text:
    Paul R. SEEGERS et al., Appellants, v. Walter P. SPRADLEY, Appellee.
    No. 7676.
    Court of Civil Appeals of Texas, Beaumont.
    May 1, 1975.
    Rehearing Denied May 22, 1975.

      Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellants.
    Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
   STEPHENSON, Justice.

Plaintiff, Walter M. Spradley, brought this suit against defendants, Paul Seegers and James Lewis, to impress certain real estate with a constructive trust, for specific performance of an oral contract to convey a one-third interest in such real estate and for punitive damages. Trial was by jury, and judgment rendered for plaintiff upon the issues. The parties will be referred to here as they were in the trial court or by name.

The jury, in essence, made these findings : That defendants promised plaintiff he would have an option on this land in exchange for his guaranteeing $100,000 of their loan to purchase the land. That defendants promised that they would sign a written document setting forth the terms of such an option. That such promise should have been expected to induce, and did induce, plaintiff to guarantee the loan. That prior to this transaction there had existed between plaintiff and defendant See-gers a relationship of mutual trust and confidence. That prior to this transaction there had existed between plaintiff and defendant Seegers a relationship of confidentiality. That on or about 1972 defendants first absolutely denied the promise. That defendants did not intend to perform such promise when it was made. That the amount of punitive damages is $275,000. That plaintiff and defendants did agree on all of the material terms of the proposed option.

Defendants’ first series of points of error are to the effect that plaintiff could not recover on an oral contract for the sale of land because of the Statute of Frauds. That plaintiff could not recover on the basis of a constructive trust, because there was no evidence to support, insufficient evidence to support, and that the jury findings that the relationship between plaintiff and defendants was one of mutual trust and confidence and one of confidentiality were contrary to the great weight and preponderance of the evidence. In passing upon the no-evidence points, we consider only the evidence favorable to the jury findings, and in passing upon the remaining points, we consider the entire record.

The Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.01, V.T.C.A., (1968), reads in part as follows:

“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
“(1) in writing; and
“(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
“(b) Subsection (a) of this section applies to
“(4) a contract for the sale of real estate.”

The most recent expression we find from our Supreme Court on this subject is in Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex.1974):

“Oakes’ first contention is that a constructive trust requiring the defendant to account for profits is an appropriate remedy only when breach of a fiduciary relationship is involved. This is clearly erroneous ‘[T]he circumstances which give rise to a constructive trust may or may not involve a fiduciary relationship.’ Restatement of Restitution § 160, Comment a at 641. It is not essential for the application of the constructive trust doctrine that a fiduciary relationship exist between the wrongdoer and the beneficial owner. Actual fraud, as well as breach of a confidential relationship, justifies the imposition of a constructive trust. Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962) ; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559 (1948); Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948); Miller v. Huebner, 474 S.W.2d 587 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.).
* * * * * *
“Constructive trusts, being remedial in character, have the very broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice. Fitz-Gerald v. Hull, supra; Crumpton v. Scott, 250 S.W.2d 953 (Tex.Civ.App.—Fort Worth 1952, writ ref’d n. r. e.). A transaction may, depending on the circumstances, provide the basis for a constructive trust where one party to that transaction holds funds which in equity and good conscience should be possessed by another. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960); Grand Trunk Western R. Co. v. Chicago & W. Ind. R. Co., 131 F.2d 215 (7th Cir. 1942). See Dobbs, Handbook on the Law of Remedies, § 4.3 (1973). Moreover, there is no unyielding formula to which a court of equity is bound in decreeing a constructive trust, since the equity of the transaction will shape the measure of relief granted. Magee v. Young, 145 Tex. 485, 198 S.W.2d 833 (1946). See 89 C.J.S. Trusts § 139 at 1020; 54 Am.Jur.Trusts §§ 218, 219, 220. In Magee v. Young, supra, this court, indicating the flexibility of the constructive trust remedy, stated, ‘[i]n order to satisfy the demands of justice, courts of equity will indulge in presumptions and even pure fiction.’ 198 S.W.2d 883 at 885.” (516 S.W.2d at 131)

In Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401, 405 (1960), we find this statement:

“A constructive trust does not, like an express trust, arise because of a manifestation of intention to create it. It is imposed by law because the person holding the title to property would profit by a wrong or would be unjustly enriched if he were permitted to keep the property. It is used, among other things, to adjust rights of partners. The same basic rules, in situations such as we have here, apply to joint venturers.”

The plaintiff and two defendants were the only witnesses called to testify as to the issues raised in these points of error. The plaintiff gave the following testimony: He met and became acquainted with defendant Seegers some time in 1963. At the time plaintiff was a member of a law firm and did some legal work for Centex Corporation. Defendant Seegers was an officer for Centex. Plaintiff and defendant Seegers became very close friends during the period of time from 1963 through 1971. They saw each other socially and visited in each other’s home. Seegers became a member of an investment club of which plaintiff was a member as a result of plaintiff’s proposing his name. They discussed their personal and business affairs and plaintiff had trust and confidence in Seegers and what Seegers told him. Seegers knew plaintiff had been engaged in real estate investment and asked plaintiff to give him as opportunity to join such activities. Plaintiff arranged for Seegers to become a partner with him and others in a partnership known as the Bara Company. Such company was engaged in all aspects of real estate investment. See-gers’ contributions to the partnership consisted solely of signing promissory notes individually and as guarantor for the partnership. During the approximately two years Seegers was in the company, there was never a written agreement among the partners.

Plaintiff had a farm and ranch in Hunt County, and he and Seegers had been visiting there. While driving home Seegers told plaintiff that he was very much interested in getting a piece of farm or ranch land. In November, 1967, plaintiff told Seegers about the availability of the 911 acre tract of land, which is now the subject of this suit. Seegers and plaintiff rode together with a real estate agent to see this land, and Seegers indicated an interest in buying it. The land was owned by an estate being administered by the Trust Department of the Republic National Bank in Dallas. Seegers did not want to pay cash and was informed by the Bank that after allowance for a down payment, the top $100,000 of the note would have to be guaranteed by a responsible person. Seegers told plaintiff about these terms, and plaintiff said he would guarantee the note if defendant would give him an option on a one-third interest in the land. That conversation took place December 11, 1967. Defendant Lewis then came into this transaction and agreed to purchase the land with Seegers, each to own one-hálf. About December 15, 1967, plaintiff met with Seegers and Lewis and presented to them a letter setting forth the terms of the option he was to have. Seegers and Lewis disagreed with some of the terms and stated their objections, and plaintiff and he agreed to the changes. Later Seegers made handwritten notations on the December 15, 1967 letter setting out all of the changes which were discussed. Seegers and Lewis told plaintiff they would sign an agreement with those changes on it. On December 29, 1967, the transaction was closed. Seegers and Lewis paid a cash down payment, and executed a note for the balance and received a deed to the land. Plaintiff executed a written guarantee agreement as required by the bank. The terms of the option, generally, were to be that it should be for a term of five years, and plaintiff could purchase a one-third interest in the entire tract by paying one-third of the cost, plus carrying charges less any tax benefits received. No written option was executed, and this suit was filed October 13, 1972.

The evidence set forth above supports the findings by the jury that the relationship between plaintiff and defendants was one of mutual trust and confidence and one of confidentiality. The no-evidence points are overruled.

The testimony given by defendant See-gers was to the effect generally, that he and plaintiff had nothing more than a business relationship. However, such testimony did no more than raise questions of fact for the jury to determine, which it did, favorably to plaintiff. It must be admitted that the relationship between defendant Lewis and plaintiff was of a different nature, but Lewis conceded that Seegers did most of the negotiating with the bank as to the terms of the sale to them, as well as with plaintiff, as to the terms of the option. That such negotiations were done with his knowledge, consent and agreement. The remaining points as to these jury findings are overruled.

Applying the laws concerning constructive trusts as quoted above from Meadows, supra, and Omohundro, supra, the trial court properly impressed this land with a constructive trust. Defendants holding the title to this land would profit by a wrong and would be unjustly enriched if they were permitted to keep the one-third interest upon which they had agreed to give plaintiff an option. In equity and good conscience plaintiff should be allowed to purchase a one-third interest in this land upon the terms agreed.

Defendants have points of error that there is no evidence and insufficient evidence to support the jury finding that the parties had agreed upon all of the material terms of the option, and that such finding is contrary to the great weight and preponderance of the evidence. We apply the rules set out above in passing upon these points of error.

Plaintiff’s letter of December 15, 1967 (mentioned earlier in this opinion), together with handwritten notations made by defendant Seegers, was admitted in evidence. Plaintiff testified at length as to a meeting on that date with defendants. He stated that Seegers presented the changes in the letter that he wanted to he made, and that plaintiff agreed to the changes. Seegers and Lewis indicated they would sign an agreement with those changes in it. He also stated that there was no further discussion between the parties until after the transaction for the purchase of the land was closed December 29, 1967. Defendant Seegers testified that such a meeting took place in reference to the letter of December 15, 1967. He stated that the notations on the letter were in his handwriting, and covered all of the objections he had at that time. He also testified that plaintiff agreed to all of the proposed changes. He then told plaintiff that if plaintiff would bring him a contract with those terms in it, he would sign it. Defendant Lewis, after examining the letter together with the notation, testified that it was his understanding that if a document containing the terms, as penciled in, was presented to him and Seegers that they would sign it.

The primary bone of contention made here by defendants as to the failure to agree on the material terms of the option, concern the meaning of the term “carrying charges” as used in the letter of December 15, 1967. Defendants argue that capital gains tax should be included in computing the carrying charges. The notations on the letter of December 15, 1967, contain a paragraph on the subject of carrying charges including this:

“ . . . less an amount equal to federal income taxes which would have been paid by each of you if the carrying charges had been originally paid by me.”

The judgment entered by the trial court contained a statement that the parties had stipulated that defendants would furnish the court all of the facts and information necessary for the court to compute the sums to be paid by plaintiff for his claimed interest in the land, in lieu of their producing copies of their federal income tax returns. The judgment then contained the recitation that such information had been furnished and considered by the court, and plaintiff was ordered to pay each defendant a specific amount of money. The formula used by the trial court in arriving at those amounts of money is not set forth in the judgment, but defendants have no points of error complaining about such computation. The points of error as to the jury finding that the parties had agreed upon all of the material terms of the option are overruled.

Defendants attacked the jury finding that they did not intend to perform their promise to give plaintiff an option at the time such promise was made. That finding is essential to allow plaintiff any recovery in this case which is founded upon fraud.

On cross-examination, plaintiff testified that defendants did not tell him anything which was fraudulent other than that they would give him an option and put it in writing.

It is almost Hornbook law that a person’s intention is a matter of fact; that the fact may be established by circumstantial evidence taken in connection with the breach, but the breach alone does not establish such fact. Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118, 119 (1943). See also, Medina v. Sherrod, 391 S.W.2d 66, 69 (Tex.Civ.App.—San Antonio 1965, no writ): “Mere proof of nonperformance will not support an inference of fraudulent intent.”

Plaintiff labored under the burden of establishing, by probative evidence, that defendants had the intent, at the very time they made the promise (in 1967) of refusing to perform the oral agreement. Steine v. Hillcrest State Bank of University Park, 423 S.W.2d 443, 446 (Tex.Civ.App.—Dallas 1967, no writ).

We have made a careful study of the record before us, and there is no evidence to support this jury finding, other than the fact that they did not give plaintiff the option and put it in writing. Point of error No. 10 is sustained.

Defendants have a series of points of error as to the finding by the jury of $275,000 punitive damages and the award by the court of such damages. It is contended that there is no evidence of any theory upon which punitive damages might be recovered in this case. It is also argued that there is no way to determine whether the amount of punitive damages is reasonably proportionate to actual damages. The points of error also include no evidence, insufficient and great weight and preponderance of the evidence points.

It is recalled that there was no attempt to recover, and no recovery of actual damages in this case. All of the relief sought by plaintiff and granted by the court is in equity except as to the punitive damages. Defendants argue that, at most, plaintiff proved only a breach of contract, and in this State no punitive damages can be recovered in that type of cause of action. It is also argued that in Texas a finding of actual damages is necessary to support recovery of punitive damages.

We find defendants’ contentions thus summarized to be meritorious. Exemplary damages cannot be recovered for a simple breach of contract which is not accompanied by a tort, even though the breach is brought about capriciously and with malice. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629, 631 (1943). See also, McDonough v. Zamora, 338 S.W.2d 507, 513-514 (Tex.Civ.App.—San Antonio 1960, writ ref’d n. r. e.), wherein the authorities are reviewed with the court concluding that punitive damages may be allowed “if and only if, a distinct tort is alleged and proved, independent of the contract action.” We sustain defendants’ point No. 38.

Moreover, there must be a finding of actual damages before an allowance of punitive damages may stand. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 409 (1934); Montgomery Ward & Co. v. Randio, 419 S.W.2d 407 (Tex.Civ.App.—Beaumont 1967, writ ref’d n. r. e.).

It is also the rule in this state that the amount of exemplary damages should be reasonably proportioned to the actual damages found. Southwestern Investment Company v. Neeley, 452 S.W.2d 705, 707 (Tex.1970). There is no finding of actual damages and we have no basis upon which to make the comparison required under the rule laid down in Neeley, supra.

All of the cases mentioned above were actions in law and not in equity. Plaintiff in the present case could have elected to sue for actual damages, or for specific performance. He could not secure both actual damages at law and specific performance in equity at the same time. Plaintiff elected to pursue his equitable remedy but we are of the view that this—standing alone, in and of itself— should not deny his recovery of punitive damages if the pleadings and the evidence support such damages. International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963).

The pleadings and proof giving rise to the constructive trust, and the breach of the implied contract to convey the land, must also amount to a wilful tort in order to support an award of punitive damages. There is no evidence of probative force supporting any theory upon which punitive damages can be recovered in this case.

Finding no merit to the remaining points of error, they are overruled. The judgment of the trial court is reformed to deny the recovery of punitive damages and, as reformed, it is affirmed. Appellants shall pay one-half of all costs in all courts and appellee shall pay one-half.

Reformed and affirmed.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    BROWN-McKEE, INC., Appellant, v. J. F. BRYAN & ASSOCIATES, Appellee.
    No. 8271.
    Court of Civil Appeals of Texas, Texarkana.
    May 6, 1975.
    Donald M. Hunt, Key, Carr, Evans & Fouts, Lubbock, for appellant.
    Dewey M. Dalton, Dalton, Moore, Forde, Joiner & Stollenwerck, Dallas, for appel-lee.
   CHADICK, Chief Justice.

This is a default judgment case. The sufficiency of a sheriff’s return on a citation is the decisive issue; Writ of error, as authorized by Vernon’s Tex.Rev.Civ.Stat.Ann. art. 2249, is the mode of review. The plaintiff in the trial court and appellee here is J. F. Bryan & Associates. The defendant below and appellant here is Brown-McKee, Inc. The trial court granted J. F. Bryan & Associates a default judgment awarding them in a recovery on sworn account of $6,252.00 from Brown-McKee, Inc., together with attorney fees of $1,500.00 and costs. The judgment of the trial court is reversed and the case remanded for new trial.

The plaintiff’s original petition in the trial court identified Brown-McKee, Inc., as a Texas Corporation and E. Jack Brown as its president, upon whom service of process might be made at the corporation’s principal office at P. O. Box 2878, Lubbock, Lubbock County, Texas. The sheriff’s written return on the citation, so far as material here, is as follows:

“Came to hand on the 22 day of March, 1974, by 1 o’clock P.M. Executed at LUBBOCK, within the County of Lubbock, at 4:15 o’clock P.M., on the 22 day of March, 1974, by delivering to the within named Brown-McKee Const. Co., by delivering copy of citation to J. E. SEAY — SECRETARY TREASURER OF BROWN MCKEE 906 — SLATON HIGHWAY — each, in person, a true copy of this Citation together with the accompanying copy of this petition, having first indorsed on same the date of delivery. * * * ” (A printed form with blank spaces to be filled by the officer executing the return was used. Matter inserted by typewriter is underscored, hand written matter is capitalized and the remainder is printed.)

The return of an officer executing a citation is regulated by Texas Rules of Civil Procedure, rule 107. The rule requires the officer to state when the citation was served, the manner of service and to certify that a true copy of the citation with the accompanying copy of the petition was delivered to the defendant; and to sign the return officially. In this instance the return appears on the face of the record and the judgment recites due service of process.

This proceeding by writ of error is a direct attack on the default judgment. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935, opinion adopted). Review is confined to the record brought forward by the transcript as no statement of facts was filed. In a direct attack on a default judgment the presumptions ordinarily indulged in support of a judgment are not available to support it. Flynt v. City of Kingsville, supra. The unavailability rule also applies in such cases to inferences of jurisdictional facts. Jurisdiction of the trial court must affirmatively appear on the face of the case record. McKanna v. Edgar, supra. Within the limitations indicated a return should receive a fair, reasonable and natural construction, and effect given to its plain intent and meaning. The return in its entirety, together with the citation to which it refers, must be considered in determining its sufficiency. Redundant or surplus matter will be disregarded. 72 C.J.S. Process § 97; 62 Am.Jur.2d Process, Sec. 165.

Brown-McKee, Inc., is the defendant named in the citation and accompanying petition. Brown-McKee Const. Co. is .not mentioned in either the citation or petition. Nothing in the record tends to prove the two are one and the same entity. On the face of it, Brown-McKee, Inc., is a corporation while Brown-McKee Const. Co. does not purport to be a corporation. The absence of corporate reference in the name indicates a different type of entity. The return shows that a copy of the citation was delivered “to J. E. Seay — Secretary Treasurer of Brown-McKee.” The officer executing process compromised by dropping descriptive terminology in the name when it was written into the return by hand. The record, outside the recitals of the judgment, is equivocal and ambiguous and does not affirmatively disclose that Brown-McKee, Inc. was served with citation in accordance with either Vernon’s Tex.Bus.Corp.Act, Ann. art. 2.11, subd. A or Tex.Rev.Civ.Stat.Ann. art. 2029. Valid service is not shown under either article. It is immaterial to decision whether or not these articles are in conflict. The trial court did not acquire jurisdiction of Brown-McKee, Inc. The judgment of the trial court is reversed and the case is remanded for new trial.


author: NYE, Chief Justice.

text:
    Farrell M. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 911.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 24, 1975.
    Rehearing Denied May 22, 1975.
    See also Tex.Civ.App., 513 S.W.2d 949.

      Gary T. Giles, Edmond J. Ford, Jr., Corpus Christi, for appellant.
    Davis Grant, Gen. Counsel, State Bar of Texas, Austin, for appellee.
   OPINION

NYE, Chief Justice.

This is a disbarment action. The State of Texas, acting through the Grievance Committee for District 11-A, instituted this disbarment suit against Farrell M. Smith as defendant in the district court. The case was tried to a jury. Based on the findings of the jury, the trial court suspended Smith for the period from January 28, 1972, to September 1, 1974. Both Smith and the State of Texas have appealed from the trial court’s judgment.

This suit was originally brought against Smith in January, 1972, by the Grievance Committee for the State Bar of Texas, to disbar appellant for professional misconduct because he violated the Code of Professional Responsibility and the Canons of Ethics of the State Bar of Texas. At the first trial, based upon a unanimous jury verdict, Smith was assessed a five (S) year suspension from the practice of law, commencing on January 28, 1972. Smith appealed the trial court’s judgment. This Court reversed and remanded the cause for a new trial for the reasons set forth in our Opinion. Smith v. State, 490 S.W.2d 902 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

The present suit which forms the basis of this appeal was tried in January, 1974, pursuant to plaintiff’s second amended original petition alleging nine (9) counts of professional misconduct for which the State of Texas sought disbarment of Smith. Subsequently, those portions of plaintiff’s complaint designated as Count One, Two, Five, Six, Eight and Nine were dismissed with prejudice leaving Counts Three, Four and Seven.

Count Three charged Smith with his failure and refusal to relinquish possession of a file belonging to a former client, Mrs. Flores, and his failure and refusal to turn it over to Tom McDowell, who was her selected attorney. Count Four, the most serious of the charges, alleged that Smith advised Fred E. Hendricks, his client, to give false testimony while testifying during the taking of a deposition in connection with a certain suit styled F. E. Hendricks, et al, v. Robert J. Kubicek. Count Seven alleges Smith violated Canon 13 in bringing suit against a client for a fee, such constituting improper conduct. The jury answered thirteen special issues finding: that Smith had willfully refused to relinquish the file of Mrs. Flores to her new attorney (Count Three); that prior to the taking of Fred E. Hendricks’ oral deposition in the Kubicek case, Smith, knowing of Hendricks’ prior conviction, advised him to answer “No” if he were asked if he had been convicted of a felony during the taking of his deposition (Count Four); and that Smith willfully violated Canon 13 by bringing suit against Timothy H. Butler (Count Seven). The trial court rendered judgment reprimanding Smith for his professional misconduct under Counts Three and Seven. The court ordered that Smith be suspended from' the practice of law for the period from January 28, 1972, to September 1, 1974, for his conduct, as found by the jury, of advising Hendricks to answer “No” should he be asked if he had been convicted of a felony during the taking of the deposition (Count Four).

Smith has perfected his appeal in this cause and presents to us twenty-one points of error. Although the punishment phase of this disciplinary action is past, appellant apparently seeks exoneration from all counts that found him guilty of dishonorable conduct. The appellee State of Texas brings forward a single cross-point requesting that this Court reform the judgment and impose more punishment on Smith than that which was rendered by the trial court. Smith divides his argument into three different categories since each arose out of three separate transactions occurring at different times and including different parties. For this reason, we will do the same treating separately the Hendricks’ Count, the Flores’ Count and the Butler Count.

THE HENDRICKS’ COUNT (FOUR)

Smith in his first six points of error complains that there was no evidence or insufficient evidence to either support the submission of special issues 10 and 11 or to support the findings of the jury with respect thereto based on the sole testimony of the discredited witness, Charles W. Henderson. Special issues 10 and 11 with the jury’s answers thereto read as follows:

“Do you find from a preponderance of the evidence that prior to the taking of Fred E. Hendricks’ oral deposition in the Kubicek case, the Defendant, Farrell Murray Smith, knew that said Fred E. Hendricks had theretofore been convicted of a felony ?
Answer ‘We do’ or ‘We do not.’
Answer We do.
******
Do you find from a preponderance of the evidence that prior to the taking of the deposition of Fred E. Hendricks, Farrell Murray Smith advised Fred E. Hendricks to answer ‘No,’ should he be asked if he had been convicted of a felony during the taking of a deposition in connection with a suit styled Fred E. Hendricks et al, vs. Robert J. Kubicek, et al, Cause No. 96800-A on the docket of the 28th Judicial District, Nueces County, Texas?
Answer ‘We do’ or ‘We do not.’
Answer: We do.”

Appellant Smith complains that the trial court erred in not disregarding the above special issue jury findings because there was no evidence to support such issues or the submission of such issues. The law requires that each special issue must be raised by the evidence. Whether an individual issue is raised by the evidence is to be determined by the application of the test that is identical with that employed in determining whether an instructed verdict should be given. 3 McDonald, Texas Civil Practice § 12.-08(c) (1970); Imperial Insurance Company v. Ellington, 498 S.W.2d 368 (Tex.Civ. App.—San Antonio 1973, no writ). It appears then that if there is any evidence of probative value to support such issues, it was the court’s duty to submit the issues.

The evidence which goes to support the submission of special issues 10 and 11 was from witness Charles W. Henderson. Such testimony centers around a transaction between Smith, as the attorney representing Fred E. Hendricks, and Charles W. Henderson in the prosecution of a lawsuit against a former partner, Robert I. Kubi-cek, for an accounting of partnership property. Henderson testified that Kubicek’s attorney arranged to take the deposition of Hendricks and himself at his office. Before proceeding to the deposition at Kubi-cek’s attorney’s office, Smith met Henderson and Hendricks at his office. On the way to the deposition Henderson testified that Hendricks was preoccupied and worried about what he was going to say when they asked him, “Have you ever been convicted of a felony?” The following discussion took place between Smith and Hendricks on the way to the deposition:

“Q. Well, do you recall Farrell Murray Smith’s answer to that inquiry on the part of Henderson?
A. His remarks about that subject were the same remarks he had always made about the subject.
Q. Had the subject been discussed before that?
A. Oh, yes, it had.
Q. All right. What were these remarks ?
A. His remarks were, number one, don’t worry about it, because it’s not important. This is a civil matter, has nothing to do with criminal law, so you just forget about it. Number two, when we go over there and they ask you, you know, ‘Have you ever been convicted of a crime?’ say, no. And if they ever ask you about it again, you know, if they say, well, here it shows you did this, say well, I thought it was traffic fines, you know, you were talking about. You know, play dumb was basically the advice. But actually the impression I got was that it wasn’t anything to worry about, you know, stop wasting my time on the subject.
Q. Do you recall the question being asked on the taking of the deposition of Hendricks, whether or not he had ever been convicted of a felony ?
A. Yes, I do.
Q. What was his answer, if you recall?
A. His answer was no.”

Henderson testified that this discussion between Smith and Hendricks had taken place on other occasions prior to the deposition of Hendricks and that Smith gave the same answer every time: that being that this was a civil case that it had nothing to do with criminal law; not to worry about it; it’s not going to come up; and that there’s no way they can know about it. Henderson further testified that Smith knew at the time of the deposition that Hendricks had been convicted of a felony and that it was an established fact between the three of them (Smith, Hendricks and Henderson) that Mr. Hendricks had been convicted of a crime. Special issues numbers 10 and 11 were raised and supported by the evidence and were properly submitted by the trial court. 3 McDonald, Texas Civil Practice § 12.08(c) (1970).

The appellant next complains that there was insufficient evidence to support the findings of the jury with respect to these same two special issues. Smith argues that all of the evidence was from witness, Charles W. Henderson, who appellant says was discredited. In deciding the insufficient evidence point, we are required to consider all the evidence in the record. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). See Calvert “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 359 (1960).

Smith testified that he had no prior knowledge of Hendricks’ conviction prior to the taking of the deposition nor had any such discussions taken place prior to the deposition with either Hendricks or Henderson about such conviction. Smith stated that he had never asked Hendricks to answer that question and did not know such answer was untrue or that Hendricks had been convicted of a felony. Although there appears to be conflicting evidence as to what Smith knew or did not know, and as to what Smith said or did not say, there was ample evidence to support the findings of the jury on the two specials issues 10 and 11. Garza v. Alviar, supra. See also McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.Sup.1964).

Next, appellant complains that the case should be reversed because there should be no disciplinary action taken against him based on the sole testimony of the discreó.ted witness, Charles W. Henderson. The appellant argues that Henderson was not worthy of belief and that his testimony was totally discredited by the cross examination by appellant’s attorney. The appellant does not contend that Henderson was incompetent to testify but only that his credibility was questionable. It is the well established rule that the credibility of a witness presents a question for the jury even though the credibility of a witness is questionable or that his testimony was given under such circumstances as would naturally throw discredit on him. It is for the jury to determine the credibility of a witness whose testimony has been impeached. It is for the jury to determine whether a witness has been successfully impeached and what credit shall be given to his testimony. It is for the jury to determine how far ignorance or immorality is to be considered as effecting his testimony. And then, as such, the jury is the sole judge of the credibility of the witness and the weight to be given his testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Great American Insurance Company v. Murray, 437 S.W.2d 264 (Tex. Sup.1969); Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524 (Tex.1975); Rosenblum v. Bloom, 492 S. W.2d 321 (Tex.Civ.App.—Waco 1973, writ ref’d n. r. e.) ; 88 C.J.S. Trial § 214.

The appellant argues at length that the State’s burden in the Hendricks’ Count was to prove by a preponderance of the evidence the elements of subornation of perjury. Although what appellant is accused of may constitute the criminal offense of “subornation of perjury”, this was not a criminal trial. The State does not have the burden of proving the criminal offense. Appellant was accused of telling a client to misstate a particular fact. Proof of such constituted professional misconduct. Professional misconduct is grounds for disciplinary action regardless of whether the act or acts in question constituted an offense under the Penal Code of this State. See State Bar Rules, Art. 12, § 9, subd. a (2), Vernon’s Tex.Rev. Civ.Stat.Ann. The question before the trial court was whether such acts constituted “professional misconduct” not whether all the elements of a criminal offense were present. The general public is protected from those who commit criminal offenses through our Penal Code. To hold that a lawyer can be disciplined only upon proof of a criminal offense would run afoul of those principals which all attorneys agree to uphold upon being admitted to the bar. The bar rules are there for a purpose. Such purpose is to prevent those acts which appellant has done. The jury chose not to believe the appellant. It is our duty to uphold the jury’s verdict when supported by the evidence. Appellant’s points 1 through 6 are overruled.

THE FLORES’ COUNT

The Flores’ Count concerns the willful refusal of appellant Smith to relinquish the files of a former client to her new attorney. The appellant brings forward ten (10) points of error. Included primarily in the points are “no evidence” and “insufficient evidence” points concerning the jury findings on nine (9) special issues. Additionally, the appellant complains of the Court’s charge. The record actually reveals that the trial court gave Smith nearly every conceivable instruction he requested on his behalf concerning an attorney’s rights to a possessory lien in Texas. Even with all of the instructions allowed by the trial court, the jury by a unanimous vote found against Smith on all nine (9) issues. The jury chose not to believe Smith and found that Smith was not exerting or trying to exert a possessory lien but that he was willfully and wrongfully refusing to relinquish a client’s documents. The jury found further that Smith knew that he had not delivered the documents to the subsequent attorney and found that Smith did not, in good faith, believe that he had a right to withhold such files until a court order was obtained by the succeeding attorney. We have carefully reviewed the entire lengthy statement of facts. The testimony at the trial below did not differ materially from the first trial herein. Even the points of error are not substantially different from those disposed of in our previous Opinion. See Smith v. State, 490 S.W.2d 902 (Tex.Civ. App.—Corpus Christi 1973, writ ref’d n. r. e.). Having carefully reconsidered all of appellant’s points, we do not find any reversible error.

THE BUTLER COUNT

The jury found that Smith had willfully violated Canon 13 by bringing suit against Timothy Butler for a fee. The evidence shows that Butler had consulted Smith’s firm to establish the costs and feasibility of a divorce. The conference lasted only a few minutes. Subsequently, Butler received a statement from Smith’s firm showing that there was thirty dollars ($30.00) due for professional services rendered. Butler called the attorney with whom he had consulted, a Mr. Mac-manus in Smith’s firm, and told him that he could not pay all of the money at one time because his wife was sick but would pay it on the next pay day. Smith then contacted Butler at his job by telephone telling him that the money was due and he would have to be paid by the end of the week. Butler stated that he did not think that he owed Smith anything. Approximately three (3) weeks later, Smith filed suit against Butler in justice of the peace court for the thirty dollar ($30.00) fee and one hundred dollars ($100.00) for collecting fees. We have reviewed all of the evidence in the record and it supports the jury’s finding that Smith violated the Canon of Ethics which constituted professional misconduct. Appellant’s point 16 is overruled.

Appellant’s last point of error was that the case should be reversed because the court overruled the defendant’s motion in limine thereby allowing the attorney for the State to introduce himself as general counsel for the State Bar of Texas. We deem such introduction of Mr. Grant as proper. In any event, the appellant has not demonstrated that such introduction complained of amounted to such an error that was reasonably calculated to cause and probably did cause a rendition of an improper verdict in this case. Rule 434, Texas Rules of Civil Procedure. All of appellant’s points of error have been considered and they are overruled.

The appellee-appellant State of Texas in its one point of error complain that the trial court erred in failing to enter a judgment of disbarment against appellant Smith in that the jury, by its verdict, found that appellant Smith was guilty of felonious conduct, to-wit: subornation of perjury. The State contends that the failure of the trial court to enter a judgment disbarring Smith was an abuse of discretion on the part of the trial court. The State’s portion of this appeal, however, was dismissed by this Court in our order dated September 19, 1974. Our order of dismissal showed that the transcript which was tendered by the State to the Clerk of this Court was received 76 days after the State’s motion for new trial was overruled by operation of law. The record was filed too late to give this Court jurisdiction of the State’s appeal. We, therefore, cannot express any opinion concerning the State’s point of error in its attempted appeal.

The judgment of the trial court is, therefore, accordingly affirmed.

Affirmed.

      . Canon 13 which was repealed in December 1971, but which is applicable to the case at bar in that such acts occurred before the date of its repeal provides as follows:
      “13. Suing a Client for a Fee. Controversies with clients concerning compensation are to be avoided by the member so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his services; and lawsuits with clients shall be resorted to only to prevent injustice, imposition or fraud.”


author: PEDEN, Justice. EVANS, Justice

text:
    Dick GOTTLIEB, Appellant, v. Fred HOFHEINZ, Appellee.
    No. 16419.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 20, 1975.
    Rehearing Denied April 17, 1975.
    Second Rehearing Denied May 22, 1975.

      David H. Berg, Houston, for appellant.
    Frank J. Knapp, Steven C. Oaks, Roger T. Baker, Houston (Butler, Binion, Rice, Cook & Knapp, Houston, of counsel), F. Russell Kendall, Jarrell D. McDaniel, Travis C. Broesche, Houston (Vinson, Elk-ins, Searls, Connally & Smith, Houston, of counsel), for appellee.
   PEDEN, Justice.

Election contest. In the runoff election for the office of mayor of the City of .Houston held on December 4, 1973, Mr. Fred Hofheinz was certified to have received 2,806 more votes than Mr. Dick Gottlieb.

This is an appeal from the granting of a motion for summary judgment in favor of the contestee, Mr. Hofheinz. The judgment stated that the contestant’s pleadings failed to raise a genuine issue as to any material fact that would entitle the Contestant to any relief under the Texas Election Code.

The first two points of error of the Contestant, Mr. Gottlieb, are that his petition raises genuine issues of material fact 1) under Art. 9.14, Texas Election Code, V. A.T.S., and 2) under Art. 9.15, Texas Election Code; his other two points are that 3) the provisions of Art. 8.08, Subd. 3, of the Texas Election Code are mandatory and 4) summary judgment may not properly be granted in an election contest.

Article 9.14 of the Texas Election Code provides:

“If any vote or votes are found upon the trial of any contested election to be illegal or fraudulent, the trial court shall subtract such vote or votes from the poll of the candidate who received the same, and after a full and fair investigation of the evidence shall decide to which of the contesting parties the office belongs.”

Article 9.15 of the Election Code states:

“If it appears on the trial of any contest provided for in Section 134 [art. 9.-06] that it is impossible to ascertain the true result of the election as to the office about which the contest is made, either from the returns of the election or from any evidence within reach or from the returns considered in connection with other evidence, or should it appear from the evidence that such a number of legal voters were, by the officers or managers of the election, denied the privilege of voting as, had they been allowed to vote, would have materially changed the result, the court shall adjudge such election void, and direct the proper officers to order another election to fill said office ; which election shall be ordered and held and returns thereof made in all respects as required by the general election laws of the State.”

The Contestee-appellee contends that the Contestant’s petition seeks to disqualify numerous votes for failure to comply with provisions of the Texas Election Code which are merely directory, not mandatory; that if these challenges are disregarded only 2289 votes remain under attack and Hofheinz’s plurality was 2806, so the 2289 that are challenged can’t change the outcome. Further, that an additional 1,206 of the 2289 are votes challenged on legally insufficient grounds, and appellant’s pleadings raise no issue as to their validity.

The record reflects that on the ninth day after the filing of the Contestant’s original petition, the Contestee filed special exceptions. Contestant filed an amended petition thirteen days later and Contestee again promptly filed special exceptions. They were heard by the trial court within two weeks (Feb. 25), and the Contestant filed his second amended original petition on March 11. Contestee moved for summary judgment on April 25, 1974 and on the next day the Contestant filed his third amended original petition. Contestee again moved for summary judgment on May 23, 1974. It was heard on June 3 and signed on June 11.

No summary judgment proof was offered in support of the motion or in opposition to it.

Situations in which a defendant’s motion for summary judgment on the pleadings can be sustained are very limited. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). In that case the trial court apparently had granted summary judgment on the theory that the plaintiff’s factual allegations were inadequate. Our Supreme Court held that since it was not a case in which the facts alleged by a plaintiff established either the absence of. a right of action or an insuperable barrier to a right of recovery, a take-nothing summary judgment on the pleadings could not stand. Rules 90 and 91, Texas Rules of Civil Procedure were cited.

“When a motion is directed solely to the pleadings and is not supported by affidavits, depositions, admissions, or other extrinsic evidence, the motion is closely analogous to a special exception challenging the sufficiency of the opponent’s pleading as a matter of law. It may contend that the petition upon its face shows that the court is without jurisdiction to determine the claim asserted, or may challenge the sufficiency of the petition to allege an enforceable claim, or assert that it shows on its face the existence of a defense; or it may urge that the answer fails to state a tenable defense. No supporting or counteraffida-vits are necessary on such a motion. The court takes as true every allegation of the pleading against which the motion is directed. If the pleading, when liberally construed, is sufficient in law to show a fact issue, the motion will be overruled. On the other hand, if the pleading on its face conclusively shows that the moving party is entitled to judgment, the motion will be granted.” 4 McDonald, Texas Civil Practice (1971 rev.) 152, § 17.26.8.

One of the basic disputes in this case is over several provisions of the Election Code; are they mandatory or merely directory?

We turn to the Contestant’s current pleading. He alleged in paragraph CX that 14,984 votes cast in some 24 precincts were illegal because those casting them had failed or refused to sign the signature roster as required by Article 8.08 of Vernon’s Texas Election Code. He argues that such requirement is mandatory, and that if the 14,984 votes are declared invalid the outcome of the election would be changed because 9,724 of them were cast for the Con-testee and 5,260 were cast for the Contestant. That if these votes were subtracted, the Contestant would have a majority of 1,658 votes.

Article 8.08 of the Election Code contains these provisions for use of a signature roster:

“Subdivision 1. An election officer shall receive from the voter his registration certificate, when he presents himself to vote. If the voter has lost or mislaid his certificate or left it at home, he shall make an affidavit of that fact. The election officer shall announce the voter’s name in an audible voice and shall ascertain that his name appears on the list of registered voters or shall satisfy himself, in the manner stated in Section 48a of this Code, that the voter is a registered voter and is entitled to vote in that precinct. He shall then require the voter to sign the signature roster provided for in Subdivision 3 of this Section .
“Subdivision 3. There shall be kept at each polling place a signature roster of persons offering to vote at the election. Each person offering to vote shall sign the roster if he is able to do so

We find no provision in the Texas Constitution requiring voters to sign a signature roster, and we find nothing in the provisions of Art. 8.08 which by express language or by any reasonable implication evidences an intention on the part of the legislature that a qualified voter shall not vote or that his vote shall not be counted if he fails or refuses to sign the signature roster. We conclude that the legislature intended to make the signature roster provisions of Art. 8.08 directory, not mandatory.

Having decided that the provisions in question are not mandatory we still must consider the well-established Texas rule that at the trial stage of election contest proceedings, proof of violations of merely directory provisions of the Election Code may cause the disqualification of votes if it is established that such noncompliance was the result of fraud or serious misconduct and that it changed the result of the election. In deciding our case we apply this rule of law and the cited holding in Swil-ley v. Hughes, supra, to the allegations in the Contestant’s current petition.

Although the thrust of the allegations in paragraph CX is that the signature roster provisions are mandatory, not that the failure or refusal of the 14,984 voters to sign the roster was done fraudulently or was caused to be done fraudulently, there are allegations of fraud in the petition which, liberally construed (as they must be), relate to this paragraph. For example, in the opening portion of this petition the Contestant stated: “. . . this court is requested to set aside the results of that election because of the irregularities and fraud that permeated the conduct of the mayoral race and changed the outcome, for the following reasons: . . . ”

We hold that the Contestant’s allegations as to the 14,984 votes do not establish the absence of his right of action or an insuperable barrier to his right of recovery, so summary judgment was not properly granted as to those allegations. Swilley v. Hughes, supra. Allegations of fact must be made to support the label of fraud if special exceptions are to be withstood, but we hold that summary judgment will not take the place of exceptions under these circumstances.

We look to other allegations in the Contestant’s current pleading.

He alleged in paragraphs, I, III, IV and CVII that the votes cast by 2,493 voters (by our count) should be disqualified because their precinct judges did not acknowledge the affidavit pages they signed stating that their voter registration certificates were missing or lost.

Absent any allegation and proof that these votes were fraudulently induced or cast, it seems clear that the statutory provisions were directory and would not result in disqualification of the voters in question. It was held in Ramsay v. Wilhelm, 52 S.W.2d 757 (Tex.Civ.App.1932, writ ref.) that failure of a voter to sign the affidavit of lost poll tax did not disqualify him from voting or render his ballot illegal, absent fraud, unfairness in holding the election or tampering with ballots or returns.

In paragraph CVII, the Contestant alleged only that the failure to sign and attest the affidavits was not done as required by the statute. Fraud was not alleged, but at the end of a number of other paragraphs making this and other complaints about the conducting of the election he made this allegation:

“Each and every vote enumerated above is in violation of the Election Code and should be deducted from the previously certified total; alternatively these fraudulent votes cannot be separated because voting machines were used and therefore the entire precinct should be set aside; moreover in this precinct as well as others, the true will of the people can never be determined when fraud permeates the polling place.”

We find no requirement in the Texas Election Code that precinct judges sign and acknowledge each page of the affidavit of lost or missing certificates. However, we hold, for the reasons stated in ruling on the voter roster allegations, that summary judgment will not lie as to these affidavit allegations.

In paragraph CVIII of the Contestant’s current pleading he alleged:

“Illegal and fraudulent votes were procured .on behalf of Contestee Hofheinz in that cash bonuses were offered to precinct judges prior to the election by a group headed by a Hofheinz campaign official, which official is at present an official of the Hofheinz administration. This money was to be paid and was paid, to precinct judges who procured the highest percentage of voters in their precincts on election day, December 4, 1973.
“The precinct judges, unduly influenced by the offer and payment of cash inducements, in turn unduly influenced voters in favor of Contestee on election day, December 4, 1973, and thereby changed the result of the election; therefore these votes must be deducted from the previously certified total.”

These allegations do not identify any voters or election judges, do not contend how many voters were influenced and do not suggest what, if anything, was improper about the offer and payment of bonuses to get out the vote, so they appear vulnerable to attack by special exceptions.

However, it appears to us that these allegations, like others which we will not discuss, fall within the ambit of Swilley v. Hughes, so summary judgment cannot stand as to any of them.

We do not reach Contestant’s point asserting that summary judgment is not proper in an election contest.

The Contestee has presented this cross point of error:

“The Trial Court Erred in Overruling Appellee’s ‘Plea to the Jurisdiction’ in that Appellant Failed to Comply with the Strict, Mandatory Jurisdictional Requirements of Notice of Intention to File an Election Contest Required by Article 9.-03 of the Texas Election Code.”

Art. 9.03 of the Election Code provides:

“Any person intending to contest the election of any one holding a certificate of election for any office mentioned in this law, shall within thirty (30) days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest. By the ‘return day’ is meant the day on which the votes cast in said election are counted and the official result thereof declared.”

The record reflects that return day of the election was December 19, 1973, and that on January 16, 1974, counsel for the Contestant delivered to the Contestee a letter whose pertinent parts stated:

“I have been retained by Dick Gottlieb to represent him in a contest of the December 4, 1973 run-off election for the Office of Mayor, City of Houston. Pursuant to the Texas Election Code, Article 9.03, I inform you that the grounds for such contest are as follows:
[here are set out five numbered paragraphs alleging various irregularities.]
“Our investigation covered all of the precincts in the City; we have concluded that you were mistakenly certified as Mayor of the City of Houston by the City Couní el on January 2, 1974.”

Attached to the letter was a copy of the Contestant’s original petition in this cause. It had not yet been filed, but it was filed later that day. The Contestee was not served with citation in this case until January 23, 1974, several days after 30 days after return day of the election.

The case most often cited in deciding whether adequate notice was given is Barker v. Wilson, 205 S.W. 543 (Tex.Civ.App.1917, no writ). The court held:

“The statute requires that the written document or documents delivered to the contestee shall contain notice of two separate and distinct facts, which are: (1) The contestants’ intention to contest the election; and (2) the ground on which such contestant relies to sustain such contest. Notice of both of these facts is essential to invoke the jurisdiction of the court to hear and determine the contest, and proof of one, without proof of the other, is of no avail. It is also required by the very terms of the statute that notice of each fact must be in writing; and therefore verbal notice, though it may be just as satisfactory tó the contes-tee, is not such compliance with the statute as confers power upon the court to hear and determine the contest.
“Applying that statute to the case at bar, we think it must be held, as was done by the learned trial judge, that the contestants in this case failed to serve upon, or deliver to, the contestee any written notice of their intention to contest the election. It may be conceded that delivery to him of the petition, setting forth the ground upon which it was claimed that the election was illegal, constituted compliance with one portion of the statute; but it contained no notice notifying the contestee that it was the intention of the contestants to file that petition in court and use it as a basis of a contest. It is no answer to that proposition to say that the contestee knew from what Mr. Burleson told him that it was the intention of the contestants to contest the election. Such information was not in writing, and therefore it did not constitute compliance with the statute.”

We have carefully examined the Texas authorities on this point. It is true that the provisions of Art. 9.03 must be strictly met if a contestant is to invoke the jurisdiction of a district court in an election contest, but we cannot say the trial court erred in impliedly finding that the written notice given by the Contestant constituted notice of intention to contest the election.

In Walker v. Thetford, 418 S.W.2d 276 (Tex.Civ.App.1967, writ ref. n. r. e.), the attorney for the contestants wrote a note on a copy of the petition he was to file later that day stating:

“A copy of this petition has this the 26th day of March, 1966, been delivered to Frank C. Dickey, Sr., County Attorney of Coke County, Texas, notifying him that this election is being contested and the grounds upon which such contest is based, /s/ Dell Barber.”

In that case the court held that the county attorney was informed in writing, before expiration of thirty days following the canvass, that contestants intended to contest the election on the grounds set out in the petition. In that case, as in ours, the petition was filed with the district clerk later on the same day that the notice had been given.

We reverse the judgment of the trial court and remand it for further proceedings.

ON MOTION FOR REHEARING

EVANS, Justice

(concurring).

On Motion for Rehearing, contestee vigorously asserts that contestant’s allegations fail to state a legal claim for relief as an election contest under the Texas Election Code. He cites cases such as Moore v. Pittman, 280 S.W. 873 (Tex.Civ.App.1926, no writ), and Roberts v. Hall, 167 S.W.2d 621 (Tex.Civ.App.—Amarillo 1942, no writ), which state the requirement that a contestant in an election contest must allege with particularity the identity of the officials involved in the alleged fraud or irregularity, the votes which were influenced and how this affected the outcome of the election.

Contestant, on the other hand, points out the difficulty of obtaining specific information in a large city-wide election, particularly where voting machines have been used, and urges the relaxation of pleading requirements upon the authority of cases such as Meriwether v. Stanfield, 196 S.W. 2d 704 (Tex.Civ.App.—Beaumont 1946, no writ), and Plambeck v. Cisco Independent School District, 363 S.W.2d 878 (Tex.Civ. App.—Eastland 1963, no writ).

A motion for summary judgment may be granted on the pleadings where the plaintiffs petition fails to state a legal claim for relief. Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540, 543 (Tex.1971). However, as a general proposition, a motion for summary judgment does not take the place of special exceptions and the pleadings should be settled prior to the hearing of such motion. Andrews v. Austin Motor Truck Co., 259 S.W.2d 772, 774 (Tex.Civ.App.—Austin 1953, no writ); Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974). The sequence of procedural events presents a close question as to the applicability of this proposition.

The trial court sustained contestee’s special exceptions and required contestant to replead by March 11, 1974 specifically alleging the names, addresses, precinct numbers and polling places of voters whose votes allegedly had been illegally or fraudulently cast, how many such votes were cast and how such votes would materially have affected the outcome of the election. Subsequent to this ruling, which set the standard of pleading in the case, contestant filed a second amended original petition listing identified precincts and voters but also carrying over the general allegations of fraud and illegality contained in his original petition.

On April 25, 1974 contestee filed his first motion for summary judgment, giving notice that such motion would be heard on May 6, 1974. In this motion contestee made reference to the court’s ruling on special exceptions and asserted that contestant had failed to state a cause of action since an analysis of his allegations failed to show a sufficient number of questioned votes to have changed the outcome of the election. The day following service of this motion, April 26, 1974, contestant filed his third amended petition which contained additional specific allegations but also carried forward the general allegations of fraud and illegality. In response to this petition, contestee on May 23, 1974 filed his second motion for summary judgment in which he again asserted that contestant’s pleading failed to allege a legally sufficient basis for an election contest under the Texas Election Code.

As shown in our original opinion, paragraph CVIII of contestant’s third amended petition urges that “illegal and fraudulent votes” were procured on behalf of contes-tee by the offering of cash bonuses to precinct judges who obtained the highest percentage of voters in their precinct on election day and who allegedly influenced voters in favor of contestee. As stated in our opinion these allegations appear vulnerable to special exceptions in that they fail to identify the election officials involved, the votes influenced by them and how this materially affected the outcome of the election. Although no additional special exceptions were levied against this particular paragraph, its allegations did not comply with the repleader requirements of the court’s prior ruling in the case. The question then is whether these allegations may be considered as stating a legal claim for relief precluding disposition of the case upon motion for summary judgment.

Election officials are presumed to have done their duty and it is the contestant’s burden in an election contest to allege and prove by specific allegations that the conduct of the election abrogated the will of the people. Jordan v. Westbrook, 443 S. W.2d 616, 618 (Tex.Civ.App.—San Antonio 1969, no writ); Moore v. Pittman, supra. It is important that our courts diligently protect against such contests being aired solely for political purpose and that such contests be heard only upon triable issues developed through appropriate pretrial procedures.

However, where special exceptions have been sustained and the plaintiff fails or refuses to replead in accordance with the ruling of the court, the proper method of disposition is by order dismissing the case with prejudice. Farias v. Besteiro, 453 S. W.2d 314, 317 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). A summary judgment is not the proper remedy in such a case. Meyer v. Wichita County Water Imp. Dists. Nos. 1 and 2, 265 S.W. 2d 660 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.).

Where the petition states a legal basis for relief, even though not pleaded with the particularity which may be required upon exception, the petitioner’s claim should not be summarily denied. The entry of a summary judgment, in effect, precludes further opportunity to amend. Texas Department of Corrections v. Herring, supra. Since it does not appear from the face of contestant’s petition that a legal claim for relief cannot be stated upon further repleader in conformity with the trial court’s order, a summary judgment should not have been rendered on the pleading.

I concur in the denial of contestee’s motion for rehearing.


author: SPURLOCK, Justice.

text:
    Yandell ROGERS, Jr., Appellant, v. B & R DEVELOPMENT, INC., Appellee.
    No. 17619.
    Court of Civil Appeals of Texas, Fort Worth.
    April 25, 1975.
    Rehearing Denied May 30, 1975.

      Thompson, Coe, Cousins & Irons, and Franklin H. Perry, Dallas, for appellant.
    King & Massey, Inc., and Marion L. Massey, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal by Yandell Rogers, Jr., from an order overruling his plea of privilege to be sued in his domicile, Harris County.

This suit was brought by B & R Development, Inc., against Yandell Rogers, Jr., for damages for fraud growing out of a real estate transaction. Plaintiff seeks to maintain venue in Tarrant County, Texas, under Section 7 of Article 1995, Vernon’s Ann.Tex.Civ.St., which provides that in all cases of fraud suit may be brought in the county where the fraud was committed.

Rogers brings this appeal on one point of error; that being that plaintiff failed to prove a prima facie case under this Section of the statute.

We affirm.

In October, 1972, James Rust, as President, and acting in behalf of the plaintiff, B & R Development, Inc., saw a sign located on the property made the basis of this suit. The sign in effect said: for sale, 90 acres, all or part, terms available, call Mr. B. Williams, (214) 742-1541. This property is located in Tarrant County, Texas. A photograph of this sign is in the record.

The plaintiff, through its president, called from Tarrant County to Dallas County and asked for B. Williams, the name appearing on the sign. He called the number appearing on the sign. He asked Mr. Williams, “Are you the Mr. B. Williams that has the 90 acres of land for sale on Union Church Road?” He said, “I am.” It is conceded by appellee in his brief and during oral argument that this call was placed from Tarrant County to Dallas County and the above representations were made by Mr. Williams to plaintiff in Tarrant County. That is, the representations were received and heard by plaintiff in Tarrant County. Rogers contends that this is insufficient to constitute a representation or misrepresentation in Tarrant County. Appellee asserts that this is sufficient and in addition thereto the representation of 90 acres being for sale was on a sign in Tarrant County, Texas, with Mr. Williams’ name on the sign and his phone number and this was also a representation made in Tarrant County.

The telephone call resulted in an appointment to see Mr. Williams in Dallas. Negotiations were conducted in Dallas County thereafter.

Mr. Byron Williams and Yandell Rogers, Jr., are each attorneys. Mr. Rogers testified that he and Byron Williams were very close personal friends, that their relationship was basically that of attorney-client. He further testified that Williams knew that Rogers was moving to Houston and asked Rogers what he was going to do with the land. The defendant then requested that Williams handle it for him. Rogers responded, “Sure, you do all of my work, so, you know, if anything comes along, fine.” They had no brokerage arrangement and there is no evidence that Williams was a licensed broker or a real estate agent. He planned to pay Williams based upon the work he had to do in connection with the handling of the matter. Mr. Williams did all the paper work, prepared the sales contract and the instruments to close the real estate transaction and ultimately was paid an attorney’s fee of about $5,000.00. He filed the answer in this suit. The defendant instructed Williams not to furnish a survey.

After considerable negotiations between plaintiff, and Williams acting as agent for Rogers, a sales contract was prepared and signed by the plaintiff on July 9, 1972. Williams prepared this, contract of sale which provided for a purchase price of $270,000.00 for the sale of “90 acres at $3,000.00 per acre.” It further provided, “RELEASE CLAUSE — Seller to release acreage to Purchaser at $3,000.00 per acre.” It further provided that, “All acreage sold or retained by B & R Development, Inc. & Frank Whitmire from the 90 acres from Abstract 295 purchased from Mr. Yandell Rogers, Jr. is to have ingress & egress to public or private road.”

Appellee asserts that venue should be sustained in Tarrant County, Texas, because the defendant acting through his attorney-agent represented in Tarrant County, Texas, that the tract of land contained 90 acres and that this was false because it contained only 83.31 acres. It was conceded that the tract contained only the above amount of acreage. Figured at $3,000.00 per acre it would mean that plaintiff paid $20,070.00 for acreage that it did not receive. Throughout the negotiations it was represented to the plaintiff that said tract contained 90 acres.

In the case of Texas Employers’ Insurance Ass’n v. Sprabery, 507 S.W.2d 340 (Fort Worth Civ.App., 1974, no writ hist.), in a venue hearing under this same section, venue was sustained in the county of plaintiff’s residence who talked long distance to the doctor in Amarillo. Dr. Thomas made the statement made the basis of the fraud suit, while he was in Amarillo, during a telephone conversation he was then having with appellee, who, at the time, was in Wichita Falls, Wichita County, Texas. The misrepresentation was thus made in, to, or communicated to, appellee while he was in Wichita County, Texas. Therefore, venue was sustained in Wichita County.

We hold that Byron Williams, while in Dallas County, communicated the misrepresentations to James Rust, President of plaintiff company, in Tarrant County, Texas. The sign also was physically located in, and read by Mr. Rust in Tarrant County, Texas, and was thus also a misrepresentation.

Plaintiff proved all the elements of fraud and clearly established its right to recover compensation for the shortage of acreage in the tract of land involved. Ray v. Barrington, 297 S.W. 781 (Waco Civ. App., 1927, no writ hist.) ; Brewer v. Ross, 290 S.W. 781 (El Paso Civ.App., 1926, ref.); Carpenter v. Bandy, 293 S.W.2d 126 (Texarkana Civ.App., 1956, ref.); First State Bank v. Von Boeckmann-Jones Co., 359 S.W.2d 171 (Austin Civ.App., 1962, no writ hist.) ; Texas State Highway Department v. Kinsler, 230 S.W .2d 364 (Beaumont Civ.App., 1950, ref.).

Appellee further contends that the evidence is insufficient because there is no evidence that Rogers authorized the sign, knew of its existence, ratified the act of placing the sign on the property, and no evidence he did not have 90 acres of land for sale. In this connection appellant relies upon cases involving a landowner listing his property for sale with a broker whose sole duty was to find a buyer and bring the buyer and seller together. The law applicable in such a situation does not apply here. Rogers and Williams had the legal relationship of attorney-client and that of old friends. The relationship of attorney and client being essentially one of agency, the usual rules of agency apply in regard to the imputation of knowledge. Here Williams, an attorney, had caused and permitted the sign to be placed on the property in Tarrant County, Texas, reciting that the tract contained 90 acres. He made such misrepresentations to the plaintiff, he prepared a sales contract reciting that the tract contained 90 acres and was being sold for $3,000.00 per acre, he closed the real estate transaction, and Rogers received the benefits of the transaction. Whether Rogers actually knew each of these items is immaterial because such knowledge that his attorney had is imputed to him. Texas Employers Insurance Ass’n v. Wermske, 162 Tex. 540, 349 S.W.2d 90 (1961); Nunnery v. Texas Casualty Insurance Company, 362 S.W.2d 865 (Austin Civ.App., 1962, no writ hist.) ; Dow Chemical Company v. Benton, 357 S.W.2d 565 (Tex.Sup., 1962) ; Foster v. Wagner, 337 S.W.2d 485 (El Paso Civ.App., 1960, reversed on other grounds, 161 Tex. 333, 341 S.W.2d 887).

Even if it is assumed that the act of Williams in representing the tract of land as containing 90 acres was an unauthorized act, this Court is of the opinion that such act was ratified by Rogers in closing the transaction and accepting the benefits. The principle of law applicable is that where the act of the agent is unauthorized but has proven beneficial to his principal, and the benefits of such act are retained by the principal, a presumption of ratification by the principal will arise from slight circumstances. Knowles v. Northern Texas Traction Co., 121 S.W. 232 (Texas Civ.App., 1909, dism.)

The deed executed and delivered in culmination of this transaction provided for a cash payment and a balance secured by a deed of trust to Byron L. Williams, Trustee. It described the land by metes and bounds and as containing 90 acres of land “more or less.”

The question arises as to whether or not this was a sale by acre or in gross.

The applicable law is stated as follows :

“The phraseology of the contract or conveyance is not necessarily controlling in determining the character of the sale. Extrinsic or parol evidence is sometimes admissible to show that a transaction which appears from a writing to be a sale in gross is, in fact, a sale by the acre, particularly when fraud, misrepresentation, or mutual mistake is alleged.” 58 Tex.Jur.2d 340 (1964), Sec. 139. For a discussion on this subject see 20 Texas Law Review, p. 446, “Excesses and Deficiencies in Texas Land Sales,” and O’Connell v. Duke, 29 Texas 300 (1867).

Under the facts of this case a fact issue existed as to whether or not this was a sale by the acre.

The defendant was called to testify by the plaintiff as an adverse witness. He did not deny any of the essential elements of this cause of action as plead and proved by the plaintiff. The trial court could take this into consideration.

In determining the sufficiency of the evidence in support of a trial court’s presumed findings, we must observe the well established rules to the effect that all evidence adverse thereto must be disregarded and only the evidence favorable to the presumed or implied findings can be considered, indulging every legitimate conclusion which tends to support such finding. Brown Company v. Terrell, 310 S. W.2d 757 (Amarillo Civ.App., 1958, no writ hist.).

We overrule appellant’s point of error.

The judgment is affirmed.