author: ELLIS, Justice.

text:
    MATADOR PIPELINES OF TEXAS, INC., Appellant, v. Earl J. MARTIN, Trustee, Appellee.
    No. B14-84-080CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 6, 1984.

      James E. Myers, Andrew & Kurth, Houston, for appellant.
    Robert L. Burns, Sears & Burns, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Matador Pipelines of Texas appeals a trial court judgment holding that appellant Matador did not have the right or power to condemn land owned by appellee Earl Martin. Although appellant raises four issues on appeal, we believe the decisive issue now before us is whether appellee received adequate notice of the commissioners’ hearing concerning damages for condemnation. After careful review of both the statutory requirements for such notice and the circumstances here presented, we conclude that appellee did receive adequate notice of the condemnation hearing. Accordingly, the judgment of the trial court is reversed and remanded for further proceedings as directed below.

Clayco Pipeline Company, whom appellant Matador subsequently bought out, filed a statement in condemnation to acquire from appellee a pipeline easement. In accordance with the then applicable eminent domain statutory procedures, three special commissioners were appointed to assess damages for the condemnation. TEX.REV.CIV.STAT.ANN. art. 3264(2) (Vernon 1968) (repealed 1983). The commissioners signed a notice setting a hearing to determine the amount of damages to which appellee was entitled for the condemnation. Although a copy of this notice was on file on the day of the hearing, appellee did not attend. Consequently, damages were assessed based upon appellant’s testimony. Appellee thereafter filed his objections to the award, and the cause was set for trial in the district court.

At the close of appellant’s trial evidence, appellee moved for a directed verdict on the grounds that notice to appellee was defective and that there was no return of the notice made to the special commissioners. The court granted the motion, holding that the condemnation proceeding was void and that appellant did not have a right to condemn the easement. The trial court then admitted evidence and submitted issues to the jury on the damages sustained by appellant's temporary possession of the easement and other ancillary matters. The court entered judgment awarding damages and possession of the easement to appellee, and ordered appellant to remove the pipeline from appellee’s property.

In its first two points of error, appellant contends that the trial court erred in granting appellee’s motion for directed verdict because the notice and return of notice were sufficient. To fully develop this issue we must examine the then existing condemnation laws and the factual situation before us.

Article 3264 contains detailed procedures to be followed in order for an entity to obtain and exercise the right of eminent domain. TEX.REV.CIV.STAT.ANN. art. 3264 (Vernon 1968) (repealed 1983). After the prospective condemnor has attempted fruitless efforts to agree with the landowner on the amount of condemnation damages, it must then file a petition in condemnation with the county judge. The judge will then appoint three special commissioners to assess damages. These commissioners must set a time and place for a hearing to assess damages, and must issue a notice informing the landowner of the time and place selected. The person serving that notice must return the notice to the commissioners on or before the day set for hearing, along with his return in writing stating how and when it was served. Only after notice has been perfected can the commissioners proceed to hear the parties and assess damages.

The specific facts of this case require a careful interpretation of this statute. A notice, signed by the commissioners, was filed stamped on the day of the hearing. Content-wise, this notice met the statutory requirements, but contained an additional statement that the original' statement in condemnation was attached. The file-stamped notice did not include this attachment. Appellee, however, admitted that he indeed received a copy of the notice along with appellant’s first amended statement in condemnation. It appears from the record that the trial court’s theory for granting the directed verdict hangs on the narrow thread that the failure to include the original statement was a fatal deficiency. If this is indeed the court’s construction of the statute, we cannot agree with such a hypertechnical interpretation.

Article 3264 by its plain terms does not require that the statement be attached to either the notice or the return; and the contents of the notice here issued undisput-edly met the statutory requirements. While the notice alleged that the statement was attached, such statement was already included among the papers of the court, and it is therefore inconsequential that it was not attached to the notice. Furthermore, appellee admitted he received a copy of the amended statement, which contained no major deviations from the original statement. Even under the standard of strict statutory compliance, we believe that appellant met its burden of proof of proper notice. See Coastal Industrial Water Authority v. Celanese Corporation of America, 592 S.W.2d 597, 599 (Tex.1979).

Appellee suggests, however, that article 1, section 17 of the Texas constitution, which prohibits the taking or damaging of property without compensation, mandates that the statement in condemnation must be attached or the substance of it stated in the notice. While recognizing that a landowner is constitutionally entitled to know of the damages to which he is entitled and the evidence necessary to that end, we believe that appellee’s receipt of the amended statement in condemnation satisfied this requirement. See Coastal Industrial Water Authority, 592 S.W.2d at 601.

Similarly, appellant attacks the directed verdict contending that the return of service was adequate. Again, the return of service, with the time and place of service, and a statement that the server was competent to testify, was on file with the commissioners. As appellee points out, however, the return did contain an inconsistency. The notice was served on May 11, but was notarized on May 8. Although the date of notarization is obviously incorrect, we do not believe that the error is such as to nullify the validity of the return of service, particularly in light of the fact that appellee admitted that he received the notice on May 11. The return contained the information required by article 3264 and was therefore sufficient to confer jurisdiction on the commissioners.

In a somewhat shotgun approach, appellee attacks various other “errors” in the pre-trial procedures. While we do not find it necessary to address each of these alleged “defects”, two contentions are noteworthy. First, appellee claims that the notice was invalid because it alleged that the statement in condemnation had been filed with the district clerk instead of with the county judge as required by article 3264. Appellee fails to note that the statement was in fact signed by the judge as filed with him. Secondly, appellee suggests that the notice was fatally defective because it was directed only to him, and was not delivered to the condemnors. This contention is meritless. The requirement of article 3264 that all interested parties be notified refers only to landowners, not to condemnors. See Rotello v. Brazos County Water Control & Improvement District, 574 S.W.2d 208, 212 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). Both these and appellee’s additional attacks on the pre-trial procedure are not controlling, and further discussion thereof is unnecessary.

In summary, the purpose of the condemnation notice requirements is to insure the landowner’s attendance and representation at the commissioner’s damages hearing. The statutory burdens were here satisfied and the minor deviations were not such as to defeat the purposes of the enactment. A holding to the contrary would establish a rule of hyper-technicality in a situation where the law and the evidence dictate that the statutory requirements were met. Appellant’s first and second points of error are sustained.

Having thus decided that the notice of the commissioner’s hearing was sufficient, the final matter for our resolution is the ultimate disposition of the case. Appellant requests that the cause be remanded, but the question remains of the extent of the issues to be re-tried. While remands solely on the issue of damages are frequently not feasible, the special character of condemnation proceedings lends itself to exactly such a procedure. The general rule that it is improper for a court to reverse and remand on the single issue of unliqui-dated damages finds logical application in the typical case where damages are a reflection of the liability creating them. See TEX.R.CIV.P. 434; Eddings v. Black, 602 S.W.2d 353, 359 (Tex.Civ.App.—El Paso 1980), writ ref’d n.r.e. 615 S.W.2d 168 (Tex.1981). Consequently, if a ease is reversed on a liability issue, the damages must also be redetermined. Condemnation proceedings, however, are not equivalent to the typical liability lawsuit. Should it be necessary for a condemnation suit to be tried in the court, the primary, and often only, issue for the jury’s determination is damages for the taking of the land. Furthermore, the amount which the jury can award is based solely upon land valuation, and does not in any way reflect upon any ancillary matters which might be proper for the jury's consideration. A remand for determination of damages only is therefore a viable alternative in a condemnation case.

We believe that this procedure is proper under the facts now before us. The notice was proper as a matter of law, as discussed fully above. Additional, ancillary factual disputes were presented to the jury and answered favorably to the appellant. The only issue left for the jury’s further consideration is that of damages.

We reverse and remand the cause for a determination of the condemnation award. In accordance with this holding, appellant does not have to remove the pipeline from appellee’s land.

      . Eminent domain enactments are now located at TEX.PROP.CODE ANN. chapter 21 (Vernon 1984).

      . In this particular case the cause was presented to the district court.


source: Caselaw Access Project

author: PAUL PRESSLER, Justice.

license: Public Domain

text:
    PRAIRIE VIEW A & M UNIVERSITY, Appellant, v. Sharlotte THOMAS, Appellee.
    No. B14-84-355-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 6, 1984.

      Jim Mattox, Atty. Gen., Charles S. Black, Jr., Asst. Atty. Gen., Austin, for appellant.
    Harold Lloyd; Law offices of Harold Lloyd, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from a damages award of $100,000.

On the night of November 28, 1976, ap-pellee fell into an excavation near a sidewalk on appellant’s campus, where she was a student. She was severely burned by steam pipes and standing water at the bottom of the hole. Appellee brought suit under the Texas Tort Claims Act alleging that appellant, an agency of the State of Texas, was negligent in warning of the existence of the hole or making it safe. The jury returned a verdict finding that appellant breached a duty of ordinary care to appellee with respect to warnings, lights, signs, and covers around the hole, and assessed damages against appellant. We affirm.

Appellant presents two points of error. In the first, it alleges the trial court had no jurisdiction to hear this cause because ap-pellee failed to offer proof of permission to sue the State. Appellant admits that appel-lee properly pled permission to sue the State under the general law grant of the Texas Tort Claims Act, TEX.REV.CIV. STAT.ANN. art. 6252-19 § 4, but argues appellee should have offered the statute into evidence to prove the statutory grant of authority. We disagree.

The authority granted by a state statute is jurisdictional, as a state cannot be sued without its consent. Hansen v. Blackmon, 169 S.W.2d 955, 957 (Tex.Civ.App.—El Paso 1942), aff'd, 140 Tex. 536, 169 S.W.2d 962 (1943); State v. Isbell, 127 Tex. 399, 94 S.W.2d 423, 424 (1936). Consent to sue the State may be obtained through legislative action only, either through general law, resolution or bill. Contran Corp. v. Bullock, 567 S.W.2d 616, 617 (Tex.Civ.App.—Austin 1978, no writ). A Court of Appeals is required to take judicial notice of the public laws of the state. Addison v. Addison, 530 S.W.2d 920, 921 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). We hold that the judgment correctly recognized that appellee had the legal right to sue the State since the court would have been without jurisdiction to hear the case if consent granted by Art. 6252-19 § 4 had been lacking. See Hansen v. Blackmon, 169 S.W.2d at 957. Appellant’s first point of error is overruled.

In its second point of error, appellant claims the trial court erred in submitting the liability issues to the jury under a standard of ordinary care rather than under that owed by a licensor to a licensee. Section 18(b) of Art. 6259-19 sets forth the standard of care owed by the government when premise defects are involved. It is the same duty owed by private persons to licensees on private property unless payment has been made by the claimant for use of the premises or the defect is classified as a “special” defect. A licensor must avoid injurying a licensee by willful, wanton or grossly negligent conduct; however, when the licensor has actual knowledge of a dangerous condition and the licensee does not, the licensor’s duty is to warn the licensee or make the condition reasonably safe. Lower Neches Valley Authority, 536 S.W.2d 561, 563 (Tex.1976); State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974). The difference between the burden in this situation and one where a special defect exists is that the State must warn of a special defect even if it has only constructive knowledge of it. Miranda v. State, 591 S.W.2d 568, 570 (Tex.App.—El Paso, no writ). See, County of Harris v. Eaton, 573 S.W.2d 177, 179-180 (Tex.1978).

In the instant case, the trial court granted appellee’s motion that it hold as a matter of law that appellant had actual notice of the excavation where the incident occurred as the evidence demonstrates that appellant created the condition and under the Texas Tort Claims Act is deemed to have actual notice of the defect. Further, evidence presented by appellee was to the effect that she had no knowledge that a hole or any defect existed there and that there were no barricades or warnings of any kind around it. We hold, therefore, that an exception to the licensor-licensee standard of care was created, and appellant’s duty was to warn appellee, as well as other students, or make the condition reasonably safe. The trial court correctly submitted the ■ liability issue under the standard of ordinary care. Thus it is not necessary for us to determine whether the excavation into which appellee fell was a special defect within the meaning of § 18(b) of art. 6259-19. Appellant’s second point of error is overruled.

We affirm the judgment of the trial court.


text:
    U.S. FIRE INSURANCE CO., Appellant, v. TWIN CITY CONCRETE, INC., et al., Appellees.
    No. B14-84-463CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 6, 1984.

      Robert E. Speed, Houston, for appellant.
    Charles T. Newlin, Houston, for appel-lees.
    Before PAUL PRESSLER," ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, United States Fire Insurance Company, appeals from a judgment against it in a suit for reimbursement under an indemnity contract. The jury found that appellant had not paid any money under the contract and a take nothing judgment was rendered upon the verdict in favor of appel-lees, Twin City Concrete, Inc., and its owners, Bert C. and Doris Thompson. We affirm.

In its first point of error, appellant asserts that the trial court erred in overruling appellant’s motion for judgment non obstante veredicto because the evidence proves conclusively as a matter of law that appellant paid thirty thousand (30,000.00) dollars to the State of Texas and Special Issue Number 1 should not have been submitted to the jury. In appellant’s second point of error, it alleges that the trial court erred in overruling appellant’s motion for new trial because the jury’s finding to Special Issue Number 1 that appellant made no payment to the State of Texas is so against the great weight and preponderance of the evidence as to be manifestly unjust. Points of error three and four assert that the trial court erred in not admitting a copy of appellant’s draft (plaintiff’s exhibit 8) and a copy of appellant’s loss draft acceptance authority (plaintiff’s exhibit 9) as pri-ma facie evidence of the fact and extent of appellant's liability under the sales tax bond in any claim or suit against appellees.

On October 7, 1975, appellees Twin City Concrete, Inc., by its president, Bert C. Thompson and Bert C. Thompson and Doris Thompson, Individually, applied to appellant for a sales tax bond in the amount of fifteen thousand (15,000.00) dollars, effective immediately. On that date, appellant issued a continuous bond in the requested amount. The bond was automatically renewed from year to year. It required appellant as surety to pay to the State of Texas an amount up to fifteen thousand (15,000.00) dollars for sales taxes not paid by appellees for each year the bond was in effect. The bond application contained an indemnification paragraph in which appel-lees agreed to indemnify appellant from liability and loss incurred by reason of furnishing the bond. The application also contained a paragraph which provided:

... that copies of drafts or other evidences of payment by Surety shall be considered prima facie evidence of the fact and extent of Surety’s liability in any claim or suit brought by Surety against the Undersigned.

In its original petition appellant alleged that it was called upon by the Texas Comptroller of Public Accounts to make payment for delinquent sales taxes for the years of 1976 and 1977 owed by Twin City Concrete, Inc., and that appellant paid thirty thousand (30,000.00) dollars to the State of Texas pursuant to its liability under the bond.

At trial Ronald Kaminski, the claims supervisor for the parent company of appellant, testified. He was able to produce several documents which were admitted. They included: a copy of the bond application, a certified copy of the bond, a copy of a letter of inquiry by appellant to the state Comptroller of Public Affairs as to whether the bond in this case had been replaced or terminated by another corporation, payment demand letters from the Comptroller of Public Affairs to appellant, copies of letters of demand from appellant to appel-lees, a copy of the draft for thirty thousand (30,000.00) dollars issued to the State of Texas (admitted for limited purposes), a copy of appellant’s loss draft acceptance authority (also admitted for limited purposes).

In its first point of error, appellant argues that the trial court erred in not granting its motion for judgment non obstante veredicto because the evidence proves as a matter of law that it paid thirty thousand (30,000.00) dollars to the State of Texas and that Special Issue Number 1 should not have been submitted to the jury. Special Issue Number 1, the only issue submitted to the jury, read as follows:

What sum of money, if any, do you find from a preponderance of the evidence that Plaintiff, UNITED STATES FIRE INSURANCE COMPANY paid to the State of Texas through the Comptroller of public accounts in behalf of the Defendant, TWIN CITY CONCRETE, Inc. for delinquent sales taxes?
Answer in dollars and cents, if any. Answer: None.

A trial judge can disregard a jury’s answer to a special issue only when (1) it has no support in the evidence or, (2) the issue is immaterial. Only when the evidence conclusively establishes an opposite finding may a judge substitute his own finding. Miranda v. Joe Myers Ford, Inc., 638 S.W.2d 36, 38 (Tex.App.—Houston [1st Dist.] 1982, no writ). In considering a motion for judgment non obstante veredicto, the trial court and the Court of Appeals must view all of the evidence in a light most favorable to the jury’s verdict and indulge every reasonable intendment in its favor. Transport Insurance Co. v. Liggins, 625 S.W.2d 780, 783 (Tex.App.—Fort Worth 1981, writ ref’d n.r.e.), citing Dodd v. Texas Farm Products Co., 576 S.W.2d 812 (Tex.1979).

Viewing the evidence in the light most favorable to the jury’s verdict, we find that the trial court did not err in overruling appellant’s motion for judgment non obstante veredicto. The evidence did not conclusively establish that appellant paid any money to the State of Texas on behalf of appellees. The copy of the draft which allegedly paid the delinquent taxes does not show payment. It merely shows that such a draft was made, not paid. In fact, the judge allowed the copy of the draft into evidence only for the purposes of proving that the copy was found among the records of appellant. The evidence shows it was a copy of the draft made before it allegedly was mailed to the Texas State Treasurer. Without more proof, the evidence cannot conclusively establish the fact that appellant paid any sum of money to the State of Texas on behalf of appellees. Point of error one is overruled.

In its second ground of error, appellant argues that the trial court erred in overruling its motion for a new trial because the jury’s finding that appellant made no payment to the State of Texas is so against the great weight and preponderance of the evidence as to be manifestly unjust.

When a factual insufficiency point is presented the appellate court is “required to consider all of the evidence in deciding the question.” Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We must consider the evidence and its reasonable inferences in the light most favorable to the jury’s answer and disregard all contrary evidence. United General Insurance Exchange v. Brown, 628 S.W.2d 505, 509 (Tex.App.—Amarillo 1982, no writ).

We have reviewed all of the evidence in a light most favorable to the jury’s answer. We conclude that there is ample evidence of probative force to support the jury’s answer to the payment issue. As we have stated, the copy of the draft only proved execution. In addition, the other documents introduced into evidence do not establish payment. The jury’s answer was not against the great weight and preponderance of the evidence. Appellant’s second point of error is overruled.

In points of error three and four appellant complains that the trial court erred in not admitting a copy of appellant’s draft or a copy of its loss draft acceptance authority. Appellant claims that the portion of the bond application which provides that copies of drafts or other evidences of payment by appellant will be prima facie evidence of the appellant’s liability in a suit between appellant and appellee, should control. Under this theory, the trial court should not have limited the admissibility of the copies. We do not agree.

The portion of the agreement which defines prima facie evidence cannot alter the categories of admissible and inadmissible evidence. The copies of the draft and the loss draft acceptance authority did not show payment and, therefore, could not be admitted to prove payment. Without proof of payment, appellant has failed to prove an element of its cause of action and this failure is a basis for rendering a judgment against it. Amarillo National Bank v. Terry, 658 S.W.2d 702, 705 (Tex.App.—Dallas 1983, no writ). We overrule appellant’s last two grounds of error.

Accordingly, we affirm the judgment of the trial court.


author: PAUL PRESSLER, Judge. ELLIS, Justice,

text:
    Danniel RIVERA, Appellant, v. The STATE of Texas, Appellee.
    No. B14-82-778CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 13, 1984.

      Michael M. Phillips, Angleton, for appellant.
    Jim Mapel, Angleton, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   PAUL PRESSLER, Judge.

This is an appeal from a conviction of sexual abuse of a child.

Appellant was employed as a part-time teacher at the Cherry Hill Day Care Center in Brazoria County. The complainant was among the students appellant supervised at nap-time. Appellant’s first questionable conduct occurred when appellant allegedly zipped the child’s pants after he went to the restroom and felt the child’s penis through his pants. On another day, appellant took the child to a more enclosed, private area of the room where the children were napping, unbuttoned the child’s pants and put his mouth on the child’s penis. The child complained to his father, who reported the incident. Police set up a surveillance at the school and arrested appellant.

Appellant was charged with sexual abuse of a child and indecency with a child by contact. He was convicted of sexual abuse under TEX.PENAL CODE ANN. § 21.10(a) and § 21.11(a)(1) and sentenced to four years in the Texas Department of Corrections and a fine of $2500.00. We affirm.

Appellant presents two grounds of error on appeal. In the first, he contends that the prosecuting attorney, by requiring the appellant to place his mouth on the penis of an anatomical doll in the presence of the jury, caused such bias and prejudice against him that he was denied a fair trial.

The child testified at trial to the second event, and his father testified that the child had complained to him about the incidents. During direct examination, appellant admitted he had placed his mouth on the child’s penis. The prosecutor requested on cross-examination that appellant demonstrate the act on a doll. The State contends the demonstration was necessary to resolve the disputed issues of appellant’s intent and the nature of his act under § 21.10(a). One element of that section is that the act is committed “with intent to arouse or gratify the sexual desire of any person.” TEX.PENAL CODE ANN. § 21.01(1)(A) (Vernon Supp.1984) defines “deviate sexual intercourse” as “any contact between any part of the genitals of one person and the mouth or anus of another person.”

The State introduced appellant’s statement to police in which he admitted that he placed his mouth in contact with the boy’s penis and “licked it for about thirty seconds or less.” In his testimony in open court, appellant denied licking the child’s penis, but admitted he placed his mouth on it. He further testified in court that he did not at any time do anything to the child which gratified his own sexual desire.

The State’s ability to meet its burden of proof was complicated by the expert testimony of a psychologist called by appellant who testified that appellant had latent homosexual conflicts, and that “Most of the time it is very threatening, it is non-gratifying, they fear regret and remorse and literally shrink away from that.”

Admission of offensive conduct is not necessarily an admission of guilt of the offense charged. In denying that he licked the child’s penis and that he committed the act with the necessary intent to gratify his sexual desire, appellant attempts to negate an essential element of the offense. The State contends the demonstration was necessary to help establish this element and to rebut appellant’s testimony.

The requisite specific intent to arouse or gratify the sexual desire of any person may be inferred from the defendant’s conduct, his remarks and all surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App.1981); Bowles v. State, 550 S.W.2d 84, 85 (Tex.Crim.App.1977). In McKenzie, the complainant was allowed to demonstrate to the jury where the accused touched her by demonstrating on one of her own dolls.

In the instant case, there was sufficient reason to allow the questioned demonstration. However, even if it were error, it was harmless error. Error is harmless if no reasonable possibility exists that it might have affected the punishment assessed. Johnson v. State, 660 S.W.2d 586, 538 (Tex.Crim.App.1983). In view of the evidence of appellant’s guilt and the defense presented by him, no reasonable possibility existed that the demonstration affected the punishment assessed.

We find that appellant was not denied a fair trial because the State required him to demonstrate this act. His first ground of error is overruled.

Appellant contends in the second ground of error that the trial court erred in allowing the State to show that some of his friends were homosexuals. He argues this was an attempt to impeach his testimony. It is correct that the character of one’s associates is no evidence of guilt; it has also been held that one may not be impeached by the character of his associates. Gant v. State, 513 S.W.2d 52, 53 (Tex.Crim.App.1974). However, appellant’s defense was based on his assertion that his conduct was an unexplainable, irresistible impulse attributable to his latent homosexual feelings. The introduction of evidence of his active homosexual conduct was an attempt to rebut the testimony of the psychologist.

It is not until the defendant has placed his own character in issue that the State may introduce evidence of his bad character. Ramirez v. State, 656 S.W.2d 82, 83 (Tex.App.—Tyler 1983, pet. ref’d). An accused cannot invite error and then complain of it. Ex Parte Guerrero, 521 S.W.2d 613, 614 (Tex.Crim.App.1975). The appellant placed his own character is issue through his defense and thus “invited” this testimony. We overrule appellant’s second ground of error.

The decision of the trial court is affirmed.

ELLIS, J., dissents.

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the other members of the panel, I would like to record my respectful dissent.

Appellant, Daniel Rivera, appeals from a judgment of conviction of sexual abuse of a child. The jury assessed his punishment at four (4) years in the Texas Department of Corrections and a fine of $2500.00. I would reverse.

Appellant presents two grounds of error. In his first ground he contends that the court erred in allowing the prosecuting attorney to make appellant place his mouth on the penis of an anatomical doll in the presence of the jury. Appellant claims that this caused such bias and prejudice against him by the jury that he was denied a fair trial. I agree.

Appellant’s attorney timely objected to this procedure stating that it was grotesque, that the verbal description was sufficient, and that requiring his client to simulate something with a doll was totally disgusting, inflammatory, and prejudicial. I find that the court erred because this was unnecessary because appellant had signed a written confession, that was allowed into evidence, in which he admitted the offense. On direct examination in court he admitted and confessed to the elements of the offense and he admitted that he put his mouth on the complainant’s penis. There cannot be any other purpose or intent by the prosecutor in having appellant commit such an act upon an anatomical doll other than to inflame and prejudice the minds of the jurors against appellant.

This evidence may have been relevant but should have been excluded by the trial judge because its probative value was substantially outweighed by the danger of unfair bias, prejudice, and needless presentation of cumulative evidence.

The State contends the demonstration was necessary to help establish a element of the offense of sexual abuse of a child. The element, the State contends, is that the act be committed with the intent to arouse or gratify the sexual desire of any person. This specific intent to arouse or gratify the sexual desire of any person can be inferred from appellant’s conduct, his remarks, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App.1981); Bowles v. State, 550 S.W.2d 84 (Tex.Crim.App.1977). I fail to see how this demonstration could show appellant gratified his sexual desires at the time of the offense.

The majority opinion states that if this was error that it was harmless, I do not agree.

The test for harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction or affected the punishment assessed. Clemons v. State, 605 S.W.2d 567 (Tex.Crim.App.1980).

Contrary to the majority, I cannot state that there is a reasonable possibility that this inadmissible evidence was harmless error, especially when one considers the fact that appellant filed an application for probation and the jury assessed punishment at a period of four (4) years in the Texas Department of Corrections. I believe that in the jury’s assessment of punishment it is quite conceivable that the jury could have been swayed by bias and prejudice perceived from viewing the demonstration of appellant putting his mouth on the penis of the anatomical doll.

I feel that this case should be reversed because appellant was denied a fair trial.


author: ROBERTSON, Justice.

text:
    TEXAS FIRE AND CASUALTY COMPANY, et al., Appellants, v. HARRIS COUNTY BAIL BOND BOARD, Appellee.
    No. B14-84-265CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 13, 1984.

      Michael A. Maneess, Houston, for appellants.
    Billy E. Lee, Asst. Co. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

Texas Fire and Casualty Company brings this appeal requesting that we determine a local rule of the Harris County Bail Bond Board to be invalid. In five points of error, appellants contend the trial court erred in refusing to invalidate appellee’s rule which required a $100,000.00 security deposit in order for a bail bondsman to become licensed in Harris County. We agree, and accordingly reverse and render judgment.

The relevant facts are briefly stated. Appellants, a corporation certified to do business by the State Board of Insurance and two of its agents, applied for licenses as bail bondsmen. The applications were denied by appellee because appellants did not place an irrevocable letter of credit in the amount of $100,000.00 on deposit with the county sheriff as required by the Harris County Bail Bond Board Local Rules. Contending that this requirement conflicted with the statutory enactment licensing and regulating bail bondsmen, appellants appealed the denial of their license applications. See TEX.REV.CIV.STAT.ANN. art. 2372p-3 (Vernon Supp.1984). Pursuant to section 11 of that act, the merits of issue were tried in district court. The trial court upheld the local rule, thereby denying appellants’ claims for relief. Appellants now re-urge these claims on appeal.

Section 5 of the statute regulating bail bondsmen contains a provision granting local bail bond boards rule-making powers. TEX.REV.CIV.STAT.ANN. art. 2372p-3 § 5(f)(1) (Vernon Supp.1984). These powers, however, are not without precedentially imposed limitations. Administrative agencies, such as the Harris County Bail Bond Board, can adopt only such rules as are authorized by and consistent with their statutory authority. State Board of Insurance v. Deffebach, 631 S.W.2d 794, 798 (Tex.App.—Austin 1982, writ ref’d n.r.e.). Similarly, such agencies cannot adopt rules and regulations which impose additional burdens, conditions or restrictions in excess of or inconsistent with statutory provisions. Bexar County Bail Bond Board v. Deckard, 604 S.W.2d 214, 216 (Tex.Civ.App.—San Antonio 1980, no writ). Our task, then, is to determine whether this local rule conflicts with or exceeds the statutory authority of article 2372p-3.

Section 6 of article 2372p-3 directs that certain items must be included with the license application. Specifically, the applicant must furnish a statement indicating the amount which the applicant intends to place on deposit to secure his bonding obligations. TEX.REV.CIY.STAT.ANN. art. 2372p-3 § 6(a)(5). The importance of this amount is revealed in subsection (f) of this same section. Here, the statute provides that upon notification that the application has been tentatively approved, the applicant must deposit the amount indicated on the application; however, this amount cannot be less than $5,000.00. If the applicant is a corporation, subsection (f) requires an irrevocable letter of credit as a cash equivalent to satisfy any final judgment of forfeiture of any of its bonds.

These summaries of article 2372p-3 demonstrate the fatal inconsistencies between it and the local rules requiring the $100,-000.00 security deposit. First, the statute itself contains a $5,000.00 minimum. The flat $100,000.00 requirement itself is a minimum in direct conflict with the statutory authority. Secondly, section 6 clearly indicates that, with the exception of the $5,000.00 minimum, the applicant is to determine the amount of the deposit. The local rule takes this responsibility from the applicant and assumes it itself. The local rules thus impermissibly impose additional and conflicting burdens on bail bond applicants and consequently must fail.

This conclusion is further fortified by reference to the specific rules governing the corporation as a surety. TEX.REV. CIV.STAT.ANN. art. 2372p-3 § 7 (Vernon Supp.1984). Subsection (b) specifically states a certificate of authority to do business issued by the State Board of Insurance shall be conclusive evidence as to the sufficiency of the surety. Appellees’ local rule creating a precise monetary standard of security directly contravenes this provision.

We accordingly reverse the judgment of the trial court. We further render judgment that the Harris County Bail Bond Rules requiring a $100,000.00 security deposit are void.


author: J. CURTISS BROWN, Chief Justice.

text:
    OLSHAN DEMOLISHING COMPANY, Appellant, v. ANGLETON INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. A14-84-240CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.

      Ben A. Baring, Jr., DeLange, Hudspeth, Pitman & Katz, Houston, for appellant.
    Mark H. Neal, Kee & Patterson, Angle-ton, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This is an appeal in a contract action from a judgment entered in favor of Angle-ton Independent School District (School District or Appellee) at the close of Olshan Demolishing Company’s (Olshan or Appellant) evidence. Olshan argues the trial court erred in sustaining a motion for judgment (tantamount to an instructed verdict in a judge tried case) for the School District on both Olshan’s attempt to compel arbitration between the parties and the breach of contract cause of action. We reverse and remand.

This suit arises out of a contract for the demolition of a two story building on a campus of the School District. The project was for the demolition and removal of the building, foundation, paving, and sidewalks. After the removal of these items, the site was to be regraded. Work on the project was not to start until May 29, 1982 and was to be completed by August 10, 1982. After bids were received by the School District, the contract was awarded to Olshan.

During the demolition work, on or about August 3, 1982, Olshan discovered three additional slabs underneath at least part of the building. These additional slabs were not shown on the architectural drawings upon which Olshan had based its bid. Representatives of Olshan testified that they had not known of the existence of these three additional slabs. A representative of Appellee knew there was more than one slab under the building but believed that he had so informed all of the contractors bidding on the project.

Appellant notified the School District’s architect that the additional slabs had been encountered and requested additional payment for the work and materials which would be required to remove these slabs. The request for additional payment was rejected by Appellee. Prior to a written request for additional compensation, the three slabs were removed.

Pursuant to the contract between the parties, Appellant sought arbitration over the dispute of whether it was entitled to additional compensation for the removal of the three additional slabs. Appellee denied that the dispute was subject to arbitration. Unable to get this dispute arbitrated, Appellant filed suit seeking the District Court to compel Appellee into arbitration or, in the alternative, to award damages for breach of contract. The case was tried to the court sitting without a jury. After Olshan presented its evidence, the School District made an oral motion for judgment. The motion was granted.

Appellant timely and properly perfected appeal to this court. In its brief, Olshan raises two points of error attacking the trial court’s action in granting judgment in favor of the School District.

In a non-jury case, when a defendant moves for judgment at the close of the plaintiff’s case, the judgment rendered for the defendant is reviewed on appeal under the same standard as when a trial court instructs a verdict in a jury trial. McDaniel v. Carruth, 637 S.W.2d 498, 504 (Tex.App.—Corpus Christi 1982, no writ); Plumb v. Stuessy, 603 S.W.2d 351, 354 (Tex.Civ.App.—Austin 1980), rev’d on other grounds, 617 S.W.2d 667 (Tex.1981); City of College Station v. Seaback, 594 S.W.2d 772, 777 (Tex.Civ.App.—Waco 1979, no writ); Eikel v. Bristow Corp., 529 S.W.2d 795, 797 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). This court may consider only the evidence and inferences which tend to support the plaintiffs case. The judgment of the trial court will be affirmed if there is no evidence supporting one or more elements of the plaintiffs case. McDaniel, 637 S.W.2d at 504; City of College Station, 594 S.W.2d at 777.

Point of error one is that the trial court erred in granting judgment in favor of the School District because Olshan was entitled to arbitration as a matter of law or there was sufficient evidence raising an issue of whether Olshan was entitled to arbitration. Documents which were incorporated into the contract do provide for arbitration of disputes. Appellant concedes that arbitration under the Texas General Arbitration Act is not available due to the failure of the contract to have the required notice that the contract is subject to arbitration. TEX.REV.CIV.STAT.ANN. art. 224-1 (Vernon Supp.1984). Olshan argues that it has a Common Law right to have this dispute arbitrated which is independent of the Texas General Arbitration Act. The School District responds that Ol-shan is not entitled to arbitration for two reasons: 1) Appellant has waived arbitration by failing to comply with the requirements of the contract; and 2) the agreement to arbitrate has been revoked;

The Supreme Court has determined that a common law right to arbitration exists which is an alternative to the statutory method. See L.H. Lacy Co. v. City of Lubbock, 559 S.W.2d 348 (Tex.1977). Whether Olshan is entitled to that common law right depends on whether that right has been waived and whether there has been a valid revocation of the agreement providing for arbitration.

The School District argues that Ol-shan waived its right to arbitration by failing to comply with the contract. Appellee contends that paragraph 4.2.2 of the Supplemental Conditions to the contract has not been complied with. That provision provides:

After reporting to the Architect any error, inconsistency, or omission he may discover in the Contract Documents, the Contractor shall not proceed with any Work affected without obtaining specific written instructions from the Architect.

We are unable to agree that that provision precludes Olshan’s claim.

We believe that paragraph 4.2.2 must be read in conjunction with paragraph 4.2.1 of the General Conditions to the contract. Paragraph 4.2.1 provides:

The Contractor shall carefully study and compare the Contract Documents and shall at once report to the Architect any error, inconsistency or omission he may discover. The Contractor shall not be liable to the Owner or the Architect for any damage resulting from any such errors, inconsistencies or omissions in the Contract Documents. The Contractor shall perform no portion of the Work at any time without Contract Documents or, where required, approved Shop Drawings, Product Data or Samples for such portion of the Work.

As we read these two provisions, they apply to errors, inconsistencies, and omissions in the Contract Documents which are unknown to the Contractor, Owner and Architect. It would make no sense for the Contractor to give notice to the Architect and wait for written instructions from the Architect because of an omission in the Contract Documents if both the Owner and Architect knew of the condition in question.

The existence of three additional slabs was not an error, inconsistency, or omission in the Contract Documents which was unknown to the School District and the Architect. A representative of Appellee informed other contractors bidding on the job of the existence of these additional slabs. Because the existence of the slabs was not unknown to the Architect and Ap-pellee, paragraph 4.2.2 does not apply and does not preclude Olshan’s claim.

Appellee also argues that under paragraph 12.3.1 of the General Conditions of the contract, Olshan was required to give written notice to the Architect before executing the work if Olshan wished to make a claim for an increase in the contract sum. Paragraph 12.3.1 entitled “Claims For Additional Cost” provides:

If the Contractor wishes to make a claim for an increase in the Contract Sum, he shall give the Architect written notice hereof within twenty days after the occurrence of the event giving rise to such claim. This notice shall be given by the Contractor before proceeding to execute the Work, except in an emergency endangering life or property in which case the Contractor shall proceed in accordance with Paragraph 10.3. No such claim shall be valid unless so made. If the Owner and the Contractor cannot agree on the amount of the adjustment in the Contract Sum, it shall be determined by the Architect. Any change in the Contract Sum resulting from such claim shall be authorized by Change Order, (emphasis added).

Appellee argues that Olshan did not give notice prior to removing the slabs and the claim is invalid under the contract itself.

Olshan argues that paragraph 12.3.1 is inapplicable and that the controlling contractual provision is paragraph 12.2.1 entitled “Concealed Conditions” which provides:

Should concealed conditions encountered in the performance of the Work below the surface of the ground or should concealed or unknown conditions in an existing structure be at variance with the conditions indicated by the Contract Documents, or should unknown physical conditions below the surface of the ground or should concealed or unknown conditions in an existing structure of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract, be encountered the Contract Sum shall be equitably adjusted by Change Order upon claim by either party made within twenty days after the first observance of the conditions.

Appellant contends that this provision more specifically deals with this situation.

As a general rule, contracts will not be construed so as to render some of their terms meaningless. Blaylock v. American Guarantee Bank Liability Insurance Co., 632 S.W.2d 719, 722 (Tex.1982). If this contract were to be construed as Appellee argues, there would be no need for the contract to contain the “Concealed Conditions” provision and an express term of the contract would be rendered meaningless. We believe that the contracting parties intended that a “Concealed Condition” was to be treated differently than a “Claim for Additional Costs.” Under these circumstances, the provision on concealed conditions is controlling and the Appellant was not required to follow the notice requirements of paragraph 12.3.-1.

The School District does not dispute the testimony of the three witnesses for Ol-shan who testified that the existence of the three additional slabs was a condition that differed materially from those usually encountered in the demolition of a building like this. The School District also does not dispute that Olshan made a claim, within twenty days, that the Contract be equitably adjusted by a Change Order. Appellant has procedurally followed the requirements of the controlling contractual provision and has not waived its right to have this dispute arbitrated.

The School District also argues that it has revoked the agreement to arbitrate the dispute. The District argues that an exec-utory agreement to arbitrate future disputes is not specifically enforceable and either party may revoke at any time before arbitration results in an award. See With ers—Busby Group v. Surety Industries, Inc., 538 S.W.2d 198 (Tex.Civ.App.—Dallas 1976, no writ); Deep South Oil Co. of Texas v. Texas Gas Corp., 328 S.W.2d 897 (Tex.Civ.App.—Beaumont 1959, writ ref’d n.r.e.). In fact, this court has previously stated that “an agreement to submit a matter to arbitration may be revoked by either party to that agreement at any time before the award is made.” Carpenter v. North River Insurance Co., 436 S.W.2d 549, 551 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). The record in this case establishes that the School District revoked the agreement to arbitrate.

In response, Olshan directs this court to L.H. Lacy Co. v. City of Lubbock. In that case, as stated above, the Texas Supreme Court reaffirmed the existence of a common law right to arbitration, separate and distinct from any statutory right. That opinion also discussed the enforceability of agreements to arbitrate future disputes. Chief Justice Greenhill, writing for the court, stated that “courts have refused specific enforcement to agreements to arbitrate future disputes (emphasis in original).” L.H. Lacy Co., 559 S.W.2d at 352. However, the opinion continued by arguing that this doctrine was developed in a time when lengthy dockets and court congestion was not a problem as it is today. Judge Greenhill emphasized that allowing disputes to be arbitrated would help in alleviating the burden on the courts and would allow greater efficiency in the handling of disputes. Although it did not so hold, the opinion states that “the policy of refusing specific enforcement to executory arbitration agreements is not justifiable when the case fits within the common mold.” Id.

We find the reasoning of the L.H. Lacy Co. opinion to be sound. By enforcing these agreements to arbitrate, disputes will be resolved faster and more efficiently by arbitrators who have knowledge of the general conditions of the dispute. Encouraging arbitration will reduce some of the backlog in our trial courts. We recognize that Chief Justice Greenhill’s discussion on this point was dicta, however, even dicta in a Supreme Court opinion is persuasive to an appellate court. We hold that a party to an agreement to arbitrate future disputes may obtain specific enforcement of that agreement despite the attempted revocation of the arbitration agreement by another party to that agreement.

Because Olshan has not waived its right to arbitration under the contract and the agreement may be specifically enforced despite the District’s attempted revocation, the trial court erred in rendering judgment for the School District on the arbitration claim at the end of Olshan’s evidence. Point of error one is sustained.

Olshan’s second point of error is that the trial court erred in granting judgment for the School District because there was sufficient evidence raising a fact issue on whether the District breached the contract by failing to pay for the additional work performed by Olshan. Olshan presented the testimony of three witnesses that the additional slabs were “concealed conditions.” The School District responds that the Architect conclusively found that there was no “concealed condition” and that decision is binding.

Appellee relies on paragraphs 2.2.7 and 2.2.8 of the contract which provide that the Architect is the interpreter of the requirements of the Contract Documents and the Architect shall render such interpretations. The Architect did decide that the additional slabs were not a “concealed condition.” The School District relies on case law that a decision of the Architect is final, conclusive, and binding on the parties. See Austin Bridge Co. v. Teague, 137 Tex. 119, 152 S.W.2d 1091 (1941); City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989 (1941).

If the contract did not provide the effect to be given the Architect’s decision, Appel-lee’s argument would be more persuasive. However, the contract does provide the effect to be given such determinations. Paragraph 2.2.11 of the contract does provide that the Architect’s decisions shall be final “in matters relating to artistic ef-feet_” The next paragraph of the contract provides that “any claim, dispute or other matter in question between the Contractor and the Owner referred to the Architect, except those relating to Artistic effect ... shall be subject to arbitration upon the written demand of either party.” From the contract itself, the decisions of the Architect were not to be given final effect in non-artistic matters.

Appellee also argues that Olshan forfeited its claim by failing to comply with the notice requirements of paragraph 12.3.1 of the contract. As stated above, this situation is controlled by paragraph 12.2.1 and not paragraph 12.3.1. In addition, there is evidence that Olshan did comply with the requirements of paragraph 12.2.1. Because Olshan presented some evidence that there was a concealed condition and that paragraph 12.2.1 was complied with, the trial court erred in rendering judgment for the School District on the breach of contract claim. Point of error two is sustained.

The School District also argues that it is constitutionally prohibited from paying Olshan any amount in excess of the agreed and authorized contract sum. See TEX.CONST. art. Ill, § 53. Because the contract provided that the contract sum shall be equitably adjusted if a “concealed condition” was encountered, any such change would be pursuant to the contract and not in excess of the contract sum. An increase that was pursuant to the contract would not be constitutionally prohibited.

The judgment of the trial court is reversed and remanded.


author: DRAUGHN, Justice.

text:
    NORTHSIDE AUTO STORAGE, et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. A14-84-243-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.

      Raymond H. Stauffacher, Jr., Houston, for appellants.
    David E. Lueders, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

This is an appeal from a summary judgment granted in favor of the Plaintiff, Allstate Insurance Company (Allstate) in a suit brought under the Texas Consumer Protection-Deceptive Trade Practices Act (TEX.BUS. & COMM.CODE ANN. § 17.41 et seq.) and the Abandoned Motor Vehicles Act. TEX.REV.CIV.STAT.ANN. art. 6687-9 (now article 4477-9a). Appellants, Northside Auto Storage, Richard King (King), and Westside Wrecker Service, Inc., d/b/a Northside Auto Storage (Westside), raise seven points of error arguing that: there were genuine issues of material fact which preclude the granting of a motion for summary judgment; King was not liable under the DTPA in his individual capacity; the trial court erred in its award of attorney’s fees; the DTPA is not applicable in this case; and there was not sufficient summary judgment proof establishing the value of the car. We reverse and remand.

Appellee Allstate brought suit for the return of, or, in the alternative, the value of a 1978 Cadillac automobile. The car was owned by one of Allstate’s insureds but was stolen. Appellee paid its insured for the loss of the car in accordance with the insurance policy. Appellee introduced summary judgment evidence that it filed a Salvage Certificate of Title with the Texas Department of Highways and Public Transportation and the Salvage Certificate of Title became part of the car’s title history on December 5, 1980. On August 26, 1981, the car came into possession of Appellant Westside Wrecker Service, Inc., doing business as Northside Auto Storage. North-side, in turn, sold the car to King, who was a 50% owner of Northside, on October 5, 1981 for approximately $100. No notice was given to Allstate prior to that sale. On March 17, 1982, King sold the car to a third party.

Even if we assume there were no genuine issues of material fact and King could be held liable under the DTPA in his individual capacity, issues we do not address, the summary judgment must be reversed because the Trial Court incorrectly applied the Deceptive Trade Practices Act to these facts. Point of error six is that the Trial Court erred in ruling that the provisions of the DTPA were applicable to this case. Under this point, Appellants argue that Allstate was not a “consumer” as that term is used in the DTPA.

A party must qualify as a “consumer” in order to maintain a private cause of action under the DTPA. Riverside National Bank v. Lewis, 603 S.W.2d 169 (Tex.1980). The Supreme Court has recognized at least two requirements which must be met in order for a party to qualify as a consumer under the DTPA. The party must have sought or acquired goods or services by purchase or lease and those goods or services must form the basis of the claimant’s complaint. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981). Of course, if either requirement is not satisfied, a claimant may not bring suit under the DTPA. Id.

Allstate’s summary judgment proof failed to establish the prerequisite consumer status. There is no evidence that Appel-lee sought or acquired any goods or services in connection with this transaction. Even if Allstate could assert the consumer status of its insured, an issue we do not decide, Allstate failed to produce any summary judgment proof that Allstate’s insured had sought or acquired goods or services by purchase or lease in connection with this transaction.

We should not be misunderstood as requiring that a claimant be in privity with the party sued in order to satisfy the DTPA definition of consumer. That argument has been presented to and expressly rejected by the Supreme Court. Cameron, 618 S.W.2d at 541. However, there still must be some evidence that the claimant in a DTPA case has sought or acquired goods or services by purchase or lease from some person and that those goods or services form the basis of the complaint.

We acknowledge that our conclusion is contrary to the conclusion reached in Waters v. Hollie, 642 S.W.2d 90 (Tex.App.—Fort Worth 1982, no writ). In that case the sole question was whether Waters was a consumer. Waters’ car, after it had broken down, was towed from a department store parking lot to a storage facility. The car was stored at Hollie’s facility for three months prior to the time the car was located by the police. No notice was given to the owner that the car was being stored. When Waters finally saw her car, she discovered that approximately $800.00 of personal property was missing from inside the car. Waters filed suit against the garage operator under the DTPA for recovery of the value of the missing items. The Fort Worth Court of Appeals determined that, as a matter of law, Waters was a consumer. Appellee argues that “[bjecause this case is on all fours with Waters, this court should affirm....” We are unable to see how Allstate established by summary judgment proof that it or its insured sought or acquired any goods or services by purchase or lease. Certainly Allstate’s insured, who had been paid for his interest prior to the time the car came into the Appellants’ possession, did not seek or acquire any goods or services. The storage of the car by Appellants could be considered a service. However, there is nothing in the record to show that Allstate sought or acquired that service by purchase or lease. We hold that Allstate failed to show consumer status entitling it to seek recovery under the DTPA. Point of error six is sustained.

Because of our holding that the trial court incorrectly applied the DTPA to this case, we do not address Appellants’ remaining points of error.

The judgment is reversed and remanded.

J. CURTISS BROWN, C.J., not participating.


text:
    R.A. WASHBURN, et al., Appellants, v. C.W. KRENEK, et ux., Appellees.
    No. A14-84-369CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.

      Richard G. Sedgeley, James S. Kelly, Houston, for appellants.
    Richard Morrison, Houston, for appel-lees.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

This is an appeal from a judgment permanently enjoining Appellants from performing certain acts and awarding attorney’s fees to the Appellees pursuant to the Texas Deceptive Trade Practices — Consumer Protection Act (DTPA). TEX.BUS. & COMM.CODE ANN. § 17.41 et seq. (Vernon Supp.1984). Appellants, R.A. Wash-burn, Larry C. Washburn, James M. Wash-burn, and Charles E. Washburn, Individually, and the Washburn Partnership, a partnership of Larry C. Washburn, James M. Washburn and Charles E. Washburn, were enjoined from conveying, selling, using, leasing, attempting to sell or give away certain properties for any purpose in violation of certain deed restrictions listed in the judgment. Larry, James and Charles Washburn are the sons of R.A. Washburn. Appellants raise ten points of error attacking the special issues submitted to the jury and challenging the applicability of the DTPA to this case. We affirm.

In June of 1979, Mr. C.W. Krenek met James Washburn, at Washburn’s home on Kimberlee Lane in Harris County, about purchasing a lot on which to build a home. Krenek had seen a sign located at the intersection of Miller Road No. 2 and Kim-berlee Lane which said:

Home Sites

Large Tracts

Restrictions

227-3979 Call 456-0381

The first phone number was that of Wash-burn and Company, a surveying company. The second number on the sign was the number of James Washburn.

At the meeting, James Washburn gave Krenek a plat showing the layout of several lots and a set of restrictions. This layout was introduced into evidence as Plaintiff’s Exhibit No. 1. On this plat were forty-four lots owned by the three Wash-burn brothers. Of these lots, three of them had previously been conveyed to the three brothers by their father R.A. Wash-burn. Also on the plat were tracts of land marked “Washburn Estate” and “acreage.” These tracts were owned by R.A. Wash-burn.

James Washburn then showed Krenek several lots on Kimberlee Lane that were for sale. Krenek asked who owned the remainder of the land. James Washburn responded that either R.A. Washburn or the three brothers owned all the lots in the area. Krenek testified that he was told that the set of restrictions that he was given applied to all the lots on the plat. Krenek did not purchase a lot from James Washburn after that visit.

A few days later, Krenek returned and met with R.A. Washburn at his home on Kimberlee Lane. R.A. Washburn and Kre-nek discussed several lots. After discussing a lot next to R.A. Washburn’s home, Krenek asked about restrictions. In response, R.A. Washburn said that he would restrict the lot as he had the three lots which he had given his sons. R.A. Wash-burn then gave Krenek a set of restrictions which were the same as the set he had received from James Washburn. Krenek was told by R.A. Washburn that the restrictions applied to all of the land.

Krenek, on July 18, 1979, bought a lot from R.A. Washburn and the same set of restrictions were attached to his deed. The Kreneks then built a home on their lot.

In the fall of 1981, Krenek learned that the Appellants were attempting to sell and/or lease some of the property along Kimberlee Lane for commercial purposes. Krenek believed that the proposed commercial use of the property was in violation of the restrictions he had received. Krenek and his wife filed suit seeking that the proposed sale and/or lease of the property by Appellants be enjoined. Appellees’ Original Petition alleged that the Appellants had violated the DTPA in several respects. Trial was to a jury which found that the Appellants’ proposed sale and/or lease of the property was in violation of the DTPA. The trial judge entered judgment enjoining the sale or lease of the property for commercial purposes and awarded attorney’s fees to the Appellees. Appellants have properly and timely filed their appeal from that judgment.

In points of error one through eight, Appellants voice several objections over the special issues submitted to the jury. For example, point of error one is that the trial court erred in submitting the first special issue because “James M. Washburn did not own or have an interest in the property designated Acreage Tract and Washburn Estate on PX-1 and there is no evidence that he made such a representation to Mr. Krenek.” Regardless of the merits, each of Appellants’ first eight points of error must be overruled due to Appellants’ failure to preserve error in the court below.

In points of error five and six, Appellants complain that the trial court erred in submitting Special Issues Nos. six and seven. However, in the record, counsel for Appellants stated that he had no objections to those two issues. Any complaint as to a special issue is deemed waived unless specifically included in the objections. TEX.R. CIY.P. 274. By failing to object to Special Issues Nos. six and seven Appellants have waived their right to complain of defects concerning those issues. Points of error five and six are overruled.

Point of error one attacks the submission of Special Issue No. one. Point of error three is that the trial court erroneously submitted Special Issue No. three. The fourth point is that the trial court erred in submitting Special Issue No. four. At the trial level, Appellants did object to the submission of these issues. However, the objections at trial did not include the reasons listed in support of the points of error. When an Appellant does not object at trial to the submission of a special issue on the ground asserted on appeal, the objection is waived. Frost v. Sun Oil Co. (Delaware), 560 S.W.2d 467 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); TEX. R.CIV.P. 274. Because the grounds listed in support of these points of error on appeal were not given as objections at the trial level, Appellants have waived their right to complain. Points of error one, three and four are overruled.

Point of error two complains that the second special issue was improperly submitted. In the record, Appellants’ counsel did not specifically list his objections to Special Issue No. two but rather adopted “the objection to Special Issue No. One and appl[ied] those to Special Issue No. Two for the same reasons that I have given for my objections to Special Issue No. One.” TEX.R.CIY.P. 274 provides that: “No objection to one part of the charge may be adopted by reference only.” Appellants, by merely adopting by reference the objections to one part of the charge, have waived the right to complain that Special Issue No. two was improperly submitted. Point of error two is overruled.

The seventh point of error is that: The lower court erred in submitting Special Issue No. 9 in that, again, the term “defendant” is employed, which would include the Washburn Brothers, and there is no evidence that the Washburn Brothers made any representation to Mr. Krenek that the restrictions on his lot conferred or involved certain rights. There was no basis in fact for the submission of this issue or the answer thereto by the jury.

Appellants’ counsel objected to that issue on the basis that:

said issue is not based upon any evidence adduced during this trial that indicated that there was anything wrong with the restrictions or that the plaintiffs made any representation that the defendants made any representations to the plaintiff regarding the restrictions, and therefore, this special issue should not be submitted due to lack of evidence regarding same as stated.

We do not believe that the objections specifically and distinctly include the argument raised by Appellants in point of error seven. As we understand point of error seven, Appellants argue that the special issue is defective because it includes the term “defendants,” that term includes the Washburn brothers, and there is no evidence of representations by the Washburn brothers of restrictions on the lot actually purchased by Krenek. This argument was not raised by Appellants’ objections to Special Issue No. nine. By failing to include the argument in the objections, Appellants have waived their complaint. Point of error seven is overruled.

Point of error eight is that the trial court erred in submitting Special Issue No. 11 because the issue refers to all the defendants and there is no evidence that Larry and Charles Washburn made any representations. The objection to the issue was that “[tjhere is no evidence anywhere in the record that defendants made any representation to the plaintiff about the restric-tions_” This objection makes no mention of the argument that the term “defendants” includes Larry and Charles Washburn and there is no evidence that those two defendants made any representations. By failing to include this argument in the objections to the charge, Appellants have waived the right to raise this argument on appeal. TEX.R.CIV.P. 274. Point of error eight is overruled.

Appellants’ ninth point of error is that the trial court erred in entering the injunction against Larry and Charles Wash-burn because there is no basis for saying that James was acting on behalf of his two brothers. Both Appellees’ Original Petition and First Amended Original Petition listed “the Washburn Partnership, a partnership of Larry C. Washburn, James M. Washburn and Charles E. Washburn” as one of the defendants in this ease. Defendants’ Original Answer did not contain a sworn denial of the alleged partnership status. A failure to deny partnership status by a verified denial results in an admission of the existence of a partnership which cannot be controverted at trial. TEX.R. CIV.P. 93(5); Sims v. Hill, 567 S.W.2d 912 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ). When a partnership exists, the presumption is that each individual partner is an authorized agent for the remaining partners. Brewer v. Big Lake State Bank, 378 S.W.2d 948 (Tex.Civ.App.—El Paso 1964, no writ). We are unable to agree with Appellants that there is no basis for saying James Washburn was acting on behalf of his two brothers. Point of error nine is overruled.

Point of error ten is that the trial court erred in ordering the injunction against the three Washburn brothers because there was no basis under the DTPA or other law upon which liability could be based. Under this point of error, Appellants argue that Krenek was not a consumer and that no violation of the DTPA has been shown.

Clearly, a party must qualify as a consumer in order to maintain a private cause of action under the DTPA. Riverside National Bank v. Lewis, 603 S.W.2d 169 (Tex.1980). The Supreme Court has recognized that two requirements must be met for a party to qualify as a consumer: 1) the party must have sought or acquired goods or services by purchase or lease; and 2) those goods and services must form the basis of the party’s complaint. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981). We cannot agree with Appellants that neither requirement has been met in this case.

Krenek sought and acquired by purchase a parcel of land encumbered by deed restrictions. It is this land and the deed restrictions which form the basis of Appellees’ complaint. We cannot accept Appellants’ interpretation of the DTPA which would find that a claimant is not a “consumer” unless he purchased goods or services from all the defendants. The DTPA does not require that a party seek or acquire goods or services furnished by each defendant to be a consumer. Cameron, 618 S.W.2d at 541. Appellees purchased goods from R.A. Washburn and were consumers in this transaction.

Appellants also argue that under Parks v. U.S. Home Corp., 652 S.W.2d 479 (Tex.App.—Houston [1st Dist.] 1983, writ dism’d), there has been no showing that the DTPA was violated. In that case, it was held that sections 17.46(b)(5 & 23) of the DTPA were not violated. In our case, the Appellees alleged and the jury found that other subsections of the DTPA had been violated. Because these other grounds for liability have not been challenged, Appellants have failed to show that there is no basis for liability under the DTPA. Point of error ten is overruled.

The judgment is affirmed.


author: JUNELL, Justice. SEARS, Justice,

text:
    Kenneth W. THELANDER, Relator, v. The Honorable Louis MOORE, Respondent.
    No. C14-84-506-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.

      Paul S. Francis, Schleider & Francis, Houston, for relator.
    Grant Cook, Reynolds, Allen, Cook, Pan-nill & Hopper, Houston, for respondent.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, Retired Justice.
   OPINION

JUNELL, Justice.

Kenneth W. Thelander, relator, seeks a writ of mandamus ordering the Honorable Louis Moore, respondent, to hold a jury trial on the validity of a promissory note and relator’s liability on the note. The note arose out of real estate business dealings relator had with William N. Carl, Jr. The business relationship turned sour. A law suit arose and it is our job now to decide if the judge left undecided an issue properly raised. We decline to issue a mandamus.

Carl initiated a suit against Thelander to recover monies allegedly due Carl and his closely held corporation, Lucar, Inc. The-lander filed a counterclaim against Lucar and Carl alleging a partnership between Carl and Thelander and praying for dissolution of the partnership and an accounting. After an October 1983 trial a jury found that a partnership did exist and that certain properties and accounts were partnership assets, including a project known as Court-land Homes townhomes. In an interlocutory judgment dated December 9, 1983, the court identified the assets of the partnership, pronounced the partnership dissolved and ordered both Thelander and Carl to prepare an accounting.

Proposed accountings were presented to the court in January 1984. Carl’s proposed accounting included as a liability of the partnership a note made by Courtland Homes, Inc., payable to Carl, individually. The principal amount of the note is $486,-000. Courtland Homes, Inc., was the corporate entity used by the partnership in the development of Courtland Homes town-homes. Carl was president of the corporation and signed the note on its behalf. Relator disputes the validity of the note.

In a supplemental order dated February 3, 1984, the court identified the “Courtyard Homes townhomes project” found by the jury to be partnership asset, as certain real property and the liabilities, if any, of Court-land Homes, Inc., attendant thereto. In June 1984 the court conducted a trial on matters left unresolved in negotiations between the parties concerning the accounting. This trial was apparently by agreement of the parties but no agreement is in the record before us. In connection with the trial, Thelander filed a Second Trial Amendment and Third Supplemental Petition to Second Amended Original Counterclaim. The amended counterclaim pleads several alternative theories as to why the note is not a partnership obligation and makes demand for a jury trial on the validity of the note. The judge denied Thelan-der’s motion for a jury trial and eventually signed the “Final Judgment” before us now.

Thelander argues that the court’s judgment is not final because the court did not hold a jury trial on the validity of the note and because the judgment contains the following language:

That the rendition and entry of this Final Judgment and decree of accounting, settlement, termination of the partnership’s affairs, distribution of its assets, and payment of its liabilities is made without prejudice to the rights of either partner to hereafter assert in another proceeding any claims between them arising out of the business of their partnership.

Respondent replies that the judgment is final, disposed of all issues and should be challenged through appeal, not mandamus. We agree with respondent.

To be final, a judgment must determine the rights of the parties and dispose of all issues involved so that no future action by the court will be required to settle and determine the entire controversy. Perkins v. Springstun, 557 S.W.2d 343 (Tex.Civ.App.—Austin 1977, writ ref’d n.r.e.).

From the record before us it appears that the court has disposed of all issues before it. It has declared that a partnership did exist, dissolved the partnership and issued a decree of accounting, settlement, termination of the partnership’s affairs, and distribution of its assets and payment of its liabilities. The language in the judgment stating that it is without prejudice does not prevent the judgment from being a final judgment.

Relator contends that the court never decided the validity of the note as raised by his trial amendment counterclaim, nor heard evidence on the matter. We find that when the court included the note as a liability of the partnership in the accounting, it decided the issues raised by relator. Whether the evidence at the June 1984 trial supported the finding that the note was a partnership liability cannot be determined without consulting a complete record on appeal. The judgment states that the court heard evidence on some, but not all matters on which the parties disagreed. Again, an appellate record will reveal which matters were heard by the court and whether those matters were decided correctly.

Relator’s contention that he was entitled to a jury trial on the validity of the note and his alleged liability on the note may have merit. There are several Texas cases in which actions for an accounting were decided by jury even when the services of an auditor are used to present a proposed accounting to the court. See Russell v. Nall, 79 Tex. 664, 15 S.W. 635 (1891); Hengy v. Hengy, 151 S.W. 1127 (Tex.Civ.App.—San Antonio 1912, no writ); Herring v. Herring, 51 S.W. 865 (Tex.Civ.App.1899, writ ref’d). In another case a trial court committed reversible error when it submitted to the jury only the issue of whether the partnership existed but not the issue of what amount was due the parties on final settlement of the partnership. Clark v. Gallaher, 3 Tex.Civ.App. 541, 22 S.W. 1047 (1893, no writ).

Again, relator should present this argument at appeal, not in a mandamus action. An appeal is also the proper forum for deciding whether relator timely requested trial by jury on the issues concerning the note.

We hold the judgment complained of is a final, appealable judgment and deny the application for writ of mandamus.

SEARS, Justice,

concurring.

I agree that the Petition for Writ of Mandamus must be denied. However, I do not agree that the remedy is by appellate review.

The majority opinion concludes that the court entered a final judgment and found the promissory note was a liability of the partnership. Further, they found that the record on appeal could be reviewed to determine if the evidence supported the finding of partnership liability. However, the issue Relator wants determined by a jury is his liability on the partnership note based on his allegations of fraud and self-dealing. There is no evidence that the court made any findings as to Relator’s liability on the note or Carl’s fraud and/or self-dealing. The court specifically carved this cause of action out of final judgment and reserved Relator’s right to pursue this cause of action on a separate trial, i.e. “... payment of its [partnership] liabilities is made without prejudice to the rights of either party to hereafter assert, in another proceeding, any claims between them arising out of the business of their partnership.”

The theory that Relator can bring a separate suit for his liability on partnership debts is based on the reasoning that this type of a cause of action does not arise until after the accounting is completed. Mitchell Resort Enterprises v. C & S Builders, Inc., 570 S.W.2d 463 (Tex.Civ.App.—Eastland 1978, writ ref'd n.r.e.).

The judgment of the trial court was not final as to Relator’s liability on the note because the court specifically carved that cause of action out of its final judgment. The remedy, therefore, is a separate lawsuit, not appeal of an issue that remained undecided by the court.


text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Strather S. SHAW, Appellee.
    No. B14-84-547CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1984.
    Thomas C. Fitzhugh, III, Houston, for appellant.
    Thomas R. Markey, Peter Steiner, Corpus Christi, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is an appeal from an order granting a plea in abatement. Appellant, Lumber-mens Mutual Casualty Co., filed an original petition in a worker’s compensation case in Harris County. Appellee and claimant, Strather S. Shaw, answered appellant’s suit with a general denial and a plea in abatement. The plea in abatement was granted and appellant’s case was dismissed with prejudice. We affirm.

Appellant brings one ground of error on appeal. It alleges that the trial court erred in granting appellee’s plea in abatement because appellant had the right, under Tex. Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon Supp.1984), to institute a suit against appel-lee.

Appellee sought worker’s compensation benefits from appellant for injuries allegedly received while driving a truck. The injury was sustained in Harris County. The matter was heard before the Industrial Accident Board. On February 17, 1984, the board awarded no damages to appellee. On February 21, 1984, appellant filed suit in Harris County to request a trial de novo. It stated that “it was not willing and did not consent to abide by the final ruling and award” of the board. Appellee’s answer was a general denial and a plea in abatement which alleged that appellant had no basis for appealing the board’s decision. The trial court granted appellee’s plea.

The sole issue in this case is whether appellant, the insurance carrier, had a right to sue although it had prevailed before the Industrial Accident Board. This case is controlled by Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (Vernon Supp.1984) which provides in part:

Sec. 5. All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the Board. Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred, or in the county where the employee resided at the time the injury occurred (or, if such employee is deceased, then in the county where the employee resided at the time of his death), to set aside said final ruling and decision, and said Board shall proceed no further toward the adjustment of such claim, other than hereinafter provided....

Appellee argues that the statute does not mandate that the interested party be dissatisfied with the Board award. We do not agree. A legal injury must be sustained before any cause of action in any case arises. Texas Employers Insurance Association v. Spann, 632 S.W.2d 906, 908 (Tex.App.—Fort Worth 1982, writ dism’d w.o.j.). In Spann, the court was faced with the same problem as in the instant case. The insurance company in Spann prevailed at the board level and still filed an appeal. Up to the point of the appeal, the insurance company had prevailed in all respects. The Spann court held that: “There can be no appeal from a ruling which gives one party everything it seeks. An appeal of necessity must be based on a clearly legal wrong.” The court found that the only loss suffered was to the claimant who had been denied any recovery and upheld the overruling of the appellant-insurance carrier’s plea in abatement, as'well as a plea of privilege. The court lastly found the filing by the appellant-insurance carrier was an attempt to prevent the filing by the appellee-claimant in the county of his residence.

In the instant case the only damage done was to appellee Shaw who was denied any recovery, as in Spann. Appellant had no appeal from the Board’s award because it prevailed before the Board. The appeal to the district court was from one who received everything it sought before the Industrial Accident Board. Appellant approached the District Court in Harris County with no clear legal wrong. Therefore, we find the trial court acted properly in granting appellee’s plea in abatement.

Accordingly, the order of the trial court is affirmed.

PAUL PRESSLER, J., concurs in the result.

      . Though it is not in the record, in both appellant’s and appellee's briefs and oral arguments, they stated that appellee filed suit a few days later in Nueces County, the county where appel-lee resided at the time of the injury and at the time when the suit was filed.

      . In oral argument appellant stated that no damages were awarded because the Board found the injury not compensable.


author: RALEIGH BROWN, Justice.

text:
    TELEVISION CABLE SERVICE, INC. d/b/a United Cable Television of Abilene, Appellants, v. Jack BRYANT, Appellee.
    No. 11-84-035-CV.
    Court of Appeals of Texas, Eastland.
    Dec. 20, 1984.

      Glenn E. Heatherly, Rhodes, Doscher & Heatherly, Jonathan K. Graham, Abilene, for appellants.
    Jack Bryant, Abilene, for appellee.
   RALEIGH BROWN, Justice.

This is an appeal from the granting of a mandatory injunction. Jack Bryant brought suit against Television Cable Service, Inc. d/b/a United Cable Television of Abilene, asking that Television Cable be required to extend cable television service to Bryant’s home.

Texas law expressly gives home-rule cities the authority not only to grant franchises, TEX.REV.CIV.STAT.ANN. art. 1181 (Vernon 1963), but also TEX.REV. CIV.STAT.ANN. art. 1175, sec. 12 (Vernon 1963), authorizes cities:

To determine, fix and regulate the charges, fares or rates of any person, firm or corporation enjoying or that may enjoy the franchise or exercising any other public privilege in said city and to prescribe the kind of service to be furnished by such person, firm or corporation, and the manner in which it shall be rendered, and from time to time alter or change such rules, regulations and compensation. ...

The Abilene City Council adopted an ordinance in 1964 granting a nonexclusive television cable franchise to Television Cable. The caption of such ordinance states:

An ordinance of the City of Abilene, Texas, granting a right, privilege and fran-. chise to the TV Cable Service of Abilene, Inc. for the purpose of distributing audio and video signals to its subscribers in the City of Abilene, Texas, in, over, under and across the present and future streets, highways, alleys, bridges, public ways and other public places in the City of Abilene; establishing a term of twenty-five (25) years and providing said franchise shall not be exclusive; providing for supervision under the director of public works; providing for protection of surfaces of streets, highways, alleys, bridges, public ways and other public places, and protection of persons and property from danger during construction and operation; providing for relocation of equipment and removal of obstructing trees; providing for furnishing or reasonable service except in cases of emergency; providing for furnishing the City Manager certain written instruments; reserving the right of the City Council to fix and regulate charges, kind of service and manner in which it shall be rendered; providing limitations upon services furnished by cable company which conflict with local television stations and theaters; providing for compensation to the City of Abilene from annual gross receipts and method of payment of same; providing for a bond; providing for an indemnity agreement and liability insurance; providing for forfeiture in case of default, and removal of equipment; providing for assignment of interest; providing for commencement of service and forfeiture for failure to provide service; providing for compliance with Federal, State, County and City laws; providing for form of acceptance of franchise; and calling a public hearing.

Section 7 of the franchise provides in pertinent part:

TYPE OF SERVICE. That the Cable Company agrees to furnish prompt and reasonable service to any person, firm or corporation within the City, upon request. ...

Section 9, as subsequently amended, states in pertinent part:

RESERVATION OF CONTROL. That Cable Company agrees to furnish any information the City may request to aid it in making its determination regarding fair and just rates and/or charges to be charged subscribers_ The City reserves the right to determine and fix charges and fares and to regulate the kind of service to be rendered, provided, however, that the City shall not exercise this power in such manner as to deprive the Cable Company of a fair return on its investment or interfere with the quality of expansion of the service to be provided by Cable Company.

Section 14 provides:

FORFEITURE PROVISION. That in case the Cable Company shall default in any of the conditions or provisions of this franchise ordinance, the City Manager shall notify the local agent, as provided, of said Cable Company by certified mail, and if said default is not removed within thirty (30) days after mailing of this notice, the City may declare this franchise ordinance forfeited and null and void, and it shall thereupon be automatically terminated without further notice or action on its part....

Bryant lives approximately 4.2 miles beyond the existing cable system. His home is in the Lake Fort Phantom Hill area which is sparsely populated but which is within the corporate city limits. He resided there at the time the City Council granted the franchise in 1964. That area was a part of the city at the time the franchises were granted. Bryant and his wife requested Television Cable in 1981 to extend service to them, which the company refused to do based upon economic grounds. Bryant brought suit soon thereafter, alleging that he was entitled to the extension of service under Section 7 of the franchise ordinance. Following a nonjury trial, the court granted the requested mandatory injunction requiring Television Cable to extend service within six months from the date of judgment. Following the rendering of judgment, the City of Abilene filed a petition in intervention, claiming that it was an indispensable party to the interpretation of the franchise. The petition in intervention requested that the judgment be withdrawn and that Bryant be required to first present his request to the City Council, or that the City be allowed to participate as a party and present evidence. The court entered an order striking the City’s intervention. Television Cable appeals. The City of Abilene has filed an amicus curiae brief supporting Television Cable.

In the first point of error, appellant and the amicus assert that the court erred in granting judgment in Bryant’s favor without requiring him to exhaust his administrative remedies, thus denying the primary jurisdiction of the Abilene City Council. The doctrines of exhaustion of remedies and primary jurisdiction would require that before proceeding through the court system, Bryant should initially present his grievance to the City Council to enable the local governing body to apply its expertise to best serve the needs of the citizens at large. Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411 (1961).

The doctrine of primary jurisdiction is applicable where there arises a question jurisdiction as between a court and an agency. As described by the court in D & S Investments, Inc. v. Mouer, 521 S.W.2d 118 (Tex.Civ.App.—Austin 1975, writ ref’d n.r.e.):

Primary jurisdiction is the principle which determines whether the court or the agency should make the initial deci-sion_ The doctrine of primary jurisdiction is sometimes confused with, but is distinguishable from, the concepts of exhaustion of administrative remedies and ripeness. Exhaustion and ripeness determine at what stage a party may secure a review of administrative action. See University of Texas, Davis, “Administrative Law Doctrines,” 28 Texas L.Rev. 376, 400 (1950). The purpose of the precept of primary jurisdiction is to assure that the administrative agency will not be bypassed in a matter which has been especially committed to it by the legislature. See Foree v. Crown Central Petroleum Corporation, 431 S.W.2d 312 (Tex.1968).

The court in Foree v. Crown Central Petroleum Corporation, 431 S.W.2d 312 (Tex.1968) in its discussion of the doctrine of primary jurisdiction cited the following passage from DAVIS ADMINISTRATIVE LAW Sec. 19.07 (Hornbook Series 1950), at page 352:

The theory seems reasonably clear that the test for applying the principle of primary jurisdiction is not whether some parts of the case are within the exclusive jurisdiction of the courts but whether some parts of the case are within the exclusive jurisdiction of the agency. Because the purpose of the doctrine is to assure that the agency will not be bypassed on what is especially committed to it, and because resort to the courts is still open after the agency has acted, the doctrine applies even if the agency has no jurisdiction to grant the relief sought....

Our Supreme Court has recognized exceptions to the primary jurisdiction doctrine: (1) where the issue is one inherently judicial in nature; (2) when the administrative agency is powerless to grant the relief sought and has no authority to make incidental findings which are essential to the granting of relief. Foree v. Crown Central Petroleum Corporation, supra; and (3) intervention by the court in administrative proceedings may be permissible when an agency is exercising authority beyond its statutorily conferred powers. Westheimer Independent School District v. Brockette, 567 S.W.2d 780 (Tex.1978).

A careful analysis of Bryant’s pleading reflects that he alleges a franchise complaint. It concerns the alleged failure of performance on the part of the franchise holder. Such complaint is not inherently judicial in nature. The Abilene City Council is not powerless to act, nor would the council be exercising authority beyond its statutorially conferred powers. We hold that the city has primary jurisdiction to determine the merits of such a complaint and that the trial court’s injunction interfered with the primary jurisdiction of the Abilene City Council.

The judgment of the trial court is reversed, and the injunction is dissolved.