author: SPURLOCK, Justice.

text:
    Cecil BRADLEY, Appellant, v. Rosalynda CASTRO et vir., Appellees.
    No. 18140.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 25, 1979.
    Hogan, Fudge & Elder, W. Bernard Fudge and Billy T. Elder, Burkburnett, for appellant.
    Smith & Douglass, Gene Douglass, Wichita Falls, for appellees.
   OPINION

SPURLOCK, Justice.

The owner of an automobile repair garage has appealed a judgment rendered against him for damages allegedly caused by his .negligence in undertaking repairs without first ascertaining what was wrong with the vehicle, and after minor repairs, advising the appellees that the problems had been corrected and that the car was ready for use when in fact it was not, resulting in the motor burning up. The garage owner complains that there is no evidence that his negligence is a proximate cause of the damages and that there is no evidence that the damages found by the court are the reasonable cost of repairs necessarily incurred.

Wé reverse and remand.

Cecil Bradley is the owner of B & C Garage and is in the business of repairing automobiles. Rosalynda and husband, John Castro, are the owners of a 1973 Ford automobile. They were having trouble with the automobile; it would lose power, die, and overheat. Mrs. Castro took it to B & C to have it repaired. She spoke with Buster Pruett, a B & C employee, when she left it. Bradley made the repairs.

Trial was to the court. The trial court made the following pertinent findings of fact:

“1. Prior to January 13,1978, Plaintiff, Rosalinda (sic) Castro, delivered her 1973 Ford Station Wagon to Defendant Cecil Bradley for repairs. At the time of delivery the vehicle was inspected by Cecil Bradley’s employee, Buster Pruett.
“2. At the time of such delivery the automobile was smoking and steaming from the engine area of the car as well as in the exhaust area.
“6. Rosalinda (sic) Castro, at the time of delivery, had told the agent and employee of Cecil Bradley that while driving the automobile it had overheated and that steam came out from underneath the engine and she described the difficulties in full and complete detail.
“7. Prior to Cecil Bradley undertaking repairs on the automobile he did not talk to his employee, Buster Pruett. Cecil Bradley did not talk to the Plaintiff. Cecil Bradley made no inquiry as to what was wrong with the car.
“9. The vehicle was returned to Rosalinda (sic) Castro on or about January 13,1978 and it was represented to her by the employee of Cecil Bradley, Buster Pruett, on such occasion that the vehicle had been repaired and that it was in good working order and that all of the problems in question had been corrected.
“10. Rosalinda (sic) Castro drove the vehicle from the business place of the Defendant and within a matter of minutes the engine again overheated, seized up, and became completely burned up due to the overheated condition.
“12. Based upon such repair estimate of Wolfe Ford Company and the admissions of the Defendant, Cecil Bradley, as incorporated in his deposition and read into evidence herein, the sum of $547.00 was a reasonable and necessary cost to effect such repairs in Wichita County.
“13. The Plaintiffs paid $547.00 to Insurance Wrecking Company of Wichita County, Texas in order to have a used engine placed in the vehicle as the engine which was in the vehicle was burned up and could not be repaired for such cost.”

B & C complains that the trial court erred in rendering judgment for Mrs. Castro because there is no evidence supporting the findings that $547.00 was a reasonable and necessary cost to effect repairs or that the $547.00 paid by Mrs. Castro was reasonable and necessary. It is well settled that the appellees, having elected the cost of repair measure of damages, must show reasonableness of the cost of repairs necessary to restore the automobile to its former condition as measured in the vicinity in which the occurrence took place. 17 Tex.Jur.2d Damages § 87 at 160 (1960). The record reflects that after her engine burned up Mrs. Castro took her car to Wolfe Ford Company in Wichita County and paid for a repair estimate. Wolfe estimated that it would cost over $1,000.00 to repair the auto.

Mrs. Castro decided to put a rebuilt engine in her auto at a cost of $547.00. The record reflects that portion of the deposition testimony of Bradley concerning the necessity of some of the repair called for in the Wolfe estimate. He stated that in his opinion some of the items were not necessary. However, there is no evidence in the record concerning the reasonableness of the cost of the repairs estimated or the cost of the repairs necessary in the opinion of Bradley. Further, there is no evidence in the record of the reasonableness of the cost of installing a rebuilt engine in a car in that vicinity.

Mrs. Castro would have us infer that the cost of the rebuilt engine is reasonable. She notes that the cost of the engine is lower than the repair estimate she got from Wolfe Ford. We decide no such inference can properly be made. Mere proof of amounts charged or paid does not raise an issue of reasonableness and such amounts ordinarily cannot be recovered without evidence showing that the charges are reasonable. Hyatt v. Tate, 505 S.W.2d 373 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). Further, we distinguish the cost of repair of the existing engine from the cost of replacement with another used engine for the purpose of establishing reasonableness of cost of repair. We sustain Bradley’s point of error that there is no evidence of reasonableness of cost of repair.

Mrs. Castro argues that should we reverse the trial court’s judgment, we should reverse and remand only the issue of damages. We do not agree. Tex.R.Civ.P. 434 provides that where liability issues are contested a separate trial on unliquidated damages alone shall not be ordered. We conclude that because the damages in this case are the reasonable cost of repairs, the damages are unliquidated. Thus should remand be appropriate the entire case will have to be retried.

Bradley claims he is entitled to a reversal and rendition of judgment and that Mrs. Castro take nothing. He contends that there is no evidence' to support the finding that Mrs. Castro told Pruett that ■ her car was steaming and smoking. He also claims that there is no evidence that his negligence was a proximate cause of the damage to the car. Mrs. Castro testified on direct examination as follows:

“Q Did anybody, any employees, or owners, or anything (sic) of the garage come out to talk to you and ask you what you wanted?
“A Yeah, I honked the horn and he came out.
“Q All right. Did he appear to you to be working there in the garage?
“A Yes, he was wiping his hands with a rag.
“Q Did he ask you what you wanted done?
“A He asked me what was the matter.
“Q All right.
“A And I told him my car wasn’t acting right, or very good.
“Q Well, tell the Judge as much as you can remember about what you told that man was wrong with your car?
“A I told him it was stopping. It kept stopping, dying, I guess, I didn’t call it — Yeah, I told him the car had died, or kept dying on me all the way down there and it was steaming.
“Q Okay. You told him it was steaming?
“A No. He could see it.

We conclude that from the above there is evidence that Mrs. Castro told the employee about the steam. The trial judge as the trier of fact did not have to believe Mrs. Castro when she attempted to retract her statement that she informed the employee of the steam.

After a thorough review of the entire record we also conclude that there was evidence from which the trial court could have properly inferred that Bradley’s negligence was a proximate cause of the damages sustained by Mrs. Castro. We overrule Bradley’s points of error that there is no evidence of Mrs. Castro informing the employee of the steam and no evidence of proximate cause.

Having decided that there is no evidence of the reasonableness of damages, we reverse the judgment of the trial court. We remand the case to the trial court for a new trial. '


source: Caselaw Access Project

author: STEPHEN F. PRESLAR, Chief Justice. WARD, Justice,

license: Public Domain

text:
    Paulino VIGIL et ux., Appellants, v. Antonio ELIZONDO et ux., Appellees.
    No. 6883.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 14, 1979.
    Goodman & Cronfel, Ada Cronfel, Laredo, for appellants.
    Person, Whitworth, Ramos, Borchers & Morales, George J. Person, Laredo, for ap-pellees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

For the reason that the judgment rendered is not supported by the pleadings, this summary judgment case must be reversed.

Appellees, as buyers, brought this suit for specific performance for conveyance of two lots described as Lots 17 and 18 in Pecan Acres Subdivision, Laredo, Webb County, Texas. They attached their contract of sale to their petition and prayed for its specific performance. Among other things, Defendants/Appellants imposed the defense that the contract had been modified by oral agreement to be Lots 18 and 19. On Appel-lees’ motion for summary judgment, the parties presented conflicting evidence of both written and oral agreements concerning the sale, including the identity of the land. The Court granted partial summary judgment in favor of the Plaintiffs, ordering Defendants to execute a warranty deed to Plaintiffs conveying Lots 18 and 19; and an order of severance of other matters made the partial summary judgment final.

We sustain Appellants’ first point of error that the trial Court erred in rendering summary judgment for Plaintiffs for Lot 18 and 19 because Plaintiffs sued for title to Lots 17 and 18 and the judgment is therefore not supported by the pleadings. It is well settled that a court may not grant relief not supported by pleadings or prayer. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130 (1942); Board of Firemen’s Relief and Retirement Fund Trustees of Harris County v. Stevens, 372 S.W.2d 572 (Tex.Civ.App.—Houston 1963, no writ); Tharp v. Blackwell, 570 S.W.2d 154 (Tex.Civ.App.—Texarkana 1978, no writ); Huddleston v. Fergeson, 564 S.W.2d 448 (Tex.Civ.App.—Amarillo 1978, no writ); Rule 301, Tex.R.Civ.P.

A case not unlike the one before us is the early case of Community of Priests of Saint Basil v. Byrne, 236 S.W. 1016 (Tex.Civ.App.—Austin 1921), reversed on other grounds 255 S.W. 601. There, it was held that a plaintiff suing on one contract cannot recover upon a different contract set up by the defendant in the pleadings as the true contract unless plaintiff’s pleadings fairly embrace the contract set up by the defendant.

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

WARD, Justice,

concurring.

I concur that the judgment must be reversed and the cause remanded. The Appellants contend that Lots 18 and 19 were substituted for the Lots 17 and 18 as pled by the Appellees in their suit for specific performance. The trial Court has agreed with the Appellants, and has ordered specific performance of Lots 18 and 19. The Appellants have no ground to complain because of the defect in the Appellees’ pleading, and the judgment should not be reversed because of that complaint.

The Appellants’ real complaint is that the trial Court is ordering specific performance in the face of the Appellants’ summary judgment proof that the Appellees have not yet performed their agreement in accordance to the terms of the final contract between the parties. If, at a trial, the Appellants establish their contention, then the conveyance of Lots 18 and 19 should not be decreed, as the obligation to perform on the part of the Appellants is conditional according to their summary judgment proof. 52 Tex.Jur.2d Specific Performance sec. 150 at 697. Before the Appellees can then obtain their specific performance, they must perform all of their obligations under the contract or tender performance. Young v. City of Pearland, Brazoria County, 425 S.W.2d 391 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ ref’d n.r.e.).


author: NYE, Chief Justice.

text:
    C. R. ALSUP, Appellant, v. MERCANTILE NATIONAL BANK, Appellee.
    No. 1456.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 15, 1979.

      Fisher Alsup, Alsup & Alsup, Corpus Christi, for appellant.
    Robert D. Kilpatrick, Wood & Burney, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit brought by the appellee Mercantile National Bank against C. R. Als-up, Stan Howald, Joseph Zavaletta, and Gus Zavaletta to recover monies paid out of an account at the bank called Valley Capital Company. The trial was to the court without a jury which entered a default judgment against Howald, a take-nothing judgment against defendants Joseph Zavaletta and Gus Zavaletta, and entered judgment in favor of the bank against Alsup and Howald jointly and severally for $4,104.76, together with attorney fees of $1,368.25. Only Alsup complains of the trial court judgment on appeal.

On December 5, 1977, a checking account was opened at the Mercantile National Bank in the name of Valley Capital Company. At the time the account was opened, Howald and Alsup were present. The bank accepted an initial deposit of $1,000.00, and had Mr. Howald and Mr. Alsup sign a signature card which authorized checks signed by them to be drawn on the new account. Howald gave the bank officer an assumed name certificate which stated that the Valley Capital business was being operated as a general partnership and that the owners of such business were Howald, Alsup, and Joseph and Gus Zavaletta.

The evidence shows that Howald and Als-up opened an office in Corpus Christi conducting a business called Valley Capital. Alsup was in charge of running of the office portion of the business. During the course of the first month’s operation, approximately $10,000.00 had been deposited to the account and a number of checks had been written by Howald and Alsup against the account. As it turned out, some of the checks deposited to the account at the bank were returned marked, “Insufficient Funds.” This caused an overdraft at the bank in the amount of $4,460.09. The actual overdraft was created by nine checks written on the account and paid by the bank, eight of which were drawn by Alsup. Alsup’s checks totalled $4,104.76, the amount sued for by the bank.

During the course of the trial, Joseph and Gus Zavaletta denied that they were connected with the business in any way and denied that they had signed the assumed name affidavit or that they had any knowledge of its existence. The evidence that was further developed showed that Stan Howald was a “con artist,” and had left the country sometime after being served with citation in this suit and was nowhere to be found.

Alsup contends on appeal that he is not liable for the checks he wrote because they were written on the account of Valley Capital to pay the bills- of said company, that he made no representations to the bank that he was the owner of the account, or representations that he would guarantee or be responsible to the bank for any checks written against the account. Alsup argues that he had no control of the books, made no deposits to the account, and only knew the amount of the bank balance from information received from Howald. He emphasized that he was never the owner of the account and should not be held liable to the bank as such, as a matter of law.

The record shows that two of the eight checks that were drawn by Alsup, named Alsup as payee. These two checks were paid by the bank and ultimately created part of the overdraft. Alsup admitted that he signed and executed the assumed name certificate along with Howald. This certificate states on the instrument that the parties thereto had acknowledged the execution of the same before a notary public; were to conduct a business “indefinitely”; were to operate as a “general partnership”; and were the “owners” of the business. The certificate was filed of record in Cameron County, Texas. Alsup also admitted that he executed the signature card in front of the bank’s officer; was present when the assumed name certificate was given to the bank at the time the account was opened; but denied that he had any knowledge that Howald gave the certificate to the bank.

Alsup, as the drawer of the checks, ordered the Mercantile National Bank, as drawee, to pay the sums of money set forth on the checks to third-party payees. By drawing and issuing the checks, Alsup has, in effect, promised the bank that he, as an individual, would reimburse the bank in the event the checks were paid and an overdraft resulted. This is so because Alsup executed the checks in his individual name and not in some representative capacity. Section 3.403 of the Texas Business and Commerce Code provides in part as follows:

“An authorized representative who signs his own name to an instrument
(1) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;”

The Supreme Court, in addressing this section of the Business and Commerce Code, stated: “[A]ny person who signs a draft engages’that, upon dishonor, he will pay the amount thereof to the holder.” Griffin v. Eilinger, 538 S.W.2d 97 (Tex.Sup.1976). Alsup made no attempt to advise the various payees, or the bank in this case, that he was only executing the checks in a representative capacity. The burden was on him, in order to discharge any personal liability, to disclose his agency or other representative capacity of the company. This he did not do.

In addition, Alsup is liable to the bank for still another reason. He executed the assumed name affidavit before a notary and permitted it to be placed in circulation, representing to all who had actual or constructive notice (of the information on the certificate) that he was a partner of How-aid and an owner of the business. There was no dispute that the bank was authorized to accept checks written by Alsup by virtue of his personal signature which appeared on the company “account card” which he left with the bank. He has no standing in court to complain that he was neither the owner of the bank account nor liable to the bank for the creation of the overdraft. Even though he did not make any actual verbal representations to the bank at the time they opened the account, his silence amounted to an acquiescence of what took place. The Texas Uniform Partnership Act, article 6132b § 16(1) states as follows:

§ 16. Partner by Estoppel
“Sec. 16. (1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made . . . ”

If, after executing the partnership affidavit (assumed name certificate) and permitting it to leave his hands, he wanted to limit his liability, he had not only the statutory, but a common law duty to speak out. Compare Cox Enterprises, Inc. v. Filip, 538 S.W.2d 836 (Tex.Civ.App.—Austin 1976, no writ).

Appellant’s remaining two points of error concern the trial court’s award of attorney fees. The plaintiff bank plead for judgment in the amount of the overdraft plus reasonable attorney fees of $1,486.70. During .the course of the trial, the bank introduced evidence as to the reasonableness of the attorney fees in question. No exception to the bank’s pleadings were made by Als-up,. and no objections were leveled at the introduction of the evidence concerning the attorney fees. After judgment was entered, the appellant filed a motion for a new trial, but made no mention of the trial court’s judgment in awarding attorney fees to the bank. Now for the first time, Alsup complains to this Court that the plaintiff bank is not entitled to attorney fees.

Rule 324 requires an appellant to make some complaint of a trial court’s ruling in order to apprise the trial court of its erroneous action or ruling and allow the court to reconsider the propriety of its ruling. If such complaint is not made during the course of the trial, it is necessary to make such complaint known in a motion for new trial where such complaint, has not otherwise been ruled upon. If this is not done, the error, if any, is waived. Cobb v. Texas Distributors, Inc., 524 S.W.2d 342 (Tex.Civ.App.—Dallas 1975, no writ); Lewis v. Texas Employers’ Insurance Ass’n., 151 Tex. 95, 246 S.W.2d 599 (1952). Appellant’s points of error are overruled.

The judgment of the trial court is AFFIRMED.


text:
    LOS CAMPEONES, INC., Appellant, v. VALLEY INTERNATIONAL PROPERTIES, INC., Appellee.
    No. 1604.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 15, 1979.
    See, also, 568 S.W.2d 680.

      Joel W. Cook, Schlanger, Cook, Cohn & Mills, Houston, C. Fount Ray, Ransome & Ray, P.C., Brownsville, for appellant.
    Joel William Ellis, Harlingen, for appel-lee.
   OPINION

NYE, Chief Justice.

This is an appeal from an order entered by the trial judge which directed the District Clerk of Cameron County to return to the attorney for the appellee, Valley International Properties, Inc., cash deposits which appellee had deposited in the- registry of the trial court in lieu of a supersedeas bond during the pendency of a prior appeal. We are initially faced with appellee’s motion to dismiss which challenges the appeal-ability of the trial court’s order.

The initial controversy began on July 25, 1977, when Los Campeones, Inc., filed suit seeking an order directing Valley International Properties, Inc., to hold a shareholders’ meeting pursuant to Article 2.24 B of the Texas Business Corporation Act (Supp. 1978). Thereafter, on September 7, 1977, the trial court entered an order directing a shareholders’ meeting to be held on September 26, 1977. Valley International Properties, Inc., appealed from that order to this Court, and filed a cash supersedeas deposit in the amount of $15,000.00 in lieu of a supersedeas bond. On June 15, 1978, this Court affirmed the judgment of the trial court, and, on October 28, 1978, the Texas Supreme Court refused the application, finding no reversible error. Thereafter, Valley International Properties, Inc., filed an appeal in the United States Supreme Court. This Court, after hearing arguments of counsel, granted a motion of Los Campeones to increase the amount of the original cash deposit and ordered the super-sedeas increased to a total of $21,000.00 during the pendency of that appeal. Thereafter, the United States Supreme Court denied the appeal, and this Court issued its mandate on November 27, 1978.

Los Campeones, Inc., then filed a motion styled, “Amended Motion to Pay Plaintiff Damagés for Supersedeas,” under the same cause number as the original suit in the trial court. This motion alleged in substance that several specified events which occurred during the pendency of the prior appeal had damaged Los Campeones, Inc. In accordance with such allegations, the movant requested the trial court to order the funds deposited in the registry of that court be paid to Los Campeones. Valley International Properties, Inc., on the other hand, filed a motion requesting the trial court to order the District Clerk to return the funds that they had deposited in the registry of the court to them. Thereafter, the trial court heard evidence to consider the parties’ respective motions and determined that Los Campeones, Inc., should receive nothing and that the supersedeas funds should be returned to Valley International Properties, Inc. It is from this order that Los Campeones appeals.

Valley International Properties, Inc., contends that the trial court merely exercised its ministerial duty to give effect- to the judgment by holding a hearing and by entering an order requiring the return of the cash supersedeas bond to its attorney. Ap-pellee argues that the trial court’s order is not an appealable order subject to review and, therefore, this appeal must be dismissed.

We do not agree that the trial court was acting purely within its ministerial authority to give effect to the judgment. The trial court’s original judgment ordering a shareholders’ meeting to be held did not involve a monetary award to either party. We affirmed that judgment and our mandate which was issued after the completion of the entire appellate process as such, did not encompass the disposition of the supersede-as cash deposits. Such disposition could not be determined from the face of the record. We are of the opinion that the issues concerning the proper disposition of the super-sedeas cash deposit under the facts of this case involve more than the mere ministerial duty of enforcing the judgment. The trial court’s hearing and subsequent order disposing of such deposits entered after the issuance of our mandate exceeded the scope of the mandate. See Wilson Finance Company v. State, 348 S.W.2d 639, 641 (Tex.Civ.App.—Austin 1961, writ ref’d.); State v. Watts, 197 S.W.2d 197, 198-99 (Tex.Civ.App.—Austin 1946, writ ref’d.). Therefore, contrary to appellee’s conclusion, if the trial court had jurisdiction to enter such an order, we would have had jurisdiction to review the disposition of the cash supersedeas deposits in this appeal.

In considering the jurisdictional questions, it must be remembered that a supersedeas bond or a cash deposit in lieu of a supersedeas bond given by an appellant is a mere incident to the cause of action and judgment appealed from and is given to afford the adverse party the means of enforcing the judgment if the appeal or writ of error is not prosecuted with effect. Casray Oil Corporation v. Royal Indemnity Co., 165 S.W.2d 244 (Tex.Civ.App.—Galveston 1942) aff’d, 141 Tex. 33, 169 S.W.2d 955 (1943); Robertson v. Land, 519 S.W.2d 227 (Tex.Civ.App.—Tyler 1975, no writ); Crockett v. Logue, 515 S.W.2d 958 (Tex.Civ.App.—Waco 1974, no writ). All final judgments, unless otherwise provided by statute, may be superseded, pending appeal, by the filing of a supersedeas bond even though the judgment in question does not require a writ of execution or other process to enforce them. Continental Oil Company v. Lesher, 500 S.W.2d 183 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ). Rule 368, Texas Rules of Civil Procedure, provides in substance that when a proper su-persedeas bond has been filed, execution of the judgment, or so much thereof as has been superseded, shall be stayed.

In this case, the cash deposits in lieu of a supersedeas bond were filed in the registry of the trial court pursuant to Rule 364(e), Texas Rules of Civil Procedure, which provides as follows:

“Where the judgment is for other than money or property or foreclosure, the bond shall be in such amount to be fixed by the court below as will secure the plaintiff in judgment in any loss or damage occasioned by the delay on appeal.” (Emphasis added.)

Here, the initial cash supersedeas deposit was fixed by the trial judge in the amount of $15,000.00 in order to “secure the Plaintiff in judgment [Los Campeones, Inc.] in any loss or damage occasioned by delay on appeal.” Pursuant to Rule 365, Texas Rules of Civil Procedure, this Court, after a hearing, increased the amount of the cash supersedeas deposit during the pendency of the appeal to the United States Supreme Court to further protect Los Campeones, Inc., if in fact it had been damaged, occasioned by the delay on appeal.

The terms “loss or damage” within the meaning of Rule 364, and as used in the original- order fixing the amount of the cash deposit, refer to monetary or material losses ascertainable by proof, either by the judgment itself, or, where that is not conclusive, by evidence relating to proof of damages generally. See State v. Watts, 197 S.W.2d 197, 198 (Tex.Civ.App.—Austin 1946, writ ref’d.).

Appellant, Los Campeones, Inc., concedes that this Court (or the trial court) could not summarily ascertain- the amount of monetary damages, if any, occasioned by the delay in appeal because such damages were not apparent from the face of the record. Appellant also concedes, and we agree, that in such a situation when the judgment of the trial court is affirmed on appeal, it is necessary to resort to an independent suit for a determination of its entitlement to the cash supersedeas deposits. See Trent v. Rhomberg, 66 Tex. 249, 18 S.W. 510 (1886); Burck v. Burroughs, 64 Tex. 445 (Tex.Sup.1885); State v. Watts, 197 S.W.2d 197 (Tex.Civ.App.—Austin 1946, writ ref’d.); Harrison v. Barngrover, 118 S.W.2d 415 (Tex.Civ.App.—Beaumont 1938, writ ref’d.).

We have carefully examined the cases cited by appellant to support its contention that the respective parties’ motions filed in the trial court should be treated as independent suits regardless of their designation as “motions,” and find that the cases are distinguishable from the present case. See Custer v. McGough, 184 S.W.2d 668 (Tex.Civ.App.—Eastland 1944, no writ); Keith v. Keith, 286 S.W. 534 (Tex.Civ.App.—Austin 1926, no writ). Each of the cited cases involved a subsequent petition filed under the designation “motion,” which sought to modify the custody provisions of a prior divorce decree. In each instance, the suit was treated as an independent suit because the “motion” sufficiently alleged facts showing changed circumstances against the opposing party’s claim that the prior divorce decree was res judicata as to the issues before the court in the subsequent suits seeking modification. In addition, each was treated as an independent suit by the issuance of service of process.

Rule 369, Texas Rules of Civil Procedure, provides, in relevant part, as follows:

“In every case removed by appeal . . , the clerk of the trial court shall . keep the said cause in its proper place on the docket for disposition after the appeal has been decided; and immediately upon return of the mandate from the appellate court shall, if the judgment has been affirmed . . . remove the case from the docket and proceed to issue process to enforce the judgment as in other cases; . . . ” (Emphasis added.)

When, as here, the appellate court affirms the judgment of the trial court, the clerk of such trial court must remove the case from the docket immediately upon return of the mandate from the appellate court, and the trial court must then give effect to the judgment by executing it through proper orders and process. Myers v. Myers, 515 S.W.2d 334 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ dism’d.); 4 Tex.Jur.2d Part II, Appeal & Error §§ 984, 985 (1974). See Burck v. Burroughs, 64 Tex. 445, 447 (1885). The acts of issuing such execution and orders are ministerial duties of the trial court. 4 Tex.Jur.2d, Part II, § 987, p. 719 (1974).

Here, the trial judge attempted to exercise more than the ministerial duties of enforcing the judgment to hold a shareholders’ meeting. The “motions” were not treated as the institution of an independent suit. No service of process was served on appellee. We conclude that the trial judge acted without jurisdiction in hearing the motions and in entering the order directing the return of the supersedeas deposit to appellee’s attorney. Accordingly, we are without jurisdiction to consider this appeal.

Appeal dismissed.

ON MOTION FOR REHEARING

In our original opinion, we concluded that the trial judge exceeded his jurisdiction when, after a hearing, he entered an order directing a return of the supersedeas deposits to appellee’s attorney. We dismissed the appeal.

Both appellant and appellee have filed motions for rehearing for our consideration. Appellee, Valley International Properties, Inc., again urges us to consider that the order entered by the trial judge is final and not appealable. In support of this position, appellee presents arguments concerning judicial economy. As meritorious as these arguments sound, they were considered before. Appellee’s motion for rehearing is overruled.

Appellant contends in its “motion for revision of judgment and for rehearing” that, in addition to dismissing the appeal, this Court should have entered a judgment reversing the trial court’s order in question. This point is well taken. . Where the trial court does not have jurisdiction to render a judgment, the proper practice is for the reviewing court to set the judgment aside and dismiss the appeal. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961); Eubanks v. Hand, 578 S.W.2d 515, 517 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n. r. e.); Travelers Express Co., Inc. v. Winters, 488 S.W.2d 890 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.). Accordingly, we hereby modify our original judgment, set aside the trial court’s order of July 12,1979, and dismiss the appeal.

      . Supersedeas has been defined generally as “[a] suspension of the power of a trial court to issue an execution on judgment appealed from. . ” Black’s Law Dictionary (4th Ed. 1951), p. 1607.


author: JAMES, Justice.

text:
    MORAN CORPORATION et al., Appellants, v. SEVEN J STOCK FARM, INC., Appellee.
    No. 6073.
    Court of Civil Appeals of Texas, Waco.
    Nov. 20, 1979.

      Dave McNeill, Jr., Vinson & Elkins, Thomas H. Lee and Betsy Rice Coleman, Foreman, Dyess, Prewett, Rosenberg & Henderson, Houston, for appellants.
    John M. O’Quinn, Riddle, Murphrey, O’Quinn & Cannon, Houston, for appellee.
   OPINION

JAMES, Justice.

This is a venue case. Plaintiff-Appellee Seven J Stock Farm, Inc. sued Moran Corporation, Morgas Co., Glen Rose Corp., Texas Intrastate Gas Co., Union Oil Co. of California, and J. R. Parten, seeking damages and other relief, for gas and/or other hydrocarbons taken from land owned by Seven J in Houston County, Texas. The suit was filed in Madison County, Texas, the residence of Defendant Parten. All Defendants, except Parten, timely filed pleas of privilege to be sued in the counties of their respective residences; or, in the alternative, to be sued in the county where the land is located under Subdivision 14 of Article 1995, Vernon’s Texas Civil Statutes. Plaintiff’s Controverting Affidavit contended that venue was properly brought in Madison County because one of the Defendants (Parten) was a resident of Madison County and the other Defendants were proper parties to the suit. The suit was originally filed on June 6,1977. On January 24,1979, the venue hearing was held. Immediately before the hearing the Plaintiff, without objection from the Defendants, filed its First Amended Original Petition and thee Amended Controverting Affidavits incorporating the amended petition. On the basis of this amended petition and the allegations therein, the Defendant-Appellants waived their pleas to be sued in the counties of their respective residences and proceeded to the hearing claiming only that the suit was one which came under the mandatory provisions of Subdivision 14 of Art. 1995. In the hearing, over objection of the Defendants, the trial court heard testimony of a director of the Plaintiff Corporation and the testimony of the Plaintiff’s attorney regarding the true “nature of the suit,” the contention being that the Plaintiff was seeking a declaration of his rights under an oil and gas lease and that the suit was therefore brought in contract and was not within the purview of Subdivision 14. The trial court thereafter at the conclusion of the evidence allowed the Plaintiff to file a trial amendment setting forth this contention, again over the objections of the Defendants.

The Defendants’ pleas of privilege to transfer the suit to Houston County, the location of the land, was overruled and the Defendants have perfected appeal, assigning the following points of error:

1) The trial court erred in overruling Appellants’ Pleas of Privilege to be sued in Houston County because, as a matter of law, this case involved a cause of action for the recovery of land or damages thereto within the meaning of Subdivision 14 of Art. 1995 and the land in question lies in Houston County, Texas.

2) The trial court erred in considering the unverified allegations of the Plaintiff’s trial amendment in determining the nature of the Plaintiff’s case, because those allegations were never incorporated in, nor made a part of, Plaintiff’s Amended Controverting Affidavits and were not therefore before the court for the purposes of the hearing on the pleas of privilege.

3) The trial court erred in considering evidence to determine the nature of Plaintiff’s cause of action because that issue should have been determined only from the pleadings.

4) The trial court erred in considering evidence to determine the nature of Plaintiff’s cause of action because such evidence was improperly admitted over the objection that it was unsupported by any allegations in the Plaintiff’s Amended Controverting Affidavits.

5) The trial court erred in holding that the nature of the Plaintiff’s case, even considering the allegations of the trial amendment, did not fall within the purview of Subdivision 14 of Art. 1995.

6) The trial court erred in permitting Plaintiff’s trial amendment, if the effect of such amendment was to alter, for venue purposes, the nature of the Plaintiff’s cause of action.

We sustain Appellants’ Points Nos. 1, 3 and 5 and hold that, as a matter of law, this case involves a cause of action for the recovery of land or damages thereto within the meaning of Subdivision 14 of Art. 1995.

In determining the applicability of Subdivision 14, there are only two “venue facts” that are pertinent: (1) the nature of the suit and (2) the county in which the land involved is located. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954). All parties in this case stipulated that the land was located in Houston County, so the only question presented for determination in the venue hearing was the “nature of the suit.”

The nature of the suit is generally to be determined from the facts alleged in the Plaintiff’s pleadings, the rights asserted therein, and the relief sought. Renwar Oil Corporation v. Lancaster (Tex.1955) 154 Tex. 311, 276 S.W.2d 774; Scott v. Whittaker Pipeline Constructors, Inc. (Austin Tex.Civ.App.1974) 517 S.W.2d 406, NWH; Ashby v. Delhi Gas Pipe Line Corporation (San Antonio CA 1973) 500 S.W.2d 686, writ dismissed. In this case, the Plaintiff’s First Amended Original Petition alleges that:

1) “These Defendants acting jointly and together, claim the right to extract and sell or use said gas or other hydrocarbon products belonging to Plaintiff and in fact, have been doing so and have not properly paid Plaintiff for its share of said gas or other hydrocarbons in question. . . . Any division order or other document under which these Defendants, or any one of them, claim any right to take, sell or use gas or hydrocarbons in which your Plaintiff has an interest and to pay Plaintiff less than their true market value has been revoked and cancelled or are hereby cancelled and revoked . . . ”

2) “Defendants jointly and in concert have taken, sold and used a great quantity of gas and other hydrocarbons in which your Plaintiff had an interest and have failed to properly account to Plaintiff for same and to pay Plaintiff for same. . .”

3) “Plaintiff would further show that these Defendants have made certain decisions concerning the manner of developing the oil and other hydrocarbons in question which work to the detriment of your Plaintiff’s rights and have resulted in damages to your Plaintiff. Said decisions are either the result of a failure to exercise prudent business judgment or else were the result of conflicts of interest in which Defendants chose to promote their own interests to the detriment of your Plaintiff’s interest.”

The relief sought by the Plaintiff is stated as follows: “Plaintiff seeks a declaratory judgment from this Court declaring the rights of Plaintiff concerning the gas and other hydrocarbons in question. . Alternatively, Plaintiff requests judgment that Plaintiff can have its share of the gas or other hydrocarbons in kind and that Defendants be required to carry that gas at a reasonable fee. . . . As to the gas or other hydrocarbons that have been taken, sold or used by these Defendants, in violation of Plaintiff’s rights, Plaintiff seeks judgment from all the Defendants jointly and severally for money damages Plaintiff requests an accounting and determination of the monies owed Plaintiff by these Defendants as a result of the matters alleged herein. . . . Plaintiff seeks recovery of punitive damages to the extent shown. . . . This pleading seeks recovery for past underpayments and damages resulting from the conduct of these Defendants and also seeks the declaration of Plaintiff’s rights concerning any future gas or other hydrocarbons taken, sold or used by Defendants in which your Plaintiff has an interest.” Neither the First Amended Original Petition nor the Amended Controverting Affidavits made reference to any lease agreements between the parties, nor did the pleadings admit of any specified proportional interests of the parties. In fact, the only reference to any “documents” whereby the Defendants claimed an interest in the land was in Paragraph III of the First Amended Original Petition wherein the Plaintiff expressly revoked or cancelled “any division order or other document under which these Defendants, or any one of them, claim any right to take, sell or use gas or hydrocarbons in which your Plaintiff has an interest . . . ” These pleadings are sufficiently broad to allow the Plaintiff to adjudicate “title” to the minerals in question and thus to adjudicate claims clearly within the purview of Subdivision 14 of Art. 1995. Our courts have held that a suit seeking an accounting and recovery for oil removed and to be removed is an action within the meaning of Subdivision 14, Art. 1995. Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113 (1933, opinion adopted); Continental Oil Co. v. Anderson (Eastland Tex.Civ.App.1966) 405 S.W.2d 622, writ dismissed. Our courts have also held that venue is properly fixed under Subdivision 14 in suits seeking the recovery of damages arising from the improper development of mineral production. Natural Gas Distribution Corporation v. Williams (Beaumont Tex.Civ.App.1956) 292 S.W.2d 353, error dismissed; Fagadau v. Sand Springs Home (Amarillo Tex.Civ.App.1960) 337 S.W.2d 744, error dismissed. In the case at bar the Plaintiff’s petition alleges both a cause of action for an accounting and a cause of action for damages arising from improper development of the mineral production.

Even though the petition may be construed to include additional actions which are contractual in nature, Subdivision 14 is a mandatory venue provision and would prevail to fix venue under the allegations set forth above. A permissive statute must yield to a mandatory provision of the venue statute. Langdeau v. Burke Investment Co. (Tex.1962) 163 Tex. 526, 358 S.W.2d 553; also see Scott v. Whittaker Pipeline Constructors, Inc. (Austin Tex.Civ.App.1974) 517 S.W.2d 406, no writ.

The trial court allowed the Plaintiff to introduce evidence “explaining and clarifying” the nature of the suit. The Defendants objected to any consideration of this evidence claiming that the explanations of the Plaintiff were irrelevant since the “nature” of the suit should be determined from the allegations in the pleadings and not from the testimony of the Plaintiff. The Plaintiff asserts that such evidence was properly considered since the court can hear parol evidence to explain and clarify unclear and ambiguous pleadings, and that the pleadings in this case were unclear and ambiguous and thus required clarification.

As stated initially in this opinion, the nature of a suit, for venue purposes, is generally determined by the facts and rights asserted in the Plaintiff’s pleadings, and by the relief sought. Renwar Oil Corporation v. Lancaster, cited supra. It is true that courts will hear evidence to rebut the Plaintiff’s allegations when it is asserted by the opposing party thát the Plaintiff’s case was fraudulently cast to confer venue or when the Plaintiff, by his own admission, disclaims his allegations concerning his right to recover realty or to recover for damages thereto, or when the allegations in the pleadings are deceptively vague and ambiguous. Gilbert v. Gilbert (San Antonio Tex.Civ.App.1946) 195 S.W.2d 930, on certified question 145 Tex. 114, 195 S.W.2d 936; Olson v. B. W. Merchandise, Inc. (Austin Tex.Civ.App.1965) 388 S.W.2d 737, NWH; Jones v. Tetterton (Ft. Worth Tex.Civ.App.1965) 389 S.W.2d 505, NWH. In such cases, however, the Plaintiff was seeking to establish venue under Subdivision 14 on the basis of his own pleadings and the Defendant was claiming that the pleadings cannot be relied on to establish venue because they are fraudulently drafted, or they are contrary to the admissions of the Plaintiff, or they are ambiguous so as to obscure the true nature of the suit. In such cases, obviously, parol evidence should be admitted to explain or clarify the true nature of the suit. In the case at bar, however, the Defendant is seeking to establish venue under Subdivision 14 in reliance on the Plaintiff’s pleadings. The Plaintiff cannot then be heard to disclaim his own pleadings stating that they are vague and ambiguous requiring parol evidence to clarify and explain the true nature of the suit. When confronted with a Defendant’s Plea of Privilege, it is the Plaintiff’s burden to plead venue facts which clearly support his alleged venue exception.

We therefore hold that any consideration of such evidence by the trial court was erroneous and that the pleadings alone should be looked to for a determination of the nature of the action sought.

We do not reach Appellants’ Points Nos. 2, 4, and 6 regarding the trial court’s action in permitting the filing of the Plaintiff’s trial amendment. Whether or not the trial amendment was properly received, we agree with Appellants’ fifth contention that the pleadings as a whole, even including those contained in the Plaintiff’s trial amendment, as a matter of law, allege an action within the purview of Subdivision 14.

For the reasons hereinabove stated, we hold that the case at bar is one which must be tried in the county where the land lies under the provisions of Subdivision 14 of Article 1995, V.T.C.S., and that venue therein properly lies in Houston County, Texas. It is accordingly ordered that the judgment of the trial court be reversed and rendered transferring said cause to Houston County, Texas.

REVERSED AND RENDERED.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    ALLIED DEVELOPMENT COMPANY, Appellant, v. MORT ROZELL COMPANY, Appellee.
    No. 6880.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 21, 1979.

      Dibrell, Dotson, Dibrell & Dibrell, T. Kel-lis Dibrell, San Antonio, for appellant.
    Daniel R. Rutherford, San Antonio, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a suit on a promissory note tried before a jury, and judgment was rendered for the Plaintiff. We affirm.

Speaking of the parties as they appeared in the trial Court, Plaintiff brought this suit on a promissory note executed by the Defendant and payable to the Plaintiff, and the Defendant imposed the defense of failure of consideration, pleading that the note was for the balance due on a contract wherein Plaintiff agreed to perform certain excavation and paving work for the Defendant, but that the work was not done in a good and workmanlike manner in accordance with the contract. Three issues were submitted to the jury by which they found (1) that the Plaintiff advised an agent for the Defendant that the asphalt should not be laid at the time that it was, (2) that the agent for Defendant, contrary to Plaintiff’s advice, instructed Plaintiff to lay the asphalt, and (3) that the agent for the Defendant had the authority to instruct the Plaintiff to lay the asphalt at the time it was laid.

Appellant presents six points of error which relate to two basic issues. First, the admission of certain evidence relating to the special issues, and, second, the submission of those issues themselves without pleadings or evidence on which they could be based.

As we view the record, any error in the submission of the issues or the evidence in support of them is harmless for the reason that the issues themselves are surplusage. The case pled by Plaintiff was one pure and simple for the balance due on a promissory note and attorney fees as provided in the note. The note was introduced without objection, and evidence of the payments made and the balance due was also introduced without objection; there was no evidence offered to the contrary as to those items. Thus, Plaintiff’s case as pled was established as a matter of law. Those matters are not questioned on appeal.

As noted, the defense was one of failure of consideration. The Defendant offered no issues to make out that defense. The three issues submitted were offered by the Plaintiff and are in the nature of a rebuttal or reply to possible defense issues of failure of consideration. Defendant objected to these issues, and on appeal urges that the Court erred in submitting them because they were not supported by pleadings or evidence. It is evident that any error in submitting these issues is harmless, for, if we agreed with Appellant that they should not have been submitted and their answers now disregarded, it would not affect the judgment. That judgment is based on a promissory note which Defendant has admitted that it signed, and the balance due is not contested. No issues were necessary to establish Plaintiff’s case.

The defense to the note was one of failure of consideration. No issue was requested or submitted on that defense. Rule 279, Tex.R.Civ.P., states that “[u]pon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; .” Under that rule, the defense of failure of consideration was waived. Denton Publishing Company v. Boyd, 460 S.W.2d 881 (Tex.1970); 3 McDonald, Texas Civil Practice sec. 12.36.2 at 433 (1970), and authorities there cited.

Since the three issues submitted were not material to the matter in controversy — the suit on the promissory note — it is well settled that they may be ignored in rendering judgment. T. A. Manning & Sons, Inc. v. Ken-Tex Oil Corporation, 418 S.W.2d 324 (Tex.Civ.App.—Austin 1967, writ ref’d n.r. e.); Teas v. Republic National Bank of Dallas, 460 S.W.2d 233 (Tex.Civ.App.—Dallas 1970, ref'd n.r.e.).

It follows that, under the state of the record in this case, the evidence complained of as being inadmissible is of no consequence. The issues to which the evidence was directed being immaterial, the evidence admitted in support of them, if erroneously admitted, would be harmless error.

The judgment of the trial Court is affirmed.


author: MASSEY, Chief Justice.

text:
    Constance RONDON, Appellant, v. William NORTON, Appellee.
    No. 18154.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 29, 1979.

      Lipscomb, Zachry & Kearney and Cue L. Lipscomb, Fort Worth, for appellant.
    John A. Brady, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

The question on appeal is whether the lien holder of a motor vehicle registered under provisions of Tex.Rev.Civ.Stat.Ann. art. 6687-1 (1977), the Texas Certificate of Title Act, is an indispensable party, rather than merely a proper party. The question is arisen in litigation between a non-title holder and the holder of the legal title to settle equitable title thereto under a trust theory.

Pursuant to a trial before the court, without a jury, plaintiff William Norton obtained judgment against defendant Constance Rondon on a trust theory. There were no other parties to the suit at time of trial and judgment. Indeed, plaintiff discovered for the first time during the course of the trial that defendant, in whose name appeared the record legal title to the subject automobile, had borrowed money and permitted a lien on such vehicle to be registered as security for the loan.

On her appeal the defendant presents a single point of error, viz.:

“The Trial Court erred in overruling Appellant’s Motion for New Trial and in Arrest of Judgment, with notice of the absence of a necessary party; namely, Western Savings and Loan Association, first lienholder of the automobile in question.”

In this non-jury case no motion for new trial was necessary. By liberal construction the point seeks reversal for a new trial because of non-joinder of a party claimed to be indispensable to rendition of a valid judgment. If that truly is what occurred, the flaw in the judgment would be noticed by the appellate court, in that fundamental error would be apparent by the court’s having proceeded in the absence of the indispensable party. Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.1966).

The lienholder would not be an indispensable party unless the judgment rendered by the trial court concluded its rights. In other words the lienholder would not be an indispensable party unless judgment operated to destroy ór impair its right to have repaid (by defendant) the balance of the indebtedness owed or to destroy or impair its security therefor, represented by its lien on the automobile. 44 Tex.Jur.2d, p. 238, Parties § 86, “(Time of objection and waiver)—On appeal”.

Obviously the judgment did not impair the lienholder’s right to recover its debt. The only remaining question would relate to loss or impairment of its lien. Aside from other considerations, the question is resolved because the lienholder’s security is preserved by provisions of the Certificate of Title Act. See Sections we deem especially appropriate, viz.: Sec. 35, “Transfer by operation of law; new certificate”; Sec. 41, “Security interest; perfection”; and Sec. 42, “Notation of security interest; filing.” Because the security is preserved, unimpaired, the lienholder was not an indispensable party.

Viewing the defendant’s complaint as presented because of the lienholder’s absence as a necessary party, i. e., one who simply ought to be joined if complete relief is to be accorded between those already parties, it is apparent that defendant has waived any right to complain because of antecedent failure to complain of the lienholder’s absence as a party prior to trial. Furthermore, to compel the lienholder’s joinder would have been a matter of discretion for the trial court even if timely urged, and under the circumstances of this case for the court to have proceeded with the trial could in no event have amounted to an abuse of discretion. Tex.R.Civ.P. 39, “Join-der of Persons Needed for. Just Adjudication”; Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891, 893.

Judgment is affirmed.


author: BISSETT, Justice.

text:
    James Edward HARRELL, Appellant, v. Frances Rosetta HARRELL, Appellee.
    No. 1462.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 29, 1979.
    Rehearing Denied Dec. 20, 1979.
    Mark H. Giles, Stone, Berryman & Giles, Inc., Corpus Christi, for appellant.
    Jack E. A. White, North & White, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This case involves an appeal from the trial court’s division of property incident to a divorce decree. The wife-appellee, Frances Harrell, brought suit against the husband-appellant, James Harrell, for divorce, conservatorship of a child and division of the property of the parties. The case was tried before a judge on June 26, 1978. Upon his own motion at a hearing upon a motion for judgment, the trial judge ordered a new trial. The case was again tried on October 4, 1978. Following the second trial, the court, on October 24, 1978, rendered a decree of divorce, awarded conser-vatorship of the child to the wife and divided the property between the parties. The husband has appealed.

The only question to be answered by this Court is whether the trial court abused its discretion in dividing the property of the parties in the manner in which it was divided. We answer that question in the negative.

It is well settled that Texas divorce courts are given wide latitude in making a division of the property owned by the parties. Upon appeal, where the issue is the manner in which the property owned by the parties was divided, the judgment of the trial court will be reversed only where there is a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.Sup.1974); Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d). Where there are no findings of fact or conclusions of law (as is the case here), it is presumed that the trial court considered all of the circumstances of the parties as shown by the record in arriving at its division of the property. Musslewhite v. Musslewhite, 555 S.W.2d 894 (Tex.Civ.App.—Tyler 1977, writ dism’d); Whittenburg v. Whittenburg, 523 S.W.2d 797 (Tex.Civ.App.—Austin 1975, no writ); See Morin v. Morin, 561 S.W.2d 263 (Tex.Civ.App.—Corpus Christi 1978, no writ).

In the exercise of its discretion, the trial court may properly consider, among other factors, the age and physical conditions of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse (assuming there is an innocent spouse) would have received from a continuation of the marriage, and the relative abilities of the parties. Pickitt v. Pickitt, 401 S.W.2d 846 (Tex.Civ.App.—Tyler 1966, no writ); Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.—Eastland 1964, no writ). See Trevino v. Trevino, 555 S.W.2d 792 (Tex.Civ.App.—Corpus Christi 1977, no writ).

The division made by the trial court judge in the case at bar is set out in the accompanying footnote.

The essence of appellant’s complaint is that the trial court abused its discretion because it divided the estate in a grossly disproportionate manner. For purposes of the appeal, we shall take as true the appellant’s estimation of his net share as being, on the high side, $68,464.00. Likewise, we shall take as true the appellant’s estimation of the appellee’s share as being, on the high side, $116,865.00. Our primary task is the determination of whether $20,000.00 of the cash awarded to the appellee should be deducted from the $116,865.00 figure before actually comparing the division of the community property on the ground that it represents a valid separate property claim by the appellee.

The central dispute in this case over whether the court’s award of $20,000.00 cash to the appellee should be considered as part of the division of the community or as a separate property claim requires a review of the record. The Vick Lane property, the sale of which produced the $20,000.00 cash award, was purchased by the parties during their marriage. Of the purchase price for the house, approximately $29,000.00 came from the proceeds of an earlier sale of property owned by the appellee at the time of her marriage to the appellant. When she married the appellant in 1964, the ap-pellee owed $17,200.00 on this house. When the house was sold, this debt had been reduced to $12,000.00. In addition, approximately $4,000.00 in community funds were expended by the parties on improvements to the Vick Lane property.

The right of reimbursement for separate funds utilized in developing the community estate is an equitable right which may be considered by the trial court in the division of the property of the parties. Horlock v. Horlock, 533 S.W.2d 52 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ dism’d).

At the trial, the appellant disputed the appellee’s claim for equitable reimbursement, but agreed to an “offer” of $20,000.00 to the appellee for her contributions to the Vick Lane property. There was sufficient evidence, however, that the appellee was entitled to at least $10,000.00 as an equitable reimbursement for separate property funds expended by her on the Vick Lane property. Hence, the percentage split is not as disproportionate as the appellant contends.

We also note that the appellant was awarded the entire value of his retirement program at his place of employment. The value of this pension, assuming he works until normal retirement age, is approximately $54,000.00. Additionally, while the appellant was steadily employed for approximately $18,000.00 a year, the appellee, who was awarded managing conservator-ship of the marriage’s only issue, was unsure at the time of trial whether she even had a job. Assuming, however, that appel-lee was employed, her salary was only about one-half of the appellant’s salary.

In summary, we are not convinced that the division of property in this case was as disproportionate as appellant contends. Furthermore, even assuming appellant has correctly calculated the percentage distribution of community property, he has wholly failed to show this Court a total lack of circumstances which could conceivably justify the trial court’s action. The division of community property need not be made equally. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Bokhoven v. Bokhoven, 559 S.W.2d 142 (Tex.Civ.App.—Tyler 1977, no writ). Mercer v. Mercer, 503 S.W.2d 395 (Tex.Civ.App.—Corpus Christi 1973, no writ). Thus, appellant has not met his burden of establishing an abuse of discretion by the trial court.

The judgment of the trial court is AFFIRMED.

      . “Respondent, James E. Harrell, will have as his sole and separate property, and Petitioner is hereby divested of all interests therein, the following:
      All cash in Respondent’s possession, whether in his name, or in the name of a third person, and over which he exercises custody or control;
      The residence and lot located at 2800 Harrington, Corpus Christi, Nueces County, Texas, and the indebtedness thereon;
      Three Flour Bluff lots;
      Two Suburban Acres lots and the house trailer and improvements located thereon;
      The Hillside Heights lot number 7, located on Manta Lane, near the City Limits of Corpus Christi, Nueces County, Texas, and the indebtedness thereon;
      All the Tuleta, Texas lots (being six Tuleta lots and two Beeville lots);
      The furniture and personal possessions in Respondent’s possession;
      All interests in the Tennessee (National) Life and Casualty life insurance;
      Respondent’s tools, including the backhoe and other assorted equipment;
      The following vehicles: a 1971 pickup, a 1965 flatbed truck, a 1967 Volvo automobile and a 1959 pickup;
      The Suntide savings and Suntide retirement; The proceeds from the sale in May, 1976, of the house and lot located at 10218 East Harrington, Corpus Christi, Nueces County, Texas.
      Respondent is ORDERED to pay the following community debts:
      Sears, Roebuck & Company, in the approximate amount of $600.00;
      Woolco, in the approximate amount of $100.00;
      J. C. Penney, in the approximate amount of $80.00;
      Wards, in the approximate amount of $100.00;
      The SBA loan in an unknown amount;
      The balance due attorneys North, White and Blackmon for their defense of the Stevens suit, being an amount of $540.00.
      Respondent is ORDERED to pay these debts within ten (10) days of the date this Order becomes final.
      Respondent is ORDERED to pay all bills he has personally incurred since June 1, 1977, and will hold Petitioner harmless from claims arising out of his untimely payment of such debts, including attorneys fees, interest, and costs related to the collection of such debts by his creditors.
      Petitioner, Frances R. Harrell, will have as her sole and separate property and Respondent is hereby divested of all interest therein, the following:
      The 1971 GMC van, being motor vehicle number GE105U115429;
      Proceeds from the salvage of the 1974 Torino Ford automobile, being an approximate amount of $2,400.00;
      Furniture and personal possessions in the possession of Petitioner;
      All cash in the possession of Petitioner, whether in her own name or in the name of a third person, and over which she exercises custody or control;
      Income tax refund check for tax year 1977, in the amount of $1,915.00; and Respondent is ORDERED to endorse said check to Petitioner within ten (10) days of the day this Order becomes final. •
      Cash as follows:
      $20,000.00 to be paid Petitioner out of the net proceeds ($58,417.48) from the sale of the Vick Lane property, such proceeds now being held in escrow by the Stewart Title Company, Corpus Christi, Texas (title agent: Jo Ann Mills), and being further described as Stewart Title Company File No. 55085, Harrell Sale, Hillside. Heights, Vick Lane Property:
      $72,000.00 cash payable out of the remainder of the Vick Lane escrow account held by Stewart Title Company, above referenced, and out of the net proceeds of the sale of the Don Quixote property (approximately $56,-000.00), such sale being handled by the Lawyers Title Company, 415 North Water, Corpus Christi, Texas (title agent: Eli Lipner), and further described as the Harrell Sale to Warner, Don Quixote property, 10100 Leopard Street, Corpus Christi, Texas;
      For a total cash award of $92,000.00.
      All interests in that certain house and lot located in Indianapolis, Indiana, which Petitioner has obligated herself to buy.
      Petitioner is ORDERED to pay all bills she has personally incurred since June 1, 1977, and will hold Respondent harmless from claims arising out of her untimely payment of such debts, including attorney fees, interest, and costs related to the collection of such debts by her creditors.
      The parties are hereby ORDERED to execute and deliver such deeds, assignments, documents of title and other instruments necessary to carry out the terms of this Order within ten (10) days after this Order becomes final.
      Each party is ORDERED to report and pay one-half (V2) the capital gains tax incurred on sale of the Vick Lane and Don Quixote properties, regardless of the division of said properties herein.”


text:
    Bobby PETERS, Appellant, v. Jerry PARKER et al., Appellees.
    No. 6097.
    Court of Civil Appeals of Texas, Waco.
    Nov. 29, 1979.
    Rehearing Denied Dec. 27, 1979.

      James E. Ferguson, Harry L. Dulick, Ferguson & Dulick, Inc., Cleburne, for appellant.
    Jack C. Altaras, Altaras, Altaras & Pritchard, Cleburne, Fred M. Barker, Weatherford, for appellees.
   OPINION

JAMES, Justice.

This is a venue case. Plaintiff-Appellant Bobby Peters sued Defendants-Appellees Jerry Parker and Billy R. Cain in Johnson County for damages growing out of, among other things, the alleged conversion by Defendants of Plaintiff’s horse trailer. Defendants Parker and Cain, being residents of Parker County, Texas, filed pleas of privilege to be sued in the county of their residence. Defendant Cain is Sheriff of Parker County. Plaintiff controverted both Defendants’ pleas of privilege under Subdivisions 9 (Crime of Trespass) and 29 (Libel or Slander) of Article 1995, Vernon’s Texas Civil Statutes. We will concern ourselves only with Subdivision 9.

After hearing on the venue question, the trial court by its order sustained both pleas of privilege and ordered the cause transferred to Parker County, from which order Plaintiff appeals. We hold that venue of the cause properly lies in Johnson County, and thereby reverse and render the trial court’s judgment.

The pertinent facts are undisputed. Plaintiff-Appellant Peters and Defendant-Appellee Parker entered into an oral agreement whereby Parker agreed to sell Peters a horse trailer, and Peters agreed to sell and transfer a registered quarter horse to Parker. On October 2, 1978, Defendant Parker executed and gave to Plaintiff Peters a bill of sale to the trailer, and at this same time Peters took possession of the trailer. Plaintiff Peters agreed to furnish the registered quarter horse to Defendant Parker, which horse was at the time located in Palo Pinto County. Parker took possession of the horse; and thereupon, Peters furnished Parker two transfers to thé horse, one of which transfers was not in Peters’ name. One of the transfers was in the name of a man named Rodderback, and the other was in Peters’ name. Plaintiff Peters signed Mr. Rodderback’s name to the transfer (in Rodderback’s name), and also signed to Parker the other transfer which was in his own name. These transfers were sent to the Quarter Horse Association in Amarillo, Texas, which Association refused to recognize the transfers. When the Quarter Horse Association refused to recognize Defendant Parker as record owner of the horse, Parker, contacted Plaintiff Peters and requested the proper instruments to show that he, Parker, was the record owner of the horse. Defendant Parker contacted Plaintiff Peters several times concerning proper registration of the horse between October 1978 and January 1979; however, during this time Plaintiff Peters had not cleared the registration papers. In January 1979, Defendant Parker conferred with Defendant Billy R. Cain, Sheriff of Parker County, about the matters pertaining to his sale of the trailer and purchase of the horse.

On January 12, 1979, Parker and Sheriff Cain saw Plaintiff Peters on the side of a highway in Johnson County and talked to Peters on this occasion about the trailer and the registration papers for the horse, on which occasion Peters informed Parker and Sheriff Cain that Parker would receive the registration papers soon. There is testimony that on this occasion Parker demanded return of the horse trailer, and Peters refused to deliver the same.

By January 25, 1979, Parker still had not received the registration papers on the horse, whereupon Sheriff Cain on said last-named date filed a complaint in Parker County against Peters for theft, pursuant to which a warrant for the arrest of Peters was issued. On that same day (January 25, 1979) Sheriff Cain took the warrant to the Johnson County Sheriff’s office, after which Plaintiff Peters was arrested. Meanwhile, Sheriff Cain asked a deputy sheriff of Johnson County if it would be all right for him (Sheriff Cain) to send Parker over to Peters’ premises to pick up the trailer, whereupon said deputy sheriff said this would be permitted. Then Sheriff Cain contacted Parker and told him to go to Peters’ premises (located in Johnson County) and pick up the trailer. Acting under Sheriff Cain’s instructions, Parker went to Peters’ premises, took possession of the trailer and hauled same back to Parker County. Peters was not present when Parker took the trailer, and same was taken without Peters’ knowledge or consent.

Plaintiff Peters filed suit in a District Court of Johnson County against Defendants Parker and Sheriff Cain for damages for slander, conversion, and false arrest. As stated, both Defendants filed Pleas of Privilege to be sued in Parker County, the county of their residence. Plaintiff Peters filed controverting affidavits to said Pleas of Privilege, controverting, inter alia, under Subdivision 9 (Crime or Trespass), of Article 1995, to maintain venue in Johnson County. After venue hearing, the trial court sustained both Pleas of Privilege, from which action Plaintiff Peters appeals.

Plaintiff-Appellant’s second point of error asserts the trial court erred in sustaining both Defendants-Appellees’ Pleas of Privilege because Plaintiff-Appellant proved by a preponderance of the evidence a cause of action for trespass or conversion in Johnson County, and therefore venue of this cause was properly laid in Johnson County under Subdivision 9 of Article 1995, Vernon’s Texas Civil Statutes. Although Appellant says in his point of error that Appellant has proved “by a preponderance of the evidence” a cause of action for trespass or conversion in Johnson County, yet in his brief Appellant’s argument and authorities assert that the evidence conclusively establishes that a conversion was committed in Johnson County, for which Appellant prays for a reversal and rendition of the cause. Upon this basis we sustain this point of error, hold that venue of this cause properly lies in Johnson County, and thereby reverse and render the trial court’s order.

Subdivision 9 of Article 1995 in its pertinent parts reads as follows:

“Crime or Trespass. — A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed by the defendant, or by his agent or representative, or in the county where the defendant has his domicile.”

It is well settled that a conversion of personal property is a trespass within the meaning of Section 9 of Article 1995. Industrial Supply Co. v. Stockton Oil Co. (Ft. Worth Tex.Civ.App.1966) 408 S.W.2d 251, writ dismissed; Sanderlin v. Dransfield (Ft. Worth Tex.Civ.App.1975) 523 S.W.2d 794, no writ.

In relying upon Section 9, Plaintiff had the burden of proving (a) a trespass had been committed; (b) it was committed in the county of suit; and (c) the defendant asserting the privilege committed the acts or they were committed by another under circumstances which make the defendant legally responsible. Langford v. Kraft (Beaumont Tex.Civ.App.1973) 498 S.W.2d 42, 50, NRE; Sanderlin v. Dransfield, cited supra; Vol. 1, McDonald, Texas Civil Practice, (1965), “Venue”, Section 4.17.1, p. 473.

In the case at bar, Plaintiff proved the elements of a cause of action for conversion on the part of the two Defendants in Johnson County. Plaintiff was in lawful possession of the trailer holding a bill of sale to same from Parker at the time Parker entered upon Plaintiff’s premises and took the trailer without Plaintiff’s knowledge or consent. By Defendants’ own testimony, Parker physically took the trailer from Plaintiff under the instructions of and acting as agent for Sheriff Cain.

However, Defendants claim that they took the trailer from Plaintiff lawfully under the provision of Article 18.16, Code of Criminal Procedure, which provides:

“All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay.”

Also see Clark v. State (1949) 153 Tex.Cr.R. 544, 221 S.W.2d 602.

However, the question as to. whether Defendants had the right to take the trailer away from the Plaintiff under Article 18.16 is a defensive matter which has no part in a venue hearing. As this Court held in Dealers National Insurance Co. v. Rose (Waco Tex.Civ.App.1965) 396 S.W.2d 535, no writ:

“The sole issue in the plea of privilege hearing is that of venue; not liability or the merits of the case. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1304; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675. The defense is not available on the hearing to defeat venue in the county of suit. Negativing the prima facie cause of action established by plaintiff does not negative the ‘venue fact.’ It simply does not affect venue.” (Citations)

In the case at bar, we believe Plaintiff Peters proved by undisputed evidence that the Defendants, Parker as agent and Sheriff Cain as principal, committed a trespass in Johnson County within the meaning of Section 9, Article 1995, and therefore venue of this cause properly lies in Johnson County. Defensive matters asserted by Defendants which may justify their taking of the trailer do not affect venue, but must await trial on the merits.

We therefore reverse and render the trial court’s judgment.

REVERSED AND RENDERED.


author: McCLOUD, Chief Justice.

text:
    TEXAS EMPLOYMENT COMMISSION, Appellant, v. SCHEPPS DAIRY, INC., Appellee.
    No. 5370.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 29, 1979.
    Rehearing Denied Dec. 20, 1979.
    Bill Kimbrough, Asst. Atty. Gen., Austin, for appellant.
    Aaron Kaufman, Oster & Kaufman, Dallas, for appellee.
   McCLOUD, Chief Justice.

Schepps Dairy, Inc. filed suit against the Texas Employment Commission and Gerald Kissentaner, former employee of Schepps, seeking judicial review of a decision of the Commission awarding unemployment benefits to Kissentaner. Following a pretrial hearing, the court ordered that the review be by trial de novo. After a nonjury trial, which included the testimony of three witnesses, the court rendered judgment in favor of Schepps setting aside the administrative decision of the Commission. The Commission appeals. We reverse and remand.

The Commission first argues that the court erred in ordering that the review of the Commission’s decision be by trial de novo. We agree.

Schepps contends that at the time the instant case was tried, January 24,1979, the administrative decisions of the Texas Employment Commission were subject to judicial review pursuant to Tex.Rev.Civ.Stat. Ann. art. 6252-13a (Administrative Procedure and Texas Register Act — héreafter referred to as APA). We agree. Moore v. Texas Employment Commission, 565 S.W.2d 246 (Tex.Civ.App.—Houston (14th Dist.) 1977, no writ). Schepps further argues that the APA required the review be by “pure trial de novo” and not the substantial evidence rule. We disagree.

The statute which specifically authorizes judicial review of Commission decisions, Tex.Rev.Civ.Stat.Ann. art. 5221b — 4, states in paragraph (i) that such trial “shall be de novo.” It further provides, however, that a petition for judicial review shall not act as a supersedeas. See Southern Canal Co. v. State Board of Water Eng., 159 Tex. 227, 318 S.W.2d 619, 622 (1958). It was well established before the enactment of the APA that the validity of a decision of the Texas Employment Commission was to be tested under the substantial evidence rule. Texas Employment Commission v. Holberg, 440 S.W.2d 38 (Tex.1969). Our Supreme Court in Southwestern Bell Telephone Co. v. Public Utility Commission, 571 S.W.2d 503 (Tex.1978) pointed out that Section 19 of the APA provides that in contested cases there are now only two types of review— “pure trial de novo or review confined to the agency record.”

Section 19 of the APA provides in part:

(3) the filing of. the petition vacates an agency decision for which trial de novo is the manner of review authorized by law, but does not affect the enforcement of an agency decision for which another manner of review is authorized.
(c) If the manner of review authorized by law for the decision complained of is by trial de novo, the reviewing court shall try all issues of fact and law in the manner applicable to other civil suits in this state but may not admit in evidence the fact of prior agency action or the nature of that action (except to the limited extent necessary to show compliance with statutory provisions which vest jurisdiction in the court). Any party to a trial de novo review may have, on demand, a jury determination of all issues of fact on which such a determination could be had in other civil suits in this state.
(d) If the manner of review authorized by law for the decision complained of is other than by trial de novo:
* * * * • * *
(3) the review is conducted by the court sitting without a jury and is confined to the record, except that the court may receive evidence of procedural irregularities alleged to have occurred before the agency but .which are not reflected in the record.
(e) The scope of judicial review of agency decisions is as provided by the law under which review is sought. Where the law authorizes appeal by trial de novo, the courts shall try the case in the manner applicable to other civil suits in this state and as though there had been no intervening agency action or decision. Where the law authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review, the court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the statutory authority of the agency;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Before the APA was adopted, the decisions of the Texas Employment Commission were reviewed by the substantial evidence rule. The manner of review authorized by law was “other than by trial de novo.” Section 19(d)(3) of the APA clearly required, at the time of the instant trial, that the review be confined to the agency record. The court, therefore, erred in ordering that the review be by trial de novo. See Kilgore v. Texas Real Estate Commission, 565 S.W.2d 114 (Tex.Civ.App.—Fort Worth 1978, no writ).

The record made before the administrative agency is not a part of our record in this case. We are unable to determine if the Commission’s findings are reasonably supportéd by substantial evidence.

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

      . Effective August 27, 1979, Section 21, of Article 6252~13a was amended in paragraph (f) to provide that Sections 12 through 20 of the APA do not apply to hearings by the Texas Employment Commission to determine whether or not a claimant is entitled to unemployment compensation. 1979 Tex.Gen.Laws, ch. 521, § 1, at 1105.


text:
    Efrain CERVANTES, Appellant, v. Maria G. CERVANTES, Appellee.
    No. 1490.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 29, 1979.
    Rehearing Denied Dec. 28, 1979.

      J. R. Davidson, Brownsville, for appellant.
    Eduardo R. Rodriguez, Hardy, Rodriguez & Colvin, Joe Walsh & Associates, Brownsville, for appellee.
   OPINION

BISSETT, Justice.

This case involves an appeal from a decree of divorce and division of property incident to the divorce. Maria Cervantes, the wife-appellee, brought suit against Efrain Cervantes, the husband-appellant, for divorce, conservatorship of the children born to the marriage and division of the property of the parties. The case was tried before a judge on October 11, 1978. Following the trial, the court, on November 6, 1978, rendered a decree which divorced the parties, awarded managing conservatorship of the children to the wife, and divided the property accumulated by the parties during the marriage.

On appeal, the husband-appellant challenges the granting of divorce and the division of the property. The petitioner-appel-lee will henceforth be referred to as “the wife.” The respondent-appellant will hereafter be called “the husband.”

In her petition for divorce, the wife alleged that the marriage had become “insupportable because of discord or conflict of personalities between petitioner and respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” This allegation was made pursuant to Tex. Fam.Code Ann. § 3.01 (1973), which provides:

“On the petition of either party to a marriage, a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”

In a divorce case, the sufficiency and weight of the evidence necessary to meet the requirements of insupportability must be left to the sound discretion of the court trying the case, and on appeal from a judgment granting a divorce every presumption must be indulged in favor of the judgment. Elrod v. Elrod, 517 S.W.2d 669 (Tex.Civ.App.—Corpus Christi 1974, no writ);. Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ. App.—Corpus Christi 1973, writ dism’d.).

In his first point of error, the husband contends the evidence was insufficient to establish the marriage had become insupportable because the greater weight of the evidence showed that the parties had lived together since the wife filed her petition for divorce. At the trial the wife testified to discord and a conflict of personalities which rendered the marriage impossible and insupportable. She further testified that, in her opinion, there was no hope that she and her husband could live together as husband and wife. In a divorce case, the petitioner’s opinion that continuing the marriage relationship would not be feasible satisfies the. requirement of the Texas Family Code to make out a prima facie case of divorce. Baxla v. Baxla, 522 S.W.2d 736 (Tox-Civ. App.—Dallas 1975, no writ). Furthermore, although the husband brought forward some evidence that the parties were living together, the wife unequivocally testified that any such relationship did not involve marital interaction. She further testified that there had been many arguments between them and that she had suffered physical abuse as well as public embarrassment because of her husband’s acts in the past.

The cumulative effect of all the evidence presented by the record is sufficient to support a finding of insupportability within the purview of section 3.01 of the Family Code. The husband’s first point of error is overruled.

In its divorce decree the trial court divided the property of the parties as set out in the accompanying footnote.

Wide latitude is granted to trial courts in exercising discretion in determining a division of the property between the parties to a divorce. Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959); Hayes v. Hayes, 378 S.W.2d 375 (Tex.Civ.App.—Corpus Christi 1964, writ dism’d), Baxla v. Baxla, supra; Hensley v. Hensley, 496 S.W.2d 929 (Tex.Civ.App.—El Paso 1973, no writ). There is a presumption in favor of the trial court’s exercise of its discretion regarding division of the property. Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Verbal v. Verbal, 567 S.W.2d 898 (Tex.Civ.App.—San Antonio 1978, no writ); Grost v. Grost, 561 S.W.2d 223 (Tex.Civ.App.—Tyler 1978, no writ); Hopkins v. Hopkins, 540 S.W.2d 783 (Tex.Civ.App.—Corpus Christi 1976, no writ).

There are no findings of fact or conclusions of law. Therefore, we must pre-' sume that the trial court considered all of the circumstances of the parties in connection with the division of their property. Musslewhite v. Musslewhite, 555 S.W.2d 894 (Tex.Civ.App.—Tyler 1977, writ dism’d); Whittenburg v. Whittenburg, 523 S.W.2d 797 (Tex.Civ.App.—Austin 1975, no writ); Morin v. Morin, 561 S.W.2d 263 (Tex.Civ.App.—Corpus Christi 1978, no writ).

By his second point of error, the husband contends that the divesting of all his right, title and interest in the homestead of the parties was against the greater weight and preponderance of the evidence. In support of this point, he directs attention to his wife’s testimony that a fair division of the property would be approximately fifty-fifty. He further contends that the trial court failed to consider the following:

(1) the fault of the wife in breaking up the marriage;
(2) the contribution by the community estate to the wife’s education as a teacher; and,
(3) the comparative future earning powers of the parties.

The wife is a school teacher. She makes approximately $640.00 per month. The husband is a postal worker who makes approximately $900.00 a month. The wife was awarded managing conservatorship of four children. There was no conclusive assignment of blame to either of the parties insofar as the insupportability of the marriage was concerned. Although the wife testified that a 50% division of all the property would be satisfactory to her, there was no unequivocal indication on her part that divestiture of the husband’s interest in their homestead would be unacceptable. A trial court may award the community homestead to the wife if, among other considerations, it is of the opinion that she needs it to maintain a stable home for her children. Cunningham v. Cunningham, 515 S.W.2d 345 (Tex.Civ.App.—Corpus Christi 1974, no writ). Reviewing all the evidence in the case, we simply cannot say that the trial court abused its discretion in this regard. The second point of error is overruled.

In his last three points of error the husband contends there was no basis for the trial court’s entry of a judgment that 1) the wife receive one-half of all retirement benefits accumulated by him in connection with his employment as a postal worker; 2) the parties divide equally any federal income tax refund for the year 1978; and 3) the parties divide their four children as exemptions for income tax purposes. The points have no merit.

It has been held that the court may divide retirement benefits between the spouses. Gaulding v. Gaulding, 503 S.W.2d 617 (Tex.Civ.App.—Eastland 1973, no writ). Furthermore, the husband has completely failed to come forward with any reason as to why the decree with respect to the provision for the division of a possible income tax refund and the provisions for dividing the children for income tax exemptions should be reversed. The third, fourth and fifth points of error are overruled.

The judgment of the trial court is AFFIRMED.

      . “Petitioner is awarded the following as Petitioner’s sole and separate property, and Respondent is hereby divested of all right, title, and interest in and to such property:
      (1) Lot Four (4), Block Thirteen (13), EBONY HEIGHTS SUBDIVISION, an Addition to the City of Brownsville, Cameron County, Texas, as shown by the map or plat of said Subdivision, of record in Volume 15, page 20, Map Records of Cameron County, Texas, SAVE AND EXCEPT, however, all oil, gas, and minerals heretofore reserved to.
      Los Ebanos Estates, Inc., and Thomas H. Sweeney in Deed dated March 1, 1950, of record in Volume 484, page 128, Deed Records, Cameron County, Texas.
      (2) Any and all sums of cash in the possession of or subject to the control of Petitioner, including money on account in banks, savings institutions, or other financial institutions, which accounts stand in Petitioner’s name or from which Petitioner has the right to withdraw funds or which are subject to Petitioner’s control.
      (3) One-half (½) of all retirement benefits or funds accumulated by Respondent from September 6, 1964 to October 11, 1978, including but not limited to contributions made by Respondent during said period in connection with his employment at the United States Post Office.
      (4) The 1977 Volkswagen Rabbit automobile now in her possession.
      (5) All household furniture and furnishings.
      (6) All personal property in Petitioner’s possession or subject to Petitioner’s control.
      All property awarded to Petitioner shall be subject to any indebtedness charged against it. Respondent is awarded the following as Respondent’s sole and separate property, and Petitioner is hereby divested of all right, title, and interest in and to such property:
      (1) The following real property:
      Lot Number Twenty-Eight (28), Block Number One (1), LAKE VILLAGE SUBDIVISION in the City of Brownsville, Cameron County, Texas, according to Map of said Subdivision recorded in Volume 21, Page 48 of the Map Records of Cameron County, Texas.
      (2) The 1975 Chevrolet Caprice automobile now in his possession.
      (3) All personal property in Respondent’s possession or subject to Respondent’s control.
      All property awarded to Respondent shall be subject to any indebtedness charged against it.
      IT IS DECREED that each party shall bear his or her own liability for taxes on income earned after the date of entry of this decree.
      IT IS DECREED that, should the parties’ federal income tax return for 1978 or for any prior years result in a refund of taxes, Petitioner and Respondent shall divide such refund equally.
      IT IS DECREED that Petitioner shall have the right to claim the income tax exemptions for the two younger children of this marriage, being HUGO A. CERVANTES and MONICA L. CERVANTES, for the purpose of federal income taxes for 1978 and all subsequent years.
      IT IS DECREED that Respondent shall have the right to claim the income tax exemptions for the two oldest children of this marriage, being LISA M. CERVANTES and EFRAIN CERVANTES, JR., for the purpose of federal income taxes for 1978 and all subsequent years, so long as all child support herein ordered to be paid by claimant is timely paid.”