author: OSBORN, Justice.

text:
    Jeanne H. ELMER, Appellant, v. Lee Nelson ELMER, Appellee.
    No. 6692.
    Court of Civil Appeals of Texas, El Paso.
    April 19, 1978.
    Rehearing Denied May 17, 1978.
    Bean, Zavaleta & Rosado, P. C., Woodrow W. Bean, II, Richard R. Alvarado, Johnson, Allen & Aycock, P. C., James T. Allen, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, David P. Hassler, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves the effect of a Kansas divorce decree upon military retirement benefits when the decree was silent as to the division of such benefits.

These parties were married in August, 1953, and divorced in December, 1976. The Appellee is a retired Lieutenant Colonel whose military retirement benefits are apparently in excess of $1,000.00 per month. The Kansas divorce decree divided the parties’ property according to a settlement agreement, but no mention was made of retirement pay. In this case, Appellant seeks a one-half interest in those benefits. Appellee obtained a summary judgment denying the relief sought, and we affirm.

Although Kansas is a separate property state, these parties resided in community property states, including Texas, during a part of the time these retirement benefits were earned. The summary judgment proof includes not only the divorce decree and settlement agreement, but some of the correspondence between the attorneys as to the negotiations leading up to the final agreement. In February, 1976, counsel for Mr. Elmer offered, among other things, to pay “alimony in a lump sum of $25,800.00.” After some negotiations in August, 1976, counsel for Mrs. Elmer proposed that Mrs. Elmer receive “45.5% of gross retirement benefits received from the United States Army by Lt. Col. Elmer until her death or remarriage.” By reply, counsel for Mr. Elmer said his client rejected the 45.5% provision, but that he indicated that he would “pay a maximum of $450 per month, which is approximately the percentage that you are requesting of his net.” Counsel for Mrs. Elmer responded: “We are willing to accept $450.00 as alimony until the death of either party or the remarriage of Mrs. Elmer.” The property settlement agreement did in fact provide for alimony in the sum of $450.00 commencing in January, 1977, and each month thereafter, with payments to terminate upon the death or remarriage of Mrs. Elmer. There was also a provision for alimony to increase or decrease based upon increases in the income of the respective parties.

As a part of his summary judgment proof, the Appellee filed a motion pursuant to Rule 184a, Tex.R.Civ.P., for the trial Court to take judicial notice of the common law, certain statutes, and Court decisions of the State of Kansas which relate to the issue in this case.

Since neither the property settlement agreement nor the divorce decree mentioned military retirement benefits, Mrs. Elmer contends that under the holding in Busby v. Busby, 457 S.W.2d 551 (Tex.1970), the judgment in the divorce suit does not preclude her from seeking a partition of that portion of these benefits which are community property.

If the parties had been divorced in Texas, she would be entitled to the relief sought. But Kansas Courts do not apply the same rule. In Calkins v. Calkins, 155 Kan. 43, 122 P.2d 750 (1942), the Court reviewed the rule as previously announced by Kansas Courts in divorce cases and said:

“ * * * In an action for divorce matters of alimony, division of property and all obligations arising out of or connected with the marital relation, may be presented and adjusted. In this state it is the general and well-established policy of the law to require every question properly involved in a divorce action to be finally settled and adjudicated at the time the marital tie is dissolved. A few of the decisions are Roe v. Roe, 52 Kan. 724, 35 P. 808, 39 Am.St.Rep. 367; McCormick v. McCormick, 82 Kan. 31, 107 P. 546; Heivly v. Miller, 102 Kan. 313, 169 P. 1141; Pinkerton v. Pinkerton, 122 Kan. 131, 251 P. 416; Noonan v. Noonan, 127 Kan. 287, 273 P. 409; Mayfield v. Gray, 138 Kan. 156, 23 P.2d 498.
“It expressly has been decided that all matters which properly may be presented and considered in a divorce action must be presented and, if not presented, the judgment is as full and complete a bar as if the matter had been fully tried and determined. McCormick v. McCormick, Pinkerton v. Pinkerton, and Mayfield v. Gray, all supra. There are other decisions to the same effect. The judgment of divorce, although it may not expressly so declare, excludes everything not expressly mentioned or reserved in it. * * ”

That decision was followed and was the basis for the decision in Mitchell v. Mitchell, 171 Kan. 390, 233 P.2d 517 (1951). The Court, in that case, quoted the above language from the Calkins case and concluded:

“Not much more need be said. The authorities are fully discussed in that opinion. All matters of property settlement between the plaintiff and defendant could have been adjudicated in the second divorce action. Since they could have been adjudicated there and were not, they cannot be the subject of subsequent litigation.”

On rehearing, the Court adhered to its earlier decision. Mitchell v. Mitchell, 172 Kan. 212, 239 P.2d 979 (1952).

The rule continues to be followed. In Breidenthal v. Breidenthal, 182 Kan. 23, 318 P.2d 981 (1957), the Court again said that a final judgment of divorce settles all property and alimony rights, whether or not they have been presented and considered by the Court. And in Schnug v. Schnug, 197 Kan. 174, 415 P.2d 283 (1966), the Court again noted “the general policy of the law of this state to require every question involved in a divorce action to be disposed of by the judgment finally rendered; * * * all matters which may be presented and considered must be presented, and if not presented, the judgment is as full and complete a bar as if the matter had been fully tried and determined.”

We believe that the full faith act and credit clause of the Federal Constitution and the Act of Congress implementing that provision require that we apply the finality of judgment rule as set forth in the Kansas Courts. U.S.C.A.Const. Art. 4, Sec. 1; 28 U.S.C.A. Sec. 1738; Gibson v. Gibson, 286 S.W.2d 216 (Tex.Civ.App. — Beaumont 1955, no writ). In effect, we are required to give the Kansas judgment such faith and credit as it has by law or usage in the Courts of Kansas, and the highest evidence of what faith and credit a judgment has in the state of its origin is the decisions of the Court of last resort of that state. Free v. Western Union Telegraph Co., 158 Wis. 36, 147 N.W. 1040 (1914), error dism’d, 242 U.S. 613, 37 S.Ct. 20, 61 L.Ed. 527 (1916). Since the Courts of Kansas clearly would not permit this second suit to determine the property rights of these parties, neither may the Courts of this State permit such suit. This is required in full faith and credit cases even though the rule being applied is contrary to the public policy of the situs state. Rich v. Con-Stan Industries, 449 S.W.2d 323 (Tex.Civ.App.—Tyler 1969, no writ).

The Appellant’s points of error are overruled and the summary judgment in favor of the Appellee is affirmed.


source: Caselaw Access Project

author: PRESLAR, Chief Justice.

license: Public Domain

text:
    INDUSTRIAL UNDERWRITERS INSURANCE COMPANY, Appellant, v. Rafael S. DELGADILLO, Appellee.
    No. 6647.
    Court of Civil Appeals of Texas, El Paso.
    April 19, 1978.
    Rehearing for Appellant and Rehearing for Appellee Denied May 17, 1978.

      Scott, Hulse, Marshall & Peuille, Charles R. Jones, El Paso, for appellant.
    Joseph (Sib) Abraham, Jr., Duane A. Baker, Charles Louis Roberts, Merkin, Gibson & Hines, William L. Merkin, El Paso, for ap-pellee.
   OPINION

PRESLAR, Chief Justice.

This is an appeal from an award of total and permanent compensation in a workmen’s compensation case. The principal question presented is the effect of the jury panel being informed of the award made by the Industrial Accident Board in the case.

During voir dire, Appellee’s counsel made the following statement:

“Now, this case comes to you from an award made by the Industrial Accident Board in Austin, Texas. The Industrial Accident Board sits; they hear whatever they consider appropriate. They make an award and then either side has the right to appeal that award from the Industrial Accident Board. In this case Mr. Jones and his insurance company, are appealing because they were unhappy as they have every legal right, they’re appealing the judgment and decision of the Industrial Accident Board in Austin. * * *”

We are of the opinion that, considering the record as a whole in this case, this disclosure of the Board’s award presents reversible error.

It has long been the settled rule in Texas that the admission of the award of the Industrial Accident Board into the record is error. Tanner v. Texas Employers’ Insurance Association, 438 S.W.2d 395 (Tex.Civ. App.—Beaumont 1969, writ ref’d n. r. e.); Federal Underwriters Exchange v. Bickham, 138 Tex. 128, 157 S.W.2d 356 (1941); Hartford Accident & Indemnity Co. v. Thurmond, 527 S.W.2d 180 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). Questions presented, then, are whether there was a waiver of the error in this case and whether the matter is in fact reversible error.

The record reflects that prior to the voir dire examination of the panel, Appellant presented its motion in limine informing the Court that counsel for Plaintiff had stated that he intended to inform the jury panel that the case was presented to the Industrial Accident Board, that the Board had made an award, and that the Defendant/Insurance Company had appealed. This, the Appellant asked the Court not to permit. The Court did not rule on the motion in limine, but carried it along with the case. By agreement of counsel, and with permission of the Court, counsel for Appellant then dictated his objections in advance — “so as to avoid further prejudice of such comments in the presence of the jury.” Then, on voir dire, counsel for Plaintiff/Appellee made the statement above quoted. This was followed by a motion for mistrial by Defendant/Appellant. Appellee urges that the statement, if error, is curable, and any harmful effect could be eliminated by a trial judge’s instruction to the jury to disregard, and that Appellant, by failing to ask for such instructions, has waived the error. We are unable to agree that waiver occurred here where Appellant had, with permission of the Court and agreement of counsel, dictated his objections to the statement in advance and followed that with a motion for mistrial after the statement was made. A basis of the waiver rule is to prevent a party from having two bites at the same apple; if an argument is of a curable nature, an objection must be made promptly and instruction requested, or the error is waived; to do otherwise allows a party to gamble upon a favorable verdict, and then if disappointed, afterward seek a new trial. Tanner v. Texas Employer’s Insurance Association, supra. Appellant did not lay behind the log, but informed the Court of its objections, and we hold that no waiver occurred.

We turn now to the question of whether or not the statement by counsel presents reversible error. Most of our guidelines come from cases involving jury argument, but they are analogous to the situation before us in that they are both statements by counsel. The test is laid down in Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954), and reaffirmed in Texas Sand Company v. Shield, 381 S.W.2d 48 (Tex.1964). In the Haywood case, the Supreme Court stated:

“ * * * The true test is the degree of prejudice flowing from the argument — whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict. * *

In Texas Sand Company v. Shield, supra, the Court repeated that test and then laid down the rule:

“Each departure from this degree of ethical conduct, when properly objected to and preserved for review, requires this court, under the rules and the authorities, to examine the entire record to determine whether an argument was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. It seems that lawyers, as officers of the court, would refrain from injecting into a case matters that are entirely foreign to the issues involved and which could easily, under some situations, bring about a reversal.”

We have followed that rule in this case, and we conclude that reversible error is shown.

The questions presented for jury determination were the duration and extent of the injuries of the Appellee. There was no dispute over the fact that the accident occurred and that an injury had resulted. It was stipulated that the Appellant had paid Appellee’s medical bills; much evidence was presented without objection as to the injuries received by the Appellee. Appellant made no denial of some of the injuries, but did contest the claim that they caused total and permanent disability; in other words, the true contest was the extent and duration of disability. In that situation, the disclosure that the insurance company was dissatisfied and unhappy with the award gave the jury the distinct impression that that award was for total and permanent disability; that could have influenced their determination of those very issues as presented to them by the Court’s Charge. While Appellee can point to much evidence as to injuries as such, that is a different story from the evidence presented as to whether the incapacity was total and/or whether such disability was permanent. As to each of the • questions of whether the disability was total and whether it was permanent, there is evidence pro and con.. The evidence is not decisive or compelling as to those issues. We conclude that the statement was such as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

Appellee relies on Federal Underwriters Exchange v. Bickham, supra, for his contention that the error, if any, was not reversible error. There, the plaintiff’s attorney on voir dire read a portion of the pleadings that said: “ ‘This suit was brought by Federal Underwriters Exchange to set aside an award made by the Industrial Accident Board.’ ” Unlike the case before us, the main issue in the case was not the extent and duration of the injury sustained by the employee, for it was a death action. The Court held that the reading of that part of the petition did not disclose the effect of the award of the Industrial Accident Board, and therefore the reading presented no reversible error. The Court noted that it was obvious from the record that the incident in no wise improperly influenced the jury in the case; that during the course of the trial,' it was admitted in open Court that the employee received injuries resulting in his death. It is well to note that the Court also said:

“We recognize it as a sound rule that upon a trial de novo it is improper for counsel to disclose to the jury the decision previously made by another jury or board in the same case. * * * [citing numerous authorities].”

The Court also said:

“We do not wish to be understood as approving the conduct of counsel in any case in placing before the jury, either directly or indirectly, the fact that the award had been favorable to the claimant. We merely hold that under the facts of this particular case what was said did not result in any material injury to the insurance company.”

That the decision was in fact limited to the facts of that case was established some five years later when the Supreme Court found no reversible error in the decision by the Eastland Court of Civil Appeals in the case of Associated Employers Lloyds v. Landin, 205 S.W.2d 662 (Tex.Civ.App.— Eastland 1947, writ ref’d n. r. e.). In that case, the claimant’s attorney, on voir dire examination of the jurors and in argument to the jury, disclosed that the Board made an award to the employee and that the insurance company was appealing that award. The Eastland Court of Civil Appeals said:

“Under the record as made, and in view of the fact that the issue as to the extent of the injury of the appellee was disputed, we are of the opinion that the matters complained of constituted reversible er-

Appellee also places reliance on Texas Employers Ins. Ass’n v. Poe, 152 Tex. 18, 253 S.W.2d 645 (1952), wherein counsel for the insurance company asked the plaintiff the following question:

“ ‘After you filed your claim down before the Industrial Accident Board and they didn’t give you anything, you filed your suit here in this court, didn’t you?’ ”

That case is distinguishable from ours in that the plaintiff’s objection to this question was sustained, the question was never answered, and the trial Court instructed the jury not to consider the question. The Supreme Court also noted that the plaintiff pled and read to the jury the fact that he did not intend to abide by the award of the Industrial Accident Board, so that the jury already knew that plaintiff was dissatisfied with the Board’s award. It then held that, under the circumstances of the case, the question was not so inflammatory that it could not be cured by the trial Court’s instructions, and that because of the Court’s instructions, it was not error requiring a reversal.

In view of the fact that this case must be tried again, we turn to Appellant’s Point of Error Number Three on the question of the admissibility of the “Notice of Injury and Claim for Compensation” filed with the Industrial Accident Board by Ap-pellee. Under the facts as presented at this trial, the instrument would be admissible for the limited purposes of impeachment of Appellee’s testimony as to injuries later claimed. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952).

The judgment of the trial Court is reversed and the cause is remanded for another trial.


author: NYE, Chief Justice.

text:
    BRASELTON-WATSON BUILDERS, INC., Appellant, v. C. B. BURGESS d/b/a Burgess Construction Company, Appellee.
    No. 1283.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 27, 1978.
    Rehearing Denied June 8, 1978.

      James R. Harris, Corpus Christi, for appellant.
    David T. Burkett, Corpus Christi, for ap-pellee.
   OPINION

NYE, Chief Justice.

This is a suit brought by plaintiff to recover a $700.00 balance due on an oral sub-contract for work done for defendant builder in connection with the construction of a home located on Xanadu Street in Corpus Christi, Texas. The defendant builder, Braselton-Watson Builders, Inc., filed a cross action requesting judgment for the same amount which had been withheld by defendant because of allegedly deficient work performed by the plaintiff at another home site located on Cherry Hills Street in Corpus Christi. The case was tried to a jury, and at the close of the evidence, the trial court directed a verdict for plaintiff for $700,00 due plaintiff on the Xanadu project and then submitted defendant’s cross action to the jury. Based on the jury’s answers to special issues, the trial court denied all relief to the defendant builder on its cross action. Defendant has perfected its appeal to this Court.

Defendant Braselton-Watson Builders, Inc., is a corporation which engages in the home building business in Corpus Christi, Texas. Plaintiff C. B. Burgess, d/b/a Burgess Construction Company engaged in foundation and concrete slab work for various home builders in the Corpus Christi area. The dispute between the parties concerns two oral contracts whereby plaintiff completed foundation and slab work at two of defendant builder’s project sites, one located on Xanadu and the other on Cherry Hills in Corpus Christi. The foundation and slab work for the Cherry Hills project was completed and paid for first, and thereafter plaintiff completed the work at the Xanadu location. Plaintiff then submitted an invoice to defendant for $2,890.00 which represented the agreed price for the Xanadu location. By a check dated March 5, 1975, defendant builder paid plaintiff $2,190.00 for the Xanadu project, $700.00 less than the amount of the invoice. A notation on the lower left hand corner of the check indicated that $700.00 was being withheld pending “completion of repairs [at] 4934 Cherry Hills”.

Plaintiff then instituted suit on the $700.00 deficiency against “Fred Braselton and R. L. Watson, d/b/a Braselton Watson Builders." The petition recited that service of process could be had on Mr. R. L. Watson at 4249 Mulligan, Corpus Christi, Texas. Braselton and Watson filed a general denial in their individual capacities. Two years after plaintiff’s cause of action accrued, defendants Braselton and Watson filed an amended answer alleging that they had never carried on a business as Fred Brasel-ton and R. L. Watson d/b/a Braselton Wait-son Builders. Defendants specifically denied under oath that they were partners as alleged in plaintiff’s petition. In addition, defendants alleged that the plaintiff’s suit was based on an agreement between plaintiff and the corporation “Braselton-Watson Builders, Inc.”

Plaintiff then filed an amended petition naming as defendant “Braselton-Watson Builders, Inc.” Defendant Braselton-Wat-son Builders, Inc., filed an answer alleging that plaintiff’s suit was barred by the two-year statute of limitations. Defendant corporation also filed a cross action against plaintiff alleging that the work plaintiff performed for defendant on the Cherry Hills project was deficient and failed to conform to the agreement between the parties; that such deficiencies damaged defendants in the amount of $750.00; and that defendants had exercised its lawful right of offset by deducting $700.00 in its payment to plaintiff for the Xanadu project.

At the close of the evidence, the trial court denied defendant’s motion for an instructed verdict based on its limitation defense and granted plaintiff’s motion for an instructed verdict for $700.00 representing the outstanding balance owed to plaintiff for slab work on the Xanadu project. The trial court submitted special issues to the jury concerning defendant’s cross action to establish the validity of the offset it had previously taken. In response to special issues, the jury, in relevant part, found: 1) that the plaintiff failed to complete the Cherry Hills project in accordance with the plans and specifications; 2) that such failure was not a producing cause of any damages or injury to the defendant; and 3) that $700.00 would be the reasonable cost to correct the deficient work at the Cherry Hills project. Based on the jury’s findings, the trial court granted plaintiff’s motion for judgment on the verdict, and denied defendant’s motion to disregard special issue number two above and to render judgment in favor of defendant on its cross action. Defendant builder brings forward three points of error.

In point of error one, defendant builder contends that the two-year statute of limitations applicable to plaintiff’s claim had run prior to the time plaintiff filed its amended petition naming, for the first time, “Braselton-Watson, Inc.” as a party defendant. Plaintiff maintains on the other hand, that its original petition which was filed within the statutory time period against “Fred Braselton and R. L. Watson, d/b/a Braselton Watson Builders,” merely misnamed the defendant it intended to sue and therefore, its original petition tolled the statute of limitations as to “Braselton-Wat-son, Inc.” Defendant builder argues that plaintiff’s original petition was nothing more than a suit against a partnership while its amended petition stated a cause of action against a corporation which, in effect, is a suit against a new and different party. Therefore, the “misnomer” cases are inapplicable to this situation. We disagree.

If plaintiff sued the right party but merely misnamed the corporation, then service upon R. L. Watson, one of its officers and principal shareholders, was proper and the corporation was then under a duty to plead such “misnomer” and seek abatement. Its failure to file a plea in abatement would constitute a waiver of the corporation’s right to abate the lawsuit and the subsequent amendment of plaintiff’s pleadings correctly stating the corporation’s name would relate back to the date of plaintiff’s original petition. Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840 (1939); Abilene Independent Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847 (1921); Astro Sign Company v. Sullivan, 518 S.W.2d 420 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Thomas v. Cactus Drilling Corporation of Texas, 405 S.W.2d 214 (Tex.Civ.App.—Austin 1966, no writ); Craig v. White Plaza Hotel, 289 S.W.2d 625 (Tex.Civ.App.—Waco 1956, writ ref’d n. r. e.).

We must point out and distinguish the cases where a plaintiff has sued and obtained service upon the wrong party. In those situations, the plaintiff has made a mistake in the identity of defendant and the statute of limitations continues to run until the plaintiff files an amended petition to join the proper party in a new lawsuit. In such an instance, the defendant is not under any duty to notify the plaintiff of his mistake. Davis v. Outdoor Equipment Co., 551 S.W.2d 72 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Astro Sign Company v. Sullivan, supra; Gillette Motor Transport Co. v. Whitfield, 160 S.W.2d 290 (Tex.Civ. App.—Fort Worth 1942, no writ); Cosand v. Grey Wolfe Co., 262 S.W.2d 547 (Tex.Civ. App.—Galveston 1953, no writ); West v. Johnson, 129 S.W.2d 811 (Tex.Civ.App.— Fort Worth 1939, writ ref’d).

In the case before us it is undisputed that R. L. Watson was properly served with citation had plaintiff correctly named the defendant corporation in its original petition. Plaintiff construction company intended to sue the business entity with which it had its sub-contract. However plaintiff sued Braselton-Watson, Inc., as though it were a partnership and not a corporation. Defendant builder relies on Davis v. Outdoor Equipment Co., supra to support its contention that “a partnership is a different party from a corporation and suing one is not suing the other.” In Davis, however, two separate business entities existed. One, a partnership, and the other a corporation, which shared the common name “Outdoor Equipment Company.” In Davis, the plaintiff incorrectly sued and served the corporation. In our case only one business entity exists and it was admitted to be Braselton-Watson Builders, Inc. In their amended answer Braselton and Watson pled under oath that they were not partners and had never conducted business under the name “Fred Braselton and R. L. Watson d/b/a Braselton Watson Builders.” Plaintiff sued the correct business entity only under the wrong name. See West v. Johnson, supra, at 815.

The primary purpose of a statute of limitations is to compel the plaintiff to institute a cause of action within a reasonable time so that the opposite party has a fair opportunity to defend while witnesses are available and while the evidence is fresh in their minds. Continental Southern Lines v. Hillard, 528 S.W.2d 828, 831 (Tex.Sup.1975). One justification for tolling the statute of limitations in misnomer cases, is that in spite of incorrect name, the party intended to be sued has been served and has been put on notice that he, and not some other person, is the intended defendant. Plaintiff’s petition and attached invoice clearly apprised defendant builder that it was the intended defendant and that the subject matter of this suit concerned an oral contract to which it was a party. Defendant’s point of error one is overruled.

In points of error two and three defendant makes two arguments to support its contention that the trial court erred in failing to disregard the jury’s answer to special issue number two above. Defendant contends first that this special issue should be disregarded as a matter of law because in special issue number one the jury found that plaintiff, Burgess Construction Company, failed to complete the foundation work at 4934 Cherry Hills in accordance with the plans and specifications, and in special issue number three the jury found that the reasonable cost to correct the deficient work would be $700.00. Defendant argues that causation is not a contested issue in a contract case when the jury has found a breach of the contract and also found the appropriate measure of damages.

Defendant argues here that special issue number two should not have been submitted to the jury. This special issue asked the jury to determine in effect whether plaintiff’s failure to complete the Cherry Hills project caused any injury or damage to the defendant. An elementary principle of contract law is that the complaining party must establish his right to recover compensatory damages by proving that he suffered some pecuniary loss as a result of the breach. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 486 (1952); Jones v. George, 61 Tex. 345, 350 (1884). In general, the right to recover compensatory damages for the breach of a contract will be defeated if 1) no damage was suffered by the complaining party despite the breach; e. g., Baw Manufacturing Company v. Slaks Fifth Avenue, Ltd., 547 F.2d 928, 931 (5th Cir.1977); United States and United Insulation Company, Inc. v. Williams & Dunlap, 210 F.Supp. 492 (W.D.La.1962); Jones v. George, supra; Stewart v. Basey, supra; or 2) if the damages which he sustained did not result from the breach; e. g., LeBlanc, Inc. v. Gulf Bitulethic Company, supra; Pacific Coast Engineering Co. v. Trinity Construction Co., 410 S.W.2d 797, 800 (Tex.Civ.App. — Waco 1967, writ ref’d n. r. e.); Sinclair Refining Co. v. Costin, 116 S.W.2d 894, 898 (Tex.Civ.App.—Eastland 1938, no writ).

In addition, the burden was on defendant to object to the form of objectionable issues and to submit substantially correct issues pertaining to its cross action. Rule 279, Texas Rules of Civil Procedure. We find no complaint in the record directed against this special issue, or any of the other special issues the trial court submitted to the jury. Although we need not express an opinion as to the form in which this special issue was submitted, we find that the issue did embrace an ultimate fact to be determined by the jury that was essential to defendant’s cross action. Therefore, the trial court did not err in failing to disregard the jury’s answer as a matter of law. Defendant’s second point of error is overruled.

Defendant next argues that the jury’s negative answer to special issue number three was caused by the trial court’s failure over defendant’s objection, to exclude evidence concerning a collateral transaction which allowed the jury to draw the improper inference that the defendant builder was not damaged in spite of the plaintiff’s failure to comply with the plans and specifications. It was undisputed at trial that Fred Braselton, one of the principal shareholders of the defendant corporation, was the initial occupant of the Cherry Hills home in question. He testified at length concerning the defects that existed in the patio at his Cherry Hills residence that allegedly caused water to accumulate after a rain. He admitted that he had sold this home to another individual six months prior to the trial, and that he and his family had moved into another home. Braselton was asked whether he had told the new purchaser about the alleged defects existing in the patio. Defendant’s counsel objected to this question on the basis that it pertained to a collateral matter and had nothing to do with this lawsuit. After a short discussion with the trial judge outside the presence of the jury, (the record does not indicate what was said), defendant’s counsel stated:

“On the record, we offer to stipulate that the difficulties had not been corrected and that after the offer to make such stipulation the Court overruled our objection ... [to the question].”

Braselton then testified that the “purchaser looked at the house, liked what he saw and made an offer which we accepted.” He testified that he did not inform the purchaser of the alleged defects nor did he allow an offset in the purchase price to compensate for such defects.

The defendant now complains that Fred Braselton, as an individual, is not a party to the lawsuit and that this evidence allowed the jury to erroneously conclude that, since Braselton as an individual had not been damaged, the corporation had also not been damaged by plaintiff’s defective concrete slab work. The record is silent as to how Braselton came into possession of the house in question. There was no evidence concerning the sale from the corporation to Braselton or the terms of Braselton’s subsequent sale to the individual. If Braselton lived in the home but did not purchase it from the defendant corporation then the subsequent sale by Braselton was actually a sale on behalf of the corporation. Such evidence would be directly relevant to the damage question, especially since Braselton failed to inform the purchaser of the defects and did not reduce the purchase price to reflect damages to the corporation. In any case the evidence would be admissible at the time it was offered subject to being connected to the corporate ownership later. We do not have any idea what discussions took place at the bench or outside of the record. The evidence was not inadmissible per se at the time it was offered. If the evidence was not later connected up, or if the defendant later proved it had sold the property to Braselton as an individual, then defendant should have moved to have the evidence stricken and the jury instructed to disregard it. This he did not do.

As a general rule for evidence to be considered relevant there must be some logical connection either directly or by inference between the proffered evidence and the ultimate fact to be proved. Since the defendant did not prove that it had the patio repaired or suffered a loss or deduction when it sold the property, if it did, then the logical evidentiary inference would support the jury’s answer that defendant suffered no loss. The defendant corporation had the burden to prove that it suffered some damages as a result of plaintiff’s breach of its contract. It was the defendant corporation’s responsibility to introduce evidence from which the jury could assess the amount of damages with some degree of certainty.

We have reviewed the entire record and have failed to find that the defendant corporation suffered any actual damages as a result of the defects in the patio. In fact there was no evidence that would have supported an opposite answer to special issue number two above. Since the defendant corporation’s principal stockholder lived in the house at the outset and sold the house to a new purchaser without deduction for the defect in the patio, the defendant corporation has not demonstrated that the admission of this particular evidence constituted error that caused or probably caused the rendition of an improper verdict. Rule 484, T.R.C.P. Warren v. Fort Worth & D. C. Ry. Co., 208 S.W.2d 569, 571 (Tex.Civ.App.—Fort Worth 1948, writ ref’d n. r. e.); see also Texas State Bank of Austin v. Sharp, 506 S.W.2d 761 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.); Otto v. Otto, 438 S.W.2d 587, 590 (Tex.Civ.App.—San Antonio, 1969, no writ); Pittman v. Baladez, supra; Mueller v. Central Power and Light, 403 S.W.2d 901, 905 (Tex.Civ.App.—Corpus Christi, 1966, no writ); Rule 503, T.R.C.P. Defendant’s third point of error is overruled.

The judgment of the trial court is AFFIRMED.


text:
    Charles L. GUNN et al., Appellants, v. Ruben SCHAEFFER et al., Appellees.
    No. 6705.
    Court of Civil Appeals of Texas, El Paso.
    May 3, 1978.
    Howard Jefferson Gibbs, El Paso, for appellants.

      Mayfield, Broaddus & Perrenot, Francis C. Broaddus, Jr., James B. McIntyre, El Paso, for appellees.
   OPINION

OSBORN, Justice.

This summary judgment case involves the authority of an apartment house manager to act for the owners of the apartments in borrowing money and issuing short term certificates to evidence such indebtedness. The trial Court concluded that the owners were not liable and granted the motion for summary judgment. We affirm.

The Appellants were residents of an apartment complex known as Sagewood Apartments. The complex is owned by Sagewood Associates, Ltd., a Texas limited partnership, whose general partners are Mason & Schaeffer, Inc., Ruben Schaeffer and John D. Mason. From September, 1972, until June, 1976, Mr. and Mrs. Nick Bikos were managers of the apartments. Shortly before taking this position, they had moved to El Paso from Indiana where Mr. Bikos had operated a bar and spent considerable time gambling. He still owed about $18,000.00 in gambling debts when they left Indiana and was under considerable pressure to pay off these debts. As a result of heart problems which had disabled him, Mr. Bikos received social security disability payments. It was agreed that his wife would be hired as manager of the apartments and the entire salary paid to her, so as not to affect his social security income. Nevertheless, both Mr. and Mrs. Bikos actually served as apartment managers. They rented apartments, collected rent, made deposits and provided for necessary maintenance. They had no authority to write checks on the account where the rent money was deposited.

Beginning in December, 1972, Mr. Bikos permitted some tenants who desired to do so to pay a year’s rent in advance and receive a small discount on their normal monthly payments. Rather than depositing the year’s rent, he deposited one month’s rent and kept the remainder which he used to pay on his gambling bill back in Indiana, or to pay personal living expenses in El Paso, or to provide funds for his current gambling operations. As the advance rental plan spread among the tenants, he had more advance money to use to pay the monthly rent of those whose money he had pocketed for himself in prior months.

Seeing how easy it was to obtain advance rentals, and as his need for more funds increased to meet the rental payments of those who had already paid in advance, Mr. Bikos devised a plan to sell short term savings certificates to the tenants. These certificates were issued in the name of Sagewood Apartments, Inc., and bore the name of Nick Bikos as manager and a ficti-cious name signed by Mr. Bikos as treasurer. The certificates provided for interest in excess of that paid by any bank or savings association.

Like most such plans, this one concluded with Nick Bikos being indicted for felony theft and the owners of the apartments being sued by the three Appellants in this case for $20,200.00 which they had paid for the worthless certificates. They alleged a conspiracy “by fraud and deceit to swindle, cheat, embezzle and convert from the Plaintiffs" the amounts paid for the purchase of the certificates of indebtedness. They also alleged that Nick Bikos was the agent, servant and employee of Defendants, who were responsible for his sale of the certificates held by Appellants.

The Appellees moved for summary judgment on the grounds that the wrongful and illegal acts of Nick Bikos were solely for himself, without authority from or knowledge of the Appellees who contended that they were not responsible for his unauthorized acts. They filed as supporting proof the deposition of Mr. Bikos in which he acknowledged the illegal scheme, but testified quite frankly that it was all his idea to try to raise money to pay gambling debts. When asked if he was not concerned about the fact that word of the scheme might get to Mr. Schaeffer or his corporation, he said: “Very concerned. Very concerned. But the other trouble I was in was way bigger than that concern.” He testified that he had no authority to issue the certificates, that the owners never knew about his scheme, and that they never received any of the funds. He said that he acted on his own and no one else was involved, although he admitted that when he sold the certificates, he represented to the purchasers that the management of the apartments originated and were behind this plan to raise additional capital.

The Appellees also filed the affidavit of Ruben Schaeffer. He stated that none of the owners ever discussed the issuance and sale of certificates of indebtedness to any persons. He said none of the owners ever authorized Nick Bikos to issue and sell certificates of indebtedness to any person. He also said the conduct of Nick Bikos in selling certificates of indebtedness was without the knowledge of, or authority, consent or direction from the apartment owners.

The reply affidavit of Appellants states that they were told by Nick Bikos at the time of the sale of the certificates that Ruben Schaeffer, Mason & Schaeffer, Inc., and Sagewood Apartments, Ltd., were sponsoring the sale of the certificates of indebtedness, and that they guaranteed them.

“An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means.” 12 Tex.Jur.2d Conspiracy, Sec. 14. A principal is bound by all acts of a general agent whenever the acts are within the ordinary and usual course of the business entrusted to the agent. However, the principal is not bound by the agent’s acts if they are done in excess of his authority. 2 Tex.Jur.2d Agency, Sec. 32. This includes both actual and apparent authority.

The Appellants present five points of error contending that fact issues exist as to both the conspiracy theory and the agency theory of the case, and that because of the issue of credibility of both Ruben Schaeffer and Nick Bikos a summary judgment was not proper in this case. The points are all closely related and argued together and will be considered together to determine if a fact issue exists.

The affidavit of Ruben Schaeffer and the deposition of Nick Bikos show without doubt that Nick Bikos acted alone in devising the fraudulent scheme and in carrying it out, and that he alone profited from its operation without any knowledge by the apartment house owners of his sinister scheme. The affidavit of Appellants does not show otherwise. We can only conclude that no conspiracy existed. Quarles v. Traders and General Insurance Co., 340 S.W.2d 545 (Tex.Civ.App.—Houston 1960, writ dism’d).

On the issue of agency, the affidavit and deposition show that Nick Bikos had no .actual authority to issue the certificates of indebtedness. Nevertheless, the issue as to the apparent authority must also be considered. We conclude that one employed to manage an apartment complex, with actual authority to collect and deposit rent, does not have any apparent authority to borrow money from the tenants and issue certificates of indebtedness in the name of the apartment complex. In Bolin v. Pacific Finance Corporation, 278 S.W.2d 879 (Tex.Civ.App.—Amarillo 19.54, no writ), the Court stated the controlling rules with regard to determining an agent’s authority as follows:

“ ‘ “When an apparent authority is claimed to arise from representations or conduct, the acts and statements of the principal,must be looked to for the requisite foundation and not those of the agent; the former alone can. give rise to authority of this character; the latter are never in themselves sufficient for that purpose. The principal must have affirmatively held the agent out as possessing sufficient authority to embrace the particular act in question, or else have voluntarily and in due awareness, actual or constructive, of the agent’s assumption of power permitted him to act as if he had the requisite authority. The powers which the agent pretends to have, or assumes to exercise, are inoperative as a basis for ostensible authority when the principal is not affected by knowledge of them and does not validate them by acquiescence or assent; and no mere combination of circumstances which may, without the principal’s participation, mislead third persons, however reasonably, into a false inference of authority affords a sufficient predicate for apparent authority * * *2 C.J.S., Agency, § 96, pages 1214, 1215; Ford Motor Co. v. Maddox Motor Co., Tex.Civ.App., 3 S.W.2d 911, affirmed by Supreme Court 23 S.W.2d 333; Great American Cas. Co. v. Eichelberger, Tex.Civ.App., 37 S.W.2d 1050; Continental Oil Co. v. Baxter, Tex.Civ.App., 59 S.W.2d 463.’ ”

Following that quote, the Court went further and said:

“One who deals with an agent of a corporation must exercise proper diligence to ascertain the authority with which the agent has been clothed and cannot rely on the acts and declarations of the agent alone. Reo Motor Car Co. of Texas v. Barnes, Tex.Civ.App., 9 S.W.2d 374.”

With regard to the specific authority of an agent to borrow money in the name of the principal, the rule is set forth in Guaranty Bank & Trust Co. v. Beaumont Cadillac Co., 218 S.W. 638 (Tex.Civ.App.—Beaumont 1920, writ dism’d), as follows:

“ ‘Power to borrow money is not to be inferred without clear evidence of such grant. Such authority must be expressly conferred or necessarily implied from the authority granted, and will not be inferred from a mere general authority, unless the character of the business or the duties of the agent are of such a nature that he is bound to borrow money * * * in order to carry out his instructions or the duties of his office.’ ”

It is pointed out in the comment under Restatement of Agency 2d, Sec. 73, that a manager has no power to borrow money in connection with the operation of the business or to issue negotiable instruments in the name of the principal, unless the business conducted is one involving the borrowing of money or the issuing of negotiable instruments such as banking and other financial business. Under the heading of “Authorization to Borrow,” Section 74 says:

“Unless otherwise agreed, an agent is not authorized to borrow unless such borrowing is usually incident to the performance of acts which he is authorized to perform for the principal.”

The comment under this section notes that the authority to borrow is not inferred unless it is practically indispensable to the continuance of the principal’s business or to prevent a very considerable loss to the principal and where it is impossible to communicate with the principal. There is no suggestion in the record in this case that the principals were in the business of borrowing money, nor is' there a suggestion that it was indispensable to the continuance of their business or to prevent a loss that made the borrowing by the manager necessary in this case.

In Mattice v. Equitable Life Assurance Society, 270 Wis. 504, 71 N.W.2d 262, 55 A.L.R.2d 1206 (1955), and Lamb v. General Associates, Inc., 60 Wash.2d 623, 374 P.2d 677 (1962), the Courts reviewed the rules with regard to the authority of an agent to borrow money in the name of the principal. In each case, the Court concluded that since the principal was not in the business of borrowing money, the agent had neither actual nor apparent authority to borrow in the name of the principal. We reach the same result in this ease.

The one remaining issue is whether in this summary judgment case there is a fact issue because of questions of credibility. We conclude that there is not. Although Ruben Schaeffer is an interested party, his affidavit is clear, direct and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965); Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). The general rule set forth in those eases was followed in Voudouris v. Walter E. Heller & Company, 560 S.W.2d 202 (Tex. Civ.App.—Houston [1st Dist.] 1977, no writ), where the Court held as a matter of law that one alleged to be a general partner had established by his own testimony, which was clear, direct and positive and without circumstances tending to discredit or impeach such testimony, that a general partnership did not exist and that there was no liability on his part for the debts of the partnership.

The deposition of Nick Bikos reflects that he is a longtime gambler, and that he admittedly lied to all of those to whom he sold these certificates. And, in his deposition, he did on one or two occasions take the Fifth Amendment with regard to identifying his signature on checks and certificates of indebtedness. Yet, all of his testimony is clear, direct, and positive, and there are no circumstances in the evidence tending to discredit or impeach such testimony that he acted alone in this fraudulent scheme which he conceived and operated without knowledge upon the part of the apartment owners. If others were involved, surely some proof could have been obtained to at least cast doubt on his testimony, particularly in view of the number of people and the amount of money involved in this particular operation. But there is none. Accepting Appellees’ affidavit as true and giving them the benefit of every reasonable inference which properly can be drawn in favor of their position, we conclude that there is no fact issue in dispute. We do so for the same reason given by Justice Pope in Rolfe v. Swearingen, 241 S.W.2d 236 (Tex.Civ. App.—San Antonio 1951, writ ref’d n. r. e.), where he said:

“ * * * Appellees’ showing was supported by sworn factual statements sufficient upon their face to establish a complete defense to everything appellants alleged. The verity of those sworn statements was in no way challenged by coun-teraffidavits or other sworn statements. In the hearing to locate the dispute about genuine and material facts, all facts stood undisputed, unchallenged, uncontrovert-ed. When such a condition exists, there are no facts to try. * * *”

The Appellants’ points of error are overruled. The judgment of the trial Court is affirmed.


author: CIRE, Justice. CIRE, Justice.

text:
    Dorothy Sue WEAVER, Appellant, v. The STANDARD FIRE INSURANCE COMPANY, Appellee.
    No. 1705.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 3, 1978.
    Rehearing Granted in part and Denied in part May 24, 1978 with opinion.

      Jack R. Martin, Malcolm Williams, Martin & Sperry, Houston, for appellant.
    Thomas P. Sartwelle, Gregory Neill Jones, Fulbright & Jaworski, Houston, for appellee.
   CIRE, Justice.

Dorothy Sue Weaver appeals from a take-nothing • judgment rendered in this workers’ compensation case.

The accident involved in this suit occurred on June 11, 1973 in the Greenway Plaza Complex. Appel’ant was employed by Continental Airlines at its office in the 2990 Richmond Building. On the day of the accident appellant was leaving work and walking to her car which was parked in one of the designated spaces in a parking area provided by the building to Continental Airlines as part of the lease agreement. She had almost reached her automobile when she slipped and fell.

After the Industrial Accident Board’s award, appellee filed its original petition challenging the award. Appellant then cross-acted. The case was tried to a jury, which found that appellant was not injured during the course of her employment. Pursuant to this jury answer, the trial court entered a take-nothing judgment in favor of appellee, Standard Fire Insurance Company.

Appellant asserts five points of error committed by the trial court. Her second point of error claims that the trial court erroneously refused to submit a complete definition of “injury in the course of employment” to the jury. The definition which was submitted to the jury stated:

“INJURY IN THE COURSE OF EMPLOYMENT” means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer’s premises or elsewhere.

The trial court refused the following requested instruction:

An act on the employer’s premises necessary to the health, comfort, and convenience of an employee while within working hours, during a lunch period, or while preparing to begin work or leave the premises, is not a departure from the course of employment.

This has been referred to as the “personal comfort doctrine.”

Appellee asserts, in support of the trial court’s refusal of such instruction, that the evidence did not raise the personal comfort doctrine, and, if appellant was entitled to any instruction, it was the one on the “access doctrine.” That doctrine was discussed in Kelty v. Travelers Insurance Company, 391 S.W.2d 558 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). The court there stated:

[Ejmployment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached.

391 S.W.2d at 563, quoting Bountiful Brick Co. v. Giles, 276 U.S. 154, 158, 48 S.Ct. 221, 222, 72 L.Ed. 507, 509 (1928). Accord, Texas Employers’ Ins. Ass’n v. Boecker, 53 S.W.2d 327 (Tex.Civ.App.—Dallas 1932, writ ref’d). We agree that the access doctrine would have been applicable here and might have even been more favorable to appellant. However, under the facts of this case, we believe an instruction on the personal comfort doctrine was also appropriate and, when requested, should have been given. See Travelers Insurance Company v. McAllister, 345 S.W.2d 355 (Tex.Civ.App.—Amarillo 1961, writ ref’d n. r. e.); Texas Employers Ins. Ass’n v. Davidson, 295 S.W.2d 482 (Tex.Civ.App. — Fort Worth 1956, writ ref’d n. r. e.); Traders & Gen. Ins. Co. v. Ihlenburg, 243 S.W.2d 250 (Tex. Civ.App. — San Antonio 1951, writ ref’d). Thus, appellant properly preserved her point of error when her counsel requested the additional instruction in writing and tendered it to the court. See Tex.R.Civ.P. 279.

Appellee argues that, as a matter of law, the parking lot was not a part of the premises leased to appellant, and, therefore, since the injury did not occur on the employer’s premises or as appellant “prepared to leave the premises” the personal comfort doctrine does not apply. We disagree. The parking spaces were specifically designated for Continental’s employees. Continental’s lease provided for these spaces, and, as such, those spaces were part of the consideration involved in the contract. The spaces were prominently marked with yellow paint and windshield stickers were issued to those entitled to park in such spaces. Any unauthorized automobile parked in these designated spaces was subject to being towed away.

Appellant had a right to park in the designated parking spaces and this right was derived solely from the employment relationship. She utilized the parking facilities while performing her duties of employment, and, while it is true that appellant could park in nondesignated parking spaces or along the sides of streets, her employer testified that the parking facilities were provided primarily for the convenience of the employees.

Since the parking spaces were provided Continental as part of the lease agreement, it is clear that: (1) it was a part of the employer’s premises; (2) Continental designated these spaces for employee parking as a convenience to its employees; and (3) the injury occurred while appellant was preparing to leave her employer’s premises. All of the required elements of the personal comfort doctrine were present and it was error for the court to refuse the instruction.

We have examined the additional points of error, but because our ruling on this one point is dispositive of the appeal, we express no opinion thereon.

The judgment is reversed and . the cause remanded.

ON MOTION FOR REHEARING

CIRE, Justice.

In its motion for rehearing the appellee has pointed out that the 2990 Richmond Building is not in the Greenv/ay Plaza Complex. Appellee is correct and the reference to the Greenway Plaza Complex is deleted from the opinion. The motion for rehearing is otherwise overruled.

Appellee’s motion for rehearing granted in part and overruled in part, and Opinion on Motion for Rehearing filed May 24, 1978.


text:
    Angel PEREZ et ux., Appellants, v. VOWELL CONSTRUCTION COMPANY, Appellee.
    No. 6664.
    Court of Civil Appeals of Texas, El Paso.
    May 3, 1978.
    Rehearing Denied May 31, 1978.
    El Paso Legal Assistance Society, Susan E. Perry, El Paso, for appellants.
    Arturo R. Aguirre, Gerald B. Shifrin, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

Appellants appeal that portion of the judgment disallowing their counterclaim for recovery under the Federal Truth-in-Lending law. We affirm the judgment of the trial Court.

Suit was filed by Appellee against Appellants to recover the unpaid balance of a paving assessment and to foreclose on a mechanic’s lien contract entered into between the parties. Appellants, as Defendants, alleged that the mechanic’s and mate-rialman’s lien contract was in violation of the Federal Truth-in-Lending Act, 15 U.S. C.A. Sec. 1601, et seq., and Federal Reserve Regulation Z, 12 C.F.R. Sec. 226. They pled that, as a result of these violations, they were entitled to recoupment and setoff for any judgment taken against them, plus reasonable attorney’s fees and costs of Court. The Appellants did not contest the fact that they owed the paving assessment and do not now contest the Court’s judgment against them for such assessment and attorney’s fees as provided therein; their appeal is limited solely to the failure of the Court to allow them to recover under the Truth-in-Lending Act.

Appellants misconstrue the judgment of the Court or the effect of it. The Court allowed only a personal judgment against the Appellants for the uncontested amount of the paving certificate, interest and attorney’s fees. The Court did not allow any recovery under the mechanic’s and materi-alman’s lien entered into by the parties, but specifically held: “ * * * the mechanic’s lien contract executed by the Defendants in favor of Plaintiff dated April 2, 1974, is invalid.”

The instrument having been declared invalid and no recovery being allowed on it, we fail to see how Appellants would be entitled to any recoupment or setoff because such instrument violated the Truth-in-Lending Act.

The judgment of the trial Court is affirmed.


author: PER CURIAM.

text:
    CITY OF SAN ANTONIO et al., Appellants, v. Robert E. RUDEWICK, Jr., et al., Appellees.
    No. 16057.
    Court of Civil Appeals of Texas, San Antonio.
    May 10, 1978.
    Rehearing Denied June 7, 1978.
    Bill M. White, Crim. Dist. Atty., John L. Quinlan, III, Asst. Crim. Dist. Atty., San Antonio, for appellants.
    S. Benton Davies, Jr., San Antonio, for appellees.
   PER CURIAM.

Appellants have filed a motion for extension of time to file the statement of facts in this case. The motion is denied and the appeal is dismissed.

The trial court rendered judgment on December 7, 1977. Appellants filed a motion for new trial on December 16, 1977, which was overruled by order dated February 14, 1978. However, in the absence of a written agreement extending the time for determination of the motion for new trial, the motion was overruled by operation of law on January 30, 1978, 45 days after it was filed. Tex.R.Civ.P. 329b.(3), (4) (1977).

The judgment recites that appellants gave notice of appeal in open court. Under the provisions' of Rule 353, Tex.R.Civ.P., prior to the amendment effective January 1, 1976, notice of appeal could be given “(1) in open court, noted on the docket or .embodied in the judgment, order overruling motion for new trial, or other minutes of the court, or (2) filed with the clerk; * * ” Tex.R.Civ.P.' 353(a) (1975). Subdivision (b) of the Rule prior to January 1,1976, provided: “Such notice, when filed [with] the clerk, shall be sufficient if it state[s] the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or from some designated portion thereof.” Tex.R.Civ.P. 353(b) (1967).

The amendment effective January 1, 1976, deleted subdivisions (a) and (b) from Rule 353, thereby eliminating all references to notice of appeal. Tex.R.Civ.P. 353 (1977). The purpose of the change was to eliminate the requirement of notice of appeal except in certain cases. The present version of Rule 353 deals only with the manner in which the scope of an appeal may be limited. The present provisions concerning limitation of notice of appeal are substantially the same as those formerly embodied in Rule 353(c) prior to January 1, 1976.

The provisions concerning notice of appeal, in those cases where such notice is still required after January 1,1976, are found in Rule 354(c). This subdivision of present Rule 354 is as follows:

(c) When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a notice of appeal which shall be filed with the clerk, within thirty days after rendition of judgment or order overruling motion for new trial (or after such motion is overruled by operation of law.) Such notice shall be sufficient if it states the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or some designated portion thereof. Copy of the notice shall be mailed by counsel for appellant in the same manner as the mailing of copies of the appeal bond.

The amendment of the rules relating to notice of appeal, in effect, transferred the provisions of old Rule 353(a)(2) and Rule 353(b) to what is now Rule 354(c). The only significant changes made in the provisions transferred to Rule 354(c) consist of enlarging the time for giving notice of appeal, when required, from ten to thirty days after rendition of judgment or order overruling a motion for new trial; the addition of language expressly specifying that the thirty-day period begins to run when a motion for new trial is overruled by operation of law and requiring that opposing counsel be given notice of the filing of notice of appeal with the clerk. The provision, formerly embodied in old Rule 353(a)(1), permitting the giving of notice of appeal in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minutes of the court, has been completely eliminated. Stated differently, the present rules provide only one method for giving notice of appeal, and that is by filing a written notice with the clerk of the court.

In promulgating the amendments effective January 1, 1976, the Supreme Court took care to preserve the provisions of old Rule 353 which it desired to retain. The provisions in old Rule 353 concerning limitation of the scope of an appeal were retained by embodying essentially the same language in, and making it the sole provision of, new Rule 353. Subdivision (b) of old Rule 353, specifying the contents of the notice of appeal when filed with the clerk, was retained by transferring it to new Rule 354(c). Subdivision (a)(2) of old Rule 353 was retained by embodying its provisions, concerning the filing of notice of appeal with the clerk, in new Rule 354. If the Supreme Court had intended to preserve the provisions of old Rule 353(a)(1), permitting additional ways of giving notice of appeal, it could easily have done so by incorporating it in new Rule 354(c), as was done with all other provisions of old Rule 353(a) and 353(b) which were retained by incorporation in the new rule.

Under the circumstances, the only reasonable conclusion is that since January 1, 1976, the notice of appeal, when required, must be in writing and filed with the clerk within thirty days after rendition of judgment or order overruling motion for new trial or after motion for new trial is overruled by operation of law. There is no longer authorization for an oral notice of appeal given in open court and embodied in the judgment or order overruling motion for new trial or other minutes of the court.

In the case before us, appellants are not required to give bond for costs on appeal. Therefore, Rule 354(c) requires written notice of appeal filed with the clerk. Since the motion for new trial was overruled by operation of law on January 30, 1978, appellants were required to file notice of appeal with the clerk no later than March 1, 1978. No such notice was filed with the clerk until March 2, 1978. Since notice of appeal was not given within the time specified, the appeal has not been perfected and this Court is without jurisdiction to consider the appeal.

In addition, the transcript in this case was not tendered to the clerk of this Court until April 14,1978. Under Rule 386, appellants were required to file the transcript and statement of facts no later than 60 days after the motion for new trial was overruled by operation of law on January 30, 1978. The tender of the transcript on April 14, 1978, was, therefore, 14 days late.

On the same date that the transcript was tendered, appellants filed a motion for extension of time within which to file the statement of facts, and five days thereafter appellants filed a “supplemental” motion for extension of time. Neither of these instruments request an extension of time within which to file the transcript, and neither motion contains any allegations “reasonably explaining the need for” an extension of time within which to file the transcript.

In Anzaldua v. Richardson, 279 S.W.2d 169 (Tex.Civ.App.—San Antonio 1955, writ ref’d n. r. e.), a majority of this Court held that where good cause was shown for failure to file the statement of facts, such showing was sufficient to support an extension of time for filing of the transcript. However, in that case, the motion expressly prayed for an extension of time within which to file both the transcript and statement of facts, and, in reaching its conclusion, the majority of this Court said:

We hold, therefore, that a timely motion which asserts as grounds for late filing, the fact that the statement of facts for good cause is not ready, is also sufficient reason for the late filing of the transcript, when both instruments are included within the motion, as in this case. 279 S.W.2d 170-71.

Richardson is not applicable here. In that opinion, the majority holding was expressly limited to the situation where both instruments are included within the motion. As already pointed out, in this case the motion for extension of time is limited to the statement of facts. Since appellants have failed to request an extension of time within which to file the transcript, there is no basis for granting such extension.

The appeal is dismissed.


text:
    Raymond ENRIQUEZ and Richard Aranda, doing business as Carpet Concept, Appellants, v. K & D DEVELOPMENT & CONSTRUCTION, INC., Appellee.
    No. 6730.
    Court of Civil Appeals of Texas, El Paso.
    May 10, 1978.
    Rehearing Denied May 31, 1978.

      Edwards, Belk, Hunter & Kerr, George W. Butterworth, El Paso, for appellants.
    Diamond, Rash, Leslie & Smith, Alan V. Rash, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case presents, for review the question of whether a defendant, prior to the August 1977 amendment to Article 2226, Tex.Rev. Civ.Stat.Ann., could defeat a recovery of attorney’s fees in a suit on a sworn account by tendering the amount due on the account into the registry of the Court. We hold it could not in this case.

The Appellants filed suit in April, 1977, on a sworn account for carpet sold to Ap-pellee in December, 1976. After answer was filed, Appellants filed a motion for summary judgment. The Appellee then filed an amended answer admitting the claim and tendering the full amount of the claim into the registry of the Court, after the Appellants had refused the tender made to them. The trial Court subsequently heard evidence as to a reasonable attorney’s fee. The final judgment was entered on August 29, 1977, ordering the Clerk to pay Appellants the sum of $5,408.23, which had been paid into the registry of the Court. The judgment denied recovery for attorney’s fees.

The trial Court filed findings of fact and conclusions of law. It found that the tender was made to Appellants and refused, and then tender was paid into the registry of the Court, but that the tender was made more than thirty days after written demand had been made on the Appellee for payment of the account. The Court found a reasonable attorney’s fee would be $1,500.00, but concluded that the tender of payment prevented the recovery of attorney’s fees in this case.

Appellants present three points of error, all similar in nature, complaining of the denial of attorney’s fees.

First, we note that the cause of action accrued and the hearing was held prior to the latest amendment of Article 2226, Tex. Rev.Civ.Stat.Ann., but the judgment was entered on the same day the amendment became effective. We will not give the latest amendment retroactive effect, but will decide the case under the Statute as it existed when the cause of action accrued. Government Personnel Mut. Life Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525 (1952).

Under that Statute, it was only necessary that the claim be presented and, if not paid within thirty days, an attorney’s fee is recoverable in any suit where the claimant recovers judgment for any amount of the claim. Huff v. Fidelity Union Life Insurance Company, 158 Tex. 433, 312 S.W.2d 493 (1958); El Paso Moulding and Manufacturing Co. v. Southwest Forest Industries, 492 S.W.2d 331 (Tex.Civ.App. — El Paso 1973, writ ref’d n. r. e.); Jackson v. Paulsel Lumber Company, 461 S.W.2d 161 (Tex.Civ. App.—Fort Worth 1970, writ ref’d n. r. e.). In this case, the Appellants sued for $5,408.23, and the judgment ordered that sum paid to them. The Statute only required that “he should finally obtain judgment for any amount thereof as presented for payment,” and, in this case, judgment was for the full amount of the account. There is no requirement in the Statute that “he have and recover a sum of and from the Defendant.” Johnson-Walker Moving & Storage, Inc. v. Lane Container Company, 548 S.W.2d 500 (Tex.Civ.App.—Eastland 1977, writ ref’d n. r. e.), is not applicable because, in that case, the plaintiff accepted the tender of payment and there was no recovery on the sworn account. T J Service Company v. Major Energy Company, 552 S.W.2d 598 (Tex.Civ.App. — Corpus Christi 1977, writ ref’d n. r. e.), can be distinguished because it was not properly a suit on a sworn account, and also because the trial Court entered a take nothing judgment.

We sustain Appellants’ three points of error, and the judgment of the trial Court is reversed and judgment rendered that Appellants have and recover the sum of $1,500.00 in attorney’s fees of and from the Appellee.

Having so concluded, we note that the rule as amended in August, 1977, now provides for recovery of attorney’s fees if at the expiration of thirty days after presentment, “payment for the just amount owing has not been tendered.” Thus, “finally obtain judgment” is no longer a requirement in the Statute.


author: ROBERTSON, Justice.

text:
    EAST DALLAS NEIGHBORHOOD ALLIANCE et al., Appellants, v. CITY OF DALLAS, Appellee.
    No. 19546.
    Court of Civil Appeals of Texas, Dallas.
    May 17, 1978.
    Rehearing Denied June 13, 1978.
    Jarilyn C. Dupont, Dallas Legal Services Foundation, Inc., Dallas, for appellants.
    Jerry T. Steed, Asst. City Atty., Dallas, for appellee.
   ROBERTSON, Justice.

The East Dallas Neighborhood Alliance, Juanita Adams and James Jones sued the City of Dallas, seeking to enjoin the city from continuing certain alleged land acquisition activities without first taking the procedural steps required under its relocation ordinance. After a non-jury trial on stipulations and testimony, the trial court denied relief, and the plaintiffs now appeal. We affirm.

The primary question on this appeal is whether the City of Dallas is involved in the type of land acquisition project contemplated by the city’s relocation ordinance. This ordinance is codified in chapter 39A of the Dallas City Code. Section 39A-4(a)(2) of that ordinance provides that the City of Dallas shall not proceed with land acquisition negotiations on any project which “will cause the relocation of any person” (emphasis added) until the city manager or his designee finds that:

Within a reasonable period of time prior to displacement, comparable replacement dwellings will be available or provided (built if necessary) for each displaced person. Such assurance shall be provided by an analysis of the relocation problems involved and a specific plan to resolve such problems as described in section 39A-4(i)(2).

As we read this ordinance, the crucial issue is whether the city is involved in a land acquisition project which will cause the relocation of persons presently living in the contemplated area. The city is not required to formulate a relocation plan unless the proposed land acquisition project will actually cause the displacement of persons.

Under the present scheme, as stated in the resolution of the city council, the city will cooperate with private developers in the redevelopment of problem neighborhoods within a two-mile radius of downtown Dallas. This cooperation involves the execution of contracts between the city and the developers whereby the city will purchase any land acquired by the developers if, in the developers’ opinion, insufficient land can be acquired to make private redevelopment profitable. However, this scheme does not become a municipal land acquisition project until the developers tender the property to the city. There is no evidence that persons will necessarily be relocated if the city ultimately purchases the property. While the resolution of the city council calls for “redevelopment” of certain areas, this does not necessarily include demolition and relocation of residents. Indeed, the neighborhoods might be redeveloped by restoring existing structures, thus providing safe housing without relocation of tenants. On the other hand, if the developers do not tender their acquisitions to the city in accordance with their contracts, any redevelopment they may undertake is not a “city project” within the relocation ordinance and, therefore, does not require the preparation of a relocation plan. Accordingly, since there is no indication in this record that persons will actually be relocated under the acquisition project by the city, we conclude that the trial court properly denied relief.

Affirmed.

      . The initial contracts between the city and the private developers called for the city to pay the developers “demolition costs” but this recitation is not, standing alone, sufficient to demonstrate that the contemplated demolition would necessarily result in the destruction of occupied residential structures. Moreover, the contracts did not require demolition, but merely allowed reimbursement for demolition costs if such action was taken.


author: SHANNON, Justice.

text:
    Gary L. NICKELSON, Appellant, v. The STATE of Texas et al., Appellees.
    No. 12717.
    Court of Civil Appeals of Texas, Austin.
    May 17, 1978.

      Tom L. Larimore, Walker, Bishop & Lari-more, Fort Worth, for appellant.
    John L. Hill, Atty. Gen., Gayle Johnson Cipriano, Asst. Atty. Gen., Austin, for ap-pellees.
   SHANNON, Justice.

The State of Texas sued William H. Lewis and appellant Gary L. Nickelson in the district court of Travis County for sums claimed to be owed as' contributions to the Unemployment Compensation Fund for the last two quarters of 1974 and the first quarter of 1975. Tex.Rev.Civ.Stat.Ann. art. 5221b--1, et seq. (1971). Upon trial to the court, judgment was entered for the State. We will reverse that judgment.

The State pleaded that Nickelson and Lewis were partners in a dry cleaning business in Fort Worth, known as University Cleaners. Nickelson specially denied that he and Lewis were ever partners in the business. Lewis filed an answer but did not appear at trial. Nickelson, to the contrary, appeared and contested the State’s case.

The question before the court was whether Nickelson was a partner in the cleaning business during the period of time in question. If Nickelson were a partner, he was liable for unemployment taxes. The district court entered judgment against Lewis and Nickelson, jointly and severally, for $695.46. By entry of the judgment, the court necessarily concluded that Nickelson was a partner in the cleaning business.

Nickelson claims there was no evidence to support the determination that he was a partner in the business. The State’s only evidence was a document entitled “Joint Application for Total Transfer of Compensation Experience.” That document is copied below:

As the State pleaded partnership, it had the burden of producing evidence that University Cleaners was operated as a partnership by Nickelson and Lewis. Holman v. Dow, 467 S.W.2d 547 (Tex.Civ.App.1971, writ ref’d n.r.e.). The State could discharge its burden by proving that Nick-elson and Lewis operated a common enterprise for their joint benefit. Jenkins v. Brodnax White Truck Co., 437 S.W.2d 922 (Tex.Civ.App.1969, no writ).

The terms of the “Joint Application” show that Lewis relinquished all control over University Cleaners on August 1, 1974. The document does not prove that Lewis was a partner with Nickelson before August 1,1974, nor does it show Nickelson was a partner with anyone after August 1,1974. By definition Nickelson could not be a partner with himself. Tex.Rev.Civ.Stat.Ann. art. 6132b § 6(1).

Nickelson introduced an assumed name certificate that Lewis filed in the Tarrant County clerk’s office on August 1, 1974. The certificate states that Lewis is the owner of University Cleaners. The certificate is some evidence that Lewis owned the business on August 1,1974. The certificate of course contradicts the terms of the “Joint Application.” Nevertheless, neither instrument is proof that Nickelson was in partnership with Lewis after August 1, 1974.

The judgment is reversed and judgment is here rendered that the State take nothing.


text:
    In the Matter of M. T. B., Appellant.
    No. 6688.
    Court of Civil Appeals of Texas, El Paso.
    May 17, 1978.
    Kerr, Fitz-Gerald & Kerr, Ted M. Kerr, Midland, for appellant.
    Leslie C. Acker, County Atty., L. Jean Wallace, Asst. County Atty., Midland, for appellee.
   OPINION

OSBORN, Justice.

This appeal is from a judgment of the Juvenile Court in Midland County which declared that M.T.B. had engaged in delinquent conduct within the meaning of Sec. 51.03 of the Texas Family Code, and placed him on probation. We reverse and remand.

The petition alleged that M.T.B., a minor, destroyed two tires on a car owned by Mrs. L. W. Hough, and two tires on a car owned by Dr. Joe T. Smith. The cars were parked on a parking lot at Lee High School in Midland, where Dr. Smith was principal, Mrs. Hough was a teacher, and M.T.B. was a student. The tires were apparently punctured in the sidewalls.

Mrs. Hough did not testify and the County Attorney acknowledges that there is not sufficient proof in the record to support findings of the alleged offense involving the tires on her car.

Dr. Smith did testify. He said that when he inspected his car after the offense was reported, he found that he had two flat tires. He described the tires as being “those Michelin, five [sic] thousand miles, steel-belted radials.” He said they had about 19,000 or 20,000 miles on them and had been driven for approximately two years. He testified that the tires cost $135.00 each when he bought them, and the two replacement tires cost a total of $183.07. There is no proof in the record of the fair market value of the two tires in question which were alleged to have been destroyed.

The minor was charged with an offense constituting criminal mischief under Sec. 28.03, Tex.Penal Code Ann. The rule for determining the amount of the pecuniary loss and thus the seriousness of the offense is set forth in Sec. 28.06, Tex.Penal Code Ann. It provides in paragraph (a) that if the property is destroyed, the amount of the loss is:

“(1) the fair market value of the property at the time and place of the destruction; or
“(2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the destruction.”

In connection with the proof actually made, the Appellee’s brief says: “It is true that the State offered no proof of the fair market value of the destroyed tires. This was for the very good reason that the State is unaware that any such fair market value exists for tires that have been destroyed by puncturing the sidewall. Therefore the evidence offered for the amount of pecuniary loss came under part two of Section 28.06, Texas Penal Code which reads: ‘ . if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the destruction. . . . ’ is the amount of such loss.”

This contention misses the point. The issue is what was the fair market value of the property prior to the destruction. Not only is there no proof of fair market value, there is also no proof that fair market value could not be ascertained. Surely, some proof could have been presented to comply with the requirements of Sec. 28.06(a)(1) from the party who sold the replacement tires to Dr. Smith or some other tire salesman in the County. But if not, no attempt was made to show that fair market value could not be ascertained, and Sec. 28.-06(a)(2) was not applicable. We conclude that there is no evidence to support the findings of commission of the offense charged and sustain Appellant’s Point of Error No. 1. Wise v. State, 494 S.W.2d 921 (Tex.Civ.App. — Fort Worth 1973, no writ).

The State argues there was a commission of a lesser included offense of “damage” to property under See. 28.03, Tex.Penal Code Ann. We need not pass on this issue because there is no proof under Sec. 28.06(b) concerning damaged property to show “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.”

The judgment of the trial Court is reversed and the case is remanded to the trial Court.


text:
    William Conrad DRESSLER, Appellant, v. Maxie Dean ALDRIDGE et ux., Appellees.
    No. 6707.
    Court of Civil Appeals of Texas, El Paso.
    May 17, 1978.
    Rehearing Denied June 21, 1978.
    Maebius & Duncan, Inc., John K. Shar-ber, San Antonio, for appellant.
    Joe K. McGill, Seminole, for appellees.
   OPINION

OSBORN, Justice.

This is an appeal from an order of the District Court of Gaines County terminating the parental rights of a natural father to his two minor sons, who are now twelve and eight years old, and permitting a stepfather to adopt both boys. We affirm.

The Appellant, William C. Dressier, was married to Mary Staker on October 24, 1964. Two boys, Grant and Jeffrey, were born to that marriage. These parents obtained a divorce in West Virginia in January, 1970. The decree gave Mary custody of the boys, but provided that William could have custody of Grant during the summer months when the boy was not in school, and make like provision for Jeffrey when he became six years of age. At that time, William was a medical student and the decree further provided that after he graduated from school in May, 1971, and began receiving a salary as an intern he was to pay $75.00 per month per child as support and maintenance for the children.

In 1970, William had custody of Grant for the summer without any major problems. All of the testimony was that the boy enjoyed his relationship with his father. The same thing occurred during the summer of . 1971. In May, 1971, Mary married Maxie Aldridge. William paid child support payments as provided for in the divorce decree without any problems arising until the spring of 1972. At that time, he was told by Mary that he could not have Grant that summer. William quit making support payments and filed a contempt proceeding in West Virginia. That Court dismissed the matter for want of jurisdiction because the mother was no longer living in the State. At that time, Mary and her husband lived in Arizona where he was serving in the military. They subsequently moved to Lamesa in February, 1972, to Grand Prairie in August, 1972, and to Seminole in early 1975. William testified that during this period he had difficulty locating the whereabouts of his sons, and when he tried to call, was eventually told he could not talk to Grant anymore. He finally learned that his sons were in West Texas and he flew out and saw the boys briefly in October, 1976. He did not see them again until this hearing in March, 1977.

At this hearing, Mary, her husband, her mother, and her father-in-law and mother-in-law all testified in favor of the termination suit and adoption proceedings. William, his present wife, his sister, and his father all testified in opposition.

It appears that Mary is now happily married, her husband is a farmer at Seminole, and they have a child of their own born in 1976. The two boys appear to have a good relationship with their stepfather and are using his name. William has also remarried, is now a medical doctor in the Air Force, and he and his wife have two young children. He and his family still love Grant and Jeffrey and he desires to continue their parent-child relationship.

There is no dispute but that Dr. Dressier did not support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition for termination of parental rights, and the trial Court so found. See Sec. 15.02(1)(F), Tex.Family Code Ann.

Mrs. Aldridge testified that she made no complaints when the support payments stopped; she did not want the support money then and does not want it now. Mr. Aldridge said if the support money had been sent, it would have been used for the benefit of the boys and that there had been times when they could have used some additional support. Dr. Dressier now makes $20,000.00 a year as an Air Force Major, and he is willing to pay support, but also wants to be able to exercise his summer custody rights. He readily recognizes his default under the divorce decree, but attempts to excuse it on the basis that his ex-wife first breached the Court order and says that he was current in his payments when she decided on a rule of “self help” in violation of the divorce decree. This brings us to the requirement that “termination is in the best interest of the child.” Sec. 15.02(2), Tex.Family Code Ann. The Statute and cases make it clear that the proof must establish one of the acts or omissions under Sec. 15.02(1), and also that termination must be in the best interest of the child under Sec. 15.02(2). Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976); Holley v. Adams, 544 S.W.2d 367 (Tex.1976); Schiesser v. State, 544 S.W.2d 373 (Tex.1976); Whiteside v. Dresser, 543 S.W.2d 158 (Tex.Civ. App.—Waco 1976, writ ref’d n. r. e.). Under the holding in the Holley case, the excuse for failure to support must be considered under the issue of the best interest of the child. The Court, in that opinion, also listed some eight other factors, among others, to be considered in deciding the best interest issue. We now consider those issues.

(A) Desires of the Child

Although the Court appointed a guardian ad litem to represent the children, the guardian made no attempt to establish the desires of either boy, and neither was called as a witness.

(B) Emotional and Physical Needs

There was testimony from three witnesses that Grant was very happy during the two summers he spent with his father, and that he cried when he had to leave and return to his mother. His mother testified that Grant was very happy to get home. She said he came home looking pale, anemic and with dark circles under his eyes. She testified “I think it would be too much emotionally for them to spend time too far away from home with someone who is a total stranger to them.” The boys apparently had no emotional problems as a result of their father’s visit in October, 1976. It appears that Mr. Aldridge is able to provide for the boys’ physical needs in the future, and the trial Court, in its order,- provided that the children’s right to inherit from their natural father was terminated. See Sec. 15.07, Tex.Family Code Ann. But who can say with certainty that sometime in the future support might not be needed from the natural father, as it has in the past. We have no doubt that having the boys leave a stable home to visit a person they seldom see can cause some emotional problems. But will not similar problems develop as the boys grow older and begin to wonder about their father and paternal grandparents and their station in life?

(C)Emotional and Physical Danger

We believe the record reflects a concern for these boys by all parties, including the natural parents, the stepfather and all grandparents. No physical danger or great emotional danger appears from the record we have reviewed.

(D)Parental Ability

We believe those seeking custody, both Mr. and Mrs. Aldridge, are qualified and able to raise these boys and there is nothing in the record to show otherwise.

(E)Programs to Promote Child’s Best Interest

The record is silent on this issue other than showing that the boys are enrolled in school. The record is void of evidence on their school performance. It does not reflect whether they attend church or not, or whether they belong to the Boy Scouts or other similar organizations.

(F) Plans for the Children

Nothing is shown by the record other than usual activities of boys attending school.

(G) Stability of the Home

The social report prepared by the County Sheriff reflects a stable home where both boys are happy and well adjusted. The stepfather is engaged in farming and has an annual income of approximately $30,-000.00 per year. The report concludes that this is a “close-knit family,” and that Mr. and Mrs. Aldridge are good parents. The report recommends the adoption be granted.

(H)Parents’ Acts or Omissions Adversely Affecting Parent-Child Relationship

The record does not indicate any conduct which would adversely affect the existing parent-child relationship. Certainly, Dr. Dressier is not shown to be an unfit parent.

(I)Excuse for Acts or Omissions of a Parent

As noted earlier, Dr. Dressier would excuse his failure to pay support on the conduct of his ex-wife in denying him custody of his son as provided for in the divorce decree. Certainly, this is not a valid legal excuse, but may be described as an often used excuse, with some reasonable basis.

As we noted in Brokenleg v. Butts, 559 S.W.2d 853 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.), some of these issues are as much concerned with questions of custody as they are with the issue of termination of the parent-child relationship. In doing so, we made note’of the holding in Wiley v. Spratlan, supra, that there is a substantial difference between suits for conservator-ship, possession and support of children, and those to terminate a parent-child relationship, and the difference justifies the caution with which Courts have characteristically considered termination cases. In the 1977 “Advanced Family Law Course,” Donald R. Royall discusses the Wiley, Holley and Schiesser cases and says “The Supreme Court, apparently sensing the constitutional dimension of the parent-child relationship, reversed each of these cases, relying upon a strict and literal construction of the statute in each case in favor of the parent, and the lower courts are catching on.” Advanced Family Law Course, 1977, p. C-19. We reached a similar result in Brokenleg, supra.

There can be no contention and there is no evidence- that Dr. Dressler’s acts or conduct adversely affected Jeffrey, because he has never had custody or visitation rights with him by reason of the divorce decree and his mother’s conduct. While there is authority for termination of parental rights as to some children in a family and not others, this is not a case where the result should be different for different children. See Moreland v. State, 531 S.W.2d 229 (Tex. Civ.App. — Houston [1st Dist.] 1975, no writ). We believe that under the facts in this case the same result should be reached as to both boys.

One valid reason for termination of parental rights in this case, that did not exist in Wiley, Holley, Sehiesser or Brokenleg, is the application for adoption by a stepparent. This Court was unwilling to conclude that it was in the best interest of the child to terminate all parental rights of the mother in Brokenleg, where the father had voluntarily relinquished his rights and when no one sought to adopt the child and assume parental obligations. In this case, the stepfather seeks both the privileges and responsibilities of being a parent for two young boys. In what is admittedly a close case, we believe that this makes the difference in determining what is the best interest of the children. This, along with factors (D) and (G) above, cause us to affirm the decision of the trial Judge who saw the parties and heard the evidence.

The Appellant’s three points of error, asserting that there is no evidence and insufficient evidence to support the trial Court’s order of termination and adoption and that such findings are against the great weight and preponderance of the evidence, are all overruled. The judgment of the trial Court is affirmed.