author: OSBORN, Justice.

text:
    Bernadine Rose BROKENLEG, Appellant, v. Bernard C. BUTTS, Sr., et ux., Appellees.
    No. 6638.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 16, 1977.
    Rehearing Denied Dec. 21, 1977.

      Bertram E. Hirsch, Lawrence A. Rappo-port, Ass’n on American Indian Affairs, Inc., New York City, for appellant.
    Pechota & Amiotte, Terry L. Pechota, Mission, S. D., amicus curiae Rosebud Sioux Tribe.
    John R. Lee, Kermit, for appellant.
    Michael L. Fostel, Kermit, for Guardian ad Litem.
   OPINION

OSBORN, Justice.

This appeal is from a judgment terminating the parental rights of a father and mother and awarding custody of their seven-year-old daughter to her paternal grandparents. The father voluntarily relinquished his rights to the child and there being no appeal from that part of the judgment terminating his rights, that part of the judgment has become final. The mother appeals from that part of the judgment terminating her rights and as to that part of the judgment we reverse and render. We affirm that part of the judgment which finds that the best interest of the child will be served by appointing the grandparents as managing conservators.

The marriage between Bernard C. Butts, Jr., and Bernadine Rose Brokenleg was annulled when their only child, Tiffany, was eighteen months old. The mother and child continued to live in California for several months and then in May, 1972, they moved to Parmelee, South Dakota, and since that time Bernadine has lived on the Rosebud Sioux Indian Reservation, she being a full-blooded Sioux Indian. In July, 1973, Mr. and Mrs. Bernard C. Butts, Sr., Appellees, and their son, Bernard C. Butts, Jr., went to South Dakota and visited Bernadine and Tiffany, whom they had asked to go with them on their vacation. Bernadine was unable to go but agreed that Tiffany could go with her relatives. There is a dispute in the testimony as to whether or not the grandparents were going to keep Tiffany after the vacation or whether she was to be returned to her mother on the Reservation. In fact, the Appellees took Tiffany to their home in Kermit, Texas, following the vacation and she has lived with them since that time.

Bernadine visited her daughter in Kermit in December, 1973, again in December, 1975, and in August, 1976. She also called and talked to Tiffany on the telephone several times each year, wrote to her occasionally, and left $50.00 for her support on the last visit. Bernadine was employed as a secretary at $2.00 per hour from November, 1973, until April, 1974. She was unemployed until going to work as a teacher’s aide at $2.30 per hour in August, 1974, although there is some evidence in the record that that job did not begin until February, 1975. Following an accident, she was unemployed from May, 1975, through August, 1975. At the time of trial, she was continuing to work as a teacher’s aide and also earned $200.00 per month as a part-time tutor of college students.

Mr. Butts, Sr., is a production foreman for an oil company and his wife is circulation manager for a weekly newspaper. Together they earn over $2,000.00 per month. They have a home in Kermit in which Tiffany has her own bedroom. She is doing well in school and attends church regularly. She is well-fed and clothed and receives good medical attention when needed. Apparently, she is a happy, well-adjusted child, who testified in camera that she desires to stay with her grandparents.

Although Bernadine testified that she had adequate housing for her daughter on the Reservation, Appellees said the house was dirty and without adequate bathroom facilities which resulted in the need for an outhouse, and that when Tiffany was bathed, the dogs were in and out of the water. They testified that when they picked Tiffany up in July, 1973, she had a cold, tonsillitis, and ticks in her hair.

A psychiatrist testified that Bernadine was a competent mother and the best interest of the child would be served by placing custody with the mother. Two tribal officers testified in behalf of Bernadine and said she had a good reputation and that Tiffany was a normal child while living on the Reservation and would be well accepted now.

The trial Court filed findings of fact and conclusions of law. It found that Bernadine left Tiffany in the possession of her grandparents in July, 1973, without expressing an intent to return, and that Bernadine at no time provided adequate support, although having adequate financial resources to do so. It also found that it would be detrimental and would endanger the physical and emotional well-being of the child to return her to her mother’s custody to be reared on the Indian Reservation. He concluded that Bernadine had voluntarily left the possession of the child with one not a parent without expressing an intent to return and without providing adequate support of the child, and that she remained away for a period of at least three months. It also concluded that she failed to support her child in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition; and further that it would be in the best interest of the child to terminate the parental rights between Bernadine and Tiffany.

The Appellant attacks each of the trial Court’s findings which serve as a basis for the judgment terminating the parental rights of the mother. The Appellees have filed no brief. The conclusions of law reflect that the trial Court has used both Section 15.02(1)(B) and (F) as a basis for its decision. By her first point of error, Appellant attacks the findings made under Section 15.02(1)(B). As noted in Schiesser v. State, 544 S.W.2d 373 (Tex.1976), there are four elements to this particular Section of the Family Code. They are: (1) voluntarily leaving the child; (2) without expressing an intent to return; (3) without providing for the adequate support of the child; _and (4) remaining away for a period of at least three months. Of course, best interest of the child still remains an issue under Section 15.02(2). Although the Appellant attacks each of the findings as to the four elements mentioned above, we only need concern ourselves with the third one which is a failure to provide for the adequate support of the child. As noted in the commentary following this Section of the Family Code in 8 Tex.Tech.L.Rev. 93 (1976), the standard for determining nonsupport under Subparagraph (B) is whether or not there is provision for adequate support of the child, rather than the parent’s ability to support the child as in Subparagraph (F). The evidence in this case all reflects that the grandparents were able to and did in fact adequately support the child from the day Bernadine turned Tiffany over to them in July, 1973, until the date of trial. They testified themselves that they provided for all of her physical and medical needs and that she was well-fed, clothed, and in good health during the time she remained in their custody. Since the test under this Subparagraph is not whether or not the parent actually supported the child, but whether or not arrangements were made for the adequate support of the child, and the evidence is undisputed that they were, we conclude that Section 15.02(1)(B) is not applicable and we sustain Appellant’s Point of Error No. I.

The second point of error attacks the trial Court’s finding that Appellant failed to support her child in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition under Section 15.02(1)(F). The petition was filed on April 21, 1975. Obviously, one year means twelve consecutive months. Thus, it was necessary that there be a period of twelve consecutive months sometime between October 21,1973, and April 21, 1975, when the Appellant failed to provide support in accordance with her ability. The evidence is without dispute that during that entire period she made no contribution. But under the evidence as set forth above, we find no period of twelve consecutive months where she had an ability to contribute to the support of her child. Although she worked from November, 1973, until April, 1974, without making any contribution, that period is far short of twelve consecutive months. If she did, in fact, go to work in August of 1974 and worked until April, 1975, the period of time is still short of twelve consecutive months. The evidence is without dispute that she was unemployed from April, 1974, at least until August, 1974, and perhaps even until February, 1975. There is no evidence that she had any ability to support her child during that period of time, and thus there are no twelve consecutive months for the period of one year during which she failed to support her child in accordance with her ability to do so as required by Section 15.02(1)(F). Cawley v. Allums, 518 S.W.2d 790 (Tex.1975); Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976).

Even if it should be determined that because of her earnings the Appellant had an ability to contribute to the support of her child for a period of one year ending within six months of the date of the filing of the petition in 1975, we conclude that under the holding in Holley v. Adams, 544 S.W.2d 367 (Tex.1976), the mother’s failure to support is excused. Of course, this issue of excuse must be considered under the holding in the Holley case under Section 15.02(2) in deciding the best interest of the child.

In the event we should be in error as to either of the first two points, we consider and sustain the third point of error which contends that the trial Court erred in finding that the best interest of the child requires termination of the parent-child relationship. The issue raises several difficult questions. First of all, we conclude that a parent-child relationship may be terminated even though there is no proof or finding of unfitness on the part of the parent to remain as a parent. Certainly, this is the rule on the issue of custody. Herrera, v. Herrera, 409 S.W.2d 395 (Tex.1966); Tiller v. Villasenor, 426 S.W.2d 257 (Tex.Civ.App.—Houston [1st Dist.] 1968, no writ); De Le Hoya v. Saldivar, 513 S.W.2d 259 (Tex.Civ.App.—El Paso 1974, no writ). The same rule has been applied in cases involving termination of parent-child relationships. In the case of In re P_, 526 S.W.2d 135 (Tex.Civ.App.—Dallas 1975, no writ), the Court said:

“Appellant contends that appellee has the burden of proving that the natural parent at the time of filing this action was an unfit parent. We cannot agree. Tex.Family Code Ann. Sec. 15.02 (Vernon 1975) places no such burden upon petitioner. Even precode decisions held that a court may terminate parental rights without finding that the parent is unfit, where it is in the best interest of the child. McBrien v. Zacha, 351 S.W.2d 101 (Tex.Civ.App.—Dallas 1961, writ ref’d n.r.e.); Scozzari v. Curtis, 398 S.W.2d 819 (Tex.Civ.App.—Fort Worth 1966, no writ).”

There are cases with language to the contrary. See Hall v. Harris County Child Welfare Unit, 533 S.W.2d 121 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ); and F_ v. State, 525 S.W.2d 933 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). But in Holley v. Adams, supra, and Schiesser v. State, supra, the Court makes no mention of such requirement and certainly the Statute does not indicate that “unfitness” is an issue in itself.

But in the Holley case, the Court lists eight factors which may, among others, be considered in deciding the best interest of the child. One of the factors listed is acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and this would seem to include the element of “unfitness.” The difficulty of the issue lies in part in the fact that most of the factors listed have some equal application to both the issue of custody and the issue of termination. For instance, the first factor listed in that opinion is the desire of the child. In this case, the seven-year-old child testified in camera that she did not want to go with her mother but preferred to stay in Kermit. That may be strong evidence on the custody issue, but questionable evidence on the termination issue. Certainly, the child did not testify that she never wanted to see her mother again. Another listed element is stability of the home. Undoubtedly, the evidence shows greater stability in the home of the grandparents who are well able to provide for the physical, mental and spiritual needs of Tiffany, and based upon such evidence we agree that custody was properly placed in the grandparents. But does the fact that Appellees have a more stable home for the care and custody of Tiffany mean she should have all relationships with her mother terminated even though the mother has on other occasions visited her daughter in that stable home without any apparent problems arising at the time? On the issue of unfitness, the trial Court has made no findings and did not consider that to be an issue in the case. Certainly, the evidence in this case would not have supported any affirmative finding had one been made. Likewise, the record is void of evidence indicating that visitations upon the part of the mother in the past have created any emotional or physical dangers which call for termination of the parent-child relationship.

The facts in this case are somewhat similar to those in the Holley case where the financial support from the mother was practically nil, visitations seldom, but the ability to support much stronger. In that case, the Court said:

“However, as previously noted, any excuse for this failure to support is to be considered under best interest. A comparison of the facts of this case to the circumstances of Heard v. Bauman [443 S.W.2d 715 (Tex.1969)], supra, leads to the conclusion that the failure to support was excused. In the instant case David Adams testified that Nanci Holley voluntarily agreed to give him custody of the child during the course of the divorce proceedings in order to assure that the child would be provided adequate financial support. Nanci Holley was never ordered to make support payments. It was undisputed that the child had been properly cared for while in his father’s custody and that David Adams and his wife never sought or wanted any financial support for the child from Nanci Holley. Therefore, Nanci Holley’s duty to support her child was excused and the fact that the failure to support is excused is one of the factors to be considered in ascertaining the best interest of the child.”

As the Court noted in Wiley v. Spratlan, supra, there is a substantial difference between suits for conservatorship, possession and support of children, and those to terminate a parent-child relationship, and the difference in the proceedings justifies the caution with which Courts have characteristically considered termination cases. While we conclude that all of the factors listed as bearing on the best interest of the child in the Holley case support the trial Court’s conclusion that custody should be awarded to the grandparents in this case, we also conclude that none of those factors compel termination of the mother’s rights as being in the best interest of the child. The father’s rights have been terminated. The grandparents have not testified as to any intention to adopt their granddaughter, no evidence has been offered that the mother is unfit, and we find no compelling reason to terminate “The natural right which exists between parents and their children [and which] is one of constitutional dimensions.” Wiley v. Spratlan, supra.

The foregoing makes it unnecessary for us to pass on the Appellant’s last two points of error.

      . All Section references are to Texas Family Code.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    James A. RAGLAND, Appellant, v. ALLRIGHT PARKING, INC., Appellee.
    No. 15862.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 22, 1977.
    Rehearing Denied Dec. 21, 1977.
    Paul B. Keller, San Antonio, for appellant.

      Harry A. Nass, Jr., San Antonio, George M. Bishop, Houston, for appellee.
   KLINGEMAN, Justice.

This case involves the theft of a pick-up truck from the San Antonio Municipal Airport parking lot. Plaintiff, James A. Rag-land, appeals from a judgment that he take nothing in his suit against Allright Parking, Inc. entered after a trial by the court without a jury. The evidence consists of (1) a stipulation of facts; (2) the testimony of plaintiff; and (3) an exhibit, which is the parking ticket involved. The trial court made findings of fact and conclusions of law.

This case is similar in facts and in points of law to that involved in Allright Auto Parks, Inc. v. Richard C. Moore (Tex.Civ.App.—San Antonio, November 9, 1977, not yet reported). The only differences in such cases are (1) in Allright Auto Parks, Inc. v. Moore, the parking ticket involved was left by Moore in the automobile above the sun-visor; (2) in Allright Auto Parks, Inc. v. Moore the trial court entered judgment for plaintiff for the value of the automobile; and (3) in the case before us, judgment was entered for defendant..

In both Allright Auto Parks, Inc., supra, and the herein case, the plaintiffs chose their own parking place, parked their automobiles, and carried their keys with them when they departed. We held in Allright Auto Parks, Inc., supra, that no bailment was created or existed, and rendered judgment for the parking lot operator. We adhere to our holding in Allright Auto Parks, Inc., supra.

On April 3, 1974, plaintiff drove his pickup truck to a parking lot operated by defendant at San Antonio Municipal Airport, which defendant leased from the city of San Antonio. Upon entering the lot, plaintiff received a ticket from a machine that controls the entrance gate and which causes the gate arm to rise and close automatically. Upon exiting the lot the driver presents such ticket to the cashier for the purpose of calculating the fee owed for the particular length of time parked. Plaintiff, after receiving the ticket, did not read it. When plaintiff returned, his pick-up truck was gone and he reported this to an employee of defendant. The truck was then reported to the San Antonio Police as stolen.

By a stipulation of fact, the parties agreed that (1) defendant operated the parking lot involved; (2) plaintiff parked his truck in such lot on April 3, 1974; (3) the reasonable market value of the pick-up truck was $4,518.38; (4) security for the airport parking lot is provided by the airport police who are employed by the city of San Antonio; and (5) defendant had no duty to provide security for the parking lot in question on any of the dates in question.

The trial court found in its findings of fact and conclusions of law that the truck was not delivered into the possession or custody of defendant; that plaintiffs loss was sustained as a result of a theft by an unknown party from the parking lot; and concluded that no bailment was created or existed between plaintiff and defendant.

Plaintiff urges that a bailor-bailee relationship existed between plaintiff and defendant and relies on a presumption of negligence arising in a bailment transaction. There is nothing in the record to establish any negligence on the part of defendant.

By two points of error plaintiff asserts that the trial court erred in holding that no bailment was created or proven.

In order to constitute a bailment transaction there must be a contract, express or implied; delivery of the property by the bailor to the bailee; and acceptance of the property by the bailee. An essential element of a bailment is delivery of the property by the bailor to the bailee and without such delivery there can be no bailment. Allright Auto Parks, Inc. v. Moore, supra; Allright, Inc. v. Elledge, 508 S.W.2d 864 (Tex.Civ.App.—Houston [1st Dist.]), certified question answered, 515 S.W.2d 266 (Tex.1974), jdgmt. modified, 513 S.W.2d 875 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Panhandle South Plains Fair Ass’n v. Chappell, 142 S.W.2d 934 (Tex.Civ.App.—Amarillo 1940, no writ).

Appellant relies heavily on Farmers Gin Co. v. Texas Electric Ry. Co., 232 S.W.2d 890 (Tex.Civ.App.—Waco 1950, writ ref’d n. r. e.) and Allright, Inc. v. Elledge, supra. These cases are distinguishable and differ from the case before us in the amount and degree of possession and control of the alleged bailee and are not here controlling. In our case the facts indicate that possession and control did not pass from Ragland to Allright Parking, Inc. The herein case falls in the category of such cases as Panhandle South Plains Fair Ass’n, supra; Allright Auto Parks, Inc., supra; Wall v. Airport Parking Co. of Chicago, 88 Ill.App.2d 108, 232 N.E.2d 38 (1967), aff’d, 41 Ill.2d 506, 244 N.E.2d 190 (1969); and Ellish v. Airport Parking Co. of America, Inc., 42 A.D.2d 174, 345 N.Y.S.2d 650 (S.Ct.1973), aff’d, 34 N.Y.2d 882, 359 N.Y.S.2d 280, 316 N.E.2d 715 (1974).

Plaintiff must and does rely on the presumption of negligence arising in a bailment since he did not prove any negligence on the part of defendant. Thus, it was incumbent upon him to prove the existence of a bailment. This he failed to do. The undisputed evidence shows the plaintiff chose the place to park his pick-up truck, locked the truck, and kept the keys in his possession. The trial court correctly held that no bailment was created or existed.

The judgment of the trial court is affirmed.

      . By a third point of error, plaintiff asserts that the trial court erred in giving effect to the disclaimer printed on the parking ticket since the evidence shows that plaintiff did not read the ticket and such disclaimer was not brought to his attention. In view of our holding herein, it is not necessary to consider this point of error as the take nothing judgment is here sustainable without resorting to this additional defense.

      . Wall involved a theft of an automobile from a parking lot at O’Hare Airport in Chicago. The court, in holding that there was no bailment, stated:
      While it is true . . . defendant could have restrained Wall from exiting the lot without paying the parking charges, this in no way relates to any possession or control which defendant may have exercised over the automobile, but merely relates to the power of defendant to enforce its lien for the parking charges.

      . In view of the holding herein we do not deem it necessary to discuss the effect of the stipulation entered into by the parties that defendant had no duty to provide security for the parking lot in question on any of the dates in question in this incident.


author: J. CURTISS BROWN, Chief Justice.

text:
    Herman Benjamin COLEMAN et al., Appellants, v. Robert Michael DONAHO et al., Appellees.
    No. 1519.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 23, 1977.
    Rehearing Denied Dec. 21, 1977.

      Paul W. Persons, Houston, for appellants.
    John W. Turner, Miller, Gann & Perdue, David H. Burrow, Helm, Pletcher, Hogan & Burrow, Woody R. Denson, Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is a suit for personal injuries sustained by the appellees in an automobile accident. The primary issue on appeal is whether, at the time of the accident, one of the appellants was acting in the course and scope of his employment with the other appellant.

The appellant Herman Benjamin Coleman (Coleman) was employed by the appellant Nottingham Homes, Inc. (Nottingham) during September 1972 as a job superintendent. Coleman worked at a Nottingham housing subdivision on September 2, 1972 until approximately 8:30 P.M. One hour later, as he was driving home from work, Coleman was involved in a head-on collision on Farm Road 149 with a car owned and operated by Roger Granger (Granger). Roger Granger, Linda Granger, Robert Michael Donaho (Donaho), Judy Lynn Donaho, and Michael Eugene Donaho, all occupants of the Granger car and appellees herein, sustained severe personal injuries in the accident. Linda Granger died of her injuries fifteen days later.

The appellees sued Coleman and Nottingham, alleging that the appellees’ personal injuries and the wrongful death of Linda Granger were proximately caused by Coleman’s negligence. Trial was held on March 9, 1976. In response to special issues, the jury found that Coleman was engaged in the service of Nottingham and in furtherance of the latter’s business at the time of the accident. The jury also found that Coleman was negligent in failing to keep his vehicle on the right side of the road, in failing to keep a proper lookout, in failing to control his speed, and in operating his vehicle while under the influence of alcohol. Each of those negligent acts or omissions was found to be a proximate cause of the accident. The jury also found that the ap-pellee Granger was not guilty of contributory negligence. The district court rendered judgment in accordance with the verdict.

The appellants assert in their first point of error that the trial court erred in failing to grant an instructed verdict or judgment non obstante veredicto on the issue whether Coleman was acting in the course and scope of his employment with Nottingham at the time of the accident. The appellant Nottingham attacks the legal and factual sufficiency of the evidence to support the jury’s affirmative finding to that special issue. At the time of the accident, Coleman was driving a pickup truck furnished by the president of Nottingham. Coleman was authorized to drive the truck only when he was engaged in Nottingham’s business. The appellant Nottingham does not contend that Coleman’s use of the truck at the time of the accident was unauthorized. Coleman was responsible, additionally, for the safekeeping and distribution of Nottingham’s weekly payroll checks to subcontractors. On the day before the accident, Coleman received Nottingham’s payroll checks and distributed several of those checks. On the evening of the accident, Coleman was taking the remainder of the checks home with him for safekeeping for the rest of the weekend. All of the parties agree that in doing so Coleman was rendering a service to Nottingham. The totality of the circumstances in this case convinces us, therefore, that there was a fact issue as to whether Coleman was acting in the course and scope of his employment with Nottingham when the accident occurred. See American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957); Liberty Mut. Ins. Co. v. Nelson, 142 Tex. 370, 178 S.W.2d 514 (1944).

The appellant Nottingham contends in support of its first point, alternatively, that Coleman deviated from the course and scope of his employment by drinking on the job in violation of company rules. We reject this argument. Coleman’s consumption of alcohol does not alter the fact that, at the time of the accident, Coleman was driving a company truck and performing a service for Nottingham. G. & H. Equipment Co., Inc. v. Alexander, 533 S.W.2d 872 (Tex.Civ.App.-Fort Worth 1976, no writ); Sears, Roebuck & Company v. Jones, 303 S.W.2d 432 (Tex.Civ.App.-Waco 1957, writ ref’d n. r. e.).

In their second, third, seventh and eighth points of error, the appellants complain of the admission of certain evidence by the trial court. The appellants contend that a highway patrolman should not have been allowed to testify as to self-serving statements made to him by the appellees Granger and Donaho at the accident scene. We agree with the appellants that the statements were hearsay. The trial court was endowed with discretion to admit the statements, nevertheless, under the res ges-tae exception to the hearsay rule. The appellants also assert that the trial court erred in allowing the appellees’ expert medical witness to testify in response to hypothetical questions that Coleman was intoxicated at the time of the collision. The predicate for the hypothetical testimony in this case was properly established, and we find no error in the admission of the testimony. See Burns v. Bridge Engineering Corporation, 465 S.W.2d 427 (Tex.Civ.App.-Houston [14th Dist.] 1971, writ ref’d n. r. e.). The appellants complain, additionally, that no predicate was established for the admission of life expectancy table figures for Roger and Linda Granger. We find, however, that there was sufficient evidence of the Grangers’ general health to support the trial court’s discretionary decision to admit the life expectancy figures. The appellants assert, finally, that the trial court erred in admitting into evidence x-ray photographs of Granger because the photographs were not interpreted by a qualified expert upon their admission into evidence. The deposition testimony of Granger’s treating physician, which was read into the record prior to the introduction of the photographs, was a sufficient expert interpretation of those photographs. The trial court did not err in admitting any of the aforementioned evidence.

In their fourth, fifth and ninth points of error, the appellants attack the legal and factual sufficiency of the evidence in support of the jury’s findings on the issues of negligence, contributory negligence and damages. Conflicting evidence was presented on all of these issues, and the jury was free to believe the appellees’ testimony. The evidence was sufficient to support the jury’s findings on those issues.

The appellants complain in their sixth point of error that the trial court erred in excluding evidence that the appel-lee Granger’s car contained, at the time of the accident, unopened liquor bottles and two paper or plastic cups with the word “Schlitz” printed on them, and evidence that the appellees were attempting to find a liquor store. This evidence is neither factually nor legally relevant to show that the appellees were intoxicated at the time of the accident. The court properly excluded the evidence.

In their tenth point of error, the appellants contend that the jury’s verdict was the result of bias, prejudice and sympathy. Since we believe that there was sufficient evidence to support the jury’s findings, we cannot say that the jury was influenced by bias, prejudice or sympathy. Bluebonnet Express, Inc. v. Foreman, 431 S.W.2d 45 (Tex.Civ.App.-Houston [14th Dist.] 1968, no writ).

The appellants assert in their eleventh point of error that they entered into a settlement agreement with the Donahos, and that the trial court erred in not enforcing that agreement. The appellants allege that the Donahos’ first amended original petition constituted an offer to settle their personal injury claims, and that the appellants’ first amended original answer was an acceptance of the Donahos’ offer. We disagree. The Donahos’ first amended original petition does not manifest an intent to enter into a contractual agreement with the appellants. The Donahos clearly intended, rather, for their petition to initiate an adversary proceeding. That the appellants appreciated the adversary nature of the petition is apparent; paragraphs I through VI of the appellants’ first amended original answer demanded strict proof of the Dona-hos’ claims. Although we might have been faced with a different issue had the appellants confessed judgment in favor of the Donahos, the trial court correctly refused to enforce the so-called “contract of settlement.”

In their final point of error, the appellants complain of the appointment of a guardian ad litem for the minor appellee Michael Eugene Donaho. Since the minor Donaho and his parents were all parties to the lawsuit, a conflict of interest could have arisen during the negotiation of a settlement or the prosecution of the suit. The trial court did not abuse its discretion in appointing the guardian ad litem and taxing his fee as costs against the appellants.

The appellants’ points of error having been fully considered and overruled, the judgment of the trial court is hereby affirmed.

Affirmed.


author: NYE, Chief Justice.

text:
    Ona WRIGHT, Appellant, v. Margaret GERNANDT, Appellee.
    No. 1238.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 23, 1977.
    Rehearing Denied Jan. 5, 1978.

      William H. Berry, Jr., Corpus Christi, for appellant.
    Michael W. Williams, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a declaratory judgment suit in which the plaintiff, Margaret Gernandt, sought a declaration that she was the owner of the proceeds of a fire insurance policy and that the defendant was required to maintain additional insurance to cover the fire loss incurred by the plaintiff. The defendant, Ona Wright, filed her cross-action seeking equitable reformation of the lease agreement, a share of the insurance proceeds and damages for unpaid bills. The trial was to a jury in which the jury answered issues favorable to the plaintiff resulting in a judgment being entered for the plaintiff, subject to offsets for the unpaid bills. The defendant appeals to this Court.

The defendant was the owner of land and a building in Corpus Christi, once known as the “Motts Restaurant.” In 1973, the defendant’s former husband (not a party to this suit or to the lease agreement) entered into negotiations to lease the premises to the plaintiff. The parties discussed the terms including insurance during the preliminary negotiations. After the negotiations had been completed, the defendant requested that her attorney draft the lease agreement. A five year lease on the restaurant was executed by both parties. Two years later, a fire destroyed the premises. Neither the plaintiff nor the defendant knew for sure, until the fire had destroyed the premises and until they had reread the lease, that paragraph 8 of the lease agreement required the defendant to procure insurance. The paragraph in question is as follows:

“8. During the term of this lease, Lessor agrees that she will, at her own expense, at all times maintain in force a policy or policies of insurance, written by one or more responsible insurance carriers, designated by Lessor, insuring the leased premises against fire, windstorm or other hazard for such amount or amounts as may be approved by Lessor. Such policy or policies shall insure Lessor or Lessee as their respective interest may appear.”

The plaintiff procured a $12,000 personal property contents insurance policy prior to the fire. At trial, the plaintiff’s theory was that the defendant breached the express covenant of the lease requiring the defendant to maintain insurance on the plaintiff’s full interest in the leased property. The defendant’s affirmative defense at trial, and her major contention here on appeal, is that the first reference to “lessor” in paragraph 8 of the lease, was a mutual mistake caused by a scrivener’s error, thereby justifying equitable reformation of the lease. The defendant would reform the lease agreement so that the $12,000 proceeds of plaintiff’s insurance policy would be apportioned between the parties as their interest would appear.

The answered issues returned by the jury were: (1) that the first reference to “lessor” in paragraph 8 was a mistake and should have read “lessee”; (2) that such mistake was not mutual — in other words, not made by both plaintiff and defendant; (3) that such mistake, if unilateral, was not made by the plaintiff; (4) that such mistake, if unilateral, was made by the defendant; (5) that plaintiff did not represent to the defendant that she had adequate fire insurance on the contents at the restaurant; (6) through (9) (the balance of the fraud issues) were conditionally submitted and not answered; (10) that the actual value of the personal property owned by the plaintiff which was destroyed was $18,786.58; (11) that the actual value of the personal property owned by the defendant which was destroyed by the fire was $12,284.36; (12) that the plaintiff was not entitled to any lost profits and (13) that the unpaid bills owed to the defendant were $1,440.74.

Generally, a mistake of fact, if mutual, is grounds for reformation of a written contract. The parol evidence rules do not apply, where it is alleged that by reason of a mutual mistake, an agreement does not express the real intention of the parties. Extrinsic evidence in such cases, is admissible to show what the real agreement is. Olvey v. Jones, 137 Tex. 639,156 S.W.2d 977, 980 (1941). The party seeking reformation must prove what the true agreement was, and that the terms of the writing which differ from the true agreement were placed in the instrument by a mutual mistake of the parties. Burrows v. Seale, 148 Tex. 411, 225 S.W.2d 966, 969 (1950); Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447 (1935). A scrivener’s error or typist’s failure to embody the parties’ true agreement in a written instrument is such a mistake as to afford ground for reformation, if the mistake is a mutual mistake. Bates v. Lefforge, 63 S.W.2d 360, 362 (Tex.Comm’n.App.1933, jdgmt adopted); Snell-ings v. Snellings, 482 S.W.2d 707, 709 (Tex.Civ.App.—Waco 1972, writ ref’d n.r.e.); Louviere v. Power, 389 S.W.2d 333, 335 (Tex.Civ.App.—Waco 1965, writ ref’d n.r. e.); Williams v. Hooks, 333 S.W.2d 184, 187 (Tex.Civ.App.—Beaumont 1960, no writ); see also Thomas v. Baptist Foundation of Texas, 123 S.W.2d 440, 448-49 (Tex.Civ.App.—Fort Worth 1938, wr. dism., judg. corr.); Coker v. Hughes, 307 S.W.2d 354, 359-60 (Tex.Civ.App.—Amarillo 1957, no writ); Eggert v. American Standard Life Insurance Company, 404 S.W.2d 99, 105 (Tex.Civ.App.—Corpus Christi 1966, no writ); Louviere v. Power, supra.

Actually, the vital fact issues that should be submitted in defendant’s affirmative defense of mutual mistake in such a case would be: 1) whether the plaintiff ever agreed to maintain insurance on the leased premises; 2) whether at the time they signed the lease, plaintiff and defendant thought that the lease required the plaintiff to maintain insurance on the leased premises; and 3) whether through a scrivener’s error, the instrument failed to set forth the parties’ prior agreement or understanding.

The defendant by her first six points of error has attacked the jury findings to issues two and four by contending there is no evidence or insufficient evidence and that such findings are contrary to the great weight and preponderance of the evidence. We decide the no evidence point by considering only the favorable evidence and we consider the entire record in passing upon the remaining evidentiary points. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 362-3 (1960); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965).

The plaintiff testified that fire insurance had been discussed during the lease negotiations but that the parties had not reached a definite agreement regarding insurance prior to the signing of the lease. Plaintiff testified as follows:

“Q Was there any discussion of insurance prior to the signing of the lease?
A It was discussed, but no agreement was made.
Q Do you recall any at all at this time the extent of those discussions? (regarding insurance)
A No, I just went by what was in the lease, and read the lease and signed it.”

The defendant’s attorney, who prepared the lease, testified that he represented only the defendant and the plaintiff did not participate in any of the discussions that he had with the defendant prior to the preparation of the lease.

Plaintiff testified that she first saw the lease when she went to the defendant’s office to sign the lease at defendant’s request. She stated that the lease did not embody any previous agreement regarding insurance, because there had been no definite previous agreement concerning insurance between the parties. The defendant did not offer any testimony concerning any conversation that might have taken place on the day the lease was signed even though the evidence showed the plaintiff signed the agreement in defendant’s presence. The defendant testified that she had a conversation with the plaintiff prior to the signing of the lease. She stated that the terms of the lease, including insurance, were discussed. The jury could reasonably infer and did answer that the mistake in the lease was unilateral and was made only by the defendant.

The jury is not only the judge of the facts and circumstances proven, but they are the judge of the credibility of the witnesses. They are at liberty to draw reasonable inferences and deductions from the evidence adduced at trial. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Clark v. Brewer, 498 S.W.2d 957, 959 (Tex.Civ.App.—Corpus Christi 1973, no writ). We have considered the entire record concerning the circumstances prior to and at the time the lease was signed and find that special issues 2 and 4 are supported by the evidence and are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). All of defendant’s evidentiary points of error are overruled.

Special issues 10 and 11 were directed to finding the value of the plaintiff’s and defendant’s destroyed personal property. The jury’s answers to these issues would have provided a basis for the trial court to apportion the insurance proceeds between the parties had the defendant prevailed on her affirmative defense. Although special issue 11 should have been conditionally submitted based on a favorable finding on issues 2, 3 and 4, its submission and answer were harmless error. Rule 434, T.R.C.P. Rule 279 requires the trial court to submit only the controlling issues. Holmes v. J. C. Penney Company, 382 S.W.2d 472, 473 (Tex.Sup.1964). Appellant’s seventh point of error is overruled.

Next, the defendant complains that the measure of damages submitted to the jury in special issue 10 should have been the reasonable market value and not actual value of the personal property destroyed by the fire. We recognize that the general rule is that if a chattel is totally destroyed, the proper measure of damages is the difference in its market value immediately before and immediately after the injury, without additional recovery for the loss of the chattel’s use. Export Insurance Co. v. Herrera, 426 S.W.2d 895 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n.r.e.).

The plaintiff alleged that she sustained a $25,478.45 personal property loss. The jury found that the “actual value” of her loss was $18,786.58. The plaintiff introduced into evidence detailed lists of her losses. This consisted of food, beverages and other supplies which she testified that she purchased weekly from bulk suppliers. As such, “market value” and “actual value” would be substantially the same. The plaintiff testified that the value of these items was obtained by contacting her suppliers or through her memory from what she had actually paid for them. Her inventory loss also included antiques, equipment and furniture used in her restaurant business, including personal household items, clothing and personal effects. Personal property, of this latter category, has no market value in the ordinary meaning of the term. The measure of damages that should be applied for loss of this kind of property is actual value of the articles to the owner in the condition they were in at the time of the loss, without resort to market value, and excluding any fanciful or sentimental considerations. Crisp v. Security National Insurance Company, 369 S.W.2d 326, 328-29 (Tex.Sup.1963). This measure of damages has been applied to furniture, furnishings and equipment used in a hotel business against the contention that the proper measure of damages should be cash market value. Wutke v. Yolton, 11 S.W.2d 549 (Tex.Civ.App.—Beaumont 1934, writ ref’d). The most fundamental rule of damages that every wrongful injury or loss to persons or property should be adequately and reasonably compensated requires the allowance of damages in compensation for the reasonable special value of some special articles to their owner. The trial court did not divide plaintiff’s property into all the various categories according to each measure of damages applicable to all of plaintiff’s property. See Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.Sup.1963) and authorities cited therein. Although we do not necessarily approve of this practice, the defendant has failed to show that she has been harmed. Rule 434, T.R.C.P. A measure of damages that is not correct in every respect, if substantially correct, is not necessarily reversible error. Crisp v. Security National Insurance Company, 369 S.W.2d 326, 330 (Tex.Sup.1963); Frymire Engineering Company, Inc. v. Grantham, 517 S.W.2d 820 (Tex.Civ.App.—Fort Worth 1975) rev'd and remanded on other grounds, 524 S.W.2d 680 (Tex.Sup.1975); McMahan v. Musgrave, 229 S.W.2d 894 (Tex.Civ.App.—Eastland 1950, writ dism’d). Defendant’s point of error 12 is overruled.

Defendant’s multifarious point of error number 8 is overruled. Rule 418, T.R.C.P. (See cases under note 11). We will discuss the arguments under the point because some of them are made under other points of error. Defendant complains generally of the trial court's action in submitting the damage issue (special issue 10), to the jury. Defendant seems to contend that this issue presumes damages without pleadings, evidence, where there was none, and lack of proper special issues. Defendant suggests that issues should have been submitted inquiring whether the defendant had a duty to discover the mistake, along with negligence, proximate cause and damages.

Plaintiff’s petition was sufficient to state a cause of action for breach of the lease covenant in question. Her pleadings state that plaintiff and defendant entered into a lease agreement; that paragraph 8 of the lease provides that defendant would maintain fire and other hazard insurance on the leased premises as the interest of plaintiff and defendant may appear; that the leased premises was destroyed by fire; that at the time of the fire defendant failed to have insurance in force; that plaintiff’s interest (as lessee) in the leased premises at the time of the fire was $25,478.45; that plaintiff suffered a $13,478.45 loss in excess of her own insurance coverage as a result of the fire; and suffered lost profits at the rate of $14,152.59 per year because she was unable to resume business. Plaintiff prayed for relief in accordance with the allegations of her petition.

The evidence adduced at the trial included the written lease, which was admitted into evidence without objection. The uncontradicted evidence at trial further showed: that defendant did not maintain any insurance covering the property; that on December 13, 1975, fire destroyed the leased premises; and that plaintiff suffered damages from the loss of her personal property, which was more than the amount of insurance in force. The testimony of plaintiff regarding the value of her personal property had probative force even though her valuation might have been based in part on information received from others. Patman v. Sanders, 537 S.W.2d 308, 312 (Tex.Civ.App.—Amarillo 1976, no writ); Cortez v. Mascarro, 412 S.W.2d 342, 343-44 (Tex.Civ.App.—San Antonio 1967, no writ). It must be remembered that the owner of a chattel may testify to its value (if he knows its value), even though he may not be qualified as an expert to testify as to the value of like property owned by others. Putman v. Sanders, 537 S.W.2d 308, 312 (Tex.Civ.App.—Amarillo 1976, no writ); Brown v. Brown, 520 S.W.2d 571, 577 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Classified Parking System v. Kirby, 507 S.W.2d 586 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); National Surety Corporation v. Seale, 499 S.W.2d 753, 754-55 (Tex.Civ.App.—Dallas 1973, no writ); Barstow v. Jackson, 429 S.W.2d 536 (Tex.Civ.App.—San Antonio 1968, no writ); 3 Wigmore, Evidence, Sec. 716 (1940). Submission of special issues on undisputed facts is actually unnecessary. Tex.R.Civ.P. 272; Sullivan v. Barnett, 471 S.W.2d 39, 42 (Tex.Sup. 1971); Marburger v. Jackson, 513 S.W.2d 652, 655 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.).

This particular portion of plaintiff’s cause of action was predicated on defendant’s alleged breach of the lease covenant. Defendant failed to establish her affirmative defenses of mutual mistake and fraud. No other tenable theory or defense was submitted or complained of here on appeal. Plaintiff was therefore entitled to enforce the terms of the lease as it was written even though the defendant (and even the plaintiff) apparently signed the lease without noticing the provisions of paragraph 8. Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex.Com.App.1962); Kasch v. Farmers’ Gin Co., 3 S.W.2d 72 (Tex.Sup.1928). Where there is no ambiguity in the lease (as is the case that is before us) the construction of such is a question of law for the court. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193 (Tex.Sup.1962); Chaffe v. Murray, 492 S.W.2d 680, 685 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n.r.e.). Such construction is governed by the same general rules applicable to other written instruments. Ferrari v. Bauerle, 519 S.W.2d 144, 146 (Tex.Civ.App.—Austin 1975, writ ref’d n.r.e.); Eckstine v. Webb Walker Jewelry Company, 178 S.W.2d 532, 536 (Tex.Civ.App.—Fort Worth 1944, writ ref’d w.o.m.).

Defendant’s point of error 11 again raises the question of the trial court’s failure to submit negligence issues. In this point of error defendant contends the trial court erred in including an instruction on proximate cause because such instruction, absent attendant negligence issues, amounted to a comment on the weight of the evidence. This contention is also without merit because the instruction defining the legal term “direct and proximate cause” was contained in special issue 12. Special issue 12 was based on plaintiff’s claim for lost profits as special damages which the jury found to be “none.” Even if damages had been found by the jury, the court’s instruction was not improper. Cockburn v. Mercantile Petroleum, 296 S.W.2d 316, 328 (Tex.Civ.App.—Dallas 1956, writ ref’d n.r.e.).

All of defendant’s points of error have been carefully considered and they are overruled. The judgment of the trial court is AFFIRMED.

OPINION ON MOTION FOR REHEARING

On motion for rehearing, defendant argues for the first time that this Court erred in affirming that portion of the trial court’s judgment which allowed plaintiff lessee to recover $6,786.58 for loss of personal property because, the lease as written, requires the lessor to insure “the leased premises” which does not encompass the personal property contents of the lessee. It seems to be defendant’s contention now that this Court interpreted paragraph 8 of the lease and held as a matter of law that the reference in paragraph 8 to “the leased premises” included the personal property contents of the lessee.

In this case defendant lessor sought equitable reformation of the lease and a proportionate share of plaintiff lessee’s personal property contents insurance policy on the theory that there was a mutual mistake resulting from a scrivener’s error in paragraph 8, or, in the alternative, there was a unilateral mistake which justified reformation due to the lessee's fraudulent misrepresentations. Plaintiff, on the other hand, sought to enforce the lease as it was written and to recover damages due to the loss of her personal property in excess of the personal property contents policy she maintained. At trial both parties contended in effect that paragraph 8 of the lease, particularly the sentence “[s]uch policy or policies shall insure Lessor or Lessee as their respective interest may appear” required insurance to cover the personal property contents of both the Lessor and Lessee. As stated in our original opinion, neither party at trial contended the lease provision in question was vague or ambiguous. Therefore, the interpretation of the instrument was a question of law for the trial court. Implicit in the trial court’s judgment awarding damages to plaintiff for her loss of personal property, is the trial court’s agreement with the parties’ own interpretation of paragraph 8. Nowhere in her motion for judgment n.o.v., motion for new trial, or by point of error and arguments and authorities thereunder on appeal, did defendant lessor suggest that the lease was vague, ambiguous, or that the trial court had erroneously interpreted paragraph 8 of the lease. Therefore, on appeal, we did not consider defendants’ new point of error, that of the trial court’s interpretation of the lease, nor do we now on motion for rehearing.

The law does not impose upon the appellate court the duty of discovering, from the pleadings, evidence, and other matters of record, whether the trial court might have committed reversible error in its decision of the case. The appellant has the burden throughout to designate in proper assignments of error and in arguments and authorities in the brief the particular errors relied upon for reversal. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 941 (1956); Holzapfel v. Brueggman, 404 S.W.2d 916, 920 (Tex.Civ.App.—Corpus Christi 1966, writ ref'd n.r.e); McClanahan v. Cook, 401 S.W.2d 352, 354 (Tex.Civ.App.—Amarillo 1966, no writ). The Courts of Civil Appeals may only consider properly perfected points of error on appeal in light of the argument and authorities developed in the appellant’s brief which sufficiently direct the Court’s attention to the error upon which the appellant relies. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Saldana v. Garcia, 275 S.W.2d 563 (Tex.Civ.App.—San Antonio 1955, aff’d, 155 Tex. 242, 285 S.W.2d 197, 200 (1957).

An assignment of error raised for the first time in appellant’s motion for rehearing in the Court of Civil Appeals is too late to be considered. Lone Star Gas Company v. Sheaner, 157 Tex. 508, 305 S.W.2d 150, 153 (1957); W. T. Burton Co. v. Keown Contracting Co., 353 S.W.2d 909 (Tex.Civ.App.—Beaumont 1961, writ ref'd n.r.e.); Southland Life Ins. Co. v. Barrett, 172 S.W.2d 997 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w.o.m.). The appellate courts may, in some rare situations, consider an unassigned error, but only if the error can be classified properly as “fundamental error.” State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353 (Tex.Sup.1971); Newman v. King, 433 S.W.2d 420 (Tex.Sup.1968); Asbeck v. Asbeck, 369 S.W.2d 915 (Tex.Sup.1963); Texas Power and Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958). There is no fundamental error here present. Defendant lessor’s assignments of error relating to this new interpretation of paragraph 8 of- the lease are all overruled.

We have carefully considered all of the other assignments of error contained in defendant’s motion for rehearing and find that they are without merit. Defendant’s motion for rehearing is overruled.


text:
    Harvey E. THOMPSON, Appellant, v. MONSANTO COMPANY, Appellee.
    No. 1593.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 1977.
    Russell G. Burwell, James P. Simpson, Simpson, Morgan & Burwell, Texas City, for appellant.
    Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is a suit in which the appellant seeks recovery under the provisions of article 8307c of the Texas Workmen’s Compensation Act for wrongful discharge. In October 1969, Harvey E. Thompson (appellant or Thompson) suffered spinal injuries while working within the scope of his employment for Monsanto Company (appellee or Monsanto). After filing his workmen’s compensation claim in 1971 with the Industrial Accident Board, he was awarded compensation. In July 1972, this award was appealed by Liberty Mutual Insurance Company, the workmen’s compensation carrier for Monsanto. Appellant cross-acted for compensation benefits. The jury found appellant totally and permanently disabled and judgment for him was rendered accordingly. In July 1973, shortly after the trial, Monsanto terminated appellant’s employment. Appellant filed a grievance asking to be reinstated, and his union exercised the right to arbitrate the discharge, claiming that appellant’s employment was terminated for bringing the workmen’s compensation claim and recovering a favorable jury verdict. The arbitrator found that appellee was justified in discharging appellant since, due to the extent of his injury, appellant could not safely perform his job, or any job within his classification and seniority.

Thereafter, appellant filed this suit in the district court under article 8307c, alleging that his discharge was due to his good faith effort to pursue his workmen’s compensation claim. Article 8307c provides:

Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.
Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.

Sec. 3. The district courts of the State of Texas shall have jurisdiction for cause shown, to restrain violations of this Act. Tex.Rev.Civ.Stat.Ann. art. 8307c (Supp.1976-77). Monsanto answered by general denial and alleged that appellant was es-topped to assert his claim in the district court since he elected to pursue arbitration, and, under the collective bargaining agreement, the arbitrator’s decision was final and binding. The parties agreed to a hearing on the stipulated facts concerning appellee’s defense that the arbitration decision was final and precluded further litigation. The parties stipulated that all procedural requirements with respect to arbitration were properly followed. The trial court found that under the stipulated facts, appellee was entitled to judgment.

On appeal, appellant argues that the arbitration could not divest the district court of jurisdiction conferred by article 8307c and would be against public policy since it would deprive appellant of a judicial determination of his case. The question thus presented on appeal is a novel one in this jurisdiction, insofar as we can determine: may an employee be deprived of his state statutory remedy under article 8307c because he received an adverse ruling in an arbitration procedure conducted under a collective bargaining agreement? The parties stipulated that Monsanto is a corporation engaged in interstate commerce and is subject to the provisions of the Labor Management Relations Act (Taft-Hartley Act) § 301(a), 29 U.S.C. § 185(a) (1970).

Section 301(a) of the act gives federal district courts jurisdiction over suits for violation of collective bargaining agreements. It has been said that the provision authorizes federal courts to fashion a body of uniform national labor law for enforcement of these agreements. See Textile Workers Union v. Lincoln Mills of Ala., 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Goodyear Tire & Rubber Co., etc. v. Sanford, 540 S.W.2d 478 (Tex.Civ.App.-Houston [14th Dist.] 1976, no writ). In drafting the section, Congress was concerned that unions as well as employees should be bound to collective bargaining contracts. Federal labor policy requires employees asserting contract grievances to attempt to use grievance processes agreed upon in the contract as the mode of redress. Republic Steel Corporation v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); McBride v. Beaumont City Lines, Inc., 356 S.W.2d 395 (Tex.Civ.App.-Beaumont 1962, writ dism’d). An employee should not be allowed to sidestep available grievance procedures, since if such procedures could not be made exclusive, such conduct would exert a disruptive influence upon both the negotiation and administration of collective bargaining agreements. Republic Steel Corporation v. Maddox, supra. Moreover, under section 203(d) of the Labor Management Relations Act, Congress has expressly approved contract grievance procedures as a preferred method for settling disputes and stabilizing the common law of the plant:

Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. The Service is directed to make its conciliation and mediation services available in the settlement of such grievance disputes only as a last resort and in exceptional cases.

Labor Management Relations Act (Taft-Hartley Act) § 203(d), 29 U.S.C. § 173(d) (1970). It has been held, then, that courts will not review the merits of an arbitration award and interpret collective bargaining contracts. United Steelwkrs. of A. v. Enterprise W. & C. Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelwkrs. of Am. v. Warrior & Gulf N. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelwkrs. of Amer. v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167 (5th Cir. 1971); Mills v. Braniff Airways, Inc., 527 S.W.2d 838 (Tex.Civ.App.-Eastland 1975, no writ). To give courts such authority would undermine the federal policy of settling labor disputes. United Steelwkrs. of A. v. Enterprise W. & C. Corp., supra. The function of the court is limited to ascertaining whether the claim is arbitrable under the contract. United Steelwkrs. of Amer. v. American Mfg. Co., supra.

There are exceptions, however, to the general rule requiring an aggrieved employee to pursue his contractual remedy before resorting to the courts. Under the general rule, if the union wrongfully refuses to pursue the employee’s claim through arbitration, then the employee is prevented from exhausting his contractual remedy, and is left without a remedy. The Supreme Court has stated, therefore, that where a union, as bargaining agent, breaches its duty of fair representation in handling the claim by acting arbitrarily, discriminatorily, or in bad faith, the employee may bring suit in the courts under § 301(a) for wrongful discharge, and will not be subject to the defense of failure to exhaust his contractual remedies. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); accord, Duckstein v. General Dynamics Corp., Fort Worth Div., 499 S.W.2d 907 (Tex.Civ.App.-Fort Worth 1973), cert. denied, 419 U.S. 835, 95 S.Ct. 61, 42 L.Ed.2d 61 (1974). The Court has also held that the judicial remedy for collection of seamen’s wages and resulting penalties, provided by 46 U.S.C. § 596, is an alternative to the arbitration process contemplated under section 301. U. S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971). Recogniz-. ing the apparent conflict between the two sections and that section 301 is silent as to abrogation of existing statutory remedies, the Court in Arguelles reasoned that section 301 was not intended to replace the long established remedies of seamen under section 596, but merely to create an optional remedy. Id. This exception creating an optional remedy has been extended to suits under the Fair Labor Standards Act. Leone v. Mobil Oil Corporation, 173 U.S.App.D.C. 204, 523 F.2d 1153 (1975).

While federal labor policy may have recognized alternative remedies in these narrow areas, the employee is required to elect between the two, and may not take advantage of both. In Suissa v. American Export Lines, Inc., 507 F.2d 1343 (2d Cir. 1974), the Second Circuit held that where a seaman has chosen to exhaust grievance procedures, he is precluded from subsequently bringing suit under section 596. The claimant has no right to an independent judicial determination of the merits of his grievance unless he establishes a union breach of its duty to fair representation. Such a rule would negate the desired finality to grievance arbitration procedures. Employers would have little reason to rely upon the terms of a settlement agreement, and unions would be stripped of their role in administrating and negotiating contractual terms. Id. at 1347— 48. This limitation has also been extended to bar suits under the Fair Labor Standards Act. See Satterwhite v. United Parcel Service, Inc., 496 F.2d 448 (10th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974); Atterburg v. Anchor Motor Freight, Inc., 425 F.Supp. 841 (D.N.J.1977).

In Haynes v. United States Pipe & Foundry Company, 362 F.2d 414 (5th Cir. 1966), the Fifth Circuit held that under Republic Steel Corporation v. Maddox, supra; Union News Company v. Hildreth, 295 F.2d 658 (6th Cir. 1961), cert. denied, 375 U.S. 826, 84 S.Ct. 69, 11 L.Ed.2d 59 (1963); and Simmons v. Union News Company, 341 F.2d 531 (6th Cir.), cert. denied, 382 U.S. 884, 86 S.Ct. 165, 15 L.Ed.2d 125 (1965); final grievance processes should constitute an affirmative defense to suits for wrongful discharge brought under section 301(a). Accord, Lomax v. Armstrong Cork Company, 433 F.2d 1277 (5th Cir. 1970); Davis v. Howard, 404 F.Supp. 678 (N.D.Ga.1975) (suit brought under 42 U.S.C. §§ 1981,1983 and 1985(3); see Chapel v. Southwestern Bell Telephone Company, 520 S.W.2d 592 (Tex.Civ.App.-Fort Worth 1975, no writ). This policy of precluding employees who have pursued their claims through final and binding grievance or arbitration from then having their claims litigated in the courts is supported by other authorities. 8 Federal Regulation of Employment Service, Contracts § 67:126 (1977); Jones, Compulsion and the Consensual in Labor Arbitration, 51 Va.L.Rev. 369, 375 (1965).

We note that the Supreme Court has created an exception to this limitation where discrimination in employment practices is involved. In Alexander v. Gardner-Denver Company, 415 U.S. 36,94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the Court held that an employee could bring suit under Title VII of the 1964 Civil Rights Act charging racial discrimination in employment practices, even after submitting the grievance to final arbitration. It has also been held that arbitration does not preclude review by the National Labor Relations Board. Carey v. Westinghouse Electric Corporation, 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964). It is clear, then, that except for a few narrow exceptions, federal law dictates that prior binding grievance or arbitration remedies can be successfully alleged by an employer as an affirmative defense against an employee who sues for wrongful discharge under section 301(a).

The question remains, however, whether a distinction should be made in the present case due to the fact that appellant has sued under article 8307c, rather than section 301(a); that is, does this specific state statute allow a trial on the merits after an adverse arbitration decision? We believe that, where applicable, federal law controls and preempts this field. The Supreme Court has held that principles of federal labor law must be paramount over incompatible state laws in the area covered by section 301. Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); see Goodyear Tire & Rubber Co., etc. v. Sanford, supra. In Lucas Flour, suit was brought in a Washington state court for damages sustained by an employer because of a strike prior to arbitration in violation of the collective bargaining agreement. The Washington Supreme Court held that it could decide the case based on local law. The United States Supreme Court held, however, that federal law must prevail in order to insure a uniform and comprehensive labor policy:

The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements. Because neither party could be certain of the rights which it had obtained or conceded, the process of negotiating an agreement would be made immeasurably more difficult by the necessity of trying to formulate contract provisions in such a way as to contain the same meaning under two or more systems of law which might someday be invoked in enforcing the contract. Once the collective bargain was made, the possibility of conflicting substantive interpretation under competing legal systems would tend to stimulate and prolong disputes as to its interpretation. Indeed, the existence of possibly conflicting legal concepts might substantially impede the parties’ willingness to agree to contract terms providing for final arbitral or judicial resolution of disputes.

Id. at 103-04, 82 S.Ct. at 577. See Textile Workers Union v. Lincoln Mills of Ala., supra; Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962); Papadopoulos v. Sheraton Park Hotel, 410 F.Supp. 217 (D.D.C.1976); Chapel v. Southwestern Bell Telephone Company, supra; Oil, Chemical & Atomic Wkrs. Int. U. v. Lone Star Pro. Co., 332 S.W.2d 151 (Tex.Civ.App.-Amarillo 1959, writ ref’d n.r.e.). We hold, then, that while our courts may entertain suits under article 8307c, substantive federal law has preempted the field of labor policy and, where applicable, must be applied in the face of incompatible state law. See generally, 8 Federal Regulation of Employment Service, Contracts § 67:2 (1977); Mendelsohn, Enforceability of Arbitration Agreements Under Taft-Hartley Section 301, 66 Yale L.J. 167,187-94 (1956).

We hold that the trial court was correct in finding for the appellee based on its affirmative defense of final arbitration. Appellant has neither complained of the union’s failure to fairly represent him under Vaca v. Sipes, nor brought suit under Title VII of the Civil Rights Act alleging racial discrimination. In short, appellant has admitted that all proper grievance and arbitration procedures were followed, in a case governed by federal labor law. The judgment of the trial court must therefore be affirmed.

Affirmed.


author: CIRE, Justice.

text:
    Robert C. HUGLEY, Jr., Trustee, Appellant, v. D. R. CALDWELL et al., Appellees.
    No. 1709.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 30, 1977.
    Rehearing Denied Jan. 4, 1978.

      Charles E. Fitch, DeLange, Hudspeth, Pitman & Katz, Houston, for appellant.
    Jon Mercer, Roger R. Wright, Jr., Woodward, Hall, McCrary, Henry & Primm, Houston, for appellees.
   CIRE, Justice.

R. C. Hugley appeals from a judgment which denied him recovery of $10,000 allegedly due him pursuant to the terms of an earnest money contract. The trial court, after hearing the plaintiff’s case, granted the defendants’ motion for judgment that plaintiff take nothing.

On June 29, 1973, Hugley and D. R. Caldwell entered into an earnest money contract which provided for the sale of approximately 225 acres located in Brazoria County, Texas. The price per acre was set at $2,050.

The earnest money contract, a relatively lengthy document, contained, among other things, provisions for: (1) an option to purchase a thirty acre peach orchard; (2) the delivery, five days prior to the closing date, of any sales contracts between the vendor and third parties; (3) a $10,000 irrevocable letter of credit as earnest money to be placed in escrow with American Title Company which was to expire at the end of the business day on the closing date, August 31, 1973; and (4) a title policy to be furnished by seller on that date.

At closing, the vendee voiced several objections: (1) the title policy commitment contained a “rights of parties in possession” exclusion; (2) the tract survey indicated a road on the premises; (3) because of a variance, approximately six acres of the tract were unusable by the vendee; and (4) no sales contracts had been delivered to vendee five days prior to the closing date. The vendor stated these objections were invalid and demanded the $10,000 letter of credit before it expired. American Title Company, the escrow agent, agreed with the vendor that the vendee’s objections were immaterial and delivered the letter of credit to the vendor, appellee Caldwell.

Appellant alleges error by the trial court in forty-five separate points. Since the trial court granted appellees’ motion for judgment after hearing appellant’s case, we must view and interpret the evidence in the light most favorable to appellant, disregarding all evidence and inferences favorable to appellees. Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.Sup.1965); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952).

(1] Appellant, in points of error eight through ten, complains of the trial court’s conclusion that appellees fully performed all legal obligations under the earnest money contract. Appellant does not contend he was entitled to physical possession of the title policy on the date of closing, but that the title company was not in a position to issue the policy in conformity with the earnest money contract. The basis of appellant’s complaint is that the title policy wrongfully contained a “right of parties in possession” exception. The earnest money contract called for an owner’s title policy and a general warranty deed conveying the property free and clear of all encumbrances except those set out in Exhibit “C”. The “rights of parties in possession” exception was not mentioned in that exhibit. Although the closing date was August 31, 1973, the title policy commitment containing the exception was issued on or about August 3, 1973. It is our opinion that by failing to raise any objection to the exception until the closing date, appellant, as a matter of law, is estopped from raising such an objection at closing. The testimony of the title company witness, Ruth Winn, was clear, positive and uncontradicted. The “rights of parties in possession” exception was printed in the policy form as required by the company’s underwriters. If a party desired that it be deleted, he would so inform the company prior to the closing date. The title company was willing and able to delete this exception subject only to an on-the-site inspection. Although appellant had approximately twenty-seven days to examine the title commitment and notify appellees of any objection, he elected to wait until the last moment to assert his objection. Appellant, by failing to object in a timely and reasonable manner, led appel-lees to believe that the “rights of parties in possession” exception was acceptable to appellant, and such reliance made it impossible to conduct an on-the-site inspection pri- or to the time that the letter of credit would expire. Estoppel is invoked to protect the justified expectations of the appel-lees. Booty v. O’Connor, 287 S.W. 282 (Tex.Civ.App.-Galveston 1926, writ ref’d).

In point of error number nine appellant alleges the appellee failed to perform its contractual obligations in that the land tendered by appellee differed from the land specified in the earnest money contract. A survey conducted after the execution of the agreement did indicate an isolated six acre strip of land which appellant claims could not be utilized by him for its intended purposes, but his complaint is invalid. The earnest money contract provided for 225 acres, more or less, and this six acre strip is clearly within the variance allowed by the words “more or less.” These words are intended to relieve exactness. Bickler v. Bickler, 403 S.W.2d 354 (Tex.Sup.1966); Lebow v. Weiner, 454 S.W.2d 869 (Tex.Civ.App.-Beaumont 1970, writ ref’d n.r.e.). Additionally, at closing, appellee allowed appellant the option to purchase the land with or without the strip; the latter option included a $2,050 per acre reduction in the purchase price.

In point of error number ten appellant alleges that appellee Caldwell failed to provide appellant with copies of sales contracts five days prior to the closing as required by a provision in the earnest money contract. The sales contracts were purported to be agreements between appellee Caldwell and third party purchasers of small tracts of land on the 225 acre tract. There was no proof, however, that any sales contracts were ever consummated. There being no contracts, none could be provided. The provision requiring the contracts to be delivered to appellant was to become operative only if such contracts in fact existed.

All other points of error have been carefully considered and are overruled.

Affirmed.


author: McKAY, Justice.

text:
    In the Matter of Herman Eugene GILMORE, a minor child.
    No. 1066.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 1, 1977.

      Edith L. James, Office of Dennis L. White, Dallas, for appellant.
    William H. Kugle, Jr., Kugle, Douglas & Skelton, James R. Kittles, Athens, for guardian ad litem.
   McKAY, Justice.

Suit was brought by the State Department of Public Welfare to terminate the parent-child relationship of Ovide L. Gilmore, father, and Herman Eugene Gilmore, a minor child. The trial court terminated the parental rights of Ovide L. Gilmore, and he brings this appeal.

The petition alleged that the natural father voluntarily left the child alone or in the possession of another, not the parent, and expressed an intent not to return; that he knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; that he engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; and he failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition. The father answered by general denial, and plead that the child was taken from his home because of the neglect and abuse by the mother of the child, and that the mother had been treated for mental illness since she was 13 years of age, and that on or about the time the child was taken the mother entered Rusk State Hospital; that he, the father, at the time the child was taken was in financial stress, but that he was now employed earning $130.00 per week and lives with an uncle and aunt, in Dallas, and they are willing to help him provide for the child and that he should have custody.

Trial was before the court, and the court found that “Allie M. Gilmore, the natural mother of the minor child, has executed an unrevoked or irrevocable affidavit of relinquishment of her parental rights; that Ovide L. Gilmore has (a) knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; (b) engaged in conduct which endangers the physical or emotional well-being of the child; and (c) failed to support the child in accordance with his ability during a period of one year ending with [sic] six months of the date of the filing of this petition.” These findings are grounds for termination of the parent-child relationship as set out in Sec. 15.02, Tex.Family Code Ann. (1975).

Appellant, Ovide L. Gilmore, brings three points as follows:

“POINT OF ERROR 1.
“The Court erred when it found that the Respondent, Ovide L. Gilmore, has ‘(a) knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;' because he has sought to provide a home after his divorce in which his son will be free of injurious influences and enabled to develop fully and wholesomely.
“POINT OF ERROR 2.
“The Court erred when it found that the Respondent, Ovide L. Gilmore, has ‘(b) engaged in conduct which endangers the physical or emotional well-being of the child;’ because the divorce Petitioner has filed an affidavit after trial in which she admits that Respondent did not abuse the child.
“POINT OF ERROR 3.
“The Court erred when it found that the Respondent, Ovide L. Gilmore, ‘failed to support the child in accordance with his ability during a period of one year ending with [sic] months of the date of the filing of this petition,’ because Respondent, although in financial stress at the time the child was taken by the Department, is now employed and earning and living with his aunt and uncle who are prepared to help him care for the child while he works.”

While it is not clear what Appellant intends to complain about in his Point 1, we will consider it to be an insufficient evidence point. Ovide L. Gilmore and Allie Mae Gilmore were married in January of 1972. He was 24 years of age, and she was 15. The minor child was born August 13, 1973. When the baby was only a few weeks or few months of age the father would come home from work and find the baby alone with diaper unchanged. The mother was committed to mental institutions several times, and the parents were separated many times. Complaints were made against both parents for abusing the child, and on July 18, 1975, the trial court ordered the temporary custody of the child placed with the Department of Public Welfare, and the parents were allowed five months in which to establish a suitable and satisfactory home atmosphere for the child. The child was two years old at that time. At the time of the trial the father had not seen the child for at least 14 months. Allie Mae Gilmore left Ovide in the latter part of 1975, and he had not seen her since.

When custody of the child was placed with the Welfare Department the child was two years of age but could not talk. At the time of trial Ovide Gilmore was living with an uncle and aunt in Dallas and he claimed the aunt would and could care for the child. Ovide testified that Allie Mae beat the child but that he did not. For the 12 to 14 months immediately prior to trial Ovide did not contribute anything to the support of the child even though he was employed most of that period. He testified he was “barely getting by.”

Cecil Angel, father of Allie Mae Gilmore, testified he observed bruises on the child several times, but he did not actually see anyone beat the child. He further testified that Ovide and Allie Mae would often bring the child to his home saying “Herman is sick,” but “the only thing wrong with him was he was starving to death and staying filthy”; that his wife would clean the baby and feed him and he would be all right again. He said this happened several times, and he and his wife made a complaint to the Welfare Department. He testified that both parents abused the child badly, and that in his opinion Ovide was not emotionally capable of caring for the child.

The sister of Allie Mae, Joyce Angel, testified that she saw Ovide whip the child hard enough to bruise his body on two occasions, that the child was always dirty— never clean, was fed sour milk, was not changed or bathed unless she did it, and was put to bed in a dirty bed. She said the child cried very much, had diaper rash, and both parents would whip him for crying and he would then cry more.

Another sister of Allie Mae, Diana Angel, testified that she had seen Ovide Gilmore beat the child once or twice for crying because he was wet or hungry. Ed Stan-derfer, a psychologist with the East Texas Regional Mental Health and Mental Retardation Center, testified that he counseled both Allie Mae and Ovide, and that the child was dirty and wearing dirty clothes, and that in his opinion Ovide was not emotionally capable of caring for the child. Mrs. Starr Fulcher, Director of the Vaughn Speech and Hearing Center of Medical Center Hospital, Tyler, testified the child was deficient in his speech and vocabulary development, and there was a lag between his chronological age and his vocabulary and speech age. Don Carter, case worker for the Welfare Department, testified that in his opinion the parent-child relationship should be terminated because Ovide could not provide a suitable home, and the learning disabilities of the child would not be overcome.

It is apparent, and we so find, that the evidence is ample to sustain the findings of the trial court. Point 1 is overruled.

By his Point 2 appellant says that the trial court erred by finding that appellant has “engaged in conduct which endangers the physical or emotional well-being of the child,” because the “divorce Petitioner” has filed an affidavit after trial in which she admits that appellant did not abuse the child. The judgment was signed by the trial judge on December 6,1976. Appellant filed notice of appeal on December 8, 1976. On January 4,1977, appellant filed a motion for new trial alleging newly discovered evidence, and attached an affidavit of Allie M. Gilmore in which she stated that during the time she lived with Ovide L. Gilmore, he, Ovide, never beat or mistreated or abused the child, Herman, in any way. The motion for new trial was not filed in time; it was filed after notice of appeal was filed, and on the same day the appeal bond was filed. There is nothing in the record to indicate such motion was presented to the trial judge, and, if so, what action, if any, he took. There is nothing for us to review; point of error 2 is overruled. Rule 329b, T.R.C.P.

Appellant’s Point 3 says that the trial court erred in finding that appellant “failed to support the child in accordance with his ability during a period of one year ending with [sic] six months of the date of the filing of this petition,” because appellant is now employed and earning a living with his aunt and uncle who will help him care for the child. It is undisputed in the record that appellant did not contribute anything to the support of the child for 14 months before the petition was filed. The record reveals appellant was employed almost the entire time; the only period he was not employed consisted of short periods when he voluntarily changed from one employer to another. The appellant does not complain that he was unable to furnish some support; his contention is that he can now do so. This point is overruled.

While the record in this case produces a sad and tragic story, the primary consideration in a case such as this is the best interest of the child. Sec. 15.02, Tex. Family Code Ann. (1975); Hali v. Harris County Child Welfare Unit, 533 S.W.2d 121 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). We agree with the trial court that the best interest of the child is best served -by termination of the parental rights of the father.

Judgment of the trial court is affirmed.


author: EVANS, Justice.

text:
    MAJESTIC BUILDING CORP., Appellant, v. Franklin N. McCLELLAND et ux., Appellees.
    No. 16953.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 1, 1977.
    Thomas D. White, Houston, for appellant.
    William W. Bivin, Kingwood, for appel-lees.
   EVANS, Justice.

This is an appeal from a take-nothing summary judgment rendered against the plaintiff Majestic Building Corp. in an action against defendants Franklin and Dorothy McClelland for foreclosure of a mechanic’s and materialmen’s lien on certain land which the McClellands acquired subsequent to the work and the filing of the mechanic’s lien affidavit. The trial court concluded that the McClellands held superior title to the land by virtue of a foreclosure sale under a prior recorded deed of trust and that Majestic’s mechanic’s and material-men’s lien claim was invalid.

In its original petition Majestic alleged that pursuant to an agreement made in February 1976, it had furnished labor and material of the reasonable market value of $53,151.81 for the repair and remodelling of a house which was located on land owned by Azalea Construction Company. It claimed that it had established its lien by recording a lien affidavit on August 24, 1976, and that the McClellands had acquired title to the property under a deed dated September 7,1976 from Harold Gene Smith, allegedly delivered at 10:00 a. m. on November 2, 1976. Attached to and incorporated by reference in the petition is a photocopy of a conveyance from Smith to the McClellands containing the provision: “This conveyance is subject to any indebtedness recorded against said described property.”

The McClellands answered and filed motion for summary judgment alleging their title to the land by virtue of a foreclosure sale held on November 2, 1976 and a trustee’s conveyance dated November 4, 1976. In their motion and by supporting affidavits the McClellands stated that their title to the property was acquired under a deed of trust dated April 15, 1975 and recorded April 22, 1975 and that the foreclosure sale on November 2, 1976 effectively cut off all liens and claims established subsequent to the recording of their deed of trust. In his supporting affidavit McClelland states that neither he nor his wife accepted a deed from Harold Gene Smith, or authorized anyone to accept a deed on their behalf, and that the deed had never been delivered to him or to his wife. The McClellands’ attorney also filed an affidavit stating that he had not accepted title to the property on behalf of the McClellands and that he had no authority to do so.

On the day of the hearing of the motion for summary judgment, Majestic filed an answer to the McClellands’ motion and attached a supporting affidavit of its attorney and of Harold Gene Smith. In his affidavit, Mr. Smith states that the McClel-lands had been having trouble obtaining the monthly payments due under their note from Azalea Construction Company Inc., and that an agreement had been made between the McClellands and Majestic whereby Smith would take title to the property, make the payments on the note and also make a cash payment in the sum of $5200.00 which included a cash payment to the McClellands’ attorney and the amount due as back taxes on the property. Mr. Smith further states that he delivered the check representing the cash payment to the McClellands’ attorney and that in consideration for his payment, the McClellands agreed not to foreclose under the deed of trust until at least November 6, 1976. He further states that it was agreed that he would leave his executed deed covering the property with McClellands’ attorney upon the understanding that if he did not pay off the balance of the note the deed would be delivered to McClellands’ attorney. He states that because of the actions of the McClellands and their attorney, he was unable to pay the balance due on the note and in order to honor his agreement and to keep from damaging his reputation by foreclosure, he directed Majestic’s attorney to deliver the deed to McClellands’ attorney and that the deed was delivered at 9:40 a. m. on November 2, 1976.

The McClellands by cross-point question the propriety of the trial court’s consideration of Majestic’s response to their motion for summary judgment because the response was not submitted to the court and opposing counsel at least one day prior to the hearing as specified by Rule 166A(c) Texas Rules of Civil Procedure. It has been held that this provision is directory only, and the record does not reflect the trial court abused its discretion in considering Majestic’s summary judgment proof presented on the day of the hearing. Lindley v. Smith, 524 S.W.2d 520, 523 (Tex.Civ.App.—Corpus Christi 1975, no writ); Axcell v. Phillips, 473 S.W.2d 554, 560 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.). The cross-point will, therefore, be denied.

The principal question for this court is whether there are material facts in dispute which should be determined by the trier of fact. Houston Pipeline Co. v. Dwyer, 374 S.W.2d 662 (Tex.1964). It is well established that the summary judgment proceeding cannot be used to decide issues of fact, but rather to ascertain if any genuine issues of material fact exist. Quarles v. Traders and General Ins. Co., 340 S.W.2d 545 (Tex.Civ.App.—Houston 1960, writ dism’d).

In considering whether a genuine issue of material fact is shown by the summary judgment proof, this court must review the evidence in a light most favorable to the party against whom the judgment was rendered. Kimberly Development Corp. v. First State Bank, 404 S.W.2d 631 (Tex.Civ.App.—Houston [1st Dist.] 1966, writ ref'd n. r. e.).

A material issue in the case at bar is whether there was an effective delivery and acceptance of the Smith deed. This issue is material to the ultimate determination of whether the McClellands acquired title to the land subject to the lien held by Majestic.

Whether a conveyance has in fact been delivered is a matter for determination by the trier of fact. Williams v. Anderson, 414 S.W.2d 731 (Tex.Civ.App.—Dallas 1967, no writ). If a genuine fact issue exists concerning the circumstances of delivery, the issue cannot be determined by summary judgment proceedings. Estes v. Reding, 377 S.W.2d 233 (Tex.Civ.App.—El Paso 1964, writ ref’d n. r. e.).

The McClellands contend that the question of the sufficiency of the facts necessary to constitute acceptance of a deed is a question of law to be determined by the court. The McClellands cite Chandler v. Hartt, 467 S.W.2d 629 (Tex.Civ.App.—Tyler 1971, writ ref’d n. r. e.), wherein the court stated:

“While the ascertainment of whether there was in fact a delivery and acceptance of the deed in question is for the jury, the sufficiency of the facts necessary to constitute acceptance of a deed is a question of law for the court.”

The holding in the Chandler case is inapplicable to the instant case because the question here does not involve the sufficiency of the evidence, but rather whether the evidence raises a genuine issue of fact concerning the delivery and acceptance of the deed in question. Whether a particular set of facts constitutes an effective delivery is a question of law, but the question of whether there has, in fact, been a delivery is a question which must be decided by the trier of fact. Kuhn v. Downs, 208 S.W.2d 154 (Tex.Civ.App.—Waco 1948, writ ref’d n. r. e.).

The facts in the case at hand bear close resemblance to those before the court in Tanner v. Doty, 311 S.W.2d 508 (Tex.Civ.App.—Port Worth 1958, writ ref’d n. r. e.). In that case a landowner had informed his mortgagee that he could not pay the mortgage indebtedness and that he desired to surrender the property. The mortgagee caused a deed to be prepared and forwarded to the owner for execution upon the consideration that the remaining indebtedness would be canceled. The mortgagee thereafter brought suit to foreclose the lien and to recover the debt, and in response to the landowner’s motion for summary judgment, the mortgagee contended that although he had received the landowner’s deed in the mail, it had never been accepted by him. The trial court’s judgment in favor of the landowner was reversed on appeal, the court holding that a fact issue was presented as to whether there was an effective delivery and acceptance of the conveyance. In per curiam opinion the court stated:

“Where an issue is raised the proof must indisputably show both an intention on the part of the grantor to deliver the deed as a conveyance of the property and a mutual and concurrent intention on the part of the grantee to accept the same as a conveyance of the property before it could be said as a matter of law that delivery was complete. What constitutes delivery essential to pass title is a question of law, but whether there has been in fact a delivery is for the trier of fact.” 311 S.W.2d 510.

The summary judgment proof in the case at bar shows that a genuine issue of material fact exists as to the effective delivery of the Smith deed to the McClellands. The McClellands’ motion for summary judgment was therefore improperly granted. Estes v. Reding, supra.

There is an additional reason why the summary judgment must be reversed upon the record before this court.

A mechanic’s and materialman’s lien is deemed superior to a prior recorded deed of trust lien where the improvements can be removed without material injury to the land or to pre-existing improvements. First Nat’l Bank in Dallas v. Whirlpool Corp., 517 S.W.2d 262, 269 (Tex.1974); American Amicable Life Ins. Co. v. Jay’s Air Conditioning and Heating, Inc., 535 S.W.2d 23, 25 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.). Since the summary judgment proof does not establish the nature of the improvements made by Majestic, or whether such improvements could be removed without material damage to the land or to pre-existing improvements, the evidence does not establish as a matter of law that the mechanic’s lien was inferior to the prior recorded deed of trust. In this summary proceeding the burden was upon the McClellands to establish as a matter of law that there was no genuine issue of fact as to one or more elements of Majestic’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). This the McClellands failed to do.

The judgment of the trial court is reversed and the cause is remanded.