author: DIES, Chief Justice. KEITH, Justice,

text:
    ESTATE of Cecil Ray BROWN, Deceased, et al., Appellants, v. MASCO CORPORATION, Appellee.
    No. 8118.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 22, 1978.
    Rehearing Denied Dec. 14, 1978.

      John Cash Smith, Orange, for appellants.
    Stephen M. Rienstra, Kerwin B. Stone, Beaumont, for appellee.
   DIES, Chief Justice.

On July 23, 1974, Cecil Ray Brown was driving south on Jacks Island Road in Orange County when his vehicle, a Datsun truck, collided with a boat and boat trailer being pulled by a pickup truck going north on the same road. Brown was killed, and his wife brought a products liability action against the manufacturer of the Fulton trailer coupler and the Dilly boat trailer contending that the trailer and coupler, due to design defects, became uncoupled and swung into the southbound lane striking Brown’s vehicle. Defendants contended the collision was caused by Brown’s leaving his proper lane and driving into the boat while it was still coupled to the pickup.

The issues on product defects were all conditionally submitted requiring an affirmative answer to Special Issue No. 1 that the trailer came uncoupled before the collision. The jury found that it did not come uncoupled, and the trial court entered judgment that plaintiffs (wife and children) take nothing, from which plaintiffs perfect this appeal.

Plaintiffs’ first point of error complains of the admission of certain testimony from a police officer who investigated the accident. Appellees (defendants) do not contend before us that plaintiffs waived this objection.

Herewith follows the question and answer of the officer:

“Q. Did you conclude that any traffic law had been violated at the time this collision occurred?
“A. Yes sir, it appeared that the Datsun pickup [Brown’s vehicle] had not stayed in his lane of traffic.”

Prior to beginning the trial, plaintiffs had filed a motion in limine to exclude the officer’s opinion and to limit his testimony to what he actually saw and observed.

On September 20, 1977, the court ruled:

“Purcell [the officer] shall not be allowed to testify as to his opinion as to the cause of the accident . . . until the Court, out of the presence of the jury, makes its ruling as to whether he is qualified to give such opinion.”

During the presentation of the defendants’ case, the jury was dismissed, and Officer Purcell’s deposition was introduced in order to determine its admissibility. During this procedure, plaintiffs’ attorney asked the court, “How do you want to handle this? Do you want him just to go ahead and read this or do you want me to interpose an objection now or after they read a little bit of my cross?” The court suggested that plaintiffs’ attorney mark on the deposition the places to which he objected, and this was done.

Also, when they reached a statement by Purcell that he concluded Brown had entered into the opposing lane of traffic and struck the boat, plaintiffs’ attorney said, “I just want a continuing objection to all of this.”

After the deposition in its entirety was presented, the court ruled, “I intend to exclude this testimony as to . . . of Officer Purcell as to his opinion on anything,” and told the attorneys to go through the deposition and delete the opinion answers.

On Tuesday, October 5, apparently the following day before the jury was brought in, a discussion of what was and was not admissible followed. At that time, plaintiffs’ attorney again objected to this particular testimony. The court said, “Well, of course, the Datsun pickup truck didn’t stay in his lane of travel. It wound up in the ditch on the other side. It’s bound to have gotten out of its lane of travel, but whether that was a violation or not of a traffic law is another question. Well, I’m going to overrule your objection.” Plaintiffs’ attorney responded, “Okay, note my exception.” The court replied: “All right. . . .” The jury was returned to the courtroom, and this testimony was read to the jury.

We believe plaintiffs preserved their objection to this testimony. Unquestionably the court and defendants’ attorneys knew specifically plaintiffs’ objection to the testimony, and the reasons for the objection, and the court admitted the testimony with this knowledge. Where a party makes a proper objection to the introduction of a witness, and is overruled, he is entitled to assume that the judge will make the same ruling as to other offers of similar evidence, and he is not required to repeat the objection. Crispi v. Emmott, 337 S.W.2d 314, 318 (Tex.Civ.App.—Houston 1960, no writ); see also, State v. Lock, 468 S.W.2d 560, 565 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.). In State v. Lock, the trial court had granted certain motions in limine and denied others as to the introduction of evidence. During the trial, testimony was elicited on all of these subjects. When the first reference was made to a certain use of the land (a subject as to which trial court had denied a motion in limine) the opposing counsel, the State, objected and was overruled. Other use was then made of this statement. The State did not make a motion to strike, require special instructions, or object to special issues. The State did make a motion for new trial. The appellate court noted that the State’s objection to the complained of testimony was general and casual, but concluded: (Keith, J.)

“The trial court, however, had theretofore overruled State’s motion in limine and State’s counsel had little reason to believe that an elaborate objection even if followed by a vigorous legal argument would be successful. Under the circumstances, we are of the opinion that the objection was sufficient to preserve the point.”

Id. at 565.

Had Brown survived the collision and been given a ticket by Officer Purcell for not staying in his lane of traffic, this fact would not have been admissible in evidence unless Brown plead guilty. See Fisher v. Leach, 221 S.W.2d 384 (Tex.Civ.App.—San Antonio 1949, writ ref’d n. r. e.); Johnson v. Woods, 315 S.W.2d 75 (Tex.Civ.App.—Dallas 1958, writ ref’d n. r. e.); Carrick v. Hedrick, 351 S.W.2d 659 (Tex.Civ.App.—Amarillo 1961, no writ); Mooneyhan v. Benedict, 284 S.W.2d 741 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.); Barrios v. Davis, 415 S.W.2d 714 (Tex.Civ.App.—Houston 1967, no writ); Switzer v. Johnson, 432 S.W.2d 164 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ).

The ultimate issue in this case was Special Issue No. 1. If Brown’s vehicle got on its wrong side of the road, it struck the boat and was the cause of the uncoupling of the trailer. A police officer’s opinion as to the cause of a traffic accident carries extra weight with the average juror.

In Texas, accident analysts and reconstruction experts can be qualified if they are highly trained in the science of which they testify. See Bolstad v. Egleson, 326 S.W.2d 506, 518 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.); Texaco, Inc. v. Romine, 536 S.W.2d 253 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). See Note 38 Tex.L.Rev. 503, 506 n. 14 (1960):

“As for regular police officers, sheriffs, mechanics, etc., it generally may be said that they lack such training and experience as would qualify them to make a scientific analysis from physical evidence, regardless of how many accident scenes one may have examined.”

Officer Purcell’s training only included three days of training on investigation of accidents. He had only investigated about twenty accidents prior to the one we review. Purcell’s degree was in elementary education. Clearly, Officer Purcell was not qualified to express his opinion on the ultimate issue in this case. See East Texas Motor Freight Lines, Inc. v. Neal, 443 S.W.2d 318 (Tex.Civ.App.—Texarkana 1969, writ ref’d n. r. e.). And we find that this testimony was reasonably calculated to and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434. See Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958). Appellants’ first point is sustained.

Appellants’ second point of error complains “The court erred in allowing the Defendant, Masco/Fulton to introduce the accident reconstruction opinion testimony of the company representative, Charles Hall, in that the witness was totally unqualified to give expert opinion testimony, and admission of his testimony invaded the province of the jury.”

We sustain this point for these reasons: Hall had no training or background in accident reconstruction, and yet through drawings projected on a screen to the jury, and oral testimony, he was permitted to “analyze” each side’s contention and conclude that appellee’s (defendant’s) was the more plausible. Hall had a degree in mechanical engineering and was employed as Manager of Reliability and Quality Assurance for Fulton. He was accepted by the court as Fulton’s representative at the trial. He had never testified in a traffic accident before and clearly was allowed to express opinions outside his expertise. This was reversible error. In addition to the authorities cited in this opinion, see 2 McCormick & Ray, Texas Evidence § 1400 (2nd ed. 1956); Koonce v. Perales, 268 S.W.2d 683, 684 (Tex.Civ.App.—San Antonio 1954, no writ); Hutchins v. Humble Oil & Refining Co., 161 S.W.2d 571, 573 (Tex.Civ.App.—Houston 1942, writ ref’d w. o. m.); Texaco, Inc. v. Romine, 536 S.W.2d 253, 256-257 (Tex.Civ.App.—El Paso, writ ref’d n. r. e.); Reed v. Barlow, 157 S.W.2d 933, 935 (Tex.Civ.App.—San Antonio 1941, writ ref’d); Wilderspin v. Bewley Mills, Inc., 298 S.W.2d 636, 641 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.).

The evidence of either Officer Purcell or witness Hall was highly prejudicial and improper; together the cumulative effect compounded the error. The judgment of the trial court is reversed, and the cause is remanded for a new trial.

REVERSED and REMANDED.

KEITH, Justice,

concurring.

It is with some reluctance that I concur in the reversal of the trial court’s judgment because of the claimed erroneous admission of opinion testimony. We have reviewed a tremendous record and two isolated instances now combine to bring about a reversal of an otherwise errorless judgment.

All litigants should keep in mind the admonition to be found in The Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968):

“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.”

This burden includes the rule articulated by Chief Justice Wheeler more than a century ago in Hill v. Baylor, 23 Tex. 261, 263 (1859), which still prevails:

“It is scarcely necessary to say, that objections to the admissibility of evidence not taken below, and which, if taken, might have been obviated at the trial, cannot be first urged in this court, as a ground for reversing the judgment.”

Although my uneasiness is applicable to both instances discussed by our Chief Justice, in the interest of time and space, I will confine my specific remarks to the Purcell incident. His testimony was offered in the form of an oral deposition taken by agreement wherein objections had been reserved until time of trial. Plaintiffs’ motion in limine to prevent defendants’ counsel from asking Purcell his opinion as to the cause of the accident had been presented and granted.

There was considerable discussion between the court and trial counsel without any definitive ruling on the question then before the court. Finally, on page 1295-A, being the concluding page of Volume 5 of the Statement of Facts, the court reporter inserted this note:

“(NOTE BY COURT REPORTER: At this point there was a hearing held out of the presence of the jury, such hearing being Pages 1296 through 1389 inclusive; this testimony was not admitted for the jury’s consideration and upon the instruction of counsel for plaintiffs, same is being deleted from the Statement of Facts.)”

Volume 6 of the Statement of Facts starts upon the next day with page 1390. Thus, with nearly a hundred pages of the record deliberately omitted, it is extremely difficult to follow the plaintiffs’ contention that the trial court committed reversible error in admitting Purcell’s testimony.

The contention is expressed in this manner:

“Perhaps the most prejudicial portion of the police officer’s testimony, admitted over the plaintiffs’ objection (S.F. 1409-1411), was the following:
“ ‘Q Did you conclude that any traffic law had been violated at the time this collision occurred?
“ ‘A Yes, sir, it appeared that the Dat-sun pickup [driven by the deceased] had not stayed in his lane of traffic.’ (S.F. 1464).”

The key and operative words found in the argument are these: “admitted over the plaintiffs’ objection.” I have read and reread the portion of the Statement of Facts wherein the objection is said to be found and do not find a tenable objection. One thing is certain, there are no objections to be found on page 1464 of the Statement of Facts — the time when the jury heard the evidence, and the single place mentioned in the plaintiffs’ brief.

To illustrate the problem, I quote from the colloquy between the court and counsel when the deposition was being considered, line by line, in the absence of the jury, page 1409 found in Volume 5 of the Statement of Facts:

“THE COURT: . . . Let’s see, go to page thirty-four.
“MR. SMITH [Plaintiffs’ Counsel]: Line four,
‘Q. Did you conclude any traffic law had been violated at the time this collision occurred?
‘A. Yes, sir, it appeared that the Dat-sun truck had not stayed in his lane of traffic.’ ”
[Here followed a full page (p. 1410) of comment by the Court and counsel but no objection from plaintiffs’ counsel.]

As the trial judge and counsel were jointly engaged in going through the deposition of Purcell in the absence of the jury, constant mention was made of testimony appearing on page number (for instance) thirty, line seven; but we do not have a deposition in our record. While the participants in this exercise in judicial wheel-spinning may have known precisely what was happening, they did not make an intelligible record sufficiently explicit to enable this court to review the action forming the basis of the present complaints.

After a careful review of the record surrounding the admission of the Purcell testimony, I am unable to locate a single specific objection to such challenged testimony.

Counsel engaged in the trial of a cause should ever be acutely aware of his duty and obligation, not only to his client but to the trial court, of making prompt, specific, and detailed objections to evidence which he considers to be inadmissible. Once such an objection is made, the trial court has a reciprocal duty of making a ruling thereon so that the accuracy of the ruling may be tested upon appeal.

Dean McCormick has an excellent treatment of the need for timely and specific objections and it is recommended to trial counsel. See 1 C. McCormick & R. Ray, Texas Law of Evidence §§ 22-27, at 20-26 (2d Ed. 1956). See also Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944), and Justice Pope’s recent article “Presenting and Excluding Evidence”, IX Tex.Tech L.Rev. 403, 443 (1978).

This language, extracted from Harlow v. Swift and Company, 491 S.W.2d 472, 477 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.), is applicable here:

“Plaintiff did not object to the evidence before the jury, move for a mistrial, request the court to instruct the jury not to consider the evidence, or file a motion to strike the statement from the record. Assuming the statement was inadmissible, plaintiff waived his right to complaint.” (citations omitted)

Not many cases are reversed these days because of the erroneous admission of evidence; consequently, it becomes increasingly important for trial counsel to realize the necessity of making the appropriate objection to the receipt of the evidence and presenting it to the appellate court in such form that it can be ruled upon without an unduly lengthy search of the record.

In this instance, I concur in the reversal of the judgment.

      . The next reference to this testimony is to be found in plaintiffs’ motion for new trial.

      . If it be argued that trial counsel and the judge had in mind plaintiffs’ objections as set out in the motion in limine, such fact did not obviate the necessity of specific objections being urged at the time the evidence was offered. K-Mart No. 4195 v. Judge, 515 S.W.2d 148, 152 (Tex. Civ.App. — Beaumont 1974, writ dism’d).


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Fred RIZK, Appellant, v. FINANCIAL GUARDIAN INSURANCE AGENCY, INC., Appellee.
    No. 17246.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 7, 1978.
    Rehearing Denied Jan. 4, 1979.

      Day & Elliott, Richard H. Elliott, Dallas, for appellant.
    Ronald G. Wiesenthal, Houston, for ap-pellee.
   PEDEN, Justice.

This is an appeal from the granting of a summary judgment in favor of Financial Guardian Insurance Agency, Inc. (Agency) in a suit on a sworn account for insurance premiums. The trial court also granted the Agency’s motion for an attorney’s fee after considering evidence at a later hearing.

The Agency filed this suit against Fred Rizk and three others, individually and doing business as Sheraton-Safari Inn and as Cert, alleging that it sold the Inn certain insurance policies, that the Inn was $11,-450.98 in arrears, that demand had been made, that thirty days thereafter payment had not been made, so it became necessary to hire an attorney. Attached to the Agency’s sworn pleadings were a statement of the account and a summary. The statement indicates that the beginning dates of the policy periods ranged between July 5, 1974 and June 31, 1975. This suit was filed on August 22, 1977. The petition contains an affidavit that meets the requirements of Rule 185, Texas Rules of Civil Procedure.

In response to the Agency’s petition, Fred Rizk’s amended answer stated:

1.
Defendant denies each and every, all and singular the material allegations contained in Plaintiff’s Original Petition and demands strict proof thereof by a preponderance of the evidence as required by law.
2.
Each and every item in Plaintiff’s account attached to the Original Petition as Exhibit “A” is not just or true in whole or in part. Defendant did not request Plaintiff to furnish the items listed therein or agree or promise to pay plaintiff for the charges shown therein.
3.
Defendant asserts his affirmative defense of failure of consideration.
4.
Plaintiff’s cause of action on its account, or a part thereof, is barred by the applicable two year statute of limitations, and accordingly should be dismissed.
5.
Defendant denies Plaintiff is entitled to recover any attorney’s fees in this cause, and furthermore denies that $4,000.00 is a reasonable attorney’s fee.

Attached to this answer was Mr. Rizk’s affidavit that “the foregoing Amended Original Answer and that the facts and statements contained therein are true and correct of his own personal Knowledge.”

The trial court granted summary judgment in the amount sued for plus interest and court costs, awarded attorney’s fees in the amount of $2500, and severed the cause against Fred Rizk from the original suit.

Rule 185 of the Texas Rules of Civil Procedure, entitled “Suit on Sworn Account”, states in pertinent part:

When any action or defense is founded upon an open account or other claim for goods . . . based upon written contract or founded on business dealings between the parties ... on which a systematic record has been kept, and is supported by the affidavit of the party. . the same shall be taken as pri-ma facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true . . When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any items therein, as the case may be.

Rule 93(k) of the Texas Rules of Civil Procedure also prescribes the words to be used in the sworn denial:

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

Mr. Rizk contends that his answer complies with these rules, thus putting the validity of the figures relied upon by the Agency in issue.

A defendant’s verified denial of the correctness of a plaintiff’s sworn account destroys the probative force of the itemized account attached to the petition and forces the plaintiff to put on proof of his claim. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941); Burrus Mills, Inc. v. Hein, 399 S.W.2d 950, 951 (Tex.Civ.App.1966, writ ref’d n. r. e.). If a defendant files an answer not in compliance with Rules 93(k) and 185, he is not permitted to deny the plaintiff’s claim or any item therein. Collins v. Kent-Coffey Mnfg. Co., 380 S.W.2d 59 (Tex.Civ.App.1964, writ ref’d n. r. e.).

Although Mr. Rizk’s answer that the account “is not just or true in whole or in part” is not in strict compliance with Rules 93(k) and 185, “in whole or in part” is construed as a denial of the whole with the additional words being simply surplusage. 1 McDonald, Texas Civil Practice 240, § 7.31 (1970).

The Agency maintains that because Mr. Rizk filed inconsistent verified pleas, the validity of his allegation that each and every item of the Agency’s account was not just or true is destroyed. To support its position, the Agency relies on the cause of Golub v. Nelson, 441 S.W.2d 220 (Tex.Civ.App.1969, no writ). In that suit on a sworn account the defendant’s answer consisted of a general denial, an allegation that the accounts pleaded failed to allow a credit which he was entitled to receive, and an allegation that the plaintiff’s claim was “not just and true, in whole or part.” An' affidavit stated “that the allegations here-inabove set forth * * * are true and correct.” The court held that the answer did not destroy the evidentiary effect of the plaintiff’s verified petition. “It was an affidavit to the effect that the general denial and the plea in confession and avoidance, as well as the denial of the justness of plaintiff’s account, were true. A party has the right, under Rule 48, T.R.C.P., to allege alternate and inconsistent claims or defenses. However, in those situations in which a pleading, to be effective, must be verified, the verification must be positive and unequivocal. McDonald, Texas Civil Practice, Vol. 2, p. 505 (now found at 2 McDonald Texas Civil Practice 39, § 5.15.1). A purported verification of two or more inconsistent or alternative defenses does not meet that requirement.”

In our case the defendant explained his denial that each and every item in the plaintiff’s account was just or true by alleging that he had neither requested the insurance in question nor promised to pay for it. Since Rizk’s sworn general denial (the first paragraph of his answer) was not an effective response to the plaintiff’s verified petition on a sworn account, his explanation did not amount to a denial that the insurance policies in question were requested by an authorized party with Sheraton-Safari Inn who promised to pay for it.

We overrule the first point of error.

In his second point of error, Mr. Rizk contends that a fact issue was raised as to whether the Agency’s cause of action, or a part thereof, is barred by the two-year statute of limitations. That statute, Art. 5526, V.T.C.S., includes a provision that there shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward:

5. Actions upon stated or open accounts, other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents. In all accounts, except those between merchant and merchant, as aforesaid, their factors and agents, the respective times or dates of the delivery of the several articles charged shall be particularly specified, and limitation shall run against each item from the date of such delivery, unless otherwise specifically contracted.

The appellee contends that the recovery of insurance premiums is controlled by Article 5527, which provides:

There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.

Mr. Rizk offered no summary judgment evidence in support of his affirmative defenses. In a frequently—cited opinion, Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353 (Tex.Civ.App., 1942, writ ref’d w. o. m.), it was stated:

It seems to be well settled that . a defendant, in the absence of a sworn denial of the account as provided in Art. 3736 [now Rule 185], may prove that the account has been paid, or that it is barred by limitation .

Thus, regardless of whether Mr. Rizk’s denial met the requirements of Rule 185, he was entitled to show that the account is barred by limitations.

In this case, the defendant need not offer proof that the insurance policies were issued more than two years before this suit was filed. The allegations of the plaintiff’s petition are judicial admissions binding on it and thus constitute summary judgment evidence against it even though, as pleadings, they are not summary judgment evidence in favor of the plaintiff. Douglas v. First State Bank of Athens, 538 S.W.2d 179, 181 (Tex.Civ.App.1976, no writ), citing Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942), and Canales v. Bank of California, 316 S.W.2d 314, 318 (Tex.Civ.App.1958, writ ref’d n. r. e.).

It is clear from the Agency’s petition and sworn account that it commenced this suit more than two and less than four years after the insurance policies went into effect.

Charlie Thomas Courtesy Ford, Inc. v. Sid Murray Agency, 517 S.W.2d 869 (Tex.Civ.App.1975, writ ref’d n. r. e.), was also a suit by an insurance agency on a sworn account for insurance premiums. The court held at page 876:

. The trial court concluded that the applicable period of limitation was four years and that no part of the transactions sued upon was barred by limitations. That conclusion does not state what statute it is based on. We believe, however, that the trial court’s conclusion can be upheld on the basis of Art. 5527, V.A.C.S., which allows four years to bring an action for debt where the indebtedness is evidenced by or founded upon any contract in writing. The contracts in writing here, of course, are the insurance policies and the suit for payment of premiums on these policies is governed by Art. 5527, supra. Dennis v. Layer, 103 S.W.2d 440 (Tex.Civ.App.—Galveston 1937, no writ); Ward v. Hanchett, 47 S.W.2d 360 (Tex.Civ.App.—San Antonio 1932, error dism’d, Tex.Com.App., 65 S.W.2d 268).

We conclude that Art. 5527, the four-year statute of limitations, is the applicable statute.

In his last point of error, Mr. Rizk contends that the trial court erred in awarding an attorney’s fee. Article 2226 provides:

Any person . . having a valid claim against a person or corporation for suits founded upon a sworn account or accounts, or suits founded on oral or written contracts, may present the same to such persons or corporation . .; and if, at the expiration of 30 days thereafter, payment . . . has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, (emphasis added)

We affirm the judgment of the trial court.


author: CORNELIUS, Chief Justice.

text:
    AETNA LIFE & CASUALTY COMPANY, Appellant, v. Ted B. LYON, Appellee.
    No. 8613.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 12, 1978.
    Rehearing Denied Jan. 30, 1979.

      Woodfin C. Henderson, Dallas, for appellant.
    Ted B. Lyon, Jr., Mesquite, for appellee.
   CORNELIUS, Chief Justice.

Aetna Life & Casualty Company appeals from a default judgment rendered against it in a suit brought by Ted B. Lyon.

Lyon was an employee of Alexander Hospital, Inc. On July 19,1968, Alexander and Aetna entered into a contract to provide retirement benefits for Alexander’s employees. Alexander was responsible for the funding of the plan, and Aetna was only to administer it. In September of 1969, Alexander was purchased by Chanco Medical & Electronics Industries, and subsequently Chanco was merged into American Medical International. In 1971, Lyon inquired of Aetna the amount of retirement benefit he would receive if he took early retirement on December 1, 1972, when he would be 62 years of age, as compared to the benefits he would receive if he waited until he was 65 on November 14, 1975. Unknown to Lyon, Alexander and its successors had not made the necessary contributions to the plan and it was not fully funded. Nevertheless, in response to Lyon’s inquiry, Aetna wrote him that they estimated “You will receive a monthly benefit of $135.14 on December 1, 1972. If you wait until your normal retirement date, you will receive $281.80.” Relying on the Aetna letter, Lyon delayed his retirement. Before he reached the age of 65, however, the plan was cancelled and Lyon received no benefits. He then brought suit against American and Aetna seeking to recover some $33,816.00 he allegedly lost by delaying his retirement. The cause of action against American was based upon breach of contract. Liability of Aetna was based upon allegations that it was a party to the third-party beneficiary contract which had been breached, and upon allegations that Aetna had negligently misrepresented the benefits Lyon would receive if he waited until age 65 to retire. It was alleged that when Aetna wrote Lyon it knew, or by the exercise of reasonable care should have known, that the plan was not being properly funded.

The suit was filed on December 6, 1976. American filed an answer, but Aetna, although served with citation on December 9, did not answer. On January 11, 1977, the district court granted Lyon an interlocutory default judgment against Aetna. On January 21, Aetna filed its motion to set aside the default, alleging mistake and accident in failing to answer. The district court held a hearing on March 18, and subsequently overruled the motion. On August 23, Lyon’s cause of action against Aetna was severed from that against American and the interlocutory default became final. On September 2, Aetna filed another motion to set the default aside, but it was also overruled. The only contention on appeal is that the district court erred in refusing to set aside the default judgment.

When a default judgment is rendered against a party, and motion to set aside the default is made during the time the trial court retains plenary control over its judgment, the default should be set aside and a new trial granted if it appears that the movant’s failure to answer or appear was not intentional or the result of conscious indifference but was due to an accident or mistake, and if the motion sets up a meritorious defense to the cause of action which forms the basis of the judgment and is filed at a time when no material delay or other prejudice to the opposite party will result. Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966); Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939); Spears v. Brown, 567 S.W.2d 544 (Tex.Civ.App.Texarkana 1978, writ ref’d n.r.e.); Pierson v. McClanahan, 531 S.W.2d 672 (Tex.Civ.App.Austin 1975, writ ref’d n.r.e.); 4 McDonald’s, Texas Civil Practice, Secs. 18.10.1, 18.10.2, 18.10.3, pp. 266-270. If those requirements are met, the movant need not show a good excuse for his default, in the sense that he is free from negligence. Ward v. Nava, 488 S.W.2d 736 (Tex.1973); Spears v. Brown, supra; Hughes v. Jones, 543 S.W.2d 885 (Tex.Civ.App.El Paso 1976, no writ); Continental Airlines, Inc. v. Carter, 499 S.W.2d 673 (Tex.Civ.App.El Paso 1973, no writ); Kirk v. Farmer’s Aerial Spraying Service, Inc., 496 S.W.2d 739 (Tex.Civ.App.Amarillo 1973, no writ); Texas Iron & Metal Co., Inc. v. Utility Supply Co., 493 S.W.2d 545 (Tex.Civ.App.Houston-1st Dist. 1973, writ ref’d n.r.e.); In Re Williamson, 437 S.W.2d 913 (Tex.Civ.App.Beaumont 1969, writ ref’d n.r.e.); Black v. Johnson, 404 S.W.2d 382 (Tex.Civ.App.El Paso 1966, writ ref’d n.r.e.); Box v. Associates Investment Company, 352 S.W.2d 315 (Tex.Civ.App.Dallas 1961, no writ); Smith v. Hills-boro State Bank, 253 S.W.2d 897 (Tex.Civ.App.Galveston 1952, no writ); 4 McDonald’s, Texas Civil Practice, Sec. 18.10.2, p. 268. Only a slight excuse is required under those circumstances. Craddock v. Sunshine Bus Lines, supra; Spears v. Brown, supra; Beard v. McKinney, 456 S.W.2d 451 (Tex.Civ.App.Houston-1st Dist. 1970, no writ); Cadena v. Dicker, 383 S.W.2d 73 (Tex.Civ.App.Dallas 1964, no writ).

To demonstrate that its failure to answer was not the result of conscious indifference, Aetna alleged in its sworn motion that: citation was served by a deputy constable who left a copy with a claims adjuster in Aetna’s Casualty Division in Dallas. As the matter involved a group policy, the adjuster delivered the copy to the office of the Group Insurance Division, and the copy was then delivered to the Group Division Manager, Mr. Sanders. Because the entire file pertaining to American’s group plan had been sent to Aetna’s home office several years previously, Sanders assumed that what had been handed to him was a copy for his office, and that the legal defense was being handled by the home office. As a result, Aetna failed to retain counsel by the answer date, and default judgment was taken. On January 20, when Sanders discovered that the default judgment had been entered, he immediately contacted an attorney in Dallas who, on the following day, filed a motion to set aside the judgment.

The recited facts are sufficient to show that Aetna’s failure to answer was due to an accident or mistake, and it would have been entitled to a new trial had it met the other requirements as enunciated in Ivy v. Carrell, supra, and Craddock v. Sunshine Bus Lines, supra. It clearly appears, however, that Aetna failed to set up a meritorious defense to Lyon’s cause of action.

By setting up a meritorious defense it is meant that the movant must allege in his motion facts which would constitute a defense to the cause of action, and support those factual allegations by affidavits or other evidence constituting prima facie proof of such defense. Ivy v. Carrell, supra; Craddock v. Sunshine Bus Lines, supra; Pierson v. McClanahan, supra; 4 McDonald’s, Texas Civil Practice, Secs. 18.10.1, 18.10.2, 18.10.3, pp. 266-270. The allegations made by Aetna concerning a meritorious defense were that Aetna (1) was only the administrator of the pension fund and had no responsibility to fund it, (2) had no control over the funding of the plan, (3) had no legal responsibility for Lyon’s damage, and (4) had no legal duty to Lyon concerning any representation it made to him. But, Lyon’s petition, in addition to alleging that Aetna breached the pension plan contract executed for his benefit, also alleged a cause of action for negligent misrepresentation in that (1) Aetna told him by letter that if he delayed his retirement he would receive certain benefits, (2) at the time of writing such letter Aetna knew that American was not funding the plan, or by the exercise of reasonable care should have known that fact, (3) the representation was false, (4) Lyon relied upon such representation, and (5) Aetna should therefore be “es-topped” from denying liability for Lyon’s damages.

Aetna argues that these allegations only attempt to create a cause of action by estoppel, and that because estoppel is defensive in nature and cannot be relied upon to create a remedy, the motion set up a meritorious defense by pointing out that Lyon had failed to state a valid cause of action. It is true that, if correct, an allegation that the plaintiff’s petition fails to state a cause of action may constitute a meritorious defense for the purposes of a motion for new trial in these circumstances. Rector v. Metropolitan Life Insurance Company, 506 S.W.2d 696 (Tex.Civ.App.Houston-1st Dist. 1974, writ ref’d n.r.e.). But, although Lyon here used terms of estoppel, he actually alleged a cause of action for negligent misrepresentation, a remedy which is recognized by the Restatement and by Texas case law. See Restatement (Second) of Torts, Sec. 552 (1977); Shatterproof Glass Corporation v. James, 466 S.W.2d 873 (Tex.Civ.App.Fort Worth 1971, writ ref’d n.r.e.), and cases there cited. By no reasonable interpretation can Aetna’s motion be considered to have set up a meritorious defense to such a cause of action. Neither the misrepresentation nor the negligence in making it was denied. Nor was there a denial of any of the other facts upon which the cause of action was based. Aetna did allege that the representation was not actionable because there was no duty owed to Lyon, but such a contention is not valid under the cause of action for negligent misrepresentation as recognized by the authorities. See Restatement (Second) of Torts, Sec. 552 (1977).

As Aetna’s motions did not set up a meritorious defense to Lyon’s cause of action, there was no abuse of discretion on the district court’s part in refusing to set aside the default judgment.

The judgment is affirmed.


author: HALL, Justice.

text:
    BRAZOS ELECTRIC POWER COOPERATIVE, INC., Appellant, v. William Michael TAYLOR et ux., Appellees.
    No. 5916.
    Court of Civil Appeals of Texas, Waco.
    Dec. 14, 1978.
    Rehearing Denied Jan. 18, 1979.

      Philip R. Segrest, Segrest, Mills, Cameron & Riley, Waco, Tim Altaras, Altaras, Altar-as & Pritchard, Cleburne, for appellant.

      Kenneth W. Boyd, Law Office of Michael J. Rogers, Cleburne, for appellees.
   HALL, Justice.

This proceeding was brought by appellant Brazos Electric Power Cooperative, Inc., against appellees William Michael Taylor and wife, to condemn an easement and right-of-way 60 feet wide, containing 1.63 acres of land, upon and across a tract of approximately six acres owned by appellees in Johnson County, for the purpose of reconstructing and converting an existing electric transmission line owned by appellant across the tract from 69 KV to 138 KV, and for maintaining the line. The Taylors were left use of the easement premises to the extent their use did not interfere with Brazos Electric’s easement rights. The date of taking was June 25, 1974.

All issues except damages were eliminated by stipulations, and the parties were realigned for trial with the Taylors as plaintiffs and Brazos Electric as defendant. We shall refer to the parties by those trial court designations.

Trial was to a jury on December 13,1977. Answering special issues numbered as follows, the jury made these findings:

1. Considered as severed land, the market value of the easement premises immediately prior to the taking was $4,617.79.
2. Considered as severed land, the market value of the easement premises immediately after the taking was $1,385.34.
3. Excluding the easement premises, the value of plaintiffs’ remaining land immediately prior to the taking was $12,382.21.
4. Excluding the easement premises, the value of • plaintiffs’ remaining land immediately after the taking was $3,714.66.
5. Defendant’s reconstruction work on the easement premises since June 25, 1974 (the date of taking) caused erosion on the land in question.
6. $3,000.00 would fairly and reasonably compensate plaintiffs for restoring the erosion caused by defendant.

Judgment was rendered on the stipulations and the verdict granting defendant its easement and awarding plaintiffs $14,-900.00 damages. Defendant brought this appeal. Defendant’s complaints for reversal may be summarized as follows:

1. The court erred in submitting special issues 5 and 6 to the jury over defendant’s objection and rendering judgment thereon because those issues submitted an improper measure of damages and the judgment thereon allowed plaintiffs a double recovery.
2. The court erred in admitting evidence over defendant’s objection relating to the cost at the time of trial of restoring the eroded land because the date of taking (June 25, 1974) and not the date of trial (December 13, 1977) was the proper date for such valuation in this condemnation proceeding.
3. The evidence is legally and factually insufficient to support the jury’s answers to special issues 2, 4, 5, and 6; and the awards to plaintiffs based on those answers are excessive under the evidence.

Defendant’s objections to the submission of Special Issues 5 and 6 were that number 5 was “a comment on the weight of the testimony” because it assumed defendant caused erosion on plaintiffs’ land, and that number 6 “does not submit the proper measure of damages.” Rule 274, Vernon's Tex.Rules Civ.Proc., provides that a party objecting to the court’s charge “must point out distinctly the matter to which he objects and the grounds of his objection,” and that any complaint as to an issue on account of any defect shall be deemed waived unless specifically included in the objection. Defendant’s objections to Issues 5 and 6 did not include its complaint on appeal that those issues, in connection with the other issues, allowed plaintiffs a double recovery and that complaint was therefore waived. Specifically, the objection that Issue 6 “does not submit the proper measure of damages” was too general to preserve for review any error in the issue. Whitson Company v. Bluff Creek Oil Company, 156 Tex. 139, 293 S.W.2d 488, 493 (1956).

There was uncontradicted testimony that defendant’s destruction of vegetation on the easement premises caused substantial erosion, and that the reasonable cost of restoring the eroded land would be $4,500.00 to $5,100.00. We hold the evidence was both legally and factually sufficient to support the jury’s answers to Special Issues 5 and 6.

The measure of damages arising from temporary injury to land is ordinarily the cost and expense of restoring the land to its former condition, plus any loss or damages occasioned by being deprived of the use of the land, with interest. Bradley v. McIntyre, 373 S.W.2d 389, 391, (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.). Under that rule the injured party is entitled to damages caused by the injury up to the time of trial. Texas Electric Service Company v. Linebery, 333 S.W.2d 596, 598 (Tex.Civ.App.—El Paso 1960, no writ). Accordingly, defendant’s objection to testimony showing the cost at the time of trial of restoring plaintiffs’ land was properly overruled.

Simple mathematical calculations show that excepting discrepancies or figure-adjustments which fall within the maxim de minimis non curat lex the jury in their answers to Special Issues 1 and 3 valued the 1.63-acres easement tract and also the remainder containing approximately 4.37 acres at $2,833.00 per acre before the taking, and that in their answers to Special Issues 2 and 4 the jury valued the easement tract and also the remainder at $850.00 per acre after the taking. We hold the evidence is legally sufficient to support those answers.

Plaintiffs’ land contains approximately six acres. Although plaintiffs reside on it, on defendant’s motion and objections both the easement tract and the remainder were valued as unimproved land at the trial. The evidence shows that plaintiffs’ six-acres tract is 201 feet wide on its East and West ends and 1200 feet long on its North and South sides. It is located partly in the City of Joshua, and its East end is bordered by State Highway 174 which is “a divided, four-lane, busy, major highway in Johnson County.” The 60-feet wide easement runs the length of the six acres near the middle of the tract, thus dividing the original tract into three “long, slender pieces of property.” Defendant’s transmission lines are supported the length of the easement on several tall “H” frames. The portion of the six acres fronting on the highway is far more valuable than the rear portion. Plaintiffs’ expert witness testified: “Actually, you just wind up with two pieces of property. You have the [highway] frontage of 89 feet [on the tract north of the easement] and the frontage of fifty-two feet [on the tract south of the easement]. And, certainly, if it was all combined together where you had two hundred and one, you might be able to do something with it. But the fifty-two would be limited to the building. And so would the eighty-nine. And you certainly couldn’t build anything under the power line. So, essentially, it is lost.” He set the value of the easement premises before the taking at $10,500.00 and after at $3,300.00, and set the value of the remainder at $28,-500.00 before and $18,000.00 after. Although defendant’s expert witness testified that the easement premises decreased in value from $3,260.00 to $2,293.00 as a result of the taking, he stated that the remainder was not damaged and that its value was $12,426.00 both before and after the taking. He also testified that the highest and best use for all the property both before and after the taking was as “a low cost mobile home park.” He said, “There aren’t too many of those in Johnson County. The property configuration of the property is ideal for that type of enterprise. Therefore we construed that to be the highest and best use.” Plaintiff Mr. Taylor testified that the value of the easement strip before the taking was $12,000.00, and that its value after was “Nothing. Zero to me. I’m sure it had some market value, but [when] I bought the place I didn’t have no buildings or fixtures under the [transmission lines] whatsoever.” He valued the remaining land at $38,000.00 before the taking and $20,000.00 after.

As trier of the facts, it was the jury’s prerogative and duty to weigh all the evidence, ferret out what they believed to be its most credible parts, and answer the value questions accordingly. The testimony of plaintiffs’ expert witness set the reduction in value of the easement premises at $4,409.00 per acre. The jury’s findings that the value of the easement premises was $2,833.00 per acre before the taking and $850.00 per acre after the taking is supported by testimony of the witnesses and the other evidence set forth above. Additionally, under the evidence, the jury was justified in believing that as unimproved land the easement premises and the remaining acreage had the same highest and best use and the same values per acre both before and after the taking.

Our review of all the proof convinces us that the jury’s answers are not against the great weight and preponderance of the evidence.

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


text:
    Doil TREADWAY, Appellant, v. Nancy TREADWAY, Appellee.
    No. 8633.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 19, 1978.
    Rehearing Denied Jan. 30, 1979.

      Harry B. Friedman, Harkness, Friedman, Kusin & Hooper, Texarkana, for appellant.
    M. Mark Lesher, Lesher & Franks, Texar-kana, for appellee.
   CORNELIUS, Chief Justice.

Doil Treadway appeals from the property division portions of a divorce decree rendered by the District Court of Bowie County on February 28, 1978.

Among other provisions, the decree contained the following:

“Additionally, IT IS DECREED that the following property is community property, that a RECEIVER shall be appointed either by agreement of counsel or by the Court to take control of the following community property and that after a RECEIVER is appointed the following community property shall be sold at a public sale and the proceeds shall be deposited in the Registry of the Court for further ORDERS of the Court:
A. ONE HUNDRED THIRTY-EIGHT AND ONE-HALF (138½) acres of land in the Peters Edwards Survey located in Cass County, Texas as set out in Respondent’s Amended Inventory and Appraisement and Petitioner’s Inventory and Appraisement;
B. All bulls, cows, heifers, calves, mules, and goats currently in the possession of the Respondent;
C.One (1) cattle trailer in possession of the Respondent.”

A receiver was appointed on March 1,1978, but as far as the record reflects no sale has been made or reported.

Except in certain cases governed by special statutes, this Court has no jurisdiction to entertain appeals from interlocutory judgments, but only from those which are final. To be considered a final judgment on the merits for appeal purposes, a judgment must settle all disputed material issues between the parties which require the exercise of judicial discretion. 4 McDonald’s, Texas Civil Practice, Sec. 17.03.1, p. 35. If that is done the judgment will not be considered interlocutory even if ancillary matters remain to be done, provided that such matters are purely ministerial. International Security Life Insurance Co. v. Spray, 468 S.W.2d 347 (Tex.1971); 4 McDonald’s, Texas Civil Practice, Sec. 17.03.3, p. 42. But if the court reserves for a future time the settlement of some of the parties’ rights, not based upon a change of conditions, the judgment is not final. Compare: Gani v. Gani, 495 S.W.2d 576 (Tex.1973).

It is clear that the judgment in question here is interlocutory. It provides for a future sale of a substantial portion of the parties’ community property and for the proceeds of such sale to be deposited in the registry of the court for further orders of the court. Had the court awarded or divided the sale proceeds, whatever they may be, to or between the parties, the enforcement of the judgment would have been a purely ministerial act and the judgment’s finality would not have been affected. But that was not done. The parties’ rights to the sale proceeds have not been settled or adjudicated, but the judgment of the court on that issue is reserved to a future date. In that situation, the judgment is not final for appeal purposes.

Although the judgment is interlocutory, we note that it is erroneous in at least one respect, in that it purports to divest the title to community property from both of the spouses who own it and vest the fee title thereto in the children of the parties, a procedure which is not permitted in a proceeding between only the spouses and involving only divorce, child custody and partition of the community estate. See Williams v. Williams, Okl., 428 P.2d 218 (1967); Feldmann v. Feldmann, 166 Kan. 699, 204 P.2d 742 (1949); Johnson v. Johnson, 284 Minn. 181, 169 N.W.2d 595 (1969); 27B C.J.S. Divorce § 293, p. 272. Before the judgment is made final, the district court will no doubt want to correct that error, as well as other errors which may be contained in the judgment.

The appeal is dismissed.


author: DOYLE, Justice.

text:
    Melvin A. FERGUSON, Appellant, v. W. A. WILLIAMSON, Jr., Appellee.
    No. 17223.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 21, 1978.
    Gerald S. Gordon, Gary E. Parks, Houston, for appellant.
    Parks, Keezel & Tradd, Alex Tradd, Bel-laire, for appellee.
   DOYLE, Justice.

This is an appeal from an order sustaining defendant’s plea of privilege to be sued in Washington County, Texas, where he resided. Plaintiff, Melvin A. Ferguson, contends that since his suit is one for the recovery of land which is situated in Fort Bend County, Texas, venue should lie in such county by virtue of Subdivision 14 of Article 1995, V.A.T.S.

The record on appeal consists of the transcript only. Plaintiff relies on the sufficiency of his Original Petition to sustain his contention. Defendant filed a general denial, subject to his plea of privilege. Upon a request by plaintiff, the trial court filed Findings of Fact and Conclusions of Law which contained, inter alia, that “plaintiff’s petition is not a suit for recovery of lands or damages thereto or to remove incumbrances upon title to land but is in fact merely for the sale or partition of assets”.

The question before this court is whether or not plaintiff’s suit, viewed from the pleadings only, brings it within the purview of Subdivision 14, Article 1995, which reads as follows:

Suits for the recovery of lands or damages thereto, or to remove incumberances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands must be brought in the county in which the land, or a part thereof, may lie.

It is undisputed that the subject land is located in Fort Bend County. The remaining venue fact to be proven is whether the suit is for the recovery of land. Higginbotham-Bailey-Logan Co. v. Hancock, 4 S.W.2d 583 (Tex.Civ.App.—Eastland 1928, no writ); Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d); Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954); Levinson v. Slater, 565 S.W.2d 337 (Tex.Civ.App.—Corpus Christi 1978).

Plaintiff’s Original Petition contains the following relevant paragraphs:

2.
“Plaintiff MELVIN A. FERGUSON, Defendant W. A. WILLIAMSON, JR., M.D., and Fred Williams entered into a joint venture on or before January 15, 1964, to purchase, improve and sell three tracts of land in Fort Bend County, Texas, described as:
Lots 36, 37, and 51, Venetian Estates, Fort Bend County, Texas.
3.
The terms of the joint venture between Plaintiff and Defendant were that the purchase price of the property and cost of materials would be advanced by Defendant with Plaintiff to provide all labor in connection with the improvements of the lots, in return for which, Plaintiff was to have a one-third interest in the profits received as a result of the sale of the improved lots. However, for the purpose of obtaining financing and convenience, the title of said property was to be taken in Defendant’s name. Shortly after the formation of the joint venture, Fred Williams withdrew therefrom.
4.
On September 4th, 1964, by Warranty Deeds from Belkap Realty Company (recorded in Volume 457, pages 229, 232 of the Deed Records of Fort Bend County, Texas), the property was conveyed to Defendant for a consideration advanced by said Defendant.
5.
The purchase price and all expenses in connection with said acquisition were, in accordance with the verbal agreement of the parties, paid by Defendant and Plaintiff performed his services in connection with the improvements to the subject property. Plaintiff and Defendant used money and labor for the construction of improvements on said property, consisting of single family residences.
6.
It was agreed by Plaintiff and Defendant that upon completion of the improvements, said property would be sold and the proceeds divided between them on the basis of one-third each.
7.
Upon completion of the improvements on the subject lots, the market was such that ready, willing and able purchasers were unable to be found. Consequently, title to the subject lots and improvements was retained in Defendant, and the property was thereafter leased to various tenants. On or about February 7th, 1966, Defendant Williamson conveyed by warranty deed Lot 37 of Venetian Estates, Fort Bend County, Texas, to Don E. Williamson and wife. Said deed is recorded in Volume 472, page 630, of the Deed Records of Fort Bend County, Texas. The consideration for the above-described conveyance is unknown to the Plaintiff.
8.
Defendant now denies that Plaintiff has any interest in said property and refuses to sell or in any way or manner share the proceeds of such sale with the Plaintiff.
9.
The facts and circumstances contained herein show the establishment of a constructive trust with Defendant as Trustee and Plaintiff and Defendant as the beneficial owners of said property in the proportion of one-third each. The establishment of such trust is, under the provision of VATS, Article 7425b-2, exempted from the application of the Texas Trust Act.

10.

Plaintiff is entitled to a partition of the foregoing property so held by Defendant as Trustee as above set forth; however, as it cannot be equitably partitioned in kind, (1) the property should be sold for cash by private sale through a Receiver appointed by this Court, with Plaintiff receiving a one-third share of such proceeds; (2) in the event that the property has heretofore been sold by Defendant, Defendant should account to Plaintiff for one-third of the proceeds of any such sale: (3) alternatively, Defendant should be ordered to convey, free of any trust, one of the subject lots to Plaintiff.

WHEREFORE, Plaintiff prays that the Court (1) determine that the property above-described, together with the improvements hereon, is held by Defendant W. A. Williamson, Jr., M.D., in trust for the benefit of himself and Plaintiff, with Plaintiff being entitled to an undivided one-third interest in each of such lots; (2) order the sale of the property by private sale by Receiver appointed by this Court, for cash; (3) distribute one-third of the proceeds of such sale to Plaintiff; (4) order Defendant to account for Plaintiff for the proceeds of any sale of such property heretofore held; (5) grant to Plaintiff judgment for costs of Court and for such other and further relief to which he may be justly entitled.”

In determining the nature of plaintiff’s suit, the cases uniformly hold that we must look only to the facts as alleged in plaintiff’s petition and therefrom garner what principal rights and relief are sought. W. B. Johnson Drilling Co. v. Lacy, 336 S.W.2d 230 (Tex.Civ.App.—Eastland 1960, no writ); Wagner v. Pulliam, 361 S.W.2d 470 (Tex.Civ.App.—Eastland 1962, no writ); Pickins v. Langford, 270 S.W.2d 285 (Tex.Civ.App.—San Antonio 1954, no writ); Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App.—Fort Worth, 1950, no writ).

In the Miller case, supra, the suit involved the settlement of partnership assets which included realty. Plaintiff therein sought to fix venue where the realty was located. The court in denying plaintiff’s plea of privilege, determined from the pleadings that the suit was in fact a bill of equity for accounting and division of partnership assets and that any sale or partition of land was incidental to the principal relief sought. The holdings of the courts of Gold v. Simon, 424 S.W.2d 32 (Tex.Civ.App.—Fort Worth 1968, no writ); Kirshenbaum v. Smith, 480 S.W.2d 500 (Tex.Civ.App.—El Paso 1972, no writ); and Milburn v. Minette, 278 S.W.2d 269 (Tex.Civ.App.—El Paso 1955, no writ), support the provisions that in venue cases, such as the one before this court, the petition must allege such facts as will show that the principal relief sought is for the recovery of an interest in land as opposed to an accounting and division of partnership or joint adventure assets. From plaintiff’s pleadings, we find that the main thrust of his suit is for the sale and partition of assets which include some land together with an accounting for any land previously sold, and hence is not a suit involving realty within the meaning of Subdivision 14 of Article 1995.

Plaintiff’s second and third points of error are interdependent and will be considered together. The central argument of his contention is that the court erred in failing to find that plaintiff’s suit was for partition of land under Subdivision 13, Article 1995, and that a constructive trust should have been imposed upon the real property located in Fort Bend County, Texas.

The court in the Miller case, supra, said:

When we look at all the allegations of plaintiffs’ petition, and interpret them so as to make them as harmonious as possible, and look for the principal rights asserted and the relief sought, we have to construe it as a bill in equity, cast in the mold recognized by countless decisions, having for its purpose an adjudication of the creation of the partnership and its dissolution, and an accounting as to all of its affairs.

The court further held that:

The suit is one of a kind which all the courts, except perhaps under unusual circumstances, have treated as a transitory action, one in personam and not in rem, and necessarily cognizable only in a court of equity, and not governed by the rules of venue which pertain to local actions, such as Subdivisions 12, 13 and 14 of Article 1995.

We have carefully read and considered each of the pertinent paragraphs of plaintiff’s Original Petition and the points of error urged and have concluded that the order of the trial court sustaining defendant’s plea of privilege is correct.

The judgment is affirmed.

COLEMAN, C. J., and PEDEN, J., concur.


author: COLEMAN, Chief Justice.

text:
    Daniel H. HENNIGAN, Appellant, v. HEIGHTS SAVINGS ASSOCIATION, Appellee.
    No. 17256.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 21, 1978.
    Rehearing Denied Jan. 18, 1979.

      Fred L. Fraser, Houston, for appellant.
    Bracewell & Patterson, Michael A. Pohl, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment in favor of Heights Savings Association in a suit to recover the balance due on a promissory note after allowing as a credit on the note the amount realized at a Deed of Trust sale. Daniel H. Hennigan, who assumed the note secured by the Deed of Trust, appeals from the judgment asserting that he was entitled to an offset for damages under the Texas Deceptive Trade Practices Act-Consumer Protection Act and the Federal Truth In Lending Act. The judgment will be affirmed.

Daniel H. Hennigan, an attorney, purchased a house on September 26, 1972. As part of the purchase transaction, Mr. Hen-nigan assumed a preexisting promissory note executed by Jeffery 0. McCollum, which was secured by a Deed of Trust. The Deed of Trust provided for an acceleration of the indebtedness in the case of an assumption sale unless Heights Savings Association should give its written approval of such sale. This approval was forthcoming and Hennigan began making the payments due under the note. He subsequently defaulted, and by letter dated January 12, 1976, Heights accelerated the note and declared all unpaid principal and interest to be due and payable. Thereafter the property securing the note was sold under the McCollum Deed of Trust and the proceeds of the sale were credited to the note. This suit for the balance due was then instituted.

The appellant first asserts that the trial court erred in rendering a summary judgment since the judgment denied him relief by way of setoff damages authorized by Section 17.50(b) of the Texas Deceptive Trade Practices Act (TDTPA). The TDTPA became effective on May 21, 1973. The Hennigan loan was consummated on September 26, 1972, eight months prior to the effective date of the TDTPA. Appellant contends, however, that his cause of action accrued on August 30, 1974, the date on which Heights for the first time demanded that Hennigan procure extended coverage insurance on the premises in addition to fire insurance previously required. Appellants rely on the holding of the Supreme Court of Texas in Woods v. Littleton, 554 S.W.2d 662 (Tex.1977), that the date of the acts which give rise to a cause of action under the Consumer Protection Act, rather than the date of the sale, determines the applicability of the Act.

Section 17.50(a)(1) and (3), provide that a consumer may maintain an action if he has been adversely affected by the use or employment by any person of an act or practice declared to be unlawful by Section 17.-46 of this chapter or by any unconscionable action or course of action by any person. Section 17.46, supra, provides that false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful. A number of acts which would constitute false, misleading, or deceptive acts or practices are listed in Section 17.46, none of which are similar to the actions complained of in this case.

Hennigan acquired the property in question from McCollum by a Warranty Deed containing a clause by which he specifically assumed the indebtedness of McCollum to Heights. By this transfer, Hennigan occupies the same relation to the mortgaged property as McCollum, and is bound by all the terms and conditions of the instruments executed by McCollum in connection with the purchase. City of Houston v. State, 171 S.W.2d 200 (Tex.Civ.App.—Dallas 1943, writ ref'd w. o. m.). The note which Mr. Hennigan assumed provided that the failure to place and keep fire and windstorm insurance upon the improvements in their full insurable value, or in the amount of the indebtedness, in some insurance company satisfactory to the holder of the note, loss payable to the holder of the note, shall cause the note to immediately become due and payable. In the Deed of Trust securing the note the grantor agreed to insure and keep insured all improvements upon said property against loss or damage by fire and windstorm, “and any other hazards as may be reasonably required from time to time by the beneficiary during the term of the indebtedness secured”. In the event the mortgagor failed or refused to furnish Heights the insurance required, the Deed of Trust authorized Heights to purchase the insurance and charge the cost thereof to the mortgagor. Some months after Hennigan acquired the property, Heights informed him that they would require extended coverage and offered to assist him in securing such coverage.

On the refusal of Mr. Hennigan to purchase extended coverage insurance, which includes windstorm, hurricane, hail, explosion, riot, civil commotions, smoke, aircraft, and land vehicles coverage, Heights procured such insurance and charged the premium for same to Mr. Hennigan. An exhibit in evidence reflects that the cost for the year 1974-1975 for the extended coverage was the sum of $68.00. Heights’ demand that Hennigan furnish insurance as authorized by the Deed of Trust did not constitute a false, misleading, or deceptive act nor did it constitute an unconscionable action or course of action.

In determining what constitutes a false, misleading, or deceptive act or practice in the conduct of trade or commerce we are referred to the interpretations given by the Federal Trade Commission and the Federal Courts to Section 5(a)(1) of The Federal Trade Commission Act [15 U.S.C.A. 45(a)(1)]. See Section 17.46(c), supra. Based on this provision of the Act, Henni-gan contends that any violation of the Federal Truth in Lending Act could constitute a violation of the Deceptive Trade Practices Act by being “bootstrapped” through the Federal Trade Commission Act. The Federal Truth in Lending Act requires that all “charges or premiums for insurance, written in connection with any consumer credit transaction, against loss of or damage to property . shall be included in the finance charge” under certain conditions. 15 U.S.C.A. Section 1605(c). If the premiums for property insurance written in connection with a loan are not included in the finance charge, this section requires the creditor to provide a clear and specific statement in writing setting forth the cost of the insurance “if obtained from or through the creditor”. This section refers to matters to be included in the Regulation Z Disclosure Statement which must be furnished to the borrower by the financial institution prior to the completion of the transaction. Since at the time this transaction was completed the TDTPA was not in effect, the failure to make such disclosure could not give rise to a cause of action under the state law even by “bootstrapping.” Stevens v. Rock Springs Natl. Bank, 497 F.2d 307 (10th Cir. 1974).

Hennigan has also alleged a cause of action under the Federal Truth In Lending Act. He complains that Heights did not on or before the subject transaction was consummated provide “a clear and specific statement in writing setting forth the cost of the insurance”. The Regulation Z disclosure, which Hennigan admits he received, provided that property insurance “if written in connection with this loan will not be furnished by the association but may be obtained by you through any person of your choice, . . ..” The cost of the insurance was not disclosed in this instrument.

No insurance was written in connection with this “consumer transaction”, and the record does not reflect that a policy of insurance was obtained from or through Heights Savings at the time of or in connection with the extension of credit to Henni-gan.

The Truth In Lending regulations issued by the Board of Governors of the Federal Reserve System pursuant to the Truth In Lending Act implement that Act. The purpose of the Act is to assure that every customer who has need for consumer credit is given meaningful information with respect to the cost of that credit. Other relevant credit information must also be disclosed so that the customer may readily compare the various credit terms available to him from different sources. 12 CFR Section 226.1(a)(2). One of the principal items required to be disclosed is the cost of required insurance. In the case of a loan secured by a first lien on a dwelling the cost of insurance is not required to be included in the finance charge (12 CFR Section 226.-8), but the cost of premiums for the term of the “initial policy or policies written in connection with the transaction, accompanied by a statement of the type of insurance and the term thereof” must be stated. 12 CFR Section 226.402. If the purchaser elects to purchase insurance otherwise than from or through the creditor, the creditor is not required to disclose the cost of the insurance or include the premium in the finance charge. 12 CFR 226.405(b).

In this summary judgment proceeding the burden is upon Hennigan to introduce summary judgment evidence to support his cause of action under the Truth In Lending Act in order to develop his affirmative defense of “offset”. There is no evidence that Hennigan purchased the policy of insurance in force at the time he assumed the loan from or through Heights Savings Association. The cost of the insurance was not financed by Heights. Since Heights included on the disclosure statement furnished to Hennigan, prior to the extension of credit to him, a statement informing him that he could choose the person through whom the insurance was to be obtained, there is no summary judgment evidence to support a cause of action under the Truth In Lending regulations. 12 CFR Section 226.4(a)(6).

A cause of action under the Truth in Lending Act is purely a creature of statute. The Act provides that the action may be brought in any court of competent jurisdiction “within one year from the date of the occurrence of the violation”. 15 U.S.C. Section 1640(e). Approximately five years and seven months elapsed between the time of the alleged violation and the filing of the amended answer asserting a setoff by reason of the Truth in Lending Act. The statutory cause of action had ceased to exist before it was asserted. Fenton v. Citizen Savings Association, 400 F.Supp. 874, 879 (C.D.Mo.1975); Lincoln First Bank v. Sielawa, 398 N.Y.S.2d 654 (N.Y.City Ct.1977). Hennigan asserts that he pled recoupment which constitutes a defense even though the same claim asserted as an independent cause of action would be barred by limitations. In support of this contention he cites Garza v. Allied Finance Co., 566 S.W.2d 57 (Tex.Civ.App.—Corpus Christi 1978, no writ hist.).

The rule in this state is that where the subject matter of a defense interposed by the defendant constitutes an independent cause of action which does not go to the foundation of the plaintiff’s demand, it cannot effect a reduction of the amount of the plaintiff’s recovery except by way of setoff, and the statutes of limitation are available to the plaintiff in respect to such a defense. On the other hand, if the subject matter of the defense be of an intrinsically defensive nature, which, if given effect, will operate immediately as a negation of the plaintiff’s asserted right to recover, or in abatement, either wholly or partially, of the amount claimed, the statute of limitation does not apply. Morris-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313 (1936). Henningan’s asserted causes of action under the Truth In Lending Act constitute an independent cause of action which does not go to the foundation of the plaintiff’s demand, and cannot effect a reduction of the amount of the plaintiff’s recovery except by way of setoff. The cause of action is barred by the applicable statute of limitations. Morris-Buick Co. v. Davis, supra.

The judgment is affirmed.

PEDEN and DOYLE, JJ., join in this opinion.


author: YOUNG, Justice.

text:
    Jose MAGANA, Jr., Appellant, v. Dolores H. MAGANA, Appellee.
    No. 1409.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 21, 1978.

      Don Leonard, Leonard & Van Meter, Fort Worth, for appellant.
    William G. Burnett, Sinton, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a suit in which the appellee, Dolores H. Magana, sued the appellant, Jose G. Magana, Jr., to adjudge custody and child support for their child whose custody was not established by their prior divorce decree. Appellant answered, but neither he nor his attorney appeared for trial on June 8, 1978. After hearing evidence, the trial court entered an order on June 9,1978, placing managing conservator-ship in the appellee and possessory conser-vatorship in the appellant. The judgment also provided that appellant should pay $150.00 per month child support.

Appellant filed a motion for new trial on June 23,1978. Generally speaking, the motion alleged that appellant had not been properly notified of the instant suit and that he had a meritorious defense because he had not been allowed to secure blood tests from all of the parties involved.

Appellant brings two points of error. Appellant’s first point contends that the trial court erred in hearing the instant case without giving the appellant at least ten days notice of the June 8 trial as required by Rule 245, T.R.C.P. By his second point, appellant asserts that he was entitled to and was denied an opportunity to secure a blood test under Tex.Fam.Code Ann. §§ 13.01-13.06 (Supp.1978). We affirm.

In his motion to set aside the trial court’s default judgment and secure a new trial we note that Mr. Magana, appellant, has not complied with the applicable rule stated in Ivy v. Carrell, 407 S.W.2d 212 (Tex.Sup.1966) and Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (Tex.Sup.1939), as follows:

“A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”

In Ivy, the Supreme Court said that the rule is also applicable to default judgments entered on failure of the defendant (Mr. Magana here) or his counsel to appear for trial (after answer). Tresselt v. Tresselt, 561 S.W.2d 626 (Tex.Civ.App.—Corpus Christi 1978, no writ). As will be shown hereafter, in the present case the appellant failed to “set up” a meritorious defense or to show that his failure to appear for trial was not intentional or the result of conscious indifference on his part or the part of his counsel. Ivy v. Carrell, supra, Combs v. Combs, 435 S.W.2d 166 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ); Strode v. Silverman, 217 S.W.2d 454 (Tex.Civ.App.—Waco 1949, writ ref’d).

To “set up a meritorious defense” does not mean that the motion should be granted if it merely alleges that the defendant “has a meritorious defense.” The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such a meritorious defense. Ivy v. Carrell, supra at 214; United Equitable Ins. Co. v. Sonnier, 428 S.W.2d 155, 157 (Tex.Civ.App.—Beaumont 1968, no writ).

The motion did not allege facts which in law would constitute a defense to the appellee’s cause. Appellee’s cause requested the court to adjudge custody in the appellee and to order the appellant to provide child support for their infant. The record shows that the parties were divorced in a suit heard on January 17, 1977, and in which a judgment was rendered on July 7, 1977. At the time of the divorce hearing, the parties apparently did not know that Mrs. Magana was pregnant. In the trial of the instant custody suit, Mrs. Magana testified that she was living with Mr. Magana up until January of 1977 and that the child was conceived in December of 1976. She further stated that they separated from each other in January of 1977 until the following June when they lived together again until August of 1977. Their child was born on September 10, 1977. In summary, the evidence indicates that the child was conceived during the marriage of Mr. and Mrs. Magana and is presumptively Mr. Magana’s child even though bom after the divorce. Tex.Family Code Ann. § 12.02 (Supp.1978). Caddel v. Caddel, 486 S.W.2d 141, 146 (Tex.Civ.App.—Amarillo 1972, no writ).

Under these facts, appellant’s only meritorious defense to his status as parent of the child was either to show that he was divorced from the appellee prior to conception or to show that though married to the appellee at the time of conception that he was either not accessible to the appellee or that he was impotent. Davis v. Davis, 521 S.W.2d 603, 607-08 (Tex.Sup.1975); Young v. Young, 545 S.W.2d 551,553 (Tex.Civ.App—Houston [1st Dist.] 1976, writ dism’d); Wedgman v. Wedgman, 541 S.W.2d 522 (Tex.Civ.App.—Waco 1976, writ dism’d). The appellant made none of the above allegations in his motion for new trial or even in his answer to this cause. It should also be noted that the appellant’s motion was not sworn to nor were any affidavits attached to it. Ivy v. Carrell, supra. Accordingly, we find that the appellant did not “set up a meritorious defense.”

Further, the motion for new trial failed to show that the appellant’s failure to be present at trial was not intentional or the result of conscious indifference on his part, or the part of his counsel. The record shows that on May 19, 1978, this case was duly set for trial on June 2, 1978 and that notice of the June 2 setting was sent to appellant’s counsel, Mr. Don Driver, on May 19, 1978. On May 30, 1978, appellant’s counsel moved to continue the cause so that the parties could undergo blood tests and so that the appellant could obtain different counsel. The trial was postponed until June 8, and appellant’s counsel, Driver, was sent notification of this setting. Driver, in an affidavit in the transcript, claimed he received notification of the new trial setting on June 6. In the affidavit, Driver further stated that he was unable to locate the appellant before the June 8 trial. Driver did not request a continuance in the cause. Driver did continue, however, as appellant’s attorney of record until June 19, 1978. It should be noted, therefore, that Mr. Driver’s knowledge of the trial setting was imputed to the appellant. 7 Tex.Jur.2d Rev., Part 1, Attorneys at Law § 58 (1975). Driver had the right to appear on appellant’s behalf of the merits or to seek a continuance. 7 Tex.Jur.2d Rev., Part 1, Attorneys at Law §§ 73, 74 (1975). Under these facts, we hold that appellant did not allege facts in his motion which would show that his failure to show up at trial was not due to conscious indifference of himself or his counsel. Compare Combs v. Combs, supra at 168. For these reasons alone it would have been proper for the court to overrule appellant’s motion for new trial.

There are other reasons we have to overrule appellant’s points. Appellant’s first point was not raised in the motion for new trial nor is there evidence that it was raised otherwise in the trial court. It cannot be raised for the first time on appeal. Valley Intern. Properties v. Los Campeones, 568 S.W.2d 680 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). Moreover we disagree with appellant’s contention that he was entitled to at least ten days notice of trial as required by Rule 245, T.R.C.P. His securing a continuance after proper notification waived any further right to additional notice under Rule 245. Tresselt v. Tresselt, supra.

We also disagree with appellant’s argument concerning his asserted absolute right to a blood test under Tex.Fam.Code Ann. §§ 13.01-13.06 (Sup.1978). Sections 13.01 through 13.06 apply to suits to establish paternity. They do not apply to suits to establish non-paternity. Smith, Commentary on Title Two, Texas Family Code, 8 Tex.Tech.L.Rev. 19, 52 (1976). All of appellant’s points are overruled.

The judgment of the trial court is affirmed.

      . Appellant’s motion for new trial provided in pertinent part as follows:
      I.
      “Respondent was not notified by his former attorney, DON DRIVER, that Respondent was to be present in court on the 8th day of June, 1978.
      II.
      Immediately upon notice that a judgment was entered in this cause, Respondent notified the undersigned attorney and this Motion was prepared.
      III.
      Respondent has a good and meritorious defense to Petitioner’s claim as shown in the answer filed herein.
      IV.
      Respondent would further show the Court that Chapter 13, Sub-Chapter A, Section 13.01 of the Family Code of the State of Texas, requires that blood tests be given before the trial of said cause.
      In this connection, Respondent would show that, although Respondent was willing and able to submit to such blood tests, he has never been afforded the opportunity to prove his innocence by said blood tests.
      V.
      Respondent would show that the trial of this cause would not be unnecessarily delayed because said blood tests are required, and Respondent is ready to proceed to trial immediately thereafter.”


text:
    Doyle BROWN d/b/a K & B Air Specialists, Appellant, v. DE LA GARZA SERVICE CENTER, INC., Appellee.
    No. 5964.
    Court of Civil Appeals of Texas, Waco.
    Dec. 21, 1978.

      J. Ken Nunley, Cluck, Dodson, Harpole & Nunley, Uvalde, for appellant.
    Rogelio F. Munoz, Uvalde, for appellee.
   HALL, Justice.

Plaintiff De La Garza Service Center, Inc., brought this suit against defendant Doyle Brown d/b/a K & B Air Specialists to recover $5,500.00 alleged to be the balance due to plaintiff on a written contract between the parties under which plaintiff agreed to furnish the materials and labor for installation of the heating, air conditioning, and ventilation systems in the U.S. Post Office Building in the City of Pearsall, Texas. Plaintiff also pleaded for $2,000.00 attorney’s fees under the provisions of Article 2226, Vernon’s Tex.Civ.St. After a trial before the court without a jury, judgment was rendered awarding plaintiff $4,999.15 under the contract and $1,666.38 attorney’s fees. Defendant appeals.

In support of its judgment the court filed formal findings of fact and conclusions of law, including these findings:

3. Plaintiff completed the work required of it and properly performed what was required of it under the contract.
4. Defendant still owes plaintiff $4,999.15 under the contract.
6. This is a suit for services rendered, labor done and materials furnished.
7. $1,666.38 is a reasonable fee for the services rendered by plaintiff’s attorney.

In his first two points of error, defendant asserts the evidence is factually insufficient to support the finding that plaintiff “properly performed what was required of it under the contract,” and that the evidence is legally insufficient to support the finding that defendant owes plaintiff $4,999.15 under the contract. Defendant bases both complaints upon the premise that plaintiff breached the contract by failing to timely complete its work. We overrule those contentions.

The primary contractor for the construction of the post office building was Survey- or Construction. Defendant was Surveyor’s subcontractor for the plumbing, electrical, and air conditioning work. In turn, defendant sublet some of that work to other contractors, including plaintiff. Plaintiff contracted with defendant to completely install the air conditioning, heating, and ventilation systems in the building and furnish the materials and labor for doing so for the total price $21,795.00. It is undisputed that plaintiff completed its work under the contract and that, after all offsets and credits claimed by defendant, plaintiff has not been paid $4,999.15 of the contract price by defendant.

Plaintiff’s contract with defendant was dated February 6, 1973. It did not specify a date for completion of the work. After the construction of the post office was completed, Surveyor Construction “back-charged” defendant with $8,224.56 asserting that defendant’s failure to meet the completion date in his contract with Surveyor cost Surveyor that amount in interim financing. Defendant did not contest the backcharge, nor the retainage that was kept by Survey- or to pay it. However, it was defendant’s theory and defense in our case that plaintiff caused the completion delay and the resulting backcharge by Surveyor by failing to meet the final inspection on the project by federal inspectors in August, 1973. There is evidence in the record supporting that defense. There is also evidence favoring plaintiff’s case that the inspection in August was not the final inspection but was an inspection at which the subcontractors were given lists by the inspectors of things remaining to be done or redone for final approval, that the final inspection was on September 28, 1973, that plaintiff completed its work several weeks ahead of that date, that plaintiff’s representative was present at the final inspection and was congratulated by the inspector and was told that plaintiff “had done a very good job,” and that plaintiff has not since heard from anyone concerning its work on the project.

It would serve no useful purpose for us to weight this opinion with the details of the evidence supporting the positions of the parties on the trial. As trier of the facts, it was the trial judge’s prerogative and duty to consider all the evidence, ferret out what he believed to be its most credible parts, and resolve the fact questions accordingly. He chose to accept the proof supporting plaintiff’s position. After reviewing the entire record, we hold the evidence is both legally and factually sufficient to support the questioned findings that plaintiff properly performed its contractual duties and that defendant owes plaintiff $4,999.15 under the contract.

In his remaining points of error, defendant asserts the evidence is legally and factually insufficient to support the finding and award of $1,666.38 as reasonable attorney’s fees. We hold there is no evidence to support the award.

Article 2226, Vernon’s Tex.Civ.St., provides that in connection with a suit for services rendered, labor done, or materials furnished, the claimant may also recover reasonable attorney’s fees. Plaintiff sued for attorney’s fees under that statute, and pleaded that a reasonable fee would be “the sum of at least $2,000.00.” On the trial plaintiff’s representative testified that plaintiff had contracted to pay its attorney a fee equal to one-third of its recovery against defendant. The award in question was based on that testimony. There was no other proof relating to the amount that should be awarded as attorney’s fees. Specifically, there was no evidence that one-third of the amount recovered by plaintiff would be a reasonable fee for the services rendered by plaintiff’s attorney.

Plaintiff argues that because his claim for attorney’s fees fell within the provisions of Article 2226, the court could “take judicial notice of the reasonableness of the attorney’s fee.” In support of that proposition plaintiff cites rulings in several cases which were based upon provisions then in Article 2226 permitting courts in non-jury cases to take judicial knowledge of the State Bar Minimum Fee Schedule and of the contents of the case file “in determining the amount of attorney’s fees without the necessity of hearing further evidence.” Our case was tried in February, 1978, after those provisions had been deleted from the statute. See, Acts 1977, 65th Leg., p. 153, ch. 76, § 1, eff. Aug. 29, 1977. Accordingly, the amount of reasonable attorney’s fees could not be adjudicated on judicial knowledge, and it was plaintiff’s duty to establish the claim by competent evidence. Great American Reserve Insurance Company v. Britton, 406 S.W.2d 901, 907 (Tex.Sup.1966); Reynolds Research & Manufacturing Co. v. Scamardo, 412 S.W.2d 941, 943 (Tex.Civ.App.—Waco 1967, no writ).

The award of attorney’s fees is set aside. The remainder of the judgment is affirmed. The issue of attorney’s fees is severed and is remanded for trial. Rule 434, Vernon’s Tex.Rules Civ.Proc.; Great American Reserve Insurance v. Britton, supra.

Costs of this appeal are taxed 75% against defendant and 25% against plaintiff.

      . See Acts 1971, 62nd Leg., p. 1073, ch. 225, § 1, eff. May 17, 1971.


author: RAY, Justice.

text:
    Rodney SULLIVAN, Appellant, v. TAB SALES COMPANY, Appellee.
    No. 8617.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 27, 1978.
    Toby R. Goodman, Remingtom & Goodman, Arlington, for appellant.
    Ted Gialoretto, TAB Sales Co., Des Plaines, for appellee.
   RAY, Justice.

This is an appeal from an order sustaining the special appearance of Tab Sales Company. Rodney Sullivan, appellant (plaintiff), brought suit against Rod Paul and appellee (defendant), Tab Sales Company (Tab Sales), alleging breach of contract, fraud, misrepresentations and violations of the Texas Deceptive Trade Practices Act. Tab Sales Company filed its special appearance pursuant to Tex.R.Civ.P. 120a, contesting the long-arm jurisdiction of Texas. The trial court sustained the special appearance and dismissed the cause of action against Tab Sales for want of jurisdiction. Rod Paul is not a party to this appeal. Rodney Sullivan has attempted to perfect his appeal and submits two points of error for our consideration.

The record indicates that Rod Paul is a resident defendant and that Tab Sales Company is a non-resident defendant. Appellant attempted to get in personam jurisdiction over Tab Sales under Tex.Rev.Civ.Stat. Ann. art. 2031b, one of the Texas long-arm statutes. Appellant alleged that Tab Sales Company and Rod Paul had made material misrepresentations of fact to him concerning a product known as “Rain-X” and that he had suffered damages as a result of the fraud perpetrated upon him by Rod Paul and appellee. Tab Sales entered its special appearance which was sustained by the trial court and Tab Sales was dismissed as not being amenable to the jurisdiction of the Texas courts. However, the court did not enter an order severing that portion of the suit asserted against Tab Sales Company.

We have examined the record in this case and have determined that the order sustaining the special appearance is interlocutory in nature and not appealable because it was not severed pursuant to Tex.R.Civ.P. 41.

In 4 McDonald’s, Texas Civil Practice, Sec. 17.04, p. 44, it is stated:

“A judgment which, without a formal order of severance, fails to dispose of all parties and issues is interlocutory and not appealable. This has been applied when the judgment dealt with separate and severable causes of action; a counterclaim; a third-party claim; some but not all issues of a claim or defense; or a claim as against some but not all defendants. Such an interlocutory order becomes final, and there is an appealable final judgment, when in a subsequent order the court disposes of the remaining parties or issues. Earlier decisions sustaining some appeals on the theory of an implied severance received the specific disapproval of the Supreme Court: ‘The confusion and uncertainty involved in the application of such a rule outweigh any advantages which might result therefrom.’ ”

See Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959); Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959); Thode, In Personam Jurisdiction; Article 2031B, The Texas “Long Arm” Jurisdiction Statute; And The Appearance To Challenge Jurisdiction In Texas And Elsewhere, 42 Texas L.Rev. 279, 331 (1964).

This Court has determined that the order sustaining the special appearance of Tab Sales Company is interlocutory in nature and not subject to appeal because the trial court has not disposed of all issues and all parties such that a final decree has been entered effectively disposing of the case. Appellant’s appeal is dismissed for want of jurisdiction.