author: KLINGEMAN, Justice.

text:
    CREATIVE CABINETS, INC., Appellant, v. Sam JORRIE et al., Appellees.
    No. 15515.
    Court of Civil Appeals of Texas, San Antonio.
    June 2, 1976.
    Rehearing Denied June 30, 1976.
    Carl Robin Teague, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., San Antonio, for appellant.
    John M. Killian, San Antonio, for appel-lees.
   KLINGEMAN, Justice.

This is an appeal from a judgment that appellees, Sam Jorrie and Robert Jorrie, recover jointly from appellant, Creative Cabinets, Inc.: (a) the sum of $5,000.00 with interest thereon at the rate of ten per cent per annum from January 2,1975 until paid; (b) the sum of $5,000.00 with interest thereon at the rate of ten per cent per annum from February 2, 1975, until paid; (c) the sum of $2,091.00 with interest thereon at the rate of six per cent per annum from the date of the rendition of the judgment until paid. Trial was to the court without a jury. The trial court made extensive findings of fact and conclusions of law.

Appellant asserts four points of error. Two points of error complain that the trial court erred in rendering judgment for ap-pellees against appellant in the sum of $5,000.00 for holdover rent for the month of January, 1975, and $5,000.00 for holdover rent for the month of February, 1975, because there is no evidence to support the trial court’s finding that appellant remained in possession of the involved premises for the month of January, 1975 or the month of February, 1975. The other two points of error complain that the trial court erred in rendering judgment for appellees against appellant in the sum of $5,000.00 for holdover rent for the month of January, 1975, and in the sum of $5,000.00 for holdover rent for the month of February, 1975, because there is insufficient evidence to support the trial court’s findings that appellant remained in possession of the premises for the month of January, 1975 or the month of February, 1975.

Appellant makes no complaint on this appeal as to the award of $2,091.00. Appellant states in his brief that the only issue in the case is an issue of fact — whether or not the tenant remained in possession after the expiration of the term of the lease.

The holdover provision of the written lease contract between appellant and appel-lees reads as follows; 19. “If Tenant remains in possession after expiration of the primary term hereof, with Landlord’s acquiescence and without any distinct agreement of parties, Tenant shall be a tenant, month to month, at a rental of $5,000.00 per month.”

A “no evidence” point of error is a question of law, and in considering this question it is the duty of the court to view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of a fact issue or a fact finding and disregarding all evidence and inferences to the contrary. Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.1972); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). On the other hand, an assertion that the evidence is “insufficient” to support a finding of fact can mean that the evidence is factually insufficient, that is, the evidence supporting the finding is so weak, or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. The intermediate court is required to consider all the evidence in deciding this question. Garza v. Alviar, supra; Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958). See also Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

We have reviewed and considered all of the evidence. The evidence is conflicting and disputed in many respects. However, from an examination of the entire record, we have concluded that the trial court’s material findings of fact are sufficiently supported by the evidence.

The evidence is both legally and factually sufficient to support the trial court’s material findings of fact and the judgment. The judgment of the trial court is affirmed.

      . This amount is made up of the sum of $841.00 for damages to the improvements, and reasonable attorney’s fees in the sum of $1,250.00, as found by the court in its judgment.

      . Pertinent findings of fact may be summarized as follows: (a) the lease agreement between appellant and appellees provided for a term of one year terminating on December 31, 1974;. (b) said lease agreement provided that if tenant remains in possession after the primary term with landlord’s acquiescence and without any distinct agreement of the parties, tenant shall be a tenant, month to month, at a rental of $5,000.00 per month; (c) appellant remained in exclusive possession of the premises for the months of January and February, 1975; (d) appellant had equipment, supplies, merchandise, and machinery stored on the leased premises during the months of January and February, 1975; (e) appellant used the railroad siding situated on the leased premises during the month of January, 1975; (f) appellant had the only keys to the building and did not return them to appellees until the middle of February, 1975; (g) water, gas, and electrical utilities remained connected at the leased premises under an account of appellant; (h) appellant did not repair all damages to premises caused by removal of appellant’s fixtures until on or about February 17, 1975; (i) appellees agreed and allowed appellant to remain in possession during the months of January and February, 1975; (j) there was no distinct agreement between the parties covering the possession of the premises for the months of January and February, 1975; (k) appellant did not give notice to appellees that the lease agreement was terminated or that it considered the lease agreement terminated; (1) the lease agreement terminated on February 28, 1975; (m) appellant owed appellees $5,000.00 per month as rental for the months of January and February, 1975, or a total rental of $10,000.00, which has not been paid by appellant; (n) appellant did not repair all damages or keep and maintain the leased premises in good order and repair, for which appellant was responsible under the lease agreement; (o) prior to February 28, 1975, appellant had not made necessary and reasonable repairs on the overhead doors on the leased premises; that the reasonable cost of such repairs was $841.00, and such damages were not the result of natural wear and tear, and were appellant’s responsibility under the terms of the lease agreement; (p) the reasonable value of necessary legal services in connection with the collection of all sums due appel-lees was $1,250.00; (q) the lease agreement provided that all past-due rental payments shall bear interest at the rate of ten per cent per annum until paid.

      . Other pertinent provisions of the lease are as follows: 2. “The term of this lease shall be for a period of one (1) year .... Regardless of the commencement date of the lease, this lease shall terminate on December 31, 1974.” 6. “Tenant agrees to return said premises to Landlord at the expiration ... of this lease in as good condition and repair as when first received, natural wear and tear . excepted.” 10. “Tenant may . . . prior to the expiration of this Lease ... remove all fixtures and equipment which Tenant has placed in premises, provided Tenant repairs all damages to the premises caused by such removal.” 12. “Upon termination of this lease in any manner above provided Tenant shall pay to Landlord . (b) The cost of performing all covenants of Tenant relating to the condition of the premises incurred after termination by Landlord.”

      . There is evidence that the tenant was still occupying the premises in January and February of 1975. There is evidence that at the end of the primary term some equipment, fixtures, and property of appellant were still in the leased premises. There is evidence that appellant had the keys to the building during the months of January and February, 1975, and that such keys were not returned to appellees until sometime during the month of February, 1975. There is evidence that some damages had been done to the premises by the installation and removal of fixtures by appellant, and that such damages were not repaired until late in the month of February, 1975. There is evidence that some work done by appellant had left holes causing leaks in the roof and that tenant had made arrangements with a roofing contractor to repair the roof, which work was not completed until about the 27th or 28th of February. There is evidence that appellant was in charge and control of the property during the months in controversy; it had the keys; and it did not surrender the property until the last of February, 1975.
      Much of the above listed testimony is disputed by testimony of appellant’s witnesses, and the testimony before the trier of the facts was conflicting and disputed in many respects.


source: Caselaw Access Project

author: PRESLAR, Chief Justice.

license: Public Domain

text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. FIRST STATE BANK OF EL PASO, Texas and Kenneth C. Dean, Appellees.
    No. 6478.
    Court of Civil Appeals of Texas, El Paso.
    June 2, 1976.
    Rehearing Denied June 30, 1976.

      Bailey, Williams, Westfall & Fowler, James A. Williams, Dallas, for appellant.
    Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Malcolm Harris, El Paso, for appellees.
   OPINION

PRESLAR, Chief Justice.

This case involves the interpretation of an insurance policy commonly known as a Banker’s Blanket Bond, the right of the bank to recovery where money is lost by extortion, and the further question of the right of the insurer to recover against a president of a bank who complied with the extortionist’s demands.

The trial Court, sitting without a jury, and based on stipulated facts, entered judgment for the bank against the insurer and did not permit the insurer to recover against the bank president. We affirm.

The First State Bank of El Paso, Texas, Appellee, brought this suit against United States Fire Insurance Company, Appellant, on what is commonly referred to as a Banker’s Blanket Bond, contending that the bank had lost $40,000.00 when its president, Kenneth C. Dean, paid such amount to an extortionist. The Appellant-insurer denied the claim and joined the bank president, Kenneth C. Dean, as a third party defendant, contending that in the event recovery was allowed against it, then it was entitled to recover over against Dean, because he was using the bank’s money for personal use in freeing his wife.

On August 4, 1972, at about 8:30 A.M., Marilyn Dean, the wife of Kenneth C. Dean, bank president, was kidnapped by an unknown assailant. The kidnapper called Dean, put his wife on the phone and then threatened to kill her unless Dean came up with $100,000.00 is small bills; Dean talked him down to $50,000.00, told a vice-president of the bank about the call and instructed him to get the $50,000.00. Dean also called the F.B.I., but refused to wait to have his car bugged because the extortionist had given him a ten-minute time limit. Dean then left the bank with the money, which was only $40,000.00 due to an accounting error, and went from telephone to telephone at the extortionist’s instructions until he was finally told to leave the money in his car and go to a phone in a shopping center; when he returned from the phone, the money had been taken from his car. His wife was later released, and the money has not been recovered. Soon after the incident the Board of Directors of the bank made a resolution absolving Dean of any liability or wrongdoing.

Recovery is sought by the bank under two sections of the Banker’s Blanket Bond. One being the “on Premises” coverage, Section (B), and the other being “In Transit”, Section (C). As applicable here, Section (B) provides that the insurer will indemnify and hold harmless the insured for “Loss of Property (occurring with or without negligence or violence) through robbery, burglary, common-law or statutory larceny, theft, false pretenses, hold-up, misplacement, mysterious unexplainable disappearance, * * * while the Property is (or is supposed to be) lodged or deposited within any offices or premises located anywhere, * * other than an armored motor vehicle * * * , for the purpose of transportation.” The trial Court held, and Appellant, with admirable candor, agrees that the criminal activity which occurred here is covered in the above Paragraph (B) even though extortion as such is not named.

Appellant urges that there is no coverage because the crime insured against must have occurred “on premises” or more specifically, “while the Property is (or is supposed to be) lodged or deposited within” the offices of the bank. It argues that the extortionist did not come on the premises and physically remove the property, that, in fact, it was taken from the premises by a bank officer and its loss occurred at a point other than bank premises.

Three cases have been found which deal with this situation, none of which are from this jurisdiction but are persuasive in their holdings. The first is The University Nat. Bank of Fort Collins v. Insurance Co. of North America, No. C-3603 Civil, June 5, 1972 (unreported memorandum decision by Chief Judge Alfred A. Arraj, D.Colo.). There, as here, an extortion scheme was directed against the bank president whose wife and daughter were kidnapped; pursuant to the demands of the extortionist the bank president took a large sum of money from the bank and delivered it to a designated “drop site” from which the money was thereafter taken, presumably by the extortionist. The insurance policy in that case provided for coverage from criminal activity of the same description as our policy while the “Property is (or is supposed to be) lodged or deposited within any offices or premises located anywhere * *.” The insurer denied coverage alleging that the loss took place at the drop site and thus did not occur within the premises. The Court rejected this argument by stating:

“ ‘ * * * We find this argument unpersuasive, because under the agreed facts the thief had effectively asserted control over the funds as of the time that Farnham (the bank president) decided to comply with the instructions. * * * “ ‘ * * * Rather, it seems obvious to us that once having determined the threat was viable and compliance called for, Farnham became an unwilling agent of the thief in effectuating the actual removal. Consequently, we find that the loss occurred at the moment Farnham took possession of the money with the purpose of depriving the bank of it.’ ”

A second case is by the Supreme Court of Minnesota, Northwest Airlines, Inc. v. Globe Indemnity Company, 225 N.W.2d 831 (1975). In that case a plane hijacker was given $200,000.00 by the Airline delivering it to a stewardess who brought it aboard the hijacked plane. In denying a contention that the wrongful taking did not occur “within the premises” as defined in the policy, the Court quoted the above language from the Fort Collins case; it also noted that the policy was in the nature of a blanket or all-risk policy and said that, “mere unforseeability of the manner in which the loss was sustained will not per se constitute grounds for the insurer to deny coverage. * * * ”

Another extortion case, very much in point here, is Bank of Dade v. Fidelity and Deposit Company of Maryland, 483 F.2d 735 (5th Cir.1973). That case is virtually identical to the Fort Collins case quoted from above, and it approved of the rationale of the Fort Collins case in reaching a similar holding. In the case before us, we too follow that rationale and hold that the loss occurred on the premises within the meaning of the insuring bond. As noted by the Supreme Court of Minnesota, the coverage should not be denied because of the manner of the taking from the premises if in fact it was a covered taking. Here, as a result of the extortion, the money was removed from the premises — it was on the premises and went from the premises to the extortionist. Extortion is covered by the policy; and by the very nature of that crime it would not be expected that the extortionist would come on the premises and himself physically remove the money.

The trial Court determined that the conduct of the unknown parties constituted criminal activity directed at the First State Bank. The Appellant urges that the activity was directed at Mr. Dean, and that he acted for his own personal benefit and not for that of the bank in giving up the $40,-000.00 to such unknown persons. The stipulated facts and the inferences drawn from them support the trial Court’s conclusion that the criminal activity was directed at the bank. Mrs. Dean testified that her assailant stated, “This is a bank robbery. We are going down to the bank.”; this was a stipulated fact, and there was further stipulation that the extortionist called Mr. Dean at the bank, initially demanding $100,000.00 in small bills, but reduced the demand to $50,000.00; the inference is that the activity was directed at a bank, an entity which would have such large amounts of money in small bills. Also, the act was perpetrated at a time when the bank was open and while the president was at the bank. Further, the president was given only ten minutes to raise that amount in that form and proceed to a telephone. From those facts, the implications are that the activity was directed at the bank.

The bank is the entity covered by the bond; it is a corporation, bloodless, without emotion, incapable of fear from bodily harm or criminal violence; even as a corporation can act only through its officers and employees, conversely, it can only be the victim of extortion through its officers and employees. The enumerated coverage for robbery, hold-up, and the admitted coverage for extortion, could only occur or intend to occur as regards the human beings involved. We are unable to accept the argument that the bank had no coverage because the human being involved was acting for himself. Either a human being had to be involved or the quoted coverage of the policy means nothing. We fail to see how a bloodless, heartless, corporate entity, a creature of fiction, could be forced to act through an emotion or fear of bodily harm or other criminal violence. Why would an entity incapable of fear, and incapable of suffering bodily harm, enter into a contract for the protection thereof? Such was not the intention of the parties entering into this contract. We hold that the activity was directed at the bank and that there was coverage for the action taken here by the bank’s president. By the very nature of extortion, it could only work on a human being and a human being would have to make the decision. Under such circumstances the trial Court was correct in denying any recovery over against the bank president.

The judgment of the trial Court is affirmed.


author: JAMES, Justice.

text:
    DUNHAM AND ROSS COMPANY, Appellant, v. William O. STEVENS, Appellee.
    No. 5536.
    Court of Civil Appeals of Texas, Waco.
    June 3, 1976.
    Rehearing Denied June 24, 1976.

      Johnson, Bromberg, Leeds & Riggs (Richard L. Jackson), Dallas, for appellant.
    John L. Shook, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is an instructed verdict case. Dun-ham and Ross Co., Plaintiff-Appellant, filed this suit against Defendant-Appellee William O. Stevens, alleging a cause of action based upon a written contract of sale wherein Plaintiff was purchaser and Defendant was seller. Plaintiff sued for the return of $10,000 earnest money placed in escrow in connection with said contract. Defendant Stevens filed a cross-action for the $10,000 earnest money. Trial was had to a jury at the conclusion of which each side filed a motion for instructed verdict. The trial court overruled Plaintiff’s motion, granted Defendant’s motion, entered judgment that Plaintiff take nothing, and awarded Defendant Stevens the $10,000.00 earnest money. From this judgment Plaintiff Dunham and Ross Co., appeals on six points of error. We overrule Plaintiff-Appellant’s points and affirm the trial court’s judgment.

Appellant’s first point is as follows: “The trial court erred in granting the Motion of the Defendant William O. Stevens for Instructed Verdict.” Plaintiff-Appellant presents no point or points asserting that the granting of the motion cannot be justified upon any of the grounds set out in Defendant’s motion. Defendant-Appellee Stevens’s motion for instructed verdict contained sixteen paragraphs setting out several grounds in support of the motion. The trial court’s judgment sustaining Defendant’s motion did not specify any particular point or points upon which the motion was granted, but in effect merely recited that Defendant’s motion was “well taken and should be sustained.” To reverse the judgment of the trial court under these circumstances, it was necessary for Plaintiff-Appellant to assume the appellate burden of establishing that the peremptory instruction cannot be supported on any of the grounds set out in Defendant-Appellee’s motion. McKelvy v. Barber (Tex.1964) 381 S.W.2d 59; Whatley v. K-Mart Discount Stores (Tex.Civ.App. Houston, 1970) 451 S.W.2d 568, NRE; Carrico v. Stop-N-Go Markets of Texas (Tex.Civ.App. San Antonio, 1973) 492 S.W.2d 383, no writ; Gabriel v. Mendez (Tex.Civ.App. San Antonio 1974) 517 S.W.2d 447, NRE. Since the Appellant did not assume its appellate burden of establishing that Appellee’s motion cannot be supported on any of the grounds set out therein, we overrule Appellant’s first point of error.

Be that as it may, this is an appeal from the granting of an instructed verdict, and we must accept as true the evidence in the record supporting Plaintiff-Appellant’s cause of action, disregarding all conflicts and indulging every intendment reasonably deducible from the evidence in favor of Plaintiff-Appellant. Constant v. Howe (Tex.1968) 436 S.W.2d 115; Jones v. Nafco (Tex.1964) 380 S.W.2d. 570. We believe that by examining the record in this light, as we have, that there are no fact issues to be decided by the jury, and that Defendant-Appellee was entitled to judgment as a matter of law, as will be more particularly hereinafter discussed.

Appellant’s second point of error is worded as follows: “The trial court erred in refusing to grant the Motion of Plaintiff Dunham and Ross Co. for Instructed Verdict.” We overrule this point, in view of our holding that Defendant-Appellee is entitled to judgment as a matter of law, for the reasons above stated as well as those hereinafter stated.

On or about November 20, 1972, a contract of sale was entered into by and between Defendant-Appellee Stevens as seller and Plaintiff-Appellant Dunham and Ross Co., Trustee, as purchaser, wherein Stevens agreed to convey 234.122 acres of land in Collin County, Texas to Dunham and Ross, Trustee, for a total consideration of $269,-240.30, payable $65,000.00 in cash, the purchaser’s assumption of a $76,000.00 first lien note executed by one C. D. Wyche and wife payable to Fidelity Union Life Insurance Co. (hereinafter called the “Wyche Note”), and the balance of purchase price to be paid by the execution by Plaintiff-Purchaser of a second lien note in the amount of $128,-240.30. The contract provided that Purchaser Dunham and Ross, Trustee, should put up $10,000.00 earnest money in escrow with Don L. Ratliff, which purchaser did. It is this $10,000.00 earnest money that is in controversy herein. Without quoting the entire contract, suffice it to say that the following are some of the pertinent provisions of the contract which have a bearing upon this suit, to wit:

“Seller agrees to furnish owner’s title policy through Plano Title Company to said property, which shall be conveyed free and clear of any and all encumbrances except those named herein,_”
“If said Title Co. makes objections to the title to said property, Seller shall have 15 days time within which to cure such objections, and if Seller is unable to cure the objections, then the above mentioned ($10,-000.00) deposit shall be returned to Purchaser, and this contract shall thereupon terminate, and all parties be released from liability hereunder.. In the event Purchaser is the defaulting party, Seller shall have the right to retain said cash deposit as full liquidated damages for the breach of this contract.” (emphasis supplied).
“Purchaser agrees, for purposes of this contract, that any restrictions or conditions imposed in any additions or subdivisions of which the herein described property is a part, or easements for utility purposes, shall not be recited as objections to the title or considered as an encumbrance on said property.” (emphasis supplied).
“Purchaser shall have the right to assign this contract of sale and-in the event of such assignment, such assignee shall be substituted in all respects for Purchaser hereunder as though such assignee had originally been the Purchaser hereunder.”
“Closing shall take place at the offices of Plano Title Co., Plano, Texas, not later than January 5, 1973.” (emphasis supplied).
“All mineral rights owned by Seller are to be transferred to Purchaser.”

After the contract had been executed and the earnest money put up, an owner’s title policy binder was issued by Plano Title Co. in connection with the property on December 15, 1972, setting out both printed and typewritten exceptions, more particularly hereinafter discussed. Plaintiff-Appellant offered in evidence a letter from Bill Kramer, vice president of Plano Title Co., to Mr. R. L. Ross, Dunham and Ross Co., dated December 17, 1972, enclosing the Owner’s Title Policy Binder. However, neither the fact of the title binder nor its contents were brought to the attention of Defendant-Ap-pellee Stevens until January 29, 1973, some 24 days after the agreed closing date.

On December 13, 1972, Plaintiff-Appellant Dunham and Ross, Trustee, assigned all their rights under the sale contract to “The Carlton Companies,” which they had a right to do under said contract.

Most of the negotiations in behalf of Dunham and Ross was done by a Mr. Harold Giddens, and most of the negotiations in behalf of Defendant Stevens was done by a Mr. Don Ratliff. Dunham and Ross Co. was a real estate brokerage firm, and as it turned out in the undisputed evidence, “Dunham and Ross, Trustee,” although it was the nominal purchaser, was in truth and in fact acting as an agent or broker for The Carlton Companies, a firm controlled by a Mr. I. C. (“Irv”) Deal.

Don Ratliff, the agent of Stevens, was also a real estate broker, and in fact the sales contract in question provided that a 6% real estate commission would be paid one-half to Dunham and Ross Co. and the other half to Don Ratliff.

As stated, the contract provided that “closing shall take place at the offices of Plano Title Co., Plano, Texas, not later than January 5, 1973.” So about 10:00 A.M. on said date, a meeting was had in the office of Plano Title Co. Mr. Bill Kramer was present representing the title company. Mr. Giddens and Mr. Ross (of Dunham and Ross) appeared in behalf of the purchasers, and Mr. Ratliff and Mr. Stevens appeared in behalf of the seller. Before Ratliff and Stevens arrived at the meeting, Giddens (testified that he) delivered three letters (the contents of which we will discuss later in this opinion) to Kramer, the title man; however, none of these letters were shown to or brought to the attention of seller Stevens or Ratliff at that time. Neither was the title binder shown to Ratliff or Stevens. (The only exception to this was that Giddens showed Ratliff a letter from Dunham and Ross addressed to Ratliff demanding a return of the $10,000.00 earnest money).

The sum and substance of the January 5, 1973, meeting was that Giddens and Ross told Ratliff and Stevens that “Irv Deal does not like the deal, and we are terminating” the contract. Stevens at that time had no knowledge that the purchasers Dunham and Ross had made an assignment of the contract to The Carlton Companies; in fact, he did not even know who Irv Deal was. Ratliff knew who Irv Deal was but did not at that time know that he (Deal) was involved in any way in this transaction. Seller Stevens and his broker, Ratliff, were entirely unaware of the contents of the title binder, or what part The Carlton Companies and Irv Deal played in the matter, or why the Plaintiff-Appellant Dunham and Ross were terminating the contract.

The mystery was cleared up for Stevens and Ratliff about three weeks later in this manner: Stevens testified that on January 29, 1973, he received some mail in an envelope showing it to be sent from Dunham and Ross, containing three letters. The letters and the envelope are in evidence, and the envelope is postmarked January 24, 1973.

The letter of transmittal is dated January 5, 1973, addressed to Stevens and is signed by R. L. Ross Jr., for Dunham and Ross Co., the body of which letter is as follows:

“Please find enclosed a copy of a letter from the Carlton Companies to us terminating the contract of sale and assignment of the above captioned property.

“Therefore, for the reasons mentioned in the Carlton Companies’ letter, we are writing this letter terminating the position of Dunham & Ross Co. in the above captioned contract.” (emphasis supplied).

Now, here is the Carlton Companies’ letter above referred to, which was enclosed to Stevens: Said letter was dated January 4, 1973, was shown to be signed by a vice president of the Carlton Companies and addressed to R. L. Ross and reads as follows:

“Pursuant to the above captioned property on which the Carlton Companies executed an assignment of contract with your firm, dated December 13, 1972, please be advised that due to the fact that there is a 50% mineral reservation which allows the owners of such title to produce minerals, we feel that this instrument unduly jeopardizes our position on the proposed purchase of the property and that it further jeopardizes any financing which we would propose to place on the property at a later date.

“Furthermore, there are several easements affecting the property which in the judgment of our attorneys, make it less usable than originally represented by the Seller. Finally, there is a mortgage lien, which was far broader than originally represented by the Seller that would unduly jeopardize a purchaser taking a position as mortgagor thereof.

“For all the above reasons we hereby specifically terminate our assignment of contract agreement and request a return of the $10,000.00 earnest money as quickly as possible.”

The third letter enclosed is dated January 5,1973, from R. L. Ross Jr., of Dunham and Ross Co. addressed to Don L. Ratliff, Escrow Agent, which reads:

“Please refund the $10,000.00 escrow money to Dunham and Ross Co., 810 Two Turtle Creek Village, Dallas, Texas 75219, so that we may promptly return same to the Carlton Companies.” This is the letter (and the only letter) that Giddens showed Ratliff at the January 5, 1973, meeting at the title company office.

Then on May 23,1973, Stevens received a letter by certified mail from a Dallas law firm demanding return of the $10,000.00 earnest money, asserting that Stevens was unable to close the deal because of the title defects consisting of the 50% mineral reservation, “various easements which would materially restrict the use of the property,” and the “mortgage lien which was broader than originally described in the contract of sale.” (Meanwhile, sometime after the January 5, 1973, meeting at the title company office, Ratliff delivered the $10,000.00 earnest money to Stevens.) This Dallas law firm was shown by the evidence to have originally been the attorneys for the Carlton Companies but who thereafter in this litigation represented Plaintiff-Appellant Dunham and Ross.

In our opinion the Plaintiff-Appellant as purchaser in this contract under the undisputed evidence acted in such a manner as to bring about an anticipatory breach of the contract. It has long been the law in Texas that when one party repudiates the agreement and refuses to be bound by material obligations, the other party may accept such repudiation as final and is not required to further regard the obligations imposed upon him thereby. Pollack v. Pollack (Tex.Com.App.1931) 39 S.W.2d 853, opinion approved by the Supreme Court, plaintiff-in-error’s second motion for rehearing overruled in 46 S.W.2d 292; Wil liams v. Shamrock Oil and Gas Co. (Tex.Com.App. 1936) 128 Tex. 146, 95 S.W.2d 1292, opinion adopted by the Supreme Court; Universal Life and Accident Co. v. Sanders (1937) 129 Tex. 344, 102 S.W.2d 405, opinion adopted by the Supreme Court; Ashton v. Bennett (Waco, 1973) 503 S.W.2d 392, NRE; Miller v. Puritan Fashions Corp. (Waco, 1974) 516 S.W.2d 234, NRE.

Here, Plaintiff-Appellant as purchaser was the defaulting party by the undisputed evidence, and therefore under the terms of the contract Stevens as seller was entitled as a matter of law to the $10,000.00 earnest money as liquidated damages for breach of the contract.

As shown by the letters hereinabove quoted, the three title objections upon which the purchaser predicated his termination of the contract were: (1) the 50% mineral reservation, (2) “several easements affecting the property which in the judgment of our attorneys make it less usable than originally represented by the Seller,” and (3) “a mortgage lien which was far broader than originally represented by the Sell-er_”

The undisputed evidence shows these title objections to be without merit. Here is what the record showed with reference to these objections:

(1)The 50% mineral reservation : There was a first draft of the contract prepared or caused to be prepared by Dunham and Ross which called for the seller to convey all the minerals. This draft of the contract was delivered to Ratliff who took it to Stevens. Stevens refused to sign this draft of the contract for the stated reason that he did not own all of the minerals. Ratliff carried this word back to Dunham and Ross who prepared or caused to be prepared a second draft of the contract which provided: “All mineral rights owned by Seller are to be transferred to Purchaser.” This was the contract that was signed. All parties concerned knew before the contract was signed that Stevens did not own all the minerals, and during the trial Plaintiff-Appellant abandoned this title objection.

(2) The easements: The title binder listed the following easements: “Any easement the existence of which can be ascertained by a visual inspection of the property,” any portion lying within the bounds of a public or private road, four easements to Texas Power and Light Company, one easement to Southwestern Bell Telephone Company, one easement to Collin County Soil Conservation District, and utility lines along the north and south property lines. As hereinabove stated, the contract provided: “Purchaser agrees, for purposes of this contract, that any restrictions or conditions imposed in any additions or subdivisions of which the herein described property is a part, or easements for utility purposes, shall not be recited as objections to the title or considered as an encumbrance on a said property.”

(3) The mortgage lien : This referred to the $76,000.00 Wyche note which was a first lien on the property and which was to be assumed by the purchaser Dunham and Ross. A photostatie copy of the Wyche note was attached to the contract as Exhibit “C”. The deed of trust which described and secured the Wyche note is in evidence, and was shown to have been filed for record on February 4, 1966, long before any facts transpired material to this controversy. Moreover, Ratliff’s deposition was taken by Plaintiff-Appellant prior to trial, attached to which is a copy of the recorded deed from Wyche and wife to Stevens, describing the $76,000.00 Wyche note. Under this state of the record, Plaintiff-Appellant either had actual knowledge of the mortgage lien securing the Wyche note, or else was charged with such knowledge by virtue of the recorded deed and deed of trust.

Plaintiff-Appellant’s points three, four, and five assert the trial court erred in excluding testimony of Harold Giddens concerning whether the title encumbrances affected Plaintiff-Appellant’s decision to refuse to purchase the property, and concerning the advice of Plaintiff-Appellant’s attorneys concerning such matters. We overrule these points, because the record does not show what the excluded evidence would have been. In other words, there is no showing as to what Giddens would have testified to had he been allowed to testify to the excluded matters. See 4 Tex.Jur. (2), Part 2, “Appeal and Error — Civil Cases,” pars. 722, 723, page 101; par. 809, p. 328, par. 810, p. 329.

Plaintiff-Appellant’s sixth and final point asserts the trial court erred in admitting testimony by the Defendant Stevens as to a subsequent sale of the property to a third party. We overrule this point, because Plaintiff-Appellant’s attorney opened up this line of testimony by asking witness Giddens (an employee of and called as a witness by Plaintiff-Appellant) a question about the very same testimony now complained of. The question was asked by Plaintiff-Appellant’s attorney of Giddens: “Do you know what ultimately became of the property involved?” To this Giddens answered: “It was resold, I would say in a year, year and a half ago, perhaps.” Thereafter in the trial, Defendant’s attorney asked Stevens if he still owned the land, to which Stevens said, “No, it has been sold,” and then without objection Stevens testified he sold it on the same title he had at the time of the Dunham and Ross contract. Then when Stevens was asked who he sold it to, Plaintiff-Appellant objected, which objection was overruled. Then Stevens testified he sold it to Hugo Schoelkopf III. Then subsequently on cross examination, Plaintiff-Appellant’s counsel brought out from Stevens that he sold it for substantially more money than the Dunham and Ross contract called for.

Under this state of the record, if there was any error it was harmless because it was invited by Plaintiff-Appellant and thereafter waived by subsequent questioning of Stevens by Plaintiff’s counsel. Rule 434, Texas Rules of Civil Procedure.

All of Plaintiff-Appellant’s points and contentions have been carefully considered, and are overruled as being without merit. Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: DUNAGAN, Chief Justice.

text:
    J. C. COOK et al., Appellants, v. W. L. COOK, Jr., et al., Appellees.
    No. 923.
    Court of Civil Appeals of Texas, Tyler.
    June 3, 1976.

      John S. Ament, Jacksonville, for appellants.
    Jerry L. Calhoon, McDonald & Calhoon, Palestine, for appellees.
   DUNAGAN, Chief Justice.

This appeal involves the title to a portion of a 230.5-acre tract of land located in Anderson County, Texas. Appellants’ claim requires the tracing of funds belonging to one community estate into the purchase of the land in question during a subsequent community.

Appellants, J. C. Cook, James Y. Cook, Amelia Cook Posey, and the heirs of Edgar and Wilmur Cook, some of the children of W. L. Cook, Sr., and Eula Todd Cook, sought to establish a ½ interest in a 230.5-acre tract of land inherited from their mother who died intestate on February 27, 1920. The property was devised by W. L. Cook, Sr., in 1938 to W. L. Cook, Jr., and Edna Mae Broughton, his children by his marriage to Maggie Goodman Cook, and to Mary Mannix, a daughter by his marriage to Eula Todd Cook. W. L. Cook, Jr., and Edna Mae Broughton originally instituted this suit against Mary Mannix for partition of the 230-acre tract; appellants intervened claiming a ½ interest by and through their deceased mother, Eula Todd Cook. The only issue submitted to the jury was whether the intervenors had any interest in this land. The jury answered affirmatively. The appellees’ motion for judgment non obstante veredicto was granted and judgment rendered awarding the land involved to W. L. Cook, Jr., Edna Mae Broughton and Mary Mannix and ordering a partition of the land between them. The judgment further ordered that appellants take nothing by their petition of intervention. Appellants-intervenors have appealed. They contend that there was some evidence to support the jury’s finding. The appellants-intervenors argue that this property, although purchased after the death of their mother, through whom they claim title was purchased with funds of the community estate of Eula Todd Cook, deceased, and as such descended to the appellants through the process of intestate succession.

It is undisputed that W. L. Cook, Sr., and Eula Todd Cook were married on September 8, 1912, and that Eula Todd Cook died February 21, 1920. The 230-aere tract of land in question was purchased by and in the name of W. L. Cook, Sr., on November 3, 1921, which was during his marriage to Maggie Goodman Cook, for the consideration of $50 cash and $2,750 promissory note payable by W. L. Cook, Sr., on January 1, 1922. Thus, at the time this purchase was made, Eula Todd Cook, the mother of appellants-intervenors, was deceased. On June 28,1920, W. L. Cook, Sr., acting individually and as survivor of the community estate of himself and Eula Todd Cook, sold timber (from a different tract of land than that involved in the instant case) belonging to the community for $6,000 in cash and $12,-000 in 2 notes due on January 1, 1921, and January 1,1922. The second and final note set out in the timber deed was due and payable on January 1, 1922, which was the same day that W. L. Cook, Sr., was to pay the promissory note described in the deed, whereby he had acquired the property in question.

Appellants rely on circumstantial evidence to establish their claim. The circumstances relied on by appellants to establish the ultimate fact of whether the property in question was purchased with funds of the community estate of their deceased mother, Eula Todd Cook, are as follows: that W. L. Cook, Sr., was not wealthy during their childhood; that the note for the land was payable by W. L. Cook, Sr., on January 1, 1922; and that one of the notes for the timber was payable to W. L. Cook, Sr., on January 1, 1922, which was the same day that he was to pay the promissory note described in the deed, whereby he had acquired the property in question. Appellees respond that there is no evidence that W. L. Cook, Sr., purchased the 230-acre tract with funds belonging to the estate of Eula Todd Cook rather than with his share of the timber money.

We said in Mobile, Inc. v. Cone, 457 S.W.2d 175 (1970, writ ref’d n. r. e.);

“. . . In regard to the proof of facts by circumstantial evidence, this court has made the following statement:
‘To establish a fact by circumstantial evidence, the circumstances relied on must have probative force sufficient to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative conclusion. The circumstances relied on must be of such a character as to be reasonably satisfactory and convincing. At all events they must not be equally consistent with the nonexistence of the ultimate fact. . . Bledsoe v. Yarborough, 422 S.W.2d 222, 227 (Tex.Civ.App., Tyler, 1967, n. w. h.), and cases therein cited.”

Appellants have the burden to establish their claim against the appellees by legal and competent evidence, i. e., that the funds used to purchase the property in question came from the community estate of Eula Todd Cook, deceased. Mobile, Inc. v. Cone, supra; Arkansas-Louisiana Gas Co. v. Warren, 460 S.W.2d 460, 463 (Tex.Civ.App.—Tyler 1970, n. w. h.).

Evidence that it is possible or probable that the funds that went into the purchase of the land in question came from the community estate of Eula Todd Cook, deceased, came or may have come from said estate cannot be accepted as evidence that the funds did so. It must be proved. Mobile, Inc. v. Cone, supra.

In our opinion, these circumstances present no more than a scintilla of evidence of the fact sought to be established and raised no more than a mere surmise or suspicion that the purchase price of the property in question came from the community estate of Eula Todd Cook. These circumstances can be said to be equally consistent with a conclusion that the purchase price came from the funds of W. L. Cook, Sr. The evidence gives rise to nothing more than equal probabilities or possibilities as to the source of the funds that went into the purchase of the land in question. Mobile, Inc. v. Cone, supra; Arkansas-Louisiana Gas Co. v. Warren, supra; Imperial Casualty & Indemnity Company of Omaha, Nebraska v. Terry, 451 S.W.2d 303, 308 (Tex.Civ.App.—Tyler 1970, n. w. h.).

To sustain appellants’ contention made in this case, it must be presumed (1) that W. L. Cook, Sr., received the monies due under the timber deed on said date or at least prior to paying the note described in his deed to the land in question; (2) that W. L. Cook, Sr., used part of that money to pay the note described in his deed to the land in question; and (3) that he did not use the portion of the money received that was his individually; rather, that he used at least a portion of that belonging to the estate of Eula Todd Cook.

The law is settled in Texas that one presumption cannot be based upon another presumption. Arkansas-Louisiana Gas Co. v. Warren, supra; Imperial Casualty and Indemnity Co. of Omaha, Nebraska v. Terry, supra; Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.). The law does not permit pyramiding of one presumption upon another, even though the original presumption be indulged, because an ultimate fact thus arrived at is too conjectural and speculative to support a judgment. Briones v. Levines Dept. Store, Inc., 446 S.W.2d 7, 10 (Tex.1969).

The competent evidence as shown by the record in this case leaves the claim of appellants a matter of speculation, conjecture and surmise. From what we have said it follows that in our opinion the trial court correctly sustained appellees’ motion for judgment non obstante veredicto.

The judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    B. D. HORTON, d/b/a Embers Club, et al., Appellants, v. Kenneth W. COOK, Administrator, Texas Alcoholic Beverage Commission, et al., Appellees.
    No. 12401.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    Lee Mahoney, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellants.
    John L. Hill, Atty. Gen., R. L. Lattimore, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

Appellants brought this suit under authority of Article 1.05, Taxation-General (Title 122A, V.T.C.S.), to recover taxes paid under protest and as a class action attacking validity of Article 666-20d (Texas Penal Code) which levies a tax on gross receipts of certain permittees from sale of mixed alcoholic beverages.

Trial in district court was without aid of a jury, and the trial court entered judgment that appellants, as plaintiffs below, take nothing by their suit. We will affirm the judgment of the trial court.

Appellants bring three points of error under which they contend in the main that the statute imposing the gross receipts tax is “discriminatory and unconstitutional” and that the “classification for purposes of taxation has no reasonable basis in the nature of the business classified.” Although reference is not made to provisions of the Constitution relied on, it is inferred from argument that appellants attack validity of the statute for claimed failure to meet the requirements of equality and uniformity. (Tex.Const. Art. VIII, secs. 1 & 2).

Appellants and the class they purport to represent are engaged in the business of selling “mixed drinks” containing alcohol. The Legislature was not authorized to enact laws authorizing that business until November of 1970, when the electorate adopted an amendment to the Constitution, which provided: “The Legislature shall have the power to enact a Mixed Beverage Law regulating the sale of mixed alcoholic beverages on a local option election basis.” (Tex. Const. Art. XVI, sec. 20, adopted Nov. 3, 1970).

Thereafter in 1971, the Legislature amended the Texas Liquor Control Act of 1935 to authorize sale of mixed alcoholic beverages and impose on mixed beverage and private club permittees a “tax at the rate of ten percent (10%) ... on the gross receipts of a permittee from the sale, preparation, or service of mixed beverages, or from the sale, preparation, or service of ice or nonalcoholic beverages which are sold, prepared, or served for the purpose of being mixed with alcoholic beverages and consumed on the premises of the permit-tee.”

The factual basis from which appellants make their attack is that under the legislative Act two types of permittees were authorized to sell alcoholic drinks, with one being taxed on gross receipts and the other not taxed on gross receipts. Appellants argue that because Mixed Alcoholic Beverage Permittees, the class in which they operate, are taxed at a rate of ten percent on gross receipts, the tax is discriminatory and unconstitutional, since Wine and Beer Retailer Permittees, who also sell drinks containing alcohol, are not required to pay a gross receipts tax. “The basis for such contention,” appellants say, “is that wine and beer retail permittees sell the same products (ethanol), are not taxed on the gross receipts for sale of such products and there is, therefore, no uniformity or equality among the members of the same class.”

The statute limits sales by “wine and beer” permittees to vinous or malt fermented liquor containing no more than 14 percent alcohol by volume. Purveyors of “mixed drinks” are permitted to sell beverages of unlimited alcoholic content. Appellants argue that since all alcoholic beverages contain the same substance, ethyl alcohol, known chemically as ethanol, both “beer and wine” permittees and “mixed beverage” permittees are selling the same basic substance. Therefore, appellants conclude, “. . any attempt to classify ethyl alcohol (ethanol) from the standpoint of chemical composition would be purely arbitrary since it is all ethyl alcohol which is a classification made for purposes of distinguishing a particular one of the alcohols, to wit: the alcohol used in alcoholic beverages.”

We are unable to find merit in the ground for the attack or the arguments advanced in support of the attack. We do not understand the basis for the two classifications arrived at by the Legislature to be strictly the quantum of alcoholic content, although the line between “wine and beer” purveyors and the unlimited “mixed beverage” operators appears to be at the level of 14 percent of alcohol by volume. The real and most obvious difference we perceive between the two classes is that the “mixed drink” permittees are authorized to sell across the entire spectrum of alcoholic products, from beers and “unfortified” wines, across ports, sherries, apertif, vermouth, and other “fortified” wines, to brandies, rums, vodkas, gins, tequilas, and whiskies; whereas “beer and wine” permittees are limited to sale of beers and “unfortified” wines, none of which may exceed 14 percent in alcoholic content by volume.

Prior to amendment of the Constitution in 1970, and the subsequent action of the Legislature under that authority, the “mixed drink” class did not and could not lawfully exist, although the “beer and wine” class had been in existence, substantially as now, beginning about 1935. The “mixed drink” occupation was created by the Legislature in response to mandate of the people for a new type of business, set up to mix and serve all kinds of alcoholic beverages.

The Supreme Court in 1907 held that upon reasonable grounds merchants, whether wholesalers or retailers, “. . . may be further divided according to the particular classes of business in which they may engage. The considerations upon which such classifications shall be based are primarily within the discretion of the Legislature. The courts, under the provisions relied on, can only interfere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the businesses classified, and that the law operates unequally upon subjects between which there is no real difference to justify the separate treatment of them undertaken by the Legislature. This is the rule in applying both the state and federal Constitutions, and it has been so often stated as to render unnecessary further discussion of it.” (Emphasis added) Texas Co. v. Stephens, 100 Tex. 628, 647, 103 S.W. 481, 485 (1907).

The rule in Stephens was later applied in holding valid the chain store tax, and even though the classification inherently contained “some element of arbitrariness,” the Court said, “To strike down the act we must hold that the Legislature acted arbitrarily or capriciously.” Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896, 903 (Tex.Comm’n App.1937, opinion adopted). “The lines must be drawn somewhere,” the Court concluded, “and the authorities hold that the determination of where to draw them is for the Legislature and not for the courts.” (Emphasis added) (110 S.W.2d 903)

In the Act under consideration the Legislature drew the line between “wine and beer” permittees and “mixed beverage” bars upon the basis of alcoholic content of the beverages sold by each of the two classes. The line thus drawn appears to be at approximately the maximum limit for “beer and wine” purveyors prior to 1971, when the “mixed beverage” classification came into being.

The principal purpose of the Texas Liquor Control Act is to regulate the sale of ethanol, or ethyl alcohol, and to levy taxes in connection with such regulation c‘ the industry. The ethyl alcohol thereby regulated is not raw, unclothed ethyl. Ethyl, in unnumbered spirits, moves about, clothed in various bewitching garments, giving off differing bouquets, and offering an almost unlimited range of fetching tastes. Classifications within the scope of the Act are logical and to be expected.

In classifying the “mixed drink” business, the Legislature reasonably must have visualized the type of operation in which trained bartenders would be able to devise palatable beverages of all kinds, in satisfaction of varying tastes, ranging from Bourbon or Scotch “on the rocks” to Ramos gin fizzes and Margaritas. Bourbon would be spelled “whiskey” and Scotch would be “whisky,” the alcoholic content might be near the same, but to the customer taste would spell the difference. Canadian would be “whisky” and Irish (Bless the Quid Sod!) would be “whiskey” (“uisgebeatha,” water of life), the level of ethanol probably the same, but again taste would dictate the drink ordered, not vapid ethanol alone. Even different brands, being available at this type of business, would determine the drink some customers might order. A man with discriminating taste would ask for “Fitz on the rocks” or “Beefeater Martini, dry,” or his companion, equally discriminating, might ask for “unblended Scotch” or “straight whiskey,” meaning in each instance a whisky, or whiskey, as the case may be, from one still and not a blend of products from a number of stills. Some would prefer blended brands, either Bourbon or Scotch, and find themselves asking for “Walker’s De Luxe” or “J. & B.” The man with an ulcer, wanting to be sociable, might simply whisper to the waiter, “Slip me a Shirley Temple, but cut the garbage.”

It is within our scope and not unseemly for the court to notice that the “mixed beverage” bars and the “beer and wine” establishments, as devised by legislative mandate, are as different as East and West, and “never the twain shall meet.” In “beer and wine” places the customer finds beer and tacos, wine and cheese, with country music, where some patrons may bring their own liquor, clutched in a brown paper bag, and order setups and mixers to create their own “mixed beverages,” without benefit of the bartender’s professional touch. The public, since 1971, has had two general choices to exercise in selecting a public place to drink, and choice is made according to passing taste or particular mood. Each classification has its own atmosphere, decor and music, its own advantages, its separate pleasures, which things alone tend to justify the difference in classification.

Appellants concern themselves with ethanol, common to all alcoholic beverages, without regard to the obvious differences between the two classes of business dispensing alcoholic drinks. The subject of classification in Hurt v. Cooper, supra, was stores selling merchandise, with the tax levied upon “the chain store method of merchandising.” Similarly, in Calvert v. American International Television, Inc., 491 S.W.2d 455 (Tex.Civ.App. Austin 1973, no writ), television stations and theaters were handling the same product, .motion picture films, yet the operations of the two businesses were sufficiently different to justify separate classification. In American Transfer and Storage Co. v. Bullock, 525 S.W.2d 918 (Tex.Civ.App. Austin 1975, writ ref.), the subject of taxation was packing and packaging materials. The difference in the two types of operations lay in part in the time and method of recouping the cost of such materials, used in sales or rendering of services.

The fact that “mixed beverage” bars may also sell beer and wine containing less than 14 percent alcohol is not fatal to validity of the Act. In Hurt it was pointed out that “From the very nature of the act of classification there inheres in it some element of arbitrariness.” In Stephens it was said, “The mere fact that discrimination is made proves nothing against a classification which is not, on its face, an arbitrary, unreasonable, or unreal one.”

Appellants have failed under their burden to demonstrate that the classifications resulting from the Act, as amended in 1971, result in discriminations and unequal treatment sufficient to invalidate the statute. We hold the statute not in violation of the requirements of equality and uniformity under sections 1 and 2, Article VIII, of the Constitution of Texas. This construction upholds the Act and should be applied rather than a construction that might invalidate the statute.

The judgment of the trial court is affirmed.

Affirmed.

      . Appellants are B. D. Horton, doing business as Embers Club of Corpus Christi, Nueces County; George Travis Williams, doing business as Penthouse Cocktail Lounge of Corpus Christi, Nueces County; Flying Tiger, a partnership composed of Alvin Candela and Celia Candela of Galveston, Galveston County; and Henry P. Tilley, Jr., doing business as Caravan Club of Nacogdoches, Nacogdoches County, acting individually and in behalf of the class of taxpayers similarly situated. Appellees, defendants below, are Kenneth W. Cook, Administrator, Texas Alcoholic Beverage Commission; Jesse James, Treasurer of the State of Texas; and John L. Hill, Jr., Attorney General of the State of Texas.


text:
    BRASWELL MOTOR FREIGHT LINES, INC., Appellant, v. Sid TETENS, Individually and d/b/a L. C. Hobbs Construction Company, et al., Appellees.
    No. 12414.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.

      D. James Smith, Dallas, for appellant.
    Malcolm Robinson, Hooper & Robinson, Austin, and Benjamin N. Hamilton, Sheehy, Lovelace & Mayfield, Waco, for appellees.
   O’QUINN, Justice.

Braswell Motor Freight Lines, Inc., a common carrier, brought this suit in March of 1974 against several defendants to recover $3,300 in freight charges plus attorney’s fees. From judgment of district court that Braswell take nothing, appeal has been perfected to this Court.

Appellant has failed to include in its brief any point of error upon which it relies on appeal. Rule 418, Texas Rules of Civil Procedure, plainly provides that the brief for appellant should contain “A statement of the points upon which the appeal is predicated, separately numbered in short form and without argument, and germane to one or more assignments of error when assignments are required.”

A point of error is an indispensible part of a brief on appeal. Johnson-Sampson Construction Co. v. W & W Waterproofing Company, 274 S.W.2d 926, 929-930 (Tex.Civ.App. Amarillo 1953, writ ref. n. r. e.). When appellant’s brief does not embrace any points of error, and no fundamental error appears in the record, the brief presents nothing for the appellate court to review, and the appeal is not entitled to consideration. Cox v. Messer, 469 S.W.2d 611, 613 (Tex.Civ.App. Tyler 1971, no writ); Slayton v. White, 487 S.W.2d 204, 205 (Tex.Civ.App. Tyler 1972, writ ref. n. r. e.).

We have examined the record and find no fundamental error. Upon close examination of appellant’s brief, we find a statement which by liberal construction may be termed suggestion of a single point of error. The statement reads: “Braswell now appeals, contending the court erred in excluding relevant evidence and in granting motion to dismiss at the close of Braswell’s case.” (Emphasis added)

It is true, as stated by appellant, that at the close of Braswell’s evidence, the trial court made a final ruling, which was not to dismiss the cause, but to enter judgment that Braswell take nothing by its suit.

From a careful review of the briefs and the statement of facts, it appears that Braswell’s claim of error is leveled at refusal of the trial court to permit Braswell to introduce into evidence a freight bill without compliance with requisites of Article 3737e, V.A.C.S., pertaining to business records. Braswell failed to lay a proper predicate for introduction of the freight bill. As offered at the trial, the bill was mere hearsay and therefore inadmissible.

Contrary to Braswell’s contention that the trial court refused to admit into evidence the bill of lading pertaining to the cargo shipped through Braswell, we find that Braswell never at any time offered the bill of lading or attempted to lay a predicate for its admission. Without the bill of lading, appellant failed to establish a prima facie case. The bill of lading would have been admissible under Tex.Bus. & Comm. Code Ann. sec. 1.202, but the freight bill, as an entry on the other records, was not shown to have been made upon the basis of personal knowledge as required by Art. 3737e, V.A.C.S. Maurice Pincoff’s Company v. Southern Stevedoring Company, 489 S.W.2d 277, 278 (Tex.Sup. 1972, affirming Tex.Civ.App. 472 S.W.2d 841).

It is settled that a bill of lading is the best evidence of its contents and of the contract of shipment, and in a suit on a bill of lading, as in this case, plaintiff must introduce the bill into evidence or account for its nonproduction. This Braswell failed to perform in any respect. See 9 Tex. Jur.2d Bills of Lading, sec. 54 et seq., p. 446 et seq. (1969).

Appellees have moved to dismiss this appeal. We find no fundamental error and no ground for reversal of the trial court’s judgment, and since appellant failed to bring any point of error, we deem it proper to affirm the judgment of the trial court. Judgment of the trial court that appellant take nothing by its suit is in all things affirmed.

Affirmed.


author: CIRE, Justice.

text:
    AERO SERVICES, INC., Appellant, v. AERO SERVICE CORPORATION, Appellee.
    No. 1336.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 9, 1976.
    Jerry W. Bussell, Engel, Groom, Miglicco & Gibson, Houston, for appellant.

      Ben L. Reynolds, James Patrick Cooney, Royston, Rayzor, Vickery & Williams, Houston, for appellee.
   CIRE, Justice.

This is an appeal from the granting of a temporary injunction. The suit was originally instituted by appellant Aero Services, Inc. seeking to enjoin appellees from conducting business in Texas under the names “Aero Services”, “Aero Service”, “Aero Services Division”, or “Aero Service Division”. Appellee answered by way of counterclaim that it is the owner of the service mark “Aero Service”, registered in the United States Patent and Trademark Office, and of the trademark “Aero”, registered with the Secretary of State of Texas, and has used the name “Aero Service” in Texas since the year 1940. Appellee sought to enjoin appellant from using the symbols “Aero Service” or “Aero Services” in Texas.

After separate hearings on each party’s motion, the trial court granted the temporary injunction prayed for by appellee.

The record reflects that appellee was originally incorporated in 1919 in Delaware as “The Pennsylvania Aero-Service Corporation”, and changed its name in 1920 to “Aero Service Corporation”. In November, 1961 Aero Service Corp. was acquired by Litton Industries, Inc. Under that agreement Litton acquired Aero’s right to the use of the corporate name “Aero”. In June, 1974 Aero Service Corp. was merged with Western Geophysical Co. of America, another subsidiary of Litton Industries. The company headquarters was moved to Houston, where it now conducts business under the name “Aero Service” or “Aero Service Division” of Western Geophysical Company. The company engages in the business of making aerial maps and surveys.

Appellant was issued a certificate of incorporation in Texas on August 1, 1961 under the corporate name “Aero Services, Inc.” and engages in the business of supplying repair parts for jet aircraft. The parties are not in competition with each other.

The record reflects, and the trial court found, that appellee has used the name “Aero Service” in Texas since at least the early 1950’s. Portions of the deposition of Harry Bradley, appellant’s president, were introduced at the hearing in which Mr. Bradley testified that he had had knowledge, “back in the ’50’s” that appellee was operating in Texas under the name “Aero Service”. It is also clear that appellant has used the name “Aero Services, Inc.” in Texas for approximately 14 years.

Appellee offered no proof at the injunction hearings of any harm which has resulted to appellee by virtue of appellant’s use of its corporate name. Appellant offered evidence that there had been some confusion in mail and telephone service, but did not show any harm to appellant other than the resulting inconvenience.

It is clear that appellant used its corporate name for approximately thirteen years before this suit was filed, and that appellee has used the name “Aero Service” for an even longer period. Both parties have built their businesses on the use of their respective names. We feel that appellant’s “actual, peaceable, and non-contested” use of its corporate name for thirteen years could not equitably be interrupted now by a temporary injunction, especially on a showing of such little, if any, harm to either party. Burge v. Dallas Retail Merchants Association, 257 S.W.2d 733, 736-37 (Tex.Civ.App. —Dallas 1953, no writ); see Dallas Plumbing Co. v. Dallas County Plumbing Co., 253 S.W. 308 (Tex.Civ.App. — Dallas 1923, no writ).

The judgment of the trial court is reversed, and judgment is here rendered denying the temporary injunction.

Reversed and rendered.

COULSON, J., dissents.


text:
    COMMISSIONERS COURT OF HARRIS COUNTY, Texas, Appellant, v. PEOPLES NATIONAL UTILITY COMPANY, Appellee.
    No. 1416.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    Joe Resweber, County Atty., Michael R. Davis, Asst. County Atty., Houston, for appellant.
    John L. Hill, Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Austin, David M. Bragg, John S. Teutsch, Asst. Attys. Gen., amicus curiae.
    William A. Olson, Olson & Olson, B. Jeff Bratton, Foster, Bratton, Golden & Kelley, Houston, for appellee.
   CIRE, Justice.

This is an appeal from an order granting a temporary injunction. Appellee Peoples National Utility Company brought suit under the Declaratory Judgments Act, Tex. Rev.Civ.Stat.Ann. art. 2524-1, asking the district court to declare that Tex.Rev.Civ. Stat.Ann. art. 2372q-l is constitutionally invalid or, in the alternative, that the statute is inapplicable to appellee. On the basis of its finding of a reasonable probability that the statute is unconstitutional the trial court granted appellee’s request for a temporary injunction. The injunction prohibits appellant, the Commissioners Court of Harris County, from acting under the statute pending trial on the merits.

The State of Texas, which was not joined as a party in the trial court, has submitted a brief to this court as amicus curiae. The State has called our attention to a particular problem in this case involving the jurisdiction of the trial court to grant the temporary injunction. The State points out that the Declaratory Judgments Act, under which this case was brought, provides that “[i]n any proceeding . if the Statute ... is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.” Tex.Rev.Civ.Stat.Ann. art. 2524-1 § 11.

The Attorney General was not served with a copy of the pleadings, or otherwise given notice of the pendency of this action. The State contends that the trial court was therefore deprived of jurisdiction to proceed.

The question of whether this section of the Declaratory Judgments Act is jurisdictional has apparently not been previously decided in Texas. It is appropriate, however, to look to the decisions in other jurisdictions which have adopted the Uniform Declaratory Judgments Act. Those states which have construed this section of the Act have held that “service of a copy of the proceedings upon the attorney general is not only mandatory, but goes to the jurisdiction of the court to hear the action in the first instance.” McCabe v. City of Milwaukee, 53 Wis.2d 34, 191 N.W.2d 926, 927 (1971) and authorities cited therein; Sullivan v. Murphy, 279 Ala. 202, 183 So.2d 798 (1966); Lakewood Pawnbrokers, Inc. v. City of Lakewood, 182 Colo. 315, 512 P.2d 1241 (1973); Plantation Pipe Line Co. v. City of Bremen, 225 Ga. 607, 170 S.E.2d 398 (Ga.1969). We hold that the requirement in section 11 of the Uniform Declaratory Judgments Act is mandatory, and that failure to notify the Attorney General of the pendency of an action under the Act in which the constitutional validity of a statute, ordinance or franchise is challenged deprives the trial court of jurisdiction to proceed.

We think the fact that this proceeding involved the granting of a temporary injunction, rather than a trial on the merits, does not change the jurisdictional nature of this requirement. The Act requires the Attorney General to be notified “[i]n any proceeding” under the Act in which a statute is alleged unconstitutional. The reasoning behind such a requirement is clear. The challenged statute was duly enacted by the state legislature: the State has a direct interest in the subject matter the the outcome of the case, regardless of whether the relief requested is interlocutory or permanent. See Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 327 (1956).

The State’s interest in this litigation is not altered by the fact that appellee has requested injunctive as well as declaratory relief. Appellee petitioned the court for a declaratory judgment and for injunctive relief based solely upon that declaration. The requested injunctive relief depends entirely upon the determination of the issues raised in the declaratory judgment action. Under these circumstances the jurisdictional requirements of the Declaratory Judgments Act may not be disregarded. See American Federation of Labor v. Mann, 188 S.W.2d 276, 280 (Tex.Civ.App.-Austin 1945, no writ).

There is no showing in the record that the Attorney General of Texas was served with notice of this law suit prior to the hearing on the temporary injunction. We hold, therefore, that the trial court was without jurisdiction to render its judgment. The judgment of the trial court is reversed, and the cause is remanded to the trial court with instructions that unless the Attorney General of Texas is notified of the penden-cy of this suit within a reasonable time, the cause is to be dismissed.

Reversed and remanded.


author: SHANNON, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. AMERICAN STATESMAN, Appellee.
    No. 12407.
    Court of Civil Appeals of Texas, Austin.
    June 9, 1976.
    Rehearing Denied July 7, 1976.

      Bond Davis, Marshall B. Miller, Jr., Gresham, Davis, Gregory, Worthy & Moore, San Antonio, for appellant.
    Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellee.
   SHANNON, Justice.

Appellee, American Statesman, filed suit in the district court of Travis County against appellant, Missouri Pacific Railroad Company, for damages. After trial to a jury, judgment was entered for appellee for $12,000.00. We will affirm that judgment.

In its trial pleading, appellee alleged that on July 12,1972, appellant permitted one of its boxcars to collide with appellee’s overhead scaffolding frame. The frame was attached to appellee’s building and was placed by appellee above appellant’s tracks, allegedly with appellant’s “prior knowledge and permission,” for the purpose of conveying press units away from appellee’s building to a new location. As a result of the collision, appellee claimed damages in the sum of $20,000.00 to its scaffolding and building.

Appellee pleaded that prior to its construction of the scaffolding, the plans and specifications were reviewed by appellant’s agents who recommended that the scaffolding be placed at a height of twenty-two feet from the center of the tracks to the top of any boxcar which might be moved along the tracks adjacent to appellee’s building. Because it was not possible for appellee to place the scaffolding at the recommended height of twenty-two feet without major changes being made to its building, appellee sought approval from appellant to permit the construction of the scaffolding with a clearance of sixteen feet, four inches above the tracks. Appellee pleaded that L. E. Murphy, freight agent for appellant, verbally granted permission for construction at sixteen feet, four inches.

Appellee alleged that appellant and its agents were negligent in several respects. Among other things, appellee pleaded that appellant was negligent:

(a) In advising appellee that if the scaffolding were built sixteen feet four inches, that it would clear any of appellant’s boxcars which would be used on the tracks adjacent to appel-lee’s building.
(b) In moving a boxcar with a height of sixteen feet, ten and seven-eighth inches under the scaffolding with prior knowledge that the scaffolding was only sixteen feet, four inches in height.
(c)In failing to obey a specific order of appellee’s agent not to move the said car at the time of the collision.

By trial amendment, appellee also declared that appellant waived any right to rely upon the violation of Tex.Rev.Civ.Stat. Ann. art. 6559a. That statute requires that all structures built over the tracks of a railroad be placed so as to permit twenty-two feet of clearance.

Appellant pleaded, among other things, that the collision was occasioned by the negligence of appellee (a) in constructing the scaffolding at a height less than twenty-two feet in violation of Art. 6559a, (b) in constructing the scaffolding at an “insufficient height” to permit appellant’s boxcars to pass safely, and (c) in advising appellant’s switching crew that the scaffolding was high enough to permit the boxcar to be moved under the scaffolding.

The court’s charge contained thirteen special issues. In response to those issues the jury answered that appellant or its agent assured appellee that if the scaffolding were built with a clearance of sixteen feet, four inches, it would accommodate any boxcar which appellant would move under the scaffolding. The jury answered additionally that the giving of such assurance by appellant was negligence and that such negligence was a proximate cause of the collision. The jury answered further, in this connection, that appellee relied upon appellant’s assurance in constructing its scaffolding. The jury responded as well that appellant’s moving the boxcar into the scaffolding was negligence and that such negligence was a proximate cause of the collision.

With respect to the special issues inquiring of appellee’s contributory negligence, the jury answered that appellee’s failure to construct the scaffolding with a clearance of twenty-two feet was negligence, but the jury failed to find that the failure to so construct the scaffolding was a proximate cause of the collision.

Finally, the jury answered that appellant waived its right to require appellee to construct the scaffolding with a clearance of twenty-two feet.

Appellant attacks the judgment by seven points of error. The first three points concern the refusal of the district court to submit a cluster of negligence issues, the first of those issues being whether “. before July 12, 1972, plaintiff’s agent or employee advised one or more of the members of defendant’s switching crew that the tram [scaffolding] in question built over defendant’s railroad track was built high enough to permit defendant’s railroad cars to move through and under said structure .” The remaining part of the cluster of requested issues consisted of the negligence and proximate cause issues.

In reply, appellee maintains that there was no evidence in support of the submission of requested issues, and even though there might have been some evidence to support the submission of the issues, the requested issues were not material and not controlling. Appellee called Jack J. Harb-our. Harbour was the “boss of the switching crew” in the area of tracks near appel-lee’s building. In this respect Harbour testified that he had seen the scaffolding work in progress. He was told by persons in the railroad company that there was clearance under the scaffolding for the movement of boxcars. Harbour had switched a number of boxcars under the scaffolding during a period of two or three weeks before the time of the collision.

In response to a question concerning the identity of the person in the railroad organization who had furnished him the information about clearance, Harbour replied:

“No, the first one that told me that it would clear is the fact that when we went under there the first time with a car, the ones that was working on the dock, I complained about it and asked them if they had permission to put it up there, and they said that they did and I said, ‘Well, I will have to talk to somebody else about it,’ and I did; I talked to Mr. Murphy [freight agent for appellant] about it and he was the one that told me that it would clear. He said the engineer said it was all right so that’s all I had to go by.”

Portions of Harbour’s oral deposition were read into evidence. Included in Harb-our’s deposition testimony introduced into evidence was the following:

“Q Did anyone connected with the Statesman ever tell you prior to this accident on July 12 that this structure was high enough to clear cars?
“A Yes. The boy that unloaded out there, they said it would clear and it was okay.”

We do not pass on whether or not there was some evidence so as to require the submission of the requested issues since we are in agreement with appellee that answers to those issues would not be material and controlling. It would be surprising for appellant railroad company to rely upon any advice offered by appellee with respect to clearance requirements for its own boxcars, and we find nothing in the record which suggests that appellant did rely upon any such advice. The course of conduct between appellee and appellant demonstrated that the parties recognized that appellant had control over the clearance of its tracks, and would have to be consulted to approve the construction of the scaffolding. Appellee had no duty or responsibility to furnish any advice to appellant concerning the matter of clearance, and any such advice could not, as a matter of law under this record, be a proximate cause of the collision.

Appellant’s next three points of error also concern the refusal of the district court to submit another cluster of negligence issues. The first of the series of requested issues provided as follows: “Do you find from a preponderance of the evidence that before July 12, 1972, plaintiff or its agent constructed a steel scaffolding or tram over defendant’s railroad track at an insufficient height to permit defendant’s cars to pass under it safely?” The second and third requested issues in this cluster inquired as to negligence and proximate cause.

As written previously, the court submitted a cluster of issues inquiring, in the terms of Art. 6559a, whether or not appel-lee’s failure to construct the scaffolding with a clearance of twenty-two feet was negligence. That submission, we believe, was a submission as to the “insufficiency of the height” of the scaffolding. The district court properly refused appellant’s requested issues inasmuch as the submission of both the common law and the statutory issues would result in an over-emphasis of the same issue. Rampy v. Allstate Insurance Company, 492 S.W.2d 85 (Tex.Civ.App.1973, writ ref’d n. r. e.).

Appellant’s seventh and final point is that the district court erred in overruling appellant’s motion for judgment which urged that appellee’s violation of Art. 6559a established proximate cause as a matter of law.

Appellee urges that appellant has not preserved this contention on appeal. Appellee says that appellant’s appeal is based on its amended motion for new trial. In the amended motion for new trial appellant did not assign, as error, the jury’s refusal to answer that appellee’s failure to construct the scaffolding at a height of twenty-two feet was a proximate cause of the collision. Even more significantly, says appellee, the only possible assertion of that contention in the amended motion for new trial was the ground that, “The Court erred in failing and refusing to grant Defendant’s Motion for Judgment.” Appellee then states, correctly, that under Tex.R.Civ.P. 374, an error cannot be preserved by a motion for new trial reference to a previous motion. J. Weingarten, Inc. v. Moore, 449 S.W.2d 452 (Tex.1970).

Appellee is mistaken in assuming that appellant’s appellate points are limited, in this case, to those asserted in the amended motion for new trial. Appellant’s seventh point of error is based upon the district court’s alleged error in overruling its “Motion for Judgment.” The alleged error of the trial court in overruling appellant’s motion for judgment on the verdict of the jury is not required to be preserved by specifying such error in an assignment in a motion for new trial. Tex.R.Civ.P. 324, State Bar of Texas Appellate Procedure in Texas, § 8.4[3]. Miller v. Miller, 274 S.W.2d 762 (Tex.Civ.App.1954, writ ref’d).

With respect to the merits of appellant’s point of error, we observe that ordinarily the matter of proximate cause is a question for the jury to determine from all the facts and circumstances proved. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951).

In the charge the district court defined proximate cause in the usual language:

“The term ‘proximate cause’ means a cause which, in a natural and continuous sequence produces an event, and without which such event would not have occurred. To be a proximate cause of an event, the cause must be such that a reasonably prudent person, in the exercise of ordinary care, should have reasonably foreseen or anticipated that such event or similar event would follow such cause as a natural and probable consequence in the light of the attending circumstances. There may be more than one proximate cause of an event.”

The foreseeability element of proximate cause is established by proof that the actor as a person of ordinary intelligence and prudence should have anticipated the danger to others created by his negligent act. The rule does not require that the actor anticipate precisely how the injuries would arise from the dangerous situation. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970).

Appellee’s agent met with the appellant’s agent to discuss the height specifications of the scaffolding. Appellant’s agent told appellee’s manager that any railroad car which came down the track would clear the scaffolding placed at sixteen feet, four inches. Under those circumstances, it was a question of fact whether appellee should have reasonably foreseen a collision with the scaffolding placed at that height.

By cross-point appellee claims that the court erred in overruling its motion for judgment non obstante veredicto as to the amount of the damages. The jury answered that $12,000.00 would fairly and reasonably compensate appellee for the reasonable and necessary cost of repairing the damage resulting to its property from the collision. In its motion for judgment non obstante veredicto appellee took the position, in part, that the “undisputed evidence stipulated and agreed to by [appellant], as reasonable and necessary shows that the damages . . . were $19,835.45.”

During the course of the trial the parties entered into a stipulation that “. those witnesses available, who, if called to testify herein, would testify that the architect fees and costs of repair were reasonable and necessary in Austin, Travis County, Texas, in the amounts stated in their bills submitted for services rendered.”

Appellee’s agent testified concerning the costs of repairing the damage done appel-lee’s property as a result of the collision. He identified certain invoices from the construction company and other concerns involved in the repair work, and those invoices were received in evidence without objection. Appellee’s agent testified further that he considered the construction cost “reasonable.” Though appellant has not preserved the point, we observe that there was no specific proof by way of stipulation or testimony that the repairs were necessary to place appellee in substantially the same condition as before the collision.

Appellee’s proof of damages must rest, at least in part, upon the testimony of its agent, an interested witness. For that reason, if for nothing more, we are unable to render judgment, as a matter of law, that appellee was damaged in the sum of $19,-835.45. See Pacific Coast Engineering Co. v. Trinity Construction Co., 467 S.W.2d 635 (Tex.Civ.App.1971), affirmed in part and reversed in part on other grounds, 481 S.W.2d 406 (Tex.1972).

The judgment is affirmed.

Affirmed.


author: BARROW, Chief Justice.

text:
    Bonnie M. WHITE, Administratrix, Appellant, v. Archer PARR, Appellee.
    No. 15565.
    Court of Civil Appeals of Texas, San Antonio.
    June 9, 1976.
    Rehearing Denied July 7, 1976.

      A. J. Pope, Corpus Christi, for appellant.
    Oscar Spitz, Lee Mahoney, Corpus Christi, for appellee.
   BARROW, Chief Justice.

Appellant, Bonnie M. White, Administra-trix of the Estate of Jody Martin Parr, Deceased, has perfected her appeal from an order signed on August 13, 1975, wherein the trial court declared that the judgment signed in said Cause No. 8732 on June 7, 1974, is a final judgment. Although the order of August 13, 1975, is final in that it disposes of all issues in Cause No. 8732, it is conceded that no evidence was heard in connection with the entry of that order, and therefore, the question before us is whether the judgment of June 7, 1974, is a final judgment.

Cause No. 8732 is a part of the complex chain of legal maneuvers which originated with the break-up of the marriage of Archer and Jody Martin Parr. On June 25,1973, Jody Martin Parr filed suit for divorce in the District Court of Nueces County, and on July 3, 1973, Archer Parr filed suit for divorce in the 229th Judicial District Court of Duval County, being Cause No. 8705. This jurisdictional conflict has never been resolved and has resulted in conflicting claims over the property rights of these parties in both counties as well as in the Federal Bankruptcy Court. With the death of Jody Martin Parr on June 13, 1974, the jurisdictional fight has merely shifted from the Domestic Relations Court of Nueces County to the Probate Court of Nueces County. This complex legal and jurisdictional situation has been enhanced by the inability of the court reporters for the 229th District Court or for the Special Judge of said Court to timely prepare the statement of facts.

On August 4, 1973, the First State Bank of San Diego filed an independent suit, being Cause No. 8716, in Duval County, claiming an unpaid debt and seeking the appointment of a receiver over the separate and community property of the couple. The Alamo Lumber Company filed Cause No. 8717 seeking similar relief. On August 28, 1973, Emilio Davila, Esq. was appointed receiver over said community estate. This order was appealed to our Court and was reversed and remanded on February 27, 1974, with instructions to the trial court that the receivership be promptly closed after approval of the accounts of said receiver. See our Cause No. 15278, Parr v. First State Bank of San Diego, 507 S.W.2d 579 (Tex.Civ.App. — San Antonio 1974, no writ).

In the meantime, on September 11, 1973, the receiver filed Cause No. 8732 in Duval County to set aside pendente lite fraudulent conveyances of property by Jody Martin Parr to her sister, Bonnie M. White. Archer Parr intervened in this cause shortly after the judgment in our Cause No. 15278 became final. Cause No. 8732 was set for trial and heard by the 229th Judicial District Court on June 3, 1974, with Hon. Magus F. Smith sitting as Special Judge. Neither Jody Martin Parr nor Bonnie M. White was present, and their motion for continuance was overruled. Judgment was rendered on June 3, 1974, which was signed on June 7, 1974.

It was there ordered that Emilio Davila, Receiver, be dismissed as a party plaintiff and Archer Parr substituted as party plaintiff. It was further ordered that the deeds, transfers, and assignments of certain described community property made by Jody Martin Parr to Bonnie M. White on August 2,1973, be set aside and held for naught. It was ordered that said property be delivered to Werner A. Gohmert, who had theretofore been appointed and qualified as a receiver in the Duval County divorce proceeding. It was ordered that the property be held by such receiver pending final disposition in said Cause No. 8705. The claims to certain other property not specifically disposed of were ordered dismissed without prejudice. All property in controversy in Cause No. 8732 was disposed of by this judgment.

A motion for new trial was timely filed by Jody Martin Parr and Bonnie M. White, but was overruled by operation of law. No appeal was had from this judgment until October 28, 1974, when Bonnie M. White appealed to our Court by writ of error. On February 17, 1975, she filed her motion to dismiss this appeal without prejudice to her right to subsequently urge that the judgment signed on June 7,1974, was not a final judgment. The motion to dismiss Bonnie M. White’s appeal was granted by our Court on February 26, 1975.

A hearing was had in the Duval County divorce proceeding (Cause No. 8705) and a final judgment was entered in this cause on November 7, 1974. An appeal was perfected by William D. Bonilla, Esq. and his law firm, wherein it was asserted that the award for attorney’s fees was inadequate. This judgment was affirmed on April 7, 1976, in our Cause No. 15418.

On April 22, 1975, Judge Smith, on his own motion, entered an order in Cause Nos. 8705, 8716, 8717, and 8732, setting these causes for hearing on August 11, 1975, “for final consideration and determination of all outstanding and undetermined issues, whether upon the merits or matters ancillary thereto.” On August 11, 1975, Judge Smith concluded that the judgment rendered on June 3, 1974, was final and on August 13, 1975, he signed an order which so declared. Appellant, Bonnie M. White, has perfected her appeal from this order.

It is fundamental that to be a “final judgment,” the judgment must dispose of all issues and parties in a case. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1957).

Appellant asserts that the judgment of June 7, 1974, was not a final judgment in that after setting aside the conveyances of certain described community property from Jody Martin Parr to Bonnie M. White, the judgment provides that the property shall be subject to orders of the court in the divorce action (Cause No. 8705) as well as that of the receivership (Cause No. 8716). This contention is without merit. The finality of a judgment that settles all the rights of the parties in controversy is not affected by the fact that further proceedings may be required to carry the judgment into full effect. Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969); Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945 (1960); Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944).

A divorce suit was then pending and the disposition of the community estate was properly before that court. Tex.Family Code Ann. § 3.63 (1975). Accordingly, the community property was subject to orders of the court in the divorce suit irrespective of provisions of the judgment in Cause No. 8732. On the other hand, all matters in controversy in Cause No. 8732 were considered and determined by the judgment. See John F. Buckner & Sons v. Arkansas Fuel Oil Corp., 319 S.W.2d 204 (Tex.Civ.App. — Waco 1958, writ ref’d n. r. e.). We therefore conclude that the judgment of June 7,1974, in Cause No. 8732, disposed of all parties and issues before the court and was a final judgment.

Our next question is what should be our judgment in this matter. It necessarily follows that since no appeal was taken from the final judgment of June 7,1974, the trial court was without authority to enter its order of April 22, 1975, setting this cause for hearing on August 11, 1975. Likewise, the court was without authority to enter the order of August 13,1975. Nothing was properly before the court at that time; accordingly, such orders are a nullity. All that is properly before us at this time is an appeal from the order of August 13, 1975. We do not have either a direct appeal or even a collateral attack on the judgment of June 7, 1974; therefore, we do not consider the jurisdiction of the trial court over the matters there in controversy. We conclude that our judgment should be to reverse and set aside the order of August 13,1975. The costs of this proceeding are taxed against appellee.