author: SPURLOCK, Justice.

text:
    KA-HUGH ENTERPRISES, INC., et al., Appellants, v. FORT WORTH PIPE & SUPPLY COMPANY, Appellee.
    No. 17627.
    Court of Civil Appeals of Texas, Fort Worth.
    May 30, 1975.
    Rehearing Denied June 27, 1975.

      Dean Carlton, Dallas, for appellants.
    Law, Snakard, Brown & Gambill, Fort Worth, and Fulbright & Jaworski, and Daniel K. Hedges, Houston, for appellee.
   OPINION

SPURLOCK, Justice.

Ka-Hugh Enterprises, Inc., hereinafter referred to as “Ka-Hugh” brought suit against appellee, Fort Worth Pipe & Supply Company, hereinafter referred to as “Fort Worth Pipe”, for damages resulting from the alleged failure of an oil well casing installed in a well. Fort Worth Pipe sold and supplied to Ka-Hugh the casing used in the well. By amended petition additional plaintiffs were joined in the suit representing owners of the surface, royalty, and the mineral estate. Ka-Hugh alleged that it was the operator of the lease. It alleged that the casing supplied by Fort Worth Pipe was defective and that it collapsed causing the failure of the well. The plaintiffs’ amended original petition asserted that Fort Worth Pipe had breached its implied warranty of fitness by supplying casing that was not suitable for the purpose for which it was intended.

Fort Worth Pipe filed a counterclaim for the value of the pipe it had supplied and sold to Ka-Hugh.

The jury found that the pipe supplied was suitable for the purposes for which it was intended. Consequently, a judgment was rendered that the plaintiffs take nothing and that Fort Worth Pipe recover on its counterclaim.

We affirm.

Plaintiffs, by points of error Nos. 2 through 7, assert the court erred in submitting Special Issue No. 8 because there was no evidence, the evidence was insufficient, it was multifarious, unfair and confusing, did not name the agent involved, involved a question of law, and did not inquire into authority or scope of authority.

Plaintiffs assert that the casing sold to it by Fort Worth Pipe was defective and therefore the defendant breached its implied warranty of fitness for the purpose for which the casing was sold. Special Issue No. 2 and the jury’s answer thereto is as follows: “Do you find from a preponderance of the evidence that the casing furnished was not suitable for the purposes for which it was intended? Answer: It was suitable.”

Thus, on the above controlling issue the jury found that the pipe was suitable for its intended use.

At the conclusion of the evidence the parties stipulated that in the event the jury should find that the casing sold and furnished by Fort Worth Pipe to Ka-Hugh was not suitable for the purpose for which it was intended, then Fort Worth Pipe would be entitled to recover nothing. They further stipulated as follows:

“It is further stipulated and agreed that should the Jury find that such casing was suitable for the purposes which it was intended, then the said Fort Worth Pipe and Supply Company is entitled to recover of and from the said Ka-Hugh Enterprises, Inc. and Norman Levinson, jointly and severally, the sum of $14,193.29, plus interest at six percent per annum on such judgment from the date of such judgment until the date paid, plus foreclosure of its material-man’s lien as recorded in Volume 259, Pages 234 through 239, in the Mechanic’s Lien Records of Nueces County, Texas.” The parties recognized what is apparent, that is, that Issue No. 2 is the controlling issue.

Special Issue No. 8 is as follows: “Do you find from a preponderance of the evidence that prior to July 1, 1971, Ka-Hugh Enterprises, Inc., acting by and through its agent, employees and representatives, accepted the terms and conditions stated on Defendant’s invoices and delivery tickets? Answer: We do.”

The record reflects that Mr. Billy J. Neal was employed by Ka-Hugh to completely supervise the final stages of the drilling operations. Mr. Neal is a consulting petroleum engineer. There is no dispute that he was in complete charge of the drilling operations during the period of time here involved. He wrote the specifications for the casing, he was in charge of acidizing and all the other operations necessary to determine whether the well was a producer and, if so, to bring the well in as a commercial producer. He ordered the pipe involved. It was delivered to the location as directed. Delivery tickets were left in the bunkhouse. The same day Mr. Neal inspected the pipe involved. He inspected the delivery tickets and placed them in his file. Shortly thereafter invoices were mailed out from Fort Worth Pipe as had been the custom between Ka-Hugh and Fort Worth Pipe over a period of time prior to this occasion. These invoices contained language indicating that there was no warranty on the pipe and it was accepted with that understanding. No objection was ever made to the terms of the limitations of warranty up to the time of trial.

The trial court is authorized to submit the issue in the language quoted under the authority of Rule 277, Texas Rules of Civil Procedure, under the facts in this case.

We overrule each of these points of error for the additional reason that the alleged errors complained of were not properly preserved for appellate review.

Rule 272, T.R.C.P., prescribes the procedure that must be followed in order to preserve for appellate review the court’s ruling on an objection made to a court’s charge. It provides that objections to a court’s charge that are not made and presented and preserved as prescribed in that rule are waived. Marshall A. Hines, et al. v. Mancle T. Pointer, et al., 523 S.W.2d 733 (Fort Worth Civ.App., May 9, 1975, not yet reported).

Rule 272 in substance provides the following: The objections must be presented to the Court in writing before the charge is read to the jury. When the written objections have been so made and presented, if the Court overrules them, he shall endorse his rulings on them and sign them officially. When so endorsed and signed the instrument will constitute a sufficient bill of exceptions to the ruling. The requirement that the objections to the charge shall be in writing will be sufficiently complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court and opposing counsel before the charge is read to the jury and are later transcribed and the court’s ruling and official signature endorsed thereon and filed with the clerk in time to be included in the transcript.

In this case the defense counsel dictated his objections here complained of to the court reporter who later transcribed them and included them in the statement of facts. Counsel for the parties attached to the statement of facts an agreement that it was a full transcript of the evidence given during the trial and the court reporter affixed his certificate to the statement of facts. The trial judge did not sign the statement of facts.

The record does not show that these objections, after being reduced to writing, were presented to the trial judge so that he could see them in writing and endorse his ruling thereon, and sign them officially. They were not filed with the district clerk and are not included in the transcript. Because these requirements prescribed by Rule 272 were not complied with, defendants did not preserve the matters complained of in their first 7 points for appellate review. Their objections to the charge were waived.

Cases that support our ruling on defendant’s first 7 points of error are: Kettle v. Smircich, 415 S.W.2d 935 (Corpus Christi Civ.App., 1967, no writ hist.); State v. Turboff, 431 S.W.2d 953 (Houston Civ.App., 1st Dist., 1968, no writ hist.); Big Three Welding Equipment Company v. Roberts, 399 S.W.2d 912 (Corpus Christi Civ.App., 1966, ref. n. r. e.); and Maryland Casualty Co. v. Golden Jersey Creamery, 389 S.W.2d 701 (Corpus Christi Civ.App., 1965, ref. n. r. e.).

The holding we have made on these points, under the facts of this case, is not changed by the provisions of Sec. (7) of Rule 372, T.R.C.P., as amended in 1967. See on this State v. Turboff, supra.

Plaintiffs, by their points of error Nos. 8 through 14, assert that the trial court erred in refusing to permit plaintiffs to file a trial amendment alleging strict liability, whether Fort Worth Pipe was engaged in selling casing, in refusing to submit special issues on the theory of strict liability, in failing to submit issues on whether or not the product was unreasonably dangerous to the user, whether or not the casing reached the user without substantial change, whether the defective casing was the proximate cause of the well failure, and the granting of a partial instructed verdict.

The original petition was filed June 12, 1972, and alleged that the casing purchased from Fort Worth Pipe collapsed causing the loss of the hole, that it was the result of a defect in the casing and that the casing was not suitable for the purpose for which it was sold. On November 6, 1973, plaintiffs filed an amended petition alleging substantially the same as in its original petition. On April 30, 1974, plaintiffs filed a supplemental petition asking for the recovery as originally prayed for. The case proceeded to trial on July 15, 1974, with no additional pleadings having been filed by plaintiffs. Toward the end of the trial, and after the plaintiffs had rested, they attempted to file a trial amendment seeking recovery on the theory of strict liability. The court refused to allow the amendment ruling that it was “untimely and too late.”

The trial court is vested with discretion to deny or allow trial amendments under the terms of Rule 66, T.R.C.P. The order of the court denying the filing of a trial amendment will not be set aside in the absence of a clear showing that the court abused its discretion. Lord v. Insurance Company of North America, 513 S.W.2d 96 (Dallas Civ.App., 1974, no writ hist.).

The court did not abuse its discretion in not allowing the filing of the trial amendment.

The court is not required to submit issues raised by the evidence where there is no pleadings to authorize a submission of such issues. Parker v. Gulf, Colorado & Santa Fe Railway Co., 401 S.W.2d 265 (Tyler Civ.App., 1966, no writ hist.). Since plaintiffs failed to plead strict liability, it was not error for the court to refuse to submit issues in accordance with such theory-

It was admitted that Fort Worth Pipe was engaged in selling casing and that such casing was delivered to Ka-Hugh without substantial change; therefore, no issue was required on admitted facts.

The record is silent as to whether there was a partial instructed verdict. Plaintiffs have offered no argument or authorities to support this point, thereby waiving it. Bowen v. East Texas Hospital Foundation, 400 S.W.2d 843 (Tyler Civ.App., 1966, ref., n. r. e.).

We overrule each of these points.

Plaintiffs, by their points of error Nos. 15 through 17, allege error of the court in refusing to admit into evidence logs from wells in the area where plaintiffs’ well was drilled.

These logs were offered in evidence for the purpose of showing the potential recovery of oil had the well been a good commercial producer. This evidence was offered on the issue of damages.

Since the jury found there was no liability on the part of Fort Worth Pipe, then the exclusion of evidence pertaining to damages could not affect the jury’s verdict on the issue of liability. Therefore, when the jury found that there was no liability, then the erroneous exclusion of evidence, if such evidence was erroneously excluded, on the issue of damages was immaterial and harmless. Rule 434, T.R.C.P.; Montgomery v. Pagan, 324 S.W.2d 251 (Waco Civ.App., 1959, no writ hist.).

In their point of error No. 18 plaintiffs contend that the trial court erred in admitting evidence showing that the witness Le-vinson had been convicted of filing a false income tax return in 1973 because same was offered in evidence solely for the purpose of prejudicing plaintiffs’ case. We overrule this point.

Norman Levinson, as an individual, owned an interest in the lease here involved. He was also president of Ka-Hugh. After the pipe had been delivered to this particular well Levinson signed a written guaranty guaranteeing this debt and some prior unpaid debts owed to Fort Worth Pipe. Levinson was not present during the trial. Portions of his deposition were offered in evidence by the defendant.

Levinson was questioned about the amount of the debt owed to Fort Worth Pipe. He testified that this debt was not paid because the pipe was defective. He further testified that although he had had the delivery tickets and invoices in his possession over this long period of time he was not aware of anything concerning them except the quantity of pipe and the price. The invoices on their face showed that the pipe was sold subject to all the terms, provi-, sions and conditions set out on the reverse side of the delivery tickets and the pipe was received in good order and condition. The reverse side of the delivery tickets in paragraph 9, in bold type, contained the terms of the sale stating that there were no warranties extending beyond the description on the face of the invoice, no warranty of merchantability, and that all goods were sold “ ‘as is’ ”. It further provided that any claim for breach of warranty must be made within 90 days and the liability of the seller was limited to the cost of repair or an obligation to replace the merchandise.

Levinson further testified that he had received delivery tickets and invoices from this company before but had never read the terms and conditions set forth in the invoice. He had never protested these terms to the seller. He was also questioned about the knowledge of the terms of the delivery tickets and invoices that may have been known by Ka-Hugh’s general counsel and secretary of the corporation, its engineers, and other executives of Ka-Hugh. He was also questioned about not paying prior bills incurred with the defendant. He was questioned thoroughly about the agency and scope of authority of the petroleum engineer in charge of this well and other officials of the company. He also admitted that he owned Graham Royalty, which had an interest in the lease, and is a named plaintiff.

After Levinson’s testimony was read to the jury the court admitted into evidence an exhibit offered by the defendant showing that on July 31,1973, Norman Levinson pleaded “not guilty” to income tax evasion and was found guilty to subscribing to false tax returns. He was sentenced to 3 years on count one and 3 years on count two, to run concurrently. Plaintiff objected to this exhibit on the grounds that it was immaterial and was not adverse to the plaintiff, Levinson did not testify except by deposition, its admission into evidence was an abuse of discretion and was highly prejudicial, and such conviction was not sufficient for impeachment. The method of proving the conviction was not challenged.

Rule 182, T.R.C.P., expressly provides that an adverse witness may be examined by the party calling the witness, is not bound by such testimony, and shall have the right to impeach such witness and the testimony of such witness.

Some courts have placed limitations upon this rule but none of these limitations apply to the facts in this case. Rule 182 generally has been construed to apply to parties named in the petition and answer and to certain agents of the named corporate party. Even in cases applying a strict construction to the rule courts have indicated that the named parties to the suit may be impeached. Wheatheart Feeders, Inc. v. Pletcher, 453 S.W.2d 902 (Amarillo Civ.App., 1970, writ dism.). For a discussion of the applicable law see Yol. 25, Baylor Law Review, p. 283, “Adverse Examination: A Consolidated Rule For The Hostile Witness in Texas.”

The record evidence of a felony conviction involving moral turpitude, that is not too remote in time, is a proper method of impeaching the incredibility of a witness. The Texas Supreme Court in Compton v. Jay, 389 S.W.2d 639 (Tex.Sup., 1965) has held that a witness may be impeached by proving his conviction of a crime involving moral turpitude. Wigmore’s Treatise on Evidence, 3rd Ed., Sec. 926, states that forgery, cheating, and the like are crimes involving moral turpitude. We overrule this point.

Plaintiffs, by their points of error Nos. 19 and 20, assert that the court erred in admitting into evidence the opinion evidence of Cohen as to the cause of the well failure over the objection that it was based on information not in evidence, and the court erred in refusing to strike the opinion evidence of Cohen.

The witness Neal had testified in great detail concerning his attempt to make a commercial producer out of the well. He was the petroleum expert in charge of this phase of the operation. He testified that various electric logs were run, the results of such tests, and the location of the sand where oil was located. The surface casing and bottom of the well were cemented. Casing was run and the casing was perforated at the area indicating there was oil producing sand. Some oil was produced. In order to increase the production of oil 500 gallons of acid was injected into the well under high pressure. After the well was acidized a pump stuck in the well. Tubing had also been run. Hurricane Beulah had blown in and the well site was covered with water. Acid was allowed to remain in the well for 4 weeks when normally it would have been extracted rather quickly. A pump for the purpose of circulating the well was not brought in, probably because of the high water. Instead a swabbing operation took place and thereafter sand and shale appeared in the well. The 9th swab became stuck. The well then produced salt water.

There was other evidence in the record that normally the frio sand, that was here involved, is not acidized. Normally the sand and shale would be washed out through the circulating process. This and other evidence was in the record from various witnesses and exhibits.

Defendant’s witness, Mr. Cohen, a petroleum engineer, was asked a hypothetical question and asked to assume facts that were in the record and to base his opinion thereon. He did so and expressed the opinion that the acid had attacked the lime substance in cement and had created channels which had permitted the salt water and shale to enter the casing and prevented the well from being a commercial producer.

On cross-examination the witness testified that he had examined depositions of witnesses who testified during the trial but whose depositions were not read to the jury, and had examined other material. He testified that he had read everything that was submitted to him but did not testify, in answer to the hypothetical question, that he had taken anything else into consideration in answering the question except the facts stated in the hypothetical question. No motion to strike the testimony of Cohen was made by plaintiffs. Thereafter, Cohen testified at length concerning his opinion as to the cause of the well failure as being the reaction of the acid, described above, and other errors committed by Ka-Hugh’s engineer during the course of attempting to bring the well in.

On redirect examination, toward the end of Cohen’s testimony, he testified that in his opinion the cause of the well’s failure was the tubing became stuck because of sand and shale which had entered the casing because the acid job broke down the cement and caused channeling. This opinion was based upon the facts given him by means of a hypothetical question based upon evidence properly in the record. These facts had been detailed to him early in his testimony. The same objection was made after the witness answered the question. No motion was made to strike his answer nor for the Court to instruct the jury not to consider the answer.

It was stated in Battles v. Adams, 415 S.W.2d 479 (Austin Civ.App., 1967, ref., n. r. e.) that, “Since the objection to this testimony was made after its admission and no motion to strike having been made, the objection was waived and the testimony was before the court for all that it is worth.”

This Court in the case of Poole v. State Highway Department, 256 S.W.2d 168 (Fort Worth Civ.App., 1953, writ dism.), speaking through Chief Justice Massey, stated that: “Where testimony is in the record before objection thereto is made and sustained and no motion is made to strike it out, it is before the appellate court for all it is worth. 3-B Tex.Jur., p. 294, § 877. Likewise, testimony before the jury before objection thereto is made and sustained is still before them until they are instructed not to consider it.” See 56 Tex.Jur.2d 518, “Trial”, Sec. 174 (1964), “Motions To Strike . Necessity”, for supporting authority.

We overrule each of these points.

Each of appellants’ points of error has been considered and each is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Linda Lee CRAVENS, Executrix of Estate of Callie Ann Chick, Deceased, Appellant, v. Randy CHICK et al., Appellees.
    No. 17606.
    Court of Civil Appeals of Texas, Fort Worth.
    April 18, 1975.
    On Rehearing May 30, 1975.

      Henry & Hatcher, Jim J. Hatcher and John Atchison, Gainesville, for appellant.
    Julian J. Smith, Stark & Barnhart and Richard S. Stark, Gainesville, for appellees.
   OPINION

MASSEY, Chief Justice.

This is an appeal from a judgment rendered in a will case setting aside the order admitting to probate the codicil which, as a part of the “entire will”, had been formerly ordered filed. It was Randy Chick et al., who were the plaintiffs seeking to set the same aside, and the defendant was Linda Cravens, Executrix.

In the trial court the judge removed the case from the jury on the theory that there were no issues of fact to be determined, and rendered judgment setting aside the prior order of admission to probate. Defendant Executrix appealed.

We reverse and remand.

Plaintiffs’ claim, pursuant to their reliance on the earlier drawn formal will, was that there had been no intent by Executrix that the holographic instrument in form of a codicil constitute an effective legal instrument. It was by the holographic instrument prepared in Testatrix’ own handwriting that she purportedly “took away” that which she had granted to the plaintiffs by the instrument earlier drawn.

In passing we note that the earlier drawn will was prepared by attorneys at Fort Smith, Arkansas, and delivered to the deceased in Gainesville, Texas where she executed it. She retained it in her home. So far as the record would reflect the Testatrix never did return to see the Arkansas attorneys, though even after the date of the holographic instrument she visited in the vicinity where their office was located. The later drawn holographic instrument was apparently seen by no one prior to Testatrix’ death. It was found after she had died. It was delivered, along with the earlier formal will, to an attorney who in turn tendered both for probate. Upon hearing, the two instruments were admitted to probate as Testatrix’ will.

In Texas the proponents of the admission of a will to probate must, as a predicate to such entitlement, prove to the satisfaction of the court that the testator executed the same with the formalities and solemnities and under the circumstances required to make the instrument a valid will. 61 Tex.Jur.2d, p. 165, “Wills”, Sec. 64, “In general; Burden of proof and presumptions.”

In construction of a will testamentary intent is the first concern of the court. 61 Tex.Jur.2d, p. 265, “Wills”, et seq. under “C. Ascertainment of Intent of Testator”. An instrument is not a will unless it is executed with testamentary intent. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 733 (1955). That such be evidenced is essential to reception of the instrument for probate. The law is the same if there be a codicil as a part of the will. There must be evidence of some character, ordinarily to be found in the instrument itself. At the admission stage in probate proceedings no instrument should be admitted which positively fails to evidence dispositive intent. If it does not, parol evidence is not admissible to supply that intent. But if there be ambiguity such may by parol evidence be resolved favorably before it is admitted to probate as a will. In any event it would appear that upon entry of an order admitting of the will to probate, not appealed from, the propriety of the proceedings at such state would not constitute a subject of permissible complaint upon subsequent suit in contest thereof.

A codicil in form of a holographic will, not executed according to formalities requisite to other forms of wills, but executed in accordance with legal requirements relative to holographic wills, must be accorded the same credit as would be the case had there been greater formality. In other words a prior will in any form may be revoked or amended by a subsequent holographic codicil. In Re Estate of Brown, 507 S.W.2d 801 (Dallas, Tex.Civ.App., 1974, no writ history).

The order of the court decreeing admission of instrument or instruments to probate as the will of a decedent is an appealable order; and as applied to such Notice of Appeal must be given or filed within 10 days. Probate Code, Sec. 28, V.A. T.S., “Right of Appeal"; Texas Rules of Civil Procedure, rule 332, “Notice”. (There has been a recent change in the law relative to courts to which appeals in such matters are to be taken. The change may be disregarded as applied to the instant case, it having been a case which in all respects is controlled by the law in effect prior thereto.)

Here there was no appeal from the order admitting the will (including the codicil) to probate.

It was almost two years thereafter that suit was filed to set aside that order.

With certain qualifications stated, it is provided by law that after a will has been admitted to probate an interested person may, within a period of two years after the admission order, institute a suit to contest the validity thereof and to set the prior order aside. Probate Code, Sec. 93, “Period for Contesting Probate”.

Where there is such a suit, and it is such a case which is presented to us, the issues are tried de novo. 61 Tex.Jur.2d, p. 493, “Wills”, Sec. 336, “Review of probate court proceedings”. But that does not mean that the burden of proof is the same. Contrarily, the burden of proof is shifted to the contestant. And until such time as the contestant has, by the decree of the court, been successful in setting it aside, the prior order persists as valid and controlling, with the force of a judgment decree.

Indeed, should the contestant institute a suit to set aside a prior order admitting a will to probate and not offer evidence in support of the grounds on which he seeks adjudication that the will was invalid and inadmissible to probate at the hearing of his contest, the law is that he has proved no cause of action and the prior order which admitted it as the will is not to be set aside. 61 Tex.Jur.2d, p. 470, “Wills”, Sec. 320, “Abandonment of right to contest will.”

The burden in respect to introduction of evidence on trial was therefore upon the contestants-plaintiffs. The proponents were not obliged to introduce any evidence. Where relied upon by a contestant such matters as testamentary incapacity, undue influence, improper execution, and revocation must be proved by him. 61 Tex.Jur.2d, p. 481, “Wills”, Sec. 330, “Evidence — Presumptions and burden of proof.” The same rule of law applies where the contest is on the question of testamentary intent.

At the trial contestants-plaintiffs introduced evidence in support of some, but not all, of the grounds under which they predicated their attack upon the codicil. Their proof was directed toward establishing that the Testatrix did not, by preparation of the purported codicil, intend that it be a true codicil to her earlier will, nor did she intend thereby to effect revocation of any bequest made by her formal will, earlier made.

In order for plaintiffs to prevail by introduction of such evidence it would be required that questions thereby raised be resolved by the jury by special issues upon which plaintiffs would bear the burden of proof. The situation is not one where plaintiffs’ right to prevail could be said to have been established as a matter of law. There was no admission of any kind by the proponents.

In this case the codicil was sufficiently ambiguous upon the issue of testamentary intent to justify, even at the earlier admission stage, the consideration of parol evidence. As hereinabove indicated there would be the conclusive presumption in any event that there was not procedural impropriety whereby the will and codicil were initially admitted, that issue being foreclosed where the trial is upon a subsequently filed will contest suit. (It necessarily follows that plaintiffs were privileged to attack it by parol evidence even had it been unambiguous.) That there was testamentary intent is presumed, for purposes of this trial, for there had been prior admission to probate by earlier order of the court. There might have been, pursuant to entry of the order admitting it to probate, extrinsic proof affirmatively showing the Testatrix’ animus testandi. Anyway a presumption that there had been is not rebuttable, though at the trial of the will contest suit contestant may prove, if he can, that there was no witness at the time of the proceeding or later able to prove Testatrix’ animus testandi. Thus, under their pleadings, the burden was upon the plaintiffs, as contestants, to raise the issue by their evidence and to obtain a finding by the jury by a preponderance of the evidence that there had not been testamentary intent by Testatrix by the holographic instrument. 21 A.L. R.2d, 319, Annotation: “Admissibility of extrinsic evidence upon issue of testamentary intent”; 57 Am.Jur., p. 580, “Wills”, Sec. 874, “ — Testamentary Intent”.

Plaintiffs’ evidence raised the issue of the lack of testamentary intent. As contestants they were entitled to have the same resolved by the jury. They were not, however, entitled to have such issue resolved in their favor as a matter of law. Only if the issue were resolvable as a matter of law could the plaintiffs maintain the judgment rendered for them. Therefore the trial court erred in granting the instructed verdict in favor of plaintiffs.

Judgment is reversed and the cause is remanded.

OPINION ON MOTION FOR REHEARING

Plaintiffs/appellees, who had their judgment reversed, with the cause remanded pursuant to our original opinion in the case, complain because we failed to rule on their cross-point complaining of error by the trial court in the admission of evidence.

Though the evidence had no bearing upon the trial court’s action in rendering judgment for them on the former hearing they fear that reoccurrence might result to their prejudice.

In connection with the evidence admitted we believe it wise to take notice that it was not evidence which had been taken by the Probate Court at time of the hearing of the initial application to probate a will; where it should have been committed to writing, subscribed and sworn to in open court and filed by the clerk, except by agreed or compelled order. See Probate Code, Sec. 87, “Testimony to Be Committed to Writing”. See also Sec. 89, “Action of Court on Probated Will” where it is provided that where there is compliance with Section 87 the record of such evidence may be introduced upon the trial of the same matter in any other court.

Here the evidence admitted was the testimony of a party to the suit who had been a witness on the will contest case filed in the county court long after the will and codicil had been admitted to probate. The admissibility of such testimony would be by general rules uncomplicated by those referred to in the above paragraph. Here the admitted testimony was of a witness who had voluntarily submitted herself to the jurisdiction of the court when she made herself a party; she was not dead; and her failure to appear was not shown to have been the result of any action by a party adverse to her. Furthermore the Statement of Facts from which her testimony was read was never authenticated and constituted hearsay. There was no proper predicate laid for admissibility of any missing witness’ prior testimony and, the testimony itself amounting to mere hearsay, there was error in admitting it in any event.

However, plaintiffs are not benefitted in any way on present appeal by our holding on their cross-point.

The motion for rehearing is overruled.


author: WALTER, Justice.

text:
    Doyle L. BRIDGES et ux., Appellants, v. PITZER REALTORS, INC. and Dorothy Watkins, dba Stephenville Realty, Appellees.
    No. 4787.
    Court of Civil Appeals of Texas, Eastland.
    May 16, 1975.
    Rehearing Denied June 13, 1975.
    Ben D. Sudderth, Sudderth, Woodley & Dudley, Comanche, for appellants.
    Scott D. Allen, Coan & Allen, Stephen-ville, for appellees.
   WALTER, Justice.

Pitzer Realtors, Inc., and Dorothy Watkins recovered a judgment against Doyle L. Bridges and Anna C. Bridges for a commission on a proposed sale of real estate plus attorneys’ fees. The Bridges have appealed.

The plaintiffs secured a buyer. In the contract of sale from Bridges to the proposed purchaser, we find the following:

“The purchase price is $23,500.00 payable as follows: cash, of which Buyer has deposited with the undersigned agent $1,000.00 as part payment, receipt of which is hereby acknowledged by agent. This contract is conditioned upon Purchaser assuming existing V.A. First Lien on property at 5¾'⅞ interest provided owner can obtain Release of liability on loan.”

In Bridges’ answer they pleaded that Pit-zer and Watkins came to their house on a Saturday afternoon and informed them that they had a purchaser for their house. The proposed sale differed from the listing agreement in that the purchaser wanted to buy their equity and assume the indebtedness instead of paying cash as set forth in the listing agreement. The Bridges alleged the Veteran’s Administration Office could not be contacted on Saturday afternoon to determine their liability in making such a sale and how their V.A. rights would be otherwise affected. They alleged:

“Defendant Doyle L. Bridges mentioned and discussed same with Betty Whitaker and Rob Pitzer and were urged by Whitaker and Pitzer to go ahead and sign the contract and told that they would not be bound thereby pending a determination of the matters sought to be determined from the Veterans Administration. Defendant Doyle L. Bridges signed the contract under instructions to his agents, Rob Pitzer and Betty Whitaker, that he was not to be bound by such contract until he called the Veterans Administration during the following week and find out if a sale under the terms set out in such contract, rather than by cash, would cost him any rights under the Veterans Administration. It was so agreed between the parties and Rob Pitzer specifically stated that the actions of the Defendant, Doyle L. Bridges, on such date was not binding and that the contract would not be honored until Defendant Doyle L. Bridges had contacted the Veterans Administration and made a determination concerning matters that he desired to be discussed with the Veterans Administration.
During the week following the 18th of August, 1973, Defendant Doyle L. Bridges did contact the Veterans Administration and was informed that he would lose some benefits if he sold his equity and allowed the purchaser to assume the indebtedness and was strongly advised and admonished by the Veterans Administration to sell the property for cash. This information was communicated to Rob Pitzer and Rob Pitzer was advised to either sell the property for cash or take it off his listing. Shortly thereafter, Defendant Doyle L. Bridges received the keys to the house in the mail and the signs that had been erected by the Plaintiffs were removed from his property.
Defendants would show that as a result of the above ^and foregoing expressed agreements, that any contract of sale was conditional only and was never delivered to any prospective purchaser and remained in the hands of the Plaintiffs, who were the agents for these Defendants, and that these Defendants never became bound by the terms thereof.”

Pitzer and Watkins excepted to such pleadings because the pleadings would place before the jury evidence that is barred by the parol evidence rule and because the Bridges were seeking to modify a written contract by oral evidence. Pitzer and Watkins also asserted that such pleadings were hearsay, inflammatory and improper.

Rule 45, Texas Rules of Civil Procedure, provides that all pleadings shall be construed to do substantial justice. Rule 91, T.R. C.P., provides that a special exception shall point out the defect omission or other insufficiency in the allegations of the pleadings to which an exception is directed.

It is a well known rule that in passing upon special exceptions we must accept as true all facts contained in the pleadings to which a special exception is directed.

We assume the allegations in Bridges’ answer to be true. Therefore, we must find that at the time the contract was physically delivered to Pitzer and Watkins it was a conditional delivery. Bridges did not intend to make the instrument an enforceable obligation until they contacted the Veteran’s Administration Office. In Brewer v. Tedford, 447 S.W.2d 479 at page 483 (Tex.Civ.App.—El Paso 1969, writ ref. n.r.e.) the court said:

It has been held that conditionally delivered instruments do not become effective until the condition occurs. 17 C.J.S. Contracts § 64, pp. 738, 739 ; 32A C.J.S. Evidence § 977, p. 459. We think the following quotation from 13 Tex.Jur.2d 228-29, Contracts § 83, is clearly in point and bears directly on the case before us:
‘Clearly, where there is a specified condition attached to the delivery of a written contract, delivery of the instrument will not become absolute, nor the agreement effective, until the happening of the condition * * *
‘The conditional delivery of a written instrument involves a question as to the mutual intention of the parties. This question may properly be resolved by the jury. Furthermore, when determining the existence of such a delivery, the condition itself, together with the true facts and circumstances of the case, may be shown by parol evidence.’

It has also been held that this basic rule of contract law is applicable to contracts for the sale of land. 91 .C.J.S. Vendor and Purchaser § 42, p. 894. In the last citation, the text points out that a delivery of a written contract for the sale of realty on condition is not a complete delivery until the condition has been fulfilled. See also Alaga v. Stubblefield, Tex.Civ.App., 174 S.W.2d 627, and 13 Tex.Jur.2d 228, 229, Cont-acts.”

In 17 C.J.S. Contracts § 64, p. 738, it is stated:

“Generally delivery is an essential element of the execution of a contract in writing, and such a contract is not binding unless it is delivered. Delivery may be made on condition, but, since a contract which has not been unconditionally delivered ordinarily is not binding, a delivery on condition is not complete and the parties are not bound until or unless the condition is fulfilled.”

The cases cited by appellees in support of the court’s action in sustaining the special exceptions deal with cases which properly announce the rule that parol evidence cannot be received in evidence to establish an oral condition relating to the contract if the condition is inconsistent with the terms of the written instrument in the absence of a pleading of fraud, accident or mistake. In the case at bar the conditional delivery of the contract as pleaded by the Bridges is not inconsistent with the terms of the written instrument. We think the cases of Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 (1946), and Brewer v. Tedford, 447 S.W.2d 479 (Tex.Civ.App.—El Paso 1969, writ ref. n.r.e.), support this conclusion.

We are compelled to hold that the trial court erred in sustaining the exceptions. The judgment is reversed and the cause is remanded.


author: GUITTARD, Justice.

text:
    Burt TROYAN, Appellant, v. SNELLING & SNELLING, INC., Appellee.
    No. 18578.
    Court of Civil Appeals of Texas, Dallas.
    May 29, 1975.

      Reagan M. Martin, Martin, Harrison & Withers, Dallas, for appellant.
    Robert H. Mow, Jr., Corbet F. Bryant, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
   GUITTARD, Justice.

In this suit by a franchiser against a former licensee to enforce a covenant against competition, the franchiser’s right to sue was challenged on the ground that it was a foreign corporation doing business in Texas without a certificate of authority issued by the Secretary of State. The licensee also defended on the ground that the suit was barred by laches. The judge allowed the trial to proceed before a jury, but after verdict he declined to render judgment for plaintiff unless a certificate of authority was produced within thirty days. Plaintiff produced the certificate within that time, and the court then rendered judgment granting a permanent injunction. Defendant appeals. By cross-point, plaintiff complains that the trial court erred in requiring it to produce the certificate of authority.

We hold that the trial court was correct in allowing the trial to proceed and in rendering judgment for plaintiff after the certificate was produced. We also hold that plaintiff’s suit was not barred by laches, since detriment to defendant by reason of delay in bringing the suit was not established by the jury’s verdict or by undisputed evidence. We overrule plaintiff’s cross-point because after plaintiff presented the certificate to the court and the court granted the injunction prayed for, the court’s requirement that the certificate be obtained became moot, in so far as the present case is concerned.

1. Right to Maintain Suit

Defendant argues that plaintiff’s petition shows on its face that the present cause of action arose out of intrastate business done without a certificate of authority as required by Tex.Bus.Corp.Act Ann. art. 8.18 (V.A.T.S.1956) and, consequently, that the court erred in allowing the trial to proceed until plaintiff obtained and presented such a certificate of authority or established by evidence that it was not required to do so. We cannot agree.

In the first place, we conclude that the requirements of article 8.18 were satisfied by presentation of the certificate before entry of final judgment. The material provisions of the statute are as follows:

A. No foreign corporation which is transacting, or has transacted, business in this State without a certificate of authority shall be permitted to maintain any action, suit, or proceeding in any court of this State (whether brought directly by the corporation or in the form of a derivative action by a shareholder) on any cause of action arising out of the transaction of business in this State, until such corporation shall have obtained a certificate of authority. .
B. The failure of a foreign corporation to obtain a certificate of authority to transact business in this State shall not impair the validity of any contract or act of such corporation, and shall not prevent such corporation from defending any action, suit or proceeding in any court of this State.

By its express terms, this statute does not impair the validity of any contract made by a corporation which has failed to obtain a certificate of authority to transact business in this state. Such a corporation is forbidden from maintaining suit “until such corporation shall have obtained a certificate of authority.”

The comment of the bar committee which drafted the statute explains that the purpose of this article was to abolish' the former rule that a foreign corporation could not sue in the Texas courts, even after securing a permit, on a cause of action arising out of intrastate business transacted in Texas at a time when such corporation had not secured a permit, and to permit such a suit after the defending corporation had obtained a certificate of authority. Tex.Rev.Civ.Stat.Ann. art. 8.18, comment (Vernon 1956). This change in the law was recognized in Ammann v. St. Joe Paper Co., 341 S.W.2d 700, 701 (Tex. Civ.App.—San Antonio 1960, per Pope, J., no writ). Thus, it appears that the primary objective of the present statute is to encourage such a corporation to obtain authority rather than to penalize it for doing business without authority. That objective was accomplished in this case by requiring production of the certificate before entry of judgment. No useful purpose could have been accomplished by postponing the trial.

In the second place, we conclude that the judge had discretion to proceed with the trial without proof of plaintiff’s capacity to sue because of defendant’s delay in raising the question. The record shows that defendant filed an original and two amended answers without raising any question of plaintiff’s lack of authority to sue. Defendant announced ready for trial on the morning of August 26, 1974, and the trial began. Immediately before the noon recess, after voir dire of the jury panel, defendant presented a “motion to dismiss” and also a “motion to abate,” raising for the first time the contention that plaintiff had no right to maintain the action without a certificate of authority. Plaintiff objected to these motions on the ground, among others, that they were not timely filed. The judge agreed that the motions were not timely filed. He observed that he considered them “an imposition on the docket of this court” in view of the fact that defendant had waited to present them until after the court had excused counsel in other cases called for that day and was, therefore, unable to begin another trial. In response, counsel for defendant admitted that he had “always known” that plaintiff was not qualified to do business in Texas, but he explained that if he had raised the matter earlier the plaintiff “could have filed and could have qualified” and thus “the right of this defendant to insist that the foreign corporation be qualified would be gone.” The judge overruled the motions, but stated that he would reconsider the matter. The trial then proceeded and the jury returned a verdict favorable to plaintiff.

Afterward, on September 18, the court entered an order reciting that the court had reconsidered defendant’s plea in abatement and that such plea was granted to the extent that entry of final judgment was postponed for thirty days. The order provided further that on failure of plaintiff to file within that period a certificate of authority to do business in Texas, the cause would be dismissed, but that on filing of such a certificate a final judgment granting a permanent injunction would be entered. The next day, September 19, plaintiff filed an affidavit showing compliance with the court’s order and also a certificate of authority for plaintiff to transact business in the state signed by the Secretary of State. Accordingly, on September 20, the judge signed the final order granting the injunction.

We conclude that the judge acted well within his discretion. To dismiss the suit or postpone the trial until plaintiff had filed its certificate of authority would only have delayed the disposition of the controversy. Since defendant announced ready for trial and deliberately refrained from raising the question until after the trial had already begun, he is in no position to complain that the court was not authorized to proceed with the trial. His rights were fully protected by the court’s requirement that the certificate be filed before entry of final judgment. We commend the judge for meeting this dilatory maneuver in a manner that avoided disruption of the docket, that was fair to both parties, and yet accomplished the purpose of the statute.

2. Laches

Defendant contends that the defense of laches was established by the jury’s affirmative answer to issue number ten, which was to the effect that plaintiff failed to act with reasonable diligence to prevent defendant from engaging in a similar business. No issue was submitted concerning any detriment to defendant from plaintiff’s failure to act with reasonable diligence, but defendant argues that such detriment was established as a matter of law by evidence that after defendant terminated his connection with plaintiff, he had opened another business and that plaintiff’s executives had negotiated with him for the purchase of such business and had led him to believe that he would not be sued for violation of his covenant against competition. Although defendant testified that he invested substantial sums in the new enterprise, he does not assert that he sustained any actual loss as a result of plaintiff’s failure to file the suit earlier. Although he may have changed his position, the evidence does not establish as a matter of law that the change was disadvantageous. Consequently, we hold that plaintiff's suit is not barred by laches.

3. Requirement of Certificate of Authority

By cross-point, plaintiff complains of the action of the trial judge in requiring it to obtain and file a certificate of authority before entry of final judgment. Plaintiff argues that it was not required to obtain such a certificate because it was not engaged in intrastate business. Plaintiff does not complain of the terms of the judgment itself, but only of the earlier order which required it to obtain the certificate. We hold that this matter became moot when plaintiff filed the certificate and the court entered final judgment granting the permanent injunction. If we should sustain the cross-point, we would not be in a position to grant plaintiff any actual relief. Any opinion from us on this point would be purely advisory. Consequently, plaintiff’s cross-point is overruled.

Other matters discussed in the briefs and in oral argument were not properly raised in the trial court. Consequently, all of defendant’s points of error, as well as plaintiff’s cross-point, are overruled.

Affirmed.


author: SHANNON, Justice.

text:
    Truman P. HALE, Appellant, v. W. R. RAMSEY, d/b/a Pete Ramsey Electric Company, Appellee.
    No. 12247.
    Court of Civil Appeals of Texas, Austin.
    May 28, 1975.

      William Dickson, Dickson & Associates, Inc., Houston, for appellant.
    James V. Hammett, Jr., Hammett, Cavness & Builta, Lampasas, for appellee.
   SHANNON, Justice.

Appellant, Truman P. Hale, appeals from a take-nothing judgment entered by the district court of Lampasas County in response to a jury verdict. Appellee is W. R. Ramsey, doing business as Pete Ramsey Electric Company. We will affirm the judgment.

In his trial petition appellant alleged that on April 10, 1969, he was employed by ap-pellee. At that time he was injured on the job as the result of a fall from a ladder. Appellant pleaded that appellee was subject to the Texas Workmen’s Compensation Law, Vernon’s Tex.Rev.Civ.Stat.Ann. Art. 8306, because appellee had three or more employees. Because appellee did not have a policy of workmen’s compensation insurance in force at the time of the accident, appellant sued appellee for common law damages. As basis for suit appellant pleaded that appellee (1) failed to provide a safe place for appellant to work; (2) instructed appellant to perform work in the scope of his employment under conditions which were unsafe; (3) failed to provide assistance by another employee or employees to hold and “steady” the ladder for appellant; and (4) failed to provide materials and equipment which were safe and adequate for appellant to perform the work.

Appellant’s case was submitted to the jury by twelve special issues. The jury answered affirmatively that appellee failed to provide assistance by other employees to hold and “steady” the ladder for appellant, but failed to find that such omission was negligence. Upon the basis of the jury’s verdict, judgment was entered that appellant take nothing.

Appellant assails the judgment by eleven points of error. An analysis of those points shows that five are concerned with the admission of evidence, two with jury misconduct, and one with improper jury argument. The sixth point of error is that the court erred “. . .in denying Appellant’s Motion for Judgment Non Ob-stante Verdicto [sic] in failing to disregard findings on certain Special Issues as filed by the Jury on May 15, 1974.” The ninth point claims the “. . . damages awarded by the findings of the Jury in answer to the Special Issues in damages are inadequate in that the Appellant is entitled to compensatory damages, and that such damages, as awarded were inadequate in amount, that the overwhelming weight and preponderance of the evidence shows that the Appellant should be entitled to a greater amount than that which the Jury found in answer to Special Issue No. 20.” Finally, the tenth point is that the jury’s failure to find that it was negligent not to provide assistance by another employee to hold and steady the ladder was “. . .so against the overwhelming weight or preponderance of the evidence that it ought not to stand . .

By his first cross-point appellee urges that the judgment should be affirmed for the reason that appellant has waived all points of error. In support of that argument appellee correctly states that under appellant’s points of error there are no factual statements, no record references, and no statement of the testimony claimed by appellant to have been improperly admitted. And, in addition, no authority for-any proposition has been listed.

Prior to the time for filing appellant’s brief, counsel obtained from this Court an extension of time for the filing of his brief. In the motion for extension counsel characterized the appeal as one involving disputed issues requiring “intensive study and careful briefing.” Discovering, perhaps, that much study is a weariness of the flesh, counsel merely copied the motion for new trial as the brief for filing in this Court with minor changes such as substituting the term, “appellant,” for “plaintiff” and the term, “appellee,” for “defendant.” Not only was there no additional “careful” briefing done, there was no briefing at all.

Texas Rules of Civil Procedure, rule 418(c) requires, in part, that the brief of the argument contain a fair, condensed statement of the facts pertinent to such points with references to the pages in the record where the same may be found and such discussion of the facts and authorities relied upon as may be necessary to maintain the point. That rule provides further that if complaint is made of the improper admission or rejection of evidence, the full substance of such evidence so admitted or rejected shall be set out with reference to the pages of the record where the same may be found.

One of the main purposes of Rule 418 is to. require counsel to put before the appellate court in the brief at least the substance of the point relied upon for reversal and to relieve the appellate court from having to piece together a point for the appellant from an examination of the transcript and statement of facts. Isenhower v. Bell, 365 S.W.2d 354 (Tex.1963). Rule 418(c) makes plain the duty of counsel to support the points of error with a fair and condensed statement of facts pertinent thereto “. . . with references to the pages in the record where the same may he found . . .” (Emphasis added) That rule requires further that if complaint is made of the improper admission or rejection of evidence, the full substance of such evidence so admitted or rejected shall be set out with reference to the pages of the record where the same may be found. It is not the obligation of the appellate court to search out the statement of facts, in this instance three hundred and nineteen pages, to discover the facts which might support appellant’s points of error. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (1955), Blackmon & Assoc., Inc. v. Palmer Bldg. Sup. & Spec., Inc., 463 S.W.2d 228 (Tex.Civ.App.1971, writ ref’d n. r. e.). Equally well settled is the rule that the points of error are required to be supported by argument and authorities, Tex.R.Civ.P. Rule 418(c), and if not so supported, the points are waived. Rayburn v. Giles, 182 S.W.2d 9 (Tex.Civ.App.1944, writ ref’d), Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.1974, writ ref’d n. r. e.).

The judgment is affirmed.

O’QUINN, T., not participating.

      . Ecclesiastes
      “Of making many books there is no end; and much study is a weariness of the flesh.” 12:12


author: PHILLIPS, Chief Justice.

text:
    Tom W. BRADFIELD et al., Appellants, v. The STATE of Texas et al., Appellees.
    No. 12249.
    Court of Civil Appeals of Texas, Austin.
    May 28, 1975.
    Rehearing Denied June 18,1975.

      Hume Cofer, Austin, for appellants.
    Ned Granger, County Atty., Ralph A. Rash, Asst. County Atty., Austin, for ap-pellees.
   PHILLIPS, Chief Justice.

This is a condemnation case in which the State and Travis County took 25.72 acres for highway purposes from the appellants. The tract taken adjoins the southwest boundary of Zilker Park at the city limits of Austin.

Appellants state that the taking was procedurally correct and the only issue at trial was the value of the tract taken in December of 1970. The jury returned a verdict and judgment was rendered thereon against appellants for over $7,000. This sum represented the excess of the commissioner’s award over the amount of the verdict. We reverse the judgment of the trial court and remand the case for a new trial.

Appellants are before us on five points of error; however, as we sustain their first point, we do not reach those remaining points which, in all likelihood, will have no bearing on retrial. Appellants’ first point is the error of the court in permitting the State’s only appraisal witness to testify concerning his consideration of the “Coleman comparable” because the sale was a distress sale under economic compulsion, a fact known to the witness.

Appellants’ witnesses stated that, in their opinions, the value of the tract in question was $358,700, $343,152, and $415,507.

The State’s only appraisal witness testified that, in his opinion, the value of the tract taken was $250,000. The jury verdict was for $250,000.

The parties hereto agree that the Coleman property was the key comparable to the State’s case so, for our purposes, we need not further describe it or the other sales admitted into evidence. The State’s appraiser testified that in his opinion the Coleman property was sold below the market value and that he was reliably informed by both buyer and seller that this property was conveyed under economic duress and pressure for monetary relief for the seller. His own notes, used during his testimony, reflected the following: “reliably informed by both buyer and seller property was conveyed under economic duress and pressure for monetary relief.”

This appraiser testified that because of the presence of the element of economic duress he made an “adjustment” in the value of the tract. Counsel for appellants then asked him this question: “In order to use this as a comparable, it was necessary was it not, for you to apply a judgment adjustment to the $200,000, based upon this information, this reliable information, which you noted on your information sheet. You couldn’t fairly just use the $200,000 knowing of that information, could you?” The appraiser replied: “Again I’m reaching back a long way. Certainly I made adjustments but the first adjustment would be the time adjustment. Will you restate your question, I’m trying to remember two things at one time.” Counsel again asked: “Well, you said a while ago that ybu thought $200,000 was below market value. In order to use it fairly in an appraisal you had to adjust it and that adjustment depended upon your judgment, didn’t it?” The State’s appraiser answered: “It would have to.” While admitting that, under the circumstances, any adjustment of the amount received for the forced sale would have to be “up,” this witness admitted that he did not know how much of an adjustment he had made and that this figure was not reflected in any of his records.

In order to use sales of other property as bearing on the market value of the subject property, it is necessary to show reasonable similarity that the sales were not compulsory, but were free and open, and not too remote. The sale of the property in question was not free and open and the testimony regarding that sale should not have been admitted into evidence. To do so was reversible error. Robards v. State, 285 S.W.2d 247 (Tex.Civ.App.1955, writ ref’d n. r. e.). City of Austin v. Flink, 454 S.W.2d 389 (Tex.1970).

The judgment of the trial court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

O’QUINN, J., not participating.

      . Appellants are Mr. and Mrs. Tom W. Bradfield, Mr. and Mrs. Donald H. Cummins, and Mr. and Mrs. Robert Mueller, Jr.

      . See also: State v. Weidel, 385 S.W.2d 625 (Tex.Civ.App.1964, no writ); State v. Vick, 376 S.W.2d 89 (Tex.Civ.App.1964, no writ); State v. Curtis, 361 S.W.2d 448 (Tex.Civ.App.1962, writ ref'd n. r. e.); Phelps v. State, 157 S.W.2d 955 (Tex.Civ.App.1942, no writ); Too Fan v. City of El Paso, 214 S.W. 2d 158 (Tex.Civ.App.1948, no writ); and Menchaca v. San Antonio Independent School District, 297 S.W.2d 363 (Tex.Civ.App.1956, writ dism’d).


author: CLEMENS, Presiding Judge.

text:
    Milton MILBERG et al., Appellants, v. James L. SANDERS et al., Respondents.
    No. 36228.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 3, 1975.
    Lawrence J. Fleming, Burton M. Green-berg, St. Louis, for appellants.
    John J. Fitzsimmons, Associate City Counselor, St. Louis, for respondents.
   CLEMENS, Presiding Judge.

Plaintiffs-police officers appeal from the circuit court’s refusal to adjudge a police department rule governing secondary employment in violation of due process of law. The rule in question prohibits a police officer from “following any other business or calling, unless he has written permission from the Chief of Police to engage in secondary employment.” The rule directs the Chief to “promulgate a procedure to operate and control secondary employment” and permits the Chief to deny secondary employment “where it appears from the applicant’s sick record or other evidence that secondary employment might impair his ability to discharge his obligations to the department.”

Plaintiffs concede that “all policemen do not have the innate right to engage in secondary employment,” but they contend that since the rule affords officers generally the right or privilege of such employment, “officers must be afforded a hearing of some nature to assure that the right granted will be equally applied.” Plaintiffs extend this argument by contending a prior administrative hearing is required under these circumstances to afford them due process of law. They seek to equate their position vis á vis the police department with that of plaintiffs in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). We find no parallel situation here.

In Goss, the Supreme Court held that school children attending public schools may not be suspended without a prior hearing, since such suspension could harm students’ reputations and impair later educational and employment opportunities. The Court invalidated an Ohio statute permitting such summary suspension and noted that Ohio law contained no provision for de novo judicial review of agency decisions.

In the present case, plaintiffs have not shown a property interest in secondary employment comparable to a student’s property interest in education. Nor have plaintiffs demonstrated that absence of an administrative hearing would adversely affect their reputations or jeopardize their opportunities for other employment. And unlike the Goss plaintiffs, these plaintiffs have not shown any inadequacy in Missouri’s statutory judicial review procedures.

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Missouri accords that opportunity through Article V, § 22 of the Missouri Constitution, Y.A.M.S. and through implementing statutes, infra. Article V, § 22 provides: “All final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law . . . ”

This Article is implemented by §§ 536.-100 — 536.140, V.A.M.S., 1975, whenever an agency decision is reached after a hearing required by law, and through § 536.150, V.A.M.S., 1975, whenever the law does not require the agency to hold a hearing before making its decision. State ex rel. Walmar Investment Company v. Mueller, 512 S.W.2d 180 (Mo.App.1974). Since the police department is not required by law to hold a hearing before making a secondary employment decision, these plaintiffs must pursue the avenue of review provided by law in § 536.150.

The scope of review provided by § 536.150 is broad and requires de novo judicial review of agency decisions made in the absence of an agency hearing. State ex rel. Leggett v. Jensen, 318 S.W.2d 353[3, 4] (Mo. banc 1958), held it is not true “ ‘that in any case where individual rights are involved there must be an administrative hearing with all the attributes of due process of law.’ Due process is satisfied if there be either an administrative hearing subject to judicial review or the right to have a hearing in court which may adequately review the administrative decision.” See also Jones v. Schaffner, 509 S.W.2d 72[6] (Mo.1974).

Section 536.150 provides plaintiffs the right to seek de novo court review of the defendants’ denial of their applications for secondary employment. This statutory review proceeding enables the reviewing court to obtain “the same kind of record that would be made before the agency in a case reviewable under Article V, § 22 of the Constitution . . . ” State ex rel. Walmar Investment Co. v. Mueller, supra at [1], The requirements of due process are met by the § 536.150 review, and the judgment of the circuit court denying plaintiffs a declaratory judgment is therefore affirmed.

KELLY and RENDLEN, JJ., concur.

      . Special Order 71-S-18 (6/21/71).

      . The record discloses that several of these plaintiffs have engaged in secondary employment through a federally subsidized departmental program.

      . “1. When any administrative body existing under the constitution or by statute . . . shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person . . . and there is no other provision for judicial inquiry into or review of such a decision, such decision may be reviewed by suit for injunction, certiorari, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was . . . entitled to such privilege, and may hear such evidence ... as may be properly adduced, and the court may determine whether such decision . is . . . unlawful . . . ; and the court shall render judgment accordingly, and may order the administrative . . body to take such further action as may be proper to require . . ”


author: BILLINGS, Chief Judge.

text:
    Herman Eugene WING, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 9876.
    Missouri Court of Appeals, Springfield District.
    June 6, 1975.
    Grant W. Scott, Spencer, Scott & Dwyer, Joplin, Richard A. Bachand, Albuquerque, N. M., for movant-appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

Appellant Herman Eugene Wing, a prisoner in the Oklahoma State Penitentiary, initiated this Rule 27.26, V.A.M.R., proceeding seeking post-conviction relief from a Missouri sentence which is pending. The trial court, without conducting a hearing, made findings of fact and conclusions of law based upon appellant’s motion, the files and transcript of the Missouri trial, and the decision of the Supreme Court in State v. Wing, 455 S.W.2d 457 (Mo.1970), cert. denied 400 U.S. 1009, 91 S.Ct. 566, 27 L.Ed.2d 621 (1971). It was the lower court’s judgment that appellant was not entitled to relief under Rule 27.26 but that a hearing on appellant’s motion would be postponed until appellant was in custody under the Missouri sentence. We affirm.

In 1969 the appellant was tried and convicted by a jury in Newton County, Missouri, of possession of burglary tools and sentenced to a ten-year prison term in the Missouri Department of Corrections. While at liberty on an appeal bond and while his appeal was pending in the Supreme Court of Missouri, the appellant was convicted of charges relating to armed robbery in Oklahoma and sentenced. At the time of filing this motion the appellant was serving the sentences (105 years according to the state’s brief, five sentences being served concurrently for a total of 45 years according to appellant’s brief) in the Oklahoma penitentiary.

Prior to appellant’s Missouri and Oklahoma convictions he was charged with attempted bank burglary in the United States District Court for the Western District of Missouri. He was convicted by the jury but judgment of acquittal was entered because the court concluded burglary tools were seized as the result of an illegal search. We gather that appellant’s prosecution in Newton County followed, and the state courts determined the burglary tools were not illegally seized (State v. Wing, 455 S.W.2d 457).

In summary, the appellant’s motion sought to vacate sentence and judgment entered by the Circuit Court of Newton County because the burglary tools should have been suppressed because obtained by an illegal search (insufficient affidavit for search warrant), as determined by the federal court, and the doctrine of collateral estoppel should apply.

We pause to note that on appellant’s direct appeal the issue of the sufficiency of the affidavit for a search warrant and the resultant seizure of the burglary tools pursuant to the warrant was squarely raised, considered and ruled adversely to the appellant. Sweazea v. State, 515 S.W.2d 499 (Mo. banc 1974), and cases cited therein hold that a Rule 27.26 motion cannot be used as a substitute for a second appeal and where an issue has been raised and decided on direct appeal defendant cannot obtain another review thereof in a 27.26 proceeding.

Decisive of this case, however, is the fact that the appellant is not in custody under the judgment and sentence he seeks to overturn. In Lalla v. State, 463 S.W.2d 797 (Mo.1971), the movant had been convicted and sentenced in Missouri but prior to his imprisonment by Missouri authorities he was incarcerated in a federal penitentiary in another state. The court assumed a de-tainer had been filed on the defendant for Missouri at the federal penitentiary (a de-tainer has been filed by Missouri with Oklahoma prison officials in this case).

In holding Lalla could not proceed under Rule 27.26 the court said:

“Missouri has not denied defendant a post-conviction remedy; it has merely said that, not having him within its custody, a hearing on the matter will be postponed until he is available (and in custody) in Missouri. . . .” (463 S.W.2d at 798).

In his brief the appellant contends that the decision in Lalla v. State, supra, denies him any state remedy; that the postponement of his motion denies him due process and equal protection of the law; and, further, that federal cases since Lalla have expanded the “in custody” requirement of federal habeas corpus and we should follow such federal interpretations.

We do not agree with appellant’s various contentions, but in any event, Lalla v. State is still the law of this state, and the judgment of the trial court is affirmed.

All concur.


author: PER CURIAM.

text:
    Paris MOSELEY et al., Plaintiffs-Appellants, v. CITY OF MOUNTAIN GROVE, Missouri, et al., Defendants-Respondents.
    No. 9367.
    Missouri Court of Appeals, Springfield District.
    June 6, 1975.

      Gregory C. Stockard, Jefferson City, E. C. Curtis, L. J. Knauer, Farrington, Curtis & Strong, Springfield, for plaintiffs-appellants.
    James E. Miller, B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendants-respondents.
   PER CURIAM.

Plaintiffs appeal from an order of the trial court sustaining defendants’ motion to dismiss plaintiffs’ petition on the ground that the petition fails to state a claim upon which relief can be granted. The order is appealable. Spires v. Edgar, 513 S.W.2d 372, 373[2] (Mo. banc 1974).

Where a petition is attacked by a motion to dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted. Tolliver v. Standard Oil Company, 431 S.W.2d 159, 162[2] (Mo.1968). But the facts alleged are taken to be true and the pleader is entitled to all favorable inferences fairly deducible therefrom. Parker v. Sherman, 456 S.W.2d 577, 578[2] (Mo. 1970). If such facts and such inferences, viewed most favorably from plaintiffs’ standpoint, show any ground for relief, the petition should not be dismissed. Johnson v. Great Heritage Life Ins. Co., 490 S.W.2d 686, 690[9] (Mo.App.1973).

The petition must be analyzed in light of the foregoing principles.

Plaintiffs are “residents, property owners and taxpaying citizens” of the City of Mountain Grove, Missouri, a city of the third class, and they bring this action “for and on behalf of themselves and all other property owners and taxpayers and inhabitants of said City.” Defendants are the City of Mountain Grove, its mayor and the members of its council.

The petition seeks an injunction restraining the defendants from selling or otherwise negotiating revenue bonds authorized by an election held in the City of Mountain Grove, Missouri, on November 28, 1967, and restraining the defendants “from negotiating for the purchase or from executing any contract or contracts with any person or persons for the construction of an electrical transmission and distribution system within [the City] and from the construction of such a system in any manner.”

The petition alleges that the issuance and sale of the revenue bonds and the purchase or construction of the electrical system are unlawful on two grounds, to-wit: first, the proposition submitted to the voters was improperly stated on the ballot; second, certain statutory procedures allegedly “prerequisite to the issuance of said bonds and the purchase or construction” of the system were not followed.

The petition states facts in support of both of said grounds, but, in view of the disposition of this appeal, those facts need not be recited nor their adequacy explored.

The petition further alleges that the defendants, unless restrained, will sell the bonds and proceed to purchase or construct the system and place it in operation.

Immediately prior to the prayer, and after making the foregoing allegations, the plaintiffs plead:

“4. That plaintiffs will suffer irreparable injury, harm and damage if the aforesaid action now contemplated and threatened by the defendant City of Mountain Grove is carried out and that plaintiffs have no adequate remedy at law.”

An injunction will not be granted unless there is some substantial right to be protected. Higday v. Nickolaus, 469 S.W.2d 859, 864[11] (Mo.App.1971). The indispensable basis for injunctive relief is the wrongful and injurious invasion of some legal right existing in plaintiff, Howe v. Standard Oil Company of Indiana, 150 S.W.2d 496, 497[1] (Mo.App.1941), although the writ will issue also if invasion of that right is threatened by one having the power to do the wrong. Ewing v. Kansas City, Missouri, 238 Mo.App. 266, 180 S.W.2d 234, 240[1-3] (1944). The remedy is one which is to be used sparingly and in clear cases only. Ewing v. Kansas City, Missouri, supra, at p. 239.

Have the plaintiffs pleaded a litiga-ble interest in the bonds and in the pro-, posed electrical system sufficient to entitle them to maintain this action? The question must be answered in the negative.

In Spencer v. Village of DeKalb, 408 S.W.2d 78 (Mo.1966), a declaratory judgment action was brought by plaintiff Spencer against the village of DeKalb, Missouri. Spencer alleged, as do the plaintiffs in the ease at bar, that he was a “resident, property owner and taxpayer” in DeKalb. Pursuant to ordinance, an election was held and a revenue bond issue was carried. The purpose of the revenue bonds was to finance the construction of a water system. The trial court entered judgment in favor of Spencer and declared that the ordinance authorizing the election was void and that the issuance and sale of the bonds “was and is illegal.” The village of DeKalb was enjoined and restrained from proceeding with the construction and erection of the water works system for which said bonds were voted.

Our Supreme Court, speaking through Judge Donnelly, reversed and remanded the case “because under the evidence plaintiff is not shown to have a legally protectible interest sufficient to allow him to maintain this suit.” Spencer, supra, at p. 79. Testimony by Spencer that he owned real estate in DeKalb, paid taxes there, and voted in the village elections was held insufficient to evidence a legally protectible interest.

At p. 80 the court said: “In view of the fact that the revenue bonds in evidence provide that neither they nor the interest thereon shall be paid in whole or in part out of funds raised by taxation, the fact that plaintiff is a taxpayer is not sufficient of itself to show plaintiff could have been adversely affected by the actions of the Village of Dekalb. On the evidence adduced plaintiff has shown no evidence sufficient to maintain this suit.”

Similarly, in Collins v. Vernon, 512 S.W.2d 470 (Mo.App.1974) a taxpayer brought an action to enjoin the defendant City of Eldon, a fourth class city, from selling property which had been used as an airport and had been designated as a park. The trial court had sustained a motion to dismiss the petition for failure to state a claim and this ruling was affirmed. The petition, held to be defective, alleged that plaintiffs were “residents, citizens and taxpayers of the City of Eldon” although they did not claim any title or ownership to the land involved. At. p. 473, the Kansas City District of this court, speaking through Judge Swofford, said: “It is a well-recognized rule that an aggrieved taxpayer may institute a suit against a governmental unit to seek relief for an alleged illegal or improper act. This rule was first recognized in the jurisprudence of this state in Newmeyer v. Mo. & Miss. R. R. Co., 52 Mo. 81 (1873). The rationale for such a rule is that a taxpayer has an ‘equitable ownership’ of public funds and any illegal expenditure of such funds will subject the taxpayer to a liability to . . replenish any deficiency resulting from the misappropriation.’ Everett v. County of Clinton, 282 S.W.2d 30, 35 (Mo.1955).”

The court stated that since plaintiffs made no claim of ownership of the property involved they were required “to plead with specificity such damages in their posture as taxpayers.”

The court cited Fugate v. McManama, 50 Mo.App. 39, 42 (1892), where two plaintiffs sought injunctive relief against the members of a school board to prevent them from opening a separate school. The court affirmed a judgment for the defendants “for the reason that the plaintiffs failed to show the extent of their interests which (if at all) were injuriously affected by the irregular action of the directors.”

In Collins the court pointed out that an appellate court looks beyond “the bare facts of the petition to determine if the ultimate fact of damages arises as a necessary conclusion from the facts stated in the petition.” However, the record failed to reveal that plaintiffs alleged any damage or injury to themselves as taxpayers “in the way of increased tax burdens.” The court concluded that the plaintiffs did not plead sufficient elements of damage “to maintain their position as proper parties plaintiff.”

It must be kept in mind that the instant petition alleges that the bonds were revenue bonds.

The nature of revenue bonds was discussed by our Supreme Court in Wring v. City of Jefferson, 413 S.W.2d 292 (Mo. banc 1967). The court referred to Mo.Const. Art. 6, § 27, V.A.M.S., relating to revenue bonds, and Art. 6, § 23(a), relating to general obligations of specified cities, towns and villages. At p. 300 the court, speaking through Chief Justice Storckman, said: “Comparison of pertinent portions of § 23(a) and § 27 of Art. 6 further demonstrates the greater power and flexibility conferred directly on the municipalities by § 27. For instance, § 23(a) provides that the cities specified may become indebted for the purchase or construction of manufacturing and industrial plants to be leased or otherwise disposed of pursuant to law to private persons or corporations. The basic theory of revenue bonds as expressed in § 27 is to prevent the cities from becoming indebted for any of the projects authorized. The latter part expressly provides that the revenue bonds and interest shall be payable solely from the revenues derived from the facility. Section 23(a) further provides that the indebtedness incurred thereunder shall not exceed ten percent of the value of taxable tangible property in the city. By contrast, § 27 imposes no limitation upon the amount of revenue bonds that may be issued. The language of § 27 and its constitutional context indicates an intention to avoid any general obligation or liability being imposed on the city in connection with the industrial plant proposed.”

See also Wunderlich v. City of St. Louis, 511 S.W.2d 753, 755 (Mo. banc 1974) for a discussion of “revenue bonds” which are not paid directly or indirectly by resort to taxation, and “general obligation bonds” which are payable by utilization of the full taxing power of the issuing entity.

“The courts have generally held that where self-liquidating bonds are issued by a municipal corporation or other governmental unit, the payment of which shall be made solely from the revenues to be derived from the facility or utility to be financed by the bonds and which payment shall not become a general obligation of the governmental unit issuing the same, a taxpayer has no litigable interest in connection with such bonds so as to enjoin their issuance.” 74 Am.Jur.2d Taxpayers’ Actions § 21, p. 226.

Although Spencer v. Village of DeKalb, supra, was a declaratory judgment action, and the case at bar is an action for an injunction, plaintiffs in the latter type must also plead a litigable interest.

“The principle that to entitle a person to sue in equity, it must appear that he individually or in a representative capacity has some present, real, and substantial interest in the cause of action, applies when one seeks to invoke the jurisdiction of equity for injunctive relief. The plaintiff must have sufficient title or interest in the right or property sought to be protected, and unless he has such title or interest, his suit will not be entertained. Those who are not affected or who are but remotely affected by the acts complained of have no standing in court to enjoin them.” 42 Am.Jur.2d Injunctions § 257, p. 1046.

“The right of a citizen or taxpayer to restrain acts of public officials is in some instances granted or regulated by statute,but ordinarily, and in the absence of statute, private citizens or corporations must possess something more than a common concern for obedience to law before they will be permitted to maintain injunction suits against public officers. A private person who wishes to restrain an official act must allege and prove damage to himself different in character from that sustained by the public generally. The reason for the rule rests in the sound public policy of protecting the public corporation or its officers from a multiplicity of suits.” 42 Am. Jur.2d Injunctions § 179, p. 949.

An examination of paragraph 4 of the instant petition, set out earlier in this opinion, discloses that it states no facts showing that plaintiffs have no adequate remedy at law, nor does it state facts showing irreparable injury to plaintiffs by reason of the conduct sought to be enjoined.

An allegation that plaintiffs have no adequate remedy at law is itself a mere legal conclusion and is not, standing along, a sufficient allegation of an inadequacy of a remedy at law. State ex rel. Janus v. Ferriss, 344 S.W.2d 656, 659[1] (Mo.App.1961).

The following language appears in State v. Horner, 187 S.W.2d 976, 979[5] (Mo.App.1945): “There are no facts pleaded in the petition which show in the remotest degree that plaintiffs will be irreparably damaged if not granted the relief prayed for. It is only a mere statement of the conclusion of the pleader. The petition does not affirmatively show on its face by the facts pleaded that plaintiffs have no adequate and complete remedy at law. Such allegations in the petition are jurisdictional and must be pleaded. Benton County v. Morgan, 163 Mo. 661, 64 S.W. 119; Palmer et al. v. Marshall et al., Mo.App., 24 S.W.2d 229.”

In Miller v. City of St. Joseph, 485 S.W.2d 688, 692[4] (Mo.App.1972) the following language appears: “Even assuming that there was a valid basis for holding that the City exceeded its charter powers in extending fire protection beyond its boundaries to the associations and persons immediately adjacent to it, yet plaintiff has not sustained his burden of proof so as to be entitled to injunctive relief. That burden encompasses a showing of substantial injury to himself and others similarly situated.”

Since the petition fails to state facts showing that plaintiffs have a legal standing to sue, that plaintiffs have no adequate remedy at law, and that plaintiffs will be irreparably injured unless the injunction issues, and since such inadequacy and damage cannot be inferred from the facts which are pleaded, the trial court properly sustained the motion to dismiss.

The judgment is affirmed.

All of the judges concur, except STONE, J., not participating.