text:
    W. T. PRICKETT et al., Appellants, v. LENDELL BUILDERS, INC., Appellee.
    No. 5147.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 7, 1978.

      Malcolm Robinson and William W. Ogden, Jr., Hooper, Robinson & Moeller, Austin, for appellants.
    Thomas A. Autry, Gotcher & Autry, Charles D. Penick, Kuhn, Collins & Rash, Austin, for appellee.
   RALEIGH BROWN, Justice.

This is a suit by a subcontractor against the general contractor and his surety on a payment bond alleging nonpayment of charges incurred for labor performed and materials supplied by the subcontractor. Trial was before the court. Judgment was rendered in favor of Lendell Builders, Inc., the subcontractor and against W. T. Prick-ett, the general contractor, Great American Insurance Company, the surety, Villa Constructors, Inc., the prior subcontractor, and Kalm Builders, Inc., the property owner. Only Prickett and Great American appeal.

Facts found by the trial court were largely undisputed. Lendell Builders, Inc., was a subcontractor on a project involving the construction of condominiums. W. T. Prickett was the general contractor. Villa Constructors, Inc., was a subcontractor to Prickett. All of Villa’s shares of stock were owned by Prickett, subject to a voting trust by a third party. Prickett was President of Villa Constructors, Inc. Lendell Builders, Inc., was a subcontractor to Villa Constructors, Inc. Great American Insurance Company issued a statutory payment bond to the owner, Kalm Builders, Inc., for and on behalf of W. T. Prickett as principal.

There is no dispute that Lendell Builders, Inc., was not paid for work it performed from June 25, 1974, to July 25, 1974. It delivered a written statement of this claim to Prickett on July 25, 1974. It also sent written notice of the unpaid indebtedness to the owner, Kalm Builders, Inc., which was received 56 days after the work was done and a second notice to Villa Constructors, Inc., which was received by Prickett on September 19, 1974, 56 days after the work was performed.

The court found:

“Lendell Builders, Inc. did not address notices of unpaid indebtedness to Great American Insurance Company or to W. T. Prickett, but notices addressed to Villa Constructors, Inc. were received by W. T. Prickett.”

Appellants argue the judgment of the trial court should be reversed and judgment rendered for them because (1) Lendell Builders, Inc., failed to comply with the statutory notice requirements for perfecting its claim and (2) Lendell’s written contract with Villa precludes recovery due to the lapse of a condition precedent with the owner’s insolvency.

As to the latter argument, appellants contend the language of the contract created a contractual condition precedent to Lendell’s right to receive payment, namely, that Lendell would not be paid until and unless Villa Constructors had likewise been paid by the owner’s interim lender, Continental Mortgage Investors Company.

They cite Article 5 of the contract governing the schedule of payments from Villa to Lendell. The relevant provision reads:

“Payment shall be made monthly, within five (5) days after Contractor (Villa Constructors) is paid for the same work by Continental Mortgage Investors . . ”

The court found:

“Neither Villa Constructors, Inc. nor W. T. Prickett received any funds from Continental Mortgage Investors Company for any work done during the months of July or August of 1974.”

Appellants maintain that the condition precedent failed to occur, thereby terminating Lendell’s right to recover payment. Such position is correct if the payment for the work is dependent upon the condition.

The court in Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894 (1924), considering the law relating to conditions precedent said:

“It is quite elementary that an instrument payable upon a condition which does not import an absolute liability is not payable until that condition has happened. Salinas v. Wright, 11 Tex. 572; Carlisle v. Hooks, 58 Tex. 420. See notes to case of Hughes v. McEwen, L.R.A. 1917B, pp. 1051 to 1057; Swift Coal & Timber Co. v. Lewis, 170 Ky. 588, 186 S.W. 479.”

Although Article 5 designated “Progress Payments” provided as set forth herein-above, Article 4 of the contract in question provides:

“In consideration of the prompt, complete, and faithful performance of every provision of this Subcontract to the satisfaction of Contractor, the owner, and the Architect, Contractor will pay to Subcontractor the sum of $109,645.00, an estimated contract price.”

Whether the parties intended that the payment obligation would become absolute only upon the occurrence of the alleged condition precedent must be determined by examining the entire agreement. The court in Citizens Nat. Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941) said:

“It is the duty of the court, in determining the meaning and intent of a contract, to look to the entire instrument; that is, the contract must be examined from its four corners. Stated in another way, the contract must be considered and construed as an entire instrument, and all of its provisions must be considered and construed together. It is not usually proper to consider a single paragraph, clause, or provision by itself, to ascertain its meaning. To the contrary, each and every part of the contract must be construed and considered with every other part, so that the effect or meaning of one part on any other part may be determined . . .”

Article 4 provides, “The Contractor shall pay the Subcontractor in current funds for the performance of the work.” Article 5 provides, “The Contractor shall pay the Subcontractor monthly progress payments in accordance with Paragraphs 12.3 through 12.6 inclusive of this Subcontract.” By examining the contract in its entirety, we hold the condition precedent clearly applied to the monthly progress payments and when such payments would be made, not to the issue of whether payment would be made. We disagree with appellants that the contract with Villa precludes Lendell’s recovery due to the lapse of a condition precedent with the owner’s insolvency.

Article 5472d(4), V.A.C.S., provides two methods by which a claim may be perfected against a bond. The first is by giving to the original contractor all applicable notices of claims required by Article 5453, V.A.C.S., and, in addition thereto, by giving to the corporate surety, in lieu of to the owner, all notices therein required to be given to the owner. The second method is by complying with Article 5453, V.A.C.S.

Appellants argue that to recover on the bond under the facts in the instant case, Lendell Builders had the burden of proving its compliance with the procedure for perfecting a lien as required in Article 5453, V.A.C.S. Lendell concedes it did not give notice to the corporate surety and agrees that the issue before this court is whether it complied with the notice requirements prescribed by Article 5453, V.A.C.S.

The Lendell debt is that of a subcontractor. In such event, Article 5453(2)(b)(l) provides:

“Where the claim consists of a lien claim arising from a debt incurred by a subcontractor, the claimant shall give written notice of the unpaid balance of such claim to the original contractor not later than thirty-six (36) days after the tenth (10th) day of the month next following each month in which claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part; and claimant shall give a like notice to owner not later than ninety (90) days after the tenth (10th) day of the month next following each month in which the claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part.
Such notices shall be sent by certified or registered mail, addressed to the owner, and where required by this Article to the original contractor, at their last known business or residence address

The trial court in an unchallenged finding of fact found:

“The notice to Kalm Builders, Inc., the owner, was 56 days after the 1974 July work was done and 40 days after the 10th day of August, 1974.”

Since Lendell complied with the required notice to the owner, the issue to be resolved is whether it gave the required notice to the original contractor, W. T. Prickett.

The court found:

“Lendell Builders, Inc. delivered its third statement to Villa Constructors, Inc. on July 25, 1974, for work done during such period for $18,280.43, which was received by W. T. Prickett, which was not paid.”

And the court also found:

“Lendell Builders, Inc. sent notice of the July and August unpaid indebtedness to the owner, Kalm Builders, Inc., and to Villa Constructors, Inc., which was received by W. T. Prickett on September 19, 1974.”

Lendell bases its claim of compliance with the notice requirement of Article 5453(2)(b)(l) upon the written notice received by Prickett on July 25, 1974, not the notice received by Prickett on September 19, 1974. Such notice was timely filed and as delivered complied with the requirements of Article 5453, as “A copy of the statement or billing the usual and customary form shall suffice as a notice under this subparagraph.”

The notice, however, was not “sent by certified or registered mail, addressed . to the original contractor at their last known business or residence address.” The court found:

“Lendell Builders, Inc. did not address notices of unpaid indebtedness to Great American Insurance Company or to W. T. Prickett, but notices addressed to Villa Constructors, Inc. were received by W. T. Prickett.”

Article 5456, V.A.C.S., however, provides:

“Where any written notice or communication is required or permitted to be given by this Act, it may be delivered in person to the party or his agent and such delivery shall constitute compliance irrespective of other methods of notice or communications herein provided.”

Article 5456 and Article 5453 should be read together and considered as a whole. Lebo v. Dochen, 310 S.W.2d 715 (Tex.Civ.App.-Austin, 1958, writ ref’d n. r. e.).

The notice of the claim of Lendell Builders, Inc. was not sent by certified or registered mail nor under the court’s findings was notice delivered in person to W. T. Prickett. Therefore, the notice did not comply with the statutory notice requirement.

The judgment is reversed and judgment rendered that Lendell Builders, Inc. take nothing against W. T. Prickett, the general contractor and Great American Insurance Company.

DICKENSON, J., not participating.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Ex parte Kenneth Ray MOUILLE, Relator.
    No. 17261.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 14, 1978.

      Don R. Stewart, Walter R. Grimes, Houston, for appellant.
    Don C. Smith, Baytown, for appellee.
   PEDEN, Justice.

Kenneth Ray Mouille was committed to custody until he should cause his infant daughter to be delivered to the Family Court Services of Harris County. A temporary order signed on July 7, 1978, the same date as the order of commitment, had directed that the child “remain in the custody” of the relator’s wife. We agree with the relator’s contention that he was not afforded due process prior to commitment, and we order him discharged from custody.

On June 20,1978, the relator filed suit for divorce in the 246th District Court, and the next day that court issued a temporary restraining order against his wife, a writ of attachment for delivery of the parties’ child, and named the relator temporary managing conservator. Service of citation was had the same day upon Brenda Jean Mouille, the relator’s wife. She filed a cross-action for divorce and custody and asked for a temporary restraining order. On June 23, Judge Wells Stewart of the 308th District Court dissolved the temporary restraining order issued by the judge of the 246th District Court and ordered the juvenile probation officer to make an investigation into the home environment of the parties. The juvenile probation officer’s report reflects that Judge Stewart conducted another hearing on June 26 and denied visitation privileges to the relator.

The docket sheet shows that on July 6 the relator’s plea to the jurisdiction of the 308th District Court and his motion asking the judge to disqualify himself were denied. The case was transferred to the 308th Court.

The temporary order signed on July 7 recites that the parties appeared on June 26 in person and by their attorneys on their applications for temporary orders. The court set aside the earlier writ of attachment for the delivery of the child to the relator, and ordered that she “remain in the custody” of Mrs. Mouille, denied visitation privileges to the relator, temporarily restrained him from interfering with Mrs. Mouille’s possession of the child, and ordered that a social study be made.

This order of commitment was entered on the same day that the temporary order was signed, July 7:

“ORDER OF COMMITMENT
“BE IT REMEMBERED that on this the 7th day of July, 1978, came to be heard the above entitled and numbered cause wherein a SHOW CAUSE HEARING for temporary orders was had.
And it appearing to the court after hearing the testimony from the parties and witnesses, and after reviewing the results of voluntary polygraph examinations conducted on 6/6/78, that said KENNETH MOU-ILLE has made false statements in court. And, it further appearing to the court that KENNETH MOUILLE has secreted the minor child, Michelle Fowler, in violation of a temporary order of this court entered on the 26th day of June, 1978, and it further appearing to this court that the child’s safety and welfare are in question,
IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED by this court under the authority granted this court under § 11.11 of the Texas Family Code that the person of KENNETH MOUILLE be immediately attached and that said KENNETH MOUILLE be confined by the Sheriff of Harris County and remain confined in such custody until he shall cause to be produced the person of the child and deliver such child, Michelle Fowler to the managing conservator, Family Court Services, Harris County, Texas.
LET THEREFORE, COMMITMENT ISSUE to the Sheriff of Harris County, Texas accompanied by a certified copy of this order.
ENTERED this the 7th day of July, 1978.
/s/ Wells Stewart
Judge”

Clearly, this commitment is coercive and not punitive in nature even though it recites, based on unusual proof, that it appears the relator had made false statements in court.

“Civil contempt in Texas is the process by which a court exerts its judicial authority to compel obedience to some order of the court. Ex parte Werblud, 536 S.W.2d 542 (Tex.1976). One who is committed to jail for civil contempt should be able to find in the record a written order which meets the requirements of Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). It is the written order which is entered on the minutes, which a court is directed to sign by Tex.R.Civ.P. 306a, and which evidences one’s rights and duties.” Ex parte Padron, 565 S.W.2d 921 (Tex.1978).

To determine whether the relator was afforded due process in this quasi-criminal matter, we consider the entire record. Ex parte Cardwell, 416 S.W.2d 382 (Tex.1967).

The relator does not appear to have been served with any written notice of contempt charges against him. The temporary order provided that the child remain in the custody of Mrs. Mouille; the commitment recited that the relator has secreted the child in violation of the temporary order.

This case was one of constructive civil contempt, since the relator was committed for violating a court order and was ordered confined until he produced the child. In eases of constructive contempt, the court is required to follow’procedures of complaint, notice and hearing. Ex parte Harvill, 415 S.W.2d 174 (Tex.1967). During the course of a constructive civil contempt hearing the court may not, by making an oral order, avoid the notice requirements of due process by converting the hearing into one for direct contempt. (Direct contempt is the disrespectful conduct concerning the dignity and authority of the court committed in the presence of the court). If such an oral order is made, the accused is entitled to decline to comply. He is entitled to “assert the right for which he is on trial, and due process would be rendered for naught if such assertion could be converted into an act of direct contempt in the manner here shown.” Ex parte Padron, supra; Ex parte Harvill, supra.

We find no specific authority under Section 11.11 of the Family Code to support the action taken by the trial court in this matter.

In summary, the relator was ordered confined for constructive civil contempt for violating an oral provision that was put in writing the same day he was committed. The record does not reflect that the required procedures of complaint and notice were followed. We conclude that the relator was not afforded due process. We order him discharged from custody.


author: REYNOLDS, Justice.

text:
    HALE COUNTY, Texas, et al., Appellants, v. Harold G. DAVIS, Appellee.
    No. 8914.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 18, 1978.
    Rehearing Denied Oct. 16, 1978.

      Sheehan & Dubuque, Inc., William H. Sheehan and Steven M. Smoot, Dumas, for Gene and J. H. Kurklin. Law Offices of Bob Gibbins; Bob Gibbins, Austin, for Hale County, Texas.
    Day, Owen, Lyle & Voss, Gene V. Owen and Rudd F. Owen, Plainview, for appellee.
   REYNOLDS, Justice.

The primary issue in this appeal is the validity of a pipeline easement granted by a county in the subsurface of a county road owned by one individual for the private use of another. The trial court held the easement to be a nullity, ordered the pipeline removed, and permanently enjoined the nonowner use of the subsurface for private pipeline purposes. We affirm.

Harold G. Davis is the fee simple owner of the south one-half of Section Four, Block C-2, Hale County, Texas. Gene Kurklin and his father, J. H. Kurklin, own the northwest one-quarter of the same section. The west boundary line of Section Four is approximately in the middle of a county road which exists as a prescriptive easement along the entire length of the western side of the section.

The Kurklins have a pipeline easement extending across Davis’ land outside the road area. A six-inch steel pipe in the easement transported irrigation water from wells on the Kurklins’ land to J. H. Kurk-lin’s land situated directly south of Davis’ land. Due to the monthly expense of $1,000 to $1,200 associated with pumping the irrigation water across Davis’ land, Gene Kurk-lin sought, and offered to pay to secure, the permission of Davis to lay a pipeline down the county road. Davis refused permission.

Gene Kurklin then sought an easement from Hale County. On 9 February 1976, the county commissioners court granted to Gene Kurklin an easement for an irrigation water pipeline along, upon or across either side of the county road, conditioned that the pipe is buried thirty-six inches underground. A similar easement was granted 10 May 1976 for a gas pipeline to be buried thirty inches underground.

When installation began on or about the first of June, Davis requested that the work cease, but the pipelines were installed at a depth of four feet some ten to twelve feet east of the center line of the county road. The installed water pipeline is a twelve-inch plastic pipe carrying the same amount of water that formerly was pumped across Davis’ land through the six-inch line, which now is used only to transport excess tailwa-ter and rainwater collected in a lake. The installed pipelines, costing in excess of $24,-000, are for the exclusive use and benefit of the Kurklins, but they do not obstruct the use of the county road.

Davis brought this suit against Hale County and the Kurklins. He sought a judgment declaring that the February 1976 easement is a nullity and the pipelines a purpresture, ordering the pipelines removed, and fixing his damages.

Hearing the cause without the intervention of a jury, the trial court declared the February 1976 easement a nullity and the pipelines a purpresture, ordered the pipelines removed, and permanently enjoined the Kurklins from using that portion of the county road within the boundary lines of Davis’ land to install, construct and maintain the pipelines for private purposes. All other relief was denied. Findings of fact and conclusions of law consistent with the foregoing recitation were filed.

Appealing, both Hale County and the Kurklins first take issue with the court’s declaration that the pipelines are a purpresture. The Kurklins, quoting the definition of a purpresture from Hill Farm, Inc. v. Hill County, Texas, 425 S.W.2d 414, 417 (Tex.Civ.App.—Waco 1963), aff’d, 436 S.W.2d 320 (Tex.1969), and characterizing a purpresture as a private appropriation of or an encroachment upon rights belonging to the public, assert that only the proper public authority, and not Davis as a private person, can maintain an action on account of a purpresture. Hale County joins in the assertion and further advocates that because of Davis’ failure to affirmatively show the easement did not serve a public purpose, there is no support for the judgment based on a purpresture. These theories are not sufficient to invalidate the judgment rendered on the facts of this cause.

Davis, as the record establishes, owns the fee title to the land in which the pipelines were installed, subject only to the prescriptive easement for the county road. The rural road is one over which the commissioners court has general control, Tex. Rev. Civ.Stat.Ann. art. 2351, § 6 (1971), and, by virtue thereof, may authorize the use of the subsurface for purposes — e. g., for pipelines — that serve the public interest; yet, the fee owner, and not a stranger, has the right to use the subsurface in a manner that does not affect or impair the enjoyment of the public easement. Hill Farm, Inc. v. Hill County, Texas, 436 S.W.2d 320, 323 (Tex.1969). The logically unavoidable corollary is that the county possesses no authority in law to grant an easement in the road’s subsurface owned by an individual for the exclusive private use of a non-owner.

The court specifically found that the pipelines are for the exclusive use and benefit of the Kurklins. There is no challenge to this finding, and it is conclusive on appeal. Thus, any use of the subsurface that is not within the scope of the public interest is an infringement on Davis’ rights for which he may maintain an action to compel the removal of the unauthorized installation, Miguez v. Blake, 37 S.W.2d 234, 235 (Tex.Civ.App.—San Antonio 1931, writ dism’d), and an action to secure injunctive relief. Clutter v. Davis, 25 Tex.Civ.App. 532, 62 S.W. 1107, 1108 (1901, writ ref’d); China-Nome Gas Company, Inc. v. Riddle, 541 S.W.2d 905, 908 (Tex.Civ.App.—Waco 1976, writ ref d n. r. e.).

Conceding that the irrigation line is used solely to provide water for the Kurklins’ land, Hale County nevertheless complains because the court refused to find that the public derived benefits from the easement. The premise is that the public interest is served by the saving of $1,000 to $1,200 worth of gas per month, deriving more tax from land with good water, and the showing that it is good for the economy of the county to have water on the land. No authority cited validates the premise.

While the circumstances of each case determine whether a public interest exists, the particular facts of this cause warrant the trial court’s refusal to find that the public benefited from the easement. In the main, this is a private dispute stemming from the county’s grant of an easement on one’s land for the exclusive use and benefit of another. The easement is used to transport the same amount of water that was carried via the prior easement, and there is an absence of evidence that either more taxes are produced as a result of, or that the county’s economy benefited from, this easement; instead, the evidence is that the Kurklins individually save $1,000 to $1,200 monthly in operating costs. The effect is that the Kurklins’ private advantage does not serve a public purpose so as to justify an infringement on Davis’ rights.

The Kurklins also contend that the court erred in granting the mandatory injunction because Davis had an adequate remedy at law, he failed to show irreparable harm, and the balancing of the equities preponderates in their favor. None of these equitable principles vitiates the injunction.

The contention presupposes that the Kurklins have, absent Davis’ negation of the equitable principles, a right to maintain the easement. To the contrary, Davis as the fee owner has, and the Kurklins as strangers do not have, the right to the undisturbed possession and use of the subsurface. The injunction protects Davis’ rights and does not enjoin the Kurklins from doing anything they have a lawful right to do. Long established is that the right of one to be left in the undisturbed possession of his property may be protected by injunction. See, e. g., Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994, 995 (1897). This right is enforced by Tex.Rev. Civ.Stat. Ann. art. 4642, § 1 (1952), which provides that an injunction may be granted where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him. Because the right to injunctive relief is authorized by statute, the statute controls, Texas Farm Bureau Cotton Ass’n v. Stovall, 113 Tex. 273, 253 S.W. 1101, 1108 (1923), and the equitable principles raised by the Kurklins have no application here. Biggs v. Red Bluff Water Power Control Dist., 131 S.W.2d 274, 276 (Tex.Civ.App.—El Paso 1939, writ ref’d). Moreover, it is elementary that a court, once having decided the merits of a cause of action, may issue a writ of injunction necessary to make its judgment effective. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 975 (1931).

None of the points of error presents reversible error in the judgment rendered. The points are overruled.

The judgment of the trial court is affirmed.


author: ROBERTSON, Justice.

text:
    Margaret A. POWELL, Appellant, v. Grace Wilthelma POWELL, Appellee.
    No. 19687.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 19, 1978.

      Joseph A. Devany, Dallas, for appellant.
    J. Kyle, DuVall, Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for appel-lee.
   ROBERTSON, Justice.

Appellee has filed a motion to dismiss this appeal for want of jurisdiction in that the order sought to be appealed from — an order granting a motion for new trial — is interlocutory and, therefore, not appealable.

On October 22,1974, Joseph William Powell obtained a default judgment of divorce from his wife, Grace, by service of process by publication. In January of 1975, Powell married appellant, Margaret Powell. On July 1, 1976, Powell died. Subsequently, on October 1, 1976, appellee, Grace Powell, timely filed her sworn motion for new trial pursuant to Tex.R.Civ.P. 329, alleging that property rights were involved and that the divorce was procured by fraud on her and the court. Margaret A. Powell was cited as an adverse party and filed a motion to deny Grace Powell’s motion for new trial. On April 17, 1978, the trial judge granted appellee’s motion for new trial and set aside the divorce decree entered on October 22, 1974. It is from this order granting a new trial that appellant now appeals. We hold that this order is interlocutory in nature and, therefore, not appealable. Trujillo v. Piarote, 122 Tex. 173, 53 S.W.2d 466 (1932); Brown v. American Finance Co., 432 S.W.2d 564 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.); Brown v. Breneman, 385 S.W.2d 461 (Tex.Civ.App.—Dallas 1964, no writ); Lovenstein v. Lovenstein, 35 S.W.2d 271 (Tex.Civ.App.—Dallas 1931, writ dism’d); Robinson v. Robinson, 164 S.W.2d 35 (Tex.Civ.App.—San Antonio 1942, no writ); Tindall v. Rhodes, 493 S.W.2d 733 (Tex.1973).

Appellant further contends that we do in effect have a final judgment since Powell has died and, therefore, there could never be a new trial. We disagree. In Rimbow v. Rimbow, 191 S.W.2d 89 (Tex.Civ.App.—Galveston 1945, writ ref’d) cert. denied, 329 U.S. 718, 67 S.Ct. 51, 91 L.Ed. 623 (1946), the long standing rule in Texas is succinctly stated by Justice Graves:

Appellants’ reiterated contention upon this feature is . “the court had no authority to retry a divorce suit after the death of the plaintiff under Rule 329, Texas Rules of Civil Procedure.” The quoted statement could be conceded to be correct, without altering the holding that the court in this instance and under the “Motion for New Trial,” as described, did have the authority upon its unchallenged findings on the facts that the divorce had been procured by fraud, even upon the court itself, to declare that it was void; and there being property rights at issue, as well as the marital status of the women involved, to further determine the re-suiting effects upon them and the property. Id. at 91.

The trial court has the authority to grant a new trial and to declare the original decree void.

Appellee’s motion to dismiss is granted.


author: J. CURTISS BROWN, Chief Justice.

text:
    Sam CRUSE, Appellant, v. Ruth CRUSE, Appellee.
    No. 1843.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1978.
    Rehearing Denied Oct. 11, 1978.

      W. B. Irwin, Jr., Galena Park, for appellant.
    Roy W. Moore, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment partitioning military retirement benefits that had not been divided during the parties’ prior divorce proceedings.

Sam Cruse (appellant) and Ruth Cruse (appellee) were divorced on February 8, 1971, after nearly twenty-five years of marriage. The division of property provision of the divorce judgment granted appellee 37½% of appellant’s military retirement income which had “vested and accrued”, if any, at the time of the divorce. The remaining 62½% of the military retirement income so “vested and accrued,” if any, at the time of the divorce, was awarded to the appellant. Both parties to this appeal concede that the appellant’s military retirement benefits did not “vest” until September 17, 1971, more than seven months after the rendition of the judgment of divorce.

Appellee filed a contempt motion in December, 1971, in which she alleged that appellant failed to give her 37!⅛% of the military retirement benefits that he had received since October, 1971, as he was required to do by the divorce judgment. The trial court dismissed the contempt motion in February, 1972. Appellee thereafter filed a motion for judgment nunc pro tunc. That motion was denied in May, 1972.

The appellee instituted this lawsuit on April 18,1977, more than six years after the rendition of the judgment of divorce. She alleged, in her second amended petition, that no partition was made of the appellant’s military retirement benefits in the judgment of divorce, that she and appellant were and are tenants in common with respect to the retirement benefits, and that she is therefore entitled to an accounting and partition of all benefits paid to the appellant since October, 1971. The trial court granted judgment for the appellee and awarded her $7,742.25, plus postjudgment interest thereon, and her share of the benefits which had been paid appellant in the two years prior to the institution of the lawsuit. The court ruled that appellee’s claim for retirement benefits paid more than two years before the institution of this suit was barred by the statute of limitations. See Tex.Rev.Civ.Stat.Ann. art. 5526 (1958). The court also designated appellant as constructive trustee of the retirement benefits to be paid in the future and directed him to deliver 37½% of all future benefit payments to appellee as those benefits are received. In his appeal from the trial court’s judgment, appellant has assigned four points of error. Appellee has assigned three cross points.

Appellant contends, in his first three points, that the trial court erred in failing to hold that the appellee’s suit was a collateral attack on the final judgment of divorce and on the decisions on the motions for contempt and for judgment nunc pro tunc. Appellant asserts that the trial court erred, therefore, in failing to hold that ap-pellee’s suit was barred by res judicata and collateral estoppel. The doctrine of res ju-dicata bars the relitigation of all issues con nected with a cause of action or defense that were actually tried in a former suit between the same parties or which, with diligence, should have been tried in that former suit. Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.Sup.1971). The doctrine of collateral estoppel bars the relitigation, in a subsequent suit between the same parties upon a different cause of action, of fact issues actually litigated and essential to a prior judgment. Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex.Sup.1971).

In order to determine whether ap-pellee’s suit is an impermissible attack on the prior judgment of divorce, we must consider the nature of the claim asserted in that suit. Appellant’s military retirement benefits constituted

a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate of the parties under Section 3.63 of the Family Code.

Cearley v. Cearley, 544 S.W.2d 661, 666 (Tex.Sup.1976). The failure of the court that rendered the judgment of divorce to consider and divide that contingent interest did not amount to a holding that the appel-lee was not entitled to share in the appellant’s retirement benefits. Rather, as in any case where the judgment of divorce fails to divide certain community property, the husband and the wife became tenants in common thereof. Busby v. Busby, 457 S.W.2d 551 (Tex.Sup.1970). Appellee’s suit for a partition of the undivided community property, (the military retirement benefits) therefore, is not an impermissible collateral attack on the judgment of divorce that is barred by res judicata or collateral estoppel. Id.

Nor does appellee’s suit constitute a collateral attack of the decisions on the motions for contempt and for judgment nunc pro tunc. The only issue before the court in the contempt hearing was whether appellant had violated the terms of the court’s order, see Ex parte Werblud, 536 S.W.2d 542 (Tex.Sup.1976), but the judgment of divorce did not order the appellant to pay to the appellee any portion of the parties’ contingent interest in the military retirement benefits. The sole issue before the court on the motion for judgment nunc pro tunc was whether the judgment of divorce contained a clerical error. See Finlay v. Jones, 435 S.W.2d 136 (Tex.Sup.1968). Whether appellee was entitled to a partition of the contingent interest in the military retirement benefits, therefore, was not litigated and could not have been litigated during the hearing on either motion. Hence, appellee’s claim is not barred by res judicata or collateral estoppel.

Appellant asserts, in his fourth point, that the trial court erred in failing to sustain his plea of limitations. He claims, in this regard, that the appellee’s cause of action for the partition of the military retirement benefits arose no later than December, 1971, when she filed the contempt motion because her filing of that motion shows that she then had notice that he was repudiating her rights as a cotenant. See Irwin v. Basham, 507 S.W.2d 621 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). More than four years had passed between that time and the filing of the present lawsuit; therefore he asserts that the appellee’s claim is barred by article 5529 of Texas Revised Civil Statutes, which provides:

Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.

Tex.Rev.Civ.Stat.Ann. art. 5529 (1958).

We agree with appellant that the statute of limitations begins to run against a cotenant only when another cotenant gives notice of a repudiation of the cotenan-cy. Wingo v. Rudder, 103 Tex. 150, 124 S.W. 899 (1910); and, Irwin v. Basham, 507 S.W.2d 621 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). However, we reject appellant’s contention that appellee received notice of repudiation when she filed the contempt motion in December, 1971. The record reveals that through the contempt and nunc pro tunc actions, appellee established only that she was not entitled to retirement benefits under the prior divorce decree. We distinguish the present case from the situation recently confronted in Shaw v. Corcoran, 570 S.W.2d 96 (Tex.Civ.App.—Austin 1978, not yet reported). In that case parties divorced in 1967 and the divorce judgment made no mention of the husband’s contingent military retirement benefits. In November, 1970, when the benefits vested and became payable, the husband refused to acknowledge the wife’s interest and the wife brought suit for partition. That suit was dismissed for want of prosecution in 1975. The Austin Court held that the cotenancy was repudiated by the husband in 1970, and that the statute of limitations began to run at that time. In Shaw the husband’s refusal to acknowledge the wife’s interest and the prior partition action were ample evidence reflecting a repudiation of the cotenancy. However, as noted above, the prior actions in the present case involved “vested” benefits, and were not concerned with contingent retirement benefits.

Nor can it be stated that the statute of limitations began to run on December 15, 1976, the date our Supreme Court announced its decision in Cearley. On that date, appellee may have first learned of her rights in unmatured benefits; but no controversy existed over the benefits until she filed this suit. Dessommes v. Dessommes, 461 S.W.2d 525, 527 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.). There being no evidence of a repudiation of the cotenancy in the record, we conclude that the statute of limitations does not bar any of the appel-lee’s recovery in this case. Appellant’s fourth point of error is therefore overruled.

Appellee contends, in her first cross point, that the trial court erred in holding that she was barred by limitations from recovering any portion of military retirement benefit payment made more than two years prior to the filing of this action. We sustain this cross point for reasons already stated.

In her second and third cross points, appellee argues that the trial court improperly calculated the amount of retirement benefits to which she was entitled. Appellant served in the United States Navy for 810 months. The parties were married during 255 of those 810 months. Appellee was therefore entitled to of 255/310 (41%) of those benefits, rather than the 37½% of the benefits that she was awarded by the trial court. See Taggart v. Taggart, 552 S.W.2d 422 (Tex.Sup.1977). We therefore sustain her second and third cross points.

Appellee’s second and third cross points having been sustained, the judgment of the trial court is reformed and we award appel-lee $19,320.02 as her share of the reitrement benefits received by appellant up until the time of trial ($47,122.00), and we further order that appellant shall, upon receipt of all military retirement benefits in the future, immediately deliver 41% of said retirement benefits, by United States mail, to appellee at her then current place of residence. As so reformed, the judgment is affirmed.

Reformed and affirmed.

      . The court that granted the divorce used this phrase prior to the decision in Cearley v. Cearley, 544 S.W.2d 661 (Tex.Sup.1976), wherein our supreme court distinguished the terms “accrued,” “matured,” and “vested.” Id. at 664 n.4.

      . The trial court found that appellee had received $47,122.00 in benefits at the time of trial.

      . This “failure” was entirely understandable, since trial courts were first authoritatively advised that unmatured retirement benefits were subject to division in 1976. See Taggart v. Taggart, 552 S.W.2d 422, 424 n.1 (Tex.Sup.1977).


author: NYE, Chief Justice.

text:
    Francisco LONGORIA and Consuelo Longoria, Appellants, v. ATLANTIC GULF ENTERPRISES, INC., et al., Appellees.
    No. 1314.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 21, 1978.
    Rehearing Denied Oct. 12, 1978.

      H. Clyde Farrell, Harlingen, for appellants.
    Lee Arnett, Brownsville, for appellees.
   OPINION

NYE, Chief Justice.

This is a suit arising out of a home improvement transaction in which the plaintiffs, Francisco and Consuelo Longoria, alleged violations of the Texas Deceptive Trade Practices-Consumer Protection Act, the Texas Retail Installment Sales Act, and the Federal Truth-In-Lending Act against defendants Atlantic Gulf Enterprises, Inc., three of Atlantic Gulf’s officers and directors, Franklin T. Graham, Jr., Jack C. Frost, and Joseph Howard Graham and Brownsville Savings and Loan Association. After a jury verdict, the trial court awarded the Longorias statutory damages against Atlantic Gulf for violations of the Texas Retail Installment Sales Act and the Federal Truth-In-Lending Act. The court denied any recovery under the Texas Deceptive Trade Practices-Consumer Protection Act. Plaintiffs have perfected their appeal to this Court.

Atlantic Gulf Enterprises, Inc. (Atlantic Gulf) is a Texas corporation which was engaged in the business of selling aluminum siding, making or contracting to make home improvements and in arranging credit financing for such improvements. Plaintiffs’ trial petition alleged that Chuck Williams, an employee and agent of Atlantic Gulf, contacted them in October, 1974 concerning improvements that the plaintiffs might wish to make on their home located in Har-lingen, Texas. The plaintiffs alleged that Williams filled out a preliminary application and promised to return if he could arrange credit for them with the bank. Thereafter, Williams returned to the plaintiffs’ home and allegedly informed them that Atlantic Gulf had arranged credit to finance the home improvements through Brownsville Savings and Loan Association. The plaintiffs further alleged that in exchange for Longorias’ promise to pay certain monthly installments, Charles Williams as agent for Atlantic Gulf agreed to move plaintiffs’ home to a different location and construct various enumerated improvements. Plaintiffs alleged they signed several documents including: 1) a “Proposal” whereby they agreed to pay the principal amount of $9,000 in monthly installments plus interest pursuant to an agreement with Atlantic Gulf; 2) an agreement with Williams whereby they were to pay Williams an additional principal amount of $1,900 in monthly installments plus interest for additional work to be performed under the agreement with them and Atlantic Gulf; 3) a credit application; 4) a disclosure statement; and 5) a notice of a right for recission.

The plaintiffs stated that Brownsville Savings approved the extension of credit to them before they entered into the contract with Atlantic Gulf, and that all of the terms of the contract were ultimately known to the defendants Brownsville Savings and Atlantic Gulf at the time they entered into the contract.

Plaintiffs further alleged that the work performed by Atlantic Gulf failed to conform to the contract in 27 enumerated respects and, as a result, that their home was dismantled and rendered uninhabitable. The plaintiffs alleged that Atlantic Gulf failed to honor certain warranties concerning the quality of work it agreed to perform which violated the Texas Deceptive Trade Practices-Consumer Protection Act. They sought to hold the named officers and directors of Atlantic Gulf individually liable on the basis that Atlantic Gulf’s right to do business as a corporation and its charter had been forfeited for failure to satisfy the Texas Franchise Tax requirements.

Atlantic Gulf answered and specifically denied that Williams was an agent of Atlantic Gulf who had authority to execute contracts on behalf of Atlantic Gulf. The answer further alleged, in substance, that Charles Williams was acting for himself in negotiating the home improvements project with the plaintiffs and in implementing these improvements. Atlantic Gulf stated that its only connection with the plaintiffs’ project was to furnish steel siding to Charles Williams for his use in the project and to assist Williams in arranging for the financing.

In response to special issues, the jury: 1) found that at the time the plaintiffs signed the “Proposal”, Charles Williams was authorized by Atlantic Gulf to act for Atlantic Gulf in the signing of the proposal; 2) failed to find that Atlantic Gulf caused “misunderstanding on the part of the plaintiffs as to the connection of Charles Williams to Atlantic Gulf by causing the plaintiffs reasonably to believe that Williams was acting for Atlantic Gulf;” 3) found that Charles Williams incorrectly represented to the plaintiffs that goods or services to be sold to them were of a particular quality when they were of inferior quality; 4) found that the plaintiffs were adversely affected by the incorrect misrepresentations referred to in the previous special issue; 5) found that the unworkmanlike defects in the construction on the plaintiffs’ home could not be repaired without undue expense; 6) failed to find that Graham consented to and approved the contract after learning of the contract; and 7) found reasonable attorney’s fees.

Thereafter, judgment was entered awarding the Longorias statutory damages against Atlantic Gulf for violations of the Federal Truth-In-Lending Act and the Texas Retail Installment Sales Act plus reasonable attorney’s fees. The trial court denied any recovery, however, under the Texas Consumer Protection Act, and refused to hold Graham personally liable. In eight points of error on appeal, the plaintiffs complain of these latter two holdings, and of the amount of damages awarded them for the violation of the Federal Truth-In-Lending Act.

We first consider appellants’ complaint concerning the amount of damages the trial court awarded under their Federal Truth-In-Lending Act claim. (See 15 U.S.C.A. § 1601 et seq.; 12 C.F.R. 226.1 et seq.). In point of error seven, the plaintiffs complain that the district court erred by failing to award them $2,000 instead of $1,000 under the Federal Truth-In-Lending Act. None of the parties challenge the trial court’s determination that violations of the Federal Truth-In-Lending Act occurred. The sole question before us is whether or not the trial court properly entered judgment awarding the Longorias $1,000 damages for these violations.

Once a violation of the Truth-In-Lending Act or Regulation Z is established, 15 U.S.C.A. § 1640(a) provides a civil remedy. That section states:

“Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this chapter . . . with respect to any person is liable to such person in an amount equal to the sum of— . . . (2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, . . . except that liability under this subpara-graph shall not be less than $100 nor greater than $1,000; . . . ” (Emphasis supplied).

In this case, the “finance charge in connection with the transaction” was greater than $1,000. Under these sections quoted above, the defendants were therefore liable for the statutory maximum because twice the amount of the finance charge is greater than $1,000.

The plaintiffs, Francisco Longoria and his wife, Consuelo Longoria, each signed all of the loan documents in question. The plaintiffs, relying on Davis v. United Companies Mortgage and Investment of Gretna, Inc., 551 F.2d 971 (5th Cir. 1977), argue that because their obligation is joint and several, each of them should be awarded the statutory penalty as if each of them had signed the contract alone.

Here, the plaintiffs filed suit against both Brownsville Savings and Atlantic Gulf seeking recovery of statutory damages in the sum of $1,000 from each defendant for alleged violations of the Truth-In-Lending Act. Atlantic Gulf and the individual defendants filed a cross action against Brownsville Savings seeking indemnity in the event damages were awarded on the plaintiff’s Federal Truth-In-Lending Act and Texas Retail Installment Sales Act claims. Prior to trial, the plaintiffs settled their claim with Brownsville Savings. Thereafter, the plaintiffs did not amend their pleadings to request $2,000 from Atlantic Gulf.

After the jury’s answers to special issues had been received and entered, the trial court entered judgment awarding the plaintiffs $1,000 against Atlantic Gulf for violations of the Truth-In-Lending Act. This award is the amount the plaintiffs prayed for in their trial petition. The plaintiffs filed a motion for judgment non obstante veredicto requesting the Court to enter judgment awarding them, among other things, $1,000 for violations of the Federal Truth-In-Lending Act. The plaintiffs filed a motion for new trial which complained for the first time that the trial court erred in awarding them only $1,000 rather than $2,000 under the Truth-In-Lending Act.

The judgment of the trial court must conform to the pleadings, the evidence and the verdict, if any. Rule 301, Texas Rules of Civil Procedure. Starr v. Ferguson, 166 S.W.2d 130 (Tex.Sup.1942). A judgment for damages in excess of the amount pleaded is erroneous even though a larger amount might be warranted by the evidence. Kleiner v. Eubank, 358 S.W.2d 902 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.); Grace v. Starrett, 411 S.W.2d 774 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.). Here the trial court entered judgment in favor of the Longorias in accordance with the amount requested in their original petition. Appellants’ point of error seven is overruled. Rule 434, T.R.C.P.

In points of error five and six, the Longorias complain that the trial court erred in refusing to award treble damages, reasonable attorney’s fees and court costs under the Texas Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm.Code, § 17.41, et seq. (Supp.1978). Section 17.50(a) provides, in relevant part, as follows:

“A consumer may maintain an action if he has been adversely affected by any of the following:
(2) a failure by any person to comply with an expressed or implied warranty;”

A consumer who prevails in a suit filed under Section 17.50 may obtain, in addition to other specified relief, three times the amount of actual damages plus court costs and reasonable attorney’s fees. Texas Business & Commerce Code, § 17.50(b)(1) (Supp.1978). The award of treble damages under this subsection is mandatory in the event the consumer proves all of the elements required to recover actual monetary damages. Woods v. Littleton, 554 S.W.2d 662, 669 (Tex.Sup.1977).

Exhibit 10-A is a form entitled “Proposal” printed on Atlantic Gulf letterhead, which was signed by the plaintiffs and Williams and introduced into evidence. The “Proposal” provided in part as follows:

“(1) Contractor to move house & remodel according to plans agreed by customer.
(2) Plans submitted to be constructed according to local & state codes & regulations.
(3) Customer to receive (30) thirty year written guarantee on steel siding.”

Printed in the lower left-hand corner of the “Proposal” form was the following “warranty:” “All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. . . . ” The parties stipulated that: 1) the improvements to the Longoria home were not constructed in a workmanlike manner according to standard practices; 2) the reasonable cash market value of the Longorias’ house and land, if the house had been remodeled in a workmanlike manner, would be $10,000; and 3) the reasonable cash market value of the Longorias’ house and land in its present condition is $2,070.

Appellants’ general arguments in support of these points of error assume that appellants proved through the above stipulations, the undisputed evidence, and jury findings all of the necessary elements required to recover the mandatory treble damages, reasonable attorney’s fees and court costs because Atlantic Gulf violated Section 17.50(a) by failing to comply with the express warranty contained in the “Proposal.” The record in this case raises several unresolved issues concerning the scope of Williams’ authority to act on behalf of Atlantic Gulf. The jury found that Williams was authorized to sign the “Proposal on behalf of Atlantic Gulf.” No other jury issues were requested or submitted concerning Williams’ authority to act thereafter on behalf of Atlantic Gulf. Williams was not a named defendant, and the evidence concerning the scope of his authority to act on behalf of Atlantic Gulf is conflicting.

It is a general rule that an agent’s authority is presumed to be coextensive with the business entrusted to his care. He is limited in his authority to such contracts and acts as are incident to the management of the particular business with which he is entrusted. Boyd v. Leasing Associates, Inc., 516 S.W.2d 485, 491 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.); Jarbe Oil Co. v. Birdwell & Son Drilling Co., 335 S.W.2d 394 (Tex.Civ.App.—Eastland 1960, writ ref’d n. r. e.). On the other hand, a principal will not be charged with liability to a third person for the acts of the agent whenever the agent’s acts are in excess of his authority, except where such acts are subsequently ratified by the principal or when the principal is estopped to deny his liability therefor. Texas Midland R. R. v. Monroe, 216 S.W. 388 (Tex.Sup.1919); Traylor v. Gray, 547 S.W.2d 644 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Fritz v. Skiles, 107 S.W.2d 768 (Tex.Civ.App.—Eastland 1937, no writ); 2 Tex. Jur.2d § 173 (Agency) (1959).

Apparent authority is based on the doctrine of estoppel. One seeking to charge a principal through apparent authority of an agent must prove such conduct on the part of the principal as would lead a reasonably prudent person to suppose that the agent has the authority he purports to exercise. Rourke v. Garza, 530 S.W.2d 794, 802 (Tex.Sup.1976); Douglass v. Panama, Inc., 504 S.W.2d 776, 778-79 (Tex.Sup.1974); Chastain v. Cooper & Reed, 257 S.W.2d 422 (Tex.Sup.1953). A person who deals with an agent generally has the burden of proving the authority of such agent. Buchoz v. Klein, 184 S.W.2d 271 (Tex.Sup.1944); Hanson Southwest Corp. v. Dal-Mac Const. Co., 554 S.W.2d 712, 719 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.).

The record before us shows that Williams was a self-employed independent salesman who sold “remodeling of residences” through various companies, including Atlantic Gulf. These companies arranged for credit, provided some of the remodeling materials and then sometimes completed the project or arranged to have the project completed through subcontractors.

In pre-trial discovery, Atlantic Gulf made conflicting admissions concerning the authority of Williams to act on behalf of Atlantic Gulf in signing the original instrument entitled “Proposal.” The jury found Williams was authorized to sign the “Proposal.” During pre-trial discovery, Atlantic Gulf first admitted, in effect, that it was obligated under the “Proposal” to provide materials and services to the extent reflected in the terms of that document. It later amended its answer to state that it had agreed only to supply steel to Williams for his work on the project. Atlantic Gulf’s position at trial was that Williams was not authorized to act in its behalf in performing the actual remodeling work to the plaintiffs’ home. The record is devoid of any evidence that Atlantic Gulf approved or participated in any way in the remodeling work on the plaintiffs’ home. The undisputed evidence is that Williams assumed the responsibility for commencing and completing the remodeling job without the pri- or knowledge or approval of Atlantic Gulf.

Williams testified that he originally did not intend to take charge of the actual construction matters on the plaintiffs’ transaction. Apparently, the plaintiffs received word directly from Brownsville Savings, and not Atlantic Gulf, that their loan had been approved. Thereafter, the plaintiffs contacted Atlantic Gulf to inquire when the remodeling work would commence. After receiving no satisfaction from Atlantic Gulf, the plaintiffs contacted Williams. Williams testified that, after he was contacted by the plaintiffs, he decided that he “might as well get somebody out there and do the job.” Thereafter, Williams personally obtained a building permit which was in the name of Atlantic Gulf although Williams testified he did not seek prior approval from Atlantic Gulf. The record indicates that Williams personally supervised and hired the contractors who started to remodel the plaintiffs’ home.

The contract (“Proposal”) upon which the plaintiffs seek to hold Atlantic Gulf liable does not embody all of the essential terms of the alleged remodeling contract pled by the plaintiffs. The “Proposal” provided only that the contractor was to move the house and remodel according to plans agreed to by the customer and the plans to be submitted were to be constructed according to local and state building codes. The undisputed evidence showed that neither Williams nor Atlantic Gulf arranged for or supervised the moving of the plaintiffs’ home. The plaintiffs, themselves, hired someone to do this work for them. Williams only advanced to the plaintiffs money to cover the moving costs. Although detailed plans and specifications were never reduced to writing, Williams did draw some rough sketches reflecting the remodeling work that was to be done. The record indicates that after the construction work started, the plaintiffs periodically changed their minds concerning the work they wished to have done and so instructed the contractors without first notifying Williams.

The plaintiffs failed to request proper special issues concerning Williams’ authority to act on behalf of Atlantic Gulf in constructing the improvements to plaintiffs’ house. Williams’ authority as an agent was not established by conclusive evidence. The jury’s finding that Williams was authorized to sign the “Proposal” on behalf of Atlantic Gulf alone is not sufficient to hold Atlantic Gulf liable for all of the actual construction of the improvements that Williams made or caused to be made which were beyond the scope of his actual authority. Appellants’ points of error five and six are overruled.

In points of error one through four, the plaintiffs complain of the trial court’s failure to enter judgment imposing personal liability on Graham. Their main complaints concern the applicability of Tex. Tax.-Gen.Ann. art. 12.14 (1969), which provides for the forfeiture of a corporation’s right to do business for its failure to pay franchise taxes. This article further provides that such forfeiture has the following consequence, among others:

“. . . Each director and officer of any corporation whose right to do business within this State shall be so forfeited shall, as to any and all debts of such corporation, which shall include all franchise taxes and penalties thereon which shall become due and payable subsequent to the date of such forfeiture, and which may be created or incurred, with his knowledge, approval and consent, within this State, after such forfeiture by any such directors or officers, and before the revival of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporation were partners.” (Emphasis added).

Under the terms of this statute, the personal liability of officers and directors for debts incurred after the corporation no longer has the right to do business is limited to those debts of which they have knowledge and which they have consented to and approved in the regular course of the business of the corporation. First National Bank of Boston v. Silberstein, 398 S.W.2d 914, 916 (Tex.Sup.1966).

Plaintiffs seek to hold appellee Graham personally liable for their claims against Atlantic Gulf on the basis of this statute. It was for this reason that the plaintiffs submitted special issue number six (above quoted) which inquired whether Graham consented to and approved the contract after learning of the contract. The jury returned a negative answer to this special issue. Points of error one and two challenge the jury’s negative finding on legal and factual sufficiency grounds.

Graham testified, in effect, that he had no knowledge of the plaintiffs’ transaction until he was in the office of plaintiffs’ attorney. He could not recall whether this meeting was prior to or subsequent to the date the plaintiffs had filed their suit. Graham further testified that he did not talk with Williams concerning the plaintiffs’ transaction until after the suit was filed. Graham did not remember that he ever talked with Brownsville Savings regarding the plaintiffs’ loan as he had in the past in other loan transactions.

We have examined the record and find that this evidence does not conclusively establish the opposite of the jury’s answer to special issue six above. There is probative evidence to support the answer and such answer is not so against the great weight and preponderance of the evidence as to be clearly wrong. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In re King’s Estate, 244 S.W.2d 660 (Tex.Sup.1951).

There is another reason why plaintiffs’ points of error one and two must be overruled. We have already determined that the trial court properly denied recovery against Atlantic Gulf under the Texas Deceptive Trade Practices-Consumer Protection Act. Accordingly, regardless of the jury’s answer to this special issue, there would be no basis upon which to impose personal liability against Graham on this same claim.

In point of error four, the plaintiffs contend that the trial court erred in refusing to hold Graham personally liable because Graham “was the sole proprietor of the non-corporate business known as Atlantic Gulf Enterprises, Inc. at the time the causes of action asserted by Appellants arose.” In support of this point of error, the plaintiffs argue that at the time the “Proposal” was signed, Atlantic Gulf’s corporate charter had been forfeited pursuant to Tex.Tax.-Gen.Ann. art. 12.17 (1969), and that Graham, who at that time acted as president of Atlantic Gulf, also owned 100% of its stock. Plaintiffs argue that upon such forfeiture, the corporate existence ends and title to the corporate assets vested in the sole shareholder (Graham) and he became personally liable as a sole proprietor for all corporate obligations. We do not agree.

The cases upon which the plaintiffs rely were decided prior to the 1965 amendment to article 12.17 which, for the first time, provided a procedure whereby a corporation whose charter had been forfeited could make application for its reinstatement. Atlantic Gulf did just this. Atlantic Gulf’s corporate charter was reinstated in 1976 pursuant to the provisions of article 12.17. Appellant cannot hold Graham personally liable on the theory that the corporation dissolved when its charter was forfeited. Cf. McGown v. Kittel, 480 S.W.2d 47, 50 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.). Article 12.17 provides, in substance, that the reinstatement provisions will not affect the liability of the officers and directors of the corporation for debts, obligations or liabilities incurred between the date of the forfeiture of the right to do business and the date of the reinstatement. This article does not expand the personal liability requirements contained in article 12.14, previously mentioned. Plaintiffs’ point of error four is overruled.

In point of error eight, the appellants contend that the district court erred in denying their motion to equalize peremptory strikes. The plaintiffs argue that the trial court erred in failing to grant them a total of 12 peremptory challenges to the veniremen on the jury panel. In support of this point of error, they argue that Brownsville Savings and Atlantic Gulf and the individual defendants were not adversary parties on any fact issue that would be submitted to the jury.

After the Longorias dismissed their claim against Brownsville Savings, Atlantic Gulf’s and the individual defendants’ cross action against Brownsville Savings for indemnity remained before the court. Before the trial commenced, the plaintiffs submitted an oral motion requesting the trial court to give them an additional six peremptory strikes because the trial court had granted six strikes to be allocated among Atlantic Gulf and the three individual defendants and six strikes to Brownsville Savings. This motion was denied by the trial court.

Rule 233, Texas Rules of Civil Procedure, provides that each party to a civil suit tried in a district court shall be entitled to six peremptory challenges. The term “each party,” as used in the Rule, does not mean the same thing as the word “person,” but means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. Retail Credit Co. v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.—Houston 1958, writ ref’d). In addition to Rule 233, Article 2151a, Tex.Rev. Civ.Stat.Ann. (Supp.1978) provides in part as follows:

“After proper alignment of parties, it shall be the duty of the court to equalize, the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”

The harmless error rule applies where a party is denied the number of peremptory challenges to which he is entitled. Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex.Sup.1965). Rules 434, 503, Texas Rules of Civil Procedure. The burden is on the plaintiffs to show that the allowance of a total of twelve peremptory challenges to the defendants and the allowance of only six such challenges to them resulted in a trial that was materially unfair to them. The plaintiffs have failed to show that they used all of their peremptory challenges, or that they were forced to accept undesirable veniremen on the jury panel. There is nothing in the record to indicate that any of the 12 jurors who made up the jury were disqualified; that any of them were prejudiced against the plaintiffs; or that any of the jurors were unfair in reaching the verdict that was returned. We, therefore, hold that the plaintiffs failed to show that the trial court’s error, if any, caused or probably caused the rendition of an improper judgment. Perkins v. Freeman, 518 S.W.2d 532 (Tex.Sup.1974); Tamburello v. Welch, 392 S.W.2d 114 (Tex.Sup.1965); Texas Employers’ Insurance Association v. McCaslin, 317 S.W.2d 916 (Tex.Sup.1958); King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). Plaintiffs’ point of error number eight is overruled.

The judgment of the trial court is AFFIRMED.

      . The Consumer Protection Act, originally enacted on May 21, 1973, was amended effective September 1, 1975, and effective May 23, 1977. Plaintiffs’ petition was filed and the alleged deceptive trade practices occurred prior to the effective date of the 1975 amendment. The references herein to the Consumer Protection Act pertain to the statute as enacted in 1973 unless otherwise indicated.

      . Article 12.14 was amended after the trial of this case. See Tex.Tax.-Gen.Ann. art. 12.14 (Supp.1978).


author: HUGHES, Justice.

text:
    Donald R. THOMPSON et ux., Appellants, v. FIRST AUSTIN COMPANY, Appellee.
    No. 18082.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 21, 1978.
    Rehearing Denied Oct. 19, 1978.

      Haralson & Parks and Larry Parks, Austin, for appellants.
    Jones & Norris, Inc., and Dewey R. Hicks, Jr., Austin, for appellee.
   OPINION

HUGHES, Justice.

Donald and Mary Thompson, a married couple, have appealed the take-nothing summary judgment granted First Austin Company by trial court. Thompsons had sued for damages under the “Deceptive Trade Practices and Consumer Protection Act,” (D.T.P.A.) Tex.Bus. & Comm. Code Ann. § 17.41 through § 17.50.

We affirm.

Basically, Thompsons claimed that First Austin failed to comply with the terms of its April 2, 1976 letter to them promising not to foreclose a deed of trust lien against their home while they tried to sell such home and while they kept their payments up to not more than two payments behind. First Austin’s posting such property for foreclosure was an unfair practice under D.T.P.A. according to the Thompsons. As a result, they allege mental anguish, a reduced price in the sale of their house under threat of foreclosure, plus unnecessary expenses in selling such house.

Thompsons claim to be “consumers” under D.T.P.A., as the term is defined in Section 17.45(4), because they purchased “services”, as that term is defined in Section 17.45(2), when they borrowed money from First Austin to buy the house. Services detailed in Thompsons’ brief were: Receipt of credit for loan payments, application of proceeds of condemnation, payment of taxes and insurance through First Austin, an extension of time for payment of debt (§ 8 of deed of trust) and application of payment and posting of notices in case of foreclosure of deed of trust lien.

First Austin asserts that the Thompsons may not maintain a D.T.P.A. cause of action because, under their allegations, they are not consumers as defined by the Act. Thompsons, citing Woods v. Littleton, 554 S.W.2d 662 (Tex.1977), allege that they purchased services — “a note and deed of trust” just as Woods had purchased services — “a warranty” in the case above cited.

We hold that Thompsons did not purchase a service; “a note and deed of trust.” Rather it is the reverse: Thompsons purchased the use of money with the “note and deed of trust.” The provisions in the deed of trust are for the benefit of First Austin in securing repayment of its loan and the options provided therein are First Austin’s. Such provisions apply to Thompsons only in the sense that they provided for them to perform their duties in return for what they had already received in full — the money to pay for their house.

Thompsons urge the extension of payment time option under the deed of trust as a service to which they are entitled. The summary judgment proofs show that Thompsons did not offer, promise or pay any consideration to First Austin for agreement to extend time to perform any obligation of the note (affidavits undisputed). We hold that Thompsons’ asserted attempt to place themselves within the past due installment provisions of the note does not constitute a new consideration.

It is axiomatic that an agreement for extension of time for performance of a contract must be supported by a separate and distinct consideration. Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061 (1895). Agreement to pay what is already owed is no consideration to extend time for payment of note or installment. Austin Real-Estate & Abstract Co. v. Bahn, 87 Tex. 582, 30 S.W. 430 (1895). Consideration offered must be for an additional amount of interest — either a totally new interest payment or an agreement to forego the right to make a delinquent payment for a definite period so the creditor will earn a set amount of interest under the extension agreement. Kirby v. American State Bank, 18 S.W.2d 599 (Tex.Com.App.1929, opinion adopted). There was no definite extension time agreed between the Thompsons and First Austin.

Since we hold the Thompsons not to be consumers under the provisions of D.T.P.A., we overrule point of error number one A. In view of our “no consumer” ruling, we also overrule points of error one B, one C, two and three.

Judgment of the trial court is affirmed.


author: BISSETT, Justice.

text:
    The STATE of Texas, Appellant, v. Ferdinando TREVINO, Appellee.
    No. 1329.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 21, 1978.
    William B. Mobley, Jr., Dist. Atty., Kenneth G. Botary, Asst. Dist. Atty., Corpus Christi, for appellant.
    Juan P. Gonzalez, Huerta, Pena, Beck-man, Rodriguez & Alfaro, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment which denied forfeiture of a camera, which allegedly was used to conceal and transport cocaine, a controlled substance, in violation of law. Suit was filed by the State of Texas against Ferdinando Trevino on March 1, 1977. It was alleged that on or about August 17,1976, the defendant Ferdi-nando Trevino, the owner of a certain movie camera, used the camera as a container to conceal and transport the controlled substance in violation of Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 5.03(a)(2) and (3); and that the said defendant entered a plea of guilty to possession of a controlled substance. Plaintiff prayed that the camera be forfeited to the District Attorney of Nueces County, Texas as provided by Tex.Rev.Civ.Stat. Ann. art. 4476-15, § 5.08(a)(3). Ferdinando Trevino, whose whereabouts were unknown at all times pertinent to this appeal, was served by publication, and an attorney ad litem was appointed to represent him. A general denial was filed by the attorney ad litem on November 4, 1977.

Following a trial before the court, on-December 1, 1977, judgment was rendered on December 20, 1977 which denied forfeiture of the camera. Plaintiff has appealed.

The document denominated the “Statement of Facts”, and filed in this Court on February 9, 1978, does not contain any evidence of any nature or kind. It was certified by the court reporter as containing “a true and correct transcription of all the proceedings” which took place at the trial, and was agreed to by counsel for both parties and approved by the trial judge. It did not constitute a statement of facts as contemplated by Rule 377, T.R.C.P. It is nothing more than a transcription of conversation between the trial judge and counsel for the parties and of the statements by the judge as to what he intended to do concerning the controversy. Counsel for the par-tie represented in writing to this Court when the case was submitted that no evidence was presented to the trial court at the trial of this case. In that state of the record, the trial court properly rendered judgment which denied plaintiff a forfeiture of the camera in question.

In this appeal, it was plaintiff’s burden, in order to obtain a reversal of the trial court’s judgment, to bring to this Court a record which would require such a reversal. It did not meet that burden. Fundamental error is not presented by the record. Under the circumstances, we have no choice but to affirm the judgment of the trial court.

AFFIRMED.


text:
    Joe MARTINEZ, Jr., et ux., Appellants, v. Dellon F. BEASLEY, Appellee.
    No. 1389.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 21, 1978.

      John R. Haas, Corpus Christi, for appellants.
    Robert E. Haegelin, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

The sole issue presented by this appeal is whether the District Court of Nueces County, Texas, properly sustained the defendant Beasley’s plea to the jurisdiction of the suit filed by plaintiffs’ Martinez. We hold that it did not.

The plaintiffs Joe Martinez, Jr. and wife, Guadalupe Martinez, filed suit in the District Court of Nueces County, Texas, on June 9,1978, wherein they sought to cancel a trustee’s deed which conveyed real property to Beasley, the defendant, following a purported foreclosure of a deed of trust lien on the subject realty. The trial judge sustained the defendant’s plea to the jurisdiction and dismissed the suit. Plaintiffs have appealed.

Plaintiffs alleged: 1) they purchased a certain improved lot in Corpus Christi, Texas, from defendant on March 31, 1977; 2) they paid $6,000.00 “as a down payment” and executed “an agreement to pay defendant the sum of $2,000.00, plus interest, in monthly installments”; 3) the “agreement” was secured by a deed of trust on the subject property, which was a second lien on said property; 4) the deed of trust lien was foreclosed on December 6, 1977, and the subject property was purchased by defendant at the trustee’s sale for $3,000.00; 5) the foreclosure sale was void because “the trustee did not have authority to sell such property for the reason that plaintiffs were not given written notice”, as required by Tex.Rev.Civ.Stat.Ann., art. 3810; or, in the alternative, “if notice was sent to plaintiffs, they did not receive such notice and were thereby denied the opportunity to redeem their property before the foreclosure was completed”; 6) they tendered to defendant the full balance of the debt which they owed defendant, including interest “and attorney’s fees” as soon as “they learned the full facts” of the foreclosure, but such tender was refused by defendant; and 7) subsequent to the foreclosure, defendant instituted a forcible detainer action against plaintiffs, which (at the time the petition in the district court was filed) was then pending in the Nueces County Court at Law following an appeal to that court from a Justice Court in Nueces County, Texas. Plaintiffs prayed that the district court grant a temporary injunction “restraining defendant from proceeding in the forcible detainer suit until this case is tried; that upon a trial of this case, the court award judgment cancelling the trustee’s deed to plaintiffs’ property”, and for general relief.

The application for the issuance of the temporary injunction was set down for hearing at 3:00 o’clock p. m., on June 15, 1978. Defendant, on the date set for the hearing on the application, filed his answer, which consisted of a plea to the jurisdiction, numerous exceptions, and certain affirmative defenses to the action. The plea to the jurisdiction was based upon defendant’s allegation that he had theretofore been awarded a judgment in a forcible detainer suit which he had filed against plaintiffs in Justice Precinct No. 1, in Nueces County, which judgment had become final insomuch as plaintiffs did not timely perfect an appeal therefrom. He attached to the plea: 1) a xerox copy of a purported writ of possession, signed by the Justice of the Peace, Precinct No. 1, Nueces County, Texas, and which recited that Dellon F. Beasley recovered judgment in Cause No. 31375 against Joe Martinez, Jr. and Guadalupe Martinez on March 6, 1978 “for the restitution” of certain premises therein described; 2) a xerox copy of an appeal bond which was filed in the Justice Court on April 7, 1978. Neither of the above documents was certified by the Justice of the Peace, but both were certified by the County Clerk of Nueces County as being copies which had been filed in Cause No. 24903-3, styled “Dellon P. Beasley v. Joe Martinez, Jr. and wife, Guadalupe Martinez ”, then pending in County Court at Law No. 3 of Nueces County, Texas.

The judgment, which was signed on June 19, 1978, denied plaintiffs’ application for the issuance of the temporary injunction, sustained defendant’s plea to the jurisdiction of the action brought by plaintiffs, and dismissed the suit. Plaintiffs complain of the ruling by the trial court in a single point of error, which reads:

“The trial court erred in sustaining Ap-pellee’s plea to the jurisdiction and ordering the dismissal of Appellants’ lawsuit.”

Plaintiffs do not contend in this appeal that the trial court erred in refusing to grant the temporary injunction as prayed for by them in their original petition. Therefore, the ruling by the trial court relating to the injunction feature of the case is now final and is not before us in this appeal; we express no opinion as to whether the trial court properly refused to grant plaintiffs’ application for the temporary injunction. We consider only the ruling which sustained the plea to the jurisdiction of the district court to hear and determine the merits of plaintiffs’ lawsuit.

Tex.Rev.Civ.Stat.Ann. art. 3994 (1966) provides:

“The proceedings under a forcible entry, or forcible detainer, shall not bar an action for trespass, damages, waste, rent or mesne profits.”

Although we have found no case directly in point, it has been held in House v. Reavis, 89 Tex. 626, 35 S.W. 1063 (1896), that the word “trespass” as used in the statute included a trespass to try title action and, therefore, a judgment of possession was not a bar to a trespass to try title suit. It was further held in Johnson v. Highland Hills Drive Apartments; 552 S.W.2d 493 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.), that a judgment of possession in a forcible detainer action does not bar a subsequent suit for damages resulting from a wrongful eviction. We see no reason why the rule, logic and reasoning of the above cases should not be applied to the instant case. Such conclusion is consistent with the theory that a forcible detainer action is for the sole purpose of determining who is entitled to the immediate possession of the premises, and is cumulative of other remedies, and not exclusive. Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368 (1962); Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (1935). Thus, a judgment of possession in a forcible detain-er action is a determination only of the right to immediate possession of the premises, and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question. Therefore, in this case, plaintiffs have the right to sue in the district court to determine whether the trustee’s deed should be cancelled, independent of defendant’s award of possession of the premises in the forcible detainer action, which determined the right to immediate possession of the premises, and nothing else. An action in forcible detainer in the justice court is one thing, and an action in the district court to determine whether a trustee’s deed to the premises involved in the forcible detain-er action should be set aside in something else.

Accordingly, we hold that the judgment of possession in favor of defendant in the forcible detainer action did not deprive the district court of jurisdiction to hear and determine plaintiffs’ suit to cancel the trustee’s deed to the subject property. Plaintiffs’ point is sustained. The judgment of the trial court which sustained defendant’s plea to the jurisdiction and dismissed this action for cancellation of the trustee’s deed is reversed, and the cause is remanded to the trial court with instructions to reinstate plaintiffs’ suit on the docket of the court for a trial on the merits.

REVERSED and REMANDED.


author: COLEMAN, Chief Justice.

text:
    James Wesley SHEPARD, Appellant, v. Elnora O. SHEPARD and Camille Yvonne Shepard, Appellees.
    No. 17288.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 21, 1978.
    Rehearing Denied Oct. 12, 1978.
    C. C. Divine, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Kenneth McLaughlin, Jr., Houston, for appellee.
   COLEMAN, Chief Justice.

The appellant has filed a motion to extend the time for filing of a transcript in the above captioned cause. A final judgment was entered in the case on June 6, 1978. Under Rule 386, T.R.C.P., the transcript was due to be filed on or before August 7, 1978. The transcript and appellant’s motion to extend time were received by this court on August 14, 1978.

Rule 21c, T.R.C.P., provides that an extension of time may be granted for filing in a court of civil appeals of a transcript “if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing as prescribed by the applicable rule or rules.” The transcript and the motion for an extension of time were received by the court within the fifteen day period specified in Rule 21c, T.R. C.P.

In his motion the movant states that he miscalculated the date on which the transcript was due because of a change in the law relating to appeal from the probate court. The transcript was ordered on August 9, 1978, two days after the date on which it was due to be filed in this court. The former law to which the movant apparently refers is Rule 336, T.R.C.P., which was repealed effective January 1, 1976. Under that rule he would have been required to file his transcript within thirty days. The term “reasonably explaining” as used in Rule 21c, supra, means any plausible statement of circumstances indicating that the failure to file within the sixty day period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance. Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.1977). The motion filed with this court in this case sets up no reasonable explanation. The motion will be denied.

Appellees have filed a motion that this appeal be dismissed for want of jurisdiction. We have refused to grant the appellant an extension of time within which to file his transcript. It was not filed within the time required by Rule 386, T.R.C.P. The provisions of this rule pertaining to the time within which the transcript must be filed are mandatory and jurisdictional and, therefore, must be complied with to invoke the appellate jurisdiction of the court. City of San Antonio v. Terrill, 501 S.W.2d 394 (Tex.Civ.App.-San Antonio 1973, ref’d n. r. e.). The appellant has properly moved for dismissal as authorized by Rule 405, T.R. C.P. The motion is granted and the cause is dismissed


text:
    Delcer D. KING, Appellant, v. Lawrence G. LOESSIN et al., Appellees.
    No. 17172.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Sept. 21, 1978.
    Rehearing Denied Oct. 19, 1978.

      Butler, Binion, Rice, Cook & Knapp, Michael Connelly and C. Thomas Behrman, Houston, for appellant.
    Mitchell, George & Belt, Terry L. Belt, Austin, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from an order overruling a plea of privilege. The question is whether the action of a purported agent is chargeable to the defendant where the purported agent is the employee of a corporation who was employed to do investigative work for the defendant. The plaintiff asserts that a trespass was committed in the county of suit which authorized venue in that county under Subdivision 9 of Article 1995, VATS. The judgment will be affirmed.

Deicer King, appellant, contracted with Smith Protective Services, Inc. to investigate a number of his competitors in the equipment business. Smith’s employee, Thompson, along with another employee burglarized the offices of appellee in order to obtain certain sales invoices. Appellee sued Smith Protective Services, Inc., Cal Meyers, the investigations manager for Smith, and appellant, King, for damages incurred as a result of the alleged break-in. King filed his plea of privilege to be sued in his county of residence. Appellee, Loessin, filed a Controverting Plea and incorporated his original petition into the pleading by reference. This pleading sufficiently alleged that an agent or representative of the defendant King, committed a trespass at Loessin’s business office in the county of suit.

It is undisputed that Thompson entered the premises of Loessin without permission of Loessin and removed certain items. The appellant contends that the plaintiff failed to prove that Thompson was an agent of King at the time of the trespass and that he was acting within the course and scope of his employment.

A contract between King and Smith Protective Services, Inc., is in evidence. It reflects that King contracted with Smith to conduct certain investigative services and agreed that the services would be performed by licensed investigators if required by law.

There was testimony that Mr. King told Mr. Meyers, who was acting for Smith Protective Services, Inc. that he desired an investigation of tool thefts and sabotage at his John Deere Tractor Agency and certain other matters. In particular, he wanted to determine who was selling parts to a competitor “at a lowest cost than what was the normal rule within his area.” Mr. Meyers testified that King explained to him what was required in order to satisfy the John Deere people that someone was infringing upon his region. Meyers stated that King told him that the only thing that would satisfy the John Deere people would be an invoice showing a 20% discount and that he wanted to secure one of those invoices. “He didn’t particularly care how he went about getting it and said money was no object.”

Mr. Meyers testified that while Mr. King did not specifically discuss a violation of the law in connection with the investigation, he did stipulate that he didn’t particularly care how he went about getting the information he needed. Mr. Meyers hoped that his employees would not exceed the law because they had been warned not to, but he stated that he had given Mr. Jerry Dolly permission to discuss the matter with Mr. King. Mr. Meyers stated that he told Mr. King that if anything criminal came up he was going to have to bear the burden if he was going to coach the Smith investigators.

Mr. Thompson was a Smith employee before the contract with King was executed. Thompson took his instructions from Meyers. Mr. Thompson testified that he went with Jerry Dolly to see Deicer King and that Dolly did all the talking. He didn’t hear Mr. King say anything about committing a burglary. Mr. Dolly gave him his instructions. Thompson admitted that he burglarized the Loessin Implement Company located in Weimar, Colorado County, Texas. He reported to Mr. Meyers after he “pulled the burglary”. Meyers paid him for “conducting such burglary” with a Smith Protective Services, Inc. payroll check.

The corporation was employed to secure, among other things, an invoice. Thompson and Dolly were assigned to this case. They talked with Mr. King and there is testimony that he furnished them a broken part to take to Loessin’s place of business for repair in order to give them an excuse for an entry.

There is nothing in the testimony of Mr. King which would support the conclusion that he had any right to control Smith as to the method or means by which the work contracted for was to be accomplished. There is no testimony that King in fact instructed either Meyers, Thompson, or Dolly concerning the methods to be used in conducting the investigations.

A crucial question for determination is whether Smith Protective Services, Inc. was an independent contractor or whether the corporation and its employees had the status of agents or employees of King. The written agreement merely provides that Smith Protective Services, Inc. will be compensated at the rate of $20 per hour plus expenses for its investigative services. It does not specify the services to be rendered.

Although there is no single rule that is absolute and definite, the outstanding and ultimately decisive consideration in determining the independence of the contract is the employers right to control the details of the work. The basic test of a contractor is that he render service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. Thus, if the employer is interested only in the results, and there is left to the party performing such services complete control of the details as to the method and manner of such performance, then the relationship of independent contractor exist. 30 Tex. Jur.2d Independent Contractors, Section 6, pp. 481 et seq.

An employer is not responsible for the acts or omissions of an independent contractor and his subcontractors or servants, committed in the prosecution of work that is not in itself unlawful or attended with danger to others. The doctrine of respondeat superior has no application. 30 Tex.Jur.2d, Independent Contractor, Section 17, pp. 300 301.

A person who contracts with another to perform a service unlawful in itself, even as an independent contractor, is responsible in damages for injury which might result from the performance of that service. Taylor v. Dunn, 80 Tex. 652, 16 S.W. 732 (1891); Moore & Savage v. Kopplin, 135 S.W. 1033 (Tex.Civ.App.1911, writ ref’d).

There is evidence which will support an implied fact finding of contemplated illegal activity on the part of Smith Protective Services, Inc. in conducting the investigation and of authorizing such activity if necessary to the successful completion of the investigation. This fact will be presumed found in support of the trial courts judgment. Under such circumstances the employer would not be insulated from liability by reason of the fact that the person perpetrating the offense might otherwise enjoy the status of an independent contractor.

Where an agents act is done within the scope of his authority, while acting in the furtherance of the principal’s business, the principal is liable for his actions regardless of whether he had authority to do the particular act complained of, and regardless of whether he may have performed the act in the ordinary manner. Magnolia Petroleum Co. v. Guffey, 102 S.W.2d 408 (Tex.1937).

A “trespass” within the meaning of Subdivision 9 of Article 1995, supra, includes injuries to property resulting from wrongful acts, either wilfully inflicted or the result of affirmative active negligence on the part of the wrongdoer, as distinguished from injuries that are the result of a mere omission of duty. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943).

One who enters on land of another without having the consent of the owner commits a trespass on land. Schronk v. Gilliam, 380 S.W.2d 743 (Tex.Civ.App.—Waco 1964, no writ). A common law action of trespass is included within the meaning of the word “trespass” as used in Subdivision 9 of Article 1995, supra. Hawkins v. Schroeter, 212 S.W.2d 843 (Tex.Civ.App.—San Antonio 1948, no writ).

To sustain venue under Subdivision 9, Article 1995, supra, the plaintiff must establish by a preponderance of the evidence (a) that a trespass has been committed; (b) that it was committed in the county of suit; and (c) that the defendant asserting his privilege committed the acts, or that they were committed by another under circumstances that make the defendant legally responsible. Langford v. Craft, 498 S.W.2d 42 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.).

The venue facts required to be established in order to maintain venue under Subdivision 9, Article 1995, supra, have been established by a preponderance of the evidence.

Affirmed.