author: CHADICK, Chief Justice.

text:
    In the Matter of the ESTATE of Inez N. BILLS, Deceased.
    No. 8411.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 19, 1976.
    Rehearing Denied Nov. 16, 1976.

      C. V. Flanary, Paris, for appellant.
    Hardy Moore, Paris, for appellee.
   CHADICK, Chief Justice.

This is a will probate case. An application to probate a will was filed in the County Court of Lamar County and thereafter transferred pursuant to Texas Probate Code, Section 5(b) to the Sixth District Court of that County. On motion of a contestant, the District Court dismissed the application. The judgment of the trial court is reversed and the case remanded.

1

James M. Bills, alleged to be a resident of Lamar County, Texas, and only child of Inez N. Bills, deceased, instituted an application to probate as the will of such decedent a document dated December 12, 1969, alleging he was appointed executor therein and was sole beneficiary thereunder. The sufficiency, as to form, of the application is not questioned. H. E. Neblett, alleged to be a brother of the decedent, and a resident of Cross County, Arkansas, filed a sworn motion to dismiss the Lamar County proceedings. In its pertinent part, the Neblett motion is as follows:

“I. This Court does not have jurisdiction, but instead the Probate Court of Cross County, Arkansas, where a later will has been probated on application duly made, has jurisdiction to determine what is the true last will and testament of Inez N. Bills, deceased; and the courts of Texas will defer to the Arkansas court in a spirit of comity.
II. The question of jurisdiction is also to be determined by the court first acquiring jurisdiction, which in this instance was the Probate Court of Cross County, Arkansas.
III. An application has been filed in this Court to probate as the last will of Inez N. Bills, deceased, a carbon copy of a purported will dated December 12, 1969; said purported will of December 12, 1969, was revoked by the decedent, and is not her last will and testament.
WHEREFORE, contestant prays that the application to probate herein filed be dismissed, and alternatively that it be denied; and contestant prays for costs of suit and general relief.”

At a hearing on the motion to dismiss the parties introduced an exemplified transcript of all papers from the Probate Court of Cross County, Arkansas. The papers introduced by contestant Neblett were “inclusive of a Petition for Probate of a Will and Appointment of Personal Representative, Order, Acceptance of Appointment as Personal Representative, Letters Testamentary and Authentication by Probate Clerk and Probate Judge.” Those introduced by applicant Bills were “inclusive of Last Will and Testament of Inez N. Bills, Proof of Will, Authentication of Probaté Clerk and Probate Judge, and letter of transmittal from Hardy Moore to Mrs. Myra Nell Wilson, District Clerk, Lamar County, and letter from Hardy Moore to C. V. Flanary.” The tender of documents made by contestant Neblett was limited to “the question of jurisdiction and not to establish the truth of any allegation in any of the pleadings of the parties.”

2

Contestant Neblett argues that the trial court’s dismissal order is supported by certain principles enunciated in these cases, to-wit: Brand, Banking Commissioner et al. v. Eubank, 81 S.W.2d 1023 (Tex.Civ.App. Texarkana 1935, writ dism’d); State v. Pritchard, 236 Ind. 222, 138 N.E.2d 233 (1956); Layton v. Layton, 538 S.W.2d 642 (Tex.Civ.App. San Antonio 1976, writ action undetermined). In Brand it is shown that Mrs. Eubank, a resident of Texas, filed an equity suit against Brand and others in a Texas court to cancel a note. Her suit was subsequent in time to a suit filed by Brand and others against Mrs. Eubank in Oklahoma to recover on the same note. Apparently, defendants in each action were personally served with process in the state of suit or voluntarily appeared in the respective courts as there is no issue of lack of service or of a court's jurisdiction over a non-resident. Judge Sellers, speaking for this court, disposed of the issue before it in this language:

“. . . where a case may be brought in either of two courts, the one first acquiring jurisdiction will retain it, . this rule extends, on principle of comity, to cases brought in the courts of a sister state.”

This opinion will not be extended by a description or analysis of the other two cases; it suffices to say that the non-resident parties therein were served with process in the state where exercise of jurisdiction is at issue. Neither of the three is found to be determinative of legal issues encountered in this appeal. The factors that distinguish these cases from this on appeal will emerge in subsequent discussion.

3

In addition to an application to probate a document as the will of Mrs. Inez N. Bills, deceased, applicant, James M. Bills, plead that such decedent was domiciled in Lamar County, Texas, at the time of her death and that she died while temporarily residing in Arkansas. When raised as a jurisdictional fact in a proceeding such as this, the courts of Texas are free to determine the issue of the domicile of a testator in a local proceeding, that is, a Texas court having probate jurisdiction. Holland v. Jackson, 121 Tex. 1, 37 S.W.2d 726 (1931, opinion adopted); Barney v. Huff, 326 S.W.2d 617 (Tex.Civ.App. Austin 1959, writ ref’d n.r.e.); 17 Texas Practice (Woodward & Smith), Sec. 417. The general rule is that in a proceeding of the nature shown, domicile of a decedent may be determined in the courts of the state in which the decedent is alleged to be domiciled. Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885 (1942); Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S.Ct. 152, 61 L.Ed. 386 (1917); Loewenthal v. Mandell, 125 Fla. 685, 170 So. 169 (1936); In re Fischer’s Estate, 118 N.J.Eq. 599, 180 A. 633 (Prerog. Ct. N.J. 1935). The rule is applicable here unless applicant James M. Bills has become bound by the order of probate entered in the Probate Court of Cross County, Arkansas, as the result of the operation of the full faith and credit clause of the United States Constitution or the doctrine of res judicata or the doctrine of estoppel by record. See cases last cited.

4

Texas must give full faith and credit to the public acts, records and judicial proceedings of the State of Arkansas. United States Constitution, Art. IV, Sec. 1; 28 U.S.C., Sec. 1738; 34 Tex.Jur.2d, Judgments, Sec. 366. To be entitled to such recognition in the Texas court, the judgment of the Arkansas court must be final, valid, subsisting and conclusive on the merits of the case if again sued upon in Arkansas. 34 Tex.Jur.2d, Judgments, Sec. 368. Additionally, for the probate of a will to bind an interested non-resident, the Arkansas probate court must have acquired jurisdiction over the person of the non-resident. See authorities cited in the paragraph above.

The only Arkansas judgment in the record that appears on its face to be final, valid and subsisting is the order admitting the Inez N. Bills will to probate by the Cross County, Arkansas, Probate Court judge. The record shows that the applicant Bills was not notified of the Arkansas proceeding and took no part in it prior to entry of the order of probate contained in the record and that he did not enter an appearance or file pleadings in the Arkansas proceeding until the fifth day after the order in question was rendered. Without investigating the question as to whether, under the circumstances shown, the order of the Arkansas court is final, valid and subsisting under Arkansas law, a decision on the question of full faith and credit may be determined by the absence of jurisdiction of the person of applicant Bills. As stated, requisite jurisdiction is not shown. Texas courts are not required to give full faith and credit, so far as applicant Bills is concerned, to the Arkansas probate order.

5

The res judicata doctrine is defined in 34 Tex.Jur.2d, Judgments, Sec. 450, in this language:

“Res judicata is the doctrine that a right, question or fact, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense, cannot be disputed in a subsequent suit between the same parties or their privies.”

For the doctrine to be decisive in this case, it would have been necessary for contestant Neblett to show that the Texas proceeding was between the same parties or their privies that were parties to the Arkansas proceeding in which the order of probate was entered. This he failed to do. As previously stated, the record shows that applicant Bills was not a party to the Arkansas proceeding at or prior to the time the judgment admitting the will to probate was entered. His entry into the ease came later and the record shows that no final judgment has been entered upon his belated attempt to secure relief in the Arkansas court.

6

A party may be estopped by the record to assert a position or a right in a subsequent lawsuit which is inconsistent with a position or right assumed or asserted in a former proceeding. For a more comprehensive statement of the doctrine see 22 Tex.Jur.2d, Estoppel, Sec. 17. The record shows that applicant Bills’ pleadings in the Arkansas proceeding were consistent with the pleadings in his Texas case and contains no final judgment rendered upon the pleadings filed in Arkansas. There is no basis for denying trial of the application to probate the proffered will on this unplead ground. Barney v. Huff, supra, at p. 622.

7

To sum up, presented in this appeal is a case in which a resident of Texas, following probate of a decedent’s will in the Probate Court of Cross County, Arkansas, has applied to probate the same decedent’s different and prior will in the County Court of Lamar County, Texas, a county where it is alleged that part of decedent’s estate is located and where the decedent is alleged to have been domiciled at the time of her death. The law is settled that the Arkansas judgment of probate is in rem but has no extra-territorial effect upon assets of the decedent’s estate in Texas. Outside Arkansas the judgment is in personam and is binding only upon a Texas resident who is a party to the Arkansas probate proceedings or such party’s privy. Again, see Riley v. New York Trust Co., supra; Baker v. Baker, Eccles & Co., supra. These cases hold specifically that if the effect of the Arkansas judgment was to bar a resident of Texas, who was not a party or privy to the Arkansas judgment, from relitigating in Texas courts the issue of the decedent’s domicile, such Texas resident would be denied procedural due process.

8

In harmony with the conclusions expressed, the order of the trial court dismissing James M. Bills’ application to probate the will of Inez N. Bills, deceased, is reversed and the case remanded.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Paul CRISP, Appellant, v. Carlos Alfredo GARCIA and Guate Garcia, Appellees.
    No. 5631.
    Court of Civil Appeals of Texas, Waco.
    Oct. 21, 1976.
    Morgan A. Jones, Harris, Cook, Browning & Barker, Corpus Christi, for appellant.
    Charles Lee Barrera, Alice, for appellees.
   HALL, Justice.

Paul Crisp brought this suit against Gua-te Garcia and his son, Carlos Alfredo Garcia, for automobile damages allegedly caused in a collision between the plaintiff’s car being driven by him and Guate’s car being driven by Carlos. The plaintiff pleaded primary negligence against Carlos and negligent entrustment against Guate.

The case was tried to a jury. During the course of the trial, the plaintiff testified that the reasonable cost of repairs to his vehicle was $948.12. After the proof was closed, a dispute arose between counsel for the parties as to whether the plaintiff testified that the repairs were necessary. The court determined to submit the question of this testimony to the jury. It did so in special Issue No. 0 which asked, “Do you find from a preponderance of the evidence the Plaintiff, Paul Crisp, stated that the amount of damages was necessary?” The plaintiff’s objection to this issue on the ground that it was not an ultimate issue was overruled. The jury answered the issue, “We do not.”

Answering other special issues which were submitted without objection, the jury convicted Carlos of negligence causing the collision, convicted Guate of negligent en-trustment, failed to find the plaintiff was guilty of negligence, and found that the “reasonable cost . . . necessary to restore Paul Crisp’s vehicle to the condition in which it was immediately before the occurrence in question” is $948.12.

The plaintiff moved the court to disregard the jury’s answer to Special Issue No. 0 and render judgment for him on the verdict, again asserting the evidentiary nature of Issue No. 0. The motion was overruled. Judgment was rendered “upon the verdict” on January 26, 1976, that the plaintiff take nothing, on the basis of the jury’s answer to Issue No. 0. The plaintiff assigns error to these rulings. The defendants have not favored us with a brief.

Special Issue No. 0 did not pose a controlling fact question. It should not have been submitted to the jury. Rule 279, Vernon’s Tex.Rules Civ.Proc. It is always improper to submit to a jury questions about the evidence on which its verdict is based. Southern Surety Co. v. Adams, 119 Tex. 489, 34 S.W.2d 789, 797 (1930); City of. Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871, 876 (1949). Once submitted, Issue No. 0 should have been disregarded by the court on the motion of the plaintiff to do so; and, under the record, his motion for judgment notwithstanding the jury’s answer to the issue should have been granted. Rule 301, Vernon’s Tex.Rules Civ.Proc.; C. & R. Transport v. Campbell, 406 S.W.2d 191, 194 (Tex.Sup.1966).

The judgment is reversed. Judgment is here rendered that the plaintiff recover from the defendants, jointly and severally, the sum of $948.12, with interest on this judgment from January 26,1976. Rule 434, Vernon’s Tex.Rules Civ.Proc.


author: SPURLOCK, Justice.

text:
    Bobby D. PFEFFER, Appellant, v. Joe E. SHADDOCK et al., Appellees.
    No. 17764.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 22, 1976.

      William G. Herrmann, Harker Heights, for appellant.
    Fillmore, Lambert, Farabee, Purtle & Lee, and Larry L. Lambert, Wichita Falls, for appellee, Joe E. Shaddock.
    Joe E. Shaddock, Wichita Falls, for appel-lee, Town & Country Mobile Homes, Inc.
    Neil Clinkenbeard, Killeen, for appellee, First National Bank, Killeen, Texas.
   OPINION

SPURLOCK, Justice.

This is a suit by Bobby D. Pfeffer against Joe E. Shaddock, Town & Country Mobile Homes, Inc., and First National Bank of Killeen, for alleged wrongful garnishment. Plaintiff contends that this garnishment after judgment is wrongful because it is based on a default judgment obtained after service by publication, which judgment is void on its face for extrinsic fraud. The suit seeks to set aside the judgment and restrain the Bank from transferring any of plaintiff’s accounts during the pendency of this suit and for a money judgment against the other two defendants.

A non-jury trial resulted in a take-nothing judgment and the dissolution of a temporary injunction theretofore issued. Plaintiff appeals.

Judgment affirmed.

The facts giving rise to the proceedings are as follows: Defendant, Town & Country Mobile Homes, manufactures mobile homes. Its plant is in Wichita Falls, Texas. Prior to January, 1970, plaintiff was one of its dealers in Del Rio, Val Verde County, Texas. The original suit was brought by Town & Country Mobile Homes, Inc., hereinafter referred to as Town & Country, against Pfeffer for alleged debts incurred in connection with the business transactions had between those parties. Pfeffer as plaintiff in the second suit, filed in the same court, sued Town & Country and Shaddock, alleging, as to these two defendants, that Shaddock, the attorney of record for Town & Country, filed a false and fraudulent affidavit for citation by publication, alleging that they were unable to locate the whereabouts of Pfeffer and that he was a transient person, when in fact Town & Country and their attorney failed to discover that the sales manager for Town & Country knew the residence of Pfeffer; and this fraudulent act resulted in Pfeffer suffering a default judgment to be rendered against him.

The record reflects that after suit was filed, the following efforts were made to obtain personal service upon Pfeffer:

April 13, 1970 — Citation sent to Del Rio, Val Verde County, Texas, with letter stating Pfeffer could be served at Amistad Mobile Home Sales, 1701 Ave. F., Del Rio, Texas.

April 15, 1970 — Unserved by Sheriff. Return states Pfeffer lives in Stafford, Texas.

April 20, 1970 — Shaddock writes clerk to send citation to Mike Herron Mobile Homes, 3737 South Main, Stafford, Texas.

April 21, 1970 — Citation sent to Sheriff, Fort Bend County, Texas, advising sheriff Pfeffer could be found at Mike Herron Mobile Homes, 3737 S. Main, Stafford, Texas.

Sheriff’s return states that Pfeffer had moved to 17930 Hempstead Highway, Harris County, Texas.

August 6,1970 — Shaddock writes clerk to send citation to 17930 Hempstead Highway, Houston, Texas.

August 7, 1970 — Citation sent to Houston, Harris County, Texas, advising sheriff Pfeffer could be served at 17930 Hempstead Highway, Houston, Texas.

August 12, 1970 — Unserved by Sheriff. Return states new address 3737 S. Main, Stafford, Fort Bend County, Texas.

After the above efforts to obtain personal service on Pfeffer proved unsuccessful, Shaddock then filed on November 16, 1970, an affidavit for the issuance of citation by publication.

November 24, 1970 — Citation by publication issued.

March 24, 1971 — Default judgment was rendered against Pfeffer.

On October 6, 1975, judgment was rendered denying Pfeffer any relief and dissolving the temporary injunction. No findings of fact or conclusions of law, under Rule 296, T.R.C.P., were requested or filed.

Findings of fact contained in the judgment are: (1) plaintiff has failed to prove by a preponderance of the evidence that there was any extrinsic fraud, accident, or mistake which caused rendition of the previous judgment; (2) plaintiff has failed to establish by a preponderance of the evidence a meritorious defense to the original cause of action; and (3) attorney Shad-dock’s affidavit for citation by publication was not false or fraudulent.

Plaintiff testified that after closing his dealership in Del Rio, Val Verde County, in January of 1970, he worked until the latter part of February, 1970, for a Ford dealership in Del Rio. During the latter part of March, 1970, he began working for Mike Herron Mobile Homes. Pfeifer’s family remained in Del Rio until June, when they moved to Hempstead, where they lived until 1972 when they moved to Bellville.

The original suit was filed on April 13, 1970. Plaintiff testified that during that same month and probably the latter part of April, plaintiff met Bill Morrison, the sales manager for Town & Country, at a mobile home show in Houston. While they were having some drinks and attending a striptease show, plaintiff told Morrison that he was working for Mike Herron in Stafford, Texas.

Mike Herron testified that he is in the mobile home business. Plaintiff worked for him in this business from March, 1970, until early 1971. Pfeffer was an experienced man and Herron moved him back and forth between two of his places of business which are located at 3737 South Main, Stafford, Texas, and on the Hempstead Highway, Harris County, Texas.

Shaddock testified that neither he nor his client had any knowledge of any address where Pfeffer might be served except the addresses that he had furnished the Sheriffs in the three counties as indicated by the returns herein described.

On the issue of meritorious defense plaintiff testified that he may have sold some mortgaged mobile homes out of trust, without accounting to Town & Country for the proceeds. He admitted that he may have owed Town & Country at the time their relationship was severed, that he had never made any payments, that his books had been lost, that he does not know if their charge of $12,000.00 is valid, that in effect he had no defense at the time the suit was filed, but if the judgment were set aside as being void he would have a complete defense to the cause of action because it would now, in 1975, be barred by the statute of limitations or laches.

After citation by publication was issued and after return was made thereon, the court appointed an attorney ad litem for Pfeffer and the case proceeded to trial, resulting in a judgment against defendant. In the original proceedings the Secretary-Assistant Treasurer of Town & Country testified that he, as Secretary, had the care and custody of all the records of the corporation and was familiar with the dealings with Pfeffer. He testified that the three addresses in Del Rio, Stafford, and Harris County are the only addresses he had where Pfeffer might be located. He had been unable to locate Pfeffer through any of his dealers or salesmen and that is the reason he caused citation by publication to issue. The defendant did not appear in person or by attorney in the original suit. In the subsequent suit he testified that he did not learn of the judgment until his bank account was garnished. He filed this suit shortly thereafter.

Appellant’s point of error No. 1 is as follows:

“The Court committed fundamental error in that it denied Appellant the constitutionally guaranteed due process of law in accordance with the United States Constitution, Fifth Amendment, by its finding that Plaintiff, Appellant herein, has failed to prove by preponderance of the evidence that there was any extrinsic fraud, accident, or mistake which caused rendition of the previous judgment in Cause No. 87,-645-B in the 78th District Court of Wichita County, Texas. (Tr. p. 32). In a suit to set aside an in personam default judgment, evidence that Plaintiff and/or Plaintiff’s attorney in the original suit knew of the current address or whereabouts of the Defendant but thereafter made no effort to obtain personal service or even substituted service on the Defendant and relied only on past difficulty in obtaining service, when substituted service under Vernon’s Annotated Rules of Civil Procedure, Rule 106, could undoubtedly been had at his place of work or place of residence, will support a finding that Plaintiff and its attorney fraudulently failed to serve the Defendant with personal service in order to obtain judgment without actual notice to him; to dispense with personal service, the substitute that is most likely to reach the Defendant is the least that ought to be required if substantial justice is to be done and if due process of law is to be obtained.”

Appellant’s point of error No. 2 is as follows:

“The Court committed error in its finding that the Plaintiff, Appellant herein, failed to establish by a preponderance of the evidence a meritorious defense to the cause of action asserted by Town & Country Mobile Homes, Inc. in Cause No. 87,645-B in the 78th District Court of Wichita County, Texas. A suit to cancel a default judgment in personam for want of jurisdiction, in that only constructive service of Citation by Publication was had and such service was based on a false affidavit, is an independent suit invoking equity jurisdiction of the trial court subject to the four-year statute of ■limitations and is not a proceeding in the nature of a bill of review or a motion for a new trial subject to the two-year statute of limitations, or requiring a meritorious defense. The procurement of the issuance and service of Citation by Publication by a false affidavit is extrinsic fraud for which a judgment in personam can be cancelled in an independent suit; and such extrinsic fraud exists when the unsuccessful party is kept away from the Court by purposely keeping him in ignorance of the suit. The four-year statute of limitations does not begin to run against a cause of action for cancellation of judgment on grounds of fraud until the fraud is discovered or could have been discovered by reasonable diligence.”

In his brief plaintiff states as follows:

“This action is not brought as a bill of review under Texas Rules of Civil Procedure, Rule 329b, which is the correct procedure to set aside voidable judgments. Nor is this action brought as a motion for a new trial on a default judgment following citation by publication within the two-year period allowed to adversely affect defaulting parties for good cause shown in accordance with Texas Rules of Civil Procedure, Rule 329, because this again applies to voidable default judgments. The case at bar is a petition to cancel a void default judgment following citation by publication based on an affidavit for such constructive service containing and constituting such extrinsic fraud as would render the original judgment wholly void from its inception and the court without jurisdiction in the original cause.”

While personal service is always necessary if a judgment in personam is to be rendered against a non-resident of a state, who does not voluntarily appear or otherwise consent to some other method of service, it is a well recognized rule of law that the legislature (or in Texas, the Supreme Court) may make rules authorizing a personal judgment against a resident citizen on the basis of constructive or substitute service. In this state, with regard to its own citizens, the Supreme Court may, in a proper case, authorize the rendition of a judgment in personam on the basis of service by publication. Sgitcovich v. Sgitcovich, 150 Tex. 398, 241 S.W.2d 142 (1951); Martin v. Burns, 80 Tex. 676, 16 S.W. 1072 (1891); 62 Am.Jur.2d (1972 Ed.), See. 65, et seq., Process-Substituted and Constructive Service.

In the case of Sgitcovich v. Sgitcovich, supra, it is stated:

“. . .If personal service can be effected by the exercise of reasonable diligence, substituted service is not to be resorted to. As applied to resident defendants whose existence, names, and places of abode are known, service by publication is not sufficient to constitute due process of law. .
“ ‘. . . To dispense with personal service, the substitute that is most likely to reach the defendant is the least that ought to be required if substantial justice is to be done.’ .
“Before the trial court rendered judgment in this cause he heard testimony regarding the ‘reasonably effective (service) to give the defendant notice of the suit.’
“From all the above evidence heard by the trial court prior to his rendering judgment in this cause, the manner of service of citation in this suit was ‘reasonably effective to give the defendant notice of the suit,’ and the opportunity to appear and defend same. Therefore, it did not violate the ‘due process’ clause of the Federal Constitution, Amend. 14.”

Appellant contends that this judgment is void as distinguished from being voidable and therefore Rule 829b, T. R. C. P., does not apply. We overrule this point.

In McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961) that court stated:

“Rule 329-b, which governs time for filing and time for action on motions for new trial, contains the following provisions:
“ ‘Judgments * * * shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.’
“. . . Accordingly, we construe the emphasized provision of Rule 329-b to mean that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process. This is in harmony with our holding in Brown v. Clippenger, 113 Tex. 364, 256 S.W. 254.
“. . . And if he has no meritorious defense to the suit, the setting aside of the judgment would be a vain act and a trespass on the time of the court. If, on the other hand, a defendant has not been negligent in suffering a default judgment to be rendered against him by a court which had jurisdictional power to render it, or in permitting it to become final, and if he has a meritorious defense to the suit, he may still have the suit tried on its merits with the right to require the plaintiff to prove his case and the corresponding right to establish his defense.”

That court then stated that this holding is not in conflict with cases in which the court had no jurisdictional power to render the default judgment.

Appellant asserts he is not required to prove he had a meritorious defense. We overrule this contention.

In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950) that court held that in a bill of review proceeding, before a litigant can successfully invoke it to set aside a final judgment, he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident, or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.

It is our opinion and we hold under the facts in this case that the rule in the Hage-dorn case applies.

Appellant relies upon the case of Hammond v. Hammond, 210 S.W.2d 829 (Tex. Civ.App., Galveston, 1948, dism.), a case in which citation by publication was procured by fraud. In that divorce action the husband knew exactly where his wife lived but made a false affidavit to the effect that he did not know her whereabouts. That court held this action to cancel or set aside such a judgment is a suit in equity in the nature of a bill of review and the two year statute of limitation does not apply and that the statute of limitations for the bill of review does not begin to run until the fraud is discovered or could have been discovered by reasonable diligence.

In the above case the jury affirmatively found that the plaintiff did at all times know where his wife was living, that his affidavit was false, and all the elements of fraud. The appellate court was bound by the findings of fact by the jury. The other cases cited by appellant were cases in which a jury found the affidavit was false and the plaintiff was guilty of fraud.

In the case before us, regardless of whether same is in the nature of a bill of review under Rule 329b or some other equitable proceedings, it was necessary for appellant to obtain findings of fact to support his cause of action for equitable relief. The trier of fact found all fact issues against appellant.

Appellant testified that he told the manager of Town & Country where he was working, and appellant assumes that this establishes, as a matter of law, that Town & Country knew where he was working. He admitted that this conversation took place four and a half years previous to his testimony, and it took place while he and the manager were drinking and watching a striptease show. The trier of facts had the duty and responsibility of passing upon the credibility of the witness and the weight to be given his testimony.

In the case of Denton v. Bennett, 364 S.W.2d 857 (Tex.Civ.App., Fort Worth, 1963, writ ref., n. r. e.) that court held the trial court “was not bound by testimony of any one witness but could accept all, part, or none thereof, or he could accept part of the testimony of one witness and part of another, or draw his own deductions from all the evidence.

“An appellate court will not disturb the findings of the trial court if there is some evidence of probative value to support same, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to him.” See also 24 Tex. Jur.2d, Sec. 705 (1961 Ed.), Evidence— Weight and Sufficiency of Evidence— Weight and Credibility — and the numerous cases therein cited supporting this legal principle.

The trial court’s findings of fact contained within the judgment and the judgment itself are supported by evidence of probative value.

Appellant’s points of error are overruled.

Judgment affirmed.


author: CORNELIUS, Justice.

text:
    Nolan STRETCHER et al., Appellants, v. Willie G. GREGG et al., Appellees.
    No. 8394.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 26, 1976.

      Woodrow Edwards, Mount Vernon, Coy Johnson, Smith, Johnson & McDowell, Sul-phur Springs, for appellants.
    Charles L. Attaway, Attaway & Attaway, James S. Moss, Mesquite, for appellees.
   CORNELIUS, Justice.

Appellants have appealed from an ad verse judgment in their suit to reform and specifically enforce contracts for the sale of real estate.

By two separate contracts appellees agreed to sell to appellants, Nolan Stretcher and B. T. Stretcher, Jr., a tract of 147 acres in Franklin County. The Stretchers were purchasing the land through the Veterans Land Program. The 147 acre tract was bisected by a county road. Nolan Stretcher was to purchase the portion north of the road and B. T. Stretcher, Jr., the portion south of the road. The contracts described their purchases as the North ½ and the south ½, respectively, of the 147 acres which were then described by metes and bounds. After execution of the original contracts, the Veterans Land Board required a survey of the land. That survey revealed that the portion north of the road actually contained 86.43 acres and the portion south of the road actually contained 61.01 acres. New descriptions were then attached to the contracts in lieu of the original descriptions, making Nolan Stretcher’s contract cover the 86.43 acres north of the road and B. T. Stretcher’s contract cover the 61.01 acres south of the road. After the contracts had been in effect for some time, Mrs. Willie Gregg, one of the sellers who acted for all of them in negotiating the sale, orally advised H. L. Edwards, who had been designated as the closing attorney for the Veterans Land Board, that the sellers were dissatisfied about the delay in closing the transaction and no longer wanted to go through with the sale. She testified that Mr. Edwards told her that he would notify the Veterans Land Board to that effect. On June 30, 1973, Mr. Edwards wrote the following letter to the Veterans Land Board:

“Re: Acct. No. 69578 (Cancellation) Nolan M. Stretcher
Re: Acct. No. 69579 (Cancellation) Bun T. Stretcher, Jr.
Veterans Land Board of Austin
Austin, Texas 78701
Gentlemen:
In connection with above account numbers, please return all money deposited with Veterans Land Board to above captioned veterans.
Returned herewith is Warranty No. H540851 in amount of $12,964.50 (Nolan M. Stretcher), Contract in duplicate and affidavit.
Neither of above named veterans owe any legal fees in connection with above loan.
Very truly yours,
/s/ H. L. Edwards H. L. Edwards”

Some time later, Nolan Stretcher delivered to Mrs. Gregg proper deeds for execution and completion of the sale but she refused to execute them or to procure their execution by the other sellers. The Stretchers then filed suit to reform the contracts to cover the land as described in the new field notes and to specifically enforce the contracts as reformed.

Trial was to the court which concluded that the contracts had been cancelled, and that appellants were therefore not entitled to the relief sought. In their points of error, appellants contend that (1) the court erred in concluding that the contracts had been cancelled, and (2) as the contracts had not been cancelled, the trial court’s findings entitled them to reformation and specific performance.

The standard form Application and Contract of Sale prescribed by the Veterans Land Board was used by the parties. Paragraph 14 of that form provides:

“14. This contract shall remain in full force and effect until thirty (30) days from receipt by the Veterans’ Land Board of the State of Texas of written notice of cancellation from either party, but in no event will terminate before the expiration of 120 days from the date hereof except by written consent of both parties and notice thereof to the Veterans’ Land Board of the State of Texas. The Veterans’ Land Board of the State of Texas reserves the right to cancel after acceptance of the assignment of the contract if the seller or the veteran fails to put forth reasonable efforts to comply with the terms hereof.”

Even if a contract is cancelled pursuant to paragraph 14, the purchaser may still bind the seller to a sale, without the participation of the Veterans Land Board, if he follows the procedures outlined in paragraph 15 which provides:

“15. Notwithstanding any provision herein to the contrary, the above named veteran may at any time during which this agreement is in force elect to proceed with and perform this agreement without the participation of the Veterans’ Land Board by giving written notice of his intention to the seller and the Veterans’ Land Board. In such event, this agreement shall be deemed to be a contract for the sale and purchase of the above described land between the seller and the veteran exclusively.”

Disposition of the appeal depends upon whether appellees effectively cancelled the contracts in accordance with the provisions of paragraph 14. As appellants failed to exercise their rights under paragraph 15, they would not be entitled to relief if the required notice of cancellation was given. But if the contracts were not cancelled, they were still in force when this suit was filed and are subject to specific performance unless that remedy is prevented by some other deficiency.

Findings of fact and conclusions of law were entered. In finding of fact No. 15 the court found:

“15. H. L. Edwards of Mt. Vernon, Texas, a duly licensed member of the State Bar of Texas, acted as closing agent at the request of the Veterans Land Board. In May, 1973, after all preparations had been completed and within thirty days prior to the proposed date for closing of the sales, defendant Willie G. Gregg notified H. L. Edwards that she would not go forward with the transactions or sign the deeds required. Her notice was oral and not written." (emphasis supplied)

In conclusion of law No. 2 the court concluded:

“2. Defendant Willie G. Gregg, by giving oral notice to H. L. Edwards that she did not desire to go forward with the contracts and would not sign the necessary instruments, thereby cancelled the transactions between the parties and the Veterans Land Board of Texas.” (emphasis supplied)

Thus, the court grounded its judgment upon notice of cancellation given by Mrs. Gregg.

An option to cancel or rescind a contract must be exercised in strict compliance with its terms. G. C. Murphy Company v. Lack, 404 S.W.2d 853 (Tex.Civ.App. Corpus Christi 1966, writ ref’d n. r. e.); Barron G. Collier, Inc. v. Davidson-Levine, 294 S.W. 223 (Tex.Civ.App. Dallas 1927, writ dism’d); 17A C.J.S. Contracts § 408, p. 500. Such a cancellation is considered in the nature of a forfeiture. The courts do not favor forfeitures, and unless compelled to do so by the plain language of the contract, a forfeiture will not be enforced. G. C. Murphy Company v. Lack, supra; Mayhew v. Vanway, 371 S.W.2d 90 (Tex.Civ. App. Houston 1963, no writ). When the contract provides that notice of cancellation must be in writing, oral notice will not suffice. Nitzky v. Ohmer, 138 N.Y.S.2d 418 (N.Y.S.Ct.1955); Doll v. Ryder, 118 Pa.Super. 7, 178 A. 320 (1935); 13 Tex.Jur.2d, Contracts, See. 347, pp. 622-23. It follows that the notice given by Mrs. Gregg, being oral, would not in itself constitute notice of cancellation under the contract. The court’s conclusion that Mrs. Gregg’s oral notice resulted in cancellation would therefore be erroneous unless (1) Edwards, in writing to the Veterans Land Board, was acting for Mrs. Gregg as her agent for that purpose, and (2) such letter was intended as an exercise of Mrs. Gregg’s right to cancel the contract rather than merely an indication that Edwards believed the sellers would not complete the transaction, (3) thereby constituting Mrs. Gregg’s oral notice to Edwards and his subsequent letter to the Veterans Land Board “written notice of cancellation by either party” as required by paragraph 14 of the contracts. Appellees concede there is no specific finding to that effect. They urge, however, that under the rule of omitted findings we should presume that the trial court found those facts constituting the ultimate fact of written notice. They argue that the court’s finding of oral notice to Edwards constitutes an element of their defense of written cancellation, and that as one element of their defense was found by the trial court, the other omitted elements may be presumed to have been found in support of the judgment as provided by Rule 299. Assuming, ar-guendo, that oral notice to Edwards would constitute an element of appellees’ defense, and that the evidence would support such other findings as would amount to written notice, we cannot presume such a finding, because appellees specifically requested the trial judge to find the ultimate fact and he failed to do so. In their request for additional findings and conclusions, appellees asked the court to find and conclude that:

“By letter dated June 30, 1973, H. L. Edwards advised the Veterans Land Board of cancellation of the contracts by defendants”,

and that:

“The defendants cancelled the contract under the terms of paragraph 14 of each contract before the institution of this lawsuit.”

The court failed to make those findings and conclusions, and its failure was tantamount to a refusal. Rule 299 allows presumed findings on unrequested and omitted findings. It does not permit a finding to be presumed when that finding was requested and refused by the trial judge. Hanover Insurance Company v. Sonfield, 386 S.W.2d 160 (Tex.Civ.App. Houston 1965, no writ); Volunteer State Life Ins. Co. v. Snipes, 209 S.W.2d 935 (Tex.Civ.App. San Antonio 1948, no writ). The rule that supplemental findings necessary to support the judgment will be presumed has no application when the findings and conclusions disclose the basis for the judgment, and disclose that the court did not find such supplementary facts. Burford v. Pounders, 145 Tex. 460, 199 S.W.2d 141 (1947); Reid v. Gulf Oil Corporation, 323 S.W.2d 107 (Tex.Civ.App. Beaumont 1959), affirmed, 161 Tex. 51, 337 S.W.2d 267 (1960). The findings here indicate that the court’s judgment was based upon oral notice of cancellation and that it did not find a written cancellation. In fact, the comments of the trial judge when Edwards’ letter was offered into evidence reveal that he did not consider such letter as “written notice of cancellation by either party.” From the foregoing discussion, it is evident that the trial court’s findings do not support a conclusion that the contracts were cancelled in the manner required by paragraph 14. Appellants, then, were entitled to specific performance unless their right to it was defeated by some other defense.

Other than cancellation, appellees advanced no defense at the trial except that a material alteration was made in the contracts when the original land descriptions were replaced by new descriptions which changed the amounts of acreage. Appellants’ response was that the original descriptions were the result of a mutual mistake and that the contracts should be reformed to show the true agreement as reflected by the corrected descriptions. On these specific issues the trial court found:

1. Before signing the contracts, Mrs. Gregg and Nolan Stretcher agreed on behalf of all parties that the Stretcher brothers were to purchase all of the 147 acre tract, and that Nolan Stretcher was to receive the land on the north side of a county road splitting the property which was estimated to be one-half of the land, and B. T. Stretcher, Jr., was to receive the property lying south of said road which was estimated to be the south half of said land.
2. All parties were mutually mistaken in believing that the county road bisected the property in equal halves, but it was agreed and understood between all parties that the Veterans Land Board would require an up-to-date survey to get the exact field notes description of each portion of the land.
3. It was agreed that as soon as new field notes were available from the survey, the new field notes would be attached to the contracts and would replace the original field notes.
4. The survey revealed that the property north of the road contained 86.43 acres and the property south of the road contained 61.01 acres.
5. The new field notes showing such tracts and acreage were, by agreement of the parties, substituted for the original field notes.
6. All parties agreed that the purchase price for all land in both tracts would be $150.00 per surveyed acre.
7. The amount of the final purchase price for each tract at $150.00 per acre, after they were surveyed, was filled in on the contracts by verbal consent of all parties.
8. The contracts with the new field notes and the final purchase price filled in were then submitted by the parties to the Veterans Land Board which then approved them.
9. Nolan Stretcher and B. T. Stretcher were at all material times ready, willing and able to go forward and complete the proposed transaction, and have made tender of performance at all material times.
10. The Veterans Land Board is a party to this suit and has indicated its willingness to complete the transaction and abide by the final judgment.

These findings are supported by the evidence and appear to establish appellants’ right to reformation. Mrs. Gregg testified that the sellers were only interested in selling the entire tract for $150.00 per acre and were not concerned as to which party got which portion, so long as all was sold for the stipulated price. The original descriptions were made on the assumption that the road split the property into two equal or nearly equal portions. When the survey field notes were available, they showed a disparity in the acreage between the north and south portions. The true agreement remained, however, that Nolan Stretcher would purchase the north portion and B. T. Stretcher, Jr., the south portion with respect to the road. Where the minds of the parties have met as to the identity of the property contracted for and as to the price per acre, a mutual mistake as to descriptions or acreage may be corrected by reformation. Hill v. Davis, 392 S.W.2d 596 (Tex.Civ.App. Eastland 1965, writ ref’d n. r. e.); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972). As appellants were willing to accept their respective portions despite the adjustment in acreage, and the appellees could in no way be prejudiced thereby, a proper case for reformation was established.

The contracts are therefore reformed to incorporate the corrected descriptions. Appellants are entitled to specific performance of the contracts as reformed. This cause is therefore reversed and remanded to the trial court with instructions to enter judgment in accordance with this opinion.

      . Willie G. Gregg, Rolston Garrett, Cottrell Garrett, Connelly Garrett, and Johnnie New-som.

      . Tex.R.Civ.P. 299.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Dorothy J. CUTLER, Appellant, v. Stuart G. CUTLER, Appellee.
    No. 19013.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 16, 1976.
    Rehearing Denied Oct. 14, 1976.
    Dan E. Martens, Golden, Potts, Boeckman & Wilson, Dallas, for appellant.
    Timothy A. Duffy, Jordan, Ramsey & Hill, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Dorothy J. Cutler appeals from a take-nothing judgment rendered by the trial court in her action against Stuart G. Cutler, her former husband, for unpaid arrearages in alimony awarded her in an Ohio decree of divorce. Following a nonjury trial, the court found that the former husband had failed to make the required alimony payments but that there was no evidence presented to the trial court that the Ohio divorce decree was final and unmodifiable and that the alimony payments were vested, and, therefore, enforceable in Texas. Appellant, in her sole point of error, contends that the trial court abused its discretion in overruling a motion made pursuant to Tex.R.Civ.P. 184a requesting that the court take judicial notice of the common law, public statutes and court decisions of the State of Ohio. We agree with appellant’s contention and, accordingly, reverse the judgment and remand the cause for further proceedings.

On December 17, 1973, appellant filed suit in a district court of this state to collect unpaid arrearages in alimony payments. She based her case upon a decree of divorce entered in the common pleas court, division of domestic relations, of Hamilton County, Ohio, and on the separation agreement incorporated by reference therein. Subsequently, appellant filed a motion for summary judgment and a hearing was held at which time argument was heard and briefs were submitted for the court’s consideration. Appellee contested the motion on the ground that the appellant failed to prove the finality of the judgment under the laws of the State of Ohio. Thereafter, appellant’s motion for summary judgment was overruled. During the trial on the merits, but prior to the introduction of any evidence, appellant requested the court to take judicial notice of the laws of the State of Ohio pursuant to rule 184a. The court overruled appellant’s motion and, subsequently, after presentation of appellant’s case, appellant again presented her oral motion to take judicial notice of the laws of the State of Ohio. Once again the court overruled the motion. Consequently, a final take-nothing judgment was rendered on the ground that there was no competent evidence to establish and prove under the laws of the State of Ohio that the judgment sought to be enforced was final and vested and not subject to modification so as to entitle appellant to enforcement in Texas under the full faith and credit clause of the United States Constitution. Furthermore, the trial court found that Texas law cannot be relied upon to supply the requisite finality to the decree. The court rendered judgment after allowing nine days upon the request of appellee for the filing of briefs concerning other matters.

The party who presents the judgment and asks that full faith and credit should be given thereto is required to show that the laws of the state make such installments final and not subject to modification after their accrual. Ogg v. Ogg, 165 S.W. 912, 913-14 (Tex.Civ.App.—San Antonio 1914, no writ). The basic principle underlying Ogg is that these necessary requisites cannot be supplied by a presumption that the laws of the other state are the same as Texas because Texas law does not permit judgment for permanent alimony. Since Texas law cannot aid the judgment in determining its finality, a court must be advised of the applicable law of the foreign jurisdiction where the judgment was rendered; otherwise the judgment cannot be enforced.

Appellant recognizes that the law of this state places a condition upon her right to recover unpaid alimony awarded in a foreign jurisdiction — i. e. that such accrued installments must be vested, unpaid, and uncapable of being modified. Criteser v. Gaffey, 222 S.W. 193, 194 (Tex.Comm’n App.1920, holding approved). Appellant concedes that she has the burden of establishing that the decree for alimony was a final judgment under the laws of Ohio. Quinn v. Quinn, 216 S.W.2d 1001, 1004 (Tex.Civ.App.—Fort Worth 1948, writ ref'd n. r. e.).

Appellant points out correctly that all elements necessary to sustain the judgment were approved and found by the court in its findings of fact and conclusions of law with the exception of whether the decree of divorce was final and unmodifiable under Ohio law. She contends that she was not allowed to prove a final and unmodifiable judgment because of the trial court’s denial of her motion to take judicial notice of the laws of the State of Ohio. She further contends that the trial court erred in basing this ruling upon a failure to give adequate notice of the motion to the court and upon surprise to the appellee. Appellee responds by arguing that the court’s findings of fact and conclusions of law demonstrate that the court based its decision to deny the motion under rule 184a on the issue of adequate notice and not on an element of surprise. In fact, during oral argument before this court, counsel for appellee conceded that when the motion was presented to the court on the opening day of trial he was not caught by surprise, especially since the question of taking judicial knowledge of the laws of Ohio had been considered previously when the court considered and ruled upon the motion for summary judgment.

In this state of the record the sole question is whether the motion presented by appellant pursuant to rule 184a was made at such a late date so as to justify appellee’s contention of inadequacy of notice and to form the basis of the trial court’s discretion in overruling the motion.

Tex.R.Civ.P. 184a, entitled “Judicial Notice of Law of Other States, Etc.” provides:

The judge upon the motion of either party shall take judicial notice of the common law, public statutes, and court decisions of every other state, territory, or jurisdiction of the United States. Any party requesting that judicial notice be taken of such matter shall furnish the judge sufficient information to enable him properly to comply with the request, and shall give each adverse party such notice, if any, as the judge may deem necessary, to enable the adverse party fairly to prepare to meet the request. The rulings of the judge on such matters shall be subject to review.

In Gard v. Gard, 244 S.W.2d 884, 886-87 (Tex.Civ.App.—El Paso 1951, no writ), the court held the movant is required to give the adverse party only such notice, if any, that the judge deems necessary to enable the adverse party fairly to prepare to meet the request. Also in Gould v. Awapara, 365 S.W.2d 671, 673-74 (Tex.Civ.App.—Houston 1963, no writ), the court held that even though no formal motion was made requesting the court to take judicial notice of the statutes of a foreign jurisdiction, those statutes were pleaded and the other party was given notice of the mov-ant’s intention to rely upon them. Furthermore, the court held that upon the trial of the merits the applicability of the foreign law was argued, and after all evidence was presented, the case was reset for five days to give the attorneys further time to prepare argument on the law. Thus, the court concluded that the opponent had full notice of reliance by the movant on the foreign law and had adequate time in which to prepare an argument. Consequently, the court affirmed the trial court’s taking judicial notice. The main thrust of Gard and Gould is that opposing counsel should be given sufficient time to respond intelligently to the specific contents of the motions. In the case under consideration, the appel-lee was fully aware of appellant’s intention to rely upon the foreign judgment since the issue was previously argued and briefed upon the question of summary judgment. Furthermore, in the original petition filed by the wife, appellant herein, it was recited that pursuant to the laws of the State of Ohio a certain sum of alimony payments was sufficient and owing to the wife by the husband and that all judgments rendered in the State of Ohio were entitled to full faith and credit under the constitution and laws of the United States.

In his original motion filed pursuant to rule 184a appellant’s counsel gave the court three cases from Ohio, reported in the North Eastern Reporter system, all of which set forth the applicable Ohio law desired to be made known by appellant in support of her cause of action. Thus, the court and counsel for appellee had ample opportunity to become knowledgeable of the Ohio law at issue during the trial of the case and before judgment was rendered. If he needed more time, the court could have given him leave to respond to the motion after all evidence had been presented. In this connection it is significant that after the testimony was closed the trial court allowed counsel for appellant and appellee nine days within which to submit authorities on other questions. It is also significant that the trial of the case occurred on July 9, 1975, and final judgment was not rendered until January 30, 1976. Thus, the record affirmatively shows that granting appellant’s motion and allowing ample time for appellee to respond would not have delayed the trial or final disposition of the case.

The record reflects that at no time did counsel for appellee request a continuance or withdraw his announcement of ready in order to comply with his burden of becoming familiar with Ohio law in responding to the motion filed by appellant. In a recent case, when a movant made motion under rule 184a, the opponent objected to a lack of proper notice but did not request a recess or continuance during which they could prepare a defense to the motion. The Tyler Court of Civil Appeals held that the opponents were not denied an opportunity to meet the request for judicial notice and that the trial court did not err in taking judicial notice of the foreign statute. Wickware v. Session, 538 S.W.2d 466, 470 (Tex.Civ.App.—Tyler 1976, no writ).

We are convinced from a reading of the entire record in this case that time was not of the essence in the rendition of the judgment and that appellee failed to show himself to be prejudiced by appellant’s failure to file formal notice under rule 184a until the day of the trial. We are also convinced that the procedural results exhibited in this record are so harsh as to deny appellant’s right of enforcement of a possibly valid foreign judgment. While it is true that the trial court possesses discretion with respect to notice to the adverse party, it does not have the discretion to refuse to take judicial notice of the foreign law upon proper motion. In our judgment this case is one which demonstrates that the trial court abused its discretion in denying appellant’s right to present its motion under rule 184a. Accordingly, we reverse the judgment and remand the cause to the trial court for further proceedings.

Reversed and remanded.


author: GUITTARD, Justice.

text:
    RUNNYMEDE CORPORATION, Appellant, v. METROPLEX PLAZA, INC. et al., Appellees,
    No. 19076.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 1, 1976.
    Rehearing Denied Nov. 4, 1976.
    Wm. Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellant.
    George W. Bramblett, Jr., Haynes & Boone, John F. Boyle, Jr., Dallas, for appel-lees.
   GUITTARD, Justice.

Appellee Tom Tenhagen moves to dismiss this appeal because the bond was not filed within thirty days after the final judgment was signed. We sustain the motion.

The question is whether a judgment in favor of one defendant is final and appeala-ble although it does not refer to an earlier interlocutory judgment in the same cause in favor of the only other defendant. We hold that it is.

Appellant Runnymede Corporation sued Metroplex Plaza, Inc. and Tom Tenhagen. On May 6, 1975, a summary judgment in favor of Metroplex was rendered and signed. No severance was ordered. On February 24, 1976, Tenhagen’s plea in abatement was sustained and an order was signed dismissing the suit on the ground that Runnymede’s charter had been forfeited. This order did not refer to the previous interlocutory order and did not mention defendant Metroplex. On June 17, 1976, a “final judgment” was signed expressly incorporating both of the previous orders and reciting that both were interlocutory. The appeal bond was filed on July 9, 1976.

Appellee contends that the judgment of February 24, 1976, was final under Zachry v. Thibodeaux, 364 S.W.2d 192 (Tex.1963), and, consequently, that the subsequent order of June 17 was a nullity. We agree. Appellant attempts to distinguish Zachry on the ground that in that case the second order was a voluntary dismissal rather than an adjudication of the merits. Appellant’s position is supported by a number of decisions of the courts of civil appeals, including Gaitz v. Markman, 482 S.W.2d 391 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ) and Thomas v. Shult, 436 S.W.2d 194 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ). These decisions were apparently overruled by Webb v. Jorns, 488 S.W.2d 407 (Tex.1973), in which a second judgment was rendered on an instructed verdict after a jury trial, but was held to be final and appealable although it did not refer to a previous judgment which had dismissed the case “with prejudice” as against another defendant. Consequently, we must hold that the judgment of February 24, 1976, was final, that the trial court lost jurisdiction thirty days after that date, that the judgment of June 17, 1976, was a nullity, and that we have no jurisdiction of this appeal.

Appeal dismissed.


text:
    Charles DIXON, a/k/a Charles T. Dixon, Appellant, v. MAYFIELD BUILDING SUPPLY CO., INC., Appellee.
    No. 17765.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 8, 1976.
    Rehearing Denied Nov. 5, 1976.

      McGuire, Levy, Collins & McCurley, and Carl M. McCurley, Irving, for appellant.
    Bagby, McGahey, Ross & DeVore, Inc., and Terry B. Arnn, and Philip C. McGahey, Arlington, for appellee.
   OPINION

SPURLOCK, Justice.

Plaintiff, Mayfield Building Supply Company, Inc., sued Charles Dixon, defendant, on an open account for goods, wares, and merchandise alleged to have been furnished him at his request. Plaintiff’s petition was properly verified so as to constitute prima facie evidence of the claim as provided by Rule 185, T.R.C.P. Defendant contends the goods were furnished a corporation of which he is president or to a joint venture of which he is a part. Trial was to the court. Judgment was rendered that plaintiff recover its account plus attorney’s fees. Defendant appeals. At the request of the defendant the trial court made findings of fact and conclusions of law.

The defendant contends he properly verified his answer and plaintiff failed to prove a cause of action against him. Plaintiff contends that since the answer is not sworn to as required by the rules and the account was admitted in evidence without objection, the account is admitted.

Judgment affirmed.

Plaintiff is in the business of supplying lumber and building materials to general contractors and home builders. On April 26, 1973, defendant made application for credit as an individual with the plaintiff. This application was approved. Thereafter, defendant bought lumber and building materials from the plaintiff over a period of about a year and a half. Defendant built about 25 homes and bought most of the materials from the plaintiff. Defendant or its agents would call the plaintiff’s office and place an order and designate where the material was to be delivered. This order was transferred to the yard office where the order was filled and several copies of the delivery ticket were prepared and the merchandise was then delivered to the address requested by the defendant and a copy of the delivery ticket was left with the defendant or his agent. At periodic times the defendant was billed as an individual and furnished a copy of the ledger sheets showing the credits and the balance due. The unpaid invoices, which showed the dates of delivery, the merchandise delivered, and the prices charged therefore, were attached to plaintiff’s petition. This account was properly verified by the credit manager of the plaintiff who was in charge of the books and this account. The verification was in the language required by Rule 185, T.R.C.P.

Defendant answered that each and every item in the account made the basis of plaintiff’s suit is wholly not just and true. By separate paragraph he then denied that each and every, all and singular, the allegations contained in plaintiff’s original petition, and says they are not true in whole or in part, and demands strict proof thereof and puts himself on the country. This pleading is signed by the defendant. Below the signature appears the following:

“STATE OF TEXAS \

“COUNTY OF DALLASJ

“BEFORE ME, the undersigned authority, on this day personally appeared CHARLES DIXON, known to me to be the person who executed the foregoing instrument and acknowledged to me that he executed the same for the purposes therein expressed and that the facts contained therein are true and correct.

“GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the 26 day of October, 1975.

“/s/ Virginia L. Bailev
“NOTARY PUBLIC In And For
“Dallas County, Texas”

Defendant presents 45 points of error. Except for points 16, 17, 18, 28, 29, and 30, concerning attorney’s fees, the points assert that defendant’s verified denial destroyed the probative force of the itemized account, and that plaintiff did not adequately prove the elements of a suit on a sworn account.

We hold that the above quoted denial of plaintiff’s account does not constitute a verified denial in that the defendant did not deny the account under oath.

Swearing to the statement by the party making and signing it is essential to the validity of an affidavit. Hardy v. Beaty, 84 Tex. 562, 19 S.W. 778 (Tex.Sup., 1892).

The general test applied to determine the sufficiency of an affidavit is that if the facts are falsely sworn to, the affiant may be prosecuted and convicted of perjury. 2 Tex.Jur.2d, Sec. 22 (1959 Ed.), Affidavits — In general; Test of Sufficiency.

In State v. LeBlanc, Inc., 399 S.W.2d 919 (Tex.Civ.App., Houston, 1966, no writ hist.) that court stated: “The answer filed in opposition to the motion for summary judgment cannot be considered as an affidavit. The notary public has merely certified that the person signing the pleading stated that the matters set out therein were true and correct. It is essential that one making an affidavit swear or affirm under oath that the facts stated are true.”

Defendant also asserts that the pri-ma facie effect of Rule 185 should not apply to him inasmuch as he, as an individual, was actually a third party. It is well established that the rule which makes a verified account prima facie evidence, in the absence of a written denial under oath, does not apply to transactions between third parties or parties who are strangers to the transaction. This exception has been applied where plaintiff’s own pleadings or the invoices or other evidence exhibited as the basis of the obligation reflect that the defendant was not a party to the transaction. Boysen v. Security Lumber Co., Inc., 531 S.W.2d 454 (Tex.Civ.App., Houston, 14th Dist., 1975, no writ hist.) and the cases therein cited.

In the case before us plaintiff pled that at the insistence and request of the defendant, it sold and delivered to the defendant various goods, wares and merchandise described in the itemized account attached; and that defendant promised and became bound and liable to pay plaintiff for same.

The invoices were all addressed to defendant as an individual. The ledger sheets also show that all the items sold were debited to the account of the defendant as an individual.

The credit manager for the plaintiff testified that the goods were sold to the defendant as an individual for the prices therein stated; that all offsets and credits have been allowed; and to all the facts necessary to prove up the account. The account was admitted into evidence without objection. The ledger sheet of the plaintiff showing the entire account and each transaction with the defendant in connection therewith was also admitted into evidence without objection. Therefore, this case does not fall within the “stranger to the transaction” exception. Boysen v. Security Lumber Co., Inc., supra.

It is well settled that an open account sworn to in accordance with the rule and the justness of which has not been denied by the defendant under an oath that meets the requirements of Rule 185 and 93(k) makes, when introduced in evidence, a prima facie case and is sufficient to support a judgment.

In First National Bank of San Angelo v. Sheffield, 475 S.W.2d 820 (Tex.Civ.App., Austin, 1972, no writ hist.) that court held that: “While some defenses against a sworn account may be proved in the absence of a sworn denial, the defense that the account was wrongfully charged against the defendant, and that he did not owe it, may not be proved in the absence of a sworn denial.”

The courts in the following cases followed the above rule: Boysen v. Security Lumber Co., Inc., supra; Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353 (Tex.Civ.App., San Antonio, 1942, ref., w. m.).

Even if defendant was not foreclosed by the provisions of Rule 185, we hold that the findings of fact and conclusions of law made by the court and the judgment are supported by evidence of a probative nature.

Defendant, by its points 16-18 and 28-30, asserts error of the court in rendering judgment against him for attorney’s fees. He neither briefed nor argued these points.

It is undisputed that plaintiff alleged all the necessary facts for it to recover attorney’s fees under Art. 2226, V.A.J.S., and that demand for payment of the account was made on defendant more than 30 days before this suit was filed. The credit manager for plaintiff testified the account was past due and unpaid and it was necessary to employ attorneys to collect the account and it employed attorneys for this purpose.

Philip McGahey, attorney of record for the plaintiff in this case, testified: he was employed to collect this account; the amount of work performed by him in this connection; and that a reasonable attorney’s fee in regard thereto would be in the amount of $8,000.00. The trial court awarded $6,794.12 attorney’s fees. The findings of fact and conclusions of law and the judgment awarding attorney’s fees in this amount are supported by evidence of probative value.

We have carefully considered each point of error and overrule each.

Judgment affirmed.


text:
    H. W. J., Sr., Appellant, v. The STATE DEPARTMENT OF PUBLIC WELFARE, Appellee.
    No. 8381.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 12, 1976.
    Rehearing Denied Nov. 16, 1976.
    Carter O. Beckworth, Longview, for appellant.
    Odis R. Hill, Dist. Atty., Longview, for appellee.
   CORNELIUS, Justice.

In a suit brought by the State Department of Public Welfare, the trial court rendered judgment terminating the parent-child relationship between appellant and his children, A.M.J. and H.W.J., Jr.

Section 15.02(1) (Supp.1975), Texas Family Code, authorizes the court to terminate the parent-child relationship if the parent has engaged in the conduct specified in any of the various subparagraphs of that section, and if the court finds termination to be in the best interests of the children. The court’s judgment here was based on its findings that termination was in the best interests of the children and that appellant had engaged in the conduct described in subparagraphs (C), (D) and (E). Those sub-paragraphs refer to the conduct of a parent who has:

“(C) voluntarily left the child alone or in the possession of another not the parent and, although expressing an intent to return, failed to do so without providing adequate support of the child and remained away for a period of at least six months; or
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.”

Appellant’s only contention on appeal is that the court’s judgment was actually based on the fact that he had been sentenced to a life term in the Texas Department of Corrections, and he asserts that such fact is legally insufficient to show the conduct described in either subparagraphs (C), (D) or (E) of Sec. 15.02(1).

The evidence, viewed most favorably to the judgment, is summarized as follows: The children’s mother was a prostitute. She married appellant when she was pregnant with A.M.J., a girl who is now 9 years of age. H.W.J., Jr., a boy who is now 5 years of age, was born some four years after the marriage. The little girl was born without rectal or vaginal openings. She has undergone surgery to partially correct the abnormalities and will require additional surgery in order to completely recover and lead a normal life. Appellant had a long history of criminal conduct prior to his marriage to the children’s mother. Shortly before the birth of the second child, he again embarked upon a course of criminal conduct which culminated in his sentence of life imprisonment. During his incarceration, the children were left with the mother part of the time and were shuttled about in foster homes at other times. Prior to the filing of these proceedings, the mother abandoned the children, and she has filed a voluntary relinquishment of her parental rights. Appellant conceded that the mother was' a dangerous and unfit person and that it was unsafe and unwholesome for the children to be with her. Appellant has been in prison since 1971 and will not be eligible for parole until 1984. In 1971, he filed petitions with the State Department of Public Welfare and the Gregg County Welfare Unit requesting that they find suitable adoptive parents for his children. Those petitions recite a long history of unwholesome circumstances and neglect surrounding the children, and contain repeated representations that their health and safety were being adversely affected by their presence with the mother. The following excerpts illustrate the content of those petitions:

“The Petitioner would like to see his aforesaid two children adopted into a home of responsible parents that would take the x-convict name from them, and therefore give my children a chance to find the real love and affection and medical care under another name that would erase my past record from their future.”
“Petitioner ... is filing this Petition in good faith and hope, and in the best interest of his above said two children. Petitioner prays, that this Honorable Texas State Child Welfare Department, . . . will act as fast as possible to take into custody, Petitioner’s two (2) children, . . .. Petitioner’s wife . is incapable of taking care of the aforesaid . . . two (2) children and will further ‘endanger’ their lives, as Petitioner will show this Honorable Texas State Welfare Department.”
“Petitioner also states that his wife has left him many times and hitch-hiked rides with truck drivers, and took our little four year old daughter . . . out on the High-way and hitch-hiked rides, endangering both their lives.”
“Both Petitioner . . . and Petitioner’s wife . . . are ‘Not’ and ‘Will Not’ be able to take responsible care of their two children, because of the prison terms that we are both facing.”

Despite his previous requests that the children be placed for adoption, appellant now resists any termination of his parental rights. He testified at the trial that his most recent criminal conduct was actually for the benefit of his children as he was attempting to secure money with which to begin a business of his own so that he could provide suitable support. He hopes to be released on parole in or prior to 1984, and now contends that even while in prison he will furnish parental guidance and advice which would inure to the children’s benefit. In rebuttal, appellee presented evidence that appellant made no personal contact with the children and provided no means of sustenance for them from 1971 to 1974, the children do not recognize appellant as their father, and that appellant has only seen the younger child once for about 5 minutes during a jail visit in 1971.

The mere imprisonment of a parent, of and by itself, does not constitute intentional abandonment of his children. Jordan v. Hancock, 508 S.W.2d 878 (Tex.Civ.App. Houston-14th District 1974, writ ref’d n. r. e.); Hutson v. Haggard, 475 S.W.2d 330 (Tex.Civ.App. Beaumont 1971, no writ). See also In Be K, 520 S.W.2d 424 (Tex.Civ.App. Corpus Christi 1975) affirmed, 535 S.W.2d 168 (Tex.1976). Neither would imprisonment, of and by itself, constitute the conduct described by subpara-graphs (C), (D) or (E) of Sec. 15.02(1). But if such imprisonment is the result of, or is coupled with, a voluntary, deliberate and conscious course of conduct which has the effect of placing or allowing the children to remain in conditions which endanger their physical or emotional well-being, a finding under subparagraphs (D) and (E) may be justified. The record here will reasonably support a conclusion that appellant followed such a course, and that his criminal activities, together with the other circumstances indicating a disregard of the children’s well-being, constituted the conduct specified by subparagraphs (D) and (E) of Sec. 15.02(1). Therefore, the trial judge’s finding, as to subparagraphs (D) and (E), is supported by sufficient evidence and his judgment must be affirmed.

It is so ordered.


author: BARROW, Chief Justice.

text:
    David C. WOLFE, Appellant, v. Richard C. ARROYO et al., Appellees.
    No. 15647.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 13, 1976.

      John Michael Doyle, Frank D. Johnson, Doyle & Johnson, San Antonio, for appellant. ■
    Morton Baird, San Antonio, Richard C. Arroyo, Brownsville, for appellees.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a take-nothing summary judgment in his suit to recover damages from appellees, Robert R. Sanchez and Richard C. Arroyo, for filing a groundless and unfounded suit for medical malpractice against him. Dr. Richard Hernandez, Jr. was joined as a party defendant, but a non-suit was taken as to the claim against him.

On July 31, 1974, Cause No. 74CI-5852, styled Robert R. Sanchez vs. James F. Huff and David C. Wolfe, was filed in the 150th District Court of Bexar County by attorney Arroyo on behalf of Sanchez. It was alleged that Dr. Wolfe committed certain acts of negligence in failing to properly diagnose and treat Sanchez for injuries he sustained in an accident. On January 27, 1975, a take-nothing summary judgment was entered in favor of Dr. Wolfe.

On June 13,1975, Dr. Wolfe filed this suit wherein it was alleged that Sanchez and Arroyo knew or should have known that there existed no cause of action against Dr. Wolfe and yet these parties made allegations which they knew or should have known were untrue. It was alleged that Arroyo thereby showed that “he meant to obstruct the administration of justice, and bring the Court system of the State of Texas and County of Bexar into disrepute.” It was further alleged that both parties “conspired to bring an unfounded claim with the fixed purpose to injure the Plaintiff, and that each of the Defendants foresaw the resulting damage to Plaintiff by filing said baseless action, [and] the filing of said unfounded claim was a proximate cause of the injury to the Plaintiff.”

Dr. Wolfe alleged that he suffered mental trauma requiring treatment by a psychiatrist and preventing the performance of his duties as an orthopedic surgeon. Furthermore, his insurance premiums were increased as a result of the suit against him. He asserted that the filing of the baseless cause of action produced ridicule and embarrassment toward him by his peers and colleagues which would result in their refusal to refer patients to him. He sought pecuniary damages in the amount of $750,-000.00 for his embarrassment and probable loss of earnings in the future.

Sanchez and Arroyo urged by a motion for summary judgment that Dr. Wolfe had not asserted a cause of action under Texas law in that the Court, in Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920), established the rule that the imposition of court costs is the sole penalty for wrongful prosecution of civil suits unless there has been a seizure of the person or property of the plaintiff. Appellant did not reply to the motion for summary judgment. The trial court concluded that no cause of action exists under Texas law as to the facts alleged against appellees and granted a take-nothing summary judgment.

Appellant urges on this appeal that he has alleged a cause of action against appel-lees for constructive contempt and for an invasion of privacy. He makes no complaint as to the trial court’s implied finding that he has no cause of action for malicious prosecution and we make no determination regarding such implied finding.

Appellant’s contention that he has alleged a cause of action for constructive contempt is based on the allegation that Arroyo meant to obstruct the administration of justice and bring the court system into disrepute by filing a groundless lawsuit. Civil contempt proceedings have been defined as those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for their benefit. See Ex parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531 (1911). There is no allegation that Arroyo violated any order of the court in filing the suit. Appellant does not assert a cause of action for contempt by alleging that appel-lee filed a groundless suit.

In Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), the Supreme Court held that an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted. The Court considered two definitions in adopting this rule.

The right of privacy has been defined as the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity. 77 C.J.S. Right of Privacy § 1. A judicially approved definition of the right of privacy is that it is the right to be free from the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. 62 Am.Jur.2d, Privacy § 1, p. 677, and cases cited.

It has been suggested by Prosser, Privacy, 48 Calif.L.Rev. 383 (1960), that invasion of privacy is not one tort, but a complex of four torts tied together by a common name, but otherwise having almost nothing in common. These four torts are described as follows:

1.Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

Texas courts have expressly recognized two of these types of invasion of privacy: intrusion, through wiretapping, was recognized as a valid cause of action in Billings v. Atkinson, supra; and appropriation, through the unauthorized exploitation of plaintiff’s name and likeness for commercial purposes, was recognized in Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex.Civ.App.—Eastland 1975, writ ref’d n. r. e.). See Bacharach, The Privacy Action in Texas, 29 Sw.L.J. 928 (1975). We have not found a Texas case which has considered the other two types of invasion of privacy.

Appellant cannot recover in this suit for an alleged invasion of privacy. His complaint against appellees is based solely on their allegedly wrongful action in filing a groundless suit against him. While the question has never been considered in Texas in relation to a cause of action for invasion of privacy, it has been held in other jurisdictions that communications in judicial proceedings are absolutely privileged and are immune from an action for invasion of privacy. Froelich v. Adair, 213 Kan. 357, 516 P.2d 993 (1973). This absolute privilege for judicial proceedings has been recognized in Texas in other suits. Runge v. Franklin, 72 Tex. 585, 10 S.W. 721 (1889); Butler v. Lilly, 533 S.W.2d 130 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ dism’d); Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.); Bloom v. A. H. Robins Company, 479 S.W.2d 780 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.), cert. denied, 410 U.S. 983, 93 S.Ct. 1504, 36 L.Ed.2d 179 (1973). The trial court did not err in concluding that appellees are not liable for an invasion of privacy because of the allegations contained in the suit filed against appellant.

The motion for summary judgment was supported by the affidavits of the two appellees. Appellant did not file a reply or controverting affidavit. He urges, however, that a fact issue is raised by the two affidavits in that both were made by interested parties. This contention overlooks the well-settled rule that the trial court was required to consider only the pleadings of the parties in determining that appellant had failed to allege a cause of action. We have used this test in concluding that the trial court did not err in granting the summary judgment.

The judgment is affirmed.

      . It was alleged that Dr. Hernandez “falsely, maliciously, knowingly and in reckless disregard of the truth, uttered and communicated defamatory statements and language which were distributed and circulated far and wide among [Dr. Wolfe’s] fellow physicians, and others . . . and that as a direct and proximate result [he had] been seriously injured in his name, fame, reputation, and business, to his damage . . . .’’in the sum of $250,-000.00.

      . Communications in judicial proceedings are privileged because of the overriding public interest in a free and independent court system.


author: McDONALD, Chief Justice.

text:
    J. W. WATTS, Appellant, v. N. L. EVERETT and La Verne Everett, Appellees.
    No. 5621.
    Court of Civil Appeals of Texas, Waco.
    Oct. 14, 1976.
    Carl E. Roberts, Dallas, for appellant.
    Davis D. Bass, Waxahachie, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Watts from summary judgment for $6030. rendered against him on two notes.

Plaintiffs Everett sued defendants Watts and Berryman on two promissory notes alleged to secure the payment of rents on 415 acres of land in Ellis County leased by plaintiffs to defendants. The first note was for $4800. payable $400. per month beginning on January 1, 1975. The second note was for $4800. payable $400. per month beginning January 1, 1976. The notes contained acceleration provision in event of non-payment of any installment. Plaintiffs alleged 3 unpaid installments of $400. on the first note, and one unpaid installment on the second note due January 1, 1976 (which accelerated all 12 payments).

Defendants answered by general denial.

Plaintiffs moved for summary judgment against defendant Watts attaching copies of the two notes; and the affidavits of plaintiffs. Such affidavits state defendants executed and delivered the two notes sued on to plaintiffs; that plaintiffs are cohold-ers of the notes; and that defendants failed to pay the October, November, and December 1975 installments on the first note, and the January 1, 1976 installment on the second note, accelerating such note.

The trial court granted plaintiffs’ motion against defendant Watts and rendered judgment against him for $6080.

Defendant appeals on 2 points contending among other matters, the trial court erred in rendering summary judgment against him because there were material issues of fact presented by the terms of the notes.

The two notes are identical except for the dates upon which the $400. monthly installments are to be made. Each note states that the note represents the payments due from defendants to plaintiffs on a lease of 415 acres of land in Ellis County “said lease being recorded in the deed records of Ellis County, Texas, reference to which is hereby made for all relevant purposes”; and the final paragraph of each note states “This note is further conditioned on the terms of said lease and should the lease no longer be in effect this note shall be null and void”.

The lease was not a part of the record on summary judgment, and plaintiffs’ affidavits do not mention the leases except to state “Such notes were to secure the payment of rents on 415 acres of land in Ellis County, Texas, leased by plaintiffs to defendants herein.”

Summary judgment should not be granted, and if granted should be affirmed only if the summary judgment proof establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., Tex., 450 S.W.2d 827. All burdens are on the mov-ant. Swilley v. Hughes, Tex., 488 S.W.2d 64. The party opposing the motion for summary judgment is not required to establish his right to prevail. Glenn v. Prestegord, Tex., 456 S.W.2d 901; Lewter v. Dallas County, CCA (Waco) NRE, 525 S.W.2d 885.

Plaintiffs’ summary judgment proof is that the two notes sued on are “conditioned on the terms of [a lease] and should the lease no longer be in effect this note shall be null and void.”

The lease was not made a part of the record by movants, and their affidavits nowhere negative any adverse effect of the lease on defendant’s liability on the notes.

Fact issues have been presented by the terms of the notes which the record on summary judgment does not resolve.

Defendant’s contention is sustained.

REVERSED AND REMANDED.


text:
    Emma Jean BURNETT, Appellant, v. Ken L. ANDERSON, Appellee.
    No. 19052.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 14, 1976.

      Gregory L. Ceshker, Ashley & Welch, Dallas, for appellant.
    Michael V. Killough, Killough & Killough, Dallas, for appellee. 1
   CLAUDE WILLIAMS, Chief Justice.

Emma Jean Burnett brought an action in the district court against Ken L. Anderson in trespass to try title and to cancel a trustee’s deed. In the same action she sought a temporary injunction to restrain Anderson from proceeding in a forcible entry and detainer suit pending in the justice court, precinct two, place one of Dallas County, and from causing same to be tried and from having a writ of restitution issued therein or in any other suit on the real property in controversy and the trespass to try title action, and from interfering with her possession of said property during the pendency of the cause of action in the district court. The trial court denied the temporary injunction and Emma Jean Burnett appeals. After the appeal was perfected this court granted its temporary injunction to protect its jurisdiction pursuant to authority of Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon 1964).

Appellant contends that the trial court abused its discretion in denying her application for temporary injunction because (1) one of the debtors on the note was not given notice of the sale of the real property in compliance with Tex.Rev.Civ.Stat.Ann. art. 3810 (Vernon Supp.1975), and (2) the alleged substitute trustee who conducted the sale under the deed of trust did not have the authority to either post the property for foreclosure or hold a sale thereof. We hold that the trial court did not abuse its discretion and affirm the order denying the temporary injunction.

The facts are uncontroverted that on March 8, 1972, Emma Jean Burnett and her ex-husband Travis William Burnett purchased the real property which is the subject of this controversy. In consideration of the sale, both parties executed a promissory note which was secured by deed of trust on the real property. The note was payable to Charter Mortgage Company. On March 5, 1974, Emma Jean Burnett and her husband were divorced. Pursuant to the divorce decree, Travis William Burnett conveyed his entire interest in the real property to Emma Jean Burnett. On March 6, 1974, Travis William Burnett mailed a letter to Charter Mortgage Company stating that he had transferred his interest in the property to his former wife but requested that he be personally notified of any delinquencies, declarations of acceleration, or notices regarding foreclosure on the note at his new mailing address included in the letter.

Emma Jean Burnett continued to make payments on the note until the fall of 1975 when she became ill thereby creating difficulty in making the payments. She was continuously ill and hospitalized until the middle of April 1976.

Charter Mortgage Company assigned the note and lien to Manufacturer’s Hanover Trust Company. Thereafter, on May 5, 1976, Charter Mortgage Company mailed a letter to Manuel DeBusk requesting him, as substitute trustee, to proceed to foreclose on the mortgage loan in accordance with the terms of the deed of trust. A written appointment of substitute trustee and acceleration of maturity was not executed by Manufacturer’s Hanover Trust Company until May 10,1976. Manuel DeBusk did not receive the appointment of substitute trustee in acceleration of maturity until after he had conducted the trustee’s sale on June 1, 1976. There is no evidence that Charter Mortgage Company was acting as an agent for Manufacturer’s Hanover Trust Company.

On May 10, 1976, Manuel DeBusk mailed by certified mail a letter to Emma Jean Burnett saying that the property had been posted for foreclosure sale for June 1, 1976. He also mailed a certified letter to Travis William Burnett which was addressed to Burnett’s former address, the location of the property in controversy. Travis William Burnett did not become aware of the trustee’s sale until after June 1, 1976, although he was still a debtor on the note at the time of the sale. On June 1, 1976, the property was sold to appellee, Ken L. Anderson, who then told Emma Jean Burnett that he owned the property and that she should vacate the premises. Thereafter, he filed a forcible entry and detainer suit in the justice of the peace court seeking possession of the property. Emma Jean Burnett then filed this suit in the district court to cancel the trustee’s sale contending that the sale was void and that she should be decreed to be the owner of the property.

While appellant Burnett concedes that she received notice by certified mail of the trustee’s sale prior to June 1, 1976, she argues that Tex.Rev.Civ.Stat.Ann. art. 3810 (Vernon Supp.1975) expressly requires that the holder of the debt serve written notice of the proposed sale by certified mail on each debtor obligated to pay such debt according to its records at least twenty-one days preceding the date of the sale. The statute further recites that such notice shall be completed upon the deposit of the certified letter in the United States Postal System, if it is properly addressed to the most recent address shown by the records of the holder of the debt for each debtor. The evidence does not establish conclusively that the holder of the debt, Manufacturer’s Hanover Trust Company, was in possession of the most recent address for Travis William Burnett in its record which would result in a violation of the statute. Accordingly, we overrule her contention.

Appellant Burnett also contends that the trial court abused its discretion in denying her application for temporary injunction because the substitute trustee, Manuel DeBusk, did not have authority to conduct the judicial sale. This contention is advanced for the first time on appeal to this court. The contention was not contained in the trial pleadings nor was it ever urged to the trial court in any manner. Appellant Burnett admits that this matter was not contained in her pleadings nor presented in the trial court but contends that she is permitted to raise the question on appeal for the first time based upon the argument that the issue was tried by implied consent under Tex.R.Civ.P. 67.

The question before the court is whether the trial court abused its discretion by denying Burnett’s application for temporary injunction. The trial court entered the order based upon the pleadings and the evidence before it at that time. Since the question of the trustee’s authority was not raised by pleading, the judge, in his discretion, could regard this question as not properly before him for decision. Consequently, we have no basis for holding that the trial court abused its discretion in denying the temporary injunction.

The trial court’s order denying the temporary injunction is affirmed. The temporary injunction issued by this court will continue until an application for writ of error is filed, or the time expires for filing such an application without its being filed, or until the time for filing a motion for rehearing in this court expires without such a motion being filed.