author: ELLIS, Justice.

text:
    GLOBAL TRUCK & EQUIPMENT, INC., Appellant, v. Rodolfo PLASCHINSKI and Napoleon Ochoa Anaya, Appellees.
    No. B14-84-226-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 1984.
    J. Patrick Coulson, W.J. Coulson, Jr. & Associates, Houston, for appellant.
    Mark D. Wilson, Wesley & Wilson, Houston, for appellees.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is a writ of error proceeding. Appellant, Global Truck & Equipment, Inc., a Texas corporation, attacks the default judgment entered against it on five grounds. We reverse.

In points of error one, two, and three appellant claims that the trial court erred in rendering a default judgment because the recitals and statements found in the certificate of the Secretary of State do not establish the fact of valid issuance and return of citation on appellant, the record fails to disclose an address of appellant’s registered office, and the record fails to disclose that appellant’s registered agent could not with reasonable diligence be found a., a registered office. In points of error four and five appellant claims that the trial court erred in not granting his motion for new trial because appellee’s failure to attempt service on appellant at an address where appellees knew appellant could be found violated appellant’s due process of law under the Fourteenth Amendment of the United States Constitution and appellant had a meritorious defense and its failure to answer was not intentional or the result of conscious indifference but was due to accident or mistake. We will reverse upon the basis of appellants’ first three contentions, and it will therefore be unnecessary to consider the other contentions.

On March 30, 1983, appellees, Rodolfo Plaschinski and Napoleon Ochoa Anaya, filed suit against appellant, a Texas corporation, for breach of contract, or in the alternative, for recission of the contract. Appellees alleged that they paid $13,200.00 as a deposit for four (4) 1974 Ford LT 9000 Dump Trucks. In their petition, they stated that appellant did not deliver the trucks and asked for the return of their deposit, interest, and attorney’s fees. Service of process was first attempted on the registered agent Billy R. Parish at 5656 San Felipe, # 3, Houston, Texas, 77027. The constable was unable to serve the agent. The constable’s return indicates that service was attempted five separate times and that citation was returned for substitute service. Based upon the constable’s affidavit, an alias citation was issued for appellant which directed that it be served on appellant by serving the Secretary of State. The officer, from Travis County, Texas, made a return on this citation dated July 5, 1983, which reads “by delivering to Global Truck and Equipment, Inc. by delivering to John W. Fainter, Jr. Secretary of State, of Texas as agent for service....”

There is also in the record a certificate from the Secretary of State stating that two copies of the citation and petition were served upon the Secretary of State on July 5,1983. The certificate showed that a copy was forwarded by certified mail on July 5, 1983, to “Global Truck & Equipment, Inc., Billy R. Parish, Registered Agent, 5656 San Felipe, # 3, Houston, Texas, 77027, in accordance with Tex.Bus.Corp.Act.Ann. art. 211 (Vernon 1980).” It also showed that the citation was returned to this office on July 20, 1983, bearing the notation, “Forwarding Order Expired.” On September 16, 1983, a default judgment was entered against appellant for the sum of $13,-200.00 plus legal interest of $2,376.00 and attorney’s fees of $500.00.

Appellant asserts that the trial court erred in rendering the default judgment for three different reasons: the certificate of the Secretary of State does not show valid issuance and return of citation on appellant; the record fails to disclose an address of appellant’s registered office; the record fails to disclose that appellant’s registered agent could not with reasonable diligence be found at a registered office. In sum, appellant is challenging the sufficiency of service since appellee has failed to comply with the statutory prerequisites of Tex. Bus.Corp.Act.Ann. art. 2.11 (Vernon 1980). Article 2.11 provides:

A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served.
B. Whenever a corporation shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served. Service on the Secretary of State of any process, notice, or demand shall be made by delivering to and leaving with him, or with the Assistant Secretary of State, or with any clerk having charge of the corporation department of his office, duplicate copies of such process, notice, or demand. In the event any such process, notice, or demand is served on the Secretary of State, he shall immediately cause one of the copies thereof to be forwarded by registered mail, addressed to the corporation at its registered office ...

The Secretary of State, under the provision of art. 2.11(B) must forward such process by registered mail to the registered agent at the registered corporate office. The fact that the statute requires the Secretary to perform the acts does not support the presumption that a certain address is the registered office where a direct attack is made on a default judgment. Travis Builders v. Graves, 583 S.W.2d 865, 867 (Tex.Civ.App.—Tyler 1979, no writ).

Presumptions are usually made in support of a judgment and these include presumption of proper service of citation when the judgment so recites. However, no such presumption is made in a direct attack on default judgment.

Jurisdiction, in an action based on substituted service of process must affirmatively appear on the face of the record. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). In fact, if the jurisdiction does not appear on the face of the record, the judgment must be reversed. Travis Builders, Inc. 583 S.W.2d at 867 citing Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97 (Tex.Civ.App.—Corpus Christi 1972, no writ). “In order to uphold a default judgment against attack based upon a claim of invalid service of process, it is essential that the record affirmatively show a strict compliance with the provided manner and mode of service of process.” Charles Cohen, Inc. v. Adams, 516 S.W.2d 464, 465 (Tex.Civ.App.—Tyler 1974, no writ).

Appellant alleges that the requisite jurisdictional facts do not appear on the face of the record. The original petition simply alleges that Billy R. Parish is appellant’s registered agent, and does not allege that 5656 San Felipe, # 3, Houston, Texas, 77027, is the address of appellant’s registered office. There is no allegation concerning the registered office in the Secretary of State’s certificate. In fact the allegation is missing from the entire record. The allegation that the address was appellant’s registered office was missing from the record in Travis Builders, Inc., 583 S.W.2d 865, and the court found that the record did not support the default judgment. In Charles Cohen, Inc., 516 S.W.2d 464, 466, the court held that when serving a resident corporation the record must show on its face that reasonable diligence was used in seeking service upon the president, the vice-president, or the registered agent at the address of the registered office of the corporation. This means in our case that the record must show on its face that appellant’s president, vice-president, or registered agent was served at the registered office address of the corporation. It is undisputed that the record shows that Billy R. Parish is the registered agent of appellant. The record as it existed at entry of judgment, however, did not show that 5656 San Felipe, # 3, Houston, Texas, 77027 is the address of the registered office.

Appellees contend that the registered address of appellant does appear on the face of the record since the designation appears in the Response and Supplemental

Response to the Motion for New Trial. We disagree. We have held before that a document not filed or offered into evidence prior to entry of judgment is not a matter appearing on the face of the record and the court was not authorized to consider it. Tankard-Smith, Inc., General Contractors v. Thursby, 663 S.W.2d 473, 476 (Tex.App. — Houston [14th Dist.] 1983, writ dism’d). Additionally, a judgment cannot be validated with proof of service supplied in a hearing on the motion for new trial. When the trial court does not have jurisdiction over the person of the appellant at the time of the entry of the default judgment, the lack of jurisdiction could not then be cured by proof of service that was introduced after the entry of the judgment. Prine v. American Hydrocarbons, Inc., 519 S.W.2d 520, 522 (Tex.Civ.App. — Austin 1975, no writ). We cannot consider the documents filed in connection with the Motion for New Trial, and we find that the address of the registered office does not appear on the face of the record. Therefore, the record does not show a strict compliance with article 2.11, and we cannot uphold the default judgment. Charles Cohen, Inc., 5Í6 S.W.2d 464.

We find that appellant was not properly subjected to the jurisdiction of the trial court under the attempted substituted service.

Since appellant appeared to attack the judgment, he is presumed to have made his appearance to the term of court at which the mandate shall be filed. TEX.R. CIV.P. 123. Therefore, the judgment is reversed and the cause is remanded to the trial court for a trial on the merits.

PAUL PRESSLER, J., not participating.


source: Caselaw Access Project

author: ALLEN, Justice. GUILLOT, Justice,

license: Public Domain

text:
    AIR FLORIDA, INC., Appellant, v. Carolyn ZONDLER, William Zondler, Jr. and Patrick Zondler, Appellees.
    No. 05-83-01261-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 4, 1984.
    Rehearing Denied Jan. 11, 1985.

      Robert A. Gwinn, Charles L. Perry, Johnson, Bromberg & Leeds, Dallas, Tex., Desmond T. Barry, Jr., Condon & Forsyth, New York City, for appellant.
    Randall R. Moore, John Howie, Law Offices of Windle Turley, P.C., Dallas, Tex., for appellees.
    Before ALLEN, GUILLOT and STEWART, JJ.
   ALLEN, Justice.

Air Florida, Inc. has filed a limited appeal challenging the portion of the trial court’s judgment which awarded non-peeu-niary damages to Carolyn, William, Jr., and Patrick Zondler for the wrongful death of William Zondler, Sr. Air Florida contends that non-pecuniary damages can only be awarded for the wrongful death of minor children, that the award of damages for both mental anguish and loss of society amounted to a double recovery, and that there was no evidence to support the damage award for mental anguish because there was no evidence that any of the Zon-dlers suffered any physical injury accompanying their mental anguish. We reject Air Florida’s first two contentions but agree that there was not the requisite proof of physical injury to support an award of damages for mental anguish to any of the Zondlers. In addition, we reject the Zon-dlers’ cross-points that the trial court erred in failing to award prejudgment interest and that the jury’s finding that William Zondler, Sr. suffered no pain or mental anguish before his death was against the great weight and preponderance of the evidence. Consequently, we reform the judgment to eliminate the damage awards for mental anguish and affirm as reformed.

William Zondler, Sr. was killed in the widely-publicized crash of an Air Florida jetliner in Washington, D.C. The jet crashed through a bridge and into the Potomac River. Air Florida admitted liability by stipulation, and the parties tried the case solely on the issue of damages. The trial court’s judgment awarded Carolyn Zondler, William Zondler, Sr.’s wife, $1,500,000.00 for pecuniary loss, $500,-000.00 for loss of consortium, and $300,-000.00 for mental anguish. It awarded William Zondler, Jr. and Patrick Zondler, the deceased’s sons, $20,000.00 each for pecuniary loss, $50,000.00 each for loss of companionship and society, and $50,000.00 each for mental anguish.

Air Florida challenges the judgment first on the basis of its position that awards of non-pecuniary damages in wrongful death cases are limited to the situation in which deceased is a minor child. Air Florida grounds its argument chiefly on two premises: (1) the general rule in Texas has always been that non-pecuniary damages are not recoverable in wrongful death actions and (2) the precise holding in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), that a parent can recover non-pecuniary damages for the wrongful death of a minor child, is limited to its facts. Hence, Air Florida argues, although Sanchez created an exception to the general rule against nonpecuniary recovery, that exception is applicable only in the case of a minor child’s wrongful death. Air Florida buttresses its position by noting that the majority in Sanchez declined to adopt the broad language of Justice Ray’s concurring opinion, which urged the court to hold explicitly that any family member could recover non-pecuniary damages. In addition, Air Florida argues that there is a special rationale for allowing non-pecuniary recovery only in the case of a minor child, namely, that minor children in modern society produce, for the most part, no pecuniary value for their parents and that continued application of the old rule to eases in which a child is killed would almost universally exclude recovery by the bereaved parents. This, Air Florida says, is a particular injustice which the Sanchez court found necessary to correct. Air Florida insists that Sanchez addressed no other or broader injustice than this effective denial of recovery in all wrongful death cases in which a minor child was the family member killed.

After close examination of the Sanchez opinion, we cannot accept Air Florida’s analysis of the supreme court’s decision.

When we look at the cases the supreme court overruled in footnote 2 of its opinion, Sanchez, 651 S.W.2d at 251, we conclude that the supreme court in Sanchez rejected completely the rule that there can be no recovery of non-pecuniary damages in wrongful death cases. The supreme court in footnote 2 overruled a number of cases in which the deceased was not a minor child. In those cases, the court could only have been overruling the language enunciating the former rule that non-pecuniary damages are not recoverable. For example, the supreme court overruled March v. Walker, 48 Tex. 372 (1877), the oldest case and progenitor of the pecuniary loss rule in Texas. See Sanchez, 651 S.W.2d at 252. In March v. Walker, the guardian and next friend of the decedent’s minor children had brought the wrongful death action. March v. Walker, 48 Tex. at 373. Footnote 2 singles out page 375 of the March v. Walker opinion as the page containing the portion of that decision which the Sanchez court meant to overrule. The relevant language in March v. Walker, 48 Tex. at 375, is as follows:

The language of the [wrongful death] statute “damages proportioned to the injury resulting from such death,” is the same as ... the English statute, and it is well settled, that the damages given by such statutes are measured by the pecuniary injury to the respective parties entitled, including the loss of prospective advantage. The measure of damages is not the same as when a party himself sued for injuries received, and recovers compensation for physical and mental suffering.

Thus, the Sanchez court in footnote 2 overruled none other than the original pronouncement limiting recovery in wrongful death actions to the pecuniary loss.

Clearly, the rationale behind the Sanchez holding completely rejects the notion that wrongful death recovery must be limited to pecuniary loss. We disagree with Air Florida’s contention that a special rationale concerning minor children animated the Sanchez decision. The universal denial of recovery to bereaved parents of minor children would not be harsh and unjust if non-pecuniary losses were not real losses which demand compensation. See Sanchez, 651 S.W.2d at 252 (non-pecuniary losses are “significant injuries ... worthy of compensation”), citing Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978) (loss of consortium is compensable damage). Denying recovery for these real losses to adult children who have lost a parent, to parents who have lost adult children, or to husbands and wives who have lost their spouses would be equally harsh and unjust, especially in those cases in which for some reason the adult wrongfully killed would not have provided pecuniary benefits. See Sanchez, 651 S.W.2d at 252 (“[a] parent’s claim for damages for the loss of companionship of a child is closely analogous to the loss of consortium action created in Whittlesey ”). Finally, the majority opinion’s failure to adopt the broad language of Justice Ray’s concurrence signifies little. It is wise jurisprudence for a court to confine its holding to the facts actually before it, whatever logical implications the rationale for its holding might have. Indeed, a Texas court has no power to determine questions not essential to the decision of the controversy before it. Firemen’s Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex.1968); McKenzie v. McKenzie, 667 S.W.2d 568, 570 (Tex.App. — Dallas 1984, no writ); Davis v. Dairyland County Mutual Insurance Co. of Texas, 582 S.W.2d 591, 593 (Tex.Civ.App. — Dallas 1979, writ ref’d n.r. e.).

A majority of the Texas Court of Appeals decisions which have faced the question before us agree with our conclusion that non-pecuniary losses are recoverable even when the decedent is not a minor child. Missouri Pacific Railroad Co. v. Dawson, 662 S.W.2d 740, 741-42 (Tex.App. —Corpus Christi 1983, writ ref’d n.r.e.) granted non-pecuniary damages to a widow for the wrongful death of her husband and stated that either spouse coúld recover loss of consortium damages in a wrongful death action. The same Corpus Christi Court of

Appeals, in Lavender v. Hofer, 658 S.W.2d 812, 817 (Tex.App. — Corpus Christi 1983), affd in part, rev’d in part, all on other grounds, 679 S.W.2d 470 (1984), approved an award to parents of non-pecpniary damages for the death of a child who, according to the Texas Supreme Court opinion, was eighteen years old. 679 S.W.2d at 471. The El Paso Court of Appeals, in Moore v. Lillebo, 674 S.W.2d 474, 476 (Tex.App. — El Paso 1984, no writ), allowed an award of non-pecuniary damages for the death of an adult child, as did Houston’s First Supreme Judicial District Court of Appeals in City of Houston v. Stoddard, 675 S.W.2d 280, 285 (Tex.App. — Houston [1st Dist.] 1984, writ ref’d n.r.e.). There is only one case, from the Fort Worth Court of Appeals, which holds that, under Sanchez, non-pecuniary recovery is limited to cases in which the decedent is a minor child. Piper Aircraft Corp. & United Fire Insurance Co. v. Yowell, 674 S.W.2d 447, 461-62 (Tex.App. — Fort Worth 1984, no writ). In any event, for the reasons already stated, we cannot accept the Fort Worth court’s interpretation of Sanchez.

We hold that recovery of non-pecuniary damages in wrongful death actions is allowable for plaintiffs other than the parents of a minor child wrongfully killed. In particular, the spouse and adult children of a person wrongfully killed may recover such damages.

The next question is the nature of the non-pecuniary damages that are recoverable. Air Florida says that the non-pecuniary damage which a death in the family brings, even if called “loss of companionship and society,” really amounts to nothing more than mental anguish. We cannot agree. Loss of companionship and society (or consortium, which includes companionship, society and sexual relations) and mental anguish are distinct items or kinds of damage. Loss of companionship and society is the loss of a good, which loss in itself is compensable. See Whittlesey v. Miller, 572 S.W.2d at 667-68, cited in Sanchez, 651 S.W.2d at 252. Mental anguish is an additional consequential result of the loss of that good. A death in the-family might leave one emotionally numb, unable to feel grief; yet, even so, the loss of the loved one’s society, of the good things that come from being with that person, would be nonetheless real. Even when normal grief subsides, as it usually does, the loss of the good in the deceased’s companionship still persists. It is consequently not surprising that the decisions squarely addressing this question agree that loss of society and mental anguish are distinct items of recovery. Gulf State Utilities v. Reed, 659 S.W.2d 849, 852-53 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.), accord, Moore v. Lillebo, 674 S.W.2d at 477. (Missouri Pacific Railroad v. Dawson states in dictum that these items are “conceivably” distinguishable. Missouri Pacific Railroad, 662 S.W.2d 742-43.) We hold that plaintiffs in a wrongful death action may recover both for loss of society (or consortium) and for mental anguish.

Finally, we consider Air Florida’s contention that the Zondlers were not, in any case, entitled to recover for mental anguish. First, Air Florida argues that plaintiffs in this case were not in the “zone of danger” when William Zondler, Sr. died, had no “contemporaneous perception” of the accident, and thus should not recover damages for mental anguish. Air Florida urges this court to find that the Texas Supreme Court erred in Sanchez when it held that a wrongful death plaintiff need not have been in the “zone of danger” or have had a “contemporaneous perception” of the accident to recover for mental anguish. Sanchez, 651 S.W.2d at 254 n. 6. Of course, this court has no authority to find that the Texas Supreme Court has erred. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964); Woodard v. Texas Department of Human Resources, 573 S.W.2d 596, 598 (Tex.Civ.App.—Amarillo 1978, writ ref’d n.r.e.).

Air Florida’s second argument on the issue of the Zondlers’ entitlement to mental anguish damages is more substantial. Air Florida contends that the Zon-dlers have not proved the physical injury required for recovery of mental anguish damages. Before Sanchez, the Texas rule was that damages for mental anguish could be recovered only if the plaintiff showed an intentional tort, gross negligence, willful and wanton disregard, or an accompanying physical injury. Farmers & Merchants State Bank v. Ferguson, 617 S.W.2d 918, 921 (Tex. 1981). The question is whether Sanchez changed that rule. Baptist Hospital of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296, 298-99 (Tex.App. —Beaumont 1984, no writ) holds that Sanchez did change this rule, but the court of appeals in that decision supports its view only by pointing to the remarks in the Sanchez dissent expressing apprehension about language in the majority opinion which seemed to suggest “that any mental anguish, however slight, is compensable.” Sanchez, 651 S.W.2d at 258 (Pope, C.J., dissenting). However, the dissent acknowledges that the plaintiff in Sanchez satisfied the physical injury threshold. Id. Although the Sanchez opinion does use broad and expansive language in discussing recovery of mental anguish damages, we find nothing in either the holding or the rationale of that opinion which definitely indicates a change in the former rule requiring proof of an accompanying physical injury. Indeed, the plaintiff in Sanchez did suffer an accompanying physical injury, namely, frequent neck and shoulder pains and headaches. Sanchez, 651 S.W.2d at 253 (majority opinion). Moreover, Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 117-18 (Tex.1984) seems to retain the traditional limitations on recovery of mental anguish damages, although the opinion does not specifically mention the requirement of accompanying physical injury. We therefore decline to follow the court of appeal’s holding in Baptist Hospital. We hold instead that in a simple negligence case proof of accompanying physical injury is a necessary predicate to recover damages for mental anguish.

The Zondlers do not contend that Air Florida’s fault reached the level of intentional tort, gross negligence, or willful and wanton disregard. Consequently, we must decide whether the Zondlers proved the requisite physical injury. The best evidence of physical injury to Carolyn Zondler was that she “collapsed against the wall” upon hearing that her husband had probably died and that she had suffered severe depression and anxiety attacks. It is not clear, however, whether Carolyn Zondler’s “collapse” was, in fact, a physical collapse involving loss of consciousness or motor control or was simply a natural emotional reaction to the crushing news. Depression alone is a psychological, not physical, affliction. Although anxiety attacks often involve physical symptoms, such as the inability to breathe, there is no evidence that Carolyn Zondler suffered any such physical symptoms.

The evidence of the effects of William Zondler’s death on his two sons is even less suggestive of physical injury. This evidence, the testimony of a psychologist, only touches on the emotional and psychological problems the sons experienced on account of their father’s death. There is.nothing relating to physical symptoms at all.

We consequently find that, because the Zondlers produced no evidence at trial of accompanying physical injury, all the damage awards for mental anguish must be disallowed. Farmers & Merchants State Bank v. Ferguson, 617 S.W.2d at 921; Freedom Homes of Texas v. Dickinson, 598 S.W.2d 714, 717-18 (Tex.Civ.App. — Corpus Christi 1980, writ ref’d n.r.e.) (subjective mental symptoms and slight digestive disorders no evidence of physical injury).

We now address the Zondlers’ cross-points. First, the Zondlers insist that they should have been awarded pre-judgment interest on their damages. Texas does not allow pre-judgment interest in personal injury actions. Texas & N.O.R. Co. v. Carr, 91 Tex. 332, 43 S.W. 18 (1897); Piper Aircraft Corp. v. Yowell, 674 S.W.2d at 462-463 (wrongful death damages are too uncertain to warrant an award of pre-judgment interest); Hutton v. Burkett, 18 S.W.2d 740, 741 (Tex.Civ.App.— Eastland 1929, writ ref’d). Further, in State v. Weller, 666 S.W.2d 362, 363 (Tex. App. — Houston [14th Dist.] 1984, writ ref’d n.r.e.), the court held that Sanchez did not change this long-standing rule. We conclude that the most relevant authority is contrary to the Zondlers’ first cross-point; consequently, we overrule it.

The Zondlers also argue that the jury’s finding that William Zondler, Sr. suffered no pain or mental anguish before his death is against the great weight and preponderance of the evidence. The Zondlers’ evidence on this point comes mainly from a survivor of the plane crash. This survivor (an experienced airplane traveler) testified that when the plane took off, it shook so abnormally that he knew almost immediately that something was wrong. Other people, he said, were looking around after take-off. He did not say whether they seemed to be afraid or simply puzzled. This witness testified that he observed that the plane was not ascending after take-off. Since he knew the layout of the runway, he realized within ten seconds after take-off that the plane would crash. He therefore prepared himself for impact. He testified that he was conscious after the collision with the bridge, although he did black out when the plane subsequently hit the water. He reported in his testimony that there were people crying and moaning after the crash, but that these sounds stopped very quickly after the crash, when the plane sank.

This witness did not know William Zondler. He gave no testimony based on direct observation of Zondler showing Zondler’s probable knowledge of, reaction to, and condition after the crash. The Zondlers presented no evidence to show that William Zondler was in a position to see, as the witness was, that the airplane was about to crash. They did not show that William Zondler was sitting in a place in which it was likely that he would have survived and been conscious after the first impact. (Their witness was sitting at the back of the plane.) Finally, the Zondlers, in answers to two of Air Florida’s interrogatories, stated that they did not know whether William Zondler died instantaneously in the crash or whether he suffered conscious pain before his death.

In light of all this, we would be hard put even to say that there was some evidence to support a finding that William Zondler suffered conscious pain and mental anguish before his death. We clearly cannot say that the jury’s finding that he suffered none is against the great weight and preponderance of the evidence. We overrule the Zondlers’ second cross-point.

Accordingly, we reform the judgment of the trial court to eliminate the award for mental anguish of $300,000.00 to Carolyn Zondler and the awards for mental anguish of $50,000.00 each to William Zondler, Jr. and Patrick Zondler. As so reformed, we affirm the judgment.

Reformed and affirmed.

GUILLOT, J., dissenting.

GUILLOT, Justice,

dissenting.

I respectfully dissent from the majority’s opinion because I believe the court should overturn its longstanding decisions and authorize recovery for mental anguish without proof of physical injury in a simple negligence case.

Various reasons have been advanced for the unwillingness to redress mental injuries in a simple negligence case. One is the difficulty of measuring the damages. “Mental pain or anxiety,” said Lord Wens-leydale in the parent of a long line of decisions in 1861, “the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” Lynch v. Knight, 9 H.L.C. 577, 598; 11 Eng.Rep. 854, 863 (1861). Insofar as the generalization may be true, it can hardly be based upon the reason indicated, namely, that mental suffering is too subtle and speculative to be capable of measurement by any standard known to the law. That a plaintiff’s recovery must be in money damages need cause us little more difficulty in cases of emotional disturbance than in any other instance of non-peeuniary loss — the pain of a shattered leg, the loss of reputation from a defamation, the loss of liberty from false imprisonment — none of which has been denied compensation. E.g., Goodrich, “Emotion Disturbance as a Legal Damage,” 20 MICH.L.REV. 503, 509 (1921); Magruder, “Mental and Emotional Disturbance in the Law of Torts,” 49 HARV.L.REV. 1033 (1936); Prosser, “Intentional Infliction of Mental Suffering a New Tort,” 37 MICH.L.REV. 874, 875 (1939).

The established rule of damages set forth in the RESTATEMENT (SECOND) OF TORTS, § 47(b) (1965) states:

Where the actor’s tortious conduct in fact results in the invasion of another legally protected interest, as where it inflicts bodily harm, or imposes a confinement, emotional distress caused either by the resulting invasion or by the conduct may be a matter to be taken into account in determining the damages recoverable. In many instances there may be recovery for emotional distress as an additional, or “parasitic” element of damages in an action for such a tort.

As long ago as 1906, legal scholars remarked upon this phenomenon. One called such damages “parasitic,” and ventured a prediction which has proved to be true: “The treatment of any element of damages as a parasitic factor belongs essentially to a transitory stage of legal evolution. A factor which is today recognized as parasitic will, forsooth, tomorrow be recognized as an independent basis of liability.” STREET, FOUNDATIONS OF LEGAL LIABILITY, 470 (1906); Prosser, supra at 88; Goodrich, supra at 510; Magruder, supra at 880. The negligent infliction of mental anguish is in the process of becoming a cause of action in itself, just as the intentional infliction of such damages became an independent cause of action.

Protection has already been afforded to mental tranquility in a variety of situations. For example, large sums of money have been recovered as damages for false imprisonment, though the detention was of a short duration and involved no damage other than annoyance and indignity. Gadsden General Hospital v. Hamilton, 212 Ala. 531, 103 So. 553 (1925). Damages have also been recovered for injuries to feelings in defamation cases, where no special damage is alleged, even though the reputation has not been hurt by the publication. McArthur v. Sault News Printing Co., 148 Mich. 556, 112 N.W. 126 (1907); Louisville Press Co. v. Tennelly, 105 Ky. 365, 49 S.W. 15 (1899).

Just as mental tranquility has been protected, mental suffering has long been a recognized element of damages. In many cases, mental distress has often been the only substantial damage. Tennelly, 49 S.W. at 15. The tendency remains, however, to find or include some other basis for the action — however strained — and to disguise the real basis of recovery under another name. Consequently, the courts have allowed substantial sums to be recovered as damages for shock, fright, humiliation, and other forms of “mental anguish” whenever accompanied by physical injury.

The “physical injury” may include inhalation of smoke, electric shock, dust in the eye, and similar trivialities. Morton v. Stack, 122 Ohio St. 115, 170 N.E. 869 (1930); Hess v. Philadelphia Transportation Co., 358 Pa. 144, 56 A.2d 89 (1984); Porter v. Delaware, L. & W.B. Co., 73 N.J.L. 405, 63 A. 860 (Sup.Ct.1906) (respectively). When the requisite physical injury is found, full recovery is allowed; the damages are not limited to the physical injury. Thus, in the instant case, had Mrs. Zondler fallen to her knees upon learning of her husband’s death, bruising them, she would be entitled to fully recovery the $300,000.00 the jury awarded her to redress her mental anguish. This is absurd.

Allowing damages as described above should end the argument that adjusting compensation is impossible and that awarding damages for mental anguish without physical injury is too speculative to be recognized as a legally protected interest. There is no reason to resort to such subterfuges. It is time to abandon them and to rest the action upon its real ground.

We have already started to see a departure from physical injury being a requisite for recovery for mental anguish. One of the early decisions rejecting a physical injury requirement was the Hawaii case, Rod-rigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). Following the rationale of that decision, the California Supreme Court agreed that the “unqualified requirement of physical injury is no longer justifiable.” Molien v. Kaiser Foundation Hospitals, 27 Cal.2d 916, 167 Cal.Rptr. 831, 616 P.2d 813, 820 (1980). In Molien, while recognizing that the physical injury rule is still followed by most courts, the court stated that the arbitrary distinction between physical and psychological injury “clouds the issue”; the real question is one of proof. Jurors are capable of determining from their own experiences whether and to what extent a plaintiff has sustained emotional distress as a result of the defendant’s conduct. Molien, 616 P.2d at 821.

The Supreme Court of Arkansas has approved sizeable amounts for mental anguish alone. Pitts v. Greene, 382 S.W.2d 904 (Ark.1964); Tiner v. Tiner, 379 S.W.2d 425 (Ark.1964); Peugh v. Oliger, 345 S.W.2d 610 (Ark. 1961). In none of these cases was there more evidence of mental anguish shown than in the Pitts case, a case involving the wrongful death of a 17-year-old girl. The mother testified that she went to pieces and had to go to work since she couldn’t stay at home, that she was unable to work and had to leave town several times, but nothing helped. The nurse drew a “touching picture” of how the mother acted while visiting the hospital, indicating excessive grief. The father’s anguish was indicated by the showing that he was visibly upset while testifying — his face was contorted and it was hard for him to make audible. answers. Pitts, 382 S.W.2d at 909. The court held it was within the province of the jury to fix the pecuniary remuneration to compensate the parents for the grief of the loss of their daughter. Pitts, 382 S.W.2d at 909.

Texas courts have begun to recognize mental anguish as an independent basis of liability. The Supreme Court of Texas, in the case of Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), in dicta, authorized recovery for mental anguish absent proof of physical injury or conduct worse than negligence. In the case of Baptist Hospital of Southeast Texas v. Baber, 672 S.W.2d 296 (Tex.Civ.App. — Beaumont 1984, reh. den.), the Beaumont Court of Appeals followed the Supreme Court by holding, “We believe Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), has now authorized the recovery for mental anguish without proof of physical injury or conduct worse than negligence.” Baptist Hospital, 672 S.W.2d at 299. For disapproving cases see, e.g., Speier v. Webster College, 616 S.W.2d 617 (Tex.1983); Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777 (Tex.1980); Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980); Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (Tex. Comm’n App.1929, holding approved).

While it is clear that there are conflicting cases regarding the recovery of damages for mental anguish without proof of physical injury, this but indicates that the law on this subject is in a transitory stage. I believe we should adopt the trend that does not rely on the absurdity of requiring a physical injury. Having recognized the value of a peaceful mental state, the law should remedy any wrong to that state, for it is the business of the law to remedy deserving wrongs.

The danger that a host of meritless claims will be brought is no reason to deny recovery for any genuine, serious mental injury. As Chief Justice Holt said as long ago as 1703: “It is no objection to say that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his recompense.” Ashby v. White, 2 Ray on Ld 938, 955, 92 Eng.Rep.R. No. 126, 137 (KB 1703).

No rule which results in the denial of a legal remedy in all cases should be retained simply because in some cases a fictitious injury may be urged or a difficult problem of proof presented. Consequently, I would affirm the jury award of damages for mental anguish absent proof of physical injury.


author: JUNELL, Justice.

text:
    ROME INDUSTRIES, INC. d/b/a Reynolds Manufacturing Company of McAllen, Texas, Appellant, v. INTSEL SOUTHWEST, Appellee. TEXAS AMERICAN BANK, Appellant, v. INTSEL SOUTHWEST, Appellee.
    Nos. C14-84-153-CV, C14-84-323CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 6, 1984.

      Kenneth Stohner, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellants.
    Michael A. Pohl, Kevin Grillo, Gilpin, Maynard, Parsons, Pohl & Bennett, Houston, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, Justice (Retired).
   OPINION

JUNELL, Justice.

This is an appeal from summary judgments granted Intsel Southwest (Int-sel/Appellee) against Rome Industries, Inc. d/b/a Reynolds Manufacturing Company of McAllen, Texas (Rome) and Texas American Bank (Bank) wherein Intsel sought enforcement of a post-judgment writ of garnishment against assets of its judgment debtor, Kelley Corporation. Both Rome and Bank are appellants. We reverse and remand.

On August 12, 1983, Fesa Corporation N.Y. and Kelley Industries, Ltd. (or Kelley Corporation), as Sellers, and Rome Industries, Inc., as Buyer, entered into a purchase agreement whereby Rome would acquire substantially all of the assets of the Sellers pursuant to the bulk sales provisions of the Texas Business and Commerce Code. The purchase agreement named Texas American Bank to serve as escrow agent for distribution of the sales proceeds to the creditors of the Sellers in accordance with TEX.BUS. & COM.CODE ANN. § 6.106 (Tex.UCC) (Vernon 1968). It is undisputed that the total creditor claims of the Sellers exceeded the total sales proceeds.

After receiving notification of the sale, as required by Section 6.105 of the Business and Commerce Code, Intsel sought a post-judgment writ of garnishment against Appellants. On September 16, 1983, and September 19, 1983, respectively, the writs were served on Texas American Bank and Rome Industries. Pursuant to TEX.R. CIV.P. 665, Appellants answered the writ of garnishment, setting forth the following:

(1) At the time the writ was served, neither garnishee was indebted to Kelley Corporation in any amount.
(2) Rome Industries as Buyer entered into a purchase agreement on August 12, 1983 with Fesa Corporation, N.V. and Kelley Industries, Ltd. as Sellers.
(3) On October 4, 1983, a closing of the purchase agreement took place and Rome Industries purchased certain assets of Fesa Corporation, N.V. and Kelley Industries, Ltd. in consideration for the payment of $777,320 to Texas American Bank, as escrow agent.
(4) The Sale was made pursuant to the bulk sales provisions of the Texas Business and Commerce Code.

Upon finding that Appellants were indebted to Kelley Corporation for $777,320, the trial court entered summary judgment against both Appellants for the sum of $40,344.56.

In points of error one through three, Appellants contend the trial court erred in granting Intsel’s motion for summary judgment because neither Rome nor Bank was indebted to Kelley on the dates the writs of garnishment were served or thereafter. In addressing these points, this court must determine whether a judgment creditor who, after notification of the sale, pursuant to TEX.BUS. & COM.CODE § 6.104, et seq., serves a writ of garnishment on a purchaser in a bulk sales transaction, is entitled to receive payment in full from the purchaser for its claim against the seller, as judgment debtor, or only a pro-rata share, when the purchase price is insufficient to pay all of the creditors.

TEX.REY.CIV.STAT.ANN. art. 4084 (Vernon 1968) provides that after a writ of garnishment is served, “it shall not be lawful for the garnishee to pay to the defendant any debt or to deliver to him any effects.... ” A writ of garnishment not only impounds the funds held by garnishee when the writ is served, but also funds belonging to the debtor up to and including the day the garnishee is required to file its answer. First National Bank in Dallas v. Banco Longoria, S.A., 356 S.W.2d 192 (Tex.Civ.App. — San Antonio 1962, writ ref d n.r.e.); Cooper v. Cocke, 145 S.W.2d 275 (Tex.Civ.App. — Amarillo 1940, no writ). In Beggs v. Fite, 130 Tex. 46, 106 S.W.2d 1039, 1042 (1937) the supreme court stated that:

A plaintiff in garnishment is, by virtue of the statute, subrogated to the rights of his debtor against the garnishee. In other words, by strict compliance with our garnishment statutes, a plaintiff in garnishment merely steps into the shoes of his debtor as against the garnishee, and may enforce, as against such garnishee, whatever rights the debtor could have enforced had such debtor been suing the garnishee directly. (Emphasis added.)

It follows, of course, that the garnishor acquires no greater right by service of the writ than the judgment debtor could assert and enforce against the garnishee. Pearson Grain Co. v. Plains Trucking Co., Inc., 494 S.W.2d 639 (Tex.Civ.App. — Amarillo 1973, writ ref’d n.r.e.). In determining the force and effect of the writ of garnishment on Appellants, we must decide whether Kelley Corporation, the judgment debt- or, could have successfully sued Appellants for the proceeds of the bulk sale. In our opinion it could not.

Bulk sales are governed by the provisions of Chapter 6 of the Business and Commerce Code, commonly referred to as the Bulk Transfers Act. A bulk transfer is defined as “any transfer in bulk and not in the ordinary course of the transferor’s business of a major part of the materials, supplies, merchandise or other inventory of an enterprise subject to this chapter.” TEX.BUS. & COM.CODE ANN. § 6.102 (Tex.UCC) (Vernon 1968). Under the Act a bulk transfer is ineffective against any creditor of the transferor unless the transferee does the following: (1) requires the transferor to furnish the transferee a sworn list of existing creditors; (2) arranges with the .transferor for the preparation of a schedule of the property transferred sufficient to identify it; (3) preserves the list and schedule for six months following the transfer for inspection by seller’s creditors; and (4) gives notice to the trans-feror’s creditors of the sale at least ten days before he takes possession of the goods or pays for them, whichever happens first.

The current Act does not set out the remedies available to a creditor if the provisions of the Act are not followed. However, it seems clear that, absent compliance of the parties to a bulk sale, creditors may ignore the transfer and pursue whatever remedies would be available to them under state laws outside of the code. See Southwestern Drug Corp. v. McKesson & Robbins, Inc. , 141 Tex. 284, 172 S.W.2d 485, 486-487 (1943); Anderson & Clayton Co. v. Earnest, 610 S.W.2d 846, 848 (Tex.Civ. App. — Amarillo 1980, no writ); Sections 6.104 comment 2 and 6.105 comment 3, TEX.BUS. & COM.CODE ANN. (Tex.UCC) (Vernon 1968); also see Clontz, “Should an Article 6 Study Be The Next Task For The Permanent Editorial Board,” 4 U.C.C.L.J. 214. (1972).

In the case before us we are not faced with a claim of noncompliance with the Act. In fact, it is undisputed that the parties involved fully complied with the requirements set forth in the bulk transfer provisions. Therefore, we believe Section 6.106 clearly limits Appellee’s recovery to a pro rata portion of the sales proceeds.

Section 6.106 of the Act provides the following:

In addition to the requirements of the two preceding sections:
(1) Upon every bulk transfer subject to this chapter for which new consideration becomes payable except those made by sale at auction it is the duty of the transferee to assure that such consideration is applied so far as necessary to pay those debts of the transferor which are either shown on the list furnished by the transferor (Section 6.104) or filed in writing in the place stated in the notice (Section 6.107) within thirty days after the mailing of such notice. This duty of the transferee runs to all the holders of such debts, and may be enforced by any of them for the benefit of all. (Emphasis added.)
(2) If any of said debts are in dispute the necessary sum may be withheld from distribution until the dispute is settled or adjudicated.
(3) If the consideration-payable is not enough to pay all of the said debts in full distribution shall be made pro rata. (Emphasis added.)

Under Section 6.106, the transferee, in effect, guarantees that the consideration paid for the assets of the transferor will be used to satisfy the transferor’s debts. It further provides that the duty of the transferee to apply the proceeds to the debts of his transferor may be . enforced by any creditor for the benefit of all. Section 6.106(3) further states that if the consideration is not enough to satisfy the debts in full, pro rata distribution shall be made. This provision, as worded, clearly accords no rights to the judgment debtor to the proceeds of the sale. Therefore, we cannot support Appellee’s contention that a judgment creditor, after proper notification of an impending bulk transfer pursuant to the Bulk Transfers Act, may cut off the rights of other creditors, similarly notified, by serving a writ of garnishment upon the transferee. We believe these proceeds are payable solely to the seller’s creditors, pro rata, not to the judgment debtor.

No Texas courts have directly addressed the issues before us. Appellee cites a Pennsylvania case to support its position. In In Re Bulk Sale Clement, 98 Dauph. 55, 71 Pa.D. & C.2nd 717, 18 UCC Rptr. 1280 (CP 1976), the Pennsylvania Court of Common Pleas addressed the question whether lien creditors are entitled to a preference over general creditors in the distribution of proceeds pursuant to a bulk transfer. There, the three lien creditors each had obtained judgments, and writs of execution and attachment on the debtors’ personal property had issued one to three months before the bulk sale occurred. The court noted that, in fact, after the sheriff’s attachment of the debtors’ property some months before, a bulk sale was impossible and of no effect. The court held that under these circumstances, the lien-holders had acquired secured status and were entitled to a priority right.

The case before us is distinguishable from the Pennsylvania case. While Appel-lee claims it had a judgment lien prior to the actual transfer, a review of the record indicates that prior to notification of the bulk sale, Appellee had not perfected any judgment lien. There is nothing in the record before us showing issuance of any writ of execution or any levy on and legal seizure of any personal property of Kelley. This would have been necessary to perfect a judgment lien, and even then such lien would have been against only the personal property actually seized. Fore v. United States, 339 F.2d 70 (5th Cir.1964), cert, denied, 381 U.S. 912, 85 S.Ct. 1532, 14 L.Ed.2d 433 (1965); 34 TEX.JUR.3d Enforcement of Judgments § 67 (1984). See generally C.I.T. Corp. v. Haynie, 135 S.W.2d 618 (Tex.Civ.App. — Eastland 1939, no writ). Apparently, the first action taken by Intsel after judgment was its application for a writ of garnishment. This action was not sufficient to make Appellee a secured creditor with a priority right over other creditors. We sustain Appellants’ points of error one through three.

In light of our disposition of Appellants’ first three points of error, there is no need for us to address the remaining points.

The judgments of the trial court are reversed and both cases are remanded to the trial court.

      . The record reflects that the judgment debtor is referred to throughout as Kelley Corporation whereas the purchase agreement names Fesa Corporation N.V. and Kelley Industries, Ltd. as the Sellers. However, in response to Intsel’s Request for Admissions, Rome admitted that “[o]n or about October 4, 1983, the Sale of the Judgment Debtor’s (Kelley Corporation) assets to Rome Industries was consumated [sic]” Thus, it is apparent that the names have been used interchangeably.

      . This case was decided under the Texas Bulk Sales Act, TEX.REV.CIV.STAT.ANN. arts. 4001-03. This legislation was replaced on July 1, 1966, by Article 6 of the Uniform Commercial Code.


author: ROBERTSON, Justice.

text:
    LYNN McGUFFY CO., INC., Petitioner, v. PERFECTED INDUSTRIAL PRODUCTS, INC., Respondent.
    No. B14-84-403CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 6, 1984.
    Will G. Dickey, Dickey & Crofford, Houston, for petitioner.
    Mike Wike, David S. Prince, Houston, for respondent.
    Before PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

This appeal by writ of error seeks to set aside a default judgment based upon lack of service. Finding a failure to strictly comply with the applicable statutes for substituted service, we reverse and remand.

Petitioner is a Louisiana corporation authorized to transact business in the State of Texas. Pursuant to Tex.Bus.Corp. Act Ann. art. 8.08 (Vernon 1980), it designated Little & Dickey, P.C. as its registered agent for service in Texas. Apparently, the agent moved and neither petitioner nor the agent notified the secretary of state as required by Tex.Bus.Corp. Act Ann. art. 8.09.

On July 25, 1983, respondent initiated a lawsuit against petitioner on a sworn account, and sought service of citation on petitioner’s registered agent. After two unsuccessful attempts at service, the citation was returned to the court as “expired paper.” Respondent then amended its petition seeking substituted service under Tex. Rev.Civ.Stat.Ann. art. 2031b (Vernon 1964) through the secretary of state. The secretary of state attempted service under Tex. Bus.Corp. Act Ann. art. 2.11 (Vernon 1980) by sending a copy of the citation to the registered agent by registered mail, but it was returned bearing the notation “forwarding order expired.” Subsequently, default judgment was granted.

While we construe all of petitioner’s six points of error to attack the validity of the judgment because of no in personam jurisdiction over it since there was a lack of service of process, we need address only points two and three as they are disposi-tive. In the second point, petitioner contends the record does not show compliance with Article 2031b, and in the third point, petitioner contends it was not amenable to service under Article 2.11 of the Texas Business Corporation Act.

Respondent sought service under the Texas Long Arm Statute, Tex.Rev.Civ. Stat.Ann. art. 2031b (Vernon 1964), and was, therefore, required to strictly comply with the requirements of that statute in order to obtain in personam jurisdiction. Verges v. Lomas & Nettleton Financial Corp., 642 S.W.2d 820, 821 (Tex.App.—Dallas 1982, no writ). The pertinent sections of article 2031b are:

Section 1. When any foreign corporation ... required by any Statute of this State to designate or maintain a resident agent, ... has one or more resident agents and two (2) unsuccessful attempts have been made on different business days to serve process upon each of its designated agents, ... such corporation ... shall be conclusively presumed to have designated the Secretary of State of Texas as their true and lawful attorney upon whom service of process or complaint may be made.
Section 5. Whenever process against a foreign corporation ... is made by delivering to the Secretary of State duplicate copies of such process, the Secretary of State shall require a statement of the name and address of the ... home office of the non-resident. Upon receipt of such process, the Secretary of State shall forthwith forward to the defendant a copy of the process by registered mail, return receipt requested.

Our supreme court in Whitney v. L & L Realty Corp., 500 S.W.2d 94, 95-6 (Tex.1973) stated: “there must be proof in the record that the defendant was, in fact, served in the manner required by statute.” (emphasis added). Section 5 of article 2031b directs the Secretary of State to require a statement of the name and address of the home office of the non-resident, and then to forward a copy of the process to the defendant by registered mail, return receipt requested. The record fails to show compliance with the statute and we, therefore, sustain the petitioner’s second point of error.

In its third point, petitioner contends the secretary of state was not authorized to serve process on it under art. 2.11 of the Tex.Bus.Corp. Act as art. 8.10 of the act controls how process on a foreign corporation may be served.

The Texas Business Corporation Act defines both the terms “corporation” and “foreign corporation,” and specifically excepts a foreign corporation from the provisions of the act when the provision refers to a “corporation.” Article 2.11 provides for service of process on a “corporation” and Article 8.10 provides for service of process on a “foreign corporation.” We reject respondent’s argument that a foreign corporation may be served under the provisions of Article 2.11 for the reason that such construction would be in violation of the plain wording of the statutes referred to. We sustain petitioner’s third point.

In its reply point respondent contends petitioner has failed to perfect its writ of error and is not properly before us. Specifically, respondent contends that petitioner has failed to allege a meritorious defense and has not shown that its failure to answer was not a result of its negligence or conscious indifference, relying on Perez v. Columbia Civic Center, Inc., 658 S.W.2d 341 (Tex.App. — Corpus Christi 1983, no writ). We distinguish the Perez case because there Perez had been served with process and he failed to answer. In the case before us the attack upon the judgment as being void is based upon no in personam jurisdiction over petitioner. Under these circumstances it is not necessary that the defaulting defendant satisfy the four requirements as established by the supreme court in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex.1939). McEwen v. Harrison, 345 S.W.2d 706 (Tex. 1961).

In passing, we believe the facts reflected and the results reached in this case demonstrate the need for legislative changes in Tex.Bus.Corp. Act art. 8.01 and Tex.Rev. Civ.Stat. art. 2031b. If substituted service through the secretary of state is sought upon a foreign corporation which has been authorized to transact business in this state and has designated agents for service of process, we fail to see any valid reason for there to be a distinction in the requirements for effective service whether the corporation is domestic or foreign.

The judgment is reversed and remanded for trial.


author: PHILLIPS, Chief Justice.

text:
    RAILROAD COMMISSION OF TEXAS, et al., Appellants, v. RIO GRANDE VALLEY GAS COMPANY, Appellee.
    No. 14164.
    Court of Appeals of Texas, Austin.
    Dec. 12, 1984.
    Rehearing Denied Jan. 30, 1985.

      Jim Mattox, Atty. Gen., Jo Campbell, Asst. Atty. Gen., B.D. St. Clair, Brook Bennett Brown, McGinnis, Lochridge & Kil-gore, Austin, for appellants.
    M. Frazier King, Jr., San Antonio, Rex H. White, Jr., O’Neill, Haase & White, Austin, for appellee.

      Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   PHILLIPS, Chief Justice.

The main issue in this case (as was agreed upon by all parties in oral argument) is the meaning of Section 41(c)(1) of the Public Utility Regulatory Act (PURA), which, in general, and with an exception discussed below, disallows, for the purpose of rate setting, payments made by a utility to affiliate interests. Appellee, Rio Grande Valley Gas Co., a subsidiary of Valero Energy Co., contended in the court below that the Railroad Commission acted in an arbitrary, capricious and confiscatory manner in disallowing certain evidence pertinent to Section 41(c)(1) of PURA. We point out here that direct charges and allocated charges for services based on usage from Valero Energy as well as other affiliates, were fully allowed by the Commission. It was only certain residual costs hereinafter described that Rio sought to allocate that were disallowed.

The trial court found that the Commission had acted in an arbitrary and capricious manner in excluding their costs from the rate base, vacated the order and remanded the case to the Commission to allow Rio the opportunity to fully develop the record as to the reasonableness of the method of allocation of the residual costs in contention.

We reverse the judgment of the trial court and render judgment herein, reinstating the Commission’s order.

I.

Appellants Railroad Commission and the numerous cities, are before us on a welter of points. We will discuss only the questions involving the evidence excluded under Section 41(c)(1) of PURA, as appellee stated at oral argument that this was the crux of its case. We also believe these ques-

tions to be the crucial ones pertinent to a decision of this case. We are well aware that Rio launched a broadly based attack on the Commission’s Final Order. In its Motion for Rehearing and Petition for Review, however, we have reviewed all of these points and find them without merit.

II.

In enacting PURA, the Legislature placed a specific duty on the Commission to carefully scrutinize all payments made by a utility to an affiliate and to disallow all such payments unless the utility showed that the payments met certain statutory requirements. This skepticism regarding affiliate payments is expressed in Section 41(c)(1) of PURA which provides as follows:

The components of adjusted value of invested capital and net income shall be determined according to the following rules:
(a) ...
(b) ...
(c) Net Income. By ‘net income’ is meant the total revenues of the public utility less all reasonable and necessary expenses as determined by the regulatory authority. The regulatory authority shall determine expenses and revenues in a manner consistent with the following:
(1) Transactions with Affiliated Interests. Payment to affiliated interests for costs of any services, or any property, right or thing, or for interest expense shall not be allowed either as capital cost or as expense except to the extent that the regulatory authority shall find such payment to be reasonable. Any such finding of reasonableness shall include specific statements setting forth the cost to the affiliate of each item or class of items in question and a finding that the price to the utility is no higher than prices charged by the supplying affiliate to its other affiliates or divisions for the same item or items, or to unaffiliated persons or corporations.

The wisdom of this legislative mandate was succinctly stated by the Pennsylvania Court in Solar Electric Co. v. Pennsylvania Public Utilities Commission, 137 Pa. Super. 325, 9 A.2d 447 (1939), wherein it interpreted similar legislative language and held that affiliate charges should be carefully scrutinized and disallowed unless the utility shows that the services provided were necessary and reasonably priced:

The desire of public utility management, evidenced by various methods, to secure the highest possible return to the ultimate owners is incompatible with the semi-public nature of the utility business, which the management directs. It therefore follows that the Commission should scrutinize carefully charges by affiliates, as inflated charges to the operating company may be a means to improperly increase the allowable revenue and raise the cost to the consumers of utility service as well as an unwarranted source of profit to the ultimate holding company.

Id. 9 A.2d at 473, 474.

Rio was simply unable or unwilling to make the required proof as to the affiliate residual charges it was allocated pursuant to the hereinafter described Massachusetts formula. These are the only affiliate charges at issue since as pointed out above, the Commission allowed the direct charges and the charges based on usage made by Rio’s affiliates. Rio’s entire approach has been that the Commission is required to allow the residual affiliate charges unless they are shown to be imprudent, unreasonable, or out of line. Although that may be true with respect to arms length transactions, it is not true with respect to payments to affiliates about which the Legislature has its suspicion and which to any reasonable mind are clearly tainted with the possibility of self-dealing.

In upholding the Commission’s disallowance of certain affiliate charges, the New York Court said:

When such materials and services are obtained through contracts which are the result of arm’s-length bargaining in the open market, the contract price is usually accepted as the proper cost. However, when a utility and its suppliers are both owned and controlled by the same holding company, the safeguards provided by arm’s-length bargaining are absent, and ever present is the danger that the utility will be charged exorbitant prices which will, by inclusion in its operating costs, become the predicate for excessive rates.

General Telephone Co. of Upstate New York v. Lundy, 17 N.Y.2d 373,- 271 N.Y. S.2d 216, 218 N.E.2d 274, 277 (1966).

The burden was upon Rio to show that its affiliate charges were just and reasonable. PURA, § 40. In our judgment, it failed to meet its burden under Section 41(c)(1) of PURA in at least four major areas:

1. Plaintiff had the burden of showing that the prices it was charged by its affiliate were no higher than the prices charged by the supplying affiliate to its other affiliates. Plaintiff failed in this burden.

2. Plaintiff had the burden of showing that expenses which may not be allowed for rate making purposes for any reason (i.e., legislative advocacy, donations, entertainment, advertising products marketed by other subsidiaries, etc.) were not included in the “allocated expenses.” Plaintiff failed to meet this burden.

3. Plaintiff had the burden of proving that each item of allocated expense was reasonable and necessary. Plaintiff failed to meet this burden.

4. Plaintiff had the burden of proving that the allocated amounts reasonably approximated the actual cost of services to it. Plaintiff failed to meet this burden.

To justify the allocation to it of its parent and other affiliates’ residual charges, Plaintiff relied on what it called the “Massachusetts Formula.” While that formula may have validity in some applications, it certainly has none when taken in connection with Section 41(c)(1) of PURA. At most, the Massachusetts Formula is a reasonable allocation methodology. It does not support a finding of reasonableness that must include specific statements setting forth the reasonableness of the cost to Rio of each item or class of items in question. Moreover, it in no way bears on the question of whether the price to Plaintiff is no higher than prices charged by the supplying affiliate to other affiliates for the same item or items. Both of these requirements are set forth in plain and unambiguous language in the statute.

Among other affiliates of Valero Energy, Rio’s parent, are Esco Supply Company, Corpus Christi Marine Services Co., Saber Energy, Valero Eastex Pipeline Co., and J. & R. Coal Co. The Massachusetts Formula of allocating residual administrative and general expenses as applied to Rio was not similarly applied to these other affiliates. Before November 1981, Esco and Corpus were charged for some, although not all, expenses (called expense centers by Rio) under the Massachusetts Formula Allocation. Among the expense centers not allocated to these companies was No. 398 Public Affairs. The record is silent as to why these affiliated companies should not bear their allocated portion of these expenses. In November 1981, an adjustment was made with respect to the allocated expenses to be borne by these two companies to accommodate for an arbitrarily selected management fee. No discussion of how the expenses were adjusted upward or downward or what portion of the allocated expenses the management fee was intended to cover was offered by Rio.

No residual expenses are allocated under the Massachusetts Formula to Saber Energy even though Valero owns fifty percent of that affiliate, and no adequate explanation is given as to how Saber bears its share of the allocated expenses. Indeed, it appears Saber bears none of these expenses. Saber is charged expenses using a direct charge methodology, but so is Rio, and Rio was allocated those charges. Rio failed to provide the Commission information showing that Saber carried its share of allocated costs, not to mention information by which the Commission could compare the allocated cost for services to the affiliate Saber with the cost to Rio on an item-by-item basis to be sure that Rio is not being charged higher prices than Saber is being charged. That is the mandate of the statute which Rio did not choose to follow.

Valero Eastex Pipeline Company simply is not included and bears no portion of the administrative and general costs (A & G) under the Massachusetts Formula allocation, even though it owns assets.

J. & R. Coal Co. is not allocated any of the A & G costs under the Massachusetts Formula. Instead, it is under a management fee and, as is the case with Saber Energy, Rio did not make the information available to the Commission by which it could make the mandatory finding that Rio was being charged no higher price for the items than was its sister affiliate. Although Rio has implied that these companies, through management fee or otherwise, bear some administrative and general costs on a direct usage basis, that suggested inference does not meet the mandate of the statute. Moreover, Rio failed to show that these affiliates bear any of the burden of residual corporate overhead such as expenses for Shareholder Relations, Corporate Finance, Corporate Law, Governmental Affairs, Public Affairs, Relocation Coordination, Assistant to the President, Corporate Comptroller, Corporate Planning, Corporate Budget, etc. These expenses and others are all allocated to Rio under the Massachusetts Formula, but not to the affiliates.

III.

The foregoing discussion, a portion of Rio’s activities with respect to its parent company Valero and Valero’s other subsidiaries is outlined to show the burden that Rio had to carry throughout the hearing and, generally, the manner in which they chose to discharge that burden. We must also point out that there is an extensive record before us. The hearing took some five (5) days before the Commission, the transcript of testimony is in five volumes, and there are numerous exhibits in the record.

The judgment of the trial court is quite cursory leaving the appellants in a vexatious position on appeal with respect to the court’s findings and implied findings. At oral argument, appellee Rio’s able attorney stated that his core argument, or the gist of his case, centered on the refusal of the Commission to admit exhibits 27, 28, 36 and 41 which were the most critical exhibits. Giving Rio every benefit of every doubt it is impossible for us to conclude other than that the Commission was correct in the exclusions.

IV.

Appellee attempted to introduce into evidence exhibit 27, a document entitled “Total Distribution System Operations and Maintenance Expenses for Year 1982.” The examiner excluded the exhibit as hearsay. The appellee contends the evidence was improperly excluded because the exhibit was based upon official documents from the Commission’s records. However, the record reflects the documents were prepared by private individuals and simply filed with the agency. Tex.Rev.Civ.Stat. Ann. art. 3731a (Supp.1983), the provision governing official documents, is applicable only when the documents are prepared by public officials or employees under their supervision in the performance of their official duties. Consequently, exhibit 27 does not fall within this exception to the hearsay rule and therefore, was properly excluded.

Exhibit 28 consists of prepared rebuttal testimony of Wayne Drymala, a Rio witness. Lines 21 through 28 on page 8 and lines 1 through 5 on page 9 of the document make reference to the Federal Energy Regulatory Commission (“FERC”). This testimony included a quotation from a 1982 FERC report, statements regarding opinions issued by FERC, and a rate request of FERC. Appellee attempted to introduce these particular sections of the exhibit on the grounds that the witness was testifying from his own personal knowledge of accounting practices in the industry. The examiner correctly excluded this testimony on the basis that such testimony regarding the FERC report is hearsay. The statements were not proffered as opinions of an expert witness, but rather, as declarations of rulings promulgated by federal agencies. Additionally, the appel-lee did not attempt to offer the testimony in question for the limited purpose of bearing on its expert’s opinion.

Thereafter, upon the examiner’s exclusion of exhibit 28, the appellee attempted to introduce exhibit 36, a document entitled “FERC Staff Report on Interstate Gas Pipeline Ratemaking.” The examiner again excluded the exhibit on the basis of hearsay. According to appellee, the exhibit should have been admitted because the document was within the realm of material of which official notice could be taken. Additionally, appellee asserts the exhibit should have been admitted on the grounds that it bears upon the opinion of the expert witness. In response to the former contention, the Commission may take judicial notice of facts within the general area of the agency’s specialized knowledge. Exhibit 36, a copy of a cover page and an additional page of a report written by an unidentified author on the subject of the Massachusetts formula, is not within the Commission’s specialized knowledge and therefore, judicial notice would have been improper.

Addressing the second prong of appel-lee’s argument, the record indicates that no testimony was offered to authenticate the document nor to identify the writer of the report in order to determine his qualifications. Consequently, the exclusion of the exhibit under the hearsay rule was valid.

Finally, the examiner excluded from evidence on the basis of hearsay exhibit 41, a letter from Arthur Anderson & Co. to Valero Energy Co. According to appellee, this letter should have been admitted into evidence under the business records exception to the hearsay rule. Tex.Rev.Civ.Stat. Ann. art. 3737e (Supp.1983). However, the record reflects the letter was not prepared in the regular course of business, as required by the business record exception, but rather, was specially prepared for the proceeding itself. Therefore, the examiner correctly ruled against the exhibit’s admission.

Assuming arguendo, that the exhibits should have been admitted into evidence, the exclusion of such exhibits still would not have caused any prejudice to the appellee in that they did not address the issue in dispute as to whether the supplying affiliate was charging more to Rio than it was charging other affiliates. A case cited by appellee, Lewis v. Metropolitan Savings & Loan Association, 550 S.W.2d 11 (Tex.1977) most aptly states the law:

"... If it appears that the excluded evidence could not materially have affected the outcome of the case — if a remand to receive and consider the evidence improperly excluded would amount to nothing more than ‘a postponement of the inevitable’ the error committed is not prejudicial. ..”

Y.

In addition to the above, should the ap-pellee be correct in its assignment of error to any of the evidentiary points discussed above, we hold that the error was harmless under Rule 434, Tex.R.Civ.P.

The judgment of the trial court is reversed and judgment herein rendered reinstating the Commission's-order.

      . Tex.Rev.Civ.Stat.Ann. art. 1446c.

      . Cities of Alamo, Alton, Brownsville, Combes, Donna, Edcouch, Edinburg, Elsa, Harlingen, Hi-dalgo, La Feria, Laguna Vista, La Villa, Los Fresnos, Lyford, McAllen, Mercedes, Mission, Palm Valley, Pharr, Port Isabel, Primera, Ran-cho Viejo, Raymondville, Rio Hondo, San Benito, San Juan, Santa Rosa, and Weslaco, Texas.


author: RALEIGH BROWN, Justice.

text:
    Diane Marie MATTIAS, Appellant, v. STATE of Texas, Appellee.
    No. 11-84-136-CR.
    Court of Appeals of Texas, Eastland.
    Dec. 13, 1984.
    Mike McCollum, Law Offices of Mike McCollum, Dallas, J. Thomas Sullivan, Director, and Pamela B. Aymond of SMU Appellate Clinic, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is an appeal from a conviction of the offense of misdemeanor prostitution wherein appellant was found guilty by the court of knowingly agreeing to engage in sexual conduct with another for a fee. Punishment was assessed by the court at a fine of $1 probated for one day.

The offense of prostitution is defined in TEX.PENAL CODE ANN. sec. 43.02 (Vernon Supp.1984):

(a) A person commits an offense if he knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or
(2) solicits another in a public place to engage with him in sexual conduct for hire....

Appellant was employed by a modeling agency to do nude and lingerie modeling. An undercover Dallas Police Vice Officer called the agency and requested that two girls be sent to a designated condominium. Appellant and another model responded to the call. On arrival at the location, the two immediately felt unsafe in the situation with the police officers, one a male and one a female, since there were beer cans strown around the room and the door was bolt locked immediately on their entrance. Because of such fear, the other model stated their fee, doubling same, telling the officers that the fee would be $65 for the agency and $200 per hour for each girl. She testified that by doubling the modeling tip she “figured that $530 and nobody is going to pay that so (they could) get out of there.”

The male officer stated that the female officer wanted to be with a girl and he wanted a head job. The other model repeated that her tip was $200 and appellant stated, “I got $250.” The two models were then arrested. The other model was acquitted on her jury trial.

Appellant testified that the reason she said “I want $250” in response to the male officer’s statement was not with the intention of actually agreeing to engage in sexual conduct or of ever “giving a head job,” but rather to “get out of there.”

Appellant was charged that she did unlawfully “then and there knowingly offer to and agree with (male undercover officer)

... to engage in sexual conduct .'.. for a fee.”

The thrust of appellant’s challenge on appeal regards the failure of the evidence to establish culpable mental state which under the statute is “knowingly.” TEX. PENEL CODE ANN. sec. 6.03 (Vernon 1974) defines such culpable mental state as:

(b) A persons acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result....

The offense may be committed if appellant knowingly offered to engage, or agreed to engage, or engaged in sexual conduct for a fee.

The trial judge made the following- findings of fact:

1. The conversation regarding sexual contact was initiated by the male police officer.
2. That the defendant in an attempt to find a way out of the apartment replied, “I get two-fifty for that.”
3. The defendant intended to convey to the officer that a contract was made so that she could get to use the telephone although the defendant never intended to consummate the contract committing the sexual act.
The Court specifically finds that the intent of the defendant to convey a contract had been entered into even absent the intent to fulfill the act met the “knowingly” requirement.

Although it is clear that the appellant said the words, we hold that the finding by the court that she never intended to commit a sexual act and that the words were said in an attempt to find a way out of the apartment negated a culpable mental state of “knowingly” offering or agreeing to engage in sexual conduct. Therefore, the trial court’s finding that she never intended to consummate the contract is in conflict with, and does not support, her conviction of the offense of prostitution. The judgment of conviction is reversed and an acquittal entered. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).


author: UTTER, Justice.

text:
    Guadalupe Lara GONZALEZ, Appellant, v. STATE of Texas, Appellee.
    No. 13-82-285-CR.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 13, 1984.
    Joseph Connors, III, McAllen, for appellant.
    Rene Guerra, Ted Hake, Asst. Dist. At-tys., Edinburg, for appellee.
    Before NYE, C.J., and UTTER and YOUNG, JJ.
   OPINION

UTTER, Justice.

Following remand of this case from the Texas Court of Criminal Appeals, we reform and, as reformed, affirm the judgment of the trial court.

Appellant was initially adjudged guilty of the offense of burglary of a building on September 18, 1980, in Cause Number CR-622-80-B in the 93rd District Court of Hi-dalgo County, Texas, and was assessed punishment at three years in the Texas Department of Corrections and a $750.00 fine, probated for five years. Subsequently, the State filed in the trial court its application to revoke appellant’s five-year probation. After a hearing on February 4, 1981, the trial court revoked the five-year probation and sentenced appellant to three years in the Texas Department of Corrections. On June 10, 1981, the trial court, upon its own motion, suspended further execution of appellant’s three-year sentence and placed appellant on “shock probation” for three years pursuant to TEX. CODE CRIM.PROC. art. 42.12 § 3e (Vernon Supp.1984).

On June 15, 1982, the state filed in the trial court its application to revoke appellant’s three year probation. Following a hearing on the application on July 23, 1982, the trial court found that all of the allegations of violations of the terms and conditions of appellant’s three-year probation in the application were “true.” The trial court then granted appellant his request for a ten-day delay before imposition of sentence.

On August 2, 1982, the trial court ordered that appellant’s three-year probation be revoked and assessed punishment at three years in the Texas Department of Corrections. On August 9, 1982, the trial court signed the written sentence, which stated:

IT IS THE FUTHER (sic) ORDER of the Court that the Sentence given the Defendant in this above entitled Cause run consecutively with the Five (5) year Sentence given Defendant in Cause Number CR-392-82-B, styled THE STATE OF TEXAS VS. GUADALUPE GONZALEZ. Defendant, GUADALUPE LARA GONZALEZ gave Notice of Appeal on July 23, 1982 and on August 2, 1982.

On January 14,1983, the trial court entered a nunc pro tunc order revoking probation, which stated:

IT IS THE FUTHER (sic) ORDER of the Court that the Sentence given the Defendant in this above entitled Cause run consecutively with the Five (5) year Sentence given Defendant in Cause Number CR-392-82-B, styled THE STATE OF TEXAS VS. GUADALUPE GONZALEZ. Defendant, GUADALUPE LARA GONZALEZ gave Notice of Appeal on July 23, 1982 and on August 2, 1982., and on Jan. 14,1983. Defendant is hereby given credit for 226 days he has already spent in jail as of August 2, 1982.

The other cause, Cause Number CR-392-82-B, in which appellant was previously convicted by a jury in the same trial court of aggravated assault with a deadly weapon and was assessed a five year sentence, has already been before this Court. Gonzalez v. State, 659 S.W.2d 470 (Tex.App.— Corpus Christi 1983, pet. ref’d.).

On appeal of the instant case, our Court of Appeals found that the trial court committed no error and affirmed the judgment of the trial court. 664 S.W.2d 797. On petition for discretionary review, the Texas Court of Criminal Appeals in Cause Number 263-84 (Tex.Crim.App. July 18, 1984) (not published) held (1) that, under O’Hara v. State, 626 S.W.2d 32 (Tex.Crim.App. 1981), the cumulation orders in the order revoking probation and in the nunc pro tunc order revoking probation, which cumu-lated the three-year sentence in the instant case and the five-year sentence in Cause Number CR-392-82-B, were improper and (2) that the other issues presented in appellant’s petition for discretionary review were without merit. The case was then remanded for our Court’s disposition after reconsidering appellant’s challenge to the cumulation orders in light of O’Hara v. State.

In his fourth and fifth ground of error, appellant argues that, because a part of appellant’s original five-year sentence for the conviction of burglary of a building had already begun and had been served, the trial court was prohibited by law from ordering the reinstated three-year sentence to run consecutive to appellant’s five-year sentence in the other cause, Cause Number CR-392-82-B. We agree that, under O’Hara v. State, such cumulation orders were improper and that said orders are null and void and of no legal effect. We note the following language found in O’Hara v. State:

When a court grants shock probation under the provisions of Art. 42.12, Sec. 3e, V.A.C.C.P., it suspends the execution, rather than the imposition of the sentence. The defendant actually serves a portion of the sentence. The convicting court may then suspend the execution of the remainder of the sentence.
We have held that a court may not add a cumulation order onto a sentence already imposed after a defendant has suffered punishment under the sentence as originally imposed. Such an attempted cumulation order is null and void and of no legal effect. Ex parte Voelkel, 517 S.W.2d 291 (Tex.Cr.App.1975); Ex parte Brown, 477 S.W.2d 552 (Tex.Cr.App.1972); Ex parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1971).
We find these cases to be controlling when probation is revoked after a defendant has been placed on shock probation. Since a defendant must actually serve a portion of his sentence before being placed on probation pursuant to Art. 42.12, Sec. 3e, Y.A.C.C.P., upon the revocation of that probation the convicting court has no power to cumulate any sentence not originally ordered to be served cumulatively. The cumulation order of the trial court in Cause No. 16263 (our Cause No. 68,533) must be set aside.

O’Hara v. State, 626 S.W.2d at p. 35. Appellant’s fourth and fifth grounds of error are sustained.

In light of our disposition upon reconsideration of appellant’s fourth and fifth grounds of error, we need not reconsider appellant's second and third and sixth through eighth grounds of error, wherein he challenges the sufficiency of the trial court’s oral pronouncement of cumulation and the requisites for a proper cumulation order.

For the reasons stated above, the cumu-lation orders in the instant case are set aside. In all other respects, the judgment of the trial court is AFFIRMED.


text:
    SELKIRK ISLAND CORP., Appellant, v. M.H. STANDLEY, et al., Appellees.
    No. 13-83-484-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 13, 1984.
    Rehearing Denied Jan. 3, 1985.
    Barry G. Flynn, Houston, for appellant.
    Robert LeBoeuf, Angleton, Wade Williams, Galveston, for appellees.
    Before UTTER, YOUNG and GONZALEZ, JJ.
   OPINION

UTTER, Justice.

This is an appeal from a summary judgment granted in favor of appellees, defendants below. We affirm the judgment of the trial court.

Initially, appellant brought suit against appellees in trespass to try title, alleging that it owned the riverbed of a certain man-made section of the Colorado River upon which appellees each built piers extending from their respective riverside properties. The section of the Colorado River in question flows through what is commonly known as Right-of-Way Tracts Nos. 44A and 44B. In a combined Right-of-Way and Spoil-Easement Deed, (“easement deed”) dated February 17, 1960, and recorded February 23, 1960, Wyatt 0. Selkirk, the parties’ common source of title, granted a perpetual easement to Matagor-da County to use Right-of-Way Tracts Nos. 44A and 44B to construct, maintain and improve a new man-made watercourse for the Colorado River. Right-of-Way Tracts Nos. 44A and 44B were originally part of the western portion of Lot 4 of the Selkirk Island Subdivision.

At the time of trial, appellant owned Lot 4 of the Selkirk Island Subdivision, the unsubmerged part of which is located on the east side of the Colorado River; whereas, appellees owned respectively Lots 51 and 53 of the Exotic Isle Subdivision, the unsubmerged part of which is located on the west side of the Colorado River, adjacent to Lot 4 of the Selkirk Island Subdivision.

Both appellees claim their title to their respective riverside properties through a Warranty Deed (“warranty deed”), dated June 11, 1969 and recorded June 16, 1969, and a Correction Deed (“correction deed”), dated June 11, 1969 and recorded February 17, 1970. In said deeds, Wyatt 0. Selkirk, the parties’ common source of title, conveyed to T. Keith Schier a certain tract of land (“Exotic Isle”), which later became Exotic Isle Subdivision, wherein appellees’ riverside properties, Lots 51 and 53, are located.

At trial, appellant filed its Motion for Partial Summary Judgment, alleging that the summary judgment evidence established, as a matter of law, that appellees constructed their piers upon the riverbed of the Colorado River in Right-of-Way Tracts Nos. 44A and 44B, to which appellant owned fee title. Appellant alleged that it owned fee title to Lot 4 of the Selkirk Island Subdivision, including fee title to all of Right-of-Way Tracts Nos. 44A and 44B, by virtue of a Deed (“deed”) dated March 22, 1971 and recorded April 7, 1971. By said deed, Wyatt O. Selkirk conveyed Lot 4 to appellant “subject to” the warranty and correction deeds to T. Keith Schier and the easement deed to Matagorda County.

In response to appellant’s Motion for Partial Summary Judgment, appellees each filed written responses and motions for summary judgment. In their written responses and motions for summary judgment, each appellee alleged that, by virtue of the warranty deed and correction deed to T. Keith Schier, appellees’ predecessor in title, Wyatt 0. Selkirk, the parties’ common source in title, passed title to the center of the Right-of-Way easement and/or navigable stream, the Colorado River, by having conveyed fee title abutting said right-of-way and/or said navigable stream; therefore, as successors in title to T. Keith Schier to the riverside properties, Lots 51 and 53 of the Exotic Isle Subdivision, appellees, and not appellant, were the owners of the west half of riverbed upon which appellees built their piers. Appellees further alleged that appellant was without right to “control” appellees’ construction of the piers upon the navigable waters of the Colorado River, the control over which is vested in the State of Texas. After considering the summary judgment evidence, the trial court granted appellees’ motions for summary judgment and denied appellant’s motion for partial summary judgment.

In its first and third points of error, appellant, in essence, contends (1) that there existed a genuine issue of material fact regarding the ownership of the riverbed in question, and, alternatively, (2) that, as a matter of law, it was the owner of fee title to the entire riverbed in question.

By the warranty deed, Wyatt 0. Selkirk, the parties’ common source of title, conveyed to T. Keith Schier, appellees’ predecessor in title, fee title to Exotic Isle. The warranty deed particularly described the property conveyed in a metes and bounds description, which included certain course and distance calls (“meanders”) meandering “the West bank of the Dredged Channel.” Subsequent to and correcting the warranty deed, the correction deed was executed by Selkirk and Schier and recited that “the specific calls for course and distance in the metes and bounds description contained in said Deed were in error inasmuch as they did not fully enclose all of the surface area of the island to the shorelines thereof.... It is the desire of the said Wyatt 0. Selkirk and the said T. Keith Schier that the description in the original Deed ... be corrected.” The correction deed particularly described the property conveyed in a metes and bounds description, including course and distance calls “following the meander of the Westerly shore of the New dredged channel.” Both the warranty deed and correction deed were expressly made “subject to” the easement deed.

The summary judgment evidence contains the deeds to Lots 51 and 53 of the Exotic Isle Subdivision under which appel-lees received title to their respective riverside properties; however, neither the deeds or any other summary judgment evidence contains metes and bounds descriptions of Lots 51 and 53 showing the exact extent to which the lots extend towards the river or right-of-way easement. However, the affidavits of both appellees state that “My land borders the Colorado River which is the subject of a ‘Combined Right-of-Way and Spoil Disposal Easement’ granted to Matagorda County to use Right-of-Way tracts 44A and 44B.” (Emphasis added.)

Appellant argues that the warranty and correction deeds reflected a definite intent on the part of the grantor, Wyatt 0. Selkirk, to limit the conveyance to just the land specifically described by the course and distance calls in the metes and bounds description of the deeds; therefore, the trial court should have granted appellant’s Motion for Partial Summary Judgment. Alternatively, appellant argues that a fact issue existed regarding whether the parties to the warranty and correction deeds, under which appellees claim title, manifested an intention for the boundary line of the land conveyed to be anything other than according to the precise course and distance calls contained in the metes and bounds description of the correction deed; therefore, the trial court erred by granting appellees’ motions for summary judgment.

Appellees’ affidavit testimony that their land borders the river, without more, such as an adequate metes and bounds description, does not establish, as a matter of law, appellees’ claims to fee title of the west one-half of the riverbed of the Colorado River and/or the right-of-way easement to the center of said river and/or right-of-way easement. However, we hold that the summary judgment evidence established, as a matter of law, that, on June 11, 1969 (the date of the warranty deed and correction deed), fee title to the west one-half of the river was conveyed by Wyatt 0. Selkirk, the parties’ common source in title, to T. Keith Schier, appellees’ predecessor in title. When Wyatt 0. Selkirk conveyed by meander calls, the purpose of the meander calls contained in the deeds was clear; there was no fact question to be determined by a trier of fact, but the question of whether the “meanders” of the river, rather than the course and distance lines, constituted the boundary of the property was one of law for the court. Strayhorn v. Jones, 157 Tex. 136, 300 S.W.2d 623 (1957). No fact question on the matter was presented. Appellant’s first point of error is overruled.

The course and distance calls, which followed the “meanders” of the Colorado

River, in the warranty and correction deeds reflected that the property conveyed was bounded by the Colorado River, and not by the specific course and distance calls. Ibid, 300 S.W.2d at pp. 631-632. When a private person (including corporations, etc.) conveys titles of lands owned by him abutting a stream — whether navigable or not — such conveyance passes to the grantee (unless the conveyance clearly shows a contrary intention) title to the one-half of such stream bed abutting his land, subject, of course, to whatever rights the State of Texas may have in the stream bed. Ibid., 300 S.W.2d at p. 634; Moore v. Ashbrook, 197 S.W.2d 516 (Tex.Civ.App. — San Antonio 1946, writ ref’d). Since Wyatt 0. Selkirk, the parties’ common source of title, conveyed in the warranty and correction deeds the fee title to Exotic Isle owned by him abutting the Colorado River, such conveyances passed to the grantee, T. Keith Schier, appellees’ predecessor in title, title to the west one-half of the subject riverbed of the Colorado River. As a matter of law, appellant was not the owner of fee title to the entire riverbed. Appellant’s third point of error is overruled.

In its second point of error, appellant complains that the trial court improperly based the summary judgment upon its Conclusion of Law No. 2, which allegedly held that the State of Texas owned the subject riverbed, the Colorado River, a navigable stream.

The Colorado River is a recognized “navigable stream.” See TEX.NAT.RES. CODE ANN. § 21.001(3) (Vernon Supp.1984); City of Austin v. Hall, 93 Tex. 591, 57 S.W. 563 (1900); Natural Resort Communities, Inc. v. Cain, 479 S.W.2d 341 (Tex.Civ.App. — Austin 1972), rev’d and remanded on other grounds, 526 S.W.2d 510 (Tex.1975). Appellee argues that, because the Colorado River is a “navigable stream” and a “public river,” the riverbed is “property of the State” as provided in PARKS & WILDLIFE CODE ANN. § 1.011 (Vernon Supp.1984). However, unlike most “navigable streams” and “public rivers” with riverbeds owned by the State, the Colorado River was allowed to flow across the property in question by virtue of the right-of-way easement granted in the easement deed to Matagorda County. It is undisputed that, at the time of the easement deed, fee title to the Right-of-Way Tracts Nos. 44A and 44B was held by Wyatt O. Selkirk, the parties’ common source in title. Such private ownership of lands underlying “navigable streams” has been recognized previously by Texas courts. See Coastal Industrial Water Authority v. York, 532 S.W.2d 949 (Tex.1976) and cases cited therein. “It is clear from the cases, however, that submergence does not necessarily destroy the title of the owner.” Ibid, at p. 954. There is no summary judgment evidence that, subsequent to the time of the easement deed, fee title to the right-of-way tracts was ever conveyed to or condemned by the State; therefore, we hold, as a matter of law, that the State did not hold fee title to the land in question. If the import of the trial court’s Conclusion of Law No. 2 was that the State of Texas owned the subject riverbed, as alleged by appellant, such Conclusion of Law was erroneous.

However, since we have held above that there was a specified ground (i.e., that the title to the subject riverbed, upon which appellees built their piers, was not held by appellant) upon which appellees’ motions for summary judgment could have been properly granted, the trial court’s gratuitous conclusion of law, even if erroneous, would constitute harmless error because it did not result in the rendition of an improper judgment. TEX.R.CIV.P. 434. Appellant’s second point of error is overruled.

In its fourth point of error, appellant complains that there is no evidence to support certain of the trial court’s findings of fact and that the said findings were irrelevant and immaterial. We hold that the trial court’s findings of facts constituted harmless error. TEX.R.CIV.P. 434. Appellant’s fourth point of error is overruled.

The judgment of the trial court is AFFIRMED.

GONZALEZ, J., not participating.