author: TOM G. DAVIS, Judge.

text:
    Larry Lee CHRISTIANSEN, Appellant, v. The STATE of Texas, Appellee.
    No. 57187.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 3, 1979.

      Ralph Taite, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Stephen J. Wilensky and Les S. Eubanks, Jr., Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the offense of theft. V.T.C.A.Penal Code, Sec. 31.03(d)(4)(A). Punishment, enhanced by proof of one prior felony conviction, was assessed by the jury at 20 years and a $10,000 fine. V.T.C.A.Penal Code, Séc. 12.-42(a).

Initially the appellant challenges the sufficiency of the evidence to support the conviction.

Bobby Rose testified that he was an employee of the First National Bank in Dallas and custodian of the records of appellant’s checking account. He testified that the records reflected that appellant opened a checking account on January 9, 1976, with an initial $100 deposit. No further deposits were made. On February 3, 1976, the account was closed. On cross-examination, Rose was closely questioned over whether the records reflected actual notice of the closing of the account to the appellant. On re-direct examination, he testified that a $4.00 charge was made against the account each time an insufficient funds check was returned by the bank. Over objection, Rose testified that as of February 3, 1976, the date the account was closed, 72 insufficient check charges had been made against the account.

Kathy Purcell, a checker at a Safeway store in Dallas, testified that on February 8, 1976, the appellant presented a check drawn on First National Bank in Dallas in the amount of $241.80 in exchange for four money orders. She further testified that the check was returned with the notation “returned not paid account closed.”

The appellant contends that the evidence is insufficient to support the conviction in that the property over which he exercised control, four money orders, was not proven to have any value. His argument is based upon the theory that there was no proof that the money orders were in fact cashed. V.T.C.A.Penal Code, Sec. 31.01(6), defines property as including “a document, including money, that represents or embodies anything of value.” It is clear that under the statutory definition the value of the money orders was their face amount ($240). Cf. Cooper v. State, 509 S.W.2d 865 (Tex.Cr.App.1974). The evidence is sufficient to support the conviction.

Appellant next argues that “the State having failed to prove a value proved the defendant guilty of theft by check [V.T. C.A.Penal Code Sec. 32.41].” The record does reflect that appellant properly requested a charge on the lesser included offense of issuance of a bad check under Sec. 32.41, supra. The key distinction between the offense of theft under V.T.C.A.Penal Code, Sec. 31.03, and the offense of issuance of a bad check under V.T.C.A.Penal Code, Sec. 32.41, is whether the defendant in fact receives any property. Receipt of property and proof of its value are critical elements in the offense of theft. They are, however, not required to prove issuance of a bad check. Although issuance of a bad check, a Class C misdemeanor, may under some circumstances be a lesser included offense of theft, there is nothing in the evidence before us to have required the trial court to have submitted the charge on the lesser included offense. Art. 37.09, V.A.C.C.P.; Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976); Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976).

Appellant next contends that the trial court erred in allowing evidence of extraneous offenses. The appellant properly objected to the testimony elicited from Rose that when appellant’s account was closed on February 3, 1976, the record reflected that there had been 72 charges made for insufficient funds checks.

It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Hines v. State, 571 S.W.2d 322 (Tex.Cr.App.1978); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1976); Halliburton v. State, 528 S.W.2d 216 (Tex.Cr.App.1975). The well-known exceptions to the general rule against extraneous offenses were set forth in Hines v. State, supra, where this Court quoted from Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), as follows:

“ ‘Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred — what has been termed the “res gestae” — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act. (5) To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.’ [Footnotes omitted.]”

In the instant case, the State was required to prove that the appellant intended to deprive the owner of the property. V.T.C.A. Penal Code, Sec. 31.03(a). Although V.T.C. A.Penal Code, Sec. 31.06, provides that this intent may be presumed when the defendant obtains the property by issuing a check without sufficient funds, Subsection (d) specifically provides: “Nothing in this section prevents the prosecution from establishing the requisite intent by direct evidence.” The trial court did not err in allowing testimony about the 72 other insufficient funds checks.

Appellant next argues that V.T.C.A. Penal Code, Sec. 32.41, issuance of a bad check, is a special statute that controls over the general theft statute, V.T.C.A.Penal Code, Sec. 31.03. As stated above, issuance of a bad check may under some circumstances be a lesser included offense of theft where the State fails to prove that the defendant obtained property or fails to prove its value. It is not, however, a special statute that encompasses all theft by check type offenses. See and compare Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977), with Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977) (Opinion on State’s Motion for Rehearing).

The appellant in a pro se ground of error makes a generalized attack on V.T. C.A.Penal Code, Secs. 31.03 and 31.06, by contending that they are “so deeply blended and dependent upon one another that without 31.06 there is no such charge as ‘THEFT — PASSING WORTHLESS CHECK.’ ” This contention is patently without merit. V.T.C.A.Penal Code, Sec. 31.06, merely codifies a presumption which the State may in appropriate cases rely on in proving a theft offense. Many times, as in the instant case, there will be evidence to demonstrate a defendant’s intent without exclusive reliance on the presumption contained in V.T.C.A.Penal Code, Sec. 31.06. The appellant pro se also advances a similar argument to that presented by his counsel above that there is an irreconcilable conflict between V.T.C.A.Penal Code, Sec. 31.03 and V.T.C.A.Penal Code, Sec. 32.41. For the reasons stated above, we find this contention to likewise be without merit.

The appellant pro se next contends that he was the victim'of vindictive rein-dictment by the prosecutor when he refused to enter a plea of guilty. This contention, even if factually true, is without merit. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Cowan v. State, 562 S.W.2d 236 (Tex.Cr.App.1978).

Appellant pro se next contends that evidence of prior convictions not alleged in the information were introduced at the punishment phase of the trial. The record reflects that the information originally charged the appellant with the commission of two prior felony offenses and sought to invoke the provisions of V.T.C.A.Penal Code, Sec. 12.42(d), which could have resulted in an automatic life sentence. The State dismissed the third count of the information and punishment was assessed in accordance with V.T.C.A.Penal Code, Sec. 12.42(a). The appellant’s complaint that evidence of other felony convictions not alleged in the information were introduced at the punishment stage of the trial is without merit. Article 37.07, V.A.C.C.P., specifically provides that the prior criminal record of a defendant is admissible at the punishment phase of the trial.

The appellant pro se next contends that he should not have been tried on a felony information. The record reflects that appellant waived his right to indictment and agreed to proceed to trial on a felony information. We have reviewed the waiver and find it fully complies with Art. 1.141, V.A.C.C.P. King v. State, 473 S.W.2d 43 (Tex.Cr.App.1972). No error is shown.

Appellant pro se next argues that the trial court had no jurisdiction because he was at the time of the offense working as a “federal” agent investigating the pornography business. The record of petitioner’s trial is devoid of any information to factually support this contention. Assuming, arguendo, that the appellant was some sort of “special employee” of a federal law enforcement agency, such fact standing alone would not exempt him from prosecution for violation of the penal laws of this state.

The appellant pro se finally contends that both the defense counsel and the prosecutor suppressed vital evidence. The appellant argues that the fact that he was working as a special employee for a federal law enforcement agency was “suppressed” and therefore violative of the holding of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963). Assuming that the appellant could factually support his contention that he was an “employee” of a federal investigative agency, such evidence would not be material to the instant case under the teachings of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), since it is clear that the omitted evidence does not create a reasonable doubt as to the appellant’s guilt which does not otherwise exist.

The judgment is affirmed.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    CITY OF CORPUS CHRISTI, Corpus Christi Independent School District, and Corpus Christi Junior College District, Appellants, v. Jack DAVIS, Appellee.
    No. 1347.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 19, 1978.
    Granted in Part and Overruled in Part Nov. 29, 1978.

      Felix Hal George, Jr., Asst. City Atty., Corpus Christi, for appellants.
    Charles W. Cromwell, Wade & Cromwell, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit for delinquent taxes brought by the City of Corpus Christi, Corpus Christi Independent School District, and Corpus Christi Junior College District against defendant, appellee, Jack Davis, seeking delinquent taxes and penalties in the amount of $35,959.68 on real estate described as Block B, Brooklyn Addition and for $1,973.33 for the improvements thereon for the taxable years of 1973 through 1976 and for foreclosure of its tax lien. The trial court, sitting without a jury, entered a judgment awarding the taxing authorities the amount requested on the improvements, $25,866.33 in delinquent taxes and penalties on the real estate, and foreclosure. The taxing authorities (appellants) appeal, seeking an additional $10,-092.85 in delinquent taxes and penalties not awarded by the trial court.

The tract of land in question, Block B of the Brooklyn Addition, comprises approximately 10 acres of land on Corpus Christi Bay in the North Beach area of Corpus Christi, Nueces County, Texas. This land has been used by appellee Davis as a trailer park. Block B is the remaining portion of an original 17.95 acre tract of land which Davis purchased in 1956 and which he rep-latted into Block A and Block B. In 1961, Davis sold Block A. After this sale, Davis described the remainder of the original tract as “Block B, Brooklyn Replat” and “4.7 acres of submerged land.” These latter two tracts were separately assessed for taxes but were included under one tax account bearing the number 1180-30-10. At all material times, the property was assessed at 60% of the market value. From 1962 through 1973, the taxing authorities carried the “submerged land” on the tax roll at an assessed value of $400.00. Davis paid taxes on Block B and the “submerged land” through the year 1972. In 1973, the appellants proposed an increase in the valuation of Block B to $3.00 per square foot with no change in the “submerged land.” Davis was notified of this proposal and appeared before the Board of Equalization. After a hearing, Davis and the taxing authorities entered a compromise agreement, and as a result, the Board lowered the proposed assessment of Block B to $.85 per square foot. Block B was then assigned an assessed value of $210,150.00 while the assessed value of the “submerged land” remained the same ($400.00), resulting in a total assessed value of $210,555.00. In 1974, Davis rendered his property for the same total assessed value of $210,555.00, but in doing so, he rendered Block B at a lower value of $150,555.00 and rendered the “submerged land” at an increased value of $60,-000.00.

Davis failed to pay the taxes on the subject property for the years 1973, 1974, 1975 and 1976. Appellants filed suit to recover the delinquent taxes on Block B and the “submerged land” for these years. Prior to trial, appellants amended their petition to exclude any recovery for delinquent taxes on the “4.7 acres of submerged land” and to reduce Davis’ alleged delinquent tax liability in proportion to the $400.00 assessed value appellants ascribed to thé submerged land. Davis resisted the suit as amended on the grounds that he had previously rendered the 4.7 acres at an assessed value of $60,000.00 and that the appellants, when they excluded this portion of the land, failed to reduce the taxes in proportion to the assessed value of $60,000.00 for the years in question.

At trial, appellants introduced certified copies of their delinquent tax roll records covering the delinquent accounts. The trial court entered judgment allowing recovery of delinquent taxes on the improvements as sought by the appellants and for delinquent taxes on Block B for the years in question based on appellees’ valuation of $150,555.00. The trial court also granted a judgment of foreclosure.

Findings of fact and conclusions of law were filed which, in relevant part, are in essence as follows: 1) Davis paid all taxes as assessed by the plaintiffs on account number 1180-30-10 until 1973; 2) in 1973 the taxing authorities proposed to the Board of Equalization to raise the valuation of Davis’ account and properly notified Davis; 3) in 1973 Davis appeared before the Board of Equalization and the property under the account in question was valued at $350,925.00 market value and $210,555.00 assessed value; 4) in 1974 Davis rendered his property under this account for a total assessed valuation of $210,555.00 with $150,-555.00 for Brooklyn Block B and $60,000.00 for 4.7 acres of submerged lands; 5) in 1974 the Board of Equalization accepted Davis’ rendition and did not notify him of any increase over his rendition for this account; 6) Davis did not render his property for the years 1975 or 1976 but the Board placed the same valuation upon this property as he had rendered it in 1974; 7) the Board did not notify Davis of any proposed increase in the valuation on this account for the years 1974, 1975 and 1976; 8) the tax assessor-collector for the plaintiffs did not render to the Board for the years 1975 and 1976 any value different from Davis’ rendition in 1974; 9) the Board placed a total assessed valuation on the account of $210,555.00 in 1973-1976; 10) the plaintiffs did not present any sworn or unsworn testimony to the Board for the years 1974 through 1976 that an assessed valuation for the 4.7 acres of submerged land of $60,000.00 was unreasonable or that the assessed valuation of $150,555.00 for Block B was unreasonable; 11) the plaintiffs, prior to trial, amended their pleadings to exclude from the account the 4.7 acres of submerged land but failed to reduce the taxes in proportion to its reasonable assessed valuation; 12) plaintiffs divided the assessment for this account by placing the total $210,155.00 on Block B, Brooklyn, and $400.00 on the 4.7 acres of submerged land without approval of the Board of Equalization. In accordance with these findings of fact, the trial court refused to enter judgment awarding the appellants the total taxes sought on Davis’ land.

At the outset we must define the scope of our review in this case. We are required to “decide all issues presented by proper assignments of error . whether such issues be of fact or of law . •. . ” Rule 451, Texas Rules of Civil Procedure. The trial court filed numerous findings of fact as well as the supplemental findings of fact that were requested by the appellants. The only “finding of fact” challenged by the appellants on evidentiary grounds is actually one of the trial court’s “conclusions of law,” that $60,-000.00 is a reasonable value of the submerged lands. The parties, as well as this Court, are bound by the unchallenged findings of the trial court. Texas State Board of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884, 886 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.); Smith v. Hues, 540 S.W.2d 485, 489 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.); United States Fidelity & Guaranty Co. v. Borden Metals Products Co., 539 S.W .2d 170, 174 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.); Galvan v. Galvan, 534 S.W.2d 398, 400-401 (Tex.Civ.App.—Austin 1976, writ dism’d); Curtis v. National Cash Register Co., 429 S.W.2d 909 (Tex.Civ.App.Amarillo 1968, writ ref’d n. r. e.); McKenzie v. Carte, 385 S.W .2d 520 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). See Searcy v. Grant, 90 Tex. 97, 37 S.W. 320, 322 (1896). In addition, omitted findings are deemed found in support of the judgment on appeal if they have support in the evidence. Bednarz v. State, 142 Tex. 138,176 S.W.2d 562 (1943); Rule 299, Texas Rules of Civil Procedure.

When the appellants introduced into evidence certified copies of the City’s delinquent tax records for the years 1973 through 1976, together with the testimony of their tax assessor-collector that, according to the records, such taxes were due, delinquent and unpaid, a prima facie case for the validity of the assessed valuations and the collection of such taxes was made. Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132, 133-34 (Tex.Sup.1970); Bass v. Aransas County Independent School Dist., 389 S.W.2d 165, 172-73 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.); Newton v. Highland Park Independent School Dist., 361 S.W.2d 916 (Tex.Civ.App.—Austin 1962, no writ). Once this initial burden is met by the plaintiff in a tax suit, as was done by the appellants here, the burden of going forward with evidence shifted to the defendant taxpayer. Thereafter, in order to prevail, the taxpayer must introduce competent evidence permitted by law to invalidate the assessments. Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132,134 (Tex.Sup.1970); Bass v. Aransas County Independent School Dist, 389 S.W.2d 165, 173 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.).

Here, as noted above, Davis alleged that the appellants had failed to reduce his tax burden in proportion to the rendered and approved valuation of the submerged lands the appellants excluded from their suit as amended. See Tex.Rev.Civ.Stat.Ann. art. 7329 (1960). Keeping in mind the limited scope of our review, we will consider appellants’ points of error relating to each of the tax years in question.

In point of error number one, the appellants contend that the trial court erred in holding that appellants are bound in 1973 by Davis’ 1974 rendition. The facts concerning the 1973 tax year are undisputed. The dispute between the parties under this point of error concerns the effect that Davis’ 1974 rendition of his property should have on his tax liability for the 1973 taxable year. In 1973, the appellants proposed to change the assessment on Block B from a per acre basis to a square foot basis and proposed to increase the fair market value of Block B to $1,237,148.00, leaving the assessed value of the submerged land at $400.00. After receiving notification of this increase, Davis appeared before the Board of Equalization where an assessed value was assigned to Block B of $210,155.00 and the submerged at $400.00, resulting in a total assessed value of $210,555.00. Neither party attacks the validity of the action taken by the Board of Equalization in 1973. In 1974, Davis rendered his property and assigned an assessed value of $150,555.00 to Block B and a $60,000.00 assessed value to the submerged land for a total assessed value of $210,555.00. In the lower portion of the rendition form in parentheses appeared the notation “full market land value $350,925.” Thus, Davis rendered an assessed value equal to the total assessed value the-Board of Equalization ascribed to the land in 1973, but changed the valuation ascribed to each parcel.

Appellants, in support of their action for back taxes for the year of 1973, introduced into evidence a copy of the delinquent tax roll showing delinquent taxes of $9,799.27 due for 1973 on Block B based on its assessed valuation of $210,155.00. This assessed valuation conforms to the valuation ascribed by the Board of Equalization in 1973. The trial court entered judgment awarding the appellants the delinquent taxes for the year of 1973 on Block B which were computed upon an assessed value of $150,550.00, an amount equal to the value rendered by Davis in 1974. This was incorrect.

It is well settled that the assessment of property for tax purposes is a quasi-judicial function of the Board of Equalization and that no attack on the valuations fixed by such boards can or will be sustained in the absence of fraud, want of jurisdiction, illegality, or the adoption of an arbitrary and fundamentally erroneous plan or scheme of valuation. Polk County v. Tenneco, Inc., 554 S.W.2d 918, on remand, 560 S.W.2d 416 (Tex.Civ.App.—Beaumont 1977, no writ); City of Waco v. Conlee Seed Company, 449 S.W.2d 29 (Tex.Sup.1969); Bernhardt v. Port Arthur Ind. School Dist., 159 Tex. 488, 324 S.W.2d 163 (1959); State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954); Zavala County v. E. D. K. Ranches, Inc., 544 S.W.2d 484 (Tex.Civ.App.—San Antonio 1976, no writ); Stone v. City of Dallas, 244 S.W.2d 937 (Tex.Civ.App.—Waco 1951, writ dism’d w. o. j.); Mississippi Valley Life Ins. Co. v. City of El Paso, 131 S.W.2d 191 (Tex.Civ.App.—El Paso 1939, no writ). Davis appeared before the Board of Equalization in 1973. He does not attack the action of the Board in so valuing his property. He is, therefore, bound by the Board’s valuation of his property for the 1973 tax year. The trial court’s finding of fact that the Board of Equalization accepted Davis’ 1974 rendition will not support the trial court’s judgment which awarded 1973 taxes on Block B based on the value Davis rendered in 1974. Appellants’ point of error one is sustained.

Next we consider the 1974 tax year. In point of error number four, the appellants complain that the trial court erred in holding that the appellants are bound in 1974 by Davis’ division and assignment of value in his 1974 rendition rather than being bound by the total rendered value. In support of their suit for delinquent taxes for the year 1974, appellants introduced certified copies of the delinquent tax records and elicited testimony from the tax assessor-collector that these taxes for Block B were due, delinquent and unpaid. The parties stipulated the taxes were computed on an assessed valuation of $210,-150.00. Davis defended this prima facie case on the ground that he had rendered Block B at an assessed value of $150,555.00. In support of this defense Davis introduced into evidence a certified copy of two rendition forms which clearly set forth an assessed value of $150,555.00 based on a market value of $250,925.00 he assigned to Block B. This evidence rebutted plaintiffs’ prima facie case.

The City of Corpus Christi is a home rule city. Article 7 § 3 of the Corpus Christi City Charter requires every property owner to “render under oath to the tax assessor-collector ... a full and complete inventory of all real and personal property so owned . . . rendered and listed in the manner prescribed by the general laws of the state when applicable, unless provision is otherwise specifically made therefor herein.” The tax assessor-collector must accept the rendition made by the taxpayer whether the assessor agrees with the taxpayer’s valuation or not. Weinberg v. Molder, 312 S.W.2d 393 (Tex.Civ.App.—Waco 1958, writ ref’d n. r. e.). The Corpus Christi City Charter specifically adopts the provisions of “Articles 1048 to 1056, both inclusive, Revised Statutes of Texas, 1925, except as otherwise provided herein.” The Board of Equalization has the power and in fact it is its official duty to supervise the assessment of property and to increase or diminish the assessment and to affix a proper valuation thereto. Article 7 § 4, Corpus Christi City Charter; Tex.Rev.Civ. Stat.Ann. art. 1050 (1966). If the Board proposes to “raise the value of any property, it shall cause the tax assessor-collector to give the owner . . . notice . stating the time and place . . . [to] appear and show cause why the value should not be raised.” The Board must meet at the time and place named and hear all persons appearing concerning the value of whose property has been raised. Article VII, § 4a, Corpus Christi City Charter. See Tex.Rev.Civ.Stat.Ann. art. 1054. After the Board of Equalization has heard such persons who have appeared and examined and equalized the value of all property on the tax assessor-collector’s list, it shall approve the same. Article 7 § 4(c), Corpus Christi City Charter. (Emphasis added). See Tex. Rev.Civ.Stat.Ann. art. 1050 (1966).

In this case, the trial court found, in effect, that the Board of Equalization accepted Davis’ 1974 rendition assigning an assessed value of $150,155.00 for Brooklyn Block B and $60,000.00 for the submerged land. The trial court found the Board did not notify Davis of any proposed increase in Block B of his property so rendered. The trial court further found that appellants placed a value of $210,155.00 on Block B without approval of the Board of Equalization. The parties stipulated and the trial court so found that Davis did not receive notice from the Board of Equalization that the values he rendered were being challenged or that the Board was considering any increase in valuation on his account for the year 1974. Appellants have not attacked the trial court’s findings on eviden-tiary grounds. These findings support the trial court’s conclusion that Davis’ 1974 tax liability on Block B must be calculated on an assessed value of $150,155.00 in accordance with the Board’s approval of Davis’ rendition. This precludes calculating Davis’ 1974 tax liability on any other basis.

Appellants contend, nevertheless, that Davis is not entitled to rely upon the Board’s approval of his valuation of Block B for the 1974 tax year. Appellants make some general argument to the effect that because Davis did not render Block B and the submerged land on two separate rendition forms, that Davis is bound by the total assessed value of Block B and the submerged land, and not Davis’ separate valuation of the two parcels which the trial court found was accepted by the Board. Appellants apparently contend that in order for Davis to be entitled to have his property separately assessed, he should have clearly and separately rendered his property by completing two separate and distinct rendition forms. We do not find appellants’ argument to be persuasive.

First, appellants, in effect, are asking us to ignore virtually all of the unchallenged factual determinations made by the trial court. The general rule, as the appellants must recognize, is that a rendering taxpayer who separately renders and describes his property is entitled to have that property separately assessed. Electra Independent School Dist. v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645 (1943). The applicability and operation of this genera] rule, however, turn upon factors other than the number of forms completed by the taxpayer. See Electra Independent School Dist. v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645 (1943). Here, the taxing authorities and the taxpayer have treated the parcels in question as separate and distinct with 1) separate descriptions and 2) separate assessments. The ultimate aggregation of these separately assessed values on one form is not controlling. Appellants’ point of error four is overruled.

In point of error two, the appellants complain that the trial court erred in holding that appellants are bound in 1975 and 1976 by Davis’ 1974 rendition. The facts concerning the 1975 and 1976 tax years are not in dispute. Davis did not render his property in either 1975 or 1976. He was not notified by the Board of Equalization for those years that his assessment was being raised or changed. For the years 1975 and 1976, appellants’ records assigned an assessed valuation of $210,155.00 on Block B and $400.00 on the submerged land. Appellants, in essence, contend that because the total assessed value of both blocks remained the same and Davis failed to render his property for these years, the tax assessor was authorized to render Block B at a greater value than that value at which Davis rendered it in 1974 without notice to Davis of the increase.

In support of its judgment awarding appellants delinquent taxes for the years 1975 and 1976 computed on an assessed value of $150,155.00 on Block B, the trial court found that the Board placed the same valuation on Davis’ property in the years 1975 and in 1976 as the value Davis had rendered it in 1974. The trial court also found that the taxing agencies and the Board did not render Davis’ property at any value different from Davis’ rendition in 1974 for the years 1975 and 1976, but that the plaintiffs divided the assessment on Davis’ property by placing a total of $210,155.00 valuation on Block B without the approval of the Board of Equalization. The appellants do not attack these findings on either legal or factual sufficiency grounds. These unchallenged findings alone are sufficient to sustain the trial court’s judgment awarding delinquent taxes on Block B for the tax years of 1975 and 1976 based on a value of $150,155.00.

Article 7 § 3(b) of the Corpus Christi City Charter provides, in effect, that the tax assessor-collector shall assess and value all unrendered property and such “assessment shall be as valid and binding as if such property had been rendered by the owner thereof.” This provision, however, does not permit the tax assessor-collector to bypass approval by the Board of Equalization under § 4 of the Charter. Section 4(c) requires the Board of Equalization to examine and equalize the value of all property on the tax assessor-collector’s lists or books. After the Board of Equalization has examined and equalized the value of all property on the tax assessor-collector’s lists or books, it shall approve the same and return them in the manner provided by law. Corpus Christi City Charter, art. VII, § 4(c).

The action of the Board in approving an assessment of real property constitutes a valid assessment which cannot be subsequently changed or modified by another reassessment for additional taxes in the absence of fraud or such illegality as to render the initial assessment void. See Yamini v. Gentle, 488 S.W.2d 839, 842 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.). Polk County v. Tenneco, Inc., 554 S.W.2d 918, on remand 560 S.W.2d 416 (Tex.Civ.App.—Beaumont 1977, no writ); State v. Whittenberg, 153 Tex. 205, 265 S.W.2d 569 (1954). No such compelling circumstances are raised in the record before us. Appellants’ point of error two is overruled.

In point of error three, appellants state that the trial court “erred in holding that $60,000.00 is a fair and reasonable assessed valuation for the 4.7 acres of submerged land for the years 1973, 1974, 1975 and 1976.” This point of error is too general and multifarious to be considered on appeal. Even if we consider the arguments and authorities contained thereunder, we cannot ascertain with any reasonable certainty, the appellants’ specific complaint. As we understand the gist of the argument, appellants appear to be attacking one of the trial court’s conclusions of law on a legal sufficiency assignment of error. It is generally stated that the principal usefulness of conclusions of law is to inform the appellate court the theory on which the action was tried. If the controlling findings of facts will support a judgment on a correct legal theory, incorrect legal conclusions stated in the judgment will not require a reversal. See 4 McDonald’s, Texas Civil Practice, §§ 16.06 at p. 14; 16.05-16.06 (1971).

This point of error must be overruled for the additional reason that the appellants are, in effect, attempting a collateral attack upon an assessed value approved by the Board of Equalization. Such attacks are not permitted absent compelling circumstances not present in this case. See City of Waco v. Conlee Seed Company, 449 S.W.2d 29, 30 (Tex.Sup.1969) and authorities cited therein.

This brings us to Davis’ counterpoints No. 1 and 2 which generally complain that the trial court erred in: 1) “granting a judgment for taxes on Brooklyn, Improvements Only, Block B, an addition to the City of Corpus Christi” and 2) “by granting a judgment foreclosing a tax lien on Brooklyn, Improvements Only, Block B, an addition to the City of Corpus Christi.” Actually, these “counterpoints” should have been labeled “cross-points”. “Counterpoints” are, in essence, “reply points” as prescribed in the first clause of Rule 420, Texas Rules of Civil Procedure. Their function is to show that the point or points of the opposite party are not valid. “Cross-points” are the means by which an appellee may bring forward complaints of some ruling or action of the trial court which the appellee alleges constituted error as to him. See Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex.Sup.1967). This distinction should be observed to avoid confusion. See Rules 324 and 420, Texas Rules of Civil Procedure and commentary. In view of the liberal interpretation of the briefing rules required by Rule 420, we will consider appellee’s “counterpoints” as we understand the arguments and authorities contained thereunder.

The appellants’ trial petition sought recovery of delinquent taxes on the land and the improvements thereon described separately as follows: 1) (land) “Brooklyn Addition, Block B, an addition to the City of Corpus Christi, Nueces County, Texas, and 2) (improvements) “Brooklyn, Improvements Only, Block B, an addition to the City of Corpus Christi, Nueces County, Texas.” The trial court entered a judgment awarding appellants delinquent taxes and granting foreclosure of the tax liens as to both “tracts.” Appellee’s “counterpoints” are limited to complaining of the trial court’s action in granting a judgment for delinquent taxes and foreclosure on the improvements. Apparently appellee intends to attack the trial court’s action as it relates to both the land and improvements described above because appellee’s general arguments and authorities under these points refer to “property” and “real estate.” “Real property,” for the purposes of taxation, includes the “land itself” and “all buildings, structures and improvements, or other fixtures of whatsoever kind thereon Tex.Rev.Civ.Stat.Ann. art. 7146 (1960).

Davis apparently complains that the judgment is void because the above descriptions are not sufficient to: 1) show his lawful indebtedness, and 2) support a judgment of foreclosure. As a general rule, the requirements for a description to be considered sufficient to support a valid tax assessment are different from the requirements of the description to support a valid lien proceeding. See Arnold v. Crockett Independent School District, 404 S.W.2d 27 (Tex.Sup.1966); Vol. 21, Texas Practice, Property Taxes, §§ 223, p. 268; 249 pp. 338-341 (1975). A taxpayer may be es-topped to question the description of the property in the assessments when the assessor adopts the same descriptions used by the taxpayer. If the inadequate description, together with the taxpayer’s own knowledge, makes known to him the property that is being assessed, it is said that he is not misled. Arnold v. Crockett Independent School District, 404 S.W.2d 27, 28 (Tex.Sup.1966) and authorities cited therein. See also Charter of Corpus Christi, Art. VII, § 7.

Davis rendered his property in 1974 using the same description of which he now complains. In addition, the parties stipulated that, after he purchased the property, Davis’ original 17.95 acre tract was replat-ted into Block A and Block B, Brooklyn Replat, which was recorded in Volume 23, Page 14, of the Map Records of Nueces County, Texas. Davis furnished a copy of. this replat to the City taxing authorities. A certified copy of this replat clearly locating Block B was introduced into evidence. A copy of Davis’ deed identifying the original 17.95 acres by a metes and bounds description was stipulated to by the parties and forms a part of the record. Davis also stipulated as to the authenticity of the survey he caused to be prepared in 1956 locating the improvements on Block B which survey is a part of the record. Davis testified that he owned these improvements on January 1 of each tax year in question. We hold that Davis cannot now complain that the tax assessments are invalid due to an insufficient description of the real estate. Davis’ “counterpoint” No. 1 is overruled.

We next consider whether the property description is sufficient for foreclosure of the tax liens. Generally, if a judgment for foreclosure of a tax lien fails to describe a definite tract of land, the same is void. Arnold v. Crockett Independent School District, 404 S.W.2d 27, 29 (Tex.Sup.1966). The standard in such a case is whether or not “the judgment contains land descriptions that are so defective that the land cannot be located or identified.” Arnold v. Crockett Independent School Dist., 404 S.W.2d at 29.

The question to be determined here is whether or not “Brooklyn, Block B, an addition to the City of Corpus Christi” is definite enough to ascertain the location of the property in question. We think not.

As stated by our Supreme Court in Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, 849 (1946):

“The office of description in a deed, judgment or other writing is to furnish means of identification of land. . . . The rule was long ago announced by this court that in all instruments for the conveyance of lands the description must be so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty.”

Here the judgment does not refer to another instrument. Block B of the Brooklyn subdivision cannot be located without resort to another writing or plat. We hold that the description is, therefore, too uncertain to support that portion of the trial court’s judgment granting foreclosure.

In support of their argument that the description is sufficient, appellants rely heavily upon David Graham Hall Foundation v. Highland Park Independent School Dist., 371 S.W.2d 762 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.). There, the court held that property described as “Lot 16 of Block 87 4th Installment of Highland Park with improvements thereon” to be a “proper description for tax purposes.” This authority is not persuasive because it fails to mention whether the suit was for foreclosure of the tax lien or merely one for a personal judgment for the delinquent taxes. Appellee’s “counterpoint 2 is sustained.”

In this case, as in Arnold v. Crockett Independent School District, 404 S.W.2d 27, 28-29 (Tex.Sup.1966), the concern is not with the validity of the property description to support the tax assessment. We are concerned with the issue of whether the judgment of foreclosure is void because it does not describe the properties upon which the tax liens are ordered foreclosed. Therefore, that part of the judgment which foreclosed the tax liens on the land described as “Brooklyn Addition, Block B, an addition to the City of Corpus Christi, Nueces County, Texas” and “Brooklyn, Improvements Only, Block B, an addition to the City of Corpus Christi, Nueces County, Texas” is severed from that part of the judgment which is hereinafter affirmed and that part hereinafter reversed and rendered; and said judgment of foreclosure is reversed and the cause is remanded to the trial court with instructions that the court receive proof of the property where the tax liens are located and to enter judgment describing the property with such certainty that it can be located and identified. See Arnold v. Crockett Independent School District, 404 S.W.2d 27, 29 (Tex.Sup.1966).

That portion of the trial court’s judgment awarding appellants taxes, penalties and interest calculated on an assessed value of $150,550.00 for Block B for the tax year of 1973 is reversed and judgment is here rendered that such taxes, penalties and interest be calculated on an assessed value of $210,-155.00.

That portion of the trial court’s judgment awarding appellants taxes, penalties and interest on Block B for the tax years of 1974, 1975 and 1976 is affirmed.

The remainder of the trial court’s judgment awarding taxes, penalties and interest on the improvements only of Block B is affirmed.

The costs of this appeal are assessed 75% to appellants, City of Corpus Christi, Corpus Christi Independent School District, and Corpus Christi Junior College District, and 25% to appellee, Jack Davis.

The judgment of the trial court is REVERSED AND RENDERED IN PART, AFFIRMED IN PART, AND REVERSED AND CAUSE REMANDED WITH INSTRUCTIONS IN PART.

OPINION ON MOTION FOR REHEARING

The appellants have brought forth several points of err in their motion for rehearing. In point of error one, the appellants complain that our judgment improperly adjudged 75% of the costs of the appeal against the City of Corpus Christi and the school districts. The appellants request that we grant their motion for rehearing and tax all costs incurred in this Court to appellee Davis. Appellants’ contention must be sustained in part.

The City of Corpus Christi, Corpus Christi Independent School District, and Corpus Christi Junior College District are exempt from payment from any court costs in suits to recover taxes. City of Nacogdoches Independent School Dist. v. McKinney, 513 S.W.2d 5 (Tex.Sup.1974); City of Waco v. Owens, 442 S.W.2d 324 (Tex.Sup.1969); Electra Independent School District v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645 (1943). We do not agree, however, that all of such costs incurred in the appeal should be taxed against appellee Davis. In Nacogdoches Independent School Dist. v. McKinney, 513 S.W.2d 5 (Tex.Sup.1974), our Supreme Court noted that prior opinions had been inconsistent in the manner in which costs should be taxed as to the winning taxpayer. In that case, it was determined that the winning taxpayer should be required to pay only those costs of the appeal incurred by him on the basis that the result followed more nearly the spirit of Rule 127, Texas Rules of Civil Procedure, which provides as follows:

“Each party to a suit shall be liable for all costs incurred by him. If the costs cannot be collected from the party against whom they have been adjudged, execution may issue against any party in such suit for the. amount of costs incurred by such party, but no more.”

In this case, appellee Davis did not win his entire case on appeal and he was assessed 25% of the costs of appeal. Davis does not complain of this assessment. Since this Court still has jurisdiction of the cause, it may, and does here now, correct its judgment as to court costs as follows:

Only those court costs incurred by the defendant, Jack Davis, in this Court (25%) are adjudged against him. No costs are adjudged against the plaintiffs, City of Corpus Christi, Corpus Christi Independent School District, and Corpus Christi Junior College District.

The appellants’ remaining major contentions are presented in points of error two through four which complain of our holding that the property description contained in the trial court’s judgment were not sufficient to support a judgment of foreclosure. Appellants’ specific complaints under these points of error are that: 1) Davis waived his right to complain of the inadequacy of the property description; 2) the property description is sufficient to support a judgment of foreclosure; and 3) even if the description is not sufficient, this Court should have reformed the trial court’s judgment by supplying the missing description elements.

Appellants vigorously contend that Davis waived his right to complain of the sufficiency of the property description in the trial court. The only time during the trial process that this particular complaint was brought to the attention of the trial judge was in Davis’ motion for judgment wherein he stated, in part, as follows:

“Judgment should 'be entered declaring the assessment of account number 1180-30-30 to be void, as a matter of law, due to the insufficient description.”

It should be noted that he complained only of the sufficiency of the property description as it related to the validity of the tax assessments and not as to the validity of the judgment of foreclosure. We considered both complaints on the merits, however, and affirmed the validity of the tax assessments, but reversed and remanded as to the validity of the judgment of foreclosure. Our Supreme Court has stated that as a general rule, a judgment for foreclosure of a tax lien upon real estate which, though aided by the judgment rule, fails to describe a definite tract of land is void. Arnold v. Crockett Independent School Dist., 404 S.W.2d 27, 28 (Tex.Sup.1966). (Emphasis added). Davis has not waived his right to complain of a judgment of foreclosure that is void due to an inadequate description. These points of error are overruled.

Other points of error raised in the motion for rehearing have been considered, and they are overruled. Appellants’ motion for rehearing is granted in part and overruled in part.

      . The question of ownership of this “submerged land” is not before us. We do not express or intend to express any opinion of such ownership in this case.


author: HUTCHINSON, Justice.

text:
    CITY OF FORNEY, Appellant, v. ESTATE OF J. W. PINSON et al., Appellees.
    No. 8611.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 7, 1978.
    Rehearing Denied Dec. 5, 1978.

      H. Louis Nichols, Saner, Jack, Sallinger & Nichols, Dallas, for appellant.
    Fred Kolodey, James W. Massie, III, Kolodey & Thomas, Dallas, for appellees.
   HUTCHINSON, Justice.

This suit was instituted by appellees, landowners, against the appellant, City of Forney, seeking to have four 1960 annexation ordinances declared invalid. Appellees and appellant each filed motions for summary judgment. The trial court granted appellees’ motion and entered its judgment declaring the four 1960 annexation ordinances unconstitutional and in all things null and void ab initio. Appellant’s motion was overruled and it has perfected this appeal.

In 1960, appellant’s city council became concerned that the rapid growth of cities to its west would hinder its own growth unless it annexed the property of the appellees. At that time appellant had a population of less than 5,000 inhabitants and was unable to annex appellees’ property unless a majority of the inhabitants and qualified voters of such property petitioned appellant for annexation. In order to induce the owners and inhabitants of such properties to petition for annexation, appellant city agreed with the appellees and others that as a condition of such annexation and as a part thereof the annexed property would not be taxed by the appellant at a rate greater than $.10 per acre per year until such time as the appellant furnished the property with sewage, water, and fire protection, including fire plugs. It was further agreed that the property owners and future inhabitants thereof would not be entitled to all the rights and privileges of other of appellant’s citizens until such time as the properties were developed and approved by appellant. Appellant further agreed that the owners and future inhabitants of such property would not be bound by the acts and ordinances of appellant until such time as the properties were developed and approved. Appellant then caused its attorney to prepare the annexation petitions and the annexation ordinances each of which set forth therein the above agreements. The ordinances were subsequently enacted. In 1975, appellant city commenced assessing the properties on the same basis as other property within the city. This suit was instituted on August 18, 1976.

Appellant readily admits those portions of the four ordinances providing for a different plan of taxation than other property within its limits, persons residing thereon would not have the same rights and privileges as other inhabitants and persons residing in such area would not be bound by appellant’s ordinances are invalid as being in violation of Article III, § 1 of the Texas Constitution, Article 974g, Tex.Rev.Civ. Stat.Ann., and Article I, § 19 of the Constitution of the State of Texas. Appellant urges that the illegal portions of the ordinances be severed therefrom, leaving the annexation portions legally remaining.

Appellant city and the appellees apparently are in agreement that the applicable law governing the facts of this case is set forth in the cases of W. U. T. Co. v. State of Texas, 62 Tex. 630 (1884), as reaffirmed in Maxon v. Franz, 525 S.W.2d 714 (Tex.Civ.App. Houston-14th Dist. 1975, writ ref’d n. r. e.); San Antonio Independent School District v. State, 173 S.W. 525 (Tex.Civ.App. San Antonio 1915, writ ref’d); and City of Taylor v. Taylor Bedding Manufacturing Co., 215 S.W.2d 215 (Tex.Civ.App. Austin 1948, writ ref’d).

In W. U. T. Co. v. State of Texas, supra, the Texas Supreme Court said:

“When, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, dependent on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. . The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but, whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must stand.”
The following is taken from San Antonio Independent School District v. State, supra: “Holding that the part of the local act of 1913, constituting the school board of San Antonio, is unconstitutional in so far as it endeavors to increase the tenure of office to more than two years, does not necessarily carry with it the decision that the whole act is unconstitutional and void, for where part of a statute is unconstitutional and the remainder is constitutional, if the two parts can be possibly separated courts should do so, and not permit the invalid part to destroy the whole law. If, after the elimination of the invalid part of the law, there remains an intelligible and valid statute capable of being placed in execution and conforming to the general purpose and intent of the Legislature, the law will not be destroyed, but held to be valid and binding except as to the excised part. .
‘Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall.’ ”

In City of Taylor v. Taylor Bedding Manufacturing Co., supra, an ordinance allowed a 3% discount on ad valorem taxes due to the city if no delinquent taxes were then due. The Austin Court of Civil Appeals struck that portion of the ordinance that imposed the requirement of no delinquent taxes before the grant of the discount and left the remainder of the ordinances in effect saying:

“The elimination of that portion of the ordinance relating to delinquent taxes leaves a valid, complete and workable law of the character contemplated by the Constitution and provided for by the Legislature.”

It thus appears that in order to preserve the remaining parts of an ordinance after the invalid parts have been severed, there must remain an intelligible and valid ordinance capable of being placed in execution and conforming to the general purpose and intent of the enacting body. City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ.App. Fort Worth 1958, writ ref’d n. r. e.); City of Clute v. Linscomb, 446 S.W.2d 377 (Tex.Civ.App. Houston-1st Dist. 1969, no writ); State Ex Rel. Ratcliff v. City of Hurst, 458 S.W.2d 696 (Tex.Civ.App. Fort Worth 1970, writ ref’d n. r. e.).

The above is supported by State Ex Rel. American Manufacturing Company of Texas v. City of Fort Worth, 314 S.W.2d 335 (Tex.Civ.App. Fort Worth 1958, no writ). There the City of Fort Worth by ordinance annexed certain lands, a portion of which had been previously annexed by the City of Saginaw. It was argued that the court should exclude that portion already annexed from the ordinance and approve the annexation of the remainder. This the court refused to do saying:

“Had Fort Worth known such territory had been annexed previously by Saginaw, it might or might not have annexed the remaining area, or it might or might not have annexed a part of the territory not included in the Town of Saginaw. That is a matter for the City Council of the City of Fort Worth to determine.”

The intent of the City Council to annex, and the request of the appellees to be annexed, is clearly conditioned upon the provisions that the inhabitants of the areas to be annexed would pay the limited ad valorem tax. Also in 1960, such ordinances could not have been adopted by appellant without the approval of the appellees. It is clear that the general purpose and intent of the appellant city in 1960 was to limit taxation of appellees’ properties and it is quite evident that appellees would not have petitioned to be annexed without the tax limitation provisions. In other words, the appellant city in 1960 would not have passed the annexation ordinances without the tax limitation provisions. The ordinances here, deleted of their unconstitutional provisions, certainly do not represent the purpose and the intent of the city council of appellant at the time of their adoption.

Appellant next contends the four ordinances have been validated by Articles 966h, 974d-9, 974d-10, 974d-ll, 974d-13, 974d-19, 974d-21 and 974d-22, Tex.Rev.Civ. Stat.Ann. In view of our holding above that the unconstitutional portions of the ordinances cannot be severed, we must now hold that the validating acts cannot be resorted to. See City of Grand Prairie v. Turner, 515 S.W.2d 19 (Tex.Civ.App. Dallas 1974, writ ref’d n. r. e.), wherein it is stated:

“We address ourselves first to the effect of the said validating act. Such an act has the effect of validating annexations of a city, even though such annexation proceedings were totally void ab initio, unless the annexation is contrary to the Constitution. City of Arlington v. City of Grand Prairie, 451 S.W.2d 284, 290 (Tex.Civ.App. Fort Worth 1970, writ ref’d n. r. e.). ...”

We next consider the question of whether or not the appellees’ cause of action has been barred by the two and four year statutes of limitations since the ordinances were enacted in 1960 and were not questioned until 1976 when this suit was filed. The defense of limitations was not presented to the court below at the combined hearing on the motions for summary judgment and could properly be considered .as waived by appellant. However, it will be stated that it is the opinion of this Court that no unconstitutional ordinance can become valid simply by going unquestioned for more than four years.

The judgment of the court before is affirmed.


text:
    HARTFORD CASUALTY INSURANCE COMPANY, Appellant, v. Barbara Smith PHILLIPS, Individually and as Personal Representative of the Estate of Jerry Glenn Phillips, Appellee.
    No. 8618.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 7, 1978.
    Rehearing Denied Dec. 5, 1978.
    John M. Skrhak, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.
    James E. Brown, Briggs & Brown, Dallas, for appellee.
   HUTCHINSON, Justice.

This case involves, the question of coverage under the uninsured motorist provisions of a policy of automobile liability insurance. Appellee is the named insured and seeks recovery of damages for bodily injuries sustained by her son, Jerry Glenn Phillips, as a result of an accident caused by an uninsured motorist. Trial was to a jury which found in response to a special issue that Jerry Glenn Phillips was a “resident of the same household” as Barbara Smith Phillips, appellee here. Appellant insurance company here contends that Jerry Glenn Phillips was not such a resident as a matter of law; that there is no evidence to support the jury finding; that there is insufficient evidence to support such finding; and that such finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. These points will be considered together.

At the outset it should be noted that the charge to the jury does not attempt to explain or instruct upon what constitutes a “resident of the same household” nor does it appear that a request for such was made and no complaint is now made in this Court of the trial court’s failure to give such an instruction. It should also be noted that at the time of his death Jerry Glenn Phillips was only fourteen years of age.

Appellee, Barbara Smith Phillips, the mother of Jerry Glenn Phillips, and Jerry Leon Phillips, the father of Jerry Glenn Phillips, were divorced in 1964 and custody was placed with appellee. However, in 1965, without a change in the custody order, Jerry Glenn, through an agreement by his parents, went to live with his father. It appears that appellee had only a one bedroom apartment and the father had a two story home with ample space for a separate bedroom for Jerry Glenn, such home being located within twelve blocks of the school that Jerry Glenn attended. Appellee’s apartment was not within the school district and the home address of Jerry Glenn for school purposes was that of his father. He had his meals and kept his clothes at his father’s house except when visiting his mother. He also kept extra clothes at his mother’s apartment. The father claimed Jerry Glenn as a dependent on his income tax returns. The school directory listed his address as that of his father. The medical, hospital, physician records and police report reflected that he resided with his father. His mother bought all of his clothing and provided his food when he was at her apartment. His father testified that he stayed with both him and his mother, appellee. The jury found as a fact that Jerry Glenn was a resident of his mother’s household and the court entered judgment for appel-lee mother.

In considering a “no evidence” point of error, this Court is required to consider only that evidence which supports the finding and then in its most favorable light. As to an “insufficient evidence” point, it is the duty of this Court to consider and weigh all of the evidence in the case and remand the cause only if it concludes that the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). At this point, however, it should first be noted that appellee was the legal custodian of the child, that the child was only fourteen years of age and that a person, particularly a child, can have more than one “residence” as distinguished from a “domicile.” Travelers Indemnity Company v. Mattox, 345 S.W.2d 290 (Tex.Civ.App.Texarkana 1961, writ ref’d); Travelers Insurance Company v. Mixon, 118 Ga.App. 31, 162 S.E.2d 830 (1968); Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (1965). As stated in the Mixon case, supra, a person may, and many do, have more than one residence. This seems particularly true of a minor child of divorced or estranged parents.

It must first be determined if there is “any” and secondly “sufficient” evidence to support the jury’s finding of “resident” as opposed to “only residence” or “resident exclusively” or “resident for a greater part of the time.” From a review of the entire record, we find there is sufficient evidence to support the jury finding. Appellant relies heavily upon the cases of Boon v. Premier Insurance Company, 519 S.W.2d 703 (Tex.Civ.App.Texarkana 1975, no writ); Travelers Indemnity Co. v. American Indemnity Co., 315 S.W.2d 677 (Tex.Civ.App. Fort Worth 1958, no writ); and Southern Farm Bureau Casualty Ins. Co. v. Kimball, 552 S.W.2d 207 (Tex.Civ.App.Waco 1977, writ ref’d n. r. e.). Each of these cases involved adults as distinguished from minor children. In Boon, supra, the husband and wife were separated, divorce suit filed, and there was positive and uncontradicted evidence of “no intent to resume living together.” In Travelers Indemnity Co. v. American Indemnity Co., supra, a grown divorced son and father of three children was killed in a motor vehicle accident while moving clothes to his father’s home and the court held him not to be a resident of his father’s household. In Southern Farm Bureau Casualty Ins. Co. v. Kimball, supra, a husband and wife were separated but were still seeing each other and reconsidering their separation and the court held that a jury finding of “resident of same household” was not against the great weight and preponderance of the evidence. We do not think these cases involving adults are necessarily determinative here. Therefore, appellant’s points of error Nos. 1 through 6 are overruled.

It is quite evident that a finding by the court or jury that Jerry Glenn was a “resident” of his father’s household would be adequately supported by the evidence. However, such a finding would not necessarily foreclose and prevent a finding that he was also a “resident” of his mother’s household. The mother, appellee, remained his legal custodian, contributed to his support, he regularly spent time with her in her apartment and kept some clothes there. Appellee as his legal custodian, had she so desired, could legally have required him to remain under her roof full time. The fact that for what apparently she and his father jointly felt would be for his best interest, would not within itself as a matter of law prevent him from being a “resident” of her household. From the entire record, we are unable to say that the complained of jury finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.

Appellant’s points of error 7 and 8 have been considered and no reversible error is shown.

The judgment of the trial court is affirmed.


text:
    The EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant, v. Virginia Maureen STUART, Appellee.
    No. 8638.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 14, 1978.
    Rehearing Denied Dec. 12, 1978.
    George E. Bowles, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellant.
    Otto B. Mullinax, Mullinax, Wells, Mauzy & Baab, Inc., Dallas, for appellee.
   HUTCHINSON, Justice.

Appellant here, defendant in the trial court, filed its motion for summary judgment and appellee here, plaintiff below, filed her motion for partial summary judgment. Appellee’s motion was granted and judgment entered after evidence was received relative to attorney fees.

The question presented for review is whether or not the insured under a group policy effectively made a change of his beneficiary.

The insured was a retired former employee of Oil Well Supply Company, a division of United States Steel Corporation, and, as such, was insured, both before and after his retirement, under group life insurance policy No. 9900 issued by appellant insurance company. After the death of his mother and on February 28, 1974, the insured named a sister-in-law, Pauline H. Hatfield, as the beneficiary under this policy. On April 2, 1974, the insured’s attorney transmitted to appellant a signed change of beneficiary form naming the appellee as the beneficiary. The cover letter stated that the insured did not know the policy number, but had advised that it arose out of Group Policy No. 17038 of Oil Well Supply Company. The Dallas office of appellant forwarded the letter of April 2, 1974, and the executed change of beneficiary form to its Bethpage, New York, office which received it on April 11, 1974. It was then, on April 18, 1974, forwarded by appellant’s New York office to the administrator of group policy No. 17038, in Niles, Ohio. This forwarding letter stated that the change of beneficiary form was acceptable and enclosed a “rider” to be dated as of its effective date of the change and then released to the insured for attachment to his certificate. On April 22, 1974, the administrator for group policy No. 17038 returned the change of beneficiary form to appellant stating that the insured was not covered under that policy. On May 3, 1974, appellant by letter informed the insured’s attorney (letter received on May 6, 1974) that the insured was not covered under group policy No. 17038 and suggested that the change of beneficiary form be forwarded to United States Steel Corporation (the name and address of the proper person with U.S. Steel was given). The insured died on May 23, 1974, and the change of beneficiary form and rider were never forwarded to United States Steel Corporation.

The policy benefits under group policy No. 9900 were paid to Pauline H. Hatfield by the appellant.

Admittedly the insured was covered under appellant’s group policy No. 9900 and-not under group policy No. or Certificate No. 17038. Policy No. 9900 pertaining to the change of beneficiary provides: “. . . Any employee may from time to time change the beneficiary, without the consent of any previously designated beneficiary, by a written notice signed by the employee and filed with the Employer.

Questions similar to the one presented here have been before our appellate courts numerous times and the general principles of law governing their solution have been clearly stated. The Texas Supreme Court in the case of Fidelity Union Life Insurance Company v. Methven, 162 Tex. 323, 346 S.W.2d 797, 800 (1961), in an opinion by then Chief Justice Calvert, stated:

“When policy requirements have not been waived by the insurer during the lifetime of the insured, right to the policy proceeds vests immediately in the beneficiary named in the policy and that right cannot be defeated by mere proof that it was the intention of the insured to change the beneficiary or of acts by the insured falling short of substantial compliance. Wright v. Wright, Tex.Civ.App., 44 S.W.2d 1019, writ refused; Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520; Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101; Tips v. Security Life & Accident Co., 144 Tex. 461, 191 S.W.2d 470.”

In Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520, 523 (1952), the court discussed the law applicable to a change of beneficiary and what was necessary to be done by the insured to effect a change. The court stated:

Wright v. Wright [Tex.Civ.App., 44 S.W.2d 1019] and, more importantly, Garabrant v. Burns [130 Tex. 518, 111 S.W.2d 1100], both of which are apparently approved in the Tips cases [Tips v. Security Life & Accident Co. (and Tips v. Franklin Life Insurance Co.), 144 Tex. 461, 191 S.W.2d 470], undoubtedly do hold in effect that the restrictions are also for the benefit of the last beneficiary named as such in the certificate or policy itself as against a party claiming that such designation was changed in his favor, while from this premise they proceed to the rule that, as between such opposing claimants, and even though the insurer takes no position on the restrictions, the purported change will be given effect only if the insured has ‘substantially complied’ with them, or ‘done all he reasonably could have done’ in that behalf.

This holding was specifically approved in Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101 (1953).

See also Hallett v. Ponder, 376 S.W.2d 797, 800 (Tex.Civ.App. Austin 1964, no writ), wherein the court approved quoting Scherer v. Wahlstrom, 318 S.W.2d 456, 458 (Tex.Civ.App. Fort Worth 1958, writ ref’d):

“. . . Although the right to name or substitute a beneficiary may be absolute in the insured, the method provided for making known to or advising the insurer of the purpose and wish of the insured becomes contractual and binding.” (Emphasis added.)

From the record before this Court, it cannot be said as a matter of law that the insured “substantially complied” with the change of beneficiary provision of his policy or that he “did all he reasonably could have done” to so comply.

Therefore, the cause is remanded to the court below for trial on the fact issues.


author: CORNELIUS, Chief Justice.

text:
    Kenneth A. WIRTZ et ux, Appellants, v. H. N. ORR et ux, Appellees.
    No. 8602.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 21, 1978.
    Rehearing Denied Dec. 28, 1978.

      Timothy E. Kelley, Dallas, for appellants.
    John M. Gillis, Gillis & Rogers, Dallas, for appellees.
   CORNELIUS, Chief Justice.

This is a suit by Orr against Wirtz to recover damages for breach of contract and for fraud allegedly perpetrated in an exchange of real estate. Trial was to a jury which found in Orr’s favor. Actual damages of $47,500.00 and punitive damages of $15,000.00 were awarded for fraud, together with an additional $31,832.27 for breach of contract.

Orr owned a 49-unit apartment complex in Irving, Texas, worth $350,000.00, but encumbered with a $168,000.00 mortgage. He needed cash to pay certain debts, including a $37,000.00 debt to his ex-wife who had been awarded an interest in the apartment complex, and he decided to sell the complex to raise the needed funds. Wirtz owned a 185 acre farm in Cass County, Missouri, worth $200,000.00, and he had listed it for sale with Spitz and Wallace who were Missouri real estate brokers. The farm was unencumbered except for a $9,547.16 silo mortgage. The parties ultimately made contact and agreed to exchange their properties. Pour written instruments figure prominently in the dispute — three different contracts for the exchange of the properties and one closing statement which Wirtz contends correctly sets out the understanding of the parties. The first contract was prepared by the realtors and was signed by the parties. .It was dated May 23, 1972, and provided in general language for the exchange of the properties. In addition, it contained these provisions:

“THIS CONTRACT IS DRAWN CONTINGENT ON H. N. ORR BEING ABLE TO GET A $75,000.00 LOAN ON THE FARM OR KENNETH WIRTZ CAR-RING (SIC) A LOAN UNTIL THE LOAN CAN BE OBTAINED.”
“THE DIFFERENCE IN EQUITIES WILL BE CARRIED BACK BUY (SIC) KENNETH WIRTZ, ON THE FARM.”

It was undisputed that Orr was depending on the proceeds of the loan to pay debts and furnish operating capital for the farm he was acquiring.

A major point of controversy is the question of difference in equity. Wirtz contended that he was to be paid $18,000.00 as the difference between the net value of his farm and the net value of the apartments, and at the closing he deducted that amount in addition to other amounts from the loan proceeds going to Orr. Orr contended that, although the original agreement was for Wirtz to get an $18,000.00 equity difference, that provision was abandoned during the progress of the negotiations because of some discoveries which adversely affected the value of Wirtz’ farm. A second contract was prepared by a Missouri attorney but was never signed. A third contract was prepared and signed by all parties on June 30, 1972. Neither the second nor the third contract mentioned any difference in equity, but the final agreement did contain these significant provisions: (1) Wirtz agreed to secure a loan on the farm for Orr in the sum of $55,000.00 “or more”, (2) Wirtz represented that he then had a commitment for a $48,552.84 loan, and (3) Wirtz agreed to pay the $9,547.16 silo mortgage, or if he failed to do so, Orr could pay the balance owing on it and such amount would “be deducted from the balance of original $75,000.00 on loan for the Cass County, Mo. property.”

In closing the transaction, Wirtz procured a loan for Orr’s benefit of only $47,500.00 rather than the $75,000.00 originally contemplated. Orr, however, executed a note to Wirtz, secured by a deed of trust on the Missouri farm, for $65,452.84 representing the $75,000.00 contemplated loan, less the $9,547.16 owed on the silo which Wirtz contended Orr agreed to assume, thus placing a $75,000.00 debt load on Orr. Prom the loan proceeds Orr claimed he was entitled to receive and use for the purpose of paying debts and to operate the farm, Wirtz withheld the $18,000.00 equity difference he contended he was to get, as well as another $4,285.11 due Orr which Wirtz chose to allow Orr as a credit on his note rather than to pay him in cash. The note and deed of trust on the farm which had been given to Wirtz by Orr was transferred by Wirtz to a third party. Orr, failing to get the necessary cash to pay his debts and to operate the farm, lost the farm by foreclosure to the new holder of the note and deed of trust, and subsequently brought suit against Wirtz for breach of contract and fraud.

It was undisputed that Wirtz did not have the loan commitment that he had represented he had and that a loan of only $47,500.00 had been secured for Orr’s benefit. In addition, the jury found that (1) Orr did not agree to pay Wirtz an $18,000.00 equity difference, (2) Orr did not agree to assume the silo mortgage of $9,547.16 without a compensatory consideration, (3) Orr did not agree to accept a credit for the $4,285.11 rather than cash, and (4) Orr was actionably defrauded by Wirtz.

In his first and third points of error Wirtz attacks the jury issues on fraud and punitive damages. The attack is two-pronged. First it is asserted that the issues should not have been submitted because the alleged fraudulent representations were nothing more than the contractual promises themselves, for the breach of which an action for breach of contract, but not for fraud, will lie. Long v. Humble Oil & Refining Co., 154 S.W.2d 925 (Tex.Civ.App. Galveston 1940, writ ref’d w. o. m.), is relied upon to support this assertion. That case ruled that in order for a suit for fraud arising out of a real estate transaction to be maintained under Article 4004 (now Tex. Bus. & Comm.Code Sec. 27.01) the alleged false promise must relate to something which is collateral, and not be the consideration of the very contract for the breach of which the plaintiff sues. But we do not believe Long is dispositive of this appeal for two reasons. First, Wirtz and Orr entered into the following stipulation prior to the submission of the case:

“The parties, by and through their attorneys, agree and stipulate that the proposed generalized Charge fairly and fully submits the ultimate Issues of this case and further agree that: (1) a ‘We do not’ answer to any sub part of Issue No. 1 will support a judgment, for Plaintiff in the amount indicated in the sub part so answered, and (2) a ‘He was’ answer to Issue No. 2 will support a judgment for the Plaintiff in the amount found in Issue No. 3, and (3) a ‘We do’ answer to Issue No. 4 will support a judgment for the Plaintiff in the amount found in Issue No. 5, all subject to Defendants’ objections on the existence and sufficiency of the evidence as hereinafter made. The parties waive all objections to the form or substance of the proposed Issues, Definitions and Instructions.
“Defendants expressly reserve their rights to object and do object to the Issues on the sole grounds that:
(a) there is no evidence to support the submission of said Issues;
(b) there is insufficient evidence to support the submission of said Issues;
(c) a finding to said Issues favorable to the Plaintiff would be so against the greater weight and preponderance of the evidence so as to be manifestly unjust.”

Having agreed that the case was fully and fairly submitted as to the ultimate issues and that an affirmative answer to the fraud and punitive damage issues would support a judgment for Orr in the amount found, Wirtz cannot now complain that Orr could recover only in breach of contract and not in fraud. See 53 Tex.Jur.2d, Stipulations, Sec. 3, p. 315; Sec. 17, p. 333. Compare Peavy-Moore Lumber Co. v. Spreckles, 153 S.W.2d 325 (Tex.Civ.App. Beaumont 1941, writ ref’d w. o. m.). Second, the evidence will support a conclusion that the promise of Wirtz to furnish Orr a loan in the agreed amount for the purpose of paying debts and operating the farm was collateral to, and an inducement for, the contract rather than the contractual consideration itself. The documents executed by the parties are far from clear and are subject to different constructions. The jury could reasonably have concluded that the basic contract between Wirtz and Orr was the exchange of their respective properties, and that the agreement to furnish the loan was a collateral promise made for the purpose of inducing Orr to enter into the contract. If that provision was made with the intention of not fulfilling it, it would constitute actionable fraud. Tex.Bus. & Comm.Code Sec. 27.-01. Punitive damages are recoverable in such cases. Tex.Bus. & Comm.Code Sec. .27.01(c) and Cliett v. King, 54 S.W.2d 168 (Tex.Civ.App. Waco 1932, writ dism’d).

The other attack on the jury issues of fraud and punitive damages urges that there was no evidence or insufficient evidence to support them and that the jury’s answers to them are against the great weight and preponderance of the evidence. This attack is based primarily on the contention that Wirtz personally made no representations to Orr and that there was no finding that the realtors were Wirtz’ agents as to any representations they made. We cannot agree. Wirtz admitted that Spitz and Wallace were his real estate agents and they were authorized to negotiate the trade for him. But there is ample evidence from which the jury could have found that Wirtz personally made representations which were false. The jury obviously believed that Wirtz represented that he would furnish Orr a $75,000.00 loan, and that such representation was made with the intention of not fulfilling it. Wirtz admitted that his representation that he had a commitment for a $48,452.84 loan was false, although he contends that he substantially complied with that representation when he furnished Orr with a loan of $47,500.00. Still, Orr accepted a debt load of $75,000.00 and in return got loan funds of only $47,500.00. The jury apparently believed that Wirtz never intended to honor his contract or the promise regarding the loan, and in fact intended to keep $18,000.00 for himself regardless of the agreement. Considering the record as a whole, we cannot say the jury’s answers to the fraud and punitive damage issues are without sufficient support in the evidence or are so against the great weight and preponderance of the evidence as to be manifestly unjust.

Wirtz insists that the answers are against the evidence because Orr signed a closing statement for the Texas part of the transaction which approved the disbursements as they were later actually made. But Orr testified that he did not understand the figures on the closing statement and that he thought they were just for tax purposes and that the true agreement would be reflected when the final closing statements were prepared in Missouri. The evidence was conflicting on the issue, of course, but it was for the jury to accept which evidence it would believe and to resolve the conflict accordingly. Certainly the closing statement is not so clear and unequivocal on its face that Orr’s signing of it would preclude his standing on the contract of June 30 as he understood it.

Point of error No. 2 argues that the jury’s answer to Special Issue No. 1 to the effect that Orr did not agree to pay an $18,000.00 equity difference, did not agree to assume the silo mortgage without compensatory consideration, and did not agree to accept credit for the $4,258.11 rather than cash, was against the great weight and preponderance of the evidence. We disagree.

Unquestionably the first agreement contemplated that Wirtz would receive $18,-000.00 for the difference in equities between the respective properties. Orr, however, testified that during the course of the negotiations and prior to the execution of the ultimate contract on June 30, three facts had been discovered which reduced the value of Wirtz’ farm and caused the parties to drop the $18,000.00 equity difference from the agreement. Those facts were that a crop of wheat which Orr was to receive was harvested prematurely by Wirtz, it developed that a long-term federal land bank loan which the parties contemplated was not available, and there was a shortage of 42 acres of highway frontage which had been represented to exist. The jury obviously chose to believe this evidence and we cannot say that its finding is against the great weight and preponderance of the evidence.

As concerns the silo mortgage, it is clear that Orr agreed to assume it if Wirtz did not pay it, but the contract provided in such a case that he was to deduct that amount from the $75,000.00 loan he was to receive from Wirtz. Instead, Wirtz neither paid the silo mortgage nor furnished the $75,-000.00 loan, but still sought to reduce the funds which were available to Orr by the amount of the silo mortgage. From the evidence in the record the jury could reasonably have believed that it was the intention of the parties that the money to be initially advanced to Orr by Wirtz' would not be reduced by the amount of the silo mortgage, and that was the effect of their answer.

As to the $4,285.11 credit, there is evidence that such an amount was due Orr in cash even after Wirtz had deducted the contested $18,000.00 and $9,547.16 for the equity difference and the silo mortgage. Instead of paying that amount in cash, Wirtz simply credited Orr with that amount at the end of the note he owed on the farm, a procedure to which Orr testified that he did not agree.

In points 5 and 8 it is contended that it was error for the court to admit into evidence certain information from Wirtz’ federal income tax return and to allow the jury to consider such evidence. In attempting to impeach Wirtz on his claim that he was to receive an $18,000.00 equity difference, Orr’s attorney sought to introduce Wirtz’ 1972 income tax return. The return was not available but it had been inspected in camera by the trial judge at a deposition which had been previously taken. At this trial, portions of that deposition, where the trial judge stated that his inspection of the 1972 tax return revealed that no $18,000.00 gain was reported by Wirtz, were read to the jury. Wirtz’ attorney had objected to such evidence when Orr’s attorney first questioned Wirtz about it and was overruled, but he did not re-urge his objection later when the portion of the deposition was read. Regardless of the nature of Wirtz’ objection, we believe the evidence was properly admitted. Any competent evidence not privileged is admissible if it logically tends to prove or disprove a material fact in issue. 23 Tex.Jur.2d, Evidence, Sec. 124, p. 178. And any statement or act of a litigant, not privileged, which is inconsistent with his position taken at the trial is admissible as an admission against interest. Ledisco Financial Services, Inc. v. Viracola, 533 S.W.2d 951 (Tex.Civ.App. Texarkana 1976, no writ); 2 McCormick & Ray, Texas Evidence, Sec. 1141, p. 29 (2d ed. 1956). Wirtz had claimed that he believed he was entitled to an $18,000.00 equity difference, and any act or statement on his part inconsistent with that position would be relevant to dispute that claim. The fact that there was some disagreement as to whether or not such a gain, even if claimed, was required to be reported on the income tax return would go to the weight rather than to the admissibility of such evidence.

Point of error 6 asserts that reversible error was committed when Orr’s attorney was allowed to introduce in evidence the testimony of the realtor Wallace which had been given at a previous trial of this cause. No predicate was laid for the introduction of the former testimony except that Wallace was not present and that he was a resident of Missouri. Such facts are not sufficient in themselves to authorize the receipt of previously given testimony. To permit the introduction of the previous testimony under such circumstances it must also be demonstrated that the proponent cannot reasonably procure the testimony of the absent witness by deposition or otherwise. Hall v. White, 525 S.W.2d 860 (Tex.1975); Stohn v. Bryant, 283 S.W.2d 299 (Tex.Civ.App. Dallas 1955, writ ref’d n. r. e.); Carter v. Irvine, 77 S.W.2d 247 (Tex.Civ.App. Waco 1934, no writ); Morris v. Davis, 292 S.W. 574 (Tex.Civ.App. Austin 1927, writ ref’d). However, we have concluded that the admission of Wallace’s former testimony was not such an error as was reasonably calculated to cause and probably did cause the rendition of an improper judgment, as is required for reversible error by Tex.R.Civ.P. 434. The testimony was largely cumulative of evidence already given by Wirtz and Orr. When the testimony was given Wallace was cross-examined thoroughly by Wirtz’ present attorney, and at this trial he read the cross-examination to the jury. Wallace’s testimony was of a non-continuing nature and there was no indication that it would have been any different on the second trial. And, although Wallace was a party at the first trial and was not a party at the second trial, he still would have been subject to examination by Orr’s counsel as an adverse witness had he been available, because he was admittedly Wirtz’ agent.

Lastly, Wirtz contends that the trial court abused his discretion in having certain portions of Orr’s testimony re-read to the jury. At one point in their deliberations, the jury advised the court, “We disagree as to the date Mr. Orr testified he became aware that the 42A was not included in the deal. We wish to have the court reporter search his notes and read to us the testimony of the witness Orr on this point.” The court searched the testimony and, advising the jury that there was no direct answer in Orr’s testimony to the question posed by the jury, selected portions of Orr’s testimony which appeared relevant to the question and had those re-read to the jury. In doing so, the court gave an elaborate instruction to the jury advising them that he made no representation concerning the relevancy of the testimony selected or that it was all the testimony on the issue under consideration. Wirtz urges that the court’s action constituted an impermissible comment on the evidence, as it indicated that the court thought the portions of the testimony selected to be re-read were relevant to the question posed by the jury.

We do not believe there was an abuse of discretion. Tex.R.Civ.P. 287 provides that in a case such as this the judge shall cause to be read to the jury “. . . that part of such witness’ testimony on the point in dispute; . . .’’By the very nature of the situation, the trial judge is required to exercise judgment and discretion in deciding what part of the testimony is relevant to the point in dispute, and his discretion is very broad. Aetna Casualty and Surety Company v. Scott, 423 S.W.2d 351 (Tex.Civ.App. Houston-14th Dist.1968, no writ). In the circumstances of this case, and considering the court’s careful instruction to the jury, we find there was no abuse of discretion in the procedure used.

All of the points of error are overruled and the judgment of the trial court is affirmed.