author: RAY, Justice.

text:
    MIDWAY PROTECTIVE LEAGUE, Appellant, v. CITY OF DALLAS, Appellee.
    No. 8403.
    Court of Civil Appeals of Texas, Texarkana.
    April 19, 1977.
    Rehearing Denied May 17, 1977.

      Pat Guillot, Collie, McSpedden & Roberts, Dallas, for appellant.
    N. Alex Bickley, City Atty., Dallas, for appellee City of Dallas.
    Robert H. Thomas, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appel-lees/intervenors.
   RAY, Justice.

Midway Protective League, appellant (plaintiff), brought suit against appellee (defendant), the City of Dallas, attacking the validity of a zoning ordinance on the ground that the City did not comply with the necessary jurisdictional prerequisites and on the ground of spot zoning. Appel-lees, Jack W. Lively and Joan Stansbury, owners of the land being rezoned, intervened. The court tried the case without the aid of a jury and entered judgment for the City of Dallas, Jack W. Lively and Joan Stansbury, upholding the validity of the ordinance. Appellant, Midway Protective League, an unincorporated association of real property owners residing in the neighborhood of the zoning change, has perfected its appeal and submits four points of error for our consideration.

Dallas Zoning Ordinance No. 14645 rezoned 7.9806 acres of land for use as a “dry” shopping center. The land is part of a 17.54 acre tract owned by Appellees Lively and Stansbury. Their land had previously been in an area zoned for residential use, but had never been developed.

In addition to regulating the development plans of the 7.9806 acre shopping center tract, the ordinance imposes restrictions on the remainder of the large tract. The remainder of the 17.54 acres retains its residential classification but lots created from the tract are required to be of a certain minimum depth and size. A conceptual plan has been affixed to the ordinance anticipating additional development of landscaping, public streets and alleys. This additional development is conceived to fall not only on the rezoned 7.9806 acre shopping center, but also on the remainder of the 17.54 acres owned by the intervenors.

The appellant asserts that the rezoning ordinance is void because of failure to comply with procedural requirements of the State Zoning Enabling Act, Article 1011, Tex.Rev.Civ.Stat.Ann. Article 1011a and Article lOllj, Tex.Rev.Civ.Stat.Ann., empower cities to regulate the use of property within their boundaries and set out the procedures for doing so. The appellant has filed points of error asserting four separate procedural violations.

The appellant’s first point of error asserts that the ordinance was void for lack of jurisdiction when the City Council determined without report and recommendation from the Planning Commission, and without public notice and hearing that the shopping center would be “dry.”

The Planning Commission did give notice, hold a public hearing, and make a report and recommendation to the City Council that the zoning be changed to permit all uses of a shopping center district. The City Council similarly gave notice and held a public hearing on the acceptance of the Planning Commission’s recommendations. No consideration was given by anyone to the wet or dry status of the shopping center until the deliberations of the City Council, well after public hearings had been held. At that time the City Council determined on its own motion that the dry suffix “D” should be added to the zoning classification of the proposed development district.

Article lOllf requires that the City Council receive a final report of its zoning commission before holding hearings or taking action on a zoning ordinance. The authorities have been said to be in conflict as to whether the City Council may act to amend an original zoning ordinance without first receiving recommendations regarding the amendment from the City Zoning Commission after public hearing before that commission. 63 Tex.Jur.2d, Zoning, Sec. 106. Those cases denying the right of the City to take action have been based on the absence of a recommendation of any nature by the Planning Commission to the City Council. Smart v. Lloyd, 370 S.W.2d 245 (Tex.Civ.App. Texarkana 1963, no writ); Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962). Those cases affirming the right of the City to act have upheld the sufficiency of a challenged but existent commission report. Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App. Dallas 1961, writ ref’d n.r.e.); Clesi v. Northwest Dallas Imp. Ass’n, 263 S.W.2d 820 (Tex.Civ.App. Dallas 1953, writ ref’d n.r.e.). The requirement is not that a given amendment have actually been discussed before the commission, but that an opportunity was afforded for it to have been. The appellant contends that this rule should be applied to only minor amendments made by the City Council on the recommendation of the Zoning Commission. City of Corpus Christi v. Jones, 144 S.W.2d 388 (Tex.Civ.App. San Antonio 1940, writ dism’d).

The appellant states that the wet or dry status of a development district is not a minor matter. However, appellant has failed to show that as applied to its members the dry status of the district as imposed by the City Council is anything but minor. Amendments of zoning ordinances ought not to be set aside lightly because of procedural defects in their adoption, especially at the behest of persons who have not shown themselves to be prejudiced significantly by the procedural deficiencies at a great or disproportionate cost to other persons who have relied in good faith on the amendment as adopted. Appellant has not shown that it was prejudiced by a lack of greater specificity of notice or of recommendation and report of the City Planning Commission. The first point of error is overruled.

Appellant’s second point of error urges that the ordinance was void because it was not passed by a three-fourths majority of the City Council. A three-fourths majority vote is required when written protests are filed by the owners of at least twenty percent of the land immediately joining and extending two hundred feet from the area of the proposed change. Article 1011e (Supp.1976-1977), Tex.Rev.Civ. Stat.Ann.

It was stipulated that the owners of much less than twenty percent of the land within two hundred feet of the shopping center had filed such protest. Appellant contends, however, that the owners of much more than twenty percent of the land within two hundred feet of the intervenors’ entire 17.54 acre tract have so protested. At issue in the appellant’s second point of error is the base line for measuring the two hundred foot reach for those statutorily enfranchised to protest.

Rezoning was restricted to 7.9806 acres of the intervenors’ 17.54 acre tract. The 7.9806 acre tract is so located that the inter-venors themselves own much of the land within two hundred feet of the shopping center. The possibility of the owners of twenty percent of the adjoining property making an objection was made all but impossible since the shopping center tract is virtually surrounded by properties owned by the intervenors.

The preclusion of a larger than a majority vote by the creation of a buffer zone between property sought to be rezoned and the lands of adjacent property owners has been approved in other states which have considered the question. St. Bede’s Episcopal Church v. City of Santa Fe, 85 N.M. 109, 509 P.2d 876 (1973); Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971); Armstrong v. McInnis, 264 N.C. 616, 142 S.E.2d 670 (1965); Montebello Land Co. v. Frank Novak Realty Co., 167 Md. 185, 172 A. 911 (1934); 1 Rathkopf, The Law of Zoning and Planning, 28-11 (1972). No sound authority has been found to the contrary, nor does the appellant deny the validity of the rule. Rather, the appellant argues that the buffer zone is actually within the area rezoned because the ordinance has imposed upon it standards and restrictions. Article lOlld and Article lOlle specify that “regulations, restrictions and boundaries” are subject to the procedural safeguards of the enabling act. Even if the conceptual plans affixed to the ordinance are disregarded as not being part of the ordinance itself, the size requirements imposed on lots carved out of the remainder of the 17.54 acres arguably represent restrictions imposed beyond the limits of the planned development district.

There is authority for severing invalid portions of an ordinance. City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ.App. Fort Worth 1958, writ ref’d n.r.e.); City of Lubbock v. Whitacre, 414 S.W.2d 497 (Tex.Civ.App. Amarillo 1967, writ ref’d n.r.e.); City of Clute v. Linscomb, 446 S.W.2d 377 (Tex.Civ.App. Houston-1st 1969, no writ). Severance has not, however, been requested. The rezoning of the 7.9806 acre shopping center tract, though it may have included future plans related to the remainder of the 17.54 acre tract, did not have the effect of enlarging the shopping center tract. All home owner protests were directed to the rezoning of the 7.9806 acre shopping center tract, not to the standards imposed on the remainder of the interve-nors’ land. Both the protests and the rezoning ordinance will be restricted to their plain meaning.

The validity of standards and requirements imposed beyond the shopping center tract has not been made subject to direct attack. Such a direct attack is required to invalidate an exercise of municipal authority for want of jurisdiction. Truman v. Irwin, 488 S.W.2d 907 (Tex.Civ.App. Fort Worth 1972, no writ). In the absence of a direct attack, the ordinance in its entirety is protected by a presumption of validity. City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955); Simons Land Company v. City of Dallas, 507 S.W.2d 828 (Tex.Civ.App. Waco 1974), On Motion For Rehearing, 510 S.W.2d 32 (1974, no writ). Appellant’s second point of error is overruled.

In appellant’s third point of error it is submitted that the imposition of changes, restrictions and regulations on land outside the rezoned planned development district invalidates the ordinance. Here again the appellant does not seek severance or directly attack the invalidity of any portion of the action by the City as it relates to land outside the shopping center tract. The appellant cites no authority and none has been found which would support invalidating an ordinance otherwise validly enacted because the ordinance reaches in part beyond the development district which was its primary objective. Article 1011b might be employed to invalidate such portions of the ordinance as have reached too far, but not to invalidate the ordinance as a whole. This Court declines to rule on the validity of portions of the ordinance which have not been attacked. Appellant’s third point of error is overruled.

Appellant’s fourth point of error complains that the City failed to acquire jurisdiction to rezone because of a lack of proper notice. It is undisputed that the City did send notice of the hearings which were held before the Planning Commission and the City Council. Appellant complained, however, that such notice was inadequate to advise interested parties of all of the changes which would be made. In particular, appellant refers to a lack of notice that the shopping center would be zoned “dry” and that the area beyond the limits of the shopping center would be affected.

The requisite details of notice of hearing are not specified by statute. The general rule is that the notice is sufficient if it reasonably apprises those for whom it was intended of the nature of the pending proposal to the extent that they can determine whether they should be present at the hearing. The content of the notice should be sufficiently specific to warn the recipient that he may be affected by the contemplated action and a notice deficient in this respect will be treated as no notice at all. While the notice need not be complete and perfect in every respect, it must be such as will afford the recipient an opportunity to oppose the measure if he desires. 96 A.L. R.2d 449, 457, Zoning Ordinance-Notice Requirements. Deviation of an ordinance from the descriptions of the notice and the discussions at the statutory hearing is permissible unless the changes become so substantial that the proposal made can be said to be a new one. City of Corpus Christi v. Jones, supra; Amarillo v. Wagner, 326 S.W.2d 863 (Tex.Civ.App. Amarillo 1959, writ ref’d n.r.e.).

The notice in the present case was general. It was sufficient, however, to advise that a planned development for a shopping center was under consideration. The subsequent addition of the “dry” suffix may, under the circumstances, be construed to be a minor change in the development scheme, particularly as applied to the appellant. We hold that the rezoning of the shopping center development district was supported by adequate notice. Appellant’s fourth point of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    Alfonso M. GONZALEZ et al., Appellants, v. Juan M. GONZALEZ, Individually and as Independent Executor of the Estate of Isabel M. Gonzalez, Deceased, Appellee.
    No. 1139.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 28, 1977.
    Rehearing Denied June 9, 1977.

      Ken Hannam, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellants.
    Michael W. Williams, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit for partition of properties devised and bequeathed by Juan A. Gonzalez and wife, Isabel M. Gonzalez, both deceased, to their seven children. Alfonso M. Gonzalez, Manuel M. Gonzalez, Jose M. Gonzalez, Arnolfo M. Gonzalez, Adolfo M. Gonzalez and Rosa M. Gonzalez are plaintiffs. Juan M. Gonzalez is defendant. The parties are the sole and only surviving children of Juan A. Gonzalez, who died August 25, 1954, and wife, Isabel M. Gonzalez, who died on May 6, 1968, and are also the sole beneficiaries under the joint and mutual will of Juan A. Gonzalez and wife, Isabel M. Gonzalez.

Following a jury trial, judgment was rendered which partitioned the properties involved, settled all accounts between the parties, and closed the administration on the Estate of Juan A. Gonzalez and on the Estate of Isabel M. Gonzalez. Parts of the judgment were favorable to plaintiffs and parts were favorable to defendant. The plaintiffs, hereinafter sometimes called the “six children,” and the defendant, hereinafter sometimes called “Juan M.,” have appealed from those portions of the judgment which were adverse to them.

Since this is the third time that a dispute between the parties with regard to the properties inherited by them from their father and mother has reached this Court, a background statement is deemed appropriate.

Juan A. Gonzalez and wife, Isabel M. Gonzalez, executed a joint and mutual will on November 1, 1941. Following the death of Juan, the will was duly admitted to probate as his last will and testament. All property acquired by Juan and Isabel was community property. Isabel, who qualified as independent executrix of Juan’s Estate, elected to take under the will. Following Isabel’s death, the will was admitted to probate as her- last will and testament. Juan M., the defendant in this case, qualified as independent executor of her estate.

On October 25, 1968, the plaintiffs demanded a partition and distribution of all properties belonging to the estates of their deceased father and mother. Their demand was refused by the defendant, who was then in actual possession of all properties owned by the estates of both Juan and Isabel. He remained in absolute possession and control of such properties, and contended that as independent executor of the estate of Isabel, he had full authority over and was entitled to administer, not only the property belonging to her estate, but all property belonging to the estate of Juan as well. He argued that it was the intent of the makers of the joint and mutual will that he, as executor, should manage the entire estate until he determined whether any advancements or- loans were made to the children by his mother during her administration of Juan’s estate, and, when this had been done, he then had the exclusive right to distribute to each of his brothers and sister his or her equal 1/7^ Par*' the properties remaining.

The six children filed suit on November 22, 1968, wherein they sought a declaratory judgment for the construction of the will and for a judicial partition of the properties owned by Juan and Isabel. The trial court severed the action for partition from the cause and proceeded to trial on the action for declaratory judgment to construe the will. Judgment was rendered favorable to Juan M., and the trial court, in its construction of the will, decreed: 1) the makers of the will did not intend to create a testamentary trust; 2) there can exist but one estate under the will; 3) such estate should be administered by “an Independent Executor or Executrix”; and 4) “neither under the terms of such will, nor under the law, can this Court in this declaratory judgment order a partition of such estate.” Following an appeal to this Court, the judgment of the trial court was reversed and rendered. See Gonzalez v. Gonzalez, 457 S.W.2d 440 (Tex.Civ.App—Corpus Christi 1970, writ ref’d n. r. e.), hereinafter referred to as the “First Gonzalez Case.”

This Court, in the First Gonzales Case construed the will as follows: 1) two estates were created by the will: a) one being the Estate of Juan which consisted of all the property owned by him and Isabel at the time of Juan’s death, and b) the other being the Estate of Isabel, which consisted only of the property, if any, acquired by her in any capacity after Juan’s death; 2) the will created a testamentary trust for the benefit of Isabel and the seven children of Juan and Isabel, and devised all of the property owned by Juan and Isabel at Juan’s death to Isabel and the children in eight equal parts, one part to Isabel and one part to each child; and, 3) Isabel, by qualifying as independent executrix of Juan’s Estate, also became trustee of all properties owned by her and Juan at the death of Juan. In line with that construction of the will, this Court then held: 1) the trust had terminated prior to the time suit was filed (November 22, 1968); 2) the trust properties were not part of Isabel’s Estate; 3) the legal and equitable title to all properties owned by Juan and Isabel at Juan’s death had then vested in the seven children of the decedents; and 4) Juan M. qualified as executor of Isabel’s Estate, but did not qualify as executor of Juan’s Estate.

The decision of this Court in the First Gonzalez Case became final on December 9, 1970. Subsequently, Juan M., who claimed that the will of his parents excluded a judicial partition and empowered him to partition such properties, filed in the partition suit then pending a duly executed and acknowledged instrument denominated by him as a “Trustee-Executor’s Deed.” He purported to partition the subject properties by setting apart certain lands to plaintiffs herein, jointly, for their respective share of the land partitioned, and by setting apart to himself certain lands for his share thereof. Plaintiffs rejected such purported partition and attacked the deed as being void. A trial ensued. Judgment was then rendered, which, among other things, decreed that Juan M. had the sole right, authority and responsibility to partition the properties. This Court reversed the judgment of the trial court and remanded the cause with instructions. See Gonzalez v. Gonzalez, 469 S.W.2d 624 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.), hereinafter referred to as “the Second Gonzalez Case.” There, we held that the attempted partition by Juan M. was invalid, that the “Trustee-Executor’s Deed” was void, and that the properties involved, all of which were owned by Juan and Isabel at the time of Juan’s death and none of them were acquired by Isabel subsequent to the death of her husband, were owned by the seven children of the decedents “as tenants in common upon the termination of the trust,” which occurred at Isabel’s death.

Plaintiffs, in their fourth amended original petition (their trial pleading) sought to recover from Juan M. the reasonable value of the use of rents and revenues on their portion of the properties during the period when the same was allegedly wrongfully withheld from them by Juan M.; they asked that the court order a partition and distribution of all of said properties, and to make any and all adjustments which it may, in equity, find to exist; that they be awarded interest on all rents and revenues accruing to their share of the properties from May 7, 1968 to date of judgment; and that they recover all court costs.

Juan M., in his answer and cross action, alleged that until the will was construed by this Court in the First Gonzalez Case, there existed a bona fide dispute as to the true import, extent and meaning of the will, including his power and authority thereunder. He further alleged that plaintiffs were not entitled to possession and control of any of the properties until the decision of this Court in the Second Gonzalez Case became final, and that all of his acts in connection with the management of such properties were performed in his capacity as independent executor of the Estate of Isabel Gonzalez, and were done for the benefit of plaintiffs; that plaintiffs, in demanding that he partition the properties in their letter of October 25,1968, are now estopped to deny that they intended for him to manage and control the properties until such partition could be accomplished; that he was “induced” to become the executor because of the language of the will and that the properties should bear the cost of their care and upkeep; that he had equal right to possession, management and control of the properties, for which he. was entitled to a credit for all expenses, charges and debts incurred in the maintenance and protection of the properties; and, that he was justly entitled to reasonable compensation for personal services performed by him in the management of the properties.

The jury, among other findings, found: that some of the plaintiffs requested Juan M. to take possession and control of the properties; that the purchase of an automobile, its cost of operation and insurance thereon, attorney’s fees incurred in construing the Will of Juan A. and Isabel Gonzalez, accounting fees, expenses of notifying tenants to vacate, and miscellaneous expenses had been necessarily incurred by Juan M. in the management, maintenance, care, and preservation of the properties involved. The jury then awarded a specific amount of money to be allowed Juan M. for each category of the expenses. The jury also determined that Juan M. and his wife should be allowed compensation for various services furnished by them in connection with the management and preservation of the properties, including the payment of payroll taxes thereon. In that regard, the jury determined that it was necessary in the management, maintenance, care and preservation of the properties that the following acts be performed: that Juan M. employ someone as bookkeeper, be available in the office to answer phone calls, and handle daily inquiries and complaints in the management, maintenance, and preservation of the properties; that a manager or supervisor of the rental business for the properties was required; that it was necessary that Genevieve Gonzalez, the wife of Juan M., perform the services of bookkeeper and receptionist, and that Juan M. provide the services of manager or supervisor. The jury also found that $31,200.00 was reasonable compensation to him for management of the properties, and further found that it was necessary for Juan M. to pay “payroll taxes” on the money paid to Genevieve Gonzalez for her services.

Judgment was signed on February 26, 1976, whereby: 1) certain real properties were set apart in severalty to each of the parties as their fair share of the properties partitioned; 2) certain parcels of land were ordered sold by the Receiver and the proceeds expended in accordance with the orders of the trial court; 3) defendant was allowed credits for certain expenses incurred in the maintenance of the properties and in renting the same, but was charged personally with six-sevenths (⅝) of: 1) commissions on rentals; 2) attorney’s fees paid after the opinion was handed down in the First Gonzalez Case; 3) all fees and compensation which he paid to himself for managing the properties; and 4) payroll taxes which were paid because of such compensation. The total charge to defendant was $39,229.63. The court costs incurred since the decision in the Second Gonzalez Case became final were charged equally to all parties. No interest was charged to defendant. Other adjustments, about which there are no complaints, were also made in the judgment.

It is conclusively established by the evidence that all expenditures were made from moneys that were received by Juan M. as rents from the properties, or from funds that were on hand when he qualified as independent executor of Isabel’s Estate. The expenditures which plaintiffs say should have been charged to Juan M., individually, were in payment of: 1) attorney’s fees incurred in the construction of the will of Juan and Isabel; 2) bookkeeping and telephone answering services, all payroll taxes, purchase of an automobile, operating costs of and insurance on the automobile, accounting fees, notifying tenants to vacate the premises that they were renting, and miscellaneous expenses. The total of all expenditures which were allowed by the trial court amounted to $56,701.51. Plaintiffs, in effect, were charged with six-sevenths (¾) thereof as their fair share of the cost of renting the properties, their care and upkeep. That action by the trial court is attacked by plaintiffs in their first twenty-two points of error.

At all times pertinent to this appeal, defendant had exclusive control of substantially all of the properties that were eventually partitioned by the trial court. Technically, from May 6, 1968, when the trust which was created by the joint and mutual will terminated, until February 26, 1976, when the judgment which has been appealed was signed by the trial judge, an undivided seven-eighths (⅛) interest in the properties was owned by the parties to this appeal in their individual rights as tenants in common, and the remaining one-eighth (⅛) was owned by the Estate of Isabel M. Gonzalez, Deceased. The qualification by Juan M. as independent executor of Isabel’s Estate, and the power and authority which he had by virtue thereof, affected only the one-eighth (Vs) undivided interest owned by Isabel’s Estate. It did not affect the remaining undivided seven-eighths (Vs) interest.

There is no question but that Juan M., in his capacity as independent executor of Isabel’s Estate, had the authority to incur expenses reasonably necessary to properly accumulate and preserve the properties belonging to her estate, including the incurring of reasonable attorney’s fees, court costs and expenses of litigation which related to the suit for the construction of the will of Juan and Isabel. See Humane Society of Austin and Travis County v. Austin National Bank, 531 S.W.2d 574 (Tex.Sup.1975). There is no contention that such expenses were not reasonable.

Special Issues 40, 42 and 43 relate to the allowance of attorney’s fees; however, each issue raises a separate point, i. e., should attorney’s fees be allowed “in connection with the probate of the will of Isabel and other services related to such probate,” or “for the general care of such property”, or for “construing the will.” The only Special Issue which is attacked is No. 43, which relates to attorney’s fees for construing the will. The construction of a will (where serious questions are presented) is normally an incident to the administration of the estate, and need not result in litigation testing the extent of the executor's authority. In fact, it seems probable that the trial court disallowed the attorney’s fees of Juan M. for the defense of his authority since the court also assessed the attorney’s fees which accrued after the First Gonzalez Case against Juan M. The credit for attorney’s fees in the suit to construe the will was proper.

The trial court did not abuse its discretion in allowing a credit for all the expenses that were found to be necessary in the care, maintenance and preservation of properties which belonged to Isabel’s Estate. The difficulty here presented is that no issue was requested and none was submitted which separately asked for a determination of the expenditures insofar as they pertained to the undivided one-eighth (⅛) interest in the properties belonging to Isabel’s Estate. The issues asked for a determination of all expenses, which included those which affected the seven-eighths (⅛) jointly owned property as well as the one-eighth (Vs) owned by Isabel’s Estate.

Juan M., in making the contested expenditures, was acting in a dual capacity, i. e., that of executor and that of tenant in common. His actions were in good faith and in accordance with his interpretation of the power and authority of the will. In this, he had the tacit approval and the authority of two trial judges, and it was not until the decision by this Court in the First Gonzalez Case became final that he was informed otherwise. Plaintiffs, in their brief, do not by reference to the record, advise this Court of the expenditures which were made from May 7, 1968 until the date the decision by this Court in the First Gonzalez Case became final, nor do they make special reference to the expenditures which were made subsequent to that date. The statement of facts contains 1178 pages of testimony, and hundreds of pages of exhibits. This Court should not be required to search the record and determine the expenses that were incurred prior to the date the decision in the First Gonzalez Case became final, and those that were incurred afterwards. We, therefore, treat the expenditures as did the trial court, and consider all of them as being made by a person who was both an executor and a tenant in common during the entire period of time in question.

The duty to preserve the common property rests on all of the tenants in common. Since the care, maintenance, upkeep and preservation of the property rests upon the owners collectively, a tenant in common who expends common funds for the necessary or proper preservation of the common properties is entitled in a judicial partition of the jointly owned properties to have all such expenditures charged to the tenants in common in accordance with their pro-rata ownership. Wooley v. West, 391 S.W.2d 157 (Tex.Civ.App.—Tyler 1965, writ ref’d n. r. e.); Poeniseh v. Quarnstrom, 386 S.W.2d 594 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.).

We hold that the evidence fully supports the answers by the jury that the several sums of money expended by Juan M. for bookkeeping and telephone answering services, payroll taxes to persons other than himself, purchase of an automobile, operating costs of and insurance policy on the automobile, accounting fees, notifying tenants to vacate, and miscellaneous expenses, were reasonably necessary for the care, upkeep and preservation of the properties owned by the parties as tenants in common. The plaintiffs are required, on partition of the properties, to each bear one-eighth (Vs) of such expenses. The fact that compensation in the total sum of $16,-800.00 was paid to Genevieve Gonzalez, wife of Juan M., for bookkeeping and telephone answering services is immaterial. She rendered valuable services to all parties, plaintiffs and defendant. Those services were reasonably necessary. All parties should pay their fair share of such expenses. The judgment, in effect, correctly required that all parties contribute equally in the payment of the expenses which plaintiffs contend should have been charged to Juan M. Plaintiffs’ points 1 through 22 are overruled.

The trial court acted properly in assessing one-half of the court costs against plaintiffs. The matter of taxing costs is within the sound discretion of the court. Broadway Plan v. W. L. Ravenstein, 364 S.W.2d 741, 745 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n. r. e.). Furthermore, Juan M. was partially successful in the litigation as he was allowed attorney’s fees in the suit to construe the will, and was also allowed the aforesaid expenses incurred by him in the care and preservation of the properties. H. Richards Oil Company v. W. S. Luckie, Inc., 391 S.W.2d 135 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.). No abuse of discretion is shown. Plaintiffs’ points of error twenty-three and twenty-four are overruled.

It is further contended by plaintiffs that the trial court erred in refusing to require Juan M. to pay interest to them on the monetary value of their share of the properties from May 15, 1968 to date of judgment. The contention cannot be sustained. Interest is recoverable as a matter of law where damages, either ex contractu or ex delicto, are complete at a definite time and the amount of such damages is determined by fixed rules of evidence and known standards of value. Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897); Hayek v. Western Steel Company, 469 S.W.2d 206 (Tex.Civ.App.—Corpus Christi 1971, affirmed 478 S.W.2d 786); Statler Hotels v. Herbert Rosenthal Jewelry Corporation, 351 S.W.2d 579 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.). This ease does not fall within that rule.

Furthermore, the judicial determination that Juan M. was not entitled to partition the property under the terms and provisions of the will did not become final until November 24, 1971, when the Supreme Court refused a writ with the notation “no reversible error” in the Second Gonzalez Case, and the partition itself was not accomplished until trial of the present case. Moreover, the judgment states:

“. . . the total agreed value of the property owned by the parties agreed to solely as an arbitrary figure for purposes of partitioning under the stipulation but for no other purpose is the sum of $943,-840.00, and that each of the parties is entitled to select and receive real property so valued at $134,834.00.” (Emphasis supplied).

There is nothing in the record which tends to establish the value of the properties other than the stipulation, which, by its very terms is stated to be an arbitrary figure and is to be used only for the purposes of partitioning the properties. That value could not be used for the purpose of determining the amount of damages. Under the record here presented, the amount of damages, if any, sustained by plaintiffs because of the failure to partition the properties immediately following their demand in October, 1968, was not determined at the trial by fixed rules of evidence and known standards of value. Plaintiffs’ points -25 and 26 are overruled.

The jury further found: that Adolfo Gonzalez, Arnolfo Gonzalez, and Jose Gonzalez each requested Juan M., on or about March 16, 1968, to qualify as Executor under the Will and to take possession and control of the properties involved; that Juan M. had been reasonably led to believe by the language of the joint and mutual will that he had been appointed to serve as Executor to manage the joint estate created by the will; that plaintiffs and defendant agreed “on or about May 15,1968 that Juan Gonzalez would probate the will and manage and control the properties from their mother and father during the regular course of administration”; that it was necessary in the management, maintenance, care and preservation of the properties involved to incur the expense of a manager of the rental properties; that Juan M. provided those services; and that $31,200.00 was reasonable compensation for such services. The trial court, in the judgment, disregarded those findings solely on the ground that they were immaterial as a matter of law, and, as already stated, refused to allow any compensation to Juan M. for his services as manager of the properties, and further charged all such sums of money paid by Juan M. to himself as manager to him. Those actions by the trial court are the subject of defendant’s cross points 1 through 4.

Juan M. does not seek any fees allowable by the Texas Probate Code as executor of Isabel’s Estate. There is no showing of any relationship between the amount of fees to which he would be entitled as an executor and the compensation sought by him for his services in managing the properties. In substance, he merely claims that he is entitled to compensation for personal services incident to the management of properties.

A tenant in common who takes control of property which he owns in common with others, in the absence of an agreement with the other tenants in common, is not entitled to compensation for personal services rendered in managing the jointly owned property. 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 39 (1965). There is no such agreement in this case. The trial court correctly charged defendant with all moneys which he paid to himself as compensation for managing the properties and properly considered that factor in partitioning the properties. Defendant’s cross points are overruled.

The judgment of the trial court is AFFIRMED.


author: PER CURIAM. PAUL W. NYE, Chief Justice GERALD T. BISSETT, Associate Justice HORACE S. YOUNG, Associate Justice

text:
    CONTINENTAL OIL COMPANY et al., Appellants, v. Richard B. DOBIE et ux., Appellees.
    No. 1197.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 12, 1977.
    Rehearing Denied June 2, 1977.
    William E. Geer, Keys, Russell Seaman & Mansker, Corpus Christi, for appellants.
    Harry J. Schulz, Three Rivers, for appel-lees.
   OPINION

PER CURIAM.

This -case is before us on appellants’ motion for extension of time to file their brief and appellees’ motion to dismiss the appeal. A thorough recitation of prior motions and dates is helpful in determining the basis for our decision.

The transcript and statement of facts in this appeal should have been filed on January 10,1977. Rule 386, T.R.C.P. On January 11, 1977, the appellants tendered the transcript and were told by the Clerk of this Court that a motion for extension of time and for leave to file the transcript and statement of facts would be required under Rule 21c, T.R.C.P. The motion was filed and the time was extended. A second motion for extension of time to file the statement of facts was filed in which the appellants requested that the time be extended to March 4, 1977. The motion was also granted extending the time only until February 24,1977. The statement of facts was then approved by the parties and filed on February 24,1977. This filing set in motion the filing requirements of appellants’ and appellees' briefs. Appellants’ brief was due to be filed on March 26, 1977. Since this date fell on Saturday, its time was automatically extended until Monday, March 28, 1977. See Rule 4, T.R.C.P. Appellants did not tender its brief until April 18, 1977.

In the meantime, the Clerk of this Court, by letter dated March 8, 1977, notified the attorneys for all parties that the Court had set the case for submission and for oral argument on April 28, 1977. This date was 63 days after the statement of facts was filed in this Court. This notification gave the appellants ample time to file their brief and appellees sufficient time to file their reply brief before submission of the case.

The appellants’ excuse for its failure to timely file its brief was that it was under the “mistaken belief” that the time for filing of appellants’ brief was 30 days after a certain supplemental transcript was filed in this Court.

On March 21, 1977, the Clerk of this Court received a supplemental transcript from the District Clerk of Live Oak County. Appellees filed a motion for leave to file the supplemental transcript on March 24, 1977. On March 29, the appellants responded to appellees’ motion in which response, the appellants contended that the motion should be denied in part as to the depositions concerning two specific witnesses which were included in the supplemental transcript. The motion was not acted upon by this Court until March 31,1977, at which time the appellants’ brief was already three (3) days late.

The question presented by appellants’ motion for extension of time to file its brief and appellees’ motion to dismiss the appeal is whether or not appellants have shown “good cause” for not filing its brief on time.

Rule 414, T.R.C.P. provides that the appellants’ brief is due thirty (30) days after the filing of the transcript and statement of facts. The rule further provides that upon a showing of good cause, this Court may grant a party further time for filing his brief. Rule 415, T.R.C.P., provides that when an appellant has failed to file its brief in the time prescribed by the rules of civil procedure, the appellate court may dismiss the appeal for want of prosecution, unless there is a showing of good cause for the failure to timely file such brief and a showing that the appellee has not suffered material injury thereby. Appellants’ cause for the late filing as stated in its motion for leave to file its brief was the fact that appellants’ attorney “mistakenly believed” that the filing period (30 days) began from the date the supplemental transcript was filed, March 21, 1977. The appellants offer no other plausible excuse.

As a general rule, the Texas appellate courts have stated that good cause under Rule 414 exists only where the timely failure to file the brief was prevented by some event beyond the immediate control of the litigant and which was to some extent unforeseeable. Rodriquez v. Flores, 426 S.W.2d 285 (Tex.Civ.App.—San Antonio 1968, no writ); Lee v. Owen, 404 S.W.2d 84 (Tex.Civ.App.—San Antonio 1966, no writ); Texaco Inc. v. Joffrion, 363 S.W.2d 827 (Tex.Civ.App.—Texarkana 1962, writ ref’d n. r. e.). The case of Weaver v. Ham, 429 S.W.2d 687 (Tex.Civ.App.—Dallas 1968, no writ) is somewhat analogous to the case at bar. In the Weaver case, the appellant tendered her brief late. The only excuse offered for the late filing of the brief was that the appellant had been waiting to receive a copy of a supplemental transcript which had been requested by the appellee. The court held this was not a valid excuse and ordered the appellant’s tendered brief stricken. In the case of In re Salinas, 530 S.W.2d 633 (Tex.Civ.App.—Corpus Christi 1975, no writ), this Court denied an appel-lee’s motion for extension of time to file the brief when the only cause shown was that the appellee’s attorney was mistaken about the submission date. For some other examples of other facts which have been held not to constitute good cause, see Burns v. Allied Mills, Inc., 468 S.W.2d 119 (Tex.Civ.App.—Texarkana 1971, no writ) (other pressing matters); Pena v. Petroleum Casualty Company, 441 S.W.2d 657 (Tex.Civ.App.—Beaumont 1969, no writ) (appellee’s counsel told appellant the case would be compromised); Texaco Inc. v. Joffrion, supra (attorney had other pressing work); Julian v. Carrollton Independent School District, 346 S.W.2d 189 (Tex.Civ.App.—Texarkana 1961, no writ) (misplacing of file by attorney); Garlington v. Reed, 319 S.W.2d 367 (Tex.Civ.App.—Eastland 1959, no writ), (agreement between parties not to comply with rules of civil procedure); Krasner v. Abbott, 315 S.W.2d 45 (Tex.Civ.App.—San Antonio 1958, no writ) (appellants attorney engaged in criminal trial).

Rule 1, T.R.C.P., sets out the optimum objectives of the rules of civil procedure. They are to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. This rule admonishes the appellate court to give a liberal construction to the rules of civil procedure.

Rule 386, “Time to File Transcript and Statement of Facts” sets the time in which the due date for the record is to be filed.

Rule 414, “Briefs: Time for Filing, Etc.” states that the 30 days for the filing of appellant’s brief begins to run from the time the transcript and statement of facts are filed.

Rule 414 (time brief is due) relates only to Rule 386 (when record is due) and not to the rules that permit the record to be amended. Rules 428 and 429 allow either party, the trial court, or the appellate court to amend the record either before or after submission and do not relate in any way to the time for the filing of briefs. Even if we were to give the most liberal construction possible, these rules do not permit a party to an appeal to select his own filing date for his brief or to operate under its own interpretation of these rules, especially where the rules are clear and unambiguous. If the contrary were the case, we would have no orderly conduct of the trial or appellate process.

Next, the appellants have not shown that the appellees have not suffered material injury by the late tender of appellants’ brief. The rules of civil procedure provide that four weeks notice shall be given to the parties before a case is set for submission. It has been the policy of this Court for many, many years to give more notice than the rules provide. In most instances six weeks to two months notice of the setting is given to the attorney so that the attorneys can schedule their time more advantageously. This advanced notice also prevents unnecessary postponements of submission dates because of business or trial conflicts. Coupled with this policy are our local rules which state in effect, that submission dates will not be changed except upon a showing of good cause or in cases of emergency. The appellants acknowledged that they received a copy of our local rules. These local rules do not conflict with any of the Texas Rules of Civil Procedure. They only supplement such rules by suggestions to the attorneys who practice before this Court. These local rules remind the attorneys representing appellants to file their brief within 30 days after the transcript and statement of facts are filed.

It is, therefore, an additional factor which mitigates against the appellants’ position by the fact that the case was set for submission by notice mailed March 8, 1977 for a submission date of April 28, 1977. This advanced setting date gave the appellants and appellees each their allotted time to file their briefs in accordance with the rules of civil procedure. The appellants have not demonstrated good cause or emergency as a reason for rescheduling the submission of the case. It should have been very apparent to appellants’ attorneys that their brief was going to be due within the time prior to the setting of the case and at a sufficient prior time that would permit the appellees to file their brief in the allotted time provided by the rules.

It is a well established principle of law that an appellee has a valuable right to have a case heard and disposed of in its regular order. The untimely tender of appellant’s brief, if permitted to stand would deny appellee his allotted briefing time. Appellee contends it would amount to a material injury to his clients. We agree. See Rodriquez v. Flores, supra; Mitchell v. Gregg, 394 S.W.2d 665 (Tex.Civ.App.—Tyler 1965, no writ); Davis v. Morgan Drive Away, Inc., 391 S.W.2d 165 (Tex.Civ.App.—Tyler 1965, no writ); Graves v. Connecticut Gen. Life Ins. Co., 104 S.W.2d 121 (Tex.Civ.App.—Fort Worth 1937, writ dism’d); Stripling v. Spivey, 57 S.W.2d 173 (Tex.Civ. App.—Beaumont 1933, writ dism’d). If this Court were to have granted appellants’ motion for extension of time to file its brief, it would have left the appellees with only ten days in which to file their reply brief prior to submission. Such action is clearly contrary to the intent of Rule 414, T.R.C.P.

It is also curious to this Court that the appellants can claim any form of reliance on the supplemental transcript as a starting time for appellants’ brief. This is especially true in light of the fact that appellants’ brief was due four days after the appellees filed their motion for leave to file the supplemental transcript and this Court did not grant the motion until March 31,1977, some three days after appellants’ brief was due to be filed. Appellants then waited an additional 18 days before filing its motion for extension of time to file its brief. Although appellants’ attorney made some inquiries of the Clerk of the Court, he never made specific inquiry concerning the due date of his brief. If he was uncertain as to the correct interpretation of the rules or had there been any question as to the proper time to file appellants’ brief, all that the appellants’ attorney had to do was to ask the Clerk of this Court. Our local rules invite such inquiry. (See Appendix.)

We believe that the orderly process for the administration of justice requires the enforcement of the rules of civil procedure. The attorneys who practice before the Courts of this State must necessarily rely on such rules to govern their trial and appellate affairs.

We are not unmindful of the Supreme Court holding in Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.Sup.1977) which defines “reasonable explanation” as that term is used under Rule 21c, T.R.C.P. This ruling by the Supreme Court came as a result of the amendment of old Rule 386 by new Rule 21c. This gives the Courts of Civil Appeals greater latitude in determining within their discretion what would constitute “reasonable explanation” for the necessary late filing of the record. However, Rule 21c is not applicable to Rule 414. Rule 414 has not been amended. It still has as its governing standard, “good cause”. Even if Rule 21c was applicable to this situation, which it is not, an appellant would be required to file (his motion to extend the time within 15 days after its due date, otherwise the motion would come too late. Here, the appellants did not file its motion until 21 days after the last day for the timely filing of its brief.

We have carefully examined the record and do not find that this case presents fundamental error. We, therefore conclude that appellants’ motion for leave to file its brief should be denied. Appellees’ motion to dismiss this appeal for want of prosecution is GRANTED. The appeal is DISMISSED. Rule 415, T.R.C.P.; Cuellar v. H. E. Butt Grocery Company, 397 S.W.2d 873 (Tex.Civ.App.—Corpus Christi 1965, no writ); Moorman & Singleton v. Simmons, 360 S.W.2d 548 (Tex.Civ.App.—Waco 1962, writ ref’d) 364 S.W.2d 188 (Tex.Sup.1963).

APPENDIX

THIRTEENTH COURT OF CIVIL APPEALS LOCAL RULES AND SUGGESTIONS TO ATTORNEYS

The following is a list of the local rules and suggestions which this Court wishes the attorneys who practice before it to follow. We have prepared this memorandum as an aid to all of the attorneys who practice before our Court.

I. RECORD

Occasionally a transcript is received which has no index. Please be sure the transcript includes an index.

The statement of facts often consists of more than one bound volume and several separate exhibits. In such cases, the court reporter’s certificate should refer to the typewritten pages of trial testimony plus the exhibits (in bound volumes, envelopes, boxes, etc.) as part of the statement of facts. The court reporter is also advised to list in the index where the exhibits can be located, especially if there is a separate volume for such exhibits.

Make sure the statement of facts has been signed by the attorneys or the trial judge before presenting it for filing. See Rule 377, T.R.C.P.

II. BRIEFS Rules 414-422, T.R.C.P.

All briefs should be short and succinct. Three copies of each brief are required. It is preferred that briefs be typed on 8V2 by 11 inch paper and fastened on the side.

A. Points of error. Points of error should not be excessively numerous. Generally an appellant should be able to win a reversal of the case, if at all, in 20 or fewer points of error. The best point for reversal should be stated first; the second best, second; etc. Complaints of like nature may be grouped under a single point of error.

The point of error should state the complaint clearly and concisely. Nevertheless, the Court will consider the point even though the error is stated in only general terms, provided the Court can determine the cause of the complaint from the point of error and the argument thereunder. The brief is subject to being stricken, however, if there are numerous repetitious points or shades of the same ground of error. Remember the brief should be BRIEF! The Court may require rebriefing as authorized by Rule 422, T.R.C.P., if there are an excessive number of points of error or the brief is unnecessarily lengthy. See In Matter of M.A.G., A Child, 541 S.W.2d 899 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).

B. Time for filing briefs. Appellant's brief is due 30 days after the complete record (statement of facts, where appropriate, and transcript) is filed with the Clerk of the Court. Appellee’s brief is due 25 days after the appellant’s brief has been filed. If either brief is late, it must be accompanied by a sworn motion for leave to file the brief, stating the cause for its tardiness. See Rule 414, T.R.C.P. Reply briefs may be filed as a matter of right up to the date of submission and oral argument. The Court always welcomes any help it may receive from the attorneys. However, reply briefs must be only in reply to the opponent’s brief.

C. Postsubmission Briefs.

1. Requested by the Court — during oral argument, the Court may request additional briefs. Such briefs must be filed at the time stated by the Court, or if no time is specified, at a reasonable time after oral argument.

2. Requested by an attorney — attorneys who want to file a postsubmission brief on their own must file a motion for leave to file the brief setting out pertinent facts why the brief should be filed. If the Court rules favorably on the motion, the postsubmission brief may be filed at the time suggested by the Court. The opposing party may file a reply to the motion to file a postsubmission brief, and may also, upon the granting of a proper motion, file its own postsubmission brief.

D.Citations. In preparation of briefs, this Court requires that citations conform to the Texas Rules of Form, 3rd Edition (1974), published by the Texas Law Review. If the case was decided by an intermediate court, the name of the court and the writ history must be included.

For example:

Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d w. o. j.)

This Court does not want the Texas Reports citations. Supreme Court cases should be cited as follows:

Lindley v. Lindley, 384 S.W.2d 676 (Tex.Sup.1964)

III. SUBMISSION AND ORAL ARGUMENT

A. Submission day is Thursday, and docket call is at 9:00 a. m., unless otherwise specifically stated.

B. Argument time: Appellant — 30 minute opening, and 10 minute rejoinder; ap-pellee— 30 minutes. When the green warning light comes on, the attorney has 2 minutes left to conclude his argument. When the red light comes on, the attorney’s time has expired. If multiple attorneys are arguing, the argument time should be divided by agreement among the attorneys. If agreement cannot be reached or if additional time for argument is sought, the Court should be advised of this fact at the time the Court calls for announcements on submission day.

C. Cases cited during oral argument that are not contained in the original briefs must be presented to the Clerk and opposing counsel in writing prior to argument.

D. Out-of-state attorneys must be admitted to practice before the Court. We have forms for this upon request.

E. All attorneys are required to dress in appropriate business attire while in Court (men: coat and tie; women: dress, suit, or pantsuit).

F. Attorneys are required to sign the attorney register on the Clerk’s desk in the courtroom when they arrive.

G. The Court is familiar with the case before oral argument, having read the briefs and discussed the case in conference. However, the appellant should begin the argument with a short-complete statement of the nature of the case and the basis for reversal.

H. An attorney who wishes to waive oral argument should notify the Clerk as soon as possible after notice of submission date; otherwise, the Court expects oral argument.

I. There will be no smoking in the courtroom.

J. No photograph or sound recording is to be made in the courtroom without prior permission by the Court.

IV. MOTIONS

All motions containing any factual allegations must be sworn to. The Court requires 3 copies of all motions. The Court encourages agreed motions between attorneys. Rule 409, T.R.C.P., provides for a 10-day delay after notice of filing before motions are ruled upon. This gives the opposing party an opportunity to reply. However, if the opponent joins in the motion or replies to the motion before the expiration of 10 days, the Court will consider the motion without further delay. If an attorney opposes a motion, such opposition should be accompanied by a short brief.

Only in rare instances will the Court permit a hearing on a motion. Ordinarily motions are ruled on and the attorneys are notified of the rulings by letter. It is not necessary for attorneys to submit proposed orders.

The Court does not grant relief in excess of that which is prayed for. Therefore, the attorneys should not wait for a ruling by the Court, but should meet all deadlines and perform all other actions in the time and manner requested in their motions even if no ruling has been made.

Whenever a document may be filed as a matter of right, there is no need to accompany the document with a motion for leave to file it. However, such a motion must accompany documents offered for filing after the date for filing has passed (e. g. a supplemental transcript tendered after the due date for filing the transcript), and must set out reasons to support its filing. If a document is received along with a motion for leave to file it, the document will be designated “received”. Should the motion be granted, the document will be filed as of the date it was initially received unless otherwise stated.

A. Motions for extension of time to file record.

1. Such motions should be filed, in triplicate, in the manner and within the time provided for in Rules 21c, 384, 385, 386, and other rules relating to the particular character of the case. For “reasonable explanation” under Rule 21c, see: Hildyard & Rio Ray Citrus, Inc. v. Fannel Studio, Inc., 547 S.W.2d 332 (Tex.Civ.App.—Corpus Christi 1977) and Meshwert v. Meshwert, 543 S.W.2d 877 (Tex.Civ.App.—Beaumont 1976), aff’d 549 S.W.2d 383 (Tex.Sup.1977).
2. Motions should state each of the items below which are applicable:
(a) whether it is a first or subsequent application;
(b) date judgment was rendered in trial court;
(c) date motion for new trial, if any, was filed;
(d) date amended motion for new trial, if any, was filed;
(e) date to which hearing on motion for new trial was extended;
(f) date motion for new trial was overruled or was overruled by operation of law;
(g) date notice of appeal or appeal bond was filed;
(h) date transcript and statement of facts were requested;
(i) date record was due to be filed here;
(j) reason for delay;
(k) length of extension desired, setting out the date to which an extension is requested. (Attorneys should allow an additional week or 10 days beyond the date the court reporter estimates delivery for the statement of facts to be approved by opposing counsel or the trial judge.)
3. Such motions should be sworn to and be supported by affidavit as to facts alleged. If the reason for delay is the inability of the clerk or court reporter to meet the due date, the motion should be accompanied by an affidavit from the clerk or court reporter explaining the cause for delay and giving an estimated completion date. The Court reporter should state the names of the specific cases that he or she is working on. A very detailed affidavit is required when the statement of facts is not completed when initially estimated and a second or third motion to extend time is necessary.

B. MOTIONS FOR EXTENSION OF TIME TO FILE BRIEFS

1. Such motions must be verified and should be filed, in triplicate, before time for filing the brief has expired.
2. Motions should state:
(a) date the record was filed in this Court;
(b) if motion is by appellee, date appellant filed his brief;
(c) whether or not the cause has been set for submission, and if so, when; Important note: the Court will not reset submission dates except in cases of emergency;
(d) number of days’ extension requested, setting out date requested; and
(e) reason for delay.

V. COSTS (Rule 388a T.R.C.P.). Make checks payable to Clerk, Court of Civil Appeals.

$25.00 — filing fee for regular case on appeal.
5.00 — original filing of motion for extension of time to file the record; an additional $20.00 is required if motion is granted.
10.00 — motion for leave to file for writ of mandamus, prohibition, injunction, and other like proceedings originating in Court of Civil Appeals; $15.00 additional deposit if motion is granted.
10.00 — motion for affirmance on certificate.
10.00 — any other original motion or proceeding where no record has been filed.

APPLICATION FOR WRIT OF ERROR— please note that two deposits must be made:

$10.00 — filing fee to Clerk, Supreme Court of Texas (Rule 485, T.R.C.P.)
$12.50 — transportation costs, to Clerk, Court of Civil Appeals (Rule 473, T.R.C.P.)

The Court thanks you for your cooperation. The Clerk of our Court is an attorney and will be happy to assist you in any way if you have any questions concerning these rules.

PAUL W. NYE, Chief Justice

GERALD T. BISSETT, Associate Justice

HORACE S. YOUNG, Associate Justice

ADOPTED on this, the 21st day of March, 1977.

      . See Appendix — Local Rules and Suggestions to Attorneys, and see II-B and IV-B of such rules.


author: McCLOUD, Chief Justice.

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant, v. OAK CLIFF BANK AND TRUST COMPANY, Appellee.
    No. 4995.
    Court of Civil Appeals of Texas, Eastland.
    May 12, 1977.
    Rehearing Denied June 9, 1977.
    David Herndon and Duncan Boeckman (Golden, Potts, Boeckman & Wilson), Dallas, for appellant.
    Harry A. Deford, II, Oak Cliff Bank and Trust Company, Legal Dept., Dallas, for appellee.
   McCLOUD, Chief Justice.

Plaintiff, Federal National Mortgage Association sued defendant, Oak Cliff Bank and Trust Company, for breach of contract. At issue is whether defendant was required to assign to plaintiff a $25,187 letter of credit when defendant assigned a mortgage to plaintiff. Following a nonjury trial, judgment was entered for defendant. Findings of fact and conclusions of law were filed. We affirm.

On January 9, 1970, defendant, as mortgagee, James C. Huett, as sponsor, and Barclay Square Apartments, as proposed mortgagor, were issued a “Commitment for Insurance of Advances” by the Federal Housing Commissioner (FHA) insuring a $1,983,-900 mortgage note held by the bank on an apartment project in Dallas, Texas. The commitment provided in part:

“(4) The Mortgagor shall establish to the Commissioner’s satisfaction that, in addition to the proceeds of the insured mortgage, the Mortgagor has funds in the amount of $25,187, or has made financial arrangements acceptable to the Commissioner in order to meet the expenses of the project from the date of initial occupancy until 12 months after the date of final endorsement as the Commissioner estimates is necessary to establish a profitable operation. The funds shall be deposited with the Mortgagee or other depository acceptable to the Commissioner on or before the date of initial endorsement, and such funds shall be held in a special account under an agreement approved by the Commissioner.”

Paragraph 20 of the FHA insurance commitment, which was a typed addition to the printed form contract, provided:

“Sponsor to furnish additional funds, FHA Form 2476 and FHA Form 2477, in the amount of $25,187.”

On January 14, 1970, plaintiff, FNMA, entered into a written “Advance Commitment Contract” with defendant whereby FNMA agreed to purchase from defendant the $1,983,900 mortgage note. The commitment provided in part:

“12. The term ‘mortgage’ as used in this commitment contract shall be construed to include the security instrument, together with the obligation secured thereby and the title evidence and all other documents, instruments, and other papers pertaining thereto.”

Paragraph 7 of the agreement provided:

“7. The Seller, promptly after being informed of disbursement by the Corporation in execution of this commitment contract, shall remit to the Corporation or dispose of otherwise, in conformity with instructions from the Corporation, the total amount of the balance and the entire contents of every deposit account of the mortgagor, . . . ”

Oak Cliff Bank and Trust Company issued a $25,187 irrevocable commercial letter of credit on February 12, 1970, which provided that “Oak Cliff Bank and Trust Company as Mortgagee under F.H.A. Project No. 112-35088-PM Dallas, Texas” was authorized to draw at sight for the account of “Barclay Square Apartments” the sum of $25,187. The letter of credit stated it would expire on May 12,1972, and provided drafts must be accompanied by the following documents:

“Statement signed by Barclay Square Apartments, a Texas Joint Venture, and Oak Cliff Bank and Trust Company, as Mortgagee Under F.H.A. Project No. 112-35088-PM, that proceeds of such draft are to be used to establish the profitable operation of said Project in order to meet expenses of said Project from the date of initial occupancy and until twelve months after the date of final endorsement of the Project by F.H.A.”

On that same date, February 12, 1970, James C. Huett and Avery Mays, as sponsors of the Barclay Square Apartments project, entered into an Escrow Agreement with defendant as “Depository” which provided:

“ESCROW AGREEMENT
ADDITIONAL CONTRIBUTION BY SPONSORS
WHEREAS, James C. Huett and Avery Mays are sponsors of a project located in Dallas, Texas, identified as FHA Project No. 112-35088-PM, which project has been, is being, or will be, constructed from the proceeds of a mortgage (or deed of trust) from Barclay Square Apartments to Charles H. Storey & Willard Gragg, with respect to which mortgage the Federal Housing Commissioner has issued his commitment to insure, and without which insurance financing of the construction of the project as proposed by the sponsors could not be obtained, and WHEREAS, said commitment is conditioned upon assurance that additional funds be made available for project purposes, primarily for the absorption of any deficit resulting from the operation of the project during the initial period of occupancy;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
1. That the sponsors have deposited with Oak Cliff Bank and Trust Company, Depository,
_(a) in cash,
X (b) by an unconditional irrevocable letter of credit issued to Depository by a banking institution,
_(c) in United States bearer bonds at market value,
$25,187.00, receipt of which is acknowledged by the Depository, to be held and disbursed by the Depository as hereinafter set out.
2. Said deposit shall be held subject to disbursement at the direction of the Commissioner for a period of 12 months following final endorsement of the mortgage loan for insurance plus any additional period by which the beginning of amortization of the loan may be deferred. Disbursements from the escrow may be authorized monthly by the Commissioner to meet any cash deficit in the operation of the project for the period immediately following substantial completion of construction. In determining the amount of such cash deficit, effect will be given to the mortgagor’s payments for amortization and deposits in the Reserve for Replacements, but no effect will be given to depreciation, officers’ salaries, and management fees paid to the owners or sponsors of the project or their nominees.
3. The deposit will be subject to immediate application to the mortgage debt in the event of default under the mortgage at any time prior to the expiration of the escrow period.
4. IT IS UNDERSTOOD AND AGREED that at the expiration of the escrow period, or at such earlier date as the Commissioner determines that the project has achieved sustaining occupancy and income, any balance remaining on deposit will be returned to the sponsors, without interest.
5. IT IS FURTHER UNDERSTOOD AND AGREED that the ‘Depository’ will hold and disburse this escrow at the sole direction of the Commissioner; and the sponsors hereby authorize the Depository, in the event the deposit hereunder is other than in cash, to draw against the letter of credit or to sell the bonds to the extent necessary to provide the cash necessary to make the disbursements directed by the Commissioner.”

On or about June 3, 1971, plaintiff purchased the mortgage from defendant and defendant submitted various documents to plaintiff. The $25,187 letter of credit or the related escrow agreement was never delivered to plaintiff. The mortgagor failed to make the required payments and on or about October 19, 1971, plaintiff assigned the mortgage to FHA. On or about October 7,1971, prior to the assignment to FHA, plaintiff was instructed by FHA to draw on any unexpended letters of credit and apply the cash in accordance with instructions from the FHA comptroller. The $25,187 letter of credit expired by its own terms on May 12, 1972. In the final settlement of plaintiff’s claim with FHA in 1973, FHA deducted $25,187 from the amount claimed by plaintiff, contending that the escrow agreement provided in paragraph 3 that the deposit was subject to immediate application to the mortgage debt in the event of default at any time prior to the expiration of the escrow period. FHA took the position that since default date was July 1, 1971, and the expiration date of the $25,187 letter of credit was May 12, 1972, the sum of $25,187 was properly deducted from the amount claimed by plaintiff.

Plaintiff argues that since the FHA deducted $25,187 from plaintiff’s claim, defendant is liable to plaintiff for such amount because if defendant had assigned the letter of credit to plaintiff as required by the “Advance Commitment Contract,” plaintiff would have drawn the $25,187 before assigning the mortgage to FHA on October 19, 1971.

The trial court found defendant acted in more than one capacity during the transactions between the parties. The court found the defendant acted as mortgagee, issuer of letters of credit, and as escrow agent. The court expressly found, and the finding is not properly challenged, that defendant was acting as an “Escrow Agent (Depository) on the Escrow Agreement, F.H.A. Form 2476A and not as a Mortgagee.” See Haag v. Pugh, 545 S.W.2d 22 (Tex.Civ.App.—Eastland 1976, no writ).

The court concluded defendant followed the terms and conditions set forth in the “Escrow Agreement” and plaintiff failed to establish a breach of contract.

The court found, either expressly or impliedly, the $25,187 letter of credit and escrow agreement were related and the letter of credit was to be disbursed only in accordance with the terms of the escrow agreement. The escrow agreement provides that the defendant, as depository, will hold and disburse the escrow at the sole direction of FHA. Defendant was never directed by FHA or plaintiff to disburse the escrow funds prior to May 12, 1972, the expiration date of the letter of credit. The defendant as depository had the duty to carry out the terms of the escrow agreement in the manner prescribed in the instrument. Hanby v. First National Bank of Hereford, 163 S.W. 415 (Tex.Civ.App.—Amarillo 1914, writ ref.); Barber v. First State Bank of Hereford, 37 S.W.2d 808 (Tex.Civ.App.—Amarillo 1931, no writ).

There is some evidence to support the court’s finding that as to the $25,187 letter of credit and escrow agreement, the defendant was acting as a depository and not as a mortgagee. As a mortgagee, defendant was required to furnish plaintiff certain documents when it assigned the mortgage to plaintiff. Defendant was not, however, required to assign instruments or documents in which it was acting as a depository and not as a mortgagee.

We have considered all points of error and all are overruled. Judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    LONE STAR GAS COMPANY, Appellant, v. Arnita Jean ROACH et al., Appellees.
    No. 5685.
    Court of Civil Appeals of Texas, Waco.
    May 12, 1977.
    Rehearing Denied June 16, 1977.

      Joe N. McClendon, Jack Pew, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellant.
    Jerry L. Calhoon, McDonald, Calhoon & Kolstad, Palestine, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Lone Star Gas Company from judgment of $108,400. rendered against it in favor of plaintiffs (widow, children, mother and Estate of Herbert Roach) in a wrongful death action. Roach’s death was caused by the explosion during a test being conducted by defendant of certain gas well equipment belonging to Roach’s employer..

Plaintiffs sued defendant Lone Star Gas Company, alleging Herbert Roach was killed June 19, 1973 in an explosion at the site of a gas well in Leon County; that the explosion occurred while Lone Star was conducting a test on a pop-off valve; that the explosion was proximately caused by the negligence of Lone Star’s employees while in the course and scope of their employment; that this suit is brought under the Wrongful Death Statute and under the Survival Statute of Texas; and prayed for $501,410. damages.

Texas Employers Insurance Association intervened asking subrogation to plaintiffs’ cause of action to amounts it had paid in Workmen’s Compensation benefits on account of the death of deceased.

Trial was to a jury which found:

1)On the occasion in question Ed Wilson was negligent in failing to remove the pop-off valve for purposes of testing, and in failing to use the hydraulic equipment for testing; and such negligence was a proximate cause of the occurrence.
2)Ed Wilson was an employee of Lone Star Gas Company in the course and scope of his employment.
6) Roach was not negligent in failing to remove the relief valve from the separator for it to be tested.
8) 9) 10) Arnita Roach was damaged $36,000.; Barry Roach was damaged $20,000.; Herbert Roach wad damaged $50,000.; Hazel Roach was damaged $1,000.

The trial court overruled defendant’s motion for judgment N.O.V., and upon the jury’s verdict (plus a stipulated amount for funeral expenses) rendered judgment for plaintiffs and intervenor for $108,400.

Defendant Lone Star Gas appeals on 16 points contending:

1) There is no evidence and/or insufficient evidence to support the jury’s findings of negligence against Lone Star Gas.
2) There is no evidence and/or insufficient evidence to support the jury’s findings of' proximate cause against Lone Star Gas.
3) The undisputed evidence and great weight and preponderance of the evidence was the accident was proximately caused by Roach’s contributory negligence in failing to take the pop-off valve off the separator for testing.
4) There are prejudicial evidentiary errors committed by the trial court.

The jury found that on the occasion in question Ed Wilson was negligent in failing to remove the pop-off valve and failing to use the hydraulic equipment in testing.

Herbert Roach, an employee of Lone Star Producing Company, was killed when struck by a part of a “drip pot” when such “drip pot” exploded at a pressure of 740 lbs per square inch. The drip pot was located on the site of Producing’s A. G. Hill No. 1 gas well in Leon County and was owned by Producing. Producing sells gas produced at the well to Lone Star Gas Company. Ed Wilson an employee of Lone Star Gas had gone to the site of Hill No. 1 well for the purpose of complying with instructions in a memorandum from one of his superiors at Lone Star Gas. This memorandum, directed defendant’s employee to speed up “testing of all purchase point relief valves (the pop-off valve). These are to be completed by June 30, 1973 * * * . They must be completed by the deadline”.

A schematic diagram of the well hookup follows:

EXHIBIT

Roach was standing at the separator near the pop-off valve being tested when the drip pot blew up at 740 lbs pressure decapitating him. The normal well pressure of 500-600 lbs was being increased by Wilson to 750 lbs to test the pop-off valve. The same pressure was upon the drip pot as upon the pop-off valve.

The author of the memorandum, Ted Williams, testified that he meant by the memorandum to put the responsibility for the testing on his subordinates (here Ed Wilson); and that he had arranged for Wilson to have a portable hydraulic pump for use in making the test. Witness Burnett, a supervisor of Roach’s employer testified it was not Roach’s responsibility to test and set the pop-off valves. Wilson testified he gave directions during the test. Earlier in the day Wilson accompanied by Roach had tested another well — by taking the pop-off device off of the separation and testing it with the hydraulic hand pump. Wilson on the occasion of the accident was testing the pop-off valve, leaving it on the separator, and utilizing pipe line pressure to accomplish the test. The pressure was too great for the drip pot, which was located on the same pressure line, it blew up and killed Roach. The pop-off valve could have been removed from the separator and tested with the hydraulic pump in a totally safe manner.

The evidence reflects the test was called for by defendant; that defendant’s employee conducted the test; that he had a safe manner in which to conduct the test, but instead chose to conduct it with the gas line pressure.

Defendant contends Lone Star owed plaintiff no duty because Lone Star did not own the equipment and same were under the control of Roach’s employer. We reject such contention. Lone Star undertook to test the pop-off valve, and consequently owed a duty to Roach. Coleman v. Hudson Gas & Oil Corp., Tex., 455 S.W.2d 701.

Wilson, Lone Star’s employee, created the danger by increasing the already high pressure of the well head in order to test the pop-off valve (at Lone Star’s command). He could have removed the pop-off valve and in complete safety tested it with the hydraulic pump which had been furnished for the very purpose of conducting this test. He tested a pop-off valve earlier the same day by removing it and using the hydraulic pump.

The evidence is ample to sustain the jury’s finding that Wilson was negligent in failing to remove the pop-off valve and then not use the hydraulic pump to test it.

Defendant contends there is no evidence and/or insufficient evidence that Ed Wilson’s negligence was a proximate cause of Roach’s death; and that Wilson could not be expected to foresee the drip pot would come apart if 750 lbs of pressure were applied to it. Wilson could see the drip pot was subject to pressure on the line; Wilson increased pressure on the line 25% to 50% higher than its normal operating range to make the test; safety precautions were violated in not removing the pop-off valve and testing with the hydraulic pump. The jury was authorized to believe and find that Wilson’s negligence was a proximate cause of Roach’s death, and that it was foreseeable that increasing the line pressure could cause a blow out and harm to Roach.

The jury found that Roach was not negligent in failing to remove the pop-off valve from the separator for it to be tested.

The testing was conducted by Lone Star Gas for its own purposes and by its own employee Ed Wilson. The witness Burnett a supervisor of Roach’s employer testified it was not a part of Roach’s authority to adjust the pop-off valve on the separator. It is true Wilson testified that Roach was actually conducting the testing when he was killed. But the jury apparently did not believe Wilson. He was an interested witness and his credibility and the weight to be given his testimony was within the province of the jury. Naylor v. Gutteridge, Tex.Civ.App. (Austin) NRE, 430 S.W.2d 726.

The finding of the jury acquitting Roach of contributory negligence is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Defendant further complains of two asserted prejudicial evidentiary errors. These complains are without merit.

All defendant’s points and contentions are overruled.

AFFIRMED.