source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Yvonne Marie STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. 58359.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 19, 1979.
    Rehearing En Banc Denied Jan. 16, 1980.
    Will Gray, Houston, court appointed, for appellant.
    John B. Holmes, Jr., Dist. Atty., James C. Brough, and James T. Jordan, Asst. Dist. Attys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of murder wherein the jury assessed punishment at confinement in the Texas Department of Corrections for a term of years.

At the outset we are met with appellant’s contention that the trial court erred in that its jury charge authorized a conviction for murder on a theory not alleged in the indictment. We agree and, accordingly, must reverse the judgment below.

The indictment in pertinent part alleged that appellant did:

“ . . . intentionally and knowingly cause the death of Shirdie Tates by cutting and stabbing him with a knife . . ”

However, in applying the law to the facts, the trial court charged the jury as follows:

“Now if you should find and believe from the evidence beyond a reasonable doubt that on or about the 17th day of June, 1976, in Harris County, Texas, the defendant, Yvonne Marie Stewart, did intentionally or knowingly cause the death of Shirdie Tates by cutting and stabbing him with a knife or did then and there intend to cause serious bodily injury to the said Shirdie Tates and with said intent to cause such injury did commit an act clearly dangerous to human life, to-wit, cutting and stabbing Shirdie Tates with a knife and causing the death of the said Shirdie Tates as alleged in the indictment, then you will find the defendant guilty of murder.”

Appellant was clearly charged with murder under the ambit of V.T.C.A. Penal Code, § 19.02(a)(1), which provides that a person commits an offense if he “intentionally or. knowingly causes the death of an individual.” Yet a perusal of the jury charge reveals that the jury was in fact authorized to find appellant guilty of murder not only under § 19.02(a)(1), the theory charged in the indictment, but also under § 19.02(a)(2), which provides that a person commits an offense if he “intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.” This Court has consistently held that where the trial court’s application of the law to the facts includes and consequently authorizes a conviction on a theory not alleged in the indictment, fundamental error exists. See, e. g., Smith v. State, 574 S.W.2d 551 (Tex.Cr.App.1978); Bridges v. State, 574 S.W.2d 143 (Tex.Cr.App.1978); Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.1978).

The State, however, relies on Plunkett v. State, 580 S.W.2d 815 (Tex.Cr.App.1979) (on rehearing), for the proposition that the additional language contained in the instant charge is surplusage and that fundamental error is therefore not reflected. An examination of the respective jury charges reveals that the State’s contention is without merit.

In Plunkett, supra, a majority of this Court on its own motion for rehearing held that, while the charge in Plunkett was erroneous, it did not authorize a conviction on a theory not alleged in the indictment. The majority reached this result by pointing out that in instructing the jury on the abstract law the trial court incorrectly included an alternative means of committing murder, yet the affirmative application of the law to the facts did not contain this alternative theory. Instead, the affirmative application of the law to the facts authorized a conviction if, and only if, the jury found beyond a reasonable doubt that the accused did intentionally or knowingly cause the death of an individual by striking her with his hands.

In the instant case, the application of the law to the facts, unlike Plunkett, did contain an alternative theory under which conviction could be had. This was clearly fundamental error, see Plunkett v. State, supra, at 822, n.2, and this conviction must be set aside.

For the error found, the judgment is reversed and the cause remanded.

      . AH emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.


author: W. C. DAVIS, Judge.

text:
    Lee Andrew MORING, Appellant, v. The STATE of Texas, Appellee.
    No. 60001.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 19, 1979.
    Rehearing En Banc Denied Jan. 16, 1980.

      Frank Blazek, Huntsville, for appellant.
    Erwin G. Ernst, Dist. Atty., Huntsville, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for murder, wherein the jury assessed punishment at fifty (50) years.

In his sole ground of error, appellant contends that the trial court fundamentally erred in its charge to the jury, in that the charge authorized conviction for murder on a theory not alleged in the indictment. We agree. V.T.C.A. Penal Code, Sec. 19.02, provides that:

“(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual . . . ”
The indictment alleged that appellant “intentionally and knowingly cause[d] the death of Matthew O’Bryant by shooting him with a gun.”

The trial court charged the jury on both theories, rather than just that charged in the indictment. The charge stated:

“Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.
Now if you believe from the evidence beyond a reasonable doubt that the defendant, Lee Andrew Moring, did intentionally or knowingly in Walker County, Texas, on or about the 7th day of July 1977, cause the death of Matthew O’Bryant by shooting him with a pistol, or that the defendant did then and there intend to cause serious bodily injury to the said Matthew O’Bryant and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit: shooting the said Matthew O’Bryant with a pistol and causing the death of the said Matthew O’Bryant, then you will find the defendant guilty of murder.” (Emphasis added)

It is fundamental error for the court’s charge to authorize conviction on a theory not alleged in the indictment. See Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Whitlow v. State, 567 S.W.2d 522 (Tex.Cr.App.1978); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977). Cf. Plunkett v. State, 580 S.W.2d 815 (Tex.Cr.App.1979) (on Motion for Rehearing).

Accordingly, the judgment is reversed and the cause remanded.


author: YOUNG, Justice.

text:
    DOVER CORPORATION and J. R. Preis, d/b/a Coastal Bend Sales, Appellants, v. Sylvia PEREZ, Individually and as Temporary Administratrix of the Estate of Jesse E. Perez, Deceased, and as Next Friend of Margo Perez and Yvett Perez, Minors, Appellee.
    No. 1372.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 21, 1979.
    For original opinion, see 587 S.W.2d 761 (Tex.Civ.App.).
   SUPPLEMENTAL OPINION ON THE FILING OF REMITTITUR

YOUNG, Justice.

This Court has suggested that appellee remit the sum of $350,000.00 out of the amount awarded to her individually as set forth in the original opinion. The appellee has filed a remittitur in the amount suggested by this Court.

Appellant J. R. Preis and Appellee Perez filed motions for rehearing. These motions are hereby stricken as prematurely filed because they were tendered prior to the date a decision or judgment was rendered. Rule 458, T.R.C.P.

The remittitur filed by appellee was conditioned upon the Court’s ruling on her motion for rehearing. Appellant J. R. Preis filed a motion to reverse the judgment of the trial court and remand- the cause due to the conditional nature of appellee’s remitti-tur. It is not necessary for us to consider appellant’s motion because we consider ap-pellee’s remittitur unconditional. Therefore, appellant Preis’ motion to reverse and remand is denied.

Therefore, in accordance with the opinion of this Court heretofore announced, the judgment of the trial court is reformed to the extent of the amount hereby remitted by the appellee so that the amount of judgment against the appellants is reduced to the sum of $600,000.00.

The judgment of the trial court as herein reformed is hereby affirmed.


author: MASSEY, Chief Justice.

text:
    Delores Duncan MITCHELL et al., Appellants, v. Carol WEBB d/b/a Carol Webb Motor Co., Appellee.
    No. 18209.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 25, 1979.

      Anderson, Anderson & Rodriguez and Carol Campbell, Wichita Falls, for appellants.
    Gibson, Darden & Hotchkiss and Tony Hotchkiss, Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Justice.

This is an appeal from a default judgment. The trial court found Webb, appel-lee and plaintiff below, to have sustained $5,280.00 actual damages by the fault of the "Mitchells. Webb’s damages, for purposes of the judgment, were trebled by operation of the Texas Deceptive Trade Practice — Consumer Protection Act. Tex.Bus. & Comm. Code Ann. § 17.41 et seq. (Supp.1978). Such act will be hereinafter referred to as the “D.T.P.A.”. By the judgment Webb was also granted $1,100.00 as attorney’s fees. The Mitchells appealed.

Judgment is reformed, and as reformed is affirmed.

This case involves two pickup trucks. The first pickup was wrecked. A salvage title was issued for it and the title to it was ultimately transferred to the Mitchells, who do business as City Auto Parts in Wichita Falls. What happened to the first pickup after that point is not known. Webb alleged that the Mitchells put the serial number of the wrecked pickup on a second pickup, which had been stolen, and then obtained a forged title for the second pickup based on the serial number of the wrecked vehicle. Further alleged is that the Mitchells participated in title transfers of the second pickup, initially to one Schults, and then in concert with Schults, to Webb, at a purchase price of $4,500.00. Webb, who does business as Carol Webb Motor Company, purchased the truck for purposes of resale. All further references will be to the second pickup truck.

While the truck was on Webb’s car lot, it was stolen. It was later located in Colorado. Webb paid out $280.00 in expenses of recovery.- Thereafter, Webb sold the truck to Austin Moore for $5,000.00. Afterward Moore learned from law enforcement authorities that the truck was stolen. Moore surrendered the truck and demanded the return of his $5,000.00 purchase price from Webb. Webb paid $5,000.00 to Moore. Then he instituted legal action against the Mitchells. The latter, though served with process, failed to timely answer. At a proper time Webb obtained his judgment by default.

One of the theories upon which Webb based his cause of action was a violation of the D.T.P.A. Webb plead that the Mitch-ells had acted in a false, misleading and deceptive manner in the conduct of their trade or commerce in representing that they were the owners of the stolen pickup, when in fact they knew they were not. Webb also plead that he had been damaged in the amount of $5,280.00.

At the hearing upon the Mitchells’ default the trial court received evidence in connection with the damages Webb alleged in his petition and on attorney’s fees. Webb was found to have sustained $5,280.00 in actual damages, which were trebled for purposes of judgment. $1,100.00 attorney’s fees were granted as reasonable expenses necessarily incurred in prosecuting the suit.

Within ten days after the default judgment was taken, the Mitchells filed a. motion for a new trial. Their motion alleged that failure to answer was not the result of intentional or conscious indifference on their part, that they had a meritorious defense, and that the granting of the motion for the new trial would not delay or otherwise injure Webb.

After a hearing on the motion, the trial court made the specific finding, among others, that the failure of the Mitchells to file an answer was not due to intentional or conscious indifference and was due to an accident or mistake. However, the court denied the Mitchells’ motion for a new trial.

Through points .of error one through four, the Mitchells argue that the trial court abused its discretion by failing to grant a new trial. In points of error five and six, they challenge the $5,280.00 damage finding on the grounds that there is no evidence and insufficient evidence to support that portion of the judgment. In points of error seven and eight, they challenge the award of attorney’s fees on the grounds that there is no evidence and insufficient evidence to support that portion of the judgment. Facts in addition to those already stated will be supplied as necessary in our discussion.

I. ABUSE OF DISCRETION

The law is well settled that there are certain prerequisites which a moving party must meet in order to set aside a default judgment and obtain a new trial. Once these prerequisites are met, it is within the discretion of the trial court to decide whether the facts of the case warrant vacation of the default judgment and the granting of a new trial. United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958, 959 (Tex.1976). It is apparent that the process directed at having the default judgment set aside and a new trial granted is in the nature of an equitable proceeding. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939); 4 McDonald, Texas Trial Practice p. 266 “New Trial” § 18.10.1 (1971) “(Grounds for New Trial) — After Judgment by Default or in Defendant’s Absence, Equitable Grounds”.

One of the prerequisites to entitlement to a new trial is a showing by the party seeking such relief that he has done everything within his power to conform to the requirements of the law and that he is without further recourse, save for the intervention of equity. The requirements for obtaining a new trial after a default judgment are that the default judgment can be set aside in any case if the failure of the defendant to answer was not intentional nor the result of conscious indifference, but rather was due to an accident or mistake, and if the motion for a new trial sets up a meritorious defense and is filed at a time such that the granting of it will not occasion a delay to nor otherwise injure the plaintiff. Craddock v. Sunshine Bus Lines, supra 133 S.W.2d at 126.

In meeting the last requirement of the Craddock test the Mitchells failed. At the time a defaulting defendant moves for a new trial, the burden is on him, as movant, to offer to and show that he is ready, willing and able to go to trial immediately and that he is willing to reimburse the plaintiff for all his reasonable costs incurred in obtaining the default judgment. These are elements of the requirement that the granting of the motion for a new trial will not “otherwise injure the plaintiff”.

The Mitchells did not offer to reimburse Webb for any costs incurred in obtaining his default judgment until they filed their brief on appeal. This is clearly too late. Such an offer must have been made at the time the Mitchells sought the new trial in the court below. Furthermore, the Mitch-ells never showed that they were ready, willing or able to go to trial immediately. The transcript shows the trial court specifically so found. Refusal of a new trial was not an abuse of the trial court’s discretion.

On the foregoing this court has had occasion to examine in depth the state of the law, briefly stated hereinabove. See Crabbe v. Hord, 536 S.W.2d 409, 413, 414 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.) cert. den. 430 U.S. 932, 97 S.Ct. 1554, 51 L.Ed.2d 776 (1977).

Furthermore, we hold that allegations in the Mitchell’s motion failed to present a meritorious defense to Webb’s action. Besides technicalities and a complaint that Schults had not been named as a party to the suit, their additional complaint is that “no cause of action was stated” and a “want of privity” existed between Webb and the Mitchells. The last two complaints are part of the matters covered by this opinion and we hold against the Mitchell contention. The first two complaints have no necessary relation to any meritorious defense.

II. DAMAGES

The Mitchells complain that Webb failed to plead facts which set forth a cause of action, or alternatively, that even if Webb did plead facts sufficient to constitute an actionable claim, there is “no evidence” or “insufficient evidence” to support the judgment.

Webb’s claim for damages can be divided into three parts. The first part of his claim was for $4,500.00. This represented the sale price paid by Webb for the pickup. It was accepted with a warranty of good title. The second part of Webb’s claim is for $500.00, the loss of bargain which Webb incurred when he had to refund the $5,000.00 to Moore. The third part of Webb’s claim is for $280.00. This represented the costs which Webb incurred in recovering the pickup after it had been stolen from his car lot.

Webb is entitled to recover the $4,500.00 he paid for the pickup on a theory of breach of warranty of title. Under this theory, the Mitchells are liable to Webb even though they are not in privity of contract. Tex.Bus. & Comm.Code Ann. “Sales”, § 2.312 (1968), “Warranty of Title and Against Infringement; Buyer’s Obligation Against Infringement.” This section provides, in part, that “[T]here is in a contract for sale a warranty by the seller that (1) the title conveyed shall be good, and its transfer rightful; and (2) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.”

The Mitchells’ character in their transactions was that of a “seller” within the definitions of Tex.Bus. & Comm.Code Ann., “Sales”, § 2.103 (1968), “Definitions and Index of Definitions”. Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977). Nobility Homes involved a breach of the implied warranty of merchantability. In that case it was held that privity of contract was not necessary to sustain recovery for economic loss arising out of breach of such a warranty. In so holding, the court considered whether a remote vendor or transferror in the chain of title was a “seller” and concluded that “seller” did include such remote vendors or transferrors. We conclude that in the instant case the Mitch-ells would come within the definition of the word “seller”.

Concluding as we have that the Mitchells are “sellers” within the meaning of § 2.312, any warranty of title which they made when the pickup was sold to Schults would also run to the benefit of Webb even if by defaulting there should not have been the concession of the Mitchells’ participation. Webb, even if not in privity, would be able to recover from the Mitchells for breach of a warranty of title. Webb’s cause of action against the Mitchells for breach of warranty of title was established by pleadings at time of the default judgment. The $4,500.00 in damages was likewise established because that amount constituted liquidated damages.

Webb also alleged $500.00 damages arising from his loss of bargain. We hold that this amount is also recoverable. In Nobility Homes the Supreme Court noted that damages fall into two categories, physical or mental injuries and economic loss. The Court noted that economic loss has been classified as direct and consequential. Consequential economic loss includes all indirect forms of loss, such as loss of profits resulting from inability to make use of a defective product. 557 S.W.2d 77 at 78. See also Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966) (cited by the Texas Supreme Court in footnote I in Nobility Homes); and Longley, Consumer Protection in 2 State Bar of Texas, Advanced Civil Trial Course at MM—28 (1978). The $500.00 was clearly a loss of profit incurred by Webb. It also arose from Webb’s inability to make use of a defective product, specifically, a product with a defective title. Accordingly, the $500.00 lost profit is recoverable as un-liquidated damages. That such damages amounted to $500.00 was proved by Webb’s evidence at the hearing pursuant to which he obtained the default judgment.

However, the $280.00 Webb paid to recover the pickup when it was stolen from him was no part of Webb’s cause of action. It does not appear that this is a form of indirect consequential economic loss, such as the loss of profit discussed above, nor does it appear that this is a form of direct loss as described in Nobility Homes. The $280.00 cannot be recovered by Webb, and it was error by the trial court to treble it as damages by provisions in the D.T.P.A. and include the resultant $840.00 in the judgment.

Webb’s entitlement to treble damages should have been upon the sum of $5,000.00, (the $4,500.00 in liquidated damages and the $500.00 in unliquidated damages), but not upon the additional amount of $280.00 it cost him to recover the pickup truck when, after the transaction with which we are concerned, it was stolen from him. This error may readily be cured by deletion of $840.00 (the $280.00 trebled) from the total award to Webb by the judgment of the trial court.

III. ATTORNEY’S FEES

Prior to instituting suit material to the above discussion Webb had filed an earlier suit against the Mitchells based upon the same transaction. Discovering that a thirty day demand was wanting as a predicate to the form of recovery desired, Webb dismissed that earlier suit. See § 17.50A of the D.T.P.A., providing that without the prescribed notice before filing suit recovery shall be confined to actual damages only. He then gave notice, and thereafter filed suit anew for treble damages by way of recovery.

The Mitchells complain of the award of attorney’s fees of’ $1,100.00 to Webb. The trial court’s award was based on evidence there had been twenty-two hours of work necessarily performed by Webb’s attorneys at a rate of $40.00 per hour as a reasonable charge. The Mitchells contend that a part of the twenty-two hours was spent on the prior lawsuit and that as a result the award of $1,100.00 was erroneous. In part the complaint is that some of twenty-two hours had been spent in filing the prior lawsuit, later dismissed. However, there was testimony susceptible to a construction that all the services which went into the computation of the twenty-two hours were performed in connection with instant case, and not upon the prior case which was dismissed.

A second possible objection to the award of attorney’s fees could be raised on the ground that since this Court reforms the judgment of the trial court concerning actual damages, the basis on which the attorney’s fees were awarded would be improper. That to which we refer is the erroneously awarded $840.00, treble damages based upon actual damages found as Webb’s expense of $280.00 to recover the stolen pickup.

The record reflects that the services of Webb’s attorneys were not required until some time after the theft, recovery and subsequent sale of the pickup to Moore. It is obvious, therefore, that the attorney’s time ánd services which could have had relation to Webb’s claim for costs of recovery of the truck amounted to no more than inserting a paragraph in Webb’s original petition making a claim for recovery of such expense. In other words the time would obviously be of little or no consequence, and at most, certainly no more than the time necessary to recite the claim in Webb’s pleadings. Time, and value of time, spent by Webb’s attorney was the basis for the trial court’s award of attorney’s fees. That time would be substantially the same whether costs of recovery of the pickup had been claimed or not. Under these circumstances there is no occasion to reverse and remand for trial on the issue on attorney’s fees, though the judgment on damages be reduced. Donnelly v. Young, 471 S.W.2d 888, 897 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n. r. e.); Barnhouse Motors Inc. v. Godfrey, 577 S.W.2d 378 (Tex.Civ.App.—El Paso 1979, no writ). See also Maxwell, The 1979 Amendments to the Texas Deceptive Trade Practices — Consumer Protection Act in State Bar of Texas, Texas Consumer Law (1979) at A-11.

Save for complaint relative to the $280.00 as damages, which were trebled for purposes of the judgment, every complaint of the Mitchells is overruled. The judgment of the trial court is reformed so as to delete therefrom the sum of $840.00 ($280.00 trebled). The amount of the judgment in favor of Carol Webb, d/b/a Carol Webb Motor Company and against Delores Duncan Mitchell and Joel L. Mitchell, d/b/a City Auto Parts, jointly and severally, as so reduced, is $15,000.00 ($5,000.00 actual damages trebled) plus $1,100.00 attorney’s fees. The total, $16,100.00, will bear interest at 9% per annum from October 17, 1978 until paid. As so reformed the judgment is affirmed. All costs of the appeal are assessed against the Mitchells.


author: DODSON, Justice.

text:
    Arthur L. BRANDON d/b/a Aircraft Underwriters Agency v. Susan COOPER d/b/a Cooper Aircraft Insurance Agency.
    No. 9039.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 31, 1979.
    Rehearing Denied Dec. 31, 1979.
    William L. Martin, Jr., Hubbard, Thru-man, Turner, Tucker & Glaser, Dallas, for appellant.

      William N. Radford, Franklin H. Perry, Thompson, Coe, Cousins & Irons, Dallas, for appellee.
   DODSON, Justice.

Arthur L. Brandon d/b/a Aircraft Underwriters Agency appeals from a take-nothing judgment rendered on a jury verdict in his action against Susan Cooper d/b/a Cooper Aircraft Agency. Brandon owns and operates an aircraft insurance agency and Susan Cooper is a former employee of the agency. Ms. Cooper terminated employment with Brandon, formed her own agency and began competing with Brandon. After Ms. Cooper began her agency, several former customers of the Brandon Agency moved their accounts to the Cooper Agency. Brandon brought suit against Ms. Cooper alleging, inter alia, unfair competition, breach of an agreement not to compete, and the use of confidential information by Ms.. Cooper. Confidential information was defined in the court’s charge but on appeal Brandon challenges the trial court’s failure to give an additional explanatory instruction on the definition of confidential information. Brandon also maintains that the jury’s negative answer to the confidential information issue is against the great weight and preponderance of the evidence. We affirm the judgment.

Finding no liability or damage issues favorable to Brandon, the jury determined that Susan Cooper was under no obligation as an employee not to compete with Brandon for a period of one year after termination of her employment; that she did not breach her duty to act in good faith toward his customers during the term of her employment with Brandon; and that Brandon did not possess any confidential information prior to 2 June 1976, the date Susan Cooper’s employment was terminated.

Brandon brings only two points of error. In his first point, he asserts that the “trial court erred in its charge to the jury by failing to submit the requested instruction on confidential information actually representing the independent efforts of its claimant, where the defendant showed that the information could be independently derived.” The court defined confidential information as follows:

‘Confidential information’ may be any formula, pattern, device or any compilation of information which gives either party an advantage or opportunity to ob-. tain an advantage over competitors who did not know or use it. The subject matter of confidential information must be secret. Confidential information must be secret to the extent that it is a private matter which is intended to be kept secret.

Brandon does not object to the specific language used in the definition. He only contends that the definition should have included the following sentences: “Confidential information may be known to some others in the industry, but it is not a matter of general knowledge in the industry. The information or knowledge must represent in considerable degree the independent efforts of its claimant.” Brandon cites Expo Chemical Co., Inc. v. Brooks, 572 S.W.2d 8 (Tex.Civ.App.—Houston [1st Dist.] 1978), rev’d, 576 S.W.2d 369 (Tex.1979), and Elcor Chemical Corp. v. Agri-Sul, Inc., 494 S.W.2d 204 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.) in support of his position; however, these cases are not supportive. We deem it unnecessary to undertake an academic discussion of these cases.

Rule 279 of the Texas Rules of Civil Procedure provides in part: “Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested . . . .” We are not convinced that information which is known, but not generally known in the trade or industry may be converted or transformed into secret or confidential information by merely accumulating . the information through one’s own efforts. See Wissman v. Boucher, 150 Tex. 326, 240 S.W.2d 278, 280 (1951); Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933, 936 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). We are not persuaded that the requested instruction is a correct or substantially correct statement of the law. Thus, the court properly refused the requested charge.

In his brief, Brandon undertook to expand on the first point by maintaining that the definition of confidential information should have included the following:

The term ‘confidential relationship’ is meant to include every form of relationship between parties wherein confidence and trust is imposed by and between parties and such parties are justified in placing confidence in each other and rely upon fair dealing in good faith in addition to contractual obligations. Where a confidential relationship exists, the person to whom the confidential information, as defined herein, is disclosed, has a duty not to use it or disclose it without permission. Such a person may not lawfully use such confidential information, even though he might have drawn such information from other sources. To rely on such other sources, the person must show that he or it actually used such other sources and not the confidential disclosure of confidential information.

Rule 277, Texas Rules of Civil Procedure, authorizes a special instruction only when it is necessary to enable the jury to properly pass upon and render a verdict on the issues submitted. Pittsburg Coca Cola Bottling Works v. Ponder, 443 S.W.2d 546, 550 (Tex.1969); Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481, 484 (1943). Assuming a proper request or objection, the primary criterion to be observed is that the trial court must give definitions of legal and other technical terms used in the charge. Union Oil Co. of California v. Richard, 536 S.W.2d 955, 958 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.). “Anything else, however interesting, or, indeed, however relevant to the case in general — which does not aid the jury in answering the issues must be excluded.” Id. at 958 (quoting G. HODGES, SPECIAL ISSUE SUBMISSION IN TEXAS 25 (1959)). In the case before us, the term “confidential relationship" is not used in the issues submitted to the jury; therefore, we conclude that the trial court properly excluded a definition of the term.

At the trial, Brandon claimed that the policy expiration dates of its customers were confidential information. In his second point, Brandon contends that the jury’s refusal to answer that he possessed confidential information prior to 2 June 1976, is against the great weight and preponderance of the evidence. This negative finding merely means that Brandon failed to carry his burden of persuasion on the issue. Perry v. H & S Mechanical Contractors, 578 S.W.2d 432, 427 (Tex.Civ.App.—Amarillo 1979, no writ). Also, the jury’s failure to find a fact vital to Brandon’s action need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). In deciding Brandon’s challenge to the negative jury finding, however, we must consider and weigh all of the evidence in support of and contrary to the finding to determine if the jury’s refusal to answer the issue favorable to Brandon is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Traylor v. Goulding, supra, at 945; Garza v. Alviar, 395 S.W.2d 821, 823 (1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The controversy arose when Susan Cooper terminated her employment with Brandon and three major clients moved their accounts to Cooper’s agency. Brandon originally bought his agency from Susan Cooper’s mother in 1970 after the death of Susan’s father. Susan worked in the agency with her father and continued to work for Brandon in the agency until 2 June 1976.

During the time Susan was employed by Brandon, the agency compiled customer policy expiration dates. We point out that Brandon does not claim that Susan Cooper obtained or used the actual customer list or policy expiration dates compiled by the Brandon agency and that there is no evidence to support such a claim. Susan testified that after leaving the Brandon agency she compiled from memory a list containing some of the names and policy expiration dates of clients of Brandon’s agency.

Both parties concede that the customers involved are all airplane owners.' This class is readily ascertainable through public lists. Although the precise expiration date of the customer’s policy cannot be exactly determined from computerized lists of airplane owners, an “educated guess” can be used to determine the expiration date within sixty days. Aircraft and aviation insurance policies are normally written on an annual basis at or near the time the aircraft is purchased by the owner. The date of purchase is shown on the aircraft owner lists. The primary source of the policy expiration date is the policy owner himself. We note that the policy belongs to the policy owner, not the agent, and that the expiration date is a part of the policy. When owners finance all or. a part of the purchase price of the aircraft, then the policy expiration date is known also to the financier.

The annual dates of the policies of the three major customers were matters of common knowledge to both Brandon and-Susan Cooper. These three customers were longtime family friends and business associates of the Cooper family. The policy expiration dates of these customers were available to Susan Cooper from the customers themselves. Ms. Cooper testified that policy expiration dates of other customers were obtained by her from the individual customers and other sources available to her. The evidence fails to show that the policy expiration dates of Brandon’s customers were secret.

We have read the entire record in this case including the full statement of facts. Having read and considered all of the evidence in this case, we conclude that the jury’s negative answer on the challenged issue is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.

In summary, we overrule Brandon’s two points of error. Accordingly, the judgment is affirmed.

COUNTISS, J., not participating.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Ruth YARBROUGH, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 6804.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 7, 1979.
    Rehearing Denied Dec. 31, 1979.

      Hirsch & Bartley, H. Thomas Hirsch, Kevin R. Bartley, Odessa, for appellant.
    Cotton, Bledsoe, Tighe, Morrow & Dawson, Charles L. Tighe, Midland, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a suit to set aside a compromise settlement agreement in a workers’ compensation case. Plaintiff/Appellant, Ruth Yarbrough, had signed a Compromise Settlement Agreement of her workers’ compensation and received the benefits thereof, and brought this suit to set aside the agreement on the grounds. of fraud. At the conclusion of the Plaintiff’s evidence before a jury, the trial Court directed a verdict for the Defendant and entered a judgment that the Compromise Settlement Agreement is valid and binding on the parties. We reverse that judgment and remand the case for trial.

Appellant’s injuries occurred on September 16,1975, when she was opening a box of tulip bulbs and some substance got in her eyes and on her face. She was treated by five doctors for problems with her eyes and skin. On December 2, 1975, she entered into the Compromise Settlement Agreement here involved for the sum of $1,250.00 in addition to $410.83 already paid, with the medical left open for one year. She had not at the time of settlement returned to work since her accident of September 16th, except for part of one day. Since the date of the settlement, Appellant has incurred more medical expense and she presented evidence that she is suffering from severe depression resulting from the original injury which was the subject of the Compromise Settlement Agreement.

Appellant appeals on the single point of error that the trial Court erred in granting the directed verdict as she had established a prima facie case for setting aside the Compromise Settlement Agreement.

The basis for setting aside a compromise settlement in a workers’ compensation case is for fraudulent representations relied upon by the employee made by authorized agents of the insurer. Bullock v. Texas Employers Ins. Ass’n., 254 S.W.2d 554 (Tex.Civ.App.—Dallas, 1952, writ ref’d). Appellant has presented her evidence and contends she made out a prima facie case. The trial court has directed a verdict against her. In reviewing an instructed verdict, our task is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. In our review, we must consider all of the evidence in its most favorable light in support of the plaintiff’s position and discard all contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex.1976). When reasonable men may differ as to the truth of controlling facts, a jury issue is present. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948); Henderson v. Travelers Insurance Company, supra; 3 McDonald, Texas Civil Practice sec. 11.28.2 (1970).

The first element we will consider is the agency of those making the representations. It is held that, if a doctor makes false statements to a compensation claimant, the statements are not attributable to the insurance company if the claimant chose the doctor himself. Mullens v. Texas Employers’ Insurance Association, 507 S.W.2d 317 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.). Conversely, if the claimant’s employer or the insurance company chose the doctor, the insurance company will be charged with any false statements made by the doctor. Graves v. Hartford Accident & Indemnity Co., 138 Tex. 589, 161 S.W.2d 464 (Tex.Comm’n App.1942, opinion adopted). There is no evidence here that the claimant selected any of the five doctors who saw her. Her employer sent her first to Dr. Hestand. He referred her to Dr. Snyder, a dermatologist, and to Dr. Sheets, an eye specialist; on her second visit to Dr. Sheets, he was absent so she saw his associate, Dr. Tolia; Dr. Hestand also referred her to Dr. Naylor and Dr. Grice, but Dr. Grice did not see her until after the settlement. The insurer submitted the written reports of four of these doctors to the attorney for the claimant and to the hearing examiner at the pre-hearing conference where the settlement agreement was reached. Thus, the insurer used the doctors’ reports in settling. That also makes them agents of the insurer. Jones v. Traders & General. Ins. Co., 188 S.W.2d 739 (Tex.Civ.App.—Eastland 1945, no writ); Associated Employers Lloyds v. Aiken, 201 S.W.2d 856 (Tex.Civ.App.—Dallas 1947, writ ref’d n. r. e.).

The false representations of the doctors were in regard to the claimant’s ability to return to work. There is no indication or contention in any way that the statements were not made in good faith. Absence of bad faith does not negate the claimant’s cause of action. Texas Employers’ Insurance Association v. Maynard, 362 S.W.2d 128 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.). There is no indication the doctors knew that their statements were false. It is not necessary to prove such knowledge. Graves v. Hartford Accident & Indemnity Co., supra.

The report of Dr. Hestand was on the Standard Form for Surgeon’s Report of the Industrial Accident Board. The doctor answered the question of how long further treatment was needed with “1 to 2 weeks.” Under the section on disability, to the question of “Patient was/will be able to resume regular work on,” he answered, “no loss time.” In a second report filed later, the question requesting the date the patient was pronounced able to return to work was again answered by Dr. Hestand as “no loss time.” Dr. Tolia reported that he saw the claimant six times and reported: “She was asked to continue using the eye drops and she was also asked to go back to work.” The insurer stopped payments, and notified the Industrial Accident Board the claimant had been released to return to work and attached Dr. Tolia’s report. Dr. Sheets filled in the form blank requesting the date the employee was able to return to work as “Off work 9-16-75 thru 10-14-75.” Dr. Naylor told the claimant she “probably could go back to work there next week . ” Appellee argues that statements of “no loss time” and “Off work 9-16-75 thru 10-14-75” are not representations that the claimant is able to return to work. If such statements were standing alone, that would be true, but not so when they are the answer to a question of when the patient will be able to return to work. Also, a doctor asking a patient to return to work is tantamount to saying she is then able to return to work. As we view the matter, if any one of the representations was false, then that element of the claimant’s case is established for each of the doctors was an agent of the insurer.

As to the element of reliance on the statements, Appellant’s attorney testified he relied on the reports of the four doctors and his observation of the Appellant in his agreeing to the settlement. The claimant testified that she signed the settlement papers because her attorney asked her to and because “I thought I was going to be able to go back to work.” She also testified: “[T]hey told me I could go back to work.” And when asked “what made you think you could go back to work?”, she answered: “Well, for one thing, that Dr. Naylor, that was the one, he told me I probably could go back to work there next week.” The question of reliance is not foreclosed against the claimant as a matter of law under that evidence.

Some two weeks after the settlement agreement was reached, Dr. Hestand put the claimant in the hospital where she remained for some six weeks, and Dr. He-stand asked Dr. Grice to see her. The testimony and report of Dr. Grice that the claimant is suffering severe depression as a result of her injury and that it will be a matter of years before complete recovery can be expected is prima facie evidence that she has a meritorious claim for more compensation than she settled for. Also, it refutes the medical opinions that she “could probably go back to work there next week,” “no loss time,” and the other statements, the import of which is that she was able to go back to work.

We are of the opinion that, as to each of the necessary elements to set aside the settlement agreement, there is some evidence raising a fact question on which reasonable minds could differ. It follows that the directed verdict of the trial Court was improper. The judgment of the trial Court is reversed and the cause remanded for trial.


author: AKIN, Justice.

text:
    County Judge Garry WEBER et al., Relators, v. The Honorable Dee Brown WALKER et al., Respondents.
    No. 20265
    Court of Civil Appeals of Texas, Dallas.
    Nov. 21, 1979.
    See also 591 S.W.2d 568.

      Earl Luna, Luna & Murto Dallas, for appellants.
    Michael P. Pezzulli, R. Jack Ayers, Jr., Dallas, for appellees.
    Before AKIN, STOREY and HUM-PHREYS, JJ.
   AKIN, Justice.

Relators, the county judge of Dallas County, the four county commissioners, the county treasurer, and the county auditor, are prosecuting an appeal from a judgment of the 162nd District Court of Dallas County. They have filed in this court an application for a writ of mandamus, asking this court to issue our writ directing the Honorable Dee Brown Walker, Judge of the 162nd District Court, either to set a supersedeas bond, if one is required, and if a bond is not required to supersede his order, to vacate his order denying relator’s right to supersede his order, which would occur by operation of law when notice of appeal was filed. In the event that we grant relators’ writ, respondent municipalities have requested us to issue our writ of injunction to preserve our jurisdiction. We have held that because the relief sought by relators was not against them individually but was rather a suit against Dallas County, no supersedeas bond was required of them under Tex.Rev. Civ.Stat.Ann. art. 2276 (Vernon 1971). Accordingly, we have heretofore issued our writ directing Judge Walker to set aside his order denying relator’s right to supersede the judgment. We denied, however, respondents’ application for a writ of injunction to maintain Judge Walker’s injunction in effect because we may only issue injunctions to protect our jurisdiction of the appeal to prevent the appeal from becoming moot. We also granted relators’ motion to advance and have set the appeal on its merits for November 15, 1979. We now state our reasons for these holdings.

JURISDICTION

Although respondents have not raised the question of our jurisdiction to entertain this application, we deem it important to address this question. Our jurisdiction in such matters is set forth in Tex. Rev.Civ.Stat.Ann. art. 1823 (Vernon 1964) which provides that we may issue writs of mandamus and all other writs necessary to enforce our jurisdiction. Our supreme court in Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795, 796 (1930), in an analogous case, held that a court of civil appeals had jurisdiction to grant writs to prevent a trial court from interfering with the statutory jurisdiction of the court of civil appeals. In that case, as here, the trial judge denied the appellant the right to file a supersedeas bond. The supreme court stated that this action of the judge was without warrant of law and was an interference with the jurisdiction of the court of civil appeals. Consequently, the court of civil appeals had jurisdiction “to abate and can correct [such wrongs] by its original writ of mandamus and such, ancillary writs as may be necessary or appropriate thereto.” Id. at 796. We conclude, therefore, that we have jurisdiction to issue the appropriate writ.

We do not, however, have jurisdiction to replace Judge Walker’s injunction with our own because our jurisdiction is limited to issuing injunctions in situations wheré the failure to do so would render the appeal moot. General Telephone Co. of the Southwest v. Carver, 474 S.W.2d 582, 583 (Tex.Civ.App.—Dallas 1971, no writ). Respondents contend that our failure to issue an injunction will destroy the subject matter of the suit because respondents will be without police protection from the sheriff. We cannot agree that our injunction is necessary to prevent this appeal from becoming moot. The fact that respondent municipalities may be without police protection during pendancy of this appeal does not destroy the subject matter of the appeal, nor does it render the appeal moot. We conclude, therefore, that we lack jurisdiction to grant respondents an injunction.

MERITS

The controversy out of which this original proceeding arose commenced when the Commissioners Court of Dallas County terminated funding for twenty sheriff’s deputies which the sheriff asserted weré necessary to patrol incorporated municipalities within Dallas County. The towns of Sunnyvale and Sachse filed suit asking Judge Walker to order the sheriff to continue to patrol within their municipal limits and to order Commissioners Court to provide funds to the sheriff for the additional personnel needed by the sheriff to comply with their request. The city of Garland intervened requesting the same relief. After a hearing, Judge Walker granted the relief on October 17, 1979, and the relators have appealed. On October 18, 1979, the relators moved that Judge Walker stay his order pending appeal on the ground that they were exempt from posting a supersedeas bond under article 2276. Alternatively, the relators asked that Judge Walker fix the amount of a supersedeas bond so that rela-tors could file one. After a hearing, Judge Walker entered his order denying the rela-tors the right to supersede his judgment, with or without, a supersedeas bond. In his order he also expressly refused to fix the amount of a supersedeas b.ond, but did find that relators were “essentially the same as the County of Dallas, and if this court were to allow supersedeas, these defendants would not have to post a supersedeas bond.” On October 29, 1979, relators applied to this court for relief which we granted.

Our first question is whether re-lators had a right to supersede Judge Walker’s order pending appeal. Secondly, if re-lators have the right to supersede, we must determine whether a supersedeas bond is required of them. This latter question must be resolved because if relators are required to post a supersedeas bond, then the appropriate relief in this court is to issue a writ of mandamus directing Judge Walker to fix the amount of such bond. On the other hand, if no bond is required under article 2276, then the judgment is superseded as a matter of law upon the filing of notice of appeal. City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939). In the latter situation, a writ of mandamus directing Judge Walker to vacate his order denying relators the right to supersede his order would be the proper writ.

With respect to whether rela-tors have a right to supersede Judge Walker’s order, we hold that relators have this right, just as any other party. Tex.R.Civ.P. 364(a) provides that an appellant desiring to suspend the execution of a judgment may do so by giving a bond approved by the clerk payable to the appellee. Subdivision (e) of rule 364 provides that “where the judgment is for other than money or property or foreclosure, the bond shall be in such amount to be fixed by the court below as will secure the piaintiff in judgment in any loss or damage.” We also note that (g) of that rule provides that “where [a] judgment is in favor of the State, a municipality, . . and is such that the judgment holder has no pecuniary interest in it and no monetary damages can be shown, the bond shall be allowed and its amount fixed within thé discretion of the trial court.” As we read the language of rule 364, the right to supersede a judgment is a matter of right and not a matter within the discretion of the trial judge. Houtchens v. Mercer, 27 S.W.2d at 796; General Telephone Co. of Southwest v. Carver, 474 S.W.2d at 583. Consequently, the trial judge has no jurisdiction to deny super-sedeas and his order denying relators the right to supersede is void.

Since we have concluded that relators had a right to supersede Judge Walker’s .order, we must determine whether a bond is required of them in order to determine the appropriate relief. This question turns on whether the relators are exempted from filing a supersedeas bond under article 2276, which applies to supersedeas bonds as well as to appeal bonds. Texas Liquor Control Board v. Jones, 378 S.W.2d 898, 905 (Tex.Civ.App.—Austin 1964, no writ). Article 2276 provides:

Neither the State of Texas, nor any county in the State of Texas, nor the Railroad Commission of Texas, nor the head of any department of the State of Texas, prosecuting or defending in any action in their official capacity, shall be required to give bond on any appeal or writ of error taken by it, or either of them, in any civil case. [Emphasis added.]

The respondent municipalities argue that because they did not sue the County of Dallas, but sued relators individually to require them to act in their official capacities, a bond is required of them to supersede the order. In support of this contention, they cite Strength v. Black, 241 S.W. 281, 282 (Tex.Civ.App.—Texarkana 1920, no writ); Valerio v. Laughlin, 307 S.W.2d 352, 353 (Tex.Civ.App.—San Antonio 1957, no writ) (per curiam); Ploch v. Dickison, 223 S.W.2d 568 (Tex.Civ.App.—El Paso 1949, no writ) (per curiam). Although these opinions support the position of respondents, we have concluded that they were wrongly decided and are not authoritative. The San Antonio Court of Civil Appeals in Valerio v. Laughlin relied upon Ploch v. Dickison, which in turn relied upon and expressly approved the rationale of Strength v. Black, 241 S.W. 281, 282 (Tex.Civ.App.—Texarkana 1920) rev’d on other grounds, Black v. Strength, 112 Tex. 188, 246 S.W. 79 (1922).

In Strength v. Black, the Texarkana Court of Civil Appeals held, in a situation analogous to the one in this case, that the predecessor to article 2276 did not apply to the county judge and the commissioners when they were sued in their official capacity. That court reasoned that since the language of article 2105 (now article 2276) did not specifically mention or refer to county officials acting in their official capacities, but did do so with respect to state officials, the legislature did not intend to include county officials within the ambit of the statute. We expressly disagree with this rationale and the holdings in these cases. Instead, we agree with the San Antonio Court of Civil Appeals’ decision in Richardson v. Cameron County, 275 S.W.2d 709, 710 (Tex.Civ.App.—San Antonio 1955, no writ) which focused on the nature of the complaint asserted against the county judge and the commissioners and concluded that the claim was essentially one against the county. Consequently, that court held that no bond was required under article 2276 and refused to dismiss the appeal.

We agree with this decision of the San Antonio Court of Civil Appeals and hold that the intent of the legislature in enacting article 2276 was to exempt any county from having to give bond in an appeal. See Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S.W. 813, 816 (1923) (holding that statute not limited to state department heads enumerated by article 4, § 1 of the Texas Constitution). In order to determine whether the county is the party attempting to appeal, rather than the commissioners and the county judge as private citizens, we must look to the nature of the relief sought from the petition as a whole. Bexar County v. Linden, 205 S.W. 478, 484 (Tex.Civ.App.—San Antonio 1918), rev’d on other grounds, 110 Tex. 339, 220 S.W. 761 (1920). Clearly this was a suit against .Dallas County to require appropriation and expenditure of county funds to employ additional deputies. Accordingly, we hold that this is a suit against the county and, therefore, no bond is required under article 2276.

To hold to the contrary would place form over substance and permit a plaintiff to determine whether a bond would be required by not naming the county as a defendant but naming instead the various county officials in their official capacities. Additionally, it cannot be questioned that the premium for any bond would be paid with funds from Dallas County. Similarly, in the event that respondents prevail on appeal, any damages occasioned by superseding the trial court’s order would be paid from county funds. The purpose of posting a supersedeas bond is to assure payment of damages occasioned by the appeal. Automobile Ins. Co. v. Teague, 32 S.W.2d 824 (Tex.Comm’n App.1930, judgmt. adopted). Similarly, the posting of an appeal bond is to assure the county of costs incurred by them in the trial court and on appeal. No such assurance is needed when the county is actually the appealing party in interest and when county funds are liable for payments of costs and for damages occasioned by superseding the trial court’s judgment.

Accordingly, a writ of mandamus was issued to the Honorable Dee Brown Walker directing him to vacate his order of October 22, 1979, denying relators the right to supersede his judgment.

      . The language in article 2276 is identical to that of its predecessor, article 2105.


text:
    County Judge Garry WEBER et al., Appellants, v. CITY OF SACHSE et al., Appellees.
    No. 20265.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 21, 1979.
    Rehearing Denied Dec. 12, 1979.

      See also 591 S.W.2d 559.

      Earl Luna, Luna & Murto, Dallas, for appellants.
    Michael F. Pezzulli, R. Jack Ayers, Jr., Dallas, for appellees.
    Wm. Andress, Jr., Dallas, for appellee Town of Sunnyvale.
    Before AKIN, CARVER and HUM-PHREYS, JJ.
   AKIN, Justice.

The City of Sachse and the town of Sunnyvale, both incorporated municipalities in Dallas County, as well as the mayor of each town as an individual representative of all persons similiarily situated, brought this action against the Sheriff and the County Judge and the County Commissioners of Dallas County, seeking an injunction to require the county to provide sheriff’s deputies to patrol within the boundaries of these municipalities. Plaintiffs prayed that defendants be enjoined from reducing the number of sheriff’s deputies to less than five in each municipality and that the county commissioners be enjoined from refusing to fund these patrols, alleging violations of the sheriff’s duties under Tex.Code Crim. Pro.Ann. arts. 2.13, 2.16 and 2.17 (Vernon 1977) and plaintiffs’ substantive and procedural due process rights and equal protection rights under the United States and Texas Constitutions. The 162nd Judicial District Court óf Dallas County, Honorable Dee Brown Walker presiding, granted a permanent injunction prohibiting the sheriff’s department from reducing the number of sheriff’s deputies patrolling within the incorporated boundaries of each of the plaintiff municipalities below the number of patrols that existed prior to October 1, 1979, and requiring the county commissioners to fund these patrols. The Commissioners’ Court and the sheriff appeal. We hold that this order is erroneous. Defendants were also enjoined from providing any less law enforcement to plaintiffs than is provided to the unincorporated areas of Dallas County. This portion of the order is also erroneous. Accordingly, we reverse the judgment and vacate the injunction.

Appellant Commissioners’ Court argues that the trial court had no jurisdiction to interfere in the reasonable discretionary legislative acts of the Commissioners’ Court. In this respect, appellants contend that the trial court erred in concluding that the Commissioners’ Court acted unreasonably in reducing the funding of twenty deputies from the sheriff’s budget and that this action by the commissioners was an abuse of discretion. They assert that the effect of the trial court’s mandatory injunction, with respect to this budgetary matter, was to surplant the legislative judgment of the commissioners with the trial judge’s own concept of what those budgetary priorities should be. We agree with the commissioners.

Although the district court may enjoin an illegal or unconstitutional act, Sterrett v. Gibson, 168 S.W. 16,18 (Tex.Civ.App.—San Antonio 1914, no writ), it has no authority to direct a public official how to perform a discretionary act. Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570, 575 (Tex.1971). The district court’s order prohibiting the reduction of the number of patrols within plaintiffs’ boundaries is tantamount to compelling the county commissioners to fund at least five sheriff’s deputies to patrol each of the plaintiff municipalities, since that was the level of law enforcement existing on October 1, 1979. This the district court cannot do, absent a mandatory statutory duty imposed on the Commissioners’ Court, because the district court, rather than the Commissioners’ Court would be determining how county funds should be expended. Since this is a matter within the Commissioners’ Court’s discretion, the district court erred in granting the injunction. Stovall v. Shivers, 129 Tex. 256, 103 S.W.2d 363, 367 (1937); Janes v. Morton, 385 S.W.2d 702, 706 (Tex.Civ.App.—Amarillo 1964, writ ref’d n. r. e.). The allocation of county funds is a discretionary act of the public officials who were elected to make such decisions. The district court’s authority extends only to enjoin illegal expenditures and to situations where the commissioners abuse their discretion. It has no authority to substitute its judgment for that of these elected officials as to the particular expenditures that should be made. Id. .

Plaintiffs argue that the district court had authority to grant injunctive relief under article 5, § 8 of the Texas Constitution which gives the district court supervisory authority over the judgments of the Commissioners’ Court. They concede that the funding for sheriff’s deputies by the Commissioners’ Court is a discretionary act of that court, but assert that the commissioners abused their discretion because Tex. Rev.Civ.Stat.Ann. art. 6869d (Vernon 1960) shows a legislative intent to require the Commissioners’ Court to fund a sufficient number of deputies to permit the sheriff to carry out his duties to conserve the peace under Tex.Code Crim.Pro.Ann. art. 2.17 (Vernon 1977). Article 6869d states:

Section 1. In every county of this state having a population of two hundred ten thousand (210,000) or more, according to the last preceding United States census, there is hereby created a county police force, to be composed of such number of patrolmen not less than six, as may be fixed by the Commissioner’s Court. All of said patrolmen shall be appointed by the sheriff, subject to approval by the Commissioners’ Court, and one of their number shall be so appointed chief of the county police.
See. 2. Each of said patrolmen shall be deputized by the sheriff and shall have the power and authority of a Deputy Sheriff, and all laws of this state applicable to deputy sheriffs shall apply to such patrolmen, except where they may be in conflict with this Act. They shall hold their position until removed by the sheriff, with the approval of the Commissioner’s Court.
Sec. 3. The salary of the patrolmen and of the chief of county police shall be fixed by the Commissioner’s Court and paid out of the General Fund of the county. It shall be the duty of such patrolmen to carefully patrol, either in a-motor car or in a motorcycle all the highways of the county located outside of the corporate limits of the county seat thereof, and they shall each be required to furnish a motorcycle or motorcar, and their salary shall include their compensation for furnishing such car and the cost of maintaining and operating the same. Such patrolmen shall perform their duties under rules and regulations prescribed and promulgated by the Commissioners’ Court. Such patrolmen shall devote their entire time when on duty to patroling that part of the county outside of the corporate limits of the county seat and to matters pertaining to that service. [Emphasis added.]

We cannot agree that this statute shows the legislative intent asserted by plaintiffs. As we read this statute, it imposes a duty on the commissioners to fund a county police force of not less than six and that these patrolmen shall devote their entire time to patrolling that part of the county outside of the corporate limits of the county seat. The number of patrolmen in excess of the six required by this statute is a matter within the discretion of Commissioners’ Court. There is no evidence in this record that the sheriff does not maintain a force of at least six deputies who devote their entire time to patrolling that part of the county outside the limits of the City of Dallas. Consequently, the district court erred in concluding that the Commissioners’ Court has failed to comply with this statute.

Although the sheriff has the duty to conserve the peace within the county, Tex.Code Crim.Pro.Ann. art. 2.17 (Vernon 1977), his decisions as to the deployment of law enforcement officers within the county are left to his discretion and judgment since this matter is not specifically prescribed by law. A court may properly intervene only where a public official fails to perform a mandatory duty or oversteps the bounds of his discretion. The law imposes no mandatory duty on the sheriff to supply a certain level of law enforcement to the plaintiff municipalities. By mandating the level of law enforcement that shall be supplied, the district judge substituted his discretion and judgment for that of the sheriff, which he had no authority to do. Mauzy v. Legislative Redistricting Board, 471 S.W.2d at 575.

Even if the trial court may have had jurisdiction over the parties and the subject matter of this suit, that portion of the judgment requiring the provision and funding of a particular level of law enforcement to plaintiffs is beyond the trial court’s power to grant. Smith v. Paschal, 1 S.W.2d 1086, 1087 (Tex.Comm’n App.1928, judgmt. adopted); McBride v. McBride, 256 S.W.2d 250, 253 (Tex.Civ.App.—Austin 1953, no writ). See G. Hodges, Collateral Attacks on Judgment, 41 Texas L.Rev. 499, 514 (1963).

We turn now to that part of the district court’s order requiring the defendants to provide no less law enforcement to the plaintiffs than is provided to the unincorporated areas of Dallas County. Although we question the enforceability of this portion of the order, since it lacks clarity as to the standard of conduct required for compliance, it is within the scope of the trial court’s authority. It does not invade the county government’s discretion as to the level of law enforcement services that will be provided within the county but merely requires that such services be provided equally between plaintiffs’ and the unincorporated areas of Dallas County. Having determined that this portion of the order was within the trial court’s authority, we must determine whether the law requires that county law enforcement services provided to the plaintiffs must be the same as that provided to unincorporated areas of Dallas County, as plaintiffs contend.

Plaintiffs, relying on Weatherly Independent School District v. Hughes, 41 S.W.2d 445 (Tex.Civ.App.—Amarillo 1931, no writ), argue that because their citizens pay the same county taxes as residents of the unincorporated areas of Dallas County, they are entitled to the same county police protection as residents of that area. Hughes is a taxation case and the question before us concerns spending.. Thus, it is inapplicable here. Equal protection does not entitle every citizen to receive equal benefits each time government money is spent. Such a standard would make almost all government spending programs unconstitutional. Absent some invidious discrimination based on a suspect classification such as race or sex, the equal protection clauses of both the Texas and United States Constitutions require only that the county government have a rational basis for providing different levels of law enforcement services to these areas of Dallas County. Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31, 36 (1931); Carter v. Hamlin Hospital District, 538 S.W.2d 671, 675 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.), cert. denied, 430 U.S. 984, 97 S.Ct. 1680, 52 L.Ed.2d 378 (1977). Here the county commissioners could reasonably determine that the county law enforcement budget should be cut. They may also determine that since plaintiffs are duly incorporated municipalities and can raise taxes to provide their own law enforcement, county law enforcement within their boundaries should be curtailed in order to implement the budget cut. The evidence shows that although not maintaining patrols within plaintiffs’ boundaries, sheriff’s deputies will still answer calls by plaintiffs’ citizens, thus providing the same service to these municipalities that is provided to other incorporated areas in Dallas County. These facts supply a rational basis for an unequal allocation of county law enforcement services between plaintiffs and the unincorporated areas of Dallas County, thus refuting the plaintiffs’ equal protection argument.

Plaintiffs also argue that Tex.Code Crim.Pro.Ann. art. 2.17 (Vernon 1977) requires the commissioners and sheriff to enforce the law equally throughout the county. They admit that the sheriff has some discretion in enforcing the law yet contend that a failure to patrol within their incorporated areas amounts to an abuse of discretion. We cannot agree. The commissioners and sheriff have a rational basis, as noted supra, for an unequal deployment of county sheriff’s patrols between the areas within the limits of the plaintiff municipalities and the unincorporated areas of Dallas County. They have not acted arbitrarily and capriciously and, thus, have not abused their discretion in fulfilling the law enforcement duty imposed on them by article 2.17. Rodriguez v. Vera, 249 S.W.2d 689, 693 (Tex.Civ.App.—San Antonio 1952, no writ); Hidalgo County v. Johnstone, 137 S.W.2d 825, 827 (Tex.Civ.App.—Eastland 1940, writ dism’d judgmt. cor.).

Plaintiffs also argue that due process requires patrols within their boundaries since “people might get killed” if proper law enforcement is not provided. Plaintiffs misconstrue the concept of due process. Due process is a restraint on the government, preventing it from, depriving persons of liberty or property interests without notice and an adversary hearing. That constitutional protection does not entitle plaintiffs to any specified level of county law enforcement protection. If plaintiffs need more law enforcement protection, they may employ their own law enforcement officers, as do the other incorporated municipalities of Dallas County. Tex.Rev.Civ.Stat.Ann. art. 998 (Vernon Supp. 1978-1979).

Accordingly the judgment is reversed and the injunction vacated.

      . The district court has supervisory authority over the county commissioners’ court and may, in a proper case, compel an affirmative act by that government body. Tex.Rev.Civ.Stat.Ann. art. 1908 (Vernon 1964). Grant v. Ammerman, 437 S.W.2d 547, 550 (Tex.1969). We question whether the district court may properly enter a compulsory order against the sheriff acting in his capacity as a government official. Article 1735 may place that power exclusively in the Supreme Court. If not reserved to the Supreme Court, the district court would have jurisdiction under Article 1913.


author: STEPHEN F. PRESLAR, Chief Judge.

text:
    Stella MIRANDA, Individually and as next friend of Rafaela Renee Miranda and as Representative of the Estate of Erasmo Miranda, Appellant, v. The STATE of Texas, Appellee.
    No. 6875.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 21, 1979.
    Rehearing Denied Dec. 19, 1979.

      Plunkett, Gibson & Allen, Jerry A. Gibson, Mark R. Stein, San Antonio, for appellant.
    Mark White, Atty. Gen. of Tex., John W. Fainter, Jr., First Asst. Atty. Gen., Ted L. Hartley, Executive Asst. Atty. Gen., Watson C. Arnold, Harold G. Kennedy, Asst. Attys. Gen., Austin, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Judge.

This case presents the question of whether flood waters on a State highway are a special defect as that term is used in Sections 14(12) and 18(b) of Article 6252-19, Tex.Rev.Civ.Stat.Ann., commonly known as the Texas Tort Claims Act. The trial Court sustained the State’s plea to the jurisdiction and dismissed the suit. We are of the opinion that the flood waters do constitute a special defect, and that the judgment must be reversed.

This suit arises out of the death of Eras-mo Miranda, which occurred when he drove his car into some two-feet of flood waters, at a low water crossing on the Frio River, on Ranch Road 187 in predawn darkness. In addition to its general denial, the State filed a pleading entitled “Plea to the Jurisdiction and Plea in Abatement” alleging:

Plaintiffs have failed to allege a cause of action against State under the provisions of the Texas Tort Claims Act (Article 6252-19, V.C.S.), and as to State this suit should be abated and no further action, discovery or otherwise had herein unless and until Plaintiffs allege such cause of action, and if the same be not alleged within a reasonable time the same should be dismissed for want of jurisdiction.

The trial Court deferred ruling on this plea until the conclusion of the Plaintiff’s evidence, at which time it granted the plea in abatement and entered its order dismissing the case.

Section 3 of Article 6252-19 makes the State liable for death or personal injury caused from “some condition or some use of tangible property, real or personal, . .” The Act contains exceptions to this general waiver of liability, one of which is found in Section 18(b) which provides:

As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. Provided, however, that the limitation of duty contained in this subsection shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets, .

Under Section 18(b), then, premise liability cases are in effect divided into (1) special defect and (2) regular defect cases; that is, if the case involves a regular premise defect, the defendant is held to a lesser duty of care — the duty of a licensor as opposed to an ordinary negligence duty. An important difference, then, between regular and special defect cases is that in a regular defect case, when the licensor has actual knowledge of a dangerous condition and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.); State v. Tennison, 509 S.W.2d 560 (Tex.1974). In the case of a “special” defect, the rule is different, and the State must warn of a special defect even if it only has constructive knowledge of it. County of Harris v. Eaton, 573 S.W.2d 177 (Tex.1978). In the case before us, we hold that the Plaintiff’s case is based on a “special” defect which imposed a burden on the State to warn of the defect if it had constructive knowledge of it.

In Eaton, a car flipped over when it struck a large hole in the pavement. Justice Pope concluded that the statute provisions of the Tort Claims Act provide an understanding of the kinds of dangerous conditions against which the legislature intended to protect the public; he set out Section 18(b) with its provision — that , the limitations of duty contained in it shall not apply to the duty to warn of special defects such as “excavations or obstructions on highways, roads or streets . . .”; and he set forth Section 14(12) with its provision — that it shall not apply the duty to warn of special defects “such as excavations or roadway obstructions”, and the opinion stated:

The statutes provide an understanding of the kinds of dangerous conditions against which the legislature intended to protect the public. They are expressed as such things ‘as excavations or roadway obstructions.’ Under the ejusdem generis rule, we are to construe ‘special defect’ to include those defects of the same kind of class as the ones expressly mentioned. [Citing authorities.] The two examples that are included in the statute are not exclusive and do not exhaust the class.

In the case before us, there is no need to resort to the rule of ejusdem generis for clearly the two-feet of water over the highway was an obstruction. Obstruction is defined as “[a] thing that obstructs or impedes; an obstacle, impediment, or hindrance, as in a street, river or design. Webster’s New International Dictionary of the English Language (2d Ed.) (1961), at 888, 1682.” Eaton, supra, dissent. The dissent in Eaton was concerned with the size of the pot hole defect — whether in fact it amounted to an excavation or obstruction. As noted, we do not have that problem here as we are concerned with the pleading and not proof, and the Plaintiff pled, in describing the obstruction, . . the vehicle he was driving was swept from the roadway by the swift moving waters of the Frio River which had flooded and obstructed the roadway on which' Erasmo Miranda was travelling.” And further, “Erasmo Miranda’s lifeless body was found approximately 16 miles downstream where the torrential floodwaters deposited him”; and they specifically pled that the flood waters were an “obstruction” and “special defect” within the meaning of the Act.

The Appellant’s pleadings alleged, among other things, that agents of the State failed to exercise ordinary care:

1.In failing to place barricades sufficiently in advance of the crossing in question in order to give sufficient notice to the travelling public that a danger existed.
7. In failing to post warning signs sufficiently in advance of the crossing in question in order to give sufficient notice to the travelling public that a danger existed.

These pleadings are sufficient to invoke liability for failure to warn. They also pled knowledge of the special defect on the part of the State. We sustain Appellant’s Point of Error No. 1, and, since it is determinative of the appeal, we do not discuss the other points of Appellant. We overrule the alternative cross-point of Appellee.

The judgment of the trial Court is reversed, and the cause is remanded for trial on the merits.


author: STOREY, Justice.

text:
    Fred E. GOODRIDGE, Appellant, v. Dorothy Jean GOODRIDGE, Appellee.
    No. 20063.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 26, 1979.
    Rehearing Denied Jan. 3, 1980.

      Thomas S. Nelson, McCracken, Shields & Taylor, Carrollton, for appellant.
    Mary D. McKnight, McKnight & Hund-ley, Dallas, for appellee.
    Before AKIN, STOREY and HUM-PHREYS, JJ.
   STOREY, Justice.

This is an appeal from the property division in a divorce case. The trial court gave the appellee, Dorothy Jean Goodridge, three parcels of improved realty and a one-half undivided interest in a second lien note, all of which were claimed by appellant to be his separate property. Appellant contends that even though the properties were acquired after marriage, the purchase money for these properties is traceable to his separate estate, and it was error, therefore, to divest him of title. We hold that appellant has failed in his attempt to trace to his separate estate the funds used to purchase these properties in order to rebut the presumption raised by Tex.Fam. Code Ann. § 5.02 (Vernon 1975) and, therefore, affirm.

Appellee has filed a motion to dismiss the appeal urging that appellant violated the trial court’s decree by selling a parcel of the realty awarded to her, by returning her interest in the second lien note, and by collecting rents from the properties awarded to her. Appellee cites several authorities for the proposition that when an appellant is in contempt of the trial court’s judgment, the appeal should be dismissed. Geesbreght v. Geesbreght, 570 S.W.2d 427 (Tex.Civ.App.—Fort Worth 1978, writ dism’d); Strange v. Strange, 464 S.W.2d 216 (Tex.Civ.App.—Fort Worth), certified questions answered, 464 S.W.2d 364 (Tex.1971); Hays v. Brandon, 245 S.W.2d 381 (Tex.Civ.App.—Fort. Worth 1951, no writ). In these cases, appellants had refused to obey orders concerning child custody and each appellate court ordered dismissal only after granting appellants a definite time in which to comply. No such situation exists here. While in the cited cases no other remedy existed to compel timely compliance with the court’s order, appellee here concedes that she has adequate remedies to protect or to recover the value of her property interest. Consequently, we conclude that these authorities are not controlling here. We also hold that the failure to comply with the trial court’s order in this situation does not justify dismissal of this appeal. Accordingly, appellee’s motion to dismiss is overruled.

ON THE MERITS

Tex.Fam. Code Ann. § 5.01 (Vernon 1975) provides that property owned or claimed by a spouse before marriage, as well as that acquired during marriage by gift, devise or descent, is separate property. Community property consists of property, other than separate property, acquired during marriage. Section 5.02 provides that property possessed by either spouse during or in dissolution of marriage is presumed to be community property. The burden is thus placed upon a party claiming property acquired after marriage as his or her separate estate to trace and clearly identify property claimed as separate. Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965); Trevino v. Trevino, 555 S.W.2d 792, 796 (Tex.Civ.App.—Corpus Christi 1977, no writ). At issue in this case are three parcels of residential rent property and an undivided interest in a second lien note, all of which were acquired during marriage.

Appellant contends he has discharged his burden of tracing these properties to his separate funds prior to marriage. This is true, he urges, because he has consistently maintained an investment account to which he has segregated all of his separate rental properties, and even though he has commingled community rents in the account, his records show a net loss in his rental property operation from the date of marriage to the date of purchase of the subject properties; therefore, any investments made out of the account necessarily came from separate funds.

The separate account maintained by appellant was titled “Shamrock Investment Company.” It was a proprietorship established prior to marriage and held title to several parcels of rental property, one being an apartment house and the others single family residences. It also held a substantial amount of cash which, at the time of marriage, had been derived from accumulation of rents and proceeds from sales of separate realty and stocks.

Appellant also maintained an account titled “Goodridge Enterprises.” Into this account he placed all community income, except rents, and from this account he paid all community expenses. It is clear from appellant’s records that, from time to time, money flowed from Shamrock Investments to Goodridge Enterprises for the purpose of paying expenses of the community; but no money flowed from Goodridge Enterprises into Shamrock Investments.

The accounts of Shamrock Investments show that between August 1973 and November 1973, about two years after marriage and about five years before divorce, Shamrock Investments purchased six rent houses. Shamrock paid varying amounts of cash as down payments, totalling about $15,000, and the balance of the purchase money was represented by the assumption of existing indebtedness and the execution of a note. Three of these houses were awarded to appellee in the divorce decree. The second lien note, which appellant also claims as separate property, was acquired by him in the sale of another of the six houses.

The accounts of Shamrock Investments also show that for the year 1971, the year of marriage, the cost of operating and maintaining appellant’s separate rent properties, exclusive of depreciation and principal payments, exceeded total rental income by $7,750. In 1972, rents exceeded costs by $4,545. In 1973, the year the six properties were, acquired, costs exceeded rents by $105. During the three year period, about $43,000 in rents was deposited in the Shamrock Investment account, and no attempt was made to segregate these rents from other cash in the account. Because costs for the period exceeded rents by $3,100, appellant concludes, and his proof of tracing relies solely upon the proposition that, all community rents having been previously expended from the Shamrock Investment account, the six properties were of necessity acquired with the separate funds then held in the account. We cannot agree.

Even if it be assumed that expenditures from the account were made exclusively for operation and maintenance, the character of the cash account had been changed before the expenditures were made because of the commingling of community and separate funds. See Hodges v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 907 (1955); Carnes v. Meador, 533 S.W.2d 365, 369 (Tex.Civ.App.—Dallas 1975, writ ref’d n.r.e.); Stanley v. Stanley, 294 S.W.2d 132, 136-7 (Tex.Civ.App.—Amarillo 1956, writ ref’d n.r.e.), cert. denied, 354 U.S. 910, 77 S.Ct. 1296, 1 L.Ed.2d 1428 (1957).

Furthermore, an examination of the record reveals that most of the purchase price of the properties was furnished by community credit. In each instance, there was an assumption of existing indebtedness upon the property, and in one instance, there was,- in addition, the execution and delivery of a promissory note. Appellant contends there is no evidence of the use of community credit, apparently relying upon the fact that title was taken in the name of Shamrock Investment Company. We have previously noted that Shamrock Investment Company was a proprietorship, and an examination of the conveyances into it reveals that community credit was used, because there was no agreement by the lender to look solely to separate funds or property of appellant for payment. Property acquired on the credit of the community is community property. Broussard v. Tiari, 156 Tex. 371, 295 S.W.2d 405, 406 (1956); Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881, 884 (1937).

We conclude that appellant’s evidence has failed to rebut the presumption that the properties acquired after marriage were community.

Affirmed.


text:
    Carol Cartwright CHAPMAN, Appellant, v. I.B. CHAPMAN II, Individually and as Trustee of the Carol Cartwright Chapman Irrevocable Living Trust, et al., Appellees.
    No. 18240.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 29, 1979.

      Penner, Jones, Keith & Wagner, and James P. Wagner, Fort Worth, for appellant.
    Law, Snakard, Brown & Gambill, and Robert M. Randolph and Susan S. Dunn, Miteff, Carter, Finney & Williams, and Robert D. Hoover, Fort Worth, ad litem, for appellees I. B. Chapman II and Parrish H. Chapman.
   OPINION

MASSEY, Chief Justice.

This is a bill of review case instituted by a divorced wife to set aside the property settlement provisions of a divorce decree. From a summary judgment in favor of the former husband, the wife has appealed.

We affirm.

In contemplation of divorce, I. B. Chapman II and Carol Cartwright Chapman entered into a separation and property settlement agreement. The agreement purported to divide the community property of the couple into two “roughly equal” shares. During the negotiations antecedent to execution of the agreement, the former husband was represented by counsel and aided by accountants. The wife was not represented by counsel. Shortly after the separation agreement was signed, the wife filed for divorce. In these proceedings the wife was represented by counsel. The divorce was granted, and the decree incorporated the property settlement agreement.

At a later point in time, the husband sought a change in the child support provisions of the divorce decree. In resistance to such attempt the wife hired another lawyer. During a review of the situation with the second lawyer, the wife discovered what she deemed to have amounted to misrepresentations of the husband made in order to induce her to enter into the property settlement agreement. By reason thereof she filed her suit.

In preparation for suit, the wife sought to take depositions of various persons and financial organizations. The wife’s notice of intent to take such depositions was quashed by the trial court. On appeal the wife complains that the failure of the trial court to allow her to take the depositions was an abuse of discretion as it denied her right of discovery; and that there was further abuse of discretion by failure of the trial court to grant her motion for continuance. Additionally, the wife complains that the trial court erred in granting or considering the husband’s motion for summary judgment because the husband failed to satisfy the requirements therefor under Tex.R.Civ.P. 166-A, “Summary Judgment”, and, furthermore, because her own pleadings raised genuine issues of material fact.

We are unable to agree with any of the wife’s contentions. The circumstances of the instant case are almost identical to those in Bankston v. Bankston, 251 S.W.2d 768 (Tex.Civ.App.—Dallas 1952, mand. overr.). There a wife sought to overturn a property settlement agreement incorporated into a divorce decree on the ground that the settlement was procured by fraud practiced on an unrepresented and unsuspecting wife.

The divorce decree in the instant case is very similar as it embodied a property settlement agreement which was based on valuations of community property, most of which were ongoing business concerns managed by the husband. Here, as in Bank-ston, the husband had provided the wife with the material information of the value and nature of these concerns; and it was this information on which the wife relied in agreeing to the property division. Such information was contained in a sworn affidavit which set forth the personal financial statement of the husband and the wife.

It is this information which is made the basis of the wife’s bill of review under detailed allegations of fraud. The wife alleged that the values assigned to the property were incorrect and were stated so as to benefit the husband. Specifically the wife alleged that (1) her former husband made representations of the value of the properties appearing in the schedules (the personal financial statements), (2) the question of value was a material fact when the property settlement was made, (3) the representations made by the husband were false when they were made, (4) the representations were made to induce her to rely on them so that she would enter into the property settlement agreement, (5) the representations were relied upon and her reliance was the reason she entered into the settlement agreement, and (6) as a result of the representations by the husband, the wife was injured and suffered damages because she did not receive that to which she was justly entitled. The wife did not, however, allege any specific act of fraud on the part of her former husband; nor did she specify any particular property which had been allegedly undervalued, nor its proper value.

The husband’s motion for summary judgment was supported by sworn affidavits which included a certified copy of the divorce decree and a sworn statement by his certified public accountant attesting to the valuation of the property included in the property settlement agreement. The sworn statements attested to the method by which the husband’s property was valued at the time the divorce was decreed.

In reviewing a summary judgment case, the evidence is to be considered in the most favorable light to the party against whom the motion was granted. In this bill of review case, we must examine the evidence which the wife could or did present to the trial court. The theory upon which the wife sought relief was fraud by hei husband. We must carefully scrutinize the facts presented as they pertain to such fraud, in particular to its nature and character, i. e., “intrinsic” or “extrinsic”.

The wife made no allegations as to how and when her husband’s fraud was discovered, or why it was not discovered sooner than it was. She simply concluded that as a result of the fraud, she would be entitled to more money than was received. In the posture of the case on motion for summary judgment this should have been supported by affidavits which identified with specificity the.property involved and its value. Instead, the wife merely relied on general allegations and complained that she should have received a larger amount from the property settlement. This is insufficient.

Addressing the wife’s allegations of fraud, we hold her complaint to have been based solely upon intrinsic fraud of her husband. In order to vacate the judgment, the wife must fail unless she can show extrinsic fraud. As in Bankston, 251 S.W.2d 768, 772, the fraud alleged at most relates to untruths which misled the wife into acquiescence and approval of an unjust division of property. Furthermore, assuming presentment that misrepresentations were made by the. husband upon which the wife relied, the misrepresentations obviously bore only on matters at issue in the former trial (or which could have been at issue on that trial) and therefore amounted to no more than intrinsic fraud.

In order to vacate the divorce judgment by applicable Texas law the wife must show extrinsic fraud, that is “fraud in the means whereby the judgment was procured, and not fraud in the cause of action or matter put in issue and presented for adjudication, * * Bankston at 251 S.W.2d 768, 772.

As stated in State v. Wright, 56 S.W.2d 950, 952 (Tex.Civ.App—Austin 1933, no writ), “[T]he fraud which will authorize vacation by the court of its former judgment in such case must be what has been termed ‘extrinsic fraud’. By that is meant fraud by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial.” (Emphasis supplied.) Thereafter examples were set forth where on the first trial plaintiff had been misled by his adversary by fraud or deception, did not know of the suit, or was misled by his attorney — in other words fraud which denied him the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert.

The record in this case establishes that the wife was only able to raise as an issue mere intrinsic fraud, a species of fraud which, even if established, would be insufficient to vacate the judgment. For that reason summary judgment was proper.

Similar, though distinguishable, cases where summary judgments were reversed are: Brownson v. New, 259 S.W.2d 277 (Tex.Civ.App.—San Antonio 1953, writ dism’d); Dudley v. Lawler, 468 S.W.2d 160 (Tex.Civ.App.—Waco.1971, no writ). Similar cases where summary judgments were affirmed are: Raney v. Mack, 504 S.W.2d 527 (Tex.Civ.App.—Texarkana 1973, no writ); Biggs v Biggs, 553 S.W.2d 207 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ dism’d); Kuper v. Kuper, 336 S.W.2d 819 (Tex.Civ.App.—Amarillo 1960, writ dism’d).

Cases upon the law, apart from those by summary judgment, are: McMurry v. McMurry, 67.Tex. 665, 4 S.W. 357 (1887), which was discussed by Judge Norvell in Brownson v. New, supra, 259 S.W.2d 277 at 282; O’Meara v. O’Meara, 181 S.W.2d 891 (Tex.Civ.App.—San Antonio 1944, writ ref’d); Carver v. Huff, 283 S.W.2d 317 (Tex.Civ.App.—Amarillo 1955, writ ref’d n.r.e.); and Neill v. Neill, 386 S.W.2d 642 (Tex.Civ.App.—Austin 1965, writ dism’d).

Furthermore, under the circumstances of this bill of review case, the wife is barred by equitable estoppel from raising the issue of fraudulent concealment. “If it appears that there were facts and circumstances present at the time the false representations were made sufficient to put the injured party upon his guard or to cast suspicion upon their truth, and he neglected to avail himself of the warning thus given, he will not afterwards be heard to complain, for the reason that his own conduct contributed to his injury.” Bankston, 251 S.W.2d 768, 773.

Even when new evidence is discovered, should it appear that it could have been timely discovered and produced at the former trial by the exercise of due care and diligence in searching for it or by interrogation of persons cognizant of the facts, equity cannot be invoked to later use that evidence to vacate a judgment. Such is the situation here.

In addition to the appeal of this case on its merits, there are two motions which are presented for consideration. The first of these was filed by the wife to strike certain items which the husband caused to be included in the transcript. These items consist of the motions and documents filed with the Supreme Court when the wife sought leave to file a petition for writ of mandamus having relation to the trial court’s denial of her attempts to obtain discovery. These items were not necessary for an adjudication of this appeal. The motion to strike this material is granted. We shall tax the costs of inclusion of this unnecessary material, $86.00, against the husband.

A second motion was filed by the husband requesting that he be permitted to file a supplemental transcript. The contents of this supplemental transcript likewise relate to the wife’s attempt to obtain leave of the Supreme Court to file a petition for a writ of mandamus. For the same reason the wife’s motion is granted, we deny the husband’s motion. The material sought to be added is not necessary to the disposition of the appeal, and is not properly a part of the record. The motion for leave to file the supplemental transcript is denied.

We affirm the judgment of the trial court. Costs of appeal are taxed against the wife, with the exception of $86.00 thereof charged against the husband.