author: ODEN, Justice.

text:
    ENNTEX OIL & GAS COMPANY (OF NEVADA) et al., Appellants, v. The STATE of Texas, Appellee.
    No. 8516.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 13, 1977.
    Rehearing Denied Jan. 24, 1978.

      Earl L. Yeakel, III, Kammerman, Yeakel, Trickey & Overstreet, Austin, for appellants.
    John L. Hill, Atty. Gen. of Texas, Bill Flanary, Asst. Atty. Gen., Austin, for appel-lee.
   ODEN, Justice.

Enntex Oil & Gas Company (of Nevada), Spindletop Oil & Gas Company, Oklahoma Coal & Oil Company, Laprada Oil & Gas Company, Texas Coal & Energy Company, Paul E. Cash, J. W. Heflin and Joe B. Owen, appeal from a judgment entered in the 14th Judicial District Court of Dallas County, Texas, permanently restraining and enjoining them from, “In any way, and by any manner or means, either or (sic) directly or indirectly, promoting, issuing, selling, offering to sell, negotiating for sale, advertising, dealing or distributing securities, including but not limited to, instruments representing interest in or under oil or gas leases or investment contracts within or from within the State of Texas, without complying with the registration and licensing requirements of Section 7(A)(1) and (12) of Article 581 V.C.S.” Appellee, The State of Texas, acting by and through its Attorney General and at the specific request of its Securities Commissioner, applied for the permanent injunction ultimately entered alleging, inter alia, that the appellants offered to sell, sold, issued and dealt in and with securities, namely certificates representing interest in or under oil, gas and mining leases, without complying with the licensing and registration requirements of the Securities Act of Texas, Tex.Rev.Civ. Stat.Ann. art. 581-1, et seq. The judgment from which the appeal has been perfected was entered based on a finding that appellants offered for sale and did sell, issue and deal in and with securities, namely certificates or an instrument representing an interest in or under an oil, gas or mining lease, without complying with the Securities Act of Texas, Tex.Rev.Civ.Stat.Ann. art. 581-1, et seq. Appellants, with the exception of Spindletop Oil & Gas Company, do not allege that the evidence fails to support the fact findings of the trial court upon which the permanent injunction was predicated. Spindletop Oil & Gas Company does assert herein that there is no evidence in the record that it violated the Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-1, et seq. The pivotal issues to be resolved on appeal pertain to appellants’ allegations that their dealings and activities were solely in interstate commerce and any regulation thereof by appellee would be an unreasonable restraint on interstate commerce and that appellee applied the Texas Securities Act against them in a manner which violated their rights of equal protection and due process under the Constitutions of the United States and the State of Texas.

Enntex Oil & Gas Company (of Nevada), Oklahoma Coal & Oil Company, Laprada Oil & Gas Company, and Texas Coal & Energy Company, were corporations organized for the purpose of selling undivided interests in oil and gas leases located within the State of Texas. They were either incorporated in the State of Texas or doing business in the State of Texas pursuant to certificates of authority issued by the Secretary of State of Texas. These appellants, in furtherance of their corporate purpose, through telephone solicitations normally originated in Texas, sold undivided interests in oil and gas leases located in Texas to non-residents of Texas. An offering sheet describing the interests to be offered for sale was filed with the Securities and Exchange Commission of the United States pursuant to Schedule D of Regulation B promulgated by said Commission pursuant to the Securities and Exchange Act of 1938. Each offering sheet bore the following caveat on its first page:

“THE SECURITIES AND EXCHANGE COMMISSION HAS NEITHER APPROVED NOR DISAPPROVED THE INTERESTS HEREBY OFFERED AND IT IS A CRIMINAL OFFENSE TO REPRESENT THAT THE COMMISSION HAS APPROVED SUCH INTERESTS OR PASSED UPON THEIR MERITS OR VALUE OR HAS MADE ANY FINDING THAT THE STATEMENTS IN THIS OFFERING SHEET ARE CORRECT.”

Companies such as the corporate appellants and their offerings are commonly referred to as “Schedule D’s” because of the nomenclature of the form filed with the Securities and Exchange Commission of the United States. A “Schedule D” filing is in fact an exemption from registration under the Securities and Exchange Act of 1933. All oil and gas leases offered for sale were located in the State of Texas. The appellants did not make any sales to Texas residents; however, monies derived from sales to nonresidents of Texas were sometimes received in Texas and deposited to bank accounts maintained in Texas. The offering sheets filed with the Securities and Exchange Commission of the United States and mailed to potential investors were prepared in Texas and mailed to potential investors from the State of Texas. It is noteworthy that in many instances the only non-Texas aspect of the corporate activities was the location of the investor. Those appellants engaged in sales scrupulously avoided making sales to Texas residents.

Joe B. Owen owns 33⅛% of the issued and outstanding stock of Laprada Oil & Gas Company. Paul E. Cash and J. W. Heflin each own 33⅛% of the issued and outstanding stock of Oklahoma Coal & Oil Company, Laprada Oil & Gas Company and Texas Coal & Energy Company. Furthermore, Paul E. Cash and J. W. Heflin each own 41% of the issued and outstanding stock of Southern Bankers Investment Company which owns 100% of the issued and outstanding stock of Spindletop Oil & Gas Company. Spindletop Oil & Gas Company owns 100% of the issued and outstanding stock of Enntex Oil & Gas Company (of Nevada). The record is silent as to the identity of the owner or owners of the remaining 18% of Southern Bankers Investment Company stock, and the remaining 33⅛% of Texas Coal & Energy Company stock and Oklahoma Coal & Oil Company stock; however, Paul E. Cash and J. W. Heflin could, acting in concert, control the activities of all corporate appellants.

It is not suggested that appellants’ activities qualified as “exempt transactions” under Tex.Rev.Civ.Stat.Ann. art. 581-5 or that the securities offered (undivided interests in oil and gas leases located within the State of Texas) were “exempt securities” under Tex.Rev.Civ.Stat.Ann. art. 581-6. Article 581-4(E) provides that:

“The terms ‘sale’ or ‘offer for sale’ or ‘sell’ shall include every disposition, or attempt to dispose of a security for value. The term ‘sale’ means and includes contracts and agreements whereby securities are sold, traded or exchanged for money, property or other things of value, or any transfer or agreement to transfer, in trust or otherwise. Any security given or delivered with or as a bonus on account of any purchase of securities or other thing of value, shall be conclusively presumed to constitute a part of the subject of such purchase and to have been sold for value. The term ‘sell’ means any act by which a sale Is made, and the term ‘sale’ or ‘offer for sale’ shall include a subscription, an option for sale, a solicitation of sale, a solicitation of an offer to buy, an attempt to sell, or an offer to sell,' directly or by an agent or salesman, by a circular, letter, or advertisement or otherwise, including the deposit in a United States Post Office or mail box or in any manner in the United States mails within this state of a letter, circular or other advertising matter. Nothing herein shall limit or diminish the full meaning of the terms ‘sale,’ ‘sell’ or ‘offer for sale’ as used by or accepted in courts of law or equity. The sale of a security under conditions which entitle the purchaser or subsequent holder to exchange the same for, or to purchase some other security, shall not be deemed a sale or offer for sale of such other security; but no exchange for or sale of such other security shall ever be made unless and until the sale thereof shall have been first authorized in Texas under this Act, if not exempt hereunder, or by other provisions of law. Provided, however, advertising when made in compliance with Section 22 shall not be deemed a sale.” (Emphasis added.)

The Securities Act regulates sellers and sales. Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (1956); Fowler v. Hults, 138 Tex. 636, 161 S.W.2d 478 (1942); Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947). It applies if the seller is any link in the chain of the selling process. Brown v. Cole, supra; Rio Grande Oil Co. v. State, 539 S.W.2d 917 (Tex.Civ.App. Houston-lst Dist. 1976, writ ref’d n. r. e.). It is obvious from an examination of the quoted portion of the Securities Act and the holdings in the cited cases that the Securities Act applies to appellants and their sales activities even though the purchasers, who are not regulated by the Act, were non-residents of the State of Texas. The question thus presented is whether or not such regulation is an unreasonable restraint on interstate commerce in violation of the United States Constitution. A state statute affecting interstate commerce will be upheld where the statute regulates evenhandedly to effectuate a legitimate local public interest and its effects on interstate commerce are incidental unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Pike v. Bruce Church, 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970); Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960). A state is damaged if its citizens are permitted to engage in fraudulent practices even though those injured are outside its borders. Rio Grande Oil Co. v. State, supra. Clearly, the State of Texas has a legitimate local public interest in taking precautions that oil and gas leases covering its lands are not the subject of fraudulent security practices. The Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-1, et seq., only applies to disposition of securities within the state and accordingly, only incidentally touches interstate commerce. The incidental burden on interstate commerce created by the Act is insubstantial and not unreasonable. Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1974). The incidental burden imposed upon interstate commerce in this case is not excessive when compared in relation to the putative local benefits. Accordingly, appellants’ contention that the Texas Securities Act, as it applies to them, violates the interstate commerce clause of the United States Constitution is overruled.

Appellants concede that the Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-1, et seq., is not in and of itself viola-tive of the constitutional safeguards of equal protection and due process; however, they do urge that the Act, as applied to them, is unconstitutional inasmuch as the Securities Commissioner did not attempt to regulate “Schedule D” companies and offerings prior to August 20, 1975, and that, after that date, the Securities Commissioner was inconsistent in seeking relief against the various “Schedule D” companies operating in the State of Texas. We must overrule appellants’ contention. The Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581 — 1, et seq., as written, is capable of uniform enforcement. The fact that a law may not be invoked against others could not in anywise affect its constitutionality because invoked against those such as appellants. Ex Parte Boman, 160 Tex.Cr.R. 148, 268 S.W.2d 186 (1954). It was held in Super X Drugs of Texas v. State, 505 S.W.2d 333 (Tex.Civ.App. Houston-14th Dist. 1974, no writ), that:

“ . . . More must be shown than mere unequal application of a state statute to prove a violation of the equal protection clause of the fourteenth amendment to the United States Constitution. It is not sufficient to show only that the law is enforced against some and not others. There must be a showing of actual and purposeful discrimination against the individual himself or against a suspect classification in which he falls (such as wealth, religion, or race), with no proper justifying governmental purpose in such classification. . . . ”

Appellants have not shown, or attempted to show that they were actually and purposefully discriminated against by the State of Texas in these proceedings and we hold that their constitutional rights have not been violated.

Spindletop Oil & Gas Company urges that it did not violate the Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-1, et seq., because it did not engage in any sales activities. Spindletop Oil & Gas Company is a wholly owned subsidiary of Southern Bankers Investment Company which in turn is controlled by Paul E. Cash and J. W. Heflin. Spindletop Oil & Gas Company owns all the issued and outstanding stock of Enntex Oil & Gas Company (of Nevada). Spindletop Oil & Gas Company owned all of the issued and outstanding stock of Enntex Oil & Gas Company (of Texas); however, prior to the instant litigation, Enntex Oil & Gas Company (of Texas) was dissolved with its parent, Spindletop Oil & Gas Company, acquiring all of its assets. Enntex Oil & Gas Company (of Texas) was a “Schedule D” company and actively engaged in selling undivided interests in oil and gas leases located in the State of Texas to non-residents of the State of Texas. Upon dissolution, its assets vested in its parent, Spindle-top Oil & Gas Company. It had producing wells at the time of dissolution. The ownership of the wells was vested in the out-of-state investors and Spindletop Oil & Gas Company as the successor to the interests of Enntex Oil & Gas Company (of Texas). The term “dealer” as defined by Tex.Rev. Civ.Stat.Ann. art. 581 — 4(C) includes:

“ . . . every person or company, other than a salesman, who engages in this state, either for all or part of his or its time, directly or through an agent, in selling, offering for sale or delivery or soliciting subscriptions to or orders for, or undertaking to dispose of, or to invite offers for, or rendering services as an investment adviser, or dealing in any other manner in any security or securities within this state. . . . ” (Emphasis added.)

By managing the wells drilled by Enntex Oil & Gas Company (of Texas) which were owned jointly with out-of-state investors as a result of “Schedule D” offerings, Spindle-top Oil & Gas Company became a “dealer” under the Texas Securities Act, Tex.Rev. Civ.Stat.Ann. art. 581-1, et seq., irrespective of the fact that it did not attempt to sell any securities. It was dealing with securities which should have been licensed and regulated under the Act. The trial court found as a fact that Spindletop Oil & Gas Company dealt with securities and such finding supports the permanent injunction entered against it. Enntex Oil & Gas Company (of Texas) should have registered the securities (undivided interests in oil and gas leases) with the Securities Commissioner when it originally disposed of them. The securities were at the time of disposition, and are now, subject to regulation. Regulation cannot be avoided simply by a wrongdoer such as Enntex Oil & Gas Company (of Texas) transferring its assets.

Joe B. Owen and J. W. Heflin assert that the court had no jurisdiction to enter the permanent injunction against them because they were not served with process. This assertion is made even though they filed an answer in the trial court and appeared in this Court. By answering, these appellants entered an appearance in these proceedings thereby dispensing with the necessity for the issuance for service of citation upon them. Tex.R.Civ.P. 121.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ROBERTSON, Justice.

license: Public Domain

text:
    Carolyn D. (Burden) CASTERLINE, Appellant, v. Walter J. BURDEN, Appellee.
    No. 19340.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 14, 1977.

      C. Edward Fowler, Jr., Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellant.
    Charles 0. Shields, M. Troy Murrell, Anderson, Henley, Shields & Miller, Dallas, for appellee.
   ROBERTSON, Justice.

Walter J. Burden moved under § 14.-08(c)(2) of the Texas Family Code to modify the amount of his weekly child support obligation owed to the children of his former marriage to Carolyn D. Casterline. Upon trial to the court, judgment was rendered for Burden, and the child support obligation was reduced. Carolyn Casterline now appeals from that order. We affirm.

The initial question on the appeal is whether the trial court abused its discretion in reducing the amount of Burden’s weekly child support payments. If we conclude that the court properly reduced the payments, we must then decide whether the court erred in making the reduction retroactive to the date of the change in circumstances, and whether the award of attorney’s fees is supported by the evidence. Finally, we must determine whether the exclusion of Mrs. Casterline’s husband from the courtroom under Rule 267 of the Texas Rules of Civil Procedure was reversible error.

Reduction of the Obligation

The Domestic Relations Court had previously set Burden’s child support obligation at $65 per week for each of his two children. After a hearing on the motion to modify, however, the payments were reduced to $25 per week for each child. In support of this order, the trial court filed findings of fact and conclusions of law, in which it found that Burden was financially unable to pay the previously ordered amounts. Mrs. Casterline argues that this finding is not supported by the evidence. Alternatively, she contends that since the evidence shows that Burden incurred the income reduction voluntarily, the trial court abused its discretion in reducing the obligation. We cannot accept these arguments.

The evidence supports the finding of financial inability to meet support payments. At the time of the first decree, Burden had an income of approximately $680 per month as a salesman. His wife at that time, Mrs. Annette Burden, had income from separate property of approximately $12,000 per year. After rendition of this decree, however, Burden’s earnings decreased substantially. His sales job was terminated, and he ultimately accepted a position with the estate of his late father at a salary of $100 per week. This was a material and substantial change in Burden’s income, and supports the trial court’s finding of Burden’s current inability to pay the sums set forth in the first decree. Although Mrs. Casterline urges that the court should also have considered Burden’s ability to borrow as a part of his earning potential, we conclude that, as related to one’s financial ability to pay prospective child support, borrowed funds cannot be considered “income.” As used in Texas law, the term “income” ordinarily means the “gain which proceeds from property, labor or business.” Houston Belt & Terminal Ry. Co. v. Clark, 122 S.W.2d 356, 358 (Tex.Civ.App.—Austin, 1938 aff’d) 135 Tex. 388, 143 S.W.2d 373 (1940). By their very nature, borrowed funds are not a “gain” in themselves, for the act of borrowing contemplates not only repayment of the principal sum, but also payment of interest charges.

We recognize that the ability to borrow is a relevant factor in determining one’s ability to pay delinquent support in an application for writ of habeas corpus. See Ex parte Rohleder, 424 S.W.2d 891 (Tex.1967); Ex parte Hennig, Doc. No. 19444 (Tex.Civ.App.—Dallas 1977, no writ) (not yet reported); Ex parte Hart, 524 S.W.2d 365 (Tex.Civ.App.—Dallas 1975, no writ). However, the issue in a contempt habeas corpus proceeding is the ability to pay delinquent support which has already accrued, and not the modification of prospective support. If one lacks sufficient income to pay prospective support, it would be illogical to assume that one has sufficient income to repay a loan secured to meet the support obligation. Oppressive and unreasonable support obligations which arise due to a material change in circumstances are precisely the ill that § 14.08(c)(2) of the Family Code was designed to cure, and the right to modify a prior order would be substantially frustrated if one were required, as a prerequisite to relief, to borrow funds to pay prospective support. Such a requirement would merely substitute one oppressive obligation for another, further impair the supporting party’s ability to meet future payments, and invite contempt citations when those payments become delinquent. Viewed in this light, it is to a party’s advantage to move for modification at the earliest opportunity following a material change of circumstances, thereby avoiding potential imprisonment for contempt and the more stringent test of financial ability employed in contempt proceedings.

Mrs. Casterline next argues that even if the evidence supports the trial court’s finding of Burden’s inability to pay the support ordered in the original decree, the trial court abused its discretion in reducing the obligation. She argues that by quitting his higher-paying sales job and accepting less lucrative employment, Burden voluntarily reduced his income, and that such a voluntary income reduction is an improper basis for reducing support payments. We do not agree. Since there is no evidence that the income reduction was the product of a design to reduce the child support payments, it is immaterial that Burden’s problems may have been voluntarily incurred. Anderson v. Anderson, 503 S.W.2d 124, 126 (Tex.Civ.App.—Corpus Christi 1973, no writ); McSween v. McSween, 472 S.W.2d 307, 310 (Tex.Civ.App.—San Antonio 1971, no writ). The present case is distinguishable from Curtis v. Curtis, 448 S.W.2d 242 (Tex.Civ.App.—Austin 1969, no writ), for in that case, the father voluntarily left his job and made no effort to secure other employment. In this case, however, Burden attempted to secure other employment and later accepted a new job, although at a lower salary. The circumstances of this case do not approach the total disregard of responsibility exemplified in Curtis.

Retroactive Application

The trial court ordered that Burden’s child support obligation be reduced retroactively to the date he changed jobs, some four months after the motion to modify was filed. Mrs. Casterline argues that this retroactive reduction should only be effective prospectively from the date of the order for modification. We disagree. Section 14.08(c)(2) expressly states that “an order providing for support of a child may be modified only as to obligations accruing subsequent to the motion to modify.” Under this section, the trial court is empowered to retroactively modify support obligations which have accrued since the filing of the motion to modify. Since the present order only reduces obligations which have accrued after the motion to modify was filed, we hold that it was properly rendered under § 14.08(c)(2).

Contrary to Mrs. Casterline’s arguments, this case is not controlled by our supreme court’s holdings in Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618 (1951) and Rumpf v. Rumpf, 150 Tex. 475, 242 S.W.2d 416 (1951). Those cases hold that foreign support and alimony decrees can only be modified prospectively, the cases dealt with foreign decrees under the law of the foreign jurisdiction where the right to payment either vested upon the due date or had been reduced to judgment before suit in Texas. In those cases, retroactive modification was precluded by the full faith and credit clause of the United States Constitution. This principle does not apply here, however, since no foreign decree is involved in this case. Our legislature has not chosen to preclude retroactive modification by granting final judgment status to past due payments without judicial intervention. Had the legislature intended such a result, there would have been no need to enact § 14.09(c) of the Family Code, which provides for reduction of delinquent support payments to judgment upon motion of the custodial party. If the past due obligations had been reduced to judgment under § 14.09(c), modification of that final judgment might have been precluded as an impermissible collateral attack in the judgment; absent such a judgment, however, we hold that a reduction may be ordered retroactively to the filing of the motion to modify.

Mrs. Casterline’s final argument on this point is that the trial court’s $3,083 judgment for delinquent support was contrary to a stipulation of the parties that the accumulated arrearage was $6,123. We do not agree. According to the record, the stipulation only related to the sum which would be due if the motion for retroactive modification was overruled. Once the motion was granted, however, and the court decided to make the reduction effective from April 1, 1976, the court could then determine that judgment for only $3,083 in arrearage was appropriate. This could be done by taking judicial notice of the fact that there were 38 weeks between April 1, 1976 and December 27, 1976. The court could then determine that, having set the child support at $25 per week per child, it had effected a support reduction of $80 per week. By multiplying those figures, the court then could establish the total reduction for the intervening period at $3,040, which, when subtracted from the stipulated $6,123, leaves an arrearage of $3,083. Accordingly, we conclude that pursuant to the stipulation and the retroactive reduction, the court entered judgment for the correct amount of arrearage.

Attorney’s Fees

The trial court found that the sum of $2,200 was a reasonable amount of attorney’s fees for Burden to contribute toward payment of Mrs. Casterline’s attorney’s fees, and awarded judgment in that amount to Mrs. Casterline’s attorney. Mrs. Caster-line argues that the trial court’s finding of reasonableness was against the great weight and preponderance of the evidence, and accordingly, that it rendered judgment for an erroneous and insufficient sum. We disagree. The granting of attorney’s fees in domestic relations matters rests within the sound discretion of the trial court, and the court’s order will not be disturbed unless a clear abuse of discretion is shown. Clark v. Clark, 496 S.W.2d 659 (Tex.Civ. App. — Waco 1973, no writ); Hayes v. Hayes, 378 S.W.2d 375 (Tex.Civ.App. — Corpus Christi 1964, writ dism’d).

Mrs. Casterline’s counsel testified that he had expended 144.5 hours in the case, at an hourly rate of $50 per hour, for a total of $7,225. Although there is a sizeable difference between the amount claimed and the sum awarded, a court is not required to award a fee equal to the amount incurred by a party. The opinion testimony of the attorney is not conclusive, Trevino v. American National Insurance Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943); McFadden v. Bresler Malls Inc., 526 S.W.2d 258, 264 (Tex.Civ.App.—Austin 1975, no writ), and the court may consider a number of factors in making its decision, including the nature, difficulty and importance of the case, Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, 160 (1945), the amount of time and money involved, and the benefit derived by the client, Vaughn v. Gunter, 458 S.W.2d 523, 528 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.), the responsibility imposed upon counsel, and the skill and experience needed to perform the services. United Finance and Thrift Corporation v. Chapman, 369 S.W.2d 782, 784 (Tex.Civ.App.—Eastland 1963, no writ); Weatherly v. Longoria, 292 S.W.2d 139, 141 (Tex.Civ.App.—San Antonio 1956, writ ref’d n. r. e.). Further, in a domestic relations case it is proper to consider the relative conditions and needs of the parties, Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1005 (1950); Fortenberry v. Fortenberry, 545 S.W.2d 40, 42 (Tex.Civ.App.—Waco 1976, no writ).

In the present ease, there is evidence that some of the fee claimed by Mrs. Casterline’s attorney was based upon hours spent inquiring into the estate of Burden’s late father. Since the parties were aware that the estate was not subject to distribution during the pendency of this case, it would have been improper to include attorney’s fees based upon those services in this award. Even though we might have awarded a different sum, that is not a relevant factor absent a clear abuse of discretion by the trial court. Hayes v. Hayes, supra, 378 S.W.2d at 381. Under these circumstances, we conclude that the trial court did not abuse its discretion in awarding a lesser fee than that desired by counsel.

Exclusion Under the “Rule”

As her final contention, Mrs. Cast-erline argues that the court erred in excluding her husband from the courtroom under Rule 267 of the Texas Rules of Civil Procedure. According to her argument, her husband, although not named as a party, was a party in interest who should not have been excluded. In support of this contention, she cites Martin v. Burcham, 203 S.W.2d 807, 811 (Tex.Civ.App.—Ft. Worth 1947, no writ), which held the exclusion of the spouse of a party in a suit affecting the community estate to be reversible error.

The rationale of Martin was that when a suit jeopardizes the community estate, both spouses are parties in interest who are exempted from exclusion by the language of Rule 267. According to Martin, any exclusion must be reversible error because it would be difficult to demonstrate that the exclusion probably harmed the remaining spouse. Despite these problems of proof, we are not convinced that exclusion of a party’s spouse from the courtroom is necessarily reversible, rather than harmless error. We recognize that Mrs. Casterline’s husband did testify regarding his income, and that Burden’s counsel argued that the trial court should consider his income as a factor in reducing Burden’s support obligation. However, since there is sufficient evidence to support a reduction even without considering Mrs. Casterline’s testimony regarding his contribution to community income, we conclude that his absence from the courtroom did not prejudice his community interest or Mrs. Casterline’s case. Appellate courts are not permitted to reverse a judgment unless the court’s error was reasonably calculated to cause, and probably did cause an improper judgment. Holmes v. J. C. Penney Co., 382 S.W.2d 472 (Tex.1964). Accordingly, we hold that in a case concerning modification of child support, as distinguished from one directly affecting the community estate, the exclusion of a party’s spouse under Rule 267 is not reversible error unless prejudice is shown.

Affirmed.


author: COULSON, Justice.

text:
    INTER-CITY PROPERTIES, INC., Appellant, v. Dr. R. H. GIBBS et al., Appellees.
    No. 1728.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 21, 1977.
    Rehearing Denied Jan. 18, 1978.

      Kenneth C. Kaye, League City, for appellant.
    Douglas H. Chilton, Mabry, Herbeck & Chilton — Texas City, for appellees.
   COULSON, Justice.

This is an appeal from a judgment ordering the partition of real property. Since we conclude that the parties contractually waived their rights to partition, we reverse and render.

In 1954 three physicians, R. H. Gibbs, G. D. Ford and Dan H. Eames, purchased property in Galveston County as co-tenants. Shortly thereafter, in 1955, they entered into a written agreement which, among other things, restricted the use and occupancy of that land, and granted each co-tenant a preferential right to purchase the interests of the others. The agreement has a thirty year term.

In 1973 a dispute arose among the doctors concerning jointly owned x-ray equipment. As a result of this dispute Gibbs and Ford filed suit against Eames and others for conversion of the x-ray equipment, and against Inter-City Properties, Inc., Eames’ successor in interest to the real property, for partition. The suit for conversion was subsequently dismissed, and the sole matter involved in this appeal is a judgment granting partition by sale.

Although the right to partition is favored by the courts, and is protected by statute in Texas, it is well settled that this right may be waived or contracted away. E. g., Spires v. Hoover, 466 S.W.2d 344 (Tex.Civ.App. — El Paso 1971, writ ref’d n. r. e.). We find that several provisions of the 1955 contract constitute waivers of, or bars to, a suit for partition. Specifically, these are the grants of preferential rights to purchase given each of the co-tenants, the clause restricting occupancy of the property to the parties and to those others of whom all of the parties approve, and the clause restricting use of the property to medical offices and clinics. See Sibley v. Hill, 331 S.W.2d 227, 229 (Tex.Civ.App. — El Paso 1960, no writ); Annot., 132 A.L.R. 666 (1941).

The trial court submitted a special issue inquiring whether Gibbs and Ford intended to contract away their right to partition. This submission was improper, since the contract provisions in question are unambiguous, and their effect and consequence is a question of law. We are not bound by the jury’s answer. E. g, Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex.Sup.1962).

Although we hold that Gibbs and Ford are not entitled to judicial partition of their interests, it does not follow that they are without a remedy, since the contract contains a mechanism for the sale of a co-tenant’s interest. Section V of the agreement provides that should a co-tenant desire to sell his interest he may do so, subject to compliance with the provisions regulating the other co-tenants’ preferential rights to purchase. This section impliedly guarantees each party the right to sell his interest and good faith cooperation with such efforts will be required of the other parties.

Reversed and rendered.


author: McKAY, Justice.

text:
    KROGER COMPANY, Appellant, v. Ellen CELLAN, Appellee.
    No. 1061.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 22, 1977.
    Rehearing Denied Jan. 19, 1978.

      James S. Maxwell, Seay, Gwinn, Crawford, Mebux & Blakeney, Dallas, for appellant.
    James R. Fry, Nance, Caston, Duncan, Green, Stagner, Fry & Pelley, Sherman, for appellee.
   McKAY, Justice.

After consideration of appellant’s motion for rehearing, we withdraw our earlier opinion delivered on November 17, 1977, and substitute this opinion in lieu thereof.

This is a personal injury case arising from a fall by appellee in appellant’s parking lot. Trial was before a jury which found appellant guilty of negligence which proximately caused appellee’s injuries, and judgment was rendered for appellee for damages for pain and suffering and medical expenses. Appellant appeals from that judgment.

Appellee filed suit against appellant alleging that appellant was negligent in (1) creating and maintaining a dangerous and hazardous condition by allowing large cracks to exist in the concrete parking lot when appellant, through its employees, knew or, in the exercise of ordinary care, should have known that customers would be placed in a position of peril in using the parking lot, (2) failing to provide a safe parking lot for customers, and (3) failing to warn appellee of the condition. Appellee asked for damages of $2,629.48 for past medical expenses, $15,000.00 for past pain and suffering, and $15,000.00 for future pain and suffering, all as a result of appel-lee’s fall, which was caused by appellant’s negligence.

Defendant answered that there was no defect in the parking lot. In the alternative, appellant alleged that appellee was contributorily negligent in failing to keep a proper lookout and in several other respects which are not before us on appeal. Appellant also alleged that if any defect existed, such defect was open and obvious as a matter of law, that appellee assumed any risk by moving into the area, and that such occurrence was an unavoidable accident.

The evidence was submitted to a jury which found (1) at the time in question Kroger Company maintained the parking lot in a condition which involved an unreasonable risk of harm to persons upon its premises; (2) appellee’s fall was proximately caused as a result of her contact with that condition; (3) Kroger Company knew or should have known of the dangerous condition; (4) Kroger Company was negligent in failing to warn appellee of the condition of the parking lot; (5) such negligence was a proximate cause of appellee’s fall. The jury did not find that (1) appellee failed to keep a proper lookout, (2) failed to request help and assistance from employees of Kroger Company, (3) failed to wait for employees of Kroger Company to help and assist her, and (4) appellee’s failure to release the grocery cart was negligence. The jury found damages in the amounts of $4,250.00 for past and future pain and suffering and $2,657.48 for medical expenses.

Based on these findings, judgment was rendered in favor of appellee in the amount of $6,907.48, from which appellant has perfected this appeal.

We affirm the judgment of the trial court.

On the morning of June 5,1974, appellee, age 71, and her husband went to appellant Kroger’s store at 815 West Crawford Street, Denison, Texas, to purchase certain items. She had been going to this particular store since 1972.

After appellee went through the checkout lane to pay for her groceries, she then proceeded to leave the store through the only available door, pushing her own cart to the car. Once outside the store, Mrs. Cellan made her way through the parking lot where she fell, the cart tumbling down on top of her. There is a dispute in the evidence as to the location of her fall. As a result of the fall, Mrs. Cellan sustained a broken hip. Store employees took appellant to her home and called an ambulance. Appellant later brought this suit to recover damages resulting from her fall.

Appellant brings six points of error. Point 1 complains that the trial court erred in failing to disregard the jury’s answers to issues 1, 2, 3, 4 and 5 because there was no evidence to support these findings. Point 2 complains that such findings on these same issues were without sufficient evidentiary support, and contrary to the great weight and preponderance of the evidence. Point 4 says there was no evidence to support the answers of the jury to issues 6 and 7. A “Motion for Judgment Non-Obstante Vere-dicto or Motion to Disregard Certain Special Issues” was filed of record in the case, but nowhere does it appear of record that the court acted upon said motion. Appellant, therefore, complains of a nonexistent error of the trial court.

However, the liberal rebriefing procedures provided by the Rules of Civil Procedure would permit appellant Kroger Company to amend its brief and properly present its points of error. Texaco, Inc. v. Joffrion, 363 S.W.2d 827, 830 (Tex.Civ.App.-Texarkana 1962, writ ref’d n. r. e.); Tex. R.Civ.P. 422, 429, 431 and 437. We will assume that appellant has properly preserved both his legal and factual insufficiency points of error by directing us to an alleged error of the trial court. Nevertheless, appellant’s points of error are multifarious. A point of error which embraces more than one specific ground of error or which attempts to attack several distinct and separate rulings of the trial court will be considered multifarious, in violation of Rule 418, and not entitled to review. Pine v. Gibraltar Savings Assn., 519 S.W.2d 238, 244 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.); Blackmon & Associates, Inc. v. Palmer Buildings Supplies & Specialties, Inc., 463 S.W.2d 228, 231 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.); International Security Life Ins. Co. v. Howard, 456 S.W.2d 765, 766 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.). Appellate courts have given a liberal interpretation of the rules in favor of the sufficiency of an appellant’s brief and frequently consider general and multifarious points of error where, from the statements and arguments under the point, the nature of appellant’s complaint can be determined. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943); Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566, 573 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.). Therefore, giving appellant’s points of error 1 and 2 a liberal interpretation, we will consider them.

In considering appellant’s contention that there is no evidence to support the jury’s findings to special issues 1, 2, 3, 4 and 5 we may consider only the evidence and inferences in support of the jury’s finding, while disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We hold that there is evidence to support the jury’s findings to special issues 1, 2, 3, 4 and 5. Appellant’s point 1 is overruled.

In examining the factual sufficiency of the evidence to support the jury’s findings to special issues 1, 2, 3, 4 and 5, we must consider the whole record to determine if the jury’s answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). After a review of the entire record and after having weighed and balanced all the evidence, both that in favor of and against the verdict, we are of the opinion that we would not be justified in concluding that the findings of the jury in regard to special issues 1, 2, 3, 4 and 5 were so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point 2 is overruled.

In Point 3 appellant states that the trial court erred in failing to find that the cracks in the parking lot were “open and obvious” as a matter of law. We disagree.

An occupier has no duty to a business invitee if the condition is so patently open and obvious that the invitee will be charged with knowledge of the condition. Scott v. Liebman, 404 S.W.2d 288, 293 (Tex.1966); Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963). Appellant directs us to several cases which would attempt to bring the facts of this case within the above rule. See Marshall v. San Jacinto Building, Inc., 67 S.W.2d 372 (Tex.Civ.App.-Beaumont 1933, writ ref’d); Beall Brothers, Inc. v. Benton, 478 S.W.2d 157 (Tex.Civ.App.-Tyler 1972, no writ); H. E. Butt Grocery Co. v. Israel, 544 S.W.2d 769 (Tex.Civ.App.—Waco 1976, no writ). However, none of the cases deal squarely with the facts with which we are confronted.

Although appellee had shopped at the particular store many times, there was no showing that she had been over the portion of the parking lot containing the defect on any previous occasion. The crack in the parking lot was not a static condition, such as a slab or a mat in an entrance to a building. Appellant’s assistant manager, Mr. Blazek, testified that the crack could not be seen unless one were right upon it. In addition, appellee testified that she was watching for moving vehicles in the parking lot. Such actions are a necessity in any parking lot. We, therefore, hold that the cracks in the parking lot were not so open and obvious as to charge one with knowledge of their existence. The point is overruled.

Appellant’s point 4 is defective in the same respects as were points 1 and 2. Therefore, as with points 1 and 2, we will consider it based on a liberal interpretation of the rules in favor of the sufficiency of an appellant’s brief.

Appellant contends in point 4 that there is no evidence to support the jury’s answers to special issues 6 and 7 that appel-lee did not fail to keep a proper lookout. A party with the burden of proof on an issue who receives an adverse jury finding should properly complain of the legal sufficiency of the evidence with “as a matter of law” terminology. Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.).

Considering only the evidence and inferences in support of the jury’s answers to special issues 6 and 7, while disregarding all evidence and inferences to the contrary, we hold that there is some evidence to support those answers. Appellant’s point 4 is overruled.

Point 5 complains that the trial court erred in overruling appellant’s motion for new trial because the jury’s answers to special issues 6 and 7, concerning whether appellee failed to keep a proper lookout, were against the great weight and preponderance of the evidence. We must look at the whole record to determine if the jury’s answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). After a review of the entire record and after having weighed and balanced all the evidence, both that in favor of and against the verdict and judgment, we are of the opinion that we would not be justified in concluding the findings of the jury in regard to special issues 6 and 7 were so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point 5 is overruled.

By Point 6 appellant complains that the trial court refused to grant its motion to reopen for the purpose of introducing further evidence.

At any time before completion of a trial the trial court may permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. Rule 270, T.R.C.P. It is within the sound discretion of the court to allow a party to reopen his case after having rested it. Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471, 476 (1945); Wofford v. Miller, 381 S.W.2d 640 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). Further, there must be a showing of diligence upon the part of the moving party in making such a request. Highlands Underwriters Insurance Company v. Martin, 442 S.W.2d 770, 772 (Tex.Civ.App.—Beaumont 1969, no writ). Appellant made an attempt in its bill of exception to show diligence was used in timely obtaining evidence sought to be offered. The witness appellant sought to use if permitted to reopen was a Kroger checker who checked appellee’s groceries on the day of her fall. The checker was an employee of appellant and apparently available to appellant’s counsel at all times. We hold that appellant failed to demonstrate due diligence on its part in producing this evidence at the trial before the close of the evidence. It also appears that any additional testimony would have been merely cumulative of testimony already adduced.

We hold that the refusal of the trial court to reopen the testimony was not an abuse of its discretion and that the additional testimony was not necessary to the due administration of justice.

Appellant’s motion for rehearing is overruled, and the judgment of the trial court is affirmed.


author: KEITH, Justice.

text:
    SLENDERBOLIC HEALTH INDUSTRIES, INC., et al., Appellants, v. Sol BORIDY, Appellee.
    No. 8032.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 22, 1977.
    Rehearing Denied Jan. 13, 1978.

      Mark A. Salvato, Houston, for appellants.
    George M. Bishop, Houston, for appellee.
   KEITH, Justice.

Defendants below appeal from an adverse judgment non obstante veredicto wherein plaintiff sought overtime compensation, liquidated damages, and attorneys’ fees pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-16 (1965), §§ 217-19 (1975), as amended (Supp.1965-75), and (Supp.1977) [hereinafter referred to as “Act”].

Plaintiff filed this cause of action contending that he was an employee of defendants within the definition of 29 U.S.C.A. § 203(e)(1) (Supp.1965-75) and, therefore, was entitled to overtime compensation pursuant to 29 U.S.C.A. § 207(1965), as amended (Supp.1977).

Defendants answered that plaintiff was employed in an administrative or professional capacity and, therefore, was not entitled to overtime compensation pursuant to 29 U.S.C.A. § 218(a)(1) (Supp.1977).

At trial the jury was given the following instruction:

“Under the applicable law, the term, ‘employee employed in a bona fide administrative capacity’ means any employee whose primary duty consists of the performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer’s customers, which includes work requiring the exercise of discretion and independent judgment.”

The jury found in answer to Special Issue No. 2 that the plaintiff was employed by defendants in a bona fide administrative capacity as defined by the court. However, the court entered a judgment non obstante veredicto for plaintiff after disregarding the jury’s answer to the second issue. Defendants’ three points of error all challenge this action of the trial court; thus, the sole question is whether there is some evidence to support the jury’s finding that plaintiff was employed in an administrative capacity. We have no cross points.

Although plaintiff’s cause of action was created by a federal statute, our procedural problem must be determined under the statutes and rules governing our state practice. Munn v. Mohler, 251 S.W.2d 801, 803 (Tex.Civ.App.-Waco 1952, no writ). The rule has also been applied in cases arising under the Federal Employers’ Liability Acts, 45 U.S.C.A. §§ 51, 53 (1972). Missouri Pacific Railroad Company v. Cross, 501 S.W.2d 868, 870 (Tex.1973). See also 48 Am.Jur.2d Labor and Labor Relations § 1694, at 1048 (1970); Annotation, 168 A.L.R. 1177, 1178 (1947).

A long and unbroken line of decisions by our state courts requires that we review the evidence, in the posture in which this case reaches us, in the most favorable light in support of the jury’s findings and disregard all evidence to the contrary. See, e. g., Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); Murphy v. Hammons, 509 S.W.2d 845, 846 (Tex.1974); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Before dealing with the evidence found in our record, we must first establish some guidelines governing our review of this cause of action resting, as it does, upon an Act of Congress. First, we note that an employer who claims an exemption under the Act has the burden of showing that the exemption provision relied upon applies to his case. Mitchell v. Kentucky Finance Co., 359 U.S. 290, 291, 79 S.Ct. 756, 3 L.Ed.2d 815, 817 (1959). Second, exemption will be limited to those who come plainly and unmistakably within the terms and spirit of the Act. Phillips v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095, 1099 (1945).

When we follow the rules governing our factual review of the evidence, we find that plaintiff was hired because of his prior management background and qualifications in a position as a management trainee. He was sent to the Dallas establishment operated by defendants to hire and train employees and to operate the place of business. His primary duty consisted of (in the language of the charge) “non-manual work directly related to management policies which include[d] work requiring the exercise of discretion and independent judgment.”

There being some evidence in the record supporting the jury’s finding, under the prevailing authorities we are required to sustain the defendants’ no evidence point. Harbin v. Seale, 461 S.W.2d 591 (Tex.1970). We now render the judgment which should have been rendered by the trial court: that the plaintiff recover nothing from the defendants.

REVERSED and RENDERED.

      . Section 203(e)(1) provides that “the term ‘employee’ means any individual employed by an employer.”

      . Section 213(a)(1) provides that the overtime pay requirement does not apply to “any employee employed in a bona fide executive, administrative, or professional capacity . . .”


author: REYNOLDS, Justice.

text:
    Homer SUDDERTH and wife, Shirley Sudderth, Appellants, v. Freddie HOWARD and wife, Billie L. Howard, Appellee.
    No. 8843.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 27, 1977.
    Rehearing Denied Jan. 23, 1978.

      Huffaker & Green (Gerald Huffaker), To-hoka, for appellants.
    Garner, Vickers &' Purdom (Robert E. Garner), Lubbock, for appellee.
   REYNOLDS, Justice.

Homer Sudderth and his wife, Shirley Sudderth, initiated this litigation to (1) cancel their deed purportedly conveying their homestead to Freddie Howard and his wife, Billie L. Howard, and (2) recover statutory usury penalties from the Howards for the alleged usurious transaction. Based on a single jury finding that the deed, coupled with an option to repurchase, was not intended as a sale, the trial court rendered judgment cancelling the deed, decreeing that the Howards recover from the Sud-derths the amount of the recited purchase price with statutory interest, and denying the Sudderths any recovery on their claim of usury. We conclude that the affirmative aspects of the judgment are supported by the appellate record, which establishes that the Sudderths waived their ground of recovery for usury. Affirmed.

Homer Sudderth and Shirley Sudderth owned three hundred twenty acres of land situated in Yoakum County. One hundred twenty acres were encumbered and the remaining two hundred acres were designated as the homestead. The Internal Revenue Service had posted a notice to sell the farm on 2 July 1975 to enforce the collection of a tax lien for almost $6,000 owed by the Sudderths for unpaid income taxes.

Through a banker to whom he applied for a loan, Homer Sudderth was introduced to Freddie Howard. After some discussion between Sudderth and Howard, an attorney was consulted. Thereafter, Sudderth and Howard executed on 27 June 1975 a written contract whereby Sudderth agreed to sell, and Howard agreed to buy, the 200 acres for $17,400 cash. Howard escrowed a sum approximating the amount of the tax lien, and Internal Revenue Service did not proceed with its sale.

On 25 July 1975, Homer Sudderth and his wife, Shirley Sudderth, executed a deed conveying their 200-acre homestead to Freddie Howard and his wife, Billie L. Howard, for a stated consideration of $17,-400 cash, which was paid. On the same date, Homer Sudderth and Freddie Howard executed a written instrument granting Sudderth a first option, to be exercised by written notice given thirty days before 15 December 1975, to repurchase the property for a purchase price of $20,010 cash, plus any accrued taxes, on or before 15 December 1975.

Sudderth gave Howard written notice dated 11 November 1975 that he intended to exercise, and was ready to perform the terms of, the option to repurchase the 200 acres for the purchase price stated in the agreement. On 16 December 1975, Howard notified Sudderth in writing that his tenancy on the land had terminated and demanded delivery of possession on or before thirty days after that date.

Commenced 22 December 1975, this suit was filed by the Sudderths against the Howards. The Sudderths alleged that the 25 July 1975 transaction actually was a loan of $17,400 to them with an interest charge of $2,610, which totals the $20,010 repurchase price stated in the option, under the subterfuge of a sale and repurchase option to evade the homestead and usury laws. The Sudderths sought (1) cancellation of their deed on the theory that its purpose was to circumvent the homestead laws, and (2) forfeiture of the principal amount of the loan (the recited purchase price in the deed) and recovery of twice the amount of interest charged or contracted for, together with reasonable attorney’s fees, latér stipulated to be a maximum of $9,000 if the Sudderths prevailed, on the theory that the transaction constituted a usurious loan.

At the jury trial, the evidence was conflicting on the nature of the transaction. Sudderth testified that he entered into the transaction, not to sell his place but to consummate a loan after being told that it was the only way he could get a loan. He said that if he were willing to sell, he would have asked $60,000. There was evidence that $17,400 was the sum the Sudderths needed for their pressing debts and living expenses. It is recorded that Internal Revenue Service would not agree to postpone its sale if the contract contained a repurchase option; that Howard, wanting a fifteen percent “increase” or, according to the attorney, “interest” on his money, admitted the option was a part of the transaction from the beginning; and that the only condition on which the Sudderths would sign a deed was if there was an option to repurchase. Mrs. Sudderth stated that she never discussed selling the land, but a loan was discussed and, when she entered into the transaction, she was under the impression that they were getting a loan. She would not have signed the deed, she said, if she had known it was not a loan. There was testimony that the recited purchase price, which computes to $87 an acre, was not a fair price when compared to the $150 to $160 per acre worth assigned to the land by Howard and the $250 to $500 per acre value given by other witnesses. Apparently, there was no discussion of the conditions usual to a transfer of ownership and possession, and the Sudderths planted a wheat crop on the land after the transaction was consummated.

Contrastively, there was testimony that Sudderth was told by an attorney that he could not borrow money on his homestead; and that Howard was not interested in loaning money, but was willing to buy the land for $17,400 which, according to Howard, was the amount Sudderth wanted for the land. The contract prepared a month before the deed and option made no mention of an option to repurchase. The deed was absolute on its face and the option to repurchase did not obligate Sudderth to exercise it. The attorney who prepared the instruments and closed the transaction testified that no one ever represented, suggested, implied or in any way inferred that the transaction was anything other than a bona fide sale. Although Mrs. Sudderth was under the impression that the transaction was a loan, she acknowledged that she knew she was signing a deed and not a mortgage, and that she knew the difference between them.

Only one issue was submitted to the jury and, in answer thereto, the jury found that the 25 July 1975 transaction was not intended as a sale of the land. Accepting the verdict, the trial court rendered judgment setting aside the deed, granting the How-ards recovery from the Sudderths of the sum of $17,400 with interest thereon at the rate of nine percent per annum, and denying all relief not specifically granted.

Although the court, in responding to the Sudderths’ amended motion for new trial, was of the opinion that a new trial should be granted, the parties requested the court to, and the court did, overrule the amended motion for new trial so that questions of law could be determined on appeal. The Sudderths, advancing eleven points of error, occupy the position of appellants on this appeal, and the Howards, answering and asserting three cross-points, are appellees.

Considered first as a group are all of the Sudderths’ points of error, except points four and six which are afterwards discussed. The crux of points one through three and point five is the contention that the Sudderths are entitled to judgment decreeing forfeiture of the $17,400 principal and recovery of twice the $2,610 interest charged or contracted for, plus attorney’s fees, because the transaction was, as a matter of law, usurious. By the last five points, error is charged to the court in failing to submit two requested special issues and an instruction bearing on the subject of a pretended sale, and in overruling four objections made to the charge for the failure to submit a different shade of the issue submitted and the omission of issues on the factual questions of usury.

For a proper consideration of the points, it is necessary to notice the pleadings and the proceedings. The Sudderths’ allegations of entitlement to cancellation of their deed are based on the declarations in Article 16, Section 50, of the Texas Constitution that “No mortgage, trust deed, or other lien on the homestead shall ever be valid * * * and all pretended sales of the homestead involving any condition of defeasance shall be void.” If the instrument executed by the Sudderths in the form of a deed to their homestead was not intended to evince a sale, they had the right to bring suit to assert that it was in fact and in law a mortgage. Cf. Rich v. Walker Smith Co., 57 S.W.2d 1098, 1099 (Tex. Comm’n App.1933, holding approved).

Allegations that the Sudderths were entitled to recover for usury are founded on Vernon’s Ann.Civ.St. art. 5069-1.01, et seq. (1971). Section 1.02 of the article establishes that “(a) greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious.” Section 1.06 gives the obligor a right of action against “(a)ny person who contracts for, charges or receives interest which is greater than the amount authorized.” Recovery under the authorized action is, by virtue of subsection 1.06(1), twice the amount of interest contracted for, charged or received plus reasonable attorney’s fees; however, if such interest is in excess of double the amount of interest allowed, subsection 1.06(2) provides for the additional penalty of forfeiture of all principal.

Obviously, then, the Sudderths pleaded two independent grounds of recovery: (1) the right to cancellation of the deed based on a constitutional ground; and (2) the right to recover penalties for usury based on a statutory ground. Although both grounds of recovery pleaded grew out of the same transaction, the grounds of recovery are separate from each other and, because either ground could be pursued to the exclusion of the other, neither ground of recovery is dependent on the other.

The record is clear that the parties agreed, with the consent of the court, that all objections to the court’s charge could be made within ten days from the submission of the charge to the jury, but dated and filed in such a manner to appear that they were made before submission of the charge, and that no party would complain on appeal that the objections were not made before the case was presented to the jury. While the jury was deliberating, the parties, with the court’s approval, extended the time to make objections for an additional fourteen days. The objections to the charge which the Sudderths now advance as error were first presented after the charge was read to the jury and the jury had returned its verdict in response thereto.

Rule 272 (1976) mandates that in every instance, on penalty of waiver, objections to the court’s charge shall be presented to the court in writing, or dictated to the court reporter in the presence of the court and opposing counsel, before the charge is read to the jury. A main purpose of the rule is for the court to have the benefit of counsels’ objections to enable a proper charge to be submitted to the jury. Thus, an agreement of the parties, even with the consent and approval of the court, which calls for objections to be presented after the charge is read to the jury violates the rule, defeats one of its main purposes, and results in a waiver of the late objections. Missouri Pacific Railroad Company v. Gross, 501 S.W.2d 868, 872-73 (Tex.1973).

Furthermore, Rule 279 is specific that the failure to submit an issue upon which one relies for recovery shall not be a ground for reversal of the judgment unless its submission, in substantially correct wording, has been requested and tendered in writing. The rule is no less specific in declaring that upon appeal all independent grounds of recovery not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived. Here, the appellate record gives no indication that the Sudderths requested any issue concerning their independent ground of recovery for usury which, as they recognize in their waived objections to the court’s charge, involved disputed factual issues.

Consequently, the Sudderths have waived all objections to the court’s charge and their independent ground of recovery for usury. Points one through three, five, and seven through eleven are overruled.

Notwithstanding, the Sudderths submit by their fourth point that the court, in overruling their motion for judgment, made a finding which, as a matter of law, establishes the transaction as usurious. We cannot ascribe that effect to the court’s language.

In its order overruling the Sud-derths’ motion for judgment on all of their pleaded causes, the court included this language:

and the court finds, based upon the jury’s verdict, that the true intent of the parties in the execution of the deed and Option to Repurchase was to secure the defendant, Freddie Howard, in the repayment of the sum of $17,400.00, plus an advance in the amount of $2,610.00 to be paid on December 15, 1975, but that said transaction does not constitute usury under the laws of the State of Texas.

Here, irrespective of any interpretation that arguably may be placed on what the court “finds, based upon the jury’s verdict,” we may not, procedurally, treat it as a finding, Murray v. Brazzel, 438 S.W.2d 382, 384-85 (Tex.Civ.App.-Waco 1969, writ ref’d n. r. e.), for the power of a judge to make factual findings where none are submitted or requested in a jury trial does not extend to independent grounds of recovery. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85 (1940). Point four is overruled.

The Sudderths’ sixth point is that the court erred in rendering judgment against them for $17,400 plus interest in the absence of any pleadings by the Howards for that sum and interest. We will not disturb the judgment on this point.

The Sudderths sought to cancel their deed on the theory that it actually evinced a mortgage, and not a sale, to secure a loan to them of $17,400. They persuaded the jury that the transaction was not intended as a sale, thereby securing a cancellation of their deed. It is axiomatic that he who seeks equity must do equity, and one seeking cancellation of an instrument cannot repudiate it and retain the benefits received therefrom; he should offer or tender a restoration and the court can accomplish that result by its judgment. Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 91 (1955). By its judgment rendered here, the court did so. The sixth point is overruled.

By the second of their three cross-points, the Howards contend that the Sudderths are estopped by the testimony which is consistent with the written agreements to claim the deed was a mortgage. What the constitution declares void cannot be made valid by an agreement between the primary parties and, if the land were in law and in fact the Sudderths’ homestead, the execution of the instruments will not estop the Sudderths from asserting their homestead rights in this litigation, Rich v. Walker Smith Co., supra, at 1099, and no estoppel can arise in favor of the Howards based on declarations of the Sudderths, made orally or in writing, contrary to the fact. Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12, 13 (1890). The second cross-point is overruled.

With their first cross-point, the Howards attack the jury’s finding for lack of any evidence and factually sufficient evidence to support it. The evidence, á summary of which is stated above, has been reviewed under the prescribed standards. There is, of course, some evidence in support of the finding and we cannot say, with due regard for the jury’s prerogatives, that the evidence in support of the finding is so weak, or the contrary evidence is so overwhelming, that the finding should be set aside. The first cross-point is overruled.

The third cross-point is neither briefed nor argued. It is, therefore, waived. Frazier v. Wynn, 492 S.W.2d 54, 61 (Tex.Civ.App.—Amarillo 1973, writ refd n. r. e.).

The judgment is affirmed.

       The homestead designation is legally described as the East 200 acres out of the South one-half (S/2) of Section 2, Block D, John H. Gibson survey, Yoakum County, Texas, save and except all of the oil, gas and other minerals in, on, under and that may be produced from said property.

      . The issue and the jury’s answer are in the following form:
      Do you find from a preponderance of the evidence that the true intent of the parties, Homer T. and Shirley Sudderth and Freddie and Billie Howard, was that the deed and option to repurchase was not a sale of the land in question on July 25, 1975?
      Answer “It was a sale” OR “It was not a sale.”
      ANSWER: It was not a sale.

      . All rules cited are the Texas Rules of Civil Procedure.


author: ROBINSON, Chief Justice.

text:
    In the Matter of the ESTATE of Rachel Moores SWIFT, Deceased.
    No. 8816.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 27, 1977.
    Rehearing Denied Jan. 23, 1978.

      James D. Swift, Jr., pro se.
    Lovell, Lyle, Renfer & Sanders, Michael R. Sanders, Clarendon, for appellee.
   ROBINSON, Chief Justice.

The County Court of Donley County denied a motion of James D. Swift, Jr., to dismiss the temporary administration of the estate of Rachel Moores Swift, deceased. The record on appeal does not include either a statement of facts or findings of fact and conclusions of law. Affirmed.

The record in the cause before us reveals that appellant did not make a request for a court reporter until the day of the hearing. No court reporter was regularly assigned to the court. Since no court reporter was available, the proceedings were recorded on a recording machine. The record does not reveal that appellant objected to this procedure. Certain tapes, purporting to be a recording of the hearing, were forwarded to this court. This court declined to accept the untranscribed tapes as a statement of facts and ordered their return. At appellant’s request, he was given an extension of time for the filing of the statement of facts so that he might have the tapes transcribed. No transcription or other statement of facts has been forwarded to this court.

Appellant contends that the trial court erred in failing to have a competent court reporter take down the testimony at the trial. We overrule this contention. The County Court of Donley County is governed by Art. 2327, Tex.Rev.Civ.Stat.Ann. (1911) which provides in part:

When either party to a civil case pending in the county court or county court at law applies therefor, the judge thereof shall appoint a competent stenographer, if one be present, to report the oral testimony given in such case.

Appellant has not brought himself within the requirements of Art. 2327. Under the express wording of the statute, the duty to provide a stenographer is imposed only when a competent stenographer is present or, in any event, when one is available. “If the party desiring a stenographer wishes to avail himself of the mandatory provision of the statute, it is incumbent upon him to bring about the conditions under which such provision arises, or, in any event, to make the demand at such seasonable time as may enable the county judge to provide a stenographer without necessitating a delay in the trial.” Universal Life Ins. Co. v. Larremore, 32 S.W.2d 964 (Tex.Civ.App.—Austin 1930, writ dism’d); Lindsey v. Caston, 118 S.W.2d 843 (Tex.Civ.App.—Austin 1938, no writ).

In the absence of a statement of facts we are unable to say that the trial judge abused his discretion in refusing to dismiss the temporary administration. Without a statement of facts, or findings of fact and conclusions of law, it will be presumed that every fact necessary to support the judgment within the scope of the pleadings was proved at the trial. Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549 (1946).

The transcript includes three instruments denominated Bills of Exception Nos. 1, 2, and 3. The instruments are not approved by the trial judge, and are not bystander’s bills. They present nothing for review. Sisk v. Randon, 123 Tex. 326, 70 S.W.2d 689 (Tex. Comm’n App. 1934, opinion adopted).

Appellant contends that the trial court erred in refusing his bills of exception. However, there is no official record before us of the hearing on appellant’s proffered bills of exception. Thus the record is insufficient for us to sustain appellant’s points of error in that regard. Goodpasture v. Coastal Industrial Water Authority, 490 S.W.2d 883 (Tex.Civ.App.—Houston [1st Dist] 1973, writ ref’d n. r. e.); Flora v. Scott, 398 S.W.2d 627 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.).

Each of appellant’s points of error is overruled. The judgment of the trial court is affirmed.


text:
    Mark DELK, Appellant, v. CITY OF DALLAS, Appellee.
    No. 8518.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 27, 1977.
    Mark Delk, Dallas, for appellant.

      Lee E. Holt, City Atty., Jerry T. Steed, John E. Kirby, Asst. City Attys., Dallas, for appellee.
   ODEN, Justice.

The appeal involves the jurisdiction of the 116th Judicial District Court of Dallas County, Texas. Appellee (City of Dallas) instituted suit against appellant (Mark Delk) for Two Hundred Thirty-two and No/100 Dollars ($232.00) delinquent ad va-lorem personal property taxes and for foreclosure of a tax lien against certain personal property alleged to be of a value in excess of Five Hundred and No/100 Dollars ($500.00). Mark Delk filed a plea to the jurisdiction in which he alleged that the averments in the petition pertaining to ownership of the personal property were false and fraudulently made for the purpose of conferring jurisdiction. It was stipulated at the hearing on the plea to the jurisdiction that Mark Delk did not own the personal property at the time the City of Dallas instituted these proceedings. The plea to the jurisdiction was overruled and judgment was ultimately entered in favor of the City of Dallas in the amount of One Hundred Ninety-four and 48/100 Dollars ($194.48) and for foreclosure of its tax lien against whatever interest Mark Delk might have in the personal property.

In order for the District Court to entertain jurisdiction in a suit to foreclose a lien on personal property the petition must show that either the amount of the debt or the value of the property being foreclosed on is within its jurisdictional limit. Corsicana Independent School District v. Corsicana Venetian Blind Co., 270 S.W.2d 296 (Tex.Civ.App. Waco 1954, no writ). The allegations in the petition should be accepted as true by the trial court in determining a jurisdictional dispute unless it is made to appear by pleading and proof that such allegations were fraudulently made to confer jurisdiction. Corsicana Independent School District v. Corsicana Venetian Blind Co., supra, and cases cited therein.

The City of Dallas alleged in its petition that the value of the personal property to be foreclosed on was in excess of Five Hundred and No/100 Dollars ($500.00). This was within the jurisdictional limits of the District Court. Tex.Const. art. V, Sec. 8. Mark Delk cannot support his plea to the jurisdiction by simply showing he did not own the personal property at the time the suit was filed. He must plead and prove that the allegations pertaining to ownership of the personal property were not only false but also fraudulently made for the purpose of conferring jurisdiction. There is no evidence in the record to support the charge that the City of Dallas made a fraudulent allegation in its petition in order to confer jurisdiction in the District Court, and, under the circumstances, the District Court had to accept such allegations as true for purposes of determining jurisdiction.

Mark Delk specially excepted to the City of Dallas’s petition because it did not specify the statute, charter provision or other legal source which enabled it to assess and/or levy taxes upon his property. The special exception was overruled. The trial court did not err in overruling the special exception because the Dallas Charter is a public act which need not be pled. O’Connor v. City of Laredo, 167 S.W. 1091 (Tex.Civ.App. San Antonio 1914, no writ).

The judgment of the trial court will be affirmed.


author: OSBORN, Justice.

text:
    L. F. BAUER, Appellant, v. The VALLEY BANK OF EL PASO, Appellee.
    No. 6665.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 28, 1977.
    Rehearing Denied Jan. 25, 1978.

      Pearson & Caballero, Raymond C. Caballero, Robert Warach, El Paso, for appellant.
    Fisk & Cox, Sanford C. Cox, Jr., El Paso, for appellee.
   OPINION

OSBORN, Justice.

This is an appeal from a judgment based upon a promissory note and a guaranty agreement. We affirm.

The Valley Bank of El Paso brought suit upon a promissory note of Gateway Investment Company and a written guaranty agreement signed on the same date as the note by Carlton C. Freed and L. F. Bauer, officers of Gateway. Only Mr. Bauer appeals from the judgment in favor of the Bank. In his answer, Mr. Bauer pled a general denial, and also affirmatively alleged that at the time the guaranty was signed, the President of the Bank represented that no reliance would be placed on the guaranty agreement. The note and guaranty agreement were received into evidence with proof that no payment had ever been made on the note. Mr. Bauer testified that he was told he would never be called upon to honor the guaranty. That testimony was contradicted by witnesses for the Bank. In the only issue answered by the jury, they found that the Bank did not make a representation to Mr. Bauer that he would not be guarantying the debt of Gateway.

The Appellant presents six points of error. The first three complain of the entry of judgment for Appellee when there was no special issue requested or answered favorably to the Bank, other than on the defensive issue of misrepresentation. The contention is presented that there should have been issues submitted to the jury as to whether or not there was a meeting of the minds on the guaranty agreement, whether or not there was a binding contract, and whether or not there was any consideration for the agreement.

Appellant did not deny the execution of the guaranty agreement, nor did he assert that the agreement was without consideration. Without a sworn plea under Rules 93(h) and (j), Tex.R.Civ.P., those issues were not before the trial Court. Since execution of the guaranty agreement was not an issue, it was only necessary that the agreement be introduced into evidence to prove up its terms. American Fiber Glass, Inc. v. General Electric Credit Corporation, 529 S.W.2d 298 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.); American Petrofina Company of Texas v. Bryan, 519 S.W.2d 484 (Tex.Civ.App.—El Paso 1975, no writ); VanHuss v. Buchannan, 508 S.W.2d 412 (Tex.Civ.App.—Fort Worth 1974, writ dism’d). In Safway Scaffolds Company of Houston v. Sharpstown Realty Company, 409 S.W.2d 883 (Tex.Civ.App.—Waco 1966, no writ), the court said:

“ * * * In the absence of a verified denial of the execution by defendants or by their authority of the written instruments upon which the pleading is founded, under Rule 93(h), Texas Rules of Civil Procedure, the instruments were received in evidence as fully proved. Newborn v. Spiro, Tex.Civ.App., 387 S.W.2d 769; Ship Ahoy v. Whalen, Tex.Civ.App., 347 S.W.2d 662; Butler v. Merchants Nat. Bank of Mobile, Tex.Civ.App., 325 S.W.2d 229; Manning v. Barnard, Tex.Civ.App., 277 S.W.2d 160, writ ref. n. r. e. See Collins v. F. M. Equipment Co., 162 Tex. 423, 347 S.W.2d 575.”

The agreement as received into evidence fully proved the indemnity obligation of Mr. Bauer. There being no issue raised on execution, consideration, or ambiguity, there was no issue to present to the jury, other than the defensive issue of misrepresentation and that issue was decided adversely to Appellant. The first three points of error are overruled.

Appellant next asserts that since only a defensive issue was submitted to the jury, the trial Court thereby placed the burden of proof for the entire case on the Appellant, who was a Defendant in the trial Court. This is not so at all. The guaranty agreement, when received into evidence, established the Appellant’s liability, subject to defensive issues, and Appellee thereby met its burden of proof. Appellant’s argument with regard to the right to open and close where it had the burden on the only issue submitted has not been preserved by proper assignment in the amended motion for new trial and may not be considered. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). Point of Error No. IV is overruled.

The Appellant next contends that the net effect of the trial Court’s charge was to grant Appellee an instructed verdict and that such was error. The Appellee did, in fact, make a motion for instructed verdict at the close of the evidence, which the trial Court overruled. The Court correctly overruled such motion because there was a defensive issue to be submitted to the jury. But there was no fact issue as to the Bank’s case as pled and proved on the guaranty agreement and the Court was not required to submit any issue on a fact which was not in dispute. Rule 277, Tex.R.Civ.P.; Wright v. Vernon Compress Company, 156 Tex. 474, 296 S.W.2d 517 (1956); Burbridge v. Rich Properties, Inc., 365 S.W.2d 657 (Tex.Civ.App.—Houston 1963, no writ); Hall v. Texas State Bank, 298 S.W.2d 188 (Tex.Civ.App.—Austin 1957, writ ref’d n. r. e.). Point of Error No. V is overruled.

The last point complains that Appellant has not been furnished a full and complete statement of facts upon which to perfect his appeal. Basically, the argument is that the Court Reporter did not prepare Appellant’s objections to the Court’s Charge and include them in the statement of facts. We find no error. First of all, the statement of facts contains the Reporter’s certificate that it is a “full, true and correct transcription” of his notes. The statement of facts, as filed with this Court, has the signature of counsel for Appellant approving it. Next, the transcript contains “Objections to the Charge” which were filed with the signature of counsel for Appellant and verified by the trial judge. Appellant does not suggest that he made any objections to.the charge which have not been preserved in the trial Court. We find no reversible error under Rule 434, Tex.R. Civ.P., and Point of Error No. VI is overruled.

The judgment of the trial Court is affirmed.


author: SPURLOCK, Justice.

text:
    STEPHENS TRUCKING COMPANY, Appellant, v. V. KEMP, Jr., Appellee.
    No. 17917.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 29, 1977.

      Cantey, Hanger, Gooch, Munn & Collins and Tolbert L. Greenwood, Fort Worth, for appellant.
    Morrow & Tidwell and Jerry Tidwell, Weatherford, for appellee.
   OPINION

SPURLOCK, Justice.

This is a venue case. Plaintiff, V. Kemp, Jr., sued for damages allegedly sustained as a result of blasting operations conducted by defendant, Stephens Trucking Company, after defendant filed a plea of privilege to be sued in Young County, plaintiff filed a controverting affidavit wherein he sought to maintain venue in Parker County under the negligence exception; i. e., Subd. 9a of art. 1995.* After a non-jury hearing, the trial court overruled defendant’s plea of privilege.

We REVERSE and ORDER that the case be transferred to Young County.

By its two points of error, defendant contends that the trial court erred in overruling its plea of privilege to be sued in the county of,its residence, Young County.

In his first amended original petition, plaintiff contends that: “Defendant’s negligent use of a quantity of explosive greater than a person of ordinary prudence in the exercise of ordinary care would have used under the same or similar circumstances was the direct and proximate cause . . ” of his personal injuries sustained and damage to his property. Thus, from plaintiff’s pleadings, it can be clearly seen that he is attempting to predicate liability upon a specific act of negligence.

In order to maintain venue in this case in Parker County under Subd. 9a of art. 1995, plaintiff was required to establish by a preponderance of the evidence that (1) an act or omission of negligence occurred in Parker County, (2) that such act or omission was that of the defendant or its agent, servant or representative acting within the scope of his employment, and (3) that such negligence was a proximate cause of the injuries sustained. Socony Mobil Co., Inc. v. Southwestern Bell Tel. Co., 518 S.W.2d 257 (Tex.Civ.App.-Corpus Christi 1974, no writ).

The law is settled that liability for damages caused by the use of explosives is dependent upon the existence of negligence in setting off the explosion. Dellinger v. Skelly Oil Co., 236 S.W.2d 675, 677 (Tex.Civ.App.-Eastland 1951, writ ref’d n. r. e.). It is likewise settled in Texas that the doctrine of strict liability is inapplicable to blasting operations. Klostermann v. Houston Geophysical Company, 315 S.W.2d 664 (Tex.Civ.App.-San Antonio 1958, writ ref’d).

In Dellinger, supra, the court wrote:

“We do not judicially know the details of blasting operations whether in connection with seismograph work or otherwise. A blast may be of such proportions and consequences as to be of itself evidence of negligence. (Citing cases). We do not have such an explosion in this case. In order to prove negligence in such cases it is ordinarily necessary to show a standard of safety and a departure therefrom. (Citing cases).” Id. at 678.

We have carefully examined the entire record in this case, and there is no evidence that indicates that the quantity of explosive utilized on the occasion in question was excessive or unreasonable or not within the customary and recommended standards. In fact, there is no evidence as to what constitutes the customary and recommended standards. Additionally, there is no evidence which connects the alleged damages to his property or his personal injuries with the blasting operations, nor any evidence of the details of the blasting operations, nor any evidence which indicates that the blasting operations were conducted in a negligent manner. Negligence in this case is not presumed from the mere occurrence in question. Wells v. Texas Pac. Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660 (Tex.Comm’n.App.-1942, opinion adopted); Mustang Aviation v. Ridgway, 231 S.W.2d 677 (Tex.Civ.App.-Dallas 1950, writ ref’d).

In his brief, plaintiff contends that negligence was shown by the fact that the defendant’s employee in charge of the blasting operations did not know the effects of the explosives used. In examining the employee’s deposition that was admitted into evidence, we find that the three questions were: “Would it make any difference as to how-far-reaching the blast would be or anything as to the type of materials that you were blasting out? In other words, whether it was solid rock, bed rock or whether it was just dirt? How far the blast could be felt, the shock waves from it? The man answered, “I wouldn’t have any— don’t really know right now.” The three questions that were asked together are ambiguous, and the employee’s answer does not support plaintiff’s far-reaching contention that defendant’s employee did not know the effects of the explosives used so as to constitute negligence.

Even if plaintiff had shown that there was negligence, there is still no showing that such negligence was a proximate cause of the injuries sustained. It is well-known that it is not every act of negligence that is a proximate cause of an occurrence. Cannady v. Dallas Ry. & Terminal Co., 219 S.W.2d 816 (Tex.Civ.App.-Fort Worth 1949, no writ).

We sustain defendant’s two points of error and hold that the trial court erred in overruling defendant’s plea of privilege. We REVERSE the trial court and ORDER that the case be transferred to Young County, the county of the defendant’s residence.

       All statutory references are to Tex.Rev.Civ.Stat. Ann. art. 1995, Subd. 9a (1964).


author: M'cDONALD, Chief Justice.

text:
    Beatrice Elinor HEANER, Independent Executrix of the Estate of John E. Heaner, Deceased, et al., Appellants, v. HOUSTON SASH & DOOR COMPANY, INC., Appellee.
    No. 5795.
    Court of Civil Appeals of Texas, Waco.
    Dec. 29, 1977.
    Rehearing Denied Jan. 26, 1978.

      Carnegie H. Mims, Jr., Jefferson, Maness, Valdes & Mims, Houston, for appellants.
    Travis G. Wilson, Law Offices of Frank C. Herzog, Houston, for appellee.
   OPINION

M'cDONALD, Chief Justice.

This is a suit on an open account and guaranty agreement brought by plaintiff Houston Sash and Door against Bedford Corporation and Beatrice Heaner, Independent Executrix of the Estate of John E. Heaner, defendants, seeking to recover for services, goods, wares, and merchandise sold to Bedford during the period of January 14, 1974 thru April 26, 1974.

Prior to his death Heaner had executed a guaranty agreement, guaranteeing the payment of any moneys due Houston Sash by Bedford.

Defendants filed a sworn denial of the account, and a counterclaim for penalties provided for by Article 5069-1.06 VATS.

Trial was before the court, without a jury, which rendered judgment for $13,-575.73 jointly and severally against Bedford and Heaner (and $3,599.43 additional against Bedford).

Defendants appeal contending the trial court erred in rendering judgment for plaintiff because [plaintiff] charged or contracted for interest in excess of the rate permitted by Article 5069-1.03 VATS; consequently judgment should have been rendered in favor of defendants for forfeiture of the principal, twice the amount of interest charged, and reasonable attorneys’ fees, as provided by Article 5069-1.06 VATS.

Bedford Corporation, a builder of town houses ordered goods and services from Houston Sash on open account. Heaner (Chairman of the Board of Bedford) signed a guaranty. The goods and services were sold and delivered to Bedford between January 14, 1974 and April 26, 1974. Houston Sash commenced charging interest on the unpaid balance at the rate of 12% after 30 days of the delivery of the merchandise. Heaner signed an agreement guaranteeing payment of Bedford’s account.

There was no agreement plead or proved by plaintiff whereby Bedford would pay a rate of interest on its open account with Houston Sash in excess of 6%.

Article 5069-1.03 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 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[s’] 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 * * *

Windhorst v. Adcock Pipe and Supply, Tex.Sup.Ct., 547 S.W.2d 260 holds the language “contracts for, charges or receives interest” is in the disjunctive, and that only one such condition need occur to trigger penalties.

As heretofore noted, Houston Sash charged Bedford 12% interest on an open account, and charged such 12% interest commencing 30 days after delivery of merchandise. Article 5069-1.03 prescribes 6% interest in such situation from the first day of the following January. The merchandise was delivered January 14, thru April 26, 1974. No agreement for an interest rate above 6% was alleged or proved by Houston Sash.

Defendants’ contention is sustained.

The judgment is reversed and the cause remanded with instructions to receive any evidence tendered as to reasonable attorneys’ fees, and then render judgment for defendants as provided by Article 5069-1.06 VATS.

REVERSED and REMANDED.


author: JAMES, Justice.

text:
    Benny ORNELAS, Appellant, v. DODGEN EQUIPMENT CO., Appellee.
    No. 5821.
    Court of Civil Appeals of Texas, Waco.
    Jan. 5, 1978.
    Rehearing Denied Jan. 26, 1978.
    Grady L. Roberts, Jr., Pearsall, Juan A. Cavazos, San Antonio, for appellant.
    Fred R. Granberry, San Antonio, for ap-pellee.
   OPINION

JAMES, Justice.

This is a venue case. The record contains no statement of facts, and the facts recited hereunder are apparent from the transcript. Plaintiff-Appellee Dodgen Equipment Co. sued Defendant-Appellant Benny Ornelas in Bexar County, Texas, to recover money for work performed by Plaintiff Dodgen on Defendant’s tractor. Defendant Ornelas filed a plea of privilege to be sued in Frio County, Texas, the county of his residence. Plaintiff Dodgen thereupon timely filed a controverting plea, controverting Defendant’s plea of privilege under subdivision 5 of Article 1995, Vernon’s Annotated Texas Statutes.

However, Plaintiff did not comply with Rule 87, Texas Rules of Civil Procedure, in that Plaintiff did not cause the judge to note upon said controverting plea a time for hearing on the plea of privilege. Instead, Plaintiff simply mailed on or about October 14,1976, a copy of the controverting plea to the Defendant, without any such notation of setting by the judge. Thereafter, on November 16, 1976, Plaintiff’s attorney filed a motion requesting the court to set the case for trial on the non-jury docket for December 22, 1976. Immediately beneath said motion is a form of order for the judge’s signature setting the cause for trial on the non-jury docket for December 22, 1976; however, there is no signature of any judge thereupon. Then, directly under the unsigned order is a certificate by Plaintiff’s attorney that he mailed a true copy of said motion and order to Defendant’s lawyer.

Then the transcript shows a judgment of the trial court wherein it is recited in the first paragraph thereof:

“On this the 22nd day of December, 1976, being the time heretofore set for the hearing on the Plea of Privilege and subject thereto, a hearing on the merits, came the Plaintiff by and through their attorney of record, and the Defendant, although duly cited, did not appear, but wholly made default. The Court finds that the Defendant’s Plea of Privilege filed herein on or about October 5,1976, has no basis either in fact or in law, and should be overruled.” Then the judgment proceeds to overrule the plea of privilege, reciting that a trial on the merits was thereupon had, after which the court entered judgment for Plaintiff against Defendant for $437.18 (the net amount sued for) plus $300.00 attorney’s fees and costs.

Defendant in five points of error complains that the trial court erred in overruling the plea of privilege, in trying the case on the merits at the same time as the hearing on the plea of privilege, in failing to set a hearing on venue prior to the date set for trial on the merits, in trying the venue on the date set pursuant to Plaintiff’s motion to set for trial on the merits, and in awarding Plaintiff a default judgment. We overrule all of Plaintiff-Appellant’s points of error and affirm the trial court’s judgment.

• Rule 87, Vernon’s Tex.Rules Civ.Proc., provides that a plea of privilege shall not be heard until the defendant has received the formal notice of date for such hearing provided for in the Rule, “Unless the parties agree upon the date.”

The judgment recites that on December 22, 1976, “being the time heretofore set for the hearing on the Plea of Privilege and subject thereto, a hearing on the merits,” the defendant failed to appear; that the plea of privilege was heard and overruled; and that “Thereafter a trial on the merits was had.”

The record before us does not contain findings of fact outside the judgment, and it does not contain a statement of facts. The transcript supports the view expressed by Appellant that Appellant did not receive the formal notice of hearing on his plea of privilege prescribed in Rule 87, but the record does not show that Appellant did not agree on the December 22, 1976, setting or that he did not have actual notice of it.

Without a statement of facts we must presume Defendant-Appellant agreed to the setting on his venue plea, and subject thereto, a trial on the merits, as reflected in the judgment, or that he had actual notice thereof (albeit not the formal notice contemplated in Rule 87) and chose not to contest it. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82 (1955); Guthrie v. National Homes Corporation, 394 S.W.2d 494, 495 (Tex.Sup.1965); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).

Defendant-Appellant filed a motion for new trial raising the identical questions he presents to us. On this motion, he could have developed the facts concerning whether he agreed to the settings in question or was without notice. He chose not to do so, and the motion was overruled by operation of law without a hearing.

For the foregoing reasons, we overrule all of Defendant-Appellant’s points and contentions, and affirm the trial court’s judgment.

AFFIRMED.