Hutcherson v. M & G Land Development Corp.

• Decision Date: 06 June 1979
• Docket Number: No. 16056,16056
• Citation: 590 S.W.2d 520
• Parties: Lucille Carson HUTCHERSON, Appellant, v. M & G LAND DEVELOPMENT CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 520

590 S.W.2d 520

Lucille Carson HUTCHERSON, Appellant, v. M & G LAND DEVELOPMENT CORPORATION, Appellee.

No. 16056.

Court of Civil Appeals of Texas, San Antonio.

June 6, 1979.

David R. White, Jr., White & White, Uvalde, for appellant.

R. Emmett Harris, Harris & Vaughan, Uvalde, for appellee.

OPINION

KLINGEMAN, Justice.

This is a suit by M & G Land Development Corporation against Lucille Carson Hutcherson for a permanent injunction to prohibit Mrs. Hutcherson's interference in any way with M & G's use of a portion of the Old Dry Frio County Roadway where it passes through her property. Mrs. Hutcherson defensively pleaded statutory abandonment under Article 6703a, Texas Revised Civil Statutes, as well as common law abandonment. Mrs. Hutcherson brings this appeal from an order of the trial court granting a permanent injunction in favor of M & G.

The initial question presented is whether the court reporter's notes of testimony adduced by appellee at the previous hearing on the temporary injunction were admissible at the subsequent hearing on the permanent injunction. ¹

The record here reveals that appellee was initially granted a temporary restraining order without notice by the trial court, and subsequently a hearing was had on the temporary injunction at which time some testimony was heard. At the hearing on the permanent injunction appellee did not call any witness or introduce any new evidence, but over the objection of appellant, appellee was allowed to introduce into evidence the court reporter's notes of the hearing on the temporary injunction. Appellee offered no excuse whatsoever for not putting on any evidence, except for his statement that there had been no change in conditions between the time of the hearing on the temporary injunction and the hearing on the permanent injunction, and that he did not see the necessity for putting on any further proof. At trial he relied wholly on the former testimony at the hearing on the temporary injunction.

Under the record the trial court erred in allowing the introduction into evidence of testimony adduced at the hearing on the temporary injunction. We also hold that the admission of this evidence was harmful error under the provisions of Rule 434 of the Texas Rules of Civil Procedure. Without such evidence there is nothing in the record before us to support the granting of a permanent injunction in favor of appellee. The trial court abused its discretion in permitting the introduction of this testimony into evidence and in granting the permanent injunction under the admissible evidence in the record.

The correct rule is set forth in Hall v. White, as follows:

Former testimony is not admissible if a witness is available at the subsequent trial. The party offering the former testimony must therefore prove unavailability, which means in Texas 'that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.' ²

525 S.W.2d 860, 862 (Tex.1975). No attempt was made here to prove unavailability of appellee's witnesses under any of the instances set forth in Hall v. White, and none of the stated conditions supporting the exception to the general rule precluding hearsay testimony from admission is claimed to exist in the case before us. The only explanation offered by appellee in his brief is that this is an equitable matter and the court has great latitude and broad discretion in ruling on...