text:
    CITY OF WICHITA FALLS, Texas, Petitioner, v. STATE of Texas ex rel. Richard VOGTSBERGER, Respondent.
    No. B-5593.
    Supreme Court of Texas.
    March 3, 1976.
    Rehearing Denied March 31, 1976.

      H. P. Hodge, Jr., City Atty., Wichita Falls, for petitioner.
    Douthitt & Mitchell, Frank J. Douthitt, Henrietta, Paul 0. Wylie, County Atty., Archer City, for respondent.
   STEAKLEY, Justice.

This is a quo warranto proceeding attacking the validity of several related annexation ordinances enacted by the City of Wichita Falls. The suit was brought by the State of Texas on the relation of Richard Vogtsberger, an affected property owner. The trial court concluded that the basic Ordinance No. 2756, and hence the dependent ordinances, were void and its judgment to such effect was affirmed by the Court of Civil Appeals. The stated reasons of the intermediate court were that the annexed territory was not adjacent to the pre-exis-tent city limits; and that, upon the basis of a presumed finding that notice of the annexation was not carried in a publication of general circulation, there was want of requisite notice. 526 S.W.2d 618. We disagree in both respects and so reverse and render judgment for the City.

The City of Wichita Falls is a home rule city located in Wichita County with a population in excess of 50,000 but less than 100,000. In accordance with Tex.Rev.Civ. Stat.Ann. art. 970a, § 3.A(4) (1963), it has a three and one-half mile extra-territorial jurisdiction. The area attempted to be annexed by Ordinance No. 2756 was contiguous to the pre-existent boundaries of the City to the extent of the width of the right-of-way of U.S. Highway 281. The proposed annexation extended southward along the highway to a point of intersection with a water transmission line lying between Lake Arrowhead and the city limits. The annexed land then followed the water line eastward and ended at a point within the extra-territorial jurisdiction of the City. It is undisputed that the territory encompassed within Ordinance No. 2756 was contiguous to the boundaries of the City to the extent of the width of Highway 281; that all the annexed territory was within the extra-territorial jurisdiction of the City of Wichita Falls; and that there was no conflict with the boundaries or extra-territorial jurisdiction of any other municipality. Ordinance No. 2780 extended beyond the area annexed by Ordinance No. 2756 and along the right-of-way of the water transmission line for a distance less than three and one-half miles. Ordinance No. 2808 began at the terminus of the area annexed by Ordinance No. 2780 and included the remaining portion of the right-of-way of the water line, together with the area covered by Lake Arrowhead, also a distance of less than three and one-half miles. Ordinance No. 2808 specifically excluded any portion of the described area within the extra-territorial jurisdiction of the City of Scotland.

Citing Fox Development Company v. City of San Antonio, 468 S.W.2d 338 (Tex.1971), the basic contention of the City of Wichita Falls, Petitioner, is that the courts below were in error in holding Ordinance No. 2756 to be void for lack of adjacency. Respondent seeks to distinguish Fox on the ground that the instant case involves a direct attack in quo warranto, whereas the attack in Fox was collateral. Relying on City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695 (1944), Respondent argues that in a direct proceeding of this nature the courts may consider the shape of the area to be annexed and the purposes for the annexation in determining the validity of annexation ordinances; and that there are tests or standards to be applied in quo war-ranto proceedings different from those to be utilized in collateral attacks. Respondent says, finally, that if controlling, Fox should be re-examined and overruled.

Traditionally, the courts of this State have not scrutinized the purpose of annexation ordinances or the use or character of the occupation of the annexed territory. Nor have our courts prescribed shape limitations. These are legislative prerogatives. State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957); City of Gladewater v. State ex rel. Walker, 138 Tex. 173, 157 S.W.2d 641 (1941); State v. City of Waxahachie, 81 Tex. 626, 17 S.W. 348 (1891); Norris v. City of Waco, 57 Tex. 635 (1882); and State ex rel. Graves v. City of Sulphur Springs, 214 S.W.2d 663 (Tex.Civ.App.—Texarkana 1948, writ ref’d n. r. e.). Generally speaking, the limitations fixed on the power of a city to annex additional territory by legislative enactments are that the .territory be adjacent to existing boundaries and within the extra-territorial jurisdiction of the annexing city. Art. 970a, supra; City of Waco v. City of McGregor, 523 S.W.2d 649 (Tex.1975); Fox Development Company v. City of San Antonio, supra; State ex rel. Pan American Production Co. v. Texas City, supra.

Fox Development Company v. City of San Antonio, supra, involved a collateral attack on the validity of one of a group of “spoke” ordinances enacted by the City of San Antonio. The ordinance in controversy annexed the right-of-way of Highway 281 adjacent to the City of San Antonio. The area annexed was not included within and did not touch the city limits of any other city. We upheld the ordinance against the contention that it was void for want of adjacency. In so doing we reviewed essentially the same considerations urged by Respondent here, together with the ruling decisions of this Court, many of which we have noticed above. It was correctly said in Fox:

. There is no suggestion in the decisions of our courts that there may be legal non-adjacency, notwithstanding actual contiguity, where annexation by, or adjacency to only one city is involved.

See also City of Waco v. City of McGregor, supra; and City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex.1964). Respondent’s reliance on City of Wichita Falls v. Bowen, supra, is misplaced. That case involved a collateral attack on the annexation of two airfields and the highway connecting them to the city. The ordinance, covered the width of the highway for a distance of three to four miles before spreading out to cover the airfields. The Court of Civil Appeals held the annexation ordinance to be void on the ground that the land was not legally adjacent. This Court reversed, holding:

It is true, as shown by the opinion of the Court of Civil Appeals, that the land here annexed is only joined to the City by a narrow neck, but that fact, standing alone, could not render this ordinance void. Neither the statute, Article 1175, supra, nor the charter of the City, defines or provides any length, width, shape, or amount of area of land that the City may annex. It must follow, therefore, that any attack on this shape of the area included therein, if it can be made at all, a matter we do not decide, must be made in a direct proceeding to which the State is a party. (Emphasis added.)

It is apparent that Bowen reaffirmed established principles and did not reach or purport to decide the question at hand. Where there is compliance with statutory requirements, as here, the annexation ordinance must stand whether the attack is direct by quo warranto or collateral.

We agree with the Court of Civil Appeals that the description of the territory to be annexed by the ordinances in question was sufficient. See the cases there cited. We disagree with the rationale of the court in presuming that the newspaper carrying the notice of the proposed annexation proceedings was not a publication of the general circulation required by statute, and hence that there was want of requisite notice. The Court of Civil Appeals initiated the conclusion that all of the evidence considered by the trial court was not brought forward, and that the court was required to presume in support of the judgment of the trial court that it was proved that the newspaper carrying the notice did not meet the requirement of Tex.Rev.Civ.Stat.Ann. art. 970a, § 6 (1963). We find no warrant for these conclusions. The ordinances were not attacked by the State upon this ground; and there is no suggestion in the record that this issue was tried by consent. Nor is there any showing that the appellate record did not reflect all of the evidence considered by the trial court. Indeed, the judgment of the trial court recited that:

the parties entered their appearance by counsel and the exhibits were introduced and evidence stipulated; thereafter, the stipulations, including the proof of the exhibits, were reduced to writing and filed in the record herein; attorneys for Petitioner and Respondent submitted Memorandum or Trial Briefs, containing not only law briefs but written argument; after considering all of the competent evidence, exhibits, briefs and arguments of counsel, the Court is of the opinion that judgment should be entered herein for Petitioner .

The judgments below are reversed and judgment is here rendered that the State take nothing.

      . We note that Art. 970a, § 7.B-{a) (Supp. 1975) which became effective on September 1, 1975 provides:
      No home rule or general law city may annex any area, whether publicly or privately owned, unless the width of such area at its narrowest point is at least 500 feet, except that a city having a population of twelve thousand (12,000) inhabitants or less may annex an area that is less than 500 feet in width if the corporate limits of the city are contiguous with the property on at least two sides.
      Respondent does not contend that this limitation should be applied retroactively to the ordinances presently before us.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Alfred D. PRUSKE, and Alfred D. Pruske, R. V., Inc., Appellants, v. NATIONAL BANK OF COMMERCE OF SAN ANTONIO, Appellee.
    No. 15440.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 11, 1976.
    Rehearing Denied March 17, 1976.

      Robert L. Vale, Southers, Goldberg, Lyons & Huson, Inc., San Antonio, for appellants.
    Ted D. Lee, Cox, Smith, Smith, Hale & Guenther, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a suit by the National Bank of Commerce of Sail Antonio against Alfred D. Pruske, Patricia Pruske Harden, and Alfred D. Pruske, R. V., Inc., jointly and severally, under a floor plan agreement for motor homes, secured by installment loan security agreement, trust receipts, various promissory notes, and backed by personal guarantees of Alfred D. Pruske, to recover the unpaid balance remaining due after the sale of the mobile homes. Trial was to the court, which decreed: (a) plaintiff recover from all defendants, jointly and severally, the amount of $17,519.54, interest, attorney’s fees, and consequential damages, with defendant, Patricia Pruske Harden, being granted indemnity and judgment over and against co-defendant, Alfred D. Pruske, for any sums paid by Patricia Pruske Harden on such judgment; (b) plaintiff recover from defendant, Alfred D. Pruske and Alfred D. Pruske, R. V., Inc., the further sum of $6,169.98, interest, and attorney’s fees. Patricia Pruske Harden has not perfected an appeal from such judgment.

By three points of error appellant complains: (a) appellee has exercised an election of remedies by looking to other parties to satisfy its claim, even to the extent of securing final judgments against such other parties, thereby releasing appellant from his obligations; (b) the sale or disposition of the collateral was not conducted in a commercially reasonable manner, and therefore, appellee is not entitled to any recovery; (c) the court erred in granting judgment on behalf of appellee against appellant for that portion of the judgment represented by ap-pellee’s exhibits, “Q” and “R” (the Kroeger unit), in the amount of $12,388.73, for the reason that appellee did not make demand on appellant for the payment of the overdue installments before exercising its option of acceleration.

On January 24, 1972, appellant executed a floor plan agreement, security agreement, and a personal guarantee for the floor plan financing of motor homes by appellee. Pursuant to said agreements, appellee advanced credit to appellant for various motor homes, and in connection therewith, appellant executed numerous trust receipts and promissory notes, which are shown in the record as exhibits. After appellant incorporated his business as Alfred D. Pruske, R. V., Inc., additional personal guarantees were executed by Alfred D. Pruske on January 11,1973, guaranteeing the payment of all debts of the business. Subsequently, appellant obtained a divorce from his wife, Patricia, but continued to operate the business. During the year 1973, appellant began falling behind in the payments; and after several demands for payment were made, appellant finally obtained possession of the various motor homes. In 1973, appellant also advanced credit to appellant for a used Kroeger motor home under an installment loan security agreement, and a promissory note. Appellant also became delinquent in the payments of this loan, and appellee thereafter obtained possession of this motor home.

At the time that appellee entered into the floor plan agreement appellee also required repurchase agreements to be executed by each of the manufacturers of the new motor homes before it would finance such motor homes. After repossession of the new motor homes demand was made on each manufacturer for repurchase of these motor homes, with some manufacturers honoring their repurchase agreements, with the amounts received from such manufacturers being applied to reduce the debt of appellant. In addition, judgments were taken against two manufacturers, Ute Liner and Sooner. No payments on those judgments have been made by such manufacturers.

Appellee sold some of the new motor homes at private sales with appellant given an opportunity to submit an equal or higher bid; which he did not do. Thereafter, after notifying appellant of its intention, appellee advertised the remaining new mobile homes and the used Kroeger motor home for sale by ads run in both of the leading newspapers in San Antonio for three days, with the motor homes being made available for inspection by any prospective purchaser from 12 a. m. to 3 p. m. for five consecutive days at Playland Park on Broadway. Appellant was given an opportunity to submit bids, but did not. After receiving bids, appellee accepted the highest overall bid. After liquidating all mobile homes by the above described method and applying all amounts received to the debt of appellant, appellee made demand on appellant for payment of the remaining unpaid balance, and thereafter brought suit in March of 1974.

We first consider appellant’s point of error that appellee has released appellant from his obligations by exercising an election of remedies and securing final judgments against two of the manufacturers. Appellant cites and relies on the provisions of Section 9.501(a) of the Business and Commerce Code, which reads as follows:

(a) When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this subchapter and except as limited by Subsection (c) those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure. If the collateral is documents the secured party in possession has the rights, remedies and duties provided in Section 9.207. The rights and remedies referred to in this subsection are cumulative.

Appellant concedes in his brief that the remedies provided a secured party in said article are cumulative, and that the doctrine of election of remedies is not applicable in situations where the secured party is seeking to satisfy his claim for any deficiency due to a default and subsequent sale of the collateral (see page 5 of appellant’s brief). However, it is apparently his contention that while a secured creditor may first attempt to enforce his rights by one method, and if that proves unsuccessful, to pursue another, he should not be permitted to harass a debtor by simultaneously pursuing two or more of the several remedies available to him; that this constitutes a double-barrel attack, which is not proper; that in the instant case appellee somehow lost his rights against appellant by obtaining judgments against two of the manufacturers, Ute Liner and Sooner. It is also apparently appellant’s contention that a satisfaction occurred in this case by the obtaining of these judgments, even though it is undisputed under the record that no payments have ever been received under such judgments.

We find no authority to support appellant’s contention. The rule is set forth in 51 Tex.Jur.2d, § 288, at 557, as follows:

The remedies given the secured party upon default, including obtaining a judgment, foreclosing, or otherwise enforcing the security interest by available legal procedure, taking possession of the collateral, making direct collection from any account debtor or obligor on an instrument, disposing of the collateral, purchasing the collateral, or proposing to take the collateral in satisfaction of the obligation are expressly made cumulative under the Code. There is no necessity for the secured party to elect between remedies; he may take any permitted action or combination of actions.

See also Loiseaux, Default Proceedings Under the Texas Uniform Commercial Code, 44 Texas L.Rev. 702, 711 (1966), wherein it is stated:

Then in section 9-501(1) it is provided that after default the secured party has the rights and remedies given in part 5 of article 9, and those given in the security agreement; it provides also that the secured party may reduce his claim to judgment, foreclose, or otherwise enforce the security interest by any available judicial procedure. The concluding sentence of the subsection then proceeds to state: ‘The rights and remedies referred to in this subsection are cumulative.’ It would seem that the purpose of the Code is quite clear, namely, to abolish the doctrine of election of remedies when a security interest is enforced. The secured party is entitled to only one satisfaction, but he may seek it in a number of ways, even though they may presently be considered inconsistent.

We are unable to see how appellee’s action in pursuing one of his cumulative rights and remedies against the manufacturers on their repurchase agreement, collecting on some and crediting such payments on appellant’s debt, and in two instances obtaining judgments against certain manufacturers, is a harassment of the debt- or, or amounts to a double-barrel attack upon the debtor. In actuality it is an aid and benefit to the debtor as the effect is to reduce his debt, and is specifically authorized by the Code.

Appellant’s argument that the obtaining of a judgment against another party is a satisfaction of the debt is also without merit where such judgment has not been collected nor has any payment been made on it. The cases cited by appellant do not support such contention. See Armour Bros. Banking Co. v. Addington, 1 Ind.T. 304, 37 S.W. 100, 102 (1896), wherein it is said:

But a second judgment obtained upon the first is of no higher security than the first. Both should stand until the debt which is evidenced by them is fully paid off and satisfied. The first judgment is neither satisfied, merged, nor extinguished by a second judgment on the same cause of action, or by an affirmance thereof by a superior court. ‘Satisfaction’ is a technical term, and in its application to a judgment it means the payment of the money due on the judgment, which must be entered of record, and nothing but this is a legal satisfaction of the judgment.

Appellant’s first point of error is without merit, and it is overruled.

Appellant’s second point of error is that appellee is not entitled to any recovery because the sale or disposition of the collateral was not conducted in a commercially reasonable manner.

Tex.Bus. and Commerce Code, Section 9.504(c) provides in part as follows:

Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor

Section 9.507(b) of such Code provides in part as follows:

The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner.

The burden of proving commercial unreasonableness is on the debtor. Tarrant Savings Association v. Lucky Homes, Inc., 390 S.W.2d 473 (Tex.1965); Fryer & Willis Drilling Co. v. Oilwell, Division of U. S. Steel, 472 S.W.2d 857 (Tex.Civ.App.—Waco 1971), rev’d on other grounds, 493 S.W.2d 487 (Tex.1973).

In support of his contention that the sale was not conducted in a commercially reasonable manner, appellant relies chiefly on the testimony of William R. Harden, the husband of Patricia Harden, and John Jones, an auctioneer.

The thrust of Mr. Harden’s testimony is that, in his opinion, the sale was not commercially reasonable. Harden worked for Alfred D. Pruske from August to December 1972, at which time Patricia Pruske Harden was the wife of Alfred D. Pruske, but she was divorced sometime thereafter and married the witness, William R. Harden; and at the time of the institution of suit and at the time of the trial against Alfred D. Pruske and herself, she was married to Mr. Harden.

Harden stated that he has been in the recreational vehicle business since February 1969. He testified in some detail as to what he regarded a commercially reasonable sale to be, and how the herein sale differed in various respects from what he regarded as commercially reasonable: (a) there was not sufficient advertising, or sufficient opportunity for prospective purchasers to inspect and bid on the motor homes; (b) that if he was conducting the sale, he would contact the various dealers, go through the files of the company for previous prospects, and would make direct contact with such persons; (c) that he would advertise in the financial and sports section of the paper; (d) that he would have requested 90 days for the sale, and would have the sale at least six days a week, from 9 a. m. to 6 p. m., and that the best place for a sale would be the lot where the customers could see the service department.

He further testified what he considered to be a fair and reasonable price of various motor homes, and stated that, in his opinion, many motor homes sold did not bring what they were worth, and that some were sold at substantially lower prices.

John Jones testified that he was in the auction business, and that the firm he is associated with auctions off distressed merchandise; that he has not auctioned off motor vehicles, but that the firm has, and that around five years ago such firm conducted a motor home liquidation.

He stated that if he was conducting a sale rather than an auction, he would need a week to do research on the particular item, then he would submit a proposal to his client asking for state-wide advertising; that he would try to saturate the market; that in his opinion, the best place to hold a sale would be on the lot where the motor homes had been previously located; that if he were conducting the sale on a basis other than an auction, he would need at least 30 days, but that he believed that an auction was the best method.

He testified that he believed that either he or his firm was contacted with regard to the liquidation of the units previously belonging to Alfred D. Pruske, R. V., Inc.; that his partner proposed to sell the units at public auction for a 10% commission, plus 5% for advertising, with $5,000 to $6,000 being quoted for advertising. He stated that the advertising was at the expense of the consignor, which would have to be paid irrespective whether any sales were made or not, but that the 10% sale commission was paid only after a sale was made.

Appellee relies greatly on testimony that at the time of the repossession and the sales, the motor home business was in a very depressed state because of the gasoline shortage, and that under the market conditions the sales which were conducted by it brought an excellent return considering the state of the market. A disinterested witness, Mr. Donald E. McKelvey, testified that he had been in the mobile home business for 23 years, and that the company he owns is one of the largest companies in San Antonio, dealing with the type of recreational vehicle in which Pruske was a dealer. He testified that in 1973 and January of' 1974, the market was in a critical state. He stated he had heard about Pruske’s problems, and in October, November, and December of 1973, he would not have been remotely interested in purchasing; that in February of 1974 he would have looked at it if the price was right. He stated that he knew of companies that were being purchased at fifty to sixty cents on the dollar, and he would have been interested at that price. He further testified that Pruske never seriously approached him about buying the units. He stated that the serious conditions in the motor homes market were brought about by the gasoline situation beginning in the early part of 1973; and that when the embargo hit in about September or October, the market virtually stopped; that nationwide at least 150 to 200 manufacturers went bankrupt; that the market was somewhat on an upgrade in January, February and March.

Mr. Shirley, an Assistant Vice-President of the national Bank of Commerce, testified in some detail about the handling of the liquidation of the motor units. He stated various units were sold at private sale on different dates, and that it was finally decided to sell the remaining units at public sale, and to advertise it.

Mr. Jeffrey Wentworth, an attorney who once represented Mr. Pruske, testified chiefly in regard to the notices and letters received by Pruske. He testified that he and Mr. Pruske had conferred with appel-lee’s attorney about the situation, and that they had agreed to voluntarily relinquish possession of the motor homes.

Ted Lee, an attorney for appellee, also testified in some detail as to the various financial transactions, and as to the various notices and demands sent to Pruske.

It appears from the various exhibits and other evidence in the record that the amount owing on the repossessed new motor homes and the used Kroeger unit was over $100,000.00; and that the sale of such units by private and public sale brought in approximately $84,000.00, in excess of 75% of the total indebtedness. Moreover, it appears from the record that the expenses of such sale, including insurance, were only $1,362.10.

Appellee asserts that in view of the extremely depressed market and the testimony that motor homes were being sold at fifty to sixty cents on the dollar, that a recovery of well over 75% was extremely good; that the expenses of such sale were very low; and that the expenses from an auction sale, including advertising and commissions, would have been a great deal higher, with no guarantee that any greater amount would have been received from such a sale under the conditions of the market.

Appellee contends that the trial court’s implied finding that the sales were conducted in a commercially reasonable manner is supported by the following evidence: (a) the market for motor homes was in a very depressed state because of the energy crisis, and a large number of manufacturers were going broke; (b) before each and every motor home was sold appellant was notified and given a reasonable opportunity to submit a higher bid; (c) the sales price of the homes sold at private sale covered the entire unpaid principal owed on these motor homes; (d) adequate advertising of the remaining motor homes was made in three leading San Antonio newspapers with written bids being sent to appellee; (e) adequate opportunity for inspection was given to prospective purchasers; (f) after receiving all the written bids, appellee accepted the highest overall bid for the remaining units, thereby reducing the total indebtedness by the maximum amount; (g) the expenses of such sale were minimal, thereby increasing the net amount credited on appellant’s indebtedness.

Mere inadequacy of consideration alone does not render a foreclosure void if the sale was legally and fairly made. Tarrant Savings Association v. Lucky Homes, Inc., supra; Fryer & Willis Drilling Co. v. Oilwell, Division of U. S. Steel, supra. The fact that a better price could have been obtained by selling at a different time and a different method from that selected by the secured party, is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. Tex.Bus. and Commerce Code, § 9.507(b).

The courts, in determining whether a sale was commercially unreasonable, have considered many factors. See Siegel, The Commercially Reasonable Disposition of Collateral, 80 Comm.L.J. 67 (1975).

The question of what constitutes commercial reasonableness is sometimes a difficult one. A distinguished commentator has noted that Section 9.504 “attempts to chart a path in the narrow area between two policy positions; one, a desire to impede dishonest dispositions, and the other a reluctance to strangle honest transactions with red tape.” Hogan, The Secured Party In Default Proceedings Under The UCC, 47 Minn.L.Rev. 219-20 (1962).

A secured party is often placed on the horns of a dilemma. If he does sell, the debtor may complain that he should have waited for a higher offer. If he does not sell because he thinks the price might be deemed inadequate, the creditor may ultimately be obligated to sell at a lower price, in which case the debtor will possibly claim the secured party’s failure to go forward with the initial sale violated commercial reasonableness.

Questions involving the propriety of the sale are fact issues for the trial court. Tarrant Savings Association v. Lucky Homes, Inc., supra. In the case before us, no findings of fact or conclusions of law were requested of or made by the trial court. Where no findings of fact or conclusions of law have been requested of or made by the trial court, an appellate court must presume that the trial court found all necessary facts in favor of the judgment and a reviewing court is bound by such findings if there is any evidence of probative value to support same. Frost v. Village of Hilshire Village, 403 S.W.2d 836 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.); Texas State Board of Medical Examiners v. Haynes, 388 S.W.2d 258 (Tex.Civ.App.—Tyler 1965, no writ); Johnson v. Back, 378 S.W.2d 723 (Tex.Civ.App.—Amarillo 1964, no writ); Nortex Oil & Gas Corp. v. Clark, 369 S.W.2d 671 (Tex.Civ.App.—Dallas 1963, no writ); U. S. Truck Lines v. Texaco, Inc., 337 S.W.2d 497 (Tex.Civ.App.—Eastland 1960, writ ref’d).

The trial court impliedly found that the sale was commercially reasonable. We have carefully examined all of the evidence, and under the record there is sufficient evidence of probative value to support such finding.

Appellant’s second point of error is overruled.

By his last point of error appellant complains that the trial court erred in granting judgment for appellee against appellant for that portion of the judgment represented by the Kroeger unit (appellee’s exhibits “Q” and “R”) for the reason that appellee did not make a demand on appellant for the payment of the overdue installment before exercising its option of acceleration.

The note in question contains this provision:

Each of the undersigned and all guarantors, endorsers and sureties of this Note expressly waive presentment for payment, demand, protest, notice thereof and dishonor and diligence in collecting.

Before discussing the effect of the above waiver provision, we will consider appellee’s contention that there is ample evidence in the record that demand for payment was made, irrespective of any waiver. Appel-lee’s attorney so testified, and there were introduced into evidence as exhibits two letters wherein it was pointed out that appellant was behind in his payments on such note, and that if the payments were not made, the units in default would be repossessed, and any necessary legal action taken. There is also testimony that appellant’s then attorney had discussed the Kroeger unit with appellee’s attorney on or about January 19, 1974, and such attorney told appellee’s attorney that appellant could not continue to make the payments and for the bank to pick up the unit.

Appellant, Alfred D. Pruske, testified only by deposition. In the portions of such deposition introduced into evidence there is no testimony whatsoever concerning the question of demand for payment, and nowhere therein does he ever deny that such demand was made, or ever state that no demand was made. There is testimony that Mrs. Patricia Harden was not contacted in regard to the defaults on the note, but Mrs. Harden has not perfected an appeal, and is not a party to this appeal.

Moreover, appellee asserts that in view of the waiver provision in the note herein-above set forth, no such demand was necessary. This question was considered by this court in Whalen v. Etheridge, 428 S.W.2d 824 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.), where the note contained a very similar provision. In upholding such waiver provision and overruling appellant’s contention in such regard, this court cited numerous cases, particularly Inter-State Life Insurance Co. v. Turner, 371 S.W.2d 913 (Tex.Civ.App.—Waco 1963, writ ref’d n. r. e.), where the court said:

In our opinion demand and presentment were not necessary. The note expressly provided that notice of intention to accelerate maturity, demand and presentment for payment were waived. Art. 5937, Sec. 82, Vernon’s Ann.Tex.Stats. provides that presentment for payment is dispensed with by express waiver. This waiver is valid and effective.

There is ample evidence in the record to support the trial court’s implied finding that demand for payment was made, in addition to the fact that the note involved contained an express waiver provision. Appellant’s point of error number three is overruled.

All of the appellant’s points of error have been considered, and all are overruled. The judgment of the trial court is affirmed.

      . Some of these factors are: (1) the secured party’s obligation to obtain the best price possible; (2) whether it would be advantageous to sell the collateral in separate units or in bulk; (3) whether it would be best to sell at public sale or at private sale; (4) whether the collateral is available to prospective purchasers for inspection before and at the sale; (5) when the collateral should be sold; (6) the avoidance of unnecessary expenses; (7) whether the property was purchased by the secured party or by an outside party.

      . Each maker, surety, and endorser waives demand, grace, notice, presentment for payment and protest, and agrees and consents that this note and the liens securing payment may be renewed, and the time of payment extended without notice, and without releasing any of the parties.


author: REYNOLDS, Justice.

text:
    JUSTICE MORTGAGE INVESTORS et al., Appellants, v. C. B. THOMPSON CONSTRUCTION COMPANY et al., Appellees.
    No. 8626.
    Court of Civil Appeals of Texas, Amarillo.
    Feb. 17, 1976.
    Rehearing Denied March 8, 1976.

      Loeké, Purnell, Boren, Laney & Neely (Larry M. Lesh), Dallas, for appellants.
    Brock, Waters & Galey (Charles E. Ga-ley), Bill D. Tucker, Griffith & Brister (Bill H. Brister), Lubbock, for appellees.
   ON MOTIONS FOR REHEARING

REYNOLDS, Justice.

Our previous opinion is withdrawn, the judgment is set aside and this opinion, issued in response to the motions for rehearing filed by the parties, with the resulting judgment are substituted.

We remain convinced that, in this appeal from the granting of a temporary injunction restraining the trustee’s sale under a foreclosure of a deed of trust lien and a security interest, the record fails to show the probable injury necessary for a status quo temporary injunction. Reversed and injunction dissolved.

Flagg Homes, Inc., whose name has been changed to Old Glory Corporation, began negotiations in 1971 with C. B. Thompson Construction Company for the construction of the Hilton Inn Hotel on Flagg’s property in Lubbock, Texas. No written construction contract ever was executed; however, Flagg and Thompson agreed that Thompson was to undertake the construction for its cost plus five per cent.

Flagg sought a loan from Justice Mortgage Investors to finance the construction. Justice required Flagg to secure Thompson’s written commitment that, in the event of Flagg’s default and Justice’s request, Thompson would complete construction for Justice’s benefit. Flagg executed its 13 February 1973 promissory note in the principal sum of $2,250,000, bearing interest payable monthly, and providing that if the note is not sold pursuant to the conditions stated therein and is held by Justice on 10 January 1976, all principal and accrued interest shall, at the option of the holder, become due and payable immediately. A provision in the note is that the failure to pay any part of the principal or interest when due shall give the holder the option to declare all unpaid principal and accrued interest immediately due and to foreclose all liens and security interests securing payment of the note.

As security for the loan, Flagg executed a deed of trust into which was incorporated a security agreement, conveying its real property in trust to H. M. Kearby, trustee, to secure payment of the note, together with a financing statement covering personalty then or thereafter on or to be attached to the land and improvements. The deed of trust recites that it secures payment of renewals of and increases in the amount of the note. The instrument also contains the standard provisions for Justice’s optional acceleration of the maturity of the note if Flagg defaults in any payment or part thereof, and for the sale proceeds to be applied to pay the expenses incident to the sale and the sum due under the note with the remainder, if any, to be paid to Flagg or such other person(s) entitled thereto by law. The deed of trust and financing statement were filed with the Lubbock County clerk on 26 February 1973 and two days later the financing statement was filed with the Secretary of State.

In late February of 1973, Thompson moved a tool shed on the property and did some preliminary staking. It was not, in C. B. Thompson’s words, “a big deal,” and he “didn’t really feel like charging him [Flagg] for it.” The first construction labor for which Flagg was billed was performed 13 April 1973 according to C. B. Thompson, who characterized it as a “feeble start” and, because of delay in steel delivery, Thompson was not going “full blast” until July or August.

Flagg drew monthly on the amount borrowed from Justice. After Justice had advanced approximately one million dollars of the loan, Flagg executed as a renewal of, a substitution for and an increase in its loan another promissory note on 5 November 1973. This note, containing the same optional acceleration and foreclosure clause, is in the principal sum of $2,550,000, bearing interest payable monthly, and is made payable to the order of Justice on demand or, if no demand is made, on 10 January 1976. The note, as well as a renewal and extension agreement executed by Flagg and Justice, recite that the payment of the note is secured by Flagg’s 13 February 1973 deed of trust.

Flagg paid Thompson’s billings for work performed and materials used through October of 1974, but made no payment for work or materials thereafter. In October of 1974, when Justice had advanced $2,436,-000 of the loan, Flagg ceased making interest payments. Construction was completed, except for the cocktail lounge for which an estimated $30,000 to $40,000 would be required to finish, and possession was delivered to Flagg in December of 1974. .

On 27 February 1975, Thompson and C & L Mechanical, Inc., a subcontractor on the hotel construction, each had recorded in the mechanic’s lien records of Lubbock County an affidavit to perfect their mechanic’s and materialman’s liens for labor and materials furnished in the construction in the respective amounts of $367,290 and $$5,659.56, the latter amount having been reduced by Thompson’s payments to $6,000 at the date of the hearing. Mechanic’s and material-man’s lien affidavits were subsequently filed through 2 June 1975 by other suppliers of labor and materials.

Because of Flagg’s failure to make the designated interest payments, Justice declared the entire loan due and caused notices of trustee’s sales in May and June to be posted, but Justice voluntarily refrained from holding these sales. On 3 June 1975, H. M. Kearby, trustee, posted notice that the hotel property would be sold on the following July 1 in accordance with the provisions of the 13 February 1973 deed of trust and security interest.

Thompson filed suit on 25 June 1975 naming Justice, Kearby and Flagg (Kenneth P. Flagg individually, Flagg Homes, Inc., and Old Glory Corporation) as defendants. Thompson’s suit sought judgment against Flagg for the unpaid balance of labor and materials furnished for the construction, the establishment of its constitutional and statutory liens superior to those claimed by Justice, the foreclosure of those liens, and a temporary restraining order and a temporary injunction preventing the trustee’s sale pending a final hearing. On the same date, the trial court entered its order temporarily restraining the trustee’s sale.

C & L intervened, seeking recovery of the unpaid amount of its construction labor and materials from Thompson and Flagg, the establishment of its constitutional and statutory liens superior to Thompson’s and the claims of Justice, and the foreclosure of its liens. Kenneth Flagg and Old Glory answered, excepting to Thompson’s petition on the ground that it failed to state a cause of action and denying the allegations. Justice and Kearby filed a general denial and thereafter amended to specifically deny the superiority of Thompson’s and C & L’s liens and the right to a temporary injunction, and to assert the priority of Justice’s deed of trust lien and security interest.

Justice calculated that on June 30 Flagg was delinquent in interest payments in the amount of $305,925.19 and on 2 July 1975, Kearby posted notice of sale for 5 August 1975. The notice proposed the sale of the realty and improvements, including all equipment, fixtures and articles of personal property, which embraced everything upon which Thompson and C & L asserted superi- or liens. The court ordered its temporary restraining order continued until the hearing on the application for temporary injunction.

Although neither Flagg nor C & L had pleaded for injunctive relief, both joined with Thompson at the 1 August 1975 hearing seeking the injunction. During the hearing, it was shown that the hotel property, into which Flagg had invested about $500,000 of its own money, was the only substantial asset owned by Flagg, and that the hotel is a profitable operation with an appraised value of $4,275,000. The appraised value of the premises is more than the existing claims against the property, but there is no testimony of the sum it likely will sell for at foreclosure sale. C. B. Thompson enumerated items his corporation had supplied for and incorporated into the construction of the hotel which could be removed without material injury to the land or to the structure or to the items themselves. C. B. Thompson was of the opinion that there was no way he could collect from Flagg and, because it would be “virtually impossible for me to remove these items and even come close to recovering the money that is due me,” a foreclosure by Justice “would wipe me out,” and that he had a much better chance of being paid with Flagg in control of the operation. Further, the testimony revealed that Thompson had delivered certain lounge light fixtures and dimmer panels which remain crated on and unattached to the premises. It was stipulated that the materials furnished by C & L for incorporation into the building could be removed without material injury to the realty, to the structure or to the items. There was testimony that Flagg was attempting to sell, and that there was a prospect of selling, the property at a price more than sufficient to satisfy all claims.

Following the hearing, the court, reciting a finding of some evidence establishing “plaintiffs’ ” probable right of recovery and irreparable injury unless the status quo is maintained, ordered a writ of temporary injunction issued restraining and enjoining Justice and its trustee from proceeding with the foreclosure sale during the pend-ency of the suit. The court further ordered Flagg to deposit all hotel income in excess of operating expenses into the registry of the court with an accounting, the funds to remain subject to the orders of the court.

Justice has appealed. The ultimate question is whether the trial court abused its discretion in granting the temporary injunction. A trial court has broad discretion in deciding whether to issue a writ of temporary injunction, and the granting of the writ is not an abuse of that discretion when, as specified in Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953), the applicant shows a probable right of recovery upon a trial on the merits and a probable injury in the interim if the writ is not issued. The corollary rule is that the issuance of a temporary injunctive writ is not sanctioned if the applicant fails to show either a probable right of recovery, Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961), or a probable injury. Armendariz v. Mora, 526 S.W.2d 542 (Tex.1975). Justice challenges the granting of the temporary injunction on the grounds that neither a probable right of recovery nor a probable injury was shown.

At the outset, it is to be noticed that Flagg filed no pleadings and produced no evidence addressed to a defense of either the validity of its debt or Justice’s contractual rights of acceleration and foreclosure. Flagg does mention the evidence that Justice used $114,000 of the loan Flagg contracted for to apply on interest, that a portion of the amount Justice claims to be due is penalty interest, and that it was understood it would be January of 1976 before Justice got its money. Flagg then suggests that the equities in the matter and especially the uncertainty of the amount owed Justice is sufficient to enjoin the foreclosure sale on the authority of Lee v. Howard Broadcasting Corporation, 305 S.W.2d 629 (Tex.Civ.App.—Houston 1957, no writ). The reliance is misplaced. In Lee, the corporation successfully enjoined a foreclosure sale attempted by Lee to satisfy a debt, secured by deed of trust and chattel mortgage, by contesting both the due date and amount of the debt and tendering the full amount Lee claimed was due; here, however, Flagg does not dispute its delinquency of interest payments nor Justice’s right to proceed to foreclosure, and Flagg has neither tendered nor offered to pay the amount it admits is due. In these circumstances, Flagg does not have the right to stop the sale on the ground that a part of its debt is not due. Corbett v. Sweeney, 151 S.W. 858 (Tex.Civ.App.—Galveston 1912, writ ref’d).

The initial query, then, is whether Thompson and C & L have shown a probable right of recovery; that is, whether their liens are in any manner superior to Justice’s deed of trust lien and security interest. Without reciting the various facets of the contentions which will be answered explicitly or implicitly in determining the issue, suffice it to state that each party claims a superior lien.

Article XVI, § 37, of the Texas Constitution gives every person who labors on or furnishes material for buildings and articles a self-executing lien for the value thereof and specifies that the legislature shall provide by law for the speedy and efficient enforcement of the lien. Pursuant thereto, the legislature has enacted Articles 5452 et seq., as amended. Insofar as material here, section 1 of art. 5452 attaches the lien, when statutorily perfected, to the building, improvements and fixtures and on the land necessarily connected therewith. The first section of art. 5459 provides for the priority and enforcement of the lien and has been interpreted to mean that this lien is made superior to a prior recorded deed of trust lien on items of improvements which can be removed without material injury to the land and pre-existing improvements or to the items removed, but it is inferior to the previous lien if the removals cannot be made without material injury. First National Bank in Dallas v. Whirlpool Corporation, 517 S.W.2d 262, 269 (Tex.1974). Section 2 of art. 5459 establishes the inception of the lien at the occurrence of the earliest of (1) actual commencement of construction or delivery of material to be used in construction to the land if either is actually visible from inspection of the land, or (2) the proper recording of the written agreement, if any, to perform labor or furnish materials, or (3) the proper recording of a sufficient affidavit by the lien claimant of an oral agreement for construction.

In consequence of the foregoing and contrary to the contractors’ contention, a mechanic’s and materialman’s lien did not attach when Justice knew Thompson was to be the general contractor and required his assurance of completion before the loan was made; the earliest that the lien could attach was when Thompson actually commenced construction or delivered on the jobsite material to be used in the construction. Our view of the record, supported particularly by C. B. Thompson’s testimony and by the majority view of the courts considering the matter as reported in 1 A.L.R.3d 822, is that Thompson’s lien had its inception no earlier than the performance of construction labor on 13 April 1973, and not in the preceding February when Thompson moved a tool shed on the property and did some preliminary staking. Thus, Justice’s deed of trust lien and financing statement of record in February of 1973 were prior in time and superior except for the items of improvements furnished by Thompson and C & L which can be removed without material injury to the land, to the building and to the items themselves. On these items they are given the superior lien which, as stated in First National Bank in Dallas v. Whirlpool Corporation, supra, has “an unqualified preference over any prior liens.” 517 S.W.2d 268.

This Whirlpool holding disposes of Justice’s contention that its prior recorded security interest is, even if its deed of trust lien is not, superior to the mechanic’s and materialman’s liens by virtue of the provisions of Chapter 9 of the Texas Business and Commerce Code (1968). Yet, Justice argues that because Whirlpool was not concerned with a security interest in deciding the priority between an art. 5459 lien and a prior lien upon land, that case is not authority for the proposition that a mechanic’s and materialman’s lien attaches in preference to a security interest, but that Chapter 9 establishes the superiority of the security interest. The imperfection in the argument is that there is no Chapter 9 language which addresses competing claims between the holder of a security interest and a mechanic’s and materialman’s lienholder to property subject to a security interest given by a debtor who afterwards becomes possessed of the property impressed with a constitutionally sanctioned mechanic’s and materialman’s lien. To interpolate into the Code the meaning contended for by Justice would corrupt the long established principle that mechanic’s and materialman’s lien laws are liberally construed to protect laborers and materialmen. We do not think that the legislature, in enacting the Code, intended to nullify the preference which it had given in clear and unambiguous terms to mechanic’s and materialman’s liens. See Whirlpool, supra, at 269. Accordingly, the trial court was justified in finding that Thompson and C & L had shown a probable right of recovery.

This concurrence normally would render superfluous at this stage of the litigation any comment concerning Thompson’s and C & L’s declaration that their liens, intervening prior to the 5 November 1973 renewal of and increase in the amount of the loan, were superior to Justice’s deed of trust lien on the land and permanent improvements as to the original loan amount of $1,250,000 not then advanced or to the $300,000 increase in the loan. But, because the matter is interrelated with their claim of injury to be later noticed, we observe that they did not demonstrate the superiority declared. Generally, whether the prior deed of trust secures additional indebtedness depends on the intention or contemplation of the parties. Thompson and C & L adduced no evidence to negate the written expressions that the original lien would, and by the renewal and extension agreement did, secure from its inception the renewal of and increase in the amount of the loan. Under the developed facts, we cannot say that the mechanic’s and materialman’s liens have reached the superiority claimed. See, e. g., Wood v. Parker Square State Bank, 400 S.W.2d 898 (Tex.1966); 55 Am.Jur.2d, Mortgages, § 459.

The remaining query is whether Thompson and C & L have shown they will probably suffer injury from the trustee’s sale. Obviously, the sale will not, and Thompson and C & L do not pretend that it will, affect the contractual causes of action for debt Thompson has asserted against Flagg and C & L has asserted against Thompson and Flagg, the respective parties liable to the contractors for their labor and materials. Nor will the sale destroy the superior liens the contractors have on the improvements which they establish can be removed without injury, the only tangible security they are entitled to in view of Justice’s otherwise superior deed of trust lien and security interest. The contractors’ superior liens are enforceable on the removables in the hands of the purchaser who will have, at least, constructive notice of the liens. See First National Bank in Dallas v. Whirlpool Corporation, supra.

Nevertheless, Thompson argues that in other respects the court’s finding of irreparable injury is sustainable by the evidence. Pointing to the notice of sale contents, Thompson says that if Justice sells all of the property for cash, Justice will obtain all of the money for application to its debt to the exclusion of Thompson. Subject, as we have written, to the superior mechanic’s and materialman’s liens on the removables, Justice’s senior deed of trust lien has priority over the mechanic’s and materialman’s liens both as to the realty and improvements. Hammann v. H. J. McMullen & Co., 122 Tex. 476, 62 S.W.2d 59 (1933). It follows that Justice has the right to sell its interest in the property and to first claim the proceeds because, notwithstanding the statute, Thompson’s lien does not entitle it to have the unseverable improvements sold separately to satisfy its debt, Cameron County Lumber Co. v. Al & Lloyd Parker, Inc., 122 Tex. 487, 62 S.W.2d 63 (1933), nor to have the value of the improvements determined, the property sold and the proceeds prorated. C. D. Shamburger Lumber Co. v. Holbert, 34 S.W.2d 614 (Tex.Civ.App.—Amarillo 1931, no writ). However, should the sale generate a sum in excess of the sale expenses and Justice’s debt, the excess would not belong to Justice; the terms of the deed of trust specify that the remainder is to be paid to Flagg or the other person(s) entitled to it by law.

Additionally, Thompson argues that if Justice or some third party should purchase the property at the trustee’s sale, the purchaser would receive possession and purported title, would receive the income from the hotel operation and would, as found by the trial court, use, consume and depreciate the property and, if they desired, would dispose of the removable and unattached items, all to his injury. The brief response is that Thompson has shown no legal right to the income from the hotel operation, and there is no evidence that any purchaser would use, consume, depreciate or dispose of the removable items any different from the daily depreciation said to be occurring under Flagg’s ownership. This claim of injury is based on mere surmise or conjecture, neither of which will support an injunction, Millrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.1968); Haden Employees’ Ass’n. v. Lovett, 122 S.W.2d 230 (Tex.Civ.App.—Galveston 1938, writ ref’d), for mere surmise or conjecture is not any evidence of the fact. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898).

What has been said about the lack of a showing of injury to Thompson is equally applicable to C & L’s general assertion of its injury. Beyond that, C & L failed to show that Thompson is not financially responsible to it.

Expanding the argument further, Thompson, joined by C & L and Flagg, collectively assert that Justice is well secured in its loan and has shown no injury flowing from the injunction, while a foreclosure sale would impair the opportunity for the creditors to be paid, and that equity supports the position that all creditors will be best served if foreclosure is prevented and Flagg is allowed to continue operations. To the contrary, it is inequitable to enjoin, even temporarily, Justice’s clear right to proceed with the trustee’s sale after the applicants failed to make out a prima facie case for a status quo injunction. Camp v. Shannon, supra. And an injunction does not lie to temporarily immobilize the exercise of that right just to gain time to pay a due debt, Rogers Ranch Co., Inc. v. Darwin, 89 S.W.2d 828 (Tex.Civ.App.—San Antonio 1936, no writ), or because a delay of the sale might allow all creditors to be satisfied. Commonwealth Bank & Trust Co. v. MacDonell, 49 S.W.2d 525 (Tex.Civ.App.—San Antonio 1932, no writ).

In summary, a probable right of recovery on final hearing is shown on the part of Thompson and C & L, but they did not show that in the interim a legal injury probably will result to them unless the trustee’s sale is enjoined. The law is clear: an injunction will never be granted unless it appears that the injury will otherwise result to the applicant. Chisholm v. Adams, 71 Tex. 678, 10 S.W. 336 (1888). Consequently, the trial court abused its discretion in granting the temporary injunction.

All motions for rehearing are overruled.

The judgment is reversed and the temporary injunction is dissolved.

       All statutory references are to Vernon’s Annotated Texas Revised Civil Statutes.


author: BREWSTER, Justice.

text:
    Diane ERVIN, Appellant, v. WICHITA COUNTY FAMILY COURT SERVICES, Appellee.
    No. 17691.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 20, 1976.

      Ray Gene Smith, Wichita Falls, for appellant.
    Hank Anderson, County Atty., Wichita Falls, for appellee.
    Fillmore, Lambert, Farabee, Purtle & Lee, and Thomas H. Bacus, Wichita Falls, Guardian Ad Litem for minor children.
   OPINION

BREWSTER, Justice.

This is an appeal by Diane Ervin, the mother of two small children, namely, Melissa Ann Ervin and Raymond Louis Ervin, from a July 23,1974, decree of the Juvenile Court of Wichita County, which decree terminated the parental rights between the said Diane Ervin and her two children and appointed the supervisor of the Child Welfare Unit of the Wichita County Family Court Service as Managing Conservator of said children.

On December 12, 1973, the same Court had rendered a prior judgment declaring these same children to be dependent and neglected children in Case No. 5428-JN. That decree awarded the custody of the children to the Chief Probation Officer of Wichita County and provided for the placement of said children in the temporary care and control of their mother, Diane Ervin, under the supervision of the Wichita County Probation Department. No appeal was taken from that judgment.

This last decree referred to was rendered before Title 2 of the Family Code became effective on January 1, 1974. That proceeding was had under the then controlling statutes, Arts. 2330-2337, inclusive, V.A. C.S. Those statutes were repealed and replaced by Title 2 of the Family Code on January 1, 1974.

Article 2336, V.A.C.S., which was in effect at the time the December 12, 1973, judgment was rendered was in part as follows:

“If, in the opinion of the court, the causes of the dependency of any child may be removed under such conditions or supervisions for its care, protection and maintenance as may be imposed by the court, so long as it shall be for its best interests, the child may be permitted to remain in its own home and under the care and control of its own parent, parents or guardian, subject to the jurisdiction and direction of the court; and when it shall appear to the court that it is no longer to the best interests of such child to remain with such parents or guardian, the court may proceed to a final disposition of the case.”

And Art. 2337, V.A.C.S., provided in part: “In case any child is adjudged to be dependent or neglected under this title then such parents or guardian shall thereafter have no right over or to the custody . except upon such conditions in the interest of such child as the Court may impose

We are convinced that under the facts of this case the effect of the December 12, 1973, decree declaring the two children to be dependent and neglected was not to completely terminate the parental rights of Diane Ervin. The trial court could have rendered a judgment under the old law having that effect, or, as provided in the statutes referred to, it could render a judgment short of that. The judgment referred to did have the effect of drastically altering Diane Ervin’s parental rights but it did give her the right to the temporary care and control of her children, so her parental rights were not completely terminated. Ex Parte Johnny G_, 512 S.W.2d 821 (Tex.Civ.App., San Antonio, 1974, no writ hist.). What parental rights Diane Ervin had after the rendition of the decree of December 12, 1973, she still had at the time this action was filed on April 10, 1974, because no other judgment had been rendered in the meantime.

Subparagraph (b) of the enactment paragraph of Title 2 to the Texas Family Code provides as follows:

“ ‘(b) Any action or suit commenced after January 1, 1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction.’ ”

The suit involved here is one affecting the parent-child relationship as is described in the paragraph next above. Its purpose was to terminate what parental rights Diane Ervin still had. The guardian ad litem for the children contends that in order to obtain the relief appellant sought (to terminate the parental rights of Diane Ervin) it had to bring an action, as it did, under § 15.02 because it provided: “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that: . . . The guardian ad litem’s contention is that under the facts of this case this § 15.02 is the only section that an action such as the one involved here can be brought under. We believe that contention to be correct, but whether it is the only section or not that such an action can now be brought under is actually immaterial in this case. It is clear that this action can be brought under that section and, by its own wording, it was in fact brought under that section of the Family Code. The question before us then boils down to whether or not the appellee proved the case that it had pleaded under the provisions of § 15.02 of the Family Code so as to be entitled to a decree terminating the parental rights of Diane Ervin to her two children.

On April 10, 1974, a worker in the Wichita County Family Court Service filed this action under V.T.C.A., Family Code, § 15.-02(1)(A), (1)(C), and (2) requesting that the parent-child relationship between Diane Er-vin and her two children be terminated.

V.T.C.A., Family Code, § 15.02(1)(A), (1)(C), and (2) are material to a decision of this case and they are as follows:

“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
“(1) the parent has:
“(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; or
“(C) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
“(I) ... and
“(2) termination is in the best interest of the child.”

A non-jury trial was had, at the end of which the court rendered the judgment that is being appealed from. The court made the following findings in that decree: “The Court finds that the parents of the children have: voluntarily left the children alone or in the possession of another, not the parent, without expressing an intent to return. The Court finds that termination would be in the best interest of the children.”

The evidence adduced at the trial was that: on the night of March 31,1974, Diane Ervin brought her children to the home of her cousin, Gloris Baker, who also had small children, and asked her to keep them for her while she went to Lawton, Oklahoma; she said she went there to try to arrange a loan; at the time Diane Ervin left the children she told Mrs. Baker she would pick the children up the next day; the next day she called Mrs. Baker that she had had car trouble and would be delayed in getting back; the mother testified that she returned to pick up the children on April 2, and another witness testified that the mother did not return until April 3; in the interval while the mother was gone Gloris Baker had become ill and her sister, Ann Glover, had come over and gotten the children and had them at her home on April 3; when the mother went to Gloris Baker’s home to pick up the children she was in the company of a colored man, a colored woman and a colored child. Gloris Baker at this point called Helen Hicks, a worker at the Wichita County Family Court Service and advised her of the facts and Mrs. Baker was told not to let the mother have the children; Helen Hicks then came out and picked the children up and later filed this suit to terminate the parental rights of Diane Ervin. At the time the children were left with the Bakers they had colds and coughs. The mother had on other occasions left her children with her cousin, Gloris Baker, and on those occasions the children were well cared for by Mrs. Baker. The mother testified that she had dated with a colored man four or five times. The children were said to be, other than for the colds, average healthy children.

In its brief filed in this Court the appellee admits that it was necessary in order for it to make out a case for termination of parental rights under V.T.C.A. Family Code, § 15.02 that it prove by a preponderance of the evidence one or more of the things listed in § 15.02(1)(A) through 15.-02(1)(I) and, further, that termination of the parental rights are in the best interests of the children.

We agree with that interpretation of the law.

Appellee also admits in its brief that all of the evidence offered at the hearing was to the effect that the mother expressly stated at the time she left her children that she was going to return to get them. For that reason appellee did not have any evidence and the evidence was insufficient to sustain a finding under Subsection (1)(A) of § 15.02 to the effect that the mother had left the children with another, not a parent, and expressed an intent not to return.

Appellee also admits that there was no evidence tending to prove that the mother had violated Subsection (1)(C) of § 15.02 by knowingly placing or allowing the children to remain in conditions or surroundings that endangered their physical or emotional well-being.

After reviewing the statement of facts we find to be correct the appellee’s admissions that there was no evidence and insufficient evidence to support its pleadings that the mother had committed the acts referred to in Subsections (1)(A) and (1)(C) of § 15.02 of the Family Code.

Because appellee failed to produce evidence sufficient to prove that Diane Ervin had committed at least one of the acts referred to in Subsections (1)(A) and (1)(C) it failed to prove the case that it pleaded and was therefore not entitled to a decree terminating the appellant’s parental rights in her children.

The trial court did find in its judgment that termination of the mother’s parental rights would be in the best interests of the children. We hold that the evidence that was offered during the trial was legally insufficient to support that finding and that the trial court abused the discretion that was vested in it in reaching that decision under the evidence produced.

From our examination of the statement of facts it is apparent to us that appellee failed to prove facts necessary to make out the case it had alleged for a termination of parental rights under § 15.02 of the Family Code.

There is another reason why we must reverse this case.

The appellee in its brief admits that it did not prove the ease it alleged and urges the following prayer to this Court: “Appellee, the State of Texas, respectfully prays that this Court enter its Order reversing the Wichita County Juvenile Court’s decision terminating the parental rights of Diane Ervin and her two minor children . . .”

Appellee in its brief has confessed error by admitting that appellant’s points of error complaining of the lack of evidence to support the judgment are well founded. It admits that the judgment is wrong and prays that it be reversed.

Many cases hold that a reversal is proper where the appellee confesses error. Simmons v. Gardner, 135 Tex. 408, 144 S.W.2d 538 (Tex.Com.App., 1940); City of Tioga v. Graves, 220 S.W. 1110 (Tex.Civ.App., Amarillo, 1920, no writ hist.); and for other such cases see 4 Tex.Jur.2d, Rev. (Part 2) 523, Appeal and Error—Civil Cases, Section 873.

The guardian ad litem that the court appointed to represent the children and the appellant also pray that the case be reversed.

The judgment is reversed and the cause is remanded.


author: CORNELIUS, Justice.

text:
    LEDISCO FINANCIAL SERVICES, INC., Appellant, v. Langdon A. VIRACOLA, Appellee.
    No. 8341.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 24, 1976.

      Lewis R. Sifford, Anderson, Henley, Sheilds, Bradford, Pritchard & Miller, Dallas, for appellant.
    J. C. B. Aler, Weinberg, Sandoloski & McManus, Dallas, for appellee.
   CORNELIUS, Justice.

Based upon Tex.Rev.Civ.Stat.Ann. art. 5069, 11.01-11.11 Langdon A. Viracola filed suit against Ledisco Financial Services, Inc. and Carte Blanche, Inc. to recover damages for unreasonable collection efforts. The jury exonerated Carte Blanche, Inc. but awarded damages against Ledisco. The award was based upon findings that Ledis-co, through Harry J. Joy, made harassing telephone calls to Viracola as prohibited by Sec. 11.03(b) of the statutes, and that Joy assaulted Viracola. Damages were in the sum of $7,500.00 for the harassing telephone calls and $1.00 for the physical assault. Exemplary damages of $10,000.00 and attorney’s fees were also awarded.

Viracola’s evidence was generally as follows: During the course of several disputes with Carte Blanche relative to amounts Vi-racola owed, his credit card was cancelled, then reinstated, and cancelled again. Carte Blanche then engaged Ledisco to contact Viracola in Dallas for the purpose of retrieving the cancelled credit card. Harry J. Joy, an employee of Ledisco, went to Vira-cola’s home and requested the return of the credit card. In a confrontation which ensued, Joy became aggressive and attempted to force his way into Viracola’s house. When Viracola resisted, Joy hit him in the chest with a metal clip board. Viracola then pushed Joy off the porch and onto the grass and ordered him to leave. On several later occasions, some in the daytime and some at night, Joy telephoned Viracola’s house refusing to identify himself and made threats and used obscene language both to Viracola and to one of his children. To the contrary, Ledisco’s evidence was that Vira-cola was responsible for turning Joy’s visit into a physical confrontation and that he, Viracola, committed an assault upon Joy. Joy and the officers of Ledisco all testified that none of them made any telephone calls to Viracola or to his home. An attempt was made to prove that Viracola had committed assaults on some of his neighbors, raising an inference that those persons rather than Joy made the telephone calls to Viracola, but that evidence was excluded by the trial court. Ledisco’s officers testified that Joy was not authorized to use any force or pressure tactics whatsoever but was only authorized to ask for the card, and if it was refused to leave without further comment.

Ledisco has assigned seventy points of error, which for the purposes of brevity and better understanding, are grouped into categories for discussion.

I.

Articles 5069-11.01 et seq. create a right of action in favor of a consumer who has suffered from the actions prohibited by those statutes. Ledisco’s first group of points complains that there was no evidence and no jury finding that Viracola was a “consumer”. These points will be overruled. The statutes define “consumer” as an individual who owes or allegedly owes a debt created for personal, family, or household purposes. “Debt” is defined as any obligation arising out of a consumer transaction. A “consumer transaction” is a transaction in which one or more of the parties is a consumer. The undisputed evidence showed that Viracola used his Carte Blanche credit card for personal purposes and owed money to Carte Blanche, Inc. He also owed the obligation to return the credit card when it was cancelled. Both of these obligations were part of the consumer transaction between Viracola and Carte Blanche. Ledisco was engaged by Carte Blanche to enforce one of these obligations. Thus, according to the undisputed evidence, Viracola was a consumer within the intent of the statutes, and it was not necessary that an issue be submitted on that question.

II.

The statutory remedies are made available when certain acts are committed “in connection with the collection of or attempt to collect any debt.” Ledisco’s second and third groups of points complain because there was no evidence or jury find-mg that Ledisco was a debt collector or was ever engaged in an attempt to collect a debt. The basis of this argument is that Ledisco was only attempting to retrieve Viracola’s credit card and was not authorized to collect any money and made no attempt to do so. The statutes define “debt collection” as “any action, conduct or practice ... in collecting debts owed or due, . . ”. As heretofore noticed, “debt” is defined as “any obligation ” arising out of a consumer transaction. Under this broad definition, Viracola’s obligation to return the credit card upon cancellation would itself be a debt. Such a construction would not do violence to the generally accepted meaning of the word. See cases collected in 11 Words & Phrases, “Debt” at pages 394, 395. Moreover, the attempts of Ledisco to retrieve the card appear to have been so intimately connected to the entire consumer transaction as to be properly considered an integral part of the debt collection process within the meaning of the statutes. To hold otherwise would enable finance companies to remove an essential part of their debt collection activities from the regulation of the statutes by separating them and assigning them to others, thus defeating the overall purpose of the act. As Ledisco’s activities in this regard were undisputed, there was no need to submit an issue thereon.

III.

The next group of points concerns scope of employment. It is urged there was no pleading, no jury finding, and no evidence or insufficient evidence that Harry Joy acted in the scope of his employment for Ledisco when the acts occurred. Vira-cola’s petition simply alleged that Ledisco perpetrated the improper acts. Where the principal is sued for a tort committed by an agent, it is sufficient to allege that it was committed by the principal. 2 Tex.Jur.2d, Agency, Sec. 218, p. 674; Freeman v. Texas Bread Co:, 111 S.W.2d 307 (Tex.Civ.App. Galveston 1937, no writ). The pleadings were therefore sufficient. The questions whether an issue was required on scope of employment and whether there was evidence of such scope of employment present more difficulty. No issue on scope of employment was required in connection with the clip board incident because the undisputed evidence showed that Joy was in the scope of his employment with Ledisco when he went to Viracola’s home to get the credit card. As to the telephone calls, scope of employment was not submitted as such, but the jury was asked by issue No. 4: “Do you find from a preponderance of the evidence that . . . Ledisco Financial Services, Inc. placed telephone calls through its employee, Harry J. Joy, without disclosure of the name of the individual making the call and with the willful intent to annoy or harass or threaten any person at the . residence of the plaintiff . . . ?”. Led-isco, a corporation, could act “through” Joy only (1) if the acts were done while he was acting within the scope of his employment, or (2) if he was an agent who represented the corporation in such a way that his acts could be regarded as the acts of the corporation itself as distinguished from those of a mere servant. Standing alone, an issue inquiring if Ledisco acted “through Joy” allowed the jury to assume, without finding, that one of these essential facts existed. Under the recent amendment to Tex.R. Civ.P. 277,' this omission could have been supplied by an explanatory instruction, but Ledisco requested no such instruction. See Tex.R.Civ.P. 279. Nevertheless, we have concluded there was no evidence to support issue No. 4. It is without dispute that Joy was merely an employee of Ledisco and was not an agent with responsibilities which would render his acts the acts of the corporation itself. The calls were placed when Joy’s duty — that of attempting to retrieve the credit card — had been fulfilled. There was no evidence that the officers of Ledisco knew of, authorized, or ratified such calls. Viracola testified fully to the telephone conversations. There was no mention in them of the credit card or any debt or obligation on Viracola’s part, either to Carte Blanche or to Ledisco. The calls exerted no pressure, expressed or implied, upon Viracola to return the card or to pay any debt. The sole content of the calls was that of abuse and threats of a personal nature by Joy against Viracola. In the absence of any words, conduct, or other circumstances indicating that the calls were for the purpose of inducing Viracola to return the credit card, the only reasonable inference supported by evidence is that such calls were motivated by Joy’s personal anger and desire to retaliate because of his treatment by Viracola. Since they had nothing to do with Ledisco’s business — the retrieval of the credit card — they are insufficient to raise an inference that they were made in furtherance of Ledisco’s business.

IV.

Ledisco asserts there should have been an issue and a jury finding on whether the acts committed by Joy were a proximate cause of Viracola’s injuries and damages. Proximate cause was not submitted as such, but the jury was asked if Viracola sustained any actual damage “as a result” of the telephone calls, and if he was injured “as a result” of the clip board incident. These issues were framed in the express language of Section 11.10 which provides that any person “ . . . may maintain an action for actual damages sustained as a result of a violation of this Act.” We believe a submission such as given here is sufficient in this kind of case. It was undisputed that the acts caused the claimed injury. In addition, the acts were willful and intentional rather than negligent, and it is presumed that a person who acts willfully foresees and intends the consequences of his acts. Magnolia Petroleum Co. v. Beck, 41 S.W.2d 488 (Tex.Civ.App. Fort Worth 1931, writ dism’d). Therefore, the essential elements of proximate cause— cause in fact and foreseeability — were both present.

V.

Ledisco next complains of the award of actual damages, claiming there were no pleadings of damages, no definition of the term or the elements thereof, and that the award is not supported by evidence and is excessive. We have examined the record and find the points concerning the pleadings and the excessive nature of the award to be without merit. We agree that the jury should have been instructed on the proper elements it could consider in awarding actual damages. 17 Tex.Jur.2d, Damages, Sec. 285 p. 345^46; Sec. 299, p. 367. Ledisco, however, did not submit a definition or explanatory instruction as required by Tex.R.Civ.P. 279. Consequently, the omission does not constitute reversible error. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944); Dodson Brothers, Builders v. Adkins, 275 S.W.2d 143 (Tex.Civ.App. El Paso 1954, no writ); Wenski v. Kabitzke, 257 S.W.2d 153 (Tex.Civ.App. Austin 1953, no writ). It is urged that the actual damage award was not supported by evidence because damages for mental anguish cannot be recovered unless there is also physical illness or injury. As to common law torts, that has been the general rule in Texas for many years. But we are dealing with a new statutory tort where the statutes expressly give a right of action for oppression, harassment or abuse resulting from certain prohibited practices. Moreover, the decisions now recognize a right of action for mental anguish alone when the injury is essentially mental and subjective or where the injury is an -unper-mitted and intentional invasion of a personal right. Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967).

VI.

Exemplary damages in the sum of $10,000.00 were awarded upon a finding that Ledisco acted with malice in making the telephone calls inquired about in special issue No. 4. A group of points has been assigned asserting these damages were not justified by the evidence and were excessive. Exemplary damages may be awarded when a tort is committed with malice. The right to such an award is one of general application recognized by the common law and is not dependent upon statute. Briggs v. Rodriguez, 236 S.W.2d 510 (Tex.Civ.App. San Antonio 1951, writ ref’d n. r. e.). But a corporation can be held liable in exemplary damages only when it is shown that (1) the agent who acted with malice is something more than a mere servant; in other words, an agent who represents the corporation in such a manner that his acts are regarded as the acts of the corporation itself, or (2) the malicious act of a servant was previously authorized or subsequently adopted or ratified by the corporation, or (3) the corporation could reasonably have anticipated that what it knew the servant would do would likely cause him to maliciously do some other wrong. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934); Fort Worth Hotel Co. v. Waggoman, 126 S.W.2d 578 (Tex.Civ.App. Fort Worth 1939, writ dism’d jdgmt cor.); Wortham-Carter Pub. Co. v. Littlepage, 223 S.W. 1043 (Tex.Civ.App. Fort Worth 1920, no writ); Equitable Life Assur. Society of United States v. Lester, 110 S.W. 499 (Tex.Civ.App. 1908, no writ); 17 Tex.Jur.2d, Damages, Sec. 173 p. 239. The record here is devoid of evidence indicating that any of these essential facts was present. Exemplary damages were therefore not warranted.

VII.

The next group of points complains of the award of attorney’s fees because they were not pleaded, were not supported by evidence, and were not separated between Ledisco and Carte Blanche. The complaint regarding pleadings is based on the fact that attorney’s fees were awarded to cover appeals in this court and in the Supreme Court and there was no specific pleading for fees in those courts. The petition of Viracola prayed for “reasonable attorney’s fees”. Such a general plea is sufficient to authorize an award of fees in the higher courts. Wolfe v. Speed Fab-Crete Corporation International, 507 S.W.2d 276 (Tex.Civ.App. Forth Worth 1974, no writ). The complaint as to lack of evidence to support the award is without merit. Sever-ability is not material since Carte Blanche was exonerated, leaving Ledisco as the only party liable under the statutes.

VIII.

Ledisco next urges that the trial court erred in excluding certain evidence it offered against Viracola. The evidence was that of an alleged felony assault conviction against Viracola, altercations which he allegedly had with one or more of his neighbors, and an out of court admission he allegedly made. Complaint is also made that the trial court refused to allow Ledisco to perfect its bills of exceptions to the exclusion of these items of proof.

The record of the alleged felony conviction would have been admissible if it involved moral turpitude and was not too remote. 1 C. McCormick & R. Ray, Texas Evidence, Sec. 660 p. 508 (2d ed. 1956); Sec. 662 p. 509. Texas Employers’ Insurance Association v. Curry, 290 S.W.2d 767 (Tex.Civ.App. El Paso 1956, writ ref’d n. r. e.). But we are unable to find, and Ledisco has not directed us to, any place in the statement of facts where an offer was made to make such proof. In the absence of a tender, no error is shown. Ledisco should have been permitted to cross-examine Vira-cola about assaults he allegedly had made on some of his neighbors. Although great caution should be observed in admitting evidence of collateral or extraneous acts which would tend to create prejudice against a party, it should be allowed when it would tend either directly or by inference to establish or negate a principal fact in issue. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958); Dallas Railway & Terminal Company v. Oehler, 156 Tex. 488, 296 S.W.2d 757 (1956); Interstate Forwarding Co. v. McCabe, 285 S.W. 920 (Tex.Civ.App. El Paso 1926, writ dism’d); 23 Tex. Jur.2d, Evidence, Sec. 126 p. 184. A principal fact in issue here was the identity of the party who made the telephone calls. Vira-cola testified that he recognized the caller’s voice and that it was Joy. Joy denied that he ever made any calls to Viracola’s home. The purpose of showing that Viracola had been involved in assaults or affrays with his neighbors was to show that those parties rather than Joy may have made the calls. Evidence of such altercations, coupled with Joy’s testimony that he never called Viraco-la, could raise an inference that other persons who had been offended by Viracola made the calls rather than Joy. It should have been admitted for that purpose, under proper instructions of the court, for the jury to consider. There is no bill of exceptions showing what this cross-examination would have elicited, but the rule requiring that the proffered evidence be incorporated in a bill of exceptions does not apply to cross-examination of an adverse witness. Cunningham v. Austin & N. W. R. Co., 88 Tex. 534, 31 S.W. 629 (1895); Beckham Development Co. v. Bruce Clark & Associates, 492 S.W.2d 287 (Tex.Civ.App. Dallas 1973, no writ). There was an attempt to introduce evidence by cross-examination of Vira-cola and by direct examination of the witness Sweet, that during a recess of the trial Viracola, in the presence of Sweet, made an admission against interest concerning the genuineness of his claims in the suit. Unless it is privileged, any statement made by a party which is inconsistent with the position he takes at the trial is admissible as an admission against interest. 1 C. McCormick & R. Ray, Texas Evidence, Sec. 1141 p. 29 (2d ed. 1956). Because his attorney was present when the alleged admission was made Viracola claimed it was privileged, but the privilege does not obtain when the statement is made in the presence of a third person. 1 C. McCormick & R. Ray, Texas Evidence, Sec. 485 p. 406 (2d ed. 1956). The alleged admission should have been allowed. When it was excluded, Ledisco requested permission to elicit the testimony for its bill of exceptions but was not allowed to do so. It is reversible error to refuse a party the right to perfect his bill of exceptions. Dorn v. Cartwright, 392 S.W.2d 181 (Tex.Civ.App. Dallas 1965, writ ref’d n. r. e.). However, although a bill of exceptions may be completed by having the witness testify out of the presence of the jury, and having that testimony incorporated in the statement of facts or the bill, it is also a customary practice to show what the excluded testimony would have been by stating to the court what is expected to be proved by the witness and having the bill show that such was done. Gray v. Mills, 206 S.W.2d 278 (Tex.Civ.App. Fort Worth 1947), aff’d, 147 Tex. 33, 210 S.W.2d 985 (1948). Considered in the light of the testimony, the questions put to the witnesses, the objections and statements of counsel, and the remarks of the trial judge, the record here is sufficient to apprise both the trial court and this court of the nature of the evidence which was expected to be and would have been proved had it been allowed. See Gray v. Mills, supra; Hartfield v. Greber, 160 S.W. 603 (Tex.Civ.App. El Paso 1912), aff’d, 207 S.W. 85 (Tex.Com.App. 1918, jdgmt adopted).

IX.

Ledisco contends that on three occasions the question of insurance coverage was injected into the trial. We find these points to be without merit, and since it is unlikely that these matters will arise On a new trial it is not necessary that we discuss them. Certain errors asserted in the points concerning agency have already been dealt with in the portions of this opinion pertaining to scope of employment and exemplary damages.

X.

The errors noted require that the judgment be reversed. Because the various aspects of the case are so intimately connected, and the excluded evidence would seem to bear upon the liability as well as the damage issues, we conclude that the cause should be remanded, in the interest of justice, for a new trial.

It is so ordered.

      . Art. 5069-11.02.
      “No debt collector may collect or attempt to collect any debt alleged to be due and owing by any threats, coercion, or attempts to coerce which employ any of the following practices:

        (a) using or threatening to use violence or other criminal means to cause harm to the person or property of any person;

      (h) threatening to take any action prohibited by law.”
      Art. 5069-11.03.
      “In connection with the collection of or attempt to collect any debt alleged to be due and owing by a consumer, no debt collector may oppress, harass, or abuse any person by methods which employ the following practices:
      (a) using profane or obscene language or language that is intended to unreasonably abuse the hearer or reader;
      (b) placing telephone calls without disclosure of the name of the individual making the call, and with the willful intent to annoy or harass or threaten any person at the called number;

      (d) causing a telephone to ring repeatedly or continuously or making repeated and continuous telephone calls, with the willful intent to harass any person at the called number.”

      Art. 5069-11.10.
      “Any person may seek injunctive relief to prevent or restrain a violation of this Act and any person may maintain an action for actual damages sustained as a result of a violation of this Act. A person who successfully maintains such action shall be awarded attorneys’ fees reasonable in relation to the amount of work expended and costs.”