text:
    Juventino VALAQUE, Appellant, v. Antonia Vala Perez VALAQUE, Appellee.
    No. 16046.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 15, 1978.

      Terri C. Snell, Marc J. Schnall, Stephen G. Cochran, San Antonio, for appellant.
    Benjamin D. Lucas, San Antonio, for ap-pellee.
   OPINION

CADENA, Chief Justice.

This is a divorce suit in which the husband, Juventino Valaque, complains only of the failure of the trial court to order the wife, Antonia Vala Perez Valaque, to contribute to the support of the parties’ minor child as provided for in Texas Family Code, Section 14.05(b) (Vernon 1975).

The applicable statute provides that if the court finds that a child of the parties to the divorce action requires continuous care and personal supervision because of a mental or physical disability and will not be able to support himself, “the court may order that payments for the support of the child shall be continued after the 18th birthday and extended for an indefinite period.” Id. The trial court found that the child, who was 17 years old when the divorce action was instituted by the wife, became 18 years of age subsequent to the filing of the divorce suit but prior to the entry of the divorce decree. The court also found that such child requires continuous care and personal supervision because of a physical disability and that he is not able to support himself. The decree, after providing that the father shall have care, custody and control of the child, provides that the mother will not be ordered to pay child support under Section 14.05(b).

We do not accept appellant’s theory that Section 14.05(b) makes it mandatory, where the conditions specified exist, that the trial court enter an order requiring one of the parents to support the handicapped child beyond his 18th birthday. The statutory language clearly indicates a legislative intent to confer authority rather than an intent to impose a requirement. The duty of a parent to contribute to the support of a child corresponds to that parent’s ability to pay. Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921). Indeed, division of income between a parent and child must take into account the right of the parent to self-subsistence. “[T]here is some minimum amount necessary for a bare subsistance [sic], and less than such amount renders a child support order unenforceable.” Anderson v. Anderson, 503 S.W.2d 124, 127 (Tex.Civ.App.—Corpus Christi 1973, no writ). Additionally, circumstances may exist which could entirely relieve a parent of the duty to support. See Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 100 (1921). This case is before us without a statement of facts. Therefore, we must assume that the trial court found the existence of circumstances which justified its refusal to require appel-lee to pay child support and that such finding is supported by the evidence. Guthrie v. National Homes Corp., 394 S.W.2d 494, 495 (Tex.1965); 4 R. McDonald, Texas Civil Practice § 16.10(a) (rev. 1971).

We need not determine whether, in a case where the child is under 18 when the divorce suit is filed but reaches age 18 before the divorce decree is entered, Section 14.-05(b) empowers the court to enter an order requiring support of such child. See Red v. Red, 552 S.W.2d 90 (Tex.1977).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Mary Lee Simmons HULL et vir., Joe Hull, Appellants, v. QUANAH PIPELINE CORPORATION, Appellee.
    No. 16042.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 15, 1978.
    Rehearing Denied Dec. 13, 1978.
    Bradley C. Miles, San Angelo, for appellants.
    George W. Harrison, San Angelo, for ap-pellee.
   OPINION

KLINGEMAN, Justice.

This suit involves an option of renewal in a lease contract. Mary Lee Simmons Hull and husband, Joe Hull, as plaintiffs, brought this suit against Quanah Pipeline Corporation, as defendant, in the District Court of Sutton County, seeking a declaratory judgment to determine whether a certain lease dated June 16, 1976, terminated one year later, or whether the lease was enforceable against the plaintiffs, as lessors, as a perpetual lease at the option of the defendant. The trial court held that the lease in question was valid and enforceable, and the instrument was construed as granting unto the defendant the right to renew the lease from year to year indefinitely or perpetually for the same consideration and under the same terms and conditions as the primary term of said lease. The trial court made extensive findings of fact and conclusions of law.

Plaintiffs’ sole point of error is that the trial court erred in construing the lease in question as granting to the defendant the right of indefinite or perpetual renewal of said lease.

The lease in question covers a tract of approximately two acres of land for a primary term from June 16, 1976, to June 16, 1977. It provides for an annual rental of $200 to be paid yearly. The pertinent provisions with regard to the option to renew are set forth as follows:

It is further agreed that for and in consideration of the covenants and agreements and the payment for the initial term above set forth, the Lessee shall have and is hereby granted by the Lessors, and [sic] indefeasible option to extend such lease for an additional year and from year to year thereafter for the same consideration and under the same terms and conditions as set forth herein by Lessee paying Lessors the annual rental provided herein each year prior to the anniversary date of this lease. .
It is the intention that said Lessee shall have the use and benefit of said real estate so long as used for the above purposes and the annual rental is paid for the use thereof. .
It is further understood that upon the exercise by Lessee of the option for extension of this lease, said extension shall be upon the same terms and conditions as herein provided for the primary term of one year and no new agreement need be entered into.

In summary, appellants contend that (1) generally, an option to renew a lease at the end of the term is satisfied with only one renewal of a like term, otherwise a lease in perpetuity would be created which the law does not favor; (2) the construction of the lease by the trial court constituted a taking of plaintiffs’ property without just compensation and without due course of law; and (3) the option to renew is invalid because it is not supported by any consideration. We do not regard the cases and authorities cited by plaintiffs as controlling.

The rule appears to be that while the right to perpetual renewal is not favored and there is no presumption that the parties intended to create a perpetual right, nevertheless, where the intention to create a right of renewal in perpetuity is clearly and unambiguously expressed the obligation so created is valid and enforceable, except where it is prohibited by statute or is otherwise in violation of the law. 51C C.J.S. Landlord and Tenant § 61 (1968).

The only Texas case we have found to speak on the subject of the perpetual leasehold is Pickrell v. Buckler, 293 S.W. 667 (Tex.Civ.App.—El Paso) writ ref’d, per curiam, 116 Tex. 567, 296 S.W. 1062 (1927), which is not directly in point. The original lease in that case was for a period of seven years, with an option to renew under certain conditions. Shortly before a termination of the original lease the parties entered into an extension agreement for an additional seven years. At the end of this term, the lessee gave notice of his desire to renew the lease and the lessor denied that he had any right of renewal. The El Paso Court of Civil Appeals held that the option to renew was void for uncertainty. The court stated that there was no doubt that under the terms of the original lease the plaintiffs were entitled to but one renewal. The court indicated therein that the right to perpetual renewal is not favored, and there is no presumption that the parties intended to create a perpetual right unless the plain and unmistaken import of the language so shows.

The Supreme Court of Texas, in a per curiam opinion, was not inclined to view the covenant to renew in the original lease as void for uncertainty, but held that under the writings executed by the parties the lessee had no right or option to renew the lease more than one time. 296 S.W. at 1062. The lease in Pickrell differs in many respects from the lease we have before us.

We have concluded that the better and correct rule is set forth in 50 Am.Jur.2d Landlord and Tenant § 1169 (1970), wherein it is stated:

Although there is some contrary authority, the generally accepted view is that a provision clearly giving the lessee and his assigns the right to perpetual renewals is valid in the absence of some statutory prohibition, and will be enforced by the courts, although such a provision in a lease is not favored by the courts, and a lease will be construed as not making such a provision unless it does so clearly.
It has been generally held that a provision in a lease for perpetual renewal is not violative either of the rule against perpetuities or of statutes limiting the period during which the absolute power of alienation may be suspended. The reason for this is that the covenant to renew may be taken as part of the lessee’s present interest. It is obvious that a perpetual lease, or a lease containing a covenant for perpetual renewal, is not a restraint or limitation upon the power of alienation of the fee, for there are at all times persons in being who, by joining, can convey the fee.

See also Annot., 31 A.L.R.2d 607 (1953), on the right to second or perpetual renewal of ■leases.

The lease involved here clearly and specifically shows that it was the intention of both the lessor and the lessee that the lessee should have a right of perpetual renewal. The applicable provisions of this lease with regard to renewals have previously been set forth in this opinion and are also set out in the trial court’s findings of fact and conclusions of law. The provisions of the lease are plain and unambiguous and they clearly evidence an intent and purpose to create a right of perpetual renewal. The lease is valid and enforceable and the trial court’s holdings and findings are correct.

The judgment of the trial court is affirmed.


author: CIRE, Justice.

text:
    Dr. Ernest S. SEARS, Appellant, v. Emma Jane COOPER, Appellee.
    No. 1874.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1978.
    Rehearing Denied Dec. 6, 1978.

      Russell H. McMains, William H. Payne, Fulbright & Jaworski, Houston, for appellant.
    Jim M. Perdue, Andrew L. Todesco, Miller, Gann & Perdue, Houston, for appellee.
   CIRE, Justice.

This is a medical malpractice case.

Ernest M. Cooper, in the capacity of guardian of the person and estate of his wife, Emma Jane Cooper, instituted this suit against appellant, Dr. Ernest S. Sears. The voluminous record in this case may be summarized as follows.

Dr. Sears had been Mrs. Cooper’s physician for approximately twenty years at the time of the treatment which is the basis for this suit. On October 12,1972, Mrs. Cooper complained to Dr. Sears of not feeling well and of having a slight puffiness, or edema, in her face and hands. Dr. Sears prescribed Enduron, a moderate diuretic manufactured by Abbott Laboratories for treatment of the edema. He instructed her to take one tablet a day. Mrs. Cooper called Dr. Sears’ office shortly after this visit and told the nurse that the Enduron made her ill. The nurse instructed her to discontinue the medication until Dr. Sears returned to the city on October 20.

Mrs. Cooper saw Dr. Sears on October 20, at which time she had the same general complaint of not feeling well, in addition to nausea and the continued edema. Dr. Sears later noted in the hospital record that she acted strangely on that date. He instructed her to resume the Enduron.

On the evening of October 21 Mrs. Cooper called her husband at work and asked him to return home, as she was ill. On Sunday morning, October 22, Mr. Cooper called Dr. Sears and advised him of his wife’s illness. Dr. Sears told him to discontinue solid foods, give her liquids, and bring her to his office on Monday. Mr. Cooper gave Mrs. Cooper a glass of tea, and shortly thereafter found her unconscious. He rushed her to Heights Hospital where she was admitted in a comatose state. It was subsequently determined that she had sustained permanent brain damage. Dr. Sears’ final diagnosis on discharge was anoxic encephalopathy due to coma caused probably by severe electrolyte imbalance. Mrs. Cooper is currently institutionalized, and the testimony showed that she will require custodial care for the rest of her life.

The Coopers sued Dr. Sears on several counts of negligence. The primary grounds of negligence urged were the initial prescription of Enduron and the subsequent instructions to resume the drug without performing electrolyte imbalance testing. Other grounds included prescription of En-duron in combination with another drug and inappropriate treatment upon Mrs. Cooper’s admission to Heights Hospital. The jury found Dr. Sears negligent in ordering the resumption of Enduron and in failing to perform electrolyte testing on October 20; however, only the first of these was assigned as a proximate cause of Mrs. Cooper’s injuries. She was awarded $500,-000.00 for reasonable medical and institutional expenses.

The primary thrust of Dr. Sears’ appeal is that there is no evidence, or insufficient evidence, to support the jury’s findings of negligence and proximate cause. In passing on the “no evidence” points, we must consider the evidence in the light most favorable to appellant and reject all contrary evidence and inferences. The “insufficiency of the evidence” points require us to weigh and consider all the evidence in the case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The trial, which took three weeks, produced an extensive record replete with expert testimony. The Coopers’ primary expert witness was Dr. George David Lund-berg, a California physician specializing in pathology. He testified that Mrs. Cooper suffered from electrolyte imbalance which was aggravated by the diuretic Enduron, and that this aggravation resulted in her brain damage.

Briefly, electrolytes are electrically charged substances, such as sodium and potassium, which are found in the blood. A particular balance or concentration of these substances in the blood stream is necessary for sustaining life. An imbalance produces detrimental results ranging from disorientation and weakness to coma and death. An imbalance may result from increased ingestion of fluids or rapid loss thereof, as by continued vomiting or diarrhea. The use of a diuretic, such as Enduron, which causes the body to lose fluids, may also cause an imbalance. Laboratory tests performed on a blood sample can determine whether there is a proper concentration of electrolytes in the system. These tests were not performed on Mrs. Cooper until after her admission to the hospital. Dr. Sears’ own records showed that Mrs. Cooper was admitted to the hospital with “severe electrolyte imbalance”. It was primarily on Dr. Sears’ records that Dr. Lundberg based his opinion.

Dr. Sears produced a number of medical experts who gave their opinions as to the possible causes of Mrs. Cooper’s condition. These causes included hepatic coma, menin-gial disease, cerebral hemorrhage, encepha-lomelitis, and stroke.

After examining the record, we feel that there was sufficient evidence to support the jury’s verdict, and so affirm the judgment of the trial court.

On the issue of negligence, the evidence indicated two departures from accepted practice, the instructions to resume the drug after it had made Mrs. Cooper ill and the prescription of Enduron in the absence of a diagnosis. Dr. Sears himself, as well as the expert witnesses called by both sides, testified that a physician should know a patient’s condition before prescribing a drug. Expert witnesses on both sides indicated that if a drug makes a patient ill it should be discontinued, or at the very least an investigation should be made into the cause of the illness.

Appellant attacks much of this testimony on the ground that the standard of care of specialists differs from that of general practitioners, and as a result the testimony of appellee’s expert is insufficient as to Dr. Sears. According to appellant, this is contrary to the rule in Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949), which requires testimony by a doctor of the same school as the defendant that the diagnosis or treatment was negligent and a proximate cause of the patient’s injuries.

The Bowles rule was qualified by Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953). There the Texas Supreme Court held that where the subject of inquiry is common to and equally recognized and developed in all fields of practice, then any physician familiar with the subject may testify as to standard of care. Doctor Lund-berg testified that the standards relating to the use of a diuretic are uniform throughout the areas in which he had practiced, Alabama, Texas, Hawaii, and California, and do not vary among the states. He classified this standard as a national and not a local one. He further stated that the standard does not vary in the approaches taken by specialists and general practitioners. See also Simpson v. Glenn, 537 S.W.2d 114 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.).

Appellant did not challenge the qualifications of appellee’s experts on this ground at the trial level. In addition, the question of whether a witness is qualified as an expert is one for judicial determination and is reviewable only for an abuse of discretion. Seeley v. Eaton, 506 S.W.2d 719 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.). Appellant’s fourth, fifth and sixth points of error alleging no evidence and insufficient evidence as to negligence are overruled.

On the issue of proximate cause, we feel that there is sufficient circumstantial evidence to support the jury’s verdict. “Proximate cause, like any other ultimate fact, may be established by circumstantial evidence.” Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.Sup.1975).

Mrs. Cooper first took the.Enduron when it was prescribed by Dr. Sears on October 12, and she ceased taking it when so ordered. The jury could, therefore, reasonably conclude that she then resumed taking the Enduron when ordered to do so by Dr. Sears. Also, several of the Enduron tablets given to Mrs. Cooper by Dr. Sears were unaccounted for after she was hospitalized. This was some evidence from which the jury could conclude that she had resumed the drug.

Further, the hospital records concerning Mrs. Cooper’s illness were admitted into evidence. These records were prepared by Dr. Sears. The medical history portion recorded at the time of Mrs. Cooper’s admission stated that she had been taking Enduron and may have taken too much. The record in this case indicated that Dr. Sears could have known of this by way of a telephone conversation with Mrs. Cooper the night before her admission to the hospital. Mr. Cooper testified that Dr. Sears stated to him that he had talked to Mrs. Cooper that night. Evidence of a patient’s statements which have been made to a physician for purposes of medical diagnosis or treatment and which describe the medical history of an ailment is not excluded by the hearsay rule. Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (1938); Texas Employers’ Insurance Association v. Steadman, 415 S.W.2d 211 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.).

In addition, there was testimony by Mr. Cooper that on the evening of October 21 his wife told him on the telephone that she had taken two pills and wondered if she should take a third. This evidence was admissible as res gestae. Texas Employers’ Insurance Association v. Butler, 483 S.W.2d 530 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). There was adequate independent proof of the fact related by Mrs. Cooper. Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.Sup.1963). This included the information contained in Dr. Sears’ records, and the facts that some pills were missing and that Mrs. Cooper’s condition in the hospital was consistent with her having taken Enduron. See Texas Employers’ Insurance Association v. Butler, supra at 533-34. Appellant’s first, second and third points of error alleging no evidence and insufficient evidence as to proximate cause are overruled.

Appellant’s seventh point of error attacks the reasonableness of the jury’s verdict of $500,000.00 for medical and institutional care. It is apparently appellant’s contention that the reasonableness of this sum depends on their being an evidentiary link between Mrs. Cooper’s condition and Dr. Sears’ instructions to her to resume the Enduron. We note first that the record discloses sufficient evidence to support the award of the sum of $500,000.00. See City of Houston v. Moore, 389 S.W.2d 545 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.). However, because we have held that there is sufficient evidence linking Dr. Sears’ action with Mrs. Cooper’s present condition, it is unnecessary that we comment further on appellant’s argument under this point of error. It is accordingly overruled.

Affirmed.

      . Abbott Laboratories was joined as a defendant in the trial court but had a directed verdict rendered in its favor at the close of the evidence.


author: SHANNON, Justice.

text:
    James M. TERRELL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 12767.
    Court of Civil Appeals of Texas, Austin.
    Nov. 15, 1978.
    Rehearing Denied Dec. 20, 1978.
    Marvin S. Sprain, Billy John Edwards, Whitten, Sprain, Price, Wagner & Edwards, Abilene, for appellants.

      John L. Hill, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, for appellee.
   SHANNON, Justice.

This appeal involves construction and application of the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 14(8) and (9) (1970).

James M. Terrell sued highway patrolman James E. White and the State of Texas in the district court of Runnels County for personal injuries resulting from an automobile collision near Rowena. The district court severed Terrell’s cause against White from his cause against the State and entered summary judgment that Terrell take nothing against the State. We will reverse the judgment.

The summary judgment proof showed that the collision happened on December 18, 1975, at about 6:00 P.M. on Highway 67. Highway 67 is divided and at the place of collision runs east and west. White’s patrol car was parked on the paved shoulder of the westbound lane of Highway 67 where White was operating radar for the detection of speeding eastbound traffic. To overtake an eastbound speeder it was necessary for White to drive about one hundred-fifty feet west on Highway 67 to a crossover and then turn back east to pursue the speeder.

The patrol car, while parked on the shoulder, had no lights burning. The proof was conflicting as to whether most moving traffic had lights on because of impending darkness.

Just before the collision, White’s radar detected a speeding eastbound pickup. White claimed that he started his vehicle, turned on its headlights, looked to the rear, and pulled onto the westbound lane of Highway 67.

Terrell testified by deposition that he was driving his vehicle westbound on Highway 67. Terrell saw the patrol car stopped on the right shoulder of the road. The patrol car taillights came on briefly. Then the patrol car started up suddenly and pulled in front of Terrell’s vehicle. The right front fender of Terrell’s vehicle collided with the left side of the patrol car. It was undisputed that at the time of the collision, White had not turned on the “red lights” or the siren of the patrol car.

The Texas Tort Claims Act waives the doctrine of governmental immunity in certain respects. Section 3 is the general provision establishing governmental liability in the operation of motor vehicles. Section 3 provides in part as follows:

“Sec. 3. Each unit of government in the state shall be liable for money damages for personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state . . . Such liability is subject to the exceptions contained herein . . . ”

Section 14 of the Act specifically enumerates twelve “exemptions” from application of the Act. Section 14 provides in part:

“The provisions of this Act shall not apply to:
“(9) Any claim based on an injury or death connected with any act or omission arising out of . the method of providing, police or fire protection.”

As primary ground for its motion for summary judgment, the State contended that Terrell’s injuries were connected with an act arising out of the method of providing police protection, and for such reason the State was not liable.

In County of Brazoria v. Radtke, 566 S.W.2d 326 (Tex.Civ.App.1978, writ ref’d n.r.e.), the Ninth Court of Civil Appeals construed § 14(9). The facts in that ease are similar in many respects to those in the case at bar. In Radtke the deputy sheriff of Brazoria County, while engaged in the investigation of a criminal offense, was involved in an automobile collision with Radtke. The officer was not on an emergency call when the collision occurred. The County argued that Radtke’s injuries were connected with an act arising out of “. . . the method of providing police protection,” and, as a result, it was not responsible for Radtke’s damages.

In rejecting the County’s argument the Court wrote:

“In determining the meaning of this section [§ 14(9)], we must ascertain the legislative intent by reviewing the entire act. See Woods v. Littleton, [554 S.W.2d 662 (Tex.)] supra at 665. Sec. 3 establishes governmental liability for the negligent operation of a motor vehicle by a government officer or employee. Sec. 14(8) exempts governmental units from liability for ‘[a]ny claim arising out of the action of an officer, agent, [sic] or employee while responding to emergency calls or reacting to emergency situations . .’ After considering these provisions in conjunction with Sec. 14(9), we conclude that the Legislature did not intend to exempt governmental units from liability for claims arising out of the negligent operation of a motor vehicle by a police officer in a non-emergency situation.”

As we understand Radtke, § 14(9) does not exempt the State from liability for claims arising from the negligent operation of a police vehicle. On the other hand, § 14(8) does exempt the State from liability for claims arising from the negligent operation of a police vehicle by an officer responding to an emergency situation. The summary judgment may not be sustained then upon the basis of § 14(9).

As final ground for its motion for summary judgment, the State claimed that Terrell’s claim arose out of the action of an officer when he was responding to an emergency call or reacting to an emergency situation.

The provisions of the Texas Tort Claims Act do not apply to:

“Sec. 14. * * *
“(8) Any claim arising out of the action of an officer, agent or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.”

Section 14(8) retains governmental immunity from claims that arise from the action of officers responding to emergency calls or reacting to emergency situations provided that “. . such [emergency] action is in compliance with the laws and ordinances applicable to emergency action.”

Immediately prior to the collision, Officer White was probably responding to an emergency situation in trying to apprehend the speeding eastbound pickup. It is undisputed, however, that he had not turned on the “red lights” and siren of the patrol car. We are of the opinion that § 14(8) cannot apply because Officer White was not in compliance with the laws applicable to emergency action. To operate lawfully a patrol car in emergency action, one must make application of the vehicle’s audible and visual signals. Tex.Rev.Civ.Stat. Ann. art. 6701-d, §§ 24, 124 (1977). It follows that the summary judgment may not be sustained upon the basis of § 14(8).

The judgment is reversed and the cause is remanded to district court. In fairness to counsel and to the district court, it should be observed that the opinion in Radtke was delivered by the Court of Civil Appeals after entry of judgment in the case at bar..


author: McDONALD, Chief Justice.

text:
    Ex parte Joe Lloyd BROWN, Relator.
    No. 6002.
    Court of Civil Appeals of Texas, Waco.
    Nov. 16, 1978.

      W. V. Dunnam, Jr., Dunnam, Dunnam & Dunnam, Waco, for relator.
    Michael J. Rogers, Cleburne, for respondent.
   OPINION

McDONALD, Chief Justice.

This is an original habeas corpus proceeding brought pursuant to Article 1824a VATS, in which Relator Joe Lloyd Brown, seeks release from the custody of the Sheriff of Johnson County.

Relator Joe Lloyd Brown and Patricia Brown were divorced August 4, 1976 in the District Court of Johnson County. The decree required relator to pay $200. child support for the parties’ minor child, and permanently enjoined the parties “from doing any act to harass or embarrass the other party, and further enjoining any unreasonable physical or nonphysical contact between the parties”.

On July 28, 1978 Patricia Brown filed “Motion to Modify and Petition for Contempt” in which she sought increase of child support from relator to $300. per month; alleged relator was in arrears on his child support; and further alleged that on January 13, 1978 relator “ran [her] off of a highway and later on the same day * * physically broke into [her] home in Richardson, Texas, and physically abused [her] to the extent [she] was hospitalized; and that [Relator] had wilfully disobeyed the orders of the court”.

The trial court after hearing rendered judgment on October 12, 1978 which:

1) decreed relator in contempt for failing to make child support payments ordered in the August 4, 1976 decree and fixed punishment at confinement in the Johnson County jail until he purged such contempt by paying: a) arrearage of $1075.; b) $250. attorney’s fees; c) $68. court costs of the proceeding. .
2) decreed relator in contempt “for deliberately causing his automobile to come into collision on January 13,1978 with the automobile being driven by Patricia Brown and for deliberately causing on January 18, 1978 an unreasonable physical contact between the parties, both in wilful disobedience of the order of * * August 4, 1976; and that punishment therefor be fixed * * * at confinement in the jail of Johnson County, Texas for a period of 15 days”.

Relator has paid the $1075. child support arrearage; the $250. attorney’s fee and the $68. court costs.

Relator after serving 4 days in jail, filed application for Writ of Habeas Corpus in this Court alleging that he is illegally restrained of his liberty by virtue of the October 12,1978 decree. Relator alleged he had paid the child support, attorney’s fees and costs; that punishment for the physical contact with Patricia Brown on January 13, 1978 was in violation of the prohibition against double jeopardy of the Fifth and Fourteenth Amendments of the U.S. Constitution and Article 1, Section 14 of the Texas Constitution, as he had been tried for the identical physical contact offense, was found guilty, and assessed a fine of $150. and 30 days in jail; and that the October 12, 1978 decree was void.

This Court issued the Writ of Habeas Corpus, ordered relator released on bond, and set hearing for October 23, 1978.

On November 3, 1978 respondent filed supplemental transcript in this Court reflecting that on October 24, 1978 Patricia Brown filed a motion in the District Court of Johnson County for entry of Judgment Nunc Pro Tunc pursuant to Rule 316 TRCP. The trial court after hearing such motion entered Judgment Nunc Pro Tunc in lieu of the October 12, 1978 judgment, decreeing:

1) Relator in contempt of court for failing to pay child support decreed by the August 4, 1976 judgment, assessed confinement in the Johnson County jail until he: a) pay $1075. arrearage in child support; b) $250. attorney’s fee; c) $68. court costs; and confinement in the Johnson County jail for 15 days.
2) Relator in contempt for “deliberately causing his automobile to come into collision on January 13, 1978 with the automobile driven by Patricia Brown, and for deliberately causing on January 13, 1978 an unreasonable physical contact with Patricia, both in wilful disobedience of the decree of August 4, 1976; and fixed punishment for such at confinement in the Johnson County jail for 15 days.
3) Both 15 day confinements should run concurrently.

The October 12, 1978 order under which relator was confined and from which confinement relator sought release by this Court on Writ of Habeas Corpus, provides that relator could purge himself of the contempt for child support arrearage by paying such sum, attorney’s fees and court costs, which relator has paid. Such order further holds relator in contempt for causing his automobile to collide with Patricia’s and for deliberately causing an unreasonable physical contact with Patricia, both in wilful disobedience of the August 4, 1976 decree; and fixes punishment for these two acts at 15 days confinement in jail.

The proof showed relator was tried and convicted in County Criminal Court # 6, Dallas County for the January 13, 1978 unreasonable physical contact with Patricia and fined $150. and assessed 30 days in jail.

Contempt actions are criminal in nature. And the procedure therein should conform as nearly as practicable to criminal procedure. Ex Parte Genecov, 143 Tex. 476, 186 S.W.2d 225.

And the Fifth Amendment prohibition against double jeopardy precludes relator’s punishment by contempt proceeding for what he has already been punished for under the state laws in the criminal proceeding. People of New York v. Menna, 38 N.Y.2d 850, 382 N.Y.S.2d 56, 345 N.E.2d 599; Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195.

Thus relator cannot be held in contempt for the January 13,1978 unreasonable physical contact.

As noted, the October 12, 1978 judgment decreed relator one penalty, to wit, 15 days in jail for the automobile collision and for the unreasonable physical contact violations.

Where one penalty is fixed for more than one act of contempt, and it is found relator cannot be held in contempt for one of the acts, as here, the whole judgment is void and a person held under it is illegally restrained of his liberty. Ex Parte Werner (Tex.Civ.App. San Antonio) 496 S.W.2d 121; Ex Parte Turner (Tex.Civ.App. 1 Houston) 478 S.W.2d 256; Ex Parte Stanford (Tex.Civ.App. 1 Houston) 557 S.W.2d 346; Ex Parte Carpenter (Tex.Civ.App. 14 Houston) 566 S.W.2d 123; Ex Parte Harwell (Tex. Civ.App. Waco) 538 S.W.2d 667.

The October 12, 1978 decree is void and relator's confinement under such decree is thus illegal.

But on November 2, 1978, the trial court rendered Judgment Nunc Pro Tunc which decreed relator’s punishment at 15 days in jail for the arrearage in child support contempt; 15 days in jail for the collision and unreasonable physical contact contempt; and provided the two 15-day confinements run concurrently.

The trial court action in rendering the Nunc Pro Tunc judgment is a nullity. Once the Writ of Habeas Corpus was granted by this Court and delivered to the restraining officer, the relator was no longer held under the original commitment, but under the direction and authority of this Court. Thereafter no valid order could be entered in the matter by the court making the original commitment, since this Court had obtained jurisdiction of the relator by proceedings in Habeas Corpus. The proceedings in the trial court in rendering the Nunc Pro Tunc judgment were in violation of due process and are void. Ex Parte Spencer (Tex.Civ.App. Texarkana) 508 S.W.2d 698; Ex Parte Kearby, 35 Tex.Cr.R. 634, 34 S.W. 962; Emery v. State, 57 Tex.Cr.R. 423, 123 S.W. 133.

Moreover, in a criminal case, the judgment cannot be modified to increase punishment even during the same term of court, if the defendant has commenced service of his imprisonment or paid his fine. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354.

Benz holdings such rule is based “upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall ‘be subject for the same offense to be twice put in jeopardy * * *

The November 2, 1978 judgment is void for this additional reason.

The relator is ordered discharged.


author: MOORE, Justice.

text:
    CENTEX MATERIALS, INC. v. Fred DALTON et al.
    No. 1173.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 16, 1978.

      C. Robert Dorsett, Austin, for appellant.
    Paul W. Jones, Jr., Austin, Lawrence J. Morgan, Austin, for appellees.
   MOORE, Justice.

This is a suit to foreclose a mechanic’s lien on three separate tracts of land. Plaintiff, Centex Materials, Inc. (Centex), instituted suit in the form of a sworn account against defendants, Chaparral Industries, Inc. (Chaparral), Fred Dalton, its president, and Henry Masur seeking to recover the sum of $2,422.41 for concrete furnished Chaparral in the construction of residences on three separate lots or parcels of land. The three lots or parcels of land, together with the amount alleged to be due and owing on each lot is described as follows:

1. Lot 5 and Lot 7, Block C, West Ridge Estates, Travis County, Texas, $804.83.
2. Lot 5, Block C, West Ridge Estates, Travis County, Texas, $1,146.60.
3. 406 Wallis, Rollingwood, Travis County, Texas, $470.98.

Centex alleged that it had properly perfected a statutory mechanic’s lien on each of the described tracts in accordance with the provisions of Article 5453, et seq., Tex. Rev.Civ.Stat.Ann. (Vernon’s Supp.1978), and prayed for a foreclosure on each tract. Each of the defendants answered with a general denial. Defendant, Henry Masur, affirmatively alleged that he purchased Lot 7 from Chaparral without notice of the outstanding indebtedness owed on the lot and was therefore a bona fide purchaser for value. He further alleged that the statutory lien filed by Centex was defective in that it failed to comply with the provisions of Article 5453, supra.

After a trial before the court sitting without a jury, the trial court rendered judgment granting Centex a recovery against Chaparral for the sum of $2,422.41, together with interest and attorney’s fees as prayed for in Centex’s suit on sworn account. The court also entered judgment foreclosing Centex’s mechanic’s lien on the property situated at 406 Wallis, Rolling-wood Addition (item number 3 above). The court denied Centex’s prayer for a foreclosure on the parcel of land described as Lot 5 and Lot 7, Block C of the West Ridge Estates Addition (item number 1 above), owned by defendant, Henry Masur, and also denied foreclosure on Lot 5, Block C (item number 2 above). A take nothing judgment was rendered against Centex on its suit against Dalton and Masur, individually.

Centex duly perfected an appeal from the judgment, but in so doing limited its appeal only to that portion of the judgment which denied it a foreclosure of its lien on Lot 7, Block C of the West Ridge Estates subdivision, which Masur purchased from Chaparral. Chaparral did not appeal and the judgment became final as to it. Therefore, the only parties to this appeal are appellant (plaintiff below) Centex and appellee (a defendant below) Henry Masur.

We affirm.

Appellee Masur failed to file a brief. Neither were findings of fact nor conclusions of law filed by the trial court. Consequently, the record before us consists only of the transcript and statement of facts. Where the record on appeal contains no findings of fact or conclusions of law, the well-settled rule is that the appellate court is required to affirm the judgment rendered by the trial court if it can be sustained on any reasonable theory authorized by law and supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, 554 (Tex.Civ.App.—Tyler 1965, no writ history).

Centex contends under its second point of error that the trial court erred in refusing to order a foreclosure on the house and lot owned by defendant Masur, situated on Lot 7, Block C, as described in item number 1 above. The record reveals that Chaparral was in the business of building and selling homes. Centex was in the concrete business and sold concrete to Chaparral on an open account. At the time the concrete was delivered to each of the three lots or parcels of land in question, Chaparral was the record owner of the lots. After the residence had been constructed on Lot 7, Chaparral represented that there were no unpaid bills and sold the same to Henry Masur on November 19, 1976. It is undisputed that Masur never owned any interest in Lot 5 and had nothing to do with the construction of the house thereon. While the record is not clear, it appears that Lot 5 was sold to some third party who is not a party to this suit.

The record shows that in attempting to perfect its statutory lien on Lot 7, Centex filed two mechanic’s lien affidavits with the County Clerk of Travis County on December 16, 1976. Both of the lien affidavits appear to be identical except for the fact that one recites that Chaparral and Fred Dalton were the owners of Lot 5 and Lot 7, while the other recites that Henry Masur was the owner of Lot 5 and Lot 7. Both lien affidavits recite that Centex was asserting a lien for the sum of $804.83 for concrete furnished to “Lot 5 and Lot 7,” Block C, West Ridge Estates, a subdivision of Travis County, Texas. (Emphasis supplied.) The record shows without dispute that Lot 5 and Lot 7 are not contiguous, being separated by an intervening lot.

Thus we are presented with a situation where a lien claimant has attempted to fix a statutory lien on two noncontiguous lots or parcels of land and now seeks a judgment foreclosing a lien on one of the parcels. The question to be determined is whether or not, under such circumstances, the statute can be held to confer a lien on either one of the two tracts or parcels of land which are not contiguous. We are of the opinion that the question must be answered in the negative.

Article 5452, paragraph 1, Tex.Rev.Civ. StatAnn. (Vernon’s Supp.1978), gives one who may furnish materials to erect or repair any house, building or improvement a lien upon “ . . . such house, building, fixtures, improvements . . .” and on the “. . . lot or lots of land necessarily connected therewith . . . ” Article 5458, Tex.Rev.Civ.Stat.Ann., provides:

“If this lien is against land in a city, town or village, it shall extend to or into the lot or lots upon which such house, building or improvement is situated, or upon which such labor was performed; and if the lien is against land in the country, it shall extend to and include fifty acres upon which such house, building or improvements are situated, or upon which such labor has been performed . ”

In the early case of Guaranty Sav. Loan & Investment Co. v. Cash, 99 Tex. 555, 91 S.W. 781 (1906), the Supreme Court of this state had occasion to address itself to the problem of whether our mechanic’s lien statutes could be construed to confer a lien upon three houses and lots for the whole price of the work and material furnished where the lots were not contiguous. In holding that such a lien would not be in compliance with the statute, the court said at page 782:

“The leading purpose running through these and the other provisions of the statute is to secure persons furnishing labor or materials in improving land by a lien upon that into which the labor or material has entered; i. e., the structures and the land to which they are attached. . Evidently the statute contemplates one improvement, constituting an entirety, to be affected by the lien to secure the value of the work, material, etc., which made it, and not that one improvement is to be charged with the cost of an entirely different one.”

The court in that case, however, went on to point out that where different lots or tracts of land are contiguous, and are treated as a single tract, the lien statutes do not require the lien affidavit to stipulate on which tract the material was used or the value of the material used on each tract. In that instance the lien attaches to all lots and it would be unreasonable to require a party who furnishes materials in such case to ascertain how much material is placed in each house, because this would be a matter under the control of the owner of the property which was improved. Lyon v. Logan, 68 Tex. 521, 5 S.W. 72 (1887); Oil Field Salvage Co. v. Simon, 140 Tex. 456, 168 S.W.2d 848 (1943).

In the instant case the undisputed proof shows that the lots on which appellant sought to affix a lien were not contiguous but were separated by an intervening lot. It follows that the lien is not in compliance with the statute and for that reason the same is not subject to an order of foreclosure. The record is such that the trial court would have been justified in denying a foreclosure on such theory and therefore the trial court’s ruling denying a foreclosure on the alleged statutory lien must be sustained.

This brings us to the question of whether appellant was entitled to a foreclosure of a constitutional lien as provided for in Article 16, sec. 37 of the Texas Constitution. The lien given a materialman by the Constitution exists independently of any legislative act and is self-executing. Strang v. Pray, 89 Tex. 525, 35 S.W. 1054 (1896); Wood v. Barnes, 420 S.W.2d 425, 429 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.).

In order to establish a constitutional lien on Lot 7, appellant had the burden of proving the value of the concrete supplied to that lot so that the court would be able to order a foreclosure for the specific amount due and owing on that particular lot. In our view appellant failed to discharge its burden of proving the value of the concrete attributable to Lot 7 as distinguished from Lot 5.

The evidence shows that the concrete was delivered by Centex’s trucks on August 13, 1976. Appellant offered in evidence five delivery tickets showing that five loads of concrete were delivered on that date to “Lot 5 and 7.” (Emphasis supplied.) (Note that the mechanic’s lien filed says “Lot 5 and Lot 7.) In each instance, Chaparral’s representative initialed the delivery tickets showing that the concrete had been received. The evidence shows that the total value of all the concrete delivered on the delivery slips reciting that the concrete had been delivered to “Lot 5 and 7” amounted to the sum of $804.83. The delivery tickets do not show what part of the concrete was delivered to Lot 5 and what part was delivered to Lot 7.

In an effort to prove that the entire amount of the concrete was delivered to Lot 7 and none of it was delivered to Lot 5, appellant called as a witness Doug Mon-zingo, the credit manager for Centex. He testified that even though the delivery tickets showed that the concrete was delivered to both Lots 5 and 7, the entire amount of the concrete was actually delivered and used in the improvements on Lot 7. However, when asked how he knew this to be a fact, he testified that this is what his truck drivers told him. None of the truck drivers were called as witnesses. Obviously the testimony of the credit manager amounted to nothing more than rank hearsay and for that reason it was not probative and did not establish that the entire amount of the concrete was used to improve Lot 7. Thus there is no proof that the entire amount of the concrete was attributable to Lot 7 and consequently the trial court would not have been authorized to enter an order foreclosing the constitutional lien on Lot 7 for such amount. While the proof offered by appellant might have been sufficient to show that some amount of concrete was used in improving Lot 7, the proof is not sufficient to show that the entire amount was used on Lot 7 and none was used on Lot 5. In the absence of any findings of fact or conclusions of law, we must presume, in support of the judgment, that the trial court rendered judgment on that theory and denied a foreclosure of the constitutional lien on that basis.

Appellant has no point of error complaining of the judgment on the ground that the trial court erred in denying it a judgment in personam against appellee Masur. Any error of the trial court in this regard must be considered as having been abandoned and waived. Rule 418, Tex.R.Civ.P.

The judgment of the trial court is affirmed.


text:
    Susan ROWLETT et vir., Appellants, v. W. W. McMILLAN, Appellee.
    No. 1902.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 22, 1978.
    Rehearing Denied Dec. 13, 1978.

      Robert E. Newey, Dazey & Newey, Houston, for appellants.
    Stanley C. Frank, Jr., Phillip P. Sudan, Richie, Greenberg & Brachman, Houston, for appellee.
   CIRE, Justice.

This is an appeal from a summary judgment rendered in favor of appellee, W. W. McMillan.

Appellants, Susan Rowlett and her husband, Douglas Rowlett, sued Mr. McMillan to recover for personal injuries incurred by Mrs. Rowlett when an unknown intruder broke into the house appellants were renting from appellee and forcibly raped her. Appellants’ suit at the trial level was based upon the theory that McMillan was negligent in failing to replace a flimsy back door after repeated requests by the Rowletts and in failing to provide a safe place for them to live. Mr. McMillan moved for a summary judgment which was granted. We reverse and remand.

The rental agreement signed by the Row-letts contained the following language:

We do not unstop sewer lines after one week of live in. We repair complaints on Saturdays; Someone must be home, if you call in a complaint and our repair man comes out and their [sic] is no one home, then we will not send him back out unless you pay a $10.00 fee for his trip.

This language expressly excludes only one type of repair; it then limits only the time at which appellee will send a repairman to the rented premises. There are no other conditions or limitations expressed in the clause. Further, appellants in their pleadings and reply to the motion for summary judgment indicate that Mr. McMillan did send a repair crew to the premises but then refused to authorize replacement of the door. This raises fact issues as to whether, first, Mr. McMillan had a duty to make repairs, and second, whether he carried out this duty in a negligent manner. As a result it was error for the trial judge to render a summary judgment for appellee.

The rental agreement contained an exculpatory clause consisting of the following language:

We do not carry any insurance on you or your personal property and we are not responsible for any ACCIDENTS OR DAMAGES that occur in or on these premises. Tenant is renting this property at his or her own risk.

Appellee purports to use this clause to support the summary judgment rendered in his favor. This clause, he says, absolved him from liability as a matter of law. We do not feel this defense was properly presented.

In his answer to appellants’ original petition, appellee made only a general denial. He did not there set forth the exculpatory clause as relieving him from liability. This is an affirmative defense which under Rule 94, Texas Rules of Civil Procedure, is required to be affirmatively pled.

Rule 166-A requires that the grounds for summary judgment shall be specifically set forth by the motion. Appel-lee’s motion for summary judgment does no more than recite the clause verbatim. It is not even alleged in the motion that appellee is claiming that the clause relieves him from liability, and there is no supporting summary judgment proof to demonstrate that he is relying on such a defense. This is contrary to the exact and precise requirements of Rule 166-A and it will not be allowed.

This case is reversed and remanded to the trial court.

Reversed and remanded.

Appellee argues in his motion for rehearing that the holding in the Texas Supreme Court case of Westchester Fire Insurance Co. v. Alvarez, 22 Tex.Sup.Ct.J. 57 (October 28, 1978) requires affirmance of the judgment of the trial court. We do not agree.

In the Westchester case Mrs. Alvarez sued the insurance company for $10,000.00. The insurance company filed a motion for summary judgment, but the motion failed to state any grounds therefor, contrary to Rule 166-A(c). Mrs. Alvarez did not except to this failure to state specific grounds, but raised this objection for the first time on appeal. The supreme court held:

The record and the affidavits attached to the motion undisputedly establish that Westchester Fire Insurance Company had paid Mrs. Alvarez more than $10,000 in workers’ compensation benefits and was therefore subrogated to the rights of Mrs. Alvarez in the $10,000 check under Article 8307 § 6, but the motion did not specifically state this ground or any other ground for judgment as required by Rule 166-A(c) (emphasis added).
[W]e hold that the failure of a motion for summary judgment to specify grounds is a defect of form that is waived unless excepted to prior to rendition of judgment.

Unlike the appellant in Westchester, appellee here did not fail to state any grounds in support of his motion for summary judgment. On the contrary, he specifically set out the ground that “[djefen-dant had no duty to replace the door.” This was based on the facts that there was no covenant to repair in the lease and that any promise to repair was gratuitous and without consideration. He did not state that the exculpatory clause relieved him of any duty to repair.

Since appellee affirmatively stated grounds for summary judgment, appellants could not except to the motion on that basis. It is this fact which distinguishes this case from the Westchester case. Further, appellants could assume that appellee was relying on the stated grounds and not on some other part of the rental agreement which was not set out as a ground. Appel-lee’s motion was calculated to mislead appellants into not excepting.

Appellants,- therefore, by failing to except, did not waive the right to complain on appeal of the rendition of summary judgment, and appellee may not prevent reversal by now urging, for the first time, the exculpatory clause as a ground for summary judgment.

Motion for rehearing overruled.


text:
    R. F. WINSTON et al., Appellants, v. LAKE JACKSON BANK, Appellee.
    No. 1897.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 22, 1978.
    Thomas Osa Harris, Harris & Rea, Houston, for appellants.
    W. Edwin Denman, Wommack, Denman & Hardin, Lake Jackson, for appellee.
   CIRE, Justice.

This is an appeal from a summary judgment rendered in favor of Lake Jackson Bank (“the Bank”) on a promissory note endorsed by appellants Robert F. and Christine Winston.

Appellants urge that it was error to render a summary judgment because there was evidence raising a fact issue as to whether the bank officers breached a fiduciary duty in failing to inform them that by endorsing the note in their individual capacities they were incurring individual liability under sections 3.401 and 3.403 of the Texas Business and Commerce Code.

The note in question was the last in a series of notes executed by R. F. Winston and Associates, Inc., a corporation formed in 1962 by appellant, Robert Winston. The note was secured by a security interest in an “Engineer Program” and was signed by Mr. Winston as agent for the corporation. On the reverse side, the note was endorsed by both Robert and Christine Winston individually at the request of the bank officer.

Appellee moved for a summary judgment, producing the note and an affidavit from the bank president as evidence. In opposing the motion appellants submitted their own affidavits and pleadings wherein they attempted to raise a fact issue with regard to a fiduciary relationship with the bank. This consisted primarily of the following representations: that there had been “extensive prior dealings” between appellants, individually and as a corporation, and the Bank; that Mr. Waltrip, the bank president, had been the financial advisor to both Mr. Winston and the corporation; and that there had been a series of prior corporate notes resulting in an “understanding” that the liability was to be corporate only.

It is true that a fiduciary relationship may arise from informal moral, social, domestic, or personal dealings as well as from technical relationships such as attorney-client. Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948). We do not feel, however, that there is any evidence here to show such justifiable trust and confidence as would create a fiduciary relationship. Other than the general claims of “extensive prior dealings”, appellants allege no specific facts which may be said to demonstrate a fiduciary relationship. As the Texas Supreme Court stated in Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.Sup.1962):

We may assume that respondents did trust Mr. Thigpen; they have testified so time and time again, but mere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship so as to avoid the statute of frauds. Businessmen generally do trust one another, and their dealings are frequently characterized by cordiality of the kind testified to here. If we should permit respondents to set aside their conveyances on such slender evidence, the security of contracts and conveyances in this state would be seriously jeopardized.

Appellants themselves contend that a fiduciary relationship exists where one party is justified in placing confidence in the belief that the other party will act in its interest. Thigpen v. Locke, supra, at 253. Here the evidence shows that appellants had secured a number of loans from the bank and that a debtor-creditor relationship had existed between them for several years. The Supreme Court held in the Thigpen case that “respondents do not testify to facts — other than their own subjective feelings — which show that their relationship . was anything more than a debtor-creditor relationship.” 363 S.W.2d at 253. Accordingly, appellants were not justified in assuming that the Bank would act in their interest.

Appellants further urge that the superior understanding by the Bank of the legal effect of the endorsements raised some sort of duty to explain the legal ramifications thereof. According to appellants, the fact that the personal endorsement will create individual liability is not apparent to a layman. The law is that where no fraud is involved, “a party is charged with having known the legal effect of a contract voluntarily made.” Barfield v. Howard M. Smith Co. of Amarillo, 426 S.W.2d 834, 838 (Tex.Sup.1968).

Finally, appellants contend that the bank officer who instructed Christine Winston to endorse the note effectively misrepresented the purpose and effect of her endorsement. It is argued that his statement that the signature was “primarily to satisfy the bank examiners” gave the impression that the endorsements were mere formalities rather than legally binding acts. We do not construe this statement as a representation of no personal liability. On the contrary, the bank officer had the right to assume the person with whom he was dealing had customary business understanding and knew the effect of a personal endorsement. His statement to Mrs. Winston in no way misrepresented the facts concerning her liability.

The Bank demonstrated as a matter of law that it was entitled to a summary judgment. Since appellants failed to show the existence of a fact issue with respect to their affirmative defense of fiduciary relationship, we affirm the judgment of the trial court.

Affirmed.


author: SPURLOCK, Justice.

text:
    G. E. FRANCIS et ux., Appellants, v. Gene STANLEY et ux., Appellees.
    No. 18022.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 30, 1978.

      John Harvill, Bridgeport, for appellants.
    Clements & Smith and Durant F. Clements, Bridgeport, for appellees.
   OPINION

SPURLOCK, Justice.

Gene Stanley and wife, Joan Stanley sued G. E. Francis and wife, Ruby Francis, in trespass to try title claiming record title to a lake lot. The defendants answered claiming title by adverse possession under the ten year statute of limitations. This appeal is from a judgment for the plaintiffs based on the jury’s failure to find adverse possession.

We affirm.

Plaintiffs hold title to the lot under a deed. They sued under the theory that they are the record title owners. Defendants entered a plea of not guilty and counterclaimed for title by limitation. Defendants have owned several adjoining lots since 1943 and have lived permanently thereon since 1961. The lot in dispute is situated between the defendants’ home and a road. Defendants claim the lot is part of their front yard because they cleared and cleaned up the lot, and have mowed and maintained it since 1945.

The plaintiffs base their claim of ownership on a chain of title from the sovereignty of the soil to them. The chain in pertinent part is as follows:

1930, deed from Clyde Slay to Littleton W. Darnell;
1969, deed from Lois Chiles to Charles R. and Doris Fleming;
1971, deed from Charles R. and Doris Fleming to Jimmy D. Fleming; and 1977, deed from Jimmy D. Fleming to plaintiffs.

The case was submitted to the jury on only one special issue:

“Do you find from a preponderance of the evidence that G. E. Francis and wife, Ruby Francis, held peaceable and adverse possession of the land herein involved, using or enjoying the same, for any period of ten (10) consecutive years between January 1, 1957, through May 5, 1977? “Answer ‘We do’ or ‘We do not’.”

The jury answered “We do not”. Based on the jury’s verdict the trial court rendered judgment that the plaintiffs recover title and possession of the lot from defendants.

Defendants assert the trial court erred in rendering judgment for plaintiffs because there is a break in the chain of title. They also assert that Doris Fleming owns a present interest in the lot and the court erred in proceeding to judgment without her having been joined as a party to the suit. These points of error are discussed together because they both relate to the chain of title.

Since plaintiffs plead ownership by chain of title from the sovereignty of the soil, they had the burden to prove it. Defendants base their claim that there is a gap fatal to proof of a good chain on the fact that record title was conveyed into Littleton W. Darnell and out of Lois Chiles without any conveyance from Darnell to Lois Chiles of record. Thus on the face of the chain recorded there is a gap between Darnell and Lois Chiles. Since the only issue submitted to the jury was on adverse possession, we must assume the trial court found as a matter of law that chain of title into plaintiffs was proved. Defendants so state in their brief but complain only that judgment was rendered for the plaintiffs when the only gap in the chain is that indicated above. Since there is no eviden-tiary point of error on the court’s finding, the question for review is whether there is any evidence in the record that fills the gap and thus supports the court’s finding.

Lois Chiles and Doris Fleming testified that Darnell and Lois Chiles were married in 1931; that Doris Fleming was the only child of the marriage; that she was born in 1936; and that Darnell died intestate in 1937. There was no administration of the estate and no necessity therefor. They also testified that they were the parties to the deeds in the plaintiffs’ chain of title. We hold that this, together with other evidence, is probative evidence to fill the gap in the chain of title. After Darnell died, Lois Chiles and Doris Fleming inherited the lot under the law of descent and distribution. Lois Chiles conveyed her interest to Doris Fleming and her husband, Charles. In turn they conveyed their interest to Jimmy Fleming, who conveyed it to the plaintiffs. These conveyances were filed of record. Thus the chain of title is complete.

Defendants assert the trial court committed fundamental error in proceeding to judgment without joining Doris Fleming, because she allegedly has a present interest in the lot. We fail to discern what interest she could now possess after her deed to Jimmy Fleming. The record reflects this deed conveyed any and all interest she had or would later acquire. Therefore, we find no error.

Even if we had found error, it would not be fundamental error. Fundamental error is error apparent on the face of the record which directly and adversely affects public interest, or amounts to a denial of due process of law, such that a reviewing court can note the error and reverse the judgment of the trial court even though the error was unassigned. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957).

Defendants next assert that fundamental error was committed by the trial court’s denial of their motion to open and close jury argument. For the reasons stated above, such action by the court would not be fundamental error.

Rule 269(a) states the party having the burden of proof on the whole case, or on all matters submitted by the court’s charge, whether upon special issue or otherwise, is entitled to open and close jury argument. Here defendants had the burden of proof on the only matter submitted, adverse possession. Therefore, they were entitled to open and close the argument. They made a timely motion to open and close which was denied by the trial court. This was error.

Plaintiffs claim defendants waived the error because they failed to except to the court’s ruling. We do not agree. Formal exceptions to a court’s ruling on motions are unnecessary under Rule 373 *. Since defendants moved to be allowed to open and close the argument and were overruled, they preserved this point on appeal without exception to the ruling of the court. .

Since we have ruled that error was committed, we must decide whether the error requires reversal. We conclude that it does not. While we recognize that the right to open and close argument is a very valuable one and must be protected, the rule of presumed prejudice is no longer applied to errors relating to jury arguments. Dillingham v. Lynch, 516 S.W.2d 694 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.). Therefore, defendants must show that denial of their right to open and close the argument probably caused the rendition of an improper verdict. Rule 434 *. This they have not done. They do not attempt to show they were prejudiced or harmed by this action of the court.

Further the statement of facts filed in this case does not include the jury argument. Where an incomplete statement of facts has been filed, a reviewing court is precluded from inquiring into any harm which may have occurred from error in failing to allow a party with the burden of proof to open and close jury argument. Phillips v. Southwestern Bell Tel. Co., 559 S.W.2d 464 (Tex.Civ.App. — Houston [14th Dist.] 1977, no writ).

Defendants assert fundamental error was committed in the trial court’s refusal to allow the jury to inspect certain receipts for taxes paid on the lot. Again error, if any, would not be fundamental. However, we find no error because although the tax receipts were marked as exhibits and identified, they were not admitted in evidence. Therefore, the trial court properly refused the jury’s request to inspect them during their deliberations.

Defendants next assert the trial court erred in refusing to grant their motion for judgment non obstante veredicto. In order to appeal from the trial court’s ruling on a motion for judgment n. o. v., the record must show that due notice of the motion was given to all parties and that it was presented to and ruled on by the trial court. Rule 301 *. Producers Inv. Corp. v. Spears, 232 S.W.2d 761 (Tex.Civ.App.—Fort Worth 1950, no writ). The reason for this rule is a reviewing court needs assurance that the motion was brought to the attention of all attorneys of record, litigants and the trial judge, and that the trial court ruled thereon. Here only defendants’ motion appears of record. There is no indication of notice, hearing, or ruling. Therefore, this point is overruled.

Defendants assert the trial court erred in refusing to grant their motion for judgment on their counterclaim for title by limitation, and in limiting the special issue on adverse possession to a period from 1957 through 1977. They assert adverse possession was proved as a matter of law. Thus a no evidence question is raised. If there is any probative evidence to support the trial court’s judgment, it must be affirmed.

There is evidence in the record that defendants on more than one occasion admitted they did not own the lot in question. There is also evidence that other lot owners in this area mow and maintain lots they don’t claim to own in order to keep up the area and make the property they do own look better. We find this evidence sufficiently probative to support the judgment of the trial court. Therefore, its refusal to grant plaintiffs’ motion for judgment was not error.

Plaintiffs claim adverse possession began in 1943. The special issue on adverse possession submitted by the trial court asked whether the jury found adverse possession for any ten consecutive years between January 1, 1957 and May 5, 1977. Plaintiffs claim this was error because it prevented the jury from finding adverse possession from 1943 to 1957. They assert the court’s limitation of the time in which the jury could find adverse possession was error because the statute of limitations was not applicable to Doris Fleming. We disagree.

The evidence is uncontroverted that Doris Fleming was born in 1936 and that Darnell died in 1937. Therefore, Doris Fleming inherited the remainder of the interest in the property subject to her mother’s life estate in a undivided interest. Therefore, Doris had a present possessory interest in an undivided ⅜ of the property upon which limitation could run had she not been a minor at the time. The statute of limitations of ten years does not begin to run against the claims of persons who, when the possession was commenced, were minors. Hays v. Hinkle, 193 S.W. 153 (Tex. Civ.App. — Texarkana 1917, writ ref’d). Since Doris was one year of age when she inherited her interest in the lot and was seven years of age when plaintiffs claim adverse possession began, it was not error for the trial court to limit the time in which adverse possession could have commenced to run to a period beginning on January 1, 1957.

We have considered each point of error asserted. Each is overruled except the point of error on the failure to allow the defendants to open and close jury argument. This point of error is sustained. However, for the reasons stated above the error is harmless.

Judgment of the trial court is affirmed.

       All references to Rules are to Tex.R.Civ.P.


author: HUGHES, Justice.

text:
    Ernest HENDERSON, Appellant, v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellee.
    No. 18040.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 30, 1978.
    Leeper & Priddy, and Charles S. Leeper, Fort Worth, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins, and Mark C. Hill, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Ernest Henderson sued under two insurance policies with Life & Casualty Insurance Company of Tennessee for $40.00 per day of hospitalization. He alleged he had been hospitalized for twelve days as a result of an automobile accident. A jury awarded Henderson $480.00, which covered twelve days’ hospitalization. Attorney’s fees were also awarded. The trial court, granting insurance company’s motion in part, rendered a judgment non obstante veredicto which awarded Henderson only $80.00 damages and denied him attorney’s fees. Henderson has appealed the trial court’s judgment. Insurance company, by cross-points, protests the $80.00 award.

We reverse and render.

Our ultimate decision in this case hinges on whether or not Henderson discharged the burden of negating the exclusion plead by Insurance Company. The exclusion was to the following coverage provision contained in each policy:

“DAILY HOSPITAL BENEFIT — Subject to the terms and conditions hereinafter stated, the Company will pay a daily hospital benefit of $20.00 for each day that the Insured is necessarily confined, under the treatment of a legally qualified physician or surgeon, as an in-patient in a hospital as a direct result of bodily injury caused by accident while this Supplemental Agreement is in force.
“EXCLUSIONS AND LIMITATIONS OF LIABILITY—
“1. The daily hospital benefit is not payable with respect to any hospital confinement which results directly or indirectly from any one of the following causes: “(a) ...
“(b) bodily or mental infirmities or disease in any form or medical or surgical treatment thereof; . . . .”

The parties agree that such burden was on Henderson. Sherman v. Provident American Insurance Company, 421 S.W.2d 652 (Tex.1967); Stroburg v. Insurance Company of North America, 464 S.W.2d 827 (Tex.1971).

According to the facts stated in Henderson’s brief, he had had trouble with rheumatic heart disease, high blood pressure, gout, swelling of his ankles and feet, and his back before the automobile collision occurring on May 12, 1976.

The brief further stated that Henderson was riding as a passenger in his automobile while his wife was driving. Their automobile was struck from the rear and he was thrown against the dashboard. He could not speak and was in great pain. He had not complained of any problems immediately before the collision occurred. His automobile sustained light damage to the left rear bumper and to the dashboard. Upon his arrival at John Peter Smith Hospital by ambulance, Henderson was given shock treatments to his heart. The primary diagnosis, according to the medical records of the hospital was “urethral trauma secondary to Foley catheterzation” and “respiratory arrest and cardiac arrest”. The ambulance report shows Henderson was “dia-phetic, cynanotic, and unconscious with an undetectable pulse”.

Henderson testified that he had worked in the past as a farm laborer operating a sandblaster, concrete form laborer and cement finisher until he stopped working in 1972 due to a back injury. In the collision herein, he was thrown against the dashboard and knocked unconscious. During the day before the collision he had no trouble with his stomach, heart, or back. He had never suffered a heart attack prior to this occurrence. Although he had requested that the insurance company pay the benefits due under the above listed policies of insurance, they did not.

Dr. Evalea Glanges, M.D., was called as a witness for Life and Casualty. Dr. Glanges testified that she was the Assistant Director of Surgery at John Peter Smith Hospital when Henderson was admitted into the intensive care unit with blood coming from his Foley catheter. A suprapubic cys-tostomy was performed — opening the bladder through Henderson’s lower abdominal wall to relieve the bladder of its urinary content on May 12, 1976. He also had a possible heart attack by history with respiratory arrest. Dr. Glanges did not think that the trouble with the urethra was caused directly by the accident. Dr. Glang-es could not say as to whether or not Henderson had the condition prior to the automobile collision. “Respiratory arrest” meant that Henderson was not breathing on his own. He was revived by cardio-pul-monary resuscitation. The instigation of I.V., N.G. suction, and Foley catheterization is a standard procedure in similar emergencies. Foley catheterization had to be done to investigate whether or not Henderson had suffered any internal injuries. Dr. Glanges could not say for a certainty that there was no blood returned before the Foley catheter was inserted. She had no knowledge as to whether or not the bladder was torn until she opened it during surgery. Henderson had no previous history of prior bladder problems or urological work-up, either in the medical records or by personal history.

Dr. Glanges further testified that a person arriving at the hospital in cardio-respi-ratory arrest, as Henderson had, would be hospitalized for at least forty-eight hours, if only for observation. The automobile collision could have caused the respiratory arrest, in her opinion, by a vagal vagel response when the plaintiff hit the seat or something and quit breathing.

Having indulged every intendment reasonably deductible from the evidence, Anglin v. Cisco Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935 (1940), we are still confronted with insurance policies that do exclude payment for hospital confinement which results directly or indirectly from “bodily or mental infirmities or disease in any form or medical or surgical treatment thereof.” In the Stroburg case, supra, cited by Henderson in support of his contention that the jury verdict should be upheld, Chief Justice Calvert specifically pointed out “[t]he instant policy does not exclude loss caused ‘directly or indirectly’ by illness, disease, etc.” (Emphasis ours.) Stroburg did not have the exclusionary clause. This case does.

We agree that Henderson had to negate the exclusion with medical expert evidence. Combined American Insurance Company v. McCall, 497 S.W.2d 350 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.). We hold that Dr. Glanges’ testimony and the hospital records failed to prove that the hospitalization did not result, directly or indirectly, from bodily or mental infirmities or disease. If it proved anything, such testimony and records tended to prove to the contrary.

We overrule the first point of error.

Having overruled the first point of error, it must follow that we overrule the second point of error since Henderson’s attorney’s fees depend on our holding that Life and Casualty was liable for the hospital per diem.

We sustain the insurer’s crosspoint no. 1 and hold that trial court erred in entering judgment for $80.00. The same reasoning supporting our action overruling Henderson’s first point of error applies to this crosspoint.

We sustain the third point of error of Henderson but agree with counterpoint no. 3 of Life and Casualty that failing to assess costs is harmless error. We cure the error by assessing costs against the appellant, Ernest Henderson.

We reverse the trial court’s action in granting Ernest Henderson a judgment for $80.00 and render a take nothing judgment.


author: DODSON, Justice.

text:
    Dorisene GARDNER et al., Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    No. 8927.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 4, 1978.
    Rehearing Denied Dec. 27, 1978.

      Carson Smith & Associates, Carson Smith and Tim L. Hoffman, Amarillo, for appellants.
    Gibson, Ochsner & Adkins, James H. Doores, Amarillo, for appellee.
   DODSON, Justice.

In this worker’s compensation case, Billy Mack Gardner was killed in an automobile-truck collision on Highway 70 in Donley County, Texas. Dorisene Gardner, the surviving spouse, brought this action individually and as next friend of Angela, Billy, Jacqueline and Stanley Gardner, the minor children of the deceased, for survivor death benefits under the Texas Worker’s Compensation Act. The trial court granted a motion for summary judgment made by United States Fidelity and Guaranty Company, the insurance carrier, on the ground that, as a matter of law, Billy Mack was not in the course and scope of his employment at the time of his death. The beneficiaries appeal from the summary judgment entered by the trial court. We determine there is some evidence of probative force to raise the issue that the deceased workman was in the course of his employment at the time of the fatal accident. Reversed and remanded.

The summary motion evidence shows, inter alia, that Billy Mack was employed by the Clarendon Country Club on the day of his fatal accident. As a part of his employment, he was required to regularly work a split shift from 9 or 10 a. m. until 2 p. m. and from 5:30 or 6 p. m. until closing each work day. This working arrangement necessitated two daily trips from his home in Clarendon to the country club, which was located approximately seven miles north from Clarendon on Highway 70. The employer paid Billy Mack $50 per month in addition to his regular salary, because he had to make two trips daily as required by the split shift arrangement.

On July 25, 1975, Billy Mack left the country club at 10 or 11 p. m. The club was closed for the day and he had no further duties to perform on the premises. After leaving the country club, he stopped at a bar which was located on Highway 70 between the country club and his home. Billy Mack remained at the bar until approximately 5:30 or 6 a. m. on July 26, 1975. After leaving the bar he proceeded south a short distance on Highway 70 where his fatal accident occurred. The evidence shows that Highway 70 was the regular, and in fact only, route available for Billy Mack to travel to and from work, and that he sometimes stopped at the bar on his way home from work and remained for several hours before proceeding to his home. No contention is made that he was intoxicated at the time of the accident.

The beneficiaries maintain that the evidence fails to conclusively establish that Billy Mack was not in the course of his employment at the time of the fatal accident and that the evidence is sufficient to raise a genuine issue of fact on the course of employment question. In determining whether the evidence raises a jury issue as to course of employment, we must apply the same test we would apply to a motion by the insurance company for instructed verdict, thereby treating as true the evidence which is favorable to the beneficiaries, indulging in their favor all inferences that can be reasonably drawn from the evidence, and resolving all doubts against the insurance company. Fowler v. Texas Employers’ Ins. Ass’n, 237 S.W.2d 373, 375 (Tex.Civ.App. — Fort Worth 1951, writ ref’d). The rule is also settled that where an “issue or verdict has some support in the evidence, although the great weight and preponderance of the evidence may be the other way,” then the trial court cannot direct a verdict or grant a judgment notwithstanding the verdict on the issue. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933, 937, cert. denied, 358 U.S. 874, 79 S.Ct. 111, 3 L.Ed.2d 105 (1958).

Section 1 of Article 8309, Tex.Rev. Civ.Stat.Ann. (Vernon 1967), provides, in part, that:

The term ‘injury sustained in the course of employment’ . . . shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.

Section lb of Article 8309 also provides, in part:

Unless transportation ... is paid for by the employer, . . . such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment.

Generally, an injury suffered while using the streets and highways in going to or returning from the place of employment is not compensable under the Worker’s Compensation Act. However, when transportation is paid for by the employer, an exception to the general rule may exist. Texas Employers’ Ins. Ass’n v. Inge, 146 Tex. 347, 208 S.W.2d 867 (1948); see also Texas Employers’ Ins. Ass’n v. Byrd, 540 S.W.2d 460 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.); Liberty Mutual Ins. Co. v. Chesnut, 539 S.W.2d 924 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.); Texas Employers Ins. Ass’n v. Adams, 381 S.W.2d 340 (Tex.Civ.App. — Texarkana 1964, writ ref’d n. r. e.).

While we have not found any Texas case directly or nearly in point with the unusual fact situation in the case before us, we are persuaded that the summary motion evidence viewed in light of the Deen test raises a question of fact on the course of employment issue which must be submitted to the jury. In summary, this evidence shows that Billy Mack worked a split shift arrangement for his employer; that the split shift arrangement necessitated two trips each day to and from his place of employment; that he was paid $50 per month for the travel facilitated by the split shift arrangement; that Highway 70 was the usual and direct route to and from Billy Mack’s home and the place of his employment; and that, upon leaving the bar, he returned to his usual route home and was traveling toward his home when the fatal accident occurred. Under these circumstances, we cannot say as a matter of law that Billy Mack was not in the course of his employment at the time of the accident.

The appellants’ first and third points of error are sustained. Our discussion of these points of error is dispositive of this appeal; therefore, we deem it unnecessary to further discuss the appellants’ remaining points of error. Accordingly, the judgment of the trial court is reversed and the cause is remanded to the trial court.


text:
    Warren H. SMITH et ux., Appellants, v. NRC, INCORPORATED, Appellee.
    No. 12727.
    Court of Civil Appeals of Texas, Austin.
    Dec. 20, 1978.
    Rehearing Denied Dec. 20, 1978.

      Malcolm Robinson, Hooper, Robinson & Moeller, Austin,, for appellants.
    Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellee.
   ON SECOND MOTION FOR REHEARING

SHANNON, Justice.

The opinion of this Court filed on November 15, 1978, is withdrawn, and the following opinion replaces it.

Appellants Warren H. Smith and Helen W. Smith, husband and wife, sued appellee NRC, Incorporated, in the district court of Travis County seeking rescission of an executed contract for deed to a lot. The district court entered a take-nothing judgment.

Appellants were residents of Dallas, and wished to build a retirement house near Austin. Appellee interested appellants in its subdivision located on Lake Travis. In May, 1973, the parties signed a contract for deed to purchase lot # 23052 in appellee’s subdivision for $25,700. Appellants obtained a deed to the lot in August, 1973.

Lot # 23052 fronts on Lake Travis and is subject to an easement previously granted to the Lower Colorado River Authority enabling the Authority to inundate the property up to the 715-foot contour line. Lot # 23052 is entirely below the 715-foot contour line, and if the Authority chose to exercise its rights under the overflow easement the lot would be completely under water.

At all times material appellee knew that the lot was below the 715-foot contour line and subject to the overflow easement. No agent of appellee told appellants of the easement. Neither the contract for deed nor appellee’s advertising brochures referred to the overflow easement. At the time the contract for deed was executed, appellants were furnished a document entitled, “Declaration of Reservations Highland Lake Estates . . .’’On page eight at paragraph nineteen of that instrument there appeared the following statement:

“LCRA Overflow Easement:
The Lower Colorado River Authority holds an easement to innundate [sic ] and overflow any portion of the subdivision lying below the contour line 715 feet above sea level. Any such areas shall be subject to such easement, and all structures and improvements therein shall be constructed so as to accommodate any such innundation [sic] or overflow in a fashion approved by the Architectural Committee.” (Emphasis added)

The overflow easement was shown specifically in the policy of title insurance which appellants received several weeks after the contract for deed was executed. Smith testified that he did not learn of the easement until about two years after he signed the contract for deed. Smith could not determine the contour line of his lot short of a survey.

Appellants pleaded fraud as basis for rescission. In support of their fraud allegation, appellants alleged affirmative misrepresentations of fact. Nevertheless, upon trial, without objection, appellants were permitted to prove facts tending to show appellee’s failure to disclose a material fact affecting the value of the lot. As a result, the issue of concealment or failure to disclose was tried by consent. Texas R.Civ.P. 67.

The district court found, among other things, that appellee did not “conceal or fail to disclose” the overflow easement for the reason that: (1) the easement was disclosed in the above quoted “Declaration of Reservations” furnished appellants at the time of purchase and (2) the easement was specifically disclosed in the policy of title insurance furnished appellants with the deed to the lot. The court found further that a person of ordinary intelligence, in the exercise of reasonable diligence, would have been placed on notice by the disclosure of the easement in the “Declaration of Reservations” that the flood easement might affect the lot in question.

The court concluded that appellants . . failed to prove the elements of actionable fraud to invoke the remedy of rescission . . . ”

By entry of the mentioned findings of fact, the district court necessarily followed the rule that the vendor is under a duty to disclose material facts which would not be discoverable by the exercise of ordinary care and diligence or which a reasonable investigation and inquiry would not uncover. Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974); Obde v. Schlemeyer, 56 Wash.2d 449, 353 P.2d 672 (1960); Sorrell v. Young, 6 Wash.App. 220, 491 P.2d 1312 (1971); Keeton, Rights of Disappointed Purchasers, 32 Texas L.Rev. 1 (1953). The parties do not complain of the rule of law by which the court determined the clause.

Appellants’ important points of error are:
(1) “The trial judge erred in concluding that NRC did not conceal and failed to disclose the fact that the lot was totally encompassed by an overflow easement in favor of the Lower Colorado River Authority”; and
(2) “The trial judge erred in concluding that a person of ordinary intelligence' would be placed on notice that the overflow easement might affect the lot in question by the disclosure in the statement of reservations.”

Appellants’ points of error, standing alone, do not indicate whether appellants are complaining that there was “no evidence” or that there was “insufficient evidence” to support the court’s findings. Further analysis is required. The controlling consideration in ascertaining the character of a point of error directed at the state of the evidence is not whether the point uses the preferable, or even the proper, terminology, but instead is whether the point is based upon and related to a particular procedural step in the trial and appellate process and is a proper predicate for the relief sought in the appellate court. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 362 (1960).

In this case, the trial was to the court and appellants’ points are not based upon and related to. any particular step in the trial. With respect to the relief sought, appellants’ only specific prayer in the brief is that this Court reverse the judgment and render judgment rescinding the contract. “No evidence” points are points which call for reversal of a trial court’s judgment and rendition of judgment for appellant. “Insufficient evidence” points of error are those which call for a reversal of the trial court’s judgment and remand of the cause for retrial. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, supra.

Appellants’ points of error are “no evidence” points, Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164 (1948), which necessarily assert that all of the evidence showed that (1) appellee concealed or failed to disclose the overflow easement and (2) a person of ordinary intelligence, in the exercise of ordinary care, would not have been placed on notice by the disclosure in the Declaration of Reservations that the flood easement might affect the lot. Because appellants filed no points of error complaining of insufficient evidence, we have no jurisdiction to pass upon that question. Wisdom v. Smith, supra.

Appellants recognize, of course, the existence in evidence of the title policy setting out the overflow easement and the disclosure contained in the Declaration of Reservations. Nevertheless, appellants argue that this Court should give that evidence no effect in law. If both pieces of evidence were given no effect, then indeed all of the evidence would be that appellee failed to disclose the overflow easement.

Appellee did not discharge its duty to disclose by sending appellants the title insurance policy that specifically set out the overflow easement. The purpose of the duty to disclose is to reveal material facts to the prospective purchaser before the contract is entered into. Appellants received the title policy weeks after the consummation of the contract for deed. The after-the-fact receipt of the title policy did not serve the purposes of disclosure.

We have decided upon motion for rehearing that the disclosure contained in the Declaration of Reservations, furnished by appellee to appellants, is some evidence that appellee did not fail to disclose the overflow easement. It is true that the reference to the overflow easement is found at paragraph nineteen on page eight of the Declaration of Reservations. It is also true that paragraph nineteen is general in nature and does not list lot # 23052 as one that is below the 715-foot contour line.

Appellee asserts that the format of the Declaration of Reservations is dictated by the Office of Interstate Land Sales Registration, Department of Housing and Urban Development. Appellants have shown this Court nothing to the contrary. Appellee admits that its Declaration is not a model of clarity, but insists that the composition of the document is due solely to governmental regulation. It is of some interest in this connection that one of the purposes of the Interstate Land Sales Full Disclosure Act, 15 U.S.C.A. § 1701 et seq. (1974), which requires, among other things, the approval by federal authority of a subdivider’s Declaration of Reservations, is to give “. the purchaser the information necessary to make his own determination of the quality of what is being sold.” (Emphasis added) Senate Committee on Banking and Currency, Housing and Urban Development Act of 1968, Senate Report No. 1123, 90th Cong., 2d Sess. 110 (1968). Although the provisions of the Act may be instructive with respect to the format of the Declaration, the Act, of course, is not dispositive.

As we understand the rule of law under which the case was tried, appellee did not have the absolute legal duty to disclose the specific lots which were subject to the overflow easement. Instead, the appellee’s duty was only to disclose material facts which would not be discoverable by the exercise of ordinary care and diligence or which a reasonable investigation and inquiry would not uncover. In considering a no evidence point, the reviewing court must reject all evidence contrary to the court’s findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). Viewing the evidence most favorably to the trial court’s findings, we must conclude that the furnishing to appellants of the Declaration of Reservations containing the reference to the overflow easement is some evidence in support of the finding that appellee did not conceal or fail to disclose the easement.

We do not embrace appellants’ argument that this Court should not regard the disclosure of the overflow easement contained in the Declaration of Reservations as evidence because of the disclosure’s general nature and its location in the Declaration. Although appellants’ argument has appeal under the facts of this case, it is not the law. Since the disclosure is some evidence in support of the court’s finding, point of error one is overruled.

With respect to point of error two, appellants possessed sufficient sophistication to know that they were entering into a significant financial transaction, a contract to purchase a lot for a large sum of money. Prior to their signing the contract, appellee furnished appellants with the Declaration of Reservations that supplied information about the subdivision and contained the reference to the overflow easement. The Declaration of Reservations was attached to and incorporated into a document entitled “Statement of Reservations, Restrictions, Taxes and Assessments.” Appellants signed the Statement of Reservations. Since appellants signed the Statement of Reservations, they should have read the Statement of Reservations and the attached and incorporated Declaration. No contention was made that appellee, by fraud or ruse, inhibited appellants from reading those documents. As a result, appellants’ failure to read the Declaration does not insulate them from being charged with knowledge of what they could have learned by reading the instrument. See Indemnity Ins. Co. v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553 (1937); Gulf Oil Corp. v. Spence & Howe Construction Co., 356 S.W.2d 382 (Tex.Civ.App.1962), affirmed, 365 S.W.2d 631 (Tex.1963). If appellants had read the Declaration, they would have known that some portions of the subdivision were subject to an overflow easement. The district court could have reasonably concluded that appellants, possessed of such information, should have made further inquiry as to whether the lot in question was subject to the overflow easement. Further investigation concerning the overflow easement was particularly pertinent since appellants’ intended lot was located on a gradual slope at the water’s edge, a site more probably subject to an overflow easement than other lots. Very little investigation at that time probably would have revealed to Smith that the lot was subject to the easement. The evidence was that when Smith did in fact learn of the existence of the easement, it did not take him long to discover that the easement affected his lot. Point of error two is overruled.

The judgment is affirmed.

      . The briefs make no mention of Tex.Bus. & Comm.Code Ann. § 27.01 (1968). The case was tried without reference to § 27.01. Accordingly, we do not regard any issues raised by that statute to be before this Court.