author: CADENA, Justice.

text:
    Lester ADLER, Appellant, v. Victor MORAN, Jr., et al., Appellees.
    No. 15660.
    Court of Civil Appeals of Texas, San Antonio.
    March 30, 1977.
    Rehearings Denied April 27, 1977.

      Hall & Zaffirini, Laredo, for appellant.
    Goodman & Cronfel, Laredo, for appel-lees.
   CADENA, Justice.

This case involves the application of the doctrine of equitable adoption or, as it is sometimes called, adoption by estoppel. Lester Adler, defendant below, appeals from a judgment, based on jury findings, awarding plaintiffs, Victor Moran, Jr., Xó-chitl Moran Hernandez, Rene Moran, and Yolanda Moran Couler, an undivided one-half interest in certain land located in Laredo, Webb County, Texas. The judgment is based on the theory that, under the doctrine of equitable adoption, plaintiffs inherited the interest of their stepmother, Ramona Guevara Moran, who died intestate in 1959.

Defendant claims as purchaser of the land in question at a foreclosure sale held in accordance with the provisions of a deed of trust executed by plaintiffs’ father, Victor Moran, Sr., as security for a debt incurred by him, after the death of his second wife, Ramona Guevara Moran.

Plaintiffs’ natural mother, the first wife of their father, died prior to 1930. In 1930 plaintiffs’ father married Ramona Guevara and lived with her until her death in 1959. It is agreed that the land in question was a part of the community estate of plaintiffs’ father and Ramona.

In answer to the first six special issues submitted, the jury found: (1) Prior to her marriage to plaintiffs’ father in 1930, Ramona agreed to adopt plaintiffs. (2) As a result of such promise, plaintiffs’ father married Ramona. (3) Plaintiffs rendered to Ramona “the same affection, services and duties of natural children” until her death in 1959. (4) Prior to the marriage, Ramona “agreed to assume the duties and burdens of parenthood in relation to” plaintiffs. (5) Ramona raised and cared for plaintiffs from the date of the marriage until her death “as if they had been her own natural children.” (6) Plaintiffs lived with Ramona, from the time of her marriage to plaintiffs’ father in 1930 until her death in 1959, “in the relationship of sons and daughters” to Ramona, conferring upon her “the benefits of parenthood.”

By applying the doctrine of equitable estoppel, the majority of American courts have permitted a person to inherit, under the laws of descent and distribution, as a child of a deceased intestate even though the person claiming the right of inheritance is not the natural child of the deceased and has not been adopted by the deceased in compliance with the requirements of the statutes governing adoption. However, the courts applying the doctrine have experienced some difficulty in explaining the result on the basis of existing legal concepts.

Perhaps a majority of the courts granting relief on the basis of the doctrine of equitable adoption speak in terms of specific performance of a contract to adopt. Annot., 171 A.L.R. 1315, 1316 (1947). Other courts explain the result as an application of the doctrine of equitable estoppel. Annot., 27 A.L.R. 1365 (1923). A few courts repudiate the doctrine of equitable adoption altogether, saying that the adoption statutes furnish the sole means by which a “nonbiological” relationship of parent and child can be created. Clarkson v. Bliley, 185 Va. 82, 38 S.E.2d 22 (1946).

There is at least dictum by the Texas Supreme Court to the effect that the remedy of specific performance of a contract to adopt is available in Texas. But this observation is followed immediately by a statement that the “real classification of the remedy is that of estoppel.” Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72, 83 (1934).

In Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951), the Supreme Court said that a person claiming the protection of the doctrine of equitable adoption must allege and prove either an unsuccessful attempt by the “adoptive parent” to comply with the requirements of the adoption statute or an agreement by the adoptive parent with the child, or with the child’s parents or with some other person in loco parentis that he would adopt the child.

In Cubley, the Supreme Court, using traditional estoppel language, spoke in terms of precluding “adoptive parents and their privies from asserting the invalidity of adoption proceedings, or, at least, the status of the adopted child, when, by performance upon the part of the child, the adoptive parents have received all the benefits and privileges accruing from such performance, and they by their representations induced such performance under the belief of the existence of the status of adopted child.” 73 S.W.2d at 79, 80. The Cubley opinion speaks in terms of “representation” rather than “contract,” but at least since the Cava-naugh decision the Texas courts have consistently required an agreement to adopt. Grant v. Marshall, 154 Tex. 531, 280 S.W.2d 559 (1955); In re Estate of Wood, 543 S.W.2d 701, 703 (Tex.Civ.App.—Beaumont 1976, no writ).

Insofar as the case before us is concerned, combining the “estoppel” language found in Cubley with the requirement of a contract to adopt embodied in Cavanaugh, it was incumbent on plaintiffs, in order to find shelter in the doctrine of equitable adoption, to prove (1) an agreement by Ramona, made with plaintiffs, or with their father, or with someone standing in loco parentis to plaintiffs to adopt plaintiffs; (2) reliance by plaintiffs upon the existence of the adoptive status; and (3) performance by plaintiffs.

Defendant does not challenge the sufficiency of the evidence to support the findings made by the jury in answer to the first six special issues. Instead, defendant urges that the verdict will not support the judgment because it contains no findings of factual elements essential to the conclusion that plaintiffs were equitably adopted by Ramona, and that the missing findings cannot be supplied under the doctrine of implied findings by the court because the evidence is legally and factually insufficient to support the required findings of fact. Specifically, defendant argues that, although the jury found that Ramona had agreed to adopt plaintiffs, there is no finding that such agreement was made with plaintiffs, or with their father, or with someone in loco parentis, and that absent a finding that plaintiffs knew of the agreement, there can be no basis for concluding that plaintiffs relied on the existence of the agreement to adopt.

We consider first defendant’s contention, embodied in its first two points, that there is no evidence or, in the alternative, insufficient evidence, to support an implied finding that the agreement to adopt was made by Ramona with plaintiffs or with plaintiffs’ father, or with someone standing in loco parentis to plaintiffs.

The only evidence relating to the agreement by Ramona to adopt plaintiffs came from her brother, Elias Guevara. The record indicates that plaintiffs’ father was incapable of testifying because of poor health.

In keeping with custom in Laredo, in 1930 plaintiffs’ father called upon Elias Guevara, Ramona’s oldest living male relative, to ask for Ramona’s hand in marriage. Ramona was present at this meeting, and it is clear that there was some discussion concerning plaintiffs. Elias testified through an interpreter and some difficulty in construing his testimony is created by the fact that frequently the questions and answers were separated by objections by counsel and remarks by the trial judge.

On direct examination, the brother was asked whether there was any discussion concerning the minor children. The answer, as it appears in the statement of facts, was, “No sir. Because — ” At this point defendant’s attorney objected on the ground that the answer was not responsive. After the court overruled the objection, the witness answered, “Yes, sir.” When the witness was asked to explain, defense counsel interjected, “I think that was an answer. Go ahead and just start over.” The court then said that the answer was, “No, because my sister agreed to adopt them.” Counsel for defendant then stated that he thought the answer had been, No, because “My sister had agreed to adopt them from the beginning.”

The witness was then asked whether there had been any “discussion or agreement” concerning the children. Defendant’s counsel again objected, protesting that the question called for an answer “that has no reference to time or parties involved.” After the court commented that the answer was “not yet in the record,” defendant objected to the “form” of the question “because it doesn’t limit the witness to any particular time or any particular conversation.” In response to the court’s suggestion that the question be rephrased, plaintiffs’ attorney then asked if there had been any discussion concerning the children prior to the marriage. The witness replied, “The same question that you just asked me shouldn’t be asked two times.” At this point the court pointed out that the word “discussion” means one thing in English while, if literally translated into Spanish, “it means a slightly different thing.” He suggested counsel should “try to get something that would be equal both in English and in Spanish.” The question was then repeated, with the word “conversation” substituted for “discussion.” After an objection by defendant’s attorney was overruled, a question was asked inquiring whether there had been any conversation prior to the marriage between Ramona and plaintiffs’ father. Before the question could be answered, counsel for defendant pointed out, “Your Honor, there obviously was some conversation before their marriage.” The court replied that the witness should be allowed to state whether there had been any conversation. Defendant’s attorney then objected that the question was “leading.” After this objection was overruled, defendant’s attorney requested that the court instruct the witness to answer the question. The statement of facts shows the following:

THE COURT: Mr. Interpreter, will you ask the witness if he can answer that yes or no?
A Which?
THE COURT: If there was any conversation or agreement.
A On what?
THE COURT: Now, finish the question. Q With reference to the status of the children and their future.
[DEFENSE COUNSEL]: Your Honor, I will object to that as being leading. If there was any kind of agreement—
THE COURT: I will overrule the objection. Go ahead.
[COUNSEL FOR DEFENDANT]: Can the witness be instructed to answer the question yes or no, please?
THE COURT: All right. Mr. Interpreter—
THE INTERPRETER: Yes.
THE COURT: Tell him to answer the question yes or no. We cannot accept any explanation at this time. If there is any explanation required, the attorney will ask for them. So listen to the question and answer it, if you can, yes or no. All right.
A Yes, sir. There was an agreement. Q What kind of an agreement? Would you explain to us, please?
A My sister said that she was willing to adopt the children and that she would be responsible for all of them and everything.

We cannot say, as a matter of law, that the trial judge could not reasonably conclude that the answer of the witness, when he was finally allowed to give it, was a statement to the effect that the agreement was between Ramona and plaintiffs’ father. The judge took an active part in this portion of the proceedings and clearly was in a position to evaluate the answer in what courts like to call “the totality of the circumstances.” Plaintiffs’ father was present during the conversation, and the conclusion that he was a party to the agreement finds support in the jury finding, unchallenged by defendant, that he married Ramona “as a result of” her promise to adopt his children.

Defendant’s “no evidence” point is overruled.

However, we cannot say that the evidence is sufficient to support the finding that the agreement was made with plaintiffs’ father. It is settled that a person claiming the protection of the equitable adoption doctrine must establish the facts giving rise to the estoppel by evidence which is “clear, unequivocal and convincing.” Cavanaugh v. Davis, supra, 235 S.W.2d at 973. In determining whether the evidence in this case satisfied that requirement, we must note the following series of questions and answers during cross-examination of Ramona’s brother:

Q And before you would let your sister marry Mr. Moran, you wanted to make sure that your sister understood the obligations that she was getting herself into?
A Of course so. Yes.
Q And the conversation that you had with your sister was to assure you that she understood those obligations?
A That’s the way it is.
Q And her agreements were made with you so that you would allow her to get married to Mr. Moran?
A As long as she would adopt his children.
Q And those were the conditions that you placed on the marriage?
A Those were the conditions. Yes, sir.

While the answer of the witness to the question concerning the identity of the person with whom the agreement was made is, at least to some extent, unresponsive, and subject, in any event, to interpretation, this portion of the testimony can be construed as a statement to the effect that Ramona made the agreement with her brother. Under the “preponderance of the evidence” standard for evaluating the quantum of evidence, conflicting answers by a witness raise an issue of fact to be resolved by the trier of fact. Without pretending to define the meaning of the term “clear, unequivocal and convincing,” it can be safely said that a requirement of such proof contemplates something more than proof by mere preponderance of the evidence. It must be concluded that the evidence of Ramona’s brother is not “unequivocal” and that it is insufficient to support the finding that the agreement to adopt was made with a person who is within the category of those with whom such an agreement must be shown.

Defendant’s third and fourth points assert that there is no jury finding to the effect that plaintiffs relied on the agreement to adopt, and that the evidence is legally and factually insufficient to support an implied finding of such reliance. This asserted error was not embodied in defendant’s motion for new trial. The error, if any, has been waived. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960).

In answer to issues 7, 8, and 9 the jury found that the Laredo National Bank, at the time it acquired its lien, had knowledge of the fact that plaintiffs claimed an interest in the land and had knowledge of facts sufficient to put a prudent mortgagee on inquiry which, if diligently pursued, would have led to the discovery of plaintiffs’ claim. In his fifth and sixth points defendant urges that there is no evidence to support these findings and, in the alternative, that the evidence is insufficient to support such findings.

Defendant’s contention is that since the bank paid value for the legal interest, which it acquired under the deed of trust, it was entitled to protection against the equitable interest of plaintiffs unless the evidence establishes that, at the time it acquired its lien, it had actual or constructive notice of plaintiffs’ claim. Defendant relies on Fleming v. Ashcroft, 142 Tex. 41, 175 S.W.2d 401 (1943). Plaintiffs rely on the rule applied in such cases as McDougall v. McDougall, 316 S.W.2d 295 (Tex.Civ.App.—Eastland 1958, writ ref’d n. r. e.), to the effect that one who purchases from an heir must ascertain the identity of all persons who are entitled to take by inheritance property belonging to the estate of an intestate deceased.

In Fleming, the Supreme Court said (175 S.W.2d at 407):

The following excerpt from the opinion of the Court of Civil Appeals in the present case * * * sufficiently discloses the grounds of its holding . ‘Paraphrasing the conclusions as stated in Marshburn v. Stewart, supra, and Mayor v. Breeding, supra, both applicable to this record, we conclude that the law having invested [the surviving spouse of the adoptive parent], as survivor of the community, with the apparent legal title in fee simple to this land, and such apparent title having passed to appellants for a valuable consideration, that before [those claiming under the equitably adopted child] can defeat the same, [they] must show that at the time appellants purchased their respective interests they had notice of the equitable rights of [the adopted child], or had notice of facts sufficient to put appellants upon inquiry, and that such inquiry, pursued with reasonable diligence, would have necessarily discovered the real facts upon which [the adopted child’s] claim to an interest in the land involved in this suit is predicated.
We approve the foregoing holding of the Court of Civil Appeals and the grounds and reasoning upon which it was based.

It is clear that the Supreme Court considered that the interest inherited by a person who successfully invokes the doctrine of equitable adoption is an equitable interest. The opinion expressly distinguishes between a claim based on a statutory adoption and a claim based on an agreement to adopt. 175 S.W.2d at 407. It appears that this distinction can be validly made only if it be assumed that the estoppel does not operate against a purchaser from an heir of the adoptive parent, since it allows such person to show that, for the purposes of inheritance, the child has not been legally adopted.

Basic to the Fleming holding is the assumption that on the death of the adoptive parent intestate the legal title to his estate does not vest in the person claiming the protection of the doctrine of equitable adoption. This conclusion finds support in some of the language found in Cubley v. Barbee, supra, where the Supreme Court, after pointing out that the doctrine of equitable adoption was merely an application of the doctrine of estoppel rather than a remedy decreeing specific performance of the contract to adopt, said, “Of course, there is a specific performance in the sense that the naked legal title to property may have been taken by the apparently legal heirs, which the court may divest out of them and vest in the adopted heir.” 73 S.W.2d at 83.

It may be assumed that at the time of the decisions in Cubley (1934) and Fleming (1943) it could be persuasively argued that upon the intestate death of the adoptive parent the legal title to his estate descended only to his “apparent” legal heirs. However, under present statutes relating to inheritance and adoption there is no basis for holding that on the intestate death of the adoptive parent the title to his estate is, by some unexplained process, divided into “legal” and “equitable” title, with only the “apparent legal heirs” succeeding to the “legal” title.

In 1955 the Legislature adopted the present Probate Code which provides that upon the death of a person intestate all of his estate vests “immediately in his heirs at law.” Tex.Prob.Code Ann. § 37. Under the provisions of § 38 of the Code, upon the death of Ramona intestate in 1959, her interest in the community estate vested in her “child or children.” According to § 3(b), the word “child” includes “an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel.” Thus, the statute makes a child adopted “by acts of estoppel” one of the “heirs at law” in whom Ramona’s estate vested immediately.

Prior to 1955, then, there was no statutory provision recognizing a child adopted by acts of estoppel as an heir at law. Since 1955, however, such a child stands, by legislative mandate, on the same footing, insofar as his rights of inheritance are concerned, as a natural child of the intestate or a child adopted by compliance with the statutory provisions relating to adoption. Since our present statutes make no distinction between a natural child, a child adopted by compliance with statutory requirements, and a child adopted by acts of estoppel, there is no basis for distinguishing among the three types of children. It cannot be seriously argued, without ignoring the statutes, that upon the death of a person intestate the interests which “vest immediately” in the children are somehow different. If natural children and children adopted in compliance with the adoption statute receive the legal title from the intestate parent, then, necessarily, the child adopted by acts of estoppel receives the same quality of title.

Since 1955 there is no basis for the distinction made in Fleming between a claim based on “adoption” and one based on “an agreement to adopt.” At the time Fleming was decided, it could, with some reason, be said that on the death intestate of one of the adoptive parents, ‘the law . . .invested [the surviving spouse] with the apparent legal title in fee simple to’ the estate of the intestate. 175 S.W.2d at 407. This argument could be advanced because, at that time, no statute existed making children adopted by acts of estoppel the legal heirs of the adoptive parent. In 1959, when Ramona died, the situation had been changed by the Legislature.

The holding by the Supreme Court in Heien v. Crabtree, 369 S.W.2d 28 (1963), does not support the view that a child adopted by acts of estoppel receives only an equitable interest in the estate of the intestate adoptive parent. The actual holding in that case was merely that an equitable adoption did not create the legal status of parent and child for the purpose of allowing the adoptive parent to inherit from the child. This holding is undoubtedly correct, since the doctrine of estoppel in pais has never been applied in order to protect the adoptive parents. After pointing out that the adoptive parents “Through neglect or design . . . breached their agreement to adopt,” the Court pointed out that there would be “no basis in promises, acts or conduct on the part of [the child] upon which to erect an estoppel,” since he breached no duty to the adoptive parents or “in any way misled them to their detriment.” 369 S.W.2d at 30. The simple holding in Heien, then, is that the term “adopted child,” as used in the provision in § 40 of the Probate Code, allowing parents by adoption to inherit from an “adopted child,” did not include a child adopted by acts of estoppel. That is, there is no statute making the adoptive parent an heir of an equitably adopted child.

It is true that in Heien the Supreme Court said that the language of the Probate Code § 3(b), which is a legislative recognition of the doctrine of equitable adoption, indicates a mistaken “legislative assumption that our courts had held that a child may be adopted by acts of estoppel, and thus that a legal status of parent and child is created by acts of estoppel.” 369 S.W.2d at 30. Although it is possible to find fault, as did the dissenters in Heien, with the notion that the Legislature, in promulgating rules regulating intestate succession, is in some way bound by, and powerless to change, prior judicial holdings, such criticism would serve no useful purpose here. In adopting the rule that a child adopted by acts of estoppel becomes the heir of the adoptive parent, the Legislature correctly analyzed the effect of judicial holdings in cases applying the doctrine of equitable adoption. There is no way out of the Probate Code, even by charging the Legislature with ignorance of judge-made law, the unambiguous declaration of intent that a child adopted by acts of estoppel is the legal heir of the adoptive parent.

Since the statutes place natural children, legally adopted children, and children adopted by acts of estoppel on the same footing, it must be concluded that the interest which plaintiffs acquired in the land in question on the death of Ramona intestate was the complete title, both legal and equitable, rather than a vulnerable equitable interest with the legal title somehow vesting in a person who, under the clear language of the statute, is entitled to inherit nothing. The doctrine of bona fide purchaser is, therefore, inapplicable.

Defendant’s fifth and sixth points are without merit.

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

BARROW, C. J., concurs in the result.

      . The term “adoptive parent” is used to designate the person from whom one claiming under the doctrine of equitable adoption claims to have inherited under the statutes of descent and distribution.

      . No Texas case has attempted to justify the requirement of a contract to adopt. Traditionally, an estoppel results from the detrimental reliance by one person on the representations of another. The representations need not rise to the dignity of a contract. Undeviating adherence to the requirement of a contract to adopt would seem to preclude the finding of an equitable adoption where the adoptive parent has merely represented to the child that a valid adoption in compliance with the statutory requirements has been accomplished in the past. In order to protect the child who has relied on such representation, a court would be required, somehow, to transform the misrepresentation as to the existence of an antecedent fact into a promise to adopt in the future. Denial of relief would also follow where the representation was to the effect that the child is the natural child of the adoptive parent. It has been suggested that the contract to adopt is essential because it reflects an intention to adopt which, once established, justifies the inference that the intention was in some way communicated to the child, thus permitting the finding of the subsequent reliance said to be essential to an equitable adoption. Bailey, Adoption by Estop-pel, 36 Tex.L.Rev. 30, 41, 42 (1937). The reason for permitting reliance only on an intention expressed in a contract is not quite clear.

      . Phrases such as “performance by the child” seem to be no more than a shorthand rendition of the requirement that the child confer love, affection, and other benefits upon the adoptive parent. Our attention has been called to no case in which an attempt was made to define “performance by the child.”

      . The judgment of the Texarkana Court of Civil Appeals, which was affirmed by the Supreme Court in Fleming, was supported by an opinion interpreting Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906 (1940), as holding that the rights acquired by the child were equitable in nature and that the word “privies” as used in the Jones opinion included only the devisees of the deceased adoptive parent. Ashcroft v. Fleming, Tex.Civ.App., 164 S.W.2d 304, 308 (1942). The conclusion that the word “privies” includes only “devisees” is completely indefensible. The defendants in Jones were, indeed, the devisees or legatees of the surviving spouse of the deceased adoptive parent, but the case concerned only succession to the estate of the adoptive parent who had died intestate. It is well settled that the doctrine of equitable adoption cannot be successfully invoked against the devisees of the adoptive parent. The Jones opinion makes this abundantly clear. “[T]he effect of sustaining an estoppel in pais to preclude the adoptive parents and their privies from asserting the invalidity of adoption proceedings ⅜ ⅜ * is not enforcing a parol contract for the sale of real estate. This is true for the obvious reason that an adopted child does not inherit property in virtue of the status of an adopted child alone but depends upon the intestacy of the adoptive parent, together with the statutes of descent and distribution. Moreover, the status of an adopted child with respect to the property of the adoptive parents is the same as that of the parent’s own children. . [The adoptive parent] had the right to dispose of his property by will.” 143 S.W.2d at 910. In Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex.1963), Chief Justice Calvert said that as a result of the doctrine of equitable adoption, “those claiming under and through [the adoptive parent who died intestate] are estopped to assert that a child was not legally adopted . . . This statement, since it presupposes the intestate death of the adoptive parent, exposes the error of the Court of Civil Appeal’s statement in Fleming to the effect that the estoppel can be invoked only against the devisees of the deceased adoptive parent. The correct rule is exactly the opposite of the rule set forth by the Court of Civil Appeal’s opinion in Fleming.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    JOY MANUFACTURING COMPANY, Appellant, v. BRIGGS WEAVER, INC., Appellee.
    No. 4992.
    Court of Civil Appeals of Texas, Eastland.
    March 31, 1977.
    Rehearing Denied April 28, 1977.
    Chilton Bryan, Law Offices of Chilton Bryan, Houston, for appellant.

      David Kitner, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   McCLOUD, Chief Justice.

This is a venue case. Plaintiff, Briggs Weaver, Inc., sued in Dallas County, the defendant, Joy Manufacturing Company, a foreign corporation authorized to transact business in Texas, for certain goods, merchandise, labor and material furnished defendant. Joy Manufacturing Company filed a plea of privilege stating it was a resident of Harris County. Defendant’s plea of privilege was overruled and it has appealed. We affirm.

Plaintiff contends venue is proper in Dallas County because defendant’s registered agent is located in Dallas County. We agree. Plaintiff pleaded and the record established that C. T. Corporation, Republic National Bank Building, Dallas, Texas, is defendant’s registered agent for service.

The court in Sheldon Petroleum Company et al. v. Peirce, 546 S.W.2d 954 (Tex.Civ.App.—Dallas, 1977), recently held that a foreign corporation is a resident, for venue purposes, of the county in which its registered agent is located. Similar statements were made by the courts in O. M. Franklin Serum Company v. C. A. Hoover & Son, 410 S.W.2d 272 (Tex.Civ.App.—Amarillo 1966) writ ref’d n. r. e. per curiam, 418 S.W.2d 482 (Tex.1967); and Ralston Purina Company v. Wiseman, 467 S.W.2d 669 (Tex.Civ.App.—El Paso 1971, no writ).

The controlling authority and the case relied upon by the court in Sheldon Petroleum Company, supra, is Ward v. Fairway Operating Company, 364 S.W.2d 194 (Tex.1963). There, the court was concerned with a domestic corporation and with the designation of a “registered office” as opposed to a “registered agent.” As noted, however, in Sheldon Petroleum Company the statutory language requiring the designation of a registered office and a registered agent for domestic and foreign corporations is essentially identical. Tex.Bus.Corp.Act.Ann., arts. 2.09 and 8.08. The rule announced in Ward should apply to both domestic and foreign corporations.

Article 8.08 of the Texas Business Corporation Act provides:

“A. Each foreign corporation authorized to transact business in this State shall have and continuously maintain in this State:
(1) A registered office which may be, but need not be, the same as its place of business in this State.
(2) A registered agent, which agent may be either an individual resident in this State whose business office is identical with such registered office, or a domestic corporation, or a foreign corporation authorized to transact business in this State, having a business office identical with such registered office . . . ”

The article clearly states that a registered agent’s business office must be identical with the registered office. We consider, therefore, the cases dealing with the designation of a “registered office” to be persuasive. See: United States Furniture Corp. v. Twilite Mobile Homes Mfg. Co., 355 S.W.2d 851 (Tex.Civ.App.—Dallas 1962, no writ); Ricks-Maguire Company v. Oliver, 373 S.W.2d 269 (Tex.Civ.App.—Amarillo 1963, no writ); Texas Auto Services, Inc. v. Kemp, 478 S.W.2d 646 (Tex.Civ.App.—Austin 1972, no writ); and Evans Associated Industries, Inc. v. Evans, 493 S.W.2d 547 (Tex.Civ.App.—Houston (1st Dist.) 1973, writ ref. n. r. e.).

Defendant principally relies upon Shamrock Oil & Gas Corporation v. Todd, 166 S.W.2d 766 (Tex.Civ.App.—Dallas 1942, no writ) in support of its argument that the designation of a registered agent residing in Dallas County does not, standing alone, make the defendant, for venue purposes, a resident of Dallas County. The rationale of Shamrock Oil & Gas Corporation was rejected by our Supreme Court in Ward, supra. See Ward v. Fairway Operating Company, 358 S.W.2d 143 (Tex.Civ.App.—Waco 1962), rev’d 364 S.W.2d 194 (Tex.1963). Furthermore, the court in Shamrock Oil & Gas Corporation was concerned with Article 2031a, Tex.Rev.Civ.Stat., which has been repealed.

The defendant is a resident of Dallas County, for venue purposes, because its registered agent is located in Dallas County. We have considered all of defendant’s points of error and they are all overruled.

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice. CADENA, Justice,

text:
    TEXAS EMPLOYMENT COMMISSION et al., Appellants, v. James R. HARTZHEIM, Appellee.
    No. 15684.
    Court of Civil Appeals of Texas, San Antonio.
    April 6, 1977.
    Michael E. Stork, Asst. Atty. Gen., Austin, for appellants.
    Tom Joseph, King, Joseph & Baucum, San Antonio, for appellee.
   KLINGEMAN, Justice.

This case involves a decision of the Texas Employment Commission that a claimant, Janice L. Windrow, was not disqualified from receiving unemployment benefits. This is an appeal from a judgment of the District Court of Bexar County, Texas, holding that such decision of the Texas Employment Commission was not supported by substantial evidence, reversing the decision of the Commission, and ordering a charge back to plaintiff’s, James R. Hartzheim, account.

Janice L. Windrow had been employed by Hartzheim for approximately five and one-half years at the time she was discharged. She then filed a claim for unemployment benefits; the appeal tribunal of the Commission held that the claimant was properly discharged for misconduct connected with her work and was disqualified to receive unemployment benefits. The Texas Employment Commission thereafter reversed the decision of the appeals tribunal and held that the actions of the claimant did not constitute misconduct connected with her work.

Hartzheim provided a computer accounting service to clients. Windrow, at the time of her discharge, supervised about five employees, instructing them with regard to their work duties, and a part of her work was spent in running a computer and in coding. It appears from the record that her work had generally been satisfactory, without any particular discord until the summer of 1974. At this time she took her vacation and after her return some problems arose.

Hartzheim testified that at this time he began receiving numerous complaints from clients, particularly with regard to the speed of the operations. He stated that he had observed that the keypunch machine was not being utilized for approximately two hours a day, generally during the lunch period when at least one of the girls would be gone from 11:30 to 1:30. He asked Windrow to operate a keypunch machine during the period that one was available. Hartzheim testified that despite his requests she did not do such work. The testimony discloses that Hartzheim and Windrow had a rather heated argument after some discussion. Hartzheim testified that at such time, he went into the office and Windrow was sitting at her desk making address corrections although a keypunch machine was available. Hartzheim testified that he spoke “rather harshly to her” but the testimony as to exactly what happened is in some conflict. Shortly thereafter Hartzheim fired Windrow.

Hartzheim testified that Windrow was not performing her job satisfactorily when she came back from her vacation and that this ultimately resulted in his having to let Windrow go. He stated that up until this vacation everything had gone fairly well, that Windrow had been able to maintain her assigned duties, and everything was running fairly compatibly in this area.

Windrow’s version is considerably different. She testified that when she got back from her vacation things were quite different — one employee was getting ready to quit, another employee had been hired in her absence, and Hartzheim’s sister-in-law was working in the office.

She stated that during the week before she was fired, Hartzheim, Berger (Hart-zheim’s assistant and computer programmer), and she had a conference with regard to the work; that she was told to arrange the lunch hours so that she could keypunch when one of the girls was out to lunch; that while she did not keypunch every day, she did do some keypunching; that she understood that she was to do what she could to get the work caught up, and that she made a conscientious effort to do so; that she was only taking about fifteen minutes for lunch and was doing editing and coding as fast as she could; that editing and coding was necessary in order for the others to do keypunching.

She stated that one of the reasons she wasn’t doing much keypunching was that there were only two machines available with three girls punching.

She testified that on the Friday immediately preceding her discharge, Berger had told her to watch the computer since he was leaving the office; that when Hartzheim asked her why she wasn’t keypunching she told him that she was getting ready to code; that unless she could do more coding, the other girls would not have anything to punch that afternoon.

She further testified that during the period after she returned from her vacation two new girls were being trained, that one of the employees was on vacation, and that it was not possible to keep up with all of the work; and that on the last day of her work basically they were only slightly behind in their work.

Appellant’s first point of error asserts that the trial court lacked jurisdiction because appellee did not comply with Art. 5221b-4(i), Tex.Rev.Civ.Stat.Ann. (1971), in instituting this cause.

The section here involved reads in part as follows:

Court Review: Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction in the county of claimant’s residence against the Commission for the review of its decision,

The decision of the Commission did not become final until February 7, 1975. Ap-pellee instituted his cause of action on February 6, 1975. Appellee asserts that this is a premature filing and that, therefore, the trial court was without jurisdiction.

In Texas Employment Commission v. Stewart Oil Co., 153 Tex. 247, 267 S.W.2d 137 (1954), the Supreme Court held that a premature filing would not defeat the jurisdiction of the court. In this case, Stewart had filed a petition in the trial court seven days after the adverse ruling of the Commission. The Supreme Court, in rejecting a contention that the trial court was without jurisdiction, said:

To insist upon the respondent’s subsequently filing a duplicate set of papers and obtaining a new filing stamp would be a retreat into formalism wholly inconsistent with the spirit of the Texas Rules of Civil Procedure.

The Court pointed out that the objective of the rules was to obtain a just, fair, equitable, and impartial adjudication of the rights of litigants, and that under such rules it was their duty to see that a case is disposed of upon its merits, where this can be done without doing violence to the rules or injustice to the rights of the parties. The Court held that the premature delivery of the petition to the clerk did not prevent it from taking effect upon the Commission’s ruling becoming final; and that they could find no harm done to the Commission by the premature filing.

The thrust of appellee’s contention in this regard is that since the Legislature added the words “and not before” to § 4 after the Supreme Court’s decision, the Legislature, by its action, intended to clear up any ambiguity; that the courts have held other portions of Art. 5221b to be jurisdictional; and that the same rule should apply to premature filing. Appellant has neither cited, nor have we found, any cases involving premature filing after the adoption of the amendment.

The amendment to the statute is somewhat ambiguous and unclear. The term “with ten (10) days after . . ., and not before” is to an extent contradictory on its face — how can you file or institute an action within ten days and not before? If the aggrieved party files on the tenth day, the contention could be made that it came too late, and if he files or commences his action on the ninth day, it could be contended that it is premature. We do not believe that the Legislature intended that an aggrieved party’s substantial rights be lost because of the somewhat unclear wording that is reasonably susceptible to different constructions. We have concluded that a more just and equitable construction is the same as taken by the Supreme Court in Texas Employment Commission v. Stewart Oil Co., supra.

We have concluded that under the rationale of the Stewart case, appellant’s point of error number one is without merit. Appellant has not been deprived of a fair hearing, and we can find no harm done to the Commission by the premature filing. Appellant’s first point of error is overruled.

Appellant’s second point of error asserts that the trial court erred in finding that the decision of the Texas Employment Commission was not supported by substantial evidence.

The courts of this State have consistently held that appeals from decisions of the Texas Employment Commission are governed by the substantial evidence rale. Texas Employment Commission v. Holberg, 440 S.W.2d 38 (Tex.1969); Redd v. Texas Employment Commission, 431 S.W.2d 16 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.); Texas Employment Commission v. Camacho, 394 S.W.2d 35 (Tex.Civ.App.— Dallas 1965, no writ); Texas Co. v. Texas Employment Commission, 261 S.W.2d 178 (Tex.Civ.App.—Beaumont 1953, writ ref’d n. r. e.); Todd Shipyards Corp. v. Texas Employment Commission, 245 S.W.2d 371 (Tex.Civ.App.—Galveston 1951, writ ref’d n. r. e.).

There are countless decisions to the effect that the order of the administrative agency must be upheld if it is reasonably supported by substantial evidence introduced in the trial court. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Jones v. March, 148 Tex. 362, 224 S.W.2d 198 (1949); Cusson v. Firemen’s & Policemen’s Civil Service Commission of San Antonio, 524 S.W.2d 88 (Tex.Civ.App.—San Antonio 1975, no writ); Texas Liquor Control Board v. Armstrong, 300 S.W.2d 146 (Tex.Civ.App.—San Antonio 1957, writ ref’d).

In Railroad Commission v. Shell Oil Co., 161 S.W.2d at 1029, supra, the Supreme Court set forth the applicable rule as follows:

The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.

Appellee asserts that the judgment of the trial court was correct because the appeals tribunal of the Commission ruled against the claimant after hearing the evidence and was in the best position to pass upon the facts; that the Commission, without hearing additional evidence, reversed the appeals tribunal; and that the Commission, in passing on the holding of the appeals tribunal, is also subject to ,the substantial evidence rale. Appellee cites no authorities in support of this contention and we have found none.

The pertinent portions of Art. 5221b — 4(e) (Unemployment Compensation) are as follows:

Commission Review: The Commission may on its own motion affirm, modify, or set aside any decision of an appeal tribunal on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it. The Commission may remove to itself or transfer to another appeal tribunal the proceedings on any claim pending before an appeal tribunal. Any proceeding so removed to the Commission shall be heard by a quorum thereof. The Commission shall promptly mail to the parties before it a copy of its findings and decision.

We do not consider such statute as supporting appellee’s contention. We have found no Texas cases directly addressing this question, and authorities that we have found from other jurisdictions are contrary to appellee’s contention.

Moreover, the question before us is — was the order of the administrative agency reasonably supported by substantial evidence introduced in the trial court? In the usual judicial review of an administrative order in Texas, the issue is not whether the regulatory’agency actually heard and considered sufficient evidence to reasonably support its action, but whether at the time the questioned order was entered there then existed sufficient facts to justify the agency’s order. The evidence actually heard by the agency is not material, but the parties are given a full opportunity in their appearance before a judicial body to show that at the time the order was entered there did, or did not, then exist sufficient facts to justify the entry of the same. Gerst v. Nixon, 411 5.W.2d 350 (Tex.1966); Cook Drilling Co. v. Gulf Oil Corp., 139 Tex. 80, 161 S.W.2d 1035 (1942); Cusson v. Firemen’s & Policemen’s Civil Service Commission of San Antonio, supra.

Appellee further asserts that the trial court did not err in finding that the decision of the Texas Employment Commission was not supported by substantial evidence. We disagree.

We have heretofore summarized in some detail the pertinent evidence. While the evidence is in some respects conflicting and perhaps subject to different conclusions, we are limited in our review by the substantial evidence rule, and in such review the issue is not whether or not the agency came to a proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. From a review of the evidence as a whole, we cannot say that reasonable minds could not have reached the conclusion that the Commission reached. We hold that the evidence before us, considered in its entirety, does not warrant the conclusion that the order of the Commission is without support in substantial evidence.

The judgment of the trial court is reversed and judgment here rendered affirming the decision of the Texas Employment Commission.

CADENA, Justice,

dissenting.

I cannot accept the conclusion that a suit seeking judicial review of an order of the Texas Employment Commission vests the court with power to review such order where the suit was filed before the order of the Commission became final.

The decision of the Supreme Court in Texas Employment Commission v. Stewart Oil Co., 153 Tex. 247, 267 S.W.2d 137 (1954), can have no controlling effect today. As pointed out in the majority opinion (n. 1), at the time the Stewart case was decided, § (i) of Art. 5221b-4, Tex.Rev.Civ.Stat.Ann. (1971), merely provided that judicial review of a decision of the Commission could be had by commencing an action in any court of competent jurisdiction against the Commission for review of its decision “Within ten (10) days after the decision of the Commission has become final.” Without commenting on the propriety of a judicial fiat to the effect that statutes must be construed in a manner consistent with judge-made rules, it is clear that the conclusion that a prematurely filed “appeal” clothes a court with authority to review a decision of the Commission has been repudiated by the Legislature.

The 1955 amendment of the statute permits judicial review of a Commission order if the action seeking such review is commenced “Within ten (10) days after the decision of the Commission has become final, and not before.” While the present statute may not be a model of clarity, it is clear that the addition of the words “and not before” was designed to serve some legislative purpose. In view of the fact that the additional words were added at the first legislative session following the Stewart decision, it is clear that the Legislature was less than completely happy with the Supreme Court’s decision that an “appeal” from a Commission ruling filed in court before the order of the Commission becomes final empowered the court to review such Commission order. In the face of this legislative rejection of the Stewart holding, the “rationale” of such holding, however persuasive we may find the Supreme Court’s refusal to “retreat into formalism wholly inconsistent with the spirit of the Texas Rules of Civil Procedure,” cannot be made the basis for the conclusion that the 1955 amendment of the statute is to be ignored. A judicial pronouncement that a statute means that A is B must be ignored where the statute has been subsequently amended to provide that A is not B.

I would sustain the Commission’s first point of error and hold that the trial court lacked jurisdiction to review the order of the Commission. This requires that the judgment of the trial court be set aside and appellee’s suit be dismissed for lack of jurisdiction.

      . Art. 5221b-4(i) then read as follows:
      “Court Review: Within ten (10) days after the decision of the Commission has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction in the county of claimant’s residence against the Commission for the review of its decision,

      . In 1955 the Legislature amended § 4 to read as follows: “Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction in the county of claimant’s residence against the Commission for the review of its decision, . . .

      .In Lemke v. United States of America, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953), the Supreme Court held that the premature filing of a notice of appeal in a criminal case did not ' destroy the appeal, and stated that any error, defect, irregularity, or variance which does not effect substantial rights, shall be disregarded.

      . “In such a case the issue is not whether or not the agency came to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. Hence it is generally recognized that where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence.” 161 S.W.2d at 1029.

      . In Chellson v. State Division of Employment and Security, 214 Minn. 332, 8 N.W.2d 42 (1943), the Supreme Court of Minnesota, in interpreting a Minnesota statute comparable to the Texas Unemployment Compensation Act, held: “We determine, therefore, that the test on this appeal is whether there is reasonable support in the evidence to sustain the decision of the director rather than the decision of the appeal tribunal. It has been held under statutes providing for a similar method of review that the final administrative authority has the power to review the evidence and make its own independent findings of fact and render a decision thereon, despite the fact that the findings contained in the prior administrative determination had support in the evidence.”

      . In its decision holding that the claimant was entitled to unemployment compensation benefits, the Commission made certain findings of fact and conclusions of law which may be summarized as follows:
      “About one week before the claimant’s separation the employer told the claimant that she should keypunch during the two hours at lunch each day when the key punch machines were not being used because her department was behind in its work. The claimant keypunched at lunch on one day during her last week. . The employer asked the claimant once about her not keypunching during the lunch hours. She told him that she needed to do the coding and editing or there would not be work for the key punch operators. She thought that her actions were in the employer’s best interests and were satisfactory to him. On the claimant’s last day of work, the employer directed her to keypunch and, after some discussion, she did so. At the end of that day when she left, the work was caught up. However, the employer decided to discharge her because she had not keypunched during the lunch hours, and did so by telephone.”
      Under its conclusions, the Texas Employment Commission said in part:
      “We do not think that the claimant’s actions amounted to misconduct connected with the work. She thought that she was performing in the best interests of the employer. On the only occasion when he had questioned her about keypunching during the lunch hours, she explained the reason that she was doing coding and editing instead. When the employer finally specifically directed her to keypunch, she did so.”

      . Texas Employment Commission v. Stewart Oil Co., 153 Tex. 247, 267 S.W.2d at 138 (1954).


author: MASSEY, Chief Justice.

text:
    Lynda Kaye VIBROCK, Appellant, v. Wendell Harvey VIBROCK, Appellee.
    No. 17818.
    Court of Civil Appeals of Texas, Fort Worth.
    April 7, 1977.
    Rehearing Denied May 5, 1977.

      Carter, Jones, Magee, Rudberg, Moss & Mayes, and Charles M. Wilson, III, Dallas, for appellant.
    Davis & Walker, and Jeff Walker, Arlington, for appellee.
   OPINION

MASSEY, Chief Justice.

Suit was by plaintiff Lynda Kaye Vi-brock against her ex-husband Wendell Harvey Vibrock to seek an interest in renewal commissions earned and accrued on insurance policies sold by him which by her was claimed to have been omitted of consideration in the partition of the parties’ property upon divorce. Suit was brought as a new case in a different court from that in which divorce had been obtained.

Defendant Vibrock moved for summary judgment and such was granted by the court. Therefrom plaintiff appealed.

We reverse and remand the cause for trial.

Vibrock had initially contracted with the Fidelity Union Life Insurance Company to sell its policies of insurance in October of 1965. That contract ceased in April of 1970, after approximately 4½ years. He entered the service of another insurance company. Thereafter, about May of 1971, Vibrock entered into a new contract with Fidelity Union to sell its policies, and from that time until the trial the same continued in effect.

Both the time Vibrock initially contracted with Fidelity Union Life Insurance Company and also when he contracted anew in May of 1971 he and the plaintiff were married. They were divorced by the Domestic Relations Court of Tarrant County, Texas, on January 4, 1973.

The divorce decree, made a part of the record on hearing the summary judgment, provided in part as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that each party hereto take as his or her sole and separate property all such property as is presently in his or her possession.
“The Court finds that the parties own community property and that said property should be divided in an equitable manner.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the community property owned by the parties shall be divided as follows: “Petitioner is awarded the following property: 1969 Buick Automobile. 3003 Fielder, Arlington, Texas, legally described as follows: (here description of a parcel of realty). Furniture and Appliances. “Respondent is awarded the following property: 1964 Oldsmobile Automobile. 1417 West Lavender, Arlington, Texas, legally described as follows: (here description of a parcel of realty). 2000 Shares Commercial Computer Services, Inc. Stock.”

Vibrock’s affidavit stated that he was married to plaintiff on both occasions when he entered into contract with the Fidelity Union Life Insurance Company; that she was familiar with the fact that these contracts contained provisions relative to his right to renewal commissions. Plaintiff’s affidavit stated: “I was aware that his (Vibroek’s) compensation was from commissions on policies written and renewal commissions when they were renewed. No mention was made to me at the time of the divorce that I would have a right to a percentage of these renewal commissions earned on policies written during the time of our marriage. No discussion was had as to this and no advice was given me by counsel.”

On provisions of Vibrock’s contracts with Fidelity Union Life Insurance Company: After the portion thereof which set forth the Agent’s entitlement (Vibrock’s) on “first year commissions on premiums”; the same for “second year commissions”; and the same for “subsequent years” was a provision as follows: “Agent agrees that for so long as this contract shall remain in force and effect, he will not enter the service of any other insurance company . . ..”

Further contractual provisions: “No renewal commission shall be payable on the business produced during any contract year not fully completed by the Agent while in the service of the Company. . . . Renewal commissions are paid in recognition of continuous full time service and as compensation for services rendered in keeping the business in force.” Further, “If for any reason this contract should be terminated within three (3) years, no renewal commissions shall be paid to the Agent thereafter.”

To be finally noticed is the further provision, viz.: “24. The terms and conditions of this contract may be altered only by a written instrument signed by two executive officers of the Company at its Home Office; and all previous contracts are hereby can-celled ; and any liability to the Agent under the same is hereby acknowledged to have been fully satisfied.” (Emphasis supplied.)

To be observed from the last of the provisions is that we are concerned merely with Vibrock’s period of service for the Fidelity Union Life Insurance Company between the time of his second contract and the time of the divorce decree, or a period substantially less than two years. This is so because all contractual liability of Fidelity Union under the first contract was eliminated when the second contract was signed. (By the second contract Vibrock was re-awarded credits for renewals under the first but for our purposes the fact may be disregarded.)

Also to be observed is that the contractual responsibility of Fidelity Union for the “second year commissions” for policy renewals had not matured at time of the parties’ divorce. They may have been paid, or an advancement against the liability therefor made. If this had occurred the provisions of the judgment probably took care of it. However, Vibroek’s evidence on his motion for summary judgment did not establish plaintiff’s inability to prove that it had not occurred and/or that it was a property right which was taken into consideration in the division of property upon divorce. The transcript of the testimony at the divorce trial was not made part of the record at summary judgment trial.

Had there been at time of the divorce a dispute concerning plaintiff’s proportionate interest to any amount of the second year renewal premiums theretofore earned by her husband it would have been matter tried. At the summary judgment hearing there was not proof that it was tried. Unlike the situation on trial on the merits the issue should have been eliminated by Vibrock’s proof showing that it was tried. This the statement of facts would have resolved. Since it was not part of Vibrock’s proof the summary judgment may not be affirmed on his asserted ground of res adjudicata. The judgment must be reversed because of the presence of a material issue of fact to be tried.

The material issue of fact is whether plaintiff’s claim of interest in Vibrock’s renewal commission entitlement as of date of the divorce trial was or not considered by the court as a part of the property to be divided or to be taken into consideration in the apportionment made of other property. If it was not considered and tried plaintiff’s suit could be maintained and relief pursued. As applied thereto she and Vibrock continued as tenants-in-common in relation to it until their relative rights should be determined. Busby v. Busby, 457 S.W.2d 551 (Tex.1970).

It is not merely an interest in such second year renewal premiums that plaintiff seeks; rather it is apparent that she seeks to have impressed upon all the future premium income (or at least the right) in the form of renewal premiums upon all the insurance policies contracted by Vibrock, as Agent, between the time of his second contract with Fidelity Union Life Insurance Company and the divorce on January 4, 1973. In view of the necessity for a trial on the merits we will dissent.

We are of the opinion that by the contract of Vibrock with Fidelity Union Life Insurance Company the liability of the latter was made contingent upon conditions precedent as applied to Vibrock’s entitlement to any renewal premiums, both before and after date of the parties’ divorce; that by contract not only would Vibrock be obliged to continue this contract itself in force, but also to service the business he had placed on the books. The contract provided that his entitlement was (or would be) “. . .in recognition of continuous full time service and as compensation for services (to be) rendered in keeping business in force.’’ (Emphasis supplied.)

For the trial court to award plaintiff the interest she sought would be to award her a personal judgment which would not be referable to property in existence upon divorce. There could not have been judgment in rem as establishing an interest in property, for the property right of Vibrock had not yet come into existence at time of the divorce decree and as of that time was one which might never come into existence; and any judgment rendered in favor of the plaintiff for a percentage interest therein would by force of law have been a judgment in personam, at least in indivisible proportion. On this principle of law there are many cases which could be cited. Most are discussed in 20 Tex.Jur.2d, p. 611, “Divorce and Separation”, Ch. XIX “Alimony”, Sub. C., “After Divorce”, § 289, “In general”; in 16 South Texas Law Journal (1974— 1975), p. 1, “A Wife’s Right to Support Payments in Texas”, by Edward W. Turley, Jr.; and in Francis v. Francis, 412 S.W.2d 29 (Tex.1967).

The rationale of cases cited by plaintiff do not apply to the issue because Vibrock’s anticipatory right was to neither an ascertainable or vested or divisible interest, and because the entitlement of Vibrock is not merely subject to forfeiture, but furthermore because the interest itself, because of express contractual provisions, may never become existent. Plaintiff’s cases include Herring v. Blakeley, 385 S.W.2d 843 (Tex.1965); Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App., San Antonio 1968, writ dism’d); and Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976).

There has not, to this time, been an extension of the principle begun with Herring, supra, to the character of renewal commissions to insurance agents which are here involved. For any such extension to be made we believe it should be by the Supreme Court and not by a Court of Civil Appeals.

The judgment is reversed, with the cause remanded for a trial on the merits.


author: HUGHES, Justice.

text:
    Kathryn M. UPTON et vir., Appellants, v. TOWN & COUNTRY CLEANERS et al., Appellees.
    No. 17824.
    Court of Civil Appeals of Texas, Fort Worth.
    April 7, 1977.
    Rehearing Denied May 5, 1977.

      Mock, Fleniken & Spurlock, Wm. J. Flen-iken, Jr., of Fort Worth, for appellants.
    Garrett, Settle & Callaway, and Phillip W. Gilbert, Forth Worth, for appellees.
   OPINION

HUGHES, Justice.

This is an appeal by Kathryn and William Upton, husband and wife, from a judgment non obstante veredicto in a “slip-and-fall” case. The Uptons filed this suit against Town & Country Cleaners No. 2 and Town & Country Cleaners, Inc. for personal injuries and damages after Kathryn fell on defendants’ premises. For brevity we shall call the defendants “Cleaners.”

The Uptons assert that the trial court erred:

First — In not rendering judgment for them on the basis of the jury verdict;

Second — In disregarding the jury finding that Cleaners, through agents, servants or employees, knew or should have known of the existence of accumulated gravel on their driveway;

Third — In disregarding the jury finding that Cleaners was negligent in failing to inspect the premises for the accumulation of gravel, or in failing to remove it; and

Fourth — In disregarding the jury finding that such negligence was a proximate cause of Kathryn’s injuries.

Cleaners argues there was no evidence and, alternatively, insufficient evidence for the jury to have made the disregarded findings. By cross-points Cleaners also asserts that the trial court erred in failing to disregard the jury’s finding that Cleaners created or maintained a dangerous condition on its premises through the alleged accumulation of gravel on its driveway.

We affirm.

Kathryn testified that she arrived in her car at Town & Country Cleaners No. 2 at 4 p.m. to return some clothes. She parked in the driveway in front of the building on the east side. She walked into the building and had an exchange of words with the manager, Mrs. Marie Putt, over the cleaning of some slacks and a dress. She turned around and walked out of the building, the slacks and dress in hand; took three or four steps past the step-down to the east edge of the pavilion; slipped and fell on the concrete on her knee and hand. After she fell, she saw very small, colored gravel all over the concrete area where she lay. She saw the bone protruding from her knee and was unable to move herself. Gravel was removed from her knee at the hospital.

William testified to rushing to where his wife lay and to kneeling in the gravel by her side. Most of the gravel was of a color that blended in with the color of the paved surface. He also said that the pea-size gravel was scattered “broadcast” in the area where his wife lay and that he saw Dr. Kleuser remove a piece of gravel from her knee at the hospital. Further, William testified to an area of dirt, gravel and sand adjacent to the drive and about ten to twelve feet away from the scene of the accident as well as to a depression in the area between the concrete slab and the asphalt parts of the driveway. Both concrete and asphalt slanted downward toward the street.

All the other witnesses were employees of Cleaners. They either denied seeing any gravel or did not remember seeing any gravel where Kathryn fell. The maintenance man, Ben McKnight, testified to checking the area every day and sweeping and cleaning up the drive one to three times a week. He did not state whether he had checked the driveway that day before the accident, but did state that he- checked the drive after Kathryn’s fall and did not see any gravel. He also testified that he had never seen any significant build up of gravel on the driveway. Mrs. Putt testified that she had not checked his work that day.

To sustain the granting of a motion to disregard special issue findings, we must determine that there is no evidence on which the jury could have based its findings. We are under a duty to consider the testimony in this case in the light most favorable to the Uptons and to indulge every reasonable intendment and inference in support of the jury’s findings. We must reject all evidence and inferences contrary to those findings. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Johnston Sales Company v. Lizana, 513 S.W.2d 879 (Tex.Civ.App., Waco 1974, no writ).

However, the Uptons have the burden of proving either that Cleaners placed the gravel on the driveway or that Cleaners knew or should have known in the exercise of reasonable care, of the existence of the gravel before the accident and that it involved an unreasonable risk to invitees. Carrell v. Williams, 430 S.W.2d 586 (Tex.Civ.App., Waco 1968, writ ref’d n.r.e.); Restatement (Second) of Torts § 343 (1965).

So far as this record shows, Cleaners had no knowledge of the gravel on the driveway or any danger on the approach. Nor is there any evidence that suggests they ought to have known. Camp v. J. H. Kirkpatrick Co., 250 S.W.2d 413 (Tex.Civ.App., San Antonio 1952, writ ref’d n.r.e.); Marshall v. San Jacinto Bldg., 67 S.W.2d 372 (Tex.Civ.App., Beaumont 1933, writ ref’d.).

Nothing had ever occurred prior to the time of Kathryn’s fall that should have served as a suggestion, warning, or notice to the owner of the presence of danger any different from or greater than existed elsewhere. Camp v. J. H. Kirkpatrick Co., supra, 250 S.W.2d at 419.

Conceding, as we must, that there was gravel where Kathryn fell, we are compelled to hold that the Uptons have failed to make the necessary proof of negligence in Cleaners’ failure to remove the gravel from the driveway.

We sustain, therefore, Cleaners’ contention and the trial court’s ruling that there is no evidence to support the jury’s affirmative answers to the negligence issues. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968). We overrule all of the Uptons’ points of error.

We have examined Cleaners’ cross-points and found them without merit. They are all overruled.

Judgment is affirmed.


text:
    A. E. SAIKOWSKI, Appellant, v. Hardy L. GAGE et ux., Appellees.
    No. 17812.
    Court of Civil Appeals of Texas, Fort Worth.
    April 7, 1977.
    Rehearing Denied May 5, 1977.
    Banner, McIntosh & Dobbs, and Jack G. Banner, Wichita Falls, for appellant.
    Fillmore, Lambert, Farabee, Purtle & Lee, Larry. L. Lambert, Wichita Falls, Nelson, Montgomery & Robertson, and David L. Tate, Wichita Falls, for appellee Edd Pruitt.
   OPINION

MASSEY, Chief Justice.

By our decision in this case the judgment of the trial court is affirmed.

Hardy L. Gage and his wife contracted with A. E. Saikowski to purchase a new home building of the latter. The sale and purchase failed of consummation.

As plaintiffs the Gages brought suit against Saikowski alleging that they had by their contract to purchase deposited the amount of $50,000.00 to be applied upon the total price of Saikowski’s building upon closing; that the failure to consummate the purchase was by reason of Saikowski’s breach of contract; that by reason of such breach they had suffered damages “including the $50,000.00 paid . . . which has not been returned.” Prayer to the Gages’ petition was that “they recover judgment for return of their $50,000.00 and for such other damages as they may show themselves justly entitled . . . .”

In response Saikowski brought cross-action against the Gages for the relief of specific performance by them of their contract and, in the alternative, for damages accruing to Saikowski for his profit (not specified) which would have resulted upon consummation of the parties’ contract. Further, in the alternative, and in the event of failure to recover of the Gages for breach of contract, etc., Saikowski sought damages of a third-party cross-defendant because of damages to the subject house, through its use and occupancy by consent of Saikowski with the Gages.

It was without objection that the trial court framed and submitted the charge to the jury. There was no special request for any issue in addition to those submitted.

In material substance the jury found that Saikowski did not breach the parties’ contract as claimed by the Gages; that it was the Gages who breached the contract; that Saikowski suffered $10,000.00 in damages as a direct result of the failure of the Gages to close, i. e., to consummate the contract; and that Saikowski suffered damages of $5,000.00 in market value depreciation of the house and $5,000.00 because of its soi-lage and harm, during the period it was allowed to be used by the third-party cross-defendant prior to the time the Gages breached their contract. Shortly after the breach of contract the third-party occupants moved out of the house.

The verdict of the jury was returned on January 9, 1976. April 22, 1976 the court permitted the Gages to file a trial amendment alleging to be a penalty the provision of the parties’ contract providing: “Should the Purchaser fail to consummate . Seller shall have the right to retain said cash deposit as liquidated damages for the breach . . . .” The judgment was signed on April 22, 1976.

The judgment provided (upon appropriate motion, etc.) that answers of the jury whereby there was found to have been damages to Saikowski of $5,000.00 depreciation in market value and $5,000.00 damages from soilage to his premises by the third-party occupant were to be set aside and annulled; that the jury finding that Sai-kowski had suffered $10,000.00 by reason of the Gages’ breach of contract to purchase was to persist. Applying to the $50,000.00 held by Saikowski on deposit by the Gages (for application upon the purchase price) a credit in the amount of his $10,000.00 entitlement, the court proceeded to render judgment in favor of the Gages and against Saikowski for the amount of $40,000.00.

Therefrom Saikowski appealed.

By the court’s charge to the jury Saikowski had his affirmative cause of action submitted as one for damages resulting from the Gages’ breach of contract. He abandoned any claim for Gages’ specific performance. He therefore was confined in his recovery by judgment to the damages proved by him and found, in accord, by the jury verdict. He could not be entitled to any relief from the third-party cross-defendant because such was requested alternatively and only in the event he failed to show any entitlement to relief against the Gages.

In view of the foregoing Saikowski must be held to have consented, by necessary implication, that the $50,000.00 of the Gages in his possession at the time, was their money; that he did not seek to retain it by contractual agreement, but instead waived any right thereto save as applied to the portion, if any, which he might on trial establish to have been his actual breach of contract damages. This result was because of his own pleadings, not through any force of the pleading of the Gages save, perhaps their plea for general relief.

We wholly disregard materiality of the trial amendment permitted to be filed by the Gages on the date of the judgment. To disregard is merely to acknowledge that Saikowski did not seek any damages by contract, and that he did not insist upon any right to retain the $50,000.00 held on deposit (save and except such portion thereof which he was able to prove upon trial to be the proper amount of his entitlement as damages).

Indicated is that the contract provided for a penalty rather than for an amount truly representative of a proper agreement for liquidated damages, but on that question the issue would be required to be resolved by evidence. Here there was not any evidence, nor was there a necessity therefor. Neither party ever declared upon any entitlement for the contractual amount for which there was provision by the contract as liquidated damages. Each set of parties went to trial upon pleadings which demanded common law damages flowing from the breach of agreement each charged against the other.

Upon presentment of the verdict of the jury it clearly became the duty of the trial court to award Saikowski the $10,000.00 in actual damages found to have been suffered because of the loss of his bargain by breach of contract by the Gages. Since Saikowski was holding $50,000.00 belonging to the Gages (of which they were found by the jury to owe $10,000.00 because of their breach of contract) it was entirely proper to render a judgment which decreed Saikow-ski’s liability to return to them the balance of $40,000.00.

Heretofore noticed is the absence of any entitlement by Saikowski to recover from the third-party cross-defendant that $5,000.00 in damages found by the jury to have been done to the house during period of his occupancy.

Remaining is the $5,000.00 found by the jury to have represented the decrease in market value of the house because of its having become a used rather than new one through the occupancy of such third person.

Saikowski insists he is entitled to this as additional damages. Already noticed is that occupancy was by agreement of Sai-kowski with the Gages. What Saikowski says, by necessary implication, is that because he believed that the Gages would consummate their contract with him he had consented that third persons enter into occupancy of the house during the interim period, with a consequent reduction in its market value because of its use (apart from any consideration of any direct damage).

There is not denial that Saikowski sustained loss through depreciation in value of the house because it became a “used” rather than a “new” house. However, it must be recognized that when Saikowski consented the occupancy was the same as had it been by the Gages. In any event the resultant depreciation was “damage” which was foreseeable by Saikowski when he consented.

Under these circumstances Saikowski could not recover rents or damages for use in occupancy until the date of repudiation and breach of contract by the Gages. Any right of Saikowski to recover on these premises necessarily depended upon either express or implied contract whereby he became landlord. This he certainly could not have become until the day the Gages breached their contract. Brown v. Randolph, 26 Tex.Civ.App. 66, 62 S.W. 981 (1901, no writ history).

Furthermore, Saikowski would be presumed to have recovered the very damages which would be involved. Judgment was based upon jury verdict that the $10,000.00 in damages was the amount which “would fairly and reasonably compensate Saikowski as a direct result of the failure of the Gages to close . . . To add to the damages awarded by judgment the additional $5,000.00 desired by Saikowski would of necessity be to award double compensation for the same injury. This the law forbids; it could not be error to refuse Saikowski the additional $5,000.00.

Therefore, the trial court did not err in disregarding the jury’s answer to the special issue by which it had found the $5,000.00 depreciation.

The judgment is affirmed.


author: JAMES, Justice.

text:
    Wilford KAMARATH, Appellant, v. C. C. BENNETT, Appellee.
    No. 5692.
    Court of Civil Appeals of Texas, Waco.
    April 14, 1977.
    Rehearing Denied May 5, 1977.
    Michael M. Daniel and Virginia Paxton, Carol M. Barger, Dallas, for appellant.
    James H. Martin, Dallas, for appellee.
    Larry Niemann, Niemann & Niemann, Austin, amicus curiae.
   OPINION

JAMES, Justice.

This is a landlord and tenant case. Plaintiff-Appellant Wilford Kamarath sued Defendant-Appellee C. C. Bennett for damages for breach of an alleged “implied warranty of habitability” of residential rental premises. Trial was had before the court without a jury, after which the trial court entered judgment that the tenant Kamar-ath take nothing, from which the tenant appeals. We affirm.

On March 1, 1975, Plaintiff Kamarath rented an apartment from Defendant Bennett. The apartment was located in a seventy-five year old two-story brick building. Kamarath inspected the premises prior to renting them. The rent agreed to was $110.00 per month with all utilities being paid for by the landlord, including water, gas, electricity, and sewer. The lease was oral and on a month-to-month basis. Ka-marath was an unemployed disabled veteran who had a wife and six children, ages two to nine, living with him.

On June 24, 1975, the building inspectors of the City of Dallas inspected the premises in response to a complaint made by Kamar-ath. Shortly thereafter, Bennett was notified by mail that the building was in violation of the Dallas Minimum Housing Standards and that Bennett would either have to repair the premises or close them down. Said notice stated that the landlord would have to make a number of itemized repairs in order for the building to conform to the Building Code of the City of Dallas. Specifically, the building code as pleaded by Plaintiff Kamarath is alleged to be contained in the City of Dallas Urban Rehabilitation Standards Ordinance Number 12167, as set out in the Revised Code of Civil and Criminal Ordinances of the City of Dallas.

In July of 1975 Kamarath stopped paying rent, claiming he was justified in doing so because the premises were unfit for human habitation; however, he did not vacate the premises at that time.

On or about July 24,1975, Kamarath filed this suit against Bennett the landlord, asserting that Bennett violated an implied warranty of habitability by failing to repair the premises. The suit sought actual damages of $5000.00, exemplary damages of $5000.00, treble actual damages ($15,000.00) under the Texas Deceptive Trade Practices Act (see Section 17.50 of the Texas Business and Commerce Code), foreclosure of an asserted judgment lien against the building and against the rent Kamarath claimed he held in his possession, and for interest and attorney’s fees.

Then sometime in July or early August of 1975, landlord Bennett analyzed the repairs called for by the City building inspectors and concluded they were too costly, and that the building was too old and rundown to make the repairs worthwhile. That is to say, the landlord chose to close the property down rather than to put more money into the property. He gave notice in mid-August to all tenants to vacate the premises. He (landlord Bennett) testified that all of the tenants except Kamarath complied. Thereafter, in late September 1975, because of his refusal to vacate, Kamarath was evicted by a forcible entry and detainer suit.

This case for damages was tried in July 1976 before the court without a jury, after which the trial court entered judgment that Plaintiff Kamarath take nothing. Pursuant to request by Plaintiff-Appellant, the trial court made findings of fact and conclusions of law, pertinent of which are as follows:

(1) That Plaintiff orally rented the residential premises on a month-to-month basis from the Defendant;

(2) Plaintiff inspected and accepted the premises in their then state of repair, and at said time Plaintiff made no condition on Defendant’s obligation as to the then state of repair of the premises;

(3) Nor did he (Plaintiff) make any condition as to the Defendant’s obligation as to the future state of repair of the premises;

(4) Defendant made no representation as to the existing state of repair of the premises at the time of renting;

(5) Defendant made no promise as to the future state of repair of the premises at the time of renting;

(6) The change, if any, in the state of repair from and after the renting was no more than ordinary wear and tear resulting from Plaintiff’s occupancy;

(7) That Plaintiff failed to pay to Defendant the monthly rent when due; nevertheless, Plaintiff continued occupancy of the premises until removed by judicial decree;

(8) Plaintiff during the occupancy of the premises suffered no injury to his person nor damage to his property arising from the state of repair of the premises;

(9) Plaintiff was not actually or constructively evicted from the premises by the state of repair of such premises;

(10) The fair cash market value of the premises at the time of the renting was $110.00 per month;

(11) And such rental value was not diminished during Plaintiff’s occupancy by reason of its state of repair beyond ordinary wear and tear due to Plaintiff’s occupancy.

Based upon the foregoing fact findings, the trial court concluded that the Defendant Bennett did not breach any contract with Plaintiff or violate any duty in law owed to Plaintiff concerning the state of repair of the premises in question, and held that Plaintiff take nothing.

Appellant asserts twelve points of error; however, points one through five, inclusive, deal with the central issue vital to Plaintiff’s cause of action, to wit: which rule should govern this landlord-tenant relationship: caveat emptor, or a legally implied duty to supply fit premises? Appellant argues that the creation of a month-to-month oral lease carries with it an implied warranty of habitability, and that this warranty obligates the landlord to repair the premises in compliance with the city building code standards. Appellant further asserts that the city building code itself imposed a duty on Defendant Bennett as landlord to maintain the premises in a fit condition. We do not agree.

Let us first consider Appellant’s argument that the mere creation of a month-to-month lease creates an implied warranty of habitability. Here we have an oral month-to-month lease whereby the agreed rental is $110.00 per month, and the landlord agrees to furnish the utilities. There is no express agreement on the part of the landlord to make any repairs, and there is no assertion by the tenant that the landlord is guilty of any fraud or deceit concerning the making of repairs or the failure to make them.

The rule is well-settled in Texas that in the absence of fraud or deceit, there is no implied covenant that the demised premises are fit for occupation, or for the particular use which the tenant intends to make of them. Lynch v. Ortlieb (1888) 70 Tex. 727, 8 S.W. 515, Perez v. Raybaud (1890) 76 Tex. 191, 13 S.W. 177; Cameron v. Calhoun-Smith Distributing Co. (Austin Tex.Civ.App.1969) 442 S.W.2d 815, no writ. Also see 35 Tex.Jur.2d, “Landlord and Tenant,” Section 50, page 537. A landlord is not bound to repair unless there be a covenant or agreement on his part to do so. Weinstein v. Harrison (1886) 66 Tex. 546, 1 S.W. 626; Yarbrough v. Booher (1943) 141 Tex. 420, 174 S.W.2d 47, 150 ALR 1369.

Our Supreme Court has said: “The mere relation of landlord and tenant creates no obligation on the part of the landlord to repair or keep in repair the leased premises. The tenant takes the premises as he finds them.” Morton v. Burton-Lingo Co. (1941) 136 Tex. 263, 150 S.W.2d 239. Also see Weiss v. Mitchell (Dallas Tex.Civ.App.1933) 58 S.W.2d 165, writ dismissed; Jackson v. Amador (Eastland Tex.Civ.App. 1934) 75 S.W.2d 892, writ dismissed; 35 Tex.Jur.2d, “Landlord and Tenant,” Section 82, page 572. In the light of the foregoing authorities, we hold that the lease in the case at bar did not impose by implication a duty on the part of the landlord to make repairs to the leased premises.

Now let us consider Appellant’s argument that the City of Dallas Building Code imposed a duty on the Defendant landlord to maintain the premises in a fit condition. The language of the City Ordinance in question is not in the record. According to the record before us, Appellant sought to offer in evidence the files of the city housing inspector concerning the premises in question; however, the record shows no offer of proof by Appellant of the City Ordinance itself. As stated before, Appellant pleaded the ordinance by name and reference to title, but made no proof of the ordinance. Judicial notice is not taken of municipal ordinances, but they must be proven like other facts. State ex rel. Osborn v. City of McAllen (Tex.Comm.App.1936) 127 Tex. 63, 91 S.W.2d 688, 692, opinion adopted; City of Austin v. Walton (1887) 68 Tex. 507, 5 S.W. 70. Without proof of the provisions of the city ordinance in question in the case at bar, we cannot say that it puts any duty of any kind upon the Defendant-Appellee landlord, including an implied duty to make repairs on the premises in question. Therefore we overrule Appellant’s contention that the city ordinance in question imposed a duty on the landlord to maintain the premises in a fit condition for human habitation.

Appellant cites Humber v. Morton (Tex.1968) 426 S.W.2d 554 in support of his assertion that the doctrine of caveat emptor has been discarded by our Supreme Court in landlord-tenant relations. We do not agree. Humber was an action by a purchaser of a (new) house and lot from the vendor who was also the contractor who built the house. There it was held that the contractor-vendor impliedly warranted that such house was constructed in a good workmanlike manner and was suitable for human habitation. In making this decision our Supreme Court discarded the doctrine of caveat emptor insofar as it applied to the builder and seller of new houses. Appellant says the Court’s reasoning in Humber should be applied by analogy to the landlord-tenant relationship, so as to impose an implied covenant by the landlord to make repairs to render premises suitable for human habitation. To adopt Appellant’s argument would cause us to run counter to the many pronouncements of our Supreme Court as cited hereinabove which do not impose such an implied covenant on the landlord. Therefore we are of • the opinion and hold that Humber does not have application to the case at bar.

Appellant has other points and contentions; however, under our view of the ease as stated above, said points have been rendered moot. All of Appellant’s points are accordingly overruled.

Judgment of the trial court is affirmed.

AFFIRMED.


author: McDONALD, Chief Justice.

text:
    James R. BROWN, Appellant, v. CITY OF DALLAS, Appellee.
    No. 5681.
    Court of Civil Appeals of Texas, Waco.
    April 14, 1977.

      Douglas R. Larson, Johnston, Larson & Dixon, Dallas, for appellant.
    Lee E. Holt, Douglas H. Conner, III, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from summary judgment plaintiff Brown take nothing in suit against defendant City for damages for destruction of plaintiff’s personal property located on premises condemned from plaintiff by the City.

Plaintiff sued defendant to recover damages for his furniture and fixtures left in a building on Second Avenue in Dallas. Plaintiff alleged the City condemned such property; that the Commissioners awarded him $17,500; that he appealed such award; that he (with others) filed suit in Federal Court to have such condemnation proceedings declared unconstitutional; that an agreement was entered between his attorney and the City Attorney that no property owner need relinquish his property until the federal litigation was completed; that on October 4, 1971, the City without a Writ of Possession bulldozed the building on the real estate condemned, destroying some $12,000. worth of personal property left in the building; for which plaintiff sought damages.

Defendant City denied all plaintiff’s allegations, and further plead plaintiff was personally present and represented by counsel in the condemnation case when he was awarded $17,500. for the property; that City had deposited such amount; and that plaintiff knew or should have known of the City’s intention to take possession.

Defendant thereafter filed motion for summary judgment.

The record on summary judgment shows plaintiff’s real estate was condemned on September 30, 1970; that plaintiff was awarded $17,300. plus $200. for moving expense; that the City deposited such amount in the registry of the court; that same “was withdrawn” on November 4, 1970; that plaintiff denied receiving same; that plaintiff appealed from the award;' that plaintiff’s attorney did not agree with defendant’s attorney to postpone any owner’s relinquishment of possession; that the City notified plaintiff’s attorney August 2, 1971, that it “plans to take possession of the property and remove all improvements this week”; and that the City did take possession and bulldozed the building on the property on October 4, 1971.

The trial court granted defendant’s motion, and rendered summary judgment plaintiff take nothing.

Plaintiff appeals on one point: The District Court erred in granting the motion for summary judgment.

Summary judgment should not be granted, and if granted should be affirmed only if the summary judgment proof establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., Tex., 450 S.W.2d 827; all burdens are on the movant. Swilley v. Hughes, Tex., 488 S.W.2d 64. The party opposing the motion for summary judgment is not required to establish his right to prevail. Glenn v. Prestegord, Tex., 456 S.W.2d 901; Lewter v. Dallas County, Tex.Civ.App. (Waco) NRE, 525 S.W.2d 885; Watts v. Everett, Tex.Civ.App. (Waco) NWH, 543 S.W.2d 14.

Article 3268 VATS provides that in the event the condemnor “desire to enter upon and take possession of the property sought to be condemned, pending litigation, it may do so at any time after the award of the commissioners, upon the following conditions”: a) by paying to the landowner the amount of damages awarded against con-demnor, or b) deposit the same in money in court, “subject to the order of the defendant (landowner)”; and pay the court costs; plus other requirements not here pertinent. The words “subject to the order of the defendant”, mean that the landowner can withdraw the deposit. Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93.

The record on summary judgment establishes the City deposited the amount of the award in court subject to the order of the landowner; but it does not establish that the City has paid the court costs.

The City secured an order of possession from the Judge of the County Court at Law which they rely on as entitling them to possession. But no writ of possession was ever issued pursuant to such order. The order issued by the County Court at Law, absent a writ of possession, does not entitle the City to take possession.

The City as movant for summary judgment did not establish its entitlement to same as a matter of law.

Plaintiff’s point is sustained.

REVERSED and REMANDED.