author: COLEMAN, Chief Justice.

text:
    D. R. WAGGONER CONSTRUCTION COMPANY et al., Appellants, v. INTERNATIONAL HARVESTER CREDIT CORPORATION, Appellee.
    No. 16947.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 1, 1977.
    Rehearing Denied Jan. 5, 1978.

      Steven E. Halpin (on appeal only) Houston, for appellants.
    Vinson & Elkins, B. Jeff Crane, Jr., Michael E. Alexander, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a summary judgment for the plaintiff in a cause of action based on a contract. We affirm.

International Harvester Credit Corporation is the assignee of a contract entered into between Stafford International, Inc., and D. R. Waggoner, doing business as Waggoner Construction Company, whereby Waggoner leased from Stafford International, Inc. a crawler tractor with an option to purchase. Waggoner made the payments due under the contract until the crawler tractor was stolen.

The contract provided for 36 monthly rental payments in the amount of $679.77 each and provided for the acceleration of payments in the event of default. Paragraph 7 of the contract provides:

“Lessee, at its own expense, will provide during the term of this lease, before any equipment covered by this lease is used, such insurance of the type and in an amount satisfactory to Lessor as is necessary to insure Lessor for and against any liability or loss for injury or death to any person or persons or for damage to any property resulting from or arising out of the use, possession, or operation by Lessee of any equipment hereby leased. Lessee will keep the equipment insured at its full insurable value against loss or damage to it resulting from collision, fire, or other casualty. Lessee shall deliver to Lessor policies or certificates of insurance naming Lessor as an insured and an agreement by the insuring company not to cancel such insurance without at least ten day notice of Lessor.”
Paragraph 11 of the contract provides: “If, any equipment hereby leased is destroyed, lost, or stolen, Lessee shall not be relieved of its obligation to pay the full rental herein provided for the full term of this lease. Any sum paid to Lessor from insurance on such equipment shall be applied to the payment of the accrued and thereafter accruing rental hereunder

In its answer the defendant alleged that at no time prior to entering into the contract were the contents of paragraph number 7 explained to him, and that had he been advised any time prior to signing of the contract that it would be necessary for him to carry insurance under the lease agreement, he would not have entered into the agreement.

It appears from the summary judgment evidence that for some weeks prior to the signing of the lease agreement the crawler tractor was in the possession of Waggoner under an oral rental agreement. During this period of time the insurance on the equipment was provided by the dealer. In opposition to the motion for summary judgment, Waggoner filed an affidavit in which he stated that prior to the signing of the lease agreement no mention had been made of insurance and that it was his understanding that insurance was “part of the deal”. He stated that six weeks after the contract was signed he was “contacted by someone from Stafford International, Inc. and was asked where the insurance contract was on the equipment”. He stated that on being advised that he had to obtain insurance he applied for insurance, but that a policy was never issued prior to the time the tractor was stolen.

In addition to the affidavits attached to the motion for summary judgment and the answer to the motion for summary judgment, the record before us includes depositions and answers to a request for admissions.

In his answer Waggoner sets up as an affirmative defense failure of consideration. To support this defense he asserts that oral agreements made prior to the contract in question relating to the insurance were not incorporated in the contract, and that these promises were relied upon by him when executing the contract. Waggoner does not plead that fraudulent statements induced him to enter into the contract or that by reason of accident, fraud, or mutual mistake the agreements of the parties were not reflected by the terms of the contract.

The summary judgment evidence establishes that Waggoner entered into the contract with Stafford International, Inc., and that it was duly assigned by Stafford to International Harvester. The evidence also establishes default under the contract and the sum of money owed by Waggoner under the terms of the contract. Unless, therefore, the summary judgment evidence raises a disputed fact question on the issue of failure of consideration, the trial court properly granted the motion for summary judgment. Gulf, Colorado and Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958).

The parol evidence rule is not a rule of evidence, but is a rule of substantive law. When parties have concluded a valid integrated agreement with respect to a particular subject matter, the rule precludes the enforcement of inconsistent prior or contemporaneous agreements. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958).

Since the question of who was required to purchase casualty insurance for the crawler tractor was clearly answered by the terms of the written agreement, testimony that the lessor had previously agreed to furnish such insurance should not have been admitted to contradict the clear terms of the written agreement and if admitted into evidence, the prior agreement could not be enforced.

Moreover, there is no evidence that the lessor expressly agreed in writing or orally to furnish insurance on the equipment after the written lease agreement was signed. There is no evidence that prior to the signing of the written lease agreement the lessor orally represented that lessee would not be required to furnish insurance. No issue of fact has been raised by the evidence to support the defense of failure of consideration for the written lease agreement.

The judgment is affirmed.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    John B. WILLIAMS, Appellant, v. W. W. WILLIAMS et al., Appellees.
    No. 5755.
    Court of Civil Appeals of Texas, Waco.
    Dec. 8, 1977.
    Rehearing Denied Jan. 5, 1978.

      Lawrence E. Meyers, Law Offices of Max E. Clark, Fort Worth, and John B. McNamara, John B. McNamara, III, McNamara & McNamara, Waco (On Appeal Only), for appellant.
    James A. Showers, Martin, Showers & Smith, Hillsboro, for appellees.
   OPINION

JAMES, Justice.

This is a suit by Plaintiff-Appellees W. W. Williams et al. against Defendant-Appellant John B. Williams to establish or impress a constructive trust upon a tract of 206 acres of land located in Hill County, Texas. After trial by jury the trial court entered judgment in favor of Plaintiff-Ap-pellees impressing a constructive trust on the subject property and adjudicating the respective undivided interests of the parties in the subject land, from which Defendant-Appellant John B. Williams appeals. We affirm.

The parties both Plaintiffs and Defendant are all the heirs at law of J. J. Williams and his wife Dee Williams, both deceased. The subject land was part of the community estate of J. J. and Dee Williams, who had born to their marriage ten children who lived to adulthood, to wit, Lawton Williams, James J. Williams, Jr., Jack C. Williams, De Anna Shamburger, John B. Williams, Geraldine Horn, Otis G. Williams, Fred Williams, W. W. Williams, and J. G. Williams. At the time of trial three of the children had died each leaving heirs: Lawton Williams, leaving his widow, Mamie Williams and their daughter, Betty Joyce Williams; James J. Williams, Jr., leaving his widow, Virginia B. Williams and two sons, James L. Williams and George W. Williams; and Otis G. Williams, leaving only his son, Michael Don Williams. All of the hereinabove named living heirs at law of J. J. and Dee Williams were parties to this suit except Jack C. Williams who conveyed his interest prior to trial to W. W. Williams. All of said heirs (other than Jack C. Williams) were Plaintiff-Appellees herein except John B. Williams who is the Defendant-Appellant.

J. J. Williams died intestate in 1949. His widow, Dee Williams, died intestate on October 4, 1967. Although Appellant produced during trial a copy of an instrument purporting to be a will of Dee Williams, there was never any proof offered as to the authenticity of the instrument, it was never probated, and was not admitted in evidence in this trial.

As stated Plaintiff-Appellees brought this suit against Defendant-Appellant John B. Williams to establish a constructive trust upon the subject land and for an adjudication of their asserted respective undivided interests in said land.

Trial was had to a jury, which found:

(1) That at the time of the deed from Dee Williams to John B. Williams dated November 19, 1956, there existed a confidential relationship between the said Dee Williams (mother) and John B. Williams (son).

(2) That said deed from Dee Williams to Defendant John B. Williams was induced by the agreement of John B. Williams to hold title to the property conveyed therein for the benefit of Dee Williams during her life and upon her death to divide the remaining property among her children.

(3) The Defendant John B. Williams held peaceable and adverse possession of the land in controversy, continuously cultivating, using and enjoying the same and paying taxes thereon, and claiming under a deed or deeds duly registered, for a consecutive period of five years or more prior to April 22, 1975.

(4) Special Issue No. 4 asked the jury: “Did the Plaintiffs know that Defendant was claiming the land in controversy in this suit adverse to them, if he was? Answer ‘yes’ or ‘no’ as to each Plaintiff.” As to each Plaintiff the jury answered “no.” In other words, the jury failed to find that any of the Plaintiffs knew that Defendant was claiming the land adversely to them.

(5) Special Issue No. 5 was submitted conditionally upon a “yes” answer as to any of the Plaintiffs listed in Special Issue No. 4, and therefore was not answered.

(6) Special Issue No. 6 inquired of the jury: “Did the Defendant assert adverse possession, if any, to the property in controversy in this suit against the Plaintiffs, such as was and is of such unequivocal notoriety that the Plaintiffs would be presumed to have notice of such adverse claim and possession? Answer ‘yes’ or ‘no’ as to each Plaintiff.” As to each Plaintiff separately the jury answered “no.” Stated differently, the jury failed to find that the Defendant asserted adverse possession to the subject property against the Plaintiffs of such unequivocal notoriety that Plaintiffs would be presumed to have notice of such adverse claim and possession.

There were eleven other special issues submitted to the jury, all of which were conditionally submitted, which under the above findings were not necessary to be answered, and which were not answered by the jury.

After verdict the trial court entered judgment in favor of Plaintiffs collectively for an undivided nine-tenths (9/ioths) interest in the land, and adjudged Defendant John B. Williams to own an undivided one-tenth Vioth) interest therein, from which judgment Defendant appeals.

Defendant-Appellant asserts error on the part of the trial court as follows:

(1) In failing to render judgment for Defendant-Appellant because the affirmative answer of the jury to Special Issue No. 3 (the five year limitation issue) entitled Defendant-Appellant to judgment;

(2) In rendering judgment for Plaintiff-Appellees because the jury’s affirmative answers to Special Issues Nos. 1 and 2 are separately and collectively not legally sufficient to support the judgment because they are “immaterial and evidentiary issues” which should have been disregarded by the trial court;

(3) In rendering judgment for Plaintiff-Appellees because the answer of the jury to Special Issue No. 3 is in conflict with the jury’s answer to No. 4;

(4) That the judgment is erroneous because the jury’s answer to Special Issue No. 3 is in conflict with that of Special Issue No. 6;

(5) There is no evidence to support the jury’s answer to Special Issue No. 1 to the effect that there was a confidential relationship between Dee Williams and John B. Williams at the time of the deed dated November 19, 1956; and

(6) Lastly, Appellant asserts that the community one-half interest of Dee Williams and the one-tenth interest of W. W. Williams were not conveyed by Plaintiffs to Dee Williams by their deed of June 1956; therefore, such interests could not be subject to any constructive trust.

We overrule all of Appellant’s points of error and affirm the trial court’s judgment.

In June 1956, all of the children of J. J. Williams, then deceased (which of course were also all of the children of Dee Williams, the surviving widow), with the exception of W. W. Williams, conveyed their interest in the subject property to Dee Williams, subject to the understanding that she had made some type of arrangement with one of her sons, the Defendant-Appellant John B. Williams, for him to take control of the operation and maintenance of the property, so as to maximize her income therefrom to support her, to allow her to receive old-age assistance from the State of Texas, and upon her death divide the property among all the children of J. J. and Dee Williams in equal shares. •

Thereafter, by a deed dated June 1956 but recorded in November 1956, Dee Williams conveyed the subject property to John B. Williams subject to the outstanding secured indebtedness against it. There was evidence that after said last-named deed, Dee Williams still considered the property to be hers, and that her son John B. Williams was managing the place for her. Also, there was testimony from all of the Plaintiffs who testified that they considered themselves cotenants.

After the death of Dee Williams in 1967, the Defendant John B. Williams maintained legal title, possession, and kept the income from the property without any accounting therefor to Plaintiff-Appellees. . However, all of this conduct on the part of Defendant John B. Williams, including his possession under the recorded deed, was not considered by Plaintiffs to be adverse to their respective interests, for they felt certain that the property would in due time be divided and therefore none felt the necessity of making an immediate demand. There was testimony from some of the Plaintiffs that Defendant John B. Williams continued to assure them that he was planning on dividing the property among all of them, that is, until 1974. The Plaintiffs testified that it was not until 1974 that they received any type of notice or knowledge that John B. Williams was holding the property in a manner which was hostile to and in contravention of Plaintiffs’ rights. The Defendant John B. Williams testified to the contrary that he made known to Plaintiffs as early as 1967 that he was claiming the place adversely against Plaintiffs.

Plaintiffs testified that as soon as they learned that John B. was claiming the title adversely to them, they sought legal counsel and commenced the instant litigation on April 22, 1975.

By Appellant’s first point he asserts that the jury’s affirmative answer to Special Issue No. 3 in his favor (the five year limitation issue) entitled him to judgment. We do not agree.

In answer to Special Issue No. 3 the jury found that John B. Williams held peaceable and adverse possession of the subject land, continuously, cultivating, using and enjoying the same and paying taxes thereon, and claiming under a deed or deeds duly registered for five consecutive years or more prior to April 22, 1975. The trial court defined “adverse possession” as “an actual and visible appropriation of the land, in person or through a tenant, commenced and continued under a claim of right inconsistent with and hostile to the claim of another, and such that the Plaintiffs (naming each of them) had either actual knowledge that the Defendant had repudiated the title, if any, of the Plaintiffs and that the Defendant was claiming all title to the land as his own or that such adverse possession by the Defendant, in person or by his tenant, was so open, notorious and unequivocal as would put a person of ordinary care and prudence, in the same or similar circumstances as the Plaintiffs, and under the facts and circumstances in this case, upon notice that he had repudiated the title, if any, of the Plaintiffs and that the Defendant was claiming all title to the land as his own.”

Since the jury found there was a confidential relationship between mother Dee Williams and son John B. Williams (Issue No. 1), that the deed from Dee Williams to John B. was induced by John B.’s agreement to hold title to the property for the benefit of Dee Williams during her life and upon her death to divide the remaining property among her children (Issue No. 2), that none of Plaintiffs either knew or by the exercise of reasonable diligence should have known John B. was claiming adversely to them (Issues Nos. 4 and 6), there is no way that Defendant-Appellant could be entitled to judgment because of the jury’s favorable answer to him in Special Issue No. 3.

In view of the jury’s answers to Issues 1 and 2, the ingredients of a constructive trust were established in favor of Plaintiff-Appellees concerning the subject property. This being so, and since Plaintiffs were cotenants with Defendant John B. Williams in the subject land, the burden was upon Defendant John B. Williams to go further than merely to show that he held adversely to Plaintiffs, but also to show a repudiation of the cotenancy relationship, and to bring home to Plaintiffs such repudiation with sufficient notoriety that Plaintiffs would have actual knowledge of such repudiation, or else bring such knowledge to Plaintiffs sufficiently to excite inquiry as to such repudiation. Mills v. Gray (1948) 147 Tex. 33, 210 S.W.2d 985; Todd v. Bruner (Tex.1963) 365 S.W.2d 155. In the case at bar, Defendant-Appellant John B. Williams is in the position of a trustee, in view of the jury’s answers to Special Issues Nos. 1 and 2. The statute of limitation does not begin to run in favor of a trustee and against the cestui until the latter has notice of a repudiation of the trust, and there is no duty on the part of the cestui to investigate at least until the cestui has knowledge of facts sufficient to excite inquiry. By entering into fiduciary relations, the parties consent as a matter of law to have their conduct measured by the standards of the finer loyalties exacted by courts of equity. Courseview, Inc. v. Phillips Petroleum Co. (1957) 158 Tex. 397, 312 S.W.2d 197, 205. For statement of the rule that for a cotenant to establish title by limitation against another cotenant, there must not only be the fact of adverse possession, but also an ouster and repudiation of the cotenancy relationship, with actual or constructive notice of the ouster, see Republic Production Co. v. Lee (Com.App.1938) 132 Tex. 254, 121 S.W.2d 973, 977, opinion adopted. Also see Walton v. Hardy (Waco Tex.Civ.App.1966) 401 S.W.2d 614, NRE (family relatives as cotenants); Miller v. Huebner (Houston 14th Tex.Civ.App.1971) 474 S.W.2d 587, NRE (brother-sister relationship between cotenants); Fain v. Beaver (Waco Tex.Civ.App.1972) 478 S.W.2d 816, NRE (cotenancy among erstwhile friends); and Oak Cliff Bank and Trust Co. v. Steenbergen (Waco Tex.Civ.App.1973) 497 S.W.2d 489, NRE (brother and sister relationship).

In the ease at bar, the jury specifically found that none of the Plaintiffs had knowledge of Defendant’s repudiation of the cotenancy, nor was such repudiation of such unequivocal notoriety that Plaintiffs would be presumed to have notice of such repudiation. These findings are not challenged by Defendant-Appellant. In this state of the record, and in the light of the above-cited authorities, Defendant-Appellant is not entitled to a judgment in his favor because of the jury’s “yes” answer to the five year limitation issue. Appellant’s first point is overruled.

Next, Appellant contends the jury’s answers to Issues No. 1 (confidential relationship between Defendant and his mother) and No. 2 (the deed to Defendant was induced by Defendant’s agreement to hold title for the benefit of his mother and at her death to divide the property among her children) were immaterial and evidentiary issues which are not legally sufficient to support the judgment. We do not agree, and thereby hold that such findings in answer to Issues Nos. 1 and 2 form the basis for a constructive trust to be placed upon the property, with Defendant as trustee and Plaintiffs as cestuis, as well as a coten-ancy relationship between and among the Plaintiffs and Defendant.

Appellant further asserts there is no evidence to support the jury’s answer to Special Issue No. 1, to the effect that there was a confidential relationship between Dee Williams the mother and John B. Williams the son. The record shows ample evidence of such a confidential relationship. After J. J. Williams’ death in 1949, his widow Dee Williams was in poor health and depended heavily upon her son John B. for advice and counsel. At times she had lived in a little house on the back of the home place where John B. and his family lived. John B. managed the farm, which was the old home place and the property in controversy, paid the taxes and expenses incident thereto, paid off the mortgage indebtedness on the place over a period of time, and at his mother’s death he paid her funeral expenses. His mother’s support was derived mainly from income from the farm. We overrule this point, and hold that the record contains ample evidence of a confidential relationship between this mother and son.

Next, Appellant asserts the jury’s answer to Issue No. 3 (the five year limitation issue) on the one hand, is in irreconcilable conflict with the jury’s answers to Issue No. 4 (Plaintiffs had no actual knowledge that Defendant was claiming adversely to them) and Issue No. 6 (Defendant’s adverse possession was not of such unequivocal notoriety that Plaintiffs would be presumed to have notice of Defendant’s adverse possession), and that therefore the judgment cannot stand. We overrule this contention.

Special Issue No. 3 (the five year limitation issue) is general in nature, while Issues Nos. 4 (Plaintiffs' lack of actual knowledge) and 6 (Plaintiffs’ lack of constructive notice) are specific in nature. It has long been held in negligence cases that a specific finding controls over what would otherwise be a conflicting answer to a general finding. Barclay v. C. C. Pitts Sand and Gravel Co. (Tex.1965) 387 S.W.2d 644 at p. 647; Fort Worth and Denver Ry. Co. v. Britton (Fort Worth Tex.Civ.App.1958) 310 S.W.2d 654, NRE; Cunningham v. Suggs (Eastland Tex.Civ.App.1960) 340 S.W.2d 369, 371, NRE; and Bragg v. Hughes (Galveston Tex.Civ.App.1932) 53 S.W.2d 151, no writ. We see no reason why this same rule should, not apply in the case at bar. Therefore we overrule this point of error.

Appellant has other points and conditions. We have carefully considered each and all of same, and overruled them as being without merit.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: McDONALD, Chief Justice.

text:
    Billy Dale MOSELEY, Appellant, v. Trinidad G. RAMOS et al., Appellees.
    No. 5825.
    Court of Civil Appeals of Texas, Waco.
    Dec. 8, 1977.

      M. Scott Stehling, Law Offices of Edgar A. Wallace, Kerrville, for appellant.
    Thomas L. Even and Peter Y. Henry, San Antonio, Sam McCollum, III, Brady, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Moseley from judgment plaintiff take nothing in a Bill of Review. (The judgment recites that it is based on two orders granting summary judgment plaintiff take nothing).

Plaintiff Moseley filed his petition for Bill of Review and New Trial in cause 73-CI-9932 wherein Trinidad G. Ramos and Catarina Ramos, represented by Attorney Franklin Y. Wright sued him for damages caused by Moseley running into the rear of the Ramos’ car.

Plaintiff further joined Attorney Wright and the Commercial National Bank of Brady, as defendants, asserting they owned an undivided interest in the judgments plaintiff seeks to void.

Moseley alleged he was served with the Ramoses’ petition September 20, 1973, which alleged Moseley negligent in causing an automobile collision with the Ramoses on May 8,1973 in San Antonio, and prayed for damages of: $875. to the Ramos car; $176.80 for car rental; $7,500. pain and suffering to Trinidad; and $8,700. pain and suffering to Catarina.

Plaintiff alleged he “did not recall seeing the citation” commanding him to answer before Monday after 20 days from service; that he filed no answer; and that on October 26, 1973 an interlocutory default judgment of liability was entered against him.

He further alleged Trinidad Ramos was “totally or partially” at fault in causing the collision; that on May 19, 1973 he had received a letter from Ramos’s attorney stating that such attorney’s investigation revealed Moseley at fault; that Moseley believed the claim to be frivolous; and believed the matter dropped as he heard nothing further for 31/2 months when he received the petition; that the action of the Ramoses in seeking the exorbitant amount of $17,251.80 damages further convinced him the claim was frivolous; so he filed no answer and interlocutory default judgment of liability was rendered against him.

Moseley alleged the next correspondence he had from Attorney Wright was a letter sending him a copy of an order setting the case for trial for amount of damages, for February 5,1974; that he appeared at such hearing and Attorney Wright told him “an interlocutory default judgment had been taken against him; that he no longer could sue the Ramoses; and responsibility for the collision was already established”; that Wright promised to send him a list of damages and Moseley agreed to make an initial payment of $200. and pay the balance at $100. per month; that on February 5, 1974 Attorney Wright sent him an itemized list showing expenses of $1,337.30 alleged by the Ramoses as attributable to the collision. Qn March 25 Moseley received a letter from Attorney Wright sending copy of order setting his case for April 16, 1974. On April 12, Moseley sent his initial payment of $200. to Wright and the Ramoses. No trial was held. On June 11, Moseley received copy of order setting the case for July 18. On July 16 Moseley made a $100. payment. No trial was held. On July 13 Moseley made a $100. payment; on August 7 he made a $100. payment; on September 16 he made a $100. payment; on November 29 he made a $209. payment. On December 5, an order was sent Moseley advising the case was set for January 27. On December 17 Moseley made a $100. payment. On January 27, 1975 the Ramoses announced ready; Moseley did not appear; and on February 3,1975 the trial court rendered default judgment against Moseley for $17,251.80.

Moseley further alleged he agreed with Attorney Wright to pay $1,337.30 in satisfaction of the Ramos claim; had paid $907.; and under the circumstances was reasonable in relying on Wright to notify him if he was dissatisfied with Moseley’s payments and that trial had been reset.

Moseley alleged he was not advised of the $17,251.80 default judgment for several months after it was taken; had tried to handle the matter without an attorney; that on May 29, 1975 his assets in amount of $986.43 in the Brady Bank were garnished by the Ramoses; that on December 30, 1975 his drivers license was suspended upon motion of the Ramoses and Wright; whereupon he retained an attorney and filed this petition for bill of review and new trial on the $17,251.80 judgment; sought actual damages of $1,893.43 against the Ra-moses; $907. actual damages plus punitive damages against Attorney Wright; and further prayed; judgment in the garnishment suit be held void; and the Texas Department of Public Safety be ordered to release suspension of his drivers license.

The Ramoses and Attorney Wright filed motion for summary judgment asserting plaintiff’s pleadings show negligence on his part in allowing the default judgment to be taken against him, and that movants were entitled to summary judgment as a matter of law.

Attorney Wright filed an additional separate motion for summary judgment asserting plaintiff failed to state a cause of action against him; and that he was entitled to summary judgment as a matter of law.

The trial court by order dated January 7, 1977 granted the joint motion of the Ra-moses and Wright’s motion and decreed Moseley take nothing as to the Ramoses and Wright; and by separate order dated January 7, 1977 granted Wright’s separate motion, and decreed Moseley take nothing as to Wright.

Thereafter on May 5,1977 the trial court rendered “Final Judgment” reciting he had granted defendants’ two motions for summary judgment on January 7, 1977; and decreed Moseley take nothing as to Trinidad Ramos, Catarina Ramos and Franklin Y. Wright; (and further decreed the Brady Bank take nothing from Moseley).

Moseley appeals on one point: “The District Court erred in granting summary judgment for defendants Franklin Y. Wright, Trinidad G. Ramos and Catarina Ramos”.

A bill of review is an equitable proceeding designed to prevent manifest injustice. Before a litigant can successfully set aside a final judgment by bill of review he must allege and prove, within the time allowed, 1) a meritorious defense to the cause of action alleged to support the judgment; 2) which he was prevented from making by fraud, accident or wrongful act of the opposite party; 3) unmixed with any fault or negligence on his own part. French v. Brown, Tex.S.Ct., 424 S.W.2d 893. Since the trial court rendered summary judgment plaintiff Moseley take nothing by his bill of review plaintiff is required only to have alleged the 3 requisites for a bill of review, supra.

Summary judgment should not be granted, and if granted should be affirmed only if the summary judgment proof establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., Tex.S.Ct., 450 S.W.2d 827. All burdens are on the movant. Swilley v. Hughes, Tex.S.Ct., 488 S.W.2d 64. A party opposing the motion for summary judgment is not required to establish his right to prevail. Glenn v. Prestegord, Tex.S.Ct., 456 S.W.2d 901; Lewter v. Dallas County, Tex.Civ.App. CCA (Waco) NRE, 525 S.W.2d 885; Watts v. Everett, Tex.Civ.App. CCA (Waco) NWH, 543 S.W.2d 14.

As to the October 26,1973 interlocutory default judgment of liability Moseley alleged a meritorious defense, but totally failed to allege that he was prevented from making such defense by fraud, accident or wrongful act of the Ramoses; and his allegations affirmatively show that he was negligent in not filing an answer.

As to the February 3, 1973 default judgment awarding the Ramoses damages of $17,251.80, we think Moseley alleged a meritorious defense, which he was prevented from making by the wrongful act of the opposite party unmixed with negligence of his own. He alleged he had agreed with Attorney Wright to pay $1,337.30 in satisfaction of the Ramoses’ claim; that he had paid $907. on such amount, and under the circumstances detailed it was reasonable to rely on Wright to notify him if he was dissatisfied with Moseley’s payments, and that the trial had been reset.

The summary judgment cut Moseley off from an opportunity to prove such allegations, and was erroneous.

Assuming a jury believed that Moseley settled the Ramos claim with Wright by agreeing to pay $1,337.30 commencing with a $200. payment; and $100. each month thereafter; the Ramoses accepted the $200. initial payment on April 12; and at $100. per month the total would not have been due to be paid off until March of 1975. We think the allegations raise fact issues as to time for payment waiver and estoppel, which precluded summary judgment.

And the Ramoses took judgment for $17,-251.80; not even giving Moseley credit for the $907. he had paid to the Ramoses.

If Moseley’s allegations be supported by evidence believed by a finder of fact; the $17,251.80 judgment represents a manifest injustice; just such situation as the equitable proceeding of bill of review was designed to prevent. And Moseley is entitled to have a finder of fact determine if he was guilty of negligence under the circumstances in permitting the default judgment to be taken against him, and not be cut off by summary judgment.

The allegations against Attorney Wright allege no cause of action; however, summary judgment in his behalf was not proper because same precluded exceptions by Attorney Wright so that plaintiff might have had opportunity to amend his pleadings and state a cause of action. Texas Department of Corrections v. Herring, Tex.S.Ct., 513 S.W.2d 6-9.

The “final judgment” appealed from of May 5, 1977 is reversed and remanded.

REVERSED and REMANDED.


author: EVANS, Justice.

text:
    Marcella Paley Kaye STERN, Appellant, v. Eunice S. REASS et al., Appellees.
    No. 16958.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 8, 1977.
    Rehearing Denied Jan. 5, 1978.

      Marvin Schulman, Houston, for appellant.
    Murr & Mills, Jack W. Mills, Houston, for appellees.
   EVANS, Justice.

The appellees, Eunice S. Reass and Joy S. Gilbert, surviving children of George and Irene Stern, both deceased, brought this action against the appellant, Marcella Paley Kaye Stern, the second wife of George Stern, seeking a declaratory judgment that the will jointly executed by their parents was mutual and contractual and to establish a constructive trust on the properties held by George Stern at the time of his death. The trial court rendered a summary judgment granting the relief sought by the ap-pellees, and this appeal is from that judgment.

The summary judgment proof shows that the appellees’ parents, George and Irene Stern, executed a joint will on October 20, 1967 which provides that the survivor was to have a life estate in:

“all the rest and residue of the estate of every description, real, personal or mixed, which either or both of us may own, regardless of whether such estate is separate or community property and including all such property which may now be owned by both of us or either of us and that which may be hereafter acquired by either or both of us . . . ”

The will further provides that upon the death of the survivor:

. . we give, will, bequeath and devise all of the said estate which may then be remaining in his or her hands, either in its original form, or in such form as it may exist at the time of the death of such survivor of us, to our two (2) children . . . share and share alike, in fee simple.”

Irene Stern died in 1968 and her surviving husband, George Stern, probated her will and qualified as executor of her estate. The Inheritance Tax Return filed by Mr. Stern, as executor of the Estate of Irene Stern, deceased, evidences his claim of a life estate under her will.

In 1970, approximately two years following Irene Stern’s death, George Stern married the appellant, and he then executed a second will leaving all of his estate to the appellant.

In opposition to the appellee’s motion for summary judgment, the attorney for the appellant, who had prepared both the 1967 will and the 1970 will, and who had represented George Stern in the probate of the 1967 will and the appellant in the probate of the 1970 will, filed an affidavit in which he states that it was “the desire” of George and Irene Stern:

“that the property comprising the estate of the first to die would be devised to the survivor, it was further their desire that if they died in a common disaster or in a close time one to the other, that the property would pass to their children.”

In this affidavit he further states:

“I suggested . . . that they consider leaving a life estate to the survivor with the remainder to their children. This was done solely to create an additional statutory exemption for Texas Inheritance Tax purposes . . . The form of the Will was devised by me and I drew a joint Will solely as a convenience and in an effort to minimize the cost of the instrument . . . ”
At no time did the parties discuss or enter into any contractual agreement regarding this Will . . . and no agreement was made between the two of them that they would not at any time change, alter, modify or revoke the Will. Had there been any contractual agreement between the parties to devise property in this manner and never to revoke, modify or alter the Will, I would have added language stating that the disposition was in conformity to a contract to devise property and set such statement out in the Will.”

It is appellant’s position that the summary judgment proof does not establish, as a matter of law, that the 1967 will was mutual and contractual, and that the affidavit of her attorney raises an issue of material fact precluding summary judgment.

The dispositive provisions of the joint will are clear and unambiguous and evidence a comprehensive plan for the disposition of the joint makers’ entire estate. Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954). The terms of the will itself clearly establish the agreement of the testator and the testatrix to dispose of all property then owned by them and to leave their joint will unrevoked after the death of the first to die. Their corresponding promises constitute a valid consideration for their mutual contract. Leopold v. Sochat, 303 S.W.2d 840 (Tex.Civ.App.-Fort Worth 1957, writ ref’d n. r. e.); Bailey, 10 Texas Practice, Wills § 422 (1968).

The cases relied upon by the appellant, notably Magids v. American Title Insurance Co., Miami, Fla., 473 S.W.2d 460 (Tex.1971) and Reynolds v. Park, 521 S.W.2d 300 (Tex. Civ.App.-Amarillo 1975, writ ref’d n. r. e.), are distinguishable. In each of those cases extrinsic evidence was admitted to explain uncertainties with respect to the parties intent which was not ascertainable from a reading of the terms of the instrument. In the case at bar the trial court properly disregarded the affidavit statements which were at variance with the express terms of the will, and held, as a matter of law, that the will was mutual and contractual. Doherty v. Humphrey, 424 S.W.2d 617 (Tex.1968); Vickrey v. Gilmore, 554 S.W.2d 36 (Tex.Civ.App.-Waco 1977, no writ).

Moreover, even if the statements of appellant’s attorney were otherwise admissible, they constitute his mere conclusions on the question of whether the parties entered into a contractual agreement regarding their will. The attorney’s statements as to the “desires” of his clients, his suggestions to them prior to drafting the will, and his speculation as to how he would have drawn the instrument had there been a contractual agreement between the parties do not raise fact issues on the question of whether an agreement was actually made. Hossley v. Roadway Express, Inc., 419 S.W.2d 396 (Tex.Civ.App.-Beaumont 1967, writ ref’d n. r. e.); Leach v. Estate of Cassity, 279 S.W.2d 630 (Tex.Civ.App.-Fort Worth 1955, writ ref’d n. r. e.).

The remaining question for this court’s determination is whether the trial court properly established a constructive trust with respect to certain properties held by George Stern at the time of his death.

The affidavits filed in opposition to the appellee’s motion for summary judgment indicate that George and Irene Stern owned certain properties as joint tenants with right of survivorship. It is appellant’s position that title to these properties did not pass under the joint will, but rather by virtue of the survivorship contract, and that such title was unaffected by the contractual nature of the will. It is also the appellant’s contention that certain fund shares, the subject of a declaration of trust created by George Stern, were not affected by the 1967 will because George Stern revoked the trust after his first wife’s death and created a new trust naming his second wife as beneficiary.

At the death of Irene Stern, the rights of George Stern, as a life tenant, and the rights of the appellees, as remainder-men, became fixed. Murphy v. Slaton, supra. After the death of one of the parties to a mutual will, the effective revocation of the will may be prevented. Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957). The contractual provisions of the joint will extended to all properties owned by the joint makers and to all properties which were thereafter acquired by either or both of them. Thus, the properties which they held as joint tenants with rights of survivorship were subject to the contractual provisions of their will, as were their interests in the fund shares which constituted the res of the declaration of trust. After the death of his first wife, George Stern held only a life estate in the properties which were subject to the contractual provisions of their joint will. He, therefore, lacked authority to make a gift of such properties to his second wife. Bridges v. First Nat’l Bank in Dallas, 430 S.W.2d 376 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.); Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (1946).

The trial court’s judgment is affirmed.


author: ROBINSON, Chief Justice.

text:
    In the Interest of V._ M._ B._, III, a minor child.
    No. 8757.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 9, 1977.
    Rehearing Denied Jan. 3, 1978.
    Jones, Trout, Flygare & Moody, Chauncey Trout, Lubbock, for appellant.
    Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellee.
    Leota Heil Alexander, Lubbock, as guardian ad litem for minor child.
   ROBINSON, Chief Justice.

Our November 30, 1977, opinion is withdrawn sua sponte and, in lieu thereof, this opinion is substituted.

This is an appeal from a summary judgment denying an unwed father legitimation and custody of his son. The father has never seen the son who was born in 1971. Defendants are the child’s mother, the maternity home to which the mother had executed affidavits of relinquishment and consent for adoption, and the prospective adoptive parents. The minor child is not a party to the suit and was not served with citation. The trial court appointed a guardian ad litem for the minor. The prospective adoptive parents were not served, but they answered and filed a petition for adoption of the child. The maternity home filed a cross claim asking that the paternal rights of the petitioner father and the mother be terminated and the home made managing conservator. The mother did not answer. The trial court severed the petition for adoption and the maternity home’s cross action for termination and managing conservatorship from the suit for legitimation and custody. It held that the question of legitimation had been determined adversely to the father by a court of competent jurisdiction of a foreign state and that the decision was res judicata of the issues presented in this suit for legitimation and custody and entered summary judgment against the father. Affirmed.

The relevant facts are established as a matter of law by summary judgment evidence.

In the fall of 1970. Petitioner father, a resident of New York, lived with the defendant mother, a resident of Oklahoma, for about 2 months while they were both college students in Oklahoma. She became pregnant. Shortly afterwards, the relationship between the father and the mother terminated.

March 17, 1971. Petitioner sued the mother in Oklahoma alleging a common law marriage and seeking a divorce and custody of the unborn child. After a hearing the Oklahoma district court held that the evidence was insufficient to establish a common law marriage.

July BO, 1971. The father graduated from college and returned to his home in New York City.

August 11, 1971. The mother gave birth to a male child at a maternity home in Texas. It is stipulated that petitioner father is the biological father of this child.

August 12, 1971 and August 27, 1974. The mother executed affidavits of relinquishment of parental rights and consent for adoption to the maternity home. A few months after the birth of the child the home placed him with prospective adoptive parents and he has remained with them since that time.

November 17,1971. The father filed suit against the mother in an Oklahoma district court asking for a declaratory judgment legitimating the child and seeking orders giving him custody. There was a hearing with testimony in this cause.

November 24, 1971. The father filed suit in Texas seeking a temporary injunction to prevent the home from allowing adoption of the child. All parties agreed that no adoption proceedings would be instituted until after the outcome of the Oklahoma litigation.

April 3, 1972. The United States Supreme Court decided Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Stanley was an unmarried father who had raised his children while living with the children’s mother. On the mother’s death, Stanley’s children were declared wards of the State in a dependency proceeding instituted by the State of Illinois and were placed with court-appointed guardians. The Supreme Court held:

We conclude that, as a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws guaranteed by the Fourteenth Amendment.

September 6, 1972. The “Journal Entry of Judgment” of the Oklahoma district court, denying relief to the father in his November 17, 1971, suit for legitimation and custody, was filed. The judgment recites that a hearing, at which testimony was taken, was held on April 5, 1972, and that findings of fact and conclusions of law were made on May 1, 1972.

The court found, among other things, that the child had never been in Oklahoma; that the law of the State of New York, which it found to be the father’s domicile, should govern the question of legitimation; that the best interest of the child would not be served by legitimation; and that the court had no jurisdiction to enter any orders in the cause. The father appealed to the Court of Appeals of Oklahoma.

August 14, 1973. The Court of Appeals of the State of Oklahoma, District No. 1, affirmed the judgment of the Oklahoma district court.

The Oklahoma appellate court held that the question of legitimation should be determined under the law of New York, that the marriage of the parents of the illegitimate child was necessary for legitimation under New York law; that the acts of the father were insufficient to bring him within the requirements of the New York law.

January 1,1974. The Texas Family Code went into effect.

Section 11.01(3) of the code provides: “Parent” means the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the parent-child relationship has been terminated.

Section 13.01 provides, as follows, for voluntary legitimation upon the filing of a statement of paternity executed by the unwed father:

(b) If a statement of paternity is filed with the State Department of Public Welfare, the father, the mother, or the department may institute a suit for a decree establishing the child as the legitimate child of the person executing the statement. On the consent of the mother, the managing conservator, or the court, and on the filing of the statement of paternity with the petition, the court shall enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity.

In its opinion in In the Interest of K, 535 S.W.2d 168 (Tex.1976) (U.S.Cert. den.) the Texas Supreme Court construed the foregoing provision relating to consent to legitimation by the court as follows:

If the court must consent to the matter, discretion is thereby conferred upon the judge to see that the one who would assume parental rights and responsibilities is fit to do so and that a decree declaring this relationship is made only if it is in the best interest of the child.

April 29, 1974. The father filed the cause before us in Texas district court again seeking legitimation and custody.

August 15, 1974. The Texas court appointed a guardian ad litem to represent the interest of the child in this cause.

April 30,1975. A year after the suit was filed, the father mailed an affidavit of paternity to the Department of Public Welfare. The father and the home have stipulated “that the statement may be considered as having been filed prior to the institution of the suit.”

September 1, 1975. The Family Code was amended to provide for voluntary legitimation in the following language:

Section 13.21. Voluntary Legitimation
(a) If a statement of paternity has been executed by the father of an illegitimate child, the father or mother of the child or the State Department of Public Welfare may file a petition for a decree designating the father as a parent of the child. The statement of paternity must be attached to the petition.
(b) The court shall enter a decree designating the child as the legitimate child of its father and the father as a parent of the child if the court finds that:
(1) the parent-child relationship between the child and its original mother has not been terminated by a decree of a court;
(2) the statement of paternity was executed as provided in this chapter, and the facts stated therein are true; and
(3) the mother or the managing conservator, if any, has consented to the decree.
(c) The requirement of consent of the mother is satisfied if she is the petitioner. If the entry of the decree is in the best interest of the child, the court may consent to the legitimation of the child in lieu of the consent of the mother or managing conservator.
(d) A suit for voluntary legitimation may be joined with a suit for termination under Chapter 15 of this code.
(e) A suit under this section may be instituted at any time.

In the case before us the trial court granted the maternity home’s motion for summary judgment. The court denied the father legitimation and custody and held that the Oklahoma district court decree was res judicata on the question of legitimation. The father has appealed from that summary judgment.

In Hammonds et ux. v. Holmes et al., 559 S.W.2d 345, Tex.1977, the Court stated:

(A) question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris, is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a different cause of action. State of Oklahoma v. State of Texas, 256 U.S. 70, 86, 41 S.Ct. 420, 65 L.Ed. 831 (1920).

The doctrine of res judicata extends to the questions of law and issues of fact and binds not only the parties to the first suit but also those in privity who claim under a party. Swilly v. McCain, 374 S.W.2d 871 (Tex.1964); Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (Tex.1946); Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App.-Corpus Christi 1966, writ ref’d n. r. e.). Moreover, the former judgment is decisive of all questions raised and all questions that should have been raised. White v. Burch, 33 S.W.2d 512 (Tex.Civ.App.-Fort Worth 1930, writ ref’d).

It is undisputed that plaintiff had a hearing in the Oklahoma legitimation suit at which hearing he and two other witnesses testified. The subject matter was the same as that before us and the parties were the same or in privity with those before us.

The father, however, urges that he is entitled to a hearing on his parental fitness under the holding of Stanley v. Illinois, supra.

It is significant that Stanley was decided two days before the hearing in Oklahoma district court and more than 6 months before the judgment denying the father a declaratory judgment of legitimation was entered. The appeal of that cause was not decided for well over a year after Stanley was decided. Thus, the father had an opportunity to assert in the Oklahoma court any rights that Stanley may have given him.

The rule of res judicata bars litigation of issues connected with a cause of action or defense which with the use of reasonable diligence might have been tried in a former trial as well as those which were actually tried. Chem-Gas Engineers Inc. v. Texas Asphalt & Refining Co., 398 S.W.2d 143 (Tex.Civ.App.-Waco 1965, no writ).

Further, it is settled that the principles of res judicata apply whether the first court determined the question before it correctly or erroneously. White v. Swift & Co., 187 S.W.2d 127 (Tex.Civ.App.-Austin 1945, writ ref’d); Zavala-Dimmitt Counties Water Imprv. Dist. No. 1 v. McMillian, 127 S.W.2d 364 (Tex.Civ.App.-San Antonio 1939, writ ref’d); Wetherell v. Santex Gas & Oil Co., 93 S.W.2d 543 (Tex.Civ.App.-El Paso 1936, writ ref’d).

Petitioner-father also contends that the Oklahoma decree cannot be res judicata because of the court’s conclusion that it did not have jurisdiction to enter any order in the cause. In that connection we find that the father had asked for two things in his petition—(1) a declaration of legitimation and (2) specific orders on custody. Reading the decision as a whole it is apparent that the trial court ruled on the merits of the legitimation question, but declined to enter an order on custody after finding that the child had never been in the State of Oklahoma. Likewise, the opinion of the Oklahoma appellate court reaches the merits of the question of legitimation.

Judgments of courts of record should be so construed and empowered as to give them every quality of finality of which they are susceptible, and their dignity and integrity should be given such effect as to bar further litigation upon the matters brought into controversy in the suit in which the decree is entered, or in which any matter material to the suit could properly have been litigated. Stephenson v. Gaines, 291 S.W. 602 (Tex.Civ.App.-San Antonio 1926, no writ).

We conclude that the Oklahoma district court judgment adverse to the father is res judicata of the father’s petition for legitimation before us.

In the absence of legitimation, the father cannot assert parental rights. The summary judgment evidence establishes as a matter of law that the father, albeit through no fault of his own, had no relationship with his child which would permit one, not a parent, to claim custody against the maternity home to whom the sole parent executed affidavits of relinquishment of parental rights and consent for adoption.

The judgment of the trial court is accordingly affirmed.

DODSON, J., not sitting.


text:
    Dougal C. POPE, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 5794.
    Court of Civil Appeals of Texas, Waco.
    Dec. 15, 1977.
    Rehearing Denied Jan. 5, 1978.

      Edward W. Engel, Pope & Waits, Houston, for appellant.
    Otis H. King, City Atty., Roy F. Martin, III, Asst. City Atty., Houston, for appellee.
   OPINION

JAMES, Justice.

This is a case involving the constitutional validity of a city ordinance. The trial court held in favor of the City, and that the Plaintiff-Appellant take nothing. We affirm.

Plaintiff-Appellant Dougal C. Pope brought this suit against the Defendant-Ap-pellee City of Houston seeking injunctive relief, to have certain ordinances of the City relating to abatement of health nuisance declared unconstitutional as a violation of due process, and to have liens removed from two pieces of Plaintiff Pope’s property.

Trial was had to the court without a jury after which the trial court entered judgment that Plaintiff Pope take nothing, from which he appeals.

Plaintiff-Appellant contends that the city ordinances in question violate his right to due process of law, both in their provisions wherein he says they deny him a hearing, and in the manner of application and enforcement on the City’s part. We overrule these contentions and affirm the trial court’s judgment.

Plaintiff is the owner of several parcels of real estate located within the City of Houston, some of which are unimproved or vacant lots. Two pieces of such property are involved in this suit, to wit, one piece being located in the 7200 block of Saunders Street, and the other being located at the southeast corner of Charles and Exeter Streets.

Plaintiff testified that he received a letter from the City dated April 5, 1971, stating that he had ten days to clean the weeds, brush, and rubbish off the Saunders Street property, and that subsequently thereto he went out and had the property cleaned up. In addition to weeds and brush on this property, there was a burned-out house thereupon. Thereafter, he received a second letter from the City dated July 20, 1971, telling Plaintiff that he had taken no action to clean up the Saunders Street property in response to the City’s first letter, so that the City had cleaned the lot up, for which Plaintiff owed $110.00. Said second letter further advised Plaintiff that if he did not pay this $110.00 to the City within sixty days from the date of this second letter that the City would file a certified statement in the County Clerk’s office which would entitle the City to a lien on said Saunders Street property. Plaintiff did not pay the $110.00, whereupon the City filed the certified statement after the expiration of the sixty-day period.

Plaintiff complains that prior to the City’s decision that his property was a nuisance, and prior to the City’s fixing of a lien on the Saunders Street property, he never received a notice for any hearing to be had concerning such matter, nor was he afforded any hearing therefor, short of filing suit in the District Court.

Plaintiff further testified that he received a letter from the City dated June 19, 1972 stating that he was allowed ten days in which to clean up the property on the corner of Charles and Exeter Streets; that thereafter, to wit, by the City’s letter of August 24,1972, the City informed him that since he had not cleaned up said lot, the City had done so, and the charge therefor was $50.00; that if he did not pay the City the $50.00 within sixty days that the City would fix a lien against this property in the same manner hereinabove stated concerning the Saunders Street property. Plaintiff likewise complains of a lack of notice and hearing concerning the nuisance decision and fixing of the lien on the Charles-and-Exeter Streets property, which he asserts constituted a violation of due process.

The ordinances in question are City of Houston Code of Ordinances, Chapter 21, Abatement of Health Nuisances, Sections 21-50 through 21-58, passed pursuant to Article 11, Section 5, of the Texas Constitution, and Article 1175, Vernon’s Annotated Texas Statutes.

Article 1175, Section 19 in its pertinent parts provides:

“Each city shall have the power to define all nuisances and prohibit the same within the. city_”

Section 34 of Article 1175 provides: (The city shall have power).

“To enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove all nuisances and to preserve and enforce the good government, order and security of the city and its inhabitants.”

Without detailing the provisions of the ordinances in question, they in effect authorize the procedure followed by the City in connection with Plaintiff-Appellant Pope’s two pieces of property as hereinabove referred to, That is to say, whenever the existence of a nuisance caused by “weeds, brush, rubbish or other objectionable, unsightly or insanitary matter” upon real property in the City comes to the attention of the City’s director of public health, that the City is entitled to follow the procedure which they employed in connection with Mr. Pope’s two pieces of property.

Plaintiff-Appellant further complains that as a matter of policy and procedure the City takes no action on any pieces of property which may constitute a nuisance unless a complaint is filed; in other words, in the absence of a complaint, the City takes no action concerning such nuisances; that there are other pieces of property in the vicinity of Plaintiff’s properties in question which have weeds and brush as high as that on Plaintiff’s properties, as well as in other parts of town, against which the City has taken no action. Plaintiff contends that this policy and manner of enforcement of these ordinances constitute an unlawful discrimination against him. We overrule all of Plaintiff’s contentions.

We are of the opinion and hold that the City ordinances in question are in harmony with the State and Federal Constitutions and Article 1175 V.A.T.S., and provide for a reasonable and proper exercise of the police power of the City. See Town of Ascarate v. Villalobos (1949) 148 Tex. 254, 223 S.W.2d 945; City of Waxahachie v. Watkins (1955) 154 Tex. 206, 275 S.W.2d 477; City of Houston v. Johnny Frank’s Auto Parts Co. (Houston, 14th Tex.Civ.App.1972) 480 S.W.2d 774, NRE.

Plaintiff-Appellant contends that he was not afforded a notice and hearing before his respective properties were each found by the City to constitute a nuisance, nor was he afforded a notice and hearing before the lien was affixed to each piece of property. We cannot agree with this argument, because he admits that he received a written notice each time giving him ten days in which to clean up, and then he thereafter received another written notice each time giving him sixty days in which to pay the charges for the City’s clean-up before the perfecting of each of the City’s liens. Then finally, after the liens were perfected, Plaintiff-Appellant had the right to file suit in the District Court for judicial review of the City’s actions, and did do so. In our opinion the ordinances in question apply to all persons similarly situated throughout the City, and are a reasonable exercise of the police power of the City. We believe Plaintiff-Appellant was afforded ample notice and opportunity to be heard, so that he suffered no denial of due process. Moreover, such city ordinances are not unconstitutional merely because they operate as a restraint on private rights of persons or property, or result in financial loss to individuals. 40 Tex.Jur.2d, “Municipal Corporations,” Sec. 338, pp. 103, 104, and the cases therein cited.

It is a matter of common knowledge that a vacant lot that is allowed to accumulate weeds, brush, and/or rubbish may well constitute a health hazard nuisance for reasons that it may be a fire hazard, harbor rodents, mosquitoes, wild or rabid animals, and depreciate property values of neighboring property. We believe that all of these things are proper objects and considerations for the exercise of the police power.

We are unable to see merit in Appellant’s contention that he has been denied due process because of the City’s policies or manner of enforcement of the ordinances in question. As stated, Appellant asserted that the City investigated and took action on these matters only when a complaint was made. Assuming this is true, this policy or procedure was uniformly applied to all properties similarly situated. The City may not be able to deal with all such lots at the same time it deals with Plaintiff’s properties. In our opinion, the fact that there are other lots in the City with weeds and brush as high as Plaintiff’s which have not been acted upon by the City does not excuse Plaintiff or render him immune from the reasonable and proper exercise of the City’s police power.

We have carefully considered all of Plaintiff-Appellant’s points and contentions, and overrule same as being without merit.

Judgment of the trial court is affirmed.

AFFIRMED.


author: DUNAGAN, Chief Justice.

text:
    H. Wayne PIERSON et al., Appellants, v. PALESTINE CONTRACTORS, INC., Appellee.
    No. 1068.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 15, 1977.
    Rehearing Denied Jan. 5, 1978.

      Charles H. Clark, Tyler, for appellants.
    Terry M. Thorn, Paxton, Whitaker & Parsons, James R. Paxton, Palestine, for appel-lee.
   DUNAGAN, Chief Justice.

This case involves a construction of a retirement trust established by appellee, Palestine Contractors, Inc., for the benefit of its employees. The appellants are three individuals who were employees of the ap-pellee until they voluntarily terminated their employment in 1972 and 1973. It was stipulated by the parties that the appellants had a vested interest in the retirement trust at the time of their termination. Upon the termination of employment by appellants, the appellee caused to be issued three annuity policies which it had purchased from Crown Life Insurance Company. These policies do not contain any provisions of nontransferability.

The ownership of the policies was taken in the name of the Palestine Contractors Retirement Trust. Each appellant was named on the policies as the annuitant with their respective wives named as beneficiaries. These policies were then delivered to the appellants.

Appellants requested appellee to transfer ownership of the policies to the appellants. Appellee refused to do so, claiming that the trust instrument did not require such action.

Appellants brought this suit to construe the trust instrument, seeking a judgment of specific performance requiring appellee to transfer ownership of the annuity policies to the names of the appellants. Trial was without a jury and the trial court found for appellee.

We affirm.

All parties agree that the appellants have a vested interest in the benefits of the retirement trust. Vested interest is defined in the trust instrument as “. . . the minimum amount which a participant is entitled to receive under the applicable provisions of the plan . . . .”

Neither side has any pleadings asserting that the trust instrument is ambiguous. The appellants go on to say in their brief that “[Ajppellants do not think there is any ambiguity in this contract . . . The appellee agrees that the instrument is not ambiguous. Since this instrument is not ambiguous, we feel the applicable rules for construction of the instrument are set forth in Brown v. Brown, 245 S.W.2d 995 (Tex. Civ.App.—Amarillo 1954, writ ref’d) at page 997:

“. . . In construing instruments our courts are governed by certain well established rules. A written instrument, not alleged to be ambiguous, must be construed so as to carry out the primary intent of the parties. It must be considered as a whole and given its reasonable, natural and probable meaning. It must be interpreted according to the obvious import of its language without resorting to a subtle or a forced construction. One clause cannot be considered by itself; every clause must be considered with reference to the whole instrument as well as with reference to every other clause. Southern Travelers’ Ass’n v. Wright, Tex.Com.App., 34 S.W.2d 823; Southwestern Life Ins. Co. v. Houston, Tex.Civ.App., 121 S.W.2d 619, error refused; Pagel v. Pumphrey, Tex.Civ.App., 204 S.W.2d 58, writ refused; Green v. Farmers & Merchants State Bank, Tex. Civ.App., 100 S.W.2d 132, writ refused; Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579.”

It is apparent that our primary consideration in construing this instrument must be to determine the intention of the parties. We must gather the intention of the parties from a reading of the entire instrument and not from isolated parts thereof. Wynnewood State Bank v. Embrey, 451 S.W.2d 930, 932 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.); Burrus Mills, Inc. v. Hein, 378 S.W.2d 85, 88 (Tex. Civ.App.—Dallas 1964, writ dism’d); Ervay, Inc. v. Wood, 373 S.W.2d 380, 384 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.).

The following trust provisions are deemed to be relevant to the propriety of action taken by the appellee in this case:

“5-2 METHOD OF PAYMENT OF BENEFITS
(A) OTHER THAN LIFE INSURANCE DEATH BENEFITS—Any vested amount which a participant or his beneficiary may be entitled to receive by reason of the participant’s retirement, death, disability or termination of employment will, in the sole discretion of the trustee, be distributed, in cash or in kind or in some combination thereof, as follows:
(1) . . .
(2)Any fully vested life insurance contracts on the life of and purchased for the sole benefit of said participant will either be:
(A) . . .
(B) Will be converted by the Trustee to a nontransferable annuity (as defined in sub-section 2-l(K) herein) for the benefit of the participant or his beneficiary and of the type set out in sub-paragraph 5-2(A)(3)(c) below, subject to the provisions and any applicable limitations of sections 5-4 and 8-3 thereof, and will then, following the completion of such conversion, be released to the participant or his beneficiary; or

Nontransferable annuity is defined in the trust instrument as:

“(K) Nontransferable annuity is an annuity type of contract wherein no portion of the interest of the owner, if said owner is other than the trust, can be transferred, sold, assigned, discounted or pledged as collateral for a loan or as security for the performance of an obligation or for any other purpose to any person or entity other than to the issuing life insurance company. However, it is specifically provided that such a contract may, at the sole discretion of the Trustee, contain provisions permitting said owner to:
(1) Surrender or pledge any portion of his interest therein to the issuing life insurance company;
(2) Designate the beneficiary to receive the proceeds thereof in the event of his death;
(3) Elect to receive a joint and survivor annuity; or
(4) Said contract may contain other provisions similar to those set out directly above or, in lieu thereof, may contain the provisions set out directly below.
“It is specifically provided that, at the sole option of the trustee, the nontransferable annuity contract may be a non-forfeitable type of contract whereby, in addition to the above restrictions, it is also provided that said owner cannot surrender or pledge any portion of his interest therein to the issuing life insurance company nor modify any of the provisions thereof, with the exception of changing his beneficiary designation, prior to the attainment of his normal retirement age (as defined in Sub-section 5-l(A) hereof) or prior to the attainment of an earlier date as may be selected by the Trustee pursuant to the provisions hereof.”

The appellants contend in their brief that “Nowhere in the agreement is there any indication that when any employee terminates his employment he would receive anything other than present ownership of his vested interest . . . .” From our reading of it, the definition of a nontransferable annuity contained in the instrument clearly contemplates that the trust itself can be the owner of such annuities. The definition goes on to spell out the provisions that may be placed in an annuity “if said owner is other than the trust” (i. e. if the employees were named as owners).

The definition of a nontransferable annuity as contained in the instrument does not clearly define what a nontransferable annuity is if ownership is in the name of the trust itself. By construing the language “if said owner is other than the trust” one could reasonably infer that if the trust is the owner of the annuity there is no need to include the provisions contained in the definition in such annuity contract. This reasoning presupposes the idea that the trustee will act in a manner designed to carry out the trust purposes. Continuing this reasoning, any annuity purchased by the trust in its own name would for purposes of this definition be a nontransferable annuity whether it contained these provisions or not.

On the other hand, this troublesome definition in the trust instrument could be construed in such a manner as to say it does not define any annuity owned by the trust itself, thus placing such an annuity completely outside the scope of the definition.

As we have previously noted, both parties assert this instrument is not ambiguous. This court is confronted by the duty to carry out the intentions of the parties as of the time they entered into such agreement, even though the meaning of such agreement may be in certain particulars unclear. Sale v. Contrail Corporation, 486 S.W.2d 161, 165 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Brewer v. Myers, 545 S.W.2d 235, 237 (Tex.Civ.App.—Tyler 1976, no writ).

When viewed in the context of the entire trust instrument, we feel it is clear that the actions sought by the appellants in this case are not required by the trust instrument. The purpose of this retirement trust as set out in the introduction thereto is to provide for the employees some degree of financial security. The trust clearly provides that one of the methods of distribution available is the purchase of a nontransferable annuity for the “benefit of the participant.” (Emphasis ours.) As we previously discussed, viewing solely the definition of a nontransferable annuity contained in the instrument, it is unclear whether an annuity owned by the trust falls within the definition. However, when viewed in light of the whole instrument it is clear that the parties intended for such an annuity to be included in the definition. In our view, the actions taken on behalf of the trust are a valid exercise of a method of distribution provided for by the trust instrument.

The judgment of the trial court is affirmed.


text:
    Graceil Proctor DOUGLAS, Appellant, v. Napoleon PROCTOR, Appellee.
    No. 5816.
    Court of Civil Appeals of Texas, Waco.
    Dec. 15, 1977.
    Joe B. Phillips and Aloysius M. Wickliff, Houston, for appellant.
    Joe E. Griffith, Crockett, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Graced Proctor Douglas from an order of the trial court appointing Napoleon Proctor guardian of the person and Estate of George Proctor, NCM, and denying her application to be appointed as such guardian. The order further severed Graced Proctor Douglas’s petition for determination of heirship from the instant proceeding.

In 1976 Reedus Proctor, Napoleon Proctor, and Graced Proctor Douglas all filed applications in the County Court of Leon County to be appointed guardian of the person and Estate of George Proctor. George Proctor was alleged to be 93 years of age; to own 30 acres of land; to own 35 head of cattle; and to be of unsound mind. The petitions alleged that Reedus was a nephew; that Napoleon was a brother; and that Graced was a niece and “an adopted daughter by estoppel”.

Thereafter on motion of Graced the proceedings were transferred to the 87th District Court of Leon County.

The District Court in June 1976 appointed W. D. Black as temporary guardian of George Proctor with instructions to sell his cattle and pay his bills at a nursing home.

On May 20,1977 the trial court heard the opposing applications for appointment as guardian of the person and Estate of George Proctor; and by order entered July 15, 1977 found that George Proctor was a person of unsound mind; that Napoleon Proctor was his nearest of kin; and 1) appointed Napoleon guardian of his person and estate; 2) denied the application for appointment of Graced as such guardian; and 3) severed the petition for determination of heirship by Graced as an adopted daughter by estoppel.

Graced Proctor Douglas appeals on 6 points contending:

1) The trial court erred in removing the temporary guardian and appointing a successor guardian. Also the trial court erred in allowing the Clerk to issue letters of temporary guardianship because the temporary guardian failed to qualify according to law.
2) The trial court erred in signing and approving a vague and defective order appointing a successor guardian.
3) The trial court erred in allowing the District Clerk to issue letters of guardianship to Napoleon Proctor as successor guardian because he failed to qualify as such according to law.
4) The trial court erred in granting motion for continuance to appellee and not allowing appellant to complete her case of adoption by estoppel.
5) The trial court erred in not recognizing and following the law of adoption by estoppel in Texas.
6) The trial court erred in refusing to make and file requested findings of fact and conclusions of law.

Section 131 of the Probate Code provides for the appointment of a temporary guardian for persons of unsound mind; and subdivision c provides that such temporary guardianship shall be continued in force for such period of time as the court shall deem in the interest of the estate or person involved. The trial court thus had authority to terminate the temporary guardianship and appoint a successor guardian when it deemed such in the interest of the estate and person involved. Any defect in the prior temporary guardianship is not before us in this appeal.

The order appealed from is not vague and defective.

This appeal is from the order appointing Napoleon Proctor guardian, and whether he properly qualified as such is not before this court.

The issues of whether the trial court erred in granting a motion for continuance in appellant’s case for adoption by estoppel, and in not recognizing and following the Texas law of adoption by estoppel are not before this court because the trial court severed these matters from the appointment of a guardian in his judgment.

Findings of Fact and Conclusions of Law have been filed by the trial court.

All appellant’s points are overruled.

AFFIRMED.


author: HALL, Justice.

text:
    Roger RASBACH, Appellant, v. W. F. MINCHEN, Appellee.
    No. 5853.
    Court of Civil Appeals of Texas, Waco.
    Dec. 15, 1977.

      Henry J. Novak, Jr., Lykos, Bergner & Oberwetter, Houston, for appellant.
    Vernon E. Fewell, Houston, for appellee.
   HALL, Justice.

Appellant Roger Rasbach filed this suit against appellee W. F. Minchen in August, 1971, to recover the balance due under a contract for personal services rendered by appellant for appellee, and for attorney’s fees. The case was dismissed for want of prosecution on May 5,1977. - Appellant filed a motion to reinstate the case on the docket. After a hearing, the court denied the motion on July 29,1977. This appeal resulted. In his single point of error appellant asserts the trial court abused its discretion in denying his motion to reinstate. We overrule this contention, and affirm the judgment.

Findings of fact and conclusions of law were neither requested nor filed. And, the record does not contain a statement of facts. Under these circumstances we must presume that evidence was adduced at the hearing on the motion to reinstate which supported the implied findings upon which the court based its judgment. Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82 (1955); Guthrie v. National Homes Corporation, 394 S.W.2d 494, 495 (Tex.Sup. 1965); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).

The judgment is affirmed.


text:
    Warren CLARK et al., Appellants, v. Barbara SUMNER, Appellee.
    No. 5870.
    Court of Civil Appeals of Texas, Waco.
    Dec. 15, 1977.

      Kirk R. Williams, Geary, Stahl, Koons, Rohde & Spencer, P. C., Dallas, for appellants.
    Robert M. Cady, Dallas, for appellee.
   McDONALD, Chief Justice.

This is an appeal by defendants Clark, et al from judgment in favor of plaintiff Sumner for $1735. actual damages and $1200. exemplary damages, in a landlord tenant case.

Plaintiff Sumner sued defendants Clark, et al alleging plaintiff leased an apartment from defendants; that defendants promised plaintiff would have the quiet use and enjoyment of the leased premises; that the manager of the apartments with intent of harassment and malice opened the door of plaintiff’s apartment and intentionally allowed plaintiff’s dog into the apartment; that plaintiff was not present at the apartment at the time; that the dog damaged plaintiff’s property in the amount of $1735. Plaintiff sought actual and punitive damages.

Defendant answered that plaintiff had breached the lease thereby excusing any further performance by defendants, including continuing to covenant plaintiff’s quiet enjoyment of her premises.

Trial was to a jury which found:

1) Defendants or their agents opened the door to plaintiff’s apartment and allowed the dog to enter.
2) Plaintiff did not allow her dog to be unattended for an extended period of time.
3) Plaintiff’s property was damaged by the dog in the amount of $1735.
4) Defendants or their agents acted intentionally and maliciously in allowing the dog into the apartment.
5) $1200. exemplary damages should be awarded plaintiff.

The trial court rendered judgment on the verdict for plaintiff for $2935.

Defendants appeal on 4 points contending:

1) There is no evidence that any agent of defendants let the dog into the apartment.
2) The award of exemplary damages was improper because there was no pleading or evidence of a tort which would authorize the awarding of exemplary damages.

Plaintiff leased an apartment from defendants. There is evidence that plaintiff’s dog disturbed the neighbors who complained to the apartment manager. The apartment manager asked plaintiff to move. The management then cut off the electricity which controlled the heat to plaintiff’s apartment. The weather was cold, and plaintiff took her children to her parents’ home for the night. Plaintiff’s dog was left on the patio which joins the apartment. The only exit from the patio is into the apartment. Plaintiff only had one key which was in her possession. The management had a key to the apartment. While plaintiff was absent someone let the dog into the apartment from the patio. The dog destroyed $1735. worth of plaintiff’s property. There was nothing missing from the apartment which negated a burglary. There was no direct evidence that defendant’s agents let the dog into the apartment.

The jury found that defendants or their agents opened the door to plaintiff’s apartment and allowed the dog to enter.

Considering the evidence in its most favorable light, considering the evidence and reasonable inferences to be drawn' therefrom, we conclude the evidence ample and sufficient to support the jury’s finding. Transport Ins. Co. v. Mabra, S.Ct., 487 S.W.2d 704.

Plaintiff plead a cause of action based on defendants’ violation of the right of quiet enjoyment which is contractual in nature. Nevertheless plaintiff plead that defendants’ agents did trespass into plaintiff’s apartment and intentionally let the dog into the apartment from the patio.

Punitive damages are not recoverable in actions for breach of ordinary commercial contracts, though the breach be brought about capriciously and with malice. But punitive damages are allowable if a distinct tort is alleged and proved independent of the contract action. McDonough v. Zamora, CCA (San Antonio), 338 S.W.2d 507; Grutcher-Rolfs-Cummings, Inc. v. Ballard, CCA (Corpus Christi) NRE, 540 S.W.2d 380; International Printing Pressman and Assistants’ Union v. Smith, 145 Tex. 399, 198 S.W.2d 729; A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629.

Plaintiff plead and proved an action for breach of contract, accompanied by the commission of a tort, and same was sufficient to authorize punitive damages.

All defendants’ points and contentions are overruled.

AFFIRMED.


text:
    Andy ANDERAKO d/b/a Andy’s Mobile Home Service, Appellant, v. William W. WATSON and wife, Dorothy Ellsworth Watson, Appellees.
    No. 5834.
    Court of Civil Appeals of Texas, Waco.
    Dec. 15, 1977.

      John R. Duren, Duren & Thompson, Copperas Cove, for appellant.
    Mark S. Knapp, Copperas Cove, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Anderako from that portion of a summary judgment in a suit on a sworn account which denied him recovery of $500. attorney’s fees.

Plaintiff Anderako sued defendants Watson and wife on a sworn account for $1473.90 plus “an attorney’s fee of $500.”.

Defendants answered with an unsworn general denial; although Rule 185 TRCP required them to file a written denial under oath if they desired to resist the verified claim.

Plaintiff then moved for summary judgment which was granted by the trial court as to the $1473.90, but was denied as to the $500. attorney’s fees claimed.

Plaintiff appeals on one point: The trial court erred in failing to enter judgment for plaintiff for $500. attorney’s fee.

Plaintiff in his petition plead entitlement to $1473.90 for goods, services, wares and merchandise, which defendants accepted and became bound to pay for; and further plead that failure of defendants to pay the account made it necessary for plaintiff to employ an attorney to sue on the account; that a claim had been presented to defendants before suit and remained unsatisfied; and that a reasonable attorney’s fee was $500.

As noted defendants filed an unsworn general denial, but never filed a written denial under oath of items asserted to be unjust or untrue, as required by Rule 185 TRCP.

The unsworn general denial filed by defendants, although legally insufficient to put in issue the matters relating to the action on the sworn account, was legally sufficient to controvert plaintiff’s action to recover reasonable attorney’s fees. Edinburg Meat Products Co. v. Vernon Co., Tex.Civ.App. (Corpus Christi) NWH, 535 S.W.2d 432.

Attorney’s fees were recoverable in this case, but plaintiffs did not prove the reasonableness of the $500. contended for in this summary judgment proceeding. See: Coward v. Gateway National Bank of Beaumont, Tex., 525 S.W.2d 857; Lancaster v. Wynnewood State Bank, Tex.Civ.App. (Waco) NWH, 470 S.W.2d 78.

There is no error in the judgment.

Plaintiff’s point is overruled.

AFFIRMED.


author: CIRE, Justice.

text:
    Donald B. YARBROUGH, Appellant, v. Rex L. COOPER et al., Appellees-Appellants, v. GREATER HOUSTON BANK, Appellee.
    No. 1556.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 20, 1977.
    Appellant’s (Donald B. Yarbrough) Rehearing Denied Jan. 11, 1978.

      Michael Anthony Maness, Jefferson, Maness, Valdes & Mims, Houston, for appellant Donald B. Yarbrough.
    Grant Cook, Charles A. Moore, Reynolds, Allen & Cook, Houston, for appellees/appel-lants Rex L. Cooper, et al.
    T. D. Smith, Houston, for appellee Greater Houston Bank.
   CIRE, Justice.

This double appeal is from a judgment (1) rescinding certain transactions for the purchase of bank stock; (2) awarding actual and exemplary damages for failure to provide a tax shelter; and (3) recognizing the existence of a constructive trust and creditor’s lien on shares of bank stock, but refusing to enforce the trust and foreclose the lien.

Plaintiff R. L. Cooper and intervenor D. W. Ford sued defendants D. B. Yarbrough and Greater Houston Bank, alleging inter alia that Yarbrough had fraudulently induced Cooper and Ford to enter into and fund a transaction for the purchase of a controlling interest in the stock of Commercial Bank of Victoria, Texas; that Yar-brough used funds advanced by Cooper and Ford to purchase the stock in his own name and that Yarbrough wrongfully surrendered the stock to Greater Houston Bank as security for a loan to purchase the stock. Cooper additionally sued Yarbrough (a licensed attorney at the time of these transactions) for legal malpractice by failing to provide Cooper with a tax shelter.

Cooper and Ford prayed for (1) rescission of the transactions with Yarbrough for the purchase of the bank stock or, in the alternative, for actual and exemplary damages which accrued as a result of Yarbrough’s fraud, and (2) recognition and foreclosure of a constructive trust and creditor’s lien upon 1,699 shares of the Victoria Bank stock (or the value thereof) in Greater Houston Bank’s possession. Cooper further prayed for actual and exemplary damages against Yarbrough for alleged legal malpractice in failing to provide Cooper with a tax shelter.

The jury awarded no damages to Cooper on the fraud claim but awarded $43,000.00 in actual damages and $37,500.00 in exemplary damages on the malpractice claim. The jury did not award any damages to Ford on the fraud claim, but the court granted Ford’s motion for judgment on his claim for rescission and awarded him the sum of $18,466.78.

APPEAL OF YARBROUGH

Yarbrough appeals, asserting nine points of error relating to the judgment rendered in favor of R. L. Cooper and D. W. Ford. Yarbrough’s first point of error alleges that the unconditional, unambiguous release of liability signed by Cooper in favor of Yarbrough bars Cooper’s recovery on the malpractice claim as a matter of law. The release was affirmatively pled as a defense only as to count one (fraud) and not as to court two (malpractice), but counsel for Yarbrough alleges that Cooper and Ford waived the requirement that the release be pled as to the malpractice count when they introduced the release into evidence without limitation. Indeed an examination of the pertinent cases discloses that such an unqualified introduction puts the document in evidence for all purposes. Reilly v. Alamo Gas Supply Company, 362 S.W.2d 337, 338 (Tex.Civ.App.-Waco 1962, no writ). However, due to the affirmative nature of the defense, it was incumbent upon Yarbrough specifically to introduce evidence and to request special issues as to the alleged release of the malpractice claim. This Yarbrough failed to do, and, as a consequence, he has waived such defense as to the malpractice claim. Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.Sup.1965); CNL Financial Corp. v. Hewlett, 539 S.W.2d 176, 177 (Tex.Civ.App.-Beaumont 1976, writ ref’d n. r. e.); Conrad v. Judson, 465 S.W.2d 819, 827 (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); See Tex.R.Civ.P. 279.

Yarbrough, in his brief, additionally asserts that the release issues were tried by implied consent with respect to the malpractice count. His contention is without merit.

Implied consent is shown when the evidence upon the extrinsic issue is developed under circumstances making clear that the parties understood such issue was in the case, and without either party having urged the pleading defect by obtaining a ruling on an objection to the evidence, a motion to strike the evidence, a motion for instructed verdict, an objection to the charge, or other appropriate complaint, within the time allowed by the rules.

2 McDonald, Texas Civil Practice, Pleading § 5.18, at 56 (rev. ed. 1970) (see cases cited therein). Evidence concerning the release was admissible on the fraud count, and would not have been subject to objection by Cooper or Ford when offered. There is nothing in the record to indicate that the parties understood that the release issue was in the case as to the malpractice count.

Yarbrough, in points of error two through seven, claims that as to the Cooper judgment there is no evidence or insufficient evidence to support the jury’s answer to special issues number twenty-five, twenty-six or twenty-eight. In analyzing Yar-brough’s no evidence points, we must view the evidence in the light most favorable to the verdict, “considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings.” Rourke v. Garza, 530 S.W.2d 794, 799 (Tex.Sup.1975). When viewing Yarbrough’s insufficient evidence points, we must consider all of the evidence, and we may set the verdict aside only if it is so contrary to the overwhelming weight of all the evidence as to be clearly wrong or manifestly unjust. Calvert, “No Evidence’’ and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960). After examining the record according to the aforementioned tests we are of the opinion that the trial court acted properly in giving full force and effect to the jury’s findings.

The jury, in special issue number twenty-five, found that Yarbrough’s failure to provide professional legal advice was the proximate cause of damage to Cooper. There is evidence in the record that Yar-brough in his capacity as an attorney agreed to handle Cooper’s tax problems, that Cooper relied on such representation and that on more than one occasion Yarbrough assured him that he had the solution, but Yarbrough did nothing. There is further testimony in the record that but for his reliance on Yarbrough’s promises, Cooper would have sought and obtained advice elsewhere.

In response to special issue number twenty-six, the jury awarded $43,000.00 in actual damages. Appellant argues that the evidence did not establish that Cooper had suffered any damages because there was no proof that the investments he would have made in order to avoid a tax liability of $43,000.00 would necessarily have been profitable; he maintains that such an investment could just as easily have resulted in a loss of $43,000.00 or more. This argument fails because the proof is that Yar-brough’s actions destroyed any opportunity that Cooper had for investment. The money, so to speak “went down the drain.” It could have gone into a real estate investment which the witness B. Clendening said would not only produce income but would also provide a tax advantage. J. Kamp, the C.P.A. who prepared Cooper’s 1974 income tax return, reviewed the Clendening proposal and testified that in his opinion, had Cooper made such an investment, Cooper would not have paid any income tax for 1974 and could have had a loss carry-over for 1975. Therefore, but for Yarbrough’s acts or failure to act, Cooper would have had his investment and saved in excess of $43,000.00. We believe this evidence was sufficient to support the jury’s answer to special issue number twenty-six.

Yarbrough does not challenge the amount of exemplary damages as found in special issue number twenty-eight, but claims that no exemplary damages can be awarded where actual damages have not been proven. Since we find no error in the award for actual damages, we find no error in the award for exemplary damages.

Yarbrough asserts two points of error against the judgment rendered in favor of D. W. Ford. The jury found that Yar-brough had defrauded Ford, but, nevertheless, awarded no damages to Ford. After the return of the verdict, Ford presented his motion for judgment on the rescission remedy. The court granted the motion on the basis of “the stipulations of the parties during the trial, the verdict of the jury, the undisputed facts . . . and all facts heard by the court, but not submitted to the jury . . . .” The court ordered Yar-brough to pay Ford $18,466.78 and additionally rendered a take-nothing judgment on Yarbrough’s cross-action and counterclaim.

Yarbrough’s complaint is that the jury found no damages in answer to special issue number ten because Ford introduced no evidence as to the actual fair market value of the stock purchased from Yar-brough by Ford. Appellant cites Section 27.01(b) of the Texas Business and Commerce Code which provides that “[t]he measure of actual damages is the difference between the value of the . . . stock as represented or promised, and its actual value in the condition in which it is delivered at the time of the contract.” Appellant’s statement of the law is correct, and would apply but for the dual theory upon which Ford was seeking a recovery. The rescission claim is independent of the jury’s findings with regard to damages on the fraud issue. See Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233, 238-39 (1957); see also Reynolds Brothers, Incorporated v. Dodson, 380 S.W.2d 678, 681-82 (Tex.Civ.App.-Corpus Christi 1964, no writ). Additionally, the injury sustained by the victim need not be restricted to a monetary loss. Russell v. Industrial Transp. Co., 113 Tex. 441, 258 S.W. 462 (1924). This point is also overruled.

APPEAL OF COOPER

R. L. Cooper appeals from the judgment granted Greater Houston Bank. The trial court, although recognizing that a constructive trust existed with regard to 1,699 shares of stock in the Commercial Bank of Victoria, Texas, nevertheless refused to enforce the constructive trust. Appellee Greater Houston Bank asserts one cross-point of error, claiming that the trial court erred in recognizing the existence of a constructive trust, but, in its counterpoint, ap-pellee recognizes the court acted properly when it refused to enforce the trust. We agree with the trial court’s ruling that enforcement should be denied. Cooper’s release bars his claim for enforcement of a constructive trust against Greater Houston Bank. By so holding, we deem it unnecessary to examine the court’s holding that a constructive trust indeed existed.

On June 26, 1974 Cooper advanced $100,000.00 to Yarbrough to acquire bank stock. On August 22, 1974 a contract to purchase bank stock in the Commercial Bank of Victoria, Texas was executed. The closing date was designated as September 9, 1974, but a conflict exists in the record as to the exact chronology of the transfer of the bank stock and execution of the note in favor of Greater Houston Bank. Cooper claims he is the beneficiary of a constructive trust, and, as such, he became a lien creditor of the shares of the bank stock pursuant to Subsections (a) and (c) of Section 9.301 of the Texas Business and Commerce Code. Lien creditor status would give Cooper priority over a subsequently perfected security interest. See Meadows v. Bierschwale, 516 S.W.2d 125, 133 (Tex.Sup.1974). Greater Houston Bank claims, on the other hand, that its security interest in the bank stock was perfected when it took possession of the stock upon closing. See Tex. Bus. & Comm. Code Ann. §§ 9.302-.305 (Supp.1976-77).

We need not decide this conflict of priorities. The release executed by Cooper bars his claim against Greater Houston Bank. Yarbrough properly pled the affirmative defense of release with regard to count one, the fraud claim. The jury found in favor of Yarbrough on that particular point. As a result, Cooper has no claim against Yarbrough for fraud arising out of the transactions to purchase the bank stock. Cooper’s claim for a constructive trust on the bank stock is dependent upon his ability to successfully sue Yarbrough. The release vitiates that claim. See Hart v. Traders & General Ins. Co., 144 Tex. 146, 189 S.W.2d 493, 494 (1945); cf. Spradley v. McCrackin, 505 S.W.2d 955 (Tex.Civ.App.-Tyler 1974, writ ref’d n. r. e.); Sonnentheil v. Texas Guarantee & Trust Co., 23 Tex.Civ.App. 436, 56 S.W. 143 (1900, no writ).

All points of error asserted by both appellants have been carefully considered and are overruled. The judgment of the trial court is affirmed.

Affirmed.