text:
    Callie ALEXANDER, for the Estate of Geneva Fowler Smith, Appellant, v. Naomi BOWENS and Clarence Reed, Appellees.
    No. 22772.
    Court of Civil Appeals of Texas, Dallas.
    April 11, 1979.
    James P. Hopkins, Steele & Hopkins, Dallas, for appellant.
    Howard V. Tygrett, Jr., Tygrett, Walker & Lamb, Dallas, for appellees.

      Before AKIN, ROBERTSON and CARVER, JJ.
   AKIN, Justice.

This is a motion filed by appellant under Tex.R.Civ.P. 21c seeking an extension of time for filing her transcript and statement of facts. As grounds for extension, appellant states she needed additional time to obtain the statement of facts because the court reporter refused to prepare it without being paid in advance, and appellant did not have the funds at that time to pay the reporter. We hold that appellant’s explanation is a reasonable one and accordingly grant appellant’s motion.

Rule 21c provides that an appellant may be granted an extension of time for late filing of a transcript or statements of facts in a court of civil appeals “if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing” of such documents. The supreme court in Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977), held that “reasonably explaining” means any plausible statement of circumstances indicating that failure to file within the sixty day period prescribed by the rules was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. We must, therefore, apply this standard to appellant’s explanation of her need for an extension to determine whether her explanation is reasonable.

Judgment was rendered on September 29, 1978. Appellant’s motion for new trial was filed on October 9, 1978, and overruled by the trial court on November 13, 1978. On November 21, 1978, appellant filed her appeal bond and ordered the transcript and statement of facts. The court reporter refused, however, to prepare the statement of facts unless appellant paid her in advance. Appellant avers in her motion that she was unable to raise these funds until after the sixty day period had expired on January 12, 1979. In her Rule 21c motion filed on January 23, 1979, she states that the court reporter was on vacation at that time and would not return until February 2, 1979. She apparently had the funds required by the court reporter on the date of filing her Rule 21c motion because, in a supplemental motion, she states that the statement of facts had been prepared and sent to the appellee’s counsel on February 14,1979, but had not yet been returned. In this supplemental motion, she also avers that the trial judge had approved the statement of facts, and it was tendered for filing with the transcript in this court on March 29, 1979.

Our question turns on whether she has reasonably explained her need for additional time to file her statement of facts since a reasonable explanation for late filing of the statement of facts also extends to the transcript which was apparently ready earlier. E. g. Embry v. Bel-Aire Corp., 502 S.W.2d 543 (Tex.1973). We conclude that the explanation is a reasonable one under Rule 21c, and accordingly grant appellant’s motion and order the statement of facts and transcript be filed as of March 29, 1979. Our holding is grounded upon the fact that the statement of facts would likely have been ready for filing within the sixty day period prescribed by the rules had the court reporter complied with appellant’s timely request and commenced preparation of the statement of facts on November 13, 1978. We note, in this respect, that the court reporter was able to prepare the statement of facts between February 2, 1979, and February 12, 1979. Since the reporter had no right to require payment as a condition precedent to her official duty to prepare the statement of facts, the delay was not deliberate or intentional. Tex.Rev. Civ.Stat.Ann. art. 2324 (Vernon Supp.1979) provides:

[w]hen any party to any suit reported by any such reporter shall desire a transcript of the evidence in said suit, said party may apply for same by written demand, and the reporter shall make up such transcript and shall receive as compensation therefor a reasonable amount. [Emphasis added]

As we read this language, the reporter had a mandatory duty to prepare the record upon request, but no right under the statute to demand payment in advance. Appellant’s duty to pay the court reporter a reasonable fee does not arise until the statement of facts has been prepared. Indeed, the statute contemplates that the statement of facts be prepared before a reasonable fee for such services can be established. Under the statute, if the fee be excessive, then appellant could have objected. Without knowing the length and number of pages of the statement of facts in advance, however, a party would be in poor position to lodge an objection to the fee. We hold, therefore, that the court reporter’s duty to prepare the statement of facts arises before the appellant has a duty to pay a reasonable fee. See Fine v. Page, 572 S.W.2d 577, 579 (Tex.Civ.App.— Eastland, 1978, no writ); See also In re Johnson, 554 S.W.2d 775, 782-83 (Tex.Civ.App.—Corpus Christi, 1977, no writ).

Motion granted.


source: Caselaw Access Project

author: STOREY, Justice.

license: Public Domain

text:
    UNITED POSTAGE CORP. and Bill N. Raulerson, Appellants, v. Calvin KAMMEYER, Appellee.
    No. 19663.
    Court of Civil Appeals of Texas, Dallas.
    April 13, 1979.

      Toby L. Gerber, Berman, Fichtner & Mitchell, Dallas, for appellants.
    Bertrán T. Bader, III, Bader & Cox, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   STOREY, Justice.

United Postage Corporation and William Raulerson appeal from a judgment awarding treble damages and attorney’s fees against them, jointly and severally, for asserted violations of the Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Comm.Code Ann. § 17.41 et seq. Tex.Laws 1975, ch. 62, at 149. We affirm, in part, the judgment against the corporation and reverse and render the judgment against Raulerson.

The defendants contend the judgment should be reversed, because: (1) there is no evidence or insufficient evidence to support answers to special issues; (2) plaintiff is judicially estopped to claim reliance upon the representations;' (3) findings to defensive issues were improperly disregarded; (4) representations made in the sale of services are not proscribed by the Act; (5) the Act violates due process and protected commercial speech under federal and state constitutions; (6) the measure of damages submitted and found was improper; and (7) the Act does not impose liability upon Rau-lerson.

This action is governed by subchapter E, Texas Business and Commerce Code as amended effective September 1,1975. Tex. Laws 1975, ch. 62, at 149. The Act grants a private right of action to a consumer who has been adversely affected by conduct proscribed by the Act, section 17.50; and the legislature has mandated the Act be liberally construed and applied to accomplish its purpose to protect consumers against false, misleading and deceptive business practices. Section 17.44. Certain sections of the Act declare, in general terms, deceptive, misleading or unconscionable conduct to be unlawful. Sections 17.46(a) and 17.50(a)(3). However, we are primarily concerned in this case with section 17.46(b) which proscribes specific acts or conduct.

The transaction out of which the suit arose was plaintiff’s purchase of five coin-operated postage stamp vending machines from United Postage Corporation by a written contract dated December 19, 1975. These machines were placed on location during January 1976, by one of the company’s professional locators. On January 27, 1976, plaintiff signed an identical purchase agreement for three additional machines, which were also placed on location by the company.

Plaintiff operated his vending route during the remainder of January 1976, and through February and March; thereafter, he serviced the route sporadically until June or July because, by the end of March, he had decided to go out of business. He made this decision, as he testified, because he was spending more time than anticipated, the machines were malfunctioning, and the level of sales was unsatisfactory. Efforts to sell the machines on location proved unsuccessful, so that they were removed to plaintiff’s garage where further efforts to sell them as used machines were also unsuccessful.

The alleged deceptive acts and practices occurred before and after purchase of the machines. In November 1975, the corporation placed an advertisement in a Houston Newspaper offering the reader an opportunity to establish himself in a “very profitable” postage stamp vending business. Claiming an investment could be made with safety and “no one has ever lost a dime in United Postage Corporation,” it advertised to furnish an investor complete training, dispensing equipment, and routes of established locations to be installed by the company.

Plaintiff responded to the advertisement and received a form letter from the company’s Executive Vice-President, William J. Bowman, lauding the merits of the vending machine industry in general and of the postage stamp vending industry in particular, and stating: “Our distributors are collecting thousands of dollars daily from their Postage Stamp vending routes . . ..” The letter concluded that a personal interview would be arranged between plaintiff and a company regional director whose functions, among others, would be to determine if plaintiff were qualified to be accepted as a distributor.

An interview was arranged and the regional director, Jerome Walters, made a lengthy and somewhat “canned” sales presentation to plaintiff which contained numerous representations claimed by plaintiff to be false, misleading, and deceptive. According to plaintiff’s testimony, Walters represented he was about to choose one additional distributor out of two or three applicants to serve the Houston area; the number of distributors would be limited; plaintiff, if chosen, would be the exclusive distributor in the west side of Houston; the company was ethically operated and set high standards for its personnel and distributors; the company had influence with United States Postal Service; the company would locate machines in high-profit locations and afford the distributor continuing advice and assistance in operation; a route would reach a profit level in six to seven weeks of operation, averaging five to eight vends per machine per day; in the event a distributor became disenchanted, the company would assist in the sale of his established route for which he might expect to receive three times his investment; and the machines were the best in the business and could possibly be sold without any loss as used machines not on location. Plaintiff claimed two additional acts of the company were deceptive and misleading: Walters, though titled regional director by the company, was a commission salesman; and National Discounts, Incorporated, a reference given by the company, proved to be the manufacturer of the machines, and one of its principal shareholders was also a principal shareholder of the company.

In its charge, the court submitted eighteen issues inquiring if the following representations made by the company were (a) false, misleading or deceptive, and (b) relied upon by the plaintiff:

(1) representing that commissioned salesmen were “regional directors”;
(2) listing NDI Manufacturing Company as a reference;
(3) representing that distributors of United Postage Corporation are collecting thousands of dollars daily from their postage stamp vending routes;
(4) representing that purchasing a postage stamp vending distributorship would be profitable or highly profitable;
(5) representing that regional directors of UPC are authorized to interview and recommend appointment of distributors for UPC;
(6) representing that UPC has meaningful standards for the purchase of postage stamp vending machines other than sufficient cash to purchase;
(7) representing that UPC is an ethically operated company;
(8) representing that plaintiff could expect an average of five to eight vends per day per machine;
(9) representing that plaintiff could in time expect an average of in excess of eight vends per day per machine;
(10) representing that plaintiff would have an exclusive geographical distributorship area;
(11) representing that the number of distributors in a particular area is limited;
(12) representing that plaintiff could expect active help, assistance or guidance from UPC with his distributorship after his machines were installed;
(13) representing that a profitable level of vends on the postage machines would be built up in six to seven weeks;
(14) representing that plaintiff could sell his postage stamp vending route for a substantial profit;
(15) representing that UPC had a close working relationship with or influence with the United States Postal Service in the denomination of stamp booklets that would be issued;
(16) representing that no one has ever lost a dime with United Postage;
(17) representing that at the time plaintiff was considering whether to purchase the UPC machines, there were others who were ready to fill his spot;
(18) representing that UPC had already selected or would be in a position to select high profit locations for plaintiff’s machines.

The jury found representations (5) and (18) to be not false, that the representation in (9) was not made and that (12) was not relied upon. The remaining issues were answered favorably to plaintiff.

After carefully reading the record of plaintiff’s testimony, the newspaper advertisement and the correspondence, we conclude that there is sufficient evidence to support each of the jury findings.

Defendants base their attack on the jury’s findings primarily on asserted judicial admissions which, they insist, negate any finding that plaintiff did or could have relied upon the representations made to him. Plaintiff testified that he read and fully understood the terms of the purchase agreement which clearly stated it did not grant exclusive territories, guarantee any specific earnings per machine, and that the purchaser “is not relying on any oral or written expressions, promises or warranties” other than those contained in the agreement. It disclaimed any warranties on the machines, except for the manufacturer’s warranty, and set out specific terms of a guaranty by which a purchaser might recover his investment.

The provisions of the agreement could not constitute judicial admissions because they were not made in the course of judicial proceeding. Neither can plaintiff’s testimony that he read and understood the agreement be so considered, because he also testified that he nevertheless relied upon the assurances of Walters that the terms would neither be binding upon nor enforced against him. A judicial admission is one which removes the admitted fact from controversy. The testimonial declaration of a party will not be given that effect unless it is deliberate, clear and unequivocal, and it must be considered along with the party’s other testimony. Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 901 (Tex.1976). To admit to understanding one set of representations does not preclude one from claiming he relied upon another and conflicting set. Plaintiff’s testimony that he relied upon defendant’s oral representations rather than statements contained in the agreement created a fact issue. Conley v. Brownsville Medical Center, 570 S.W.2d 583 (Tex.Civ. App.—Corpus Christi 1978, writ ref’d n.r. e.); Martin v. Mann Merchandising, Inc., 570 S.W.2d 208 (Tex.Civ.App.—Eastland 1978, writ ref’d n.r.e.); Leonard v. Smith, 186 S.W.2d 284 (Tex.Civ.App.—Galveston 1945, no writ). We have no parol evidence problem here because evidence extrinsic to the written agreement is admissible to show false, misleading or deceptive practices as it is to show fraud. Santos v. Mid-Continent Refrigerator Company, 469 S.W.2d 24 (Tex. Civ.App.—Beaumont), writ ref’d n.r.e. per curiam, 471 S.W.2d 568 (Tex.1971).

Defendants claim that the trial court erred in disregarding findings that the representation “our distributors are collecting thousands of dollars daily” was the result of a bona fide error and that defendant did not have sufficient opportunity to cure defects in the machines. The court properly disregarded these findings because the defenses, bona fide error and opportunity to correct, were not made available in private actions until the 1977 amendments to the Act. Section 17.50A(1), (3). With respect to transactions before enactment of section 17.50A, the defense of bona fide error is limited to class actions, and is not applicable to this case. Tex.Laws 1975, ch. 62, at 149.

Defendants contend seven of the representations inquired about in the court’s charge relates to the sale of services and should therefore be disregarded because of the commercial or business use exclusion formerly contained in subdivision (2) of section 17.46(b). Plaintiff, on the other hand, argues that each of the eighteen representations relate solely to the sale of goods and each falls within one or more of the twenty specific acts proscribed by section 17.46(b), sometimes referred to as the “laundry list.” Before the 1977 amendments, “goods” were defined as tangible chattels or real property purchased or leased for use; and “services” as work, labor or service purchased or leased for use, for other than commercial or business use, including services furnished in connection with the sale or repair of goods. Tex.Laws 1975, ch. 62, at 149.

When we consider the nature of the “goods” here involved, it becomes apparent that one or more of the representations found by the jury are not within the exclusion. As pointed out above, “goods” are defined as “tangible chattels”. This term is traditionally defined as those items of personal property which may be seen, weighed, measured, felt or touched. Webster’s New International Dictionary (2d ed., unabridged, 1941), See also Tex.Tax.Gen.Ann. art. 20.01(P)(1969); and Erwin, et al. v. Steele, 228 S.W.2d 882 (Tex.Civ.App.—Dallas 1950, writ ref’d n.r.e.). A stamp vending machine is undoubtedly a tangible chattel, although, as is true generally of all coin-operated vending devices, it has a characteristic not normally possessed by most tangible chattels. In addition to its function as a dispenser, it serves as a salesman. For example, the machine here involved, was characterized by defendants as a “silent salesman”, an “employee” needing supervision only once a week, an “employee” who never complains or goes on strike. It is, nevertheless, a tangible chattel within the definition of “goods” even though it possesses these additional characteristics.

Viewed in this light, several of the representations concerning the machine in question fall within at least one of the provisions of section 17.46(b). Representations that plaintiff could expect an average of five to eight vends per day per machine are not descriptive of its mechanical capacity, because each could mechanically dispense two hundred vends per day, but it is descriptive of its selling capacity. The same observation applies also with respect to representation (8) that plaintiff could expect an average of five to eight vends per day per machine. Consequently, we hold that these representations fall within section 17.-46(b)(5): representing that goods have characteristics, uses, benefits or quantities which they do not have. These findings are sufficient to support the judgment even though other findings may be within the exclusion. The Supreme Court faced a similar problem in Spradling v. Williams, 553 S.W.2d 143 (Tex.Civ.App.—Beaumont 1977), affirmed, 566 S.W.2d 561 (Tex.1978), and held:

if any one of those listed acts or practices is found factually to have happened, it is by law an unlawful deceptive trade practice because subsection 17.46(b) makes it unlawful.Looking at the verdict in the case before us, there is at least one jury finding of a deceptive act or practice which is included among those listed in subsection 17.46(b).

Defendants contend the Act violates the due process requirements of the federal and state constitutions. They also contend it places an undue burden on their first amendment right of free speech. These constitutional questions are raised for the first time on appeal, and defendants rely upon the holding of this court in Singleton v. Pennington, 568 S.W.2d 367 (Tex.Civ. App.—Dallas 1977, writ filed), as authority for initially raising the questions here. The obvious distinction is that in Singleton, the plaintiff’s petition failed to mention the Act or plead for any relief under it; but in this case, the Act was specifically pleaded and damages sought under it. We conclude that this is not a case in which we should consider a constitutional question which has not been presented to the trial court. Mobile America Sales Corp. v. Rivers, 556 S.W.2d 378, 382 (Tex.Civ.App.—San Antonio 1977, writ ref’d n.r.e.); Van Wart v. Van Wart, 501 S.W.2d 359, 361 (Tex.Civ. App.—Austin 1973, no writ); City of South Houston v. Sears, 488 S.W.2d 169, 174 (Tex. Civ.App.— Houston [14th Dist.] 1972, no writ).

We also overrule defendants’ contentions with respect to the proper measure of damages. The court submitted a single damage issue:

What sum of money, if any, if paid now in cash would fairly and reasonably compensate the plaintiff for damages or losses, if any, which resulted as a direct or natural result of the acts or representations of the defendants, if any you have found, which the plaintiff relied upon to his detriment?

The jury answered $4,415.00. Defendants objected to its submission in the trial court on grounds it was global, there was no evidence or insufficient evidence, it was ambiguous and vague, and a comment on the weight of the evidence. On this appeal, defendants urge that the trial court submitted an improper measure of damages. No objection was made to the charge on this ground. The objections are too general to inform the court of their basis, and therefore fail to comply with Tex.R.Civ.P. 274. Defendants cannot now complain the charge permitted the jury to find damages based on an improper measure. Whitson Company, Inc. et al., v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488 (1956); Brazos Electric Power Cooperation, Inc. v. Taylor, 576 S.W. 2d 117 (Tex.Civ.App.—Waco 1978, writ ref’d n.r.e.); Mowery v. Fantastic Homes, Inc., 568 S.W.2d 171 (Tex.Civ.App.—Dallas 1978, no writ); Success Motivation, Inc. v. Lawlis, 503 S.W.2d 864 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n.r.e.); Hamilton v. Fant, 422 S.W.2d 495 (Tex. Civ.App.—Austin 1967, no writ).

While section 17.50(b)(1) of the Act does not define “actual damage,” we believe it to contemplate common law damages or the difference in value between that which the plaintiff parted with and that which he received.

Defendants contend that plaintiff failed in an essential element of his proof of damages, namely, the value of that which he received, and therefore is not entitled to any recovery. We agree that he failed to prove this element essential to his recovery of treble damages under section 17.50(b)(1). Nevertheless, the Act affords alternate remedies, and he did prove himself entitled to damages under section 17.50(b)(3). Section 17.50(b) provides that each consumer who prevails may obtain:

(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended;
(2) an order enjoining such acts or failure to act;
(3) orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter; and
(4) any other relief which the court deems proper. [Emphasis added]

Plaintiff pleads for the return of all moneys paid to defendant together with certain other amounts expended by him. In the next paragraph of his petition, plaintiff asks for recovery of attorneys fees and for triple the amount of damages found by the jury as provided by the Act. We interpret these to be pleadings for alternative remedies, first under section 17.50(b)(3) and second under section 17.50(b)(1). Whether the alternative pleading is intentional or not, plaintiff has alleged sufficient facts to bring his remedy under one or the other of the subdivisions depending upon the proof offered. This is contemplated by the Act as pointed out in Woods v. Littleton, 554 S.W.2d 662 (Tex.1977), where the Supreme Court said “the Legislature intended ‘may’ to indicate that the consumer has several remedies from which to choose and that the court is to grant the consumer that relief which the consumer proves a right to receive.” We conclude that plaintiff is entitled to recovery under subdivision (3) of section 17.50(b).

We believe this interpretation to reflect the intent of the legislature because it properly anticipated that in some cases “actual damages” are not susceptible of proof with reasonable certainty. This case is an example. The machines, of course, have an ascertainable value; but the value of machines, on location as a going business, without a history of operation cannot be determined with any reasonable degree of certainty. Apparently for this very reason, the inability to ascertain value, the legislature did not provide for the trebling of damages, but for the restoring of the consideration paid; or, stated in terms of the Act, the return of that which was acquired by the seller. See Woo v. Great Southwestern Acceptance Corporation, 565 S.W.2d 290 (Tex.Civ.App.—Waco 1978, writ ref’d n.r. e.). Also, there is greater reason for trebling damages if the measure is limited to the difference in value between what the consumer gave and what he received within section 17.50(b)(1), than if he is allowed restoration of the entire consideration paid as provided in section 17.50(b)(3).

There is no dispute that the amount paid to or acquired by the defendant was $3,896.00. The jury found plaintiff’s damage to be $4,415.00. The excess of $519.00, according to plaintiff’s testimony, consisted of expenses for automobile travel in operation of the business, cost of stamps, bank loan interest and stamp booklets. Defendants preserved no error nor make complaint on appeal with respect to these expenses. We conclude there is ample evidence in the record to support the finding of damages.

While subdivision (3) of section 17.-50(b) does not specifically provide for recovery of attorneys fees, we believe the intent and express purpose of the Act compels that they be included in all subdivisions of the section. The Act is to be liberally construed to promote its underlying purposes to protect consumers and to provide efficient and economical procedures to secure such protection. Section 17.44. Under section 17.50(b)(4), the court is empowered to grant any other relief which the court deems proper. It will be seen that subdivision 17.50(b)(2), providing for injunctive relief, also fails to expressly provide for recovery of attorney’s fees. Yet the Supreme Court has stated in Woods, supra, at 669: “Thus, the individual who establishes all the elements required for injunctive relief shall receive such injunctive relief, and, supported by adequate proof, reasonable attorneys’ fees and court costs.” We hold that the jury’s findings upon the attorneys’ fees issues are proper and that plaintiff is entitled to their recovery.

Raulerson, the midwest regional manager of United Postage Corporation, contends that there is no evidence or alternatively, insufficient evidence to hold him liable under the Act. This is true, he contends, because his only personal contact with plaintiff occurred at some time after execution of the December 19 purchase agreement when plaintiff came to Dallas to discuss the question of his exclusive distributorship area. Of the many representations attributed to the regional director, Walters, that involving exclusive area is the only one shown by the evidence to have been discussed by Raulerson; and, according to plaintiff, Raulerson stated: “Whatever Mr. Walters said to you, we will do.” Upon this testimony, the jury found Raulerson ratified all of the representations made by Walters; and, further, that he made the following representations: plaintiff would have an exclusive distributorship area; the number of distributors in an area is limited; plaintiff would have help after the machines were installed and the company had selected high profit locations for plaintiff’s machines.

These four representations are identical to (10), (11), (12) and (18), listed above, which inquired of the company’s representations. No findings were sought or made as to whether they were false when made by Raulerson, or relied upon by plaintiff to his detriment.

We have pointed out in discussing defendants’ first point that (18) was found to be not false and (12) not relied upon while the remaining representations, (10) and (11), we have concluded, relate to the sale of services excluded by the Act as it stood at the time of this transaction. Consequently, we find no basis for the personal liability of Raulerson.

Nor do we consider the finding of ratification of Walters’ representations sufficient under the facts of this case because the evidence does not establish that Raulerson knew the other representations were made. A party cannot be held to have ratified facts unknown to him. A. B. Lewis Co. v. Robinson, 339 S.W.2d 731 (Tex.Civ. App.— Austin 1960, no writ); Wichita Frozen Food Lockers v. National Cash Register Company, 172 S.W.2d 781 (Tex.Civ.App.—Fort Worth), affirmed, 142 Tex. 109, 176 S.W.2d 161 (1943).

Plaintiff appealed from an order granting the special appearance of a third defendant, William J. Bowman. His motion to dismiss the appeal, filed in this court, is granted.

The trial court’s judgment against Rau-lerson is reversed and rendered; the judgment against United Postage Corporation is reformed to reduce plaintiff’s recovery to $4,415.00, together with attorney’s fees as ordered, interest and costs and, as reformed, affirmed.


author: GUITTARD, Chief Justice.

text:
    TOWER CONTRACTING COMPANY, Appellant, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Appellees.
    No. 19805.
    Court of Civil Appeals of Texas, Dallas.
    April 18, 1979.
    Rehearing Denied May 16, 1979.

      G. Leroy Street, Kenneth G. Lupo, Geary, Stahl, Rodhe & Spencer, Dallas, for appellant.
    Robert C. Cox, Erhard, Cox & Ruebel, D. L. Case, Jack Pew, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.

      Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   GUITTARD, Chief Justice.

In this suit for damages for wrongful foreclosure and for tortious interference with negotiations to avoid the foreclosure, the court rendered judgment for defendants on the jury’s verdict. Plaintiff appeals, contending that the trustee’s sale was wrongful as a matter of law because the notice of sale was posted in violation of a temporary restraining order. We hold that plaintiff is not entitled to recover damages on this ground because it obtained the temporary restraining order on obviously insufficient grounds and then agreed that the trustee was free to proceed with the foreclosure. We hold also that the evidence supports the jury’s negative findings on the other grounds alleged and that the admission of certain evidence was not error. Accordingly, we affirm.

The material facts are undisputed. Plaintiff Tower Contracting Company was the owner of a hotel-office-building complex, subject to a deed of trust securing a promissory note held by the trustees of the Teamsters Pension Fund, whom we shall call the Teamsters. On May 7, 1975, the trustee under the deed of trust notified plaintiff that by reason of plaintiff’s failure to pay monthly installments of principal and interest and failure to pay property taxes, the Teamsters had matured the balance of the note and were causing the property to be posted for a trustee’s sale on June 3.

Plaintiff then sought a temporary restraining order, which was issued on June 2. The sworn petition alleged that plaintiff had requested a moratorium on the principal payments of the loan, that plaintiff had obtained a tentative oral agreement from another lender to advance the funds necessary to pay the taxes before June 3, and that the Teamsters had orally agreed that the trustee’s sale would not be held if the property taxes were paid. The petition also alleged that the prospective lender advised plaintiff on May 30 that the funds would not be advanced, that plaintiff immediately notified the Teamsters’ attorney, who advised that no more time would be granted and that the sale would be held on June 3. The petition alleged that there was insufficient time to file a petition and obtain a hearing and prayed for issuance without notice of an order immediately restraining the trustee from proceeding with the sale.

On presentation of this petition, a district judge signed an ex parte fiat directing the clerk to issue an order restraining the trustee from proceeding further under the deed of trust. The trustee was forbidden to post for sale or to conduct any sale of the land in question prior to a hearing on the application for temporary injunction, which was set for June 12. The trustee obeyed this order with respect to the sale on June 3, but, on June 9, proceeded to post another notice for a sale on July 1. The Teamsters intervened in the proceedings, and on June 12 the parties made and signed a written agreement to dissolve plaintiff’s temporary restraining order. The agreement further provided that plaintiff would not pursue its application for a temporary injunction and that the Teamsters would withdraw an action they had filed for damages for wrongful issuance of the restraining order. Finally, the agreement provided that if a new agreement should not be reached between the parties before July 1, then the trustee “shall be free to proceed with foreclosure of the property in question without intervention or interference” by plaintiff. This agreement was embodied in a formal order signed by all the parties and by the judge on June 16. The trustee then proceeded to sell the property on July 1 in accordance with the notice posted on June 9.

Plaintiff argues that notwithstanding its agreement on June 12, the trustee’s sale was wrongful because the notice of June 9 was void, since it was posted in violation of the temporary restraining order. Plaintiff insists that although the trustee was “free to proceed with foreclosure” if no further agreement should be made by July 1, the agreement of June 12 did not provide that the sale could be made without a valid notice to prospective bidders, and that the existence of the temporary restraining order tended to chill the bids and prevent the property from selling at an adequate price. Consequently, plaintiff contends that it is entitled to judgment for damages equal to the difference between the value of the property, as found by the jury, and the balance of the debt at the time of the sale.

We cannot agree that plaintiff is entitled to damages on the theory that no valid notice was posted. The only defect in the notice resulted from the temporary restraining order that plaintiff itself had obtained on obviously insufficient grounds. The petition alleged only that the Teamsters had agreed not to foreclose if plaintiff should pay the taxes by June 3, and that plaintiff expected to borrow the money to pay the taxes, but was notified by the prospective lender on May 30 that the money would not be advanced. Plaintiff makes no pretense in this suit that it had even an arguable ground for a temporary restraining order or a temporary injunction. In its present petition plaintiff alleges simply that it obtained the temporary restraining order “[bjeeause plaintiff’s source for raising the necessary funds was unexpectedly withdrawn.” Plaintiff’s president testified by deposition in the present action that the only reason for obtaining the temporary restraining order was to gain time in the hope that the necessary funds could be raised.

In support of its contention that the sale is void, plaintiff relies on Jackson v. The Praetorians, 83 S.W.2d 740, 741 (Tex.Civ. App.—Dallas 1935, no writ). In that case this court decided that a trustee’s sale held one day after dissolution of a temporary injunction restraining the sale was void on two grounds, first, abandonment of the remedy of non-judicial foreclosure by filing of a counterclaim for judicial foreclosure, and, second, posting of notices in violation of the injunction. There is no suggestion in the opinion that the injunction was originally improper, the ground for dissolution being that the mortgagee had abandoned its remedy of extra-judicial foreclosure. Accordingly, the court set aside the trustee’s sale and permitted the judicial foreclosure action to proceed.

We do not read that opinion as supporting a recovery in a case like the present. We need not determine what result would follow if the property were still in the hands of the Teamsters so that another foreclosure sale could still be held. The present suit is an action to recover damages as a result of the issuance of a temporary restraining order which plaintiff obtained on a petition stating insufficient grounds and which plaintiff voluntarily withdrew after agreeing not to interfere further with the sale.

Plaintiff insists that it complied with its agreement not to interfere with the sale, but that the agreement did not authorize a sale without proper posting of notice. We do not think plaintiff should be heard to claim damages on this ground for two reasons.

First, since plaintiff knew that the temporary restraining order was in force until June 12, but, on that day, withdrew its application for injunction and agreed not to interfere with the sale if no further agreement were made before July 1, that agreement, though not entirely clear on this point, may reasonably be construed as a waiver of any right to contest the validity of a sale on that date on the ground of improper posting. Obviously, the Teamsters and the trustee did so understand it. Apparently, plaintiff had the same understanding of the agreement at the time, since it made no objection to the sale, which it knew would take place on July 1. After standing silent until after the sale was made, plaintiff should not now be heard to put a different construction on the agreement and claim that it did not authorize the sale to proceed in accordance with the notice posted on June 9.

Second, plaintiff had the burden in this suit to show, at the very least, that it acted in good faith when it applied for the temporary restraining order and not, as it now admits, deliberately to delay a sale that otherwise would have been entirely proper. If prospective purchasers were discouraged from bidding at the sale by issuance of the temporary restraining order, that discouragement was a result of plaintiff’s own abuse of the judicial process in obtaining the temporary restraining order without legal or equitable grounds. Plaintiff should not be able thus to rely on its own wrong to create a cause of action in its favor.

Moreover, the record indicates that plaintiff obtained the temporary restraining order in violation of rule 1.3(b) of the Dallas Civil Court Rules, which provides:

Counsel presenting any application for an ex parte order shall at the time the application is presented certify to the court that:
(1) to the best of his knowledge the party against whom the relief is sought is not represented by counsel in the matter made the basis of the suit in which the relief is sought; or
(2) if such party is so represented by counsel, that (i) such counsel has been notified of the application and does not wish to be heard by the court thereon; or (ii) that counsel presenting the application has diligently attempted to notify such counsel and has been unable to do so and the circumstances do not permit additional efforts to give notice.

The petition in the injunction suit affirmatively shows that before that suit was filed, plaintiff had been negotiating with Albert Levy, the trustee. The record also shows that Mr. Levy was an attorney practicing in Dallas County and that he was representing the Teamsters. Yet the petition contains no certificate stating that plaintiff had notified Mr. Levy of its intention to apply for temporary restraining order or had attempted to notify him. Neither does the judge’s ex parte order recite that any attempt had been made to give Mr. Levy notice of the application before the temporary restraining order was issued. Although such a notice is not required by rule 680 of the Texas Rules of Civil Procedure, we consider the local rule highly salutary. It is designed to obviate just such problems as those now presented to us. Although the judge was not required to hear evidence before acting on the application, opposing counsel, if present, could easily have pointed out that the petition failed to state sufficient grounds for injunctive relief.

Consequently, we strongly recommend that all judges operating under the Dallas Civil Court Rules insist on strict compliance with rule 1.3(b) before signing any ex parte order granting temporary in-junctive relief. Other trial judges would do well to adopt a similar practice, with or without formal adoption of a local rule.

For these reasons we decline to hold that plaintiff is entitled as a matter of law to recover damages based on invalidity of the sale. We do not hold, however, that a notice posted in violation of a restraining order issued on insufficient grounds or without prior notice to opposing counsel is not punishable as a contempt of court. Neither do we hold that plaintiff would not have been entitled to raise the question of invalidity of the notice if it had done so promptly.

In addition to the claim of invalidity of the notice, plaintiff attacks the jury’s findings as contrary to the facts conclusively established by the evidence, and, alternatively, as against the great weight and preponderance of the evidence. In particular, plaintiff attacks the jury’s refusal to find that the Teamsters made promises or assurances which led plaintiff reasonably to believe that they would not complete the foreclosure without giving plaintiff a reasonable opportunity to obtain commitments for negotiating an acceptable satisfaction of its indebtedness to the Teamsters. Plaintiff also attacks certain findings relating to its claim against Ronald F. Walters, who bought the property from the Teamsters after the trustee’s sale. Plaintiff joined Walters as a defendant, alleging that he maliciously induced the Teamsters not to grant plaintiff a moratorium on its loan payments. All issues concerning Walters were found in his favor, and plaintiff now attacks these findings as contrary to the evidence. After reviewing the record, we find that the evidence is sufficient, both legally and factually, to support all these findings. Consequently, these points are overruled.

We also overrule plaintiff’s points complaining of the admission in evidence of certain legal proceedings tending to show the poor financial condition of plaintiff’s president and sole stockholder. We conclude that this evidence was admissible to rebut plaintiff’s allegations that plaintiff would have been able to raise funds for the payment of its indebtedness to. the Teamsters and would have saved its equity in the property if given a reasonable opportunity, especially in view of evidence that plaintiff had represented to the Teamsters that its president would be able to raise money by selling certain property that he owned individually. There was evidence tending to show that plaintiff’s inability to raise the money was due, in part, to a large loan it had made to its president. The evidence complained of tended to show the president’s inability to repay the loan and raise other funds to enable plaintiff to pay its indebtedness, even if additional time had been granted. Consequently, we find no error in the admission of this evidence.

Affirmed.


author: ROBERTSON, Justice.

text:
    Leon WILSON, Appellant, v. ESTATE OF Asie Lee WILSON, Deceased, Appellee.
    No. 19838.
    Court of Civil Appeals of Texas, Dallas.
    April 23, 1979.
    Rehearing Denied May 23, 1979.

      Hugh 0. Mussina, Dallas, for appellant.
    Noel C. Ice, S. G. Johndroe, III, Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, for appellee.
    Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

This is an appeal from a probate court’s order denying an application to probate a holographic will. The application was denied on the basis of jury findings of undue influence and lack of testamentary capacity. At trial, evidence in the form of a prior judgment was introduced. We hold that the trial court erred in admitting this judgment into evidence, since it recited a finding of fact on an issue similar to the main issue in the present case and was, therefore, prejudicial. Accordingly, we reverse and remand.

Appellee Lewis Wilson’s exhibit no. 7 consisted of a judgment rendered in a prior lawsuit between appellant Leon Wilson and appellee in his capacity as next friend of the decedent. In that suit the next friend sought to cancel a deed signed by the testatrix on the ground of undue influence by her son Leon Wilson who is now charged with undue influence in procuring the execution of her will. The judgment incorporated special issues submitted to the jury and the answers to these issues. Among the issues recited was the following: “Do you find from a preponderance of the evidence that on or prior to the execution of the quitclaim deed dated May 31, 1973 that defendant Leon Farris Wilson substituted his own will and desires for those of his said mother Asie Lee Wilson plaintiff herein?” The jury answered this issue affirmatively. Appellant objected to the introduction of this judgment on the basis that the judgment was hearsay and that it contained factual conclusions found by another jury in a different lawsuit. The trial court overruled this objection and allowed the judgment to be read in its entirety to the jury.

The general rule in Texas is that a judgment is always admissible in evidence for the purpose of showing the facts of its own existence. McCamant v. Roberts, 66 Tex. 260,1 S.W. 260 (1886). It is not admissible, however, to show what matters were adjudicated unless the parties and the subject matter in both suits are the same or the matter determined is of a public nature and should be considered binding on all persons. Allen v. Great Liberty Life Insurance Co., 522 S.W.2d 247, 251 (Tex.Civ.App.—East-land 1975, writ ref’d n. r. e.); Davis v. Zapata Petroleum Corp., 351 S.W.2d 916, 922 (Tex.Civ.App.—El Paso 1961, writ ref’d n. r. e.). In Davis, the court stated:

In general, a judgment in another cause finding a fact now in issue is not admissible. The fact that another jury had theretofore, in another case, determined the very questions at issue in the present trial would have had a strong tendency to induce the jury in the subsequent case to reach the same conclusion, and would therefore have been very prejudicial. Such judgment, under the well settled rules, could not have been introduced in evidence to establish the facts on which it was rendered. 351 S.W.2d at 922.

Applying the above standards, we hold that the trial court erred in admitting the entire judgment into evidence. The subject matter of this case is different than that of the prior case. This cause involves a will contest whereas the prior lawsuit involved a sale of land. Since one of the key issues in the case at bar is the question of undue influence by appellant-proponent of the will on the same person that the jury in the prior case found to have been unduly influenced by him, this answer is highly prejudicial. We hold that the prejudicial effects of the inadmissible evidence probably resulted in the rendition of an improper verdict. Tex.R.Civ.P. 434; Allen v. Great Liberty Life Insurance Co., 522 S.W.2d at 251.

Appellee has presented a counterpoint which must be addressed for the benefit of the trial court on remand. He argues that the trial court erred in refusing to admit his exhibit no. 2 into evidence. This exhibit is a contest to an application filed by appellant to have the decedent declared mentally incompetent. It appears that the trial court refused to admit this on the basis that it was barred by the Texas Deadman’s Statute, Tex.Rev.Civ.Stat.Ann. art. 3716 (Vernon 1926), or alternatively, that this is a statement by the decedent and is not admissible for the purpose of proving undue influence. We disagree.

Article 3716 does not prevent parties from relying upon written instruments executed by the decedent as a basis of either recovery or defense; it only prevents the parties themselves from testifying concern-‘ ing transactions with the decedent. Newsom v. Fikes, 153 S.W.2d 962, 964 (Tex.Civ. App. —Fort Worth 1941, writ ref’d). Thus, the written contest was not barred by article 3716. As to appellant’s second argument, the applicable rule is set out in Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138 (1914). The court held that the testator’s declarations indicating his feelings toward beneficiaries named in the will are admissible as an aid in determining the issue of free agency in making the will. In Robinson v. Stuart, 73 Tex. 267, 11 S.W. 275 (1880), both undue influence and mental capacity were in issue and the court stated that the declarations of the testator in a letter written before the execution of the will were admissible to demonstrate hostility toward a beneficiary. In this case, the contest of the application for guardianship was filed prior to the making of the holographic will and was clearly indicative of the testatrix’ feelings toward the proponent. Thus, we hold that appellee’s exhibit no. 2 was admissible in evidence and the trial court erred in refusing to admit it.

We decline to address the other points raised by appellant since we reverse and remand this cause for a new trial.

      . Article 3716 states: “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of the decedent arising out of any transaction with decedent.


text:
    BAYLOR UNIVERSITY MEDICAL CENTER, Appellant, v. Annabell BORDERS, Individually and as next friend for Sabrina Ann Borders, Appellee.
    No. 19847.
    Court of Civil Appeals of Texas, Dallas.
    April 25, 1979.
    Rehearing Denied May 24, 1979.

      Catherine A. Gerhauser, Burford & Ry-burn, Dallas, for appellant.
    Charles M. Wilson, III, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Alfred W. Ellis, Woodruff & Ellis, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

This appeal involves the construction of Tex.Rev.Civ.Stat.Ann. art. 5506a (Vernon 1975), commonly referred to as the Hospital Lien Statute. Appellant Baylor Medical University Center filed a hospital lien in accordance with the statute against the account of Sabrina Borders, a minor. The trial court held that Baylor’s claim was barred by limitations. We hold, however, that the statute establishes a separate cause of action independent of the patient's obligation to pay the bill and that the hospital’s cause of action accrues only when judgment or settlement proceeds are actually paid, rather than when the patient becomes obligated to pay the hospital bill. Thus, Baylor’s claim was not barred by the statute of limitations. Accordingly, we reverse and render.

On March 7, 1973, Sabrina Borders was admitted to Baylor University Medical Center within seventy-two hours of a swimming accident. Treatment was administered over a three-month period of hospitalization and Sabrina incurred a bill of $9,883.74 of which $4,647.10 was paid by the State of Texas through the Texas Medical Assistance Program. Efforts to collect the remainder of the bill were unsuccessful, and Baylor filed a hospital lien pursuant to the statute in August of 1973. In December of 1975, Annabell Borders, as next friend, filed suit against the owners and manager of the apartment complex where Sabrina’s accident occurred and in November of 1977, joined Baylor as a third-party defendant. This third-party action alleged that Baylor’s hospital lien was invalid because the statute of limitations had run. This suit was settled in December of 1977, with settlement proceeds being paid to the Borders and the settlement was incorporated into a final judgment of the trial court. In its judgment the court denied Baylor’s claims to the proceeds of the settlement on the basis that such claims were barred by limitations.

Appellant asserts that article 5506a creates a cause of action against those who pay or receive funds in derogation of a hospital lien and that this cause of action does not accrue until judgment or settlement proceeds are actually paid. Thus, it contends that Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958), the four-year statute of limitations, began to run in 1977, not 1973. We agree.

In construing a statute, we are guided by the general rules of statutory construction and by cases interpreting such statute. The general rules of construction are: (1) the court must be governed by the rule of common sense. National Surety Corp. v. Ladd, 131 Tex. 295, 115 S.W.2d 600 (1938); (2) the intention of the Legislature in enacting a statute is the statute itself and the aim and object of construction is to ascertain and enforce legislative intent and not to defeat, nullify or thwart it. City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 (1951); (3) the court must construe a statute as written and, if possible, ascertain its intention from the language used therein and not look for extraneous matters to be used as a basis for reading into a statute an intention not expressed or intended to be expressed therein. Government Personnel Mutual Life Insurance Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525 (1952); (4) if a statute is subject to two interpretations, it should not be given one that would render enforcement impossible. Davis v. Estes, 44 S.W.2d 952 (Tex.Com. App.1932, holding approved); (5) the general rules for the construction of all written instruments apply to the construction of legislative acts. Malloy v. Galveston County, 42 S.W.2d 163 (Tex.Civ.App.—Galveston 1931, writ ref’d).

Applying these standards we hold that article 5506a establishes a separate cause of action, as distinguished from any cause of action that the hospital may have against the patient, to satisfy the amounts owing to hospitals before payment is made by alleged third parties to patients. Article 5506a, section 1, establishes a lien on “any and all rights of action, suits, claims, counterclaims or demands”, while article 5506a, section 2, states that the lien attaches to any judgment or settlement proceeds. The third section of article 5506a provides that no release is valid until the lien has been paid in full. The legislature’s intent in passing the statute was to provide for payment to the hospital in situations such as this. Giving the hospital a separate cause of action to satisfy its lien insures that an accident victim will receive aid and that the hospital will be reimbursed for its services, thus reducing hospital costs. It is apparent that the legislature realized that not all accident victims would be financially able to pay their bills and that hospitals needed a means of reimbursement without instituting suits against indigents, where recovery was unlikely. To hold otherwise would render meaningless the filing of a hospital lien pursuant to the statute.

Our holding is supported by the cases that have construed this statute. In Trinity Universal Insurance Co. v. Plainview Hospital & Clinic Foundation, 385 S.W.2d 732 (Tex.Civ.App.—Amarillo 1964, no writ), the hospital failed to file a lien under the statute. The court held that the hospital could not sue the insurance company which had settled with the patient but had not paid the hospital. This case seems to imply that a hospital could maintain a cause of action to enforce a properly filed lien against those who pay or receive money in derogation of the hospital’s rights under article 5506a. The case of Republic Insurance Co. v. Shotwell, 407 S.W.2d 864 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.) concerned a suit by a hospital against an insurance company which had paid an injured party in derogation of the hospital’s filed lien. In holding that a hospital by virtue of its properly filed lien had a cause of action against the insurance company that paid the injured party without paying the hospital bills, the court stated:

However, in this case, it is undisputed that the appellants paid to Mr. and Mrs. Compton $4,000 in settlement of their claim against Mr. and Mrs. Bussey. The question of liability of Mr. and Mrs. Bus-sey must have been determined by the appellants or they would not have paid the Comptons. Under article 5506a ap-pellees were entitled to a lien upon any and all rights or actions, suits, claims or demands of the Comptons since they had filed their lien as required under said article and such lien extended to the proceeds of the settlement made between appellants and the Comptons. Mr. and Mrs. Compton had no claim for any damages against Mr. and Mrs. Bussey after they had signed the release and accepted the $4,000. The appellants must have been responsible to the Comptons because of the acts of Bussey or they would have not paid for such actions. They should not have paid the Comptons until the hospital bill was paid as the hospital bill would be an item in connection with any recovery the Comptons might have against Bussey. 407 S.W.2d at 866.

We conclude, therefore, that the hospital’s cause of action does not accrue until funds are paid in settlement or by judgment and that the statute of limitations commences running at that time. Accordingly, Baylor’s cause of action is not barred by the four-year statute and is entitled to recover $5,241.64 with interest from September 6, 1978.

Reversed and rendered.


author: KLINGEMAN, Justice.

text:
    Doris B. YEO, Appellant, v. Norman R. YEO, Appellee.
    No. 16131.
    Court of Civil Appeals of Texas, San Antonio.
    April 25, 1979.
    Rehearing Denied May 30, 1979.

      Wayne I. Fagan, Jason W. Chozick, Davis, Rigely & Fagan, Inc., San Antonio, for appellant.
    Bruce Waitz, Keith M. Baker, San Antonio, for appellee.
   OPINION

KLINGEMAN, Justice.

This is an appeal arising out of a summary judgment proceeding involving a suit for partition of military retirement benefits. Norman R. Yeo, appellee, and Doris B. Yeo, appellant, were married on January 17, 1940, and were divorced on September 3, 1964. Appellee served in the armed forces for all but the last few months of the marriage. He retired from the United States Air Force on April 23, 1964, at the age of fifty-nine with the rank of lieutenant colonel and has received military retirement benefits from that date until the present.

On July 11, 1964, at a time prior to the divorce, appellant and appellee entered into a property settlement agreement. The only reference thereto in the decree of divorce provides that “the property settlement agreement of the Plaintiff and Defendant, a copy of which is filed herein and made a part hereof, be, and it is hereby confirmed and ratified.” The property settlement agreement makes no mention of the military retirement benefits. Under the agreement appellee was awarded property of the approximate total value of $12,813, and appellant was awarded property of the approximate total value of $13,991. According to appellee’s deposition testimony, as of March, 1978, he had received net military retirement benefits of $138,029. Appellant has received none of these benefits, and she brought suit seeking a partition thereof. Appellee filed a motion for summary judgment, and appellant filed her answer thereto and an attached affidavit in opposition to the motion. Following a hearing, the trial court entered an order granting appellee’s motion for summary judgment and decreeing that appellant take nothing.

Appellant asserts on this appeal that the trial court erred in granting summary judgment because (a) the property settlement agreement did not dispose of the military retirement benefits; (b) the property settlement agreement is not plain and unambiguous; (c) appellant’s claim for military retirement benefits is not barred by the original decree of divorce; and (d) her claim is not barred as a matter of law by limitations or laches.

With respect to a summary judgment the question on appeal as well as in the trial court is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s cause of action, but rather whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of those essential elements. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against the movant. The provisions of Rule 166-A, Texas Rules of Civil Procedure, are applicable alike to defendants and plaintiffs who move for summary judgment. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Parrott v. Garcia, 436 S.W.2d 897 (Tex.1969); Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965).

It is now settled that all military retirement benefits which accrue during the marriage of the respective parties under Texas law is the community property of such parties. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.—San Antonio 1968, writ dism’d). It is equally well settled that where a divorce decree fails to provide for a division of community property, the husband and wife become tenants in common or joint owners thereof. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App.—San Antonio 1975, no writ). Under these authorities, appellant’s suit in this case is not a collateral attack on the divorce decree. It is merely a suit brought by one tenant in common against another with reference to property not affected by the prior divorce decree. Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Kirberg v. Worrell, 44 S.W.2d 940 (Tex.Comm’n App.1932, holding approved); Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App.—San Antonio 1975, no writ). Moreover, a partition of community property not disposed of in the prior divorce decree is not barred by the doctrine of res judicata. Busby v. Busby, 457 S.W.2d 551 (Tex.1970); Clendenin v. Krock, 527 S.W.2d 471 (Tex.Civ.App.—San Antonio 1975, no writ); Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.—Dallas 1973, no writ).

The summary judgment proof before us consists of the depositions of the two parties; written interrogatories and answers thereto of the parties; an affidavit by appellant in opposition to appellee’s motion for summary judgment; and certain exhibits attached to the pleadings. Some of the testimony is uncontroverted and has heretofore been set forth. The primary area of disagreement is in the matter of negotiations and execution of the property settlement agreement. Appellant does not deny that she signed the agreement nor does she urge that she was forced to sign it; she did testify, however, that the retirement benefits were never discussed prior to execution of the agreement. She contends that she relied on representations appellee made to her; that appellee assured her that his lawyer was more knowledgeable than her lawyer; that it would be best for his attorney to prepare the settlement agreement; and that she told him that this arrangement would be agreeable because she trusted him. Appellee, on the other hand, testified that some mention was made of the retirement benefits. There is testimony that appellant knew that her husband was receiving military retirement benefits, at the time of the divorce. It must be remembered, however, that in 1964 when this property settlement agreement was entered into and the divorce was granted, the state of the law as to one spouse’s right in the other spouse’s military retirement benefits was nebulous and unsettled even among lawyers. The Mora decision, cited previously, did not come until 1968, and the Supreme Court of Texas decision in Busby followed two years later.

Knowledge that community assets are undisposed of in a divorce decree does not effectuate a division or transfer of such property. Since neither the property settlement agreement nor the divorce decree in the case before us makes any mention of military retirement benefits, it is clear under the authorities previously cited that the retirement benefits remained as property not divided, and the appellant and appellee became tenants in common or joint owners thereof, unless a purported release provision or residuary clause in the settlement agreement had the effect of disposing of the military retirement benefits.

The residuary clause relied upon by ap-pellee provides as follows:

I, the said DORIS B. YEO, for the same consideration, have released, remised and quitclaimed and by these presents, to [sic] hereby forever release, remise and quitclaim unto the said NORMAN R. YEO, his heirs, executors and assigns, any and all claims to, upon and against all his property and estate, including the property herein set aside and conveyed to him, any separate property he may now have or acquire in the future, and all other property of whatever nature, separate or community, in his possession or claimed by him, and wherever located, and I do further release, remise and discharge forever and agree to hold harmless, the said NORMAN R. YEO, his heirs, executors and assigns, from any and all liability, obligations and responsibility in connection with and with respect to the property herein conveyed to me and to be conveyed to me under the terms and provisions hereof.

The basic issue before us is whether or not the property settlement agreement disposes of the military retirement benefits. Since such benefits were not mentioned in either the property settlement agreement or in the divorce decree, appellee’s argument must stand or fall on the provisions of the so-called residuary clause above set forth. The first two provisions of such clause can give little comfort to appellee (“any and all claims to, upon and against all his property and estate, . . . and any separate property he may now have or acquire in the future”). Appellant owned as her own property an undivided interest in such military retirement; her interest is not a claim against appellee’s “property and estate [or] any separate property” owned by him. Ap-pellee’s argument is thus relegated to the third provision of the agreement (“all other property of whatever nature, separate or community, in his possession or claimed by him, and wherever located”) (emphasis added). We do not regard appellant’s interest in the military retirement benefits as a “claim,” or as “property in [appellee’s] possession.”

While we have not found any decisions we regard as determinative with regard to the release or residuary clause here involved, there are several Texas cases which are at least persuasive. In Dessommes v. Dessommes, 505 S.W.2d 673 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.), [hereinafter referred to as Dessommes II] the ex-wife brought suit to establish her interest in one-half of her ex-husband’s retirement benefits which were not specifically adjudicated in a 1963 decree of divorce. The ex-husband asserted that a provision in the divorce decree which stated that “each partly] hereto keep the property now in the possession of such party as their own separate property and estate,” was effective to defeat the ex-wife’s claim. The Dallas Court of Civil Appeals disagreed, and held that “possession” could not properly be interpreted as including such intangible contract rights as those there involved. The .court noted that “[possession] is ordinarily understood as referring to property over which the parties have physical control or, at least, a power of immediate enjoyment and disposition.” Id. at 676.

In Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.—Dallas 1973, no writ), an ex-wife, as appellant, sought a partition of property not specifically set out in the divorce decree or in the property settlement agreement between the parties. The ex-husband asserted that the following language of the property settlement agreement, entitled “Release of Claims and Rights Against Other Spouse,” was sufficient to vest in him the full title to the property in question:

In consideration of all of the premises, each spouse hereby releases all claims and rights, which such spouse ever had, now has, or might hereafter have, against the other by reason of their former relationship as Husband and Wife, or otherwise, excepting only claims and rights of such spouse created and outstanding against the other pursuant to the terms of the Divorce Decree rendered by the Court, or the terms of this agreement; it being the intent hereof that each spouse accepts the provisions of this Agreement in full release and settlement of any and all claims and rights against the other.

Id. at 205. The Dallas Court of Civil Appeals in overruling the ex-husband’s contention held that “[i]n the absence of a ‘catch all’ or residuary clause in the agreement specifically providing for the disposition of property not specifically described therein, it could not reasonably be argued that such undisclosed property would be awarded to one party or to the other.” Id. at 208. The court, in answer to the husband’s argument that the language constituted a residuary clause, concluded that “this constitutes a mutual release of personal claims and has no relation to property rights. An interest in community property is not a claim or right against the other spouse.” Id. at 208 (emphasis original).

In Simmons v. Simmons, 272 S.W.2d 913 (Tex.Civ.App. —Fort Worth 1954, no writ), the court held that a property settlement agreement which was made a part of a divorce decree and which provided that each party relinquished to the other

[all] right, title, interest, claim and demand accrued and accruing in and to the property of the other, whether now in being or in possession, or hereafter acquired, . . . [and in which it was agreed that] this settlement is and forever after shall be, a bar to any suit at law or otherwise for anything growing out of the relation of the parties, as well as the property rights of the one against the other

was not effective to bar a recovery by the first wife of her deceased former husband as the beneficiary under a policy of life insurance. The court observed that “[s]he had relinquished all rights she might ever have in deceased’s property, but not in her own.”

The essential thrust of these and other cases involving broad and comprehensive release or residuary clauses in property settlement agreements is that, unless the property involved is specifically identified and described, such clauses are not effective to transfer or release property owned by the so-called “releasor.” We have concluded, therefore, that the divorce decree, in the present case, which incorporated by reference the property settlement agreement, does not constitute an adjudication or disposition of the community property interest in the military retirement benefits.

Appellee’s contention that this is a collateral attack on the divorce decree and that the divorce decree is res judicata to the present action is without merit. Such contentions are effectively disposed of in Busby, Clendenin, and Thompson, cited previously. Under these cases and other authorities, if the divorce decree fails to accomplish the disposition of all property rights of the parties then the parties remain owners of any property not disposed of as tenants in common. The law is well settled that either party to the divorce action may subsequently demand partition of property which has not previously been divided.

Appellant also urges that the trial court erred in granting appellee’s motion for summary judgment since appellant’s claim was not barred as a matter of law by limitations or laches. The trial court made no specific findings in the summary judgment on the matter of limitations or laches, and, in fact, stated that the summary judgment was granted on other grounds. Ap-pellee specially pleaded the four-year statute of limitations, and asserted that this is a suit to set aside a conveyance between husband and wife of certain marital property in which the property settlement is dated more than four years previous to the action for partition. Since appellee specially pleaded the statute of limitations as an affirmative defense, it was his burden to prove all essential facts necessary for a recovery thereunder. Moreover, as movant for summary judgment, it was further incumbent on him to establish limitations as a matter of law. He did not meet this burden.

We have previously cited Dessommes II on another matter. All three Dessommes cases have passed on and discussed the matter of limitations. In each case, the ex-wife sued for recovery of an interest in her ex-husband’s retirement plan. In Dessommes I, the Waco Court of Civil Appeals held that the record did not establish as a matter of law that her action was barred by the four-year statute of limitations. In the second appeal in the case, the Dallas Court of Civil Appeals also discussed and passed on the question of limitations. There, Mr. Des-sommes asserted that his ex-wife had the right to bring her cause of action for any interest she had in the retirement plan at any time after the divorce was granted in 1963, and argued that her action was one for recovery of personal property which was barred after four years. The court stated:

We do not agree that a cause of action for recovery of personal property accrued in 1963. Plaintiff’s present petition seeks judgment for one-half of the benefits paid to defendant since August 1, 1969, and for a mandatory injunction requiring payment to plaintiff of one-half of all future benefits. This particular cause of action did not arise until the payments began, and any previous cause of action she may have had for declaration of her rights in the fund would have arisen only on a denial or repudiation of those rights. We need not determine whether failure to commence a declaratory judgment action within four .years after repudiation of her interest in the fund would bar a subsequent action to recover her share of the benefits paid, since this record shows no such repudiation more than four years before the suit was filed.

505 S.W.2d at 677.

In Dessommes III the Texarkana Court of Civil Appeals again held adversely to Mr. Dessommes on the matter of limitations. The court there discussed the appellate opinions of the Waco and Dallas courts in the previous Dessommes decisions which had effectively determined the limitations issues there involved. The Texarkana court did, however, discuss limitations to the extent the matter had been left unresolved by the Dallas court, but did not pass on the matter of an action subsequent to Des-sommes III to recover benefits as they would thereafter accrue. In holding against Mr. Dessommes on the matter of limitations, the Texarkana court cited numerous cases, including Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929 (1935); Outlaw v. Bowen, 285 S.W.2d 280 (Tex.Civ. App.—Amarillo 1955, writ ref’d n.r.e.); Murphy v. Honeycutt, 199 S.W.2d 298 (Tex.Civ .App. —Texarkana 1946, writ ref’d).

The case before us is remarkably similar in this respect to the three Dessommes cases, as it is the appellee’s contention here that the statute of limitations began to run against appellant at the time the divorce was granted in 1964. There is nothing in the record, however, to show any repudiation by appellee of appellant’s interest in the retirement funds. The summary judgment proof does not establish limitations as a matter of law.

On similar grounds we hold that the present record raises no question of laches. One of the essential elements of laches is unreasonable delay in asserting legal or equitable rights. City of Fort Worth v. Johnson, 388 S.W.2d 400 (Tex. 1964). No unreasonable delay could be charged against appellant until her cause of action matured on denial or repudiation of her interest in the military retirement benefits. See McCampbell v. McFaddin, 71 Tex. 28, 9 S.W. 138 (1888).

It is clear that an inequitable result was reached. All the other property acquired during the marriage of appellant and appel-lee was divided between the parties on an essentially equal basis, with each receiving approximately $13,000 in property. In addition, appellee has received all of the retirement benefits which have already amounted to approximately $138,000 in net benefits. He is presently receiving in excess of $1,300 monthly in net benefits! An approved method of division of military retirement as outlined by the Supreme Court of Texas in Cearley v. Cearley, 544 S.W.2d 661, is “if, as, and when the benefits are received by the retiring spouse,” and over a period of years such benefits could amount to a substantial sum of money.

For the many reasons set forth, we have concluded that this case must be reversed. The judgment of the trial court is reversed and remanded for a new trial.

      . The quoted values are taken from the brief of the appellant and are not challenged by appel-lee. Deposition testimony by each of the parties established approximate values for various items of property awarded pursuant to the property settlement agreement.

      . This is one of three Dessommes decisions involving the same parties. For the sake of clarity, the opinions, in order of rendition, 461 S.W.2d 525 (Tex.Civ.App.—Waco 1970, no writ); 505 S.W.2d 673 (Tex.Civ.App.—Dallas 1973, writ refd, n. r. e.); and 543 S.W.2d 165 (Tex.Civ.App.— Texarkana 1976, writ refd n. r. e.), will be hereinafter referred to, respectively, as Dessommes I, II, and III.

      . Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958) provides:
      Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.

      . In Outlaw v. Bowen, the court stated that “[i]n Texas the statute of limitations does not apply to a partition suit; . . . nor to a bill to remove cloud from title; . . . nor to a suit for a declaratory judgment, at least until the provisions of such are set in action by the actual occurrence of a controversy.” 285 S.W.2d at 284.


author: COULSON, Justice.

text:
    A. KASTANOS et al., Appellants, v. Cristobal RAMOS et al., Appellees.
    No. B1962.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 25, 1979.
    Rehearing Denied May 16, 1979.

      James C. Moore, Ross, Griggs & Harrison, Houston, for appellants.
    Henry G. Dalehite, Jr., Dalehite & Youngblood, Galveston, Sidney Ravkind, Mandell & Wright, Robert C. Floyd, Butler, Binion, Rice, Cook & Knapp, Houston, for appellees.
    Before BROWN, C. J., and COULSON and CIRE, JJ.
   COULSON, Justice.

This is a jury misconduct case. Appellants Kastanos, Ladas, and Fostiropoyloy appeal from a judgment in the amount of $160,697.04 in favor of appellee Cristobol Ramos. They contend that certain factors were improperly considered by the jury, resulting in probable harm to them in the form of a higher finding of damages.

Appellee Ramos was injured in 1973 while working as a longshoreman on a ship owned by appellants. He sued appellant shipowners and the owner and operator of the crane involved in the incident. The jury absolved the latter of any negligence and found damages in the amount of $150,-000.00 to have been suffered by appellee as a result of appellants’ negligence. The parties had previously stipulated medical expenses of $10,697.04, and accordingly the trial court entered a judgment for appellee for $160,697.04.

Appellants moved for a new trial on the ground of jury misconduct. In the hearing on the motion appellants called three jurors to testify as to matters not in evidence allegedly discussed and considered during deliberation. These included the percentage of the award which would go to attorney’s fees, speculation that appellee would have to pay back money advanced by his union, appellants’ insurance coverage, and appellee’s medical expenses. The trial judge overruled the motion for a new trial and this appeal followed. We reverse and remand for a new trial.

Rule 327, Tex.R.Civ.P., provides that a new trial may be granted on grounds of jury misconduct when it is shown that such misconduct occurred, that it was material, and that it reasonably appears from the entire record that injury probably resulted to the complaining party. It is undisputed here that material misconduct occurred. We hold that probable injury, which is a question of law, was shown by appellants.

The record shows that at numerous times during deliberation on the damages issue various improper elements were discussed by the jury. In addition, the jury sent a note to the judge during this time inquiring what percentage of the award would be paid to appellee’s attorney. The testimony at the motion for a new trial indicated that this percentage was estimated by the jurors to be from sixty-five to sixty-seven percent.

This case is controlled by that of White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947). There the supreme court, considering a remarkably similar fact situation, held that a jury’s discussion of attorney’s fees is calculated to prejudice the rights of the defendant. While the record here shows a number of rebukes by the jurors and instructions by the judge, it also appears that the improper elements of damage were repeatedly brought up for discussion, even after these attempted corrective measures.

As in White Cabs, the jurors were divided, some favoring a higher figure and some a lower. They ultimately agreed on a sum falling between the two. “We do not know that the' . . . jurors who had voted for [a lower figure] were in fact induced by a discussion of attorney’s fees to agree to a verdict of [$150,000.00], for we cannot know what their mental processes were. But we believe that the reasonable conclusion . is that they were probably induced by that discussion to agree to the answer that was made.” White Cabs, supra, at 202.

Appellants do not complain directly that the verdict was excessive. Even were we to believe, however, that the amount of damages awarded finds support in the record, this can have no bearing on our decision. “[W]e would not be justified in holding by reason of that conclusion that no probable injury resulted to [appellants] from the misconduct of the jury. That would be an invasion of the province of the jury.” White Cabs, supra, at 203.

While it appears that the misconduct occurred only in connection with the damages issue, we are prevented by Rule 434, Tex.R. Civ.P., from separating this aspect of the case from the liability issues involved. Further, we feel that in the context of this case the consideration of improper matters tainted the entire outcome, and therefore reverse and remand as to all parties.

Reversed and remanded.