author: BISSETT, Justice.

text:
    Sylvia GARCIA, Appellant, v. Ruben GARCIA, Appellee.
    No. 955.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 12, 1975.
    Rehearing Denied Aug. 29, 1975.

      James H. Arnold, Jr., Texas Rural Legal Aid, Inc., Edinburg, for appellant.
    Phil M. Harris, Weslaco, for appellee.
   OPINION

BISSETT, Justice.

This is a child custody case. Suit was instituted on September 10, 1974 by Ruben Garcia, the father of the minor children, Susana T. Garcia and Ruben Enrique Garcia, Jr., against Sylvia Garcia, his ex-wife and mother of the children, wherein he sought to modify certain custodial provisions contained in a divorce decree that was rendered on December 7, 1973 which, among other provisions, appointed Sylvia Garcia managing conservator of the children and enjoined her from removing them from Hidalgo County, Texas. Ruben Garcia, petitioner-appellee, asked for an immediate delivery of the children to him, the issuance of a temporary restraining order which would restrain Sylvia Garcia from removing the children beyond the jurisdiction of the court, to be appointed temporary managing conservator of the children, as provided by Tex.Family Code Ann. § 11.-11(a)(1), and as managing conservator of the children as authorized by Tex.Family Code Ann. § 14.08. After a hearing before the court without a jury on September 23 and 24, 1974, judgment was rendered on October 17, 1974, which modified the prior custodial provisions in certain respects. Sylvia Garcia respondent-appellant, has appealed.

The case was docketed in the 93rd Judicial District Court of Hidalgo County, Texas, the same court that rendered the decree of divorce. Appellee’s verified pleadings were presented to the trial judge on the same day that suit was filed, and the judge, also on the same day, without notice to appellant, appointed appellee temporary managing conservator of the children, and set a hearing on the matters for September 13, 1974, wherein appellant was ordered to show cause why appellee should not continue to act as temporary managing conservator of the children until final judgment was rendered in the case.

The hearing scheduled for September 13, 1975 was duly held. Both parties and their counsel were present. The trial judge ordered that the child Susana remain in ap-pellee’s custody and that the child Ruben, Jr. be delivered back to the custody of appellant.

Appellee amended his pleadings on September 16, 1974 when he filed a pleading denominated “Amended Motion to Modify in Suit Affecting the Parent-Child Relationship.” The allegations, claims and pleas for relief were identical with those contained in his original pleadings. On the same day, September 16, 1974, the trial judge made and signed an order which reads, as follows:

“This the 16th day of September, 1974, the foregoing Motion having been presented with the Aftidavits attached thereto, a hearing on the Motion is set for 1:30 p. m. on the 23rd day of September, 1974.
/s/ Magus F. Smith JUDGE PRESIDING”

The hearing was held on September 23, 1974, as ordered. The parties and their attorneys were present. Ruben and Sylvia each presented testimony. No one demanded a jury. The hearing was concluded on September 24, 1974. Following the introduction of evidence presented by both parties and upon the conclusion of oral argument, the trial judge announced from the bench that the modification sought by ap-pellee would be granted insofar as the child Susana was concerned, but that such modification would not be granted with respect to the child Ruben, Jr. It was further announced that appellant would be permitted to take Ruben, Jr. to any point within Cameron and Hidalgo Counties, Texas. A written judgment, which reflected the oral pronouncements made by the trial judge on September 24, 1974, was duly signed and rendered on October 17, 1974.

Appellant, in her first three points of error, contends that the trial court was precluded from conducting a trial on the merits on September 23, 1974 (or from rendering the judgment that was actually rendered). The points are each prefaced by the statement: “The district court erred in holding, over appellant’s objection, that the hearing held upon September 23-24, 1974, was a final trial on the merits”. The reasons stated for appellant’s contentions are: “that the rules of Civil Procedure and applicable case law require a separate preliminary hearing where either party seeks temporary relief” (point 1); “that appellant’s right to a jury trial on the merits was denied thereby” (point 2); and “said ruling deprived appellant of adequate time in which to prepare her defense in violation of the due process clauses of the United States and Texas Constitution” (point 3). None of the points can be sustained.

Under the Texas Family Code Annotated, the pleadings which must be filed in order to change or modify existing custodial provisions regarding minor children are called “motions”, not “petitions”. Tex. Family Code Ann. § 14.08. The phraseology used by appellee in his pleadings and by the trial judge in his order did not restrict the hearing just to “a preliminary hearing where either party seeks temporary injunc-tive relief”. The motion prayed for a permanent change in the managing conserva-torship provisions with respect to the children. It is clear that all matters, both temporary and permanent, presented by the motion were set down for hearing or trial, and it could be reasonably expected that the trial judge would rule on all issues involved in the proceeding. There is no showing that appellant was led by either appellee, his counsel, or the trial judge to believe that the scheduled hearing for September 23,1974, would be limited to temporary matters.

The record and the unchallenged statements made by the parties in their briefs conclusively show that a preliminary hearing was held on September 13,1974, wherein the trial judge ordered that appellee keep Susana in his custody and that appellant have the custody of Ruben, Jr., pending further orders by the court. That order was purely temporary, and while it did not grant all of the temporary relief asked by appellee, it is not shown by the record that either appellant or appellee, at that hearing or subsequent thereto, asked the court for a ruling on any other temporary matter. Apparently, since appellant did not complain of the action by the trial court on September 13, 1974, we can only conclude that she was satisfied with those orders. The only remaining issues to be ruled on by the trial court at that juncture, when viewed from appellant’s position, were the matters of permanent managing conservatorship of the children and the modifications sought by appellant in her answer entitled “Respondent’s Countermotion to Modify in Suit Affecting the Parent-Child Relationship”. A trial on the merits was all that was left in order to dispose of the' case.

It is undisputed that both parties and their respective counsel appeared at the appointed time and place for the hearing which had been set for September 23, 1974. Each introduced evidence and cross-examined the other’s witnesses. Neither party offered any evidence relating to temporary injunctive relief, and neither attempted to obtain any temporary injunctive relief at the hearing. The evidence adduced, for the most part, related to the relative fitness of both parents, the best interests of the two children, and whether or not the present environmental conditions surrounding the children endangered their physical health or impaired their emotional development.

The judgment, which was rendered on October 17, 1974, was a final judgment. It recites that a hearing was set on the matters raised by appellee in his amended motion, and that “the court held a hearing in the above entitled and numbered cause on September 23 and 24, 1974,” at which both parties were “present and represented by counsel”, and that “the court heard evidence and argument of both parties.” The trial judge made findings in the judgment to the effect: 1) that the circumstances with respect to the child Susana “have materially and substantially changed since the entry of the order sought to be modified”; 2) that “the modification sought by petitioner will be in the best interests of Susana”; 3) that the circumstances relating to the child Ruben, Jr. “have not so changed”, and the requested modification will not be in his' best interest; and 4) that it was in the bést interests that appellant be permitted “to move to any point within the counties of Cameron and Hidalgo in the State of Texas”. Accordingly, the custodial provisions of the divorce decree were modified by the judgment to the extent that appellee was named managing conservator of Susana; appellant was given reasonable visitation rights with Susana; and appellant was allowed to take Ruben, Jr. anywhere within Hidalgo and Cameron Counties, Texas.

The statement of facts recites that “at a trial of the above styled and numbered cause . . . without a jury, the following evidence was adduced and none other . ”, and “that the above and foregoing sixty-one typewritten pages contains a full, true and correct narrative statement of facts and evidence so adduced at such trial”. (Emphasis supplied). Counsel for both parties approved the statement of facts on January 20, 1975.

A bill of exceptions, dated January 30, 1975, was presented by appellant to the trial judge. The bill states that the statement of facts does not contain certain objections to the admission of testimony made by appellant’s counsel “during or prior to the trial of this action . . . ,” and request was made of the trial court that certain objections and motions by appellant and rulings thereon by the trial court, which counsel for appellant alleged were omitted from the original statement of facts, “be accepted into the record of the present action for the purposes of appellant’s appeal.” The trial judge refused to either allow or qualify the bill, and stated the reasons for his action in writing. Included therein is the statement:

“ . . .at the time the cause was set for September 23, 1974, the same was set for trial on its merits, and counsel was so notified, and the cause was tried on its merits.”

The action by the trial court with reference to the bill is not challenged by a point of error. We find nothing in the record that impugns or contradicts the above quoted statement.

We hold that a separate and preliminary hearing was held concerning temporary matters on September 13, 1974. We further hold that the trial judge, on September 16, 1974, set the case for trial on its merits for September 23, 1974; that counsel for both parties were each so notified; and that a trial on the merits was had on September 23 and 24, 1974. Temporary matters, including temporary injunctive relief, had already been heard and disposed of by the trial judge at the preliminary hearing on September 13, 1974. There was no need to further consider temporary matters on September 23, 1974. Point 1 is overruled.

There was no denial of a right to a jury trial in this case. Appellant did not demand a jury trial at any stage of the proceedings. She did not deposit a jury fee ($5.00) with the District Clerk of Hidalgo County. She did not object to a trial before the court. She cannot now be heard on a complaint that the rendition of a final judgment denied her of a right to a jury trial. Rule 216, Texas Rules of Civil Procedure; Kost Furniture Co., et al. v. Radio Equipment Co., 100 S.W.2d 162 (Tex.Civ.App.—Amarillo 1936, writ dism’d w. o. j.); Richardson v. Raby, 376 S.W.2d 422 (Tex.Civ.App.—Tyler 1964, no writ); Trinity Con struction Company v. Franklin, 323 S.W.2d 668 (Tex.Civ.App.—Beaumont 1959, no writ). Under the record, appellant, in effect, waived a jury trial. Point 2 is overruled.

Appellant was not denied “an adequate time in which to prepare her defense”. In addition to what has already been related, appellant not only testified in support of the denials, claims and allegations made in her answer to appellee’s pleadings, but called six witnesses who testified in her behalf. There is no indication that there were other witnesses who might have testified favorably for appellant who, for some reason, were unavailable on the day of trial. Appellant did not ask for a continuance on the ground that she did not have adequate time to prepare for trial. The evidence which she introduced in defending against the allegations and claims made by appellee amply supported her position. Point 3 is overruled.

We have carefully considered appellant’s points 4 and 5. They have no merit. Points 4 and 5 are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    In the Matter of the ESTATE of Letha L. BOURLAND, Deceased, et al., Appellants, v. Leonard C. HANES, Executor, Appellee.
    No. 918.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 19, 1975.
    Rehearing Denied Aug. 29, 1975.

      Neil E. Norquest, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellants.
    Wilkins & Wilkins, McAllen, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from an order of dismissal of a writ of certiorari. The writ was brought to review an order of the probate court of Hidalgo County, Texas refusing to admit to probate a will of Letha L. Bour-land, deceased.

The controversy arose over two purported wills of the decedent: one dated March 4, 1969; the other dated September 4, 1969.

On January 5, 1970, the County Court at Law, Hidalgo County, Texas, sitting as a probate court, admitted the March will to probate and granted Leonard C. Hanes, as independent executor, letters testamentary. Thereafter, on March 5,1970, Billy L. Walker, Sr., as the named executor and a beneficiary of the September will, filed an application requesting among other things, the admission to probate of the September will and the revocation of Hanes’ letter testamentary. The probate court entered an order on November 8,1972, denying probate of the September will and confirming its prior order of probate of the March will. On October 9, 1973, Walker and another challenged this November order by filing an application for writ of certiorari in the district court; they amended their application on December 26, 1973. On that same day (December 26, 1973) the district court ordered that the writ of certiorari issue upon applicants’ execution of proper bond; the bond was filed and approved on January 24, 1974.

Subsequently, on February 15, 1974, Hanes filed his motion to dismiss the writ of certiorari, and the matter thereafter came on for hearing. After the hearing, at which no evidence was introduced, the district court ordered dismissal of the writ. From this order of dismissal, dated June 26, 1974, the applicants on the September will appeal. So the posture of the case on appeal here is that Walker and another as proponents of the September will are the appellants; Hanes as proponent of the March will is appellee.

We note at the outset that this appeal does not encompass the issue of whether appellants should prevail in attempting to probate the September will. The sole question before us is whether the district court’s action was proper when it dismissed the writ of certiorari it had theretofore granted to appellants.

This question is presented to us in two ways: first, by appellants’ appeal of the order of dismissal; second, by appellee’s motion filed in this Court on October 1, 1974, asserting that this Court has no jurisdiction to review this case because the district court was without jurisdiction to hear and determine appellants’ application for writ of certiorari.

Appellants’ first point of error asserts that the district court erred in dismissing the writ of certiorari because appellants’ application for the writ met all the requirements of Rule 344, Texas Rules of Civil Procedure.

The first amended original application for writ of certiorari alleged, among other things, that the probate court erred in the following respects:

1. In failing to set aside the probate of the March will because the subsequent September will revoked all previous wills executed by Letha L. Bourland.
2. In failing to admit the September will to probate because it was the last duly executed, witnessed, and acknowledged will of Letha L. Bourland.
3. Because there was no evidence that Letha L. Bourland was of unsound mind, lacked testamentary capacity, or was subjected to undue influence at the time she executed the September will.
4. Because the judgment of the probate court was so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

In reviewing appellants’ contentions, we are guided by the rule that the right of the parties to invoke the jurisdiction of the district court in certiorari proceedings should be liberally construed. Phillips v. Christian Science Church, 498 S.W.2d 680 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e., Tex., 501 S.W.2d 299). Consequently, we find that the allegations of error in appellants’ amended application for certiorari, which we have previously summarized, are sufficient to comply with the requirement of Rule 344, supra. See Jedlicka v. Wilkins, 459 S.W.2d 956 (Tex.Civ.App.—Tyler 1970, writ dism’d).

Even so, our examination of appellants’ amended application for certiorari reflects that the appellants failed to list the addresses of all adversely interested parties there named, as provided in Rule 344. Appellants contend that such failure is not fatal. That contention is correct. This is so because the rule in Texas is that before a pleading may be dismissed for want of form or other defectiveness, the party affected thereby must be afforded the opportunity to amend. Cabrera v. Texas Consumer Finance Corporation, 494 S.W.2d 581 (Tex.Civ.App.—Fort Worth 1973, no writ); Burns v. McKoy, 460 S.W.2d 930 (Tex.Civ.App.—Fort Worth 1970, no writ); Harold v. Houston Yacht Club, 380 S.W.2d 184 (Tex.Civ.App.—Houston 1964, no writ). The record before us does not reflect that appellants were afforded any opportunity to amend their application prior to its dismissal.

In his fifth reply point, the appellee states that there is no evidence in the record of service of process upon any of the parties named in the amended application for writ of certiorari. This statement is correct. But, absent evidence to the contrary, service is presumed. See Morris v. Drescher, 123 S.W.2d 958 (Tex.Civ.App.—Waco 1938, writ ref’d).

Next, appellee raises, for the first time, the issue of appellants’ failure to join the Attorney General as a party to this action. Appellee contends that the Attorney General is an indispensable party to any judicial proceeding to set aside the probate of an alleged will by the terms of which money or property is given, devised or bequeathed for charitable purposes. See Tex.Rev.Civ.Stat.Ann. art. 4412a (1966). Although appellee’s pleadings do not raise the issue of failure to join the Attorney General, such failure, where joinder is appropriate, is fundamental error which we must recognize when it becomes apparent on appeal. Akin Foundation v. Trustees for Preston Road Church of Christ, Dallas, 367 S.W.2d 351 (Tex.Civ.App. — Texarkana 1963, no writ).

The record before us, however, is void of any showing of just who the beneficiaries of the March will are. There are numerous references to the March will, but the will itself is not part of this record. The only reference to the type of devisees under the March will is found in appellee’s “Contest to Application to Probate Will” which addresses itself to appellants’ attempt to probate the September will. These are mere pleadings by appellee and are not evidence. Further, there is no showing that any of the gifts to any devi-sees were for “charitable purposes”. Fundamental error has not been shown in the record before us.

We hold, therefore, that the trial court erred in dismissing the writ of certiorari. And the appellants’ first point is sustained.

Appellants’ second point of error asserts that the district court had jurisdiction to hear this cause pursuant to Tex.Prob. Code Ann. § 80 (1956) because: the application for writ of certiorari was filed within two years of the probate court’s entry of final judgment; the testatrix was domiciled in Hidalgo County, Texas; and the application for writ of certiorari was filed before the effective date of the 1973 amendment to Tex.Prob.Code Ann. § 5 (1956), which provides for appeal from county courts at law (in probate matters) to courts of civil appeals instead of to district courts.

On November 8, 1972, a final judgment was rendered in favor of appellee denying original probate to the September will. Appellants filed their first amended original application for writ of certiorari on December 26, 1973. This is clearly within the two-year limitation period prescribed by § 30 of the Probate Code, supra.

The matter of the domicile is a matter to be determined by a trial on the merits. We do note, however, that it has previously been established that the testatrix, Letha L. Bourland, was domiciled in Hidalgo County, Texas at the time of her death. See Estate of Bourland v. Hanes, 474 S.W.2d 592 (Tex.Civ.App.—Corpus Christi 1971, no writ).

Direct appeals and certiorari are concurrent and alternate remedies. But the distinction between the two keeps them from being regarded as synonymous. The 1973 amendment to § 5 of the Probate Code (about appeals), therefore, had no effect upon § 30 of the Probate Code which allows a district court to correct errors of a county court by means of certiorari. Cluck v. Hester, 521 S.W.2d 845 (Tex.Sup.1975). Appellants’ second point of error is therefore sustained. Appellee’s motion to dismiss this appeal is overruled.

Finally, the appellee in his third, fourth and fifth reply points urges estoppel, legal insufficiency of the evidence, and undue influence, regarding the September will. These contentions are not before us on this appeal because they are matters to be resolved in a trial de novo on the merits in the district court. And the district court has not yet made rulings in a trial on the merits.

The judgment of the trial court is reversed and the cause is remanded for trial.


author: GUITTARD, Justice.

text:
    Marvin WADE, Appellant, v. Eddie Jewel Stevenson JONES and Roy Stevenson, Appellees.
    No. 18643.
    Court of Civil Appeals of Texas, Dallas.
    June 26, 1975.
    Rehearing Denied July 24, 1975.

      Greer H. Raggio, Raggio & Raggio, Dallas, for appellant.
    Richard E. Whinery, Dallas, for appellees.
   GUITTARD, Justice.

Marvin Wade sued Eddie Jewel Jones and Roy Stevenson for $4,990 which he alleges defendants agreed to pay him for a house sold to defendants and moved to their land. Defendants answered and moved for summary judgment on the grounds that the agreement was an oral sale of goods for more than five hundred dollars within the Statute of Frauds, Tex.Bus. & Comm. Code Ann. § 2.201 (Vernon 1968), and that plaintiff had violated certain ordinances of the city of Dallas. Also, defendant Stevenson moved for summary judgment in his favor on the ground that he had made no contract with plaintiff. The trial court sustained the motions and rendered judgment for both defendants, and plaintiff appeals.

We reverse with respect to defendant Jones because we hold that the summary-judgment proof fails to negate fact issues as to whether the Statute of Frauds was inapplicable because of defendant’s acceptance of the house, and as to whether the ordinances were inapplicable because the land to which the house was moved was located outside the city of Dallas. We hold also that the illegality of the contract has not been established because the evidence does not show conclusively that the contract could not have been performed in a legal manner. With respect to defendant Stevenson, we affirm the judgment because of the absence of a contract with him.

Statute of Frauds

In considering applicability of the Statute of Frauds, we assume that the house in question was “goods” as defined in the Code. The provision of the Statute of Frauds in question is found in Tex.Bus. & Comm. Code Ann. § 2.201 (Vernon 1968), as follows:

(a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. .
(c) A contract which does not satisfy the requirements of Subsection (a) but which is valid in other respects is enforceable
(3) with respect to goods . which have been received and accepted.

After review of the summary-judgment proof, we hold that an issue of fact is raised as to whether the oral contract was enforceable because of receipt and acceptance of goods, within § 2.201(c)(3). Plaintiff alleged that he furnished the house and the labor to install it on concrete blocks on defendants’ land and that defendants accepted this labor and material. He testified in his deposition that he moved part of the structure to defendants’ land at the suggestion of defendants’ aunt at a time when defendant Jones was in California. Later Jones returned from California and contacted plaintiff by telephone. By agreement, she and plaintiff went to the land, and they looked at the house together. Plaintiff says he priced the part of the house already in place to her for $3,750 and the remainder, which included a double garage, at $1,250. Apparently the total price was later reduced to $4,990. Jones said that she liked the house and wanted it. Accordingly, he moved the remaining part of the house to defendants’ land. He testified that defendant Jones appeared to be pleased with it when the garage part was delivered, and that she never made any objection. She discussed with him the employment of a carpenter to do further work on the house and also discussed having a concrete foundation poured for the garage.

At first plaintiff expected payment in cash. Jones talked about getting a loan from a third party because of other work that needed to be done on the house. Later she requested that plaintiff prepare a note for her to sign in favor of plaintiff. Plaintiff had a note and deed of trust prepared by a lawyer and presented them to her about a month or six weeks after their first meeting. According to plaintiff, Jones took the note and said that she would sign it, but never did do so. Plaintiff went back to see her the next day, but could not find her. Some time later, he saw her, and she then told him that she had decided to go back to California. Before this occasion, she had given no indication that she would not pay for the house.

We hold that this evidence is sufficient to raise a fact issue as to whether defendant Jones received and accepted the house within § 2.201(c)(3) and later attempted to repudiate her contract. At least, it shows that Jones did not discharge her burden on the motion for summary judgment to show absence of a fact issue concerning her receipt and acceptance of the house. Consequently, the summary judgment cannot be supported on this ground.

City Ordinances

We hold also that defendants have failed to establish as a matter of law that the property in question was subject to the ordinances of the city of Dallas. No direct evidence is in the record concerning the location of the corporate limits at the time in question. Plaintiff testified that he was not aware that the property was located in the city of Dallas. He said that he moved the house down Telephone Road to the location in question and did not see any city limit sign, but that there was such a sign “about half a mile further down.” Defendants attached to their motion for summary judgment a permit which plaintiff had obtained from the city of Lancaster to move the house in question. This permit shows that the house was to be moved to “Telephone Rd. Dallas, Texas.” Defendants also call attention to the proposed note and deed of trust presented to defendant Jones by plaintiff, which describe the land as located in “Block 8325, City of Dallas.” These documents do not establish as a matter of law that the land was within the corporate limits. We take judicial notice that a street address may be within or without the corporate limits of the city named. We are unable to determine whether the use of a city block number in describing a tract of land establishes conclusively that the tract has been effectively annexed to the city. Consequently, we hold that a fact issue exists as to whether the ordinances of the city of Dallas were applicable to the property in question.

Moreover, even if the land is in the city of Dallas, the summary-judgment proof fails to establish as a matter of law that the contract was illegal. Defendants pleaded the Dallas building code, which requires house movers to be licensed, bonded, and insured and requires a permit for each building to be moved into the city. Copies of the ordinance were attached to their motion for summary judgment. Although plaintiff admitted in his deposition that he did not obtain from the city of Dallas a permit to move the house to defendants’ land, the evidence does not show conclusively that he could not have obtained such a permit or that he could not have performed the contract in a legal manner. A contract which may be performed in a legal manner is not rendered illegal simply because it may have been performed in an illegal manner. Comeaux v. Mann, 244 S.W.2d 274, 277 (Tex.Civ.App.—Austin 1951, writ dism’d); Tubb v. Kramer Bros. Nurseries, 237 S.W.2d 680, 681 (Tex.Civ.App.—Waco 1951, writ ref’d n. r. e.); Erminger v. Daniel, 185 S.W.2d 148, 149 (Tex.Civ.App.—San Antonio 1945, writ ref’d w. o. m.); 6A Corbin on Contracts §§ 1510-1512 (1962); and see Hennessy v. Automobile Owners’ Insurance Ass’n, 282 S.W. 791, 792 (Tex.Comm’n App.—1926, holding approved).

Contract with Defendant Stevenson

The motion for summary judgment alleges that plaintiff had no contract with defendant Stevenson. Plaintiff admitted in his deposition that he had no contract with Stevenson. Consequently, the summary judgment with respect to this defendant was proper and is affirmed.

Reversed and remanded with respect to defendant Jones and affirmed with respect to defendant Stevenson.

AKIN, J., not sitting.

      . Tex.Bus. & Comm. Code Ann. § 2.107(a) provides, in part:
      “A contract for the sale of . . .a structure or its materials to be removed from realty is a contract for the sale of goods within this chapter if they are to be severed by the seller . . ..”


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Floyd JOHNSTON et al., Appellants, v. AMERICAN SPEEDREADING ACADEMY, INC., Appellee.
    No. 18680.
    Court of Civil Appeals of Texas, Dallas.
    June 26, 1975.

      Z. T. Fortescue, III, Fiedler & Fortescue, Richardson, for appellants.
    William M. Hayner, Flagg, Cooper, Hay-ner, Miller, Long & Owen, Dallas, for appel-lee.
   CLAUDE WILLIAMS, Chief Justice.

Alleging breach of fiduciary duties, conspiracy and unfair competition, American Speedreading Academy, Inc., sought injunc-tive relief, as well as actual and exemplary damages, against former employees who had resigned from plaintiff corporation and formed a competing company called Educational Reading Services, Inc. Following a hearing, the trial court issued a temporary injunction restraining the former employees and the new corporation from engaging in practices claimed to amount to unfair competition. From that order two of the former employees, Floyd Johnston and Robert Royal, and the new corporation Educational Reading Services, Inc., appeal.

The record reveals that in 1972 Robert B. Johnson and wife Lucille Johnson incorporated American Speedreading Academy, Inc. The business of this corporation was to teach speedreading and to license academies across the nation to hold speedreading classes. Employing the copyrighted training materials developed by Lucille Johnson, along with the market expertise of Robert Johnson, American Speedreading Academy progressed from a single home office in Dallas, Texas, to forty-seven licensees throughout the United States. More specifically, the record reveals that licenses were issued by American Speedreading Academy in Florida, South Carolina, New Mexico, Texas, Iowa, Washington, Wisconsin and Indiana. Since its formation, the appellee-corporation has built up an administrative staff as well as a staff of salesmen to market appellee’s Method of teaching speedreading to prospective licensees. Among these employees was Floyd Johnston, one of appellants, whose duties primarily involved the sale of appellee’s licenses and courses to individuals. He acted as sales manager and eventually became vice president of appellee-corporation. His duties gave him access to information concerning all facets of appellee’s business operations, including knowledge concerning the various licensees and prospective licensees throughout the country. Robert Royal, appellant, was also a former employee of appellee-corporation, where he was employed primarily to market programs to licensees. Robert L. Cook and Glenn Beaver were also former employees of appellee-cor-poration. The testimony reveals that Johnston, Beaver,' Royal and Cook constituted the principal staff of the appellee-corporation. In January 1975, Beaver, Royal and Johnston withdrew from appellee-corporation and became the incorporators of Educational Reading Services, Inc. which engaged in active competition with American Speedreading Academy, Inc. After resigning from appellee-corporation, Floyd Johnston sent letters to many of the existing licensees of American Speedreading Academy in which he informed them not only of his resignation from that company but apprised them of the fact that he had become associated with a group of former employees who were entering into a speedreading program far superior to the “antiquated” American Speedreading Academy methods. The record also reveals that the departing employees of appellee-corporation utilized information obtained from appellee’s “lead book” which included valuable and pertinent information concerning potential licensees. The record contains abundant testimony concerning actions and conduct on the part of both Johnston and Royal toward various licensees of American Speedreading Academy which tended to either cause or persuade such licensees to cease their business dealings with appellee-corporation and to become associated with the new corporation.

The trial court, in its temporary injunction, specifically enjoined and restrained appellants from:

1. Inducing, enticing or soliciting employees of Plaintiff to leave Plaintiff’s employment;
2. Contacting, communicating or soliciting with any customer of Plaintiff derived from any customer list, customer lead, mail, printed material or other information secured from Plaintiff or its present or past employees;
3. Entering into any contract with a customer or prospective customer with American Speedreading Academy, Inc., who has been since October 1, 1974, solicited by American Speed-reading Academy, Inc. either through its sales personel or in any other manner solicited for purposes of entering into business relations with American Speedreading Academy, Inc.;
4. In any other manner using any customer list or customer leads, mail, telephone numbers, printed material or confidential material of Plaintiff’s secured from its employees or former employees;
5. Making or copying in any way any customer lists or customer leads, mail, telephone numbers, printed material or other materials secured from the Plaintiff;
6. Discussing any activities, method of operation, finances, confidential practices and private business information, of the Plaintiff with any other party;
7. From engaging in any business endeavor of whatsoever nature which has among its purposes and/or endeavors the selling, counselling, advising, teaching, soliciting or dissemination of information concerning speed-reading, accelerated learning or any topic related thereto, within any State of the United States of America in which American Speedreading Academy, Inc. has licensees or schools that are in existence at this time, or that are in the process of being set up at this time, to wit:
Texas
Kansas
Colorado
Michigan
Maryland
Iowa
New Jersey
Arkansas
California
South Carolina
Ohio
Tennessee
New Hampshire
Arizona
Nebraska
Louisiana
New Mexico
Indiana
Florida
Idaho
Washington
Oklahoma
Minnesota
Illinois
8.Authorizing or permitting any agent, servant or employee to do any of the foregoing acts.

In oral argument before this court the attorney for appellants admitted that the trial court did not abuse its discretion in granting the injunctive relief set forth and contained in paragraphs 1-6, and 8, set out above. Appellants, therefore, do not appeal from, nor complain of, the restrictions placed upon them in these paragraphs. Appellants attack only the restraints set out in paragraph 7 and contend that those restrictions should be eliminated. In support of this contention, they argue that absent an agreement restricting competition the terms of paragraph 7 are too broad, too general and not supported by the record. Appellants also contend that the injunction bond made by appellee-corporation in the amount of $10,000 is insufficient, as a matter of law, to protect appellants and that this court should increase the amount of the bond to a minimum of $50,000.

Since appellants have judicially admitted the validity of all of the injunctive restraints against them with the exception of those contained in paragraph 7 of the court’s decree, our principal question is the validity vel non of the contents of that paragraph. Appellee concedes that the appellants are not restricted by an agreement with appellee-corporation. In the absence of a contractual restrictive obligation, does the record support the broad restraints against competition within the territorial areas therein recited?

Courts have universally recognized the right of a former employee to use, in competition with his former employer, general knowledge, skill and experience acquired in the former employment, especially in the absence of an agreement restricting competition. Annot., 28 A.L.R.3d 29, § 4(a) (1969); Revcor, Inc. v. Fame, Inc., 85 Ill.App.2d 350, 228 N.E.2d 742 (1967); Jewel Tea Co. v. Grissom, 66 S.D. 146, 279 N.W. 544 (1938); Jet Spray Cooler, Inc. v. Crampton, 282 N.E.2d 921 (Mass.1972). However, there is a definite limitation upon this right of competition. This right must be considered in relation to the equally well-recognized rule that even in the absence of a contractual restriction, a former employee is precluded from using for his own advantage, and to the detriment of his former employer, confidential information or trade secrets acquired by or imparted to him in the course of his employment. This rule has been affirmed and recognized in many cases dealing with the rights and duties of a former employee who solicits his former employer’s customers or otherwise uses customer lists obtained in his former employment. Annot., 28 A.L.R.3d 31, § 5 (1969), and cases therein collated; Annot., 30 A.L. R.3d 638, 639, § 3 (1970) and cases therein collated, including Welex Jet Services, Inc. v. Owen, 325 S.W.2d 856 (Tex.Civ.App.—Fort Worth 1959, writ ref’d, n. r. e.).

Appellants, by their admission, recognize the rule of law announced above and, therefore, do not attack the restrictions imposed upon them by the trial court other than those contained in paragraph 7. This paragraph is, indeed, broad in its scope in that it enjoins appellants from engaging “in any business endeavor of whatsoever nature which has among its purposes and/or endeavors the selling, counselling, advising, teaching, soliciting or dissemination of information concerning speedread-ing, accelerated learning or any topic related thereto, within any state of the United States of America in which American Speedreading Academy, Inc. has licensees or schools that are in existence at this time, or that are in the process of being set up at this time . . ..” Then the court lists the twenty-four states included in this restriction. An examination of the record reveals that other than testimony concerning Texas, Iowa, Indiana, Washington, New Mexico, South Carolina, Florida and Wisconsin, the only other geographical areas are referred to as “northwest,” “midwest,” “southwest,” “northeastern,” and “east.” We find no evidence in the record to demonstrate that appellee-corporation does business or has licensees in any of the enumerated states set forth in paragraph 7, other than those specifically mentioned above. Texas Rules of Civil Procedure, rule 683 expressly requires that every order granting an injunction shall be specific in its terms and shall describe in reasonable detail the act or acts sought to be restrained. We have concluded, and so hold, that paragraph 7 of the court’s injunctive order is too broad and too general and is not necessary to grant to appellee-corporation the injunctive relief originally sought. We are of the opinion that the remaining paragraphs of the court’s order are completely adequate to fully enjoin appellants from engaging in unfair competitive practices against appellee-corporation.

We cannot agree with appellants that the trial court abused its discretion in setting the amount of the injunction bond in this ease. We think that the record demonstrates that the bond set by the trial court is completely adequate to protect appellants.

With the exception of the elimination of paragraph 7 of the trial court’s order, the judgment of the trial court is affirmed.

Affirmed, as reformed.


author: CLAUDE WILLIAMS, Chief Justice. AKIN, Justice

text:
    Waylon E. CAMPBELL, et ux., Appellants, v. Don L. BOOTH et ux., Appellees.
    No. 18592.
    Court of Civil Appeals of Texas, Dallas.
    June 27, 1975.
    Rehearing Denied Aug. 7, 1975.

      John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellants.
    Don C. Templin, Haynes & Boone, Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Waylon E. Campbell and Margaret J. Campbell brought this action against Don L. Booth and Janet B. Booth for damages, both actual and exemplary, alleged to have resulted from affirmative fraudulent concealment in the sale of real estate. The Booths were the owners of a house located in Dallas, Texas, and entered into a contract with the Campbells during the month of August 1973, whereby the Campbells agreed to purchase the house for a stated consideration. In their petition the Camp-bells alleged that prior to the sale, the Booths had failed to disclose to them that the carpet throughout the house had been permeated with canine urine and that the Booths had actively concealed from the Campbells the extensive deleterious effects of said urine; that said facts were material to the transaction; that the Campbells had relied and acted on the presumption that no such fact existed and that they did not become aware of the malodorous nature and condition of the carpet throughout the house until after they obtained possession. They alleged damages caused by replacement of the carpet throughout the house which caused a depreciation of the value of the premises. Trial was to a jury, and at the close of plaintiff’s evidence, defendants moved for and were granted an instructed verdict. Judgment was rendered that plaintiffs take nothing. This appeal involves the sole question of the propriéty of the action on the part of the trial court in granting the motion for directed verdict.

Our appellate review of a judgment based upon a directed verdict is governed by well-established rules of law. A directed verdict presents a “no evidence” point. Shubert v. Fidelity & Casualty Co., 467 S.W.2d 662, 663 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.). We are required to accept as true the evidence in the record supporting appellants’ allegations, both of fraud and damages disregarding all evidence to the contrary. All conflicts and inconsistencies must be resolved in favor of appellants, and we must draw all inferences therefrom most favorable to appellants’ alleged cause of action. Constant v. Howe, 436 S.W.2d 115 (Tex.1968); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965); Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 865 (1956); Triangle Motors v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Anderson v. Moore, 448 S.W.2d 105 (Tex.1969). If the evidence presented is of such a conclusive character that reasonable minds could not differ as to its effect and only one conclusion may reasonably be drawn from it, only then does the question become one of law, thereby justifying the granting of an instructed verdict. Clevenger v. Liberty Mutual Insurance Co., 396 S.W.2d 174, 177 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). The appellate court does not pass upon the credibility of witnesses but is obligated to accept as true all evidence which, when liberally construed in favor of the adverse party, tends to support such adverse party’s contention and disregards all contradictory evidence favorable to the movant. When so viewed, if the evidence amounts to more than a mere suspicion or speculation that the fact propositions asserted by the opponent to the motion might be true or false, an issue of fact is raised and should be submitted to the jury. Humphreys v. Haragan, 476 S.W.2d 880, 882 (Tex.Civ.App.—Amarillo 1972, no writ); 3 McDonald, Texas Civil Practice § 11.28.2, at 235-36 (1970).

In determining issues of fraud courts allow a wide latitude, and the evidence thereon may embrace all the facts and circumstances which go to make up the transaction, disclose its true character, explain the acts of the parties, or throw light on their objects and intentions. The presence or absence of a certain state of mind may be proved by circumstances. Fraud is deducible from artifice and concealment as well as from affirmative conduct of a character to deceive. Blanton v. Sherman Compress Co., 256 S.W.2d 884 (Tex.Civ.App.—Dallas 1953, no writ); Ten-Cate v. First National Bank, 52 S.W.2d 323, 326 (Tex.Civ.App.—Fort Worth 1932, no writ).

We have examined the record in the light of these rules. Mr. and Mrs. Booth, the owners of the property in question, placed the property in the hands of a real estate broker to negotiate a sale. Mr. and Mrs. Campbell, on one or more occasions, inspected the house. During these inspection tours, made in company with the real estate agent, the Campbells did not observe anything out of the ordinary nor did they smell any offensive odors. The Campbells made an offer to purchase the house, and a contract for such sale was signed on August 31, 1973. A few days after the signing of the contract, Mr. and Mrs. Campbell and Mr. Campbell’s mother again toured the house and did not detect any offensive odors. The sale was consummated about September 25, 1973, and the Booths vacated the premises about October 1, 1973. At the time the Booths left the house, it was locked, and there is no evidence that anyone entered the premises until about one week later on October 7, 1973, when the Camp-bells returned to take possession. On that date, when the Campbells opened the house, they immediately detected the offensive odor for the first time. This odor was determined to have been caused by canine urine which permeated most of the carpets in the house. During the next two or three weeks, the Campbells employed a rug cleaning company, using the system known as “steamatic,” to attempt to clean and treat the carpets. During that same time they also had an experienced employee of the American Rug and Carpet Company and a Mr. Carr, the owner of a carpet supply and cleaning company, to inspect the premises generally. Thereafter, the carpets were taken up and removed. Samples of the damaged carpet were made and introduced into evidence. After replacing the damaged carpet with new carpet, the Campbells moved into the house. Mr. Campbell testified that he would not have entered into the contract for the purchase of the house had he been aware of the condition of the rugs which was discovered following the sale.

Mr. Campbell said that neither he nor his wife had any reason to suspect that there was anything wrong with the carpet prior to the closing of the contract of sale. When he and his wife entered the house, about two weeks later, they were confronted with the smell which they described as “horrible.” He said: “It just smelled horrible. It wasn’t just a little smell like the house had been closed up a week and without substantial ventilation, it just smelled horrible.” At the time the Campbells inspected the house, prior to the purchase of same, they knew that the Booths had several dogs, two Dobermans, and a smaller dog as well as several cats. At that time they did not know that the dogs were allowed in the house but did see the cats in a closet. Mr. Campbell said that on one of his inspection trips through the house that he noticed at least one candle which was burning and that his wife and the agent who was showing the house also saw it. Concerning deodorizers, Mr. Campbell testified that he observed “airwick around all over the place,” which he described as “little pull-up deals” and which would act as a deodorizer. He said that at least two of these were left in the hotise, one in the kitchen and one in the bathroom and that they had been pulled up but they did not get rid of the odor altogether. He said that: “I would have to say over a period of time they do not, but if you put enough in there apparently you do. The thing that gave a lot of odor was a small jar that we discovered afterwards also, in the kitchen, just a little bitty jar about like this with a powerful deodorizer.” In this connection he testified, in detail:

Q. And you said you found a deodorizer that seemed to work on these smells?
A. Uh, huh.
Q. Did they give you permanent relief? Did it remove them or cover them up?
A. It covered them up.
Q. Was it effective in covering them up?
A. It appeared to be very effective. .
Q. Did you try it after you found it out there?
A. I sure did.
Q. And how long would it give you relief in a room after you applied it?
A. I would say several hours.
Q. It lasts for several hours and when it would diminish or evaporate or whatever it does, would the smell be noticeably less or—
A. Back to the same.

Mr. Campbell further testified that after the rugs were replaced he had occasion to examine the bottom of the old carpets, and there he found stains on almost every area in every room. These stains appeared to him to be animal urine, and they had a very stringent odor.

Mr. E. H. Durham, president of American Rug & Carpet Company and an expert in cleaning and repairing rugs, examined the samples of carpet which had been taken from the premises. He said that based upon his examination the rugs were definitely stained with urine either from a cat or a dog and that the stains could not be effectively cleaned in place nor could they be effectively removed, cleaned and replaced because one could not kill the odor by cleaning. He testified that this odor could not be removed but it could be concealed to a degree by deodorizing it. He said that the deodorant would only be temporary and that the smell would return after a time. When asked about the deodorizer that the Campbells found on the premises, Mr. Durham said that this would possibly kill the odor for a length of time but that it would reappear. The deodorizer smell itself would disappear completely. He said that the deodorizer would completely neutralize a great deal of the smell but it would not ever completely remove the smell if one actually got down and put his nose on the carpet itself. Concerning scented candles, he testified they would kill odors in the air. When asked to explain the “stea-matic” process of cleaning rugs, he stated that this process could not have caused the dog or cat urine smell and stains on the back of the carpets. He further testified that when carpet is wet because of the steamatic process, a urine smell could be intensified, but once it dries up again, the smell would no longer be aggravated. He concluded, therefore, that the steamatic process would not cause an animal urine smell nor permanently aggravate such a smell.

Mr. Howard Carr, another carpet expert, personally examined the damaged carpet while in place at the residence. He testified that the backs of the carpets in question were all faded and coming apart. He said they were rotten and deteriorated and that such was caused by pet urine. He testified that he could tell the difference between a urine smell and the effect of steamatic cleaning process and that he definitely knew that the smell of the rugs in question was caused by urine. He said that: “Just to look at it from the surface it didn’t appear to show wear. It showed normal wear and until you smell it, you don’t recognize the damage.” He said when he initially went to the house and inspected the carpet he found that: “The odor about knocked you over.” He pulled the corner of the carpet up in each room to observe it and found no salvageable piece of carpet in the house. He said that in every room there was enough carpet damaged by the urine so as to make it unusable. However, there were no visible stains on the top of the carpeting, and he explained this fact by stating that these were all synthetic carpets and do not show stains on the surface. He said that at the time he inspected the carpets in the dining room and den, those rugs were still wet; that he could pick them up and twist the carpets and the urine would run out. He estimated that these wet spots were about a month old. When asked if the wetness could possibly have been caused by the steamatic cleaning a week or two prior to his visit, he replied: “If it had been steam cleaned a week or so prior it would have been wet evenly all over, and I am assuming that the people would know what they are doing and not leave it soaking wet around the wall.” He positively stated that the wetness he observed in the carpeting was urine and not water and that the urine was not diluted.

Don Booth testified that he and his wife lived in the house for two years before selling it to the Campbells. During this time they had two cats and three dogs; one of the dogs was an Afghan which weighed approximately fifty pounds and the other two were Dobermans, weighing about eighty pounds apiece. For six to eighteen months of his occupation of the house, Booth testified that the two Dobermans were allowed in the house in the evenings; that the Afghan was subsequently traded for a smaller dog but during the time they owned the Afghan he was also allowed in the house at night. The cats stayed inside at all times. When asked to examine the carpet samples that were removed from his house, he admitted that they smelled offensive and that the odor was fairly strong. With regard to candles, Mr. Booth stated that there were some in the den and there was one in the breakfast room. The candle in the breakfast room had a vanilla scent. He testified:

Q. Did you burn those all the time at the time that you were showing the house to the Campbells and the folks that were looking during that period of time?
A. The candles? I can’t say when the first time was, but when Mr. Campbell and Mrs. Campbell came back that afternoon I think they were probably on. It was the usual practice.

He also testified, concerning deodorizers:

Q. Did you have a deodorizer in your house at the time you were showing it for sale to the Campbells?
A. Yes, sir, there were deodorizers.
Q. Were they placed there on your own initiative or on the suggestion of your realtors?
A. They were on our initiative.
Q. Approximately how many deodorizers did you have throughout the house?
A. Well, there was — I know my wife had one of these solid deodorizers, I don’t know the brand name, in the kitchen and there was the customary one kept in each bathroom.

He was asked: “Do you recall when I asked you how many scented candles would you all light when the realtor came by with the prospective customer and you answered there were, I think, three in the den?” He answered, “Well, there were some candles over on a bookshelf that were lighted occasionally, yes, sir.”

Appellees contend that the case is governed by the rule that fraud, because of silence as to a material fact, can only exist where the defrauded party did not have an equal opportunity to discover the true facts. That rule, however, does not apply to cases where, as here, the fraud resulted from affirmative acts of concealment.

Appellees also argue the implementation of the rule that while inferences may be utilized in cases of fraud, they cannot be made the basis of recovery when it is demonstrated that it is equally possible to infer a favorable motive as an unfavorable one. They contend that under this record, one may infer motives which are favorable to them. While we recognize the rule we cannot agree with appellees as to its relevancy here. When viewed in the light most favorable to appellants, this record does not contain evidence that renders it equally possible to infer a favorable motive to appellees as an unfavorable one. To the contrary the evidence is sufficient to lead only to the conclusion that appellees utilized the scented candles and other deodorizers for the purpose of masking odors caused by animal urine so that a favorable atmosphere would thereby be created when potential purchasers of the house were present.

With regard to the issue of damages, Tex.Bus. & Comm.Code Ann. § 27.01(b) (Tex. UCC 1968) provides that the measure of actual damages in a suit for fraud in a real estate transaction is “the difference between the value of the real estate . as represented or promised, and its actual value in the condition in which it is delivered at the time of the contract.”

Appellants pled the statutory measure of damages in their trial amendment. The record contains sufficient evidence of probative force to present an issue on the question of damages.

The record is undisputed that the value of the house in question, as revealed by the contract between the parties, was $69,900. While this agreed price is not necessarily synonymous with “the value as represented,” as required by § 27.01, it is some probative evidence thereof. As to the value of the property in the condition in which it was delivered, the record is replete with evidence concerning the cost of replacement of the carpeting which was damaged. There is positive testimony concerning the value of the 292 yards of carpeting which was replaced, one-fourth of that amount being dark green shag, valued at the time and place of the conveyance at $7.95 or $8.00 per yard installed; one-half of light green shag valued at $8.00 or $8.95 a yard installed; one-fourth of a lighter pale pastel carpet, valued at $10.00 to $12.00 a yard installed. Testimony of carpet cleaning and deodorizing experts reveals that none of the carpet was salvageable and that the replaced carpet had a value of 0 dollars. There is also evidence that the carpeting, had it been in the condition that it was represented that it would be, would have depreciated in value by four-twelfths or four-fifteenths, considering its age and lifespan. When this evidence is considered in its entirety, we conclude that the jury could have computed “the value of the real estate as received” by deducting the value of the carpet from the contract price of the house. The figure thus arrived at would, at least, be some evidence of the value of the property in the condition in which it was received by the appellants. It must be emphasized that we are not here dealing with the question of factual sufficiency of the evidence to support a verdict of the jury, but we are viewing the record in the light of an instructed verdict, and in doing so we must determine whether some evidence of probative force exists justifying the submission of the issue to the jury.

We believe that the rationale of the Supreme Court in Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127, 128 (1950) is peculiarly applicable in this case. While the question in that case was damage to personal property, the logic applied to the solution of the problems is the same as here. In Pasadena, the Supreme Court stated that evidence of the reasonable cost of repairing the damaged property to the identical condition it was in prior to the injury constitutes prima facie evidence of damages. The burden of proceeding then shifts to the defendant to allege and prove that the value of the property has been enhanced beyond the value before the injury by the repairs. This rule is based upon the sound and practical theory that in a tort action the measure of damages should reasonably and fairly compensate for the injury that results directly and proximately from the wrongful act. Such rationale applies with equal force to an action based upon fraud.

The cases of Frey v. Martin, 469 S.W.2d 316 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.) and Thrasher v. Walsh, 228 S.W. 961 (Tex.Civ.App.—San Antonio 1921, writ dism'd) relied upon by appellees, while involving the question of damages, are easily distinguishable from the instant case. Both cases involved exchange of real estate, and each was submitted to the court or the jury. Neither case involved the question of propriety of an instructed verdict. In Frey, there was an exchange of property rather than a sale, as in this instance. In that case the fraud alleged was that one of the pieces of property exchanged, an apartment complex, did not contain the number of units represented. The court in that case concluded that the value per unit of the apartments was not a proper measure of damages in the case of fraud involving an exchange of real property. In Thrasher, the common law measure of damage was applied, that is the difference in the amount paid for the property and the true value thereof. The court held that since the facts alleged did not indicate what the respective values of the properties were, there was no basis upon which to compute the correct measure of damages. It is quite apparent that neither of these cases are similar to the one here and that in neither instance was there evidence of probative force on the issue of damages. As pointed out above, the testimony presented by appellants is sufficient to enable the jury to have some basis for answering the issues which should have been submitted to them on the question of damages.

When this record is viewed in its entirety, within the rules announced above, we conclude that there is more than a mere suspicion or surmise concerning the elements of fraudulent concealment and also of damages resulting therefrom. The trial court should have submitted these issues to the jury.

The judgment of the trial court is reversed and remanded.

AKIN, J., dissents.

AKIN, Justice

(dissenting).

I respectfully dissent. The trial judge ruled correctly in instructing a verdict for the defendants for the following reasons: (1) plaintiffs neither pled nor proved the proper measure of damages in a suit for alleged fraud under Tex.Bus. & Comm.Code Ann. § 27.01 (Vernon 1968); (2) there is no evidence of probative value on the vital issue of alleged “fraudulent concealment” under the doctrine of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898).

1. Damages

Plaintiffs’ trial amendment included the following pertinent pleading: “That subsequent to obtaining possession of the house Plaintiffs became aware of the malodorous nature and condition of the carpet throughout the house to their damage in the amount of $1,755, being the difference between the value of the house as represented and its actual value in the condition in which it was delivered to Plaintiff, in that the carpeting in said house had a fair market value in Dallas County, Texas as represented of $1,755 and its actual value in the condition at the time of the delivery was 0.” [Emphasis added.] To support this pleading, plaintiffs introduced evidence of the cost of replacing all of the carpeting in the house and then applied a depreciation factor to arrive at the market value of the carpet. This pleading and evidence fail to comply with Tex.Bus. & Comm.Code Ann. § 27.01(b) (Vernon 1968) which states:

The measure of actual damages is the difference between the value of the real estate ... as represented and its actual value in the condition in which it is delivered at the time of the contract.

The special issues would be the market value of the real estate as represented and the market value of the real estate as received. Admittedly, the contract of sale would be some evidence of the market value of the real estate as represented; however, no evidence was introduced as to the market value of the real estate as received with the damaged carpet. Thus plaintiffs have failed to plead and prove a prima facie case on damages which would require the trial judge to submit the case to the jury. If the trial judge submitted this case to the jury, then the jury would have been left to sheer speculation as to the market value of the house as received.

In Frey v. Martin, 469 S.W.2d 316 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.), a fraud case remarkably similar to the one before us, this court held that it was necessary to both plead and prove the market value of the property as represented and the market value of the property as received. In that case the alleged fraudulent representation was that the apartment complex contained one hundred sixty-six units, the price of which was $10,000 per unit. Frey, the plaintiff, contended and proved that there were only one hundred sixty-two units and that, therefore, he was entitled to be compensated for the shortage of four units at the agreed rate of $10,000 per unit or a total damage of $40,000. As here, Frey attempted to apply a measure of damages compatible with a suit for damages resulting from a breach of contract. In rejecting this argument, this court speaking through Justice Bateman said:

In his brief and oral argument Frey applies a measure of damages compatible with a suit for damages resulting from a breach of contract, but this is wholly inappropriate and not permissible in this case where the petition makes it quite clear that the action is ex delicto — a suit in tort for a wrong consisting of fraud inducing the contract, for which the law applies a different measure of damages. Id. at 317.

This court then reviewed the measure of damages recoverable by a defrauded purchaser of real estate under the common law, under the former statute Vernon’s Annotated Civil Statutes, art. 4004, and the current statute Tex.Bus. & Comm.Code Ann. § 27.-01(b) (Vernon 1968). This court concluded that since Frey had not alleged or offered proof under either the statutory or common law measure of damages, there was no basis in law on which the court could have rendered a judgment in his behalf. Likewise, here plaintiffs have neither pled nor proved the market value of the property as received in its alleged damaged condition. Instead, plaintiffs pled and proved the market value of the carpet as represented and as received. The difference in the value of the carpet as represented and the value of the carpet actually received is not the equivalent of proof of market value of the real estate received as a whole. George v. Hesse, 100 Tex. 44, 93 S.W. 107 (1906).

In arriving at the market value of real estate, improvements, such as carpet attached to the floor, may be considered only to the extent that such improvements enhance or contribute to the value of the real estate as a whole. State v. Wheeler, 390 S.W .2d 339 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.); Lower Nueces River Water Supply District v. Sellers, 323 S.W.2d 324 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979 (1936). It is error to permit a party to evaluate each improvement separately and then add the separate value of the improvements to the value of the real estate without the improvements to arrive at the market value of the property as a whole. Likewise, it is error to permit plaintiffs to evaluate the carpet separately and then subtract the value of the carpet from the real estate as a whole to arrive at the market value of the real estate as received.

In Thrasher v. Walsh, 228 S.W. 961 (Tex.Civ.App.—San Antonio 1921, writ dism’d), plaintiff sued to recover damages alleged to have been caused by a defective roof on the house purchased by plaintiff, who was induced to make such purchase by the false representation that the roof had been repaired and made rainproof. There, plaintiff sought damages for the cost of repairing the roof and replacing damaged wallpaper. From a judgment in favor of plaintiff, the court of civil appeals reversed and remanded, stating that the measure of damages is the difference in the amount paid for the property and the value of the property as received, rather than simply the replacement value of the wallpaper and the amount required for repair of the roof, citing George v. Hesse, supra.

The majority opinion attempts to distinguish Frey and Thrasher on two bases: (1) that each involved an exchange of real estate rather than a sale of real estate, and (2) that each did not involve an instructed verdict. I cannot agree with this rationale. It is a distinction without a difference. Furthermore, the fact that this is an appeal from an instructed verdict does not relieve plaintiffs of the burden of pleading and proving the proper measure of damages.

2. Fraudulent Concealment

I agree with the majority that, in reviewing the record on appeal from an instructed verdict, the evidence is to be considered in the light most favorable to plaintiffs’ case, discarding contrary evidence and inferences. The Supreme Court, however, recognized at an early date in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), that when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, such evidence is in legal effect no evidence and will not support a verdict or judgment. Seideneck v. Cal. Bayreuther Associates, 451 S.W.2d 752 (Tex.1970); Western Telephone Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895 (1937); Texas & N.O. R.R. v. Warden, 125 Tex. 193, 78 S.W.2d 164 (1935); see Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L. Rev. 361 (1960). The evidence of fraudulent concealment here is so weak as to do no more than create a mere surmise or suspicion of its existence and, therefore, falls within the doctrine of Joske v. Irvine, supra.

Plaintiffs allege that defendants fraudulently concealed the condition of the carpet from plaintiffs. With reference to fraudulent concealment, plaintiffs have suggested two theories: (a) that scented candles were burned during their three inspection tours of the house, thereby masking the odor of the alleged urine and (b) that the plaintiffs had used a powerful deodorant known as “Odors Away” plus Airwicks to conceal the alleged odor. Plaintiffs conclude from these inferences and the actual presence of the malodorous carpet that defendants fraudulently concealed the condition of the carpet from plaintiffs. I cannot agree.

(a) Scented Candles

There is no direct evidence that candles were burned during any inspection by plaintiffs. The following testimony of Mr. Campbell is the strongest testimony in this record with reference to burning candles.

Q. Do you recall whether or not the candles were burning when you saw the house?
A. On our first trip through or on our trip through.
Q. Where were these and what were they? Could you describe them for the court and jury, please, sir?
A. I only noticed one of them. My wife and the agent that was showing us the house observed it. [Emphasis added.]

Campbell testified further that he did not detect any odor prior to signing the contract, whether dog urine, scented candles or a deodorizer. Mrs. Campbell, who visited the house three times, confirms her husband’s testimony that at no time did she smell any odors. With reference to scented candles, Mrs. Campbell’s testimony is silent. The only other testimony with reference to the presence of scented candles was the testimony of one of the defendants, Mr. Booth. Booth testified that his real estate agent recommended, among other things, that they burn candles to give the house a “homey look.” He testified that there were approximately three candles in the den and one in the breakfast room. According to Booth, only the candle in the breakfast room was scented with a fragrance known as “vanilla” while the ones located in the den did not have a scent. He is not certain but states the candles in the den may have been burning when Mr. and Mrs. Campbell came back the second time to look at the house. He draws this conclusion because “it was the usual practice.” Other testimony came from a Mr. Durham, a witness who was engaged in professional carpet cleaning. Mr. Durham testified that scented candles could mask odors in the air. At no time, however, did he testify that scented candles would entirely kill the odor of canine urine; in fact, he states that nothing would eliminate such odor. Clearly, if the odor had been masked by scented candles, Mr. and Mrs. Campbell most assuredly would have smelled some odor — i. e. a vanilla smell or other scent used to mask the alleged canine urine odor.

(b) Other Deodorant

Plaintiffs’ second contention of fraudulent concealment concerns the use of deodorants. It is undisputed in the record that an Airwiek was used by the Booths in each bathroom and in the kitchen. They testified that this was the usual practice but could not say that there were Airwicks in use in the bathrooms or in the kitchen at the times relevant to this litigation. The Campbells’ only testimony was that they found several Airwicks in the bathroom and in the kitchen when they moved into the house and began cleaning. This was also the first time they smelled the strong canine urine odor.

With reference to the use of deodorizers the following testimony of Mr. Campbell was the only testimony that could possibly be construed as even a scintilla of evidence as to deodorants. This testimony of Mr. Campbell on cross-examination is as follows:

Q. Well, if that is true, how do you say that the Booths concealed the smell in the house if all of these experts and cleaning deodorizers and air conditioning and all of this didn’t help and it still smelled bad, how did the Booths conceal it?
A. There was [sic] basically three approaches that we feel were involved in it. Number one, there was Air-wick around all over the place.
Q. There was?
A. Yes, sir, little pull-up deals.
Q. All right. Now Mr. Campbell, where in the house are you able to testify that there was Airwiek?
A. I think probably the best way would be after they left we came in the house like there was some in the bathroom and some in the kitchen and there were candles that had been around. There was one candle.
Q. I was asking you about Airwick at this point. There was Airwick in the bathroom?
A. Yes.
Q. And Airwick in the kitchen?
A. That is correct.
Q. Is that all?
A. Just these pull-ups types.
Q. Were they pulled up?
A. Yes, sir.
Q. They didn’t get rid of the odor, did they?
A. I would have to say over a period of time they did not, but if you put enough in there apparently you do.
The thing that gave a lot of odor was a small jar that we discovered afterwards also, in the kitchen, just a little bitty jar about like this with a powerful deodorizer.
Q. Did you try that on the house?
A. Sure did.
Q. And it cleaned up like a whistle?
A. Just about like that. The man that brought that to our attention was the exterminator and he goes around houses and cleans.
Q. Do you recall my asking you questions . . . “That you don’t know that they used any deodorant?”
“Answer: I don’t know how. All I know is that it did not smell unduly when I came through so how they aired it out, I don’t know.
“Question: You don’t know of anything specifically that was done that you feel defrauded you other than what you think was done?
“Answer: It would have to be what I think yes, sir.”
Q. Do you recall those questions and answers?
A. Yes, I sure do.
Q. Your answer was, “I don’t know how. All I know is it did not smell unduly when I came through, so how they aired it out, I don’t know.” Is that still your testimony? Is that still correct?
A. I do know we had those other things around so that would have to be an assumption that that was the method.
Q. That is your assumption, right?
A. That is correct.
Q. Okay. What else? Was there anything else that you can think of that was used?
A. I think we mentioned the candles, these little Airwicks—
Q. Candles? Maybe we did mention candles. When you went through the house you testified on direct examination that you noticed a candle, is that correct?
A. Just in the general sense. I never thought about them. Everybody has got them.
Q. Do you know whether or not this candle was burning when you went therel
A. I didn’t pay that much attention. [Emphasis added.]

A deodorant known as “Odors Away” was left in the kitchen drawer by the Booths. The uncontroverted testimony by the Booths was that they had never used “Odors Away” except for a period of time some year and a half prior to the time in question when they used this deodorant in their child’s diaper pail. Mr. Durham, plaintiffs’ expert witness on carpet cleaning, however, testified that “Odors Away” was not sufficiently strong to totally eliminate or mask canine urine odor.

Considering this testimony in the light most favorable to plaintiffs, this evidence creates no more than a mere surmise or suspicion of the existence of any fraudulent concealment and is, therefore, of no legal effect. Hence, it will not support a verdict or judgment and falls within the ambit of the rule first announced in Joske v. Irvine, supra.

This is true because the burden of proof is upon plaintiffs to establish by competent evidence a prima facie case of fraudulent concealment. Such burden is not sustained by showing the damages may have resulted from the acts of "defendants. Plaintiffs must show that the vital fact here — fraudulent concealment — directly follows as a reasonable inference from the basic facts and circumstances proved. When it is necessary to aid the proven facts and circumstances by conjecture, plaintiffs have failed in their burden of proof. In Western Telephone Corp. v. McCann, supra, the Texas Supreme Court quoted with approval the following rule from the case of Byerly v. Consolidated Light, Power & Ice Co., 130 Mo.App. 593, 109 S.W. 1065, 1067 (1908):

We sanction the contention of plaintiff that the causal connection need not be shown by direct and positive evidence, but may be shown by other facts and circumstances, and that in the consideration of a demurrer to the evidence every reasonable inference should be indulged in favor of the plaintiff. But the rule is elemental that the burden remains with the plaintiff to the end of the case to establish by proof, not only the fact of the negligence averred, but also to show a direct connection between such negligence and the injury. Where the ultimate fact is not susceptible of direct proof, its existence must directly follow as a reasonable conclusion from its basic facts and circumstances, and it may be stated as an axiomatic rule that whenever court or jury are left by the evidence in a situation where, in order to find the ultimate fact alleged, they must piece out the facts adduced with conjecture or supposition, the plaintiff must be held to have failed in his proof. Where the evidence shows the injury might have been caused by the negligent act, but, in its aspect most favorable to plaintiff, is just as consistent with the inference that the injury might have been produced by another cause, to send the case to the jury would be to accord them the right to make an arbitrary choice between equally probable but unproved conclusions, and thus the verdict, if for the plaintiff, would be based not entirely on evidence, but in part on mere speculation and conjecture. This would mean a reversal of the rule imposing the burden of proof on the plaintiff, since the defendant, in order to prevent the jury from making him the victim of conjecture, would be forced to assume the burden of showing that his negligence did not produce the injury.

Here, fraudulent concealment is not the only reasonable inference to be drawn. For example, it is just as reasonable to conclude that the damage to the carpet was caused by the “steamatic” cleaning process used by the plaintiffs as it is to conclude that plaintiffs’ damage resulted from “fraudulent concealment” of canine urine. Indeed, it was some six weeks after defendants had vacated the house and approximately one week after the carpets had been steamati-eally cleaned that plaintiffs’ witness Mr. Cobb testified that the carpeting in two places was saturated with canine urine to the extent that pure canine urine could be wrung from the carpeting. It is undisputed, at least at the time the plaintiffs replaced the carpet, that the original carpet was damaged. I cannot accept plaintiffs’ argument that since the carpet smelled, it was the result of “fraudulent concealment” by defendants. Such conclusion does not necessarily follow from the facts proved.

This is especially true when the conclusion to be inferred is fraud. Our courts have long held that fraud is not to be presumed but must be proved by clear and convincing evidence. Hawkins v. Campbell, 226 S.W.2d 891 (Tex.Civ.App.—San Antonio 1950, writ ref’d n. r. e.); Hazle v. McDonald, 449 S.W.2d 343 (Tex.Civ.App.—Dallas 1969, no writ).

This court in Moore & Moore Drilling Co. v. White, 345 S.W.2d 550 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.), speaking through our Chief Justice, affirmed an instructed verdict for defendant in a fraud case for alleged failure to disclose material facts. In Moore & Moore Drilling Co., Chief Justice Williams set forth the elements of actionable fraud as follows:

Actionable fraud has certain fundamental characteristics; (1) there must be a misrepresentation as to material facts, either positive untrue statements, or concealment or failure to disclose facts within the knowledge of the parties sought to be charged, and as to which the law imposed upon such party a duty to disclose; (2) the complaining party must be shown to have relied upon the alleged misrepresentation to his damages; and (3) the complaining party must, himself, not have failed to exercise reasonable care to protect himself — in other words, in a “caveat emptor” situation he must not have shut his eyes and ears to matters equally open and available to him upon reasonable inquiry and investigation. Appellee correctly argues that disparaging inferences do not arise from lawful acts. And inferences cannot be made [the] basis for recovery, particularly when it is equally possible to infer a favorable motive, as an unfavorable one. [Emphasis added.] Id. at 555.

When Chief Justice Williams refers to not having shut eyes and ears to matters equally open and available upon reasonable inquiry I might respectfully add: nor close the nose to odor.

At the time the Campbells inspected the house, prior to the purchase contract being signed, they knew that the Booths had three dogs and two cats. They were aware that the cats and at least one of the dogs were kept in the house. The evidence here presents the classic caveat emptor situation. Not only did the Campbells know that the Booths had these dogs and cats but the contract of sale contained the following provisions:

This contract is made and entered into subject to the purchaser having five (5) working days from the date of acceptance of this contract in which to make inspections of the [hjeating, [a]ir [conditioning, visible [p]lumbing, and [ejlectrical [a]ppli-ances. Purchaser to pay for inspection; seller to pay for repairs if any. Seller agrees to deliver property free and clear of termites and termite damage. A letter from a licensed, bonded exterminating company attesting to this fact will suffice.

This clause, coupled with the fact that the Campbells were aware that the Booths had both dogs and eats and the fact that Mr. Campbell was in the real estate business, should have placed them on reasonable notice to inspect the carpeting for alleged animal urine damage. Plaintiffs were on notice of this possibility, had ample opportunity to inspect the carpet, and should have done so.

I conclude, therefore, that there was no evidence of probative value of any fraudulent concealment upon which a jury verdict could be based. The trial judge was, therefore, correct in withdrawing this case from the jury and instructing a verdict in favor of defendants.

For the reasons stated herein, I cannot concur in the majority opinion. The judgment of the trial court should be affirmed.