text:
    Lewis Franklin DAVIS, Jr., Appellant, v. Mary Ann DUKE, Appellee.
    No. 12448.
    Court of Civil Appeals of Texas, Austin.
    May 26, 1976.

      James Larry Parks, Haralson & Parks, Austin, for appellant.
    F. Newton Millen, Frank J. Foerster, Legal Aid and Defender Society, Austin, for appellee.
   O’QUINN, Justice.

This case involves the custody of two children, to be determined under recently amended section 14.08(c) of the Texas Family Code. This proceeding is the most recent of a series of suits for custody between Mary Ann Duke, appellee, and Lewis Franklin Davis, Jr., appellant, the natural parents of the two minor children.

Under the judgment by which the parties were divorced, in January of 1973, custody was awarded to the father, Lewis Franklin Davis, Jr. Subsequently, the mother brought suit in August of 1974, seeking to be named managing conservator of the children. On October 9,1974, the court entered a default judgment in that suit giving the mother custody of the children.

The mother was unable to effect actual custody at that time, however, because the father had left the State of Texas with the children two days after being served with citation. The mother later found the children living with their father in California and brought suit in California to enforce the Texas default judgment. The California courts accorded full faith and credit to the Texas judgment and caused the children to be delivered to the mother on August 5, 1975.

Prior to entry of the California decree the father filed an equitable bill of review in Texas on July 25, 1975, to set aside the earlier Texas default judgment. The trial court later consolidated that suit with the father’s motion to modify an order affecting the parent-child relationship filed by him on October 11, 1975. Trial was before the court sitting without a jury. Lewis Franklin Davis, Jr., brings this appeal from judgment of the court denying both the motion to modify and the bill of review.

Appellant raised no points of error as to the bill of review. That part of the judgment has been waived by appellant and will not be considered.

Appellant’s motion to modify the parent-child relationship was based upon section 14.08(c) of the Texas Family Code (as amended by Acts 1975, 64th Leg., p. 1265, ch. 476, sec. 29, eff. Sept. 1, 1975). Appellant alleged below that a material change of conditions had occurred which endangered the physical and emotional well-being of the children. He also pleaded that the best interests of the children would be served by appointment of him as managing conservator.

The trial court filed findings of fact and conclusions of law upon request of appellee, Mary Ann Duke. The trial court concluded that appellant failed to prove by a preponderance of the evidence the elements necessary to effect a change of custody under section 14.08(c) of the Family Code.

Appellant brings three points of error. We will overrule all points of error and affirm judgment of the trial court.

Under the first two points of error appellant urges that the trial court’s finding that circumstances of the children or parent have not materially or substantially changed is against the great weight and preponderance of the evidence. Further, appellant says that the court erred in not finding that the best interests of the children would be served by granting appellant’s motion to name him managing conservator.

The test under section 14.08(c) is two-fold. First, the parent moving to obtain custody has the burden to prove that since rendition of the last final judgment in the case between the same parties changes have occurred in the circumstances of the child or parent so material and substantial that retention of the current managing conservator would be injurious to the welfare of the child. Second, the movant must establish that the appointment of the new managing conservator would be a positive improvement for the child. Both parts of this test must be proved by a preponderance of the evidence. In Re Y, 516 S.W.2d 199 (Tex.Civ.App. Corpus Christi 1974, writ ref. n. r. e.); Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App. Dallas 1974, writ ref. n. r. e.).

Appellant insists that the trial court erred in not finding a material change in existing circumstances surrounding the conduct of the mother which would be injurious to the welfare of the children. Appellant contends that one such material change is that the mother has smoked marijuana in the presence of the children on several occasions. The mother admitted that she had, upon occasion, smoked marijuana, but that such usage was minimal and that she disapproved of such use for the children. The record also reflects that the appellant father had smoked marijuana during the time he and appellee were married.

Appellant failed to discharge the burden of showing a material and substantial change in conditions since the previous court decree of conservatorship. Appellant has sought to show the present conditions only of the custodial parent. This showing alone is insufficient to justify a change of custody under section 14.08(c). To prove that a material change of circumstances has occurred the movant must demonstrate what conditions existed at the time of the entry of the custody decree. Once such conditions have been established, movant must show what material changes have occurred subsequently in those conditions. Appellant failed to show what, if any, changes had occurred since the conservator-ship decree entered in October of 1974.

The trial court’s judgment states that “. . . [appellant] failed to prove by a preponderance of the evidence that the statutory basis for modification existed at the time of the hearing.”

The trial court found that appellant failed to meet the burden of proof required under section 14.08(c). The judgment will not be disturbed on appeal unless a clear abuse of discretion is shown. Adams v. Adams, 519 S.W.2d 502 (Tex.Civ.App. El Paso 1975, no writ); Renfro v. Renfro, 497 S.W.2d 807 (Tex.Civ.App. Waco 1973, no writ). The trial court was in a better position to pass upon this question because of the opportunity to observe the parties and note their demeanor and personalities. Stuart v. Stuart (Docket No. 12,421, this Court, filed April 14, 1976). It is clear from the record that the trial judge was aware of the extended litigation involving custodial rights over these children. The court’s decision no doubt reflected the best interests of the children. We have reviewed the record and conclude that the trial court did not abuse its discretion.

Appellant urges, as another material change in circumstances, the fact that the mother was diagnosed as having a “borderline personality.” This conclusion was reached by a psychiatrist, who testified that he had visited with the mother on two separate occasions for a total of 140 minutes. He defined “borderline personality” as a “pre-ill” type of personality. He also stated that appellee is neither “currently psychotic” nor likely to become so. In the doctor’s opinion, appellee is not mentally ill but “needs treatment.”

The trial court found that neither parent is mentally ill and that appellee’s character does not pose a probability of injury to the children. This finding is supported by the great weight and preponderance of the evidence. Appellant’s first and second points of error are overruled.

Under the third and last point of error appellant contends that the trial court erred in finding that the California judgment was entitled to full faith and credit. Appellant argues that the judgment is not entitled to consideration because it was not received into evidence at the hearing. We overrule the point. The record clearly shows that the court did receive the judgment into evidence and it was considered in the rendition of judgment below. The courts of Texas will give full faith and credit to a child custody decree of a sister state and will not order a change of custody in the absence of proof of a subsequent material change of conditions. Knowles v. Grimes, 437 S.W.2d 816 (Tex.1969). See also Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966).

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Irma Z. RODRIGUEZ, Appellee.
    No. 15511.
    Court of Civil Appeals of Texas, San Antonio.
    May 26, 1976.

      Loyd E. Bingham, Jr., House, Mercer, House, Brock & Wilson, San Antonio, for appellant.
    Jerald L. Abrams, Knickerbocker, Abrams & Acklen, Eagle Pass, for appellee.
   BARROW, Chief Justice.

Appellant has perfected its appeal from a judgment on a jury verdict that appellee was totally and permanently incapacitated under the Texas Workmen’s Compensation Act as the result of an injury sustained in the course of her employment.

Appellant urges by eight points of error that the evidence is legally or factually insufficient to support the jury findings that the injury was a producing cause of total incapacity; such incapacity was permanent; or that such incapacity was not solely caused by a female condition wholly independent of such injury. Appellant’s ninth point complains of the actions of ap-pellee’s attorneys in reading from the oral depositions with prejudicial voice inflections. The parties will be hereinafter referred to as plaintiff and defendant.

It is fundamental that in considering the “no evidence” points we must consider only the evidence and inferences favorable to the jury findings and disregard all evidence and inferences to the contrary, but all evidence is considered in passing upon the “factually insufficient” points. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

It is uncontradicted that plaintiff sustained an injury on February 26, 1974, while lifting a bundle of hangers in the course of her employment as a pants presser for Williamson-Dickie Manufacturing Co. in Eagle Pass. She continued on the job, although suffering pain, and did not consult a doctor until about March 13, 1974. She went to Dr. DeHoyos after the pain in her back became unbearable. He advised her to wear a support, which she is still wearing, and to take pain pills. She returned to work after about a week, but was unable to continue on the job. She was then sent by her foreman to Dr. Gonzalez Rios, an orthopedic specialist in Piedras Negras, Mexico. Dr. Rios gave her heat treatments and performed manipulation under anesthetic. Dr. Rios believed her condition to be caused by female problems and sent her to Dr. Rodolfo Cruz, a doctor specializing in problems of the female reproductive organs. Dr. Cruz performed a dilation and currettage on April 4, 1974. She continued to complain of back pain, and on May 14, 1974, Dr. Rios performed a myelo-gram on her back. This test showed no abnormal findings and he urged her to return to work. She returned to work in July, but had to quit again in August and was off work until November 9, 1974. She returned to her job at that time and continuously performed her regular duties until the trial on March 6, 1975.

It is settled law that the fact an employee continues to work after she is injured is not controlling on the question of total and permanent incapacity, but this is one fact to be considered by the trier of the facts along with other facts and circumstances introduced in evidence. Texas Employers Insurance Association v. Thomas, 517 S.W.2d 832 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.); Home Insurance Company v. Smith, 482 S.W.2d 395 (Tex.Civ.App.—Waco 1972, no writ). Numerous cases support this rule although it must be recognized that the evidence in most of these cases shows a change in duties or in the manner of performance of the employee’s work because of the disability.

Here the plaintiff returned to her regular job of pressing pants and continued to perform, with no loss of time, all her work in a very efficient manner. The employees earn a higher hourly rate when they make an assigned quota and plaintiff consistently made her quota after she returned to work. She testified that it was necessary that she work to earn money in that her husband’s salary was not adequate to discharge their numerous debts. She also testified, and was corroborated by members of her family and a co-worker, that she performed her work under stress of pain and paid the price by sharply reducing all her duties around the house and cutting out all social activities.

Three doctors testified by deposition at the trial. In addition to the treatment by Dr. Rios, Dr. DeHoyos, and Dr. Cruz, plaintiff was examined on June 21, 1974, by Dr. Gregorio Canales, an orthopedic specialist in San Antonio, and also by Dr. Coyle Williams. Dr. Canales testified that plaintiff was complaining of low back pain which radiated to her lower abdomen and thighs. He found no objective symptoms of a neu-romuscular injury and recommended that she see a doctor specializing in female problems. He believed she was sincere in her complaints and recommended that she not return to work until “complete medical evidence rules out any serious abnormalities in her low abdomen, pelvis, [and] low back.” She did have an area of tenderness in her back on palpation. Dr. Canales said that plaintiff had aggravated an osteo-arthritic condition which would disable her about six weeks.

Dr. Rios testified that he could find no objective findings to substantiate plaintiff’s complaints of low back pain on either his examination of May 14, 1974, or his final examination on October 15,1974. This conclusion was largely based on the negative results of his myelogram examination of her. Dr. Rios believed plaintiff was truthful in her complaints and he thought she was suffering from a gynecological disorder.

Dr. Cruz testified that her female trouble was the result of an incomplete abortion which was caused by the accidental injury. He performed the dilation and currettage on her on April 4th. He last saw her on April 5th, and at that time her prognosis was excellent insofar as the condition caused by her female trouble was concerned.

It has been determined that a jury verdict of total and permanent disability may be based solely on lay testimony, even where contradicted by expert medical witnesses, and a jury may infer total and permanent disability from circumstantial evidence. Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App.—Dallas 1965, writ ref’d).

Here it is uncontradicted that plaintiff had no problems in her low back until she sustained the accidental injury in February 1974. All witnesses verify that she has continuously suffered since that time. The disagreement is over the cause of her difficulty. In our opinion, this disagreement is immaterial in view of the testimony of Dr. Cruz that the incomplete abortion was caused by the accidental injury. This testimony supports the jury finding that her disability is not solely caused by any pre-existing condition. Although she had worked continuously for about six months prior to the trial, there is evidence she did so under the stress of economic necessity. She performed her work with the aid of a back support and by use of pills to reduce the pain.

We conclude from an examination of the entire record before us that the evidence is factually sufficient to support the jury verdict. We therefore overrule defendant’s first eight assignments of error.

Defendant’s ninth point complains of the cumulative effect of the repeated actions of plaintiff’s attorney in attempting to influence and prejudice the jury by the manner said attorney read from the oral depositions of the three doctors. The record reflects that on two occasions the defendant’s attorney objected to the manner of reading of depositions. Both objections were promptly sustained by the trial court. No instruction to disregard was requested by defendant on either occasion, but it now argues that the error could not be cured by an instruction. We disagree.

Although the record does not show any inflections or gestures, the two incidents where objections were made do not appear to have been of any consequence. Obviously, gestures and voice inflections have no place in the use of depositions, and should be prohibited by the trial judge. We suggest that the reading of depositions is more meaningful where one person reads the questions and another reads the answers. This also eliminates the need for voice inflections to distinguish the question from the answer. We conclude that reversible error is not shown by this point and it is overruled.

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Mary Sandoval STEPHENSON, Appellant, v. C. D. CHRISMAN, Appellee.
    No. 15536.
    Court of Civil Appeals of Texas, San Antonio.
    May 26, 1976.
    John C. Mullen, Alice, for appellant.
    Patrick G. Rehmet, Grose & Erck, Alice, for appellee.
   KLINGEMAN, Justice.

This is a case involving the validity of an option to renew in a lease contract. Appellant, Mary Sandoval Stephenson, appeals from a judgment decreeing that the lease agreement entered into between appellant as lessor and appellee, C. D. Chrisman, as lessee, contains a renewal provision that is valid and enforceable, and that appellee exercised the option granted therein to renew for an additional five years in the manner and time required by the lease, and declaring the lease renewed and extended for an additional five-year term subject to payment to appellant of the sum of $3.50 per acre per year.

By two points of error appellant asserts that the trial court erred (1) in ruling that the provision in the lease purporting to give the lessee an option to renew was valid and enforceable; (2) in purporting to set the amount of the renewal rental.

The option to renew provision reads as follows:

The term of this lease shall be for five (5) years, beginning the 1st day of June, 1970 and ending the 31st day of May, 1975, and with Lessees to have the option to re-lease for an additional five-year term upon such money rents as may be agreed upon by the parties but not more than the sums for which same could be leased to a bona fide lessee.

The trial court made extensive findings of fact and conclusions of law which we do not deem necessary to set forth in full herein.

The tract here involved contains 132.3 acres, with the agreed rental being $132.30 per year. There is testimony that the leased premises contain approximately 65 acres in brush, and the rest in permanent grass planted by appellee. There is also testimony as to other improvements made by appellee on the leased premises during the initial five-year term of the lease. There is testimony by two ranchers as to a reasonable rental value of the premises, with one rancher testifying that, based upon his experience, he believes the average going rental price for such lease would bé $2.50 per acre and another rancher testifying that a reasonable rental value for the lease in question would be about $1.50 per acre for the brush and about $4.00 to $5.00 for the coastal grass.

In support of her contention that the option to renew is void and unenforceable, appellant relies in chief on two cases: Schlusselberg v. Rubin, 465 S.W.2d 226 (Tex.Civ.App.—El Paso 1971, writ ref'd n. r. e.); Piekrell v. Buckler, 293 S.W. 667 (Tex.Civ.App.—El Paso), writ ref'd, 116 Tex. 567, 296 S.W. 1062 (1927), which she asserts are the only two Texas cases touching directly on the matter here involved.

The renewal provision in Schlusselberg reads as follows:

It is hereby agreed Lessee is given first refusal to renew this lease at a price to be agreed upon or to meet any bona-fide offer. Said option to be given Lessor’s Agent in writing six (6) months prior to the expiration of this lease.

The court stated:

It is our opinion that this provision is unenforceable in that it is not definite and certain, but rather leaves something to be agreed upon at a later date. It is an agreement to make an agreement in the future — ‘a price to be agreed upon’.

The option to renew involved in Piekrell reads as follows:

At the expiration of the 7 years’ lease, the parties of the second part are to have the option for a new 5-year lease on either the ground floor and basement or the entire building, as the parties of the second part may elect, at the price the party of the first part is willing to rent to any one else. If the parties of the second part desire such new lease, they must give notice of such desire in writing, at least 6 months before the expiration of said 7 years.

The Court of Civil Appeals in discussing said option provision stated:

A covenant to renew which fails to fix the rental for the renewal term is void for uncertainty unless the contract, expressly or by reasonable implication, provides a method whereby the rent may be fixed, thereby making certain that which was uncertain. * * * While the question is not free from doubt, we conclude the covenant to renew was void for uncertainty.

However, it is clear from a reading of the entire opinion in Pickrell that the lease involved had been previously renewed for an additional term of five years under the option to renew provision contained in the lease, with the court holding that a covenant to renew a lease at the expiration of the term is satisfied by one renewal.

The Supreme Court, in a per curiam opinion, in Pickrell v. Buckler, supra, stated:

We are not inclined to the view that the covenant to renew in the original lease was void for uncertainty.
We conclude, however, that under the writings executed by the parties the plaintiffs in error had no right or option to renew the lease more than the one time.
The Court of Civil Appeals having therefore entered the correct judgment, the writ of error will be refused, regardless of our failure to concur in all that is said in the opinion.

In other jurisdiction there is a division of authority as to the validity of a provision for renewal or extension of a lease which fixes all the terms for the renewal or extension, but which leaves the rent to be fixed by future agreement by the parties. There are a number of jurisdictions which support the view that a provision in a lease for renewal or extension of the lease at a rental to be fixed by the parties in the future is invalid and unenforceable, at least where the provision does not specify any guidelines or methods for the fixing of rent. There are also a number of jurisdictions supporting the view that a provision in a lease for the renewal and extension of the lease at a rental to be fixed by subsequent agreement of the parties is valid and enforceable. There are also a number of cases supporting the view that a provision in a lease for the renewal of the lease at a rental to be fixed by subsequent agreement of the parties is valid where the provision specifies some guidelines or methods for the fixing of the rent. See 58 A.L.R.3d, 500, Renewal Of Lease — Rental To Be Agreed Upon.

The problem here involved is that irrespective of which view we accept, this case must be reversed. It is clear that appellant and appellee could not agree on a renewal rental. Appellee must and does, therefore, rely on the other provision of the option to renew, “but not more than the sums for which same could be leased to a bona fide lessee.” The only proof adduced as to a renewal rental was what the reasonable rental would be. There is absolutely no evidence as to the sum for which said premises could be leased to a bona fide lessee. Moreover, the court found that a reasonable rental would be $3.50 per acre per year, with no finding as to what the premises could be leased to a bona fide lessee. While the evidence might justify a finding that $3.50 per acre was a reasonable rental, such finding does not conform to the option provision.

The judgment is reversed and remanded for a new trial.

      . Some of the findings of fact relate to a contention made by appellee that, in consideration for the option to renew the lease, he agreed to make substantial improvements to the leased premises, with the court finding that he made such improvements in reliance on such option; others that the lessee made a good faith effort to agree upon a reasonable rental for the renewal term, with the court finding that the failure of the lessor to ascertain what rental could be paid by a bona fide lessee was in bad faith, since the rental was ascertainable; and a finding that a reasonable rental for the renewal term was $3.50 per acre per year.


author: MASSEY, Chief Justice.

text:
    Don HAMPTON, Appellant, v. Robert S. McCAIG et al., Appellees.
    No. 17726.
    Court of Civil Appeals of Texas, Fort Worth.
    May 28, 1976.

      Stockard & Stockard, and Gerald E. Stockard, Denton, for appellant.
    Sullivant, Meurer, Harris & Sullivant, and Belvin R. Harris, Gainesville, for appel-lees.
   OPINION

MASSEY, Chief Justice.

Plaintiffs, Robert S. McCaig, et al., obtained judgment against defendant Don Hampton and he appealed. Dispute was upon boundary.

Reversed, with cause remanded.

Plaintiffs’ suit is in form of trespass to try title for 55 acres of land allegedly owned by plaintiffs out of the Woodfin Survey, being part of 140 acre tract originally conveyed by one Winter to Spradling by deed recorded in Vol. 134, page 241, Cooke County Deed Records, described by metes and bounds (somewhat abbreviated) as follows: “BEGINNING at the Southeast corner of the 83½ acre tract conveyed by W. J. Wilson ... to James T. Butt . the Northeast corner of the 55 acre tract conveyed by G. W. Spradling to B. F. Carter . . . ; THENCE West with fence 275 varas, corner on south bank of branch being the inner corner of said J. T. Butt tract; THENCE South 119 varas to Southeast corner of said J. T. Butt tract; THENCE N 88 W with fence 560 varas to SW corner of said J. T. Butt tract on West line of said 140 acre tract; THENCE S 2 W with west line . . . ; THENCE East . . . ; THENCE North . . . ; THENCE East . . . ; THENCE South . . . ; THENCE East . . . ; THENCE North with said road 470 varas to the beginning.” (Emphasis is supplied.) The description alleged is of an enclosure as to which distances and directions other than along the north boundary is unimportant in our consideration of the case.

Further allegation was that defendant owns an adjacent tract, to the north therefrom, and that in 1973 he destroyed plaintiffs’ north boundary line fence and proceeded to build a new fence to the south of the location of what had theretofore marked plaintiffs’ north boundary line and upon plaintiffs’ land to the south, therefrom so as to enclose with his own land approximately five (5) acres of land belonging to plaintiffs. To be noted is that there was no specific allegation of ouster of plaintiffs’ possession of the five acres.

It is obvious by the evidence, particularly that of the defendant, that the nature of the suit is to establish a disputed boundary line location though brought in form of trespass to try title; and that defendant concedes that he does not claim any of plaintiffs’ land. It is fortunate that the trial court obviously treated it as such. Had the court rendered a take-nothing judgment for defendant upon his plea of not guilty an appeal by plaintiffs would pose a troublesome problem. Plaintiffs failed to prove their title either by chain of title from the sovereign or by limitation. The appeal being by the defendant, we are free to remand the cause for a new trial in the interest of justice and because plaintiffs’ case was not fully developed. T.R. C.P. 434, “If Judgment Reversed.”

It is apparent that plaintiffs treated the trial of the case below as one which could be conducted economically and without seeking the services of a surveyor, and one in which they could proceed by proving the defendant’s south boundary line by defendant’s deed in the belief that to do so would establish their own northern boundary. Plaintiffs’ evidence did not establish their own northern boundary line by that proof. They attempted — without completion of proof — to establish a limitation title. It is not clear whether plaintiffs’ land has ever been surveyed “agreeably to law.” Plaintiffs’ proof failed.

The evidence showed that plaintiffs’ predecessors in title (or some of them) claimed ownership of land to a fence marking their northern boundary. By introduction of their own pleading plaintiffs intended thereby to show that the fence ran from the place of the BEGINNING therein alleged (which might be fixed by reference to the proper location on the ground by finding the Southeast corner of a certain 83½ acre tract which was subject to a deed of record between third-parties and not by any ancient or other landmark) to the West with fence, thence South, thence West with fence, etc. Plaintiffs claimed title to all the land south of the aforesaid line as qualified by the term “with fence.” Obviously the fence referred to was that of some fence which was in existence and referred to by some deed which would be in plaintiffs’ chain of title. It is not known when such reference was first made in any deed.

There was testimony that a fence had been in existence along the north part of the land as to which plaintiffs presently claim title for a period in excess of fifty years. It is without dispute that such fence was not one which ran in a straight line. Rather was it a fence in timbered land. It had originally heen erected, and thereafter maintained, by fastening wire to convenient trees. In other words it had been a “zigzag” fence; perhaps one intended to run along an approximate straight line, but was one which actually radically deviated therefrom in a meander.

Defendant had “bulldozed” and felled the trees to which the wire was fastened, or at least a good portion of them, so that the old “fence line” cannot be determined with 100% accuracy. So far as was shown a surveyor could not, by aid of any field notes, determine the old “fence line”; he could only establish by an approximation where it had been before defendant destroyed it by making field notes according to antecedent placement of markers as designated by someone able to show where the fence had formerly been located. Obviously there would be necessity to show limitation title along with such proof if other title capable of proof should fail to show that the entire fence was on plaintiffs’ own land, saving, perhaps, at the northeast and northwest corners.

In other words plaintiffs’ necessity in establishing a prima facie ease, if he would show his entitlement to prevail by the pleadings upon which he has declared, is to establish the ground location of the fence destroyed by the defendant and couple this with proof of a clear title to all land lying south of the fence either by chain of title or by limitation title. In the trial from which there has been an appeal plaintiffs failed to discharge their burden of proof.

The trial court, upon evidence, did find that the new fence had been constructed by the defendant at a location which was to the south of the old “fence line” (at least in part) and that Mason Kirby was capable of walking the old fence line so as to determine its former location. The judgment of the court read in part as follows: “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant, Don Hampton, be and is hereby ordered to remove the fence . . . and rebuild the boundary line fence between Plaintiffs’ and Defendant’s lands at its original location which shall be located, marked and staked by Mason Kirby who is hereby appointed by the Court to perform such duty and he shall be paid a reasonable fee for such services which are taxed as costs herein; . . . .” Additionally there was a judgment award of $1,000.00 in favor of plaintiffs and against defendant for destruction of trees upon plaintiffs’ property. The decree did not adjudicate title, which from the evidence was matter in dispute, at least as applied to some acreage.

To be observed from what we have said is that there was not sufficient evidence of title or of boundary location to support plaintiffs’ judgment, nor was there sufficient evidence that it was plaintiffs’ land upon which trees were destroyed. The judgment was insufficient to so identify the land that an officer charged with the duty of executing a writ of possession could go on the ground, and without exercising judicial functions ascertain the locality of the boundary line. Of course the trial court could not have prepared a judgment which satisfied this legal requisite of judgments by the evidence presented, but aside from such failure in evidence the ineffectiveness of the judgment requires that it be set aside on appeal. 9 Tex.Jur.2d, p. 638, “Boundaries,” Sec. 85, “(Verdict and Judgment) — In general.”

There was failure of the judgment to fix the amount to be taxed as costs for Mason Kirby’s future services. Thereby was denial to defendant of opportunity to complain relative to value of his services and amount to be taxed to pay for them at some time after the purported final judgment. Additionally, the part of the judgment which directed Mason Kirby to go on the premises and locate, mark and stake a location for defendant to replace a fence constituted an impermissible delegation of judicial powers in executing a judicial function. Noted is that Kirby is not a surveyor and that title could not be determined by his actions in designating the location for placement of a fence no matter when he might perform, or whether he already had performed at time of trial.

Defendant has cited the following on the matter of nondelegability of the judicial function and on error as applied thereto: Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 645 (1933); 12 Tex.Jur.2d, p. 414, “Constitutional Law,” Sec. 69, “(Judicial Power) —In general”; Seagraves v. Green, 116 Tex. 220, 288 S.W. 417, 425 (1926); Crum v. Randall, 198 S.W.2d 936 (Tex.Civ.App., Dallas, 1946, no writ history); Brown v. Bay City Bank & Trust Co., 161 S.W. 23, 25 (Tex.Civ.App., Austin, 1913, no writ history); Lewis v. Texas Department of Public Safety, 407 S.W.2d 855 (Tex.Civ.App., Waco, 1966, no writ history); Schunior v. Russell, 83 Tex. 83, 18 S.W. 484, 488 (1892); Westbrook v. Guderian, 3 Tex.Civ.App. 406, 22 S.W. 59 (1893, no writ history).

There are other points of error brought forward by defendant upon which we have not written. Some complaints are good and some are not; but in any event we are satisfied that reversal is required as applied to complaints in points of error upon which we have written.

In view of the fact that another trial will be required it is suggested relative to plaintiffs’ demand for damages by reason of defendant’s destruction of trees on their property that in the event no more is shown relative to the value of the trees at the retrial of the case the measure of damage would be the difference in market value of the plaintiffs’ land immediately before and immediately after their destruction.

Judgment is reversed, with the cause remanded for a new trial.


author: RALEIGH BROWN, Justice.

text:
    J. L. WILLIAMS and B. J. Chafin, Appellants, v. ADVANCED TECHNOLOGY CENTER, INC., Appellee.
    No. 4921.
    Court of Civil Appeals of Texas, Eastland.
    May 27, 1976.
    Rehearing Denied June 17, 1976.
    Michael R. Knox and Larry L. Gollaher, Thompson, Coe, Cousins & Irons, Dallas, for appellants.
    David S. Kidder, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is a summary judgment case. J. L. Williams and B. J. Chafin, owners and lessors of a building, sued Advanced Technology Center, Inc., lessee, for damages to the building caused by an explosion and resulting fire during the term of the lease. It is conceded the real party in interest as plaintiff is the fire insurance company which paid the damage claim and the suit is one in subrogation. Both parties filed motions for summary judgment. The plaintiffs’ motion was denied; defendant’s granted. Plaintiffs appeal.

One point of error is presented:

“The Trial Court erred in holding that the waiver of subrogation clause in the lease provided a defense to this action notwithstanding the lessee’s breach of that lease by permitting the demised premises to be used for an operation extra hazardous on account of fire.”

The lease agreement contained the following provisions:

“17. INSURANCE:
A. Tenant shall not permit the demised premises to be used for any operation deemed extra hazardous on account of fire or otherwise or which would render void the insurance carrier by Landlord.
B. If Tenant, after taking possession of the demised premises, should make any additions and/or alterations to the premises, and/or subsequent to Tenant’s original use and occupancy of said premises, should change its operations or vacate the premises, and thereby cause an increase in the fire and extended coverage premiums, the Tenant shall pay to the Landlord as additional rental the amount of such increase upon demand by Landlord, whether or not the Landlord has consented to such additions and/or alterations and/or change in operations.
C. Any insurance which may be carried by Landlord or Tenant against loss or damage to the building and other improvements situated on the demised premises shall be carried for the benefit of the Landlord to the extent of loss or damage to the building or improvements owned by the Landlord and for the benefit of the Tenant to the extent of loss or damage to improvements owned by the Tenant, and the proceeds of such insurance shall be under the control of the party for whom such insurance is carried.
D. Landlord agrees that throughout the term of this lease it will, at Landlord’s cost, keep all buildings and improvements situated on the demised premises insured against fire and extended coverage perils to the extent of the full insurable value of said buildings and improvements.
E.If during the second full year after the beginning date of this lease, or during any subsequent year of the primary term of this lease or any renewal or extension thereof, the insurance premium for the amount of the full insurable value of the demised premises shall be in excess of the insurance premiums for the amount of the full insurable value of the demised premises for the first full year after the beginning date of this lease, Tenant shall pay to Landlord as additional rental, upon demand of Landlord, the amount of such excess.”
“26. WAIVER OF SUBROGATION: Each party hereto hereby waives any and every claim which arises or may arise in its favor and against the other party hereto during the term of this lease or any extension or renewal thereof for any and all loss of, or damage to, any of its property located within or upon, or constituting a part of, the premises leased to the Tenant hereunder, which loss or damage is covered by valid and collectible fire and extended coverage insurance policies, to the extent that such loss or damage is recoverable under said insurance policies. Said mutual waivers shall be in addition to, and not in limitation or derogation of, any other waiver or release contained in this lease with respect to any loss or damage to property of the parties hereto. Inasmuch as the above mutual waivers will preclude the assignment of any aforesaid claim by way of subrogation (or otherwise) to an insurance company (or any other person), each party hereto hereby agrees immediately to give to each insurance company which has issued to it policies of fire and extended coverage insurance written notice of the terms of said mutual waivers, and to have said insurance policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waivers.”

Fire and extended coverage insurance was carried on the premises. A claim for loss under the policy was made to the insurance company. The insureds were paid $20,383.44 by their insurer, the exact amount of damages sought in the instant case.

It is not contested lessee was conducting an operation that was “extra hazardous on account of fire” nor that this is a subrogation case. Appellant argues lessee may not ignore one provision of the lease agreement and defend upon the basis of another provision. In support of such position, cases are cited that announce the rule a party to a contract who is himself in default cannot maintain a suit for its breach. The lessee in the instant case has not brought suit for breach of the contract and thus the cited cases are distinguishable.

The court in International Insurance Company v. Medical-Professional Building of Corpus Christi, 405 S.W.2d 867 (Tex.Civ.App.—Corpus Christi 1966, writ ref. n. r. e.) examining the effect of a waiver clause similar to the one under consideration stated:

“The insurer’s right of subrogation is derived from the rights of the insured, and is limited to those rights, and there can be no subrogation where the insured has no cause of action against the defendant . it is a well-settled rule of law that where an insured settles with or releases a wrongdoer from liability for a loss before payment of the loss has been made by the insurance company, the latter’s right of subrogation is thereby destroyed. British and Foreign Marine Insurance Co. v. Gulf, C. & S. F. Ry. Co., Tex.Sup.Ct., 63 Tex. 475; Maryland Motor Car Ins. Co. v. Haggard, Tex.Civ.App., 168 S.W. 1011; Security Storage & Van Co. v. General Insurance Co., Tex.Civ.App., 310 S.W.2d 729; Millers Mutual Fire Insurance Company of Texas v. Mitchell, Tex.Civ.App., 392 S.W.2d 703; Gulf Ins. Co. v. White, Tex.Civ.App., 242 S.W.2d 663.”

Paragraph 26 of the lease agreement expressly provides that each party to the agreement waives any claim in favor or against the other party for loss or damage covered by valid and collectible fire insurance to the extent that such loss was recoverable under an insurance policy and that each party should give written notice of the mutual waivers to his insurer. This release from liability for loss was made before payment of the loss by the insurer.

Williams and Chafin recovered their fire loss; therefore, under the agreement they would have no claim for loss against Advanced Technology Center, Inc. Since the insured has no claim for loss, insurer has none. Fishel’s Pine Furniture v. Rice Food Market, 474 S.W.2d 539 (Tex.Civ.App—Houston (14th Dist.) 1971, writ dism’d).

The point of error is overruled. The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    V/W REALTY SALES AGENCY, Appellant, v. LONG MEADOWS COUNTRY CLUB, INC., Appellee.
    No. 1049.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 27, 1976.
    Rehearing Denied June 17, 1976.

      Ronald L. Ramey, Houston, for appellant.
    Sam S. Minter, Minter & Mahon, Houston, for appellee.
   OPINION

YOUNG, Justice.

This is a suit by a real estate broker against the owner of a golf course with attendant stock and equipment to recover a commission for negotiating a sale which was not completed. In a non jury trial, the trial court rendered judgment for the plaintiff for $5,000.00 instead of $90,000.00 sought by the plaintiff. The plaintiff broker has appealed.

In a written contract of sale, dated March 22, 1973, John Jamail agreed to buy from Long Meadows Country Club, Inc., 126.58 acres of land and the improvements thereon together with an inventory of goods and an accumulation of equipment. The purchase price of $1,500,000.00 was to be paid all in cash at the time of closing of which $10,-000.00 was initially deposited, as part payment, with Southwest Land Title Company. Closing was to be effected within 90 days from the date of the contract. Jamail, the president of Long Meadows, and a partner of V/W Realty Sales Agency all signed the contract.

The pertinent clauses about the real estate commission read in part as follows: “. . . Should the Purchaser fail to

consummate this contract as specified for any reason, except title defects, Seller shall have the right to retain said cash deposits as liquidated damages for the breach of this contract, and shall pay to Agent therefrom the sum of $5,000.00 or Seller may enforce specific performance of this contract.
* * * * * *
Seller agrees to pay the undersigned duly authorized agent a commission of $6% of sales price in cash for negotiating this sale. . . . ”

When the 90-day time for closing arrived, Jamail defaulted. Then followed a series of lawsuits and ancillary activities involving Long Meadows, Jamail and the property under contract.

After Jamail’s default, Long Meadows filed suit on July 25,1973, to enforce specific performance. On August 24 Long Meadows and Jamail by an extension agreement postponed the closing date of the contract of sale until September 20. That suit was then dismissed on motion of Long Meadows. On the new closing date, Jamail again defaulted.

Long Meadows thereafter filed another suit on November 2 to enforce specific performance which suit was dismissed on January 9, 1974. Later Jamail filed a suit on January 28 to enforce specific performance against Long Meadows.

In the meantime Jamail, as debtor, had filed proceedings on November 28,1973, for an arrangement in the bankruptcy court at Houston. The bankruptcy judge on March 5, 1974, held, among other things, that Ja-mail had defaulted on the original earnest money contract and the extension thereof; that Jamail had no claim of title or interest in the subject property; and that Long Meadows was entitled to the $10,000.00 earnest money deposited with the title company.

Subsequently, the title company by letter tendered to V/W Realty the $5,000.00 (one-half of the earnest money deposit) provided in the contract of sale. V/W Realty refused this tender and thereafter filed suit against Long Meadows seeking $90,000.00, being 6% of the contracted purchase price of $1,500,000.00.

The parties went to trial primarily on stipulated facts. After a non jury trial, the trial court rendered judgment for V/W Realty against Long Meadows for $5,000.00 of the $10,000.00 held on deposit by the title company. From that judgment plaintiff V/W Realty appeals.

In one point of error, the appellant asserts error by the trial court in granting judgment for $5,000.00 plus costs instead of $90,000.00. In that regard, the appellant says that when it produced a purchaser acceptable to Long Meadows as shown by the signing of the contract dated March 22, 1973, the 6% commission, or $90,000.00, was thereby earned by it as the broker.

In support of its position, the appellant cites Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930); Frances v. Foster, 113 Tex. 521, 260 S.W. 1023 (1924, opinion adopted); McPherson v. Osborn, 475 S.W.2d 804 (Tex.Civ.App.—Amarillo 1971, no writ); Don Drum Real Estate Company v. Hudson, 465 S.W.2d 409 (Tex.Civ.App.—Dallas 1971, no writ); McNeil v. McLain, 272 S.W.2d 573 (Tex.Civ.App.—Fort Worth 1954, no writ); Peters v. Coleman, 263 S.W.2d 639 (Tex.Civ.App.—Fort Worth 1953, writ ref’d n. r. e.); Caneer v. Martin, 238 S.W.2d 828 (Tex.Civ.App.—Waco 1951, no writ); Jones v. Parker, 26 S.W.2d 742 (Tex.Civ.App.—Austin 1930, no writ).

Some of those cases generally support the recognized rule that when a broker produces a purchaser whom the owner accepts by signing a binding contract with him, the broker has earned his commission and the owner assumes the risk of the purchaser’s nonperformance. Frances v. Foster, supra; Don Drum Real Estate Company v. Hudson, supra; McNeil v. McLain, supra.

And some of appellant’s cited cases agree with the well established principle that when a broker produces a purchaser able and willing to buy on the owner’s terms, the broker is entitled to his commission if completion of the sale is prevented by fault of the owner, as by the owner’s failure or inability to comply with the contract of sale, or by mutual recission by the owner and purchaser. Stevens v. Karr, supra; McPherson v. Osborn, supra; Don Drum Real Estate Company v. Hudson, supra; Peters v. Coleman, supra; Caneer v. Martin, supra; Jones v. Parker, supra.

But we deem the applicable rule in our case to be that even though a real estate agent or broker has produced a purchaser who contracts to buy on the owner’s terms, if the contract provides that upon the failure of the purchaser to comply, the owner has the option of retaining the earnest money as liquidated damages and is required to divide it with the agent, then if the owner exercises that option, the agent is limited to his share of the earnest money and he may not recover a commission based on a percentage of the purchase price. Shiner v. Naylor, 185 S.W.2d 237 (Tex.Civ.App.—San Antonio 1945, no writ); Turner v. Pounds, 43 S.W.2d 1104 (Tex.Civ.App.— Galveston 1931, no writ). See Moorman v. Harris, 217 S.W.2d 182 (Tex.Civ.App.—San Antonio 1949, no writ).

So when Long Meadows elected under the contract, as it eventually did in bankruptcy court, to retain the deposit of $10,000.00 as liquidated damages and to share it equally with V/W Realty instead of enforcing specific performance after Jamail defaulted, then as the court in Shiner at page 238 said: “The contract must be construed as providing . . . the agent would receive (his share of the earnest money) as liquidated damages in lieu of a claim for a commission. . . .” This is so even though the contract also contained a provision for a commission based upon a percentage of the selling price. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.


author: BREWSTER, Justice.

text:
    Robert A. MARSHALL, Appellant, v. GOOD TIMES, INC., Appellee.
    No. 17727.
    Court of Civil Appeals of Texas, Fort Worth.
    May 28, 1976.
    Rehearing Denied June 18, 1976.

      Thomas A. Melody, Dallas, and J. Dan Connelly, Arlington, for appellant.
    William K. Rosenberry, Arlington, for ap-pellee.
   OPINION

BREWSTER, Justice.

This is an appeal from an interlocutory order overruling the appellant’s motion to dissolve a temporary injunction.

To be considered first is a motion filed herein by appellee, Good Times, Inc., to dismiss the appeal for lack of jurisdiction.

We overrule the motion to dismiss the appeal.

The controlling facts are hereafter set out. The trial court granted a temporary injunction in favor of the appellee, Good Times, Inc., on September 19, 1975. On September 29, 1975, the appellant, Robert A. Marshall, filed in the trial court a motion that he called a “Motion for Rehearing and Motion to Dissolve Temporary Injunction.” The relief therein prayed for was that he be granted a rehearing and that the temporary injunction granted against him on September 19, 1975, be set aside. The trial court overruled the motion to dissolve on October 9, 1975, and that order stated that the appellant gave notice of appeal from that ruling of the trial court. Cash in lieu of appeal bond was then filed on October 14, 1975, and appellant filed the transcript in this Court on October 29, 1975.

Rule 385, T. R. C. P., provides in substance that where an interlocutory decree is being appealed from, the appeal bond and the transcript must be filed within twenty days after rendition of the order appealed from. Timely filing of the appeal bond and transcript are jurisdictional requisites of an appeal from an interlocutory decree. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956 (1943).

It is apparent that the appeal bond and transcript were both filed more than twenty days after the trial court granted the temporary injunction on September 19, 1975, but both of them were filed within twenty days after the trial court on October 9, 1975, overruled appellant’s motion to dissolve the temporary injunction.

Appellee’s motion to dismiss the appeal was based on the contention that the motion to dissolve the injunction that appellant had filed in the trial court was really no more than a motion for new trial and that appellant cannot legally extend the time in which to perfect an appeal from the order granting the temporary injunction by filing a motion for new trial. Appellee’s theory was that appellant had twenty days from September 19, 1975, in which to perfect its appeal from the order granting the injunction. Since this was not done appel-lee urges that this Court of Civil Appeals did not acquire jurisdiction of this appeal.

Appellant’s position is that Rule 385(d), T. R. C. P., also authorizes an appeal from an order overruling a motion to dissolve a temporary injunction. Appellant contends that the order he is appealing in this case is the October 9, 1975, order that overruled his motion to dissolve the temporary injunction.

We hold that appellant did file his transcript and cash in lieu of an appeal bond in this case in time to perfect an appeal from the October 9,1975, order overruling his motion to dissolve the temporary injunction, which appeal is authorized by Rule 385(d), T. R. C. P. It is an appeal from that order that has been perfected and that is now before the Court by virtue of this appeal. Bobbitt v. Gordon, 108 S.W.2d 234 (Tex.Civ.App., Beaumont, 1937, no writ hist.).

We also hold that appellant did not perfect an appeal to this Court from the trial court’s September 19, 1975, order granting the temporary injunction for the reason that he did not file a transcript and appeal bond within twenty days from the date of that order- as is required by Rule 385, T. R. C. P.

The remaining part of the opinion is devoted to the merits of the case.

This action was filed by Good Times, Inc., plaintiff, against Robert A. Marshall, the defendant, to obtain an injunction against Marshall enjoining him from allegedly breaching an employment contract by competing with the plaintiff and its subsidiaries. A temporary injunction was also sought by plaintiff against defendant to enjoin defendant from competing with the plaintiff and its subsidiaries during the pendency of the suit. A hearing held on September 15, 1975, resulted in the trial court granting a temporary injunction on September 19, 1975, temporarily enjoining Marshall during pendency of the suit from competing with plaintiff and its subsidiaries by doing the acts therein specified. This is not an appeal from the order granting the temporary injunction, but is an appeal from a later trial court order overruling a motion to dissolve the temporary injunction.

The law applicable to cases involving temporary injunctions and to appellate review of such cases is stated in Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962) as follows: “In suits for temporary injunctions, the trial judge is endowed with broad discretion to grant or deny the injunction. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235. Accordingly, the scope of appellate review in such cases is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion.”

To the same effect are Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952) and Ben Wheeler Ind. Sch. Dist. v. County School Trustees, 414 S.W.2d 477 (Tex.Civ.App., Tyler, 1967, ref., n. r. e.).

This appeal from the order overruling appellant’s motion to dissolve the temporary injunction is also governed by the principles that are announced in the cases just cited. The determination of the question as to whether or not to dissolve the temporary injunction was a matter lying within the discretion of the trial court, and the scope of this appeal from the order of the trial court overruling the motion to dissolve the temporary injunction is also limited to the narrow question of whether the action of the trial judge in overruling the motion to dissolve the temporary injunction constituted an abuse of discretion.

The burden of proving that the trial court abused its discretion is on the one attacking that court’s action. Lipscomb v. Perry, 100 Tex. 122, 96 S.W. 1069 (1906) and Schroeder v. Brandon, 141 Tex. 319, 172 S.W.2d 488 (1943).

In this case the appellant did not furnish this Court with a statement of facts that reflects any part of the proceedings that occurred at the October 9, 1975, hearing of the motion to dissolve the temporary injunction. We therefore do not know what any of the evidence was that was offered on that occasion.

In the absence of a statement of facts reflecting the proceedings that occurred or the evidence offered at the hearing of the motion to dissolve the temporary injunction, the Court of Civil Appeals is required to presume on appeal that the trial court’s action in overruling the motion to dissolve the temporary injunction was not an abuse of the discretion vested in the trial court. Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App., Beaumont, 1975, ref., n. r. e.) and Soobitsky v. Continental Trailways Tours, Inc., 502 S.W.2d 902 (Tex.Civ.App., El Paso, 1973, no writ hist.).

The record before us does contain a statement of facts filed in this Court on December 10, 1975, that reflects the evidence introduced at the September 15,1975, hearing of the application for a temporary injunction that was granted on September 19, 1975. That, however, is not the order from which this appeal was perfected.

The evidence at the hearing of the application for temporary injunction showed that appellant had owned a business in California which he sold to appellee for $40,000.00. The purchaser planned to and later did move the business to Texas. In connection with the deal the appellant agreed to work in Texas as General Manager of one of appellee’s subsidiaries. One provision of the employment contract was that: “As further consideration for this contract Employee covenants that he will not engage in any business or compete in any way either directly or indirectly with Employer or its divisions or subsidiaries including, but not limited to, the manufacture of seats, vans or recreational vehicles for a period of two years from termination of employment anywhere in the State of Texas.”

The evidence further showed that in less than two years after he resigned from his job with the appellee he did engage in business in competition with his employer.

We also hold that the evidence presented at that hearing does not indicate that the trial court abused its discretion in overruling appellant’s motion to dissolve the temporary injunction.

There are other reasons why we must sustain the trial court’s ruling.

Appellant’s brief makes this opening statement: “This is an appeal from a temporary injunctive order entered in favor of Appellee in which appeal the Appellant seeks to have this Court set aside the temporary injunction.”

The statement just quoted is incorrect because the record shows that appellant did not file his appeal bond and transcript in 20 days after the temporary injunction order was rendered and signed. Therefore no appeal was perfected from that order.

Even so, the appellant’s complete brief is handled as if this was an appeal from the order granting the temporary injunction.

He did file his cash in lieu of appeal bond and his transcript in time to perfect an appeal from the court’s order overruling his motion to dissolve the temporary injunction. He did perfect an appeal to this Court from that order, and only from that order.

In appellant’s brief he makes no complaint whatever about the ruling of the court that the appeal is taken from — that is the rendition of the order overruling the motion to dissolve the temporary injunction. For example, appellant’s brief contains 5 points of error. In each of those points the appellant says that the error that he therein complains of is the action of the trial court in “rendering an injunctive order.” He then in each of the various points urges a different reason why the trial court erred in “rendering an injunctive order.”

As has been shown, the appellant did not perfect an appeal from the order wherein the temporary injunction was rendered.

We have considered and overrule each of the 5 points urged in appellant’s brief.

The judgment is affirmed.


author: PER CURIAM.

text:
    Ann BYARS, Petitioner, v. Estil VANCE, Jr., Chairman Democratic Executive Committee, et al., Respondents.
    No. 19532.
    Court of Civil Appeals of Texas, Fort Worth.
    June 1, 1976.
    L. Clifford Davis and Huey P. Mitchell, Fort Worth, for petitioner.
    Estil Vance, Jr., pro se.
   OPINION ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS

PER CURIAM.

This is an original proceeding in the Court of Civil Appeals. Petitioner seeks writ of mandamus to compel removal from the Democratic Party ballot the name of Bobby Webber, candidate for nomination as State Representative. Webber and Leonard Briscoe are the two candidates, having received the greater number of votes cast at the first primary election among a field of qualified candidates for nomination. Both are undisputedly candidates qualified by law and by party regulation. The names of both are scheduled to appear on the second or “run off” ballot in the forthcoming election. It is such ballot with which they are concerned.

Allegedly Webber forfeited his right to have his name on the ballot by reason of a certain violation of law. Such was brought to the attention of Estil Vance, Jr., Chairman of the Democratic Executive Committee for Tarrant County, Texas. The area encompassed by District 32-H lies wholly within such county. Mr. Vance refused to remove Webber’s name from the ballot.

Petitioner then presented her petition for mandamus, along with a motion for leave to file the same, in this Court of Civil Appeals. Hearing was upon the petitioner’s Motion for Leave to File.

Leave to file petition for mandamus refused.

In Chapter Fourteen of Texas Election Code is contained Art. 14.08, “Leave Name Off Ticket” (also elsewhere numbered as Art. 14.09 in Vernon’s Annotated Statutes). Therein is provision that any candidate who shall knowingly permit or assent to any violation of any provision of the chapter shall forfeit the right to have his name appear on the ballot of any forthcoming primary election. It is by purported authority of the article that relief by mandamus is demanded. Facts purportedly showing Webber’s violation are alleged.

The petition for mandamus and motion for leave to file such is by Ann Byars, presenting herself in the capacity of one entitled to vote at the forthcoming “run off” election. There has not been any join-der in the motion or petition by the District Attorney nor by the Attorney General. Clearly the proceeding does not qualify as one brought, by quo warranto.

Article 14.08 (or 14.09) provides relative to the aforementioned Chapter Fourteen, as follows: “Proceedings by quo warranto to enforce the provisions of this Section, or to determine the right of any candidate alleged to have violated any provision of this Chapter, to have his name placed on the primary ballot, . . . may be instituted on the complaint of any citizen in the district court of any county, the citizens of which are entitled to vote for or against any candidate who may be charged in such proceedings with any such violation.”

There is distinction to be made between a proceeding in which the objective is to compel the placement of the name of a candidate on the ballot and a proceeding in which the objective is to compel the removal of the name of a candidate from the ballot on which, by reason of his qualification, it has already been placed.

As applied to the former the proceeding is not one which must be brought as in quo warranto. See cases annotated under V.A. T.S., Art. 1735a, “Mandamus in connection with elections and political party conventions”. See also the case of Geiger v. DeBusk, 534 S.W.2d 437 (Tex.Civ.App., Dallas, 1976), a case in which mandamus was sought by an individual and right to relief was sustained though not brought as a proceeding in quo warranto. Such case was one in which it was undisputed that the person whose name was sought to be removed from a party primary ballot had never qualified so that he was become a candidate. We deem such case as one which falls in this situation, and not in the latter. In any event it was not a situation to which Chapter Fourteen had application.

As applied to the latter situation, where the objective of the proceeding is to remove the name of a candidate from a ballot, lawfully appearing thereon because of his compliance with requisites and because he was become a true qualified candidate, there is no means other than by a proceeding in quo warranto in which his name may be ordered removed from the ballot. Shaw v. Miller, 394 S.W.2d 701 (Tex.Civ.App., Houston, 1965, writ ref., n. r. e.); Owen v. Longuemare, 268 S.W.2d 701 (Tex.Civ.App., El Paso, 1954, no writ hist.).

In the instant case the petition for mandamus is one which this Court has not the power to entertain. The Court’s authority to grant relief would exist only in the event the proceeding was in quo warranto. The proceeding is not so presented. Therefore, it is obvious that we would err should we permit the petition for mandamus to be filed.

Leave to file petition for mandamus is refused.


author: SEILER, Chief Justice.

text:
    Nathan FRIEDMAN, Respondent, v. DIVISION OF HEALTH of Missouri, Appellant.
    No. 59124.
    Supreme Court of Missouri, En Banc.
    May 5, 1976.
    Modified on Court’s Own Motion. Rehearing Denied June 14, 1976.
    John C. Danforth, Atty. Gen. by Louren Wood, Jefferson City, for appellant.
    Charles C. Shafer, Jr., Kansas City, for respondent.
   SEILER, Chief Justice.

This case presents the question of whether the division of health in considering the revocation of a practical nursing home license for failure to meet the requirements of the rules and regulations prescribed by the division for the operation of practical nursing homes, may take into consideration the licensee’s compliance or noncompliance during the preceding several years or whether the division is limited to consideration of the licensee’s compliance or noncompliance during the current license year. The operator contends the latter, on the theory that the issuance of the current license constituted condonation or waiver of deficiencies existing in prior years. The director of the division of health adopted the first view, taking into consideration violations occurring in the years 1968-1970, as well as those in 1971, and revoked the license previously issued. On petition to review, the circuit court agreed with respondent and limited the division to the year 1971, and then, counsel for the division having expressed the opinion that the revocation of the license could not be supported on the evidence relating to the time so limited, the trial court vacated the order of the director revoking the 1971 license and ordered licenses issued for the years 1971, 1972 and 1973. The division has appealed. The judgment was affirmed by the court of appeals, Kansas City district, following which, on motion of appellant, the cause was ordered transferred here because it involves an issue of statewide interest and concern pertaining to the effective enforcement by the division of health of the standards and requirements prescribed for licensed nursing homes in Missouri. We reverse and remand with directions to affirm the action of the director in revoking respondent’s license.

Respondent Friedman is the operator of Riverscene Nursing Home in Kansas City, Missouri. He was first licensed by the division of health in November 1967 to operate Riverscene, with a capacity of 101 patients and 25 bed patients. The division, after notice and a series of hearings, revoked the current license by reason of a number of failures to comply with the requirements and minimum standards promulgated by the division for the operation of nursing homes which occurred in varying degrees throughout the period of his operation of Riverscene.

In his administrative decision to revoke the license, the director made findings of fact specifying violation of regulations as to personnel, medications, medical orders and records, nursing care, furnishings, equipment and supplies, and fire, insect and rodent control and concluded that the management had consistently failed to satisfy the requirements and had violated the minimum standards, constituting a substantial failure to comply.

Was there competent substantial evidence to support the revocation of respondent’s license? The findings and conclusions of the director are amply supported by the record. The nursing home was inspected a number of times in the years 1968-1971. In general, it was dirty and noisome. Housekeeping was poor. Many patients were unkempt, odorous and their rooms, bed and linens were far from being tidy and clean. Flies and roaches were prevalent. Pieces of furniture were in disrepair, the windows were dirty, and floors were not clean. The requirements as to number of licensed practical nurses or registered nurses on duty were not met. The operator was lax about having the required personnel on weekends. There was not sufficient housekeeping personnel, which led to nurse’s aides doing housekeeping work, which reduced the care available for the patients. Patient records were not current. Some of the exit doors were hard to open. There was unsupervised use permitted of matches and smoking. Inflammable liquids were stored on the premises. All in all, there was a clear pattern over the three or four year period involved of an operation which was marginal at best and submarginal a good deal of the time.

When we stop to realize that “Nursing home patients present a particular problem because of several factors: (1) their advanced age (average 82); (2) their failing health (average four disabilities); (3) their mental disabilities (55 percent are mentally impaired); (4) their reduced mobility (less than half can walk); (5) their sensory impairment (loss of hearing, vision, or smell); (6) their reduced tolerance to heat, smoke and gases; and (7) their greater susceptibility to shock” [Nursing Home Care in the United States: Failure in Public Policy, Supporting Paper No. 7, Report of the Subcommittee on Long-Term Care of the Special Committee on Aging, United States Senate, 94th Congress, 2d Session, xx (1976)], it underscores the unacceptableness of the conditions to which these fragile human beings were subjected in respondent’s home and demonstrates how the pattern and persistence of respondent’s past violations would bear on the significance which the division could reasonably attach to similar current violations on the part of respondent.

We now turn to examination of the Missouri statutes governing nursing homes. Acting swiftly in response to an aroused public, the Missouri legislature enacted the present nursing home law, with an emergency clause, a few weeks after the disastrous nursing home fire in Warrenton, Missouri in 1957 in which 73 elderly patients were burned to death. State ex rel. Eagleton v. Patrick, 370 S.W.2d 254, 257 (Mo.1963). The enactment was said in the Patrick case to be “a vital and most important exercise of the state’s police power.”

Under prior nursing home statutes, S.B. 142, Laws of Mo.1941, p. 368, appearing in the 1949 Revised Statutes as Ch. 198, §§ 198.010-070, and the amendments in 1955, H.B. 171, Laws of Mo.1955, p. 698, it was expressly made the duty of the State Board of Health to inspect at least annually all nursing homes in the state and to grant licenses for a period not to exceed one year, after inspection. In both the 1941 and the 1955 acts it was expressly provided that the license should expire one year after date of issuance.

The 1957 act, S.B. 41, Laws of Mo.1957, p. 666, now §§ 198.011-170, which has been described by Dr. H. M. Hardwicke, former director, as a model act, Nursing Homes Magazine, August 1962, is much different in these respects. It contains no requirement for an annual inspection of a licensed home. The license is renewable annually, but the language used is that it “shall be renewable annually” (emphasis added). All that is required is payment of the annual fee and approval for renewal by the division. Section 198.025(1). No mention of inspections, annual or otherwise, is made in conjunction with this provision for renewals. For the division not to renew requires notice and a hearing by the division, with right to judicial review. Section 198.140. A license which shall be renewable unless revoked or suspended is a continuing license, not an annual license. State ex rel. Wolfe v. Missouri Dental Board, 289 Mo. 520, 233 S.W. 390 (banc 1921); Payne v. Real Estate Commissioner of California, 93 Cal.App.2d 532, 209 P.2d 419, 421-22 (1949); State ex rel. Amer. Inst. Mktg. Sys., Inc. v. Missouri Real Estate Comm., 461 S.W.2d 902 (Mo.App.1970). The “approval or renewal by the division” language is to prevent renewal of revoked or suspended licenses or unauthorized transfers or assignments. As noted, the language of expiration one year after issuance was repealed in the 1957 act. By enacting § 198.025, the legislature was creating a license of other than an annually expiring nature, providing the holder thereof desires to continue in business and pays the required fee.

Section 198.120 concerns denial of initial applications for licenses, while § 198.130 concerns revocations or denials of renewals. We note that they are clearly treated differently, the initial inspection requirement not being related to any further inspection requirement. Inspections are still carried on, of course, because the division has a continuing duty to protect the public. But, further inspections are not a condition precedent for the annual renewals.

The procedure for revocation, denial or refusal to renew a license is established in § 198.140. These actions are “authorized . in any case in which [the division] finds there has been a substantial failure to comply with the requirements established under this law.” No time frame is given in reference to the failures or findings. The section does not say “failures during the current license year” or some variation thereof. The scope of the inspection logically includes the prior years in the life of the institution so far as they shed light on whether present deficiencies and shortcomings are continuations of past patterns and likely to continue.

We do not believe it was the intention of the legislature that the annual renewal of the license should operate as a shield from inquiry by the division into the pattern of the operator’s behavior and course of conduct over a number of years or as imposing a statute of limitations of one year (or less) upon the division in acting on violations of standards and regulations by a licensed nursing home. If such were the case then revocation of licenses could be justified only by conditions occurring in the relatively short time span of one year or less. The home not providing acceptable care would be permitted to operate from one year to the next, secure in the knowledge that if it can obtain a renewal, the slate will be wiped clean and it can safely concentrate on getting by for another year. Under this view, all but the most outrageous or flagrant disregard of the nursing home regulations would be sheltered from the sanction of license revocation. A large portion of the incentive to bring a particular nursing home to standard by inspections, noting defects and requiring improvements, followed by re-inspections to see if the improvements were accomplished, with further inspections and continued insistence on improvement, would disappear. It is a serious step to revoke a license, as the patients are the ones likely to suffer the most — they would have to go elsewhere — and we believe the legislature intended the division should have the chance to work with an operator over a period of several years if necessary before concluding there is no alternative other than revocation of the license.

Respondent points out that the license document issued by the division recites that the nursing home “has complied with the minimum standards of the Division of Health” and argues respondent thus is exonerated from any claims of deficiencies during past license years; that by the division’s own certificate, the inquiry is restricted to the current license year. However, the phrasing used on the agency’s certificate does not control the issue, the statute does. And in examining the statute, we must remember the legislature was well aware of the public’s interest in protecting the quality of life of those citizens requiring nursing home care and intended to allow the agency which it charged with the duty of supervision, sufficient latitude in its regulation of nursing homes to effectuate that protection.

The director was fully within the law in considering the conduct and deficiencies in the operation of the nursing home in 1968, 1969 and 1970 as well as the current license year, 1971. Violations of rules and regulations in prior years may well have, as they did here, a direct bearing on how the nursing home is operating today. It is significant, for example, that the housekeeping and general cleanliness were poor in the prior years as well as at the present. An isolated or occasional dereliction is one thing, but a chronic state of poor housekeeping and patient care is much different. Such a state of prior facts is not remote and irrelevant to consideration of whether there is compliance with a set of standards as prescribed by rules and regulations. Some may ask, can the director go back 10 years, 15 years? We need not decide that hypothetical in this case. Here we have a continuing series of inspections over a relatively short and continuous span- — three to four years — disclosing persistent shortcomings and we rule the director was entitled to consider the entire span in determining whether to revoke the 1971 license.

Another matter challenged by respondent before the circuit court was the alleged insufficiency of the director’s findings of fact and conclusions of law. The findings of fact identify and quote the applicable portion of each regulation and then give the date when the noncompliance was found to have existed. For instance, one of the findings refers to the pertinent part of regulation 55 (which pertains to required number of nursing personnel and staff) and states “On August 5, 1971, there was neither an RN or an LPN in charge of patient care in your home.” Another typical finding refers to that part of regulation 55 which prescribes the minimum nursing care for night hours, depending on the number of patients and percentage who are non-ambulatory, and finds that “On December 12, 1968, December 19, 1969, October 16, 1970, August 5, 1971 and October 9, 1971 the requirement for a licensed practical nurse was not met. On January 29, 1968, March 14, 1968, December 12, 1968, February 17, 1969, December 19, 1969, October 16, 1970, December 17, 1970, April 27, 1971, June 21, 1971, August 5, 1971 and October 9, 1971, there were not sufficient nursing personnel.” We believe findings of this type comply with both § 198.140 and § 536.090. The findings inform the licensee and the court of the agency’s basis for its decision to revoke and at the same time are concise. We do not find the findings in the present case subject to the defect found in Iron County v. State Tax Commission, 480 S.W.2d 65 (Mo.1972), relied on by respondent, where the findings were insufficient to show how the controlling issue had been decided. The findings here relate to violation of specific rules and regulations, followed by the conclusion that the nursing home had failed to satisfy many of the requirements of the rules and regulations and that the same constituted a substantial failure to comply. The point is overruled.

The judgment of the trial court is reversed and the cause is remanded with instructions to affirm the action of the director in revoking respondent’s license.

All of the Judges concur.

      . The circuit court’s order was issued August 16, 1973. The original hearings were in 1971. On petition for review in the circuit court of the director’s order to revoke, it turned out the transcription was incomplete because of malfunction of the tape recorder, so the cause was remanded for further proceedings before the division. After further hearings, the director again ordered the license revoked and again the respondent petitioned the circuit court for review. By this time it was 1973.

      . The statute became effective March 13, 1957, S.B. 41, 69th General Assembly, regular session. The fire occurred February 17, 1957.

      . Hereinafter all statutory references are to RSMo 1969.

      . The concept of a continuing license is not new to the Missouri legislature. In fact, the continuing license is the most usual form of health care licensure in Missouri law. For many regulated activities, licenses are renewed as here, in effect upon a simple payment of the annual fee. In each such case, as here, the regulatory agency is authorized to make inspections but is not required to do so annually. This is true of hospitals, §§ 197.060, 197.100 RSMo 1969, boarding homes for the aged, §§ 198.410(3), 198.415 RSMo 1973 Supp. and institutions for mentally retarded patients, §§ 202.910(1), 202.920, RSMo 1973, Supp., and others.

      . There are approximately 425 nursing homes in Missouri (according to the briefs), housing approximately 31,000 patients (according to Statistical Abstract of the United States, table 128, p. 82, 1975 ed.) While the record does not state how many trained inspectors are available to the division or what funds are appropriated for this purpose, it would seem doubtful there is sufficient money or personnel available to make sure each year that every nursing home has been in compliance throughout the year. This would require several thousand inspections per year by inspection teams made up of several qualified people, as knowledge in the fields of nursing, diet, sanitation, construction, fire prevention, plumbing, recreation and related areas is needed to make an adequate inspection.


text:
    Alice RINGWALD, d/b/a Pine Crest Nursing Home, Appellant, v. The DIVISION OF HEALTH of Missouri, and Herbert R. Domke, M.D., Director of the Division of Health of Missouri, Respondents.
    No. 58971.
    Supreme Court of Missouri, En Banc.
    May 5, 1976.
    Modified on Court’s Own Motion. Rehearing Denied June 14, 1976.

      Brian J. Fahey and George J. Bagot, Clayton, for appellant.
    John C. Danforth, Atty. Gen. by Louren Wood, Jefferson City, for respondents.
   SEILER, Chief Justice.

The Missouri Division of Health revoked appellant’s practical nursing home license under Chapter 198, RSMo 1969, and, after the revocation was affirmed on review in the circuit court of St. Louis county, plaintiff nursing home appealed to the Missouri court of appeals, St. Louis district. After opinion by the court of appeals and on application to this court by the respondents, the appeal was transferred here. Art. V, § 10, Mo.Const. 1945, as amended.

In No. 59,124, Friedman v. Division of Health, 537 S.W.2d 547, also decided this date, we held that the division, in considering the revocation of a practical nursing home license was not limited to a consideration of the licensee’s compliance or noncompliance with the rules and regulations during the current license year and that the license in question is a continuing, not annual, one. The present case involves a further variation on the question of what evidence the division can consider in a revocation hearing — specifically, as to testimony taken in an earlier hearing (the 1968 hearing) which ended without any findings being made or order being issued, followed by several annual renewals of the license, followed by a later hearing (the 1971 hearing) where the division did find a large number of major noncompliances occurring in 1971 and ordered the license revoked, the earlier transcript being introduced into evidence and considered both by the division and by the circuit court on judicial review.

Appellant is the owner of a licensed practical nursing home. In July 1971, the division gave notice to appellant of an administrative hearing to determine whether appellant’s license should be revoked or suspended. The notice contained a listing of thirty allegations of “major noncompliances” and stated the listed noncompliances were observed on July 23, 24, and 25, 1971. The notice further stated that the division would again inspect the home within ten days prior to the administrative hearing on August 27, 1971.

On August 23 or 24, 1971, a further inspection was made at appellant’s nursing home and testimony concerning that inspection was admitted without objection at the administrative hearing. Some of this testimony concerned noncompliances which were not contained in the July 1971 notice.

Earlier, in September 1968, the division had conducted an administrative hearing to determine whether appellant's license should be revoked or suspended. Following that hearing, in which, so far as the record here before us shows, no findings were made or orders issued, appellant’s 1968 license was not revoked or suspended and appellant’s license apparently was renewed in 1969, 1970 and 1971. The transcript of the 1968 hearing was admitted in evidence by the division at the 1971 hearing over the objection of appellant that such evidence was incompetent, irrelevant, and immaterial to the issues involved in the instant hearing and too remote in time. The transcript of the 1968 hearing consisted of 131 pages of testimony concerning alleged conditions at the nursing home prior to September 3, 1968, the date of that hearing.

Following the August 1971 hearing, the division issued a letter to appellant in which it listed twenty-three findings denominated major noncompliances and revoked appellant’s license. All incidents of noncompliance named had taken place in 1971, not 1968.

Appellant petitioned the circuit court for judicial review pursuant to §§ 198.140 and 536.100 to 536.140. Among the circuit court’s conclusions of law was that “the revocation of the license is supported by competent and substantial evidence upon the whole record, including the transcript of the September 1968 administrative hearing.” The circuit court’s judgment affirmed the license revocation and the appeal followed.

Appellant contends the 1968 transcript was hearsay but no such objection was made during the administrative hearing, nor on review in circuit court, nor in the court of appeals, and therefore will not be entertained here.

Appellant also contends it was prejudicial error to admit into evidence the transcript of the 1968 administrative héaring on the grounds that it contained testimony which was irrelevant and immaterial to the issues before the agency on August 27, 1971, and too remote in time to have probative value as to conditions existing at appellant’s nursing home in 1971.

There is no question but what the nursing home licensure law contemplates a continuing surveillance of nursing homes in order to effect the ends stated. Section 198.062 requires a home to be open at all reasonable times for inspection. The division is given substantial latitude and flexibility in carrying out its supervisory functions. It is not required to revoke a license upon a finding of noncompliance. The division may suspend a license or refuse to renew pending corrective measures by the licensee and this may or may not involve the actual closing of the home. And, of course, the division could conduct additional inspections to determine if the suspended licensee has come into compliance with the law and regulations before removing the suspension or proceeding to renew the license.

There was a good deal of testimony from the inspectors in the 1968 hearing about particular instances of failure to abide by the rules and regulations; for example: instructions from the doctors as to medication to be given were not followed; there was one instance where a prescription had not been filled as often as would have been necessary had the patient been receiving the medication as ordered by the doctor; nurses’ notes were not kept current; the patients’ charts were not complete; annual physicals were not recorded; weights were not recorded monthly; thermometers were not disinfected properly; catheters were not cleaned before storage; bed patients were not positioned properly so as to avoid foot drop; precautions were not taken to minimize hand contracture or to prevent fingernails from growing into the palm; the home was short on nurse’s aide personnel; the diet was inadequate as to protein; diabetic patients were not fed in accordance with the doctor’s orders; menus were not prepared and posted in advance. Some of these deficiencies were not disputed by the operator, others were. But there were indications the home was improving. One of the inspectors so testified and corrective discussions had been held with the operator about the shortcomings. The operator, Mrs. Ringwald, insisted that she was trying to correct the deficiencies, that she was checking to see that the charts and records were being caught up and was following through personally to see that the doctors’ orders were carried out; that she now had sufficient personnel. A doctor who took care of twenty-four of the patients testified that while he was not familiar with the rules and regulations of the division pertaining to nursing homes, .he did not see any patients in the home who appeared to have nutritional deficiencies or be the victim of nursing home neglect.

It is apparent the division did not deem it necessary to take action following the 1968 hearing, even though it is difficult to believe, after reading the testimony, that the nursing home was in full compliance with the rules and regulations. Section 198.140 is the section which deals with revocation or refusal to renew a license. Under it the division is authorized to act where it finds there has been “a substantial failure to comply with the requirements.” As stated, in this instance, the division made no determination on the basis of the 1968 hearing. Had it done so it would have been required to specify its findings of fact and conclusions of law and provide the operator with a copy. Its silence and failure to act is equivocal and is as consistent with a conclusion that there were certain deficiencies, but that the operator was striving to remedy the defects and the home was improving, as that there were no deficiencies and the nursing home was up to requirements in every respect. Under the facts, therefore, we do not believe that the subsequent renewal of the license in the years 1969, 1970 and 1971 can be regarded as constituting either express or tacit approval of the operation as observed in 1968, nor could the operator reasonably so have regarded it. Appellant was bound to have realized that her operation was under scrutiny and that improvement was required, which she insisted she was making.

So viewed we see no particular defect in the division including in the hearing held in 1971, the transcript of the testimony taken in the 1968 hearing. The 1968 transcript was not offered until the close of the division’s case. By that time there was substantial evidence in the record that many of the shortcomings reported by the inspectors in the 1968 hearing were continuing to be repeated in 1971 and that the anticipated or promised improvement referred to in 1968 had not materialized or had at best been short-lived.

We know that following the 1971 hearing the director found twenty-three major non-compliances, all occurring in the year 1971. Many of these were the same type testified to in the 1968 hearing and as to which corrections and improvements were then said by the operator to be underway. For instance, in 1971 the director found insufficient number of qualified helpers, lack of required staff, medical records deficient, absence of required medications. As stated, similar conditions had been observed in 1968. In addition, in 1971 the director also found numerous instances of patient neglect, examples of patients whose care requirements were beyond the ability of the staff involved, many instances of filth in beds, linens, equipment, and rooms, inadequate fire prevention measures, housing of non-ambulatory patients other than on the ground floor and failure to have at least one attendant on duty at all times in the various separate structures where patients were housed. Interestingly, the operator again contended that she was making improvements, that many of the 1971 defects had been corrected and the implication was she was confident if permitted to continue she could bring the nursing home into compliance.

The division is not restricted to evidence of current noncompliances when it is considering the appropriate remedy — revocation, suspension, or other remedial orders. Friedman v. Division of Health, supra. In order for the division to carry out its supervisory function, it must be allowed to consider the established relevant past conduct of the licensee shown by its records and admitted into evidence when deciding upon what sanction should be imposed consequent to a finding of current noncompli-ances. We therefore hold there was no error under the record before us in admitting the 1968 transcript in the instant case.

Appellant further suggests that there is no evidentiary support for the findings of the division because the record does not reflect the type of nursing home license issued to appellant and, therefore, one cannot know what is “adequate” or “required” as those terms are used in the findings with respect to appellant’s nursing home.

There are three types of nursing homes mentioned in § 198.072 — professional, practical, and domiciliary, and the statute requires the division to prescribe and publish minimum standards for each type of home.

Appellant, in her brief in the court of appeals, admits that she is the “owner and operator of a practical licensed nursing home in St. Louis County . . . ” (emphasis added). The regulations, standards, and specific requirements for that classification of nursing home are set forth as part II of the division’s publication and are not matters of speculation and conjecture. The point is overruled.

Appellant contends that she was deprived of her constitutional right to due process of law under Amendment Fourteen of the U.S. Constitution, and Art. I, § 10, Mo.Const. 1945, in that some of the findings against her were matters which were not set forth in the July 27, 1971, notice to appellant. It is true that findings ten, and sixteen through twenty-three, related to matters not set forth in the July notice. However, there was no objection to the evidence introduced at the hearing as to those matters, and appellant cross-examined and introduced testimony to refute them. Appellant’s petition for review did not complain of the failure to include the particular items in the notice, nor of the admission of evidence relating thereto, nor of the findings having been made without prior specification thereof in a notice.

There is no question that a licensee is entitled to receive notice of the reasons for the proposed revocation. Section 198.140. In this case, the original notice did not contain some of the alleged noncompliances found on the August 23 or 24, 1971 inspection and about which evidence was received. The licensee had the right to object to evidence not within the scope of the notice. She also had the right not to object to the evidence and meet the issues raised at that hearing. In this case, the appellant chose the latter course and will not be heard to complain of that matter on appeal. The point is overruled.

The judgment is affirmed.

All of the Judges concur.

      . All statutory references are to RSMo 1969.

      . The last two dates fell on Saturday and Sunday. One writer has pointed out that inspections should occur not just during the weekdays and after advance notice (when many violations are likely to go undiscovered), but also at nights and on weekends when staff shortages are usually the worst. Brown, An Appraisal of the Nursing Home Enforcement Process, Symposium — Law and the Aged, 17 Ariz.L.Rev. 304, 328 (1975).

      . As respondent points out, closing during suspension is not a practical concept in nursing home licensing because aged and infirm residents of such- homes cannot be moved today and brought back tomorrow.

      . There was no evidence offered at the circuit court hearing except with reference to a stay order. Neither the memorandum filed by plaintiff in circuit court in support of her petition for review nor her brief in the court of appeals make any complaint that the findings which were based upon the August 23 or 24, 1971, inspection were not included as charges in a notice.