author: MOORE, Justice.

text:
    Malcolm Glenn RAY, Appellant, v. Frances Earlene RAY, Appellee.
    No. 941.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 16, 1976.

      Lance C. Winchester, Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.
    Joel Cook, Schlanger, Cook, Cohn & Mills, T. Wayne Harris, Houston, for appellee.
   MOORE, Justice.

This is a divorce case in which the only problem is the denial of a motion for continuance by appellant based upon his absence at the trial. Frances Earlene Ray, appellee here and petitioner below, instituted suit against her husband, Malcolm Glenn Ray, appellant here and respondent below, for divorce, custody of the minor children and division of the community property. In his answer appellant filed a general denial and sought custody of the minor children in the event a divorce was granted. Trial was held before a jury and pursuant to the jury’s verdict on five special issues the court rendered a decree of divorce, awarded the custody of all three children to the appellee and ordered a division of the community property.

By a single point of error appellant appealed from the judgment on the sole ground that the trial judge abused his discretion in denying a motion for continuance and in failing to grant a new trial due to appellant’s absence at the trial. We find no abuse of discretion and affirm the trial court.

The record is before us upon a transcript without a statement of facts. The transcript contains nothing more than the pleadings, certain docket entries made by the trial judge and appellant’s second motion for continuance. The record shows that the cause was set for the week of Tuesday, September 2, 1975. In accordance with the local court rules, appellant’s attorney appeared at a docket call on Friday, August 29,1975, and announced “ready” for trial for the week of September 2nd. On the date on which the case was called to trial, appellant’s attorney appeared and filed a handwritten motion for continuance and as grounds for continuance, alleged that at a preliminary hearing theretofore held on August 20, 1975, the trial judge had stated, in appellant’s presence, that the case “would probably not be reached for trial this week” (the week for which trial had been scheduled). Appellant’s attorney further alleged that as a result of the August 20,1975, hearing, the appellant was ordered to vacate the community residence by August 27, 1975; and that he had not heard from the appellant nor had any communication from the appellant since the date of the aforementioned hearing, August 22, 1975. Appellant’s attorney also alleged that he had no idea where the appellant presently resided and had no way to contact him despite having made numerous efforts to so do; that Mr. Ray had not been notified that the case had been called for trial and that he had no way to notify him that the case had been called to trial.

It is a well settled rule in Texas that the granting of continuance is a matter resting within the sound discretion of the trial judge. Rules 251, 252, Texas Rules of Civil Procedure; Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963); Doyle v. Doyle, 482 S.W.2d 285 (Tex.Civ.App.—Beaumont 1972, no writ), cert. denied, 409 U.S. 855, 93 S.Ct. 195, 34 L.Ed.2d 100 (1972); Linton v. Jones, 462 S.W.2d 636 (Tex.Civ.App.—Tyler 1971, no writ). Where the motion for continuance is grounded upon the absence of a party or a witness from the proceeding, the principles often applied are those set forth in Erback v. Donald, 170 S.W.2d 289, 291 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w. o. m.) where it was said:

“ * * * A motion for such a continuance is addressed largely to the discretion of the trial court. His action will not be disturbed on appeal unless there has been a clear abuse of discretion. Mere absence of the party is not enough to entitle him to a continuance. It must be shown both that the absent party had a reasonable excuse for not being present, and that his absence resulted to his prejudice. A reasonable excuse for the absence will not require a reversal where no prejudice is shown. A continuance may properly be denied if the motion therefor fails to show that by the exercise of reasonable diligence the party’s testimony could not have been made available by taking his deposition. The testimony of the absent party must be material, and must, we think, be such as would be admissible under the pleadings. * * ”

To some extent the foregoing principles were brought forward in Rule 252 of the Texas Rules of Civil Procedure, especially insofar as the requisites of the affidavit accompanying a motion for continuance is concerned. The foregoing rule has been interpreted to require that the applicant for a continuance recite inter alia that he has used due diligence, stating such diligence and the cause of failure, if known. Wilemon v. State, 385 S.W.2d 573, 579 (Tex.Civ.App.—Dallas 1964, rev’d on other grounds 393 S.W.2d 816 (Tex.1965). Furthermore, a statement in the affidavit of the mere conclusion that diligence was used is insufficient to satisfy Rule 252. Echols v. Brewer, 524 S.W.2d 731, 734 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); American Bankers Insurance Company v. Fish, 412 S.W.2d 723 (Tex.Civ.App.—Amarillo 1967, no writ).

Unquestionably the right of a defendant to be present at the trial and to testify in his behalf is a very valuable right which should' not be denied when his absence from trial is beyond his control. National Insurance Co. of America v. Broome, 401 S.W.2d 862, 865 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.) citing Stoneberger v. Bishkin, 236 S.W. 782, 783 (Tex.Civ.App.—San Antonio 1922). To retain this right the party claiming such right must comply with Rule 252. In the case of Doyle v. Doyle, supra, a wife sued her husband for divorce and custody of their child while the husband was an inmate in the Texas Department of Corrections. The trial was before a jury and the motion for continuance stated only that the defendant was unable to appear because of his incarceration. No attempt was made to set forth the matters to which he would testify as a witness. As in the instant case, there was no statement of facts and consequently no way for the appellate court to know what testimony the trial court heard as grounds for divorce and custody of the child. In Doyle the court consequently found no abuse of discretion by the lower court. Doyle v. Doyle, supra; see also Berry v. Berry, 257 S.W.2d 780 (Tex.Civ.App.—Eastland 1953, no writ); Condry v. Mantooth, 460 S.W.2d 513 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ).

In the instant case few, if any, of the requisites found in Rule 252 or in the cases cited hereinabove, were met. There was no showing of the diligence used by appellant’s attorney to contact the appellant nor did appellant offer any excuse for failure to appear at the trial. Moreover, there was nothing to' show what testimony could be expected from appellant had he been' present at the- trial. At most, the motion for continuance contained allegations constituting mere conclusions in support of the foregoing requisites'.

As mentioned hereinabove, under the local rules once appellant had announced ready at docket call, he was required to hold himself in readiness to proceed to trial immediately upon notice. By implication it must be assumed that at the preliminary hearing on August 20,1975, the appellant knew of the trial setting for the week of September 2, 1975. Even though the court at the preliminary hearing may' have remarked that the case “probably” would not be reached during the week of September 2nd, this statement would not excuse appellant from keeping in contact with his attorney or otherwise ascertaining the trial date. It was the duty of the appellant to exercise diligence in keeping his attorney advised of his whereabouts and in keeping himself informed about the disposition of his case. As we view the record no showing of such diligence was offered.

For the reasons stated the judgment of the trial court is affirmed.

      . Rule 6 reads, in part as follows:
      “Unless otherwise designated by notice posted on the courthouse door, on Friday at 9:00 A.M., preceding each week of the assignment, both the jury and non-jury cases for the following week shall be called. If any party to a case duly set on the docket is not ready for trial at the time the docket is called and no binding agreement has been reached between all parties to the case to pass or to continue the case, such party not being ready shall file a motion for continuance. All such motions for continuance shall be heard at such time as the Court shall specify.
      “After an Announcement of Ready has been made in a case, each party shall hold himself in readiness to proceed to trial immediately upon notice, . . .”

      . The docket showed this hearing to have been held on August 20, 1975.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    KING OPTICAL, Formerly Terminal-Hudson Corporation, Appellant, v. AUTOMATIC DATA PROCESSING OF DALLAS, INC., Appellee.
    No. 5580.
    Court of Civil Appeals of Texas, Waco.
    Sept. 23, 1976.
    Rehearing Denied Oct. 14, 1976.

      Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellant.

      Golden, Potts, Boeekman & Wilson, Dallas, for appellee.
   HALL, Justice.

The appellee, a computer data processing company, brought this suit against the appellant for an alleged balance due for performing payroll, general ledger, accounts payable, daily sales report, and cash disbursement report data processing services for the appellant under an oral contract. After a trial without a jury, the court awarded the appellee $27,942.91 for services rendered under the contract, prejudgment interest on amounts accruing under the contract during 1972 and 1973, attorneys’ fees in the amount of $11,025.00 plus attorneys’ expenses in the sum of $1,074.52, costs of court, and interest on the judgment. Additionally, the court ordered a remittance by the appellee of $3,000.00 of the awarded attorneys’ fees if no appeal was taken by the appellant, and a remittance of $1,000.00 of the attorneys’ fees if the appellant appealed only to the Court of Civil Appeals but not to the Supreme Court.

The appellant contends that the evidence is legally and factually insufficient to show that it agreed to pay the appellee for daily sales reports and cash disbursement reports; that the evidence is legally and factually insufficient to show that the appel-lee’s usual and customary charges for the services it allegedly rendered for the appellant total $27,942.91; that the court erred in striking the appellant’s third and fourth amended original answers merely because they were filed within seven days of the date of trial; that the court’s allowance of prejudgment interest is not supported by either pleading or statute; that the court erred in awarding the appellee “attorney’s expenses” in the absence of statutory authority or an agreement between the parties supporting the award; and that the award of attorney’s fees is erroneous because (1) there is no evidence that the ap-pellee presented its claim to the appellant for payment at least 30 days prior to the judgment and thereby met the required statutory predicate, (2) there is no evidence the fees allowed are reasonable, and (3) the unconditional allowance of attorneys’ fees to the appellee in the event of an appeal by the appellant is an illegal restraint upon its right of appeal.

We modify the judgment by deleting the awards of prejudgment interest, attorneys’ expenses, and attorneys’ fees on appeal.

Without dispute in the record, after negotiations between the parties and. proposals by the appellee, the appellant requested the appellee to service the appellant’s payroll, accounts receivable, general ledger and accounts payable. The appellee did so. The appellee also rendered daily sales report and cash disbursement report services for the appellant and charged the appellant for these services separately from the charges made for the general ledger and accounts payable services. It was the appellant’s position on the trial that the agreement of the parties regarding the general ledger service included the daily sales report; that the agreement regarding the accounts payable service included the cash disbursement report; that the parties’ agreement set maximum charges to be made by the appellee for general ledger and accounts payable services; and that a part of the recovery now sought by the appellee is for charges in excess of those máximums. Of course, the appellee directly disputed these contentions. The trial court made express findings supporting the appellee’s positions on these questions, and these are the findings that the appellant asserts are not supported by legally or factually sufficient evidence.

There is evidence of the following facts: The appellee markets “package services” which include payroll, accounts receivable, accounts payable, and general ledger. These packages can be fitted to the records of any business without extraordinary programming. Any services falling outside these packages must be custom-programmed. Daily sales reports and cash disbursement reports are not parts of the package-programs, and specifically are not included in the accounts payable and general ledger programs of the package services. If desired by a business, these reports must be custom-programmed. At separate times, the appellant purchased the appellee’s package services for its payroll, accounts receivable, accounts payable, and general ledger. The appellee’s proposals, accepted by the appellant, included a one-time installation charge for each service and monthly charges thereafter based upon each item or transaction under the service plus additional charges for changes, additions, or deletions. The proposals contained projected monthly estimates of costs based upon a review of the appellant’s records, but the parties did not understand or agree these estimates were maximum charges that would be made by the appellee. The cash disbursements report was requested by the appellant separately from the accounts payable, and the program for cash disbursements was developed for the appellant by the appellee about six months before the appellant began using the appellee’s accounts payable services. The daily sales report was requested by the appellant separately from the general ledger. It did not begin with the general ledger service, but followed it by about two months. The services for the daily sales reports and cash disbursement reports were specifically designed by the appellee to fit the appellant’s specifications. The appellant was billed monthly by the appellee. The appellant has paid some of the appellee’s monthly charges for services for daily sales reports and cash disbursement reports, but has not paid others. It has also paid a part of the appellee’s charges for other services rendered. After the appellee ceased its services because of the appellant’s delinquency, the appellant assured the appellee it would be paid in full for the services rendered. Later, the appellant disputed some of the charges, and this lawsuit followed.

The appellee’s president testified in detail about the services rendered for the appellant and the charges for the services which remain unpaid, and to the fact that all offsets and credits have been allowed the appellant. His testimony supports the award of $27,942.91. During his testimony he identified and referred to copies of invoices and statements rendered to the appellant by the appellee. The statements and invoices were subsequently admitted into evidence. The appellant asserts that these instruments are hearsay because the record fails to show they fall within the so-called Business Records Act, Art. 3737e, Vernon’s Ann.Tex.Civ.St. The appellant also contends that the witness’s testimony assertedly based on the instruments is also hearsay. This contention was not made on the trial. The record shows that the witness has been closely involved in the dealings, discussions, and differences between the parties from their beginnings. It does not affirmatively show that his testimony was not based upon personal knowledge. Accordingly, this testimony may not now for the first time be condemned as hearsay. 24 Tex.Jur.2d 64, Evidence, § 561. Because this testimony supports the court’s findings relating to the appellant’s delinquencies, the complaints that the statements and invoices are hearsay and were improperly admitted into evidence are immaterial.

The evidence we have recited is legally sufficient to support the challenged findings. A review of the entire record shows the findings are not against the great weight and preponderance of the evidence.

When the case was called for trial, the court refused the appellant leave to, file both its third and fourth amended original answers solely because they were tendered for filing within seven days of the date of trial. This ruling violated Rule 63, Vernon’s Tex.Rules Civ.Proc., which provides that leave for filing amended pleadings “offered for filing within seven days of the date of trial or thereafter . . . shall be granted by the judge unless there is a showing that such amendment will operate as a surprise to the opposite party.” It was an abuse of discretion. Although the appellant has assigned this error for reversal, it has failed to indicate how it was harmed by the ruling. Insofar as the record shows, no harm resulted. Harmless error will not support the reversal of a judgment. Rule 434, Vernon’s Tex.Rules Civ.Proc.

The prejudgment interest allowed in the judgment was not pleaded for by the appellee. The appellant’s challenge to the award on this ground is sustained. By failing to plead for prejudgment interest the appellee waived its right to it. Black Lake Pipe Line Co. v. Union Const. Co., 538 S.W.2d 80, 96 (Tex.Sup., 1976). The appel-lee argues that its general prayer for relief supports the award of prejudgment interest under the provisions of Article 5069 — 1.03, Vernon’s Ann.Tex.Civ.St. We disagree. This statute provides for prejudgment interest on written contracts and open accounts. The appellee brought this suit to recover on an oral contract for services rendered and it was tried on that theory. A claim based on services is not a claim on an open account within the meaning of Article 5069-1.03. McDaniel v. National Steam Laundry Co., 112 Tex. 54, 244 S.W. 135, 137, 112 Tex. 54 (Tex.Com.App., 1922, opinion adopted); Routon v. Phillips, 246 S.W.2d 223, 227 (Tex.Civ.App.—Fort Worth 1952, writ ref., n.r.e.).

In effect, the judgment awards $8,025.00 attorneys’ fees through the trial of the case, $2,000.00 additional attorneys’ fees if the appellant appeals to the Court of Civil Appeals, and $1,000.00 additional attorneys’ fees if the appellant appeals to the Supreme Court. As we have said, the judgment also allows the appellee $1,074.52 for “attorneys’ expenses.”

Article 2226, Vernon’s Ann.Tex.Civ.St., provides as follows:

Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non-jury eases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.

The appellant says there is no evidence to support the court’s finding that “more than 30 days prior to the filing of this lawsuit” the appellee “presented its claim for $27,942.91” to the appellant for payment. We overrule this contention. The appellee’s president testified that “around a month or two” after the appellee ceased doing work for the appellant (in 1973) he met with the appellant’s representative and discussed with her “the amount of money owed us and how they were going to pay it and when,” and that she told him “she would get us a check that week” for the “total unpaid balance.” This suit was filed on May 10, 1974, and the judgment was rendered in 1975.

Article 2226 does not require that the presentment of claim be made in any particular manner. All that is required is an assertion of the right to be paid and a request for payment. Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493, 500 (1958). The appellee’s oral request for payment met the provision of the statute.

Statutes authorizing a recovery of attorney’s fees are penal in nature and are strictly construed. Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex.Sup., 1962). Article 2226 provides for an award for reasonable attorneys’ fees, but it does not authorize a separate allowance for “attorney’s expenses.” The court’s award of $1,074.52 for this purpose in addition to attorneys’ fees is therefore improper.

The appellant’s argument that there was no testimony that any of the attorneys’ fees awarded are reasonable fees is correct. The appellee tacitly admits this in its brief. However, the record does show the number of hours the appellee’s attorneys have devoted to the case, the number of pleadings they have filed, and the one day appearance in court for this trial. It also shows the court was familiar with the case file. Because this was a non-jury trial the court was authorized by Article 2226, supra, to take judicial notice of the case file and the current State Bar Minimum Fee Schedule and accept the amounts prescribed in the Schedule as “prima facie evidence of reasonable attorney’s fees.” Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857, 859 (Tex.Sup., 1975). The Schedule and the record support the award of $8,025.00 for attorneys’ fees through the trial of the case as being a reasonable amount.

We agree with the appellant that a trial court may not penalize a party for taking a successful appeal by taxing him with attorneys’ fees if he takes it. The awards of attorneys’ fees in this case in the event of appeals by the appellant are unconditional and do not purport to turn upon whether or not the appellant succeeds in the appellate courts. The awards are improper.

The remaining points and contentions of both parties are overruled.

The awards for prejudgment interest, for attorneys’ expenses, and for attorneys’ fees in the event of an appeal aré set aside and deleted from the judgment. With these modifications the judgment is affirmed.


author: JAMES, Justice.

text:
    Richard D. HOLIFIELD et al., Appellants, v. NATIONAL CYLINDER GAS DIVISION OF CHEMETRON CORP. et al., Appellees.
    No. 5587.
    Court of Civil Appeals of Texas, Waco.
    Sept. 23, 1976.
    Rehearing Denied Oct. 14, 1976.

      John E. Collins, McGuire, Levy, Collins & McCurley, Irving, for appellants.
    Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, Lewis R. Sifford, Anderson, Henley, Shields, Bradford, Pritchard & Miller, Dallas, for appellees.
   OPINION

JAMES, Justice.

This is a suit by two workman’s compensation claimants against two “third parties” for personal injuries growing out of the explosion of an allegedly defective oxygen cylinder. The Defendants, Appellees herein, pleaded the two year statute of limitations and moved for summary judgment. The trial court entered summary judgment that Plaintiffs take nothing, from which Plaintiffs appeal. We affirm.

This is a damage suit brought by Plaintiff-Appellants Richard D. Holifield and Al-eroy Zoller against National Cylinder Gas Division of Chemetron Corporation, and Texas Welding Supply, Inc., arising out of personal injuries sustained by Plaintiffs. On or about May 25, 1966, Plaintiffs Holi-field and Zoller were working for Capital Refrigeration, Inc., in Dallas, Texas, installing air conditioning units in motor vehicles, at which time they were attempting to fill some oxygen cylinders when one of the cylinders exploded, amputating both of Hoi-¡field’s legs just below the main trunk of his body and amputating both of Zoller’s legs at the knee level. At the time of their injuries, Holifield was 19 years old and Zol-ler was 63 years old. The Defendants National Cylinder and Texas Welding Supply were alleged to be the manufacturers, suppliers, and servicing people of the oxygen cylinder which exploded; and Plaintiffs’ pleadings alleged two theories of recovery against said Defendants, to wit: (1) negligence, and (2) violation of certain implied warranties of fitness of said oxygen cylinder. In this same suit Plaintiffs sued their employer’s workman’s compensation carrier, American Motorists Insurance Company, to. determine Plaintiffs’ right to future medical benefits with respect to the “third party” case they had filed against Defendants National Cylinder and Texas Welding Supply. The answer of Defendants National Cylinder and Texas Welding Supply included a special pleading of the two year statute of limitations.

Plaintiffs did receive their workman’s compensation benefits from American Motorists, the carrier, but the payment of such benefits were handled differently for each Plaintiff, as more particularly hereinafter pointed out.

This suit was filed March 16, 1972.

As stated, the Defendants National Cylinder and Texas Welding Supply filed motions for summary judgment upon the theory that Plaintiffs’ cause of action was barred by the two year statute of limitations. The trial court severed the Plaintiffs’ cause of action against the carrier, American Motorists, from the suit against National Cylinder and Texas Welding Supply, and entered summary judgment that Plaintiffs Holifield and Zoller take nothing against National Cylinder and Texas Welding Supply, from which Plaintiffs appeal.

Plaintiff-Appellants assert error in the trial court’s granting the summary judgment because (1) The statute of limitations was tolled during the pendency of Plaintiffs’ workman’s compensation claims, and (2)That the two year statute of limitations for personal injuries (Article 5526, Vernon’s Ann.Texas Statutes) does not apply, but instead the four year statute of limitations (Article 2.725 of the Business and Commerce Code) applies, insofar as Plaintiffs’ cause of action based upon “implied warranty” is concerned. We overrule all of Appellants’ points and contentions and affirm the trial court’s judgment.

Since the key question in the case concerns the statute of limitations problem, the following chronology sets out the significant dates for each Plaintiff-Appellant, to wit:

Holifield:

(1) Date of injuries — May 25, 1966.

(2) Original compromise settlement agreement approved by the Industrial Accident Board — April 18, 1967.

(3) Accelerated payment period ends on Holifield — September 22, 1969.

(4) Order of Industrial Accident Board entered modifying original Board’s order of April 18, 1967 which limited future medical benefits on Holifield — February 16, 1970. In other words, the original compromise settlement agreement approved by the Board on April 18, 1967, limited Holifield’s future medical benefits to 34 weeks. The order of the Board dated February 16,1970, amended the original Board’s order so as to remove the limitations on future medical benefits as provided by Article 8306, Section 7, and Article 8307, Section 5, Vernon’s Ann.Civil Statutes.

Plaintiffs’ suit filed against Defendants National Cylinder and Texas Welding Supply — March 16, 1972.

Zoller:

(1) Date of injuries — May 25, 1966.

(2) Date of the letter to the Industrial Accident Board from American Motorists (the Plaintiffs’ employers’ workman’s compensation. carrier) outlining payments to Zoller, a copy of which letter was sent to Zoller — December 12, 1967. This letter is significant because in it the carrier expressly assumes the obligation of total and permanent workman’s compensation benefits to Zoller in the following language:

“We are paying Mr. Zoller $35.00 per week, having paid the 81st week for the period ending December 13,1967 and, since Mr. Zoller is, by statute, totally and permanently disabled, there remains 320 weeks to be paid. American Motorists Insurance Company recognizes this case to be, without question, a total and permanent case and has felt that it is to the best interest of Mr. Zoller that his benefits be paid weekly _ _ (emphasis supplied).

(3) Accelerated payment period ends on Zoller—September 16, 1970.

(4) Date of filing Plaintiffs’ suit against Defendants National Cylinder and Texas Welding Supply—March 16, 1972.

The main thrust of the first portion of Plaintiff-Appellants’ arguments is to the effect that the statute of limitations was tolled because of the entitlement of Plaintiffs to future medical benefits, and that therefore their suit was not barred by the two year statute of limitations. We overrule this contention. The events pertinent to this suit occurred prior to the 1973 amendment to Section 6a, Article 8307, Vernon’s Ann.Civil Statutes. Section 6a prior to the 1973 amendment provided in part as follows:

“Where the injury . . . was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employee may at his option proceed either at law against that person ... or against the association . . . but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law.”

Appellants contend here that since they are entitled to future medical benefits, that limitations do not commence to run until all such benefits to which they may be entitled have been paid. In Watson v. Glens Falls Insurance Co. (Tex.1974), 505 S.W.2d 793, our Supreme Court held that the Legislature did not intend to include future medical payments within the election provision of Section 6a. Since Section 6a prior to the 1973 amendment did not apply to future medical expenses, the statute of limitations was not tolled in the case of either Appellant, and the causes of action of Appellants against Appellees are barred by the two year statute of limitations; Article 5526, Section 6, V.A.C.S.

In Holifield’s case, his compromise settlement agreement with the carrier was approved by the Industrial Accident Board on April 18, 1967, and the statute of limitations began to run on his third party action against the Appellees herein from this date. Brooks v. Lucky (Beaumont, Tex.Civ.App.1957), 308 S.W.2d 273, NRE; Hollins v. Lone Star Gas Co. (Beaumont, Tex.Civ.App.1958), 308 S.W.2d 276, NRE; Judice v. Sumner Sollitt Co. of Texas (Beaumont, Tex.Civ.App.1961), 346 S.W.2d 135, NRE. Since this suit was filed against Appellees more than two years after April 18, 1967, to wit, on March 16, 1972, Holifield’s cause of action against Appellees is barred by limitations.

In Zoller’s case, as stated, the carrier wrote a letter to. the Industrial Accident Board bearing date of December 12, 1967, with a copy furnished to Zoller, the pertinent language of which is hereinabove quoted, in which the carrier expressly and unequivocally assumed the payment of total and permanent benefits for Appellant Zol-ler. The statute of limitations began to run concerning Zoller’s cause of action against Appellees herein on December 12, 1967, and since the instant suit was filed against Ap-pellees more than two years after December 12, 1967, to wit, on March 16, 1972, Zoller’s cause of action was barred by limitations. In other words, Zoller’s cause of action accrued against Appellees on the date the carrier assumed liability for total and permanent benefits, to wit, on December 12, 1967. Texas Employers’ Insurance Assn. v. Texas & Pacific Railway Co. (Eastland, Tex.Civ.App.1939), 129 S.W.2d 746, writ dismissed, judgment correct; Buss v. Robison (Amarillo, Tex.Civ.App.1952), 255 S.W.2d 339, NRE; Yeary v. Hinojosa (Houston 1st, Tex.Civ.App.1957), 307 S.W.2d 325, NRE; Seward v. Robinson (El Paso, Tex.Civ.App.1976), 535 S.W.2d 778, NRE.

With reference to the Supreme Court’s holding in Watson v. Glens Falls Ins. Co. (Tex.1974), 505 S.W.2d 793, to the effect that an election to pursue a third party did not constitute an election which would cut off future medical benefits under the Workmen’s Compensation Act, Appellants in the case at bar try to avoid the application of the Watson holding by contending that our Supreme Court intended Watson to be prospective only in effect. We do not agree. There is no language used in Watson to indicate that it was intended to be prospective only in effect. Moreover, Watson did not overrule any pri- or holdings of the Supreme Court or any other Texas court. Additionally, cases bearing upon Section 6a insofar as future medical benefits are concerned, decided subsequent to and in the light of the Watson holding, clearly are based upon the assumption that the Watson holding was not intended to be prospective only. See Finch v. Texas Employers Insurance Assn. (Texarkana, Tex.Civ.App.1976), 535 S.W.2d 201, NRE; Seward v. Robinson (El Paso, Tex.Civ.App.1976), 535 S.W.2d 778, NRE. Therefore, in our opinion our Supreme Court did not intend for the Watson holding to be prospective only in effect, but applies to the case at bar.

Finally, Appellants contend that Article 5526, V.A.C.S., the two year statute of limitations concerning suits for personal injuries, does not apply to Appellants’ suit upon the implied warranty theory against Appellees, but instead Article 2.725 of the Business and Commerce Code applies, citing Morton v. Texas Welding and Manufacturing Co. (S.D.Tex.1976), 408 F.Supp. 7. Article 2.725 provides in part: “An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.”

We do not agree with Appellants’ contention in this regard. The “implied warranty” sued upon in the case at bar is not predicated upon breach of contract, but is grounded instead in tort. See Jacob E. Decker & Sons, Inc. v. Capps (1942), 139 Tex. 609, 164 S.W.2d 828; Goelz v. Wadley Research Institute and Blood Bank (Dallas, Tex.Civ.App.1961), 350 S.W.2d 573, NRE; Becker v. Volkswagen of America (1975), 52 Cal.App.3d 794, 125 Cal.Rptr. 326; Doss v. Apache Powder Co. (5th Cir. 1970), 430 F.2d 1317. Therefore, we hold Article 5526, the two year statute of limitations applies to the case at bar.

We have carefully considered all of Appellants’ points and contentions, and overrule same as being without merit. Since we hold that the cause of action of each Appellant against Appellees is barred by the two year statute of limitations, the summary judgment entered by the trial court was proper, and we accordingly affirm same.

AFFIRMED.


author: McDONALD, Chief Justice.

text:
    Delmare E. WINDHORST, d/b/a Tri-Way Water Supply and Windy’s Water Works, Appellant, v. ADCOCK PIPE AND SUPPLY, Appellee.
    No. 5624.
    Court of Civil Appeals of Texas, Waco.
    Sept. 23, 1976.
    Rehearing Denied Oct. 28, 1976.

      Donald J. Mach, San Antonio, for appellant.
    Bradford F. Miller, San Antonio, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Windhorst from judgment for plaintiff Adcock for $713.17 plus $250. attorneys’ fees, in a suit on an open account.

Plaintiff Adcock filed suit against defendant Windhorst for amounts allegedly due on an open account. Defendant counterclaimed seeking recovery of double the amount of interest charged and cancellation of the principal of the account alleging the interest rate charged by plaintiff was usurious. Both parties moved for summary judgment which was overruled by the trial court.

After trial before the court without a jury the trial court rendered judgment for plaintiff, and denied defendant any recovery on his counterclaim.

Defendant appeals contending:

1) The trial court erred in denying his counterclaim based on usurious interest.
2) The trial court erred in rendering judgment for plaintiff based on an open account.

Defendant who operates a waterworks opened an account, on March 5, 1974, with plaintiff who sells pipe and pipe supplies. Thereafter charges, credits and payments were entered, and on September 30, 1974 the balance owing plaintiff was $608.42. On September 30, 1974 plaintiff charged defendant interest in the amount of $9.13, and thereafter made interest charges each month. No interest was ever paid by defendant. There was no written or oral contract between the parties regarding interest on unpaid balances. The interest charged by plaintiff was 1V2% per month or 18% per annum, and was assessed and charged from September 1974, to June 30, 1975. Defendant complained to plaintiff the interest charges were illegal.

Article 5069-1.03 Interest legal rate applicable, provides:

“When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on * * * all open accounts, from the first day of January after the same are made.”

Article 5069-1.06 Penalties, provides:

“1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.”
“2) Any person who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all other charges and shall pay reasonable attorney fees set by the court * * *
“3) All such actions brought under this Article shall be brought * * * within four years from the date when the usurious charge was received or collected in the county of defendant’s residence, or in the county where the interest in excess of the amount authorized by this Subtitle has been received or collected, or where such transaction had been entered into or where the parties who paid the interest in excess of the amount authorized by this Subtitle resided when such transaction occurred, or where he resides.”

As noted plaintiff “charged” defendant with 18% interest, which is more than authorized by the Statute; there was no agreement between the parties that such interest be paid; and no interest was ever in fact paid by defendant or collected or received by plaintiff.

Plaintiff contends that the mere charging of interest in excess of the authorized amount is not actionable unless charged pursuant to agreement of the parties, or actually collected.

We note that sections 1 and 2 of Article 5069-1.06 supra provides that any person who “contracts for, charges or receives interest” greater than the amount authorized by law, or in excess of double the amount allowed by law is subject to the penalties provided.

But in Section 3 the Article provides that actions brought under the article be brought within four years from the date “the usurious charge was received or collected.”

We think reading Article 5069-1.06 as a whole that the “charging” of interest in excess of the amount authorized is not actionable unless charged pursuant to agreement of the parties, or actually collected.

All defendant’s points are overruled.

AFFIRMED.

      . Emphasis added.


author: SPURLOCK, Justice.

text:
    The STATE of Texas, Appellant, v. CITY OF DENTON, Appellee.
    No. 17787.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 24, 1976.
    Rehearing Denied Oct. 22, 1976.

      John L. Hill, Atty. Gen. of Texas, and David R. Thomas, Asst. Atty. Gen., Austin, for appellant.
    Jack Gray and John L. Sullivan, Paul C. Isham, City Atty., Denton, for appellee.
   OPINION

SPURLOCK, Justice.

This action was brought by the State of Texas on behalf of North Texas State University against the City of Denton to secure the closing and abandoning, by eminent domain or otherwise, of two blocks of Prairie Street and two blocks of Avenue D, both public streets within the corporate limits of the City of Denton. The trial court granted the City’s Motion for Summary Judgment and held that the City of Denton, Texas, a Home Rule City under the Constitution and laws of the State of Texas, has as a matter of law, exclusive dominion and control over the public streets of the City of Denton, including the property involved in the suit, and that, as a matter of law, North Texas State University, by or through the State of Texas, has no power of eminent domain or dominion over such streets. The State appeals from this judgment.

Judgment affirmed.

We hold that North Texas State University, by or through the State of Texas, could not acquire the interest of the City of Denton in property currently used as City streets because it had no power of eminent domain, or exclusive dominion over, such public streets.

During oral submission the parties agreed that this is a case of first impression, that there are no fact issues involved, that the case should be decided strictly on the legal question above described, that the title to all City streets is in the State, that the City of Denton controls streets within its corporate limits as trustee for the public, and that these streets are within the corporate limits of said City.

The State seeks to establish the right of the University to use these streets for senior college purposes. Prairie Street runs east-west, and Avenue D runs north-south. They intersect in the center of the 4-block area the University desires to use for its health, physical education, and recreation center. The University owns or has the exclusive possessory rights to all properties abutting the segments of the streets here in question.

The Board of Regents of the University, by appropriate action, requested the Attorney General of Texas to institute the necessary legal steps to accomplish their objective. The suit was filed by the State to confirm its title in the streets it sought to have closed or, in the alternative, to invoke its sovereign power of eminent domain to acquire any interest the City of Denton may have in the land now occupied by the segments of those streets.

The State relies upon the rule of law stated in Section 2.2, Nichols on Eminent Domain (1975), to the effect that, “If the sovereign ... on its own behalf and for its own sovereign purposes, seeks to acquire such property by eminent domain, the character of the ‘res’ as public property, generally, has no inhibiting influence upon the exercise of the power.”

It then takes the position that the University is an arm of the State and that by the terms of the Texas Education Code, Sections 95.30 and 105.41, such University has the power of eminent domain.

A careful reading of the above Section 2.2 concerning the taking of public property by eminent domain, reveals the fact that most of the decisions of other jurisdictions are based upon the construction of statutes in the jurisdiction where the proceedings were had.

The general rule is stated in 35 A.L.R.3d 1293, at pages 1334 and 1341, “Condemnation — Of Public Entity’s Land”: “It is a generally accepted rule that property already devoted to a public use cannot be appropriated for another public use inconsistent with the prior use absent express legislation to that effect, or a necessary implication of such power from general powers which have been granted the particular governmental unit in question, and this rule is applicable to condemnation by a governmental subdivision of a state, or its agency, of the property of another such subdivision or agency.”

Therein the author states that the cases turn upon whether the governmental body involved in any particular case has been given the power, under the relevant statutes, to condemn the particular property sought. The author cautions the reader to carefully examine the statutes of the particular states in order to not draw an unwarranted conclusion.

It then becomes the duty and it is the province of the Court to construe the statutes here involved.

The power of eminent domain is vested in the sovereign State of Texas limited only by the due process guarantee that the taking is for a public use and that just compensation shall be paid to the one from whom the property is taken. Through the legislature it may delegate this power with such limitations as it chooses to impose.

An analysis of the language used and the construction thereof by the courts in regard to the power of eminent domain granted by the legislature to various arms and subdivisions of the State will assist this Court in determining the solution of the controversy here before us.

POWERS OF HOME RULE CITIES

Under the express provisions of Section 16 of Article 1175, V.A.T.S., the City of Denton, as a Home Rule City, has “exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards” within the City. Under Section 18 of said Article, Denton has the power “to control, regulate, and remove all obstructions or other encroachments or encumbrances on any public street, alley or ground. . . . ” Section 15 of said Article gives Home Rule Cities the power of eminent domain and the right to take the fee in lands so condemned, and such power and authority shall include the right to condemn public property for such purposes.

In City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601 (Tex.Sup., 1952) that Court held that Tyler, a Home Rule City, had the express authority to condemn public property for street purposes. In that case the Court held that the City could open a street through an area within the City which the county had previously dedicated as a public square. It cites the above Section 15 of Article 1175, and emphasizes that the City has the power and authority to condemn public property for that purpose.

In The City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (Tex.Sup., 1956), that Court stated that the interest of Home Rule Cities is as follows: “Thus the interest which a city has in its streets and alleys is unique and legally sui generis. It has no proprietary title but exercises many of the rights of title on behalf of the public. . The control is so exclusive that the city is liable to the public for failure to properly maintain the street as a safe way of travel. . This interest has been regarded as sufficient to qualify as a possessory right which will support an action in trespass to try title.” (Emphasis added.)

See also both opinions in Sierra Club v. Austin Independent School District, 489 S.W.2d 325 (Tex.Civ.App., Austin, 1972, reversed on other grounds, 495 S.W.2d 878, Tex.Sup., 1973); and the opinion in City of Fort Worth v. Taylor, 162 Tex. 341, 346 S.W.2d 792 (Tex.Sup., 1961).

POWER TO CONDEMN GRANTED TO THE TEXAS TURNPIKE AUTHORITY AND THE STATE HIGHWAY COMMISSION

Article 6674v established the Turnpike Projects. Section 5(h) thereof empowered the Authority to acquire public lands by right of condemnation. In Texas Turnpike Authority v. Shepperd, 154 Tex. 357, 279 S.W.2d 302 (Tex.Sup., 1955), that Court held that this Act of the Legislature empowered this Authority to condemn public and private property whether or not located within boundaries of any city or other subdivision, as well as property already devoted to public use. It further held that the Act authorized this Authority to change and relocate any street under the supervision of the State, or any county, or any political subdivision, or of any city or town. By express language contained in this Act of the Legislature the right of Home Rule Cities to control the streets was modified and that authority was delegated to the Turnpike Authority for the purposes therein stated. Section 8 — Condemnation of property — further granted the Texas Turnpike Authority all the power that is available to the State Highway Commission.

The Legislature enacted Art. 6674w, V.A. T.S., which granted the Texas Highway Commission extensive powers, including the right to acquire property by condemnation whether it be public or private and wherever located. Section 5 thereof authorized the Commission to exercise any power within the limits of any county, incorporated city, town or village, including Home Rule Cities, as authorized by this Act. “ . . . such act or exercise of power shall qualify and render inexclusive the dominion of such counties, cities, towns or villages, including Home Rule Cities, with respect to the specific streets, alleys, and other public ways affected by such act or exercises of power,

In Hale v. City of Dallas, 335 S.W.2d 785 (Tex.Civ.App., Dallas, 1960, ref., n. r. e.) that Court had before it a construction of the above statute and held that the Highway Commission had exclusive dominion and control over a certain street in the City of Dallas. Dallas is a Home Rule City. In discussing its ruling, that Court stated that the following rules are applicable (p. 787): “ ‘The highways of the state, including streets of cities, belong to the state, and the state has full control and authority over them. They “are the property of and for the use of the state, which through its Legislature, has absolute control over same, which control it may or may not, from time to time, delegate to the local authorities.” Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915; Travis County v. Trogdon, 88 Tex. 302, 31 S.W. 358; Delta County v. Blackburn, 100 Tex. 51, 93 S.W. 419, 422; Coleman v. Thurmond, 56 Tex. 514; West v. City of Waco, (Sup.Ct.) 116 Tex. 472, 294 S.W. 832.’ ”

It quoted from Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915, 918, as follows: “ ‘The establishment of public highways being primarily a function of government belonging to the state, the right to establish them resides primarily in the Legislature, and, in the absence of constitutional restrictions, the Legislature may exercise that right direct or delegate it to a political subdivision of the state, or to such other agency or instrumentality, general or local in its scope, as it may determine. The exercise of this right by a political subdivision of the state, or by local officers, is founded upon statutory authority therefor. The Legislature may exercise possession of public roads and control over them, by and through such agencies as it may designate. * * * > >>

It then stated that since Art. 6673 to 6674w-5 is primarily involved, “Particularly relevant to our problem is the recent Supreme Court case of State of Texas v. City of Austin et al., 160 Tex. 348, 331 S.W.2d 737, 741, holding in part: ‘ * * * For many years the cities and towns of Texas have enjoyed exclusive dominion and control over the streets, alleys and other public places within their respective corporate limits, but this was pursuant to a statutory delegation of authority. See Articles 1016, 1146 and 1175, Vernon’s Ann.Tex.Civ.Stat. The Legislature acting for the state has primary and plenary power to control and regulate public roads and streets. It may delegate that power to counties or municipal corporations, but such a grant of authority may be revoked or modified at any time. See Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915; West v. City of Waco, 116 Tex. 472, 294 S.W. 832; 64 C.J.S. Municipal Corporations §§ 1686, 1689. The statutory power of cities and towns over public ways within their corporate limits has now been abridged by Sections 2 and 5 of House Bill 179. See Articles 6674w-1 and 6674w-5, Vernon’s Ann.Tex.Civ.Stat. It is there provided that the State Highway Commission shall have the power to construct, maintain and operate designated state highways in any area of the state, whether in or outside the limits of any municipal corporation, and that the exercise of such power shall qualify and render inex-clusive the dominion of any city or town with respect to the specific streets, alleys or other public ways affected thereby.’ ” (Emphasis added.)

POWER OF A SUBDIVISION OR ARM OR BRANCH OF THE- GOVERNMENT TO ACQUIRE PROPERTY BY CONDEMNATION WHICH WAS GRANTED TO IT IN GENERAL TERMS BY THE LEGISLATURE BUT WITHOUT BEING GIVEN SPECIFIC POWER TO CONDEMN PUBLIC PROPERTY OR PROPERTY OF ANOTHER BRANCH OF THE GOVERNMENT

In the Sierra Club v. Austin Independent School District cases, supra, the courts held that the Austin Independent School District had been granted the power to acquire the fee in real property for school purposes by the exercise of eminent domain. They held that it did not have the power to condemn dedicated public park lands belonging to the people of the City of Austin. The court stated that Home Rule Cities had the power to condemn public property and that the Highway Commission was also so empowered. The Legislature has specifically given each this power. The Court of Civil Appeals stated at page 334 that: “The Legislature could have made a similar broad grant to school district if it had been the legislative purpose to do so.”

POWER TO CLOSE CITY STREETS GIVEN TO STATE SUPPORTED UNIVERSITIES IN COUNTIES WITH POPULATION OVER 1,500,000 AS ANOTHER INDICIUM OF LEGISLATIVE INTENT

The Legislature apparently was of the opinion that it had not granted state supported colleges or universities the power to acquire by condemnation streets or alleys within a city. In its wisdom it has not granted this power to all state supported universities but in effect has limited it to those located in Harris County. In addition to the eminent domain power already given the University of Houston under Section 111.38 (Acts of 1961 and 1963), the Legislature has specifically permitted State supported universities and colleges to close streets. This Act of the 62nd Legislature, 1971, Education Code, Sec. 51.904 — Street Closing — provides as follows: “The governing body of a state-supported college or university in a county having a population in excess of 1,500,000 may vacate, abandon, and close a street or alley running through the campus if the state-supported college or university owns all of the real property abutting the street or alley.”

POWER GRANTED NORTH TEXAS STATE UNIVERSITY

All the following references are to the Education Code. Section 61.021 provides that the Coordinating Board, Texas College and University System, is an agency of the State. “It shall perform only the functions which are enumerated in this chapter and which the legislature may assign to it.” (Emphasis added.) It further provides that functions not given to the Coordinating Board shall be performed by the governing boards of each college or university. Section 95.30 — Eminent Domain — provides in part as follows: “The board has the power of eminent domain to acquire for the use of the system universities the lands necessary and proper for carrying out their purposes, in the manner prescribed in Title 52, Revised Civil Statutes of Texas, 1925, as amended. The taking of the land is for the use of the state.” Section 95.31 provides that a senior college, in the county in which the college is located, may acquire land by purchase or by condemnation.

Section 105.41 — Extent of Powers — provides that “With respect to the management and control of the university, the board has the same powers and duties that are conferred on the Board of Regents, State Senior Colleges, with respect to institutions in that system.”

The Legislature has not expressly granted a power to North Texas State University, the Coordinating Board, or the State of Texas to condemn for the use and benefit of North Texas State University public property or public streets and highways. The power of condemnation is expressed only in general terms.

CONCLUSION

Although the title to the segments of the streets here involved is in the State, the State Legislature has delegated the exclusive control and dominion of those streets to the City of Denton.

In view of the express power given by Section 51.904 to close public streets, given only to state supported colleges and universities in counties of a certain size, we must infer from the Legislature’s silence as to the others that the Legislature did not intend to confer the power to close public streets upon state supported universities in counties with a population of less than 1,500,000. The record does not reflect the population of Denton County. However, we may take judicial notice of the fact that the population of Denton County as stated in the last Federal Census was considerably less than 1,500,000. Smith v. Patterson, 111 Tex. 535, 242 S.W. 749 (1922).

No statute has granted express authority for North Texas State University to acquire the segments of the streets here involved by condemnation. Without such express authority the exclusive dominion and control over the streets by the City has not been modified.

Judgment affirmed.


author: McKAY, Justice.

text:
    Audie STROUD, Relator, v. D. J. BEGGERLY, County Democratic Chairman of Rusk County, Texas, et al., Respondents.
    No. 999.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 27, 1976.

      R. L. Whitehead, Jr., Whitehead & Beck-worth, Longview, for relator.
    Dean W. Turner, Bath, Turner & Patterson, Henderson, for respondents.
   McKAY, Justice.

The Relator, Audie Stroud, has petitioned this court for a writ of mandamus (1) to compel D. J. Beggerly, County Democratic Chairman of Rusk County to certify Relator as nominee of the Democratic Party for the office of County Commissioner of Precinct Three, Rusk County; (2) to order Calvin Barber, County Clerk of Rusk County to place Relator’s name on the ballot for the general election to be held on November 2, 1976, as the nominee of the Democratic Party for the office of County Commissioner of Precinct Three, Rusk County; and (3) that Calvin Barber be enjoined from placing the name of Respondent, Dan Dickeson, on the ballot at the general election as the Democratic Party nominee for such office.

In the primary election for the Democratic Party in May, 1976, Floyd Moody was elected as the nominee for the office of County Commissioner of Precinct Three, Rusk County. Thereafter, on or about May 81,1976, Floyd Moody died. Relator alleges that on or about June 9, 1976, a meeting was called at Mt. Enterprise, Texas, of all the election precinct chairmen of the Democratic Party for Commissioner’s Precinct Three of Rusk County, and that of the ten election precinct chairmen in Commissioner’s Precinct Three, seven of them appeared and voted on a nominee to fill the vacancy, and that the vote was unanimous that Au-die Stroud, Relator, be, and he was nominated by such Precinct Executive Committee to be the Democratic Party candidate for County Commissioner for Precinct Three, Rusk County.

Attached to Relator’s petition are seven affidavits. Six of these affidavits state that the affiant was one of the ten precinct chairmen for the Democratic Party for Commissioner’s Precinct Three, Rusk County, and that the affiant was present on or about June 9, 1976, at a meeting of the Executive Committee of Commissioner’s Precinct Three, Rusk County, held for the purpose of nominating a candidate for the office of County Commissioner of Precinct Three, Rusk County, and that Tom Bridges was elected chairman, and that Audie Stroud was nominated as the person whose name was to be placed on the ballot as the nominee of the Democratic Party in the general election. Five of the six affidavits state that, “I hereby vote to elect Tom Bridges as chairman of the executive committee of Commissioners Precinct 3, Rusk County, Texas, and I nominate Audie Stroud to fill the vacancy on the ballot created by the death of Mr. Moody and nominate Audie Stroud as the Democratic Party candidate for the office of County Commissioner of Precinct 3, Rusk County, Texas, and request that his name be placed on the ballot as the Democratic Party nominee.” The affidavit of L. H. Buckner states that he was not present at the June 9th meeting, but it contains the above quoted language.

Also attached to the petition is a certificate of Tom Bridges that he was elected chairman of the Democratic Party Executive Committee of County Commissioner’s Precinct Three, Rusk County, and that Au-die Stroud was nominated at a meeting of the election precinct chairmen of Commissioner’s Precinct Three of Rusk County, on June 9,1976, “by the unanimous vote of the seven precinct chairmen present.” The certificate says, “We request that Audie Stroud’s name be placed on the ballot as the Democratic Nominee for County Commissioner, Precinct Number Three of Rusk County, Texas, for the general election to be held on November 2, 1976.”

The affidavits were signed and sworn to on August 21 and 22, 1976, and Bridges’ certificate was signed and sworn to on August 23, 1976. There are attachments indicating that the Certificate of Nomination signed by Bridges was delivered to Calvin Barber, County Clerk, on or about August 23, 1976, and that copies of the affidavits were delivered to D. J. Beggerly, County Democratic Chairman, on August 23, 1976.

Respondents Beggerly and Dickeson challenge the action of the Executive Committee of Commissioner’s Precinct Three and move to dismiss Relator’s petition and alleged that there had never been any legally constituted meeting of the Executive Committee of Precinct Chairmen of Commissioner’s Precinct Three for the purpose of nominating any candidate as Democratic nominee for Commissioner of Precinct Three, Rusk County, Texas, because (1) there was no notice of any meeting; (2) a meeting cannot be had by executing ex parte affidavits on a date when no meeting had been called; and (3) that no meeting could be held on August 21, 1976, because the terms of office of all of the Precinct Chairmen constituting the Commissioner’s Precinct Executive Committee, except one, had expired, and the certificate of Bridges was, therefore, void.

Beggerly and Dickeson also allege in their sworn pleadings that only eight of the precinct chairmen in Rusk County filed for re-election in the Democratic primary; and these eight were elected, but under the provisions of Art. 13.18, Election Code, V.A. C.S., all other precinct chairmen went out of office on June 11, 1976, at midnight. Respondents further aver that Beggerly, as county chairman, called a meeting of the eight elected precinct chairmen at 2:00 P. M., September 1, 1976, after notice dated August 28,1976, a copy of which notice was posted at the courthouse door and mailed by certified mail to each of the eight precinct chairmen and a copy delivered to all local news media. On the same date, it is alleged Beggerly posted notice at the courthouse and delivered same to the media inviting all persons interested in being considered for nomination as Democratic candidate for Commissioner of Precinct Three, Rusk County, to file an application with him as county chairman or with one of the ten election precinct chairmen of Commissioner’s Precinct Three. At the September 1st meeting the eight elected and serving members of the County Democratic Executive Committee appointed persons to fill the alleged vacancies as election precinct chairmen throughout the county. It is alleged and sworn to by Respondent Beggerly in his motion to dismiss that he, as County Chairman, after notice, called a meeting of the ten precinct chairmen in Commissioner’s Precinct Three, for September 7, 1976. Pursuant to said notices all ten of the precinct chairmen met at the time and place designated and proceeded to organize and to nominate Dan Dickeson as Democratic candidate for Commissioner’s Precinct Three, Rusk County. Minutes of such meeting were filed with the County Clerk, and the name of Dan Dickeson was certified to the County Clerk as such nominee.

There are six affidavits dated September I, 1976, executed by some of the seven precinct chairmen who were present at the June 9th meeting, five of whom executed the previously mentioned affidavits on August 21 and 22,1976. The sixth affidavit of J. C. Latimer states that he was asked to sign an affidavit for Relator but refused. The five affidavits state that there was no formal organization of the meeting of the seven precinct chairmen on June 9, 1976, but by common consent Tom Bridges was elected chairman; that by common consent or by the consensus of opinion by four or five of those present it was thought “that Audie Stroud would be the man we could most likely get nominated.” The affidavits further state that when the group met at Mt. Enterprise on June 9,1976, they did not understand that they were nominating anybody but were merely making a recommendation to the County Democratic Executive Committee. Some of the affiants said in the September 1, 1976, affidavits that they did not realize when the August 21st affidavits were signed that the earlier ones were “worded so strongly as to indicate that we met for the purpose of making a nomination or that we made a nomination,” or that the August 21st affidavit “leaves the wrong impression” and them some of them repudiate the earlier affidavits insofar as they may be inconsistent with the ones made on September 1st.

Art. 13.18a(5) Election Code, V.A.C.S., provides that, “[T]he precinct chairmen of the election precincts within the commissioners precinct or justice precinct shall constitute the precinct committee.”

Art. 13.56(b) Election Code, V.A.C.S., provides:

“If prior to the 20th day before the day of the election, a nominee dies or declines the nomination . . . the executive committee for the . . . precinct may nominate a candidate to supply the vacancy. A certificate of such nomination, signed and duly acknowledged by the chairman of the executive committee, must be filed with the officer with whom the certificate of the original nomination was filed and must set forth the name of the original nominee, the cause of the vacancy, the name of the new nominee, the office for which he was nominated, and when, where, by whom, and how he was nominated. . . .”

Art. 1823, V.A.C.S., confers upon this court the authority to issue writs of mandamus and other writs necessary to enforce our jurisdiction. Art. 1735a, V.A.C.S., provides that Courts of Civil Appeals, along with the Supreme Court, shall have power or authority or jurisdiction to issue the writ of mandamus against any public officer or chairman or committee or member of such committee or officer of any political party to compel the performance of any duty imposed upon them by law.

We are met at the outset with the question of whether this court has jurisdiction to grant a writ of mandamus under the record presented here. We have concluded that we do not have jurisdiction because the record reveals there are disputed fact issues. The affidavits attached to Respondents’ pleading repudiate the affidavits made by some of the same parties earlier insofar as the first affidavits are inconsistent with the second ones. Therefore, there is a disputed fact issue as to whether Audie Stroud was nominated by the Precinct Executive Committee on June 9, 1976, or on August 21, 1976, or whether he has been nominated in fact at any time. An appellate court does not have jurisdiction to entertain an application for a writ of mandamus when the sworn petition and sworn answer present a fact question. Rogers v. Lynn, 121 Tex. 467, 49 S.W.2d 709, 51 S.W.2d 1113 (Comm. of App., opinion adopted, 1932); Lydick v. Chairman of Dallas County Republic Executive Committee, 456 S.W.2d 740, 742 (Tex.Civ.App.-Dallas 1970, no writ); Stevens v. Link, 433 S.W.2d 779, 781 (Tex.Civ.App.-Texarkana 1968, no writ); Donald v. Carr, 407 S.W.2d 288, 292 (Tex.Civ.App.-Dallas 1966, no writ); Prince v. Peurifoy, 396 S.W.2d 913, 917 (Tex.Civ.App.-Dallas 1965, no writ); Brown v. Walker, 376 S.W.2d 854, 856 (Tex.Civ.App.-Beaumont 1964, no writ); Cantrell v. Carlson, 313 S.W.2d 624, 627 (Tex.Civ.App.-Dallas 1958, no writ); Ferris v. Carlson, 314 S.W.2d 295, 298 (Tex.Civ.App.-Dallas 1958, no writ).

Respondents alternative plea is granted, and the petition for writ of mandamus is dismissed for want of jurisdiction. The fact that the ballots for the general election to be held on November 2,1976, must be printed very soon creates an emergency, and no motion for rehearing will be entertained.


author: BARROW, Chief Justice.

text:
    CITY OF SAN ANTONIO, Appellant, v. O. H. LANIER et al., Appellees.
    No. 15644.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 29, 1976.
    Rehearing Denied Oct. 27, 1976.

      James M. Parker, City Atty., Jackson C. Hubbard, Asst. City Atty., San Antonio, for appellant.
    Robert L. Strickland, Strickland & Dai-ley, San Antonio, for appellees.
   BARROW, Chief Justice.

City has appealed from a judgment entered after a non-jury trial declaring that three acres of land, located at the corner of Sunset Road and N. New Braunfels Avenue, owned by appellees, was rezoned from “A” (single-family residential) to “R-3” (multi-family residential) by the City Council on March 20, 1975, by a vote of six votes in favor of the rezoning, two votes against such rezoning, and one member absent. The primary question presented is whether a three-fourths (¾) favorable vote of the Council was required to overrule the negative recommendation of the City Planning Commission.

This question has arisen because of the conflict between the restriction on changes as provided in Art. lOlle and an ordinance adopted by the City in 1971.

Article lOlle provides:

Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified, or repealed. In case, however, of a written protest against such change, signed by the owners of 20 per cent or more either of the area of the lots or land included in such proposed change, or of the lots or land immediately adjoining the same and extending 200 feet therefrom, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality. The provisions of the previous section relative to public hearing and official notice shall apply equally to all changes or amendments.

In 1971 the Zoning Code of the City was amended to require a three-fourths favorable vote of the Council to make a change in zoning where the Planning Commission recommends the change be denied as well as where there is a written protest against such change which is signed as provided in the statute.

The property in question includes all of Lots 1, 2, and 3 of New City Block 11886. O. H. Lanier and wife own two one-half acre tracts in Lot 1; Paul J. Bury, Andree Goddard, Harry B. Orem, Jr., and O. H. Clark, Jr., each own a tract in Lot 2; and W. H. Bagwell owns Lot 3. Lanier’s two lots front on N. New Braunfels and the other tracts front on Sunset. This property was annexed by the City in 1952, and at that time the area was largely rural with only a few homes in existence. Since that time there has been substantial growth in the area and also a significant change in the use of the property. The biggest change was brought about by the rezoning and subsequent development of a large shopping center across New Braunfels immediately east of appellees’ property. . Also, the City has experienced a remarkable growth to the north and east of the 1952 city limits. The traffic has increased tremendously on both New Braunfels and Sunset streets and both have now been designated secondary thoroughfares by City.

This heavy traffic has limited the access to the single-family residences owned by ap-pellees. For example, parking is prohibited on New Braunfels and it is dangerous to park in front of the residences that front on Sunset. This change in the neighborhood has affected its utility as single-family residences. Orem has moved from his home, but has been unable to sell the property. About three years ago, Lanier bought the property next to his home from an estate, but has been unable to rent or sell the second house.

In August 1974, appellees filed a joint application to change the zoning of this property from “A” to “R-3” and “B-2” (light business) for the property fronting on New Braunfels. The staff of the Planning Commission recommended a change of the entire tract to R-3 so as to provide a transitional use between the single-family residences to the west of appellees’ property and the retail shopping center to the east. Appellees modified their application in accordance with the staff recommendation. Nevertheless, the Planning Commission did not follow the recommendation of its staff and recommended to the City Council that the application be denied. On March 20, 1975, the application was considered by the City Council and, after a full hearing, the Council voted to change the zoning from “A” to “R-3” by a vote of six in favor of and two against, with one member absent.

It is conceded by appellees that the application did not receive a favorable vote of three-fourths of the nine members of the City Council. See City of Alamo Heights v. Gerety, 264 S.W.2d 778 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.). It is urged, however, that such was not required.

It is settled law that municipalities in Texas derive their power to adopt zoning regulations exclusively from the enabling statutes, Art. 1011a, et seq. Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387 (1921). In approving zoning ordinances, cities are confined to the express authority delegated to them by the legislature. Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962); Swain v. Board of Adjustment of City of University Park, 433 S.W.2d 727 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.), cert. denied, 396 U.S. 277, 90 S.Ct. 563, 24 L.Ed.2d 465 (1970).

The Charter of the City adopted all of the zoning powers granted by the enabling statutes. Pursuant to the authority granted to it, City adopted a comprehensive zoning plan in 1938. Article lOlle authorizes cities to change the comprehensive zoning plan from time to time. However, this statute requires a three-fourths favorable vote only in the event the requisite number of landowners protest the change. It does not require a three-fourths favorable vote where the planning commission recommends that the requested change be disapproved. There is no statutory authority for City to require a three-fourths favorable vote because of the disapproval of the Planning Commission.

There is no statutory authorization for a city to delegate to its planning commission a part of its legislative power to amend the zoning ordinance. Nevertheless, City attempted to delegate legislative power to the Planning Commission in that this ordinance places a burden upon property owners of obtaining a three-fourths favorable vote to override a recommendation of the Planning Commission that the change be disapproved. Such requirement is an unlawful delegation of legislative power by City. Swain v. Board of Adjustment of City of University Park, supra.

The requisite number of adjoining landowners did not protest the change, and therefore, only a majority of the favorable votes of City Council was required to approve the change. Appolo Development, Inc. v. City of Garland, 476 S.W.2d 365 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.). Appellees secured such approval on March 20, 1975, and the trial court properly held that the change was approved at that time.

City urges that, in any event, its action in rezoning this property is arbitrary and void in that it is “spot” zoning. See Thompson v. City of Palestine, 510 S.W.2d 579 (Tex.1974); Hunt v. City of San Antonio, 462 S.W.2d 536 (Tex.1971). Appellees urge by counterpoint that the City cannot complain of its own action. While we recognize that City’s posture is somewhat unusual, we have been cited to no authority and have found none which would prevent us from determining the validity of the ordinance approving a change in the zoning of appel-lees’ property.

In Thompson and Hunt the Supreme Court reaffirmed that arbitrary spot zoning by a city is void. In Thompson spot zoning is defined as “ . . . where a small area is singled out for different treatment from that accorded to similar surrounding land without any showing of justifiable changes in conditions, and especially when such preferential treatment is given in an amendatory ordinance which is contrary to a long-established comprehensive zoning plan.” In Hunt it is said that “[t]he presumption that an amendatory ordinance is valid, however, disappears if it is shown that a city acted arbitrarily and unreasonably rather than on the basis of changed conditions (often referred to as the ‘issuable facts’).”

The record here establishes significant changed conditions to justify an amendment in the rezoning of this tract. It has heretofore been pointed out that the area has undergone a significant change in recent years which substantially increases the traffic and affects the utility of the property as single-family residences. At the time the property was annexed by the City the area was largely rural in use. In 1952, Mr. Lanier had an orchard at the back of his 300-foot deep lot and also raised chickens. He uses only the front half of his two lots for residence purposes at the present time and the back half of the lot is in brush. The same situation exists on Lot 3 which is 375 feet deep. There is no access to the back of either lot other than from Sunset or New Braunfels streets. This limited access prevents the use of the back of Lot 1 and Lot 3 as a single-family residence.

It cannot be said that appellees’ land has been singled out for preferential treatment. There has been substantial rezoning of property in this area. A large retail shopping center is directly east of appellees’ property. Other business properties are nearby. Also, there are several large apartment complexes in the immediate vicinity. Three of the four corners on Sunset at the next intersection west of appellees’ property have been recently changed from residential to commercial zoned property. There is a three-acre commercial orchid business in the next block. The Senior Planning Administrator of City testified that a R-3 classification of this property would provide a transition buffer between the commercial property in existence just east of this property and the single-family property to the west.

We conclude from this record that the City Council did not abuse its discretion in rezoning appellees’ property for multifamily use. City of University Park v. Benners, 485 S.W.2d 773 (Tex.1972); City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955); Burkett v. City of Texarkana, 500 S.W.2d 242 (Tex.Civ.App.—Texarkana 1973, writ ref’d n. r. e.); Clesi v. Northwest Dallas Imp. Ass’n, 263 S.W.2d 820 (Tex.Civ.App.—Dallas 1953, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.

      . All statutory references are to Tex.Rev.Civ. Stat.Ann.

      . Section 43-29(b)(3) of the City Code of San Antonio.


author: ELLIS, Chief Justice.

text:
    RANDALL COUNTY et al., Appellants, v. Donald C. TODD et al., Appellees.
    No. 8696.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 30, 1976.

      Richard L. Wilcox, Asst. Dist. Atty., Canyon, for appellants.
    Robert E. Garner, Garner, Vickers, Purdom & Nelson, Lubbock, for appellees.
   ELLIS, Chief Justice.

This venue case grew out of a suit instituted in the District Court of Potter County, Texas, by Donald Todd and various other taxpaying citizens of the cities and counties in which they are alleged to reside, individually, collectively and as a class, against (1) Panhandle Regional Planning Commission, (2) several of its member counties and cities and (3) various public officials of such counties and cities. The plaintiffs seek to enjoin further support of the planning commission by contributions of tax funds and a declaratory judgment that Tex.Rev.Civ.Stat.Ann. art. 1011m, the enabling legislation underlying the creation and operation of such commission, is unconstitutional. Defendants Randall County, Texas, a member county, and Randall County officials, County Judge Woody Pond and County Commissioners, J. I. Fletcher, John Ful-genzi, Dee Griffin and Paul Lindsey, relying on Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 19, duly filed their pleas of privilege to be sued in Randall County. The trial court overruled the defendants’ pleas of privilege. Upon request, the trial court filed findings of fact and conclusions of law. Among other matters, the trial court concluded that venue was sustainable in Potter County under subdivisions 4 and 29a of article 1995. Reversed and rendered.

The appellants have predicated their appeal from the judgment overruling their pleas of privilege on three points of error. Basically, they contend that the provisions of subdivision 19 are mandatory and control the disposition of the venue question raised in this case and thus the trial court erred in sustaining venue in Potter County under subdivisions 4 and 29a, respectively.

Subdivisions 4, 19 and 29a of article 1995, the Texas venue statute, provide:

4. Defendants in different counties.— If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. .
******
19. Suits against counties. — Suits against a county shall be brought within such county.
* * * * * *
29a. Two or more defendants. — Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto. (Emphasis added).

Initially, we note that the language of the above quoted provisions of subdivisions 4 and 29a is permissive in nature while that of subdivision 19 is mandatory. It is recognized that the permissive provisions must yield to the mandatory provisions of the venue statute. Langdeau v. Burke Inv. Co., 351 S.W.2d 287 (Tex.Civ.App.-San Antonio 1961), aff’d 163 Tex. 526, 358 S.W.2d 553; Chain Inv. Co. v. First Nat’l Bank, 135 S.W.2d 192 (Tex.Civ.App.-Austin 1939, no writ); Fetherston v. State, 146 S.W.2d 1078 (Tex.Civ.App.-Beaumont 1940, no writ); Montague County v. Meadows, 31 S.W. 694 (Tex.Civ.App.-1895, err. ref.). Further, it has been stated that “when an action is against a county the present venue provision (subd. 19) takes precedence over other mandatory or permissive exceptions found in Art. 1995.” (emphasis added). 1 R. McDonald, Texas Civil Practice in District and County Courts (1965) § 4.27, at 511. Also, see Hodges v. Coke County, 196 S.W.2d 935; 197 S.W.2d 886 (Tex.Civ.App.-Amarillo 1946, no writ); Dial v. Crosby County, 96 S.W.2d 534 (Tex.Civ.App.-Amarillo 1936, no writ).

With further regard to the trial court’s conclusion that venue was sustainable in Potter County under subdivision 29a, it has been held that subdivision 29a is ancillary to other exceptions and cannot, within its own terms, sustain venue; it can only be considered in conjunction with some other exception. See Kain v. Northland Insurance Company, 472 S.W.2d 304, 306 (Tex.Civ.App.-Amarillo 1971, no writ); Shaver v. Hughes, 214 S.W.2d 176 (Tex.Civ.App.-Fort Worth 1948, no writ); White v. Gamblin, 203 S.W.2d 1014 (Tex.Civ.App.-Eastland 1947, no writ). Additionally, subdivision 29a applies only when no defendant resides in the county where the suit is brought. Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900 (1942); Houseman v. Mahin, 390 S.W.2d 732 (Tex.1965); State Farm Mut. Auto Ins. Co. v. White, 461 S.W.2d 476 (Tex.Civ.App.-Tyler 1970, no writ). The trial court found that one or more of the defendants in this suit are residents of Potter County, the county in which the suit was brought. Thus, the application of subdivision 29a is foreclosed. In order for subdivision 4 to be applicable, in any event, one of the defendants must be a resident of the county in which the suit is brought. Thus, subdivision 29a could not in this instance operate in conjunction with subdivision 4.

After reviewing the pertinent provisions of the various exceptions to the venue statute, the pleadings, evidence and findings and conclusions by the court, we have determined that the basic matter to be decided is whether subdivision 19 controls the disposition of the venue question herein raised.

In the case of City of Tahoka v. Jackson, 115 Tex. 89, 276 S.W. 662, 663 (1925), it was held that Section 19 of art. 1830 (predecessor to article 1995) “expressly exempts counties * * * from all other exceptions enumerated in the article.” In this connection this court in Hodges v. Coke County, supra, pointed out with respect to the holding in City of Tahoka that:

A careful analysis of the language used reveals that the court there holds that it was the intention of the Legislature to expressly exclude counties from the terms of the exceptions in the venue statutes and to fix venue in suits against a county exclusively under the provisions of Subdivision 19. 197 S.W.2d at 887.

In view of the foregoing and in the light of the mandatory language contained in subdivision 19, we hold that subdivision 19 prevails over subdivisions 4 and 29a and that Randall County’s plea of privilege should be sustained. It is also our opinion that the Randall County officials’ plea of privilege should be sustained. These officials were sued in their capacity as county officials and they are entitled to rely upon subdivision 19 to fix venue in Randall County as to the suit brought against them; suits against a County Judge and County Commissioners are suits against the county within the meaning of subdivision 19. Cobb v. H. C. Burt & Co., 241 S.W. 185 (Tex.Civ.App.-Beaumont 1922, no writ).

The foregoing holdings preclude our reaching appellants’ other contentions.

For the reasons above stated, the appellants’ points of error are sustained. Accordingly, the judgment of the trial court is reversed and judgment rendered granting the defendants’ pleas of privilege to be sued in Randall County. The cause is ordered transferred to the District Court of Randall County, Texas in accordance with the provisions of Rule 89, Texas Rules of Civil Procedure.


text:
    George CATANIA et al., Appellants, v. GARAGE DE LE PAIX, INC., et al., Appellees.
    No. 936.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 30, 1976.
    Rehearing Denied Oct. 28, 1976.

      George M. Bishop, Tipton & Bishop, Houston, for appellants.
    Milton Schwartz, Schwartz, Judice & Farrell, Houston, for appellees.
   MOORE, Justice.

Appellants, plaintiffs below, brought suit against appellees, defendants below, seeking damages for fraud in the inducement of a real estate lease agreement under the provisions of the Texas Business and Commerce Code, sec. 27.01 and, in the alternative, for the rescission of the lease contract because of fraud and deceit and sought a recovery of prepaid rent and for damages for conversion of certain personal property left on the leased premises. After a trial before the court judgment was entered granting appellants a $4,000 recovery for conversion of personal property left on the leased premises but denied them any relief on their claim for fraud. Appellants have limited their appeal to that part of the judgment denying them any relief on their claim for fraud. Appellees seek the reversal of that part of the judgment awarding appellants a recovery for conversion.

We affirm the judgment except that portion granting appellants judgment for conversion which we reverse and render in favor of appellees.

The appellants, George Catania and Earl Williams, leased a restaurant from the ap-pellee, Garage De Le Paix, Inc., a Texas corporation. The lease which was for five years was to encompass the period from January 1, 1973, through December 31, 1977. Under the terms of the lease, the appellants as lessees agreed to pay rent of $2,000 per month and to assume the obligations of maintenance, insurance, taxes, etc. Upon execution of the lease appellants paid the lessors the sum of $24,000 covering the rent for the first month and prepaying the rent for the last eleven months in accordance with the terms of the lease. The appellants operated the restaurant on the leased premises for about one year under the lease and then, with the consent of the appellee corporation, they assigned the lease and sold several items of operating equipment in the nature of personal property to Mark Harris. Harris continued to operate the restaurant for about six months after which he vacated the premises, leaving behind the operating equipment he had purchased from appellants. At the time Harris abandoned the premises he was one month's rent in arrears and there were three and one-half years remaining on the lease. After the assignee Harris vacated, the appellees immediately re-entered the premises, changed the locks to the building and set out to find a new lessee.

It is apparent from the pleadings and the evidence that aside from their cause of action for conversion the appellants sought to recover upon two theories. First, they sought damages for fraud and secondly, they sought a rescission of the contract based upon fraud in the inducement and prayed for a recovery of $22,000 in prepaid rent. In his findings of fact and conclusions of law the trial judge found, among other things, that the appellees did not make any of the fraudulent representations alleged by the appellants as a basis for the cause of action for fraud. The court further found that the appellants abandoned the premises and defaulted in the lease payments. Finally, the court found that the lessor converted certain personal property of the appellants worth approximately $4,000. As conclusions of law the court found that the lease was a binding and valid agreement not having been procured by fraud or deceit and that there had been no unjust enrichment. The court concluded further that although the appellants were entitled to a judgment for conversion in the amount of $4,000 appellants were not entitled to any relief on their claim for fraud.

Appellants have no points of error attacking the trial court’s findings that the evidence failed to establish fraud on the part of appellees. Appellants’ points of error, as we understand them, contend that the trial court erred in refusing to make additional findings in response to their request, by refusing to find that after appellants abandoned the leased premises and the ap-pellees re-entered, the lease contract became terminated and therefore appellants were entitled to recover the sum of $22,000 in prepaid rent. Appellants now contend on this appeal that since the record establishes that the lease was terminated as a matter of law by the acts and conduct of the parties, it becomes our duty to reverse and render judgment in their favor for the prepaid rent. We cannot agree with this proposition.

The record is devoid of any pleadings or proof establishing a cause of action Upon the theory that the lease terminated. The record clearly shows that aside from the cause of action for conversion, the appellants’ theory of recovery was based solely on actionable fraud and, alternatively, for rescission of the lease contract based on fraud in the inducement thereof. The trial court, therefore, properly refused to find that the appellants were entitled to a recovery on the ground that the lease contract was terminated since the case had not been tried on that theory.

It is now well settled that a ease will not be reviewed by the appellate court on a different theory from that on which it was tried below. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238 (1942); American Mutual Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844 (1945); Johnson v. Faulk, 470 S.W.2d 144 (Tex.Civ.App.—Tyler 1971, no writ); Reisenberg v. Hankins, 258 S.W. 904 (Tex.Civ.App.—Amarillo 1924, writ dism’d). Inasmuch as this cause was tried and submitted to the trial court solely on the issue of fraud, it cannot be reviewed and determined by this court on a different theory. Appellants’ points of error are overruled.

The only remaining matter to be determined is the appellees’ crosspoint complaining of the $4,000 in damages assessed against them for the conversion of personal property left on the premises after the abandonment by the assignee of the lease. Appellees seek reversal on the ground that appellants failed to prove either ownership of the property or that they were entitled to its possession.

First, we note that the appellees failed to request the trial court to make findings of fact and conclusions of law on this issue. In these circumstances, the judgment will not be disturbed if there is any evidence of probative force to support the same. In this instance we have concluded that there is no evidence to support the judgment for conversion and, therefore, the judgment in this regard must be reversed.

In this jurisdiction conversion is the unauthorized and wrongful exercise of dominion and control over another’s personal property, to the exclusion of or inconsistent with the rights of the owner. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex.1971). It is essential that the plaintiff establish some interest in the property as of the time of the alleged conversion, such as title or otherwise some right to possession. Guinn v. Lokey, 151 Tex. 260, 249 S.W.2d 185, 186 (1952); Gable Electric Service, Inc. v. Mims, 364 S.W.2d 292, 296 (Tex.Civ.App.1963, no writ); Pacific Finance Corp. v. Crouch, 243 S.W.2d 432 (Tex.Civ.App.—Texarkana 1951, no writ). A plaintiff who has not shown title or some other right to possession of the property allegedly converted may not maintain a suit in conversion. Epstein v. Meyer Bros. Drug Co., 82 Tex. 572, 18 S.W. 592, 593 (1891); Oliver Chilled Plow Works v. Askey, 22 S.W.2d 743, 744-45 (Tex.Civ.App.—Eastland 1929, no writ). In the instant case we fail to find any evidence of probative force to show any title or right to possession in the appellants. To the contrary, the document assigning the lease to Harris showed on its face that appellants had sold the property in question to Harris. Moreover, the appellant, George Catania, admitted in his testimony that the property was sold to Harris at the time of the assignment of the lease. The evidence further established that Harris, rather than the appellants, had been in possession of the property for six months prior to the abandonment of the premises. The record, therefore, clearly shows that appellants did not establish the necessary interest in the property in order to form the basis for a suit in conversion.

In view of our holding that there is no evidence, as a matter of law, to support the trial court's finding of conversion, we do not reach appellees’ further contention that the trial court’s finding and judgment of conversion is against the great weight and preponderance of the evidence. For the reasons stated herein, we affirm the judgment in all respects except that part awarding appellants a $4,000 judgment for conversion which we hereby reverse and render judgment that the appellants take nothing.

Affirmed in part and reversed and rendered in part.

      . “POINT ONE: The Trial Court erred in not finding as aunatter of law that the actions of the Appellees in reletting the premises for their own account rather than for the account of the Appellants constituted an acceptance of surrender of the lease by operation of law.
      “POINT TWO: The Trial Court erred in not finding as a matter of law that the action of the Appellees in changing the locks of the premises after the sub-lessee’s abandonment was an act inconsistent with Appellants’ possession and this was an acceptance of Appellants’ offer to terminate the lease.
      “POINT THREE: The Trial Court erred in not finding as a matter of law that by the conversion of the Appellants’ property, the Appellees took from the Appellants’ property that was essential to the operation of the restaurant. These acts were inconsistent with the continued relation of landlord-tenant and Appellees thus have not taken the proper precautions to prevent a termination of the lease.”