author: ROBERTS, Judge. ODOM, Judge

text:
    Ricardo BAYONA, Appellant, v. The STATE of Texas, Appellee.
    No. 51090.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.

      Joseph A. Calamia and Charles Michael Mallín, El Paso, for appellant.
    George N. Rodriquez, Jr., County Atty. and Michael S. McDonald, Asst. County Atty., El Paso, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for simple assault. Appellant was found guilty in a bench trial and punishment was assessed at one year’s probation. The offense occurred on July 27,1974 and trial was held on February 28, 1975.

Appellant and a co-defendant were charged by information with criminally negligent homicide in the death of one David Martinez. The evidence showed that Martinez, a known hemophiliac, was struck at least once by the appellant in the course of an argument. He died several days later as the result of an intracranial hemorrhage.

The trial court expressly acquitted appellant of criminally negligent homicide, but found him guilty of simple assault on a lesser included offense theory. Arts. 37.08 and 37.09, V.A.C.C.P. The only question presented by this appeal is whether simple assault is a lesser included offense of criminally negligent homicide.

Sec. 19.07, V.A.T.C., Penal Code, defines criminally negligent homicide in the following way:

“(a) A person commits an offense if he causes the death of an individual by criminal negligence.”

“Criminal negligence” is defined in Sec. 6.03(d) of the Code and the information in this case tracked the definition faithfully. Under Sec. 22.01(a)(1) of the Penal Code, a person commits a simple assault if he “intentionally, knowingly, or recklessly causes bodily injury to another . . . .” It can be seen that the mental culpability required to prove an assault is higher than that required for criminally negligent homicide. Sec. 6.02(d), V.A.T.C., Penal Code.

Art. 37.09, V.A.C.C.P., provides that an offense is a lesser included offense if:

“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

The higher degree of mental culpability required for an assault clearly removes it as a lesser included offense under Subsec. (3), above; in fact, a more culpable mental state is required to establish its commission. This distinction also defeats the lesser included offense argument, under Subsec. (1), above. Assault requires proof of a fact not needed to establish criminally negligent homicide, to-wit: a higher degree of culpability.

With respect to Subsec. (2), relied upon by the State, assault certainly involves a less serious injury to the victim than does the homicide offense. But, by the terms of Subsec. (2), this less serious injury must be the only difference between the two offenses, and this is clearly not the situation in this case. Finally, assault is obviously not an attempt to commit negligent homicide under Subsec. (4).

We conclude that simple assault cannot be a lesser included offense of criminally negligent homicide. Compare Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976). Therefore, appellant’s conviction for assault cannot stand.

The judgment is reversed and the prosecution ordered dismissed.

ODOM, Judge

(concurring).

I agree with the majority that this conviction for simple assault as a lesser included offense to the charge of criminally negligent homicide must be reversed, but I would reach that conclusion by different reasoning.

The information charged appellant and another with criminally negligent homicide in the following terms:

“. . . RICARDO BAYONA and DAVID CARRILLO, acting together, did then and there cause the death of DAVID MARTINEZ by criminal negligence, namely by striking DAVID MARTINEZ with their fists and kicking him with their feet, and the said Ricardo Bay-ona and David Carrillo ought to have been aware of the substantial and unjustifiable risk that said result would occur, and said risk was of such nature and degree that the failure to perceive it constituted a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the standpoint of the said Ricardo Bayona and David Carrillo.

Appellant was found guilty by the court of assault under V.T.C.A., Penal Code Sec. 22.-01(a)(1), which provides, “A person commits an offense if he: (1) intentionally, knowingly, or recklessly causes bodily injury to another . .

The State relies on the doctrine of lesser included offenses to uphold the conviction. The majority point to the variance in culpable mental states required for criminally negligent homicide under V.T.C.A., Penal Code Sec. 19.07, and for assault under Sec. 22.01(a)(1), supra, to conclude that “assault cannot be a lesser included offense of criminally negligent homicide” (emphasis added). It is my opinion that in this case assault is not a lesser included offense of the criminally negligent homicide charged against appellant as set out in the above-quoted information, because no “intentionally, knowingly, or recklessly cause[d] bodily injury” is alleged in the offense charged. This conclusion, however, does not mean that assault can never be a lesser included offense to criminally negligent homicide.

In Day v. State, Tex.Cr.App. 532 S.W.2d 302, the doctrine of lesser included offenses and Art. 37.09, V.A.C.C.P., were discussed at length. It was there stated:

“The careful reader will observe that each definition in Art. 37.09 is stated with reference to ‘the offense charged,’ and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive or reduces culpability as compared to the offense charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged. We must add, however, that whether one offense bears such a relationship to the offense charged is an issue which must await a case by case determination, both because the statute defines lesser included offenses in terms of the offense charged and because it defines lesser included offenses in terms of the facts of the case.”

My disagreement with the majority’s reasoning lies in the manner of determining the applicability of Art. 37.09, supra. Instead of comparing the statutes defining the primary offense and the assertedly included offense, the court should compare the offense as charged in the State’s pleading instrument with the statute defining the assertedly included offense. In this case application of the test quoted from Day, supra, reveals the same discrepancy in culpable mental states as observed by the majority, and mandates the same disposition.

For these reasons, I concur.

DOUGLAS, J., joins in this concurrence.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Patricia T. DAUGHTREY, Appellant, v. The STATE of Texas, Appellee.
    No. 52256.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.
    James A. Moore and Michael W. Eheman, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Hogan S. Stripling, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for resisting arrest, a Class A misdemeanor, under the provisions of V.T.C.A., Penal Code, § 38.03. Following a verdict of guilty, the court assessed appellant’s punishment at thirty (30) days’ confinement in the county jail and a fine of $150.00, but granted the appellant misdemeanor probation for one (1) year under the terms of Article 42.13, Vernon’s Ann.C.C.P.

In her sole ground of error appellant challenges the sufficiency of the evidence to support the verdict.

The transcription of the court reporter’s notes found in the record is entitled “Partial Statement of Facts.” The certification of the court reporter shows the foregoing transcription of “all the testimony adduced that was reported by me upon the trial.” (Emphasis supplied.) In the court’s approval of the record the following excerpt is found: “I, Neil McKay, Judge of the County Criminal Court at Law No. 5, of Harris County, Texas, do hereby certify that the foregoing portion of the 196 pages comprise a true, completo and correct record in the above styled and numbered cause.”

It is not clear just what part of the record is missing. We do note there does not appear to be a transcription of the court reporter’s notes at the penalty stage of the trial, despite the fact that the order granting probation recites that the court heard further evidence on the issue of punishment following the jury verdict.

Prior to the 1965 revision of the Code of Criminal Procedure, it was well established that in absence of a complete statement of facts or transcription of the court reporter’s notes this court could not pass upon a challenge to the sufficiency of the evidence. Sellars v. State, 401 S.W.2d 835 (Tex.Cr.App.1966); Slade v. State, 400 S.W.2d 570 (Tex.Cr.App.1966); Beavers v. State, 378 S.W.2d 329 (Tex.Cr.App.1964); Sullivan v. State, 377 S.W.2d 952 (Tex.Cr.App.1964).

In Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967), involving a case tried after the effective date of the 1966 Code of Criminal Procedure (January 1, 1966), it was held that in absence of the transcription of the court reporter’s notes constituting the statement of facts on appeal or an agreed statement of facts as provided by Article 40.09, Vernon’s Ann.C.C.P., this court could not pass upon the question of the sufficiency of the evidence.

Further, this court has held that where a defendant challenges the sufficiency of the evidence to sustain a conviction, evidence from the punishment stage, including a judicial confession by the defendant, is to be considered in deciding the question. Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975); Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976). As stated in Boothe at p. 221:

“It would be an exercise in futility to reverse such a case for insufficient evidence [at the guilt stage of trial] where the testimony of the appellant [judicial confession at penalty stage of trial] could be used against him on a retrial.”

As earlier noted, no transcription of the court reporter’s notes from the penalty stage is before us, and we are also unable to determine what other parts of the record may be missing.

It is the responsibility of a defendant, who is not an indigent and who was represented by retained counsel at trial and is represented by retained counsel on appeal, to obtain and pay for a transcriptidn of the court reporter’s notes and to furnish the transcription to the Clerk for inclusion in the record. Dart v. State, 515 S.W.2d 119 (Tex.Cr.App.1974). See also Goodings v. State, 500 S.W.2d 173 (Tex.Cr.App.1973). The record in the instant case does not reflect indigency on the part of the appellant, who appears to be represented by retained counsel.

In absence of a complete transcription of the court reporter’s notes, the question of the sufficiency of the evidence to sustain the conviction cannot be passed on.

The judgment is affirmed.


author: ROBERTS, Judge.

text:
    John William McFADDEN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53261, 53262.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.

      Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Jack Freís, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These appeals stem from a conviction for possession of heroin and revocation of probation. In No. 53,261, the State filed a motion to revoke appellant’s probation alleging that he committed an offense against the law of this State by possessing heroin. Appellant pled true to the motion to revoke. In No. 53,262, the appellant was indicted for such possession. Appellant waived his right to a trial by jury and pled guilty to the indictment. The original sentence of seven years was imposed in the probation revocation and the trial court assessed punishment at seven years for the conviction for possession of heroin. Although two separate cause numbers were assigned, appellant’s pleas of true and guilty were taken at the same hearing, the grounds of error presented in these appeals have been briefed together, and the disposi-tive issue raised relates to a subsequent hearing concerning both of these causes.

The original offense for which appellant was convicted and granted probation was forgery of a sales slip. By his first ground of error, appellant contends that the indictment in that cause contains a fatal variance between the purport and tenor clauses. This indictment alleged that the appellant “. . . did without lawful authority and with intent to injure and defraud, make a false instrument in writing, purporting to be the act of K. Schoenfeld, which false instrument in writing so made was then and there of the tenor following: (sales slip here set out in haec verba).” The sales slip reflects the printed name of the customer as “Kenneth Schoenfeld.” Consequently, appellant argues that the purport clause containing the name “K. Schoenfeld” and the tenor clause containing the name “Kenneth Schoenfeld” amount to a fatal variance. We disagree.

In Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973), we stated that “Any variance between the purport clause and the tenor clause as to whose act the instrument purports to be is fatal. (Citation) This is true even though it was unnecessary to include a purport clause. (Citation)” Id., at 113. However, “If the indictment unnecessarily has a purport clause, the forged instrument itself, as well as the signature thereto, will be looked to and may be used for the purpose of avoiding a supposed variance.” 3 Branch’s Ann.P.C.2d, Sec. 1580 (and eases there cited) (Emphasis added). The signature on the sales slip itself appears as “K. Schoenfeld.” Consequently, even though the purport clause contains the name “K. Schoenfeld” and the instrument set out in haec verba in the tenor clause of the indictment contains the printed name “Kenneth Schoenfeld,” the signature on the sales slip, “K. Schoenfeld,” cures this variance.

Appellant’s first ground of error is overruled.

By his second ground of error, the appellant contends that the trial court erred in refusing to allow him to withdraw his pleas of true and guilty when the State failed to honor its part of the plea bargaining agreement.

The record reflects that a hearing was held on January 10, 1975. At this hearing appellant pled true to the motion to revoke and guilty to the indictment. Both pleas were the fruit of a plea bargaining agreement that had been made known to the trial court. The trial court asked the appellant what he understood the agreement to be. The appellant himself and by his attorney acknowledged that the appellant was to receive seven years on the probation revocation and seven years for the possession of heroin charge, both sentences to run concurrently. The prosecutor also acknowledged that this was his understanding of the agreement. The trial court admonished the appellant of the consequences of his pleas and accepted both the plea of true and the plea of guilty. The appellant received his seven-year sentence on the probation revocation at this time. However, he elected to wait the statutory ten days before receiving sentence on the possession of heroin charge.

On January 20, 1975, the appellant field pro se notices of appeal in both causes. On January 30th, the State filed a written motion to cumulate both seven-year sentences. At this time, the appellant made an oral motion to withdraw his plea of guilty to the indictment on the grounds that the State was failing to abide by its plea bargaining agreement. On January 31, 1975, the appellant filed his written motion to withdraw his plea of guilty to the indictment. No motion was made by the appellant to withdraw his plea of true to the motion to revoke.

On January 30 and January 31, 1975, a hearing was held on the State’s motion to cumulate sentences and the appellant’s motion to withdraw his plea of guilty. At the conclusion of this hearing, the trial court granted the former and denied the latter. In so doing, the court imposed sentence on the possession of heroin conviction at seven years to be cumulated with the seven year sentence in the probation revocation. The appellant’s attorney filed a notice of appeal after the sentencing on the possession of heroin conviction. At this hearing, appellant, his trial counsel, and the prosecutor testified. The appellant was asked specifically at this hearing whether it was his desire to withdraw his plea of true to the motion to revoke. Appellant answered that he only wished to withdraw his plea of guilty. He further stated that he wished to withdraw his plea of guilty because he did not understand any of the prior proceedings and thought that he was only pleading true to the motion to revoke. This was in direct contradiction to the record of the prior hearing on the pleas of true and guilty. During this prior hearing, appellant was carefully admonished of the consequences of his actions.

The prosecutor testified that his part of the agreement was to not actively oppose concurrent sentences. He stated that the reason he was now asking the court to cumulate sentences was because appellant was reneging on his part of the bargain by claiming that he didn’t understand any of the prior proceedings. However, the hearing at which appellant made his claim of misunderstanding was held subsequent and pursuant to the motion to cumulate.

Both sides gave testimony that an agreement not to appeal was never part of the plea bargaining agreement. The prosecutor testified that he did not file the motion to cumulate because appellant was appealing both matters. However, the only thing that transpired between the time the pleas were taken and the time the motion to cumulate was filed was appellant’s pro se filing of his notices of appeal. The appellant testified that it was his intention all along to appeal both matters.

We need not pass on the question of whether the right to appeal may be validly waived as part of a plea bargaining agreement, for this question is not before us. However, our prior decisions dictate that the penalization of the exercise of the statutory right to appeal is a violation of due process of law. Fisher v. State, 511 S.W.2d 506, 509 (Tex.Cr.App.1974); Cleaveland v. State, 507 S.W.2d 769, 770 (Tex.Cr.App.1974); Colburn v. State, 501 S.W.2d 680, 683 (Tex.Cr.App.1973).

The only reasonable inference from the records before us is that appellant was being so penalized. Both sides agreed that the right of appeal was not discussed in the bargaining process. The prosecutor testified that appellant’s notices of appeal were not the cause of his motion to cumulate. The prosecutor testified that there were many reasons for his motion to cumulate, but was unable to articulate any of them other than that appellant was now seeking to withdraw his plea of guilty subsequent to the motion to cumulate. As stated, the only thing the record reflects as occurring between the pleas and the motion to cumulate was appellant’s pro se notices of appeal. However, at the hearing on the motion to cumulate, appellant testified that subsequent to his notices of appeal he was brought before the court and the court informed him that he could be placing himself in jeopardy by appealing, since the State usually filed a motion to cumulate in such instances. There are no court reporter notes of this interim hearing included in the records before us. However, the testimony of the occurrence by the appellant at the hearing on the motion to cumulate was not disputed nor corrected by the trial court for purposes of the record.

We hold that the appellant was penalized for exercising his statutory right of appeal by the prosecutor’s failure to live up to the State’s part of the plea bargaining agreement. However, the question remains as to what relief should be accorded appellant. He contends that he should be allowed to withdraw both his plea of true and his plea of guilty. We cannot find a basis in the record for allowing the withdrawal of the former. Appellant never moved the court to withdraw his plea of true. Appellant’s motion to withdraw his plea of guilty was exactly that: It related only to the plea of guilty to the indictment for possession of heroin. Appellant was specifically asked at the hearing on the motion to cumulate whether he wished to withdraw his plea of true to the motion to revoke. Appellant replied that he only wished to withdraw his plea of guilty to the indictment.

Under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), we may decide whether the appellant should be allowed to withdraw his plea of guilty or whether the case should be remanded to the trial court for resentencing by a different judge pursuant to specific performance of the agreement that fostered the plea.

We conclude that the appellant should not be allowed to withdraw his plea of guilty. The record reflects that he was carefully admonished of the nature and consequences of his plea, that such plea was voluntarily given and that the stipulation of evidence supporting such plea was voluntarily entered into. The appellant should not be allowed to withdraw his plea of guilty because of the subsequent bare allegation that he didn't understand the nature of the proceedings.

Consequently, the relief that should be accorded should be the alternate relief of remanding for resentencing by a different judge pursuant to specific performance of the prosecutor’s promise. This was also the conclusion reached by the New York appellate court in Santobello after determining the plea to be voluntarily given in its opinion on remand from the U.S. Supreme Court. People v. Santobello, 39 A.D.2d 654, 331 N.Y.S.2d 776 (App.Div.1972).

To remand for resentencing, in accordance with this opinion, would be to require a mere formality. Consequently, the judgment in No. 53,262 is reformed so that sentence in that cause will run concurrently with the sentence in No. 53,261. Art. 44.24(b), V.A.C.C.P. See also, Colburn, supra, at 683.

The judgment in No. 53,261 is affirmed.

As reformed, the judgment in No. 53,262 is affirmed.


author: DOUGLAS, Judge.

text:
    Sandra Elaine CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 53435.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.

      Jerry D. Conner, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Guadalupe Salinas, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

On November 7, 1974, in the 182nd District Court of Harris County, appellant was convicted of the offense of forgery of a credit card. Punishment was assessed at seven years, probated. One of the conditions of the probation was that appellant commit no offense against the laws of the State of Texas or the United States.

On August 20,° 1975, a motion was filed to revoke appellant’s probation on the ground that appellant had committed the offense of carrying a handgun. On December 15, 1975, a hearing was held and the trial court found the allegation in the motion was true and revoked probation. She contends that the trial court abused its discretion in revoking probation because the search which produced the handgun from her purse was illegal. She argues that there was no basis for her arrest as there was no arrest warrant in possession of the officer and that no probable cause existed in that no offense was committed in the officer’s presence.

Steven Knouse, Systems Staff Manager of Manpower, Incorporated, of Houston, testified that appellant was employed by Manpower as a service station manager of the Texaco Station on the corner of Hemp-stead and Bengal Road. She had all the keys to the service station and to the safe. He further related that on July 18,1975, he received information that the station which she was managing was closed and that her whereabouts were unknown. Knouse ordered an audit of the station be conducted and said audit was conducted on Tuesday, July 22. Results of the audit showed that $1405 was missing. On July 24, he located appellant and arranged to meet with her in his office to discuss the missing money and to present her with her final paycheck. Subsequent to making the appointment with appellant, Knouse learned through other employees that she carried a pistol. Rather than risking harm to himself and other office employees when questioning appellant about the missing money, he decided to call the police. He related that the officer to whom he had talked said that it probably would be a good idea if they sent an officer over to his place of business.

Officer Rodriguez of the Houston Police Department testified that he and Officer Krouse had been sent by the dispatcher to the Manpower office to see Knouse in regard to a theft suspect who was allegedly in his office at the time. Upon their arrival they were met by Knouse’s receptionist who showed them into his office. At that time, Knouse related to them the information he had concerning the missing money as well as the fact that he had heard that appellant had a reputation for carrying a gun. He further stated that he wanted to file charges against appellant. Rodriguez further testified that he did not consider getting an arrest warrant, although it would probably have taken him only a short time to have obtained one, because the appellant was in the office at the time and he felt that she would not be there upon their return. Because of the information given to him by Knouse that appellant might be armed, Rodriguez stated that he walked over cautiously to her and that she did not have anything in her hand but she did have a purse beside her leg. When he walked up to her he told her that she was under arrest for felony theft and reached down to grab her purse. At the same time she grabbed for the purse and a short struggle ensued and he was able to get it. After he had picked it up he opened it and found a .32 caliber revolver containing four live rounds of ammunition.

It is well established that circumstances falling short of probable cause for arrest may justify temporary detention for purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of an individual than is an arrest. See Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The Fourth Amendment has been held not to require a policeman who lacks a precise level of information necessary for probable cause to arrest to simply shrug his shoulder and allow crime to occur or a criminal to escape. Adams v. Williams, supra; see also Borner v. State, supra.

In Borner v. State, supra, this Court, quoting from Adams v. Williams, supra, said:

“ ‘The purpose of a limited search after investigatory stop is not to discover evidence of crime, but to allow the peace officer to pursue investigation without fear of violence. So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, the officer may conduct a weapons search limited in scope to the purpose of enabling the officer to pursue investigation without fear of violence. . . . ’ (Emphasis supplied).”

See also Tores v. State, 518 S.W.2d 378 (Tex.Cr.App.1975).

The evidence in the instant case shows that Officer Rodriguez had reason to believe that appellant may have committed a crime. When he informed appellant that she was under arrest for theft she “grabbed for her purse, which was next to her leg, . ” After a brief struggle, he obtained control of the purse and found the pistol therein. Even if the officer had no right to make an arrest without a warrant for theft, he had a right to stop appellant from grabbing her purse because he had been informed that she carried a pistol. He was justified in conducting a weapons search limited in scope to the purpose of enabling him to pursue his investigation without fear of violence or harm to others. See Ablon v. State, supra, and Borner v. State, supra. We hold that under the facts of this case the limited search of appellant was justified. The court properly admitted the pistol obtained as a result thereof.

No abuse of discretion having been shown, the judgment is affirmed.

      . The record reflects that upon revocation appellant’s sentence was reduced from seven years to four years.


author: KEITH, Justice.

text:
    Earl F. GATHERS, Appellant, v. WALPACE COMPANY, INC., et al., Appellees.
    No. 7871.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 14, 1976.
    Rehearing Denied Nov. 4, 1976.
    Rex Woodard, Beaumont, for appellant.
    Tom Lorance, Houston, for appellees.
   KEITH, Justice.

Plaintiff below appeals from an order which sustained the objection of the defendants to the jurisdiction of the court under the provisions of Tex.R.Civ.P. 120a. We affirm for the reasons now to be stated.

Plaintiff’s action was one for personal injuries and maintenance and care and he alleged that the trial court had jurisdiction under the provisions of the Jones Act, Title 46, U.S.C.A. § 688. He alleged only that he was “a resident of the United States’’ but there are no allegations in the petition which enlarge upon that bare statement. He alleged that while he was a seaman and a member of the crew of the Trawler GULF JETT in international waters, he sustained accidental injuries in the scope of his employment for which he sought damages, etc.

According to plaintiff’s allegations, the two defendants were incorporated under the laws of some state other than Texas and he listed their addresses as being in the State of Florida. In the most general language, he alleged that each defendant was amenable to process served upon the Secretary of State of the State of Texas under the provisions of Tex.Rev.Civ.Stat.Ann. art. 2031b (1964).

He did not, however, make any mention of the fact that the cause of action which he asserted arose from or was in any manner connected with defendants’ purposeful acts in this state. In O’Brien v. Lanpar Company, 399 S.W.2d 340, 342 (Tex.1966), the Court quoted from an out of state opinion saying that there were “three basic factors which should coincide if jurisdiction over a nonresident corporation is to be entertained:

“ ‘ * * * Such would appear to be: (1) The non-resident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice . . ” (emphasis supplied)

See also, A. Thomas, Jr., “Conflict of Laws”, 29 Sw.L.J. 244, 248 (1975), where additional cases are considered.

In Frye v. Ross Aviation, Inc., 523 S.W.2d 500, 502 (Tex.Civ.App. — Amarillo 1975, no writ), the court quoted the foregoing language from O'Brien, cited two lower federal court opinions, and held:

“Here the defendant’s activities in Texas did not give rise to, and in fact bear no relation to, the cause of action. Thus, Texas courts do not have jurisdiction of Ross Aviation.”

So holding, the court dismissed the cause for want of jurisdiction. Id. at 503.

Plaintiff in the case at bar failed to allege the existence of all of the conditions which, under Art. 2031b, are a prerequisite to the acquisition of in personam jurisdiction by substituted service. See McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965), where the Court held:

“The provisions of Article 2031b are clear, and plaintiff has the burden of making sufficient allegations to bring the defendant within its provisions.”

Likewise, in Whitney v. L & L Realty Corporation, 500 S.W.2d 94, 95 (Tex.1973), the Court said that, in order to support a default judgment upon substituted service as against a direct attack through writ of error proceedings:

“The pleadings must allege facts which, if true, would make the defendant responsible to answer, — or in the language of Rule 120a, contain allegations making the defendant ‘amenable to process’ by the use of the long-arm statute; . .”

Accord: Day-Bright Lighting Div. v. Texas Metalsmith, Inc., 499 S.W.2d 336, 337 (Tex.Civ.App. — Dallas 1973, no writ); Security Savings and Loan Association v. Ward, 444 S.W.2d 366, 367 (Tex.Civ.App. — El Paso 1968, no writ); but, cf. Collins v. Mize, 447 S.W.2d 674, 675 (Tex.1969).

Plaintiff contends, and correctly so, that the burden was upon the defendant filing the special appearance under Tex.R. Civ.P. 120a of producing evidence to show lack of amenability to the long arm process. Professor Thode in his excellent article “Special Appearance”, 42 Texas L.Rev. 279, 319 (1964), says:

“The language of the rule clearly places on the defendant the burden of pleading lack of jurisdiction. Although not spelled out as specifically as might be desired, the burden of producing evidence and the burden of persuasion are both on the defendant.”

The author’s footnote 220, following the foregoing, is reproduced here:

“More accurately, in this situation the defendant loses his motion to the jurisdiction if no evidence is produced on the issue of jurisdiction, or if evidence is produced, the defendant loses if he fails to persuade the trier of fact that the preponderance of the evidence is with him on the fact issues. 1 McCormick & Ray, Texas Evidence, § 41 — 45 (2d ed. 1956).”

Fortunately, the Texas cases have followed the view of the author. See, e. g., Law, Snakard, Brown & Gambill v. Brunette, 509 S.W.2d 671, 675 (Tex.Civ.App. — Beaumont 1974, writ ref’d n. r. e), and authorities therein cited.

However, we do not find such rule to be applicable to the case at bar where the plaintiff has failed to plead facts authorizing the issuance of process under the long arm statute. Professor Thode, in the article cited earlier, went into the question in detail, finally concluding:

“The problem of the proper interpretation of article 2031b is not an easy one, but as demonstrated above a reasonable and procedurally sound argument can be made for not requiring the establishment of a cause of action as a jurisdictional fact. The pleading of a tort arising in whole or in part out of contacts within the state should be sufficient. Article 2031b should be interpreted to require that the contacts, and not the merits of the cause of action, are at issue in the jurisdictional hearing.” (42 Texas L.Rev. at 326, emphasis supplied)

Since plaintiff failed to include in his petition all of the jurisdictional requirements for use of Art. 2031b, the trial court properly sustained defendants’ objections to the jurisdiction of the court over the persons of said defendants.

Having considered each of plaintiff’s points of error and finding no merit therein, the judgment of the trial court is affirmed.

      . Plaintiff alleged as to each defendant: “. . such defendant does business in the State of Texas from time to time, but it does not have a designated agent for service of citation nor does it maintain a regular place of business in the State of Texas and, therefore, its agent for service of citation is the Secretary of State of the State of Texas under the provisions of Article 2031b of the Texas Civil Statutes.”


author: COLEMAN, Chief Justice.

text:
    MGJ CORPORATION, Appellant, v. The CITY OF HOUSTON, Appellee.
    No. 16744.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 21, 1976.
    Rehearing Denied Nov. 18, 1976.

      Charles D. Kipple, Houston, Saccomanno, Clegg, Martin & Kipple, Houston, of counsel, for appellant.
    Jonathan Day, City Atty., Fred R. Spence, Senior Asst. City Atty., Houston, for appellee.
   ON MOTION FOR REHEARING

COLEMAN, Chief Justice.

The MGJ Corporation has presented a motion for rehearing in the captioned case which we find meritorious. The motion is therefore granted and the opinion handed down on September 2, 1976, is withdrawn, and this opinion substituted.

This is an appeal from an order denying an application for a temporary injunction. The judgment will be reversed.

Appellant, MGJ Corporation, owns the Santa Rosa Theater located on Lot 2 of the Santa Rosa Community Center, a Subdivision in Harris County, Texas. The City of Houston has located a police substation on certain property which it owns out of Lot 1 of said Subdivision. Adjacent to both properties is a 3-acre tract of land shown on the plat of said Subdivision as “private parking lot.” The Santa Rosa Community Center was platted on property owned by W. R. Parker and others, hereinafter referred to as Parker Brothers, and is located at the intersection of Telephone Road and Park Place Boulevard. The plat of the community center was filed for record on August 18, 1945, and a replat was subsequently filed in May 1946. This community center was a part of a larger subdivision, and the property was subject to certain restrictions filed of record in 1941. These restrictions provided that the property which was subsequently platted as the Santa Rosa Community Center could be used only for certain business enterprises.

In 1945 the Parkers conveyed a lot to Interstate Circuit, Inc. which was subsequently replatted as Lot 2 of the Santa Rosa Community Center. This deed stated that as part of the consideration for the sale, a certain 2.75 acre tract “shall be set aside and used as a parking area, such parking area to be used exclusively by the grantee hereih, its successors and assigns and other purchasers and their tenants of property located within said Community Center; provided, however, in the event a bowling alley is established and maintained within said Community Center, the patrons of same shall be restricted against the use of said parking area.” The original plat of the Santa Rosa Community Center shows a 2.75 acre tract labelled “Reserved as private property for parking area” adjacent to the property purchased by the Interstate Circuit, Inc. This same area appears on the resubdivision plat under the designation ' “private parking lot” expanded to include 3.1173 acres.

On October 19, 1946, the Parkers conveyed a portion of Lot 1, Block 9, Santa Rosa Community Center, to Joe Weingarten and others. Subsequently the remainder of this lot was conveyed to J. Weingarten, Inc. by the Parkers. Subsequently conveyances placed title to the entire lot in J. Weingar-ten, Inc. This property consisted of all of the community center north of the private parking lot and bordering on both Park Place Boulevard and Telephone Road. It adjoined the Santa Rosa Theater property. Neither of the conveyances by which this property was acquired by Weingarten contained a grant of an easement for use of the private parking lot.

Subsequently J. Weingarten, Inc. conveyed the northwest 200 by 240 feet of said Lot 1 to the Odd Fellows Hall Association. In this conveyance an easement for ingress and egress was created over the north 110 feet by 200 feet of the retained property for the benefit of the Odd Fellows Hall Association and the remaining property owned by J. Weingarten, Inc. Thereafter by two conveyances the City of Houston acquired a portion of Lot 1, Block 9 measuring 175 feet along Park Place Boulevard with a depth of 240 feet from J. Weingarten, Inc.; the first of these conveyances was dated March 26, 1959. At some date not shown by the record a fence was erected dividing the property owned by the City of Houston from the parking lot area.

In May 1973 the MGJ Corporation acquired Lot 2 from the Interstate Circuit, Inc. A theater had been erected and was operated on Lot 2 by Interstate Circuit, and the parking lot was used by its patrons. MGJ Corporation has continued to operate the theater and its patrons continue to use the parking lot. The City of Houston built a police substation on the property which it acquired in the community center and began using it as such some thirteen years prior to the date of trial. There is testimony that the officers assigned to that station use the parking lot to park their private cars and on occasion police cars were parked on the parking lot. In January 1976 an opening was made in the fence separating the police station property from the parking lot area and large numbers of marked police cars were parked on the lot on a regular basis. There is testimony that the management of the theater received complaints from its patrons that they were unable to park in the parking lot and that they were having to park a distance from the theater. There is testimony that the parking of the marked police cars on the lot has hurt the business of the theater. The testimony is conflicting as to whether the parking lot is adequate in size to handle the parking needs of the theater and of the police station at peak use periods.

A trial court has broad discretion in determining whether to grant or to deny a temporary injunction. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). Where the only relief sought on final trial is a permanent injunction, the applicant must show a probable right on final hearing to the permanent injunction and a probable injury in the interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex.1968). An erroneous application of the law to undisputed facts will constitute an abuse of discretion. City of Spring Valley v. Southwestern Bell Telephone Co., 484 S.W.2d 579 (Tex.1972). A temporary injunction will not be granted when the evidence raises material disputed issues of fact. Dallas Independent School District v. Daniel, 323 S.W.2d 639 (Tex.Civ.App. — Dallas 1959, writ ref’d n.r.e.); Scurry Area Canyon Reef Operators Corp. v. Popnoe, 283 S.W.2d 819 (Tex.Civ.App. — Eastland 1955, no writ).

The owner of an exclusive easement is the dominant tenant and is entitled to the free and undisturbed use of its property for the purposes of the easement even as against the owner of the fee. Gulf View Courts, Inc. v. Galveston County, 150 S.W.2d 872 (Tex.Civ.App. — Galveston 1941, writ ref’d). Where the language of the deed is doubtful it will be construed to confer on the grantee the greatest estate permissible under the instrument. Gulf View Courts v. Galveston County, supra.

Easements appurtenant are interests in land which require a writing to create or transfer. There are some exceptions to the rule: dedication, implied easements appurtenant, and easements by es-toppel in pais. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962). There cannot be a private dedication or a dedication to a limited number of persons. Drye v. Eagle Rock Ranch, Inc., supra.

No evidence was produced in this case to establish that the City is entitled to use the easement in question by reason of dedication, implied easement appurtenant, or by reason of an easement by estoppel in pais. Drye v. Eagle Rock Ranch, Inc., supra. The question then arises whether an easement appurtenant to the land now owned by the City was created by the deed from the Parkers to Interstate Circuits, Inc.

In Drye there was a contest between the grantees of various lots in a subdivision against their grantor to establish an easement for recreational use over lands retained by the grantor. No easements were granted in the deeds to any of the lot owners. There was a contention that such an easement was necessarily implied, but this contention was rejected by the court. In Drye the court pointed out:

“For there to be an easement appurtenant, either expressed in writing or implied, there must be a dominant estate and a servient estate. The easement attaches to the land of the dominant estate and not merely for the corivenience of the owner thereof independent of the use of his land. The servient estate is subject to the use of the dominant estate to the extent of the easement granted or reserved . . . ”

A reservation or exception in favor of a stranger to a conveyance is inoperative and cannot operate as a conveyance to the stranger of an interest in land. Joiner v. Sullivan, 260 S.W.2d 439 (Tex.Civ.App.— Texarkana 1953, writ ref’d). Title to the servient estate in the “private parking lot” and the remainder of Lot 1 in the Santa Rosa Community Center is shown to be in Parker Brothers & Company, Inc. The City of Houston has shown no right to use the parking lot derived from Interstate Circuit, Inc., and no such right was granted to a predecessor in title by Parker Brothers & Company, Inc.; it has no right to make use of the parking lot and may be barred from making use thereof by the owner of a nonexclusive easement. Ladies’ Benevolent Society of Beaumont v. Magnolia Cemetery Co., 288 S.W. 812 (Comm.App. of Texas, Sec. A, 1926).

The provision in the deed from the Parkers to Interstate Circuit, Inc. that a 2.75 acre tract “shall be set aside and used as a parking area, such parking area to be used exclusively by the Grantee herein, its successors and assigns, and other purchasers and their tenants of property located within said Community Center.” did not create an easement in favor of the land adjacent to the parking lot title to which the Parkers retained. It is essential to the creation of an easement appurtenant that there be a dominant estate and a servient estate in tracts of land owned separately by two or more individuals. Fleming v. Adams, 392 S.W.2d 491 (Tex.Civ.App. — Houston 1965, ref’d n.r.e.).

Since neither the City nor its predecessor in title was a party to the deed by which the Parkers conveyed the easement in question to Interstate Circuit, Inc. it is a stranger to the deed and may not invoke the doctrine of estoppel to enforce the provision purporting to grant the right to use the parking area to “other purchasers and their tenants” of property located within said community center. Cone v. Cone, 266 S.W.2d 480 (Tex.Civ.App. — Amarillo 1953, writ dism’d at 266 S.W.2d 860).

Since the City has no valid claim of right to use the parking area jointly with the plaintiff, it is in the position of a trespasser. It is well settled that an injunction is a proper remedy to restrain repeated or continuing trespasses where the remedy at law is inadequate because of the nature of the injury, or the necessity for multiplicity of actions to obtain redress. Boiles v. City of Abilene, 276 S.W.2d 922 (Tex.Civ.App.— Eastland 1955, writ ref’d).

Since this is an appeal from the denial of a temporary injunction, this court must determine whether or not the trial court abused its discretion by such refusal. The trial court must be held to have abused its discretion when it fails or refuses to apply the law to conceded or undisputed facts. Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935).

In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

In discussing the discretionary authority of a trial court in acting upon an application for a temporary injunction in General Telephone Co. v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385 (1956), the court said:

“However, this judicial rule by its very terms is one which can have clear meaning only as it has been actually applied to particular states of fact, and this is particularly so in the light of art. 4662, Vernon’s Tex.Civ.Stats.Ann., which expressly, and in the broadest terms, guarantees the right of appellate review of both the refusal and granting of temporary injunctions. Usually, at least, the area of discretion is one involving either a matter of deciding the facts upon conflicting evidence or one of judgment about imponderables, such as future facts, or the balancing of equities.”

We conclude that the trial court abused its discretion. The record leaves no room for a discretionary error as to the petitioner’s chances of final success. It is established without dispute that the City has been guilty of a series of trespasses on the land wherein the petitioner has an easement for parking, and that petitioner has suffered at least minor interference with the use of its easement by reason of the trespasses. The trial court erroneously applied the law to the undisputed facts. General Telephone Company v. City of Wellington, supra.

It follows that the temporary injunction should have been granted as prayed for. The judgment of the trial court is, therefore, reversed and the cause is remanded to the trial court for entry of judgment accordingly.


author: STEPHENSON, Justice.

text:
    SOUTHERN UNION GAS CO., Appellant, v. CITY OF PORT NECHES et al., Appellees.
    No. 7911.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 29, 1976.
    Rehearing Denied Dec. 9, 1976.

      Robert Q. Keith, Beaumont, for appellant.
    H. P. Wright, Port Neches, Earl Black, George Wicoff, Jon Burmeister, -Port Arthur, W. E. Sanderson, Nederland, for ap-pellees.
   STEPHENSON, Justice.

This is an appeal from an order granting a temporary injunction. Defendant, Southern Union Gas Company, was enjoined from charging gas rates in excess of those which were made effective October 31, 1975. Plaintiffs are City of Port Neches and five other cities in middle and south Jefferson County.

In June or July of 1974, all six cities adopted ordinances setting gas rates for residential and commercial customers and adopting by reference defendant’s supply agreement dated December 17, 1971, with its wholesale supplier, Pennzoil Pipeline Company (now United Texas Transmission Company). That supply agreement provided for a single annual adjustment in the cost of gas. The city ordinances contain a “flow through” provision, that if there is an increase in the rate defendant was to pay its supplier, such increase could be passed on by defendant to its customers.

In 1975 defendant and United Texas agreed between themselves to amend the 1971 supply agreement to provide for two annual adjustments in the cost of gas rather than a single annual adjustment. That amended agreement was submitted to the Texas Railroad Commission for its approval which had a hearing in September 1975. In October 1975 new rates were passed on by defendant to its customers in these cities about which there is no complaint.

In January 1976 the Railroad Commission issued an interim order allowing United Texas to pass on to defendant a rate increase which had been assessed to United Texas by its supplier, Lo-Vaca. Such interim order does not specifically provide for defendant to pass on the rate increase to its customers.

In March 1976 and again in August 1976 defendant increased the cost of gas to its customers in these cities and this petition for a temporary injunction was filed.

The crux of the position taken by the cities is that their ordinances adopted the 1971 supply agreement, which provided for annual adjustments, and that defendant could not, merely by getting an agreement with its supplier to provide for two annual adjustments, alter defendant’s position with the cities, even though the Railroad Commission approved with its interim order.

In oral .argument it was stated by counsel for the two cities making argument that if the rate increases had been made in October 1976 they would not be before this court.

Defendant has a point of error challenging the jurisdiction of the trial court to hear this matter. Defendant concedes that as an original proposition consumer rates for gas utility services are a legislative function of the local municipalities with an appeal from the City Council to the Railroad Commission and ultimately to the District Court of Travis County. The consumer rate is also sometimes referred to as the “burner tip rate.” On the other hand the rates charged by the producers, transporters and suppliers of natural gas are regulated by the Railroad Commission. Those rates are sometimes referred to as “gate rates.”

However, defendant argues that the Railroad Commission was charged with approving or disapproving the contract amendment mentioned, that is changing the adjustment provisions from annually to twice annually. From that premise defendant reaches the conclusion that inasmuch as that question was pending before the Railroad Commission, it has sole jurisdiction to determine the issues. We disagree.

Even though the rates being charged the customers in the cities are indirectly affected, the primary issue raised in this litigation is one in contract. Could defendant change the rate adjustment from annually to twice annually without violating the terms of the franchise ordinances adopted by the cities? That subject matter is not one exclusively within the jurisdiction of the Railroad Commission, so as to preclude the trial court in the case before us from making a determination of that legal question when the case is heard on the merits.

We have not been cited, nor have we found, a case passing directly upon the question before us. Under Tex.Rev.Civ.Stat.Ann. art. 6058 (1962), if these cities had no “flow through” provision in their ordinances, defendant would have been required to make an application for a rate increase with each city. The Railroad Commission had appellate jurisdiction if the increase was refused. We also think it is clear that art. 6054 (1962) giving the Railroad Commission the right to review and regulate all orders and agreements of any company controlling a pipeline in the establishment of prices, rates, and regulations, did not refer to orders and agreements with cities such as we have before us. See Humble Oil & Refining Co. v. Railroad Commission, 133 Tex. 330, 128 S.W.2d 9 (1939). Railroad Commission v. United Gas Pipe Line Co., 358 S.W.2d 907 (Tex.Civ.App.— Austin 1962, writ ref’d, n.r.e.).

As stated above, the question is not the usual one as to whether or not the rate which the gas company has proposed to charge is reasonable under the “High Plains Test.” The question is simply whether defendant can unilaterally change the supply agreement to a semi-annual rate adjustment. We hold that question is one that the trial court had jurisdiction to determine. See Crystal City v. Lo-Vaca Gathering Co., 535 S.W.2d 722 (Tex.Civ.App. — Texarkana 1976, no writ).

Defendant then contends that the trial court should not have granted the temporary injunction because there was no showing of irreparable damage or that there was no adequate legal remedy. We disagree.

When we come to consider the adequacy of the legal remedy of the cities, we are guided by the holdings of our courts that an adequate remedy at law preventing relief by injunction means a remedy which is plain and complete, and as practical and efficient to the ends of justice and its prompt administration as a remedy in equity. Hancock v. Bradshaw, 350 S.W.2d 955 (Tex.Civ.App. — Amarillo 1961, no writ). We find this quotation in Brazos R. Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842, 846 (1943):

“ ‘It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.’ ”

The fact that the Railroad Commission may eventually order defendant’s supplier — and defendant — to refund any excess charges collected under its interim order is not dispositive of the question. The possibility of a refund simply suggests the existence of another remedy which might have been considered by the court in fashioning the appropriate decree; it did not require its selection to the exclusion of all other remedies. Then, too, the possibility of a refund is not as practical and efficient as the injunctive relief granted.

The Supreme Court of Texas has settled the issues which this court must determine on this appeal in Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183, 191-192 (Tex.1964) as follows:

“The only ultimate question before the Court of Civil Appeals and before this Court is whether the trial court abused its discretion in granting a temporary injunction . . .. There was no abuse of discretion in the issuance of the writ if Haulers pleaded and offered evidence tending to prove a cause of action, that is, a probable right to a permanent injunction and a probable injury.” (citing cases)

We do not find that the trial court abused its discretion in granting the temporary injunction which preserved the status quo pending trial on the merits. There are substantial questions, both of law and fact, which the judge in his discretion could properly reserve until full development of the facts and the law at a plenary trial on the merits. Decision of these questions on this interlocutory appeal would be premature. The ultimate rights of the parties should not be determined on an appeal from an interlocutory order. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417, 421 (1959); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553 (1953); Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684 (Tex.Civ.App.—Dallas, 1976).

After defendant had perfected its appeal from the order granting the temporary injunction, it filed its motion to dissolve the injunction as to the City of Port Arthur contending that since the city had repealed the “pass-through” provisions of its ordinance involved in this case, the case was moot as to that city. It attached a certified copy of the ordinance of the City of Port Arthur which disclosed that the “pass-through” provisions were actually repealed. We carried the motion along with the case and requested briefs from the parties.

The case is not moot as to the City of Port Arthur. We overrule defendant’s motion to reverse the trial court’s judgment granting their injunction, as it related to the City of Port Arthur.

The defendant has not suggested that the repeal of the “pass-through” cost adjustment clause is illegal. Consequently, in the absence of such a clause, the trial court will have no occasion to consider the validity thereof as to any rate adjustments attempted to be made after the repeal of the clause. As to Port Arthur, the only issue which will be determined by the trial court will be the validity of any attempted “pass-through” cost adjustments subsequent to October 31, 1975 and prior to the date of the repeal of the “pass-through” clause.

The temporary injunction which was granted and which we have affirmed does not prohibit the defendant from seeking an increased rate, or re-instatement of the “pass-through” clause in any forum having jurisdiction over the parties and the subject matter, whether the respective city councils, the courts, or the Railroad Commission; and, any such action shall not be deemed to be a violation of the injunction of the trial court.

AFFIRMED.


author: McKAY, Justice.

text:
    Stephen L. ROSENTHAL et al., Appellants, v. LEASEWAY OF TEXAS, INC., Appellee.
    No. 968.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 18, 1976.
    Philip I. Palmer, Jr., Palmer, Palmer & Coffee, Dallas, for appellants.
    Raymond B. McCoy, Dallas, for appellee.
   McKAY, Justice.

This suit arose because Pollution Solutions, Inc. (Pollution) failed to pay vehicle lease rentals to appellee, Leaseway of Texas, Inc. (Leaseway), in the amount of $22,-322.05. The nature and amount of the debt was admitted by Pollution. Judgment was rendered by the trial court (without a jury) against Pollution and against Stephen L. Rosenthal, individually, and Metroplex Sanitation, Inc. (Metroplex) for the amount prayed for. Pollution did not appeal; Ro-senthal and Metroplex bring this appeal.

Appellants Rosenthal and Metroplex submit three points of error, but the controversy centers upon the right of Leaseway to take judgment against Rosenthal and Me-troplex for the debt of Pollution. Lease-way alleged that Pollution was incorporated on January 5, 1973, by Rosenthal as his alter ego for the purpose of the collection, treatment and disposal of waste materials, and that Pollution never had any genuine or separate corporate existence, but was used and existed for the sole purpose of permitting Rcsenthal to transact his individual business under a corporate guise. Leaseway further alleged that Rosenthal, acting through his alter ego, Pollution, negotiated and contracted for the vehicle lease, and that by reason of such acts Ro-senthal, individually, became liable for the debt of Pollution.

Leaseway also alleged that Rosenthal on or about August 14, 1973, incorporated and organized Metroplex as his alter ego with the same purpose as Pollution and that Metroplex never had any genuine or separate corporate existence, but had been used for the sole purpose of permitting Rosen-thal, individually, “to transact his individual business under a corporate guise.” Rosen-thal, Pollution and Metroplex answered with general denials.

The record reveals that Rosenthal financed the formation of the corporation Pollution at a cost of $1,000.00 and that 50,000 shares of no par value were authorized. No bylaws were ever adopted. There was never an election of directors. Rosen-thal served as president from the inception of Pollution and received $15,000 in compensation. No shares of stock in the corporation were ever issued. Pollution did not maintain a share certificate or share register book. There has never been a meeting of the board of directors since incorporation. No corporate minute book was ever provided. No meeting of stockholders was ever held. Pollution engaged in the business of collection, treatment and disposal of solid waste materials by delivering same to a land fill in Hugo, Oklahoma, from February, 1973, through November, 1973, but ceased such business when prevented from using the land fill at Hugo. There was no stated capital, and the corporation did not maintain financial books and records and never prepared a financial statement. A bank account was maintained in the corporate name and Rosenthal was authorized to withdraw funds. There were no profits, and net losses exceeded $50,000. Pollution never paid a franchise tax to the State and never filed a Federal income tax return.

There are no findings of fact and'conclusions of law in the record. However, the facts are not in dispute on the material issue — whether a creditor may pierce the corporate veil under the evidence as shown by this record.

The general rule in Texas as pronounced by Judge Calvert in Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 351 (1955), is:

“Courts will not disregard the corporate fiction and hold individual officers, directors or stockholders liable on the obligations of a corporation except where it appears that the individuals are using the corporate entity as a sham to perpetrate a fraud, to avoid personal liability, avoid the effect of a statute, or in a few other exceptional situations.”

This principle is reaffirmed in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex.1963), and in Bell Oil & Gas Co. v. Allied Chemical Corp., 431 S.W.2d 336, 340 (Tex.1968), and many other cases.

The above rule was followed but stated differently in Minchen v. Van Trease, 425 S.W.2d 435, 437 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n. r. e.). The Court in Minchen said the reasons for disregarding the corporate entity are “when the corporation is used to perpetrate a fraud, to evade an existing legal obligation, to achieve or perpetrate a monopoly, to protect a crime, to justify a wrong, to circumvent a statute, and when one corporation exists as a mere tool or business conduit of another corporation.” It is noted that Pace Corporation v. Jackson, supra, uses the language, “to avoid personal liability,” while the Minchen case says, “to evade an existing liability.”

Leaseway plead that Pollution never had any genuine separate corporate existence and existed for the sole purpose of permitting Rosenthal to transact his individual business under a corporate guise as his alter ego, and that Pollution existed merely as a device to escape legal obligations and that the corporate entity should be disregarded and Rosenthal held personally liable for Pollution’s debt.

The Texas Business Corporation Act provides in Art. 2.23 that, “The initial bylaws of a corporation shall be adopted by its board of directors. . . . Art. 2.24 provides, “An annual meeting of the shareholders shall be held at such time as may be stated in or fixed in accordance with the bylaws”; Art. 2.31 provides, “The business and affairs of a corporation shall be managed by a board of directors”; and Art. 2.32 provides, “The number of directors shall be fixed by, or in the manner provided in, the articles of incorporation or the bylaws . ”; Art. 2.37 provides for the meeting of the board of directors; Art. 2.42 provides that, “The officers of a corporation shall consist of a president, one or more vice-presidents as may be prescribed by the bylaws, a secretary, and a treasurer, each of whom shall be elected by the board of directors . . .” and “that the president and secretary shall not be the same person”; and Art. 2.44 provides, “Each corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and board of directors . . .” (Emphasis added.)

The language of the above listed articles in the Texas Business Corporation Act is mandatory, and the record reveals that Pollution and its owner Rosenthal did not comply with any of these requirements. The only action taken to constitute Pollution as a corporation was the obtaining of a charter. It appears from the record that Rosen-thal treated the corporation as his alter ego. He was the sole owner, and Pollution did not exist except as the shadow of Rosen-thal. Pollution was a sham corporation.

In Sargent v. Highlite Broadcasting Co., 466 S.W.2d 866, 868 (Tex.Civ.App. — Austin 1971, no writ), it is stated:

“A person who operates a corporation as a sham, treats the corporation as his alter ego, or treats the corporation in such a way so that the identity of interest and ownership between an individual and the corporation is such that the action of one can be said to be the action of the other, can be prevented from taking advantage of corporate defenses if this corporate form is being used or will be used to achieve an inequitable result. American Petroleum Exchange, Inc. v. Lord, 399 S.W.2d 213 (Tex.Civ.App. — Ft. Worth 1966, writ ref’d n. r. e.); Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340 (1955).”

An exception to the general rule forbidding the disregard of corporate entity “is not to be applied unless it is made to appear that there is such unity that the separateness of the corporation has ceased and ‘the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.’ ” First National Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100, 103 (Tex.Com.App.1939, opinion adopted).

While each case involving disregard of the corporate entity must rest upon its own special facts, this court said in Holmes v. Clow, 533 S.W.2d 99, 101, 102 (Tex.Civ.App.1976, no writ):

“In order to warrant piercing the corporate veil, the courts generally require the presence of one or more of the following factual situations: (1) evidence that the corporate entity amounts to a fraud, promotes injustice or it is relied on to justify a wrong, (2) that it was inadequately capitalized, (3) that an individual controls and manages the entity in such a manner that it becomes his alter ego, and (4) that the corporate formalities were not adhered to by the corporation.”

Writing on the alter ego doctrine the court in Auer v. Frank, 227 Cal.App.2d 396, 38 Cal.Rptr. 684, 8 A.L.R.3d 1108, 1118 (1964) stated:

“The two basic requirements for the application of this doctrine are: (1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow.”

We are of the opinion that under the record here, situations (3) and (4) as set out in Holmes v. Clow, supra, are adequately shown to exist. Rosenthal organized, controlled and managed the corporation in such a manner that it became his alter ego, and the corporate formalities mandated by statute were ignored. And as set out in Auer v. Frank, supra, a requirement to pierce the corporate veil was met inasmuch as there was such unity of interest and ownership between Rosenthal and Pollution shown by the record that their separate personalities no longer existed, and if Rosenthal’s acts were to be treated as those of Pollution an inequitable result would follow.

Rosenthal argues that there is no fraud shown in the record and no fraudulent transfer of assets and that adequacy of capitalization is not an issue. We believe the record amply demonstrates that Pollution was the alter ego of Rosenthal whether fraud was shown. However, Leaseway had no relationship with Metroplex, and we hold that Leaseway cannot attack the corporate existence of Metroplex. The only evidence attempting to show Metroplex liable was that some of the trucks Pollution leased from Leaseway were used by Metroplex for some period of time.

The record indicates that both Pollution and Metroplex are insolvent and no longer exist as business organizations or corporations.

Findings of fact and conclusions of law were requested but none were filed, and no complaint is made on appeal of the trial court’s failure to prepare and file them. In that state of the record the judgment of the trial court should be affirmed if it can be upheld on any legal theory that has support in the evidence, Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962), and we must presume that every fact issue and such implied findings as were necessary were found by the trial court in support of the judgment rendered. Morris v. Texas Elks Crippled Children’s Hospital, Inc., 525 S.W.2d 874, 881 (Tex.Civ.App. — El Paso 1975, no. writ); Washington v. Law, 519 S.W.2d 953, 954 (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref’d n. r. e.).

The judgment of the trial court is affirmed against Rosenthal; and as against Metroplex, the judgment is reversed and rendered that Leaseway take nothing.


author: ROBINSON, Justice.

text:
    Ruth C. COPELAND, Appellant, v. George W. COPELAND, Appellee.
    No. 8699.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 22, 1976.

      Phelan & Phelan, Harold Phelan, Level-land, for appellant.
    Allison & Davis, Andrew J. Kupper, Jr., Levelland, for appellee.
   ROBINSON, Justice.

The respondent-wife appeals from the portion of a divorce judgment which finds that disability retirement benefits earned by the husband as an employee of General Motors during the marriage and being paid at the time of the divorce are the separate property of petitioner-husband. Reversed and remanded.

Petitioner-husband testified that he had worked for General Motors for almost 16 years; that he was married to respondent-wife when he went to work for General Motors and still married to her at the time he retired; that he was receiving disability retirement from General Motors at the time of the trial. With regard to his disability he testified as follows:

“I had a back — well, in 1968 I had a heart attack. In 1971 I got my back hurt. In 1972 I had a back operation and things rolled along and then I had to have a stomach operation. Forty-five percent of my stomach is removed, and I have not been able to work since.”

Mr. Copeland testified that he was totally and permanently disabled and that he is drawing his disability pension from General Motors because of injuries inflicted on his body in the course of his employment. With regard to the nature of the retirement disability pension itself he testified that it is based on his prior earnings, and the number of years with the company, and that the amount of the payments was in part dependent on the amount of social security benefits which he received.

The trial court found that this General Motors disability retirement was the separate property of the husband and pursuant to that finding awarded the entire disability retirement to him in the divorce decree. Appellant wife contends that the General Motors disability retirement is the community property of the spouses.

The exact nature of the General Motors retirement program and the circumstances under which disability retirement is to be paid are not spelled out in the record. Nevertheless, the evidence shows without dispute that the right to disability retirement was not an award of damages for personal injury but is an earned property right, earned by the husband as a result of his employment with General Motors and earned during the marriage of the parties. The right to retirement pay fully vested and entirely accrued during the marriage. Thus, the entire disability retirement pay is community property. See Busby v. Busby, 457 S.W.2d 551 (Tex.1970). Marshall v. Marshall, 511 S.W.2d 72 (Tex.Civ.App.— Houston [1st Dist.] 1974, no writ); Dominey v. Dominey, 481 S.W.2d 473 (Tex.Civ.App.— El Paso 1972), cert. denied 409 U.S. 1028, 93 S.Ct. 462, 34 L.Ed.2d 321 (1972).

Ramsey v. Ramsey, 474 S.W.2d 939 (Tex.Civ.App. — Eastland 1971, writ dism’d), cited by appellee husband and holding that an award of compensation by the Veterans’ Administration for service-connected disability is separate property, does not control the case before us. The court in Ramsey expressly distinguished such an award from an earned property right, stating:

“In the instant case the payment to Ramsey was not an earned property right which accrued to him by reason of his years of service in military service, but was for personal injury or disease to him for service-connected disability. There was no obligation or promise by the Veterans’ Administration to remunerate Ramsey for his service-connected disabilities. In determining the nature of such an award by the Veterans’ Administration it is provided by Title 38 U.S.C. § 211(a) as follows:
‘Except as provided * * * the decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.’
“It is therefore apparent that the compensation to Frank Ramsey here involved is a payment personal to him from the government for service-connected injury or disease sustained in the military service and is not the result of an earned property right.”

The portion of the statement of facts before us is limited to “a Narrative Transcript of the testimony of George W. Copeland and Ruth C. Copeland, relating, in any way to petitioner’s disability, personal injury, retirement, and employment with General Motors Corporation.” From the portion of the testimony before us, we are unable to say whether the trial court would err in awarding the entire community General Motors disability retirement to the petitioner-husband and we make no holding in that respect. Upon dissolution of the marriage, the trial court is not required to divide the estate of the parties equally. The court is vested with broad discretion in arriving at a just and right division in consideration of such factors as the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate, and the relative abilities of the parties. Hedtke v. Hedtke, 112 Tex. 404,248 S.W. 21 (1923); Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App. — Tyler 1974, no writ). It is, however, apparent that the trial court exercised its discretion in dividing the estate of the parties pursuant to its finding that the General Motors retirement was the separate property of the husband. This cause therefore must be remanded to the trial court so that it may exercise its discretion in making an appropriate award of the General Motors disability retirement pay considering that the retirement pay is the community property of the spouses and after consideration of all appropriate circumstances.

The portion of the judgment awarding the disability retirement benefits to petitioner George W. Copeland as his separate property is reversed and the cause remanded to the trial court.


text:
    Harold HODGES, Appellant, v. STAR LUMBER & HARDWARE COMPANY, INC., Appellee.
    No. 8660.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 22, 1976.

      McWhorter, Cobb & Johnson (Jack P. Driskill), Lubbock, Kenneth A. Back, Amarillo, for appellant.
    V. G. Kolius, Amarillo, for appellee.
   ROBINSON, Justice.

In this suit for deficiency after sale under a deed of trust securing a promissory note, the trial court rendered judgment for plaintiff-holder which included attorney’s fees of 10% of the amount due on the note at the time it was referred to the attorney for collection and before the sale under the deed of trust. Defendant-maker appeals. The judgment of the trial court is modified to allow recovery of attorney’s fees only on the deficiency after the sale and, as modified, is affirmed.

Defendant Harold Hodges gave plaintiff Star Lumber & Hardware Company, Inc., his note in the principal amount of $24,-812.93 bearing interest of 8½% per annum and payable in 180 days. The note contained an attorney’s fee provision as follows:

. in the event default is made in the prompt payment of this note when due or declared due, and the same is placed in the hands of an attorney for collection, or suit is brought on same, or the same is collected through Probate, Bankruptcy or other judicial proceedings, then the makers agree and promise to pay ten percent (10%) additional on the amount of principal and interest then owing, as attorney’s fees.

The note was secured by a deed of trust on certain property belonging to defendant. The deed of trust was not offered in evidence. Therefore, we have no knowledge of its provisions, if any, for attorney’s fees.

Defendant defaulted on the note at maturity and plaintiff delivered the note to his attorney with instructions to proceed with foreclosure under the deed of trust. The property was sold by the trustee and the balance, after deduction of a 5% trustee’s fee, was credited on the note, leaving a deficiency or balance due on the note of $13,193.13.

In a suit for the deficiency, plaintiff sought and recovered an attorney’s fee of 10% of the amount due at the time the note was placed with the attorney for sale under the deed of trust and collection. Defendant contends that plaintiff is not entitled to recover attorney’s fees on the amount collected through the trustee’s sale, but only on the sum of the deficiency plus interest accruing after the sale.

In the factually similar case of American Nat. Ins. Co. v. Schenck, 85 S.W.2d 833 (Tex.Civ.App. — Amarillo 1935, no writ), this court held that a mortgagee who elected to foreclose by sale by trustee under power contained in a deed of trust could not recover the 10% attorney’s fee provided for in the secured note, but could only recover only the trustee’s fees where the mortgagee’s attorney did nothing in his professional capacity toward collection of the indebtedness.

We conclude that in a suit for deficiency after foreclosure and on the facts of the case before us, plaintiff may recover the 10% attorney’s fees provided for in the note only on the total of the deficiency remaining after the trustee’s sale plus interest accruing thereafter.

Defendant’s remaining points of error are predicated on the apparently erroneous assumption that the original note was not introduced in evidence. The original exhibits are not before us. Nevertheless, the statement of facts shows that the note “given” by defendant was offered and admitted in evidence. In response to its tender by plaintiff, defendant’s trial counsel stated, “No objections.” The remaining points of error are accordingly overruled.

The judgment of the trial court is excessive in the amount of $1,332.80 because of the improper computation of attorney’s fees and interest thereon. The judgment is modified to reduce the recovery of plaintiff to $14,874.14 plus interest from date of judgment at 10% and costs in the trial court. As modified, the judgment is affirmed.


author: McDONALD, Chief Justice. HALL, Justice

text:
    Mrs. M. L. UNDERWOOD, Appellant, v. Arlene P. WEBB et al., Appellees.
    No. 5645.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1976.
    Rehearing Denied Dec. 23, 1976.

      Dunnam, Dunnam & Dunnam, Waco, for appellant.
    John B. McNamara, Jr., Waco, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Underwood from judgment non obstante veredicto she take nothing in her suit to declare “residential use only” restrictions no longer in effect as to her lots in Huaco Heights Addition to the City of Waco.

Plaintiff Underwood filed this suit as a class action against all present owners of lots in the Huaco Heights Addition to the City of Waco, for declaratory judgment that the deed restrictions against non residential use of plaintiff’s lots 16, 15 and one-half of 14 in block 5, were no longer enforceable.

Trial was to a jury which found:

1) Plaintiff’s property is no longer reasonably suitable for residential purposes.
2) The use of plaintiff’s property for non residential purposes would not materially affect other persons in the Huaco Heights Addition in the enjoyment of their property for residential purposes.
3) The removal of plaintiff’s property from the restriction would not harm those owning property in Huaco Heights Addition who wish to preserve the residential character of the Addition.
4) The failure of any owner in the Huaco Heights Addition to contest to finality the commercial use of the Educators’ Credit Union property constituted an abandonment of the general plan and scheme to restrict the entire Huaco Heights Addition.
5) At the time John McNamara agreed to dismiss his suit against the Educators’ Credit Union, the proposed use of the Credit Union property was a substantial non residential use of the property.
6) The agreement of John McNamara to dismiss his contest of the use of the Educators’ Credit Union property for non residential purposes for $5000, was a waiver of his right to enforce said restriction as to other property in the Addition.

The trial court first rendered judgment on the verdict releasing plaintiff’s property from the non residential use restriction, but thereafter granted defendant McNamara’s Motion for Judgment Non Obstante Vere-dicto; set the original judgment aside; and rendered judgment plaintiff take nothing.

Plaintiff appeals on 2 points:

1) The trial court erred in rendering Judgment Non Obstante Veredicto.
2) The trial court erred in setting aside the judgment on the verdict it rendered for plaintiff.

A schematic diagram of Huaco Heights Addition follows:

A. Bell Telephone repeater station on triangular ½ lot.

B. Educators’ Credit Union on IV2 lots.

C. Plaintiff’s 2½ lots.

Huaco Addition consists of 39 blocks and 493 lots. It was developed by Huaco Heights Realty Company commencing in 1916, which imposed on each lot restriction that it shall not “be used for other than residence purposes”. Plaintiff owns lots 15, 16 and one-half of 14 in block 5, occupying a residence located on 34th Street and Waco Drive.

Since the early 1950’s Waco Drive has had considerable commercial build up as it exits the Huaco Heights Addition to the west, and some commercial build up across Waco Drive from the Addition.

The only non residential use in the Addition is a Bell Telephone Company repeater station on a small triangular half lot in block 8 on 36th Street, and the Educators’ Credit Union Office on 1½ lots in block 7 (plus parking area) on Waco Drive.

The telephone company repeater station was built by a public utility having right of eminent domain. Its presence could not have been prevented, and it cannot be relied on to support a waiver or abandonment of the restriction. Lebo v. Johnson, CCA (San Antonio) NRE, 349 S.W.2d 744.

The Credit Union office was built in 1966. After it was built John McNamara, one of the defendants in this case, filed an injunction suit against the Credit Union to enforce the residential restriction. While suit was in trial, the parties reached a settlement whereby the Credit Union made a cash payment to McNamara who in return dismissed his injunction suit.

A court of equity may refuse to enforce a residential-only restriction: 1) because of the acquiescence of the other lot owners in such substantial violations within the restricted area as to amount to an abandonment of the restrictions, or a waiver of the right to enforce same; 2) because there has been such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized by the restriction. A court may not refuse to enforce a residential-only restriction against a particular lot on the sole ground that a change of conditions has rendered the lot unsuitable for residential purposes and it would therefore be inequitable to enforce it. Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943.

Where a landowner as here, who has never used his property for business seeks to have the restriction removed, relying on violations elsewhere in the addition, he must show such extensive violations as to amount to abandonment of the whole scheme of development. Simon v. Henrichson, CCA (Corpus Christi) NRE, 394 S.W.2d 249.

We think the evidence here completely fails to show the existence of such extensive violations throughout the subdivision as to indicate the intention of the part of the property owners to abandon the general scheme or purpose of a residential area, or to establish a waiver of the right to enforce same. On the contrary the residential character of the subdivision has been preserved remarkably well. For a residential addition containing 493 lots to have only two non residential uses, demonstrates a clear and continuing intention on the part of the property owners to maintain its residential character.

Plaintiff has failed as a matter of law to show acquiescence of the other lot owners in such substantial violations within the restricted area as to amount to abandonment of the restrictions, or waiver of the right to enforce same; and has failed to show such a change of conditions within the restricted areas or surrounding it as renders it no longer possible to secure in substantial degree the benefits sought to be realized by the restriction.

Plaintiff’s points are overruled.

AFFIRMED.

HALL, Justice

(dissenting).

I respectfully dissent. I agree with the majority’s holdings that there has not been a waiver or an abandonment of the residential-only restriction in question in the Hua-co Heights Addition. However, it is my view that the findings made by the jury in its answers to the first three special issues are supported by proof and require judgment for the plaintiff releasing her lots from the restriction. These findings are (1) plaintiff’s property is no longer reasonably suitable for residential purposes, (2) the use of plaintiff’s property for non-residential purposes would not materially affect the other owners in the Addition in the enjoyment of their property for residential purposes, and (3) removing the’ restriction from plaintiff’s property would not harm the owners wishing to preserve the residential character of the subdivision.

Summarized, the evidence shows that the restriction in question became effective in 1916; that since plaintiff purchased her residence in Huaco Heights Addition in 1944, Jefferson Street, the residential street which bordered the Addition and her lots on the South, has become a part of Waco Drive, which is a divided thoroughfare with multi-lanes for traffic on both sides of the median; that Waco Drive is a part of the main traffic artery between the eastern and western boundaries of McLennan County and carries a “terrific flow” of day and night traffic; that virtually all of the property adjoining both sides of Waco Drive in the area in question (including the adjoining lots in Block 7 of the Addition from 35th to 36th Streets upon which housing and parking facilities for Educator’s Credit Union are located) is devoted to commercial use, mostly professional offices; that because of the traffic on Waco Drive and the resulting noise, plaintiff’s property is no longer suitable for residential use by her or anyone and is not saleable for residential use, but is suited for and saleable for commercial use; that plaintiff is a 75-year-old widow and wants to sell her property and move into the home of her daughter in another city; that the Educator’s Credit Union, which is a non-residential use in the Addition adjoining Waco Drive one block from plaintiff’s lots, has not adversely affected the residential character and use of lots off Waco Drive; that the use of plaintiff’s lots for commercial purposes will not harm or interfere with the residential character and use of the interior lots in the Addition, but will actually benefit the residential nature of the interior lots by shielding them from Waco Drive; that the release of plaintiff’s lots from the residential-only restriction will not precipitate a tenpin effect of commercial uses off Waco Drive and into the interior lots because, for several reasons shown by the proof, the interior of the Addition is simply not suited to commercial use; that the defendants were selected at random from throughout the Addition (one from each block); and that all but one of the defendants favor releasing the plaintiff’s lots from the restriction.

In Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943 (1958), a judgment removing a residential-only restriction against a particular lot on a finding that the lot was “no longer suitable for exclusively residential purposes” was reversed by the Supreme Court because there was not an express finding (and because the appellate record which did not contain a statement of facts would not support an implied finding) that the removal of the restriction “would not prove harmful to [the owners] who wish to preserve the residential character of the subdivision.” The Court recognized that a court of equity may grant relief from a residential-only restriction “because there has been such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized through the covenant.” However, the Court said a particular lot may not be released from the restriction on the sole ground that a change of conditions has rendered the lot unsuitable for residential purposes, because “the equities favoring the particular owner is only one facet of the judicial inquiry”; that “the judgment must arise out of a balancing of equities or of relative hardships” between the particular owner and the other lot owners in the subdivision who wish to preserve the residential character of the area; and that where the disproportion between harm to the particular owner and benefit to the other owners is the sole reason for releasing the individual lot, the disproportion of harm must be one of “considerable magnitude.” 312 S.W.2d 946.

In our case, the jury has found in answers to the first three issues (1) harm to the plaintiff if the restriction is continued on her lots, and (2) no harm to the other lot owners in the Addition if the restriction is removed from plaintiff’s lots (i. e., no benefit to the others if the restriction is not removed). The proof supports these findings. To deny the plaintiff the relief she seeks is to effectively render her lots unsaleable and thereby destroy their value, but without benefit to the other owners in the Addition. This is surely a “disproportion [between harm and benefit] of considerable magnitude.”

I would reverse the judgment and render judgment for plaintiff on the verdict removing the restriction from only her lots.