author: BISSETT, Justice.

text:
    TALLY HO MOTEL et al., Appellants, v. Anita WILSON et vir., Appellees.
    No. 1298.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 18, 1978.
    Richard Hall, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellants.
    James B. Williamson, LaPorte, for appel-lees.
   OPINION

BISSETT, Justice.

This is an appeal from a default judgment. A statement of facts was not prepared. We reverse and remand.

Anita Wilson and husband, Herbert C. Wilson, filed suit against Tally Ho Motel and Romney International Hotels, Inc., on January 10, 1975, to recover damages allegedly sustained by Mrs. Wilson, when she, as a paying guest at the Tally Ho Motel, slipped and fell while walking from one portion of the Motel to another portion. She sought damages in the amount of $14,-500.00. Plaintiffs filed a “Motion for Default Judgment” in the trial court on December 10, 1976, wherein, it was alleged, among other allegations, that the defendants “neither appeared in the cause nor filed an answer herein”. Default judgment against the defendants in the amount of $14,500.00 was rendered on April 14, 1977. Defendants have appealed.

Defendants did not file an answer, nor did they make an appearance in the trial court. They were not present in the courtroom when the motion for default judgment was presented to the court, nor were they present when the court made its pronouncement and signed the judgment order.

The judgment recites:

“[A]nd the Court having heard and considered argument, finds that the Plaintiffs, Mrs. Anita Wilson and her husband, Herbert C. Wilson are entitled to judgment in the sum of $14,500.00 against the Defendants Tally Ho-Motel and Remney (sic) International Hotels, Inc. . . . ”

Apparently, no evidence was heard by the trial court, but if evidence was heard, no request was made that the court reporter make a record of such evidence. In any event, a statement of facts was not prepared by the court reporter. The claim for damages was unliquidated.

An appellant against whom a default judgment is rendered in a suit where the claim of damages is unliquidated, and through no fault of his own is unable to obtain a statement of facts, is entitled to a new trial in order to have the case reviewed on appeal. See Smith v. Smith, 544 S.W.2d 121 (Tex.Sup.1976); Robinson v. Robinson, 487 S.W.2d 713 (Tex.Sup.1972); Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697 (Tex.Com.App.1936, opinion adopted); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App. — Dallas 1975, writ ref’d); Kimmey v. El Campo Independent School District, 566 S.W.2d 363 (Tex.Civ.App.), an opinion by this Court which was handed down on May 4, 1978, but which is unreported at this time.

We find that Tally Ho Motel and Romney International Hotels, Inc., defendants-appellants, through no fault of their own are unable to obtain a statement of facts. Under the circumstances, the appellants’ right to have the case reviewed on- appeal can be preserved in no other way than by a retrial of the case.

The judgment of the trial court is REVERSED and the cause is REMANDED for a new trial.


source: Caselaw Access Project

author: RALEIGH BROWN, Justice.

license: Public Domain

text:
    LIFETIME COMMUNITIES, INC., Appellant, v. CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 5164.
    Court of Civil Appeals of Texas, Eastland.
    June 8, 1978.
    George C. Black, Jr., Dallas, for appellant.

      George Vorphal, Luna & Murto, Dallas, for appellee.
   RALEIGH BROWN, Justice.

The issue presented is whether an independent school district may recover attorney’s fees in a suit for collection of delinquent property taxes, penalties and interest.

Carrollton-Farmers Branch Independent School District sued Lifetime Communities, Inc., for the collection of delinquent taxes, penalties, and interest relating to real property owned by Lifetime. The school district also sought recovery of attorney’s fees at the rate of 15% on all taxes, penalty and interest owed at the time of judgment. Summary judgment was rendered in favor of the school district for delinquent taxes, penalty and interest in the amount of $19,-431.37 with interest thereon at the rate of 9% per annum from February 18,1977 until paid and in such judgment a recovery for attorney’s fees was denied.

The trial court then heard evidence as to the claim of the school district for attorney’s fees and awarded such fees in the sum of $1,943.14. This represented 10% of the amount of the delinquent taxes, penalty and interest awarded to the school district by the summary judgment. Lifetime appeals, complaining of the award of attorney’s fees. We affirm.

Lifetime argues the trial court erred in holding that the school district should be awarded attorney’s fees because (1) an independent school district, under the facts of this case, is not authorized or permitted to collect attorney’s fees; (2) appellee neither pleaded nor proved that the county attorney had been instructed to file suit and had refused to do so; and, (3) appellee neither pleaded nor proved that appellee had a contract authorizing compensation to be paid to any attorney.

The record for review in the instant case consists solely of the transcript. It includes no request for a statement of facts nor for findings of fact and conclusions of law. Lifetime’s first amended original answer, upon which it went to trial, does not include special exceptions addressed to the issues raised in its second and third points of error. In considering points of error numbers two and three our duty is expressed by the court in Smith v. Pulliam, Inc., 388 S.W.2d 329 (Tex.Civ.App. — Fort Worth 1965, writ ref. n. r. e.) to wit:

“In our examination of the entire record we find no affirmative showing that any exception to the appellee’s pleadings was ever presented to or acted upon by the trial court as required by Rule 90, Texas Rules of Civil Procedure. We must therefore assume that any defect, omission or fault in the pleadings of the appellee was waived by appellants . . ”

See also Lewter v. Dallas County, 525 S.W.2d 885 (Tex.Civ.App. — Waco 1975, writ ref. n. r. e.); Gambill v. Mathes, 490 S.W.2d 863 (Tex.Civ.App. — Dallas 1973, writ dism’d); Ex Parte Woodruff, 483 S.W.2d 951 (Tex.Civ.App. — Texarkana 1972, writ dism’d).

Points of error No. 2 and No. 3 are overruled.

We further hold that in the instant case the school district was properly awarded attorney’s fees in its suit for collection of delinquent property taxes, penalties and interest.

Both the school district and Lifetime rely on Article 7335, 7335a, and 7343, T.R.C.S., and Section 23.98, Tex.Educ.Code Ann. in support of their positions regarding the recovery of attorney’s fees in suits by an independent school district to collect delinquent taxes.

Article 7335 authorizes a Commissioners Court to employ any competent attorney to assist in the collection of delinquent taxes for a percent of the taxes, penalty and interest actually collected and provides:

“ . . . but such fees shall nevertheless be collected as a part of the costs of suit and applied on the payment of the compensation allowed the attorney prosecuting the suit, . . . ” (Emphasis ours.)

Article 7335a limits the amount of compensation under Article 7335 to no more than fifteen percent of the amount collected.

Article 7343 in its concluding paragraph provides:

“All laws of this State for the purpose of collecting delinquent State and county taxes are by this law made available for, and when invoked shall be applied to, the collection of delinquent taxes of cities and towns and independent school districts in so far as such laws are applicable.”

This article also provides:

“ . . . said governing body may employ some other attorney of the county to file suits and the city attorney or other attorney filing said suits shall be entitled to the same fees as allowed the county attorney or district attorney in suits for collection of State and county taxes, to be taxed as costs in the suit . . . ” (Emphasis ours.)

Section 23.98, Tex.Educ.Code Ann., in part states:

“Any independent school district may contract with any competent attorney of this state for the collection of delinquent taxes for the independent school district and compensate him for his services in an amount not to exceed that allowed attorneys collecting delinquent taxes for the state and county.”

Additionally, Article 1060a, T.R.C.S., makes all of the provisions of Title 122 of the Texas Revised Civil Statutes (Articles 7041-7359a) available when necessary to all school districts and municipal corporations.

The court in Beil v. Mansfield Independent School District, 133 Tex. 403, 129 S.W.2d 629 (1939) held that Articles 7335, 7335a and 7343 are available to school districts. We hold, under the statutes and Bell, that the trial court correctly awarded attorney’s fees.

Appellant argues that Arnold v. Crockett Independent School District, 389 S.W.2d 608 (Tex.Civ.App. — Tyler 1965), aff’d in part and rev’d in part, 404 S.W.2d 27 (Tex.1966) is directly in point and resolves the issue at bar wherein the court held:

“We are of the opinion that, since the school district gets its authority to contract and pay its attorney 15% of the tax, penalty and interest as a fee for the collection of its delinquent taxes from Articles 7343, 7335 and 7335a, and since neither of said statutes authorize said fee to be taxed as cost in a suit for the collection of such taxes, the court was in error in allowing same to be recovered and taxed as court cost in this suit.” We disagree with such holding.

We have considered and have overruled all points of error. The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Peggy W. BURNS, Appellant, v. Waymon L. BURNS, Jr., Appellee.
    No. 17975.
    Court of Civil Appeals of Texas, Fort Worth.
    June 8, 1978.

      Thompson, Coe, Cousins & Irons, and Franklin H. Perry, Dallas, for appellant.
    Rudd & Smith and James T. Rudd, Grand Prairie, for appellee.
   OPINION

MASSEY, Chief Justice.

By default judgment of July 19, 1977 Waymon L. Burns, Jr. was granted a decree of divorce of and from the defendant Peggy W. Burns, with attendant provision for property distribution.

Though the case was one for divorce, involving delay before it would be ripe to be heard, circumstances obviate consideration of that fact so that in respect to “time table” for procedural purposes it would not be different from other types of cases. The citation was served upon Mrs. Burns in Oklahoma, where she had become resident, on June 21, 1977. The case was ripe to be heard in the event of a default, and by Mrs. Burns’ failure to file any answer, on July 18,1977. It was the following day that the default judgment was obtained. Two days later, July 21, 1977, Mrs. Burns filed her motion for new trial. The trial court heard such motion, with the evidence tendered thereat, and entered its order overruling the request on August 9, 1977. Therefrom Mrs. Burns has appealed.

We reverse the judgment and remand the cause, with order requiring a new trial.

Applicable law in the premises is settled to be the contrary of the writer’s conception of propriety. See his dissenting opinion in the case of General Portland, Inc. v. Collins, 549 S.W.2d 757 (Tex.Civ.App. — Fort Worth 1977, writ ref’d n. r. e.). It is by the “no reversible error” stamp upon the majority opinion by our Supreme Court that the law to the contrary is settled. It is by conforming to the opinion of the majority of this court in General Portland, which opinion was primarily based upon that in Ward v. Nava, 488 S.W.2d 736 (Tex.1972), that the following opinion is written.

By affidavit of Mrs. Burns attached to her motion for new trial was presented the contention that after the parties’ marriage she had advanced $20,000.00, possessed prior to marriage, to her husband to be used in the retirement of his personal obligations incurred prior to the marriage. (On the hearing of the motion Burns was called to the stand, and he testified that he knew at the time of the default judgment that Mrs. Burns contended that he owed the above amount to her. He also testified that the matter was not brought to the attention of the trial court at time of trial of his divorce case. Noticed is that the statement of facts made part of the record on appeal does not include the proceedings at time of the trial of the divorce case, but only of the proceedings upon the hearing of the motion for new trial.)

By verification of the motion for new trial, and the facts therein, the attorney for Mrs. Burns set forth that he misread the date on which Burns had filed his suit for divorce as having been June 3, 1977, when in fact such date was that on which the citation was issued, the case having actually been filed on March 18,1977. On this there was no testimony on the hearing below.

By what seems to be settled as the record to be treated as properly before us on appeal, we find no conscious indifference on the part of Mrs. Burns or her attorney; nor do we find that either intended that a default judgment be taken in the case.

We also find that a meritorious defense was alleged in the motion for new trial and in the sworn statement of Mrs. Burns appended thereto in support. Such a defense lay in her claim of Burns’ personal indebtedness to her in the amount of $20,000.00, used to retire his debts owing at time of the marriage. Any question thereof, by the testimony of Burns upon the hearing, could not have been a part of the matter tried at time of the default judgment. Not having been tried it could not have been considered by the court in the apportionment of property by its judgment.

To be kept in mind is that applied to the matter of “meritorious defense” there is a certain similarity to the rule in summary judgment cases, in that the trial court was not at liberty upon the hearing of the motion for new trial to try the merits of any asserted defense. Instead the court was confined to a determination of whether there was, in fact, any issue to be tried. To be observed by the holding in Ward v. Nava is that even if there was no oral testimony, and the evidence to be considered only by the movant’s affidavits, thereby would the determination be made — with credibility of the affiant eliminated as a factor for determination.

If the judgment could be affirmed it would, necessarily, be because Mrs. Burns failed, by the presentation at the hearing of her motion, to establish that Burns would not be caused to suffer injury by a new trial. This was her obligation, with obligation in the alternative to offer to “do equity” by tendering to Burns his expenses incurred incident to obtaining the default judgment. Rules of equity required that, as a condition precedent to any entitlement to a new trial, that Mrs. Burns desired that the respondent to her motion not be prejudiced thereby by being placed in a worse condition than that in which he would have been had her answer been timely filed. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939).

Shown at time of the hearing upon the motion for new trial was that Burns was a resident of the county of suit before the judgment and at time the motion for new trial was filed and was heard. The clear implication is that he could be in attendance upon the court in the event of a new trial, without substantial inconvenience. There was evidence that Burns knew that his wife was contending that he owed her money at times when the case was tried and at time of the filing of her motion for new trial. Under these circumstances it must be held that Mrs. Bums made out a prima facie case of proving the negative; no injury to Burns by retrial. By reason of this, the burden of going forward shifted to Burns. He did not do so. There was no evidence that he would be damaged in any respect by the granting of a new trial. In other words that was no evidence that he would suffer irreparable loss in that he would be in a worse condition, i. e., not recompensed, etc., than he would have been had his wife’s answer been filed prior to the time there was rendition of the divorce judgment.

Under the foregoing circumstances, by the holding in a case of similarity as applied to the question, there was satisfaction of the requirement that Burns be shown to have been in no worse condition in the event of a new trial than that in which he would have been had answer to his suit been timely filed. Hanks v. Rosser, 378 S.W.2d 31, 36 (Tex.1964).

On the matter considered in the preceding paragraph, one common to bill of review cases as well as the cases like unto the one before the court, the author had occasion to write extensively on an earlier occasion. See Crabbe v. Hord, 536 S.W.2d 409, 413 (Tex.Civ.App. — Fort Worth 1976, writ ref’d n. r. e.). In the present case Mrs. Burns offered, at oral presentation, to do equity in the event there was necessity therefor by our determination and a dereliction by her in a failure to make a tender at a proper time in the trial court. We are of the opinion that such a tender at the appellate stage is of no avail. Mrs. Burns may not remedy a deficiency in her case in the trial court by a delayed tender. However, as heretofore stated, her proof in the trial court sufficed to prove, prima facie, that there was be no injury by the trial court’s granting of her motion. By our understanding of the Supreme Court, in Hanks v. Rosser, there was not the necessity that Mrs. Burns make the tender before the trial court because her evidence sufficed to prove no injury by grant of her motion, and there was no controverting proof.

In his brief Burns shows that if new trial be granted he will be forced to sustain expenses incident to his proper representation as a defendant to the divorce case filed in Oklahoma by Mrs. Burns at a date earlier than that on which he had filed his own divorce case in Texas. There is also reference to the consequent exposure which results because Oklahoma is an “alimony” state. Expenses not accrued to a plaintiff by the time of the filing of a defendant’s motion for new trial, or not by some change of position to his detriment in the reliance upon the validity of the judgment prior to the time of the filing of the motion for new trial, would be improper to be taken into consideration. Burns’ demonstration in the foregoing respect may not be considered.

The judgment is reversed, with the cause remanded for new trial.


author: McDONALD, Chief Justice.

text:
    Marshall G. COCHRAN, Appellant, v. AMERICAN SAVINGS AND LOAN ASSOCIATION OF HOUSTON, Appellee.
    No. 5842.
    Court of Civil Appeals of Texas, Waco.
    June 8, 1978.
    Rehearing Denied July 31, 1978.

      Stanley B. Binion and William E. Junell, Jr., Reynolds, Allen & Cook, Houston, William E. Steen, Anderson, for appellant.
    Jonathan S. Day, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is a usury case. Plaintiff (appellant) Cochran sued defendant (appellee) American Savings and Loan Association seeking to recover statutory penalties provided in Article 5069-1.06 VATS, alleging American contracted for, charged and received interest in excess of the maximum allowed by law (10%) on a $330,000. real estate loan. Defendant (appellee) American denied allegations of usury and counterclaimed for deficiency judgment on the note.

Plaintiff owned 2.49 acres in Harris County at the northwest corner of West Bellfort Avenue and Southwest Freeway, on which he owed Houston-Citizens Bank $250,000. Plaintiff contacted defendant American and proposed to sell 20,000 square feet off the corner of the 2.49 acre tract, and also applied for a $250,000. loan to refinance the debt due Houston-Citizens Bank.

On July 23, 1974 American made written commitment good until November 15,1974: 1) To lend plaintiff $330,000. on the 2.49 acre tract; at 10% interest to be paid quarterly; with principal to be paid in 5 years; 2) Plaintiff to pay American a 1% ($3,300.) commitment fee; 3) American have option for 1 year to purchase the 20,000 square feet at $4.00 per square foot ($80,000.) plus 10% interest on the $80,000. from date of commitment; 4) Plaintiff to pave Bellfort Avenue adjacent to the property, and loan not be funded prior to completion of such paving.

Cochran paid the $3,300. commitment fee and let contract for paving Bellfort Avenue. On November 7,1974 (the paving was not complete and the commitment was to expire November 15, 1974) American amended the commitment agreement: 1) To make the $330,000. loan; 2) Required Cochran to escrow $56,000. for completion of the paving; and 3) Reduced the option price of the 20,000 square feet to delete the 10% interest on the $80,000. from July 23, 1974 until exercise of the option.

The loan was closed on November 14, 1974. Plaintiff signed note for $330,000. bearing interest at 10% (principal payable in 5 years, and interest payable each first day of January, April, July and October), and secured the note with deed of trust on the 2.49 acres. Defendant funded the loan on November 18, 1974. Defendant billed plaintiff for interest to January 1, 1975 in the amount of $4,216.67 representing 46 days interest at 10%, which amount defendant paid. Defendant billed plaintiff for interest to April 1, 1975 in the amount of $8,247.60; which plaintiff did not pay. Defendant then accelerated the note, demanded full payment of principal, interest and attorneys' fees. Plaintiff arranged to borrow such money conditioned defendant would release its option to purchase the 20,000 square feet. Defendant refused to release the option; plaintiff did not pay; and defendant foreclosed on July 1, 1975 buying in the property for $275,000.

Trial was to a jury, findings of which are summarized as follows:

1) As a condition to making the $330,-000. loan on November 14, 1974 American required Cochran to grant American option to purchase 20,000 square feet out of the 2.49 acre tract.
2) The grant by Cochran to American of such option constituted interest on the $330,000. loan.
3) The option to purchase the 20,000 square feet had “No money value” to American.
4) Failed to find that by requiring Cochran to grant American option to purchase the 20,000 square feet American employed a method or plan intended to obtain from Cochran interest in excess of 10%.
12) As a condition to making the $330,-000. loan American required Cochran to relinquish his right to a refund of 10% interest on the $80,000. option price as provided in the letter agreement of July 23, 1974.
13) The relinquishment by Cochran of his right to refund of 10% interest on the $80,000. option price constituted interest on the $330,000. loan.
14) The value to American of the relinquishment by Cochran of interest on the $80,000. option price was $4,000.
15) Failed to find that by requiring Cochran to relinquish his right to a refund of 10% interest on the $80,-000. option price, American employed a method or plan by which American intended to obtain interest in excess of 10% on the $330,000. loan.
16) American intended to charge Cochran interest at the daily rate of $91,667 for each and every day the $330,000. loan was outstanding.
17) Failed to find that American by charging interest at the daily rate of $91,667 employed a method or plan by which American intended to obtain interest in excess of 10% on the $330,000. loan.
19), 20) $65,000. is a reasonable attorneys’ fee for Cochran in the trial court; and $11,000. is a reasonable attorneys’ fee on appeal.

Both parties moved for judgment. The trial court rendered judgment: 1) plaintiff Cochran take nothing in his suit against American; and 2) American recover $81,-671.33 on its counterclaim against Cochran for deficiency.

Plaintiff appeals on 16 points, contending the trial court erred in rendering the judgment, which we summarize as follows:

1) Defendant contracted for, charged, and received usury in connection with the $330,000. loan of November 14, 1974.
2) Plaintiff is entitled to recover its reasonable attorneys’ fees.
3) The jury’s response to issues 4, 15 and 17 relating to American’s intent to charge usury are immaterial and should be disregarded.
4) American’s contract for, charge, and/or receipt of usury was not the result of an accidental and bona fide error.
5) Cochran is entitled to judgment as prescribed by Article 5069-1.06 VATS, and American is not entitled to judgment on its counterclaim.
6) The foreclosure sale should be set aside and Cochran should be reinstated as lawful owner of the property.

Article 5069 VATS provides:

1.01 a) “ ‘Interest’ is the compensation allowed by law for the use * * of money * *.
d) ‘Usury’ is interest in excess of the amount allowed by law.
1.02 Except as otherwise fixed by law, the maximum rate of interest shall be 10%. A greater rate of interest than 10% per annum unless otherwise authorized by law shall be deemed usurious. * *
1.04 The parties to any written contract may agree to and stipulate to any rate of interest not exceeding 10% * *.
1.06 Any person who contracts for, charges or receives interest which is greater than the amount authorized * * shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorneys’ fees fixed by the court, provided that there shall be no penalty for a violation which results from an accidental and bona fide error”.

Windhorst v. Adcock Pipe and Supply, Tex., 547 S.W.2d 260 holds the language “contracts for, charges or receives usurious interest” is in the disjunctive, and that only one such condition need occur to trigger penalties.

The note for $330,000. provided on its face for interest at 10%. Thus, any additional interest contracted for, charged or received would be usurious.

The jury in its answers to Issues 1 and 2 found that defendant required Cochran to grant it option to purchase the 20,000 square feet and that same was interest on the $330,000. loan. And the jury in its answers to Issues 12, 13 and 14 found that defendant required Cochran to relinquish his right to a refund of 10% interest on the $80,000. option; that this constituted interest on the $330,000. loan; and such had a value of $4,000.

But the jury in answer to Issue 3 found the option to purchase the 20,000 square feet had “no money value” to American. Such option was at $4.00 per square foot or a total of $80,000. There was evidence from which the jury could have found the land to be worth less than $80,000. or more than $80,000. The jury’s answer to Issue 3 is sustained by the evidence, and there is no complaint that such answer is against the great weight and preponderance of the evidence. If the option had “no money value” at an option price of $84,000. then it could have no money value at an option price of $84,000. which would have been the option price with the 10% interest added.

Defendant billed plaintiff for interest due January 1, 1975 in the amount of $4,216.67. Defendant’s witness testified and the jury found in answer to Issue 16 that defendant intended to charge Cochran interest at the daily rate of $91,667 for each and every day the $330,000. loan was outstanding. The evidence was that such charge was computed on a 360 day per year method, which amounts to more per day than computation on the 365 day per year method. The difference in computation methods equalize if properly applied because under the 360 day per year method each month is calculated on a 30 day basis without reference to the number of days actually in the month. Under the 360 day per year charge defendant could have charged interest for 43 days, and under the 365 day per year method defendant could have charged interest for 44 days. Defendant in fact charged and collected interest on the 360 day method and for 46 days. This amounted to excessive interest under the 365 day method of $238.68, and excessive interest under the 360 day method of $274.99. And defendant admits in its brief that $183.33 was overcharged which it has never offered to refund or give plaintiff credit for. The amount of interest charged and collected, amounts to 10.139%.

In defendant’s counterclaim defendant shifted to the 365 day method for computation of interest, and admits in its brief that it overcharged interest in the amount of $90.41 in the foreclosure.

Here the trial court submitted Issue 16 which found defendant intended to charge $91,667 for every day the loan was outstanding (which was an annual rate of 10.139%) and then submitted Issue 17.

“Do you find from a preponderance of the evidence that American by charging interest at the daily rate of $91,667 per day, employed a method or plan by which American intended to obtain from Cochran interest in excess of 10% per an-num on the $330,000. loan made on November 14, 1974?
“Answer: We do not”.

Such finding means that it was not established that American intended to obtain interest in excess of 10%, but such finding does not establish the converse. C. & R. Transport, Inc. v. Campbell, Tex., 406 S.W.2d 191; Texas General Indemnity Co. v. Dickschat (Tex.Civ.App., Waco) NRE, 440 S.W.2d 922.

Issue 17 was followed by Issue 18 which was conditionally submitted as follows:

“If you have answered Special Issue 17 ‘We do’, and only in that event, then answer:
“Issue 18. Do you find from a preponderance of the evidence that any additional interest charged by reason of the use of a daily rate of $91,667 resulted from accidental and bona fide mistake by representatives of American Savings?
“Answer: ‘We do’ or ‘We do not’.
“Answer: -”.

It was defendant’s burden to secure a finding of “accidental or bona fide mistake” in the overcharge of interest, as inquired about in Issue 18.

The trial court conditionally submitted such issue, and as a result of such conditional submission it was not answered by the jury.

Rule 279 TRCP provides in part:

“Upon appeal all independent grounds of * * defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived * * *

McDonalds Civil Practice (1970) Section 12.36.2 p. 433 commenting on such section of Rule 279 says:

“When an independent ground of * * defense is raised by the pleadings and by the evidence sufficient to justify its submission but not sufficient to establish it conclusively, the ground is waived if no ultimate issue clearly referable thereto is included in the charge and no issue is requested by the party relying upon the ground. This rule has been applied also, where jury findings upon the independent ground * * of defense are lacking because the ground was improperly submitted on conditions which, on the findings -made on unconditionally submitted special issues, relieved the jury of the necessity of answering the special issues related to the ground, provided that the proponent did not object to the conditional submission. A judgment will not be sustained on appeal upon any presumption of findings favorable to it upon such omitted ground”.

Our Supreme Court holds in Strauss v. LaMark, 366 S.W.2d 555, 557:

“Under the provisions of Rule 279 TRCP, an independent ground of * * defense not conclusively established by the evidence is waived if no issue thereon is given or requested. * * *

“The presumed findings provisions of the Rule apply when an answer to a controlling issue is prevented by improper conditional submission without objection or request by the party who is entitled to and should insist upon a jury finding thereon.”

To the same effect is Hopkins v. Standard Fire Ins. Co. (Tex.Civ.App., Houston 1st) NWH, 554 S.W.2d 270.

As noted it was defendant’s defense inquired about in Issue 18 and it was defendant which should have insisted upon a. jury finding to Issue 18, and by failing to do so, or by failing to object to its conditional submission, waived such ground of defense under the authorities cited.

In the foreclosure proceeding, defendant shifted to the 365 day method of computing interest, and admits to a $90.41 overcharge in interest, which is usurious. No issue was requested here inquiring if the overcharge resulted from accidental or bona fide error, which was defendant’s burden to request under Rule 279.

We sustain plaintiff’s contentions that defendant charged and received usury; that the jury’s response to Issues 4, 15, and 17 are immaterial; and that defendant has not carried its burden to establish that its charge for and receipt of usury was the result of accidental and bona fide error.

We reverse the judgment and remand the case in the interest of justice. Accordingly the case is remanded to the trial court in its entirety. Morrow v. Shotwell, Tex., 477 S.W.2d 538; Scott v. Liebman, Tex., 404 S.W.2d 288.

REVERSED AND REMANDED.


author: MURRAY, Justice.

text:
    Jack J. SCHULZ, Appellant, v. Carroll ZOELLER et al., Appellees.
    No. 16010.
    Court of Civil Appeals of Texas, San Antonio.
    June 14, 1978.
    Rehearing Denied July 12, 1978.

      Shelby W. Hollín, San Antonio, for appellant.
    Roger W. Wooldridge, San Antonio, for appellees.
   MURRAY, Justice.

This suit was brought by appellees, Carroll Zoeller, et al., property owners in North Barcroft Estate Unit No. 1, against appellant Jack J. Schulz, to enjoin the violations of restrictive covenants in his deed. Appel-lees base their cause of action on allegations that appellant had violated that restrictive covenant in his deed which reads, “All buildings must be completed not later than six months after laying foundation and no structures or house trailers of any kind may be moved onto the property.”

North Barcroft Estates Unit No. 1 is a 526.05 acre subdivision situated in Kendall and Comal Counties and platted into 99 tracts by the owner, Lakecroft Beach Estates, Inc. The average size of the tracts is five acres. The plat was duly recorded in the Plat Records of Kendall County, Texas, and there are no restrictions or covenants shown on the plat. There is no designation of residential or business tracts on the plat. The only restrictions and covenants pertaining to North Barcroft Estates Unit No. 1 are contained in the individual deeds from the owner to the grantees. While it is true that each deed in Unit No. 1 of a residential lot contained the same covenants and restrictions, the owner was not obligated by any written instrument to place covenants or restrictions in subsequent deeds of purchase. The owner could designate any tract in Unit No. 1 residential or business as it saw fit.

The restrictions contained in the appel-lees’ and appellant’s deeds are too lengthy to reproduce here in full. We shall therefore set forth only the material portions thereof as follows, to wit:

This conveyance is made subject to all restrictions, assessments, restrictive covenants, easements, and reservations of all rights, titles and interests in and to the surface and subsurface minerals which are of record; and is also subject to the following assessments and reservations in favor of Grantor, its successors and assigns, and to the following covenants, conditions, and restrictions adopted for the benefit of all persons who shall own property in NORTH BARCROFT ESTATES, the subdivision above described, said covenants, conditions and restrictions to be binding upon and be observed by the Grantees herein as well as Grantees, heirs, executors, administrators and assigns.
1. All tracts shall be used solely for residential purposes, except tracts designated for business purposes provided, however, no business shall be conducted on any of these tracts which is noxious or harmful by reason of the emission of odor, dust, smoke, gas fumes, noise or vibration; and provided further that the Grantor expressly reserves the right until January 1, 1975 to vary the use of any property notwithstanding the restrictions embodied in this conveyance should Grantor in its sole judgment deem it in the best interests of the property to grant such variances. The granting of any such variance by the Grantor shall be specifically stated in both the contract of sale and in the Grantor’s deed conveying said tract or tracts.
2. Tracts designated as business may be used either for residential or business purposes provided, however, that if used for a business the nature and purpose of the business use shall first be approved in writing by Grantor, its successors, assigns or designees. No tract may be subdivided unless written approval is given by the Grantor, its assignees or designees.
3. No building other than a single family residence containing not less than 900 square feet, exclusive of open porches, breezeways, carports and garages, shall be erected or constructed on any residential tract in North Barcroft Estates and no garage may be erected except simultaneously with or subsequent to erection of residence. All buildings must be completed not later than six (6) months after laying foundations and no structures or house trailers of any kind may be moved on to the property. .
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5. No building or structure shall be erected or constructed on any tract until the building plans, specifications, plot plans and external design have first been approved in writing by the Grantor, or by such nominee or nominees as it may designate in writing.
6. No advertising or “For Sale” signs shall be erected in North Barcroft Estates without written approval of Grant- or.
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11. All covenants and restrictions shall be binding upon the Grantees or their successors, heirs or assigns. Said covenants and restrictions are for the benefit of the entire property.
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16. These restrictions are to run with the land until June 1, 1995, provided, however, that the record owners of a majority of the tracts in North Barcroft Estates shall have the power through a duly recorded written instrument to extend this covenant for extensive ten (10) year periods from and after June 1, 1995.

Mr. Ed Courtney, vice president of the owner, Lakecroft Beach Estates, Inc., testified that 98 of the 99 tracts in Unit No. 1 had been sold as residential units with the identical restrictions contained in each deed.

In January of 1976, the appellant bought an old house in the city of San Antonio, Texas, and had it moved onto his lot in Unit No. 1. In February of 1976, the appellees filed suit in the district court alleging that the moving of the house onto the property was in violation of the restrictions in the subdivision and asked the court to require appellant to remove the house from his lot. After a trial before the court without a jury, judgment was entered in favor of ap-pellees, requiring appellant to remove the house from his lot. The main issue presented by appellant is whether the evidence shows that there was a general plan or scheme for the development of Unit No. 1 as would entitle appellees to enforce the restrictions against appellant. We affirm.

We think the law is as stated in 26 C.J.S. Deeds § 167(2) (1956), page 1143, to wit:

Where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, either on the theory that there is a mutuality of covenant and consideration, or on the ground that mutual negative equitable easements are created. The doctrine does not depend on whether the covenant is to be construed as running with the land.

Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (1922); Green v. Gerner, 289 S.W. 999 (Tex.Comm’n App.1927).

It is appellant’s position that because the owner was not obligated to place restrictions in each deed of purchase, a plan or scheme for development cannot be shown. We disagree. Assuming that the owner was not obligated to develop Unit No. 1 according to a preconceived plan or scheme, if the owner did in fact develop the subdivision which resulted in a restricted residential subdivision, we hold that the restrictions may be enforced by one grantee against any other grantee.

We believe the case of Green v. Ger-ner, supra, is directly in point. In Green v. Gerner, certain grantees sued Green to restrain him from erecting an apartment house containing eight apartments in the Roseland Addition to the City of Houston in violation of a building restriction. On appeal from the trial court’s granting of a temporary injunction, the commission of appeals held that a plan or scheme was not shown. Only 11 lots out of 86 lots had been sold and a large part of the subdivision was not subdivided into lots and a large portion of the subdivision was still unsold. The owner was not obligated to place restrictions in any subsequent sale. The case of Green v. Gerner, 27 S.W.2d 828 (Tex.Civ.App.- — Austin 1930, writ ref’d), was an appeal from the same case on the merits wherein the trial court directed a verdict enjoining Green from violating building restrictions. The court held that a plan or scheme was shown in the second trial. The record in the second trial showed that the residential plan had been carried out with reference to every lot except one. In the present case, as in Green, the owner was not obligated to place restrictions in each subsequent deed of purchase. When all the lots of a subdivision are sold with the same or similar restrictions, a general plan or scheme is thereby adopted. In Green, the Austin Court of Civil Appeals said at page 829:

The general plan of a residence district with restrictions as contained in the deeds of appellant and appellees is shown without controversy. This plan was carried out with reference to every lot in block 46 and 47, except lot 6 in block 46, the title to which still remained in Cohen. The restrictions affected every lot in these blocks fronting on Montrose boulevard. The only lots that had been sold where no restriction was shown or where the restrictions were somewhat different from those in the deeds of appellant and appel-lees were in the north part of block 5 and in blocks 7 and 14. All of these lots were separated some distance from blocks 46 and 47.

We have considered all other points raised by appellant, and find them to be without merit. The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    VALLEY INTERNATIONAL PROPERTIES, INC., Appellant, v. LOS CAMPEONES, INC., Appellee.
    No. 1300.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 15, 1978.
    Rehearing Denied June 26, 1978.

      Joel W. Ellis, Carter & Ellis, Harlingen, Rhett G. Campbell, Houston, for appellant.
    Joel W. Cook, Schlanger, Cook, Cohn & Mills, Richard L. Fuqua, Haines, Cowgill, Andell & Fuqua, Houston, for appellee.
   OPINION

YOUNG, Justice.

Los Campeones, Inc. filed a petition on July 25,1977, in the district court of Cameron County seeking relief under Tex.Bus. Corp.Act Ann. art. 2.24 B (Supp.1978) which provides for a court of competent jurisdiction to summarily compel an annual shareholders’ meeting upon application of any shareholder where no annual meeting has been held within the prior thirteen months. Valley International Properties, Inc., was named in the petition as defendant. Los Campeones is the majority shareholder of V.I.P.

On that same day (July 25) the trial court granted an ex parte order ordering, among other things, the requested shareholders’ meeting to be held on September 2. Then, on August 11 V.I.P. filed its answer which sought a hearing to set aside the July 25th order. The trial court set and conducted a hearing without a jury and thereafter, on September 7, rendered judgment, among other things, upholding its prior order and resetting the shareholders’ meeting for September 26. V.I.P. appeals from the September 26th order.

Appellant brings forward four points of error. In those points appellant contends:

1) that the trial court was without jurisdiction of this matter because V.I.P. was engaged in a Chapter XI, 11 U.S.C.A. § 701 et seq. (1970), Bankruptcy Proceeding at the time Los Campeones filed suit; 2) that Los Campeones could not compel a meeting because it was not a shareholder of record, because Los Campeones had a defective title to its V.I.P. shares in that it received its stock in a sale which violated the 1933 Securities Act, 15 U.S.C.A. §§ 77a et seq. (1971), because Brownsville Savings & Loan Association, the prior owner of the V.I.P. shares now held by Los Campeones, breached an agreement with V.I.P., and because Brownsville defrauded V.I.P. in certain loan agreements. V.I.P. also contends (3 and 4) that the trial court erred in excluding and admitting certain evidence.

Los Campeones asserts by cross-point and by motions to dismiss the appeal that this court has no jurisdiction of an appeal from a Tex.Bus.Corp.Act Ann. art. 2.24 B (Supp. Í978) proceeding. We overrule all of the contentions of the parties and affirm the judgment of the trial court.

The background of this case involves an embittered struggle between the management and stockholders of V.I.P. to gain managerial control. V.I.P. is a corporation owning various country club and golf course facilities in Cameron County, Texas. In order to finance the purchase and construction of its facilities and property, V.I.P. borrowed substantial amounts from Brownsville Savings at some time prior to 1973. Subsequently, on September 24,1973, Brownsville Savings in conjunction with Mutual Savings Association of Fort Worth and Abilene Savings Association issued a 3.9 million dollar permanent loan commitment to V.I.P. provided it performed certain conditions. The commitment was to be funded September 24, 1976. In December of 1974 V.I.P. shareholders pledged a majority of V.I.P.’s outstanding shares to Brownsville Savings in order to secure the previously mentioned loans.

Sometime in early 1976, it became apparent to V.I.P. and Brownsville Savings that V.I.P. would be unable to pay off its debts as they became due. As a result, the loans were renegotiated and extended. As a further means of insuring the continuing viability of V.I.P., Bill Bass, president of V.I.P., began organizing a limited partnership, Los Conquistadores, which would be used to inject 1.6 million dollars of additionally needed capital into the V.I.P. operations. By June of 1976, Los Conquistadores allegedly had raised $800,000 and still needed to raise an additional $800,000. Bass then purportedly presented the limited partnership idea to Brownsville Savings’ president, Thomas Pope, and other officers at a meeting on June 25,1976. During this meeting, the Brownsville officers stated that they wanted no part of the limited partnership but that they would consider other alternatives for helping Bass inject additional capital into the V.I.P. operations. These alternatives were presented to Brownsville Savings in a written memorandum on June 28, 1976. On July 1, 1976, Pope, on behalf of Brownsville Savings, responded to the memo by agreeing to release the V.I.P. stock in its possession in return for Bass’ agreeing to assign a $98,661.00 promissory note to Brownsville Savings. V.I.P. contends Brownsville Savings knew in July that without payment of the 3.9 million dollar commitment due on September 24, 1976, the limited partnership would be unable to secure the additional $800,000 required and thus would fail. But Robert Knowles an officer of Brownsville Savings in 1976, and later president, denied these allegations.

On September 24, 1976, Brownsville Savings refused to fund the 3.9 million dollar commitment because of the failure of V.I.P. to meet certain conditions in the loan commitment; i. e., failure to have the property free of liens and failure to issue a plat as required. The principals of Los Conquista-dores then refused to further fund the $800,000, and Bass was unable to secure the $98,661.00 promissory note which he was going to assign to Brownsville Savings in order to secure a release of the pledged V.I.P. stock.

In November of 1976, Bass informed Brownsville Savings that he could not make his payments on the prior debt, whereupon Brownsville Savings accelerated maturities of its outstanding loans to V.I.P. In addition, on November 9,1976, Brownsville Savings formed Los Campeones, Inc., appellee herein, for the purpose of taking over operations of V.I.P. Pat Stanford was hired as agent for Brownsville Savings to operate Los Campeones and the V.I.P. operations it was assuming. Los Campeones operated the golf course and country club facilities during parts of November and December of 1976.

On December 7, 1976, V.I.P. filed for Chapter XI Bankruptcy. The Federal Bankruptcy Judge then appointed a receiver for V.I.P. In March of 1977, V.I.P.’s unsecured creditors voted on and approved the arrangement plan submitted by V.I.P., and on May 10,1977, the Bankruptcy Judge entered an order confirming the plan. Subsequently, on May 18, 1977, the Bankruptcy Judge entered an order allowing Brownsville Savings to foreclose on the V.I.P.’s shares in its possession. On June 6, 1977, Pat Stanford’s employment with Brownsville Savings terminated. On June 7, 1977, Sanford, representing Los Campeones, purchased all of the V.I.P. shares possessed by Brownsville Savings at a public foreclosure sale.

All of which brings us to a consideration of the merits of this appeal. No findings of fact and conclusions of law were filed nor were any requested. Appellant has brought forward a statement of facts and therefore we must presume that the trial judge found every fact necessary to sustain the judgment, provided such facts are raised by the pleadings and are supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Texas Construction Associates, Inc. v. Balli, 558 S.W.2d 513 (Tex.Civ.App. — Corpus Christi 1977, no writ).

Appellant’s first point of error asserts that the district court lacked subject matter jurisdiction to enter an order compelling an annual shareholders’ meeting under Tex. Bus.Corp.Act Ann. art. 2.24 B (Supp.1978) in that the article is unconstitutional as applied to appellant because the Federal Bankruptcy Court had exclusive and paramount jurisdiction over the appellant’s cooperative affairs and because Rule 11-44 (U.S.C.A. Bankruptcy Rules, 1975, pamphlet edition) stayed state court proceedings against appellant.

An overview of the jurisdictional provisions of Chapter XI is set forth in In re Breinig, 40 F.Supp. 29 (E.D.Penn.1941). Generally speaking under Chapter XI, the Bankruptcy Court has exclusive jurisdiction of the debtor and his property, wherever located. Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 511 (1970) contains substantially the same provision. In re Bettinger Corporation, 197 F.Supp. 273 (D.Mass.1961). The Bankruptcy Court does not have jurisdiction, though, over all suits brought against the Chapter XI debtor. 8 Collier on Bankruptcy ¶ 3.01[2] (14th ed. 1974), Evarts v. Eloy Gin Corp., 204 F.2d 712,716 (9th Cir. 1953), cert. denied, 346 U.S. 876, 74 S.Ct. 129, 98 L.Ed. 384 (1953), See In re Prudence Bonds Corporation, 75 F.2d 262 (2nd Cir. 1935).

Much of the precedent which we find relevant to the scope of the Bankruptcy Court’s jurisdiction over suits to compel shareholder meetings is found not only in cases dealing with the jurisdiction of Chapter XI proceedings but also in Chapter X, 11 U.S.C.A. §§ 501 et seq. (1970), reorganization cases. Chapter X and Chapter XI represent the two corporate rehabilitation provisions of the Bankruptcy Act. Securities and Exchange Commission v. American Trailer Rentals Co., 379 U.S. 594, 85 S.Ct. 513, 13 L.Ed.2d 510 (1965); In re Texas Consumer Finance Corp., 480 F.2d 1261 (5th Cir. 1973). A more detailed explanation of the background and interrelationship of Chapters X and XI can be found in American Trailer, supra, and Texas Consumer Finance, supra.

In that regard, a Chapter X reorganization provides for extensive jurisdictional and judicial control over the proceedings and administration of a corporation, while a Chapter XI arrangement is intended to provide a quick efficient method of implementing a composition among the debtor’s general creditors with minimal court involvement. American Trailer, supra, T-Anchor Corp. v. Travarillo Associates, 529 S.W.2d 622 (Tex.Civ.App. — Amarillo 1975, no writ). Moreover, Breinieg, supra, points out that certain provisions of Chapters I — VII, 11 U.S.C.A. §§ 1 et seq. (1966) are also applicable to the jurisdiction of a Chapter XI case. 8 Collier on Bankruptcy ¶ 3.10, 3.11 (14th ed. 1974). The jurisdiction of a Chapter XI Bankruptcy Court is somewhat broader, however, than that under Chapters I-VII. Pocono Racing Management Association, Inc. v. Banks, 434 F.Supp. 507, 509 (M.D.Pa.1977); 1 Preferred Surfacing, Inc. v. Gwinnett Bank & Trust Co., 400 F.Supp. 280 (N.D.Ga.1975); 8 Collier on Bankruptcy ¶ 3.01 (14th ed. 1974).

Appellant contends in its brief that pend-ency of an arrangement proceeding precludes a state court from adjudicating any matter which might touch upon affairs of the corporate debtor without first obtaining the approval of the Bankruptcy Court. In sum, appellant argues that the instant suit to compel a shareholder’s meeting is tantamount to a suit to oust current management, and that the potential result would indeed interfere with the arrangement debtors’ affairs and the Bankruptcy Court’s jurisdiction. We do not agree with this conclusion.

The mere pendency of a Chapter XI proceeding does not divest a state court of jurisdiction. Fitch v. Jones, 441 S.W.2d 187, 188 (Tex.Sup.1969). A state claim must interfere with the jurisdiction of the Bankruptcy Court in order to preclude a state court’s jurisdiction. In re Wisconsin Cent. By. Co., 94 F.Supp. 165, 167 (D.Minn.1950). See International Shoe Co. v. Pinkus, 278 U.S. 261, 49 S.Ct. 108, 73 L.Ed. 318 (1929); In re Bush Terminal Co., 78 F.2d 662, 665 (2nd Cir. 1935), Cert. denied 299 U.S. 596, 57 S.Ct. 189, 81 L.Ed. 440 (1936); Northeastern Real Estate Securities Corporation v. Goldstein, 276 N.Y. 64, 11 N.E.2d 354 (1937), (cited with approval in Fitch, supra); 8 C.J.S. Bankruptcy § 143 (1962). Compare 6 Collier on Bankruptcy ¶3.09 n. 18 (14th ed. 1977).

The Bankruptcy Court has no jurisdiction over the meetings of stockholders of the debtor. In re J. P. Linahan, Inc., Ill F.2d 590 (2nd Cir. 1940); In re Wisconsin Cent. Ry. Co., supra; see also Taylor v. Philadelphia & Reading R. Co., 7 F. 381 (C.C.E.D.Pa.1881). A Bankruptcy Court though, does have the power to enjoin a shareholders’ meeting which will interfere with the administration of the debtors’ estate. In re Public Service Holding Corp., 141 F.2d 425 (2nd Cir. 1944); Fitch, supra; 6 Collier on Bankruptcy ¶ 8.15 (14th ed. 1977). In the instant case, there is no evidence that the court-appointed receiver, or any other party, sought an injunction or order staying the holding of an annual shareholders’ meeting. Indeed, the Bankruptcy Judge signed an order approving the holding of a shareholders’ meeting. Furthermore, the mere fact that an election and possible installation of new directors might ultimately have had some indirect effect on the arrangement does not confer jurisdiction on the Bankruptcy Court. In re Bush Terminal Co., supra; In re New York and Worcester Express, Inc., 294 F.Supp. 1163 (S.D.N.Y.1968). Accordingly, we find the state court had jurisdiction of this matter.

Because we have concluded that the Bankruptcy Court did not have jurisdiction over this suit to compel a shareholders’ meeting, and because we construe the scope of Rule 11 — 44 to be in accord with the substantive provisions of Chapter XI, we find that the automatic rule 11 — 44 stay of the Chapter XI proceeding did not preclude the district court’s order. Mid-Jersey National Bank v. Fidelity-Mortgage Investors, 518 F.2d 640 (3rd Cir. 1975). See also Matter of Cuba Electric and Furniture Corporation, 430 F.Supp. 689 (D.Puerto Rico 1977); Preferred Surfacing, Inc. v. Gwinnett Bank & Trust Co., 400 F.Supp. 280, 284 (N.D.Ga.1975). Appellant’s first point is overruled.

Appellant’s second point first contends that the trial court erred in compelling an annual shareholder’s meeting under Article 2.24 B because Los Campeones failed to register its stock with V.I.P. in accordance with the requirements of Tex.Bus. & Comm.Code Ann. § 8.207(a) (1968) and in accordance with the corporate bylaws of V.I.P.

The current provisions of Article 2.24 B provide in pertinent part:

“. . . If the annual meeting is not held within any 13-month period, any court of competent jurisdiction in the county in which the principal office of the corporation is located may, on the application of any shareholder, summarily order a meeting to be held. . . .”

V.I.P. then directs us to Tex.Bus. & Comm.Code Ann. § 8.207(a) (1968), which provides in pertinent part:

“Prior to due present for registration of transfer of a security in registered form the issuer . . . may treat the registered owner as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner.”

Article III Section 1 of the V.I.P. bylaws contains a similar provision. Appellant, further asserts that the evidence is undisputed that Los Campeones failed to present its stock for registration to V.I.P. In effect, V.I.P. argues that if an issuer may treat an unregistered shareholder as having no power to exercise the rights and powers of an owner, then the court under Article 2.24 B must treat an unregistered shareholder as having no rights to seek an annual shareholders’ meeting. V.I.P. further argues that the accepted meaning of the term “shareholder” comports with Tex.Bus. & Comm.Code Ann. § 8.207(a) (1968) and actually means “shareholder of record,” citing Mead Corporation v. Commissioner of International Revenue, 116 F.2d 187, 191 (3rd Cir. 1940). We do not agree with these assertions for several reasons.

First, Section 8.207(a) deals only with the relationship between the issuer and the shareholder. It makes no provision for a court’s treating the unregistered shareholder in the same manner. Compare Gallup v. Caldwell, 120 F.2d 90, 94 (3rd Cir. 1941). Second, in an analogous situation, unregistered shareholders are said to have a protectable property interest which entitles them to sue on behalf of the corporation regardless of their lack of record status. In re Pittsburg & L. E. R. Co., Etc., 543 F.2d 1058 (3rd Cir. 1976); 13 Fletcher’s Cyclopedia of the Laws of Private Corporations §§ 5976, 5979 (1970), 12 Id. § 5507 (1971). Similarly, Los Campeones has a protectable property interest. Cooper v. Citizens Nat. Bank of Waco, 267 S.W.2d 848 (Tex.Civ. App. — Waco 1954, writ ref’d n. r. e.); Greenspun v. Greenspun, 194 S.W.2d 134 (Tex.Civ.App. — Fort Worth), aff’d 145 Tex. 374,198 S.W.2d 82 (1946). And it should be able to protect that interest by demanding an annual shareholders’ meeting regardless of its ability or desire to vote. Third, in Mead Corporation v. Commissioner of Internal Revenue, 116 F.2d 187 (3rd Cir. 1940), cited by appellant for the proposition that “shareholder” means shareholder of record, the term “shareholder” there defined was derived from a specific tax law provision rather than from common usage. The plain meaning of the term “shareholder” is one who owns a share of corporate stock. Applications of Friedman, 184 Mise. 639, 54 N.Y.S.2d 45 (1945). Fourth, it is fundamental that a statute should be construed as a whole, and that all of its parts be harmonized if possible. Trawalter v. Schaefer, 142 Tex. 521,179 S.W.2d 765 (1944); Turullols v. San Felipe Country Club, 458 S.W.2d 206 (Tex.Civ.App. — San Antonio 1970, writ ref’d n. r. e.). Every word or phrase is presumed to have been used intentionally, with a meaning and purpose. Robertson v. State, 406 S.W.2d 90 (Tex.Civ.App. — Fort Worth 1966, writ ref’d n. r. e.).

In looking at the entire Business Corporation Act we find that if the Legislature had intended the word “shareholder” in Article 2.24 B to mean “shareholder of record,” it would have provided that the shareholder be one “of record” as it did in Article 2.25. 53 Tex.Jur.2d, Statutes §§ 160,181 (1964). See HFG Co. v. Pioneer Pub. Co., 162 F.2d 536, 540 (7th Cir. 1947). Finally, this Court’s interpretation of the word “shareholder” comports with the purpose of the registration requirement. The requirement that shares be registered is intended for the protection of the corporation so that it may know who is entitled to vote, receive dividends, and otherwise participate in other managerial functions. 12 Fletcher Cyclopedia of Law of Private Corporations § 5489 (1971). See also Kerr v. Tyler Guaranty State Bank, 283 S.W. 601 (Tex.Civ.App. — Austin 1926, no writ). Under Article 2.24 B, however, the court intervenes to determine the status of a purported shareholder, and the protections provided by a registration requirement are not necessary.

Further in its second point V.I.P. asserts that the trial court erred in ordering the meeting under Article 2.24 B because Los Campeones possessed a defective title to the shares; i. e., that it was not a legitimate shareholder because: 1) the foreclosure sale violated § 5 of the Securities Act of 1933,15 U.S.C.A. § 77e (1971); 2) the evidence shows Brownsville Savings breached its agreement to release the pledged shares to their rightful owners; and 3) Brownsville Savings and Los Campeones engaged in a scheme and artifice whereby they fraudulently obtained the V.I.P. shares.

About the general contention that Los Campeones possessed a defective title to its shares, we need not consider the merits of this point of error because no pleadings were presented to the trial court concerning this defense nor was the matter brought to the court’s attention when setting out the issues before the court for decision. See State of California Department of Mental Hygiene v. Bank of the Southwest National Association, 163 Tex. 314, 354 S.W.2d 576 (1962); Smith v. Davis, 453 S.W.2d 340 (Tex.Civ.App. — Fort Worth 1970, writ ref’d n. r. e.); Blackmon v. Stanley, 265 S.W.2d 695 (Tex.Civ.App. — East-land 1954, no writ); 3 Tex.Jur.2d Rev. Appeal & Error § 98 (1974).

There are additional reasons why we must overrule this phase of the second point. V.I.P.’s contention that the foreclosure sale violated the 1933 Securities Act was never pled nor presented to the trial court; indeed, at trial defense counsel denied that the legality of the foreclosure was in issue.

As to V.I.P.’s assertion that Brownsville Savings breached its agreement to release the V.I.P. shares, even considering this contention on its merits, we find there is sufficient evidence to support the trial judge’s implied finding that there was no breach of contract in that Bass did not meet all the conditions required for Brownsville Savings to release the pledged shares. Relative to the assertion by V.I.P. of fraud, that defense as used in this case is an affirmative defense. Tex.R.Civ.P. 94. Here the defense was waived by V.I.P.’s failure to plead it or have it acted on by the trial court. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829 (Tex.Sup.1967); Parliament Insurance Company v. L.B. Foster Co., 533 S.W.2d 43, 50 (Tex.Civ.App.— Corpus Christi 1975, writ ref’d n. r. e.). Furthermore, even if V.I.P. had properly plead and preserved this contention, we find there was sufficient evidence to support the court’s implied conclusion that V.I.P. did not meet its burden in proving that Brownsville Savings defrauded V.I.P. Appellant’s second point is overruled.

In V.I.P.’s third point it alleges that the trial court erred in refusing to permit V.I.P.’s counsel to review court exhibits 1 through 4, 6 and 7, and in refusing to admit exhibits 1 and 4 into evidence. Pursuant to a subpoena duces tecum Robert Knowles was ordered to deliver to the court Brownsville Savings’ correspondence file relevant to Los Campeones. The Court reviewed seven documents and admitted court exhibit number 5 into evidence. The rest were considered privileged information and V.I.P.’s counsel was not permitted to review them. The privilege was claimed under Tex.Rev.Civ.Stat.Ann. art. 852a § 3.07 (1964), which provides in pertinent part:

“The books and records pertaining to the accounts and loans of members shall be kept confidential by the Commissioner, his examiners and representatives, except when disclosure thereof shall be compelled by a court of competent jurisdiction, and no member or other person shall have access to the books and records . except upon express action and authority of the board of directors.”

V.I.P. submits that the language of Section 3.07 quoted above does not apply to correspondence, but only to books and records of a more formal nature. We disagree. Sections 3.07 also provides:

“Every member shall have the right to inspect such books and records of an association as pertain to his loan, Permanent Reserves Funds Stock or savings Account.”

In construing statutes every word or phrase is presumed to have been used intentionally, with a meaning and purpose. Robertson, supra. We do not think the Legislature intended to eliminate correspondence from the phrase “books and records”, and thereby prevent members from inspecting their own correspondence.

V.I.P. also asserts that Section 3.07 does not apply to litigants of a formal lawsuit but is meant to apply to the “Commissioner, his examiners and representatives”. The clear language of the statute refutes this contention in stating “no member or other person shall have access to the books and records . . . ”

V.I.P. further maintains that Section 3.07 provides that a court of competent jurisdiction may order disclosure of the correspondence herein, and that the subpoena duces tecum was tantamount to such an order. Rule 167, T.R.C.P., pertaining to the production of documents, provides a party shall only produce such documents as are “not privileged”. We hold that these documents were privileged and V.I.P.’s counsel did not have a right to view them.

V.I.P. also appears to complain that Section 3.07 does not preclude the admission into evidence of such undisclosed communications where they are material to the suit. A provision similar to Article 852a § 3.07; i. e., Article 1136a-9 (parts of which are now in Article 852a § 11.18), was interpreted to preclude the discoverability of certain reports in Falkner v. Gibraltar Savings Association, 348 S.W.2d 472 (Tex.Civ.App. — Austin 1961, writ ref’d n. r. e.). See also Benson v. San Antonio Savings Association, 374 S.W.2d 423 (Tex.Sup.1963). We agree with these decisions and find Section 3.07 confers a privilege upon which a trial court may exclude certain evidence. V.I.P.’s third point is overruled.

V.I.P. complains in its fourth point that the trial court erred in permitting the witness Knowles to testify, over objection, concerning Bill Bass’ statement about an audit report because such testimony was hearsay as to the report. We need not consider the merits of this contention in that without findings of fact and conclusions of law we presume the trial judge disregarded evidence which might have been improperly received. Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App. — Tyler 1964, writ ref’d n. r. e.). See also Yzaguirre v. State, 427 S.W.2d 687 (Tex.Civ.App. — Corpus Christi 1968, no writ); 4 Tex.Jur.2d Rev. Appeal & Error § 720 n. 17 (1974). V.I.P.’s fourth point is overruled.

Los Campeones by cross-point argues that the “summary” nature of an Article 2.24 B order makes it unappealable and final in the trial court and that consequently this Court is without jurisdiction to hear this appeal. We do not agree. The judgment rendered by the trial court on September 7, 1977, was a final judgment in that it disposed of all matters involved in the suit and determined the rights of all parties in the suit. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.Sup.1966); McHenry v. Shelton, 456 S.W.2d 194 (Tex.Civ.App. — San Antonio 1970, no writ). Consequently, Tex.Rev.Civ. Stat.Ann. art. 1819 (1964) confers jurisdiction on this Court for purposes of this appeal. The cross-point and motions to dismiss the appeal contentions of Los Cam-peones are overruled.

The judgment of the trial court is affirmed.


author: PEDEN, Justice.

text:
    Ex parte Robert E. LEE.
    No. 17197.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 15, 1978.
    Rehearing Granted July 13, 1978.

      James M. Beauchamp, Houston, for appellant.
    Roger B. Williams, Houston, for appellee.
   PEDEN, Justice.

Robert E. Lee filed this application for writ of habeas corpus seeking release from a commitment for failure to make child support payments. A judgment signed on March 29,1978 provided that he be confined for five days and thereafter until he paid, through the county support section, the ar-rearage of $825 plus an attorney’s fee of $370 and costs, but enforcement of the order was suspended on condition that he pay $500 on the arrearage, pay the attorney’s fee and costs by April 15, and appear before the court at 9 A.M. on April 17, 1978. After a hearing on April 17, the trial judge ordered the relator committed. He contends that the pleading filed by his wife will not support the court’s action, that no evidence was produced at the commitment hearing, and that the commitment order does not require that he be confined to jail for more than five days. We order the relator released after he has served the five-day sentence.

The pleading filed by Mrs. Lee was a sworn “Statement of Claimant for Child Support under Rule 308-A.” In it she stated that she was filing it under Rule 308 — A, quoted at length the support provision of the trial court’s previous order and further alleged that:

II.
“Robert E. Lee, Respondent, who is the person ordered to make the payments described above, has willfully disobeyed the order by failing to make the following payments as ordered.
“Respondent was ordered to pay the sum of $150.00 per month in child support from October 1,1977, until further Order of the Court. During that period, Respondent paid nothing and is in arrearage $525.00 as of January 1, 1978. Respondent has willfully disobeyed the order of this Court.
III.
“The children for whom the payments were ordered have not reached the age of 18 years, and the order referred to above has not been in any way altered, changed, or amended.”

Relator’s first contention is that the complaint filed by Mrs. Lee merely states facts to the court for the purpose of having an attorney appointed, does not ask the court to do anything, and will not support the court’s actions.

Rule 308-A of Texas Rules of Civil Procedure states:

“In cases where the court has ordered periodical payments for the support of a child or children, as provided in the statutes relating to divorce, and it is claimed that such order has been disobeyed, the person claiming that such disobedience has occurred shall make same known to the judge of the court ordering such payments. Such judge may thereupon appoint a member of the bar of his court to advise with and represent said claimant. It shall be the duty of said attorney, if he shall in good faith believe that said order has been contemptuously disobeyed, to file with the clerk of said court a written statement, verified by the affidavit of said claimant, describing such claimed disobedience ... No further written pleadings shall be required . . . ”

Counsel for Mrs. Lee concedes that it would have been better to have prayed for specific relief, but, 'the rule simply requires a written statement verified by the claimant’s affidavit describing the claimed disobedience and it specifically states that no further written pleadings are required. Relator appeared in response to an order to appear and show cause why he should not be held in contempt for willfully disobeying the court’s order as shown in Mrs. Lee’s statement. He has not shown that he was denied due process or otherwise prejudiced by a failure to receive more complete notification of the subject matter of the cause, nor has he shown that Mrs. Lee’s statement was in any way inadequate. See Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969).

The relator next contends that the commitment was illegal because at the hearing on April 17 “there was no evidence produced nor a hearing held to hear evidence to determine whether he had failed to comply with the order ... of March 21,1978

Where one has been found in contempt for violation of a court order but his punishment has been suspended on condition of compliance, the court must afford him a subsequent hearing to determine breach of the condition and must issue an unconditional order of commitment. Ex parte Sauser, 554 S.W.2d 239 (Tex.Civ.App.1977, no writ); Ex parte Hart, 520 S.W.2d 952 (Tex.Civ.App.1975, no writ). In both of those cases the requirements of due process had presumably been met at the time of the original order but the relator’s punishment was conditioned on further acts of default, and the order apparently contemplated that on default of the specified conditions an arrest warrant would be issued without further notice to the relator. Such procedure was held improper.

The relator in our case was afforded a subsequent hearing on April 17 to determine whether he had breached the March 21 order. He appeared in person at the April 17 hearing and his counsel stated that their contention was that Mrs. Lee’s pleading did not raise the contempt issue. Hon. Herman Mead, presiding in the absence of Hon. John W. Peavy, Jr., declined to consider changing the presumed prior ruling that Mrs. Lee’s pleading was sufficient. Mr. Williams, counsel for Mrs. Lee, then said the respondent had been ordered to appear (on April 17) to show compliance with the court’s order or be sentenced to jail.

“Mr. Williams: That’s what is before the Court. The payment is not made.
“The Court: Haven’t made any. $500.
“Mr. Beauchamp: Our contention is the court’s order of March 21 is not a valid, enforceable order.”

The relator did not deny that he had failed to comply with the March 21 order, did not offer any explanation or excuse and was not denied an opportunity to do so. The only defensive position he took was that the contempt judgment of March 21 was invalid because Mrs. Lee’s petition was inadequate. We hold that the relator was not denied due process as to the subsequent hearing.

Finally, the relator argues that he is entitled to be released after serving five days because the April 17 commitment states that his punishment is fixed at five days in jail, not five days and until he has paid the $825 arrearage (plus costs and an attorney’s fee) as the order entered on March 29 tentatively provided. The pertinent provisions in the commitment stated:

“AND IT APPEARING to the Court that Robert E. Lee has been duly cited; and the Court after having heard all of the evidence and arguments offered in this matter, is of the opinion and so finds that the said Robert E. Lee is guilty of contempt of this Court in that he has failed and refused to pay child support as heretofore ordered in an amount of $825.00.
“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED by the Court that the said Robert E. Lee be and is hereby found guilty of contempt of Court by reason of his failure and refusal to make the payments of child support heretofore ordered in an amount of $825.00 in defiance of the terms of the decree hereinabove referred to and his punishment for such contempt is here fixed at confinement in county jail of Harris County, Texas, for a period of 5 days and Costs of Court accrued herein in the amount of 59.00 & atty fees 370.00 Dollars at which time said Robert E. Lee shall be released from custody. All other cost adjudged against Relator.”

It appears that no judgment of contempt was signed after the April 17 hearing, only the commitment order. We agree with the relator that the commitment does not contain a coercive provision.

Where a court confines a party for contempt until he obeys an order he has been found to have disobeyed, “the order should clearly state in what respect the court’s order has been violated and that the party is committed to jail until the court’s order is complied with to the extent required by the court.” Ex parte Proctor, 398 S.W.2d 917 (Tex.1966).

The relator was released on bond, prior to serving all of his five-day sentence, pending the decision of this court. He is ordered returned to confinement until he has served the remainder of his five-day sentence and is ordered then released.

On Motion for Rehearing

The relator’s motion for rehearing is granted. He has now demonstrated that he has already served his five-day sentence.

Our opinion dated June 15, 1978 is amended to provide that the relator is ordered discharged.


text:
    NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Ginger GLENN, Appellee.
    No. 17983.
    Court of Civil Appeals of Texas, Fort Worth.
    June 15, 1978.
    Rehearing Denied July 20, 1978.
    Atwell, Cain & Davenport and Mark T. Davenport, Dallas, for appellant.
    Robert L. Ivy, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Defendant Northwestern National Life Insurance Company has appealed from an adverse judgment in favor of plaintiff Ginger Glenn for benefits under a group health and accident policy upon the employees of United Flooring Industries, Inc. and upon the dependents of such employees.

We reverse and render.

Ginger Glenn was a dependent of an employee of United Flooring at a time when the policy was in effect for the period of one year ending October 2, 1973. After such termination date the policy was not renewed because United Flooring was not, on and after such time, the employer of a sufficient number of persons to entitle it to renew.

On March 23, 1973, while such policy was in force, there occurred an automobile collision- unrelated to any activity of United Flooring. Ginger Glenn was injured in and as the result of such collision, she was rendered totally disabled. Her disability continued at all material times. From the date of her injuries medical and hospital expenses were begun to be incurred. These expenses were continuous, not only to date of October 2, 1973, but to January 2, 1974, and thereafter for an extended period.

By policy provisions the coverage afforded by the insurance policy continued as applied to medical and hospital expenses of Ginger Glenn to January 2, 1974. The insurance company admitted liability therefor. It denied liability for expenses because of services rendered in her care thereafter, though made necessary by reason of her injured condition.

To be observed is that at no time prior to January 2,1974 did Ginger Glenn or anyone for her contract with doctors or hospitals, in exchange for some amount paid or to be paid, for her treatment or care after January 2nd. In other words, it is apparent that as each occasion might thereafter arise whereby there was some treatment or hospitalization made necessary by her condition Ginger Glenn would then contract therefor.

The January 2, 1974 date, exactly three months after the policy termination date of October 2,1973, is important because of the policy provisions (abbreviated) hereinafter set out:

TERMINATION OF DEPENDENTS’ INSURANCE:
The Dependents’ Insurance of an Insured shall terminate on the earliest of the following dates:
(b) Termination of the Policy or the Dependents’ Insurance portion of the Policy, .
EXTENSION IN EVENT OF TOTAL DISABILITY: An extension of insurance will be granted to an Insured or insured Dependent who is totally disabled on the date his Basie Health Insurance and Major Medical Insurance terminates. . The insurance with respect to such . will remain in force, without payment of premiums, with respect to the sickness or accidental injury causing the total disability. This extension of insurance will continue until (a) cessation of the total disability, or (b) 3 months after the date his Basic Health Insurance and Major Medical Insurance otherwise terminates, whichever first occurs. (Emphasis supplied.)

The clear and unambiguous provisions of the policy — disregarding the fact that it is a volume of coverages, exclusions and definitions, requiring hours of study and analysis even by one schooled to determine its full import — is that Ginger Glenn was insured as applied to medical and hospital expenses from time she was injured while the policy was in effect to date of January 2,1974, the termination date of the insurance afforded as applied to expenses made necessary because of her injuries in the collision of March 23, 1973.

The trial court expressly stated that judgment was rendered for Ginger Glenn because of the “n. r. e.” stamp of the supreme court upon the opinion of the Amarillo court of civil appeals in the case of Maryland Casualty Company v. Thomas, 289 S.W.2d 652 (Tex.Civ.App. — Amarillo 1965, writ ref’d n. r. e.). We find ourselves in accord with the decision in that case because there had been a contract made prior to the termination date of insurance for the services to be rendered to the injured insured after that termination. There it appears that dental work was necessary in the treatment for injuries sustained while an insurance policy was in effect and there was a price contracted for them as a completed contract or “turn-key job.” A part of the dental work had already been performed by the policy termination. This fact was observed in Czarnecki v. American Indemnity Company, 259 N.C. 718, 131 S.E.2d 347 (Supreme Court of North Carolina), a case in which there was refusal to find that date expenses were contracted would relate back and be considered as incurred on the date of the event by reason of which they were made necessary.

We do not find ourselves in agreement with that part of the Maryland Casualty Company v. Thomas, supra, opinion in which there was the holding that medical expenses were “incurred” as of the date of an injury which occasioned necessary services thereafter, rendered in attending or correcting the injuries sustained.

It is interesting that at least one insurance company, obviously conscious of the holding of the Amarillo court, caused its policies to provide that “a charge is considered to be incurred on the date of the service or purchase for which the charge is made.” See Prudential Insurance Company of America v. Beall, 454 S.W.2d 478 (Tex.Civ.App. — Eastland 1970, writ ref’d n. r. e.).

To hold, as we do, that the expenses at issue in the instant case were not expenses covered by the policy is to adhere to a prior opinion and judgment of this court deciding, as applied to a policy providing coverage for similar expenses incurred within one year from the date of an accident, that there was the exclusion of liability for expenses thereafter arising. See Marroquin v. Trinity Universal Insurance Co., 394 S.W.2d 246 (Tex.Civ.App. — Fort Worth 1965, no writ).

We hold that Ginger Glenn’s expenses for medical and hospital care not having been contracted by her to be paid antecedent to the date coverage of the insurance policy ceased as applied to her, did not constitute expenses “incurred” while the policy was in force; that by the terms of the policy contract they were not expenses as to which she had insurance protection.

The student is directed to 75 A.L.R.2d 876, Annotation: “Insurer’s liability under accident policy which terminated after accidental injury but prior to completion of medical treatment, hospitalization, and the like.”

The trial court’s judgment is reversed; judgment is here rendered that plaintiff Ginger Glenn take nothing by her suit against defendant Northwestern National Life Insurance Company.


author: REYNOLDS, Justice.

text:
    Ronie BURELSMITH, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 8912.
    Court of Civil Appeals of Texas, Amarillo.
    June 19, 1978.

      Edwards & Associates, Thomas Giovan-nitti, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellee.
   REYNOLDS, Justice.

Ronie Burelsmith, an injured worker adjudged to have sustained limited total and partial incapacity, seeks to reverse the judgment on the theory that the evidence establishes a greater incapacity. The state of the evidence does not justify the rejection of the jury’s findings. Affirmed.

Burelsmith, a welder, sustained an accidental injury during the course of his employment on 31 May 1975. He sought to establish that his injury rendered him unable to obtain and retain employment doing the usual tasks of a workman. The jury found that Burelsmith suffered total incapacity from 31 May 1975 until 4 August 1975, and that the injury was a producing cause of partial incapacity beginning 5 August 1975 and ending 7 December 1976. Judgment followed.

Burelsmith has appealed. The thrust of his seven points of error is that the jury’s answers to the incapacity issues are so against the great weight and preponderance of the evidence as to show bias and prejudice on the part of the jury. This compels a review of all of the evidence which, unless otherwise indicated, is taken from Burelsmith’s account of the events.

Burelsmith suffered a sharp pain beneath his left shoulder blade and in his back when he lifted a ten-pound chain with his left hand. Transported on a stretcher to a hospital emergency room, he was given medication and X-rayed. Advised by Dr. Wo-olam that he had sprained his back and extended the option of being admitted to the hospital or going home, Burelsmith opted to go home.

The following week, Burelsmith saw Dr. Woolam, who told him that he could go back to work. Burelsmith returned to work, but on the second day he “got very nervous, . . . went all to pieces,” and returned to Dr. Woolam. The doctor referred him to Dr. Scholz.

After staying home for about a month, Burelsmith saw Dr. Scholz. Dr. Scholz’s examination revealed “subjective pain and tenderness in the mid-portion of the dorsal spine.” Burelsmith was told that some muscles were pulled loose and he was put on therapy for one month. Afterwards, Dr. Scholz, informing Burelsmith to expect some pain and discomfort and reporting that he did not expect any permanent disability, told Burelsmith that he could go back to work. Burelsmith returned to his same job on 4 August 1975.

Thereafter, Dr. Scholz received Dr. Dunn’s 14 November 1975 report that Bu-relsmith’s X-rays were normal and gave no clue that he needed a myelogram. Dr. Scholz then wrote that this represents, as he previously found, “a myofascitis of the dorsal spine or an inflammation problem, probably from trauma, in the muscles, but no involvement of the disc spaces, etc. These problems sometimes are difficult to render asymptomatic. However, anti-inflammatory medications usually takes care of this problem quite well.”

Burelsmith did not miss any time from work because of the injury from 4 August 1975 until November of 1976 when he went to see Dr. Scholz for, in his words, “a checkup.” At that time, Dr. Scholz noted in his records:

November 16,1976: Patient states that he is still working, but aching all over. Cool weather seems to have worsened his symptoms. He is aching in the joints. Could not take Butalozodine because it made his nose bleed. Patient has gone to out patient therapy but has not improved symptoms. Will admit to hospital for PS, traction, TONS, back brace, possible mye-logram. Admit 11-17-76.

Burelsmith was hospitalized from 17 November 1976 until 4 December 1976. Upon Burelsmith’s dismissal, Dr. Scholz recorded:

Lumbosacral strain and sprain, L5 nerve root irritation secondary to muscu-loskeletal reaction.
Left shoulder strain and sprain, incomplete rotator cuff tear.
Bicepital eenosynovitis long head of biceps brachi.
This 38 year old Caucasian male was referred by Dr. Woolam for an orthopedic evaluation and treatment of injuries, sustained while working on 31 May, 1975. The patient had not responded to out patient regimen. The patient’s symptoms were in the low back and in the left shoulder. The symptoms following injuries seemed to be worse with weather changes and increasing activity such as working in an overhead position or heavy lifting caused considerable pain in the left shoulder as well as in the low back area and into the hip and leg area in the distribution of minimal sciatic nerve compression. The patient during this admission was treated with traction, physical therapy, heat, massage, exercises, low back, transcutaneous nerve stimulator, plus progressive exercise regimen to the left shoulder. The symptoms in the left shoulder worked out very nicely as they did in the low back. The patient was elated over the results of his conservative inpatient response. ... it seemed to be in result of his injuries. There is no other history of injury or aggravation elicited from the patient. His response was such that he is being allowed to return back to full gainful employment on 12-7-76. Extra heavy lifting and excessive climbing of stairs will be limited for some three months. He has been dismissed from my care and instructed to recheck back in the office for return appointments in the future if they become necessary.

Burelsmith returned to work on 7 December 1976. He neither has been back to see Dr. Scholz nor has seen any other doctor. He did not miss any time from work thereafter up to the time of trial in July of 1977. His rate of pay was never reduced because of any incapacity to perform, and he has received the pay rate increases since the time of his injury.

Burelsmith testified that since his injury, he could not do his job as he could before. He had considerable pain in his left arm and leg, and his arm still goes to sleep. He has considerable problems with lifting, climbing, stooping, bending and any physical exercise. He wears a prescribed back brace without which, together with enduring the pain and some home remedies, he could not get and keep his job. He is, in his opinion, getting worse.

Burelsmith’s wife of eighteen years confirmed his complaints of pain. She testified that since he discontinued his medication, his condition is worse.

Mickey Coleman, a foreman with Burel-smith’s employer, testified that Burelsmith is an above average employee and does very good work. He had no complaints about Burelsmith’s work. He assumed that if Bu-relsmith was returned to work with a limitation on climbing and excessive lifting that he would not have been put in his department.

Highlighting the aspects of the summarized evidence favorable to him, Burel-smith concludes that this evidence shows clearly that he cannot get and keep employment and, particularly, that he was totally incapacitated while hospitalized from 17 November to 4 December 1976, during which time he could not, as a matter of law, be partially incapacitated. The fact that the jury might have arrived at the conclusions Burelsmith advocates does not justify the setting aside of different factual determinations which the jury concluded were the most reasonable if those determinations are supported by the evidence. Holly Sugar Company of Hereford v. Aguirre, 487 S.W.2d 421, 425 (Tex.Civ.App. — Amarillo 1972, writ ref’d n. r. e.).

Burelsmith had the burden to persuade the jury by a preponderance of the evidence that he was incapacitated to the degree alleged. As an interested party, his testimony merely created fact issues for the jury’s resolution. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758, 760 (Tex.Civ.App. — Amarillo 1973, no writ). It was the province of the jury to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve the conflicts and inconsistencies. To this end, the jury was privileged to believe all or part or none of the testimony of any one witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App. — Amarillo 1977, writ ref’d n. r. e.).

Applying these principles, it cannot be said that the jury was compelled to find that Burelsmith was totally incapacitated during his November-December 1976 hospitalization. Hospitalization itself does not establish any incapacity. Cf. Garcia v. Aetna Casualty & Surety Company, 542 S.W.2d 477, 479 (Tex.Civ.App. — Tyler 1976, no writ), where it was held that hospitalization for medical examinations and tests does not prove either total or partial incapacity.

The mere fact that he was hospitalized did not relieve Burelsmith of his burden to produce proof of incapacity. The jury had for its consideration the evidence that when Burelsmith went for a checkup, he was admitted to the hospital. The admission, as Dr. Scholz’s records manifest, was not necessitated by any objective medical finding; rather, the basis for admission was that Burelsmith’s symptoms had not responded to out patient treatment. The only symptoms were Burelsmith’s expressions of pain, the same symptoms he expressed both before and after the hospitalization.

Thus, any incapacity during the hospitalization, as well as during any other period, is necessarily predicated upon Burel-smith’s testimony, the weight of which hinges upon his credibility as judged by the jury. In judging his credibility and, hence, the weight to be given his testimony, the jury had the right to measure them in the light of the other testimony in the record. Burelsmith did testify to the facts which led to his opinion that he could not get and keep employment; yet, the jury had before it factual evidence to the contrary. The jury heard the testimony of Dr. Scholz’s 1975 expectation that Burelsmith would experience pain but no permanent disability; of Burelsmith’s ability to obtain and retain employment doing his usual tasks with no injury-related loss of pay while he claims total incapacity; of the more than satisfactory appraisal of Burelsmith’s work by his supervisor; and of Dr. Scholz’s 1976 dismissal of Burelsmith from his care and his release for full employment subject only to two short-term limitations which, outside of Burelsmith’s testimony, were now shown to limit his capacity to work. And, while not conclusive, the jury could consider that no treating doctor ascribed any incapacity to Burelsmith.

In resolving the conflicts and inconsistencies in the evidence by the answers it deemed the most reasonable, the jury was not persuaded to wholly accept Burelsmith’s account. The jury had this sole right, and we cannot say that the jury was wrong in exercising it. It follows that the determinations of incapacity made by the jury are not so against the great weight and preponderance of the evidence as to justify an invasion of their province to set aside the answers. Accordingly, Burelsmith’s points are overruled.

The judgment of the trial court is affirmed.