author: HILL, Justice.

text:
    Mike DILLARD, Appellant, v. Randy BERRYMAN, Appellee.
    No. 2-84-116-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 17, 1984.

      Neal & McBeath, P.C., and Paul Scott, Vernon, for appellant.
    Fillmore & Associates and H. Dustin Fillmore, Fort Worth, for appellee.
    Before JORDAN, BURDOCK and HILL, JJ.
   OPINION

HILL, Justice.

Mike Dillard brings this interlocutory appeal from the denial of a temporary injunction which would effectively prevent H. Dustin Fillmore and the law firm of Fillmore & Associates, P.C. from acting as counsel for Randy Berryman, the appellee, in defending a civil assault case brought by Dillard. Dillard sought the injunction and the removal of Fillmore and the firm from acting as counsel for Berryman because Harold White, who is presently an associate with the law firm, was district attorney at the time when Dillard sought criminal prosecution for the assault, and Dillard had discussed the matter with White in his capacity as district attorney. The trial court denied the motion for removal of counsel and denied the injunction.

We reverse and remand because we find that the trial court abused its discretion in not granting the injunction, because the continued representation of Berryman by the firm of Fillmore & Associates under these circumstances would be inconsistent with the Canons of Ethics.

In his only point of error, Dillard complains of the failure of the trial court to enjoin H. Dustin Fillmore, Fillmore & Associates, P.C. and their agents, servants, and employees from directly or indirectly divulging any matters pertinent to the case in chief, oral or written in nature, to any party or parties that were not currently involved in the case at the time the hearing for injunction was held.

Appellate review of an order granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion in granting or denying the interlocutory order. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975).

At a hearing upon the request for a temporary injunction, the only question before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits. Davis, 571 S.W.2d at 862; Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217, 219 (1956). On appeal the reviewing court is limited in its consideration as to whether the trial court abused its discretion in making the foregoing determination. The appellate court may not substitute its judgment for that of the trial court. Davis, 571 S.W.2d at 862; Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460, 463 (1952). The merits of the underlying case are not presented for appellate review. Davis, 571 S.W.2d at 861.

We find that H. Dustin Fillmore and the law firm of Fillmore & Associates, P.C. are precluded from representing Berryman in the civil assault case because Harold White, who is now associated with the firm, received the criminal complaint of the assault as district attorney. See SUPREME COURT OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS art. XII, sec. 8 (Code of Professional Responsibility) Canon 9 (1971); State Bar of Texas, Comm, on Interpretation of the Code of Professional Responsibility, reprinted in 18 BAYLOR L.REV. 183, op. 100 at 236, op. 116 at 241, op. 143 at 255, op. 243 at 322 (1966). There is no question that Harold White would be precluded from representing Berryman in this case. The only issue is whether Fillmore and his firm are precluded from representing him because of White’s association with the firm. The opinions cited make clear that the prohibitions of Canon 9 which apply to an individual attorney also apply to the members of his law firm.

Berryman asserts that White has passed no significant information on to Fillmore or the other members of the firm so that there is no real conflict. The opinions which we have cited show that it is the relationship of the attorneys to the parties and to each other that controls, not whether they have actually engaged in conduct which would create a conflict. The purpose of Canon 9 is to avoid even the appearance of impropriety. None of the eases cited by the appellee would allow a firm to represent a defendant in a civil matter when an associate or member of the firm has represented the State in a criminal matter arising out of the same facts.

We find that the trial court abused its discretion in not enjoining H. Dustin Fillmore and the firm of Fillmore & Associates, P.C. from actions necessary to their continued representation of Berryman. We also find that the injunction as requested was too broad, in that in addition to preventing the passing of confidential information which might have been derived from the former district attorney, the injunction as requested would also prevent practical and necessary discussions with new counsel not related to the conflict problem.

The case is reversed and remanded to the trial court for the entry of an injunction consistent with this opinion.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    Bruce Standley GRIFFIN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-83-328-CR.
    Court of Appeals of Texas, Waco.
    June 7, 1984.
    Rehearing Denied June 28, 1984.

      Connie B. Williams, Terrance Windham, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Russell T. Lloyd, Robert Loper, Asst. Dist. Attys., Houston, for appellee.
   HALL, Justice.

Waiving trial by jury and pleading not guilty, appellant Bruce Standley Griffin was convicted by the court for the offense of unlawful possession of a firearm by a felon. V.T.C.A., Penal Code § 46.05. Enhanced by a prior felony conviction, punishment was assessed at penitentiary confinement for two years. Appellant’s two grounds of error complain of the admission in evidence of a revolver seized by a police officer from the car appellant was driving. We affirm the judgment.

At about 12:20 a.m. on May 8, 1988, Officer William C. Dumas of the Pasadena Police Department was on duty driving his patrol car in the 3900 block of Shaver when he noticed appellant drive past him in an adjacent lane of traffic. Appellant was not speeding, but was simply in a faster lane of traffic than was Dumas. The Officer noticed that appellant matched a composite drawing of an aggravated robbery suspect the police were looking for. Dumas testified that he had the drawing with him and actually picked up the composite drawing and compared it to appellant. He also noticed that appellant’s blue 1976 Chevrolet matched the description of the car the robbery suspect was driving except that appellant’s car was a four-door model while the car being sought was described as a two-door.

Convinced that appellant was the suspect, Officer Dumas followed him into the City of South Houston and back to Pasadena. The Officer then turned on his emergency lights and pulled appellant over. Exiting his car, appellant showed the officer his driver’s license at the rear of the Chevrolet. By this time at least one other patrol car had arrived and others would arrive shortly. Officer Dumas then shined his flashlight through the driver’s window which was rolled down and observed a revolver on the driver’s side of the floorboard. Appellant was then placed under arrest.

It is settled that circumstances short of probable cause for arrest may justify a temporary detention for the purpose of investigation. This is because investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394, 395 (Tex.Cr.App.1976). An occupant of an automobile is subject to such brief detention or stop. Hazel v. State, 534 S.W.2d 698, 703 (Tex.Cr.App.1976). The law enforcement officer, however, must have specific articulable facts which, in light of his experience and physical knowledge together with other inferences from the facts, would reasonably warrant the intrusion on the freedom of the citizen detained for investigation. There must be a reasonable suspicion by the law enforcement officer that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with unusual activity, and some indication that the activity is related to crime. Armstrong v. State, 550 S.W.2d 25, 30 (Tex.Cr. App.1977). In our case, we hold that the similarity between appellant and the composite drawing of the aggravated robbery suspect together with the substantially similar description of appellant’s car gave the police officer probable cause to stop and detain appellant for investigation and some questioning.

Since appellant was legally stopped, the remaining question is whether the revolver was properly seized and admitted in evidence. We hold that it was. Criminal objects falling within the plain view of a police officer who has a right to be in a position to have the view are subject to seizure and may be introduced in evidence. Lewis v. State, 439 S.W.2d 351, 352 (Tex.Cr.App.1969). The fact that a police officer uses a flashlight does not prevent an object from being considered in plain view. Legall v. State, 463 S.W.2d 731, 732 (Tex.Cr.App.1971). Furthermore, looking at objects inside automobiles from outside positions does not offend the Fourth Amendment. In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) the Supreme Court stated in its plurality opinion:

[T]he fact that [Officer] Maples changed his position and bent down at an angle so he could see what was inside Brown’s car is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown’s automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Maples to observe the interior of Brown’s car and of his open glove compartment was not a search within the meaning of the Fourth Amendment.

In our case the revolver was within the plain view of Officer Dumas, and was properly seized. No error resulted in admitting the weapon as evidence. Lewis v. State, supra.

The judgment is affirmed.


author: DRAUGHN, Justice.

text:
    Emma Clara ZEPHYR, Appellant, v. Carl Edward ZEPHYR, Appellee.
    No. A14-83-235CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 19, 1984.

      Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
   OPINION ON MOTION FOR REHEARING

DRAUGHN, Justice.

Appellee, in his first point of error on motion for rehearing points out that the part of the record which relates to the trial of a plea in intervention concerning the ownership of a car was not brought up on appeal. Appellee argues that because the record is incomplete that appellant was required to limit her appeal under Rule 353 of the Texas Rules of Civil Procedure and that her appeal should be dismissed for failure to comply with Rule 353. As we stated in our first opinion, the failure to limit an appeal under Rule 353 is not a ground for dismissal under Rule 387 of the Texas Rules of Civil Procedure. 679 S.W.2d 553. The consequence of noncompliance with Rule 353 is that the appeal will not be limited; in other words, any party may appeal from any part of the judgment. McDaniel v. Carruth, 637 S.W.2d 498, 507 (Tex.App. — Corpus Christi 1982, no writ).

In his second point of error on motion for rehearing appellee contends that this court erred in failing to dismiss this appeal for want of jurisdiction. Appel-lee’s position is that appellant failed to timely perfect her appeal because she filed her appeal bond more than thirty days after the trial court signed the judgment on January 25, 1983. Appellee asserts that appellant’s filing of a motion for new trial did not extend the time for the filing of the appeal bond to ninety days after the judgment was signed under Rule 356 of the Rules of Civil Procedure, because appellant failed to give notice of the filing and of the date set for hearing to all parties, as required by Rules 21 and 21a, and the filing of the motion for new trial is therefore without legal effect. Appellant does not contend that he did not receive notice of the motion for new trial but relies on the failure of appellant to give notice to the intervenor. However, appellant’s failure to provide intervenor with notice does not prevent the filing of the motion for new trial from extending the filing deadline for the appeal bond. Rule 356 only requires that the motion for new trial be filed in order for the bond filing deadline to be extended; it does not additionally require that notice of the filing be given to all parties. The failure to provide notice of the filing of the motion for new trial and hearing on the motion simply gives the party without notice the right to challenge any order which affects its interest issued by the trial court on such motion. Appellant timely perfected her appeal by filing bond within ninety days of the date the trial court signed the judgment.

Appellee additionally contends for the first time, in his motion for rehearing, that he did not receive notice of the filing of the appeal bond and that this appeal should be dismissed for failure of appellant to provide notice as required by Rule 354(b). We deny appellee’s request to have this appeal dismissed on this ground, because appellee has not demonstrated that detriment resulted to him from the failure to receive notice. Harrison v. Harrison, 543 S.W.2d 176 (Tex.Civ.App. — Houston [14th Dist.] 1976, no writ).

Appellee’s second point of error is overruled.

Appellee’s third and fourth points of error are overruled and will not be discussed as they have been adequately addressed in this Court’s opinion issued on June 7, 1984.

Appellee’s motion for rehearing is overruled.


author: THOMAS, Justice.

text:
    Martin Cervantes CASAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 10-83-181-CR.
    Court of Appeals of Texas, Waco.
    Aug. 9, 1984.
    Richard E. Langlois, Kosub, Langlois & Van Cleave, San Antonio, for appellant.
    Sam D. Millsap, Jr., Crim. Dist. Atty., Hipólito Canales, Jr., Edward P. Shaugh-nessy, III, Asst. Crim. Dist. Attys., San Antonio, for appellee.
   OPINION

THOMAS, Justice.

Appellant was convicted of murder, and his punishment was assessed at sixty years in prison. The sole question on appeal is whether the court erred when it refused to grant him a legislative continuance under art. 2168a, Tex.Rev.Civ.Stat.Ann. (Supp. 1984). We affirm.

A special session of the 67th Texas Legislature convened on May 24,1982, and was adjourned on May 28th, three days before Appellant’s trial began on June 1st. On the morning of the trial, Appellant’s counsel, who was a member of the Texas House of Representatives, filed a motion requesting a continuance under art. 2168a. A continuance was denied. Appellant contends the court erred when it refused to continue his trial until thirty days after May 28th.

Art. 2168a is mandatory by its terms and by interpretation. The court must continue a cause until thirty days after the legislature adjourns if the affidavit supporting the motion for continuance states: (1) the attorney for any party to the cause is a member of the legislature; and (2) such member will be or is in actual attendance on a session of the legislature. The affidavit must set forth these aver-ments. Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975).

Appellant concedes the affidavit did not comply with the statute, because his attorney could not truthfully state that he will be or is in actual attendance on a session of the legislature. Unless the affidavit complies with art. 2168a, the court has discretion to deny a continuance. Appellant has not shown an abuse of discretion.

Appellant also contends the court erred when it refused to grant a legislative continuance based on a motion and affidavit that was presented to the court at a pretrial hearing on May 17th. Although the court and counsel discussed a legislative continuance at the pretrial hearing, the motion and affidavit purportedly filed on May 17th do not appear in the appellate record. With the May 17th affidavit absent from the record, we cannot review Appellant’s complaint that the court erred when it continued his trial to June 1st, a date less than thirty days after the special session adjourned.

We overrule Appellant’s ground of error and affirm the judgment.


text:
    Oscar Calderon GARAY, Appellant, v. The STATE of Texas, Appellee.
    No. 10-83-214-CR.
    Court of Appeals of Texas, Waco.
    Aug. 16, 1984.
    Discretionary Review Refused April 24, 1985.
    James E. Shugart, San Antonio, for appellant.
    Sam D. Millsap, Jr., Criminal Dist. Atty., San Antonio, for appellee.
   OPINION

THOMAS, Justice.

This appeal of Appellant’s four-year prison sentence for attempted burglary of a building involves art. 32.01, Tex.Code Crim. Proc.Ann.

The facts governing this appeal are undisputed. Appellant was arrested for attempted burglary on August 31, 1982, and remained in jail under a $10,000.00 bond during the proceedings below. Because no indictment was returned against him during the subsequent term of court, which began on September 6th and concluded on October 31st, Appellant filed an application for writ of habeas corpus and motion to dismiss on November 10th, seeking a dismissal of the prosecution and a discharge from custody and bail under art. 32.01. On November 17th, the grand jury indicted Appellant for attempted burglary of a building, and he was served on the same day with a copy of the indictment and a capias committing him to custody. Although filed on November 10th, Appellant’s application for writ of habeas corpus and motion to dismiss were not heard until November 18th, at which time they were denied. Appellant later pled guilty to the indictment and was sentenced to four years in prison; however, the court allowed him to appeal the denial of his application for writ of habeas corpus and motion to dismiss.

Appellant’s sole ground of error contends the court erred when it refused to dismiss the prosecution and discharge him from custody and bail under art. 32.01. This ground is overruled. We have reviewed Appellant’s pro se brief, which is virtually identical in substance to that of his attorney. The ground in the pro se brief is also overruled. When the court heard the application for writ of habeas corpus and motion to dismiss on November 18th, Appellant had already been indicted and was in jail under a capias issued with the indictment. Once an indictment is returned, art. 32.01 is not applicable and cannot be used to quash the indictment. Tatum v. State, 505 S.W.2d 548 (Tex.Cr.App. 1974); Ex parte Johnson, 142 Tex.Cr.R. 483, 154 S.W.2d 854 (1941). Appellant points, however, to dicta in Tatum v. State, supra, and Payne v. State, 109 Tex.Cr.R. 287, 4 S.W.2d 53 (1928), which indicate art. 32.01 would control where a defendant “seeks” discharge prior to indictment. Because he filed his application and motion on November 10th, Appellant argues art. 32.-01 required the court to dismiss the indictment and discharge him from custody and bail. He asserts that, unless art. 32.01 is made applicable to the facts of this case, a court could conspire with the State to delay a hearing until an indictment is returned and, thus, defeat the purpose of the statute.

If the dicta in Tatum and Payne were literally applied in this case, the court would have been required to perform a vain act. The court would have discharged Appellant from custody and bail under his original arrest warrant and then, contemporaneously, ordered Appellant re-committed to custody and bail under the capias issued on the indictment. Appellant cannot demonstrate harm from the court’s denial of his requested relief. If Appellant had not been indicted until November 19th, the day following the hearing, art. 32.01 would have secured his release from custody and bail. We hold that, once the indictment had been returned, art. 32.01 could not be used to quash the indictment. Tatum v. State, supra. Appellant was not entitled to be discharged from custody and bail under art. 32.01, even though he had “sought” dismissal and discharge prior to indictment.

Affirmed.

      . Art. 32.01 reads: When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.


author: SPARLING, Justice.

text:
    Haron STEPHENS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00160-CR.
    Court of Appeals of Texas, Dallas.
    Aug. 30, 1984.
    Rehearing Denied Oct. 12, 1984.
    Michael Byck, Lawrence B. Mitchell, Dallas, for appellant.
    Ruth Plagenhoef, Asst. Dist. Atty., Dallas, for appellee.
    Before AKIN, SPARLING and SHUM-PERT, JJ.
   SPARLING, Justice.

Appellant was convicted of aggravated rape and sentenced to twelve years imprisonment. Appellant contends, inter alia, that the evidence was insufficient. We agree and reverse.

. The indictment charged appellant with the offense of rape and alleged, as an aggravating element, that he “threaten[ed] serious bodily injury and death to be imminently inflicted on the Complainant.” The complainant was kidnapped by two men, one holding a gun and vowing to shoot her if she “did anything funny.” The two men took her to an apartment where she heard two more male voices. Appellant was present at the apartment. The complainant was told to take off her clothes or “get hurt,” but there was no evidence appellant was present when the threat was made. The complainant was forced into a bedroom and raped by four or five men. Appellant argues that under the law of parties, the evidence of threats of serious bodily injury or death was insufficient to convict appellant of aggravated rape. We agree.

A person is criminally responsible for an offense committed by another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” TEX.PENAL CODE ANN. § 7.02(a)(2) (Vernon 1974); Porter v. State, 634 S.W.2d 846, 850 (Tex.Crim.App.1982); Morrison v. State, 608 S.W.2d 233, 234 (Tex.Crim.App. 1980); Ramo v. State, 568 S.W.2d 298, 303 (Tex.Crim.App.1978) (On State’s Motion for Rehearing). To determine whether appellant may be guilty as a party, we may look to events before, during, and after the commission of the offense and may rely on actions which show an understanding and common design to do a certain act. Alexander v. State, 607 S.W.2d 551, 553 (Tex. Crim.App.1980); Tarpley v. State, 565 S.W.2d 525 (Tex.Crim.App.1978).

“Threat” within the meaning of the aggravated rape statute includes any act amounting to an offer to use future force, and threats may be communicated by acts, words, or deeds. Zapalac v. State, 638 S.W.2d 546 (Tex.App. — Houston [1st Dist.] 1982, pet. ref d). The threat must be communicated to the victim. Taylor v. State, 637 S.W.2d 929 (Tex.Crim.App.1982). To convict appellant of aggravated rape, the evidence must prove that appellant aided and abetted each element of the offense. United States v. Pozos, 697 F.2d 1238,1242 (5th Cir.1983); United States v. Fischel, 686 F.2d 1082,1087 (5th Cir.1982); Rodriquez v. State, 646 S.W.2d 671 (Tex.App.— Dallas 1983, no pet.).

Even though the complainant succumbed to appellant while under the influence of the threat to kill her, the issue here is not cause and effect but, rather, responsibility. We do not hold appellant responsible for an act committed by means of a threat of which there is no evidence that he had any knowledge. Without knowledge of the threat, appellant did not promote or assist the commission of the offense of aggravated rape. We distinguish Rodriquez v. State, 646 S.W.2d 671 (Tex.App.— Dallas 1983, no pet.), on the ground that additional statements concerning possession of a gun were made in the presence of the complainant and appellant. Thus, “the jury could reasonably have found that the threat of using a gun to harm complainant persisted until she was released and that the rapes ... were aggravated by this intent throughout the episode.” 646 S.W.2d at 672. We hold that the evidence here was insufficient to sustain the conviction of aggravated rape.

The judgment is reversed, and a judgment of acquittal is entered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

      . The federal law of responsibility for the conduct of another is substantially the same as the Texas law. The federal law states: Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principle. 18 U.S.C.A. § 2 (1969).


author: CORNELIUS, Chief Justice.

text:
    TEXAS OIL & GAS CORP., Appellant, v. Jeff HAGEN, et al., Appellees.
    No. 9176.
    Court of Appeals of Texas, Texarkana.
    Sept. 25, 1984.
    Rehearing Denied Nov. 13, 1984.

      W.S. Barron, Jr., Brice & Barron, Dallas, for appellant.

      David A. Lake, Tyler, Jesse L. Nicker-son, Pittsburg, for appellees.
   CORNELIUS, Chief Justice.

Jeff Hagen and others (plaintiffs) are royalty owners in three .gas units operated by the defendant Texas Oil & Gas (TXO). They brought this suit as a class action representing themselves and all other similarly situated royalty owners, alleging that TXO had failed to pay the proper royalties on gas production from the units. Their action was based generally on breach of contract, failure to market the gas with good faith and reasonable diligence, and fraud by misrepresentation and concealment. After a nonjury trial the district court rendered judgment for plaintiffs in the amount of $1,075,030.02 actual damages, $300,000.00 exemplary damages and $250,000.00 attorney’s fees. Actual damages represented the deficiency in gas royalties paid plus unpaid royalties on sulphur. TXO assigns twenty-two points of error alleging no evidence and insufficient evidence to support the vital findings, as well as certain procedural errors. We affirm the judgment as to liability but reverse the award of actual damages and remand the cause to the district court for the limited purpose of finding and reassessing actual damages in accordance with the directions of this opinion.

When the wells were placed on production TXO executed a gas purchase contract with Delhi Pipeline Company, its wholly owned subsidiary, which provided that the gas would be sold to Delhi at a stipulated price and delivered to it at or near the outlet of TXO’s separators on the leased premises. From that point Delhi transported the gas to a central point in the Pitts-burg field. There it was dehydrated and then transported seven and a half miles to the Getty New Hope plant where the hydrogen sulfide and carbon dioxide were removed. It was then transported approximately fifty miles to the Southwestern Electric Power Company Wilkes power plant in Marion County where about one-half of it was sold to SWEPCO. The remaining gas was transported an additional fifty miles and sold to International Paper Company at its Domino plant in Cass County. The prices paid to Delhi by SWEPCO and IPC were 15$ per MCF higher than the price provided by the contract between TXO and Delhi. TXO contends that its contract with Delhi constituted a sale of the gas at the wells, and it has accounted to the plaintiffs for their royalty on the basis of the price provided in that contract. Plaintiffs, among other things, contend that the actual sales took place at the SWEPCO and IPC plants, and consequently they should have been paid royalties on the basis of the market value at the well of the gas pursuant to the lease royalty provisions , and also that they should have been paid royalties on the sulphur removed from the gas prior to its delivery to SWEPCO and IPC. Plaintiffs signed division orders which provided that the terms of the leases would “govern as to the price to be paid for said production ...,” and that “the purchase and sale of gas ... shall be covered, subject to and controlled by ...” the gas sales contract between TXO and Delhi. Copies of the contract were not attached to or furnished with the division orders, however.

The ultimate facts and conclusions found by the district court were that the gas was sold off premises at the SWEPCO and IPC plants rather than at the wells to Delhi; TXO made fraudulent misrepresentations in its division orders and concealed material facts concerning its sale of the gas and its relationship with Delhi; and that TXO breached its position of confidence toward plaintiffs and failed to act in good faith and fairness in its obligation to market the gas for the highest price reasonably obtainable.

We find the evidence insufficient to support the conclusion that TXO made a positive misrepresentation of fact in its division orders. The statement in the division orders relied upon to constitute a misrepresentation was simply that the price of the gas for royalty purposes would be governed by the terms of the leases. That statement was and is true. The fact that TXO thought it could establish an “at the well” sale by contracting with its subsidiary to take the gas at that point does not convert the division order statement into a misrepresentation. A representation as to the legal effect of an instrument is ordinarily not actionable. Furman v. Keith, 226 S.W.2d 218 (Tex.Civ.App. — San Antonio 1949, writ ref’d); McGary v. Campbell, 245 S.W. 106 (Tex.Civ.App. — Beaumont 1922, writ dism’d); Franklin Ins. Co. v. Ville-neuve, 60 S.W. 1014 (Tex.Civ.App.1901, no writ); 25 Tex.Jur.2d Fraud and Deceit § 37 (1961). To amount to an actionable misrepresentation, a statement must be clearly untrue. If, under a reasonable construction it is consistent with the truth, it cannot be actionable as a false statement. Estapa v. Saldana, 218 S.W.2d 222 (Tex. Civ.App. — San Antonio 1948, writ ref d n.r. e.).

The judgment can be sustained, however, on the basis of breach of contract. There is sufficient evidence to support the district court’s finding that the purported sale of the gas to Delhi was a sham, and that TXO used that arrangement and its relationship with its wholly owned subsidiary to create an unfair device to deprive plaintiffs of their rightful royalties. By proof that Delhi, in this situation, was merely the alter ego of its parent TXO, the district court could disregard the purported sale at the wells and find that the true sale was off premises at the SWEPCO and IPC plants. See Tyson v. Surf Oil Co., 195 La. 248, 196 So. 336 (1940); Kuntz, Oil and Gas § 40.4(e) (1967).

The mere fact that a subsidiary is wholly owned by the parent and there is an identity of management does not justify disregarding the corporate entity of the subsidiary, but where management and operations are assimilated to the extent that the subsidiary is simply a name or a conduit through which the parent conducts its business, the corporate fiction may be disregarded in order to prevent fraud and injustice. Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571 (Tex.1975); Bell Oil & Gas Co. v. Allied Chem. Corp., 431 S.W.2d 336 (Tex.1968). There is ample evidence here to support such a conclusion with reference to TXO and Delhi. Both companies have the same officers, directors, and office and field personnel. TXO directly paid all of the payroll and directly controlled all of Delhi’s business functions, including expenses, income, and capital expenditures. The only separation was by interoffice chargeback accounting. Both companies filed consolidated income tax returns, a single SEC registration and financial statement, and property in the name of Delhi was included in a TXO mortgage to a New York bank. All benefits earned by Delhi are direct benefits and amounts realized by TXO including income from the sale of sulphur from the gas in question. TXO owned all of Delhi’s stock and acted as its representative for the gas sales agreements with SWEPCO and IPC.

The leases involved here provide that where the sale is off premises the royalty shall be one-eighth of the market value at the well. Market value at the well is the market value of the gas where sold, less the reasonable cost of transporting the gas to the market and the processing necessary to make it marketable. Le Cuno Oil Co. v. Smith, 306 S.W.2d 190 (Tex.Civ. App. — Texarkana 1957, writ ref’d n.r.e.), cert, denied, 356 U.S. 974, 78 S.Ct. 1137, 2 L.Ed.2d 1147 (1958); Reed v. Hackworth, 287 S.W.2d 912 (Ky.1956); Wall v. United Gas Pub. Sent. Co., 178 La. 908, 152 So. 561 (1934); Clear Creek Oil & Gas Co. v. Bushmiaer, 264 S.W. 830 (Ark.1924); Phillips Petroleum Co. v. Bynum, 155 F.2d 196 (5th Cir.), cert, denied, 329 U.S. 714, 67 S.Ct. 44, 91 L.Ed.2d 620 (1946); Sartor v. United Gas Pub. Serv. Co., 84 F.2d 436 (5th Cir.1936). Thus, plaintiffs were entitled to recover as actual damages the difference between what they had been paid and the market value of the gas where sold, less the reasonable cost of transportation and processing. Le Cuno Oil Co. v. Smith, supra; Reed v. Hackworth, supra; Clear Creek Oil & Gas Co. v. Bushmiaer, supra; Kuntz, Oil and Gas § 40.5 (1967). And as the real sale was at the SWEPCO and IPC plants, plaintiffs were also entitled to their royalties on the sulphur which was extracted and sold by Delhi prior to the deliveries to SWEPCO and IPC.

It was plaintiffs’ burden to prove market value at the well. They attempted to discharge that burden by introducing testimony and exhibits showing prices paid for gas in the general area of the units involved here. TXO argues that the evidence was insufficient because the gas from its units had a lower BTU value than the other gas, and because the comparable sales were too remote in distance to allow a fair comparison. We disagree on this point. Plaintiffs’ witness took account of the lower BTU content of TXO’s gas and advised the court how his data could be converted to render the sales comparable. The other variations concerning quality, quantity, time and location were pointed out to and were undoubtedly considered by the court. These differences would go to the weight rather than to the admissibility of the evidence, and we find the data sufficient to allow the trial court to find the market value of the gas.

Market value of the gas for the purposes of paying royalties, however, cannot exceed the maximum price permitted by the Natural Gas Policy Act. 15 U.S. C.A. § 3301 (1982); Flowers v. Diamond Shamrock Corp., 693 F.2d 1146 (5th Cir. 1982); Bowers v. Phillips Petroleum Co., 692 F.2d 1015 (5th Cir.1982). The NGPA became effective November 8, 1978, and we are unable to determine if the market value found by the district court for the volumes of gas sold after that time exceeded the maximum price allowable by the NGPA. Because of this and the further fact that transportation costs were not deducted from the market values in calculating the actual damages, we must remand the cause to the district court to find and apply these figures. In this regard, we hold that the “contract” as used in the NGPA for determining the “contract price” means the letter agreements concerning the sale between Delhi and SWEPCO and IPC, and not the TXO-Delhi contract.

TXO attacks the award of exemplary damages, but we find the evidence sufficient to support it. An oil and gas lessee owes its lessors a higher than ordinary duty to market the production from the leases in a manner which will obtain the best and highest price reasonably obtainable. The standard required in such cases has been stated to be that of the highest good faith or the best of good faith. See Amoco Prod. Co. v. First Baptist Church of Pyote, 579 S.W.2d 280 (Tex.Civ.App.—El Paso 1979), aff'd, 611 S.W.2d 610 (Tex.1980); Le Cuno Oil Co. v. Smith, supra. This duty of highest good faith places the lessee in a position of trust and confidence toward its lessors. Le Cuno Oil Co. v. Smith, supra; Greenshields v. Warren Petroleum Corp., 248 F.2d 61 (10th Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Kuntz, Oil and Gas § 40.5. The evidence supports the conclusion that TXO violated this relationship by failing to disclose to its lessors the facts concerning the sale and its relationship with Delhi, and in arranging a sham sale in order to deprive plaintiffs of their rightful royalties. See Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380 (Tex.Civ.App.—Corpus Christi 1976), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Export Ins. Co. v. Herrera, 426 S.W.2d 895 (Tex.Civ.App.— Corpus Christi 1968, writ ref’d n.r.e.); Etter v. Von Sternberg, 244 S.W.2d 321 (Tex. Civ.App.—Galveston 1951, writ ref’d n.r.e.). Exemplary damages may be awarded in a breach of contract case where the breach is accompanied by fraud, deceit, or oppressive conduct, and especially where as a result of the artifice or concealment the plaintiffs are required to go to great lengths and expend substantial funds to discover and remedy the fraud. Gulf, C. & S.F. Ry. Co. v. Levy, 59 Tex. 542 (1883); Crutcher-Rolfs-Cummings, Inc. v. Ballard, supra; Gladen Buick, Inc. v. Sterling, 524 S.W.2d 590 (Tex.Civ.App.—Waco 1975, writ ref’d n.r.e.); Etter v. Von Sternberg, supra; Export Ins. Co. v. Herrera, supra; Pan American Petroleum Corp. v. Hardy, 370 S.W.2d 904 (Tex.Civ.App.—Waco 1963, writ ref’d n.r.e.). Misrepresentation is not the only kind of fraud. The breach of a confidential relationship, concealment of material facts, and any device used to cheat or deceive another may in a proper case amount to fraud, and the term is synonymous with bad faith and overreaching. Ki-nard v. Sims, 53 S.W.2d 803 (Tex.Civ.App. —Amarillo 1932, writ ref’d).

TXO argues that attorney’s fees should not have been awarded. We agree that attorney’s fees were not recoverable pursuant to Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1984) because there was no proof that the claim was presented as required by that statute. We find, however, that the court properly awarded attorney’s fees as a part of the exemplary damages. Bank of North America v. Bell, 493 S.W.2d 633 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); Carter v. Barclay, 476 S.W.2d 909 (Tex.Civ.App.—Amarillo 1972, no writ); Export Ins. Co. v. Herrera, supra; Pan American Petroleum Corp. v. Hardy, supra. We further find that the exemplary damages so awarded are not excessive.

We overrule TXO’s contention that plaintiffs are prohibited from recovering additional royalties because they executed division orders which referred to the TXO-Delhi gas sales contract. The division orders did not contradict or amend the terms of the leases. Indeed, they expressly provided that the price for the gas would be governed by the terms of the leases, and the leases provide that for an off premises sale the price will be the market value at the well. The statement in the division orders that the TXO-Delhi contract will govern the sale of the gas did not put the royalty owners on notice that they would not be paid their rightful royalties, and in the absence of a known dispute concerning the correctness of the payments being made under the division orders, the owners’ acceptance of the payments would not constitute an accord and satisfaction. See Phillips Petroleum Co. v. Williams, 158 F.2d 723 (5th Cir.1946); Union Prod. Co. v. Pardue, 117 F.2d 225 (5th Cir.1941); Whepley Oil Co. v. Associated Oil Co., 6 Cal. App.2d 94, 44 P.2d 670 (1935); Kuntz, Oil and Gas §§ 40.4, 42.8(b) (1967).

We also reject TXO’s contention that plaintiff should have been required to elect between their claims of breach of contract and fraud. The plaintiffs could proceed with a claim of breach of contract accompanied by fraud. K.W.S. Mfg. Co. v. McMahon, 565 S.W.2d 368 (Tex.Civ.App.—Waco 1978), writ ref’d n.r.e.). Those remedies are not inconsistent as they are when one seeks to enforce a contract and also to rescind it for fraud.

In view of our disposition of this case, it is not necessary for us to pass on TXO’s point of error complaining of the trial court’s failure to file additional findings of fact and conclusions of law. TXO’s other points have been carefully considered and are overruled.

For the reasons stated the judgment is reversed in part, and the cause is remanded to the district court for the limited purpose of finding and calculating the deficiency in gas royalty payments for the periods sued for, and entering judgment therefor on the following basis: the reasonable market value of the gas where sold, not to exceed the maximum price allowable therefor since November 8, 1978, under the Natural Gas Policy Act, and less the reasonable cost of processing said gas and transporting it to the IPC and SWEPCO plants. In all other respects the judgment is affirmed.

      . The royalties to be paid by Lessee are: (a) on oil, ... (b) on gas, including casing-head gas or other gaseous substance, produced from said land and sold or used off the premises or for the extraction of gasoline or other product therefrom, the market value at the well of one-eighth of the gas so sold or used, provided that on gas sold at the wells the royalty shall be one-eighth of the amount realized from such sale; ... and (c) on all other minerals mined and marketed, one-tenth either in kind or value at the well or mine, at Lessee’s election, except that on sul-phur mined and marketed the royalty shall be fifty cents (50⅜) per long ton....


author: BLEIL, Justice.

text:
    Javier FLORES, Appellant, v. COFFIELD WAREHOUSE COMPANY, Appellee.
    No. 9251.
    Court of Appeals of Texas, Texarkana.
    Oct. 23, 1984.
    Rehearing Denied Nov. 20, 1984.
    J.L. Hinojosa, Brown & Haden, Houston, for appellant.

      Arno W. Krebs, Jr., Fulbright & Jawor-ski, W.T. Womble, John C. Millberg, Crain, Catón, James & Womble, Houston, for ap-pellee.
   BLEIL, Justice.

Javier Flores appeals from a summary judgment granted in favor of Coffield Warehouse Company. Each side concedes that there is no disputed material fact issue. The issue before us is whether the facts establish that Coffield is not a “common carrier by railroad,” as used in the Federal Employers’ Liability Act, 45 U.S. C.A. §§ 51-60 (1972). We conclude that Coffield was not a common carrier by railroad and therefore uphold the summary judgment in favor of Coffield.

While working for Coffield Warehouse Company, Flores was directed to repair a grain hopper conveyer belt located on the company’s premises. In order to get to the conveyer belt, Flores crossed over a set of railroad tracks in between two stationary railcars parked on the tracks. He climbed onto and over the coupling between the cars when a locomotive switch engine was backed into the railcars. The sudden impact threw Flores down onto the track and beneath one of the car’s wheels. As the railcar was pushed along the track the wheels rolled over Flores amputating his legs. The railroad track and locomotive switch engine were owned, operated, and maintained by Coffield.

Flores sued Coffield and Southern Pacific Transportation Company. Southern Pacific filed a motion for summary judgment alleging that Flores was not its borrowed servant and that it in no manner was responsible for the injuries suffered by Flores; Southern Pacific prevailed on its motion. Flores did not appeal the summary judgment granted to Southern Pacific. Coffield also moved for summary judgment alleging that Flores had waived his claim for action under common law or any other statute because he was covered by the Texas Workers’ Compensation Act, Tex.Rev. Civ.Stat.Ann. art. 8306 (Vernon 1967). It claimed that Flores’ recovery was limited to workers’ compensation benefits. Cof-field further alleged that it was not a common carrier by railroad and therefore not liable to Flores under the Federal Employers’ Liability Act or any other act.

Generally when we review summary judgments we apply the following rules: (1) the movants must show that there is no issue of material fact and that they are entitled to judgment as a matter of law; (2) we take as true all evidence favorable to the nonmovant; and (3) we indulge every reasonable inference in favor of the non-movant or the one against whom summary judgment is granted. Wilcox v. St. Mary's Univ. of San Antonio, 531 S.W.2d 589 (Tex.1975); Tex.R.Civ.P. 166-A. However, because each side agrees that there is no issue of material fact we find this appeal can be resolved by determining a single question of law: whether the undisputed facts establish that Coffield was not a common carrier.

A common carrier by railroad under FELA has been held to mean one who operates a railroad as a means of carrying for the public. Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S.Ct. 93, 65 L.Ed. 205 (1920). In reviewing the pertinent provisions of the Federal Employers’ Liability Act, the United States Court of Appeals for the Fifth Circuit has set forth four significant considerations in determining whether an entity is a common carrier. These factors are whether the entity: (1) actually performs rail service; (2) performs a service which is part of the total rail service contracted for by a member of the public;

(3)performs as a part of the system of interstate rail transportation by virtue of common ownership between itself and a railroad or by a contractual relationship with a railroad, and hence is deemed to be holding itself out to the public as a railroad; and (4) receives remuneration for the services performed in some manner such as a fixed charge from a railroad or by percentage of the profits from a railroad. Mahfood v. Continental Grain Co., 718 F.2d 779 (5th Cir.1983); Lone Star Steel Co. v. McGee, 380 F.2d 640 (5th Cir.1967). Therefore, the critical issue before us can be determined by application of these four tests.

Coffield is in the business of grain storage and merchandise warehousing. The Houston warehousing facility is served by Southern Pacific Transportation Company, which has a railroad spur track to the facility. One wanting to store grain or goods at Coffield makes arrangements with it for storage and separate arrangements with a transportation company for shipment to the storage warehouse. Southern Pacific delivers the railcar to a site within the Coffield premises. Coffield employees are used only to move the rail-cars short distances incident to the unloading and storage process within the boundaries of Coffield premises. Coffield operates its rail facilities only in connection with its warehouse and storage business. It does not transport goods for public purposes. Coffield’s remuneration is based upon its charges to customers for unloading, storage and loading. Coffield in no manner holds itself out to the public as performing as a part of an interstate rail transportation system. The internal transportation of goods or grains by Coffield at its facility is not performed as a part of total rail services.

After considering the undisputed facts we conclude that Coffield is not a common carrier by railroad. Damages for the death or injury of an employee of a railroad engaged in interstate commerce, allegedly caused by the negligence of the railroad, are recoverable exclusively from the railroad under the FELA and not under state law. Janette v. Seaboard Coast Line R.R. Co., 524 F.2d 1259 (5th Cir.1975). The FELA in pertinent part provides that every common carrier by railroad while engaging in commerce shall be liable in damages to any person suffering injury while he is employed by that carrier in commerce. Because Coffield is not a common carrier by railroad under the-FELA it is not answerable to its employee, Javier Flores, under this Act.

We affirm the trial court’s judgment.


author: PER CURIAM.

text:
    Ex parte Jerry Lynn FRANKLIN.
    No. 12-84-0188-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 25, 1984.

      Lewis P. Terrell, Lubbock, for appellant.
    Wayne Toliver, Gilmer, Richard Miller, Longview, for appellee.
   PER CURIAM.

Franklin filed an Application for Writ of Habeas Corpus in this Court on September 18, 1984, alleging he was illegally confined in the Upshur County Jail by order of the 115th Judicial District Court. We granted the Writ and ordered Franklin released on a $1,000 bond pending the writ hearing set for October 2, 1984. The cause was submitted on that date.

The record before us reveals that on March 4, 1977, Franklin and his then wife, Rebecca Lynn Franklin, were divorced by decree of the 99th Judicial District Court of Lubbock County. Under the provisions of the decree, Rebecca was appointed managing conservator, and Franklin was appointed possessory conservator and ordered to pay $30.00 per week for the support and maintenance of Chad Lee Franklin, the sole child of the marriage, beginning Monday, “February 28, 1977 [sic]” with a like payment due each Monday thereafter. On April 13,1982, the suit was transferred from Lubbock to the District Court of Upshur County, presumably under the provisions of TEX.FAM.CODE ANN. Section 11.06 (Vernon Pham.Supp. 1975-83). On June 25, 1982, the Upshur County District Court conducted a contempt hearing, at which Franklin appeared with counsel. The court adjudged Franklin guilty of contempt “[in] failing to make periodic payments of child support as ordered,” and the order further recites, “[p]unishment for contempt is hereby taken under advisement by the court to be assessed at a later date to be determined by the court.” Such order, on agreement of the parties, also modified the divorce decree respecting Franklin’s rights of access to the child and found that Franklin was in arrearage in payment of child support under the divorce decree in the amount of $4,531, and further recited the agreement of the parties for the method and time schedule for the payment of such arrearage. The Upshur County District Court in a series of orders set a hearing for June 4, 1984', “to assess punishment.” At such hearing Franklin appeared before the court voluntarily with counsel. The record of that hearing establishes that the 1982 order was based solely on the agreement of the parties. No evidence was heard by the court. In effect, the trial court, upon Franklin’s assent thereto, found Franklin in contempt because of his conduct in failing to make the “periodic” payments of child support as required by the decree, but declined to assess punishment upon Franklin’s agreement to pay the arrearage as set forth in the order. At the conclusion of the 1984 hearing, the court again took the matter of punishment “under advisement.” On August 7, 1984, the trial court signed an order styled, “Order Assessing Punishment.” This order recites findings that Franklin paid $1,131 of the $4,531 arrear-age found to exist by the 1982 order, leaving an arrearage of $3,400 denominated in the order as “amended arrearage.” After making such findings, the trial court proceeded to assess punishment against Franklin “for contempt of this court at twenty-four hours confinement in the County Jail of Upshur County ... and as long thereafter until the sum of $1,000 of the amended arrearage, together with all court costs which have accrued to date, together with $250 attorneys’ fees ... have been paid.” The order also requires the “remaining amended arrearage of the $3,400 to be paid.” The record before us conclusively establishes that while the 1982 order adjudged Franklin guilty of contempt for his failure to make “periodic” payments of child support as ordered in the divorce decree, which were due and payable before June 25, 1982, the 1984 order committing him to custody, punished him for failure to pay the arrearage found to exist by the 1982 order, in the manner and on the dates spelled out in the agreement of the parties as set forth in the 1982 order. The 1982 order contained no clear and definite order of the court requiring Franklin to make the payments, but merely recited the agreement of Franklin to make such payments. Since there is no order directing Franklin to pay the arrearage, the commitment order is void. Ex parte Lake, 37 Tex.Crim. 656, 40 S.W. 727 (1897); Ex parte Arnold, 503 S.W.2d 529 (Tex.Crim.App.1974). Additionally, since it is also clear that under the 1982 order the court’s decision to assess punishment necessarily depended upon the character of Franklin’s conduct subsequent thereto, Franklin cannot be confined for the contempt adjudged thereby now or at any future time. Ex parte Sauser, 554 S.W.2d 239 (Tex.Civ.App.—Dallas 1977, no writ); Ex parte Crocker, 609 S.W.2d 833 (Tex.Civ.App.—Tyler 1980, no writ); see Ex parte Herring, 438 S.W.2d 801, 803 (Tex. 1969).

Franklin is ordered discharged from custody, and he and his sureties on his appearance bond before us are likewise discharged from further liability thereon.


author: CORNELIUS, Chief Justice. BLEIL, Justice,

text:
    WINCHESTER OIL COMPANY, et al., Appellants, v. Dale GLASS, et al., Appellees.
    No. 9284.
    Court of Appeals of Texas, Texarkana.
    Nov. 13, 1984.

      Rex A. Nichols, Nichols, Merriman, Patterson & Allison, Longview, for appellants.
    Austin Guest, Clarksville, Hardy Moore, Paris, for appellees.
   CORNELIUS, Chief Justice.

Winchester Oil Company and Samuel Vaughn appeal from a judgment awarding Dale Glass and A.V. Taylor a fifteen percent of seventy-five percent interest in an oil and gas lease pursuant to an oral agreement with Sam Vaughn, president of Winchester. The trial below was to the court, which entered findings of fact and conclusions of law. Winchester and Vaughn attack the sufficiency of the evidence to support the trial court's findings of (1) a memorandum sufficient to avoid the Statute of Frauds, (2) sufficient part performance by Glass to avoid the Statute of Frauds, and (3) facts sufficient to impose a constructive trust in favor of Glass and Taylor. We hold there is insufficient evidence to support the trial court’s findings of a sufficient memorandum, of part performance, or of a constructive trust in favor of Glass, but that on the theory of unjust enrichment the evidence supports a recovery by Taylor of $11,386.34 paid to Winchester.

In November, 1978, Dale Glass owned a fifty percent interest in a well known as Fleming No. 1. Glass introduced himself to Sam Vaughn, and they agreed that in exchange for the use of Vaughn’s mud pump on Fleming No. 1, Glass would assign Vaughn one-half of Glass’ interest in the well. As it turned out, the well was never completed.

In December, 1978, Glass and Vaughn began building a drilling rig together. In February, 1979, they formed Taltex Drilling Company, a corporation with each owning one-half of the stock. Together they drilled a few wells as Taltex, using the rig they had built. In late July, 1979, Glass left Taltex to work for another drilling company.

During the time that Glass was helping Vaughn build the rig for Taltex in early 1979, he met with the owners of the Ow-ings lease about acquiring the lease. Glass, Vaughn, and two others later met with the owners and negotiated an assignment of seventy-five percent of the lease to Winchester Oil, a company owned entirely by Vaughn. The drilling contract on the Owings heirs well was offered to Taltex by Vaughn, but Glass refused, claiming that the Taltex rig was incapable of drilling the well.

There were written assignments of interests in the well from Winchester to Vaughn, two other developers of the lease, and others, but there was never a written assignment of any interest to Glass.

Glass claims that by oral agreement he, Vaughn, and the two others were each to own one-fourth of the interest assigned to Winchester, with ten percent of each’s interest being sold to finance the well. Glass admits he did not sell any interest in the well but contends his ten percent was sold for him by one of the two others.

Vaughn claims that Glass was only to earn an interest in the well by participating in the Taltex interest, which was offered but refused by Glass; by earning a commission on the sale of interests to finance the well; or by purchasing an interest.

Glass contributed no money toward the drilling of the well. In October, 1979, after it was known that the well would be a producer, Glass and his silent partner, A.V. Taylor, went to the well site. A truckload of tubing had been delivered to the well, and Taylor wrote a check to Winchester in an amount identical to the cost of the truckload of tubing, and gave it to Winchester’s bookkeeper on behalf of Glass. Later, on Glass’ advice, Taylor paid an additional $2,000.00 for him to Winchester. All the money paid to Winchester by Taylor was, according to Glass, paid for completion costs of the well. Receipts for the check and cash were given by Winchester’s bookkeeper. The total amount paid by Taylor to Winchester was $11,386.34.

Glass and Taylor do not contest the applicability of the Statute of Frauds, or that the interest they seek to recover is an interest in real estate. They do contend that there was sufficient written memoran-da to comply with the statute. They argue that Taylor’s check for $9,386.34, which was endorsed by Sammy Vaughn, and on which Taylor had written “Owings Heirs No. 1 advance against completion tubing for well;” and two invoices/receipts given by Vaughn’s secretary constitute sufficient written memoranda.

The Texas Statute of Frauds, found in the Tex.Bus. & Com.Code Ann. § 26.01 (Vernon Supp.1984), requires that, with respect to the agreements defined therein, there must be a written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement, so that the contract can be ascertained from the writings without resorting to oral testimony. Cohen v. McCutchin, 565 S.W.2d 230 (Tex.1978); Dunn v. Growers Seed Ass’n, 620 S.W.2d 233 (Tex.Civ.App.—Amarillo 1981, no writ).

Here, even assuming that Winchester’s bookkeeper had authority to ratify or sign contracts for it, or that Vaughn’s endorsement of the check given by Taylor constituted sufficient signature or ratification, none of the memoranda contained the terms of the assignment. There is no way to determine the extent of the interest claimed by Glass or Taylor by reference to the writings. None of the checks or receipts mentions Glass’ claimed ownership of fifteen percent of the seventy-five percent interest owned by Winchester Oil. Without such essential terms, the writings are insufficient to comply with the statute. Pick v. Bartel, 659 S.W.2d 636 (Tex.1983).

Glass argues in the alternative that he performed his part of the alleged agreement sufficiently to take it out of the Statute of Frauds. However, his testimony was that he owned an interest in the lease because he “found” it, and because he and Vaughn and the two others involved agreed to share equally in the lease. He admits he was the only one of the four who did not sell any interests to finance the well, but argues that his interests were sold for him. The only thing Glass did after the alleged agreement was reached was to tender money for the completion costs, and this was done after the well had been drilled and shown to be a producer.

In some cases, based on equitable considerations, an oral agreement is taken out of the Statute of Frauds where one party completely performs his part of the bargain. Wynnewood State Bank v. Brigham, 434 S.W.2d 874 (Tex.Civ.App.—Texarkana 1968, writ ref’d n.r.e.). But, to justify such equitable relief, the performance must constitute a serious change in position by the performing party in reliance upon the agreement and over and above the payment of consideration. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957); Taber v. Pettus Oil & Refining Co., 139 Tex. 395, 162 S.W.2d 959 (1942); Truitt v. Wilkinson, 379 S.W.2d 400 (Tex.Civ.App.-Texarkana,1964, no writ).

Here, Glass did nothing which placed himself at risk, and nothing which could amount to a serious change in position in reliance upon the contract over and above the payment of consideration. In fact, the only overt act which could be considered performance came after the risk had been assumed entirely by the other parties. Such “performance” is insufficient to avoid the statute.

Glass and Taylor also assert that their recovery is justified by the finding of a constructive trust in their favor. A constructive trust may be an appropriate equitable method for avoiding the effect of the Statute of Frauds and may be imposed where there is a fiduciary or confidential relationship between the parties to the oral agreement before, and apart from, the agreement. Consolidated Gas & Equip. Co. v. Thompson, 405 S.W.2d 333 (Tex. 1966); or where there has been actual fraud, Ginther v. Taub, 675 S.W.2d 724 (Tex.1984); Meadows v. Bierschwale, 516 S.W.2d 125 (Tex.1974). However, strict proof of the elements of a constructive trust is required, and the fact that parties have had prior dealings with each other and that one party trusts the other does not establish the confidential relationship that is required. That one businessman trusts another and relies on his oral agreement is not sufficient to establish a constructive trust. To hold otherwise would render the Statute of Frauds meaningless. Consolidated Gas & Equip. Co. v. Thompson, supra.

(1) PRIOR FIDUCIARY RELATIONSHIP

Proof that the parties were engaged in a joint venture, without more, is insufficient to justify the imposition of a constructive trust. Tyra v. Woodson, 495 S.W.2d 211 (Tex.1973); Consolidated Gas & Equip. Co. v. Thompson, supra. The parties must have had a fiduciary or confidential relationship separate from and predating the agreement giving rise to the lawsuit, and the oral agreement sought to be enforced must also be within the scope of the duties arising from the prior relationship. Rankin v. Naftalis, 557 S.W.2d 940 (Tex.1977).

Vaughn and Glass had no prior relationship in which they jointly owned an interest in a mineral lease apart from their joint ownership or use of a drilling rig. Their prior relationships involved only the drilling company and a drilling rig. Because the alleged impropriety here — i.e., the breach of an oral agreement to convey an interest in a lease — was outside the scope of the prior relationships, it will not give rise to a constructive trust.

Another factor militating against the imposition of a constructive trust here is that Glass' only contribution to the venture was to get his silent partner Taylor to give money to the well after the well had been drilled as a producer, and after the risks had been taken by Vaughn and the other two developers. Such lack of risk taking undercuts the beneficiary’s equitable foundation. Rankin v. Naftalis, supra; Vaquero Petroleum Co. v. Simmons, 636 S.W.2d 762 (Tex.App.—Corpus Christi 1982, no writ). For these and other reasons, we find the evidence legally and factually insufficient to support a finding of a confidential relationship sufficient to justify the imposition of a constructive trust.

(2) ACTUAL FRAUD

The trial court found that Vaughn’s retention of the money paid by Taylor was a fraud on Taylor and Glass, and Vaughn and Winchester have attacked that finding by their Point of Error No. 3. After reviewing all the evidence, we cannot say that the court’s findings and conclusions regarding actual fraud in the retention of the money by Vaughn are legally or factually insufficient. Ginther v. Taub, supra; Meadows v. Bierschwale, supra; Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951); Harris v. Sentry Title Co., 715 F.2d 941 (5th Cir.1983); Restatement of Restitution § 160 (1937). Glass and Taylor claimed a constructive trust and their pleadings also sought an accounting from Winchester and Vaughn. Since we have found the constructive trust remedy inapplicable, but we do find sufficient evidence to support the court’s finding that the retention of Taylor’s money by Vaughn would be inequitable, Vaughn should repay the money under the principles of unjust enrichment. Fitz-Gerald v. Hull, supra.

The judgment of the trial court is modified to provide that Glass and Taylor take nothing on their suit for an interest in the lease, and that Taylor recover the sum of $11,386.34. As modified the judgment is affirmed.

BLEIL, Justice,

dissenting.

I agree with the majority’s decision that Glass and Taylor should take nothing on the basis of the suit which they filed. And, I agree that it might be inequitable for Taylor to lose the $11,386.34 which the evidence shows he advanced. However, I would reverse and render a take nothing judgment rather than modify the judgment based upon an improper search of the record for inequities.

Taylor did not ask the court, based upon equitable grounds or otherwise, to return to him the money he advanced. He did not seek recovery of this money either as a primary part of his suit or on an alternative basis. No point of error or cross-point of error concerns this matter. Therefore, I believe the action of this Court in modifying the judgment to direct the return of the money to Taylor is erroneous.

Ordinarily we cannot consider points raised for the first time on appeal. Gray-Taylor, Inc. v. Tennessee, 587 S.W.2d 668 (Tex.1979); Socony-Vacuum Oil Co. v. Aderhold, 150 Tex. 292, 240 S.W.2d 751 (1951). Nor may we consider a point not properly presented by point of error. Tex. R.Civ.P. 418(d). Fundamental error is a rarity and our consideration of unassigned errors, absent jurisdictional defects, is amiss. Eagle Trucking Co. v. Guin, 640 S.W.2d 873 (Tex.1982); American Gen. Fire & Cas. Co. v. Weinberg, 639 S.W.2d 688 (Tex.1982). Fundamental error in civil cases has been labeled a discredited doctrine. Cox v. Johnson, 638 S.W.2d 867 (Tex.1982).

The lawsuit sought (1) recovery of an interest in land, (2) damages, and (3) an accounting and rentals. The trial court did not have authority to return money on a theory wholly unsupported by the pleadings. That suit was not tried. That case was not appealed.

The majority’s award of money not sought by the plaintiffs, on a theory not pled in the trial court or presented to this Court either by point of error or in argument, constitutes error of the most fundamental type.

      . Tex.Bus. & Com.Code Ann. § 26.01 (Vernon Supp.1984) provides:
      (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
      (1) in writing: and
      (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
      (b) Subsection (a) of this section applies to:
      (1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;
      (2) a promise by one person to answer for the debt, default, or miscarriage of another person;
      (3) an agreement made on consideration of marriage;
      (4) a contract for the sale of real estate;
      (5) a lease of real estate for a term longer than one year;
      (6) an agreement which is not to be performed within one year from the date of making the agreement;
      (7) a promise or agreement to pay a commission for the sale or purchase of:
      (A) an oil or gas mining lease;
      (B) an oil or gas royalty;
      (C) minerals; or
      (D) a mineral interest; and
      (8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 1.03, Medical Liability and Insurance Improvement Act of Texas. This section shall not apply to pharmacists.


author: McCLOUD, Chief Justice.

text:
    Richard W. INMAN, Appellant, v. STATE of Texas, Appellee.
    No. 11-83-279-CR
    Court of Appeals of Texas, Eastland.
    Nov. 15, 1984.

      Stephen L. Halsey, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., Dallas, for appellee.
   McCLOUD, Chief Justice.

The jury convicted appellant of burglary of a habitation, and assessed his punishment at confinement in the Texas Department of Corrections for a term of forty (40) years. We affirm.

The record reflects that on July 5, 1983, the appellant unlawfully entered the victim’s apartment and raped her. The sufficiency of the evidence is not challenged.

On July 18, 1983, the appellant and his parents voluntarily came to the police station where appellant was interviewed by Police Officer James M. Brigdon who was investigating the offense. Brigdon took the appellant to an interview room and questioned him about the incident. Brig-don wrote down what appellant stated. After reducing appellant’s statement to writing, Brigdon asked Melanie Old, an employee of the Dallas Police Department, to come into the interview room and witness the statement. Brigdon Was reading the statement to the appellant, when the appellant’s father walked into the room and told the appellant “not to sign anything.” Brig-don continued to read the statement to appellant. When Brigdon finished reading the statement, he gave the statement to the father to read. After the father finished reading the statement, he asked his son, the appellant, “Did you rape the woman?” The appellant answered, “Yes.”

Appellant argues in his first ground of error that the testimony of Brigdon and Old, regarding appellant’s oral statement that he raped the woman violates TEX. CODE CRIM.PRO.ANN. art. 38.22 (Vernon 1979, Vernon Supp. 1984). Section 5 of Article 38.22 provides that “Nothing in this article precludes the admission of a statement made by the accused ... that does not stem from custodial interrogation.”

The written unsigned statement was not introduced in evidence. The State did not introduce any evidence of an oral confession made to Officer Brigdon. The only evidence of an oral statement made by appellant was the testimony of Brigdon and Old regarding the question asked by appellant’s father, and the appellant’s answer.

In Chambliss v. State, 647 S.W.2d 257 (Tex.Cr.App.1983), the Court recently held that statements which are “not the result of” or “do not stem from” custodial interrogation are admissible under Article 38.22 on the question of guilt. In Chambliss, the defendant orally confessed to a fellow jail inmate. The Court concluded in Autry v. State, 626 S.W.2d 758 (Tex.Cr.App.1982), that an oral statement made by the defendant over the telephone, and heard by an officer, was not the result of custodial interrogation.

The Supreme Court of the United States in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) stated:

[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the Court referred to its “Miranda” decision and stated that by “custodial interrogation” the court meant “questioning initiated by law enforcement officers.”

Statements made to a nurse were not the result of custodial interrogation in Arnold v. State, 659 S.W.2d 45 (Tex.App.—Houston [14th Dist.] 1983, no pet’n), because the nurse was not a police officer, nor was she acting at the request of police officers to elicit incriminating information from the defendant. The statement made to a fellow jail inmate was held admissible in Lalande v. State, 651 S.W.2d 402 (Tex.App.—El Paso 1983), affirmed on other grounds, 676 S.W.2d 115 (Tex.Cr.App.1984), because the fellow inmate was not “acting as an agent of law enforcement personnel at the time he received this confession.” In Donaldson v. State, 651 S.W.2d 29 (Tex.App.—Dallas 1983, no pet’n), the defendant, not in response to questions asked by the police officers, volunteered information regarding a third party who had the “pistol and the money.” The Court held that since the statement was not in response to an inquiry by the police officers, it was not the product of interrogation. The Court in Earnhart v. State, 582 S.W.2d 444 (Tex.Cr. App.1979), held that an oral statement by the defendant that a shirt had blood on it and he wanted another one, was admissible because it was not in response to a question by the police officer, and not the product of interrogation.

In the instant case, the oral statement made by the appellant was in response to a question asked by appellant’s father. The father was not acting at the request of Officer Brigdon. The confession that appellant raped the victim did not stem from a question asked by the police officer.

We agree with the trial court that the oral statement that appellant raped the “woman,” was admissible because it did not “stem from custodial interrogation.” Appellant’s first ground of error is overruled.

Next, appellant asserts that the trial court erred in failing to file express findings of fact and conclusions of law as required by Section 6 of Article 38.22 on the issue of the voluntariness of appellant’s confession. We disagree. The only issue raised in the trial court, and in this Court, on the admissibility of the oral confession is whether the statement stemmed from custodial interrogation. The trial court first heard the matter outside the presence of the jury and ruled that the statement did not stem from custodial interrogation. The oral statement of appellant made to his father was a “volunteered” statement which was not the result of custodial interrogation, and the constitutional or statutory safeguards surrounding confessions obtained as a result of custodial interrogation urged by appellant are not applicable. See Schofield v. State, 658 S.W.2d 209 (Tex. App.—El Paso 1983, no pet’n). The second ground of error is overruled.

During the State’s argument at the guilt or innocence phase of the trial, the prosecutor argued:

None of them (the State’s witnesses) had any prior criminal record and their credibility just wasn’t seriously attacked on any front because they were telling you the truth and they didn’t have any motive to lie.

Appellant objected to the prosecutor “testifying that they were telling the truth.” The objection was sustained, and the jury was instructed not to consider the remark. First, we think that the remark was a reasonable deduction from the evidence. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976). Furthermore, if the remark was improper, the prejudicial effect was cured by the court’s instruction to disregard. Ayers v. State, 606 S.W.2d 936 (Tex.Cr.App.1980); Garza v. State, 622 S.W.2d 85 (Tex.Cr.App.1980). Appellant cannot now argue that the comment improperly bolstered the State’s witness. The error presented on appeal must be the same as the objection raised before the trial court. Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980). Appellant’s third ground of error is overruled.

Lastly, appellant complains that the prosecutor injected unsworn testimony of personal knowledge and opinion when the prosecutor argued to the jury:

I don’t know if the lawyers on either side talked to you about it on voir dire or not, but I’ll tell you this right now, that both sides at the counsel table have equal access of subpoena power and either side can subpoena down here anybody they want to. But I don’t think it would have been necessary—
MR. HALSEY: I’ll object to that. I think that’s testifying and a misstatement of reality.
THE COURT: Overruled.

Assuming, without deciding, that the argument was improper, the statement by the prosecutor was not so prejudicial and harmful as to require reversal. Williams v. State, 607 S.W.2d 577 (Tex.Cr.App.1980).

The judgment of the trial court is affirmed.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Kenneth SMALL, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-032-CR.
    Court of Appeals of Texas, Waco.
    Nov. 15, 1984.

      Ricky Sims, Teague, for appellant.
    Patrick H. Simmons, County Atty., Rex N. Leach, Asst. County Atty., Groesbeck, for appellee.
   OPINION

THOMAS, Justice.

A jury convicted Appellant of robbery, and after he pled “true” to a prior burglary conviction, the court assessed his punishment at twelve years in prison. Appellant contends that: (1) the State violated his constitutional right to a fair trial when it used its peremptory challenges to strike all black persons from the jury, and (2) the court erred when it allowed the State to question him about his two brothers who were in prison. The judgment is affirmed.

Ellis Coleman, a seventy-year-old black man, was robbed of $8.00 as he walked to his home at 6:30 a.m. Coleman identified Appellant at trial as the person who robbed him; however, Appellant denied robbing Coleman and relied on an alibi defense.

Appellant contends in his first ground of error that he was denied a fair and impartial trial because the State used its peremptory challenges to strike all black persons from the jury panel. This contention was raised in a motion for mistrial which was orally presented to the court after the parties made their peremptory strikes and before Appellant entered his plea. Appellant argued that the State used its peremptory challenges “indiscriminately and without just cause” to prevent members of his own race from serving on the jury. After Appellant failed to present any evidence showing a systematic exclusion of black persons from juries in Limestone County, the court overruled the motion for mistrial.

Assuming, without deciding, that a complaint of this nature can be preserved for appellate review at that stage of the proceeding by a motion for mistrial rather than through a motion to quash the jury panel, the ground is nevertheless untenable. Appellant admits that the record does not show a “systematic exclusion” as required by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and Ridley v. State, 475 S.W.2d 769 (Tex.Cr. App.1972). He suggests, however, that we discard these precedents in favor of an alternate procedure outlined in Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979). We refuse to ignore Swain and Ridley, and ground one is overruled.

Appellant alleges in his second ground that the court committed reversible error when it allowed the prosecutor, over defense objections, to question him about his brothers being prison inmates. He argues that the testimony was designed to prejudice him before the jury by showing that he was a criminal from a family of criminals. The State points out, however, that Appellant had attacked Coleman’s mental capacity and credibility by attempting to show that it was illogical for a robber to identify himself to a robbery victim, which Coleman claimed that Appellant had done. The State argues that, under such circumstances, it could prove that Appellant’s two brothers had prison records to explain why Appellant had mentioned his name to Coleman during the robbery. The State contends that Appellant mentioned his name during the robbery to intimidate and threaten Coleman into turning over his money.

Ordinarily, the character of the accused’s associates or family members is not admissible as evidence of guilt. Koller v. State, 518 S.W.2d 373, 377 (Tex.Cr.App. 1975). To determine the admissibility of any type of evidence, the court first must compare the evidence with the essential elements of the State’s case to establish the necessary relationship between the evidence and the crime charged. Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App. 1972). If the necessary relationship is established, then the court must weigh the probative value of the evidence against its inflammatory or prejudicial impact. Bush v. State, 628 S.W.2d 441, 444 (Tex.Cr.App. 1982); Cobb v. State, 503 S.W.2d 249 (Tex. Cr.App.1973).

The indictment charged that Appellant had intentionally and knowingly placed Coleman in fear of imminent bodily injury, which is an essential element of robbery. Tex.Penal Code Ann. § 29.02(a)(2) (1974). The State’s theory was that when Appellant mentioned his name to Coleman during the robbery, he placed Coleman in fear of imminent bodily injury because Appellant was from a notorious criminal family and that Coleman knew this family’s reputation. (Appellant admitted at trial that Coleman probably knew that he and his brothers had felony records.) Intimidation or threats need not be blatantly administered in every situation to control the will of a robbery victim. They may also be subtly used to achieve the desired result. The testimony regarding Appellant’s brothers related to an essential element (placing Coleman in fear of imminent bodily injury) of the offense charged and tended to explain why Appellant would have mentioned his name to Coleman during the robbery. The evidence tended to prove that Appellant mentioned his name during the robbery to subtly intimidate and instill fear by informing Coleman, an elderly man, that he was being robbed by one of the notorious Small brothers and that he should, therefore, comply with Appellant’s demands. We hold that the evidence regarding the criminal convictions of Appellant’s brothers was relevant under the facts of this case because it necessarily related to and tended to prove an element of the offense charged.

Appellant admitted at trial that he had served time in prison for burglary. Any prejudice that might have occurred when the jury learned of his brothers’ criminal activity would not be as great as the prejudice that Appellant had already suffered by admitting his own prior criminal activity. The prejudicial impact of this evidence was, therefore, minimal. Because the evidence regarding Appellant’s brothers tended to prove the State’s case and thus had great probative value, we conclude its probative value outweighed any possible prejudicial impact. The evidence was properly admitted, and ground two is overruled.

Affirmed.


author: ROWE, Justice.

text:
    STANDARD CONTAINER CORPORATION, Appellant, v. DRAGON REALTY, and Crow Dallas Industrial, Inc., d/b/a Trammell Crow Company, Appellees.
    No. 05-83-01194-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 15, 1984.
    Rehearing Denied Dec. 14, 1984.

      William M. Jones, Dallas, for appellant.
    Aimee Hess, Dallas, for appellees.
    Before CARVER, ROWE and SHUM-PERT, JJ.
   ROWE, Justice.

Standard Container Corporation appeals from a judgment entered against it, as tenant, in favor of Dragon Realty and Crow Dallas Industrial, Inc., d/b/a Tram-mell Crow Company, as landlord, in a case tried non-jury for recovery of rentals on premises which Standard continued to occupy following expiration of the term of a written lease agreement. In a sole point of error, Standard contends that the trial court erred in setting the monthly holdover rental rate at reasonable market value. We disagree with this contention and affirm the trial court’s judgment.

The trial judge made findings of fact and conclusions of law pertinent to this appeal as follows: (1) Dragon and Crow did not consent to the holdover of the premises by Standard after expiration of the lease; (2) the lease did not authorize Standard’s holdover of the premises; (3) Standard’s use or occupancy of the premises after expiration of the lease constituted an unauthorized holding over of the premises; (4) the reasonable market value of the premises for the holdover period was $8,317.00 per month; and (5) Standard is obligated to Dragon and Crow for the reasonable market value of the premises during the holdover period, less off-setting credits.

Standard argues that the lease agreement contained a provision setting the rental rate for any holdover period, and that this provision superseded the general rules governing the amount of rent for holdover tenancies. The paragraph of the lease agreement relied upon by Standard reads as follows:

15. Holding Over. Should Tenant, or any of its successors in interest, hold over the premises, or any part thereof, after the expiration of the term of this lease, unless otherwise agreed in writing, such holding over shall constitute and be construed as a tenancy from month to month only, at a rental equal to the rental payable for the last month of the term of this lease plus twenty per cent (20%) of such amount. The inclusion of the preceding sentence shall not be construed as Landlord’s permission for Tenant to hold over.

The parties dispute the effect which the last sentence of paragraph 15 has on the landlord’s remedies. Standard contends that the sentence converts paragraph 15, regardless of the landlord’s permission, into an exclusive remedy in the nature of liquidated damages, to be measured by the increased rentals therein provided. Dragon and Crow contend the sentence makes paragraph 15 applicable only if Dragon and Crow consent to Standard’s holding over after expiration of the lease. We cannot agree entirely with either contention. We find in the sentence a clear intent to reserve to the landlord the right to refuse the tenant permission to hold over and to preserve for the landlord’s benefit all remedies otherwise available, either under the lease or at law, which arise in the absence of permission. Paragraph 15 thus becomes an alternate, rather than an exclusive, remedy in the event of Standard’s wrongful holdover of the premises.

The evidence in the record clearly supports the trial court’s finding that Dragon and Crow did not consent to the holdover. After Standard informed Dragon and Crow that it wished to remain in the premises for a short period of time after the lease expired, Dragon and Crow orally and by letter proposed a month-to-month tenancy at a rental of $8,317.00 per month if Standard planned to stay. The letters also informed Standard that if that proposal was not acceptable, Standard would be expected to vacate the premises on the date of expiration of the original lease. Standard did not respond to this proposal except to question why the rent was not the amount provided in paragraph 15 of the lease. Dragon and Crow explained that the lease provision was inapplicable since they did not consent to a holdover on those terms. Although no agreement was reached as to terms, Standard continued to occupy the premises for approximately three months, paying only the amounts which would have been due under paragraph 15 for two of those months. Although Standard’s account was credited with its security deposit and the two payments it made, Dragon and Crow continued to invoice Standard for the difference in the amount credited and the market rental value for the months the premises were occupied after the lease expired and demanded that Standard vacate the premises.

By failing to comply with its obligation under the lease to vacate the premises upon termination of the lease, Standard was in default; and therefore, in wrongful possession. See State v. City National Bank of Austin, 603 S.W.2d 764, 765 (Tex.1980) and 49 Am.Jur.2d Landlord & Tenant § 1115 (1970). In addition to three specific remedies for default (“default” being defined in paragraph 17 of the lease to include the tenant’s failure “to comply with any term, provision or covenant” of the lease), paragraph 18 of the lease provides that Dragon and Crow are not precluded from pursuing any other remedies provided by law. The remedies provided by law when a tenant holds over include a forcible detainer action to recover possession of the premises and an action for recovery of damages in a court of competent jurisdiction. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 309 (1935); Dews v. Floyd, 413 S.W.2d 800, 805 (Tex. Civ.App.—Tyler 1967, no writ); and TEX. PROP.CODE ANN. § 24.008 (Vernon 1984). Since Dragon and Crow had already recovered possession at the time suit was filed in the court below, the remedy it sought was recovery of damages for the wrongful holdover. In an action for damages for a tenant’s wrongful holdover of a lease the landlord’s proper measure of damages is the reasonable market value of the use of the land for the time the tenant held over. Kaplan v. Floeter, 657 S.W.2d 1, 3 (Tex.App.—Houston [1st Dist.] 1983, no writ) and Whitfield v. Gay, 253 S.W.2d 54, 56 (Tex.Civ.App.—Eastland 1952, no writ).

Based on the foregoing, we hold that the trial court correctly set the damages for the wrongful holdover of the premises at reasonable market value. Accordingly, appellant’s ground of error is overruled.

Dragon and Crow request in a crosspoint that this court award a penalty of ten percent of the amount of the judgment because this appeal was taken solely for delay, or alternatively, without sufficient cause. In support of this request, Dragon and Crow cite TEX.R.CIV.P. 438 (Vernon 1967), which imposes a mandatory duty on this court to assess such a penalty if we find that an appeal was taken for delay and that there was no sufficient cause. Although we have overruled Standard’s point of error, we find that the record does not justify the conclusion that the appeal was solely for the purpose of delay, and consequently do not agree that Standard should be penalized for asserting its right to appeal. International Ins. Co. v. Hernandez, 659 S.W.2d 922, 925 (Tex. App.—Corpus Christi 1983, no writ). Ap-pellee’s crosspoint is overruled.

Affirmed.

      . Paragraph 18 reads as follows in pertinent part:
      18. Remedies. Upon the occurrence of any of such events of default described in Paragraph 17 hereof, Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever:
      (a) Terminate this lease, ...
      (b) Enter upon and take possession of the premises....
      (c) Enter upon the premises by force if necessary....

        Pursuit of any of the foregoing remedies shall not preclude pursuit of any of the other remedies herein provided or any other remedies provided by law, [emphasis added] nor shall pursuit of any remedy herein provided constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord by reason of the violation of any of the terms, provisions and covenants herein contained.