author: McDONALD, Justice.

text:
    Mrs. Art S. HARPER et al., Appellants, v. Julia E. SPRINGFIELD, a widow, et al., Appellees.
    No. 6008.
    Court of Civil Appeals of Texas, Waco.
    Feb. 8, 1979.
    Rehearing Denied March 29, 1979.
    Jesse A. Pardue, Houston, John M. Hand, Hand & Anderson, Marlin, for appellants.
    Charles D. Marshall, Seabrook, for appel-lees.
   OPINION

McDONALD, Justice.

This is a partition suit involving a construction of the will of J. D. Erskine, who was stipulated to be the common source of title.

All facts are stipulated. J. D. Erskine executed his will in 1901. Sarah Elizabeth Springfield was his niece. Sarah Elizabeth Springfield was the mother of Thomas, Jesse, and James G. Springfield, who were her only children, and who were all living in 1901 when the will was executed and in 1906 when the will was probated. Thomas Springfield died in 1926; Jesse Springfield died in 1944; James G. Springfield died in 1949. Sarah Elizabeth Springfield died in 1958.

In March 1945 Sarah Elizabeth Springfield (and husband) purported to convey the entire property in dispute (100 acres in Limestone County) by General Warranty Deed to her only surviving son James G. Springfield; and such deed was filed for record in April 1945.

Appellees Julia Springfield and Mrs. Shirley Williams are the widow and only child of James G. Springfield.

Appellant Mrs. Art S. Harper is the only child of Thomas Springfield; and Appellants James J. Springfield and J. B. Springfield are children of and own all interest of Jesse Springfield.

Appellants James J. Springfield, J. B. Springfield and Mrs. Art S. Harper asserted an interest in the property and sought a partition. Appellees asserted ownership of the entirety of the property by virtue of the March 1945 deed of Sarah Elizabeth Springfield (and husband) to James G. Springfield, their husband and father.

The trial court (following the rule in Shelley’s case) decreed that by the will of J. D. Erskine title to the 100 acres of land here involved passed to Sarah Elizabeth Springfield in fee simple; that the deed from her and her husband in March 1945 conveyed the fee simple title to such property to James G. Springfield and that appel-lees Julia E. Springfield and Mrs. Shirley Williams as sole heirs of James G. Springfield are vested with the fee simple title to such real property, for which reason no necessity exists for partition.

Appellants Mrs. Art S. Harper and J. B. Springfield and James J. Springfield appeal contending:

1) The trial court erred in decreeing that by the terms of the will of J. D. Erskine a fee simple title to the land vested in Sarah Elizabeth Springfield.

2) The trial court erred in not decreeing that by the terms of the will of J. D. Erskine, Sarah Elizabeth Springfield was given only a life estate in and to the land, with a vested remainder devised to her children.

3) The trial court erred in decreeing fee simple title to the property to be in appel-lees.

4) The trial court erred in decreeing no necessity exists for a partition.

Pertinent portions of J. D. Erskine’s will provide:

SECOND
“I do give and bequeath to my beloved niece, Sarah Elizabeth Springfield and to the heirs of her body all my property, real personal and mixed, to have and to hold forever. My said beloved niece being raised by me from infancy and I having for her the affection of a father.”
FOURTH
“I will that my debts be paid out of the personal property, and that all real estate shall not be sold, but shall be inherited by the children of said Sarah Elizabeth Springfield at her death, and the title the children shall take at her death shall be a fee simple title.”
FIFTH
“Learning that some of the relatives of my deceased wife N. A. Erskine, are setting some kind of claim to a part of the land, I do will that they shall have none of the property * * * and as heretofore stated, I want none of my relatives, and none of her relatives to receive any part of my estate, but it all go to my beloved niece Sarah Elizabeth Springfield and her children.”

The question for determination is whether under J. D. Erskine’s will, Sarah Elizabeth Springfield received a life estate in the land with a remainder to her children, or whether she received a fee simple title to the land with right of disposition.

There is no contention made on behalf of any party that the will is ambiguous. We agree that it is not ambiguous. This being true the meaning of the will must be determined by the language used “within the four corners of the instrument”. The dominant purpose of the construction of a will is to ascertain the intention of the testator in the disposition of his estate. A will should be construed as to give effect to every part of it, if the language is reasonably susceptible of that construction. Republic National Bank of Dallas v. Fredericks, S.Ct., 283 S.W.2d 39. Calvery v. Calvery, Comm.Appls.Adopted, 122 Tex. 204, 55 S.W.2d 527; Alamo National Bank of San Antonio v. Daubert, CCA (Beaumont) NRE, 467 S.W.2d 555; Haile v. Holtzclaw, S.Ct., 414 S.W.2d 916; Van Hoose v. Moore, S.Ct., 441 S.W.2d 597. And where a will employs the words “bodily heirs” or “heirs of my body” and from the entire text of the will, it is shown the words were used in the sense of children, the words are words of purchase and not of limitation.

In the will before us, Mr. Erskine in paragraph SECOND bequeaths all of his property to “Sarah Elizabeth Springfield and to the heirs of her body”. In paragraph FOURTH he directed debts be paid out of the personal property “and that the real estate shall not be sold but shall be inherited by the children of Sarah Elizabeth Springfield at her death, and the title the children shall take at her death shall be a fee simple title”. And in paragraph FIFTH he states that relatives are to receive no part of his estate “but it all go to my beloved niece Sarah Elizabeth Springfield and her children”.

We think the testator used the words “heirs of her body” in the sense of “her children” in paragraph SECOND.

Since the testator in paragraph SECOND bequeathed all his property to Sarah Elizabeth Springfield and her children; and in paragraph FOURTH provided the land should not be sold for debts, but should be “inherited by the children of Sarah Elizabeth Springfield at her death, and the title the children shall take at her death shall be a fee simple title”, it is clear to us that he intended for Sarah Elizabeth Springfield to have a life estate in the land, and not a fee simple estate.

The trial court applied the rule in Shelley's case, and the words in paragraph SECOND “and to the heirs of her body” were interpreted as words of limitation resulting in a construction that Sarah Elizabeth Springfield took a fee simple title to the land under the will. See: Harrison v. San-Tex Lumber Co., CCA (San Antonio) NWH, 459 S.W.2d 502 which reluctantly applied the rule in Shelley’s case to the facts in that case with the comment: “There is no explanatory language in the will which would authorize us to say that the words ‘heirs of his body’ should not be read in their technical sense” (i. e. words of limitation).

In the case at bar the testator’s use in paragraphs FOURTH and FIFTH the words “children of Sarah Elizabeth Springfield” and “Sarah Elizabeth Springfield and her children” explains and qualifies the words “heirs of her body” used in paragraph SECOND. In so doing it is clear that the testator intended his niece Sarah Elizabeth Springfield to take a life estate in the land, and that her children take a vested remainder. Sybert v. Sybert, S.Ct., 254 S.W.2d 999. See also: Robinson v. Glenn, S.Ct., 150 Tex. 169, 238 S.W.2d 169.

Appellants’ points are sustained. The cause is reversed and remanded for partition under the construction of the will of J. D. Erskine herein.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    VALLEY MUNICIPAL UTILITY DISTRICT NO. 2 et al., Appellant, v. Joseph C. HILD, Appellee.
    No. 17271.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 8, 1979.
    Morris & Campbell, Rhett G. Campbell, Houston, Carter & Ellis, Joel William Ellis, Harlingen, for appellant.
    Fred Parks & Associates, Roland C. Kemp, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order denying a plea of privilege for the reason that it had been waived by the filing of a motion to quash citation which was heard and sustained prior to a hearing on the plea of privilege.

Rule 84, Vernon’s Texas Rules of Civil Procedure, provides:

“The defendant in his answer may plead as many matters_as he may think necessary for his defense,_and such pleas shall be heard in such order as may be directed by the court, special appearance and plea of privilege and the practice thereunder being excepted herefrom.”

The original rule required that the defensive matters be filed all at the same time and in due order of pleading and that all such pleas be heard “in such order under the direction of the court”.

It will be noted that the present rule eliminates the necessity of filing special pleas “in due order of pleading”. It permits the trial judge to direct the order in which these pleas are heard with the exceptions noted. The trial judge cannot direct that matters other than a special appearance be taken up before ruling on the plea of privilege. The rule does not specifically deny to the defendant the right to request a hearing on pleas, such as a motion to quash, prior to the hearing on the plea of privilege. The inclusion of the phrase “and the practice thereunder” in Rule 84, supra, indicates that by adopting the rule the Supreme Court did not intend to make any change in the plea of privilege practice.

Prior to the amendment of Rule 84 in 1962, it was well settled that the filing of a plea of privilege constituted an appearance for all purposes. O’Quinn v. Tate, 187 S.W.2d 241 (Tex.Civ.App.1945, writ ref’d.) If the plea of privilege is filed and urged prior to the filing of a motion to quash citation, the motion would be waived.

There are cases which hold that the urging of a motion to quash citation prior to the plea of privilege results in a waiver of the right to present the plea of privilege. Devereaux v. Rowe, 293 S.W. 207 (Tex.Civ.App.-San Antonio 1927, no writ history); Camden Oil Company v. Hohman, 476 S.W.2d 708 (Tex.Civ.App.-Beaumont 1972, no writ history); Starr Gas Company v. Employers Casualty Company, 436 S.W.2d 188 (Tex.Civ.App.-El Paso 1968, writ dism’d).

In Devereaux v. Rowe, supra, the court relied on Article 2048, Revised Civil Statutes of 1925, which provided that if the citation or service thereof is quashed on the motion of the defendant, the defendant shall be deemed to have entered his appearance to the succeeding term. The court pointed out that the statute did not provide that the defendant would be deemed to have been duly cited for the succeeding term but that he shall be deemed to have entered his appearance. The appearance is not a restricted one, but is a general appearance. The court then held that the defendant waived his plea of privilege by invoking the judgment of the court on citation or service in the case.

The more recent cases cited rely on the fact that the motion to quash is in the nature of a plea in abatement. This was the approach taken in Starr Gas Company v. Employers Casualty Company, supra. The court relied upon Crosby v. Heldt Brothers Trucks, 394 S.W.2d 235 (Tex.Civ.App.-San Antonio 1965, no writ history). However, in Crosby the court said that any action upon the part of a defendant which invokes the general jurisdiction of the court before filing his plea of privilege, other than certain preliminary motions not here involved, or unless the right to file his plea of privilege is reserved, constitutes an appearance and therefore a waiver of his venue rights. McDonald, Texas Civil Practice, Sec. 4.40 is cited in support of this statement. In the section cited, McDonald states that the plea of privilege will not be waived by urging certain preliminary motions including a motion to quash citation.

An appearance in a case by filing a motion or other pleading which would not have the effect of securing a ruling by the court on a matter affecting the merits of the case should not constitute a waiver of the right to present a plea of privilege. See: Holt v. Farmer, 56 S.W.2d 633 (Tex.Comm’n. App. [Sec. A] 1933, holding approved); O’Neal v. Texas Bank & Trust Co., 118 Tex. 133, 11 S.W.2d 791 (Tex.Com.App. [Sec. A] 1929, opinion adopted; Powell v. Goldsmith, 164 S.W.2d 45 (Tex.Civ.App.-Texarkana 1942, writ dism’d).

The cases are in substantial agreement that the prior presentment of a true plea in abatement will result in the waiver of the plea of privilege subsequently presented. Broome v. Smith, 265 S.W.2d 897, (Tex.Civ.App.-Galveston 1954, no writ history) [challenge to the jurisdiction of the trial court]; Westbrook v. Bradford, 429 S.W.2d 638 (Tex.Civ.App.-Austin 1968, no writ history) [plea in abatement and general denial]; McCay v. Arnold Company, 328 S.W.2d 890 (Tex.Civ.App.-Waco 1959, no writ history) [motion to dismiss]; Ware v. Texboro Cabinet Corp., 350 S.W.2d 47 (Tex.Civ.App.-Texarkana 1962, writ dismissed) [answer filed before plea of privilege]; Dyer v. Metallic Bldg. Co., 405 S.W.2d 119 (Tex.Civ.App.-Eastland 1966, no writ history) [original answer and plea of another cause pending].

These cases were cited in Camden Oil Company v. Hohman, supra, and Starr Gas Company v. Employers Casualty Company, supra, in the support of the holding that the filing of a motion to quash citation prior to the hearing on a plea of privilege resulted in a waiver of the plea of privilege.

Rule 122, Texas Rules of Civil Procedure, provides that if the citation or service thereof is quashed on motion of the defendant, the defendant shall be deemed to have entered his appearance at ten o’clock A.M. on the Monday next after the expiration of twenty days after the day on which citation or service is quashed, and such defendant shall be deemed to have been duly served so as to require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him. It will be noted that the present rule differs from Article 2048, Revised Civil Statutes of 1925, in that the present rule requires the defendant to appear and answer “at that time”. It would seem that this rule authorizes the filing of an answer including a plea of privilege after a motion to quash citation has been sustained. This is the view taken by the court in Donald v. Agricultural Livestock Finance Corp., 495 S.W.2d 592 (Tex.Civ.App.-Fort Worth 1978, no writ history).

No good purpose would be served by forcing a defendant to file a plea of privilege in a court until after it was determined that he was properly cited to appear therein and was required to make some sort of answer. The proper way to determine this question is to pass upon a motion to quash citation. Gulf Refining Co. v. Needham, 233 S.W.2d 919 (Tex.Civ.App.-Eastland 1950, no writ history).

The Utility District filed its motion to quash the citation and, subject thereto, its plea of privilege. The motion to quash was granted and, thereafter, the District filed another plea of privilege and, subject thereto, its answer. The trial court set the plea of privilege down for a hearing, and after hearing thereon, entered a judgment denying the plea of privilege for the reason that “such plea was not filed in due order, a motion to quash service having been filed prior to the filing of the plea of privilege, The court also recited that but for the defendant District’s aforesaid waiver of its plea of privilege, the plea of privilege would have been sustained.

The trial court erred in denying the plea of privilege for the reason that the filing of the motion to quash resulted in a waiver of the plea. Hawkins v. Gilger, 399 S.W.2d 203 (Tex.Civ.App.-Houston 1966, writ dism’d).

We consider the statement in the trial court’s order that but for the waiver the plea of privilege would have been sustained to be mere surplusage. This statement does not constitute a judgment sustaining the plea of privilege.

The judgment is reversed and the cause is remanded.


author: WARREN, Justice.

text:
    William Richard SWEARINGEN, Appellant, v. Mary Caroll SWEARINGEN, Appellee.
    No. 17305.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 15, 1979.
    Rehearing Denied March 22, 1979.

      L. A. Greene, Jr., and Duncan Neblett, Jr., Houston, for appellant.
    Lilly & Short, Earle S. Lilly, Houston, for appellee.
   WARREN, Justice.

William Richard Swearingen appeals from an adverse jury verdict naming Appel-lee Mary Caroll Swearingen, the Managing Conservator of the two minor children born of the marriage and of the trial court’s awarding an interest in the family home to Appellee.

In points of error one, two and three Appellant complains that the trial court did not fully protect the rights of the children, that it erred in failing to appoint an attorney ad litem and failed to order a social study.

The first point is too broad to be considered separately, but will necessarily be considered when discussing the remaining points of error.

There was no request made by either parties for the trial court to appoint an attorney or order a social study. The record reveals no circumstances which would cause a prudent trial judge to believe that such would be necessary, especially without a request. Sections 11.10(c) and 11.12(a) of the Family Code authorize the trial court to appoint an attorney ad litem and to order a social study respectively. These provisions are, however, permissive not mandatory. An abuse of discretion is not shown. De Lipsey v. De Lipsey, Tex.Civ.App., 369 S.W.2d 828.

Appellant’s fourth and fifth points of error complain of the trial courts granting a motion in limine on behalf of Appellee and in refusing to grant one requested by the Appellant.

When the evidence was introduced by Appellee at the trial concerning the matters of which Appellant sought to exclude in his motion in limine, no objection was made. Conversely, Appellant proffered no testimony at trial concerning the matter on which the court had sustained Appellee’s motion in limine.

The Supreme Court of Texas in Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331 (1963) stated the well recognized rule regarding the preservation of error when confronted with an adverse ruling on a motion in limine.

“If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were in fact asked or offered. If they were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal. In neither case —(1) questions not asked or evidence not offered, or (2) questions asked or evidence offered — should the error of the trial court in overruling the motion in limine be regarded as harmful or reversible error.”

In neither example did Appellant herein preserve error.

Point of error, six claims error by the trial court in admitting testimony concerning the “tender years” concept, claiming this testimony to be in violation of Section 14.01, Texas Family Code, which requires the court (or jury) to consider the qualifications of the respective parents without regard to the sex of the parent. No objection by Appellant was made to the introduction of this testimony nor was any motion made to have the court instruct the jury to disregard the testimony. No error was preserved, if such testimony was in fact error.

In his seventh point of error appellant claims the trial court erred in admitting opinion evidence from a witness (Janice Armstrong) who was not qualified as an expert. No objection was made to her giving opinion evidence. However, Mrs. Armstrong testified that she had earned a Masters of Art Degree in Religion from Yale Divinity School specializing in ministries and families and that she had directed continuing education conferences for professionals while there; that she had founded and directed Childrens’ Resource and Information Services, had done post graduate clinical training; worked with the La Neer Operating Foundation concerned with emotional disturbances in children, and had membership in the International Transactional Analysis Association and the American Marriage and Family Life Association.

Expert testimony is the testimony of persons who are particularly skilled, learned or experienced in a particular art or science, trade, business, profession or vocation, a thorough knowledge of which is not possessed, in regard to matters connected therewith, by persons in general. Am.Jur. Evidence § 764.

Whether or not a person offered as an expert possesses required qualifications is within the discretion of the trial judge and his ruling will not be reviewed in the absence of clear abuse. Rhinetubes, Inc. v. Norddeutscher Lloyd, 335 S.W.2d 269 (Tex.Civ.App. writ ref. n. r. e.). The trial court had ample justification to allow the opinion testimony, particularly in the absence of an appropriate objection.

On a motion for new trial, appellant produced witnesses, some of whom had testified at the trial. The only witnesses whose testimony were not cumulative was L. J. Alexander, a juror, who testified that if he believed appellee had had an affair during the marriage he could have changed his mind (verdict), a private detective who gave testimony intimating sexual misconduct by appellee after separation of the parties and Joan Caldwell of Homes of St. Mark, an adoption agency, who rebutted testimony given by Mrs. Armstrong at the trial. None of the evidence was shown to be newly discovered or even unavailable at the time of trial except of course that of the juror. Generally the hearing on the motion for new trial was merely a continuation of the trial. This testimony presents no grounds for a new trial.

In order to require the granting of a new trial or ground of newly discovered evidence, movant must show (1) the existence of newly discovered evidence (2) that he had no notice of the existence of such evidence prior to trial (3) that due diligence had been used to procure the evidence (4) that the evidence is not merely cumulative and does not tend to impeach testimony of the adversary and (5) that the evidence would probably produce a different result at new trial. In re Y, 516 S.W.2d 199 (Tex.Civ.App. writ ref. n. r. e.).

Appellant contends that the judgment of the trial court was not supported by the evidence, that it was not supported by sufficient evidence and was against the great weight of the evidence. A careful review of the record shows both sides produced witnesses testifying that the party by whom they were summoned was the proper party to have custody of the minor children or gave testimony indicating the opposite party would be unfit. Each of the parties testified that they loved the children and wanted to be named Managing Conservator. No remarkable evidence was presented which would cause an average jury to strongly favor or disfavor either party. Under these circumstances the jury would have been justified in selecting either of the parties as managing conservator. The points are without merit as the jury’s verdict is clearly supported by the evidence.

Appellant complains that the court wrongly divested him of his separate property. The only testimony concerning this was elicited from Appellant on the motion for new trial where he testified that (1) the home was bought during the marriage; and (2) the down payment of $6000 was made from the proceeds of a gift from his father. The judgment allowed appellant a reimbursement of $6000. Contrary to appellants contention this is not violative of Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex.1977).

Appellant’s remaining points complain of the trial court limiting and excluding testimony on his motion for new trial and of the court’s refusing to allow him to take certain depositions.

Whether a deposition should or should not be taken is within the sound discretion of the trial court and before his ruling may be set aside there must be shown clear abuse of discretion. Harris County v. Hunt, Tex.Civ.App., 388 S.W.2d 459. Although there is no rule or case specifically prohibiting the taking of a post trial deposition, the authorities assume that if depositions are to be taken, it should be done before or during trial for use during the trial. There is no abuse shown or indicated in the trial court’s quashal of the notices of appellant to take depositions for use upon a hearing on a motion for new trial.

Upon a hearing on the motion for new trial, counsel for appellant, who did not represent appellant at trial, generally attempted to present additional evidence which he contends the trial counsel should have presented at trial and which would have rebutted testimony presented by ap-pellee at the trial. The appellant argues that C. v. C., 534 S.W.2d 359 (Tex.—Dallas 1976) requires the relaxation of ordinary rules of evidence in a child custody case. The proposition that technical rules of procedure should not override the best interest of the child does not require that the trial court admit cumulative or inadmissible testimony. The record does not reflect that the trial court abused its discretion in excluding the proffered evidence.

The judgment of the trial court is affirmed.

EVANS and WALLACE, JJ., sitting.


text:
    In the Matter of S C B, Appellant, v. The STATE of Texas, Appellee.
    No. 17245.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 15, 1979.
    Rehearing Denied March 22, 1979.

      Woody & Rosen, Marian S. Rosen, Houston, for appellant.
    Carol Vance, Dist. Atty., William T. Harmon, Douglas O’Brien, Asst. Dist. Attys., Houston, for appellee.
   WARREN, Justice.

S.C.B. a juvenile, appeals from a Juvenile Court order waiving its jurisdiction and certifying appellant as an adult for trial in the Criminal District Court of Harris County.

Appellants first point of error complains of the Juvenile Court’s failure to suppress “subsequent photographs, photographic spread, lineups, samples of hair from appellant’s head and pubic region as well as other evidence seized as a result of or related to the initial invalid arrest.”

The state’s case consisted of two witnesses. The complaining witness testified that on February 1, 1978, she was walking from the parking lot of her apartment situated on Wild Indigo, Houston, Harris County, Texas, when two males approached her, pinned her against a car and put a knife to her side. One of the males said “keep going, I’ve got a gun, I’ll blow your head off.” Four hundred dollars in cash was taken from her. After being asked, she held up her car keys and pointed to her car.

The respondent who had a knife in his hand sat in the driver’s seat and complainant sat in the middle of the other front seat. Respondent then drove the car to a construction site, stopped the car, and told complainant to get in the back seat. He then had sexual intercourse with complainant and made her commit oral sodomy. Af-terwards he took a ring from her finger, looked through her purse and billfold, then gave her purse back to her. They both put on their clothes and respondent drove to a residential area where he got out of the car. She was with respondent “over a hour and a half, maybe closer to two hours”. She testified that she was sure S.C.B. was the man who committed these acts.

Dr. James Ray Hayes, a clinical psychologist testified that he had examined S.C.B. and gave his evaluation and his findings as to the appellant’s background, mental state, capacity and benefit from treatment, psychological examination, maturity and prognosis for changes.

As previously stated, the only evidence introduced by the State regarding the offense was the complainant who identified appellant as her assailant and testified as to the facts of the alleged offenses. No evidence was introduced by the State concerning the arrest, lineup, photographs of hair samples; appellant in bills of exception and voir dire attempted to prove that the arrest was made without a warrant probable cause and that the lineups which resulted in appellant’s arrest were illegal.

Article 52.01(a)(3) of V.A.T.C., Family Code provides that “a child may be taken in custody: . . . (3) by a law-enforcement officer if there are reasonable grounds to believe that the child has engaged in delinquent conduct or conduct indicating a need for supervision.” In this case the arresting officers were furnished an offense report and instructed to go and arrest S.C.B. Before leaving they talked with persons in the homicide division and discovered that the complainant had described S.C.B. to Officer Wilburn of Homicide. He was picked up and brought to the police station for further investigative purposes.

Under the circumstances it appears that the officers had reasonable grounds to believe that the child had engaged in delinquent conduct or conduct indicating the need for supervision, as required by the statute. There was no evidence offered by the state concerning the matters of which appellant complains, thus nothing to suppress.

In his second, third and fourth points of error appellant complains that the Juvenile Judge erred in holding that the juvenile had waived his constitutional rights and in failing to suppress photographic and lineup identification. Such rulings were not made by the court; thus, there is no error.

Appellant’s fifth point of error alleges that the trial court erred in denying appellant leave to file his motion to quash and dismiss the petition, and his motion to suppress evidence based upon the “three day rule”. According to appellant, Rule 21a of the Texas Rules of Civil Procedure should not be held applicable due to the inherently criminal nature of the certification proceedings.

The record shows that the certification hearing began on May 4, 1978, that counsel for appellant was hired some time before this date and made an appearance in the case on March 6, 1978. However, a motion was filed by appellant in the Federal Court to restrain these proceedings, and on May 3, 1978, an order denying appellant’s requested relief was filed. The state objected to the filing of the motions to suppress and to quash because it was not given three days notice of the motions as required by Rule 21a Texas Rules of Civil Procedure, which was sustained by the trial court. Considering the length of time counsel had been retained and the fact that there had been no amendment of the pleadings by the state, we hold that there was no error by the court in enforcing T.R.C.P., Rule 21a.

Appellant’s sixth point of error alleges that the trial court erred in failing to dismiss the petition which did not meet the requirements of procedural due process, notice and specificity mandated by the Texas Family Code, Texas Code of Criminal Procedure, the Texas Rules of Civil Procedure and the Constitution of the United States.

We have inspected the petition and find that it satisfies both the criminal and civil tests regarding notice and specificity.

The petition contains three counts. The first gives the date (on or about), the county, the state and alleges an aggravated rape of complainant by appellant in the words of the criminal statute making them an offense. (Article 21.02, V.A.T.C., Penal Code). The second count gives the on or about date, the county and state in the words of the criminal status making this an offense. (Art. 29.02, V.A.T.C., Penal Code). The third count is the same except it alleges an abduction of complainant by appellant with intent to violate and abuse her sexually-

Each count states with reasonable particularity the time, place and manner and penal law or standard of conduct allegedly violated by his acts as required by Article 53.04(d)(1) of the Family Code. Appellant filed no special exceptions to the petition.

Appellant’s seventh point of error complains of the failure of the trial court to quash and dismiss the petition because of the unconstitutionality of Section 53.04 of the Texas Family Code which purports to authorize the filing of criminal proceedings on mere information and belief without a sworn affidavit.

An information filed in a misdemeanor supported by a complaint made by an affi-ant on information and belief has been held to be valid, Wells v. State, 516 S.W.2d 663 (Tex.Cr.App.1974) and many indictments by a grand jury are based on information and belief, the only standard being imposed being Art. 19.34, Texas Code of Criminal Procedure, and this being the oath administered to the Grand Jury.

Point of error number eight complains that the trial court erred in certifying the appellant to stand trial as an adult for the reason that the certification procedure utilized under Section 54.01 et seq. of the Texas Family Code is unconstitutional.

A review of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, shows that the Texas Legislature paid close attention to the suggestion and guidelines by the Supreme Court of the United States in writing Part 54 of the Family Code. In many instances the wording is verbatim. This section has previously been held to be constitutional in the Matter of P.B.C., Tex.Civ.App., 538 S.W.2d 448 and In the Matter of I.J., Jr., Tex.Civ.App., 546 S.W.2d 110. The point is overruled.

Point of error number nine complains that the trial court erred in refusing to furnish appellant a Statement of Facts without cost. The juvenile court after considering the evidence on a hearing, found that the appellant was not entitled to be furnished a free Statement of Facts and Transcript. There are no standards set out for guidance to trial judges in determining actual indigency of a criminal defendant for purposes of appeal and each case must be decided on its own facts. Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App.1976). Appellant herein has in fact secured a record and perfected this appeal. No action for mandamus of the juvenile judge was brought and no harm is shown.

The judgment of the juvenile court is affirmed.


author: CLAYTON, Justice.

text:
    AMERICAN MEDICORP, INC., et al., Appellants, v. Daniel LORD et al., Appellees.
    No. 8186.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 15, 1979.
    Jack R. Martin and D. K. Sperry, Houston, for appellant.

      Joseph F. Archer, Don Weitinger, Russell H. McMains, Tom W. Foster, Houston, Harry S. Jones, Bellaire, Wayne Sturdivant, Amarillo, William A. Harrison, Houston, for appellee.
   CLAYTON, Justice.

This is a wrongful death action brought by appellant Daniel Lord and the Minors Dayna and Sherrie Lord (plaintiffs below), as surviving husband and children of Carolyn Ann Lord, for the wrongful death of Mrs. Lord while an obstetrics patient at Southmore Medical Center, Inc.

The basic undisputed facts are that Carolyn Lord entered Southmore Hospital and was the second patient who used the delivery room in question after the new hospital was opened and began its operations. It is undisputed that she died of anoxia due to a cross-connection between nitrous oxide and oxygen pipelines, or, as was contended by two of the defendants, that the inert testing gas, nitrogen, was never purged from the system and that anoxia resulted therefrom.

The original named defendants were Har-con Corp.; Ohio Medical Products Co.; Lambert Construction Co.; Pierce, Goodwin and Flanagan, an architectural company partnership; Pierce, Goodwin and Flanagan, individually; Southmore Medical Center, Inc.; American Medicorp, Inc.; and Wharton Development Co. Prior to trial, plaintiffs settled with Ohio Medical; Pierce, Goodwin, and Flanagan, individually and as a co-partnership; and orders of non-suit were entered as to these parties; however, they remained in the case because of the various cross-actions filed against them. Cross-actions were filed and prosecuted by each named defendant against all other named defendants.

The case was submitted to a jury on special issues. In response to a general negligence charge, the jury found that American Medicorp, Inc., was negligent and the percentage of its negligence was forty-five percent; Southmore Medical Center, Inc., was forty-five percent negligent; American Medicorp Development Co. was five percent negligent; and Medicorp Management, Inc. was five percent negligent. The jury exonerated defendants Harcon, Lambert, Ohio Medical, and Pierce, Goodwin and Flanagan from any negligence. The jury awarded actual damages in the amount of $2,000,000 and exemplary damages in the amount of $5,000,000 against Southmore Medical Center, Inc. The trial court entered judgment against American Medicorp, Inc.; American Medicorp Development Co.; Medicorp Management, Inc.; and Southmore Medical Center, Inc. — all of whom are hereinafter referred to as appellants — for actual damages in the sum of $1,000,000, and in the sum of $1,000,000 against Southmore Medical Center as exemplary damages. All damages were duly apportioned between the plaintiffs. The trial court further decreed that “. . . each of the Cross-Plaintiffs . . . recover nothing of and from each of the Cross-Defendants by virtue of such cross-actions for contribution and/or indemnity.” Appellants have duly perfected their appeal from such judgment. Defendants Harcon, Lambert, and Ohio Medical are herein referred to as appellees.

On the 20th day of September 1978, and during the pendency of this appeal, this court, upon joint motion of appellants and the plaintiffs (Lords), entered an order wherein “The appeal of the appellants American Medicorp, Inc., American Medi-corp Development Company, Medicorp Management, Inc. and Southmore Medical Center, Inc., as to the appellees Daniel Lord, Sherrie Lord, and Dayna Lord is hereby severed from the remainder of the cause and the judgment, insofar as it relates to said Lord plaintiffs only, and is here and now reversed and the cause is remanded to the District Court of Harris County . for hearing as to approval of settlement and division of proceeds to minor appellees Dayna Lord and Sherrie Lord.” This order was made without prejudice to any of the rights of the remaining parties to this appeal, and the right of any party to indemnity and contribution from any other party “has not been adjudicated but remains for determination after submission of the remainder of the cause to the court.”

Pursuant to the above order of reversal and remand of that part of the cause, a settlement was effected between the appellants and the plaintiffs (Lords) which was duly approved by the trial court. The settlement between the parties was consummated by what is designated as an “Assignment of Judgment.” By the terms of this instrument, the plaintiffs (Lords) did ". . . SELL, ASSIGN, and CONVEY, all [their] right, title and interest in any and all actions and causes of action of whatsoever nature against any and all parties who are or may be liable for the death of Carolyn Ann Lord, . . and all of [their] right, title and interest in the Judgment heretofore entered in this cause, . except that the plaintiffs . . expressly retain the right to receive the sum of . ($75,000) from Ohio Medical Products Co. and . . . ($50,000) from Harcon Corporation pursuant to their respective settlement agreements, and this assignment is expressly subject to such agreements. . . .” The consideration for this assignment was $1,050,000. The trial court duly apportioned such sum between the adult plaintiff and the minor plaintiffs.

By virtue of the severance and settlement between appellants and the plaintiffs (Lords) the remaining portion of this appeal concerns the rights of the appellants to indemnity or contribution from the appel-lees Harcon Corporation, Lambert Construction Company, and Ohio Medical Products Company. It has been stipulated by appellants that they do not further prosecute this appeal against Pierce, Goodwin and Flanagan, either individually or as a co-partnership.

During the course of the oral submission, appellants asked leave to file a post-submission brief addressed to the legal effects of the settlement made by them with the plaintiffs, particularly as to appellants’ rights to indemnity or contribution. This court granted leave to file such brief on the condition that the brief be filed only for such purpose and not for the purpose of presenting any additional points or arguments not previously presented or briefed. By their post-submission brief, appellants have presented additional matters in their Reply Point No. 1 which is outside the scope of the conditional granting of leave to file such brief. Motion to strike such Reply Point No. 1 having been duly made and presented, such motion to strike is sustained and the appellants Reply Point No. 1 in its supplemental brief is ordered stricken. See Leinert v. Sabine National Bank, 541 S.W.2d 872 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.); Tex.R.Civ.P. 431.

The threshold question before this court is whether or not the settlement entered into by and between the plaintiffs below and the appellants as outlined above, precludes any recovery for indemnity or contribution by appellants over and against the appellees.

The purchase of and assignment of the original judgment in the sum of $2,000,-000 over and against appellants in favor of plaintiffs (Lords) for the sum of $1,050,000 was their method of settling the plaintiffs’ claims and discharging appellants’ liability to plaintiffs. The judgment purchased by appellants specifically denied any and all of appellees’ liability for “indemnity and/or contribution.” This denial of liability on the part of appellees was based upon the verdict of the jury which exonerated appel-lees from any liability as to plaintiffs and as to liability for indemnity or contribution. The plaintiffs (Lords) did not appeal from this portion of the judgment, and as to plaintiffs such judgment of denial of liability is a final judgment. Because of the finality of such judgment, plaintiffs do not, at this time, have an enforceable cause of action against appellees.

The general rule of law applicable to the present status of this case is that neither contribution nor indemnity can be recovered from a party against whom the injured party (in this case, the plaintiffs) has no cause of action. See City of Houston v. Watson, 376 S.W.2d 23, 33 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.), and cases cited therein; Safway Scaffold Co. of Houston, Inc. v. Safway Steel Products, Inc., 570 S.W.2d 225 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n. r. e.); City of Austin v. Cooksey, 570 S.W.2d 386 (Tex.1978).

By the purchase of the judgment in this settlement of appellants’ liability to plaintiffs, appellants can have no more rights than those held and owned by plaintiffs. Since the plaintiffs do not now have a legally enforceable cause of action against appellees, then it necessarily follows that appellants do not have any such cause of action. There has been a final adjudication of denial of liability of appellees as to the plaintiffs.

Appellants, by virtue of the settlement and ownership of plaintiffs’ judgment, now find themselves in the position of attacking the very judgment which they own. For a valuable consideration they have purchased, and now own, a $2,000,000 judgment. This judgment by its very specific terms denies any liability for “indemnity and/or contribution” against the appellees. At the time of the purchase and assignment, appellants knew of the terms of such judgment and accepted it. We do not believe they are now in a position to make any attack upon it. To permit appellants now to attack that portion of the judgment denying such liability would be, in effect, to permit the plaintiffs to make such an attack. The plaintiffs could not make such an attack since that part of the judgment is final as to these appellees and plaintiffs.

We believe there are yet other reasons for denying appellants any recovery for indemnity or contribution over and against appellees. If, for any reason, we should reverse and remand that part of this appeal concerning indemnity or contribution, what will be the posture and the rights for recovery of appellants in the new trial proceedings?

A recovery for contribution must be made in accordance with the provisions of Tex.Rev.Civ.Stat.Ann. art. 2212a (Vernon Supp.1978). It is specifically provided by Sec. 2(g) of such article that “All claims for contribution between named defendants in the primary suit shall be determined in the primary suit. . . . ”

The appellants, by their own choice, have completely eliminated the primary suit. In the absence of the primary suit, recovery for contribution cannot be had under Tex.Rev.Civ.Stat.Ann. art. 2212a (Vernon Supp.1978). Therefore, even if a new trial should be granted appellants, they could not be in a position to successfully prosecute their claim for contribution.

The plaintiffs have been compensated for the damages sustained by them. They have accepted and received satisfaction in monetary payment for their damages. It is a general rule that an injured party is entitled to but one satisfaction for injuries sustained by him. That rule is not even modified by the circumstance that more than one wrongdoer contributed to bring about his injuries. There being but one injury, there can be but one satisfaction for that injury. See T. L. James & Co., Inc. v. Statham, 558 S.W.2d 865 (Tex.1977); Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935); McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971). To permit appellants—who now stand in the same shoes of plaintiffs under their judgment— to recover compensation in addition to that received by the plaintiffs’ compensation for their damages, is to violate such rule of “one satisfaction for their injuries.” The effect of permitting appellants to recover additional compensation would be the same as permitting plaintiffs to recover additional compensation. We see no valid reason for permitting appellants to do indirectly that which the plaintiffs cannot do.

The judgment of the trial court is affirmed.

AFFIRMED.


author: EVANS, Justice.

text:
    BANK OF NORTH AMERICA, Appellant, v. BLUEWATER MAINTENANCE, INC., et al., Appellee.
    No. 17280.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 22, 1979.
    Rehearing Denied March 22, 1979.
    Thomas W. Moore, Jr., Houston, for appellant.
    Lohmann, Glazer & Irwin, John Loh-mann, III, Jarrold A. Glazer, Houston, for appellee.
   EVANS, Justice.

The plaintiff, Bank of North America, brought this action against defendants, Bluewater Maintenance, Inc., P. D. Kelly and R. M. Harmon to recover the sum of $5,000.00 allegedly owing as the unpaid balance due under a promissory note. The defendants, herein collectively referred to as “Bluewater”, filed pleas of payment and novation. After a jury trial, the trial court entered judgment on the jury’s verdict that the plaintiff bank take nothing against Bluewater. The bank brings this appeal.

The “commercial” note upon which this suit is founded bears a date of January 12, 1973, and specifies an original principal amount of $13,676.66. The note reflects a maturity date of March 13, 1973, and provides that interest accrues from date until maturity at the rate of 9% per annum. On April 9, 1973, after maturity, the unpaid principal balance and accrued interest due under this note amounted to the total sum of $8,973.38. At that time Bluewater also owed the bank the sum of $7,245.38 on an installment note, and, therefore, had a combined indebtedness to the bank on said notes in the total sum of $16,219.50.

On the date indicated, April 9, 1973, Blue-water made a cash payment to the bank in the amount of $2,219.50 and executed and delivered a new promissory note in the principal amount of $14,000.00. Contemporaneously with the execution of this note, the bank issued a memorandum reciting that the $14,000.00 note represented a “combining” of the $13,676.00 commercial note and the $7,245.38 installment note, less a $5,000.00 “write-off”.

In response to the first special issue the jury found that it was the intent of the bank and Bluewater that the cash payment of $2,219.50 and the execution of the $14,-000.00 note would discharge the entire principal and interest balance due under the $13,676.66 commercial note and the $7,245.38 installment note.

The bank challenges the legal sufficiency of the evidence to support the jury’s finding that it was the intent of both parties to extinguish the $5,000.00 debt and that the defendants failed to prove the necessary elements of novation, particularly the element of consideration. The bank contends that the uncontroverted evidence shows that it remained in possession of the original note, and that the only reasonable inference to be gained from the evidence is that the $5,000.00 “write-off” was a mere bookkeeping entry to satisfy the requirements of the bank’s examiners.

In reviewing the bank’s no evidence points, this court will consider only the evidence in support of the verdict and must ignore all evidence to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Thus, if the court determines that the jury’s finding is supported by any probative evidence the bank’s points of error must be overruled.

The record reflects that the bank and Bluewater had been transacting business together for several years prior to the transaction in question. Bluewater’s executive vice-president, Mr. Phillip Dale Kelly, testified that in April 1973, he talked to the bank’s officer, Mr. Frank McWhorter to discuss the status of the $13,676.66 commercial note and the $7,245.38 installment note. Mr. McWhorter told him that Bluewater’s loan status and business dealings at the bank were in a “mess” and suggested in order to rectify the matter, the two notes be “combined” to “make a better deal than we had before.” Mr. Kelly testified that the bank officer suggested the two debts be “put together” for a net result of $14,-000.00, and that such sum was the “full amount that Bluewater would have to pay.” Under this proposed “deal”, Bluewater would have to pay, only the $14,000.00 note, and the $5,000.00 remaining unpaid balance due under the commercial note would be “written-off”.

A novation agreement need not be in writing or evidenced by express words of agreement, and an express release is not necessary to effect a discharge of an original obligation by novation. The intent to accept the new obligation in lieu and in discharge of the old one may be inferred from the facts and circumstances surrounding the transaction the conduct of the parties. Utay v. Urbish, 433 S.W.2d 905 (Tex.Civ.App.-Dallas 1968, no writ.)

There was some evidence from which the jury might reasonably have concluded that the parties had entered into a new contractual arrangement to discharge Bluewater’s indebtedness to the bank and that under such an arrangement it was mutually intended that the bank would write-off as a bad debt the sum of $5,000.00 due under the original note. The fact that approximately two years elapsed before any claim or demand was made for the payment of the $5,000.00 item was a circumstance the jury might consider as tending to indicate an intent on the part of the bank to discharge that portion of the original debt. The record reflects that the new $14,000.00 note provided for payment over a four year period and for an increase of 1.9 per annum in the specified rate of interest. Thus, there is evidence to support an implied finding by the trial court that the bank received tangible benefits under the new agreement and that there was a valuable consideration for its “write-off” of the $5,000.00 debt. The bank’s first four points of error are denied.

In its eighth point of error, the bank contends that the trial court erred in refusing to grant its motion non obstante veredicto because the jury’s finding to the first special issue is against the great weight and preponderance of the evidence. This point and the argument thereunder show that the point challenges only the legal sufficiency of the evidence to support the jury’s finding. Burney v. Ibarra, 415 S.W.2d 517 (Tex.Civ.App.-San Antonio 1967, writ ref’d n. r. e.) For the reason herein-above specified, this point is also denied.

In its fifth, sixth and seventh points of error the bank contends that the trial court erred in refusing to exclude from the jury’s consideration certain testimony concerning the previous business dealings between the bank and Bluewater.

Bluewater’s president Randall Harmon testified that the Bluewater parties had been required by the bank to issue checks to certain individuals as “points” for a Small Business Administration loan and that in connection with such loan Bluewater had been required to purchase certificates of deposit which provided for lower interest rates than those which they had been receiving. Harmon further testified that the funds represented by these checks had never been repaid to the Bluewater parties and that upon complaint being made to The Small Business Administration, they were advised that the loan transaction was illegal.

It is the bank’s contention that this testimony pertained to matters occurring prior to the date of the transaction in question and that it should have been excluded because it was irrevelant, prejudicial, and outside the issues which were pled.

Although this testimony had very little bearing upon the central issues in the case, it cannot be said, considering the record as a whole, that the admission of such testimony, if error, was calculated to or probably did cause the rendition of an improper judgment. Rule 484 Tex.R.Civ.P. The record shows that most of such testimony was received in evidence before objection was made known to the court, and the bank’s objections are so general in nature that its complaints of error cannot be considered by this court. M. K. Bales v. Delhi-Taylor Oil Corp., 362 S.W.2d 388 (Tex.Civ.App.-San Antonio 1962, writ ref’d n. r. e.). These points of error are overruled.

In its remaining points, the bank complains that the trial court erred in rendering judgment against it because the judgment is against the great weight and preponderance of the evidence and is not supported by sufficient evidence. These points are not in substantial compliance with Rule 418 Tex.R.Civ.P. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957); Patterson v. East Texas Motor Freight Lines, 349 S.W.2d 634 (Tex.Civ.App.-Beaumont 1961, writ ref’d n. r. e.). The points do not direct the attention of the court to the alleged errors and are so general in their scope that nothing is presented for appellate review. Minchen v. First National Bank of Alpine, 263 S.W.2d 601 (Tex.Civ.App.-El Paso 1953, writ ref’d n. r. e.); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818 (Tex.Civ.App.-Dallas 1962, writ ref’d n. r. e.).

The trial court’s judgment is affirmed.

WALLACE and WARREN, JJ„ sitting.


author: DOYLE, Justice.

text:
    William J. O’SHEA, Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellee.
    No. 17225.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 22, 1979.
    Rehearing Denied March 29, 1979.
    Butler, Binion, Rice, Cook & Knapp, Michael W. Fox, Houston, for appellant.
    John A. Daniel, Dallas, for appellee.
   DOYLE, Justice.

Mr. William J. O’Shea (O’Shea) appeals from a judgment in favor of International Business Machines Corporation (IBM) for $756.00 plus interest and $689.00 attorney’s fees.

IBM filed suit against O’Shea in Dallas County, Texas, based on a written agreement between them executed in Houston, Texas, for the purchase of an IBM Correcting Selectrie II typewriter, alleging that O’Shea failed to pay for this equipment. In the alternative, IBM also alleged that O’Shea’s omission, not calling IBM more than once, prevented them from installing the typewriter. Defendant O’Shea answered, filed a plea of privilege, which was sustained, and thereafter filed a counterclaim against IBM claiming it failed to comply with the contract and violated Art. 17.-50 of the Texas Deceptive Trade Practices-Consumer Protection Act by unconscionable, actions. On special issues the jury found that the failure of IBM to install the typewriter was due to an act or omission by O’Shea. They did not find that O’Shea did not notify IBM within a reasonable time after delivery of the typewriter that the typewriter had not been installed. The jury found that the counterclaim brought by O’Shea against IBM was groundless and brought in bad faith or for the purpose of harassment. The judgment awarded IBM the purchase price of the typewriter and attorney’s fees on its defense of O’Shea’s counterclaim based on the jury’s finding that the counterclaim was groundless and in bad faith or for harassment. O’Shea appeals.

The immediate question facing the court is presented by O’Shea’s points no. 1 and 2 which raise the questions of an instructed verdict and the insufficiency of the evidence to support the jury’s finding to Special Issue no. 1, which reads as follows:

“Do you find from a preponderance of the evidence that the failure of International Business Machines Corporation to install the typewriter in question as represented under the terms of the contract (Plaintiff’s Exhibit One) was due to an act or omission on the part of International Business Machines Corporation or William J. O’Shea?”

The jury answered: “William J. O’Shea”.

Only the following portion of the contract between the parties dealt with installation:

“Purchaser will make available a suitable place of installation with all facilities as specified by IBM and furnish all labor required for all unpacking and placing equipment in the desired location. Equipment purchased under this agreement will be installed by IBM. The date, (Monday through Friday) following that on which IBM determines that the equipment has been installed shall be considered the date of installation of such equipment for all purposes of this agreement. IBM will notify purchaser when the equipment has been installed.”

The contract further provided that payment would be due 30 days from the date of contract.

Although apparently not required to do so by the terms of the contract, it is undisputed that O’Shea did call IBM within a day or two after delivery on August 29, 1974, and asked that his typewriter be installed. In response to Special Issue No. 2 as to whether O’Shea notified IBM within a reasonable period of time after delivery of the typewriter that the typewriter had not been installed, the jury in effect found that O’Shea had so notified IBM. Further, IBM obviously not only knew of the typewriter’s delivery to O’Shea, but proceeded as though it had been installed by sending O’Shea a past due notice on September 30, 1974; a solicitation for extension of expiring warranty on October 24, 1974; a second past due notice on October 3, 1974; another notice about the expiring warranty on November 20, 1974; a standard form collection letter on November 22, 1974; and a letter dated December 10, 1974, giving notice of legal action if payments were not made by return mail. The record further shows that it was not until April 10, 1975, seven (7) months after the typewriter should have been installed, that IBM for the first time offered to make arrangements for the installation. O’Shea contends that this was a conditioned offer not imposed by any terms of the contract.

We have carefully examined each of IBM’s exhibits tendered to show its constant contact with O’Shea concerning his account with it. These notices and letters are concerning demands for payment and warranties and not offers to install the typewriter. It is not clear to us how IBM regards such exhibits as evidence of its willingness to comply with the installation terms of the contract when all the while it erroneously considered that the machine had already been installed. Prior to the latter part of November 1974, IBM was accusing O’Shea only of not paying his account. Any act or omission on O’Shea’s part would have come subsequent to this date. We must now consider whether evidence adduced was factually sufficient to sustain the jury’s findings.

The evidence is undisputed that the typewriter was never installed by IBM and was returned to IBM by O’Shea on October 28, 1976. Although the time for installation was not stated, the court will imply a reasonable time. Pace Corporation v. Jackson, Tex.Civ.App., 275 S.W.2d 849, affd. 155 Tex. 179, 284 S.W.2d 340 (1955).

As a general rule, performance is excused when a party to a contract prevents the other party from performing. Miller v. Hodges, 260 S.W. 168, 172 (Tex.Comm, of App., 1924, jdgt. adopted)

The only acts that could be construed as constituting evidence that O’Shea prevented IBM from installing the typewriter would be O’Shea’s failure to call and advise IBM that his typewriter had never been installed after he received various demands for payment and letters about a warranty. Was O’Shea legally obligated to call IBM after receiving such correspondence? We think he was not. The evidence submitted by IBM on this point tended, at best, to show bad faith on O’Shea’s part in not making further calls to IBM concerning its failure to make the installation. However, in view of the hard feelings that arose between the parties when O’Shea initially called IBM, it is evident that neither party was willing to alter its position in an attempt to resolve the stalemate. It is questionable that this constituted such bad faith on O’Shea’s part as would prevent IBM’s installation of the typewriter. Supportive of our view is the case of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898), wherein Justice Denman, in determining the evidence legally insufficient to support a jury finding said:

“From a careful examination of the cases, it appears (1) that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being “any evidence”; and (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force. If it so determines, the law presumes that the jury could not “reasonably infer the existence of the alleged fact,” and “that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.” The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony establishes more.”

Applying the legal sufficiency of evidence on appeal test to the case before us, that is, crediting IBM with all evidence favorable to it and disregarding all evidence that is adverse to it, we determine that the testimony falls short of the probative force necessary to support the jury’s finding for IBM.

In his point of error no. 3, O’Shea contends that the trial court erred in refusing to submit his requested issues and instruction inquiring (i) whether IBM expressly warranted that the electric typewriter would be installed; (ii) if so, whether the express warranty was breached by IBM, and (iii) if so, whether the breach was a producing cause of damage to him since there was sufficient evidence to support submission of these issues and affirmative findings would have entitled O’Shea to recover under the Deceptive Trade Practices Act.

IBM argues that the contractual provision regarding installation of the typewriter cannot be a breach of warranty under the DTPA (Texas Deceptive Trade Practices-Consumer Protection Act) because of the definition in Section 2.313 Tex.Bus. & Comm.Code, V.A.T.S.:

(a) Express warranties by the seller are created as follows:
(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

The DTPA does not contain a definition of warranty, therefore we must look to the definition in Section 2.313 which encompasses promises similar to the one in the contract in question. It is a “promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain . . .”. In MacDonald v. Mobley, 555 S.W.2d 916 (Tex.Civ.App.-Austin 1977, writ ref’d n.r.e.), the court held that an express warranty was created when the appellants represented to appellees that they would repair defects in the house bought.

In the case before our court, the agreement was to install a typewriter, which IBM promised to do. O’Shea’s requested issues were supported by his pleadings and evidence adduced at the trial. IBM contends that failure to submit the requested issues, if error, was harmless in view of the jury’s answer to special issue no. 1. Having held that the jury finding on special issue no. 1 is not supported by legally sufficient evidence, we overrule this point.

By his point of error no. 4, O’Shea complains that the trial court erred in refusing to submit his requested issues inquiring whether the filing of this suit in Dallas County constituted either (i) a deceptive trade practice or (ii) an unconscionable act on the part of IBM, and if so, whether such action was a producing cause of any damage to him, since there was sufficient evidence to support submission of these issues and affirmative findings would have entitled O’Shea to recover under the Deceptive Trade Practices Act.

O’Shea argues that based on Section 17.46(b)(21) DPTA, V.A.T.S., the trial court erred in not submitting his special issue relating thereto and that IBM’s act of filing this suit in Dallas County was a deceptive trade practice or an unconscionable act. It is not necessary for this court to pass upon the merit of this contention since the record shows that IBM filed its original petition in Dallas County, Texas, on September 8,1975, and that O’Shea’s first amended counterclaim complaining of the venue matter was filed on November 28,1977, after the effective date of Section 17.46(b)(21), which was on August 29, 1977. Hence any provisions contained therein would not be applicable to O’Shea’s cause of action. We overrule this point of error.

Points of error no. 5 and 6, are germane and present the questions of whether the trial court erred in submitting an issue to the jury inquiring whether O’Shea’s counterclaim was groundless and brought in bad faith or for the purpose of harassment, and whether the court erred in awarding attorney’s fees to IBM under Section 17.50(c), Tex.Bus. & Comm.Code, V.A.T.S. which reads:

(c) On a finding by the court that an action under this section was groundless and brought in bad faith or for the purpose of harassment, the court may award to the defendant reasonable attorneys’ fees in relation to the amount of work expended, and court costs.

The jury found that O’Shea’s counterclaim against IBM was groundless and brought in bad faith or for the purpose of harassment and the court awarded IBM attorney’s fees for the defense of it. Our court must now decide whether it was error to send this issue to the jury.

A law review article dealing with this point says, with very little discussion, that undoubtedly this is not an issue for the jury. A well written article by William Dean Leikam, Woods v. Littleton; Consumerism Comes of Age, 18 South Texas Law Journal 477 (1977), states the following:

The test that Section (c) provides is a two-pronged one: the action must be groundless and brought in bad faith, or, the action must be groundless and brought for the purpose of harassment. Section (c) further states that “on a finding by the court” that the action was groundless, the court can award to defendant reasonable attorney’s fees. It would appear from the wording of the article, at least from a defense standpoint, that this is a finding that must be made by the court, perhaps on motion by the attorney, but it is not an affirmative defense and does not have to be plead and proved as such. It most certainly is not an issue for the jury. From the plaintiff’s standpoint the opposite stance would be true. It would be especially desirable from the plaintiff’s view, if the case has any merit at all, to magnify the great prejudicial effect produced by a large corporate defendant attempting to prove up attorney’s fees against an individual, preferably low income, consumer, who has dared to assert his rights to obtain justice.

IBM points out that the Texas Supreme Court and the Courts of Civil Appeals have continuously held that it is the province of the jury to determine questions of fact. But to empower or authorize a jury to find that an action under Section 17.50(c) of the subject Act is groundless and brought in bad faith or for the purpose of harassment, is to assume that the jury is legally qualified to make such a finding. We find no such legislative intent from the wording of Section (c) of the Act. We interpret the wording “On a finding by the court that the action under this section was groundless . . . to mean that the court must make such findings based on undisputed fact issues, law issues or jury findings. If the evidence fails to raise jury issues on which a judgment for counterclaimant O’Shea could be properly awarded, the suit would be “groundless” as a matter of law. However, whether the suit is brought in “bad faith” or “for the purpose of harassment” would in the usual case present a jury issue. The wording of the Act to the effect that . . the court may award to the defendant reasonable attorney’s fees in relation to the amount of work expended, and court costs”, apparently posed no question that the court therein meant the “court” and IBM requested no special issue on this point. We hold that the trial court committed error in submitting this issue to the jury as it did and that the award of attorney’s fees to IBM based upon the jury’s finding was improper.

IBM’s cross points of error no. 2 and 3 complain of the trial court’s admission into evidence of certain computerized business records to prove legal work done and attorneys’ fees due therefor. The evidence is void of any compliance with the requirement for the admission of such records as is set out in Art. 3737e, V.A.T.S. The predicate for the introduction of such records into evidence is set forth in detail in Railroad Commission v. Southern Pacific, 468 S.W.2d 125 (Tex.Civ.App.-Austin 1971, writ ref. n.r.e.). The record in our case is silent as to whether the computer equipment relied upon by O’Shea’s attorney’s firm was recognized as standard equipment for use in client billings; whether the records were prepared by persons who understood the operation of the equipment and whose regular duty it was to operate such equipment; and whether the permanent nature of records storage as to how daily processing of information could be fed into the computer was conducted, all of which are required by the statute and outlined in IBM’s brief.

Cross points of error no. 1, 2 and 3 by IBM are sustained. The trial court committed error in admitting the computerized business records and allowing an issue thereon.

For the reasons stated the judgment of the trial court is reversed and remanded for a new trial.

COLEMAN, C. J., and PEDEN, J., sitting.