text:
    Arthur MURRAY, Jr., Appellant, v. Bettie TEMPLETON et al., Appellees.
    No. 8606.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 27, 1978.

      Martin Hotchkiss, Marvin G. Shwiff, Shwiff, Caraway & Emerson, Dallas, for appellant.
    Charles M. Wilson III, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Dallas, for appellees.
   RAY, Justice.

This is a wrongful death action. Bettie Templeton, individually and as next friend of Mygeish Dennis, joined by George Dennis, appellees (plaintiffs), brought suit for damages against Eugene Chandler and Cynthia Kay Lenz for the death of Barbara Murray which resulted from an automobile collision. Arthur Murray, Jr. intervened as the surviving husband of Barbara Murray. A compromise and settlement for $17,000.00 was reached and the trial court apportioned the money to the complaining parties. Arthur Murray, Jr. received only $600.00 of the total award and has perfected his appeal, submitting three points of error for our consideration.

Barbara Murray, also known as Barbara Ann Dennis, was the 22-year-old daughter of George Dennis and Bettie Templeton Roberts, also known as Bettie Templeton. Barbara was also the wife of Arthur Murray, Jr. and the mother of Mygeish Dennis.

It is undisputed that Barbara was unemployed and on welfare at the time of her demise, but was looking for employment. The evidence shows that she cared for her child, Mygeish Dennis, until the date of the fatality. Barbara was married to Arthur Murray, Jr. in November of 1974 and they remained married until her death on February 15, 1975. Barbara and Arthur, after they were married, lived together at the residence of Bettie Templeton Roberts. However, the couple separated and remained so for some time prior to the fatal accident. Bettie Templeton Roberts paid the funeral expenses for the deceased.

In appellant’s three points of error he contends that the district court erred in granting any portion of the $17,000.00 settlement to the parents of the deceased; that the court abused its discretion in making the disproportionate division of the funds; and, that this court should revise such distribution.

Under appellant’s first point of error it is contended that some portion of the $5,530.71 awarded to Bettie Templeton Roberts and George Dennis was at least partially for reimbursement of funeral expenses which appellant contends are not recoverable in a wrongful death action. Funeral expenses may be recovered either by the statutory beneficiaries who paid the same or by the estate of the decedent. In Landers v. B. F. Goodrich Company, 369 S.W,2d 33, 35 (Tex.1963), the court stated:

“Where injuries caused by the negligence of another result in death, the recovery in an action for wrongful death prosecuted under the provisions of Articles 4671 et seq. may include reasonable funeral expenses paid by the statutory beneficiaries.

The court stated further:

“. . . Although the recovery under Article 5525 is ordinarily limited to damages sustained by the decedent prior to his death, the reasonable cost of a suitable funeral constitutes a charge against the estate and is part of the expense which must be incurred as a result of the injuries. It is our opinion that the same may be recovered in an action brought by the heirs or legal representatives under the provisions of Article 5525 provided the defendant will not be subjected thereby to a double recovery. . . . ”

While Bettie Templeton Roberts paid the entire cost of her daughter’s funeral and would have been entitled to the recovery of such expenses in this case, we have concluded that she waived such recovery and that the trial court did not include in the award of $5,530.71 any portion of the funeral expenses. The award was made to appellees, Bettie Templeton Roberts and George Dennis, for the purpose of paying attorney’s fees for prosecuting the claim as next friend for Mygeish Dennis. The trial court was authorized under Article 1994, Tex.Rev.Civ.Stat.Ann. (Supp.1978), to make such an award. Minors may sue and be represented by a “next friend.” Subdivision 4 of Article 1994, supra, provides:

“If any person.has an interest in such recovery, the court may hear evidence as to such interest, and order such claim, or such part as is deemed just, to be paid to whoever is entitled to receive the same.”

We hold that under Subdivision 4, the court is authorized to reimburse the next friend for all reasonable and necessary expenses incurred in prosecuting a claim for a minor, including attorney’s fees, or the court may, upon proof by the attorney, allow reasonable attorney’s fees paid directly to the attorney out of the recovery in a next friend proceeding.

In the present case the trial court recites in its judgment the following:

“(5) That the evidence demonstrates, and the Court finds, that the most fair, just, reasonable and equitable distribution to be made of the SEVENTEEN THOUSAND DOLLARS ($17,000.00) settlement amount, is to award SIX HUNDRED DOLLARS ($600.00) to ARTHUR MURRAY, JR., Intervenor, and to award FIVE THOUSAND FIVE HUNDRED THIRTY AND 71/100 DOLLARS ($5,530.71) to MRS. BETTY TEMPLE-TON ROBERTS and GEORGE DENNIS, Plaintiffs, to cover all attorneys fees and expenses incurred by them and on behalf of said minor, and to award TEN THOUSAND EIGHT HUNDRED SIXTY NINE and 29/100 ($10,869.29) for the use and benefit of MYGEISH DENNIS, a minor.”

We hold that such award for the payment of attorney’s fees was proper. Article 1994(4), supra; Tex.R.Civ.P. 44; Wilson v. Fisher, 105 S.W.2d 304, 309 (Tex.Civ.App. Austin 1937, writ ref’d); 30 Tex.Jur.2d, Infants, Sec. 79, p. 731 (1962).

Since this case was tried to the court without a jury and no findings of fact or conclusions of law were filed, it is presumed that the trial court found the attorney’s fees to be reasonable and necessary. The evidence supports the judgment. Appellant’s first point of error is overruled.

The trial court did not abuse its discretion in its apportionment of the $17,000.00 award. The minor child was approximately one year old at the date of her mother’s death and the surviving husband and father, Arthur Murray, Jr., was twenty-four years of age. Arthur was employed as a custodian. Barbara was on welfare when she and Arthur married and she continued to draw welfare after they were married. Barbara did not work while the couple was married, though she had some training and was looking for work at the time of her death.

The evidence sustains the trial court’s distribution of the $17,000.00 award because it appears that the minor child suffered more damages than appellant. The recovery for the surviving husband is limited to the pecuniary loss sustained less the expense that would have been incurred by the husband in suitably maintaining the wife. Smith v. Farrington, 117 Tex. 459, 6 S.W.2d 736 (1928); Gulf, C. & S. F. Ry. Co. v. Southwick, 30 S.W. 592 (Tex.Civ.App.1895, no writ); Community Natural Gas Co. v. Lane, 133 S.W.2d 200 (Tex.Civ.App. Austin 1939, writ dism’d).

The minor child is entitled to recover as damages such sums as the deceased parent would have reasonably contributed to his maintenance and support and the reasonable value of the parent’s nurture, care, education, moral and mental training. It is well settled in Texas that in wrongful death actions, a minor suing for the death of his parent, can recover what he might reasonably expect to receive beyond, during and after majority, notwithstanding the absence of special conditions of infirmity on the part of the minor. Further, a minor child may recover as damages that portion of the cost of his education which he might reasonably expect to receive from his deceased mother. International & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S.W. 328 (1905); San Antonio & A. P. Ry. Co. v. Boyed, 201 S.W. 219 (Tex.Civ.App. Beaumont 1918, no writ); Texas & P. Ry. Co. v. Gullett, 134 S.W. 262 (Tex.Civ.App.1911, no writ); Texas Consolidated Transport Co. v. Eubanks, 340 S.W.2d 830, 835 (Tex.Civ.App. Waco 1960, writ ref’d n. r. e.). Since Barbara was unemployed and had continued to be unemployed during her marriage with Arthur, there was no showing by him that he expected to receive any monetary contribution from Barbara, but that he did enjoy her advice and counsel while they were married. The evidence was conflicting as to whether or not the separation between Barbara and Arthur was permanent, but the trial court as the trier of facts could have believed that the separation was permanent and that Arthur could no longer expect to enjoy the advice and counsel of the decedent, or any other benefits or contributions.

The evidence established that Barbara had always cared for her child and that she had contributed not only money and material things, but had loved and nurtured the child. Without going into great detail, we have concluded that the evidence supports the trial court’s division of the award. This Court is not authorized to substitute its judgment for that of the finder of fact unless the fact finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Main Bank & Trust v. York, 498 S.W.2d 953, 955 (Tex.Civ.App. San Antonio 1973, writ ref’d n. r. e.); Southern Pacific Transportation Co. v. Peralez, 546 S.W.2d 88, 98 (Tex.Civ.App. Corpus Christi 1976, writ ref’d n. r. e.). Appellant’s second point of error is overruled. Appellant’s third point of error is not reached.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARTINEZ BROTHERS TRUCKING COMPANY, INC. and Humberto Martinez, Appellants, v. Ben H. PAVLU, Appellee.
    No. 1425.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 28, 1978.

      Steven John Gilbert, Van Slyke & Gilbert, Richmond, for appellants.
    Donald N. Bendy, Shuart & Bendy, Eagle Lake, for appellee.
   OPINION

PER CURIAM.

Appellants perfected their appeal from a default judgment rendered against them in the 329th District Court of Wharton County in cause number 22,166-R. They timely filed their transcript in this Court and ap-pellee filed a transcription of the hearing on appellant-defendants’ motion to set aside the default judgment.

Appellants have not tendered the $25.00 filing fee as required by Rule 388a, T.R.C.P. They have also failed to file a brief or a motion requesting an extension of time to file such brief. Although Rule 414 requires appellants’ brief to be filed no later than 30 days after the record is filed, the Court may grant an extension of time upon a showing of good cause for the delay. Rule 415 permits the appellate court to dismiss the cause for want of prosecution (when the appellant fails to file his brief within the prescribed time), unless good cause is shown and that appellee has not suffered material injury thereby.

Rules 414 and 415, when read together, confer broad discretion on courts of civil appeals to dismiss or retain a cause when an appellant fails to timely file a brief. The breadth of this discretion was discussed by the Supreme Court in Hoke v. Poser, 384 S.W.2d 335 (Tex.Sup.1964). See also Akers v. City of Grand Prairie, 572 S.W.2d 22 (Tex.Civ.App.—Dallas 1978, no writ). It is our opinion that the burden rests on the appellant to come forward with facts showing good cause for filing a brief late and at the same time to show that appellee has not suffered material injury by the delay. Ordinarily, an appellant should allege facts to meet these burdens in a motion to extend time to file his brief. If no motion is filed or if the facts asserted in a motion are contested, this Court allows the appellant ample opportunity to comply with the rules. We do this with notice to all parties that the Court plans to dismiss appellant’s case unless the appellant appears at a hearing and shows cause why the case should not be dismissed.

In this case, the Clerk of this Court notified the attorneys for all parties on December 14, 1978, that the case would be dismissed on December 28, 1978, unless the appellant appeared and showed cause why it should not be dismissed for want of prosecution. The hearing was set for 9:00 a. m. on December 28. No one representing appellants appeared or answered on that date.

Accordingly, the cause is hereby dismissed for want of prosecution because the appellants failed to tender the filing fee and also failed to file a brief. See Gerdes v. First National Bank at Brownsville, 557 S.W.2d 840 (Tex.Civ.App.—Corpus Christi 1977, no writ); Continental Oil Co. v. Dobie, 552 S.W.2d 183 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Thomas v. Billingsley & Stracener, 425 S.W.2d 661 (Tex.Civ.App.—Tyler 1968, no writ); Rules 388a, 414 and 415, T.R.C.P.

Appeal dismissed.


author: HALL, Justice.

text:
    Donald RODEBAUGH, Jr., Appellant, v. Jerry Robert BEACHUM, Appellee.
    No. 5949.
    Court of Civil Appeals of Texas, Waco.
    Dec. 28, 1978.
    Rehearing Denied Jan. 25, 1979.

      Ronald A. Dubner and David Bell, Dub-ner, Weinstein & Bell, Dallas, for appellant.
    Harold Barefoot Sanders, Jr., and William Frank Carroll, Clark, West, Keller, Sanders & Butler, Dallas, Warwick H. Jenkins, Jenkins & Jenkins, Waxahachie, for appellee.
   HALL, Justice.

Plaintiff-appellant Donald Rodebaugh, Jr., filed this suit on May 31, 1978, against defendant-appellee Jerry Robert Beachum. Plaintiff set up in his petition that defendant was asserting that on October 14, 1976, in Matamoras, Mexico, plaintiff executed a promissory note for $200,000.00 payable to the order of defendant and allegedly due on January 15, 1978; that the note is a sham and was not executed by plaintiff; that defendant asserts the note was negotiated by defendant to Antonio Martinez Moreno; that defendant and Moreno entered into a conspiracy wherein defendant would allegedly assign and transfer the note to Moreno; that on February 20, 1978, a lien, known as an embargo under the laws of Mexico, was filed of record in Mexico setting out that plaintiff owes Moreno the sum $200,000.00 on the note; that the embargo is part of a conspiracy between defendant and Moreno to encumber certain real estate in Mexico; and that plaintiff will be irreparably damaged in certain particulars if defendant is not enjoined from making in person and by and through his co-actor Moreno the assertions and taking the actions on the note complained about. Copies of the alleged note and the alleged embargo, both completely written in Spanish, were attached to the petition. Plaintiff prayed for a temporary injunction pending trial, for judgment declaring the note void insofar as it allegedly related to plaintiff, and for permanent injunction.

Plaintiff’s application for a temporary injunction was set for hearing on June 23, 1978. However, on that day plaintiff’s suit was dismissed with prejudice upon the basis of a series of motions and special exceptions filed by defendant. Plaintiff brought this appeal. We reverse the judgment and remand the case for trial.

The judgment of dismissal is short, and fairly sets up the issues on this appeal. We quote it in full:

“On June 23, 1978, came on regularly for hearing Defendant’s Plea in Bar and to the Jurisdiction, Defendant’s Plea in Abatement, Defendant’s Motion to Impose Sanctions and to Dismiss, and Defendant’s Special Exceptions Nos. 1, 2, 3, 4 & 5, contained in Defendant’s Original Answer, and came the parties by their respective counsel. The Court, having considered the pleadings and the argument of counsel, and being fully advised, is of the opinion, and so finds and concludes, that (1) Defendant’s Plea in Bar and to the Jurisdiction is well taken and should be granted, (2) Defendant’s Plea in Abatement is well taken and should be granted, (3) Defendant’s Motion to Impose Sanctions and to Dismiss should be granted because on June 20, 1978, and again on June 22, 1978, Plaintiff Donald Rodebaugh, Jr., without good cause shown, failed to appear for oral deposition after proper service of notice as provided by the Texas Rules of Civil Procedure and failed to observe two Orders of the Court to appear for said oral deposition, (4) Defendant’s Special Exceptions Nos. 1, 2, 3, 4 & 5 are well taken and should be sustained, and (5) Plaintiff’s suit should be dismissed with prejudice on each and all of the grounds asserted by Defendant in the aforesaid pleadings:
“IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that Defendant’s Plea in Bar and to the Jurisdiction be, and it is hereby, sustained; that Defendant’s Plea in Abatement be, and it is hereby, sustained; that Defendant’s Motion to Impose Sanctions and to Dismiss be, and it is hereby, sustained; that Defendant’s Special Exceptions Nos. 1, 2, 3, 4 & 5 be, and each is hereby, sustained; and that Plaintiff’s suit be, and it is hereby, dismissed with prejudice, at Plaintiff’s cost, for which let execution issue.
“RENDERED AND ENTERED this 23 day of June, 1978.”

Defendant’s plea in bar and to the jurisdiction was based upon allegations (1) that plaintiff’s suit was a collateral attack of a judgment rendered between the parties on February 21,1978, in the State of Tamauli-pas, Mexico; and (2) that plaintiff’s petition shows on its face that plaintiff “seeks determination of title and priority of claims to real property located within the boundaries of Mexico, and that the suit involves a note executed in Mexico, payable in Mexico, assigned in Mexico, the holder of which is in Mexico, and enforced against real property in Mexico.” Allegedly true and correct copies of the pleadings and judgment in the Mexican Court were attached to defendant’s plea in bar and to the jurisdiction. They numbered 28 pages. Fourteen of the pages were in Spanish and fourteen were in English.

Defendant’s plea in abatement was based upon allegations (1) that there was a lack of joinder of necessary and indispensable parties, namely Moreno and also Josefina Juarez de Rodebaugh who defendant said was also shown to be a maker of the note in plaintiff’s petition; and (2) that a suit filed on February 7, 1978, and presently pending in the United States District Court for the Northern District of Texas, Dallas Division, styled Jerry Robert Beachum and Ann Ber-set Beachum v. Rancho Camille, S.A., Frui-ticola La Isla, S.A., Donald G. Rodebaugh, Josefina Juarez de Rodebaugh and John W. Swigart, “involves some of the same parties and encompasses the subject matter of [this] suit”; and (3) there was no justiciable controversy between the parties within the jurisdiction of the court because “the suit involves a note executed in Mexico, payable in Mexico, assigned in Mexico, the holder of which is in Mexico, and enforced against Mexican property.”

Defendant’s special exceptions 1, 2, 3, 4 and 5 were simply assertions that plaintiff’s petition established the truth of the five grounds set forth in defendant’s plea in bar and to the jurisdiction and plea in abatement. Each contained the prayer that plaintiff’s petition be stricken.

No evidence was adduced on the plea in bar and to the jurisdiction and on the plea in abatement. And we do not agree with defendant that any of the allegations of those pleas are conclusively established by plaintiff’s pleadings. Therefore, the pleas and the special exceptions were improperly sustained because of want of proof. Railroad Commission v. Shell Oil Co., 164 S.W.2d 773, 774 (Tex.Civ.App.— Austin 1942, writ ref.). The person Josefina Juarez de Rodebaugh is not mentioned in plaintiff’s petition and its exhibits. Plaintiff’s pleadings were quite general in several material respects, but the special exceptions sustained by the court did not relate to that fact. We believe plaintiff’s petition may be reasonably interpreted as alleging that defendant now holds or controls the sham note pleaded by plaintiff and is acting in the premises complained about through Moreno. Defendant answered the suit. Plaintiff’s allegation that defendant is a resident of the county of suit is not questioned. Plaintiff seeks judgment declaring the note to be void, and an injunction preventing defendant’s claims and actions on the note both in person and through his co-actor, Moreno. It is our view that plaintiff’s pleadings set up an in personam action against defendant and assert a justiciable controversy within the court’s jurisdiction.

Defendant asserts the fourteen pages in English attached to his plea in bar are interpretations of the fourteen pages in Spanish, and that they support his contention that this suit is a collateral attack on a judgment rendered by a court in Mexico. The interpretations are hearsay in the present record. See, 1 McCormick & Ray, Texas Law of Evidence (2d ed. 1956), p. 572, § 789.

On June 13, 1978, after defendant had been served with citation on June 9th, defendant moved for the taking of the deposition prior to appearance day (under the provisions of Rule 186b, Vernon’s Tex.Rules Civ.Proe.) reciting in the motion the need for the deposition prior to the hearing on plaintiff’s application for temporary injunction on June 23rd. The motion was granted. The uncontradicted evidence shows that thereafter neither plaintiff nor his attorney appeared for the taking of the deposition on June 20th, nor again on June 22nd, as ordered by the court, although notice was served in each instance on plaintiff’s counsel. Thereupon, defendant moved the court to dismiss plaintiff’s suit under the sanctions provided in Rule 215a(c) Vernon’s Tex.Rules Civ.Proe. The motion was heard on June 23rd, and the dismissal in question was ordered.

The only evidence adduced in the case was on defendant’s motion for dismissal for failure of plaintiff to appear for oral deposition. That evidence shows without dispute that during the time in question plaintiff’s whereabouts were unknown to his counsel; that during the time between June 13th and June 22nd plaintiff’s counsel made more than thirty telephone calls and made a trip from Dallas to plaintiff’s residence in Bosque County in unsuccessful attempts to locate plaintiff; that on the evenings prior to the deposition settings on June 20th and June 22nd, plaintiff’s counsel contacted defendant’s counsel and told him plaintiff had not been located; and that plaintiff still had not been located at the time of the hearing on June 23rd.

It is provided in Rule 215a(c) that if a party “except for good cause shown” fails to appear for the taking of his oral deposition the court may, among other sanctions permitted, dismiss the action “or make such other order with respect thereto as may be just.” We recognize that the imposition of those sanctions is addressed to the discretion of the court. Nevertheless, the primary office of discovery sanctions is not punishment, but to secure compliance with the discovery rules and prevent a party from arbitrarily and wantonly absenting himself from giving evidence in aid of litigation. Plodzik v. Owens-Corning Fiberglas Corp., 549 S.W.2d 52, 54 (Tex.Civ.App.—Austin 1977, no writ); Ebeling v. Gawlik, 487 S.W.2d 187, 190 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ).

Plaintiff initiated this suit and sought an early hearing for an injunction against defendant. Plaintiff should have kept himself immediately available for developments in the case. His reason for failing to do so is not shown in the record. However, the evidence does not support a finding that plaintiff willfully absented himself to avoid his deposition. Rather, as we have said, it shows without dispute that he never learned of the deposition orders because within the critical time period of only nine days which produced the dismissal his whereabouts were totally unknown to his counsel although diligent effort was made to locate him. Accordingly, we hold the court abused its discretion. It is also true, as we have stated, that plaintiff’s counsel also failed to appear at the times ordered for the taking of the deposition. Such neglect cannot be condoned, but the only evidence on the question (which we have not set forth in full) shows that plaintiff’s counsel kept defendant’s counsel apprised of plaintiff’s absence and the search for him, and it does not support a finding that counsel was acting in willful disregard of the court’s orders.

It is doubtful that plaintiff’s counsel would have sought hearing on the application for temporary injunction until plaintiff was located. In any event, until plaintiff was located and deposed, orders other than the harsh order of dismissal of the suit with prejudice would have given defendant the protection he sought by the deposition. For example, the hearing on the application for temporary injunction could have been postponed, with proper assessment of costs against plaintiff.

The judgment is reversed and this case is remanded for trial.

      . Additionally, plaintiff correctly asserts that an order dismissing with prejudice is a judgment on the merits, and that a dismissal for want of jurisdiction for any reason is not a trial on the merits and may not be made with prejudice. Schenker v. City of San Antonio, 369 S.W.2d 626, 630 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.).


author: YOUNG, Justice.

text:
    Arturo GARZA, Jr., ex ux., Appellants, v. Diana Elsa SCHILLING, Appellee.
    No. 1380.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 29, 1978.

      Norma D. Gonzales, Oxford, Oxford & Brasier, Edinburg, for appellants.
    Mario H. Rivera, Coastal Bend Legal Services, Inc., Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

The primary issue in this appeal is what, if any, venue provisions apply to a habeas corpus suit filed under Tex.Fam.Code Ann. § 14.10(e) (Supp.1978).

On April 10, 1978, Diana Elsa Schilling, appellee, filed in Nueces County an application for writ of habeas corpus seeking return of her child, Reuben Christopher Schilling, who was allegedly being illegally restrained in Hidalgo County by Arturo, Jr., and Maria Estella Garza, appellants. That same day, the court entered an order setting a hearing on the application for April 18, 1978, and granted a writ of attachment ordering that Reuben be produced in court on April 18. Appellee’s application for attachment briefly explained that she had given birth to Reuben on January 22, 1978. She retained custody of the baby until March 6, 1978, when she placed the child in the possession of her cousin, Reymundo Martinez. Martinez later delivered the child to the appellants for adoption. Appel-lee subsequently requested the appellants to return the child, but they repeatedly refused. Appellee then applied for the instant writ. Appellants had filed a plea of privilege on April 17 to have the proceeding transferred to Hidalgo County.

The application for habeas corpus came on for hearing before the trial court on April 18. The appellants produced Reuben in court as requested. To this time, appel-lee had not responded to the appellants’ plea of privilege by filing a controverting affidavit. At the beginning of the hearing, however, she did request that the court allow her ten days to respond to the plea. Instead of granting the request, the court asked counsel for the appellants to stipulate that the appellee had filed a sworn controverting affidavit stating that appellee was the mother of the child and that she resided in Nueces County. Appellants agreed to such request and also stipulated that appel-lee was indeed the mother of the child. The court then overruled the appellants’ plea of privilege.

Immediately thereafter, appellants’ counsel introduced a document entitled “Respondents’ Answer, Cross-Action, Request for Termination of Parent-Child Relationship, & Temporary Orders to Applicant’s Habeas Corpus Application.” The document had not, to that time, been filed with the clerk, but the parties agreed to hear the request in the responsive pleading for temporary orders. After hearing argument of counsel, the court entered an order establishing the child’s maternal grandmother, Mrs. Mary Vallejo, as temporary managing conservator; the child’s mother, appellee, as temporary possessory conservator; and appellants as temporary possessory conservators for one hour per week. Appellants do not appeal from the granting of the temporary orders but appeal only from the denial of the plea of privilege.

Appellants bring one point of error wherein they contend that the trial court erred in overruling their plea of privilege because the venue provisions of Tex.Rev. Civ.Stat.Ann. art. 1995 (1964) apply and require that the habeas corpus application be transferred to Hidalgo County, the residence of the appellants.

In order to evaluate appellants’ assertion, we must determine first whether the venue provisions in Tex.Fam.Code Ann. § 11.04 (Supp.1978) control the instant case, and, if not, whether the venue provisions of Article 1995 control.

Section 14.10 of the Family Code sets forth the rules applicable to a habeas corpus proceeding initiated for the purpose of regaining possession of a child. Prior to the promulgation of this Section, an application for habeas corpus brought to regain possession of a child was deemed to also raise the issue of proper custody. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953). See Jones, Child Custody Modification and the Family Code, 27 Baylor L.Rev. 725 (1975). Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894) was a forerunner of the cases which combined the issue of proper custody with the right of possession in a habeas corpus proceeding. Venue in such modified habeas corpus suits was dictated by Article 1995. Knollhoff v. Norris, supra; Chambers v. Wilson, 448 S.W.2d 861 (Tex.Civ.App.— Houston [1st Dist.] 1969, no writ).

Section 14.10 of the Family Code overruled the prior case law which previously permitted a habeas corpus proceeding to put the right of custody in issue. Trader v. Dear, 565 S.W.2d 233, 235 (Tex.Sup.1978); Strobel v. Thurman, 565 S.W.2d 238, 239 (Tex.Sup.1978). See Smith, Commentary on Title Two, Texas Family Code, 5 Tex. Tech.L.Rev. 389, 435-36 (1974). Strobel v. Thurman set out the change in the law as follows:

“The Code restored the writ of habeas corpus to its purpose as an ancient common law writ. As such, it is a ready means for deliverance of a child from an unlawful detention. It has often been termed the Great Writ. Its special value comes not only from its purpose, but also from the speed and simplicity with which it may and should be employed.”

Strobel and Trader both dealt with habeas corpus proceedings involving subsection (a) of Section 14.10 of the Family Code, namely, the one in which custody of the child was controlled by prior court order. We hold that the purpose of a habeas corpus proceeding brought under Section 14.-10(e) is identical to the purpose of a proceeding brought under subsection (a) as stated above. In other words, a proceeding brought under Section 14.10(e) should also be treated as an ancient common law writ; i. e., it should be expeditiously and simply treated with the sole purpose of giving possession to a parent with that right. See Smith, Commentary on Title Two, Texas Family Code, 8 Tex.Tech.L.Rev. 19, 90 (1976).

Section 14.10, however, makes no provision for the venue of a habeas corpus proceeding brought under its terms. The venue provision in the Family Code, Section 11.04 provides:

“(a) Except as otherwise provided in this subtitle, a suit affecting the parent-child relationship shall be brought in the county where the child resides . . . ” (Emphasis supplied)

Thus, the venue provision applies only to a “suit affecting the parent-child relationship.”

Tex.Fam.Code Ann. § 11.01(5) (1975) defines a suit affecting the parent-child relationship as “a suit brought under this subtitle in which . . . access to . . . a child ... is sought.” “Access to”, as used in Section 11.01(5), is limited to a suit brought for determination of the legal right of access to a child rather than to enforce a right of possession under a court order or by virtue of parental rights as enumerated in Tex.Fam.Code Ann. § 12.-04 (Supp.1978). Ex Parte Jabara, 556 S.W.2d 592, 596 (Tex.Civ.App.—Dallas 1977, no writ). See also Trader v. Dear, supra at 235. A proceeding brought under Section 14.10(e) is brought solely for the purpose of preventing illegal restraint of a child, rather than determining who has the legal right to possession. Consequently, it is not a “suit affecting the parent-child relationship” and the Family Code venue provision, Section 11.04, does not apply to a proceeding under Section 14.10(e).

We next consider whether Article 1995 pertains to a habeas corpus proceeding under Section 14.10(e). We think it does not.

Article 1995 provides in pertinent part:

“No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases; . . . ”

This language clearly requires a “suit” in order for the venue provisions to apply. Appellants rely upon Knollhoff v. Norris, supra, for the proposition that a habeas corpus proceeding involving possession of a child is subject to the venue provisions of Article 1995. Knollhoff concerned a habeas corpus proceeding brought by a divorced father to gain possession of his child, after the mother, who formerly had custody of the child, died and third parties husband and wife, the Knollhoffs, took possession of the child. The Knollhoffs filed a plea of privilege to be sued in their home county. The Supreme Court held that the habeas corpus suit was a civil action so as to be within the purview of the venue statute. Its underlying rationale was twofold. First, the Court stated that any habeas corpus proceeding automatically involves the court’s power to adjudicate custody, and a custody determination is like any other civil suit which is controlled by the venue statutes. Secondly, the court asserted that when a parent files a habeas corpus proceeding seeking return of a child, the parent, of necessity, becomes an adversary and the action takes on the character of a civil suit.

The law relative to habeas corpus proceedings has changed, though. Trader v. Dear, supra. Custody is no longer involved, and thus the rationale that a habeas corpus proceeding is tantamount to a custody suit for purposes of venue no longer applies. The second part of the rationale, that a habeas corpus proceeding necessarily becomes an adversary suit because the party in alleged illegal possession of a child is adverse to the parent of the child, also no longer applies. Custody is no longer an issue in the habeas corpus proceeding. The relief sought is on the child’s behalf; i. e., to have the child produced in court and delivered to its then rightful custodian. This is not a civil suit but is rather an “exercise of a special jurisdiction conferred by the Constitution and laws upon either the courts or judges, for the prompt relief of the citizen against any improper interference with his personal liberty.” McFarland v. Johnson, 27 Tex. 105, 109 (1863); Knollhoff v. Norris, supra at 85 (Wilson, J., dissenting), Tex.Const. art. I, § 12, art. V, § 8. Knollhoff no longer controls the venue issue in a habeas corpus action to gain possession of a child.

Furthermore, it should be noted that at the time the plea of privilege herein was considered, the appellants had not joined issue with the appellee on the merits of the proceeding; the issue of rightful custody was uncontested; appellants admitted that appellee was the child’s mother and merely made allegations concerning the proper venue. Moreover, appellee’s pleadings only requested that Reuben be released from illegal restraint. No issue as to proper custody was raised.

To hold that one could bring a plea of privilege in the instant habeas corpus proceeding would destroy the very function which habeas corpus was designed to serve; i. e., speedy relief from illegal restraint. Compare Ex Parte Ramzy, 424 S.W.2d 220 (Tex.Sup.1968). Allowing a plea of privilege to be urged in the instant suit would be contrary to the previously stated purpose of Section 14.10(e).

Accordingly, we find that the venue provisions of Article 1995 do not apply to a habeas corpus proceeding under Section 14.-10(e) of the Family Code. The trial judge properly overruled appellants’ plea of privilege.

The judgment of the trial court is affirmed.

      . “§ 14.10 Habeas Corpus
      (a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
      (b) The court shall disregard any cross action or motion pending for modification of the decree determining managing conservatorship, possession, or support of or access to the child unless it finds that:
      (1) the previous order was granted by a court that did not have jurisdiction of the parties; or
      (2) the child has not been in the relator’s possession and control for at least 6 months immediately preceding the filing of the petition for the writ.
      (c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.
      (d) While in this state for the sole purpose of compelling the return of a child through a ha-beas corpus proceeding, the relator is not amenable to civil process and is not subject to the jurisdiction of any civil court except the court in which the writ is pending and in that court only for the purpose of prosecuting the writ.
      (e) If the right to possession of a child is not governed by a court order, the court in a habe-as corpus proceeding involving the right of possession of the child shall compel return of the child to the relator if, and only if, it finds that the relator has a superior right to possession of the child by virtue of the rights, privileges, duties, and powers of a parent as set forth in Section 12.04 of this code.
      (f) The court shall disregard any motion for temporary or permanent adjudication relating to the possession of the child in a habeas corpus proceeding brought under Subsection (e) of this section unless at the time of the hearing an action is pending under this statute, in which case the court may proceed to issue any temporary order as provided by Section 11.11 of this code.”


text:
    ANGLO EXPLORATION CORPORATION et al., Appellants, v. John GRAYSHON et al., Appellees.
    No. 1357.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 29, 1978.
    Rehearing Denied Jan. 25, 1979.

      William G. Lowerre, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, Edward B. Rather, Gonzales, for appellants.
    Royal D. Adams, San Antonio, A. L. Hernden, Frederick R. Zlotucha, San Antonio, Houston Munson, Gonzales, for appel-lees.
   OPINION

YOUNG, Justice.

In this venue case, appellants, defendants below, Anglo Exploration Corporation and A. W. Dugan, were sued by appellees, plaintiffs below, John Grayshon and Robert W. Hopf to recover certain overriding royalty interests in several oil and gas leases, or in the alternative cash damages. Appellants filed a plea of privilege to be sued in the county of their residences and appellees controverted asserting that the suit should remain in Gonzales County, Texas, where the disputed leases were located, under Tex. Rev.Civ.Stat.Ann. art. 1995(7), (14), (27) and (29a). After a hearing the district court overruled appellants’ plea.

Findings of fact and conclusions of law were not filed nor need they be filed in a plea of privilege case. See Rule 385(e), T.R.C.P. Where they are not filed, the judgment may be affirmed if there is sufficient evidence to support it upon any lawful theory. Every issue sufficiently raised by the evidence must be resolved in support of the judgment. Levinson v. Slater, 565 S.W.2d 337, 339 (Tex.Civ.App.—Corpus Christi 1978, no writ).

Appellants bring 20 points of error challenging each exception to the general venue statute that appellees asserted in their controverting affidavit. We hold that appellants’ points 1 through 5 concerning Subdivision 14 should be overruled. Consequently, we affirm the trial court’s judgment upon the theory that Subdivision 14 controls this ease. Therefore we need not discuss Subdivisions 7, 27 and 29a.

The venue facts under Subdivision 14 are: 1) the nature of plaintiff’s claim and 2) the location of the land. Levinson v. Slater, supra. The parties stipulated that the leases in question are located on land in Gonzales County, Texas. Thus, appellees need only show that the nature of their claim comes within the terms of the exception.

The record on appeal includes the transcript and a 14 page statement of facts with an attached exhibit. For purposes of determining the nature of the suit, though, we look only to the facts alleged in appellee’s petition, the rights asserted, and the relief sought. Levinson v. Slater, supra.

The pertinent allegations of appellees’ original petition appear as follows:

“HI
Plaintiffs would show unto the Court and Jury that prior to entering into the agreement and the relationship that is made the basis of this suit, that there existed between Plaintiffs and Defendants a fiduciary relationship and that said relationship was prior to and apart from the transactions made the basis of this suit.
IV
Plaintiffs would show unto the Court and Jury that each of them are practicing geologists and as such are familiar with prospective oil and gas producing properties or possess the necessary professional ability and qualification to evaluate prospective oil and gas prospects. That in connection with their learned profession that they entered into an oral agreement with Defendants for the mutual benefit of all parties wherein they would jointly locate, evaluate, acquire, sell, trade, assign and/or otherwise dispose of prospective oil and gas producing properties. The parties agreed that it would be the responsibilities of Plaintiffs to assist in locating evaluating and disposing of any properties acquired and that it would be the responsibilities of Defendants to acquire, pay for or finance and assist in selling or disposing of such properties. The parties agreed that they would divide the profits and/or proceeds from their endeavors on the basis of Plaintiffs receiving twenty percent (20%) and Defendants receiving eighty percent (80%). It was specifically agreed by and between the parties that the twenty percent (20%) to be received by Plaintiffs and the eighty percent (80%) to be received by Defendants applied to any cash or other things of value received and was to include said percentage of any mineral interest retained.
V
In connection with the pursuing of the joint agreement of the parties and for their mutual benefit, there came to the attention of the parties, the availability for mineral leasing various properties that were located in the area of interest and probable producing areas as determined by your Plaintiffs; that your Plaintiffs evaluated the geology on the areas and recommended that leases be obtained within certain limits, after evaluating geological information. Based upon such advice by Plaintiffs, Defendants acquired numerous leases and most, if not all, were taken in the name of ANGLO EXPLORATION CORPORATION. Defendants, A. W. DUGAN, is President of ANGLO EXPLORATION CORPORATION. After acquiring the mineral leases, they were thereafter sold to various individuals and/or companies by assignments from ANGLO EXPLORATION CORPORATION. There is attached hereto and marked Exhibit “A” a listing of said assignments and the same is included herein, the same as if copied verbatim and all of the properties referred to and/or described in said assignments are the subject matter of this suit.
VI
Plaintiffs would show unto the Court that the assignments from Defendant to the various assignees provided for reservation of various mineral interests. Under the terms of the agreement between Plaintiffs and Defendants, Plaintiffs immediately became entitled to twenty percent (20%) of all of the mineral interest retained in said assignments and, therefore, are the equitable owners of twenty percent (20%) of the interest retained in each of the assignments described in Exhibit “A”. The mineral interest herein alleged to be owned by Plaintiffs is currently being held in the name of ANGLO EXPLORATION CORPORATION and Plaintiffs claim a constructive trust as to such mineral interest.
X
Plaintiffs would further show unto the Court and Jury that Defendants have taken various steps and actions in order to prevent your Plaintiffs from receiving their interest in the various leases and that Defendants have failed and refused to execute acknowledge and deliver to Plaintiffs a written assignment evidencing their interest in and to said leases. Defendant, A. W. DUGAN, individually and as President of ANGLO EXPLORATION CORPORATION, has stated to Plaintiffs from time to time that their interest in and to said leases would be assigned to them and that as a result of said actions by Defendants, Plaintiffs have refrained from taking earlier action and, in addition thereto, entered into numerous other transactions on the same or similar basis. The actions of the Defendants show that these representations were in fact false and fraudulent and resulted in the affect of defrauding and depriving your Plaintiffs of the pro rata interest that they were and are rightfully entitled to receive. Because of the fraudulent conduct of the Defendants and the refusal to carry out their agreement, it has become necessary for Plaintiffs to institute this litigation. . . . ”

There follows in plaintiffs’ petition descriptions of four oil, gas and mineral leases, dated in 1975 and 1976, on land in Gonzales County.

A suit for specific performance of a contract to assign an interest in land is not within Subdivision 14 of Article 1995. Levinson v. Slater, supra, Calvert v. Greene, 326 S.W.2d 592 (Tex.Civ.App.—San Antonio 1959, no writ). But a suit claiming equitable title to land by means of a constructive trust does come within Subdivision 14. Carstairs v. Bomar, 119 Tex. 364, 29 S.W.2d 334 (Tex.Comm’n App.1930, opinion adopted), Levinson v. Slater, supra.

Appellants argue that the facts herein merely allege a suit for specific performance of a contract to assign an interest in land. We disagree. Upon reviewing the allegations in appellees’ petition, we find the primary nature of this suit is not one for specific performance of a contract. Rather we find that the allegations show that the primary purpose of the suit is to establish, through a constructive trust, an equitable title to 20% of the overriding royalty interest received by the appellants under the leases alleged to herein.

A primary circumstance from which the law will raise a constructive trust is the breach of a confidential relationship. Gaines v. Hamman, 358 S.W.2d 557 (Tex.Sup.1962). Appellees’ petition in paragraph III specifically alleges “that there existed between Plaintiffs and Defendants a fiduciary relationship and that said relationship was prior to and apart from the transactions made the basis of this suit.”

Furthermore, appellees allege in paragraph IV and V that the parties were working essentially as joint venturers; e. g., that the plaintiffs “entered into an oral agreement with Defendants for the mutual benefit of all parties wherein they would jointly locate, evaluate, acquire, sell, trade, assign and/or otherwise dispose of all prospective oil and gas producing properties.” This relationship can give rise to a constructive trust. Omohundro v. Matthews, 341 S.W.2d 401 (Tex.Sup.1960). Moreover, ap-pellees assert in paragraph V that several leases were executed subsequent to appel-lees’ giving the geological information to appellants. Use of a confider’s knowledge or information by a confidant who stands in a confidential relationship may give rise to a constructive trust. Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (Tex.Sup.1954). Finally, appellees assert in paragraph X that appellants’ actions constituted a fraud. Fraud may also give rise to a constructive trust. Gourley v. Fields, 348 S.W.2d 787 (Tex.Civ.App.—Eastland 1961, no writ).

We recognize that the nature of a suit is to be determined by the “facts” alleged in the petition, Levinson v. Slater, supra, and that it might be asserted that some of the above allegations supporting our decision are in the nature of conclusions. But challenges to the legal sufficiency of the allegations in the petition which are incorporated in the controverting affidavit should be made by special exceptions. This then gives the plaintiff an opportunity to amend his pleadings if they are not specific enough. Levinson v. Slater, supra. Appellants’ failure to so except in the instant case to the conclusory allegations constituted a waiver of such deficiencies for purposes of venue. Consequently, we are required to construe the allegations liberally and indulge every reasonable intendment to sustain the controverting plea. Levinson v. Slater, supra. Accordingly, we find the nature of appellees’ suit to be one asserting an equitable title which comes within Subdivision 14.

The judgment of the trial court is affirmed.

      . All statutory references are to Vernon’s Civ. Stats.Ann. unless otherwise noted.


author: ROBINSON, Chief Justice.

text:
    WASHINGTON LOAN AND FINANCE CORPORATION, Appellant, v. SECURITY NATIONAL BANK OF LUBBOCK, Appellee.
    No. 8908.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 29, 1978.
    Rehearing Denied Jan. 29, 1979.

      Wynne & Jaffe, Donald C. McCleary, Dallas, for appellant.
    Walters & Associates, James A. Walters, Lubbock, for appellee.
   ROBINSON, Chief Justice.

Washington Loan and Finance Corporation appeals from an order of the trial court overruling its plea of privilege to be sued in Dallas County. Reversed and remanded.

On February 9, 1977, Peter Payne purchased the six-year $100,000 Certificate of Deposit No. 11981 from Dallas International Bank. On the same day Payne executed an agreement assigning to Washington Loan “all interest now and hereafter payable on Certificate of Deposit No. 11981.” This assignment of interest accruing on the Certificate of Deposit was acknowledged by Dallas International Bank, which agreed to pay the interest directly to Washington Loan. The following day, February 10, 1977, Payne signed a $100,000 promissory note at Security National Bank of Lubbock, Texas. The note was due on February 10, 1979, unless demand be made before that time, at Lubbock, Texas. The obligation was secured by the $100,000 Certificate of Deposit from Dallas International Bank, evidenced by a security agreement executed simultaneously with the note. The security agreement stated that “[t]he Collateral of this Security Agreement is CD of the following description: Assignment of CD # 11981 in the amount of $100,000 from Dallas International Bank for 72 months at the rate of 7.50% . . . .” The Certificate of Deposit was in the possession of Security National Bank at all times after February 10, 1977. It is uncontroverted that Security National Bank was not advised that anyone else had any claim whatsoever to the Certificate of Deposit. It is also undisputed that on May 4,1977, Security National Bank made demand for payment of the promissory note. Neither principal nor interest has been paid, and the note is in default.

Plaintiff Security National Bank’s first amended original petition, filed in Lubbock County, alleged a cause of action against Peter Payne, Washington Loan and Finance Corporation, and Charles Goldberg. Defendant Washington Loan filed a plea of privilege to transfer the cause to Dallas County, the county of its residence. Security National Bank filed a controverting plea alleging that venue was proper in Lubbock County as to defendant Washington Loan pursuant to either subdivision 4, subdivision 7, or a combination of subdivisions 5 and 29a of article 1995, Tex.Rev.Civ.Stat.Ann. (Vernon 1964 & Supp.1978-1979). A hearing was held on the plea of privilege and the trial court overruled the plea. Findings of fact and conclusions of law were requested and filed.

The effect of findings of fact filed by the trial court is set out in Rule 299, Tex.R. Civ.P., as follows:

Where findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; but where one or more elements thereof have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment. Refusal of the court to make a finding requested shall be reviewable on appeal.

The findings and conclusions filed in the instant case are titled “Partial Conclusions of Law and Fact,” and state that pursuant to Rule 385(e) the court did not make further findings and conclusions, so as not to delay the timely filing of the record. Under Rule 385(e) the trial court is not required to make and file findings of fact and conclusions of law in a venue hearing; however, if it does so, it must make findings on all material issues in the case. An appellate court will not presume findings in favor of a material issue on which findings were omitted. Bryant v. Kimmons, 430 S.W.2d 73, 75 (Tex.Civ.App.—Austin 1968, no writ); Kimbell, Inc. v. Moreno, 563 S.W.2d 350, 352 (Tex.Civ.App.—Amarillo 1978, no writ). Express findings made by a trial court cannot be extended by implication to cover further independent issuable facts. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627, 634 (1957).

The trial court did not make findings of fact and conclusions of law supporting Security National’s allegations that venue was proper under subdivision 4 or 7 of article 1995. Further, even if the findings could be construed so as to permit deemed findings On omitted issues, plaintiff could not maintain venue in Lubbock County under those subdivisions.

In order to sustain venue under subdivision 4, plaintiff must prove by affirmative evidence that one defendant resided in Lubbock County. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302 (1936); Socony Mobil Co., Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257, 263 (Tex.Civ.App.—Corpus Christi 1974, no writ). It is sufficient to show that the defendant was a resident in the county at the time the suit was filed or became a resident thereafter but before the disposition of the plea. Wrenn v. Pilgrim, 360 S.W.2d 420, 423 (Tex.Civ.App.—Texarkana 1962, no writ). We have examined all of the evidence and conclude that the probative evidence is factually insufficient to support a finding that Payne was a resident of Lubbock County at the time the suit was filed or thereafter.

Subdivision 7, art. 1995, provides that in cases of fraud suit may be brought in the county where the fraud was committed. Subdivision 7 requires that plaintiff plead and prove by a preponderance of the evidence that the defendant committed actionable fraud in the county where the suit was filed. Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896, 898 (1922); Brooks v. Parr, 507 S.W.2d 818, 819 (Tex.Civ.App.-Amarillo 1974, no writ). We have examined the evidence in the light most favorable to findings of fraud and conclude that there is no evidence establishing actionable fraud on the part of Washington Loan. Further, we do not find that Washington Loan is a necessary party to any cause of action for fraud that Security National may have against Payne. Thus, if plaintiff is to maintain venue in Lubbock County, it must do so under a combination of subdivisions 29a and 5.

Subdivision 29a authorizes a plaintiff, who sues two or more defendants in a county where venue is proper as to one defendant under some subdivision of article 1995, to maintain venue in that same county against all necessary parties to the cause of action. Before subdivision 29a can apply, four conditions must be met:

(1) the action must be against two or more defendants;
(2) all defendants must reside outside the county of suit;
(3) venue must be proper against at least one of the defendants under some exception of the general venue rule;
(4) the defendant urging the privilege must be a necessary party to the claim against the defendant as to whom venue is proper.

1 R. McDonald, Texas Civil Practice § 4.36 (rev.1965).

The trial court made a conclusion that “[t]he claim of Defendant Washington Loan and Finance Corporation to an assignment of the accrued interest under the certificate of deposit, creates a junior lien or claim on the certificate of deposit; and Defendant Washington Loan and Finance Corporation is a necessary party in a suit to foreclose the security agreement.” Therefore, to determine the applicability of 29a, we first consider whether Washington Loan is a necessary party to Security National’s suit against Payne to foreclose its security interest in Certificate of Deposit 11981.

Every person whose joinder is necessary to afford the plaintiff the full relief to which he is entitled in his suit is a necessary party within the meaning of subdivision 29a. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758, 764 (Tex.1956); Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 775 (1944). Our Supreme Court has held that the only necessary parties in a suit to foreclose a mortgage or similar lien are the mortgagor and the mortgagee, and those who have acquired any interest from them subsequent to the mortgage or lien. One who is merely claiming some interest in mortgaged property upon which foreclosure is sought is not a necessary party under subdivision 29a. Shaw v. Allied Finance Co., 161 Tex. 88, 337 S.W.2d 107, 110 (Tex.1960). The interest alleged must be such that the mortgagee seeking foreclosure could not obtain the relief to which he is entitled under his mortgage without the presence of the claimant of such interest as a party to the suit. Shaw v. Allied Finance Co., supra, 337 S.W.2d at 110. See e. g., Colonial Savings and Loan Association v. Texboro Cabinet Corp., 401 S.W.2d 357 (Tex.Civ.App.—Fort Worth 1966, no writ) (actual junior lienholders).

Washington Loan claims its interest under an unconditional assignment which was made before Payne executed the note and security agreement. We conclude that the joinder of Washington Loan is not necessary to afford Security National full relief in its foreclosure suit against Payne and that Washington Loan is not a necessary party to that suit. Thus, venue cannot be maintained in Lubbock County under subdivision 29a.

The foregoing holdings are dispositive of this appeal. We do not reach appellant’s remaining points of error. The judgment of the trial court is reversed and the cause remanded.

      . The trial court granted the motion of Security National Bank for a non-suit against defendant Charles Goldberg on November 3, 1977.


author: REYNOLDS, Justice.

text:
    Joe HASTEY, C. N. Harrison and Larry Morris, and the Fireplace Place, a Partnership, Appellants, v. Houston HUMPHRIES et ux., and American Home Assurance Company, Appellees.
    No. 8922.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 29, 1978.
    Second Rehearing Denied Jan. 29, 1979.

      Underwood, Wilson, Sutton, Berry, Stein & Johnson, R. A. Wilson, Amarillo, for appellants.
    V. G. Kolius, Amarillo, Timothy E. Kelley, Dallas, Kolander & Hamilton, R. C. Hamilton, Amarillo, for appellees.
   ON MOTION FOR REHEARING

REYNOLDS, Justice.

Upon further consideration, we conclude that the judgment for plaintiffs must be reversed and the cause remanded because an unresolved essential element of plaintiffs’ causes of action was omitted, over objection, from the jury’s consideration. We, therefore, grant the defendant-subcontractors’ motion for rehearing, withdraw our 13 November 1978 opinion, set aside our judgment, and substitute this opinion.

Houston Humphries and wife, Dorothy Humphries, leased an apartment in Tiffany Square, a Potter County apartment complex owned by Multivest Real Estate Fund, Ltd., Series VI, d/b/a Tiffany Square, and insured by American Home Assurance Company. The Fireplace Place, a partnership composed of Joe Hastey, C. N. Harrison and Larry Morris, was the subcontractor for the installation of the fireplace in the Hum-phries’s apartment. A 25 October 1975 fire in the fireplace chimney chase damaged the apartment and destroyed personal property of the Humphries.

The Humphries instituted litigation. When this case was positioned for trial, the Humphries and American Home, which had intervened as subrogee and under the name of Multivest to the extent of the $16,030.03 it allegedly had paid Multivest under the policy, were plaintiffs, and the Fireplace Place partnership and the partners individually were defendants. As material to the appeal, plaintiffs’ causes of action for damages were founded on the alleged negligence of Fireplace (a designation to encompass all defendants) in constructing the fireplace chimney flue. Fireplace interposed only a general denial to the causes of action alleged.

As the evidence developed, it was shown that Fireplace had contracted to install the fireplace and chimney in the Humphries’s apartment. The written contract provided that it shall not be assigned or sublet without written consent, and there is no evidence of any written consent to an assignment or that a formal assignment was made. However, upon the questioning of Larry Morris by counsel for American Home, the following developed:

Q. Now, Mr. Morris, you were in charge of that job, weren’t you?
A. My position at that time was to check with the installers_
Q. Let’s get it straight here.
A. No.
Q. Your were not in charge. Who was in charge?
A. The Fireplace Place was in charge of the job.
Q. Who in the Fireplace Place was in charge?
A. Mr. Hastey was over all field operations. I was, at that time, going to the jobs, seeing that the material had been delivered by private carrier.
Q. Haven’t you testified previously by deposition that you were in charge of the job?
A. The way you said it_
Q. All I want to know is who in Fireplace Place was responsible for these being installed correctly now. That’s all I want.
A. The installers.
Q. Who was in charge of them being installed correctly?
A. The installer is paid to go install the unit, and they know_
******
Q. Were you in charge of seeing or had anything to do with seeing that it was installed correctly?
A. Can I say something before I_
Q. Well, were you responsible or not for it then?
A. I would assume, yes.
Q. All right. So Mr. Tingle [an installer] wasn’t responsible, you were.
A. Yes.
Q. All right.
A. Now, there is more to that.
Q. Well, you’ll have a chance. We’re going to get your full story, don’t worry about that.
A. Okay, that’s fine.
******
Q. Well, didn’t the Fireplace Place really sub-contract out and just pay people to install a fixed rate for each fireplace they installed?
A. That is correct, yes, sir.
******
Q. But he [the installer] was paid by the unit, though, and not by the hour_
A. Yes, sir, he was paid_
Q. — not by the day, but paid by the unit.
A. Yes, sir, that’s correct.
******
Q. I’ll read from your deposition on page 19 starting at line 15. Question: “Now, with respect to the actual installation of Tiffany Square Apartment Complex, who was in charge of that? and your answer was, on page 18 (sic), “I would say I was.” You remember saying that back there then, didn’t you?
A. Yes, sir.
Q. Today you had a different version, you had some workman going to be in charge.
A. Now, you asked who was in charge of putting it in. There is quite a bit of difference.
Q. There is difference in putting it in. And the words there were “actual installation.” That’s the words used in your deposition. And you say there’s a difference in putting it in and actual installation?
A. All right.

Later, counsel for Fireplace pursued the matter as follows:

Q. Now continue [reading from Morris’s deposition].
A. “Did you actually travel to Amarillo and supervise the installation of these fireplaces?” And the answer: “As far as direct and physical supervision, I would go by and make sure that our installers had the proper equipment and if they had any problems. I would intervene between the installer and the framer and the general superintendent.”
Q. All right, sir. You answered on Mr. Hamilton’s questions that the installer was paid by the unit.
A. That is correct.
Q. So far as the installer was concerned, who made the determinations as to when he should he (sic) work and how he should work; when his hours should start; when his hours should end? Who made those determinations, please?
A. All right. They were paid by the unit to go and install fireplaces. As to the time, they were told that the job was ready for them to go to work and they went at their own pace and own schedule.

This variant testimony lead Fireplace to object to the court’s charge for the failure to submit an issue inquiring whether an employer-employee relationship existed between Fireplace and the installers. In that connection, Fireplace submitted a requested instruction on the relation and definition of an employee. The trial court overruled the objection and refused the requested instruction, submitting three special issues to the jury.

In response to the issues submitted, the jury found: (1) in constructing the fireplace chimney flue, Fireplace was negligent in three particulars, two of which proximately caused the fire; (2) the damage to the apartment house was $15,775; and (3) the value of the Humphries’s personal property lost in the fire was $8,000. Judgment was rendered decreeing that the Fireplace partners are jointly and severally liable to the Humphries for $8,000 and to American Home for $17,530.94, which is the jury’s award plus $1,755.94 as six percent interest from the date of the fire to the date of judgment, with both recoveries bearing nine percent interest from the date of judgment until paid.

Fireplace urges a reversal of the judgment by nineteen points of error. The first two points are directed to the court’s overruling the objection to the failure to submit the employer-employee issue and the refusal of the requested instruction.

Fireplace’s general denial required the Humphries and American Home to prove every material fact of their causes of action against Fireplace for negligence. Boswell v. Handley, 397 S.W.2d 213, 216 (Tex.1965). One of the facts to be proved was that the negligent acts pleaded were those of Fireplace’s employees — /. e., that the installers were subject to Fireplace’s right to control the details of the work. Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (Tex.1964).

The fact that the installers performed the work contractually undertaken by Fireplace created the presumption that the installers were in the employment of Fireplace, Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416, 418 (1936), and, absent evidence to the contrary, would have compelled the jury to reach that conclusion. Farley, v. M M Cattle Company, 529 S.W.2d 751, 756 (Tex.1975). However, the presumption, which is not evidence, is rebutted by and cannot stand in the face of contrary evidence, Combined American Insurance Company v. Blanton, 163 Tex. 225, 353 S.W.2d 847, 849 (1962), although the facts giving rise to the presumption remain as a part of the evidence. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 359 (Tex.1971).

The testimony that the installers were paid by the unit and had discretion as to hours of labor is indicative, but not conclusive, of a freedom from Fireplace’s control of the details of the installation, Maryland Casualty Co. v. Kent, 3 S.W.2d 414, 415—416 (Tex.Com.App.1928), and is evidence contrary to the presumption. Thus, there is conflicting evidence on the status of the installers, and the court erred in refusing to submit this unresolved essential element of the causes of action. Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952).

Notwithstanding, the Humphries and American Home argue that the court correctly refused to submit the issue because the installers were employees as a matter of law. The argument is predicated on the evidence that Fireplace contracted for the installation and Morris admitted Fireplace was in charge and responsible for the installation. While these are positive evidentiary matters which are inconsistent with Fireplace’s present position, they are not conclusive because of the presence of some explanatory evidence bearing on the independent status of the installers. Even though it be conceded that the great weight of the developed evidence preponderates in favor of an employer-employee relationship between Fireplace and the installers, the court cannot refuse to submit the issue merely because the evidence of independent contractor relationship may be factually insufficient to support that finding. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965).

Accordingly, Fireplace’s first two points are sustained. The other points are not discussed because they pertain to matters which should not arise in the same posture in the event of further proceedings.

The judgment of the trial court is reversed, and the cause is remanded.

      . The original alignments, additions and eliminations of parties to the litigation are detailed and enumerated in Harrison v. Humphries, 567 S.W.2d 884 (Tex.Civ.App.—Amarillo 1978, no writ), where the overruling of the partners’ and the partnership’s pleas of privilege was sustained.


author: O’QUINN, Justice.

text:
    Paul H. HUBBARD, Receiver in Bankruptcy for Jack Riley, d/b/a Webb’s City Drug, Petitioner, v. Jeffrey L. LAGOW, Assignee of Temple National Bank, Respondent.
    No. 12588.
    Court of Civil Appeals of Texas, Austin.
    Jan. 3, 1979.
    Rehearing Denied Jan. 24, 1979.

      Paul H. Hubbard, Sue Stepp, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for appellant.
    James L. Carroll, Gerald M. Brown, Carroll, Carroll & Brown, Temple, for appellee.
   O’QUINN, Justice.

In an earlier phase of this appeal this Court held that Paul H. Hubbard, receiver in bankruptcy for Jack Riley, doing business as Webb’s City Drug, did not have standing to appeal by writ of error from default judgment against Riley. (559 S.W.2d 133) The Supreme Court disagreed and remanded the cause to this Court for consideration of the appeal on its merits. (567 S.W.2d 489)

The Temple National Bank brought this suit in April of 1976 on a promissory note in the principal amount of $22,750.96 against Riley, doing business as Webb’s City Drug, alleging its security interests in all of Riley’s inventory, accounts receivable, business equipment, and fixtures. The bank also sought to restrain Riley from disposing of, wasting or removing any of the secured assets. The bank thereafter assigned all its rights in the note, security agreements, and financing statements previously executed by Riley, as well as its pending cause of action, to Jeffrey L. Lagow, respondent in this appeal.

Riley meanwhile had been served with process, together with copy of the trial court’s restraining order and notice of hearing to show cause why temporary injunction should not issue. After Riley failed to answer or make other appearance, the trial court entered default judgment against Riley late in May of 1976, and ordered all security interests held by Lagow foreclosed and that the secured goods and chattels be delivered to Lagow.

Thereafter Riley filed his petition in bankruptcy, and upon application of Southwestern Drug Corporation, apparently an unsecured creditor, the bankruptcy court appointed Hubbard receiver for the assets of the debtor. Shortly prior to expiration of six months after entry of the judgment in the state court, Hubbard filed application for writ of error seeking revision of the judgment.

Hubbard brings five points of error under which the main contentions are (1) that it was error to enter a delivery order because an order of sale was the proper action under the pleadings and (2) that the judgment for foreclosure is void absent a judicial sale.

Hubbard alleged in his petition for writ of error that “divers and manifold errors have intervened and occurred as is manifest in said record and in the proceedings,” and that he “desires to remove such judgment for revision and correction to the Court of Civil Appeals . . .”

The trial court’s judgment found the note sued upon secured by security agreements giving a secured interest in merchandise inventories and proceeds from the business, its existing and future accounts, as well as all business equipment and fixtures, and ordered the security interest foreclosed and that “such good[s] and chattels] be delivered to” Lagow, assignee of the Temple National Bank, original owner of the note and security contract. The court awarded judgment for the principal sum of the note, attorney’s fees as specified in the note, and for interest accrued to the time of judgment as provided in the note.

In addition, the judgment provided that the total sum of $27,758.07 would “bear interest . . . until paid less any funds received by Plaintiff [Lagow] from the sale of the above good[s] and chattels] delivered to Plaintiff under foreclosure of Plaintiff’s lien set forth . . above and that a money judgment exist for any difference.” (Emphasis added)

The security agreements pleaded by plaintiff bank below provided (1) that the “[b]ank may, in its discretion, before or after default: . . . require debtor to give possession or control of the collateral to bank; . . . take any action debtor is required to take or otherwise necessary to obtain, preserve, and enforce this security interest . . . ” and (2) that “[w]hen an event of default occurs, the entire obligation becomes immediately due and payable at bank’s option without notice to debtor, and bank may proceed to enforce payment of same and exercise any and all of the rights and remedies available to a secured party under the Uniform Commercial Code as well as all other rights and remedies.” (Emphasis added)

The trial court’s judgment conclusively established the default of Riley as debtor to the bank. Although at common law the secured party could be required to make an “election of remedies” upon default, the remedial provisions available under the Texas Business and Commerce Code are much broader that under pre-Code law. 51 Tex.Jur.2d, Part 2, Secured Transactions, sec. 284 (1970).

Specifically, the Code provides, in pertinent part, that the secured party “. may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure . The rights and remedies referred to in this section are cumulative.” (Emphasis added) Tex.Bus. & Comm.Code, sec. 9.501(a) (Supp. 1978).

The Code provision for cumulative remedies constitutes a substantial change from pre-Code law, and since the remedies are cumulative, the secured party is not required to make an election, but may take any permitted action or combination of actions. 51 Tex.Jur.2d, Part 2, Secured Transactions, secs. 288 & 284 (1970).

One legal writer states the change in this language: “It would seem that the purpose of the Code is quite clear, namely, to abolish the doctrine of election of remedies when a security interest is enforced. The secured party is entitled to only one satisfaction, but he may seek it in a number of ways, even though they may presently be considered inconsistent.” Loiseaux: Default Proceedings Under the Texas Uniform Commercial Code, 44 Texas L.Rev. 702, 711 (1966).

Although the Code permits foreclosure by any available judicial procedure and most pre-Code foreclosure law still applies, the Code has abandoned the “election of remedies” doctrine which existed under pre-Code law. 51 Tex.Jur.2d, Part 2, Secured Transactions, sec. 296 (1970). The broader choices of remedies, however, will not allow the secured party to harass the debtor. White & Summers: Uniform Commercial Code, p. 965 (1972).

The trial court sought to award the secured party direct possession of the property securing the debt. Under the Code, upon default, unless otherwise agreed, the secured party has the right to take possession of the collateral, and in taking possession the secured party may proceed without judicial process, if this may be accomplished without causing a breach of the peace, or the secured party may proceed by action. Section 9.503 of the Code (Supp.1978). If the secured party anticipates difficulty, or a breach of the peace, the party may obtain judicial process to aid in effecting possession. Spivack: Secured Transactions, p. 134 (1963). The record in this appeal shows that the secured party obtained orders restraining Riley from moving or disposing of the property.

A recognized legal writer has explained rights of the secured party in this statement:

“If the debtor offers resistance, the secured party will avoid trouble by invoking judicial aid and having the possession made by an officer of the court. Local procedure will dictate the form of the proceeding: replevin or claim and delivery or a full-dress foreclosure suit. Repossession under legal process seems to look forward to a judicial sale, although there is no reason why this must be so. Under section 9-503 or any other security statute which gives the secured party a right to repossession and to have process if he cannot retake the property peacefully, he would seem to be entitled to a court order directing the sheriff to seize the collateral and deliver it to the secured party.” (Emphasis added) Gilmore: Security Interests in Personal Property, vol. 2, p. 1213 (1965).

The Code permits the secured party, after default by the debtor, to sell, lease or otherwise dispose of any or all of the property constituting collateral. Section 9.504(a) Code (Supp.1978). The Code clearly recognizes two basic types of sales which may be made after default. The first is the judicial sale, which is not subject to the Code but is conducted under other rules of law. The other is nonjudicial sale by the secured party which is conducted under the rules of the Code. Sections 9.501(a) & 9.504(c) (Supp.1978); 51 Tex.Jur.2d, Part 2, Secured Transactions, sec. 305 (1970). The nonjudicial sale is freely permitted and may be either public or private, the choice of remedies resting in the secured party. 51 Tex.Jur.2d, Part 2, Secured Transactions, secs. 315 & 305 (1970).

The effect of any disposition by the secured party is made clear by the Code:

“When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of this sub-chapter or of any judicial proceedings (1) in the case of a public sale, if the purchaser has no knowledge of any defects in the sale and if he does not buy in collusion with the secured party, other bidders or the person conducting the sale; or (2) in any other case, if the purchaser acts in good faith.” (Emphasis added) Sec. 9.504(d) of the Code (Supp.1978).

The secured party is required to give “reasonable notification” of the time after which any private sale or other intended disposition is to be made of the collateral. Sec. 9.504 of the Code (Supp.1978). The Comments on Section 9.504 point out that except for the requirement of notification there is no statutory period during which the collateral must be held before disposition. See Comment 5, Sec. 9.504 of the Code (1968). Reasonable notification is not defined, but the Comment observes that “. . . at a minimum it must be sent in such time that persons entitled to receive it will have sufficient time to take appropriate steps to protect their interests by taking part in the sale or other disposition if they so desire.” It is obvious from the judgment that the trial court anticipated that Lagow, having possession, would proceed with sale.

The principal complaint by petitioner is that although plaintiff below in its pleadings sought foreclosure of its security interests “together with an appropriate order of sale,” and prayed expressly for such relief, the trial court, in granting motion for default judgment, ordered “all security interest ... be foreclosed and that such good[s] and chattels] be delivered to Plaintiff . . . ” We are constrained to agree that the judgment of the trial court does not conform to the pleadings.

Rule 301, Texas Rules of Civil Procedure, in its opening clause provides, “The judgment of the court shall conform to the pleadings . . .” Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292, 240 S.W.2d 751, 756 (1951). Generally, the trial court may not grant relief not supported in the pleadings, and a judgment not supported by the pleadings is not warranted. Carreon v. Texas State Department of Welfare, 537 S.W.2d 345, 347 (Tex.Civ.App. San Antonio 1976, no writ). In two instances it has been held that the trial court’s jurisdiction to render judgment is invoked by pleadings, and that part of a judgment the pleadings do not support is void. Ex parte Fleming, 532 S.W.2d 122 (Tex.Civ.App. Dallas 1975, no writ); Douthit v. Anderson, 521 S.W.2d 127,129 (Tex.Civ.App. Dallas 1975, no writ).

Because the judgment in the respects described does not conform to the pleadings, we will reverse the judgment and remand the cause to the trial court for amendment and modification of its judgment.

The record does not disclose whether La-gow took possession of the property upon which the lien was foreclosed and proceeded to conduct the sale which the judgment obviously anticipated. The respondent de-hors the record, however, represents that a sale was conducted, after notice to Riley and other interested parties, and that the property sold for a sum more than $3,700 in excess of the judgment.

The trial court may find it expedient to determine as a matter of fact whether the sale occurred and whether “reasonable notification” of the time of the proposed sale or other disposition was given interested parties under authority of section 9.504 of the Code. The trial court may also desire to determine whether under the facts and circumstances of the sale, if a sale occurred, title passed to the purchaser who took free of Riley’s rights in the property under section 9.504(d) of the Code. Finally, determination may be appropriate to ascertain whether the controversy has become moot. Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632 (1946); City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939).

The judgment of the trial court is reversed, and the cause is remanded with instructions to modify the judgment to conform to the pleadings, and for such other proceedings as may be deemed appropriate.

Reversed and Remanded with Instructions.


author: HUGHES, Justice.

text:
    Wayne F. JENKINS, Individually and d/b/a Wes-Tex Plumbing, Appellants, v. TRUCK INSURANCE EXCHANGE, Appellee.
    No. 18024.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 4, 1979.
    Opinion on Motion for Extension of Time to File Statement of Facts, Dated March 23, 1978.

      Foster & Garrett and Jenks Garrett, Arlington, for appellants.
    Schroeder, Guest & Hoffmeyer and Dan Hoffmeyer, Dallas, for appellee.
   OPINION

HUGHES, Justice.

Wayne F. Jenkins has appealed from a judgment of the trial court which awarded Truck Insurance Exchange $822.20 in a suit on sworn account. Trial was to the court with no findings of fact or conclusions of law requested or given.

We affirm.

By formal admissions in the record it was shown that Jenkins is a plumber who contracted with Exchange for a general liability policy on his employees for a premium of $162.00 on October 30, 1972 for a year ending October 30, 1973, at which time it was renewed for another year. Also an endorsement was made on the policy dated October 30, 1973; received by Jenkins on November 16, 1973; providing for an additional premium of $770.00.

Audits of Jenkins’ payroll records were made by Exchange, as authorized by Jenkins. Jenkins admitted having made no payments on “the balance of $841.80.”

Manufacturers’ and Contractors’ Manual Rates set by the State Board of Insurance for October 1, 1966 through January 1, 1973, December 3, 1969 through January 1, 1973, and June 30,1971 through January 1, 1973, were admitted into evidence.

Jenkins’ point of error no. one urges that plaintiff’s first amended petition and exhibits attached should not have been admitted into evidence because his sworn denial thereto destroyed the probative force of Exchange’s sworn account with the result that the items in the petition and exhibits should no longer be prima facie evidence.

Exchange counters that Jenkins’ affidavit does not state “that each and every item is not just and true, or that some specified item or items are not just and true” as required by Tex.R.Civ.P. 185.

We agree with Exchange that the Jenkins’ sworn denial, while purporting to be a denial of specific items, is in reality a denial of the whole claim. The Jenkins answer, paragraph I states “[t]hat the following items in Plaintiff’s Petition, which is the foundation of Plaintiff’s action, including Exhibit ‘A’, are not just and true.”

We hold such answer did not destroy the probative force of Exchange’s pleading. Oliver Bass Lbr. Co. v. Kay & Herring Butane G. Co., 524 S.W.2d 600 (Tex.Civ.App.—Tyler 1975, no writ).

If Jenkins’ answer could be construed to deny specified items he did not do so in intelligible detail. Solar v. Petersson, 481 S.W.2d 212 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ). Jenkins did not state in his denial what payments, credits or offsets had not been given or how Exchange’s pleading fails to correctly state the account. His general allegations denying that “all just and lawful offsets, . have been credited” and denying “that said Exhibit totally and accurately reflects the status of the account” were, therefore, not sufficient in specificity.

Jenkins admits that plaintiff’s first amended petition and plaintiff’s original petition are basically the same and claims entitlement to having his denial to the latter serve also as a denial to the former. We do not agree they are the same, but it would still be ineffective in destroying the probative effect of Exchange’s pleading.

We deny Jenkins’ point of error no. two claiming the affidavit attached to Exchange’s first amended petition to be a photocopy of the affidavit attached to Exchange’s original petition. The affidavit in protest, like the original petition affidavit, is dated May 19,1975 and appears to be the same identical affidavit attached to Exchange’s original petition but an examination of the two jurats reveals distinct differences in the writing and notary’s signatures.

Jenkins’ only objection to the introduction of the amended pleading in evidence was that “[t]he pleadings are of record in the court and it’s not a matter to be marked as an instrument of evidence. The pleadings will speak for themselves as to what is on file. I think I would object to it on that basis as an instrument of evidence. It certainly is part of the Court’s records.” We hold this objection to be too general and vague. South Texas Electric Cooperative, Inc. v. Ermis, 396 S.W.2d 955 (Tex.Civ.App.—Corpus Christi 1965, no writ).

We hold that there was sufficient evidence in the record to support judgment of the trial court. Jenkins admitted that Exchange sold him a general liability insurance policy and that the payroll audit and employee classification was correct. Amount of exposure was proven as well as the rates applicable, as set by the State Board of Insurance (Tex.Ins.Code Ann. art. 1.04 (1963) and required to be charged. Associated Employers Lloyds v. Dillingham, 262 S.W.2d 544 (Tex.Civ.App.—Fort Worth 1953 writ ref’d).

Since this case was tried by trial court without a jury, with no findings of fact and conclusions of law requested or filed, we must affirm if it can be upheld on any legal theory with support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962). Considering the evidence most favorable to the trial court’s ruling, and disregarding that contradictory, we have to imply that trial court made the necessary fact findings to support its judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). We overrule points of error nos. 3, 5 and 6.

In overruling point of error no. 4, we hold that the trial court had sufficient evidence to find that the witness, LaNelle Williams, was qualified under Tex.Rev.Civ. Stat.Ann. art. 3737e (Supp.1978-79), to testify concerning plaintiffs’ exhibits 4, 5 and 6. She testified that: 1. She did not have a personal knowledge to such exhibits. 2. Plaintiff is a part of Farmers Insurance Group by whom she had been employed 17 years, and for whom she is now an accounts supervisor. 3. She had custody of the permanent books and records of Farmers Insurance Group which were kept in the usual and regular course of business by one with personal knowledge of the act, event or occurrence therein contained, being made at or near the time of transaction recorded in such books.

For the reasons stated, we affirm the judgment of the trial court.

OPINION ON MOTION FOR EXTENSION OF TIME TO FILE STATEMENT OF FACTS

PER CURIAM.

Judgment in this case was signed by the trial court on December 27,1977. The transcript was filed with the clerk of the court of civil appeals within the required sixty-day period. Tex.R.Civ.P. 386. However, no statement of facts was filed with the clerk of this court within the required sixty-day period.

The attorney for appellant has filed a motion to extend the time in which to file the statement of facts. In his motion, the attorney says that upon receiving the transcript from the clerk of the trial court, he learned “that the Statement of Facts was not included with the Transcript as requested.”

We are confronted with the situation where the attorney mistakenly requested his statement of facts from the clerk of the trial court rather than the court reporter. The issue before us is whether we should grant an extension of time for filing the statement of facts under these circumstances.

Tex.R.Civ.P. 21c(l) provides:

“An extension of time may be granted for late filing in a court of civil appeals of a transcript, statement of facts, motion for rehearing, or application to the supreme court for writ of error, if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing as prescribed by the applicable rule or rules.” (Emphasis added.)

The term “reasonably explaining” as used in Tex.R.Civ.P. 21c was construed by our supreme court in Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.1977). Our supreme court wrote:

“We hold, . . . that ‘reasonably explaining’ means any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertance, mistake or mischance.” Id. at 384.

We have concluded that an attorney who has requested the statement of facts from the clerk of the trial court rather than the court reporter has made a “mistake”. Such a mistake is a reasonable explanation within the meaning of Tex.R.Civ.P. 21c so as to authorize the late filing of a statement of facts.

Appellants’ motion for extension of time to file a statement of facts is granted.


author: RAY, Justice.

text:
    P. Stephen FUQUA, Appellant, v. Frank L. CUNNINGHAM et ux., Appellees.
    No. 8621.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 9, 1979.
    Paul W. Wisdom, Jr., Dallas, for appellant.
    Jim L. Hooper, Texarkana, for appellees.
   RAY, Justice.

This is a venue case. Frank L. Cunningham and wife, Ruth H. Cunningham, appel-lees (plaintiffs), brought suit against P. Stephen Fuqua, appellant (defendant), seeking money damages for breach of contract and for injuries done to their land in Red River County. Appellant filed his plea of privilege and appellees filed their controverting affidavit asserting that the suit was properly brought in Red River County. The trial court heard the matter without a jury and entered its order overruling the plea of privilege. Appellant has perfected his appeal and submits one point of error for our consideration.

The judgment of the trial court will be affirmed.

Appellant’s sole point of error is as follows:

“The trial court erred in overruling Appellant’s Plea of Privilege because no exception to exclusive venue in the county of his residence has been plead or proven.”

In August 1975 appellant and appellees entered into an oil, gas and mineral lease covering six tracts of land in Red River County. Attached to the lease was a typewritten addendum which stated in pertinent part the following:

“Other provisions of this lease to the contrary notwithstanding, the following provisions shall apply:
5. Lessee agrees that upon abandonment of any well drilled or re-entered under the terms of this agreement to restore the surface of the land to its original condition in so far as is practicable.

Appellees alleged that appellant had breached his agreement because he had not restored the surface of the land to its original condition insofar as was practicable, but had left the land in a deplorable condition.

We hold that appellees are entitled to maintain venue in Red River County under Subd. 5(a) of Art. 1995, Tex.Rev.Civ.Stat. Ann. (Supp.1978). Such provision is as follows:

“5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The plain language of the oil, gas and mineral lease provides that appellant is obligated to restore the land it had leased in Red River County to its original condition insofar as practicable. The pleadings disclose that suit was brought “upon or by reason of” an obligation under an express written provision of the contract. Under these circumstances, only a single fact had to be shown in order to cast venue in Red River County where the suit was brought. That single fact was that appellant had contracted in writing to perform the alleged obligation in Red River County, the county or some definite place therein being expressly named in the lease. Proof of the existence of a cause of action was not required. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942).

Appellees produced evidence establishing that Appellant Fuqua had contracted in writing to perform an obligation in Red River County. Such was enough to establish venue in the county where suit was brought.

The judgment of the trial court is affirmed.