author: DIES, Chief Justice.

text:
    John R. BARNES, Appellant, v. WATERS EQUIPMENT COMPANY, INC., Appellee.
    No. 8261.
    Court of Civil Appeals of Texas, Beaumont.
    May 17, 1979.
    Raymond A. Enstam, Dallas, for appellant.
    Allan R. Lazor, Victoria, Peyton D. Waters, Jr., Houston, for appellee.
   DIES, Chief Justice.

John R. Barnes, a defendant below (hereafter “Barnes”), a Dallas resident, is president of Equidyne Drilling Company, Inc., a co-defendant below (hereafter “Equidyne”). Equidyne was in the process of drilling an oil well in Jasper County. Both of Equi-dyne’s mud pumps broke down, and Barnes leased one from Water’s Equipment Company, Inc. (hereafter “Plaintiff”). Plaintiff required a $10,000 deposit, and Barnes, having no blank checks of Equidyne, gave Plaintiff a personal check for the $10,000 drawn on a Dallas bank.

The pump was delivered and allegedly did not perform properly; Equidyne returned the pump, and Barnes stopped payment on the check.

Plaintiff then sued Equidyne on the written contract for the lease of the pump, and alternatively upon a sworn account pursuant to Tex.R.Civ.P. 185, and further sued Barnes on the $10,000 check. The suit was brought in Jasper County, Texas. Both Equidyne and Barnes filed pleas of privilege, which were overruled, and from which only Barnes has appealed.

The controverting plea of Barnes sought to hold venue in Jasper County only under Tex.Rev.Civ.Stat.Ann. art. 1995, subdivision 5 (Vernon Supp.1978), by alleging that Barnes had entered a written contract performable in Jasper County.

At the hearing on the plea, Plaintiff admitted to the court that it had failed to show venue under subdivision 5 and received leave by the court to file a trial amendment, which it subsequently did. The amendment alleged generally that Barnes had failed to maintain the separate identity of Equidyne, which operated as a fraud upon Plaintiff. This pleading, says Plaintiff, makes Barnes a “necessary party” under subdivision 29a.

Plaintiff’s controverting plea was never amended, and indeed in our record still only, avers exception under subdivision 5 — the written contract.

Where a petition is properly incorporated into a controverting plea, and properly sworn to, if the petition is thereafter amended, the amendment is not incorporated into the controverting plea.

The controverting plea must thereafter be amended so that it is clear that the affiant is swearing to the facts in the amended petition if he relies on those facts for venue. Leonard v. Maxwell, 365 S.W.2d 340, 345 (Tex.1963); Madeley v. Oualline, 449 S.W.2d 352, 354 (Tex.Civ.App.—Beaumont 1969, no writ); Beasley v. Barshop, 352 S.W.2d 927 (Tex.Civ.App.—San Antonio 1961, no writ). See also Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688 (1943) at 689 holding that controverting plea “[must] evidence a clear intention to swear to the truth of all the facts set out therein.” (Emphasis added).

Plaintiff’s brief seems to anticipate this position and urges us to remand this case to the trial court for further development of the pleadings, citing Buchanan v. Jean, supra, and International Security Life Insurance Co. v. Robichau, 490 S.W.2d 871 (Tex.Civ.App.—Beaumont 1973, no writ).

We hold that even if the controverting plea properly asserted Plaintiff’s contention, Barnes is not a necessary party. In Loop Cold Storage Co. v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973), plaintiff sued three different defendants on the theory that one of them was responsible for plaintiff’s loss. The court commented (at 108):

“That argument appeals to our concern for the administration of justice. This is one controversy which perhaps could most fairly and expeditiously be tried as one lawsuit. But the Texas venue law does not leave our decision to considerations of better administration of justice. The statute (Art. 1995) directs that no one is to be sued out of the county of residence unless one of the statutory exceptions is met. Plaintiff’s right to sue Loop in Nueces County depends upon its meeting the exception of subdivision 29a

The court then states the rule that a party is a “necessary party” under 29a only when his joinder is necessary in order to afford the plaintiff complete relief to which it is entitled under the facts of the case.

In J. A. Burns v. National Finance Credit Corp. of Texas, 480 S.W.2d 224 (Tex.Civ.App.—Fort Worth 1972, no writ), the payee brought suit against the makers on a note payable in Tarrant County, and against the parties which secured the note. The court held that where the only relief sought by plaintiff payee against makers was a money judgment, the parties securing the note were not necessary parties. And, in Vahlsing, Inc. v. Esco, Ltd., 496 S.W.2d 652, 655 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d), the court said:

“The possibility that Vahlsing may be able to recover only a part of its alleged damages against Esco is not a factor which affects the determination of whether Bagley is a necessary party

It is clear in the instant case that Plaintiff may get full relief against Equidyne without the joinder of Barnes. The Tyler court has interpreted “full relief” under 29(a) to mean not the total relief which may be pleaded through several causes of action in one petition but the relief referable to only one distinct cause of action. Mims v. East Texas Prod. Credit Assoc., 496 S.W.2d 682, 686 (Tex.Civ.App.—Tyler 1973, writ dism’d). The order of the trial court overruling Barnes’ Plea of Privilege is reversed, and this cause is remanded to the trial court for entry of an order severing the cause as to Barnes and transferring said severed portion of the cause to one of the District Courts in Dallas County for trial.

REVERSED and REMANDED with instructions.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Raul TREVINO, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
    No. 1391.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 17, 1979.

      Richard Arroyo, Brownsville, Warren N. Weir, Charles Herring, Jr., Gochman & Weir, San Antonio, for appellant.
    Marshall W. Graham, Harlingen, Donna Lynn Snyder, San Antonio, for appellee.
   OPINION

NYE, Chief Justice.

Plaintiff Raul Trevino brought suit against Southwestern Bell Telephone Company alleging that the defendant broke and entered into his place of business, removed two business telephones without permission, and as a result, invaded the privacy of his business establishment to his damage. The case was tried before a jury. At the close of the evidence, the trial court withdrew the case from the jury and rendered judgment for the defendant telephone company. Plaintiff appeals.

Plaintiff alleged that he had experienced continuous disruptions of his telephone service because of malfunctioning equipment, requiring him to make, continuous complaints about his phone service, all of which went unheeded. Finally, the plaintiff called defendant’s headquarters in St. Louis, Missouri, complaining of the poor service he was receiving in Brownsville. The plaintiff contended that because of these complaints, the defendant telephone company decided to retaliate by removing plaintiff’s telephone instruments. Plaintiff alleged that the defendant telephone company trespassed upon his business premises, breaking down a door located at the rear of his office and thereafter removing his telephone instruments without his consent or authorization. He sought recovery for the following damages: loss of business in the amount of $15,000.00; $80.00 for repair to his door; $50.00 for inconvenience in being denied his telephone until it was replaced; mental anguish in the amount of $10,000.00; $10,000.00 for invasion of his right to privacy; punitive damages in the amount of $100,000.00; and nominal damages of $500.00. At the conclusion of the trial, the court ruled that there was no evidence that would warrant the submission of any of the damage issues to the jury. The plaintiff on appeal does not take issue with the trial court’s rulings regarding the lack of evidence on the various damage issues except for two: 1) mental anguish and/or 2) nominal damages.

The plaintiff’s first point of error concerns the trial court’s ruling that there wasn’t any evidence that would support an issue on mental anguish. On appeal, we are required to view all of the evidence in the light most favorable to the party against whom an instructed verdict is entered, indulging every inference that can properly be drawn from the evidence against the trial court’s action. Echols v. Wells, 510 S.W.2d 916 (Tex.Sup.1974); T-L Drilling Company v. Northern Propane Gas Co., 516 S.W.2d 710 (Tex.Civ.App.—Corpus Christi 1974, no writ); K & S Oil Well Service, Inc. v. Cabot Corporation, Inc., 491 S.W.2d 733 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.).

The evidence shows that Gilbert Rodriguez, an employee of the defendant telephone company, who installs and disconnects telephones, went to the plaintiff’s premises. When no one answered his knock at the door, Rodriguez went to the office of the Gold Cross Ambulance Service and asked Mr. Cavazos if he knew of anyone who had a key to plaintiff’s office. The evidence is conflicting as to what took place next. The plaintiff contends that Rodriguez broke down the door and took the telephones. The evidence, as we must view it, shows that the defendant’s employee entered plaintiff’s place of business without his permission and removed the telephones. When plaintiff discovered that his telephones had been removed, he went next door to the Gold Cross Ambulance Service and talked with Mr. Cavazos concerning the removal of his phones. Cavazos testified: “He [the plaintiff] came to me and was very upset, and he said someone had stolen his phones . . . and I told him I am sorry Southwestern Bell has come and pulled your phones. And he got upset.” The evidence showed on cross-examination that the plaintiff was mad and upset. “He was very upset that his office had been broken into.”

The invasion of privacy is a willful tort which constitutes a legal injury. Damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of a willful invasion of the right of privacy. This is so because the injury is essentially mental and subjective; no actual harm is done to the plaintiff’s body. Billings v. Atkinson, 489 S.W.2d 858 (Tex.Sup.1973). The term “mental anguish” implies a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation. Compare: Gonzales v. Southwestern Bell Telephone Company, 555 S.W.2d 219 (Tex.Civ.App.—Corpus Christi 1977, no writ). In Gonzales, we reversed and rendered judgment based on jury findings awarding damages for mental anguish. There, the injured parties testified at length as to their feelings of humiliation, stomach aches, loss of sleep, nervousness and embarrassment. The injuries were characterized as a feeling of loss of stature, self-esteem and humiliation that caused Mr. Gonzales to feel “like the size of a red ant, as small as that.” His wife could not sleep at night and was concerned about what her neighbors would think because of the invasion of her privacy by the telephone company. Here, the plaintiff never testified about any mental suffering, pain or humiliation. His only complaint was that he was very upset because someone had stolen his telephones. We hold that the trial court was correct in ruling that the plaintiff had not suffered mental anguish from the evidence presented. Plaintiff’s first point of error is overruled.

Plaintiff’s second point of error is that there was sufficient material evidence to support a jury issue on nominal damages and that the trial court erred in directing a take nothing verdict for the defendant telephone company. The trial court found that the plaintiff had raised a fact issue regarding the invasion of privacy of his property, but that there was no evidence that plaintiff had suffered mental anguish. After the trial court had ruled that there was no evidence to submit any issue concerning damages, the plaintiff’s attorney reminded the court that he had sought nominal damages for the trespass. The trial court stated to plaintiff’s attorney: “When we first sat down here this afternoon, as I understood, you told me that you were not going to pursue the trespass.” The attorney for the plaintiff acknowledged that that was true, but that was “ . . . before I knew that the court was going to cut out all the damage issues on me.” The trial judge then decided that he would not present any issues to the jury: “Your exception will be preserved,” he said. Compare: Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148 (1953). Where a trial court instructs a verdict, it is not necessary to request that a special issue be submitted.

Nominal damages are those damages recoverable where a legal right is to be vindicated against an invasion that produced no actual loss, or where, from the very nature of the case, some injury has been done, the amount of which the proof fails to show. 17 Tex.Jur.2d, Damages, § 4, p. 81. The defendant telephone company contends that there was no pleading which sought recovery for nominal damages based on an invasion of privacy. This contention is without merit. Plaintiff sought damages for trespass and invasion of privacy as well as nominal damages. Although the court carried along defendant’s exceptions to plaintiff’s pleadings, no ruling was made. The general rule is that where the record shows that the plaintiff is entitled to only nominal damages, the appellate courts will not reverse the entire case merely to enable him to recover such damages. Travelers Insurance Company v. Employers Casualty Co., 380 S.W.2d 610 (Tex.Sup.1964). To permit an entire new trial for such error would, in effect, give the plaintiff two trials, or two bites at the apple. See: Wilson v. Hart, 332 S.W.2d 107 (Tex.Civ.App.—Amarillo 1960, no writ); and Rossi v. Johnson, 355 S.W.2d 582 (Tex.Civ.App.—San Antonio 1962, no writ) and authorities cited therein. The defendant telephone company makes this suggestion in its brief. We agree.

We hold that although plaintiff was unable to prove any actual damages, he is entitled, nonetheless, to nominal damages for the trespass and invasion of privacy of his office establishment by the defendant telephone company’s employee. Therefore, we render the judgment that the trial court should have rendered by ordering the defendant to pay nominal damages in the amount of $50.00, and the costs both in the trial court and on appeal. Rule 434, T.R. C.P. We have considered plaintiff’s other points of error and they are without merit.

The judgment is REVERSED and judgment is here RENDERED that plaintiff recover $50.00 and all costs.


author: STOREY, Justice.

text:
    WINDMILL DINNER THEATRE OF DALLAS, INC., et al., Appellants, v. C. W. HAGLER, d/b/a H & H Builders, Appellee.
    No. 19804.
    Court of Civil Appeals of Texas, Dallas.
    May 17, 1979.
    Rehearing Denied June 13, 1979.

      Carter L. Ferguson, Jonathan D. F. Nelson, Fort Worth, for appellants.
    Mike M. Tabor, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   STOREY, Justice.

This is a suit for foreclosure of a mechanic’s lien upon removable fixtures which were incorporated into a construction project. Judgment was entered in favor of the plaintiff, Hagler, who was the general contractor; and the defendant Windmill Dinner Theatre of Dallas, Inc., the owner of the property, appeals from that judgment. The controlling factor in this case is the legal effect of a judgment in a prior case, involving the same project, which held that Hagler’s lien was inferior to a deed of trust lien held by Continental National Bank of Fort Worth. We conclude that the prior judgment disposed of the identical issue presented in this case, and therefore reverse and render in part.

Appellant contends that Hagler is collaterally estopped from relitigating the issue of removability of the fixtures and that the prior judgment is res judicata to his present action; Hagler contends that he is neither estopped nor barred in the present action because the previous suit involved different parties and sought different relief. Our judgment is based on collateral estoppel.

In applying the rule of collateral estoppel, sometimes called estoppel by judgment, the question is whether the former judgment decides the same issue as that in the present case. Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526 (1930). If so all of the parties need not be the same so long as the party against whom the estoppel is asserted or someone in privity with him is the same. Hardy v. Fleming, 553 S.W.2d 790, 792 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.). See also Benson v. Wanda Petroleum Company, 468 S.W.2d 361, 363 (Tex.1971).

The essential facts giving rise to both cases are fully set out in the opinion of the court of civil appeals in the prior case. Hagler v. Continental National Bank of Fort Worth, 549 S.W.2d 250 (Tex.Civ.App.—Texarkana 1977, writ ref’d n. r. e.). That case was a declaratory judgment action brought by Hagler against the bank, seeking to have his mechanic’s lien declared superior to the deed of trust lien held by the bank. The trial court, finding that the bank’s deed of trust was executed before any materials were delivered or construction began, accordingly declared the bank’s lien to be superior and rendered a judgment that Ha-gler take nothing. The bank’s lien was dated December 26, 1973, and was given to secure a note of the same date for the $555,000.00. The loan was funded the same day, and Crystal Properties, Inc., the maker of the note, used $132,000.00 of the proceeds to purchase the land which was conveyed to Crystal the same day. Hagler’s construction contract with Crystal was dated December 18, 1973, but was not recorded, so that he was compelled to rely upon the start of construction to establish that his affidavit lien originated before, and was therefore superior to, the bank’s lien. Before entry of the trial court’s judgment, Crystal had defaulted on the note, and the bank had foreclosed its deed of trust lien, purchasing the land and improvements at the foreclosure sale. The trial court’s judgment was affirmed in the Hagler v. Continental Bank ease above cited. In affirming, the appellate court noted, 549 S.W.2d at 252:

Appellant concedes that the Bank’s deed of trust was superior to his mechanic’s lien insofar as the $132,000.00 representing the purchase price of the land is concerned and that foreclosure by the Bank effectively extinguished any right of foreclosure he may have had, but he nevertheless contends that his lien is superior to the Bank’s as to any of the foreclosure proceeds in excess of the purchase price, and that he is entitled to judgment against the Bank for $96,673.00 of such excess proceeds.

The court overruled this contention and denied the declaratory relief sought because Hagler had failed to prove that his lien had its inception before the execution of the bank’s deed of trust and was therefore inferior to it.

In the present case, Hagler sued Crystal Properties, Inc. for his debt and joins Windmill Dinner Theatre of Dallas, Inc., the present owner, alleging that he has a mechanic’s lien and constitutional lien and is entitled to foreclosure and order of sale upon the fixtures installed by him during construction which can be removed without substantial injury to the premises. These fixtures consist of numerous items such as lavatories, doors, hot water heaters, and the like. He prays for a determination of the rights, if any, of Windmill Dinner Theatre, Inc. and others, and for money judgment against Crystal. This case was filed by Hagler prior to the Continental Bank case and was pending during the trial and appeal of the latter case.

Windmill acquired title to the property by general warranty deed from Windmill Dinner Theatre, Inc., who, in turn acquired title by general warranty deed from Continental National Bank after its purchase at foreclosure sale.

While the issue of foreclosure upon removable fixtures was not expressly decided in the former case, we conclude that the judgment disposed of it by necessary implication. In the previous case, in addition to Hagler’s pleading that his lien was superior to the bank’s lien because of its alleged earlier inception, he alleged also that he was entitled to a superior constitutional lien upon all removable property installed or placed on the premises as a part of his contract. Without specifically mentioning the alternative pleading, the trial court’s judgment declared that the bank’s lien was superior and expressly denied to Hagler recovery of any part of the excess proceeds. This was sufficient to dispose of the issue by implication. Vance v. Wilson, 382 S.W.2d 107 (Tex.1964).

Where a claim is not expressly disposed of by the judgment, although raised by the pleading, the judgment will be construed as denying relief on such claim. Vance, 382 S.W.2d at 108. In the Vance case, 382 S.W.2d at 109, the Supreme Court quoted from Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77 (1896) as follows:

[Wjhere the pleadings and judgment in evidence show that the pleadings upon which the trial was held put in issue plaintiff’s right to recover on two causes of action, and the judgment awards him a recovery upon one, but is silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover from such other cause.

Chief Justice Calvert stated the rule with respect to disposition of issues by implication in Northeast Independent School District v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966):

When a judgment not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. . it will apply to separate claims of the plaintiff, cross-actions and counterclaims by the defendants against the plaintiff, cross-actions by the defendants against other defendants.

We hold that the judgment in the prior case was an adjudication that Hagler was not entitled to recovery of any part of the $96,073.00 of excess proceeds on any theory, and by implication on the removable fixture theory; that appellant is therefore judicially estopped to relitigate the issue.

Appellee contends that in the previous case, he could not have recovered the relief sought in the present case because Crystal, the owner, was not a party to that suit. The facts of the previous case do not support this contention because the record reflects that Crystal’s interest had been foreclosed and conveyed to Continental prior to the entry of the trial court’s judgment. Crystal, therefore, was not a necessary party to any relief sought in the previous case. We see no reason why Hagler, in his claim for the excess proceeds, could not have prevailed on his alternative plea with respect to the removable fixtures if he had offered the same proof as in this case. Consequently, the absence of Crystal as a party does not affect application of the doctrine of collateral estoppel.

We therefore reverse and render the judgment against Windmill and tax the costs of this appeal against Hagler. The judgment against Crystal is undisturbed.


text:
    Jack G. S. MAXFIELD et al., Appellants, v. NORTHWOOD HOMES, INC., Appellee.
    No. 19849.
    Court of Civil Appeals of Texas, Dallas.
    May 18, 1979.
    Rehearing Denied June 13, 1979.

      Frederick W. Addison, III, Storey, Armstrong, Steger & Martin, Dallas, for appellants.
    Richard F. Martin, Edmund R. Wood, Chancellor & Wood, Anthony Atwell, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   STOREY, Justice.

This is a trespass to try title action brought by appellants to determine ownership of a 16.6 foot strip of land adjoining appellants’ tract on the north and appellees’ tract on the south. The question on appeal is whether this court is bound by the trial court’s finding that the words “passing along,” as used in the deed description, mean “in the direction of” or “parallel to,” thereby extending appellees’ southern boundary and giving them title to the disputed strip. Both parties concede and we agree that the deed description is unambiguous. Because of this, it is to be construed as a matter of law, and we are therefore not bound by the trial court’s finding. We conclude that the words “passing along” call for adjoinder to the northern boundary line of the strip in dispute, and therefore prevail over the courses and distances argued for by appellee. We reverse and render.

The facts are not in dispute. In 1972, J. R. and Jack Maxfield conveyed approximately thirty-nine acres of land to Harmony Homes, Inc. and Marvin Jones. By warranty deed recorded in 1973, Harmony Homes, Inc. and Marvin Jones conveyed the thirty-nine acres to Northwood Homes. The next to last call in the 1972 deed states that the southern boundary of the tract conveyed was to run:

THENCE South 89 degrees 15 minutes 29 seconds West 1548.16 feet passing along the North line of the Jack G. S. Maxfield 5 acre tract to a point for corner in said present East line of Scott Mill Road;

The same language was also used in the 1973 deed, and the emphasized portion gives rise to the dispute. Appellants’ five acre tract borders appellees’ thirty-nine acre tract on the south, and appellants contend that the words “passing along” merely set the north-south boundary line as it existed in 1972.

The trial court made no findings of fact or conclusions of law. Appellee urges on the authority of Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953), that this court may not disturb the trial court’s judgment if there is sufficient evidence in the record to support that judgment. In this case, however, there is no evidence to show the intent of the parties except for the deed description itself. We conclude, therefore, that the trial court’s implied finding that the parties intended to establish a new boundary line was unwarranted. The language in the deed was unambiguous. Had the grantor intended “passing along” to mean “parallel to” or “in the direction of,” unequivocal language to that effect should have been used.

As a general rule, the intention expressed by the language of the deed is controlling even though the parties may have had a different intention and, if the deed is not ambiguous, the instrument will be enforced as written even though it does not express the original intent of the parties. Peterson v. Barron, 401 S.W.2d 680 (Tex.Civ.App.—Dallas 1966, no writ). Because there is no ambiguity, we hold that the words in the deed are to be construed as a matter of law. Guaranty National Bank and Trust of Corpus Christi v. May, 513 S.W.2d 613 (Tex.Civ.App.—Corpus Christi 1974, no writ); High v. Glameyer, 428 S.W.2d 872 (Tex.Civ.App.— Houston [14th Dist.] 1968, writ ref’d n. r. e.). The language in the deed creates an adjoinder, which calls for the land to be measured contiguous to the north boundary line set in the deed. An adjoinder is the equivalent of an artificial monument, and it is a well settled rule of property law that a call for adjoinder controls a call for course and distance. Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801 (1937); Kirby Lumber Co. v. Gibbs Bros. & Co., 14 S.W.2d 1013 (Tex.Comm’n App.1929, holding approved). Upon this reasoning, appellees’ argument that the term “passing along” establishes a new boundary is rejected.

Appellants have orally waived their claim for damages on this appeal. We therefore reverse and render judgment that appellants receive title and possession of the disputed strip.


author: HUMPHREYS, Justice.

text:
    Theodore SHANBAUM, Appellant, v. Margaret JANSSEN, Appellee.
    No. 19934.
    Court of Civil Appeals of Texas, Dallas.
    May 21, 1979.
    Edwin B. Comstock, Dallas, for appellant.

      Wm. Chris Wolffarth, Erhard, Cox & Ruebel, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

This appeal is from a summary judgment granted on the basis of a foreign default judgment. Appellant contends there is a lack of jurisdiction apparent on the face of the summary judgment record. We agree and reverse and remand the judgment.

Janssen, a resident of the Virgin Islands, sued Shanbaum, a resident of Dallas County, Texas, in a municipal court of the Virgin Islands for an alleged debt for wages, overtime, attorney’s fee and costs. Service of summons and complaint was attempted by registered mail. Shanbaum failed to answer and did not appear in person or by attorney. Default judgment was rendered and Janssen brought suit in the district court of Dallas County to enforce that judgment. Both sides moved for summary judgment essentially on the face of Jans-sen’s summary judgment proof, but the record does not show that appellant’s motion was brought to the trial court’s attention.

Shanbaum’s principal contention in the district court and on appeal is a total failure by Janssen to invoke the jurisdiction of the Virgin Islands court over him for want of strict compliance with that court’s order, pursuant to Virgin Islands law, authorizing service of summons and complaint by registered mail in this case. The order provides: “ORDERED that service of the Summons and complaint on the Defendants in the above-captioned action shall be made by Plaintiff’s attorney by registered mail return receipt signed by the addressee or other evidence of personal delivery to addressee requested.” The summary judgment proof filed by Janssen in the district court affirmatively shows that her Virgin Islands attorney did not restrict or even request the delivery of this registered mail to Shanb-aum only, failed to obtain her personal signature on the return receipt and failed to tender any other evidence of actual personal delivery thereof to him. A photocopy of the return receipt in the record shows it was not checked in any space provided sender for any specific mode of delivery and bears only an unidentified signature which does not spell appellant’s name.

When a foreign judgment is authenticated and appears to be a record of a court of general jurisdiction, the court’s jurisdiction is presumed unless disproved by extrinsic evidence or the record. A & S Distributing Co. v. Providence Pile Fabric Corp., 563 S.W.2d 281, 283 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). We hold that the record in this case, which shows that process was not properly served, disproves the presumed jurisdiction of the Virgin Islands’ court.

Appellee argues that appellant fails to show lack of service in the Virgin Islands suit because appellant did not state under oath that he did not personally receive the papers. We hold that appellant did not have this burden. If a defendant is not served in the manner required by law, even if he had actual notice of the suit, the court does not have jurisdiction. Sidran v. Tanenbaum, 391 S.W.2d 93, 95 (Tex.Civ.App.—Dallas 1965, no writ).

Reversed and remanded.


author: ROBERTSON, Justice.

text:
    Loni Rowe DAVIS, Individually and next friend of Stephen Rowe and Lisa Rowe and Deppy DeWitt Jacquess, Appellants, v. DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY OF TEXAS and Dairyland Insurance Company, Appellees.
    No. 19932.
    Court of Civil Appeals of Texas, Dallas.
    May 22, 1979.
    Rehearing Denied June 19, 1979.

      Roger D. Bush, Dallas, for appellants.
    Jeffrey S. Lynch, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appel-lees.
    Before AKIN, ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

This is an appeal from a summary judgment in favor of appellees Dairyland County Mutual Insurance Company of Texas and Dairyland Insurance Company. The trial court held that a prior declaratory judgment barred the claims of appellant-inter-venor, Deppy DeWitt Jacquess, and appellant Loni Rowe (Davis), individually and as next friend of her two minor children because of the doctrines of res judicata and collateral estoppel, respectively. On appeal, appellants challenge the validity of the declaratory judgment, arguing that no justiciable controversy existed at the time the judgment was granted. We hold that a justiciable controversy existed regarding the cancellation of an insurance policy and thus, the declaratory judgment is valid. Accordingly, we affirm.

Jacquess purchased a six-month automobile liability insurance policy from Dairy-land through an agent, Ace Insurance Company, on May 13, 1970. He financed one-half of the premium through Time Installment Acceptance Company which paid Dairyland in full. This premium finance contract stated that Time had a security interest in the policy and the power of attorney to “sign and/or execute any and all notices necessary to effect cancellation of said policy.” Jacquess’ payments to Time were due on the first of June, July and August; he made the first of these but defaulted on the July payment. On July 1, Time sent Jacquess a notice of cancellation and on July 10, Time telephoned Ace and requested cancellation on the policy. Ace sent Jacquess a cancellation notice setting July 21, 1970, as the cancellation date. Jacquess had moved, however, and did not receive this notice. Dairyland sent Ace a refund of the unearned premium to be returned to Jacquess.

On July 30, 1970, Jacquess had a car accident resulting in the death of one of his passengers, Stephen Rowe. On November 18, 1970, Ace contacted the Rowes and informed them that the policy was cancelled. The Rowes brought a wrongful death action against Jacquess in March of 1971. Dairy-land defended Jacquess in this action only after executing a nonwaiver agreement which provided that any investigation or defense undertaken by Dairyland was without prejudice to Dairyland’s right to deny coverage as well as to assert any policy defenses. The trial court granted a judgment for the Rowes in 1972. Being unable to collect that judgment, the Rowes brought this action. Although Jacquess assigned his cause of action against Dairyland to the Rowes on May 6, 1976, he has intervened in this lawsuit.

Dairyland filed a declaratory judgment action in Bell County on July 14, 1971, naming Jacquess and the Rowes as defendants. The Rowes filed an answer but were later non-suited. In its judgment rendered on September 29, 1971, the court held that the insurance policy was cancelled prior to the occurrence of the accident and that no duty to defend existed on the part of Dairy-land.

The principal question on this appeal is whether the declaratory judgment is valid. It is well established that Tex.Rev. Civ.Stat.Ann. art. 2524-1 (Vernon 1965), The Uniform Declaratory Judgments Act does not give a court the power to render advisory opinions or determine questions not essential to the decision of an actual controversy. Firemen’s Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968). Appellants contend that no justiciable controversy existed when the declaratory judgment was rendered since Jac-quess’ liability had not been established at the time of the declaratory judgment suit. To constitute a justiciable controversy for declaratory judgment purposes, there must be a real and substantial controversy involving a genuine conflict of tangible interest rather than a theoretical one. Sub-Surface Construction Co. v. Bryant-Curington, Inc., 533 S.W.2d 452 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.). The question presented to the Bell County District Court was whether the insurance contract had been cancelled prior to the accident. Tex. Rev.Civ.Stat.Ann. art. 2524-1 § 2 (Vernon 1965) states that the question of the validity of a contract is a proper subject for declaratory relief. The question of cancellation was not a theoretical one or one that depended on the occurrence of some future event. All steps necessary to cancel the contract had been taken prior to the filing of the declaratory judgment action and nothing occurring after the rendition of the declaratory judgment could have effected the existence of the issue decided. We hold that whether the contract was cancelled prior to the accident was a justiciable controversy and thus, a proper subject for a declaratory judgment. Therefore, the declaratory judgment is valid.

In Trinity Universal Ins. Co. v. Willrich, 13 Wash.2d 263, 124 P.2d 950 (1942), the Washington Supreme Court dealt with a situation almost identical to the one in this case. In Willrich the insurance company mailed the insured notice of cancellation, but the insured did not receive it until after an accident occurred injuring a third party. The third party sued the insured who was defended by the insurance company under a nonwaiver agreement. Seeking to determine whether the policy had been cancelled, the company filed a declaratory judgment action. The supreme court held that the issue of cancellation was a justiciable controversy and, thus, under the Washington Declaratory Judgment Statute, was a proper question for declaratory relief. The Washington Supreme Court noted in their opinion that “[t]he declaratory judgment law is peculiarly adapted and intended for the settlement of controversies such as that presented here.” 124 P.2d at 953. This case fully supports our holding.

The Rowes’ claims against appellees are derived from the assignment of Jacquess’ claims. Consequently, they can stand in no better position than he did at the time of the accident. Since the insurance contract was cancelled prior to the occurrence of the accident, any claims that Jacquess or the Rowes have are barred by the Bell County declaratory judgment to that effect.

Affirmed.

      . Washington had also adopted the Uniform Declaratory Judgments Act.


author: AKIN, Justice.

text:
    MICHIGAN GENERAL CORPORATION, Appellant, v. MOD-U-KRAF HOMES, INCORPORATED, Appellee.
    No. 19922.
    Court of Civil Appeals of Texas, Dallas.
    May 22, 1979.
    Rehearing Denied June 19, 1979.
    Timothy A. Duffy, Crutcher, Hull, Ramsey & Jordan, Dallas, for appellant.
    William D. Sims, Jr., David W. Elmquist, Jenkens & Gilchrist, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   AKIN, Justice.

The principal question presented on this appeal is whether the assumption of jurisdiction over appellee under Tex.Rev.Civ. Stat.Ann. art. 2031b (Vernon 1964) violates due process. Appellant Michigan General Corporation filed suit for damages in Dallas County, Texas, alleging that appellee Mod-U-Kraf Homes, a Virginia corporation, breached a merger agreement. In response, appellee filed a special appearance under Tex.R.Civ.P. 120a. The trial court sustained appellee’s special appearance and dismissed the lawsuit, holding that appellee was not subject to in personam jurisdiction in a Texas court. We reverse the trial court and hold that to sustain jurisdiction in Texas and require appellee to defend here would not be a denial of due process of law.

Michigan General Corporation is a Delaware corporation which conducts business through numerous subsidiaries in various states. Its principal place of business is in Dallas, Texas. Mod-U-Kraf is incorporated and has its principal place of business in Virginia. It sells modular homes principally in Virginia and West Virginia but has never sold any products in Texas. In 1977, Michigan General Corporation, Mod-U-Kraf, and Michigan General of Virginia, a wholly owned subsidiary of Michigan General Corporation, entered into a merger agreement whereby Michigan General of Virginia would merge into Mod-U-Kraf. Since Michigan General of Virginia was also a Virginia corporation, the proposed merger was to be between two Virginia corporations. Michigan General Corporation was also a party to the merger because each outstanding share of Mod-U-Kraf’s common stock was to be converted into .5 shares of Michigan General Corporation’s preferred stock. Mod-U-Kraf signed the merger agreement in Virginia, and Michigan General Corporation and Michigan General of Virginia signed it in Dallas. According to the merger agreement, Michigan General Corporation was obligated to prepare a S — 14 registration statement to file with the S.E.C. This statement was prepared in Texas but became useless because the merger was aborted by Mod-U-Kraf before its effective date. Michigan General Corporation sued for damages claiming that Mod-U-Kraf wrongfully terminated the merger and, consequently, was liable for expenses incurred by Michigan General Corporation in preparing the merger documents including the S.E.C. registration statement.

, Michigan General Corporation argues that jurisdiction may be acquired over Mod-U-Kraf under Tex.Rev.Civ.Stat.Ann. art. 2031b, §§ 3-4 (Vernon 1964), which read as follows:

3. Any foreign corporation that engages in business in this State and does not maintain a place of regular business in this State or a designated agent upon whom . service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation ... of the Secretary of State of Texas as agent upon whom service of process may be made
4. For the purpose of this Act . any foreign corporation shall be deemed doing business in this State by entering into a contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State . . [Emphasis added.]

Mod-U-Kraf contends, however, that it is not within the literal grasp of article 2031b because it was not doing business in Texas. We cannot agree. Mod-U-Kraf signed the merger agreement with a resident of Texas and that contract was to be partly performed in Texas. Thus, Mod-U-Kraf was doing business in Texas within the ambit of the longarm statute. Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251, 254 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.). Although Mod-U-Kraf is amenable to service of process under article 2031b, this does not necessarily mean that assertion of jurisdiction over it comports with due process. Gubitosi v. Buddy Schoellkopf Products, Inc., 545 S.W.2d 528, 535 (Tex.Civ.App.—Tyler 1976, no writ).

Since the reach of article 2031b is limited only by the Fourteenth Amendment to the United States Constitution, our primary question is whether due process would be violated if jurisdiction is asserted over Mod-U-Kraf. The starting point for analyzing issues concerning longarm statutes and due process is International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945), which held:

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. [Emphasis added.]

The due process test in International Shoe was further explained in Hanson v. Denckla, 357 U.S. 235, 253-254, 78 S.Ct. 1228, 1239-1240, 2 L.Ed.2d 1283, 1298 (1958) as follows:

The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus involving the benefits and protections of its laws. [Emphasis added.]

The Texas Supreme Court in U—Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 763 (Tex.1977), cert. denied, 434 U.S. 1063 (1978) applied the principles of International Shoe and Hanson v. Denckla, and held that an Oklahoma resident could not be required to defend in Texas since his only contact with Texas consisted of executing a contract in Oklahoma which stipulated that payments were to be made in Texas and his subsequent remittance of several payments. Although the Texas Supreme Court utilized two tests in U-Anchor in analyzing whether a court may exercise jurisdiction over a nonresident defendant, it recognized that each case must turn on its own facts because of the vagueness of the constitutional standard. U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978).

The two general tests used by the supreme court in U-Anchor are set forth in Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 494 (5th Cir. 1974), and O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966). The Cousteau test requires that: (1) there must be some minimum contact with the state which results from an affirmative act of the defendant; and (2) it must be fair and reasonable to require defendant to come into the state and defend the action. The O’Brien test requires that: (1) the nonresident defendant must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. It is undisputed that representatives of Mod-U-Kraf came to Texas to discuss the merger agreement, they later signed that agreement, and Michigan General Corporation is suing Mod-U-Kraf for its alleged breach of that agreement. Thus, the first prong of the Cousteau test and the first two prongs of the O’Brien test have been met. This case, therefore, must be analyzed under the last element under both the Cousteau and O’Brien tests, i. e., whether requiring Mod-U-Kraf to defend in Texas would offend traditional notions of fair play and substantial justice.

Michigan General Corporation argues that it would not offend traditional notions of fair play to assert jurisdiction over Mod-U-Kraf because of the nature and extent of Mod-U-Kraf’s contacts with Texas. Mod-U-Kraf’s contacts with Texas stem solely from the merger transaction and include the following: telephone discussions concerning the merger occurred between Mod-U-Kraf’s officers in Virginia and Michigan General Corporation’s officers in Dallas; Mod-U-Kraf’s officers and its attorney travelled to Dallas from Virginia on more than one occasion to discuss the merger; and Mod-U-Kraf’s officers were present in Dallas when officers of Michigan General Corporation signed the merger agreement. Michigan General Corporation points out that the closing of the merger and the exchange of Michigan General Corporation’s preferred stock for Mod-U-Kraf’s common stock were to take place in Dallas. Michigan General Corporation also notes that in preparing the S.E.C. registration statement, all drafting, printing, legal, and accounting activities and expenses were incurred in Dallas and that these expenses are the basis of this suit. In essence, Michigan General Corporation stresses that Mod-U-Kraf entered into a contract that had substantial economic relationships with the State of Texas and that Mod-U-Kraf was physically present in Texas on several occasions.

Mod-U-Kraf, on the other hand, argues that it is unfair and unreasonable to require it to defend in Texas. Mod-U-Kraf emphasizes that its activities in Texas were limited to attending a few negotiating sessions regarding the merger agreement which had absolutely no relation to Texas other than the home office of Michigan General Corporation, the parent corporation of Michigan General of Virginia, happened to be in Texas. Mod-U-Kraf contends that its contacts with Texas were minimal, and it had no expectation or intention of invoking the benefits and protections of Texas law by mere negotiation of a merger agreement in Texas. Mod-U-Kraf stresses that the merger was between two Virginia corporations, and the parties had specifically chosen Virginia substantive law to control the execution, construction, and performance of the merger agreement. Although both merging companies were Virginia corporations, we note that Michigan General Corporation was also a party to the merger since it signed the merger agreement and thereby obligated itself to perform duties in Texas. Mod-U-Kraf bolsters its argument that it would be unfair to require it to defend in Texas since Mod-U-Kraf has never sold any products in Texas, owns no property in Texas, maintains no agents or banking accounts in Texas, and has never earned any money from business done in Texas. Mod-U-Kraf emphasizes that if the merger had taken place, its business would not have changed in any respect; the only difference would be that Mod-U-Kraf would have been controlled by Michigan General Corporation. A Mod-U-Kraf officer testified that Michigan General Corporation initiated the merger negotiations and that Mod-U — Kraf representatives journeyed to Dallas from Virginia approximately three times with one of the trips being at the request of Michigan General Corporation. Mod-U-Kraf also points out that the merger was not to become final until Mod-U-Kraf’s shareholders approved the plan of merger and appropriate filings were made with Virginia authorities.

We hold that under these circumstances it would not offend traditional notions of fair play and substantial justice to require Mod-U-Kraf to defend in Texas. As stated in In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 226 (6th Cir. 1972):

An essential element of such “fairness” in our society has always been that a person is not asked to bear a special burden (such as defending in a foreign forum) unless he has done something in a purposeful manner or with such knowledge as to make his deeds the equivalent of purposeful action. The Hanson v. Denck-la requirement is simply designed to avoid the situation where the “unilateral activity” of the plaintiff can drag an unsuspecting and unwilling defendant into a foreign forum. [Emphasis added.]

Here, the facts show that Mod-U-Kraf knowingly did purposeful acts in Texas with a Texas resident, i. e., Mod-U-Kraf actively negotiated the merger agreement in Texas with Michigan General Corporation. Mod-U-Kraf, therefore, cannot claim that the only activity in the forum was the unilateral activity of the plaintiff, nor can Mod-U-Kraf claim that it is an unsuspecting defendant similar to the defendants in Hanson v. Denckla and U-Anchor Advertising, Inc. v. Burt. Mod-U-Kraf’s contacts with Texas through its negotiations and ultimate contract with Michigan General Corporation were apparently designed to produce a benefit from a business transaction undertaken in this state. Obviously, Mod-U-Kraf must have believed that it would derive substantial economic benefit from its excursions to Texas. Thus, Mod-U-Kraf’s contacts with Texas were by no means minimal or fortuitous, but instead, were active and purposeful. In view of Mod-U-Kraf’s purposeful contacts with Texas, it is not unfair to require it to defend in Texas. See Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951, 956 (2nd Cir. 1967); National Gas Appliance Corp. v. AB Electrolux, 270 F.2d 472, 475 (7th Cir. 1959), cert. denied, 361 U.S. 959, 80 S.Ct. 584, 4 L.Ed.2d 542 (1960). Cf. Dennett v. First Continental Investment Corp., 559 S.W.2d 384 (Tex.Civ.App.—Dallas 1977, no writ) (negotiations concerning contract occurred in Texas but jurisdiction not asserted under article 2031b because contract not consummated in Texas and no part of contract performable in Texas).

Mod-U-Kraf’s physical presence in Texas on three separate occasions should have alerted it to the possibility that Michigan General Corporation would seek the protections and benefits of Texas law. Even though the merger agreement provided that Virginia substantive law would control its interpretation, this does not mean that the parties had no expectation of invoking the jurisdiction of Texas courts, particularly in light of the parties’ physical contacts with this state. As the court stated in In-Flight Devices Corp. v. Van Dusen Air, Inc.: “the nature of the direct physical contacts between defendant and plaintiff may be useful in a close case as a gauge of the significance the parties attach to the events occurring in the forum state and thus of their expectations.” 466 F.2d at 235.

Our holding is supported by Thompson v. Ecological Science Corp., 421 F.2d 467, 470 (8th Cir. 1970). In that case, the out-of-state party over which jurisdiction was sought, conducted a two-day negotiating conference in Arkansas and made several minor telephone calls to Arkansas to complete the agreement. Although the initial draft of the parties’ agreement was prepared in Arkansas, the contract was executed in Florida. In holding that due process was satisfied in maintaining jurisdiction over the nonresident in Arkansas, that court focused on the fact that the claim for relief related directly to the activities conducted in Arkansas. The court noted that a nonresident’s contact with the forum state becomes constitutionally significant when it gives rise to the claim involved in the lawsuit, and the forum state has a special interest in protecting the rights of its citizens under a contract negotiated in the forum state. 421 F.2d at 470. Here, of course, not only did negotiations take place in Texas but the contract was finalized in Texas. The very cause of action asserted in our case, recovery of the registration expenses, arose out of Mod-U-Kraf’s contacts with Texas. Moreover, Mod-U-Kraf knew that Michigan General Corporation would incur these expenses in Texas.

In summary, Mod-U-Kraf’s purposeful relationship with this state through its dealings with Michigan General Corporation make it fair and reasonable for a Texas court to assert jurisdiction over it. Accordingly, the judgment of the trial court sustaining the special appearance is reversed and this cause is remanded for trial on the merits.

      . See generally Comment, The Texas Long-Arm Statute, Article 2031b: A New Process Is Due, 30 S.W.L.J. 747, 760 (1976); Note, 15 Hous.L.Rev. 1054, 1071 (1978).


author: HUTCHINSON, Justice.

text:
    Rosemary HOLDER and Texas Department of Human Resources, Appellants, v. Donald Mack HOLDER, Appellee.
    No. 8665.
    Court of Civil Appeals of Texas, Texarkana.
    May 22, 1979.

      Arthur L. Luethcke, State Dept, of Human Resources, Paris, Pat F. Beadle, County Atty., Clarksville, for appellants.
    Jim Hooper, Harkness, Friedman, Kusin & Hooper, Texarkana, for appellee.
   HUTCHINSON, Justice.

This parent-child relationship case was filed by Rosemary Holder and Texas Department of Human Resources on November 30, 1977, to establish the paternity of a minor child and the corresponding obligation for its support. An initial hearing before the court was had on December 16, 1977, and additional hearings were had on March 6, 1978, and June 28, 1978, and the judgment sought to be appealed from was signed and entered on June 29, 1978. A timely notice of appeal was filed along with an affidavit by Rosemary Holder of her inability to pay the costs of appeal or to give security therefor. This affidavit was challenged and upon hearing the trial court found and entered its order that Rosemary Holder was financially unable to pay the costs of this appeal or make bond therefor. The transcript was timely filed in this Court and thereafter five requests for extensions of time in which to file the statement of facts have been filed and granted. In the meantime, the term of office of the then presiding district judge expired and the reporter recording these proceedings was replaced and is no longer the official court reporter. Her affidavit to that effect has been here filed wherein she firmly refuses to prepare the statement of facts without payment therefor or the filing of a bond for costs.

Rosemary Holder and Texas Department of Human Resources, represented here by the County Attorney of Red River County and a staff attorney for the Texas Department of Human Resources, now seek to have the cause remanded for a retrial upon the basis of their inability to obtain a statement of facts.

Donald Mack Holder opposes the remand upon the ground that the Texas Department of Human Resources has not paid or offered to pay the former court reporter for the preparation of the statement of facts nor has it filed a bond for costs.

Appellants’ brief in support of the motion to remand does not discuss the failure of the Texas Department of Human Resources to file an appeal bond or pay the reporter and thereby obtain the statement of facts. Apparently, appellants, insofar as the Texas Department of Human Resources is concerned, are relying upon the provisions of Article 2276, Tex.Rev.Civ.Stat.Ann., which reads in part as follows:

“Neither the State of Texas, nor any county in the State of Texas, nor the Railroad Commission of Texas, nor the head of any department of the State of Texas, prosecuting or defending in any action in their official capacity, shall be required to give bond on any appeal or writ of error taken by it, or either of them, in any civil case.”

Appellants in support of the motion to remand cite the following cases: Minyard v. Southern Pipe & Supply Co., Inc., 563 S.W.2d 332 (Tex.Civ.App. Dallas 1978, no writ) (no reporter present); Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978) (no reporter present); Sherman v. Philips Industries, Inc., 560 S.W.2d 154 (Tex.Civ.App. Houston-1st Dist. 1977, no writ) (no reporter present); Waller v. O’Rear, 472 S.W.2d 789 (Tex.Civ.App. Waco 1971, writ ref’d n. r. e.) (reporter’s notes lost). Additional recent cases addressing the problem are: Stemco Manufacturing Co., Inc. v. Louis Delhomme Marine, Inc., 573 S.W.2d 566 (Tex.Civ.App. Houston-1st Dist. 1978, writ ref’d n. r. e.) (reporter’s notes lost); Rott v. Browne, 570 S.W.2d 67 (Tex.Civ.App. Dallas 1978, no writ) (reporter’s notes lost); Miller v. Miller, 569 S.W.2d 592 (Tex.Civ.App. San Antonio 1978, no writ) (no reporter present); Oliver v. Oliver, 567 S.W.2d 914 (Tex.Civ.App. Houston-14th Dist. 1978, no writ) (no reporter present); Garcia v. Kelly, 565 S.W.2d 112 (Tex.Civ.App. Corpus Christi 1978, no writ) (no reporter present); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App. Dallas 1975, writ ref’d) (no reporter present).

In each of the above cited cases, the record of the evidence was not available and could not be made available. Here the record is available, lacking only for payment or assurance of payment for its transcription. A judicial determination of Rosemary Holder’s inability to pay for the transcription or to post a cost bond therefor has been made and that determination is not questioned here. Therefore the question before the Court is whether or not this matter must be remanded upon motion of a state department for retrial simply because of its insistence upon a strict compliance with Article 2276, supra. We think not. It should be noted that such article does not prohibit the making of a cost bond by an agency of the state. It merely prohibits the requirement that a cost bond be made. This Court will abide by such legislative mandate. In doing so, however, the observation will be made that at least one of the purposes for the enactment of the article was to avoid the additional expense of a cost bond. If this attempted appeal is well founded, that purpose will be defeated by a remand for a second trial, the first of which required the services of two attorneys and at least four court appearances.

Here the statement of facts is available to appellants. Each of the above cited cases as a basis for remand has made the requirement that the party seeking the remand must affirmatively show that it has exercised due diligence and through no fault of its own cannot obtain a statement of facts. No such showing has here been made. In fact, the contrary has been established by appellants. Therefore, appellants’ motion to remand for another trial is denied. However, appellants are granted an additional thirty (30) days in which to file in this Court the statement of facts. Upon failure to do so this appeal will be considered without the aid of the statement of facts.

Appellants, Rosemary Holder and Texas Department of Human Resources, having shown that the court reporter’s notes have been lost through no fault or lack of diligence on their part and that a complete statement of facts is essential for the review of their points on appeal, now move this Court to reverse and remand this cause for a new trial. The motion is granted. Stemco Manufacturing Company, Inc. v. Louis Delhomme Marine, Inc., 573 S.W.2d 566 (Tex.Civ.App. Houston-1st Dist. 1978, writ ref’d n. r. e.); Waller v. O’Rear, 472 S.W.2d 789 (Tex.Civ.App. Waco 1971, writ ref’d n. r. e.).

The judgment of the trial court is reversed and the cause remanded for a new trial.


author: WARREN, Justice.

text:
    UNNAMED MEMBERS OF the CLASS, Appellant, v. Don E. McMAHON, Ed McMahon Interests, Inc., and Karen McMahon Wharton, Appellees.
    No. 17426.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 24, 1979.

      Morris & Campbell, Rhett G. Campbell, Van E. McFarland, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Tom Alexander, Austin & Arnett, Monroe Northrop, Houston, for appellees.
    Before EVANS, WALLACE and WARREN, JJ.
   WARREN, Justice.

The unnamed members of the class, through the attorneys of record for the named representatives, have attempted to appeal an order of the trial court decertify-ing a class action. At the time this attempted appeal was taken, no disposition of the named representatives’ rights had been made. The appellees requested that the appeal be dismissed because the trial court’s decertification order was interlocutory. Thereafter, the appellants filed a motion seeking leave to file a supplemental transcript showing that a final judgment disposing of the named representatives’ rights had been rendered subsequent to their appeal of the decertification order.

Two issues are presently before the court for consideration: (1) whether a class decer-tification order is an order from which an appeal can be perfected and (2) assuming arguendo that a class decertification order is an interlocutory order, whether a premature appeal can ripen by the subsequent rendition of a final judgment. We answer both questions in the negative.

I.

Appeal From Class Decertification Order

Appellants contend that a decertification order can be immediately appealed. For this proposition, the appellants rely on Vargas v. Allied Finance Co., 545 S.W.2d 231 (Tex.Civ.App.-Tyler 1977, writ ref’d n. r. e.). The Vargas litigation was instituted as a class action pursuant to Section 17.52(d) of the Texas Deceptive Trade Practices Act which expressly provided that the class determination was an interlocutory order which could be appealed. In Vargas, the named representative failed to seek review of the order within the time prescribed by Tex.R.Civ.P. 385. Vargas is inapplicable to the instant case.

Appellants further assert that the order is final because it determines that the members of the class cannot remain parties to the action. A final judgment determines the rights of the parties and disposes of all the issues involved so that no future action by the trial court will be necessary in order to settle and determine the controversy. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956); 4 McDonald, Texas Civil Practice, § 17.03.1, 17.03.2 (1971) and cases cited therein. Conversely, an interlocutory order determines less than all the issues as to all the parties thus leaving something further to be determined and adjudicated by the court in disposing of the parties and their rights. 4 McDonald, Texas Civil Practice, § 17.03.1 at 36-37 (1972) (quoting Kinney v. Tri-State Tel. Co., 222 S.W. 227 (Tex.1920). In the instant case, the decertifica tion order did not determine the rights of the named parties. Moreover, Rule 42 explicitly states, “An order under this subsection may be altered or amended before a decision on the merits.” Tex.R.Civ.P. 42(e). Thus, the rule recognizes that a determination of class action status is not final or irrevocable. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Ruman v. Eskew, 343 N.E.2d 806 (Ind.App.1976). For these reasons, we hold that a decertification order is not a final order within the meaning of Tex.Rev.Civ.Stat.Ann. art. 2249 (Vernon 1971).

Moreover, we refuse to fashion a judicial exception to the final judgment rule. This rule serves many valid purposes some of which are the prevention of piecemeal review, the preservation of the litigant’s resources, the preservation of judicial resources, and the maintenance of the appropriate relationship between the trial and appellate courts. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Additionally, a right to review of a class determination may indulge the appellate court in a futile exercise because the trial court has the power to alter or amend its previous determinations at any time before the merits are decided.

Finally, the legislature has the power to confer jurisdiction on appellate courts to review interlocutory orders. By enacting statutes giving the appellate tribunal jurisdiction to review orders sustaining a plea of privilege, appointing a receiver or trustee, refusing to vacate the appointment of a receiver or trustee, and granting or denying class action status in deceptive trade practice cases, the legislature has exercised this power. See e. g. Tex.Rev.Civ.Stat.Ann. arts. 2008, 2249-2251; Tex.Bus. & Comm. Code 17.52(d) repealed by Acts of 1977, 65th Legislature, p. 605, ch. 216 § 11. The legislature is in the better position, after obtaining guidance from a wide variety of sources, to determine whether class action determinations should be subject to immediate appellate review, and we defer to legislative action. But see Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (Pa.1975).

II.

“Ripening” of Premature Appeal

The next issue is whether a pre-mature appeal can ripen, and as a consequence, confer appellate jurisdiction. The majority of foreign jurisdictions hold that a premature appeal is completely ineffective and cannot ripen. See Johnson v. Assured Employment, Inc., 277 Or. 11, 558 P.2d 1228 (1977) and cases cited therein. Prior to the adoption of Tex.R.Civ.P. 306c, Texas authorities adhered to the majority position. See, e. g. Jones v. Kuhn, 139 Tex. 125, 161 S.W.2d 778 (1942); Batson v. Bentley, 297 S.W. 769 (Tex.Civ.App.-Amarillo 1927, no writ). Tex.R.Civ.P. 306c changes the case law as it pertained to premature appeal bonds, notices of appeal, limited notices of appeal, and motions for new trial.

This rule, however, is inapplicable to the instant case, because it only applies to the judgment complained of. See Wilson v. Worley, 562 S.W.2d 22 (Tex.Civ.App.-Waco, 1978, writ ref d n. r. e.); Dickson & Associates v. Brady, 530 S.W.2d 886 (Tex.Civ.App.-Houston 1st Dist. 1975, no writ); Home Fund, Inc. v. Denton Federal Savings & Loan Ass’n., 485 S.W.2d 845 (Tex.Civ.App.-Fort Worth 1972, no writ); Dubert v. Adkins, 475 S.W.2d 383 (Tex.Civ.App.-Corpus Christi, no writ).

The motion for leave to file a supplemental transcript is denied and the motion to dismiss this appeal for want of jurisdiction is granted. Because of the disposition of the appeal on the above grounds, it is not necessary to consider whether the attorneys for the named representatives have standing to perfect this appeal on behalf of the unnamed members of the class.

EVANS and WALLACE, JJ., also sitting.


text:
    Annie GARRISON, et vir, Appellants, v. GULF BOWL, INC., et al., Appellees.
    No. 1432.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 24, 1979.
    Rehearing Denied June 13, 1979.
    Mrs. Annie Garrison, pro se.
    F. Van Huseman, Maddin, White & Brin, Inc., Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

Annie Garrison, joined by her husband, Bob L. Garrison, sued Gulf Bowl, Inc., Gulf Bowl, Philip M. Wallock and William Wal-lock for personal injuries Mrs. Garrison claimed to have sustained in September of 1972 when she tripped and fell at the premises of Gulf Bowl, Inc. The defendants answered with a general denial and a plea of contributory negligence. The case was tried before a jury. At the conclusion of the trial the court granted an instructed verdict as to defendants Gulf Bowl and William Wallock for the reason that Gulf Bowl was not an entity in any way' connected with matters made the basis of the suit, and William Wallock was a shareholder of Gulf Bowl, Inc. The case as to the remaining defendants, Gulf Bowl, Inc. and Philip Wallock, manager of Gulf Bowl, Inc., was submitted to the jury on special issues. The jury found that Gulf Bowl, Inc. and Philip Wallock were not negligent and that Annie Garrison failed to keep a proper lookout. Judgment was rendered that plaintiffs take nothing. The plaintiffs appeal.

The plaintiffs appeared pro se in the trial court and here on appeal. The plaintiffs decided not to file a statement of facts although almost all of their thirty points of error are based on evidentiary grounds or matters affecting the course of the trial that would be shown in the record. The Supreme Court in The Englander Co., Inc. v. Kennedy, 428 S.W.2d 806 (Tex.Sup.1968), stated:

“The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.”

The plaintiffs filed three motions for extensions of time to file the statement of facts. After the statement of facts had been completed, they chose not to file the same. This court has held on numerous occasions that where there is an absence of a statement of facts, it must be assumed that the record on appeal would support the judgment of the trial court. This presumption prevails in favor of the trial court’s judgment, and this Court cannot disturb it in the absence of fundamental error. Franke v. Franke, 373 S.W.2d 891 (Tex.Civ.App.—Corpus Christi 1963, no writ). See also Holliday v. Holliday, 453 S.W.2d 512 (Tex.Civ.App.—Corpus Christi 1970, no writ); White v. Corpus Christi Little Miss. Kick Ass’n, 526 S.W.2d 766 (Tex.Civ.App.—Corpus Christi 1975, no writ). We have reviewed all of the record that is before us, and do not find that there has been presented any questions of law that would be of importance to the public in general as distinguished from the parties to this appeal.

During oral argument, Mrs. Garrison, acting for herself and her husband, contended that she could not obtain a correct statement of facts. This Court has considered this problem in detail when granting the three extensions of time in order to obtain the statement of facts. In an order to the plaintiffs, we suggested to the trial judge that a hearing in accordance with Rule 377(d), T.R.C.P., might be necessary to assist the plaintiffs in obtaining an authenticated statement of facts. Two such hearings were conducted by the trial judge. The plaintiffs have filed a motion to include the transcribed record of the first hearing as a part of the record before us. We now grant this motion.

Five of appellants’ thirty points of error concern her inability to obtain a corrected statement of facts. We have reviewed the entire transcribed record of the Rule 377(d) hearing by the trial judge, and find that the trial court had gone out of its way to help and assist the plaintiffs in obtaining a statement of facts. The trial court committed no error and in fact is to be commended for its patience and understanding in dealing with a party unfamiliar with the rules of appellate procedure law. The plaintiffs’ problem rests primarily in their own misunderstanding of the appellate process.

The Supreme Court of the United States has said:

“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with the relevant rules of procedural and substantive law.” Faretta v. California, 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).

The Supreme Court of Texas after quoting from the above citation, stated it more succinctly.

“There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel.” (Citing authority). Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex.Sup.1978).

The next complaint by which the plaintiffs base reversible error in five points of error was their inability to place into evidence certain depositions of their doctors and other parties. The record shows that the trial court granted the defendants’ motion in limine which went to: “Any hearsay statements by physicians made to plaintiff, plaintiff’s family or other physicians concerning plaintiff’s physical condition.” The plaintiff appellants filed a motion in this Court requesting that the depositions transmitted to this Court be made a part of the record on appeal. We conditionally granted the motion ordering the original depositions to be marked by our Clerk as “received” stating: “Such depositions may be treated by this Court as being an informal bill of exception to be considered with the statement of facts (when and if the statement of facts is actually authenticated and filed herein).” Where a motion in limine is granted, a judgment will not be reversed unless certain questions or evidence were offered and procedural steps taken and, where necessary, a bill of exception made. See Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331 (Tex.Sup.1963). Since the plaintiffs have failed to file their statement of facts, we have nothing to receive.

Having considered all of the record that is before us, we find no reversible or fundamental error. Appellants’ points of error have been considered and are all overruled. The judgment of the trial court is AFFIRMED.


author: PER CURIAM.

text:
    Fradesvinda O. ESCAMILLO, Appellant, v. Dr. E. Ray STRONG et al., Appellees.
    No. 1544.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 24, 1979.

      Benton Musslewhite, Houston, for appellant.
    Charles E. Sweetman, San Antonio, William L. Morrow, Brownsville, for appellees.
   OPINION

PER CURIAM.

Appellant filed a motion to extend time to file the statement of facts in this cause on April 11, 1979. The motion states the judgment was entered February 8, 1979, and the appeal bond was filed March 1, 1979. The record was due to be filed in this Court on or before April 9, 1979, unless the time had been extended. Rules 386 and 21c, T.R.C.P.

The motion requests an extension of time for filing the statement of facts, but does not specifically make such a request in regard to the transcript. The only reference to the transcript is in paragraph II which includes the statement, “A copy of the transcript is in our hands awaiting the signature of opposing counsel.”

A motion which requests additional time for filing a specific instrument does not authorize similar relief for other instruments. The facts in Cook v. Hudson, 558 S.W.2d 522 (Tex.Civ.App.—Eastland 1977, no writ) were almost identical to the case before us. The judgment in Cook was affirmed on certificate where the transcript was not timely filed, and a motion for extension of time covered only the statement of facts. It is well settled that a motion to extend time operates as a basis for extending the time to file the entire record only where the motion includes a request for both the transcript and statement of facts. Embry v. Bel-Aire Corp., 502 S.W.2d 543 (Tex.Sup.1973); Hill Chemicals Co. v. Miller, 462 S.W.2d 568 (Tex.Sup.1971); Duncan v. Duncan, 371 S.W.2d 873 (Tex.Sup.1963); Anzaldua v. Richardson, 279 S.W.2d 169 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.). We find that the motion does not request an extension of time to file the transcript.

If, however, appellant’s motion could be so liberally construed to cover the transcript as well as the statement of facts, we nevertheless dismiss the appeal. The local rules of this Court require motions to be verified and where, as here, the delay is attributed to the court reporter’s inability to timely complete the statement of facts, the motion must include an affidavit from the court reporter. See Continental Oil Co. v. Dobie, 552 S.W.2d 183 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). Appellant’s motion is not verified nor does it contain a court reporter’s affidavit.

Appellant’s motion to extend time to file the statement of facts is denied. The appeal is dismissed.


author: McKAY, Justice.

text:
    O. R. TRUBELL, Individually and d/b/a Gulf Specialties Manufacturing Company, Appellant, v. J. W. PATTEN, Appellee.
    No. 1207.
    Court of Civil Appeals of Texas, Tyler.
    May 24, 1979.
    Rehearing Denied June 21, 1979.

      Paul W. Jones, Jr., Jones, Davis & Craig, Austin, for appellant.
    Page I. Austin, Vinson & Elkins, Eleanor Swift Glass, Paul E. Stallings, Houston, for appellee.
   McKAY, Justice.

This is a legal malpractice ease resulting in a directed verdict and judgment for ap-pellee. Appellant, O. R. Trubell, individually and d/b/a Gulf Specialties Manufacturing Co., was a manufacturer of adhesive compounds in Houston. Among others, one type of adhesives he made was solvent-based and highly flammable. He sold his adhesives to various customers, including, in 1968, General Refrigeration & Supply Co. The latter bought the adhesive in 55-gallon drums and repackaged it in one-gallon containers for distribution. The type sold to General Refrigeration contained a highly volatile solvent, hexzane, as a basic ingredient. George Chandarlis worked for an air conditioning company which had purchased the hexzane-based adhesive from General Refrigeration. While using the adhesive in the attic of a house, Chandarlis was seriously injured when the can of adhesive exploded.

Chandarlis brought suit against appellant in 1970 for personal injuries and resultant damages in the amount of $500,000. Aetna Insurance Co., with whom appellant had a $25,000 policy of liability insurance, retained the services of J. W. Patten, appellee here, to defend its and appellant’s interests. It appears that Aetna informed appellant that the suit against him was for an amount in excess of the policy limits and that he had the right to hire his own attorney to protect his interests. Pursuant thereto, appellant did retain his personal attorney, James Bobbitt, in July 1971, and both Bobbitt and Patten worked on the case. Texas Employers Insurance Association intervened, claiming rights by subrogation to any recovery by Chandarlis to the extent of more than $32,000 for recoupment of worker’s compensation benefits paid to Chandarlis.

A letter dated April 18, 1973, was sent by Chandarlis’ attorney to appellee, indicating that he and his client would offer to settle for $225,000, suggesting that appellee advise appellant of his rights under the Stow-ers doctrine [G.A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex.Comm’n App.1929, holding approved)], and alternatively offering to settle for the limits of appellant’s insurance policy. Apparently, Chandarlis’ attorney, Joe Steel-man, was under the impression that the policy limits were $100,000. It appears that it was the consensus among the defense lawyers involved that appellant’s exposure to liability was serious. Appellee apparently forwarded Steelman’s letter to Aetna and took no further action with regard to it. Bobbitt informed appellant of Steel-man’s letter and prepared a letter from appellant to Aetna in May 1973, demanding that Aetna settle for the policy limits. In October 1973, Aetna made an offer of $25,-000 to Chandarlis which was refused.

In January 1974, immediately prior to the time the Chandarlis case was set for trial, the court suggested that the parties attempt to settle the case. The following day settlement negotiations were conducted, ap-pellee indicating that Aetna would tender the policy limits, and Bobbitt securing a settlement on such terms that appellant was required to pay $35,000 in excess of the policy limits.

Appellant commenced the instant action in July 1974. Appellee, in July 1975, propounded interrogatories to appellant pursuant to Rule 168, T.R.C.P., requesting the names of all expert witnesses known to appellant or his attorney who might be called in behalf of appellant, requesting copies of any reports made by such expert witnesses, and asking if appellant were willing to supplement his answers thereto. In response, appellant stated that he knew of no such expert witnesses but that he and his attorney agreed “to provide the name and address of such expert witnesses at such time as they are known and prior to trial so as not to surprise [appellee];” appellant further stated, “it is agreed that these answers will be supplemented prior to trial of this cause.”

On two or three occasions thereafter, ap-pellee or Aetna became aware of appellant’s intention to use certain persons as expert witnesses, necessitating requests for continuance to allow time for deposing of such witnesses by appellee and Aetna. On each occasion, appellant withdrew his intention to so use such witnesses.

In due course, this case came on for trial in the court below. The voir dire of the jury panel took place the first day, and during the noon recess on the second day, appellant and Aetna reached a settlement agreement whereby Aetna was dismissed as a party to the suit, leaving only appellee as a party defendant. Following the trial court’s approval of the settlement with Aet-na, the matter of appellant’s use of Steel-man and Bobbitt as expert witnesses to testify regarding acts or omissions of professional negligence by appellee, was discussed, resulting in a ruling by the court to exclude such testimony. Appellant thereupon made a bill of exception, Steelman testifying, out of the presence of the jury, to several acts or omissions by appellee which, Steelman opined, constituted negligence, viz., appellee’s failure to know the coverage limits» of appellant’s policy with Aetna when the purported settlement offer was made via Steelman’s letter; appellee’s failure to respond to said offer or take any other action with respect thereto other than forwarding it to Aetna; appellee’s failure to discuss the seriousness of the situation with appellant; appellee’s failure to adequately review the case prior to trial so as to be able to properly advise appellant regarding his chances of prevailing at trial. The jury was then returned to the courtroom and the trial proceeded, with Steel-man testifying before the jury as merely a fact witness.

At the close of appellant’s case, appellee moved for an instructed verdict on the grounds that there was no evidence of negligence on his part nor that any act or omission of his was a proximate cause of any alleged damages; that an attorney retained by an insurer to defend its policyholder has no duty to settle, i. e., the Stow-ers doctrine applies not against an attorney but only against the insurer; and that the settlement offer was not valid. The trial court agreed that appellee was entitled to judgment as a matter of law and instructed a verdict accordingly. Judgment was entered that appellant take nothing.

Appellant duly perfected his appeal and predicates it upon a single point of error. He complains that the trial court erred and abused its discretion in refusing to allow him to present the expert testimony of Steelman to the jury. Appellant admits that, as late as one week prior to trial, he had been unable to secure an expert witness and had so advised appellee. It is appellant’s contention that appellee suffered no surprise with regard to the proffer of Steel-man as an expert witness, in addition to his being used as a fact witness. “In the interest of justice and on the basis of good faith,” appellant states, such testimony should have been admitted because appellant “had exhausted all avenues as to locating and having other witnesses as to this issue and that at the time the decision was made to use such witness for such purposes Appellee’s counsel was made aware of such fact.” Appellant further contends that the surprise and harm claimed by appellee cannot outweigh the prejudice to appellant of excluding the evidence because, without it, appellant had no basis for requesting a special issue on negligence. Appellant cites no authorities in his brief.

Appellee’s rejoinder consists of three counterpoints. First, he argues that the trial court properly exercised its discretion in excluding the expert testimony, citing appellant’s response to his interrogatories and appellant’s failure to inform him of the proposed use of Steelman as an expert witness until the second day of trial, which, appellee claims, unfairly surprised and prejudiced him and violated appellant’s agreement to supplement under Rule 168. Although appellee had deposed Steelman, he argues that, in reliance on said rule and agreement, he deposed him merely as a fact witness and not as an opinion witness with respect to the issue whether appellee’s conduct constituted negligence; therefore, he contends, he was surprised and unprepared to meet the proffered expert testimony. In his second counterpoint, appellee argues that without expert testimony on the issue of negligence, appellant was not entitled to have the case submitted to the jury; thus, the verdict was correctly instructed because there was no evidence of negligence. Finally, appellee asserts in his third counterpoint that even had Steelman’s expert testimony been admitted, there was no evidence that any act or omission by appellee proximately caused appellant any damage. The contention there is that appellant must show that he had a meritorious defense to the original suit, by virtue of which, but for appellee’s alleged negligence, appellant would have obtained a more favorable result, i. e., that a settlement within policy limits would have been secured, and that appellant failed to demonstrate this. Ap-pellee further contends that the Steelman letter was not a valid offer to settle within policy limits, because Steelman had no authority to settle on behalf of Texas Employers Insurance Association, and had no authority to settle the suit without the consent of his client, Chandarlis. Steelman did not represent Texas Employers and Chan-darlis had never consented to the offer of settlement.

When, under the evidence produced at trial before the jury, a party is entitled to a verdict as a matter of law, the court, on its own motion or that of a party, may instruct the jury as to the verdict it must return or may withdraw the case from the jury and render judgment. 3 McDonald, Texas Civil Practice, sec. 11.25 at p. 226 (1970).

Rule 168, T.R.C.P., entitled “Interrogatories to Parties,” states in part,

“Interrogatories may relate to any matters which can be inquired into under Rule 186a . . . . A party may be required in his answers to identify each person whom he expects to call as an expert witness at the trial and to state the subject matter concerning which the expert is expected to testify.
“A party whose answers to interrogatories were complete when made is under no duty to supplement his answers to include information thereafter acquired, except as follows: (1) a party is under a duty seasonably to amend his answer if he obtains information upon the basis of which . (b) he knows that the answer though correct when made is no longer true and the circumstances are such that a failure to amend the answer is in substance a knowing concealment; and (2) a duty to supplement answers may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior answers.”

Specific provision is made for remedial action to be taken where the party to whom interrogatories are addressed refuses to answer them, including application to the court for an order compelling an answer and authorization for the court to act under Rule 215a(a) and (b) where the order is not complied with. Provision is also made where a party, “except for good cause shown,” fails to answer interrogatories after proper service thereof, including authorization to the court to make proper orders, including those authorized by Rule 215a(c). The action that may be taken by the trial court under these circumstances, under Rule 215a, includes the exclusion of evidence offered by the offending party.

Although there is a specific requirement for supplementation of answers to interrogatories provided by Rule 168, there is no specific provision allowing remedial action by the court for a failure to comply with the requirement to supplement. It is clear, however, that the imposition of penalties or sanctions for failure or refusal of a party to comply with discovery rules, or orders made pursuant thereto, is directed to the sound discretion of the trial court, and that the court’s action can be set aside only upon a showing of a clear abuse of discretion. United States Leasing Corp. v. O’Neill, Price, Anderson & Fouchard, Inc., 553 S.W.2d 11, 13 (Tex.Civ.App.-Houston [14th Dist.] 1977, no writ); Young Companies, Inc. v. Bayou Corp., 545 S.W.2d 901, 902 (Tex.Civ.App.-Beaumont 1977, no writ); Ebeling v. Gawlik, 487 S.W.2d 187, 189 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ); Hankins v. Haffa, 469 S.W.2d 733, 737-8 (Tex.Civ.App.-Amarillo 1971, no writ).

In Rule 26, Federal Rules of Civil Procedure, entitled “General Provisions Governing Discovery,” paragraph (e) provides for supplementation of responses and is similar to our Rule 168. It provides generally that there is no duty to supplement responses except as follows:

“(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to . (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
“(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which .
(B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
“(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.”

The Note of the Advisory Committee on Rules pertaining to the 1970 amendment to Rule 26 states,

“The duty [to supplement responses] will normally be enforced, in those limited instances where it is imposed, through sanctions imposed by the trial courts, including exclusion of evidence, continuance, or other action, as the court may deem appropriate.” [Emphasis added.]

We see no good reason to take a different view for our own practice, which derives from the Federal Rules. See Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670, 674 (1955). We hold, therefore, that it is within the sound discretion of the trial court to impose sanctions or penalties as it deems appropriate, including the exclusion of evidence, where a party has failed or refused to seasonably supplement his answers to interrogatories in accordance with Rule 168, supra. See also Texas Employers Insurance Association v. Thomas, 517 S.W.2d 832, 834-5 (Tex.Civ.App.-San Antonio 1974, writ ref’d n. r. e.).

We now come to the question whether the trial court in the instant case abused its discretion in excluding the testimony of an expert witness proffered by appellant. Appellant, in his answers to ap-pellee’s interrogatories, expressly agreed “that these answers will be supplemented prior to trial of this cause.” In argument before the trial court, appellant’s counsel admitted that appellant had agreed and was obligated to supplement his answers to interrogatories requesting the identification of any expert witnesses he planned to call, that he never designated Steelman as an expert witness, that he had assured appel-lee’s counsel as late as one week prior to trial that he had no expert witnesses, and that Steelman had been examined during his deposition as a fact witness only. Ap-pellee contends that he prepared his case and announced ready for trial in reliance on appellant’s obligation to supplement his answers, that he did not take Steelman’s deposition as an opinion witness, and that he therefore had no opportunity to prepare to meet Steelman’s testimony as an opinion witness. Although appellant admits that he had no basis on which to request that issues be submitted to the jury on the question of legal malpractice without expert testimony thereon, he prepared his ease and announced ready for trial without requesting a continuance, knowing that he had no expert witness to call and no expert testimony to produce. Finally, although appellant had known for more than three years before trial that Steelman was to be a fact witness in the case, he did not inquire of Steelman whether he would be willing to be an opinion witness as well until the second day of the trial. Under these circumstances, we find no abuse of discretion by the trial court in refusing to allow appellant’s witness Steelman to testify as an expert before the jury. See Tabatchnick v. G. D. Searle & Co., 67 F.R.D. 49, 55 (D.N.J.1975); Carver v. Salt River Valley Water Users’ Association, 104 Ariz. 513, 456 P.2d 371, 375 (1969); Aulgur v. Zylich, 390 S.W.2d 553, 556 (Mo.Ct.App.1965). Appellant’s point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.