author: OSBORN, Justice.

text:
    Douglas Alfred MILLER, Appellant, v. Barbara Lynn MILLER, Appellee.
    No. 6785.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 22, 1978.
    Rehearing Denied Jan. 3, 1979.
    Ted Hollen, Austin, for appellant.
    Warren Burnett, Associated, Warren E. Burnett, W. Ruff Ahders, Odessa, for appel-lee.
   OPINION

OSBORN, Justice.

This is an appeal from an order sustaining a plea to the jurisdiction of the trial Court filed by an Arizona resident in a case involving a parent-child relationship. We affirm.

The marriage between these parties was terminated by a divorce decree signed on March 2, 1977. That judgment named the Appellee, Barbara Lynn Miller, managing conservator of the parties’ two minor children, and named the Appellant, Douglas Alfred Miller, possessory conservator. Mr. Miller was given certain specified rights for access to and possession of the children, including one month each summer and on certain holidays. The decree recites that the “children presently reside with their mother in Chandler, Arizona.”

On June 15, 1978, Appellant filed a motion to modify custody, alleging material and substantial change in conditions since the entry of the divorce decree, and requested that he be named managing conservator, or in the alternative for certain increase of his visitation rights with the children. That sworn pleading alleged that Appellee “resides at 1263 West Oakland Street in Chandler, Arizona.” A show cause order was entered and Appellee was served by certified mail at her address in Chandler, Arizona. She filed a special appearance and motion to dismiss for lack of jurisdiction. Without having heard any evidence, the trial Court dismissed the case and held that the State of Arizona has exclusive jurisdiction.

The Appellant presents four points of error, all presenting the same basic issues that the trial Court erred in sustaining the plea to the jurisdiction because there is no evidence and insufficient evidence to support such holding.

The last session of the Legislature added Section 11.051, “Acquiring Jurisdiction Over Nonresident” to the Texas Family Code. It provides:

“In a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required or over the person’s personal representative, although the person is not a resident or domiciliary of this state, if:
(1) the child was conceived in this state and the person on whom service is required is a parent or an alleged or probable father of the child;
(2) the child resides in this state, as defined by Section 11.04 of this code, as a result of the acts or directives or with the approval of the person on whom service is required;
(3) the person on whom service is required has resided with the child in this state; or
(4)notwithstanding Subdivisions (1), (2), or (3) above, there is any basis consistent with the constitutions of this state or the United States for the exercise of the personal jurisdiction.”

In this case, Subdivision (3) is applicable to the Appellee since she, and the two children who were born in Texas, did at one time reside within this State.

The Appellee asserts that the case is controlled by the holding in Corliss v. Smith, 560 S.W.2d 166 (Tex.Civ.App.—Tyler 1977, no writ). Only one other case, Zeisler v. Zeisler, 553 S.W.2d 927 (Tex.Civ.App.—Dallas 1977, writ dism’d), has been decided on the basis of this new Statute. In that case, the appellate Court concluded that the trial Court did have jurisdiction over a nonresident father in a child support case.

But in the Corliss case, which involved a modification of visitation rights, the trial Court and appellate Court concluded that the Texas Courts had no jurisdiction over a mother who, with her children, had resided in Nebraska for a period of more than four years when the modification suit was filed. In that case, Justice Moore, in a well reasoned opinion, said:

“ * * * [I]n determining whether to assert jurisdiction, when the undisputed proof shows that the child and the managing conservator have resided in a foreign state for six months or more before the suit was filed, we think a presumption arises that the Texas courts no longer constitute convenient and/or competent forums to adjudicate claims affecting the parent-child relationship and have lesser interests in protecting the welfare of the child than the foreign state, and are consequently unwarranted in asserting jurisdiction in the absence of sufficient proof to overcome the presumption. * * * >>

In addition to the reasons for the rule as set forth in that opinion, also see the discussion by Professor Sampson, “Jurisdiction in Divorce and Conservatorship Suits,” 8 Tex. Tech.L.Rev. 159, 206, et seq. (1976); and “Long-Arm Jurisdiction,” 38 Tex.B.J. 1023, 1028 (1975).

We conclude that the holding in the Corliss case should be applied in this case. Our problem is that the trial Court in this case had no stipulation of facts as existed in the Corliss case, and it heard no evidence. One who asserts a lack of jurisdiction bears the burden to establish that contention. Scott v. Scott, 554 S.W.2d 274 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.).

In this case, the trial Court’s judgment recited residency of Mrs. Miller in Arizona at the time it was entered in March, 1977. The sworn motion to modify custody may be taken as an admission of her Arizona residency in June, 1978. But there is no proof about the period in between. Our Courts have consistently held that once a residence is shown by the evidence, and nothing is shown as to a change in residence thereafter, it will be presumed that it continued at the place where it was initially shown to be. Winningham v. Connor, 552 S.W.2d 579 (Tex.Civ.App.—Tyler 1977, no writ); Eastex Poultry Co. v. Benefield, 268 S.W.2d 270 (Tex.Civ.App.—Beaumont 1954, no writ); Deason v. Bryant, 263 S.W.2d 801 (Tex.Civ.App.—Beaumont 1953, no writ).

The Appellant having not gone forward with the evidence to overcome the presumption as to the continuation of the residency in Arizona, we conclude that the trial Court properly sustained the plea to the jurisdiction. The Appellant’s four points of error are overruled.

The order of dismissal is affirmed.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Oleta Gravitt DIXON, Individually and as Executrix of the Estate of T. O. Gravitt, and James H. Ashley, Appellees.
    No. 16025.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 29, 1978.
    Rehearing Denied Jan. 10, 1979.

      Hubert W. Green, Jack Hebdon, James E. Barden, San Antonio, Wayne E. Babler,' St. Louis, Dewey, Ballantine, Bushby, Palmer & Wood, New York City, for appellant.
    Pat Maloney, Jack Pasqual, San Antonio, for appellees.
   OPINION

MURRAY, Justice.

Appellees brought this suit against defendant for tortiously injuring two former Southwestern Bell management employees, James Ashley and T. 0. Gravitt. Appellees alleged that appellant conspired against them, defamed them orally and in writing, invaded their privacy and subjected them to economic duress, and that these acts were the cause of the wrongful death of T. 0. Gravitt.

The trial court entered judgment on the jury verdict in which the issues relating to the liability of the appellant for slander were answered favorably to appellees. The judgment awarded $500,000 to Oleta Grav-itt Dixon as actual damages for slander allegedly suffered by T. 0. Gravitt before his death, $500,000 damages for wrongful death allegedly caused by the slander, and $500,000 exemplary damages. James Ashley was awarded $1,000,000 actual damages for slander and $500,000 exemplary damages. Defendant’s motion non obstante ve-redicto and amended motion for new trial were overruled by the trial court. Defendant has duly perfected an appeal to this Court.

The statement of facts in this case contains over 5,000 pages and the following is what we believe to be a fair summary of the testimony pertaining to the cause of action for slander. In the summer of 1974, a secretary in the San Antonio security department of Southwestern Bell notified a security supervisor in the San Antonio office that she had heard about widespread sexual and financial irregularities occurring in the commercial department headed by James H. Ashley. She reported her belief that Ashley was promiscuous with a number of subordinate women employees and that Ashley and Mr. T. O. Gravitt, then Southwestern Bell’s vice president — Texas, had an interest in the printing firm of Quik Print to which they were directing Southwestern Bell’s business. These reports were eventually reported to Mr. G. A. Lar-kin, the head of the company’s security department. Larkin brought these reports to the attention of Southwestern Bell’s vice president — Operations, L. C. Bailey, but nothing was done. When the reports persisted during the summer of 1974, Bailey asked Larkin to have some discreet inquiries made about the reported improprieties. Larkin directed Edwin McKaskel, who was the Southwestern Bell security manager in Kansas City, Missouri, to go to San Antonio to carry out this task.

McKaskel began this inquiry by interviewing the secretary in the San Antonio security department of Southwestern Bell. She reported that numerous women who had had affairs with Ashley had been promoted. She also reported that Gravitt had taken her to an apartment rented by the owner of Quik Print, the Kansas City based printing firm. On this occasion, Gravitt asked her about her future in the company and then took her into the bedroom and asked her to “try the bed.” When she declined his advances, he attempted to fondle her bosom. McKaskel, following leads given by this secretary, interviewed other female employees who confirmed many of the allegations.

When Bailey learned the result of these inquiries, he conferred with other company officers, and they decided that an investigation was necessary to determine the facts. Before it began, Larkin, who personally directed the investigation, warned the investigators that measures should be taken to prevent embarrassment and he cautioned them about the need for confidentiality and discretion. Bailey informed C. L. Todd, Ashley’s immediate supervisor, of the planned investigation and directed Todd to suspend Ashley pending the outcome of the investigation.

Only employees of appellant were interviewed by investigators, and these employees were asked about their knowledge of any improprieties within the company. As leads developed, they were systematically followed. Each employee interviewed was told that the investigation was confidential and they were not to discuss the interview with anyone. The employees who were called as witnesses at the trial testified that their interview was discreetly conducted.

We believe that the information received as a result of the investigation would reasonably indicate to appellant that Ashley and Gravitt had been promiscuous with subordinate employees, that there was an apparent conflict of interest involving Quik Print, and that Ashley and Gravitt submitted false claims for reimbursements for purportedly business related expenditures.

Prior to and during the investigation, Ashley and Gravitt had been openly critical of appellant because of rate fixing, improper vouchering, kickbacks, and political contributions.

This summation of the evidence is only intended to make clear the questions which are considered and discussed in the opinion; it is not given as a full and accurate detailed statement of all the facts appearing in the record. We have, however, stated all the facts we regard as material to a proper understanding and disposition of the questions arising in this case.

The judgment in favor of Gravitt was based on findings of defamatory statements made by defendant, through its agent, concerning sexual promiscuity and conflict of interest with Quik Print. The judgment in favor of Ashley was based on findings of defamatory statements made by defendant, through its agent, concerning sexual promiscuity, false vouchering, and conflict of interest with Quik Print.

The pertinent jury findings were as follows:

(1) Defendant slandered T. 0 Gravitt during his lifetime as to sexual promiscuity and conflict of interest with Quik Print;
(2) Such slander of T. 0. Gravitt was published with knowledge or reckless disregard of its falsity;
(3) T. 0. Gravitt’s compensatory damages were $500,000;
(4) Defendant’s slander of T. 0. Gravitt was the proximate cause of his insanity which made it impossible for him to resist an impulse to take his own life;
(5) Oleta Gravitt Dixon’s compensatory damages for the death of T. 0. Gravitt were $500,000;
(6) Exemplary damages to Oleta Gravitt Dixon were $500,000;
(7) Defendant slandered James H. Ashley as to sexual promiscuity, false vouchering, and conflict of interest in Quik Print;
(8) James H. Ashley’s compensatory damages were $1,000,000;
(9) Exemplary damages for James H. Ashley were $500,000;
(10) The jury refused to find that defendant had a business interest in the slander of T. O. Gravitt and that such utterances were made in good faith;
(11) The jury refused to find that defendant had a business interest in the slander of James H. Ashley and that such utterances were made in good faith.

Defendant has stated and briefed 112 points of error stating why the trial court’s judgment should be reversed. Basically, defendant contends that:

(A) The investigation of misconduct was privileged as a matter of law and there is no evidence to establish the existence of facts sufficient to defeat the privilege;
(B) There were deficiencies in the plaintiff’s pleadings;
(C) There was error in the trial court’s instructions and special issues;
(D) There was no evidence or in the alternative insufficient evidence of the necessary elements of slander;
(E) Improper jury argument and side bar remarks were made by plaintiffs’ attorney;
(F) Defendant’s motion for change of venue should have been granted.

We agree with appellant that the report of wrongdoing establishes defendant’s conditional privilege to make inquiries or investigations in order to preserve its own effectiveness. Defendant made inquiries only after it had received reports which related to serious wrongdoings. Any reasonable employer would investigate such reports in order to preserve its own effectiveness. There is nothing in the record of this case to indicate that the reports of wrongdoings were not in fact received by the defendant. Under such circumstances, defendant’s conditional privilege arises as a matter of law. Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909 (1942); Roegelein Provision Co. v. Mayen, 566 S.W.2d 1 (Tex.Civ.App.—San Antonio 1978, writ ref'd n. r. e.); Mayfield v. Gleichert, 484 S.W.2d 619 (Tex.Civ.App.—Tyler 1972, no writ); Bridges v. Farmer, 483 S.W.2d 939 (Tex.Civ.App.—Waco 1972, no writ). In Reagan, the jury found in answer to a special issue that a forged and false instrument filed with the Board of Insurance Commissioners was not privileged. In holding that the question of conditional privilege is a question of law, the Supreme Court stated, “Of course, the findings of the jury that the instrument was not privileged or conditionally privileged were findings on pure questions of law. They are, therefore, of no effect.” 140 Tex. at 109, 166 S.W.2d at 912.

The law is well settled that once a conditional privilege is established it may be lost by a showing of “malice” and the burden is on the plaintiff to show malice. Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex.1976); Dun and Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896 (Tex.1970); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex.1969); Roegelein Provision Co. v. Mayen, 566 S.W.2d 1 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.). In Dun and Bradstreet, Inc. v. O’Neil, a credit reporting agency erroneously advised certain of its subscribers that the plaintiff had filed a voluntary petition of bankruptcy. The Supreme Court held that there was a conditional privilege as a matter of law and said:

The Court of Civil Appeals stated that plaintiff had been libeled as a matter of law, that defendant relied upon a conditional privilege as a defense, that a credit reporting agency is entitled to a conditional privilege if certain requirements are met, and that once the conditional privilege is shown to exist the burden is on the plaintiff to show that the privilege is lost, that is, plaintiff must then show actual malice. We are in agreement with these statements.

456 S.W.2d at 898. The Supreme Court also held that actual malice was shown when defendant acted “with knowledge that it was false or with reckless disregard of whether it was false or not” Id. at 901. In order to apply this standard, the Supreme Court of Texas treated Dun and Bradstreet as a media defendant the same as the ones involved in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (1969). Consequently, the defamation suit in O’Neil could be categorized as a private individual suing a media defendant. In light of this categorization and the decision in Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex.1976), which adopted the negligence standard in Texas for defamation actions instituted by private individuals against media defendants, it is uncertain whether the definition of malice in O’Neil is still the proper standard to apply in such a case.

This suit, however, involves a defamation action instituted by private individuals (Ashley and Gravitt) against a nonmedia defendant (Southwestern Bell). Since Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the proper standard to be applied in this ease is unclear. Legal commentators are in disagreement as to whether Gertz is applicable to a case involving defamation of a private plaintiff by a nonmedia defendant. Compare Brosnaham, From Times v. Sullivan to Gertz v. Welch: Ten Years of Balancing Libel Law and The First Amendment, 26 Hastings L.J. 777, 792-793 (1975) [and] Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Texas L.Rev. 199, 215-220 (1976) with Hill, Defamation and Privacy Under the First Amendment, 76 Colum.L. Rev. 1205, 1221-1227 (1976) [and] Frakt, The Evolving Law of Defamation: New York Times Co. v. Sullivan to Gertz v. Robert Welch, Inc., and Beyond, 6 Rut.-Cam. L.J. 471, 509-512 (1975). In this ease, however, as in Roegelein Provision Co., we need not determine the proper standard to be applied because the trial court submitted the New York Times standard without objection from either party.

In the present case, the trial court defined in its instructions and definitions both common law malice and actual malice. These definitions were as follows:

MALICE AND ACTUAL MALICE
MALICE means ill will, bad or evil motive, or such gross indifference to the rights of others as amounts to wilful or wanton disregard of the rights of others.
You are instructed that a corporation can act with malice only if the malicious act is committed by one under circumstances where his act is the act of the corporation or whose act was previously authorized or subsequently ratified by the corporation.
ACTUAL MALICE means that the statement was made with knowledge that the statement was false or with a reckless disregard for the truth. Further, you are instructed that reckless disregard for the truth means that the statement was made with a high degree of awareness of the probable falsity of the statement.

The questions on malice submitted by the trial court without objection from the ap-pellees were as follows:

QUESTION NO. 3
Was the slander published, if it was, by the Defendant, Southwestern Bell Telephone Company, during the lifetime of T. O. Gravitt, with the knowledge that it was false or with reckless disregard of whether it was false or not?
QUESTION NO. 18
Was the slander of Plaintiff, James H. Ashley, published, if it was, by the Defendant, Southwestern Bell Telephone Company, with the knowledge that it was false or with reckless disregard of whether it was false or not?

The terms “malice” and “actual malice” were not used in the special issues pertaining to appellees’ cause of action for slander.

It is apparent that the case was submitted to the jury on the theory that the defense of conditional privilege could be overcome only by a showing of knowledge of falsity or with reckless disregard of whether it was false or not. No issue was submitted to the jury or requested by ap-pellees on the question of common law malice in relation to the slander cause of action. We have carefully examined the record in this case for any evidence showing that the appellant interrogated its employees concerning the reports of misconduct with actual knowledge that the reports were false or with reckless disregard of whether the reports were false or not. There is no evidence of probative value upon this issue. We think that the circumstances under which the investigation was conducted present a case of conditional privilege unaccompanied by any circumstances tending to show actual malice on defendant’s párt.

Appellees argue that the conditional privilege character of the interrogation was destroyed because the occasion was used for the unlawful purpose of defaming and injuring the appellees, rather than making a bona fide inquiry into the reports of wrongdoing. Appellees rely upon the fact that their complaints of wrongdoing by the appellant in its rate-making structure, kickbacks, improper vouchering, and political contributions, caused indignation and resentment on the part of appellant and was the motivating cause for the defamation. On the record before us, such inferences could be based upon nothing more than suspicion. There is no testimony which would directly justify the inference appel-lees seek to have this court draw from the complaints made by Ashley and Gravitt. Such an inference would mean that an employer could never investigate an employee who had previously criticized his employer.

This case is clearly one of conditional privilege and there is no evidence of malice or improper motive; therefore, it is not necessary that we consider the other points raised by appellant.

Ashley alleges in his only cross-point that the trial court erred in failing to include in the charge to the jury Ashley’s tendered issue of wrongful discharge.

In the absence of contractual limitations, the employer has the authority to discharge an employee with or without cause. 38 Tex.Jur.2d Master and Servant § 12 (1962); See Horn v. Builders Supply Co. of Longview, 401 S.W.2d 143 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.). The basic rule was stated by the Supreme Court in the early case of East Line & R. R. R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888), as follows: “It is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite, or determinable by either party, that either may put an end to it at will, and so without cause.”

Ashley insists that his contract of employment with appellant was for as long as he satisfactorily performed his duties; thus, he could not be discharged without just cause while he performed satisfactorily. To support this contention, Ashley cites the case of Hardison v. A. H. Belo Corp., 247 S.W.2d 167 (Tex.Civ.App.—Dallas 1952, no writ). Hardison holds that in the event there is an agreement whereby the employee would be employed for so long as he satisfactorily performed his duties for which he was hired, the employer may not discharge the employee without showing honest dissatisfaction with the employee’s work. Id. at 168; Accord, Porter v. United Motels, Inc., 315 S.W.2d 340 (Tex.Civ.App.—Waco 1958, no writ).

Ashley’s employment with appellant resulted from his successful completion of a one-year management trainee course. In 1951, appellant decided that for the first time it would go directly to colleges to recruit management trainees. Ashley was interviewed by appellant and on May 1, 1951, was sent the following letter:

Dear Jim:
This will confirm the offer I made you on April 30 of employment with our Company starting in June. The starting salary will be $270 per month. If your progress is satisfactory and you wish to remain with our Company, you will receive a $20 increase at the end of the first six months and another at the end of the first twelve months. You will be on a supervisory basis from the start and will receive approximately one year’s training. Your progress after that time will depend upon your performance. The passing of a physical examination is one of the requirements of employment.
Attached is a form for the report of your physical examination. Will you please have the examination made by either Dr. W. Gordon Maddox or Dr. W. S. Miller, Jr., at Denton. He should send the report to me and we will pay the bill. When his report is received showing your physical condition satisfactory, I will inform you whether the starting date will be June 4 or June 11.
I appreciated the opportunity of talking to you and showing you a little of the Commercial work in Dallas. I’m sorry not to have been able to spend more time with you.
Sincerely yours,
(C. W. Clark)
Commercial Personnel Supervisor

Of approximately 30 people in this class of management trainees, Ashley and about thirteen others successfully completed the course. It is this letter that Ashley contends amounted to his satisfactory performance contract. We disagree.

The employment contracts involved in both the Porter and Hardison cases contain specific agreements to the effect that the employee would be employed for so long as he satisfactorily performed his duties. In the instant case, we find no contractual limitation or qualification which would limit appellant’s right to discharge Ashley with or without cause. The letter in question pertains only to the one-year training program and does not promise future employment.

We hold that there was no evidence to require the submission of the requested issue and the trial court was correct in refusing same. The judgment of the trial court is reversed and judgment is here rendered that plaintiffs take nothing.

KLINGEMAN, J., did not participate in the disposition of this appeal.

      . This standard was first enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and is hereafter referred to as the New York Times standard.


author: JAMES, Justice.

text:
    STATE of Texas, Appellant, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Appellee.
    No. 5992.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1978.
    Rehearing Denied Jan. 18, 1979.

      Henry M. Wade, Dist. Atty., Charles Bowling, Jr., Giles E. Miller, Asst. Dist. Attys., Dallas, for appellant.
    Raymond L. Tollett, Jr., Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a suit to collect delinquent ad valorem taxes on personal property. Plaintiff-Appellant State of Texas brought this suit in County Court at Law No. One of Dallas County against two Defendants, to wit, General American Life Insurance Company of St. Louis, Missouri, and Associates Capital Company, Inc. (formerly doing business as “Spanish Garden Apartments”) for the collection of the 1975 ad valorem taxes assessed on certain personal property (appliances) located in an apartment complex known as “Spanish Garden Apartments,” at Irving, Texas, in Dallas County. Said delinquent taxes sued for were alleged to be in the net amount of $243.80 plus penalty and interest, and said taxes, penalty, and interest sued for were alleged to be altogether, “$400.00 more or less.”

The State of Texas alleged that it was bringing this suit “in behalf of itself and for the use and benefit of Dallas County and all other political subdivisions whose taxes are collected by the Assessor and Collector of taxes of said County.” The record before us does not show what political subdivisions, if any, have their taxes collected by Dallas County; therefore, for the purposes of this appeal we must assume that the only plaintiff in this suit was the State of Texas acting in behalf of itself and for Dallas County only.

Plaintiff State alleged in effect that on January 1, 1975, Plaintiff assessed taxes on personal property of Spanish Garden Apartments in Irving, Texas, consisting of appliances and other personalty; that thereafter on July 1, 1976, said taxes went upon the delinquent tax roll; that on or about October 3, 1975, Defendant Associates had become delinquent in its note payments to Defendant General American, whereupon General American foreclosed title to Spanish Garden Apartments out of Associates, including the personal property assessed upon in question. Plaintiff prayed for judgment against Defendants for the $243.80, plus penalty, interest, and costs of suit; Plaintiff further asserts that it has a lien on the foreclosed personal property, title to which personalty went into Defendant General American; then Plaintiff further alleges “any eventual tax foreclosure is contemplated upon only so much of the total property as is sufficient to satisfy the debt which is likely to approximate some $400.00, more or less, well within the jurisdiction of this Court.”

Plaintiff’s prayer reads as follows:

“Wherefore, this Plaintiff prays for judgment for the total amount of said taxes, together with all penalties, interests, costs and other charges or expenses, including additional taxes, that (it) may be or become entitled to under the law and facts.”

The Defendants countered by contending that the county court had no jurisdiction over the case, because the value of the personal property assessed for the taxes in question exceeded the jurisdictional limit of the county court. Defendants deny that Plaintiff has any lien on the personalty in question, but contend that if Plaintiff does have such a lien, that under Article 7269, Vernon’s Texas Civil Statutes, it applies to all the personalty; that where the suit is for foreclosure upon personalty, the value of the personalty foreclosed upon determines the jurisdiction of the county court. There is no showing in the pleadings of either Plaintiff or Defendants what the value of the personalty in question amounted to; however, in a letter written by the trial court to counsel for both sides (which letter is contained in the transcript), the court states that the personal property in question “was on the tax rolls at $10,740.00 . .” No party herein disputes said amount.

The trial court without hearing evidence determined that Plaintiff’s cause of action should be dismissed for want of jurisdiction, and entered its order dismissing Plaintiff’s cause of action without prejudice, at Plaintiff’s cost, from which order Plaintiff-Appellant State of Texas appeals. Appellant has filed a brief; however, the Appellees have filed no brief.

Appellant State asserts error of the trial court in two respects: (1) in dismissing the cause for want of jurisdiction, and (2) in taxing the court costs against Appellant. We sustain both of Appellant’s points of error, and accordingly reverse and remand the cause for reinstatement of said cause upon the trial court’s docket for trial on the merits.

Since this is a suit for $243.80 worth of net taxes plus penalty, and interest, the aggregate of which is alleged to be “$400.00 more or less,” and is for taxes assessed against personal property, we are of the opinion and hold that the county court had jurisdiction.

Article 8, Section 15 of the Texas Constitution provides:

“The annual assessment made upon landed property shall be a special lien thereon; and all property, both real and personal, belonging to any delinquent taxpayer shall be liable to seizure and sale for the payment of all taxes and penalties due by such delinquent; and such property may be sold for the payment of the taxes and penalties due by such delinquent, under such regulations as the Legislature may provide.”

It is well settled that the State and County have no lien upon personal property for taxes due by the owner until the same has been seized or levied upon. Cassidy Southwestern Commission Co. v. Duval County (Comm.App.1928) 3 S.W.2d 416, 418, judgment approved; Maro Co., Inc. v. State (Amarillo CA 1943) 168 S.W.2d 510, 512, writ refused; In Re Brannon (5th Cir. 1933) 62 F.2d 959, 962; International Harvester Co. v. Smith (San Antonio CA 1936) 91 S.W.2d 827, 831, writ dismissed; City of Alice et al v. Bowers-Wright Funeral Home (San Antonio CA 1962) 362 S.W.2d 888, 890, no writ. Also see 54 Tex.Jur.2d, “Taxation,” pars. 142, 143, pp. 338 et seq.; par. 157, page 364.

Article 7266, Vernon’s Texas Civil Statutes, in its pertinent parts provides:

“If any person shall fail or refuse to pay the taxes imposed upon him or his property by law, until the first day of January next succeeding the return of the assessment roll of the county to the Comptroller, the tax collector shall, by virtue of his tax roll, seize and levy upon and sell so much personal property belonging to such person as may be sufficient to pay his taxes, together with all costs accruing thereon; . . . .”

In the case at bar, there is no showing by pleading or otherwise in the record that there has been any seizure or levy upon the personal property in question; therefore, we are of the opinion and hold that the State of Texas and Dallas County at no time material to this controversy had a lien on said personalty. This being so, the jurisdiction of the court is determined by the amount of the debt which is well within the jurisdiction of the county court.

However, Appellant State of Texas asserts it has a lien on the personal property in question by virtue of Article 7269, which in its pertinent parts reads:

“In all cases where a taxpayer makes an assignment of his property for the payment of his debts, or where his property is levied upon by creditors, by writs of attachment or otherwise, . . . , and the taxes assessed against such person or property . remain unpaid in part or in whole, the amount of such unpaid taxes shall be a first lien upon all such property; Such unpaid taxes shall be paid by the assignee when said property has been seized by the sheriff, out of the proceeds of sale in case such property has been seized under attachment or other writ, . . . ; and, if said taxes shall not be paid, all said property may be levied on by the tax collector and sold for such taxes in whomsoever’s hands it may be found.”

As we understand it, Appellant State of Texas contends that this case falls under that certain provision of Article 7269 wherein the taxpayer’s “property is levied upon by his creditors, by writs of attachment or otherwise,” in which event the unpaid taxes would be a lien upon “all such property.” The State asserts a lien in this manner in behalf of itself and the County; however, Appellant says that the county court still has jurisdiction in that Appellant seeks only to foreclose upon only so much of the personalty to pay the debt, as opposed to foreclosing upon all the personalty in question. We do not agree.

According to the pleadings before us, Defendant American General as a creditor did not levy upon the property of Defendant Associates as original owner, “by writ of attachment or otherwise,” but on the contrary American General merely foreclosed their security agreement against Associates and bought the property in at the public sale. Therefore, we are of the opinion and hold that Article 7269 has no application to the case at bar. Under our view of the case, since the State and county have no lien on the personalty in question, this suit for taxes, penalty and interest is in the nature of a suit for debt, all of which is in the amount of approximately $400.00, which is an amount in controversy well within the jurisdiction of the County Court at Law Number One of Dallas County, Texas. For these reasons, we believe the trial court had jurisdiction over the cause and erred in dismissing Appellant’s cause of action.

Appellant’s second point of error complains that the trial court erred in taxing the costs against Appellant. We sustain this contention, since it is well settled that the State and County are not liable for the costs in a suit for collection of delinquent taxes. Articles 7297, 7333, V.T.C.S. Article 7333 expressly provides that as to cost in such cases, “in no case shall the State or county be liable therefor.” State v. Moak (Tex.1948) 146 Tex. 322, 207 S.W.2d 894, 897; also see State v. Farmer (Dallas CA 1970) 457 S.W.2d 179, 182, no writ; State v. Hagerty (Dallas CA 1972) 479 S.W.2d 729, 733, no writ.

For the reasons herein stated, we reverse and remand the cause'for reinstatement on the trial court’s docket for trial on the merits.

REVERSED AND REMANDED.


author: ROBERTSON, Justice.

text:
    SECURITY & COMMUNICATIONS SYSTEMS, INC., d/b/a Echo Security Systems, Appellant, v. Eddie C. HOOPER, Appellee.
    No. 19638.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 6, 1978.
    Rehearing Denied Jan. 4, 1979.

      Herbert S. Bonney, Jr., Samuel R. Bon-ney, Bonney, Wade & Stripling, Dallas, for appellant.
    Clayton E. Devin, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   ROBERTSON, Justice.

This is a sales commission case. Appellee, Eddie Hooper, sued appellant, Security & Communications Systems, Inc., d/b/a Echo Security Systems, for sales commissions due on three contracts with the Texas National Guard for the sale and installation of intrusion detection equipment. Hooper was employed as the branch manager of the Dallas branch of Echo Security Systems, and pursuant to his employment contract, he was paid a salary, plus commission, computed under a formula that Echo had established. Trial was to a jury on special issues. Judgment was rendered for Hooper on the basis of the jury’s answers to these issues. Echo appeals, complaining of error with regard to the special issues, the evidence, and the award of attorney’s fees. We affirm.

Echo first complains of the submission of Special Issue No. 1 which asks: “Was Mr. Hooper, plaintiff, the procuring cause of the defendant’s making the sales in question?” Echo objected to the submission of this issue on these grounds:’ “These defendants object and except to Question No. 1 for the reason that it asks if Mr. Hooper, the plaintiff, was the procuring cause of the defendant’s making the sale in question, and we submit that the proper question to ask is: Was Mr. Hooper, the plaintiff, the procuring cause of the defendant being given an offer to bid on the contract in question?” In its brief, Echo contends that the issue is misleading. We disagree. The trial court correctly overruled Echo’s objection and declined to submit Echo’s proposed issue because the issue submitted was the ultimate fact issue upon which the court could render judgment. Tex.R.Civ.P. 277 and 279 state that special issues must be controlling issues based on the pleadings and the evidence. Hooper pleaded that he was seeking commissions on a sales contract which he obtained for appellant, and he testified as to his efforts to make this sale. We hold that the issue was proper.

With regard to Echo’s point of error concerning the submission of Special Issue No. 2, since no objection was made to it prior to its submission to the jury,'Echo has waived its right to complain of this on appeal. Tex.R.Civ.P. 272, 274; Louisiana Pacific Corp. v. Smith, 553 S.W.2d 771, 776 (Tex.Civ.App.—Tyler 1977, no writ).

Echo next asserts that the trial court erred in rendering judgment for Hooper because there was no evidence, or alternatively insufficient evidence to show that the verdict was supported by the evidence. Echo also complains that the court erred in failing to grant its motion for judgment notwithstanding the verdict. We disagree with all three points. In considering the no-evidence point, we must view the evidence in the light most favorable to the jury’s findings and disregard all evidence to the contrary. If there is any evidence of probative force to support the jury’s findings, we are bound by these findings. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). Before a motion for judgment notwithstanding the verdict may be granted, the trial court must determine that there is no evidence of probative value upon which the jury could have made the findings relied upon. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974). To determine if the evidence is factually insufficient to support the jury’s findings, we must review all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660 (1951); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

We find that there is evidence sufficient to support the jury’s verdict that Hooper was entitled to a commission under the formula. The record contains testimony by Echo’s president, George Culler, by Hooper and by third parties pertaining to the work done, the efforts of Hooper, and the computation of the bid and the commission on the job in question. Additionally, Hooper offered two exhibits into evidence, without objection, that gave a detailed computation of the bid and commission. Although testimony and evidence were presented in rebuttal, we cannot substitute our judgment for that of the jury.

Echo also complains that no evidence was offered as to the “sales manual cost of equipment”, a necessary element of the commission contract formula. Although this manual was not introduced, both Hooper and Echo’s president, George Culler, testified that they used prices on equipment that Hooper obtained over the telephone in computing the bid on the National Guard contracts. Hooper testified that these prices were also used to compute the commission and presented an exhibit showing the computation that put these prices in the line calling for “sales manual cost of equipment.” No objection was made to his testimony or to his exhibits. No other evidence was presented which would tend to show that that term means anything other than Echo’s cost of goods. We hold that some evidence exists and thus, overrule this point.

Echo next argues that there is no evidence in the record to show that its president, George Culler, had the authority to grant commissions to Echo’s employees. The lack of an agent’s authority is a defensive matter that must be specifically pleaded and sworn to before it can be raised. Tex.R.Civ.P. 93(h). This Echo failed to do. As a result, Echo has waived any right to raise this defense on appeal. Fail v. Lee, 535 S.W.2d 203 (Tex.Civ.App.—Fort Worth 1976, no writ); see Heusinger Hardware Co. v. Frost National Bank of San Antonio, 364 S.W.2d 851 (Tex.Civ.App.—Eastland 1963, no writ).

As to attorney’s fees, Echo contends that the trial court erred in granting attorney’s fees to Hooper under Tex.Rev. Civ.Stat.Ann. art. 2226 (1971). This statute states that attorney’s fees are recoverable in cases for services rendered. Echo admits that Hooper has met all the requirements under art. 2226, but contends that the commissions contract is a special contract to which the statute does not apply. In support of this contention, Echo cites Eisenbeck v. Buttgen, 450 S.W.2d 696 (Tex. Civ.App.—Dallas 1970, no writ); Toch v. Eric Schuster Corp., 490 S.W.2d 618 (Tex. Civ.App.—Dallas 1972, writ ref’d n. r. e.); and G & W. Marine, Inc. v. Morris, 471 S.W.2d 644 (Tex.Civ.App.—Beaumont 1971, no writ), for the proposition that attorney’s fees are not recoverable under article 2226 in suits based upon special contracts. All three of these cases are distinguishable from the case at bar. In Eisenbeck, the court denied the plaintiff’s claims for attorney’s fees on the ground that the suit was not one for services rendered and thus, did not fall within article 2226. The court in Toch held that the plaintiff failed to sustain his burden of proving the amount of commissions due at the time he made demand, thus failing to satisfy one of the requirements of article 2226, but the court observed, nevertheless, that a salesman’s contract providing for commissions and bonuses was a contract for services under article 2226. Plaintiff’s failure to make a proper demand in G & W Marine was the basis for that court’s denial of recovery under article 2226. Thus, these cases do not support Echo’s contention. Here, Echo concedes that Hooper has fully satisfied the requirements of the statute in all other respects, and we hold that he is entitled to attorney’s fees under article 2226. Flagg Realtors, Inc. v. Harvel, 509 S.W.2d 885 (Tex.Civ. App.—Amarillo 1974, writ ref’d n. r. e.); Jackson v. Paulsel Lumber Co., 461 S.W.2d 161 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.).

An examination of the history of article 2226 reveals no basis for the contention that attorney’s fees are not recoverable in a suit on a special contract. The statute in an earlier form allowed recovery of attorney’s fees in suits on “sworn accounts,” and the courts defined this as an “open account.” Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958). Although McCamant v. Batsell, 59 Tex. 363 (1883) is the first case to mention “special contract,” Meaders v. Biskamp, supra, has been the most widely misconstrued holding in this area. In that case, the plaintiff sought recovery of attorney’s fees upon the sworn account provision of the statute. The court denied recovery on the basis that sworn account did not mean a transaction between parties resting on a special contract. Thus, it is clear that the term “special contract” in Meaders means simply a contract other than one arising from an “open account.” In Langdeau v. Bouknight, 162 Tex. 42, 50, 344 S.W.2d 435, 441 (1961), Justice Griffin clarified Meaders by stating that the court did not hold that recovery of attorney’s fees under any other provision of article 2226 could not rest on a contract basis. He further stated that Meaders only held that a recovery under the sworn account provision could not be had on a special contract. Moreover, in Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814, 820 (Tex.1970), Chief Justice Calvert pointed out that attorney’s fees may be recovered in a suit on a contract for personal services.

Article 2226 contains no language that implies it is inapplicable to claims arising from a contract. To exclude “special contracts” from the statute would have the effect of nullifying the amendments that have broadened its scope to include actions other than on sworn accounts. It should be noted that the supreme court has not applied the “special contract” theory in connection with a claim for services rendered under the statute. Johnson, Article 2226 Revisited: Penetrating the Judicial Labyrinth, 40 Tex.B.J. 395, 400 (1977). In Huff v. Fidelity Union Life Insurance Co., 158 Tex. 433, 312 S.W.2d 493 (1958), and Tacker v. Phillips, 473 S.W.2d 1 (Tex.1971), the supreme court allowed recovery of attorney’s fees under article 2226 even though the claims in both cases were based on express contracts containing special provisions. The “special contract” theory has been expressly rejected in Juarez v. Dunn, 567 S.W.2d 223, 227 (Tex.Civ.App.—El Paso 1978, writ ref’d n. r. e.), and Jackson v. Paulsel Lumber Co., 461 S.W.2d 161, 169-70 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.). We can find no sound policy reason to recognize a defense which defeats the clear intent expressed by the legislature in this statute. Accordingly, we hold that the existence of a “special contract” for providing services, labor or materials does not preclude granting attorney’s fees under article 2226, and we specifically adhere to the holding in Langdeau, and disagree with all authority to the contrary.

Finally, by its last point of error, Echo complains that the trial court erred in rendering judgment for Hooper on a theory of quantum meruit. No such cause of action was pleaded, no issues were requested, and the judgment does not mention such a theory. Consequently, we overrule this point.

Affirmed.

      . Echo’s commission agreement contains these elements: (1) sales manual cost of equipment and/or materials multiplied by two; (2) add 5% of (1) for sales tax, if applicable; (3) add 10% sales manual cost of equipment and/or materials as computed in (1) for commission: (4) add total labor hours at $10 an hour; (5) add a minimum of $10 to all contracts to cover wire, screws, clamps, etc., and (6) total sales price.

      . Special Issue No. 2 states: “Find in U.S. money the balance of commissions, if any, owed by defendant to Mr. Hooper.”

      . The cause of action arose under art. 2226 prior to the 1977 amendment, which expressly allows recovery of attorney’s fees in “suits founded on oral or written contracts.”

      . A special contract has been defined as one with provisions or stipulations not found in an ordinary contract relating to the same subject matter and if such provisions are omitted from a contract, the law will not supply them. Eisenbeck v. Buttgen, 450 S.W.2d 696, 702 (Tex.Civ.App.—Dallas 1970, no writ).

      .The court in Meaders defined Sworn account thus: An account in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other and the relation of debtor and creditor is created by a general course of dealing. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958).


author: CADENA, Chief Justice.

text:
    Irving R. JOHNSTON, Appellant, v. Helen C. JOHNSTON, Appellee.
    No. 16014.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 6, 1978.

      Hugh H. Meyer, Meyer & Meyer, Hondo, for appellant.
    Collins B. Cook, San Antonio, for appel-lee.
   CADENA, Chief Justice.

This is a divorce action in which the husband, Irving R. Johnston, appeals from the judgment of a district court of Bexar County granting the wife, Helen C. Johnston, a divorce, partitioning the community estate of the parties, naming wife as managing conservator of the minor children of the parties and ordering husband to contribute to the support of such children.

Husband’s sole complaint here is that the trial court erred in overruling his plea in abatement which was based on the fact that on September 23, 1977, prior to the entry of the decree by the Texas court, an Oklahoma court entered a decree dissolving the marriage between the parties, partitioning the property, and providing for custody and support of the minor children.

The parties were married in San Antonio, Texas, in 1961 and lived together as husband and wife in San Antonio until January, 1977, at which time husband, a member of the armed forces of the United States, was transferred to a post in Oklahoma. The wife did not accompany her husband to Oklahoma, but remained in San Antonio with the children. In August 1977, husband filed suit for divorce in the district court of Oklahoma County, Oklahoma. On August 22, 1977, the wife, who continued to reside in San Antonio, received a summons by certified mail and a copy of her husband’s pleading. On the same day wife filed suit for divorce in a district court of Bexar County, Texas, of which San Antonio is the county seat.

Wife filed no pleadings in the Oklahoma suit, and on September 23, 1977, the Oklahoma court entered the judgment described in the second paragraph of this opinion. On October 7, 1977, husband filed a plea in abatement, based upon the Oklahoma divorce, and also filed a general denial. On October 31, 1977, the Bexar County district court, after a hearing, overruled husband’s plea in abatement and proceeded to hear the case on the merits. The judgment from which husband appeals was rendered on November 16, 1977.

During the trial, husband introduced no evidence concerning Oklahoma law, nor did he file a request, under Rule 184a, Texas Rules of Civil Procedure, requesting that the trial court take judicial notice of Oklahoma law. Under such circumstances it will be presumed that the Oklahoma law is the same as the Texas law. Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex.1963); Clayton v. Newton, 524 S.W.2d 368, 371 (Tex.Civ.App.—Fort Worth 1975, no writ).

Concerning service of citation at the time in question, Rule 106 provided that

[ujnless it otherwise directs, the citation shall be served by the officer delivering to each defendant, in person, a true copy of the.citation with the date of delivery endorsed thereon and with a copy of the petition attached thereto. Where it is impractical to secure personal service, as above directed, the court, upon motion, may authorize service ... by registered or certified mail

Tex.R.Civ.P. (1976). Because the rules authorizing substituted service are in derogation of the common law and, under some circumstances, are harsh rules, Texas courts have required strict compliance with the prescribed mode of service. Spencer v. Texas Factors, Inc., 366 S.W.2d 699 (Tex.Civ.App.—Dallas 1963, writ ref’d, n. r. e.); See Franks v. Montandon, 465 S.W.2d 800, 801 (Tex.Civ.App.—Austin 1971, no writ). The rule that the record must affirmatively show a strict compliance with the prescribed method of service has been firmly established in this State at least since the decision in Roberts v. Stockslager, 4 Tex. 307 (1849).

The rules in force at all times relevant to this case provided that where it was impractical to secure personal service, the court could, upon motion, authorize service by mail; however, before such substituted service could be authorized, the trial court was required to consider evidence of probative force concerning the impracticality of personal service. Franks, 465 S.W.2d at 801; Spencer, 366 S.W.2d at 700. There is nothing in the record before us which indicates that the Oklahoma court authorized service by mail. In fact, the record indicates that no such judicial authorization was obtained. The Oklahoma summons reflects on its face that the direction that service be by certified mail came from the husband, rather than the court.

In 1977, Rule 108, regulating service of citation on nonresidents, provided:

The return of service in such cases shall be endorsed on or attached to the original notice, and shall be in the form provided in Rule 107 [Rule 107 requires that the return shall state when the citation was served and the manner of service], and be signed and sworn to by the party making such service before some officer authorized by the laws of this State to take affidavits, under the head and official seal of such officer. .

Tex.R.Civ.P. The Oklahoma-return of service in this case recites that it is a “certificate of service by mail” but it is not sworn to by the person accomplishing such service. In order to support a default judgment upon substituted service, it is essential that the return meet the requirements of the Rule. David A. Carl Enterprises v. Crow-Shutt # 14, 553 S.W.2d 118, 120-121 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ). Since the return of service in this case did not comply with the requirements of Rule 108, it was fatally defective and insufficient to support the default judgment against the wife by the Oklahoma court. Upham v. Boaz Well Service, Inc., 357 S.W.2d 411, 418 (Tex.Civ.App.—Fort Worth 1962, no writ).

Since neither the method of service nor the return of citation would confer jurisdiction on a court under Texas law, and since we must assume that the Oklahoma law does not differ from Texas law, it must be concluded that the trial court did not err in overruling husband’s plea in abatement.

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Russell Fred KELLEY, Appellant, v. E. Lloyd KELLEY and Ernest R. Kelley, Appellees.
    No. 16009.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 13, 1978.

      James G. Murry, San Antonio, Louis Scott Wilkerson, Sneed, Vine, Wilkerson, Selman & Perry, Austin, for appellant.
    Emerson Banack, Jr., William T. Armstrong, San Antonio, for appellees.
   OPINION

KLINGEMAN, Justice.

This is an appeal from a judgment ordering appellant, and the defendant below, Russell Fred Kelley, to convey to each of the appellees, E. Lloyd Kelley and Ernest R. Kelley, an undivided one-sixth interest in a tract of approximately 48 acres of land in Medina County, Texas.

Appellees, plaintiffs in the trial court, are brothers of appellant. Upon the death of their mother in 1955, each of the three brothers received an undivided one-third interest in her onedialf share of the tract of land in controversy, with the remaining one-half interest belonging to their father, Elbert V. Kelley. After the death of his wife, Elbert V. Kelley remarried, was “not in the best of health,” and had financial problems. Sometime in 1965 the father needed additional funds and desire to sell his one-half undivided interest in the land. Appellees were not interested in buying the land, but appellant evidenced some interest in the purchase if he could get a loan. Appellant was told that a loan could be obtained from a local savings and loan association but that the lending institution would make the loan only if the title to the property was in one person. Thereafter, in order to facilitate the loan for the purchase, appellees executed the deed in question to appellant.

Plaintiffs brought suit against defendant alleging that they agreed to execute the deed involved only for the purpose of obtaining the loan and with the agreement that their respective one-sixth interests would be reconveyed to them at a later date. Appellant denied any such agreement and asserted defenses including the statute of frauds and the three-year statute of limitations. Trial was to the court which after a hearing granted a judgment ordering defendant to convey to plaintiffs their respective one-sixth interests in the land in question. The trial court made extensive findings of fact and conclusions of law, the pertinent portions of which are set forth as follows:

Findings of Fact:
II. Prior to 1965, Plaintiffs’ and Defendant’s father remarried and moved to San Antonio, Texas. After such remarriage, Plaintiffs’ father felt that he needed additional money and approached the Plaintiffs about buying his one-half (½) interest in the land. The Plaintiffs, although offering to assist their father, declined to purchase his interest in the property. Defendant, Russell Fred Kelley wanted to and did agree, to purchase his father’s interest in the property.
IV. In 1965, Defendant Russell Fred Kelley, sought the assistance of his two (2) brothers in obtaining the remaining one-half (½) interst [sic] in the tract of land belonging to the Plaintiffs’ and Defendant’s father.
V. The assistance the Defendant required was for the Plaintiffs to transfer their legal title to the undivided two-sixths (⅜) interest in the land to Defendant in order that Defendant would thereby apparently have full legal title in the tract of land and thereby could acquire financing to purchase the father’s interest.
VI. That it was understood between Plaintiffs and Defendant that the one-sixth (⅛) interest of each of the Plaintiffs would be reconveyed by Defendant to Plaintiffs at a later date. Without such an understanding and without the feeling of love and trust created by their confidential family relationship between the Plaintiffs and Defendant, the August 4, 1965 transfer of Plaintiffs’ two-sixths (⅜) interest in the aforesaid tract would not have occurred.
VIII. That because of Plaintiffs’ transferring their title to Defendant, Defendant was able to acquire financing and thereby acquire the one-half (½) interest in the land owned by Plaintiffs’ and Defendant’s father.
X. Plaintiffs never intended to make a gift of the two-sixths (⅜) interest in the land to Defendant, but always intended that it be reconveyed to Plaintiffs by Defendant, upon demand but no earlier than payment by Defendant of the original mortgage.
XI. In early 1974, Plaintiff E. Lloyd Kelley, sought to have the Plaintiffs’ interest in the land reconveyed by Defendant to Plaintiffs. Defendant, however, refused to reconvey and this suit was brought on June 13, 1974.
Conclusions of Law:
I. That Plaintiffs are entitled to have two-sixths (⅜) interest reconveyed to them because Defendant held the two-sixths interest in the land as a constructive trustee and he breached his obligation as trustee. (Authorities cited).
II. That Defendant could not avail himself of the Statute of Frauds defense against a claim for a constructive trust and that the admission into evidence of testimony in regard to a constructive trust did not violate the parol evidence rule (as amended by order of December 29, 1977).
III. That Defendant’s Statute of Limitations defense fails because Plaintiffs were never put on notice that Defendant was repudiating the trust until late 1973 or early 1974. (Authorities cited). Also the three year Statute of Limitations plead by Defendant was not the applicable Statute of Limitations in that the Defendant did not possess equitable title to the two-sixths (⅜) interest in question. (Authority cited).

Appellant asserts eight points of error which are hereinafter discussed.

Appellant’s first point of error is that the trial court erred in overruling his motion for summary judgment in the cause below. This point of error is without merit. Appellees did not file a motion for summary judgment and only appellant submitted such a motion. Appellant’s motion for summary judgment states that it is based upon the pleadings and exhibits attached thereto and the depositions taken prior to trial. There are no supporting affidavits in the record before us nor does such record contain any of the aforementioned depositions, except as alluded to in the statement of facts. Under the record before us, the trial court’s order overruling the motion for summary judgment is correct.

A party who moves for summary judgment has the burden of establishing his right thereto as a matter of law and all doubts as to the existence of a material fact must be resolved against the moving party. Campbell v. Avinger, 505 S.W.2d 788 (Tex. 1974); Farley v. Prudential Insurance Co., 480 S.W.2d 176 (Tex.1972); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). Appellant wholly failed to meet this burden.

It is obvious from appellant’s first point of error and his brief in support thereof that such point is predicated upon his mistaken conclusion that the trial court’s judgment is based solely upon a lack of consideration for the deed. Appellant argues from this premise that since the plaintiffs’ pleadings were not sworn to, they had no standing before the court under the mandatory provisions of Rule 93(j), Texas Rules of Civil Procedure. Defendant misconstrues the ruling of the court. It is clear from the court’s findings of fact and conclusions of law that this was not the sole basis for the judgment involved, if it was a basis at all. The trial court’s findings demonstrate that the judgment is primarily based upon a constructive trust theory under evidence that the deed was given to Russell Fred Kelley only for the purpose of securing a loan, with the understanding and agreement that the property would be recon-veyed to plaintiffs at a later date. Disregarding any failure of consideration, there are other sufficient grounds to support the judgment rendered herein. Moreover, the record contains no proof sufficient to have entitled appellant to a summary judgment in the trial court.

All of appellant’s remaining points of error, except his eighth point (which pertains to the statute of limitations), will be considered together. By such points he asserts (a) that the deed to defendant was absolute on its face and contractual in nature, and defendant’s statute of frauds defense was good; (b) that there is no evidence, or alternatively insufficient evidence, that the recitals in the deed were inserted by fraud, accident or mistake, which evidence is a necessary predicate; (c) that there is no evidence, or alternatively insufficient evidence, to support the trial court’s finding that there was an agreement that the property involved would be reconveyed to plaintiffs by defendant at a later date, and that such finding is against the great weight and preponderance of the evidence, and (d) that the court’s finding that plaintiffs never intended to make a gift of the property involved to defendant is against the great weight and preponderance of the evidence.

In support of his points of error, appellant relies heavily on that line of cases represented by Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184 (1955); and Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825 (1900). While there is language in both cases which supports appellant’s contention, these cases differ in several material respects from the case before us and we do not regard such cases as determinative of this appeal.

In Kahn, the Supreme Court held that where the appellant conveyed property to his wife by a deed which recited that the consideration was paid out of her separate funds and for her separate use and benefit, such recital showed a clear intention on his part to convey the land therein described to his wife as her separate property, and parol evidence was not admissible to show that such was not the intention, or to impose upon the grantee a parol trust in regard to such property.

Jackson v. Hernandez contains a good discussion of cases involving trusts but it is not directly in point. The court there held that where realty is conveyed by a deed which recites a contractual consideration but which does not stipulate, either expressly or by necessary implication, that the grantee named therein shall take the equitable as well as the legal title, the parol evidence rule does not preclude the establishment of a parol trust in favor of a third party and based upon prior agreement between grantee and such third party. The court further held that the statute of frauds does not prevent the engrafting of an express parol trust on a deed absolute in form.

The instant case falls within the category of the Supreme Court decisions of Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948) and Faville v. Robinson, 111 Tex. 48, 227 S.W. 938 (1921). In Faville, the suit was an action where according to her petition, the plaintiff was induced to convey to her mother a certain interest in real estate upon the mother’s oral representation and promise that at her death she would devise to plaintiff her entire interest in the property, which agreement was afterwards repudiated by the mother. Plaintiff sought to have the property impressed with a trust to the extent of the interest conveyed. The Supreme Court, in refusing the defendant’s application for writ of error, stated:

It is clearly and rightfully the rule in this State . . . that the title to property acquired under such circumstances is subject to a trust and that the trust may be established by parol. (Authority cited). Where a grant is made on the faith and because of a promise, a breach of the promise is necessarily a fraud, not to be tolerated in equity although the promise be only verbal.

Mills v. Gray contains an extensive discussion of the various types of trusts including “express trust,” “implied trust,” “resulting trust,” and “constructive trust,” and thoroughly sets forth the requirements for imposing a constructive trust on real estate. The Supreme Court noted that ordinarily a parol agreement between a grantor and a grantee that the property conveyed shall be held in trust for the grantor or reconveyed to the grantor or some other person, is an express trust which cannot be enforced where the statute of frauds requires a written instrument to create a trust.

The Court recognized that this rule has exceptions, and cited with approval the view of the Restatement of Trusts, Section 44, that:

(1) Where the owner of an interest in land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the transferor, if
(a) the transfer was procured by fraud, duress, undue influence or mistake, or
(b) the transferee at the time of the transfer was in a confidential relation to the transferor, .

147 Tex. at 38, 210 S.W.2d at 988. In Mills the Supreme Court found the following pertinent facts:

The respondents alleged, and attempted to prove, that the Broadway property was conveyed [by them] to Harry G. Mills only in accordance with the plan of settling the community affairs of Mr. and Mrs. Gray, and that it was understood by all concerned that the property would be held by him in trust for the benefit of his mother and the other children, and that after the divorce he would reconvey it to her, or if sold, he would divide the proceeds among the parties entitled thereto. There were no allegations of fraud, accident or mistake (emphasis added).

Id. at 36, 210 S.W.2d at 986-87. Under those facts, the Supreme Court concluded that plaintiffs could introduce parol evidence concerning the oral agreement regarding the reconveyance of the property.

The Supreme Court in Mills clarified the law applicable to such agreements to reconvey:

A constructive trust arises where a conveyance is induced on the agreement of a fiduciary or confidant to hold in trust for a reconveyance or other purpose, where the fiduciary or confidential relationship is one upon which the grantor justifiably can and does rely and where the agreement is breached, since the breach of the agreement is an abuse of the confidence, and it is not necessary to establish such a trust to show fraud or intent not to perform the agreement when it was made. The tendency of the courts is to construe the term “confidence” or “confidential relationship” liberally in favor of the confider and against the confidant, for the purpose of raising a constructive trust on a violation or betrayal thereof. A parent and child, grandparent and child, or brother and sister relationship is not intrinsically one of confidence, but under circumstances involves a confidence the abuse of which gives rise to a constructive trust in accordance with the terms of an agreement or promise of a grantee to hold in trust or to reconvey.

Id. at 39, 210 S.W.2d at 988, citing 54 Am.Jur. § 233. The Court further cited approvingly the following:

There are numerous cases to the effect that where at the time of the transfer the transferee was in a confidential relation to the transferor, and the transferor relied upon his oral promise to reconvey the land, he is chargeable as constructive trustee of the land for the transferor. In these cases it is held that the constructive trust will be imposed even though at the time when he acquired the property the transferee intended to perform his promise and was not therefore guilty of fraud in acquiring it; and even though the transferee did not take improper advantage of the confidential relation in procuring the transfer and was not therefore guilty of using undue influence. The abuse of the confidential relation in these cases consists merely in his failure to perform his promise.

Id., citing 1 Scott on Trusts § 44.2. In further support of its position, the Court held:

Fraud sufficient to raise a constructive trust from an oral promise made by the grantee to his grantor is not necessarily limited to actual fraud. As the earlier annotations indicate, the breach of a confidential relationship existing between the grantor and the grantee frequently is considered to be such constructive fraud as will give rise to a constructive trust.

Id. at 39-40, 210 S.W.2d at 988-89, citing Annot., 159 A.L.R. 997, 1007 (1945). The Court concluded that:

Under these principles, if the purported agreement and family arrangement had been established as true, a constructive trust would have arisen by reason of the confidential relation between the parties which would not fall within the prohibition of the Statute of Frauds or the Texas Trust Act. The testimony was therefore erroneously excluded by the trial court.

Id. at 40, 210 S.W.2d at 989. See also Williams v. Williams, 559 S.W.2d 888 (Tex. Civ.App.—Waco 1977, writ ref’d n. r. e.); Gause v. Gause, 430 S.W.2d 409 (Tex.Civ. App.—Austin 1968, no writ).

Although there is some conflicting evidence, we have concluded that the trial court’s findings and conclusions (a) that the deed involved was executed under an agreement and understanding that at a later date the property interest conveyed would be reconveyed to plaintiffs; (b) that the deed was given pursuant to a family arrangement for the purpose of making a loan which was beneficial both to the father, Elbert V. Kelley, and to defendant; (c) that there was no intention on. the part of plaintiffs to make a gift to defendant; (d) that the transferee at the time of the conveyance was in a confidential relationship to the transferors; and (e) that there was a constructive trust, are amply supported by the evidence. For the reasons enumerated, appellant’s points of error 2, 3, 4, 5, 6 and 7 are overruled.

Appellant’s eighth point asserts error in the trial court’s conclusion of law that defendant’s statute of limitations defense fails because plaintiffs were never put on notice that defendant was repudiating the trust until late 1973 or early 1974, and that the three-year statute of limitations was not applicable in that defendant did not possess equitable title to the two-sixths interest in question. Appellant urges that the evidence is insufficient to support that conclusion of law. We overrule such point of error.

The evidence shows that after the execution in 1965 of the deed involved both plaintiffs had keys to the property and had free access to the property, and that one of the plaintiffs had sheep on the land for a portion of the time. In 1973 or early 1974, the defendant agreed to allow a survey to be made on the property as to the appropriate ownership, that is, one-sixth to each plaintiff and four-sixths to defendant, and such a survey was made in which each plaintiff was to acquire a tract of 8.069 acres and defendant was to receive a tract of 32.276 acres, which tract included the old family home. At all pertinent times, defendant’s actions were consistent with his promise to reconvey the property at a later date. It was not until late 1973 or early 1974 that it became obvious to plaintiffs that defendant did not intend to carry out his promise to reconvey the property. The suit was then timely filed.

The trial court’s ruling on limitations was correct on two grounds. First, the statute of limitations in a case involving a constructive trust does not begin to run until the beneficiary knew or should have known that he had a cause of action. See Andretta v. West, 415 S.W.2d 638 (Tex.1967); Gause v. Gause, 430 S.W.2d 409 (Tex.Civ.App.—Austin 1968, no writ). Gause involved a suit by a son and his wife seeking to impress a constructive trust on property conveyed by them to his father on the oral representation of the parents that the surviving parent at death would devise the property to the son and his wife. The suit was brought in 1967. In overruling the plea of limitations, the trial court concluded that the mother’s intention not to keep the promise that had induced the conveyance in 1949 was not discovered by the son and wife until sometime in 1966.

The second basis on which the trial court’s ruling on limitations may be sustained is that because of the cotenancy defendant’s use of the property was not adverse to that of the plaintiffs. See Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565 (1950); Williams v. Williams, 559 S.W.2d 888 (Tex.Civ.App.—Waco 1977, writ ref’d n. r. e.); Morton v. Morton, 286 S.W.2d 702 (Tex.Civ.App.—Texarkana 1955, no writ); Hitchcock v. Cassel, 275 S.W.2d 205 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.); 15 Tex.Jur.2d Cotenancy §§ 24-25 (1960). In Condra, the court stated:

[Possession of a cotenant will be presumed to be in his right as cotenant and . acts relied upon to establish an ouster of his cotenants and to start the running of limitation against them must be of such unequivocal nature and so distinctly hostile to their rights that the intention to disseize is clear and unmistakable.

149 Tex. at 387, 233 S.W.2d at 569. Appellant’s eighth point of error is therefore overruled.

The judgment of the trial court is affirmed.

      . See Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966), and Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).


author: KEITH, Justice.

text:
    DENNIS WEAVER CHEVROLET, INC., Appellant, v. Mrs. George CHADWICK, Appellee.
    No. 8182.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.

      George Sladczyk, Jr., Port Arthur, for appellant.
    Tommy A. Gunn, Orange, for appellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment based upon a jury verdict and we will designate the parties as they appeared in the trial court. The suit was maintained and submitted under the provisions of the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code Ann. Sec. 17.41, et seq. (Supp.1978), hereinafter “DTPA”.

On June 14, 1976, plaintiff purchased a new 1976 model Chevrolet from defendant and the window sticker indicated that it was equipped with a four-barrel carburetor. A week or so later, she discovered that the vehicle was equipped with a two-barrel carburetor and there was yellowish fresh gasket sealer on the engine block which, according to other testimony, indicated there had been a change in carburetors since it had left the factory.

Being unable to adjust her differences with the defendant on an amicable basis, suit was filed under DTPA and submitted upon several theories, none of which are included in the so-called “laundry list” found in DTPA § 17.46(b). Defendant argues at length that insofar as it authorizes treble damages for acts or omissions not included in the laundry list, DTPA is unconstitutional. Defendant brings forward all of the arguments so ably articulated by Chief Justice Guittard in Singleton v. Pennington, 568 S.W.2d 367, 377 (Tex.Civ.App.—Dallas 1977, writ filed), and Chief Justice Greenhill’s caveat expressed in the concurring opinion in Spradling v. Williams, 566 S.W.2d 561, 564-565 (Tex.1978).

Defendant’s constitutional challenge of the statute is contained in a supplemental brief filed long after our receipt of plaintiff’s reply brief. While we granted leave to file a supplemental brief, we specifically provided in our order that no new points of error could be included therein. We decline to pass upon the constitutionality of this important statute in response to points of error not included in the original brief. See Smith v. Hues, 540 S.W.2d 485, 489 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.), and authorities therein cited. We turn now to a consideration of the points of error which are properly before us.

The jury answered all inquiries favorably to the plaintiff and fixed her damages for mental anguish at $1,300; the replacement cost of the four-barrel carburetor was determined to be $387.71 — both damage figures being trebled in the judgment — and she was awarded attorney’s fees stipulated at $750.

We summarize the plaintiff’s jury findings in the margin, noting here that the jury refused to find that the sole cause of plaintiff’s damages was the theft by unknown persons of the four-barrel carburetor without the knowledge or consent of the defendant; and it answered negatively an inquiry if plaintiff allowed defendant a reasonable opportunity to cure the defect in her car.

Defendant argues at length that the trial court erred in permitting a recovery of damages for mental anguish and we will direct our attention to that contention first. Primary reliance is placed on Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81, 86 (1953), from which we take this lengthy excerpt:

“[Mjental anguish, standing alone, is too subtle and speculative to be measured by any known legal standard; mental anguish and its consequences are so intangible and peculiar and vary so much with the individual that they cannot reasonably be anticipated, hence they fall without the boundaries of any reasonably proximate causal connection with the act of the defendant; a ‘wide door’ might thereby be opened not only to fictitious claims but to litigation over trivialities and mere bad manners as well; and, finally, since mental anguish can exist only in the mind of the injured party, not only its extent but its very existence can be established only by the word of the injured party, in the absence of some objective injury.”

The Harned Court refused to adopt the “new tort”, saying that “we think the Legislature should determine whether the rule contended for by Harned is to be adopted in this state.” Id. The Supreme Court again commented upon the “new tort” and relaxed, only slightly, the Harned holding in Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex.1967). In the quarter century following Harned, the legislature has not adopted the “new tort”.

Defendant’s scholarly brief also calls attention to the slight modification of the Harned Rule in Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 907 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.). Other cases are cited as shown in the margin.

Although it created an entirely new cause of action in enacting DTPA, and notwithstanding the fact that it directed the courts to be guided by interpretations of the federal courts construing the Federal Trade Commission Act [§ 17.46(c)(1) and (2)], the legislature did not adopt the “new tort” of mental anguish as an element of damages. Instead, it provided in § 17.-50(b)(1) that the consumer who prevails may obtain “three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended.”

In adopting DTPA, the legislature is presumed to have known of the decision in Harned, supra, that the question of the adoption of the rule permitting a recovery for mental anguish in the absence of physical injury was for its own determination— not that of the courts. See Allen Sales & Service-Center, Inc. v. Ryan, 525 S.W.2d 863, 865-866 (Tex.1975), and authorities therein cited.

Mental anguish was mentioned in Woods v. Littleton, 554 S.W.2d 662, 672 (Tex.1977), but it must be admitted that it was treated only peripherally in the concluding paragraph of an otherwise lengthy opinion addressing other points in the case necessary to the interpretation of the statute. We are not persuaded that this passing reference to mental anguish amounted to the adoption of the “new tort” and the overruling of Harned sub silentio.

The fact structure of this case demonstrates the soundness of the rule which would deny recovery for mental anguish in a suit under DTPA in the absence of physical injury. However, we first review very briefly the theory of mental anguish to see its inapplicability to a two-barrel versus four-barrel carburetor controversy.

Black’s Law Dictionary (Rev. 4th Ed. 1968), cites Western Union Telegraph Co. v. Chamberlain, 169 S.W. 370 (Tex.Civ.App.—Austin 1914, no writ), as one source of the definition of the term. We take this somewhat lengthy excerpt from Chamberlain :

“What is mental anguish? The Supreme Court of North Carolina in Hancock v. Telegraph Co., 137 N.C. 497, 49 S.E. 952, 69 L.R.A. 403, said:
“ ‘There is a very material difference between the significance of those words (“disappointment” and “regret”) and that keen and poignant mental suffering signified by the words “mental anguish.” * * * . . . * * * The lexicographers define anguish to be “intense pain of body or mind.” It is derived from the Latin word “an-guis,” a snake, referring to the writhing and twisting of the animal body when in great pain.’
“This definition of ‘mental anguish’ might well have been deduced from the general tenor of Texas cases on this subject, and is in accord with the decisions in other states. We quote from 37 Cyc. p. 1780, as follows:
“ ‘It is well settled however, that damages cannot be recovered on this ground for every mental disturbance or injury to the feelings, and that to constitute mental anguish there must be something more than worry, vexation, or disappointment or anger or resentment.’ ”

The rules enunciated in the several old cases are compatible with the law as it is reflected in the encyclopedias; see, e. g., 25 C.J.S. Damages § 64, p. 817 (1966), and Texas cases therein cited.

It is appropriate to note at this point that plaintiff has recovered $3,900 for her mental anguish, which in view of the evidence in the case is deemed “substantial damages”. Consequently, this observation invokes the language used in Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 250, 146 A.L.R. 732 (1942):

“Another general rule leads to the same conclusion. It is that mental anguish without other actual injury will not support the recovery of substantial damages.”

Our holding that damages for mental anguish may not be recovered under DTPA § 17.50 in the absence of physical injury is consistent and harmonious with the holding in Cantrell v. First Nat. Bank of Euless, 560 S.W.2d 721, 727 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n. r. e.), wherein the court said:

“We hold that the actual damages meant by Texas Business and Commerce Code, in the aforementioned § 17.50, are common law damages only.” (emphasis in text)

We return now to the reserved comment as to the evidence introduced supporting plaintiff’s theory of the recovery of damages for mental anguish and now note that the following resume contains all of the evidence tending to support the award of mental anguish.

Plaintiff took her car back to the defendant’s shop but refused to leave it for repair; she called the salesman who told her to bring the car back but she refused again. Upon being asked if that was embarrassing, she replied, “[I]t was very upsetting. It still is.”

She contacted a Mr. Lewis with the defendant’s agency who told her that “he was going to attempt to satisfy” her and he “told me to bring the car back, and at that time I told him ‘No’, I did not plan on going through that again, the car motor had been altered and I didn’t have a new car, anyhow.”

Finally, her counsel asked:

“Q Mrs. Chadwick, during the course— well, since June, 1976, would you tell the jury what, if any, inconvenience or mental anguish this had caused you about this car.
“A The first anguish that started was the day I went to Dennis Weaver to, I was told to pick out a new car and when Mr. Lewis took me out on the lot, and as I turned around and looked they had quite a gathering of people in the window. I wasn’t there on display, all I wanted was what I bought.
“Q Was there a bunch of salesmen looking at you on the lot, is that what—
“A I don’t know if they were salesmen or who they were, but there was a gathering of at lease four people in the window looking out watching. It was embarrassing.
“Q Did this cause — was it embarrassing to you?
“A Yes, it was.
“Q Was there any other inconvenience or mental anguish that you’ve suffered, Mrs. Chadwick?
“A Yes, I have had to miss work; I have been out numbers of phone calls. My time has been occupied— many days I’ve had to leave work and go back because of all of this.
“Q Are you still dissatisfied with the car as it now is, Mrs. Chadwick?
“A I’m very dissatisfied. I have never had the new car that I am still paying for.”

In addition to the earlier holding that damages for mental anguish may not be recovered under DTP A § 17.50 in the absence of physical injury, we hold (a) the foregoing constitutes no evidence of mental anguish; but (b) if we should be mistaken and it should be determined that such damages are recoverable under the Act, we now hold that the evidence is factually insufficient to support an award for mental anguish. In making these latter determinations, we have followed the requisite standards for evaluating the testimony in our record. See, e. g., Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

We sustain defendant’s points of error numbered 17, 18, and 19. The award of $1,300 for damages because of mental anguish suffered by the plaintiff is here and now set aside and the judgment of the trial court will be reformed so as to deny any monetary recovery for mental anguish.

When the car was delivered to plaintiff, the odometer registered 72 miles. Noting this before the delivery, plaintiff asked the salesman the reason therefor and was informed that the car had been driven from Houston to Port Arthur. Other evidence established the falsity of this statement, the car having been transported from the factory by rail and by truck; but the reason for the mileage shown upon the odometer is not disclosed in our record. Plaintiff did not ask for, nor did she receive, an odometer statement.

She frankly admitted on cross-examination that she did not have any way of knowing what damages, if any, she sustained because of the failure to receive an odometer disclosure, but she was seeking damages therefor. She was asked:

“Q Well, you’re in here asking for damages?
“A Yes, I am, yes, sir.
“Q And I’m asking you to tell us what they are. .
“A I have come up with a damage of two thousand dollars.
“Q That was for mental anguish?
“A That’s correct.”

There is no contention advanced that the odometer had been turned back or that plaintiff was mislead as to the number of miles the car had been driven before it was delivered to her.

The jury found that the failure to provide an odometer disclosure statement was “an unconscionable act”, which was a producing cause of an adverse effect upon plaintiff. The jury found, in answer to another series of issues, that the failure to provide an odometer statement was a deceptive trade practice which was a producing cause of an adverse effect upon plaintiff. No specific amount of damages was found to have been caused by these two omissions of defendant, the damages, if any, being lumped into the “mental anguish” award.

DTPA § 17.46(b)(16) provides specifically that one is guilty of a deceptive trade practice in “disconnecting, turning back, or resetting the odometer of any motor vehicle so as to reduce the number of miles indicated on the odometer gauge.” There is no contention that such was done in this instance and there is no requirement in the Texas DTPA which requires the furnishing of an odometer statement.

We now hold, based upon the record before us, that plaintiff has failed to establish any violation of DTPA because of the failure of defendant to furnish an odometer statement at the time of the delivery of the vehicle. Moreover, we hold that she has failed to prove any damages recoverable under the Act or at the common law. Consequently, the findings with reference to the odometer are wholly immaterial to any recovery herein and the trial court erred in failing to sustain defendant’s motion to disregard such findings.

The jury, in response to several issues, found that the defendant removed the four-barrel carburetor from the car and replaced it with a two-barrel carburetor. These findings were followed by findings that such acts constituted unconscionable conduct and, separately, deceptive trade practices which, in each instance, was a producing cause of an adverse effect on plaintiff.

Among the objections leveled at such issues by the defendant was “that there are no pleadings by the plaintiff to support the submission of these issues.” We have examined the plaintiff’s trial pleadings and do not find any allegation therein which would support the submission of the issues that the defendant’s agents actually removed the four-barrel unit and substituted a two-barrel device on the car.

It is the settled law in this state when a cause is submitted on special issues, only those controlling issues “that are raised by the written pleadings and the evidence” shall be submitted. Tex.R.Civ.P. 211. A similar provision is to be found in Tex.R.Civ.P. 219 speaking to the submission of “the controlling issues made by the written pleadings and the evidence.”

In Freitas v. Twin City Fisherman’s Cooperative Ass’n, 452 S.W.2d 931, 935 (Tex.Civ.App.—Corpus Christi 1970, writ ref d n. r. e.), the Court expressed the rule in this language:

“Special issues should not be submitted to the jury where there is no pleading to support them. Rules 277, 279, T.R.C.P. Matthews v. General Accident Fire & Life Assurance Corp., Ltd., 161 Tex. 622, 343 S.W.2d 251; Murray v. Brazzel, Tex.Civ.App., 438 S.W.2d 382, 386, wr. ref. n. r. e. If objection is made to their submission because of lack of pleading, answers to such issues will not support a judgment. Harkey v. Texas Employers’ Insurance Association, 146 Tex. 504, 208 S.W.2d 919.”

See also Rosenthal v. Texas Bank & Trust Co., 514 S.W.2d 127, 128-129 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.).

Plaintiff’s recovery cannot be sustained upon the basis of the jury’s findings to the special issues relating to the removal and substitution of the carburetors.

Defendant’s twentieth point of error complains of the submission of Special Issue No. 23 inquiring of the cost “to replace the two barrel carburetor . . . with a four barrel carburetor.” We set out the complaint in the margin. We find the contention to be hypertechnical and without merit.

W. H. Gordon, a shop foreman in a Chevrolet dealership in nearby Port Neches with nine years experience, testified without objection that the cost of installing a four-barrel carburetor in plaintiff’s car would be $387.71. He was asked: “Are these costs reasonable and necessary in this area?” and answered, “Yes, sir.” Plaintiff was entitled to receive a car with a four-barrel carburetor on it and the jury correctly awarded her the reasonable and necessary cost thereof— the precise amount set out by Gordon: $387.71.

Defendant does not deny that plaintiff was entitled to receive a car with a four-barrel carburetor, or that it had not collected the full price for a new car so equipped; nor does defendant complain of the insufficiency of the evidence to support the cost of replacement of the carburetor. Its counsel did not interrogate Gordon as to replacement cost nor did it offer any evidence to refute the testimony of Gordon.

We do not find reversible error has been presented, and the twentieth point is overruled. We have also given careful consideration to the remaining points of error and, finding no merit therein, each is hereby overruled.

In accordance with the foregoing opinion, we reform the judgment of the trial court by denying any recovery for mental anguish; thus, we reduce the amount of the recovery by three thousand nine hundred dollars; and, as to the remainder of the judgment, it is in all things affirmed. For the reasons apparent from the opinion, and pursuant to Tex.R.Civ.P. 448, costs in this appeal are divided equally between the parties.

Judgment Reformed and Affirmed.

      . Four main theories of recovery were submitted: (1) the failure to furnish an odometer statement was an unconscionable act and a deceptive trade practice, each of which was a producing cause of an adverse effect on plaintiff; (2) defendant placed a two-barrel carburetor on the car which was an unconscionable act and a deceptive trade practice, each being a producing cause of an adverse effect on plaintiff; (3) defendant removed the four-barrel carburetor from the car and replaced it with a two-barrel carburetor, which was an unconscionable act and a deceptive trade practice, each being a producing cause of an adverse effect; and (4) defendant used deceptive representations of geographic origin of the car which was a producing cause, etc.

      . “Recovery for mental anguish, in absence of physical injury, has been allowed by Texas Courts in very limited cases. Ledisco Financial Services v. Viracola, 533 S.W.2d 951 (Tex.Civ.App., Texarkana, 1976 no writ) (debt collection case); Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973) (intentional wiretap); Fisher v. Carrousel Motor Hotel, supra (assault and battery); Pat H. Foley & Co. v. Wyatt, supra (viewing dead body); and negligent misdelivery of ‘death message’ telegrams. Western Union Telegraph Co. v. Buchanan, 61 Tex.Civ.App. 212, 129 S.W. 850 (San Antonio, 1910 no writ).
      “Recovery was denied in a breach of warranty case involving a defective slab. Rogowicz v. Taylor & Gray, Inc., 498 S.W.2d 352 (Tex.Civ.App., Tyler, 1973 writ refd n. r. e.).”

      . The factual development of the question of mental anguish in Woods v. Littleton, in both published opinions leaves much to be desired.

      . “Unconscionable action" was defined as “any act or practice which, to a person’s detriment:
      a. Takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or,
      b. Results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration.”

      . The court defined “deceptive trade practice” as meaning “a course of conduct that, when performed in trade and commerce, has the tendency and capacity to mislead that portion of the general public toward whom such conduct is directed.
      “In determining ‘tendency’ and ‘capacity to mislead’, you are instructed to look to the overall impression such conduct would have on the general public, including the ignorant, the unthinking and the unsophisticated.”

      . For a discussion of the federal aspect of the odometer requirement, see Shepherd v. Eagle Lincoln Mercury, Inc., 536 S.W.2d 92, 95 (Tex.Civ.App.—Eastland 1976, no writ).

      . The special issues relating to the odometer statement are in two clusters: Special Issues 3, 4, and 5 in one cluster, with 12, 13, and 14 being in the second.

      . Defendant challenged these findings in its motion to disregard the answers in grounds II and V.

      . Defendant’s objection to' the charge preserved its right to complain on appe'al. See 3 McDonald, Texas Civil Practice § 12.07 — B, at 291 (1970 Rev. Vol.), and authorities therein cited.

      . “Appellant contends that since the Jury was not asked to find the necessary and reasonable cost of repair replacement of the carburetor in Jefferson County, Texas, and the Appellant objected to the issue, the findings cannot be presumed, and in the absence of such findings, the Appellee is not entitled to recover her damage on the basis of the findings of the Jury on Special Issue No. 23.”