author: MURRAY, Justice.

text:
    HEMENWAY COMPANY, INC., Appellant, v. SEQUOIA PACIFIC REALCO, Appellee.
    No. 16264.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 25, 1979.
    Rehearing Denied Oct. 31, 1979.

      Joel W. Westbrook, Trueheart, McMillan, Westbrook & Hoffman, Herman Glosser-man, Glosserman & Alter, San Antonio, for appellant.
    Gary C. Johnson, Foreman, Dyess, Prew-ett, Rosenberg & Henderson, Houston, Thomas H. Crofts, Jr., Norman L. Nevins, Groce, Locke & Hebdon, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

This suit was brought by Hemenway Company, Inc., appellant, against Sequoia Pacific Realeo, appellee, for breach of contract. Appellant, an equipment supplier, sued appellee, landlord of a restaurant premises, for breach of appellee’s obligation to require its new tenant, Ollie Otten, to assume a specific equipment lease with appellant.

Appellee built a restaurant building and leased it to Vintage Associates, which was to furnish and operate the restaurant. Appellant leased to Vintage Associates the necessary furniture and equipment to operate the restaurant after appellee had signed a “Landlord’s Waiver and Agreement Re Fixtures” (LWA). Clause five of the LWA provided that if Vintage Associates defaults resulting in a termination of the lease ap-pellee agrees to require any proposed new tenant, as a condition of renting, to assume Vintage’s equipment léase obligation to appellant.

For financial reasons Vintage closed the restaurant and abandoned the building, at which time some of the furniture and equipment covered by the lease was missing due to theft or breakage. Thereafter, ap-pellee leased the premises to Ollie Otten without requiring Otten to assume Vintage’s equipment lease obligation to appellant.

The jury returned findings that (1) the appellee had not breached its contractual obligation; (2) appellant sustained no damages; and (3) appellant waived performance by appellee of any obligation to require its tenant, Ollie Otten, to assume the specific equipment lease. The trial court entered judgment for the appellee and appellant has perfected its appeal to this court.

Appellant attacks the jury findings on both the legal sufficiency and factual sufficiency of the evidence. If the record contained some evidence of probative force in support of the jury verdict then the evidence is legally sufficient. See Flavin v. Flavin, 523 S.W.2d 94, 95 (Tex.Civ.App.— Houston [1st Dist.] 1975, no writ). In considering the factual sufficiency of the evidence we consider and weigh all of the evidence in the case and will set aside the verdict and remand the cause for a new trial only if we conclude that the verdict is so against the great weight and preponderance of the evidence that it is manifestly unjust. In re Estate of King, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951) (per curiam).

Shortly after Vintage Associates closed the restaurant in September of 1976, Ollie Otten contacted, appellee and indicated that he was interested in leasing the restaurant. On October 20,1976, Otten sent a telegram to Sequoia which read: “Agree to your contract proposal for building at 1011 N.E. Loop 410 providing we receive key for building for inspection purposes today and with these agreements as soon as possible.” That same day Sequoia contacted Mr. Ralph E. Tozier, the representative of appellant, and told him that it had a prospective tenant for the building whose name was Otten. Mr. Tozier testified as follows:

Q. Did you make any statement to whoever called you about the situation at all?
A. I think I said I would get in touch with Otten.
Q. Did you get in touch with Mr. Otten?
A. I did.
Q. Did you telephone him that day?
A. Yes.
Q. What was your discussion with Mr. Otten?
A. I told Mr. Otten that I would come down and see him the following day if that was convenient.
Q. And was that convenient?
A. It was.
Q. And did you come to San Antonio on October 21?
A. I did.
Q. And what was the nature of your meeting with Mr. Otten on the 21st of October?
A. On the 21st of October I went to Mr. Otten’s former place of business on San Pedro. He then took me over to the Yesterday’s building. He took out his key and we went inside and took a tour of the building . .
Q. All right. At that time had he- entered into a lease with Sequoia?
A. To the best of my knowledge, no.
Q. What was your discussion concerning the equipment on your dealing with him at that time?
A. My discussion involved us having a lease which I later forwarded to him.
Q. All right. And did you discuss the terms of the lease with him on that occasion?
A. Basically in general terms.
Q. All right. And on that occasion did you tell him that he would have to assume the lease . . . between
Hemenway and Vintage?
A. I did not.
Q. You did not?
A. No.
Q. Did you mention to him that there was a requirement between Hemen-way and Sequoia . . . that if he leased that property that he would have to assume the Vintage-Hemen-way lease?
A. I did not.

During the October 21 meeting Tozier proposed to Otten a lease of the equipment for 24 payments at $2,250 per month, followed by 96 payments of $2,650 per month plus one-half of one per cent of the net sales of the first $500,000.00 annual net sales and one per cent of all. amounts over $500,-000.00. In terms of total dollars this sum would be greater than the amount realized from an assumption of the Vintage lease.

After Tozier’s visit with Otten in San Antonio he returned to Louisiana, drafted the proposed equipment lease, and forwarded it to Otten under cover of letter dated October 28, 1976, with copy to Sequoia.

On November 1, 1976, Sequoia and Otten entered into a written building lease covering the restaurant building. This lease did not include an assumption of the Vintage-Hemenway equipment lease.

Tozier negotiated with Otten until February of 1977 when it became apparent that Otten was not going to lease the equipment. Prior to this time no mention had been made of the LWA to Otten or to appellee. Appellant filed this lawsuit alleging that appellee had converted the restaurant furniture and equipment, and, in the alternative, had breached the LWA. During the trial appellant took a nonsuit on the conversion count and went to the jury on the breach of contract count.

Appellant’s assault on the finding of waiver in favor of appellee is based on the following argument: 1) the contract between appellee and Otten was consummated on October 20, 1976; 2) thus, appellee breached the LWA on that date; 3) there can be no waiver after a breach of contract; 4) therefore, appellant’s conduct subsequent to October 20 cannot be considered as a waiver of its rights under the LWA.

In support of its contention that the contract between appellee and Otten became binding on October 20, appellant relies on Otten’s mailogram of that date to appellee. The mailogram stated that Otten agreed to Sequoia’s proposal with certain conditions. The record, however, does not indicate what the proposal was or whether the conditions were acceptable to Sequoia. Although a contract may be created prior to the execution of a formal document, the intent of the parties to make a binding agreement is the ultimate issue. See Scott v. Ingle Brothers Pacific, Inc., 489 S.W.2d 554, 555-56 (Tex.1972). There is evidence that appellee did not intend for there to be a lease effective on October 20, 1976. At trial there was no dispute about the effective date of the lease agreement. In fact, Tozier testified that Otten was not Sequoia’s tenant between October 20 and November 1. Furthermore, the trial court, without objection, submitted the case on the theory that the LWA was either breached or not breached when the written lease was executed on November 1. We agree with appellee that the only contract shown by the record between appellee and Otten was the written contract of November 1, 1976. Thus, appellant’s assertion that there can be no waiver after breach, even if valid, would not preclude consideration of its conduct between October 20 and November 1, 1976.

We have examined the record in this case and hold that there is sufficient evidence to sustain the jury findings of waiver. Intentional conduct that is inconsistent with the claim of a right constitutes a waiver. United States Fidelity & Guaranty Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971). Appellant’s right to insist on appellee’s performance of its obligations under the LWA came into existence, if at all, on October 20 when appellant learned that Otten was a prospective tenant. The jury could reasonably infer that appellant by its conduct between October 20 and November 1 waived any obligation of appellee to refrain from leasing to Otten without requiring an assumption of the Vintage obligation.

Appellant next asserts that the trial court erred in overruling its obligation to the definition of waiver and in refusing appellant’s requested definition of waiver. The definition of waiver as given by the court read: “The giving up or relinquishment of some known right or such conduct as warrants an inference of the giving up or relinquishment of such right. A right is waived where a person dispenses with the performance of something which he has a right to exact or demand.” The trial court refused appellant’s requested definition of waiver reading as follows:

A waiver, involving as it does that idea of intention, may be expressed or implied. Waiver may be shown by such conduct as will warrant the inference of the relinquishment of a known right; however waiver by implication will be applied only to prevent fraud or inequitable consequences, and, to establish an implied waiver of a legal right, there must be a clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part. Estoppel arises whenever a perpetration of a wrong or fraud has misled another to his injury.

Rule 274 of the Texas Rules of Civil Procedure requires that objections must state clearly and specifically the grounds of the objections and be sufficient to direct the attention of the trial court to the matter of which the party complains. Appellant objected to the court’s definition of waiver because it did not contain the elements of waiver as embodied in its requested definition.

Appellant asserted before the trial court and before this court that the definition of waiver which was refused was taken from the law as expressed in the case of Smith v. Northwest National Bank, 403 S.W.2d 158 (Tex.Civ.App. — Texarkana 1966, writ ref’d n. r. e.). The contention that acts amounting to an estoppel are necessary in order to establish an implied waiver of a legal right is no longer tenable. Subsequent to the Smith case the supreme court held that “[wjaiver need not be . . . based on estoppel.” United States Fidelity & Guaranty Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 358 (Tex.1971) (overruling prior cases). Although the court did not expressly overrule Smith, several opinions which contained similar definitions of waiver were expressly overruled. Appellant’s requested definition of waiver did not embody a correct rule of law; therefore, the trial court properly overruled the objections. See Moore v. Savage, 362 S.W.2d 298, 299 (Tex.1962) (per curiam).

In view of our holding, we think it unnecessary to consider appellant’s other points of error. The judgment of the trial court is affirmed.

      . “Now, comes the Plaintiff after both sides have closed and before the Court has read its charge to the jury and objects to that part of the main body of the Court’s charge which defines the- term waiver for the reason that same is incomplete and not requiring that before the jury can find implied waiver, that the conduct relied upon showed implied waiver must be such that it would apply only to prevent fraud or inequitable consequences and must be clear showing the purpose or acts amounting to estoppel on its part, and we submit to the Court what we believe is a fair statement of the law taken from the Smith case which we cited the other day.”


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    Roger C. CHAPMAN, Appellant, v. MARATHON MANUFACTURING COMPANY, Appellee.
    No. 17470.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 4, 1979.

      Chamberlain, Hrdlicka, White, Johnson & Williams, Larry A. Campagna, Houston, for appellant.
    Vinson & Elkins, Ewing Werlein, Jr., Max Hendrick, III, Riddle, Murphrey, O’Quinn & Cannon, John O’Quinn, Houston, for appellee.
    Before Coleman, C. J., and WALLACE and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is an appeal from an order of temporary injunction issued to preserve the trial court’s prior and exclusive jurisdiction of a suit filed by Marathon Manufacturing Company (“Marathon”) against Delhi Properties, Inc., J. Dale Campbell, Rodney J. Ver-ret, Sam W. Rankin, B. M. Rankin, Jr., and Roger C. Chapman (“defendants”). The trial court granted a temporary injunction preventing the defendants from prosecuting or taking any action in furtherance of the prosecution of a suit which they had filed against Marathon in St. Martin Parish, Louisiana. Roger C. Chapman alone has appealed from the order. Affirmed.

Marathon and the defendants, who were all the shareholders óf IDI, Inc., a Texas corporation, entered into an agreement which provided for the acquisition by Marathon of all the issued and outstanding shares of common stock of IDI in exchange for common stock of Marathon. The stock exchange was to take place at Marathon’s office in Houston, Texas, on September 15, 1978. Prior to that date, Marathon notified the IDI shareholders that it was terminating the agreement for cause.

On February 23,1979, Marathon received notice that the defendants intended to institute suit against Marathon in a Louisiana state court, claiming that the termination of the agreement was wrongful and without cause, and. seeking damages in the amount of $16,000,000. That same day Marathon commenced this action by filing its original petition seeking a declaration that Marathon was entitled to terminate the agreement because of the inaccuracy of certain representations and warranties by the defendants contained in the agreement, the defendants’ inability to comply with certain conditions precedent in the agreement, and occurrence of material adverse conditions not contemplated by the agreement.

Thereafter, the defendants instituted two suits against Marathon. On February 26, 1979, Campbell, Verret and Rankin filed a complaint against Marathon in the United States District Court for the Western District of Louisiana, in which they alleged that Marathon breached the agreement by terminating it without cause and sought damages. On March 1, 1979, the defendants filed a petition against Marathon in the 16th Judicial Court, St. Martin Parish, Louisiana. This petition also alleges that Marathon breached the agreement by terminating it without cause and prays for damages.

On March 12,1979, Marathon filed in this cause an application for an order for a temporary restraining order and, after a proper hearing, a temporary injunction. When the application for a temporary injunction came on for hearing only Robert C. Chapman actively appeared in opposition. The injunction was issued and this appeal resulted.

No findings of fact or conclusions of law have been filed. The evidence clearly demonstrates that the District Court of Harris County, Texas, is an appropriate forum for the resolution of the controversy. The agreement for the exchange of stock was executed by both Marathon and all the defendants in Houston. It provides that the closing of the transaction was to take place in the offices of Marathon in Houston. The company whose shares of stock are the subject of the agreement, IDI, Inc., is a Texas corporation. Marathon is incorporated under the laws of Delaware, but has its principal place of business in Houston. Chapman is a resident of Houston, Rankin is a resident of Dallas, Texas, and the corporate defendant, Delhi Properties, Inc., is incorporated under the laws of the State of Texas and maintains its principal office in Dallas. The other defendants are residents .of Louisiana, but this action arises out of business done by them in Texas. None of the Louisiana defendants has appealed from the in-junctive order. Chapman, the appellant, is a resident of Houston. In a meeting in Houston Marathon notified Chapman of its intention to terminate the agreement for cause. After the agreement was terminated, Chapman negotiated with Armco, Inc., in Houston, and IDI was subsequently acquired by Armco in a transaction closed in Houston. The trial court was entitled to conclude from the evidence presented that Harris County would be the most convenient forum for both parties because of the availability of witnesses and documentary evidence.

In an appeal from a temporary injunction the merits of the underlying cause of action are not presented for appellate review. The appellate court is limited to a determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. Davis v. Huey, 571 S.W.2d 859 (Tex. 1978).

The principles of law involved when a trial court in Texas enjoins the prosecution of a suit in a foreign jurisdiction have been fully discussed by this court in PPG Industries, Inc. v. Continental Oil Company, 492 S.W.2d 297 (Tex.Civ.App.— Houston [1st Dist.] 1973, writ ref. n. r. e.). That case, and the cases cited therein, clearly support the action of the trial court in enjoining the prosecution of a suit subsequently filed involving the same controversy. We decline to depart from the principles of law discussed in PPG Industries to make an exception in this case merely because the plaintiff brought suit in Harris County at the time it did as a result of a notice of intention to file suit served on it by the defendants as authorized by procedural rules of the Louisiana court.

The appellant contends that the trial court erred in finding that it had subject matter jurisdiction in this matter because Marathon’s petition failed to properly plead an action cognizable under the Uniform Declaratory Judgment Act, Article 2524-1, Tex.Rev.Civ.Stat. (1965). Chapman argues that there is no real dispute as to the existence or meaning of the contract, and that the only issues to be resolved are factual disputes. He asserts that under these circumstances a declaratory judgment is not the proper remedy.

The Uniform Declaratory Judgment Act empowers the courts “within their respective jurisdiction” to declare “rights, status, and other legal relations” arising under the contract. A justiciable controversy must exist before the court has jurisdiction to grant any relief, declaratory or otherwise. Sub-Surface Construction Company v. Bryant-Curington, Inc., 533 S.W.2d 452 (Tex.Civ.App. — Austin 1976, writ ref. n. r. e.). The district court lacks the power to render advisory opinions. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960).

To constitute a justiciable controversy for declaratory judgment purposes, there must be a real and substantial, rather than a theoretical, controversy involving a genuine conflict of tangible interests. Sub-Surface Construction Company v. Bryant-Curington, Inc., supra; Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955). Once this is established it must appear that the matter in controversy is within the general jurisdiction of the court. Great American Insurance Company v. Murray, 437 S.W.2d 264 (Tex.1969). The evidence supports the district court’s conclusion that it had subject matter jurisdiction of the declaratory judgment action.

Chapman also maintains that a declaratory judgment is not the proper remedy when the only issue to be resolved is a factual dispute. The issue presented to the trial court in this case is whether Marathon was justified in terminating the contract. To support its action in so doing Marathon has urged that the defendants have failed to comply with conditions precedent contained in the contract and that certain representations and warranties by the defendants found in the agreement are inaccurate. The contentions raise fact issues.

A court having jurisdiction to render a declaratory judgment has power to determine issues of fact, issues of state law, and issues of federal law if such questions be involved in the particular case. United Services Life Ins. Co. v. Delaney, 396 S.W.2d 855 (Tex.1965).

The trial court had jurisdiction of the subject matter of the controversy and also had personal jurisdiction over Roger C. Chapman, the appellant. We are not persuaded that there has been a clear abuse of discretion by the trial court in granting the injunctive relief. The judgment is affirmed.


author: PEDEN, Justice.

text:
    GALVESTON INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Robert R. BOOTHE et ux., Individually and as next friends of their son, David Boothe, Appellees.
    No. 17482.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 4, 1979.
    Rehearing Denied Nov. 1, 1979.

      Ed Schwab, III, Galveston, for appellants.
    Dibrell, Dibrell, Greer & Brown, G. William Rider, Galveston, for appellees.
   PEDEN, Justice.

Galveston Independent School District and its Board of Trustees and others appeal from a judgment setting aside the expulsion of David Boothe (based on alleged possession of marijuana near the school) and enjoining the district from either expelling him from school or penalizing him for his absence from school resulting from the expulsion. The trial court found the expulsion void (1) because the school board’s rule that he was expelled for violating did not fairly apprise him that he could be expelled for possessing marijuana off the school grounds, and (2) because procedural requirements of the rule were not followed in carrying out the expulsion. We affirm.

Before his first class one morning, David Boothe was sitting in an automobile parked on a street adjacent to the school campus. Mr. Johnson, an employee of the district, approached the car and noticed a bag resting on the console. David admitted owning it. He later told his father it contained marijuana and the parties have stipulated that it did. The amount was one-fóur-teenth of an ounce. Because of this incident, the assistant principal sent this letter to David’s parents:

Dear Mr. & Mrs. Boothe:
I must inform you with regret of my recommendation to the Galveston School Board of Trustees, that your son, David Boothe, age 16, be expelled from Ball High School for the second quarter of the 1978-79 school year.
Alleged possession of marijuana necessitates taking this action.
I am obligated to inform you that you may appeal this decision. .

David’s parents appealed the recommended expulsion to the school board, but, after a hearing before the board, David was ordered expelled for one quarter of the 1978-1979 school year.

In their first point of error, the appellants assert that the trial court erred in reaching the conclusion of law that the school board’s expulsion of David was void “because it was not authorized by Section 21.03 of the Texas Education Code for the reasons that the pertinent school rules and regulations were not specific enough to apprise him of the nature of the conduct proscribed and that the Board of Trustees did not properly apply said rules and regulations.”

There is no Sec. 21.03 of the Texas Education Code, and the trial court’s conclusion did not use that number; we presume the appellants meant to refer to Sec. 23.26.

The trial court’s conclusion of law complained about in the first point of error was:

I. NO STATUTORY AUTHORITY TO EXPEL
The expulsion of David Boothe is void and unenforceable because it was done without statutory authority and therefore, violated David Boothe’s right to a free education under Texas Constitution Article IV [VII], as implemented by Texas Education Code Section 21.301.
The only sources of statutory authority for a Board of Trustees to expel a student are Texas Education Code Section 23.26 which authorizes expulsion where the Board of Trustees has promulgated a rule, regulation or policy covering the actor conduct for which- the student is being expelled, and Texas Education Code Section 21.301 which authorizes expulsion for incorrigible conduct.
The expulsion of David Boothe was not authorized by Texas Education Code Section 21.301 because he was not expelled for incorrigible behavior.
The Board of Trustees has authority under Texas Education Code Section 23.26 to expel a student pursuant to a promulgated rule only if the rule fairly apprises the student of the prohibited conduct for which he may be expelled and only if it actually follows the rule it has promulgated in advance of the conduct.
The expulsion of David Boothe was not authorized by Texas Education Code Section 23.26 because the rule for which he was expelled did not fairly apprise him of the act of conduct for which he was subject to expulsion and because the Board of Trustees did not actually follow the promulgated rule on which his expulsion was purportedly based.
The Texas Controlled Substances Act Article 4476-15 and the Federal Drug Abuse Prevention Control Act 21 U.S.C. Section 802 do not classify marijuana as a narcotic drug.

Section 23.26(d) of the Texas Education Code provides that “[t]he trustees may adopt such rules, regulations, and by-laws as they may deem proper.”

Justice C. L. Ray, writing for the court in Texarkana Independent School District v. Lewis, 470 S.W.2d 727, 733 (Tex.Civ.App.1971, no writ), held:

While the Board of Trustees has ample authority to suspend or expel students, “it is without authority to suspend a student for any act or conduct, unless, prior thereto, the Board has promulgated a rule, regulation or policy generally covering such act or conduct for which the student is subject to being suspended, or unless the act or conduct constituted incorrigible conduct in violation of this Article. (Article 2904, Vernon’s Ann. Revised Civil Statutes, now Sec. 21.301, Tex. Education Code). Such rule, regulation or policy may be informal, preferably written but may be verbal, so long as it fairly apprises the student of the type of prohibited conduct for which he may be suspended from school.” Opinion of the Attorney General 1969, No. M-395.

In our case, the Board of Trustees of the Galveston Independent School District has promulgated rules and regulations governing the conduct of students in the Galveston schools and carefully distributed them in a student-parent handbook at the beginning of each school year. This handbook contains rules, policies and regulations relating to expulsion and to the possession of marijuana. The school district’s Policy 5114 and its corresponding regulation provide in pertinent part:

Expulsion — The board will expel pupils from school for misconduct when other means of correction fail to bring about proper conduct. When a school principal (or his designee) finds it necessary to recommend to the board that a student be expelled from school, a letter shall be sent by certified mail informing the parent (guardian) of this expulsion, and will include a report of the measures taken by the administration and by the teachers in trying to bring about proper conduct on the part of the student .
******
b) EXPULSION: All alternatives will be exhausted before any student is recommended for expulsion. Once a principal or his designee finds it necessary to exclude a student from a school campus, he may either:
1) Recommend immediate expulsion. A certified letter will be sent to the parents or guardians and all infractions necessitating the expulsion listed, including a report of measures taken to bring about acceptable behavior on the part of the student. Immediate expulsion will normally be limited to major rule infractions, physical assault, and/or alleged possession of or under the influence of alcohol or drugs. The parents or guardians will be given a copy of the appeal procedures. All students recommended for expulsion must be presented to the Board for their approval.
2) Recommend assignment to Guidance Center .

The “Discipline Section” of the district’s student-parent handbook states: “Expulsion — Administrative action will be taken in cases where students perform asocial acts or are suspected of statutory infractions . ,” while the section entitled “Assignment of Demerits/Penalties” lists the penalty for the offense of being “under the influence and/or possession of drugs” as simply “expulsion.”

Mr. James Watson, principal of Ball High School, testified that in addition to receiving the handbook the students received verbal instructions and admonitions. Each homeroom teacher went over the handbook with the students in his class. Mr. Dillon, in charge of Human Relations and Security, visited each physical education class and spoke to the students on the dangers of drugs, the importance of adhering to the school’s policies, and the problems they would face if they broke the rules. Mr. Watson further admonished the students over the public address system “not to bring marijuana on the' campus.” Mr. Watson testified that “I said the term marijuana specifically on the P.A. system on two occasions that I can recall, because of the dangers involved and because of the seemingly increased usage and possession of it on the campus.”

We agree with the appellees that although the School Board had enacted rules and regulations concerning marijuana possession and expulsion, the district failed to follow them in this case. It appears that the expulsion was not made pursuant to any rule or regulation promulgated by the Board. First, the district’s policies clearly state “[t]he board will expel pupils from school for misconduct when other means of correction fail to bring about proper conduct.” No alternate means of correction were attempted in David’s case. Second, the letter sent to David’s parents failed to comply with the provision in regulation 5114 that the letter informing the parent (guardian) of an expulsion “will include a report of the measures taken by the administration and by the teachers in trying to bring about proper conduct on the part of the student . . . ” The word “will” is a word of certainty while the word “may” is one of speculation and uncertainty. McElroy v. Luster, 254 S.W.2d 893, 896 (Tex.Civ.App.1953, writ ref.); Airline Motor Coaches v. Guidry, 241 S.W.2d 203, 209 (Tex.Civ.App.1950, writ ref. n. r. e.). The letter received by David’s parents did not “include a report of the measures taken in trying to bring about proper conduct on the part” of David. By utilizing the word “will” in its guideline, the school district is required to include such a report.

Further, David’s possession of marijuana was not on the school proper but was in a car parked on an adjacent street. David was verbally warned “not to bring marijuana on the campus,” but it has not been shown that possessing marijuana in a car parked on an ádjacent street is “on campus.” The administrative regulations indicate that the place where possession of marijuana is prohibited is “in our schools.” Administrative regulation 5114, which was passed pursuant to School Board policy and approved by the Board, contains this provision:

Suspension and Expulsion:
1) Administrative action will be taken in cases where students perform asocial acts or are suspected of statutory infractions. Examples of behavior that will not be tolerated in our schools are: (emphasis added)
a) . . .
b) . . .
c) *
d) Alleged possession of or under the influence of alcohol or drugs;
e) . . .
f) . . .

Mr. Watson testified:

our campus actually takes in maybe eight or nine blocks. There is a passage of kids to and from north to south over private property as well as school property. Our campus is considered to be quite large. There is no stepping off of a curb in our opinion and onto property that is not that of G.I.S.D. We have signs posted that anyone within five hundred feet of the campus, that that is considered campus in our opinion, and we have used this term for years.

The student handbook in the section devoted to security rules contains two definitions of “school property” but they appear to apply to other charges. “School property,” when dealing with loitering shall “include the grounds of any public school and any grounds or buildings used for school sponsored activities or assemblies.” When the offense is disruption of class, the area covered is expanded to include public property within 500 feet of school property. “Public property” is defined as “any street, highway, alley, public park or sidewalk.”

There is no evidence that David was acting disruptively; consequently, the 500 foot extension to “school property” would not apply. David did not bring marijuana “on the campus” as defined by the student handbook, and the School District did not by signs (described by Mr. Watson) alone fairly apprise the students that they could be expelled for possession of marijuana off the campus. In Texarkana Independent School District v. Lewis, supra, the court, citing Jones v. State Board of Education, 279 F.Supp. 190, 200 (M.D.Tenn.1968) and Scoggin v. Lincoln University, 291 F.Supp. 161, 172 (W.D.Mo.1968), held at page 737 that “[tjhere can be no discipline imposed except on the basis of substantial evidence of a violation of one or more specific rules or policies of the school.”

In their second point of error the appellants maintain that the trial court erred in concluding that David’s expulsion was void and unenforceable because it was based on a vague and indefinite rule which contravened his right to due process under the United States Constitution.

They argue that the “vagueness doctrine” is applied only to criminal statutes and to cases involving infringement on basic constitutional rights and is not applicable to student disciplinary matters.

We disagree and are in accord with the holding already cited in Texarkana Independent School District v. Lewis, supra, that before a student can be punished by expulsion for violation of a school rule, regulation, or policy, such rule, regulation, or policy must fairly apprise him of the type of prohibited conduct for which he may be expelled.

David was presented with a number of rules and regulations, but they did not fairly notify him that expulsion could result from his possessing marijuana on a street adjacent to the campus. It was made clear that the students were not to bring marijuana “on campus” but not that “on campus” means within 500 feet of the school grounds, regardless of the offense involved.

In point of error 3, the appellants contend that the trial court erred in concluding that David’s expulsion was based on an unconstitutionally unreasonable rule. Our rulings on the first two points of error make it unnecessary for us to consider this point.

The appellants’ fifth point is that enjoining the district from expelling David constituted an unlawful interference with the board’s discretionary powers. It is not the role of the court to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Wood v. Strickland, 420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975). However, we agree with the trial court’s conclusion in our case that the school board’s action was without the district’s grant of discretionary power, and we cannot say the trial court’s injunction was improper.

The appellants assert in point of error 4 that the trial court erred in making a conclusion of law that David’s expulsion was void and unenforceable because it was not preceded by an adequate hearing as required by due process of law. After making that conclusion of law the trial court stated:

The Fourteenth Amendment to the Constitution requires the expulsion of a student be preceded by a hearing at which there is an independent consideration of the student’s prior conduct and other mitigating circumstances.

The transcript of David’s hearing before the school board was admitted in evidence in the trial court “for the limited purposes of proving that there was a hearing, proving the result and establishing a record as to the hearing.” Due process requires that at the very minimum a student facing suspension must be given some type of notice and afforded some kind of hearing. When the suspension is to exceed ten days, formal procedures may be required. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

We sustain this point. Regardless of whether procedural due process requires that the expulsion of a student be preceded by a hearing at which there is an independent consideration of his prior conduct and other mitigating circumstances, we find that at the hearing before the School Board, David, who was represented by counsel, was not denied an opportunity to present evidence of his prior conduct or of any mitigating circumstances. In fact, some evidence was offered as to those aspects of the case.

The appellants’ sixth point of error is that there was no evidence or, alternatively, insufficient evidence to support the trial court’s granting a permanent injunction. The appellants maintain that some 34 findings of fact are without support in the record. We consider that only four findings of fact (Nos. 10,11,16 and 43) were without sufficient support, but this is of no consequence, for none of these four findings bears on the issue of the school district’s failure to follow its own rule or on the vagueness of the school's regulations.

In their final point, the appellants complain that the trial court’s judgment grants relief not prayed for, is more restrictive and comprehensive than justified by the appellees’ pleadings and proof, and fails to describe the acts restrained with sufficient particularity. We find no merit in this contention. The appellees’ trial pleadings are quite detailed and support the relief granted. Further, the appellants have not complied with the briefing requirements of Rule 418, paragraph (e), T.R.C.P. We overrule this point.

The judgment of the trial court is affirmed.

EVANS and WARREN, JJ., also sitting.


author: WALLACE, Justice.

text:
    E. R. STEPHENSEN et ux., Appellants, v. Howard S. PERRY et al., Appellees.
    No. 17497.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 4, 1979.
    Rehearing Denied Oct. 25, 1979.

      William R. Vance and John Delaney, Bryan, for appellants.
    John M. Barron, Jr. and Roland M. Sear-cy, Jr., Bryan, for appellees. •
    Before PEDEN and WARREN, JJ.
   WALLACE, Justice.

This is a suit to enforce deed restrictions on two residential lots owned by appellants. The trial court granted a mandatory injunction directing appellants to remove motor vehicles from one lot and to mow grass and weeds on the other one. The issues are: (1) the admissibility of records of the county clerk in the absence of prior filing and statutory notice to appellants, and (2) the sufficiency of the evidence to support findings of irreparable injury and lack of an adequate remedy at law.

The county clerk of Brazos County, the situs of the property, was called as a witness and brought with him his permanent records. When that portion of the county clerk’s records containing the restrictive covenants was offered, appellants objected on the grounds of non-compliance with Article 3726, Tex.Rev.Civ.Stat.Ann. Appellees concede that copies of the restrictions were not filed with the papers in this suit and no prior notice was given as required by the statute. Appellees’ original petition, stated:

Heretofore during the 1960’s the plaintiffs purchased of and from J. C. Culpep-per or his assigns lots included and protected by restrictive covenants of record in Culpepper Manor, Third Addition, to the City of Bryan County, Texas, a plat of which is of record and reference being hereby made to same for all purposes and to said plat and all restrictive covenants written therein ... . ”

This is not sufficient to comply with the prior filing or notice requirements of Article 3726. Appellees contend that the records of the county clerk were admissible under Article 3731a. That article refers to instrument, reports, etc. made by an officer of this state or of any governmental subdivision thereof. It is true that Brazos County is a subdivision of this state and the county clerk is an officer of that county. However, the records introduced by the ap-pellees were not made by the county clerk. From the face of the record it is apparent they were made by private individuals, the grantors in the deed, and merely recorded by the county clerk. The cases cited by appellees interpreting Article 3731a are all distinguishable from the present case in that they pertain to records made by state officials or officials of subdivisions of the state. Texas Industrial Trust v. Lusk, 312 S.W.2d 324 (Tex.Civ.App. — San Antonio, 1958, writ ref’d), pertained to records of the State Securities Commission. The deputy commissioner who testified in that case had the original records with him and the objection to their admission was that they should not have been removed from Travis County to the county of suit. That case has no application here. In Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654 (1950), the court considered the admission of the records of the Department of Public Safety, which records were prepared by the department and are thus distinguishable from the records in this case. In Wickware v. Sessions, 538 S.W.2d 466 (Tex.Civ.App. — Tyler 1976, writ ref’d n. r. e.) the records involved were those of a court in California and clearly covered by Article 3731a § 2, Tex. Rev. Ci v. Stat. Ann.

Article 3731a is the codification of the “Official Written Statements” exception to the hearsay rule, Wickware, supra, and applies to records prepared by public officials in the performance of their official duties. 2 McCormick & Ray, Evidence, § 1293 (1956). The deed restrictions in this case were prepared by private parties and are not covered by Article 3731a. Buzzard v. Mapco Inc., 499 S.W.2d 352 (Tex.Civ.App. —Amarillo 1973, writ ref’d n. r. e.). Appellees offered no evidence to prove by common-law methods execution of the restrictions. Since execution was not proven under common-law and there was no compliance with Article 3726, the restrictions were not admissible. Appellants’ points of error 1 and 2 are sustained. Since this error requires a reversal of the case, the points of error concerning the sufficiency of the evidence to support findings of no irreparable injury and no lack of adequate remedy at law will not be discussed.

The order of the trial court is reversed and the temporary mandatory injunction is dissolved.


author: EVANS, Justice. EVANS, Justice.

text:
    Harry DAWSON et al., Appellants, v. FIRST CONTINENTAL REAL ESTATE INVESTMENT TRUST d/b/a First Continental Mortgage, Appellee.
    No. 17549.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 4, 1979.
    Motion for Extension of Time to File Motion for Rehearing Denied Nov. 29, 1979.

      Don E. Kilpatrick, Houston, for appellants.
    Bracewell & Patterson, J. Woodfin Jones, Houston, for appellee.
   EVANS, Justice.

The appellee has moved to dismiss the appeal, asserting that the appellants’ cost bond was not timely filed. The appellants oppose the motion to dismiss contending that their bond for costs was filed within thirty days after rendition of the second of two orders signed by the trial court overruling their motion for new trial.

The appellants’ motion for new trial was filed May 3, 1979, and attached to the motion was a form to be completed by the trial court, either granting or denying the motion for new trial. On May 29, 1979, the trial judge signed and dated this form of order, indicating that the motion for new trial had been denied. This order was never entered in the minutes of the court.

Subsequent to the signing of this order, the trial judge on June 15, 1979, signed a second order, which is more formal in language and content than the first order, but which did not purport to have any effect other than the denial of the appellants’ motion for new trial.

On June 29, 1979, one day following the expiration of thirty days after the signing of the first order, but within thirty days of the signing of the second order, the appellants filed their bond for costs on appeal.

Attached to the appellants’ opposition to the appellee’s motion to dismiss is an affidavit of appellants’ attorney in which he states that he was informed by the clerk, of the trial court that the trial judge had refused to sign the formal order attached to his motion for new trial because of the several blank lines contained therein and that he was asked to prepare an additional order and submit it to the court in correct form. The attorney states in this affidavit that subsequent to the hearing on the motion for new trial, he inquired on three occasions, twice by telephone and once in person, as to the progress of the signing of the order overruling the motion for new trial and that on June 15, 1979 he was informed by the court clerk that the order overruling the motion for new trial had been signed.

The requirement that the appeal bond be filed within thirty days of the date of rendition of judgment is mandatory and jurisdictional, and the time prescribed cannot be dispensed with or enlarged by the court for any reason. Glidden Co. v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956). This court has no discretion to excuse a delay, even of one day, in the filing of an appeal bond. Glidden Co. v. Aetna Casualty and Surety Co., supra; Washington v. Golden State Mutual Life Insurance Company, 405 S.W.2d 856, 857 (Tex.Civ.App.-Houston [1st Dist.] writ ref. per curiam 408 S.W.2d 227, 1966).

The order signed by the court on May 29, 1979, is clear in its import and effectively overrules the motion for new trial. Thus, the fact that it is informal does not lessen its effectiveness as the rendition of an order from which the time for filing the bond for costs of appeal must be computed. Spoonmore v. Board of Polygraph Examiners, 454 S.W.2d 588, 591 (Tex.Civ. App.-Tyler 1976, writ ref. n. r. e.); International Security Life Ins. Co. v. Spray, 468 S.W.2d 347 (Tex.1971). Neither is the order dated May 29, 1979, rendered ineffective because it was not entered on the court’s minutes. In determining a time period for purposes of appeal, the date of rendition of the judgment or order shall be deemed to be the date upon which the written draft was signed by the . trial judge as stated therein. Rule 306A, Texas Rules of Civil Procedure. The entry of a judgment in the minutes of the court is merely a ministerial act and has no effect on the finality of the judgment rendered. Coleman v. Zapp, 105 Tex. 491, 494, 151 S.W. 1040, 1041 (1912); Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818, 819 (1945); Morris v. State, 539 S.W.2d 515 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ).

The second order signed by the court on June 15, 1979, was, therefore, of no effect and cannot be considered as extending the time period for purposes of appeal. It does not purport to have been entered in lieu of the original order and nowhere does it recite a purpose to vacate the original order or to correct any alleged error therein. Ellilson v. Panhandle and Santa Fe Railway Co., 306 S.W.2d 909 (Tex.Civ.App.-Amarillo 1957, no writ).

Under the circumstances shown on the face of the record, the time period for filing the bond for costs of appeal was not enlarged by the signing and entering of the order of June 15,1979. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976). The trial court was not empowered to enlarge the period for perfecting the appeal .by merely entering an order affirming its former judgment. Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973).

It is generally true that lawyers and the parties in a cause are charged with notice of all orders that are rendered affecting the case. Mayad v. Rizk, 554 S.W.2d 835, 839 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref. n. r. e.); Pentijis v. Texas Electric Service Co., 470 S.W.2d 387, 390 (Tex.Civ.App.-Ft. Worth 1971, writ ref. n. r. e.). However, where a party or his attorney fails to take some timely action because of misinformation provided by the official clerk of the court, equitable relief may be appropriate. Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964); Kelly-Moore Paint Co. v. Northeast Nat'l Bank, 426 S.W.2d 591 (Tex.Civ.App.-Ft. Worth 1968, no writ); Vogel v. Vogel, 405 S.W.2d 87 (Tex.Civ. App.-San Antonio 1966, no writ). Therefore, this court’s action in dismissing the appeal is without prejudice to the appellants’ right to seek further relief in the trial court by means of an equitable bill of review.

The appeal is dismissed for want of jurisdiction.

PEDEN and WARREN, JJ., sitting.

On Motion for Extension of Time for Filing Motion for Rehearing

EVANS, Justice.

The appellant has requested an extension of the timé for filing his motion for rehearing.

The appellant’s motion for rehearing was due to be filed in this court on October 19, 1979. On October 30, 1979, eleven days after the due date for filing, appellant filed his request to extend the time for filing, stating that he had been assigned to try a jury case on October 7, 1979 and that the hearings in regard to the motions to enter judgment in that case, as well as his general law business on day-to-day matters, had occupied his time and prevented his timely filing of the motion for rehearing. The request for an extension of time to file is opposed by the appellee.

Rule 21c, Texas Rules of Civil Procedure provides in pertinent part as follows:

“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.”

The appellant’s request to extend the time for filing his motion for rehearing does not set forth “any plausable statement of circumstances” showing that his failure to file within the requisite time period was not deliberate or intentional, but was, instead, the result of some inadvertence, mistake or mischance. Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977); Brice v. Brice, 581 S.W.2d 699 (Tex.Civ.App.-Dallas 1979, no writ); Shepard v. Shepard, 572 S.W.2d 86 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref’d n. r. e.). The appellant has not presented this court with his motion for rehearing, and he does not suggest to this court any specific time period within which he proposes to file a motion for rehearing. The allegations contained in the request for extension of time to file do not reasonably explain the need for the requested extension within the meaning of Rule 21c, Texas Rules of Civil Procedure.

The appellant’s request for an extension of time to file his motion for rehearing is denied.


author: WARREN, Justice.

text:
    COMMUNITY PUBLIC SERVICE COMPANY, Appellant, v. L. J. ANDREWS, Appellee.
    No. 17471.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 11, 1979.
    Rehearing Denied Nov. 15, 1979.

      Leland B. Kee, Angleton, for appellant.
    Richard L. McElya, Angleton, for appel-lee.
    Before EVANS, WALLACE and WARREN, JJ.
   WARREN, Justice.

Community Public Service Co. appeals from a judgment in an eminent domain case, alleging the evidence did not support the jury’s findings, improper jury argument, the admission of improper evidence, and improper order of opening and closing arguments.

Appellant, under its power of eminent domain, sued to acquire an easement of 2.34 acres, approximately 70 feet wide, across the center of a 25.37 acre tract belonging to Appellee. Appellant condemned the easement for the purpose of constructing a high voltage transmission line.

In dispute was the “before and after value” of the land impressed with the easement and the damage, if any, to the remaining 23.03 acres caused by the taking of the easement.

The jury in answering the four special issues found:

(1) that the value of the 2.34 acre tract before the taking was $9009.00,
(2) that the value of the 2.34 acre tract after the taking was $234.00,
(3) that the value of the 23.03 acre remainder before the taking was $125,-295.00, and
(4) that the value of the 23.03 acre remainder after the taking was $97,-205.00.

Appellant contends that there was no evidence to support the jury’s findings to issues (2) and (4) or, alternatively, that the answers were against the great weight and preponderance of the evidence. After reviewing the record, we are of the opinion that the answers to these issues were supported by competent evidence and were not against the great weight and preponderance of the evidence.

Three witnesses testified, as to the value of the 2.34 acre tract after the easement was taken. Mr. Andrews testified it was worth $10.00. Mr. Edmonds, Appellant’s expert, testified it was worth $2923.00 and Mr. Reed, Appellee’s expert, testified it was worth $604.00. All witnesses agreed that the highest and best use of the land was for residential development. At the time of trial, the only improvements on the easement tract were a small man-made pond and a water well used for agricultural purposes. There was testimony that the transmission lines were unsightly, that they could be dangerous, that they destroyed the use of these improvements and that no permanent structure could be maintained on the subject tract. Mr. Reed further testified that the easement tract could be considered a liability to the landowner because of its limited use and the liability for taxes. Mr. Andrews, the landowner, testified that he was familiar with market values, that he was familiar with the land and that he knew the rights acquired by the utility company. Under these circumstances he was competent to testify as to the before and after market values of the easement tract. Trinity River Authority of Texas v. E. G. Barrett, 497 S.W.2d 91 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ); Gulf States Utilities Company v. Austin, 439 S.W.2d 411 (Tex.Civ.App.— Houston [14th Dist.] 1969, writ ref’d n. r. e.).

It is settled that a jury may ignore opinion evidence and draw its own conclusions from other evidence as to the ultimate issue of market value. West v. Houston Lighting & Power Co., 483 S.W.2d 352 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ). The answer to Special Issue 2 was amply supported by the evidence; it was within the range of the opinion evidence.

Appellant argues that because the answer to Special Issue 4 was lower than the opinion of any expert witness it was not supported by the evidence. The same three witnesses testified as to the value of the remaining 23.03 acre tract.

The 70 foot easement enters Appellee’s property at its northwest corner, runs 318.2 feet in an easterly direction along the northern boundary line, turns south and runs 958.58 feet to the southern boundary, running a course which divides the 20 acre rectangular tract approximately in half. There was evidence that the highest and best use of the property was for a residential subdivision, that the easement divided the property and ran through the best drained portion, that the transmission lines were unsightly and could be dangerous, rendering the property less valuable for use as a subdivision. Mr. Edmonds, Appellant’s expert, testified that the remainder tract was depreciated 10% after the taking, that the improvements were not damaged by the easement and that the after-taking value of the land including improvements was $111,-515. Edmond’s testimony is internally inconsistent because the sum of the parts does not equal the whole. Additionally, Ed-monds in formulating his opinion included the values of four houses, three of which were approximately 1,000 square feet each and the other approximately 1,250 square feet in size. Edmonds valued these houses at $10.00 per square foot and, later in his testimony, at $15.00 per square foot. Ap-pellee testified that only two of these four houses were on his land. Mr. Reed, Appel-lee’s witness, valued the improvements at $32,850.00. Edmonds’ testimony pertaining to the value of the improvements is inconsistent and ambiguous. If one deducted the value of two of the smaller houses at $10.00 per square foot, then the value after the taking, otherwise based upon his testimony, would be $91,575.00. If the larger house and a smaller house are deducted at the higher $15.00 per square foot, then the value after-taking, otherwise based upon his testimony, would be $77,825.00. Both of these after-taking valuations are below the value found by the jury. Moreover, if one added Edmonds’ land valuation to Reed’s improvement valuation the sum would be $84,667.50 which is also below the value found by the jury.

A jury is not bound by the opinion evidence of experts and can form its own opinion from other evidence and by utilizing its own experience and common knowledge. Simmonds v. St. Louis, B & M Ry. Co., 127 Tex. 23, 91 S.W.2d 332 (1936); West v. Houston Lighting & Power Company, 483 S.W.2d 352 (Tex.Civ.App. — Houston [1st Dist.] no writ); City of Houston v. Ready, 370 S.W.2d 210 (Tex.Civ.App. — Houston 1963, no writ); Rayburn, M., Texas Law of Condemnation § 219 at 575. It is also well established that the jury can reach its own conclusion by blending all the evidence admitted before it and that the jury is not compelled to credit all the testimony of any witness or to reject it all. Texas Elec. Service Co. v. Wheeler, 550 S.W.2d 297 (Tex.Civ.App. — Fort Worth 1976, writ ref’d. n. r. e.); Southwestern Electric Power Co. v. Presswood, 420 S.W.2d 182 (Tex.Civ.App. —Tyler 1967, no writ); McConnico v. Texas Power & Light Co., 335 S.W.2d 397 (Tex.Civ.App. — Beaumont 1960, writ ref’d. n. r. e.). The jury’s finding to Special Issue 4 was supported by sufficient evidence, and it is not against the great weight and preponderance of the evidence.

Appellant contends that the trial court erred in allowing Appellee to open and close argument because the burden of proof on the entire case was on it. Appellant’s contention is based on T.R.C.P. 266 which gives a plaintiff the right to open and close unless the defendant, before the trial commences, admits that plaintiff is entitled to recover. Although there were other issues involved in the trial, they were not submitted to the jury. The identical contention was urged and rejected in City of Teague v. Stiles, 263 S.W.2d 623 (Tex.Civ.App. — Waco 1953, writ ref’d n. r. e.). The court in that case held that T.R.C.P. 266 should defer to T.R.C.P. 269(a) because the defendant had the burden of proof on all issues submitted to the jury. This point of error is overruled.

Appellant asserts that testimony that the property involved was a homestead violated the trial court’s order in limine prohibiting evidence of sentimental value.

The purpose of a motion in limine is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of a jury. To be reversible error the questions asked or the evidence offered must be so prejudicial that the mere asking or tendering would require a reversal. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963).

When asked by his counsel why this property was worth only $2500 per acre after the taking, Appellee responded, “Well, I got my homestead. I expect to live there the rest of my life,” and that Appellant had cut down pecan trees that he grafted in 1952. The testimony regarding the cutting of the trees was not improper. Although the evidence bordered on the sentimental, it probably did not cause an improper judgment. Counsel for Appellant also introduced tax renditions showing the property to be Appellee’s homestead. Appellant did not object or ask for an instruction from the court when Appellee testified to these matters. Any objection to this testimony was waived. Harlow v. Swift and Company, 491 S.W.2d 472 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.).

Appellant next claims error because of improper jury argument. In final argument counsel for Appellee, referring to tax rendition forms signed by Appellee, said “and possibly the worse thing of all is this thing. That’s a clear violation of evidentia-ry rules for this thing to be in evidence to the way it came in.” Before Appellant objected the court stated to counsel and the jury that the exhibits were properly in evidence. Counsel for Appellee stated that the tax renditions were the opinion of the tax assessor-collector, to which an objection was sustained. Thereafter, Appellee’s counsel continued telling the jury that “anybody who pays taxes knows that the county assesses at a certain percentage and at so much per hundred on that percentage. I’m a lawyer. I don’t know what they mean. I know what they prove. Nothing. Except that Kee is willing to do almost anything to win this lawsuit.” The objection was sustained. The statement that “Kee is willing to do almost anything to win this lawsuit” was personal criticism upon other counsel prohibited by T.R.C.P. 269(c) and improper.

The other argument should not have been necessary except that our law permits the introduction of tax renditions in condemnation cases as a declaration against interest. West v. Houston Lighting & Power Co., supra.

In almost every case of this type the record is marred by the introduction of this evidence which is of no value to the jury. In Ft. Worth D. S. P. Ry. Co. v. Gilmore, 13 S.W.2d 416 (Tex.Civ.App.—Amarillo 1928, no writ), Mr. Justice Randolph after holding that evidence relative to value of land rendered was admissible as a declaration against interest said, “while under the custom of rendition for far less than the value of property, this evidence has little if any, probative force, yet our courts have held it admissible.” In 51 years since that opinion the custom has not changed nor has the probative force of this type of evidence. In 22 Tex.Jur.2d Eminent Domain § 295 at 416 (1961) the following statement is made:

“. . the evidence is always open to the comment that the taxation figures have little probative force by reason of the notorious custom of rendering property for less than it is worth.”

Although we believe that some of the statements were improper, we do not conclude, after reviewing the entire record, that these comments probably caused the rendition of an improper verdict.

Appellant contends that counsel for Appellee implored the jury to return a verdict based on “who is being fair” rather than on the evidence. In his argument, counsel for Appellant told the jury he was certain they would return a fair verdict and “It is necessary for us to be here unless we just are going to open up and pay whatever to acquire these easements without regard to what reason is. And that’s what I want to talk to you about is reason. Fairness and justice.” In rebuttal counsel for the Appel-lee said, “You are justice. Period. And just as a little stinger, I say figure out who is being fair and return your verdict accordingly.” No objection to this argument was made. Whether the Appellee’s comment was provoked or invited was a question for the trial court. Having failed to object, the Appellant has waived this objection. See 3 McDonald Texas Civil Practice § 13.14 (1971 rev. ed.).

Finally, it must be determined, after reviewing the entire record, whether the cumulative effect of all these comments probably caused the rendition of an improper verdict. The arguments of counsel were not objectionable, except as stated above. After reviewing the record we do not find that the incidents excepted to probably caused the rendition of an improper judgment.

Appellee’s final point of error regarding remittitur has been considered and is overruled.

The Judgment is affirmed.

      . Edmonds testified that the before taking value of the land, exclusive of improvements was $2,500.00 per acre or $57,575.00 for the remaining tract. A 10% depreciation reduces the value to $2,250.00 per acre or $51,817.50 for the remaining tract. Earlier he testified that the value of the improvements was $57,755.00. The sum of $51,817.50 and $57,755.00 does not equal $111,575.00.


text:
    Ex parte Leon G. WOOD, Jr.
    No. 17519.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 11, 1979.
    Albert S. Low, Jr., Houston, for appellant.
    Nell H. Holloway, Houston, for appellee.
   WARREN, Justice.

This is an original habeas corpus proceeding in which relator alleges, among other things, that he is being illegally confined because (1) the support order on which the court based its contempt order is void, and (2) the court refused to allow him to present his defense to the Motion for Contempt.

On these two grounds, we grant the writ and order that relator be discharged from custody. .

Dona Dale Wood, the wife of relator, filed suit for divorce on May 25, 1978. On May 30th, she filed an unverified motion for substituted service under Rule 106(e), Tex. R.Civ.Proc., alleging that her husband was on leave from his job in Saudi Arabia and would be in Houston only for a short period of time; thus it was necessary to serve him immediately. The trial court entered an order authorizing service by any disinterested adult, but did not name the person authorized to effect such service. On May 31, Kenneth Gray served a copy of the petition and notice to show cause on relator. The Show Cause hearing was set for July 10, 1978. Relator did not appear at the hearing and the court entered a temporary order requiring, among other things, that relator pay $2,000 per month temporary alimony.

On July 27, 1978, relator filed an answer, a motion to set aside the temporary orders and other requests for temporary relief. The allegation that service was defective was not brought to the attention of the trial court until relator filed his response to Petitioner’s Motion for Contempt on May 22, 1979. Prior to the contempt hearing, this contention was overruled and relator was found to be in contempt of the temporary order of July 17, 1978.

Rule 106, Tex.R.Civ.Proc., provides in part:

Where it is impractical to secure service, as authorized by (a) or (b) as above directed, the court, upon motion, may authorize service
******
(e) by any disinterested adult named by the court in its order .

The order did not name a disinterested adult.

Texas courts have insisted on strict compliance with the rules in order to obtain in personam jurisdiction by substituted service. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App. — Dallas 1962, writ ref’d n. r. e.).

If a state statute or rule of court prescribes the method by which notice must be given in a particular instance and it prescribes the form of notice that must be given in such instance, then the method prescribed by the statute or rule for giving notice is generally held to be exclusive and the form prescribed must be followed with reasonable strictness.- This is true even though it is proved or stipulated that actual notice was received. Scucchi v. Woodruff, 503 S.W.2d 356 (Tex.Civ.App. — Ft. Worth 1973, no writ).

Rule 106(e) specifically provides that the service is to be effected by any disinterested adult named by the court in its order. A failure to name the disinterested adult is fatal to the acquisition of in personam jurisdiction under this subsection of Rule 106.

After petitioner (Dona Wood) in the trial court rested, the court found relator herein to be in contempt and ordered the bailiff to take him into custody. In response to relator’s objection that he was not being allowed to present his defense, the court instructed counsel to take the court reporter out of the courtroom and make a bill of exceptions. There is nothing in the record to indicate that this was done.

Due process as guaranteed by United States Constitution, amendment Five and by Texas Constitution, Art. 1, Section 19, requires that one charged with contempt be accorded the opportunity not only to establish a complete defense, but to offer evidence and argument in extenuation of his offense and in mitigation of the penalty. Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928). In Ex Parte Holden, 144 Tex. 295, 190 S.W.2d 485 (1945), a case similar to ours, the Supreme Court released relator because he was not allowed to give testimony in defense of the contempt charge and in mitigation of the punishment.

The other contentions asserted by relator have been considered and are overruled.

The relator is discharged.

PEDEN and EVANS, JJ., also sitting.


text:
    CITIZENS BUILDING INC., et al., Appellants, v. E. L. AZIOS, Appellee.
    No. 17490.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 11, 1979.

      Newton B. Schwartz, P. C., Houston, for appellants.
    Foreman, Dyess, Prewett, Rosenberg & Henderson, Richard O. Faulk, Houston, for appellee.
   WARREN, Justice.

Citizens Building, Inc., Gloria Acker and Martin R. Nathan appeal from an order of the trial court appointing a receiver for the Citizens Building, Inc.

The main issue on appeal is whether the trial court abused its discretion in appointing a receiver.

James Mitchell and Helen Mitchell, the owners of Citizens Bank Building, leased the premises to a trust sometimes called the Citizens Building Trust. Gloria Acker and E. L. Azios are trustees and beneficiaries under the trust. Citizens Building Trust subleased the building to Citizens Building, Inc., which in turn subleased the building to Harris County. Gloria Acker and Martin R. Nathan each own 25% and E. L. Azios owns the remaining 50% of the common stock of Citizens Building, Inc. Mrs. Acker, Mr. Az-ios and Mr. Martin R. Nathan are the directors of the Corporation. Under the lease between the trust and the corporation, the corporation is obligated to pay $7,000 per month as rent and is responsible for the maintenance and housekeeping of the building. The leasehold interest in the building is the sole capital asset of the trust and the corporation.

For some years, the Citizens Bank Building was sparsely occupied and in a state of disrepair. E. L. Azios and others agreed to obtain a lease, repair the premises, and sublease it for a profit. In 1975 a lease was obtained by the Trust.

Before March 1978, E. L. Azios, as president of the corporation and as trustee and beneficiary under the trust, acted as building manager. Thereafter, at a called meeting of the board of directors, Newton Schwartz was appointed building manager. Since that time numerous disputes have arisen between Mr. Azios and Mr. Schwartz regarding the maintenance and operation of the building. In December of 1978, a dispute arose between Mrs. Acker and Mr. Azios regarding alleged payments due by Mr. Azios to the trust for capital improvements made to the building. Most of these disputes were settled, but the hard feelings have lingered.

On March 6,1979 certain officials of Harris County were notified that future rental payments should be sent to Schwartz instead of Azios.

Because of the dispute as to whom the rental payments were to be delivered, Harris County, pursuant to Section X of its lease, began withholding rental payments to the corporation.

On March 17,1979, Martin R. Nathan and Gloria Acker, as directors of the corporation, sent a mailgram to E. L. Azios notifying him that a special meeting of the board of directors of the corporation would be held at 6:00 p. m., March 19, 1979, at the office of Mrs. Acker for the purposes of electing new officers, appointing a collection agent, appointing a new bookkeeper-accountant, and to discuss matters pertaining to the Harris County lease. The telegram was posted at 13:56 Eastern Standard Time (12:56 p. m., Central Standard Time). The meeting of the board was held ait the appointed time and Martin R. Nathan was elected president of the corporation, the bookkeeper was discharged, a new corporate depository was selected and Newton Schwartz was appointed rental collection agent for the corporation. Mr. Azios was not present. Prior to this meeting Azios was the president of the corporation and collected the rental payments from Harris County.

On March 29,1979 appellee filed suit pursuant to Section 7.05 of the Business Corporation Act, requesting that a receiver be appointed, alleging that (1) the directors were deadlocked in the management of the corporation and the shareholders were unable to break the deadlock (2) an illegal meeting of the board was held removing appellee as president, and (3) notice had been given to Harris County contesting ap-pellee’s right to receive the monthly payment of rentals resulting in a suspension of rental payments by Harris County, all of which could cause a forfeiture of the lease by the corporation.

Appellants claim the order of the trial court was void because:

I. The trial court was disqualified from. hearing the cause.
II. The trial court lacked jurisdiction and authority to appoint a receiver because:
A. There was an absence of necessary parties
B. There was no main suit pending between the parties
C. The proceeding was not ancillary to any other suit or pending cause of action
D. Both parties are claiming exclusive title and possession to the res involved
E. Appellee had other adequate remedies at law and equity to pursue his claims
F. There was no evidence or, alternatively, there was insufficient evidence upon which to grant appointment of a receiver
G. There were no findings that a receiver for specific assets was insufficient or was inadequate relief and no other findings and conclusions
H. No conditions were made for termination of the receivership
I. Appellee having failed to do equity, lacked “clean hands.”

In point of error 1 appellants claim the trial judge was disqualified because he had previously disqualified himself in a previous suit involving the corporation, because appellee’s brother is a member of the Harris County Judiciary, and because the judge was acquainted with appellee and a witness for appellee. Even if proved, none of the reasons was sufficient to disqualify a judge under Art. 5, Section 11 of The Texas Constitution, which provides “No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such degree as may be prescribed by law.” Art. 200a, section 6 provides in part:

“A district judge shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court.”

Appellant did not present a motion to re-cuse to the trial court nor to the presiding judge of the Administrative District. There being no allegation of a matter which would disqualify a judge “for cause” and no motion to recuse filed, this point is overruled.

Appellants allege that since a receiver was appointed before the trial was completed, the judgment should be reversed because the court prejudged the case. There is no evidence in the record to support this allegation.

Appellants point of error II contains nine points of error. An assignment of error is multifarious if it embraces more than one specific ground of error, or if it attacks several and distinct separate rulings of the court. A court of civil appeals may disregard an assignment of error that is multifarious. However, multifarious points will be considered, if, after reviewing the argument, the appellate court can determine with a reasonable certainty the alleged error. Rio Delta Land Co. v. Johnson, 566 S.W.2d 710 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n.r.e.).

Appellants’ subpoints of error C, D, G, H and I, under point of error II are without merit and are overruled. Subpoint of error B was not supported by any authority or argument and we declined to review it. Texas Rules of Civil Procedure, Rule 418(e).

Under point of error II, we will consider whether there was an absence of necessary or indispensable parties, whether appellee had other remedies available, and whether there was any evidence or sufficient evidence to grant the appointment of a receiver.

In an unverified motion to dismiss, appellants alleged, among other things, that all necessary and indispensable parties were not joined, therefore complete relief could not be granted. The motion was presented to the court and taken under advisement, but no ruling was obtained. T.R.C.P., Rule 93(c) requires that a pleading alleging that there is a defect in the parties shall be verified by affidavit unless the truth of such matter appears of record. Appellants waived any defect in the parties in absence of sworn pleadings and in absence of any attempt to bring in additional parties unless their absence constituted fundamental error. Aetna Life Insurance Co. v. Creel, 390 S.W.2d 522 (Tex.Civ.App. — Houston 1965, writ ref’d).

Although Harris County and the Trust were collaterally involved because of their legal relationships with appellants and appellee, the issues involved pertained to the internal affairs of the corporation, and their presence was not so indispensable as to deprive the court of jurisdiction between the parties to the suit. Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex. 1974). This point is overruled.

Appellants next contend that there was no evidence or insufficient evidence upon which to justify the appointment of a receiver.

Evidence produced at the trial showed that the corporation had paid no rent under its lease with the Trust, that there were disputes among the directors as to what debts the corporation owed, there were disputes as to the rightful president, bookkeeper, collection agent and official depository of the corporation. This evidence when considered together with the evidence of the personal animosity existing between appellee and Mrs. Acker and Mr. Schwartz, would support a finding by the court that the corporation was in imminent danger of insolvency as defined by the Texas Business Corporation Act. Even though the obligations of the corporation were being satisfied by the shareholders in some instances, the obligations remain those of the corporation. The ramifications of the failure of the corporation to meet its obligations were apparent to the trial court. If the corporation could not assume the orderly maintenance and operation of the building, Harris County could refuse to renew the lease, leaving the corporation with no income, accrued or otherwise. The lease between the trust and corporation might be forfeited, leaving the corporation void of any capital asset and any reason for existing.

Moreover, there is a question whether appellants gave appellee the requisite two days notice previous to the meeting. The mailgram was posted at 12:56 p. m. CDT March 17 notifying appellee that the meeting was to be held on March 19 at 6:00 p. m. The by-laws of the corporation provide that “notice of any special meeting (of the Board of Directors) shall be given at least two days previous thereto, by written notice delivered personally or mailed to each director at his business address, or by telegram . .. If notice be given by telegram such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company.” There are at least three possible constructions which could be given this notice provision, none of which would give validity to the notice given in our case. In Long v. City of Wichita Falls, 142 Tex. 202, 176 S.W.2d 936 (1944) our Supreme Court held that “day” as used in the law means a calendar day and includes the time elapsing from one midnight to the successive midnight. This rule of interpretation was adopted as a matter of convenience to obviate the necessity of having to make such calculations by hours, minutes and seconds. Using this method of construction, the notice would have been considered given as of 12:00 midnight on the 17th and under the by-laws the meeting could not have been legally held until after 12:00 midnight on the 19th of March. The most general rule used and the one which our legislature has adopted for statutory construction (Vernon’s Ann.C.C.P. § 12.04(a) (Vernon’s Supp. 1978-1979) is that in computing the time before a specified event, either the day on which the period began or the day on which it expired must be included and the other excluded. Using this construction, only one day notice previous to the date of the meeting was given. Using the third method, that is, excluding both the day the notice was delivered and the day thé meeting was held would also result in a finding that the notice was insufficient. This is the construction given to notice of shareholders’ meetings in the State of Delaware when the words “at least” are used. See Mac-Crone v. American Capitol Corp., 51 F.Supp. 462 (Del.1943).

In our case if the 17th, the date of notice, is excluded, then only one day notice “previous thereto” was given, thus the notice was insufficient. The trial court could have concluded that the actions of Acker and Nathan were oppressive, causing the dispute and placing the corporation in imminent danger of insolvency. No abuse of discretion has been shown.

In subpoint of error E, appellants assert that the order appointing the receiver was void because appellee had other adequate remedies. Considering the state of the corporate affairs, as shown by the evidence, we cannot conclude that the other remedies, which appellants mentioned but did not discuss, would have been as prompt, complete, practical and efficient as the appointment of a receiver. Story v. Story, 142 Tex. 212, 176 S.W.2d 925, 927 (1944). This point of error is overruled.

The judgment of the trial court is affirmed.

PEDEN and EVANS, JJ., also sitting.