author: PARROTT, Presiding Judge.

text:
    Gary L. PETERS, Appellee, v. MICHAEL CONSTRUCTION COMPANY, INC., Michael Construction Company of Tennessee, Inc., MCC of Florida, Inc., Biloxi Pre-Stress Concrete, Inc., and J.B. Michael, Jr., Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 13, 1984.
    Certiorari Denied by Supreme Court March 25, 1985.

      Carlos C. Smith and Larry L. Cash with Strang, Fletcher, Carriger, Walker, Hodge & Smith, Chattanooga, for appellants.
    F. Ferber Tracy and Harold H. Baxley with Spears, Moore, Rebman and Williams, Chattanooga, for appellee.
   OPINION

PARROTT, Presiding Judge.

The plaintiff, Gary L. Peters, brought this suit to determine whether he is entitled to additional compensation following the termination of his employment by the defendants. Peters is a certified engineer who worked for the defendants during a ten-year period ending in October of 1981. The defendants are J.B. Michael, Jr. and four heavy construction companies which Michael owns and controls. During his employment with Michael, Peters held positions of substantial responsibility in a relationship which proved quite lucrative for both Michael and Peters.

Throughout a long and complicated bench trial, Peters proceeded on two theories. He argued that he held a ten percent partnership interest in the profits and capital of one Michael corporation (which included the “Tennessee Division”). He argued alternatively that Michael had breached an oral employment contract and was liable for damages on that contract. The chancellor ruled — and Peters apparently concedes — that there is no basis for finding a partnership. The chancellor also ruled that any oral employment contract which Peters had with Michael is void because it is contrary to the statute of frauds. Peters appeals from this aspect of the chancellor’s decision.

Although he found against Peters on both theories advanced by counsel, the chancellor awarded a judgment against Michael in the amount of $169,974.00. The chancellor based his judgment on an implied contract theory and calculated damages in a manner discussed more fully below. Not surprisingly, Michael finds this aspect of the chancellor’s ruling objectionable and raises several issues to defeat it on appeal.

I. THE FACTS:

The evidence tends to support the following facts. J.B. Michael, Jr. used a complex system of compensation to pay Peters and other key employees in his business. That system included a flat yearly salary and a bonus. The bonus was calculated as a fixed percentage of the profits on projects under the key employee’s control. It was intended to give the employee a strong incentive to increase those profits. As it pertains to this suit, the central factor in the bonus calculation was the treatment of heavy equipment. Michael believed that— in order to keep profits high — equipment owned by the companies should be carefully maintained. He reasoned that careful maintenance would lower the huge capital outlays required to replace equipment and would thus increase profits.

As an incentive to employees to encourage careful maintenance of heavy equipment, Michael charged the purchase price of equipment against the profits of the division which used the equipment. Thus a crane with a $100,000 price tag used by a given division, would be charged against the profits of that division over a five-year period. Because division profits were effectively lowered by $20,000 per annum for five years, the key employee in charge of the division would make a smaller bonus during those five years. However, proof showed that cranes and other heavy equipment functioned for much longer than five years if they were carefully maintained. Therefore, a division’s profits, and the key employee’s bonus, would rise substantially in the years after the crane was “paid for” out of that division’s profits. Thus, a key employee could increase his bonus by maintaining equipment so that it lasted longer.

The proceeds from a heavy equipment sale were credited as profit within the seller division for purposes of deciding the key employee’s bonus. Even when equipment was transferred from one division to another within the Michael operation, a credit equal to the fair market value was used to increase the profits of the transfer division and thereby enhance the managing employee’s bonus. Michael emphasized to Peters that the best way for Peters to make money in the construction business was to build an interest in future bonuses by caring for equipment assigned to his division. Peters’ bonus was always calculated as a fixed percentage of profits. At the time of his termination that percentage equalled ten percent of all profits on projects under Peters’ control.

The trial court found that Peters held an equitable interest in the equipment which had been charged against the profits in his division. The chancellor stated that he “considered several alternatives to compensate Mr. Peters equitably upon his termination because upon his termination he lost the right to use the equipment that had been paid for out of the profits of his division and out of his bonus.” The parties contested the amount due Peters during the last full fiscal year and four months that he was with Michael. The chancellor decided that Peters should have an amount equal to ten percent of the equipment payments which had been deducted from Peters’ profits during that sixteen-month period and found that amount to be $185,740. He subtracted from that figure a $36,313 “negative bonus” which Michael argued had been overpaid to Peters in his last bonus. Michael also argued that Peters’ bonus should be further reduced because an $800,000 damages claim was pending in a suit over environmental damage caused by a project which Peters had supervised. The chancellor took the $800,000 figure and divided it by two because of two contingencies: (1) that the full $800,000 would not be assessed against Michael, and (2) that the corporation insurance would cover part or all of the claim. He then took the ten percent of the $400,000, for $40,000. The chancellor found that Michael realized an increased profit of $225,000 on a project begun by Peters. The chancellor also credited most of a large insurance rebate check to Peters’ division and awarded Peters ten percent of that figure or $38,047. Thus, the chancellor arrived at the final judgment amount using the following calculation:

Base figure - $185,740 10 percent of the amount paid by Peters’ division during his final 16 months with Michael

Debits - 36,313 alleged overpayment to Peters

40,000 10% of the $400,000 potential claim against Michael discounted after it was discounted by one-half

Credits - 22,500 10% of the increased

profits on a Peters project 38,047 10% of that part of an insurance rebate attributable to premium for Peters’ division

Pinal judgment - $169,974

We affirm the chancellor’s conclusion that Peters cannot recover on the bases of oral employment contract or partnership. We reverse the chancellor’s decision on quasi contract for two reasons — Peters’ failure to show unjust enrichment and his failure to prove damages. Each of these is a sufficient basis for reversal; but, because of the complexities of this case, each merits some discussion.

II. FAILURE TO PROVE UNJUST ENRICHMENT

The Tennessee case of Paschall’s, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 155 (1966) sets out the essential prerequisites for a recovery in quasi contract as follows: “A benefit conferred upon the defendant by the plaintiff, appreciation by the defendant of such benefit, and acceptance of such benefit under such circumstances that it would be inequitable for him to retain the benefit without payment of the value thereof.” (quoting Restitution and Implied Contracts, 66 Am.Jur.2d 947 § 4). This is not a proper case for the imposition of a quasi contract because the third prerequisite is not met; i.e. Michael corporations have not received a benefit under circumstances which would make it inequitable for them to retain that benefit. This last prerequisite is less precise than the first two but no less essential. Its application in this case may best be explained by contrasting the facts at hand with those in a quasi contract case cited and relied upon by the chancellor below. As the chancellor noted, Hunt v. Temco, 61 Tenn.App. 35, 452 S.W.2d 879 (1969) is similar to the case at bar because it is a suit by a terminated employee to recover the value of services rendered during the employment relation. The complainant in Hunt was a former sales manager for a heater manufacturer, who had received a commission of from ten to twenty percent on certain heaters. His commission was fixed by a written contract which expired by its own terms but was orally renewed until January 7, 1948. The complainant sought to recover a commission on sales which occurred between January 7, 1948, and the date he was discharged, February 21, 1948.

The trial court permitted recovery in Hunt and this court affirmed that decision. However, despite their apparent similarities, this case is distinguishable from Hunt in ways which must preclude recovery here. The essential distinction turns on the nature of unjust enrichment. As the Paschal court emphasized, the “most significant requirement for recovery on quasi contract is that the enrichment to the defendant be unjust.” In Hunt, the complainant was directly responsible for purchases from the defendant by his customers. Bluntly put, money flowed into the defendant’s pocket which he would not have received but for the efforts of the complainant. The same cannot be said in the case at bar. Peters did not, in any sense of the word, “pay” for the heavy equipment. The Michael corporations purchased each and every piece of equipment. No money flowed to Michael through Peters’ efforts to maintain the equipment.

In short, this voluminous record contains no evidence that Michael was enriched, much less unjustly enriched, by Peters’ decision to maintain equipment so as to preserve its value. Michael will undoubtedly receive some economic benefit if the equipment lasts three weeks (or six months, or ten years) longer because of Peters’ effort to maintain it carefully. Similarly, Michael will benefit if it sells equipment which has an enhanced fair market value because of Peters’ efforts. But at this point there is no showing that Michael has received such a benefit. Moreover, there is no proof that such a benefit, if and when it is realized, would be unjust.

We note here that Peters does not claim to have been undercompensated during his employment with Michael. Indeed, the record shows that Peters received more than $650,000 in bonuses alone during the ten years he worked for Michael. We cannot conclude that a corporate employer is unjustly enriched because its employee takes pains to preserve and maintain the capital assets of the corporation, even where the employer has devised a compensation scheme which rewards that employee for maintaining corporate assets. Therefore, we hold that Peters has failed to show that Michael was unjustly enriched.

III. FAILURE TO PROVE DAMAGES

There is a second reason why the judgment based on unjust enrichment cannot be affirmed. The inadequacy of proof in this case permits only a highly speculative assessment of damages. This fact is illustrated by an examination of the award made by the chancellor.

The chancellor chose the base figure of $185,740 by looking at the amount of “rent,” or equipment payments which had been deducted from Peters’ profits during his last sixteen months with the company. True, this figure is not speculative in the sense that it was readily ascertainable by examining Michael’s books. However, it is arbitrary. The chancellor stated that he was compensating Peters for the loss of equipment use caused by his termination. We can divine no clear reason why the amount charged against Peters’ profits should be just compensation for the value of the equipment’s use. Moreover, we see no reason to use the last sixteen-month period rather than the last six months or twenty-six months. We find that the selection of this amount as a base figure is based on arbitrary assumption which cannot be upheld here. The same objection applies to the $40,000 debit. We see no basis in fact for the selection of the factor of one-half which was used to lower the $800,000 environmental claim. The same rationale would have permitted lowering the amount by one quarter to two-thirds. There is no proof in this record of the likelihood that the insurer will ultimately be held liable. Again we must find that this figure is based on assumptions which are inadequately supported by the record.

Because Peters has failed to prove damages, we find that his arguments about the Statute of Frauds merit little consideration. This was not a jury trial in which a preliminary ruling on the Statute of Frauds foreclosed plaintiff’s efforts to prove damages flowing from an alleged breach of an oral contract. Rather, it was a bench trial in which plaintiff had an ample opportunity to prove damages flowing from the alleged breach. We pretermit the question of whether the statute forecloses his argument based on breach of oral contract. We do so because — even if, arguendo, this contract is beyond the statute — Peters has still failed to prove his damages in any but a highly speculative fashion. Moreover, we agree with the chancellor’s finding that, quite apart from the Statute of Frauds, the proof shows that neither party contemplated what sums Peters might receive at termination. In other words, while there was undoubtedly an employment contract, the record does not disclose facts necessary to show contract for property rights in Michael’s equipment.

For the reasons set forth above, we reverse the chancellor’s finding that Peters should recover $169,974 on a quasi contract theory. We affirm that part of the chancellor’s decision which denies recovery on oral employment contract and partnership theories. We further find that Michael’s counterclaim for $36,313 is inadequately supported by the proof and it is hereby denied. Thus, the chancellor’s judgment is affirmed in part and reversed in part with the costs of this appeal taxed equally to the appellant and appellee.

SANDERS and FRANKS, JJ., concur.

      . Michael argued in a counterclaim that the $36,313 was overpaid based on misinformation supplied by Peters. The chancellor made no explicit decision on Michael’s counterclaim but permitted it to be offset against the amount which Peters was awarded.

      . The speculative nature of the proof in re Peters’ final projects vitiates Michael’s counterclaim for damages as well as Peters’ claim. Any of several factors might increase or decrease the amount which Michael claims. For example, if most of the insurance rebate is attributable to Peters’ account, 10 percent of that part, or $48,-047 as found by the chancellor, would more than offset the $36,313 claimed by Michael. Because of the speculative nature of the proof, we conclude that the evidence preponderates against Michael’s claim for the $36,313 "overpayment.”


source: Caselaw Access Project

author: TOMLIN, Judge.

license: Public Domain

text:
    Rev. Dr. Isaac RICHMOND, Petitioner-Appellee, v. Eugene BARKSDALE, Sheriff, and Kenneth Turner, Judge of the Juvenile Court of Memphis and Shelby County, Tennessee, Respondents-Appellants.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Dec. 14, 1984.
    Rehearing Denied Jan. 16, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.
    William E. Shepard of Memphis Area Legal Services, Inc., Memphis, for petitioner-appellee.
    Harold W. Horne, Asst. Atty. Gen., Memphis, for respondents-appellants.
   TOMLIN, Judge.

The sheriff of Shelby County appeals from an order granting plaintiff’s petition for a writ of habeas corpus. Petitioner filed his petition after having been found in contempt of court by the juvenile court for failure to pay delinquent child support. He had been ordered to jail until he purged himself of contempt. Following a hearing, Judge James Sweargen, Shelby County Circuit Court, granted the writ, holding that the imprisonment was unconstitutional because of defects in the mittimus. The single issue before us is whether or not this action of the circuit court was proper. We hold that it was not and reverse.

The facts are not in dispute. It appears the petitioner was cited for contempt of court in the juvenile court after he had fallen behind in his child support payments. He was found guilty of contempt for failing to pay $1,200 in delinquent child support. That court directed that he be imprisoned and issued a mittimus to accomplish that purpose. The mittimus issued was a printed form with blanks to be checked and/or filled in to indicate the charges, the result of the hearing on the charges, and the directions given to both the sheriff and the clerk of the court.

Following his confinement, petitioner filed this petition in the circuit court. While the petition for the writ of habeas corpus does allege in a single paragraph that the commitment papers by which he was confined were “faulty”, the bulk of the petition is given over to allegations that, (1) he failed to pay child support because of his inability and lack of funds, (2) that he was held in contempt of court without the existence of credible, competent proof, (3) that the purge payment ordered was excessive and beyond his ability, thus depriving him of his constitutional rights, (4) that the order of confinement in this case was arbitrary treatment on the part of the juvenile court, and (5) that certain findings of the juvenile court were without merit. There is no proof in the record to indicate whether or not petitioner prayed a direct appeal from the finding of the juvenile court holding him in contempt.

The mittimus, as completed by the juvenile court judge, is directed to the defendant and states that the petitioner had been brought before the court on a charge of failure to pay support pursuant to Tennessee Code Annotated § 36-835, and that he had been found guilty of contempt. The mittimus then directed the sheriff as follows: “You are hereby commanded to take the body of said person and the same safely keep in the County Jail” for an indefinite period. The mittimus further stated that “[t]he Clerk of this Court is authorized to direct the release of said person: ... upon payment by him or in his behalf the sum of $1200.00.” As previously noted, this document reflects that it issued from the Juvenile Court of Memphis and Shelby County.

While the order granting the writ of ha-beas corpus stated no reasons, other than that “it appears to the Court that the Petitioner is being unlawfully restrained of his liberty,” the transcript of the court’s ruling reveals the reasons for his actions.

THE COURT: Well, I am of the opinion that the order part of this mittimus to incarcerate this man for an indefinite period of time, if it said for an indefinite period of time or until he pays a certain amount, then that would be fine, but it directs the keeper of the County Jail to hold him for an indefinite period of time. Farther down, it says that the Clerk may also direct his release when he pays twelve hundred dollars, but it doesn’t direct the Sheriff to do anything at any time except to hold him for an indefinite period of time, and I just think that that is an illegal incarceration, and for that reason I am going to order his immediate release.

In Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740 (1960), our Supreme Court specifically held that when one is cited for contempt for failure to pay alimony:

[T]he order cannot be attacked by the bringing of a habeas corpus proceeding based on the inability to comply with the order because the remedy here, where there is a holding of contempt, is by an appeal. State ex rel. Wright v. Up-church, 194 Tenn. 657, 254 S.W.2d 748. Thus on the appeal there is the record which shows the facts and they are fully set forth upon which the contempt order is based. This would not be true in a petition for habeas corpus.

Id., 341 S.W.2d at 742.

Although Leonard involved delinquent alimony, the same principles would apply to a case as the one sub judice which deals with delinquent child support. The great majority of the grounds set forth by the petitioner in his petition go to the merits and deal with the same type of issues presented in Leonard. Therefore, petitioner cannot by a habeas corpus proceeding challenge his imprisonment for contempt based upon his inability to pay or upon other grounds which depend upon the presentation of substantive proof, pro or con.

Ignoring these more difficult problems, the trial judge chose to find fault with the juvenile court’s mittimus in that the sheriff was directed to hold petitioner for an indefinite period of time, to be released upon the payment of $1200. He did not find that the juvenile court lacked jurisdiction to find the petitioner in contempt, nor did he rule the judgment of the juvenile court holding petitioner in contempt to be void.

The propriety of a petition for a writ of habeas corpus involving circumstances as in the case sub judice was reviewed by our Supreme Court in State ex rel. Anglin v. Mitchell, 575 S.W.2d 284 (Tenn.1979):

Since only a void judgment may be attacked by the remedy of habeas corpus, the question presented is always one of jurisdiction, that is, whether the order, judgment or process under attack comes within the lawful authority of the court or judge rendering or issuing it. (citations omitted) As held by the Court of Appeals in this case, the writ does not lie to correct mere errors and irregularities committed by a court that is acting within its jurisdiction, that is, errors which fall short of depriving the court of jurisdiction. State ex rel. Holbrook v. Bomar, supra, [211 Tenn. 243, 364 S.W.2d 887 (1963)]. Only those defects which are recognized as rendering absolutely void the proceedings whereby the petitioner is imprisoned may be reached by habeas corpus. State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310 (1966); State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186 (1968). The writ reaches jurisdictional error only; it is not available to serve the purpose of an appeal or writ of error.

Id. at 287.

When one considers the opinion of the trial judge, it is clear that he finds this mittimus to be “defective” on the ground that the period of time the sheriff is directed to hold the petitioner is “indefinite.” Inasmuch as we must conclude that the juvenile court was acting within its jurisdiction, our only responsibility is to determine whether any errors were committed by the juvenile court in the issuance of the mitti-mus, and if so, were these errors of such a substantial nature as to render the entire proceeding void, thus depriving the court of its jurisdiction. Anglin, supra states: “A court’s jurisdiction at the beginning of a trial may be lost in the course of the proceedings due to its failure to afford the defendant due process of law.” 575 S.W.2d at 287.

The problem with the case before us is that the petitioner is attacking the mitti-mus rather than the judgment. A mitti-mus is similar to an execution after judgment in a civil case. It is the means by which the judgment of the court is carried out. It was the judgment of the juvenile court that found the petitioner guilty of contempt, and it was the judgment of the juvenile court that ordered that he be committed to the Shelby County Jail. The purpose of the mittimus is to tell the sheriff, who was not a party to the suit that produced the judgment, who he is to take into custody, why he is to take him, where he is to take him, and for how long.

Not only does the petitioner fail to attack the judgment, he also did not put into the record a certified copy of the judgment of contempt. That being so, the trial court should, and this Court will, presume that the judgment of contempt is proper in content, substance, and form. Since the mittimus is a ministerial order, an error in the mittimus that is contrary to the judgment should not vitiate the judgment — i.e., the order of confinement.

Having held that the office of petition for a writ of habeas corpus cannot serve as a substitute for an appeal, we also hold that the trial court was in error in holding that there was an error in the mittimus and that that alleged error justified the release of the petitioner. For these reasons, the judgment of the trial court is reversed, and the petition for writ of habeas corpus is dismissed. Upon this judgment becoming final, the Juvenile Court of Shelby County shall be free to enforce its judgment. Costs in this cause are taxed to the petitioner, for which execution may issue, if necessary.

CRAWFORD and HIGHERS, JJ., concur.


author: LEWIS, Judge.

text:
    Michelle Randolph WAY, Plaintiff-Appellant, v. Lewis BOHANNON, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Jan. 11, 1985.
    Application for Permission to Appeal Denied by Supreme Court March 25, 1985.
    John Poteet, Cookeville, for plaintiff-appellant.
    Daniel H. Rader, III, Moore, Rader & Clift, P.C., Cookeville, for defendant-appel-lee.
   OPINION

LEWIS, Judge.

This is an appeal by plaintiff from the Trial Court’s granting defendant’s motion for a directed verdict at the close of plaintiff’s proof.

This case arises out of a collision between a cow and an automobile in Putnam County, Tennessee, on December 15, 1981. Plaintiff Michelle Randolph Way was a passenger in a car driven by her friend Randy Way. The couple was returning from a shopping trip to their home in Monterey along U.S. Highway 70N about five miles east of Cookeville when the accident occurred.

At the point where the accident occurred, the highway geographically divides a 1000 acre farm owned by the defendant. One of the defendant’s cows confined in a pasture on the south side of the road somehow broke through a fence enclosing the pasture and wandered onto the road. The Way automobile collided with the cow resulting in injury to plaintiff.

Plaintiff presents several issues for our consideration, only one of which is controlling.

Plaintiff contends that defendant was negligent for not properly tending to his livestock by allowing them to run at large on the public highway in violation of both statutory and common law. She argues that the accident came about as a result of such negligence and that it was the proximate cause of the injury received by her. She further insists that, given the testimony of the plaintiffs witnesses as to the history of defendant’s negligence, there was an issue which should have gone to the jury.

In support of her argument, plaintiff cites Higgins v. Vinson, 549 S.W.2d 161 (Tenn.App.1976), for the proposition that testimony relating to previous sightings of defendant’s cattle on the road suggests negligence sufficient to require the case to go to the jury. In Higgins, the plaintiff’s automobile collided with a horse belonging to the defendant on a highway adjacent to defendant’s farm. Witnesses at trial testified that they had seen the same horse or one similar to it crossing the road on previous occasions. The trial court granted defendant’s motion to dismiss, and we reversed. This Court stated that where proof was presented that the defendant’s horse had been seen on the highway on a number of occasions prior to the accident, the defendants should have known about the tendency and “were negligent in not enclosing their pasture with a suitable gate or fence which would prevent this horse ... from going out on the highway and, thus, becoming a hazard to motorists particularly at night.” 549 S.W.2d at 165. We further held that the plaintiff had “introduced sufficient proof to raise a jury question and that it was error on the part of the Trial Judge to direct a verdict....” Id.

Here, the plaintiff produced testimony from defendant’s neighbors and adjoining land owners who claimed to have seen cat-tie along the road on several occasions prior to the day of the accident.

We begin our consideration of plaintiff’s argument by reviewing the standard in Tennessee for determining negligence in these types of cases as summarized in Moon v. Johnston, 47 Tenn.App. 208, 337 S.W.2d 464 (1959), as follows:

It seems to be the rule in this State that where the owner of animals negligently allows them to run at large, he is liable for their resulting damages. But he is not liable if without his fault the animals have escaped from a pasture enclosed by a lawful fence or by an ordinary fence such as is generally required to restrain that kind of stock.
Moreover, negligence is never presumed from an accident alone, but must be proved by either direct or circumstantial evidence, or both. Nor is a jury permitted to speculate or guess as to the proximate cause of injury, but there must be evidence of a material and substantial nature from which negligence can be determined. Furthermore, under the “scintilla rule” as applied in our practice, a case does not have to be submitted to a jury where there is a mere spark or glimmer of evidence.
The rule is also well settled that where there is no evidence of actionable negligence, or where all the elements necessary to make out a prima facie case of actionable negligence are lacking, it becomes a question of law for the court and not an issue of fact for the jury.

47 Tenn.App. at 217, 337 S.W.2d at 469 (citations omitted).

There is no evidence in the record in this case to show that defendant’s fence was not “lawful ... or ... ordinary such as is generally required to restrain [this] kind of stock.” Furthermore, plaintiff did not even make such an assertion.

There is evidence, however, to indicate that this may have been the first time cattle had escaped from this side of defendant’s farm. The record reveals that in the fall of 1981, defendant moved his livestock from the north side of Highway 70 to a pasture 300 yards south of the road in a hollow on the rear portion of the farm. Plaintiff’s witnesses testified that they had seen cattle on the road on numerous occasions in 1981 and before. However, there was no proof that any cattle escaped from defendant’s new grazing pasture on the south side of the road after he made the move. In fact, some of the cattle sighted could not even be linked to defendant’s property at all.

This Court recently dealt with a similar situation in Wolaver v. Warren, — S.W.2d -(Tenn.App. at Nashville, filed July 31, 1984), where the defendant maintained two herds of cattle on separate farms, one of which he rented, and the other he owned. A .cow escaped from one of the farms and was hit by plaintiff’s vehicle. The plaintiff attempted to prove at trial that since cattle had escaped from the other farm on previous occasions, defendant, therefore, had the reputation for allowing his cattle to escape. We held that there was
no evidence of the reputation of defendant for allowing cattle to escape; and, if there were such evidence, it would not be evidence of negligence, for: negligence cannot be proved by evidence of character or of negligent acts on other occasions.

Wolaver, at-(citation omitted).

It is well recognized in Tennessee that “the owner of escaping animals is not absolutely liable for damages to another’s property but is only liable where he knowingly or negligently permits their escape or fails to recapture.” Trout v. Branham, 660 S.W.2d 502, 505 (Tenn.App.1983) (citing e.g., Overbey v. Poteat, 206 Tenn. 146, 332 S.W.2d 197 (I960)).

Plaintiff has produced no proof that defendant either knowingly or negligently permitted his cattle to escape from the pasture. Plaintiff failed to produce even a “spark or glimmer” of proof, much less the “material and substantial evidence from which negligence can be determined.” See Moon v. Johnston, 47 Tenn.App. 208, 218, 337 S.W.2d 464, 469 (1959).

Plaintiff has also set forth in her brief several other issues. In her argument, she does not even allude to those issues. Plaintiff, therefore, has completely failed to comply with Court of Appeals Rule 6(a). Notwithstanding the failure of plaintiff to comply with the rules of this Court, we have reviewed the record with these issues in mind and are of the opinion that each of them is without merit.

The judgment of the Trial Court is affirmed with costs assessed against the plaintiff and the cause remanded to the Trial Court for the collection of costs and any further necessary proceedings.

TODD, P.J., M.S., and CANTRELL, J., concur.

      . Tenn.Code Ann. § 44-8-101 states as follows:

        Livestock not to run at large — Punishment. —It shall be unlawful for the owners of any livestock, as the same are commonly known and defined, to willfully allow the same to run at large in this state. Any person found guilty of a violation of this section will be fined not less than five dollars ($5.00), nor more than twenty-five dollars ($25.00).


author: HIGHERS, Judge.

text:
    Hattie LITTLE, Appellant, v. Louis Alfred FRANCESCHINI, III, Appellee.
    Court of Appeals of Tennessee, Western Section at Jackson.
    Jan. 16, 1985.
    Permission to Appeal Denied by Supreme Court April 1, 1985.

      Leonard V. Hughes, Memphis, for appellant.
    Michael Richards, Memphis, for appellee.
   HIGHERS, Judge.

On October 20, 1981, the plaintiff, Hattie Little, was struck by an automobile driven by the defendant, Louis Alfred Franceschi-ni, III, and she filed suit for personal injuries on September 13, 1982. A docket entry was made in the office of the Circuit Court Clerk in Shelby County showing that there was personal service upon the defendant on September 16,1982. More than six months thereafter, the plaintiff learned that there had been no service and that there was, in fact, a return of “not to be found.” No additional process had been issued.

On February 20, 1984, the plaintiff entered a voluntary dismissal of the action. On that same date, the plaintiff filed a new complaint alleging the same cause of action. The defendant filed a motion to dismiss the plaintiff’s complaint for the reason that it was barred by the applicable one year statute of limitations pertaining to actions for personal injuries. The defendant relied upon Rule 3, T.R.Civ.P., and the plaintiff argued that the case was governed by the savings statute found at T.C.A. § 28-1-105.

Rule 3, T.R.Civ.P., reads as follows:
All civil actions are commenced by filing a complaint with the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be returned served or unserved; but if the process is not served or not returned within 30 days from issuance, regardless of the reason, plaintiff, if he wishes to rely upon the original commencement as a bar to the running of a statute of limitations, must either prosecute and continue the action by applying for and obtaining issuance of new process from time to time, each new process to be obtained within six months from the issuance of the previous one, or plaintiff must recommence the action within one year from issuance of the initial process not served or not returned within 30 days from issuance.

T.C.A. 28-1-105 states:

If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within (1) one year after the reversal or arrest.

Several things are clear from the facts of this case. It is clear that the original complaint filed on September 13, 1982, was timely filed as it was within the year following the accident of October 20, 1981. It is also clear that there was no service of process on the defendant and that no new process was issued within six months of the initial unserved process. The record shows that the plaintiff entered a voluntary non-suit on February 20, 1984, and that the complaint in the present case was filed on that same day. The complaint, therefore, was filed within one year of the dismissal of the plaintiffs action upon a ground not going to the merits of the case.

The plaintiff contends that the facts of this case are controlled by the savings statute and that, to the extent that the rule is in conflict with the statute, the statute must prevail. This issue has been settled, however, by such cases as Crosslin v. Alsup, 594 S.W.2d 379 (Tenn.1980) and Tennessee Department of Human Services v. Vaughn, 595 S.W.2d 62 (Tenn.1980). In Crosslin, the court stated: “The rules governing practice and procedure in the trial and appellate courts of Tennessee were promulgated by joint action of the General Assembly and the Supreme Court. They have the force and effect of law.” 594 S.W.2d at 880.

Both parties cite and rely upon the case of Adams v. Carter County Memorial Hospital, 548 S.W.2d 307 (Tenn.1977). In that case a wrongful death action was filed against the hospital and a physician. The complaint was filed on February 8, 1974, and served on the hospital on that same date. Service on the doctor, however, was not effected until August 14, 1974. The doctor moved to dismiss the action as to him on the basis that the plaintiff did not prosecute and continue the action as required by law and, therefore, that the service of process upon him on August 14, 1974, was ineffective, and that the statute of limitations had run. This motion was sustained by the trial judge. The Supreme Court held that the trial court was correct in quashing the service of process upon the defendant doctor, but that it was in error in holding that the statute of limitations had run. The Court stated that the efficacy of the summons terminated upon the expiration of thirty days next following its issuance on February 8, 1974. Rule 4.03, T.R.Civ.P. Relying upon Rule 3, T.R. Civ.P., the Court stated:

We hold that when the summons is not returned at the end of thirty days following its issuance, the plaintiff must apply for and obtain issuance of new process within six months, or recommence the action within one year, of the end of said thirty days period in order to preserve the original commencement of the action as a bar to the running of a statute of limitations.

548 S.W.2d at 309.

The Court further held in Adams that the trial court prematurely decided the issue relating to the statute of limitations. The Court said:

Plaintiff may timely recommence the action against defendant Frost by filing a new complaint anytime within one year of the entry of judgment of this court affirming the order of dismissal of the trial court. T.C.A. § 28-106 [now T.C.A. § 28-1-105]. This statute applies since the original action was timely filed and is being dismissed upon a ground not concluding the plaintiff’s right of action.

548 S.W.2d at 310.

The plaintiff in the present case contends that the voluntary dismissal on February 20, 1984, not being on the merits, allowed the plaintiff an additional year in which to refile. The facts here, however, are not parallel to those recited in the Adams case. Under Rule 3, T.R.Civ.P., the plaintiff is afforded two avenues through which to rely upon the original filing date as a bar to the running of the statute of limitations. These are (1) applying for and obtaining issuance of new process from time to time, each process to be obtained within six months from the issuance of the previous one, or (2) recommencing the action within one year from the issuance of the initial process which was not served or returned within thirty days from issuance. The plaintiff in this case did not pursue either avenue. First, the plaintiff did not issue new process, after the original process was not served or returned within thirty days from issuance, within the prescribed six months period. Second, the plaintiff did not recommence the action within one year from issuance of the initial unserved process. Therefore, the action was not “commenced within the time limited by a rule or statute of limitations,” and the savings statute is inapplicable to the facts of this case.

Although the plaintiff in the Adams case failed to issue new process within the six months period, there is nothing to suggest that the plaintiff was not still within the year from the date the original process died.

For the reasons stated, the judgment of the trial court is affirmed. Costs are adjudged against the plaintiff-appellant.

NEARN, P.J., W.S., and MATHERNE, Special Judge, concur.


author: FRANKS, Judge.

text:
    R.J. LEEPER, and wife, Mary Leeper, Plaintiffs-Appellants, v. Orville COOK, and wife, Pauline Cook, Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Jan. 18, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.

      Carl R. Ogle, Jr., Jefferson City, for plaintiffs-appellants.
    William 0. Foutch, Jr., of Capps, Foutch & Cantwell, Morristown, for defendants-ap-pellees.
   OPINION

FRANKS, Judge.

Plaintiffs’ suit to reacquire title to three lots in Blue Grass Hills Subdivision, purchased by defendants at a tax sale, was dismissed by the chancellor and, on appeal, plaintiffs insist they are entitled to the lots on the theories of either fraud and deceit or unjust enrichment.

Defendants sold the lots at issue in 1963 to James DeVotie and wife. That deed has not been recorded and, on February 12, 1965, the DeVoties sold the lots to plaintiffs, who did not record their deed until November 12, 1980.

A complaint to sell the lots for back taxes was filed in 1977, naming defendants as the owners of the properties. Defendant Cook was served with process on December 28, 1977. Cook did not answer the complaint but appeared at the tax sale ordered by the court and purchased the lots for $720.00 on June 30, 1978.

Cook testified he paid taxes on the lots from 1963 to 1970, all the while complaining to the officials at the courthouse but was unable to get his name as owner of the property removed from the tax rolls. He stated that on advice he quit paying taxes on the property after 1970. All of the foregoing is undisputed: the only significant dispute between the parties is plaintiff testified he advised Cook on one occasion that plaintiff owned some property that Cook once owned in the Blue Grass Subdivision. Defendant had no recollection of the conversation and testified that he did not know the true owner of the property at all times material to this dispute.

Plaintiffs insist that defendant, by remaining silent when served with process in the tax sales case, perpetrated a fraud on plaintiffs and profited by purchasing the three lots which plaintiff valued at $3,000.00 each for the above stated consideration.

We agree with the chancellor’s conclusion there was “no duty owed by Cook to Leeper”. The chancellor accepted the defendant’s testimony that he did not know how to contact DeVotie and could not advise him of the tax suit but had repeatedly advised the trustee, assessor and circuit court clerk that he did not own the subject property. The chancellor also credited defendant’s testimony that he did not know that plaintiffs owned the property.

The evidence does not establish fraud, the reason being, as the Supreme Court tersely observed: “The equitable doctrine of fraudulent concealment is based upon the principle of fair dealing. Where there is no dealing between the parties there can be no concealment.” The court further elaborated:

In 12 Ruling Case Law, p. 306, it is said: “As a general rule to constitute fraud by concealment or suppression of the truth there must be something more than mere silence, or a mere failure to disclose known facts. There must be a concealment, and the silence must amount to fraud. Concealment in this sense may consist in withholding information asked for, or in making use of some device to mislead, thus involving act and intention. The term generally infers also that the person is in some way called upon to make a disclosure. It may be said, therefore, that, in addition to a failure to disclose known facts, there must be some trick or contrivance intended to exclude suspicion and prevent inquiry, or else that there must be a legal or equitable duty resting on the party knowing such facts to disclose them.”

Patten v. Standard Oil Co., 165 Tenn. 438, 443, 55 S.W.2d 759 (1933).

Plaintiffs also seek to recover the property under the theory of “unjust enrichment”. They concede that a legal or equitable obligation is required to establish a basis for restitution and argue that an obligation to inform plaintiffs of the tax suit arose because plaintiffs are defendants’ successors in title and defendants were aware of plaintiffs’ ownership of the land prior to the tax sale (a tenuous conclusion). No authority is submitted to support this insistence. Accordingly, we conclude no obligation arose between the parties because there is no privity nor transactions between the parties establishing a basis for either a legal or equitable obligation the one to the other.

Plaintiffs’ failure to record their deed proximately resulted in the loss for which they seek equitable relief. Where a party’s remedy was “in his own hands” and he failed to protect his interest, as a general rule, neither a court of law nor equity will intervene on his behalf. See Granberry v. Jones et al., 188 Tenn. 51, 216 S.W.2d 721 (1949).

Plaintiffs sought a new trial on the grounds of newly discovered evidence and attached affidavits of plaintiffs’ attorney and William Marks, wherein Marks states he saw “two lote together in Strawberry Plains, Tennessee, which were for sale and called the number listed on the sign to inquire_” He contacted Mr. Cook and Cook advised he had an investment in the lots but didn’t actually own the lots. Cook indicated Mr. R.J. Leeper had the deed to them. He further stated that after the discussion he spoke to Leeper and advised him he had been referred by Mr. Cook.

Whether to grant a new trial based on newly discovered evidence is discretionary with the trial court. Seay v. City of Knoxville, 654 S.W.2d 397 (Tenn.App. 1983). The motion should only be granted when it is evident an injustice has been done and a new trial will change the result. Brown v. University Nursing Home, Inc., 496 S.W.2d 503 (Tenn.App.1972).

Several factors establish the chancellor properly exercised his discretion in overruling the motion for a new trial. The purported witness’s affidavit suggests the plaintiff was made aware of this event and a party, as well as his attorney, is required to exercise reasonable diligence in procuring evidence for the trial. Seay, supra. An abuse of discretion is not necessarily shown by refusing to grant a new trial based on newly discovered evidence which is merely cumulative and is for the purpose of discrediting the testimony of a witness. Johnson v. Woman’s Hospital, 527 S.W.2d 133 (Tenn.App.1975). Moreover, the chancellor, in overruling the motion, concluded the “new” evidence would ‘ have no effect on the result. Accordingly, we affirm the judgment and remand at appellants’ cost.

SANDERS and CANTRELL, JJ., concur.


author: DWYER, Judge.

text:
    STATE of Tennessee ex rel. Robert F. PRICE, Appellant, v. H.Q. EVATT, Sheriff of Hamilton County, Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, At Knoxville.
    Jan. 12, 1983.
    Permission to Appeal Dismissed by Supreme Court April 4, 1983.
    Jerry H. Summers, Chattanooga, for appellant.

      William M. Leech, Jr., Atty. Gen. & Reporter, Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, Stanley J. Lan-zo, Asst. Dist. Atty. Gen., Chattanooga, Buzz Franklin, Asst. Prosecutor, Lafayette, Ga., for appellee.
   OPINION

DWYER, Judge.

The trial court dismissed appellant’s petition for writ of habeas corpus after holding two hearings.

The appellant was arrested on a fugitive warrant, T.C.A. § 40-1003 (1975), after a warrant accusing him of murder had issued for his arrest in the State of Georgia. The appellant was accused in the State of Georgia of killing a Roger D. Norman around 12:01 to 1:00 a.m. July 8, 1981, in or near Trenton, Géorgia. The first habeas corpus hearing before the trial court was held on May 19, 1982, on the fugitive warrant that had issued for his arrest in this State. The second hearing was held on May 28, 1982, a rendition warrant having been issued by the Governor of this State on May 26, 1982. The trial court dismissed the petition for habeas corpus and ordered appellant delivered to the Georgia authorities.

The appellant raises four issues on appeal: (1) whether the trial court erred in denying petitioner’s writ of habeas corpus when the evidence introduced below showed petitioner was not in the State of Georgia on the date and at the time the murder petitioner is charged with committing in Georgia took place; (2) whether the trial court erred in requiring petitioner to rebut a prima facie presumption that he was in the State of Georgia when, at the time of the hearing below, the Governor of the State of Tennessee had issued no warrant to extradite petitioner to the State of Georgia; (3) whether the trial court erred in admitting evidence as to a possible conspiracy to commit murder in the State of Georgia; (4) whether the trial court erred in admitting into evidence testimony by Connie Holt Chambers relating to hearsay declarations of her ex-boyfriend, William Kilgore.

Upon the issuance of the Governor’s rendition warrant, judicial review by the trial court is limited to four issues. Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978): (a) whether the extradition documents are in order on their face; (b) whether the demanding state has charged the petitioner with a crime; (c) whether the person named in the request for extradition is the petitioner before the court; and (d) whether the petitioner is a fugitive. The only issue contested by appellant at the hearing was (d), that since he was not in Georgia at the time of the offense, he could not be a fugitive. The burden was therefore upon the appellant to prove beyond a reasonable doubt his non-presence. State v. Turner, 207 Tenn. 93, 96, 338 S.W.2d 558, 559 (1960).

We are unimpressed with the appellant’s argument that he was not required to prove beyond a reasonable doubt his absence from Georgia. While the hearing was initiated on the fugitive warrant, that document was only necessary to take appellant into custody pending arrival of the rendition warrant. Prior proceedings become immaterial when the rendition warrant arrives. State ex rel. Zahnd v. Head, 185 Tenn. 462, 464, 206 S.W.2d 426, 427 (1947); State ex rel. Van Scoyoc v. State, 171 Tenn. 357, 103 S.W.2d 26 (1937). In other words, the trial court could and did apply to the evidence adduced at both hearings the proper standard of beyond a reasonable doubt upon the arrival of the rendition warrant. How the State and appellant could reach an agreement to hold the Governor’s warrant in abeyance is questionable.

In dismissing the petition, the trial court held that the appellant had not proven by his evidence that he was not in Georgia at the time of the homicide and thus not involved in the crime. We will review the evidence adduced by both appellant and State at the hearings.

The appellant offered alibi proof through his wife, son, and work supervisor, a Mr. Swingle. The wife and son related that on the evening of July 7, 1981, the appellant was at home in Chattanooga and had dinner with them. The son testified that he called his father at his place of employment around 12:15 a.m. on the 8th of July and spoke with him over the telephone. The wife related that the appellant left home around 11:30 p.m. for work. Mr. Swingle testified that the appellant was at work on the dock on July 7 and that the appellant had told him that he could not find his time card. Mr. Swingle further related that while the time card showed appellant stamped in between 1:00 and 1:59 a.m., he, Mr. Swingle, had corrected the card to reflect appellant’s true arrival at work around midnight.

On cross-examination, the appellant’s wife testified that the appellant had left his job at the Robinson Freight Line in September 1981 and became the live-in bodyguard to Brenda Norman, wife of the decedent.

The State offered proof through a Connie Chambers, live-in girl friend of a Bill Kilgore who had been convicted in Georgia of the murder of Roger Norman. On July 5, 1981, Kilgore and Chambers had gone to a Tom Carden’s house where Kilgore had received money to kill a man and for a drug deal. They left Carden and went to a V.F.W. club where Kilgore put a rifle in the appellant’s van. She did not see the appellant there. She further related that around 6:00 p.m. on July 7, 1981, she saw Kilgore and the appellant in front of her house. The appellant left in his van and Kilgore soon left in the same direction. The next day she and Kilgore left for Florida. On the way back he told her, “Honey, all mighty hell is going to break loose.... Because we killed a man.” He told her the murder had occurred near Trenton, Georgia.

The State’s evidence also revealed that Kilgore was a co-worker and associate of the appellant, and that their place of employment was twenty to twenty-five minutes from Trenton, Georgia.

The evidence supports the trial court’s finding that appellant had not carried his burden as required and proven beyond a reasonable doubt that appellant was not in Georgia or not implicated in the murder. On page 115 of the transcript of the evidence, the trial court states:

“Counsel has stated the issues to be .. whether the defendant has proven beyond a reasonable doubt, on that standard the record falls short. The Court has considerable doubt on the time card, considerable doubt on several matters. I’m not persuaded as to the van, neither as to the tags or to the identity of the van and its color. The defendant’s proof has not risen to the standard set forth by counsel.”

Summed up, the trial court found that there was a question as to whether he was in the demanding state. State v. Turner, supra, 207 Tenn. at p. 97, 338 S.W.2d at 559. It cannot be said that the evidence showed clearly and satisfactorily appellant was not a fugitive from justice. State ex rel. Van Scoyoc v. State, supra. The first and second issues are overruled.

In regards to appellant’s third and fourth issues, the strict rules of evidence are not applicable in settings of this kind. The trial court could and did consider Connie Chambers Holt’s testimony and give it whatever probative force the court desired. McLaughlin v. State, 512 S.W.2d 657 (Tenn.Cr.App.1974). The evidence before the court was rather clear that Kilgore and appellant were conspiring to commit a murder. Whether appellant was charged by Georgia with conspiracy would not determine whether this evidence is to be ruled out. Randolph v. State, 570 S.W.2d 869 (Tenn.Cr.App.1978); Evans v. State, 557 S.W.2d 927 (Tenn.Cr.App.1977).

The issues overruled, the judgment of the trial court in dismissing the petition is affirmed.

CORNELIUS and SCOTT, JJ., concur.


author: RAY, Justice.

text:
    Jack K. JEANES et al, Petitioners, v. Cliff C. HENDERSON et al, Respondents.
    No. C-3130.
    Supreme Court of Texas.
    March 27, 1985.
    Rehearing Denied May 1, 1985.

      C. Wesley Jeanes, Richardson, for petitioners.
    Jones, Day, Reavis & Pogue, David J. White, Payne & Vendig, Lee D. Vendig and P. Talmage Boston, Dallas, for respondents.
   RAY, Justice.

This is an appeal from a lawsuit seeking declaratory relief and damages in conjunction with an oil and gas contract. At issue is the applicability of the doctrines of res judicata and collateral estoppel. The trial court rendered summary judgment for defendants, Cliff C. Henderson, Robert B. Stallworth, Jr. and their respective companies, on the grounds that this suit is barred and litigation of the issues is precluded by the res judicata and collateral estoppel effects of a prior federal court judgment involving the same contract. In an unpublished opinion, Tex.R.Civ.P. 452, the court of appeals affirmed the judgment of the trial court. We affirm in part the judgment of the court of appeals, and we reverse and remand in part.

This cause is the result of a lawsuit filed by Omajeanne Lokey Mitchell against all the parties to this appeal and others to determine her royalty rights under certain oil and gas leases. After Mitchell took a nonsuit, this cause continued from a cross-action by Jack K. Jeanes and J.K.J. Corporation (Jeanes) against Cliff Henderson and Cliff C. Henderson, Ltd., Inc. (Henderson) and Robert B. Stallworth, Jr. and Stall-worth Oil and Gas, Inc. (Stallworth). Presently, Jeanes seeks: (1) a declaratory judgment that the three options to a 1971 Investment Contract are binding on Henderson; (2) a declaratory judgment that these options are covenants running with the land and thus, are binding on Stallworth; and (3) damages against Stallworth for tor-tious interference with the 1971 Investment Contract and a subsequent Jeanes-Hender-son oral development agreement, and for malicious interference with a prospective Jeanes-Henderson business relationship.

In 1971, Henderson and his company, Marilon Minerals, Inc. (Marilon), were producing gas in Parker and Hood Counties on the “Lokey-Cartwright" oil and gas leases pursuant to a farm-out agreement. When the purchaser of their gas offered to pay a higher price for the gas in exchange for the drilling of five additional wells on the leases, Henderson and Marilon agreed to drill these wells. Henderson and Marilon solicited Jeanes to help finance this project and in December 1971, these parties entered into an investment contract. Under this 1971 Investment Contract, Jeanes paid Henderson and Marilon $45,000 in exchange for a Vsths working interest in both the wells and the 320 acres surrounding each well. This 1971 Investment Contract also included three options which are the center of the declaratory judgment portion of this lawsuit.

Shortly thereafter, Henderson and Mari-lon drilled the wells, obtained production and assigned a %ths working interest to Jeanes. In fact, these wells continue to produce today and Jeanes still receives the proceeds from his working interest. In July 1980, Henderson and Marilon conveyed and warranted 77½ percent of their working interest in the undeveloped portions of the Lokey-Cartwright leases to Stallworth. Jeanes responded in September 1981 by filing suit against Henderson and Marilon in the federal court for the Northern District of Texas contending that the sale to Stallworth interfered with his rights under the 1971 Investment Contract. Since no diversity of citizenship existed between the parties, Jeanes obtained federal question jurisdiction in the federal court by alleging that this sale violated section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) (1981) and Rule 10b-5, 17 C.F.R. § 10b-5 (1981). In addition to the federal claim, Jeanes asserted five state-related claims arising out of the July 1980 transaction: (1) a violation of the Texas Securities Laws under Tex.Rev.Civ. Stat.Ann. article 581-33 (Vernon 1985); (2) common law fraud and statutory fraud under Tex.Bus & Comm.Code Ann. § 27.01 (Vernon 1968 and Vernon Supp.1985); (3) slander of title; (4) breach of fiduciary duty; and (5) breach of contract and warranty.

The district court, exercising pendent jurisdiction over the state-related claims, adjudicated the entire action brought by Je-anes. That court directed verdicts against Jeanes on the alleged securities laws violations as well as the first four of Jeanes’ state-related claims. Only the breach of contract and warranty claim survived the directed verdicts and that claim was decided against Jeanes based on jury findings. Accordingly, the federal district court rendered a take-nothing judgment against Je-anes and on appeal, the Fifth Circuit affirmed. Jeanes v. Henderson, 703 F.2d 855 (5th Cir.1983).

THE DECLARATORY JUDGMENT ACTIONS

With respect to his requests for separate declaratory judgments against Henderson and Stallworth, Jeanes argues that he is entitled to these judgments as a matter of law. Henderson and Stallworth both respond that res judicata bars and collateral estoppel precludes Jeanes from asserting these claims and litigating the accompanying issues. The effect of the prior federal court judgment on the present cause must be examined in terms of res judicata first, and then if necessary, collateral es-toppel. While courts are prone to confuse these two doctrines and use them interchangeably, Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984), it is important to distinguish the two and consider them separately because a ruling that res judicata bars these claims will eliminate our need to analyze collateral estoppel. Res judicata, or claim preclusion, involves the dual principles of merger and bar. On the one hand, if a plaintiff prevails in a lawsuit, his cause of action merges into the judgment and the cause of action dissolves. See Westinghouse Credit Corp. v. , 496 S.W.2d 531, 532 (Tex.1973); Restatement (Second) of Judgments § 18 (1982). • On the other hand, if the defendant wins the original suit, the plaintiff is barred from bringing another action on claims actually litigated and also on claims that could have been litigated in the original cause of action. See Texas Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.1979); Restatement (Second) of Judgments §§ 19, 24(2) (1982). Thus, res judicata prevents a plaintiff from “splitting” his cause of action and subsequently asserting claims that could have been litigated in the first instance.

Henderson and Stallworth argue that since Jeanes could have pursued the declaratory judgment claims in the federal court, this lawsuit constitutes a “splitting” of his overall cause of action and should be barred. Jeanes counters that the current lawsuit involves a different cause of action than the federal court litigation, so res judicata does not apply. See Griffin v. Holiday Inns of America, 496 S.W.2d 535, 538 (Tex.1973). Jeanes also argues that it would have been useless to seek declaratory relief in the original suit because it is state-related and there is no way to be certain that the federal court would have exercised its discretion to take pendent jurisdiction over this matter. We agree with Henderson and Stallworth.

Even though the original lawsuit involved both federal and state-related claims, the fact that it took place in federal court requires us to follow the federal law of res judicata. Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 373 (5th Cir.1980); Restatement (Second) of Judgments § 87 (1982). When considering whether subsequent claims are based on the same cause of action as a prior lawsuit, the Fifth Circuit employs the “primary right” test. Kemp v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir.1979). Under this test, “if the primary right and duty and the delict or wrong are the same in each action, the cause of action is the same.” Hall v. Tower Land & Investment Co., 512 F.2d 481, 483 (5th Cir.1975). In these two suits, Jeanes first sought and now seeks to assert his rights under the 1971 Investment Contract in response to the 1980 transaction between Henderson and Stallworth. As Jeanes admits in a reply brief before this court: “[a]t best all that can be said is that Jeanes previously sued upon the wrong theory. Instead of suing Henderson for breach and damages, he should have sued Stallworth for title.” Thus, only Jeanes’ theory of recovery has changed and that does not give rise to a new cause of action. See Carr v. United States, 507 F.2d 191, 193 (5th Cir.1975); Reed v. Marketing Serv. Int’l Ltd., 540 F.Supp. 893, 898 (S.D.Tex.1982). Consequently, under the “primary right” test, it is clear that Jeanes’ present suit for declaratory judgments involves the same cause of action as the federal court litigation.

Jeanes’ argument that it would have been useless to seek declaratory relief during the original federal lawsuit concedes, and an examination of the record confirms, that he did not even attempt to assert these claims at that time. However, Jeanes could have amended his pleadings to include the declaratory relief he now seeks against Henderson and also he could have joined Stallworth and pleaded his current request for a declaratory judgment against him. The fact that Jeanes’ declaratory judgment actions are based on Texas law presents this court with an unusual situation for considering res judicata. Here, we must ascertain the consequences of the subsequent assertion of omitted state-related claims from a federal court action. Section 25, comment (e) of the Restatement (Second) of Judgments (1982) instructs a state court to decide: (1) whether the federal court possessed jurisdiction over the omitted state claim, and if so, then (2) whether the federal court would clearly have declined the exercise of that jurisdiction as a matter of discretion. If the federal court would have had jurisdiction over the second action and would have exercised its discretion to entertain that action, then the Restatement (Second) dictates that the second action be barred.

Whether the federal court would have had jurisdiction to hear the declaratory judgment actions is contingent upon the federal claim being of sufficient substance to confer pendent subject matter jurisdiction on that court. See United Mine Workers v. Gibbs 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Since the pertinent federal claim would be the same federal securities laws action that the federal court actually heard and adjudicated, the federal court clearly had jurisdiction to consider the present request for declaratory relief. The second step of the Restatement (Second) formula, whether the federal court would have declined to exercise this jurisdiction as a matter of discretion, is more difficult. For this reason, we will separately consider Jeanes’ requests for declaratory judgments against Henderson and Stallworth.

With respect to Jeanes’ action for declaratory relief against Henderson, we are certain that the federal court would have exercised its discretion to take pendent jurisdiction over this claim. As noted, that court actually adjudicated all the pendent state-related claims brought by Jeanes against Henderson. Thus, there is no reason that the federal court would clearly have declined to exercise its discretion to take pendent jurisdiction over and decide this claim. Consequently, we hold that res judicata bars Jeanes from pursuing his declaratory judgment action against Henderson.

In regards to his action against Stall-worth, Jeanes argues that he was under no procedural obligation to join Stallworth in the federal court litigation. Res judicata, however, can impose procedural obligations on litigants that do not otherwise exist under the rules of procedure. As mentioned, the federal court would have had jurisdiction over this matter by virtue of Jeanes’ federal securities laws action against Henderson. Deciding whether the federal court would clearly have declined to exercise its discretion to take jurisdiction over this claim, however, raises different questions than Jeanes’ claim against Henderson.

If Jeanes had joined Stallworth in the federal court action and asserted his current request for declaratory relief at that time, Stallworth’s status would have been that of a pendent party. The doctrine of pendent party jurisdiction allows a federal court, in a non-diversity case, to adjudicate a state-related claim against a third party who is not otherwise involved in any federal claim. See Florida East Coast Ry. Co. v. United States, 519 F.2d 1184, 1193-96 (5th Cir.1975). While we recognize that a federal court is not always free to take jurisdiction over a state-related claim against a pendent party, see Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), the assertion of pendent party jurisdiction is most compelling where the federal court maintains exclusive jurisdiction over the underlying federal claim. See Boudreaux v. Puckett, 611 F.2d 1028, 1031 (5th Cir.1980); Dick Meyers Towing Serv., Inc. v. United States, 577 F.2d 1023, 1024 (5th Cir.1978). Since Jeanes’ federal securities laws action was within the exclusive jurisdiction of the federal court, 15 U.S.C. § 78aa (1981), the assertion of his declaratory judgment claim against Stallworth would have presented the federal court with the classic situation for exerting pendent party jurisdiction. Thus, the federal court would not clearly have declined to exercise its discretion to adjudicate Jeanes’ declaratory judgment action against Stallworth.

Traditionally, only parties and their privies were entitled to the benefits of res judicata. See, e.g., Cromwell v. County of Sac, 4 OTTO 351, 352, 94 U.S. 351, 352, 24 L.Ed. 195 (1876). The elusiveness of the privity concept, however, has led the Fifth Circuit to abandon this requirement and instead analyze the relationship between the party involved in the initial litigation and the non-party to that action who seeks to take advantage of res judicata. Southwest Airlines Co. v. Texas Int’l Airlines, Inc., 546 F.2d 84, 95 (5th Cir.1977). As a leading authority states, “[o]nce it is concluded that [res judicata] is asserted against a person who properly may be bound by the judgment, the inquiry shifts to ask whether there is some special reason for denying its benefits to a non-party.” 18 C. Wright, A. Miller and E. Cooper, Federal Practice & Procedure § 4448 at 410 (1981).

In this cause, Henderson and Stall-worth possess a concurrent working interest in the undeveloped portions of the Lo-key-Cartwright leases, with Stallworth’s interest warranted by Henderson. Because of the warranty, Stallworth is entitled to take advantage of the res judicata benefits that inure to Henderson from the prior judgment. See Gilman v. Osborn, 78 N.M. 498, 433 P.2d 83, 85 (1967); 46 Am.Jur.2d Judgments § 533 (1969); A. Freeman, Freeman on Judgments § 441 (5th ed. 1925). Furthermore, the res judicata policy considerations of promoting judicial economy, preventing vexatious litigation and avoiding inconsistent results, see Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979), would be frustrated by allowing Jeanes to proceed against Stallworth. Thus, after analyzing the Henderson-Stallworth relationship, we find no reason for denying the res judicata benefits of the prior federal court action to Stallworth. Consequently, we hold that Jeanes is barred from pursuing his declaratory judgment action against Stallworth.

THE INTERFERENCE CLAIMS

In this part of the cause, Jeanes seeks damages from Stallworth for tortious inter-' ference with the 1971 Investment Contract and a subsequent Jeanes-Henderson oral development agreement, and for malicious interference with a prospective Jeanes-Hen-derson business relationship. According to Jeanes, shortly after the execution of the 1971 Investment Contract, he and Henderson entered into an oral agreement to further develop the Lokey-Cartwright leases. Also, Jeanes contends that the potential for an additional business relationship existed between Henderson and himself with respect to this future development. Jeanes complains that Stallworth’s on-going conduct concerning the Lokey-Cartwright leases interfered with these contracts and this prospective business relationship. The courts below, however, refused to consider these claims. The court of appeals reasoned that the res judicata effects of the federal court judgment barred Jeanes from asserting these claims.

As discussed previously, the scope of the federal court cause of action is determined by the “primary right” test. See Kemp v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir.1979). By applying this test to Jeanes’ claim that Stall-worth tortiously interfered with the 1971 Investment Contract, we find that this claim is part of the original federal cause of action. Here, Jeanes’ rights stem from the 1971 Investment Contract and the wrong results from the 1980 transaction between Henderson and Stallworth. As with the declaratory judgment actions, we find no reason to deny the res judicata benefits of the federal court action to Stall-worth. Consequently, we hold that Jeanes is barred from asserting his claim that Stallworth tortiously interfered with the 1971 Investment Contract. Jeanes’ remaining interference claims, however, are different matters. These claims are separate and distinct from the federal cause of action because Jeanes’ rights in these claims do not ensue from the 1971 Investment Contract. Since they constitute a different cause of action, the court of appeals erred in utilizing res judicata to bar these claims.

Stallworth also argues that collateral estoppel precludes Jeanes’ from asserting the remaining interference claims because the federal court necessarily decided that Stallworth was legally justified in his actions. We disagree. Collateral estoppel, or issue preclusion, prevents a party from relitigating a fact issue in a subsequent lawsuit, when the fact issue already was fully and finally litigated and was essential to the judgment in a prior litigation. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 362 (Tex.1971); Restatement (Second) of Judgments § 27 (1982). The federal court litigation only construed the 1971 Investment Contract from the standpoint of Jeanes’ six claims against Henderson. The remaining interference claims, however, concern a separate agreement between Jeanes and Henderson and a prospective business relationship distinct from the relationship created under the 1971 Investment Contract. Thus, the pertinent fact issues were not previously litigated and collateral estoppel has no application.

Finally, Stallworth maintains that the summary judgment evidence proves as a matter of law that he is free from liability on the remaining interference claims. Here, Stallworth bears the burden of demonstrating that the summary judgment evidence conclusively disproves at least one element of each of the remaining claims. See Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 537 (Tex.1975). While Jeanes’ summary judgment evidence raises fact issues on these claims, the summary judgment evidence tendered by Stallworth does not address them. Thus, the summary judgment evidence does not conclusively disprove any of the elements on the remaining interference claims.

In summary, we hold that res judicata bars Jeanes’ actions for declaratory relief against Henderson and Stallworth and Je-anes’ action against Stallworth for tortious interference with the 1971 Investment Contract. With respect to Jeanes’ actions against Stallworth for tortious interference with the Jeanes-Henderson oral development agreement and for malicious interference with a prospective Jeanes-Henderson business relationship, we hold that res judi-cata and collateral estoppel do not apply and that fact issues exist on these claims. Accordingly, except for Jeanes’ interference claims not affected by res judicata, we affirm the judgment of the court of appeals. Concerning the remaining interference claims, we reverse the judgment of the court of appeals and remand that part of the cause to the trial court for a trial on the merits.

      . With respect to these options, the 1971 Investment Contract provided:
      Party of the First Part [Henderson and Mari-lon] will give Party of the Second Part [Je-anes] the "Option" to partake in any future Drilling and Exploration that said Party of the First Part might undertake in and around the Leases owned by Party of the First Part.... Party of the Second Part will also have the "Option” to purchase any existing Producing Leases, not presently owned by Party of the First Part, that said Party of the First Part might purchase.... Party of the First Part also agrees to give Party of the Second Part a 30 day Option to purchase all of his Interest should he ever decide to sell his Interest.

      . The doctrine of pendent jurisdiction allows a • federal court to adjudicate state-related claims along with a federal claim when:
      the relationship between [the federal] claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case.” The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. [Citation omitted.] The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal and state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.
        United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966) (emphasis in original).

      . Marilon sold its share of the working interest to Henderson and is not involved in the present action.

      . Restatement (Second) of Judgments § 25, comment (e) (1982) provides:
      A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should be held not precluded.

      . In this part of the cause, Jeanes only seeks declaratory judgments. Thus, assuming the validity of Jeanes’ arguments, no liability on the part of Henderson or Stallworth will accrue until a breach of the options takes place. If we allow Jeanes to proceed against Stallworth and Jeanes prevails, due process would prevent Je-anes from asserting that judgment against Henderson. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Consequently, upon a breach, Jeanes would still have to prove in a subsequent trial that the options are binding on Henderson. If that litigation were to be decided against Jeanes, the judgment in that case would conflict with the judgment against Stallworth.

      . We note that this ruling does not bar Jeanes from suing Henderson and Stallworth if and when a breach of an option occurs, because a breach action would not be a part of the original cause of action. In the event of an action for breach, the court that adjudicates that lawsuit can determine the collateral estoppel effects of the federal court litigation.


author: ROBERTSON, Justice. HILL, Chief Justice,

text:
    Walter JOHNSON et ux, Petitioners, v. The SECOND INJURY FUND of the State of Texas, Respondent.
    No. C-3617.
    Supreme Court of Texas.
    April 10, 1985.
    Bean, Francis, Wills and Street, Dan Street, Dallas, Tex., for petitioner.
    Jim Mattox, Atty. Gen., Philip Durst, Asst. Atty. Gen., Austin, Tex., for respondent.
   ROBERTSON, Justice.

The question presented for review is whether the Second Injury Fund is subro-gated to the rights of Walter Johnson in his personal injury suit against a third party. The trial court denied subrogation. The court of appeals reversed and remanded, with one judge dissenting. 678 S.W.2d 225. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

In the course of his employment, Walter Johnson suffered an injury resulting in the loss of vision in his left eye. He had previously lost the vision in his right eye. The cumulative effect of the two injuries thus left him totally and permanently disabled. He received benefits from Texas Employer’s Insurance Association and the Second Injury Fund.

Johnson and his wife then sued Texas Industries, Inc., alleging that Texas Industries had negligently caused the loss of vision in his left eye. TEIA and the Second Injury Fund intervened, alleging that they were subrogated to the rights of the John-sons in their suit against Texas Industries. Texas Industries agreed to a cash settlement and an annuity for the Johnsons. Texas Industries also agreed to reimburse TEIA for the benefits it had paid to Johnson. The agreed judgment did not, however, settle the Fund’s claim to subrogation.

The Second Injury Fund in this cause seeks to establish a right of subrogation in order to increase monies flowing into that fund. The court of appeals held that a subrogation right exists, placing primary reliance on the decisions of Industrial Accident Bd. v. Parker, 348 S.W.2d 188 (Tex. Civ.App. — Texarkana 1960, writ ref’d n.r. e.), and this court’s decision in Industrial Accident Bd. v. Guidry, 162 Tex. 160, 345 S.W.2d 509 (1961). The gist of the lower court’s holding was that since the portion of the workers’ compensation statutes creating the Second Injury Fund is silent on the question of subrogation, the statute should be read in pari materia with the remaining compensation statutes, with the result that the Second Injury Fund becomes an “insurance company” or “association,” with an accompanying statutory right to subrogation.

The Guidry and Parker decisions are inapplicable for at least two reasons. First, unlike the requirements of notice and appeal dealt with in Guidry and Parker, the instant cause addresses the issue of subrogation, a historically limited right in Texas workers’ compensation law. Texas courts construing the workers’ compensation statutes have held that subrogation is entirely a creature of the legislature, and that the right does not exist except when clearly mandated by the legislature. See, e.g., Fidelity Union Casualty Co., et al. v. Texas Power & Light Co., 35 S.W.2d 782 (Tex.Civ.App. — Dallas 1931, writ ref’d); Aetna Life Ins. Co. v. Otis Elevator Co., 204 S.W. 376 (Tex.Civ.App. — 1918, writ ref’d). The legislature has not explicitly created any right of subrogation for the Second Injury Fund, yet the court of appeals created one by implication.

Second, the Guidry court placed primary and repeated reliance upon the fact that the Second Injury Fund statute was silent on the question of notice. The statute, however, is by no means silent on the question of how monies shall be obtained for operation of the Fund. Tex.Rev.Civ.Stat. Ann. art. 8306 § 12c-2 (Vernon Supp.1985) provides, in relevant part:

“The special fund known as the ‘Second Injury Fund’ shall be created in the following manner:
(a) In every case of the death of an employee under this Act where there is no person entitled to compensation surviving said employee, the association shall pay to the Industrial Accident Board the full death benefits, but not to exceed 360 weeks of compensation ... to be deposited with the Treasurer of the State for the benefit of said Fund and the Board shall direct the distribution thereof.”

(Emphasis added.)

The legal maxim Expressio unius est exclusio alterius is an accepted rule of statutory construction in this state. In State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238 (1943), this court held that “it is a settled rule that the express mention or enumeration of one person, thing, consequence or class is equivalent to an express exclusion of all others.” 175 S.W.2d at 241. Similarly, as was recognized in Bryan v. Sundberg, 5 Tex. 418, 422-23 (1849):

“[W]hen the Legislature have undertaken to enumerate what shall be received, the enumeration must, we think, be taken to include all that was intended, and consequently to exclude all that is not included in the enumeration .... ‘And where a statute limits a thing to be done in a particular form it includes in itself a negative, viz, that it shall not be done otherwise.’ ”

See also Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652 (1923). Thus, since the statute clearly mandates that the Second Injury Fund shall be funded only by the collection of unclaimed death benefits, it would be inappropriate for this court to add a second method not countenanced by statute — that the Second Injury Fund can collect a portion of a tort recovery from a living but totally disabled worker.

Moreover, the legislature has a clear history of diligence and vigilance in controlling the amount of money in the Second Injury Fund, and the means by which that money shall enter the Fund. Since enactment of the Second Injury Fund in 1947, section 12c-2 has been amended four times, each time with the clear intent of increasing the total amount of money available to the Fund. See Acts 1983, 68th Leg., Ch. 994 § 1; Acts 1979, 66th Leg., Ch. 639 § 1; Acts 1971, 62nd Leg., Ch. 316 § 3; Acts 1969, 61st Leg., Ch. 18 § 8. The legislature could, at any time, have provided an alternative funding source for the Second Injury Fund, through the mechanism of subrogation, but chose not to do so. Other means of funding have indeed been implemented in some states. See 2 A. Larson, The Law of Workmen’s Compensation § 59.31(b) (1983). Yet, although the relevant portion of the statute has been amended several times, the Texas Legislature has declined to add additional funding mechanisms, such as subrogation.

The court of appeals relied upon the conclusion in Industrial Accident Bd. v. Parker that the Second Injury Fund is generally viewed as an “insurance company” for purposes of construing the compensation statutes. That decision, however, contains a caveat:

“It is the legislative intention that the Second Injury Fund stand as the compensation insurer in Second Injury cases so far as a just and harmonious interpretation of the numerous provisions of the compensation law will permit. However, this does not mean that a substitution was intended ... where to substitute would result in a conflict or hiatus in provisions, or a nullification of the purposes of the Compensation Law.”

348 S.W.2d at 192 (emphasis added). In the case at bar considering the Second Injury Fund to be an insurance company would create both disharmony and hiatus by reading an implied source of funding into the statute, where none exists.

The Texas Legislature has mandated the method by which the Second Injury Fund shall be financed. We are urged to consider the benefits of creating an additional source of funding, so that at some future time the Second Injury Fund is not depleted. This court has previously declined to recognize a right of action against the Fund when that right was not spelled out by statute; it would be equally inappropriate now to imply such a right in favor of the Fund. See Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711 (1961).

The judgment of the court of appeals is reversed, and that of the trial court is affirmed.

HILL, C.J., files a dissenting opinion in which CAMPBELL and GONZALEZ, JJ., join.

HILL, Chief Justice,

dissenting.

I respectfully dissent. The constraints of stare decisis prevent my joining the majority. The outcome of this case is controlled by a prior decision of this court, Industrial Accident Board v. Guidry, 162 Tex. 160, 345 S.W.2d 509 (1961). In that case this court forthrightly stated:

By placing the Second Injury Fund Sections, supra, into the Workmen’s Compensation Act and by remaining silent as to the manner in which a claim against the Second Injury Fund is to be perfected and considered, the legislature undoubtedly intended that the established procedure of administrative disposition by the Board, and all pertinent provisions of the Act for that matter, be equally applicable to a claim against the Second Injury Fund as they are applicable to claims against insurance carriers. A proceeding by a claimant against the Second Injury Fund does not differ materially from a proceeding by a claimant against the insurance carrier.

Id. at 512 [Emphasis theirs]. See also State v. Bleeker, 348 S.W.2d 639 (Tex.Civ. App. — Eastland 1961, writ ref d). The majority’s reliance on Industrial Accident Board v. Parker, 348 S.W.2d 188 (Tex.Civ. App. — Texarkana 1960, writ ref’d n.r.e.), for the proposition that a caveat to the in pari materia reading of the Workers’ Compensation Act exists is misplaced. Parker, decided a year before Guidry, is a court of appeals opinion dealing with the same question as Guidry which contained no caveat. When this court writes on any issue, its opinion and not a court of appeals opinion represents the law of the state.

The Workers’ Compensation Act provides that the “association shall be subrogated to the rights of the injured employee” when the employee claims compensation benefits and additionally pursues an action against a third party. TEX.REV.CIV.STAT.ANN. art. 8307, § 6a (Vernon Supp.1985). “Association” is defined as “Texas Employers’ Insurance Association or other insurance company authorized under this Act to insure the payment of compensation to injured employees or to the beneficiaries of deceased employees.” Id. at 8309, § 1 (Vernon 1967). In construing the Workers’ Compensation Act in pari materia, as we must, and in light of our decision in Industrial Accident Board v. Guidry, I would hold that the legislature intended that the Fund be entitled to the same statutory subrogation rights as private insurance carriers. In a subrogation proceeding, the Fund acts in the capacity of an insurance carrier; it “is entitled to the same protection and privileges which the legislature has given insurance carriers.” Guidry. See also COUCH ON INSURANCE 2d (Rev. ed.) § 61:418 (1983) (subrogation right extends beyond insurance carrier to any agency- which makes payment to the injured employee).

The majority attempts to distinguish this case from the Guidry line by its conclusion that the Second Injury Fund provisions of the Workers’ Compensation Act are silent on notice and filing requirements while the statute specifically provides for the Fund’s method of funding. The majority embarks on a tortuous path in pursuing this misper-ceived distinction and in treating this as a funding case instead of a subrogation case. This novel approach avoids the only true issue in the case: whether the Fund is entitled to the privileges of subrogation as set out in the Workers’ Compensation statute. This case is simply not a funding case, it is a “compensation recoupment suit.” Myers v. Thomas, 143 Tex. 503, 186 S.W.2d 811, 812 (1945) (emphasis added). Guidry did not hold that all provisions except those effecting funding be equally applicable to a claim against the Second Injury Fund. The Guidry court italicized all to underscore and emphasize its holding that each and every pertinent provision of the Workers’ Compensation Act was to be equally applicable to a claim against the Second Injury Fund.

Funding of the Second Injury Fund involves the influx of new monies into the Fund’s operating revenue by statutory mandate. In our state, as in most, this is achieved by requiring insurance carriers to deposit unpaid death benefits into the Second Injury Fund. TEX.REV.CIV.STAT. ANN. art. 8306 § 12c-2 (Vernon Supp. 1985). Other states maintain their Second Injury Funds by special appropriations or a small percentage assessment against insurance carriers. See Larson, The Law of Workman’s Compensation § 59.31(b) (1983). In contrast, however, subrogation involves a regenerative process; old monies are recycled through the system when an injured worker, such as Johnson, recovers from a third party tortfeasor. The majority’s “funding” analysis is but a straw man.

The Second Injury Fund provisions, including the funding provision, were en-grafted onto the Workers’ Compensation Act which contained a statutory right of subrogation. With a workable statutory framework in place to compensate injured employees, it would have been ludicrous to have required the legislature to specifically insert each cog of that framework into the Second Injury Fund provisions when they were added to the Workers’ Compensation Act. This court refused to adopt that type of statutory construction in Guidry, and we should reject it here.

The majority opinion also ignores the history and purpose of the Second Injury Fund. Originally, the Workers’ Compensation Act allowed an employee, rendered totally and permanently disabled by successive injuries, recovery from the insurance carrier for the second injury only; he was denied any recovery for total and permanent disability. Acts 1917, 35th Leg., p. 269. The purpose of limiting recovery to the second injury was to encourage the employment of the physically handicapped by keeping premiums down. Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671, 672 (1950); Gilmore v. Lumberman’s Reciprocal Ass’n, 292 S.W. 204, 206 (Comm’n App., judgm’t adopted 1927); see also Larson at § 59.31(a).

Thirty years later, the legislature amended the Act to create the Second Injury Fund to compensate previously handicapped workers for the difference between recovery for the second injury, which is the carrier’s obligation, and recovery for permanent and total disability. Acts 1947, 50th Leg., p. 690, ch. 349, § 1. This Fund was created “to facilitate the employment of handicapped persons including a large number of returning veterans through the establishment of a Special Fund out of which such persons may be compensated when they sustain a subsequent injury.” Id. at § 2.

In Miears v. Industrial Accident Board, at 673, this court said:

In spite of the soundness of the reasoning behind the provisions of Section 12c, it is obvious that in cases to which it applied before the 1947 amendment the employee who was totally and permanently disabled as a result of the combined effect of successive injuries received less compensation than would otherwise be awarded for total and permanent disability. As a means of obviating the inequality of treatment resulting from such statutes, it was urged that “second-injury funds’’ should be created out of which additional compensation could be paid to such employees. [Emphasis added.]

There is no indication that the legislature intended to give workers who become totally and permanently disabled by successive injuries more benefits than workers who are totally and permanently disabled by a single injury. The overwhelming indication is to the contrary, that is the legislature intended to put previously handicapped workers on equal footing with workers who had no prior disability.

Far from creating consonance in the Act, the majority’s opinion will result in “disharmony and hiatus.” It will allow the worker who becomes totally and permanently disabled as a result of successive injuries to retain the amount he receives from the Second Injury Fund even when he recovers from a third-party tortfeasor. But, this same worker will have to reimburse the insurance carrier for the payment the carrier has made to him for the second injury. Moreover, the worker who becomes totally and permanently disabled as a result of a single injury will have to reimburse the insurance carrier for all of the payments made to him.

Under the result I would reach, Johnson would have to reimburse the Second Injury-Fund for the $30,499.43 it paid to him, just as he would if he had received this money from a private insurance carrier. Johnson, however, would be left with his settlement with Texas Industries which gave him $162,500 in cash plus an annuity of $750 per month for life and required Texas Industries to reimburse the Texas Employer’s Insurance Association for the benefits it had paid to Johnson for the second injury-

In this case the law is plain and unambiguous; insurance carriers are given the right to subrogation and, in light of Gui-dry and the history and purpose of the Fund, and a reasonable reading of the statute as a whole, the right extends to the Second Injury Fund. Any other result frustrates the legislative purpose, and I, therefore, respectfully dissent.

CAMPBELL and GONZALEZ, JJ., join in this dissent.