text:
    BROOKS FASHION STORES, INC., Appellant, v. NORTHPARK NATIONAL BANK, Appellee.
    No. 05-84-00429-CV.
    Court of Appeals of Texas, Dallas.
    April 3, 1985.
    Rehearing Denied April 29, 1985.

      Patrick F. McManemin, Jane White, Dallas, for appellant.
    Nathan Allen, Jr., Dallas, for appellee.
    Before GUILLOT, DEVANY and WILLIAMS,
       JJ.

      . The Honorable Claude Williams, Chief Justice, Court of Civil Appeals, Fifth Supreme Judicial District of Texas at Dallas, Retired, sitting by assignment pursuant to TEX.REV.CIV.STAT. ANN. art. 1812 (Vernon Supp.1985).

   DEVANY, Justice.

Brooks Fashion Stores, Inc., sued North-park National Bank for loss of a bag of jewelry deposited with the bank. Brooks alleged violation of the Deceptive Trade Practices Act and later also claimed breach of contract and conversion. The trial court granted summary judgment for the bank based on the statutes of limitations. We agree that the summary judgment was proper with respect to the claims for deceptive trade practices and conversion, but we reverse and remand for trial of the cause of action for breach of contract.

I. Facts

Because Brooks appeals the trial court’s rendition of summary judgment, we accept as true all evidence tending to support its position. Fisher v. Beach, 671 S.W.2d 63, 66 (Tex.App.—Dallas 1984, no writ); Morgan v. Pool Co., 641 S.W.2d 370, 371 (Tex.App.—Dallas 1982, writ ref’d n.r.e.). Brooks, which owns several dress stores, maintains an outlet at Dallas’ Northpark Mall. On January 16, 1981, two Brooks employees placed certain jewelry items in a night deposit bag and delivered it to one of the tellers at the bank during normal business hours. The teller accepted the bag, agreed to keep it until Brooks requested it, and issued a written receipt. Six days later, the bank notified Brooks that the jewelry could not be located.

The bank then filed a claim with its insurer to reimburse Brooks for the jewelry’s value. Responding to the bank’s letter requesting information about the loss, a Brooks representative stated that the jewelry was removed from the store “solely for safekeeping.” In September 1981, the bank notified Brooks that it would not pay for the lost jewelry.

The following year, the supplier of the jewelry sued Brooks in Florida to recover its value. The record does not reveal this action’s outcome; however, on March 4, 1983, Brooks demanded in writing that the bank pay Brooks for the value of the jewelry and its legal expenses resulting from the jewelry’s loss. The bank refused and Brooks initiated the present suit on May 24, 1983, alleging that the bank breached express warranties and made false, misleading representations in violation of section 17.46(b) of the Deceptive Trade Practices — Consumer Protection Act. TEX. BUS. & COM.CODE ANN. § 17.46(b) (Vernon Supp.1985).

The bank answered with a general denial and the affirmative defense that limitations barred Brooks’ D.T.P.A. action. It later moved for summary judgment on the basis of this affirmative defense. Brooks then supplemented its petition to allege that the bank breached the night depository service contract and converted the jewelry. After filing the supplemental petition, Brooks responded to the bank’s summary judgment motion.

The trial court ordered a November 9 hearing on the motion. The record does not reflect whether the trial court entertained the bank’s motion on that date. Brooks did not contest the bank’s argument that trial court heard its motion on that date. Both agree that another hearing was held on January 10, 1984. On December 30, 1983, Brooks filed its first amended original petition alleging for the first time that the bank breached a bailment contract in addition to the breach of the night deposit contract, conversion and D.T.P.A. actions pleaded in its original and supplemental petitions. Four days later, Brooks filed its affidavit opposing the rendition of summary judgment. On January 10, 1984, the trial court again heard the bank’s motion and thereafter rendered summary judgment.

II. Issues and Evidence Presented

The bank contends that the trial court could not properly consider Brooks’ amended petition alleging for the first time that the bank breached an oral bailment contract or its affidavit opposing the summary judgment motion because both were filed after the November 9 hearing without the trial court’s permission. We disagree. The trial court’s judgment recites that it heard the motion on January 10,1984, rather than November 9, 1983. In the absence of a nunc pro tunc order, we must consider the hearing to have been held on the date recited in the judgment. Horne v. Charter National Insurance Co., 614 S.W.2d 182, 184 (Tex.Civ.App.—Fort Worth 1981, writ ref’d n.r.e.).

When January 10 is taken as the day of the hearing, the amended petition, filed December 30, was untimely under Dallas’ local rules. DALLAS CIY.CT.R. 1.9. Also, the opposing affidavit, filed January 7, was untimely under rule 166-A(c). TEX.R. CIV.P. 166-A(c). However, the bank did not file a motion to strike either of these documents, nor did the court strike them sua sponte. Consequently, the bank may not now contend that they were not properly before the trial court when it ruled on the bank’s motion. Jones v. Houston Materials Co., 477 S.W.2d 694, 695-96 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ); see also Amoco Production Co. v. Thompson, 657 S.W.2d 824, 827-28 (Tex.App.—Corpus Christi), rev’d on other grounds sub nom. Ideal Lease Service, Inc. v. Amoco Production Co., 662 S.W.2d 951 (Tex.1983).

The bank next argues that, even if the amended petition was timely filed, we could not reverse its summary judgment on the ground that limitations did not bar Brooks’ action for breach of an oral bailment contract because Brooks did not raise that issue in its response to the motion as required by Rule 166-A(c). This contention is without merit because a “non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment.” City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979) (emphasis in original).

Accordingly, even if Brooks had filed no response, it would still be entitled to argue on appeal that the bank’s motion is insufficient to show that the actions presented to the trial court were barred by limitations. Since the amended pleading was before the trial court, Brooks may contend on appeal that limitations did not preclude any cause of action alleged in its amended petition.

III. Limitations

We now turn to the issue of whether the bank’s grounds for summary judgment are insufficient as a matter of law to support the trial court’s judgment. This motion rested on two grounds. The bank first contended that, because Brooks’ action was for “detaining personal property ... or taking its goods and chattels, it ... must be brought within two years after the cause of action accrued.” TEX.REY.CIV.STAT. ANN. art. 5526 (Vernon Supp.1985). The bank also argued that Brooks’ D.T.P.A. claim was barred by section 17.56A of that act. TEX.BUS. & COM.CODE ANN. § 17.-56A (Vernon Supp.1985). The bank presented no other grounds supporting its motion.

A. Breach of Contract

In its first four points of error, Brooks argues that it had four years to bring suit because its action was based on the bank’s breach of either a bailment or deposit contract. In response, the bank argues that, if this transaction was a deposit, Brooks cannot sue on breach of the written night deposit contract because it is legally inapplicable to the transaction which gave rise to this lawsuit. The bank also argues that, if this transaction was a bailment rather than a deposit, Brooks has no breach of contract action because the promise, if any, to keep the jewelry was not supported by consideration.

The bank did not raise these contentions in its motion; therefore, we may not decide them because summary judgment cannot be supported on appeal by grounds not presented to the trial court in the motion. Roling v. McGeorge, 645 S.W.2d 886, 887 (Tex.App.—Tyler 1983, no writ); see also Vendig v. Traylor, 604 S.W.2d 424, 430 (Tex.Civ.App.—Dallas 1980, writ ref'd n.r.e.).

Brooks argues that placing the jewelry in the night deposit bag and leaving the bag in the bank’s custody constituted a “deposit” under the terms of either its night depository service contract with the bank or under its oral agreement with the teller. From this assertion, Brooks concludes that the limitations period specified by the statute governing suits for breach of a deposit contract should govern our decision whether its suit for breach of contract is barred by limitations.

TEX.REV.CIV.STAT.ANN. art. 342-701 specifies the limitations period in suits for breach of deposit contracts. The version of that article in effect in January 1981 provided that “[t]he contract of deposit between a bank and a depositor ... shall be deemed a contract ... within the purview of article 5527.... ” Texas Banking Code of 1943, ch. 97, ch. VII, art. 7, 1943 Tex. Gen.Laws 127, 157, amended by Act of June 15, 1971, ch. 947, § 2, 1971 Tex.Gen. Laws 2875, 2876, amended by Act of June 19, 1983, ch. 525, § 1, 1983 Tex.Gen.Laws 3056. Under article 5527, limitations bars a cause of action if suit is not filed within four years after the cause of action accrues. TEX.REV.CIV.STAT.ANN. art. 5527 (Vernon Supp.1985).

The bank argues that this version of article 342-701 is inapplicable to the present case because only negotiable instruments and cash, not tangible personal property, can be the object of a deposit contract. However, we need not decide whether this transaction is a “deposit” under that statute because the issue on appeal is not whether article 5527 or article 342-701 properly governs, but whether limitations under article 5526 precluded suit later than two years after the cause of action accrued. We hold that it does not.

“Actions for debt” must be “commenced and prosecuted within four years after the cause of action ... accrued.” TEX.REV. CIV.STAT.ANN. art. 5527 (Vernon Supp. 1985). The phrase, “actions for debt,” has been liberally construed to embrace actions for money damages for breach of contract, whether the contract was oral, Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 696 (1938); Walter A. Wood Mowing & Reaping Machine Co., 23 S.W. 384, 385 (Tex.Civ.App.1893, no writ), or written. International Printing Pressmen and Assistant’s Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729, 737 (1946); accord, Rose v. First State Bank of Paris, 122 Tex. 298, 59 S.W.2d 810, 811 (1933); Texarkana & Fort Smith Railway Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284, 286 (1932); Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40, 41-42 (1909); Robinson v. Varnell, 16 Tex. 382, 389-90 (1856); Miller v. Kountze Corporate School District, 54 S.W.2d 344, 348 (Tex.Comm’n App.1932, holding approved).

Before August 27, 1979, article 5526 barred suits for breach of oral contracts if not commenced within two years after the cause of action accrued, whereas the version of article 5527 then in effect allowed suits on written contracts up to four years after the cause of action accrued. However, the legislature eliminated the distinction between oral and written contracts when it amended both statutes. See Tex. H.B. 412, 66th Leg., 1979 Tex.Gen.Laws 1768. All reference to “actions for debt” was removed from article 5526 and is now contained only in article 5527 without any mention of contracts in writing or otherwise. TEX.REV.CIV.STAT.ANN. arts. 5526, 5527 (Vernon Supp.1985).

By its continued use of “actions for debt,” the. legislature presumably intended this phrase to convey the same meaning which the supreme court attributed to it in both of the previous limitation provisions. See Hart v. Winsett, 141 Tex. 312, 171 S.W.2d 853, 855 (1943). Since an action for damages caused by breach of contract is an “action for debt,” it is not barred by limitations until four years after the cause of action accrued. See Andrews v. Cohen, 664 S.W.2d 826, 829 (Tex.App.—Tyler 1984, writ ref'd n.r.e.). Accordingly, we sustain Brooks’ first four points of error by holding that article 5526 does not bar its breach of contract actions.

B. D.T.P.A. Violation

In its fifth point of error, Brooks also complains of the trial court’s summary judgment that the two year limitations provision in section 17.56A of the Act precluded its suit for D.T.P.A. violations. In support of this contention it cites Jim Walter Homes, Inc. v. White, 617 S.W.2d 767 (Tex.Civ.App.—Beaumont 1981, no writ); Jim Walter Homes, Inc. v. Castillo, 616 S.W.2d 630 (Tex.Civ.App.—Corpus Christi 1981, no writ); and Jim Walter Homes, Inc. v. Chapa, 614 S.W.2d 838 (Tex.Civ.App.—Corpus Christi 1981, writ ref’d n.r.e.). We find these cases inapplicable because all involved causes of action accruing before August 27, 1979, the effective date of section 17.56A.

Until section 17.56A was enacted, the D.T.P.A. contained no limitations provision. See Deceptive Trade Practices — Consumer Protection Act, ch. 143, § 1, 1973 Tex.Gen. Laws 322, amended by Act of April 24, 1975, ch. 62, § 1, 1975 Tex.Gen.Laws 149, amended by Act of May 23, 1977, ch. 216, § 1, 1977 Tex.Gen.Laws 600, amended by Act of June 13, 1979, ch. 603, § 1, 1979 Tex.Gen.Laws 1327, amended by Act of June 8, 1981, ch. 307, § 1, 1981 Tex.Gen. Laws 863, amended by Act of June 19, 1983, ch. 883, § 1, 1983 Tex.Gen.Laws 4943. Therefore, the courts relied on other statutes and case law to determine the applicable limitations period. Curry, The 1979 Amendments to The Deceptive Trade Practices—Consumer Protection Act, 32 BAYLOR L.REV. 51, 77 (1980); see, e.g., Miller v. Dickenson, 677 S.W.2d 253, 257-58 (Tex.App.—Fort Worth 1984, writ ref’d n.r.e.). Consequently, for those causes of action which arose from a written contract and accrued before August 27, 1979, the courts held that the version of article 5527 in effect at the time the cause of action accrued permitted suit up to four years later. Gibbs v. Main Bank of Houston, 666 S.W.2d 554, 558 (Tex.App.—Houston [1st Dist.] 1984, no writ); White, 614 S.W.2d at 771; Castillo, 616 S.W.2d at 633; Chapa, 614 S.W.2d at 840-41; Holified v. Coronado Building, Inc., 594 S.W.2d 214, 216 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ). For actions involving breach of oral contracts or fraud, the courts applied to D.T.P.A. litigation those limitations statutes governing the analogous actions at common law. See, e.g., Marcotte v. American Motorists Insurance Co., 709 F.2d 378, 379-81 (5th Cir.1983) (applying two year limitations statute to breach of oral contract suit); Castillo, 616 S.W.2d at 630 (applying discovery rule to determine when fraudulently concealed actions accrue).

In contrast, section 17.56A now provides:

All actions brought under this subchap-ter must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice. The period of limitation provided in this section may be extended for a period of 180 days if the plaintiff proves that failure timely to commence the action was caused by the defendant’s knowingly' engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone the commencement of the action.

TEX.BUS. & COM.CODE ANN. § 17.56A (Vernon Supp.1985) (emphasis added). Because the legislature must have known of the pre-existing limitations law, Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975), and intended every word of the new limitations provision to have meaning, Riverside National Bank v. Lewis, 603 S.W.2d 169, 173 (Tex.1980), we cannot agree with Brooks’ argument that this section permits a longer limitations period for D.T.P.A. claims arising from contracts than would apply to those violations not involving a contractual relationship. We must construe the law as written and ascertain the legislature’s intent from its language. Government Personnel Insurance Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529 (1952).

To ignore the plain meaning of the legislative mandate that “[a]ll [D.T.P.A.] actions” be brought within two years of the deceptive act would engraft upon this section an exception for which the legislature could have easily provided had it chosen to do so. We presume that the legislature intentionally excluded this exception since a contrary intention is not evident from the language of this section. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). Only when it is necessary to implement the legislature’s clear intent can we insert additional matter into a legislative provision. Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570, 572 (Tex.1971).

Apparently, the legislature’s intention was contrary to Brooks’ argument. At the same session in which section 17.56A was adopted, the legislature also amended articles 5526 and 5527 to provide a four-year limitations period for suits based on breach of either written or oral contracts. See Tex.H.B. 412, 66th Leg., 1979 Tex.Gen. Laws 1768; Tex.S.B. 357, 66th Leg., 1979 Tex.Gen.Laws 1327, 1332. If the legislature had intended to except D.T.P.A. suits involving breach of contract from the two year limitations period provided in section 17.56A, it is unlikely that at the same session it would have extended a four year limitations period for all breach of contract actions, whether oral or written.

If we accepted Brooks’ contention, section 17.56A would have little meaning. The D.T.P.A. only governs those transactions in which one “seeks or acquires by purchase or lease, any goods or services.” TEX.BUS. & COM.CODE ANN. § 17.45(4) (Vernon Supp.1985). Such transactions will usually involve either an express or implied contractual obligation. Under Brooks’ view, merely because the transaction involved a contractual relationship would be sufficient to allow D.T.P.A. litigants four years to sue notwithstanding the plain language of section 17.56A. Consequently, we hold that section 17.56A governs exclusively the limitations period applicable to D.T.P.A. suits.

We must next determine whether Brooks’ D.T.P.A. action was barred by that section. Brooks filed suit more than two years, but less than two years and 180 days, after the alleged deceptive act occurred. Under section 17.56A, a D.T.P.A. plaintiff may extend limitations for 180 days if he delayed his suit because of “defendant’s knowingly engaging conduct solely calculated to induce the plaintiff to refrain or postpone the commencement of the action.” TEX.BUS. & COM.CODE ANN. § 17.56A (Vernon Supp.1985). Therefore, summary judgment would have been improper if Brooks had raised an avoidance to the limitations plea and the bank did not conclusively prove the invalidity of Brooks’ attempt to avoid limitations’ bar. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975).

Brooks pleaded that “[i]n correspondence and telephone conversations through August 1981 Northpark indicated that it would reimburse ... [Brooks] for the value of the missing items.... ” In support of this allegation, Brooks introduced an opposing affidavit in which a Brooks representative states that he “had the understanding that Northpark ... was going to reimburse Brooks....” Brooks also relies on letters from the bank assuring Brooks that it would “stand behind its commitment to ... [Brooks] as a commercial customer” and requesting information necessary to process Brooks’ claim.

However, we find no allegation that the bank made these statements solely to delay Brooks’ suit. Because Brooks’ petition showed on its face that the claim was barred unless the suspension provision applied, the burden was on Brooks to plead facts which, if proved, would permit it to pursue the D.T.P.A. action even though filed more than two years after that action accrued. See Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 723 (1946); Owen v. King, 111 S.W.2d at 696 (concerning equitable estoppel to assert limitations defense); see also “Moore” Burger v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.1973) (holding that although the plaintiff does not, as in the present case, properly or specifically name the theory relied upon, it is raised if he pleads facts making the concept applicable). Alternatively, Brooks was at least required to generally allege this suspension provision to avoid the bar of limitations. See Zale Corp. v. Rosenbaum, 520 S.W.2d at 891.

We find that Brooks did neither. The record reveals no mention of the suspension provision in section 17.56A. Although Brooks alleged that the bank “indicated” that it would repay the loss, it did not assert that the bank’s purpose for making this suggestion was to delay Brooks’ filing this suit. Consequently, the facts alleged by Brooks do not raise all the statutory elements necessary to invoke the provision suspending for 180 days the running of limitations.

Thus, the bank was not required to present summary judgment evidence conclusively disproving that its conduct postponed the commencement of the limitations period for this D.T.P.A. action. Since Brooks did not allege this provision or facts sufficient to make it applicable, it cannot now contend that summary judgment was improper because the bank’s motion was insufficient as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d at 678. Further, Brooks cannot raise the suspension provision for the first time on appeal since rule 166-A(c) precludes reversal on any ground not expressly presented for the trial court’s consideration. TEX.R.CIV.P. 166-A(c). Accordingly, we overrule Brooks’ fifth point of error and affirm that portion of the trial court’s judgment which holds that section 17.56A barred Brooks’ D.T.P.A. cause of action.

C. Conversion

In its final point of error, Brooks attacks the trial court’s summary judgment that limitations barred its conversion action because it contends that a material issue of fact existed concerning when its cause of action accrued. Although Brooks concedes that the limitations period for conversion is two years under TEX.REV.CIV.STAT. ANN. art. 5526 (Vernon Supp.1985), it argues that, under the discovery rule, its cause of action did not accrue more than two years before it commenced this litigation. We disagree.

The discovery rule, which ordinarily applies where the plaintiff is unable to discover the injury even though he has exercised due diligence, prevents the cause of action from accruing until the plaintiff knew of the injury or reasonably could have discovered it. Weaver v. Witt, 561 S.W.2d 792, 793-94 (Tex.1977). Brooks admits that, when it requested the bag’s contents in January 1981, it was notified by the bank that the jewelry could not be located. Accordingly, we hold that the discovery rule does not apply to the facts of this case.

The real thrust of Brooks’ argument is that the bank’s conduct estopped the bank from being able to assert the limitations defense. Brooks relies on the same pleadings and opposing affidavit discussed above in connection with the D.T. P.A. suspension provision. Because Brooks’ pleadings show on their face that the suit for conversion was filed more than two years after the cause of action accrued, Brooks was required to plead an avoidance to the bar of limitations. See Luting Oil & Gas Co. v. Humble Oil & Refining Co., 191 S.W.2d at 723. Brooks’ pleadings do not mention the estoppel doctrine; therefore, we must determine whether they present facts that would, if true, avoid the bank’s limitations defense. “Moore" Burger v. Phillips Petroleum Co., 492 S.W.2d at 936.

The doctrine of equitable estoppel was designed to protect those whom the opposing party misleads. Davis v. Allison, 109 Tex. 440, 211 S.W. 980, 984 (1919); accord, Kuehne v. Denson, 148 Tex. 54, 219 S.W.2d 1006, 1009 (1949); Seay v. Diversified, Inc., 382 S.W.2d 518, 521 (Tex.Civ.App.—Amarillo 1964, writ ref’d n.r.e.). Accordingly, one seeking to invoke the doctrine must allege that he was unaware of the true facts; that the other party, with actual or constructive knowledge of the true facts, materially misrepresented or concealed these facts intending him to rely on the misrepresentation or concealment; and that his reliance prejudiced him. See O ’Dowd v. Johnson, 666 S.W.2d 619, 621 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (citing Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952)).

At best, the affidavit and attachments thereto show that the bank filed an insurance claim for the lost jewelry and that Brooks expected to be reimbursed. Nothing in the record suggests that the bank intended to mislead Brooks on the basis of facts known to it and unknown to Brooks. Consequently, we hold that Brooks did not raise the estoppel issue to avoid the bank’s limitations defense. Therefore, the bank was not required to address this issue in its motion. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d at 678. Accordingly, we hold that the trial court did not err when it granted the bank’s motion for summary judgment against Brooks’ cause of action for conversion.

The trial court’s judgment that the causes of action for conversion and violation of the D.T.P.A. are barred by limitations is affirmed. The trial court’s judgment that limitations barred Brooks’ breach of contract action is reversed and the cause remanded for trial on that issue. Costs of this appeal are taxed one-third against Northpark National Bank, appellee, and two-thirds against Brooks Fashion Stores, Inc., appellant.

      . The bank objected to this statement in Brooks’ brief on the ground that Brooks neither pleaded nor presented evidence that the bank issued a receipt in the trial court. This objection is mer-itless because the second paragraph of Brooks’ original petition plainly alleged that the bank issued a receipt. Accordingly, we accept that statement as correct. TEX.R.CIV.P. 419.

      . Although Brooks admits that it was notified "several days” after delivering the jewelry to the bank, it did not state the specific date in its brief. However, in an affidavit supporting the summary judgment motion, the bank claimed that on January 22, 1981, it informed Brooks that the jewelry could not be located. Since Brooks does not contest this statement, we assume it to be correct for the purpose of this opinion.

      . Hereinafter referred to as D.T.P.A.

      . The 1983 amendments to article 342-701 did not affect its provision that a cause of action for breach of a deposit contract does not accrue until the bank notifies the depositor that it has denied liability. See TEX.REV.CIV.STAT.ANN. art. 342-701 (Vernon Supp.1985); see also Texas Banking Code of 1943, ch. 97, ch. VII, art. 7, § 2, 1971 Tex.Gen.Laws 2875, 2876 (amended 1983). In contrast, a cause of action for breach of contract generally accrues on the date of the breach. Hurbrough v. Cain, 571 S.W.2d 216, 221 (Tex.Civ.App.—Tyler, no writ); Shipp v. O’Dowd, 454 S.W.2d 845, 847 (Tex.Civ.App.—Waco, writ ref'd n.r.e.). However, the distinction between the general rule and article 342-701 is immaterial in the present case because it is undisputed that Brooks filed suit within four years of the earliest date that contract, if any, could have been breached. Consequently, we need not decide whether only money or negotiable instruments can be the subject of a deposit contract for the breach of which article 342-701 would delay the accrual of a cause of action.

      . Brooks does not question, and we do not decide, whether the legislature may constitutionally limit the amount of time a defendant’s acts intended to delay plaintiffs suit may toll the limitations period. Cf. Neagle v. Nelson, 685 S.W.2d 11 (Tex.1985) (holding unconstitutional TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp.1985) which purported to establish an absolute two-year limitation period for medical malpractice actions).


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    Earl Wayne POLVADO, Appellant, v. STATE of Texas, Appellee.
    No. A14-83-661CR.
    Court of Appeals of Texas, Houston (14th Dist.)
    April 11, 1985.

      H.P. Brelsford, Houston, for appellant.
    John B. Holmes, Dist. Atty., Lori B. Mill-berg, Asst. Dist. Atty., Houston, for appel-lee.
    Before J. CURTISS BROWN, C.J., and CANNON and ELLIS, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

The appellant was convicted by a jury of the offense of aggravated rape of a child. The jury assessed punishment at ten years in the Texas Department of Corrections. Appellant brings thirteen grounds of error on appeal. We reverse and remand for a new trial. We discuss only those grounds of error which bear upon an issue requiring reversal. Those grounds of error not specifically discussed have been judged to lack merit and are overruled.

M_T_, the complainant, was seven years old at the time of the alleged offense, July 30, 1982. She resided in the home of the appellant, her stepfather, together with her brother and her mother, Carol Polvado, appellant’s wife. The alleged offense took place the day before the complainant and her brother left appellant’s house to stay with their natural father and his present wife for the summer. Their natural father and natural mother were divorced in 1977.

The complainant testified that on that day appellant called her into his bedroom and closed the door. She further testified that he took off her pants and also his pants, laid her face down on the bed and performed intercourse with her from a standing position. She testified that he had previously done that or something like that at least five times.

Her brother, who was ten years old at the time of trial, also appeared as a witness. He testified that from his vantage point in the living room he saw his sister with appellant in appellant’s bedroom. He said further that the door to the room had been closed and that his sister and appellant had come out of the room after about five minutes. At a later point in the trial defense counsel attempted to bring up certain accusations the brother made that he, too, had been sexually molested by the appellant, and that these accusations had proved unfounded. It appears that these allegations had been the basis of a separate prosecution of the appellant which the State dismissed. The court promised to review any available legal and medical records stemming from this separate set of allegations but the matter, having been deemed a collateral matter by the court, never came to the attention of the jury.

Evidently the accusations by the brother first surfaced at about the same time as the complainant first told her natural father and his wife Marceldine the things that appellant had allegedly done to her. Complainant and her brother had already left appellant’s house and had been staying with their natural father for one week. Marceldine had observed that complainant’s underwear became badly stained each day by a vaginal discharge. The discharge persisted, and upon hearing from the complainant of the alleged offense took her to the Pasadena police station. They met there with Sergeant E.E. Richardson. Charges were then filed against the appellant.

The child was also taken to be examined by a physician, Dennis Yaworski. Dr. Ya-worski appeared at trial. He testified that upon examining the complainant he had made a diagnosis of a haemophilus infection, which is so rare among pre-pubertal females that where it appears there should be a high degree of suspicion of sexual abuse.

Several months after the alleged offense occurred the complainant and her brother began visiting their mother again. During these visits they made several tape recordings. These tapes contain a mixture of singing, spontaneous nonsensical utterances, and clear, categorical statements to the effect that no sexual offense had occurred, that their stepfather had done nothing to them, that they did not want appellant to go to jail, and that their natural father had forced them to make the accusations of sexual abuse against appellant.

Each child was questioned about the tapes at trial. Both admitted making them, but both claimed that their mother had forced them to make the tapes even though the allegations were true.

In ground of error three appellant contends that the trial court erred in allowing the complainant and her brother to testify that their mother, Carol Polvado, had coerced them into making the three tapes in which they state that appellant had done nothing. He points out that she was indicted and tried for the offense of tampering with a witness in connection with the making of the tapes and was acquitted. In view of the result in the jury-tampering case, appellant argues that the doctrine of collateral estoppel should have been applied to bar all testimony that the mother had manipulated the children into making the tapes. The Court of Criminal Appeals has defined collateral estoppel, as it applies to criminal matters, as follows:

“Collateral estoppel ‘means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App.1981), quoting Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (emphasis added).

This case is not between the same parties as were involved in the prosecution of Carol Polvado. We decline appellant’s invitation to attempt to extend the principle of collateral estoppel beyond its present boundaries. Appellant’s third ground of error is overruled.

In a related point, appellant in his fourth ground of error contends that once the State broached the issue of whether the children had been coerced into making the tapes, the jury should have been allowed to hear the tapes to judge for itself whether the allegations of coercion were true. We agree. The tapes in question were among the most important means by which appellant attempted to mount his defense. Obviously in a criminal prosecution there can be no substitute equal in value to a direct contradiction of the defendant’s guilt made in his accuser’s own words. We think that the exclusion of the tapes was error “calculated to injure the rights of [the] defendant” and resulted in an unfair trial. It therefore mandates reversal.

The State had presented several theories which, if applicable, would persuade us to overrule this ground of error. First the State argues that appellant’s ground of error is multifarious because appellant complains of the exclusion of many separate statements on three different tapes. TEX.CODE CRIM.PROC. art. 40.09 § 9 (Vernon Supp.1985), which governs the form of appellant’s briefs on appeal, provides as follows:

“Each ground of error shall briefly refer to that part of the ruling of the trial court ... in such a way so that the point of objection can be clearly identified and understood by the court.”

We clearly understand appellant’s point of objection regarding the tapes: he says the jury should have heard them. We think that appellant has complied with Article 40.09 in this regard.

If the only form of impeachment of the two child witnesses for which appellant sought the introduction of the tapes were that of establishing the truth of the exonerating statements therein, then we would require greater specificity from the appellant as to which statements in the tapes should have been admitted. But appellant had two conceptually different goals in mind when he sought to introduce the tapes. First, he surely hoped that the jury might believe the statements therein exonerating him.

Just as importantly, however, he also sought to introduce the tapes to rebut the State’s contention that the children had been coerced into making them. Viewed from this perspective, the mixture of different types of utterances in the tapes serves the purpose of one unit of evidence which is not multifarious. Under the principle that the jury is the sole judge of the credibility of the witnesses, Minx v. State, 615 S.W.2d 748, 749 (Tex.Crim.App.1981), the jury cannot be expected to fairly evaluate the credibility of the children on the coercion issue if it is deprived of the means best calculated to aid them in doing so.

Contrary to the State’s contention, appellant did not fail to lay a proper predicate for the introduction of the tapes. Once again we must distinguish between the two purposes for which appellant sought to introduce the tapes. If the only purpose would have been to impeach the children on the truth of their accusations against appellant, the State would have reason to claim that appellant’s right to introduce the tapes vanished when the children first admitted making the statements therein, thus destroying the “denial” predicate for admissibility. See Ellingsworth v. State, 487 S.W.2d 108, 112 (Tex.Crim.App.1972).

But the denial predicate existed on the coercion issue throughout the trial. The children unequivocally stated that their mother had coerced them into making the tapes. That suffices to establish the denial basis of admissibility as required by Ellingsworth. Also, the State’s claim of the insufficiency of appellant’s predicate as to the time, place, and circumstances of the tapes is without foundation. The children appeared to fully understand what tapes appellant’s counsel was referring to during cross-examination. Finally, the exclusion of the tapes is not harmless error. Appellant’s fourth ground of error is sustained.

Having so held, we also sustain appellant’s eleventh ground of error, which complains of the trial court’s refusal to allow appellant to question the witness (Sergeant) Richardson to testify as to his impressions of the physical appearance of the two children when he saw them the day after their mother had allegedly hit them to make them testify falsely in a tape recording. Given that the State first elicited the children’s testimony that they had been hit, appellant should have been allowed to ask Richardson whether he remembered seeing any signs of physical abuse in the children the day he saw them.

We also sustain ground of error number five. The complainant’s brother testified at trial on behalf of the state. Appellant attempted to cross-examine his stepson (complainant’s brother) concerning allegations the brother had made against him, namely that appellant had sexually abused him (the brother) as well as the complainant. These accusations had formed the basis of separate charges of the appellant which were dropped by the State before trial. In ground of error five appellant complains of the court’s refusal to permit appellant to cross-examine the boy as to whether these other allegations were baseless.

The outcome of this question depends on whether we regard the brother’s separate allegations as collateral, and therefore not a proper subject for cross-ex-animation under Hoffman v. State, 514 S.W.2d 248 (Tex.Crim.App.1974), or as admissible as a prior accusation under Thomas v. State, 669 S.W.2d 420 (Tex.App.—Houston [1st Dist.] 1984, pet ref’d). Hoffman states the general rule that a witness may not be cross-examined as to any fact which is collateral and irrelevant to the main issue at trial. See Hoffman at p. 252. The test as to whether a matter is collateral is whether the cross-examination party would be entitled to prove it as a part of his case tending to establish his plea. Arechiga v. State, 462 S.W.2d 1, 2 (Tex.Crim.App.1971).

In conducting this inquiry we are mindful that no charge is more easily made and more difficult to disprove than a sex charge, particularly if made by a young child. People v. Hurlburt, 166 Cal.App.2d 334, 333 P.2d 82, 85 (1958). From the very character of the offense involved the jury often has very little to go on in such cases. They may have nothing more than the testimony of a young child and the denials of the defendant. Id. at 87-88. We hold that the separate allegations of sexual misconduct made by the boy are not collateral to the main issue at trial. The boy’s separate allegations, if proved false, would cast doubt on the complainant’s credibility. Thomas v. State, 669 S.W.2d at 423. First, it would cast doubt on the boy’s initial testimony corroborating the complainant’s testimony. With the support of such corroboration removed, complainant’s testimony might be received differently by the jury. Second, the falsity of the boy’s allegations, if shown, would reduce the probability that the proximity of appellant to the complainant, his opportunities to be alone with her, and his paternal control over her enabled or prompted him to rape her, since all these enabling factors existed in connection with the stepson also.

Finally, the falsity of the boy’s allegations, if proved, would be admissible as indirect evidence of appellant’s good character. An accused is allowed to introduce evidence of a specific good character trait to show that it is improbable he committed the offense charged, where that character trait is involved in the offense. Thomas v. State at p. 423. Since appellant would have been able to prove the falsity of related accusations as part of his case tending to establish his plea of innocence, the boy’s allegations are not collateral and cross-examination on this matter should have been permitted. Arechiga v. State, 462 S.W.2d at p. 2. Appellant’s fifth ground of error is sustained.

Appellant contends in his sixth ground of error that the court erred in not allowing him to cross-examine the father as to previous threats the father made against him and the defendant’s wife. The theory of the case consistently advanced by appellant at trial was that the children’s natural father had arranged for the children to make false accusations of sexual abuse against the appellant. In support of this theory he tried to develop a background of testimony from various witnesses showing that the father had a strong animosity against his ex-wife and against appellant. Much of the testimony appellant sought to introduce in connection with the stormy pattern of relations between the natural father and the appellant and his wife was allowed in. Testimony was allowed, for example, explaining that while prior to the allegations of sexual abuse being made, appellant’s wife had had custody of the children, after the allegations were made, largely due to those allegations, the natural father gained custody of the children in contemporaneous litigation. Also, the children admitted on cross-examination that on several occasions they had told their mother that their father had forced them to make the allegations against the appellant.

Outside the presence of the jury, however, the father denied (on cross-examination) having made threats to “get even” with appellant and his wife for having taken him to court for failure to pay child support. He did admit that appellant and his wife obtained a judgment against him in a child support action. During this questioning the father also denied having made a previous allegation of sexual abuse against appellant. The jury was not allowed to hear this exchange.

Great latitude should be allowed the accused to show a witness’ bias or motive to falsify his testimony. Carillo v. State, 591 S.W.2d 876 (Tex.Crim.App.1979). It is also true, however, that the trial judge has discretion over the extent to which a witness may be cross-examined on a collateral issue. Id. We think that the trial judge acted within his discretion in ruling on the admissibility of this evidence. We therefore overrule this ground of error. On retrial, however, the court should not unduly restrict appellant’s attempt to develop this testimony. It is an elementary axiom of the adversary system that a party “establishes his plea” by offering a theory, explanation, or analysis of the facts of the case different from that of his opponent. The State introduced the father as a witness whose motive for bringing the complainant to the police station after discovering her discharge was an honest belief that she had been violated. On retrial, appellant should be allowed to fully develop his own theory of the father’s motivation. This theory appears to be “part of his case tending to establish his plea” that the accusations were engineered. Arechiga v. State, 462 S.W.2d 1, 2 (Tex.Crim.App.1971).

Appellant complains in his eight ground of error that the State withheld exculpatory evidence. Specifically he contends that the State withheld the prosecutor’s file in cause number 361527 in which appellant was charged with the sexual abuse of his stepson, including the results of a medical examination of the boy conducted after he had accused appellant of sexually abusing him. Appellant further contends that these records would show that the results of the medical examination were inconsistent with the possibility that the boy had been sexually abused.

The sealed file we received with the record on appeal contains for the most part documents relating only to cause number 361526, which is the case before us now. A few documents relate to both cause numbers 361526 and 361527. The record does not contain any medical records of an examination of the boy. Obviously if such records existed and tended to exonerate appellant of the charges of sexual abuse of the boy brought in cause number 361527, they would form the backbone of appellant’s cross-examination of the boy on retrial because we have held these charges to be material to this case in our discussion of ground of error five.

The facts to be considered upon a charge of prosecutorial suppression of evidence are: (1) suppression by the prosecution after a request by the defense; (2) of evidence favorable to the defense, (3) which is material to the case. Vasquez v. State, 654 S.W.2d 775, 778 (Tex.App.—Houston [1st Dist.] 1983, no pet). In this case the State’s attorney twice denied in conferences at the bench that any medical records on the boy were in the State’s possession. These denials are consistent with the State’s belief, at trial and on appeal, that these records were not material to the main issue. We have no way of knowing whether such records exist, and if so, whether they have ever been in the possession of the state. Thus we can arrive at no determination whether the records in the boy’s case have been suppressed by the State. Vasquez. We therefore overrule this ground of error. Since we have declared that evidence relating to the boy’s separate allegations is material to the case, however, these records should be held subject to subpoena by the defendant on retrial of this case. TEX.CODE CRIM.PROC. art. 24.01 et seq. (Vernon Supp.1985).

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


author: OSBORN, Justice.

text:
    HERITAGE RESOURCES, INC., Appellant, v. The ANSCHUTZ CORPORATION, Appellee.
    No. 08-84-00258-CV.
    Court of Appeals of Texas, El Paso.
    May 15, 1985.
    Rehearing Denied June 12, 1985.

      Terry L. Jacobson, Frank Finn, Schuyler Marshall, Thompson & Knight, Dallas, for appellant.
    Charles Tighe, Cotton, Bledsoe, Tighe, Morrow & Dawson, Midland, Richard B. Miller, Jacks C. Nickens, Miller, Keeton, Bristow & Brown, Houston, for appellee.
    Before WARD, OSBORN and SCHULTE, JJ.
   OPINION

OSBORN, Justice.

This appeal involves parties who entered into a joint venture agreement to develop drilling prospects in West Texas and New Mexico. The dispute developed over ownership rights of a well drilled in Midland County, and following a jury trial, judgment was entered denying recovery to Heritage Resources, Inc. We affirm.

In August, 1981, The Anschutz Corporation and Heritage Resources, Inc. entered into a Joint Venture Agreement whereby Heritage would locate drilling prospects and do the necessary geological and leasing work to make the prospects attractive to drill and Anschutz would provide certain financial support and agree to drill the prospects it approved. Each party would, by fulfilling their obligations under the agreement, earn a participating interest in a designated Prospect Area of Mutual Interest and in any producing wells, with options to sell their interest to third parties.

One prospect developed by Heritage was the “Moonlight South Prospect” in Midland County. It was to be drilled as an Ellen-berger test at approximately 13,500 feet and at a cost of about $1,500,000.00 if completed. Heritage had leased approximately 2,250 acres in the prospect area and obtained substantial seismic work, all at a cost of nearly $750,000.00 to Anschutz.

The Joint Venture Agreement in paragraph 4 provides:

As soon as possible after Heritage has performed all necessary enhancement work and determines that a Prospect is ready for sale or possible drilling (as such readiness is further defined below), Heritage shall give written notice of such readiness to Anschutz providing all data, interpretations, maps, other information, and the terms, if any, at which Heritage is then willing to sell its Earned Interest (as defined below) in the Prospect. Readiness of the Prospect shall be in each such case the enhancement of the Prospect geologically to that point at which a reasonably prudent operator in the industry would elect to drill to test the Prospect. The Prospect shall be deemed ready as of ten days following the receipt by Anschutz of Heritage’s original notice of readiness.

On October 25, 1982, Heritage wrote to Anschutz that it was willing to consider the Moonlight South Prospect drillable, subject to three specified conditions. These included obtaining a lease from the Scharbauer family covering Section 27, Block 40, T-lS, T & P R.R. Co. Survey; obtaining a farmout from Hulen Lemon on the NE/4 of Section 28, Block 40; and obtaining surface acreage from Magnatex at a reasonable price. That letter expressed a desire that Heritage be permitted to “back-in after payout of all acreage, seismic and drilling costs of said initial well for 12.5%.” By paying its pro rata cost, Heritage could earn a one-half interest in the prospect.

On December 9, 1982, Anschutz wrote to Heritage to declare the Moonlight South Prospect “ready.” Attached were copies of the Scharbauer lease, Lemon farmout and the Magnatex agreement. The letter said the well was to be spudded on or before December 31, 1982. Also attached was an invoice for $362,557.20 for one-half of all acquisition costs incurred by Anschutz up to that time and an Authorization For Expenditure to reflect the drilling and completion costs. The letter said:

If Heritage elects to participate in this prospect as to its “earned interest”, then please remit the invoice amount within ten days of your receipt of this letter along with an executed copy of the attached well AFE.

Heritage made no response and did not pay the invoice in order to earn a one-half interest in the Moonlight South Prospect. Anschutz proceeded to drill and complete the well solely at its cost. On February 28, 1983, after the well had been drilled, Heritage wrote Anschutz claiming ownership of a one-half interest in the prospect. Suit was filed on March 14, 1983, seeking to recover an interest in the well and damages. Following a four-week trial, the jury returned its verdict and judgment was entered in favor of Anschutz denying all recovery to Heritage.

Heritage contends in its first point of error that the trial court erred in failing to enter judgment for it because Anschutz breached the Joint Venture Agreement as a matter of law: (1) in declaring the Moonlight South Prospect “ready;” (2) in depriving Heritage of its right to sell its interest within thirty days; (3) in requiring Heritage to elect to participate in the drilling of the initial well within ten days; and (4) in requiring Heritage to pay for its share of acquisition costs within ten days.

In answer to special issues, the jury, among other things: (1) failed to find An-schutz breached the Joint Venture Agreement by declaring the Moonlight South Prospect ready to drill; (3) found Heritage had agreed to call the Moonlight South Prospect drillable by its letter of October 25, 1982, subject only to completion of the conditions set out in the letter; (4) found that by December 9, 1982, Anschutz had reasonably satisfied the conditions set forth in the October 25, 1982, letter from Heritage; (7) failed to find Anschutz breached the Joint Venture Agreement by requesting Heritage to pay its share of the acquisition costs within ten days; (11) found ten days was a reasonable time for Heritage to pay its share of the acquisition costs; and (12) failed to find Anschutz in its letter of December 9, 1982, requested Heritage agree to pay one-half of the estimated cost of the initial well within ten days. By their answers, the jury found for Anschutz and determined there had been no breach of the Joint Venture Agreement by Anschutz in declaring the prospect “ready” and requiring payment from its joint venture for one-half of the acquisition costs within ten days.

But if, as Heritage contends, the agreement was unambiguous, then the rights of the parties should be determined as a matter of law and no issue should have gone to the jury concerning a breach of contract. The question of whether a contract is ambiguous is one of law for the court. Coker v. Coker, 650 S.W.2d 391 (Tex.1983); R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex.1980). If the instrument is so worded that a court may properly give it a certain or definite legal meaning or interpretation, it is not ambiguous. Coker v. Coker, supra; R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., supra. We agree with the parties that the part of the Joint Venture Agreement with regard to declaring the prospect ready is not ambiguous. In such a case the construction of the contract is a question of law for the court, and a jury may not be called upon to construe the legal effect of the agreement. Trinity Universal Insurance Company v. Ponsford, Brothers, 423 S.W.2d 571 (Tex.1968); Hervey v. Passero, 648 S.W.2d 344 (Tex.App.—El Paso 1983), affirmed in part, reversed in part, 658 S.W.2d 148 (Tex.1983).

Paragraph 4 of the Joint Venture Agreement provided that Heritage would determine when the prospect was “ready” and would notify Anschutz, and ten days thereafter “[t]he Prospect shall be deemed ready.” In October, 1982, Heritage was aware of three requirements that had not been met in order that a reasonably prudent operator would elect to drill to test this prospect. Accordingly, on October 25, 1982, it wrote a conditional letter of readiness. It told its joint venturer that it considered the prospect drillable subject to the three listed conditions. On December 9, 1982, Anschutz replied the conditions had been met, it furnished evidence by sending copies of the additional leases and said the Moonlight South Prospect was ready. At that time nothing remained to be done and Heritage did not reply or advise to the contrary. Heritage’s next letter to An-schutz, after the well was completed, identified its letter of October 25, 1982, as a “conditional notice of ‘readiness’.” We agree and hold that on December 9, 1982, the three conditions had been met and ten days thereafter the well was ready, and that as a matter of law the parties by the exchange of letters so agreed and the provisions of paragraph 4 of the Joint Venture Agreement had been met. If there was any fact issue, it was decided favorably to Anschutz by the jury.

Once the prospect was ready to be drilled, we are required to consider the obligations which each joint venturer had to the other. Anschutz told Heritage to pay its one-half of the acquisition costs within ten days if it elected to participate in the prospect. Heritage did not pay. The last two sentences of paragraph 4 of the Joint Venture Agreement state:

If Heritage makes that payment to An-schutz required below, Heritage shall have been deemed to have earned one-half of all such interests in the Prospect Area of Mutual Interest. Heritage shall be entitled to receive from Anschutz an appropriate assignment of such Earned Interest contemporaneously with payment by Heritage to Anschutz of that amount equal to the costs incurred by Anschutz attributable to the Earned Interest percentage of Heritage for such Prospect.

Clearly, Heritage would own a one-half interest in the Prospect Area of Mutual Interest if it paid Anschutz one-half of the acquisition costs. But, the Joint Venture Agreement is silent as to the time within which such payment was required. When no time for performance is given in a contract, the law will imply that the time of performance was to be a reasonable time. Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940 (1944); Price v. Horace Mann Life Insurance Company, 590 S.W.2d 644 (Tex.Civ.App.—Amarillo 1979, no writ). What is a reasonable time depends upon the facts and circumstances as they existed at the date of the contract. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12 (1958). Although “reasonable time” is a relative term, it never means an indulgence in unnecessary delay; instead it denotes such promptitude as the circumstances will allow for the action called for by the contract. Price v. Horace Mann Life Insurance Company, supra; 14 Tex.Jur.3d, Contracts, sec. 228 (1981).

In this case, the Joint Venture Agreement provided that the prospect would be considered ready ten days following the notice of readiness. It also provided that “[ujpon a determination of readiness of a Prospect, all provisions of the operating agreement attached hereto * * * shall control any further operations on the Prospect Area of Mutual Interest, * * It would be a strained construction to provide for an effective date for the operating agreement at a time different from the time when the operator would know whether a non-operator had made the necessary payment to obtain an earned interest in the prospect about to be drilled. This is particularly so when Anschutz had to make a decision to drill the well alone and be solely responsible for more than $1,000,000.00 in drilling and completion costs.

Since the Joint Venture Agreement was silent on the time for performance, the trial court correctly submitted an issue to the jury as to what was a reasonable time for Heritage to pay its share of the acquisition costs. The jury found ten days was a reasonable time. We believe that finding was consistent with the facts and circumstances at the time the agreement was made and there is no attack in this appeal upon the sufficiency of the evidence to support that finding.

Having determined that the well was properly declared ready on December 9, 1982, and that Heritage had ten days to pay for and earn its one-half interest in the prospect and that it failed to do so, we now turn to the complaint that Anschutz denied Heritage its contract right to sell its interest within thirty days. The Joint Venture Agreement gave Heritage a right to sell its earned interest in any Prospect Area of Mutual Interest, and Anschutz had an option to buy one-fourth of that interest on the same basis on which Heritage was willing to sell to a third party. Paragraph 5(c) of the agreement provides:

If prior to receipt of notice of election to sell by Heritage, Anschutz gives notice to Heritage that it intends to drill a well on the Prospect Area of Mutual Interest, Heritage shall nonetheless have 30 days from receipt of such notice to drill to exercise its rights set forth above to sell its Earned Interest.

This provision applies only to “its Earned Interest.” Paragraph 4 required payment to Anschutz in order for Heritage “to have earned one-half of all such interests in the Prospect Area of Mutual Interest.” If there was no payment, there was no earned interest. If there was no earned interest, then there was nothing to sell within a thirty-day period and there was no breach of that contractual right. Point of Error No. One is overruled.

Heritage contends in Point of Error No. Two that the trial court erred in failing to enter judgment for it because Anschutz breached its fiduciary duty to it as a matter of law. The jury found in answer to Special Issue 14-B that An-schutz did not breach its fiduciary duty to Heritage by sending the December 9, 1982, letter and in treating Heritage’s interest in the Moonlight South Prospect as being forfeited December 19, 1982. Heritage contends that as joint venturers, each of these parties owed the other a duty of utmost good faith and fair dealing. That is the holding in Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951). But, unlike Ginther v. Taub, 675 S.W.2d 724 (Tex.1984) and Manges v. Guerra, 673 S.W.2d 180 (Tex.1984), this is not a case where one party by some wrongdoing sought to obtain an unjust enrichment for itself. An-schutz’s conduct was “open and above board.” Heritage, and it alone, decided whether to pay and obtain an earned interest in the Prospect Area of Mutual Interest. It did not pay, and it did not even suggest after the December letter that more time was desired either to pay for its interest or to try to sell its interest. Instead it chose to remain silent, “ride the well down” and once it was determined that the well was commercially productive to claim a one-half interest. That can hardly be a claim for equitable relief by one with clean hands. At that time, Anschutz had spent or contracted to pay around $2,000,000.00 for acquisition costs, drilling expense and completion costs. Heritage had avoided committing itself for any of this expense. We conclude that the Fitz-Gerald, Ginther and Manges cases are not controlling. overruled. Point of Error No. Two is

The last two points of error assert the trial court erred in entering judgment based upon the jury’s answers to Special Issues 15 through 20. Those issues deal with matters of waiver and estoppel. Having concluded that Heritage was never entitled to any earned interest in the Prospect Area of Mutual Interest, those issues are immaterial and are not controlling as to the judgment which was entered. Finding no error, Points of Error Nos. Three and Four are overruled.

The judgment of the trial court is affirmed.


author: CRITZ, Judge. CURETON, Chief Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. VOLEK et al.
    No. 1707—6201.
    Commission of Appeals of Texas, Section A.
    March 14, 1934.
    Sewell, Taylor, Morris & Garwood, of Houston, for plaintiff in error.
    C. H. Chernosky and A. B. Gerland, both of Houston, for defendants in error.
   CRITZ, Judge.

This suit was filed in the district court of Harris county, Tex., by Texas Employers’ Insurance Association, to set aside an award of the Industrial Accident Board of this state in favor of Mike Volek and wife, Rosa Volek. Trial in the district court resulted in a judgment for the Voleks. This judgment was affirmed by the Court of Civil Appeals. 44 S.W.(2d) 795. The association brings error.

This case involves a proper construction of the extraterritorial provisions of our Workmen’s Compensation Law, and its application to the facts of this case. It therefore becomes necessary to make a fairly comprehensive statement of the facts.

Mike and Rosa Volek are the surviving parents of Frank Volek, deceased. Frank Volek was injured and thereby instantly killed on December 21, 1928, while in the course of his employment as a driller’s helper, or pipe racker, for J. S. Abercombie Company, a private corporation, on an oil well being drilled by such company in Calcasieu parish, in the state of Louisiana. Frank Volek was unmarried, and his parents are entitled to compensation for his death if the facts bring this case within the extraterritorial provisions of our Compensation Law as it existed at the time of his death.

The Abercombie Company is a private Texas corporation. During all of the times involved here it was engaged in the business of drilling oil wells in Texas and other states, including Louisiana. It protected its Texas employees by an insurance policy issued by Texas Employers’ Insurance Association, and such policy was sufficient in form and substance to cover its employees working outside this state who are contemplated by the extraterritorial provisions of our Compensation Law. Also Abercombie Company carried compensation insurance in another company covering its employees in Louisiana. Mike and Rosa Volek have made no claim for compensation in Louisiana, but have elected to claim under the Texas law. It appears also that Frank Volek, at the time he was killed, was carried on the rolls of Abercombie Company as a Louisiana employee, and was not reported to the Texas Employers’ Insurance Association as its employee.

From April 1, 1928, until October 3, 1928, Frank Volek was in the employ of Abercombie Company as a driller’s helper or pipe racker. During this time he worked under one J. R. Bass, under a contract of hire from day to day. During such time he was engaged in drilling a well near Damon, in Fort Bend county, Tex. The well near Damon was completed about October 3,1928, and the Aber-combie Company, having no other well for this crew to drill, laid all the men off, including Frank Yolek. Frank Volek remained idle from October 3, 1928, until about October 12, 1928. During this time he was paid no wages by Abercombie Company. At some timé between October 3, and October 12,1928, Abercombie Company contracted to drill an oil well in Calcasieu parish, in the state of Louisiana. On October 12,1928, Frank Volek was given one day’s work by Abercombie Company cleaning up around the rig and' boxing tools preparatory to the shipment of the rig and tools to the well site in Louisiana. On this latter date, while Frank Volek was engaged in the above work, he made a contract with Abercombie Company to continue his work on the Louisiana well. In this connection it appears that J. R. Bass, the duly authorized agent of Abercombie Company, made the statement to the men who had worked on the Damon well, including Frank Volek, that, if they would go to Louisiana, they would be. given the same jobs that they had had on the well at Damon. In this connection we quote the following from the testimony of the witness, Lawrence E. Burris:

“On that day I heard John Bass and Frank Yolek talking to each other. At this particular time I have in mind, there were present myself, G. W. Wisely, Roy Stevens, and Dickson, and, in fact, practically all the whole crew; I might not remember all of them right now.
“Mr. Bass wanted to know who all was going to Louisiana with the job down there. He said we would all go down there and have the same jobs back that we had there. He -said that the rig was going to Louisiana, and we all had our same jobs there. He was talking to Frank Volek, Frank said he was going, and different ones named over who was going and who wasn’t going, and he said: ‘All right, all that is not going, I will pay you all off here’. He wrote out checks for all that did not go, and he did not write checks for all that went.”

From the above we conclude in favor of the judgment of the trial court that, while Frank Volek was an employee of Abercombie Company in Texas, it, through its duly authorized agent, made a contract with him to go to Louisiana and continue the same services for the company that he had performed in Texas, Frank Volek complied with his promise and reported for duty at the well in Louisiana about October 19 or 20, 1928. In this connection the'record shows that he was allowed wages for the time he was traveling from his home at Damon, Tex., to the well in Louisiana.

Frank Volek went to work on the well ⅛ Louisiana about October 20, 1928, and seems to have worked continuously for the Abercom-bie Company on such well until December 21, 1928, when he was killed, with the exception of some eight or ten days when he was laid off on account of an injured arm. When he was laid off he was told to come back to work when he recovered from his injury and he would be given his job back. When he recovered he again reported for work and was again given work on the Louisiana well, only with another crew.

Before proceeding further we deem it advisable to quote the applicable portion of section 19 of article 8306, R. C. S. of Texas, as it existed when Frank Volek was killed on December 21, 1928. Such statute is H. B. 314, c. 259, p. 383, Acts 40th Legislature, 1927. It reads as follows:

“If an employee, who has been hired in this State, sustain injury in the course of his employment he shall he entitled to compensation according to the law of this State even though such injury was received outside of the State; and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas, except that in such cases of injury outside of Texas, the suit of either the injured employee or his beneficiaries, or of the association, to set aside an award of the Industrial Accident Board of Texas, or to enforce it, as mentioned in Article 8307, Sections 5-5a, shall be brought either
“a. In the county of Texas where the contract of hiring was made, or
“b. In the county of Texas where such employee .or his beneficiaries or any of them reside when the suit is brought, or
“c. In the county where the employee or the employer resided when the contract of hiring was made, as ■the one filing such suit may elect.
“Providing that such injury shall have occurred within one year from the date such injured employee leaves this State;' and provided further that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the courts of the State where such injury occurred.”

By proper assignment of error the association contends that the Court of Civil Appeals erred in affirming the judgment of the district court against it because the uneontra-dieted evidence shows that Frank Volek was killed in the state of Louisiana while at work under a contract of hire wholly made and entered into in that state. This contention is based on the circumstances attending the laying off of Frank Yolek for some ten days on account of an injury received by him while working on the well in Louisiana. We do not think such facts, as a matter of law, constitute a new contract of hiring within the meaning of our Compensation Law. While Frank Yolek was an employee of Abercombie Company in Texas he was induced by such company to go to Louisiana on the promise that he would be continued as its employee in the latter state. When he was injured while working on the well in Louisiana and laid off, he was told he could have his job back when he recovered. When he recovered he again reported for work, and was given his same job, only under another foreman, and on the night instead of the day crew. Such facts demonstrate no new contract within the meaning of our Compensation Law. They merely show a temporary suspension of the old contract. Pettiti v. T. J. Pardy Const. Co., 103 Conn. 101, 130 A. 70. Our Compensation Laws should be liberally construed in favor of the employee. It would certainly be highly technical to say that, because Frank Yolek was laid off for a few days on account of injury, he went back to work as a new employee.

A careful reading of the above statute shows that it has effect to extend the provisions of our Workmen’s Compensation Law to any employee “who has been hired in this State,” even “though injured out of the State of Texas,” if such- injury be received within one year from the date he leaves the state. It will be noted that the statute only purports to cover “an employee who has been hired in this State.”'\This clause certainly does not have reference to the place where the hiring was originally made. The primary purpose of our Compensation Law is to protect our own workmen. The purpose of the extraterritorial provision is to protect, under our law, employees who are such in this state under some contract of hiring, and who are incidentally or temporarily sent out of this state to perform labor or services. \ We think a careful reading of the opinion • of the Court of Civil Appeals will demonstrate that its construction of the above statute is in harmony with ours.

When the entire record of Frank Yo-lek’s employment is examined in the light of the above rule, we think it is fair to conclude therefrom that, while he occupied the status of- an employee of Abercombie Company'in "llexas, he was sent or induced by such company, through its duly authorized agent, to go temporarily to Louisiana to perform services for it. We think the record further fairly justifies the conclusion that Frank Yolek was killed in the course of his employment in Louisiana while performing the services he went there to perform. He was killed in less than a year after leaving this state. We conclude that he was protected by our Compensation Law.

We have read and carefully considered the other assignments, and in our opinion the Court of Civil Appeals has correctly disposed of them. - -

We recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: RXAN, Judge. OURETON, Ohief Justice.

text:
    COMMERCIAL INV. TRUST, Inc., v. SMART et al.
    Motion No. 11227; No. 1497—6235.
    Commission of Appeals of Texas, Section B.
    March 21, 1934.

      John A. Coffee, of Hereford, for appellant.
    W. H. Russell, of Hereford, for appellees.
   RXAN, Judge.

In our original opinion [67 S.W.(2d) 858], we overlooked the Act of March 20, 1911 (32d Leg. c. 93, p. 171) conferring on the county court of Deaf Smith county original concurrent jurisdiction with justices’ courts of all civil matters of which .by general law the latter have jurisdiction.

Section 1 of that act reads as follows: “That the county court of Deaf Smith, Parmer, Randall, Castro, and Lubbock counties and the unorganized counties of Bailey and Lamb shall have and- exercise original concurrent jurisdiction with the justices courts in all civil matters which by the general laws of this State is conferred upon justices courts.”

And section 4 of said act reads as follows: “This Act shall not be construed to deprive the justices court of the jurisdiction now conferred upon them by law, but only to give concurrent original jurisdiction to the said court over such matters as are specified in Section 1 of this Act, nor shall this Act be construed to deny the right of appeal from the justices courts to the said county court in any case originally brought in the justices court where the right of appeal now exists by law.”

And by section 5 theréof all laws and parts of laws in conflict therewith are repealed.

The constitutionality of this act, in so far as the civil jurisdiction conferred by its terms upon the county court of the counties named therein, was upheld in Turnbow v. J. E. Bryant Co., 107 Tex. 563, 181 S. W. 686.

By section 22, art. 5 of the Constitution, the Legislature has power, by local or general law, to increase, diminish, or change the civil and criminal jurisdiction of county courts and conform the jurisdiction of the other courts to such change. Muench v. Oppenheimer, 86 Tex. 568, 26 S. W. 496. Under the authority of this section the Legislature had the power to increase the jurisdiction of the county court by giving to it jurisdiction over the subjects of litigation embraced in the jurisdiction of the justices’ courts. Gulf, W. T. & P. R. Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054.

We were in error in assuming that the county court did not have jurisdiction of the suit as originally filed by the Commercial Investment Trust, Inc., against Smart and wife, and therefore we may now answer the question as certified, from the standpoint alone of the cross-action and the contention of appellees that their plea alleging payment of the note and asking for cancellation of the chattel mortgage in question is not to be considered in determining the amount involved in their cross-action.

If appellees are correct in such contention, then the county court had jurisdiction; otherwise not.

We think a test, in this case, is whether appellant could have taken a non-suit and thereby prejudiced appellees’ plea of payment and prayer for cancellation of the chattel mortgage given by them.

Article 2014, Rev. St. 1925, requires that “payment” must be specially pleaded and cannot be shown under a general denial only ;■ the burden of proving payment is on the defendant. Pierce v. Baker (Tex. Civ. App.) 238 S. W. 699; Biggs v. Doak (Tex. Civ. App.) 260 S. W. 882; Matossy v. Frosh, 9 Tex. 610; Marley v. McAnelly, 17 Tex. 658; Hander v. Baade, 16 Tex. Civ. App. 119, 40 S. W. 422; Eastham v. Patty, 29 Tex. Civ. App. 473, 69 S. W. 224.

“Payment” is therefore an affirmative defense, tendering an affirmative issue and necessitating the establishment by the defendant of the truth of the alleged payment of the debt sued on. Pierce v. Baker, supra. The amount involved therein is therefore an amount in controversy and with the prayer for cancellation of the chattel mortgage, alleged, we think, an affirmative cause of action against plaintiff, in which state of the record appellant could not have taken a nonsuit of its cause of action and thereby deny or prejudice appellees’ right to show' that the debt evidenced by the note had been paid- and obtain a judgment cancelling-said note and mortgage (article 2182, Rev., St. 1925); this relief appellees might have obtained in an independent suit for cancellation of the note and chattel mortgage. Johnson v. Lockhart, 20 Tex. Civ. App. 596, 50 S. W. 955; Jackson v. Furst, Edwards & Co. (Tex. Civ. App.) 154 S. W. 243.

We conclude that the plea .of credit for certain specified payments on the note which it is claimed discharged and satisfied that indebtedness, coupled with the plea for cancellation of the chattel mortgage, should be considered as part of the amount in controversy sought to be recovered by appellees in addition to the $950 claimed as damages. This conclusion is in accordance with the weight of authority in this state. Billings v. Southern Supply Co. (Tex. Civ. App.) 194 S. W. 1170; Smith Premier Sales Co. v. Connellee (Tex. Civ. App.) 147 S. W. 1197; Cable Co. v. Rogers, 44 Tex. Civ. App. 620, 99 S. W. 736.

We therefore recommend that our previous opinion be set aside and this be substituted therefor, with the recommendation that the question be answered in the affirmative.

OURETON, Ohief Justice.

Original opinion withdrawn, and new opinion substituted. The last opinion of .the Commission of Appeals answering the certified question is adopted and ordered certified.


author: HARVEX, Presiding Judge. CURETON, Chief Justice.

text:
    Ex parte KNOLLENBERG.
    No. 1751—6597.
    Commission of Appeals of Texas, Section A.
    March 14, 1934.
    Fred O. Knollenberg, pro se.
    D. E. Mulcaliy, Co. Atty., of El Paso, and Hal Haddix, of Fabens, amici curias.
   HARVEX, Presiding Judge.

This is a proceeding on writ of habeas corpus issued by the Supreme Court on the application of the relator, Fred C. Knollen-berg. The relator claims that he is unlawfully restrained by the sheriff of El Paso county under a commitment issued by the county court at law of said county. The relator was fined by said court, in the sum of $25, for contempt, and committed to jail until said fine is paid.

The facts are substantially as follows:

In October, 1933, a certain civil case was in process of trial in said county court. The suit concerned certain rentals alleged to be due to the plaintiff in said suit by the defendant therein. The relator was the attorney for the plaintiff in the suit. The relator went upon the witness stand, and gave testimony in behalf of the plaintiff. He had in his possession two certain letters which the defendant had written to the plaintiff. Both these letters dealt with matters pertinent to the issues in said suit. On cross-examination of the relator by the defendant’s counsel, the former admitted having said letters in the courtroom at the time, and he was asked by defendant’s counsel to produce them. This the relator refused to do. The trial judge thereupon ordered the witness, the relator, to produce the letters. The relator respectfully refused to obey the order, on the ground (1) that same were private papers of the plaintiff, which the relator, as attorney, had received from his client, and therefore same constituted confidential communications, and (2) that the contents of said letters were self-serving statements of the defendant, and therefore not admissible in evidence in his favor. In connection with his refusal to obey the order of the court, the relator further stated to the court that the letters would be produced after the defendant in the case had testified. The trial -judge thereupon entered an order, in due form, fining the relator for disobeying the order of the court -to produce said letters. The relator voluntarily produced the letters, after the defendant had testified, and same were introduced in evidence.

There, is no pretense that the said county court did not have jurisdiction of the subject-matter of the suit mentioned. Nor can there be any doubt that the court had jurisdiction to require the relator, under the circumstances stated, to produce-the letters as he was ordered to do. It was not the province of the relator, either in his capacity as attorney or as witness, to decide as to the admissibility of the letters in evidence, or to select the stage of trial for their production. It was his duty to obey the order of the court. Ex parte Lipscomb, 111 Tex. 409, 239 S. W. 1101. It is not necessary for us to decide as to the power of a trial court to compel tlxo .production of confidential communications between attorney and client. No such case is 'before us. The letters in question were written by the defendant, who was not a client of the relator.

We recommend that the relator be remanded to the custody of the sheriff of El Paso county.

CURETON, Chief Justice.

The opinion of the Commission of Appeals is adopted, and the relator remanded to the custody of the sheriff of El Paso county, Tex.