Fitz v. Toungate
| Decision Date | 04 October 1967 |
| Docket Number | No. 11533,11533 |
| Citation | 419 S.W.2d 708 |
| Court | Texas Court of Appeals |
| Parties | Oma FITZ, Executrix of the Estate of Byron Buford Fitz, Jr., Deceased, Appellant, v. A. F. TOUNGATE et ux., Appellees. . Austin |
Evans & Marshall, Louis E. Marshall, San Antonio, for appellant.
William H. Crenshaw, Kingsland, for appellees.
This appeal by writ of error is brought by Oma Fitz, executrix of the estate of Byron Buford Fitz, Jr., deceased, 1 from a default judgment rendered on August 2, 1966, wherein A. F. Toungate and wife, appellees, recovered judgment against C. Shimp and wife, Evelyn V. Shimp, B. B. Fitz and Caravan Homes, Inc., defendants, ordering them to deliver to appellees a valid certificate of title of the State of Texas to a Spartan House Trailer, model mobile mansion, serial number 9500320397, purchased by appellees from the parties named, for $200.00 damages and for $1,000.00, attorney's fees.
Since a default judgment admits only facts which are well pleaded, we will analyze the pleadings of appellee to determine whether they will sustain the judgment rendered. Kothmann v. Lett, 248 S.W.2d 302, Tex.Civ.App., Austin, writ ref. n.r.e.
Appellees alleged that they purchased and fully paid for a trailer house, above described from the defendants, above named; that just prior to the consummation of such sale, appellees were told by Mr. and Mrs. Shimp that they had bought the trailer from Mrs Shimp's mother and father; that the trailer was delivered to appellees by Mr. Shimp's father and another man; that appellees asked for the title papers to the trailer and were informed by Mr. Shimp's father that Mr. C. Shimp would mail or deliver them in a few days; that such title papers were never delivered to them, although such delivery was often requested. Appellees also alleged that they employed 'an attorney to contact the defendants, C. Shimp and Evelyn V. Shimp, in an effort to obtain the title papers to said trailer; that upon doing so, defendant Evelyn V. Shimp advised said attorney that the trailer in question was not owned by them or by the corporation but was owned by defendant B. B. Fitz; that he had been paid by them the proceeds of the sale from plaintiffs and that he had paid the trailer off with a financing company located in Dallas, Texas, and that the title papers would have to be obtained from him; defendant Evelyn V. Shimp further advised said attorney that the business was a partnership at the time of the sale to said plaintiffs and that the partnership had since been dissolved between defendants C. Shimp and Evelyn V. Shimp and defendant B. B. Fitz; that said trailer was never a part of said partnership; that they, C. Shimp and Evelyn V. Shimp, had endeavored to get said B. B. Fitz to deliver the title papers to said trailer to them but that he had failed and refused to do so; that they and defendant B. B. Fitz were no longer in any way associated in business.'
Appellees pleaded that the checks given in payment of the trailer were payable to and endorsed by Caravan Homes, Inc., that the incorporators of Caravan Homes, Inc. were C. Shimp, Evelyn Shimp and B. B. Fitz, and that corporation was extant. Appellees also pleaded that the failure of defendants to deliver such title papers was willful, malicious, wanton and intentional and that they...
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Petco Animal Supplies, Inc. v. Schuster
...legal issue of whether the various elements of the damage award are recoverable under Texas law. See Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.-Austin 1967, writ ref'd n.r.e.); cf. City of Tyler v. Likes, 962 S.W.2d 489 (Tex.1997) (affirming summary judgment and holding that Texas law d......
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Berry Property Management, Inc. v. Bliskey, 13-91-658-CV
...be considered by a jury when determining what amount to award a plaintiff as exemplary damages. See Fitz v. Toungate, 419 S.W.2d 708, 710 (Tex.Civ.App.--Austin 1967, writ ref'd n.r.e.); Allison v. Simmons, 306 S.W.2d 206, 211 (Tex.Civ.App.--Waco 1957, writ ref'd In order to show the reasona......
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Stoner v. Thompson
...not apply to a post-answer default judgment. A default judgment admits facts which are properly alleged. Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.1967, writ ref'd n. r. e.); 4 McDonald, Texas Civil Practice 119 § 17.23.3 (1971). While a petition which serves as the basis for a default ......
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Fears v. Mechanical & Indus. Technicians, Inc.
...way and the default judgment admits facts which are properly alleged. Stoner v. Thompson, supra at 684; Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App.--Austin 1967, writ ref'd n.r.e.). Appellant contends that the court erred in failing to have a record made of evidence given at the default ......