author: AKIN, Justice.

text:
    Dan FINCH and wife, Netta Finch, Appellants, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 19435.
    Court of Civil Appeals of Texas, Dallas.
    March 16, 1978.
    Rehearing Denied April 11, 1978.

      John E. Agnew, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellants.
    Wayne Pearson, Burford, Ryburn & Ford, Dallas, for appellee.
   AKIN, Justice.

The principal question presented by this appeal is whether certain services rendered by a wife to her husband are nursing services within the ambit of a compensation settlement in which Texas Employers’ Insurance Association agreed to pay all future medical expenses incurred by the husband. Trial was to a jury which awarded the Finches $1,175.00 for nursing services. The Finches were dissatisfied with this amount and perfected this appeal, asserting that the trial court erred in overruling their motion for discovery of certain memoranda of the Association's expert, in overruling objections to questions concerning these memoranda and that the trial court improperly instructed the jury on the definition of “nursing services.” Additionally, plaintiffs contend that the small amount of the jury’s award was against the weight and preponderance of the evidence. We affirm.

This action arose out of an injury sustained by Finch while in the course of his employment. As a result of his injuries, Finch is now a paraplegic requiring care and treatment. A compromise settlement agreement was entered into whereby appel-lee, Texas Employers’ Insurance Association (TEIA), agreed to pay all future medical and hospital expenses incurred as a result of Mr. Finch’s injury. The' Finches sued to obtain compensation for the nursing care Mrs. Finch provided her husband after TEIA refused to authorize compensation for her services under the settlement agreement. A summary judgment previously granted TEIA was reversed, Finch v. Texas Employers’ Insurance Association, 535 S.W.2d 201 (Tex.Civ.App.—Texarkana 1976, writ ref d n. r. e.) and, on remand, a jury awarded the Finches $25.00 a month for the period of June 8, 1973, to the date of the judgment, a total of $1,175.00 for her services.

The Finches first complain that the trial court erred in overruling their motion for discovery to require TEIA to produce written memoranda of its employee and expert witness, Hope Larabee, and in sustaining objections made by TEIA to questions asked by Finches’ counsel of Larabee inquiring about these memoranda. These notes, though not available at trial, were attached by TEIA to its response to the motion for new trial, and the Finches contend that this information shows that they were prejudiced by the denial of discovery. In support of their contention, they argue that although Larabee was an employee of TEIA when she prepared the notes, when she was called as an expert witness to give her opinion as to Finch’s condition, these memoranda were discoverable citing two recent supreme court decisions, Barker v. Dunham, 551 S.W.2d 41 (Tex.1977) and Lee v. Humphreys, 20 Tex.S.Ct.Jour. 469 (July 23, 1977). Although these memoranda are discoverable under these authorities, our question here is whether the lack of discovery caused the rendition of an improper verdict since the Finches proceeded to trial without such discovery. Tex.R.Civ.Proc.R. 434, Danziger v. Brandes, 457 S.W.2d 146, 150 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.). Kenney v. La Grone, 62 S.W.2d 600, 601 (Tex.Civ.App.—San Antonio 1933), aff’d 127 Tex. 539, 93 S.W.2d 397 (1936). The Finches assert that the denial was harmful in that they were unable to adequately cross-examine Larabee. For example, they point to a comment in her notes that she had suggested that he get a checkup from a physiatrist (one who helps a paraplegic adapt to his condition). They contend that if they had had this information, a new line of questioning could have been developed based upon the theory that his difficulty in adjusting to his paraplegia increased the need for the type of nursing care rendered by his wife. In our view, no harm-is shown because other testimony indicated that Finch had trouble adjusting to his condition. Indeed, the information disclosed in Larabee’s notes is not inconsistent with her testimony at the trial.

Appellants next complain of the trial court’s definition of nursing services accompanying Special Issue No. 2, which inquired into the value of the nursing services rendered by Mrs. Finch. That instruction is:

You are instructed in your consideration of this issue that you are not to take into consideration any services performed by Netta Finch as usual domestic services performed by a wife, but are to only consider the services usually performed by a person engaged in such activity.

Appellants argue that this instruction was a prejudicial comment on the weight of the evidence because it assumed as a fact that a wife’s domestic services cannot be nursing services. We cannot agree. This instruction is in accord with the supreme court decision in Transport Insurance Co. v. Polk, 400 S.W.2d 881 (Tex.1966). In Polk, a wife sued to recover for nursing services she rendered her quadriplegic husband. The insurance company argued that a wife could not recover for nursing services rendered her husband because they are part of the wife’s marital obligation, but it did not object to the issue on the ground that it permitted recovery for the wife’s services which were ordinary marital duties. The court held that a wife could recover for extraordinary services she renders her husband. Implicit in this decision is that a wife cannot recover for those services which a wife normally renders to an able-bodied husband. Consequently, in order to preclude a jury from awarding recovery for services which probably would have been performed even if the husband was not disabled, it is necessary that a jury be instructed that the usual domestic marital services are not compensable as nursing services. The instruction here does not make nursing services and domestic services mutually exclusive but permits the jury to delineate between the two based upon the evidence. Since the Finches were permitted to introduce evidence that all of the services Mrs. Finch performed were nursing services, the trial court’s instruction correctly permitted the jury to determine whether they were extraordinary services rendered because of her husband’s disability, or services that are usually rendered as a part of the marital obligation.

Appellants insist that they were entitled to the instruction submitted in Home Indemnity Co. v. Draper, 504 S.W.2d 570 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.). In that case, nursing care was defined to include all services performed by the wife, as required by the husband’s condition, resulting from his injuries. This definition, however, was not specifically approved by that court, since there was no point on appeal attacking it. Moreover, Draper is distinguishable from our case in that there it was clear that everything the wife did was an extraordinary service because her husband was a quadriplegic requiring continuous attention. Here, a question was presented as to whether all of the things Mrs. Finch did for her husband were necessary. For example, Finch testified that among other things, his wife helped him dress and undress, prepared his meals, gave him his medication, and assisted him with his bath. A nurse called by the Finches testified that these were all nursing services. On the other hand, TEIA’s expert witness, Larabee, testified that Finch could do many of these things by himself. His discharge report from Caruth Rehabilitation Center indicated that he was able to take care of all of his needs from a wheelchair. Even Finch testified that he could do certain things for himself — e. g., dressing — but it took him much longer and when he finished, his clothes were wrinkled. Thus, the jury could conclude that most of the services performed by the wife were not necessary nursing services.

Next, the Finches argue that the trial court committed reversible error in receiving the jury’s verdict and entering judgment on the basis of Special Issue No. 2 which stated:

What do you find from a preponderance of the evidence to be the fair and reasonable cost of necessary nursing services, if any, furnished by Netta Finch to Dan Finch, from June 8, 1973 to date for the injury sustained by Dan Finch on October 17, 1969 . . . answer in dollars, if any, and cents, if any.

The jury answered “$25.00 a month.” Appellants contend that the jury’s answer was non-responsive to the question asked, was not in compliance with the court’s instruction, and was so indefinite that it could serve no basis for a valid judgment. In this respect, they urge that the issue requires an answer of a single figure for the total time period rather than a monthly figure. This contention is untenable because all the trial judge needed to do to render a judgment was to multiply the number of months by $25.00. A verdict is sufficient if all that is required is a mathematical computation to arrive at the total amount of damages. Secrest v. Jones, 30 Tex. 597, 604 (1868); Uselton v. State, 499 S.W.2d 92, 98 (Tex.1973). Appellants recognize this general rule but contend that it has no application where testimony showed that for a month Mrs. Finch was in a hospital and unable to care for her husband and that in some months he required greater care than in others and, consequently, the cost of nursing services would be greater in some months than others. We cannot agree with this contention because the jury’s figure apparently represents an average sum of $25.00 per month. As such, it reflects the testimony at the trial, including that of appellants’ expert, in which monthly figures were used.

There was no evidence that the number of months in which Finch required greater than average care exceeded those in which Mrs. Finch was unable to care for him because of her hospitalization. Indeed, the jury apparently took Finch’s estimate of twenty minutes a day as the time spent by his wife in assisting him and multiplied this figure by $2.50 per hour, the sum appellants’ expert witness used as a value for the hourly rate for such services. (20 minutes X 30 days = 10 hours per month X $2.50 = $25.00.) Although the jury’s answer may not have been in the form contemplated by the issue, the total figure could easily be ascertained by a mathematical calculation. Consequently, no harmful error is shown.

In their final point, the Finches argue that the trial court committed reversible error in entering judgment in that the jury’s answer to Special Issue No. 2 of $25.00 a month for nursing services was against the great weight and preponderance of the evidence. In order for appellants to prevail on this point, they must show that the finding is so against the great weight of the evidence presented at trial so as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952). Upon review, we cannot substitute our judgment for the trier of fact simply because the evidence is conflicting or because we might have arrived at a different result than the jury. Carter v. Carter, 5 Tex. 93, 101-102 (1849); Ryan v. Morgan Spear Associates, 546 S.W.2d 678, 685 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Mendoza v. Varón, 563 S.W.2d 646 (Tex.Civ.App.—Dallas 1978, writ filed). In order to determine whether the jury’s answer is against the great weight of the evidence, we must review that evidence.

Finch is a paraplegic as a result of an industrial accident sustained while working on an oil and gas drilling rig in October of 1969. He is now confined to a wheel chair and cannot walk. After a period of rehabilitation at the Caruth Rehabilitation Center, Finch returned to his home in July of 1970. He testified that he needed aid in dressing and undressing, the preparation of his clothes, taking a bath, fixing meals, changing his external catheter, exercising his legs, taking medication, and getting in and out of his car, all of which his wife did for him. He stated that although he could do some things for himself, it took him longer. He also testified that he could prepare his lunch provided all of the things he needed were placed where he could reach them. He testified that a fair estimate of the time she spent doing things she did not do before his injury was 20 minutes per day. Another witness for appellant, a registered nurse currently employed by the Texas Department of Public Welfare as a nurse consultant, testified that Finch was in need of nursing care and that the level of care required would possibly be a licensed vocational nurse or someone who had a basic understanding of nursing skills. She further testified that a minimum of $1,000.00 or $1,200.00 a month would pay for this nursing care. On cross examination, she admitted that a nurse’s aid could perform these services provided she was trained to take care of the catheter and that the hourly charge for such a person was between $2.50 and $3.00 an hour. As we have already noted, if the figure of $2.50 per hour is applied to Finch’s estimate of 20 minutes per day for his wife’s time in rendering service not required before his injury, the result is $25.00 per month, the exact amount found by the jury.

This estimate is reasonable in view of the testimony concerning Finch’s ability to care for himself. Appellee’s witness, Larabee, a registered nurse employed by TEIA as a rehabilitation nurse, was assigned to Finch in the fall of 1969. It was her job to coordinate all phases of his rehabilitation. Although she spent much time with him while he was at Caruth and visited at his home on several occasions, she had not seen him during the period from June 8, 1973 to the present. She testified that after a period of training at Caruth, Finch was able to transfer from his wheelchair, in and out of a car and a bed. His discharge report from Caruth stated he was able to take care of all of his needs from a wheelchair; get on and off the bed from the wheelchair and transfer from the wheelchair on and off the commode and in and out of the bathtub. From this evidence, the jury could easily arrive at a figure of $25.00 a month as the value of the nursing care performed by Mrs. Finch. Accordingly, we cannot say that the award of $25.00 a month is against the great weight and preponderance of the evidence.

Affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Earl SHANK, Appellant, v. William P. MARTINDALE, Appellee.
    No. 1113.
    Court of Civil Appeals of Texas, Tyler.
    March 30, 1978.

      Emerson Stone, Jr., Stone & Stone, Jacksonville, for appellant.
    Joseph J. Bonney, Bonney, Wade & Stripling, Dallas, for appellee.
   MOORE, Justice.

This is an appeal from an order overruling a plea of privilege.

William P. Martindale, plaintiff, sued defendants, Lewisville Title Company, a corporation domiciled in Dallas County; Bobby Tim Martindale, a resident of Dallas County; Blacklands Production Credit Association (Blacklands), domiciled in Limestone County; and R. G. Beall and Earl Shank, residents of Cherokee County, Texas. Shank filed a plea of privilege seeking to have the cause as to him transferred to Cherokee County, the county of his residence. Plaintiff, William P. Martindale, filed a controverting plea, alleging that venue as to Shank was properly laid in Dallas County under Subdivision 4 of Article 1995, Tex.Rev.Civ.Stat.Ann. The cause was submitted to the trial court upon an agreed statement of facts. After a hearing, the court entered an order overruling Shank’s plea of privilege and he duly perfected this appeal.

We reverse and render.

In essence, plaintiff’s petition shows that this is a suit for damages for breach of contract against Lewisville Title Company and Bobby Tim Martindale for failure to secure a subordination agreement which would have subordinated a vendor’s lien held by Beall and Shank to a vendor’s lien held by Blacklands prior to the closing of a real estate transaction. The petition alleges that the plaintiff and others purchased from Jon Stuart a tract of land situated in Cherokee County for a valuable consideration in the form of cash and notes and that the funds were turned over to defendant, Lewisville Title Company, for proper disbursement. At the time plaintiff purchased the land defendants, Earl Shank and R. G. Beall, held a vendor’s lien note on the land in the amount of $102,792.24. Prior to the closing Jon Stuart executed a general warranty deed to plaintiff and others. The deed recited the execution of a first vendor’s lien note in the amount of $120,500.00 payable to Blacklands and recited the assumption of the $102,792.24 note of Beall and Shank which was subordinated to the Blacklands’ lien and further recited that the Blacklands’ lien was a first lien. The deed also recited the execution of a third lien note payable to the grantor, Jon Stuart, in the amount of $46,921.71. The deed, together with a deed of trust in favor of Blacklands and Stuart, was delivered to Lewisville Title Company prior to the closing. Plaintiff alleged he relied on Lewis-ville Title Company to secure a subordination of the $102,792.24 vendor’s lien note held by Beall and Shank to the vendor’s lien note payable to Blacklands; that Lewisville Title Company took the $120,500.00 advanced to plaintiff by Blacklands and disbursed the funds without obtaining a valid subordination agreement from Beall and Shank; that as a result the lien held by Blacklands became inferior to the lien held by Beall and Shank. Plaintiff alleged further that he relied on Lewisville Title Company to procure the proper documents, to insure title and to insure the validity of the first lien note to Blacklands, and that Lew-isville’s failure to properly close the transaction subjected him to personal liability on Blacklands’ $120,500.00 note.

Plaintiff further alleged that defendant, Bobby Tim Martindale, represented to both him and Lewisville Title Company that he would obtain a subordination agreement from Beall and Shank, and that his failure to do so subjected him to personal liability on the Blacklands’ note as a result of which he suffered damages in the amount of $120,500.00. Plaintiff prayed for damages against both Lewisville Title Company and Bobby Tim Martindale in the amount of the Blacklands’ note of $120,500.00 and the amount of the note held by Beall and Shank in the amount of $102,792.24.

For a cause of action against Shank, the nonresident defendant, plaintiff alleged:

“The Plaintiff seeks against the Defendants Shank and Beall the subordination of their lien securing their $102,-792.24 note to the $120,500.00 note payable to Blacklands, or in the alternative, the Plaintiff seeks an order of this Court directing Lewisville Title Company to pay said lien to said Defendants Shank and Beall so as to effect a first lien position for the note of Blacklands.”

Other than the prayer, the foregoing allegations constitute the only pleadings involving Shank in the transaction. This same position is repeated in the prayer wherein plaintiff prayed:

“. . . for judgment subordinating the lien of Shank and Beall to the note of Blacklands or for payment by said Defendant title company to Shank and Beall of such note payable to them.”

The evidence was submitted upon an agreed statement of facts, the substance of which was as follows: (a) Lewisville Title Company, a named defendant in plaintiff’s original petition, had an office in Dallas County, Texas, on the date that the petition was filed; (b) Bobby Tim Martindale was a resident of Dallas County, Texas, at the time the original petition was brought; (c) the plaintiff has a prima facie cause of action against Lewisville Title Company and Bobby Tim Martindale for the purpose of this venue hearing only, without admitting that he has any right to maintain venue against the defendant Shank; and (d) the defendant Shank is a resident of Cherokee County and was at the time of the filing of the suit and was at the time of the service of citation and filing of the plea of privilege. The parties further stipulated that the court was authorized to take judicial notice of the pleadings in the cause.'

Defendant seeks a reversal on the ground that the record failed to show that venue of the plaintiff’s suit against him was properly laid in Dallas County under subdivision 4 of the venue statute. More specifically, defendant asserts that the petition and controverting affidavit allege neither a joint cause of action against him and the resident defendants nor facts showing that the cause of action against the resident defendants is so intimately connected with the suit alleged against him, the nonresident defendant, that the two might be joined under the rule intended to avoid a multiplicity of suits.

Our venue statute, Article 1995, supra, provides that:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:”

Following this provision the Legislature enumerated various exceptions in which a party could be sued outside the county of his domicile. Our courts have held numerous times that this privilege granted by the above quoted statute constitutes a valuable right.

Subdivision 4 of the venue statute provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. By judicial interpretation our courts have held that in order to come within the provisions of subdivision 4 a. plaintiff must (1) prove that at least one of the defendants resides in the county where the suit is brought; (2) plead and prove a cause of action against the resident defendant; and (3) allege a joint cause of action against the resident defendant and the nonresident defendant, or a cause of action against the resident defendant so intimately connected with the cause of action brought against the nonresident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959); Angelo v. Chemical Bank & Trust Co., 529 S.W.2d 783 (Tex.Civ.App.—Dallas 1975, writ dism’d).

Nowhere does the plaintiff’s petition allege a joint cause of action or that Shank is jointly and severally liable with the resident defendants. Consequently, in order to claim the benefits of subdivision 4, it is essential that the petition allege a cause of action against the resident defendants which is so intimately connected with the cause of action against the nonresident defendant that the two should be joined to prevent a multiplicity of suits.

Although plaintiff is required to plead and prove by independent evidence a cause of action against the resident defendant, he is not required to offer proof of his cause of action against the nonresident defendant. Proof of a cause of action against the nonresident defendant is supplied by the petition itself. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956). Thus, insofar as the nonresident Shank is concerned, proof of venue facts under subdivision 4 depends on the sufficiency of the plaintiff’s pleadings. In order for the plaintiff to maintain venue in a county other than the defendant Shank’s residence, it is essential that the plaintiff’s petition (1) allege a cause of action against Shank and (2)show that the cause against the resident defendants is so intimately connected with the cause of action against Shank that the two should be joined to avoid a multiplicity of suits. In our view the petition fails to satisfy either of the foregoing requirements.

In the first place, we think the petition is insufficient in that it fails to state a cause of action against Shank. It has been held that a cause of action involves the combination of a right on the part of the plaintiff and a violation of such right by the defendant. American Nat. Ins. Co. v. Hicks, 35 S.W.2d 128 (Tex.Com.App.1931); 1 McDonald, Texas Civil Practice sec. 2.02 (1965 edition). The petition alleges only that the plaintiff desires to have Shank’s lien subordinated to that of Blacklands. Nowhere does the petition allege a primary right possessed by the plaintiff or a corresponding duty devolving on Shank, nor does it allege a delict or wrong done by Shank which consisted of a breach of a primary right. In the absence of such allegations, the petition does not supply the necessary proof required under subdivision 4.

Even if the petition, in some manner, could be construed to state a cause of action, we find nothing in the petition to satisfy the additional requirement that the causes of action against the resident defendants and the nonresident defendant be shown to be so intertwined or intimately connected that the two should be joined under the rule intended to avoid a multiplicity of suits. The petition contains no allegation showing that Shank had any connection whatsoever with the real estate transaction between the plaintiff and the resident defendants in Dallas County. The petition contains no basis for making Shank a party to the suit. The petition alleges that after the real estate transaction had been closed, plaintiff discovered that, contrary to his wishes, the lien held by Shank was superior to the lien held by Blacklands and that such predicament was caused by the failure of the resident defendants to secure a subordination agreement from Beall and Shank. Nowhere is it alleged that the lien was invalid or that Shank knew or had anything to do with the real estate transaction. It appears that his only connection with the transaction was the fact that he happened to be part owner of a lien ultimately becoming superior to the lien held by Blacklands. Consequently, even if the petition could be construed as alleging a cause of action against Shank, the petition would still fall short of showing that the suit against the resident defendants is so intimately connected with that against the nonresident defendant that the two should be joined. Therefore, we hold that the plaintiff failed to discharge the burden required by subdivision 4, and as a result defendant Shank is entitled to claim his privilege of being sued in Cherokee County, the county of his residence.

In view of the foregoing conclusion, we do not reach defendant’s contention that the suit must likewise be transferred to Cherokee County on the basis of subdivision 14 requiring that suits for land be tried in the county where the land is situated.

For the reasons stated, the judgment of the trial court is reversed, and judgment is here rendered ordering the suit against defendant, Earl Shank, transferred to the District Court of Cherokee County under the provisions of Rule 89, Tex.R.Civ.P.


author: NYE, Chief Justice.

text:
    W. R. HUBLER, Appellant, v. CITY OF CORPUS CHRISTI, Texas, et al., Appellees.
    No. 1240.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1978.
    Rehearing Denied April 27, 1978.

      Bill Blackburn, Corpus Christi, for appellant.
    Gerald L. Benadum, First Asst. City Atty., Corpus Christi, Michael E. Stork, Asst. Atty. Gen., Austin, for appellees.
   OPINION

NYE, Chief Justice.

This is an inverse condemnation case under the Texas Constitution Article 1, Section 17, brought by plaintiff Hubler (appellant here) against defendants, the City of Corpus Christi (City) and the Texas State Department of Highways and Public Transportation (State). The City and State filed numerous special exceptions to plaintiff Hubler’s pleadings which the trial court granted. Plaintiff, in open court, refused to amend his pleadings to meet the special exceptions sustained by the trial court. The trial court thereafter dismissed plaintiff’s cause with prejudice. Plaintiff Hu-bler perfected his appeal to this Court. The only issues in this appeal concern the sufficiency of plaintiff’s pleadings to allege a cause of action for a “taking”.

In October 1967, plaintiff purchased approximately fifteen and one-half (15½) acres of the “Flour Bluff and Encinal Farm and Garden Tract” located within the city limits of Corpus Christi, Texas. This land is fronted on its southwest boundary by a body of water known as “Cayo del Oso”. Plaintiff’s land includes an area of low elevation through which the surface waters of the area naturally drain into the Oso. Plaintiff’s petition alleged that one and one-half acres of his land were subject to this natural drainage easement.

Plaintiff’s theory of recovery is that the defendants, through their combined municipal drainage and state road construction projects, have in effect “taken” a drainage easement across plaintiff's land in excess of the natural drainage easement without paying plaintiff compensation or instituting condemnation proceedings in violation of Article 1, Section 17 of the Texas Constitution. In support of this theory of recovery the plaintiff alleged in essence: 1) that in 1961 the City promulgated a master drainage plan for the City of Corpus Christi and that in 1966, the City began .to implement this master plan as it relates to his property by constructing drainage structures some three to five miles from his property; 2) that in 1972 the State completed improvements to South Padre Island Drive and that such improvements terminated one to two miles northwest of plaintiff’s property; 3) that his land was subject to a natural drainage easement of one and one half acres; 4) that the defendants’ completed projects had resulted in an intentional and repeated increase in the volume of surface water flowing across his land, which increase exceeded the natural drainage easement; 5) that it is “probable within the foreseeable future the City will complete its essentially unitary project” and the “State will improve South Padre Island Drive down to and past plaintiff’s property”; 6) that the completion of defendants’ future projects will result in a further intentional and repeated increase in the surface water flowing across plaintiff’s land in excess of the natural drainage easement; 7) that the present effects of the excess drainage caused by defendants’ completed projects and the anticipated effects of defendants’ future projects “constitute a present taking of a drainage easement” totaling 4.5 acres less 1.5 acres which is subject to the natural drainage easement; 8) that plaintiff should be compensated $3,900 representing the market value of the easement strip taken valued at the time of trial and $100,000 representing the decrease in market value to the remainder of plaintiff’s land caused by the cost of preventive measures and curative repairs; and 9) that plaintiff should be compensated $30,000 for reasonable attorney, engineering and appraisal fees incurred by the plaintiff.

The defendants, on the other hand, contended they would be liable, if at all, for only a present partial taking as damaging of plaintiff’s property directly caused by defendants’ projects which were completed at the time of trial. Accordingly, the defendants filed numerous special exceptions directed to plaintiff’s allegations concerning the anticipated consequences of defendants’ future plans. In essence, the State’s special exceptions, sustained by the trial court are as follows: 1) that future contemplated projects cannot as a matter of law constitute a present taking; 2) that plaintiff failed to specify the levels at which his land was being overflowed and the description of land allegedly taken incorrectly encompassed the anticipated effects of future projects; 3) that the measure of damages plaintiff sought included the decrease in market value attributable to future contemplated projects; 4) that the correct valuation date for determining the decrease in market value of plaintiff’s land was the date the State completed its project and not the date of trial as plaintiff alleged; and 5) that no State statute authorized plaintiff to recover attorney, engineer or appraisal fees. The City filed special exceptions similar to numbers 1) and 5) above. In addition, the City filed a special exception to each allegation contained in plaintiff’s petition which related to an act done or caused by the City prior to November 21,1972 (two years prior to the date plaintiff filed his original petition), on the basis that the facts so pled, if proved, would constitute only a Constitutional damaging of plaintiff’s property, not a Constitutional taking, and therefore the two-year statute of limitations (Article 5526 Tex.Rev.Civ.Stat.Ann.) would bar a cause of action for damaging that occurred prior to November 21, 1972.

The trial judge sustained all of the above mentioned special exceptions. Accordingly, the paragraphs concerning future projects and the part concerning attorney, engineer and appraisal fees of plaintiff’s petition were stricken and the suit was ordered abated until plaintiff amended his petition to allege specific facts concerning the effects caused by the defendants’ completed projects only. Plaintiff, in open court, declined to amend and the trial judge dismissed the cause with prejudice.

Plaintiff brings forward ten points of error on appeal. The first six points of error attack the action of the trial court in sustaining defendants’ special exceptions directed to plaintiff’s allegations that future but uncompleted drainage project plans constitute a cause of action for a present taking (special exceptions 1-3 above). In point of error seven, the plaintiff asserts that the trial court erred in sustaining the City’s special exception that plaintiff’s claim is, as a matter of law, a claim for damages rather than a partial taking. In points of error eight and nine, the plaintiff attacks the trial court determination that plaintiff had pled the wrong valuation date (the date of trial), and in point of error ten plaintiff asserts that the trial court erred in sustaining the State’s special exception to plaintiff’s claim for reasonable attorney, engineer and appraisal fees. Our determination of the first seven points of error will dispose of the case.

When special exceptions addressed to a pleading are sustained, the party has two options available to him: 1) he may amend to meet the exception, (this he may do as a matter of right); or, 2) he may stand on his pleadings, refuse to amend and test the validity of the trial court’s ruling on appeal. McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex.Civ.App.—Beaumont 1972, writ ref’d n.r.e.); Harold v. Houston Yacht Club, 380 S.W.2d 184, 186 (Tex.Civ. App.—Houston 1964, no writ); M. C. Winters, Inc. v. Lawless, 407 S.W.2d 275, 277 (Tex.Civ.App.—Dallas 1966, writ dism’d); Farris v. Nortex Oil and Gas Corp., 393 S.W.2d 684, 690 (Tex.Civ.App.—Texarkana 1965, writ ref’d n.r.e.). When the effect of the trial court sustaining of the special exception is to dismiss the cause of action, the exceptions have the effect of the old general demurrer, and upon appellate review, the allegations of the plaintiff’s petition must be taken as true. Hazlitt v. Provident Life & Accident Ins. Co.,, 212 S.W.2d 1012 (Tex.Civ.App.—San Antonio 1948), aff’d, 216 S.W.2d 805 (Tex.Sup.1949); Yarborough v. Industrial Accident Board, 538 S.W.2d 19, 21 (Tex.Civ.App.—Austin 1976, writ ref’d n.r.e.); Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n.r.e.); City of Roma v. Starr County, 428 S.W.2d 851 (Tex.Civ.App.—San Antonio 1968, writ ref’d n.r.e.). If we determine that the trial court properly sustained defendants’ special exceptions and that there remained no cause of action stated in the remaining portion of plaintiff’s petition, the trial court properly rendered a final judgment of dismissal. Townsend v. Memorial Medical Center, 529 S.W.2d 264, 267 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.); Rutledge v. Valley Evening Monitor, 289 S.W.2d 952, 953 (Tex.Civ.App.—San Antonio 1956, no writ).

The trial court is clothed with a large degree of discretion in ruling on special exceptions. Its ruling will not be disturbed on appeal in absence of a showing of abuse of discretion. Townsend v. Memorial Medical Center, supra; McKinney v. Flato Brothers, Inc., 397 S.W.2d 525, 529 (Tex.Civ. App.—Corpus Christi 1965, no writ); Jones v. Alvin State Bank, 332 S.W.2d 124 (Tex.Civ.App.—Eastland 1960, no writ); Weiler v. Weiler, 336 S.W.2d 454 (Tex.Civ.App.—Eastland 1960, no writ); Southern Underwriters v. Hodges, 141 S.W.3d 707 (Tex.Civ.App.—Waco 1940, writ ref’d).

We first consider how the courts have defined a “taking” under the Constitution in an inverse condemnation case. Condemnation is the process by which property of a private owner is taken for public use, without consent, but upon the payment of just compensation. Inverse condemnation proceeding is when property has been taken for public use without process or without proper condemnation proceedings and the property owner is attempting to recover compensation therefor. City of Abilene v. Burk Royalty Company, 470 S.W.2d 643, 646 (Tex.Sup.1971); see Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961). A “taking” of land within the concept of Section 17, Article 1, of the State Constitution is an actual physical invasion or an appropriation of the property. McCammon & Lang Lumber Company v. Trinity & Brazos V. Ry. Co., 104 Tex. 8, 133 S.W. 247 (1911); Nueces County Drainage & Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938, 943 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.); Duvall v. City of Dallas, 27 S.W.2d 1105 (Tex.Civ.App.—Dallas 1930, writ ref’d). In certain instances, acts short of actual physical invasion, appropriation or occupation can amount to a compensable taking where governmental agencies conducting public works projects have unreasonably interfered with the land owner’s access to his property or have otherwise imposed restrictions that constitute an unreasonable interference with the land owner’s right to use and enjoy his property. See Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed.2d 322 (1922); DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.Sup.1965); San Antonio River Authority v. Garrett Brothers, 528 S.W.2d 266, 273 (Tex.Civ.App.—San Antonio 1975, writ ref’d n.r.e.); Allen v. City of Corpus Christi, 247 S.W.2d 130 (Tex.Civ.App.—San Antonio 1952); aff’d, 152 Tex. 137, 254 S.W.2d 759 (1953).

Plaintiff has not alleged that the defendants have imposed unreasonable restrictions on plaintiff’s use and enjoyment of his land, nor has plaintiff alleged that defendants have in any way interfered with his right of access to his land. None of the drainage improvements of which plaintiff complains has been constructed on his land. Considering the allegations in plaintiff’s petition as being true, the sole present physical invasion of plaintiff’s land is an alleged intentional increase of surface waters caused by the defendant’s completed projects. Even though no public improvements have been constructed upon plaintiff’s land, plaintiff would have a cause of action for a partial taking if he could show that the defendants’ completed projects directly caused the present increase of surface waters flowing across plaintiff’s property and that such increase of surface waters repeatedly overflowed portions of plaintiff’s land not previously subject to the natural drainage easement, thereby rendering this additional land so overflowed virtually useless to the plaintiff. On the other hand, occasional or intermittent overflows do not constitute a taking. Brazos River Authority v. City of Graham, supra; City of Perryton v. Huston, 454 S.W.2d 435 (Tex.Civ.App.—Eastland 1970, writ ref’d n.r.e.); Tarrant County Water Control and Improvement Dist. No. 1 v. Fowler, 175 S.W.2d 694 (Tex.Civ.App.—Dallas 1943, writ ref’d w.o.m.); 2 Nichols on Eminent Domain, § 6.23[3] (Rev. Ed. 1970).

Plaintiff’s petition does not separately allege facts to support a present partial taking caused by the defendants’ completed projects, but rather, the allegations include the anticipated combined effects of both completed and future projects.

The thrust of plaintiff’s allegations concern the anticipated results of the completion of proposed projects which, at this time, obviously have not contributed to the additional increase in surface waters currently flowing across his land. Plaintiff’s cause of action for an alleged partial taking must be limited to the amount of land actually invaded by surface waters in excess of the natural drainage caused by defendants’ completed projects.

Plaintiff, however, contends in support of his theory of recovery, that the State’s plan to complete Padre Island Drive and the City’s plan to complete the city-wide drainage project in a series of stages or individual projects are, in essence, unitary projects and should be treated as such in considering the effect that the completion of these projects will have on his land. Plaintiff contends that by completing such projects in stages, the defendants are using the “old salami technique” by gradually depriving him of his land without instituting condemnation proceedings or paying just compensation. Plaintiff argues that for any particular short addition or completion of a project in the drainage system, even though it might increase the flow of water across his property, the effect on the market value is immeasurable, but when the totality of the segments of the drainage projects are considered as though they were now completed, the total acreage taken and the diminution of the market value to the remainder of plaintiff’s land is significant. Therefore, plaintiff asserts he should have the right to plead and to prove that the reasonably foreseeable and probable completion of the drainage system by the City and the State are resulting in a present taking of a portion of his land and a diminution in the market value of the remainder.

It is well settled in Texas that future plans which might result in a future taking are merely “future prospects” and, as such, cannot constitute a present taking. See City of Abilene v. Burk Royalty, supra, at 647; Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961); Thurow v. City of Dallas, 499 S.W.2d 347, 348 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.); Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, supra; City of Houston v. Biggers, 380 S.W.2d 700, 704 (Tex.Civ.App.—Houston 1964, writ ref’d n.r.e., cert. denied, 380 U.S. 962, 85 S.Ct. 1105, 14 L.Ed.2d 153 (1964). Even the announcement of a projected public improvement together with preparation of plans and maps showing the property in question within the limits of the project, without any interference with the land owner’s use, does not constitute a present taking. Thurow v. City of Dallas, supra; City of Houston v. Biggers, supra. Plaintiff’s “unitary project” argument is without merit. Plaintiff admits that this case presents a point of first impression to the extent that he seeks compensation for a present diminution in the market value of his property allegedly caused by the prospects that defendants will, in the foreseeable future, implement existing formalized public improvement plans. Plaintiff argues, however, that existing Texas authority supports his theory of recovery. We do not agree.

In an inverse condemnation suit the complainant’s land must be actually taken or damaged within the meaning of the Texas Constitution. A decrease in the market value of lands caused by the prospects of a governmental agency’s future implementation of a public works plan that may or may not require condemnation proceedings when the plan is so implemented does not constitute a present taking. Such a decrease in the market value of land is often referred to as noncompensable consequential damage that is incident to ownership in land. Thurow v. City of Dallas, supra; City of Houston v. Biggers; supra. In this case even assuming that the completion of such projects is so reasonably probable within the foreseeable future that they are having a present impact upon the market value of plaintiff’s land, the diminution in market value is at this time no more than a noncompensable consequential damage.

We have determined that plaintiff’s cause of action, if any, for a partial taking must be confined to the effects on his land caused by the defendants’ completed projects. Where an easement strip has been taken, as plaintiff alleges, the measure of damages is the difference in the market value of the easement strip taken and the remainder before and after the taking. White v. Natural Gas Pipeline Company of America, 444 S.W.2d 298, 301 (Tex.Sup.1969); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). Severance damages to the remainder when a portion of the land has been taken, include all damages, present and prospective that are the natural necessary or reasonable incident of the public improvement. City of Pearland v. Alexander, 483 S.W.2d 244, 246 (Tex.Sup.1972).

Plaintiff, however, has not alleged that the present increase in surface waters upon his land has resulted in the diminution of the market value. Plaintiff admits that the decrease in market value resulting from the current overflows is immeasurable and only if consideration be given to the alleged effects of the completion of the entire drainage project will there be an ascertainable decrease in the market value of the portion of the land allegedly taken by the entire project and the resulting damage to the remainder. Likewise, plaintiff has not alleged that the remainder of his land has in any way been damaged by the completed drainage projects. He admits that the decrease in market value that he presently alleges is due to the cost of cure that will be necessitated only by the completion of the entire drainage plan, both completed and future projects. Evidence of the decrease in market value caused by the prospects of the completion of the entire drainage project is not related to the completed projects, and, as an evidentiary matter, too remote and speculative to be admissible on the issue of the decrease in market value, if any, caused by the completed projects.

We conclude that the trial court properly granted defendants’ special exceptions insofar as they related to the implementation of future plans causing a present taking of plaintiff’s property. The trial court, therefore, correctly sustained defendants’ special exceptions directed to: 1) the total acreage allegedly presently taken; 2) the decrease in market value of the portion of land allegedly taken; and 3) the resulting damages to the remainder because such allegations included the effects of both the completed projects and the future projects.

Plaintiff, in open court, refused to amend his petition to include facts which would show the acreage of the land presently taken by completed projects, the decrease in market value of the land presently taken due to the completed projects, and the decrease in market value to the remainder of his land caused by the completed projects. There remained in his petition no facts to support a present cause of action for an unconstitutional taking. There remained only the bare allegation that the completion of the defendants’ projects had presently resulted in an increase in the flow of surface water in excess of the natural drainage easement, and that this overflow constituted a present taking of an easement strip. Plaintiff’s remaining allegations contained in plaintiff’s petition after the trial court sustained the defendants’ special exceptions were legal conclusions supported by no facts.

Rule 45(b) provides that a legal conclusion may be pled provided the opposing party is not misled thereby. Paxton v. Spencer, 503 S.W.2d 637, 641 (Tex.Civ.App.—Corpus Christi 1973, no writ); Texas Employer’s Insurance Association v. Price, 336 S.W.2d 304 (Tex.Civ.App.—Eastland 1960, no writ); Hankey v. Employers’ Casualty Co., 176 S.W.2d 357 (Tex.Civ.App.—Galveston 1943, no writ). Here, the remaining allegations in plaintiff’s petition are misleading because they do not sufficiently appraise the defendants of the facts upon which plaintiff intends to rely to support any remaining cause of action for a present partial taking based solely on the defendants’ completed projects. We hold that no abuse of discretion has been shown by the trial court’s dismissal with prejudice of plaintiff’s case after plaintiff was given an opportunity to amend his petition and his refusal to amend to allege facts concerning the effects of the defendants’ completed projects. Plaintiff’s points of error one through six are overruled.

In point of error seven, plaintiff complains that the trial court erred in sustaining the City’s special exception to the effect that plaintiff stated a cause of action for a damaging, not a partial taking, and therefore, the two-year statute of limitations applied to plaintiff’s claim.

Since compensation must be paid when property is taken, destroyed or damaged, it has been often said that the distinction between an appropriation and damage without any appropriation is no longer important on the question of liability to pay compensation. Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961); McCammon & Lang Lumber Co. v. Trinity & B. V. Railway Co., 133 S.W.2d 247 (Tex.Sup.1911); Trinity & S. Railway Co. v. Schofield, 72 Tex. 496, 10 S.W. 575 (1889); Ansley v. Tarrant County Water Control and Improvement District No. One, 498 S.W.2d 469 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.). The distinction is important however where questions relating to the appropriate statutes of limitation are involved. In the case of a “taking” of property, plaintiff’s right to maintain a cause of action would not be barred, if ever, until the expiration of the ten-year period necessary to acquire land by adverse possession under Article 5510, Tex.Rev.Civ.Stat. Ann. (1964). However, in the case of a “damaging” of property, plaintiff’s cause of action would be governed by the two-year statute of limitation under Article 5526, Tex.Rev.Civ.Stat.Ann. (1964). Brazos River Authority v. City of Graham, supra; Messer v. County of Refugio, 435 S.W.2d 220 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n.r.e.); Tarrant County Water Control & Improvement District No. 1 v. Reid, 203 S.W.2d 290 (Tex.Civ.App.—Fort Worth 1947, writ ref’d n. r. e.); Tarrant County Water Control and Improvement Dist. No. 1 v. Fowler, 175 S.W.2d 694 (Tex.Civ.App.—Dallas 1943, writ ref’d w.o.m.).

Ordinarily a plea of limitations is a matter of an affirmative defense. See Rule 94, Texas Rules of Civil Procedure. However, when a pleading affirmatively states facts which demonstrate that the suit is barred, an exception may be used to test the pleadings. Mueller v. Banks, 317 S.W.2d 254 (Tex.Civ.App.—San Antonio 1958, no writ); 1 McDonald, Texas Civil Practice, Section 7.19 (1971). It is upon this principle that defendant City contends that plaintiff’s petition states a cause of action for a damaging only, and therefore the trial court correctly ordered all allegations stricken that complained of acts by the City which occurred prior to two years before the filing of plaintiff’s original petition on November 21, 1974.

The distinction between a taking of land and a damaging of land is often largely an evidentiary matter. A single pleading will often be sufficient to state a cause of action for either a taking or a damaging. See Brazos River Authority v. City of Graham, supra; City of Perryton v. Houston, 454 S.W.2d 435 (Tex.Civ.App.—Eastland 1970, writ ref’d n.r.e.). The repetitious nature of the physical invasion and whether the invasion was contemplated or foreseeable at the time the improvements were constructed appear to be major distinguishing factors in a determination of whether there has been a damaging or a taking within the meaning of the Constitution when the actual public works project has not been completed on the land in question but otherwise affects the land. See Brazos River Authority v. City of Graham, compare Tarrant County Water Control and Improvement Dist. No. 1 v. Fowler, supra, with Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.) and Tarrant County Water Control & Improvement Dist. No. 1 v. Reid, 203 S.W.2d 290 (Tex.Civ.App.—Fort Worth 1947, writ ref’d n.r.e.). The Supreme Court in City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex.Sup.1968) has outlined the common law liability for intentionally causing the surface waters to invade the land of another. Liability in this instance depends upon whether the damage to the land was caused by an unreasonable invasion. City of Houston v. Renault, supra at 324-325.

Plaintiff’s allegations demonstrate the following characteristics of a damaging: 1) the public improvements occurred at a distance from the property; 2) no part of the improvements have, or will be, constructed on plaintiff’s property; 3) plaintiff’s property has a natural drainage way across it which carries surface waters from higher properties and which is already subject to natural overflows; 4) the improvements constructed elsewhere by the defendants cause occasional higher overflows from the natural drainage way; 5) the completion of future projects will increase these overflows; 6) the combined effects of both present and future projects will reach only a portion of plaintiff’s property and in the future might require curative action; and 7) finally, the record shows that the plaintiff purchased the property after the first phase of the drainage project had been completed by the defendants. See Nueces County Drainage and Conservation Dist. No. 2 v. Bevly, supra, and authorities cited therein; Tarrant County Water Control & Improvement Dist. No. 1 v. Reid, supra, and authorities cited therein.

A cause of action for a damaging accrues at the time the land is actually damaged. Consequently, a cause of action will not lie for anticipated future damages which have not yet occurred. See e. g., Thurow v. City of Dallas, supra. When only those portions of plaintiff’s allegations relating to the effect of the completed projects is considered, the trial court could have reasonably concluded that plaintiff’s petition alleged only facts supporting a cause of action for a present damaging and anticipated damaging in the füture.

The judgment of the trial court is AFFIRMED.


author: YOUNG, Justice.

text:
    L. V. ELLIOTT, Appellant, v. Burl BOWDEN, Receiver for the First State Bank of Aransas Pass, Texas (In Liquidation), Appellee.
    No. 1228.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1978.
    Rehearing Denied April 27, 1978.
    Terrence W. McDonald, Nicholas & Barrera, Inc., San Antonio, for appellant.
    Shelby A. Jordan, Wood, Burney, Nesbitt & Ryan, Ben A. Donnell, Meredith & Donnell, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a suit on several notes. Burl Bowden, receiver for the First State Bank, Aransas Pass, Texas, appellee, brought suit on six notes against L. V. Elliott, appellant. Elliott answered by general denial and asserted, among other things, affirmative defenses of statute of limitations and estoppel. Elliott also inter-pled the Federal Deposit Insurance Corporation (F.D.I.C.) as a third party defendant. The case was tried to the court without a jury and the court held in favor of Bowden, thereby denying Elliott’s affirmative defenses. Elliott brings this appeal asserting that the court erred in overruling his limitations and estoppel defenses. We sustain Elliott’s contention as to the limitations defense.

On February 5, 1969, Elliott borrowed $2,000 from the First State Bank of Aran-sas Pass, Texas and executed a note therefor which was to be due on February 5, 1970. Thereafter, Elliott executed a series of five additional notes, the first one dated March 29, 1969, and the last July 2, 1969. Each of the five notes was to be due 180 days from the date of borrowing.

On September 2, 1969, the Bank was closed by the State Banking Commissioner and the Bank was placed in the hands of the F.D.I.C. for liquidation. The F.D.I.C. as receiver then transferred the assets of the Bank to the F.D.I.C. in its corporate capacity for purposes of liquidation. Also, in September of 1969, the first of the aforementioned six notes fell due, and by February 5, 1970 all had fallen due. Elliott defaulted on all six notes.

On July 6, 1970, Elliott went to the law office of Ben A. Donnell, attorney for James Duval, liquidator for the F.D.I.C. There Elliott signed a letter, prepared by Donnell, which assigned to the F.D.I.C. Elliott’s right to the repayment of $35,000 owed to him by Louis L. Seiffert, Jr., Trustee (said obligation having been assumed by Hugh Jackson, Trustee), City on the Bay, Inc. and Bayway Associates. Elliott further signed a letter assigning to the F.D. I.C. his interest in the proceeds of the sale of two parcels of land. Finally, Elliott signed a subordinate assignment to his attorney, Anthony Nicholas, who was not present at this meeting. The assignment stated that Nicholas would receive any proceeds due on the loans to Seiffert, et al., over and above the $35,000 assigned to the F.D.I.C. The evidence is conflicting as to whether the F.D.I.C. made any representations to Elliott in return for these assignments.

On July 8, 1970, Duval personally presented the assignment letters to Jackson, who acknowledged their receipt. Though Jackson never specifically stated that he would pay over any funds to the F.D.I.C., Duval contacted Jackson from time to time to see if any funds were available from Jackson’s liquidation of City on the Bay, Inc. and Louis Seiffert, Jr. to pay to the F.D.I.C. pursuant to Elliott’s assignment to them. Jackson never paid F.D.I.C. anything on the assigned indebtedness, nor did F.D.I.C. take any legal action to require Jackson to make any payment.

On April 5, 1972, the F.D.I.C. filed suit against Elliott in Federal Court to collect on the series of six notes heretofore mentioned. Though not appearing in the statement of facts, appellant’s brief states that on February 5, 1974, the federal action was dismissed for want of jurisdiction. Under Rule 419, T.R.C.P., we accept appellant’s statement as correct.

The case before us was filed on February 12, 1974, which date was more than four years after all the dates of default on all six notes previously mentioned. After judgment was rendered for plaintiff, the trial court filed findings of fact and conclusions of law at the request of Elliott. Elliott then requested additional findings and conclusions but his request was denied.

Appellant’s first three points of error allege that the trial court erred in failing to sustain his affirmative defense of statute of limitations since there is no evidence or insufficient evidence to prove that Bowden, appellee, comes within a savings exception to the limitations statute.

This is a suit on indebtedness and, thus, the limitations period is four years after the action accrues. Tex.Rev.Civ.Stat.Ann. art. 5527 § 1 (1958). Elliott submits that this statute bars this suit. Bowden agrees in his brief that limitations applies, but maintains that he comes within an exception to the limitations statute, i. e., Tex.Rev.Civ.Stat. Ann. art. 5539a (1958) which provides:

“When an action shall be dismissed in any way, or a judgment therein shall be set aside or annulled in a direct proceeding, because of a want of jurisdiction of the Trial Court in which such action shall have been filed, and within sixty (60) days after such dismissal or other disposition becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second Court shall not be counted as a part of the period of limitation unless the opposite party shall in abatement show the first filing to have been in intentional disregard of jurisdiction.”

At the outset it would appear that Bow-den does not qualify under this statute in that he is relying on F.D.I.C.’s suit, dismissed for lack of jurisdiction, in order to come within the requirements of Article 5539a. Both parties are in accord, however, and this Court agrees, that if the party bringing the second filed suit pursuant to Article 5539a is in privity with or received its interest by assignment from the party bringing the first filed suit, which was dismissed for lack of jurisdiction, then the second party complies with the requirements of Article 5539a. Leach v. Michigan Realty Co., 97 S.W.2d 331 (Tex.Civ.App.—Fort Worth 1936, writ ref’d); Baker v. Gulf, C. & S. F. Ry. Co., 184 S.W. 257 (Tex.Civ.App.—Austin 1916, no writ).

Bowden had the burden of proving the facts necessary to come within this exception. Watson v. General Motors Corporation, 479 S.W.2d 104 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ). See also Oram v. General American Oil Company of Texas, 503 S.W.2d 607 (Tex.Civ.App.—Eastland 1973), writ ref d n. r. e., 513 S.W.2d 533 (Tex.Sup.1974).

In that regard, Bowden, in order to discharge his burden to prove his privity with the F.D.I.C., offered a purported stipulation in open court:

“MR. JORDAN: [for Bowden, appel-lee] Okay. During the recess, Your Hon- or, Mr. McDonald and I discussed a moment ago that we are able to stipulate as to proof and evidence of the promissory notes up through possession by my client. And I assume that that’s what Mr. McDonald is saying, that we can stipulate that there is no contest to the amount due, the basis for the liability on the notes. Is that correct?
THE COURT: And who is the present holder? Are you stipulating on that?
MR. JORDAN: The Plaintiff in this case. The present holder being Burl Bowden, Receiver for the First State Bank of Aransas Pass, in liquidation. And that the notes are due in the amounts as stated in the pleadings. That interest is due as stated in the notes and as stated in the pleadings. Stop me if I go too far. And that we have proved our connection between the Federal Deposit Insurance Corporation and Burl Bowden as the now holder and owner of the notes, and the party entitled to enforce the promissory notes.
THE COURT: Is this correct, Mr. McDonald?
MR. McDONALD: [for appellant] That’s correct, subject to our affirmative defenses.
THE COURT: Subject to any defenses that you have pleaded.”

At the trial there was no other evidence which showed a relationship between Bow-den and the F.D.I.C. We agree with Elliott that the above stipulation does not provide any evidence of privity. In Fidelity & Casualty Company of New York v. Horton & Horton Custom Works, 462 S.W.2d 613 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n. r. e.) the court there stated: “. the language of a stipulation will not be so construed as to give it effect as an admission of fact obviously intended to be controverted.” The above stipulation only shows the parties agreement as to the amount due on the notes. All other proposed material offered by Mr. Jordan was agreed to “subject to [Elliott’s] affirmative defenses.” Clearly, Elliott did not agree to any facts which prejudiced his affirmative defense of limitations which included the contention that because the two suits were brought by. different parties, the tolling provision of Article 5539a did not control. Thus, there being no facts to show privity between Bowden and the F.D.I.C., Elliott’s affirmative defense of limitations is sustained.

Appellee further contends, though, that Elliott cannot bring this appeal because Elliott did not preserve his right to contend that the findings of fact have no support in the evidence in that no objections were made to the findings of fact in the trial court. Bowden cites Cowling v. Cooligan, 158 Tex. 458, 312 S.W.2d 943 (1958) as his support.

We do not agree. On the contrary, Cowling states:

“[One] may preserve his right to contend on appeal that the findings have no support in the evidence or are contrary to the great weight and preponderance of evidence by including proper points or cross-points of error in his brief in the Court of Civil Appeals.”

See also 4 McDonald, Texas Civil Practice § 16.05 (1971). Bowden’s contention is overruled.

Elliott’s final points (4 and 5) contend that the F.D.I.C.’s failure to collect on the debt assigned to the F.D.I.C. constituted estoppel, and that the trial court’s conclusion that estoppel did not bar plaintiff’s cause of action was error as being against the great weight and preponderance of the evidence or that estoppel was established as a matter of law.

Elliott requested the court to file findings of fact and conclusions of law, but the trial court’s findings contained no findings of fact relevant to the estoppel defense and merely stated in the conclusions of law that “Plaintiff’s cause of action is not barred by estoppel.” Elliott then requested additional findings of fact and conclusions of law, but none of the requested findings of fact were relevant to the elements necessary to establish estoppel.

Elliott’s failure to request additional findings of fact relevant to the estoppel defense effected a waiver thereof. Micrea, Inc. v. Eureka Life Insurance Company of America, 534 S.W.2d 348, 357 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.); Home Indemnity Company v. Muncy, 449 S.W.2d 312, 316 (Tex.Civ.App.—Tyler 1969, n. r. e.); Crown Life Insurance Company v. Reliable Machine and Supply Co., 427 S.W.2d 145,

149 (Tex.Civ.App.—Austin 1968, writ ref’d n. r. e.); McKenzie v. Carte, 385 S.W.2d 520, 529 (Tex.Civ.App.—Corpus Christi 1964, writ ref'd n. r. e.); Pinson v. Dreymala, 320 S.W.2d 152, 156 (Tex.Civ.App.—Houston 1958, writ dism’d), 4 McDonald, Texas Civil Practice § 16.09 (1971).

The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.


author: PER CURIAM.

text:
    Thomas W. COLLIER et ux., Relators, v. CENTRAL NATIONAL BANK et al., Respondents.
    No. 12819.
    Court of Civil Appeals of Texas, Austin.
    March 31, 1978.

      Layne R. Turner, Turner, Read & Williams, San Angelo, for relators.
    William P. Keeling, Jr., Logan, Lewis, Symes & Gilkerson, San Angelo, for respondents.
   PER CURIAM.

This is an original proceeding filed in this Court by relators, Thomas W. Collier and wife, Rhonda F. Collier, to enjoin Central National Bank of San Angelo, Texas, and Paul L. Hoglund, trustee, from selling certain property under the power of a deed of trust, pending the disposition by this Court of the merits of the appeal. The appeal is by relators from the order of the district court of Tom Green County refusing to grant a temporary injunction enjoining the bank and the trustee from selling the property described in the deed of trust. Rela-tors perfected with appeal by filing their cost bond on March 17, 1978 with the district clerk of Tom Green County.

It is shown in the petition for injunction filed in this Court that the property which is the subject of the litigation is scheduled to be sold on April 4,1978. We are asked to enjoin the bank and the trustee from selling the property pending the disposition of the appeal by this Court on its merits in order to protect the jurisdiction of this Court.

A court of civil appeals may issue necessary writs to protect its jurisdiction by preserving the subject matter of the appeal pending a hearing on the appeal. Tex.Rev. Civ.Stat.Ann. art. 1823 (1964); Dawson v. First National Bank of Troup, 417 S.W.2d 652 (Tex.Civ.App.1967, no writ).

The petition for injunction will be granted. In order to protect our jurisdiction and preserve the subject matter of the litigation pending appeal from the order of the district court, the bank and the trustee are enjoined from proceeding with the sale of the property being the subject of the litigation and posted for sale for April 4, 1978, until final disposition of the case on appeal.

No bond is required of relators as a condition to the issuance of this injunction, as it is issued under the authority of art. 1823 for the purpose of protecting the jurisdiction of this Court. Nelson v. Blanco Independent School District, 386 S.W.2d 636 (Tex.Civ.App.1965, no writ).

Nothing done hereby or written herein should be construed as an expression of opinion by this Court upon the merits of the appeal.


author: DODSON, Justice.

text:
    Dennis Martin HARTLEY, Appellant, v. Gene SCHWAB, Appellee.
    No. 8878.
    Court of Civil Appeals of Texas, Amarillo.
    April 3, 1978.
    Rehearing Denied May 1, 1978.

      Garner, Vickers & Purdom, Thomas J. Purdom, Lubbock, for appellant.
    Splawn Law Offices, Inc., Johnny Splawn, Lubbock, for appellee.
   DODSON, Justice.

This is an action for damages to an automobile. Gene Schwab, plaintiff-appellee, brought suit against Dennis Martin Hart-ley, defendant-appellant, for damages sustained to his automobile resulting from a collision with Hartley’s automobile. The non-jury trial resulted in a judgment in favor of Schwab in the amount of $1,558.25, including the sum of $1,087.25 for cost of repairs, $421 for loss of use of the automobile, and $50 for towing and storage costs. Hartley appeals the judgment to this court. Reformed, and as reformed, affirmed.

The accident and resulting damages to Schwab’s 1965 Plymouth Valiant automobile occurred on October 2, 1976. The stipulated facts show that the reasonable market value of the automobile immediately before the accident was $525 and its reasonable market value immediately after the accident was $75, with a resulting depreciated value of $450. The parties’ stipulations also show that the reasonable and necessary costs of repairs for the automobile would be $1,087.25, and that as of March 10,1977, the automobile had not been repaired. There is no showing, stipulation or finding that the automobile had peculiar or intrinsic value to Schwab.

On appeal Hartley contends the trial court erroneously entered judgment for Schwab in the amount of $1,087.25 for cost of repairs, $421 for loss of use of his automobile, and $50 towing and storage costs, rather than its depreciated value. Schwab maintains that his automobile was susceptible of repairs, and therefore he was entitled to elect to recover the cost of repairs and loss of its use. Hartley counters that the alleged election arises only when it is economically feasible to repair the automobile.

In support of his position, Schwab relies on principles stated in Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950); Merrill v. Tropoli, 414 S.W.2d 474 (Tex.Civ.App.—Waco 1967, no writ); and Carson v. Bryan, 532 S.W.2d 711 (Tex.Civ.App.—Amarillo 1976, no writ). Hartley also relies on Pasadena and statements and comments from the Restatement of the Law of Torts.

We do not consider Merrill and Carson controlling here because neither case presented the question of economic feasibility of repairs to a chattel.

Schwab quotes from Pasadena at 128 as follows:

In cases where the damaged personal property is susceptible of repairs the owner of the injured property may recover the reasonable costs of such replacements and repairs as are necessary to restore the damaged article to its condition immediately prior to the accident, (emphasis added)

However, Hartley points out that this statement must be construed in light of the principles derived from the Restatement of the Law of Torts, which are quoted with approval in Pasadena. As stated in Pasadena at 129:

“Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
“(a) the difference between the value of the chattel before the harm and the value after the harm or, at the plaintiffs election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs, and
“(b) the loss of use. * * * ”
One can (the owner) “recover only the difference in its value before and after the harm, except that if, after the harm, it appears to be economical to repair the chattel, he can elect to recover the cost of repairs, together with the value of the loss of use during the repairs, or other losses which may have resulted during such time.” (emphasis added)

These principles qualify the election rule by requiring that repairs be economically feasible.

In this case, the evidence shows conclusively that a prudent owner would not deem it economically feasible to repair the automobile. Thus, we conclude that Mr. Schwab has no election to recover the costs of repairs, loss of use and storage costs. However, he is entitled to recover the depreciated value of his automobile. The essential facts to calculate this amount are stipulated by the parties.

Accordingly, the judgment of the trial court is reformed to decree that Gene Schwab does have and recover of and from Dennis Martin Hartley the sum of Four Hundred Fifty and no/100 ($450.00) dollars, with interest thereon at the rate of nine percent (9%) per annum from April 14, 1977, until paid. As reformed, the judgment is affirmed. The costs of appeal are adjudged one-third to Hartley and two-thirds to Schwab.

      . Restatement (Second) of Torts § 928 (Tent. Draft No. 19, 1973) is in accord with these principles.


author: MASSEY, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Guadalupe FLORES et al., Appellees.
    No. 17978.
    Court of Civil Appeals of Texas, Fort Worth.
    April 6, 1978.
    Rehearing Denied April 27, 1978.

      Brown, Herman, Scott, Dean & Miles and Grant Liser, Port Worth, for appellant.
    Doyle H. Willis, Fort Worth, for appel-lees.
   OPINION

MASSEY, Chief Justice.

After vigorously contesting the claim of Guadalupe Flores and two of her ten children for death benefits under the Texas Workmen’s Compensation Act, Texas Employers’ Insurance Association did finally, after suit pendency for approximately one and one-half years, agree for judgment to be rendered against it for full benefits as provided by law.

In the judgment entered by the trial court there was provision that Texas Employers’ should pay, by one lump sum payment, the 25% attorney’s fee on unaccrued compensation benefits awarded claimants’ attorney. The whole of the unaccrued weekly compensation benefits was calculable as having a present value of $58,582.16 by a certain table relative to pensions. The lump sum amount provided by judgment to be paid the attorney was $14,645.54.

From that part of the judgment which awarded attorney Willis this attorney’s fee in a lump sum, Texas Employers’ appealed.

We affirm.

In the Findings of Fact filed by the trial court appears the following:

“(b) The Court takes judicial knowledge of the tables and formulae certified correct by the Industrial Accident Board of Texas in its manual dated the 1st day of August, 1973, for use in the years 1974-1975, and of Widow’s Pension Table based on the 1960 U. S. Life Tables for White Females and U. S. Employees'-used' to calculate compensation with the expectancy of death and remarriage, and of the life expectancy of Guadalupe Flores and her children. Based thereon the Court finds that there is a present value and sum certain of $58,582.16 that can be placed on claimants’ case after proper discounts.”

Texas Employers’ complaints are that Art. 8306, Secs. 7d and 8, Texas Workmen’s Compensation Act, does not authorize such an award, but only authorizes an attorney’s fee — i. e., one applicable to the instant “death case” — in the amount actually recovered and as of times it is recovered — and not to exceed 25% of the amount recovered; that under the posture of the case the allowance of attorney’s fees in a lump sum constituted an abuse of discretion.

The crux of Texas Employers’ argument stems from the fact of the amendment of Sec. 7d by Acts 1969, 61st Leg., p. 48, ch. 18, § 7, effective May 18, 1969, and from the fact of the amendment of Sec. 8 by Acts 1973, 63rd Leg., p. 188, ch. 88, § 4, effective September 1, 1973.

Until September 1,1973 there was a limitation, by virtue of limitation pay period, upon the amount of compensation to be paid for “death benefits”. The period was 360 weeks from date of the injury. After September 1, 1973, as applied to cases thereafter arising, there was not such a limitation. Since 1973 the provision is that in the event of the termination of eligibility of any child to receive benefits his (or their) benefits were to be added to those being paid to the surviving spouse entitled to receive benefits; and that as applied to a spouse of the deceased his or her benefits were to be continued until death or remarriage, with proviso that in the event of a remarriage there would be entitlement to a lump sum payment equal in amount to the benefits due for a period of two (2) years (with no subsequent entitlement to benefits). It is the law since 1973 with which we are concerned. The cause of action began with date of injury on December 11, 1974.

It is .the contention of Texas Employers’ that the provisions for payment as applied to the widow of the deceased has an “open end”; that its liability cannot be ascertained, even by actuary tables; that it is possible that Mrs. Flores may shortly become deceased so that if the entitlement of her attorney be not continued to be based upon her continued existence it might be that a present payment of attorney’s fees might be many times the amount of compensation she would have received or ever become entitled to receive. The same would apply in the event of her remarriage — especially should it occur promptly after the weekly payments were begun.

By reason of the foregoing, says Texas Employers’ to allow her attorney his fees in a lump sum would be to compel it to pay such attorney when under the law it is the obligation of the client to pay them out of her recovery.

The argument is quite rational. Were the case controlled by Alabama law there would be probability that Texas Employers’ should prevail. See Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803, 806 (1921) where in a case having analogy the court wrote: “These words do not authorize the judge to make the employer, in effect, an insurer against the death or remarriage of a dependent widow before the maturity of the last payment, or the death or termination of the dependency of the child before the maturity of said last payments, and which would be the result by requiring the employer to pay these fees in advance and look to the last periodical payments for reimbursement.” Noticed is that at time the opinion was written there was a limitation of 300 weeks as applied to the period for which compensation might be payable, though save for such provision the liability did have an “open end”.

Prior to the 1973 amendment of Art. 8306, Sec. 8, “Death Benefit,” the problem would not exist. Before then, when the insurer’s obligation was by judgment of a court the 360-week provision for payment of death benefits would have been a legal obligation of the insurance company to her estate should Mrs. Flores’ personal entitlement be cut short by her death. By the amendment the same apparently is no longer true.

There was attack below upon the propriety of the use made of actuary tables introduced before the trial court to arrive at the time period involved and appropriate calculation therefrom. We observe no similar complaint on appeal. There would not be error anyway. 23 Tex.Jur.2d, p. 465, “Evidence” § 323, “Mortality tables.” To become fascinated therewith would divert from the real question which is: May the law sanction payment by first party to a third party of a contingent obligation of the second party, when the obligation of the second party to make the payment might never occur?

Since effective September 1,1973, date of the amendment to Art. 8306, Sec. 8 there has been only one case dealing with the question. It was Liberty Mutual Insurance Company v. Ramos, 543 S.W.2d 392 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). There was a death case in which the El Paso Court of Civil Appeals held “there was no abuse of discretion” in the trial court’s allowance of lump sum attorney’s fees though claimant entitled to death benefits would receive weekly' payments in their retirement. The date of fatal injury to claimant’s decedent in Ramos was April 11, 1974.

Prior to the El Paso court’s opinion in Ramos, supra, there was approval in allowance to claimant’s attorney of lump sum though claimant’s entitlement was by weekly payments in a case of specific injury under the Workmen’s Compensation Act, Texas Indemnity Ins. Co. v. Bush, 163 S.W.2d 224 (Tex.Civ.App.—Amarillo 1942, writ ref’d); and the same holding in a permanent total disability case in Texas Employers’ Insurance Association v. Motley, 483 S.W.2d 709 (Tex.Civ.App.—Austin 1972, with writ granted and holding approved at 491 S.W.2d 395). In such case the Supreme Court wrote (p. 396) as follows:

“On the other hand, if the compensation is based upon a judgment in court, which judgment has either become final or is affirmed, the amount awarded by the court does survive the workman’s death and is not subject to modification or reduction (by the court). . . . The attorney’s fees, therefore, may be fixed or approved with certainty by the trial court in the light of the amount which will be recovered by the workman or those claiming under him.”

It also wrote further (p. 397):

“Since the Legislature has not restricted the trial court in the handling of attorney’s fees as it did the Industrial Accident Board, we hold that the trial court had the power and the discretion to order a lump sum payment by the insurance company of the attorney’s fees.”

A case following the law as pronounced in Motley, supra, was Texas Employers’ Insurance Association v. Garces, 492 S.W.2d 723 (Tex.Civ.App.—San Antonio 1973, no writ).

Rationale of all the cases seemingly stem from the observation in Bush, supra, that where there the allowance of a lump sum as the attorney’s fee has neither increased the liability of the insurance company or the recovery against it, it is not entitled to complain.

We do not believe that there was any abuse if indeed the trial court had the discretion to rule as it did in the instant case. The Supreme Court not having found error in Ramos, supra, where the holding of the El Paso Court of Civil Appeals was that there was no reversible error in allowing the lump sum to the attorney for claimant in a death case under the Texas Workmen’s Compensation Law we have concluded that it is proper to overrule all of the Texas Employers’ points of error.

The judgment is affirmed.


author: SHANNON, Justice.

text:
    Allen R. HOWZE et ux., Appellants, v. SURETY CORPORATION OF AMERICA, Appellee.
    No. 12697.
    Court of Civil Appeals of Texas, Austin.
    April 12, 1978.
    Rehearing Denied May 3, 1978.

      Thomas D. McDowell, Howard & McDowell, Corpus Christi, for appellants.
    William L. Ehrle, Austin, for appellee.
   SHANNON, Justice.

This appeal concerns coverage vel non of a “Mobile Home Dealer Bond” written pursuant to Tex.Rev.Civ.Stat.Ann. art. 5221f (Supp.1978), the Texas Mobile Homes Standards Act, hereafter usually referred to as the “Mobile Homes Standards Act.”

Appellee, Surety Corporation of America, filed a declaratory judgment suit in the district court of Travis County. Appellee sought a determination that by the terms of its bond, it was not bound to pay a judgment obtained by appellants, Allen R. Howze and wife, Sue Howze, against appel-lee’s principal. Appellants answered and filed a counterclaim predicated upon the judgment. After trial to the court, a take-nothing judgment was entered as to appellants’ counterclaim. Further, the judgment declared that the surety company was not liable to appellants. We will affirm the judgment.

In February, 1976, appellants purchased a mobile home from R. L. Greer, doing business as Mobile Market Homes. As a down payment on the new mobile home, appellants “traded-in” their old mobile home. The old mobile home was encumbered with indebtedness. As part of the trade Greer agreed to assume that indebtedness. Contrary to his representation, Greer did not assume the indebtedness against the “trade-in” mobile home, and, in time, the lienholder made demand of appellants for payment in full.

Appellants sued Greer in the district court of Nueces County. The basis for suit was that Greer committed a “deceptive trade practice” by falsely representing that he would assume the outstanding indebtedness against the “trade-in” mobile home. Tex.Bus. & Com.Code Ann. § 17.46(b)(12) (Supp.1978). Appellants did not allege that Greer had violated any section of the Texas Mobile Homes Standards Act.

At the time of the representation by Greer to appellants, and as required by art. 5221f, Greer had in effect a “Mobile Home Dealer Bond.” Appellee was surety and Greer was principal on the bond. Appellants did not make the surety company a party in their suit against Greer.

Greer made no appearance, and on June 25, 1976, the district court of Nueces County entered a default judgment against Greer in the sum of $42,126. In the judgment the court recited the following findings and conclusions:

“(1) That Plaintiffs are consumers as defined in Section 17.45(4), Texas Business and Commerce Code, Deceptive Trade Practices-Consumer Protection Act and Art. 5221f. Section 3(g), Texas Mobile Homes Standards Act.
“(2) That Defendant, R. L. Greer d/b/a Mobile Market Homes was and is a Dealer as defined in Art. 5221f, Texas Mobile Homes Standards Act, at all times pertinent to Plaintiffs’ cause of action;
“(3) That Plaintiffs’ cause of action is connected with the sale of a mobile home;
“(4) That Plaintiffs have been adversely affected and sustained actual damages in the amount of Thirteen Thousand Five Hundred Forty-two and 13/100 Dollars ($13,542.13); and
“(5) That Plaintiffs are entitled to three (3) times the amount of their actual damages and attorney’s fees as provided by Section 17.50, Texas Business and Commerce Code.”

Five days after the entry of the default judgment, appellants obtained a writ of execution, and on the day following, the deputy sheriff returned the writ unsatisfied. One day after the default judgment became final, appellants made demand upon the surety for payment of the judgment for the face amount of the bond, $25,000. The surety company refused to pay appellants and then filed the declaratory judgment suit.

The surety alleged that it was not bound by the default judgment. The surety also pleaded that it was not liable under the bond because Greer did not violate any applicable provision of the Texas Mobile Homes Standards Act. Appellants joined issue by its response that the surety was collaterally estopped to obtain declaratory relief. In addition, appellants alleged in their counterclaim that by the terms of the Texas Mobile Homes Standards Act, the surety was liable to them for the face amount of the bond. By the entry of the take-nothing judgment, the district court necessarily resolved both issues in the surety’s favor.

The obligation of the surety is determined by the terms of the bond. The applicable part of the surety bond is hereafter set out:

“. . . are firmly bound unto THE STATE OF TEXAS in the sum of $25.-000.00 dollars payable at Austin, Travis County, Texas, for the use by a consumer, the State, or any political subdivision thereof who establishes liability against a dealer for damages, penalties, or expenses, including reasonable attorney’s fees, resulting from a cause of action connected with the sale or lease of a mobile home, and for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, successors and assigns, jointly and severally, firmly by these presents.”
“NOW, THEREFORE, the CONDITION OF THIS OBLIGATION is such that the PRINCIPAL shall faithfully discharge all obligations, duties and responsibilities under Sections 4, 5, 6, 7, and paragraph (b) of Section 8, and all other applicable sections of Article 5221f, VACS, and all amendments thereto, and all applicable rules and regulations of the Commissioner of the Texas Department of Labor and Standards adopted to carry out the provisions of Article 5221f, as amended.”

The surety contends that it was not bound by the default judgment entered in the suit between appellants and Greer because (1) it had no notice of the suit, and (2) that Greer’s acts were not covered by the Texas Mobile Homes Standards Act.

The legal effect of failure to give the surety notice of suit was discussed by this Court in Browne v. French, 22 S.W. 581, 583 (Tex.Civ.App.1893, no writ), wherein the Court said:

“The first question that we consider is, is the judgment of the Crane-Breed Manufacturing Company against French and the appellant conclusive against the ap-pellees as sureties on the bond sued on in this case, they not being parties to the suit or notified of its pendency? The obligation created by the bond so executed to appellant was that the obligors should pay the debts of French & Browne, and hold the appellant harmless. It was not that they should, be bound by any particular judgment, but simply a general promise to pay the debts. The general rule upon this subject may be stated that, when it appears from the terms of the obligation that the surety has contracted to become bound by a judgment that has been or may be rendered in an action against his principal, it is conclusive against him, although he was not a party to the suit in which the judgment was obtained; but in an undertaking, general in character, such as the bond sued upon in this case, the judgment obtained against the principal therein only creates a prima facie liability against the surety who was not made a party or given an opportunity to defend the suit in which the judgment was obtained. In such cases the judgment is not conclusive, and does not operate as an estoppel against the surety, and he will, when sought to be made liable therefor by the judgment creditors, be permitted to interpose any valid defense that would defeat the plaintiff’s case existing at the time the judgment was obtained. . .”

In distinguishing between an agreement to be bound by a particular judgment and a general undertaking to pay debts the Tex-arkana Court in United States Fidelity & Guaranty Co. v. Paulk, 15 S.W.2d 100, 103-104 (Tex.Civ.App.1929, no writ), wrote:

“. . . the appellees did not have notice of the former suit. The generally recognized rule, and about which there is no doubt, is that a final judgment of a competent tribunal is conclusive of all matters adjudicated as between the parties and their privies. This estoppel extends, of course, to every material allegation in the cause which was either expressly or by necessary implication in issue. In such case the judgment, upon proof of its rendition, becomes conclusive evidence against such parties. And the rule seems to be established that an in-demnitor, although he does not appear in the suit, is not regarded as a stranger to the judgment, which, if obtained without fraud or collusion, is conclusive against him to the extent of the matters expressly determined by it, where such indemnitor expressly makes his liability to depend on litigation and stipulates that he will abide the result of the suit. 34 C.J. p. 1031; 14 R.C.L. p. 61; 2 Black on Judgments, 573; National Surety Co. v. Love, 105 Neb. 855, 182 N.W. 490, and other cases. He may set up and prove only defenses which were not directly determined in the first litigation. . .”
“Again, according to the weight of authority, as a general rule, where the in-demnitor has not been notified of the prior suit and has not made his liability over depend expressly on the event of a litigation to which he was not a party and has not stipulated to abide the judgment of the suit, estoppel is not created by the judgment therein and such judgment does not become conclusive evidence of the ultimate liability over to the defendant therein. It is regarded as prima facie evidence of the fact of its rendition and the amount of damages. . . . ”

In the case on appeal, the bond provides that the surety is bound to pay the obligee “for damages, penalties or expenses” resulting from a cause of action in connection with the sale or lease of a mobile home, the payment of which is conditioned upon the principal’s violation of applicable provisions of the Texas Mobile Homes Standards Act. In our view, the surety did not agree in the bond to be bound by a particular judgment, but instead it agreed to a general undertaking to pay “for damages, penalties, or expenses” on account of claims or suits. Compare the surety’s agreement in Beneke v. Western Surety, 536 S.W.2d 67 (Tex.Civ.App.1976, writ ref’d n.r.e.). Accordingly, because the surety was not given notice of appellants’ suit against the principal and because the surety did not agree in the bond to be bound by a particular judgment, estoppel was not created by the default judgment and such judgment is not conclusive of the liability of the surety. Instead, the default judgment is regarded only as prima facie evidence of the fact of its rendition and the amount of damages. United States Fidelity & Guaranty Co. v. Paulk, supra.

Appellee also asserts that the default judgment was not determinative of its liability under the bond because Greer’s acts were not covered by the Mobile Homes Standards Act. Appellants respond, however, that by the terms of the Mobile Homes Standards Act a violation of that Act is not necessary to subject the surety to liability under the bond. Appellants argue, correctly, that the bond under consideration is a statutory bond. That being so, we agree with appellants that the Texas Mobile Home Standards Act is made a part of the bond, irrespective of the intent of the parties. Globe Indemnity Co. v. Barnes, 288 S.W. 121 (Tex.1926). To resolve the issue of the surety’s liability under the bond, this Court, then, must necessarily construe the Mobile Homes Standards Act.

The first premise in appellants’ argument is the general observation that the intent of the Mobile Home Standards Act was to protect consumers against unprincipled and dishonest mobile home purveyors. Appellants then narrow their argument, somewhat, by reference to language in Sec. 13(c), now Sec. 13(f) of the Act. Section 13(c) provided in part that the “. bond . . . shall be to the state for the use by a consumer . . . who establishes liability against a . dealer . for damages, restitution, or expenses . resulting from a cause of action connected with the sale or lease of a mobile home.” Appellants remark that there are no words of limitation modifying the phrase “cause of action.” Likewise, appellants note that nowhere in Sec. 13 or any other provision of the Act is it stated that the “cause of action” must be based upon a violation of the Mobile Homes Standards Act. Based upon these observations, appellants’ argument is that if a consumer obtains a judgment against a mobile home dealer, pursuant to the Deceptive Trade Practices Act, he may obtain satisfaction from the statutory bond, limited only by the proviso in Sec. 13(c) that the judgment resulted “. . . from a cause of action connected with the sale or lease of a mobile home.”

The resolution of the problem requires an examination of the entire Mobile Homes Standards Act. Section 13(a) requires that all manufacturers, dealers and salespersons file a bond “. . .to insure compliance with the intent of this Act." (Emphasis added) Prior to 1975, “this Act,” the Mobile Homes Standards Act, made no reference to the Deceptive Trade Practices Act, although the latter became law in 1973. After 1975, however, the Mobile Home Standards Act was twice amended so that at the present time it now provides that any violation of Sections 14 or 4 of the Mobile Homes Standards Act “. . . is considered a deceptive trade practice . .” under Sec. 17.41 of the Business and Commerce Code. Art. 5221f § 17(d). Since a violation of Sec. 14 was made a deceptive trade practice, the consumer was afforded the remedies provided in § 17.50 of the Business and Commerce Code.

Section 14 provides, in general, that all mobile homes sold by a manufacturer or dealer to consumers shall be covered by a specified mobile home warranty. Section 17(d), in turn, makes the violation of the mobile home warranty a deceptive trade practice. Accordingly, the consumer who proves a violation of the mobile home warranty is entitled to obtain the relief afforded by Tex.Bus. & Comm.Code Ann. § 17.50 (Supp.1978). Appellants, however, in the Nueces County suit or in their counterclaim in the Travis County suit, did not plead or prove that Greer violated a mobile home warranty provided by Section 14.

The judgment is affirmed.

Affirmed.

      . At the time appellants filed suit against Greer, the Texas Mobile Homes Standards Act did not require that notice of a claim be given the surety. The Act now requires that the surety be given notice. Tex.Rev.Civ.Stat.Ann. art. 522If § 13(g).

      . At the time of the filing of appellants’ suit, only a violation of Sec. 14 constituted a deceptive trade practice. . -