author: WALTER, Justice.

text:
    Joe Ed GLOVER, Appellant, v. James Ronald MOORE and Richard Lee Moore, minors, Appellees.
    No. 4946.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 2, 1976.
    D. August Boto (Gilliland, Cates, Flagg & Rowton), Dallas, for appellant.
    Clyde Stanley Boose, Seymour, for appel-lees.
   WALTER, Justice.

Charles W. Reagan, guardian of the persons and estates of James Ronald Moore and Richard Lee Moore, minors, and as independent executor of the estate of Evelyn Joyce Glover filed suit to recover funds held by Joe Ed Glover. The guardian recovered a judgment against Joe Ed Glover for $16,-800.00 and Glover has appealed.

Joe Ed Glover married Evelyn Joyce Moore on August 6,1973. On November 5, 1973, she withdrew $20,712.89 from her account at Olney Savings Association. On the same day, Mrs. Glover accompanied by her husband cashed the Olney check at First National Bank in Seymour by receiving some cash and a cashier’s check made payable to the order of Mr. or Mrs. Joe Glover in the amount of $15,000.00. Thereafter, Glover replaced the First National check with one from Farmer’s National Bank in Seymour payable to the order of Mr. or Mrs. Joe Glover and placed it in a joint safety deposit box which he held with his wife in the Farmer’s bank. Mrs. Glover died November 25, 1973. Thereafter, Glover took the check from the lock box and purchased a cashier’s check from City National Bank in Wichita Falls made payable to him. Glover cashed the $15,000.00 cheek at the City National Bank and deposited most of it in said bank.

Appellant contends the court erred in refusing to grant his motion for change of venue. Appellant filed his application for a change of venue under Rule 257, T.R.C.P. and appellee filed a controverting affidavit thus forming an issue on the change of venue question. After a hearing, the court overruled the motion.

The burden of proof upon the motion for a change of venue was on the appellant. The granting or refusing of such a motion will not be disturbed on appeal unless there is an abuse of discretion. Bennett v. Jackson, 172 S.W.2d 395 (Tex.Civ.App. — Waco 1943, writ ref. w. o. m.).

We have considered the entire record and find the court did not abuse his discretion in refusing the motion.

The appellant contends:

“APPELLANT’S SECOND POINT OF ERROR
The trial court erred in overruling appellant’s motion for new trial since there was insufficient evidence to support the jury verdict.”
The issues and the jury’s answers are as follows:
“SPECIAL ISSUE NO. 1
Do you find by clear and satisfactory evidence that the said Evelyn Joyce Glover did not intend to make a gift of the money in question to her husband, Joe Ed Glover?
Answer ‘She did not intend’ or ‘She did intend.’
ANSWER: She did not intend.
SPECIAL ISSUE NO. 2
Do you find by clear and satisfactory evidence that Evelyn Joyce Glover did not make an immediate, voluntary transfer of said money in question to her husband, Joe Ed Glover?
Answer ‘She did not make’, or ‘She did make.’
ANSWER: She did not make.”

In State v. Abernathy, 431 S.W.2d 359 (Tex.Civ.App. — Amarillo 1968, writ ref. n. r. e.), the court said:

“. . . Our courts have uniformly held that in order to constitute a valid gift inter vivos or causa mortis, there must be a delivery of possession of the thing given; and the intention of the donor to vest in the donee unconditionally and immediately the ownership of the property delivered. Weems v. First National Bank of Winnsboro (Tex.Civ.App.) 234 S.W. 931; Wells v. Sansing, 151 Tex. 36, 245 S.W.2d 964; O’Donnell v. Halladay (Tex.Civ.App.) 152 S.W.2d 847 (ref’d w. o. m.); 27 Tex.Jur.2d, p. 158, Gifts, Sec. 12.”

After Mrs. Glover withdrew her separate funds from the Olney Savings, she did not make a delivery of possession of the money to Glover. The fact that Mrs. Glover retained control of the check by having it payable to her or her husband constitutes evidence she did not intend to make an inter vivos gift.

We have considered the entire record and hold the findings are not against the preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have considered all of appellant’s points and find no merit in them. They are all overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Chief Justice.

license: Public Domain

text:
    FIRST NATIONAL BANK IN DALLAS, Appellant, v. Tom L. WALKER, Appellee.
    No. 19010.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 6, 1976.

      Robert M. Roller, Thomas W. Craddock, Coke & Coke, Dallas, for appellant.
    Linda S. Aland, Strother, Davis, Stanton & Levy, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

First National Bank in Dallas (First National) brought this action against Tom L. Walker (Walker) and two other individuals, as guarantors of the corporate indebtedness of Instant Ice, Inc. to the bank. Prior to trial, judgment was rendered by agreement against the other two guarantors. Following a jury trial, judgment was rendered that First National take nothing against Walker, and from that portion of the judgment, First National appeals. In ten points of error, First National bases its appeal on the contention that: (1) The trial court erred in rendering the judgment dated January 29, 1976, because by vacating a previous judgment it automatically granted a new trial in the cause; (2) the trial court erred as a matter of law in rendering judgment because there is no evidence to support the verdict or alternatively because the verdict is against the great weight and preponderance of the evidence; (3) the trial court erred in admitting evidence concerning the terms of an oral agreement which conflicted with the terms of the written guaranty agreement executed by Walker; and (4) the trial court erred in rendering judgment because the issues submitted to the jury did not support a defense to the liability of Walker under the written guaranty agreement. We find no merit to any of these contentions and accordingly affirm the judgment.

On May 2,1974, Instant Ice, Inc. executed a promissory note payable to First National in the amount of $30,000. Contemporaneous with the execution of the note, two shareholders of Instant Ice, Inc., Frank E. Frey and Gene H. Hoffman, executed unlimited written agreements guaranteeing the indebtedness evidenced by the note. Also, First National required that two other shareholders of the corporation, including Walker execute guaranty agreements. On August 7, 1974, Walker appeared at First National upon the request of one of its officers, Vaughn C. Pearson, and signed a blank unlimited guaranty agreement on the note. Although Walker admits placing his signature on this agreement, he testified that because of business commitments he was in a hurry to leave town and relied upon an oral agreement made with Pearson, as an officer of the bank, that (1) the blank guaranty would not be completed and become effective until Pearson obtained the signature of one Ted Kreatschman upon a similar guaranty; and (2) upon obtaining the latter individual’s signature, Pearson would complete the guaranty form in such a manner as to limit Walker’s liability to a percentage of the $30,000 loan equal to Walker’s percentage of stock ownership in Instant Ice, Inc. He also testified that in reliance upon this oral agreement, he signed the written guaranty agreement without the necessary entries which would limit his liability. However, Pearson testified that there was no such agreement and that Walker stated only that he wished to limit his liability to $30,000, the amount of the corporation’s note outstanding at that time. Walker did not receive a copy of the written guaranty agreement after completion and was not aware of the liability contended by the bank until the institution of this suit.

The bank sued Walker, Frey and Hoffman upon the guaranty agreement signed by each of them in connection with the loan. Walker denied execution of the guaranty agreement in the form sued upon and asserted that, in reliance upon conditions precedent to the effectiveness of the agreement, he signed a printed guaranty form with none of the blanks filled.

In response to special issues submitted, the jury found that: (1) at the time Walker signed the guaranty agreement, the figure “$30,000” did not appear in said instrument; (2) Vaughn Pearson agreed that said guaranty would not be completed unless Ted Kreatschman’s signature was obtained on a similar guaranty; and (3) Pearson agreed to fill in the dollar amount of said guaranty so as to limit Walker’s liability to a percentage of the $30,000 loan equal to his percentage of ownership in Instant Ice, Inc. Based upon this verdict the trial court rendered a take-nothing judgment in favor of Walker.

Judgment

Following receipt of the verdict, and on January 23, 1976, the trial court signed and rendered a judgment against Frey and Hoffman, jointly and severally, in the sum of $30,000, with interest and attorney’s fees, and ordered that First National have and recover nothing from Walker. On January 29, 1976, apparently acting upon suggestions of Walker’s attorney that the January 23, judgment contained certain erroneous recitals, the trial court entered an order reciting that some of the recitals in the January 23 judgment are erroneous and accordingly said judgment should be set aside. On the same date, January 29, 1976, the trial court signed another judgment in favor of the bank and against Frey and Hoffman but denying the bank any recovery against Walker. A comparison of the two judgments reveals that the only changes made in the second judgment were: (1) modification of the phrase “wholly based upon the findings of the jury” to read “on findings of jury;” (2) a reduction to writing of the oral pronouncement of judgment that Walker recover his costs from First National; and (3) a recitation that First National announced notice of appeal in open court to that portion of the judgment relating to Walker.

Notwithstanding these limited changes which do not include a review of the facts of the case after judgment, First National argues that the mere fact that an order setting aside the first judgment was entered separate and apart from the entry of the second judgment means that a new trial was granted automatically. First National cites numerous authorities to support its contention, but our review of each of them convinces us that they are not authoritative in the factual situation presented in this case. Wichita Falls Traction Co. v. Cook, 122 Tex. 446, 60 S.W.2d 764, 767-68 (1933); Schaffer v. Speckels, 62 S.W.2d 85 (Tex.Com.App.1933, holding approved); Marmion v. Herrin Trans. Co., Inc., 127 S.W.2d 558 (Tex.Civ.App. — Beaumont 1939, writ ref’d); Beal v. Great American Indemnity Co., 322 S.W.2d 399, 403 (Tex.Civ.App. —Texarkana 1959, no writ). These cases involve situations in which the court set aside a judgment based upon a jury verdict for one party and entered a new judgment in favor of the opposite party. The courts followed the principle that a trial by jury is a lawful right given to litigants. When there is some evidence regarding a fact issue, it is the peculiar providence of the jury to find the facts of the case, and no court has the right to substitute its own findings of fact and render judgment thereon in opposition to the findings of the jury. Thus, the cases are not analogous to the situation herein because the only changes in the original judgment were slight and did not change the principal basis of recovery and denial of recovery as recited in the original judgment.

First National also cites the case of Smith v. Thornton, 119 Tex. 344, 29 S.W.2d 314 (1930) holding that when a trial court renders judgment upon the findings of the jury, the verdict and judgment become merged, and the court’s action in setting aside the judgment operates also to set aside the verdict and to grant a new trial. However, there are other cases which hold that the trial court has the power to amend, modify, reform or set aside any of its judgments, decrees or orders. Wood v. Wheeler, 7 Tex. 13, 16 (1851); Blum v. Wettermark, 58 Tex. 125, 127 (1882); Gulf C. & S. F. Ry. v. Muse, 109 Tex. 352, 207 S.W. 897, 898 (1919); Swanson v. Holt, 126 Tex. 383, 87 S.W.2d 1090, 1091-92 (1935); A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853-55 (1952); Whisenant v. Fidelity & Casualty Co. of New York, 354 S.W.2d 683, 685 (Tex.Civ.App. — Dallas 1962, writ ref’d n. r. e.); Dubert v. Adkins, 475 S.W .2d 383, 385 (Tex.Civ.App. — Corpus Christi 1971, no writ); Imperial Insurance Co. v. Ellington, 498 S.W.2d 368, 370 (Tex.Civ.App. — San Antonio 1973, no writ); and Reavley & Orr, The Trial Court’s Power to Amend Its Judgment, 25 Baylor L.Rev. 191, 205-07 (1973).

After a review of these cases, we conclude that a trial court is not prohibited from correcting its judgment so long as it does not attempt to make new findings of fact or usurp the authority of the jury. Tex.R.Civ.P. 329b specifically provides that a judgment does not become final for thirty days after its rendition. During that period of time, the trial court has jurisdiction over its judgment, and we do not believe the trial court abuses its power in modifying or revising a judgment so long as it does not review and change the fact findings made at the time of the first judgment. In the instant case the trial court did not review the facts but only attempted to modify its written judgment to reflect what previously had been decided upon oral pronouncement of judgment. The mere technicality that the trial court made two separate entries instead of incorporating them into one instrument should not be controlling when the trial court’s intention is clearly shown by the instruments signed. Consequently, we overrule appellant’s point concerning the validity of the judgment which forms the basis of this appeal.

Sufficiency of the Evidence — Parol Testimony

The principal thrust of the remaining points of error advanced by appellant is that the trial court erred in permitting Walker to introduce parol testimony relating to the execution and delivery of the guaranty agreement and that in the absence of such testimony there would be no evidence or insufficient evidence to support the answer of the jury to special issues number two and three. We hold that parol evidence was admissible for two reasons. It was admissible to show an agreement creating a condition precedent to delivery of the instrument as found by the jury in answer to the second special issue. It was admissible also to show the agreement of the parties concerning the information to be placed in the blank spaces on the form since they were not filled at the time the instrument was executed, as found by the jury in answer to the first and third special issues. Since the parol evidence was properly admitted, we hold there is sufficient evidence to support the jury verdict.

During the trial appellee Walker testified that although he was not involved with the negotiations leading to the $30,000 loan from the bank to Instant Ice, Inc., he was familiar with such loan and that on August 7, 1974, he received a telephone call from First National’s officer, Vaughn Pearson, who requested that he execute a guaranty of the loan. He said that this telephone call was the first contact he had with Pearson or anyone else connected with the bank concerning the loan or the execution of the guaranty agreement. At Pearson’s request Walker went to his office and upon his arrival, Pearson was busy with a customer so Pearson’s secretary handed Walker his printed form of guaranty which was completely blank, that is no blanks were filled in with typewriting. When Pearson appeared, Walker discussed the matter of the blank form with Pearson. Walker indicated that he would sign the blank guaranty form upon the condition that the bank secure from Ted Kreatsehman a similar agreement and that the extent of Walker’s guaranty would be limited to the amount of his ownership interest in Instant Ice, Inc. which was approximately fifteen percent. Walker testified that Pearson agreed to his conditions of delivery of the agreement. Walker testified that he executed a blank form of guaranty and left it with Pearson to be completed only upon the agreed condition of delivery. The bank made one preliminary objection to Walker’s testimony as being violative of the parol evidence rule and then, at the completion of Walker’s entire testimony, the bank moved to strike all of his testimony. The trial court overruled the objection and the motion and permitted the testimony to go to the jury.

Pearson denied that any parol agreements were made with respect to the guaranty, and two of the shareholders of Instant Ice, Inc. denied that Walker had ever informed them of the agreement limiting his liability under the guaranty. At the time of trial Instant Ice, Inc. was hopelessly insolvent.

The printed form of guaranty executed by Walker contained two blanks other than the date. The name “Instant Ice, Inc.” is typed in one of the blanks. In paragraph one, it is provided that:

Unless a different definition is stated in paragraph twelve hereof, the expression “guaranteed indebtedness,” as that term is used herein, means “all indebtedness of every kind and character . and without limit as to amount except that if, but only if, the blank at the end of this sentence be filled in the amount of the guaranteed indebtedness shall be limited to the aggregate at any one time

In the document sued on, the blank is filled with the principal sum of $30,000. Paragraph twelve provides:

Unless specific indebtedness is described in the space below, the express “guaranteed indebtedness,” as used herein shall have the meaning stated in paragraph one, but if the space below is filled in, such expression shall mean the indebtedness described below, together with all renewals or extensions of such indebtedness, or any part thereof:

The space following this colon remains blank.

Careful examination of the written guaranty agreement fails to reveal the existence of a merger clause or any other statement which would indicate the intention of the parties that any and all statements and agreements made prior to the execution of the instrument should be merged into the instrument itself.

The bank argues that the written guaranty agreement sued upon is an unconditional and unlimited agreement and is the complete integration of all agreements between the parties. If the amount is left blank, the guaranty instrument does purport to create an unlimited guaranty of indebtedness subject to the twelve terms and conditions included therein. However, the instrument does not state that these are the only conditions nor does it contain a merger clause. The authorities cited by the bank, such as Bowden v. Partners’ Finance, 278 S.W.2d 866, 868 (Tex.Civ.App. — Amarillo 1956, no writ); Henslee v. First National Bank, 314 S.W.2d 881, 883 (Tex.Civ.App.— Dallas 1958, no writ); Hood v. First National Bank, 410 S.W.2d 449, 451 (Tex.Civ.App. —Amarillo 1966, writ ref’d n. r. e.); and Kane v. Union State Bank, 384 S.W.2d 358, 360-61 (Tex.Civ.App. — Eastland 1964, writ ref’d n. r. e.), deal with cases which involved a completely integrated written agreement which were either unconditional on their face or contained specific merger clauses.

In the case before us the jury found that at the time Walker signed the guaranty agreement, the figure “$30,000” did not appear in the instrument and that Pearson agreed the guaranty would not be completed unless Ted Kreatschman’s signature was obtained on a similar document. Further, the jury found that Pearson agreed to fill in the dollar amount of said guaranty so as to limit Walker’s liability to a percentage of the $30,000 loan equal to his percentage of ownership in Instant Ice, Inc. (which would necessitate filling the blank contained in Paragraph twelve, cited above). Walker contends that these findings support a defense of an oral condition precedent to the effectiveness of the written guaranty agreement and that a take-nothing judgment was proper. We agree.

Conditional Delivery

Parol testimony is admissible to show the execution of a written instrument under an agreement that it is not to become effective except upon certain conditions. Holt v. Gordon, 107 Tex. 137, 174 S.W. 1097 (1915), and Brewer v. Tedford, 447 S.W.2d 479, 484-85 (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.). It is well settled that a written contract does not become a binding obligation until delivery, and, if the delivery is conditional, the written contract does not become a binding obligation until a condition upon which delivery depends has been fulfilled. American Slicing Machine Co. v. Vincent, 279 S.W. 317 (Tex.Civ.App.— Amarillo 1926, no writ) and cases cited therein.

Also, one who executes an obligation conditional upon the express representation, of which the obligee has notice, that a third party shall likewise execute an agreement and share the liability thereon, will be released from liability if the third party fails to so execute the instrument. Kugle v. Traders’ State Bank, 252 S.W. 208, 209 (Tex.Civ.App.—San Antonio 1923, no writ) and Roddy v. Citizens’ State Bank, 11 S.W.2d 652, 653 (Tex.Civ.App.—Dallas 1928, no writ).

We hold that the trial court did not err in admitting parol evidence to establish an oral agreement which is a condition precedent to the effectiveness of the guaranty and which limited the delivery thereof.

Incomplete Instrument

Evidently the jury, as finders of fact and judges of the credibility of the witnesses, chose to believe Walker’s testimony concerning the condition precedent to the guaranty agreement. After a review of the evidence we cannot say that the verdict is against the great weight and preponderance of the evidence. Even viewing the evidence most favorably to the bank, the bank’s officer’s own testimony does not support the bank’s position that the blanks were filled strictly in accordance with the oral agreement. Upon direct examination, Pearson testified concerning the oral conversations at the time of the signing of the agreement as follows:

Q. What was the nature of those conversations?
A. He refused to sign any guaranty which had any blanks in it. He indicated that he wanted to limit his personal liability to the event of the loan, to the then loan outstanding, $30,000.

Thus, Pearson’s own testimony does not support the instrument as sued upon because when the $30,000 amount was inserted on the guaranty form, it was placed in paragraph one which created the guaranty of all indebtedness now existing or hereafter arising but limited only in that the aggregate amount at any one time should be no more than $30,000. However, Pearson’s testimony indicates that his understanding of the agreement required an entry in paragraph twelve of the agreement restricting the guaranty to the then outstanding loan in the amount of $30,000. When a party signs an instrument containing blanks and entrusts it to another under an agreement that the blanks will be filled in a certain manner, the party to whom the instrument is entrusted has a duty to fill the blanks strictly in accordance with the agreement, and, in the absence of negotiations to an innocent holder, the party signing the instrument is not bound to the terms subsequently inserted in the blanks if the instrument after it is completed does not reflect the true agreement. Sentinel Fire Ins. Co. v. Anderson, 196 S.W.2d 649, 651 (Tex.Civ.App. — Amarillo 1946, no writ).

Finally, the bank argues that the jury’s answer to the special issues submitted can be construed to mean that if First National did not obtain Kreatschman’s signature on a similar guaranty, it was not required to insert an amount in the blank and Walker’s guaranty was unlimited.

In this connection the bank argues that even if the amount of the guaranty was blank when the instrument was signed and delivered, the document was nevertheless complete because it expressly provides that the guaranty is unlimited if no amount is inserted. Thus, the bank insists that parol evidence was not admissible to show that the parties agreed otherwise. We do not accept this argument because, according to the undisputed evidence, neither of the parties treated the instrument as complete in this form. The document sued on shows on its face that the figure “$30,000” was inserted, and since there is evidence tending to show that the insertion was made after delivery, we must hold that parol evidence was admissible to show that the document was not completed in accordance with the agreement of the parties.

The judgment of the trial court is affirmed.

Affirmed.


author: AKIN, Justice.

text:
    Robert G. KAISER, Appellant, v. NORTHWEST SHOPPING CENTER, INC., Appellee.
    No. 19020.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 8, 1976.

      Robert O’Donnell, Dallas, for appellant.
    John C. Biggers, Rick W. Hightower, Big-gers, Lloyd, Biggers, Beasley & Amerine, Dallas, for appellee.
   AKIN, Justice.

This is an appeal by Robert G. Kaiser, doing business as Northwest Pharmacy, defendant below, from a judgment entered against him for rent and attorney’s fees under a lease. Appellant contends that judgment was improperly rendered because his obligation to pay the disputed rent was discharged under § 3.503, Tex.Bus. & Comm.Code Ann. (Vernon 1968), by the ap-pellee landlord’s retention of the rent checks for an unreasonable period of time before presenting them for payment. He also contends that there was no evidence to support an award of attorney’s fees. We hold that judgment was properly rendered for the rent due, but that the court could not take judicial notice of a reasonable attorney’s fee. Consequently, there was no evidence to support an award for attorney’s fees. Accordingly, we affirm the judgment with respect to the rent due but reverse and remand with respect to the award of attorney’s fees.

Appellant Kaiser and appellee Northwest Shopping Center, Inc. were parties to a lease agreement pertaining to certain retail space under which Kaiser was obligated to pay $500 per month rent plus a pro rata share of property taxes, a maintenance fee, and a percentage of gross sales over $200,-000. The lease gave Kaiser the exclusive right to operate a drug store in the shopping center. The original lease term was to expire on December 31, 1973; however, a letter dated June 1, 1971 gave Kaiser an option to extend the lease on the same terms, except that his rent would be increased to $750 per month. By another letter dated January 22, 1974 Northwest Shopping Center, Inc. informed Kaiser that since Kaiser had not elected to extend his lease, he would be considered a month-to-month tenant at a rate of $600 per month. Kaiser then took the position that he had extended the lease by tendering checks in the amount of $750 per month. Commencing in January 1974, Northwest held Kaiser’s rent checks without presenting them while another tenant, a large grocery chain, was attempting to renegotiate its lease to permit it to install a pharmaceutical department which, if permitted by Northwest, would have been contrary to a covenant in Kaiser’s lease. When these negotiations collapsed, Northwest decided to acquiesce in Kaiser’s lease extension. Acting on this decision, Northwest presented the accumulated checks to Kaiser’s bank on October 29, 1974. The bank honored some of the checks but refused to honor the others because they were stale or because the account contained insufficient funds. On October 31 Northwest again presented the dishonored checks, but payment had been stopped on them. Northwest then sued to recover the unpaid rent, as well as attorney’s fees as provided in the lease, and obtained judgment for $10,131.30 which included $2,500 in attorney’s fees.

Kaiser contends that because the checks were not presented within a reasonable period of time, the checks and the underlying debt are discharged under §§ 3.601 and 3.802. These sections of the Code do not support such a contention. Section 3.802 provides:

(a) Unless otherwise agreed, where an instrument is taken for an underlying obligation .
(2) . . If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation.

This section allows a creditor, after a check is dishonored, to choose whether he wants to sue on the check or the underlying debt. Gaskins v. Duke, 483 S.W.2d 499, 500 (Tex.Civ.App. — Houston [14th District] 1972, no writ). However, it goes on to provide that if the debtor’s liability on the check has been discharged under another provision of the Code, then the underlying debt is also discharged. Tex.Bus. & Comm.Code § 3.802, comment 3 (Vernon 1968). The methods by which the obligation on a check can be discharged are specified in § 3.601. Kaiser apparently relies upon § 3.601(b), to wit:

Any party is also discharged from his liability on an instrument to another party by any other act or agreement with such party which would discharge his simple contract for the payment of money.

Kaiser argues that retention of the checks longer than a reasonable time is an “other act” constituting a discharge under the section. Apparently he relies on the cases holding that “ . . .a creditor’s retention for an unreasonable length of time of a check tendered in full payment of an unliq-uidated or disputed claim, without cashing or otherwise using it and without indicating a refusal to accept the check in accord and satisfaction, constitutes an acceptance of the check in settlement for payment of the claim, so as to bar any action for an alleged balance due.” Annot. 13 A.L.R.2d 736, 738 (1950); see Osage Oil Corp. v. McGuire, 45 S.W.2d 249, 253-54 (Tex.Civ.App. — Fort Worth 1931, writ dism’d).

The flaw in this argument is that “acceptance,” as used in these cases, means that the creditor treats the check as cash, subject to payment by the bank on which it was drawn, and is bound by any conditions upon which the check was delivered. See Osage Oil Corp., supra. By merely holding the check, the creditor does not lose his right to be paid. If the check is not honored by the bank on which it is drawn, the debtor loses the benefit of his tender by check. Curran v. Bray Wood Heel Co., 116 Vt. 21, 68 A.2d 712, 717 (1949). Retention of the check, even beyond a reasonable time, does not discharge- either the check or the underlying debt under § 3.601(b) or under § 3.802.

Kaiser also relies on § 3.503(b)(1), which provides that instruments shall be presented for payment within a “reasonable” time, defined as thirty days from the date of issue or the date of the check, whichever is later. This section does not relieve the drawer, however, of his liability on the stale check. The only penalty the Code provides for such a delay as between the drawer and the holder is under § 3.502, which provides that a drawer’s liability on a stale check may be discharged if the bank on which it is drawn has become insolvent. Since no question of the bank’s solvency is presented here, §§ 3.502 and 3.503 do not assist Kaiser.

Furthermore, § 3.503 does not mention discharge of a check, but rather defines “time for presentment.” Section 3.502 does, however, refer to discharge and is specifically set forth under § 3.601(a)(9), as follows:

(a) The extent of the discharge of any party from liability on an instrument is governed by the sections on
(9) unexcused delay in presentment or notice of dishonor or protest (Section 3.502).

We conclude that § 3.503 may not be read in conjunction with § 3.601(a)(9) so as to discharge a check because it became stale; instead § 3.601(a)(9) must be read together with § 3.502. Thus, neither the check nor the underlying obligation is discharged under §§ 3.601(a)(9) and 3.802 as Kaiser contends.

Kaiser’s second contention is that the district court improperly awarded Northwest attorney’s fees because there was no evidence to support the award. Northwest argues that the trial court could take judicial notice of what a reasonable fee would be based upon the State Bar of Texas minimum fee schedule without hearing evidence. Northwest’s claim for attorney’s fees was based solely upon the lease provision giving the landlord the right to collect attorney’s fees in the event of breach or default. In Coward v. Gateway National Bank, 525 S.W.2d 857, 859 (Tex.1975), the supreme court held that a court cannot take judicial notice of reasonable attorney’s fees unless the suit is one of those specified in Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1976). In all other cases, the reasonableness of the fee claimed must be established by evidence. Since an attorney’s fee provided by contract does not fall within article 2226, the award of attorney’s fees was improper. See Coward, supra, at 858-59. Accordingly, the judgment of the trial court is affirmed with respect to its rendition of monies due for rent but is reversed and remanded for further proceedings with respect to the award of attorney’s fees.


author: CADENA, Justice. KLINGEMAN, Justice

text:
    CLAROSTAT MFG., INC., Appellant, v. ALCOR AVIATION, INC., Appellee.
    No. 15558.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.

      Davis & O’Connor, Robert B. O’Connor, Charles M. Jefferson, San Antonio, for appellant.
    Robert L. Strickland, John T. Dailey, San Antonio, for appellee.
   CADENA, Justice.

This is a suit for breach of express and implied warranty. Defendant, Clarostat Manufacturing Company, Inc., appeals from a judgment, following a jury trial, awarding plaintiff, Alcor Aviation, Inc., $85,861.00 in damages. Plaintiff complains of the action of the trial court in disregarding that portion of the jury’s findings awarding plaintiff an additional $55,666.00 for lost profits and damage to plaintiff’s good will and reputation.

Plaintiff, a manufacturer of aviation instruments, is engaged in the manufacture and sale to owners of aircraft of a device, known as an Exhaust Gas Temperature Gauge. It is not necessary for us to attempt to explain the function of this device. A component part of this metering instrument is a device known as a potentiometer, which is manufactured by defendant.

Prior to 1967, defendant manufactured and sold to plaintiff for use in the metering instrument a potentiometer known as an “MH” potentiometer, which performed efficiently. Defendant developed a new model, identified as a “Series 39” potentiometer. A representative of defendant represented directly to plaintiff that this new model would function properly if used in the instruments manufactured by plaintiff. It is undisputed that the Series 89 potentiometer did not function effectively and that it was necessary for plaintiff to replace the defective potentiometers in more than 500 of the Exhaust Gas Temperature Gauges.

The case was submitted to the jury on 18 special issues. The first 10 of these issues, all of which were answered favorably to plaintiff, relate to breach of warranty by defendant. Issues 11-17, which present affirmative defenses urged by defendant, were also answered favorably to plaintiff. Issue 18 related to damages.

We consider first defendant’s complaint that the trial court erred in denying Part III of its motion to produce documents.

The relevant part of the motion to produce sought to compel plaintiff to make available to defendant documents and other information relating to plaintiff’s overhead expenses. This information was clearly relevant, since plaintiff’s claim for damages was based on a formula which can be expressed as “damages = x + xy,” where “x” represents plaintiff’s direct labor costs and “y” represents the ratio of overhead expenses to direct labor costs.

Plaintiff’s suit was filed August 26, 1970. The motion in question was filed on May 13, 1975, six days before the trial began, and was denied May 16, 1975. The motion sought the production of (1) the raw material, records, and data which plaintiff’s accountants used in computing the overhead figures “furnished to the Defendant”; and (2)all interoffice correspondence, memos, evaluations, and any other documents written in 1976 and subsequent years concerning overhead.

It appears that the overhead figures “furnished to the Defendant” by plaintiff were made available to defendant some five months prior to the filing of the motion for production of documents and other items. These figures covered the years 1968-73, inclusive.

The argument in defendant’s brief relating to this asserted error consists of recitals to the effect that the motion was filed, resisted by plaintiff, and denied by the trial court, followed by the statement that the only evidence produced by plaintiff relating to overhead consisted of a one-page summary giving the total amount of overhead expense for the six years in question.

In determining whether to grant or refuse a motion for production of documents, the trial court is vested with “a wide discretion and his action will not be reversed unless an abuse of such discretion is shown.” Cutler v. Gulf States Utilities Co., 361 S.W.2d 221, 224 (Tex.Civ.App. — Beaumont 1962, writ ref’d n. r. e.). The order denying defendant’s motion recites that the motion was denied after the trial court heard evidence relating to the motion. Defendant calls our attention to no evidence which would indicate that the trial court acted arbitrarily or otherwise abused its discretion in denying the motion. Under the circumstances, particularly the unexplained delay in seeking production of the documents, we cannot say that the trial court abused its discretion in denying the motion.

Defendant contends that the trial court erred in submitting the damage issue because such issue, in the form submitted, permitted the jury, in determining the amount of damages, to include damages allegedly suffered by plaintiff as the result of defects in potentiometers purchased from a party, Simpson Electric Company, other than defendant. The argument is that as to the potentiometers purchased by plaintiff from Simpson, the requisite privity of contract between plaintiff and defendant is lacking and that, therefore, as to those potentiometers, plaintiff cannot claim a breach of warranty by defendant.

All of the defective potentiometers, whether purchased by plaintiff from Simpson or directly from defendant, were manufactured by defendant. Simpson manufactured, as plaintiff’s subcontractor, at least part of the exhaust gas temperature measuring devices, using potentiometers which Simpson purchased directly from defendant. The evidence shows that defendant was aware of the arrangement between plaintiff and Simpson. The evidence also shows that representations concerning the quality of the potentiometers were made directly to plaintiff by defendant. Under these circumstances, the existence of a contractual relationship between plaintiff and defendant with reference to the devices purchased by plaintiff from Simpson is not essential to recovery by plaintiff for breach of express warranties made directly to plaintiff by defendant. United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432, cert. den., 302 U.S. 749, 58 S.Ct. 266, 82 L.Ed. 579 (1937).

In any event, this defect in the manner of submitting the damage issue was not called to the attention of the court by defendant by objection to the charge, and the error, if any, was waived.

[-5] The contention that the court erred in submitting the damage, issue to the jury “because there was insufficient evidence for the jury to decide that the Plaintiff was entitled to any amount for its overhead expenses” is without merit. The factual insufficiency of the evidence to support an affirmative answer to an opponent’s issue furnishes no basis for refusal to submit the issue. Strauss v. LaMark, 366 S.W.2d 555 (Tex.1963); Imperial Insurance Co. v. Ellington, 498 S.W.2d 368 (Tex.Civ.App. — San Antonio 1973, no writ), it should be noted that defendant’s sole complaint here and in its motion for new trial relates to the submission of the issue.

Defendant asserts that the trial court erred in submitting Part I of issue 18, the damage issue, because “there was no evidence of probative force to sustain a monetary judgment in the Plaintiff’s favor.”

Part I of issue 18 is as follows:

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate [plaintiff] for its damages, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
You may consider the following elements of damage, if any, and none other:
I.
(a) Potentiometers replaced in meters returned by customers for warranty repair.
(b) Potentiometers removed from meters returned from dealers and OEM.
(c) Potentiometers removed from new meters in various stages of construction and replaced with CTS potentiometers.
(d) CTS potentiometers purchased to replace faulty Clarostat potentiometers. Answer in dollars and cents, if any.
We, the Jury, answer: $85,861.00.

Part II of issue 18 inquired concerning damages due to lost profits and loss of good will. The jury’s answer to Part II ($55,-666.00) was disregarded by the trial court.

As already pointed out, of the 18 issues submitted, 7 can be classified as “defendant’s issues” in the sense that they related to affirmative defenses on which defendant relied. Defendant did not object to the submission of any of these 7 issues. To the remaining 11 issues, which can be categorized as “Plaintiff’s issues,” defendant directed 38 objections. Three identical, general stock objections were directed to the submission of each of these 11 issues. These stock objections can be summarized as follows: (1) There is no evidence to support submission of the issue. (2) There is insufficient evidence to support an answer favorable to plaintiff. (3) An answer favorable to plaintiff would, as to each of these 11 issues, be contrary to the overwhelming weight and preponderance of the evidence.

Each of the three stock objections is obviously without merit insofar as each of the 10 liability fixing issues is concerned. In this Court defendant has not even made a token effort to insist that, in the face of the three stock objections, it was error to submit any one of these 10 issues. Of the 33 stock objections directed at the charge, 30 are obviously frivolous. Of the remaining three stock objections, two are without merit on the face of each objection, since the factual insufficiency of the evidence to support an affirmative answer to an opponent’s issue, or that an affirmative answer to such issue would be contrary to the overwhelming weight and preponderance of the evidence, is not a valid objection.

It must be concluded that under these circumstances the “no evidence” objection to issue 18 was effectively obscured by being included within a bundle of 32 frivolous objections. Monsanto Co. v. Milam, 494 S.W.2d 534, 536 (Tex.1973); McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545, 549-50 (Tex.1964). “If counsel really means to dissuade the trial court from submitting an issue, he may object to it on the ground that there is ‘no evidence’ to support an adverse finding, but such an objection has little persuasive effect if the same objection is made to all adverse issues.” 1 Tex. Pattern Jury Charges 26 (1969).

Defendant contends that the trial court erred in submitting issues 1-10 because all of those issues relate to a warranty theory of recovery, and since the charge did not contain, and plaintiff did not request the submission of, an issue inquiring whether plaintiff timely notified defendant of the alleged breach of warranty, plaintiff “waived a special issue concerning notice.”

Plaintiff’s petition alleged causes of action based on breach of warranty and strict liability theories. Since no issues were submitted relating to the right to recover on the theory of strict liability, this “independent ground of recovery” was clearly waived by plaintiff. Rule 279, Tex. R.Civ.P. But, as defendant points out, the issues submitted related to plaintiff’s cause of action based on breach of warranty. All the issues submitted were clearly referable to the warranty claim. The giving of notice is merely an essential element of the submitted ground of recovery. It is not an independent ground of recovery. Unless the failure of the charge to embody an issue inquiring as to the existence of an essential element of a submitted ground of recovery was properly called to the attention of the trial court, we must presume that the question of notice was resolved by the judge in a manner which will support the judgment. Rule 279; Strauss v. LaMark, supra.

Defendant complains of the refusal of the trial court to submit defendant’s requested special issue “W” — which consisted of an inquiry as to the date when plaintiff learned, or, by the exercise of reasonable diligence, should have learned of the defects in the potentiometers. The portion of the motion for new trial to which this point is said to be germane (Part IX) assigns as error the action of the trial court in overruling defendant’s “objections” 2-11 to the court’s charge. An examination of defendant’s objections to the charge reveals that no objection was made concerning the trial court’s failure to submit an issue or issues relating to notice.

However, paragraph IX(12)(b) of the motion for new trial points out that the evidence concerning the date on which plaintiff discovered the defect in the potentiometers is conflicting and states that this conflict would have been resolved if the court had submitted defendant’s requested issue “W,” and that by “erroneously failing to” submit such issue the trial court “made it impossible for an appellate court to determine whether in fact notice” of the breach of warranty was given to defendant within a reasonable time.

The burden of alleging and proving proper notice was on plaintiff. Tex.Bus. & Comm.Code Ann. § 2.607(c)(1) (1968). As far as defendant is concerned, issues relating to notice must be classified as issues “relied upon by the opposing party.” Rule 279. Rule 279 provides that a failure to submit an issue shall not constitute reversible error unless its submission was requested in substantially correct form by the complaining party, except that where the omitted issue is one “relied upon by the opposing party” an objection to the omission of such issue shall be sufficient.

The question is whether defendant, who failed to “object” to the charge because of the omission of issues relating to timely notice of the alleged breach of warranty, is in a position to complain of the omission of such issue and thus preclude application of the rule that we must presume that the omitted issue was found by the judge in a manner which supports the judgment in favor of plaintiff.

It is generally said that “objections” and “requests for submission” are not alternative methods of complaining of the court’s charge. Stuckey v. Union Mortgage & Investment Co., 383 S.W.2d 429, 437 (Tex.Civ.App. — Tyler 1964, writ ref’d. n. r. e.). It is also generally stated that failure of the charge to include an issue presents no ground for reversal unless the complaining party objected to the charge because of its failure to include the issue relied on by the opponent. Texas Employers’ Insurance Ass’n v. Neuman, 379 S.W.2d 295 (Tex.1964).

In Stuckey it was said that the failure of the charge to include issues relied on by the opposing party can be ground for reversal only if complainant objected to the charge on the ground of omission of such issue. It was explained that the omission of issues relied on by the opposing party “can hardly be prejudicial to Appellants,” since they “would be better off if the Issues were never decided.” 383 S.W.2d at 438, supra.

A recognized authority on procedure has said, “An objection is necessary (and sufficient) to preserve complaint of the error in omitting one or more controlling issues which are necessary to submit completely the component elements of a theory of recovery or of defense relied upon by the opponent of the objecting party.” 3 McDonald, Texas Civil Practice § 12.27.1 (1970 rev.). There can be no doubt that the failure of the trial court to submit issues which are necessary to accomplish a complete submission of an opponent’s theory can be called to the court’s attention properly by mere objection pointing out such omission. This necessarily follows from the express provisions of Rule 279. But there is nothing in the Rule to support the conclusion that an objection is the only way of calling such omission to the attention of the trial court. Rule 279 requires tender of an issue in substantially correct form, but then goes on to provide that where the omitted issue is one relied on by the opposing party, an objection shall be sufficient. A statement to the effect that an objection is “sufficient” cannot be construed reasonably as a statement to the effect that an objection is “the sole method by which the error can be preserved.” All that the Rule says is that when the omitted issue is an issue relied on by the opponent, it shall not be necessary to tender an issue in substantially correct form. It does not say that in case of such an omission the tender of an issue in substantially correct form is insufficient. The purpose of the Rule is to place a more onerous burden on the party relying on the omitted issue than on the opponent. There is nothing in the language to indicate that a party who notes the omission of an issue relied on by his opponent cannot call the omission to the court’s attention by tendering the omitted issue for submission.

All of the cases which draw a sharp distinction between an objection and a request for submission of a tendered issue seem to involve situation where an issue or definition actually submitted is claimed to be defective. Thus, a mere request to submit a definition different than that proposed by the trial court cannot be considered as an objection specifically pointing out the defect in the definition submitted. Texas Employers’ Ass’n v. Jones, 393 S.W.2d 305 (Tex.1965). So, also, where a defectively framed special issue is contained in the court’s proposed charge, the tender of a correct issue is insufficient, since the tendered issue does not specifically and distinctly call the court’s attention to the vice in the proposed issue. Bell v. Missouri-Kansas-Texas Railroad Co. of Texas, 334 S.W.2d 513 (Tex.Civ.App. — Fort Worth 1960, writ ref’d n. r. e.).

In such cases, the complaint concerns the submission of a defective issue, not the failure to give an additional issue where there has been no withdrawal of the defective issue. Where the complaint does not relate to the form of an issue or issues actually submitted, but concerns the absolute failure to submit an issue relating to an essential element of the opponent’s case, the situation is obviously different.

Where a requested issue is merely different in form from an issue actually submitted, it can be argued persuasively that the tender of the differently worded issue does not, standing alone, call the trial court’s attention to the claimed defect in the proposed issue. But where the tendered issue is not a substitute for a proposed issue, but is a request to submit an issue not included in the proposed charge in any form, the mere tender of the omitted issue effectively calls the trial court’s attention to the omission. All that is required by Rule 279 is that the omission of an opponent’s issue be called to the attention of the trial court. An objection calling the court’s attention to such omission is sufficient. There is no basis for the conclusion that a request to submit the omitted issue is insufficient. If the omitted issue is one relied on by the party tendering the substantially correct issue, Rule 279 specifically provides that such tender is sufficient to call the omission to the court’s attention. Why should not a similar tender by the opponent be equally effective?

The statement in Neuman to the effect that failure to register an “objéction” to the court’s failure to submit an issue relied on by the opposing party precludes reversal because of such omission (379 S.W.2d at 296) has no application to the facts before us. In Neuman, plaintiff was seeking reversal because of the failure of the trial court to submit, at the request of defendant, an issue relied on by defendant. Plaintiff neither objected to the omission nor requested the submission of the omitted issue. In effect, plaintiff, who had remained mute during the trial, sought to reverse the trial court’s judgment because the trial court had refused to submit an issue requested by the opponent. The holding to the effect that the denial of defendant’s request could not be relied on by plaintiff as a ground for reversal is obviously correct. An appellant must rely on rulings adverse to him, not on rulings adverse to appellee.

The issue requested by defendant sufficiently called the trial court’s attention to the fact that the charge contained no issues relating to notice. It cannot be interpreted as merely an expression of dissatisfaction with the wording or form on a submitted issue or definition.

We conclude that the tender of an omitted issue is sufficient to call the trial court’s attention to the omission, even when the omitted issue is one relied on by the opponent of the party making the request for submission. We are, therefore, precluded from presuming that the omitted issue was found by the trial court in favor of plaintiff.

By way of cross-point, plaintiff complains of the action of the trial court in disregarding that portion of the damage issue awarding plaintiff $55,666.00 as compensation for damage to good will and lost profits.

There is no evidence in the record before us supporting the conclusion that the profits allegedly lost by plaintiff were due to defendant’s breach of warranty. The evidence establishes that at the time the problem with the potentiometers occurred, there was a marked decrease in sales in all facets of the aviation industry. Plaintiff’s president testified that he “felt” that the potentiometer problem caused a loss in sales. No effort was made to allocate any portion of the decrease in sales to defendant’s breach, as distinguished from the generally depressed state of the aviation industry at the time. Plaintiff’s president testified that part of the drop in sales was due to loss of certain government contracts, and part to the potentiometer problem. This is insufficient to support any finding, stated in dollars and cents, of loss due to defendant’s breach.

With reference to loss of good will, there is no evidence indicating that plaintiff lost any customers because of the potentiometer problem. There is no evidence suggesting that the decline in plaintiff’s sales was reflected in increased sales by any competitor. There were, of course, many complaints concerning the functioning of the metering devices, but the evidence reflects that such complaints were honored. Plaintiff’s president admitted that no customer had ever indicated that, because of the potentiometer problem, he would refuse to do business with plaintiff in the future. On the basis of the record before us, plaintiff’s cross-point is without merit.

The judgment of the trial court is reversed and the cause is remanded for a new trial on all the issues.

KLINGEMAN, Justice

(concurring).

I concur in the result.


author: CADENA, Justice.

text:
    Glenda Sue KING, Appellant, v. Leland Andrew KING, Appellee.
    No. 15643.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 8, 1976.

      Jeff Davis, San Antonio, for appellant. Robert F. Nelson, San Antonio, for appel-lee.
   CADENA, Justice.

This appeal is from a judgment rendered in a divorce suit in which plaintiff, Glenda Sue King, sought (1) a divorce from defendant, Leland Andrew King; (2) an order appointing her managing conservator of a minor child, Misty Lynn King, allegedly born to plaintiff and defendant; and (3) an order compelling defendant to contribute to the support of such minor child. The trial court entered judgment that plaintiff take nothing, and plaintiff assigns as error the failure of the court to appoint her managing conservator of the minor and to compel defendant to contribute to the support of such child.

Plaintiff’s petition alleged the existence of a common law marriage between her and defendant. According to the petition, the common law marriage took place on July 3, 1974, the parties finally separated on December 20, 1974, and the child was born on April 11, 1975.

The judgment of the trial court that plaintiff take nothing is based on the conclusion that plaintiff and defendant did not at any time enter into a ceremonial or common law marriage.

The case is before us without a statement of facts, and plaintiff does not contend that the finding by the trial court that plaintiff and defendant were never married is not supported by the evidence.

In view of the unchallenged finding to the effect that plaintiff and defendant never entered, or attempted to enter, into marriage, it is clear that the minor is not the legitimate child of defendant under § 12.-02(a) or § 12.02(b) of Tex.Family Code Ann. (1976 Supp.). There is no contention that defendant’s paternity has been established under §§ 13.21-13.24 of the Family Code (1976 Supp.). Therefore, it cannot be claimed that the minor is the legitimate child of defendant under § 12.02(c).

Plaintiff correctly insists that defendant, if he is the biological father of the child, is liable for its support even though the child is not his legitimate child. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Included among the “conclusions of law” filed by the trial court are statements to the effect that plaintiff is the sole parent of the child and that defendant’s paternity has not been established under the provisions of §§ 13.01-13.09, Tex. Family Code Ann. (1976 Supp.).

The trial court concluded that it could not, in the absence of pleadings substantially complying with §§ 13.01-13.09 of the Family Code, enter judgment decreeing defendant to be the father of the child, creating the parent-child relationship between defendant and the child, ordering defendant to contribute to the support of the child. Even if it be assumed that the pleadings in the case are sufficient to raise the issue of paternity, we are faced with the finding to the effect that defendant’s paternity has not been established. In the absence of a statement of facts, we must presume that this statement finds support in the evidence.

Plaintiff contends that defendant admitted that he was the biological father of the child. This contention is based on a recital in the findings of fact to the effect that when defendant was asked whether he was the biological father of the child, he denied that the marriage relationship had ever existed between him and plaintiff, but that he did not affirmatively deny that he was the biological father of the child. The answer to the question may properly be described as evasive, but it falls short of constituting a judicial admission of paternity-

Since the trial court found that plaintiff is the sole parent of the child, there is no other person who can claim any rights or powers with respect to the child. Under the provisions of § 14.01(a) of the Family Code, the appointment of a managing conservator is within the discretion of the trial court unless the court finds that the parents are, or will be, separated. Under the circumstances of this case, the trial court did not abuse its discretion in refusing to appoint plaintiff managing conservator. As the sole parent of the child she has all the rights and powers with respect to the child, exclusive of the claims of any other person, with which she would be vested as the result of being appointed managing conservator.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Harry A. GARRISON, Appellant, v. Lillian C. GARRISON (Pruitt), Appellee.
    No. 12472.
    Court of Civil Appeals of Texas, Austin.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.

      John W. Benbow, Benbow & Gross, San Antonio, for appellant.
    James F. Gardner, William W. Sommers, Gardner, Ferguson & Associates, San Antonio, for appellee.
   PHILLIPS, Chief Justice.

This is an appeal from a proceeding of contempt which we must dismiss for want of jurisdiction.

A final divorce decree between the parties hereto was entered in May of 1975. The decree awarded Lillian Garrison, appel-lee, 25 percent of the gross military monthly retirement pay after taxes, together with 25 percent of any increase or decrease of the gross military monthly retirement pay subsequently added to or deducted from the retirement pay of Harry Garrison, appellant, and ordered the appellant to deliver to appellee on a monthly basis, her share of these benefits. Said payments were made retroactive to October, 1974. Appellant failed to pay appellee anything from October, 1974 to October, 1975. It- was only after a writ of garnishment had been obtained that he made a lump sum payment to appellee of the arrearage. Then in December of 1975, the trial court heard the motion for contempt brought by the appel-lee herein due to appellant’s refusal to pay her that portion of the benefits due. At the time of this hearing, however, appellant had paid appellee the amount due her and was current in his payments.

In his judgment of contempt, after stating the facts set out above, the trial court found appellant in contempt and ordered appellant: “. . , that with respect to future payments due under the judgment of May 5, 1975, that it is in the interest of the parties and the court that this court have reasonable assurance that the Cross-Respondent Harry A. Garrison will continue to purge himself of his contempt of the court and comply with, the judgment of the court.” The court then ordered appellant to execute and to keep in full force and effect with the military authorities an allotment order directing the Department of the Air Force to pay appellee on a monthly basis the 25 percent of his retirement income as outlined above.

Appellant has attacked this judgment by points of error indicating that the trial court exceeded its authority in the contempt proceeding by ordering appellant to execute the abovementioned allotment claiming the said order amounted to an unlawful attempt by the court to amend a final decree of divorce.

The appellant also complains as error that the contempt order was illegal in that appellant was not in contempt at the time of the hearing because, at that time, he was current in his payments. Appellant further contends that the only method open to the trial court enforcing compliance with the divorce decree is: “by a contempt order against appellant predicated upon the terms of the divorce decree under authority contained in Article 1911a, V.A.T.S., and the Appellee’s Pleadings.”'

Ex Parte Britton, 127 Tex. 85, 92 S.W.2d 224 (1936), holds that a court having jurisdiction of the parties and the res of the litigation, has the undoubted authority to order the surrendering of property held by the defendant. Ex Parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961).

Appellant’s contention that the powers of the trial court in enforcing its contempt decree are strictly limited to the provision of Article 1911a, V.A.T.S., is untenable, as the power executed here is incident to its jurisdiction to enable it to compel due obedience to its judgments, orders and process. Ex Parte Gonzalez, 111 Tex. 399, 238 S.W. 635 (1922). The evidence before the court clearly indicated that appellant’s past conduct was a harbinger of future failure on his part to abide by the mandate of the divorce decree.

Nor are we impressed by the fact that appellant was current in his payments at the time that the Court heard the proceeding in contempt. The payment of the funds prior to the hearing does not discharge the past contemptuous conduct on the part of the appellant which gave rise to the probability of further contemptuous conduct in the future.

It has been the well-settled law of this State since State v. Thurmond, 37 Tex. 340 (Tex.1872), that the appellate courts of this State have no jurisdiction to review contempt proceedings and that the only manner in which such a proceeding and judgment can be reviewed is by means of habeas corpus. Tims v. Tims, 204 S.W.2d 995 (Tex.Civ.App.1947, writ ref.). Cases cited by appellant to demonstrate that the trial court’s judgment in contempt was an attempt to amend its prior divorce decree which had become final are not in point. These cases present a narrow exception to the general rule and are concerned only with a contempt decree modifying or changing a prior divorce decree pertaining to child custody. The courts there were of the opinion that absent appropriate pleadings and proof, the trial court may not extend the scope of contempt proceedings and by its order modify or reform previous orders of the court affecting child custody. In this connection, see Livingston v. Nealy, 382 S.W.2d 511 (Tex.Civ.App.1964, writ ref. n. r. e.).

It should be added that the record indicates that appellant complied with the order of the court thus purging himself of contempt. This makes the questions on appeal moot.

The appeal is dismissed for want of jurisdiction.

      . Seber v. Glass, 258 S.W.2d 122 (Tex.Civ.App.1953, no writ): Martin v. Martin, 519 S.W.2d 900 (Tex.Civ.App. 1975, no writ) and 523 S.W.2d 252 (Tex.Civ.App. 1975, no writ).


author: SHANNON, Justice.

text:
    S. B. SCHUSTER, Appellant, v. Leslie O. REID et ux., Appellees.
    No. 12480.
    Court of Civil Appeals of Texas, Austin.
    Dec. 8, 1978.
    R. Douglas Muir, Eskew, Brady & Wom-ack, Austin, for appellant.
    No brief for appellees.
   SHANNON, Justice.

Appellees, Leslie O. Reid and wife, Nancy, filed suit in the district court of San Saba County against S. B. Schuster, appellant, to quiet title to a tract of land. The district court granted appellees’ motion for summary judgment. We will reverse the judgment and remand the cause.

Appellees pleaded that they held fee simple title to 5.32 acres of land in San Saba County which they occupied as their homestead. Appellees also alleged that appellant filed an abstract of judgment in the judgment records of San Saba County. The judgment was for $9,680 and was in favor of appellant against appellee, Leslie O. Reid. Appellees pleaded, in addition, that the judgment purported to fix a lien on the land, but that the lien was void and ineffective because the land was their homestead. Appellees averred that appellant’s judgment was not one for purchase money of the land, for taxes owing on the land, or for work or materials used in constructing improvements to the land.

Appellees declared further that they entered into a contract for the sale of the land. The prospective purchaser’s attorney listed appellant’s judgment as an objection to the title of the land, and the purchaser refused to consummate the sale unless the cloud on the title was removed.

Summary judgment proof consisted of several affidavits. In their affidavits ap-pellees swore to facts showing the value of the land and showing appellees occupied the land as their homestead. Appellees also swore to legal conclusions that appellant’s judgment was “. . . neither for purchase money of the [land] nor for taxes owing on said property nor for work or materials used in constructing improvements to said real property.” One affidavit was executed by the attorney who examined the title for the prospective purchaser of the land. The attorney stated that he discovered the judgment against Reid, that he advised his client the judgment constituted a cloud upon the title of the land, and that he would require the cloud to be removed before he would approve title.

Appellees did not attach to or serve with the motion for summary judgment a verified or certified copy of appellant’s judgment and abstract of judgment. Likewise, a copy of that judgment was not attached to appellees’ petition as an exhibit.

As previously written, the district court entered a summary judgment in appellees’ favor. The judgment provided that because the land was appellees’ homestead, appellant’s judgment was void and ineffective as a lien on the land.

Appellant claims, among other things, that the judgment should be reversed because the summary judgment record contains no copy of appellant’s judgment or abstract of judgment. Appellant says that appellees’ mere reference to the judgment and the abstract of judgment in their petition and in the affidavits does not comply with Tex.R.Civ.P. 166-A(e).

Texas R.Civ.P. 166-A(e) requires verified or certified copies of all papers or parts thereof referred to in an affidavit to be attached to or served with the motion for summary judgment.

In Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961), the Court held:

“We hold, however, that a compliance with Rule 166-8(e) [sic ] required that the certified copies of the documents referred to should be attached to the motion. There were no papers, records, or other documents from said Cause No. 58-68 attached to the motion by either sworn or certified copies. Since the matters referred to were court records, certified copies should have been attached to the motion; therefore, defendants had not complied with the provisions of Rule 166-A and were not entitled to a summary judgment.”

The rule in Gardner v. Martin, supra, has been observed and followed in later cases. Boswell v. Handley, 397 S.W.2d 213 (Tex.1965); Langdeau v. Dick, 356 S.W.2d 945 (Tex.Civ.App.1962, writ ref’d n. r. e.); Gist v. Stamford Hospital District, 541 S.W.2d 510 (Tex.Civ.App.1976, no writ).

It is true that appellant did not specially except to the affidavits on the basis that verified or certified copies of the judgment and abstract of judgment were not attached or served. The Supreme Court in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962), held that one must specially except or else waive complaint of his adversary’s failure to comply with Rule 166-A(e) by not attaching or serving a verified or certified copy of the instrument. In Youngstown, however, the instrument referred to in the affidavit appeared in the summary judgment record as an attachment to the defendant’s answer.

The case at bar presents a different situation from that presented in Youngstown. Here there was no attempted incorporation of the judgment or abstract of judgment by reference to copies of those instruments attached to a pleading in the summary judgment record. As noticed before, no copies of the judgment or abstract of judgment were attached to appellees’ petition. Those papers simply were not in the record. Boswell v. Handley, supra.

In addition, appellees’ conclusions in their affidavits concerning the contents and nature of appellant’s judgment do not constitute competent evidence to support the summary judgment. Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.1972); Crain v. Davis, 417 S.W.2d 53 (Tex.1967).

Because appellees did not discharge their burden of showing that they were entitled to judgment as a matter of law, the summary judgment is reversed and the cause is remanded to the district court.

Reversed and Remanded.


author: O’QUINN, Justice.

text:
    Joyce HUTCHINS, Appellant, v. The TEXAS REHABILITATION COMMISSION et al., Appellees.
    No. 12452.
    Court of Civil Appeals of Texas, Austin.
    Dec. 8, 1976.
    Keith 'Short, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellant.
    John L. Hill, Atty. Gen. of Texas, Colin J. Carl, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

The opinion of this Court heretofore filed in this cause is withdrawn, and the following opinion is filed in lieu of the first.

By this action petitioner, Joyce Hutchins, seeks by mandamus to compel disclosure of certain records held by the Texas Rehabilitation Commission. Petitioner is a former patient of the Rehabilitation Commission and asserts that the records must be provided her under authority of the Texas Open Records Act.

The facts of this case do not appear to be in dispute. For approximately twenty years Joyce Hutchins received services from the Texas Rehabilitation Commission. In 1974 she commenced efforts to obtain her records by requesting them in accordance with the provisions of the Open Records Act. The Commission refused to disclose the records to petitioner after the Commission determined, in its own opinion, that the information was exempt from disclosure. The Commission made no attempt to request an Attorney General’s opinion to determine whether such records are exempt from disclosure, as authorized by the Act. (Art. 6252-17a, sec. 7).

Petitioner brought this action to compel the Commission to open the records for her inspection under authority of Section 8 of Article 6252-17a. The trial court denied the writ, and from that order petitioner brings this appeal.

No findings of fact were requested and none was filed.

Under the first point of error petitioner contends the trial court erred in ruling that the information sought is confidential. Petitioner contends that the information sought does not fall within any exception to the disclosure requirements of the Open Records Act.

The Open Records Act became effective in 1973 with the express purpose of making public any information collected, assembled or maintained by governmental bodies. It provides:

“All information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public during normal business hours . . . with the following exceptions only: (1) information deemed confidential by law, either Constitutional, statutory, or by judicial decision; * * ” Art. 6252-17a, sec. 3(a)(1).

The Act, in Section 3, proscribes sixteen exceptions to public disclosure of information. Respondents contend that the first exception (quoted above) prohibits disclosure of the desired records to petitioner. More specifically, respondents contend that Section 30.47 of the Texas Education Code falls within this exception, thereby barring disclosure to a former patient as well as to the general public. Section 30.47 states, in pertinent part:

“It shall be unlawful, except for purposes directly connected with the administration of the rehabilitation program and in accordance with regulations, for any person or persons to solicit, disclose . or make use of any list of, or names of, or any information concerning, persons applying for or receiving rehabilitation, directly or indirectly derived from the records.” (Added to the Code by Acts 1971, 62nd Leg., p. 1525, ch. 405, sec. 52, eff. May 26, 1971).

In rebuttal, petitioner urges that Section 30.47 applies only to the general public having no legitimate interest in those records, whereas a patient has a legitimate interest in, and a right to inspect, the patient’s own medical records.

Petitioner thus claims that her individual status as a former patient, seeking to inspect her own medical records, places her in a special status, which circumvents the confidentiality and the prohibition against disclosure under Section 30.47. Based on this special status and circumstance, petitioner further claims that under authority of the Open Records Act she is entitled to inspection of her own records, not because of her status as a member of the general public, but by reason of her individual status as a former patient with whom the requested records are concerned. We do not agree with these contentions.

Beyond a public right derived under the Open Records Act, petitioner argues further that a former patient has a common law right to inspect his or her own records. We agree with this contention.

Based on individual status, such a common law right to inspect the person’s own records would overcome the presumption of confidentiality and the prohibition of record disclosure in Section 30.47 of the Texas Education Code.

The Supreme Court’s recent decision, construing the Texas Open Records Act with respect to certain information sought from records of the Industrial Accident Board, does not in our opinion require a conclusion different from that reached in this cause. See Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex.1976). Both the majority of the Supreme Court and the dissenting justices appear to recognize in the Open Records Act a strong preference for disclosure over confidentiality. But the majority, in three separate statements, made clear that the individual may not gain right of access and inspection based on special individual status, concern, or circumstances, rather than on status as a member of the general public.

At page 674, the Supreme Court said: “We think the Act itself makes clear that the motives of the person requesting information are not to be considered in determining whether the information must be disclosed. The legislative intent of making public information available to any person would be thwarted if a court were allowed to consider the requestor’s motives even though the custodian may not do so.” (Emphasis by Supreme Court; footnotes omitted)

And, at page 685, the Court said:

“We should make clear that the particular interest of the requestor, and the purposes for which he seeks the information, are not to be considered in determining whether the matter requested is of legitimate concern to the public, except insofar as the requestor’s interest in the information is the same as that of the public at large. As we have stated above, the Act makes clear that the motives of the individual requestor are not relevant to the determination of whether the matter requested is ‘public information.’ ”

At page 686, the Court added:

“Our conclusion, however, is that the Act prohibits consideration of the motives of the requesting party in determining whether information must be disclosed.”

We hold that petitioner cannot gain access to her records under authority of the Open Records Act, but does have a common law right to inspect her own records.

This Court has held previously that state hospital records, though not available for inspection by the general public, are subject to'inspection by a former patient. Morris v. Hoerster, 377 S.W.2d 841 (Tex.Civ.App. Austin 1964, no writ); Morris v. Hoerster, 348 S.W.2d 642 (Tex.Civ.App. Austin 1961, writ ref. n.r.e.). Decisions in other cases have upheld this right: Pyramid Life Ins. Co. v. Masonic Hospital Ass’n. of Payne Co., 191 F.Supp. 51 (W.D.Okl.1961) (holding that a patient has a property right in the information appearing or portrayed on the hospital records); 66 Am.Jur.2d Records and Recording Laws, sec. 28 at 360 (1973); Van Allen v. McCleary, 27 Misc.2d 81, 211 N.Y.S.2d 501 (1961); Glazer v. Department of Hospitals, 2 Misc.2d 207, 155 N.Y.S.2d 414 (1956); Mass. Mut. Life Ins. Co. v. Michigan Asylum, 178 Mich. 193, 144 N.W. 538 (1913); Palacios v. Corbett, 172 S.W. 777 (Tex.Civ.App. San Antonio 1915, writ ref.).

Under the Mental Health Code (Article 5547-87 (1958), V.A.T.S.) a mental patient’s records are declared to be confidential. Yet the patient has a right to consent to disclosure of the records. It would make little sense to say that a person receiving rehabilitation services may not inspect the person’s own records although a mental patient may disclose his records to whomever he desires.

Respondents argue that Section 30.47 of the Texas Education Code applies to petitioner because it proscribes release of information to any person. This contention overlooks the rule that statutes “in derogation of the common law right of inspection should be strictly construed . .’’In re Mosher, 248 F.2d 956, 45 C.C.P.A. 701 (1957).

Section 30.47 of the Texas Education Code recognizes the right of privacy regarding records of the Texas Rehabilitation Commission, but in this cause considerations of confidentiality are not applicable and are not in issue, since petitioner seeks • the records for herself alone and does not undertake to make the information available to the public. Obviously, the purpose of Section 30.47 of the Texas Education Code is to protect the privacy of a patient by barring disclosure to the general public having no legitimate interest in those records. Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973). Although it does prohibit inspection of those records by the general public, Section 30.47 does not preclude the patient from waiving that right of confidentiality if the person so desires. Nor does it preclude inspection by the patient who, solely by that person’s status as a patient, has a legitimate interest in the contents of those records.

We hold that petitioner based on her common law right of inspection is entitled to access to her own records in files of the Rehabilitation Commission.

Petitioner is entitled to such relief as will provide her access to her records, in this case relief through mandamus. Relief may be based on petitioner’s general prayer for relief. City of Austin v. Cahill, 99 Tex. 172, 88 S.W. 542 (1905); San Antonio v. Alamo National Bank, 155 S.W. 620 (Tex.Civ.App. —San Antonio 1913, writ ref.); White v. Calaway, 282 S.W. 642 (Tex.Civ.App. — Fort Worth 1926, writ ref.); 37 Tex.Jur.2d 768, Mandamus § 110 (1962).

Judgment of the trial court denying the writ is reversed, and judgment is rendered granting the writ of mandamus.

Reversed and Rendered on Motion for Rehearing.

      . Article 6252-17a (1975), V.A.T.S.; Acts 1973, 63rd Leg., p. 1112, ch. 424, eff. June 14, 1973 (Sec. 14(e) added by Acts 1975, 64th Leg., p. 809, ch. 314, sec. 1, eff. May 27, 1975).


text:
    Dr. Arnold ALBERT, Appellant, v. KIMBELL, INC., Appellee.
    No. 15649.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 8, 1976.

      Glennie Gorton Baker, San Antonio, for appellant.
    Robert L. Kelly, Groce, Locke & Hebdon, San Antonio, for appellee.
   CADENA, Justice.

Plaintiff, Dr. Arnold Albert, appeals from an order of a district court of Bexar County, sustaining the plea of privilege filed by defendant, Kimbell, Inc., a Texas corporation, and transferring plaintiff’s suit against defendant County, the county of defendant’s domicile.

The sole question is whether venue is maintainable in Bexar County under Subdivision 14 of our general venue statute, Article 1995, Tex.Rev.Civ.Stat.Ann. (1964), which provides that suits for the recovery of damages to land must be brought in the county in which the land is situated.

Whether or not a suit is one for the recovery of damages to land is determined by reference to plaintiff’s pleadings. 1 McDonald, Texas Civil Practice § 4.22.4, p. 494 (1965 rev.).

In his petition plaintiff alleged that Roberto Ortega, who was named as a defendant but who did not file a plea of privilege, while driving a truck belonging to Kimbell in a southerly direction on U. S. Highway 281 in Bexar County “adjacent to Plaintiff[’s] . . . property known as 16196 Highway 281 South, San Antonio, Texas,” negligently struck a vehicle owned by James Talley “and rammed the truck, a tractor trailer[,] into a fence owned by the Plaintiff, demolishing it, causing a great gap in the inclosure where Plaintiff’s cattle were grazing.” The petition contained the necessary allegations relating to proximate cause.

Plaintiff alleged that “as a result of the occurrence in question,” he was required “to rebuild his fence for a considerable length and to reinforce the entire fence in that area.” It was also necessary for him to employ workers to round up his cattle which were in the damaged enclosure and move such cattle elsewhere for grazing purposes. It was also necessary for plaintiff to purchase feed for the cattle and to “spend money cleaning up the grounds” because the truck was being used for the transportation of foodstuffs. In his controverting affidavit filed in answer to the plea of privilege, plaintiff asserted that venue is maintainable in Bexar County under Subdivision 14 because such subdivision “allows exceptions when personal property such as a fence involved in this accident in question was damaged as well as land damage, and is located in the county where suit has been filed.” (Emphasis added.) The controverting affidavit incorporated in full all allegation's embodied in plaintiff’s petition and asserted that such allegations were true and correct.

A fence may or may not be part of the realty. It may be that allegations of damage to a fence located on land which is used for the purpose of grazing cattle is sufficient to constitute an allegation of damage to a part of the realty to bring the case within Subdivision 14. But we need not decide this point. In his controverting affidavit plaintiff specifically describes the fence in question' as “personal property.” There are no allegations in the petition concerning damage to land once the allegation of damage to the fence is viewed, in view of the controverting affidavit, as an allegation of damage to personal property. An action to recover damages for injury to personal property located on land cannot be classified as a suit to recover for damages to land.

The trial court properly sustained the plea of privilege.

The judgment of the trial court is affirmed.

      . The controverting affidavit also invoked Subdivisions 9a and 10 of Article 1995, but in his brief filed in this Court plaintiff relies solely on Subdivision 14.


author: OSBORN, Justice.

text:
    Mary SCHAPPELL, Appellant, v. Robert Nathaniel SCHAPPELL, Appellee.
    No. 6546.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.
    Johnson, Allen & Aycock, P. C., James T. Allen, El Paso, for appellant.
    Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Donald F. Hagans, II, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This appeal in a divorce case involves only the issue of the right of the trial Court to divide the Appellee’s military retirement benefits where there was less than twenty years’ service at the time of the divorce. Having concluded that the trial Court should have considered and divided such benefits, we reverse and remand the case for disposition of this one issue.

The parties were married in December, 1951, and divorced in January, 1976. They have three children, one who is still a minor. The Appellee is a Chaplain in the Army with a rank of Lieutenant Colonel, and he had completed over eighteen years of service at the time of the divorce. He has an ecclesiastical indorsement from the Episcopal Church which, he testified, if withdrawn would terminate his service in the active duty reserves. The Appellee acknowledged that, after eighteen years on active duty, under usual circumstances he could not be eliminated from the service prior to completing twenty years for retirement purposes. In addition, an officer from the Judge Advocate General’s Corps testified that once an officer had eighteen years’ service, he could not be reduced in grade and could not be eliminated from the service, except for some action on his part such as misconduct or a resignation, if it be accepted. There was also testimony that twenty years’ service was required for retirement purposes. The trial Court granted the divorce, divided the community property, ordered Appellee to pay child support, and concluded that the retirement benefits were not vested and could not be divided between the parties. We conclude that the trial Court erred in not dividing the military retirement benefits.

The evidence clearly established that once an officer completes eighteen years of service, military regulations guarantee his right to two more years’ service so that he may fully earn his retirement benefits, the only exception being his own misconduct or his determination to terminate his service by resignation. Many cases have considered the issue of whether a trial Court may divide military retirement benefits, and they have basically concluded that absent twenty years’ service at the time of the divorce there is no vested property right to divide. Understandably, the trial Court followed those decisions. In Miser v. Miser, 475 S.W.2d 597 (Tex.Civ.App. — Dallas 1971, writ dism’d), the Court in a well reasoned opinion reached a just result by holding that an airman, who had completed eighteen and one-half years’ service at the time of the divorce and who had an enlistment which required him to complete more than twenty years’ service, was subject to having the trial Court divide his military benefits, when, if, and as payments are received by him. The same results were reached by the trial Court, but reversed by the Court of Civil Appeals in Cearley v. Cearley, 536 S.W.2d 96 (Tex.Civ.App. — Austin 1976, writ granted). In Davis v. Davis, 495 S.W.2d 607 (Tex.Civ.App. — Dallas 1973, writ dism’d), the Court said “ * * * we adhere to our decision in Miser * * * ” but they refused to extend the holding to include benefits of an officer who had only served eight and one-half years in the service.

In Lumpkins v. Lumpkins, 519 S.W.2d 491 (Tex.Civ.App. — Austin 1975, writ ref’d n. r. e.), the husband, a Lieutenant Colonel, had completed nineteen years’ service at the time of the divorce, and the trial Court was of the opinion that, in order to effect a fair and equitable division of the estate, it would have been necessary to have set aside to the wife a portion of the retirement benefits being earned by the husband. But, the trial Court made no division of those retirement benefits and the judgment was affirmed. Chief Justice Phillips in his dissent said he would hold the retirement benefits were a part of the estate subject to division even though they had not, as yet, vested. No mention is made in that case of the fact that once the officer had served eighteen years, he was entitled to complete twenty years’ service and earn his retirement benefits.

We hold that where an officer or an enlisted person has reached that stage in service, where for all practical purposes retirement benefits are assured whether by military regulations or enlistment, military retirement benefits are a part of the community property subject to division by the Court in a divorce proceeding. Naturally, the part of the benefits to be divided must necessarily depend upon the number of years the parties were married and lived in a community property state while the one spouse was in the service. Point of Error No. One is sustained.

If we were in a position to write for the first time on the issue of military retirement benefits, we would hold that such benefits become vested immediately upon entry into the service, and that they are only earned and matured at the end of twenty years’ service. We find no other way to reach a fair and just result with an equitable division of the community assets.

In Lumpkins v. Lumpkins, supra, the wife of the man in the service for over nineteen years received nothing from the retirement benefits, although within less than a year those benefits had a value of $177,957.00. But had the wife been married to him the last nineteen years of twenty years’ service, rather than the first nineteen years, she would have been entitled to a substantial portion of such retirement benefits. In fact, had she only been married the last one year of his twenty years’ service, she would have been entitled to something. As it was, she got nothing. (In truth and in fact, it appears that the trial Court did indirectly what it could not do directly, since it gave the husband property worth about $12,000.00 and the wife property of a value in excess of $100,000.00. But, one must wonder what would have been the equitable division if the total community estate, excluding retirement benefits, had only been worth $1,000.00.) In Davis v. Davis, supra, the Court suggested that in order to avoid inequitable results, the Court granting the divorce could take into consideration facts concerning acquirement of a portion of military retirement benefits during marriage in order to enter a just and equitable decree. Obviously, such a recommendation was followed by the trial Court in the Lumpkins case. But, what is the trial Court to do where the community assets are $1,000.00 rather than $100,000.00? We find no direction from the Appellate Courts as to how the trial Court’s division is to be just and equitable under those circumstances, and certainly we are at a loss as to directions if prior decisions are to be followed.

In Payne v. Payne, 82 Wash.2d 573, 512 P.2d 736 (1973), the Supreme Court, En Banc, held that a trial Court decree entered in 1971 was erroneous when it did not divide military retirement benefits of an officer who still had over a year to serve to complete his twenty years’ service. That case and others, including Miser v. Miser, supra, and Davis v. Davis, supra, are considered at some length in a law review article in 50 Wash.L.Rev. 505 (1975) entitled “Community Property — Deferred Compensation: Disposition of Military Retired Pay Upon Dissolution of Marriage.” Also see: “Retirement Pay: A Divorce in Time Saved Mine,” 24 Hastings L.J. 347 (1973).

Since all of the military retirement benefits are being earned throughout the twenty years’ service, and the last day of the last year is no more important than the first day of the first year, those benefits should be recognized as a valuable property right, and should be considered as vested when the service begins and earned when the twenty years are completed. Such a rule is just as fair to the spouse married to a serviceman or woman, whether the marriage lasts for one year or nineteen years, and whether the marriage is at the beginning or at the end of the service period. Of course, if it be at some time other than the end of the twenty year period, retirement benefits should be calculated on the serviceman’s rank or grade at the time of the divorce and not on the basis of subsequent promotions. See 50 Wash.L.Rev. 505 at 525.

In those cases where a divorce is granted prior to the benefits being earned, i. e. twenty years service, it would appear to be preferable to require payments to be made when, if, and as the benefits are received. To do otherwise could result in an inequitable distribution of community property where the wife be awarded a sum equal to the present value of benefits yet to be earned and, because of death, resignation, or discharge, the required years of service are never completed and the benefits never earned. See 50 Wash.L.Rev. 505 at 532.

We believe to hold otherwise would, in most cases, result in “grossly inequitable results,” the very thing the dissenting justices were so concerned about in Busby v. Busby, 457 S.W.2d 551 (Tex.1970). Also see: “Military Retirement Benefits as Community Property — Busby v. Busby,” 27 Sw.L.J. 340 (1971), and “Military Retirement Benefits as Community Property: New Rules From The Supreme Court?” 24 Baylor L.Rev. 235 (1972).

In this case, we recognize that death, resignation or the loss of ecclesiastical indorsement may prevent the completion of twenty years’ service. Likewise, in the Miser case, death and discharge would have prevented the airman from completing twenty years’ service. But as between those unlikelihoods and the working of a gross injustice, we conclude that they are not so likely to occur as to prevent the division of a most valuable asset, when, if, and as it is received.

Based upon the decision in the Miser case, we believe a similar result should be reached in this case where an officer has a right under military regulations to complete twenty years of active duty service and thereby earn his retirement benefits. Whether a similar result will be reached in all cases involving servicemen and women must be left to our highest Court and perhaps the Legislature.

That part of the judgment of .the trial Court which provides that Mary Schappell take nothing insofar as Robert N. Schap-pell’s anticipated military retirement benefits are concerned is reversed and the case is remanded to the trial Court. In all other respects the judgment is affirmed.

ON MOTION FOR REHEARING

Subsequent to our original opinion in this case, the Supreme Court of Texas held in Cearley v. Cearley, 544 S.W.2d 661 (1976), that military retirement benefits “ * * * constitute a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate of the parties under Section 3.63 of the Family Code.”

The motion for rehearing is overruled.

      . Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App. —San Antonio 1968, writ dism’d); Webster v. Webster, 442 S.W.2d 786 (Tex.Civ.App. — San Antonio 1969, no writ); Davis v. Davis 495 S.W.2d 607 (Tex.Civ.App. — Dallas 1973, writ dism’d); Lumpkins v. Lumpkins, 519 S.W.2d 491 (Tex.Civ.App. — Austin 1975, writ ref'd n. r. e.); Bright v. Bright, 531 S.W.2d 440 (Tex.Civ.App. — San Antonio 1975, no writ); Cearley v. Cearley, 536 S.W.2d 96 (Tex.Civ.App. — Austin 1976, writ granted); Ables v. Ables, 540 S.W.2d 769 (Tex.Civ.App. — Waco 1976, no writ); Taggart v. Taggart, 540 S.W.2d 823 (Tex.Civ.App. —Corpus Christi 1976, writ granted).