*1 COMPANY, GUARANTY HOUSTON TITLE Appellant, Appellees. ux., B. FONTENOT et
Enel
No. 13186. Appeals Texas.
Court of Civil
Houston.
Oct. 1960. Filing 1960.
On of Remittitur Oct.
Rehearings Oct. Denied *2 Hudspeth
DeLange, Pitman, C. M. ap- Hudspeth, Mintz, Houston, Sam W. for pellant.
Fountain, Fox, Cox, Joyce Gaines Cox, Houston, Houston, Brantly Harris, counsel, appellees. WERLEIN, Justice. appellees,
This suit was Euel brought Fontenot, B. wife, against appellant, Guaranty Company, Houston Title on owner’s at- insurance recover torney’s expenses they al- fees leged they expend were in de- fending suit, a former boundary Collis Fontenot, appellant’s because breach its covenant in said to defend them the insured in such In a before suit. trial court, jury, judgment without a appellees ap- rendered favor of pellant $1,168.24. in the amount stipulated It was had ac- quired Hyde title to Lot 7 in Block 29 of City Park Main Addition Houston and Collis owned Lot 6 in said block. map recorded shows Lot 7 to abe SO 100 foot lot situated at the northeast corner block, of said and Lot 6 to be a foot lot situated at the northwest corner thereof. The west of Lot is SO length feet is a common east of Lot 6. Immediately following service of the original petition temporary restraining Fontenot, order restraining cyclone ground, lot on the lines constructing a Fontenots “discrepancies area Lot there were no true west along fence rep- survey boundaries a correct Reynolds to attorney they employed show.” The trial con court so found and Collises’ hearing them. At the resent *3 findings cluded. think conclu its and temporary injunction on for a motion Janu- The supported-by sions are first the evidence. 1954, their ary 4, filed the Collises discrepancy alleged asserted in Collis Fontenot petition original discrepancy was the the of 3 feet between by plaintiffs boundary the that the claimed boundary, true which is also the deed the boundary “as established on was the boundary, boundary agreed and the oral usage, ac- ground according long and by Barker, appellees’ predecessor D. in the ceptance same agreement, whether the and insured chain of In that case the lot title. in exact measurement to the conforms Thereafter, court agreed found that description Barker had and not.” block or Fountain, Collis in 1947 between that the employed the firm of their two lots was 3 feet east of the true Cox and Gaines. boundary, but held that the oral judg- The trial court found the final that binding was not because Fontenot, ment in entered Febru- Collis agreed boundary not marked on 20, ary 1956, from, appealed and not decreed court, thus, correctly land. The that held by that Mr. and nothing Mrs. Collis take boundary agreement binding an oral to be suit; their it also ordered them remove by physi must be executed of erection eaves, spout, any drain and struc- other by cal agreed monuments line or encroaching upon tures prop- the Fontenot marking by possession otherwise the line or erty. The adjudged court that Lot 7 owned Corp. use to line. Gulf Oil v. Marathon by the ground Fontenots had on the Co., 1941, 59, Oil 137 Tex. 152 711. S.W.2d full 50 100 foot dimensions called for orally Obviously discrepancy a between an plat official which it was sold and agreed boundary and the true which title was insured. is “discrepancy not a in area or boundaries show,” survey a correct would if the The court in the instant concluded case agreed boundary way is in no marked on that defend the or monumented. evidence The pleadings in Collis case case unless that Boyles, shows S. that a licensed state alleged on their a cause face of action en- J. surveyor, survey land made a of Lots tirely coverage excluded under the September 3, 1953, which was introduced policy. terms of the title insurance The by appellees. survey evidence The shows court further concluded no that there were true is “rights parties line located possession” 1BAoo within the aof foot east of the east wall of the Collis policy exclusion. part garage, ga and that no undisputed testimony The rage extends over such line. garage and its down the Collis the eaves of asserts, 7. spout protruded Appellant however, Lot over the appellant’s survey by Boyles that such en It contention made was not a com “discrepancies (1) plete survey constituted in that croachments failed to show that downspout a correct ga boundaries which sur in area and the eaves the Collis show,” (2) “rights parties policy Lot vey rage would encroached possession” question complete it was and hence not obli does not call for a survey survey only gated under the terms of the title but a correct refers discrepancies Appellees in area and to defend the Collis suit. assert boundaries survey a correct It that since there was no difference between which show. to encroachments foot called for in makes no reference dimensions view, overhanging It is there- their deed title and the eaves. our true ref., Co., ty Tex.Civ.App., 178 S.W.2d Boyles survey is a correct fore, that the Moritz, m.; Maryland Casualty the w. o. survey area boundaries protrusion Tex.Civ.App.1940, although fails show lot if Even writ ref. line. eaves across the of the Collis survey would complete correct or Supreme the Moritz In in which across eaves protrusion shown the unqualifiedly writ, Court refused adjacent to part boundary line following Court statement: made shown a not have garage, it still would strip 3 foot grounds fee to a claim to the “But the fact other length *4 extending damage against the whole those than stat- Moritz a correct against Since liability between Lots 6 and 7. policy; line ed the or latter such survey not shown damages would have others than Moritz for such appellant obligated immaterial; to de- discrepancy, pleaded if were the is the suit, under obligated plaintiffs as it fend the addition to or proceed- policy every or defend suit parties to in connection other right said pleaded any or to ing grounds, on claim other also any part land, grounds against coming or thereof. Moritz within policy. the terms of the Christian v. Appellant contends also Royal Co., 180, Minn. 240 N. Ins. 185 brought about survey have correct would 365.” W. resulted in dis inquiry which have an deciding In findings whether the covery by Collis the of the contention supported trial court are evi the the agreement been had entered oral dence, necessary it is determine whether to into, the not on although monumented petition alleged any Collises’ amended upon is based ground. Such contention grounds appellant recovery was# Moreover, speculation. we are of mere required defend, regardless to whether in the opinion that the “show” used word grounds it contained other which if stand con given be the strained cannot appellant ing alone would not be appellant without suggested by struction that, petition In to defend. their amended violating the settled of law rule alleged Collises for the first time that construed of insurance are terms of liberallyin American favor of the insured. “The Plaintiffs seek to Williams, Tex. Fidelity Casualty v.Co. boundary line remain where has it been 396, Civ.App.1930, 34 ref. error S.W.2d twenty years, established for over think such rule of construction should seeking the Defendants Fontenot are although the terms of be adhered change force line specified Board State policy are to take in so as several more feet of When Insurance Commissioners. land, part as well as of the Plaintiffs’ accepted voluntarily the policy wrote improvements which have been erected adopted prescribed language terms the established and inside for by the Board of Insurance Commissioners. * * * many years suit this brought and the claim Plaintiffs Appellant correctly states that upon the basis as established determining whether the cause of action in according long Fontenot v. was one which it was acceptance usage, agreement, defend, necessary required to it is to look conforms in whether same exact pleadings by Collis and not filed to the lot measurement and block adduced at the trial. proof United description or not. Fidelity Guaranty Co. v. States Baldwin “ * * * Co., 815; Tex.Com.App., 34 S.W.2d line Motor as set Employers petition Stone in this West Texas Casual- forth the boundary
351 strip accepted cuted 3 in favor always line a deed foot which has been Collises, adjoining effected since would have agreed to between the Corp. a conveyance land. v. Gulf ago. Oil owners until a weeks few Co., Tex. Marathon Oil ‡ n i{« n n n 711; S.W.2d Great Plains & Gas Co. Oil boundary line forth “The as set Co., Foundation Oil Tex. accepted and petition this been the has 452; Fuentes, Tex.Civ. S.W.2d Boothe v. adjoining agreed between the said App., 754; Korn Farmer S.W.2d (25) properties twentyrfive over for fuehrer, Tex.Civ.App., years con- in the and has been followed improvements struction of it is true that amended While properties.” respective (Emphasis said petition in the asserts certain Collis case supplied.) grounds recovery fall within the policy’s exceptions, bound it also asserts a temporary in- Upon hearing’ for ary dispute growing out of junction filing of-the and the by appellees’ predecessor made in title. The (cid:127) petition first apparent it became *5 agree pleading does not state whether such claiming time that were that the Collises oral, ment writing was in or or whether boundary 6 had been between Lots and 7 was or not marked was on changed by agreement an between them oral the ground. enough, It does allege how appellees’ predecessor and in title. ever, appellant put upon to have notice that agreement was was that the line the discrepancy might growing out be one and way garage half between Collises’ of an agree unrecorded written boundary garage which Lot Barker’s on was ment or growing one of an unmonu- out Collis that if his deed not cover testified did agreement mented oral which would not east, 3 garage feet from his he by be disclosed a survey. Having correct deed claiming it in addition to what put upon thus been notice, think it we court, present called in for. The upon appellant devolved to make an in boundary agree- found such that there was vestigation to determine whether suit land; ment it was not but marked on the which one it was to defend. appellees that had no constructive actual or thereof; prove notice that Collis failed to that the Appellant also contends waiver possession property any adverse in dis- it signed by the Fontenots relieved pute requisite periods provided for the the Collis suit. Such obligation to defend law; that true and location of the as follows: waiver reads as ground line was located on the inspection by you waive hereby “We established the Fontenots. accept your policy property and such rights parties in subject to the of the appellant Reynolds advised they possession and those under whom Mr. injunction hearing: temporary upon hold, possession are any such if now pleadings wherein he “Collis filed premises upon you have which the claim asserted policy, it issued such and take Block and Lot 6 in in Block inspect Lot 7 premises such ourselves Addition, had been Main Hyde Park possession obtain thereof from the an be changed altered and occupant.” present predecessor in Fontenot’s tween Collis appellant’s as Appellant was thus advised It contention that title.” being inspection appellees which made in the amended waived contention agreement, binding, downspout if would have revealed pleading. Such overhung approximately effect as if the Fon- Lot 7 the same would have inches Barker, overhanging protruded eaves which predecessor, D. had exe- tenot’s should be felt discussion oral some inches, also disclosed some give in order to Title Com- foot made boundary agreement covering the prepare pany opportunity an a de- speculative highly strip. We think it in said given fense suit and be inspection which author- conjectural whether ity proper to defend the same if such is result- appellees have was waived necessary boundary agree- under the terms of the discovery the oral ed in policy.” court, finder, was as fact ment. The trial as liberty reject such contention at Nearly replied month later judgment evidently entering did in to the letter Reynolds, of Mr. stating: opinion that appellees. are also of the protrusions given “We call attention such could at most issued subject pre- to any discrepancies, which would only easement conflicts or shortages removing from area vent servient estate or lines or any not amount encroachments certainly them. or They did overlapping of improvements possession the 3 foot correct survey would show. discrepancy strip constituting the bound- hanging it did not lant
mowed. Even if the waiver relieved
3 foot strip the
ary
Actually
the
policy
under
strip,
eaves the
defending the suit
relieve
to defend the suit
taking
the oral
entire
it
care of
were in
from
length
boundary agreement.
distance
all liability
it and
possession
involving
to the over-
of the com-
keeping
garage,
appel-
under
the
matter
present
work with
ment in form
*6
to do without
ed
“Our client
they
[*]
so
circumstances.
will execute a non-waiver
you
its
[*]
acceptable
present
recognizes
cost to your clients
[*]
suit,
form and
to us.”
If
n
no-
we will be
you
liability
[*]
desire us to
under
provid
willing
in this
agree
[*]
mon boundary line.
appellant recognized
reply,
In its
Appellant next asserts that
is no
there
the
although it
of
was notified
liability
no
appellant
that
evidence
given
was
author-
petition
the
and of
contents of the
ity to defend
provided
the Collis suit as
boundary agreement between
claim of the
in
policy
the title
or that
it
to
refused
appellees’ predecessors in
and
title.
Collis
defend such suit.
ap-
appellant
offer
to work with
The
of
counsel, provided
pellees’
a non-waiver
Appellees
ap-
in effect concede that the
acceptable
agreement
in form
to it was
pellant
duty
was under no
to defend the
executed, was not an offer to defend. The
prior
receipt
cause
action
of
to
of the
obligation
clearly
“to defend” was
intended
January
letter of
addressed to
to
that
title company
mean
re
would
by Attorney Reynolds, stating
part:
in
expense
insureds
duty
lieve the
and
court,
having
counsel in
and that such
“
* *
*
attorney
undersigned
company
responsibility
would assume the
Fontenot
Mr.
represented
and burden of
An
the defense.
merely
offer
injunction. Up-
temporary
hearing of
help
to
was in effect a
defend,
refusal
to
hearing,
filed amend-
Collis
on this
especially in view of the statement
that
he asserted the
pleadings wherein
ed
appellant
recognized no liability in the
* * *
that
claim
matter under the circumstances.
changed
been altered
an
had
between
Fonte-
agreement
our
that
It is
view
the statement
* * *
predecessors in title
not’s
company recognized
liability
that
no
together
“In view of this situation
matter
becomes
in the
the statement of
apparent
Company
why
that
Title
has
reasons
it was not
liable consti
interest
in
some
this matter and it is
tuted an
breach of
anticipatory
the con-
ney’s
fees
that
amount
further
such
and excused
tract
Pollack,
grossly
is
excessive in
un-
view
authority. Pollack
tender of
disputed
292; Amer-
evidence
the fair market
Tex.Com.App.1932,46 S.W.2d
Williams, value of the 3 foot strip of land involved
Casualty
Fidelity
Co.
ican
only
error ref.
Tex.Civ.App.,
$300.
appellant
Moreover,
it will be noted
opinion
We are of the
that the
counsel,
appellees’
to work with
in its offer
sum of
allowed,
included in the fee
$75
in the
contained
condition not
attached a
appears
be
charged
to
a retainer
agree-
namely
policy,
that a non-waiver
Reynolds
collected
prior
Mr.
company
acceptable
to the
ment
form
appellant
the time
was notified
question
The
be furnished.
lawsuit,
is
charge
matter
law not a
defend,
authority
merely
called
required
pay.
should be
agree-
provide
non-waiver
did not
for a
We
opinion
are further of the
that the re
Casualty
Fidelity
ment.
In American
maining amount of the fee in the
sum
Williams, supra,
in-
liability
Co. v.
$900
excessive
sum
$300.
surance
an unconditional
included
disagree with appellant, however, that the
obligation to defend the insured. Suit was
fee should be reduced to
It
our
$300.
against the
com-
instituted
insured. The
view
a reasonable fee would be $600.
pany refused to
defend the suit unless
Southland
Ins.
Norton,
Life
Tex.
sign
agreement.
insured
non-waiver
Com.App., 5
767;
S.W.2d
Tex.Civ.App.,
Upon
sign
refusal of the insured to
court held non-waiver so-called the nature of litigation, the interests attempt company anwas stake, at the capacity and fitness of the performance obliga- avoid of a material attorneys required for the work, the serv upon it, tion which rested and that in- ices labor by them, rendered the amount justified refusing sign sured time preparation trial of *7 instrument, refusing and that in to defend and the benefit by appellees derived action company had breached its from litigation especially in preser contract. The court stated: vation of the integrity of their home and of a normal sized corner lot. International rule of law “It fundamental is a G. N. R. Clark, 1891, v.Co. Tex. that, re- party when one of contracts 631; S.W. Hatch, Life Texas Ins. pudiates refuses Tex.Civ.App., 802, ref., o. m. w. obligations, material bound be repudia- may accept party other days appellees within will If fifteen from required to not as final and is tion opinion filing this file a remittitur of obligations imposed regard further $375, of the judgment trial court will thereby, [citing him authorities] accordingly, be reformed and as reformed Upon company of the refusal affirmed; will otherwise the judgment be defend, assume was forced to Abbott court will trial be reversed of the attorneys responsibility employ cause remanded. him, represent and was entitled company expenses his recover On of Remittitur Filing necessarily incurred, together 6, 1960, October we indicated On judg- costs interest on of suit opinion appellees that if writing ment.” remittitur file a within fifteen $375 date, days Appellant finally complains judgment court of such reformed, be re- awarding erred trial court would as attor- $975 would-be.affirmed; otherwise formed re- would be court of the trial
judgment Appellees remanded. and the cause
versed remittitur of suggested $375. filed the date, judg- this
Accordingly, as of by de- the trial reformed
ment of court judg- from the the amount
ducting $375 and, appellees, as so
ment recovered
reformed, is affirmed. present of the costs
One-third appellees, against
appeal taxed will be appellant, Houston
two-thirds Guaranty Company.
Title rehearing may be filed
Motion for days fifteen this party within after
either
date. ASSOCIA
CAMDEN FIRE INSURANCE TION, Appellant, VERA,
Raymond Appellee. D.
No. 6973. Appeals Civil Texas.
Court
Amarillo.
Sept. 26, 1960.
Rehearing Denied Oct. Adkins, Fullingim Hankins,
Simpson, Amarillo, appellant. for Hunter, Fike, Dalhart, appellee. DENTON, Chief Justice. Vera, appellee,
Raymond brought D. suit appellant,. Camden Fire Insurance Association, Corporation Motor Insurance