author: EVANS, Justice. EVANS, Justice.

text:
    Donald L. HOLMQUEST et al., Appellants, v. Larry Lynn PRIESMEYER, Appellees.
    No. 17174.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 28, 1978.
    Rehearing Denied Nov. 9, 1978.
    Second Rehearing Denied Dec. 7, 1978.

      Morris E. Belilove, John Dorsa, Houston, for appellants.
    Dillon, Giesenschlag, Sharp & Delaney, John Delaney, Bill Youngkin, Bryan, for appellees.
   EVANS, Justice.

This suit was brought by Larry Priesmeyer, an architect, to recover compensation for architectural services allegedly performed under written contract with the defendants Donald L. Holmquest and wife, Ann J. Holmquest. After a non-jury trial, the trial court entered judgment in favor of the architect for the sum of $2835.00, representing the unpaid balance of the amount due for his services under the contract and for the sum of $1,500.00 as attorney’s fees. The Holmquests bring this appeal.

In their first four points of error the Holmquests challenge the legal and factual sufficiency of the evidence to support the trial court’s monetary award for the value of the architect’s services and its implied finding that the architect had obtained the approval of the Holmquests before performing the work on the construction documents which constitutes the basis for this suit. Under these points the Holmquests argue that the architect failed to prove a right to any monetary recovery under the contract and that he also failed to prove that he had performed a condition precedent specified in the contract requiring that he obtain the owners’ approval to the preliminary drawings before proceeding with the work on the construction documents.

In late 1974 the Holmquests resided in the Bryan — College Station area of Brazos County, Texas, where Dr. Donald L. Holm-quest was employed as an Associate Dean of Medicine at Texas A & M University. According to the architect’s testimony, Dr. Holmquest mentioned to Mr. Raymond Reed, the Dean of the School of Architecture, that he and his wife wished to obtain an architectural design for a house which they planned to construct on some land they owned in that area. Mr. Reed transmitted this information, together with Dr. Holm-quest’s telephone number, to the architect who then contacted Dr. Holmquest. After several preliminary discussions between the Holmquests and the architect concerning the general type and size of the house the Holmquests wished to have designed, the architect prepared a written contract which the parties executed on January 19, 1975.

Under the terms of this contract the architect agreed to perform certain basic services on behalf of the Holmquests: (1) He agreed to consult with them to ascertain their requirements and to prepare schematic designs studies for their approval; (2) He agreed to prepare working drawings and specifications for their approval and to assist them in bidding the property; and (3) He agreed to advise and consult with them and to act as their representative in the construction phase of the project. For these services the parties agreed that the architect would receive as his compensation a sum equal to 9% of the total construction cost of the project payable as follows:

1. $100.00 payable upon execution to the agreement, such sum to be deducted from the final payment upon completion of construction.
2. 35% upon completion of the schematic design.
3. 50% upon completion of the construction documents.
4. 15% upon completion of construction.

The contract provided that the architect’s basis compensation was to be determined from “the total cost or the estimated cost” of all work designed or specified by the architect and that for work not constructed such cost was to be “the lowest bona fide bid received from a qualified bidder for any and all of such work.” The contract contained a further provision which stipulated that in the event of termination “due to the fault of other” than the architect, he was to be entitled to compensation for his services performed to the date of termination.

The architect testified that after the execution of the contract he sought to determine from the Holmquests their “likes and dislikes” so that they could better prepare an architectural concept which he prepared to graphically communicate to them by means of schematic design drawings and models. During the spring of 1975, the architect worked on the schematic drawings which later served as a basis for the preparation of a three dimensional model of the architect’s concept. During that period of time and extending into the early summer of 1975, meetings were held between the architect and the Holmquests to discuss the work.

In July 1975, having completed his preliminary design phase of the work, the architect submitted his statement to the Holmquests in the amount of $2,205.00, which sum represented 35% of 9% of an estimated construction cost of $70,000.00. The estimated construction cost was apparently computed on the basis of an approximate $25.00 per square foot cost factor which the parties then considered to be the probable cost of construction.

After the architect completed the schematic design phase of the work, he began preparation of the construction or “working” drawings, and he and the Holmquests continued to have meetings throughout the summer and early fall of 1975. In the latter part of October 1975, a meeting was held between the architect, the Holmquests and two engineers to discuss construction details and costs. At this meeting the Holmquests received certain information from the engineers concerning the proposed foundation which did not meet their expectations, and they also indicated some concern with the architect’s opinion, based upon the “guesstimate” of a builder who had reviewed his working drawings, that the current cost of construction had risen to $30.50 per square foot, resulting in a total cost estimate of approximately $91,000.00.

The testimony is disputed concerning the discussions which occurred between the parties after the October, 1975 meeting. The architect testified that approximately 3 weeks after the meeting he received a phone call from Dr. Holmquest, advising that there had been a change in his wife’s professional plans and that they were no longer in a big hurry to construct the house. The architect was advised that he would take his time with the completion of the working drawings so long as construction could begin about the summer of 1976, and, accordingly, the architect continued with his work and did not contact Dr. Holmquest again until May 1976. At that time he had some difficulty reaching Dr. Holmquest, who failed to return his calls, but finally at the urging of a mutual friend, he made a concerted effort to get in touch with Dr. Holmquest and was able to do so. He advised Dr. Holmquest that the interior elevations were available for review and that the plans could be finalized within the next week. Dr. Holmquest then advised him that he had bought a house in Houston and had the Bryan property up for sale.

The Holmquests testified that after the October meeting, the architect told them that he would contact them “within 3 weeks”, and that when they did not hear from him until May 1976, they assumed that he had abandoned the project.

It is the Holmquests’ contention that since the house was not constructed and because the architect did not obtain a bid from a qualified builder which could serve as a basis for computing the construction cost of the project, he did not prove that he was entitled to recover any compensation for the construction document phase of the work. This contention will be overruled.

The contract provision for determining the total construction cost based upon a bid of a qualified builder contemplates that completed construction documents would be available to the architect for delivery to the builder. At the time the Holmquests advised the architect that they were no longer willing for him to proceed with the work, the construction documents were only 90% complete, and the architect testified that since the construction documents were not complete, he did not obtain a builder’s bid on the work.

The trial court found that the architect had performed personal services in a good and workmanlike manner and within a reasonable period of time. No additional findings were requested or filed by either party. In support of the trial court’s judgment a finding will be presumed that the termination of the work was due to “fault of others” than the architect.

The contract stipulates that the architect is entitled to compensation for services performed to the date of termination, when such termination is due to no fault attributable to him, but it does not specify a particular method for determining the architect’s compensation under such circumstances. Thus, the trial court properly based its award upon evidence reflecting what constituted a reasonable and customary compensation for architectural services of a similar nature in that locale. Baylor University v. Carlander, 316 S.W.2d 277, 293 (Tex.Civ.App.—Dallas 1958, writ ref’d n. r. e.).

The trial court found that the estimated construction cost of the house approved by the parties was $70,000.00, and this finding is supported by the evidence and is not directly challenged by the Holm-quests. The trial court was justified in adopting this figure as the “total cost or estimated cost” of the work designed by the architect to the date of termination, and using it as a basis for computing a reasonable and customary compensation to be paid to the architect for his services performed to that date.

There was also testimony that the architect’s regular charge for similar services was $15.00 per hour and that he had expended somewhere between 800 and 100 hours on this project. Based upon a computation of $15.00 per hour multiplied by 800 hours, the value of the architect’s services would have been in the amount of $12,-000.00. The architect testified that he was only seeking a recovery in the amount of $4,391.78, which amount included the sum of $2,205.00 he had received for the schematic design work, and this was the amount he had billed to Dr. Holmquest. Mr. Carroll Claycamp, a registered engineer and architect, testified that his minimum rate was $25.00 per hour and that a $15.00 per hour rate would be a “fair” charge in Brazos County, Texas. He also testified that the plans which the architect had prepared for the Holmquests were of expert quality. The trial court was at liberty to consider this testimony as some evidence of reasonable and customary compensation for similar architectural services in the Bryan—College Station area at the time the architectural services were performed, and its award was well within the range of the evidence presented.

The trial court could also have concluded from the evidence that the Holm-quests gave their approval to the preliminary design phase of the work and by their conduct authorized the architect to continue his work on the construction documents. It is undisputed that the Holmquests indicated to the architect that they were very pleased with the architectural concept demonstrated by his schematic design model, and the architect’s preliminary statement for the schematic design phase of the work was paid without objection by the Holmquests. Although the testimony does indicate that the Holmquests became concerned about the total cost of the work after the October 1975 meeting, there is no indication that the Holmquests then or thereafter advised the architect to stop work on the construction documents until that phase was 90% completed. The contract does not contain an express cost limitation and there is evidence from which the trial court could have concluded that the Holmquests’ conduct led the architect to believe that he was authorized to continue his work on the construction documents. Moore v. Bolton, 480 S.W.2d 805 (Tex.Civ.App. [14th Dist.] 1972, writ ref’d n. r. e.).

Moreover, a party pleading the performance of conditions precedent is required to prove only those which are specifically denied by the opposite party. Rule 54, Texas Rules of Civil Procedure. In his original petition the architect alleged that he had performed all conditions precedent to his being entitled to payment of a portion of his total fee. The Holmquests proceeded to trial on a general denial. Under this state of the pleading, the architect was not required to prove performance of condition precedent. Dairyland County Mutual Ins. Co. v. Roman, 498 S.W.2d 154 (Tex.Civ.App.1973); City of Houston v. Flanagan, 446 S.W.2d 348 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.). The Holm-quests’ first four points of error are overruled.

The Holmquest points of error 5 through 7 complain of the trial court’s award of attorneys fees, however, upon oral submission of the cause, the Holmquest counsel announced to the court that these points would not be urged, and it is, therefore, unnecessary to consider them here.

In their last two points of error the Holmquests allege that the contract is void and that the architect is not entitled to a recovery based thereon because the contract does not contain a notice of their right to cancel the agreement and the architect failed to inform them of their right to cancel and did not provide them with a duplicate completed notice of cancellation as specified by the Home Solicitation Transaction Act, Article 5069-13.02 Tex.Rev.Stat. Ann.

The Home Solicitation Transaction Act’s transaction within its coverage as meaning a “consumer transaction”:

(A) for the purchase of goods, other than farm equipment, * * * or services, payable in installments or in cash where the consideration exceeds $25, in which the merchant or person acting for him engaged in a personal solicitation of the sale to the consumer at a residence and the consumer’s agreement or offer to purchase is given at the residence to the merchant or person acting for him, but it does not include a sale made pursuant to a preexisting revolving charge account or retain charge agreement, or a sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale; or

The terms “consumer” and “merchant” are defined in the act as follows:

“Consumer” means an individual who seeks or acquires real or personal property, services, money, or credit for personal, family, or household purposes. “Merchant” means a party to a consumer transaction other than a consumer.”

It is the Holmquests’ contention that since the contract was signed either at the architect’s apartment, where he also maintained his offices, or at the Holmquests’ residence, it was a “personal solicitation” to a “consumer” . . . “at a residence” and, therefore, a transaction within the meaning of the Act.

The Homes Solicitation Transaction Act was designed to protect residential occupants from high pressure door-to-door salesmen and to allow a “cooling-off” period in which a contract thus negotiated might be rescinded. McDaniel v. Pettigrew, 536 S.W.2d 611 (Tex.Civ.App.—Dallas) 1976, writ ref’d n. r. e.). The evidence in the case at bar does not compel the conclusion that the Holmquests are entitled to the protection of this Act. This point of error is denied.

In a cross point of error, the architect contends that the trial court’s award should have been based upon the $91,000.00 construction estimate, rather than the preliminary estimate of $70,000.00, and that the trial court’s findings in this respect are against the great weight and preponderance of the evidence. For the reasons stated, this cross point will be denied.

The trial court’s judgment is affirmed.

Motion for Rehearing

EVANS, Justice.

The Holmquests, on rehearing, complain of the trial court’s order striking their amended answer because the order was not signed until after the completion of trial. The transcript reflects that the order was entered prior to final judgment in the cause, and the order recites that the plaintiff’s motion to strike was heard by the court on the first day of trial. Although the statement of facts reflects discussion between court and counsel indicating that the plaintiff’s motion to strike was overruled, the order entered by the court is to the contrary and must be considered controlling. The Holmquests did not complain by point of error of the trial court’s ruling on the plaintiff’s motion to strike, and since the matter is raised for the first time in motion for rehearing, it cannot be considered by this court. Aycock v. Travis County, 225 S.W.2d 910 (Tex.Civ.App.—Austin 1953, writ ref’d.); Advance Loan Service v. Mandik, 306 S.W.2d 754 (Tex.Civ. App.—Dallas 1957, writ ref’d. n. r. e.).


source: Caselaw Access Project

author: DICKENSON, Justice.

license: Public Domain

text:
    GRAYSON COUNTY OFFICIALS, Judge Les Tribble et al., Appellants, v. Billy DENNARD et al., Appellees.
    No. 5228.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 5, 1978.
    Rehearing Denied Nov. 16, 1978.

      Elvin E. Tackett, Bedford, Roger D. Sanders, Sherman, for appellants.
    William B. Sullivant, Gainesville, Adrian M. Overstreet, Jr., Austin, for appellees.
   DICKENSON, Justice.

Billy Dennard, O. M. Quattlebaum, James A. Clement, Patsy R. Clement, Charles B. Britt and Fred Watson (plaintiffs) sued the County Judge, County Commissioners and Tax Assessor-Collector of Grayson County (Grayson County Officials) on May 8, 1978, to permanently enjoin them from certifying the county tax rolls for 1978 until all taxable property was placed on the ad valorem tax rolls. Plaintiffs owned real property in the county, and they claimed that they would be harmed by having to pay more than their fair share of the ad valorem tax burden of Grayson County because of the failure to list all personal property subject to taxation on the tax rolls. This suit was filed in the 59th District Court of Grayson County.

The Grayson County Officials filed a plea to the jurisdiction and to abate this case because of an earlier lawsuit which was filed against them (or their predecessors in office) by James R. Newman on August 17, 1970. Newman’s petition alleged that the real property was taxed at a lower percentage of its market value than personal property and that the only remedy “for this deplorable situation” would be a complete, fair and uniform reassessment of the values of all property in the county. Newman’s suit was filed in the 15th District Court of Grayson County. Judge Dee Brown Walker of Dallas was assigned to hear the case, and he signed an agreed judgment on November 17, 1972, which attempted to retain continuing jurisdiction of this cause “for whatever period of time is necessary to effectuate the necessary revaluation and reappraisal of all taxable property in Gray-son County”. Judge Dee Brown Walker was still supervising the reappraisal and revaluation in 1978 when the second lawsuit was filed.

Judge W. C. Boyd of Denton was assigned to hear the case which was pending in the 59th District Court. He overruled the jurisdictional plea and refused to abate the second lawsuit. He also refused to consolidate the second lawsuit with the case which had been filed in the 15th District Court. At the conclusion of a non jury trial, Judge W. C. Boyd made findings of fact which include the following: household furniture is not placed on the tax roll; automobiles more than six years old are not placed on the tax roll; money is not placed on the tax roll; even if an individual renders stocks and bonds, they are not placed on the tax roll; it has been the policy of the tax collector’s office through renditions for the 1978 tax year to inform taxpayers not to render their household goods, money, stocks and bonds, as the same are not included in the tax rolls of Grayson County; no remedial contact has been made with any person whom the tax officer told not to render personal property; the taxes of the plaintiffs would be substantially lower if all taxable property were placed on the tax roll; and the omission of taxable property from the rolls is the result of a deliberate, intentional and continuing plan.

Judge Boyd’s conclusions of law include the following; the judgment in the Newman case became final in 1972; the 59th District Court has jurisdiction of the subject matter in this case and is the only court with such jurisdiction; the constitution and statutes of Texas require that money, stocks and bonds (except in Texas corporations) are taxable in Texas; the tax assessor in Grayson County failed to properly place all taxable property on the tax roll; the tax plan in this case, as formulated by the tax assessor-collector of Grayson County, is fundamentally erroneous in that it excludes intentionally and deliberately certain classes of taxable property; plaintiffs have been substantially harmed by the adoption of the tax plan in Grayson County; and plaintiffs have no adequate remedy at law.

Judgment was rendered by Judge W. C. Boyd on July 6, 1978, which decreed that the Grayson County Officials would be enjoined as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendants be and they are hereby perpetually enjoined individually and collectively from certifying the tax rolls of Grayson County until all classes of taxable property within Grayson County, and without exempting any class of taxable property (not exempted by the constitution and statutes of Texas) are placed thereon; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant, Tax Assessor-Collector, of Grayson County be and she is hereby perpetually enjoined to reconstitute the tax rolls of Grayson County and to include thereon all property in Grayson County, real, personal, or mixed except as may be expressly exempted by the constitution and statutes of the State of Texas . . .”

The Grayson County Officials filed a su-persedeas bond and perfected their appeal. The judgment of the trial court will be modified and affirmed.

The first point of error is that Judge W. C. Boyd erred in holding that the 59th District Court had jurisdiction, in refusing to abate, and in refusing to consolidate this cause with the Newman case which had been filed in the 15th District Court in 1970. This point of error is overruled. The agreed judgment in the Newman case was entered by Judge Dee Brown Walker on November 17, 1972, and it became final 30 days later. We hold that the controversies between those parties were settled by that judgment, and it will be deemed a final judgment. This is true even though further proceedings' were required to carry the judgment into full effect. Such proceedings may be expressly provided for in the face of a judgment without affecting its finality, provided they are merely incidental to its proper execution. Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944); Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975); Jamison v. City of Pearland, 520 S.W.2d 445 (Tex.Civ.App.—Houston (1st Dist.) 1975, no writ); Moody v. State, 520 S.W.2d 452 (Tex.Civ.App.—Austin 1975, no writ); Starkey v. Holoye, 536 S.W.2d 438 (Tex.Civ.App.—Houston (14th Dist.) 1976, writ ref’d n. r. e.); and White v. Parr, 538 S.W.2d 234 (Tex.Civ.App.—San Antonio 1976, writ ref. n. r. e.).

Judge Dee Brown Walker’s post-judgment supervision of the Grayson County revaluation and reappraisement is not before us, and we will say only that the plaintiffs’ cause of action in this case was not subject to abatement or consolidation with those proceedings.

The second point of error is that Judge W. C. Boyd erred in rendering the order which perpetually enjoined the Grayson County Officials from certifying the tax roll for 1978 until all classes- of taxable property are placed thereon and in perpetually enjoining the Tax Assessor-Collector to reconstitute the tax rolls to include all taxable property in the county. The injunction is overly broad. A less sweeping remedy will be sufficient to protect the rights of the named plaintiffs in this lawsuit.

The remedies which are available to protect taxpayers who complain of unfair ad valorem taxation, and the burden of proof required of them, depend upon when the taxpayers file their suit. If the suit is filed before the tax rolls are certified, taxpayers have a lower burden of proof. They also have the possibility of securing an injunction against a defective tax system. If the taxpayers wait until the tax roll is certified, they face a higher burden of proof and are not entitled to an injunction against the tax system. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954) recognized the right to relief from an arbitrary plan of taxation; however, Chief Justice Calvert points out on page 416 of that opinion:

“. . if the taxpayer fails to avail himself of the remedies of mandamus and injunction to prevent a taxing authority from putting such a plan into effect, as those remedies were used in such cases as City of Houston v. Baker, Tex.Civ.App., 178 S.W. 820, writ refused, and City of Wichita Falls v. Cooper, Tex.Civ.App., 170 S.W.2d 777, writ refused, his right to relief is limited. . . . Once such a plan is put into effect the litigant may defeat the recovery of taxes only to the extent that they are excessive and he must assume the burden of proving ex-cessiveness. . . . ”

City of Houston v. Baker, 178 S.W. 820 (Tex.Civ.App.—Galveston 1915, writ ref’d) was a precertification attack by the taxpayers. The court found that the City intentionally omitted household goods, money, stocks, bonds, mortgages, notes, credits and other similar personal property from the tax rolls. The City taxed land at 70% of its full value, improvements at 25% of full value, and merchandise at 50% of full value. The City’s tax plan violated the provision of the constitution which demands uniformity of taxation and which requires that all property be taxed in proportion to its value. The evidence showed that a large class of individuals would be directly injured by the City’s illegal tax plan. The court held that the action was not brought prematurely. The court recognized on page 825 of its opinion that after the valuations were made and completed:

“. . . then a case will have arisen where an extraordinary mandatory injunction will be required, commanding every valuation of property in the city to be remade, the effect of which will be to bring about a state of affairs so complex and difficult that the courts might be inclined to let the illegal acts stand, giving the taxpayers the right to pay taxes on the lowest valuation adopted . . .”

We note that the City of Houston expressly admitted that its tax plan was illegal, that it was deliberately adopted, and that it would be adhered to unless forbidden by the courts. The Grayson County Officials have taken a different posture. They have undertaken a revaluation and reappraisal of tax property in response to an agreed judgment in the prior taxpayer lawsuit. During the trial of the present case, the Tax Assessor-Collector promised to do the best that she could to place all taxable property on the tax rolls.

City of Wichita. Falls v. Cooper, 170 S.W.2d 777 (Tex.Civ.App.—Fort Worth 1943, writ ref’d) was also a precertification attack by a taxpayer. The City had adopted a municipal ordinance to exempt $3,000 of assessed taxable values on all residence homesteads in the City. The court held that the constitutional provision relating to exemption of homesteads from taxation was clearly limited to taxes for State purposes. The court held that the City had not only the right, but also the duty, to tax the homestead for City purposes. The court held that the trial court was correct in holding the municipal ordinance void and in issuing a permanent injunction to restrain the City from exempting homestead property from taxation.

We note that the injunction against the City of Wichita Falls did not require them to search out other properties, but merely to cease the issuance of exemption certificates on residential homesteads.

Atlantic Richfield Company v. Warren Independent School District, 453 S.W.2d 190 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.) is a fairly recent precertification attack on a defective ad valorem tax plan. Justice Keith discusses the difference between precertification and postcertification attacks on defective ad valorem tax plans. Atlantic Richfield and others contended that the Board of Equalization, in each of the years involved, adopted a fundamentally erroneous plan of taxation which resulted in their substantial injury. The taxpayer plaintiffs secured jury findings in support of various factual aspects of their theory. The school district secured a finding from the jury that the Board made a good faith effort to fairly and honestly assess all taxable property within the District at a fair, just, equal and uniform valuation for taxing purposes. The trial court’s judgment for the school district was reversed, and judgment was rendered, “. . . setting aside, vacating and holding for naught the assessments upon plaintiffs’ properties in said District for each of the years involved. This judgment, however, is without prejudice to the right of the District to again assess and value plaintiffs’ properties in accordance with law and to collect such taxes as may be due thereon . . . .”

Our Supreme Court pointed out in Republic Ins. Co. v. Highland Park Independent School Dist., 141 Tex. 224, 171 S.W.2d 342 (1943) that:

“. . . Assessing and equalizing taxes are not functions of the courts. Electra Independent School District v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645. Therefore, the trial court was correct in rendering judgment for the petitioner. However, we affirm that judgment on the sole ground that the assessment is void, and we reform it to show that it is rendered without prejudice to the right of the respondent again to assess and value the property in accordance with law and to collect such taxes as may be due thereon. . . .”

Our Supreme Court also discussed ad va-lorem taxation at some length in the case of Whelan v. State, 155 Tex. 14, 282 S.W.2d 378 (1955). Chief Justice Calvert states at page 382:

“. . .We full well realize the practical difficulties and problems to be encountered in taxing bank deposits, but to hold that they are not taxable would require us to fly in the very face of the Constitution and the Statutes of this state. This no court is at liberty to do. “. . . It is not for taxing authorities to decide what property shall escape taxation; that right lies alone with the people in the writing of their Constitution and with the Legislature in the enactment of laws. .
. But petitioners do not seek to escape the payment of taxes; they seek only to require a revision of the assessed valuations of their property so that they will be required to pay only the amount that is justly due and owing. . . .”

State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847 (1959) also discusses the burdens placed on a taxpayer who challenges an ad valorem tax plan. This case makes clear the distinction between a precertification challenge and a postcertification challenge. The Federal Land Bank failed to challenge the plan before the tax rolls were certified. Even though the Supreme Court found that the Federal Land Bank had proved an arbitrary and illegal scheme of ad valorem taxation, it failed to prove substantial injury. Chief Justice Greenhill sets forth the law as follows:

“. . . The deliberate adoption of a plan for the omission from the tax rolls of a large volume of property, personal or real, is in direct contravention of constitutional and statutory provisions for equality and uniformity of taxation. .
“But while the Land Bank did prove an arbitrary and illegal scheme of ad valo-rem taxation, that fact alone under the facts here does not of itself entitle it to relief. This is not a direct attack on the scheme of taxation or a suit to prevent the initiation or operation of an illegal scheme. No relief was sought by mandamus or injunction. Here the taxpayer sat by and allowed the plan to be put into operation without even a suggestion of a protest, objection, or appeal. The County and the other taxpayers have proceeded under the plan. The point is made only after the county-wide valuations have been fixed and adjusted in the board of equalization, the taxes levied, assessed, and presumably paid by the other taxpayers in the county. Under those circumstances, the Land Bank must assume a very heavy and onerous burden.
“The government does not lose its right to taxes on one parcel of property by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable. Once such a plan is put into effect, the litigant may defeat the recovery of taxes only to the extent that they are excessive; and he must prove the excessiveness. City of Arlington v. Cannon, 1954, 153 Tex. 566, 271 S.W.2d 414. When the attack is made because the taxing authority has followed an arbitrary plan or scheme, the taxpayer, to prevail, must show not only that the plan was an arbitrary and illegal one but also that the use of the plan worked to his substantial injury. State v. Whittenburg, 1954, 153 Tex. 205, 265 S.W.2d 569.
“The difficulties to be encountered in making the necessary proof as a basis for relief is the penalty the taxpayer must pay for sitting idly by while taxing authorities put into effect a plan of taxation which deliberately permits certain classes of property to escape taxation. City of Arlington v. Cannon, supra.
“In cases previously before this Court, proof of substantial injury has been held to mean that the taxpayer must prove that his taxes are excessive or substantially higher by virtue of the omission of the taxable property and the failure to assess taxable property at its market value. Whelan v. State, supra; State v. Whittenburg, supra. As stated by Judge Brown of the Fifth Circuit after reviewing the Texas cases, ‘It must finally be translated into hard dollars out of the complaining taxpayer’s pocket.’ ‘ * * * no matter how much it (the tax plan) violates the State Constitutional pattern, the only relief of a taxpayer defending delinquent tax suit is to show in dollars that he is worse off.’ City of Orange, Texas v. Levingston Shipbuilding Co., 5 Cir., 1958, 258 F.2d 240 .. . .”

In this lawsuit, plaintiffs did not sit idly by. They have sued to enjoin the Grayson County Officials from putting into effect an ad valorem tax plan which the trial court has found to be fundamentally erroneous. The trial court has also found that the taxes of plaintiffs would be substantially lower if all taxable property were placed on the tax rolls. Plaintiffs are entitled to relief, but we hold that the injunction of the trial court was overly broad in blocking the certification of the tax rolls as to every taxpayer in Grayson County, Texas. Relief such as that granted in Atlantic Richfield Company v. Warren Independent School District, supra, would appear to be appropriate. That was also a precertification or direct attack where the taxpayers prevailed, but the relief was limited to the assessments upon those plaintiffs’ properties for the two years involved in that direct attack (separate suits had been filed in 1967 and 1968, but they were consolidated prior to trial on the merits), and the relief granted was without prejudice to the right of the taxing authority to again assess and value those plaintiffs’ properties in accordance with law and to collect such taxes as may be proper.

Rule 683, T.R.C.P., provides in part that:

“Every order granting an injunction . shall be specific in terms; shall describe in reasonable detail the act or acts sought to be restrained

An injunction must be definite, clear and concise. It should leave nothing for further hearing and decision. Young v. Hicks, 559 S.W.2d 343 (Tex.1977); West Texas Utilities Co. v. Haskell County, 490 S.W.2d 237 (Tex.Civ.App. —Eastland 1973, no writ). An injunction decree should inform the defendants of the acts they are restrained from doing, without calling on them for inferences or conclusions about which persons might well differ. The decree must not be so broad as to enjoin the defendants from activities which are lawful and which are a proper exercise of their rights and duties. Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871 (1948).

As pointed out in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943), if a point of error is sufficient to direct the court’s attention to the matter complained of, the court can look to the point of error and the statement and argument to determine the question. Rule 418(d), T.R.C.P., provides that such points will be sufficient if they direct the attention of the court to the error relied upon. Rule 422, T.R.C.P., indicates that the briefing rules are to be liberally construed. We hold that the second point of error, when liberally construed, is sufficient to direct the court’s attention to the fact that the injunction was overly broad.

The injunction paragraph (which is quoted hereinabove) in the judgment entered by Judge W. C. Boyd on July 6, 1978, will be modified to read as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendants be, and they are hereby, enjoined from certifying the 1978 tax rolls of Grayson County as they are presently constituted, as to Billy Dennard, O. M. Quattlebaum, James A. Clement, Patsy R. Clement, Charles B. Britt and Fred Watson and IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants may certify the 1978 tax roll as to all other taxpayers in the county and proceed with collection of the 1978 ad valorem taxes.”

The third point of error claims that there was no evidence to support the trial court’s finding that it was the plan of Gray-son County to deliberately and intentionally omit personal property from taxation. We disagree. The fourth point of error is that such finding was against the great weight and preponderance of the evidence. We disagree. We have reviewed the entire record, and we hold that this finding 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). The plaintiffs have met their burden of proof on this precertification attack on the tax plan, and they are entitled to relief. City of Houston v. Baker, supra.

The fifth point of error contends that the trial court erred in granting plaintiffs a remedy that prevents the Grayson County Officials from assessing an ad valorem tax against some 50,000 taxpayers when the plaintiffs’ attorneys stated at the beginning of the trial that they had no intention for this to be a class action suit. We agree that the injunction should be modified as indicated hereinabove. Atlantic Richfield Company v. Warren Independent School District, supra. Where proof of excessiveness or of substantial injury is required as a prerequisite to granting of relief, that proof must be made as to each taxpayer who seeks relief. The injunction cannot stand as to the other taxpayers in the county. Sierra Blanca Independent School District v. Sierra Blanca Corporation, 514 S.W.2d 782 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.); Bynum v. Alto Independent School District, 521 S.W.2d 656 (Tex.Civ.App.— Tyler 1975, writ ref’d n. r. e.).

As modified, the judgment of the trial court is affirmed. All court costs are taxed one-half against plaintiffs and one-half against the Grayson County Officials. City of Arlington v. Cannon, supra.

ON APPELLANTS’ AND APPELLEES’ MOTIONS FOR REHEARING

On November 8,1978, the Supreme Court delivered its opinion in an original mandamus proceeding which involved the Grayson County tax rolls. In that opinion, the Supreme Court held that the agreed judgment which Judge Dee Brown Walker rendered on November 12, 1972, became final thirty days after its rendition; that his jurisdiction to hear tax controversies in Grayson County ended on that date; and that any orders issued by him after that date are void. Case v. Honorable Dee Brown Walker, Judge, 573 S.W.2d 513 (Tex.1978).

In appellants’ motion for rehearing, the Grayson County Officials assert for the first time that the State of Texas, Grayson County, Pottsboro Independent School District, Tioga Independent School District, Choctaw Watershed District, and Grayson County Junior College are indispensible parties. This point was not raised in the trial court, nor was it raised in the original briefs in this court. We hold that those parties were not indispensible parties under Rule 39, T.R.C.P. Their absence did not deprive the trial court of jurisdiction to adjudicate between the parties who participated in the proceedings. Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974).

Both motions for rehearing are overruled.


author: KLINGEMAN, Justice.

text:
    David DIGBY, Appellant, v. Seth HATLEY and P. M. O’Bryant, Appellees.
    No. 15980.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 18, 1978.

      William F. Stolhandske, Stolhandske, Simmons & Stolhandske, San Antonio, for appellant.
    Joe E. Briscoe, Briscoe & McGowen, De-vine, for appellees.
   OPINION

KLINGEMAN, Justice.

This is an appeal from an instructed verdict that plaintiff David Digby take nothing against defendants Seth Hatley and P. M. O’Bryant. Plaintiff will sometimes hereinafter be referred to as “Digby,” and defendants as “Hatley” and “O’Bryant.” Trial was to a jury and after the close of the evidence both Hatley and O’Bryant filed motions for instructed verdict which were granted by the trial court, and judgment was entered that plaintiff take nothing against said defendants.

The trial court filed findings of fact and conclusions of law which may be summarized as follows:

Findings of Fact:
(1) On June 26, 1971, P. M. O’Bryant and Robert A. Sone, as lessors, executed a written lease covering 1,174 acres of land in Real County, Texas, to Seth Hatley and R. C. Talley, as lessees.
(2) This lease granted grazing and hunting rights to lessees and provided that “[ljessees shall not sublet any portion of the leased premises without the written consent of the [ljessors.”
(3) Hatley, one of the lessees, entered into an oral agreement with David Digby to lease to Digby hunting rights for a total consideration of $2,300.
(4) Neither Hatley nor Digby obtained written consent from O’Bryant or Sone to lease the hunting rights. Digby’s pleadings contained no allegation that this requirement was waived.
(5) No consideration was paid by Digby to O’Bryant or Sone for the hunting privileges.
(6) Digby paid Hatley the sum of $2,300 for hunting rights on or about June 2, 1974.
(7) On November 30, 1974, Digby and several of his guests were hunting on the premises.
(8) The guests paid a consideration to Digby for hunting on said premises, but neither Digby nor the guests had obtained permission from, or paid any consideration to, O’Bryant.
(9) O’Bryant knew of the agreement between Digby and Hatley but made no objection thereto.
(10) O’Bryant knew that Hatley had sublet hunting privileges in the past and raised no objection thereto.
(11) The pleadings of Digby contain no allegations that O’Bryant or Sone as lessors had waived the right to written consent as to the assignment of the lease or any part thereof.
(12) O’Bryant had personally exercised hunting privileges in the past although the lease contained no provision in this regard.
(13) O’Bryant, on November 30, 1974, while hunting on the premises, observed Digby and his guests and fired a warning shot which struck in the water close to the guests. He approached and demanded that they leave, and on that date Dig-by and his guests vacated the premises.
Conclusions of Law:
(1) The lease contained a clause that it could not be assigned without the written consent of the lessors, and both Digby and Hatley testified that no such consent was obtained, and, therefore, there was no issue of fact to be presented to the jury.
(2) No consideration was paid to O’Bryant by Digby or any of his guests for the right to hunt.
(3) The lease contained no provision which made it applicable to the assigns of Hatley, and the lease, as to hunting rights, was not assignable and was in contravention of Article 5237, Texas Revised Civil Statutes.
(4) Plaintiff’s petition contained no allegation of waiver as required by Rule 94, Texas Rules of Civil Procedure.
(5) There was no evidence of probative value that raised fact issues as to any damages.
(6) Digby should not recover against O’Bryant or Hatley.

Digby in his pleadings sought actual damages against Hatley and O’Bryant jointly and severally in the amount of $2,300, the amount he had paid Hatley, for breach of the oral contract. He also sought exemplary damages against O’Bryant individually for $20,000.

By nineteen points of error, Digby asserts that the trial court erred in removing the case from jury deliberation and in granting defendants’ motions for instructed verdict, despite the existence of issues of material fact.

O’Bryant asserts that the trial court properly sustained his motion for instructed verdict and granted a take-nothing judgment because (a) the lease itself prohibits any assignment thereof; (b) Article 5237, Texas Revised Civil Statutes, specifically prohibits any assignment without the written consent of the lessor; (c) Digby’s pleadings did not allege waiver as required by Rule 94 of the Rules of Civil Procedure. Hatley did not file a brief.

The findings of fact in general correctly set forth the pertinent factual background. It is undisputed that (a) no written consent to a sublease or assignment of the hunting rights was obtained as required by the lease under which Hatley claims; (b) no consideration was paid to O’Bryant by Digby or by any of Digby’s guests; (c) Hatley was paid $2,300 by Digby but no part thereof was returned to Digby; (d) Hatley paid O’Bryant no part of the $2,300 received by him from Digby; and (e) there was no affirmative plea of waiver in Digby’s pleadings.

There is testimony that the lease rental provided in the original lease is $2,052 a year. In addition, Digby testified that on the occasion when he was allegedly evicted, sometimes referred to in the record as the “pond incident,” he suffered no injuries; he was not hospitalized; he suffered no disability, and he suffered no loss of earnings as a result of its occurrence. He did testify that he suffered a $2,300 loss on the lease, and his action, both from a complete reading of his pleadings and from the evidence adduced at trial, appears to be a suit for the return of the $2,300 paid by him. There is other testimony concerning events prior to the pond incident including some testimony bearing on waiver of the lease provisions by O’Bryant, which testimony was objected to by O’Bryant. There is further testimony as to the pond incident from Digby, as well as from some of his guests, regarding the alleged eviction by O’Bryant. None of the guests is a party to this suit, nor does any guest make a claim hereunder for any damages suffered.

Article 5237, Tex.Rev.Civ.Stat.Ann. (Vernon 1962), provides that “[a] person renting said lands or tenements shall not rent or lease the same during the term of said lease to any other person without first obtaining the consent of the landlord, his agent or attorney.”

It is well settled that without the consent of the landlord the subtenant is a trespasser and occupies the attitude of a stranger to the landlord. Brown v. Johnson, 118 Tex. 143, 12 S.W.2d 543 (1929); Young v. De La Garza, 368 S.W.2d 667 (Tex.Civ.App.—Dallas 1963, no writ); Richmond v. Broughton, 190 S.W.2d 842 (Tex.Civ.App.—Fort Worth 1945, writ ref’d w. o. m.).

No privity of contract exists under a sublease between sublessee and original lessor. Zeidman v. Davis, 161 Tex. 496, 342 S.W.2d 555 (1961); Board v. B & B Vending Company, 512 S.W.2d 702 (Tex.Civ.App.—Amarillo 1974, no writ); Rogers v. Burton, 496 S.W.2d 673 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.) cert. denied, 415 U.S. 921, 94 S.Ct. 1422, 39 L.Ed.2d 476 (1974).

Rule 94, Tex.R.Civ.P., provides in pertinent part that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . waiver, and any other matter constituting an avoidance or affirmative defense.”

Waiver, therefore, is an affirmative defense that must be pleaded. Tex.R.Civ.P. 94. It is undisputed from the record that waiver was not pleaded nor was it tried by consent. At the time that appellant attempted to introduce evidence touching on the matter of waiver, 0’Bryant’s attorney objected on the grounds that there was no pleading of waiver as required by Rule 94. At this time, appellant’s attorney expressly acknowledged that he was not relying on waiver and stated that he was not inferring waiver. Under appellant’s own admissions and the record before us, waiver is not in this case. Scheumack v. Simmons, 440 S.W.2d 687 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Seamless Floors By Ford, Inc. v. Value Line Homes, Inc., 438 S.W.2d 598 (Tex.Civ.App.—Fort Worth 1969, writ ref’d n. r. e.); Young v. De La Garza, 368 S.W.2d 667 (Tex.Civ.App.—Dallas 1963, no writ); Young v. Haynes, 295 S.W.2d 536 (Tex.Civ.App.—Galveston 1956, no writ); Andrews v. Powell, 242 S.W.2d 656 (Tex.Civ.App.—Texarkana 1951, no writ).

Although the right or privilege to hunt is frequently referred to as a “hunting lease,” the courts in instances have held that it is more in the nature of a personal license or a “profit á prendre” which grants privileges to hunt only to the licensee and excludes anybody else from exercising such privileges. Anderson v. Gipson, 144 S.W.2d 948 (Tex.Civ.App.— Galveston 1940, no writ); Kibbin v. McFaddin, 259 S.W. 232 (Tex.Civ. App.—Beaumont 1926, writ ref’d).

A license in real property is a privilege or authority given to a person, or retained by a person, to do some act or acts on the land of another but such license conveys no interest in or title to the property concerned. Arant v. Jaffe, 436 S.W.2d 169 (Tex.Civ.App.—Dallas 1968, no writ); 36 Tex.Jur.2d Licenses § 84 (1962). A license not supported by consideration is revocable at the will of the grantor. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962); Arant v. Jaffe, supra.

We have concluded that the take-nothing judgment as to O’Bryant should be affirmed.

The judgment as to Hatley stands in a somewhat different posture. Hatley knowingly violated the terms and provisions under which he held by making a sublease of the hunting rights without obtaining a written consent. On the basis of the oral sublease he made, he collected $2,300 although he had nothing to deliver. It appears from the record that on the basis of such oral sublease, Digby and some of his guests hunted for a portion of the hunting season, but they were evicted sometime in November 1974 and did not thereafter return. As a result of the transaction with Hatley, Digby was only able to hunt a part of the season and did not obtain the full benefit of his deal with Hatley. It is undisputed that no part of said funds were returned to Digby, although Digby testified that he made a request therefor. There is evidence that some of Digby’s guests paid him consideration for hunting privileges, but the record contains no record of the amounts thereof. We have concluded the trial court erred in entering a directed take-nothing judgment as to Hatley.

The judgment as to O’Bryant is affirmed.

The judgment as to Hatley is reversed and remanded for a new trial.

      . These points of error assert that there were material fact issues as to the ultimate conclusion; possession of the lease; the payment of the sum of $2,300; forcible eviction; ratification of the lease; waiver of consent; damages; violation of the lease provisions; applicability of Article 5237; conflict between lease and sublease; whether Digby was a trespasser; privity of contract between Digby and O’Bryant; the parties’ relative rights; and breach of contract by Hatley.

      . None of such guests are parties to this suit, and their rights, if any, are not here involved.


text:
    John PITTMAN, Appellant, v. BAPTIST MEMORIAL HOSPITAL SYSTEM and Ernest G. Sanchez, Appellee.
    No. 16054.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 25, 1978.

      John C. Laye, Jr., John L. Ray, San Antonio, for appellant.
   KLINGEMAN, Justice.

Baptist Memorial Hospital System filed suit against Ernest G. Sanchez for goods and services rendered plus attorney’s fees. Sanchez generally denied all allegations and also filed a third-party action against John Pittman for allowing a group medical hospitalization policy to lapse. Pittman failed to answer or appear. The trial court entered judgment in favor of Baptist Memorial Hospital System against Sanchez in the amount of $2,277.68, plus attorney’s fees in the sum of $500, and in favor of Sanchez against Pittman in the sum of $2,777.68. Pittman filed a motion for new trial which was overruled solely on the ground that it was not timely filed.

This case is before us without a statement of facts. Neither Baptist Memorial nor Sanchez have filed briefs herein.

Appellant Pittman asserts as points of error that (1) the trial court erred in overruling appellant’s motion for new trial on the ground that such motion was not timely filed within the time allowed by the Texas Rules of Civil Procedure; (2) the trial court erred in overruling appellant’s motion for new trial because, based on said motion, appellant is entitled to have the default judgment set aside; and (3) the appellant was unable to obtain a statement of facts because no court reporter was present at the trial of the cause.

As hereinabove recited, neither Baptist Memorial nor Sanchez has filed a brief in this appeal. Rule 419, Texas Rules of Civil Procedure, provides that any statement made by an appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party. See also Howard v. Pullicino, 519 S.W.2d 254 (Tex.Civ.App.— Austin 1975, no writ); Farley v. Farley, 503 S.W.2d 679 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.); Horton v. County of Mills, 468 S.W.2d 876 (Tex.Civ.App.—Austin 1971, no writ); Trinity Universal Insurance Co. v. Weems, 326 S.W.2d 302 (Tex.Civ.App.—Austin 1959, no writ).

It appears from the transcript that the judgment here involved was signed and entered December 29, 1977, and that appellant’s motion for new trial was filed on January 9, 1978. Appellant correctly states that the tenth day after judgment (January 8, 1978) was a Sunday and that since the motion for new trial was filed on Monday, January 9, 1978, the motion for new trial was timely filed under the Rules of Civil Procedure. Tex.R.Civ.P. 4 and 329b. Therefore, as to appellant’s first point of error, the trial court erroneously held that the motion for new trial was not timely filed.

Appellant’s third point of error complains that the trial court erred in making no record of the proceedings which precluded him from obtaining a statement of facts. There are a number of recent cases which are pertinent in this regard, including at least two decisions by this court. Miller v. Miller, 569 S.W.2d 592 (Tex.Civ.App.—San Antonio 1978, no writ); Lloyd Hurt v. Marie Ewald, Guardian, No. 15918 (Tex.Civ.App.—San Antonio Mar. 22, 1978). See also Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978); Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972); Garcia v. Kelly, 565 S.W.2d 112 (Tex.Civ.App.—Corpus Christi 1978, no writ); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref’d).

Garcia v. Kelly, supra, is basically similar to the present case. Appellant, the defendant below, did not appear or answer in Garcia, and a default judgment was taken. Appellant sought a reversal and remand because he was unable to obtain a statement of facts due to the absence of a court reporter. The Corpus Christi Court of Civil Appeals reversed and remanded the case for a new trial, holding that:

[if] an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence, a new trial should be granted in order to preserve his right of review, [citations omitted].
If the appellant was not present and was not represented by counsel when the testimony was taken, and he later discovers that no record was made, the lack of a record cannot reasonably be waived, [citations omitted]. Moreover, ‘An appellant is not required to undertake to agree with an adversary upon the facts adduced at the trial or to rely upon the unaided memory of the trial judge who decided the merits of the case in order to obtain a Statement of Facts’. Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.Sup.1978).

Garcia v. Kelly, 565 S.W.2d 112, 113 (Tex.Civ.App.—Corpus Christi 1978, no writ).

Although Baptist Memorial obtained a judgment against Sanchez, Sanchez did not file an appeal. Moreover, he has filed no brief herein. The record reflects that he is making no complaint as to the judgment entered against him. Under these circumstances, the judgment in favor of Baptist Memorial against Sanchez should be affirmed.

Pittman did not answer or appear in the original trial but timely filed a motion for new trial which was overruled. He timely filed an appeal herein. Because of the errors previously discussed, the judgment must be reversed as to Pittman.

Accordingly, the judgment in favor of Sanchez against Pittman is reversed and remanded for a new trial. The judgment against Sanchez in favor of Baptist Memorial is affirmed.

      . In Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App. — Dallas 1975, writ refd), appellant was served with citation but failed to file an answer or appear, and a default judgment was taken against it. On appeal, appellant requested a statement of facts, but the official court reporter certified that he was not at the hearing and none was made. The Dallas Court of Civil Appeals reversed and remanded the case, holding that (a) if appellant was not present and not represented by counsel when the testimony was taken, and later discovers that no record was made, the lack of a record cannot reasonably be deemed as waived; (b) an appellant who was not present and who was not represented when the testimony was taken is in no position to agree with his opponent concerning the substance of the testimony, and neither should he be required to rely on the unaided memory of the trial judge. This case contains an excellent discussion of Article 2324, Tex.Rev.Civ.Stat. Ann. (Vernon 1971), which requires the official court reporter to attend all court sessions and take shorthand notes. On appeal from retrial of the issues, the case was reversed on grounds other than those cited herein. 554 S.W.2d 216 (Tex.Civ.App. — Dallas 1977, no writ).
      Subsequent to Morgan Express, supra, the legislature amended Article 2324 by adding the words, “upon request.” Tex.Rev.Civ.Stat.Ann. art. 2324 (Vernon Supp.1978). This amendment was construed by the Austin Court of Civil Appeals in Rogers v. Rogers, 549 S.W.2d 471 (Tex.Civ.App. — Austin 1977), rev’d, 561 S.W.2d 172 (Tex.1978). In Rogers, the husband did not file an answer and did not appear in court either personally or by counsel. The court reporter did not make any notes of the testimony and consequently the husband was unable to obtain a statement of facts, which was the basis of his sole point of error. The court discusses Morgan Express, supra, and held that the amendment of Article 2324 eliminated the basis for the holding in Morgan Express and that Article 2324, as amended, no longer places a mandatory duty upon the court reporter to attend all sessions of court and take notes of the testimony offered, but instead the court reporter is burdened with that duty only after request of counsel or of a party.
      The Supreme Court granted writ of error in Rogers and rendered an opinion reversing and remanding the Rogers case for a new trial. Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978). The Supreme Court pointed out that the holding of the Court of Civil Appeals in Rogers conflicted with Smith v. Smith, 544 S.W.2d 121 (Tex.1976). Both Smith and Rogers were divorce cases, and the Supreme Court, in Rogers discussed in some detail the applicable provisions of the Texas Family Code. The Supreme Court noted some procedural and factual differences in Smith and Rogers, one of which was that, in Smith, the petitioner filed responsive pleadings but did not appear personally or by counsel at the hearing on the merits, while in Rogers, the appellant neither appeared nor answered. In neither case did the court reporter attend the trial. The court stated that the procedural and factual differences were without materiality or significance, and that the residual and controlling facts in Rogers and Smith corresponded, in that, in both cases the appealing party was unable to obtain a statement of facts from the official court reporter because the court reporter did not attend the trial of the case.


author: OSBORN, Justice.

text:
    THREE BEARS, INC., et al., Appellants, v. TRANSAMERICAN LEASING COMPANY, Appellee.
    No. 6632.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 1, 1978.
    Rehearing Denied Dec. 6, 1978.

      Lang, Cross, Ladon, Boldrick & Green, Paul M. Green, Lawrence H. Rubenstein, James N. Martin, Law Offices of Bruce Waitz, Bruce Waitz, Van H. Johnson, Robert C. Patterson, San Antonio, for appellants.
    Daniel R. Rutherford, San Antonio, for appellee.
   OPINION

OSBORN, Justice.

This case was originally decided on a procedural issue. Three Bears, Inc. v. Transamerican Leasing Company, 560 S.W.2d 183 (Tex.Civ.App.—El Paso 1977). That decision was reversed and the case remanded for a determination of the merits of the case. Transamerican Leasing Company v. Three Bears, Inc., 567 S.W.2d 799 (Tex.1978). We affirm in part, and in part reverse and render.

Three Bears, Inc. was engaged in operating a chain of hamburger stands in San Antonio. In February, 1972, Three Bears ordered restaurant equipment from Ray Pittman for three new locations. Trans-american Leasing Company proposed to actually purchase the equipment and then lease it to Three Bears. In May and June, 1973, Three Bears, joined by the G. S. and Gladys A. McCreless Trust, executed three leases in favor of Transamerican, each for a term of 60 months. The first and last monthly payments were made as provided for in the lease. No other payments were ever made because Transamerican was unable to obtain permanent “funding” or financing for the leases.

After Transamerican was unable to secure permanent financing, the G. S. and Gladys A. McCreless Trust guaranteed a loan from the First National Bank of San Antonio to Transamerican for $88,000.00 as interim financing. Eventually, the Trust paid the note and caused it to be assigned to G. S. McCreless.

Transamerican filed this suit against Three Bears and the Trust to recover on the three leases. Numerous defenses were alleged in answer to the suit. The case was submitted to the jury on issues covering conditional delivery of the leases, failure of consideration, damages, and attorney’s fees, all of which were answered favorably to Transamerican. Judgment was entered in favor of Appellee for $109,447.76, plus interest and attorney’s fees.

Following the entry of a judgment and the filing of an amended motion for new trial, it became apparent for the first time to the Court and counsel for Appellee that there had been no compliance with Article 7425b-19, Tex.Rev.Civ.Stat.Ann., which requires notice be given to each beneficiary of a trust prior to entry of a judgment in a suit involving a trust. Upon motion of the Appellee, the trial Court vacated the original judgment, notice was given to all beneficiaries, and a new judgment was entered resulting in this appeal.

The first three points complain of the trial Court entering judgment and not granting a mistrial because notice of the suit was not given to the beneficiaries prior to the verdict in the case. The Statute in question, Article 7425b-19, provides in part as follows:

' “Whenever a trustee shall make a contract which is within his powers [] as trustee, or a predecessor trustee shall have made such a contract, and a cause of action arises thereon:
“B. No judgment shall be rendered in favor of the plaintiff in such action unless he proves that within thirty (30) days after the beginning of such action, or within such other time as the court may fix, and more than thirty (30) days prior to obtaining the judgment, he notified each of the beneficiaries * * * of the existence and nature of the action. * * ”

The day after the original judgment was vacated, the trial Court entered an order directing the Clerk to issue notice to all beneficiaries of the trust, including a Guardian Ad Litem appointed to represent the interests of the minor contingent beneficiaries, notifying them of the pendency of the suit and citing them to appear and show cause why judgment should not be entered for the Plaintiff. Four of those cited, G. S. McCreless, Gladys A. McCreless, Grace Ann McCreless Durr, and Merry Christine McCreless Nielsen, the latter two being children of G. S. and Gladys, had all appeared and answered in the original suit as trustees of the Trust. Those cited for the first time were the present wife of G. S. McCreless, Effie Azalea McCreless, and four grandchildren of G. S. and Gladys McCreless, namely, Robert Gordon Durr, Kenneth Wesley Durr, Cynthia Lynn Nielsen and Carolyn Ann Nielsen, the last two being minors.

Clearly, the Statute gives the trial Court some discretion as to the requirement for notice, but does require that it be at least thirty days prior to judgment. In this case, the trial Judge ordered the notice after the verdict and then entered judgment more than thirty days after the notices were served. Thus, there technically was a compliance with the Statute. Normally, we would expect the trial Judge to require such notice be given within thirty days after suit was filed, or at least very shortly thereafter, if the notice was to have any meaning and effect.

But in this case, there was justification for the trial Court permitting notice even after the verdict. First of all, the principal beneficiaries were all participants in the case and had answered as Defendants in their capacity as trustees. In addition, all of the beneficiaries were closely related and had a common interest in the issues in litigation. All of those cited after the verdict were contingent beneficiaries. Where there is no conflict in the interest of the trustees and the beneficiaries, the trust may be represented by trustees, and the beneficiaries are bound under the doctrine of virtual representation. Mason v. Mason, 366 S.W.2d 552 (Tex.1963); Smith v. Wayman, 148 Tex. 318, 224 S.W.2d 211 (1949); Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945). The first three points of error are overruled.

The next point asserts that the trustees had no power to delegate their authority to G. S. McCreless and Robert E, Durr, as attorneys in fact, to execute the leases in question. The argument presented may be a valid one. See 1 Restatement of Trusts 2d, Sec. 171 (1959); Bogert, Trusts & Trustees 2d, Sec. 555 (1960). But the fourth amended original answer filed by the trustees and upon which they went to trial does not deny under oath the authority of the attorneys in fact to execute the lease agreement as required by Rule 93(h), Tex.R. Civ.P. Instead, the answer affirmatively alleges under oath that “G. S. McCRELESS and ROBERT E. DURR, acting for these Defendants [the trustees], made and executed the three (3) leases * * *.” Where the authority is not denied as required by Rule 93(h), it is admitted. Fail v. Lee, 535 S.W.2d 203 (Tex.Civ.App.—Fort Worth 1976, no writ). The fourth point of error is overruled.

The fifth point of error asserts error in entering judgment against the Trust because, as a matter of law, the trustees could not bind the Trust or the Trust assets as guarantor or surety for Three Bears, Inc. In connection with this point, it should be noted that the Trust was a substantial stockholder in Three Bears, Inc.

The Appellant begins its argument with the well settled principle that: “The safety of the trust fund is the first care of the law, and on this depends every rule which has been made for the conduct of trustees.” Republic Nat. Bank & Trust Co. v. Bruce, 130 Tex. 136, 105 S.W.2d 882 (1937); Brault v. Bigham, 493 S.W.2d 576 (Tex.Civ.App.—Waco 1973, writ ref’d n. r. e.). The analogy is then made that a corporation has no authority to stand as a surety or guarantor for another’s debt in the absence of express charter power. L. G. Balfour Co. v. Gossett, 131 Tex. 348, 115 S.W.2d 594 (1938); Rio Refrigeration Company v. Thermal Supply of Harlingen, 368 S.W.2d 128 (Tex.Civ.App.—San Antonio 1963, no writ). It is also noted that infants are not bound on a suretyship agreement, and at one time the same rule applied to married women. Walker v. Stokes Bros. & Co., 262 S.W. 158 (Tex.Civ.App.—Austin 1924, no writ); Red River Nat. Bank v. Ferguson, 192 S.W. 1088 (Tex.Civ.App.—Texarkana 1917), aff’d, 109 Tex. 287, 206 S.W. 923 (1918). Thus, the argument is made that surely such limitation of power must exist with regard to trustees, particularly where there is no express grant of such power.

The Appellee urges that such power does exist and relies upon the Texas Trust Act, and particularly Article 7425b-25, paras. E and J. It also relies upon certain provisions of the trust agreement including Subparagraph K, which authorizes the borrowing of money. Our reading of the trust agreement and the Texas Trust Act does not disclose any express grant of authority to trustees to act as sureties or guarantors for the debt of another. First, with regard to the powers under the trust agreement itself, Subparagraph K provides as follows:

“K. To borrow money (from itself individually or from others), upon such terms and conditions as it may determine and to mortgage and pledge estate and trust assets as security for the repayment thereof; and to lend trust funds, on such terms and conditions as the Trustees may determine, to any beneficiary of the Trust, in an amount not exceeding the pro rata beneficial interest in the trust corpus of such beneficiary.”

The transaction in question with Trans-american Leasing Company did not involve a loan but three leases which were guaranteed by the Trust. Clearly, Subparagraph K does not provide any express authority to the trustees to enter into an agreement as guarantor or surety on behalf of the Trust. Insofar as some of the stock in Three Bears, Inc., was owned by third parties, there would be no benefit to the Trust in guarantying the leases made by Three Bears, Inc. Such a guaranty agreement could be, and in this case was, detrimental to the interest of the beneficiaries of the Trust. Insofar as the trustees may have a direct interest in the lease, it should be noted that it would be contrary to the public policy of this State to permit the language of a trust instrument to authorize self-dealing by a trustee. Langford v. Shamberger, 417 S.W.2d 438 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n. r. e.).

With regard to the Texas Trust Act, Paragraph E only gives the trustee the right to contest or settle claims against the trust. It has no application to the facts of this case. Paragraph J provides:

“The powers, duties, and responsibilities stated in this Act shall not be deemed to exclude other implied powers, duties, or responsibilities not inconsistent herewith.”

In considering implied powers, it must be noted that a trustee may not use his position to obtain any advantage inconsistent with his primary duty to the beneficiaries. MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944). Likewise, trustees cannot make a profit from the trust funds committed to them by using the money of the trust in their own business. Slay v. Burnett Trust, supra.

The facts in this case are somewhat similar to those in State of California v. Larkin, 413 F.Supp. 978 (N.D.Cal.1976). In that case, a trust executed a loan guaranty to secure a loan in favor of one of the grantors of the trust. The evidence established that if the business of the grantor was successful, there would be additional funding of the trust. The Court concluded that the deed of trust given to secure the loan guaranty upon the real estate owned by the trust constituted a breach of trust, and that it made no difference that the trustees had acted in good faith in guarantying the loan. The net effect of the holding in the case is that the loan guaranty and deed of trust did not place a valid lien upon the trust assets. Following that case, we reach the same results and hold that the lease agreement guaranteed by the trustees did not bind the Trust assets. The fifth point of error is sustained.

The sixth point asserts error in entering judgment against the Trust because it is asserted a trust, as an entity, cannot be sued. The contention made is a correct one, but the point has become moot because of our having sustained Point of Error No. 5. Regardless of that, answer was filed, not by the Trust, but by the four trustees, and judgment has been entered against the four trustees in their capacities as trustees of the Trust, as well as against the Trust itself. Therefore, we find no reversible error insofar as the form of the judgment is concerned, and the point of error is overruled. See Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975).

The next three points assert the trial Court erred in sustaining a motion in limine and thereby excluding evidence and defenses asserting that the leases were in fact purchase agreements and that the payments included usurious interest. It is asserted, and evidence was offered by bill of exception to show, that there was an oral agreement that at the end of the leasing term, Three Bears, Inc. could pay a ten percent option figure and purchase the leased equipment. Appellants contend that the equipment cost Transamerican approximately $88,000.00, and the difference between that amount and the lease payments of about $174,000.00 was usurious interest and finance charges on equipment being sold under a purchase option. The three lease agreements are on printed forms and each provides that “[t]his Lease constitutes the sole agreement of the parties with respect to the subject matter thereof, may not be changed or modified except in writing * * There is nothing in the agreement to indicate or suggest a sale of the described property, an option to purchase, or anything other than a lease of the listed property. The basic provisions of the parol evidence rule are embodied in Section 2.202 of the Texas Business & Commerce Code. We believe those provisions prevent the introduction of evidence to change the clear language of a lease into an option sales agreement. Santos v. Mid-Continent Refrigerator Company, 469 S.W.2d 24 (Tex.Civ.App.—Corpus Christi), writ ref’d n. r. e., 471 S.W.2d 568 (Tex.1971); Chaplin v. Milne, 555 S.W.2d 161 (Tex.Civ.App.—El Paso 1977, no writ).

The cases upon which Appellants rely, Davis Brothers v. Misco Leasing, Inc., 508 S.W.2d 908 (Tex.Civ.App.—Amarillo 1974, no writ); First National Bank of Fort Smith, Arkansas v. Phillips, 261 F.2d 588 (5th Cir. 1958); and Beckwith Machinery Co. v. Matthews, 57 A.2d 796, 175 A.L.R. 1360 (Md.1948), are all cases in which there was a written instrument, either the lease agreement itself or a letter, to reflect the right to purchase, and no oral evidence was required to establish the right to purchase. Thus, the determination by those Courts to consider the real intent of the parties was not the result of oral evidence which would engraft new terms on an express written agreement. We conclude those cases are not applicable in this case where there is no writing reflecting a right to purchase, and we decline to give them any application in this case. Points of Error Nos. 7, 8, and 9 are overruled.

The Appellants’ next fourteen points of error attack the jury findings on conditional delivery of the leases, failure of consideration and damages, with points of error asserting “no evidence,” “insufficient evidence,” and “against the great weight and preponderance of the evidence.” In passing on the “no evidence” points, we have considered only that evidence favorable to the jury’s verdict, and on the other points we have considered all of the evidence. Certainly, the evidence is in great conflict. Witnesses for Appellants testified as to representations concerning the requirement that permanent funding was necessary for the leases to be valid and binding. Witnesses for Appellees denied such representations and even said they thought the loan obtained at the First National Bank in San Antonio constituted funding for the leases. At the same time, they admitted that the thirty-day note was not permanent but a temporary arrangement. Payments were made on the leases the last of May and the first part of June, 1972, when the kitchen equipment was accepted. Apparently, no conditions were placed upon those payments, and at that time apparently everyone considered the leases valid. At a meeting in September, everyone involved with the lease problems was concerned about financing and lease payments, but apparently everyone recognized the leases as valid. With regard to the damages, the jury answered Issue No. 5 to the exact penny as calculated and testified to by Mr. Dailey, President of Trans-american Leasing Company. His calculations were based on the total payments provided for in the leases, less payments made in May and June and the amount paid by the Trust on Transamerican’s note at the First National Bank. No question is raised as to whether or not the measure of damages as submitted to the jury is a proper one, and we do not pass on that question. We conclude that there is some evidence to support the jury’s answers to Special Issues Nos. 1,2, and 5, and Points of Error Nos. 10 through 23 are overruled.

The next three points of error complain about rulings of the trial Court concerning admission of evidence. We conclude that the points do not present reversible error under Rule 434, Tex.R.Civ.P., and they are overruled.

Points of Error Nos. 27 and 28 complain about the award of attorney’s fees. In accordance with the jury findings, the Court awarded attorney’s fees in the amount of $18,810.00, plus the additional sum of $3,500.00 for attorney’s fees in connection with any appeal to the Court of Civil Appeals, and $2,500.00 attorney’s fees for services in connection with any appeal to the Supreme Court of Texas. The lease provides that if lessee fails to make payments when due, lessee’s right to possession of the leased property shall cease. It then provides that upon repossession of the leased property, the lessor shall have the right to rerent or sell the leased property, and in either event recover an attorney’s fee of fifteen percent. Obviously, such clause for attorney’s fees contemplates the amount being based upon a deficiency after disposition of the leased property. In this case, the Appellee did not comply with the lease provision providing for repossession of the leased property and then either rerent-ing or selling the leased equipment. Instead, suit was brought for the total amount of the lease payments provided for in the lease agreement. We conclude that the Appellee may not recover attorney’s fees under a written contract when the conditions precedent (repossession of the leased property and rerenting or sale of the same) to the recovery of such attorney’s fees have not been complied with. Thus, we sustain Point of Error No. 27. If we should be in error in such holding, then we would sustain Point of Error No. 28 and hold that the maximum amount of attorney’s fees that could be recovered would be fifteen percent of the sum of $109,447.76 awarded as damages, and any fee awarded in excess of $16,417.16 is excessive, but such error can be cured by a remittitur. If it should be determined on further appeal that we are in error in sustaining Point of Error No. 27, and the case remanded for a consideration of Point 28, we would sustain that point and order a remittitur.

The last three points of error assert the trial Court erred in ruling on contentions presented by Appellants that the three leases are unconscionable under Section 2.302 of the Texas Business and Commerce Code. This provision of the Code relates to contracts or any clause of the contract found to be unconscionable. But Section 2.106 provides that “contract” and “agreement” are limited to those relating to the present or future sale of goods. Thus, we conclude that Section 2.302 has no application to this lease agreement which did not involve a sale. See Harrington, “Uncon-scionability Under the Uniform Commercial Code,” 10 S.Tex.L.Jr. 203, 212-213 (1968). Points of Error Nos. 29, 30, and 31 are overruled.

The judgment against the G. S. and Gladys A. McCreless Trust, and G. S. McCreless, Gladys A. McCreless, Grace Ann McCreless Durr, and Merry Christine McCreless Nielsen, in their capacities as trustees of the said G. S. and Gladys A. McCreless Trust, is reversed and rendered. The judgment against Three Bears, Inc. for the sum of $109,447.76 with interest is affirmed. The judgment against Three Bears, Inc. for attorney’s fees in the amount of $18,810.00, plus the additional sums of $6,000.00 in the event of certain appeals, is reversed and rendered. That part of the judgment awarding Robert C. Patterson guardian ad litem fees against Three Bears, Inc. is affirmed, and that part of the judgment awarding such fees against G. S. McCreless and Gladys A. McCreless Trust, and G. S. McCreless, Gladys A. McCreless, Grace Ann McCreless Durr, and Merry Christine McCreless Nielsen, in their capacities as trustees of said G. S. and Gladys A. McCreless Trust, is reversed and rendered.

All costs are taxed against Three Bears, Inc., and if the guardian ad litem fees are not collected from such Defendant, the same shall be taxed against and paid by the Appellee, Transamerican Leasing Company.

      . For purposes of discussion, it shall be assumed in considering the first three points of error that the contract is within the powers of the trustee. That issue must actually be decided under the fifth point of error.


author: MURRAY, Justice.

text:
    Ralph H. ROACH and Ralph H. Roach Petro, Ltd. # 2, Appellants, v. CHEVRON U.S.A., INC., Appellee.
    No. 16092.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 1, 1978.

      Pickering & Vendig, Don W. Davis, Collie, McSpedden, Roberts & Davis, Dallas, for appellants.
    George D. Byfield, C. Morris Davis, Marc 0. Knisely McGinnis, Lochridge & Kilgore, Austin, for appellees.
   MURRAY, Justice.

This is an appeal from an order overruling a plea of privilege. Chevron U.S.A., Inc., hereinafter referred to as Chevron, brought suit in Karnes County, Texas, against Ralph H.. Roach and Ralph H. Roach Petro, Ltd. No. 2, hereinafter referred to as Roach. In its petition, Chevron alleged that its suit was for declaratory and injunctive relief in connection with Roach’s asserted rights under two oil and gas leases as against the rights of Chevron under a mining lease. The defendants filed a joint plea of privilege to be sued in Dallas County, the place of their residence. Defendants pleaded that no exception to exclusive venue in the county of one’s residence existed and, further, that venue lies in Dallas County pursuant to the provisions of subdivision 30 of Article 1995 and Article 4656 of Texas Revised Civil Statutes. Chevron filed a controverting affidavit claiming the right to maintain suit against Roach in Karnes County pursuant to subdivision 14 of Article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon 1964). After hearing before the court, the plea of privilege was overruled.

The dispute in this case centers on who has superior rights to use the surface of 192 acres in Karnes County under lease by both parties. Chevron owns a surface mining lease on the 192 acres which allows it to conduct open pit mining operations from the surface down to a depth of 250 feet. This lease grants to Chevron the right to use so much of the surface as is reasonably necessary to carry out its mining operations. In addition, Chevron owns the surface fee in part of the land under two general warranty deeds. On the other hand, Roach owns two oil and gas leases covering the same property. Roach re-entered an abandoned well located within the disputed tract and reworked it, which resulted in production of oil. Under its leases, Roach is entitled to use five acres around this well, which is not located within Chevron’s surface fee estate, and a single access road to conduct operations on such well. Presently, Chevron’s strip mining operation for uranium reserves is approaching the disputed tract. As a result, Chevron brought suit claiming superior rights to use all of the disputed tract necessary for its mining operations and seeking possession of the tract to the exclusion of Roach during the period of time that Chevron will need the disputed tract to carry out its open pit mining operations. Chevron asks that such possession be enforced by issuance of an injunction against Roach.

Appellants’ only contention is that the trial court erred in overruling their joint plea of privilege because the principal and primary relief sought by Chevron was in-junctive in nature; therefore, venue lies in Dallas County under Article 4656. Appel-lee, Chevron, urges that the primary purpose of this suit is not to secure injunctive relief; rather, this is a suit concerning land as contemplated by subdivision 14 of Article 1995.

The pertinent portions of the statutes involved are as follows:

Art. 1995. Venue, general rule
No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, . . . must be brought in the county in which the land, or a part thereof, may lie.
30. Special Venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.
Art. 4656. Jurisdiction for trial.
[W]rits of injunction for other causes, if the party against whom it is granted be an inhabitant of the State, shall be returnable to and tried in the district or county court of the county in which such party has his domicile, ....

Tex.Rev.Civ.Stat.Ann. art. 1995 §§ 14 and 30 (Vernon 1964) and art. 4656 (Vernon 1952).

Although both Article 4656 and subdivision 14 of Article 1995 appear to conflict, the Supreme Court harmonized them in Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957). In Brown, the Supreme Court held:

The directions in both Article 1995, § 14 and Article 4656 are stated in mandatory terms. They need not be and have not been construed as conflicting. Whenever it can properly be said from the pleadings that the issuance of an injunction is merely ancillary to a judgment awarding a recovery of lands or quieting the title thereto, Article 1995, § 14 has application, (citations omitted). On the other hand where the petition discloses that the issuance of a perpetual injunction is the primary and principal relief sought, the special venue provisions of Article 4656 control.

306 S.W.2d at 708. Under this standard, the only question presented is whether this is a suit for the recovery of land within the meaning of subdivision 14 of Article 1995, or a suit primarily to secure an injunction.

To satisfy subdivision 14, two venue facts must be established: (1) the location of the land, and (2) the nature of plaintiff’s claim. 1 McDonald, Texas Civil Practice, Venue § 4.22.1 (1965). Since it is undisputed that the land is located in Karnes County, we need only determine the nature of Chevron’s claim. The nature of plaintiff’s claim is determined by the principal right asserted and the relief sought for the breach thereof. Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957); Marshall v. Ballard, 314 S.W.2d 368 (Tex.Civ.App.—Eastland 1958, writ dism’d). Therefore, we must look first to plaintiff’s pleadings and the relief he seeks. Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955).

Chevron states in its petition that this is a suit for declaratory judgment and injunc-tive relief. Chevron alleges that its rights and interest are superior to those of Roach because its mining lease is prior in time to the Roach oil and gas leases. Chevron also alleges that it has a right to use all of the disputed tract necessary for its mining operations and seeks exclusive possession of the surface and the subsurface (down to 250 feet) of the disputed tract for the duration of its mining operation. Such possession is to be enforced by injunction, both mandatory and prohibitory. Accordingly, Chevron seeks to enjoin within the 192 acres the operation of the well, the drilling of any other wells, the construction and installation of pipelines, roads or other facilities, and to require Roach to plug the well below a depth of 250 feet and to cease production until Chevron has completed its use of the land.

Appellants contend that the nature of the suit as shown by Chevron’s pleadings is not one which concerns land as contemplated by subdivision 14 of Article 1995. Appellants maintain that there are no allegations in the petition as to any conflict in title or ownership between the mineral estates of the parties. The allegations merely show a conflict between leaseholders as to temporary use of the surface. Consequently, appellants argue that the primary relief sought by Chevron is to enjoin Roach’s operation of the well and use of the property which cannot be considered ancillary or subordinate to other relief sought.

In their brief and argument to this court, appellants primarily rely on O’Connor v. Shannon, 30 S.W. 1096 (Tex.Civ.App.—1895, writ dism’d). Appellants cite and discuss this case as authority for their contention that surface or strip mining does not present a case within the terminology of subdivision 14 of Article 1995. In O’Con-nor, plaintiffs sought an injunction to restrain defendants from entering upon land and removing stone from the quarry and also sought damages for the value of stone removed. Plaintiffs alleged that the defendants had conveyed to them all the stone on a certain tract of land together with the exclusive right to enter upon the land in order to quarry the stone. Plaintiffs also alleged that defendants had entered upon the land in derogation of plaintiffs’ rights and quarried and converted the stone to defendants’ own use. Defendants sought transfer of the suit to the county of the land’s situs under a predecessor statute to subdivision 14 of Article 1995, which the trial court denied. In upholding this venue decision, the appellate court said that “the suit was merely for the purpose of enjoining appellants from interfering with appel-lees’ exclusive right to quarry stone from such land, and to recover damages . .” and it was not a suit for recovery of land within the meaning of that statute which was in substance identical to subdivision 14.

In O’Connor, the suit was primarily for an injunction which required interpretation of a contract between the parties. The case did not concern conflicting claims to the same surface of land by two valid underlying mineral leases or an invasion of rights appurtenant to interests in land, as involved herein. The facts of O’Connor are, therefore, distinguishable from the facts of the instant case, and the holding therein does not in our opinion support appellants’ contention.

Under its mining lease, Chevron owns an interest in land. Benavides v. Hunt, 79 Tex. 383, 15 S.W. 396 (1891); Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., 267 S.W. 688 (Tex.Comm’n App. 1925, judgmt adopted). The oil and gas leases give Roach a determinable fee in the oil and gas in place Tennant v. Dunn, 130 Tex. 285, 110 S.W.2d 53 (1937); W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929), which is also an interest in land. Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021 (1934); Martin v. Dial, 57 S.W.2d 75 (Tex.Comm’n App.1933, judgmt adopted). Under both of these leases, rights to the surface are incident to the ownership of these interests in land.

It has been held that “a suit involving title to land or conflicting claims to land, whatever its form, comes within the provisions of subdivision 14.” Marshall v. Ballard, 314 S.W.2d at 371. See Thomson v. Locke, 66 Tex. 383, 1 S.W. 112 (1886). Subdivision 14 applies when there has been an invasion of the land itself or of a right appurtenant thereto. Brown v. Gulf Television Co., 157 Tex. at 611, 306 S.W.2d at 709. Appellants admit that plaintiff’s allegations present a case of conflict between leaseholders as to temporary use of the surface. Therefore, subdivision 14 controls because such a conflict affects rights appurtenant to the ownership of interests in land. The primary relief requested herein is a determination and declaration of who has superior rights to use the surface of this land. The issuance of an injunction is merely ancillary to Chevron’s request for recovery of the land, for removal of incum-brances to title of land and for quieting its title.

On this issue, we consider the case of Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., 267 S.W. 688 (Tex.Comm’n App.1925), judgmt adopted), as controlling. In Uvalde Rock Asphalt, the only relief sought by plaintiff was to enjoin the Asphalt Belt Railway Company from building a railroad track on its right-of-way which crossed land in which plaintiff claimed it had a mineral interest consisting of rock asphalt. Plaintiff further alleged that it was vested with possession of the land, particularly the surface, for the purpose of developing the mineral deposits. The possession of the surface was vital because the rock asphalt could only be removed by strip mining. The Commission of Appeals held that since the mineral interest claimed by plaintiff was an interest in land and the building of a railroad across the land would deprive him of possession of his property, the suit was in effect one of trespass to try title and the injunction was ancillary to the main cause of action. As a result, venue was proper in the county where the land was located under subdivision 14.

Relying on Uvalde Rock Asphalt Co. and numerous other cases, the court in Marshall v. Ballard stated that:

[Sjuits which required the determination of a question concerning title to land, or the right to an interest in, or the use of, or damages to the land itself, are suits involving title to land as contemplated by Subdivision 14 even though the only relief sought is an injunction. It is held in such cases that the injunctive relief is ancillary to the alleged cause of action, the basis of which is damage or injury to the land itself, or a disputed claim to the title to land, or some right or interest appurtenant thereto, (emphasis added)

314 S.W.2d at 372. Chevron and Roach primarily have a conflict over rights to an interest in and the use of the surface of the 192-acre tract. Having clear title to different minerals under the same land, Chevron and Roach have a disputed claim to some right or interest appurtenant to the title to land.

In venue cases which have involved claims for damages to crops, loss of profits to a business located on land or a decrease in the value of land for business purposes, it has been held that such cases do not involve land or damages thereto as contemplated by subdivision 14 because there was no invasion of the land itself or a right appurtenant thereto. No question concerning any interest in or title to the land was material to a disposition of these cases. Marshall v. Ballard, 314 S.W.2d at 372-373. The nature of Chevron’s claim does not come within the ambit of the above-described cases. In Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417 (1959), Judge Norvell cited Marshall with approval holding that it did not conflict with the Supreme Court’s holding in Brown v. Gulf Television Co.

We conclude that the injunctive relief sought by Chevron was ancillary to and in protection of the principal right asserted in its pleadings. Consequently, the nature of the suit comes within the meaning of subdivision 14 of Article 1995. The trial court properly overruled appellants’ joint plea of privilege to be sued in the county of their residence.

The judgment of the trial court is affirmed.