author: NYE, Chief Justice.

text:
    MORTGAGE AND TRUST, INC., et al., Appellants, v. BONNER & COMPANY, INC., Appellee.
    No. 1269.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearing Denied Sept. 21, 1978.

      James F. Buchanan, Kleberg & Weil, Corpus Christi, for appellants.
    Lola L. Bonner, Bonner & Jackson, Rock-port, for appellee.
   OPINION

NYE, Chief Justice.

This is a mechanic’s and materialman’s lien case involving the priority of a mechanic’s and materialman’s lien asserted by Bonner & Co., a contractor, and the recorded deed of trust lienholder, Mortgage and Trust. Bonner brought suit against a number of defendants to establish and foreclose a constitutional and a statutory mechanic’s and materialman’s lien. Trial was to the court without the intervention of a jury. The trial court entered a joint and several judgment against Mortgage and Trust and Sundance (the present owner of the land), for $34,307.18, representing the outstanding amount found to be due Bonner under its construction contract. The trial court also entered judgment foreclosing Bonner’s mechanic’s and materialman’s lien on a portion of the land secured under the deed of trust. Mortgage and Trust and Sundance perfected their appeal to this Court.

A somewhat detailed, chronological recitation of the facts is necessary to gain proper perspective of the trial court’s action and the contentions of the parties on appeal.

On March 27, 1972, Raneo, the original owner of the property in question, acquired a 66.446 acre tract in Portland, Texas. On the same day, Raneo executed a deed of trust (Deed of Trust One) covering the property in favor of Mortgage and Trust to secure a $398,000.00 “land loan” evidenced by a promissory note executed on the same day. On April 14, 1972, Mortgage and Trust (a private corporation) assigned its entire interest in the original note and Deed of Trust (One) to M & T Mortgage Investors (a public corporation) for a recited consideration of $398,000.00.

Thereafter, Raneo began to develop the 66.446 acre tract by platting it as a subdivision known as Briar Bluff Units 1 and 2. In September of 1972, Bonner was contacted to obtain a bid on the installation of water and sewer systems in the subdivision. A contract between Bonner and Raneo resulted which was executed on December 4, 1972. This agreement was not filed of record.

To finance the development of this subdivision, Raneo obtained a second loan from Mortgage and Trust in the amount of $573,-000.00. This transaction was evidenced by a promissory note, secured by a deed of trust (Deed of Trust Two) covering all of Briar Bluff Units 1 and 2. Deed of Trust Two was filed for record with the county clerk on December 6, 1972, and recorded on December 8, 1972.

On December 8, 1972, Mortgage and Trust disbursed $145,000.00 of the “development loan” to M & T Investors to repay a portion of the original “land loan” secured by Deed of Trust One which had been previously assigned to M & T Investors. On December 12, 1972, M & T Investors released from Deed of Trust One Briar Bluff Unit 1 and Lots 35-43 of Briar Bluff Unit 2. The partial release was duly filed and recorded in the Deed of Trust Records of San Patricio County.

Approximately a year later, on January 14, 1974, M & T Investors reassigned the original “land loan” note (to the extent the loan had not been repaid) and Deed of Trust One (to the extent that lien had not been released) to Mortgage and Trust. The reassigned Deed of Trust One was duly filed of record and recorded on February 15, 1974. On the same day as the reassignment, January 14, 1974, Raneo executed Deed of Trust Three in favor of Mortgage and Trust to secure: 1) the renewal and extension of the remaining $233,000.00 indebtedness secured by Deed of Trust One; 2) the renewal and extension of the $573,-000.00 indebtedness secured by Deed of Trust Two; 3) the renewal and extension of an additional $120,000.00 of indebtedness not herein involved; and also 4) a new loan not herein involved. On March 14, 1974, plaintiff filed an affidavit claiming a mechanic’s lien for work done on Briar Bluff Unit 1 and Unit 2.

On November 5, 1974, Mortgage and Trust foreclosed its Deed of Trust Three. The Substitute Trustee sold and conveyed all property secured by Deed of Trust Three to Mortgage and Trust for a recited consideration of $829,113.00, all as set forth in the Substitute Trustee’s Deed. The property was subsequently sold by Mortgage and Trust to Sundance, the other appellant.

On September 23, 1975, Bonner filed suit against Raneo, the original developer, Mortgage and Trust, Sundance, and numerous other defendants who appeared to have interests in Briar Bluff, seeking: 1) to recover money due under its original contract with Raneo; 2) to establish and to foreclose its mechanic’s and materialman’s lien on the subject property; and to 3) obtain a declaration of the priorities of various lien claimants. Mortgage and Trust answered, alleging that its deed of trust liens were all superior to the mechanic’s and material-man’s lien asserted by Bonner and that the foreclosure and sale under Deed of Trust Three extinguished Bonner’s inferior lien. On December 12, 1975, Raneo filed a voluntary petition in bankruptcy and it was eventually discharged of its debts.

At the trial, Bonner attempted to establish the earliest possible inception of its mechanic’s and materialman’s lien by showing that its construction operations and job site materials were visible by an inspection of the premises prior to the inception of Mortgage and Trust’s deed of trust liens (one and two). To recapitulate: Deed of Trust One was filed for record on April 11, 1972, Deed of Trust Two was filed for record on December 6, 1972, and the partial release was executed on December 12, 1972. Deed of Trust Three which was executed on January 14, 1974, renewed and extended the outstanding indebtedness secured by Deeds of Trust One and Two. Bonner’s mechanic’s and materialman’s lien affidavit was filed for record on March 14, 1972. The trial court found that the presence of materials and the construction work was visible and apparent, from inspection of the premises on and after December 13, 1972. The trial court concluded that Bonner had perfected a valid mechanic’s and material-man’s lien by the filing of its affidavit on March 14, 1974, relating back to December 13, 1972.

The trial court finally held that Bonner had a superior lien as to that portion of the land M & T Investors had released under Deed of Trust One. The trial court found in part and concluded that: 1) M & T Investors and Mortgage and Trust were alto ego corporations; 2) M & T Investors’ partial release pertaining to Deed of Trust One had the effect of releasing the same land (Briar Bluff Unit 1 and Lots 35-43, Block 1, Briar Bluff Unit 2) secured by Deeds of Trust Two and Three; 3) Bonner’s lien was superior to other liens on such released land. Consequently, the trial court held Bonner was entitled to have foreclosure of its mechanic’s and materialman’s lien as to Briar Bluff Unit 1 and Lots 35-43, Block 1, Briar Bluff Unit 2, because Bonner’s superior lien was not extinguished by the foreclosure and sale of the property.

The trial court stated in its conclusions of law that defendant Mortgage and Trust held the proceeds of the foreclosure sale ($829,113.00) in trust for the benefit of Bonner to the extent of its lien ($34,307.18). The district court’s findings of fact and conclusions of law recitations also suggested that the difference in the sales price to Sundance of $1,170,000.00 and the foreclosure proceeds of $829,113.00 were also held in trust for the benefit of Bonner. Judgment was entered against Mortgage and Trust and Sundance jointly and severally, for $34,307.18 and foreclosure of plaintiff’s mechanic’s lien on Briar Bluff Unit 1 and Lots 35-43, Block 1, Briar Bluff Unit 2 was so ordered.

Defendants Mortgage and Trust and Sun-dance bring forward nine points of error which can be grouped into three general categories. The first six points of error attack what we believe to be the crux of the trial court’s judgment: the establishment of the priority of Bonner’s mechanic’s and materialman’s lien over Deeds of Trust Two and Three, by finding that Mortgage and Trust and M & T Investors were alter egos. Mortgage and Trust and Sundance’s second contention (point of error seven) is that the deed of trust liens of Mortgage and Trust (one, two and three) were superior to the mechanic’s lien claim of Bonner and the foreclosure of such superior lien extinguished the inferior mechanic’s lien claim as a matter of law. Appellants also contend that there is no evidence (and in the alternative insufficient evidence) to support the trial court’s findings that Mortgage and Trust and Sundance held the proceeds of the sale of the property in trust for the benefit of Bonner.

Appellants first contend that the trial court’s findings of fact pertinent to the alter ego theory are not supported by pleadings or evidence. A no evidence point of error is a question of law, and in considering the question, it is the duty of this Court to view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of the judgment and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.Sup.1972).

As a general rule, two or more corporations are separate and distinct legal entities, and the separate identity of each will not be disregarded in order to impose liability on one corporation for the acts of another corporation merely because of: a) overlapping stock ownership; b) a duplication of some or all of the directors or officers; or c) an exercise of the control that stock ownership gives to stockholders. Gentry v. Credit Plan Corporation of Houston, 528 S.W.2d 571, 573 (Tex.Sup.1975). In some circumstances, however, the one corporation may be regarded as the “alter ego” of another where management and operations are assimilated to the extent that the subsidiary is simply a name or a conduit through which the parent conducts its business. Gentry v. Credit Plan Corporation of Houston, supra. The corporate entity may thus be disregarded where it is used as a cloak or cover for fraud or illegality of operations. See 18 Am.Jur.2d § 15, pp. 561-562. Gentry v. Credit Plan Corporation of Houston, supra at 575. Accordingly, the “alter ego” theory, or other similar theories, will not be utilized to disregard the corporate entity unless: 1) it is made to appear that there is such a unity that the separateness of the corporation has ceased to exist; and 2) the facts are such that an adherence to the fiction of the separate existence of the particular corporation would, under the particular circumstances, sanction fraud or promote injustice. First National Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100, 103 (1939). Accord, Gentry v. Credit Plan Corporation of Houston, supra at 573.

The trial court’s findings of fact under attack, relating to the “alter ego” theory, are, in essence, as follows: 1) at the time Bonner installed the sewer and water lines and at the time of trial, the addresses of defendant Mortgage and Trust and M & T Investors were the same; 2) the corporate officers of both defendants were usually one and the same; 3) the officers of Raneo were unaware of M & T Investors and thought that they were only doing business with Mortgage and Trust; 4) Mortgage and Trust advanced funds to M & T Investors although the latter was unable to disburse such funds without specific approval of the officers and personnel of Mortgage and Trust; and 5) Mortgage and Trust operated as the alter ego of M & T Investors and the act of one was the act of the other. This latter “finding of fact” is actually a “conclusion of law” and is not particularly helpful or significant without reference to the underlying facts which justify this conclusion. See Bell Oil & Gas Co. v. Allied Chemical Corp., 431 S.W.2d 336, 339 nn. 2, 3 (Tex.Sup.1968). Our inquiry, therefore, will be: 1) whether the evidence (under the appropriate standards of review herein-above stated) will support findings 1-4; and 2) if so, whether these findings are sufficient to support the conclusion that Mortgage and Trust and M & T Investors are alter ego corporations.

There is very little evidence in the record concerning the overall business relationship between Mortgage and Trust and M & T Investors. There is no evidence in the record that either corporation is a wholly owned subsidiary of the other corporation. Mortgage and Trust is a closely held private corporation, chartered in 1946, making permanent loans on single family dwellings to be built in newly developed residential areas, its principal line of business. It also made preliminary land and development loans to real estate developers. Although it is not entirely clear from the record, it appears that Mortgage and Trust discounts, or otherwise assigns, many of these land and development loans to other corporations, including M & T Investors. Seventy per cent of the outstanding shares of stock of Mortgage and Trust is owned by a Mr. John S. Dunn. The remaining thirty per cent of the stock is owned by the officers and employees of Mortgage and Trust. On the other hand, M & T Investors is a publicly held corporation chartered in 1970 with approximately 3,500 shareholders. There is evidence in the record suggesting that a course of business dealings was had between the two corporations. M & T Investors, for example, has the contractual right of first refusal to purchase loans generated by Mortgage and Trust. Additionally, a third corporation M & T Management Company, a wholly owned subsidiary of Mortgage and Trust, acted as the “investment advisor” of M & T Investors pursuant to a contract between M & T Investors and M & T Management Company. The record shows that all three of these corporations, as well as several other corporations, have maintained the same business address, and several of the officers of Mortgage and Trust were also officers of M & T Investors.

Most of the specific evidence relating to the relationship between Mortgage and Trust and M & T Investors was introduced for the purpose of explaining the transaction whereby Mortgage and Trust assigned the original note secured by Deed of Trust One to M & T Investors, M & T Investors’ partial release under Deed of Trust One, and the subsequent reassignment to Mortgage and Trust. Findings of fact 3 and 4 above specifically relate to the assignment and reassignment transactions between Mortgage and Trust and M & T Investors.

The record shows that at the time Mortgage and Trust assigned the original “land loan” and Deed of Trust One to M & T Investors, M & T Investors paid the recited cash consideration by issuing a check to Mortgage and Trust as payee. The original assignment documents were all duly recorded. There is no evidence in the record to suggest that either corporation attempted to conceal the various transactions from Raneo. Raneo, after the original assignment, was indebted to M & T Investors for the $398,000.00 “land loan.”

Bonner asserts that the unity between Mortgage and Trust and M & T Investors is evidenced by the Mortgage and Trust’s continued relations with Raneo in completing the next phase of its development of the Briar Bluff Subdivision after it “purported to convey [its] entire interest in the land to M & T Investors, a ‘separate and freestanding entity.’ ” Specifically, Bonner argues that Mr. Hoover, vice president of Mortgage and Trust, directed Raneo in the fall of 1972 to start taking bids from contractors on the proposed subdivision at a time, after the assignment, when Mortgage and Trust had no interest in the project. Bonner, however, overlooks the undisputed evidence that, at this same time, Raneo was seeking the second “development loan” from Mortgage and Trust. The bids Mr. Hoover suggested that Raneo should obtain were to construct the improvements Mortgage and .Trust proposed to finance under the “development loan,” (the second deed of trust).

The record indicates that $145,000.00 of the $398,000.00 “development loan” was disbursed by Mortgage and Trust to M & T Investors to repay, in part, the assigned original “land loan” Raneo then owed to M & T Investors, and to obtain a partial release under Deed of Trust One of the land to be developed under the “development loan” secured by Deed of Trust Two. On December 8, 1972, the second loan was finalized between Raneo and Mortgage and Trust and Mr. Hoover called the Houston office of Mortgage and Trust for the purpose of authorizing Mortgage and Trust to pay $145,000.00 of the second loan to M & T Investors. After Mortgage and Trust authorized the initial disbursement to M & T Investors, there is no evidence that Mortgage and Trust thereafter controlled M & T Investors’ disposition of such funds. There is ample evidence in the record, however, that Mortgage and Trust supervised the disbursement of the proceeds of the “development loan” for payments made by or on behalf of Raneo. There is nothing in the record to suggest that this was anything more than sound business practice.

We have carefully examined the entire record and find that the only evidence that could possibly suggest an “alter ego” theory is that there were overlapping officers and directors, and that the two corporations officed in the same building. This evidence does not invoke the “alter ego” theory. This evidence will not permit us to disregard the corporate entities, particularly where, as here, resulting fraud or injustice has not been raised by the pleadings, by any evidence, or by the trial court’s findings. Gentry v. Credit Plan Corporation of Houston, supra; Bell Oil & Gas Co. v. Allied Chemical Co., supra; First Nat. Bank in Canyon v. Gamble, supra. Bonner had no dealings or relationship with either Mortgage and Trust or M & T Investors. There was no findings by the trial court nor any evidence of fraud. The partial release of the deed of trust lien did not extinguish the Deed of Trust Two lien nor did the release or the language contained in the release purport to do so. Even if Mortgage and Trust or M & T Investors were alter egos, the partial release did not release the deed of trust lien under Deed of Trust Two which was prior to time to the earliest transaction of Bonner on the job site. We hold that Bonner cannot be heard to attack the corporate existence of these corporations under these facts. Appellants’ points of error one through six are sustained.

We turn next to consider appellee Bonner’s “reply point No. 3” which states, “The district court did not err in finding and concluding that plaintiff’s mechanic’s and constitutional liens were superior to defendant Mortgage and Trust, Inc.’s Deed of Trust liens.” Under this reply point, Bonner states, in essence, that if this Court should sustain appellant’s points of error one through four, then “[this court] must determine the date for commencement of work and delivery of material,” in order to determine whether the trial court properly found that construction was visible on December 13,1972 when it could have been an earlier date. Appellants answer this reply point by contending that Bonner has failed to preserve, by a proper cross-point, its complaint concerning the trial court’s finding. We agree that if this is a “cross-point”, it does not meet the minimum briefing requirements.

Rule 420, Texas Rules of Civil Procedure, which pertains to the requirements of “appellee’s brief” provides that an appellee who desires to complain of any ruling or action of the trial court should state his complaints in substantially the form required of appellants under Rule 418. Bonner failed to bring forward a cross-point complaining of the trial court’s finding, but rather suggests that this Court should make an independent determination of the date upon which delivered materials or actual construction was visible at the construction site. We have the power to pass upon the weight of the evidence supporting a finding of fact when our jurisdiction in this respect is properly invoked. However, we cannot substitute our findings with respect to the evidence for the findings of the trial court. Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227 (1947). This, in effect, is what Bonner has requested us to do. Even if we were to consider the argument contained in Bonner’s reply point, as we understand it, there is little or no evidence in the record to support an earlier date (than December 13, 1972). Bonner, apparently does not attack specifically the trial court’s finding by legally or factually insufficient evidence points. If we assume that this point properly presented both legal and factual insufficiency attacks on the trial court’s finding, it would be overruled anyway. There is ample evidence to support the trial court’s finding and such finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We, therefore, hold that, under the facts of this case, the alter ego theory is not available to Bonner to establish the priority of its mechanic’s and materialman’s lien. There is ample evidence in the record to support the trial court’s finding that Bonner first commenced visible construction on December 13, 1972. Pursuant to Article 5459 § 2(a), V.A.T.S. Ann. (1962), the inception of Bonner’s lien under the relation back doctrine is December 13,1972. Thus, Bonner’s lien postdates the inception of the liens created under both Deed of Trust One and Deed of Trust Two. Deed of Trust Three was a renewal and extension of the outstanding indebtedness under both Deed of Trust One and Deed of Trust Two. Bonner would not be entitled to the proceeds of the foreclosure sale unless the funds generated by the sale were in excess of the expense of sale and Ranco’s indebtedness to Mortgage and Trust. There was no evidence here of any sums in excess of the indebtedness to Mortgage and Trust generated at the foreclosure sale.

A mechanic’s and materialman’s lien upon improvements is superior to a prior recorded deed of trust only where the improvements made can be removed without material injury to the land and to the preexisting improvements, or to the improvements removed. First National Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262 (Tex.Sup.1975). This exception is not applicable in the case before us.

This brings us to point of error seven wherein the appellants complain that the trial court erred in granting a judgment of foreclosure in favor of Bonner when Mortgage and Trust’s superior lien extinguished Bonner’s lien as a matter of law.

Under the undisputed facts of this case, Mortgage and Trust held a deed of trust lien to the unreleased portion of Briar Bluff Unit 2, (Deeds of Trust One and Two), which the trial court properly held was superior to Bonner’s lien claim. Mortgage and Trust also held a deed of trust lien to Briar Bluff Unit 1 and the released portion of Unit 2 under Deed of Trust Two. The trial court erroneously held that this second deed of trust lien was inferior to Bonner’s lien claim under the alter ego theory. The liens under Deeds of Trust One and Two attached and were prior to Bonner’s lien even to the date it related back and were, therefore, superior. When Deed of Trust Three was executed it specifically renewed and extended the unreleased lien created in Deed of Trust One and the entire lien created in Deed of Trust Two as security for payment of $233,000.00 and $573,000.00 representing the outstanding indebtedness secured by Deeds of Trust One and Two, respectively. In addition, it also secured other liens (not relevant here) that were prior in time to Bonner’s lien. When Mortgage and Trust’s superior lien (Deed of Trust Three) was foreclosed, Bonner’s inferior lien was extinguished. The purchaser at the trustee’s sale acquired title to the property free of the claims of Bonner. Diversified Mortgage Investors v. Blaylock, Vol. 21 Sup.Ct..J. 521, 529 (1978). Naational Western Life Ins. Co. v. Acreman, 425 S.W.2d 815, 817-18 (Tex.Sup.1968). The inferior lien, under such circumstances, was extinguished. Pierce v. Mays, 277 S.W.2d 155 (Tex.Civ.App.—Amarillo 1954), aff’d, 154 Tex. 487, 281 S.W.2d 79 (1955). The trial court erred, therefore, in granting Bonner foreclosure of its lien. Appellants’ point of error number seven is also sustained.

The trial court granted a money judgment in favor of Bonner against Mortgage and Trust and Sundance in the amount of $34,307.18 for labor and materials furnished to the construction site. In support of this money judgment, the trial court held that Mortgage and Trust and Sundance held the proceeds of the sale of the property in trust for the benefit of Bonner. In points of error eight and nine, appellants attack the trial court’s findings of no evidence and insufficient evidence grounds.

On November 5, 1974, Mortgage and Trust foreclosed its lien of January 14,1974, for the sum of $829,113.00, which included an additional indebtedness of Raneo for a subdivision known as Candlelite Park Subdivision in Sinton, San Patricio County, Texas. By deed dated June 23, 1975, defendant Mortgage and Trust sold Briar Bluff, Units One and Two, to defendant Sundance for the consideration of $1,170,-000.00, a sum in excess of the debt due from Raneo and a sum in excess of the amount bid at the foreclosure sale. There is nothing in the record to indicate that this sale to Sundance was irregular. Under the terms of the deed of trust dated January 14, 1974, the Trustee, at foreclosure, was directed to first pay the expenses of sale, then pay the full amount of principal and interest due by the Grantor (Raneo), and pay the remaining balance, if any, to the Grantors (Raneo), their heirs and assigns. There is absolutely no evidence that the amount of indebtedness of Raneo plus the expense of trustee’s sale (finding of fact number 32) was less than the foreclosure sale price. The only money that Bonner could possibly lay claim to would be the excess from the foreclosure sale.

The trial court concluded that the difference between the foreclosure sale and the sale to Sundance created a surplus and that Bonner was entitled to $34,307.18 of such surplus. The only basis in law for such a conclusion would be a finding of fraud existing between Mortgage and Trust and Sundance: There was no irregularity pled or proved concerning the foreclosure sale or in the conveyance to Sundance. There was no evidence of either nor any findings of such. Bonner argues that this subsequent sale by Mortgage and Trust to Sundance must be considered by this Court as the “true consideration” received at the foreclosure sale. This would be pure speculation, since there was no evidence of such. In support of this contention, Bonner relies upon Habitat, Inc. v. McKanna, 523 S.W.2d 787 (Tex.Civ.App.—Eastland 1974, no writ), and Justice Mort. Inv. v. C. B. Thompson Const. Co., 533 S.W.2d 939 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). We have examined each of these authorities and find they do not support the position Bonner asserts.

Appellants’ points of error eight as well as nine are, therefore, sustained. The judgment of the trial court awarding a money judgment in favor of plaintiff and authorizing the foreclosure of plaintiff’s mechanic’s and materialman’s liens was error. The trial court’s judgment is hereby reversed and judgment is here rendered that plaintiff take nothing.

REVERSED AND RENDERED.

      . The trial court found:
      “29. On January 14, 1974, M & T Mortgage Investors transferred its lien dated March 27, 1972, in the amount of $398,000 to Mortgage and Trust, Inc., LESS the property which had theretofore been released and consisting of All of Unit One and a large portion of Unit Two.
      30. On November 5, 1974, Defendant Mortgage & Trust, Inc., foreclosed its lien of January 14, 1974, for the sum of $829,113.00, which included an indebtedness of Raneo for a subdivision known as Candlelite Park Subdivision in Sinton, San Patricio County, Texas.
      31.By deed dated June 23, 1975, Defendant Mortgage and Trust, Inc., sold Briar Bluff, Units One and Two to Defendant Sun-dance for the consideration of $1,170,000.00, a sum in excess of the debt due from Raneo and a sum in excess of the amount bid at the foreclosure sale.
      32. Under the terms of the Deed of Trust dated January 14, 1974, the Trustee, at foreclosure, was directed to first pay the expenses of sale, then pay the full amount of principal and interest due by the Grantor, and pay the remaining balance, if any, to the Grantors (Raneo), their heirs and assigns.
      33. The foreclosure sale of November 5, 1974, generated a sum in excess of the sale expenses and the amount due by Raneo.”


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    Angel CEVALLOS and wife Janie Cevallos, Appellants, v. Chilton MAVERICK, Sam Barron and wife Helen Barron, Aubrey Flowers and Pepos Dounson, Appellees.
    No. 16019.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 6, 1978.

      Victor A. Speert, San Antonio, for appellants.
    Pepos S. Dounson, Aubrey Jay Flowers, Chilton Maverick, San Antonio, for appel-lees.,
   OPINION

KLINGEMAN, Justice.

This is a suit by Angel Cevallos and wife, Janie Cevallos, to set aside a foreclosure sale and for damages concerning real property located in San Antonio, Bexar County, Texas. Appellees filed a plea in abatement asserting appellants had no justiciable interest in the property. After a hearing was held, judgment was entered by the trial court granting the plea in abatement and dismissing the cause.

Appellants ask this court for a reversal and a remand on the grounds that the trial court abused its discretion in granting such plea in abatement and motion to dismiss and as grounds therefor assert four points of error: (1) the trial court erred and abused its discretion in sustaining the plea in abatement and order of dismissal because there was a question of property rights of the appellants in the property and the trial court should have considered and accepted testimony to establish such property rights; (2) the trial court erred in not permitting testimony relative to conspiracy and fraud; (3) the trial court erred, in its discretion, in permitting evidence offered on a former trial of the subject matter of the litigation; and (4) the trial court erred in disposing of the plea in abatement as a matter of law when in fact there were questions of both law and fact which rightfully should have been a question for a jury. This case is before us without: (1) a statement of facts; (2) findings of fact or conclusions of law or any request therefor; and (3) bill of exceptions.

The judgment before us recites: (a) all parties appeared in person and through their attorneys and announced ready; (b) the court heard and considered the pleadings, evidence and arguments of counsel; (c) appellants have no justiciable interest; and (d) appellees’ pleas in abatement should be granted and this cause dismissed.

We affirm the judgment of the trial court.

Appellants are in a difficult position before this court. They are appealing this case by points of error asserting (a) abuse of discretion by the trial court; (b) error of the court in admitting certain evidence and in refusing to admit certain evidence without any: (1) statement of facts, (2) bill of exceptions, or (3) findings of fact or conclusions of law or any request therefor. On appeal, appellants have the burden of showing that the judgment complained of was erroneous. Appellants have failed to discharge this burden. Pruitt v. Morriss, 517 S.W.2d 654 (Tex.Civ.App.—Tyler 1974, no writ); Chavers v. Lucenay, 329 S.W.2d 503 (Tex.Civ.App.—Waco 1959, no writ); Bishop v. Allied Finance Company, 483 S.W.2d 46 (Tex.Civ.App.—Dallas 1972, no writ).

Under the circumstances, we cannot presume that the trial court erred in its rulings and judgment. On the contrary, we must presume that the record was sufficient to support such findings and judgment. Houston Fire and Casualty Company v. Walker, 152 Tex. 503, 260 S.W.2d 600 (1953); Zemke v. Stevens, 494 S.W.2d 227 (Tex.Civ.App.—Eastland 1973, no writ); Podehl v. Lubianski, 472 S.W.2d 595 (Tex.Civ.App.—San Antonio 1971, no writ); Helfer v. Texas Employers’ Insurance Association, 467 S.W.2d 687 (Tex.Civ.App.—San Antonio 1971, no writ).

The judgment of the trial court is affirmed.

      . The transcript also contains: (a) notice of trustee’s sale; (b) order of Bankruptcy Judge of the United States District Court, Western District of Texas, in Bankruptcy, overruling a motion to stay trustee’s sale and finding that Angel Cevallos and Janie Cevallos have not and did not have any interest in the property involved at the time of filing for bankruptcy and protection of such court and that the court had no jurisdiction over the property or any proposed foreclosure on said property. This order is approved by the attorneys for appellants.


author: MURRAY, Justice.

text:
    AETNA LIFE INSURANCE CO., Appellant, v. Janie P. BOCANEGRA, Appellee.
    No. 15933.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 13, 1978.
    Rehearing Denied Oct. 25, 1978.
    Joe Meador, San Antonio, for appellant.
    Les Mendelsohn, San Antonio, for appel-lee.
   OPINION

MURRAY, Justice.

The Plaintiff, Janie P. Bocanegra, filed this suit against the defendant, Aetna Life Insurance Company, seeking to recover on a group health insurance policy that provided coverage for the plaintiff for medical expenses incurred in a non-occupational injury or disease while she was an employee of the Clegg Company. Trial was held before a jury, and it found that the medical services received by plaintiff resulted from a nonoccupational disease and that the reasonable medical expenses amounted to $4,500.00 and for attorney’s fees.

Prior to filing this suit, plaintiff filed a claim with the Industrial Accident Board for the same injury. We quote from the statement of facts in plaintiff’s brief:

At all times material to this incident, she was employed at the Clegg Company, where she had worked since October of 1965. The employees of the Clegg Company, at all times material, were covered by a group health insurance policy issued by Aetna Insurance Company. During her hospitalization, in mid-August, 1975, Plaintiff filed a Notice of Injury or Occupational Disease and Claim for Compensation with the Texas Industrial Accident Board. She did this in the belief that the acute pain she suffered on or about June 3, 1975 was the result of a work related injury. This belief was based on the information she received from her doctor and friends at the time of her admission to the hospital, and during her stay there.
Fireman’s Fund Insurance Company was the Clegg Company’s worker’s compensation insurer. Although it disputed liability on this claim based on the belief that it was not a job related injury, on October 27,1975, it agreed to enter into a Compromise Settlement Agreement, paying the Plaintiff Twelve Thousand & No/100 ($12,000.00) Dollars for lost wages and future impaired earning capability. This settlement specifically provided no compensation for a past or future medical or hospital expenses, but was solely for lost wages and future impaired earning capacity. Fireman’s Fund maintained that ‘Liability is Disputed’.

Defendant’s contention, as stated in its brief, is as follows:

Appellant says that by virtue of the Appellee’s filing such claim with the Industrial Accident Board of the State of Texas and securing workmen’s compensation benefits from the Fireman’s Fund, which was the workmen’s compensation carrier for The Clegg Company, she is estopped to make a claim against Appellant for medical expenses under the group policy which would only cover expenses if the claim were to arise out of a non-occupational injury and/or disease.
We sustain this contention.

Plaintiff took the position in her workmen’s compensation claim that her injury was in the course of her employment with the Clegg Company and originated in her work with the company. She now takes the opposite view that her medical expenses were the result of a “non-occupational” disease and injury. The remedies in the two causes of action are repugnant and inconsistent. Since the remedies were inconsistent and since plaintiff received substantial benefits from her claim against the workmen’s compensation insurer, she is precluded from bringing suit against defendant in this cause of action. Lomas & Nettleton Company v. Huckabee, 558 S.W.2d 863 (Tex.1977); Moore v. Means, 549 S.W.2d 417 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.). In Huckabee, supra, the Supreme Court stated the rule as follows:

If one having a right to pursue one of several inconsistent remedies makes his election, institutes suit, and prosecutes it to final judgment, or receives anything of value under the claim thus asserted, or if the other party has been affected adversely, such election constitutes an es-toppel thereafter to pursue another and inconsistent remedy.

In Huckabee, supra, the owners of a residence destroyed by fire sued an insurance company on a fire insurance policy and also sued a mortgage management firm for negligence in failing to provide insurance. After the claimants had settled with the insurance company for eighty per cent of their claim, the mortgage management company moved for a summary judgment, which was granted by the trial court. The Supreme Court affirmed the summary judgment on the ground that the remedies in the causes of action against the two defendants were inconsistent and that since the claimants had received benefits from their claim against the insurance company, their suit against the other defendant was precluded.

While the principle requiring consistency is customarily considered a form of equitable estoppel, although lacking the elements of reliance and injury, it is more a matter in the nature of a positive rule of procedure based on manifest justice.

The plaintiff should not be permitted to assert formally the existence of one state of facts in a claim against one party and accept benefits in satisfaction of that claim, and then maintain an action against another party on the ground that the facts first asserted didn’t exist.

In view of our holding on the above point, the remaining error of which complaint is made becomes immaterial.

The judgment of the trial court is reversed and judgment here rendered that plaintiff take nothing.

      . Appellant did not here, as did appellant in Aetna Life Ins. Co. v. Wells, 557 S.W.2d 144 (Tex.Civ.App.—San Antonio 1977, writ ref’d, n. r. e.) limit its defense to pleas of judicial admissions and judicial estoppel. See opinion of the Supreme Court explaining its refusal of application for writ of error in that case. Aetna Life Ins. Co. v. Wells, 566 S.W.2d 900 (Tex.1978).


text:
    DUVAL COUNTY RANCH COMPANY, Appellant, v. CLARK PIPE & SUPPLY, INC., Appellee.
    No. 16015.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 13, 1978.
    Raul Garcia, Alice, for appellant.
    John C. Mullen, Alice, for appellee.
   OPINION

MURRAY, Justice.

This is an action filed in the 229th District Court of Duval County, Texas, by Clark Pipe & Supply, Inc., plaintiff, against Duval County Ranch Company, defendant, on an account as a result of a sale of pipe by plaintiff to defendant. The plaintiff’s petition and the account statement attached thereto was duly verified in accordance with the requirements of Texas Rules of Civil Procedure, Rule 185. The defendant’s answer was in the form of a general denial and was not in compliance with Rule 185 or Rule 93(k).

At the trial of this case before the court without a jury, the plaintiff introduced into evidence the plaintiff’s first amended original petition, the request for admissions, and the defendant’s reply to said request for admissions, and plaintiff moved for a judgment on the pleadings. The court overruled this motion and thereafter plaintiff introduced evidence before the court. After both sides had rested, the court entered judgment for plaintiff in the sum prayed for and attorney’s fees. The defendant has duly perfected an appeal from this judgment to this Court.

Defendant contends that the judgment of the trial court should be reversed because of no evidence points and the introduction of certain exhibits in evidence over his objection. These points are without merit and we affirm the judgment of the trial court.

Rule 185 states that a proper pleading based on a sworn account shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true. Rule 93 provides in part that the following matter shall be verified by affidavit:

(k) That an account which is the foundation of the plaintiff’s action, and supported by the affidavit, is not just; and, in such case, the answer shall state that each and every item is not just or true, or that some specified item or items are not just and true.

Defendant’s answer was as follows:

I.
That the allegations contained in Plaintiff’s Original Petition are generally untrue and your Defendant demands his legal prerogative of requiring Plaintiff to prove each and every allegation, if they can.
II.
Defendant further states that all offsets and counterclaims have not been allowed.
III.
Defendant further states that the accounts sued on in this case are not due and owing by this Defendant.

The jurat on defendant’s answer is signed by the attorney for the defendant and he states that the facts are true and correct “to the best of his knowledge.” The defendant will not be permitted to deny plaintiff’s claim unless he files a sworn answer in strict compliance with Rules 93(k) and 185. Goodman v. Art Reproductions Corp., 502 S.W.2d 592 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.); Wilson v. Browning Arms Co., 501 S.W.2d 705 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d). In Wilson, the court stated at page 706:

Tex.R.Civ.P. 185 provides that in a suit on a sworn account plaintiff’s petition, properly verified, ‘shall be taken as prima facie evidence thereof.’ Such rule also provides that unless the defendant files a written denial, denying the plaintiff’s allegations under oath, in the form provided, the defendant shall not be permitted to deny the plaintiff’s claim.

The judgment of the trial court is affirmed.

      . All reference to Rules hereafter are to the Texas Rules of Civil Procedure.


author: CADENA, Chief Justice.

text:
    Lee Dale SMITH, Appellant, v. Charles B. DREYER, Appellee.
    No. 16128.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 13, 1978.

      Shelby W. Hollín, San Antonio, for appellant.
    F. J. Stenberg, San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

Appellant’s motion for extension of time to file the statement of facts is denied and the appeal is dismissed for want of jurisdiction due to appellant’s failure to timely file an appeal bond or a cash deposit in lieu of such bond.

Appellant’s motion for new trial was overruled on May 31, 1978. Appellant, therefore, was required to file an appeal bond or to make a cash deposit in lieu of such bond no later than June 30, 1978. Tex.R.Civ.P. 356. Appellant did not make the cash deposit to secure payment of costs on appeal until July 17, 1978.

On June 5, 1978, appellant complied with Rule 354(a) by asking the clerk to determine the amount which would be sufficient to cover the estimated costs in the trial court and the cost of the statement of facts and transcript. Such request was well within the 30-day period prescribed by Rule 356. On July 17, 1978, the clerk informed appellant that a deposit of $120.00 would be required, and on that date a deposit of $120.00 was made by appellant in lieu of filing an appeal bond.

The requirement that security for costs on appeal be given within 30 days is mandatory and jurisdictional, and the time prescribed by the rule cannot be extended by any court for any reason. Since no court has the power to excuse delay, the reasons for the delay are irrelevant. Glidden Company v. Aetna Casualty and Surety Co., 155 Tex. 591, 291 S.W.2d 315, 318 (1956); Gaskin v. Perritt, 472 S.W.2d 211 (Tex.Civ.App.—Texarkana 1971, no writ); Bean v. City of Arlington, 464 S.W.2d 208 (Tex.Civ.App.—Fort Worth 1971, no writ). The promulgation of Rule 21c, adopted in 1975 and effective January 1, 1976, does not affect our decision. Rule 21c reflects a more liberal attitude toward motions for extension of time, by permitting extensions of time within which to file motions for rehearing and applications for writ of error. However, this rule does not authorize extension of time for giving the required security on appeal.

The appeal is dismissed.


author: SPURLOCK, Justice.

text:
    Hardy MITCHELL, Appellant, v. CHAPARRAL CHRYSLER-PLYMOUTH SALES, INC., Appellee.
    No. 18051.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 14, 1978.
    Rehearing Denied Oct. 26, 1978.

      John Wright & Associates and Henry J. Voegtle III, Grand Prairie, for appellant.
    Kelly & Walker and Jearl D. Walker, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

Hardy Mitchell sued Chaparral Chrysler-Plymouth Sales, Inc., for damages from personal injuries sustained when his automobile fell on him. Mitchell alleged that the defective condition of the bumper jack included in the automobile sold to him caused the accident. Mitchell appealed the take-nothing judgment based on the jury verdict.

We affirm.

The case was submitted to the jury on special issues. The jury found that Mitchell sustained no damages from his injuries. In his brief, Mitchell states that no damages were found but fails to assign error to the finding. In his first amended motion for new trial Mitchell does allege that the jury’s verdict is contrary to the weight of the evidence.

Mitchell alleges that the trial court erred in answering three questions submitted to the court by the jury during deliberation, and in making a comment to the jury concerning its questions. He claims the answers and comment were improper comments on the weight of the evidence. He also alleges the court erred in failing to include his requested instructions on warning in its jury charge.

We conclude that since Mitchell failed to properly raise a point of error on the jury’s finding of no damages, error, if any, in the court’s answers and comment, and its failure to include the requested instructions is immaterial and harmless.

Lewis v. Isthmian Lines, Inc., 425 S.W.2d 893 (Tex.Civ.App.—Houston (14th Dist.) 1968, no writ), holds that where there is no point of error on the jury’s finding of no damages, any error in the verdict on liability issues is harmless. Here, Mitchell has not properly raised any point of error on the damage issue. The only assignment of error that can possibly be construed to relate to damages is in Mitchell’s first amended motion for new trial. There he alleged only that the verdict was contrary to the weight of the evidence. Even if this sufficiently refers to damages, it is too general to properly raise a point of error.

Assignments of error couched in general terms will not be considered. Murphy v. Maroney, 456 S.W.2d 787 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.), Tex.R.Civ.P. 321, 322. Each ground of error in a motion for new trial must raise the point so it can be clearly understood by the court. The court should not have to speculate about what is assigned as error. Therefore, Mitchell has not properly raised any point of error on damages.

After analyzing appellant’s points of error, we conclude that all points relate to liability. The questions answered by the court and the comment made, to which appellant assigns error, concerned the testimony of a witness who tested the bumper jack for defects. The jury asked whether the witness had described the condition of the jack using certain words. Mitchell also claims the court erred in failing to include his requested instructions. The instructions requested were on warning. Clearly, the condition of the bumper jack, what warning appellant was entitled to, and any errors thereon relate to liability.

Where there is an undisputed finding of no damages, error, if any, on a liability issue is harmless. Since all of Mitchell’s points of error relate to liability and he failed to properly raise a point of error on damages, we need not consider them. However, we have considered each point of error and each is overruled. Therefore, we affirm the judgment of the trial court.


author: McDONALD, Chief Justice.

text:
    THOMAS CONVEYOR COMPANY, INC., Appellant, v. PORTEC, INC., Appellee.
    No. 5840.
    Court of Civil Appeals of Texas, Waco.
    Sept. 14, 1978.
    Rehearing Denied Oct. 31, 1978.

      James B. Barlow and Elliott S. Garsek, Barlow, Gardner & Tucker, Fort Worth, for appellant.
    Robert G. West, McGown, Godfrey, Decker, McMackin, Shipman & McClane, Fort Worth, for appellee.
   OPINION

McDONALD, Chief Justice.

Plaintiff (appellee) Portee, Inc. sued defendant (appellant) Thomas Conveyor Company, Inc., to recover an asserted balance due on materials furnished by Portee to Thomas.

Thomas manufactures industrial conveyors; Portee manufactures sprockets, chains and other items used by Thomas in its finished product. Thomas would telephone Portee for a “quote” on materials; then place a “purchase order” to Portee based on such “quote”. Delivery dates were several months later. Upon delivery of items Por-tee charged a greater amount than the “quote” and “purchase order” price, based on increased cost to it of raw materials and labor.

Thomas answered that the contract of the parties was that it was to pay the “purchase order” amount; and in any event no more than a 5% to 10% increase over such amount; and counterclaimed that Por-tee charged it usurious interest by affixing a sticker to its invoices which read “Our terms are 30 days net — 1½% per month finance charge applicable thereafter”. No such finance charge was ever billed to Thomas, accrued on Portec’s books, or ever paid by Thomas or received by Portee.

Trial was to a jury which found that Thomas agreed to pay Portee the “purchase order” price plus 5% to 10%; and found reasonable attorney’s fees for Portee to be $14,000. plus $2000. if the case goes to the Court of Civil Appeals, plus $2000. if the ease goes to the Supreme Court.

The trial court rendered judgment on such verdict for plaintiff for $30,552.85 due on the purchases of materials; $5,512.93 prejudgment interest (from dates invoices should have been paid); interest on the judgment; plus $18,000. for attorney’s fees (provided a $2000. credit if the case not go to the Supreme Court, and $2000. additional credit if the case not go to the Court of Civil Appeals). The trial court further decreed defendant Thomas take nothing on its counterclaim for usury.

Defendant (appellant) appeals on 3 points contending:

1) The trial court erred in denying defendant recovery of interest and penalties for charged usurious interest under Article 5069-1.06 VATS.

2) The trial court erred in allowing plaintiff attorney’s fees.

3) The trial court erred in allowing plaintiff prejudgment interest, and post judgment interest on the prejudgment interest.

Plaintiff (appellee) by cross-point asserts the trial court erred in failing to enter judgment for it for the remaining balance on the “invoice price” of the goods, since as a matter of law the “invoice price” was the agreed price of the goods.

Defendant’s point 1 asserts the plaintiff charged it usury under Article 5069-1.06.

Article 5069-1.06 provides that any person who “contracts for, charges or receives” interest in excess of the amount authorized by law shall be liable for the penalties set forth in the article.

And Windhorst v. Adcock Pipe and Supply, Tex., 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.

On most of plaintiff’s invoices to defendant plaintiff affixed a red “label” or “sticker” duplicated as follows:

Defendant contends the affixing of such legend constitutes a charge of interest within the meaning of Windhorst.

In Windhorst the buyer was actually billed and charged the purchaser for the finance charges. As noted, defendant herein did not bill for any interest, or demand payment for same, and never accrued a finance charge on its books. The evidence was that plaintiff attached the sticker to invoices to encourage customers to pay their bills, and that no action was ever taken to actually charge or collect such finance charge. We conclude with the trial court that the affixing of such label to the invoices does not as a matter of law constitute a usurious “charge”. Killebrew et al. v. Bartlett D/B/A Canadian Lbr. Co., Tex.Civ.App. (Amarillo) 568 S.W.2d 915; in an identical factual situation holds that the legend on an invoice “1½% charged each month on your unpaid balance 30 days after purchase, 50$ minimum charge” does not establish as a matter of law that plaintiff charged usurious interest.

Contention 2 asserts the trial court erred in allowing plaintiff attorney’s fees.

Article 2226 VATS provides: “Any * * corporation * * having a valid claim against a * * corporation * * for material furnished * * may present the same to such * * corporation * * and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. * *”.

All requirements of the statute have been met. Both parties are corporations, the claim was for material furnished. Plaintiff presented its claim more than 30 days prior to filing suit, and the claim was not paid. Plaintiff is represented by attorneys and obtained judgment on its claim. Pacific Coast Engineering Co. v. Trinity Construction Co., Tex.S.Ct., 481 S.W.2d 406; Ganda, Inc. v. All Plastics Molding, Inc., Tex.Civ.App. (Waco) NRE, 521 S.W.2d 940.

Contention 3 asserts the trial court erred in awarding prejudgment interest and post judgment interest on the prejudgment interest.

The trial court awarded plaintiff prejudgment interest on the amounts it found to be owed from the dates such amounts should have been paid; and allowed post judgment interest on such prejudgment interest.

When a definite sum of money is determined to have been due and payable at a date certain prior to judgment, the legal rate of interest is allowable thereon from such date to the date of judgment. And interest is allowable by law on the judgment from the date obtained until it be paid. Phillips Petroleum Co. v. Stahl Petroleum Co., Tex., 569 S.W.2d 480 (1978).

Plaintiff’s cross-point asserts the trial court erred in failing to render judgment for the balance of the “invoice price” of the goods delivered.

Plaintiff sued for the “invoice price” of the goods. Defendant contended it owed only the “quote” and “purchase order” price; and in any event no more than 5% to 10% more than the “quote” and “purchase order” price.

All of plaintiff’s forms contained a provision that prices were subject to change from the “quote” price. Defendant’s forms contained a provision that prices could not be changed without its approval. Both parties’ forms contained provisions that the terms of the printed forms could not be altered without express agreement of the respective parties. There is evidence that both parties knew that prices would be raised from the “quote” or “purchase order” price if costs of production increased; that deliveries were scheduled a number of months following the “quote” or “purchase order”; that both parties knew this; and that representatives of both parties agreed that for the material here involved the agreed price would not exceed 5% to 10% over the “quote” or “purchase order” price.

The jury found the agreed price to be the “purchase order” price plus 5% to 10%; that the agreed price was not the price at time of delivery; and did not answer an issue submitted inquiring if the agreed price was the “purchase order” price, because it was submitted conditionally on answers to the preceding issues.

Defendant’s points and plaintiff’s cross-point are overruled.

AFFIRMED.


author: REYNOLDS, Justice.

text:
    Temple JOHNSON, Jr., Appellant, v. Lola Juanita JOHNSON, Appellee.
    No. 8910.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 18, 1978.

      Garner, Vickers & Purdom (Thomas J. Purdom), Lubbock, for appellant.
    Griffith & Brister (Thomas J. Griffith), Lubbock, for appellee.
   REYNOLDS, Justice.

Temple Johnson, Jr., appeals from a judgment awarding his former wife, Lola Juanita Johnson, two thousand dollars for unpaid child support decreed by a prior judgment. No reversible error is demonstrated from the record brought to this court. Affirmed.

Temple and Lola Juanita agreed to a modification of the child support Temple had been ordered to pay by the Court of Domestic Relations, Nueces County. That court entered the agreement as its judgment which, as material here, stated:

ORDERED, ADJUDGED AND DECREED that the Plaintiff, Temple Johnson, shall contribute to the support of the minor children, Temple Dean Johnson, Phyllis Ann Johnson, and Russell Lane Johnson, in the sum of Three Hundred Twenty-Five Dollars ($325.00) per month, payable at the rate of One Hundred Sixty-Two and 50/100 Dollars ($162.50) on the first and fifteenth of each month, commencing the 15th day of October, 1973, such sums to be paid through the Wife and Child Support office of Nueces County, Texas, and it is further ORDERED, ADJUDGED AND DECREED that when Temple Dean Johnson has attained the age of eighteen years, that this support shall reduce to a monthly support of Two Hundred Fifty Dollars ($250.00), payable for the support of the remaining two children, payable at the rate of One Hundred Twenty-Five Dollars ($125.00) twice monthly as provided above .

After Temple Dean reached the age of eighteen years, Temple paid the $250 monthly support payments until Phyllis Ann became eighteen. At that time, Temple began paying a lesser sum.

Shortly thereafter, Lola Juanita instituted this suit in a district court in Lubbock County. By this action, she sought a judgment for all delinquent child support payments decreed under the prior judgment at the rate of $250 per month.

Following an evidential hearing, the trial court found that Temple was ordered by the Nueces County Court of Domestic Relations to make child support payments for the support of the minor children, including Russell Lane, in the amount of $250 a month, that Temple had not paid as ordered, and that $2,000 was unpaid and owing. Judgment for $2,000 was rendered accordingly.

Appealing without submitting a statement of facts, Temple advances two points of error. The trial court erred, he contends, first in finding that he was ordered to pay $250 a month for the support of one child, and second, in finding that the child support judgment was enforceable and not so vague and indefinite as to be unenforceable.

The child support judgment was certain as long as both Phyllis Ann and Russell Lane were less than eighteen years of age, but the judgment became ambiguous when Russell Lane was the only child under the age of eighteen. See Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). The certain aspect of the judgment gives rise to Temple’s contention that the logical interpretation of the judgment is that it ordered him to pay $125 per month per child; otherwise, he argues, the judgment is too vague and indefinite to be enforceable because it admits of three reasonable interpretations. One of those interpretations is the construction placed on the judgment by the trial court following the evidential hearing.

Because of the ambiguity, the child support judgment is as susceptible of the interpretation placed on it by the trial court as the one contended for by Temple. The ambiguity makes the judgment unenforceable under the authorities which Temple cites for the principle that a judgment must be sufficiently definite and certain to permit its enforcement by contempt or summary process. But that principle relating to judgments generally does not govern the interpretation of a judgment by agreement; rather, an agreed judgment must be interpreted as if it were a contract between the parties and the interpretation thereof is governed by the laws relating to contracts. Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370, 375 (1962).

A contract must be construed so as to give effect to the intention of the parties and, if the intention expressed on the face of the contract is doubtful, resort may be had to parol evidence of the situation and the surroundings of the parties to resolve the doubt. Gardner v. Watson, 76 Tex. 25, 13 S.W. 39, 40 (1890). Similarly, the resolution of an ambiguity in an agreed judgment turns upon the intention of the parties as disclosed by the provisions of the judgment and the surrounding circumstances, Hutchings v. Bates, 406 S.W.2d 419, 420 (Tex.1966), which may be clarified through the admission of extrinsic evidence. La Brie v. McKim, 56 Tex.Civ.App. 322, 120 S.W. 1083, 1084 (1909, no writ). The same rule has been held to be applicable to other ambiguous judgments. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 567 (1937).

To resolve the ambiguity in the child support judgment, the trial court heard evidence which has not been included in the appellate record. Absent a statement of facts, every presumption must be indulged in favor of the court’s findings and judgment. Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (1945). Given this absolute verity of the court’s findings and resulting judgment, Temple’s points of error must be overruled.

The judgment is affirmed.


author: CIRE, Justice.

text:
    INDUSTRIAL CONTRACTORS, INC., Appellant, v. ALBA TOOL AND SUPPLY COMPANY, INC., Appellee.
    No. 1808.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1978.
    Rehearing Denied Nov. 1, 1978.

      Michael G. Shirley, Texas City, for appellant.
    Ellis P. Morris, W. James Kronzer, Kron-zer, Abraham & Watkins, Houston, for ap-pellee.
   CIRE, Justice.

This is an appeal from a suit to recover a commissioii claimed by appellee, Alba Tool, to be due for services rendered in representing appellant, Industrial Contractors, Inc. (hereinafter referred to as I.C.I.) in the sale of certain products. The trial court, sitting without a jury, awarded the claimed commission to Alba Tool. We hold that the contract as written contained certain ambiguities and that parole evidence should have been admitted to establish the intent of the parties. Reversed and remanded.

In October, 1974 I.C.I. entered into a contract with Alba Tool providing that Alba Tool would have the “exclusive right to offer for sale . . . products of the Manufacturer . . . .” In a subsequent paragraph the contract stated that, “Notwithstanding the other provisions hereof, . Alba shall be the exclusive agent of Manufacturer to sell such accounts . .” In consideration for Alba Tool’s promoting such sales “in an aggressive manner,” I.C.I. was to pay Alba a commission of five percent of the invoice price of the goods sold in conformity with the terms of the contract. The contract was for a term of two years.

In January, 1976 I.C.I. cancelled the contract with Alba, alleging inadequate representation of I.C.I. and its products. Alba subsequently brought this suit, claiming sales of $602,273.58 and asking for a commission amounting to five percent thereof, or $30,113.67.

I.C.I. defended on the grounds of failure of consideration and ambiguity of the contract in several respects, particularly in the terms “exclusive right to offer for sale,” “exclusive agent,” and “area of representation.” The trial court sustained Alba’s objections to testimony regarding these terms based on the parole evidence rule. The trial court also excluded, as speculative, testimony by the president of I.C.I. that all of the disputed sales were a direct result of the sales efforts of I.C.I. and that some were made outside the “area of representation” delineated in the contract.

In its findings of fact and conclusions of law the trial court found that the contract had been entered into by the parties and breached by I.C.I. prior to its termination date; that Alba had made sales in compliance with the contractual agreement; that there was no failure of consideration on Alba’s part; and that I.C.I. owed Alba the sum of $30,113.67 plus interest. In so holding the trial court impliedly concluded that the contract was unambiguous. We do not agree.

Appellant urges that the trial court erred in excluding testimony by I.C.I. president Harry W. Beazley which was admissible as parole evidence to explain I.C.I.⅛ understanding of “area of representation.” Under the contract Alba Tool was entitled to commissions on sales made only in the “area of representation” delineated in paragraph four of the agreement. This paragraph stated in its entirety:

4. AREA OF REPRESENTATION: M. W. Kellogg, Litwin, Fluor Corp.— Houston & L. A., Tellepson, Hydrocarbon Const., S.I.P., Inc., Shell Oil and Chem., T.D.A. Edwards Engr., Dow Badische, American Lurgi, Lurgi Group, Procon, Weatherby Engr., Celanese Corp. Engr.— Houston Division.

As appellant points out, this provision is subject to three interpretations: (1) that “area” includes the Houston division of all listed companies except Fluor, which includes the Houston and L.A. divisions; (2) that it includes the Houston and L.A. divisions of the first three companies and the Houston division of the remaining ones; (3) that it includes the Houston division of Celanese, the Houston and L.A. divisions of Fluor, and the world-wide divisions of the other corporations.

I.C.I., by way of bill of exception, introduced evidence to the effect that a large percentage of the disputed sales was outside what I.C.I. understood to be the “area of representation”. The trial judge, in awarding Alba commissions on all sales, apparently found that the “area of representation” was defined by the third interpretation. The rule in Texas is that “if after applying established rules of interpretation to the contract it remains reasonably susceptible of more than one meaning it is ambiguous . . . .” Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). We hold that paragraph four of the contract is ambiguous as a matter of law and that parole evidence should have been admitted. “[I]f the language of a contract is ambiguous, uncertain, incomplete or inconsistent, evidence is admissible to show the meaning intended by the parties.” Kerr v. Taylor, 317 S.W.2d 589, 592 (Tex.Civ.App.-San Antonio 1958, error dism’d).

Appellant further urges that an ambiguity is created by the use of the terms “exclusive right to offer for sale” and “exclusive agency”. There is authority that if an agent has an “exclusive right to sell”, he is entitled to a commission on all sales, including those made by the principal. An “exclusive agency,” on the other hand, will not preclude the principal from making sales himself, and the agent is entitled to no commissions from such sales. Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427, 430-31 (1945). Appellee contends that when the two terms are used in the same document, “exclusive right to sell” controls. Lewis v. Smith, 198 S.W.2d 598 (Tex.Civ.App.-Fort Worth 1946, error dism’d). It appears to us, however, that in the context of the present case these terms create an ambiguity, particularly when they are considered in' connection with the “area of representation” provision discussed above. If the parties indeed intended the contract to be an “exclusive right to sell”, as appellee contends, then Alba would have been entitled to a 5% commission on every sale made by I.C.I. to the listed companies, whether or not Alba had participated in the sale. Under the trial judge’s interpretation of area of representation, Alba would also collect a commission on such sales made by I.C.I. on a world-wide basis.

We believe that these terms, when viewed in this light, create an ambiguity as a matter of law, and that the trial judge should have resolved the ambiguity by admitting the excluded testimony in order to ascertain the intent of the parties. Kerr v. Taylor, supra; Hart v. Light & Jones, 245 S.W.2d 671 (Comm’n App.1922—jdgmt. adopted).

Because this case must be remanded to the trial court, we do not reach appellant’s other points of error. ’

Reversed and remanded.


author: MASSEY, Chief Justice.

text:
    E. A. KELLY and George S. Westerfield, Testamentary Trustees of the Mildred Durst Giraud Trust, et al., Appellants, v. Robert LANSFORD, Trustee of the Pauline Moore Irrevocable Living Trust, et al., Appellees.
    No. 18008.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 5, 1978.
    Rehearing Denied Nov. 2, 1978.

      Franklin, Kelly, Graham & Killough and W. K. Graham, Houston, for appellant.
    Barlow, Gardner & Tucker and James Barlow, Fort Worth, for Robert Lansford, Trustee of the Pauline Moore Irrevocable Living Trust.
    Louise Lansford, Robert Lansford, Individually, and Richard Lansford pro se.
    James G. Cowen, Houston, for Estelle Markham, Tom Markham, Jr. and John Kelly Markham.
   OPINION

MASSEY, Chief Justice.

We hold that one who has by will received a life estate in property plus the power to sell, convey, dispose or expend the same, may cut off and eliminate all future estates in the same property, which may have been derived from provisions in the same will, by irrevocable conveyance to an irrevocable trust. That the settlor conveying the property might provide that he retain the usufruct during his lifetime would not affect the holding.

Mildred Durst Giraud died on May 9, 1970, leaving a holographic will which was admitted to probate in Harris County. She left specific bequests not material of consideration. Section VIII of the will is material, the provisions thereof creating the single issue in the case. Therein Mrs. Giraud left one-half the remainder of her estate to her sister Pauline Moore (Aunt Polly) “for the term of her natural life . . . (with) full and unrestricted power to sell, convey, dispose of, or expend all or any part of said property or the proceeds thereof; but at her death or at my death in the event she does not survive, any undisposed of or unexpended portion of my estate then remaining shall pass to and vest in my residuary beneficiaries under Article IX below.” Article IX named the residuary beneficiaries: E. A. Kelly and George S. Westerfield as trustees for Stella Giraud, a sister-in-law, and, at the death of Stella Giraud to Mary Louise Giraud, a niece.

In 1972 the Section VIII assets were delivered to Aunt Polly. One month thereafter she executed an instrument entitled “The Pauline Moore Irrevocable Living Trust”. Trustee was Robert Lansford of Fort Worth, who also signed. Simultaneously with the execution of the instrument properties described therein (the Section VIII properties in their entirety), were transferred to and accepted by Lansford to be held in such capacity as trustee for Louise Lans-ford, Estelle Markham, etc. (Identities of beneficiaries, qualifications upon rights, etc., have been deleted as they have no effect upon the issues resolved.)

The following paragraphs appear in the instrument:

“Sec. 1:2. Irrevocable Trust. This trust is hereby declared to be irrevocable, and Trustor hereby waives all right and power to alter, amend, or revoke the Trust. Trustor additionally renounces any interest, either vested or contingent, including any reversionary interest or possibility of reverter, in the income or principal of this trust.
“Sec. 2:1. Distributions During the Life of Trustor. During the life of the Trustor, the Trustee shall distribute all of the net income to provide for the Trustor’s support, maintenance, comfort, and welfare at a reasonable standard of living.”

Lansford entered upon and performed the duties of trustee in accordance with provisions of the instrument. In 1974 Aunt Polly died. She left a will by which Robert Lansford was named, and he became, independent executor of her estate.

While Aunt Polly lived, periodic payments were made direct to her of accumulated net income from the corpus of the trust estate. There was undistributed net income at date of Aunt Polly’s death; it was paid to her estate. Thereafter the profits were treated as income to the trust estate.

In this situation suit was brought on May 12, 1977 by residuary beneficiaries E. A. Kelly and George S. Westerfield as Testamentary Trustees of the Mildred Durst Gi-raud Trust, Stella Giraud, and Mary Louise Giraud. All proper defendants were named. Prayer for relief was that the court construe the will of Mildred Durst Giraud; that the Gansfer of the property (received by Section VIII of the will) made by Aunt Polly to Robert Lansford, Trustee, be declared ineffective; and that judgment be rendered that they have all that property received by Aunt Polly under the aforementioned Section VIII which had been delivered to defendants; plus, in the event of the entitlement, an accounting for income derived therefrom (since Aunt Polly’s death) and a judgment therefor.

Trial was before the court without a jury, following which was entered a take nothing judgment, including an adjudication that there was authorization by the Mildred Durst Giraud will for Aunt Polly to have made the disposition she had made in trust of the property received by the provisions of its Section VIII; that it was an effective disposition of property in which she retained the right during her lifetime to receive the income. Included, as an adjudication, was confirmation of transfer of title as applied to included real estate, with legal description sufficient to eliminate any question relative thereto.

From this judgment there was appeal by those who had brought suit as plaintiffs.

We affirm the judgment.

It is the position of appellants that there has been an improper and ineffective attempt by Aunt Polly, beneficiary of a mere life estate in property received by the will of another, to thwart the comprehensive estate plan of her benefactor as reflected by the whole will by device of deeding it away in trust in the instrument entitled “The Pauline Moore Irrevocable Living Trust”; that, in effect, there was no intention to convey and no disposition or any intention to make disposition on the part of Aunt Polly.

Copying from appellants’ brief: By giving this property to her sister for her lifetime with the “full and unrestricted power to sell, convey, dispose of or expend”, Mildred Durst Giraud intended to give to her sister the full benefit of the property. By including in the powers granted to her sister that to “dispose of” she meant that word in its common ordinary sense of to “get rid of; to put out of the way; to finish with; to transfer to the control of someone else as by selling; part with; relinquish; bargain away”. Merriam Webster’s New International Dictionary. Pauline Moore did none of these things. She did not “get rid of” the property; instead she retained the full economic benefits. She did not “put it out of the way”; she merely transferred the management to the trustee while retaining all of the economic benefits. She did not “finish with” it since she retained the right to all of the income. She did not “transfer to the control of someone else as by selling” since she did not even purport to sell. She did not “alienate” because she transferred the bare legal title to a legal fiction of her own creation or rather of the creation of the beneficiaries of the legal fiction, while retaining for herself all of its benefits. She did not “part with” because she retained all of the economic benefits. She did not “relinquish” because she retained all of the income. She did not “bargain away” because there was no “bargain” and no “away”; she retained the full right to the real “use” of the property. The whole concept and the sole utility of private ownership of property is to enjoy its use and benefit and the economic advantages and income it produces; Pauline Moore retained all of those rights and all of those benefits.

We reject the argument and contentions of appellants. On oral presentation their attorney conceded that Aunt Polly could have effectively “given away” the whole of the property received by Section VIII of the will, and that had she done so appellants’ rights would have been extinguished. Necessarily included would be a concession that she could have given away any part of it, that had she done so the portions given would have likewise been alienated.

One view of the case which would require affirmance is that by means of the trust Aunt Polly had given all of the property save and except for the usufruct, a servitude upon an estate of which there was divestiture. The usufruct, as applied to property, means the profits or earnings of an estate of another; the right of enjoying anything in which one has no property, of enjoying a thing the property of which is vested in another, and to draw from the same all the profit, utility, and advantage which it may produce, provided it be without altering the substance of the thing, or of using and enjoying, and receiving the profits of, property which belongs to another, etc. 91 C.J.S. Usufruct, p. 550. The usufructory right, if a donor desires to retain it, is obviously more conveniently protected where property desired to be given to another is conveyed in trust; especially would this be true where there is more than one donee.

An opinion upon which appellants strongly rely (not a trust case) is Littler v. Dielmann, 48 Tex.Civ.App. 392, 106 S.W. 1137 (1908, error refused), by Judge Fly of the San Antonio Court of Civil Appeals. (To be noticed is that in 1908 the notation “error refused” meant merely that the Supreme Court approved the result but not necessarily the opinion of the Court of Civil Appeals.) In the Littler case there was a trial wherein the jury had found the defendant (a woman who by the will of a former husband had received a life estate in property, including the right to sell, dispose or use the same so long as she remained a widow) had not in fact divested herself of title to such property by her pretended fictitious sale to a prospective husband (who had deeded the same property back to her), and that the exchange of deeds was fraudulent and made to defeat the intent of the former testator who had been her husband. Judgment was rendered on the verdict in favor of those whose future interests in the property became vested upon the remarriage of the woman who until that time had held the rights of one possessing a life estate. The case is not in point and in no way supports the contention of appellants because the issues of fraud or fiction involved in the transfer of the Section VIII property were not raised by the evidence. Had they been raised we would have the duty to treat them as resolved by the fact finder against the appellants. In this case there were no findings of fact or conclusions of law requested or filed.

What appellants had by the Mildred Durst Giraud will, was title by way of a “future interest” in the Section VIII property, to become “vested” upon the occurrence of a condition precedent. The “condition precedent” upon which investiture of title was made to depend did not occur. When a succeeding interest is provided to be subject to a condition precedent, as at the termination of a preceding interest, it may fail to become vested. A succeeding interest, unless ended in accordance with the terms of its creation, continues as a future interest until the condition precedent is either fulfilled or become impossible of fulfillment; and in the event the condition precedent becomes impossible of fulfillment the succeeding interest ends. As applied to “remainders” within this rule: when the succeeding interest is a remainder the fulfillment of its condition precedent must be either simultaneous with, or later than, the termination of the prior interest; if earlier terminated the condition precedent cannot be fulfilled so that what was formerly a “future interest” ceases so to be for any pre-existent contingent right to investiture thereby becomes impossible. See Restatement of the Law, Property (1936), § 157, “Future Interests-Definitions,” “Classification of Remainders”; § 239 “Termination of an Interest,” “Succeeding Interest Subject to a Condition Precedent.”

Cases supportive of these legal principles, aside from cases involving disposition by trust, are cited by appellees, viz: Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 825 (1945); Dickerson v. Keller, 521 S.W.2d 288, 292 (Tex.Civ.App.—Texarkana, 1975, writ ref’d n. r. e.); McKamey v. McKamey, 332 S.W.2d 801 (Tex.Civ.App.—San Antonio 1960, writ ref’d); Commercial Bank, Uninc. of Mason v. Satterwhite, 413 S.W.2d 905, 908 (Tex.1967); Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876, 879 (Tex.1948); and Randall v. Estes, 218 S.W.2d 338, 341-2 (Tex.Civ.App.—Dallas 1949, writ ref’d n. r. e.).

49 A.L.R.2d, p. 521, Annotation: Gift or other voluntary transfer by husband as fraud on wife,” contains § 16, “Trusts, generally,” beginning at page 602. Thereat is a discussion of whether a transfer by a husband of property to a trustee under a trust agreement, thereby putting the property beyond the reach of his wife, constitutes a fraud on her rights. It is stated that the test of validity in the cases seemingly is the amount of control over the property retained by the settlor husband.

Thereunder is discussion of the case of West v. Miller, 78 F.2d 479 (1935) (C.A.7, Ill.), cert. denied 296 U.S. 633, 56 S.Ct. 156, 80 L.Ed. 450, the text of A.L.R. including the following:

“[W]here a settlor . . . conveyed his personal property to a trustee, relinquishing all control over the corpus and all right to revoke the trust, and reserving nothing to himself but the bare right to enjoy the income during his lifetime, it was held in . . .a suit in equity by the wife to set aside the trust, that the trust was valid, a completed inter vivos trust. The court rejected a contention that the trust was in effect a disposition causa mortis, stating that it was clear that where a settlor, who had no reason to assume death was pending, conveyed his personalty to a trustee, relinquishing all control over the corpus and all right to revoke the trust, and reserving nothing by the bare right of enjoyment of the income for life, such person had created a completed inter vivos trust which could not be set aside in a suit in equity by the wife.”

There is fortification of what was found in 49 A.L.R.2d in Restatement of the Law, Trusts (1959), § 19, “(The Capacity of the Settlor to Create a Trust)-Transfer Inter Vivos in Trust”; § 74, “Trust Property”; and § 84, “Interest Subject to be Divested”. Therefrom it appears that a person has the capacity to create a trust by transferring property inter vivos in trust to the extent he has capacity to transfer the property inter vivos free of trust: that property which can be held in trust includes such interests as may be the subject of a present transfer by way of outright gift, outright devise or bequest, or sale; and that any interest which is subject to be divested, if transferable, can be held in trust. We so hold in this case.

It is not because judgment of the trial court was against them that the appellants must be held to have lost their case; by the record made on trial that court could not have ruled otherwise. Aunt Polly, whether or not her action be considered morally reprehensible, had the legal right to do what she did do when she created the trust and conveyed to the Trustee the Section VIII property; and this conveyance extinguished all the future interests theretofore held in and to such property by appellants.

Judgment is affirmed.


author: BISSETT, Justice.

text:
    STATE of Texas et al., Appellants, v. Ralph J. FRIEDMANN et ux., Appellees.
    No. 1392.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 5, 1978.
    Rehearing Denied Nov. 2, 1978.

      Stephen Greenberg, Asst. Atty. Gen., Austin, for appellants.
    Reynaldo Garza, Jr., Garza & Garza, Brownsville, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from an order denying the defendants’ motion to dissolve a temporary injunction. We affirm.

On August 8, 1955, the State of Texas acquired, through condemnation, a roadway easement over certain lands owned in fee by Ralph J. Friedmann and wife, Sarah Friedmann, plaintiffs-appellees in this appeal. On September 28, 1976, the State and the City of Brownsville entered into a “multiple use agreement”, pursuant to which the City commenced the construction of a building denominated a “tourist center” upon a certain portion of the land included in the roadway easement. The Friedmanns filed a suit against both the State and the City on November 4, 1977, wherein, among other relief sought, they prayed for a declaratory judgment which would settle the dispute as to whether the affected land could be used by the defendant City as a tourist center; they further asked for a temporary injunction which would enjoin the City, pending final hearing, from doing any more work on the project.

Following a hearing on the application for the temporary injunction, the trial court, by order signed on December 23, 1977, granted the application and a writ of temporary injunction which enjoined further construction of the center during the pendency of the suit was duly issued. Neither the State nor the City appealed from the order which granted the Friedmanns’ application for temporary injunction.

On June 23, 1978, the State and the City filed a motion to dissolve the temporary injunction. The motion was denied on June 27, 1978. The State of Texas and the City of Brownsville have duly perfected an appeal from such order. See Rule 385(d), T.R.C.P.

No evidence was presented by the appellants at the hearing on their motion to dissolve the temporary injunction. Appellants, in their verified motion, pled, in effect, that under the pleadings then on file and in view of the undisputed facts adduced at the hearing on appellees’ application for the issuance of the temporary injunction, their motion should be granted because the injunction had been wrongfully issued. On appeal, appellants contend that the failure to dissolve the temporary injunction constituted an abuse of discretion by the trial court. We do not agree.

It is well settled law in this State that a temporary injunction may be granted which will prevent the performance of an alleged wrongful act during the penden-cy of a lawsuit that seeks permanent relief, and is a remedy which is available to the interested litigant before trial of the case on the merits for the purpose of preserving the subject matter of the controversy as it existed at the time suit was instituted. Dallas General Drivers, Etc. v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873 (1956); Saenz v. Lackey, 522 S.W.2d 237 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). Where a party asks for such an injunction, the trial court is clothed with broad discretion in determining whether to grant the application or not, and the court’s ruling thereon will be reversed only upon the showing of a clear abuse of discretion. State v. Cook United, Inc., 469 S.W.2d 709 (Tex.Sup.1971); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962).

This appeal from the order denying appellants’ motion to dissolve the temporary injunction previously granted is also governed by the rules announced in the cases above cited. The determination of the question of whether to dissolve the temporary injunction lies within the broad discretion of the trial court, and the issue presented by this appeal is limited to the narrow question of whether the trial court, in denying the motion to dissolve the existing temporary injunction, abused its discretion in the matter. We hold that it did not.

The burden of proving that the trial court, in denying a motion to dissolve a temporary injunction issued prior to a trial on the merits, abused its discretion is on the litigant who attacks the court’s action. Marshall v. Good Times, Inc., 537 S.W.2d 536 (Tex.Civ.App.—Fort Worth 1976, writ dism’d). See also Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488 (1943).

In this case, the only evidentiary hearing held in this cause was the hearing on appellees’ application for the issuance of a temporary injunction. An identical situation existed in Marshall v. Good Times, Inc., supra, where it was stated categorically that in the absence of a statement of facts reflecting the proceedings that occurred at the hearing on the motion to dissolve, the Court of Civil Appeals was required to presume on appeal that the trial court’s action in overruling the motion was not an abuse of discretion. We are in full agreement with that announcement.

The record before us does contain a statement of facts which contains the evidence introduced at the November 15 and 16, 1977, hearing on the appellées’ application for a temporary injunction, which was granted on December 23,1977. That order, however, is not the order from which the instant appeal was perfected.

In the case at bar, an examination of the pleadings shows that a bona fide dispute existed at all times pertinent to this appeal concerning the right of appellees to the ultimate relief sought by them in their action. Under the posture of the record as it now exists, we can only conclude that the appellees, at the hearing on their application for the issuance of a temporary injunction, produced evidence which showed a probable right to the injunction and a probable injury in the event that their application was denied, which is all that was required of them at that time; they were not required to establish (at such hearing) that they will probably prevail at the trial on the merits. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Saenz v. Lackey, supra. The determination of the rights of the parties to this action as a result of the condemnation proceedings was not before the trial court in either the hearing on the application for the issuance of a temporary injunction or in the hearing on the motion to dissolve the injunction, and is not before this Court in this appeal. We express no opinion thereon.

The status quo of the subject matter of the dispute between appellees and appellants was the status that existed at the time appellees (plaintiffs) filed this suit. That status should be preserved pending the rendition of a final judgment after a trial on the merits. The trial court did determine from the evidence adduced at the hearing on appellees’ application for a temporary injunction what the status quo was on the date the order granting the injunction was signed, and preserved that status until final judgment. As stated, appellants did not appeal from that order, and at the hearing on their motion to dissolve the injunction, made no attempt to show a change in the conditions which existed at the time of the hearing on appellees’ application for the issuance of the injunction.

Appellants, in support of their position, rely on the decision in Whitaker v. Wilson, 349 S.W.2d 753 (Tex.Civ.App.—Houston, 1961, writ ref’d n. r. e.). There, Wilson, the Water and Sewer Inspector of the City of Pasadena, sued Whitaker, the Mayor of Pasadena, to restrain him from interfering with him (Wilson) in the exercise of his duties as such inspector. The City Commissioners intervened and adopted Wilson’s pleadings, and prayed for a declaratory judgment which would determine the respective powers and duties of the Mayor and the City Commission. They also asked for a temporary injunction which would restrain certain acts of the Mayor pending final hearing. The temporary injunction was granted to the plaintiffs in intervention solely “upon their verified petition in intervention”. Whitaker (the Mayor) did not appeal from the order granting the temporary injunction. Subsequently, he filed a motion to dissolve the injunction, which was denied. He did, however, perfect an appeal from the order which denied his motion to dissolve.

In the Whitaker case, the hearing on the application for the temporary injunction was before a visiting judge; the hearing on the motion to dissolve was before the regular judge. In refusing to dissolve the injunction, the regular judge stated that he was not going to pass on the act of the visiting judge because “if such a precedent was established, the losing party could go before another judge every time a different judge presided, and there would be no end of motions to dissolve or modify temporary injunctions”. The Court of Civil Appeals disagreed; it reversed the judgment and remanded the cause; and, in doing so, held that the regular judge “was required to exercise his discretion in determining whether the temporary injunction should be dissolved or modified.”

The Whitaker case is distinguishable from the case before us in this appeal. In Whitaker, at the time the visiting judge granted the temporary injunction, the court had nothing before it except the interve-nors’ sworn petition. The motion to dissolve, which was supported by evidence, was denied by the regular trial judge, who reasoned that he lacked the discretion to review the earlier judge’s action. On appeal, the Court of Civil Appeals held otherwise. In doing so, that Court made statements which the appellants in the instant case apparently have taken out of context. For instance, at the outset of its opinion in Whitaker, the Court stated that the “whole matter of the propriety of the temporary injunction” was before it “although the appeal is not from the order granting the injunction but from the order refusing to dissolve it.” Upon closer inspection, however, the Court’s statement is not as sweeping as it seems. The “whole matter of the propriety of the temporary injunction” was properly before the Court of Civil Appeals in Whitaker, because the intervenors did not produce any evidence at the hearing on their application for the injunction, but did produce evidence in support of their motion to dissolve, and attempted to show changed conditions which resulted in an alteration of the status quo as it existed at the time suit was filed. That is not the case presented by this appeal. Here, evidence was presented at the hearing on the application for the issuance of a temporary injunction; no evidence was presented by anyone at the hearing on the motion to dissolve. Further, the denial of appellants’ motion to dissolve the existing temporary injunction preserved the status quo which existed as of the date suit was filed, and did not alter such status quo.

At the hearing on appellants’ motion to dissolve the previously issued temporary injunction, the trial court was required to exercise its discretion in determining whether the injunction should be dissolved. It exercised that discretion. In Whitaker, the trial judge refused to do so, and such refusal was, in itself, an abuse of discretion. That factor further distinguishes the case at bar from Whitaker.

After considering the record before us, we hold that the trial judge did not abuse his discretion in refusing to dissolve the temporary injunction. We have carefully considered all of appellants’ points of error, and they are overruled.

The judgment of the trial court is AFFIRMED.