article 2212a is particular and expressed in negative terms. Article 2212a was later enacted and is general in nature. Consequently “[i]n such instances the matters to which the earlier law distinctly applies its negative provisions will be regarded as excepted from operation of the later more general statute [Article 2212a].” Lorenzo Textile Mills, Inc. v. Bullock, supra.

The second basis for this first contention of the appellant (that the workers’ compensation statute does not act as a bar to contribution) is that Article 8306 Section 5 permits contribution to a third party from a grossly negligent employer. Concerning a fatal injury, Article 8306 Section 5 provides:

“Nothing in this law shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his or her body, or such of them as there may be of any deceased employee whose death is occasioned by homicide from the willful act or omission or gross negligence of any person, firm or corporation from the employer of such employee at the time of the injury causing the death of the latter. . .”

Based on the common law rule that no right of contribution exists against a party unless that party would be directly liable to the plaintiff, appellant contends it should be entitled to contribution because the survivors of the decedent would be entitled to recovery from the employer/appellee under Article 8306 Section 5. We find this contention untenable for several reasons. First, the appellant cannot use this sort of deductive reasoning to reach a result explicitly prohibited by Article 8306 Section 3 which states:

If an action for damages on account of injury to or death of an employee of a subscriber is brought by such employee, or by the representative or beneficiaries of such deceased employee, and if such action results in a judgment against such other person, or results in a settlement by such other person, the subscriber, his agent, servant or employee, shall have no liability to reimburse or hold such other person harmless on such judgment or settlement, nor shall the subscriber, his agent, servant or employee, have any tort or contract liability for damages to such other person because of such judgment or settlement, in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death, (emphasis added)

Second, a recovery under Article 8306 Section 5 is limited by its terms to certain individuals and the appellant herein is not included. Also an appellant cannot use this statute in conjunction with a general common law rule to side step the expressed limitations of the statute. Third, Article 8306 Section 5 permits the above listed parties to sue the employer itself only for exemplary damages when the employer caused injury or death by its willful act or omission or gross negligence. Appellant is seeking contribution for compensatory damages not exemplary damages. Article 8306 Section 5 cannot be used by the appellant for that purpose. For these reasons, we hold that Article 8306 Section 3 does bar appellants’ cross action for contribution.

Appellant’s second contention under his single point of error is that if Article 8306 Section 3 acts as a bar to contribution then it violates Article 1 Section 13 of the Texas Constitution which provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” Although appellants’ contentions have some appeal, this matter has already been decided in Grove Manufacturing Co. v. Cardinal Construction Co. et al., 534 S.W.2d 153 (Tex.Civ.App.-Houston [14th] 1976, writ ref’d n. r. e.). Neither the factual distinctions between Grove and this case nor the equitable arguments advanced by the appellants persuaded us to vary from our holding in Grove which we hereby reaffirm.

The judgment of the trial court is affirmed.


author: MILLER, Justice.

text:
    David Bartine Timothy MYRICK, III et al., Appellants, v. MOODY NATIONAL BANK OF GALVESTON, Trustee et al., Appellees.
    No. A2168.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1979.
    Rehearing Denied Nov. 21, 1979.
    William N. Blanton, III, Butler, Binion, Rice, Cook & Knapp, Houston, for appellants.

      Kirk Brush, Burks & Brush, Houston, Griffith D. Lambdin, Lambdin, Schwab & Coughlin, Galveston, for appellees.
    Before J. CURTISS BROWN, C. J., and MILLER and COULSON, JJ.
   MILLER, Justice.

This is the latest chapter in the continuing saga of Myrick v. Myrick. The current suit concerns the legal question of garnisha-bility of income from two spendthrift trusts of which Defendant David B. T. Myrick, Jr. is income beneficiary and Defendant Moody National Bank is trustee. A declaratory judgment action was brought by Myrick’s former wife, individually, and for her minor children. The court below held that the proceeds of the trusts were garnishable for child support obligations of Myrick, but were not garnishable to fund his educational trust obligation. We affirm in part and reverse and remand in part.

The facts of the case are somewhat tortuous. On June 7, 1968, Myrick and his wife, Florence Karl Myrick (now Cappelletti), were divorced and an agreed judgment was entered in Domestic Relations Court No. Three, Harris County, Texas. This judgment, among other things, provided that Myrick pay his wife $1,500 per month as child support, and that he set up a trust for the use and benefit of the minors, primarily for their college education but with discretion in the trustee to disburse funds for their benefit in the event of an emergency. The total corpus of the trust was to be $50,000, payable by Myrick in three separate installments — $10,000 on or before five years from the date of the judgment; $15,-000 on or before ten years from said date; and $25,000 on or before fifteen years from said date. The judgment further provides that Myrick pledge his disbursements from the income of Moody Trusts 19 and 25, Moody National Bank of Galveston, for these payments in the event payments are not made by him on or before their due dates. If the payments have not been so made, the agreed judgment provides that all Myrick’s disbursements from Moody Trusts 19 and 25 be paid by the Bank into the educational trust for the children until the obligation is completely discharged. Myrick has not funded the educational trust. This agreed judgment is a final judgment.

Subsequent to this judgment, appellants sued Myrick for failure to meet his child support and educational trust obligations. Although he answered, Myrick did not appear at the trial and appellants obtained judgment in the 133rd Judicial District Court of Harris County, Texas. This judgment awarded appellants a personal judgment against Myrick for past due child support, and for the amount of the first installment of the educational trust plus interest thereon; accelerated the payments due the educational trust in the future; awarded attorney’s fees for obtaining child support and for obtaining the educational trust portion of the judgment; declared the educational trust a valid trust, without the necessity for further trust indenture; found that Myrick had made a valid pledge of his disbursements from income of Moody Trusts 19 and 25; and ordered that all such payments from the Moody Trust be paid into the registry of the court for the use and benefit of the educational trust. This judgment was not appealed and is now final.

Subsequent and ancillary 'to this judgment, appellants instituted garnishment proceedings against the trustee, Moody National Bank, as the sole defendant. The Bank answered that the trusts were spendthrift trusts not amenable to garnishment, and attached copies of the trust instruments to its answer. The case was tried in 122nd Judicial District Court of Galveston County, Texas, which awarded summary judgment to appellants and ordered the Moody National Bank to pay over the funds that it then held for the account of Myrick as follows: $14,314.26 plus interest into the Registry of the 133rd Judicial District Court; $3,266.91 to the appellants’ attorney; and $4,815.63, the remainder, to Appellant Cappelletti for child support. This judgment was not appealed and is likewise now final.

Subsequent to the entry of judgment in the above described garnishment proceedings, appellants again garnished the trustee bank for the income which had accrued in the interim to Myrick from Moody Trusts 19 and 25. Myrick intervened, and a separate declaratory judgment action was brought naming both him and the Bank as defendants and seeking to adjudicate in one action the entitlement, if any, of appellants to Myrick’s disbursements from the Moody Trusts. The garnishment action was subsequently consolidated into the declaratory judgment cause.

Myrick did not contest the availability of the income from the Moody Trust to satisfy his child support obligation, but contended that the trust income is immune from garnishment to fund the educational trusts on the basis of the “spendthrift trust” doctrine.

Both sides moved for summary judgment, with Myrick asking that the $17,581.17, previously paid to the educational trust and to the attorneys for related fees, be credited toward the child support portion of the judgment.

The court found that Myrick’s interest in the Moody Trust could be reached for the child support obligations and for attorney’s fees for obtaining such relief, but that his interest could not be garnished to fund the educational trusts. It denied Myrick’s motion to credit previous payments to the educational trust and the attorneys to future child support obligations.

From this order appellants appeal, assigning as their sole point of error that the “trial court erred in granting Myrick’s motion for summary judgment.” In support of this point, appellants argue that the doctrine of res judicata (collateral estoppel) prevents either Myrick or the Bank from litigating the garnishability of the proceeds of the spendthrift trusts. We concur.

The doctrine of res judicata has been set forth as follows by our Supreme Court in Hammonds v. Holmes, 559 S.W.2d 345, 346 (Tex.1977):

“[A] question of fact or law, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris, is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a different cause of action.” State of Oklahoma v. State of Texas, 256 U.S. 70, 86, 41 S.Ct. 420, 422, 65 L.Ed. 831 (1920).

Under this rule, it is patent that the Moody Bank cannot relitigate the issue of garnishability of the spendthrift trusts. Regardless of the merits of the claim, when the issue was decided by the judgment of the 122nd Judicial District Court of Galveston, and that judgment became final, the Bank was thenceforth barred from reliti-gating the issue.

Similarly, Myrick is barred by two previous judgments from litigation of the point. The agreed judgment of the Domestic Relations Court No. Three setting up the educational trust arid ordering the pledge of the Moody Trust income is final; the judgment of the 133rd Judicial District Court accelerating the payments and ordering that future income be paid into the registry of the court is final. Meritorious though his contention may be, the doctrine of res judicata applies. “. . . [I]t is settled that the principles of res judicata apply whether the first court determined the question before it correctly or erroneously.” In Interest of V.-M.-B-, 559 S.W.2d 901, 904 (Tex.Civ.App.—Amarillo 1977, writ ref’d n. r. e.).

Appellee Myrick, however, contends that while he was a party to the suits which ordered his trust income applied to the funding of the educational trust, he was not a party to the actual garnishment suit, and hence cannot be bound by the findings of the court in that action. We disagree. Even if there be distinction between the orders of the court in the cases in which he was a party and the judgment of the garnishment court which enforced such orders, his trustee was a party to the original garnishment suit, and he is collaterally es-topped from relitigating the issues therein decided. The courts of this state have expanded the doctrine of collateral estoppel so as to abandon the requirement of mutuality of parties and to retain the requirement of privity only to the party- against whom the plea of collateral estoppel is made in the second case. Hardy v. Fleming, 553 S.W.2d 790 (Tex.Civ.App.—El Paso 1977, writ refd n. r. e.).

The rule of collateral estoppel, or as sometimes phrased, estoppel by judgment, bars relitigation in a subsequent action upon a different cause of action of fact issues actually litigated and essential to a prior judgment. . . . The rule is generally stated as binding a party and .those in privity with him. Benson v. Wanda Petroleum Company, 468 S.W.2d 361, 362 (Tex.1971).

When the Bank defended the original garnishment suit, the beneficiary of the trust was in privity with the Bank which was acting as his trustee, and, hence, he is estopped from relitigating the issue. Weaver v. City of Waco, 575 S.W.2d 426 (Tex.Civ.App.—Waco 1978, no writ).

In his first counterpoint, appellee maintains that appellants’ point of error presents an inaccurate, multifarious generalization that fails to direct the attention of the court to any error relied on. We disagree. The wording of the point of error is precisely in accordance with that set out as exemplary by the Supreme Court in Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.Sup. 1970), and, according to the rule there set down, this point is “sufficient to comply with Rule 418, Texas Rules of Civil Procedure, and to allow argument as to all the possible grounds upon which summary judgment should have been denied.” 461 S.W.2d 119', 121.

Finally, appellee urges that because appellants did not preserve as a point of error the trial court’s failure to grant their motion for summary judgment, we may not reverse and render. Inasmuch as the case must be remanded in any event, we do not reach this point.

The trial court, because of its ruling on the effectiveness of the pledge of Moody Trust income to fund the educational trust, did not rule on the priority of application of the funds garnished to funding of the educational trust, child support, attorney’s fees relative to the child support, and attorney’s fees, if any, relative to the educational trust. On remand, it should make such determinations.

That part of the judgment upholding the garnishability of the income of Moody Trusts 19 and 25 for child support is affirmed, and that part of the judgment denying garnishment to fund the educational trust is reversed and remanded for further proceedings in accord with this opinion.

Affirmed in part and reversed and remanded in part, with instructions.

       See Ex Parte Myrick, 474 S.W.2d 767 (Tex.Civ. App.— Houston [1st Dist.] 1971, no writ) and Myrick v. Myrick, 478 S.W.2d 859 (Tex.Civ. App.—Houston [1st Dist.] 1972, no writ).