author: COLEMAN, Chief Justice.

text:
    Lolita McNeill MUHM, Appellant, v. Cleveland DAVIS et al., Appellees.
    No. 17345.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 29, 1979.
    Rehearing Denied April 26, 1979.

      Robert J. Kern, Houston, for appellant.
    Leland B. Kee, Angleton, for appellees.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   COLEMAN, Chief Justice.

Lolita McNeill Muhm, hereinafter referred to as plaintiff, brought suit against Cleveland Davis, Perry Reese McNeill, Jr., William Nelson McNeill and Vey Marguerite McNeill seeking to set aside a deed whereby Perry Reese McNeill conveyed his undivided one-half (⅛) interest in 300 acres of land in the T.B. Bell League of Brazoria County, Texas, to “Cleveland Davis, Trustee,” and a subsequent deed whereby “Cleveland Davis, Trustee” conveyed the same land to Lolita McNeill Muhm, Phillip McNeill Muhm, Perry Reese McNeill, Jr., William Nelson McNeill and Vey Marguerite McNeill, share and share alike. The plaintiff’s cause of action is based upon her contention that the deed from McNeill to Davis constituted an attempt to create an express parol trust and was invalid. She asserts that the second deed was executed for the purpose of carrying out the invalid trust and that both instruments should be set aside which would permit the title to the real property to pass to her and her brother, Perry Reese McNeill, Jr., in equal shares by virtue of the will of Perry Reese McNeill, which has been duly admitted to probate.

The defendant’s answer asserted that the property in question was deeded by Perry Reese McNeill to the defendant Davis as trustee pursuant to a previous agreement that when Vey Marguerite McNeill reached the age of eighteen years he, Cleveland Davis, would convey the said property to Lolita McNeill Muhm, Phillip McNeill Muhm, Perry Reese McNeill, Jr., William Nelson McNeill and Vey Marguerite McNeill, share and share alike. It was further alleged that Cleveland Davis as trustee did convey the land to the grantees designated by Perry Reese McNeill, and that both these deeds were recorded and that title of record is vested in the five grantees named in the deed executed by Cleveland Davis, trustee.

The plaintiff directed interrogatories to Cleveland Davis and Perry Reese McNeill, Jr., which were duly answered. Thereafter the plaintiff filed her motion for summary judgment. The defendants filed an answer to the motion for summary judgment and a cross motion for a summary judgment supported by the affidavit of Cleveland Davis and Elfreida McNeill, the wife of Perry Reese McNeill. After a hearing, the trial court denied the summary judgment requested by the plaintiff and granted a summary judgment requested by the defendants. This appeal resulted. The judgment will be affirmed.

The plaintiff contends that the trial court improperly considered the affidavits attached to the defendant’s motion for summary judgment because the affidavits violated the parol evidence rule, the Tex. Trust Act (Article 7425b-7, V.A.C.S.), and the Dead Man’s Statute (Article 3716, V.A.C.S.). Plaintiff further asserts that the affidavits contained conclusions and hearsay.

Perry Reese McNeill, the grantor in the deed to Cleveland Davis, trustee, died prior to the institution of this suit. Cleveland Davis is the executor of his will. The plaintiff asserts that by reason of Article 3716, supra, Davis is barred from testifying as to any transactions with the decedent. That Statute specifically authorizes a party to testify as to transactions with the decedent if he is called to testify thereto by the opposite party. The plaintiff directed interrogatories to Cleveland Davis requesting that he state the factual circumstances surrounding the creation of the February 28, 1974, instrument (the deed from Perry Reese McNeill to Cleveland Davis, trustee). This interrogatory was answered in detail by Cleveland Davis. By initiating this inquiry, the plaintiff has waived the Statute insofar as the particular transaction inquired about is concerned. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801 (1956); Fleming v. Baylor University Medical Center, 554 S.W.2d 263 (Tex.Civ.App.-Waco 1977, writ ref’d n.r.e.); Denbo v. Butler, 523 S.W.2d 458, 460 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

The Parol Evidence Rule is the rule which, upon the establishment of the existence of a writing intended as a completed memorial of a legal transaction, denies efficacy to any prior or contemporary expressions of the parties relating to the same subject matter as that to which a written memorial relates. This is a rule of law rather than a rule of evidence. McCormick & Ray, 2d ed., Texas Law of Evidence, Vol. 2, § 1601 (1956). The rule applies only to operative legal transactions and not to mere statements or recitals, such as a recital as to past consideration received. Lindsay v. Clayman, 151 Tex. 593, 254 S.W.2d 777 (1952).

The general rule that all parol agreements and negotiations touching the subject matter of a written contract between the parties, anterior to or contemporaneous with the execution of the instrument, are to be regarded as merged in the writing is subject to certain well established exceptions. The rule cannot be invoked to protect or enforce by judicial sanction such contracts as may be shown by extrinsic evidence to have been entered into contrary to public policy, to public morals, or other causes which, if expressed on their face, would stamp them with illegality. Donley v. Tindall, 32 Tex. 43 (Tex.1869). The courts of this state will neither aid in the enforcement of an illegal executory contract nor relieve from an illegal contract a party who has executed it. Morrison v. City of Ft. Worth, 138 Tex. 10, 155 S.W.2d 908 (1941).

The rule excluding extrinsic evidence as to a written instrument has no place in any inquiry where the court has before it an instrument not then effective. The rule that parol evidence is inadmissible to contradict or vary the terms of a written contract applies only to a written contract in force as a binding obligation. Parol evidence is always competent to show the nonexistence of a contract or the conditions upon which it may become effective. Bak er v. Baker, 143 Tex. 191, 183 S.W.2d 724 (1944).

Mrs. Muhm was entitled to introduce evidence concerning the circumstances and agreements leading to and forming the consideration for the execution of the deed from Perry Reese McNeill to Cleveland Davis, trustee. She has alleged that this- instrument was executed pursuant to an oral agreement establishing an express trust. The defendants were entitled to introduce evidence to rebut that offered by the plaintiff. Parol evidence tending to establish a constructive or a resulting trust in real estate is admissible. Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948); Purcell v. Snowden, 387 S.W.2d 138 (Tex.Civ.App.-Eastland 1965, writ ref’d n.r.e.).

Statements contained in the affidavit that are purely conclusionary, or that constitute hearsay, cannot be considered as summary judgment evidence. The fact that the affidavits may contain such statements, however, does not require the conclusion that factual statements which would be admissible in evidence found in the affidavits cannot be considered.

There is competent summary judgment evidence that Cleveland Davis was an attorney at law who had represented Perry Reese McNeill in various legal matters over a period of years prior to the date of the execution of the deed in question. In his affidavit, Cleveland Davis stated that Perry Reese McNeill and his wife, Elfreida Mel-lott McNeill, came to his office in the early part of the year 1974 and told him that he, McNeill, desired to divest himself of his interest in the 300 acre Phillip McNeill home tract. He further stated that he wanted his interest in said tract divided among his three grandchildren, William Nelson McNeill, Vey Marguerite McNeill and Phillip McNeill Muhm, and his two children, Lolita McNeill Muhm and Perry Reese McNeill, Jr., in equal portions. He, Davis, advised McNeill that since Vey Marguerite McNeill was a minor he should place the property in a trust for them, the trust to terminate when Vey became of age. McNeill then requested that Davis prepare a deed conveying the property to Davis as trustee. It was contemplated that a trust indenture should be prepared setting out in written form the instructions McNeill gave to Davis with reference to the property. Davis advised McNeill that the deed to Davis as trustee should not be filed in the deed records until the trust agreement was completed and executed.

On December 30, 1974, McNeill and his wife again appeared at Davis’ office to inquire whether the trust agreement was completed and executed. He stated that he wanted the property taken out of his name prior to the end of the year 1974. The trust indenture was not complete so Davis had a deed prepared whereby he, as trustee, conveyed the land in question to McNeill’s children and grandchildren in equal undivided interests as directed by Perry Reese McNeill. This deed was executed and acknowledged by Davis in the presence of McNeill and his wife and with their knowledge and consent entrusted to Davis’ secretary with instructions to retain the deed until a trust indenture was prepared or the minor child attained her majority. The deed from McNeill to Davis was then recorded. After Vey McNeill reached the age of eighteen years, the deed from Davis, Trustee, to the children and grandchildren of Perry Reese McNeill was recorded. Substantially the same information with reference to the transactions between Mr. Davis and Mr. McNeill are found in the affidavit of Elfreida McNeill.

No affidavits relating the facts and circumstances surrounding this transaction were filed by the plaintiff. She did propound interrogatories to Davis which were answered and are found in the transcript. She asserts that answers to some of these interrogatories establish that the deed from McNeill to Davis was executed without consideration and that the land transferred to Davis was not intended as a gift to Davis. It is her contention that these facts establish that the deed was a nullity and should have been set aside.

In a summary judgment proceeding, the trial court will consider the entire record in order to determine whether or not issues of fact are present. The mov-ant must demonstrate by the summary judgment record, that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Houston Crane Rentals, Inc., v. City of Houston, 454 S.W.2d 216 (Tex.Civ.App.-Houston [1st Dist.] 1970, writ ref. n.r.e.). When both parties move for summary judgment, each has the burden of establishing clearly his right to summary judgment, and neither can prevail because of the other’s failure to discharge his burden. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954).

It is established by the summary judgment evidence that the deed from McNeill to Davis and the deed from Davis to McNeill’s children and grandchildren were executed pursuant to an oral agreement establishing an express trust consisting of real property which was invalid by reason of the Texas Trust Act. Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948). The rule that such an express trust cannot be enforced is subject to an exception in cases where at the time of the transfer the transferee was in a confidential relationship to the transferor, and the conveyance was made in reliance on an oral promise to reconvey. Under these circumstances, if the transferee refused to reconvey, a constructive trust would arise in favor of the transferor because of the breach of the confidential relationship. Mills v. Gray, supra.

Where a confidential relationship exists between the grantor and the grantee and the conveyance is induced by the grantee’s oral promise to convey to a third party, on refusal of the grantee to convey to such third party, the court will decree a constructive trust in favor of the intended beneficiary of the oral trust. Restatement of Restitution § 183 (1937); Restatement (Second) of Trust § 45 (1965); Bogert, Trusts & Trustees 2d ed., § 496 (1978); Purcell v. Snowden, supra at 142; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960).

Mrs. Muhm is suing as a devisee under the will of Perry Reese McNeill and must recover in his right, if at all. The summary judgment evidence does not demonstrate that a trust, constructive or resulting, in favor of Perry Reese McNeill arose out of the conveyance from McNeill to Davis. There is neither pleading nor evidence to raise issues of fraud, duress, or mutual mistake. The trial court did not err in denying Mrs. Muhm’s motion for summary judgment.

The rule is thoroughly settled “that a trust in land declared by parol only, although wholly unenforceable against the trustee, has yet enough of vitality, so that, if voluntarily executed by the trustee at any time, it will become validated as of the date of the original oral agreement . .” Blaha v. Borgman, 142 Wis. 43, 46, 124 N.W. 1047, 1048 (1910).

The seventh section of the English Statute of Frauds which was enacted in many American states commonly provides that trusts of land shall be “void and of no effect”, unless manifested or proved by a writing. In these states the word “void” has been held to mean “unenforceable against the objection of the trustee.” In Bogert, Trusts and Trustees 2d ed., § 69, the author says that the trustee in an oral trust is not forbidden to carry out his trust. He has a moral obligation to carry out his trust duties, and the performance of the oral trust is a legal and commendable act.

This approach to the problem has been adopted in the Restatement of the Law of Trusts, where the Rule is stated in these words:

Where an oral trust of an interest in land is created inter vivos, the trustee can properly perform the trust if he has not transferred the interest, although he cannot be compelled to do so.

Restatement (Second) of Trusts, supra § 43 at 112; See McAdams v. Ogletree, 348 S.W.2d 75 (Tex.Civ.App.-Beaumont 1961, writ ref. n.r.e.).

Mrs. Muhm insists that an issue of fact exists as to whether Perry Reese McNeill intended to create a trust by executing the deed to Cleveland Davis for the reason that after he signed the deed he executed a will in which he left “land which is situated in the T.B. Bell survey, Abstract 41” to his son Perry Reese McNeill and Mrs. Muhm. The deed conveyed “300 acres of land, more or less, in the T.B. Bell League, Abstract 41, Brazoria County, Texas.” The will was drawn by Cleveland Davis, and after it was executed, the deed whereby Cleveland Davis conveyed the land to the children and grandchildren of McNeill was prepared and signed in McNeill’s presence pursuant to his direction. There is nothing in the summary judgment evidence to show that the 300 acre tract of land was the only land owned by McNeill in the T.B. Bell League.

Mrs. Muhm asserts that the failure to pay a gift tax in connection with the conveyance of the 300 acre tract of land to Davis is also a circumstance sufficient to raise a fact issue preventing the granting of a summary judgment. Neither circumstance is sufficient to raise more than a surmise or speculation that McNeill intended to retain beneficial title to the land. No fact issue preventing the granting of a summary judgment was raised by this evidence.

The summary judgment evidence presents no issues of material fact and establishes as a matter of law an executed parol express trust. The trial court did not err in granting summary judgment that the plaintiff, Lolita McNeill Muhm, take nothing against the defendants, Cleveland Davis, Perry Reese McNeill, Jr., William Nelson McNeill and Vey Marguerite McNeill.

The judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Jack HAESLY et al., Appellants, v. Bernard WHITTEN, Appellee.
    No. 5984.
    Court of Civil Appeals of Texas, Waco.
    March 29, 1979.

      Gary Gilliland, Dallas, for appellants.
    H. E. “Bill” Tarpley, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from an order of the trial court, sustaining an asserted plea in abatement and dismissing plaintiffs’ suit.

Plaintiffs Haesly sued defendant Whit-ten, an attorney, alleging that plaintiffs were former owners of fractional interests in certain described lots in the City of Dallas; that Musgrove Company, Inc., owner of another fractional interest in such property brought a partition suit against them; that they retained defendant Whitten to represent their interest in such lawsuit; that plaintiffs instructed defendant Whit-ten to do whatever was necessary to preserve ownership in plaintiffs; that defendant Whitten did not take any steps to preserve the ownership interests of plaintiffs in the real estate, but instead did nothing to protect or defend plaintiffs’ interests, allowed title to be taken from plaintiffs without resisting, and further suffered the property to be sold for a clearly insufficient price; to plaintiffs’ damage; and that but for Whitten’s negligence in failing to perform his duty as attorney for plaintiffs, they would not have suffered damages as alleged.

Defendant Whitten filed what he denominated as a “Plea in Abatement”.

Such “plea in abatement” asserted the cause should be “abated and dismissed” for the reasons: 1) that same is res judicata of Cause 74—1959-1 Musgrove Company v. Doran J. Haesly, et al, the partition case in which Whitten was engaged to represent plaintiffs herein; that the property was sold by order of the court; was sold for a fair price; and that Whitten was unable in any manner to resist the sale; 2) that the sale occurred nearly three years ago and plaintiffs “are guilty of laches and have thereby lost any claim they might have”; 3) that plaintiffs have not paid defendant for his services for which reason there was no consideration for the alleged employment; 4) that after the sale of the property plaintiffs were given checks for their proportionate share of the property which they cashed.

Subject to such “plea in abatement” defendant Whitten filed his original answer containing a number of special exceptions to plaintiffs’ petition and a general denial.

Plaintiffs filed their First Supplemental Petition consisting of special exceptions and objections to defendant’s plea in abatement.

The trial court heard argument on the plea in abatement, and thereafter entered order sustaining same and dismissing plaintiffs’ action.

Plaintiffs appeal on 3 points asserting:
1) The trial court “erred in sustaining Whitten’s ‘Plea in Abatement’ and dismissing Haesly’s cause because the ‘Plea in Abatement’ raised only affirmative defensive issues of res judicata, laches, failure of consideration, and accord and satisfaction; 2) there were questions of fact raised by the pleadings which could not be resolved merely by reference to the pleadings and the law; 3) there was utterly no evidence to support a finding that Whitten’s ‘Plea in Abatement’ ought to be sustained”.

There was no evidence taken in the case, although the trial court took judicial notice of the prior case, i. e., Musgrove Company v. Haesly, et al. The Petition, Answers, Order Appointing Receiver, Receiver’s Report of Sale, and Order Confirming Sale, in such case have been filed in this Court as a supplemental transcript without objection.

The case at bar is a tort ease, an attorney malpractice case, which alleges that the defendant failed to carry out specific instructions of the plaintiffs.

Defendant’s asserted pleas in abatement; 1) res judicata of the decree in the prior partition suit; 2) laches; 3) failure of consideration; and 4) accord and satisfaction; have been misnamed by defendant, and are in fact affirmative defenses, i. e., matters constituting an avoidance, or bar to the plaintiffs’ petition. Rule 94 TRCP. As defenses “in bar” they are not the proper subject matter of disposition on preliminary hearing before the court like true pleas in abatement. Kelley v. Bluff Creek Oil Co., S.Ct., 158 Tex. 180, 309 S.W.2d 208.

Further, Res Judicata is the doctrine that a right, question or fact, put in issue and determined by a court of competent jurisdiction cannot be further litigated in a subsequent suit between the same parties or their privies. Davis v. First National Bank of Waco, S.Ct., 139 Tex. 36, 161 S.W.2d 467; Mitchell v. Carter, CCA (Waco) NWH, 545 S.W.2d 869. Musgrove v. Haesly was between different parties, and did not address the complaints in tort plaintiffs allege against defendant in the case at bar.

And bar of plaintiffs’ action by lach-es is a fact question, and the burden of proof to establish same is on the defendant. Crow v. Crow, CCA (Waco) NWH, 485 S.W.2d 928; Terrell Hills Baptist Church v. Pawel, CCA (Austin) NWH, 286 S.W.2d 204; Arrington v. Cleveland, CCA (Fort Worth) Er.Ref., 242 S.W.2d 400.

Failure of consideration is not a proper defense in a tort claim; and the acceptance by plaintiffs of part of the proceeds of the sale of the property was an accord and satisfaction with Musgrove in the partition suit, and not with defendant Whitten in this tort action.

Plaintiffs’ points are sustained.

REVERSED and REMANDED.


author: McCLOUD, Chief Justice.

text:
    Palmer MILLS, Appellant, v. STINGER BOATS, INC., Appellee.
    No. 5247.
    Court of Civil Appeals of Texas, Eastland.
    March 29, 1979.
    Rehearing Denied April 26, 1979.

      J. Kathryn Lindauer, Weil, Craig & Fischman, Dallas, for appellant.
    Howard C. Rubin, Jordan, Rubin & Pace, Dallas, for appellee.
   McCLOUD, Chief Justice.

Palmer Mills, plaintiff, a resident of Florida, sued defendant, Stinger Boats, Inc., a Tennessee corporation, not authorized to do business in Texas, on a sworn account. Citation was served upon A1 Collins, who the parties stipulated was either the president or a vice-president of defendant at time of service, while Collins was in Dallas attending a boat show. Defendant filed a special appearance challenging jurisdiction. The court found that it had no jurisdiction of defendant and dismissed plaintiff’s suit. Plaintiff has appealed. We affirm.

The court found that Collins was the person in charge of defendant’s business for the week of the “Boat Show in Dallas, Texas”; that the transaction “out of which plaintiff’s suit arose was for sales in the southeastern United States and not in Texas”; and that defendant “has done business in Texas unrelated to the transactions upon which this suit is based.”

In its conclusions of law, the court concluded that since the transaction upon which the suit was based did not arise from or was not connected with defendant’s actions in Texas, the plaintiff failed to meet the requirements of O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966). The court also concluded that plaintiff’s pleadings failed to contain sufficient allegations to invoke proper service under Tex.Rev.Civ. Stat.Ann. art. 2031b (1964).

We will not reach the “due process” issue discussed in O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966) because plaintiff failed to properly serve the defendant.

Plaintiff failed to allege the jurisdictional requirements of Article 2031b. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Gathers v. Walpace Co., Inc., 544 S.W.2d 169 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.); Alpha Guard, Inc. v. Callahan Chemical Company, 568 S.W.2d 448 (Tex.Civ.App.—Austin 1978, no writ). Plaintiff makes no contention that he complied with Article 2031b, but argues that he properly served defendant under Tex.Rev.Civ.Stat.Ann. art. 2029 (1964) which provides:

In suits against any incorporated company or joint stock association, the citation may be served on the President, Vice President, Secretary, Cashier, Assistant Cashier, or Treasurer of such company or association, or upon the local agent of such company or association in the county where the suit is brought, or by leaving a copy of the same at the principal office of the company during office hours. If neither the President, Vice President, Secretary, Assistant Secretary, Cashier, Assistant Cashier, or Treasurer reside in the county in which suit is brought, and such company or association has no agent in the county, then the citation may be served upon any agent representing such company, corporation, or association in the State.

Defendant argues that Article 2029 does not apply to foreign corporations that are not authorized to do business in Texas. We agree.

Plaintiff acknowledges that Tex.Bus. Corp.Act art. 2.11 (1956), a specific statute, replaces Article 2029 as to domestic corporations, Ponca Wholesale Mercantile Company v. Alley, 378 S.W.2d 129 (Tex.Civ.App.—Amarillo 1964, writ ref’d n. r. e.), but he argues that by the express language in Tex.Bus.Corp.Act art. 8.10 (1956), service of process on a foreign corporation may be made under Article 2029. Plaintiff relies upon the 1973 amendment of Article 8.10 which provides:

D. Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a foreign corporation in any other manner now or hereafter permitted by law.

Plaintiff contends this amendment makes it clear that there is no exclusive method of serving process on a foreign corporation. Article 8.10 deals with service of process on foreign corporations authorized to transact business in Texas. The defendant, Stinger Boats, Inc., was not authorized to transact business in Texas.

The bar committee comment following the amendment states:

The 1973 amendment adding Section D makes clear that Art. 8.10 is not the exclusive method for obtaining service of process on foreign corporations which have a certificate of authority to transact business within the State, and constitutes a legislative overruling of judicial holdings that Art. 8.10 preempts other statutes on the subject. In connection with the adoption of Section D, Arts. 2031, 2031-1 and 2031a of the Vernon’s Ann. Civ.St. (1964) were repealed because their provisions overlapped and sometimes conflicted with Art. 8.10 and with Art. 2031b, the long-arm statute dealing with service of process on foreign corporations and other business associations engaging in activities within the State. Accordingly, Art. 2031b is the statute under which service of process should be obtained against a foreign corporation which has not received a certificate of authority to transact business within the State and is also a proper statute, in addition to Art. 8.10, for securing service of process against a foreign corporation which has qualified under the Act to transact business within the State. (Emphasis added)

Professor Lebowitz in 28 Sw.L.J. page 850 states:

there are now but three statutes on service of process that apply to general business or non-profit foreign corporations; TBCA article 8.10 and Non-Profit Corporation Act article 8.09 for qualified foreign corporations, and article 2031b, the long-arm statute, for use against either foreign corporations that should have qualified to transact business and should have designated a registered agent but have not or those whose activities within the state do not require qualification but have nevertheless transacted some business in Texas. Lebowitz, Recent Developments In Texas Corporation Law— Part II, 28 Sw.L.J. 823 (1974).

Plaintiff failed to comply with the requirements of Article 2031b, which specifically controls the service of process on a foreign corporation that is not authorized to transact business in Texas. Article 2029 is not applicable.

Judgment of the trial court is affirmed.


text:
    Bob G. BURKHART et al., Appellants, v. Jerry E. MOORE, Appellee.
    No. 5259.
    Court of Civil Appeals of Texas, Eastland.
    March 29, 1979.
    Rehearing Denied April 26, 1979.

      Merril E. Nunn, Asst. City Atty., Garland, for appellants.
    Fred M. Baron, Dallas, for appellee.
    Before McCLOUD, C. J., and RALEIGH BROWN and DICKENSON, JJ.
   McCLOUD, Chief Justice.

The issue in this case is whether a classified civil service position was abolished in good faith.

On September 2, 1977, plaintiff, Jerry E. Moore, filed suit seeking a writ of mandamus directing the defendants, Bob G. Burk-hart, Garland Firemen’s and Policemen’s Civil Service Commission, and the City of Garland, to appoint and certify him to the position and pay of a “Battalion Chief” in the City of Garland Fire Department. The defendants answered that the City Council of the City of Garland on September 6, 1977, enacted Ordinance No. 2855 which abolished the position plaintiff sought. Following a nonjury trial, the court rendered judgment issuing a writ of mandamus directing defendants to immediately promote, appoint, and certify plaintiff to the position and pay of a Battalion Chief in the Garland Fire Department. The judgment recites that Ordinance No. 2855 was not enacted in “good faith” and is void. Defendants have appealed. We affirm.

In 1976, the City initiated a study to implement emergency medical services by the Garland Fire Department. The Fire Chief, Bob G. Burkhart, and Donald E. Paschal, Jr., the Community Services Administrator for the City, undertook the study which was extensive and took several months. An emergency medical services system was formulated by Burkhart and Paschal with the assistance of Captain Gordon Smythe, who had been assigned by Chief Burkhart to help with the project from the inception. On April 1, 1977, the emergency medical services program was implemented by the City, and on April 5, 1977, the City passed Ordinance No. 2785, which created twenty-two additional positions in the fire department to handle the emergency medical services. One of the positions created was “Battalion Chief,” which is one step above “Captain.” Paschal and Burkhart testified that the preliminary study indicated that a Battalion Chief should supervise the unit.

On May 3, 1977, plaintiff, who was at that time a Captain, along with other persons, including Captain Gordon Smythe, who had supervised the emergency medical services unit since its inception, took an examination for the newly created Battalion Chief position. Plaintiff made the top grade on the examination which required that his name be placed first on the promotion list. Plaintiff was not promoted to the Battalion Chief position created by Ordinance No. 2785, and Captain Smythe continued to supervise the emergency medical services unit. On September 6, 1977, the City Council passed Ordinance No. 2855, which abolished the Battalion Chief position and created a new Captain position. The abolishing ordinance stated that it had been determined by “experience” that the additional position of Battalion Chief was not necessary to supervise the “Emergency Medical Services,” and that the supervising function could be fulfilled by the position of “Captain.”

No person was promoted to the position of Battalion Chief within 90 days from the date the ordinance was passed creating the new classified position. The parties agree that plaintiff, who made the highest grade on the examination, was, as a matter of law, entitled to the position before the abolishing ordinance was passed on September 6, 1977. Tex.Rev.Civ.Stat.Ann., art. 1269m § 8 (1963).

The City Council of the City of Garland had the right to abolish the Battalion Chief’s position, to which plaintiff was entitled, provided it did so in good faith. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960). In Wallace, the court held there could be a judicial inquiry as to whether a city council’s action was a “good faith” action. The court concluded that the question in Texas would be “one of law” for the judge’s decision. The court said:

McQuillin recognizes the general rule that, “(W)here a municipal corporation under charter or legislative act has power to create by ordinance an office, it also has the power to abolish it.” McQuillin, Municipal Corporations § 12.118. However, when civil service and veterans preference laws are involved, the action of the city council must be taken in good faith to effect an economy in operations or a betterment of municipal service as “There is a real and fundamental distinction between the lawful abolition of an unnecessary position and the discharge of a faithful employee in violation of the rights secured to him by statute; and the latter action can neither be concealed nor protected by a pretense that it was in the exercise of the former right.” McQuillin § 12.119 quoting from Garvey v. City of Lowell, 199 Mass. 47, 85 N.E. 182 and Murphy v. Justices of Municipal Court, 228 Mass. 12, 116 N.E. 969. If the attempt to abolish an office be merely col-orable and the real objective be to legislate one out of office or a civil service position, the courts are not bound by the apparent form of the action but will disregard the pretense and be governed by the substance of the action. McQuillin § 12.121; Smith v. Sells, 156 Tenn. 539, 3 S.W.2d 660. Tenure of office and civil service laws cannot be evaded by a sham or pretended abolishment of position.

The court added:

We do not wish to be understood as holding that the secret motives of members of the City Council are matters for judicial inquiry. If an action be proper as an economy move, it would not be rendered otherwise, because a member of a city council derived some malicious pleasure because a particular individual lost his job. Rossi v. Mayor and Council of Borough of Moonachie, 127 N.J.L. 374, 22 A.2d 564. The authorities however do support the proposition that an action of a city legislative body abolishing civil service positions may be judicially examined in the light of its surrounding circumstances, the prior and subsequent actions of such legislative body and the public policy represented by the civil service law in order to determine the good faith of the questioned action.

The court recognized that “good faith” would exist, as a matter of law, upon a proper showing that the civil service position was abolished because of improved economy or increased efficiency. The court further noted that if the evidence showed that the action was a proper economy or efficiency move, then the secret motives of the members of the City Council would be of no consequence. It is clear from Wallace, and the authorities discussed in 87 A.L.R.3d 1165 that a crucial inquiry in determining good faith, is whether the duties of the abolished position were assigned to another person or position.

The defendants were required to plead and prove good faith in abolishing the Battalion Chief position. The recital in the preamble of the abolishing ordinance does not meet that burden. The court in Kiel v. City of Houston, 558 S.W.2d 69 (Tex.Civ.App.—Houston (14th Dist.) 1977, writ ref’d n. r. e.) said:

Such a self-serving declaration does not meet the City’s burden. The supreme court’s decision in Wallace indicates that the City must produce pertinent facts relating to the economy and efficiency of the change. City of San Antonio v. Wallace, 338 S.W.2d at 158. Even if the City had produced live witnesses to state that the action was taken for proper purposes, it would not have been sufficient; the City should have proved that the jobs were unnecessary and shown why it would be more satisfactory to the public if they were abolished. Welch v. Overton, 416 S.W.2d 879 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.).

The good faith requirement is discussed in 15 Am.Jur.2d, Civil Service § 72 as follows:

The civil service laws cannot be evaded by a sham or pretended abolition, as where the incumbent of an office is ousted, a colorable change made in the title of the office, and another person appointed to perform substantially the same duties. Thus, the authorities will not be permitted, under the pretense of abolishing a civil service office, to discharge an employee and immediately create another office with substantially the same duties, appointing a different individual to fill it.

Paschal testified that it did save the City some money to keep the supervisory position as a “Captain,” but he said that the saving was “not much.” There is no real contention made that the abolition was an economy move. The defendants’ position is principally that the supervisory function can be fulfilled by a “Captain” and the created position of “Battalion Chief” is not necessary. Paschal testified that he could not say the emergency medical services unit functioned “better” under a Captain. He stated only that in his opinion it functioned “equally as good” under a Captain, and they did not see “how it could have been improved by changing the rank” to Battalion Chief. The record shows that the members of the City Council, when they voted to abolish the position, were furnished with a memorandum from Paschal, which provided:

The attached Ordinance reduces by one the number of Battalion Chiefs authorized in the Fire Department and increases by one the number of Captains. The referenced Battalion Chief’s position was originally created as the supervisory position over the Emergency Medical Services Division. When initially formed the EMS Division was headed by a Fire Captain, who has continued to supervise the division up to the present. As a result of a very smooth program implementation and continued operational effectiveness, it is recommended that the supervisory rank of Captain be retained for the division at this time.

There is no evidence that the members of the City Council considered any recommendations or information other than the Paschal memorandum.

The evidence shows that Chief Burkhart and Paschal felt strongly that Captain Smythe was the best qualified person since he had the most experience. If plaintiff were promoted to Battalion Chief, there would be no place in the emergency medical services unit for Captain Smythe. Also, there is evidence that between May 3, 1977, and September 6, 1977, the plaintiff, as president of the Garland Firefighter’s Association, testified adversely to the City and Chief Burkhart in a “Federal” lawsuit. Plaintiff stated that since the date he testified adversely, the Chief has not “talked” to him.

The trial court could have properly concluded from the evidence the City created a Captain’s position which consisted of duties identical to those which were to be performed by the abolished Battalion Chief. After the Battalion Chief’s position was abolished, another officer, Captain Smythe, has performed the duties which were to be performed by the Battalion Chief. The testimony of Paschal and Chief Burkhart, who were interested witnesses, was not conclusive. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1985).

The record supports the trial court’s conclusion that the abolishing ordinance was not enacted in good faith. We have considered all points of error and all are overruled. The judgment of the trial court is affirmed.


author: RALEIGH BROWN, Justice.

text:
    FREEMAN OLDSMOBILE MAZDA CO., Appellant, v. Jess F. PINSON, Appellee.
    No. 5266.
    Court of Civil Appeals of Texas, Eastland.
    March 29, 1979.
    Rehearing Denied April 26, 1979.
    Stephen R. Bishop and Roy J. True, True & Zable, Dallas, for appellant.
    V. Wayne Pope, Dallas, for appellee.
    Before McCLOUD, C. J., DICKENSON and BROWN, JJ.
   RALEIGH BROWN, Justice.

This is a Deceptive Trade Practices and Consumer Protection Act case. Jess F. Pin-son sued Freeman Oldsmobile Mazda Co., seeking damages, attorney’s fees and costs allegedly sustained by him as a result of violations of the act transpiring from the purchase of a new 1976 Oldsmobile. After a nonjury trial, judgment was entered granting Pinson rescission of the contract and directing Freeman Oldsmobile to pay Pinson the purchase price. Upon such payment, Pinson was to return the automobile to defendant. Freeman Oldsmobile appeals. We reverse and render.

Pinson purchased a new Oldsmobile Star-fire automobile from Freeman Oldsmobile on or about July 29, 1976, for a purchase price of $5,720.33. A few days after the purchase, Pinson noticed approximately four small indentations on the hood of the automobile and noticed some paint over-spray on the left rear quarter panel of the automobile. He notified Freeman Oldsmobile of his discovery, and Freeman offered to correct the defects without charge to Pinson under the new car warranty. The cost to repair the warranty defects was estimated to be from $75 to $100. Pinson refused to allow Freeman Oldsmobile to correct the defects and instituted the instant case. At the conclusion of his case, Pinson acknowledged his claim for treble damages was not well taken and advised the court he was not pursuing such claim, but was relying on his claim for rescission of the transaction.

The court in its findings of fact and conclusions of law stated:

That the Plaintiff herein purchased a 1976 Oldsmobile Starfire automobile for the sum of $5,720.33; that at the time of delivery of the vehicle in question, the vehicle was not as represented in that it contained certain defects, the nature of which the Defendant either knew or should have known in the exercise of ordinary care and failed to disclose to the Plaintiff upon delivery of the vehicle; that shortly thereafter, the Plaintiff discovered said defects and tendered or offered to tender the vehicle back to the Defendant in exchange for the return of the purchase price; that the tender was declined; that the transaction falls within the purvue of the Texas Deceptive Trade Practices — Consumer Protection Act, Texas Business and Commerce Code, as a prohibited transaction; that treble damages would not apply because the Plaintiff’s damages lie under Sec. 17.-50(b)(3) but that attorney’s fees to the Plaintiff would apply, that the attorney’s fees were agreed and stipulated by counsel for both sides as to the amount but not as to the applicability.

The primary thrust of appellant’s appeal is that there is no evidence of the essential elements necessary to support a judgment for rescission. We agree.

Our first question is whether it is necessary to plead and prove grounds for rescission under the Deceptive Trade Act to be entitled to such relief.

Prior to the adoption of the Texas Business & Commerce Code in 1967, the law concerning the right to rescission was stated in Mathis Equipment Company v. Rosson, 386 S.W.2d 854 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.) to be:

It is well settled in Texas that in the absence of fraud or an agreement allowing the property to be returned to the seller, rescission for breach of warranty can be availed of by the purchaser only where the identity of the article is involved and it proves to be something other than that which was purchased or if such article is wholly worthless for the purpose for which it was sold. Wright v. Davenport, 44 Tex. 164, 167 (1875); Dillard v. Clutter, 145 S.W.2d 632 (Tex.Civ.App., 1940, writ ref.); Bedner v. Dunigan Tool & Supply Company, 142 Tex. 663, 180 S.W.2d 919 (1944); 77 C.J.S. Sales § 100, pages 796-797; 37A Tex.Jur., Sales § 352, page 731.

See also Bill McDavid Oldsmobile, Inc. v. Mulcahy, 533 S.W.2d 160 (Tex.Civ.App.—Houston (1st Dist.) 1976, no writ); Villarreal v. Boggus Motor Company, 471 S.W.2d 615 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.).

In Dillard v. Clutter, 145 S.W.2d 632 (Tex.Civ.App.—Amarillo 1940, writ ref’d), the court said:

There is no general rule of law better established in this State than that, in the absence of fraud or an express agreement to take back an article or property sold under a warranty, the vendee cannot return the article and recover back all of the purchase money or that part of it which he has paid . . . (citing authorities).
The only condition under which a buyer has the right of rescission by reason of the warranty of the seller, in the absence of fraud or an agreement for rescission, is where the article or property purchased proves wholly unsuitable for the use or purpose to which it is known by the seller that the buyer intends to place it, or the identity of the article and it proves to be something other than that which was purchased. .

There is no dispute, in the instant case, but that Pinson accepted and used the 1976 Oldsmobile Starfire and that such automobile was the specific article involved in the contract of sale between the parties. Title to the automobile passed to Pinson and the contract became executed. There was no evidence of an agreement allowing the property to be returned to the seller.

The Texas Business & Commerce Code, V.T.C.A. (1968), which includes the Deceptive Trade Act, provides in part:

Section 2.608.
(a) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him .
Section 2.711.
(a) Where . . . the buyer rightfully rejects or justifiably revokes accept-anee then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (Section 2.612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid . . . (emphasis ours)

Under Section 2.711, supra, Pinson’s right to tender back the Oldsmobile and demand return of the purchase price depended upon whether or not he justifiably revoked acceptance of the automobile. Section 2.608 authorized Pinson to revoke his acceptance of the automobile if its nonconformity substantially impaired its value to him where he had accepted it without discovery of such nonconformity because of the difficulty of discovery before acceptance.

Section 17.50(b)(3) relied on by the trial court provides that the consumer must prevail in order to obtain a court order restoring his money. This does not eliminate the requirements as set forth in Section 2.711 and Section 2.608 for a plaintiff to be entitled to rescission.

We conclude that to be entitled to rescission Pinson had to at least plead and prove that he justifiably revoked acceptance of the automobile by pleading and proving that its nonconformity substantially impaired its value to him.

Pinson neither pleaded nor presented evidence of loss of use of the automobile or that the automobile was of any less value to him. Such matters were not tried by consent. The only evidence before the trial court as to the impairment of the value of the automobile was that of the estimated cost of repairs. Pinson refused Freeman Oldsmobile’s offer to make such repairs at no cost to him.

We hold that Pinson has failed to plead and prove the nonconformity substantially impaired the value of the automobile to him and further hold as a matter of law that a $75 to $100 defect in a $5,720.33 automobile is not such a nonconformity as to substantially impair the value of the car. Therefore, Pinson was not authorized under Section 2.608 to revoke his acceptance of the car and recover the price paid. The trial court erred in ordering rescission of the sale.

The judgment of the trial court is reversed and judgment is here rendered that Jess F. Pinson take nothing.


author: SUMMERS, Chief Justice.

text:
    Edward T. POYNTER, Appellant, v. Sunny Sue HAIK, Appellee.
    No. 1200.
    Court of Civil Appeals of Texas, Tyler.
    March 29, 1979.

      Hellmut A. Erwing, Houston, for appellant.
    Patricia R. Lykos, Allen, Lykos & Thibo-deaux, Houston, for appellee.
   SUMMERS, Chief Justice.

This is an appeal from an order of the trial court increasing the father’s child support payments.

Appellee, Sunny Sue Haik, and appellant, Howard Poynter, were divorced in 1968. Under the divorce decree, appellee was awarded custody of three minor children and appellant was ordered to contribute to the support of said children. On August 31, 1971, the court entered an order finding the appellant’s income to be approximately $1,200.00 per month and ordered that he pay th^ sum of $405.00 per month ($135.00 per month per child) for the support of said three children. On July 22, 1977, appellee filed a motion to modify the order of August 31,1971, by increasing appellant’s child support payments from the previously ordered $405.00 per month for said three children under the age of eighteen years to $1,200.00 per month for the two children then under the age of eighteen years. Upon a nonjury trial before the court on November 8, 1977, the child support payments to be paid by appellant were ordered increased to $800.00 per month for the two children then under eighteen years of age, namely, Kevin Donald Poynter, a male born August 7, 1961, and Brandon Blair Poynter, a male born August 24,1964, to be reduced to $500.00 per month when the elder child attains the age of eighteen years, and to cease when the youngest child attains eighteen years of age; it is from this order that appellant appeals.

We affirm.

The record before us is without findings of fact or conclusions of law. Under these circumstances, the well settled rule is that the appellate court is required to affirm the judgment rendered by the trial court if it can be sustained on any reasonable theory authorized by law and supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, 554 (Tex.Civ.App.—Tyler 1965, no writ).

Appellant’s appeal is predicated upon four points of error alleging that the court erred in ordering a 100% increase in child support because (1) such increase constitutes a clear abuse of discretion, (2) there is no evidence justifying such increase, (3) such increase was based on the “wealth” of the father and not on the needs of the children, and (4) such order is so greatly against the weight and preponderance of the evidence as to be manifestly wrong and unjust. Appellant states in his brief that he has grouped all points together because they all attack the trial court’s finding of support as excessive.

At the time of the trial the appellant had remarried, and the record does not reflect that any children have been bom to this marriage. The appellant’s income has increased from $1,200.00 per month at the time of the prior order in 1971 to approximately $4,100.00 per month take-home pay at the time of this hearing in November 1977. In 1976, 1975 and 1974 his taxable income exceeded $100,000.00 per year. Appellant’s counsel stipulated into the record that appellant’s salary is more than sufficient to cover any court awarded support. Appellant testified his present expenses, including his $400.00 child support payment, amount to $3,284.27 per month and that $550.00 per month should provide support “in a decent fashion.” He also said “if I had my children living with me, of course, they would be living exactly like I do.”

Appellee remarried in June 1973, and two children were born to this marriage. One of these children died after a year of hospitalization and the other was one year of age at the time of the hearing. In caring for these two children of her present marriage, appellee and her present husband have incurred outstanding medical bills of about $140,000.00. Appellee testified that she had monthly expenses of $3,559.00 to $3,759.00, and that these expenses were for necessaries and not luxuries. She further testified that her present husband’s income is $2,300.00 per month, and that her earnings, mostly from modeling, have declined from a high of about $6,000.00 a year after 1971 to approximately $1,700.00 for the year 1976 and to $800.00 for ten months of the year 1977. She stays home primarily to be with her youngest child and because of surgery during the year. Further testimony showed that the family owned two automobiles, one five years old and the other four years old at the time of the hearing; that these automobiles were used by the two older children and that the gasoline expense per month was $200.00. Appellee’s expenditure sheet reflected $650.00 per month for food. Appellee further testified that rent expense for her and the boys in early 1973 prior to her marriage to Mr. Haik was $275.00 per month and that the present house payment is $750.00 per month. Ap-pellee further testified that the expenses of the children of her former marriage have increased since 1971 because they are older, they have grown up, and the cost of living has gone up with the inflation experienced. She testified her present husband has been supporting the boys about 80% for about four years; that Tommy, the eighteen year old, is still in high school and living with them; and that they are still supporting him. She also testified food alone for the two teenage boys under eighteen amounts to at least $300.00 per month, and that about $500.00 per child as a minimum is needed for the two children.

Each case involving the question of child support payments must stand on its own facts, and trial courts by necessity have wide discretion in regard thereto. Dennis v. Dennis, 512 S.W.2d 699, 701 (Tex.Civ.App.—Tyler 1974, no writ); Madden v. Madden, 365 S.W.2d 427, 429 (Tex.Civ.App.—Fort Worth 1963, no writ). Such discretion will not be disturbed on appeal unless the court has clearly abused its discretion. Lambert v. Lambert, 545 S.W.2d 542, 545 (Tex.Civ.App.—Houston [1st] 1976, no writ); Jackman v. Jackman, 533 S.W.2d 361, 364 (Tex.Civ.App.—San Antonio 1975, no writ); Hearn v. Hearn, 449 S.W.2d 141, 143 (Tex.Civ.App.-Tyler 1969, no writ).

In determining the duty of a parent to support a child after a divorce, it is to be borne in mind that such duty corresponds to his or her overall financial ability and the needs of the child. Gully v. Gully, 111 Tex. 233, 231 S.W.2d 97, 100 (1921); Ondrusek v. Ondrusek, 561 S.W.2d 236 (Tex.Civ.App.—Tyler 1978, no writ); Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex.Civ.App.—Houston [1st] 1974, no writ).

In passing upon the “no evidence” point, we consider only that evidence and the reasonable inferences therefrom, which viewed in its most favorable light, supports the trial court’s judgment and disregard that which is contrary thereto. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914). In determining the “insufficient evidence” point, we consider and weigh all the evidence in the case to determine whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Garza v. Alviar, supra; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).

Viewing the evidence in the light which we must, we have concluded that there is evidence of probative force to support the trial court’s judgment increasing appellant’s child support payments in the amounts stated and that the judgment is not against the great weight and preponderance of the evidence. There is evidence in the record from which the trial court could find that the circumstances of the parties and the children herein have materially and substantially changed since the pri- or support order in 1971. We find no basis in the record for appellant’s contention that the increase in child support was based solely on the “wealth” of the father without considering the needs of the children. After reviewing the entire record, we cannot agree that the trial court abused its discretion in increasing the appellant’s child support payments as set forth herein.

We have considered all of appellant’s points of error and believe them to be without merit and the same are hereby overruled. The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    N. S. SAWYER and Laura Oppelt, Appellants, v. Walt PIERCE and Pat Pierce, Appellees.
    No. 1330.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 30, 1979.
    Rehearing Denied April 19, 1979.

      James H. Denison, Jr., Denison & Mann, Harlingen, for appellants.
    William L. Hubbard, Neal Bonner, Bonner & Bonner, Harlingen, for appellees.
   OPINION

NYE, Chief Justice.

Walt Pierce and his wife, Pat, purchasers of certain improved real estate, brought suit against the sellers, N. C. Sawyer and Laura Oppelt, seeking rescission and cancellation of a real estate transaction and the return of their cash investment in the property, including the cost of repairs and added improvements. The sellers defended on the basis that the purchasers had waived their right to seek rescission and cancellation by ratifying the contract in question. After a trial before the court, sitting without the intervention of a jury, the court entered judgment rescinding the contract, cancel-ling the conveyance and awarding the purchasers a joint and several judgment against the sellers for $16,370.56. The sellers appeal.

The property in question, commonly called the Holiday Apartments and Trailer Park, was located in Arroyo City, Cameron County, Texas, and contained slightly less than one acre of land. The improvements included: 1) a large house which had been divided into four apartments; 2) an outbuilding containing two baths and showers; 3) a pier extending into the adjacent arroyo; and 4) several improved trailer spaces all located on the property. The availability of this property for purchase was described and advertised in a typed brochure and indicated that inquiries should be directed to N. C. Sawyer (one of the appellants) at his address in San Antonio.

Mrs. Pierce, the buyer, originally learned that the property was for sale when her employer, Nussbaum Realty of Brownsville, Texas, received one of the brochures describing the property. The brochure contained numerous statements concerning the property, including the statement that “There’s room for 30 trailer spaces . .” On July 21, 1976, Mrs. Pierce, who was a licensed real estate agent, attempted to contact Sawyer in San Antonio to obtain a listing on the property. Thereafter, Mr. and Mrs. Pierce became interested in buying the property for themselves.

The record indicates that Mrs. Pierce visited the property at least three times before the sale was consummated. During her first visit, which occurred immediately prior to her trip to San Antonio, she talked with a Mr. Garza who was in possession of the property under a contract for deed from Mr. Sawyer. After returning from San Antonio, Mrs. Pierce and her husband visited the property a second time when Mr. Garza was not present. During this visit, the Pierces walked around the premises, walked onto the pier, and looked into the outbuilding containing the bath and showers. During the third visit, Mr. Garza showed them through each of the apartments and the outbuilding. Mr. Garza informed them that he had been living on the property for approximately two years and that he had not operated the property very much because he was a minister and was gone much of the time. Mr. Garza told the Pierces that he obtained approximately $45.00 per month for the trailer spaces and that the apartment rental amount varied.

Thereafter, Mrs. Pierce contacted Mr. Sawyer and arranged for a meeting. Sawyer and appellant Oppelt, Sawyer’s personal secretary, met the Pierces in Harlingen, Texas. As a result of this meeting the Pierces and Sawyer entered into a contract for the sale of the property to the Pierces. On August 17,1976, the sale was closed and the property was conveyed to the Pierces by warranty deed. The consideration was $10,000.00 cash, the execution and delivery of a $60,000.00 note and the contractual obligation to install at purchasers’ own expense “no less than ten trailer hookups” and to “replace all rotten lumber and paint said apartment house” within six months from the closing date of the sale. The obligations under the contract of sale and under the note were secured by a deed of trust on the property.

The Pierces took possession of the property and initiated their plans to develop the property for commercial purposes. In September of 1976, they were advised by the Cameron County Building Department that no more than fifteen trailer spaces could be developed on the property because the property was less than one acre and county regulations prohibited the placing of more than fifteen units on one acre of land. At first, the Pierces thought that this was an innocent mistake of fact on the part of the sellers, however, other disparities between the typed brochure and the condition of the premises soon became apparent thereafter. On September 27, 1976, the Pierces sent a letter to Sawyer and Oppelt complaining of the disparities and requested a compromise settlement. On November 17, 1976, appellant Oppelt sent the Pierces a letter which refused their settlement offer.

On January 5, 1977, an attorney for the Pierces attempted to notify appellant Sawyer by letter that the Pierces intended to rescind their purchase of the property. This letter remained undelivered. Thereafter, a second notice letter dated February 17, 1977, was sent and received by Sawyer. When Sawyer refused to accept the Pierces’ offer to rescind, the Pierces did not make any further improvements to the property or further payments under the note. The Pierces then filed this suit against Sawyer and Oppelt. Sawyer then started foreclosure procedures under the deed of trust. On May 3, 1977, a foreclosure sale was held pursuant to the terms of the deed of trust. The property was sold to Sawyer himself for $35,000.00. By cross-action appellant Sawyer sought $28,200.00 for a deficiency between the amount the property brought at the trustee’s sale and the obligations on the real estate contract and note.

The Pierces claimed in their suit against the appellants that the following statements contained in the original brochure that they received were false. They are, in relevant part, as follows, that:

1) “All [apartments] have 23,000 BTU new Whirlpool air conditioners, . .”
2) “Addn. Building: Separate from the apt. building there are 2 complete showers, comodes (sic), and lavatories for people to use that fish, picnic or trailers that are not modern.”
3) “Bulkhead: Double cypress power driven into the ground at the waters edge, secured to extra long high line poles power driven into the ground, all secured to a ‘dead man’ high line pole to prevent erosion.”
4) “The Marshall Hutt Rd. (which this property fronts on) is the highway leading to the Lagune Atascosa Refuge, in Sept, this year they are to begin construction of a Scenic Rd. from Rio Hondo through Arroyo City, the game reserve to South Padre Island [will enhance] value of this property greatly.”
5) “There is additional land owned by the owner of this property that lies between the bulkhead and the south boundary of the ship channel that is ideal for building house boats, boat houses, and boat docks.”
6) “This property has not been managed in the summer — in the winter the income is $535. from the apts. $150. for 3 of them — $85. for 1 — One can get as high as $25. per night for the apts. offering lighted fishing from the 60' pier.”
7) “There are presently 13 trailer spaces that rent for $65. per month in the winter — which is $845. per month — total monthly winter income $1,380. There is room for a total of 30 trailer spaces which will bring in $1,950. monthly, plus the apts. total app. $2,500. per month — .”

The trial court found that: 1) the defendants made each of the above representations to the purchasers concerning the property in question during the course of the negotiations leading to the execution of the real estate sales contract; 2) the defendants made such representations for the purpose of inducing the purchasers to enter into the real estate sales agreement; 3) the purchasers relied upon such representations; 4) such representations were materially false; 5) the sellers were aware that such representations were materially false; 6) the sellers’ misrepresentations were made prior to the execution of the real estate sales contract; 7) the purchasers did not have knowledge that such representations were false; and 8) the purchasers expended certain sums as a result of the agreement to purchase the property in question, in addition to the cash downpayment ($10,000), interest payments for five months ($2,000), and six enumerated repairs and improvements to the property ($4,370.56). Based on these findings of fact, the trial court awarded judgment to the Pierces setting aside and rescinding the real estate sales contract upon which the transaction was based and awarding them $16,370.56.

The sellers bring forward thirty-five points of error for our consideration. Appellants attack the trial court’s failure to file additional findings of fact requested by them in support of their defense that the purchasers were not entitled to the remedy of rescission because they had ratified the real estate sales contract in question as a matter of law. The refusal of the trial court to adopt the sellers’ tendered findings of fact was tantamount to findings against this defense. See Thompson v. Lee Roy Crawford Produce Co., 149 Tex. 357, 233 S.W.2d 295, 297 (1950); Sauer v. Johnson, 520 S.W.2d 438, 441 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.); Missouri Pacific Railroad Co. v. Trautmann Bros., 301 S.W.2d 240, 243 (Tex.Civ.App.—San Antonio 1957, writ ref’d n. r. e.).

Next we must decide whether or not the evidence as a whole demonstrates that the purchasers ratified the fraudulent misrepresentations of the sellers as a matter of law. There are certain set rules that we must follow when considering such a question. Ratification is the adoption or confirmation by a person with knowledge of all material facts of a prior act which did not then legally bind him and which he had the right to repudiate. Ratification occurs when one, induced by fraud to enter into a contract, continues to accept benefits under the contract after he becomes aware of the fraud, or if he conducts himself in such a manner as to recognize the contract as binding. Once a contract has been ratified by the defrauded party, the defrauded party waives any right to seek rescission. Wise v. Pena, 552 S.W.2d 196, 199 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d); Kunkel v. Kunkel, 515 S.W.2d 941 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.); Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (1960); Rosenbaum v. Texas Building & Mortgage Co., 140 Tex. 325, 167 S.W.2d 506 (1943); Payne v. Baldock, 287 S.W.2d 507 (Tex.Civ.App.—Eastland 1956, writ ref’d n. r. e.).

The key element which must be proved to establish ratification of the fraudulent conduct is that the ratifying party had full knowledge of the fraudulent acts at the time he ratified these acts. Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d); Most Worshipful Grand Lodge Free & Accepted Masons of Texas v. Hayes, 82 S.W.2d 411 (Tex.Civ.App.—Dallas 1935, no writ). See also Rourke v. Garza, 530 S.W.2d 794 (Tex.Sup.1975); Viracola v. Dallas International Bank, 508 S.W.2d 472 (Tex.Civ.App.—Waco 1974, writ ref’d n. r. e.); Norman v. Safway Products, Inc., 404 S.W.2d 69 (Tex.Civ.App.-Dallas 1966, no writ); Woods v. Fisher, 106 S.W.2d 774 (Tex.Civ.App.—Texarkana 1937, no writ).

The question of ratification of a contract is usually a mixed question of law and fact. Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d). If the evidence of ratification is uncontroverted or uncontrovertible, then the question of ratification could be determined as a matter of law. Rosenbaum v. Texas Building & Mortgage Co., 140 Tex. 325, 167 S.W.2d 506 (1943); Powell v. Rockow, 127 Tex. 209, 92 S.W.2d 437 (1936); Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App.-Corpus Christi 1977, writ dism’d); Gaston v. Copeland, 335 S.W.2d 406 (Tex.Civ.App.—Amarillo 1960, writ ref’d n. r. e.). However, when the act or acts of ratification are controverted, the question of ratification becomes one for the trier of facts. Missouri Pacific Railway Co. v. Brazil, 72 Tex. 233, 10 S.W. 403 (1888); Wise v. Pena, 552 S.W.2d 196, 200 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Indemnity Insurance Company of North America v. Sterling, 51 S.W.2d 788 (Tex.Civ.App.—Beaumont 1932, writ dism’d).

Mrs. Pierce testified, in substance, that her offer to purchase the property for $70,-000 was predicated upon her estimation of the value of the property based upon income projections from expected rental income for thirty trailer spaces plus rental income from the house and apartments. When it became evident that the property would support a total of only fifteen trailer spaces pursuant to county regulations, Mrs. Pierce testified she wrote the September 27 letter in an attempt to reach a settlement agreement concerning the purchase price “so that we might not have a complete loss on income-producing property that wouldn’t produce what it was represented to.” The sellers did not notify the purchasers of their refusal to accept the terms of the proffered settlement agreement until November 17, 1976, when Oppelt sent a refusal letter to the Pierces. During this time, the purchasers tried to sell the property, but no purchaser was located. Mrs. Pierce testified to the effect that she and her husband thought that the representations made by the sellers were innocent until sometime in January, over a month after they received Oppelt’s November 17 letter. It was then that they acquired information that the sellers knew of the county regulations at the time the representations were made to them. It was immediately thereafter that the purchasers notified the sellers of their intent to rescind the contract.

Ratification and waiver involve the question of intent. Humble Oil & Refining Co. v. Jeffrey, 38 S.W.2d 374 (Tex.Civ.App.—Austin 1931) aff’d, 55 S.W.2d 521 (Tex.Comm’n App.1932, jdgmt. adopted); Rutherford v. Page, Southerland & Page, 429 S.W.2d 602, 610 (Tex.Civ.App.—Austin 1968, writ ref’d n. r. e.); Athans v. Rossi, 240 S.W.2d 492 (Tex.Civ.App.—Fort Worth 1951, writ ref’d n. r. e.); 10 Tex.Jur.2d, Cancellation of Instruments, §§ 57-58 (1959). See Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506, 508 (1943); United Parcel Service v. Helen of Troy Corp., 536 S.W.2d 415, 417-18 (Tex.Civ.App.—El Paso 1976, no writ). None of the purchasers’ acts, nor a combination thereof, is sufficient to establish ratification of the contract with full knowledge of the sellers’ misrepresentations as a matter of law. The purchasers’ delay or their conduct prior to their February rescission letter was not necessarily inconsistent with an intention of avoiding the agreement. Conflicting inferences concerning the purchasers’ intent are raised by the evidence. At most, factual issues concerning sellers’ defenses of ratification were raised. The trial court’s express findings and its refusal to make the requested findings amounted to contrary findings which cannot be set aside on appellants’ legal sufficiency points. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1957). See Thompson v. Lee Roy Crawford Produce Co., 149 Tex. 357, 233 S.W.2d 295, 297 (1950). Looking at the evidence only in the light most favorable to the purchasers’ position, as we must, we find that there is evidence in the record to support the trial court’s negative findings concerning the sellers’ defensive issue of ratification. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957). We cannot say that the evidence, when considered as a whole, conclusively establishes ratification as a matter of law.

We next turn to the purchasers’ points of error which attack the trial court’s findings concerning the ten separate misrepresentations. Although the trial court found that ten separate misrepresentations had been made by the sellers, the appellants contend that the crux of the dispute between the parties concerns the representation that “there is room for a total of 30 trailer spaces. . . .” These points of error attacking the trial court’s findings are, again in effect, legal sufficiency points which presents a question of law.

As a general rule, the following elements must appear to constitute actionable fraud based upon misrepresentation: 1) that a material representation was made; 2) that it was false; 3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; 4) that he made it with the intention that it should be acted upon by the party; 5) that the party acted in reliance upon it; and 6) that he suffered injury thereby. The gist of such an action is found in the fraud of the defendant and damages to the plaintiff. Each of these elements must be established with a reasonable degree of certainty. The absence of any one of them will, of course, prevent a recovery. Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138, 143 (Tex.Sup.1974); United States Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex.Sup.1973). See King v. Tubb, 551 S.W.2d 436, 440-41 (Tex.Civ.App.—Corpus Christi 1977, no writ); Traylor v. Gray, 547 S.W.2d 644, 650 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Menking v. Bishman Manufacturing Co., 496 S.W.2d 762, 765-66 (Tex.Civ.App.—Corpus Christi 1973, no writ); Long v. Smith, 466 S.W.2d 32, 36 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.). A simple statement or representation standing alone does not create a cause of action for fraud. The statement must be proved to be false, and before a false statement becomes actionable, there must be a reliance by the complainant to his detriment. Menking v. Bishman Manufacturing Co., 496 S.W.2d 762, 766 (Tex.Civ.App.—Corpus Christi 1973, no writ); Finger v. Morris, 468 S.W.2d 572 (Tex.Civ.App.-Houston [14th Dist.] 1971, writ ref’d n. r. e.).

In point of error number two, the sellers generally attack the trial court’s finding that each and all of the representations were material. However, the point of error is somewhat limited.

“The trial court erred in finding that all of the representations made by Sawyer and Oppelt regarding the property were material in that as a matter of law only the representation regarding the number of trailer spaces which could be placed on the property could arguably be material.”

In order to constitute a suitable basis for a decree of cancellation, the' misrepresentation alleged must relate to a material fact. In order to make it material, proof must be made that it induced the complaining party to enter into the contract. See Putnam v. Bromwell, 73 Tex. 465, 11 S.W. 491 (1889); Nimmo v. O’Keefe, 204 S.W. 883 (Tex.Civ.App.—Fort Worth 1918, no writ); 25 Tex.Jur.2d, Fraud & Deceit, § 15, p. 630 (1961). The appellants told the Pierces that “There is room for a total of 30 trailer spaces which will bring in $1950 monthly, plus the apartments, total approximately $2500 per month.” The Pierces testified repeatedly that the determining factor in their decision to buy the property was their income projections based upon income generated, in part, from 30 trailer spaces and that if there wasn’t room for that many spaces there would not be sufficient income generated to finance the purchase of the property. Mrs. Pierce testified in substance that all of their plans were dependent upon the potential available number of trailer spaces. Appellants’ arguments and authorities relating to this point of error, in effect, admit that there is evidence in the record to support the trial court’s finding that the representation concerning the available number of trailer spaces was a material representation. We agree there was ample evidence to support this finding.

The only other points of error directly relating to the trial court’s findings that the sellers fraudulently misrepresented the potential trailer spaces available are points numbers 3, 12 and 28. In point of error number 12, appellants contend that there is no evidence in the record that the statement concerning the available number of trailer spaces was false. Under this point of error, appellants argue that there is no evidence that there was not room for 30 trailer spaces.

The contract of sale under which Mr. Garza had possession of the property in question was introduced into evidence. This contract also required Garza to place additional trailer spaces on the property. Garza testified that when he had applied to the county officials to obtain the permit to place additional trailer spaces on the property, the request was refused because of the county regulations concerning the number of trailer spaces. Garza testified that he informed appellant Oppelt of this county regulation and of his inability to obtain such a permit. It is undisputed that Oppelt drafted the brochure concerning the property on behalf of Sawyer and herself. There is ample evidence in the record that she did so knowing that the county regulations that were then in effect would preclude more than fifteen trailer spaces on the property, and that the representation in question was false. Appellants’ point of error number 12 is overruled.

In point of error number 28, the appellants generally contend that the trial court erred in entering judgment in favor of the Pierces because, at the time of the closing of the sale, the Pierces were in possession of sufficient knowledge to put them on inquiry, and therefore were charged with knowledge, as a matter of law, of all facts which a proper inquiry would have revealed. The appellants contend that the only misrepresentation which the trial court found to exist, and of which the Pierces did not have full knowledge, was their representation regarding the number of trailer spaces that could be placed on the property in question. Appellants apparently contend that the accuracy of the representation regarding the trailer spaces could have easily been checked out by simply contacting the Cameron County Building Department. In this argument, the appellants indirectly raised the question of how this representation should be characterized.

We recognize the general rule that everyone is presumed to know the law and therefore has no right to rely upon representations by others as to what the law might be. Such representations are to be treated as mere statements of opinion and not of fact. In this instance, the misrepresentation was not clearly a misrepresentation as to a matter concerning the law. Compare Safety Casualty Company v. McGee, 133 Tex. 233, 127 S.W.2d 176 (1939). The appellants contend that the particular misrepresentation here was merely that the property had sufficient room for thirty trailer spaces. Although there is evidence to the contrary, there is ample evidence in the record from which the trial court could have reasonably concluded that Sawyer and Oppelt had actual knowledge that as a matter of fact thirty trailer spaces could not be placed on the property due to the county regulations. The misrepresentation was not that “the county regulations permit 30 trailer spaces on less than 1 acre of land.” The misrepresentation was, only at most, an indirect misrepresentation of a legal matter and thus, the principles pertaining to representations as to matters of law are not absolutely analogous.

One notable exception to the general rule is that where one party who possesses superior knowledge as to the law takes advantage of the other party’s ignorance in that respect, and intentionally makes a misrepresentation concerning the law for the purpose of deceiving the other party and actually succeeds in that respect, may be held responsible for his conduct. Safety Casualty Co. v. McGee, 133 Tex. 233, 127 S.W.2d 176, 178-179 (1939). In Safety Casualty Company v. McGee, 133 Tex. 233, 127 S.W.2d 176, 178 (1939), our Supreme Court cited with approval the following statement of the exception:

“ ‘The same is true where one who himself knows the law deceives another by misrepresenting the law to him, or knowing him to be ignorant of it, takes advantage of him through such ignorance, or where the person to whom the representations are made relies upon the supposed superior knowledge and experience of the other party and on his statement that it is unnecessary or-inadvisable for him to consult a lawyer.’ ”

Here we have at most a mixed question of law and fact. Actually, it may have been possible to physically plaee thirty trailers on the land in question, but the county regulations (law) prohibited more than fifteen spaces in this particular case. The appellants knew of this regulation and deceived and misrepresented the facts to the appel-lees. There was a second material misrepresentation in the latter part of appellants’ statement: that it was possible for the property to produce $1950 monthly income from the thirty trailer spaces. The evidence in the record showed that the Pierces were totally inexperienced in the mobile-home trailer park business. It was undisputed that the Pierces had no actual knowledge of the county regulation in question. There is ample evidence in the record that the sellers (appellants) knew of the county regulation in question and, in spite of that knowledge, intentionally and fraudulently made the misleading statement concerning the number of trailer spaces which could be placed in operation on the property and the amount of money such spaces would generate. There is evidence to support the trial court’s finding. We hold that the appellees were not charged with knowledge of the fraud as a matter of law. Appellants’ point of error number 28 is overruled.

What we have said under the above points of error is equally applicable to the only other point of error (three) which is related to the trial court’s findings concerning fraudulent misrepresentation of the available trailer spaces. The sellers bring forward no other points of error attacking these findings. Even if it could be said argumentatively that the sellers’ points of error relating to the other misrepresentations have some merit because of appellees’ knowledge, the misrepresentations concerning the availability of additional trailer spaces, standing alone, are sufficient to support the trial court’s judgment rescinding the contract.

The sellers’ remaining points of error complain of the trial court’s judgment allowing the purchasers to recover from the sellers the sum of $16,370.56. This case was tried before an able trial judge. He made extensive findings of fact. In addition to the expressed findings, the record shows that these same appellants have sold and resold this same property four or five times and have repossessed it the same number of times at a later date after each sale. They inferentially admitted, in effect, that the property wasn’t worth the amount of the original sales price when they sold it at the trustee’s sale. This is so, because they bid it in at their own sale at one-half ($35,-000.00) of the original sales price ($70,-000.00) less than a year after the sale had been consummated to these appellees. This was even after extensive improvements had been made to the property by the appellees. Then the appellants, without any actual notice to the appellees that if such property failed to bring at least the amount of the unpaid obligation at the trustee’s sale, they would seek a judgment against the appel-lees for the deficiency between the amount realized at the trustee’s sale and the remaining obligation under the deed of trust. In this case, they received both the property in question and, in addition, sought a deficiency judgment by way of a cross-action for $28,200.00. See Crow v. Heath, 516 S.W.2d 225 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.).

The trial court had the opportunity to see the parties and the witnesses, observe their demeanor, and judge their credibility. He could believe that which he perceived to be the truth and disbelieve that which did not comport to his experience as a judge. The appellants’ points of error are all legal sufficiency points or law questions based on the facts and evidence presented to the trial court. Appellants did not request any specific requests for findings for equitable adjustments in their favor, nor did they file objections to the findings in support of the trial court’s monetary award. The primary purpose of a suit such as this to cancel a contract obtained by fraud is to undo the fraud and place the parties in their original position. Finch v. McVea, 543 S.W.2d 449, 452 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); Howard v. Burkholder, 281 S.W.2d 764 (Tex.Civ.App.—Amarillo 1955, writ dism’d). Where relief is finally granted, the original status of the parties must be restored as nearly as possible. In this case, possession and title to the property had been restored to Sawyer when he instituted foreclosure proceedings and purchased the property and secured possession at the foreclosure sale. We, therefore, find and conclude that the trial court correctly adjusted the equities in the damages awarded to appellees. All of appellants’ points of error have been considered and are overruled.

The judgment of the trial court is AFFIRMED.

      . “Enclosed is the check of $400.00 for Oct 76 interest. . . . There is only one stool & one lavatory that is hooked up & neither of them work. The roof on the building that they are in must be replaced & the roof in the main house leaks. 3 of the four air conditioners in the house are malfunctioning but of course they are more than three years old and that is about as long as they last year without being rebuilt. The pier and bulkhead is so corroded it is too dangerous for the public without a great deal of work plus a complete new wiring job. Of course there are many other things that were misrepresented but we feel sure they were not intentional. Our main concern is the county zoning laws & requirements for a travel trailer park. The only way we were able to put in the 8 trailer spaces was because the 13 hookups that were in are too close together to be allowed. Also the existing septic tanks were not adaquete (sic). . . . Walt and I have talked it over and have agreed that you probably did not mean to misrepresent the income potential and would want to be fair without us being out the expense of legal counsel. If we could do this without hiring a lawyer we feel that a notarized statement to the effect that we had fulfilled the trailer space requirements & the house painting & repairs (we have the estimation (over a thousand) & of course the painting we will complete in the six months — and give us credit of $5,000.00 on the unpaid principal of $60,000 we could make the place in the condition it was represented.
      [Signed]: Mr. & Mrs. W. E. Pierce.”

      . The trial court also found:
      9. “The following are found to exist with regard to said representations:
      a. The income from the apartments was never as high as $535.00 per month;
      b. The apartments on the property never rented for as much as $25.00 per night;
      c. There was not room on the property to construct a total of thirty (30) trailer spaces;
      d. The land between the bulkhead and the ship channel is subject to erosion and accretion and is further subject to Navigation District control as to the construction of the buildings;
      e. There were no plans to construct a road adjacent to the property through to Port Isabel;
      f. That the bulkhead was not constructed as represented and had been recently filled with dirt to replace dirt which had eroded;
      g. There were no showers, commodes, or lavatories, and such plumbing facilities as were there were not hooked up;
      h. The roof leaked; and
      i. The air conditioning units were 3⅝ years old.”


author: BISSETT, Justice.

text:
    W. B. DUNAVANT & COMPANY, Appellant, v. John DOEDYNS, Appellee.
    No. 1499.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 30, 1979.
    Richard D. Davis, Johnson & Davis, Har-lingen, for appellant.
    William E. York, McAllen, for appellee.
   OPINION

BISSETT, Justice.

The transcript in this cause was received by our Clerk on March 6, 1979. The transcript was received, but not filed, and a jurisdictional question brought to the attention of the Court. Rules 388 and 389, T.R. C.P. We conclude that the appeal was not perfected within the time required by Rules 356 and 386, and therefore dismiss the appeal.

Appellant W. B. Dunavant and Company, a buyer of cotton, sued appellee John Doe-dyns, a farmer and cotton grower, in 1973 for failure to deliver his entire 1973 cotton crop under the terms of a contract which allegedly obligated the appellee to sell all the cotton grown on his acreage to the appellant at an agreed-upon price.

On October 31, 1978, the case was dismissed by the trial court for want of prosecution pursuant to Rule 165a, T.R.C.P. Seventeen days later, on November 17, 1978, appellant filed a verified motion for reinstatement. A hearing on the motion was held November 30, 1978, and the motion was subsequently denied by order signed January 9, 1979. Appellant filed a cash deposit in lieu of bond on December 29, 1978.

N-S-W Corp. v. Snell, 561 S.W.2d 798 (Tex.Sup.1977) controls the disposition of this case. The trial court had jurisdiction of this cause for a period of thirty days after the cause was dismissed. Rule 329b(5). This period was not extended under Rule 165a because the motion to reinstate was filed within twenty days of the order of dismissal, thus establishing that appellant had notice within twenty days. N-S—W Corp. v. Snell, supra; Johnson Radiological Group v. Medina, 566 S.W.2d 117 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ dism’d as moot); Baughtman v. Electric Insurance Co., 553 S.W.2d 5 (Tex.Civ.App.—Waco 1977, writ ref’d n. r. e.); Calaway v. Gardner, 525 S.W.2d 262 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ). It was not extended under Rule 329b(l), T.R.C.P., because the motion to reinstate, filed more than ten days after the order of dismissal, cannot be considered a motion for new trial. Plains Growers, Inc. v. Jordan, 519 S.W.2d 633, 645 (Tex.Sup.1974). See also General Motors Corp., Chevrolet Division v. Lane, 496 S.W.2d 533 (Tex.Sup.1973); Calk v. Gans & Smith Insurance Agency, Inc., 535 S.W.2d 755 (Tex.Civ.App.—Tyler 1976, no writ). Therefore, the trial court lost jurisdiction at the expiration of thirty days, or on November 30, 1978, and any order rendered thereafter was void.

Since the order of January 9, 1979, denying reinstatement of the case was void, the appeal could have been perfected only by filing an appeal bond or cash deposit within thirty days following the order of dismissal. Rule 356, T.R.C.P.; Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315, 318 (1956). The deposit was not filed until December 29, 1978.

The record in this case was due to be filed in this Court within sixty days of the date on which the trial court’s order was signed, unless the time was extended. Rules 386 and 21c, T.R.C.P. The sixtieth day following the order of dismissal was Saturday, December 30, 1978. The due date became Tuesday, January 2, 1979, the next day which was not a Saturday, Sunday, or legal holiday. Rule 4, T.R.C.P. The transcript was not tendered until March 6, 1979, and no motion to extend time has been filed.

We have no jurisdiction of the appeal. The appeal is DISMISSED.


author: PRESSLER, Justice.

text:
    J. R. NEATHERLIN CORPORATION, Appellant, v. Don C. BAUGHMAN, et ux., Appellees.
    No. A1954.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 4, 1979.
    Rehearing Denied April 25, 1979.
    Meyer Jacobson, Houston, for appellant.
    Charles W. Kelly, Bryan A. Domning, Ross, Griggs & Harrison, Houston, for ap-pellees.
    Before PRESSLER, MILLER and SALAZAR, JJ.
   PRESSLER, Justice.

This is an appeal from a judgment for appellees, plaintiffs below, wherein the jury found money damages resulting from the moving of appellees’ house by appellant, defendant below. In the final judgment the Court disallowed the jury’s finding that the value of the house was enhanced as a result of repairs by appellees.

Appellees entered into a written contract with appellant, whereby appellant was to transport a house owned by appellees from Tomball, Texas to Iowa Colony, Texas. The contract stated that the work was to be done in a workmanlike manner. The housemoving took approximately two months to complete. During the move the house was damaged and repairs were required. Ap-pellees filed suit to recover the cost of repairing the house from appellant. Appellant answered by a general denial but later was allowed to file a trial amendment. The amended answer alleged that the value of the house had been enhanced by the repairs made by appellees after the move was completed.

The case was tried before a jury and, after presentation of the evidence by both parties, was submitted to the jury on special issues. In answering the special issues, the jury found that as a result of defendant’s negligence in moving the house, the plaintiffs sustained damages of $3,500.00. In addition, the jury found that the repairs made by plaintiff resulted in increasing the value of the house by $8,671.00. The trial court then rendered judgment for appellees for $3,500.00, disregarding the finding that the value of the house had been enhanced. Appellant has perfected this appeal from the trial court’s judgment.

Appellant contends that the judgment of the trial court is contrary to the evidence and to the law and that appellees should recover nothing because of the finding that the value of their home had been enhanced. It is well established that the trial court, in rendering judgment based on a jury verdict, is not strictly bound by the answers to each special issue, but rather may consider the verdict as a whole. Teas v. Republic National Bank of Dallas, 460 S.W.2d 233 (Tex.Civ.App.-Dallas 1970, writ ref’d n. r. e.).

It appears from the record that the jury’s finding that the appellees were entitled to compensation for damages caused by appellant’s negligence made the enhanced value issue immaterial. Texas cases have clearly established that a trial court may disregard a jury’s finding on an immaterial special issue and render judgment based upon the remaining issues. Southern Pacific Transportation Company v. Allen, 525 S.W.2d 300 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ); Acoustical Screens in Color, Inc. v. T. C. Lordon Company, Inc., 524 S.W.2d 346 (Tex.Civ.App.-Dallas 1975, writ ref’d n. r. e.).

We have reviewed the verdict of the jury, along with the entire trial record, and find that the judgment of the trial court was clearly within its discretion.

The judgment of the trial court is affirmed.

Affirmed.