author: HUTCHINSON, Justice.

text:
    Edward T. DICKER et al., Appellants, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.
    No. 8601.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 29, 1978.
    Rehearing Denied Jan. 30, 1979.

      Steven F. Bright, Jones, Graham & Bright, Dallas, for appellants.
    Bill C. Hunter, Allan D. Hilton, Hunter, Stewart, Salzberger & Vineyard, Dallas, for appellee.
   HUTCHINSON, Justice.

Appellants Patrick B. Kirkland and Judy A. Kirkland and appellants Edward T. Dicker and Nanette S. Dicker complain of the granting of appellee’s Lomas & Nettleton Financial Corporation, motion for summary judgment awarding recovery on a written guaranty agreement and denying recovery on a counterclaim filed by Dicker.

On April 15, 1974, Mid Southern Properties, Inc. executed its promissory note payable to the order of appellee in the principal sum of $470,000.00, bearing interest at the rate of 2½% in excess of the greater of the First National Bank in Dallas prime rate or the 90-day dealer commercial paper rate. This note was payable on October 15, 1974, and was secured by a deed of trust upon certain realty located in Dallas County, Texas. The guaranty executed by Dicker and Kirkland on April 15, 1974, provided in part:

“This is a continuing guaranty, and shall apply to and cover all indebtedness and renewals thereof above mentioned or described. The Guarantors, or one or more of them, may give to the Creditor written notice that the Guarantor or Guarantors giving such notice will not be liable hereunder for any indebtedness created, incurred or arising after the giving of such notice; . . . The notice above provided for shall not be considered as given until actually received and acknowledged in writing by an officer of said Creditor.

On October 16, 1974, Mid Southern Properties, Inc. and appellee entered into an agreement extending the maturity date of the note to April 15, 1975, and increasing the interest rate to 5% in excess of the greater of the prime interest rate of First National Bank in Dallas or the 90-day dealer commercial rate, but in no event greater than the maximum rate of interest permitted by applicable law. Mid Southern Properties, Inc. defaulted and the deed of trust was foreclosed and the property securing the note was acquired by appellee at the foreclosure sale. After crediting the proceeds of the foreclosure sale, the sum of $174,492.17 remained due.

This suit was instituted by appellee against Mid Southern Properties, Inc. and the guarantors, including Dicker and Kirkland, to recover the deficiency, interest and attorney fees. In response Dicker filed an answer and counterclaim and Kirkland filed an answer. Thereafter, appellee filed its motions for summary judgment upon its original action and the counterclaim of Dicker. Upon hearing the motions were granted and judgment entered for appellee against all defendants, jointly and severally, for $174,492.17, plus interest thereon in the amount of $42,650.47 as of December 15, 1976, plus per diem interest of $85.8159, plus attorney fees of 10% of the unpaid balance of the principal and interest as of the time of the satisfaction of the judgment. Dicker and Kirkland have perfected appeals.

Appellee pled a cause of action under the Guaranty Agreement against Dicker and Kirkland and supported the same sufficiently in its motion for summary judgment. Its right to a summary judgment therefore depends upon whether or not Dicker and/or Kirkland by their responses presented evidence raising a fact issue on the elements necessary to establish an affirmative defense. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974); Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959). In reviewing summary judgment proofs, the affidavits in opposition thereto should be accepted as true and every reasonable inference therefrom should be in favor of the contentions of the appellants. Hudnall v. Tyler Bank and Trust Company, 458 S.W.2d 183 (Tex.1970); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion and the evidence which tends to support the position of the party opposing the motion should be accepted as true. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965), and all doubts as to the existence of a genuine issue as to a material fact should be resolved against the movant. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, supra.

Kirklands here assert the trial court erred in rendering a summary judgment against them on the ground that they by the affidavit of Mr. Kirkland presented an affirmative defense. This affidavit states in part:

“. . . I was advised continually by Mr. Talkington that because I was attempting to find a buyer for the property or arrange such additional financing, Lo-mas & Nettleton would not file a suit against my wife or me for a claimed deficiency or otherwise pursue my wife or me for a claimed deficiency upon the note executed by Mid Southern Properties, Inc. ...”

In addition, Kirkland averred that he acted in reliance upon the promise of Lomas & Nettleton by actively seeking a buyer for the property, investing his time and money in the search and actually finding a buyer (who defaulted). Kirkland contends that this alleged agreement with appellee constitutes a defense based upon an oral contract to release, oral release, waiver and/or promissory estoppel.

The affidavit of Kirkland raises a fact question as to whether or not he was orally released from his guaranty agreement. An agreement not to sue can be construed as a release and may be properly pled as a defense. The Praetorians v. Simons, 187 S.W.2d 238 (Tex.Civ.App. Dallas 1945, no writ); 76 C.J.S. Release § 44, p. 675. For summary judgment purposes the affidavit is deemed sufficient to raise a fact question as to whether or not the parties’ agreement and subsequent conduct thereunder was sufficient to prevent the operation of the Statute of Frauds. Minchen v. Vernor’s Ginger Ale Co. of Houston, 198 S.W.2d 613 (Tex.Civ.App. Galveston 1947, no writ); McCreless Shopping Village, Inc. v. Burton, 352 S.W.2d 802 (Tex.Civ.App. Fort Worth 1962, writ ref’d n. r. e.); Grayson Enterprises, Inc. v. Texas Key Broadcasters, Inc., 390 S.W.2d 346 (Tex.Civ.App. Eastland 1965, writ dism’d); Restatement (Second) of Contracts, Sec. 222 (1973); 2 Corbin on Contracts, Sec. 302, pp. 93-94 (1950).

Therefore, the judgment against the Kirklands is reversed and the cause remanded to the trial court.

Appellee has also plead a cause of action under the guaranty agreement against the Dickers and has sufficiently supported the same in its motion for summary judgment. The Dickers by the pleadings and Mr. Dicker’s affidavit set forth as an affirmative defense that the guaranty agreement had been effectively revoked prior to the extension and renewal of the note of Mid Southern Properties, Inc. and that the renewal of the note substantially increasing the interest rate released and discharged them from any liability on the indebtedness. There is no contention that the Dickers complied with the terms of the guaranty by giving “written notice” that they would no longer guarantee payment of loans made after such notice. However, this provision of the guaranty is not here relied upon by appellee as a written revocation would be effective only as to loans made subsequent to such notice and not to a renewal of an existing loan. The guaranty expressly covers extensions and renewals and the guarantor is bound by all obligations arising within the scope of the guaranty agreement. Blount v. Westinghouse Credit Corporation, 432 S.W.2d 549 (Tex.Civ.App. Dallas 1968, no writ). A change in the rate of interest by the renewal note does not discharge a guarantor on a continuing guaranty. First National Bank v. International Sheep Co., 29 S.W.2d 513 (Tex.Civ.App. El Paso 1930, writ ref'd).

Dicker did not plead nor offer any evidence that the amount of attorney fees provided for in the note was unreasonable. The unreasonableness of an award of attorney’s fees is an affirmative defense that must be pled and proved. International Shelters, Inc. v. Corpus Christi State National Bank, 475 S.W.2d 334 (Tex.Civ.App. Corpus Christi 1971, no writ).

The judgment against the Dickers on the note for principal, interest and attorney fees is affirmed.

We now consider Dicker’s point that the trial court erred in granting summary judgment denying the counterclaim based upon alleged violations of Section 17.-46 or Section 17.50, Tex.Bus. & Comm.Code Ann., or Article 5069-1.01, et seq., Tex.Rev. Civ.Stat.Ann., without first affording an opportunity to amend. Appellee had filed no special exceptions to the allegations of the counterclaim which would have given Dicker an opportunity to amend to state a cause of action and in such cases it has been held that the granting of a summary judgment on the pleadings alone is error. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974); Trucker’s, Inc. v. South Texas Construction Company, 561 S.W.2d 855 (Tex.Civ.App. Corpus Christi 1977, no writ). A summary judgment based solely upon the pleadings of the complaining party is improper unless such party fails or refuses to amend his pleadings to state a cause of action or pleads facts which affirmatively negate his cause of action. Trucker’s, Inc. v. South Texas Construction Company, supra; Ceshker v. Bankers Commercial Life Ins. Co., 558 S.W.2d 102 (Tex.Civ.App. Tyler 1977, writ ref’d n. r. e. ).

The allegations of the counterclaim are that appellee violated the usury laws by requiring the appellants to form a corporation in order that a higher rate of interest might be charged and that appellee’s failure to provide permanent financing constituted a false, misleading, fraudulent and deceptive trade practice.

The summary judgment was properly granted as to that portion of the counterclaim alleging an illegal rate of interest. A lender may lawfully require, as a condition to the making of a loan, that the loan be made to a corporation rather than to an individual borrower, and such a condition does not, in itself, make the transaction usurious even though the purpose of the requirement is to permit the lender to charge a higher rate of interest. Houston Furniture, Etc. v. Bank of Woodlake, 562 S.W.2d 880 (Tex.Civ.App. Houston-1st Dist. 1978, no writ); American Century Mort gage Investors v. Regional Center, Ltd., 529 S.W.2d 578, 582 (Tex.Civ.App. Dallas 1975, writ ref’d n. r. e.).

Dicker also fails to state a cause of action for fraud under Tex.Bus. & Comm.Code Sec. 17.46, et seq. However, the supporting affidavit does aver facts sufficient to state a cause of action for breach of contract and it cannot be said that Dicker pled facts which affirmatively negate this cause of action. Had Dicker been allowed to amend his counterclaim to plead a cause of action for breach of contract, the summary judgment would have been avoided. The summary judgment as to the Dickers’ counterclaim is remanded for further determination on the merits.

The judgment against Kirkland is reversed and remanded; the judgment against Dicker is affirmed, and the judgment for appellee on the Dicker counterclaim is reversed and remanded.

      . “This is a continuing guaranty, and shall apply to and cover all indebtedness and renewals thereof. . . . ”


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Johnny FERRELL, Appellant, v. FIRST NATIONAL BANK OF BRYAN, Appellee.
    No. 5952.
    Court of Civil Appeals of Texas, Waco.
    Jan. 11, 1979.
    D. Brooks Cofer, Jr., Cofer & Van Over-beek, Bryan, for appellant.
    Frank Steelman, Bryan, for appellee.
   HALL, Justice.

This is a garnishment proceeding. In April, 1973, appellee First National Bank of Bryan recovered judgment for $5,277.95 against appellant Johnny Ferrell in cause number 19128 in the District Court of Brazos County, Texas, on a promissory note. Citation against appellant in that case was by publication. On October 7, 1976, appel-lee initiated the present suit by filing its sworn application for writ of garnishment against First National Bank of Bellville, Bellville, Texas, setting up the judgment against appellant and asserting that garnishee bank was indebted to appellant. The writ of garnishment was issued on October 11, 1976. On November 4, 1976, appellant intervened and moved to quash the writ on grounds that (1) the application was fatally deficient in its statutory requisites, and (2) the judgment in cause no. 19128 was void for want of proper service of citation against him in that case. Garnishee bank answered on November 9, 1976, that it was indebted to appellant Ferrell under two accounts in the sum $2,914.72.

Appellant’s motion to quash the writ of garnishment was heard on May 24, 1978; and it was denied by order dated May 9, 1978, which recites that appellant Ferrell and appellee Bank were present and represented by counsel at the hearing and that evidence was adduced on the motion. Thereafter, on May 16, 1978, the judgment in question was rendered awarding appellee a recovery of $2,914.72 against garnishee bank. Appellant filed a motion for new trial which, after a hearing, was overruled. He perfected this appeal. We affirm the judgment.

Article 4076, Vernon’s Tex.Civ.St., provides for the issuance of writs of garnishment where the plaintiff has a valid, subsisting judgment and makes affidavit that “the defendant has not, within his knowledge, property in his possession within this State, subject to execution, sufficient to satisfy such judgment.” (Emphasis supplied). In our case, appellant averred in its application for writ of garnishment that “defendant [Ferrell] has not within Affi-ant’s knowledge, property in his possession subject to execution sufficient to satisfy the Judgment,” but failed to include the words “within this State” after the word “possession.” Appellant asserts that omission rendered the application fatally defective. We disagree. It is our view that the allegation that defendant did not have property in his possession subject to execution necessarily included the allegation that he did not possess property “in this State” subject to execution.

Appellant asserts the record fails to establish that citation by publication in cause number 19128 was proper, and that the judgment in that case is therefore void, because the evidence fails to show that appellant exercised diligence to locate him for personal service prior to service by publication. This contention is based upon evidence adduced on the hearing of appellant’s motion for new trial. However, as we have said, the interlocutory order overruling appellant’s motion to quash the writ of garnishment (in which appellant attacked the service in the prior suit) recited that defendant was present at the hearing on the motion and that evidence was taken thereon. Appellant has not brought forward the evidence adduced at that hearing. “When the complaint is that the evidence is factually or legally insufficient to support vital findings of fact, or that the evidence conclusively refutes vital findings, this burden cannot be discharged in the absence of a complete or an agreed statement of facts.” Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.Sup.1968). This case is not before us on an agreed statement of facts. Under Englander, we must assume the evidence introduced on appellant’s motion to quash the writ of garnishment supported the finding of due diligence by appellee Bank to locate appellant for personal service in cause number 19128.

Finally, appellant contends the judgment awarding appellee recovery against garnishee bank must be set aside because no evidence was offered to support the recovery. We overrule that complaint. Other than the grounds set up in appellant’s motion to quash which we have already mentioned, appellant did not contest appel-lee’s right of garnishment. The issues raised in the motion to quash had been heard and determined prior to rendition of the judgment against garnishee bank. In its answer, garnishee bank admitted that when the writ of garnishment was served it was indebted to appellant in the sum $2,914.72, and it did not contest appellee’s right to those funds. The judgment was for that amount. In its pertinent part Rule 668, Vernon’s Tex.Rules Civ.Proc., provides that should it appear from the answer of the garnishee “that the garnishee is indebted to the defendant in any amount, or was so indebted when the writ of garnishment was served, the court shall render judgment for the plaintiff against the garnishee for the amount so admitted.”

Appellant’s points and contentions are overruled. The judgment is affirmed.


author: McKAY, Justice.

text:
    ANDERSON COUNTY TAXPAYERS’ LEAGUE et al., Appellants, v. CITY OF PALESTINE, Texas, et al., Appellees.
    No. 1246.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 11, 1979.

      B. J. Wynne, Wynne & Wynne, Wills Point, for appellants.
    Bascom Bentley, III, City Atty., Palestine, George A. Staples, Jr., Staples & Foster, Hurst, for appellees.
   McKAY, Justice.

This is an appeal from the denial of a temporary injunction by the trial court. This suit was brought by three individuals, and as a class action, to enjoin the City of Palestine and the Palestine Independent School District from approving their tax rolls or collecting any taxes under an allegedly discriminatory and illegal plan of taxation.

Appellants are the Anderson County Taxpayers’ League, an unincorporated association, and three individuals, John Cumby, Gordon B. Broyles, and Tom D. Broyles, who purport to sue both individually and as representatives of all taxpayers who own property in the city and school district. They brought this action against appellees, i. e., the City of Palestine (“City”), the Palestine Independent School District (“School District”), the Tax Assessor-Collector of the City, and the three members of the Board of Equalization (“Board”) of the City. Appellants alleged that the prerequisites for a class action had been met, viz., that the class was so numerous that joinder of all its members was impractical, that there were questions of law and fact common to the class, that the claims of the individuals purporting to represent the class were typical of the claims of the class, that the representatives would fairly and adequately protect the interests of the class, and that appellees had acted or refused to act in cases concerning different members of the class on grounds generally applicable to the class as a whole. Appellants further alleged that they owned property, both real and personal, in the city and school district. The City and School District were said to have entered into an agreement whereby they both made use of the City’s tax assessor-collector and board of equalization.

According to the petition, the City determined to reappraise all property in the city and school district, but the appraisers appointed to perform that job appraised real property without regard to its market value, and they failed to appraise all mortgages, savings accounts, stocks, bonds, and cash, though they were obligated to do so. This method of valuation was asserted to constitute an arbitrary and fundamentally erroneous plan which is prohibited by sections 1 and 20 of Article VIII of our State Constitution, and which resulted in an unlawful assessment roll. Additionally, procedural prerequisites were alleged to have been omitted, to-wit: the tax assessor-collector failed to secure the required approval of the assessment rolls by the Superintendent of Receipts, Disbursements and Accounts, and he also failed to give notice by publication of the names of the owners of all property on which the valuation had changed, both actions allegedly being required by the City Charter as conditions precedent to valid action by the Board.

Appellants then alleged they protested the incorrect assessments at hearings before the Board, but to no avail. The tax plan was alleged to be discriminatory, denying appellants’ right to due process, because the tax rate would be calculated (1) on a tax base which did not include personal property such as mortgages, notes, bonds, and cash, and (2) on property values in excess of market value. Appellants claimed they had no adequate remedy at law and that they would suffer irreparable injury unless in-junctive relief were granted. The prayer was for a temporary restraining order preventing appellees from approving the tax rolls, collecting taxes, or taking any other action to implement said allegedly unlawful scheme of taxation; for a temporary injunction; and for a permanent injunction and writ of mandamus (1) ordering appel-lees to abandon the present method and scheme of assessment and taxation, (2) ordering appellees to assess all property subject to taxation, including personal property, and (3) enjoining appellees from collecting any taxes on any of appellants’ property until appellees had complied with the orders prayed for above.

At an ex parte hearing, the trial court entered its temporary restraining order as prayed for. Appellees then answered, specially excepting to a lack of specificity in several of the allegations of the petition, generally denying appellants’ allegations, specifically denying that there was any deliberate plan to allow any class of property to escape taxation and affirmatively urging the difficulty of locating and assessing personal property.

After the hearing on the application for a temporary injunction, the trial court entered its order denying the same. It is from this order that appellants have duly perfected their appeal.

The trial court filed findings of fact, inter alia, that the tax assessor-collector was diligent in his attempts to seek out taxable property in the hands of banks and other financial institutions; that the tax assessor did not intentionally leave personal property in the hands of financial institutions off the tax rolls; that there was no plan, scheme, or design by the taxing authorities, tax assessor, city council, school board or board of equalization to omit any property from taxation; that neither John Cumby (one of the individual plaintiffs below and one of the individual appellants here) nor his wife, both of whom testified in the trial court, rendered any of his or her property for the current tax year, and both of them appeared before the Board and received a hearing. The conclusions of law filed by the trial court were as follows:

“1. The existence or identity of a class was not proved. Plaintiffs are not entitled to proceed as a class.
“2. It is impossible to determine whether there was a failure to tax any Plaintiff on an equal and uniform basis with other property owners in the district.
“3. Plaintiffs failed to show substantial injury.
“4. Plaintiffs did not meet their burden of proof and the temporary injunction should be denied.”

To warrant the issuance of a temporary injunction, the applicant therefor need only show a probable right and probable injury; he need not go so far as to demonstrate that he will finally prevail on the merits. State v. Southwestern Bell Telephone Co., 526 S.W.2d 526, 528 (Tex.1975); Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). But the evidence must tend to support a right to prevail on the merits. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961).

In an appeal from an order granting or denying a temporary injunction the appellate court is limited to determining whether there has been a clear abuse of discretion in granting or denying the interlocutory order. Davis v. Huey, 571 S.W.2d 859, 861-2 (Tex.1978); State v. Southwestern Bell Telephone Co., supra. Abuse of discretion is not shown where the trial court bases its decision on conflicting evidence. Davis v. Huey, supra.

To authorize the trial court to issue a temporary injunction the applicant has the burden of pleading facts which, if proved, would entitle him to a permanent injunction, and also the burden of offering evidence tending to prove he has a probable right thereto on final hearing and will suffer probable injury in the interim. Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683, 686 (Tex.1968); Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968). Thus, the evidence must be reviewed, but only to see if it supports the court’s exercise of discretion, and if the evidence is conflicting, the order will not be reversed if there is evidence to support it. City of Carthage v. Allums, 398 S.W.2d 799, 803 (Tex.Civ.App.—Tyler 1966, no writ).

Appellants and appellees (and the trial court) seem to have proceeded upon the premise that the burden upon appellants was to show substantial injury in this temporary injunction case. It is our view that the burden of a petitioner in a temporary injunction case wherein he complains of an alleged illegal tax scheme is that he show a probable right to relief and that he will probably suffer substantial injury.

Appellants bring twelve points of error, some of which we believe must await a trial on the merits of their case. We must confine our review to whether the record demonstrates that appellants have shown they have a probable right to relief and that they will suffer a probable injury unless the temporary injunction is granted and the status quo preserved.

By their point seven appellants complain that the undisputed evidence showed appellees City and School District had adopted a plan by which they were omitting all personal property, except that owned by a business, from the tax rolls, and that therefore there was error in the trial court’s refusal to grant the temporary injunction. We agree that the procedure, plan or scheme used by the City and School District does not meet the requirements of the Constitution and statutes of Texas.

The evidence reveals that all personal property, except that owned by a business, was omitted from the tax rolls of the City and School District and that such omission was not accidental, but was the result of a fundamentally erroneous plan or scheme or procedure.

The tax assessor-collector testified at the hearing on the application for temporary injunction that he did not put bank deposits, mortgages, stocks, bonds, household furniture, automobiles, or any other personal property on the tax rolls except business personal property. A member of the Board testified that no effort was made to place personal property on the tax rolls although he knew there was personal property in the city and school district that had been left off the rolls. The mayor of the City of Palestine testified that individual personal property was omitted from the tax rolls and that no steps were taken to tax said property. The president of the school board indicated in his testimony that no effort was made to place personal property on the rolls. Finally, a second member of the Board testified that he was unaware that personal property should have been on the rolls. Although these same witnesses indicated, in response to questions by appellees’ counsel, that there was no deliberate scheme to omit certain classes of property from the tax rolls, we hold that the undisputed facts lead to the conclusion that there was such a scheme, or plan, willfully followed.

Significantly, appellees did not attempt to show in the trial court, nor do they argue here, that the plan of taxation was not illegal, but instead they have attempted to show and do argue here that the difficulty of determining what taxable personal property each resident of the city and school district owned excused the failure to place it on the rolls. There was much testimony to'the effect that, had the tax assessor-collector attempted to determine from the banks information concerning the names of depositors and the amount each had on deposit, the bankers would have refused, pursuant to Art. 342-705, Tex.Rev. Civ.Stat.Ann., to provide it. The practical difficulty of taxing certain classes of property, however, does not render it not taxable; neither does it alter the duty of taxing officials to tax it. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 382 (1955). Here, for example, no effort was made to require taxpayers to render their personal property, including bank deposits, for taxation.

It is not necessary that the taxing officials intend specifically to discriminate against or injure appellants. It is sufficient that by their action they denied appellants the equal protection of the Constitution and laws of this state. Lively v. Missouri, Kansas & Texas Railway Co. of Texas, 102 Tex. 545, 120 S.W. 852, 857 (1909); Brown v. First National Bank of Corsicana, 175 S.W. 1122, 1126 (Tex.Civ.App.—Dallas 1915, writ ref’d).

Art. VIII, sec. 1 of the Texas Constitution mandates that taxation be equal and uniform and that all property be taxed in proportion to its value. Art. 7145, Tex. Rev.Civ.Stat.Ann., states, “All property, real, personal or mixed ... is subject to taxation . . . .” See also Art. 7174. It is well settled that a deliberate decision to omit a particular class of property from the tax rolls and thereby from taxation constitutes the scheme of taxation an illegal one. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 416-8 (1954); State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573 (1954); Hutt v. City of Rocksprings, 552 S.W.2d 583, 585 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.); Bynum v. Alto ISD, 521 S.W.2d 656, 658-9 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.).

We are of the opinion that the record indicates that the method, plan or scheme used by the City and School District is, as a matter of law, in violation of the Constitution and statutes of Texas and therefore illegal. As a result we believe appellants have met the first half of their burden by showing that they have a probable right to relief on a trial on the merits of their case.

The second part of appellants’ burden of proof, that they show that probable substantial injury would result to them if the illegal plan of taxation were put into effect, is addressed by their third, fourth, and fifth points of error. Points three and five assert error by the trial court in refusing to issue the temporary injunction so as to maintain the status quo until trial could be had on the merits because the undisputed evidence showed appellants have suffered and will probably suffer substantial injury as a result of the plan of taxation employed by the City and School District. Point four complains of error in the refusal of the temporary injunction since the undisputed evidence showed a probable right and a probable wrong, and of an abuse of discretion in the failure by the trial court to apply the law to the facts. Appellants claim that they have shown a right to have personal property taxed and a wrong in that appellees refused to tax personal property.

Appellants’ arguments are appealing, but their proof is lacking. Even though the taxpayer has shown the tax plan to be illegal, he must also show how the illegality damages him, i. e., that he probably will be damaged or injured. Johnson City ISD v. Crider, 535 S.W.2d 725, 728 (Tex.Civ.App.— Austin 1976, writ ref’d n. r. e.). While it is obvious that someone was injured by this arbitrary and illegal plan of taxation, the individual appellants presented no evidence to show that they themselves were injured or that they would suffer probable injury.

The only witness who testified regarding the effect the tax plan would have on her personally was Marietta Cumby, the wife of one of the individually named plaintiffs below but not a named plaintiff herself. She testified on direct examination that she owned approximately $170,000 worth of real property and no personal property. On cross-examination she stated that she owned personal property consisting of not more than $250 in a bank account and a pickup truck. Only one of the individual plaintiffs testified in the trial court. John Cumby, husband of Marietta Cumby, was called apparently only to discredit or impeach the previous witness, the tax assessor-collector, concerning a conversation between them. On direct examination Cumby stated that he lived in the city and school district, that he went to the tax office to render his property, and that he had a conversation with the tax assessor-collector in which he asked if any personal property were taxed by the city or school district and received the reply that only business personal property in the amount of $12,000,000 was taxed and no individual personal property was taxed. On cross-examination Cumby stated that he did not render any personal property and that he had personal property consisting of cash, a car and a bank account. Cumby was later recalled to state how he came into possession of some copies of financial statements published by savings and loan associations in Palestine. This is the extent of the testimony of the only individual appellant who appeared in the trial court as a witness.

None of the three individual appellants testified as to the amount of real property that they might have owned. None of them testified concerning their personal property except Cumby on cross-examination. There was no proof that any of the individual appellants were or probably would have been substantially injured by the application of the City and School District’s tax plan to them.

Evidence was admitted to show the amount of money on deposit in the three banks in Palestine and it was shown that these deposits were not placed on the tax rolls. Appellants argue that this amount of some $60,000,000 in personal property (bank deposits), if added to the $70,000,000 of property on the tax rolls would reduce the tax bill of appellants by 46 per cent, that this results in a substantial benefit to appellants, and that the failure to add said deposits to the tax rolls will result in substantial injury to appellants.

Appellants rely on Whelan v. State, supra, and argue that the omission of several million dollars in bank deposits from the tax rolls would result in substantial injury to them. Whelan was not a temporary injunction case as we have here; but was a trial on the merits. A close reading of that opinion, however, indicates that the court there held that the complaining taxpayer must show substantial injury to himself. In the instant case none of the appellants showed that he had such a preponderance of taxable real property over taxable personal property that he would probably suffer substantial injury by the plan of taxation.

We recognize that the burden of proof in a hearing on application for temporary injunction is not as great as that in a trial on the merits, Davis v. Huey, supra, but here there was presented no evidence at all of injury or probable injury to appellants themselves. We hold, therefore, that the trial court did not abuse its discretion in holding that appellants have failed to meet their burden of proof with regard to a showing of probable substantial injury so as to entitle them to a temporary injunction pending a trial on the merits. Appellants’ points of error three, four and five are overruled.

By their point of error eight, appellants assert error by the trial court in refusing the temporary injunction since the illegal plan of taxation deprived them of their rights under the Constitution and statutes of the State of Texas. The argument here appears to be that deprivation of constitutional rights may constitute the required probability of substantial injury. The case law in this state, however, holds uniformly that the injury required to be shown must be a pecuniary one. The holdings are to the effect that those attacking a plan of taxation as illegal must show that, as a result of such plan, they are or would be required to pay more than their fair share of the taxes. See, e. g., Lancaster ISD v. Pinson, 510 S.W.2d 380 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). It is by virtue of their being required to shoulder a disproportionate tax burden that their constitutional and statutory rights to equal and uniform taxation are violated. Lively v. Missouri, Kansas & Texas Railway Co. of Texas, supra. Appellants’ point of error eight is overruled.

In our view the record demonstrates that appellants did not meet their second burden of showing a probable injury to themselves.

We have considered all of appellants’ points, and in reviewing the record before us here, we are of the opinion that the trial court did not abuse its discretion in denying appellants’ application for a temporary injunction.

Judgment of the trial court is affirmed.


author: CADENA, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Stanley F. LACKEY et al., Appellees.
    No. 16008.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 12, 1979.
    Rehearing Denied Feb. 14, 1979.

      Charles R. Lind, Asst. Atty. Gen., Austin, for appellant.
    Corbin L. Snow, Jr., San Antonio, Ronald L. Sutton, Junction, for appellees.
   OPINION

CADENA, Chief Justice.

This is an appeal by the State of Texas from a judgment, based on a jury verdict, awarding $93,957.00 as compensation for the taking by the State of 15.545 acres out of a 1,513.59-acre tract for highway purposes. Defendants are Stanley F. Lackey and wife, Edna Bruns Lackey, named in the petition in condemnation as owners of the land, and Federal Land Bank of Houston, a lienholder.

In answer to the three special issues customarily submitted in cases involving a partial taking, the jury found that the value of the part taken was $7,073.00, and that the remainder was damaged in the amount of $86,884.00.

The State’s first four points complain of the admission of the testimony of R. N. White, Jr., and Cliff Lewis, two of the witnesses who testified on behalf of defendants concerning the value of the part taken and the damages to the remainder. The State’s complaint is limited to that portion of the testimony of the two witnesses concerning damage to the remainder.

White testified that in determining the value of the remaining land before and after the taking he considered the remainder to consist of 1,338 acres rather than 1,498 acres, which would be the acreage remaining if the part taken (15.545 acres) is subtracted from the area of the entire tract (1,513.59 acres). He explained his position by stating that a portion of the remaining land, consisting of 160 acres, “lacks unity of use with the other property.” At this point the State objected to any testimony by White concerning damages to the remainder because his testimony showed that he had not appraised the entire property. Subsequently, the State moved to strike the testimony of White concerning the damages to the remainder.

In cases involving a partial taking of land the landowner is entitled to claim severance damage to all of his remaining land “provided it is contiguous and there is unity of use.” Southwestern Bell Telephone Co. v. Ramsey, 542 S.W.2d 466, 472 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). Therefore, it was proper for the witness to limit severance damage to that portion of the land which, in his opinion, satisfied the requirement of unity of use.

Kral v. State, 345 S.W.2d 358 (Tex.Civ.App.—Amarillo 1961, no writ), does not support the State’s contention that White’s testimony should have been excluded. The evidence in that case established that all of the condemnee’s remaining property “was used for one purpose as a unit.” 345 S.W.2d at 359. The witness whose testimony concerned only a part of the remaining property did not state, as did White here, that the portion of the remainder which he had excluded from his appraisal had no unity of use.

City of Irving v. Caster, 397 S.W.2d 952 (Tex.Civ.App.—Dallas 1965, no writ) is also clearly distinguishable. In this case White testified that the value of the Lackey property before the taking was $450 an acre. Since White did not believe that the 160 acres in question had been damaged, he assigned to it the same value per acre after the taking as before the taking. There was no such testimony in Caster, and the testimony of White in this case clearly makes Caster inapplicable. Further, White’s testimony was sufficient to enable the jury to calculate the “after” value of the entire 1,498 acres remaining after the taking simply by taking the value assigned by White to the 1,513.59 acres which he regarded as being part of the “unit” and adding to that figure the value of the 160 acres (160 X $450.00). See State v. Brown, 429 S.W.2d 207, 209 (Tex.Civ.App.—Corpus Christi 1967, no writ). This, of course, would have been no more than an exercise in futility, since adding the same figure to the minuend and to the subtrahend would not affect the result. It is thus apparent that if the admission of White’s testimony was, in fact, error, it was harmless.

The State challenges White’s testimony as to the value of the remainder because he stated that in arriving at his valuation he considered damages “to the ranching operation” conducted by the Lackeys on the land. He testified that as a result of the division of the land by the highway there would be additional cpsts in the operation of the land. The State’s reliance on City of Dallas v. Hallum is misplaced. 285 S.W.2d 431 (Tex.Civ.App.— Dallas 1955, writ ref’d n. r. e.). In Hallum the challenged testimony concerned the loss of business due to the diversion of traffic resulting from the closing of a street. Nor is State v. Zaruba applicable here. 418 S.W.2d 499 (Tex.1967). in Zaruba the Supreme Court applied the well settled rule that “damage to the established business or what is called ‘good will’ is not compensable as a separate and independent item of recovery.” 418 S.W.2d at 502. White’s statements concerning “damage to the ranching operation” did not relate to loss of business or customers due to circuity of travel or lessened access to the condemnees’ business resulting from the building of the highway. White was referring to the fact that because the construction of the highway physically divided the remaining land, the landowner would encounter added difficulty in utilizing the remaining land as a unit in the ranching operation. This circumstance, according to White, would result in a loss of efficiency and a corresponding increase in the cost of operating the ranch. That is, the remaining land was made less suitable for its highest and best use because of the physical separation of one part of the land from the other. Such factors may be considered in determining severance damages. See State v. Buck, 489 S.W.2d 642 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

With respect to the testimony of Lewis, the State complains that in appraising the value of the remainder before the taking, this witness considered the remainder as consisting of 1,498 acres, while his testimony as to the “after” value was based on the assumption that the remainder consisted of only 1,269 acres. An examination of Lewis’ testimony reveals that he became confused while testifying. On some occasions he stated that in determining the value of the remainder after the taking he considered the entire tract of 1,498 acres. At other times he spoke of the remainder as consisting of 1,269 acres. His testimony can be correctly described as being inconsistent and contradictory at times. However, the fact that a witness contradicts himself is not a ground for excluding his testimony. The trial judge correctly ruled that such inconsistencies and contradictions were merely factors to be considered by the jury in determining the weight to be given to his testimony.

Points 5 and 6 assert that the trial court erred in refusing the State’s request to submit a special issue to determine whether a unity of use existed between the 160 acres in question and the rest of the 1,498 acres which remained after the taking of the portion needed for the highway. With respect to severance damages, the trial court submitted an issue inquiring as to the value of the remainder before the taking and a separate issue inquiring as to the value of the remainder after the taking. This has been the method of submitting the question of severance damages since the decision in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). The answer to an issue inquiring as to the size of the remainder would not establish the existence or nonexistence of a component element of the landowner’s claim; rather, it would merely determine the existence or nonexistence of some subordinate fact which, if accepted by the jury, would be a probative circumstance relevant to the determination of the controlling question. That is, the issue requested by the State would be merely “evidentiary” and the trial court did not err in refusing to submit such issue. See 3 R. McDonald, Texas Civil Practice § 12.06.1, at 280-83 (rev. 1970).

We need not determine whether, under the facts of this case, it would have been proper to submit an explanatory instruction defining the term “remainder” in such a way as to incorporate the requirement of unity of use. The State requested no such instruction or definition. A party who desires the submission of an explanatory instruction or definition must tender the requested instruction or definition in substantially correct form. 3 R. McDonald, supra, at § 12.32.3. Over the State’s objection, Alfred Sheppard testified that he had formerly been an Assistant State Attorney General for seven years and that, during such time, had filed several condemnation suits on behalf of the State. He added that on one occasion, with the full knowledge and consent of his superiors, he had included in one condemnation statement several tracts which were under different ownerships in order to minimize the severance damages to the several tracts resulting from a partial taking. The State, during cross-examination of Mr. Lackey, developed the fact that prior to the initiation of the condemnation proceedings a part of the 1,513.59-acre tract was the community property of Mr. and Mrs. Lackey, while the major portion of the tract was the separate property of Mrs. Lackey. In response to questions asked by counsel for the State, Mr. Lackey testified that he had conveyed his interest in the community property to his wife so that there would be a unity of ownership as to the entire tract. He explained that he did this because the State Highway Engineer had told him that the entire tract to be taken would be carved from that portion of the ranch which was community property. The engineer further explained that the possible effect of the taking on the portion of the ranch owned by Mrs. Lackey in her separate right could not be considered due to absence of unity of ownership. Since the ranch was being operated as a unit and, according to Mr. Lackey, the taking would affect the entire ranching operation, he conveyed his interest in the community land to his wife in exchange for another tract owned by his wife in her separate right.

The facts elicited by the State during the cross-examination of Mr. Lackey were clearly intended to establish the fact that the exchange of lands by Mr. and Mrs. Lackey would increase the amount of severance damages for which the State would be liable. The testimony of Mr. Sheppard tended to counteract this by showing that treatment of separate tracts as a unity did not necessarily result in an increase in severance damages. In any event, we conclude that Mr. Sheppard’s testimony did not result in prejudice to the State, since he added that the manner in which the State had proceeded in this case could not possibly result in harm to the Lackeys. He added that in this case the State had given the Lackeys the benefit of every doubt, and he described the manner in which the State handled the case as “commendable.”

The State assigns as error the fact that the trial court permitted defendants to introduce the judgment in the condemnation case concerning which Mr. Sheppard had testified. After the trial court had sustained the State’s objection to all portions of the judgment with the exception of that portion which showed that the State had included in one proceeding several tracts owned by different persons, the State objected to the admission of any portion of the judgment. At this point defendants withdrew their offer of the judgment in evidence and the instrument was not admitted. We find no ground for reversal.

The State’s assertion that the trial court erred in permitting Mr. Lackey to testify concerning portions of his conversation with one of the State’s negotiators is without merit. The first reference to such conversation was elicited by the State during cross-examination of Mr. Lackey, and the State raised no objection nor did it request that the testimony be stricken. Under these circumstances the State has no basis for complaint. See City of Rockwall v. Mitchell, 497 S.W.2d 378, 382 (Tex.Civ.App.—Waco 1973, writ ref’d n. r. e.).

In its points 11 and 12 the State contends that improper jury argument by counsel for defendants was reasonably calculated to, and probably did, cause an excessive verdict and improper judgment. In complaining of a portion of the closing jury argument of defendants’ counsel, the State argues that the effect of the argument was to ask the jurors to place themselves in the position of the landowners. The portion quoted in the State’s brief is as follows:

Ragsdale to Terrel is three hundred dollars, and so if you were the landowner— If you were in his shape, or a witness, or whatever, or a lawyer who does this kind of work for a landowner. I’m not ashamed. I don’t mind representing Mr. Lackey here, it’s a pleasure. So if you were doing that and the landowner—

At this point the State objected. The trial court sustained the objection and instructed the jury to disregard the argument. Defendants’ counsel apologized.

We do not think the remarks of defendants’ counsel can, unless considered out of context, fairly be classified as an appeal to the jurors to place themselves in the position of the landowners in the sense that it asks the jurors to treat the Lackeys as the jurors would like to be treated if their land had been taken.

During the trial, expert witnesses discussed values assessed in sales of comparable land in the area. While addressing the jury, counsel for the State took the position that only one of the sales could be regarded as a truly comparable sale. That portion of the argument by defense counsel quoted above is, when read in context, a defense of their use as a comparable sale — a sale which the State’s attorney had described as not being comparable. It was a legitimate answer to the State’s argument that the sale in question could not fairly be considered a comparable sale. In effect, by including lawyers and witnesses, counsel was merely underscoring his argument to the effect that the sale in question was properly to be considered as a comparable sale — a sale on which a landowner, lawyer or witness could properly rely as a guide to the value of the remainder before and after the taking. After the court had sustained the State’s objection, defendants’ counsel continued referring to the sale in question, concluding, “So I think we are entitled to talk about that case.”

In any event, as already noted, the trial court sustained the State’s objection and instructed the jury not to consider the remarks of counsel. Our Supreme Court has held that an argument which constitutes

a direct appeal to the jury to consider the case from an improper viewpoint, in that its effect is to ask the members of the jury to put themselves in the defendant’s place, [while clearly improper,] . is not of such a nature that its harmful effect could not have been removed, had the trial court sustained the exception thereto offered at the time the argument was made, and properly instructed the jury not to consider it.

Fambrough v. Wagley, 140 Tex. 577, 585, 169 S.W.2d 478, 482 (1943).

We realize that it is difficult, at best, to reconcile the cases which deal with improper jury argument as a ground for reversal. However, considering the nature of the remarks in question, we believe that the court’s instruction was sufficient to nullify the tendency, if any, of the argument to prejudice the rights of the State.

Considering the testimony, the amount awarded by the jury as severance damages is not so high as to support the conclusion that it was based on bias, prejudice or sympathy rather than on the evidence properly admitted for the jury’s consideration. The defendants’ expert witnesses placed the severance damages at $253,806 (White), $272,844 (Lewis), and $225,390 (Powell). One of the State’s appraisers estimated the severance damages to be $22,-471, while the others estimated that the remainder was damaged in the sum of $20,-925. The jury awarded severance damages of $86,844.

The amount awarded by the jury exceeded the high estimate of the State by $64,373 while being $66,919 in excess of the State’s low estimate. However, the jury award was $186,000 under the defendants’ highest estimate and $138,500 under the defendants’ lowest estimate. There is no basis for holding that the jury was so swayed by bias, prejudice or sympathy that they rejected the State’s testimony and accepted at face value the testimony of defendants’ witnesses.

The other portion of the jury argument of which the State complains was as follows:

All the witnesses pretty well agree that this ranch is worth a lot of money, but what happens. [The State’s value witnesses] come in and try to lowball the Lackey family by saying, yeah, we’re going to build a six foot high—

At this point the court sustained the State’s objection to counsel’s “lowball” remarks and instructed the jury not to consider them. Defendants’ counsel apologized. We do not find the term “lowball” in any dictionary available to this court. Assuming that “lowball” is the opposite of “highball,” as that latter term is defined in the dictionary, furnishes no guidance whatever. In its brief the State asserts that the “lowball” argument meant that the State “was attempting to pay less than market value and, therefore, cheat the landowners.”

Assuming that the members of the jury gave the same meaning to “lowball” as does counsel for the State, the verdict, as pointed out above, cannot be considered so excessive as to indicate that the jury disregarded the trial judge’s admonition or that they were so emotionally aroused by the argument that they allowed their passions to sway their judgment and reached a verdict based on considerations other than the evidence.

The State also contends that the cumulative effect of the “errors” of which it complains is such that justice demands a new trial be granted. We disagree.

The judgment of the trial court is affirmed.


author: RALEIGH BROWN, Justice.

text:
    A. E. MOORE, Appellant, v. TEXAS BANK AND TRUST COMPANY, Appellee.
    No. 5205.
    Court of Civil Appeals of Texas, Eastland.
    Jan. 18, 1979.
    Rehearing Denied Feb. 15, 1979.

      Ross H. Hemphill, Ray, Anderson, Shields, Trotti & Hemphill, Dallas, for appellant.
    Charles J. Winikates, Dallas, for appellee.
   RALEIGH BROWN, Justice.

Texas Bank and Trust Company of Dallas, Administrator with the will annexed of the Estate of Maggie Dove Littell, Deceased, sued A. E. Moore to recover certain money and property in his possession allegedly belonging to the Maggie Dove Lit-tell Estate. Texas Bank and Trust Company recovered judgment against Moore for $39,523.08 plus ten percent interest per an-num from July 12, 1972, and exemplary damages of $5,000 plus nine percent interest per annum from August 4,1977. James Hartnett was awarded, as a fee and reimbursement of expenses for serving as Master in Chancery, the sum of $8,236.77 taxed as costs of court against Moore. Moore appeals. We reverse and remand in part and reverse and render in part and affirm in part.

Texas Bank and Trust concedes its case is founded on the theory of a breach of duty by a fiduciary. The primary thrust of Moore’s appeal is directed to the court’s failure to submit the ultimate controlling issues.

During the last four years of her life, the decedent, Mrs. Littell, was bedridden in a rest home in Dallas, afflicted by infirmities of old age. During this period, Moore, nephew of decedent, made frequent trips from his home in Texarkana to visit his aunt. He looked after her needs and handled her money affairs.

Texas Bank alleged that Moore placed himself in a position of trust and confidence in his relationship with the deceased to the extent that, during this period, his relationship to her was that of a fiduciary. Moore allegedly breached the relationship in two respects. First, Texas Bank contends that he breached the alleged relationship by procuring the transfer of five bank accounts held in the name of Mrs. Littell into joint accounts held in the names of Mrs. Littell and defendant, A. E. Moore. The second alleged breach occurred when Moore came into possession of certain jewelry owned by decedent and converted it to his own use. Moore claimed as gifts the jewelry in his possession and the funds withdrawn by him from two survivorship accounts.

The court found that three of the accounts were not survivorship accounts and an instructed verdict was rendered in part, awarding the administrator, Texas Bank, judgment for the amount withdrawn from the three accounts subsequent to the decedent’s death, and for the value of the jewelry. Moore does not contest the portion of the instructed verdict which awards the money withdrawn from the three accounts to the Texas Bank. He does challenge that portion of the instructed verdict awarding the value of the jewelry to Texas Bank. Moore claimed the jewelry as a gift and contends the court erred in not submitting an issue making such an inquiry.

The case was submitted to the jury to determine the ownership of funds withdrawn from the two joint survivorship accounts held in the names of Mrs. Littell and defendant, A. E. Moore, “as joint tenants with rights of survivorship, and not as tenants in common.” Moore withdrew the funds from these accounts after the death of Mrs. Littell claiming same under the gift theory.

The following issues were submitted and answered:

SPECIAL ISSUE NUMBER 1
Do you find from a preponderance of the evidence that Maggie Dove Littell intended on August 13,1969, when a joint account was opened at Dallas Federal Savings and Loan Association with A. E. Moore to make a gift of said account to A. E. Moore at her death?
You will answer “She did so intend to make a gift” OR
“She did not so intend to make a gift.”
ANSWER: She did not so intend to make a gift
SPECIAL ISSUE NUMBER 2
Do you find from a preponderance of the evidence that Maggie Dove Littell intended on April 30, 1970, when a joint account was opened at Metropolitan Federal Savings and Loan Association with A. E. Moore to make a gift of said account to A. E. Moore at her death?
You will answer “She did so intend to make a gift” OR
“She did not so intend to make a gift.”
ANSWER: She did not so intend to make a gift

Moore objected at trial, and complains on appeal, the ultimate and controlling issues were not submitted.

Texas Bank concedes that its theory of recovery was breach of fiduciary relationship. It further concedes, and we agree, that the issues submitted regarding Mrs. Littell’s donative intent are evidentia-ry, and not ultimate and controlling issues under the theory of recovery of breach of fiduciary relationship.

On receipt of a gift by a fiduciary from the principal of a fiduciary or confidential relationship, there are two basic issues involved when that gift is sought to be set aside under the theory of breach of such a relationship. The first issue involves the existence of the relationship and the second concerns its breach. See Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257 (Tex.1974).

Neither of the ultimate and controlling issues were submitted in the case at bar. Texas Bank maintains that the first issue— the existence of the relationship—was established as a matter of law, and that the second issue—breach of the relationship— was a defensive issue and because Moore did not properly request the issue, he cannot complain of the court’s failure to submit the ultimate and controlling issue regarding breach.

The trial court found that the first element of Texas Bank’s theory of recovery was established as a matter of law from the Master’s Report. The Master’s Report was of an investigatory nature only, and made no finding regarding the existence or nonexistence of a fiduciary relationship. Moore objected to the order appointing the Master, and to the Master’s Report as filed. The trial court, in its order approving the report, found that a fiduciary relationship existed as a matter of law. The order recites that the finding was based upon the Master’s Report. Moore filed an amended answer specifically denying that he was acting in a fiduciary capacity to Mrs. Littell.

Without passing on the issue, we believe that the trial court did not have the authority to find that a fiduciary relationship existed as a matter of law based solely upon the Master’s Report. Such finding by the court neither “confirms,” “modifies,” nor “corrects” the report as permitted in Rule 171, T.R.C.P. Assuming that the court’s finding was a proper exercise of its authority to “modify” the report, Moore’s amended answer was probably sufficient objection to the order to entitle him to a jury submission of the issue concerning the existence of a fiduciary relationship. See generally San Jacinto Oil Company v. Culberson, 100 Tex. 462, 101 S.W. 197 (1907); Miller v. Cercy, 386 S.W.2d 627 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.); 3 McDonald, Texas Civil Practice § 10.17.1-3 (1970); 34 Texas L.Rev. 326 (1955). Regardless, the case must be reversed because Texas Bank failed to request the ultimate and controlling issue concerning breach. The same result is reached even if a fiduciary relationship was established as a matter of law by evidence admitted at trial.

When a fiduciary receives a gift from the principal of a fiduciary or confidential relationship, the ultimate and controlling issue determining whether receipt of the gift was a breach of the established relationship, should basically inquire whether the gift was ultimately fair and equitable to the principal of the relationship. See Stephens County Museum, Inc. v. Swenson, supra; Pace v. McEwen, 574 S.W.2d 792 (Tex.Civ.App.—El Paso, 1978); Cf. Archer v. Griffith, 390 S.W.2d 735 (Tex.1964); International Banker’s Life Insurance Company v. Holloway, 368 S.W.2d 567 (Tex.1963); Allen v. Great Liberty Life Insurance Company, 522 S.W.2d 247 (Tex.Civ.App.—Eastland 1975, writ ref'd n. r. e.).

Once a fiduciary or confidential relationship is established, a presumption arises that a gift from the principal to the fiduciary is unfair and invalid. Stephens County Museum, Inc. v. Swenson, supra. The effect of the presumption is to place upon the fiduciary the burden of going forward with evidence from which the jury could find the nonexistence of the presumed fact. 1 McCormick & Ray, Texas Law of Evidence § 53 (2d ed. 1956). See Stephens County Museum, Inc. v. Swenson, supra.

If the fiduciary succeeds, a fact issue is presented; if not, an instructed verdict should be rendered against him.

The general rule in Texas is that the sole effect of a presumption is to fix the burden of producing evidence and does not affect the burden of persuasion. 1 McCormick & Ray, § 53, supra. We hold that the fiduciary has the burden of persuasion on the issue of whether the transaction was ultimately fair and equitable. See Archer v. Griffith, supra.

We hold, however, that the issue regarding the breach of a fiduciary or confidential relationship is an element of the plaintiff’s theory of recovery even though the burden of persuasion is on the fiduciary once the existence of the relationship is established. Dillingham v. Lynch, 516 S.W.2d 694 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.). See 3 McDonald, Texas Civil Practice § 12.32.2 (1970). It was incumbent upon the Texas Bank, therefore, to properly request the issue concerning breach. Rule 279, T.R.C.P. The issues submitted were evidentiary and cannot form the basis of a judgment. Ratcliffe v. Ormsby, 298 S.W. 930 (Tex.Civ.App.—Eastland 1927), affirmed, 117 Tex. 242, 1 S.W.2d 1084 (1928); Grubb v. Grubb, 525 S.W.2d 38 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.). The challenged portion of the trial court’s judgment will be reversed.

The court’s error in finding a fiduciary relationship as a matter of law, based solely upon the Master’s Report, is some justification for Texas Bank's failure to request submission of the issue. Rule 279, T.R.C.P. We have carefully examined the entire record and hold that justice would be better served by remanding, rather than rendering, that portion of the cause awarding Texas Bank the amounts withdrawn from Dallas Federal Savings and Loan Association and Metropolitan Federal Savings and Loan Association and the value of the jewelry. Rule 434, T.R.C.P. We further reverse and remand that portion of the judgment awarding exemplary damages to Texas Bank because without a finding of a breach of a fiduciary or confidential relationship no award of exemplary damages is supportable.

Moore objected to the charge at trial, and complains on appeal, that the instruction given in connection with special issues numbers one and two is prejudicial and is a misstatement of the law. We agree.

The instruction was given as follows:

With respect to Special Issues Nos. 1 and 2, you are instructed that such Special Issues are concerned with whether or not Maggie Dove Littell intended to make gifts. For her to have formed such intent, it must be reasonable and all proper information must have been given to her. When a fiduciary is benefited by the transaction, the law presumes it was unfair. Additionally, if the transaction occurs with a person of weak mind arising from age or sickness or any other cause, unfairness will be presumed because of the possibility that external pressure caused the collapse of the Deceased’s own will or misrepresentation or lack of proper disclosure (Fraud). Therefore, in a transaction with a person of weak mind, there is a presumption of fraud or misrepresentation. In these circumstances, the person benefited must show that the transaction was fair and not procured by fraud.

Moore attacks the portion of the instruction beginning “(additionally if the transaction occurs with a person of weak mind . ,” and continuing to the end of the instruction. Texas Bank contends that such portion of the instruction is a correct statement of the law in accordance with Goar v. Thompson, 19 Tex.Civ.App. 330, 47 S.W. 61 (1898, no writ). We disagree.

Texas Bank’s theory of recovery was breach of a fiduciary relationship. The only applicable presumption is that which arises once a fiduciary relationship is established, and it is shown that defendant benefited from the transaction with the principal of the relationship. See Stephens County Museum, Inc. v. Swenson, supra.

Evidence that one person to a transaction was weak-minded does not alone create a presumption of undue influence, fraud or misrepresentation. See Estate of Woods, 542 S.W.2d 845 (Tex.1976); Dulak v. Dulak, 513 S.W.2d 205 (Tex.1974); Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963).

Moore argues that the court erred in ordering the appointment of a Master in Chancery. We agree.

The court in Bell v. Bell, 540 S.W.2d 432 (Tex.Civ.App.—Houston (1st Dist.) 1976, no writ) considering the appropriateness of the appointment of a Master in Chancery said:

The trial court is not authorized under Texas Rule 171 to appoint a master in chancery in other than exceptional cases and not then except for good cause. Creglar v. Hyde, 280 S.W.2d 783 (Tex.Civ.App.1955, writ ref. n. r. e.).

Even though the parties in Bell disputed the character of certain property and disputed the value of the husband’s business, the court held that such facts were not sufficient to justify appointment of a Master in Chancery. The court held that the trial court abused its discretion in the appointment because the case was not “exceptional” as contemplated by Rule 171, T.R.C.P. See also Poston v. Poston, 572 S.W.2d 800 (Tex.Civ.App.—Houston (14th Dist.) 1978, no writ).

In the case at bar, with the facts even less complex than in Bell and over the objection of Moore, the court appointed a Master in Chancery with the following designated powers and duties:

1. Determine the money and property which was owned by the Decedent, Maggie Dove Littell, or to which she was entitled since January 1, 1967.
2. Show the amount of money that was expended for the use and benefit of the Decedent, Maggie Dove Littell, or to which she was entitled since January 1, 1967.
3. Show what money and property that was owned by the Decedent, Maggie Dove Littell, or to which she was entitled; was received by the Defendant, A. E. Moore; and what he did with it since January 1, 1967.

There were ample records available to the bank administrator to make such determinations without the necessity of a Master in Chancery. The primary dispute for resolution is the proper claimant to such money and property, not the amount. This is neither an exceptional case nor is good cause shown that would justify the appointment of a Master in Chancery. The trial court, therefore, abused its discretion and erred in appointing a Master in Chancery and in the taxing of the Master’s fees and expenses against Moore. We sever such portion of the judgment and reverse and render same.

We affirm the uncontested portion of the judgment awarding to Texas Bank the amounts withdrawn from the accounts in Farm and Home Savings and Loan Association, First National Bank in Dallas, and First State National Bank in Texarkana. We reverse and remand that portion of the judgment awarding to Texas Bank the amounts withdrawn from Dallas Federal Savings and Loan Association and Metropolitan Federal Savings and Loan Association, and the portion of the judgment awarding the value of the jewelry to Texas Bank. We further reverse and remand that portion of the judgment awarding exemplary damages to Texas Bank. We reverse and render that portion of the judgment which taxes the fees and expenses for the Master in Chancery against Moore.

      . We note that there is a technical distinction between a “fiduciary relationship” and a “confidential relationship,” although the terms are frequently used interchangeably. Peckham v. Johnson, 98 S.W.2d 408 (Tex.Civ.App.—Forth Worth 1936), modifíed and affirmed, 120 S.W.2d 786 (1938); Bogert, Trusts & Trustees § 482 (2d ed. 1978). The former applies to “legal relations between parties created by law or by the nature of the contract between them where equity implies confidence and reliance.” Peckman v. Johnson, supra. The latter covers “every form of relation between parties wherein confidence is reposed by one in another, and he relies and acts upon the representations of the other and is guilty of no derelictions on his own part.” Id. See Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Miller v. Huebner, 474 S.W.2d 587 (Tex.Civ.App.—Houston (14th Dist.) 1972, writ ref'd n. r. e.); Holland v. Lesesne, 350 S.W.2d 859 (Tex.Civ.App.—San Antonio 1961, writ ref'd n. r. e.). In the case at bar, we are considering a “confidential” rather than a “fiduciary” relationship.


author: YOUNG, Justice.

text:
    Julia Burley THORNLOW, Appellant, v. Norman Henry THORNLOW, Appellee.
    No. 1412.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 25, 1979.
    Rehearing Denied Feb. 15, 1979.

      A. C. Nelson, Brownsville, Susan R. Williams, Tex. Rural Legal Aid, Inc., Weslaco, for appellant.
    E. Dale Robertson, Thomas A. Harwood, Joe Walsh & Associates, Brownsville, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from the denial of a Rule 120a, T.R.C.P., special appearance in an interstate divorce and child custody suit.

Appellant, Julia Burley Thornlow, and appellee, Norman Henry Thornlow, were married on August 22, 1970. They had three children, none of whom were born in Texas. For some period of time prior to May of 1977 the parties resided together with their children in Tucson, Arizona. Ap-pellee separated from appellant and the children in May of 1977 after appellant told the appellee to leave. He then moved to Brownsville, Texas, and there established his domicile. Appellee apparently offered to send support money to appellant but appellant’s boyfriend said that he would support appellant and the children.

Later, during Christmas of 1977, appellee visited the appellant and the children, and while there bought food, presents and necessities for the family. On February 14, 1978, appellee returned to Arizona again and made an agreement with his wife that if she would allow him to take the children to Brownsville he would return them to Tucson in two weeks. The appellee never intended to return the children because appellant was subjecting them to unsuitable living conditions and was failing to properly care for them. Whereupon appellee transported the children to Brownsville, and on February 22, 1978, he filed a petition for divorce alleging an insupportable marriage and adultery. He also requested custody of the three children. Appellant was served with process in Arizona. She had never resided in Texas.

On April 20, 1978, appellant filed a petition in Arizona for divorce and custody of the children. At the time of the trial herein, that proceeding was still pending.

The hearing on the special appearance motion and the trial were held on May 12, 1978. The appellee, the only witness called to testify, stated that the children, then ages 5, 3 and 1, continued to reside with him in Brownsville, Texas; that he had established the children’s domicile in Texas; and that since he had left Tucson with the children in February, he had not heard from the appellant.

At the hearing the trial court heard only argument on appellant’s special appearance motion but received evidence on the divorce and custody suit. The court granted the divorce and appointed appellee managing conservator and appellant possessory conservator with reasonable visitation rights regarding the children. The court also found that no community property other than personal effects had been accumulated by the parties. It decreed that the personal effects should be awarded to the party having possession of such property.

Appellant brings two points of error alleging that the trial court did not have personal jurisdiction over the appellant or jurisdiction over the subject matter of the suit.

In contesting the court’s jurisdiction under Rule 120a, T.R.C.P., the appellant had the burden of pleading and proving that she was not amenable to the process issued by the courts of Texas. Scott v. Scott, 554 S.W.2d 274, 277 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.).

In regard to this burden, appellant appeared at the trial only by attorney and her attorney did not present any witnesses. The appellee testified, however, and we must evaluate his evidence in connection with the appellant’s burden. Hoppenfeld v. Crook, supra.

Findings of fact and conclusions of law were neither requested nor filed. Thus all questions of fact are presumed found in support of the judgment and the judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1978).

The facts and argument presented by the case at bar are closely similar to those in Hilt v. Kirkpatrick, 538 S.W.2d 849 (Tex.Civ.App.—Waco 1976, no writ). In Hilt, the parties were divorced in Colorado in 1968. The court granted custody of their two children to the wife and certain visitation rights to the husband. In 1969 the wife moved to Texas with the children and established their domicile. In 1975 the wife sued in Texas to modify the Colorado custody decree; i. e., to further reduce the visitation rights of the father. The father who apparently still lived in Colorado filed a special appearance under Rule 120a, T.R. C.P. The trial court denied the special appearance and granted the wife’s request. On appeal, however, the Court of Civil Appeals held that the special appearance should have been sustained under the principles of May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) and Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975). But the court went on to hold that the State’s interest in children domiciled and physically present in the State gave the Texas court sufficient jurisdiction to adjudicate custody. As a result, the court sustained the special appearance, dismissed the appellant from the case and affirmed the orders of the trial court.

We find the facts in our case compellingly similar. Just as in Hilt, the appellant herein has never resided in Texas either by herself or with her husband, and none of the children were born in Texas. We too find an absence of the requisite “minimum contacts” with the State of Texas with respect to the custody of the children to satisfy traditional notions of fair play and substantial justice. Furthermore, we find no additional grounds which are contained in the Texas parent-child long-arm statute, Tex.Fam.Code Ann. § 11.051 (Supp.1978), which can confer personal jurisdiction over the out-of-state appellant. We reach this conclusion in spite of the fact that the appellant did give the children permission to come to Texas for a two-week visit. We hold this was insufficient to invoke subdivision (2) of the long-arm statute. See Sampson, Jurisdiction in Divorce and Conservatorship Suits, 8 Tex.Tech.L.Rev. 159, 200-205 (1976). The appellant’s special appearance (point of error 2) should be sustained.

We do not agree, though, that the trial court lacked subject matter jurisdiction. It is well settled that a Texas court may assert jurisdiction over the custody of a child who is domiciled in the state or one who is physically present in the state. Ex Parte Birmingham, 150 Tex. 595, 244 S.W.2d 977 (1952); Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876 (1948); Davis v. Spraggins, 449 S.W.2d 80 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.). In this connection, and similar to the Hilt determination, we find two bases which justify the court’s exercising jurisdiction in the instant case.

First, the evidence supports the trial court’s implied finding that the children herein were domiciled in Texas with the appellee at the time the suit was instituted; that Texas had a real interest in the children’s welfare; and that this alone conferred subject matter jurisdiction upon the court. Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551, 556 (1946); Hilt v. Kirkpatrick, supra. This determination is based upon the testimony that the parties were not divorced and no divorce suit had been filed at the time appellee brought the children to Texas. Accordingly, appellee’s right to custody of the children was equal to that of the appellant. Minjarez v. Minjarez, 495 S.W.2d 630 (Tex.Civ.App.—Amarillo 1973, no writ), Tex.Fam.Code Ann. § 12.04 (1975). As a rightful custodian, he was entitled to transport the children to Texas and to establish their domicile in this State. Everson v. Boydston, 377 S.W.2d 117 (Tex.Civ.App.—El Paso 1964, no writ). See also Tex.Fam.Code Ann. § 11.04 (1975). Moreover, appellant introduced no evidence which would indicate that the children were not domiciled in Texas or that Texas did not have a justifiable interest in the children’s welfare. Compare Everson v. Boydston, supra at 119.

Second, even if the children were not domiciled in Texas, the children’s physical presence before the court would justify the court’s subject matter jurisdiction. This concept also incorporates the broad consideration of the welfare of children and the duty of the state to look after the welfare of the individuals within its borders. In this regard, the children’s best interest is the primary issue. Wicks v. Cox, supra 208 S.W.2d at 878; Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, 190 (1949); Everson v. Boydston, supra. The state in which the child is a resident should exercise jurisdiction if it is in a more or less equally good position as compared to the domiciliary state to determine the child’s best interest and doing so will not prejudice good order or social welfare. Wicks v. Cox, supra 208 S.W.2d at 878.

It is evident from the facts herein that Texas would be justified in invoking its custody jurisdiction for the protection and welfare of the children. It is undisputed that in Tucson the children were living in poor conditions and were not being cared for. We hold these facts sufficient to invoke the trial court’s jurisdiction to insure the welfare of the children. As far as the relative capability of Texas’ courts to decide the children’s best interests is concerned there is no evidence that Arizona would be a better forum for this determination than Texas. The only evidence of the length of the children’s stay in Arizona is contained in the appellee’s pleading. It states only that the youngest child was born in Arizona in March of 1977. Consequently, the children lived in Arizona possibly less than a year, and Arizona might have evidence concerning appellee’s fitness as a father for a period of only two to three months. At the time the appellee filed this suit, he had lived in Brownsville over six months. Furthermore, Texas is better able to evaluate the character and resources of the appellee as well as other local circumstances bearing on the kind of life the children might lead if custody were awarded to the appellee. Compare Wicks v. Cox, supra. Thus, we find Texas is in at least as good a position as Arizona to determine the children’s best interests.

Additionally, we find no serious prejudice to good order in the Texas court’s taking jurisdiction. While we do not condone the use of deception to gain possession of children, the appellee retained an equal right to custody of the children at the time he brought them to Texas. The father’s ruse should not be charged to the detriment of the children, but the Texas court should take jurisdiction to promote the children’s welfare. Compare Wicks v. Cox, supra 208 S.W.2d at 879-880; Dunn v. Tiernan, 284 S.W.2d 754, 758 (Tex.Civ.App.—El Paso 1955, writ ref’d n. r. e.); White v. White, 77 N.H. 26, 86 A. 353 (1913) (cited with approval in Wicks v. Cox, supra 208 S.W.2d at 878). Accordingly, we find the trial court possessed jurisdiction to determine the children’s custody.

Appellant, however, cites several cases, one of which is Bevan v. Bevan, 283 S.W.2d 305 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.), for the proposition that Arizona should be chosen as a better forum to determine custody. We do not agree. These cases are distinguishable, in that they involved situations in which suits involving the custody of the children were pending in foreign courts when the Texas suits were initiated for custody of the children. The rationale underlying Bevan and the other cases was that it would encourage disorderly processes to accept jurisdiction when another court has active jurisdiction. No other court had custody jurisdiction when this suit was filed. Therefore, appellant’s cases do not control.

Appellant also contends the trial court did not have jurisdiction to grant the parties a divorce. We disagree again. The evidence supports the court’s implied finding that the appellee was domiciled in Texas, and even though the spouses were domiciled in different states the Texas court, where suit was filed, had jurisdiction to alter the status of their marriage relationship without “in personam” jurisdiction of the absent spouse. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Dosamantes v. Dosamantes, 500 S.W.2d 233 (Tex.Civ.App.—Texarkana 1973, writ dism’d), see also Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975). In addition, the Texas court possessed jurisdiction to divide the property located in Texas. Fox v. Fox, 559 S.W.2d 407 (Tex.Civ.App.— Austin 1977, no writ). We find no evidence that any of the property awarded to the appellee was outside Texas at the time of the divorce and thus we find no reversible error in the trial court’s division of the property.

Accordingly, appellant’s point one challenging the subject matter jurisdiction of the suit is overruled. Appellant’s point two contesting the personal jurisdiction over the appellant is sustained and the order overruling the special appearance is reversed, and judgment is here rendered dismissing the appellant from this cause. In all other respects the judgment of the trial court is affirmed.


author: ROBINSON, Chief Justice.

text:
    DANIEL BROTHERS, a partnership, Appellant, v. WEST TEXAS EQUIPMENT COMPANY, Appellee.
    No. 8951.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 31, 1979.

      Archer, Archer & Alexander, Dorothy Alexander, Perryton, for appellant.
    James R. Collins, Amarillo, for appellee.
   ROBINSON, Chief Justice.

Plaintiff West Texas Equipment Company sued on a sworn account for the reasonable value of parts and labor for the repair of defendant Daniel Brothers’ farm irrigation motor in Ochiltree County. Defendant appeals from an order overruling its plea of privilege to be sued in Ochiltree County, the county of the partners’ residence. Plaintiff seeks to maintain venue in Potter County under subdivision 5(a) of article 1995, Tex. Rev.Civ.Stat.Ann. (Vernon Supp. 1978-1979). Reversed and remanded.

Subdivision 5(a) of article 1995 provides:

5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.

To maintain venue under this subdivision, the plaintiff must prove the following venue facts: (1) the defendant is a party reached by the statute; (2) the plaintiff’s claim is based on a contract in writing; (3) the contract was entered into by the defendant or one authorized to bind him; and (4) the contract provides for venue by its terms. N. K. Parrish, Inc. v. Navar, 553 S.W.2d 216, 217-18 (Tex.Civ.App.—Amarillo 1977, no writ).

Defendant contends that the evidence is insufficient to show a contract in writing providing for venue in Potter County. Plaintiff contends that an unsigned invoice mailed to defendant after completion of the job is a confirmatory memorandum and that the invoice is a contract in writing within the meaning of subdivision 5(a).

The evidence shows that on several occasions, defendant orally ordered parts and services from plaintiff. After the services were rendered, plaintiff mailed invoices showing the charges made. On the occasion in question defendant placed an oral order with plaintiff for parts and services for his field irrigation motor in Ochiltree County. There was no mention of place of payment. Plaintiff’s field service representative delivered the parts and performed the requested services. After the job was completed, the representative secured defendant’s signature on an acknowledgment of the number of hours that the field representative had worked. Plaintiff does not contend that the instrument acknowledging hours worked is a contract in writing. On completion of the job defendant became obligated to pay a reasonable price for such repairs as were reasonably necessary. Tex. Bus. & Com.Code Ann. § 2.305 (Vernon 1968); Ingram v. D. C. Rachal Ford, Inc., 545 S.W.2d 886, 889 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d w o. j.).

The following week plaintiff prepared and sent invoices to defendant. The invoices contained language reciting that they were due and payable in Amarillo, Potter County, Texas. The invoices were not signed by either plaintiff or defendant.

Where a contract which does not contain a provision for venue has been completed, the seller may not unilaterally enlarge the contract in a later invoice to include a venue provision. This rule was stated in the factually similar case of West Flour Mill, Inc. v. Vance, 430 S.W.2d 232 (Tex.Civ.App.—Tyler 1968, writ dism’d w. o. j.). In West Flour Mill, the buyer telephoned orders for chicks over a period of two years. Seller sent orders confirming the telephone requests and upon delivery defendant signed confirmations of the quantity of chicks delivered. Seller then sent invoices containing a provision: “Payable at Shallowater, Texas.” The court stated:

This invoice is not signed by either of the parties. It is an ex parte statement by appellee that payment is payable in Shal-lowater, Texas. The oral contract for chicks did not contain a venue provision and since neither party signed the invoice, the same was not sufficient to enlarge or alter the oral contract to include a venue provision by a later ex parte statement by one of the parties.

Id. at 235.

Where the oral agreement makes no provision for place of payment, subsequent delivery tickets or invoices will not enlarge or alter the completed contract to include venue provisions and the buyer is under no duty to object to efforts to add to an agreement already in existence. Sherman Foundry v. Mechanics, Inc., 517 S.W.2d 319, 322 (Tex.Civ.App.—Waco 1974, writ dism’d w. o. j.).

Cases cited by plaintiff and holding that an invoice containing a provision for venue is part of the contract between the parties are factually distinguishable from the case before us. For example, in Harrison v. Facade, Inc., 355 S.W.2d 543 (Tex.Civ.App.—Dallas 1962, no writ), there was a written purchase order signed by buyer which requested that the goods be invoiced. In Lufkin Foundry & Machine Co. v. Mixon, 445 S.W.2d 232 (Tex.Civ.App.—Beaumont 1969, no writ), the person requesting repairs made and signed shop orders containing the language “Terms per invoice.”

We have considered the facts before us in light of the foregoing authorities and are of the opinion that the evidence is insufficient to support a finding that there was a contract in writing providing for performance in Potter County. This holding is dis-positive of the appeal. We do not reach defendant’s remaining point of error.

The judgment overruling the plea of privilege is accordingly reversed and the cause remanded to the trial court.