text:
    Victor E. RIMES et al., Appellants, v. CLUB CORPORATION OF AMERICA, Appellee.
    No. 19011.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 16, 1976.
    Rehearing Denied Oct. 14, 1976.

      Harry W. Margolis, Margolis, Staffin & Schendle, Dallas, for appellants.
    E. Lee Haag, III, Smith, Smith, Dunlap & Canterbury, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Victor E. Rimes, Steve Rodgers, and Club Development, Inc. appeal from a temporary injunction which enjoins them from operating a business in violation of restrictive covenants contained in previous employment contracts between Rimes and Rodgers, as employees, and Club Corporation of America, Inc., (hereinafter called C.C.A.), as employer. The principal grounds urged by appellants as the basis for their appeal are that: (1) The trial court’s injunction order creates a period of time for restraining competition which is greater than the two-year period provided in the respective restrictive covenant; and (2) the trial court erred in enforcing the restrictive covenants which are an illegal restraint of trade under Texas anti-trust laws and which do not fall within any of the exceptions concerning protectable interests or confidential information. We hold that the trial court erred in issuing an injunctive order which expanded the time period restricting competition beyond the time expressly contained in the employment contracts and in finding certain information was confidential and, therefore, was within C.C.A.⅛ protectable interests. Accordingly, we reverse the trial court’s judgment and order the temporary injunction dissolved.

C.C.A. is a Texas corporation which owns and also manages country clubs. On separate occasions Victor E. Rimes and Steve Rodgers executed employment contracts to perform services for C.C.A. Each of the employment contracts contains a restrictive covenant prohibiting the employee from engaging in competition with C.C.A. for a period of two years following termination for any reason of the employment contracts. Rodgers terminated his employment with C.C.A. in June 1973. In January 1972, Rimes was transferred from C.C.A. in Dallas, Texas, to work for a wholly-owned subsidiary, Kingwood Country Club, Inc., in Houston, Texas. On May 15, 1974, Rimes terminated his employment with Kingwood. After leaving his employment with King-wood, Rimes worked for a local developer and was given the task of creating and running racquet clubs to be included in real estate developments throughout the country. In September 1974, a corporation called Club Development, Inc. (hereinafter called C.D.I.) was formed for this purpose and Rimes became a minority stockholder. In May 1975, Rimes became the sole stockholder of C.D.I. by purchasing other stockholders’ interests. Rimes, through C.D.I., attempted to locate clubs in need of management services in the summer of 1975. Rodgers joined C.D.I. in September 1975, approximately two years and two months following his final termination with C.C.A. C.D.I. consummated its first management contract in October 1975, and commenced its management duties on November 1, 1975. Prior to the time that C.D.I. was created, C.C.A. was the only organization in the entire United States which furnished country club management services to that particular industry.

On March 10, 1976, C.C.A. filed this suit in the district court seeking injunctive relief to enforce the noncompetitive provisions of the employment contracts. Following a hearing on April 21, 1976, the trial court found: (1) Rimes did form a corporation for the purpose of entering into competitive business with C.C.A.; (2) this action was in violation of the employment agreement in that the corporation did actively seek and obtain business relationships with two or more country clubs in direct competition with C.C.A.; and (3) Rimes, Rodgers, and Club Development, Inc. are unfairly competing with C.C.A. in that confidential information was acquired by Rimes and Rodgers while in the employment of C.C.A. and that they did use such information in competition with C.C.A. in violation of the employment agreement. Accordingly, the trial court ordered a writ of injunction to issue pending the final hearing on the merits. Thereafter, the trial court granted a supersedeas bond pursuant to Tex.R.Civ.P. 364(e) thereby suspending the injunction pending appeal.

Our supreme court has laid down basic rules to govern our judicial review of the trial court’s order granting a temporary injunction. The paramount issue on appeal is whether the trial court clearly abused its discretion in issuing the writ. Transport Co. of Texas v. Robertson Transport Co., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). The temporary injunction will not be issued unless the applicant shows a probable right to a permanent injunction on the final trial of the merits. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968). The applicant for such injunctive relief must demonstrate his right to preserve the status quo of the subject matter of the litigation pending a final trial of the case on its merits. Transport Co. of Texas v. Robertson Transport Co., supra. The party seeking the injunction must show that he will suffer irreparable injury if the injunction is not granted since there is no adequate remedy at law. Gulf Oil Corp. v. Walton, 317 S.W.2d 260, 263 (Tex.Civ.App.—El Paso 1958, no writ).

In their primary points on appeal, appellants contend that the trial court abused its discretion by granting injunctive relief which extended the two-year term of the restrictive covenants contained in the agreements between the parties. As to appellant Rodgers, the two-year period provided in the agreement between C.C.A. and Rodgers terminated in June 1975 or approximately nine months prior to the filing of the suit. Concerning appellant Rimes the situation is more complicated. It is undisputed that Rimes discontinued his employment with C.C.A. in Dallas in January 1972, and, therefore, the two-year period of noncompliance, if computed from that date, expired in January 1974. However, Rimes went to Houston and was employed by Kingwood Country Club, Inc., which was shown to be a subsidiary of C.C.A. Rimes did not terminate his employment with Kingwood until May 15, 1974. Dealing with a question of who would be the “employer” Rimes’s contract with C.C.A. provided:

The word “employer” as used in this contract shall include Club Corporation of America ... or any company that said Club Corporation of America may designate. It is understood and agreed that Club Corporation of America may designate any company of any kind affiliated with or owned, operated, managed or supervised by said Club Corporation of America .

Rimes argues that, under the terms of the contract, C.C.A. did have the right to designate Kingwood as an employer but that a designation never took place. He relies upon Wright Hydraulics, Inc. v. Womack Machine Supply Co., 482 S.W.2d 34 (Tex.Civ.App.—Fort Worth 1972, no writ) which holds that the two-year period in a noncompetitive agreement begins to run from the date of separation from the parent corporation and not from the subsidiary. C.C.A. attempts to distinguish the case at bar on the grounds that in Womack there was no contract provision designating an affiliated corporation as a beneficiary of the contract as we have here. Although the two cases are factually distinguishable, we do not agree that a different legal result follows in this case. Even assuming that Kingwood could be considered an automatic designee by implication, it remains that Kingwood is a separate entity and not a party to this lawsuit. Notwithstanding the fact that a parent corporation owns the entire capital stock of the subsidiary corporation, the two corporations are separate legal entities, and, whatever may have been the motive leading to their separate existence, they can only be regarded as separate entities for the purpose of legal proceedings. Conley v. Mathieson Alkali Works, 190 U.S. 406, 23 S.Ct. 728, 47 L.Ed. 1113 (1903). A “subsidiary corporation” is one which is controlled by another corporation by reason of the latter’s ownership of at least a majority of the shares of the capital stock. Notwithstanding two corporations may be so related, each is deemed to have an independent existence. International Order of Twelve Knights and Daughters of Tabor v. Fridia, 91 S.W.2d 404, 405 (Tex. Civ.App.—Waco 1936, no writ). The time period for Kingwood’s right to enforce its covenant of noncompetition, if any, is a question separate and apart from the time period applicable to C.C.A. Since there is no provision in the contract which would delay commencement of the running of the two-year period, the commencement date applicable to C.C.A. is January 1972 when Rimes left its employment at Dallas, Texas.

Even assuming the validity of C.C.A.’s argument that the two-year noncompetitive term did not begin to run until Rimes left the employment of Kingwood on May 15, 1974, such period would have terminated on May 15, 1976, so that the order of the trial court, dated May 6, 1976, would have been effective against Rimes for a period of nine days only, and the period has now expired. Consequently, as to both Rimes and Rodgers, the two-year noncompetitive agreement contained in each employment contract with C.C.A. is no longer effective.

C.C.A. seeks to avoid the consequences of the undisputed factual situation concerning the expiration of the prohibited two-year period by contending that the trial court and the appellate court had authority to extend the time period for noncompetition beyond the period contained in the contractual agreement notwithstanding the injunction suit was filed after the expiration of the two-year period. As a basis for this argument, C.C.A. relies upon only one case, Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444 (5th Cir.1971) wherein that court extended an injunction beyond the two years provided in the contractual agreement because the court had stayed injunctions below pending appeal and a final adjudication. Thus, Premier is distinguishable factually from the situation before us and is, therefore, not authoritative in this case.

The supreme court has prescribed the law in this area to be that a court will not extend the period provided in a restrictive covenant contained in an employment contract. In Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 952 (1960) the employer sought to enforce a one-year restrictive covenant. The supreme court held that the lower courts were in error for not granting modified injunc-tive relief, but since the one-year time period provided in the restrictive covenant had expired, the issue was “moot” for appellate review. By so holding the supreme court followed an age-old principle that courts must enforce' contracts as written by the parties and cannot rewrite the contract. Grissom v. Southern Farm Bureau Casualty Insurance Co., 476 S.W.2d 448, 450 (Tex.Civ. App.—Waco 1972, writ ref’d n.r.e.). Here, the parties entered into a contract providing for a noncompetitive period following cessation of employment and such period is now past which causes the issue to become moot. Therefore, the trial court clearly abused its discretion by entering this in-junctive order because C.C.A. could not possibly show a probable right of recovery upon the trial of the merits in the permanent injunction hearing.

Appellants also contend, by appropriate points of error, that the trial court was in error in granting injunctive relief by prohibiting appellants from appropriating confidential information in the form of words and phrases since such words and phrases cannot legally fall within the category of trade secrets. That part of the trial court’s injunction enjoins appellants “from competing with plaintiff by the use of confidential information acquired while in a confidential relationship with plaintiff.” The terms of the agreement between Rimes and Rodgers and C.C.A. concerning confidential information are noted in the margin.

C.C.A. takes the position that the use of certain words and phrases by appellants which C.C.A. uses in its business constitutes unfair competition because these are unique techniques and only used previously by C.C.A. and, therefore, are to be considered “trade secrets.” The alleged trade secrets are evidenced by words and phrases and associated meanings such as: (1) Board of governors; (2) Role playing; (3) Membership matriculation; (4) Question and answer sheets; (5) Default provisions; and (6) Weekly accounting systems. We cannot agree with C.C.A.’s position.

A trade secret is any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Elcor Chemical Corp. v. Agri-Sul, Inc., 494 S.W.2d 204, 211 (Tex.Civ. App.—Dallas 1973, writ ref’d n.r.e.). It is simply a private matter which is kept from the general public and is not susceptible to general knowledge. In order to be a trade secret, there must be a substantial element of secrecy. Furr’s, Inc. v. United Specialty Advertising Co., 338 S.W.2d 762, 765 (Tex. Civ.App.—El Paso 1960, writ ref’d n.r.e.). The record reveals that the words and phrases alleged to be trade secrets are frequently used in soliciting clients and that no effort is made by C.C.A. to maintain an element of secrecy concerning these phrases. C.C.A. does not contend that the words and phrases were invented by them originally. The record reveals that many organizations within the country club industry throughout the country used these and similar terms.

In Furr’s, Inc. v. United Specialty Advertising Co., 385 S.W.2d 456, 459 (Tex.Civ. App.—El Paso 1964, writ ref’d n.r.e.), cert. denied, 382 U.S. 824, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965), the court held that the owner of a trade secret must do something to protect itself from the use of. such secret. The owner will lose his secret by his disclosure unless in some manner he creates a duty and places that duty upon another not to disclose or use such secret. It has been held that conduct on the part of the employee revealing or using information gained in the course of his employment is not actionable when in fact he did not know his employer desired such information to be kept secret. Lamons Metal Gasket Co. v. Traylor, 361 S.W.2d 211, 213 (Tex.Civ.App.— Houston 1962, writ ref’d n.r.e.). Since C.C.A. freely used this information in public, its employees could not be required to keep the same information secret.

C.C.A. relies upon Orkin Exterminating Co. v. Wilson, 501 S.W.2d 408, 411 (Tex.Civ.App.—Tyler 1973, writ dism’d) as authority for the proposition that since employees acquire intimate knowledge of the employer’s business, a former employee’s use of these business techniques and confidential business secrets causes the employee to lose not only potential customers but also his proprietary interest in the secrets. While we agree with this principle of law, it is not applicable here for.the simple reason that C.C.A. made no effort to keep their alleged trade secrets from the knowledge of the general public. From our examination of this record, we hold that the trial court erred in enjoining appellants from appropriating trade secrets from C.C.A.

Since it is obvious from this record that the express time limitations agreed to by the parties in the employment contracts dealing with restrictive covenants has expired and appellants are, therefore, no longer bound by the restrictions contained in the contracts, and since C.C.A. has failed to carry its burden of establishing a deprivation of trade secrets by appellants, we find it unnecessary to pass upon the remaining points advanced by appellants or the cross-points of appellee. Accordingly, we reverse the order of the trial court and dissolve the injunction.

Reversed and rendered.

      . (h) That I will keep secret the names of, or any other information relative to, any past, or prospective security holders, borrowers, and all other business customers and associates of the employer, as well as any and all knowledge as to such subject, and as to any loans, earnings, finances and all other matters which I may acquire during my employment.
      (i) That I will not keep and/or use any papers, records or any information whatsoever relative to any of the matters referred to in the preceding paragraph, nor will I furnish or make available such papers or information to any other person; that I will not engage, directly or indirectly, in any endeavor to persuade any security holder, borrowers, customers, associates or employees of the employer to do anything which might be to the disadvantage of the employer.
      (j) Whereas, the employer is the only company that has been able to design, construct, promote and operate private clubs on the continuing profitable basis; and whereas, through my association with the employer I have acquired and will acquire many techniques directly responsible for this success; I agree that all terms of paragraph (h) and (i) shall remain in full force and effect for a period of two (2) years from the termination of my employment


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Ernestine OVALLE and Gonzalo Ovalle, Appellants, v. A. A. CUDA, d/b/a Cuda’s Grocery & Market, et al., Appellees.
    No. 5627.
    Court of Civil Appeals of Texas, Waco.
    Sept. 23, 1976.
    Rehearing Denied Oct. 28, 1976.
    Samuel F. Biery and Fred Biery, Biery, Biery, Davis & Myers, San Antonio, for appellants.
    J. Michael Myers and Damon Ball, Groce, Locke & Hebdon, San Antonio, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Ovalle from instructed verdict plaintiffs take nothing in a slip and fall case.

Plaintiffs sued defendants A. A. Cuda, J. F. Cuda, and R. G. Cuda all d/b/a Cuda’s Grocery and Market, for personal injuries allegedly sustained by Ernestine Ovalle on December 27, 1974 on defendants’ premises at 4803 South Flores, San Antonio.

Mrs. Ovalle alleged she was entering defendants’ place of business on a rainy morning on December 27, 1974 about 10 AM, to purchase groceries, and was in the process of taking hold of the safety railing for the purpose of walking up the defendants’ concrete entrance ramp, when she slipped and fell because of a patch of grass which defendants allowed to grow onto the concrete entrance ramp. As a result of such fall she alleged she suffered a broken right ankle and fractured tailbone.

After the jury had deliberated for some four hours they reported to the court they were deadlocked. At this point defendants moved the court to withdraw the case from the jury and render judgment for defendants asserting:

1) There is no evidence any one of defendants owned or had any leasehold interest in the premises in question on the date in question.
2) There is no evidence that Ernestine Ovalle was caused to fall by the grass in question.
3) As a matter of law the grass in question did not constitute a dangerous condition creating an unreasonable risk of harm.
4) The grass in question was an open and obvious condition.

The trial court granted such motion and rendered judgment plaintiffs take nothing.

Plaintiffs appeal on 5 points contending the trial court erred in granting defendants’ motion for instructed verdict:

1) Because the evidence and inferences therefrom support a finding the de- • fendants owned the premises on the date of the accident.
2) Because the evidence and inferences therefrom support a finding plaintiff was caused to fall by the grass in question.
3) Because the evidence and inference therefrom support a finding the grass did constitute a dangerous condition creating an unreasonable risk of harm.
4) The dangerous condition in question was not as a matter of law an open and obvious condition.

For the judgment to be reversed all four of plaintiffs’ contentions must be sustained.

We revert to plaintiffs’ point 2 contending the evidence and inferences therefrom support a finding plaintiff was caused to fall by the grass.

Plaintiff plead that she was caused to fall by the grass growing “through the pavement at the point where Mrs. Ovalle approached the entrance ramp and which grass was extremely slippery.”

Plaintiffs’ Exhibit 1 is a photograph which shows grass growing below the end of the safety railing closest to the building which Mrs. Ovalle testified she was holding onto when she fell.

On December 27, 1974 at 10 AM, Mrs. Ovalle and her daughter drove to Cuda’s Grocery and Market to shop for groceries. It was drizzling and misting. The daughter parked the car in one of the two parking spaces closest to a ramp entranceway to the store, and both exited from the car on the driver’s side. The daughter preceded Mrs. Ovalle up the entranceway, and did not see her mother fall. Mrs., Ovalle testified: “I got caught in the rain walking, but as I stepped, I slipped and fell; * * * I walked toward the store and I decided to hold onto the hand rail * * * closest to the building; * * *. As I held onto it, then I stepped to go forward. I slipped and fell on my seat.” Mrs. Ovalle did not testify that she either stepped on or slipped upon a patch of grass that was growing by the sidewalk leading to the ramp. No other witness so testified. The photographic Exhibit merely shows that there was grass in the vicinity where plaintiff was walking when she slipped and fell. There is no evidence that plaintiff slipped and fell on the grass in the photograph, or that such grass caused her to fall.

Plaintiffs’ contention 2 is overruled.

AFFIRMED.


author: AKIN, Justice.

text:
    In the Matter of A_ N_ M_
    No. 18996.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 4, 1976.

      F. Dean White, Canton, for appellant.
    W. E. Eblen, County Atty., Canton, for appellee.
   AKIN, Justice.

This is an appeal by a minor from an order of the county court adjudicating that he had engaged in delinquent conduct within the purview of Tex.Family Code Ann. § 51.03 (Vernon 1975) and from a disposition order committing him to the Texas Youth Council. Trial was to a six-man jury, who found that the minor had stolen two vehicles and had committed burglary in violation of the Texas Penal Code, offenses which would have been felonies if the minor had been an adult. The minor, through his appointed attorney ad litem, contends that the trial court erred in: (1) overruling his motion suggesting mental illness; (2) denying him a twelve-man jury; (3) denying him an instructed verdict because he had not been positively identified as the perpetrator of the offenses alleged by the State; (4) instructing the jury that it could return a verdict upon the vote of five jurors; (5) failing to advise his attorney ad litem of all written matter to be considered by the court at the disposition hearing; (6) failing to set forth in the disposition order reasons for the court’s disposition; and (7) making a disposition not within the power of the juvenile court. Because we hold that the trial court erred in overruling his motion suggesting mental illness, in failing to set forth specifically the court’s reasons for its disposition, and in making an improper disposition, we reverse.

A. The Adjudication Hearing

1. Suggestion of Mental Illness

The minor argues that the court should not have overruled his motion suggesting mental illness, but instead should have ordered appropriate medical and psychiatric inquiry before the adjudication hearing. We agree. Section 55.05(b) provides:

If it appears to the juvenile court, on suggestion of a party or on the court’s own notice, that a child alleged to have engaged in delinquent conduct or conduct indicating a need for supervision may not be responsible as a result of mental disease or defect, the court shall order appropriate medical and psychiatric inquiry to assist in determining whether the child is or is not responsible. [Emphasis added.]

We construe the word “may” as used in this section to indicate reasonable possibility, not reasonable probability. Europak, Inc. v. County of Hunt, 507 S.W.2d 884, 886 (Tex.Civ.App.—Dallas 1974, no writ). Since the trial court had before it a psychological evaluation which was considered by the court on the motion suggesting mental illness, and since that evaluation stated that the minor’s “attempts to control his emotions are likely unsuccessful because his concept of reality tends to be distorted,” we hold that a reasonable possibility was raised that the minor may not be mentally responsible. Therefore, under § 55.05(b), it was mandatory that the trial court order a medical or psychiatric inquiry because the statute uses the word “shall.” See Clear Lake Apartments, Inc. v. Clear Lake Utilities Co., 537 S.W.2d 48, 53 (Tex.Civ.App.— Houston [14th Dist.] 1976, writ filed). Consequently, we conclude that the court’s failure to do so was error.

2. Six-Man Jury

Appellant contends that the trial court erred in using a six-man jury, rather than a twelve-man jury. He argues that the acts which were the subject of the delinquency hearing would be felonies if committed by an adult and would entitle an adult to a twelve-man jury in a district court under Tex.Code Crim.Proc.Ann. arts. 4.05 and 33.01 (Vernon 1966). This argument infers a denial of equal protection and due process guaranteed by the United States Constitution in the fourteenth amendment. Although the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) held that the fourteenth amendment was applicable to juveniles as well as adults, it later held in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) that trial by jury was not constitutionally required in a hearing to adjudicate a juvenile to be delinquent. Cf. In re S— J— C — , 533 S.W.2d 746, 747 (Tex.1976). Furthermore, due process does not require a jury of twelve in view of Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Consequently, we hold that § 51.17 which permits the juvenile board to designate either the county court or the district court as the juvenile court in certain counties does not contravene the fourteenth amendment to the United States Constitution.

Appellant’s contention may also be construed to be a constitutional attack on § 51.17 under the Texas Constitution because of the decision of our supreme court in Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641, 646 (1950). In that case the court held that since a domestic relations court was a statutory court exercising the jurisdiction of a district court, art. I, § 15 of the Texas Constitution which states that “[t]he right of trial by jury shall remain inviolate,” required a jury of twelve men unless the constitution expressly provided for a lesser number. We conclude that Jordan has no application here because Tex. Const, art. V, § 17 prescribes that a constitutional county court shall have a six-man jury and § 51.17 of the Family Code expressly authorizes designation of the constitutional county court as the juvenile court. We see no violation of the constitution in this arrangement.

3. Failure to Identify Minor

The minor contends that the court erred in refusing to grant him an instructed verdict because he was not identified in court as the perpetrator of the alleged delinquent conduct. In support of this argument, he cites cases such as Be La Paz v. State, 161 Tex.Cr.R. 514, 279 S.W.2d 101 (1955) and Gandy v. State, 139 S.W.2d 275 (Tex.Cr.App.1940) which hold that in prosecution of criminal cases the accused must be formally identified in court as the person who committed the crime. This argument ignores the distinction drawn by the legislature between acts committed by juveniles and by adults; where juveniles are involved, the action is civil in nature rather than criminal. A similar argument was advanced by a juvenile in In re S_ J_ C_, 533 S.W.2d 746 (Tex.1976). In that case, our supreme court held that a juvenile may be adjudicated a delinquent based solely upon the uncorroborated testimony of an accomplice witness and that such testimony goes to the weight rather than the admissibility of the evidence. Furthermore, the court observed that there was no constitutional due process restriction prohibiting such testimony in an adjudication hearing although under Tex.Code Crim.Proc. art. 38.14 (Vernon 1966), the testimony of an • accomplice witness must be corroborated.

Here, several witnesses testified that they knew the minor and saw him commit the acts alleged although no witness formally identified him in court as the person who committed the acts. In the absence of evidence casting doubt upon his identity, we hold that this evidence is sufficient identification for the purpose of adjudication and that further formal identification is unnecessary. See Chamblee v. Tarbox, 27 Tex. 139, 144-45 (1863); see also Farhart v. Blackshear, 434 S.W.2d 395, 401 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n. r. e.).

4. Unanimity of Verdict

Appellant also argues that the trial court erred in instructing the jury that a verdict could be rendered upon the vote of five jurors. We agree, although we find that this error was rendered harmless by virtue of the unanimous verdict of the jury. We address it, nevertheless, in view of our decision to remand for further proceedings. Section 54.03(c), as amended by the 64th Legislature, effective September 1, 1975, specifically states that jury verdicts in adjudication hearings must be unanimous. Consequently, on another trial the court should so instruct the jury.

B. The Disposition Hearing

1. Lack of Specificity in Order

Appellant complains of the court’s failure to “state specifically in the order its reasons for the disposition” as required by § 54.04(f). [Emphasis added.] The only reason for the disposition stated in the order is that the “[c]ourt finds that a disposition of the child is necessary for the protection of the Public and the child.” The use of the word “specifically” emphasizes that the legislature intended the court to do more than merely track the statutory language. The rationale for the disposition must be set forth clearly and specifically so as to permit an appellate court, on review, to determine whether the reasons given in the order are supported by the evidence or whether they are insufficient to justify the disposition made. In re T_R_ W_, 533 S.W.2d 139, 141 (Tex.Civ.App.—Dallas 1976, no writ). Compare In re J— R— C_, 522 S.W.2d 579, 580, 582-83 (Tex.Civ. App.—Texarkana 1975, writ ref’d n. r. e.) with In re Honsaker, 539 S.W.2d 198, 200-02 (Tex.Civ.App.—Dallas 1976, no writ). The court erred in failing to set forth the reasons for its disposition with sufficient specificity to meet this standard.

2. Contradictory Disposition Order

Appellant also argues that the form order signed by the court, in effect, makes no disposition. We agree. That order states:

It is ORDERED, ADJUDGED AND DECREED by this Court that said Respondent, A_ N_ M_, be and is hereby
placed on probation under the conditions set out in the instrument attached hereto and made a part hereof,
committed to the care, custody and control of the Texas Youth Council for an indeterminate period of time not to exceed the time when _he shall be eighteen (18) years of age or until duly discharged or further ordered, all in accordance and in compliance with Article 5143d, Vernon’s Texas Civil Statutes.

No conditions of probation are attached to the order. Thus, the order is contradictory in that it places the juvenile on probation under conditions not specified and at the same time commits him to TYC for an indeterminate period of time.

3. Oral Commitment to TYC for One Year

Although the disposition order, supra, does not so state, the statement of facts reveals that the court orally ordered the minor to be committed to the Texas Youth Council for a period of one year. We do not know why this order was not embodied in the written disposition, but since the court apparently intended to do so, we consider the matter in view of our remand for further proceedings.

Prior law provided the court could commit delinquents for an indeterminate period of time. Tex.Rev.Civ.Stat.Ann. art. 2338-1, § 13(c)(2) (Vernon 1971); Smith v. State, 444 S.W.2d 941 (Tex.Civ.App.—San Antonio 1969, writ ref’d n.r.e.). However, § 54.04(d)(2) of the Family Code, which replaced art. 2238-1, § 13(c)(2), omitted the phrase “for an indeterminate period of time.” The question presented is, therefore, whether this omission modified prior law to permit a juvenile court to commit delinquents for a specific period of time. We conclude that it does not in view of other statutory provisions evidencing an intent that commitments to the TYC be for an indeterminate period.

Section 51.01(3) of Title 3 states that a purpose of the Family Code is: “To remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation.” [Emphasis added.] Rehabilitation is, by its very nature, incapable of adhering to a preset timetable. The fact that different approaches and different periods of time will be required to meet this purpose is reflected in Tex.Rev.Civ.Stat.Ann. art. 5143d, § 17 (Vernon 1971):

When a child has been committed to the [Texas] Youth Council as a delinquent child, the Council may:
(a) Permit him his liberty under supervision and upon such conditions it believes conducive to acceptable behavior; or
(b) Order his confinement under such conditions as it believes best designed for his welfare and the interest of the public; or
(c) Order reconfinement or renewed release as often as conditions indicate to be desirable; or
(d) Revoke or modify any order of the Council affecting a child, except an order of final discharge, as often as conditions indicate to be desirable; or
(e) Discharge him from control when it is satisfied that such discharge will best serve his welfare and the protection of the public.

This statute gives TYC broad discretion in dealing with a child committed to it, including the discretion of when to discharge the child.

Further evidence that the legislature intended to continue this discretion in the Texas Youth Council is provided by §§ 54.04 and 54.05 of the Family Code. Section 54.04(d) allows the court to place the child on probation, not exceeding one year, in the custody of suitable individuals or agencies, except TYC, and gives the court power to extend probation for one-year periods. Section 54.05 permits the court to modify any previous disposition, except commitment to TYC. Once a court commits a child to TYC, discretion as to the further disposition is vested in TYC and the court cannot invade this discretion by committing the juvenile for a definite period of time. No provision of the Code authorizes the court to make a commitment for a definite period.

4. Consideration of the Record of the Adjudication Hearing

Appellant also argues that the court lacked authority to consider the record of the adjudication hearing at the disposition hearing. This contention is based upon § 54.04(b) which provides: “At the disposition hearing, the juvenile court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses.” Since the record of the adjudication hearing is not specifically listed, appellant argues that it cannot be considered. We cannot agree because this contention ignores the purpose of the disposition hearing and the intent behind § 54.04(b). Section 54.04(b) is intended to broaden, not to contract, the pool of information upon which the court makes its decision. As Mr. Justice Keith stated in a concurring opinion in Tyler v. State, 512 S.W.2d 46, 50 (Tex.Civ.App.—Beaumont 1974, no writ): “The judge of the juvenile court . . . has the duty and the obligation of entering a judgment which is in the best interest of the minor as well as society in general. He must have available for use all the recognized tools and information in order to enable him to discharge this responsibility.” Part of this information may indeed be evidence presented at the adjudication hearing. To hold that a juvenile court can never consider the record in the adjudication hearing in making its disposition would be unnecessarily burdensome in that witnesses would be forced to reappear and give evidence already heard by the court. Indeed, any evidence presented at the adjudication hearing bearing on a proper disposition of the minor is admissible at the disposition hearing. Our holding here is supported by § 51.01 which sets forth the purpose and interpretation to be given Title 3 of the Family Code as follows: “[T]o provide a simple judicial procedure through which the provisions of this title are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.” We conclude, therefore, that appellant’s argument in this respect is without merit.

This conclusion is consistent with § 54.04(b), which specifically provides that the minor’s attorney shall have access to all written matter to be considered by the court in its disposition. This provision was designed to allow the minor’s attorney to know what is contained in reports which the court uses in reaching its disposition. It was not designed, however, to require that the court notify counsel that it intended to consider material whose contents were already known to counsel. Since appellant’s counsel was advised by the court at the disposition hearing that the court intended to consider all of the record of the adjudication hearing, at which appellant’s counsel was in attendance, we hold that the failure of the court to state with specificity what part or parts of the record of the adjudication hearing that he intended to consider in making his disposition of the minor was not error.

Since the court erred in adjudicating appellant a delinquent and in failing to make a disposition authorized by the Code, both orders are reversed, and this cause is remanded to the trial court for a new adjudication and disposition hearing not inconsistent with this opinion. Appellant is ordered to be returned by the Texas Youth Council to the custody of the juvenile authorities of Van Zandt County for new hearings.

In view of our holding and of the fact that the juvenile was incarcerated for eighty-eight days in the Van Zandt County jail prior to his adjudication and disposition hearings, the trial court’s attention is directed to §§ 52.02(a), 52.03(b)(1), 51.12, 53.-02(b) and 53.05, which pertain to promptness of hearings and to the standards of custodial care pending adjudication and disposition.

      . All references are to the Texas Fa lily Code unless otherwise identified.

      . TYC must terminate its supervision of the of age. § 54.04(d). child, however, when he reaches eighteen years


text:
    Marilyn Sue LABOWITZ, Appellant, v. Fred S. LABOWITZ, Appellee.
    No. 19002.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 7, 1976.

      Walter W. Brudno, Kilgore & Kilgore, Dallas, for appellant.
    Herbert L. Hooks, Dallas, for appellee.
   AKIN, Justice.

This is an appeal by Mrs. Labowitz from an order rendered by the domestic relations court on March 11, 1976, requiring her to pay $100 per month as support for her two children. The principal questions presented by this appeal are which of two prior orders was modified by the March 11 order and whether there was sufficient evidence of a material and substantial change of circumstances between the prior relevant order and the March 11, 1976, order so as to justify ordering the mother to pay child support. Because we hold that there was sufficient evidence of material and substantial change of circumstances, regardless of which prior order was modified by the March 11 order, we affirm. Therefore, the trial court did not abuse its discretion in ordering child support.

The Labowitzes were divorced on August 9, 1974. In the decree Mrs. Labowitz was named managing conservator of their two children and Mr. Labowitz was required to pay $500 per month for child support. In December 1974 the children went to live with their father to enable Mrs. Labowitz to pursue a career in real estate sales. On June 10, 1975, the court appointed Mr. La-bowitz as managing conservator; this order was, however, silent as to child support except that it relieved Mr. Labowitz of any further obligation to pay child support under the original divorce decree of August 9, 1974. On August 14, 1975, Mr. Labowitz filed a motion to require his ex-wife to contribute to the support of the children. After a hearing on January 5, 1976, the court, on March 11, 1976, ordered Mrs. La-bowitz to pay $100 per month child support. She appeals.

She contends that: (1) The trial court erred in finding that it had not passed on the child support question in the June 10 order because, as a matter of law, it had impliedly determined that question, and the court, therefore, erred in failing to apply the “material and substantial change of circumstances” test as required by Tex.Family Code Ann. § 14.08(c)(2) (Vernon Supp.1975); (2) there was insufficient evidence of material and substantial change of circumstances between the June 10, 1975, order and the March 11, 1976, order; (3) the order failed to consider “the circumstances of the parents” or the best interests of the children as required by § 14.07; (4) the trial court abused its discretion in ordering her to pay child support because she is unable to do so and also support herself; and (5) the trial court erred in failing to award her a reasonable attorney’s fee because no reasonable basis existed for the modification order.

We find no merit in these contentions. The trial court has broad discretion to determine child support and we cannot substitute our judgment for his, even though we may have done otherwise. Brito v. Brito, 346 S.W.2d 133, 134 (Tex.Civ.App. —El Paso 1961, writ ref’d n. r. e.). Consequently., we will not disturb the trial court’s order absent a clear showing of an abuse of discretion. Beaird v. Beaird, 380 S.W.2d 730, 732 (Tex.Civ.App.—Dallas 1964, no writ).

1. Material and Substantial Change of Circumstances

Mrs. Labowitz argues that the trial court erred in failing to consider the order of June 10 as one which provided for child support and, therefore, did not apply the standard set out in Tex.Family Code Ann. § 14.08(c)(2) (Vernon Supp.1975), which provides that the court may modify a child support order “if the circumstances of the child or a person affected by the order . have materially and substantially changed since the entry of the order . .” [Emphasis added.] The trial court specifically found, however, that material and substantial changes of condition had occurred in the period between the divorce decree and the order of June 10, 1975, as well as during the period of time between the order of June 10 and the order appealed. Since the trial court applied the proper rules of law to the facts, regardless of which order was modified, it is unnecessary to determine whether the June 10 order was one which impliedly provided for child support as Mrs. Labowitz argues.

2. Sufficiency of the Evidence

Mrs. Labowitz also contends that there is insufficient evidence to support the trial court’s finding that a material and substantial change of circumstances have occurred between the original divorce decree of August 1974 and the March 1976 modification. We cannot agree. In so contending, she notes that her husband was, at that time, obligated to pay her $500 per month for child support and that she was not employed and had no income except $125 rent from the lakehouse. Thus, she argues, the order implied that $500 per month was sufficient-to provide support for the children, and since Mr. Labowitz is now earning an amount roughly equivalent to his income at the time of the divorce (although his income was substantially greater in early 1975), he is obligated to provide the entire support for the children. This argument is not sound. First, the duty to support encompasses both financial aid and services rendered to the children. Friedman v. Friedman, 521 S.W.2d 111, 115 (Tex. Civ.App.—Houston [14th Dist.] 1975, no writ). Since the children are no longer living with her, she is no longer furnishing the degree of services to the children that she did at the time of the divorce, and this, in and of itself, constitutes a material and substantial change requiring the reallocation of financial obligations. Her contention also erroneously assumes that, since she had no income at the time of the divorce, she had no obligation to provide financial aid. The divorce decree did not state the amount necessary for the maintenance of the children; it merely ordered the father to contribute a certain amount. This “does not necessarily mean that the stated amounts of money to be paid by the husband represent all of the money that is needed for the children's maintenance.” Id. The evidence shows that Mrs. Labowitz received at least $6,000 in cash plus the two houses in the divorce settlement. If necessary, she had a duty to expend assets to discharge her obligation of support. Finally, Mrs. Labowitz has increased her income from $125 to $654 per month since the divorce, thereby increasing her ability to support the children.

If the June 10 order is the relevant order, the change of condition must be based on the decrease in Mr. Labowitz’s income between July 1975 and January 1976. There is evidence that he earned only $10,000 in the last five months of 1975 as contrasted to $30,000 for the first seven months of 1975 and that his income will remain at a lower level than that enjoyed in early 1975. On the other hand, Mrs. La-bowitz earned $3,690 during the first half of 1975 and $4,152 during the last half. She argues that the decrease in her ex-husband’s income between July 1975 and January 1976 was not material because her former husband is still capable of supporting the children in the same general manner and that it is not substantial because it reflects a temporary fluctuation and his income is now at the same general level as in preceding years. We cannot agree because we find these changes to be both material and substantial. Obviously, his drop in income in the latter part of 1975 is matérial in that it affects his relative ability to provide support for the children. See Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex. Civ.App.—Houston [1st Dist.] 1974, no writ). Indeed, the evidence shows that because of this reduction Mr. Labowitz had to dispense with the services of a housekeeper to assist him in the care of the children. Furthermore, by contrasting the earnings of both parties in early and late 1975, it is apparent that Mrs. Labowitz now has a greater comparative ability to provide child support than she did on June 10. Likewise, the decrease in Mr. Labowitz’s income from $30,000 to $10,000 is undoubtedly substantial. Even if Mr. Labowitz’s income was at the same general level as it was at the time of the divorce, it was not at the same level as it was when the June 10 order was entered. This is the relevant period. Anticipation of income continuing at a higher level could influence a parent not to demand child support or a court not to consider it warranted. Consequently, if income decreases it may be a material and substantial change of circumstances.

3.Consideration of the Relative Circumstances of the Parent

Similarly, Mrs. Labowitz complains that the trial court failed to take into consideration the circumstances of the parents in modifying the order. However, as noted above, it is evident from this record that the court did take these factors into consideration. Mrs. Labowitz was ordered to pay only $100 per month in child support whereas, when she was managing conservator of the children, Mr. Labowitz was required to contribute $500 per month for their support. Consequently, the disparity in the support payments is compelling evidence that the trial court did indeed take into consideration the relative circumstances of the parties. Certainly, the $100 per month payment is not so out of line with the current relative ability of the parties so as to constitute an abuse of discretion.

4.Ability to Pay

Mrs. Labowitz argues that the trial court abused its discretion in ordering her to pay child support because of her inability to make child support payments and still support herself. In support of her contention she cites Anderson v. Anderson, 503 S.W.2d 124, 127 (Tex.Civ.App.—Corpus Christi 1973, no writ) in which the court states: “The division of . income between father and children must take into consideration the right of a father to self subsistence in accordance with his income; there is some minimum amount necessary for a bare subsistence, and less than such amount renders a child support order unenforceable.” While we agree with this statement, it has no application to Mrs. Labowitz under the facts here. The evidence is that Mrs. Labowitz earned an average of $654 per month during 1975 and had fixed mortgage and car payments of $493 per month, leaving an average surplus of $161 to meet her living expenses. She owns, however, two houses, a residence and a lakehouse, with approximately $38,000 in equity, and an expensive Mercedes-Benz automobile. Additionally, she has recently been able to borrow $4,000. Under these facts, we cannot say that the trial court abused its discretion in finding that Mrs. Labowitz was able to pay $100 per month considering both her income and her assets. The cases cited by Mrs. Labowitz do not require a different result. In Anderson there was evidence that the father’s income had dropped substantially and that he had sold or mortgaged available property to meet the support payments. In Bell v. Sykes, 521 S.W.2d 752 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ), the total earnings of the father were virtually the same as the amount he was ordered to pay, and there was no mention of other assets or income. Likewise, in Kominczak v. Kominczak, 474 S.W.2d 749 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ), there was evidence only of a substantial decrease in the father’s income; no other resources with which he could discharge his obligation were mentioned. Consequently, we conclude that Mrs. Labowitz failed to show any abuse of discretion by the trial court.

5. Attorney’s Fee

Mrs. Labowitz’s final contention is that the trial court erred in not granting her attorney’s fees because her ex-husband had no reasonable basis for the motion to modify. Since we have concluded that Mr. Labowitz had a reasonable basis for the motion to modify, this point is also overruled. Furthermore, Tex.Family Code Ann. § 11.18(a) (Vernon 1975) gives the trial court discretion to grant attorney’s fees; from the record here we cannot say that the court abused its discretion in refusing to do so. Cf. Forney v. Jorrie, 511 S.W.2d 379, 387 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.). The order of the trial court is affirmed.

Previously, we granted Mrs. Labowitz’s motion to suspend the enforcement of the order of March 11 until her appeal was decided. On July 22, 1976, Mr. Labowitz filed a motion to rescind our order of suspension based upon an affidavit showing that Mrs. Labowitz sold one of her houses which netted her $26,982.42 in cash. Therefore, he contended that she is obviously capable of paying the child support of $100 per month. We carried this motion pending our decision on the merits of the appeal. Since we have affirmed the order requiring Mrs. Labowitz to pay the child support, we now grant Mr. Labowitz’s motion and vacate our previous order of suspension.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    In the Interest of Janice Jean ANGLIN, a minor.
    No. 19000.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 7, 1976.

      Hugh 0. Mussina, Dallas, for appellant.
    Charles Wilson, III, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appel-lee.
   CLAUDE WILLIAMS, Chief Justice.

Ronald 0. Anglin appeals from an order of the domestic relations court of Dallas County, Texas, in a suit to modify the parent-child relationship of Janice Jean Anglin, a minor. The order directs that Bonnie Jean Moss, the minor’s natural mother and appellee herein, become the managing conservator of the minor with the appellant father becoming the possessory conservator. Appellant’s appeal is based on the grounds that: (1) There is no finding nor any evidence to show a material and substantial change in the circumstances of the minor child which would justify a change of custody and, therefore, the trial court committed fundamental error in ordering such change; (2) the trial court erred by applying the wrong legal standard under Tex.Family Code Ann. § 14.08 (Vernon 1975); (3) the findings of fact by the trial court are ambiguous in that they do not state a change of condition or indicate whether an alleged change was for the better or for the worse; (4) the pleadings do not allege that circumstances of the child have materially and substantially changed since the entry of the child custody order sought to be modified; and (5) there is no evidence to support the findings of fact of the trial court. We hold that the only contention with merit concerns the application of the wrong legal standard under the statute, but such error is harmless since the same result follows when the correct standard is applied. Accordingly, we overrule all of appellant’s contentions and affirm the trial court’s judgment.

During the non jury trial the court heard evidence and reviewed a social study prepared by the chief probation officer of Dallas County. The following material testimony was presented. Ronald 0. Anglin and Bonnie Jean Moss were divorced on December 13, 1969. The custody of both minor children of the marriage, Janice Jean Anglin and Michelle Marie Anglin, was placed with the natural mother, appellee herein. On May 5, 1972, pursuant to Ronald 0. Anglin’s motion to modify child custody, he was awarded custody of both the children. The younger child, Janice, began living with her father while the older daughter, Michelle, who was then approximately fifteen years of age, did not do so. When Michelle was sixteen years old, she married a young man with the permission of her mother. Sometime thereafter, when she was eighteen years of age, she ceased living with her husband and began living with her father.

Janice, who is now ten years of age, is legally blind in one eye and has poor vision in the other eye. The appellant father is not married and presently lives with Janice and Michelle. Michelle supplies approximately one-half of the supervision, control and management of Janice. She has also played an active role in supplying her younger sister’s hygenic and nutritional care which would normally be afforded by a parent. Appellant works five to six days a week and picks Janice up after school each evening on school days about six o’clock p. m. In the interim period from the end of school until six o’clock, Janice is traded between the homes of different school friends for the purpose of supervision. Appellant drinks liquor daily in the presence of Janice, who said that her father drinks to excess. Michelle testified that prior to living with her father, she noticed during her visits that Janice did not have an adequate diet, did not have sufficiently clean clothes, and did not practice good hygenic habits. She also testified that she had seen bugs, which she thought to be cockroaches, on the premises. Michelle’s testimony is that she plans to be married and to move to another city with her husband.

Appellee mother testified that since the last change of custody order, she has remarried and has established a stable home life. She testified that she and her husband have moved from their apartment and purchased a house. She said that since the previous change of custody, she has controlled her alcoholic problem which was the basis of the first custody change order and is now a regular member of Alcoholics Anonymous. She has secured gainful employment, but such work would not interfere with her being home with Janice when she is out of school. She said that she sought custody of Janice because she believed that Janice was not receiving proper medical care, a sufficient diet and parental supervision. The husband of the appellee testified that he enjoyed a good father-daughter relationship with Janice and that he is gainfully employed as a professional photographer. The trial court interviewed Janice in chambers and her recorded testimony reveals a definite desire on her part to live with her mother and not with her father.

On December 18, 1975, the trial court entered a judgment appointing the appellee mother to be managing conservator of the minor. The court, upon request of appellant father, filed findings of fact and conclusions of law.

In reviewing appellant’s “no evidence” points concerning the findings of fact, we must determine if there is any evidence of probative force to support such findings by giving credence only to the evidence favorable to them and disregarding all evidence to the contrary. Moreover, the findings of fact and conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.1963); Heard v. City of Dallas, 456 S.W.2d 440, 443 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.).

A review of the record reveals that there is some evidence of probative force to support all of the material findings made by the trial court and we, therefore, overrule appellant’s “no evidence” points. The trial court found that the appellee mother had an alcoholic problem of long standing which deteriorated to the status of severe mental disturbance by May of 1972 and that she sought and obtained medical treatment for such problem which had resulted in her obtaining a full recovery from the mental disturbance. This finding is supported by evidence from appellee who testified to these facts and also testified that she had become a member of Alcoholics Anonymous and this experience had helped her with her drinking problem which had previously caused her mental disturbances. From the record it would seem evident that appellee mother had not consumed liquor since May of 1972.

The trial court further found that appellee mother is remarried, has a stable home atmosphere and ideal surroundings for the rearing of a teenage female child and presents an environment vastly superi- or to the home life and environment of appellant father. There is also evidence to support this finding. Appellee testified that she married her present husband some two years before and recently moved from an apartment to a house which they had purchased. She and her husband have attempted to remodel the house and prepare a good home. Other testimony reveals that appellant because of his working hours is unable to supervise the child until six o’clock in the evening thereby requiring the child to stay with different friends and their parents for adequate supervision from the end of the school day until that time. Appellant himself testified that he drank around the child a majority of the time when he was home. The older daughter, Michelle, testified that she contributed a substantial amount of time to the supervision of Janice but that she was in the process of marrying and would leave the household soon. She recommended that custody of the child be awarded to the appellee mother.

The court further found that the effect of the circumstances giving rise to the transfer of custody in 1972 was a transitory condition which no longer exists. The record supports this finding. There is some evidence to show that whatever drinking and mental problems appellee suffered at the time of the 1972 child custody order such conditions have changed for the better and that such problems no longer exist. Appellant argues that since the 1972 order does not reveal the reason why it was entered thereby changing the custody of the child, such finding is without support in the evidence. While appellant may be technically correct, the ultimate decision of the trial court is not affected because such finding is immaterial and is not necessary to support the judgment in view of the other finding, supported by evidence, that appel-lee has made a full recovery and is now mentally capable of becoming the managing conservator.

Appellant also argues that the trial court committed fundamental error in entering an order directing the change of custody for the reason that there is no finding of fact to indicate what circumstances have materially and substantially changed since the last preceding adjudication of the custody. He also complains that the court’s findings of fact are ambiguous. Appellant requested the trial court to make and file findings of fact and after receiving them did not request additional findings nor did he object to those findings made by the court. Under these circumstances he is bound in his appeal by the court’s findings. The court of civil appeals must presume that the evidence supports the express findings made by the trial court and any omitted findings necessary to support the judgment which, concern unrequested elements of a theory of recovery or defense when the trial court has found one or more elements supporting that theory. Tex.R.Civ.P. 299; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1943); and Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166-67 (1948).

The trial court found that there had been a change of condition with respect to the appellant’s father since the time of the original custody change order and made the following conclusions of law:

(1) I conclude, as a matter of law that the overriding consideration in all child custody matters is “the best interests of the child or children involved,” and that all rules of law enunciated by the cases are directed toward achieving that end.
(2) I conclude, as a matter of law, that although ordinarily the “material change of conditions” to be inquired into primarily concerns the custodial parent, that there is an exception to that rule where custody has been divested because of a transitory condition of the non-custodial parent which has resulted in loss of custody by the non-custodial parent in a prior proceeding.
(3) I conclude, as a matter of law, that the change of condition of the custodial parent here (respondent) has not been of such magnitude as to constitute a “material change of condition,” and would not ordinarily justify a transfer of custody. Adding thereto the findings with reference to the cause of the initial transfer of custody and the improvement in the conditions with respect to the noncustodial parent, even above that which existed at the time of the original divorce, justifies the change ordered.
(4) I conclude that the natural mother (petitioner) should be made managing conservator of the child made the subject of this proceeding.

Appellant argues that such conclusions of law are fundamentally erroneous for the reason that appellee mother failed to establish any predicate for the change in custody as required by Tex.Family Code Ann. § 14.-08 (Vernon 1975) as it existed at the time of the hearing and which required a finding that the circumstances of the child have materially and substantially changed and that modification is in the best interests of the child as a predicate for modifying an order of the court providing for managing conservatorship. While we agree with appellant that the test set forth in the conclusions of law made by the trial court is not a proper test under the Family Code, under the facts of this case an application of the correct test, in light of the record made, would result in the same conclusions and results and, therefore, the trial court’s error is not, in our opinion, an error which caused the rendition of an improper judgment denying appellant’s right and requiring a reversal of the judgment under Tex.R.Civ.P. 434.

The legal standards in this area of family law have been developed to prohibit continuous litigation which has the effect of creating an unstable and emotionally disturbing environment during the- child’s formative years. Therefore, a party seeking to change the custody of his children has the burden of proving that conditions have so materially changed since the divorce decree that to leave the custody with the other party would be injurious to the welfare of the children. Wilkinson v. Evans, 515 S.W.2d 734, 738 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). Since the public policy requires a high degree of stability provided to the child in its home and surroundings, there must be a showing of a material change of conditions to authorize any change of custody by the trial court. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (Tex.1955); Short v. Short, 163 Tex. 287, 354 S.W.2d 933, 936 (Tex.1962); Mumma v. Aguirre, 364 S.W.2d 220 (Tex. 1963); Love v. Love, 461 S.W.2d 437, 438 (Tex.Civ.App.—Waco 1970, writ ref’d n. r. e.); and Holloway v. Allison, 494 S.W.2d 612 (Tex.Civ.App.—Tyler 1973, no writ).

Appellant relies upon the theory that in a change of custody action, the court should consider only material changes of condition involving the custodial parent. To support this contention he cites In re Y, 516 S.W.2d 199, 203 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.) which cites Justice Smith’s views and his concurring opinion in Bukovich v. Bukovich, 399 S.W.2d 528, 530 (Tex.1966). Other cases in this jurisdiction hold that a change of the noncustodial parent’s condition may be enough to justify a change of custody. Boyd v. Boyd, 157 S.W. 254, 256 (Tex.Civ. App.—Texarkana 1913, no writ); Andrews v. Warren, 439 S.W.2d 872 (Tex.Civ.App.— Beaumont 1969, writ ref’d n. r. e.). However, even if the proposition enunciated in In re Y is correct, the result herein would be the same since there is sufficient testimony concerning a change in both the appellant’s and appellee’s circumstances. The trial court determined in its findings of fact that there had been a change of condition with respect to the appellant but that it was a question of degree rather than a new or different condition. When applying the law to this finding the court concluded that since it was not a different condition, it was immaterial. We do not agree with the trial court’s interpretation that a different condition is required. The change of condition in degree is sufficient to justify a change in the child’s custody if it is a material change of condition. We conclude that the change in the appellant’s condition is material and it justifies the trial court’s order.

In June 1972, the trial court ordered the custody of both minor children to be given to the appellant, father. At that time the older child, Michelle, was approximately fifteen years of age and was old enough to aid in the care of the younger sister, Janice. The record is undisputed that Michelle has provided a significant portion. of the supervision and care of the sister, Janice, but that she now, having reached the age of maturity, is about to marry and move from the household. We agree with the trial court that this evidence, in itself, is a change of appellant’s circumstances which directly affect the minor child. Also, we believe that this change in circumstances is material to the welfare and being of the minor child. Consequently, this is a material change of circumstances affecting the child insofar as appellant and his household are concerned so that the requirements of the Family Code are complied with.

Adequate testimony was presented at the hearing showing a material change in the conditions affecting the appellee and her household. When considering the noncustodial parent’s changes of circumstances courts have required significant changes which would benefit the child to overcome the presumption that stability within the home is paramount. A reduction in the use of alcohol alone has been held not to be a material change in condition. Box v. Box, 292 S.W.2d 161, 164 (Tex.Civ.App.—Eastland 1956, no writ). However, it has been held that a change of a noncustodial parent’s condition which allows her to spend full time with the child is a material change in condition if it has taken place after the previous order directing custody. This would be an increasingly important change when the mother has entered into a new marriage which has been shown to be stable and would establish a good environment for the child by allowing the mother to devote her energy to care for the child. Canavespe v. Havins, 478 S.W.2d 166, 171 (Tex.Civ. App.—Fort Worth 1972, no writ). In a very recent case a situation was reviewed where the custodial father, who lived with the mother at the' time of the previous custody order thereby allowing adequate supervision for the child, moved away from his mother and was attempting to supervise the child as well as work full time. This, combined with the fact that the noncustodial parent corrected all nervous disorders existing at the time of the prior order, remarried and established a home with a husband who was financially able to care for the child and who loved the child, justified the court in granting a change in custody to the mother. Thompson v. Uzell, 541 S.W.2d 499 (Tex.Civ.App.—Tyler 1976, no writ). In view of these decisions, appellee’s changes of circumstances are material and should be considered along with appellant’s changes of conditions and circumstances in attempting to determine the best interests of the child as required by Tex.Family Code Ann. § 14.08 (Vernon 1975).

Also since Janice is ten years of age, we believe that she is old enough for the court to give some credence to her desires to live with her mother as shown by her testimony in chambers with the trial judge. Although a minor child’s desires are not controlling on the court, other things being equal, they should be considered in determining the custody unless it is shown that an adverse party has purposely influenced the child’s decision. Neal v. Medcalf, 244 S.W.2d 666, 667 (Tex.Civ.App.—El Paso 1951, no writ); Fontaine v. Fontaine, 325 S.W.2d 428, 431 (Tex.Civ.App.—Dallas 1959, no writ).

Appellant argues that the trial court erred in entering judgment directing the change of custody for the reason that there was no allegation in the appellee’s pleadings that the circumstances of the child had materially and substantially changed since entry of the prior order as required by Tex.Family Code Ann. § 14.-08(a) (Vernon 1975). Appellant argues that the fact the words “concerning the child” were omitted from the petition would be fatal and would prevent the entry of an order changing custody. However, the record reveals that the appellant did not specifically except to appellee’s pleadings nor did he object to testimony offered concerning the subject. In fact, appellant raises the point for the first time on appeal. Tex.R.Civ.P. 90 provides that any omission or defect of the pleadings either in form or substance must be pointed out by a motion or exception in writing and brought to the attention of the trial court in a nonjury case before the rendition of judgment. If this is not done it shall be deemed to have been waived by the parties seeking reversal. Sherman v. Provident American Insurance Co., 421 S.W.2d 652, 654 (Tex.1967). Moreover, technical rules of practice and pleading are of little importance in determining the issues concerning the custody of children and we do not agree that the omission of these words in the petition would be fatally defective to the petition even if a timely objection had been made. Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.1967).

As stated by the supreme court in Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex.1966), once a change of condition is shown the question then becomes whether or not a change of custody is warranted, and this is a question within the discretion of the trial court whose action will not be disturbed in the absence of an abuse of discretion. The controlling conditions, as stated by the supreme court are those changes of conditions affecting the welfare of the child, and not the desires, acts and claims of the respective parents which are secondary considerations and material only as they bear upon the question of the best interest of the child. A review of this record conclusively demonstrates that the best interests of the child involved here is for the mother to have managing conserva-torship. The trial court did not abuse its discretion in granting the order.

Judgment of the trial court is affirmed.

Affirmed.

      . This section of the Family Code was amended by the legislature with an effective date of September 1, 1975. Since this suit was commenced on November 27, 1974, the statute must be applied as it was written prior to the amendment. Clewis v. Clewis, 519 S.W.2d 274, 276 (Tex.Civ.App.—Tyler 1975, no writ). Consequently, the citation to the statute reflects its status as of November 1974.


author: ELLIS, Chief Justice.

text:
    TEX-CO GRAIN COMPANY, Appellant, v. HAPPY WHEAT GROWERS, INC., et al., Appellees.
    No. 8671.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 18, 1976.

      Arthur J. Lamb, Amarillo, for appellant.
    Banner, McIntosh & Dobbs; Jack G. Banner, Elmer H. Parish, Fillmore, Lambert, Farabee, Purtle & Lee; Roger A. Lee, Wichita Falls, for appellees.
   ELLIS, Chief Justice.

This is a suit on a sworn account by Tex-Co Grain Company seeking recovery of the unpaid balance owing to it for cattle feed delivered to Happy Wheat Growers, Inc., hereinafter referred to as the Feedlot. Tex-Co is seeking to hold each of the defendants, Flynn W. Stewart, A. J. Wood, Jr. and Dave W. Rhone, personally liable for the unpaid portion of the account on the theory that the defendants were partners or joint adventurers with the Feedlot. The case was tried to the court on stipulated facts and a take-nothing judgment was rendered against the plaintiff. Tex-Co has appealed from that judgment. Affirmed.

The stipulated facts reveal the following: In June, 1972, the defendants agreed in writing “to engage in a joint venture” with the Feedlot. In substance, the agreement provided that the Feedlot would accept, feed and maintain the defendants’ cattle at its own expense. For this service, the defendants were to be charged the “going price” for the Feedlot’s services. If the Feedlot made a profit from caring for the defendants’ cattle, the defendants (as a group) and the Feedlot were to divide the profit equally. If a loss resulted (i. e., the Feedlot’s expenditures on the defendants’ cattle exceeded the fee it charged the defendants) the Feedlot was to bear the entire loss.

• Subsequent to the execution of the above-described agreement, Tex-Co sold the Feedlot a quantity of cattle feed which was delivered in March and April, 1974. At the time the sale was made, Tex-Co neither knew of nor relied upon the agreement between the Feedlot and the defendants. The Feedlot never paid the bill for the cattle feed and later was adjudicated a bankrupt in federal district court.

Tex-Co brought suit against the defendants alleging that their agreement with the Feedlot made them liable for the Feedlot’s debt as partners or joint adventurers. Although the agreement denominated the relationship as a “joint venture,” the trial court concluded that the agreement created no partnership or joint venture and that the agreement was voided before Tex-Co sold the cattle feed to the Feedlot. On appeal, Tex-Co has complained of both these conclusions, but the basic matter for determination in this case is whether the defendants and the Feedlot were partners or joint adventurers.

A joint venture is a legal entity described as being “in the nature of a partnership engaged in the joint prosecution of a particular transaction for mutual profit.” Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 709, 59 A.L.R.2d 1011 (1956). Partnerships and joint ventures, however, are distinct legal entities in Texas. See e. g., Woodrum v. Cowan, 468 S.W.2d 592 (Tex. Civ.App.-Austin 1971, writ granted), modified on other grounds, 472 S.W.2d 749; Humble Oil & Refining Co. v. Luling Oil & Gas Co., 192 S.W.2d 315 (Tex.Civ.App.-Galveston 1944, no writ). The rights, duties and liabilities of joint adventurers are analogous to those of partners. Woodrum v. Cowan, supra, at 598-99.

It is well established that the essential elements of a joint venture in Texas are: (1) mutual right of control, (2) community of interest, (3) agreement to share profit as principals, and (4) agreement to share losses. Chandler v. Herndon, 450 S.W.2d 703 (Tex.Civ.App.-Corpus Christi 1970, writ ref’d n. r. e.). Furthermore, whether the given facts in a particular case constitute a joint venture is a question of law to be determined by the court. See Price v. Wrather, 443 S.W.2d 348 (Tex.Civ. App.-Dallas 1969, writ ref’d n. r. e.).

It is significant that in the instant ease Tex-Co and the defendants expressly agreed not to share losses. As previously indicated, a necessary element in a joint venture is that the parties agree to share losses. Brown v. Cole, supra; Fry v. Shaw, 508 S.W.2d 142 (Tex.Civ.App.-Dallas 1974, writ ref’d n. r. e.); Ames v. Texas Gulf Indus., 411 S.W.2d 779 (Tex.Civ.App.-Texarkana 1967, no writ). In the light of the foregoing, we hold that, as a matter of law, the agreement did not create a joint venture.

Unlike joint ventures, rules regarding the formation of partnerships are derived from the Texas Uniform Partnership Act. Tex.Rev.Civ.Stat.Ann. art. 6132b §§ 6 — 7. Section 6(1) defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Under the Act, the question of partnership vel non is primarily one of fact. Fuller v. Fuller, 518 S.W.2d 250 (Tex.Civ.App.-Beaumont 1974, writ ref’d n. r. e.); Arnold v. Caprielian, 437 S.W.2d 620 (Tex.Civ.App.-Tyler 1969, writ ref’d n. r. e.). The trier of fact must consider all of the evidence bearing on the issue and make a fact finding as to whether a partnership was formed. If there is substantial and probative evidence supporting the finding, it will not be disturbed on appeal. Fuller v. Fuller, supra; Blair v. Rindy, 358 S.W.2d 685 (Tex.Civ. App.-Houston 1962, writ ref’d n. r. e.). In this case, the trial court found that no partnership had been formed between the Feedlot and the defendants. There is ample support for this finding in the record. For example, there was no mutual control over the affairs of the Feedlot or the affairs of the defendants. No tangible property was owned in common. Losses and expenses were not shared by the defendants. These facts all support the finding of the trial court and we sustain that finding.

Tex-Co, however, has directed our attention to section 7(4) of the Texas Uniform Partnership Act. According to that section, profit sharing is “prima facie evidence” of the existence of a partnership unless one of five specific exceptions to this rule applies. None of these exceptions applies in this case and Tex-Co has argued that the parties’ agreement to share profits conclusively established the existence of a partnership. We do not construe section 7(4) to restrict the finder of fact so drastically.

Section 7(4) sets up evidentiary rules for determining whether a partnership exists. If a plaintiff proves that the parties agreed to share profits, he has produced “prima facie evidence” of a partnership. It is our opinion that, in a case such as this one, where there is probative evidence tending to negate the existence of a partnership, presentation of this “prima fa-cie evidence” creates an issue of fact to be determined by the fact finder. The finder of fact, however, is not bound to find that a partnership existed.

On the contrary, decisions rendered since the Uniform Act was enacted indicate that an agreement to share profits, by itself, does not establish the fact of partnership. Holman v. Dow, 467 S.W.2d 547 (Tex.Civ. App.-Beaumont 1971, writ ref’d n. r. e.); Blair v. Rindy, supra. We hold that the parties’ agreement to share profits did not make them partners as a matter of law under section 7.

Tex-Co has contended, however, that the agreement evidences an intent to share profit as co-owners and that the existence of a partnership was proven. Texas courts have held that if those sharing profits did not intend to share them as co-owners, they will not be partners. Strawn Nat’l Bank v. Marchbanks, 74 S.W.2d 447 (Tex.Civ.App.-Eastland 1934, writ ref’d). Furthermore, in its definition of “partnership,” the Uniform Act expressly recognizes co-ownership as an element of a partnership. Tex.Rev.Civ.Stat.Ann. art. 6132b § 6. Case law developed after the enactment of the Act has continued to use pre-Act tests for determining the existence of a partnership. See Fuller v. Fuller, supra; Conrad v. Judson, 465 S.W.2d 819 (Tex.Civ.App.-Dallas 1971, writ ref’d n. r. e.), cert. denied, 405 U.S. 1041 [92 S.Ct. 1312, 31 L.Ed.2d 582] (1972). In the instant case, it is our opinion that there is sufficient evidence to support the inference that the parties did not intend to share profits as co-owners. Thus, the existence of a partnership has not been established.

It also has been argued that the language in the agreement stating that the parties agreed to “engage in a joint venture” evidences an intent to become joint venturers or partners. Although, as contended by Tex-Co, the language employed is “strong and persuasive” evidence of the intent of the parties when they executed the agreement, the finder of fact was under a duty to consider all parts of the instrument to determine the parties’ intent. Steeger v. Beard Drilling, Inc., 371 S.W.2d 684 (Tex.1963). See also Misco-United Supply, Inc. v. Petroleum Corp., 462 F.2d 75 (5th Cir. 1972). The trial court, within its recognized prerogative as the fact finder, found that no joint venture or partnership was formed. The conclusions reached by the trial court are supported by ample evidence in the record and will not be disturbed by this court. Fuller v. Fuller, supra, [518 S.W.2d] at 252. It is our opinion that no joint venture or partnership was formed between the parties to the agreement. Accordingly, Tex-Co’s first point of error is overruled.

Appellant’s second point of error attacks the trial court’s finding that the original agreement had been voided before the debt was incurred. However, our holding that no joint venture or partnership was formed between the parties is dispositive of this appeal; therefore, we do not reach the second point.

For the reasons above stated, the judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    Gary WILSON and Ben Wilson, Appellants, v. REMMEL CATTLE CO., INC., et al., Appellees.
    No. 8689.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 18, 1976.
    Rehearing Denied Nov. 15, 1976.

      Culton, Morgan, Britain & White, Pat Long, Amarillo, for appellants.

      Stokes, Carnahan & Fields, O. P. Fields, Amarillo, for appellees.
   REYNOLDS, Justice.

Judgment non obstante veredicto was improperly rendered after a jury trial because a viable disputed fact issue was not submitted to the jury and is yet unresolved. Reversed and remanded with instructions.

Appellants Gary Wilson and Ben Wilson bought 118 head of cattle with the proceeds of their $29,393.91 bank note. On 8 October 1973, the cattle were delivered to and placed in a separate pen on the premises of appellee Remmel Cattle Co., Inc., a commercial feedlot engaged in feeding and marketing cattle, pursuant to an agreement between the Wilsons and appellee Charles Kent Remmel, an officer and manager of the feedlot. The agreement was that the Wilsons would feed and doctor their cattle, furnishing their own grain and medicine, until the cattle were placed on wheat pasture and, for the use of the pen, the Wilsons would perform custom cattle work for the feedlot.

After the Wilsons furnished some feed and doctored their cattle and worked one pen of cattle for the feedlot, the feedlot furnished some feed to the cattle on the 10th and 11th of October, 1973, and, beginning 14 October 1973, the feedlot supplied a significant amount of feed to and provided general care of the cattle. At or following the end of the year, a feedlot statement approximating $6,000 for the care of the cattle was presented to the Wilsons, who refused to pay the account. They contended that they had neither asked Charles Kent Remmel nor agreed with him to care for the cattle, and that on or about 14 October 1973 they entered into an oral agreement with him whereby he had purchased the cattle for the balance due on the Wilsons’ bank note. Remmel’s payment was deferred, according to Gary Wilson, until Remmel could sell some fat cattle he had in the feedlot because he was “loaned up at the bank.” Remmel denied that he had agreed to purchase the cattle and stated that the feedlot began caring for the cattle at the request of the Wilsons, who said they could not handle the cattle along with their regular jobs. In January of 1974, when cattle prices were declining, the Wilsons moved the cattle, the number of which had been decreased by death loss to 109, from the feedlot and, after pasturing them on wheat and grass, sold them in May of 1974. Gary Wilson said that when Charles Kent Remmel presented the statement and suggested they do something with the cattle, the cattle were removed to wheat pasture because “our name was still on the note at the bank. So we decided we had better get somewhere to put those cattle.”

Thereafter in August of 1974, Remmel Cattle Co., Inc., and Charles Kent Remmel, collectively designated as the Remmels, instituted this suit to recover $7,455.81 from the Wilsons for the care of the cattle. The Wilsons counterclaimed, alleging the oral contract pursuant to which the Remmels took the cattle as their own, and sought from the Remmels the difference between the oral contract price and the selling price of the cattle, the expenses incurred after the sale and exemplary damages. The Remmels interposed the defense of the statute of frauds to the Wilsons’ cross-action and, alternatively, pleaded a mutual rescission of the oral contract.

After hearing contradictory versions of the transactions from Charles Kent Remmel and the Wilsons, the jury failed to find that the Wilsons agreed with Remmel Cattle Co., Inc., to furnish feed and maintenance for the cattle, but found that on or about 14 October 1973, the Remmels did agree to purchase the cattle for $29,393.91 and breached the agreement which was a proximate cause of the Wilsons’ damages in the sum of $9,020.01. The Wilsons’ motion for judgment on the verdict was denied and the Remmels’ motion for judgment non obstan-te veredicto was granted, the court finding “the contract . . .' violative of the statute of frauds,” one of the grounds of the motion for judgment non obstante vere-dicto.

The Wilsons have appealed. They utilize the first two of their four points of error to attack the judgment non obstante veredicto and the remaining two points to assert their entitlement to judgment on the verdict. Replying, the Remmels have included a cross-point assertion that, even assuming an enforceable oral contract, the judgment non obstante veredicto is nevertheless correct because the oral agreement was mutually rescinded when the Wilsons reacquired the cattle from the Remmels. None of the jury’s answers has been challenged.

In V.T.C.A., Bus. & C. § 2.201, which is denominated a statute of frauds, it is provided that:

(a) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. .
******
(c) A contract which does not satisfy the requirements of Subsection (a) but which is valid in other respects is enforceable
******
(3) with respect to goods which have been received and accepted.

Thus, for the Wilsons to enforce their pleaded oral contract of sale in .face of the pleaded defense of the statute of frauds, they were required to establish two essential elements: (1) the oral agreement, and that (2) pursuant to it, the Remmels received and accepted the cattle. The first element of their cause of action was submitted to and found in their favor by the jury, but the second essential element was omitted from the submission without objection.

Under Rule 277, the trial court is to submit to the jury any pleaded group of facts supported by the evidence which controls the disposition of the case. The corollary is that the court is not to submit a pleaded issue which is conclusively established under the evidence or for which there is no evidence to support a finding thereon. Unless established as a matter of law, the issue of receipt and acceptance is a factual issue. See, e. g., Wade v. Jones, 526 S.W.2d 160, 161-62 (Tex.Civ.App.-Dallas 1975, no writ). In our view and contrary to the respective positions of the Wilsons and the Remmels, neither receipt and acceptance nor non-receipt and non-acceptance was established by the evidence as a matter of law. The fact that the cattle were located in the feedlot at. the time of the pleaded oral contract does not, under the description of the agreement placing them there, either establish physical possession in the Rem-mels so as to foreclose their taking physical possession under a later contract of sale or ripen into their receipt and acceptance of the cattle upon the mere showing of an oral contract. No one other than the interested parties testified to the conversations and actions concerning the presence or absence of an oral sale agreement. Their testimony, which only scantly described their dealings, was neither undisputed nor so clear as to conclusively show whether the Remmels did or did not receive and accept the cattle pursuant to an oral contract, and merely raised that factual issue for resolution by the jury. Cf. Holly Sugar Company of Hereford v. Aguirre,.487 S.W.2d 421, 425 (Tex. Civ.App.-Amarillo 1972, writ ref’d n.r.e.). Therefore, under Rule 277, that essential element of the Wilsons’ cause of action should have been submitted to the jury.

Notwithstanding, if the court submits a part of the elements necessary to sustain a ground of recovery and, without objection, omits another element for which there is evidence to support a finding thereon, the issue itself is not waived, Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85 (1940); rather, by authority of Rule 279, the parties are considered on appeal to have agreed to waive a jury trial on the unsubmitted element and to have submitted it to the court for resolution. In this event, the rule provides that the trial court, at the request of any party, may file written findings on the omitted element in support of the judgment rendered and, absent the written findings, the court shall be deemed to have decided the omitted factual issue in such manner as to support the judgment rendered.

But that is not the status of the record we review. Here, there was no request made for and the court did not make an express finding on the live factual issue of receipt and acceptance; instead, the court rendered judgment non obstante ve-redicto. A judgment non obstante veredic-to is equivalent to a finding that there is no evidence to raise an issue for the jury, and consequently there is no presumption of a finding by the court on a disputed issue of fact. Rodriguez v. Higginbotham-Bailey-Logan Co., 138 Tex. 476, 160 S.W.2d 234, 235 (1942); Frerking v. Southern County Mutual Insurance Company, 467 S.W.2d 672, 674 (Tex.Civ.App.-Amarillo 1971, writ dism’d). Because there was a dispute in the evidence on the essential element of receipt and acceptance which is to be, but has not been, resolved, the Wilsons were not entitled to judgment on the verdict and the court erred in rendering judgment non ob-stante veredicto on the finding that the oral contract was violative of the statute of frauds.

These determinations lead to an appraisal of the Remmels’ cross-point. It is their declaration that, even assuming the alleged oral contract was at one time enforceable, the judgment non obstante vere-dicto is nevertheless correct because the contract was mutually rescinded when the Wilsons removed the cattle from the feedlot and sold them. In considering the judgment non obstante veredicto from this viewpoint, the evidence must be examined in the light most favorable to the Wilsons, the parties against whom the judgment was rendered. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952). When so examined, the evidence does not conclusively establish that the parties mutually retracted, either by words or actions, the jury-found contract of sale which may or may not be enforceable. The evidence of the conditions under which the cattle were removed does not show as a matter of law that the removal was because the parties mutually agreed to rescind an earlier contract of sale; it merely raised the fact issue of mutual rescission which, as previously noted, may not be settled by judgment non obstante veredicto.

Moreover, the matter of rescission was waived. Because the object of rescission is to wholly or partially defeat, rather than to rebut evidence of, the underlying cause of action, it is, within the meaning of Rule 94, a “matter constituting an avoidance or affirmative defense” that must be pleaded. Although the Remmels pleaded mutual rescission as an independent ground of defense to the alleged enforceable oral contract of sale, they requested no issue thereon and none was submitted to the jury when the defense was not established as a matter of law. Under these circumstances, the defense of rescission was waived, Rule 279, and it will not be considered upon the remand hereinafter ordered.

From what has been written, it follows that the unresolved factual issue of receipt and acceptance, which was not waived, precludes either a judgment on the verdict for the Wilsons or judgment non obstante vere-dicto for the Remmels. Accordingly, the Wilsons’ first two points of error are sustained and their other two points, together with the Remmels’ cross-point, are overruled.

The judgment non obstante veredicto is reversed and the cause is remanded. The trial court will proceed under Rule 279 to resolve the issue of receipt and acceptance as it finds the evidence to be and to render judgment consistent with the finding.

      . All references to sections are to those sections of the Texas Business and Commerce Code (1968).

      . The rules cited are the Texas Rules of Civil Procedure.

      . “ ‘Receipt’ of goods,” as defined in V.T.C.A., Bus. & C. § 2.103(a)(3), “means taking physical possession of them.”

      . “Acceptance” is the subject of V.T.C.A., Bus. & C. § 2.606, which reads in part:
      (a) Acceptance of goods occurs when the buyer
      (1) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or
      (2) fails to make an effective rejection (Subsection (a) of Section 2.602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
      (3) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.