author: McKAY, Justice.

text:
    Robert L. LEWIS, Individually and d/b/a Robert L. Lewis Delivery Service, et al., Appellants, v. Ernest E. YAGGI et al., Appellees.
    No. 1216.
    Court of Civil Appeals of Texas, Tyler.
    June 14, 1979.
    Rehearing Denied July 12, 1979.

      Mike Hatchell, Ramey, Flock, Hutchins, Jeff us, McClendon & Crawford, Jack W. Flock, Tyler, W. B. Fields, Fields, Fields & Hardee, Athens, Luther C. Johnson, (Gdn. ad Litem) Palestine, for appellants.
    Charles B. Guy, Dallas, Don A. Weitinger, Houston, for appellees.
   McKAY, Justice.

This is an appeal in a personal injury suit on the grounds of jury misconduct and a conflict in the jury’s answers to special issues.

In the early morning of July 24, 1974, on a highway about four miles south of Palestine, a van collided with a Continental Trailways bus. Edwin M. Massengale, the driver of the van, was employed by the Robert L. Lewis Delivery Service making bulk delivery of newspapers. Ernest E. Yaggi was the bus driver, on a Houston-to-Texarkana route. Massengale was killed and Yaggi injured (primarily a broken knee) in the accident.

Yaggi and his wife brought suit against the A. H. Belo Corporation; The Dallas Morning News (an unincorporated subsidiary of Belo); Massengale’s estate; Pauline Massengale (decedent’s widow), individually and as community survivor, representative of the estate, and heir; and Julie Massen-gale (daughter of decedent), individually and as heir. Apparently Robert L. Lewis, individually and d/b/a Robert L. Lewis Delivery Service and Robert L. Lewis Transportation Company, was later added as a defendant. Yaggi alleged various acts of negligence by Massengale and damages totaling $40,000.

The Massengale defendants filed a cross-action against Yaggi and added Continental as a third-party defendant, alleging various acts of negligence by Yaggi and claiming damages totaling $404,558.75. Continental filed its cross-action against all of the defendants, alleging damages to its bus, including loss of use, in the amount of $24,-786.35. All of the defendants’ answers alleged contributory negligence on the part of Yaggi.

All of the defendants entered pleas of privilege but only those of Belo and The Dallas Morning News were sustained. The cause as to them was severed and transferred to Dallas County.

Hartford Insurance Company intervened to recoup workmen’s compensation benefits ($8,748.27) paid to Yaggi. Texas Employers Insurance Association intervened to recoup benefits ($9,131.00) paid for Massengale’s death.

Following a stipulation by the defendants that any negligence on the part of Massen-gale was to be imputed to the Robert L. Lewis Delivery Service, Yaggi and Continental took a nonsuit in their actions against the Massengale defendants.

Trial was had before a jury which found Massengale negligent in failing to keep a proper lookout, failing to apply his brakes, and changing lanes when it was unsafe to do so. With regard to Yaggi, the jury found: he did not fail to keep a proper lookout; he did not fail to apply his brakes; he did fail to avoid the collision but this was not negligence; he did drive in excess of 55 mph but this was not negligence; he did not drive in the left lane; he did drive after consuming alcoholic beverages (apparently he had had two beers) but this was not negligence. It was further found that the percentage of negligence attributable to Massengale was 70% and to Yaggi, 30%. Yaggi’s damages were found to be $12,175 and the Massengales’, $76,100.

The trial court entered judgment for Continental and Yaggi, jointly and severally, against Lewis for $12,175.00; for Continental against Lewis for $15,211.35 (amount stipulated as damages to the bus); that the Massengales and Texas Employers take nothing; and for Julie Massengale’s guardian ad litem against Lewis for $1,500 in attorney’s fees. An amended motion for new trial, which asserted jury misconduct as well as attacking the findings of the jury, was overruled.

The Massengales, Lewis, and Texas Employers appeal, bringing five points of error. The first four concern alleged jury misconduct. The jury foreman allegedly was told, by another venireman, during voir dire, that Mrs. Massengale had refused a settlement offer of $70,000. The foreman then allegedly failed to reveal this when asked if he knew anything about the case, and informed at least one other juror of this during deliberations. The information allegedly was ultimately received by several jurors. Further, statements were said to have been made in the jury room that Mrs. Massengale would probably remarry and would not need the money she had prayed for, and that any recovery she might receive would be divided between her attorneys. Point one eomplains of error by the trial court in overruling the motion for new trial because the jury was probably caused to return its verdict due to the aforementioned alleged acts of misconduct. Point two asserts error in overruling the motion because the foreman failed to reveal that he had received information about the case before being sworn in as a juror. The third point states that any implied finding that the misconduct did not occur at a time when it could be harmful is against the great weight and preponderance of the evidence. Point four complains of error in failing to sustain the motion because the cumulative effect of the alleged misconduct probably caused the rendition of an improper verdict. Appellees reply that it was disputed as to who among the jurors heard the settlement offer statement, when it was made, and whether there was any adverse effect on appellants; appellees also claim the statements concerning remarriage and attorney’s fees had no effect on the deliberations, and that the foreman’s receiving information regarding the settlement offer did not affect his decision and did not harm appellants. It is further argued by appel-lees that it must be presumed, in the absence of express findings, that the trial court found all controverted facts in favor of appellees in overruling the motion for new trial.

It will be helpful at this point to detail the testimony given before the trial court at the hearing on appellant’s motion for new trial. Four of the twelve jurors testified. The first to testify was Mrs. Elizabeth Beard, who was called by appellants. She testified that after the jury had gone to the jury room for their deliberations, Olan Campbell was elected foreman; that before any deliberations had commenced the foreman made a statement that Mrs. Massen-gale had been offered $70,000 and had refused it; that that statement was made before any questions had been answered, and that it was made only one time; and that the statement was made loud enough so that any person with ordinary hearing capabilities could have heard it. Mrs. Beard further testified that shortly thereafter the jury stood ten-to-two in favor of the bus company and that later those two voted with the other ten so that the verdict returned to the trial judge was unanimous. Mrs. Beard’s testimony continued to the effect that a lady juror said that the money (apparently referring to any recovery by Mrs. Massengale) would be divided between Luther Johnston and Boone Fields (two of Mrs. Massengale’s attorneys), and that the same lady said that Mrs. Massengale would probably marry again and “She wouldn’t need the money all that much.” On cross-examination, Mrs. Beard reiterated that Campbell’s statement concerning the settlement offer had been made before the jury began considering the special issues. She also testified that it was she and one other male juror who voted initially to place the liability on Yaggi and the bus company; that it appeared to her that the ten jurors wanted to put all the blame on Massengale throughout the course of the deliberations and that she and the other man “just decided to go” with the majority.

The second witness called by appellants was Mrs. Melinda Bridges. She testified that the foreman, during the deliberations, “said that she [Mrs. Massengale] had been offered a settlement which that is what we all figured she had been done [sic]”; that she did not recall how much money was offered (after refreshing her memory from her affidavit, she stated that the amount was $70,000). On cross-examination Mrs. Bridges testified that the first thing that was done during the deliberations wets the election of the foreman and that the next thing that happened was that the foreman read the charge aloud and that as he came to the questions the jury voted on them; that there had been no discussion prior to the foreman’s reading of the charge; that in response to the first question the jurors voted ten to two that Massengale was at fault and that up to that point she didn’t believe there had been any discussion about the settlement offer; that she didn’t know when the statement concerning the settlement offer had been made, but she stated, “I will say it wasn’t at the beginning. I don’t feel like it was, it was an innocent statement anyway.” She later testified again that she didn’t know when the statement was made, but that some of the special issues (she could not recall how many) had been voted on and answered when the statement was made. In response to the question, “After this statement was made, at whatever point it was made, did any change any of those questions that had already been answered? [sic]” she answered, “No.” On redirect examination, Mrs. Bridges again testified that Campbell’s statement was not made at the beginning of the deliberations, and on recross-examination she testified that no one changed his vote after the statement was made. Then, on redirect examination, she stated that two jurors did change their votes at some time during the day.

Appellees’ first witness was Durwood Pearson, who testified that the election of the foreman was the first thing done during the deliberations and that then the jury looked at the pictures again and the foreman read the questions and the jury answered them. He could not recall any statement being made about a settlement offer by the bus company. Pearson also testified that at no time were there more than two people who voted that the accident was not the fault of Massengale; that the jury took a recess for lunch and completed their deliberations twenty or thirty minutes after the lunch recess; and that some questions near the end of the charge remained to be answered after lunch. On cross-examination, Pearson answered that during the voir dire of the jury panel, he did not hear Campbell say to any of the attorneys that he (Campbell) had heard of the case or knew anything about the case; and that he could not remember when the first issue was answered.

Finally, Oían D. Campbell, the foreman of the jury, was called by appellees and testified that there was no discussion before he began reading the charge; that as he read - through the charge the jury would answer each question; that “When we got to the money, they said let’s come back to it,” and that all the previous questions had been answered at that time. Campbell’s testimony continued that no one with Continental gave him any outside information concerning any settlement negotiations; that he heard about the settlement offer from a member of the jury panel sitting next to him during the voir dire examination; that “when we got to the money,” Mrs. Neiland, a juror, asked, “How are we going to decide to pay anybody any money when we decide they are not guilty?” and that then he whispered in Mrs. Neiland’s ear that the bus company had offered a settlement; that “She was free to tell anybody else. But I did not tell the rest of them. She did.” In response to questions on cross-examination, Campbell testified that during the voir dire examination he did not indicate that he knew anything about the case; that he got the statement concerning the settlement offer, before the questioning, from another member of the jury panel who was later excused. In answer to the question, “Why did you not divulge to the Court and to the lawyers you had heard that?” Campbell answered, “Because he didn’t convince me of nothing. That’s hearsay.” Campbell further testified that he made a statement in the jury room that “I had heard that the bus company had offered a settlement of seventy-five thousand dollars”; that he did not make the statement that Mrs. Massengale had turned down the offered settlement; that only Mrs. Neiland had heard his statement; that Mrs. Neiland repeated the statement (he thought she was speaking to Mrs. Bridges) but that most of the other jurors did not hear it. Campbell also testified that something was said in the jury room concerning whether Mrs. Massengale would marry again, but that “That’s just a bunch of bunk”; that he did not know when that was said or who said it. With regard to a statement that there was no use giving Mrs. Massengale any money because her attorneys would get most of it, Campbell could not recall its being made.

Rule 327, T.R.C.P., provides in pertinent part:

“Where the ground of the motion [for new trial] is misconduct of the jury . ., or that a juror gave an erroneous or incorrect answer on voir dire examination, the court shall hear evidence thereof from the jury or others in open court, and may grant a new trial if such misconduct proved ... or the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.”

Thus, a party seeking a new trial because of alleged jury misconduct has the burden of establishing to the satisfaction of the court that the misconduct occurred, that it was material, and from the evidence on the hearing of the motion for new trial and the trial of the cause and from the record as a whole, that it was calculated to and probably did result in harm. Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.1969), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1969); Baucum v. Statewide Hot Shot, 550 S.W.2d 156, 159 (Tex.Civ.App. —Corpus Christi 1977, writ ref’d n. r. e.); Kendall v. Southwestern Public Service Company, 336 S.W.2d 770, 775 (Tex.Civ.App. — Amarillo 1960, no writ). In the instant case, no findings of fact nor conclusions of law were requested by the parties or made by the trial court.

We shall first address foreman Campbell’s failure to divulge on the voir dire examination that he had heard of the purported settlement offer by Continental to Mrs. Massengale. Appellants have not brought to this court as part of the record on appeal a statement of facts of the voir dire examination of the jury panel; thus, we are unable to determine precisely what question or questions pertinent to this matter were put to the panel. Campbell testified that he heard of the purported settlement offer from another member of the jury panel prior to the questioning. On cross-examination he was asked,

“Q You recall my asking and the other lawyers too, asking the jury panel whether they knew anything about the facts, don’t you, or words to that effect?
“A Well, facts . . .
“Q Or what purported to be the facts.
“A Yeah.
“Q And you did not indicate, did you, that you knew anything about the case on that morning?
“A Right.
“Q Why did you not divulge to the Court and to the lawyers you had heard that?
“A Because he didn’t convince me of nothing. That’s hearsay.”

Article 2134, V.T.C.S., provides, “Any person who has a bias or prejudice in favor of or against either of the parties” shall be disqualified to serve as a juror in a particular case. The trial court, by overruling the motion for new trial, impliedly found that prejudice did not exist and that the juror was not disqualified. The Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.1963); Kennbrew v. Levias, 406 S.W.2d 507, 509 (Tex.Civ.App. — Beaumont 1966, writ ref’d n. r. e.). In view of this implied finding, we must consider the evidence in the light most favorable to upholding that ruling. Kennbrew v. Levias, supra; O’Day v. Sakowitz Bros., 462 S.W.2d 119, 123 (Tex.Civ.App. — Houston [1st Dist.] 1970, writ ref’d n. r. e.). The questions whether a juror is prejudiced and concealed that fact are primarily within the sound discretion of the trial court, and its action in denying a motion for new trial based upon juror misconduct will not be revised where it does not clearly appear that the rights of the parties have beeh disregarded. El Paso Electric Railway Co. v. Gonzales, 207 S.W. 162 (Tex.Civ.App. — El Paso 1918, no writ); see also Zimmerman v. Gianelloni, 206 S.W.2d 843, 846 (Tex.Civ.App. — Beaumont 1947, no writ); Ratcliff v. Bruce, 423 S.W.2d 614, 616 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n. r. e.), cert. denied, 393 U.S. 848, 89 S.Ct. 134, 21 L.Ed.2d 118 (1968); City of Hawkins v. E. B. Germany and Sons, 425 S.W.2d 23, 26 (Tex.Civ.App. — Tyler 1968, writ ref’d n. r. e.); Erwin v. Consolvo, 521 S.W.2d 643, 646-7 (Tex.Civ.App. — Fort Worth 1975, no writ).

Appellants argue that a juror who has received any information about a case prior to the trial thereof is necessarily biased or prejudiced thereby. We do not agree that this is the correct rule. The burden is on the party claiming that a member of the jury failed to reveal his bias or prejudice on voir dire examination to show that such failure to affirmatively answer general questions probably resulted in injury to said party. Rule 327, T.R.C.P.; Tudor v. Tudor, 311 S.W.2d 733, 736 (Tex.Civ.App. — Amarillo 1958), writ refused (with opinion indicating only error of law concerned another point not at issue here), 158 Tex. 559, 314 S.W.2d 793 (1958). Furthermore, it has been said that general questions propounded to the jury panel as a whole are usually a poor predicate for a later claim of misconduct by a juror in giving an erroneous or incorrect answer on voir dire examination. Barron v. State, 378 S.W.2d 144, 146 (Tex.Civ.App. — San Antonio 1964, no writ).

Appellants cite Dallas Railway & Terminal Co. v. Kurth, 247 S.W.2d 930 (Tex.Civ.App. — Dallas 1952, writ ref’d n. r. e.), and Texas Employers’ Insurance Ass’n Wade, 197 S.W.2d 203 (Tex.Civ.App. — Galveston 1946, writ ref’d n. r. e.), which hold generally that where there is uncertainty as to the effect of the withheld information on the mind of the juror as to how the undisclosed information might affect his mind, a new trial should be granted. Kurth, supra at 932; Wade, supra at 210. This rule, however, was clearly abrogated by our Supreme Court in Childers v. Texas Employers’ Insurance Ass’n, 154 Tex. 88, 273 S.W .2d 587, 588 (1954). In Thompson v. Quarles, 297 S.W.2d 321, 326 (Tex.Civ.App. — Galveston 1956, writ ref’d n. r. e.), the court said:

“We are governed by Childers v. Texas Employers’ Insurance Association, 154 Tex. 88, 273 S.W.2d 587, 588, departing from the contrasting rule announced in Texas Employers' Ins. Ass'n v. Wade, Tex.Civ.App., 197 S.W.2d 203; Traders & General Ins. Co. v. Cossman, Tex.Civ.App., 212 S.W.2d 865; and Dallas Ry. & Terminal Co. v. Kurth, Tex.Civ.App., 247 S.W.2d 930, and holding that under Rules 327, 434 and 503, T.R.C.P., ‘The failure of the juror on his voir dire examination to disclose information that he had suffered previous injuries is not the test . . ., unless the evidence shows that he concealed the fact of previous injury . ., and that such action resulted in probable injury. . .' (Emphasis supplied.)”

See Houston Belt & Terminal Railway v. Burmester, 309 S.W.2d 271, 274 (Tex.Civ.App. — Houston 1957, writ ref’d n. r. e.); Southern Truck Leasing Co. v. Manieri, 325 S.W.2d 912, 915 (Tex.Civ.App. — Houston 1959, writ ref’d n. r. e.); Missouri Pacific Railroad Co. v. Cunningham, 515 S.W.2d 678, 685 (Tex.Civ.App. — San Antonio 1974, no writ). As the court stated in the last-cited case, “In addition, the amendment of Rule 327, T.R.C.P., to specifically provide that one seeking a new trial on the ground that a juror gave an erroneous or incorrect answer on voir dire examination must show probable injury deprives Kurth and Wade of precedential weight.” Id. Appellants also cite General Accident Fire and Life Assurance Corp. v. Coffman, 326 S.W.2d 287 (Tex.Civ.App. — Waco 1959, writ ref’d n. r. e.); there the court distinguished Childers and its progeny, but did so on the ground that the peculiar facts there indisputably showed harm to the complaining party. Thus, Coffman provides no aid to appellants here.

In the instant case, we are of the opinion that appellants have failed to meet their burden of showing either that prejudice existed or that they were harmed in any way by Campbell’s failure to disclose his knowledge of the purported settlement offer. On the basis of the record before us, we find no abuse of discretion by the trial court in impliedly finding that prejudice did not exist and that the juror Campbell was not disqualified. Appellants’ point of error two is overruled.

We now turn to the allegations of jury misconduct concerning Campbell’s repeating the statement about a settlement offer in the jury room during the deliberations. It is the general rule that the question of whether an overt act of misconduct occurred in the jury room is a question of fact, but the question of whether the misconduct resulted in injury to the complaining party or affected the verdict of the jury is a question of law. City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989, 992 (1941); Minor v. Gross, 478 S.W.2d 597, 601 (Tex.Civ.App. — Tyler 1972, writ ref’d n. r. e.); Blossman v. State, 482 S.W.2d 937, 943 (Tex.Civ.App. — Corpus Christi 1972, no writ). Where there is a conflict in the evidence concerning whether misconduct occurred, the decision of the trial court on that question of fact is final and binding on the reviewing court. Brawley v. Bowen, 387 S.W.2d 383, 384 (Tex.1965); City of San Antonio v. McKenzie Construction Co., supra. In the absence of findings of fact or conclusions of law being filed concerning the hearing on a motion for new trial based upon alleged jury misconduct, we must presume that the trial court did not find that jury misconduct occurred, that it was material, or that it probably caused harm. Brawley v. Bowen, supra; Naranjo v. Cull, 569 S.W.2d 529, 531 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n. r. e.); Tees v. Tees, 546 S.W.2d 912, 915 (Tex.Civ.App. — Houston [1st Dist.] 1977, no writ). The implied finding of no misconduct is not binding on appeal and the aforesaid presumption regarding the fact of occurrence of misconduct does not obtain, however, where the uncontroverted evidence demonstrates that the misconduct did occur. Naranjo v. Cull, supra; Rodman Supply Co. v. Jones, 370 S.W.2d 951, 954 (Tex.Civ.App. — Amarillo 1963, no writ). Here, it is not disputed that the remark about a settlement offer was, in fact, made. Nevertheless, the presumption that the trial court found all other controverted facts in support of its ruling remains. See Brawley v. Bowen, supra; Fields v. Texas Employers’ Insurance Ass’n, 565 S.W.2d 327, 329 (Tex.Civ.App. — Amarillo 1978, writ ref’d n. r. e.); FLR Corp. v. Blodgett, 541 S.W.2d 209, 216 (Tex.Civ.App. — El Paso 1976, writ ref’d n. r. e.), appeal dismissed and cert. denied, 434 U.S. 915, 98 S.Ct. 386, 54 L.Ed.2d 273 (1977).

Once it has been determined that an act of misconduct has occurred, the inquiry turns to the question of materiality and probable injury. There is a difference between condemning an act as misconduct and determining that such misconduct destroys the verdict. 3 McDonald, Texas Civil Practice sec. 14.09 at p. 559 (1970) (hereinafter cited as “McDonald”); Minor v. Gross, supra. Misconduct is material only when it is reasonably calculated to prejudice the rights of the complainant. Here again the trial judge is best equipped to judge the potentialities of prejudice from misconduct and his decision is to be given great weight, but this is a question of law, and as such, is freely reviewable. 3 McDonald sec. 14.16.3 at pp. 579-80.

The point in time during jury deliberations at which misconduct occurs is an important factor in determining the probability of injury. Fountain v. Ferguson, supra at 508. Improper jury conduct which occurs after the jury has answered the issues which might have been affected thereby is not reasonably calculated to affect the verdict and is not reversible error. Norman v. First Bank & Trust, Bryan, 557 S.W.2d 797, 804 (Tex.Civ.App. — Houston [1st Dist.] 1977, writ ref’d n. r. e.); Navar v. State, 344 S.W.2d 188, 192 (Tex.Civ.App. — El Paso 1961, no writ). In the instant case, the time at which the statement was made about the purported settlement offer is disputed. Mrs. Beard testified that it was made before the reading of the charge; Mrs. Bridges said some of the special issues had been answered and that the statement was not made at the beginning of the deliberations; Campbell testified that the statement was made during deliberations on the damages issues, i. e., after the liability issues had been answered.

In passing on questions of fact as to which there is conflicting testimony, at the hearing on a motion for new trial based upon alleged jury misconduct, the trial court has the same latitude in determining the credibility of witnesses and the weight to be given their testimony as the jury had-on the trial of the original cause. Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770, 773 (1932, opinion adopted); Price v. Biscoe, 141 Tex. 159, 170 S.W.2d 729, 731 (1943, opinion adopted); State v. Walker, 334 S.W.2d 611, 614 (Tex.Civ.App. —Texarkana 1960, no writ). Thus the court may accept or reject all or any part of the testimony of any witness. 3 McDonald sec. 14.16.2 at p. 575, quoting from Edens-Birch Lumber Co. v. Wood, 139 S.W.2d 881, 891-2 (Tex.Civ.App. — Beaumont 1940, writ dism’d, judgment correct).

We must presume that the trial court resolved this issue in support of its implied ruling that no harm resulted from the statement, and we hold that the trial court did not abuse its discretion in so doing and that it did not do so against the great weight and overwhelming preponderance of the evidence. There is sufficient evidence to support the implied finding by the court below that the statement by Campbell concerning a settlement offer was made at a time during the deliberations when it could not have harmed appellants. Point of error three is overruled.

Even if we be in error in this, however, there are sufficient other bases on which to uphold the action of the trial court. Specifically, in determining whether improper conduct was material and probably caused injury, we may consider such matters as the nature of the conduct, the significance of the conduct, the presence or absence of a rebuff, whether the statements were asserted as fact or opinion, the time the misconduct occurred, whether there was a change in vote after the misconduct, and the duration of the deliberations. Reese v. Brittian, 570 S.W.2d 528, 533 (Tex.Civ.App. — Amarillo 1978, writ ref’d n. r. e.); see also 3 McDonald sec. 14.16.5 at p. 584. Also very significant is the presence or absence of discussion of the improper matters. Pope, Jury Misconduct and Harm, 12 Baylor L.Rev. 355, 364 (1960); see, e. g., Roming v. McDonald, 514 S.W.2d 129, 130 (Tex.Civ.App. — El Paso 1974, writ ref’d n. r. e.). In the instant case, the offending statement concerning a purported settlement offer was, at most, made once and repeated once. There is no evidence of a discussion of the matter among the jurors. As the court said in Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646, 649-50 (1957), “the bare statement itself is not persuasive evidence that it probably controlled the votes of those who heard it,” and “we cannot presume that they were affected.” With regard to the nature and significance of the statement, we feel it is questionable whether the statement was prejudicial to appellants. Appellees argue convincingly that the statement could have had a prejudicial effect only against Continental and Yaggi, the purported offer being taken, in its natural import, as an admission of liability on the part of Continental. Appellants argue that it was detrimental to them in that it generally prejudiced the jury against them, in that the alleged refusal of the offer was unreasonable or “greedy,” the jury could have believed that Mrs. Massengale would be entitled to the settlement even after trial, and the amount found as damages sustained by Mrs. Massengale and her daughter (in separate issues) was approximately the same as the amount purportedly offered. The relevance of the statement made to these possible detrimental effects on appellants, however, is at best remote and inferential. Appellants argue that the statement itself was so prejudicial as to obviate the requirement of a showing of harm. We find no merit in this contention.

The remark concerning Mrs. Massengale’s probable remarriage and resultingly- lessened requirement for money and the remark concerning the dividing of any recovery between two of her lawyers were said by Mrs. Beard to have been made by an unnamed woman juror, apparently after the jury’s lunch recess. Campbell at first denied that the statement about remarriage was made, then later testified that he had heard it but could not recall when it was made; he did not recall the statement concerning attorney’s fees. Mrs. Bridges and Pearson were not questioned concerning either remark. With regard to the alleged statement about attorney’s fees, a fact question as to its occurrence was presented which the trial court impliedly resolved against its having been made. United States Fidelity & Guaranty Co. v. Turner, 390 S.W.2d 302, 303-4 (Tex.Civ.App. — Texarkana 1965, writ ref’d n. r. e.); Bailey v. Rains, 485 S.W.2d 837, 841 (Tex.Civ.App.— Waco 1972, writ ref’d n. r. e.). We are bound thereby. Brawley v. Bowen, supra. Even if we be in error concerning the occurrence of misconduct, however, we do not feel that these statements were harmful. The maker of the statements was not identified and was not called as a witness, and they were made but once with no discussion of the matters alluded to. The trial court impliedly found that they were made at a time when they would not have been harmful. See 3 McDonald sec. 14.16.4 at p. 581. Mere passing mention of attorney’s fees during jury deliberations has been held insufficient to require a new trial. McCarthy Oil & Gas Corp. v. Cunningham, 255 S.W.2d 368, 371-2 (Tex.Civ.App. — Galveston 1953, writ ref’d n. r. e.); City of Fort Worth v. Estes, 279 S.W.2d 687, 689 (Tex.Civ.App.— Fort Worth 1955, writ ref’d n. r. e.); see also General Motors Corp. v. Hopkins, 535 S.W.2d 880, 891 (Tex.Civ.App.- — Houston [1st Dist.] 1976), affirmed, 548 S.W.2d 344 (Tex.1977); Missouri Pacific Railroad Co. v. Vann, 384 S.W.2d 385, 389 (Tex.Civ.App.— Beaumont 1964, writ ref’d n. r. e.). In Pittman v. Baladez, 304 S.W.2d 601, 608 (Tex.Civ.App. — Austin 1957), reversed on other grounds, 158 Tex. 372, 312 S.W.2d 210 (1958), mention of both attorney’s fees and insurance was held harmless.

Most importantly on the question of harm, there was no evidence tending to show that the verdict was tainted by the statements. Rule 292, T.R.C.P., provides, “A verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve . . . .” It is evident from the testimony of all four jurors that at no time did more than two jurors vote to place the liability upon Yaggi, that the ten jurors who voted to place the liability upon Massengale did not change their votes on liability issues throughout the deliberations, and that the two only voted with the ten at the end of the deliberations. Thus, appellants have shown neither materiality of any misconduct, nor harm therefrom. Tees v. Tees, supra at 916. While jurors cannot receive evidence outside the record, it must be shown that others were probably influenced by the remark before reversal is required. Mrs. Baird’s Bread Co. v. Hearn, supra; State Highway Dept. v. Pinner, 531 S.W.2d 851, 857 (Tex.Civ.App. — Beaumont 1975, no writ).

We are aware that a number of instances of misconduct during jury deliberations, though harmless if taken separately, may, in combination, call for a reversal. Sproles Motor Freight Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642, 645 (1943). Manifestly, however, this rule does not abrogate the requirement to prove probable injury, caused by the several acts of misconduct. Rule 327, supra; see Walker v. Thompson, 287 S.W.2d 556, 558 (Tex.Civ.App. — San Antonio 1956, writ ref’d n. r. e.); Sims v. McKnight, 420 S.W.2d 173, 178 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n. r. e.); Cargo Ships & Tankers, Inc. v. McDonald, 435 S.W.2d 866, 875 (Tex.Civ.App. — Beaumont 1968, writ ref’d n. r. e.); King v. Smith, 482 S.W.2d 388, 390 (Tex.Civ.App. — Eastland 1972, no writ); Landreth v. Reed, 570 S.W.2d 486, 491 (Tex.Civ.App. — Texarkana 1978, no writ).

In determining whether alleged jury misconduct was material and resulted in probable injury, both the trial and reviewing courts must examine the record as a whole, i. e., any and all parts of the record which may throw light on the question of injury, including the evidence heard during the main trial as well as that adduced at the hearing on the motion for new trial. Rule 327, supra; Fountain v. Ferguson, supra at 508; Willrodt v. Union City Transfer, 258 S.W.2d 443, 446 (Tex.Civ.App.— Fort Worth 1953, writ ref’d n. r. e.). Having reviewed the entire record, we find no basis for holding the trial court in error. Appellants have the obligation to show that, on the record of the entire case, they were probably harmed by the alleged acts of jury misconduct. They do not, however, refer to any evidence adduced on the . trial in chief. Having failed to point out the evidence which would support their contention that they were entitled to a verdict in their favor, appellants have failed to meet their burden of showing, on the whole record, that they were probably deprived of such a verdict by the alleged misconduct. Sims v. McKnight, supra at 178-9. Stated differently, to say that the alleged misconduct probably caused the rendition of an improper verdict, we would be first compelled to conclude from the record as a whole that, but for the alleged misconduct, the jury would probably have answered the liability issues in such a fashion as to impose liability on Yaggi and Continental. It is not enough to say that the jury might possibly have done so. After a review of the entire record, we do not believe we would be justified in concluding that but for the alleged jury misconduct, the jury would have probably answered the special issues in a manner favorable to appellants. Sendejar v. Alice Physicians and Surgeons Hospital, Inc., 555 S.W.2d 879, 888 (Tex.Civ.App. — Tyler 1977, writ ref’d n. r. e.). See also Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W. 242, 245 (1955).

Having carefully reviewed the several cases cited by appellants for their contention that the statements here caused them harm, we are of the opinion that they are not relevant here. In each, we find either support for appellees’ position in this appeal or instances of misconduct glaringly more serious than those with which we are concerned here.

Weighing all of the factors bearing on the existence of harm, we are of the opinion that it is not probable that the acts of misconduct alleged here, taken singly or in combination, affected the verdict or caused any injury to appellants. Appellants’ points of error one and four are overruled.

In their final point of error, appellants contend that the trial court erred in entering judgment on the verdict because of an alleged conflict in the jury’s answers to the special issues. As noted previously, the jury found three instances of negligence on the part of Massengale and exonerated Yaggi of actionable negligence. Then special issue 16 was answered as follows:

“What percentage of the negligence that caused the occurrence do you find from a preponderance of the evidence to be attributable to each of the parties found by you to have been negligent ?
“The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found.
“Answer by stating the percentage, if any, opposite each name.
“Edwin M. Massengale *70’_%
“Ernest E. Yaggi ‘30’_%”
[Emphasis added.]

The test to be applied in a situation where there are conflicting answers in a verdict is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant. In applying this test, we must consider each answer claimed to be in conflict, disregarding the other conflicting answer but considering the rest of the verdict, and if so considered, one of the answers would require judgment in favor of the plaintiff and the other would require judgment in favor of the defendant, then the answers are fatally in conflict. Thus, the party seeking to set aside a verdict on the ground of conflicting answers has the burden of showing that one of the conflicting answers, plus the rest of the verdict (disregarding the other conflicting answer), requires entry of a judgment different from that entered. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949); Southern Pacific Transportation Co. v. Bender, 582 S.W.2d 568 (Tex.Civ.App. — Tyler, 1979). Applying this test to the instant case, it is manifest that there is no fatal conflict between or among the jury’s answers.

A second basis for the same conclusion is that the specific finding concerning liability controls over the general finding of comparative negligence. Tennessee Gas Pipeline Co. v. Hartman, 556 S.W.2d 616, 619 (Tex.Civ.App. — Corpus Christi 1977, no writ); Ingles v. Cohen, 543 S.W.2d 455, 457 (Tex.Civ.App. — Waco 1976, writ ref’d n. r. e.). Appellants urge us to follow Wisconsin cases said to be authority for a holding of fatal conflict in a situation such as that presented here. That we refuse to do in the face of Texas case authority in point. Appellants argue further that Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772 (1960), renders Tennessee Gas and Ingles incorrect. We find no merit'in this contention. Bradford modified the Little Rock rule, repeated above, to provide for the situation where its application would result in an inability to enter judgment for either party, in which event Bradford decreed that the verdict would not be permitted to stand. It did not abrogate the rule of Little Rock, however, and here its qualification of that rule is not applicable. See Ross v. Whiteside, 356 S.W.2d 497, 498 (Tex.Civ.App.— Eastland 1962, no writ); Gray v. L-M Chevrolet Co., 368 S.W.2d 861, 866-7 (Tex.Civ.App. — El Paso 1963, writ ref’d n. r. e.). Whether appellants’ contention that Bradford involved a conflict between specific and general findings is valid (there, the jury found specific acts of negligence by both parties and that the accident was unavoidable — this was held to be a fatal conflict), is immaterial here, for we base our conclusion that there is no fatal conflict here on the rule of the Little Rock case, supra. Appellants’ fifth point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    Sammie L. GRIFFITH, Sr., Appellant, v. Bertie Mae GRIFFITH, Appellee.
    No. 8314.
    Court of Civil Appeals of Texas, Beaumont.
    June 14, 1979.

      Bill F. McGraw, Jasper, for appellant.
    J. Glenn Barber, Jasper, for appellee.
   KEITH, Justice.

Respondent below appeals from an unfavorable decree dividing the community property of the parties, complaining that the trial court awarded the petitioner/wife “an inequitable, unfair, unjust and disproportionate share of the community property,” and that the evidence was legally and factually insufficient to support the award so made. We have no statement of facts, appellant having specifically waived the presence of a court reporter at the bench trial preceding the entry of the judgment.

Having no statement of facts, appellant has chosen the hard road in attempting to show reversible error. After the entry of the judgment, appellant requested findings of fact and conclusions of law and such were filed promptly. Appellant then addressed a three-page letter to the district judge asking for further findings as set out in the letter. There were twenty-three questions so propounded inquiring in great detail as to every aspect of the property rights of the parties. In addition, the last, No. 24, asked for findings as to:

“The basis for arriving at the Findings of Fact under Paragraph 5 of the Finding of Fact and Conclusions of Law heretofore filed in this cause and being Findings (e), (f), (g), (h), (i), (j), (k), (I), (m), and Item VI and Item VII.”

The trial court did not respond to this demand nor did it voluntarily submit to the cross-examination as set out in Item 24, quoted above.

About a month later, after the trial court had ignored the request for supplemental findings, appellant filed what he denominated as his Bill of Exception consisting of his version of a narrative statement of the evidence adduced upon the trial. This instrument was ten pages in length, contained many self-serving declarations, argumentative assertions, and conclusions.

There was no showing that adverse counsel had seen the instrument before it was filed with the clerk. The Court, on the day of filing, refused to approve the bill. Thereupon, and again upon the same date, appellant excepted to the refusal of the bill and tendered his bystanders’ affidavits in support of the rejected bill. All of the events concerning the bill of exception occurred during a two-day period — March 5-6, 1979 — without any showing of participation by appellee’s counsel. The transcript was delivered to appellant’s counsel and filed in this court on the same day — March 6, 1979.

In Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968), the Court said:

“The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. 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.”

This language has been used by and cited in dozens of cases, the most recent which has come to our attention being Hynum v. First State Bank of Keene, 575 S.W.2d 431, 432 (Tex.Civ.App. — Waco 1978, no writ).

After being unable to obtain a question and answer statement of facts because of his waiver of the presence of the court reporter at the hearing, appellant made no effort to procure a statement of facts by other means which may have been utilized. See, e. g., Stronck v. Stronck, 538 S.W.2d 854, 856 (Tex.Civ.App. — Houston [14th Dist.] 1976, writ ref’d n.r.e.); Brown v. Brown, 520 S.W.2d 571, 575 (Tex.Civ.App.— Houston [14th Dist.] 1975, no writ).

Instead, he filed the lengthy request for additional findings of fact and conclusions of law which we have noted earlier. He now complains that it was error for the trial court to refuse such request. We disagree. It is veritable Hornbook law that the court is not required to make findings on evidentiary matters or on every controverted f^ct; thus, the failure so to do does not constitute reversible error. See. e. g., Moore v. Campbell, 254 S.W.2d 1018, 1024 (Tex.Civ.App. — Austin 1953, writ ref’d n.r. e.). See also Garcia v. Ramos, 546 S.W.2d 400, 403 (Tex.Civ.App. — Corpus Christi 1977, no writ). All points complaining of the failure to file the findings and conclusions are overruled.

In the case of Provident American Ins. Co. v. Sargent, 451 S.W.2d 773, 774 (Tex.Civ.App. — -Waco 1970, writ dism’d), many cases are cited supporting this holding:

“It is the settled rule in this state that a bill of exception cannot be used on appeal as a medium for supplying a statement of facts, however full the recital of facts in the bill might be.”

The trial court, by letter to counsel, offered to approve the bill of exception tendered by appellant if the particular complaint was pointed out therein. We approve the action of the trial court in refusing to approve a bill of exceptions which was, in essence, appellant’s version of the facts adduced upon the trial of the cause. The fact that the bill, as now presented to this court, is a bystanders’ bill, adds nothing to its validity. We have not — because we have no authority so to do — given any consideration to the contents of the bill of exception.

In Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974), this language was used:

“It is well established that Texas divorce courts are given wide discretion in making division of the property of the parties. That discretion will not be disturbed on appeal unless the court has clearly abused its discretion.”

Indeed, the court in Cusack v. Cusack, 491 S.W.2d 714, 721 (Tex.Civ.App. — Corpus Christi 1973, writ dism’d), noted that the provisions of Tex. Family Code Ann. § 3.63 (1975) do not require the division of the property to be equal. The court, citing several cases, restated the general rule and held that there is “a presumption in favor of the trial court’s exercise of its discretion regarding division of property in a divorce action.”

Having no statement of facts, we are unable to come to grips with appellant’s basic complaints; consequently, the judgment is affirmed.

AFFIRMED.


author: DIES, Chief Justice.

text:
    ROOT COMPANY, Appellant, v. MONTGOMERY COUNTY DRAINAGE DISTRICT NO. 6, Appellee.
    No. 8267.
    Court of Civil Appeals of Texas, Beaumont.
    June 14, 1979.

      Harold Denton, Conroe, for appellant.
    Ernest Coker, Jr., Conroe, for appellee.
   DIES, Chief Justice.

Appellant Root Company, defendant below, was in possession of land title to which is in dispute. Conroe Independent School District brought suit against Root and’ another defendant for dispossession and prayed for recovery of the fee simple title and possession of the property. Montgomery County Drainage District No. 6 (hereafter Montgomery) intervened claiming an easement over this land. In this first petition Montgomery also asserted that it had been prevented from entering onto the land, that it had the power to condemn the land, and that it had entered an order to purchase or condemn the land involved in order to construct a drainage ditch. This petition was amended twice; an injunction was requested by Montgomery in the first amended petition to enjoin Root from interfering with Montgomery’s right of possession.

A hearing on the injunction was held on October 5, 1978. As a result, the court denied the temporary injunction but gave Montgomery the right to take immediate possession of the premises upon the posting of a corporate security bond of $35,000.

From this order Root perfects this appeal. Appellant’s first point of error urges that appellee did not have the power to condemn the land in question. (Apparently the proposed ditch crosses the two tracts whose title is in dispute and which are both outside appellee’s district.)

Montgomery County Drainage District No. 6 was created by the Commissioners’ Court of Montgomery County, Texas, on December 28, 1977; it operates under Chapter 56 of the Texas Water Code and other general statutes applicable to drainage districts. Tex. Water Code Ann. § 56.-119(a) (Vernon Supp. 1978) provides:

“Any district may exercise the power of eminent domain to condemn and acquire the right-of-way over and through public and private lands necessary for making canals, drains, levees, and improvements in the district and for making necessary outlets thereto in any county in the state.” (Emphasis supplied).

Nueces County Drainage and Conservation District No. 2 v. Bevly, 519 S.W.2d 938 (Tex.Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.), is distinguishable from the facts in the instant case as the Nueces County Drainage District’s power of eminent domain had been restricted to the area lying within its boundaries. Id. 944-945. Section 56.119(a) places no such restriction on a drainage district. Under Section 56.-119(a), a drainage district is specifically given the power to condemn for right-of-way purposes any lands “necessary for making canals, drains ... in the district and for making necessary outlets thereto . .” Accordingly, we interpret this section to authorize Montgomery County to condemn those tracts of land not within the drainage district for the purpose of making necessary outlets from land located within the district.

Appellant also urges that the court should not have granted appellee immediate possession because appellee acted in bad faith in asking for an injunction in order to bring the case within the purview of Tex.Rev.Civ.Stat.Ann. art. 3269 (Vernon 1968). This question was raised on appeal but not raised in the trial court by pleas in abatement or other pleadings in Coastal States Gas Producing Co. v. Miller, 160 Tex. 295, 329 S.W.2d 853, 860 (1959). The Texas Supreme Court noted that the pleadings, the statement of facts, and the trial court’s judgment indicated that all parties assumed that the suit was brought in good faith.

In the instant case Conroe initiated the first cause of action, and Montgomery intervened. In the cause Montgomery initiated it requested a temporary injunction. See note 1, supra. While Montgomery did not ask for an injunction in its first intervention petition, filed August 16, 1978, it did ask the court to set the amount for a security deposit and allow it to enter upon the land for purposes of constructing the ditch. In its first amended petition, filed September 11, 1978, Montgomery asked for a temporary injunction to enjoin Root from interfering with its right to come on the land. At the hearing and in its reply, appellant urged that this amendment was done in bad faith to confer jurisdiction under Article 3269.

There is no question but that appellee would have been entitled to ask for an injunction when he first intervened. The Supreme Court has ruled that the injunc-tive relief sought is injunctive relief sought by any party to the suit and not just the condemnee. Coastal States, supra at 859.

Nor is there any question but that in a case within the confines of Article 3269, the court, upon denial of the injunction, has the power to set the security deposit and give the district immediate possession of the land. City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308 (1955); Jefferson Co. Drainage Dist. No. 6 v. Gary, 362 S.W.2d 305 (Tex.1962). In Coastal States, supra, the Supreme Court notes that when the court denied the injunctive relief “it became the duty of the court to fix the amount of security necessary to protect the condemnees in their property rights, so that upon compliance with such order of the court the condemnor could make immediate entry upon the land for the purposes for which it had the right of condemnation.” Id. 860.

In City of Houston v. Fort Worth & Denver Ry. Co., 561 S.W.2d 22 (Tex.Civ.App. — Houston [1st Dist.] 1978, writ ref’d n. r. e.), the appellate eourt found that the city’s assertion of a property right, alleged in a supplemental petition, brought it within the jurisdiction of the district court under Article 3269. The court went on to say. “If the city shows it has that right, it also has the right to seek an injunction and, if then denied, to provide adequate security and take possession of such property.” Id. 24.

Finding Montgomery had the power to condemn this land, we hold that it was necessary for the trial court to set the amount of security required and grant immediate possession upon the denial of the temporary injunction.

Appellant complains that appellee should not have been granted immediate possession because appellee failed to offer any evidence of satisfaction of the necessary procedural prerequisites of having made a bona fide effort to negotiate. It is true that appellee admits there was no effort to negotiate; however, negotiation is not a prerequisite of a suit that comes within Tex.Rev.Civ.Stat.Ann. art. 3269 (Vernon 1968). See Southern Pacific Transportation Co. v. County of Harris, 508 S.W.2d 484 (Tex.Civ.App. — Houston [1st Dist.] 1974, writ ref’d); Holcomb v. City of Dallas, 315 S.W.2d 454 (Tex.Civ.App. — Texarkana 1958, writ ref’d n. r. e.).

Finding all of appellant’s points of error to be without merit, we overrule them and affirm the order of the trial court.

AFFIRMED.

      . In the second cause Montgomery instituted the suit against Root alleging that Root had interfered with Montgomery’s right to enter land upon which it had a legal easement in order to construct a drainage ditch. This petition prayed for a temporary injunction to restrain Root from interference or for the court alternatively to require a security deposit and grant immediate possession.

      . For purposes of this hearing both parties stipulated that the evidence produced would be considered by the court in connection with both Causes 29,012 and 30,406 although the causes would not be consolidated. Separate orders were entered.


author: CARVER, Justice.

text:
    Carolyn TAYLOR and Henry Fairley, III, Appellants, v. Viola Gwendolyn LUCIK, Appellee.
    No. 19806.
    Court of Civil Appeals of Texas, Dallas.
    June 15, 1979.
    Rehearing Denied July 18, 1979.

      Alfred L. Ruebel, Dallas, for appellants.
    Charles M. Wilson, III, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   CARVER, Justice.

Appellants complain of the grant of a temporary injunction against them and the denial of appellants’ plea to the jurisdiction of the probate court to entertain this suit or grant any relief herein. We hold that the trial court lacked subject matter jurisdiction and accordingly dissolve the temporary injunction and render judgment dismissing this application for temporary injunction for want of jurisdiction in the probate court.

The relevant facts are undisputed. John Richard Lucik, prior to his death on July 1, 1978, was married to appellee Viola Gwendolyn Lucik and had a special friendship with appellant Carolyn Taylor. After his death, two wills were considered in a single probate proceeding in which each, both the widow and Taylor, was, respectively, principal beneficiary. The widow filed an “application for temporary restraining order” in the same suit in which the two wills were sought to be probated. The “application for temporary restraining order” states:

Contestant and the deceased were married October 18,1959 and have thereafter continuously lived together as husband and wife, except that approximately eleven years ago Contestant became afflicted with multiple sclerosis and that by reason of such disease she has been confined to Brookhaven Nursing Center as a patient for the last two years, with physical incapacity which requires her to be confined to her bed a greater portion of the time. Contestant owns as her separate property some shares of stock issued by Affiliated Fund, which she owned at the time of her marriage, and a large amount of valuable jewelry, some of which was owned by her at the time of marriage and some of which was given to her by the deceased prior to or during the marriage, and that during the marriage of the parties they have acquired as their community property a substantial community estate consisting primarily of money on deposit in banks and savings accounts, retirement benefits, life insurance, a_automo-bile, household furniture, appliances, equipment and effects, accounts receivable and corporate securities, including shares issued by Texaco, Inc. When Contestant became confined to the nursing home, she left all of such assets in the possession of the deceased.
During the confinement of Contestant the Defendant, Carolyn Taylor, carried on an illicit affair with the deceased and the Contestant is informed and believes that she prevailed upon said deceased to deliver into her possession a substantial portion of the community assets of the parties, including the automobile above referred to, Contestant’s jewelry, the house furniture and appliances, equipment and effects of the parties, including their silverware and dishes, and also substantial sums of money. She is also informed and believes that said Defendant was authorized by the deceased to sign checks on his bank account in one or more banks in Dallas, Texas, and that she has withdrawn substantial sums of money from such accounts and converted them to her own use. Such actions were taken without the knowledge or consent of Contestant, and constitute fraud upon the community estate of Contestant and are not binding upon Contestant, who is entitled to recover possession of all of the properties and funds which have been put into the possession of said Defendant Contestant is informed and believes and alleges the facts to be, that said Defendant now has title to said automobile in her name, and has placed Contestant’s jewelry and the stock certificates evidencing the community portion of stock owned by Contestant and the deceased, in a safety deposit box believed to be Box No. 6599 in her name at the Preston State Bank in Dallas, Texas. She has also taken into her possession the automobile above described, and the household furniture and effects of Contestant and the deceased, along with funds belonging to Contestant and the deceased, for the purpose and intention of secreting same from the Temporary Administrator to be appointed in this cause, and for the purpose of depriving Contestant of her title and interest therein. [Emphasis added.]

In response to this application, respondents Taylor and Fairley (named executor in will favoring Taylor) filed their plea to the jurisdiction asserting that the relief sought was not “by or against an estate” nor “incidental to an estate” so as to give the probate court jurisdiction. The trial court overruled the plea to the jurisdiction and granted the temporary injunction.

The jurisdiction of the probate court is set forth in Tex.Prob.Code Ann. § 5(d) (Vernon Supp.1978):

All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for the trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills . . . [Emphasis added.]

Suits “by or against the estate” are brought by the “personal representative.” See Davis v. Thomas, 548 S.W.2d 755 (Tex.Civ.App. —Tyler 1977), rev’d on other grounds, 553 S.W.2d 624 (Tex.1977). Suits “incident to an estate” include those specifically mentioned in the statute and also those further seeking to either to recover possession of, clear title to, or collect damage for the conversion of property or to determine whether the property was community. Parr v. White, 543 S.W.2d 440 (Tex.Civ.App. — Corpus Christi 1976), writ ref’d, 559 S.W.2d 344 (Tex.1977); Potter v. Potter, 545 S.W.2d 43 (Tex.Civ.App. — Houston [1st Dist.] 1976, writ ref’d n. r. e.). “Incident to an estate” applies to those matters in which “the ‘controlling issue’ is the settlement, partition or distribution of an estate.” Sumaruk v. Todd, 560 S.W.2d 141, 144 (Tex.Civ.App. — Tyler 1977, no writ).

It is undisputed that the widow was not acting as the “personal representative” of the estate, but rather in her own behalf to recover her separate and her share of the community property. Her pleadings allege that the decedent made transfers to Taylor in fraud of the community survivor (not the community decedent) and sought restoration to her. The widow argues that the actual order of restraint entered by the court is limited to any act of selling, disposing, transferring, encumbering, changing in form or location of any asset of any kind or character, tangible or intangible, “belonging to the estate of John Richard Lucik, deceased,” a relief peculiarly incident to or for the benefit of the estate and not for Taylor. More succinctly put, the widow urges that, even though she is the real party in interest, the trial court had jurisdiction because it granted relief, not to the widow, but to the estate for the preservation of its assets. We cannot agree that the court had jurisdiction to grant relief to the estate in response to a petition alleging violation of the widow’s individual rights. It is elementary that jurisdiction of the subject matter attaches when the petition is filed. Hughes v. Atlantic Refining Co., 424 S.W.2d 622 (Tex.1968); see Indemnity Insurance Co. of North America v. Carrell, 318 S.W.2d 744 (Tex.Civ.App. — Waco 1958, writ ref’d n. r. e.); Shepperd v. Parr, 287 S.W.2d 204 (Tex.Civ.App. — Waco 1956, writ ref’d n. r. e.). If jurisdiction over the subject matter does not attach at the time of filing, it cannot be cured by purporting to grant relief to the estate. Accordingly, we hold that since the relief prayed for enures to the widow’s benefit rather than to the decedent’s estate, the order granting in-junctive relief is not one “incident to an estate” or “by or against an estate.” Consequently, the probate court lacked jurisdiction and its injunction is void. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex.Civ.App. — Amarillo 1931), aff’d, 55 S.W.2d 797 (Tex.Comm’n App.1932, jdgmt. adopted). -Accordingly, the injunction is dissolved and the application for temporary injunction is dismissed.


author: OSBORN, Justice.

text:
    MESA AGRO, a division of Mesa Petroleum Co., Appellant, v. R. C. DOVE & SONS, Appellee.
    No. 6830.
    Court of Civil Appeals of Texas, El Paso.
    June 20, 1979.
    Rehearing Denied July 18, 1979.

      Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Midland, D. D. Dent, Barry F. Cannaday, Amarillo, for appellant.
    John L. Shepherd, Seminole, Templeton & Garner, Robert E. Garner, Charles Watson, Amarillo, for appellee.
   OPINION

OSBORN, Justice.

This is a breach of contract suit involving an agreement to graze cattle for five years. Based upon jury findings, the trial Court entered judgment for the Plaintiff-Appellee for $325,000.00. We reverse and render.

On November 15, 1973, the parties entered into a “Pasture Agreement.” The entire agreement provides:

Mesa-Agro, Seminole Division, will agree to put in the care of R. C. Dove & Sons cattle on a year around basis for the purpose of grazing for the Mesa-Agro.
The grazing agreement, the first winter season will be on the basis of $1.50 per hundred weight per month, based on the purchase weight of the cattle. Mesa-Agro also agrees to pay R. C. Dove & Sons $1.00 per head per month for the first sixty (60) days and $.50 per head per month for the remainder of the grazing period, for the care of said cattle. All drugs and salt or mineral will be provided by Mesa-Agro.
The basis of payment for grazing after the first winter season is to be determined and agreed upon by R. C. Dove & Sons and the manager of the Seminole Division of Mesa-Agro.
As long as all grazing agreements are honored and sufficient feed and water is provided for the cattle, Mesa-Agro agrees to provide cattle for R. C. Dove and Sons for a period of five years or R. C. Dove and Sons desire to cease.

The Court submitted two issues to the jury. They found (1) that after the first winter David Lowe (Appellant’s manager) and Bobby Dove agreed that the payment schedule listed in the contract dated November 15, 1973, would continue to be the basis of payment for grazing for the remaining four years of the contract, and (2) the Plaintiff’s net profit under the contract would have been $325,000.00.

The trial Court entered a judgment based upon that verdict on August 25, 1978. On August 31, 1978, the Defendant-Appellant filed a motion to set aside judgment, reciting an agreement with the Court that entry of judgment would be delayed until Defendant’s Motion for Directed Verdict and objections to special issues had been transcribed and made available to Defendant. It further recites that, based upon the agreement, Defendant had not filed a Motion for Judgment or Motion for Judgment Notwithstanding the Verdict. On the same day, August 31,1978, the Court granted the motion and ordered that the judgment entered on August 25,1978, “be and the same is hereby set aside.” On September 18, 1978, Defendant filed its motion for judgment notwithstanding the verdict. On September 22,1978, that motion was overruled. On October 2, 1978, the Court entered the same identical judgment which had been entered on August 25, 1978, except for the date of the judgment. Defendant then filed a Motion for New Trial on October 10, 1978. It was overruled on October 12,1978. The appeal bond was filed October 25, 1978.

MOTION TO DISMISS

The Appellee has filed a motion and an amended motion to dismiss for want of .jurisdiction. The basis for the motion is that a trial court may not extend the time for appeal by re-entering a former judgment. Thus, it is contended that the time for filing the appeal bond began to run from August 25,1978, and the bond filed on October 25, 1978, was not timely and thus this Court has no jurisdiction to hear this appeal. We disagree.

One of the leading cases on the issue is A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853 (1952). In that case, the trial court enlarged the time for filing an original motion for new trial. The court held that “extendpng] the time for filing a motion for new trial * * * is specifically prohibited by Rule 5, Tex.R.Civ. P.” In reaching that result, the court found that “Here the trial court did not seek to alter, modify or set aside its judgment, which it has the inherent power to do, * * * .” Thus, we can see that this case does not turn upon some action taken with regard to the judgment, but only with regard to an appellate step (filing a motion for new trial) after judgment.

The Texas Supreme Court has continued to recognize the plenary power of a trial court over its judgments until they become final. In Mathes v. Kelton, 569 S.W.2d 876 (Tex.1978), the court said:

A trial court has plenary power to reverse, modify, or vacate its judgment at any time before it becomes final.

One week after the Mathes decision, the court again stated that while the trial court has plenary power over its judgment, it has power to vacate that judgment. Transamerican Leasing Company v. Three Bears, Inc., 567 S.W.2d 799 (Tex.1978). Of course, plenary power is that which is “Full, entire, complete, absolute, perfect, unqualified.” Black’s Law Dictionary 1313 (4th ed. rev. 1968).

We find no conflict between this power and the provisions of Rule 5, Tex.R.Civ.P., which provides that a court “may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing except as stated in the rules relating thereto or the period for taking an appeal or writ of error from the trial court to any higher court * * * .”

First of all, there can be no appeal until there is a final judgment. As long as the trial court has plenary power, the judgment is not final. But, even during that period it may not extend the time for appeal as was attempted in the Republic Supply Co. case, but is most certainly may set aside or vacate its judgment and, when that is done, the appeal time should not begin to run until a final judgment is entered.

Appellant relies upon Anderson v. Casebolt, 493 S.W.2d 509 (Tex.1973); Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App. — Austin 1978, no writ); and Stewart v. Fireman’s Relief and Retirement Fund Trustees of the City of Austin, Texas, 489 S.W.2d 743 (Tex.Civ.App. — Austin 1973, no writ). In Anderson, the trial court apparently attempted to set aside a judgment (in order to permit the filing of a motion for new trial) and enter another one more than thirty days after the original judgment and at a time when it had lost all plenary power. This, of course, it could not do and any appellate steps based upon the second judgment were a nullity. The facts in that case have no application to the case now before this Court.

In Nolan v. Bettis, supra, the trial judge, motivated by a sense of justice (and to permit the filing of a motion for new trial), set aside a judgment eleven days after it had been signed. He had power to set it aside at any time within thirty days. Rule 329b, Tex.R.Civ.P. More than a month later, he signed a second judgment identical to the first judgment. Appellant then timely filed a motion for new trial and perfected an appeal from the second judgment. The Court of Civil Appeals held that the district court may not enter a second judgment that simply affirms a former judgment and thereby enlarged the period for perfecting an appeal. The Court went further and held that a judgment nunc pro tunc on February 5, 1977, was valid and dismissed the appeal because there had not been a final judgment entered.

Justice Shannon in Nolan v. Bettis followed his earlier opinion in Stewart v. Fireman’s Relief and Retirement Fund Trustees of the City of Austin, Texas, supra. This is another case where a trial judge, motivated by a sense of justice and recognizing a right to appeal, set aside a prior order overruling a motion for judgment nunc pro tunc and then re-entered the same order (thereby permitting the timely filing of a notice of appeal) from which an appeal was timely perfected. In dismissing the appeal, Justice Shannon said:

Though the court, after the entry of judgment, has the inherent power for thirty days to set aside, modify, or amend that judgment,1 the court may not enlarge the period for taking an appeal.2
In setting aside the order of April 12, and in entering its new order of May 15, the court made no change in the original order, but rather entered the new order in the precise terms of the original one for the express purpose of enabling the appellant to perfect her appeal. ■

The same results were reached in Chantre v. National Maritime Union Pension & Welfare Plan, 425 S.W.2d 659 (Tex.Civ.App.— Beaumont 1968, no writ).

What is the net effect of the rule announced in these cases? First, it seems that if he so desires any trial judge may avoid an appeal in any case. He simply, enters a judgment, within thirty days while he has plenary power sets it aside, and later re-enters an identical judgment. We do not believe the rules were intended to provide such a trap for the innocent nor a way to avoid the appellate review provided by those same rules. Second, the trial judge who in good faith and for a valid reason sets aside a judgment, as was done in this case, is faced with two alternatives. He may continue with the judgment set aside, which is effect results in a new trial, or he may re-enter the same judgment and thus deny a right of appeal. Neither alternative will meet with his sense of justice in a case such as is now before the Court. Neither do these alternatives meet with our sense of justice.

We believe the preferable rule is one which is consistent with both the holdings in the Republic Supply Co. case and the Mathes case. We do not believe the trial court should be permitted to extend the time for appeal by permitting the late filing of a motion for new trial or a bond or a notice for appeal where required. But, so long as the trial court has plenary power over its judgment and before it becomes final, it may enter, vacate and re-enter any judgment as justice dictates without destroying a right of appeal. Rule 5, Tex.R. Civ.P., is directed toward enlargement of the time for the taking of an appeal. It is not directed to the entry of judgment from which time to appeal commences.

There is nothing in the Rule related to the reason for entering a second judgment. Thus, there is no condemnation of a second judgment where the judge in the interest of justice provides a way for the timely filing of a motion for new trial, but at the same time enters a second judgment to correct a judicial error. If a second judgment if condemned in one instance, it is necessarily condemned in all instances insofar as the time for perfecting appeal under Rule 5, Tex.R.Civ.P., is concerned.

In City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971), the court’s opinion reflects that there was a jurisdictional challenge for failure to timely file the record with the Court of Civil Appeals. The opinion reflects that a judgment was entered on January 9, 1970, and a second “Corrected Final Judgment” was entered on February 5, 1970. The court concluded that since the record was filed within twenty days after the entry of the second judgment the record was timely filed. There can be no contention but that the entry of a second judgment enlarged the time for filing of the record, because otherwise the record would have had to have been filed within twenty days from the entry of the first judgment on January 9, 1970. In that case, the court held that the record was timely filed and the results we have reached in this case are consistent with the results in that case.

In Mathes v. Keiton, 565 S.W.2d 78 (Tex.Civ.App. — Amarillo 1977), the court noted in its opinion that an appeal had been perfected from a judgment nunc pro tunc correcting a clerical error in the original judgment. In that case, the original judgment was entered on December 3, 1976. A motion for new trial was filed on December 13, 1976, and on that same date a second judgment was entered but it did not vacate the first judgment. An amended motion for new trial was timely filed on January 3, 1977. The amended motion for new trial was overruled on February 9, 1977. On February 11, 1977, the trial court rendered a “corrected judgment” which was rendered nunc pro tunc.

The Supreme Court held that the February 11 judgment could not be upheld as a nunc pro tunc judgment. Mathes v. Kelton, 569 S.W.2d 876 (Tex.1978). Thus, Rule 306b, Tex.R..Civ.P., has no application to the appeal in that case. In its opinion, the Texas Supreme Court said:

The rendition of the February 11 judgment, two days after Mrs. Mathes’ amended motion for new trial was overruled, occurred within the trial court’s period of plenary power over its judgment. The judgment of February 11 is therefore a valid final judgment.

Certainly if, as the Court of Civil Appeals said, the appeal was perfected from the February 11 judgment, that “corrected” judgment certainly extended and enlarged the time from which the appeal should have been perfected from the December 3, 1976, judgment. Again, the results which we have reached are consistent with the holding by the Supreme Court in the Mathes case since that case involved a second judgment and not an order extending the time for some procedure concerning appeal after judgment.

We recognize that most if not all of the cases which have been decided on this issue have turned upon a determination as to whether or not the second judgment made material changes and corrected the first judgment, or whether it was a re-entry of an identical judgment. Rule 5 does not contain that distinction. In most of the cases, the courts have recognized the plenary power of a trial judge to set aside or vacate his judgment. In the Mathes case, the court noted that the rendition of the second judgment “occurred within the trial court’s period of plenary power over its judgment.” If, as that decision indicates, a trial court has plenary power to render a decision, it must necessarily have the right and power to re-enter the same judgment during the period when it may exercise plenary power. Any other rule only fosters the injustices which occurred in the Nolan, Stewart, and Chantre cases. The rule which we follow permits the trial court to exercise both sound discretion and plenary power over his judgment and avoids an appellate trap for those who are unaware of trial court traps which may be set accidentally, unintentionally, and in good faith.

But regardless of the fact that Rule 5 makes no distinction with regard to a second “corrected” judgment, all of the above cited cases upon which Appellee relies are distinguishable. In each of those cases, the trial court expressly noted that the second judgment was entered to give a right of appeal which had been lost by a failure to timely file a motion for new trial or a notice of appeal. In this case, no right had been lost and no appellate time had expired when the trial Court set aside its judgment only six days after it was entered. The motion and amended motion to dismiss are denied.

ON THE MERITS

Appellant’s first three points of error attack the contract as being unenforceable. “It is essential to the validity of a contract that it be sufficiently certain to define the nature and extent of its obligations. If an agreement is so indefinite as to make it impossible for a court to fix the legal liability of the parties thereto, it cannot constitute an enforceable contract.” Moore v. Dillworth, 142 Tex. 538, 179 S.W.2d 940 (1944). An agreement to be enforceable as a contract must be definite and certain as to quantity or amount involved and where it is impossible to ascertain the amount or quantity, the agreement is not binding. 17 Am.Jur.2d Contracts sec. 81.

In Terrell v. Nelson Puett Mortgage Company, 511 S.W.2d 366 (Tex.Civ.App.— Austin 1974, writ ref’d n.r.e.), the court affirmed the denial of relief to either party for the reason that their agreement was too indefinite to be enforced and said:

One requirement of a legally binding promise is that it be sufficiently definite in its terms to enable the court to understand what the promisor undertook. Moore v. Dillworth, 142 Tex. 538, 179 S.W.2d 940 (1944), Bendalin v. Delgado, 406 S.W.2d 897 (Tex.1966). A lack of definiteness in an agreement may concern various elements, among others, as the time of performance, the price to be paid, the work to be done, the service to be rendered, or the property to be transferred.

We find the “Pasture Agreement” contains no provision as to (1) the number of cattle to be pastured, (2) the weight of the cattle to be pastured, or (3) the length of time the cattle are to be pastured. The amount to be paid by Mesa Agro to R. C. Dove & Sons is contingent upon each and all of these factors. Without 'all three, there can be no determination of damages resulting from a breach of the contract. We conclude that the contract is unenforceable and sustain Points of Error I, II and III.

The next two points of error assert that the contract was terminable at the will of either party and Appellees cannot recover damages because of Appellant having terminated the contract. Mesa Agro paid the Doves for all sums due for pasturing cattle up to September 11, 1974, at which time the contract was terminated. The suit for lost profits is for the period after that date. Clearly, the last line of the contract gave R. C. Dove & Sons a right to cease and to terminate the Pasture Agreement at any time they chose to terminate during the five year period. This right is set forth without any limitation. In Bradshaw v. Terrell Foundry & Machine Co., 104 S.W. 509 (Ct.Civ.App.1907, no writ), the plaintiff testified as to an agreement to purchase scrap iron that the defendant then had on hand, and all it should afterward acquire until the agreement was terminated. He said he was to have the right to terminate the contract whenever he chose. In considering this issue, the court said:

The trial judge seems to have been of the opinion that the contract was void for want of mutuality. The contract, according to the testimony, was for the purchase by plaintiff of the defendant of all the wrought and steel scrap iron it then had on hand, and all that should after-wards be acquired by it in its business, until the agreement was terminated; and it could be terminated at the will of the plaintiff. This stipulation made the contract indefinite, and as to future purchases determinable at the will of either party. Railway Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 13 Am.St.Rep. 758; Railway Co. v. Mitchell, 38 Tex. 86; Gas Co. v. El Paso, 22 Tex.Civ.App. 309, 54 S.W. 800; Railway Co. v. Morris, 29 Tex.Civ.App. 491, 69 S.W. 102; Coffee Co. v. Guenther Groc. Co., 80 S.W. 1170, 26 Ky. Law Rep. 270.

Illusory and Alternative Promises are considered in Restatement (Second) of the Law, Contracts 2d sec. 79 which says: “Words of promise which by their terms make performance entirely optional with the ‘promisor’ do not constitute a promise.” The following illustration is given:

2. A promises B to act as B’s- agent for three years from a future date on certain terms; B agrees that A may so act, but reserves the power to cancel the agreement at any time. B’s agreement is not consideration, since it involves no promise by him.

Of course, there was consideration flowing between the parties so long as the agreement was being performed by each of them. But not after the agreement was cancelled, and all damages are sought for a period after and not before the time the contract was terminated. We sustain Points of Error IV and V.

Point of Error VII complains of the trial Court overruling its objections to the damage issue and its motion for judgment non obstante veredicto because the evidence of future profits from a new business were uncertain and speculative. This agreement was effective about nine months, from November 15, 1973, to September 11, 1973. During this time, Mesa Agro paid the Doves $28,976.27 for grazing cattle. Bobby Dove estimated his cost of operation during this period was about twice that amount. Of course, he estimated that as the operation continued there would be a substantial profit each year. For four years he estimated the net profit at $281,705.60 on the Tatum, New Mexico, pasture and $139,-044.60 on the Gaines County pasture. Of course, these figures were calculated at 5 head of cattle per acre per month at an average of 400 lbs. each for a period of six months a year, and an average of 1 head of cattle to every two acres for five months each year.

Our courts have consistently denied a recovery of damages where the profits claimed are too uncertain or speculative where the business is new or uncertain. Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); City of El Paso v. State Line, Inc., 570 S.W.2d 409 (Tex.Civ.App. — El Paso 1978, writ ref’d n.r.e.); Atomic Fuel Extraction Corporation v. Slick’s Estate, 386 S.W.2d 180 (Tex.Civ.App. — San Antonio 1964, writ ref’d n.r.e.).

In this case, the rule is applicable not only because- of a new business, and profits, if any, were very speculative, but also because the number of cattle to be pastured was not specified in the contract. Thus, any testimony as to how many cattle might be pastured at any given time were based on assumptions of the witness as to how many cattle could be pastured, and not how many would have been pastured had the contract not been terminated. Point of Error VII is sustained.

Each of the points which we have sustained requires that the judgment of the trial court be reversed and judgment rendered for the Appellant. Most of the other points relate to matters which if sustained would only result in a remand and it is not necessary that we consider them.

The Appellee has a cross-point attacking the jurisdiction of this Court because a cost bond was not filed within thirty days after the entry of judgment. We have previously considered that issue with regard to the motions to dismiss. For the reasons stated in that part of this opinion, the cross-point is overruled.

The judgment of the trial Court is reversed, and judgment rendered that the Appellee, R. C. Dove & Sons, have and recover nothing from the Appellant, Mesa Agro, a Division of Mesa Petroleum Co.


author: MILLER, Justice.

text:
    C. Marshall METZE, Appellant, v. Mark L. ENTMAN, et ux., Appellees.
    No. A2086.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 26, 1979.

      Michael R. Davis, Dickerson & Davis, Houston, for appellant.
    Timothy A. Beeton, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellees.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

This is an appeal from a summary judgment. We affirm the trial court.

The Entmans, plaintiffs below, filed suit against Mattchem, Inc., as maker, and Metze, as guarantor, on a promissory note balance of $5,849.58. Defendant Metze answered the suit by alleging waiver, estop-pel, release, and a general denial and by pleading that the suit be abated until resort was had upon the primary obligor, Mattch-em, Inc. He further cross acted against defendant Mattson on a related claim. Both sides conducted discovery. Certain facts were admitted by the defendant; others were subsequently deemed admitted by order of the court. Both sides served and answered interrogatories. On June 29, 1978, the plaintiff filed a motion for summary judgment to which was attached an affidavit made by the plaintiff setting out the facts and the original promissory note. No response was filed by the defendant. No order was rendered by the court on this motion. On September 26, 1978, the plaintiff filed his second motion for summary judgment. An affidavit by him was attached which incorporated the original promissory note by reference. Also attached and verified was a copy of the Shareholders’ Written Consent to Dissolve (Mattchem, Inc.) signed by C. Marshall Metze, Mark Entman and Patrick S. Metze, another shareholder, as well as a demand letter to Metze. On October 31, 1978, the defendant filed his affidavit unaccompanied by motion or other proof. On November 6, 1978, the court rendered judgment for the plaintiff and against the defendant in the amount of $5,849.58 plús 10% attorneys’ fees. From that judgment, defendant appeals.

In his first point of error the defendant asserts that the trial court erred in granting judgment against him as guarantor when plaintiff had, by agreeing to dissolve the corporate maker of the promissory note, thereby released the guarantor. That the plaintiffs consented to the corporate maker’s dissolution is an uncontroverted fact; defendant by implication is suggesting that such consent operates as a release as a matter of law.

The defendant signed the promissory note as a “guarantor” and thereby engaged that if the instrument was not paid when due that he would pay it according to its tenor without resort by the holder to any other party. Tex.Bus. & Comm.Code Ann. § 3.416 (Vernon 1968). The defendant’s obligation was therefore indistinguishable from that of a surety. Arnett v. Simpson, 235 S.W. 982 (Tex.Civ.App. — Amarillo 1921, writ dism’d), and his liability was so governed. It is an accurate statement of the law that that which discharges the principal from his obligation also exonerates the surety, Bridges v. Phillips, 17 Tex. 128 (1856), unless made with his consent and to his prejudice. Old Colony Insurance Company v. City of Quitman, 163 Tex. 144, 352 S.W.2d 452 (1961); Whitten v. Metro Bank of Dallas, 556 S.W.2d 383 (Tex.Civ.App.— Waco 1977, no writ) (emphasis ours). If it can even be said that the agreement to dissolve in any way operated as a release of the principal’s obligation, that agreement was executed by defendant with his full participation, knowledge and consent.

The first point of error is overruled.

In the second point of error, defendant complains that the trial court erred in rendering summary judgment as there was a material issue of fact raised by his affidavit. He identifies the issue as whether or not there was a waiver of the promissory note by execution of a new contract.

Effective January 1, 1978, an amendment to Tex.R.Civ.P. 166-A(c) (Vernon 1976) provides that “Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may serve opposing affidavits or other written response.” In this case defendant filed his affidavit with the clerk of the trial court. There is no indication in the record that leave of court was requested or obtained to file the instrument. The plaintiff, however, made no motion to strike the affidavit on the ground of the untimely filing. The defendant assumes in his argument that his affidavit was before the trial court and therefore part of the summary judgment proof in the case. However, the judgment recites the specific proof considered as:

“ . . . the pleadings, Defendant’s Answers to Plaintiff’s Requests for Admissions, the Court’s Order deeming certain answers to Requests for Admissions admitted as to Defendant C. Marshall Metze, the original note sued upon marked Exhibit ‘A’ and the affidavit marked Exhibit ‘B’, and the demand letter to Defendant C. Marshall Metze with signature card marked as Exhibit ‘C’, which are attached to Plaintiff’s Motion for Summary Judgment . . . ”

This recitation does not include the defendant’s affidavit. The trial court is charged with the duty only of considering the record as it properly appears before the court when the motion for summary judgment is heard. Superior Stationers Corp. v. Berol Corporation, 483 S.W.2d 857 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ). The issue in this case is then whether or not the trial court must consider an opposing affidavit which is not timely filed where no objection and motion to strike is made by the movant. We answer this in the negative.

Prior to the 1978 amendment to Tex. R.Civ.P. 166 — A (Vernon 1976) the rule read “The adverse party prior to the day of hearing may serve opposing affidavits.” It was well established that the provision was directory only so that it was well within the discretion of the trial court to allow opposing affidavits, Majestic Building Corp. v. McClelland, 559 S.W.2d 883 (Tex.Civ.App.— Houston [1st Dist.] 1977, no writ), or not to allow opposing affidavits to be filed on or following the day of the summary judgment hearing. Axeell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App. — Houston [1st Dist.] 1971, writ ref’d n. r. e.); Taylor v. Fred Clark Felt Co., 567 S.W.2d 863 (Tex.Civ.App. — Houston [14th Dist.] 1978, writ ref’d n. r. e). We think that the same discretion still lies with the trial court and in fact was emphasized by the addition of the words “Except by leave of court” in the amendment. Assuming, without deciding, that the untimely filed affidavit was sufficient to raise a fact issue, it was within the discretion of the trial court to determine if it would consider it or not. Given the recitation in the judgment, the trial court did not consider it. The Defendant has not met his burden of demonstrating that the court abused its discretion in so doing.

The second point of error is overruled.

The judgment of the trial court is affirmed.

      . Plaintiffs further alleged that the defendant and one Gary M. Mattson had violated Tex. Rev.Civ.Stat.Ann. art. 581-33 (Vernon 1964) through intentional misrepresentation and failure to disclose certain material facts in order to induce him into investing and purchasing stock in a certain corporation of which Metze was the majority stockholder and treasurer. The Plaintiff subsequently took a non-suit as to Mattson and the second cause of action.