in Re George Green and Garlan Green

ACCEPTED

03-14-00725-CV

4956355

THIRD COURT OF APPEALS

AUSTIN, TEXAS

April 20, 2015 4/20/2015 3:17:27 PM

JEFFREY D. KYLE

CLERK

No. 03-14-00725-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

IN RE GEORGE GREEN AND GARLAND GREEN

RELATOR

PETITION FOR MANDAMUS FROM CAUSE NO. 18314

RD

33 JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS

HON. ALLAN GARRETT, PRESIDING

BRIEF

OF PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG,

PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ, RICHARD PAT MCELROY,

REAL PARTIES IN INTEREST

Brantley Ross Pringle, Jr.

State Bar No. 16330001

rpringle@2w-g.com

Heidi A. Coughlin

State Bar 24059615

hcoughlin@w-g.com

Mike Thompson, Jr.

State Bar No. 19898200

mthompson@w-g.com

Wright & Greenhill, P.C.

221 W. 6th Street, Suite 1800

Austin, Texas 78701

512/476-4600

512/476-5382 (Fax)

Attorneys for Real Parties In

Interest

IDENTITY OF PARTIES AND COUNSEL

To comply with the Texas Rules of Appellate Procedure, the following is a

complete list of all parties to the trial court’s order at issue, as well as the names

and addresses of all trial and appellate counsel.

Relator: Counsel for Relator:

George Green David Junkin

Garlan Green, deceased P.O. Box 2910

Wimberley, Texas 78676

david@junkinlawoffice.com

Real Parties In Interest: Counsel for Defendants/Real

Parties In Interest:

Port of Call Homeowners Association Brantley Ross Pringle, Jr.

Randolph Harig rpringle@w-g.com

Phillip Jacobs Heidi A. Coughlin

John Ross Buchholtz hcoughlin@w-g.com

Richard Pat McElroy Mike Thompson, Jr.

mthompson@w-g.com

Wright & Greenhill, P.C.

221 W. 6th Street, Suite 1800

Austin, Texas 78701

Respondent: Executed the orders of which

Relators complain

Honorable Allan Garrett

Judge 33rd Judicial District Court

Of Llano County, Texas

-ii-

Other Parties:

Nancy Carothers L. Hayes Fuller, III

Naman Howell Smith & Lee,

P.L.L.C.

400 Austin Avenue, Suite 800

P. O. Box 1470

Waco, TX 75703-1470

hfuller@namanhowell.com

-iii-

TABLE OF CONTENTS

Index of Authorities .......................................................................................... v - vi

Statement of the Case ....................................................................................... 2

Counter-Issues Presented .................................................................................. 3

Counter-Issue One: The Court of Appeals does not have

jurisdiction to consider the discovery matters at issue in this

case and the mandamus should be dismissed because

Relator has an adequate legal remedy.

Reply Point One: Assuming arguendo, that this court has

jurisdiction of this matter, Mandamus still fails, because

Green has the right to inspect documents provided under

the order and the trial court did not abuse its discretion in

maintaining its docket and court procedures. [Responsive

to all Relator’s issues]

Background ....................................................................................................... 4 - 5

Summary of the Argument ............................................................................... 6

Argument and Authorities ................................................................................ 7 - 18

Conclusion and Prayer ...................................................................................... 19

Certificate of Service ........................................................................................ 22

Appendix .......................................................................................................... 23-24

-iv-

INDEX OF AUTHORITIES

Case Law Page(s)

Burton v. Cravey,

759 S.W.2d 160 (Tex.App.—Houston [1st Dist] 1988, no writ) ............ 18,23

Cleveland v. Williams,

29 Tex. 204, 213 (1867) ......................................................................... 11,23

Cole v. McWillie,

S.W.3d , 2015 WL 535562 (Tex.App.—Eastland 2015, no pet ... 11,23

Crawford v. Morris,

228 S.W.2d 364, 366 (Tex.Civ.App.—Eastland 1950,

writ ref’d n.r.e.) ..................................................................................... 11,23

Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238 (Tex. 1985) cert. denied, 476 U.S. 1159 (1986) ......... 9,23

Ezeoke v. Tracy,

349 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2011, no pet.)......... 16,23

Gaughn v. National Cutting Horse Association,

351 S.W. 3d 408 (Tex.App.—Ft. Worth 2011, pet. for review denied .. 16,23

Gilmer v. Veatch,

121 S.W. 545 (1909) .............................................................................. 11,23

Huie v. DeShazo,

922 S.W.2d 920 (Tex. 1996) .................................................................. 16,23

In re Bay Area Citizens Against Lawsuit Abuse,

982 S.W. 2d 371, 381-82 (Tex. 1998) ................................................... 15,23

In re Campbell,

106 S.W.3d 788 (Tex.App.—Texarkana 2003) ..................................... 7,23

Johnson v. Fourth Court of Appeals,

700 S.W.2d 916 (Tex. 1985) .................................................................. 9,23

Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 200 (Tex. 2001) ............................................................ 8,10,23

Nehring v. McMurrain,

45 S.W. 1032 (Tex. Civ. App. 1898) ..................................................... 11,23

Scott & White Memorial Hosp. v. Schexnider,

940 S.W.2d 594 (Tex. 1996) .................................................................. 10,24

Velez v. DeLara,

905 S.W.2d 43 (Tex.App.—San Antonio 1995, no writ ........................ 8,24

Walker v. Packer,

827 S.W.2d 833 (Tex. 1992) .................................................................. 8,24

Watson v. The Homeowners Association of Heritage Ranch, Inc.,

346 S.W.3d 258 (Tex.App.—Dallas 2011, no writ)............................... 12,24

-v-

Wood v. James R. Moriarty, P.C.,

940 S.W.2d 359 (Tex.App.—Dallas, 1997, no pet) ............................... 7,24

Rules

Tex. Bus. Org Code §252.010 (Vernon 2012).................................................. 18,24

Tex. Bus. Org. Code §22.351 (Vernon 2012)................................................... 13,14,18,24

Tex. Bus. Org. Code §1396-2.23A(Vernon 2009) ........................................... 15,24

Tex. Prop. Code §82.114 (Vernon 2014) ......................................................... 13,14,17,24

Tex. R. App. Pro. 42.3 (Vernon 2003) ............................................................. 7,24

Tex. R. Civ. Pro. 190.5 (Vernon Supp. 2014) .................................................. 15,24

Tex. R. Civ. Pro. 191.1 (Vernon 2004) ........................................................... 15,24

Tex. R. Civ. Pro. 191.3(c) (Vernon 2004) ........................................................ 16,24

Tex. R. Civ. Pro. 191.3(e) (Vernon 2004) ........................................................ 16,24

Tex. R. Civ. Pro. 192.4 (Vernon 2004) ............................................................ 15,24

Tex. R. Civ. Pro. 192.6 (Vernon 2004) ............................................................ 15,24

Tex. R. Civ. Pro. 192.6(a) (Vernon 2004) ...................................................... 16,24

Tex. R. Civ. Pro. 192.6(b)(4) (Vernon 2004) ................................................... 16,24

Tex. R. Civ. Pro. 215.3 (Vernon 2004) ............................................................ 15,24

Tex. R. Civ. Pro. 301 (Vernon 2008) ............................................................... 10,24

Tex. R. Civ. Pro. 329b (Vernon 2008) ............................................................. 10,24

Other

www.Washingtonpost.com “John Roberts, Umpire”

6/28/2012, Chris Cillizza (visited 2/27) ....................................... 10,24

-vi-

No. 03-14-00725-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

IN RE GEORGE GREEN AND GARLAND GREEN

RELATOR

PETITION FOR MANDAMUS FROM CAUSE NO. 18314

RD

33 JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS

HON. ALLAN GARRETT, PRESIDING

BRIEF

OF PORT OF CALL HOMEOWNERS ASSOCIATION, RANDOLPH HARIG,

PHILLIP JACOBS, JOHN ROSS BUCHHOLTZ, RICHARD PAT MCELROY,

REAL PARTIES IN INTEREST

TO THE HONORABLE THIRD COURT OF APPEALS:

COME NOW Real Parties In Interest Port of Call Homeowners Association,

Randolph Harig, Phillip Jacobs, John Ross Buchholtz, and Richard Pat McElroy

(hereinafter “POC”) and file this their Brief and would show the following:

-1-

STATEMENT OF THE CASE

POC generally agrees with George Green and Garlan Green’s (hereinafter

“Green”) statements of the case as reported in the original brief and subsequent

Court of Appeals pleadings in general. The primary disagreement between the

parties now centers on whether or not the Court of Appeals has jurisdiction to

consider the discovery order at issue and whether or not the trial court abused its

discretion with its discovery rulings.

-2-

COUNTER-ISSUES PRESENTED

Counter-Issue One: The Court of Appeals does not have jurisdiction to

consider the discovery matters at issue in this case and the mandamus should

be dismissed because Relator has an adequate legal remedy.

Reply Point One: Assuming arguendo, that this court has jurisdiction of this

matter, Mandamus still fails, because Green has the right to inspect

documents provided under the order and the trial court did not abuse its

discretion in maintaining its docket and court procedures. [Responsive to all

Relator’s issues]

-3-

BACKGROUND

In his Original Petition, Green complains that POC breached fiduciary duties

and breached contracts. (CR p. 8-14)1 During the pendency of the litigation, POC

filed a motion seeking protection from Green’s discovery actions on August 8,

2014. (CR p. 114-130) One basis of the Motion was that Green was making

duplicative requests for information to harass POC. (RR Vol. II, p. 5-15) A

hearing was held on August 14, 2014, and after that, an order for protection was

granted. (CR p. 131-132) George Green was at that hearing and discussed

discovery issues with Respondent. (RR Vol. II, p. 28)

Subsequently, Green continued conduct POC believed violated the order of

protection. (CR p. 153-156) In response, POC filed a Motion to Enforce the Order

of August 14, 2014. (CR p. 153-156) A hearing was held on that motion on

October 14, 2014. (CR p. 175; RR Vol. III, p. 3) The Judge granted the Motion to

Enforce the Protective Order and entered an order on October 21, 2014. (CR p. 175)

The record of the hearing on that Motion again details what Respondent expected

of the parties. (RR Vol. II, p. 12-19) That is the order that was the subject of the

original appeal. That order has been vacated. (Supp. CR p. 4)

1

For this brief, the Clerk’s Record is referenced as CR p. ___ or Supp. CR p. ___ for the

Supplemental Clerk’s Record. The Reporter’s Record is referenced as RR Vol. ___ p. ___; or

Supp. RR p. for references to the Supplemental Reporter’s Record for the hearing January 30,

2015.

-4-

On January 30, 2015, a hearing was held in the District Court and as noted,

the Respondent vacated the order of October 21, 2014. (Supp. CR p. 4; Supp. RR p.

4-30) On that date, the trial court again discussed the discovery issues at length

with the parties, working with them to try to fashion a further compromise in order

to meet the concerns of both parties. (Supp. RR Vol. I, p. 4-31) As the record

from that hearing makes clear, neither Respondent nor Real Parties In Interest were

seeking to prevent Green from attending meetings of the Homeowners Association

(“HOA”), voting in HOA elections or speaking at those meetings. (Supp. RR Vol.

I, p. 6, 11, 15, 23) Indeed, Green had attended meetings of the Homeowners

Association after the October 21, 2014 order. (Supp. RR Vol. I, p. 6) Rather,

Respondent wanted to provide Relator the information allowable under the Bylaws

and Codes, while preventing what he had found to be the harassing conduct of

constant demands for information and documents directly to POC. (Id)

-5-

SUMMARY OF THE ARGUMENT

In the present action, the Court of Appeals is without jurisdiction to grant

mandamus for two reasons. First, the trial court vacated the earlier order Green

sought to appeal. Second, the January 30, 2015 order concerns a discovery matter,

there is no final judgment and there is an adequate remedy at law.

Moreover, assuming arguendo that this Court has jurisdiction, the Trial

Court did not abuse its discretion in any action of which the Relator has

complained, or seeks to complain. Respondent has authority to manage his docket

and the discovery process for cases the parties have conferred jurisdiction upon it

by filing a lawsuit. Moreover, the codes providing for information and document

requests require such requests be pursued reasonably and for a proper purpose.

The Respondent very clearly followed those principles in fashioning these orders.

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I. ARGUMENT AND AUTHORITIES

A. The Court of Appeals does not have jurisdiction to consider the

discovery matters at issue in this case and the mandamus should be

dismissed because Relator has an adequate legal remedy.

1. The Court Should Reconsider its April 3, 2015 Order and Find

the Issue Moot Because the Order Complained of was Vacated.

Originally, Relator claimed to be seeking interlocutory review of an

injunction. However, properly understood, the order for which Green seeks relief

is a discovery sanction. Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (Tex.

App—Dallas, 1997, no pet). On January 30, 2015, a hearing was held in the

District Court and the District Court vacated the order of October 21, 2014, the

order that was the subject of the pending interlocutory appeal. (Supp. CR p. 4)

POC has argued and here re-urges its argument that this court has the

authority to dismiss this appeal because the discovery order complained of has

been vacated. In re Campbell, 106 S.W.3d 788 (Tex. App.—Texarkana 2003)(trial

court order vacating earlier contempt order moots appeal because order no longer

exists). For this reason, POC re-urges its argument that the Court of Appeals is

without jurisdiction and the case should be dismissed. Tex. R. App. Pro. 42.3

(Vernon 2003).

2. The mandamus should be denied because this is a discovery

matter, there is no final appealable judgment and Relators have

an adequate remedy at law for the review of the Order.

-7-

This case involves questions about the discovery process undertaken by the

parties and the court umpiring those actions in this civil case. There is no final

judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). Rather,

Green sought to proceed under the extraordinary remedy that is an interlocutory

appeal. (CR p. 182-183) Subsequently, this Court allowed Green’s appeal to

proceed as a mandamus action.

Consistent with the idea of judicial economy allowing review of trial court

rulings under the discretionary standard of review, Green has a remedy at law for

the review of these discovery orders and that is available after judgment. Walker v.

Packer, 827 S.W2d 833, 842 (Tex. 1992). The discussion between the parties and

Respondent, about the Respondent’s interest for discovery in this case, weighing

costs to the court and parties clearly illustrates why discovery matters are not

ordinarily appealable during the pendency of the case. (Supp. RR Vol. I, p. 10-24)

Discovery sanctions are rarely the proper subject for mandamus review. Velez v.

Delara, 905 S.W.2d 43 (Tex.App.—San Antonio 1995, no writ). Even if the Court

of Appeals had jurisdiction, the Respondent did not abuse his discretion with his

ruling in this case. And, if he did, the ruling is subject to review after judgment.

-8-

B. Reply Point One: Assuming arguendo, that this court has

jurisdiction of this matter, Mandamus still fails, because Green

has the right to inspect documents provided under the order and

the trial court did not abuse its discretion in maintaining its

docket and court procedures. [Responsive to all Relator’s issues]

1. Standard of Review

As Relator rightly concedes, a trial court has a broad range of discretion in

maintaining its docket and controlling discovery procedures with parties before the

court. The proper standard of review for this matter is whether or not the trial

judge abused his discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916,

917 (Tex. 1985). In order to establish that the trial judge abused his discretion, the

reviewing court must consider he acted without reference to any guiding rules and

principles, such that the act was arbitrary and unreasonable. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) cert. denied, 476 U.S.

1159 (1986).

-9-

2. The court did not violate its discretionary authority to umpire

discovery matters before the court.

When standing for confirmation to the Supreme Court, Justice John Roberts

aptly described the proper role of the judge as the umpire of the judicial system,

not playing the game, but seeking to insure the parties operate fairly and in bounds.

www.Washingtonpost.com 6/28/2012, Chris Cillizza (visited 2/27). As the parties

here agree, that understanding is at the heart of the standard of review in this case.

The standard guides the Court of Appeals’ review. Applying that standard, it is

clear the district judge did not abuse his discretion here.

Regardless of how the order at issue may be styled, it is not a final order as it

did not dispose of all parties and/or claims. Lehmann v. Har-Con, 39 S.W.3d 191,

200 (Tex. 2001). Therefore, it is not a final judgment. Tex. R. Civ. Pro. 301. A

trial court retains jurisdiction over its docket, including the power to modify,

amend, or change interlocutory rulings and orders until it loses its plenary power.

Tex. R. Civ. Pro. 329b, Scott & White Memorial Hosp., v. Schexnider, 940 S.W.2d

594, 596 (Tex. 1996). Accordingly, the trial court had authority to change this

interlocutory order in the way it did regardless of what it is called.

-10-

3. Green is not entitled to mandamus relief from Judge Garrett’s

January 30, 2015 discovery order because the Judge’s decision

was not arbitrary, it was reasonable, and does not violate Green’s

rights as a property owner derived from statute, bylaws or other

legal authority.

a. George Green is not a property owner and therefore has no

rights to inspect records under the statute, bylaws or other

legal authority.

George Green brought this lawsuit by and through a Power of Attorney he

had from his father, Garlan Green, a property owner at Port of Call. (CR p. 8)

Relator argued earlier that outside of the discovery context of the Texas Rules of

Civil Procedure, he is entitled to information under the Property Code, the Texas

Business Organizations Code and the Bylaws of the Association as a property

owner. (RR Vol. II, p 51 - 53) On or about January 17, 2015, Garlan Green

passed away. Green’s counsel has since filed a Suggestion of Death notifying the

Court of this development. The powers of the agent cease on the death of his

principal. Cole v. McWillie, S.W.3d , 2015 WL 535562 (Tex.App.—

Eastland 2015, no pet.) (“…the law is clear, that an agent’s authority to bind his

principal terminates upon the principal’s death.” citing Cleveland v. Williams, 29

Tex. 204, 213 (1867), Crawford v. Morris, 228 S.W.2d 364, 366 (Tex.Civ.App.—

Eastland 1950, writ ref’d n.r.e.)). Upon his passing, the Power of Attorney from

Garlan Green to his son George Green was revoked. Gilmer v. Veatch, 121 S.W.

545 Tex. Civ. App. 1909, no writ), Nehring v. McMurrain, 45 S.W. 1032 (Tex. Civ.

-11-

App. 1898, no writ). Green’s counsel has acknowledged that Garland Green’s

death complicates standing. (Supp. RR p. 12-13)

George Green is not a property owner. (Supp. RR p. 12-13) Nor is there any

evidence that he is acting as a proper agent for a property owner because the

property owner Garlan Green has passed away. Therefore, George Green has no

rights to review or inspect documents under the Homeowner Association Bylaws,

the Texas Property Code or the Texas Business Organizations Code. Absent such

standing, he has no right to request or inspect documents in any event.

b. Respondent balanced Green’s right to inspect documents,

as a property owner, with Green’s previous unreasonable,

harassing document requests. The January 30, 2015 Order

provides Green with all the documents he is entitled to

inspect under statutes and bylaws and protects the POC

from constant harassing requests.

In the filings they have made with the court, the Relator has also

mischaracterized the court’s order of January 30, 2015. The fact is, the order

entered by the court on January 30, 2015 expressly allows for the production of

records from POC to Green through counsel.2 (Supp. CR p. 5) This is a proper

ruling. See Watson v The Homeowners Association of Heritage Ranch, Inc., 346

S.W.3d 258 (Tex.App.—Dallas 2011, no petition) (protective order regarding

information request under statute not abuse of discretion). Indeed, POC is

obligated to provide documents every 60 days without any further request. (Supp.

2

So did the earlier orders of August 14, 2014 and October 21, 2014.

-12-

CR p. 5) This is a procedure that is more liberal than the provisions of the

Property Code, or the Business Organization Code themselves. See: Tex. Prop.

Code §82.114 and Tex. Bus. Org. Code §22.351. (and/or their predecessors)

Further, no one has argued that POC has not followed and met its obligations under

these orders made by Respondent. The January 30, 2015 order provides a

reasonable procedure for POC to provide all statutorily required documents and

other discovery.

The apparent question before the court in this Mandamus proceeding is

whether the Relator abused his discretion to control extra-judicial discovery

requests incident to a lawsuit. See Court of Appeals Order of April 3, 2015 p. 2.

The Court has asked POC to address the power of the court to control document

and information requests existing beyond the ordinary discovery vehicles described

in the Texas Rules of Civil Procedure. Initially, the Court of Appeals should

recognize that the Respondent did not abuse his discretion in finding Green had not

exercised his rights for a proper purpose, but rather had been using them to harass

the Association.

At the commencement of this lawsuit, Green sent POC significant discovery,

including extensive requests for production of documents. (RR Vol. II, p. 51)

These requests included information a property owner is entitled to inspect by

statute, as well as additional information. (Id.) The Texas Property Code, Texas

-13-

Business Organization Code, and the Port of Call Homeowners Association

Bylaws themselves only require that documents requested be produced for

inspection, and possibly copying. Tex. Prop. Code §82.114; Tex. Bus. Org. Code

§22.351. However, Relator also requested the documents in his Requests for

Production and his attorney has taken the position that inspection is not sufficient

but rather the documents needed to be “produced.” (RR Vol. II, p. 51) POC

counsel has produced to Green all non-privileged documents in their actual and

constructive possession relating to the Home Owners Association, these documents

dated back to 1998 and totaled over 16,000 pages. (RR Vol. II, p. 19)

Ultimately POC sought relief from Green’s constant demands in the form of

a protective order. (CR p. 114) The Respondent determined that the constant

demand to the POC for more documents, additional documents and to re-review

documents previously produced, was harassing. (RR Vol. II, p. 29, 53; RR Vol. II,

p. 13-19; Supp. RR p. 8-30) Subsequently, POC filed a Motion to Enforce the

order believing Green had violated the earlier ruling. (CR p. 153) After a series of

hearings, the Order of January 30, 2015 was entered. (Supp. CR Vol. I, p. 5) It

requires “Defendants [POC] supplement document responsive to Plaintiff’s [Green]

previous discovery requests made by Plaintiff every sixty (60) days ... Such

supplementation shall occur without prompting or request by Plaintiff, and shall

include any Port of Call Homeowners Association-related documents that

-14-

members may lawfully request due to their status as HOA members.” (Supp. CR

Vol. I, p. 5) (Emphasis added)

Clearly, the court can sanction parties under the discovery rules of the Texas

Rules of Civil Procedure, when parties are abusing discovery. See generally: Tex.

R. Civ. Pro. 190.5 (Vernon Supp. 2014), Tex. R. Civ. Pro. 191.1 (Vernon 2004),

Tex. R. Civ. Pro. 192.4 (Vernon 2004), Tex. R. Civ. Pro. 192.6 (Vernon 2004), and

Tex. R. Civ. Pro. 215.3 (Vernon 2004). Indeed, the court can undertake such action

sua sponte. See Tex. R. Civ. Pro. 191.3(e) (Vernon 2004). Further, the court can

modify a discovery period developed under the Texas Rules of Civil Procedure at

anytime, and it must do so when justice requires it. Tex. R. Civ. Pro. 190.5.

(Emphasis added) Those rules further describe that discovery may be limited by

the court, and should be limited by the court if it determines, on motion or its own

initiative, that discovery requests are duplicative or otherwise harmful. Tex. R. Civ.

Pro. 192.4.

Properly understood, this power of the court to umpire the parties’ discovery

efforts must extend to extra judicial discovery processes in other statutory

frameworks, like the Texas Property Code and the Texas Business Organizations

Code. Courts have recognized this. See e.g., In re Bay Area Citizens Against

Lawsuit Abuse, 982 S.W.2d 371, 381-82 (Tex. 1998) (names of financial

contributors not subject to blanket disclosures under Tex. Bus. Org. Code §1396-

-15-

2.23A), Huie v. DeShazo, 922 S.W.2d 920, 923-23 (Tex. 1996) (information

requests under statute do not override attorney-client privilege). Indeed, even the

structure of the Texas Rules of Civil Procedure themselves support this

understanding, because the power of the court to sanction, limit or otherwise

modify discovery requests found in Tex. R. Civ. Pro. 192.6(a) and 192.6(b)(4) is

not limited to “these rules” (i.e., the discovery processes of the Rules of Civil

Procedure). The drafters of those rules could have limited that provision to the

discovery in the Rules of Civil Procedure had they wanted to. They did not. Thus,

that power is not circumscribed. See: Gaughn v. National Cutting Horse

Association, 351 S.W. 3d 408 (Tex.App.—Ft. Worth 2011, pet. for review denied).

In addition, Tex. R. Civ. Pro. 191.3(c) provides that the signature of a party

to a “discovery request” implies that the request, among other things, is not

harassing. If a court determines otherwise it may impose a sanction on the person

who made the certification by signature. Tex. R. Civ. Pro. 191.3(e). Again, that

judicial power is not limited to “these rules” and the discovery vehicles described

in the Rules of Civil Procedure. Therefore, the judicial discretion built into the

system via the Texas Rules of Civil Procedure can be applied to discovery matters

beyond those rules. See: Gaughn v. National Cutting Horse Association, 351

S.W.3d 408 (Tex.App.—Ft. Worth 2011, pet. for review denied). In addition, a

court has inherent authority in some situations to impose sanctions. See: Ezeoke v.

-16-

Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.] 2011, no pet.). That

power extends to sanctions if a party violates a court order, like here. Respondent

earlier determined that Green had violated his discovery order of August 14, 2014

and continued harassing POC. (CR p. 175; Supp. RR Vol. I, p. 8; RR Vol. II,

p. 12-19)

It is not crystal clear all of the statutory schemes the Relator believes provide

him the right of immediate inspection of records from his father’s Homeowners

Association. In the hearing of August 14, 2014, Relator’s counsel urged Texas

Business and Organizations Code §252.010 and §22.351. (RR Vol. II, p. 40 - 45)

Furthermore, the Texas Property Code §82.114 is referenced in the Bylaws and

thus also of likely application. (RR Vol. II, p. 40) Moreover, §81.209 of the Texas

Property Code may too apply. Each of these is discussed below.

The Texas Property Code §82.114(b) requires an association keep “all

financial and other records of the association…reasonably available…for

examination by a unit owner and the owner’s agents.” Tex. Prop. Code §82.114

(Vernon’s 2014). (Emphasis added) The same reasonableness provision is

incorporated into the Port of Call Homeowner’s Association Bylaws by reference.

(RR Vol. II, p. 40) Section 81.2093 of the Property Code has been interpreted to

mean a homeowner may inspect records unless the request is for an improper

3

§81.209 applies to those regimes created before January 1, 1994. POC was created in 1980, it

is possible it has application to this case.

-17-

purpose. Burton v. Cravey, 759 S.W.2d 160 (Tex.App.—Houston [1st Dist] 1988,

no writ).

The Texas Business Organizations Code states that a member of a

corporation is entitled to review specific documents at any “reasonable time and

for a proper purpose.” Tex. Bus. Org. Code §22.351 (Vernon’s 2012) (Emphasis

added) Moreover, §252.010 requires that an unincorporated non-profit association

“. . . shall make the books and records available on request to members of the

association for inspection and copying.” Tex. Bus. Org. Code §252.010 (Vernon

2012).4 The statutes do not require production “on demand.” (RR Vol. II, p. 27)

Considering all of these sections together, it is certainly not an abuse of

discretion for a court to determine that the documents the statues require to be

inspected or produced shall be produced in a form that is regularly used in the

course of business every 60 days. That is what the Respondent did in this case.

That should not be taken as disregarding all standards or rules, but is rather a

prudent use of his discretionary authority.

Since the Respondent ruled that POC had to produce all documents Green

would be entitled to inspect as a homeowner, POC is actually required to exceed

their obligations to Green under the referenced statutes or bylaws. In an effort to

curb what Respondent identified as Green’s previous harassing behavior, the Court

4

While POC was created in 1980, it was not incorporated until later. (RR Vol. I, p. 41-42) Thus

both sections might apply.

-18-

also ruled that Green’s request for documents covered by the order or previously

produced will be viewed as a discovery abuse and subject to sanctions. (Supp. CR

p. 5) The Judge explicitly excluded requests for documents from Green’s attorney.

(Id)

The January 30, 2015 Order does not deprive Green of any right to access of

records, in fact, it gives him greater access to records than he is entitled to under

statutes and bylaws. Further the January 30, 2015 Order is an attempt to protect

POC from Green’s harassing and abusive requests. Accordingly, there is no abuse

of discretion in making the order Respondent made and the Petition for Mandamus

should be denied.

-19-

CONCLUSION AND PRAYER

POC prays that the Court dismiss the Petition for Mandamus because it is

without jurisdiction to consider it. In the alternative, POC prays that the Court

deny the Relator’s issues because there is no error in the rendition of the order

below. Pleading as a further alternative, POC prays that the Court sustain their

counterpoint as an alternative ground for affirming the order of the trial court.

POC prays for such other relief both at law or equity to which it may be justly

entitled.

Respectfully submitted,

WRIGHT & GREENHILL, P.C.

221 West 6th Street, Suite 1800

Austin, Texas 78701

512/476-4600

512/476-5382

rpringle@w-g.com

hcoughlin@w-g.com

mthompson@w-g.com

/s/ Brantley Ross Pringle, Jr.

By:_____________________________

Brantley Ross Pringle, Jr.

State Bar No. 16330001

Heidi A. Coughlin

State Bar No. 24059615

Mike Thompson, Jr.

State Bar No. 19898200

ATTORNEYS FOR REAL PARTIES

IN INTEREST

-20-

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. Pro. 9.4, the undersigned certifies this brief

complies with the type-volume limitations of Tex. R. App. Pro. 9.4(i)(2)(3).

1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN TEX. R. APP.

PRO. 9.4(i)(1), THE BRIEF CONTAINS (select one):

A. 3524 words, OR

B. _____ lines of text in monospaced typeface.

2. THE BRIEF HAS BEEN PREPARED (select one):

A. in proportionally spaced typeface using:

X Software Name and Version: Microsoft Word: Mac 2011 in

Times New Roman 14, OR

B. in monospaced (nonproportionally spaced) typeface using:

Typeface name and number of characters per inch.

Mike Thompson

Mike Thompson, Jr.

NOTICE OF ELECTRONIC FILING

The undersigned counsel certifies that on the 20th day of April, 2015, he has

electronically filed the foregoing document with the 3rd Court of Appeals using the

court’s electronic filing system.

CERTIFICATE OF SERVICE

I hereby certify that on the 20th day of April, 2015, a true and correct copy of

the foregoing Brief has been mailed, by certified mail, return receipt requested, to

the following:

David Junkin

LAW OFFICE OF DAVID JUNKIN

P. O. Box 2910

Wimberley, Texas 78676

L. Hayes Fuller, III

NAMAN HOWELL SMITH & LEE, P.L.L.C

400 Austin Avenue, Suite 800

P. O. Box 1470

Waco, Texas 75703-1470

/s/ Mike Thompson, Jr.

Mike Thompson, Jr.

-22-

No. 03-14-00725-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

IN RE GEORGE GREEN AND GARLAND GREEN

RELATORS

PETITION FOR MANDAMUS FROM CAUSE NO. 18314

RD

33 JUDICIAL DISTRICT COURT OF LLANO COUNTY, TEXAS

HON. ALLAN GARRETT, PRESIDING

APPENDIX OF CASES AND RULES

Exhibit # Document

1. Burton v. Cravey, 759 S.W.2d 160 (Tex.App.—Houston [1st Dist] 1988, no writ)

2. Cleveland v. Williams, 29 Tex. 204, 213 (1867)

3. Cole v. McWillie, S.W.3d , 2015 WL 535562 (Tex.App.—Eastland 2015, no pet.)

4. Crawford v. Morris, 228 S.W.2d 364, 366 (Tex.Civ.App.—Eastland 1950,

writ ref’d n.r.e.)

5. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) cert.

denied, 476 U.S. 1159 (1986)

6. Ezeoke v. Tracy, 349 S.W.3d 679, 685 (Tex. App.—Houston [14th Dist.]

2011, no pet.)

7. Gaughn v. National Cutting Horse Association, 351 S.W. 3d 408

(Tex.App.—Ft. Worth 2011, pet. for review denied

8. Gilmer v. Veatch, 121 S.W. 545 (1909)

9. Huie v. DeShazo, 922 S.W.2d 920, 923-23 (Tex. 1996)

10. In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W. 2d 371, 381-82

(Tex. 1998)

11. In re Campbell, 106 S.W.3d 788 (Tex.App.—Texarkana 2003)

12. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985)

13. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)

14. Nehring v. McMurrain, 45 S.W. 1032 (Tex. Civ. App. 1898)

-23-

15. Scott & White Memorial Hosp. v. Schexnider, 940 S.W.2d 594 (Tex. 1996)

16. Velez v. DeLara, 905 S.W.2d 43 (Tex.App.—San Antonio 1995, no writ

17. Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)

18. Watson v. The Homeowners Association of Heritage Ranch, Inc., 346

S.W.3d 258 (Tex.App.—Dallas 2011, no writ)

19. Wood v. James R. Moriarty, P.C., 940 S.W.2d 359 (Tex.App.—Dallas,

1997, no pet)

20. Tex. Bus. Org Code §252.010 (Vernon 2012)

21. Tex. Bus. Org. Code §22.351 (Vernon 2012)

22. Tex. Bus. Org. Code §1396-2.23A (Vernon 2009)

23. Tex. Prop. Code §82.114 (Vernon 2014)

24. Tex. R. App. Pro. 42.3 (Vernon 2003)

25. Tex. R. Civ. Pro. 190.5 (Vernon Supp. 2014)

26. Tex. R. Civ. Pro. 191.1 (Vernon 2004)

27. Tex. R. Civ. Pro. 191.3(c) (Vernon 2004)

28. Tex. R. Civ. Pro. 191.3(e) (Vernon 2004)

29. Tex. R. Civ. Pro. 192.4 (Vernon 2004)

30. Tex. R. Civ. Pro. 192.6 (Vernon 2004)

31. Tex. R. Civ. Pro. 192.6(a) (Vernon 2004)

32. Tex. R. Civ. Pro. 192.6(b)(4) (Vernon 2004)

33. Tex. R. Civ. Pro. 215.3 (Vernon 2004)

34. Tex. R. Civ. Pro. 301 (Vernon 2008)

35. Tex. R. Civ. Pro. 329b (Vernon 2008)

Other

36. www.Washingtonpost.com “John Roberts, Umpire” 6/28/2012, Chris

Cillizza (visited 2/27)

-24-

Burton v. Cravey, 759 S.W.2d 160 (1988)

purpose, condominium owners were entitled to

inspect “all books and records” of condominium

759 S.W.2d 160

including records and files of attorney for

Court of Appeals of Texas,

association. Vernon's Ann.Texas Civ.St. art.

Houston (1st Dist.).

1396–2.23.

Lou W. BURTON and Galleria

3 Cases that cite this headnote

Diplomat Association, Inc., Appellants,

v.

Jeffrey M. CRAVEY, et al., Appellees. [3] Common Interest Communities

Association records

No. 01–88–00270–CV. | Aug. 18, In the event that condominium association's

1988. | Rehearing Denied Sept. 8, 1988. attorney's records, sought by condominium

owners, were subject to attorney-client privilege,

Condominium association appealed an order of the 269th

court would weigh association's interest

District Court of Harris County, David West, J., which

in nondisclosure of communications against

granted condominium owners a writ of mandamus to inspect

inspection rights of condominium owners.

the association's books and records. The Court of Appeals,

V.T.C.A., Property Code § 81.209; Vernon's

Duggan, J., held that: (1) writ of mandamus was proper

Ann.Texas Civ.St. art. 1396–2.23.

method by which to enforce owners' statutory inspection

rights, and (2) absent proof by association of improper 3 Cases that cite this headnote

purpose for inspecting records, owners were entitled to

inspect all pertinent records including those of association's

attorney.

Attorneys and Law Firms

Affirmed.

*160 Wade B. Reese, Houston, for appellants.

Lou W. Burton, Houston, pro se.

West Headnotes (3)

John K. Grubb, Houston, for appellees.

[1] Mandamus Before SAM BASS, DUGGAN and LEVY, JJ.

Custody of and access to corporate records

and books

Writ of mandamus was proper method to OPINION

enforce condominium owners' statutory rights

to view condominium's records; owners were DUGGAN, Justice.

not required to establish a cause of action

This appeal involves the right to inspect records and books of

against the condominium or a probable right

a condominium association. Appellees, a group of dissident

and probable injury. V.T.C.A., Property Code §

owners, filed a petition for writs of mandamus and injunction

81.209; Vernon's Ann.Texas Civ.St. art. 1396–

because of the appellant Galleria Diplomat Association's

2.23.

board of directors' refusal to allow the inspection of

2 Cases that cite this headnote records. In a corrected order dated March 2, 1988, the trial

court granted the writ of *161 mandamus, ordering the

Association to maintain its books and records at its offices

[2] Common Interest Communities and make these records available for inspection and copying.

Association records The trial court also enjoined appellants from interfering with

Absent proof by condominium association appellees' right to inspect these books and records. The

that inspection of records was for improper

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Burton v. Cravey, 759 S.W.2d 160 (1988)

court further ordered the delay of the annual election by the audited at least once each year by an auditor who is not

Association's members. associated with the condominium regime.

All of the points of error attack the ordered production of (Emphasis added.)

records in the possession of appellant Burton, the attorney for

the appellant Association. The trial court entered a finding of The Texas Non–Profit Corporation Act,

fact that the Association's Board of Directors hired Burton “to Tex.Rev.Civ.Stat.Ann. art. 1396–2.23 (Vernon 1980),

handle numerous matters for the Association and that records additionally provides:

of Lou W. Burton relating to Association matters are part of

A. Each corporation shall keep correct and complete

the books and records of the Galleria Diplomat Townhomes

books and records of account and shall keep minutes of

Homeowner's Association, Inc. a/k/a the Galleria Diplomat

the proceedings of its members, board of directors, and

Association, Inc.” This finding of fact is not challenged by

committees having any authority of the board of directors

point of error and is therefore binding on appeal. Wade v.

and shall keep at its registered office or principal office

Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.—Beaumont

in this State a record of the names and addresses of its

1980, writ ref'd n.r.e.). The court ordered the production of

members entitled to vote.

“all of Lou W. Burton's records and files in any way related

to his representation” of the Association. B. All books and records of a corporation may be inspected

by any member, or his agent or attorney, for any proper

In their first of three points of error, appellants contend that purpose at any reasonable time.

the trial court erred in ordering the production of Burton's

records because the application and proof fail to establish a (Emphasis added.)

cause of action or a probable right and a probable injury.

In their application for writ of mandamus, appellees were

[1] Appellants mischaracterize the nature of the trial court attempting to enforce their statutory rights as condominium

proceedings. For example, they argue that appellees have apartment owners to inspect the “accounts and supporting

other adequate remedies under Tex.R.Civ.P. 167, 168 and vouchers of a condominium regime” under Property Code

737 to pursue inspection. This assertion ignores the fact § 81.209, and as corporation members to inspect “all books

that a writ of mandamus is the proper remedy to enforce and records” of a non-profit corporation under article 1396–

the right of inspection. See 20 R. Hamilton, Texas Business 2.23. The trial court did not err in ordering the production of

Organizations § 801 (1973). Appellees did not have to Burton's records.

establish an independent cause of action; they merely had to

establish their statutory right to inspect. Appellants' first point of error is overruled.

Tex.Prop.Code Ann. § 81.209 (Vernon 1984) provides the *162 Appellants contend in their second point of error that

following for condominium records: the trial court erred in ordering production of the records and

files of the attorney for the condominium association because

(a) The administrator or board of administration of a the order is overly broad, unduly burdensome, and requires

condominium regime or a person appointed by the bylaws the production of irrelevant information.

of the regime shall keep a detailed written account of the

receipts and expenditures related to the building and its Appellees sought the production of records that they were

administration that specifies the expenses incurred by the statutorily entitled to inspect. Appellants' complaints about

regime. the order appear to be an attempt to engraft discovery

notions upon the appellees' statutory right of inspection,

(b) The accounts and supporting vouchers of a

which is independent of any right of discovery in litigation.

condominium regime shall be made available to the

See San Antonio Models, Inc. v. Peeples, 686 S.W.2d 666

apartment owners for examination on working days at

(Tex.App.—San Antonio 1985, orig. proceeding). The right

convenient, established, and publicly announced hours.

to inspect under article 1396–2.23 encompasses “all books

(c) The books and records of a condominium regime must and records.” The trial court found that Burton's files and

comply with good accounting procedures and must be records relating to the Association were the “books and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Burton v. Cravey, 759 S.W.2d 160 (1988)

records” of the Association. This finding is not challenged

Again, we note that appellants are attempting to engraft

on appeal. This right of condominium owners to inspect

notions borrowed from Texas discovery practice onto a

the books and records, like the comparable right to inspect

statutory right to inspect. Article 1396–2.23 contains no

granted shareholders in corporations, is limited by the

limitations on the member's right to inspect as long as the

requirement that the inspection be for any “proper purpose.”

books and records are those of the non-profit corporation

See R. Hamilton, Texas Business Organizations § 804 (1973);

and the inspection is for “any proper purpose.” The trial

see also Annotation, What Corporate Documents Are Subject

court found that Burton's records and files relating to

to Shareholder's Right to Inspection 88 A.L.R.3d 663 (1978).

the Association were part of the Association's books and

records, and appellants have not contended that the intended

[2] Once the trial court found that Burton's files and

inspection is for an improper purpose. The only limitation

records relating to the Association were part of the books

under article 1396–2.23 is “proper purpose.” Appellants

and records of the Association, appellees were entitled to

have failed to prove that the purpose of the inspection was

inspect them for any “proper purpose.” Appellants, however,

improper.

do not contend that the intended inspection is for an improper

purpose. There was testimony by appellees that they were

[3] Moreover, if the attorney-client privilege did apply,

concerned about the “substantial” and “inordinate” fees paid

we would hold that the trial court did not abuse its

to Burton by the Association. Although the parties have

discretion in ordering the inspection of Burton's records. The

presented no cases squarely on point, it would appear that it

attorney-client privilege is not absolute; appellants' interest

was the appellant Association's burden of proof to establish

in the nondisclosure of communications protected by the

the absence of proper purpose. Uvalde Rock Asphalt Co.

privilege would have to be balanced against the inspection

v. Loughridge, 425 S.W.2d 818 (Tex.1968); Moore v. Rock

rights of the members of the non-profit corporation. See

Creek Oil Corp., 59 S.W.2d 815 (Tex.Comm'n App.1933,

In re LTV Securities Litigation, 89 F.R.D. 595, 609–611

holding approved); see also, 5A Fletcher, Cyclopedia of the

(N.D.Tex.1981). Under the facts of this case, the trial court

Law of Private Corporations § 2253.1 (1987). The trial

did not abuse its discretion in ordering the inspection of

court, however, sustained appellees' objections to appellants'

Burton's records.

attempted inquiries about ulterior or vindictive motives for

the inspection of records. Appellants do not complain about

Appellants' third point of error is overruled.

the exclusion of this testimony.

The judgment is affirmed.

Appellants' second point of error is overruled.

Appellants contend in their third point of error that the

trial court erred in granting the production order because it

requires the inspection of privileged documents.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

Until this be done, it is merely a sale without a subject-matter

in esse, which cannot take effect in presenti.

29 Tex. 204

Supreme Court of Texas.

Where the vendor sold the corn in his crib before his death,

LARKIN G. CLEVELAND and appointed an agent to measure and deliver it, which

v. the agent did after the death of the principal, but before it

JOHN H. WILLIAMS, ADM'R. was known to the parties, the title did not pass, and the

administrator of the deceased had the right to recover the corn.

January, 1867.

The only exception is the case where the power or authority

*204 The court below charged the jury as follows: “If you is coupled with an interest in the thing actually vested in the

find from the evidence that the corn in question, that is, the agent. The reason of this exception is entirely compatible with

hundred bushels of corn, was in a bulk with other corn, and the general ground on which the rule is founded: it is, that

had not been measured out and separated from the bulk, so the agent, having the legal title to the property in himself, is

that the same could be identified previous to the death of capable of transferring it in his own name, notwithstanding

Hall, then the sale was incomplete, and you will find for the the death of his principal; and the death of his principal,

plaintiff the value of the corn as proved.” This was error. therefore, has no operation upon his acts.

By the common law, if a seller make a proposition, and the This was not so by the civil law, but, by the common law,

buyer accept, and the goods are in the possession of the seller, the death of the principal is an instantaneous and absolute

and nothing remains to be done to identify them, or in any revocation of the authority of the agent, unless the power be

way prepare them for delivery, the sale is complete, and the coupled with an interest.

property in the goods passes at once. The buyer acquires not a

mere jus ad rem, but an absolute jus in re, and he may demand APPEAL from Polk. The case was tried before Hon.

delivery at once on tender of the price, and sue for the goods SAMUEL A. WILSON, one of the district judges.

as his own, if delivery be refused.

The petitioner, who sues as the administrator of the estate

The 17th section of the statute of frauds and perjuries (Charles of Thomas B. Hall, deceased, alleges that said Hall died

II), which requires that delivery by the vendor and acceptance in September, 1860; that on the day of his death he was

by the vendee of part of the goods sold, or something given in possessed, as of his own property, of one hundred bushels

earnest or part payment to bind the bargain, or that some note of corn, worth $1.50 per bushel; that after the death of said

or memorandum of the bargain, in writing, to be signed by the Hall the defendant took the said corn, without authority,

parties, etc., in order to give validity to the contract, *205 and converted the same to his own use, and, therefore, lays

has never been re-enacted in Texas, and it has not become a damages at $500.

part of our common law. Pas. Dig. art. 978, note 418.

The defendant plead, 1st, general demurrer; 2d, general

No sale is complete, so as to vest in the vendee an immediate denial; and, 3d, specially, that in the life-time of the said Hall

right of property, so long as anything remains to be done the respondent loaned to him $200, for which Hall gave to

between the buyer and seller in relation to the goods. The him his promissory note; that afterwards said Hall sold to

goods sold must be separated and identified by marks and him one hundred bushels of corn, at $1 per *206 bushel,

numbers, so as to be completely distinguished from all other in part payment of said note, which respondent duly credited

goods, or from the bulk or mass with which they happen to thereon; that said corn, so bought and paid for before the death

be mixed. of said Hall, is the same for which he is sued; that the balance

of said note he now holds as a valid and subsisting claim

The goods sold must be ascertained, designated, and against said estate, unpaid, etc.

separated from the stock or quantity with which they are

mixed, before the property can pass. The evidence is in substance as follows: John S. Cleveland

states that in the fall of 1860 Thomas B. Hall told him that he

had sold to Larkin G. Cleveland one hundred bushels of corn

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

in payment of a debt he owed to said Larkin G. Cleveland, and

that said Hall told him (witness) to retain that amount of corn 8 Cases that cite this headnote

out of a large bulk of corn then in his (Hall's) crib, and that C.

B. Hall would measure it. A few weeks after this Thomas B. [3] Sales

Hall died, away from home, on his way to Galveston. After Part of Specific Stock or Mass

the death of Thomas B. Hall (which was then unknown), C. B.

Where a certain number of bushels of corn are

Hall measured and delivered the corn to Larkin G. Cleveland,

sold from a quantity in bulk in the vendor's crib,

measuring it from a large bulk of corn then in Hall's crib.

the sale is not completed until the amount sold is

separated and measured.

C. B. Hall, brother of deceased, testified to the same facts.

By agreement of counsel, it was admitted, as if proved, that 30 Cases that cite this headnote

Larkin G. Cleveland held a note on Thomas B. Hall for $200,

and that it was credited with one hundred bushels of corn, at

$1 per bushel, amount received as measured by C. B. Hall.

Attorneys and Law Firms

The charge complained of is as follows: “3d. If you find from

the evidence that the corn in question, that is, the one hundred C. L. Cleveland, for appellant. The measuring of the corn was

bushels, was in a bulk with other corn, and had not been merely a formal act, which could be well executed *207 after

measured out and separated from the bulk, so that the same the death of Hall, by the party nominated for that purpose.

could be identified previous to the death of Hall, then the sale It is admitted, as a general proposition, that the death of the

was incomplete, and you will find for the plaintiff the value principal operates a revocation of an agency. But where an

of the corn as proved.” authority is coupled with an interest, or where it is given

for a valuable consideration, or as security, it is otherwise.

There were a verdict and judgment for plaintiff, from which Story, Agency, § 477. The reason of the exception is entirely

the defendant appealed, and assigned for error the mistake in compatible with the general ground on which the rule is

the charge. founded. It is, that the agent, having the legal title to the

property vested in himself, is capable of transferring it in his

own name, notwithstanding the death of the principal, and

the death of the principal has no operation on his act. The

West Headnotes (3)

power given by the principal, under such circumstances, is

rather an assent or agreement that the agent may transfer the

[1] Frauds, Statute of property vested in him, free from any equities of the principal,

Statutory Provisions than strictly a power to transfer. Story, Agency, § 489. Nice

The seventeenth section of the statute of frauds distinctions are drawn in the law books as to what is necessary

and perjuries (29 Car.II, c. 3) has never been re- “to complete” a sale, especially so where the question of lien

enacted in this state, and has not become a part for price is involved, or the right of a subsequent purchaser, or

of our common law. of fraud as against creditors. But in this case no such questions

arise.

1 Cases that cite this headnote

As between the parties, the right of property passed. 1 Par.

Con. § 5, bot. page 465; and Noy, Max. 88. The corn was

[2] Principal and Agent bought and paid for; it only remained to be measured. This

Acts Done in Ignorance of Principal's Death was to be done, not by the vendor, nor the vendee, but by a

An agent appointed to complete a sale of third party, acting for both, in his own name. What remained

property of his principal, in which the agent to be done was to be performed by John S. Cleveland and

himself has no interest, cannot act after the C. B. Hall. The former was “to retain” the corn; the latter

principal's death, whether or not he has received to measure it; trusts cognate with the sale, springing out of

notice thereof. the contract of sale, reposed in them, upon consideration paid

attaching at once to the property and in them, to be executed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

for the benefit of L. G. Cleveland, which they could and did other corn and measured, so as to be identified, and capable

execute in their own names; and that is the true test of the of specific delivery to and possession by the vendee; and,

lawfulness of the act. Had the same power been given to the second, that if not so completed in the lifetime of Hall,

purchaser by the vendor “to retain” and measure, under like the act of his agent, C. B. Hall, in separating, measuring,

*208 circumstances, the death of the vendor clearly would and delivering the corn after the death of his principal, was

not revoke that power, because it would be coupled with an unauthorized and void, and conferred no right upon Cleveland

interest. Does the rule change when the power is conferred to the corn delivered. We are of opinion that the charge on

on a third party to do the same thing? If so, its flexibility is both propositions is correct.

marvelous. Hunt v. Rousmanier's Adm'r, 8 Wheat. 201; and

Knapp v. Alford, 10 Page, 205. Further, the measuring and By the common law, if the seller make a proposition and the

delivery were before the death of T. B. Hall was known. The buyer accept, and the goods are in the possession of the seller,

act was in good faith, and might well rest on that ground, if and nothing remains to be done to identify them, or in any

it were simply the execution of a naked power. Cassidy v. way prepare them for delivery, the sale is complete, and the

McKenzie, 4 Watts & S. 282. But what shall be said of the property in the goods passes at once. The buyer acquires not a

equities of the case? Cleveland's debt, to the amount of the mere jus ad rem, but an absolute jus in re, and he may demand

credit given thereon, is extinguished. Shall the estate of Hall delivery at once on tender of the price, and sue for the goods

get the benefit of the judgment besides, or shall Cleveland as his own if delivery be refused. 2 Kent, Com. 492; 2 Par.

be driven to some sort of doubtful remedy to get back the Con. 320; 1 Par. Con. 441; Story, Sales, § 300.

price paid? Such circuity is not necessary to adjust the equities

arising, and is abhorrent to a sound interpretation of the An innovation upon the principles of the common law on

principles pervading the authorities. this subject was made in England by the 17th section of

the statute of frauds and perjuries of Charles II, which has

The attention and inquiry of the jury were limited alone to the been substantially re-enacted in nearly all the states of the

fact, that the measuring of the corn occurred after the death Union except Texas. This section requires delivery by the

of T. B. Hall. The assumption that the contract of sale was vendor, and acceptance by the vendee of part of the goods

incomplete, or that, if incomplete, it could not be completed sold, or something given in earnest or part payment to bind

after Hall's death, by measuring and delivery, is not well the bargain, or that some note or memorandum in writing

founded, and for that error the cause should be reversed. of the bargain be signed, etc., etc., in order to give validity

to the contract, so that an action for its enforcement may

No brief for the appellee has been furnished to the reporter. *210 be maintained. This section of the statute of Charles

has never been enacted or of force in this state, and the

Opinion common law, unaffected by its provisions, furnishes the rule

by which the validity of contracts of sale of chattels must be

COKE, J.

tried here. Delivery as between the parties is not essential to

The only questions presented by the assignments of error, the completeness of a sale of a chattel, unless made so by

necessary to be considered, arise on the third clause in the the terms of the bargain. Story, Sales, § 300; 2 Kent, Com.

charge of the court to the jury, which reads as follows: 39, 492; 1 Par. Con. 441. But it is essential that nothing

shall remain to be done (by the vendor) to the thing sold

“If you find, from the evidence, that the corn in question, that to put it into a condition for sale, or to identify it, or to

is, the hundred bushels of corn, was in a bulkwith other corn, discriminate it from other things. If anything remains to be

and had not been measured out and sepated *209 from the done by the vendor which is material or important before the

bulk, so that the same could be identified, previous to the vendee can identify or possess the thing sold, or before it

death of Hall, then the sale was incomplete, and you will find becomes deliverable, the sale is executory and incomplete,

for the plaintiff the value of the corn as proved.” and the property in it does not pass absolutely to the vendee.

Judge Story, in his work on Sales, says: “No sale is complete,

Considering this instruction with reference to the facts of so as to vest in the vendee an immediate right of property,

this case, it involves two propositions: first, that in order to so long as anything remains to be done between the buyer

complete the sale of the corn, and pass the title to Cleveland, and the seller in relation to the goods. The goods sold must

it was necessary that it should have been separated from be separated and identified by marks and numbers, so as to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

be completely distinguished from all other goods, or from the in order to separate the goods from a larger mass, of which

bulk or mass with which they happen to be mixed.” Story, they form a part; but when the entire mass is sold and must

Sales, § 296. be measured, simply with a view to the ascertainment of

its price, *212 for the purpose of a settlement, the better

Chancellor Kent, in his Commentaries, vol. 2, p. 496, says: opinion, on principle and authority, is, that the title passes. By

“If anything remains to be done, as between the seller and keeping the distinction between a specific and an indefinite

buyer, before the goods are to be delivered, a present right commodity in view, it is believed that most of the cases

of property does not attach in the buyer. This is a well- upon this subject can be explained, and their apparent conflict

established principle in the doctrine of sales. But where reconciled. Macomber v. Parker, 13 Pick. 182; Cunningham

everything is done by the seller, as to a parcel of the quantity v. Ashbrook, 20 Mo. 560; Scott v. Wills, 6 Watts & S. 368;

sold, to put the goods in a deliverable state, the property, and Riddle v. Varnum, 20 Pick. 283, 284; Crofoot v. Bennett, 2

consequently the risk, passes to the buyer; and, as to so much Comst. 260.

as requires further acts to be done on the part of the seller, the

property and the risk remain with the seller. The goods sold This distinction is forcibly put by Mr. Justice Strong,

must be ascertained, designated, and separated from the stock delivering the opinion of a majority of the supreme court of

or quantity with which they are mixed, before the property New York, in Crofoot v. Bennett, in which he says: “But if

can pass.” the goods sold are clearly identified, then, although it may

be necessary to number, weigh, or measure them, in order

*211 The same doctrine is asserted with equal emphasis by to ascertain what would be the price of the whole at a rate

Mr. Parsons in his work on Contracts, vol. 1, p. 441, and agreed upon between the parties, the title will pass. If a flock

in Brown on Sales, p. 44. While these general principles are of sheep be sold at so much the head, and it is agreed that they

recognized and affirmed by an almost unbroken concurrence shall be counted after the sale, in order to determine the entire

of the authorities, there is much apparent conflict in their price of the whole, the sale is valid and complete. But if a

practical application in the adjudicated cases. We understand given number out of the whole are sold, no title is acquired by

the reason underlying these principles to be the fundamental the purchaser until they are separated, and their identity thus

one, that until the property, which is the subject of the sale, ascertained and determined. The distinction in all these cases

is designated and defined, it is, as it were, a sale without a does not depend so much upon what is to be done, as upon the

subject-matter in esse, which cannot take effect in presenti, object which is to be effected by it. If that be specification, the

for the want of that necessary ingredient in a sale to act on, property is not changed; if it be merely to ascertain the total

and is, therefore, necessarily executory and incomplete. The value at designated rates, the change of title is effected.”

purchaser, in such a sale, cannot maintain an action to recover

specific property, if delivery be refused, because he has no The same doctrine is distinctly maintained by the supreme

right in any specific part of the bulk, an undefined portion court of Massachusetts, in Macomber v. Parker and in

of which he has contracted for. In such an action he must Riddle v. Varnum, and by the supreme court of Missouri, in

describe and identify, with reasonable certainty, according to Cunningham v. Ashbrook, and is believed to be well sustained

its character, the property he sues for, and this he cannot do, by a great majority of all the adjudicated cases. An application

because his rights are indefinite, and cannot be attached to or of these principles to this branch of the charge of the court

located in any designated part of the mass. He has not that jus fully vindicates its correctness with reference to the facts of

in re which alone entitles him to recover, and without which this case.

his purchase is incomplete. 6 East, 614. This reason does

not exist where the subject-matter of the sale is designated *213 Passing to the consideration of the remaining

and defined, as where the whole bulk is sold. It is true, it proposition involved in the charge of the court under

may have to be weighed, counted, or measured; but if this discussion, we are of opinion that the setting apart and

is to be done to enable the parties to make a settlement, and designation by measurement of the corn from the bulk of

not for the purpose of completing the sale, the right passes which it was a part, by C. B. Hall, the agent, after the death

to and vests in the purchaser. It is certainly correct, as laid of his principal, cannot aid the rights of the appellant, for the

down in the books, that when anything remains to be done by reason that the death of the principal operated a revocation,

the seller, such as counting, weighing, or measuring, the title or, it might more properly be said, a destruction of the power

does not pass, when either of these operations is necessary of the agent.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

liberality and equity of that which obtains in the civil law.

This is an ancient and well-settled doctrine of the common Story, Agency, §§ 495 to 498.

law, and it seems that the fact of the agent having acted in

good faith, in ignorance of the death of his principal, is not The rule of our law, as to the time when the revocation of an

sufficient to take a case out of the operation of this general authority by the act of the principal takes effect, is equally

rule, where the power is a naked one, not coupled with an clear, comprehensive, and just. As to the agent himself, it

interest. takes effect from the time when the revocation is made known

to him; and as to third persons when it is made known to

“The only admitted exception,” says Judge Story, in his work them, and not before. And this the principal may do by making

on Agency, “that properly constitutes an exception to this the revocation as notorious as the fact of agency was. Until

general rule, is the case where the power or authority is it is thus made known, the principal is bound by the acts of

coupled with an interest in the thing, actually vested in the his agent, done within the scope of his authority, upon the

agent. The reason of this exception is entirely compatible with familiar principle, that where one of two innocent persons

the general ground on which the rule is founded. It is, that must suffer, he shall suffer who, by his confidence, or silence,

the agent, having the legal title to the property in himself, is or conduct, has misled the other. 1 Par. Con. 60; 11 N. H.

capable of transferring it in his own name, notwithstanding 397; Story, Agency, § 470. This is in striking contrast with the

the death of his principal, and the death of his principal other principle, which holds, where the revocation is implied

therefore has no operation upon his act.” Story, Agency, § from the death of the principal, that every act of the agent,

489. though done in good faith, in pursuance of his authority,

without notice of his principal's *215 death, is unauthorized

It is said by Chancellor Kent, vol. 2 of his Commentaries, p. and invalid. Harsh and unjust as must be the operation of this

646, that “By the civil law, and the law of those countries principle in many cases, it is too well settled by the authorities,

which have adopted the civil law, the acts of an agent, done, English and American, to be departed from.

bona fide, after the death of his principal and before notice

of his death, are valid and binding on his representatives. But The leading argument upon which it is sustained in the books

this equitable principle does not prevail in the English law, is, that the agent can do only what his principal may do, and

and the death of the principal is an instantaneous and absolute must act in his principal's name, and that as a dead man can

revocation of the authority of the agent, unless the power be do no act, so a valid act cannot be done in a dead man's

coupled with an interest.” name. Hunt v. Rousmanier's Administrator, 8 Wheat. 174;

Story, Agency, § 488. Accordingly, in apparent consonance

There are some authorities which go far toward maintaining with that course of reasoning, some respectable authorities

*214 that the common and civil law on this subject may seem strongly inclined to maintain the doctrine that, when

be harmonized. So it is understood to have been held in the agency can be, and ordinarily is, properly executed in the

Pennsylvania, in Cassidy v. McKenzie, 4 Watts & S. 282. In name of the agent, without reference to the principal, the acts

this case a payment made to an agent, after the death of the of the former, done after the death of the latter, without notice

principal, was held binding on the representatives of the latter. of the death, are valid and binding; though it must be admitted,

Judge Story, in his work on Agency, inclines to the opinion, that the cases relied on as illustrating this doctrine are usually

that the difference between the civil and the common law is either in fact powers coupled with an interest, or are governed

more apparent than real, and that where the act must be done by like analogies. Story, Agency, §§ 33, 34, 496, 497; Davis

in the name of the principal, the same objection would obtain v. Lane, 10 N. H. 413; 1 Par. Con. 62; Dick v. Page, 17 Mo.

to it after the death of the principal in the foreign law as it 234; Russ. Fac. and Brok. 360; Chit. Com. & Mer. 223.

does in our law, and that the difference between our law and

the former seems to rest, not so much upon a difference of In Robertson v. Paul, 16 Tex. 472, it was held by this court,

principle, as upon the difference in the modes of executing that a power to sell, contained in a mortgage or deed of

the authority. trust, although not revoked, on general principles, by the

death of the grantor, being a power coupled with an interest,

He nevertheless admits the force and binding authority of is inconsistent with our statute respecting the settlement

the common law principle, while he confesses the greater of estates of deceased persons, and, therefore, cannot be

executed after the death of the grantor. In this case, we have

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Cleveland v. Williams, 29 Tex. 204 (1867)

94 Am.Dec. 274

revoked by the death of his principal, the representatives of

not deemed it necessary to consider the provisions of our

the latter are not bound by his unauthorized act. The jury were

statute in connection with the question, or to determine what

properly instructed, and their verdict is fully supported by the

influence, if any, it might have had if the power had been

testimony.

such a one as survived the death of the grantor, it being clear,

on general principles, that the authority of the agent was of

There is no error in the judgment, and it is

a character that was, ipso *216 facto, extinguished by the

death of his principal. C. B. Hall, the agent, had no title or

Affirmed.

interest, legal or equitable, in the subject-matter of his agency.

It is not pretended that he had possession of the corn that was

in the crib and on the plantation of his principal, and the only

authority he is shown to have had over it was, to set apart and Parallel Citations

measure the number of bushels contracted to the appellant.

His was a naked power. Having executed it after it had been 1867 WL 4513 (Tex.), 94 Am.Dec. 274

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

2015 WL 535562 West Headnotes (18)

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN [1] Contracts

RELEASED FOR PUBLICATION IN THE Effect of invalidity

PERMANENT LAW REPORTS. UNTIL RELEASED, Because a voidable contract continues in effect

IT IS SUBJECT TO REVISION OR WITHDRAWAL. until active steps are taken to disaffirm the

contract and because a void contract is wholly

OPINION

ineffective from the outset, the distinction is

Court of Appeals of Texas,

significant.

Eastland.

Cases that cite this headnote

Stephen C. Cole and Robert Strack, Appellants

v.

Michael McWillie, Wanda Juanita [2] Contracts

Phillips, and Delvonne Burke, Appellees Physical or mental condition of party

The right to disaffirm a contract survives the

No. 11–12–00265–CV | death of the incompetent person and descends to

Opinion filed January 15, 2015 her heirs or her personal representative.

Synopsis Cases that cite this headnote

35

Background: Holder of proceeds from a /640

nonparticipating royalty interest in a tract of land filed [3] Limitation of Actions

interpleader action to determine the owners of the interest. Rescission or cancellation

Grantees of the interest, pursuant to a deed executed by The right to disaffirm a contract is subject to a

the original property owner's attorney-in-fact, filed cross- four-year statute of limitations. Tex. Civ. Prac.

claim for a declaration that the deed was valid, and original & Rem. Code Ann. § 16.051.

property owner's heirs and their assignees counterclaimed

for a declaration that the deed was void due to the owner's Cases that cite this headnote

incapacity when the deed was executed. The 238th Judicial

District Court, Midland County, awarded partial summary

[4] Contracts

judgment to heirs and assignees, finding the deed to be

Physical or mental condition of party

void, and then entered judgment after a bench trial resolving

additional matters. Grantees appealed. A contract executed by a person who lacks

mental capacity is voidable, not void.

Cases that cite this headnote

[Holding:] On denial of rehearing, the Court of Appeals, Jim

R. Wright, C.J., held that deed was voidable, rather than void,

[5] Deeds

and thus any action to disavow the deed was subject to four-

Effect of invalidity

year statute of limitations.

Limitation of Actions

Rescission or cancellation

Reversed and remanded. Deed executed by property owner's attorney-in-

fact after owner became mentally incompetent

was voidable, rather than void, and thus any

action to disavow the deed was subject to four-

year statute of limitations, even though the

power of attorney, which was executed before

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

owner became incompetent, was not a durable he himself had personally acted; to this extent,

power of attorney; statute authorizing durable both the principal and the agent are only one

powers of attorney did not make all other powers person, and thus, a deed executed by an agent for

terminate upon the principal's incapacity, and and with that authority from his principal is as if

declaring such a deed to be void would deprive executed by the principal himself.

a principal or her heirs of the ability to affirm

an advantageous contract, and would allow a Cases that cite this headnote

claimant to seek to invalidate a deed many years

after its execution. Tex. Prob. Code Ann. § [10] Deeds

36A(1980); Tex. Civ. Prac. & Rem. Code Ann. Effect of invalidity

§ 16.051.

Principal and Agent

Cases that cite this headnote Construction of letters or powers of

attorney

Principal and Agent

[6] Principal and Agent

Deeds

Nature of the relation in general

An attorney-in-fact who was appointed in a

Agency is a consensual relationship between two

power of attorney that did not contain the

parties where one, the agent, acts on behalf of

language making it a durable power of attorney

the other, the principal, subject to the principal's

and who executes a deed on behalf of an

control.

incompetent principal, even when the principal

Cases that cite this headnote was competent at the time he appointed the

attorney-in-fact to act on his behalf, creates an

effective and valid deed that is voidable at the

[7] Principal and Agent election of the principal or the principal's estate.

Nature of the relation in general Tex. Prob. Code Ann. § 36A(1980).

Principal and Agent

Appointment of Agent Cases that cite this headnote

For an agency relationship to exist, there must be

both a meeting of the minds between the parties [11] Principal and Agent

and some act constituting the appointment of an Death of Principal

agent. An agent's authority to bind his principal

terminates upon the principal's death.

Cases that cite this headnote

Cases that cite this headnote

[8] Principal and Agent

Letters or Powers of Attorney Under Seal [12] Contracts

The appointment of an attorney-in-fact creates an Physical or mental condition of party

agency relationship. Contracts

Effect of invalidity

Cases that cite this headnote

Infants

Capacity to contract in general

[9] Principal and Agent

Infants

Nature of the relation in general

Avoidance and disaffirmance

Principal and Agent

When a contract is executed on behalf of an

Deeds

incapacitated person, whether by infancy or

An important principle of agency law is that one by mental incompetence, the party in danger

who authorizes another to act for him acts as if of unfair disadvantage in the transaction is

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

the “incapacitated party,” while the party who than voidable. Tex. Civ. Prac. & Rem. Code Ann.

transacts with the incapacitated party suffers no §§ 16.051, 16.069; Tex. R. Civ. P. 94.

potential detriment in the bargaining process; the

protections offered by the law should therefore Cases that cite this headnote

benefit the incapacitated party by allowing him

to disavow the contract upon his return to [16] Limitation of Actions

sufficient capacity. Necessity

Cases that cite this headnote Limitation of Actions

Replication or reply and subsequent

pleadings

[13] Contracts

A party seeking to avail itself of a rule in

Estoppel and Ratification

avoidance of a statute of limitations must

Contracts affirmatively plead its theory of avoidance in its

Effect of invalidity original petition or a supplemental petition. Tex.

The benefit of being able to disavow a contract R. Civ. P. 94.

made on behalf of an incapacitated principal

extends to the heirs of a deceased principal Cases that cite this headnote

or the guardian of a permanently incapacitated

principal; in such a case, the benefited party [17] Judgment

can secure the advantage of a good bargain by Motion or Other Application

ratifying the contract or he can relieve himself

A party seeking summary judgment must include

of a bad bargain by electing to disavow the

in its motion the specific grounds on which relief

agreement.

is requested. Tex. R. Civ. P. 166a(c).

Cases that cite this headnote

Cases that cite this headnote

[14] Contracts

[18] Appeal and Error

Physical or mental condition of party

Grounds for Sustaining Decision Not

To hold an agreement made on behalf of an Considered

incapacitated principal void as a matter of law

An appellate court may not affirm a summary

would deprive the disadvantaged party of the

judgment on grounds not expressly set out in the

benefit of an advantageous contract.

motion for summary judgment. Tex. R. Civ. P.

Cases that cite this headnote 166a(c).

Cases that cite this headnote

[15] Limitation of Actions

Rescission or cancellation

Property owner's heirs and their assignee

waived, for purposes of appeal, their argument On Appeal from the 238th Judicial District Court,

that statute allowing assertion of a time- Midland County, Texas, Trial Court Cause No. CV47686

barred counterclaim or cross-claim precluded

application of the four-year statute of limitations Attorneys and Law Firms

for actions to disavow a voidable contract to M. McDonnold Jr., Steven C. Kiser, for Stephen C. Cole and

their counterclaim seeking to disavow a deed Robert Strack.

executed by owner's attorney-in-fact after owner

had become mentally incompetent, where heirs H. Clay Moore, Jill C. Pennington, for Michael McWillie,

and assignee did not raise the statute in the trial Wanda Juanita Phillips, and Delvonne Burke.

court, arguing only that the deed was void, rather

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

Van Huss died on June 11, 1986, leaving a Last Will and

Panel consists of: Wright, C.J., Willson, J., and Bailey, J. Testament. The will was admitted to probate as a Muniment

of Title. In the will, Van Huss provided that her estate was

to be distributed one-half to Phillips, one-fourth to Delvonne

OPINION Burke (Van Huss's granddaughter), and one-fourth to Sherry

Jackson a/k/a Schiara Reindollar (Van Huss's granddaughter).

JIM R. WRIGHT, CHIEF JUSTICE

Therefore, Phillips, Burke, and Reindollar acquired all of Van

*1 This court's former opinion and judgment dated August Huss's interest in the NPRI upon her death. They subsequently

29, 2014, are withdrawn. This court's opinion and judgment executed a number of assignments of the interest to Phillips's

dated January 15, 2015, are substituted therefor. The motion son, Michael McWillie.

for rehearing filed by Stephen C. Cole and Robert Strack

is denied, and the motion for rehearing filed by Michael Henry Resources, L.L.C. held certain proceeds related to the

McWillie, Wanda Juanita Phillips, and Delvonne Burke is NPRI. Because it was uncertain as to the ownership of the

also denied. proceeds, Henry Resources filed an interpleader action in

2010. In an agreed partial order, the trial court ordered that

The dispositive issue in this case is whether a deed is void the proceeds held by Henry Resources were to be deposited

or voidable when it is executed by an attorney-in-fact who is into the registry of the court. Henry Resources complied with

acting on behalf of one who was competent at the time of the the order, and the trial court dismissed it from the lawsuit.

execution of the power of attorney, but who was incompetent

at the time of the execution of the deed. The trial court Phillips, Burke, and McWillie (Appellees) later filed a

determined that such a conveyance was void as a matter of motion for partial summary judgment in which they sought

law. We reverse and remand. a declaration from the trial court that the deed executed

by Phillips in her capacity as Van Huss's attorney-in-fact

This case concerns the ownership of an undivided 35/640 was void as a matter of law. Cole and Strack responded

nonparticipating royalty interest (the NPRI) in a tract of that the deed was voidable, not void, and that the statute of

land located in Andrews and Martin Counties. The summary limitations had expired on any suit to avoid the deed. After a

judgment evidence shows that Rosa Van Huss was the owner hearing, the trial court granted the motion for partial summary

and common source of title to the NPRI. The NPRI is subject judgment and concluded that the deed was void; the trial court

to and covered by an oil and gas lease in which the lessor determined that, because Van Huss was incompetent when

reserved a one-fifth (1/5) royalty. Phillips executed the deed, Phillips lacked the authority to

transact business on behalf of Van Huss at that time.

Van Huss executed a power of attorney in favor of her

daughter, Wanda Juanita Phillips, on April 1, 1980. The *2 At a bench trial, the parties entered into stipulations of

parties agree that Van Huss was competent at the time she fact relating to the chain of title and other matters. After

executed the power of attorney. The power of attorney was not the trial, the trial court entered its final judgment. In that

durable as provided for in Section 36A of the Texas Probate judgment, the trial court incorporated the previous order

Code. Section 36A was in effect at the time of the execution granting partial summary judgment, rendered judgment that

the deed was void and that title was held by Appellees,

of the power of attorney. Although Van Huss was never

awarded the proceeds of production to Appellees, denied the

adjudicated to be incompetent, the parties do not dispute that

requests for attorneys' fees, and denied all relief requested by

she became mentally incompetent in June 1982 and remained

Cole and Strack. This appeal followed.

so until her death in 1986.

We review de novo an order granting summary judgment.

In 1985, Phillips executed a quitclaim deed with respect to the

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862

NPRI. She executed the conveyance in her capacity as Van

(Tex.2010). When reviewing a summary judgment, we take

Huss's attorney-in-fact. In that conveyance, Phillips conveyed

as true all evidence favorable to the nonmovant, and we

all of Van Huss's interest in the NPRI to Stephen C. Cole and

indulge every reasonable inference and resolve any doubts in

Robert Strack.

the nonmovant's favor. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex.2003). The party moving

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Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

for summary judgment has the burden of showing that there by the incompetent landowner's attorney-in-fact pursuant to

is no genuine issue of material fact and that it is entitled to that power of attorney, was not void but, rather, was voidable.

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Haase Id. The court reasoned, “We can see no difference in principle

v. Glazner, 62 S.W.3d 795, 797 (Tex.2001). between the act of making a deed which passes the title and

making an instrument which authorizes another person to do

[1] [2] [3] The parties agree that the ultimate issue in the same thing.” Id.

this case is whether the deed was void as a matter of law,

or simply voidable. Because a voidable contract continues in *3 [5] Cole and Strack, in turn, rely on Williams to

effect until active steps are taken to disaffirm the contract and argue that, when a principal becomes incompetent after

because a void contract is wholly ineffective from the outset, having executed a valid power of attorney, any subsequent

the distinction is significant. Mo. Pac. Ry. Co. v. Brazil, action of the attorney-in-fact on the principal's behalf is

72 Tex. 233, 10 S.W. 403, 406 (1888); Country Cupboard, voidable as well. Cole and Strack suggest that the subsequent

Inc. v. Texstar Corp., 570 S.W.2d 70, 74 (Tex.Civ.App.– action amounts to action taken by the incompetent principal.

Dallas 1978, writ ref'd n.r.e.). The right to disaffirm a contract Therefore, they argue that Williams is controlling in this case

survives the death of the incompetent person and descends and that the deed executed by Phillips as attorney-in-fact for

to her heirs or her personal representative. SeeBennett v. Van Huss is not void but, instead, is voidable.

Romos, 151 Tex. 511, 252 S.W.2d 442, 448–49 (1952);

Fuller v. Middleton, 453 S.W.2d 372, 375 (Tex.Civ.App.– Appellees frame their response under principles of agency

Fort Worth 1970, writ ref'd n.r.e.). Additionally, the right to law. They argue that the actions of a purported agent who

disaffirm is subject to a four-year statute of limitations. TEX. lacks authority to bind the principal are void as to the

CIV. PRAC. & REM.s Code Ann. § 16.051 (WEST 2008); principal. According to Appellees, an agent has no authority

SEE ALSO FORD V. EXXON MOBIL CHEM. CO., 235 to bind his principal upon the principal's incapacity unless he

S.W.3D 615, 618 (TEX.2007); SLAUGHTER V. QUALLS, has been authorized to do so pursuant to former Section 36A

139 TEX. 340, 162 S.W.2D 671, 674 (1942). IN THIS CASE, of the Probate Code or its progeny. 1 Thus, their argument

COLE AND STRACK CLAIM THAT, IF THIS COURT goes, when a principal becomes incompetent and his power

HOLDS THAT THE DEED WAS VOIDABLE, RATHER of attorney lacks the specific language from Section 36A

THAN VOID, THE STATUTE OF LIMITATIONS ON that is required to establish a durable power of attorney, any

APPELLEES' RIGHT TO DISAFFIRM THE DEED HAS subsequent action by the agent on the principal's behalf is void

EXPIRED. as a matter of law.

[4] It is settled law in Texas that a contract executed by [6] [7] Agency is a consensual relationship between two

a person who lacks mental capacity is voidable, not void. parties where one, the agent, acts on behalf of the other,

Williams v. Sapieha, 94 Tex. 430, 61 S.W. 115, 116 (1901); the principal, subject to the principal's control. Bhalli v.

Neill v. Pure Oil Co., 101 S.W.2d 402, 404 (Tex.Civ.App.– Methodist Hosp., 896 S.W.2d 207, 210 (Tex.App.–Houston

Dallas 1937, writ ref'd); see alsoIn re Morgan Stanley & Co., [1st Dist.] 1995, writ denied); Lone Star Partners v.

293 S.W.3d 182, 193 (Tex.2009) (Hecht, J., dissenting) (“The NationsBank Corp., 893 S.W.2d 593 (Tex.App.–Texarkana

rule in Texas and most other jurisdictions is that the contract 1994, writ denied); Herschbach v. City of Corpus Christi, 883

[of a party who lacked mental capacity] exists and can be S.W.2d 720 (Tex.App.–Corpus Christi 1994, writ denied).

ratified or avoided.”). In Williams, a landowner executed a For an agency relationship to exist, there must be both a

power of attorney by which he authorized his attorney-in- meeting of the minds between the parties and some act

fact to sell land and to execute a deed on the landowner's constituting the appointment of an agent. Lone Star Partners,

behalf. The landowner lacked the mental capacity to manage 893 S.W.2d at 600.

his affairs at the time that he executed the power of attorney.

Id. Thereafter, the attorney-in-fact executed a deed to the [8] The appointment of an attorney-in-fact creates an agency

property on the incompetent landowner's behalf. The validity relationship. Dernick Res., Inc. v. Wilstein, 312 S.W.3d 864,

of that deed became the subject of a subsequent lawsuit. Id. 877 (Tex.App.–Houston [1st Dist.] 2009, no pet.); Smith v.

The Williams court likened the deed of an insane person to Lanier, 998 S.W.2d 324, 334 (Tex.App.–Austin 1999, pet.

that of an infant. It held that the power of attorney executed denied). Under the common law, the agency authority created

by the incompetent landowner, as well as the deed executed in a power of attorney existed only when the principal was

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

capable of acting on his or her own behalf and terminated executed by an attorney-in-fact on behalf of an incompetent

upon the death or incapacity of the principal. Comerica Bank– principal is void as a matter of law. SeeComerica Bank–

Texas v. Tex. Commerce Bank Nat'l Ass'n, 2 S.W.3d 723, 725 Texas, 2 S.W.3d at 725–26 (addressing validity of power

(Tex.App.–Texarkana 1999, pet. denied) (citing Harrington of attorney that contained Section 36A language); Jensen

v. Bailey, 351 S.W.2d 946, 948 (Tex.Civ.App.–Waco 1961, v. Kisro, 547 S.W.2d 65, 66–67 (Tex.Civ.App.–Houston

no writ)). [1st Dist.] 1977, no writ) (addressing effect of temporary

incapacity on agency relationship); Harrington v. Bailey,

In 1971, the legislature enacted Section 36A of the Probate 351 S.W.2d 946, 948 (Tex.Civ.App.–Waco 1961, no writ)

Code, establishing durable powers of attorney. At the time (addressing effect of gift by agent following legal declaration

Van Huss executed the power of attorney, Section 36A of principal's incapacitation); Scroggins v. Meredith, 131

provided in relevant part: S.W.2d 195, 195 (Tex.Civ.App.–Beaumont 1939, no writ)

(deed—executed by attorney-in-fact after power of attorney

When a principal designates another his attorney in fact had been revoked by marriage—considered void); Wall v.

or agent by power of attorney in writing and the writing Lubbock, 52 Tex.Civ.App. 405, 118 S.W. 886, 888 (Austin

contains the words “this power of attorney shall not 1908, writ ref'd) (deed—executed by agent after principal's

terminate on disability of the principal” or similar words death—considered void).

showing the intent of the principal that the power shall not

terminate on his disability, then the powers of the attorney We believe that Williams is controlling in this case. As we

in fact or agent shall be exercisable by him on behalf of the stated above, Williams provides the settled rule that a deed

principal notwithstanding later disability or incompetence executed by a person who lacks the capacity to do so is

of the principal. voidable as a matter of law, not void. SeeWilliams, 61 S.W.

at 116.

*4 This was the first codification of a law that gave a

principal the ability to provide specifically that a power

[9] [10] An important principle of agency law is that one

of attorney would not terminate upon the disability of the

who authorizes another to act for him acts as if he himself

principal. SeeComerica Bank–Texas, 2 S.W.3d at 726.

had personally acted. “To this extent, both the principal and

the agent are only one person; thus, a [deed] executed by an

However, we disagree with Appellees' assertion that a power

agent for and with that authority from his principal is as if

of attorney automatically terminates upon the disability of

executed by the principal himself.” Lucas v. Whiteley, 550

the principal in the absence of a durable power of attorney

S.W.2d 767, 769 (Tex.Civ.App.–Amarillo 1977, writ ref'd

executed in accordance with Section 36A. To the contrary,

n.r.e.) (citing Julian Petroleum Corp. v. Egger, 15 S.W.2d 36,

we interpret Section 36A to merely provide a method for

39 (Tex.Civ.App.–Fort Worth 1928, writ ref'd)). Given this

a principal to enable his attorney-in-fact to continue to

relationship between an agent and principal, we believe that

act on the principal's behalf subsequent to the incapacity

the proper approach in this case is to import the principal's

of the principal, regardless of whether that incapacity is

lack of capacity to the agent who acts on the principal's

temporary or permanent. We do not interpret Section 36A

behalf. Thus, an attorney-in-fact who was appointed in a

to establish that, in the absence of the durable-power-of-

power of attorney that did not contain the language of Section

attorney language, any deed executed by an attorney-in-fact

36A and who executes a deed on behalf of an incompetent

subsequent to the principal's incapacitation is rendered void

principal, even when the principal was competent at the time

as a matter of law. SeeCampbell v. U.S., 657 F.2d 1174, 1177–

he appointed the attorney-in-fact to act on his behalf, creates

78 (Ct.Cl.1981) (interpreting former TEX. PROB.CODE §

an effective and valid deed that is voidable at the election of

36A as providing a method for a principal to enable a

the principal or the principal's estate.

durable power of attorney rather than providing that, without

such language, the power immediately terminates upon the

*5 [11] [12] [13] [14] Appellees' argument likens a

incapacity of the principal).

principal's incapacity to a principal's death; the law is clear

that an agent's authority to bind his principal terminates

In the cases relied upon by Appellees, the courts address

upon the principal's death. SeeCleveland v. Williams, 29

an agent's authority to act on behalf of an incapacitated

Tex. 204, 213 (1867); Crawford v. Morris, 228 S.W.2d 364,

principal, but those courts did not address the specific

366 (Tex.Civ.App.–Eastland 1950, writ ref'd n.r.e.). But this

issue in this case and stopped short of holding that a deed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

approach is contrary to the approach in Williams, where the Section 16.069(a) provides: “If a counterclaim or cross claim

Texas Supreme Court analogized the incapacity of a principal arises out of the same transaction or occurrence that is

to the incapacity of a minor. SeeWilliams, 61 S.W. at 116– the basis of an action, a party to the action may file the

17. When a contract is executed on behalf of an incapacitated counterclaim or cross claim even though as a separate action

person—whether by infancy or by mental incompetence— it would be barred by limitation on the date the party's answer

the party in danger of unfair disadvantage in the transaction is required.” In such a case, “[t]he counterclaim or cross claim

is, in fact, the incapacitated party. The party who transacts must be filed not later than the 30th day after the date on which

with the incapacitated party suffers no potential detriment in the party's answer is required.” Id. § 16.069(b).

the bargaining process. The protections offered by our laws

should benefit the incapacitated party by allowing him to [16] [17] [18] However, a party seeking to avail itself of a

disavow the contract upon his return to sufficient capacity. rule in avoidance of a statute of limitations must affirmatively

This benefit extends to the heirs of a deceased principal or the plead its theory of avoidance in its original petition or a

guardian of a permanently incapacitated principal. In such a supplemental petition. TEX.R. CIV. P. 94; Woods v. William

case, the benefitted party can secure the advantage of a good M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988); see

bargain by ratifying the contract or he can relieve himself alsoProctor v. White, 172 S.W.3d 649, 652 (Tex.App.–

of a bad bargain by electing to disavow the agreement. To Eastland 2005, no pet.). Moreover, a party seeking summary

hold such an agreement void as a matter of law would deprive judgment must include in its motion the specific grounds

the disadvantaged party of the benefit of an advantageous on which relief is requested. SeeTEX.R. CIV. P. 166a(c).

contract. An appellate court may not affirm a summary judgment on

grounds not expressly set out in the motion for summary

Furthermore, our conclusion best comports with the need judgment. State Farm Lloyds v. Page, 315 S.W.3d 525, 532

to facilitate the resolution of title disputes in a reasonable (Tex.2010); Stiles v. Resolution Trust Corp., 867 S.W.2d 24,

amount of time. If deeds executed by attorneys-in-fact on 26 (Tex.1993).

behalf of incompetent principals were considered void as a

matter of law, a claimant could seek to invalidate a deed *6 After the interpleader was filed in this case, Cole and

many years after its execution. Such is the case here, where Strack filed their original cross-claim against Appellees on

Appellees have sought to invalidate the deed approximately January 6, 2011. In that cross-claim, they sought a declaration

twenty-five years after its execution. To the contrary, a from the trial court regarding title to the NPRI based on the

claim against a voidable deed is subject to a statute of legal determination of the viability of the deed. They also

limitations. SeeCIV. PRAC. & REM. § 16.051; see alsoFord, asserted the affirmative defense of the four-year statute of

235 S.W.3d at 618. Given these considerations, in addition to limitations. Appellees timely filed a counterclaim in which

the precedent set forth in Williams, we hold that the deed at they requested that the trial court declare the deed void

issue in this case was voidable at the option of the incompetent and confirm their title to the NPRI. We have found no

principal, rather than void as a matter of law. instance in the trial court in which Appellees asserted Section

16.069 as grounds for avoiding Cole and Strack's affirmative

[15] Appellees argue that, even if we hold that the deed at defense of statute of limitations. All of Appellees' claims

issue was voidable, the statute of limitations does not operate rested on the trial court's determination that the deed was

to bar the counterclaims made by Appellees. To support this void. Accordingly, Appellees did not preserve for appeal their

contention, Appellees rely on Section 16.069 of the Texas argument that Section 16.069 precludes the application of the

Civil Practice and Remedies Code. CIV. PRAC. & REM. § statute of limitations.

16.069 (West 2008). Cole and Strack respond that Section

16.069 cannot be used to revive Appellees' claim to disaffirm Having determined that the deed was voidable, rather than

the deed. Cole and Strack also claim that Appellees have void, and that the period of limitations to disaffirm the deed

waived this argument on appeal because Appellees did not has elapsed, we hold that the trial court erred when it entered

specifically plead Section 16.069 as grounds for avoiding summary judgment in favor of Appellees. Cole and Strack's

the affirmative defense of statute of limitations and because first issue on appeal is sustained.

Appellees did not assert Section 16.069 as an alternative

ground in their motion for summary judgment. In their second issue, Cole and Strack essentially ask us to

hold, as a matter of law, that Appellees' claims are barred

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Cole v. McWillie, --- S.W.3d ---- (2015)

2015 WL 535562

by limitations. However, the trial court held that the deed

We reverse the judgment of the trial court, and we remand

was void and did not reach the statute of limitations issue;

to the trial court for proceedings consistent with this opinion,

therefore, we are not able to address it in this appeal. In

including a determination of the effect, if any, of the statute

addition to the reasons previously stated in this opinion,

of limitations upon Appellees' claims.

we overrule Cole and Strack's second issue on appeal for

the reason that the trial court did not rule on the statute of

limitations issue and nothing in relation to its application is

presented for our review.

Footnotes

1 See Act of May 5, 1971, 62nd Leg., R.S., ch. 173, § 3, 1971 Tex. Gen. Laws 967, 971, amended by Act of May 29, 1989, 71st Leg.,

R.S., ch. 404, § 1, 1989 Tex. Gen. Laws 1550, repealed by Act of April 15, 1993, 73rd Leg., R.S., ch. 49, § 2, 1993 Tex. Gen. Laws

102, 112 (current version at TEX. EST. CODE ANN.. §§ 751.002, 751.051 (West 2014)). Although Section 36A has been amended

and repealed, it remains in effect for powers of attorney executed prior to its amendment and repeal.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Crawford v. Morris, 228 S.W.2d 364 (1950)

[3] Estoppel

228 S.W.2d 364 Weight and Sufficiency of Evidence

Court of Civil Appeals of Texas, Eastland.

In action in trespass to try title, evidence was

CRAWFORD et al. insufficient to sustain finding that some devisees

v. of testator did not knowingly receive their part of

purchase price of land belonging to estate which

MORRIS et al.

was sold by executrix of estate, so as to estop

No. 2775. | Feb. 3, 1950. | On them from asserting incapacity of executrix to

Motions for Rehearing March 17, 1950. convey their interests in the land under power of

| Rehearing Denied April 7, 1950. attorney executed by them which was terminated

by death of a principal to power of attorney.

W. E. Morris, and another, sued Catie Daniels Crawford, and

others, in trespass to try title to an interest in land, and for 1 Cases that cite this headnote

other relief. The District Court, Eastland County, George L.

Davenport, J., rendered judgment awarding title to the interest

to plaintiffs and denying plaintiffs all other requested relief,

and defendants appealed and plaintiff cross-assigned error. Attorneys and Law Firms

The Court of Civil Appeals, Grissom, C. J., held that power

*364 T. M. Collie, Eastland, for appellants.

of attorney authorizing executrix of estate of a testator to sell

land belonging to estate was terminated by death of a principal Jack W. Frost, Eastland, for appellees.

to power.

Opinion

Judgment affirmed as reformed.

GRISSOM, Chief Justice.

On May 8, 1942, C. J. Daniels, who owned the 8.6 acres

West Headnotes (3) of land in controversy, died intestate and his father, G.

W. Daniels, inherited one-half of said land and the other

half was inherited by his brother and sisters. There was no

[1] Trespass to Try Title

administration on the estate of C. J. Daniels. In August, 1944,

Weight and Sufficiency

G. W. Daniels died. He left a will in which he devised his

In action in trespass to try title to land, evidence interest in said land to his surviving children, Catie Daniels

established that executrix who conveyed land to Crawford, Mabel U. Daniels, Grace Daniels Shelton, Irvin

plaintiff by general warranty deed conveyed all Van Daniels and Vanita Daniels Tunnell, the brother and

interest in the land that executrix had power to sisters of C. J. Daniels, deceased. Mabel U. Daniels was

convey. appointed independent executrix of G. W. Daniel's estate and

qualified as such. Thereafter, in December, 1944, Mabel U.

Cases that cite this headnote

Daniels executed a general warranty deed to said 8.6 acres

to W. E. Morris. Morris paid the market value for said tract,

[2] Principal and Agent which was $80.00. The deed was signed ‘Mabel U. Daniels

Death of Principal For myself and as administratrix of the estate of C. J. Daniels,

Where power of attorney to sell land belonging deceased.’ Morris executed a deed purporting to convey one-

to estate of testator was executed to executrix half of the minerals in said tract to L. H. McCrea.

of estate jointly and not severally, death of a

On July 29, 1948, Grace Daniels Shelton and Vanita Daniels

principal to power terminated the power.

Tunnell, joined by *365 their husbands, and Catherine

2 Cases that cite this headnote Daniels Crawford and Irvin Van Daniels, executed an oil and

gas lease to Alsabrook and Kemp for which they were paid

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Crawford v. Morris, 228 S.W.2d 364 (1950)

a cash bonus of $5,160.00. W. E. Morris and L. H. McCrea U. Daniels individually and of the estate of G. W. Daniels,

joined said parties in the execution of said lease. deceased; that the deed should be reformed to speak the

truth and convey the interests intended. Plaintiffs alleged that

In August, 1948, Morris and McCrea filed this suit against Morris paid the full agreed consideration to Mabel U. Daniels,

Catie Daniels Crawford, Mabel U. Daniels (Keefer) and individually and as independent executrix of the estate of G.

husband, Vanita Daniels Tunnell and husband, Grace Daniels W. Daniels, and that said estate had received and appropriated

Shelton and husband and Irvin Van Daniels in trespass to try its part of the purchase price.

title to a 4/5ths interest in said 8.6 acre tract. It was apparently

admitted that Mabel U. Daniels' 1/5th interest therein had Plaintiffs further alleged that when Mabel U. Daniels

been conveyed to the plaintiffs by her deed heretofore referred executed the deed to Morris, in December, 1944, she was

to. the attorney in fact for the other defendants, her brother

and sisters, by virtue of a power of attorney exceuted in

Plaintiffs also alleged that defendants executed said oil and 1942, whereby said brother and sisters and her father, G. W.

gas lease and wrongfully received $5,160.00 as a bonus for Daniels, authorized her to sell the land in controversy, which

their execution of said lease; that said bonus was the property they inherited from C. J. Daniels. Plaintiffs allege that it was

of plaintiffs but was received and appropriated by defendants the purpose of Mabel U. Daniels in executing the deed to

and, therefore, plaintiffs were entitled to judgment against convey all of said land and all of the interests therein owned

defendants for said amount. As an alternative plea to that by defendants, and that she executed the same individually

in trespass to try title, plaintiffs alleged that in the event as independent executrix of the estate of G. W. Daniels,

they were denied relief in their action to try title they were deceased, and as attorney in fact for the other defendants and

entitled to judgment against Mabel U. Daniels Keefer because that said deed should be so reformed.

of her execution of the warranty deed to plaintiffs. Plaintiffs

alleged that Mabel U. Daniels was never administratrix of Trial was to the court. The court rendered judgment awarding

the estate of C. J. Daniels but that she conveyed to Morris title to plaintiffs but denying them all other relief. Defendants

the fee simple title to said tract. Plaintiffs alleged they were have appealed. Plaintiffs have cross assigned error to the

entitled to recover damages for loss of said title in the sum refusal of the *366 court to render judgment for the bonus

of $5,240.00, for which they ask judgment against Mabel U. collected by defendants.

Daniels Keefer. Defendants excepted to said petition, among [1] The evidence was sufficient to show that Mabel U.

other things, because of a failure to allege facts showing that Daniels intended to and did convey the interest owned by her

defendants were not entitled to receive the bonus for said oil individually, and the interests she had the power to convey

and gas lease. Defendants answered by pleas of not guilty and as independent executrix of the estate of G. W. Daniels. She

general denial. had qualified in that capacity. The estate owed debts that had

not been paid. She executed a general warranty deed that

On January 19, 1949, plaintiffs filed an amended petition purported to convey all interests in the land and she collected

which contained the same allegations with reference to the market value of same. The face of the instrument showed

trespass to try title and the allegations that the defendants, she intended to convey in some additional capacity than as

except Mabel U. Daniels Keefer and husband, wrongfully an individual. These and other circumstances shown were

received $5,160.00 as a bonus for said lease. They also sufficient to support a conclusion that she intended to and

alleged, as they had in their original petition, the execution did convey all the interest in the land that she had power

of the deed to Morris by Mabel U. Daniels (now Keefer) and to convey. See Hill v. Conrad, 91 Tex. 341, 43 S.W. 789;

that she thereby conveyed to Morris title to said tract; that Morgan et al. v. White et al., Tex.Civ.App., 20 S.W.2d 366;

she was never administratrix of the estate of C. J. Daniels; Arnold v. Southern Pine Lumber Co., 58 Tex.Civ.App. 186,

that she was independent executrix of the estate of G. W. 123 S.W. 1162; McGraw v. Merchants' & Planters' Nat. Bank,

Daniels; that she was qualified and acting in such capacity Tex.Civ.App., 34 S.W.2d 633, 634; Texas Pac. Coal & Oil

when she executed the deed to Morris. Plaintiffs alleged that Co. et al. v. Norton, Tex.Civ.App., 238 S.W. 273, 275, 91

the execution of said deed by Mabel U. Daniels to Morris in A.L.R. 434, 462.

the manner heretofore shown, was the result of a mistake on

her part, or the person who drafted the deed for her signature, [2] Appellants' contention that the power of attorney

or others unknown to plaintiffs, but that it was intended by executed to Mabel U. Daniels by her father and the surviving

the execution of said deed to convey the interest of Mabel brother and sisters of C. J. Daniels was terminated by the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Crawford v. Morris, 228 S.W.2d 364 (1950)

interest. See 31 C.J.S., Estoppel, s 70, page 264; Williams v.

death of one of the principals, to-wit: G. W. Daniels, must

Texas Employers Ins. Ass'n, Tex.Civ.App., 135 S.W.2d 262,

be sustained. Where the power is created by two or more

264, writ ref., and 17 tex.Jur. 138. The evidence ref., and 17

principals jointly and not severally, as here, and one dies the

Tex.Jur. 138. The evidence knowingly received same.

power is thereby terminated. 2 Am. Jur. 53; 2 C.J.S., Agency,

s 86, page 1178; Vol. 1, Restatement of the Law of Agency,

Sec. 123, page 315. See also 23 Words and Phrases, Perm. The judgment is reversed and the cause remanded.

Ed., page 86 and 39 Words and Phrases, Perm. Ed., page 64.

[3] It follows that the portion of the judgment which On Motions for Rehearing.

rests upon a finding of a conveyance under said power of

On February 3, 1950, judgment of the trial court was reversed

attorney cannot be sustained. A finding of a conveyance by

and the cause remanded. Both appellees and appellants have

Mabel U. Daniels of any greater interest than that owned

filed motions for rehearing. All parties have also filed an

by her individually and that which she had power to sell

agreement that the facts were fully developed on all issues

as independent executrix of the estate of G. W. Daniels,

on the former trial and request rendition of a final judgment

deceased, cannot be sustained. Therefore, a judgment

on the record now before this court. In accord with said

awarding plaintiffs any greater interest in the land cannot be

agreement and motions that final judgment be rendered, said

upheld, unless defendants (appellants here) are estopped to

motions for rehearing are to that extent granted and in all other

assert the incapacity of Mabel U. Daniels to convey under said

respects overruled.

power of attorney the interests inherited by her brother and

sisters from C. J. Daniels, deceased. Apparently, the estoppel The judgment of the trial court is reformed so as to award

asserted is based upon the theory that her brother and sisters to appellants a 4/10ths undivided interest in the land in

knowingly received their part of the purchase price of such controversy. In all other respects the judgment is affirmed.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

is presumed that court is familiar with entire

record of case up to and including motion to be

701 S.W.2d 238

considered.

Supreme Court of Texas.

8 Cases that cite this headnote

Ida E. DOWNER, Petitioner,

v.

AQUAMARINE OPERATORS, INC., Respondent. [3] Pretrial Procedure

Striking pleadings

No. C–4141. | Dec. 4, 1985. Pretrial Procedure

| Rehearing Denied Jan. 15, 1986. Dismissal or default judgment

Wife of deceased seaman brought action for damages In refusing to grant new trial and reinstate

against shipowner. Trial court struck shipowner's answer as party's answer which had been struck at prior

discovery abuse sanction and signed interlocutory default hearing on Motion for Sanctions as discovery

judgment as to liability. Jury trial on issue of damages was had sanction, trial court could consider evidence

in the 334th District Court, Harris County, Ken Harrison, J. introduced subsequent to original sanctions

Shipowner appealed. The Court of Appeals, 689 S.W.2d 472, hearing. Vernon's Ann.Texas Rules Civ.Proc.,

reversed judgment of trial court. Wife appealed. The Supreme Rule 215a(c) (Repealed).

Court, Wallace, J., held that: (1) trial court had authority under

33 Cases that cite this headnote

rule regarding failure of party to appear at oral deposition to

strike answer of shipowner; (2) trial court correctly imposed

discovery sanction of striking shipowner's answer; and (3) [4] Appeal and Error

trial court correctly refused to admit evidence of contributory Abuse of discretion

negligence. Test for whether trial court abused its discretion

is whether court acted without reference to any

Judgment of Court of Appeals reversed and judgment of trial guiding rules and principles, i.e., whether the

court affirmed. act was arbitrary or unreasonable, and mere

fact that trial judge may decide matter within

his discretionary authority in different manner

than appellate judge in similar circumstance does

West Headnotes (8)

not demonstrate that an abuse of discretion has

occurred.

[1] Pretrial Procedure

Corporate officers, agents, and employees 3406 Cases that cite this headnote

President of company which was party to action

was a “party” within meaning of Rule 215a(c) [5] Pretrial Procedure

regarding failure of party to appear at oral Striking pleadings

deposition, where president testified he was Pretrial Procedure

in complete charge of all operations of the Dismissal or default judgment

company. Vernon's Ann.Texas Rules Civ.Proc., Trial court correctly imposed discovery sanction

Rule 215a(c) (Repealed). of striking defendant's answer and signing

interlocutory default judgment as to liability

27 Cases that cite this headnote

under Rule 215a(c)(Repealed) regarding failure

of party to appear at oral deposition, where

[2] Pretrial Procedure shipowner voluntarily sent crew to sea rather

Amendment or modification than producing them for depositions as agreed

Trial court's plenary jurisdiction gives it not only on two occasions, attorney for wife of deceased

authority but responsibility to review any pretrial seaman stated shipowner's attorney waited until

order upon proper motion, and in doing so, it one hour past deposition time to advise wife's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985)

attorney that wife's attorney would have to fly

to another city to take depositions on following Opinion

day, and shipowner failed to produce president

WALLACE, Justice.

of shipowner and immediate supervisor of

captain for deposition and did not explain this This is an appeal from a judgment for damages in a suit

failure. Vernon's Ann.Texas Rules Civ.Proc., brought under the Jones Act and under admiralty law. The

Rule 215a(c) (Repealed). trial dealt only with damages because the trial court struck the

defendant's answer as a discovery abuse sanction and signed

17 Cases that cite this headnote

an interlocutory default judgment as to liability. The court

of appeals reversed the trial court judgment, holding that the

[6] Appeal and Error action of *240 that court was an error of law and an abuse of

Sustaining challenge or excusing juror discretion. 689 S.W.2d 472. We reverse the judgment of the

Alleged error of trial court in refusing to strike court of appeals and affirm the judgment of the trial court.

a juror for cause did not result in harm, where

challenged juror was a spare. The issues before us are whether TEX.R.CIV.P. 215a(c), as

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