*1 fraudulently was that it de- thereto or probate is a correct copy filed for person.” original. stroyed by some other copy I of accurate in will. independent executor named in the rule announced Appellee contends original I not produce reason The did no Bailey inapplicable is because there is it. I don’t not find is because I could will testimony any kind that the will direct I located. original will is know where the possession in the of the deceased. was ever original inquiries about have made disagree. We deposit has box been safety his circum- We hold admissible facts and just produce it. I I not but could checked conclusively presump- stances show produce it. To been able to have not Bailey, supra, set Bailey tion forth in v. copy an knowledge this is my best proponent established and the introduced original. will The copy exact probative no evidence force to rebut brother, to estate his his leaves Vs presumption. Black; Black; brother, to a F. B. ½ Frank and n to Erma wife, Black, The is his former reversed Stegall. appellant. is for the Jo Adele rendered and the mother Mrs. that he was nam- Black informed me
Mr. and asked me executor in his will will. I do remember to read the
me it at his home at the bank
whether read I work that he asked me to
where gave me physically will. Mr. Black me will and read He informed I it. prepared the Mr. Norman Arnett
that “lawyer’s The will was in a will for him. U. dba S. LIMITED CAPE CONROE finding I was in blue back”. unsuccessful Company, Development et Land will. al., Appellants, rule applicable parties agree on the v. Bailey, Bailey v. in this case and cite SPECHT, Mary Appellee. Edith (Tex.Civ.App. 171 S.W.2d — Amarillo writ), the rule is an wherein 1179. No. as follows: nounced Appeals of of Civil Court in this “The law is well established (14th Dist.). Houston State, jurisdic- every as well as in almost June 1975. country, proceeding in this that tion in a will, it probate where to shown Rehearing July Denied decedent executed it was for, it seen or accounted was in last when place he possession or in a to which
his ready access after his death it but found, arises presumption not be
can destroyed life- the testator his revoking with the it.
time intention of presumption it was revoked place positive stands testator effect and he who seeks
proof the will the burden assumes
establish
overcoming presumption by produc- contrary and circumstances
ing facts *2 Swan, White,
Michael K. Reynolds, Allen Cook, Houston, & appellant. for Leikam, Houston, William ap- Dean for pellee.
MAJORITY OPINION TUNES, Chief Justice.
This is a case Mary Specht, wherein Edith purchaser as the Cape of two lots from Limited, doing Conroe business as U.S. Development Land Co. and Ves-Tex Land Inc., Development, sellers, sued those Joe Reynolds, partner a limited Cape Conroe Limited, Buvens, and John L. the trustee in securihg a deed of trust purchase money notes, alleged Decep- violations of the tive Practices-Consumer Protection Act, Ann., Tex.Bus. & Chapter Comm.Code 17, Subchapter E, V.T.C.A. The case was jury. tried to the court without a 12, 1972, On October defendants entered into a written contract wherein agreed buy and defend- agreed ants Cape to sell two lots in Conroe Limited, defendants, doing subdivision. Cape That contract contained the Conroe streets, paved Development sellers’ that all Co. business U.S. Land Inc., underground utilities, Development, and certain recrea- Ves-Tex Land $6,819.55 percent. De- completed tional facilities would be at six with interest 31, 1973, effect, buyer purchase cember or the judgment, in rescinds lots, refunded all paid plus monies ten restoring *3 Later, liability for request, money paid, relieving interest. at the plaintiff’s her of price, that contract and re- replaced by purchase two other of the the balance contracts, relating storing each the two to the the two to one of defendants title to lots. The new specifically question. The contracts recite trial court rendered lots they replace plaintiff nothing that the original contract take judgment defendants, Reynolds October 12. Those bear the Buvens. contracts also from 12,1972, they appealed. date October but were actual- and Ves-Tex have Cape Conroe ly executed at a later con- date. The new appellants’ principal contention on tracts did not have in them the above men- appeal judgment is that the rendered their tioned warranty or as to the supported by plain- the trial court is not completion utilities, date for the streets and pleadings. That contention is sus- tiff’s 2, 1973, recreational January facilities. On tained. deeds, notes and deeds were exe- of trust pursuant cuted to these contracts. proceeded Plaintiff origi- to trial on her petition. There was nal establishing opening evidence the fact words of that appellants, by pleading advertising read as follows: media and orally, represented utilities, streets This lawsuit arises out of advertise- and recreational facilities would be com- property, ment and sale of real concern- pleted December 31, They 17, general Chapter provisions of completed. 31, 1973, so On December Sub-Chapter E, Business and Commerce $6,199.55 paid toward the Code otherwise known as the price purchase of the lots. She demanded DECEPTIVE TRADE PRACTICES- of the defendants the return her of that CONSUMER PROTECTION ACT sum, together with ten interest. (hereinafter DTP-CPA). called The defendants comply refused to with her body listed petition plaintiff In the of her showed, demand. The evidence found, specific on which however, seven acts of defendants represen- that these alleged of action was based and her cause were all May tations made before given them a violation of a date of Deceptive the effective Trade Deceptive of the Act. section The trial Practices court concluded as prayer her she asked that she In Deceptive of law that Act. a matter Trade judgment triple damages for “. recover Practices Act did not repre- provisions Deceptive to the of the pursuant promises sentations and before made Practices-Consumer Protection Act Trade date and judg- effective declined to render asked that she recover rea- .” She . for ment for the measure of attorney’s pursuant fees “. . . damages provided sonable at Section Deceptive is, provisions 17.50—that three times the actual dam- Protection Act Practices-Consumer together ages court costs and attor- .” She asked for . . fur- . “. concluded, ney’s fees. It then as a matter “ relief, provided Deceptive law, for in ther . . . the pleadings Protection Act Trade Practices-Consumer Plaintiff, whole, support taken as a a cause post judgment .” asked for . She upon in favor of action of Plaintiff based gener- prayer and had usual interest theory.” thereupon He breach of contract al relief. plaintiff against rendered language plaintiff’s contract,
No pleadings waiving any objection this as to states that a trying contract arose between her this lawsuit on other theories. In and the defendants asserting it, and that she is pleadings, his as I understand he stat- of action either going cause under that contract strictly ed he Decep- under the During for its breach. the oral submis- tive Trade Practice Act. heSo have case, sion of remedies, counsel for some other I don’t think his identify asked to contract pleadings support that and I don’t want the trial court’s could be sus- here by try to sit consent and it on some issue, tained. He stated that it original was the other so for the purpose limited sale, written contract of dated act, October whether it is under this I have no guar- objection in which there was the written to it. utilities, completion antee as to the of At another place in the record defendants’ streets and recreational con- facilities. This *4 said, Honor, may counsel “Your we have a spite tention made in of the fact that running objection to all documentation and only plaintiff contracts offered in evi- testimony occurring prior May to 1973?” dence were those subsequently executed answered, “Yes, The court you may have ones, lots, covering one of the two objection.” your omitting guarantee, the written and recit- language Neither the plaintiff’s plead- in of each that “replaces” the contract ings, any nor issues by justi- tried of consent October 1972. This contention was fied the court’s rendition judgment of a spite also made in of plain- the fact that damages of, for the counsel, upon, breach or a con- objecting tiff’s in question by to a judgment tract nor a rescinding any con- defendants on cross-examination of the For tract. that reason the trial court’s plaintiff, “There allegation said: is no made judgment erroneously rendered. relying that she was on a written contract making any this kind of of sort.” The trial court held as a matter of law representations, “. . . all adver- judgment “The of the court shall tisements, fact, guaranties statements of or pleadings conform to the . . . .” Tex- made by any warranties Defendants . as Rules of Civil Procedure 301. In this prior made to October 1972.” The trial case the concluding erred in give trial court declined Deceptive to plaintiff’s pleadings entitled her to re- Act a retroactive effect and damages cover for breach of contract or to held, law, as a plaintiff matter of judgment rescinding a sale of property not entitled to pro- under its question. in In Oil Field Haulers Ass’n v. By cross-point plaintiff visions. asserts Commission, Railroad 381 191 S.W.2d trial court erred in holding. this (Tex.Sup.1964), the Court said: “That a cross-point is That overruled. plaintiff may judg- not sustain a favorable unpleaded action, ment on an cause of in place, In the plaintiff first is not consent, the absence of trial gener- is the triple entitled maintain an action for al rule . . damages attorney’s fees under the De attorney specifically The defendants’ here ceptive Trade Practices Act. Section 17.50 objection recited his to trial under any con- authorizing is the section such theory recovery. tract When relief. It is entitled “Relief for Consum offered evidence the two contracts which The opening ers.” language states that they replaced the recited contract of consumer maintain an action if he “[a] 12, 1973, counsel October for defendants adversely by any has been affected said: following: . . . .” There then a follows I want to state for the conduct, record and make it including statement actionable not, clear that I am acts of which objecting complains, this
219 subchapter only to granted, practices acts or provisions for the relief to be occurring after are au- effective date of referable to an action all of which Thus, subchapter . . . .” applica brought by thorized to “consumer.” practices the Act to those tion of is not “consumer” within that occurred 17.45 of defendants before the effec the statute. meaning of Section Act giving It in- tive date would be it a entitled the Act is “Definitions.” application ex contrary retroactive to its language: cludes this language. appellee cites, press sup subchapter: in this As used port of the contentions made her under chattels (1) tangible means “Goods” Chevrolet, case of Crawford cross-point, bought use. (Tex.Civ McLarty, S.W.2d Inc. v. labor, work, means (2) “Services” 1974, writ). .App.—Amarillo That case for other or services than commercial support appellee’s does not contentions use, including services furnished business distinguishable factually from the case at repair in connection the sale or prac McLarty, deceptive trade bar. In goods. tices for a consumer were the misrepresentation by was based authority the defendant of the sales (4) means an individual “Consumer” manager to execute a contract bind of sale acquires by purchase or who seeks ing on the defendant and the coercion lease, any goods or services. *5 plaintiff-consumer the defendant of real- purchaser The sues as the signing of a into more con burdensome therefore, services, is, ty, goods not and than that tract already been not a consumer entitled to maintain the 9, Both signed. July acts were done on provided by action Section 17.50. the Deceptive 1973—after say Act had become effective. This is not certain acts listed deceptive practices 17.46as Section trade appellee that, argues although are not unlawful when done in connection promises as completion of the sales. That makes real estate section in the facilities subdivision or the alterna practices unlawful when done “in listed money plus of her tive refund ten any the conduct trade or commerce.” interest were made before the effec Act’s “com- Section 17.45 defines “trade” and date, their tive breach until did not occur including proper- the sale of real merce” rights after that date. substantive and 17.50, this suit ty. under which But Section parties of the agreement duties under the brought, does afford them, if all, between were enforceable at which she sued because the relief for she those under the law as it time existed at the by consumer as defined not a agreement subsequent was made. A therefore, and, bring not entitled to ac- an changes law that rights those duties and 17.50, under Section tion which is limited I, violate Article of the Section 16 language to consumers. Constitution, Texas Vernon’s Ann.St. Gowdy, is the tri Turbeville v. 272 (Tex.Civ. another reason that S.W. 559 There 1925, Worth properly Deceptive App.—Fort writ). held that al In State Co., & Refining 40, Oil Practices Act v. Humble 141 Tex. did not relate to the 707, above, 708 (Tex.Sup.1943), cause of 169 S.W.2d action. As plaintiff’s stated said, State, “It the law court found that Court of this the trial statements generally, that, the law warranties made the defendants the absence 1973, reason, 21, any special May before indication or a statute all made applied retrospectively, will not be even date the Act. 17.63 of effective Section impediment when there is no provisions Act states constitutional “[t]he 220
against it.” See also Government Person AUSTIN, Appellant, CITY OF Wear, 454,
nel Mut. Life Ins. Co. v. 151 Tex. (Tex.Sup.1952); Hockley 251 S.W.2d525 Co. v. Co., Seed & Delint. v. Inv. Southwestern Appellees. al., et Due Tu JOHNSON
appears appellee tried her case on wrong theory that, under the facts proved pleaded if she might theories, other
tried her case We, therefore, justly prevail.
be able to to the trial court that
reverse and remand of the
portion judgment awarding the recovery against Cape Conroe
Limited, doing business as U.S. Land Devel Yes-Tex,
opment Co. and Inc. National Cain,
Resort Communities v. Tex.Sup. (May 1975);
Ct.J. Morrow v. Shot
well, 538 (Tex.Sup.1972). 477 S.W.2d No is made
complaint portion as to that
judgment in favor of Reynolds and Buvens. trial court’s as to them is
affirmed. part part
Affirmed in and in reversed
and remanded. BROWN, (concurring).
CURTISS Justice
I concur in the Having result reached.
correctly held appellee is not a “con-
sumer,” as respect defined the Act with necessity
to the relief sought, I see no question
to reach the as to whether otherwise or as to its constitu-
tionality applied. if so my I reserve views questions these appropriate
as to for an
case.