author: McDONALD, Chief Justice.

text:
    FORNEY ENGINEERING COMPANY, Appellant, v. CANNON COMPUTER COMPANY, Appellee.
    No. 5729.
    Court of Civil Appeals of Texas, Waco.
    June 23, 1977.
    Rehearing Denied July 28, 1977.
    Phillip N. Smith, Jr. and William B. Fink-elstein, Hughes, Luce, Hennessy, Smith & Castle, Dallas, for appellant.
    Gordon H. Rowe, Jr. and J. Carlisle De-Hay, Jr., Gardere, Porter & DeHay, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant (appellant) Forney from that portion of a judgment which assessed punitive damages against it.

Cannon Computer Company, plaintiff, sued Forney Engineering Company, defendant, alleging plaintiff entered a “Computer Services Licensing Agreement” with defendant whereunder a trade secret of plaintiff described as a data processing system known as the Material Control System was licensed to defendant; that the system was not to be duplicated by defendant or supplied to any third party; that defendant reproduced substantial parts of the system and supplied it to a third party; that defendant’s conduct was a breach of the written contractual agreement and also a tort.

Trial was to a jury which in answer to special issues found:

1) There was a conversion of property of Cannon Computer by defendant Paul Estes (an employee of Forney).
2) The conversion of the property of Cannon Computer was authorized or ratified by Bill Seledic (an executive of Forney).
3) Trade secret and proprietary rights of Cannon Computer were violated by Paul Estes (an employee of Forney).
4) Such violations were authorized or ratified by Bill Seledic (an executive of Forney).
5) $28,612.88 “if paid now in cash * * [will] fairly and reasonably compensate Cannon Computer Company for the pecuniary loss suffered by it as a result of the breach of the Computer Services and Licensing Agreement dated February 2, 1974”.
6) “Do you find from a preponderance of the evidence that Cannon Computer Company is entitled to punitive damages against Paul Estes and Forney Engineering Company?
Answer: Yes.
‘Punitive damages’ means an amount of money which you may in your discretion, award as an example to others and as a penalty or by way of punishment, in addition to any amount which may have been found by you as actual damages. The various elements which you may consider in connection with your assessment of punitive damages, if any, and not otherwise, are compensation for inconvenience, attorney’s fees, expense of litigation, and other expenses not recoverable as actual damages, if any. Answer in dollars and cents if any. Answer: $63,000.”

The trial court rendered judgment on the verdict for $91,612.88 (i. e., $28,612.88 plus $63,000.) against defendant Forney.

Defendant appeals on 10 points, the dominant contention of which is:

The trial court erred in granting punitive damages because there was no jury finding that defendant acted maliciously, wantonly, or in reckless disregard of the rights of plaintiff, or with other reprehensible state of mind as a prerequisite to an award of punitive damages.

Defendant asserts that a finding by the jury of malice, wantonness or other reprehensible state of mind is a necessary prerequisite to the recovery of punitive damages. We agree.

Defendant objected to Issue 6 for the failure to submit to the jury the fact issue of whether or not Estes or Forney acted maliciously, wantonly, fraudulently or in reckless disregard of the rights of plaintiff, as a prerequisite to an award of punitive damages; and in addition tendered and requested the submission of this fact issue of malice or other reprehensible state of mind; which objections and requests were overruled.

We sustain defendant’s contentions. The jury found: 1) defendant converted plaintiff’s property; 2) defendant breached its contract with plaintiff; 3) that plaintiff was damaged $28,612.88 as result of the breach of contract; and 4) plaintiff is entitled to punitive damages of $63,000. “as an example to others and as a penalty or by way of punishment”.

Assuming without deciding that the actual damages are recoverable for the tort committed by defendant as well as the breach of contract; punitive damages may still not be awarded plaintiff absent a finding of malice, wantonness or other reprehensible state of mind on part of defendant. Ware v. Paxton, S.Ct., 359 S.W.2d 897; Southwestern Investment Co. v. Alvarez, S.Ct., 453 S.W.2d 138; Holland v. Lesesne, Tex.Civ.App. (San Antonio) NRE, 350 S.W.2d 859.

The judgment is reformed by the elimination of $63,000. punitive damages, and as thus reformed is affirmed.

REFORMED and AFFIRMED.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Constantino ZARATE, Appellant, v. Miguel (Mike) P. CORTINAS, Jr., Appellee.
    No. 1188.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 23, 1977.

      Raul A. Gonzalez, Gonzalez & Hamilton, Brownsville, for appellant.
    George W. Storter, Storter & Pena, Brownsville, for appellee.
   OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

Our original opinion has been withdrawn and this opinion is substituted therefor. This is a summary judgment case. Plaintiff Constantino Zarate brought suit for damages against Miguel (Mike) P. Cortinas, Jr. for allegedly slanderous statements made in a complaint filed with the Sheriff’s office in Brownsville, Cameron County, Texas. Defendant filed a motion for summary judgment claiming that the alleged slanderous statement was absolutely privileged. After considering both parties’ summary judgment evidence, the trial court granted the motion. From this action by the trial court, plaintiff has perfected his appeal to this Court.

The undisputed facts show that the defendant is a County Commissioner of Cameron County, Texas, and the plaintiff is a county employee presently holding the position of Chief Deputy County Clerk. The plaintiff had been employed by Cameron County for approximately 53 years. The controversy arose in 1974 when the plaintiff Constantino Zarate, Carlos Garza, defendant’s cousin, and Joe Rivera were vying for the position of County Clerk of Cameron County in the Democratic primary election. The plaintiff was eliminated during the first election. During the run-off election between Joe Rivera and Carlos Garza, the plaintiff Zarate publicly endorsed and worked for the election of Joe Rivera. The defendant County Commissioner Cortinas publicly endorsed and worked for the election of Carlos Garza. Joe Rivera won the election and is presently the County Clerk of Cameron County, Texas. After the election, defendant Cortinas filed a complaint with the Cameron County Sheriff’s office which accused the plaintiff of the unauthorized loan of certain county property, to-wit: a hot plate, one extension cord and a fan. The plaintiff brought this suit against Cor-tinas alleging that the complaint he made to the Cameron County Sheriff’s office was false and that such statement was made with malicious intent and that such action on the defendant’s part constituted actionable slander. The trial court granted the summary judgment based on the defense of absolute privilege.

Plaintiff’s only point of error is that the trial court erred in granting defendant’s motion for summary judgment because the summary judgment evidence raised a fact question as to whether or not defendant had malicious intent in the filing of the complaint. The resolution of this point depends (considering that the statement was made and that it was false) on whether or not the communication from defendant Cor-tinas to the Sheriff’s office was absolutely privileged or was qualifiedly privileged. If the privilege was absolute, then the trial court was correct. If the privilege was qualified, then a fact question existed as to whether or not defendant Cortinas made the statement with malice.

Generally, in an action for defamation, a defendant is limited to only two complete defenses: truth and absolute privilege. These defenses avoid all liability when established. Although there are many other defenses that go toward mitigation, none of these are relevant as it concerns the case before us. An absolutely privileged communication is one for which, by reason of the occasion upon which it was made, no remedy exists in a civil action for damages for libel or slander even though the language was false and was uttered or published with express malice. 86 Tex. Jur.2d, Section 60. Privilege rests upon the rule of public policy: that is, the conduct which otherwise would be actionable may escape liability because the defendant is acting in furtherance of some interest of social importance which is entitled to protection even at the expense of uncompensated harm to the plaintiff’s reputation. Absolute privilege has necessarily been extended by general agreement between the courts and the public to judicial, legislative, and executive proceedings and to communications between husband and wife and other situations of similar import. See W. Prosser, Law of Torts § 114 (4th Ed. 1971).

On the other hand, a qualified privilege occurs where the social policy considerations (public policy and interest) are of relatively less weight so that inquiry into the motive and reasonableness behind the statement is permitted. Such communications are privileged when made in good faith on any subject matter in which the author has an interest, or with reference to which he has a duty to perform to another person having a corresponding interest or duty. The privilege is termed conditional or qualified because the person availing himself of the privilege used it in a lawful manner and for a proper purpose. The effect of such privilege is to justify the communication when it was made with proper motives and without actual malice.

In Texas, the rule has been established that communications uttered or published in the course of a judicial proceeding are absolutely privileged and this applies to proceedings before executive officers, boards or commissions which exercise quasi-judicial powers. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942). This is true even though the statement was not relevant or pertinent to the issues involved in the case and was false and uttered with malice. The Supreme Court in the Reagan case said:

“. . . It is the occasion, not the communication, which creates or furnishes the privilege. The rule is one of public policy. It is founded on the theory that the good it accomplishes in protecting the rights of the general public outweighs any wrong or injury which may result to a particular individual . . .”

However, the Reagan case is distinguishable from the case before us. The communication in the Reagan case was from an insurance company to the insurance commission which is a quasi-judicial body. In the case before us, the record is not clear as to whether or not Cortinas was acting in his official capacity or as a private citizen. Regardless of which capacity he was acting in the communication with the peace officer he did not enjoy an absolute privilege. See Vogt v. Guidry, 229 S.W. 656 (Tex.Civ.App. —San Antonio 1921, no writ). A review of other jurisdictions who have studied the question of this type of communication indicates a division of authority. However, the majority of the jurisdictions holds that this type of communication is qualified. See Porterfield v. Burger King Corporation, 540 F.2d 398 (8th Cir. 1976); S. H. Kress and Company v. Self, 22 Ariz.App. 230, 526 P.2d 754 (1974); Bradford v. Mahan, 219 Kan. 450, 548 P.2d 1223 (1976); Schafroth v. Baker, 276 Or. 39, 553 P.2d 1046 (1976); Lyb-rand v. The State Co., 179 S.C. 208, 184 S.E. 580 (S.C.1936) New Jersey & Maryland hold that such privilege is absolute. See Picone v. Talbott, 29 Md.App. 536, 349 A.2d 615 (1975); Genito v. Rabinowitz, 93 N.J.Super. 225, 225 A.2d 590 (1966).

We are of the opinion that the better reasoned rule is to hold that the communication of alleged wrongful acts to an official authorized to protect the public from such acts is a qualified privilege. We fully recognize that there is a strong public policy consideration that such communications be given some privilege against civil prosecution for defamation. It is obviously vital to our system of criminal justice that citizens be allowed to communicate to peace officers the alleged wrongful acts of others without fear of civil action for honest mistakes. However, we do not feel this privilege should be unbridled. The qualifying criterion for such a privilege is that the statements must be made in good faith and without malice. See: Denton Publishing Company v. Boyd, 460 S.W.2d 881 (Tex.Sup.1970); Gulf Coast Construction Company v. Mott, 442 S.W.2d 778 (Tex.Civ.App. — Houston [14th Dist.] 1969, no writ); Cooksey v. McGuire, 146 S.W.2d 480 (Tex.Civ.App.— Eastland 1941, no writ); Foley Bros. Dry Goods Co. v. McClain, 231 S.W. 459 (Tex.Civ.App. — Beaumont 1921, no writ); Koeh-ler v. Dubose, 200 S.W. 238 (Tex.Civ.App.— San Antonio 1918, writ ref’d).

The communication involved in this case does not come within the traditional areas of absolutely privileged communications recognized in this State. We see no reason to extend the absolute privilege to this type of communication. To so hold would unnecessarily deny those innocent victims of maliciously or recklessly filed complaints an opportunity to seek remuneration for their injury. We perceive of no benefit to society which necessitates holding such eommu-nications to be absolutely privileged. If one makes this type of a complaint with malice, then he should not be permitted to invoke the defense of privilege but should answer in damages.

We hold that if the complaint was in fact made; if such complaint was in fact false; and if Cortinas acted maliciously in filing the complaint against Zarate, then the trier of facts should determine the extent of damages, if any, that the plaintiff suffered. The trial court erred in granting Cortinas’ motion for summary judgment. The judgment of the trial court is REVERSED and the cause is REMANDED for trial. REVERSED AND REMANDED.

Appellee’s Motion for rehearing is overruled.


author: CADENA, Justice.

text:
    V. I. P. COMMERCIAL CONTRACTORS et al., Appellants, v. Necati ALKAS, Individually and d/b/a Contract Design Company, Appellee.
    No. 15805.
    Court of Civil Appeals of Texas, San Antonio.
    June 29, 1977.

      Joel William Ellis, Carter & Ellis, Harlin-gen, for appellants.
    Bruce Waitz, Van H. Johnson, San Antonio, for appellee.
   CADENA, Justice.

Defendants, Bill D. Bass, and two corporations, V. I. P. Commercial Contractors and Valley International Properties, Inc., appeal from a judgment holding them liable on a promissory note and awarding plaintiff, Necati Alkas, d/b/a Contract Design Co., recovery for the face amount of the note plus interest and attorney’s fees. The two corporations will be referred to in this opinion as “Commercial” and “International.”

Although all three defendants perfected an appeal from the judgment below, only Bass has filed a brief in this Court. The brief filed by Bass raises only questions relating to his individual liability and asserts no error insofar as the judgment against the two corporations in concerned. The appeals of V. I. P. Commercial Contractors and Valley International Properties, Inc., are, therefore, dismissed for want of prosecution.

The note in question, in the amount of $35,578.76, provided for interest on the principal at the rate of 12 percent per year and contained the usual provisions concerning attorney’s fees. It was signed on behalf of Commercial by its president, Robert S. Leis-ing, and on behalf of International by its president, Bass. Bass also signed the note individually. None of the defendants denied execution of the notes or raised any affirmative defenses in their pleadings.

Plaintiff filed a motion, supported by his affidavit, for summary judgment on all issues other than the question of attorney’s fees. None of the defendants filed responses to such motion, nor did any one of them appear at the hearing.

The trial court granted summary judgment in favor of plaintiff on the question of defendants’ liability on the note and reserved the question of attorney’s fees for subsequent determination.

The hearing on the question of attorney’s fees was held on October 26,1976, at which time Bass asked for leave to file an amended answer alleging that the note was usurious on its face and seeking recovery of the statutory penalties for usury. The trial court denied leave to file such amended pleading and also overruled a motion filed by Bass praying that the prior interlocutory judgment on the question of liability on the note be set aside. After trial without a jury on the question of attorney’s fees the trial court rendered a final judgment in favor of plaintiff.

Bass, by his first point, asserts that the trial court erred in granting the interlocutory summary judgment because the note provides for usurious interest on its face. As already pointed out, Bass made no attempt to raise the question of usury until his unsuccessful effort to file an amended answer on the date of the hearing on the question of attorney’s fees.

In his affidavit in support of his motion for “partial” summary judgment, plaintiff, in addition to swearing to the existence of facts sufficient to otherwise support a judgment in his favor on the note, swore to the following:

1. Prior to the execution of the note, Commercial had purchased from plaintiff goods, wares and merchandise of the value of $35,578.76, substantially all of which were for the use and benefit of International. The debt resulting from such purchase was never paid despite demand for payment made by plaintiff.

2. Leising, president of Commercial, and Bass, president of International, importuned plaintiff to accept a promissory note for the debt, stating that if plaintiff agreed to accept such a note Bass would act as “surety and/or guarantor” and would be obligated, in his individual capacity, for payment of the note. Plaintiff agreed to accept such a note, which is the note on which plaintiff’s demand in this case is based.

No affidavits challenging the truth of such statements were filed by defendants, so that the sworn statement to the effect that Bass signed the note in his individual capacity as surety or guarantor must be taken as true.

Article 1302-2.09, Tex.Rev.Civ.Stat. Ann. (Supp.1976), provides that a corporation borrowing in excess of $5,000.00 may contract for any rate of interest not in excess of 1½ percent per month. Therefore, insofar as the corporate borrowers in this case are concerned, the provision for interest at the rate of 12 percent annually did not constitute usury.

The statute expressly provides that where a corporation agrees to pay interest at a rate permitted by its provisions, “the claim or defense of usury by such corporation, its successors, guarantors, ... is prohibited.” This prohibition against the assertion “of the claim or defense of usury” by the guarantor applies even though the guarantor is an individual who, as against the holder of the note, is primarily liable. Universal Metals & Machinery, Inc. v. Bohart, 539 S.W.2d 874 (Tex.1976).

By his second point Bass complains of the refusal of the trial court to permit him to file his amended answer some 80 days after the rendition of the partial summary judgment. In such proffered pleading Bass alleged, under oath, that he was no more than an accommodation maker, that no money changed hands at the time the note was executed, and that he borrowed no money from plaintiff and received no money from plaintiff.

If, as he insists, Bass signed the instrument only for the purpose of accommodating the corporate borrowers, he stands in the position of a surety, even though he is primarily liable on the instrument, since his liability is subject to no conditions precedent.

Although accommodation makers are popularly referred to as “co-makers,” their contract is one of suretyship and should be distinguished from the contract of a joint maker. According to § 3.415(a), Tex.Bus. & Comm.Code Ann. (1968), an accommodation party is one who signs an instrument in any capacity for the purpose of lending his name to another party to the instrument. According to Comment 1 accompanying this section, an accommodation party “is always a surety (which includes a guarantor), and it is his only distinguishing feature.” H. Arant Suretyship, § 14 (1931); Clark, Suretyship in the Uniform Commercial Code, 46 Texas L.Rev. 453, 455-57 (1968).

Even if we assume, without deciding, that the trial court erred in rejecting the proffered amended pleading, the error was harmless, since the amended pleading presented nothing which could be the basis of a defense or a claim by Bass.

What we have said in rejecting the first two points presented by Bass compels the conclusion that his third point, which complains of the refusal of the trial court to set aside the interlocutory summary judgment, is without merit. The sole basis for this motion is the alleged fact that the note in question embodied a provision for usurious interest. Neither the motion nor anything else in the record suggests any basis for holding that Bass is not liable on the note or that he has any conceivably valid claim against plaintiff.

The judgment of the trial court is affirmed.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    COASTAL STATES GAS PRODUCING COMPANY, Appellant, v. Edward HAMILTON, Independent Executor of the Estate of W. E. Hamilton, Deceased, Appellee.
    No. 6596.
    Court of Civil Appeals of Texas, El Paso.
    June 29, 1977.
    Francis E. Keating, Legal Dept., Coastal States Gas Producing Co., Houston, for appellant.
    J. M. Preston, Pecos, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

The question presented in this case is whether the two-year statute of limitations, Article 5526, or the four-year statute of limitations, Article 5527, Tex.Rev.CiviStat. Ann., applies to an action to recover money mistakenly paid where the mode of payment is by check.

Appellant mistakenly issued three checks to Appellee in the total sum of $2,377.45. Appellee cashed the checks and, upon his subsequent refusal to repay or refund the amount thereof, this suit was brought. This suit was brought more than two years after the cashing of the checks, and the trial Court granted Appellee’s motion for summary judgment based on the two-year statute of limitations. Tex.Rev.Civ.Stat. Ann. art. 5526. We affirm.

Appellant contends that the trial Court erred in rendering summary judgment on the basis of the two-year statute of limitations because where a check constitutes evidence of a contract in writing, the four-year statute of limitations applies. We overrule this contention on the basis that the obligation here sued on is not contained in the checks. Stated otherwise, the cause of action is not, in the words of Article 5527, “evidenced by or founded upon any contract in writing.”

Appellant, as Plaintiff, pled that it mistakenly sent the checks to the Defendant, that the Defendant was aware that he had committed no act for the Plaintiff which warranted compensation, and by doing so the Defendant has wrongfully taken the Plaintiff’s money and used it without rewarding the Plaintiff. Plaintiff then prayed for the recovery of the $2,377.45, plus interest accrued, and all expenses incidental for efforts to collect “this debt.” The cancelled checks were attached as Exhibit “A” to the petition. It is readily apparent that the obligation sought to be enforced here is not contained on the face of the checks. The Defendant/Appellee is a payee on the checks and the Plaintiff/Appellant is the maker, and the obligation expressed is that payment be made to Ap-pellee. This has been done and that contract is now completed. This suit is not one to enforce the terms of the checks. The checks evidence an amount that has been paid to the Appellee, but they contain no obligation on the part of the Appellee to do anything. The obligation sought to be enforced is not a “contract in writing” within the meaning of the limitation statute, Article 5527. The leading and most oft cited case construing that term is International Printing Pressmen and Assistants’ Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729, at 736 (1946), wherein the Court said:

“ * * * It has been held in this State that ‘in order for an action to be one for an indebtedness evidenced by or founded upon a contract in writing, as referred to in the above quoted statute * * * the written instrument relied upon must itself contain a contract to do the things for the nonperformance of which the action is brought.’ * * *”

As noted earlier, the written instrument, checks in this case, does not contain a contract to do the things for the nonperformance of which the action is brought.

With this determination of the first point of error, we do not reach Appellant’s second point. The judgment of the trial Court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Appellant, v. Alberto URESTI, Appellee.
    No. 1010.
    Court of Civil Appeals of Texas, Tyler.
    June 30, 1977.
    Rehearing Denied July 28, 1977.

      George H. Spencer, Robert J. Rosenbach, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellant.
    Barry Snell, Bayne & Snell, LeLaurin, Adams, Eichelbaum & Sanders, San Antonio, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a summary judgment rendered on appellee, Alberto Uresti’s, counterclaim of usury. Appellant, General Motors Acceptance Corporation (hereinafter referred to as “GMAC”) brought an action against appellee, Alberto Uresti (hereinafter referred to as “Uresti”), for an alleged default on Uresti’s part in the payment of monthly payments for a truck. Uresti’s counterclaim alleging that GMAC, by not rebating any unearned time-price differential in its suit, had charged in excess of twice the amount of time-price differential permitted by statute. Uresti filed a motion for partial summary judgment, based upon GMAC’s sworn petition, affidavit for sequestration, and the deposition of GMAC’s special collector manager, E. L. Koehlor. The trial court, upon considering the motion for partial summary judgment, pleadings, Koehlor’s deposition and his affidavit for sequestration granted summary judgment finding therein that GMAC had “accelerated the entire unpaid balance due on the contract made the basis of this suit, and did not rebate unearned time-price differential”; and that “by accelerating the balance and filing suit for the entire amount of unpaid principal plus unearned time-price differential, GMAC had, as a matter of law, charged time-price differential in excess of double the amount authorized by law.” GMAC has appealed.

The facts of this case are undisputed. On January 14, 1975, Uresti purchased a GMC truck-trailer from San Antonio Truck Sales, executing a written contract under which he agreed to pay the balance in 48 monthly installments of $580.08 each. The contract was assigned by the dealer to GMAC. Ur-esti became disabled and stopped making payments on his contract. The contract provided for disability insurance benefits, but the benefits were limited to $250.00 per month and were insufficient to keep the payments current. On August 7, 1975 (approximately 8 months from the inception of the contract) GMAC filed suit, alleging as follows:

“Pursuant to the terms of said contract, Plaintiff has declared the total balance of said contract due and payable and the Defendant is hereby indebted to Plaintiff in the principal sum of TWENTY FIVE THOUSAND, FIVE HUNDRED TWENTY-THREE AND 52/100 DOLLARS ($25,523.52), together with FIVE HUNDRED AND NO/lOO DOLLARS ($500.00) as reasonable attorneys’ fees.”

GMAC has filed an affidavit for sequestration, executed by Mr. E. L. Koehler who was special collection manager for GMAC. In the affidavit, Mr. Koehler stated under oath that:

“The amount of said indebtedness secured by said lien is TWENTY FIVE THOUSAND, FIVE HUNDRED TWENTY-THREE AND 52/100 DOLLARS ($25,523.52), together with reasonable attorney fees in the amount FIVE HUNDRED AND NO/100 DOLLARS ($500.00); that all of said indebtedness is just and unsatisfied and is now due.” (Emphasis added).

Uresti answered, and thereafter, the deposition of Mr. Koehler was taken by Uresti’s attorney. Mr. Koehler testified that it was his job to prepare delinquent accounts for litigation. He also testified that he had in fact signed the sequestration affidavit, and that the facts in it were correct. He specifically stated that when he swore that the indebtedness in the amount of “TWENTY FIVE THOUSAND, FIVE HUNDRED TWENTY-THREE AND 52/100 DOLLARS ($25,523.52)” was due, he was sure he was correct. He acknowledged that he had checked the figures. He testified that he had arrived at the figures by careful computation, just the way he always does.

Thereafter, Uresti amended his answer and asserted a counterclaim against GMAC, alleging that GMAC, by suing for and demanding the unearned portion of the time-price differential, was charging time-price differential in the amount of $6,306.50, when in fact the maximum amount to which GMAC was entitled was $1,082.25. After receiving Uresti’s counterclaim, GMAC amended its petition. It continued to demand $25,523.52, but added the phrase “subject to a refund credit as provided in the retail installment contract which is Exhibit A hereto and as provided in Article 5069-7.04 Texas Revised Civil Statutes.” Mr. Koehler’s affidavit for sequestration was similarly amended. An affidavit was also filed by Mr. Koehler in opposition to Uresti’s motion for summary judgment, in which he stated that GMAC has never “denied the right of the Defendant, Alberto Uresti, to receive a refund credit at the time of prepayment in full of the total indebtedness.” The affidavit goes on to explain that the amount of the prepayment would be computed in accordance with the “Rule of 78ths.”

Mr. Koehler never disavowed his previous sworn statements and never contended that they were inadvertently made. GMAC continued to demand the total amount of the indebtedness, including the unearned time-price differential, stating only that a rebate would be made in accordance with the Rule of 78ths when Uresti actually prepaid the indebtedness.

GMAC brings forward three points of error:

(1) the court erred in holding that GMAC’s original pleadings alone constituted an illegal charge of time-price differential where the original pleadings incorporated the contract provisions for statutory rebate and the pleadings were amended to specifically tender any rebate required by law;

(2) the court erred in holding that Art. 5069-7.04, which provides for a refund upon full payment by a buyer, requires a refund credit on acceleration of maturity and before any prepayment; and

(3) the court erred in holding as a matter of law that GMAC’s original pleadings constituted an illegal charge of time-price differential under Art. 5069-7.03(1) because the summary judgment record at least raised a fact issue as to whether GMAC did make an illegal charge within the meaning of Art. 5069-8.01.

The essential questions presented in this appeal are:

(1) does the Consumer Credit Code permit a creditor to accelerate maturity on a retail installment contract without rebating the unearned portion of the time-price differential; and

(2) does a creditor “charge” excessive time-price differential by suing for and demanding such time-price differential.

These questions have been decided adversely to GMAC in Moore v. Sabine National Bank, 527 S.W.2d 209 (Tex.Civ.App. —Austin 1975, writ ref’d n.r.e.). The Moore case is virtually identical to this one. That case clearly holds that the creditor is not entitled to unearned time-price differential upon acceleration of maturity. The case also clearly holds that the plaintiff’s notice of intention to repossess in its original petition and its sequestration affidavit demanding excessive time-price differential constituted a “charge” of unearned time-price differential in violation of the Texas Consumer Credit Code which became effective January 1, 1968. The Moore case was followed by the Waco Court of Civil Appeals in Southwestern Investment Co. v. Mannix, 540 S.W.2d 747 (Tex.Civ.App.1976, writ granted) in which the “charge” of excessive time-price differential was contained in a court pleading.

As a matter of fact, GMAC by its amended original petition did not eliminate its demand for excessive time-price differential. The prayer in GMAC’s amended petition is for the entire amount of the indebtedness, including all the time-price differential both earned and unearned, subject to a refund credit as provided for in the installment contract and Art. 5069-7.04, V.A.C.S., together with interest as authorized by law. Article 5069-7.04 provides for prepayment of the installment contract only if the buyer prepays in full at any time before maturity. “Prepayment” is a payment before maturity. “Acceleration” is a change in the date of maturity from the future to the present. Ramsey v. American Finance System of Atlanta, Inc., No. C-742002A (N.D.Ga., March 25, 1975), 5 C.C.H. Consumer Credit Guide, Paragraph 98, 510; Houston v. Atlanta Federal Savings and Loan Association, No. C-74-119A (N.D.Ga., March 25, 1975), 5 C.C.H. Consumer Credit Guide, Paragraph 98, 558. Once the maturity date is accelerated to the present, it is no longer possible to prepay the debt before maturity. Any payment made after acceleration of the maturity date is made after maturity, not before.

Thus all the amended pleadings of GMAC did was to allege that appellee would be entitled to a rebate in accordance with the rule of 78ths if Uresti prepaid in full at any time before maturity, when in fact the date of maturity had already been accelerated and such “prepayment” was impossible. This is not a case where the buyer prepaid the installment contract. This is a case where default was made in the payments and the entire unpaid balance due was accelerated. The Moore case held that this was a “charge” of excessive time-price differential.

In determining the matter of rendering or affirming a summary judgment in favor of a party, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Harrington v. Young Men’s Christian Association of Houston and Harris County, Texas, 452 S.W.2d 423 (Tex.1970); Rule 166-A(c), T.R. C.P. The burden of proof is upon the party moving for summary judgment and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Company, 391 S.W.2d 41, 47 (Tex.1965). The evidence upon such a motion must be viewed in the light most favorable to the party opposing the motion. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Parrott v. Garcia, 436 S.W.2d 897, 899 (Tex.1969). We believe the movant (Uresti) has met the burden required of him.

The judgment of the trial court is affirmed.

McKAY, J., not participating.

      . The “Rule of 78ths” is a mathematical formula for refunding unearned interest when an installment note is paid before maturity. In Texas, this refund formula is found in Articles 5069-3.15, 4.01, 6.01 and 7.04, Tex.Rev.Civ. Stat.Ann.


author: McKAY, Justice.

text:
    SENTRY DEVELOPMENT CORPORATION, Appellant, v. Otto NORMAN et ux., Appellees.
    No. 1027.
    Court of Civil Appeals of Texas, Tyler.
    June 30, 1977.
    Rehearing Denied July 28, 1977.
    Howard D. Pattison, Athens, for appellant.
    Rod L. Pirot, Dallas, for appellees.
   McKAY, Justice.

This case involves the rescission of a contract to sell land. Appellees (hereinafter referred to as the husband and the wife) brought suit to recover $2,000.00 paid to appellant pursuant to a written instrument, on alternative grounds (1) that there had been a failure of a condition precedent (approval of membership in a country club with which appellant was associated) which invalidated the contract, and (2) that the contract, if valid, was procured by fraud in the inception. Trial was before the court who rendered judgment for appellee in the amount of $2,000.00 plus interest and court costs, from which appellant has perfected this appeal. No findings of fact or conclusions of law were filed by the trial court.

Appellant brings three points of error complaining that the implied finding of the trial court “that the Appellees’ application for membership in the Arrowhead Yacht and Country Club was not approved” was supported by (1) no evidence or (2) insufficient evidence or (3) that such finding was against the great weight and preponderance of the evidence. Before passing upon the points presented we must consider the rules we are bound to follow. Where no findings of fact or conclusions of law are filed we must presume on appeal that every fact issue and such implied findings as were necessary to support the judgment were found by the trial court. Morris v. Texas Elks Crippled Children’s Hosp., Inc., 525 S.W.2d 874, 881 (Tex.Civ.App. — El Paso 1975, writ ref’d n. r. e.). In passing upon whether there is no evidence to support the judgment we must consider only the evidence favorable to the findings of the trial court, but in passing on the insufficiency of the evidence we consider all the evidence in the record. Richardson v. Holmes, 525 S.W.2d 293, 295 (Tex.Civ.App. — Beaumont 1975, writ ref’d n. r. e.). In the absence of findings and conclusions the judgment of the trial court must be affirmed if there is any legal theory which supports the judgment which has support in the evidence. Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref’d n. r. e.).

The record reveals that some time early in September of 1973 appellees entered into negotiations with Paul Hendrix, a salesman for appellant, concerning the purchase of a lot in the Arrowhead Subdivision of Henderson County, Texas. The couple was looking for a retirement home, and the husband was particularly looking for a place to play golf. Hendrix told the husband that he was “setting up the golf course” near the lots in question. The course was to be eighteen holes long, and set up through the Arrowhead Yacht and Country Club. There were also plans for “the addition and building of a very nice club house which would be adequate.” Hendrix told the husband that “nine holes at least” were planned for “spring of the next year.” Tennis courts were also planned. These plans were confirmed in conversations with Alan D. Whatley, the president of appellant. On September 13,1973, a contract for the sale of one of the lots in the subdivision was entered into between appellant and appellees, such contract being signed by both Hendrix and Whatley. The contract stated it was “subject to approval of application for membership in ARROWHEAD YACHT & COUNTRY CLUB which application is expressly made a part hereof.” On September 15, 1973, appellees deposited a check for $2,000.00 with appellant as a “down payment.” The husband testified that subsequent to this deal he had worked with Hendrix in his spare time to promote membership in the club.

As to approval of his membership in the club, the husband filled out an application for membership which was signed for approval by “A. D. Whatley for A.H.Y. & C.C.” but the date of such purported approval is not in the record. Whatley testified that he had the authority to approve memberships in the club (although there is no evidence from any other source that Whatley was authorized to act for the Arrowhead Yacht and Country Club in approving applications for membership) and that upon each approval he sent a copy of the application to the new member involved. He further testified that Hendrix had brought him the appellees’ application, that he had signed the application and that he had told Hendrix to tell the appellees that they would be acknowledged as members and have full use of the facilities although membership cards weren’t to be made available until later. However, the husband testified that he was never informed as to his acceptance nor was he ever sent a dues statement. Whatley said that he didn’t “recall a specific communication” to the husband concerning the matter but that he had told him that there would be “no dues until all the facilities were complete” and that “the charter initiation fee would be waived in this case.” The wife, when asked if she had ever received “any type of form of acceptance in the Arrowhead Yacht and Country Club” replied, “To my knowledge, no.”

Subsequent to the appellees’ purchase, construction began “lagging” through the spring of 1974. The husband testified that he never was able to use the golf course, that “the grass hadn’t grown on the fairway, it was planted, but it was in the spring, it wasn’t time for it to be mature yet.” The only clubhouse built before February 1, 1975, was a temporary one which the husband “presumed it was Paul Hendrix’ house being built.” The club itself was not incorporated until September of 1975; up until that time it was “represented as Mr. Bud Ross, Trustee.” The husband, when asked whether he would have bought the property had it not been for the promises of the club and the golf course, replied, “I doubt it.” The husband made his first demand for a refund on the down payment on June 30, 1974, on the golf course when Whatley “said he would send me a check the next week”; however, by letter dated September 3, 1974, Whatley refused to refund the money.

Where the trial judge is the trier of fact he may draw reasonable inferences and deductions from the evidence, and his findings, including implied findings, may not be disregarded by an appellate court if the record discloses evidence of probative value which, with inferences that may be properly drawn from the evidence, will reasonably support such findings. Johnson v. Buck, 540 S.W.2d 393, 411 (Tex.Civ.App.— Corpus Christi 1976, writ ref’d n. r. e.). It is the sole province of the fact finder to judge the credibility of the witnesses and the weight to be given their testimony.

Our view of the record is that there is some evidence of probative value which supports an implied finding that appellees were not approved for membership in the Arrowhead Yacht and Country Club, and that, therefore, the condition precedent was not met. Whatley testified that it was his practice to notify new members of their approval by sending a copy of the application to such new members, but the record reveals that no notice by anyone was given to appellees. Appellees testified that they did not receive any notice of being approved for membership. We believe the record shows that there is at least circumstantial evidence that appellees were not accepted for membership. We hold that the evidence supports the implied finding that appellees were not approved for membership in the Arrowhead Yacht and Country Club, and that such finding supports the judgment. Point one is overruled.

After reviewing the entire record, we are of the opinion the evidence is sufficient to support the judgment, and that such judgment is not against the great weight and preponderance of the evidence. Points two and three are overruled.

The judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    Roy K. FURR and Don G. Furr, Executors, Appellants, v. Shelley Furr HALL, Appellee.
    No. 8747.
    Court of Civil Appeals of Texas, Amarillo.
    June 30, 1977.
    Rehearing Denied July 25, 1977.

      Crenshaw, Dupree & Milam, James H. Milam and Cecil C. Kuhne, Jr., Lubbock, for appellants.
    Nelson, McCleskey, Harriger & Brazill, Lubbock, McGinnis, Lochridge & Kilgore, Morgan Hunter, Austin, for appellee.
   REYNOLDS, Justice.

Resolving the ultimate issues, the trial court correctly determined that two of the three executors’ proposed redemption of the estate’s shares of stock by corporations which the two executors successfully controlled and managed as directors and stockholders, as well as officers in two of the corporations, would violate V.T.C.A., Probate Code § 352 (1956), and would be enjoined. Affirmed.

Roy Furr died 13 June 1975, survived by his wife and their three children. His will, with an attached codicil, named his children, Roy K. Furr, Don G. Furr and Shelley Furr Hall, who are devisees under the will and the beneficiaries of a trust established by the codicil, independent executors of his estate in the event his wife, Lela Rosellen Furr, should die, resign or be unable to act as executrix. When Mrs. Furr declined to qualify as the executrix, Roy K. Furr, Don G. Furr and Shelley Furr Hall, referred to for simplicity as Roy, Don and Shelley, respectively, duly qualified as joint independent executors and executrix of their father’s estate.

At Roy Furr’s death, the community estate had assets of approximately $7,000,000, the community debts were approaching $5,000,000, and sufficient cash was not available to satisfy the debts. Among the assets of Roy Furr’s estate were shares of stock of Furr’s, Inc., Furr’s Realty Company, Furr’s Cafeterias, Inc., and Farm Pac Kitchens, Inc. Two of the corporations, Furr’s, Inc., and Farm Pac Kitchens, Inc., were beneficiaries of insurance policies on the life of the decedent approximating $3,400,000.

After several meetings, executors Roy— who is president and chief executive officer of Furr’s, Inc., and Furr’s Realty Company, as well as a director of and a stockholder in all of the named corporations — and Don— who is chairman of the board and chief executive officer of Furr’s Cafeterias, Inc., as well as a director of and a shareholder in all of the named corporations — proposed to receive the life insurance proceeds in redemption of certain shares of the Furr corporations’ stock from the estate to generate enough cash to pay the estate’s debts. Without the presence or participation of Roy and Don, the board of directors of Furr’s, Inc., and Furr’s Cafeterias, Inc., voted to redeem shares of their stock from the estate at a price the court found to be the fair market value to the estate. (Prior to trial, Furr’s Realty Company and Farm Pac Kitchens, Inc., merged, and Furr’s Realty Company became the surviving corporation.)

Thereupon, Shelley, in her capacity as a devisee, brought this action, alleging that, because of Roy’s and Don’s individual ownership of capital stock in and fiduciary relationships to the purchasing corporations, the proposed redemption would constitute a sale by independent executors to themselves prohibited by V.T.C.A., Probate Code § 352 (1956). She sought a declaratory judgment to that effect and a perpetual injunction preventing Roy and Don, in their capacities as independent executors, from selling the shares of stock to the corporations.

After a hearing without the intervention of a jury, the trial court rendered a declaratory judgment decreeing that the proposed sales, if consummated, would violate Y.T. C.A., Probate Code § 352, which, in part, reads:

The personal representative of an estate shall not become the purchaser, directly or indirectly, of any property of the estate sold by him, or by any co-representative if one be acting.

Finding that Shelley had no adequate remedy at law, the court perpetually enjoined Roy and Don, as independent executors of the estate of Roy Furr, from

selling or transferring to Furr’s, Inc., Furr’s Realty Company and/or Furr’s Cafeterias, Inc., any of the property belonging to the Estate of Roy Furr, Deceased, so long as they are an officer, director or stockholders of such corporation that is purchasing such property or redeeming such stock unless Plaintiff [Shelley] consents in writing to such sale or redemption by Furr’s, Inc., Purr’s Realty Company and/or Furr’s Cafeterias, Inc. of the property or capital stock or such corporation belonging to the Estate of Roy Furr, Deceased.

Executors Roy and Don have appealed, presenting twenty-seven points of error. In the first two of these, they urge that the court erroneously enjoined the proposed sale because (1) Roy and Don do not own, either individually or jointly, a controlling interest in any of the purchasing corporations, and (2) neither Roy nor Don participated in the purchasing corporations’ decisions to redeem the stock.

The prohibition stated in V.T.C.A., Probate Code § 352 is the statutory expression of the general rule that an executor or administrator may not purchase at his own sale property in the decedent’s estate, 31 Am.Jur.2d, Executors and Administrators, § 383, which appertains in the United States and in the British Empire. 21 Am. Jur., Executors and Administrators, § 622. The statute implicitly recognizes that an independent executor, occupying the position of fiduciary in relation to the estate, must be possessed of an independent and impartial judgment as to the advisability of selling assets of the estate and, if it be advisable, in determining the price at which to sell. It seeks to avoid the possibility of fraud and the temptation of self-interest. See 105 A.L.R. 450 and authorities therein cited. The same rationale was expressed by the Supreme Court in Southern Trust & Mortgage Co. v. Daniel, 143 Tex. 321, 184 S.W.2d 465, 466-67 (1944), in disapproving a trustee’s public sale of land described in the deed of trust to a corporation of which he was an officer, director and stockholder, by this language:

It cannot be said that the trustee might not have sought and obtained a much higher bid from the corporation itself had he not been one of its officials. As an officer of the corporation the temptation to make an advantageous purchase of the property would be as great as¡ if not greater than, it would were he purchasing from himself individually.
. The opportunity for conflict between interest and duty is the vicious ingredient. The presence of the opportunity in this case is too unmistakable and certain to overlook.
* * * # * *
. (W)hat we decline to approve is a practice which affords an opportunity • for and creates a temptation to disloyalty. Were that practice given the approval of this court, then instances of disloyalty could rise under circumstances in which it would be impossible to make proof thereof. That consideration affords sufficient grounds for condemning the practice altogether.

The statutory prohibition against self-dealing announced by § 352 of the Probate Code is clear and unambiguous and does not provide for any exception of its terms. 7-Up Bottling Company of Austin, Inc. v. Capital National Bank in Austin, 505 S.W.2d 624, 627 (Tex.Civ.App. — Austin 1974, writ ref’d n.r.e.). In 7-Up, the individual who was coindependent executor with a bank and who also was an officer, director and stockholder of a corporation which exercised its option to buy the decedent’s stock in the corporation was said by the court to be purchasing, directly or indirectly, property of the estate sold by him. The dual relationship, irrespective of the equities pleaded and raised, fell within the prohibition of V.T.C.A., Probate Code § 352.

Similarly, the provisions of the statute prohibiting the guardian from purchasing his ward’s property are mandatory and admit of no exceptions whatever. Wall v. Wall, 172 S.W.2d 181, 185 (Tex.Civ.App.— Amarillo 1943, writ ref’d w.o.m.). By extension of that statute, the next friend cannot purchase a minor’s property in a court ordered sale. Mitchell v. Thompson, 292 S.W. 862, 863 (Tex.Comm’n App.1927, holding approved).

Beyond that, the trial court found that Roy and Don successfully control and manage the corporations and would control the corporations redeeming the shares of stock. By their fourteenth point of error, executors Roy and Don attack these factual findings as immaterial and irrelevant, not supported by the evidence, and against the great weight and preponderance of the evidence. However, other than a statement that Roy and Don are minority stockholders, there is no record referenced statement of the facts directed to the point or a discussion of the facts and authorities relied upon as required by Rule 418(c), Texas Rules of Civil Procedure, to maintain the point. In the Matter of D_R_ D_, 537 S.W.2d 133, 134 (Tex.Civ.App. —Amarillo 1976, no writ). Where, as here, Rule 418(c), T.R.C.P., is not complied with, this court has no duty to independently search the 1,020 pages of the statement of facts to ascertain if the point of error has merit. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 200-01 (1955). We do state, however, that from our review of this record, including sixty-six exhibits in addition to the 1,020 page statement of facts, in connection with the appeal, we cannot say, with due regard for the trial court’s prerogative in assessing the evidence, that these findings are so against the great weight and preponderance as to be manifestly wrong and unjust.

Given these principles and these findings of fact, the trial court correctly determined that under the circumstances where the executors’ proposed sales of the estate’s shares of stock, in the form of stock redemption, to corporations which the executors control and manage in their capacities as officers, directors and stockholders are sales prohibited by V.T.C.A., Probate Code § 352, regardless of whether or not the executors, individually or jointly, own a controlling interest in the corporations or participated in the corporations’ decisions to redeem the stock. Points one, two and fourteen are overruled.

The third point is that the proposed stock redemption, even if a direct or indirect sale to Roy and Don in violation of § 352 of the Probate Code, is nevertheless permissible because authorized by the decedent’s will. Executors Roy and Don argue that because their father’s will grants the trustees of testamentary trusts created therein all of the powers and rights of owners in fee of the trust estates and grants the executors the same rights, powers, privileges, discretions, duties and responsibilities as are conferred upon the trustees under the will, the executors are, therefore, authorized to make direct or indirect sales to themselves. Cited as authority for the argument is the In re Wallace’s Estate, 299 Pa. 333, 149 A. 473, 475 (1930), holding that the rule forbidding purchase by an executor at his own sale does not apply where the will specifically authorizes the purchase, and the Curtis v. Brewer, 140 Mich. 139, 103 N.W. 579, 582 (1905), statement that this has been held to be so even where such purchase is forbidden by statute.

The argument loses its persuasiveness when the will of Roy Purr is read in the light of the Texas Trust Act of 1943, Vernon’s Ann.Civ.St. art. 7425b-l et seq. (1960). Section 12 of the Act has the restrictions that

A trustee shall not buy nor sell, either directly or indirectly, any property owned by or belonging to the trust estate, from or to itself or an affiliate; ... or from or to himself, a relative, employer or other business associate;

Section 22 of the same Act authorizes the trustor to insert provisions in the trust instrument to relieve the trustee from any of the duties, restrictions and liabilities which are otherwise imposed on the trustee by the Act.

The trustees’ testamentary grant of powers and rights to which executors Roy and Don refer are those contained in the will’s provisions for separate trusts to benefit the lawful issue of Roy, Don and Shelley if they, or any of them, be deceased at Roy Purr’s death. Although these trusts never became effective, they contain provisions granting the trustees of each trust broad powers of management which, consistent with the grant, were to be exercised as if the trustees “were the owner in fee simple of both the legal and equitable title of such trust estates.” The will then provides that the independent executors or executrix are granted, in addition to the usual rights, powers and duties of an independent executor, “the same rights, powers, privileges, discretions, duties and responsibilities as are conferred upon the Trustees.”

Yet, the language of the will itself does not go so far as to negate the restrictions in Section 12 of the Trust Act by specifically authorizing the trustees to purchase for themselves, either directly or indirectly, any properties of the trusts. The expression that the powers of management were to be exercised as if the trustees were the owner in fee simple amounts to no more than a direction that the powers actually granted were to be unfettered. Consequently, the executors, who were empowered with only the same general authority granted the trustees, derived no authorization from that general authority to make a sale of the estate’s property to themselves, either directly or indirectly. This generality is far different from the express authorization in the will in Curtis v. Brewer, supra, on which executors Roy and Don rely, for a sale of the estate’s land to any one of the executors or executrix who may desire to purchase. An analogy may be drawn from the situation arising in Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945), before enactment of the Texas Trust Act. There, the grant to the trustees of broad powers of management similar to those in the case at bar did not justify some of the trustees’ profitable self-dealing in the trust’s properties, the Supreme Court saying that a trustee is prohibited from placing himself in any position where his self interest will or may conflict with his obligations as trustee, even though he may have acted in good faith and the beneficiary suffered no damage. 187 S.W.2d at 388-89.

Thus, the trial court correctly concluded that the general grant of powers was not specific enough to authorize either a direct or an indirect sale to the executors which is otherwise prohibited by V.T.C.A., Probate Code § 352. The third point is overruled.

The fourth- and fifth-point contention is that the court erred in enjoining the redemption of stock because Shelley has an adequate remedy at law for monetary damages, if any. Thereunder, it is argued that if it be assumed the sale be improper, the only damage which Shelley could sustain would be monetary damage in the event the sale would be for less than the fair market value of the stock.

To state the contention, particularly as it is argued, is to refute it. It erroneously presupposes the legal right, absent the injunction issued ancillary to the declaratory judgment, to proceed with a sale which has been declared violative of a statute. It is precisely for this reason that V.A.C.S. art. 4642, § 1, declares that an injunction may be granted “(w)here the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.” In that event, the equitable requirement to show there exists no adequate remedy at law is inapplicable, for the statutory right to the writ is clear without such showing. Republic Ins. Co. v. O’Donnell Motor Co., 289 S.W. 1064, 1066 (Tex.Civ.App. — Dallas 1926, no writ). The fourth and fifth points are overruled.

There is sought, by points six and seven, the invocation of the “clean hands” doctrine to avoid the injunction. The premise is that the evidence establishes that Shelley’s actions preceding and culminating in the filing of this suit were to force a purchase of her stock at a premium and in derogation of her duties as an executor to liquidate the estate’s debts. The imposition of the doctrine must fail for two reasons.

First, the “clean hands” maxim is strictly an equitable doctrine not applicable outside equitable proceedings. Greever v. Persky, 156 S.W.2d 566, 569 (Tex.Civ.App.— Fort Worth 1941), aff’d 140 Tex. 64, 165 S.W.2d 709 (1942). The injunctive relief was ancillary to a declaration of the invalidity of the impending stock sale in a declaratory judgment action, which is neither legal nor equitable but is sui generis. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 713 (1945). And, equally important, the injunction has a statutory foundation, as we have just noted.

Second, although the points of error proceed from the statement that the evidence establishes the fact of unclean hands, the question whether Shelley came into court with clean hands was a disputed issue. The court, judging the credibility of the witnesses and the weight to be given their testimony, found that “ . . . in the events that led to the filing of this lawsuit and in filing and prosecuting this lawsuit, Plaintiff [Shelley] has not been guilty of any wrongful conduct.” There is challenged, in point twenty-two, the sufficiency of the evidence to support the finding, and embedded in point twenty-three among six other separate and distinct legal reasons why the executors “object and except to the conclusions of law filed herein by the Court” is a statement that under the evidence, Shelley did not come into a court of equity with clean hands.

Obviously, the latter point is multifarious. Recently, in noting that a point of error is multifarious when it embraces more than one specific ground of error or when it attempts to attack several distinct and alleged errors or rulings of the trial court, we held that unless the multifarious point involves only a single legal question, it is not entitled to consideration. American Biomedical Corporation v. Anderson, 546 S.W.2d 112, 115 (Tex.Civ.App.—Amarillo 1977, no writ). So, here, the statement concerning the lack of clean hands is not entitled to consideration.

Under point twenty-two, it is argued, for the conclusion that Shelley filed this suit to force a purchase of her stock at a premium in derogation of her duty as an executor to liquidate the estate’s debts, that she admitted she would do nothing in settlement of the estate unless a partnership agreement was signed or unless her personal stock in the companies was bought. Con-trastively, there was Shelley’s testimony that she was following the advice of counsel not to agree to any restructuring which would provide no consideration to her as a beneficiary. The trial court had the responsibility to resolve the conflicts and inconsistencies in the testimony to gauge the efficacy of the evidence. When it is considered that Shelley was objecting to a proposal statutorily violative of an executor’s standard of conduct, we cannot say that the court’s finding of the disputed fact was against the great weight and preponderance of the evidence.

Thus, we become bound by the court’s finding that Shelley has not been guilty of any wrongful conduct, a finding which prevents the invocation of the “clean hands” doctrine. Points six, seven and twenty-two are overruled.

In their eighth and ninth points, executors Roy and Don urge the trial court erred in enjoining the redemption of stock because under the doctrine of balancing the equities there is a much greater probability (even certainty) of damage to the estate if the writ is granted than there would be to Shelley if the injunction were denied. The points of error must be overruled because the equitable doctrine of balancing of the equities—i. e., weighing the relative convenience and inconvenience and the comparative injuries to the parties which would result from the granting or refusal of the injunction sought—does not apply in the case at bar. It has been determined that the executors do not have the right to consummate the proposed redemption, and no one can complain that he is injured by being prevented from doing that which he has no right to do. See 42 Am.Jur.2d, Injunctions, § 60 at 804.

The gist of the tenth and eleventh points is that Shelley waived her right to complain of the proposed stock redemption by failing to object to the proposal at various meetings with Roy and Don at which the debts and assets of their father’s estate and the method of payment of the debts were discussed. The evidence is that at one meeting shortly after Roy Furr’s death on 13 June 1975, and at two others on 5 and 28 August 1975, the latter attended by Shelley’s attorney, it was discussed that sales to and redemption by the corporations of the stock was the only feasible method of raising funds necessary to pay the debts, and Shelley made no objection. Her first objection to the proposed stock redemption was in the first part of October, 1975. It is this evidence that is said to constitute waiver.

Assuming, arguendo, that the right of persons interested in an estate to complain of self-dealing prohibited by V.T. C.A., Probate Code § 352, can be waived, it is well established that waiver must be of a known right, Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652, 656 (1947), and that there must be an intentional relinquishment of such known right or intentional conduct inconsistent with claiming it. Flagg Realtors, Inc. v. Harvel, 509 S.W.2d 885, 890 (Tex.Civ.App. — Amarillo 1974, writ ref’d n.r.e.). While it is true that silence may indicate an intention to act in a certain manner, such silence or inaction must be coupled with knowledge of the right and with other circumstances, such as inaction for an unreasonable period of time, which evidence the intention to waive. Self v. Kinder, 474 S.W.2d 632, 634 (Tex.Civ.App.— San Antonio 1971, writ ref’d n.r.e.).

Notwithstanding, the trial court found that (a) the evidence does not establish waiver because Shelley’s silence and failure to protest does not appear to have lasted until the proposed final plan of redemption was formulated, and that (b) Shelley never, by words or conduct, affirmatively manifested an intention to relinquish any right she had to object to the proposed sales. These findings are subjected to the assertions in the seventeenth and nineteenth points that they are not supported by the evidence and are against the great weight and preponderance of the evidence.

Within the evidence is testimony that during the first two meetings with her brothers, Shelley understood the proposed plan of stock redemption as only a proposal which was vaguely discussed and of which she understood very little, and was embarrassed at not knowing what was going on. She testified in regard to the 28 August 1975 meeting that, although she did not raise any opposition to the proposal at that time because she “believed that what they were doing was investigating the possibilities and moving ahead in their investigation,” she did not agree to the proposal. Further, after the first two meetings, Shelley decided that she needed counsel and employed counsel who raised alternate proposals. There is no testimony that Shelley knew, at any time before her October, 1975 objection, of her right under V.T.C.A., Probate Code § 352, to complain of the .proposed stock redemption.

It was the province of the trial court to credit the evidence that neither Shelley’s words nor her conduct proved that she knowingly and intentionally relinquished her right to complain of the proposed redemption plan. Points ten, eleven, seventeen and nineteen are overruled.

The first segment of the twelfth point is a complaint that the trial court abused its discretion in permitting Shelley to file her amended petition seeking, in addition to the perpetual injunction first pleaded on 13 November 1975, a declaratory judgment. While executors Roy and Don objected to the amended petition offered for filing on 22 March 1976, the day hearing on the application for permanent injunction resumed after a hearing almost three months earlier, they neither contended at the time of trial nor claim on appeal that such amendment operated as a surprise to them or that they requested and were denied a continuance. On the contrary, they contend that “no excuse whatsoever was even offered by plaintiff for the filing of an amended pleading on the date of the trial, and there was no showing whatsoever that plaintiff even attempted to comply with or that there was any reason why plaintiff could not comply with Rule 63, T.R.C.P., requiring the filing of a trial amendment at least seven days prior to trial.” Cited are authorities holding that the trial court properly denied a request for leave to file an amended pleading where there was no showing of an attempt to comply with Rule 63, T.R.C.P.

At the outset, we note that notice of application to amend was given Roy and Don and that Shelley requested and received leave of the trial court before filing her first amended petition. The amendment had little potentiality for surprise as it did not substitute new parties, theories of recovery or grounds of defense. Rule 63, T.R.C.P., permits the amendment of pleadings at such times as not to operate as a surprise to the opposite party and within seven days of the date of trial with leave of the court, which leave shall be granted unless there is a showing that such amendment will operate as a surprise to the opposite party. There being compliance with the rule and no claim, much less showing, of surprise, there was no abuse of the court’s discretion in granting leave to amend, and we are not authorized to set the order aside. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, 609 (1948).

The other facet of the twelfth point is that declaratory relief is not appropriate in the case at bar because in another cause pending at the time of the filing of the declaratory proceedings, Shelley and her husband were opposing the merger of Farm Pac Kitchens, Inc., and Furr’s Realty Company, and were seeking a determination of the fair market value of the stock therein. Thereunder, it is alleged that the pending suit and the cáse at bar involve many of the same issues.

As a general rule, an action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another cause between the same parties and in which the same issues may be adjudicated. Texas Liquor Control Board v. Canyon Creek Land Corporation, 456 S.W.2d 891, 895 (Tex.1970). The rule has not been shown to be applicable here, for, though we may speculate, the record we review does not show to us, or that the trial court was informed, that the same parties are involved in the two proceedings and that the adjudication of the grounds of Shelley’s opposition to the merger will adjudicate the ultimate issues in the case at bar. The twelfth point is overruled.

Points thirteen, fifteen, sixteen, eighteen, and twenty through twenty-three were drafted to challenge other findings of fact not previously designated as such. Although practically all of these points verge on or contain the vice of multifariousness present in point twenty-three, they have been considered. We agree with the executors’ appraisal that the findings challenged are immaterial to the resolution of the issues dispositive of this appeal. Neither the sustaining nor the overruling of any or all of the points would affect the judgment rendered. For this reason and in the interest of brevity, any further discussion of the points is pretermitted.

Presented by points twenty-four through twenty-seven are the complaints about the court’s refusal to make additional findings of fact requested by the executors. The requested findings are either on immaterial matters that would not affect the judgment or are in conflict with the original factual findings we have upheld. Pertinent here is the rule that where additional requested findings of fact do not relate to the ultimate or controlling issues or would conflict with the original findings, they need not be made. Friedman v. Cohen, 429 S.W.2d 510, 512 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n.r.e.). The points are overruled.

Whether particularly mentioned or not, all details presented in this appeal have been reviewed and considered in our disposition. After consideration, we find no reversible error attending the rendition of the trial court’s judgment.

The judgment is affirmed.

ROBINSON, J., not sitting.


text:
    In the Matter of the ESTATE of Roy FURR, Deceased.
    No. 8836.
    Court of Civil Appeals of Texas, Amarillo.
    June 30, 1977.
    Rehearing Denied July 25, 1977.
    McGinnis, Lochridge & Kilgore, Morgan Hunter, Austin, McCleskey, Harriger, Bra-zill & Graf, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, James H. Milam, and Cecil C. Kuhne Jr., Lubbock, for appellees.
   REYNOLDS, Justice.

The trial court, upon application of the surviving wife authorized by V.T.C.A., Probate Code § 385 (1956), and the court’s approval of her corporate surety bond, summarily decreed a partition of the community estate into two equal moieties despite the contestant’s pleading that partitioning controlling blocks of corporate shares of stock into halves containing the same number of shares involves a fact issue whether the sum of the halves equals the value of the whole. Affirmed.

Roy Furr died testate on 13 June 1975, survived by his wife, Lela Rosellen Furr, and their three children, Roy K. Furr, Don G. Furr and Rose Shelley Furr Hall. Upon the declination by Mrs. Furr to qualify as the named independent executrix, the three children, Roy, Don and Shelley, qualified as the independent executors and executrix conditionally named in the will.

According to the filed inventory, ap-praisement and list of claims for Roy Furr’s estate, Mr. and Mrs. Furr had accumulated a community estate with assets exceeding $7,000,000, over $6,000,000 of which consisted of shares of stock in various corporations, some of which were family controlled. Community debts approached $5,000,000, and problems developed with respect to proposals to liquidate the debts. The proposal of executors Roy and Don that certain shares of stock be redeemed from the estate by the issuing corporations to generate cash to pay the debts was objected to by executrix Shelley. The executors’ proposal was declared violative of V.T.C.A., Probate Code § 352 (1956), and enjoined by the district court. That judgment was affirmed this day. Roy K. Furr and Don G. Furr v. Shelley Furr Hall, 553 S.W.2d 666 (Tex.Civ.App. — Amarillo, 1977).

Between the hearing and the entry of judgment in that proceeding, Mrs. Lela Ro-sellen Furr applied to the probate court for a partition of the community property pursuant to V.T.C.A., Probate Code § 385 (1956). Citations issued to the executors and executrix. Executors Roy and Don answered, admitting Mrs. Furr’s right to one-half of the community property upon her compliance with the Probate Code provisions. Executrix Shelley contested the application for partition by a general denial and, upon her motion, the proceedings were transferred to the district court. There, Mrs. Furr, complying with the requirement of § 385,r filed a corporate surety bond in the amount of $3,462,931.55, which was approved by the court.

Following the submission of interrogatories to and response by Mrs. Furr, Shelley amended her contest by alleging, among other matters, that all of the stockholdings of the community in Furr’s, Inc., Furr Realty Company, Crone Oil Company and Ca-prock Toys, Inc., are not capable of a fair and equal partition and distribution. She sought the appointment of a receiver, in place of the co-executors, to sell the shares of stock to pay the debts, taxes and expenses. Depositions were taken.

Mrs. Furr moved, on the strength of the pleadings and exhibits from the probate proceedings in the estate of Roy Furr showing the applicability of § 385, for summary judgment. Shelley again amended her contest and request for the appointment of a receiver. By her amended pleadings it was alleged, together with other matters, that the community shareholdings in Furr’s Inc., in Furr Realty Company, in Crone Oil Company and in Caprock Toys, Inc., are not capable of a fair and equal partition and distribution in kind because: (1) the community shareholdings are sufficient to allow the owner or owners to control each corporation; (2) the shares can be sold as a single unit at their fair market value, but if a division in kind of the shares is made, the value of the two groups of shares would not equal the value of the shares sold in one unit; and (3) the two groups of shares would not be of equal value, even though equal in number, since only one group of the shares would be needed for control when combined with shares held by individuals not parties to this suit.

Hearing the motion for summary judgment, the trial court, after reciting that

it having been agreed and stipulated that the community or separate character of each item of property listed in the inventory is correctly shown in the inventory and that all items of community property so shown should and could be partitioned in kind, SAVE AND EXCEPT, the stock (both voting and nonvoting) in FURR’S INC., FURR’S REALTY COMPANY, CRONE OIL COMPANY, and CAPROCK TOYS, INC.; . .

found that there is no genuine issue of any material fact and that Mrs. Furr is entitled to judgment as a matter of law.

The court decreed that all of the community property shown in the inventory, ap-praisement and list of claims, a copy of which was attached to the judgment, be, and is,

partitioned into two equal moieties (each moiety shall contain exactly V2 of all corporate stock and cash, and an undivided ½ interest in all other items of community property) . .

Shelley appeals. Her basic contention is that, because a control block of corporate stock is not divisible in kind as a matter of law, the summary judgment denied her a trial on the “fair and equal” issue of fact required to be resolved by the applicability of § 381.

Partition of community property is authorized by § 385 in these words:

(a) Application for Partition. When a husband or wife shall die leaving any community property, the survivor may, at any time after letters testamentary or of administration have been granted, and an inventory, appraisement, and list of claims of the estate have been returned, make application in writing to the court which granted such letters for a partition of such community property.
(b) Bond and Action of the Court. The survivor shall execute and deliver to the judge of said court a bond with a corporate surety or two or more good and sufficient personal sureties, payable to and approved by said judge, for an amount equal to the value of the surviv- or’s interest in such community property, conditioned for the payment of one-half of all debts existing against such community property, and the court shall proceed to make a partition of said community property into two equal moieties, one to be delivered to the survivor and the other to the executor or administrator of the deceased. The provisions of this Code respecting the partition and distribution of estates shall apply to such partition so far as the same are applicable. (Emphasis supplied.)
(c)Lien Upon Property Delivered. Whenever such partition is made, a lien shall exist upon the property delivered to the survivor to secure the payment of the aforementioned bond; and any creditor of said community estate may sue in his own name on such bond, and shall have judgment thereon for one-half of such debt as he shall establish, and for the other one-half he shall be entitled to be* paid by the executor or administrator of the deceased.

Shelley asserts that the italicized last sentence of § 385(b) invokes the application of § 381, which pertains to partition and distribution of estates and makes, so Shelley argues from cases concerned only with partition of real property, the inquiry whether the assets in controversy are or are not “capable of fair and equal division” in kind a fact issue for the jury. The first two sub-sections of § 381, which Shelley contends are relevant, read:

(a) Finding by the Court. When, in the opinion of the court, the whole or any portion of an estate is not capable of a fair and equal partition and distribution, the court shall make a special finding in writing, specifying therein the property incapable of division.
(b) Order of Sale. When the court has found that the whole or any portion of the estate is not capable of fair and equal division, it shall order a sale of all property which it has found not to be capable of such division. Such sale shall be made by the executor or administrator in the same manner as when sales of real estate are made for the purpose of satisfying debts of the estate, and the proceeds of such sale, when collected, shall be distributed by the court among those entitled thereto.

It is at once obvious that § 381 is inoperable unless the court has made “a special finding in writing” of the fact that all or a part of the estate cannot be fairly and equally partitioned and distributed. Equally obvious from the rendition of summary judgment in the § 385 proceedings is that the court did not make the fact finding necessary to invoke § 381. But that begs the question, for findings of fact have no place in a summary judgment proceeding, the only issue being whether or not there is a genuine issue of material fact in the case. Reynolds v. Park, 521 S.W.2d 300, 307 (Tex.Civ.App. — Amarillo 1975, writ ref’d n. r. e.). The actual query, then, must be whether the summary judgment proof established as a matter of law that there is no material issue of fact concerning the essential elements of Mrs. Furr’s claim to partition under § 385; otherwise, she would not be entitled to summary judgment. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970).

For the partition, the mandate of § 385 is “two equal moieties.” If unambiguous, the statutorily undefined words are to be given their ordinary meaning, Winder v. King, 1 S.W.2d 587, 590 (Tex.Com.App. 1928), and every word is to be given effect if reasonable and possible, Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963), unless the intent of the legislature manifested by the statute requires the meaning to be restricted or enlarged to give effect to that intent. Lunsford v. City of Bryan, 156 Tex. 520, 297 S.W.2d 115, 117 (1957). However, if the language of the statute creates an ambigui ty, we must look beyond the terms to discover the legislative intent. Huntsville Independent School District v. McAdams, 148 Tex. 120, 221 S.W.2d 546, 547 (1949).

In Webster’s New International Dictionary (2nd Ed.), the first definition given for “equal” is “(e)xactly the same in measure or amount, however regarded; alike or identical in magnitude, quantity, number or degree.” The second definition is “(1 )ike in value, quality, . . . ; neither inferior nor superior; equivalent.” The word “moiety” means “(t)he half of anything,” Black’s Law Dictionary, Fourth Edition, or “one-half,” which may be referenced to the half of the property which the testator owned. Sutton v. Harvey, 24 Tex.Civ.App. 26, 57 S.W. 879, 881 (Tex.Civ.App.1900), writ dism’d 94 Tex. 79, 58 S.W. 833 (1900).

Thus, it is argued here, in effect, that the phrase “two equal moieties” means, by the first definition for which Mrs. Furr contends, one-half of the total number of shares of stock in each corporation; or, that it means, by the second definition for which Shelley contends, that, for partition under § 385, each half of the shares must be alike in value which, because the corporate control aspect affects the values, cannot be achieved as a matter of law by partitioning them into two parts of like number, but is a fact issue under § 381. Readily apparent is the potentiality for ambiguity by definition; however, because of the circumstances of this cause, it is not necessary that we resort to aids in statutory construction to determine which, if either, of the contentions is the valid one.

The summary judgment proof contains the inventory, appraisement and list of claims filed for Roy Furr’s estate. It was stipulated that the community property is correctly shown therein. The instrument enumerates the number and the value of all the shares of stock in each corporation. From this it is mathematically ascertainable, in the absence of any contrary summary judgment evidence, that the value of one share of stock of a given corporation is equal to that of any other share of stock in the corporation. It becomes a mere matter of calculation to determine and divide the total number of shares of stock into two parts having the same number of shares and the same value. At this point, under each definition of “equal” in the phrase “into two equal moieties,” Mrs. Furr had discharged her burden to establish that there was no genuine issue of material fact standing in the way of partition under § 385, and that she was entitled to judgment for partition as a matter of law.

As noted, Shelley did, by unverified pleadings, plead that, because of the corporate control aspect, one-half of the total number of shares of stock would not be equal in value to the other one-half. Pleadings simply outline the issues, and since Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971), pleadings, even if sworn to, “are not evidence, even for summary judgment purposes.” 462 S.W.2d 543.

Consequently, if Shelley’s pleadings be construed as involving no affirmative defense, Mrs. Furr was entitled to the summary judgment when her summary judgment proof established that there was no issue of fact with respect to the truth of every element under § 385 essential to her recovery. 4 McDonald, Texas Civil Practice § 17.26.2, p. 132 (1971). If it be considered, because Shelley argues that she did affirmatively plead the matter of value, that the issue of value was pleaded in avoidance of Mrs. Furr’s right to partition under § 385, then Shelley was required, when Mrs. Furr established her right to judgment under § 385, to come forward with summary judgment proof that raised a fact issue of the affirmative defense pleaded. Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1959). No summary judgment proof bearing on the issue of the value of the shares of stock with respect to corporate control is in the record we review.

Because Mrs. Furr established her right to the summary judgment as a matter of law, we do not notice either her cross-point for dismissal of the appeal or Shelley’s two points of error directed to the matters on which the cross-point is predicated.

The judgment is affirmed.

ROBINSON, J., not sitting.

       All citations of sections refer to the sections appearing in V.T.C.A., Probate Code (1956).


author: JAMES, Justice.

text:
    Guy SPARKMAN, Appellant, v. PEOPLES NATIONAL BANK OF TYLER, Appellee.
    No. 5710.
    Court of Civil Appeals of Texas, Waco.
    June 30, 1977.
    Rehearing Denied July 28, 1977.

      Guy Sparkman, pro se.
    Charles F. Potter, Potter, Guinn, Minton & Dickerson, Tyler, for appellee.
   OPINION

JAMES, Justice.

This is a suit for an equitable bill of review. Appellant Guy Sparkman brought this action to set aside and retry cause Number 72-160 in the 114th District Court of Smith County, wherein a summary judgment had been granted that Sparkman take nothing against Peoples National Bank of Tyler and others. This summary judgment was affirmed by the Court of Civil Appeals, and writ of error was refused, “no reversible error” by the Supreme Court of Texas. See Sparkman v. Peoples National Bank of Tyler (Tyler Tex.Civ.App.1973), 501 S.W.2d 739, NRE.

In the case at bar, this appeal is from an order of the trial court sustaining Defendant-Appellee’s special exceptions to Plaintiff-Appellant’s First Amended Original Petition and dismissing the case. The record contains no statement of facts.

Plaintiff-Appellant asserts the trial court erred (1) in not recusing himself from the ease after Plaintiff had filed a motion that he do so, (2) in sustaining Defendant’s special exceptions, and (3) in dismissing the case and not allowing Plaintiff to amend, which last-named action assertedly constituted an abuse of discretion. We overrule all of Plaintiff-Appellant’s points of error and affirm.

The Plaintiff’s Original Petition for Bill of Review was filed on May 28, 1976, against which the Defendant levelled a number of special exceptions, to the effect that Plaintiff’s pleadings constituted conclusions as opposed to facts. After hearing, the trial court sustained all of the Defendant’s special exceptions and granted Plaintiff leave to amend. Thereafter, on July 13, 1976, Plaintiff filed his First Amended Original Petition, against which the Defendant levelled special exceptions, again to the effect that Plaintiff’s pleadings constituted conclusions as opposed to facts. The trial court held a hearing on this last group of special exceptions on September 9, 1976, and on said last-named date Plaintiff Sparkman filed a motion requesting the trial judge to recuse himself from the case. Then on October 6, 1976, the trial court entered an order wherein it sustained all of Defendant’s special exceptions and dismissed Plaintiff’s suit, which order contains the following recitals:

“Considering that defendant duly presented exceptions to Plaintiff’s Original Petition for Bill of Review which were sustained, and that said exceptions covered substantially the same subject matter, that plaintiff was given leave to amend and he did file his amendment, and that the exceptions to the original petition are similar to the exceptions to the First Amended Petition; and considering the announcements made in court by plaintiff pro se, the court finds that the case should be dismissed rather than allow leave for further amendment.”

We revert to Appellant’s first point. Under this record, we cannot say the trial court erred in not recusing himself from the case in response to Plaintiff’s Motion. It is presumed that the trial judge is qualified until evidence is offered to the contrary. Quarles v. Smith (Houston 1st Tex.Civ.App.1964), 379 S.W.2d 91, 92, NRE; 33 Tex.Jur.2d “Judges,” par. 61, pp. 435, 436. Without a statement of facts, there is nothing before this Court upon which to base an opinion as to the asserted disqualification of the judge. See Blakeney v. Johnson County (San Antonio Tex.Civ.App. 1923), 253 S.W. 333, 335, error dismissed. This being true, the presumption of qualification of the judge prevails. Appellant’s first point is therefore overruled.

Moreover, the trial court did not err in sustaining Defendant’s second group of special exceptions and dismissing Plaintiff’s case. As hereinbefore stated, Plaintiff filed his Original Petition, to which Defendant’s special exceptions were sustained, and Plaintiff was given leave to amend. Then Plaintiff filed his First Amended Original Petition, against which Defendant again filed special exceptions. Plaintiff’s second attempt to plead his case was subject to the same deficiency as his first attempt; namely, that it consisted of conclusions as opposed to facts. In the order sustaining this second group of special exceptions and dismissing the case, the trial court recited: “considering the announcements made in court by plaintiff pro se, the court finds that the case should be dismissed rather than allow leave for further amendment.” Again, without a statement of facts, we have no way of knowing what announcements the Plaintiff made in court. In this state of the record, we can only conclude that the trial court was justified in doing what he did.

It has been held that where no reasonable probability appears that further amendment would disclose facts legally sufficient to sustain Plaintiff’s cause of action, the trial court on sustaining special exceptions has a right to refuse further leave to amend and can dismiss. City of Fort Worth v. Gilliland (Tex.Com.App.1943), 140 Tex. 616, 169 S.W.2d 149, opinion adopted; De Cato v. Krebs Construction, Inc. (Waco Tex.Civ.App.1966), 410 S.W.2d 806, NRE. In our opinion, the rule announced in Gilliland and De Cato applies to the case at bar.

All of Appellant’s points and contentions have been carefully considered, and are respectfully overruled. Judgment of the trial court is accordingly affirmed.

AFFIRMED.