author: SHANNON, Justice.

text:
    COX ENTERPRISES, INC., d/b/a Austin American-Statesman, Appellant, v. Richard FILIP and Jack Elliott, d/b/a Trans Texas Properties, Appellee.
    No. 12430.
    Court of Civil Appeals of Texas, Austin.
    June 30, 1976.
    John T. Anderson, Graves, Dougherty, Hearon, Moody, Garwood, Austin, for appellant.
    Laird Palmer, Austin, for appellee.
   SHANNON, Justice.

Appellant, Cox Enterprises, Inc., doing business as Austin American-Statesman, filed suit in county court at law of Travis County against Richard Filip and Jack Elliott, doing business as Trans Texas Properties. Appellant’s suit was on a sworn account for $622.78, and attorney’s fees, for newspaper advertising services furnished to Trans Texas Properties allegedly at the request of Filip and Elliott. After trial to the court, a take-nothing judgment was entered in favor of Elliott, and a judgment for $622.78 and attorneys’ fees was entered against Filip in favor of appellant. Appellant has taken an appeal from the take-nothing judgment in favor of appellee Elliott. We will affirm the judgment.

Appellee’s basic defense to appellant’s suit was that he had no financial interest in Trans Texas Properties and was not liable for debts of that business.

Upon request, the court filed findings of fact and conclusions of law. With regard to appellee’s defense, the court found that Filip was owner of Trans Texas Properties and that appellee Elliott had no character of ownership interest therein. In order to obtain credit for Trans Texas Properties, its employee, Tracey Peoples, represented to appellant that appellee Elliott was an owner of the business. Peoples had no authority from appellee to make that representation. Although appellant relied upon Peoples’ representation in extending credit and rendering the advertising services to Trans Texas Properties, appellant made no effort to verify the accuracy of the representation. Moreover, appellee did not hold himself out to appellant as having an ownership interest in Trans Texas Properties.

The court concluded that Filip, as owner of Trans Texas Properties, was liable to appellant for the advertising services. The court concluded further that Elliott was not liable because he was not an owner of Trans Texas Properties, because he did not hold himself out as an owner of that business, and because he did not authorize anyone to represent him as an owner of Trans Texas Properties.

Upon appellant’s request for additional findings and conclusions, the court found that in the exercise of ordinary care, Elliott should have known that Peoples told appellant that he was an owner of Trans Texas Properties.

Appellant claims error by two points. Point of error one is that the court’s finding that Elliott did not authorize Peoples to tell appellant that he was an owner of Trans Texas Properties was so against the great weight and preponderance of the evidence as to be manifestly unjust.

Point of error one requires this Court to consider and weigh all of the evidence and to set aside the court’s finding and remand the cause for a new trial if this Court concludes that the finding was so against the great weight and preponderance of the evidence as to be manifestly unjust, regardless of whether the statement of facts contains some “evidence of probative force” in support of the finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), Garwood, The Question of Insufficient Evidence on Appeal, 30 Texas L.Rev. 803 (1952).

Peoples, the employee of Trans Texas Properties, completed and delivered a credit application to appellant to obtain newspaper advertising from appellant. The credit application listed Elliott as an owner of Trans Texas Properties. With respect to her authorization to make that representation, Peoples testified that Elliott was aware that his name was on the credit application filed with appellant. Elliott testified, to the contrary, that he did not authorize Peoples to represent to appellant that he was an owner of Trans Texas Properties.

In the proper exercise of its function, the court considered the testimony and refused to believe the testimony of Tracey Peoples, and obviously relied upon the testimony of Elliott. The court’s finding was not so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

Appellant’s other point of error is that the court erred in not entering judgment for appellant predicated upon the court’s finding of Elliott’s failure to exercise ordinary care to discover that he had been held out to appellant as an owner of Trans Texas Properties.

Appellant’s argument is bottomed upon the Texas Uniform Partnership Act, Tex. Rev.Civ.Stat.Ann. art. 6132b, § 16(1) (1970). Section 16(1) provides as follows:

“§ 16. Partner by Estoppel
“See. 16. (1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made . . . .”

Prior to the enactment of the Texas Uniform Partnership Act, the rule in Texas was that for liability to be based upon partnership by estoppel, it must be established that the person held out as a partner knew of, and consented in fact to the holding out. Schaeffer v. Speckels, 42 S.W.2d 153 (Tex.Civ.App.1931), reversed on other grounds, 62 S.W.2d 85 (Tex.Comm’n App. 1933, holding approved).

Section 16(1) codifies and enlarges upon the common law of partnership by estoppel. That section imposes a duty on a person to deny that he is a partner once he knows that third persons are relying on representations that he is a partner. We do not read section 16(1) as .creating an affirmative duty upon one to seek out all those who may represent to others that he is a partner.

Appellant argues that § 16(1) means that one who negligently holds himself out or permits himself to be held out as a member of a partnership relationship is estopped to deny such partnership relationship as against third persons who in good faith relied on the existence of such apparent partnership and extended credit thereon. Branscome v. Schoneweis, 361 F.2d 717 (7th Cir. 1966). In Branscome, the Seventh Circuit construed Ill.Rev.Stat. ch. 106½ § 16(1) (1952), which is identical to the Uniform Partnership Act and Tex.Rev.Civ.Stat.Ann. art. 6132b, § 16(1) (1970). The court held Schoneweis personally liable for debts of the company because he negligently held himself out to be a partner.

In the case at bar, and in the terms of § 16(1), appellant’s factual theory was that appellee consented to Peoples’ representation to appellant that appellee was a partner in Trans Texas Properties. Appellant, however, failed in its burden to convince the trier of fact that appellee consented for Peoples to represent that appellee was a partner in Trans Texas Properties. Appellant’s point of error is overruled.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Robert TREMBATH, Individually and d/b/a Landscape Maintenance and Construction Company, Petitioner, v. Jessie M. DAVIS, d/b/a Earl’s Air Cooled Engine Service, Respondent.
    No. 12461.
    Court of Civil Appeals of Texas, Austin.
    June 30, 1976.

      Richard E. Kammerman, Earl L. Yeakel, III, Kammerman, Yeakel, Hineman & Trickey, Austin, for petitioner.
    Will Cowan, Austin, for respondent.
   PHILLIPS, Chief Justice.

This case is before us on writ of error from a default judgment entered by the district court in favor of respondent Jessie M. Davis, doing business as Earl’s Air Cooled Engine Service. Respondent had brought suit against Robert Trembath, individually and doing business as Landscape Maintenance and Construction Company, in the amount of $2,286.09 which included $750 in attorney’s fees. We reverse this judgment and remand the cause to the district court for a new trial.

Respondent filed suit on a sworn account against petitioner Trembath on September 30, 1975, alleging in general terms that he had sold petitioner goods, wares, merchandise, and provided material and labor for which petitioner had failed and refused to pay. Respondent claimed damages for $1,536.09 and asked for attorney’s fees of $750.

Petitioner failed to file an answer and default judgment was entered by the district court awarding respondent $2,286.09. Petitioner neither appeared personally nor through counsel, nor participated in the trial of this cause prior to the entry of default judgment. On November 5, 1975, petitioner attempted to file an original answer, and shortly thereafter filed a timely motion to set aside judgment and motion for new trial. No action was taken on these motions, and the motion for new trial was overruled by operation of law. Thereafter, on March 1, 1976, petitioner filed a petition for writ of error to this Court.

Petitioner is before us on three points of error, the first two being the error of the trial court in rendering judgment against him because of insufficient evidence of a sworn account in that the invoices attached as exhibit “A” to plaintiff’s original petition did not describe the goods sold or the services rendered, and also, that the same exhibit “A” contains conflicting amounts that are due and owing by petitioner. We sustain these two points. Consequently, we do not reach petitioner’s third point complaining of the awarding of attorney’s fees.

Respondent’s original petition, standing alone, is insufficient to support the judgment. The attached exhibit “A” in support of plaintiff’s allegations consists of a one-page statement listing a series of dates, invoice numbers and amounts, and nothing more. There is no indication in the petition or exhibit of what goods or services each invoice number represents. In addition, it is impossible to ascertain with any degree of certainty the method by which respondent reaches the total amount upon which he bases his suit. See Unit, Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330 (Tex.Civ.App.1975, writ ref. n.r.e.); Big K Furniture Company v. Covey Company, 511 S.W.2d 329 (Tex.Civ.App.1974, no writ).

No statement of facts accompanies the transcript. The judgment recites only that petitioner failed to appear, that respondent’s cause of action is based on a liquidated demand, and that the court found that respondent was entitled to default judgment.

Respondent maintains that the judgment should be affirmed in spite of the inadequacy of Exhibit A, contending that unless the record affirmatively discloses that the trial court considered no evidence other than the exhibit, it must be presumed that evidence sufficient to support the judgment was heard. Alexander v. Texoma Wholesale Jewelers, 307 S.W.2d 631 (Tex.Civ.App.1957, writ ref. n.r.e.).

Petitioner relies on Big K Furniture Company, supra, where the default judgment was reversed because of the insufficiency of the record to uphold the sworn account.

In Alexander, the judgment stated “ ‘. . . the court proceeded to examine and hear the evidence . . .’” thus giving rise to a presumption that other evidence was heard in support of the judgment. In Big K Furniture the judgment recited that it was “soundly based on an affidavit and statements for goods . .” The affidavit and statement were deficient; consequently, the judgment could not stand.

Neither of the above two eases is directly in point. In the case at bar, no mention is made in the judgment that the court heard any evidence at all, but the judgment does not affirmatively indicate that the court heard no evidence.

In our judgment, Ero Industries, Inc. v. Be-In Buttons Co. of Houston, 473 S.W.2d 677 (Tex.Civ.App.1971, no writ), is applicable to the fact situation here. There the court held that in considering the sufficiency of a judgment without a statement of facts, where the judgment indicated that evidence was heard and considered, it must be presumed that the evidence was sufficient to support the judgment. However, the court held that where the only reasonable conclusion that could be reached from the recitals in the judgment is that no evidence was heard, and that the court had before it only the pleadings and had based its judgment thereon, the presumption that evidence sufficient to support the judgment was heard would not apply.

In the case at bar, the only reasonable conclusion that can be found by the language of the judgment is that the petition and the exhibit were the sole basis for the judgment; consequently, we reverse the judgment of the trial court and remand the cause to the district court for a new trial.

Reversed and Remanded.


author: ROBINSON, Justice.

text:
    BROWN-McKEE, INC., Appellant, v. WESTERN BEEF, INC., Appellee.
    No. 8605.
    Court of Civil Appeals of Texas, Amarillo.
    June 30, 1976.
    Rehearing Denied July 26, 1976.

      Key, Carr, Evans & Fouts (Donald M. Hunt), Lubbock, for appellant.
    Gibson, Ochsner, Adkins, Harlan & Han-kins (Wayne P. Sturdivant), Amarillo, for appellee.
   ROBINSON, Justice.

Plaintiff Brown-MeKee, Inc., as contractor, and the predecessor of defendant Western Beef, Inc., as owner, made a written contract for the construction of an addition to owner’s feed lot. The feed lot was completed and the contract price paid. Brown-McKee filed this suit for the expenses which it claims it incurred because of the presence of rock underlying the land, (1) alleging that defendant’s president fraudulently induced it to enter the contract by representing that a survey had been made which showed that there was no rock underlying the land when he knew that rock was there and (2) alleging, in the alternative, mutual mistake as to the presence of rock. The trial court rendered judgment on a jury verdict for defendant Western Beef, Inc. Plaintiff appeals. Affirmed.

The portion of plaintiff’s pleadings which alleges a fraudulent representation follows:

. Plaintiff was induced to enter into such contract by the fraud of Defendant. In this connection, it was represented to Plaintiff, prior to execution of the contract, after express inquiry had been made by Plaintiff as to the existence or not of rock, that a survey had been made of the land on which the feed lot was to be constructed, that such survey, including test holes showed that there was no rock underlying such land. Such representation was made by the President of Union County Feed Lot, Inc., H. A. Foster, at a time when Plaintiff did not know that such rock was underlying such land, but which fact was well known to Foster.

The contract in question was executed on September 11, 1968, and provided that all work be substantially completed by October 31, 1968, and for final completion and clean up by November 10, 1968. It provided for monthly partial billings of the contract price. The evidence shows that Brown-McKee’s representatives William Schau-mann and Paul Furr went to the site of the feed lot and looked it over for approximately two hours on the day the contract was executed. H. A. Foster, the Chairman of the Board for Western Beef, and R. L. Bland, the Vice President of Western Beef, among others, were present at the negotiations. Within ten days after execution of the contract and almost immediately on beginning construction, Brown-McKee encountered rock. The first subcontractor on the job, who was to dig post holes, quit after three or four working days because he was running into rock which was breaking up his equipment. Brown-McKee did not seek to rescind the contract but continued to perform under it, sending partial billings as provided for in the contract on September 30 and October 31,1968. Brown-McKee finished the work within the time provided by the contract. The contract price, as well as the price for certain extra construction ordered and performed under the contract, was paid by defendant Western Beef. In November or December and after the completion of the contract, Brown-McKee’s representative in a telephone conversation with Foster for the first time sought to claim additional expenses because of unforeseen rock. On January 10, 1969, more than 50 days after completion of the contract, the first bill for additional expenses claimed because of the presence of rock was sent to Western Beef. Western Beef refused to pay for the expenses over the contract price, which plaintiff alleges it incurred because of the presence of underlying rock.

Plaintiff contends that the court erred in not rendering judgment for it for the expenses incurred because of rock on a theory of fraud in the inducement of the contract. It contends that all of the elements of actionable fraud were either found by the jury or established as a matter of law. The elements of actionable fraud in Texas were set out by the Supreme Court in Custom Leasing, Inc. v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138, 143 (Tex.1974), quoting with approval the following language from Wilson v. Jones, 45 S.W.2d 572, 573 (Tex.Com.App.1932, holding approved):

The authorities announce the general rule that to constitute actionable fraud it must appear: (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 thereby suffered injury. The gist of an action based upon fraud is found in the fraud of defendant and damage to plaintiff. Each of these elements must be established with a reasonable degree of certainty, and the absence of any one of them will prevent a recovery. 26 C.J. pp. 1062, 1063, 1064, and 1065; Wortman v. Young (Tex.Civ.App.) 221 S.W. 660.

In the case before us, the question of the alleged representation by Foster was submitted to and answered by the jury as follows:

SPECIAL ISSUE NO. 1
(a) Do you find from a preponderance of the evidence that defendant, its agents or employees, represented to plaintiff that there was “no rock” underlying the construction site?
Answer “Yes” or “No.”
Answer: Yes.

The jury also found that such representation was material, false, and made with the intention that it be acted on by plaintiff; and that plaintiff did act in reliance on the representation to its damage. The jury refused to find that the defendant knew that the representation was false. No issue was requested and none submitted inquiring whether the representation was made recklessly without any knowledge of its truth and as a positive assertion. On appeal plaintiff contends that this second alternative of element No. (3), that the representation was made recklessly without knowledge of its truth and as a positive statement, was established as a matter of law.

Plaintiff went to trial on its Original Petition, which contains only the allegation that Foster represented that a survey showed no rock at the construction site, when it was “well known” to him that there was rock under the land. Plaintiff’s pleadings contain no allegation that the representation was made recklessly and without knowledge of its truth. “Plaintiff’s Motion to Disregard Special Issue 5 and Motion for Judgment” relies solely on the jury findings of fraud and contains no contention that an element not submitted to the jury was established as a matter of law. Plaintiff’s Amended Motion for New Trial alleges that the jury found all of the elements in its answers to the first Special Issue, and does not allege that an element of fraud was established as a matter of law.

Plaintiff did not urge what it terms its “reckless representation” fraud theory in the trial court, but asserts it for the first time on appeal. An appellant is limited to the theories upon which the case was tried, and he may not urge new theories for the first time on appeal. The State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576 (1962); Birge v. Toppers Menswear, Inc., 473 S.W.2d 79 (Tex.Civ.App., Dallas 1971, writ ref’d n. r. e.). Nevertheless, the point, if before us, must be overruled.

To show a representation by Foster, Brown-McKee offered the testimony of William Schaumann, Brown-McKee’s agent, who solicited the contract, and Paul Furr, Vice President of Brown-McKee. Schau-mann testified to Foster’s statements concerning rock during the negotiations at the feed lot as follows:

And I recall that Mr. Foster fielded this question at the time that, no, that there was not any rock in the immediate area of our proposed construction, and that he had knowledge of. And I don’t know the nature of the survey, or who ran it, or why they ran it, but that a team had explored this area sometime previously.
And as I recall, I can’t say that the word “drillings” was used, but there was some excavations made on an orderly point to sample the swirls in this area, to see if there was rock there. And he said there was no indication of any rock in this area.

Paul Furr, the Vice President of Brown-McKee, testified only that Foster related that “he had had surveys run and they didn’t show there to be any rock in that area.”

Brown-McKee also offered the deposition testimony of R. L. Bland, Western Beef’s Vice President. Bland testified that they had a survey made before the feed lot company bought the property; that the survey was made by the soil conservation people for the man who owned the land; that the man doing the survey dug several strings of holes out across the “whole set of property”; and that the survey showed no more rock than was visible to the eye.

To show that the representation was recklessly made, Brown-McKee relies on Foster’s statements at the trial as follows:

. I can’t see down past the dirt. * * * * * *
And I am no judge of what is under the earth. You know, all I can tell you is what we had.

and

I had no idea they would get that much rock.

These statements, in context and together with the rest of the testimony, do not establish as a matter of law that Foster made the representation as a positive statement and that he made it recklessly without knowledge of its truth. The evidence, at most, raised a fact issue which was not submitted to the jury.

Rule 279, Texas Rules of Civil Procedure, provides in part:

Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; but where such ground of recovery or of defense consists of more than one issue, if one or more of the issues necessary to sustain such ground of recovery or of defense, and necessarily referable thereto, are submitted to and answered by the jury, and one or more of such issues are omitted, without such request, or objection, and there is evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted issue or issues in support of the judgment, but if no such written findings are made, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment.

Since the specific issue on the omitted alternative element of fraud was neither requested nor submitted, and written findings were neither requested by the parties nor made by the trial court, the issue is deemed to have been found by the court in such a manner as to support the judgment and thus, in this case, adversely to plaintiff.

We conclude that plaintiff has failed to establish all the elements of a cause of action for fraud in the inducement.

Pleading in the alternative, plaintiff alleges that if Foster did not know of the existence of rock underlying the construction site, then the contract was entered under a mutual mistake of fact. It contends that, in that case, the contract does not cover the extra materials and labor made necessary by the existence of rock and either defendant has impliedly promised to pay for the reasonable value of that material and labor or, in the alternative, is unjustly enriched.

There is a distinction between extra work and work provided for in the contract. Extra work is work arising outside and independent of the contract, something not required in its performance. City of Houston v. L. J. Fuller, Inc., 311 S.W.2d 285 (Tex.Civ.App., Houston 1958, no writ). In the case before us, the work and consequent expense incurred in digging in rock was necessary in the performance of the very thing which Brown-McKee contracted to do. It was an incident of the construction of the addition to the feed lot.

The facts in City of Dallas v. Shortall, 131 Tex. 368, 114 S.W.2d 536 (1938) are in some respects similar to those before us. There, the plaintiff sought to recover the expense incurred when the formation through which he was to build a tunnel was found not to be solid rock as anticipated. The court in Shortall said that a person who agrees to do for a fixed sum a thing possible to be performed will not be excused or become entitled to additional compensation because unforeseen difficulties are encountered. It held that to justify recovery in such cases some element of deception which in contemplation of law is fraudulent or amounts to bad faith must be proved. In the case before us the plaintiff has failed to prove that defendant acted in bad faith or made fraudulent misrepresentations and has not established that defendant had information which it was under an obligation to disclose, but withheld.

Plaintiff’s evidence shows that a “rock clause” is a common clause in construction contracts of this nature but it does not contend that the parties agreed on such a clause, which would have provided for additional compensation if rock were encountered, and it does not contend that such a clause was omitted from the contract by mistake. The mistake of fact concerning the presence of underlying rock at the site did not go to the substance of the contract or its subject matter, but went to its inducement only. The rule in this regard is stated in 13 T.J.2d Contracts § 255 pp. 477, 478, as follows:

To enable a party to a written contract to be relieved from liability thereunder on the ground of a mutual mistake of fact, the mistake in question must deal with a material part of the contract itself. That is, the mistake must involve the subject matter of the contract and the substance thereof; it may not be related to a mere collateral matter, such as the inducement for the agreement.

Cavanagh v. Tyson, Weare & Marshall Co., 227 Mass. 437, 116 N.E. 818 (1917) involves facts similar to those before us. There the plaintiff sued the defendant for the additional cost of driving piles for construction of buildings on a pier on the grounds that the plans available in the office of the port directors indicated that the soil was soft and easily penetrable. The soil in fact consisted largely of rock through which it was difficult to drive piles. The court said:

Upon the facts the question presented is whether the erroneous belief of the plaintiff and defendant is a mutual mistake of fact of sufficient importance to make the contracts void. Such result can follow only when the mistake relates to a fact which is of the very essence of the contract, the material element in the minds of both parties, and material in the sense that it is one of the things contracted about. * ⅜ *
In the case at bar the character of the fill through which the piles were to be driven was of importance only in the determination of the price to be demanded and paid for the performance of the work. Had the burden of performance proved less than anticipated it will scarcely be claimed that the defendant could in an appropriate action have had relief from the contract through rescission or to recover any excess in payment over reasonable compensation. .
In the case at bar the mistake of fact is collateral to the essential thing contracted about and therefore does not invalidate the contract.

Plaintiff cites the case of Mason v. Peterson, 250 S.W. 142 (Tex.Com.App.1923, judgment adopted), which involves a misrepresentation concerning land conveyed. There are numerous Texas decisions holding that a misrepresentation by the vendor regarding the quantity of land sold or the quantity of a particular character is a material representation going to substance of the contract itself and will entitle the vendee to equitable relief. Such eases do not control the question before us.

We conclude that the trial court did not err in denying plaintiff recovery on its theory of mutual mistake.

Brown-McKee by appropriate point of error challenges the legal and factual sufficiency of the evidence to support the submission of and jury answer to Special Issue No. 5. In response to that issue, the jury found that Brown-McKee failed to exercise reasonable diligence to discover the presence of rock before it commenced work under the contract. The evidence bearing on this issue is in conflict, and includes lengthy testimony concerning the nature of the site and the extent of the visible outcroppings of rock in the area. We will not detail it here. After considering the evidence in the light most favorable to the verdict, we find that there is some evidence to support the submission of the issue and, after considering all of the evidence including that opposed to the jury answer, we conclude that the evidence is sufficient to support the answer, and that the answer is not against the great weight and preponderance of the evidence.

The holdings on the questions of fraud and mutual mistake are dispositive of the case before us, and we do not reach defendant Western Beef’s contentions that Brown-MeKee is precluded from recovery because it proceeded to incur damages after it should have known and after it knew of the presence of rock. Nor do we reach plaintiff Brown-McKee’s remaining points of error.

The judgment of the trial court is affirmed.


author: OSBORN, Justice.

text:
    FIRST SAVINGS AND LOAN ASSOCIATION OF EL PASO and W. C. Peticolas, Trustee, Appellants, v. Carolina G. AVILA, Appellee.
    No. 6511.
    Court of Civil Appeals of Texas, El Paso.
    June 30, 1976.
    Rehearing Denied July 28, 1976.
    Peticolas, Luscombe, Stephens & Windle, W. C. Peticolas, El Paso, for appellants.
    Malcolm McGregor, Inc., Steven Bercu, Philip T. Cole, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a permanent injunction which enjoined the foreclosure sale under a deed of trust lien on property owned and occupied by the Appellee. We reverse the judgment of the Trial Court and the injunction is dissolved.

The Appellee has lived at 6146 Tampa in El Paso since 1969. The property was actually deeded to her in March, 1963, and a vendor’s lien was retained in favor of El Paso Federal Savings and Loan Association to secure payment of a note in the amount of $5,000.00. Albert Castle was also named as a grantee in the deed since he was a guarantor on the note. In 1971, Appellee got behind on her note payments and borrowed approximately $185.00 from her brother, Ray Garcia, to make such payments. On September 20, 1971, Appellee and Albert Castle executed and delivered to Ray Garcia a warranty deed to the property in which he assumed and agreed to pay the balance owing upon the note payable to El Paso Federal Savings and Loan Association. The deed was filed of record in October, 1971, but Appellee continued to remain in possession of the house located on the property in question. She testified that she did not know that she had signed a deed to her brother; she did know when subsequent payments were made to El Paso Federal Savings and Loan Association that the payment book only showed her brother’s name.

On July 21, 1972, Ray Garcia, as the record owner of the property, obtained a loan from the Appellant, First Savings and Loan Association of El Paso, and executed a deed of trust covering the property in question to secure a promissory note in the amount of $5,067.00. On November 1,1973, Ray Garcia deeded the property back to his sister by a deed which made no reference to the lien in favor of the Appellant. After having paid the note down to about $2,500.00, Ray Garcia defaulted and Appellant posted notices for a trustee’s sale and this suit to enjoin the sale resulted.

The Appellants present six points of error attacking certain findings of fact and five points of error attacking certain conclusions of law. All points are presented and argued together. The appeal actually presents one basic issue, and that is whether a mortgagee must ascertain the rights of the prior owner and present occupant of property being mortgaged when the occupant has been living on the property for less than a year since deeding the property to the mortgagor.

The Appellant, First Savings and Loan Association of El Paso, as a mortgagee, is basically in the same position as a purchaser of the property, at least to the extent of the money loaned to the mortgagor. Graves v. Guaranty Bond State Bank, 161 S.W.2d 118 (Tex.Civ.App.—Texarkana 1942, no writ). With regard to possession constituting notice, the general rule is set forth in 59 Tex.Jur.2d, Vendor and Purchaser § 764, as follows:

“If real property is not in the possession of the vendor, the purchaser may not assume that the possessor is holding under or in subordination of the title as shown by the record. Possession is evidence of ownership and is said to be equivalent to registration in that it gives constructive notice of the possessor’s rights. But its office is merely to put a purchaser on inquiry; it does not necessarily determine the nature of the inquiry or of whom it should be made.”

The nature of the' inquiry was discussed at length in Eylar v. Eylar, 60 Tex. 315 (1883). In that case, J. F. Eylar and wife conveyed the property in controversy to O. A. Eylar, by deed absolute in form, containing a clause of general warranty. After the deed, J. F. Eylar remained in possession of the property. O. A. Eylar subsequently conveyed the property to his mother, Ann A. Eylar. In this suit, it was contended that the deed to O. A. Eylar should only operate as a mortgage, but there was no evidence that Ann A. Eylar had actual knowledge that the instrument was intended by the parties to be a mortgage. In passing upon the issue before it, the Court said:

“It would seem that the sole office which possession performs, in the matter of notice, is to put a person desiring to purchase upon inquiry, and that it has no effect in determining what the inquiry shall be, or of whom it shall be made.
“The policy of the law, as evidenced by our statutes, requires all conveyances of land or interests therein for a term longer than one year to be evidenced by writing, and when parties place, in this the most certain and enduring form, the evidence of their right, they ought to be held, so far as third persons are concerned, to have therein spoken truly in respect to the title to the land to which the conveyance relates.
“That all persons who may deal with persons claiming land may have the means of knowing in whom titles to land rest, and that no one may buy what appears to be a good title, when another person may have better right not made public, the law requires all persons, for the protection of innocent purchasers and creditors, to register their titles to land.
“Such being the case, can it be said, even if possession is sufficient in all cases to put purchasers upon inquiry, that such inquiry is not prosecuted sufficiently far, when the person who desires to buy examines the records of the county and finds on record a deed from the person in possession to the person who offers to sell, and who under that deed asserts title.
“If the inquiry is prosecuted to the highest source which the law of the land declares shall exist for the determination of title, and to the source which the parties have created as the highest evidence of their respective rights, can it be true that it is further necessary to examine sources inferior and make inquiry as to whether or not there are claims, or even rights, in others not evidenced as the law requires, or otherwise the purchaser be charged with constructive notice of secret vices in the title which he buys.
“To so hold, we are of the opinion, would be to strike at the very foundation of the policy upon which registration laws rest.
* *
“By the deed in question, the parties who now assert claim through a secret agreement declared in the most solemn form that the land in controversy was the property of O. A. Eylar; they permitted that declaration to be placed on record for the very purpose of giving information to all persons as to the true ownership.
“Such being true, can the simple fact that they remained in possession of the land which they had declared belonged to another, which they might lawfully do as the tenants at sufferance or otherwise of such other person, make it requisite for any person who may desire to buy from the person whom they have so declared to be the owner, to inquire of themselves whether or not they had uttered the truth in their deed, whether or not their own declaration was false?
“We are of the opinion, under the facts in this case, that a purchaser from O.A. Eylar was not bound to inquire of the appellees what right they had in the land; that the inquiry was sufficiently prosecuted; prosecuted as far as a prudent man, having a due regard to the rights of others, and to his own protection, would be bound to prosecute it, when he looked to the record and there found that 0. A. Eylar was declared by the very persons in possession to be the true and absolute owner of the land.”

The same rule with regard to both a purchaser or mortgagee is set forth in Dallas Trust & Savings Bank v. Pickett, 59 S.W.2d 1090 (Tex.Civ.App.—Waco 1933, writ dism’d), where the Court said:

“* * * The well-established rule is that a purchaser or mortgagee from a vendee whose vendor remains in possession is not, merely by virtue of such possession alone, charged with notice of a secret claim in such property by such prior vendor where the purchaser or mortgagee relies on a deed duly executed and delivered by such prior vendor. . It is said that such purchaser or mortgagee has a right to rely upon such deed as a complete divestiture of title. Eylar v. Eylar, 60 Tex. 315; Guaranty Bond State Bank v. Kelley (Tex.Com.App.) 13 S.W.2d 69.”

The rule is also set forth in 5 Lange, Texas Practice, Land Titles and Title Examination § 816 at 261. This Court followed the rule in Dorsey v. Temple, 103 S.W.2d 987 (Tex.Civ.App.—El Paso 1937, writ dism’d by agr.). Also see: Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.), cert. denied, 385 U.S. 901, 964, 87 S.Ct. 199, 17 L.Ed.2d 132 (1966).

An exception to the rule was noted in Anderson v. Barnwell, 52 S.W.2d 96 (Tex.Civ.App.—Texarkana 1932), aff’d, 126 Tex. 182, 86 S.W.2d 41 (1935), where the Court noted that continued possession for a period of six years, after having executed a conveyance, along with other evidences of ownership, was a circumstance sufficient to put a purchaser on inquiry of the rights of the possessor, and that such inquiry should go beyond the prior deed and that alone. We do not believe that such exception to the general rule announced in the Eylar case is applicable to the facts in the case now before the Court.

The Appellee having executed a general warranty deed which was absolute on its face and which recited that the grantee had assumed and agreed to pay the balance owing on the original vendor’s lien note, and that deed having been recorded and relied upon by the Appellant at the time it made a loan to the then record owner, the mortgagee was entitled to foreclose its lien upon default in payment since there is no evidence that the mortgagee actually knew that the deed from the Ap-pellee to her brother was only intended as a mortgage or security agreement.

The Appellee contends that the evidence as to a title search made by the Appellant was hearsay and, further, that the search was made on the day prior to the actual loan and execution of the deed of trust, and that therefore the Appellant cannot claim that it made the loan knowing that Ray Garcia was the record owner. This argument cannot prevail since the record establishes that the deed to Ray Garcia was of record at the time of the loan and the Appellant, like all of the world, was charged with notice under the recording statute. Art. 6646, Tex.Rev.Civ.Stat.Ann.

We sustain Appellants’ Points of Error Numbers Four and Seven through Eleven. The judgment of the trial Court is reversed, it is ordered that Appellee take nothing, and the permanent injunction is dissolved.


author: HALL, Justice.

text:
    Fred HILT, Jr., Appellant, v. Martha E. KIRKPATRICK, Appellee.
    No. 5553.
    Court of Civil Appeals of Texas, Waco.
    June 30, 1976.
    Rehearings Denied July 29, 1976.

      Ñaman, Howell, Smith & Chase, Albert Witcher, Waco, for appellant.
    Charles M. McDonald, Waco, for appellee.
   HALL, Justice.

The appellant and the appellee were divorced on August 13, 1968, in the District Court of Kit Carson County, Colorado. Under the terms of the divorce judgment, the custody of their two children, a son born in 1964 and a daughter born in 1966, was awarded to the appellee. The appellant was granted reasonable visitation rights, including the right to have the children visit with him in Colorado six weeks of each year and on certain holidays. At the time of the divorce, the parties were residents of the State of Colorado, and both were before the court. In 1969 the appellee moved with the children to Texas, where they have since resided.

In June, 1975, the appellee brought this suit in McLennan County, Texas, the County in which she and the children reside, pleading the divorce decree and its terms, and seeking “for the best interest and welfare of the children” (1) that she be appointed managing conservator of the children, (2) a modification of the appellant’s visitation rights which would limit him to visitation with the children only in the ap-pellee’s home, and (3) an injunction restraining the appellant from otherwise contacting the children or removing them from McLennan County, Texas. In response to these pleadings, the appellant filed a special appearance in compliance with Rule 120a, Vernon’s Tex.Rules Civ.Proc., objecting to the jurisdiction of the Texas court over his person. In the plea he alleged that he is a resident of the State of Colorado, that he has not been served with process in Texas, that he is not amenable to any process issued under Texas law, and that the Texas Court accordingly lacked jurisdiction over his person. He moved for dismissal from the suit or for other “appropriate order.”

The trial court sustained the special appearance as to the injunctive relief sought by the appellee and dismissed that phase of the case, but overruled the special appearance as to “all [other] matters raised by plaintiff’s pleadings.” The court then proceeded to hear the remaining questions raised by the appellee’s petition. Without waiving his special appearance, the appellant participated in the trial. At the conclusion of the hearing, the court appointed the appellee managing conservator of the children, reduced the number of weeks the appellant could have the children with him in Colorado each year, required the appellant to post a $25,000 bond with the court guaranteeing prompt return of the children from visits with him in Colorado, and required the appellant to pay all costs and expenses for transporting the children to and from Colorado. These orders are based on findings expressed in the judgment “that the circumstances of the children have materially and substantially changed since the entry of the custody and visitation orders” made by the Colorado Court and that “the visitation provisions of said orders are now inappropriate and unworkable.” We reverse the order on the special appearance, but we affirm the remainder of the court’s rulings.

In May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953) the court ruled that a parent’s right to custody of a child is a personal right “far more precious to appellant than property rights” which cannot be affected without in person-am jurisdiction over the parent. The appellant correctly asserts that Texas makes no distinction between custody rights and visitation rights insofar as notice and hearing on a motion to modify are concerned. V.T. C.A., Family Code § 14.08(a), (b).

The appellant is a resident of Colorado. He was served with process in Colorado.

In Mitchim v. Mitchim, 518 S.W.2d 362, 366 (Tex.Sup., 1975) the court said that in personam jurisdiction may be acquired over a non-resident defendant in a case of the nature of this one by extraterritorial personal service of process only if (1) the forum state has a statute authorizing jurisdiction over the person by that process, and if (2) there have been sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy “traditional notions of fair play and substantial justice.”

In our case, the service of process on the appellant in Colorado was made “by a disinterested person” and by “certified mail, return receipt requested,” satisfying the requirements of both Rule 108, Vernon’s Tex. Rules Civ.Proc., and V.T.C.A. Family Code, § 11.09(b). However, contrary to the appel-lee’s contention, neither the rule nor the statute authorizes jurisdiction over the person of the appellant. Roumel v. Drill Well Co., 270 F.2d 550, 554 (5th Cir. 1959); Aamco Automatic Trans., Inc. v. Evans Adv. Ag., Inc., 450 S.W.2d 769, 771 (Tex.Civ.App.—Hou. 14th, 1970, writ ref., n.r.e.) In fact, at the time the appellant was served, in June, 1975, Texas did not have a longarm statute applicable to cases like this, although there is one now. See V.T.C.A. Family Code, § 11.051, eff. September 1, 1975.

The appellant’s plea to the jurisdiction should have been sustained.

The appellant argues that because the court lacked jurisdiction over him, the judgment rendered on the merits of appellee’s petition must be set aside and the case should be dismissed. We disagree.

It is settled law that a Texas court may exercise jurisdiction over matters relating to custody of a child who is domiciled in the State, when called upon to act for the best interest of the child. Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 168 (1938); Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551, 556 (1946); Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 878 (1948). In the Wicks case, the court said (at 208 S.W.2d 878):

The principle underlying jurisdiction of the subject matter in child custody cases is the welfare of the child, but involving also the right, and, for that matter, the duty of a State, being the relatively independent sovereign that it is, to look after the welfare of individuals within its borders, as well as the duty of such State to contribute toward the orderly administration of justice under our federal system by paying due heed to existing relationships on the part of the child or other persons concerned with other states, whether within or without the scope of the full faith and credit clause of the federal constitution.

In May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957), and other cases, the court held it was not necessary to accord full faith and credit to child support orders where the court lacked in personam jurisdiction over the defendant. However, the court did not hold the orders were void for want of jurisdiction or that they could not be accorded full faith and credit.

The judgment in question is not void. Undoubtedly it will be recognized by the courts of Texas. Whether another jurisdiction such as Colorado will give it full faith and credit is not a question for our decision.

The appellant’s remaining contentions question the legal and factual sufficiency of the evidence to support the findings upon which the court based its rulings regarding visitation, payment of the children’s expenses to and from Colorado, and the appellant’s posting bond. All are overruled.

The order overruling the special appearance is reversed, and judgment is rendered dismissing the appellant from this cause. In all other respects, the orders appealed from are affirmed.

The costs of this appeal are taxed equally against the parties.


author: CIRE, Justice.

text:
    Rudolph DUGAR, Appellant, v. The STATE of Texas, Appellee.
    No. 1427.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 30, 1976.
    Rehearing Denied July 21, 1976.

      Jean Hosey, Hosey, Presnall & Hosey, Galveston, for appellant.
    Ronald L. Wilson, Crim. Dist. Atty., Galveston, for appellee.
   CIRE, Justice.

This is an appeal from a judgment ordering forfeiture to the State of gambling proceeds. On December 6, 1974 appellant Rudolph Dugar was arrested in a gambling raid, and $7,692.39 was seized from him at that time. On December 16,1974 the State of Texas brought suit in the 10th Judicial District Court of Galveston County, asking that the money be forfeited to the State as gambling equipment and paraphernalia under Article 18.18 of the Texas Code of Criminal Procedure. On March 18, 1975 appellant was convicted in the 122nd Judicial District Court of Galveston County of the offense of “Gambling Promotion: Operating a Gambling Place”. Thereafter, on October 30, 1975, after a hearing in the 10th Judicial District Court, the money seized from appellant was ordered forfeited.

Article 18.18, Texas Code of Criminal Procedure, is entitled “Disposition of gambling paraphernalia, prohibited weapon, criminal instrument”. Section (a) provides:

Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, or an offense involving a prohibited weapon, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, or weapon be destroyed or forfeited to the state. . If gambling proceeds were seized, the court shall order them forfeited to the state .

Sections (b)-(f) provide that if there is no prosecution or conviction following the seizure, a hearing shall be held at which the material seized may be ordered forfeited. This court has recently held that sections (b) and (f) are constitutionally invalid. Rumfolo v. State, 535 S.W.2d 16 (Tex.Civ.App.—Houston [14th Dist.] 1976).

The State contends that this proceeding and order were accomplished under the authority of section (a) and did not violate appellant’s constitutional rights. The State’s original petition was clearly brought under section (b), since it was filed prior to any prosecution or conviction. The court followed the procedures for notice and hearing as set out in section (b). The State asserts that since appellant was convicted of gambling promotion prior to the date of the court’s order, the order was issued pursuant to section (a). Appellant argues that, even if this is true, the order is void because the court lacked jurisdiction even under section (a) to order forfeiture in this case.

Article 18.18, section (a) provides that “[f]ollowing the final conviction . the court entering the judgment of conviction shall order” forfeiture. The 10th Judicial District Court, the court which ordered forfeiture in this case, was not the court which entered the judgment of conviction. We think it is clear that the 10th Judicial District Court did not have jurisdiction under the plain language of section (a) to enter this order.

Appellant also contends the trial court was not authorized to enter its order under section (a) because appellant was not convicted of any of the offenses specified in that section as grounds for forfeiture. We agree. The offenses listed are: (1) possession of a gambling device or equipment or altered gambling equipment, (2) possession of gambling paraphernalia, (3) an offense involving a criminal instrument, or (4) an offense involving a prohibited weapon. The State asserts that the offenses of possession of a gambling device (Tex.Penal Code Ann. § 47.06) and possession of gambling paraphernalia (Tex.Penal Code Ann. § 47.07) are lesser included offenses of the crime gambling promotion: operating a gambling place (Tex.Penal Code Ann. § 47.-03(a)(1)). Reasoning from this premise, the State argues that the court’s authority under the express terms of section (a) to order forfeiture based on conviction for one of the lesser offenses implicitly includes the authority to order forfeiture upon conviction of the greater offense. We do not agree.

We express no opinion as to whether either or both of the gambling offenses specified in section (a) are lesser included offenses of the crime of gambling promotion. But even if the State’s contention on that point were true, it would not follow therefrom that conviction of the greater offense would authorize forfeiture on the basis of the lesser. Forfeiture proceedings are conducted only by virtue of statute. Rumfolo v. State, supra. Article 18.18 is a penalty statute, quasi-criminal in nature, and is to be strictly construed excluding “anything beyond [its] letter even though within [its] spirit.” Gordon v. Busick, 203 S.W.2d 272, 273 (Tex.Civ.App.—Galveston 1947, no writ). We cannot read Article 18.18, section (a) as authorizing forfeiture on thé basis of an offense which is excluded from the list of those expressly named in the statute.

Since we find that the forfeiture of appellant’s property was not authorized under the provisions of Article 18.18, section (a), we do not reach the question of the constitutional validity of that section.

The judgment of the trial court is reversed, and judgment is here rendered that the State return to appellant the money seized from him.

Reversed and rendered.


text:
    Dirk J. STRONCK, III, Appellant, v. Veree H. STRONCK, Appellee.
    No. 1388.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 30, 1976.
    Rehearing Denied July 21, 1976.

      R. Mayo Davidson, W. H. Davidson, Jr., Davidson & Davidson, Houston, for appellant.
    William H. White, Reynolds, White, Allen & Cook, Houston, for appellee.
   CIRE, Justice.

This is an appeal from the child custody and visitation portions of a divorce decree. The case was tried without a jury in the Court of Domestic Relations No. 4, Judge Peter Solito presiding. On August 28,1975 Judge Solito announced the court’s judgment from the bench and noted it on the docket sheet. Thereafter, on October 9, 1975, Judge Solito resigned as judge of the court of domestic relations, in order to assume the district bench and Judge Bill Elliott was appointed his successor. On November 19, 1975 appellee filed her motion for entry of judgment, and on November 21, 1975 Judge Elliott signed the divorce decree. Appellant Dirk Stronck gave notice that he would appeal that portion of the decree granting custody of the parties’ child to appellee Veree Stronck, subject to visitation by appellant “at reasonable times and places.”

Appellant complains there is error in the trial court’s judgment, in that the judgment signed by Judge Elliott does not conform to the agreements of the parties and the judgment announced by Judge Solito. Appellant’s primary contention on this appeal, however, is that he is unable to obtain a statement of facts and is thereby entitled to a remand for a new trial.

If, after exercising due diligence, an appellant is unable to obtain a statement of facts, the case must be remanded for another trial. Brown v. Brown, 520 S.W.2d 571, 576 (Tex.Civ.App.-Houston [14th Dist.j 1975, no writ). Thus, the two questions to be decided are whether appellant has been unable to obtain a statement of facts, and whether he has exercised due diligence in attempting to do so.

Neither the proceedings in the hearing before Judge Solito nor those in any subsequent hearing were recorded by a court reporter. After giving his notice of appeal, appellant compiled a proposed narrative statement of facts, which appellee refused to approve. Appellant then submitted his proposed narrative statement of facts to Judge Elliott for his approval. Judge Elliott would not approve appellant’s statement of facts and entered his “order noting inability to make statement of facts conform to the truth.” Thereafter, appellee compiled her proposed narrative statement of facts which she submitted to Judge Soli-to for his approval. Judge Solito approved appellee’s proposed statement of facts, which has been ordered filed in this court.

Appellant contends he has exercised due diligence to obtain a statement of facts on appeal, and that under Rule 18 of the Texas Rules of Civil Procedure, Judge Solito was not authorized to approve the statement of facts.

There are several methods by which an appellant may obtain a statement of facts for appeal. Either party may request that the court reporter be present and take full notes of the proceedings. Tex.Rev.Civ. Stat.Ann. art. 2324 (Supp.1975-76). It is the duty of the party, or his attorney, to request the presence of the court reporter, and if such request is not made, the right may be waived. Brown v. Brown, 520 S.W.2d at 576. In this case the appellant did not request the presence of the court reporter and has not shown any reason why his right to the presence of a court reporter has not therefore been waived.

Transcription by a court reporter is not required, however, in order to obtain a statement of facts for appeal. Although an appellant may have waived his right to have a court reporter record the evidence, he may still obtain a statement of facts by agreement of the parties or, absent such an agreement, by approval of the trial court. Tex.R.Civ.P. 377. In this case appellant attempted to obtain his statement of facts by agreement of the parties, but was unable to do so. This left him with the third alternative, a narrative statement of facts submitted to the trial court and made by him to conform to the truth. Tex.R.Civ.P. 377(d).

In a situation in which the judge who tried the case has been replaced by another judge, the question of which judge should properly make up the statement of facts has caused considerable confusion in the appellate courts. Article 2248, Texas Revised Civil Statutes, provides that when the term of office of any judge of a district or county court expires, that judge may approve the statement of facts in any case tried while he was on the bench. Courts interpreting Article 2248 have held that the judge who actually tried the case must approve the statement of facts, even though his term of office has expired before he is called upon to do so. Koonce v. City of Mesquite, 382 S.W.2d 309, 314 (Tex.Civ.App.-Tyler 1964, writ dism’d) and authorities cited therein.

Article 2248 applies only to the circumstance in which a judge’s term of office expires prior to his approval of the statement of facts. In the instant case Judge Solito resigned before his term expired. Appellant contends this situation is not controlled by Article 2248, but by Rule 18 which states:

If the judge dies, resigns, or becomes unable to hold court during the session of court duly convened for the term . [and] [i]f a successor to such judge shall qualify and assume office during the term . . . statements of facts and bills of exception shall be approved by him. (emphasis supplied)

We are aware that the First Court of Civil Appeals has held that neither Article 2248 nor Rule 18 applies in the situation where the trial judge resigns, and his successor assumes office, during a term of the court which began after the case was tried. Nehoc Land Co. v. City of Houston, 342 S.W.2d 42 (Tex.Civ.App.-Houston 1961, writ ref’d n.r.e.). Although we realize that our holding is in conflict with that authority, we respectfully express our opinion that by its use of the mandatory term shall, Rule 18 explicitly requires that when a judge resigns from office during an unexpired term of the court and a successor judge takes office before that term of the court expires, it is the successor who must approve all statements of facts proposed after he assumes the bench. See Texas Employers’ Insurance Association v. Ethredge, 263 S.W.2d 815, 816 (Tex.Civ.App.-Dallas 1953), rev’d on other grounds, 154 Tex. 1, 272 S.W.2d 869 (1954). Since Judge Solito had resigned from the bench of the court of domestic relations at the time the statement of facts was proposed in this case, he no longer had the authority to approve such a statement of facts. That authority was vested solely in his successor, Judge Bill Elliott. For this reason, we hold that the statement of facts approved by Judge Soli-to and filed here by the appellee must be stricken from the record of this appeal.

Appellant has exercised due diligence to obtain a statement of facts in this case. He did not waive his right to a record even though he did waive his right to a statement of facts prepared by the court reporter. Strode v. Srygley, 342 S.W.2d 638, 641 (Tex.Civ.App.-Fort Worth 1961, writ ref’d n.r.e.); see Ducoff v. Ducoff, 523 S.W.2d 264, 267 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ); Tex. Family Code Ann. § 11.14(d) (1975). Appellant diligently attempted to obtain a record through the alternative methods prescribed in Rule 377: he tendered a proposed statement of facts to his opposing counsel and, when unable thereby to obtain an agreed statement of facts, he tendered his proposed record for approval by Judge Elliott, the only judge authorized to grant such approval.

Judge Elliott’s order stating that he is unable to approve the proposed statement of facts or to make it conform to the truth establishes that appellant, after using due diligence, has been unable to procure a statement of facts in this case. There is some conflict in authority concerning the duty of the successor judge in this situation. One court of civil appeals has held that when the trial judge is unable to make the statement of facts conform to the truth, a new trial is necessary. Strode v. Srygley, 342 S.W.2d at 641. Another civil appeals court has held it is the duty of the judge upon request to furnish the appealing party a statement of facts, “even to the calling of witnesses for a reproduction of the record in question.” Bradshaw v. Bradshaw, 293 S.W.2d 210, 212 (Tex.Civ.App.-Dallas 1956, no writ); see Southwestern Bell Telephone Co. v. Thomas, 535 S.W.2d 686 (Tex.Civ.App.-Corpus Christi 1976, no writ). The mandatory language both in Rule 18, that the successor judge shall approve statements of facts, and in Rule 377(d), that the judge shall make the statement of facts conform to the truth, cannot be ignored. Therefore, if the successor judge is unable to approve the proposed statement of facts, he should, in his discretion, either hold a hearing in order to reproduce a true record, or if this is not feasible, he should order a new trial.

Appellant having established that he has been unable, after using due diligence, to procure a statement of facts on this appeal, we hold that portion of the trial court’s judgment pertaining to the managing con-servatorship, visitation, and support of the parties’ minor child must be reversed and remanded for a new trial.

Reversed and remanded.

COULSON, J., dissents.


author: BARROW, Chief Justice. CADENA, Justice.

text:
    Vicki Lynn ALLEN et al., Appellants, v. BENTLEY LABORATORIES, INC., et al., Appellees.
    No. 15562.
    Court of Civil Appeals of Texas, San Antonio.
    June 30, 1976.
    Rehearing Denied July 28, 1976.

      Southers, Goleberg, Lyons & Huson, San Antonio, for appellants.
    Lewin Plunkett, Wiley, Plunkett, Gibson & Allen, Edward P. Fahey, J. Michael Myers, Groce, Locke & Hebdon, Paul M. Green, Lang, Cross, Ladon, Boldrick & Green, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellants, Vicki Lynn Allen, individually and as next friend of her minor daughter, Sheila Marie Allen, and the First National Bank of Springfield, Guardian of the Estate of Sheila Marie Allen, brought suit against Dr. Robert H. LePere, Dr. Byron Dooley, Dr. Ramiro Cadena, Dr. Collette M. Kohler, Bentley Laboratories, Inc., and Santa Rosa Medical Center, alleging causes of action of negligence against all defendants, and also strict liability and breach of implied warranty against Bentley Lab. The doctrine of res ipsa loquitur was also invoked as to each defendant. The four doctor defendants and Bentley Lab filed motions for summary judgment and the four doctors, in the alternative, sought dismissal of the suit for want of prosecution.

The trial court granted all five motions for summary judgment and entered a take-nothing judgment as to each of these parties and also ordered the cause against each dismissed for want of prosecution. The cause of action against Santa Rosa Medical Center was severed, and appellants have duly perfected their appeal from the take-nothing judgment granted the other five defendants, who are appellees herein.

Appellants urge by seven points of error that each of the appellees failed to discharge their summary judgment burden, and therefore, the trial court erred in granting the take-nothing judgment. Appellants assert by five points that the trial court abused its discretion in dismissing the suit against these defendants for want of prosecution.

The summary judgment record consists of the pleadings, written interrogatories propounded by appellees to Bank and Vicki Lynn Allen, the answers to these interrogatories, and the trial court’s docket sheet. According to appellants’ petition, Sheila Marie Allen, then thirteen months old, underwent surgery at Santa Rosa Hospital on February 1, 1972, to correct a heart defect. The four doctors participated in this operation in various capacities, and a machine manufactured by Bentley Lab was used to supply oxygen to the child. On February 2, 1972, the child suffered a central nervous system impairment, and, as a result, is and will always be, severely brain damaged. Suit was filed on February 1, 1974, and citation was issued on February 4,1974, for all six defendants. The citation was never served on Bentley Lab, and on July 26, 1974, it filed an answer wherein it pleaded the two-year statute of limitations. The doctor defendants did not assert any affirmative defenses.

All appellees moved for summary judgment based on the answers of appellant, Vicki Lynn Allen, to interrogatories propounded by appellees. These answers, insofar as the four doctors are concerned, state that she has no knowledge of any negligent acts committed by any of these doctors. She further answered that she has no knowledge of any defects in the Bentley Lab machine and that she knew of no medical experts or other witnesses to assist in the presentation of her case at the time of trial. Appellees urge that these answers establish that appellants have no proof to support their allegations of negligence or to show any defects in the Bentley Lab machine, and therefore, the trial court properly granted appellees’ motions for summary judgment.

This contention is contrary to well-established summary judgment practice as clearly enunciated in Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). There the Supreme Court reversed and remanded for trial a take-nothing summary judgment which had been granted because plaintiff failed to present evidence to raise a fact issue that the ball-joint unit was defective at the time it left defendant’s factory. The Court said:

The two quotations illustrate a basic fallacy frequently found in the approach of some of our courts to the matter of rendering or affirming a summary judgment in favor of a defendant. In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.

See also Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972); Torres v. Western Casualty and Surety Co., 457 S.W.2d 50 (Tex.1970); Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970).

The answers of Vicki Lynn Allen did not establish as a matter of law that any of said appellees were not negligent, but merely that this appellant did not know of any witnesses or evidence at that time which would establish such negligence. Although appellants would have the burden of raising fact issues as to negligence and proximate cause at the trial on the merits or suffer an instructed verdict, the burden was upon appellees as movants in the summary judgment proceeding to show as a matter of law that appellants’ case was without merit. This was not done, and the trial court erred in sustaining appellees’ motion based on appellants’ lack of proof at such time of negligence or proximate cause.

Bentley Lab asserted another reason for granting its motion for summary judgment in that it alleged a defense based on the two-year statute of limitations because of appellants’ failure to diligently pursue service of process. The rule is established that the mere filing of a suit will not interrupt or toll the running of a statute of limitations; that to interrupt the statute, the use of diligence in procuring the issuance and service of citation is required. Rigo Manufacturing Co. v. Thomas, 458 S.W.2d 180 (Tex.1970). Appellants did not plead or offer any excuse for the delay of almost six months in serving Bentley Lab. Furthermore, they do not complain on this appeal of the trial court’s implied action in sustaining Bentley Lab’s plea of limitations. Cf. Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex.1975). The trial court did not err in granting a summary judgment for Bentley Lab on this ground.

The judgment is somewhat novel in that after granting appellees’ motions for a take-nothing summary judgment, the trial court further sustained the doctors’ motions to dismiss the case for want of prosecution and ordered that the cause be dismissed as to appellees. Appellants assert that this was an abuse of discretion by the trial court in that no lack of diligence was shown.

The case was not placed on a “dismissal docket” pursuant to local rules, and it is not contended that the passage of some nineteen months was an abandonment of appellants’ cause of action per se. Cf. Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d 930 (Tex.1975). Appel-lees’ motion seeking a dismissal of the cause is based entirely on appellants’ failure to prosecute the suit with diligence. The suit was not filed until two years from the date of the allegedly negligent operation. Although it was apparent to Vicki Lynn Allen and the Bank from the outset that appellants had no personal knowledge of the conduct of any of the allegedly negligent appellees, nothing was done by appellants to initiate any discovery proceedings. Rather, appellees took the initiative, and in December of 1974 attempted to discover the facts upon which the suit was based. Appellants, after considerable delay, filed somewhat general replies to the written interrogatories of appellees. Appellants sought no discovery of their own nor made any effort to dispose of this lawsuit. Finally, in June of 1975, appellee, Bentley Lab, had the case placed on the September jury docket with notice to appellants. Still, appellants took no action to prepare for trial of this suit seeking a million dollars in damages. It was not until the September docket was reached that appellants filed a motion for continuance and sought delay to enable them to take the oral depositions of the four doctors. We have no statement of facts of the hearing at which the trial court sustained the motions to dismiss for want of prosecution, and therefore, must presume that appellants offered no reasonable excuse for permitting the case to lie dormant for about nineteen months. In fact, none has been suggested on this appeal.

It is settled that a party who files a suit must prosecute his claim to judgment with reasonable diligence, and if he fails to do this, the court has the inherent power to dismiss his claim for want of diligence in its prosecution. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85 (1957); Pollok v. McMullen Oil & Royalty Co., 383 S.W.2d 837 (Tex.Civ.App.—San Antonio 1964, writ ref’d).

The question presented for appellate review is stated in Bevil v. Johnson, supra, as follows:

The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court. That is a question of law.

Denton County v. Brammer, 361 S.W.2d 198 (Tex.1962); Missouri Pacific Ry. Co. v. Liberty County Water Control & Improvement District No. Six, 483 S.W.2d 50 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.); Fulmer v. Barfield, 480 S.W.2d 413 (Tex.Civ.App.—Tyler 1972, writ dism’d).

We cannot say from the limited record before us that the trial court abused its discretion in dismissing the cause as to appellees for want of prosecution.

The judgment is affirmed as to Vicki Lynn Allen, individually, on Bentley Laboratories’ plea of limitations and the dismissal of the cause for want of prosecution is affirmed as to all appellees.

CADENA, Justice.

I would affirm solely on the basis that the trial court did not abuse its discretion in dismissing plaintiffs’ suit for want of prosecution without discussing the propriety of the order granting defendants’ motions for summary judgment.


author: CORNELIUS, Justice.

text:
    Jack McCARTY, Appellant, v. Edna Mae (McCarty) WALKER, Appellee.
    No. 8373.
    Court of Civil Appeals of Texas, Texarkana.
    July 6, 1976.

      Pat C. Beadle, Beadle & Beadle, Clarks-ville, for appellant.
    T. D. Wells, Wells & Wells, Paris, for appellee.
   CORNELIUS, Justice.

Appellee filed for a writ of habeas corpus seeking to obtain from appellant the possession of her two minor sons. The trial court granted the writ and placed the minors in the custody of appellee.

Appellee and Ronald Wayne McCarty, Sr. were divorced by decree of the District Court of Jefferson County, Oklahoma, on October 28, 1970. Custody of their two sons, Ronald Wayne McCarty, Jr. and James Darrell McCarty, now ages 5 and 7, respectively, was awarded to appellee. Subsequently, upon the joint motion of ap-pellee and Ronald Wayne McCarty, Sr., the Oklahoma court modified the custody order and placed the minors in the custody of appellant, their paternal grandfather. Appellant and the minors thereafter moved to Texas. On September 11,1974, the Oklahoma court again modified its custody decree and restored custody to appellee. In that decree it was stated that the previous order which had placed the minors in the custody of their grandfather was not intended to be a permanent arrangement but was to extend only until such time as either the mother or the father of the minors became financially able to care for them, and that since appellee was now married and in a position to financially and otherwise properly care for the children, it was in their best interest that appellee have their custody. After entry of the modified Oklahoma custody decree, appellee came to Texas and filed her petition for writ of habeas corpus to secure possession of the children. Her petition alleged she was entitled to possession of the children under the Oklahoma decree, and also that her change in marital status and home environment rendered it in the best interests of the children that she be given their custody. A duly authenticated copy of the Oklahoma decree was attached to the petition and was introduced into evidence at the trial. The father of the children, Ronald W. McCarty, Sr. appeared at the trial, but has not appealed or complained of the judgment below.

The trial court found and concluded that the decree of the Oklahoma court was entitled to full faith and credit; said court had jurisdiction over the children on the date its decree was rendered; appellee had successfully married and was no longer in financial straits; appellee was financially able and was a fit and proper person to have custody of the minors; the minors were in dire need of the care of their mother, appellee; appellant was not married and was in his sixty’s; and, all parties and the children being before the court, the court found that, independent of all other reasons, the welfare and interests of the minors would be best served by awarding their custody to the appellee.

Appellant contends that the Oklahoma court did not have jurisdiction to enter the modified decree because he was not a party thereto, he was not served with notice thereof, and the children were not residents of the State of Oklahoma when the decree was rendered. He also contends there was neither pleading nor evidence of materially changed conditions which justified the Texas court in changing the custody from him to appellee.

Subject to the full faith and credit requirements of Article IV, Sec. 1 of the United States Constitution, this proceeding is governed by Sec. 14.10 of the Texas Family Code which provides in part as follows:

“Sec. 14.10. Habeas Corpus
(a) If the right to possession of a child is presently governed by a court order, the- court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree . . . unless it finds that the previous order was granted by a court of another state . . . and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ. . . . ”

A final judgment in child custody matters rendered by a court of another state is entitled to full faith and credit in the courts of Texas. Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966). An exception applies when the court which rendered the judgment was without jurisdiction of the cause of action or of the parties. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1944); Fraley v. Martin, 168 S.W.2d 536 (Tex.Civ.App., Dallas 1943, no writ). The introduction of a duly authenticated copy of the judgment establishes a prima facie case for its recognition and enforcement in the forum where introduced. Whitley v. General Electric Co., 18 Tex.Civ.App. 674, 45 S.W. 959 (1898, writ ref’d); Hamilton v. Newbury, 412 S.W.2d 801 (Tex.Civ.App., Dallas 1967, writ ref’d n. r. e.). When the judgment appears on its face to be a record of a court of general jurisdiction, jurisdiction over the cause and the parties will be presumed unless disproved by extrinsic evidence or by the record itself. Gunther v. Gunther, 478 S.W.2d 821 (Tex.Civ.App., Houston 14th Dist. 1972, writ ref’d n. r. e.); 34 Tex.Jur.2d, Judgments, Sec. 383. It will also be presumed that the court acted within its powers in rendering the judgment. Autry v. Autry, 350 S.W.2d 233 (Tex.Civ.App., El Paso 1961, writ dism’d); Allee v. Van Cleave, 263 S.W.2d 276 (Tex.Civ.App., Galveston 1953, no writ). When jurisdiction over a person affected by the judgment is questioned, the burden is on the person claiming lack of jurisdiction to show there was no appearance or notice sufficient to make the decree binding upon him. Follak v. Brown, 530 S.W.2d 882 (Tex.Civ.App., Beaumont 1975, no writ); Dowden v. Fischer, 338 S.W.2d 534 (Tex.Civ.App., Waco 1960, no writ); 34 Tex.Jur.2d, Judgments, Sec. 383. In the absence of such proof, all prior requisites to jurisdiction will be presumed. Henry v. Allen (1891), 82 Tex. 35, 17 S.W. 515; Allee v. Van Cleave, supra.

In this case, appellant subjected himself to the jurisdiction of the Oklahoma court when he appeared in that court and accepted custody of the minors. The removal of appellant and the children to Texas did not defeat that jurisdiction. Dowden v. Fischer, supra; Camp v. Newsom, 329 S.W.2d 347 (Tex.Civ.App., Waco 1959, writ ref’d n. r. e.). Appellant would, however, have been entitled to notice before the Oklahoma custody order was changed. In this proceeding appellant pleaded that he had received no such notice, but he made no effort to prove the lack of notice, and the record is entirely silent in that regard. Therefore, supported by the presumptions heretofore noted, the judgment of the Oklahoma court restoring custody to appellee stood unimpeached and was entitled to full faith and credit in the courts of Texas.

Moreover, Subparagraphs (b)(1) and (2) of Section 14.10 authorize the Texas court to make its own determination of custody if the court of the sister state did not have jurisdiction over the parties or if the minors had been within the State of Texas for at least 12 months immediately prior to the filing of the petition for writ of habeas corpus. It was stipulated that these minors had resided in Texas for some two years immediately prior to the filing of the petition for the writ. In her petition for the writ, appellee in effect alleged a change of conditions and prayed that custody be awarded to her in the best interests of the minors. All of the interested parties, including appellant, appellee, the minors and their father, were present in the Texas court when appellee’s petition was heard. At the beginning of the hearing the trial judge stated:

“Well, in view of all those facts, the court will hold that this court does have jurisdiction for whatever order that may be made on whatever evidence that is put on the witness stand which will affect the best interests of the children.”

To that statement appellant’s counsel replied: “We agree to that position, Your Honor.” The court then heard evidence from both appellant and appellee as to the conditions and circumstances which they contended required that custody be vested in them. The trial court was therefore authorized to determine the issue of custody on the basis of changed conditions regardless of whether the Oklahoma court had jurisdiction of appellant at the time it entered its last custody decree.

Appellee supported her right to custody on the grounds that, as recited therein, the Oklahoma decree vesting appellant with custody was a temporary award entered because appellee was not married at the time and could not then provide a home or support for the minors, and that a change of conditions had occurred in that she was now successfully married and that she and her husband were both able and willing to care for and support the children. On the other hand, appellant produced evidence that the interests of the children would be better served if custody was awarded to him. Upon this evidence, the trial court concluded that the interests of these minors of tender years would be best served if their custody was awarded to appellee, their mother, and we find the evidence sufficient to support such a conclusion.

At a point in the hearing, appellant was cut off from producing additional evidence in his favor as to the best interests of the children, but later that evidence was fully developed on appellant’s Bill of Exception presented before the trial court, and we cannot say it was of such a nature as to compel a different result.

The judgment of the trial court is affirmed.


author: COULSON, Justice.

text:
    M. A. SHERRILL, Trustee of the William W. Sherrill Trust, Appellant, v. BRUCE ADVERTISING, INC., et al., Appellees.
    No. 1411.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 7, 1976.

      Jerry J. Hamilton, Campbell, Lilly, Hamilton & Meadows, Houston, for appellant.
    William A. Petersen, Lapin, Totz & Mayer, Dale A. Dossey, Engel, Groom, Miglicco & Gibson, Houston, for appellees.
   COULSON, Justice.

This is an appeal from a suit on a contract for services rendered. Bruce Advertising, Inc. sued M. A. Sherrill, Trustee of the William W. Sherrill Trust and Crane-Maier and Associates, Inc. for services rendered in connection with the development of real property owned by the Sherrill Trust. The trial court entered judgment for Bruce Advertising against M. A. Sher-rill, Trustee of the William W. Sherrill Trust, and against Crane-Maier. The judgment against Crane-Maier has not been appealed and has become final. This appeal relates only to the judgment entered against M. A. Sherrill, Trustee of the William W. Sherrill Trust. We reverse and render.

In 1970, an agreement was entered between Crane-Maier and the Sherrill Trust whereby the Trust’s real property located in Galveston County would be subdivided, developed and sold by Crane-Maier. Bruce Advertising dealt with Crane-Maier by supplying services to them on a contractual basis for development of the realty. Bruce Advertising was not aware that the Sherrill Trust owned the property which Crane-Mai-er was developing. Suit was brought against Crane-Maier for the services rendered by Bruce Advertising when payment was not forthcoming. After suit was instituted, Crane-Maier by way of its pleadings informed Bruce Advertising that the Sher-rill Trust was owner of the property which Crane-Maier was developing. The trial court sitting without a jury entered judgment against both Crane-Maier and the Sherrill Trust holding them jointly and severally liable for the services rendered by Bruce Advertising. Findings of fact and conclusions of law were properly filed. The court stated that the association of and agreement between Crane-Maier and the Sherrill Trust constituted a joint venture for the development of the property. The Sherrill Trust has appealed the judgment claiming that as a matter of law there is no joint venture between it and Crane-Maier. We agree.

To constitute a joint venture, certain requisites must be shown, including the right to participate in profits and the obligation to share losses and joint control of the enterprise. Allan Construction Company v. Parker Brothers & Co. Inc., 535 S.W.2d 751 (Tex.Civ.App.—Beaumont 1976, no writ). The agreement between Crane-Maier and the Sherrill Trust does not provide for the sharing of losses. As a matter of law, there was no joint venture in existence between Crane-Maier and the Sherrill Trust.

However, we must consider whether the findings of fact will support the judgment against the Sherrill Trust on any other theory of law. The findings of fact show that Crane-Maier agreed with Bruce Advertising to handle the advertising requirements of the property belonging to the Sherrill Trust. They further show that an agreement was entered into between the Sherrill Trust and Crane-Maier for development and sale of the lots of the Sherrill Trust’s property and that Crane-Maier was to be compensated for its services of promotion, development and sales of the project by a percentage of the sales price of each lot sold. These findings contain elements supporting the theory that Crane-Maier was the agent acting for the principal, the Sher-rill Trust, in ordering advertising services from Bruce Advertising.

Whether Bruce Advertising may recover a judgment on a joint and several basis against both a principal and agent is the question presented. Although there were no specific findings of an agency relationship existing between the Sherrill Trust and Crane-Maier, the findings do contain elements of an agency relationship — that is they show a consensual relation whereby one party is to act for and on behalf of the other. Prom this the further element of an agency relation may be implied that Crane-Maier was subject to the control of its principal, the Sherrill Trust. Tex.R.Civ.P. 299.

We may imply from the findings of fact that a principal and agent relationship existed between the Sherrill Trust and Crane-Maier, which theory is supported by Bruce Advertising’s pleadings. Bruce Advertising did not know that Crane-Maier was acting for anyone other than itself. The Sherrill Trust is in the position of an undisclosed principal. An undisclosed principal is discharged from liability upon a contract if, with knowledge of the identity of the principal, the other party recovers judgment against the agent who made the contract, for breach of the contract. Restatement (Second) of Agency § 210(1) (1957). While this rule has received some discredit (See Merrill, Election Between Agent and Undisclosed Principal: Shall we follow the Restatement? 12 Neb. L. Y. (1933)), the Texas courts have consistently followed it. 31 Tex.Dig. Principal & Agent § 145(4) (1974). Here, the judgment against the agent Crane-Maier has become final. On the theory of principal and agent, the principal, Sherrill Trust, cannot now be held liable since there is a final judgment had against its agent for breach of the contract.

Finally, we consider whether the judgment can be sustained on the theory of quantum meruit. The findings of fact establish the existence of an agreement between Bruce Advertising and Crane-Maier. Bruce Advertising preformed its agreement which was breached by Crane-Maier’s failure to pay for services rendered thereunder. There can be no implied contract and no recovery in quantum meruit, where there exists a valid express contract covering the subject matter. Freeman v. Carroll, 499 S.W.2d 668, 670 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.). The judgment against Crane-Maier having been entered and now final, there is no theory which can support joint and several liability against the Sher-rill Trust.

The judgment against the Sherrill Trust is reversed and it is rendered that Bruce Advertising take nothing against the Sher-rill Trust.

Reversed and rendered.


text:
    M. A. SHERRILL, Trustee of the William W. Sherrill Trust, Appellant, v. Richard E. RAY a/k/a R. E. Ray d/b/a Ag. Mfg. Co., Appellee.
    No. 1412.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 7, 1976.
    Rehearing Denied July 28, 1976.
    Jerry J. Hamilton, Campbell, Lilly, Hamilton & Meadows, Houston, for appellant.
    William A. Petersen, Lapin, Totz & Mayer, Dale A. Dossey, Engel, Groom, Migglicco & Gibson, Houston, for appellee.
   COULSON, Justice.

This case is factually similar to the case, which we also decided today, of M. A. Sherrill, Trustee of William W. Sherrill Trust v. Bruce Advertising, Inc., 538 S.W.2d 865 (Tex.Civ.App.—Houston [14th Dist.] 1976). These two cases were consolidated for trial purposes only. The only difference is that here, Richard E. Ray, rather than Bruce Advertising, provided services and goods to Crane-Maier. For the reasons set forth in our foregoing opinion concerning Bruce Advertising we reverse and render the judgment entered against M. A. Sherrill, Trustee of the William W. Sherrill Trust.

The judgment of the trial court is reversed and it is rendered that Richard E. Ray take nothing from M. A. Sherrill, Trustee of the William W. Sherrill Trust.


author: J. CURTISS BROWN, Chief Justice.

text:
    Edward TOBOLA et al., Appellants, v. STATE of Texas, Appellee.
    No. 1461.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 7, 1976.
    Richard B. Stilwell, Houston, for appellants.

      Robert D. Ford, Asst. Dist. Atty., Earl I. Harwood, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a temporary order in a suit affecting the parent-child relationship.

Suit was filed in the juvenile court of Harris County seeking to terminate the parent-child relationship between Nicole Tobola (age 2⅛) and David Tobola (age 3½ months) and their parents, Edward and Delores Tobola (the parents or appellants). After an ex parte hearing the trial court entered an order placing temporary conser-vatorship of the children in the director of the Harris County Child Welfare Unit pending a show-cause hearing, and also appointing a guardian ad litem and attorney ad litem. Before that hearing was held, the parents filed a “Motion for Reconsideration and Petition for Habeas Corpus” and a hearing was immediately held thereon. After that hearing the court ordered that Nicole Tobola be returned to her parents but that temporary conservatorship of David Tobola remain in the Harris County Child Welfare Unit pending final disposition of the termination suit. The court also ordered the scheduled show-cause hearing cancelled. The parents have perfected this appeal.

On April 21, 1976, S’/k-month-old David Tobola began experiencing difficulty breathing and was taken to a hospital by his parents. After several days of testing it was determined that he had sustained a moderately severe traumatic injury, as a result of which he suffered increased intra-cranial pressure and multiple hemorrhages on the insides of both eyes. When the parents could give no explanation for these injuries, the doctors attending David suspected child abuse. On about April 26, the hospital staff notified the Harris County Child Welfare Unit of the suspected abuse and forwarded to it a written report of the matter. A member of the Child Welfare Unit staff interviewed the social work staff of the hospital, and also visited the parents in their home.

On May 3 a representative of the Child Welfare Unit filed an “Original Petition to Terminate Parent-Child Relationship,” accompanied by reports from an attending physician and a member of the hospital social work staff. On either May 3 or May 4 the trial court, without notice to the parents, granted an application for temporary conservatorship, placing both David and Nicole with the Child Welfare Unit pending a May 17 hearing “to show cause why the child(ren) should not remain in the temporary conservatorship of Gene Lege, Director of Harris County Child Welfare Unit pending a final decree in this suit.”

On about May 10 the parents filed their “Motion for Reconsideration and Petition for Habeas Corpus.” On May 11 a hearing was held on the parents’ motion. At that hearing appeared the parents, an Assistant District Attorney representing the Child Welfare Unit and the State of Texas (State or appellee), and the guardian and attorney ad litem for the children. Called as witnesses for the State were one of David’s attending physicians and the member of the Child Welfare Unit staff who had investigated the case. At the close of the State’s testimony the parents moved for judgment on the ground that the State had failed to meet its burden of proof. At this time the court rendered a judgment that was partially against the parents, stating: “Nicole will be returned to the parents and the other child will be held.” The parents made no immediate objection to this ruling, but simply gave notice of appeal. On May 20 the trial court signed an order that reflected its previously announced judgment, and which formally cancelled the May 17 hearing.

Appellants contend that the trial court erred in rendering judgment before they had been allowed to present any evidence. Appellee argues that by failing to object to the court’s action the appellants waived their right to complain of their lack of opportunity to testify. We sustain appellants’ contention.

Appellee’s application for an order of temporary conservatorship was in the nature of an application for a temporary restraining order, and the trial court’s second temporary order, from which this appeal was taken, was in the nature of a temporary injunction pending final disposition of the suit for termination. Tex.R. Civ.P. 680 requires that, in the absence of an agreement to the contrary, a trial court must conduct a hearing on an application for temporary injunction. Millwrights Local 2484 v. Rust Engineering Co., 433 S.W.2d 683 (Tex.Sup.1968). Tex.R.Civ.P. 681 provides that “[n]o temporary injunction shall be issued without notice to the adverse party.” It is well settled that the requirement of notice in Rule 681 impliedly requires an adequate opportunity to be heard. City of Houston v. Houston Lighting & Power Co., 530 S.W.2d 866 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref d n. r. e.); City of Austin v. Texas Public Employees Association, 528 S.W.2d 637 (Tex.Civ.App.—Austin 1975, no writ).

From a reading of the statement of facts it is clear that the appellants did not, by their motion for judgment, intend to rest their case. Both of the appellants had been sworn as witnesses at the beginning of the hearing, and there had been no indication that they would not testify. Therefore, when the court rendered judgment at the close of appellee’s case it denied appellants the right to be heard as contemplated by Rule 681.

Under normal circumstances, an immediate objection is required to preserve a party’s right to complain of an allegedly erroneous exclusion of evidence during the course of a trial. However, a rendition of judgment in open court ends the trial. Thereafter the losing party’s objections are to the court’s judgment or the effect thereof, and they need not be recited in open court. We hold that a rendition of judgment by the court before a party has had the opportunity to present any evidence and before he has rested his case obviates the necessity of an immediate objection to the effect of such rendition. As we stated in City of Houston v. Houston Lighting & Power Co., supra at 869:

“We do not mean to say that a trial court may not impose reasonable limitations upon a litigant’s presentation of evidence in a temporary injunction hearing. But he may not, as done here, completely deprive a party of the right to offer any evidence.”

For this error, the judgment of the trial court is reversed, the temporary order of May 20 dissolved, and the cause remanded to the trial court.

Reversed and remanded.