text:
    James Hamilton BEDGOOD and Robert E. Sorenson, Appellants, v. Herbert MADALIN and Wife Sally Madalin, Individually and as Surviving Parents of their Minor Son, Robert Madalin, Appellees.
    No. 1394.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 11, 1979.
    Rehearing Denied Nov. 15, 1979.

      Floyd VanHuseman, Maddin, White, Huseman, Pletcher & Powers, Inc., Lev Hunt, Kleberg & Weil, Corpus Christi, for appellants.
    Guy Allison, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

The primary issues in this appeal are whether a bystander parent can recover damages for mental anguish resulting when he heard the impact sound caused by an automobile striking his son and then observed his son’s injuries shortly before he died, and whether the various damage awards in this case are supported by the evidence.

This case arose out of an accident on September 14, 1974, wherein Robert Mada-lin, the eleven year old son of Herbert and Sally Madalin, was struck and killed by a car driven by James Hamilton Bedgood. At the time, Robert was playing with some friends on the frontage road in front of the Madalin home. Also, at the time, Robert E. Sorenson was a passenger in and the owner of the offending car.

The Madalins, individually and as surviving parents and personal representatives of their minor deceased son, Robert, brought this suit against Bedgood and Sorenson under the Texas Wrongful Death Act, Tex. Rev.Civ.Stat.Ann. art. 4671 (1940) and the Texas Survival Statute, Tex.Rev.Civ.Stat. Ann. art. 5525 (1958). They also sought recovery for their mental anguish resulting from the incident herein. Defendants admitted liability prior- to trial. Thus, the only evidence presented at the jury trial herein concerned the amount of damages.

Trial was to a jury which found that Dr. and Mrs. Madalin were entitled to $35,-000.00 for their pecuniary loss, that their deceased son’s estate was entitled to $25,-000.00 for conscious pain and mental anguish, that Mrs. Madalin was entitled to $25,000.00 for her own mental anguish, that Dr. Madalin was entitled to $20,000.00 for his mental anguish, that Dr. Madalin was entitled to $5,000.00 for loss of earning capacity following the incident herein. The parties stipulated that the Madalins were entitled to $4,033.52 for funeral expenses. The trial court then entered judgment favorable to the Madalins for the amount of $114,033.52. Defendants’ motion for new trial was overruled and they appealed.

Appellants have brought forward 21 points of error. Appellants’ points 1, 2, and 12 through 15 concern the jury’s award of $25,000.00 to Mrs. Madalin for mental anguish and $20,000.00 to Dr. Madalin for mental anguish.

On August 26, 1975, the original petition in this case was filed in the names of “Herbert Madalin and wife, Sally Madalin, individually and as surviving parents and personal representatives of their minor deceased son, Robert Madalin.” The action alleged negligence by the defendants. Although they sought damages under the Texas Wrongful Death Act and the Texas Survival Statute, they made no specific allegations about damages for mental anguish.

Defendants filed their second amended answer on March 28, 1977, in which they denied the defendants were liable for any sorrow, anguish or grief suffered as a result of Robert’s death. On March 28, 1977, the defendants also filed an admission of liability which stated:

“Now come James Hamilton Bedgood and Robert E. Sorenson, defendants and file this their Admission of Liability for such damages as the jury may determine resulted to plaintiffs from the accident of September 14, 1974, described in Plaintiffs’ petition.”

The case went to trial on February 13, 1978. At the beginning of the trial the trial judge stated that he thought the pleadings were sufficiently broad to permit the plaintiffs to recover damages for mental anguish if they could establish that they actually incurred emotional damages as a result of seeing their son killed. The judge also concluded that the Admission of Liability admitted liability for Dr. and Mrs. Madalin’s mental anguish. There was then a discussion by defendants’ counsel about whether the defendants had been given proper notice of the cause of action for mental anguish. The court determined that they had, and ordered the parties to proceed to trial. Defendants made no motion for continuance.

Appellants’ point 1 contends that the trial court erred in ruling that the Admission of Liability had the effect of admitting liability for the appellees’ mental anguish. '

Appellants’ argument here seems to be that because the Admission of Liability closed with the phrase “described in Plaintiffs’ petition” and because plaintiffs’ petition does not mention Dr. and Mrs. Ma-dalin’s claim for mental anguish that liability in that regard was not admitted. We disagree. According to the “doctrine of the last antecedent” normally used in construing'statutes, relative and qualifying phrases are to be applied to the words or phrases immediately preceding them, and are not to be construed as extending to others more remote. Quindlen v. Prudential Insurance Company of America, 482 F.2d 876, 878 (5th Cir. 1973); City of Corsicana v. Willmann, 147 Tex. 377, 216 S.W.2d 175, 176 (1949). We think this rule of construction may also be applied in this case. The phrase herein, “described in Plain-petition” modifies the phrase “accident of September 14, 1974,” rather than the word “damages” stated earlier in the sentence. Thus, we hold that the appellants admitted liability for such damages, including for mental anguish, as the jury might determine resulted to plaintiffs from the September 14,1974, accident. Appellants’ point 1 is overruled.

Appellants’ point. 2 contends the trial court erred in rendering judgment for Dr. and Mrs. Madalin for mental anguish because there were no pleadings concerning mental anguish, because recovery was barred by the two year statute of limitations and because as a matter of law Dr. and Mrs. Madalin could not recover damages for mental anguish. Concerning the lack of pleadings, even if the appellants were not notified of the cause for mental anguish prior to trial, the court, by his ruling at the beginning of the trial, in effect, allowed a trial amendment in this regard and no request for a continuance based upon surprise was made by the appellants to preserve the error. See Hardage v. Rouly, 349 S.W.2d 616, 618 (Tex.Civ.App.—Beaumont 1961, writ ref’d n. r. e.). The lack of pleadings contention is overruled.

About the limitations allegation, the cause of action for mental anguish relates back to the time the suit was filed in that the amendment did not arise out of a new, distinct or different transaction and occurrence. Tex.Rev.Civ.Stat.Ann. art. 5539b (1958), Leonard v. Texaco, Inc., 422 S.W.2d 160 (Tex.Sup.1967). The assertion concerning limitations is overruled.

Appellants’ final argument under point 2 states that Texas will not allow recovery for the mental anguish of a bystander who, for example, observes an accident which causes the death of his child. We disagree. In Landreth v. Reed, 570 S.W.2d 486, 489 (Tex.Civ.App.—Texarkana 1978, no writ), the Court reviewed Texas authorities in this area and concluded that Texas would follow the lead set by Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), and allow a bystander’s recovery where a person’s negligence causes manifested mental anguish which was foreseeable by the negligent party. In determining foreseeability in this type of case the Court in Landreth set out several relevant factors:

“(1) whether the plaintiff was located near the scene of the accident;
(2)whether the shock resulted from a direct emotional impact upon the plaintiff from a contemporaneous perception of the accident as distinguished from learning of the accident from others after its occurrence; and
(3)whether the plaintiff and the victim were closely related.”

See also Covington v. Estate of Foster, 584 S.W.2d 726 (Tex.Civ.App.—Waco 1979, no writ). In addition, the foreseeability that a parent would either witness or be within earshot of the accident can be evaluated by studying such factors as follows:

“(1) age of the child;
(2) the type of neighborhood in which the accident occurred;
(3) the familiarity of the tortfeasor with the neighborhood;
(4) the time of day; and
(5) all other circumstances which would have put the tortfeasor on notice of the likely presence of a parent.”

D’Ambra v. United States, 354 F.Supp. 810, 820 (D.C.R.I.1973), Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 765 (1974); Arauz v. Gerhardt, 68 Cal.App.3d 937, 137 Cal.Rptr. 619 (1977).

In the instant case, Dr. Madalin stated that on the day of the accident he and Robert were in the back yard working together. Robert then left to play with some friends at the front of the house. Dr. Ma-dalin stayed in the back yard where he was about 100 feet from the place of the accident. He said he heard a vehicle approaching. Then, when asked whether he heard the car hit his son he replied that he heard a loud scream from Robert. He then stated that a few seconds later he heard a loud thud “like a watermelon being dropped from a great height.” Dr. Madalin then headed for the back door and went through the house to the front yard. He estimated that from the time of the scream to the time he reached his son was less than a minute; i. e., he did not delay. When he reached the scene of the accident he saw his son lying face down on the ground with his head near the curb. Dr. Madalin then turned his son over and discovered that he was bleeding profusely from a torn artery, that his lip was cut, that his face was covered with blood, and that he had other injuries including bruises. He gave his opinion that his son was unconscious at this time. The evidence is also clear that Dr. Madalin was Robert’s father. Thus, the three part requirement stated in Landreth v. Reed, supra, is met.

As to the other considerations concerning the foreseeability to the defendants that Dr. Madalin would contemporaneously perceive the accident, we note the discussion in a footnote to D’Ambra v. United States, supra at 820. There the Court cited a quotation from H. Smith, Relations of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli, 30 Va.L.Rev. 193, 239 n. 152 (1943—44) where he stated:

“ ‘If D’s negligence injures a child of any age in his own yard or house, the likelihood that relatives may witness the episode would seem to be a foreseeable risk.’ ”

So it was here that Robert was fatally injured while playing in front of his house on a Saturday during the daylight hours in a residential neighborhood. We find no difficulty in finding that a reasonably prudent person would foresee the presence of a parent under these circumstances. Moreover, we have no difficulty with the fact that Dr. Madalin did not visually witness the accident, but rather heard it and then witnessed the results soon thereafter. His perception of the accident was still contemporaneous. See Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022 (1977), Arauz v. Gerhardt, supra.

Appellees admitted during oral argument, and we agree, that Mrs. Madalin who was at a nearby shopping center at the time of the accident, does not meet the requirements set forth in Landreth v. Reed, supra, and that her $25,000.00 award for mental anguish should be remitted. Point 2 is overruled as to Dr. Madalin and sustained as to Mrs. Madalin.

Appellants’ points 12 through 15 (as they apply to Dr. Madalin) contend that the trial court erred in allowing Dr. Madalin to testify concerning his mental anguish and that the evidence is legally and factually insufficient to support the jury’s verdict of $20,-000.00 for Dr. Madalin’s mental anguish. We disagree.

First, the law is clear that a party may testify as to his own mental suffering if that is an issue in the case. Missouri K. & T. Ry. Go. of Texas v. Miller, 25 Tex.Civ.App. 460, 61 S.W. 978 (1901, writ ref’d); 23 Tex.Jur.2d Evidence § 499 (1961).

Second, we find the evidence was sufficient to support a $20,000.00 award for Dr. Madalin’s suffering. Dr. Madalin testified that he is a specialist in thoracic and cardiovascular surgery, who had practiced medicine in Corpus Christi since 1960, and that he had been chief of staff at two Corpus Christi hospitals in 1974 and 1975. He explained that immediately after the accident, he suffered from depression and started taking certain types of medication to sleep and control his nerves, because “it was just unbearable” without them. He then stated that in his medical opinion depression is a physical injury which causes changes in the brain cells. Further, he stated that his capacity for work was reduced by 50% the first year after the accident, 30% after the second year, 20% after the third year and at the time of trial probably 10%.

Dr. Leroy Boriak, a physician in family practice, who testified that he daily dealt with depression, explained that he arrived at the scene of the accident before the ambulance did. He said that Dr. Madalin suffered from depression, that people can die from depression, that one just does not function at full capacity when he is depressed. He also stated at the time of trial, nearly three and a half years after the accident, that Dr. Madalin was still depressed.

Mental anguish, like pain and suffering, is difficult to quantify and any determination of an award should be left to the intelligence and conscience of the jury. After reviewing the evidence, we find the evidence legally and factually sufficient to justify the $20,000.00 award for Dr. Mada-lin’s mental anguish. Appellants’ points 12 through 15 are overruled insofar as they relate to the award to Dr. Madalin.

Appellants’ point 3 contends that the trial court erred in permitting Dr. Ma-dalin to testify about the values of the contributions his son might have made to him in his practice of medicine.

As appellants admit in their brief, the evidence showed that Robert Madalin was a bright, intelligent young man who was interested in science, wanted to go to medical school and showed an interest in practicing medicine with his father. The record also reflected that Robert had an I.Q. of 125 or 130, and that, according to his father, he was smart enough to be a doctor.

Appellants’ specific complaint is that over objection, Dr. Madalin was allowed to testify that “If [Robert] were a referring doctor that referred every single case that he had to me, I would estimate his value would be anywhere from $20,000.00 to $30,000.00 a year, even possible more if he’s in a busy practice.” Appellants complain that this testimony should not have been allowed because there were no facts given upon which to base Dr. Madalin’s opinion. The record is clear, though, that Dr. Madalin’s entire medical practice was based upon referrals from other doctors. We find no abuse of discretion in the trial court’s allowing Dr. Madalin to give evidence concerning the

value of referrals. See State v. Evans, 340 S.W.2d 99, 101 (Tex.Civ.App.—Waco 1960, writ ref’d n. r. e.); 2 McCormick and Ray, Texas Law of Evidence § 1422 (2nd ed. 1956). Appellants’ point 3 is overruled.

Appellants’ points 4 through 7 and part of 21 assert that the jury’s award of $35,-000.00 for loss of future pecuniary benefits from the deceased is excessive in that there is legally and factually insufficient evidence to support such an award.

“In a wrongful death case the amount of damages to which the beneficiaries are entitled is primarily and peculiarly within the province of the jury, and in the absence of a showing that passion, prejudice or other improper matters influenced the jury, the amount assessed by them will not be set aside as excessive.” J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728, 744 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.). But, where the amount is so excessive as to shock a sense of justice in the minds of the appellate court, the verdict will be found to be excessive. Main Bank & Trust v. York, 498 S.W.2d 953, 955 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.).

In determining the amount to be awarded, the jury may consider the rapid devaluation of the value of the dollar. Roberts v. Tatum, 575 S.W.2d 138 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). Also, in a case such as this, the reviewing court must review all of the evidence, and view it in the light most favorable to the award. In Re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); Bell Aerospace Corporation v. Anderson, 478 S.W.2d 191, 201 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.).

Texas courts have historically followed two approaches in determining excessiveness in damages; namely, looking to precedent from other cases and looking to the facts and circumstances of each case. Halliburton Company v. Olivas, 517 S.W.2d 349 (Tex.Civ.App.—El Paso 1974, no writ). In Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.), the Court cited the Halliburton case and the two methods above mentioned. The court explained that the practice of comparing awards in other cases was unsatisfactory because of the factual differences in the cases and also because of the continued erosion of the value of the dollar. It preferred the “particular case” approach “inadequate as it is.” In light of the rapid inflation being experienced today, we also tend to follow the Best decision, but will not ignore the instructive value of damage awards in other cases.

Appellants cite several cases in which the plaintiffs received awards for the death of a child less than the $35,000.00 herein. In addition to the many cases cited in appellants’ brief, we have inspected authority out of Texas and have found awards in excess of the one in the case before us. See An-not., 49 A.L.R.3d § 4 (1973). In light of inflation, we cannot say that the purchasing power the plaintiffs obtained in the Texas cases cited by appellants was less than the purchasing power of the $35,000.00 award in this case. But, as stated earlier, we will consider these cases as merely instructive and look with greater emphasis on the particular facts of this case.

Placing a present value on the potential earning capacity of any individual is uncertain at best. Roth v. Law, 579 S.W.2d 949, 958 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n. r. e.). Where an estimate has to be made concerning the future earning capacity of a minor, the problem is magnified. See Stein, Personal Injury and Death Actions § 254 (1972). Generally, where a child has never earned any money, nor shown any particular abilities or aptitudes, the jury must determine the value of the child’s lost earnings based upon their common knowledge and their sense of justice. Roth v. Law, supra, at 958.

In this case there is some evidence of Robert’s interests and aptitudes and their potential value which we fully realize is uncertain and possibly optimistic. There is also extensive evidence of the child’s superior mental abilities and scholastic aptitude and the fact that he loved his parents and expressed his kindness and affection generously. He also helped work in the yard and garden. The jury could infer from all of this that in all reasonable probability the deceased child might have been of considerable financial value to Dr. Mada-lin’s practice or that he would have helped support his parents in their advanced years or in the event of their disability or economic hardship. Compare Landreth v. Reed, supra; Borak v. Bridge, 524 S.W.2d 773 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). We cannot say that the award is excessive or that the evidence is legally or factually insufficient to support the verdict. Appellants’ points 4 through 7 and part of 21 are overruled.

Appellants’ points 8 through 11 and the remainder of 21 complain that the trial court erred in permitting Dr. Madalin to testify that his child was conscious after the impact of the collision. These points also submit that the evidence is legally and factually insufficient to support an award of $25,000.00 for conscious pain and suffering and mental anguish and that this award is excessive.

In addition to the previous evidence concerning this matter, the following evidence pertains to this point. Only two people testified at trial about the events and circumstances immediately before and after the accident. The first witness, Glenn Stella, was in his automobile on the frontage road following the vehicle which struck the child. The evidence indicates that the child was playing with some friends on or near the curb of the road. He explained that as the appellants’ vehicle approached the boy, Robert looked up in the air, saw the vehicle headed toward him and threw up an arm as if in self-defense. Stella then saw the vehicle hit the child and knock him some distance away to the grassy area between the sidewalk and the access road. When asked whether he saw or heard anything else, he replied that he did not because the windows on his car were rolled up. When asked whether Robert was rendered unconscious immediately he replied, “That is correct.” He also stated that he never heard Robert say anything.

Dr. Madalin was the only other person who testified about the accident. Besides the testimony mentioned by us earlier, Dr. Madalin stated that based upon what he saw at the scene and based upon his medical experience, the cause of his son’s unconsciousness was his head hitting the curb. He then stated that as far as he could tell, his son’s head injury occurred when his head hit the curb after being thrown about 60 to 80 feet after impact. Based upon all this, he testified that it was his opinion that his son was conscious when he screamed, probably as he was being thrown through the air by the impact of the vehicle. Dr. Madalin then gave his opinion that his son experienced pain during the time he was tossed through the air. He also gave an opinion based upon his medical experience, that his son experienced mental anguish before his death. Dr. Madalin then stated that his son experienced brain death while he and his son were riding to the hospital in an ambulance.

Appellants’ point 8 complains that Dr. Madalin should not have been allowed to testify that Robert was conscious after impact because he did not see the accident, because Robert was unconscious when he arrived at the collision scene and because Glenn Stella had already testified that Robert was unconscious immediately after the accident.

The essence of appellants’ challenge is that because Dr. Madalin was in the back yard at the time of the impact he cannot give an opinion of consciousness. Though Dr. Madalin did not see the actual impact, he heard a scream, heard a thud and then observed the scene of the accident immediately after it occurred. We do not find it too speculative to assume that Dr. Madalin could have inspected the curb, the surroundings, and Robert’s physical condition and reach a conclusion about what probably caused his head injury. We realize it is quite possible that Robert was unconscious from the time of impact as Glenn Stella testified. However, Glenn Stella’s non-medical opinion about unconsciousness is not conclusive on this Court. See Texas Consolidated Transportation Co. v. Eubanks, 340 S.W.2d 830, 937 (Tex.Civ. App.—Waco 1960, writ ref’d n. r. e.). We think that considering all the circumstances, the trial court did not err by permitting Dr. Madalin to give his opinion as to consciousness based upon what he heard, what he saw, and his medical experience. It would then be the jury’s province to decide the weight to be given Dr. Madalin’s opinion.

About the questions of the ex-cessiveness of the award for pain and suffering and mental anguish and the sufficiency of the evidence to support the award, we first make a few observations. The existence of pain and suffering can be established by circumstantial evidence. Landreth v. Reed, supra; Canales v. Bank of California, 316 S.W.2d 314 (Tex.Civ.App.—Eastland 1958, writ ref’d n. r. e.). Moreover, it is presumed that pain and suffering and mental anguish naturally accompany a severe physical injury. Qualls v. Miller, 414 S.W.2d 746, 748 (Tex.Civ.App.—Texarkana 1967, writ dism’d); Canales v. Bank of California, supra; Griffith v. Casteel, 313 S.W.2d 149 (Tex.Civ.App.—Houston 1958, writ ref’d n. r. e.). Because of its nature, the existence of pain and suffering and mental anguish is not capable of being accurately determined and accordingly there is no fixed rule or standard for its measurement. Thus, the degree must be left to the sound judgment of the jury, subject only to correction by the courts for abuse and ex-cessiveness. Landreth v. Reed, supra, at 492. We hold there was legally and factually sufficient evidence that Robert was conscious after the impact to raise a jury issue as to whether he experienced the pain and mental anguish presumed to accompany a severe injury.

About the excessiveness of the award, we have reviewed Annot., 49 A.L.R.3d 934 (1973), Landreth v. Reed, supra, (which awarded $30,000.00 for a fourteen month old child’s pain and suffering while drowning) and many of the cases cited in appellants’ brief that restricted recovery for pain and suffering to amounts below the $25,000.00 awarded herein. In light of inflation, however, we cannot say that the trial court erred in allowing the award as to pain and suffering and mental anguish to stand. Appellants’ points 8 through 11 and 21 are overruled.

Appellants’ points 16 through 20 challenge the legal and factual' sufficiency of the evidence to support a $5,000.00 award for loss of earnings, and the admissibility of Dr. Madalin’s testimony concerning his loss of earnings. Appellants, however, have not briefed these points. Having found no fundamental error, we consider the points as waived. Cleaver v. Dresser Industries, 570 S.W.2d 479, 482 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.). Even so, we have reviewed the evidence and find it legally and factually sufficient to support the $5,000.00 award. Appellants’ points 16 through 20 are overruled.

Appellees bring one cross-point in which they allege the trial court erred in granting appellants’ special exception which deleted their pleadings seeking exemplary damages and in failing to grant a motion to reinstate their cause for exemplary damages. We disagree.

As we have mentioned earlier, the Mada-lins brought this suit in their individual and representative capacities. Among other things, they sought exemplary damages for Robert’s death. Based upon Tex.Const. art. XVI, § 26, the appellants filed special exceptions to these allegations. The exceptions were sustained.

Tex.Const. art. XVI, § 26, provides:

“Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.”

As observed by the court in Smith v. Farrington, 8 S.W.2d 317 (Tex.Civ.App.—Amarillo 1928, no writ):

“By this article of the constitution [article 16 § 26] the recovery of exemplary damages for death is limited to the classes of persons therein specified, and it is held that a parent cannot recover exemplary damages for the death of a child.” Id. at 317.

See also Scoggins v. Southwestern Electric Service Company, 434 S.W.2d 376 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.); Fleming Oil Co. v. Watts, 193 S.W.2d 979, 981 (Tex.Civ.App.—Texarkana 1946, writ ref’d n. r. e.).

Appellants contend that this constitutional rule only applies to suits brought for wrongful death under the Texas Wrongful Death Act, Article 4671, supra, and that it does not apply to the Texas Survival Statute, Article 5525, supra. In short, appellees argue that they are suing on behalf of Robert’s estate, which is tantamount to Robert’s bringing the suit himself, and his estate is, therefore, not limited by the Constitution.

In Winnt v. International & G. N. Ry. Co., 74 Tex. 32,11 S.W. 907, 908 (1889), the Court stated:

“[T]he right to maintain an action for the recovery of exemplary damages for the death of a person caused by the wilful act, omission, or gross neglect of a corporation or company, etc. is confined to the class of persons who, by the terms of the constitution, are designated as entitled to maintain such action; namely, the surviving husband or wife, or heirs of the body, of the deceased, and not to the parent.”

Compare Scoggins v. Southwestern Electric Service Company, supra, at 379. The Constitution does not provide that the decedent’s estate is exempt from its provisions or that the estate may bring such an action. To hold that the estate can sue for exemplary damages while parents may not, would be tantamount to enlarging the class of persons who can recover exemplary damages for a child’s death. See e. g. Tex.Prob. Code Ann. § 38 (1956). In order to maintain an action for exemplary damages on behalf of a decedent, the parties must show by their pleadings that they come within the class of persons designated in the Constitution. See Winnt v. International & G. N. Ry. Co., supra, 11 S.W. at 908.

It is evident from Dr. and Mrs. Madalin’s pleadings herein that they do not qualify under the constitutional requirements; therefore, the trial court properly struck their pleadings seeking exemplary damages. Appellees’ cross-point is overruled.

In accordance with our sustaining appellants’ points concerning the $25,000.00 award to Mrs. Madalin for her mental anguish, we order that a remittitur of $25,-000.00 be filed in this Court by the appellees within ten days from the .announcement of this decision, whereupon this Court will reform the judgment of the trial court by the amount of the remittitur; otherwise, the judgment of the trial court will be reversed and the cause remanded for a new trial.

The judgment of the trial court is affirmed on condition of remittitur.

SUPPLEMENTAL OPINION ON THE FILING OF REMITTITUR

This Court has suggested that appellee Sally Madalin remit the sum of $25,000.00 out of the amount awarded to her as set forth in the original opinion. The appellee has filed a remittitur in the amount suggested by this Court.

Therefore, in accordance with the opinion of this Court heretofore announced, the judgment of the trial court is reformed to the extent of the amount hereby remitted by the appellee so that the amount of judgment against the appellants is reduced to the sum of $89,033.52.

The judgment of the trial court as herein reformed is hereby affirmed.


source: Caselaw Access Project

author: ' CARVER, Justice.

license: Public Domain

text:
    Thomas O’CONNOR, Appellant, v. GLITSCH ENGINEERING & SALES CORPORATION, Appellee.
    No. 19936.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 12, 1979.
    John M. Gillis, Dallas, for appellant.
    Richard L. Jackson, Shuford, Jackson & Allen, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   ' CARVER, Justice.

Thomas O’Connor, appellant, brings a writ of error to test a judgment rendered in favor of Glitsch Engineering & Sales Corporation, appellee. Although O’Connor filed an answer, neither O’Connor nor his attorney appeared for trial. Consequently, we hold that the writ of error proceeding is available to O’Connor. We further hold that Glitsch failed to prove its cause of action alleging interference with a contract because the existence of the contract itself was not shown. Consequently, we reverse the judgment and remand for trial.

Appellee contends that a writ of error is not available to O’Connor because O’Connor filed an answer but failed to appear at trial. We cannot agree. Tex.Rev. Civ.Stat.Ann. art. 2249a (Vernon 1971) provides:

Section 1. No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.
Sec. 2. All laws and parts of law, insofar as they conflict with this Act, are repealed. Writ of error shall continue to be available under the rules and regulations of the law to a party who does not participate in the trial of the case in the trial court.

As we read this language, a writ of error is available to a party if he does not participate in the actual trial. Since the only challenge made by the appellee rests in the reasons for non-appearance of O’Connor and his counsel, we conclude that a writ of error is available. It is not the reason for non-appearance but non-appearance itself which is the condition for review by writ of error. Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941). A party need not justify his failure to appear and defend in order to be entitled to a review by writ of error. Stafford Construction Co. v. Martin, 531 S.W.2d 667 (Tex.Civ.App.-El Paso 1975, no writ); Riley v. Mead, 531 S.W.2d 670 (Tex.Civ.App.-El Paso 1975, no writ). We conclude that our review on appellant’s writ of error is proper and the scope of the review is the same as on appeal. Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965).

Appellant attacks the judgment of the trial court on the ground that plaintiff failed to prove a contract. In order to bring a cause of action for tortious interference with a contract, there must be in existence a valid contract subject to that interference. Armendariz v. Mora, 553 S.W.2d 400 (Tex.Civ.App.-El Paso 1977, writ ref’d n. r. e.); Glenn v. Gidel, 496 S.W.2d 692 (Tex.Civ.App.-Amarillo 1973, no writ). A witness offered by Glitsch testified as follows:

Q. Can you identify these documents, generally, as being the contractual documents establishing your contractual relationship with KRP?
A. Yes, I can. This would have the knowhow agreement, the license agreements, the preincorporation agreements, the charter, initial minutes, all the agreements that we did enter into preincorpo-ration venture agreement.
Q. And these agreements were all entered into between Glitsch Engineering . and Sales on the one hand and KRP , Plastics on the other hand in April, 1974?
A. That’s correct.

The testimony was concluded with no further effort to prove the contract. In particular, the record reflects the following:

MR. JACKSON: We don’t have any further questions, Your Honor.
THE COURT: Counsel, do you intend to have this marked as an exhibit and offer it?
MR. JACKSON: No, Your Honor, I did not. I set it there for the Court’s review and since it is part of the record, we are not going to mark it.
THE COURT: Very well.

No other proof of the contracts) allegedly interfered with by O’Connor was tendered and admitted in the appellate record. Without the three, or more as described, agreements before us and without the aid of testimony as to their terms, we are unable to make a determination of which, or any, or all, of such contracts were subject to interference and were breached because of the acts of O’Connor. We conclude that in the absence of this necessary proof, Glitsch failed to sustain its burden to make out a case for relief in this abbreviated record. Accordingly, the trial court’s default judgment is reversed and this cause remanded for trial.


author: AKIN, Justice.

text:
    Robert M. VOLPE, Relator, v. T. Mack STEPHENS, Respondent.
    No. 20139.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 16, 1979.

      Paul T. Fanning, Dallas, for relator.
    Larry S. Pamass, Irving, for respondent.
    Before AKIN, ROBERTSON and STO-REY, JJ.
   AKIN, Justice.

This is an original proceeding in which relator, Robert Volpe, seeks, pursuant to Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon 1964), to mandamus a court reporter, T. Mack Stephens, to prepare a statement of facts for appeal of a case pending between appellant and appellees, Charles and Joneen Scholobohm. Appellant filed a $500 cost bond in the trial court as required by Tex.R. Civ.P. 354. The reporter has filed a motion in this court to increase that cost bond to cover the cost of preparing the statement of facts. Tex.R.Civ.P. 365. We hold that a writ of mandamus should issue. We also grant the motion to increase the cost bond.

The facts are not disputed. Appellant timely perfected an appeal to this court by filing a $500 cost bond and requested that the reporter prepare the statement of facts. Tex.R.Civ.P. 365. The reporter replied that he would require a $500 deposit before commencing preparation and full payment before delivery of the statement of facts. Appellant’s attorney initially agreed to these terms but later repudiated the agreement, and the reporter refused to continue preparation of the statement of facts. An affidavit of the reporter estimates that the statement of facts will cost $2,162.50. He contends that because appellant’s attorney promised to pay in advance and did not do so, and because appellant filed only a $500 cost bond knowing the statement of facts would cost substantially more, the writ of mandamus should not issue. He also contends that Tex.Rev.Civ.Stat.Ann. art. 2324 (Vernon Supp.1979) supports his theory. These contentions are without merit.

We have held that the language of article 2324, the statute defining the duties of official court reporters, imposes a mandatory duty on the court reporter to prepare the statement of facts on request. The court reporter has no right to require prepayment before preparing the statement of facts. Alexander v. Bowens, 581 S.W.2d 714 (Tex.Civ.App.—Dallas 1979, no writ). We adhere to the statements and holding in Alexander. Accordingly, when appellant filed a $500 cost bond, perfecting his appeal under rule 354, and requested the statement of facts, the reporter had a mandatory duty to prepare it. Mandamus will issue to compel performance of this duty. Fine v. Page, 572 S.W.2d 577 (Tex.Civ.App.—Eastland 1978, writ dism’d); City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App.—Corpus Christi 1976, no writ).

The reporter contends, however, that no appeal was perfected by the filing of a $500 appeal bond because appellant knew at the time that the bond was insufficient. We reject this contention because whether an appeal has been perfected depends upon the rules of civil procedure rather than upon extraneous facts such as appellants’ knowledge of the inadequacy of the bond. To hold as the reporter would have us do would make our jurisdiction depend upon disputed extraneous facts and thus render uncertain whether a losing party had perfected his appeal. Such a holding would be untenable because it would create uncertainty with respect to whether this court obtained jurisdiction or whether jurisdiction continued in the trial court.

The reporter next argues that because the appellant at first agreed to pay the down payment but later refused to do so, mandamus should be denied. We cannot agree that this is a ground upon which to deny mandamus. Such a holding would inject equity into both rule 354 and article 2324, contrary to the language used in both rule and statute, each of which is specific. Essentially, the reporter argues that the facts of each particular case should determine whether a $500 cost bond is sufficient to perfect an appeal. Prior to 1976, the reporter’s contention was correct since sufficiency of the cost bond depended upon certification by the clerk of the trial court. To determine sufficiency, the clerk was required to estimate the cost of appeal for each case, including preparation of the statement of facts. For an example of the problems that arose under this rule, see Lone Star Steel Co. v. Owens, 302 S.W.2d 213 (Tex.Civ.App.—Texarkana 1957, writ ref’d n. r. e.). Since January 1, 1976, however, Tex.R.Civ.P. 354 makes a $500 cost bond sufficient unless the trial court fixes a different amount upon motion of either party. The reporter would have us disregard rule 354 as it is currently written and return to the former language of the rule. This we cannot do. We conclude, therefore, that because these contentions lack merit, appellant is entitled to his writ of mandamus and the reporter is ordered to prepare, forthwith, the statement of facts in this cause.

The reporter is not without remedy, however, to assure adequate compensation for his preparation of the statement of facts. Although the trial court lost jurisdiction when the $500 appeal bond was filed, Fine v. Page, supra, at 579, Tex.R.Civ.P. 365 gives us authority to require an additional bond, whether arising from inadequacy of the bond fixed by the trial court or “from any subsequent condition which may arise affecting the sufficiency of said bond.”

Rule 354 allows the trial court to increase the bond on motion of either party. A motion to increase the appeal bond under rule 365 is not so limited by its language to parties. Consequently, we hold that the reporter has standing in this court to move that the bond be increased to protect his fees. The reporter has exercised his remedy under rule 365 by filing a motion with this court to increase the appeal bond. His affidavit avers that from his notes he estimates that the statement of facts will be 850 pages and that he charges $2.25 per page and $250 for binding and indexing, which he avers is reasonable. From this he estimates the statement of facts will cost $2,162.50. Appellant has not challenged the facts set forth in the reporter’s affidavit. Consequently, we grant the reporter’s motion to increase the appeal bond in the cause of Volpe v. Scholobohm, et ux., to $2,662.50.


author: GUITTARD, Chief Justice.

text:
    Alma SEALE, Relator, v. Honorable Joseph ASHMORE, Judge, et al., Respondents.
    No. 23379.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 17, 1979.
    Morton Rudberg, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for relator.
    James J. Hartnett, Cecil G. Magee, Dallas, for respondents.
    Before GUITTARD, C. J., and ROBERTSON and STOREY, JJ.
   GUITTARD, Chief Justice.

Relator Alma Seale has moved for leave to file a petition for writ of mandamus or prohibition to prevent respondent Joseph Ashmore, judge of one of the probate courts of Dallas County, from acting in a probate proceeding in which he is allegedly disqualified because of personal knowledge of the relevant facts. We deny the motion for lack of jurisdiction because the writ is not necessary to enforce our jurisdiction, as required by article 1823, Tex.Rev.Civ.Stat. Ann. (Vernon 1966).

The basis for our jurisdiction is section 6 of article V of the Texas Constitution which, after defining the appellate jurisdiction of the courts of civil appeals, provides further that these courts “shall have such other jurisdiction, original and appellate as may be prescribed by law.” The legislature has defined our original jurisdiction in several statutes, of which we need consider here only article 1823, Tex.Rev.Civ.Stat. Ann. (Vernon 1964), which provides: “Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”

These provisions were construed by this court in Texas Employers’ Ins. Ass’n v. Kirby, 150 S.W.2d 123 (Tex.Civ.App.—Dallas 1941, no writ) as limiting our jurisdiction to issue writs of prohibition as well as mandamus to cases in which the issuance of such a writ is necessary to enforce our appellate jurisdiction, previously invoked, or to safeguard our judgments. Id. at 125. The court observed further that it had no “general supervisory control over district and county courts.” Id. at 126. That opinion was specifically approved by the Supreme Court. Texas Employers’ Ins. Ass’n v. Kirby, 137 Tex. 106, 152 S.W.2d 1073 (1941). It has been followed in later cases in which courts of civil appeals have held that they had no original jurisdiction to issue a writ of prohibition because their appellate jurisdiction had not been invoked. Guillory v. Davis, 527 S.W.2d 465 (Tex.Civ.App.—Beaumont 1975, no writ); Cogdell v. Williams, 461 S.W.2d 187 (Tex.Civ.App.—Eastland 1970, no writ).

Relator cites in support of our jurisdiction the opinion of the Texarkana Court of Civil Appeals in Turner v. Chandler, 804 S.W.2d 687 (Tex.Civ.App.— Texarkana 1957, no writ). That case supports relator’s position and is closely in point on the facts, since it concerns a writ of prohibition to prevent a trial judge from acting in a case in which he was alleged to be disqualified. In principle, however, we are unable to distinguish it from Kirby and the other cases above cited. The Texarkana court, while conceding that it had no jurisdiction to issue a writ of mandamus, granted the same ultimate relief by a writ of prohibition. In support of a supposed common-law authority to issue writs of prohibition, the court cited City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663 (1924). In that opinion, the Supreme Court states that the constitution and statutes confer on the courts of civil appeals “ample power to issue the ancient common-law writ of prohibition, a power exercised by appellate courts from time immemorial.” The opinion does not, however, define the scope of that power, since the Supreme Court holds only that it has no appellate jurisdiction to review a decision of the court of civil appeals in the exercise of original jurisdiction. The case which the Supreme Court declined to review was one involving the protection of the jurisdiction of the court of civil appeals against a subsequent suit that would have interfered with enforcement of an earlier judgment affirmed by the appellate court. City of Palestine v. City of Houston, 262 S.W. 215 (Tex.Civ.App.—Texarkana 1924, writ dism’d). In view of the later pronouncement by the Supreme Court in the Kirby case, we conclude that our jurisdiction to issue such writs is limited to the cases specified in article 1823.

Relator argues that Turner v. Chandler is sound from the point of view of judicial economy, and points out that she has no remedy in the Supreme Court because that court has no jurisdiction to issue a writ of mandamus or prohibition against the judge of a probate court. This argument, though appealing, is one more properly to be addressed to the legislature than to the courts.

The motion for leave to file is overruled.


text:
    Carl HARRISON et al., Appellants, v. DALLAS COURT REPORTING COLLEGE, INC., Appellee.
    No. 20093.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 19, 1979.

      Randy L. Roberts, H. Ron White & Associates, Dallas, for appellants.
    Robert P. Palmer, Crouch & McClain, Dallas, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   AKIN, Justice.

On this writ of error from a default judgment rendered against him, appellant Harrison asserts two points of error: (1) The judgment is void because the appellee failed to serve process in accordance with Tex.R. Civ.P. 106 and, thus, the trial court failed to acquire personal jurisdiction over him. (2) No evidence exists in the record to support the award of damages. We agree with appellant on both points of error and, accordingly reverse the default judgment and remand for trial on the merits.

With respect to service of process, plaintiff attempted to acquire personal jurisdiction over defendant by substituted service under Tex.R.Civ.P. 106(c). Appellant argues that both types of personal service namely, personal delivery by the officer under subdivision (a) and mail delivery under subdivision (b) must be shown to be impractical before substituted service under Rule 106(c) is authorized. Thus, appellant contends, service under Rule 106(c) was improper and no personal jurisdiction was acquired over the defendant because plaintiff failed to show the impracticability of service by mail as well as service by personal delivery. We agree. Rule 106, as amended effective January 1, 1978, provides:

Unless it otherwise directs, the citation shall be served by (a) the officer delivering to each Defendant, in person, a true copy of the citation with the date of delivery endorsed thereon and with a copy of the petition attached thereto, or (b) the officer’s mailing by registered or certified mail, with delivery restricted to addressee only, a true copy of the citation and with a copy of the petition attached thereto.
Where it is impractical to secure service, as authorized by (a) or (b) as above directed, the court, upon motion, may authorize service (c) by the officer leaving a copy of the citation with petition attached, at the usual place of business of the party to be served . . . [Emphasis added]

As we read this rule, the supreme court has directed that citation shall be personally delivered by the officer under section (a) or shall be served by registered or certified mail under section (b). Both of these preferred modes of service are considered personal service. Plaintiff need not attempt both before procuring substituted service under Rule 106(c), but he must establish that both preferred methods are impractical before substituted service is authorized. Substituted service is only authorized where personal service cannot be obtained. Nichols v. Wheeler, 304 S.W.2d 229 (Tex.Civ.App.—Austin 1957, writ ref’d n. r. e.).

Plaintiff relies on the deputy sheriff’s affidavit to show that personal service is impractical. That affidavit states:

I have made several attempts to serve the defendant, Carl Harrison, at 6102 Lake June, Dallas, Dallas County, Texas, his usual place of business. I have been to this location many times but have been unable to contact defendant personally. I have left my business card, asking that he phone me, but have received no response. The attorney has been furnished this information and requests a 106 Affidavit to serve anyone over the age of 16 years at 6102 Lake June in Dallas.

This affidavit does not show how many attempts of service were made nor the times at which service was attempted. Furthermore, it does not show whether the card was slipped under a door or left with a responsible person. We hold that the information in this affidavit is insufficient to establish that personal service is impractical.

In order to establish that personal service is impractical an affidavit should preferably contain the name of the person to be served, that person’s residence and business addresses, and should describe the attempts at service at each address and the time of day that each attempt was made. We note that where personal service at both defendant’s residence and place of business is impractical, then service by registered or certified mail, restricted to addressee only may also be impractical, because if defendant is not present to be served, he may not be present to sign for the letter. This is a fact inference for the trial court to draw, but the information stated in the affidavit should be sufficient to support the inference that both methods of personal service are impractical.

Since the impracticality of personal service under subdivisions (a) and (b) was not established, service under Rule 106(c) was unauthorized and no personal jurisdiction over appellant was acquired. This is true because the Rules of Civil Procedure with respect to service of citation are mandatory and a failure to comply with them renders any attempted service void. Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust Co., 476 S.W.2d 97 (Tex.Civ.App.—Corpus Christi 1972, no writ). Thus, the judgment must be reversed.

We turn now to appellant’s second point that there is no evidence to support the trial judge’s award of damages. In order to fully comprehend appellant’s contention, a review of the facts is essential. Plaintiff sued defendant, a paving contractor, alleging a breach of an implied and express warranty that the paving of plaintiff’s parking area was “not of a good and merchantable quality” and was not “fit for the purposes for which it was intended.” Plaintiff’s complaint was that part of the parking area would retain water after a rain due to improper drainage and thus it was unusable. Plaintiff pleaded damages of $4,801.50, the sum which it had paid defendant for paving the parking lot, for breach of warranty, under Tex.Bus. & Comm.Code Ann. § 17.50(a)(2), (Vernon Supp. 1978-1979), and sought treble damages and reasonable attorney’s fees under § 17.50(b)(1) of the Deceptive Trade Practices Act.

Even though appellant defaulted, plaintiff was required to prove his damages and absent such proof, the default judgment cannot stand. Burrows v. Bowden, 564 S.W.2d 474 (Tex.Civ.App.—Corpus Christi 1978, no writ); Morgan Express v. Elizabeth Perkins, 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref’d). Evidence of damages requires either proof of the difference in market value of what was received and what was contracted for, or proof of reasonable costs of remedying the defect. Winandy Greenhouse Construction, Inc. v. Graham Wholesale Floral, Inc., 456 S.W.2d 470 (Tex.Civ.App.— Fort Worth 1970, no writ). Plaintiff neither pleaded nor proved either measure of damages. The Deceptive Trade Practices Act does not extend the measure of damages beyond the well settled rules of the common law. American Transfer and Storage Co. v. Brown, 584 S.W.2d 284, 297 (Tex.Civ.App.—Dallas 1979, no writ).

Appellant contends that there is no evidence of the current value of the parking lot and no evidence of the cost of remedying the defects. Thus, he reasons that there is no competent evidence in the record to support the amount of plaintiff’s damage under either the “difference in market value” or the “cost of repair” standards. We agree. The only evidence tendered by plaintiff at the default judgment hearing was the testimony of one of plaintiff’s directors and two photographs showing an asphalt parking lot with standing water.

Plaintiff’s director testified that defendant paved plaintiff’s parking area for $4,800, that the work was performed, that defendant invoiced plaintiff for $4,801.50, and that plaintiff paid the invoice. This witness also testified that the defendant guaranteed the job for one year, without specifying the nature of the guaranty or what was guaranteed. He also testified that plaintiff had a problem with the paving because after a rain “a large puddle of water” stood on the parking area preventing the use of “approximately ten to fifteen” parking spaces. No testimony was adduced as to how many automobiles could be accommodated on the paved parking area or for what period of time after a rain part of the parking area was unusable. He also testified that defendant twice attempted to correct the problem, but merely “moved the water puddle from one place to the other.” None of this testimony bears on the value of the paved parking area as a whole, but it does dispel an inference that the parking lot is worthless because some of the paved area is being used. We conclude that this evidence was not evidence of the cost of remedying the defects.

Neither do the two photographs establish plaintiff’s damages. The photographs showed several cars parked on a paved lot around a puddle of standing water. No foundation was laid as to the time and place these pictures were taken, so their evidentiary value is questionable. If they are in fact, pictures of the parking lot in question, they show that part of the parking lot was being used, so they do not support the inference that the parking lot was valueless. We do not know whether the pictures show the entire lot. Thus, no inference can be drawn as to the percentage of the lot that is unusable. Neither do these photographs bear on the value of the parking lot. Consequently, they are not evidence of the difference between the current value of the paved area and the value if the lot had been as warranted. Neither are they evidence from which a nonexpert can infer the cost of remedying the defective drainage, as urged by plaintiff, nor do they lead to the inference that the cost of repair will be at least equal to the contract price paid for the paving. Indeed, the inference that a drainage ditch would cure the problem is equally probable with the inference that the entire parking lot must be repaved. Since the pictures support both inferences equally, they present no evidence that the cost of repair will be at least as much as the contract price. Talley v. Bass-Jones Lumber Co., 173 S.W.2d 276, 279 (Tex.Civ.App.—Texarkana 1943, writ ref’d w. o. m.). We hold, therefore, that this evidence is incompetent to support an award of damages in the sum of $4,801.50 which the trial judge trebled to $14,404.50 in the judgment. Absent a judgment for actual damages, the award of attorney’s fees under the Deceptive Trade Practices Act cannot stand. Reiger v. DeWylf, 566 S.W.2d 47, 48 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.).

Reversed and remanded.

      . This opinion concerns only the sufficiency of evidence to support a damage award under § 17.50(b)(1). Plaintiff raised no claim for relief under § 17.50(b)(3) or (4).


author: STOREY, Justice.

text:
    AWAD TEXAS ENTERPRISES, INC., et al., Appellants, v. HOMART DEVELOPMENT CO., Appellee.
    No. 20056.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 24, 1979.

      Bill Walls, Dallas, for appellants.
    Dale E. McMahon, Dallas, for appellee.
    Before AKIN, ROBERTSON and STO-REY, JJ.
   STOREY, Justice.

The lessee, Awad Texas Enterprises, Inc., appeals from a judgment awarding the lessor, Homart Development Co., damages for breach of a commercial lease. Because the individual defendant, Amine Awad, guaranteed the corporation’s performance of the lease, his liability is dependent upon the corporate defendant’s liability under the lease. Despite its occupancy of the leased premises, lessee contends the lease never became effective because it was never delivered after its execution by the lessor, and because certain conditions precedent were not performed by the parties. We hold that delivery in this case was not essential to the validity of the lease, and that the “conditions” were promises which the trial court was authorized to find either were not made or were waived. Consequently, we affirm.

MOTION FOR LEAVE TO FILE APPELLEE’S BRIEF

Before discussing the merits of this case, we must consider appellee’s motion for leave to file its brief. Appellants urge that appellee’s brief, filed a few hours prior to oral argument, should not be considered by this court, because it was not filed within the time prescribed by Tex.R. Civ.P. 414. Appellants further urge that plaintiff failed to show good cause for the late filing, and that they have been materially harmed as a result. We reject these contentions. Rule 414 is discretionary in that this court “may” grant either party further time for filing briefs, and courts of civil appeals are given broad discretion regarding the time for the filing of briefs. Johnston Sales Co. v. Lizana, 508 S.W.2d 693, 695 (Tex.Civ.App.—San Antonio 1974, no writ). A strict showing of good cause is not necessary. Akers v. City of Grand Prairie, 572 S.W.2d 22,23 (Tex.Civ.App.—Dallas 1978, no writ). In this case, appellee cites “secretarial error” as reason for the untimely filing. Although this reason is tenuous, and we disapprove of this practice, we cannot say that appellants were harmed by the delay because we granted appellants ample time to prepare and file a reply brief. We permitted late filing of appellee’s brief because it may aid our disposition of this appeal.

MERITS

The case was tried before the court, and no findings of fact or conclusions of law were requested or filed. The trial court’s judgment, therefore, if supported by evidence, implies all necessary fact findings in its support. In reviewing the record to determine if evidence exists to support the judgment, we need consider only that evidence favorable to the judgment, disregarding all evidence or inferences to the contrary. Goodyear Tire and Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916, 918 (Tex.1978); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950) (quoting Austin v. Cochran, 2 S.W.2d 831, 832 (Tex.Com.App.1928, judgmt. adopted)).

Lessee first contends that the lease was never effective because the executed instrument was not delivered after it was signed by the lessor. The lease instrument was a lengthy printed form, titled “HOMART DEVELOPMENT CO. LEASE,” containing blanks for insertion of the lessee’s name, description of the premises, lease term, use and rentals. The agreement was negotiated on behalf of the lessee by Robert Welch, its president, and signed by him on September 20, 1973. At the time of signing, a telephone call was made by lessor’s agent to lessor’s home office in Chicago in the presence of Welch, and approval was given to the terms of the lease. It is conceded, however, that the lease was not to become effective until signed by lessor’s representative at its home office. While the date of execution by lessor’s home office is not shown in the record, it was signed and returned to its agent either before or during lessee’s occupancy of the premises. Lessor’s agent testified without contradiction that he attempted to make delivery of the signed lease during the period of lessee’s occupancy of the premises but was advised by an employee of the lessee that Welch was the only person authorized to accept delivery.

While it is the general rule that delivery of a written contract is essential to its validity, delivery may not be required if the instrument itself is silent on the question and the parties by their acts demonstrate a contrary intent. Delivery may be proved by acts or words showing that the parties intended the contract to become effective, and the question of delivery is a mixed one of law and fact to be determined by the trier of fact. Scroggins v. Roper, 548 S.W.2d 779, 780 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.). See also City of Fort Worth v. Barlow, 313 S.W.2d 906, 915 (Tex.Civ.App.—Port Worth 1958, writ ref’d n.r.e.). Manual delivery is not essential to validity. See Henry v. Phillips, 105 Tex. 459, 151 S.W. 533, 536 (1912); DeGrassi v. DeGrassi, 533 S.W.2d 81, 85-6 (Tex.Civ.App.—Amarillo 1976, writ ref’d n.r.e.). We hold, in this case, that delivery is immaterial because the parties treated the lease as being in effect upon execution by the lessee. The lessee paid the rent for the first month and occupied the premises on October 5, 1973, and continued to occupy the leased area until some time in November 1973, when it abandoned the premises and refused to pay further rents. We conclude that these undisputed facts support an implied finding that the parties did not intend delivery of the lease to be essential to its validity. Scroggins, 548 S.W.2d at 779-80.

Lessee further contends that the parties’ failure to perform certain conditions prevented the lease from becoming enforceable. These conditions, according to lessee, were as follows: the failure of lessor’s home office to approve the lease, lessor’s failure to submit it to lessee’s lawyer for approval and lessee’s failure to furnish plaintiff a financial statement.

The only testimony tendered by lessee was that of Amine Awad, its principal shareholder and guarantor of the lease. It is unclear from the record whether Awad was present during negotiations immediately preceding the signing of the lease by Welch and the verbal approval of its terms by lessor’s home office. He testified that he “understood” that there would be no lease agreement unless he furnished a personal financial statement to lessor’s home office. He further testified that he saw lessor’s agent some time prior to signing the lease and told him that unless his attorney first approved the lease, it would not be binding. In later testimony, however, Awad stated that he had not personally talked to lessor’s agent but had overheard Welch tell the agent that the lease must be approved by lessee’s attorney. As previously noted, the record is clear that lessor’s home office representative signed the lease prior to or during lessee’s occupancy. The facts concerning the financial statement and the attorney’s approval, which lessee contends on appeal to be conditions precedent, were disputed in the evidence and the written lease agreement contains no reference to them. Under these facts, the trial court was authorized to consider these to be promises rather than conditions and to find, as its judgment implies, that even if made, they either were not intended to be essential to the validity of the agreement or were waived by both parties. Where the intent of the parties is doubtful, an agreement will be interpreted as creating a covenant rather than a condition, and whether a certain provision is a condition rather than a promise must be gathered from the contract as a whole and from the intent of the parties. Where there is doubt, a provision must be construed as a promise rather than a condition. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976); Sirtex Oil Industries, Inc. v. Erigan, 403 S.W.2d 784, 787 (Tex.1966); Henshaw, et al. v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566, 570 (1949). Further, these provisions asserted by lessee were alleged in its pleadings to be representations rather than conditions. To contend for the first time on appeal that they were conditions is improper, because this would be an attempt to change the theory upon which the case was presented in the trial court. Simmons and Simmons Construction Company, Inc. v. Rea, 155 Tex. 353, 286 S.W.2d 415, 417 (1955).

Judgment affirmed.


author: HALL, Justice.

text:
    Joe Charles HALIBURTON, Appellant, v. Woodrow Wilson RILEY, Appellee.
    No. 6117.
    Court of Civil Appeals of Texas, Waco.
    Oct. 25, 1979.
    Walter S. Smith, Jr., Haley, Fulbright, Winniford, Bice & Davis, Waco, for appellant.
    Charles A. Youts, McClintock, Herring & Youts, Waco, for appellee.
   HALL, Justice.

This is a suit for damages to an automobile sustained in its collision with another motor vehicle. This is the second suit stemming from the accident. The first suit, filed by appellee Riley against appellant Haliburton, ended in a voluntary dismissal “with prejudice” by Riley. Thereafter, Ha-liburton filed the present suit against Riley. It was abated on Riley’s motion. Halibur-ton brought this appeal. We reverse.

The record establishes that on January 16, 1977, an automobile operated by Hali-burton and a pickup truck operated by Riley were involved in a collision in the City of Waco. On October 6, 1977, Riley filed suit against Haliburton in the 19th Judicial District Court of McLennan County, Texas, for his damages arising from the accident. On November 28, 1977, Haliburton answered with a general denial. On December 9, 1977, Riley filed a motion to dismiss the suit “with prejudice” stating as his only ground therefor that “he no longer wishes to prosecute this case.” On December 9, 1977, the motion was granted, and judgment was rendered dismissing Riley’s suit with prejudice.

On October 13,1978, Haliburton filed the instant suit against Riley in the 170th Judicial District Court of McLennan County, Texas, for recovery of his damages arising from the collision. On October 19, 1978, Riley filed a plea in abatement to Halibur-ton’s suit, pleading the prior suit and its dismissal, alleging that “this exact same matter, between these exact same parties, has already been litigated” in the prior cause, and asserting that “said cause of action has been dismissed with prejudice as to either party refiling the same.” After a hearing before the court without a jury, the plea in abatement was sustained.

The order granting Riley’s motion to dismiss the prior suit recited as its only basis that “said motion is well taken.” Evidence was adduced on the hearing of the plea in abatement in the present suit which supports an implied finding that Riley’s motion to dismiss his suit with prejudice and the termination of his suit on that basis were agreed to orally by Haliburton’s attorney prior to the filing of the motion, but there was no evidence that the motion or the judgment of dismissal were based upon an oral or written settlement of Riley’s suit or upon a settlement stipulated into the record of the prior suit, and there was no evidence showing why the suit was dismissed with prejudice. Haliburton’s attorney testified that although he consented to the dismissal in a telephone conversation with Riley’s attorney, there was no agreement “that all the dispute between the parties would be settled in that matter.” He said, “I knew that he had some property damage and that there might be a subrogation claim or some claim on that and I had no control over that whatsoever. I had no agreement relative to any claim that Mr. Haliburton might have.”

Ordinarily, the dismissal of a suit is not an adjudication of the issues in the case; “it merely places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought.” Crofts v. Court of Civil Appeals (Tex.1962) 362 S.W.2d 101, 104. Accordingly, in Cass County v. Rambo, 135 Tex. 476, 143 S.W.2d 916, 920 (1940), it was held that dismissal pursuant to an agreement between the plaintiff and defendant amounting only to an agreement to dismiss, and not a compromise and settlement of the case on its merits, was not res judicata as to a subsequent action by the plaintiff on the same claim.

Additionally, under the provisions of Rule 97, Vernon’s Tex.Rules Civ.Proc., the dismissal of Riley’s suit would not bar Hali-burton’s claim even if the dismissal had been based upon a compromise and settlement of Riley’s claim. The pertinent part of Rule 97 is paragraph (a), which provides as follows:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; provided, however, that a judgment based upon a settlement or compromise of a claim of one party to the transaction or occurrence prior to a disposition on the merits shall not operate as a bar to the continuation or assertion of the claims of any other party to the transaction or occurrence unless the latter has consented in writing that said judgment shall operate as a bar.

Haliburton’s claim was a compulsory counterclaim to Riley’s suit within the terms of the rule, but even if the dismissal of Riley’s suit had been based upon a settlement of his claim the judgment would not bar Hali-burton’s suit because Haliburton has not “consented in writing that said judgment shall operate as a bar” as required by the rule.

Although there is case law to the effect that a voluntary dismissal of a complaint “with prejudice” operates as an adjudication on the merits, it is said that most such cases “are rested on the ground that the judgment was in fact on the merits, rather than on the ground that it is entered ‘with prejudice,’ ” and that other cases “are concerned with dismissals by consent or stipulation of the parties after compromise and settlement of the suit where the dismissal is intended to operate as a retraxit and end the litigation”; and that the weight of authority supports the proposition that the effect of the judgment as res judicata “is not enlarged by a provision purporting to make the judgment ‘with prejudice.’ ” 149 A.L.R. 627 (1944). See also, Stubbs v. Patterson Dental Laboratories, 573 S.W.2d 274, 276 (Tex.Civ.App.—Eastland 1978, no writ).

In the light of the foregoing authorities, we do not believe that the judgment dismissing Riley’s suit “with prejudice” operates as a bar to Haliburton’s suit under the record, which shows only that Haliburton orally agreed with Riley to that action.

The judgment is reversed, and this cause is remanded for trial.


author: MOORE, Justice.

text:
    Lea BENSON, Appellant, v. Estelle M. FOX, Appellee.
    No. 1276.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 25, 1979.

      W. Emerson Stone, Jr., Stone & Stone, Jacksonville, for appellant.
    Larry R. Sinclair, Cox, Holcomb & Sinclair, Rusk, for appellee.
   MOORE, Justice.

This is a partition suit. In 1976, Mrs. Estelle Fox, appellee, and her sister, Mrs. Lea Benson, appellant, purchased a vacant lot in the city of Rusk, Texas. Each paid one half of the purchase price of the lot, but title was taken in Mrs. Benson’s name only. Mrs. Fox moved her mobile home on the lot, and shortly thereafter Mrs. Benson moved her mobile home on the lot. In time, petty disputes led to their total estrangement. As a result, Mrs. Fox brought suit, requesting the court to: (1) find a resulting trust in her favor; (2) award her an undivided one-half interest in the lot; and (3) partition the lot under Rule 756 et seq. of the Texas Rules of Civil Procedure. In her answer, Mrs. Benson admitted that Mrs. Fox owned an undivided one-half interest in the lot and that she held title in trust for her. Mrs. Benson, however, resisted the suit for partition on the grounds that the parties had entered into an agreement that the property would not be partitioned until after the death of the survivor, and prayed for a declaratory judgment to that effect. Trial was before the court without a jury. The trial court, without appointing commissioners to make the partition as required by Rule 761, entered a judgment awarding Mrs. Fox the north one half and Mrs. Benson the south one half of the lot. Thereafter appellant, Mrs. Benson, duly perfected this appeal.

We affirm in part and reverse and remand in part.

The record reveals that the lot in question is bounded on the west by Daniel Street and runs along the street at a distance of 119 feet. It is approximately 126 feet in depth. When Mrs. Fox moved her mobile home on the lot, she placed it near the center of the lot parallel to the street. Later, when Mrs. Benson moved her mobile home on the lot, she placed it in front of and parallel to Mrs. Fox’s, leaving a distance between them of only five feet. At that time the parties intended to construct a passageway between the two homes. Mrs. Benson later constructed a carport and a driveway on the south edge of the lot.

In order to comply with the partition judgment rendered by the court, each party would have been required to move their mobile homes. Also, because both homes were served by the same utility lines, it would have been necessary for each party to construct additional water, sewer, and electrical lines.

According to the undisputed testimony of Mrs. Benson there was ample space on either side of her home in which Mrs. Fox could move her home if placed perpendicular to the street. Mrs. Benson testified that she was opposed to the partition because of the expense involved in moving her home and reconstructing the utility lines. She further testified that she was opposed to the partition because she and her sister had agreed that the lot would not be partitioned until the death of the survivor. Mrs. Fox denied making any such agreement. She testified that she had received an estimate from a moving contractor agreeing to move both homes for the sum of $1,500.00 and agreeing to reconstruct the utility lines for the sum of $465.00.

Appellant, Lea Benson, seeks a reversal of the partition judgment by two points of error. In her first point she contends that the trial court erred in partitioning the lot without appointing commissioners to make the partition as required by Rule 761. Under her second point she contends that the trial court erred in partitioning the lot because under the evidence the parties should have been held to have impliedly agreed that the lot would not be partitioned until the death of the survivor. Appellant’s second point will be discussed first.

Although the general rule states that the right to partition is absolute, this rule was never intended to interfere with contracts between cotenants modifying or limiting such right. An express agreement not to partition will be honored by the courts and an agreement against partitioning will be implied, when the granting of such relief would destroy the estate sought to be partitioned. Lichtenstein v. Lichtenstein Building Corp., 442 S.W.2d 765, 769 (Tex.Civ.App.—Corpus Christi 1969, no writ), citing Warner v. Winn, 191 S.W.2d 747 (Tex.Civ.App.—San Antonio 1945, writ ref’d n. r. e.). If by contract the parties impliedly agreed not to partition, then the party who sought a partition will be es-topped to assert such a right. Odstrcil v. McGlaun, 230 S.W.2d 353, 354-55 (Tex.Civ. App.—Eastland 1950, no writ).

The record is before us without findings of fact and conclusions of law. Although the court made several findings in the judgment, the court made no findings on appellant’s contention that the parties agreed not to partition the lot. Therefore, in support of the judgment, we must presume that the trial court concluded that appellant failed to establish by a preponderance of the evidence the existence of either an express or implied agreement not to partition. In other words, it must be presumed that the court made a negative finding on such issue. Under these circumstances, appellant must argue and demonstrate that the evidence shows, as a matter of law, that the parties expressly or impliedly agreed not to partition the lot. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Prunty v. Post Oak Bank, 493 S.W.2d 645, 646-47 (Tex.Civ.App.— Houston [14th Dist.] 1973, writ ref’d n. r. e.); Smith v. Safeway Stores, Inc., 433 S.W.2d 217, 218-19 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r. e.); see also Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).

Appellant makes no contention that the evidence establishes, as a matter of law, that the parties entered into an express agreement not to partition the lot. It is her contention that the acts and conduct of the parties, when taken together with the other facts and circumstances, establish as a matter of law an implied agreement not to partition the lot. She argues that the conduct of the parties, in placing the mobile homes in the center of the lot in close proximity to one another and in constructing the utility lines so that each line would serve both homes, shows, as a matter of law that the parties impliedly agreed that the lot would not be partitioned. Alternatively, she argues that the judgment would have the effect of destroying the estate sought to be partitioned. In our view, the facts relied on by appellant fails to establish that the parties impliedly agreed, as a matter of law, not to partition the lot. Although the evidence shows that it would be expensive to move the homes, there is no testimony by any witness that the partition decreed by the court would destroy the estate sought to be partitioned. Appellant’s second point is overruled.

In her first point, appellant complains of the action by the trial court in decreeing a partition without appointing commissioners to make the partition as required by Rule 761. We have concluded that this contention must be sustained.

The rule last mentioned superceded Article 6087; however, the statute and the rule are identical. Rule 761 provides in part that if the court concludes that the property is susceptible of partition,

“then the court for that part of such property held to be susceptible of partition shall enter a decree directing the partition of such real estate, and shall appoint three or more competent and disinterested persons as commissioners to make such partition in accordance with such decree and the law, a majority of which commissioners may act.” (Emphasis ours.)

The law makes it the duty of the court, before entering a decree of partition, to determine whether the property is susceptible of partition. It is evident that Rule 761 employs the word “partition” in a restricted sense as synonymous with the phrase “partition in kind.” Skipping v. Skipping, 166 S.W.2d 164, 166 (Tex.Civ.App.—Eastland 1942, writ ref’d w. o. m.). Where the trial court finds that the property is susceptible to partition in kind and such finding is supported by the evidence, the appointment of commissioners to make the partition is mandatory. Bouquet v. Belk, 376 S.W.2d 361, 362 (Tex.Civ.App.— San Antonio 1964, no writ); Skipping v. Skipping, supra. The failure of the court to appoint commissioners in accordance with Rule 761 constitutes reversible error. Bouquet v. Belk, supra.

In the instant case, the trial court found that the lot in question was susceptible of partition in kind. Appellant brings no point of error challenging such finding on the ground that there is no evidence to support it. In view of the unchallenged finding that the property was susceptible of partition in kind, it became the duty of the trial court to appoint commissioners to make the partition. Accordingly, that portion of the judgment in which the court awarded appellant the south one half and appellee the north one half of the lot must be reversed.

Appellee maintains that the appointment of commissioners was not necessary because the court had the power to make a partition under equitable principles, and therefore the judgment may be sustained on that basis. In support of her contention, appellee relies on the case of Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290 (1939). In Thomas, a certified question was presented in which the court had to determine whether the doctrine of equitable partition was applicable under the facts of the case. The doctrine of equitable partition, the court explained, arises when a cotenant has conveyed specific portions of the land to third parties. It allows the court to make a partition so as to protect the vendee’s interest in the part of the land conveyed to him to the extent that it can be done without prejudice to the other cotenants. Under the facts presented the court merely held that the doctrine of equitable partition was not applicable. Since the present case does not involve an equitable partition, the decision therefore is distinguishable on the facts and is not controlling.

Appellant relies, however, on the following statement made by the court in the course of its opinion:

“A partition suit, therefore, under the statute is not strictly a proceeding at law, for it is governed by the rules of equity in all things not expressly provided for in the statute. Furthermore, procedure under the statute is not obligatory. The court may administer relief upon the principles of equity without the aid of the statute.”

Appellant construes the above language to mean that the trial court in a partition suit is authorized to exercise its discretion to make a partition either under its equitable power or by appointing commissioners to make the partition. We do not believe the court’s pronouncement is subject to such an interpretation. As we construe the statement, the court merely explained that had the facts in the case established that the doctrine of equitable partition was applicable, the court could have partitioned the property without the aid of commissioners.

Rule 776, which superceded Article 6106, provides that no provision of the rules relating to partition is to preclude partition in any other manner authorized by the rules of equity. As pointed out in Thomas it has long been the law in this state that where the doctrine of equitable partition is applicable, the trial court may partition the property without the aid of commissioners. Other cases have stated that where a partition in kind plainly cannot be made, the court is not required to go through the idle form of appointing commissioners, but may effect a partition by ordering the property sold and dividing the proceeds. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620, 629 (1935); Kalteyer v. Wipff, 92 Tex. 673, 52 S.W. 63, 68 (1899). Our research reveals that the courts have uniformly followed the practice of appointing commissioners in accordance with the statute or rules, except in situations where the appointment of commissioners was found to be wholly inadequate to meet the exigencies of the controversy. In our opinion the latter situation does not exist in the present case.

This brings us to the question of what disposition should be made of the appeal since the error in failing to appoint commissioners affects only a portion of the matter in controversy.

Rule 434 now provides:

. . if it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error . .

It is without dispute that appellant holds an undivided one-half interest in the lot in trust for Mrs. Fox. We have sustained the trial court’s implied finding that no agreement existed between the parties that the lot would not be partitioned.

We have also sustained the trial court’s finding that the lot was susceptible of partition in kind. Thus, all issues raised by the pleadings in the action for partition have been tried and determined. In a partition suit two judgments are rendered. The first decree determines: the share or interest of each of the joint owners or claimants; all questions of law or equity affecting the title; and appoints commissioners and gives them directions as may be necessary and appropriate. Tex.R.Civ.P. 760, 761. The second decree approves the report of the commissioners and allocates to the respective parties their separate shares or tracts. Tex.R.Civ.P. 769. The rights and matters determined in the first decree are final, and it is appealable as a final judgment. Mansfield v. Davenport, 362 S.W.2d 912 (Tex.Civ.App.—San Antonio 1962, writ ref’d n. r. e.); Marmion v. Wells, 246 S.W.2d 704, 705-06 (Tex.Civ.App.—San Antonio 1952, writ ref’d).

In the instant case all issues that were the basis of the partition decree have been determined. It is only the manner in which the partition decree was put into effect that is erroneous. There is no reason to require the parties to retry the separable issues in the case that have been correctly litigated and determined. Young v. Hicks, 559 S.W.2d 343 (Tex.1977). Therefore, pursuant to Rule 434, that portion of the judgment awarding appellant and appellee the south and north one half of the lot, respectively, will be reversed and remanded so that the court will be authorized to appoint and instruct commissioners and complete the partition as required by Rules 761-71. In all other respects the judgment is affirmed.

Affirmed in part and reversed and remanded in part.

SUMMERS, C. J., not sitting.

      . All references to rules are to the Texas Rules of Civil Procedure; ail references to statutes are to Texas Revised Civil Statutes Annotated.


text:
    Rose MORELAND, Appellant, v. Carl MORELAND, Appellee.
    No. 20115.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 26, 1979.
    Rehearing Denied Nov. 21, 1979.

      George C. Roland, Jr., McKinney, for appellant.
    Tom O’Connell, Plano, for appellee.
    Before AKIN, STOREY and HUM-PHREYS, JJ.
   AKIN, Justice.

This is an appeal from an order denying appellant an increase in child support for the parties’ two minor sons. Because the evidence is undisputed that a material change of circumstances occurred from the date of the divorce decree setting child support and the date on which appellant’s motion to increase support was filed, we hold that the trial judge abused his discretion in refusing to increase support in accordance with the evidence. Accordingly, we reverse the order denying an increase and remand for further proceedings.

The parties were divorced on January 19, 1973, and appellant was awarded custody of the parties’ three minor children. By agreement of the parties, approved by the court in its judgment, child support was set at $83 per month for each child. On October 19, 1978, appellant filed a motion to increase the amount of child support for the parties’ two remaining minor sons, one of whom was thirteen years of age and the other sixteen. On January 11,1979, a hearing was had on the motion and on February 26, 1979, the trial judge rendered his order denying an increase in child support. In this decree, the judge found that the circumstances of the children and the parties had not materially changed since rendition of the original divorce decree and, accordingly, denied an increase. The mother appealed.

Tex.Fam.Code Ann. § 14.08(c)(1) & (2) (Vernon Supp.1978-79) provides that child support may be increased upon a showing that the circumstances between the time of the prior support order and the time a change is sought have materially changed so as to affect the best interest of the children. Labowitz v. Labowitz, 542 S.W.2d 922, 925 (Tex.Civ.App.—Dallas 1976, no writ). The purpose of this requirement is to prevent vexatious litigation of such matters as custody and support. As we held in Bergerac v. Maloney, 556 S.W.2d 586 (Tex.Civ.App.—Dallas 1977, no writ), a movant is required to adduce evidence of the circumstances of the children and parties at the time the prior decree was rendered and of the circumstances at the time the prior order is sought to be modified. From this evidence, the trial judge is able to ascertain whether there has indeed been a substantial change justifying modification of the prior order.

In the present case, the evidence adduced was that at the time of divorce in 1973, appellant had a residential building business, which after the divorce but prior to this motion went into bankruptcy. Appellant now works part time for the Plano Housing authority and has but one hundred and forty-seven dollars a month as take-home pay. She works but part time because she must drive the youngest son to Dallas daily to attend a special school for children with special learning disabilities. At the time of divorce, this child attended public school in Plano and his learning problem was unknown. Additionally, in support of her motion, appellant testified that at the time of divorce, school lunches were thirty-five cents but had now risen to over one dollar. She also testified that the cost of the children’s clothes had trebled since the divorce in 1973, and that she needed the support raised from $83 per child to $150 per child, if appellee would pay the boys medical expenses, which appellee is willing to do.

The appellee’s salary has increased from $1,000 per month at divorce to $1,590 per month at the date of the hearing. Additionally, appellee owns an interest in a Dallas night club. The appellee also testified that due to inflation that $83 in 1973 would not be the equivalent of $83 in purchasing power in 1979. Indeed, even the appellee testified that an increase in his monthly child support payments would be both reasonable and in the children’s best interest and that he was willing to pay more if so ordered. He was unable to state, however, how much would be a reasonable increase.

We hold that under these compelling facts that the appellant established by undisputed evidence a material change of circumstances justifying a need for increased child support payments. Thus, an increase in support is in the children’s best interest, and the child support should have been increased. Under these circumstances, we hold that the trial judge abused his discretion in refusing to increase child support payments. Accordingly, the order denying the increase is reversed and this cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: HUMPHREYS, Justice.

text:
    W_H_, Appellant, v. Marjorie S. MOORE, Supervisor for Social Service Unit 083, Texas Department of Human Resources, Appellee.
    No. 20088.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 29, 1979.
    Richard A. Beacom, Jr., Greenville, for appellant.
    Frederick C. Shelton, Jr., Greenville, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

A mother appeals from an order terminating her parental rights to two children. The court based termination on findings, under Tex.Fam.Code Ann. § 15.02(1)(D) and (E) (Vernon Supp.1978-79), that the mother knowingly placed or allowed the children to remain in dangerous surroundings, and engaged in conduct or left the children with others who engaged in conduct which endangered the children, and the findings under section 15.02(2) that termination was in the best interest of the children. The mother contends that because the court’s findings as recited in the decree and also in the conclusions of law, which we consider findings of fact, are in the alternative, they are not specific findings as required by the code and that there is no evidence that the mother neglected, abused or allowed others to abuse her children. We agree with her first contention and, pursuant to Tex.R.Civ.P. 434, direct the trial judge to make specific findings under section 15.02(1)(D) and (E) so that we can determine the merits of the appeal.

The mother argues that the decree of termination makes no positive findings which allow the mother to know with certainty what facts the trial court found against her so she can properly respond on appeal. More specifically, she complains that the court’s decree found that the mother had knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical and emotional well-being of the children, and had engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. She concludes, therefore, that she is unable to ascertain which of the alternative findings the court made. In support of this contention, she cites In the Interest of S— H— , 548 S.W.2d 804 (Tex.Civ.App.—Amarillo 1977, no writ) in which that court, after reversing on another ground, stated that findings in the alternative are not positive findings that either of the alternatives occurred.

The decree in that case was similar to the one before us in that the findings under section 15.02(1)(D) and (E) in the judgment were in the alternative. The court directed the trial court on remand to make findings and conclusions in a form “to allow the appealing party to know with certainty which facts the trial court found against it so as to properly present its case on appeal.” 548 S.W.2d at 806. We agree with the Amarillo Court of Civil Appeals and hold that the alternative findings in the trial court’s judgment are not positive findings as required by Tex.Fam.Code Ann. § 15.02.

Appellee argues that the alternative findings in the judgment are not error because after judgment the trial judge made findings of fact and conclusions of law pursuant to Tex.R.Civ.P. 296. We cannot agree because the conclusions of law based on section 15.02(1)(D) and (E), which are actually findings of fact, McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016, 1020 (1950), are likewise in the alternative and are not a finding of either alternative. The judge did, in his findings under rule 296, make one finding from which an inference may be drawn as to the alternative the judge intended to find. The court found:

It is clear from the medical testimony that the children had been abused over the two week period leading up to the October 6, 1978, incident. It is clear also from the testimony that Ms. Houston had left the children in the care of her boyfriend Tommy Wayne Davis during this period while she was working. The record is clear that signs of abuse on the children were visible to Ms. Houston and she failed to take the minimum of care and precaution to protect her children.

We hold, however, that a finding from which it is necessary to draw an inference is insufficient and cannot cure the alternative findings in the order. Section 15.02 contemplates that the judge make clear and positive findings in the language of the statute before entering an order of termination.

We do not remand for a new trial because Tex.R.Civ.P. 434 allows this court to direct the trial court to correct errors if “the erroneous action or failure or refusal of the trial judge to act shall prevent the proper presentation of a cause to the Court of Civil Appeals, and be such as may be corrected by the judge of said trial court . . . .” Here, we are unable to determine which of the alternative findings set forth in the judgment was the intended finding of the judge. Since the judge can correct this error, we direct him to enter specific findings under section 15.02(1)(D) and (E), based on the evidence before him at trial, and transmit these findings to this court on or before November 21,1979. See A_ Y_ v. State, 554 S.W.2d 805, 807-08 (Tex.Civ.App.—San Antonio 1977, no writ).