author: COULSON, Justice.

text:
    Les FLEMING, Appellant, v. James H. CAMPBELL et al., Appellees.
    No. 1372.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 5, 1976.
    Rehearing Denied May 26, 1976.

      Les Fleming, Houston, for appellant.
    Michol O’Connor, Kronzer, Abraham & Watkins, Houston, for appellees Robert Ballard and Kronzer, Abraham & Watkins.
    James H. Campbell, Houston, for appellee Campbell.
   COULSON, Justice.

This is a summary judgment case on an alleged oral contract. Les Fleming, an attorney, sued attorneys James H. Campbell, Robert Ballard, and the law firm of Kron-zer, Abraham & Watkins to recover one-half of the attorney’s fees paid in a case that was settled for $127,500. Fleming alleged that George Murphy, the claimant in the settled suit, was his client and that he had referred Murphy’s case to Campbell, who orally agreed to pay Fleming a referral fee of one-half of the attorney’s fees in the case. The trial court granted a summary judgment that Fleming take nothing. We affirm.

Fleming sent Murphy to Campbell in order that Campbell might assess Murphy’s cause of action. Fleming alleged that Campbell told him after consulting with Murphy that he, Fleming, would receive a referral fee of one-half of the attorney’s fees paid in Murphy’s case. Later, Campbell referred Murphy to Ballard, an attorney with the law firm of Kronzer, Abraham & Watkins. Campbell and Ballard agreed to split the attorney’s fees in Murphy’s case. Fleming claimed that Ballard knew of the alleged referral fee contract between himself and Campbell.

Murphy’s case was settled. One-half of the attorney’s fees in the case were paid to Campbell, the other half going to Ballard and the law firm of Kronzer, Abraham and Watkins. It is undisputed that Fleming obtained a promise, if any, from Campbell after he had sent Murphy to Campbell and after an attorney-client relationship was created between Murphy and Campbell. Furthermore, Fleming admitted that Murphy was unaware of the fee arrangement he claimed existed between himself and Campbell.

Disciplinary Rule 2-107 of the State Bar Rules provides:

(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made. .

State Bar of Texas, Rules and Code of Professional Responsibility, DR 2-107(1973) (located immediately following Tex.Rev. Civ.Stat.Ann. art. 320a-1 (1973)). We hold that the referral fee contract claimed by Fleming is as a matter of law against the public policy expressed in Disciplinary Rule 2-107 that no attorney’s fees shall be divided unless the client’s consent is obtained after full disclosure. Fleming’s claimed referral fee contract being violative of our public policy is void and unenforceable. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947).

Furthermore, Fleming’s claimed contract cannot stand as a matter of law because a past or previously rendered consideration which imposed no legal obligation at the time it was furnished will not support a subsequent promise to confer a benefit. 13 Tex.Jur.2d Contracts § 65 (1960). Here, Fleming admitted that the consideration of sending Murphy to Campbell occurred prior to Campbell’s promise of a referral fee. This past consideration imposed no legal obligation to support Campbell’s subsequent promise to pay Fleming one-half of the attorney’s fees in the ease.

Ballard and the law firm of Kronzer, Abraham & Watkins were under no duty to pay Fleming any fee. Their mere knowledge of Campbell’s promise to pay Fleming one-half of the attorney’s fees in Murphy’s case was in no way binding upon them.

Affirmed.

BROWN, C. J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    CITIZENS STATE BANK OF CORRIGAN, Texas, Appellant, v. J. M. JACKSON CORPORATION, Appellee.
    No. 1335.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 5, 1976.
    Edwin Lamm, Houston, for appellant.
    Marc P. Gordon, B. K. Watson, III, Lack-shin, Nathan & Berg, Houston, for appellee.
   COULSON, Justice.

This is a summary judgment case. Citizens State Bank of Corrigan, Texas sued J. M. Jackson Corporation to recover $12,-008.25 paid by Jackson to Jetero Underground Utilities Contractors, Inc. in satisfaction of contractual obligations owed by Jackson to Jetero. Citizens alleged that Jackson had been notified of an assignment to it of the monies owed to Jetero. Citizens claimed that Jackson had disregarded the notice of assignment and paid directly to Jetero all monies owed by Jackson to Jete-ro. The trial court granted Jackson’s motion for summary judgment. We affirm.

On November 2, 1971, Jetero sent invoices to Jackson in the sums of $5,973.50, $2,973.75 and $3,061. The invoices were for work performed by Jetero pursuant to a contract with Jackson. At the bottom of each invoice appeared the following: “MAKE ALL CHECKS PAYABLE TO CITIZENS STATE BANK AND JETERO UNDERGROUND UTILITY CONTRACTORS, INC.”. On November 3, 1971 Citizens loaned Jetero $6,000. As security for the payment of this loan, Jetero executed and delivered to Citizens a security agreement granting a security interest in the invoices. On November 10, 1971 Jackson paid the invoices by check payable to Jetero for $12,008.25. On November 11,1971, Citizens loaned Jetero an additional $4,000 relying on the same collateral, the invoices. Jetero defaulted on its loans with Citizens.

Section 9.318(c) of the Texas Business & Commerce Code states:

The account debtor is authorized to pay the assignor until the account debtor receives notification that the account has been assigned and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the account debtor, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless he does so the account debtor may pay the assignor.

The sole question before the trial court and before this court is whether the notation on the invoices was a notification reasonably identifying the rights of the assignee, Citizens, as provided for by the Texas Business & Commerce Code. We hold that the notations at the bottom of the invoices are not sufficient as a matter of law to have put Jackson on notice that Jetero’s right to payment had been assigned. The notation on the invoices does not reasonably identify any rights existing in Citizens. Furthermore, Jackson received the invoices before the assignments were made by Jetero to Citizens. Jackson could not be put on notice of an assignment prior to the time that that assignment existed.

Affirmed.


text:
    LEHMAN BROTHERS, INCORPORATED, Appellant, v. SUGARLAND INDUSTRIES, INC., Appellee.
    No. 1327.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 5, 1976.
    Rehearing Denied May 26, 1976.

      David T. Harvin, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellant.
    John L. McConn, Jr., Robert M. Hardy, Jr., Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   COULSON, Justice.

This is a summary judgment case. Lehman Brothers, Incorporated sued Sugarland Industries, Inc. for $600,000 claimed as a 2% finder’s fee owed by virtue of a contract. On the motion of Sugarland, summary judgment was entered that Lehman Brothers take nothing. We reverse and remand.

As movant for summary judgment Sugarland has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976). The sole issue is whether Sugarland has met its burden.

Lehman Brothers is an investment banking and stock brokerage house, duly licensed in Texas as a securities dealer. Sug-arland is a closely held Delaware corporation. In early 1970, Sugarland’s principal assets were 7,100 acres in Fort Bend County. The directors of Sugarland resolved to find an entity with which to merge or arrange some form of a tax-free exchange of stock. Lehman Brothers was employed by Sugarland on an exclusive nine month basis to find a buyer of Sugarland’s stock or a merger partner for Sugarland.

After the expiration of the initial nine months, the finder’s agreement between Sugarland and Lehman Brothers was extended. Lehman Brothers found White & Hill, a partnership, which was interested in buying Sugarland. An agreement was reached whereby White & Hill would purchase 78% of Sugarland’s stock for $23,800,-000. Sugarland would then be dissolved and White & Hill would receive a major portion of Sugarland’s realty in exchange for its 78% of Sugarland stock. The holders of approximately 90% of Sugarland’s stock approved this agreement.

Because a minority of Sugarland’s shareholders owning 1.47% of its stock opposed the agreement between Sugarland and White & Hill, a restructuring of the transaction was agreed whereby Sugarland would sell 5,900 acres of its property to White & Hill for cash and a promissory note. An earnest money contract containing the sale agreement was executed between White & Hill and Sugarland’s president. Sugarland’s board of directors approved the sale.

An action was brought in the Chancery Court of New Castle County, Delaware by the minority group of Sugarland shareholders to enjoin Sugarland from receiving votes to approve the sale to White & Hill. The injunction was issued and it was further ordered that Sugarland use its best efforts to sell the property and in no event accept an offer upon terms less favorable than those offered by a prospective purchaser located by the minority group of Sugarland shareholders.

In compliance with the Delaware court’s order, Sugarland put its property up for competitive bids and sold it to the Gerald D. Hines Interests for the highest bid of $37,-000,000.

In Rogers v. Ellsworth, 501 S.W.2d 756, 757 (Tex.Civ.App.-Houston [14th Dist.] 1973, writ ref’d n. r. e.), this court stated: that Texas law recognizes a distinction between finders and stockbrokers; that a finder is an intermediary who contracts to find and bring parties together, leaving the ultimate transaction to the principals; that a finder is not precluded from recovering his fee by statutes requiring a broker to possess a license; and that a finder’s function ceases when negotiations between the principals begin.

Sugarland contends that the Texas Real Estate License Act, in force at the time of this contract precluded, a finder’s fee exception because of its unique language which defined a Real Estate Broker as one who:

Procures or assists in the procuring of prospects, calculated to result in the sale, exchange, leasing or rental of real estate.

Tex.Rev.Civ.Stat.Ann. art. 6573a § 4(l)(j) (1969). We do not reach the question of whether an unlicensed finder is precluded from recovering his fee by reason of the Texas Real Estate License Act governing this suit.

Lehman Brothers contends that it was employed to find a buyer of Sugar-land’s stock or a merger partner for-Sugar-land, not to procure a purchaser for Sugar-land’s real estate. Sugarland contends that Lehman Brothers is seeking to recover a commission for locating a buyer for its Fort Bend County realty. Sugarland argues that the sale for which a commission is claimed determines if one is engaged in the real estate business and thereby required to be licensed under the former Texas Real Estate License Act and recover a commission thereunder.

Whether Lehman Brothers was employed to procure a buyer of Sugarland’s realty or to procure a buyer of Sugarland’s stock is a disputed material question of fact. The nature of the contract is the controlling question, not the form which the principals’ transaction ultimately takes. As stated in Thywissen v. FTI Corporation, 518 S.W.2d 947, 950 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n. r. e.):

The essential question presented by the rationale of Hall [v. Hard, 160 Tex. 565, 335 S.W.2d 584], is whether, the agreement . . . contemplated the sale of real estate or the sale of securities.

Even if we were to accept Sugar-land’s argument that the ultimate transaction being a sale of realty governs Lehman Brothers’ right to a finder’s fee, they would still not have established their right to judgment as a matter of law. The Texas Real Estate License Act governing this suit provided:

The provisions of this Act shall not apply to the advertising, negotiation or consummation of any purchase, sale, rental or exchange of, or the borrowing or lending money on, real estate by any person, firm, or corporation when such person, firm or corporation does not engage in the activities of a Real Estate Broker as an occupation, business or profession on a full or part-time basis.

Tex.Rev.Civ.Stat.Ann. art. 6573a § 6(1) (1969). Accepting Sugarland’s argument that Lehman Brothers was employed to act as a Real Estate Broker, a question of fact would still exist as to whether Lehman Brothers could prove an exemption under § 6(1) of the Act.

Sugarland contends that the contract with Lehman Brothers was dependent upon the consummation of a sale or trade with the principal found by Lehman Brothers. The nature of the contract between Lehman Brothers and Sugarland is a fact question which precludes the granting of a summary judgment.

Material questions of fact being present, and Sugarland not having shown itself entitled to judgment as a matter of law, the summary judgment that Lehman Brothers take nothing is reversed and the cause remanded for trial.


author: CIRE, Justice.

text:
    Jerry HEMPHILL, also known as Jerry Hemphill, Jr. Individually and doing business as Jerry’s Wholesale, Appellant, v. GREATER HOUSTON BANK, Appellee.
    No. 1389.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 5, 1976.

      Dale French, Dameris & French, Houston, for appellant.
    John R. Jones, Franklin, Kelly, Graham & Killough, Houston, for appellee.
   CIRE, Justice.

This is an appeal from a summary judgment for appellee Greater Houston Bank on two promissory notes. The two notes were executed by appellant Jerry Hemphill, payable to appellee. Both notes were secured by the inventory and accounts receivable of appellant’s business.

After appellant filed a general denial, appellee filed its motion for summary judgment. The motion was supported by the affidavit of appellee’s vice-president, to which were attached copies of the two notes. Appellant then filed his first amended answer and counterclaim and his affidavit in opposition to appellee’s motion for summary judgment. In his counterclaim and affidavit appellant stated there was a third note executed by him in favor of appellee, and that this third note was secured by appellant’s automobile. Appellant further stated that “[a]fter the Plaintiff declared all notes immediately due and owing, Plaintiff breached their agreement by wrongfully taking possession of my automobile in a non-peaceable manner, against the will of my wife and I, and without our consent.” On the basis of these allegations, appellant sought $4,000 damages. Appellee did not file an answer to the counterclaim or amend its motion for summary judgment.

The county court granted summary judgment for appellee in the amount of $4,049.32 on the two notes, plus $404.93 contractual attorney’s fees, and dismissed appellant’s counterclaim without prejudice. The court did not sever the counterclaim from appellee’s suit on the two notes.

Appellant’s first two points of error complain that the summary judgment was improperly granted because appellee failed to prove there was no genuine issue of material fact. Appellee’s summary judgment evidence established that appellee was the owner and holder of the notes, that the notes were in default, the amounts due on the notes, and that appellant was the maker of the notes. Appellant did not deny any of these facts. Appellee was therefore entitled to recovery unless appellant established a defense. Tex.Bus. & Comm.Code Ann. § 3.307(a), (b).

Even if we were to construe appellant’s counterclaim as a defensive plea for an offset, such a defense must be affirmatively pleaded. American National Insurance Co. v. Fox, 184 S.W.2d 937 (Tex.Civ.App.-Fort Worth 1945, writ ref’d w. o. m.). In order to prevent rendition of a summary judgment on the basis of the allegation of an affirmative defense, the non-movant must offer proof that there is a genuine issue of fact material to his affirmative defense. Torres v. Western Casualty & Surety Co., 457 S.W.2d 50, 53 (Tex.Sup.1970). Appellant’s summary judgment evidence consisted only of his affidavit. The affidavit alleged that appellee had breached its agreement in the third note (secured by appellant’s automobile), by wrongfully repossessing the automobile. The alleged note and agreement, or sworn or certified copies thereof, were not attached to the affidavit as required by Tex.R.Civ.P. 166-A(e), and were not attached to appellant’s pleadings or otherwise made a part of the record. The affidavit was therefore insufficient to raise a fact issue on an affirmative defense of offset. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1962). The summary judgment on the two notes proved by appellee was properly granted.

Appellant’s third point of error complains of the dismissal of his counterclaim. Although appellant failed to submit any evidence tending to show his counterclaim arose out of the same transaction as the main lawsuit, he did allege a valid permissive counterclaim under Tex.R.Civ.P. 97(b). As a claim for breach of contract, the counterclaim was not barred by subsection (g) of Rule 97, and was improperly dismissed.

It is our opinion that the improper dismissal of appellant’s counterclaim “affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties.” Tex.R.Civ.P. 434. As to that action, we order a severance and a partial remand. Huffington v. Upchurch, 532 S.W.2d 576 (Tex.Sup.1976).

That part of the judgment granting summary judgment for appellee on the two notes sued upon is affirmed. That part of the trial court’s judgment dismissing appellant’s counterclaim is severed, reversed and remanded to the trial court.

Affirmed in part; reversed and remanded in part.


author: SHANNON, Justice.

text:
    Manning C. CLEMENTS et ux., Appellants, v. STEWART TITLE GUARANTY COMPANY, Appellee.
    No. 12336.
    Court of Civil Appeals of Texas, Austin.
    May 5, 1976.
    Rehearing Denied May 19, 1976.

      Hawthorne Phillips, Phillips & Norris, Austin, for Manning C. Clements, et ux.
    Stewart J. Alexander, San Antonio, for J. A. Caballero, et ux.
    Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellee.
   SHANNON, Justice.

Appellants, Manning C. Clements and wife, Winn A. Clements, filed suit in the district court of Hays County against J. A. Caballero and wife, Rose B. Caballero, and appellee, Stewart Title Guaranty Company, alleging the loss of an interest in land. As against appellee, appellants sought to recover under the terms of an Owner’s Policy of Title Insurance issued by appellee to appellants. After trial to a jury, judgment was entered in favor of appellants against the Caballeros for $2,000.00. The judgment also provided that appellants take nothing from appellee title company. The Caballeros failed to perfect their appeal by filing an appeal bond. Previously, we granted appellee’s motion to dismiss the attempted appeal of the Caballeros.

In July of 1971, appellants purchased two adjacent parcels of land near Wimberley in Hays County. One tract contained 1.395 acres and the other tract 34.43 acres. Appellants bought the smaller parcel from J. A. and Rose B. Caballero, and the larger parcel from the A. C. Fridge estate. Appel-lee issued an owner’s title policy to appellants covering both tracts of land.

Both parcels of land were separated from the public road by the Pierce Ranch. There was one existing improved roadway which provided access from the public road to appellants’ property. That roadway crossed the Pierce Ranch.

Caballero, in inducing appellants to purchase the property, represented to appellants that a good and valid easement existed across the Pierce Ranch making possible the continued use of the roadway.

After appellants purchased the property, the foreman of the Pierce Ranch told appellants that he planned to fence off the roadway. He also informed appellants that they had no easement across the Pierce Ranch although their deed from the Caballeros purported to convey such an easement. The fence was built shortly thereafter and appellants were denied the use of the roadway.

The Caballeros’ deed from A. C. Fridge conveying the 1.395 acres contained what purported to be an easement across the Pierce Ranch. With respect to that transaction, appellee had also issued an owner’s title policy to the Caballeros.

The Court submitted seven special issues to the jury. The jury answered that the Caballeros represented to appellants that they owned an easement through the Pierce Ranch, and that, in fact, they did not own such an easement. The jury responded further that appellants would not have purchased the property without an easement across the Pierce Ranch. The jury answered further that the market value of the 1.395 acres with the easement was $49,-500.00 and the market value of the same tract without the easement was $47,500. In response to the special issues six and seven the jury answered that the market value of appellants’ entire property with the easement was $79,500.00 and the market value of the same property without the easement was $71,300.

Upon appellee’s motion, the district court disregarded the answers of the jury to special issues six and seven. As previously written, the judgment provided that appellants recover $2,000 from the Caballeros and nothing from appellee.

By their first point of error, appellants complain that the district court erred in holding that the title insurance policy did not insure against any loss suffered by reason of the failure of title to the easement conveyed to them by the Caballeros. We will sustain that point of error.

Appellee’s title policy provided in part that appellee guaranteed the insured that the insured had “. . . good and indefeasible title to the estate or interest in the land described or referred to in this policy.”

In Schedule A of the policy the estate or interest in the land insured by the policy was stated to be “FEE SIMPLE.” In the second paragraph of Schedule A the land referred to in the policy was described as follows:

FIRST TRACT: 1.395 acres of land, more or less, out of the JOSEPH D. RICE SURVEY NO. 10, in Hays County, Texas, and being the same property conveyed by deed dated July 1, 1971, from J. A. Caballero and wife, Rose B. Caballero, to Manning C. Clements and wife, Winn M. Clements, said deed having been filed for record in the office of the County Clerk of Hays County, Texas, on July 23, 1971, under Clerk’s file No. 72736.”

In Schedule B, the policy specifies five exceptions from coverage. Schedule B excepts from coverage a “walkway” easement along the bank of the Blanco River. Schedule B, however, does not mention the purported easement which is the subject of this appeal.

On page three of the deed from the Caballeros to appellants there appears the following description of the purported easement. That description provides as follows:

“ROADWAY EASEMENT NO. TWO: That roadway, as the same now exists on the ground, beginning in the most Northern line of the above described property hereby conveyed and continuing in a Northwesterly, Northerly and Northeasterly direction to where the said roadway crosses the most Easterly line of that property this date being conveyed by F. Fox Benton, Independent Executor of the Last Will and Testament and Codicil of Aide Campbell Fridge, Deceased, to the said Manning C. Clements and Winn M. Clements; Thence continuing along the said roadway as the same now exists on the ground, over and across that tract of land heretofore described in and conveyed by a deed dated September 1,1968, now of record in Vol. 226, Pages 11-15, Hays County Deed Records, wherein J. L. Duffy was grantor and Lewis L. Pierce, et ux., were grantees, in a Northerly or Northeasterly direction to its intersection with that Public Road known as the Old Bendigo Road . . .”

Appellee’s position is that the easement was not described as a part of the property or estate insured and that it assumed no contractual responsibility concerning the title to the easement.

We will reverse the judgment for the following reason. A policy of insurance providing for coverage against losses of title in general, except for certain designated risks, includes loss from every cause not expressly excepted. See San Jacinto Title Guaranty Company v. Lemmon, 417 S.W.2d 429 (Tex.Civ.App.1967, writ ref’d n. r. e.).

Appellee guaranteed generally to appellants that appellants had good title to the interest in the land described or referred to in the title policy. The land referred to in the title policy was 1.395 acres of land being the same property conveyed by deed dated July 1, 1971, from J. A. Caballero and wife, Rose B. Caballero, to Manning C. Clements and wife, Winn M. Clements. In that deed the purported easement was set out. Although in Schedule B appellee excluded from coverage the “walkway” easement along the bank of the Blan-co River, Schedule B did not specifically exclude the purported easement in issue from coverage.

Appellee urges that the district court correctly entered judgment in its favor because appellants failed to obtain a jury finding as to the proper measure of damages. In this connection appellee points out that the easement in special issues six and seven was not denominated “Easement No. Two.” In addition, appellee says that special issues six and seven did not purport to place any limitation on the purposes for which such easement was to exist or did not limit the route the same might take across the Pierce Ranch. The time for appellee to complain as to the form of the damage issues was in the trial court. Appellee did not level any objections to the damage issues. Any complaint which ap-pellee might have had with respect to the damage issues was thereby waived. Tex.R. Civ.P. 272.

Appellants are entitled to recover the value of the outstanding interest, “Easement No. Two,” in connection with their entire property. The jury determined that value to be $8,200. Appellants are not entitled to a total recovery from both parties of more than $8,200.

As previously written, the district court entered judgment in favor of the appellants against the Caballeros for $2,000.00. That judgment is now final.

The judgment that appellants take nothing from appellee is reversed. Judgment is here rendered for appellants against appel-lee insurance company for $8,200. Judgment is also here rendered that appellants may not realize more than a combined total of $8,200.00 from both the appellee insurance company and the Caballeros.

Reversed and Rendered.


author: PER CURIAM.

text:
    Margarita P. JUAREZ et al., Appellants, v. Joe H. MARCHAN et al., Appellees.
    No. 1124.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 6, 1976.
    L. Aron Pena, Pena, McDonald, Prestía & Zipp, Edinburg, for appellants.
    Menton Murray, Jr., Harlingen, for appel-lees.
   OPINION

PER CURIAM.

This is an attempted appeal from a judgment entered by the Judge of the 197th District Court of Cameron County on February 13, 1976. On April 14, 1976, the appellant tendered a transcript to the Clerk of this Court for filing. At that time, the appellant was advised by the Clerk that there were certain problems with the procedural steps taken in the appeal and that the transcript should be amended if possible. On April 30,1976, the Clerk again informed the appellant that his appeal was not properly before this Court and advised him that unless the problems were corrected, the appeal would be dismissed. The transcript indicates that the appellant’s appeal bond was not filed until March 19, 1976. This is 35 days after the final judgment was entered by the trial court. Rule 356, T.R.C.P. requires that an appeal bond, when necessary, be filed within 30 days after rendition of judgment in order to properly perfect an appeal. The requirement that an appeal bond be filed within 30 days after rendition of judgment is mandatory and jurisdictional to an appeal. The Glidden Co. v. The Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956). Martinez v. Euler, 524 S.W.2d 814 (Tex.Civ.App.-Corpus Christi 1975, no writ).

The Court, after reviewing the record on file, is of the opinion that the appeal should be dismissed for lack of jurisdiction.

Therefore, the cause is dismissed with costs assessed against appellant.

Appeal dismissed.


author: WALTER, Justice.

text:
    Mary J. FIELD, Appellant, v. The CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
    No. 4913.
    Court of Civil Appeals of Texas, Eastland.
    May 6, 1976.
    Bob Hanna, Joanne Strauss, Abilene, Truman P. Kirk, Cisco, for appellant.
    Aubrey L. Roberts, Jr., Sweetwater, for appellee.
   WALTER, Justice.

This is a workmen’s compensation case against The Charter Oak Fire Insurance Company. The jury found Mary J. Field did not receive an injury. From a take-nothing judgment, she has appealed.

She contends the evidence conclusively establishes as a matter of law she did receive an injury. She also contends the finding she did not receive an injury is against the weight and preponderance of the evidence.

Mrs. Field testified, in part, as follows:

“Q. Now, on January 23, 1973, what transpired that was any different from any other day?
A. The 23rd?
Q. I mean, the 29th. How did you get hurt?
A. How did I get hurt? It was break time, I’m not sure of the time, I think our break was at 10 until 10, and I know I remained at my machine; I believe I was putting my tickets on my work sheet, or making out my work sheet; I could possibly have been cutting me some more work, and I did this, and I started to get up out of my chair, and my feet, or heels slipped on the concrete, and I lost my balance and I either hit the chair, or ... I really don’t know how the chair was turned over, but I turned it over and I fell into the chair, and then onto the floor, as I was grasping for the table that my tacker was on.
Q. And what, if anything did you feel at that time?
A. I felt pain.
Q. Where?
A. In my lower back.”

Mrs. Field continued to work until February 22nd at which time she went to Dr. Heard, a chiropractor who did not appear as a witness.

Plaintiff started working at Hollywood Vassarette in Eastland in 1959. Following an operation on her back in 1966 or 1967, she returned to work until she took time out for a gallbladder operation. She is about five feet six inches tall, weighs approximately two hundred and twenty-five pounds, and is 44 years of age.

Several doctors testified about the nature and extent of her back problem, but there were no witnesses to the event she contends was the cause of her disability. Her doctor testified, in his opinion, Mrs. Field had a ruptured disc. One of the insurance company’s doctors testified her discomfort was caused by “natural aging process from her stature and her build.” By filing a general denial the insurance company put in issue and placed on Mrs. Field the burden of introducing evidence and securing a finding that she did receive an injury. Rule 92, T.R.C.P.

It is well settled that a jury is not required to believe an interested party’s testimony. Broesche v. Bullock, 427 S.W.2d 89 (Tex.Civ.App.-Houston (14th Dist.) 1968, writ ref. n.r.e.). Mrs. Field’s testimony raised a fact issue only because she was an interested party. Before such testimony could be considered as conclusively establishing as a matter of law that she sustained an injury, her testimony would have to be clear, direct, and positive and free from any circumstances tending to discredit or impeach her testimony. This exception is applicable only when the opposite party has the means and opportunity of disproving the testimony of the interested witness and fails to do so. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965). The exception is not applicable.

We have considered the entire record and hold the finding of no injury is not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Karen Elma LEHMANN, Appellant, v. Andrew L. LEHMANN et ux., Appellees.
    No. 17747.
    Court of Civil Appeals of Texas, Fort Worth.
    May 7, 1976.

      Stilwell & Smith, and Randall S. Boyd, Lewisville, for appellant.
    Seay, Gwinn, Crawford, Mebus & Blake-ney, and Charles C. Frederiksen, Dallas, for appellees.
   OPINION

MASSEY, Chief Justice.

The appeal is from order granting Petition for Writ of Habeas Corpus under V.A. T.C., Family Code, Sec. 14.10, “Habeas Corpus,” as applied to minors, Michael John Lehmann, Deanna Michele Lehmann, and Marni Lyn Lehmann.

By grant of the writ said minors were freed from the unlawful possession exercised over them by their mother, Karen Elma Lehmann. Apparent in the trial court was an order of a court of competent jurisdiction in the State of Minnesota which placed custody of the children in their father, Richard Andrew Lehmann, “subject to physical placement of said minor children being in the paternal grandparents, Andrew L. Lehmann and Gertrude D. Lehmann

It is elemental that a minor’s legitimate custody is in his lawful custodian where by order of the court such custody is placed in a person. Any other person found in possession of such a minor without permission of the court or of the lawful custodian appears before the law, prima facie, as one who is depriving the minor of his liberty-

In proceedings of habeas corpus the applicant for the writ is the person for whom relief is sought by reason of his being illegally confined or restrained within the district or county, and it is of no importance that the petition for the writ be signed and presented by some other person. 27 Tex. Jur.2d, p. 723, “Habeas Corpus,” Sec. 46, “In general; Who may apply.”

We have made the statement at this initial part of the opinion because the parties to the instant litigation appear uncertain as to what is or may be involved, particularly relative to the right to relitigate the matter of custody of the minors who seek delivery by writ of habeas corpus.

It was the paternal grandparents who signed and presented the petition in the District Court of Denton County, Texas, but it was the minors who prevailed. Their mother, Karen Elma Lehmann, brought the appeal.

Order affirmed.

In February of 1975 the parents of the minors were divorced in Minnesota, and the mother was granted custody. She was not, however, permitted to remove the children from the state absent authority by permission of the court. In disregard, knowingly or unknowingly, Mrs. Lehmann removed the minor children to the State of Texas. The move occurred in May of 1975.

In July of 1975 the father of the children petitioned for a change of their custody in the Minnesota court. As is presently the case in Texas such court had continuing jurisdiction over the children and their custody. Service of citation by personal service was obtained upon Mrs. Lehmann. She arranged for a “special appearance” in the case for the purpose of contesting the court’s jurisdiction, but when the court overruled the “special appearance” and afforded additional time within which she might be enabled to personally appear for general purposes she decided not to answer “upon advice of counsel.” The Minnesota court ordered change of custody to the father of the minors as previously indicated, in September of 1975.

October 27, 1975, the petition for writ of habeas corpus was filed in the Texas court. On application the court took judicial notice of applicable Minnesota statutory laws.

We apply Sec. 14.10 of Texas Family Code. Actually the only legitimate complaint in the court below related to the jurisdiction of the Minnesota court to render the change of custody order. It is to be noticed that there had been no appeal therefrom. Of this we deem the Texas courts committed to the principle that under the Full Faith and Credit clause of the Federal Constitution (U.S.Const., Art. 4, Sec. 1) together with the law of the state, itself, jurisdiction continued to obtain in the Minnesota court and its September, 1975, order changing custody of the children here involved became final, decisive, and controlling relative to the custodial rights over them; all of which is to be respected and acknowledged by our Texas courts. See both the majority and concurring opinions in the case of Follak v. Brown, 530 S.W.2d 882 (Tex.Civ.App., Beaumont, 1975, writ ref., n. r. e.) and the cases discussed.

There was no error of the District Court of Denton County, Texas in granting writ of habeas corpus.

All points of error have been severally considered; all are overruled.

Order affirmed.


author: REYNOLDS, Justice.

text:
    In the Matter of D_ R_ D_
    No. 8669.
    Court of Civil Appeals of Texas, Amarillo.
    May 10, 1976.

      Edwards & Associates, Larry A. Elms, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Cindy L. Miller, Lubbock, for appellee.
   REYNOLDS, Justice.

Adjudicated to have engaged in delinquent conduct and ordered committed to the Texas Youth Council, D_R_D_ contends that the decisions are not supported by the evidence and that the trial court abused its discretion by not considering a viable alternative disposition suggested in his overruled motion for new trial. The contentions have not been developed to reflect error. Affirmed.

The presentation of the point of error by which D_R_D.__ asserts the adjudication and disposition are not supported by the evidence is not adequate to maintain the point. Rule 418(e) specifies that the requisite to maintain a point of error is a fair, condensed statement of the facts pertinent to the point with references to the pages in the record where those facts may be found, and a discussion of the facts and authorities relied upon. Nowhere in the brief for D— R_D— is there any statement of or page reference to the evidence. Although D R— D requests that we “consider whether or not the adjudication and disposition decisions are supported by the evidence,” his full discussion of the point is that he “would argue that neither is supported by the evidence. It is strongly urged that there is insufficient evidence to warrant the trial court’s finding in the disposition hearing.” No authorities are cited in support of the point. Where, as here, Rule 418(c) is not complied with, the appellate court has no duty to make an independent search of the statement of facts to ascertain if the point of error has merit. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 200-01 (1955). By the omission of the required discussion of the facts and the authorities relied upon, D_R_D_ has waived the point of error. Frazier v. Wynn, 492 S.W.2d 54, 61 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.).

Nevertheless, if the point had been maintained, it would have to be overruled. Our review of the record in connection with the appeal reveals that the evidence not only is legally and factually sufficient to support the trial court’s adjudication and disposition, but it is overwhelming. Suffice it to state that after the careful trial judge thoroughly admonished D_R_D_at the beginning and during the adjudication hearing, D_R_D_, with the consent of his counsel, judicially admitted in open court that he had engaged in the delinquent conduct charged and proved by the unchallenged testimony of other witnesses. At the disposition hearing, the undisputed evidence was that: D_R_D_had engaged in prior acts of unlawful conduct; neither his widowed mother nor his married sister in whose custody he had been placed was able to assist him in adjusting to a normal school environment or to provide proper supervision to prevent his unlawful conduct; within hours after he had been placed in a “no security” detention house, D_R_D_walked away, and his proposed placement in the home of his deceased father’s single, male cousin, or in the home of a man who hoped to marry his mother, offered no more than a willingness by them to try to supervise D_ R_ D_; and that a clinical psychologist’s examination and testing revealed that D_ R_D_could not cope with the normal school setting, but he could adjust to the type of schooling shown to be provided by the Texas Youth Council.

Seven days following the order of commitment to the Texas Youth Council, D_R_D_moved for a new trial on the bare allegation that his married brother, a local resident, was willing to provide him a home and support and discipline, a viable alternative not known to him at the time of the disposition hearing. This motion for new trial, and an amended one filed eighteen days later, were neither verified nor supported by affidavits; neither motion states why the alternative offered by his own brother was not previously known to D_ R_ D_; neither gives any additional facts concerning the alternative; and there is no factual statement of the diligence exercised to develop this new information. The record is devoid of any indication that the motion was presented to or acted on by the trial judge and, consequently, it was overruled by operation of law. Rule 329b, § 4.

On appeal, D_R_D_contends that the trial court erred in overruling his motion for new trial and, after becoming aware of the alternative disposition stated in the motion, abused its discretion in failing to reconsider its disposition decision. The immediate difficulty with this presentation is that the motion was not, as Rule 329b, § 4, directs that it shall be, presented to the court for its consideration. Beyond that, if the motion had been presented ad overruled by the court, there would be no error. The motion is clearly deficient because of the absence of affidavits of the non-record facts suggested by the motion, Moores v. Wills, 69 Tex. 109, 5 S.W. 675, 677-78 (1887), and the failure to aver facts, either in the motion or by affidavit, bearing on the diligence used to sooner discover the new evidence of the alternative disposition. R. McDonald, 4 Texas Civil Practice § 18.-16.3 (1971). Under the circumstances, then, the contentions now made have not been developed to reflect error.

The judgment is affirmed.

       All cited rules are the Texas Rules of Civil Procedure.


text:
    MONSANTO COMPANY, Appellant, v. Harry F. TYRRELL et al., Appellees.
    No. 1397.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 12, 1976.
    Rehearing Denied June 2, 1976.

      Stan McLelland, Perry Barber, Baker & Botts, Houston, for appellant.
    Clifford G. Campbell, R. F. Wheless, Jr., Houston, for appellees.
   CIRE, Justice.

This case involves the determination of the effect of an advance payment for gas production. The action was initiated by appellant Monsanto Company (lessee) for a declaratory judgment to construe an oil and gas lease and gas purchase contract. A counterclaim was filed by the Tyrrells (lessors) both for a declaratory and a money judgment.

Monsanto and the Tyrrells have each entered into separate gas purchase contracts with Northern Natural Gas Company, the sole purchaser of gas from the leased property. Northern made an advance payment to Monsanto for gas to be delivered in the future under the gas purchase agreement between those two parties. The only question on this appeal is whether any portion of the advance payment can be considered as “recovery from production” as of the date the payment was made.

Paragraph 12E of the lease provides:

At such time as Lessee has recovered from 70% of total production, a sum net after severance, pipeline and production taxes, equal to (a) 100% of all sums expended by it in drilling wells (whether producers, dry holes or junked holes) upon the above described land and completing and equipping the same into the tanks as to oil wells and into the pipeline as to gas wells, and in plugging and abandoning dry holes and abandoned wells, plus (b) 100% of the total cost of operating said wells until the date of recovery of the sums described in (a), the royalties to be paid by Lessee under paragraph 3 as amended by paragraph D above, shall ipso facto increase from the percentage thirty per cent (30%) to the percentage fifty per cent (50%).

As permitted in the lease, appellant created a pooled unit, of which the Tyrrells’ interest constitutes about 45%. Of this 45% of the pooled unit, the Tyrrells are entitled to an initial royalty of 30%, which royalty is to increase to 50% when Monsanto has recovered its drilling and completion costs, plus its operating costs until the date of payout.

On June 18, 1971, before the Tyrrell well was completed, Monsanto entered into a gas purchase contract with Northern under which Monsanto agreed to sell to Northern all of Monsanto’s gas produced from the pooled unit. On March 24, 1972, the Tyr-rells entered into a separate purchase agreement with Northern. On January 31, 1972, after the Tyrrell well was completed, Northern made an advance payment to Monsanto of $1,272,275 as partial payment for the gas committed to Northern out of Monsanto’s share of the production. The gas purchase agreement provided that Northern was to recoup this advance payment by

deducting from payments otherwise due [Monsanto] Seller hereunder Thirty Percent (30%) of the amount determined by multiplying the volumes of gas produced from Seller’s interest in all Gas Production Units hereunder by the price per Mcf which is effective at the time such gas is received by Northern. .

The trial court found that by the term “recovery from production” the parties to the lease intended that the Tyrrells’ royalty would shift to 50% when Monsanto had recovered its well costs from “the marketing of the production [gas]” from the Tyr-rell well. On the basis of this interpretation of the lease, the court found that $374,-403.00 of the advance payment constituted recovery of well costs, to be credited as such at the time the payment was made rather than at the time the gas was actually produced. Therefore, the court found that by applying this $374,403.00 as recovery of costs at the time the payment was made, the Tyrrells’ royalty shifted to 50% in November, 1972, and that from November, 1972 until February, 1973 Monsanto had delivered to Northern an amount of gas belonging to the Tyrrells for Monsanto’s own account. The court found the value of that gas to be $60,406.15 and rendered judgment for the Tyrrells for that amount.

Monsanto contends that at the time the advance payment was received it could not have constituted a “recovery from production”, to be applied under the lease as recovery of the well costs, because at that time there had been no production from the well. This contention is based on the proposition that under Texas oil and gas law the clear, well-established, and unambiguous meaning of the term “production” is “actual production” or the actual physical extraction of the mineral from the soil. Texas case law has established this as the correct interpretation of the term “production” when it appears in a royalty deed or in the habendum clause of a mineral lease. Gulf Oil Corporation v. Reid, 161 Tex. 51, 337 S.W.2d 267 (1960); Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311 (1953); Campbell v. Dreier, 382 S.W.2d 179 (Tex.Civ.App.-San Antonio 1960, writ ref’d n. r. e.); Sellers v. Breidenbach, 300 S.W.2d 178 (Tex.Civ.App.-San Antonio 1957, writ ref’d n. r. e.).

In construing the terms used in a written instrument the court is to give to such terms their usual and accepted meaning, unless it is clearly shown the parties intended a different meaning. Pan American Insurance Co. v. Cooper Butane Co., 157 Tex. 102, 300 S.W.2d 651, 654 (1957). Moreover, if the language used in a written contract is such as conveys a definite legal meaning, such language is not ambiguous and is not subject to further judicial interpretation. Wynnewood State Bank v. Embrey, 451 S.W.2d 930 (Tex.Civ.App.-Dallas 1970, writ ref’d n. r. e.). We think the term “production” as used in this lease has a definite legal meaning, namely, the actual physical severance of the mineral from the soil. No ambiguity of meaning appears on the face of the lease; therefore, it was error for the court to substitute the term “marketing from production” for the plain term “production” used in the instrument.

It is also apparent from the language of the lease that the parties intended that the lessors would bear 20% of the well costs from their share of the production from the Tyrrell lease. The result of the court’s substitution of terms would be to place almost the entire financial burden of drilling and equipping the Tyrrell well onto Monsanto, a result which was clearly not intended by the parties.

The judgment of the trial court is reversed. Judgment is here rendered declaring that the $1,272,275 advance payment was to be accounted for by Monsanto as recovery of its well expenses only as the gas purchased through that payment was actually produced from the lease.

Reversed and rendered.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Robert William FORD, Jr., et al., Appellees.
    No. 1329.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 12, 1976.
    Rehearing Denied June 2, 1976.
    John T. Golden, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellant.
    Paul F. Jensen, Morgan, Dudensing & Tullís, Houston, for appellees.
   COULSON, Justice.

This is an uninsured motorist case. Trial was had to the court sitting without a jury upon agreed stipulations and agreements. Judgment was entered against State Farm Mutual Automobile Insurance Company for $10,000. State Farm has brought this appeal. We reverse and render.

On October 18, 1969 Mrs. Joan Elizabeth Ford was a passenger in an automobile driven by Mrs. Shirley Harvey when the Harvey automobile was in a collision with a vehicle driven by Jeffrey Whitten. The collision resulted in Joan Ford’s death. She was survived by her husband Robert W. Ford, Jr. and their three children. Jeffrey Whitten, whose negligence caused the collision, was an uninsured motorist.

At the time of the collision, the Harvey automobile was covered by a policy of automobile liability insurance issued by Gulf Insurance Company, with a standard uninsured motorist clause coverage of bodily injury limits for one person in the amount of $10,000. Robert Ford had an automobile liability policy with State Farm containing the same standard uninsured motorist coverage. Robert Ford became the legal guardian of the three surviving minor children of Joan Ford. Gulf Insurance indicated their willingness to settle for the limits of their policy with Ford and the three children. Before a settlement could be reached, a claim was filed by Amanda Hartman Kettler and Nelson Kettler, the parents of Joan Ford. Suit was filed by Robert Ford in his individual capacity and as guardian for Joan Ford’s three children against Gulf Insurance and State Farm claiming benefits of the uninsured motorist provisions of each of the policies. Gulf answered and filed a cross-action and inter-pleader against Amanda Kettler and Nelson Kettler. Subsequently State Farm was served and an answer was filed.

Gulf paid $10,000 to the Fords and an agreed judgment was entered without participation by or consultation with State Farm. The cross-action of Gulf Insurance impleading Amanda and Nelson Kettler, who disclaimed any right to the proceeds, was dismissed. Gulf paid $10,000 to the Fords.

The State Farm policy was a standard family automobile policy authorized by the State Board of Insurance which contained under the uninsured motorist coverage the following provision:

This policy does not apply to . Part IV: . . -(b) To bodily injury to an insured with respect to which such insured, his legal representative, or any person entitled to payment under this coverage, shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.

The effect of the exclusion clause quoted above is the only question presented by this suit. If the clause is valid and applicable to these facts, then it will prevent the Fords from recovering under the State Farm policy-

The exclusionary clause has been the subject of prior litigation. The cases of Castorena v. Employers Casualty Company, 526 S.W.2d 680 (Tex.Civ.App.-El Paso 1975, writ ref’d n. r. e.) and McClelland v. United Services Automobile Association, 525 S.W.2d 271 (Tex.Civ.App.-Beaumont 1975, writ ref’d) and Jessie v. Security Mutual Casualty Co., 488 S.W.2d 140 (Tex.Civ.App.-Fort Worth 1972, writ ref’d n. r. e.) and Grissom v. Southern Farm Bureau Casualty Ins. Co., 476 S.W.2d 448 (Tex.Civ.App.-Waco 1972, writ ref’d n. r. e.) considered the clause, and in each case it was held that the clause was enforceable.

We are compelled to follow these decisions. The judgment of the trial court is reversed and it is rendered that the Fords take nothing.


author: O’QUINN, Justice.

text:
    Francis V. HURT, Appellant, v. William D. BAYS, Appellee.
    No. 12388.
    Court of Civil Appeals of Texas, Austin.
    May 12, 1976.
    Rehearing Denied June 1, 1976.

      Robert Everett L. Looney, Austin, for appellant.
    Keith E. Kisner, Law Offices of M. N. Garcia, Austin, for appellee.
   O’QUINN, Justice.

William D. Bays, an attorney, sued his client, Francis V. Hurt, for attorney’s fees in the sum of $450 on November 8, 1974, fifteen days after being employed to obtain Hurt’s release from the Austin State Hospital, where he had been involuntarily committed. Meanwhile Hurt had been transferred from the state hospital to Shoal Creek Hospital in Austin through efforts of another attorney employed by Hurt’s wife. Bays had Hurt served with process while the client remained a patient in Shoal Creek Hospital.

Hurt employed counsel who filed an answer in which a general denial was pleaded. About six months later, in May of 1975, Bays, through his attorney sought a summary judgment, which the trial court entered on May 13, awarding Bays $453 on his claim for attorney’s fees, together with $300 as fees for the attorney who represented Bays in the action.

Upon expiration of thirty days after judgment, Bays caused “Interrogatories in Aid of Judgment” to be served by mail on Hurt’s attorney, in June of 1975.

Thereafter Hurt perfected writ of error to this Court and brings two points of error.

Under the first point Hurt urges error in granting summary judgment “. as the record demonstrated the existence of a material fact issue concerning proper notice under Rule 21a, Tex.Rules of Civ.Pro., of the hearing for summary judgment being served on Mr. Hurt.” Hurt argues that since under Rule 166A(c) a motion for summary judgment must be served on the party against whom a claim is made “at least ten days before the time specified for the hearing,” judgment was entered improperly in this case because adequate notice as prescribed by Rule 21a was not given.

The certificate of service filed in the record asserts that “. . . a true and correct copy of the Plaintiff’s Motion for Summary Judgment was . . . served upon Robert Everett L. Looney, attorney for Defendant, at the First National Life Building, # 4, 702 Colorado Street, Austin, Texas 78701, by first class, certified, return receipt requested, postage prepaid mail.”

Hurt insists that the certificate fails to show adequate service for failure “. to certify that the address to which the copy was sent was the ‘. . . last known address,’ and in fact it was not at that time the address of Mr. Hurt’s attorney, Robert Everett L. Looney.”

The point of error is overruled. Rule 21a provides for a presumption of service: “A written statement by an attorney of record . . . showing service of a notice shall be prima facie evidence of the fact of service.” Although the Rule requires that notice be mailed to the last known address, it does not require that the certificate state that the address was in fact the last known. The Rule further permits the party to be served to offer proof that the notice was not received. Hurt by unsworn motion to set aside the judgment alleged that the attorney failed to receive the notice, but the motion was not supported by affidavit or other proof of the claim.

It further appears from the record that by sworn pleadings Bays amended his original petition and under Rule 185 converted his suit into one on sworn account. Hurt failed to file a verified denial in lieu of his original answer which set up only a general denial. Even with proper notice of the summary judgment hearing, Hurt would have been unable to dispute receipt of the services of Bays or correctness of the charges stated. 2 McDonald, Texas Civil Practice, 7.31(f) (Rev.1970).

Under the second point of error Hurt contends that the affidavit of Bays’ attorney, in support of the motion for summary judgment, that the sum of $300, “as prayed for by the Plaintiff in this cause, is a reasonable attorney’s fee,” failed as proof to support the judgment for that sum. We agree and sustain the point of error.

Bays alleged that he presented his claim to Hurt thirty days prior to hearing on this action, but no proof of presentment was made at the hearing as a basis for claim for attorney’s fees. The only evidence offered at the hearing, in support of claim for attorney’s fees, was the affidavit of counsel for Bays that in his opinion a fee of $300 was reasonable. No proof was made as to the basis for the fee, whether contingent or non-contingent, in order to enable the trial court to determine reasonableness of the fee.

The trial court erred in awarding attorney’s fees in the summary judgment. Stafford v. Brennan, 498 S.W.2d 703, 707 (Tex.Civ.App. Corpus Christi 1973, no writ); Goodman v. Art Reproductions Corporation, 502 S.W.2d 592, 594 (Tex.Civ.App. Dallas 1973, writ ref. n. r. e.); Audiomedia, Inc. v. Rollins Outdoor Advertising, Inc., 477 S.W.2d 370, 375 (Tex.Civ.App. San Antonio 1972, writ ref. n. r. e.); Lindley v. Smith, 524 S.W.2d 520 (Tex.Civ.App. Corpus Christi 1975, no writ). The affidavit of counsel for Bays did not establish reasonableness of the fee. At most it merely raised an issue of fact, and the issue may not be established as a matter of law in a summary judgment hearing. Rice v. Nu-ray Electric Company, Inc., 514 S.W.2d 86, 89 (Tex.Civ.App. Fort Worth 1974, no writ).

The judgment of the trial court, insofar as it awarded Bays recovery of his fee in the amount of $453, is affirmed; that part of the judgment awarding recovery of $300 for attorney’s fees by reason of Bays’ employment of counsel to represent him in this action, is reversed. The cause is remanded for further proceedings.

Affirmed in Part and in Part Reversed and Remanded.


text:
    J. A. MALLORY, Jr., d/b/a Mallory’s Camping Center, Appellant, v. John Ray CUSTER, Appellee.
    No. 12413.
    Court of Civil Appeals of Texas, Austin.
    May 12, 1976.

      Edith Roberts, Austin, for appellant.
    Delmar L. Cain, Goggan & Cain, Austin, for appellee.
   SHANNON, Justice.

This appeal involves Tex.Bus. & Comm. Code Ann. art. 17.41, et seq., commonly known as the Deceptive Trade Practices-Consumer Protection Act. Article 17.46(a) of that Act declares unlawful any false, misleading, or deceptive act or practice in the conduct of any trade or commerce.

Appellee, John Ray Custer, sued J. A. Mallory, doing business as Mallory’s Camping Center, in the County Court at Law of Travis County for damages arising out of appellant’s attempted repair of appellee’s camper trailer, and for treble damages and attorneys’ fees for violation of Art. 17.46. Upon trial to the court, judgment was entered for appellee for $1,182.80. We will affirm that judgment.

In his trial pleading appellee averred that appellant operated a business for the sale and repair of camping vehicles and camping trailers. Appellee pleaded further that appellant specifically advertised and made known to the public that one of the brands which he sold and serviced was the “Coleman” camper.

Appellee declared further that in 1974, he took his Coleman trailer camper to appellant’s place of business for repairs in response to appellant’s advertising. Appellant charged appellee $178.50 for the repair job. As the camper did not function properly appellee returned the camper to appellant for further work. Appellee returned to appellant’s place of business for the camper but at that time the repair work had not been performed. Appellee then had the camper repaired at another shop.

Appellee pleaded that although appellant advertised that he was an authorized dealer for “Coleman” products, he was not such a dealer at the time appellee sought to have his camper repaired. Appellee alleged that appellant made no attempt to apprise appel-lee of the fact that he no longer sold or serviced “Coleman” products. Appellee alleged that such actions constituted “. false, misleading or deceptive acts or practices by causing confusion or misunderstanding as to his affiliation, connection or association with Coleman products and as such was prohibited by Section 17.46 of the Texas Deceptive Trade Practices, Consumer Protection Act.”

The court entered judgment for appellee for $170.70 for “actual” damages. The judgment provided further that because appellant violated Art. 17.46(b)(5) appellee was entitled to $512.10 as treble damages together with $500.00 as attorneys’ fees.

Long after the time permitted by Tex.R. Civ.P. 296, appellant requested the court to file findings of fact and conclusions of law. No findings of fact and conclusions of law were filed.

Appellant attacks the judgment by three points of error. In his first point appellant claims that the court erred in entering judgment that appellant violated Art. 17.46(b)(5) because appellee’s trial petition pleaded a violation of Art. 17.46(b)(3). The partial answer to appellant’s contention is that appellee did not plead that appellant violated Art. 17.46(b)(3). Instead, appellee pleaded that appellant violated Art. 17.46. More important, appellant did not specially except to appellee’s trial petition in an effort to require him to set out with more particularity those sections of Art. 17.46 which he claimed were violated. Under the state of the trial pleading, appellee was entitled to prove, if he could, a violation of any of the sections of that article. Whatever complaints appellant may have had with respect to appellee’s trial petition were waived by his failure to specially except. Tex.R.Civ.P. 90.

Appellant’s second point is that the court erred in entering judgment for treble damages inasmuch as the award of treble damages “. . .is not mandatory under the Act.” Art. 17.50(b) provides:

“In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended . . ”
(Emphasis added)

We agree that Art. 17.50(b)(1) does not require that the prevailing consumer have judgment for treble damages. Article 17.50(b)(1), however, permits the entry of judgment for treble damages to the prevailing consumer. As the county court entered judgment as allowed by Art. 17.-50(b)(1), this Court will not disturb the judgment.

Appellant’s final point is that there was no evidence to support that part of the judgment providing that appellant violated Art. 17.46(b)(5). Article 17.46(b)(5) provides that the term “false, misleading, or deceptive acts or practices” includes:

“representing . . . that a person has a sponsorship, approval, status, affiliation, or connection which he does not.”

An examination of the statement of facts shows that appellant sold “Coleman” camper trailers from 1967 to 1971. During that period of time appellant advertised his connection with “Coleman” products in the yellow pages of the telephone directory of the City of Austin. In 1974, appellant did not sell Coleman camper trailers. In 1974, however, the yellow pages of the telephone directory of the City of Austin showed appellant to be a dealer for “Coleman” recreational vehicles. Appellee testified that he looked in the yellow pages of the telephone book under “Recreational Vehicles” to find a “Coleman” dealer. Appellee vouched further that he relied upon appellant’s advertisement in the yellow pages when he took his “Coleman” camper trailer to appellant for repairs. Though appellee paid appellant $170.70 for repairs on the camper trailer, appellee testified that it was not repaired and would not function. There is some evidence of a violation of Art. 17.46(b)(5). Appellant’s point is overruled.

The judgment is affirmed.

Affirmed.


author: SPURLOCK, Justice.

text:
    Dale SMITH, d/b/a Dalco Construction Company, Appellant, v. POST-TENSIONED SYSTEMS, INC., Appellee.
    No. 17724.
    Court of Civil Appeals of Texas, Fort Worth.
    May 14, 1976.
    Cobb & Collier, and J. D. Collier, III, Lewisville, for appellant.
    Ray W. Hill, Jr., Dallas, for appellee.
   OPINION

SPURLOCK, Justice.

Post-Tensioned Systems, Inc. brought this suit on a sworn account founded on a breach of a contract for the sale and delivery of materials during the months of September, October and December, 1972. Suit was filed within two years after the cause of action accrued but there was a delay in obtaining service upon the defendant. Defendant was served on January 27, 1975, and filed its answer on February 14, 1975, and the cause came on for trial on May 15, 1975. The defendant contends that plaintiff failed to prosecute this suit with diligence and therefore the same is barred as a matter of law by the two-year statute of limitation imposed by Article 5526, V.A.C.S.

It is our opinion that the four-year statute of limitation provided for in Texas Business and Commerce Code Annotated, Section 2.725 applies to this action for the breach of contract for the sale of goods.

We affirm.

In Big D Service Company, Inc. v. Climatrol Industries, Inc., 523 S.W.2d 236 (Tex.1975), that Court stated: “The sole issue is whether the two-year limitation period imposed by Article 5526, Vernon’s Tex.Rev. Civ.Stat., Ann., or the four-year limitation period prescribed by § 2.725 of the Texas Business and Commerce Code, V.T.C.A., applies to an action for the breach of contract for the sale of goods. The Court of Civil Appeals held that the four-year period of limitation governs the action here pleaded. Tex.Civ.App., 514 S.W.2d 148. We agree.”

See also Ideal Builders Hardware Co. v. Cross Const. Co., Inc., 491 S.W.2d 228 (Tex.Civ.App., Houston 1st Dist., 1972, no writ history), and Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App., Houston 14th Dist., 1973, writ refused).

Since this suit was filed and service obtained within four years from the date the cause of action accrued, it is not barred by limitation.

Judgment affirmed.