author: ESQUIVEL, Justice.

text:
    FENWAL, INC., Appellant, v. MENCIO SECURITY, INC., Appellee.
    No. 04-83-00234-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 30, 1985.
    Rehearing Denied March 7, 1985.

      Joel H. Klein, Klein & Klein, San Antonio, for appellant.
    Robert J. Ulman, San Antonio, for appel-lee.
    Before ESQUIVEL, CANTU and DIAL, JJ.
   OPINION

ESQUIVEL, Justice.

This is an appeal from a take nothing judgment in a suit on a sworn account.

Appellant Fenwal, Inc. (Fenwal) filed suit against appellee Mencio Security, Inc., d/b/a Seso Security (Seso) seeking to recover on a sworn account for equipment sold by it to Seso at the insistence and request of Seso. Seso answered by sworn denial and subsequently filed its counterclaim seeking damages as a result of Fen-wal’s alleged breach of a written contract, namely, a Commission Sales Representative Agreement. In a trial before a jury, the trial court permitted Seso to offer a trial amendment to supplement its counterclaim and conform its counterclaim with the evidence so as to exclude a breach of the Commission Sales Representative Agreement as originally pleaded and substitute therefor an alleged breach of a Distributor Agreement executed by the parties. The verdict returned by the jury was for Fenwal in the sum of $38,140.21 for the indebtedness owed by Seso to Fenwal for the purchase of goods, and in addition thereto, the verdict returned by the jury on the counterclaim was for Seso in the sum of $97,000.00 for its damages suffered due to acts, omissions of conduct constituting a breach of the agreement by Fenwal. Attorney’s fees were found for each party, i.e., $9,500.00 to Fenwal and $7,500.00 to Seso. Fenwal’s motion for judgment non obstante veredicto was denied; the court further denied Fenwal’s attorney’s fees and allowed Fenwal a set off in the amount of $38,140.21 against the recovery to Seso in the total amount of $104,500.00, resulting in a net award to Seso in the amount of $66,359.79.

Fenwal brings forth eleven points of error which can be broken down in the following categories: (1) a point of error pertaining to the trial amendment; (2) points of error that the trial court erred in overruling its motion for judgment non obstan-te veredicto and denying its motion for new trial pertaining to Fenwal’s breach; (3) points of error that the trial court erred in overruling its motion for judgment non ob-stante veredicto and denying its motion for new trial pertaining to Seso’s resulting damages; and (4) a point of error pertaining to the admission of alleged hearsay testimony. Our initial discussion will pertain to the trial amendment.

THE TRIAL AMENDMENT

Fenwal alleges in its point of error that the “trial court erred in allowing Seso to amend its counterclaim by trial amendment and thereby introduce, during the trial, an entirely new cause of action previously outside the pleadings and not in evidence.” Fenwal contends that the trial amendment should not have been allowed because it constituted an entire repleading of Seso’s counterclaim. Seso argues that the trial court correctly permitted the filing of the trial amendment because the issue of the Distributor Agreement was raised by the evidence and tried by implied consent, and further, that the trial amendment could not be said to have raised a new cause of action or to have been a surprise because Fenwal had knowledge of the Distributor Agreement and knew that the subject of Seso’s counterclaim was breach of contract. Seso further argues that Fenwal waived any objection to the trial amendment because it failed to claim surprise and to request a continuance or postponement to prepare itself to defend Seso’s trial amendment. We agree with Seso and overrule Fenwal’s point of error number one.

From the record we have determined that Fenwal failed to plead in its petition, upon which trial was had, a specific contract, but, during trial Fenwal introduced, as its exhibit one, through its own witness, the Distributor Agreement to support its claim for compensation from Seso. The record further establishes that the Commission Sales Representative Agreement was referred to and attached as Exhibit A to Seso’s counterclaim against Fenwal for breach of contract due to Fenwal’s failure to provide “technical advice and consultation.” Although the Commission Sales Representative Agreement contained no such provision, it was contained in the Distributor Agreement. This defect in Seso’s pleadings was initially brought to the attention of the trial court by Fenwal when it objected to Seso’s cross-examination of Fenwal’s witnesses on matters concerning the Distributor Agreement.

Where a defect, fault or omission in a pleading is called to the attention of the court during trial, Rule 66, Texas Rules of Civil Procedure, admonishes the court to freely allow trial amendments when the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense on the merits. H.O. Dyer, Inc. v. Steele, 489 S.W.2d 686, 688 (Tex.Civ.App. — Houston [1st Dist.] 1972, no writ). The allowance of a trial amendment under such conditions will not result in a reversal on appeal in the absence of a plea of surprise and a request for postponement or continuance. Mergele v. Houston, 436 S.W.2d 951, 956 (Tex.Civ. App. — San Antonio 1968, writ ref’d n.r.e.). Fenwal objected to the filing of the trial amendment at the time it was offered but it did not plead surprise nor did it make a motion for continuance or postponement. Accordingly, we hold that Fenwal waived its objection to Seso’s filing of its trial amendment.

We will next consider the issue of breach of contract.

BREACH OF CONTRACT

In its answer to special issue number three the jury found that Fenwal had “by their acts, omissions or conduct breached and/or repudiated their agreements and contracts with Seso.”

Fenwal alleges in its points of error numbers nine and ten that the trial court erred in overruling its motion for judgment non obstante veredicto and motion for new trial complaining of the sufficiency of the evidence to support the jury’s findings to special issue number three. In order to sustain a motion for judgment non obstante veredicto a trial court must determine that there is no evidence having probative force upon which the jury could have made the findings relied upon. Dodd v. Texas Farm Products Co., 576 S.W.2d 812, 814 (Tex.1979); Leyva v. Pacheco, 163 Tex. 638, 641, 358 S.W.2d 547, 550 (1962); Burt v. Lochausen, 151 Tex. 289, 298, 249 S.W.2d 194, 199 (1952). On appeal, we must consider the evidence in a light most favorable to the jury finding, considering only the evidence and inferences which support the verdict and rejecting the evidence and inferences which are contrary thereto. Burt v. Lochausen, 151 Tex. at 298, 249 S.W.2d at 199; Murray Corp. v. Brooks, 600 S.W.2d 897, 900 (Tex.Civ.App. — Tyler 1980, writ ref’d n.r.e.). Our scope of review of Fenwal’s “no evidence” point ten is exactly as the scope of review hereinabove set out for Fenwal’s point nine. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Under the rules that we must follow we find the following evidence to be sufficient evidence of probative force, which with proper inferences arising therefrom will reasonably support the jury’s answer to special issue number three.

The provision of the Distributor Agreement pertinent to the discussion of this portion of the appeal is paragraph ten. It reads as follows:

10. Assistance in Designing
The parties hereto acknowledge and agree that the Products include specialized systems which are not of uniform design and which will reflect the particular needs of individual customers of the Distributor. Fenwal hereby agrees to give any and all reasonable assistance as may be requested by the Distributor at any time and from time to time in connection with the designing and planning of systems for any customers of the Distributor. The Distributor, on the other hand, agrees to furnish Fen-wal in writing complete and accurate process, dimensional, and other technical information as well as information needed for insurance approvals which Fenwal will need in order to design the aforesaid systems for the Distributor’s customers. [Emphasis ours.]

While the Distributor Agreement was in effect and as a result of a successful bid, Seso commenced to physically install a fire suppression system at Kelly Air Force Base some time in August of 1979. The system was a Halón fire suppression system which called for the use of equipment and products designed and manufactured by Fenwal. It was to be installed in a facility at Kelly Air Force Base in order to extinguish potential fire and thereby protect some calibration equipment. It was meant to extinguish a fire in the room or the area by discharging an odorless, colorless gas known as Halón stored in strategically located containers as a liquid under pressure. The Halón could be discharged by smoke detectors; or when the temperature in the room or area near a thermal device would reach a certain level; or when several ultraviolet detectors situated in the room or area detected flames; or, by an individual pulling a switch, similar to an ordinary fire alarm, at any manual pull station situated in the room or area. Regardless of whatever manner initiated the discharge of the Halón, the Air Force insisted that the sequence of events, from initiation to final discharge or “dumping” of the Halón, be such that the sequence could be aborted by a “dead man switch” being activated by any individual. This could only be accomplished if in all instances of initiation a yellow light flashed at strategically located places in the room or area and the simultaneous ringing of a bell to warn the persons in the area that a discharge or “dumping” of the Halón was about to occur. A person could then push the “dead man switch” and prevent the discharge of the Halón. This abortion sequence, insofar as it applied to the pull stations, was testified to by Seso as being unusual in nature; that all previous Fenwal systems were not designed to meet this abortion requirement when the discharge of the Halón was initiated at a pull station.

Some time in October 1979 Seso discovered that the signal circuitry as originally designed when the installation of the system began did not meet the pull station abortion requirements of the Air Force. There is evidence that Fenwal, though requested, failed to give Seso any assistance in the redesigning of the system to comply with the Air Force’s abortion requirements as it concerned the pull station procedures and sequence of events; that Fenwal’s refusal to assist in a solution of the problem resulted in Seso retaining TCT, an electronic engineering and consulting firm, for assistance. A workable solution and design was reached with the assistance of TCT and Seso was able to install the circuitry system as per the requirements set by the Air Force. It was further testified that in order to install the TCT redesigned system additional conduit and wiring and additional man-hours than had originally been anticipated were required.

We, therefore, hold that the trial court did not err in overruling Fenwal’s motion for judgment non obstante veredic-to, and it did not err in denying its motion for new trial. Accordingly, Fenwal’s points nine and ten are overruled.

We now proceed to consider the issue of damages.

DAMAGES

In its answer to special issue number four the jury found that $97,000.00 would reasonably compensate Seso for its damages or financial loss resulting “from the occurrence in question and under the circumstances made the basis of this suit.”

There is further evidence that Fenwal refused to provide equipment and products to Seso from May 1980 to May 1981 as provided by the terms of the Distributor Agreement.

The following points of error by Fenwal refer to the jury’s answer to question number four:

Points of Error
⅜ ⅝ ⅝ ‡ ⅝: ⅜
2. The Trial Court erred in overruling Appellant’s Motion for Judgment non obstante veredicto because the jury’s finding in answer to Question No. 4 is against the great weight and preponderance of the evidence.
3. The Trial Court erred in overruling Appellant’s Motion for Judgment non obstante veredicto because there is no evidence that Appellee suffered any damage or financial loss as a result of Appellant’s acts or failure to act.
4. The Trial Court erred in overruling Appellant’s Motion for New Trial because the evidence at trial was insufficient to support the jury’s finding to Question No. 4 that Defendant was harmed or damaged in the sum of $97,000.00.
5. The Trial Court erred in overruling Appellant’s Motion for New Trial because, in view of the evidence, the finding of the jury in response to Question No. 4 was clearly excessive and against the great weight and preponderance of the evidence.
sfc ⅜: ⅜ * sfc ⅜
7. The Trial Court erred in overruling Appellant’s Motion for New Trial because as a matter of law the evidence was not sufficient to support the jury’s answer to Question No. 4.
8. The Trial Court erred in overruling Appellant’s Motion for Judgment non obstante veredicto because, as a matter of law, the evidence was not sufficient to support the jury’s answer to Question No. 4.

We therefore hold that Fenwal’s points of error numbers two, three, four, seven and eight are no evidence points or points of error complaining of the legal insufficiency of the evidence. Our scope of review of these points of error will therefore be as set out in our discussion of points nine and ten.

In regards to the damages caused by Seso’s breach of the Distributor Agreement, the witness Mencio and the witness Duda both testified that Seso found it necessary to obtain the services of TCT. Men-cio testified that Seso paid TCT $2,500.00 for its services but had they received the requested assistance from Fenwal, under the agreement Fenwal’s fee would have been $1,000.00. Mencio further testified that because of the problem presented by the Air Force’s unusual requirement he in effect had to do the rewiring of the system twice which meant the use of additional supplies and hardware which cost him $10,-680.00; that he had to rent a lift for the proper installation of the extra conduits at a cost of $2,116.00; and that it took approximately 1,200 extra man hours to rerun all of the extra conduit at an additional cost of $15,712.00 to Seso; for a total expense “in the neighborhood of $31,000.00.”

In regards to the damages caused by Fenwal’s refusal to provide Seso with any requested material during the year May 1980 to May 1981 when the Distributor Agreement was finally declared terminated by Fenwal the following was testified to by Mencio: that he was unable to finish a simultaneous installation of a Halón system at the Levi Straus project where the contract price was “in the neighborhood of $9,000.00” and that the “profit margin was $3,600.00”; that Seso was “negotiating or working on entering” into contracts with other potential customers to install Halón systems; that in his opinion Seso would do “in the neighborhood of $300,000.00 in gross sales the next year”; that based on his analysis of market conditions in his opinion the minimum profit that Seso would achieve on the $300,000.00 in sales or gross revenue “would be in the neighborhood of about I guess $60,000.00”; that for the year following May 31, 1981, Seso would be “looking at a profit of about $72,000.00,” based on his projections of gross revenue “in excess of $300,000.00”; that Seso lost a contract to sell equipment at Laughlin Air Force Base as a result of which Seso would have made a profit of $2,000.00.

Under the rules that we must follow we find the evidence above mentioned to be insufficient and of no probative force to sustain the findings of the jury in its answer to special issue number four.

The statements by Mencio regarding Seso’s lost profits were not based on fact, figures or data of any kind from which profits could be ascertained with a reasonable degree of certainty and exactness. See Van Sickle v. Clark, 510 S.W.2d 664, 669 (Tex.Civ.App. — Fort Worth 1974, no writ); Village Square, Ltd. v. Barton, 660 S.W.2d 556, 560 (Tex.App. — San Antonio 1983, writ ref’d n.r.e.). We, therefore, hold that an insufficient basis was shown for awarding damages to Seso for lost profits during May 1980 to May 1981, and for the following year.

Additionally, Seso did not discharge its burden of showing the correct measure of damages in regards to the damages caused by the failure of Fenwal to provide advice and assistance in the designing of the Halón system at the Kelly project. It is undisputed that Seso would have suffered additional costs or expenses incidental to the completion of the job because of the Air Force’s unusual request concerning the circuitry regardless of Fen-wal’s breach. Seso failed to demonstrate that the costs as testified to were such costs, less what it would have cost them had Fenwal performed. We, therefore, hold that Seso failed to discharge its burden of showing the correct measure of damages in the Kelly project.

Having held that Seso has failed to prove its damages under its counterclaim, we further hold that it is not entitled to attorney’s fees under its claim. Chastain v. Cooper & Reed, 152 Tex. 322, 332, 257 S.W.2d 422, 428 (Tex.1953); see TEX.REY. CIV.STAT.ANN. art. 2226 (Vernon Supp. 1984). Our holding on the discussed points of error are dispositive of this appeal and make it unnecessary for us to determine Fenwal’s remaining points of error.

Accordingly, we reverse that portion of the trial court’s judgment awarding damages to Seso on its counterclaim in the sum of $97,000.00 plus $7,500.00 attorney’s fees and render judgment for Fenwal in the amount of $38,140.21 plus attorney’s fees in the sum of $9,500.00 against Seso.

      . This is true of Fenwal’s points of error numbers seven and eight despite its use of the words "as a matter of law.” When the complaining party’s opponent had the burden on the issue, the point raising legal insufficiency is properly styled "no evidence." When the complaining party had the burden on the issue and it was answered adversely, the point should be styled as "a matter of law” point because the fact finder’s failure to find a fact need not be supported by the evidence. Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 TEX.B.J. 439, 440 (1983). Points of error numbers two and four are also "no evidence" points of error due to the nature of our standard of review of a point of error complaining of the denial of a motion for judgment non obstante veredicto. Burt v. Lochausen, 151 Tex. 289, 298, 249 S.W.2d 194, 199 (1952).

      . The court denied Fenwal its attorney’s fees based on the fact that it obtained a judgment less than Seso. See L.Q. Motor Inns, Inc. v. Boysen, 503 S.W.2d 411 (Tex.Civ.App. — Houston [14th Dist.] 1973, writ refd n.r.e.) (attorney's fees not recoverable by plaintiff who recovers damages less than recovered by defendant on counterclaim).


source: Caselaw Access Project

author: CANTU, Justice.

license: Public Domain

text:
    SAN ANTONIO MODELS, INC., Relator, v. Honorable David PEEPLES, District Judge, Respondent.
    No. 04-84-00549-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 30, 1985.
    Rehearing Denied Feb. 25, 1985.

      Stewart J. Alexander, San Antonio, for relator.
    K. Key Hoffman, Jr., San Antonio, Andrew Cline, Bayne, Snell & Krause, San Antonio, for respondent.
    Before CANTU, REEVES and TIJERI-NA, JJ.
   ON RELATOR’S PETITION FOR WRIT OF MANDAMUS

CANTU, Justice.

Relator brings this action for a writ of mandamus against Honorable David Pee-ples, District Judge, and Karen L. Harrell, as respondents, to vacate an order entered by Judge Peeples in a discovery proceeding pending in his court.

K. Dianne Carnes instituted suit against Karen L. Harrell, on September 10, 1984, seeking rescission of an agreement between the two and cancellation of a transfer of 1,000 shares of stock to Harrell. Plaintiff’s original petition alleged that pri- or to April 27, 1984, plaintiff was the sole owner and shareholder of San Antonio Models, Incorporated. Being desirous of bringing other people into the corporation, plaintiff met and had discussions with the defendant and Norma G. Klomann in April of 1984. The petition alleged the following agreement between the three women:

1. Plaintiff would sell 1,000 shares of her stock in the corporation to the corporation for the payment of $1,000.00 to plaintiff.
2. Norma G. Klomann would be issued 1,000 shares of stock in the corporation for the payment of $10,000.00 to the corporation.
3. Defendant would be issued 1,000 shares of stock in the corporation in consideration for:
A. Defendant working for the corporation as she was needed; and
B. Defendant giving her line of custom clothing (Carrie Harrell Designs for San Antonio Models, Inc.) to the corporation to be sold through the corporation along with the corporation’s cosmetic line and modeling school and agency services.

Plaintiff states in her petition that she signed, on April 27, 1984, a “Deed of Gift” and a “To Whom It May Concern” letter to the corporation evidencing the transfer of 1,000 shares of stock from San Antonio Models, Incorporated, to the defendant. Plaintiff alleges that defendant stopped reporting for work and never provided her custom line of clothing to the corporation. Plaintiff seeks a rescission of the agreement and cancellation of the transfer of stock based on fraud, misrepresentation, and failure of consideration. Defendant filed a general denial on October 26, 1984.

Attached to the petition for writ of mandamus is a letter, dated November 5, 1984, written by Karen L. Harrell, defendant, to the president of San Antonio Models, Incorporated, demanding inspection of the corporation’s books pursuant to article 2.44 of the Texas Business Corporation Act. Also attached to the petition is a letter to defendant from the corporation’s attorney, dated November 13, 1984, refusing the demand for inspection based on a failure of good faith and a proper and legitimate purpose.

On November 14, 1984, plaintiff filed a notice duces tecum of intention to take the oral deposition of Richard D. Harrell and Karen L. Harrell on November 29, 1984. The defendant filed, on November 26,1984, her notice of intention to take the oral deposition of plaintiff on November 27, 1984. The notice was directed to K. Dianne Carnes, plaintiff and president of San Antonio Models, Incorporated. Attached to the notice was a subpoena duces tecum requesting, among other things, the production of the following items:

Bank account statements, check register, cancelled checks, check stubs, deposit and withdrawal slips and transfer orders of San Antonio Models, Inc. including but not limited to the same records for San Antonio Models School, San Antonio Models Agency, San Antonio Models Cosmetics and any and all enterprises which are a part of San Antonio Models, Inc. from and after March 1, 1984 to and through the present.
All books of account from and including March 1, 1984 to and through the present of San Antonio Models, Inc. as well as of any of the enterprises owned or operated thereby including but not limited to San Antonio Models School, San Antonio Models Agency, and San Antonio Models Cosmetics.
All books of account as well as all records of every kind and character, including memoranda, pertaining and relating to funds of San Antonio Models, Inc. including any of its enterprises utilized or spent by K. Dianne Carnes for her own personal use.
All correspondence, notes, memoranda and any and all other documents of any kind and character pertaining and relating to revenues received by San Antonio Models, Inc. including but not limited to the same records for San Antonio Models School, San Antonio Models Agency, San Antonio Models Cosmetics and any and all enterprises which are a part of San Antonio Models, Inc. and including but not limited to the notebook kept pertaining to San Antonio Models School from and including March 1, 1984 to the present.
All correspondence, notes, memoranda and any and all other documents of any kind and character pertaining and relating to time, monies and other assets expended or contributed by Karen L. Harrell, K. Dianne Carnes and Norma G. Klomann for or to San Antonio Models, Inc. including the same records for San Antonio Models School, San Antonio Models Agency, San Antonio Models Cosmetics'and any and all enterprises which are a part of San Antonio Models, Inc. from and including March 1, 1984 to and through the present.
All correspondence, notes, memoranda and any and all other documents of any kind and character pertaining and relating to disbursements in money or assets of every kind and character made by San Antonio Models, Inc. to Karen L. Harrell, K. Dianne Carnes and Norma G. Klo-mann including but not limited to the same records for San Antonio Models School, San Antonio Models Agency, San Antonio Models Cosmetics and any and all enterprises which are a part of San Antonio Models, Inc. from and including March 1, 1984 to and through the present.

Plaintiff filed a motion to quash defendant’s deposition notice for failure to give timely notice and a hearing was set for December 3, 1984. Defendant delivered a response to the motion to quash, along with a motion for attorney’s fees, costs and expenses and to compel appearance. An order filed in this ease recites that a hearing was held on these motions on December 3, 1984, where evidence and arguments were presented. Plaintiff’s motion to quash and defendant’s motion for fees, costs and expenses were denied. The motion to compel appearance was continued until December 10, 1984.

Subsequently, on December 7, 1984, K. Dianne Carnes, as plaintiff, filed a motion for protective orders complaining of the above set out items, alleging them to be the business and financial records of a corporation not a party to the lawsuit and that such items were not relevant to the subject matter of the case in that they did not relate to any claims or defenses that were involved in the case, and the items were not reasonably calculated to lead to the discovery of evidence that would be admissible in the case.

An order signed and entered on December 14, 1984, by Judge Carolyn Spears, recites that evidence and arguments were heard on December 10, 1984, on defendant’s motion to compel and plaintiff’s motion for protective orders. The motion for protective orders was denied and the motion to compel was granted requiring plaintiff to appear and be deposed on December 18,1984, and to bring with her and produce the matters previously designated for production.

On December 13, 1984, another motion for protective orders was filed, but this time by San Antonio Models, Incorporated, through Norma G. Klomann, an officer and director of the corporation. This motion complained of the same items previously complained of and for the same reasons except that this motion included the charge that the production of these items would be an unreasonable invasion of the corporation’s personal, constitutional and property rights. This motion was set for hearing by Judge Spears for December 17, 1984.

An order signed by Judge David Peeples on December 18, 1984, recites that a hearing was held on December 17, 1984, on the corporation’s motion for protective orders and that evidence and arguments were heard and that matters of record including pleadings were considered. The court entered the following order:

Movant’s motion for protective orders should be denied provided, however, that the production of the documents therein objected to should be limited to documents relating to events on and after March 1,1984 and it further appearing to the Court and the Court finds that the Order heretofore entered herein compelling K. Dianne Carnes to appear and be deposed should be superseded as to date and time of her appearance at such deposition as hereinafter set forth and it further appearing to the Court and the Court finds that insofar as said corporation is concerned, inspection and copying should be as hereinafter set forth.
It was thereafter ordered that the motion for protective orders filed herein by San Antonio Models, Incorporated be and is hereby denied provided, however, that such documents as are therein objected to, shall be produced only insofar as they relate to events occurring on and after March 1, 1984 and it is further ORDERED that the prior Order entered herein pursuant to Defendant’s, Karen L. Harrell, Motion to compel be and is hereby superseded insofar as the time and date of such deposition....

The order then goes on to set the time and date of the deposition.

San Antonio Models, Incorporated seeks, through its application for writ of mandamus, to have Judge Peeples’ order vacated based on two arguments:

1) The private business and financial records are immaterial and irrelevant to the dispute between the two shareholders, and it was a clear abuse of discretion for respondent to order that the records are discoverable, and
2) Because of the fact that relator has previously resisted the one shareholder’s attempt to inspect its books and records of account on the basis of lack of proper purpose, relator will be denied its right to a jury trial on the issue of proper purpose if relator’s books and records of account can be “discovered” by the shareholder at this time.

In support of it’s first argument, relator cites to the case of Maresca v. Marks, 362 S.W.2d 299 (Tex.1962). In that case, the issue was whether the order of the trial judge requiring disclosure and exposure of information contained in income tax returns which is immaterial and irrelevant to the cause in which discovery is sought is a clear abuse of discretion for correction of which the writ of mandamus may issue. Respondent brought suit against relators for monies owed under an employment contract and for exemplary damages for fraud and deceit. He thereafter sought an order of the trial court requiring relators to produce copies of the personal federal income tax returns of the relators for the years 1960 and 1961. After a hearing on the motion the trial judge ordered the entire income tax returns of all relators submitted to respondent for inspection and copying. The order recites that the trial judge “examined” all the returns

in order to determine what part of such returns, if any, were material and relevant to this cause ... and thereupon concluded that, pursuant to the motion and pleadings, and matters of record before this court, the entire income tax returns in question constitute material evidence relative to the matters alleged and raised in this cause.
⅜ ⅜ ⅜ * sfc *

Mandamus proceedings were initiated and copies of the tax returns in question were included in the petition. The Supreme Court found, after examination of these returns, that certain portions were irrelevant to the matters in dispute between the parties as shown in the pleadings.

The Court held that the trial judge abused his discretion in ordering relators to produce for respondent’s inspection and copying their entire income tax returns for the years in question, without separation of the relevant and material parts from the irrelevant and immaterial parts thereof. The Court did recognize that a writ of mandamus cannot be used to supervise the exercise of discretion by a trial judge in his rulings on the relevancy and materiality of information contained in income tax returns. Extraordinary relief can be afforded, however, in the situation where no discretion has been exercised, i.e., when the order of the trial judge does not separate for protection against discovery those portions of income tax returns plainly irrelevant and immaterial to the matters in controversy.

Unlike Maresca, the trial judge in the instant case did not examine the documents complained of in the motion for protective orders. Both relator and respondent admitted that the corporation did not tender to the court, either for in camera inspection or otherwise, the documents sought to be protected. We believe that the instant case falls more closely in line with the case of Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959). In Crane, the trial judge’s order demanding production of the relator’s tax return was vacated by writ of mandamus because he had clearly abused his discretion by ordering production of the return without first inspecting it to determine what portions were relevant and material to the suit. Accordingly, the Supreme Court ordered the judge to inspect the tax returns and make the necessary determination of its relevancy before issuing any further orders concerning the documents.

Before a non-party to a suit may be ordered to produce in accordance with Rule 167 of Texas Rules of Civil Procedure a motion must be filed setting forth with specific particularity the request and necessity therefor. TEX.R.CIV.P. 167(4). Once such a motion is filed it is incumbent upon the trial judge to hold a hearing to determine its relevancy and materiality to the main cause. See Narro Warehouse, Inc. v. Kelly, 530 S.W.2d 146, 150 (Tex.Civ.App.— Corpus Christi 1975, writ ref’d n.r.e.). Without a personal inspection of the items sought to be discovered, we fail to see how a trial judge can make a meaningful and just determination of relevancy and materiality, and whether, for protection of privacy, certain portions which are plainly irrelevant and immaterial to the matters in controversy ought to be separated.

We hold that the failure of the trial judge to make an in camera examination of the items complained of through the motion for protective orders prior to issuing an order directing the delivery of such items amounts to arbitrary action and a clear abuse of discretion for which the remedy of mandamus will lie. See Maresca v. Marks, supra; Crane v. Tunks, supra; Narro Warehouse, Inc. v. Kelly, supra.

Relator’s second argument on this writ of mandamus is without merit. Relator argues that because relator previously resisted the shareholder’s attempt to inspect its books and records of account on the basis of lack of a proper purpose, relator will be denied its right to a jury trial on the issue of proper purpose if relator’s books and records of account can be “discovered” by the shareholder at this time. This is not an action under art. 2.44 of the Texas Business Corporation Act but a discovery action under the Texas Rules of Civil Procedure. Respondent has a right to seek discovery of any information which is relevant and material to the cause of action.

We are certain the trial judge will proceed in accordance with the law as we have set it out herein. No writ of mandamus will issue at this time, but in the event the trial judge should fail to so proceed the clerk will issue the necessary writ to insure that this opinion is effective.

      . Richard D. Harrell was attorney for the corporation who prepared the necessary paperwork for the issuance of stock to Karen L. Harrell. The notice duces tecum requested all information regarding the agreement for the issuance of stock by the corporation.

      . The certified copy of the motion sent up with this application for writ of mandamus reveals that a stamped signature of Judge Spears was used on this motion.

      . This order is referring back to the order entered by Judge Spears on December 14, 1984, compelling plaintiff to appear and be deposed and produce the items requested.


text:
    Amalia RUIZ, Appellant, v. MILLER CURTAIN COMPANY, INC., Appellee.
    No. 04-83-00435-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 6, 1985.
    Rehearing Denied March 7, 1985.

      Rodolfo R. Munoz, San Antonio, for appellant.
    Shelton E. Padgett, J. Tullos Wells, Man-itzas, Harris & Padgett, San Antonio, for appellee.
    Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

ESQUIVEL, Justice.

This is an appeal from a judgment in a worker’s compensation case granting a motion to dismiss for want of jurisdiction on the ground that the employee’s cause of action for wrongful discharge under the non-discrimination provisions of TEX.REV. CIV.STAT.ANN. art. 8307c (Vernon Supp. 1985), was preempted by the National Labor Relations Act.

This litigation began with a dispute between appellant Amalia C. Ruiz (Ruiz) and her employer, appellee Miller Curtain Company, Inc. (Miller Curtain), a business concern undisputably engaged in a business affecting interstate commerce. On February 4, 1982, Ruiz sued Miller Curtain in the 57th Judicial District Court of Bexar County, Texas, alleging she was wrongfully discharged by Miller Curtain because she commenced proceedings under the Texas Worker’s Compensation Act for injuries occurring on the job; Ruiz also asserted a claim for relief for interfering with her civil rights pursuant to 42 U.S.C. § 1985 (1982). Miller Curtain’s motion to remove the cause to federal court was granted and trial was had to a jury in the United States District Court for the Western District of Texas. The trial judge, H.F. Garcia, U.S. District Judge, concluded that there was no factual or legal basis for the federal claim asserted under section 1985 and dismissed it, remanding the remaining cause of action under article 8307c to the 57th Judicial District Court for further proceedings and disposition. In state court, Miller Curtain filed its motion to dismiss for want of jurisdiction and the trial judge entered judgment granting the motion premised upon the preemption of Ruiz’s cause of action by the NLRA and that Ruiz take nothing. The appeal of this judgment raises the question for the first time in Texas whether a worker’s cause of action for wrongful discharge under article 8307c against an employer engaged in a business affecting interstate commerce is preempted by sections 7, 29 U.S.C. § 157 (1982) and 8, 29 U.S.C. § 158 (1982), of the NLRA. We conclude that the conduct at issue in the case before us is arguably prohibited by the NLRA and hence within the exclusive jurisdiction of the National Labor Relations Board (NLRB). We affirm the judgment of the trial court.

Article 8307c provides as follows: Protection of claimants from discrimination by employers; remedies; jurisdiction
Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.
Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
Sec. 3. The district courts of the State of Texas shall have jurisdiction, for cause shown, to restrain violations of this Act.

TEX.REV.CIV.STAT.ANN. art. 8307c (Vernon Supp.1985). It is undisputed that Miller Curtain was at all times material herein a business having interstate aspects that subject it to regulation under the NLRA. The sections of the NLRA pertinent to this appeal are sections 7, 29 U.S.C. § 157 (1982) and 8, 29 U.S.C. § 158 (1982). These broad provisions govern both protected “concerted activities” and “unfair labor practices.”

Section 7 of the NLRA, 29 U.S.C. § 157 (1982), provides that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities

29 U.S.C. § 157 (1982).

The provisions of section 8 of the NLRA, 29 U.S.C. § 158 (1982), relevant to these proceedings are as follows:

(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 ....
******

Id. § 158(a)(1).

The federal preemption doctrine is clearly set out in the supremacy clause of the Constitution. U.S. CONST, art. VI, cl. 2. Preemption may be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Fidelity Federal Savings & Loan Association v. De La Cuesta, 458 U.S. 141, 154, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664, 676 (1982). Thus, in deciding whether a federal law preempts a state statute, the intent of Congress in enacting the federal statute at issue must be ascertained. The United States Supreme Court very clearly set out the intent of Congress in enacting the NLRA. In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (where Court held cause of action for damages resulting from peaceful picketing under certain California statutes preempted by sections 7 and 8), the Court stated the following:

Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized knowledge and cumulative experience:
Congress did not merely lay down a substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application of its rules to a specifically and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision, including judicial relief pending a final administrative order. Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes towards labor controversies....

Id. at 242-43, 79 S.Ct. at 778, 3 L.Ed.2d at 781-82 (quoting Garner v. Teamsters, Chauffeurs & Helpers Local 776, 346 U.S. 485, 490, 74 S.Ct. 161, 165-66, 98 L.Ed. 228, 239 (1953)).

When it is clear or may fairly be assumed that the activities which a state purports to regulate are protected by section 7 of the NLRA, or constitute an unfair labor practice under section 8, due regard for the federal enactment requires that state jurisdiction must yield. Garmon, 359 U.S. at 245, 79 S.Ct. at 780, 3 L.Ed.2d at 783. The U.S. Supreme Court in Belknap, Inc. v. Hale, 463 U.S. 591, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), in determining whether a state statute or cause of action had been preempted by the NLRA, summarized the two doctrines to be applied, the pertinent one being as follows: “Under the first, set out in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), state regulations and causes of action are presumptively preempted if they concern conduct that is actually or arguably either prohibited or protected by the Act....” Belknap, 463 U.S. at -, 103 S.Ct. at 3177, 77 L.Ed.2d at 806-07 (citation omitted).

There are certain actions excepted from preemption where the doctrine set out in Garmon, does not apply. These exemptions are created in the NLRA by Congress. Other actions excepted from preemption are those activities regulated by the state which are of peripheral concern to the NLRA. See Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 61, 86 S.Ct. 657, 662, 15 L.Ed.2d 582, 589 (1966) (civil action for malicious libel during organizing campaign not preempted where NLRA provided no remedy); International Association of Machinists v. Gonzales, 356 U.S. 617, 621, 78 S.Ct. 923, 925, 2 L.Ed.2d 1018, 1022 (1958) (civil action by employee for restoration of union status not preempted where NLRA provided no remedy). Cases involving violence, or the actual threat thereof, where the police power of the states to protect the safety of the public is involved are also exempted from preemption. See Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 207, 98 S.Ct. 1745, 1762-63, 56 L.Ed.2d 209, 231-32 (1978) (state trespass statutes); UAW v. Russell, 356 U.S. 634, 646, 78 S.Ct. 932, 939, 2 L.Ed.2d 1030, 1039 (1958) (suit for wages lost due to mass picketing and threats of violence); UAW v. Wisconsin Employment Relations Board, 351 U.S. 266, 274, 76 S.Ct. 794, 799, 100 L.Ed. 1162, 1172 (1956) (mass picketing and violence). These cases concerned activity that touched interests so deeply rooted in local feeling and responsibility that, absent compelling congressional direction, the U.S. Supreme Court refused to infer that Congress had deprived the states of the power to act. None of these limited exceptions is present in the instant case.

We have found no decisions where the discharge of an employee for the filing of a worker’s compensation claim has been held to be a violation of the NLRA and therefore conduct that is actually or arguably prohibited or protected by the NLRA. Appellee has referred us to Krispy Kreme Doughnut Corp., 245 N.L.R.B. 1053 (1979), enforcement denied, 635 F.2d 304 (4th Cir. 1980), as determinative of the issue before us. In Krispy Kreme, however, the NLRB affirmed the administrative law judge’s finding that an employer had violated the NLRA when it discharged an employee solely because of the employee’s express intention to file a worker’s compensation claim. There the NLRB found the employee’s activity protected because the matter of worker’s compensation benefits arose out of the employment relationship and was of common interest to other employees. Accordingly, the discharge denied access to compensation to an individual employee and, by example, to other employees. Id. at 1062. Even though the same reasoning could apply to the instant case, we cannot hold that the filing of a worker’s compensation claim is covered per se by the Act. We agree with the concurring opinion of NLRB Member Zimmerman in Ohio Brass Co., 261 N.L.R.B. 137 (1982), wherein he states that:

Filing workers’ compensation claims, however, should be distinguished as an implied section 7 right. Such claims do arise out of the employment relationship, and are presumed to be of common interest to other employees, absent evidence of disavowal of concern by employees. The filing of such claims is thus protected by the Act only through a rebuttable presumption that the activity is concerted, and, unlike union activity, it is not covered per se by the Act ....

Id. at 139. (Footnote omitted).

The record before us being void of any evidence indicating a disavowal of concern by other Miller Curtain employees, we hold that the conduct at issue is arguably prohibited by the NLRA and hence within the exclusive jurisdiction of the NLRB.

Accordingly, the judgment of the trial court is affirmed.

      . National Labor Relations Act of 1935, Pub.L. No. 74-198, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151-169 (1982)). Although reference is made to sections of the Act, citation will also be made to the corresponding United States Code section for ease of reference.

      . See National Labor Relations Act of 1935, §§ 14 (codified as amended at 29 U.S.C. § 164(c)), 301 (codified as amended at 29 U.S.C. § 185), 303 (codified as amended at 29 U.S.C. § 187).


text:
    Jerry MARRS, d/b/a Nacogdoches Auto Auction, Appellant, v. SOUTH TEXAS NATIONAL BANK, Appellee.
    No. 04-83-00453-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 6, 1985.
    Rehearing Denied March 7, 1985.

      Eustorgio Perez, Laredo, for appellant.
    Alejandro E. Villarreal, III, Person, Whitworth, Ramos Law Firm, Laredo, for appellee.
    Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

ESQUIVEL, Justice.

This is an appeal from a summary judgment denying intervenor’s motion to extinguish or modify a writ of sequestration and dismissing intervenor’s cause of action. South Texas National Bank (Bank) and Francisco J. Lerma (Lerma) entered into several agreements whereby Bank would forward funds to Lerma for the operation of his business, and he would in turn grant them a security interest in the automobiles purchased with the proceeds of the notes. Subsequently the parties entered into a consolidated note containing an after-acquired property clause. The note was payable on demand or by a date certain. Bank made demand for payment on the unpaid principal sum of $171,538.63 plus accrued interest or, if Lerma were unable to pay, that he surrender by the close of business that day all vehicles held on his lot for sale.

Suit was filed by Bank against Lerma seeking to foreclose Bank’s lien on inventory held for sale by Lerma pursuant to the promissory notes executed by him. Subsequent to the filing of its lawsuit, Bank, obviously concerned with preserving the collateral to satisfy the debt, and ancillary to its main cause of action to foreclose the security interest on the collateral, applied for and obtained a writ of sequestration, pursuant to which the Webb County Sheriff’s Department seized sixty-two (62) vehicles held for sale on Lerma’s used car lot. It was at this point that appellant, Jerry Marrs, d/b/a Nacogdoches Auto Auction (Marrs), filed his motion in intervention, seeking to extinguish or modify the writ of sequestration. Marrs attempted to exclude from the sequestered property some fourteen vehicles allegedly belonging to him, arguing that they were in fact his and were on Lerma’s lot only on consignment. After hearing, the trial court entered an order upholding the writ of sequestration and finding that Bank had a greater right to possession of the vehicles than that of Marrs. Bank thereafter filed a motion for summary judgment as to Marrs’ claim. The trial court entered a partial summary judgment dismissing his claim in its entirety. Subsequent to the partial summary judgment, a trial on the merits was had wherein a final judgment was entered in favor of Bank as against Lerma. Marrs presents six points of error alleging error in the application for the writ of sequestration, the granting of the writ of sequestration and the granting of appellee’s motion for summary judgment. We affirm.

In points of error one, two and three, Marrs attacks the trial court’s denial of his plea in intervention to modify the writ alleging defects in the application for the writ. In support of his contentions, he argues that the application and affidavit failed to allege facts from which it could be reasonably concluded that the property would be injured, ill-treated, wasted, converted or concealed, or removed from the county; that the application and affidavit failed to allege a value for each separate item of property; and, that the application was granted in violation of due process of law.

Bank, pursuant to TEX.R.CIY.P. 696, sought by application and affidavit a writ of sequestration ancillary to its suit against Lerma. TEX.REV.CIV.STAT.ANN. art. 6840, §§ 1(b), 2 (Vernon Supp.1985) requires that an application for sequestration be made under oath by a party having an interest in the property sought to be sequestered, and shall set forth specific facts stating the nature of the claim, the amount in controversy, and the facts relied upon to conclude that the party in possession will injure, ill-treat, waste, convert or conceal the property in question. Marrs argues that the application for writ of sequestration “clearly fails to include any facts upon which the trial court could conclude that Defendant would conceal or remove the property from Webb County, Texas, and from appellee.” He further argues that the application and affidavit merely allude to the fact that Lerma refused to surrender possession of the property when requested, but failed to allege any facts from which the trial court could reasonably conclude that not only did Lerma refuse to surrender the property, but indicated that he would remove the property from the county or conceal the same.

Where a creditor’s affidavit for writ of sequestration states that it is suing for title and possession of the described property and for foreclosure of security interest therein, describing the property, the value of the property, that the property is in the possession of the defendant, and that the plaintiff fears that there is an immediate danger that the defendant will conceal, dispose of, ill-treat, waste or destroy such property, or remove same out of the jurisdiction of the court during the pendency of the lawsuit, it is in substantial and sufficient compliance with TEX.REV.CIV.STAT. ANN. art. 6840 (Vernon Supp.1985) to authorize the judge to issue a writ of sequestration. Monroe v. General Motors Acceptance Corp., 573 S.W.2d 591, 593 (Tex.Civ.App. — Waco 1978, no writ). Marrs’ point of error number one is overruled.

Marrs’ second point alleges error in granting the writ because the application fails to give the value of each article of the property sought to be sequestered. Marrs further argues that the application failed to strictly comply with TEX.R.CIV.P. 696 and in fact, only gave a total approximate value of $125,000 for the property of defendant Lerma, and no value or description of the property belonging to Marrs. We overrule appellant’s contention for two reasons. Initially, in his motion in intervention seeking to modify the writ of sequestration, Marrs did not complain of the lack of specificity as to the value of each item in Bank’s application for writ of sequestration. Further, we hold that the valuation by Bank was in substantial compliance with rule 696 in that all of the inventory held by Lerma was sought to be sequestered in satisfaction of the debt sued for under its main cause of action. Joseph W. Moon Buggy Co. v. Moore-Hustead Co., 196 S.W. 328, 329 (Tex.Civ.App. — Dallas 1917, writ refused). Marrs’ point of error two is overruled.

In point of error three, Marrs alleges error in denial of his plea in intervention to modify the writ since the application was granted in violation of due process of law. In support of his contention, appellant cites the cases of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Since the United States Supreme Court decision in those two cases, TEX. REV.CIV.STAT.ANN. art. 6840 (Vernon .Supp.1985) has been amended such that it closely tracks the Louisiana statute held to be constitutional in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The Court held a Louisiana sequestration statute valid, which like the Texas statute, provides that the debtor may immediately seek dissolution of the writ, which must be ordered unless the creditor proves grounds for issuance. See Monroe, 573 S.W.2d at 594. The Mitchell Court held, “it comports with due process to permit the initial seizure on sworn ex parte documents, followed by the early opportunity to put the creditor to his proof.” Mitchell, 416 U.S. at 609, 94 S.Ct. at 1901, 40 L.Ed.2d at 415. Accordingly, we hold there was no due process violation and Marrs’ point of error number three is overruled.

In points of error four and five, Marrs argues that the trial court erred in denying his plea in intervention to modify the writ since Bank had no interest or right to the property belonging to Marrs; and that the court erred in granting Bank’s motion for summary judgment against him since Bank did not have a perfected security interest to the property in question. At the hearing, Marrs himself testified that the cars were held for sale on Lerma’s car lot, and it is undisputed that the vehicles were in Lerma’s possession on a consignment basis. The issue we must decide is which party had the superior right to possession of the disputed vehicles. To answer this question we must necessarily look to the Uniform Commercial Code, articles 2 and 9. Initially, TEX.BUS. & COM. CODE ANN. § 9.114 (Tex. UCC) (Vernon Supp.1985), as it relates to consignment, would have protected the Marrs’ interest had he complied with its provisions. The section requires that:

(1) the consignor complies with the filing provision of the chapter on Sales with respect to consignments (Subsection (c)(3) of Section 2.326) before the consignee receives possession of the goods; and
(2) the consignor gives notification in writing to the holder of the security interest if the holder has filed a financing statement covering the same types of goods before the date of the filing made by the consignor; and
(3) the holder of the security interest receives the notification within five years before the consignee receives possession of the goods; and
(4) the notification states that the consignor expects to deliver goods on consignment to the consignee, describing the goods by item or type.

Id. § 9.114(a)(lH4).

The question then becomes whether appellant was required to file under section 2.326(c)(3). Section 2.326 defines the type of transaction between Lerma and Marrs as a “sale or return” because the goods are delivered primarily for resale. TEX.BUS. & COM.CODE ANN. § 2.326(a)(2) (Tex. UCC) (Vernon Supp.1968). Further, subsection (b) provides that goods held on sale or return are subject to the claim of the buyer’s creditors while they are in the buyer’s possession. Subsection (c) provides as follows:

(c) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as ‘on consignment’ or ‘on memorandum.’ However, this subsection is not applicable if the person making delivery
(1) complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
(2) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
(3) complies with the filing provisions
of the chapter on Secured Transactions (Chapter 9)_ [Emphasis added.]

Id. § 2.326(e)(l)-(3) (Vernon Supp.1985).

It is clear that Marrs was required to either comply with an applicable sign law or prove that Lerma was known by his creditors to be engaged in the selling of goods of others or comply with the filing provisions of section 9.114. A review of the record reveals that Marrs elicited no evidence or testimony that his interest in some of the vehicles on Lerma’s lot was evidenced by a sign to that effect; neither did he show that Lerma was generally known by Bank to be substantially engaged in selling the goods of others; neither did he comply with the filing provisions of section 9.114.

It is important to note that subsection (b) of section 9.114 states the following:

(b) In the case of a consignment which is not a security interest and in which the requirements of the preceding subsection have not been met, a person who delivers goods to another is subordinate to a person who would have a perfected security interest in the goods if they were the property of the debtor.

TEX.BUS. & COM.CODE ANN. § 9.114(b) (Tex. UCC) (Vernon Supp.1985). Since the transaction between Lerma and Marrs was a consignment as contemplated by section 9.114, and Marrs did not comply with section 2.326(c)(3), his claim is subordinate to that of Bank. Marrs’ point of error number five is overruled.

In point of error six, Marrs alleges the trial court erred in granting Bank’s motion for summary judgment against his entire claim since genuine material issues of fact were in dispute. In support of his contention, Marrs argues that section 9.302(a) of the Texas Business and Commerce Code requires that a financial statement be filed in order to perfect all security interests, and that section 9.302(c)(2) requires that in the case of motor vehicles being held as inventory for sale by a person who is in the business of selling goods of that kind, that the filing be in accordance with the requirements of section 9.401(a)(3). This last section requires that the filing be with the Office of the Secretary of the State of Texas. Although Marrs is correct in this argument, TEX.R. CIV.P. 166-A, the rule relating to the presentation and opposition of motions for summary judgment, clearly states that “[ijssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” A review of Marrs’ motion in opposition to Bank’s motion for summary judgment reveals that at no time did Marrs bring up this alleged noncompliance with the Texas Business and Commerce Code sections requiring filing in the Secretary of State’s Office. Rule 166-A provides that this court cannot consider this allegation, and therefore, point of error number six is overruled. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979).

We have reviewed the points of error presented by Marrs and find no error in the trial court’s judgment. Accordingly, the judgment of the trial court is affirmed.

      . Article 6840 was amended in 1975. See Act of June 19, 1975, ch. 470, § 1, 1975 Tex.Gen.Laws 1246-48. Article 6840 provides, in pertinent part, as follows:
      Sec. 3
      ******
      " (b) A hearing on the motion to dissolve the writ shall be held and the issue determined not later than 10 days after the motion to dissolve is filed, unless the parties agree to an extension of time. At the hearing, the writ shall be dissolved unless the party who secured the issuance of the writ proves the specific facts alleged and the grounds relied upon for its issuance.
      TEX.REV.CIV.STAT.ANN. art. 6840, § 3(b) (Vernon Supp.1985). See also LA.CODE CIV. PROC.ANN. arts. 3501, 3504, 3506, 3507, 3508 & 3576 (West 1961).

      . The official comment of the drafters of the 1972 draft of the Uniform Commercial Code gave the following interpretation of section 9.114’s effect:
      This section requires that where goods are furnished to a merchant under the arrangement known as consignment rather than in a security transaction, the consignor must, in order to protect his position as against an inventory secured party of the consignee, give to that party the same notice and at the same time that he would give to that party if that party had filed first with respect to inventory and if the consignor were furnishing the goods under an inventory security agreement instead of under a consignment.
      ⅜ ⅜ ⅜ ⅜ ⅜ ⅜⅝
      The requirements of notice in this section conform closely to the concepts and the language of Section [9.312(c) ] which should be consulted together with the relevant Comments. ...
      U.C.C. § 9-114 official comment (1972).


author: NYE, Chief Justice.

text:
    Emitt Elmer SWEETEN, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 13-84-052-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 7, 1985.

      Terrence Gaiser, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a conviction for aggravated assault, enhanced by two prior felony convictions. Appellant was initially indicted for both kidnapping and aggravated assault. Trial was to a jury, which found appellant guilty of the offense of aggravated assault. Although appellant had initially elected to have the jury assess punishment, following the jury’s finding of guilty, appellant sought to waive assessment of punishment by the jury and instead have punishment assessed by the trial court. At this time, appellant waived his right to appeal in exchange for the State’s recommendation to the trial court of a sentence of 30 years’ imprisonment. Appellant also entered a plea of true to the enhancement paragraphs of the indictment. After assuring itself of the voluntary nature of this waiver, the trial court accepted appellant’s waiver and, on October 19, 1983, assessed punishment at 30 years’ imprisonment.

On November 3, 1983, appellant filed a notice of appeal. Appellant filed a Motion for New Trial on November 18, 1983 and a First Amended Motion for New Trial on December 28, 1983. On December 29, 1983, the trial court held a hearing on appellant’s First Amended Motion for New Trial. At the conclusion of this hearing, the trial court set aside appellant’s waiver of his right to appeal, and appellant, in open court, again gave Notice of Appeal. Appellant’s motion for new trial was subsequently overruled by operation of law. The record also reflects that appellant filed a notice of appeal on December 29, 1983; however, this written notice is not part of the record. We. find that the appellant timely perfected his appeal.

Appellant attacks the judgment of the trial court through two grounds of error. However, the State asserts two reasons why, in its opinion, appellant should be denied his right to appeal. We will first address the State’s contentions.

First, the State asserts that appellant waived his right to appeal, at no time withdrew his waiver and at no time received either permission to withdraw his waiver or consent from the trial court to appeal his conviction. The State bases its assertions on the contention that appellant’s First Amended Motion for New Trial was untimely filed and, therefore, testimony arising out of that hearing cannot be considered on appeal. See Summerford v. State, 627 S.W.2d 468 (Tex.App. — Houston [1st Dist.] 1981, no pet.).

TEX. CODE CRIM.PROC.ANN. art. 40.-05(b) (Vernon Supp.1984) provides that:

“(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within 30 days after the date the sentence is imposed or suspended in open court.”

Because appellant’s First Amended Motion for New Trial was not filed until seventy (70) days after sentence had been imposed, the State asserts that appellant’s amended motion was untimely.

In Summerford, the appellant complained about issues raised during a hearing on his third amended motion for new trial. The Court held that no issues were presented for review regarding this hearing because this third amended motion was not filed until after both his first and second amended motions had been overruled by operation of law. In Summerford, it was the fact that a ruling had, in effect, already been made on the appellant’s second amended motion that prevented appellant from filing his third amended motion or having any proceedings connected therewith.

In our case, there is no question but that appellant filed his first amended motion prior to any ruling on his original motion for new trial. At issue is the fact that appellant filed his first amended motion more than 30 days after the date sentence was imposed. Article 40.05(b) merely provides that “amended motions ... may be filed without leave ... within 30 days after the date the sentence is imposed....” (Emphasis ours). We see no reason why appellant could not file a late amended motion for new trial with the leave of the court, provided such leave in no way operated to extend the 75-day time limit by which appellant is required to secure a ruling on his final motion and provided any earlier motions had not already been ruled on. See Article 40.05(b), (c) and (d). While there is no express granting of leave to file a late amended motion for new trial, we find that the trial court’s timely act of holding a hearing on appellant’s late-filed amended motion for new trial constitutes, in and of itself, leave to file this late motion. See Fentis v. State, 582 S.W.2d 779 (Tex.Crim.App.1979); Arsola v. State, 138 Tex.Cr.R. 1, 133 S.W.2d 585 (1939). Appellant’s first amended motion for new trial was not void, and all testimony and court rulings occasioned at the hearing on this motion are properly before us on appeal.

The State also asserts that appellant’s notice of appeal was premature and of no effect. “[W]hen an appellant gives notice of appeal prematurely the same shall be deemed to have been filed on the date of, but subsequent to the date of the overruling of the motion for new trial, if such a motion is filed.” Mayfield v. State, 627 S.W.2d 474, 475 (Tex.App. — Corpus Christi 1981, no pet.). Appellant’s notice of appeal, although premature, is nevertheless effective.

Appellant’s second ground of error asserts that the trial court erred by failing to grant his motion for new trial premised on newly discovered evidence. It is appellant’s contention that evidence offered by a newly discovered witness to the effect that appellant did not come within touching distance of the complaining party (victim) is sufficient to require the granting of a new trial. We disagree.

A motion for new trial based upon newly discovered evidence is addressed to the sound discretion of the trial court and its decision will not be disturbed on appeal absent a clear showing of abuse of discretion. Bolden v. State, 634 S.W.2d 710 (Tex.Crim.App.1982). To establish abuse of discretion in overruling the motion, the record must indicate, among other things, that the evidence is probably true and its materiality is such as will probably bring about a different result on another trial and that it is competent and not merely cumulative, corroborative, collateral or impeaching. Bolden, 634 S.W.2d at 712; Carlisle v. State, 549 S.W.2d 698 (Tex.Crim.App.1977). Even if believed, appellant’s evidence is merely corroborative of another witness who testified at trial that he did not see appellant touch the complainant and that appellant was not close enough to touch her. Furthermore, the very nature of the offense requires no proof of an actual touching. We find no abuse of discretion. Appellant’s second ground of error is overruled.

Appellant asserts in his first ground of error that the evidence is insufficient to show that the pocket knife used in the offense was a “deadly weapon.” Since an ordinary pocket knife has been held not to be a deadly weapon, per se, the State was required to show that the weapon used by appellant, in the manner of its use or intended use, was capable of causing death or serious bodily injury. Limuel v. State, 568 S.W.2d 309 (Tex.Crim.App.1978).

The complainant testified that she was returning to her car after buying groceries at a store in Houston. When she got to her car, she noticed appellant approaching her in a rapid fashion. When he was next to her, he grabbed her right wrist and told her to “just be quiet and get in the car and everything will be all right.” At this point, he showed her a knife. She testified that the appellant was holding the knife in his right hand. She described the knife blade as “sticking out an inch. It looked real sharp, but it was sticking out an inch.” According to the complainant, appellant first made sure she could see the knife and then brought it down “like it’s at my stomach.” In elaborating on this statement, she said that “at one point it was perhaps, you know, aiming at my chin.” She also stated that “he kept moving it [the knife], but it was slow movements. He just wanted me to — he made sure I saw it, and then it (the knife) sort of got toward my stomach.”

According to the complainant, after appellant grabbed her, she “... twisted out of his grip and ran with high heels on.” When she started to run, appellant said “don’t run or I’ll shoot.” She did not see a gun and, although concerned over the threat, she continued to run and took refuge inside a store. Appellant was later apprehended in the parking lot.

A knife was recovered near the scene and introduced into evidence at trial. Harris County Deputy Sheriff Heitmann described the knife as a pocketknife with three blades. He described the length of one of the blades as “approximately an inch-and-a-half,” an “inch-and-three-quarters.” The complainant described the knife as “five, six, four [inches], if it’s all unfolded.”

Deputy Heitmann testified that, in his opinion, the knife that was introduced into evidence was a deadly weapon. He also answered affirmatively when asked if “a man were to have that [knife] in his hand and in front of a woman’s face, would that knife be capable of causing serious bodily injury or death in its intended use and that is slashing at the throat area or possibly poking it in the face area, possibly stabbing someone in the eye?”

A review of the case law shows that factors to be considered in determining the sufficiency of the evidence include the size, shape and sharpness of the knife; the proximity of the assailant and victim; threats and gestures made by the assailant; and wounds suffered by the victim. In Alvarez v. State, 566 S.W.2d 612 (Tex.Crim.App.1978), the evidence was found insufficient where the defendant, armed with a hook-type linoleum knife, made a swing at the victim from three to four feet away, despite the fact that the weapon “looked sharp.” Thus, according to the Court of Criminal Appeals, despite the defendant’s violent gesture with the sharp object, it appeared to the Court that the assailant and victim were not close enough to allow a conclusion that the weapon, in its manner or use or intended use, was capable of causing death or serious bodily injury.

Likewise, in Davidson v. State, 602 S.W.2d 272 (Tex.Crim.App.1980), the evidence was found insufficient where a shoplifter confronted by a store clerk pulled a knife with a two-and-a-half to three-inch long blade and said, “If you come any closer, I’m going to cut you,” when the clerk was from five to six feet away from the defendant.

In Hawkins v. State, 605 S.W.2d 586 (Tex.Crim.App.1980), however, the evidence was found sufficient where the defendant, armed with a knife having a blade four to six inches long, lunged at the victim and missed by only five to ten inches.

Likewise, in Vaughn v. State, 634 S.W.2d 310 (Tex.Crim.App.1982), a unanimous panel of the Court of Criminal Appeals found the evidence sufficient where the defendant “displayed the knife in front” of the victim and demanded money, and a police officer testified that the knife was capable of being used as a deadly weapon or to cause serious bodily injury. It is unclear from the opinion whether the knife was introduced into evidence so that the jury could make its own evaluation.

In Blain v. State, 647 S.W.2d 293 (Tex.Crim.App.1983), the evidence was held insufficient where the defendant displayed “something like a kitchen knife” during a robbery and no evidence was elicited as to the blade’s length, and the assailant had made no gestures with the knife.

Recently, in Tisdale v. State, 686 S.W.2d 110 (Tex.Crim.App.1984) (State’s Motion for Rehearing Pending), a sharply divided Court of Criminal Appeals found the evidence insufficient to show that a knife with a two and one-fourth-inch blade was a deadly weapon where the defendant had made no threat and made no gesture with the knife.

In several cases, even where the victim actually suffered wounds, the evidence was found insufficient to show that the knife was a deadly weapon despite what appeared to be serious wounds. See Harris v. State, 562 S.W.2d 463 (Tex.Crim.App.1978); Danzig v. State, 546 S.W.2d 299 (Tex.Crim.App.1977). These cases are questionable authority as they were overruled in part in Denham v. State, 574 S.W.2d 129 (Tex.Crim.App.1978), wherein the Court of Criminal Appeals discarded the rule that expert testimony was necessary on the deadly weapon issue.

In the present case, the testimony establishes that the assailant and the victim were about a foot apart and that appellant had grabbed the victim’s wrist. Accompanying this physical contact was the appellant’s threat “Just be quiet and get in the car and everything will be all right.” Moreover, the gestures made with the knife — while slow — clearly amount to more than just the holding of a knife. According to the victim, he aimed the blade, which “looked real sharp,” at her chin and the knife, which appellant kept moving, “got toward my stomach.”

In addition, the police officer who had been involved in cases involving knives about 8-10 times a year during his four years with the police department, testified that, in his opinion, the knife was a deadly weapon.

Here, the knife was introduced into evidence. The jury had the opportunity to observe the witnesses, see the knife and listen to the description of the manner of its intended use. We find that the common experience and understanding of the jury in this case was sufficient to assess the propensities of the manner of use or intended use of this particular knife to inflict death or serious bodily injury by the assailant. We hold that the evidence is sufficient for the jury to find that the defendant was guilty of aggravated assault. Appellant’s ground of error is overruled.

The judgment of the trial court is AFFIRMED.

      . In Ex parte Drewery, 677 S.W.2d 533 (Tex.Crim.App.1984), the Court, in dicta, stated that "Art. 40.05(b), V.A.C.C.P., specifically provides that a motion for new trial may be amended without leave of the Court at any time prior to the overruling of said motion."

      . In any event, we find that the Court’s ruling withdrawing appellant’s waiver of his right to appeal would be properly before us today if by no other means than as part of an informal bill of exceptions. See Patteson v. State, 633 S.W.2d 549 (Tex.App. — Houston [14th Dist.] 1982, no pet.).