author: AKIN, Justice. ROBERTSON, Justice,

text:
    Margaret Ann LACK, Appellant, v. Nora Gibson LACK, Appellee.
    No. 19644.
    Court of Civil Appeals of Texas, Dallas.
    July 6, 1979.
    Rehearing Denied Aug. 8, 1979.

      Virgil E. Rogers, Gillis, Rogers & Taylor, Dallas, for appellant.
    Sonja Staron, Office of Herbert L. Hooks, Dallas, for appellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   AKIN, Justice.

This appeal from a summary judgment concerns a controversy between appellant, the divorced wife of a deceased fireman, and appellee, the widow of the fireman, over death benefits payable from the City of Dallas Pension Plan. The widow contends that she is entitled to the fireman’s death benefits under Tex.Rev.Civ. Stat.Ann. art. 6243a § 10 (Vernon Supp. 1977 — 1978). The divorced wife argues, however, that according to Texas community property law, she is entitled to a pro rata share of the death benefits resulting from the contributions of community funds made to the pension plan during their marriage. The trial court denied the divorced wife’s community property claim and gave all of the proceeds to the widow under article 6243a section 10. We hold that although part of the contributions to the plan were made with community funds of the fireman and his ex-wife, the right of the fireman or his survivors to receive benefits under the plan depends on the provisions of the statute. Section 10 of article 6243a designates that the widow, rather than the ex-wife, receive one-half of the benefits. Consequently, the ex-wife is not entitled to a pro rata share of the death benefits even though a pro rata share of the death benefits would otherwise be considered community property. Accordingly, we affirm.

The facts are stipulated. Ralph Lack made contributions from his salary to the Pension Plan for Policemen and Firemen of the City of Dallas, Texas, from January 16, 1953, to the time of his death in December 1975. Additionally, the City of Dallas made contributions to the pension plan on his behalf during his employment. On August 19, 1954, Ralph Lack married appellant Margaret Lack. They were divorced on February 11, 1965, but no mention was made of the pension plan in the divorce decree. Subsequent to October 26, 1970, Ralph Lack entered into a common law marriage with appellee Nora Lack, and she was his lawful wife when he died in the line of duty in December 1975.

Appellant Margaret Lack sued the Pension Fund and appellee Nora Lack to establish her community property interest in the death benefits. Appellant claims that she has a community interest in the death benefits because during her marriage to Ralph Lack, community funds in the form of salary deductions from his paycheck were paid into the pension fund, as well as contributions made on his behalf by the city as part of his compensation. She argues that at the time of her divorce, she possessed a community property interest in any future payments from the pension fund, regardless of whether the form of the payments were pension benefits or death benefits.

In support of her position, appellant cites Tex.Fam.Code Ann. § 5.01 (Vernon 1975), and Texas Supreme Court decisions such as Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976), and Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977), which hold that on division of property at divorce, benefits flowing from pension plans are community property to the extent of contributions made during marriage. The ex-wife contends that death benefits are likewise community property since there is no real distinction between pension benefits and death benefits because they are computed alike and emanate from the same source. Appellant claims, therefore, that the conversion of pension benefits into death benefits, as a result of Ralph Lack’s death, does not deprive her of her community property interest in death benefit payments from the pension fund. In support of this position, she also cites Simmons v. Simmons, 568 S.W.2d 169 (Tex.Civ. App.—Dallas 1978, writ dism’d), and Herring v. Blakeley, 385 S.W.2d 843 (Tex.1976). In Simmons, this court held that disability benefits based upon contractual rights that accrued during marriage and payable to the husband after divorce were community property. According to appellant, the death benefits here are no different from the disability benefits in Simmons because both are contractual forms of compensation paid by the employer for job related injuries. Appellant’s reliance on Herring stems from language in that decision which stated that “[cjommunity rights may exist in interests that cannot be reduced to possession, such as remainder or reversion rights.” 385 S.W.2d at 847. The death benefits, appellant urges, are similar to remainder rights earned by Ralph Lack. She claims that her interest in the death benefits is one-half of the total of the number of months she was married to Ralph Lack divided by the total number of months in which he made contributions to the pension plan times the dollar amount of each monthly death benefit if, as, and when it is paid.

Conversely, the widow argues that pension or disability benefits are not in issue here but only death benefits. She asserts that article 6243a section 10 expressly mandates that death benefits are payable only to the widow, and that the statute makes no provision for ex-wives. Tex.Rev. Civ.Stat.Ann. art. 6243a § 10 (Vernon Supp. 1977-1978) reads as follows:

In case of the death before or after retirement of any member of the fire department, police department, or fire alarm operators’ department of any city or town within the provisions of this Act, from disease contracted or injury received and who at the time of his death or retirement was a member of either of said departments and a contributor to the said fund, leaving a widow, child or children under seventeen (17) years of age, the widow and such child or children shall be entitled to receive from the said fund an amount not to exceed one-half (½) of the base pay per month as defined in Section IB hereof, plus one-half (½) of the service money granted to members under the provisions of any state law or any city charter of any city within the provisions of this Act; one-half (½) of the widow’s amount in the aggregate shall go to the children under seventeen (17) years of age, and the balance of one-half (½) for the widow.
Upon the remarriage of the widow, either statutory or common, law, or the marriage of any child granted such pension, the pension shall cease. [Emphasis added.]

Appellee insists that the above provision that pension rights cease on remarriage supports her contention that only unmarried widows and not ex-wives are entitled to receive death benefits because the legislature’s sole purpose in creating death benefits was to provide financial assistance for a deceased employee’s widow, as long as she remains single, and for his minor children, so long as they remain minors.

Since the Dallas pension plan tracks the statutory distribution scheme contained in article 6243a section 10, our question is whether the language of this statute precludes the ex-wife from recovering a pro rata part of these proceeds as her community property. We hold that since the pension rights in question are wholly statutory, the legislature could designate the beneficiaries to whom death benefits are payable, and it has done so by limiting such benefits to widows so long as they remain unmarried and to children so long as they remain unmarried and are under eighteen years of age. Under the clear language of article 6243a section 10, if no survivor qualifies as a statutory beneficiary, then no benefits are payable, and if a survivor qualifies but subsequently marries, the benefits cease. Any inchoate interest of a spouse of a participant never ripens into a community property interest until occurrence of the contingency on which that interest depends. In this case, that contingency has not occurred and can never occur, insofar as any interest of appellant is concerned. Since the right to death benefits can never be established until the death of the participant, such benefits are not property acquired during the marriage, and, therefore, are not community property. The legislature’s control over these benefits was approved in City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009, 1013 (1937). In Trammell, our supreme court held that the right of a pensioner to receive monthly payments from a statutory pension fund, after retirement and after his rights in the fund had accrued, was subordinate to the right of the legislature to abolish the pension system or to diminish the accrued benefits of a pensioner under the plan. It logically follows that if the share of a participant in a statutory pension plan may be reduced or divested by the legislature, the legislature may also divest the inchoate contingent interest of an ex-wife. See Cook v. Employees Retirement System of Texas, 514 S.W.2d 329, 331 (Tex.Civ.App.—Texarkana 1974, writ ref’d n. r. e.) (children over eighteen years of age but under twenty-one could be divested of their right to benefits when the age of majority was reduced to eighteen).

The rationale of City of Dallas v. Trammell was that an employee who elected to participate in a statutory pension plan did so “in contemplation of the reserved right of the Legislature to amend or to repeal the laws on which the pension systems are founded.” 101 S.W.2d at 1012. This particular language, as well as the holding in Trammell, was quoted with approval by our supreme court in Board of Managers of the Harris County Hospital District v. Pension Board of the Pension System for the City of Houston, 449 S.W.2d 33, 37 (Tex.1969). In accordance with these decisions, we hold that whatever inchoate community interest the spouse may have in the retirement fund, that interest is contingent on her surviving the participant as his widow; consequently, she has no claim to death benefits after divorce.

Our holding here is limited to death benefits under a pension plan authorized by article 6243a. We express no opinion with respect to the question of whether the ex-wife would have been entitled to a share in the pension benefits if her ex-husband had retired rather than died. Nor do we determine whether a spouse’s contingent interest in the fund may be considered in a division of the community estate on divorce. Furthermore, our holding here should not be construed as extending to death benefits under private pension plans. See Lee v. Lee, 112 Tex. 392, 247 S.W. 828, 832-33 (1923). See also Grost v. Grost, 561 S.W.2d 223, 226 (Tex.Civ.App.—Tyler 1977, writ dism’d) (death benefits under a private pension plan divisible upon divorce).

The same conclusion on the question of the spouse’s interest in an employee’s state authorized pension plan has been reached by the Supreme Court of California. Benson v. City of Los Angeles, 60 Cal.2d 355, 361-62, 33 Cal.Rptr. 257, 260, 384 P.2d 649, 652 (1963). In Benson, the court held that the wife’s interest in a widow’s pension in a municipal pension plan may never vest in her in the absence of the happening of the contingency upon which payment of the widow’s pension depends. See also Waite v. Waite, 6 Cal.3d 461, 99 Cal.Rptr. 325, 492 P.2d 13 (1972), overruled on other grounds. In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976). Benson and Waite have been criticized by both courts and commentators. In In re Marriage of Peterson, 41 Cal.App.3d 642, 655, 115 Cal.Rptr. 184, 194 (Ct.App.1974), overruled on other grounds, In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976), an intermediate court stated that Benson is not fair to ex-wives. Also, Reppy, Community And Separate Interests In Pensions and Social Security Benefits After Marriage of Brown and Erisa, 25 U.C.L.A.L.Rev. 417, 443-82 (1978), contains an exhaustive and illuminating study of the California terminable interest rule announced in Benson and Waite. Notwithstanding these criticisms, we conclude that our solution of the problem is the only one consistent with Texas statutes and decisions.

Affirmed.

ROBERTSON, Justice,

dissenting.

I respectfully dissent for two reasons. First, the majority opinion, in refusing to hold that the death benefits are community property, ignores the rule of community property law that spouses share in property earned during marriage. Second, the majority’s reliance on City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009 (1937), is misplaced and does not support its holding.

The majority opinion is confusing because it does not classify the death benefits according to traditional notions of community property law. Tex.Fam.Code Ann. § 5.01 (Vernon 1975) states that property must either be separate or community. Although the majority states that these benefits are not community property, it fails to classify them as separate property and, apparently, it has created a new classification of property not defined in the Texas Family Code. Texas case law, however, compels me to conclude that these death benefits are community property.

As the majority opinion points out, both Lee v. Lee, 112 Tex. 392, 247 S.W. 828 (1923), and Grost v. Grost, 561 S.W.2d 223 (Tex.Civ.App.—Tyler 1977, writ dism’d), held that death benefits earned during marriage and paid as part of the employee’s compensation were community property. I am unable to understand why the majority states that the death benefits here, but for the statute, would also be community property. The death benefits were earned in part during Ralph Lack’s marriage to appellant and were purchased with community funds through salary deductions from Ralph Lack’s paycheck and, therefore, are community property. In addition, Collida v. Collida, 546 S.W.2d 708, 709 (Tex.Civ.App.—Beaumont 1977, writ dism’d), explicitly held that pension payments from a statutory pension plan were community property. In discussing a divorced wife’s right to receive pension payments directly from the pension plan, the court stated that her “interest in the fund is community property". 546 S.W.2d at 710. Likewise, appellant’s “interest in the fund ”, i. e., death benefits, is also community property.

The majority opinion states that appellant’s community property rights in the death benefits never vested and, therefore, she has not been divested of anything. This argument ignores a crucial premise of community property law, that is, benefits earned during marriage belong to the community estate. Tex.Const. art. XVI, sec. 15. As the court in Perez v. Perez, 576 S.W.2d 447, 449 (Tex.Civ.App.—San Antonio), rev’d on other grounds, 22 Tex.Sup.Ct.J. 553 (Sept. 25,1979) stated:

The argument that “contingent” or “inchoate” rights cannot be considered as part of the assets of the community estate until all events have occurred which irrevocably fix the liability of the government to pay the benefits was rejected by the Supreme Court of Texas in Cearley v. Cearley, 544 S.W.2d 661, 663-664 (Tex.1976). In rejecting the contention that only earned or vested rights can be considered community assets, the Supreme Court said: “We hold that such rights, prior to accrual and maturity, constitute a contingent interest in property and a community asset subject to consideration along with other property in the division of the estate of the parties Id. at 666.
The decisive factor is that, whatever the nature of the benefits involved, the right to receive them has been earned, in whole or in part, by rendition of services during coverture. To the extent that the right rests on services rendered during cover-ture, that right is the fruit of what must be considered as community effort.

Clearly, the right to receive these benefits was earned during marriage and constituted a community asset.

In addition, the majority has misconstrued the holding in City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009 (1937). That case does not concern the problem of whether the legislature could divest a wife of her community property rights in a statutory pension fund. The Supreme Court held that the legislature had the right to diminish the amount of the pension payable or to completely abolish the pension fund. Contrary to the majority’s interpretation, the court also held that the right to participate in such fund could not be abolished. The court stated:

[A]n employee . . . acquires by virtue of his contract with the city . the right to participate in the pension fund. ... It may be conceded that this right to participate in the pension fund, so long as there is such a fund, is one which cannot be destroyed. [Emphasis added] 101 S.W.2d at 1011.

Trammell, contrary to the majority’s position, does not stand for the proposition that the legislature has the right to cut off the community property rights of an ex-wife. Nowhere in the statute itself or in the ease law of this state can authority be found for the proposition that the legislature, in enacting article 6243a, intended to deprive a wife of her community property rights in a statutory pension plan. The majority attempts to ascribe an intent to the legislature that simply does not exist. Appellant made significant contributions of community property to the pension fund, but the majority holds that the legislature intended that all of appellant’s contributions go to appellee. I simply cannot agree that the legislature intended such an inequitable result.

The majority’s explanation for its holding is analogous to the explanation given for the holding in Benson v. City of Los Angeles, 60 Cal.2d 355, 33 Cal.Rptr. 257, 384 P.2d 649 (1963). Under circumstances similar to those in this case, the California Supreme Court denied statutory pension benefits to an ex-wife of a fireman. The court reasoned that the legislature intended to exclude ex-wives from pension benefits in order to retain flexibility in the pension plan. 60 Cal.2d at 361-62, 33 Cal.Rptr. at 260, 384 P.2d at 652. In criticizing the holding in Benson, one commentator has stated that the reasoning underlying that decision and other California cases that have followed it is unsound because the California statutory pension plans show:

the absence of any evidence of legislative intent to deprive the wife of her community property rights both in the statutory language and in the legislative history documents. It is, purely and simply, a product of the supreme court’s fancy. The mere provision for a widow’s pension does not mean the legislature intended to take the first wife’s property when she was not the widow. More likely, the legislature, assuming the “widow” would be the same spouse whose community funds have been used to acquire rights in the program, intended to expand her rights rather than cut off payments on her husband’s death. There is just no suggestion that by providing for a widow’s pension, the legislature had in mind the case where fifty percent of a second wife’s benefits were purchased with the first wife’s property .

Reppy, Community and Separate Interests in Pensions and Social Security Benefits After Marriage of Brown and Erisa, 25 U.C.L.A.L.Rev. 417, 468 (1978). I believe that the majority has made the same mistake in construing the statutory pension plan here as Professor Reppy states the California courts have made.

Appellant was married to Ralph Lack for almost one-half of the period that he made contributions to the pension plan. It is simply inequitable that appellant receive nothing here, not even her pro rata share of the contributions made with community funds. At the very least, appellant should be entitled to reimbursement for her share of the community funds paid into the pension plan during her marriage to Ralph Lack.

In conclusion, the simple solution to this controversy is to apply the principles of community property law to the death benefits. To do so would merely entitle appellant to what is rightfully hers. Since appellant was married to Ralph Lack for a total of 127 months, and he made contributions to the plan for 276 months, appellant, as long as she remains single, should be entitled to one-half of 127/276 times the actual amount of death benefits payable.

      . Article 6243a § 10 was enacted pursuant to Tex.Const. art. Ill, sec. 51 — f.

      . See Collide v. Collide, 546 S.W.2d 708 (Tex.Civ.App.—Beaumont 1977, writ dism’d) (pen-si on benefits from statutory pension plan divisible upon divorce).


source: Caselaw Access Project

author: REYNOLDS, Chief Justice.

license: Public Domain

text:
    MOSER COMPANY and Robert H. Thomas, Appellants, v. AWALT INDUSTRIAL PROPERTIES, INC., Appellee.
    No. 9028.
    Court of Civil Appeals of Texas, Amarillo.
    July 11, 1979.

      Mark Mueller, Dallas, for appellants.
    Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case, C. Steven Matlock, Dallas, for appellee.
   REYNOLDS, Chief Justice.

We hold, on this record, that a broker-negotiated lease of a separated warehouse space in a building was terminated, rather than modified and renewed, by the owner-tenant’s substitution of a different separated space in the building on different terms. Accordingly, we affirm the trial court’s instruction of a verdict against the broker in this action to recover renewal commissions on rentals payable under a subsequent lease of the substituted property.

Await Industrial Properties, Inc., owns a tract of land containing six lots numbered 31 through 36 and located on Pittsburg Street in Dallas, Texas. Although a single building has been constructed on the land, it is divided into three warehouse spaces separated by steel columns covered with five-eighths inch sheetrock. Each warehouse space covers two lots, has a separate street address and is leased independently of the others. For clarity, lots 31 and 32 located at 134-136 Pittsburg Street will be referred to as Space I, lots 33 and 34 located at 140-142 Pittsburg Street will be referred to as Space II, and lots 35 and 36 located at 146-148 Pittsburg Street will be referred to as Space III.

Moser Company, acting through its agent, Robert H. Thomas, negotiated a written lease for Await with Arthur J. Bea-com & Co. The lease covered Space III, which was to be used as Beacom ⅛ office and warehouse, and was for a term of five years beginning 1 January 1969 with monthly rentals of $785. The 1969 lease included the proviso that Await would pay to Moser Company, in consideration for negotiation of the lease, a monthly commission of six percent of the monthly rental payable “for the primary term of this lease and including any renewals of this lease.” The lease did not contain a renewal option.

In December of 1970, Beacom subleased Space I from another tenant for the period 1 January 1971 to 1 October 1974. In 1971 Beacom wanted to exchange Space III for Space II, which was being leased by the Clancy Corporation. Beacom and Clancy, after reaching an agreement as to the exchange, sought authorization from Await. J. P. Await, Sr., then president of Await Industrial Properties, Inc., approved the exchange through a series of letters which, with omissions of the formal parts and designations of Spaces substituted for street addresses, read, in part:

August 9, 1971
Dear Mr. Clancy:
It is my understanding that you and Mr. Arthur Beacom have both agreed on making an exchange of spaces in our building at Pittsburg Street as follows: You are to give to the Beacom Company [Space II] and exchange [it] for the area, which the Beacom Company now occupies, at [Space III]. Your lease for [Space III] is to be for the same period of time and at the same rent you are now paying for [Space II], which is $863.00 per month. The terms of your existing lease at [Space II], will be the same for [Space III],
******
J. P. Await, Sr.
August 9, 1971
Dear Mr. Beacom:
******
From your letter and from my brief telephone conversation with Mr. Tom Clancy, it is my understanding that you have both agreed on making an exchange of spaces in our building at Pittsburg Street as follows:
You are to give up the area which you occupy at [Space III] and exchange it for the area which Mr. Clancy now occupies at [Space II]. Your lease for [Space II] is to be for the same period of time and at the same rent you are now paying for [Space III], which is $785.00 per month. ******
J. P. Await, Sr.
August 9, 1971
Dear Mr. Beacom:
Assuming that you will move into [Space II], which [is] now occupied by Mr. Clancy, your lease will extend to January 1st, 1974, as per your existing lease at [Space III]. It is my understanding you will want to extend your lease at [Space II] for an additional nine months to October 1st, 1974 to coincide with the maturing date of your . . . [sublease.
This is to advise you that we will agree to this extension of your lease, provided you will agree to pay a rental of $900.00 per month for the additional nine months. This is less than sixty cents (60$) per square foot and I believe you know it’s below present day rentals.
* * * * * *
J. P. Await, Sr.
August 11, 1971
Dear Mr. Await:
In reply to your letter of August 9th, the change of spaces as you outline them is according to our understanding.
* * * * * *
Arthur J. Beacom
August 11, 1971
Dear Mr. Await:
Thank you very much for your second letter of August 9th, wherein you agree to extend the lease on [Space II] for an additional nine months, to coincide with the maturing date of our [sub]Lease.
We will agree to pay the increased rental of $900 per month for the last nine months, as suggested by you.
* * * * * *
Arthur J. Beacom

During 1973, Thomas talked with Await, suggesting a price in the event of a renewal. At Awalt’s direction, Thomas wrote Beacom to try to get an offer, but Beacom responded that it was too early to talk about a renewal.

In March of 1974, Mr. Await wrote Mr. Beacom, reminding him that the leases were about to mature and asking him to indicate whether he wished to “renewing [his] lease now on the basis of 85$ per square foot . . . A new lease was executed on 15 April 1974 covering Space I and Space II for a term of seven and one-half years beginning 1 October 1974 at a monthly rental of $2,193. Neither Moser Company nor Thomas was involved in the negotiation or execution of this lease, and no provision was included for a broker’s commission.

Although the primary term of the 1969 lease covering Space III expired 31 December 1973, Await paid Moser Company the regular commission called for by that lease until October, 1974. Thomas testified that the commissions were paid, albeit not on the increased rental amount, by agreement with Mr. Await, who emphasized that the commissions paid after 1 January 1974 were paid by mistake.

After Await ceased paying commissions, Moser Company and Robert H. Thomas brought this suit. They sought renewal commissions of six percent of one-half of the rentals for both Space I and Space II during the seven and one-half years term of the 1974 lease, together with attorney’s fees, on the theory that the 1974 lease was a renewal of the 1969 lease as modified by the parties. Await answered and defended on the ground that the 1969 lease was not renewed and that no commissions are payable under the 1974 lease because there is no supportive written contract or memorandum therefor as required by Tex.Rev.Civ. Stat.Ann. art. 6573a, § 20(b) (Vernon Supp. 1978-1979).

At a jury trial, a verdict was instructed in favor of Await. From the take-nothing judgment rendered thereon, Moser Company and Thomas have perfected this appeal, contending they evidenced a prima facie entitlement to broker’s commissions.

To recover a real estate broker’s commission, one must meet the requirements of Section 20(b) of the statute, which provides that:

An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by him to sign it.

A lease transaction is a “sale” within the contemplation of this statute. Bachman Center Corporation v. Sale, 359 S.W.2d 290, 293 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). The agreement or memorandum which is necessary for recovery must meet four requirements: (1) it must be in writing and must be signed by the person to be charged with the commission; (2) it must promise that a definite commission will be paid, or must refer to a written commission schedule; (3) it must state the name of the broker to whom the commission is to be paid; and (4) it must, either itself or by reference to some other existing writing, identify with reasonable certainty the land to be conveyed. Knight v. Hicks, 505 S.W.2d 638, 642 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.).

Indisputably, the 1969 lease met all of the statutory requirements for the recovery of broker’s commissions. Equally undisputed is that the 1974 lease did not, unless it can be said, as Moser Company and Thomas insist, that it was a renewal of the 1969 lease which had been modified through the series of letters quoted above.

Parties having the power to make a contract have the power to modify it. Rhoads Drilling Co. v. Allred, 123 Tex. 229, 70 S.W.2d 576, 583 (1934). However, because modification is a change or alteration which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject matter intact, the power to modify does not imply a power to substitute a thing entirely different or confer the power to destroy. Webb v. Finger Contract Supply Company, 447 S.W.2d 906, 908 (Tex.1969).

Contrastingly, the parties may discharge themselves from their respective duties under a contract by a mutual agreement to rescind their contract. Usually, the rescission is expressed in the form of an offer by one and an acceptance by the other, although the agreement of rescission can be made tacitly. Texas Gas Utilities Company v. Barrett, 460 S.W.2d 409, 414 (Tex. 1970). In the same vein, a lease agreement may be terminated by the mutual consent of the lessor and lessee. Barret v. Heartfield, 140 S.W.2d 942, 944 (Tex.Civ.App.—Beaumont 1940, writ ref’d). Moreover, absent a specifically expressed termination, a lease is terminated by operation of law when the tenant surrenders the leased premises and the owner relets the premises for his own benefit. Dean v. Lacey, 437 S.W.2d 433, 438 (Tex.Civ.App.—Beaumont 1969, no writ); South Falls Corporation v. Kalkstein, 349 F.2d 378, 384 (5th Cir. 1965).

Given the operation of these principles, the letters which Moser Company and Thomas assert merely modify the 1969 lease amount to much more than a mere change or alteration in the details of that lease. By their letters, Await and Beacom, agreed, at least tacitly, to a rescission of the 1969 lease, for the letters, together with the actions taken pursuant thereto, destroyed the validity of the 1969 lease by substituting for its paramount subject matter an entirely different property, terms and rentals without agreeing, as Await and Clancy contemporaneously agreed, to retain the other terms from their prior lease. And even though the letters do not expressly state a termination of the 1969 lease, the substitutions agreed and acted upon without the retention of any of the terms of the 1969 lease is so inconsistent with a modification as to require the conclusion of a termination of the 1969 lease by operation of law. Accord, Dearborn Stove Co. v. Caples, 149 Tex. 563, 236 S.W.2d 486, 489 (1951). Manifesting the termination was Beacom’s surrender of Space III, the premises covered by the 1969 lease, and Awalt’s reletting of the same for its own benefit.

There being a termination of the 1969 lease, there could be no renewal of its provision for broker’s commissions. This conclusion forecloses all of the claims advanced for recovery of any broker’s commissions under the 1974 lease.

The trial court’s judgment is affirmed.

COUNTISS, J., not participating.


author: AKIN, Justice.

text:
    In re Byron Eugene MILLER, Relator.
    No. 20084.
    Court of Civil Appeals of Texas, Dallas.
    July 11, 1979.
    James F. Newth, Dallas, for appellant.
    Scott A. Shearer, Dallas, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   AKIN, Justice.

On this writ of habeas corpus our question is whether a judge may commit a father to jail for lateness in making a monthly child support payment, where the petitioner’s motion for contempt alleges that the relator has not yet made his monthly payment. We hold that the judge cannot hold relator in contempt and commit him to jail in such a situation because the motion fails to comport with due process insofar as notice is concerned. Accordingly, the order is void, the writ is granted, and the relator is discharged.

The judgment of divorce required a payment of $150 per month on the first day of each month. Since the divorce judgment was rendered on August 8, 1978, the first payment was due on September 1, 1978. On September 15, 1978, the petitioner filed her motion for contempt, alleging “Although he has had an opportunity to do so, Byron Eugene Miller has yet to pay child support for the month of September 1978.” [Emphasis added] On September 22, 1978, the relator paid the child support payment due on September 1,1978. Nevertheless, at a hearing on the motion on May 31, 1979, the judge committed relator to jail for five days for failing “to timely pay his September 1, 1978, child support payment.”

Relator argues that he has been denied due process of law because the motion for contempt merely notified him that he may be adjudged in contempt if he failed to pay the September 1978 child support payment. In this respect, he contends that the show cause order served upon him did not inform him that he may be held in contempt for failing to pay the child support payment due September 1, 1978, on or before that date. He asserts that this is particularly true here because he paid the September 1978 payment seven days after the motion was filed. Thus, he claims that he was not prepared to show cause why he had not paid on September 1, 1978.

We agree with relator that he was denied due process. Since constructive contempt proceedings may result in incarceration, they should conform as nearly as practical to criminal proceedings. Ex Parte White, 149 Tex. 155, 229 S.W.2d 1002, 1004 (1950). Indeed, constructive contempt proceedings have been referred to as “quasi-criminal in nature” because they may result in a deprivation of liberty. Due process of law requires that the relator be given notice of the specific act or omission with which he is charged before a court can punish for contempt not committed in its presence. Ex Parte Edgerly, 441 S.W.2d 514, 516 (Tex.1969). Ex Parte Stanford, 557 S.W.2d 346, 348 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ).

Since the motion for contempt merely asserts that relator has yet to pay the September 1978 child support payment, the motion does not inform relator that the real complaint is that he did not make the September payment on time. Consequently, he was not given adequate notice of the specific complaint that resulted in his incarceration. If the petitioner had specifically set forth in her motion for contempt that the contemner had failed to “timely pay the September 1, 1978 child support payment”, then no question of due process would be presented; however, this is not the situation here. Since the relator was not afforded due process, the order holding him in contempt and confining him to jail is void. Accordingly, relator is discharged.


author: ROBERTSON, Justice.

text:
    LUBBOCK MANUFACTURING COMPANY, Appellant, v. INTERNATIONAL HARVESTER COMPANY and Fontaine Truck Equipment Co., Appellees.
    No. 19942.
    Court of Civil Appeals of Texas, Dallas.
    July 11, 1979.
    Rehearing Denied Aug. 16, 1979.

      Damon Ball, Groce, Locke & Hebdon, San Antonio, for appellant.
    B. Jeff Crane, Jr., B. Lee Ware, Jr., Houston, W. Richard Davis, Strasburger & Price, Dallas, Lewin Plunkett, Wiley, Plunkett, Gibson & Allen, San Antonio, for appellees.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   ROBERTSON, Justice.

This is an appeal from a summary judgment denying appellant Lubbock Manufacturing Company the right of contribution under Tex.Rev.Civ.Stat.Ann. art. 2212 (Vernon 1971) from appellee International Harvester Company. Lubbock sought to establish that International Harvester was a joint tortfeasor along with Lubbock in connection with an accident in which a butane truck overturned and exploded. We affirm in part, reverse and remand in part, and reverse and dismiss in part.

On April 29,1975, a tractor-trailer combination owned and operated by Surtigas S. A. overturned near Eagle Pass, Texas. The tank trailer loaded with butane and propane, exploded, and fifty people were injured, seventeen of whom later died. A products liability suit was brought by the injured parties in Maverick County against International Harvester Company, Lubbock Manufacturing Company, Fontaine Truck Equipment Company, Laredo Diesel, Inc., Modern Machine Shop, Inc., Surtigas S. A., and the personal representative of the deceased driver. The tank trailer portion of the vehicle was designed and manufactured by Lubbock. Fontaine designed and manufactured the “fifth wheel”, a device used to connect the tractor to the trailer. International Harvester purchased the fifth wheel from Fontaine, sold it to Laredo Diesel, which in turn, sold it to Surtigas S. A. Surtigas then had Modern Machine Shop mount the fifth wheel.

International Harvester filed a plea of privilege to be sued in Dallas County. This plea was sustained and all suits, cross-claims and counter-claims as to International Harvester were transferred to Dallas County from Maverick County. In addition, Laredo Diesel and Modern Machine Shop’s pleas of privilege were sustained and the actions as to these defendants, except for cross-claims and counter-claims involving International Harvester, were transferred to Webb County. The plaintiffs’ actions against the remaining four defendants were consolidated and venue changed to Val Verde County pursuant to Tex.R.Civ.P. 257-259.

After commencement of the Val Verde trial, the actions against Fontaine were severed, and the plaintiffs entered into “Mary Carter” settlement agreements with Fon-taine. Through these agreements, the plaintiffs released Fontaine, agreed to indemnify Fontaine against any further liability, and assigned to Fontaine an interest in each individual’s cause of action against any other party. Final judgments were entered in these severed actions based upon the “Mary Carter” agreements. The plaintiffs’ claims against Lubbock were disposed of in three different ways. Lubbock compromised and settled with eleven of the plaintiffs prior to the rendition of the jury verdict. In each settlement agreement, the plaintiffs released all claims against Lubbock and entered into agreed orders of dismissal with prejudice to Lubbock only. After the verdict, seventeen other injured plaintiffs were awarded judgments against Lubbock and fourteen of these judgments are currently on appeal. These judgments found both Lubbock and Fontaine strictly liable in tort to the plaintiffs. Pursuant to the doctrine in Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964), the court reduced the amount of each verdict by one-half. The other three cases were settled after judgment and these plaintiffs released their claims against Lubbock.

Both the injured plaintiffs and Lubbock, seeking contribution, pursued their suits against International Harvester which had been transferred to Dallas County. Fon-taine entered this suit in the posture of a third party defendant. The injured plaintiffs’ actions were severed and summary judgment was granted in favor of International Harvester. This judgment is now final since no appeal was taken. International Harvester and Fontaine filed separate motions for summary judgment against Lubbock with respect to Lubbock’s claims against International Harvester. The trial court granted both International Harvester and Fontaine’s motions that Lubbock take nothing on its cross-claim against Harvester, and Lubbock appeals.

Lubbock raises five arguments on appeal. First, Lubbock argues that the trial court erred in granting International Harvester’s motion for summary judgment because Lubbock is entitled to contribution pursuant to Tex.Rev.Civ.Stat.Ann. art. 2212 (Vernon 1971). Second, Lubbock contends that the trial court erred in holding that the Val Verde litigation barred Lubbock’s cross-claim against International Harvester for contribution and that the Val Verde court’s application of the Palestine Contractors Doctrine extinguished Harvester’s duty to pay contribution to Lubbock. Third, Lubbock finds error in the trial court’s rendition of summary judgment on the basis that International Harvester committed no independent act of negligence. Fourth, Lubbock argues that the trial court erred in overruling Lubbock’s motion for partial summary judgment. Lubbock’s last contention is that the trial court erred in granting Fontaine’s motion for summary judgment that Lubbock take nothing from International Harvester.

Lubbock contends that it is entitled to contribution from International Harvester pursuant to article 2212, which provides:

Any person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of or based on tort except in causes wherein the right of contribution or of indemnity or of recovery over, by and between the defendants is given by statute or exists under the common law, shall, upon payment of said judgment, have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment. If any of said persons co-defendant be insolvent, the recovery may be had in proportion as such defendant or defendants are not insolvent; and the right of recovery over against such insolvent defendant or defendants in judgment shall exist in favor of each defendant in judgment in proportion as he has been caused to pay by reason of such insolvency.

To come within the ambit of article 2212, certain prerequisites must be met. First, a tortfeasor must discharge the liability to plaintiff of the other tortfeasor. Callihan Interests, Inc. v. Duffield, 385 S.W.2d 586 (Tex.Civ.App.—Eastland 1964, writ ref’d); Traveler’s Insurance Co. v. United States, 283 F.Supp. 14 (S.D.Tex.1968). Second, a tortfeasor must be established as a judgment debtor through the rendition of a contested or agreed judgment. Lower Neches Valley Authority v. City of Beaumont, 392 S.W.2d 733 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e). Finally, a tortfeasor receives a contribution only if he has paid a disproportionate share of the plaintiffs’ damages. Gattegno v. The Parisian, 53 S.W.2d 1005 (Tex.Comm’n App. 1932, holding approved); Callihan Interests, Inc. v. Duffield, supra. The settled cases must be examined in light of these prerequisites to determine whether Lubbock can recover contribution.

The Settled Cases

Lubbock settled with the plaintiffs in fourteen cases. Each settlement was incorporated in an agreed dismissal order which was entered with prejudice. As a general rule, a judgment of dismissal entered by agreement of the parties pursuant to a compromise or settlement of a suit becomes a judgment on the merits and constitutes a final judgment. Stephenson v. Gaines, 298 S.W. 401 (Tex.Comm’n App. 1927, holding approved); Rhoades v. Prudential Leasing Corp., 413 S.W.2d 404, 407 (Tex.Civ.App.—Austin 1967, no writ). Accordingly, we hold that although these orders are final judgments, Lubbock is not entitled to contribution because the orders fail to extinguish any potential liability of International Harvester to the plaintiffs as required by Callihan, 385 S.W.2d at 587. Each agreed dismissal order releases Lubbock from any liability to the plaintiffs. In eight of the settled cases, the release states: “It is understood and agreed that this is a release of Lubbock Manufacturing Company, its officers, agents, and employees only. It is not a release of any claims or causes of action held by us [plaintiffs] against any other party . . . ” This clause specifically releases Lubbock but does not release any other claims held by the plaintiffs against other parties. Four of the settlement agreements contain the following language: “The receipt of which sums [paid by Lubbock] are hereby acknowledged . [plaintiffs] do hereby release, quit and forever discharge Lubbock Manufacturing Co. and its officers, agents and employees of and from any and all actions, causes of actions, claims and demands for damages . . . .” Lubbock is the only party named in this release and the general rule is that if a party is not named in a release, he is not released. McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971). Thus, none of these plaintiffs’ claims against International Harvester were released or extinguished in the settled cases.

Lubbock contends that Callihan Interest Inc. v. Duffield, 385 S.W.2d 586 (Tex.Civ.App.—Eastland 1964, writ ref’d) supports its position because in that case, the court held that an agreed judgment would satisfy the requirement of a judgment under article 2212. We disagree. In Callihan, the agreed judgment before the court contained a release by the plaintiffs of all their claims against a non-party joint tortfeasor. In Travelers Insurance Co. v. United States, 283 F.Supp. 14 (S.D.Tex.1968), the parties had entered into an agreed order of dismissal with prejudice and after a discussion of both Callihan and article 2212, the court held that these orders were final judgments for the purpose of article 2212. The court then set out the requirements of the statute and stated:

What the statute [article 2212] does require is that the agreement receive the sanction of the court and that a judgment be entered finally disposing of the original plaintiffs’ cause of action against the defendant and the alleged joint tort-feasor. A dismissal of the plaintiffs’ cause of action with prejudice upon a settlement agreement of the parties accomplishes this result. 283 F.Supp. at 30 [emphasis added].

Since the release agreements did not extinguish the original plaintiffs’ cause of action against International Harvester, these settled cases fail to meet the first prerequisite of article 2212. This is a logical result because the plaintiffs, after executing these releases, could still sue International Harvester and recover. To hold that Lubbock also has a cause of action for contribution against International Harvester would place International Harvester in the position of defending two actions and also paying two judgments, one for the plaintiffs’ damages and one for Lubbock’s claim for contribution. Thus, Lubbock is not entitled to contribution under article 2212 from International Harvester in any of the settled cases. See Comment: Contribution Among Joint Tortfeasors, 44 Tex.L.Rev. 333 (1966).

The Appealed Cases

Lubbock contends that the trial court erred in granting International Harvester’s motion for summary judgment as to the appealed cases. Lubbock argues that the ground for summary judgment as set out in International Harvester’s motion is not sufficient as a matter of law to form the basis for a summary judgment against Lubbock. In'its motion for summary judgment, International Harvester states that Fontaine manufactured the defective product, that International Harvester sold it, and, thus, International Harvester has a right of indemnity from Fontaine. By virtue of this indemnity relationship, International Harvester argues that its liability is derived from Fontaine’s liability to the plaintiffs and that International Harvester and Fon-taine should be viewed as one entity for the purposes of this suit. On this basis, International Harvester contends that Lubbock has received contribution from Fontaine by the application of the Palestine Contractor’s doctrine in the Val Verde litigation and that Lubbock is collaterally estopped from recovering contribution from International Harvester. By the same reasoning, International Harvester states that the Mary Carter agreements releasing Fontaine from liability also served to release International Harvester. All of these arguments are based on the premise that International Harvester’s liability is derivative from that of Fontaine because of the manufacturer-retailer and indemnitor-indemnitee relationship between them. This is the only ground presented in International Harvester’s motion for summary judgment and thus, it is the only ground that this court can consider in reviewing the judgment. Avinger v. Campbell, 499 S.W.2d 698, 702 (Tex.Civ.App.—Dallas), writ ref’d n. r. e., 505 S.W.2d 788 (Tex.1974); Castillo v. American States Insurance Co. of Texas, 550 S.W.2d 408, 409 (Tex.Civ.App.—Dallas 1977, no writ). Lubbock argues, however, that International Harvester’s liability is direct rather than derivative from Fon-taine. We agree with Lubbock.

Restatement (Second) of Torts § 402A (1965) states:

(1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold; (2) the rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Texas courts have followed section 402A in holding that strict liability in tort lies against the distributor as well as the manufacturer of goods. Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Pittsburg Coca-Cola Bottling Works of Pittsburg v. Ponder, 443 S.W.2d 546 (Tex.1969); Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967).

The rationale behind holding a retailer directly liable to the consumer is set out in comment C to section 402A. This comment states:

On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.

Any liability that International Harvester may have stems from the fact that it sold a defective product that caused the injuries to the plaintiffs and not from its manufacturer-retailer and indemnitor-indemnitee relationship with Fontaine. Since International Harvester’s liability is direct and independent from that of Fontaine, International Harvester cannot benefit from the Mary Carter agreements insofar as contribution among joint tortfeasors is concerned. Neither can it benefit from the application of the Palestine Contractor’s doctrine because its liability is independent from that of Fontaine. It follows that collateral estop-pel does not apply since one of the elements of collateral estoppel is that the parties must be the same or must be in privity with one another. Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex.1971). Since International Harvester’s liability is direct and not derivative of Fontaine’s liability, International Harvester was not a party or in privity with a party in the Val Verde litigation and collateral estoppel is not a bar to Lubbock’s claim for contribution. We hold, therefore, that Lubbock’s claim for contribution is not barred by the ground asserted in International Harvester’s motion for summary judgment and that as a matter of law, the trial court erred in granting summary judgment on that basis. Accordingly, we reverse and remand that portion of International Harvester’s summary judgment that purports to dispose of the appealed cases.

Fontaine’s Motion For Summary Judgment

Lubbock argues that Fontaine lacked standing to move for summary judgment for International Harvester. We agree. Tex.R.Civ.P. 166-A(b) states that any party against whom any claim is asserted may move for summary judgment. No claims against Fontaine are asserted in the Dallas County suit, and no other party has asserted any claim against it. Fontaine argues that by virtue of its indemnity relationship with International Harvester, International Harvester and Fontaine should be treated as one party and it asserts that it has no liability as a matter of law. This argument overlooks the fact that Fontaine is not actually a party to the present action, and, therefore, has no standing to move for summary judgment. Moreover, only if a judgment is entered against International Harvester could indemnity be sought against Fontaine. Thus, the only possible claim against Fontaine is a potential one, which has not been asserted in this suit. See generally Packer v. First Texas Savings Association of Dallas, 567 S.W.2d 574 (Tex.Civ.App.— Eastland 1978, writ ref’d n. r. e.); Cruz v. Guajardo, 502 S.W.2d 610 (Tex.Civ.App.—Corpus Christi 1973, no writ). We hold that the trial court erred in granting Fontaine's motion for summary judgment and, accordingly, reverse the judgment and dismiss Fontaine’s motion for lack of jurisdiction. See Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926); Hollar v. Jowers, 310 S.W.2d 721 (Tex.Civ.App.—Eastland 1958, writ ref’d n. r. e.); McFarling v. Lapham, 489 S.W.2d 435 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.); Wise v. Pena, 552 S.W.2d 196 (Tex.Civ.App.—Corpus Christi 1977, writ dism’d).

Accordingly, we affirm that portion of the summary judgment that disposes of the settled cases, reverse that portion of the judgment concerning the appealed cases, and reverse the summary judgment granted Fontaine and dismiss Fontaine’s action.

      . This case held that a covenant not to sue given to a settling joint tortfeasor precludes a plaintiff from recovering more than half the damages from the non-settling tortfeasor.

      . We have been unable to ascertain from the record what Fontaine’s status actually is in this action. Fontaine maintains in its motion for summary judgment and its brief that its status is similar to that of a third party defendant, although it has filed no pleading in this cause and no other party has claimed any relief against it.

      . The other two settlement agreements and releases were not brought up as part of the record. Since the burden of proof is on Lubbock Manufacturing Co. to show error, it was their duty to make these available. We assume, therefore, that the releases in these two cases are similar to those before us.


author: DICKENSON, Justice.

text:
    Bob TAMMEN et ux., Appellants, v. Tom PAGE et ux., Appellees.
    No. 5432.
    Court of Civil Appeals of Texas, Eastland.
    July 12, 1979.
    Rehearing Denied Aug. 9, 1979.

      T. L. Rees, Thompson, Rees & McKinney, Colorado City, George E. Gilkerson, Lubbock, for appellants.
    Patrick D. Barber, Colorado City, for ap-pellees.
   DICKENSON, Justice.

Tom Page and wife, Beverly Page, (Tenant) sued Bob Tammen and wife, Diane Tammen, (Landlord) over a dispute concerning Landlord’s failure to return Tenant’s security deposit. Landlord filed a cross-action for damages to the property. After a nonjury trial involving several witnesses and a stipulation that $350 would be a reasonable attorney’s fee for whoever was entitled to recover attorney’s fees, the trial court resolved most of the factual disputes in favor of Tenant. Judgment was rendered against Landlord for the statutory penalty of $100, treble damages of $75, and attorney’s fees. Landlord appeals. We affirm.

The trial judge made the following findings of fact:

1. After the Tenant vacated the premises where this lawsuit arose, the Tenant furnished the Landlord with a written copy of the Tenant’s forwarding address for purposes of security deposit refunding.
2. The security deposit was in the amount of $100.
3. The Landlord failed to return to the Tenant any of the security deposit and failed to provide a written description and itemized list of all charges, damages and deductions from the security deposit at any time.
4. That over and above the Landlords’ mere failure to provide the Tenant a written description of charges and damages to be deducted from the security deposit, credible evidence exists for this Court to find that the Landlord’s failure to do so was also done in bad faith, and this Court so finds. This finding of bad faith is based upon evidence adduced at the trial on the merits in addition to the prima facie evidence and the presumption arising from the Landlord’s failure to provide the written description and itemized list of deductions.
5. This Court finds that $75 was a reasonable sum to cover the cleaning of the residence and grounds in question and that $25 of the $100 security deposit was wrongfully withheld from the Tenant by the Landlord in bad faith.
6. That with the exception of a portion, in the amount of $75, of the cleaning charges referred to in Finding No. 5 above, the other charges and damages alleged in Landlords Cross-Action are not supported by credible evidence.
7. The Landlord impliedly waived the advance notice moving provision in the Landlord’s contract and no damages for lack of advance notice was shown by the Landlord.

Landlord has briefed eight points of error. The first two points argue that the trial court erred in finding Landlord in “bad faith” under Article 5236e, Tex.Rev.Civ. Stat.Ann. (Supp.1978) because (1) there is insufficient evidence to support such finding and (2) such finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. These points are overruled. The Landlord relies upon Wilson v. O’Connor, 555 S.W.2d 776 (Tex.Civ.App.-Dallas 1977, writ dism’d), in which the majority opinion states:

The crucial question on this appeal is what evidence is required to rebut the presumption of bad faith which arises if it is shown that the landlord did not return the deposit or furnish an itemized list of deductions within thirty days. Does “bad faith” mean simply that he intended not to refund the deposit within thirty days, or does it mean that he intended to deprive the tenant of the refund to which the tenant was entitled? We conclude that in this context “bad faith” implies an intention to deprive the tenant of the refund lawfully due.

We note that in Wilson v. O’Connor, supra, the appellate court noted that:

the trial court made no effort to decide the fact issue of whether appellant acted in bad faith in the sense that she dishonestly intended to retain the deposit.

In this case, the trial court specifically found that Landlord’s failure to provide Tenant a written description of charges and damages to be deducted from the security deposit was done in bad faith, stating:

This finding of bad faith is based upon evidence adduced at the trial on the merits in addition to the prima facie evidence and the presumption.

The record does contain evidence, and it is sufficient, to support the trial court’s finding of bad faith. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). As pointed out in Wilson v. O’Connor, supra, after rebutting evidence was introduced by Landlord, the “prima facie evidence” remained which would permit, but not compel, a fact finding of bad faith. While we might not have reached the same conclusion as the trial judge, we are not permitted to substitute our judgment for his. Commercial Union Assurance Company v. Foster, 379 S.W.2d 320 (Tex.1964). See also Fikes v. Tull, 580 S.W.2d 911 (Tex.Civ.App.-Amarillo 1979, no writ).

The next three points of error argue that the trial court erred in finding that $25 of the $100 security deposit was wrongfully withheld because (3) there is no evidence or (4) insufficient evidence to support such finding and (5) such finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. These points are overruled. Landlord argues that the trial court decided the matter by “picking out of the air of a figure” when there was no evidence that $75 was the expense incurred in cleaning the property or repairing the damages. Landlord cites Michaux v. Koebig, 555 S.W.2d 171 (Tex.Civ.App.-Austin 1977, no writ) for the statement that:

Since Article 5236e provides for award of attorney’s fees, it is penal in nature. Such statutory provisions allowing for collection of attorney’s fees are in derogation of the common law and must be subject to strict construction.

Even under a strict construction of the statute, the record compels us to hold that there is evidence which is legally and factually sufficient to support the trial court’s finding that $75 was a reasonable sum to cover the cleaning and that the other damages alleged by Landlord were not established. In re King’s Estate, supra. The trial judge was entrusted with the responsibility of deciding these disputed issues. He was the sole judge of the credibility of the witnesses and of the weight to be given their testimony. He could believe all, or merely a part, of the testimony of each of the witnesses. Landlord had the burden of proof on these defensive issues, and he failed to convince the fact finder. See Section 3(a) of Article 5236e, supra.

The last three points of error argue that the trial court erred in finding that Tenant furnished Landlord with a written copy of Tenant’s forwarding address for the purpose of security deposit refund because (6) there is no evidence or (7) insufficient evidence to support such finding and (8) such finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule these points.

Section 6(a) of Article 5236e, supra, provides that:

The tenant shall furnish the landlord with a written copy of the tenant’s forwarding address for purposes of security deposit refunding. A tenant’s right to security deposit refund and description of damages and charges is never forfeited for mere failure to furnish a forwarding address to the landlord. Notwithstanding any other provision of this Act, a landlord is not obligated to return the security deposit or furnish a written description of damages and charges until the tenant has furnished the forwarding address.

The record shows that shortly after Tenant vacated the premises, an oral request for refund of the security deposit was made. A few days later, Tenant’s attorney wrote a demand letter to Landlord which referred to Article 5236e, supra, and which directed that Tenant’s security deposit be mailed to the attorney’s office. Landlord admitted the receipt of this letter, but no reply was made to Tenant or to Tenant’s attorney. More than thirty days later this suit was filed.

Landlord insists that Tenant, not his agent or attorney, must personally furnish Tenant’s forwarding address to Landlord before the penalties of this statute can be imposed. We disagree. We hold that a tenant may furnish the written notice through an agent or attorney and that the “tenant’s forwarding address for purposes of security deposit refunding” can be the address of the tenant’s agent or attorney.

Landlord cites Miehaux v. Koebig, supra, and LaVoie v. Kaplan, 556 S.W.2d 641 (Tex.Civ.App.-Waco 1977, writ dism’d). Miehaux held that the printed address on a check given for rent is not sufficient compliance with Section 6(a), supra. LaVoie declined to rule on a tenant’s contention that orally giving the landlord’s secretary his forwarding address, watching it reduced to writing by the secretary, and then seeing that it was correctly transcribed, was substantial compliance with the statute.

Tenant cites Hogg v. Jaeckle, 561 S.W.2d 568 (Tex.Civ.App.-Tyler 1978, no writ), where five lessees of a rented house each made a $100 security deposit. One of the five tenants gave the landlord his address in writing for the return of all five deposits. The court held this notice sufficient for all five tenants to recover their. deposits plus the statutory penalties and attorney’s fees.

The judgment of the trial court is affirmed.


author: McKAY, Justice.

text:
    Nate RHODES, Appellant, v. CITY OF AUSTIN, Appellee.
    No. 1264.
    Court of Civil Appeals of Texas, Tyler.
    July 12, 1979.
    Rehearing Denied Aug. 2, 1979.

      Nate Rhodes, pro se.
    Jerry L. Harris, City Atty., Ernest A. Simon, Asst. City Atty., Austin, for appel-lee.
   McKAY, Justice.

This is an appeal from a summary judgment rendered in the trial court against appellant. The appellee City sued Nate Rhodes and David P. Bell, both individually and both doing business under the assumed name of Pleasuretime Beverages, for delinquent personal property ad valorem taxes, Rhodes for 1974 and Bell for 1975 and 1976. Rhodes, appellant here, filed a plea to the jurisdiction of the court in which he alleged that the City had filed a previous suit concerning the same subject matter, that Rhodes had filed his plea of privilege thereto, that the plea of privilege therein was granted because the City did not timely file a controverting affidavit, and the City entered a voluntary nonsuit therein to avoid transfer of the cause. Rhodes also filed a plea of privilege in the present case requesting transfer of the cause to Nueces County, and an answer containing several special exceptions and a general denial.

A hearing was had in the District Court on Rhodes’ plea of the jurisdiction and plea of privilege, resulting in an order by the court overruling both the plea to the jurisdiction and the plea of privilege. The City then filed its motion for summary judgment, and at the hearing on the motion Rhodes attempted to file an opposing affidavit which the trial court refused to consider. After the hearing the trial court granted the motion for summary judgment, awarding the City $746.93 as delinquent taxes, penalties and interest against Rhodes and $1,406.91 against Bell.

Rhodes alone brings this appeal and predicates it upon five points of error. The first two points complain of error in the trial court’s failure to grant appellant’s plea of privilege and plea to the jurisdiction. Appellant argues that since the City filed no controverting affidavit in the previous suit and later took a nonsuit prior to any ruling on the plea of privilege in that cause, the right to the change of venue was established and the trial court in this case should have transferred the cause to Nueces County. In this connection appellant argues that Article 7345b-!, is made a part of the general venue statute by the terms of subdivision 30 of Article 1995. The City does not contest the allegation that it had filed a previous suit concerning the same subject matter in which it failed to file a controverting plea to appellant’s plea of privilege and thereafter took a voluntary nonsuit, but replies that Article 7345b-l is a statute that itself controls venue of actions brought thereunder, that it is not one that is controlled by the provisions of Article 1995 and the exceptions thereto, and that therefore a plea of privilege will not lie thereunder.

There is authority that where the plaintiff has filed a previous suit, and the defendant has filed a plea of privilege which is not controverted by the plaintiff, and where thereafter the plaintiff takes a voluntary nonsuit as to that defendant, the issue of venue is settled. The legal result is the establishment of the situs for the trial of the cause of action as that asserted in the plea of privilege, as a matter of admission by the plaintiff. Southwestern Investment Company v. Gibson, 372 S.W.2d 754, 756 (Tex.Civ.App.—Fort Worth 1963, no writ); see also Cowan v. State, 356 S.W.2d 170, 172 (Tex.Civ.App.—Austin 1962, writ dism’d); Wilson v. Groos National Bank of San Antonio, 535 S.W.2d 374, 376 (Tex.Civ.App.—Tyler 1976, no writ). This is true, however, only where the question of venue can be put in issue by a plea of privilege.

In the instant case, the City brought its original suit in Travis County under the provisions of Article 7345b-l, which provides:

“All actions or suits for the collection of delinquent ad valorem taxes on either real or personal property due the State of Texas or any political subdivisions thereof, shall be brought in a court of competent jurisdiction in the County in which such taxes were levied.”

There is no dispute that the City’s action is one for which venue is provided by Article 7345b-l, nor that Travis County is the county in which the taxes at issue were levied. Appellant relies, in support of his plea of privilege, upon subdivision 30 of Article 1995, which provides:

“Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given,”

and upon cases in which the courts have held that special venue statutes are made a part of the general venue statute by the terms of subdivision 30. See, e.g., Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867, 868 (1937), and its progeny.

However, all separate statutes providing for venue are not controlled by the general venue statute. In Traders & General Insurance Co. v. Curby, 103 S.W.2d 398 (Tex.Civ.App.—Waco 1937, no writ), Justice Alexander stated at p. 399, “the venue in such [workmen’s , compensation] cases is controlled by the act itself and not by the provisions of Revised Statutes, art. 1995, and the many exceptions therein pro vided.” See also State v. Harry Cloud Transport, Inc., 505 S.W.2d 798 (Tex.1974); Cowan v. State, supra; Harrington v. State, 363 S.W.2d 321 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.); Scott v. United States Fidelity & Guaranty Co., 256 S.W.2d 860, 863 (Tex.Civ.App.—Amarillo 1953, no writ); Walker v. State, 251 S.W.2d 546-7 (Tex.Civ.App.—Eastland 1952, no writ). The question before us for decision, therefore, is whether Article 7345b-l is a “law authorizing or regulating [a] particular character of action” within the meaning of subdivision 30, Article 1995, so as to permit a plea of privilege to be filed by a nonresident defendant, or is an act by which venue is controlled by the statute itself and not by the provisions of Article 1995 and its exceptions. See Cowan v. State, supra, 356 S.W.2d at 177.

In the case of Gambill v. Town of Ponder, 494 S.W.2d 808 (Tex.1973), our Supreme Court used the discernible intent of the Legislature as the test for determining whether the provisions of a separate venue statute are to control over the general venue statute. See also Cowan v. State, supra. Applying that test to the instant case, we find that the clear legislative intent expressed in Article 7345b-l, is that the particular provisions of said article are to control over the general venue statute, Article 1995. Section 2 of the act, passed as Acts 1943, 48th Legislature, p. 191, Ch. 110, provides:

“The fact that there is now no plain provision of law permitting an action or suit for collection of delinquent ad valo-rem taxes on personal property to be maintained as against pleas of privilege by non-resident taxpayers in the County in which such taxes have been levied and in which such taxes are payable, and certain Courts of Appeals have held that such suits are- governed by the general rule of venue in civil actions and may be removed upon pleas of privilege to Counties other than those in which such taxes are payable, thereby requiring county and/or district officers to travel and transport official records to distant Counties in order to enforce payment of the legal dues, at great hardship, inconvenience and prohibitive expense to the Counties and units involved, thereby affecting the public revenue, creates an imperative public necessity and an emergency requiring the suspension of the Constitutional Rule requiring bills to be read on three several days, said Rule is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.”

Another basis upon which it has been held that a special venue statute itself controls venue and is not controlled by the general venue statute is that such a special statute actually determines jurisdiction and not merely venue.

“Statutes . . . authorizing special proceedings for the settlement of rights which exist wholly by virtue of statute rather than by virtue of the constitution or the common law, often fix the county wherein suit must be prosecuted, and such provisions are commonly treated as jurisdictional. Conceptually, however, any statute which lodges in the courts of a single county (named specifically or identified by a description applicable only to it) the exclusive power to try a certain type of case is jurisdictional, even though it be placed by the legislature in juxtaposition to true venue provisions or be referred to in its body as a venue statute.” [Footnotes omitted.] 1 McDonald, Texas Civil Practice, sec. 4.02 at p. 411 (1965).

We are of the opinion that Article 7345b-1 is such a statute. Bachus v. Foster, 122 S.W.2d 1058 (Tex.Com.App.1939, opinion adopted); Gambill v. Town of Ponder, supra, 494 S.W.2d at 810; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 367 (Tex.Com.App.1933, opinion adopted); Calvert v. Hall, 514 S.W.2d 778, 781 (Tex.Civ.App.—Austin 1974, writ dism’d); Texas Employers’ Insurance Ass’n v. Ellis, 543 S.W.2d 397, 399 (Tex.Civ.App.—El Paso 1976, no writ); Colvin v. State, 416 S.W.2d 513, 515 (Tex.Civ.App.—Dallas 1967, no writ).

Accordingly, this suit being one for the collection of delinquent ad valorem taxes on personal property due a political subdivision of this State in which venue was fixed as a matter of law under Article 7345b — 1, no issue of venue can arise under a plea of privilege. “The court can not be under a duty to transfer a cause to a court which has no jurisdiction. In such a situation, a plea of privilege is inappropriate, and the court may strike a plea of privilege on its own motion or on special exception.” 1 McDonald, Texas Civil Practice, sec. 4.46.1, pp. 586-7. Appellant’s points of error one and two are overruled.

In point of error four appellant complains that the trial court abused its discretion when it refused to consider appellant’s affidavit in opposition to the City’s motion for summary judgment. Rule 166-A, T.R.C.P., provides in pertinent part, “Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may serve opposing affidavits or other written response.” This was a change, effective January 1,1978, from the provision which theretofore stated, “the adverse party prior to the day of hearing may serve opposing affidavits.” Even prior to the amendment, the provision was held to mean that the trial court had considerable discretion to receive opposing affidavits on the day of hearing. Lindley v. Smith, 524 S.W.2d 520, 523 (Tex.Civ.App.—Corpus Christi 1975, no writ); Brown v. Aetna Casualty & Surety Co., 366 S.W.2d 673, 675 (Tex.Civ.App. — Dallas 1963, writ ref’d n. r. e.); 4 McDonald, Texas Civil Practice, sec. 17.26.7, at p. 150 (1971). Under the present wording of the provision, which was in effect at the time of the hearing on appellee’s motion for summary judgment, the trial court’s action in allowing or disallowing the filing of opposing affidavits within seven days prior to the day of hearing remains discretionary, and the trial court’s action will not be disturbed except on a showing of an abuse of discretion. Rule 166-A(c), supra.

Appellant’s argument in support of his point four is that a governmental entity, in a suit against a citizen, “should be held to a higher burden of total fairness to its citizens than should be allowed in a situation where both parties stand equal as citizens.” Appellant further states, “The Court should protect a citizen who has done everything he thought necessary to defend himself against the awesome power of government except that he failed to read Rule 166 — A(c).” These contentions have no merit. When the State of Texas enters its courts as a litigant, it must be held subject to the same rules that govern other litigants. State v. Zanco's Heirs, 18 Tex.Civ. App. 127, 44 S.W. 527, 529 (Tex.Civ.App.— San Antonio 1898, writ ref’d). Appellant has failed to show good cause why his affidavit was not timely filed nor has he otherwise shown an abuse of discretion by the trial court in refusing to allow him to file his affidavit later than seven days prior to the day of hearing. Appellant’s point of error four is overruled.

In his fifth point of error appellant contends that he was deprived of property without due process of law under the Texas and United States Constitutions, the argument being that if he can be deprived of his property, although present in court to answer a motion for summary judgment, without being given a hearing (i. e., without being allowed to file his affidavit in opposition to the motion), then he has not been afforded due process. Appellant makes the further suggestion that a warning should appear in bold print on the first page of a motion for summary judgment to the effect that the opposing party must file his response thereto at least one day prior to the day of hearing or judgment may be granted against him as a matter of law. Without such a warning appellant contends that he did not receive proper notice and was therefore deprived of property without due process of law. We are not favorably impressed with this argument. Inasmuch, however, as it is apparently urged seriously, we shall dispose of it. Appellant was not deprived of property without due process of law for the reason that due process does not require that a party be put on notice of the duly adopted and promulgated rules of court.

“Attorneys practicing before a court . and the parties to actions therein are bound to take notice of the duly-adopted and promulgated rules of such court, and ignorance of a rule ordinarily is no excuse for noncompliance therewith ..” [Footnotes omitted.] 21 C.J.S. Courts § 176 b at p. 280.

We note that appellant appears here as well as in the trial court pro se, and that he is an attorney licensed to practice law in this state. Appellant’s point of error five is overruled.

We now come to appellant’s third point of error, in which he argues that the motion for summary judgment was incorrectly granted in that there was not shown to be an absence of genuine issue as to any material fact. Appellee’s use of a form petition, containing some general allegations applicable to suits of this nature, and containing blank spaces to be filled in with specific allegations applicable only to the case at hand, and the fact that the petition in this case cited two party-defendants, have resulted in some minor discrepancies between the general and specific allegations.

The first paragraph of the petition states:

“The name and county of residence, along with address for service of process, for all known defendants are: DAVID P. BELL, owner January 1, 1975, who has heretofore been served with citation at 2403 Lehigh Dr., Austin, Travis County, Texas, 78723; and NATE RHODES, owner January 1, 1974, who has heretofore been served with citation at 440 Santa Monica, Corpus Christi, Nueces County, Texas, 78411; both doing business under the assumed name of PLEASURETIME BEVERAGES at 5415 North Lamar, Austin, Travis County, Texas, 78751, who reside in Travis County, Texas, and who own or claimed some interest in the hereinafter described personal property on the first day of January of each year of the years for which taxes are sought, which property was situated for tax purposes in Travis County, Texas, for said year(s).”

The prayer of the petition states, in part: “Plaintiff prays . . . that Plaintiff

on behalf of itself and/or the Austin Independent School District have judgment against said defendant(s) and if more than one defendant that judgment be jointly and severally against said defendants for the total amount of said delinquent taxes, together with all penalties, interest and costs and other charges or expenses that may be or which become legally due and owing to said City and/or School District . . . ”

and further praying for foreclosure of tax liens on the property involved. There is no prayer for general relief. Attached to the petition are copies of the tax notices for the years in question, those for 1974 and 1975 being assessed in the name “Pleasuretime Beverages,” and that for 1976 in the name of “Pleasuretime Beverages, c/o David P. Bell.”

Appellee’s motion for summary judgment recites that appellee had filed this suit, that all adverse parties were before the court and that the supporting affidavits and pleadings on file “show that the City has a liquidated claim for taxes and there is no genuine issue as to any material fact, and that [appellee] is entitled to judgment as a matter of law.” The motion is unsworn. Appellee also filed an “Affidavit in Support of City of Austin’s Motion for Summary Judgment,” made by the senior assistant city attorney for appellee. Attached to said affidavit were four exhibits: (1) a certificate from the Secretary of State certifying appellee’s charter and the several amendments thereto, (2) the affidavit of the city clerk of appellee, certifying a copy of a section of the Austin City Code delineating the requirements for delinquent city tax records, (3) a copy of Article VIII of the City Charter, entitled “Taxation,” and (4) an affidavit from the tax assessor and collector of appellee certifying a copy of the delinquent tax rolls assessed in the name of Pleasuretime Beverages (copies of the same tax notices attached to appellee’s petition).

Appellant makes six discernible contentions under his third point of error. First, he complains that an issue of material fact is presented by appellee’s petition in that paragraph one of said petition indicates contradictory residences of appellant. It was not alleged, however, that appellant resided both in Nueces and Travis Counties, but only that he was served with citation in Nueces County and resided in Travis County. Thus, there is no material contradiction.

In his final contention under this point, appellant argues that there is no statement by a person with knowledge of the facts to show the basis for the value of the property and the tax rate. Section 8, entitled “Tax Suits — Evidence—Limitations,” of Article VIII of the charter of the City of Austin, which was attached to the affidavit supporting appellee’s motion for summary judgment, provides in part as follows:

“In all suits for the collection of taxes which have been heretofore or which may be hereafter levied upon the tax rolls of said City, a certified statement made therefrom by the Assessor and Collector, shall be prima facie evidence of the truth of all recitations and facts shown by said rolls and shall be held to be sufficient proof (subject to rebuttal only by pleading and proof by defendant) of the following facts, viz:
(c) That all acts and proceedings required by law or by ordinance of said City in the manner of rendering, appraising, and fixing of values upon said property and the giving of all notices to such taxpayers have each and all been performed and complied with at the time and in the manner and form required, and that all things that might be construed as conditions precedent to the lawful demand upon such taxpayers to pay the amount of taxes in such rolls shown to be due by him or them have been performed at the time and in the manner required by law . .

Thus, the City has availed itself of the provisions of Section 6, Article 7328.1 and Article 7337, V.T.C.S. In the instant case the affidavit of the tax assessor and collector and copies of the delinquent tax notices were filed in support of the motion for summary judgment. Inasmuch as appellant did not properly submit matters in opposition to said motion, appellee’s prima facie case regarding the basis for valuation of the property and the tax rate, was made. Appellant’s contention, therefore, is without merit.

The remainder of appellant’s contentions under his third point of error concern the question of proof of his ownership of the taxed entity and the ramifications thereof with regard to the judgment as rendered. Appellant points out that appellee’s petition indicates in paragraph one that appellant was the owner of Pleasuretime Beverages on January 1, 1974, and that David P. Bell was owner on January 1, 1975; that there was no indication in paragraph one of who was the owner on January 1,1976; and that paragraph one also states that both parties claim some interest for each of said years. He further points out that appellee prayed that appellant and Bell, as defendants, be jointly and severally liable for the total amount of delinquent taxes. Moreover, appellant argues that there was no summary judgment proof that he was the owner of Pleasuretime Beverages at any time, and that the trial court’s division of taxes due between Bell and himself had no basis in the summary judgment proof.

Appellee admits in oral argument before this court that its petition was not artfully drafted. We are constrained to agree inasmuch as it is obvious that the form petition used by appellee was designed for use against a single defendant or co-owner defendants; here, appellee has sued two defendants, who apparently owned the taxed property at different times, without making necessary alterations to clarify the provisions of the petition.

Appellant’s arguments, however, with regard to the lack of the summary judgment proof of his ownership of the taxed entity have validity only insofar as they concern him individually. Appellant was sued both individually and “doing business under the assumed name of PLEAS-URETIME BEVERAGES.” Rule 28, T.R. C.P., provides that an individual doing business under an assumed name may be sued in that assumed name for the purpose of enforcing against him a substantive right, and Rule 93, subdivision (o), prescribes that a pleading that a party plaintiff or defendant is no doing business under an assumed name or trade name as alleged must be verified by affidavit. Since, in the instant case, there is no indication in the record that appellant filed such an affidavit, the matter was not put in issue. Rule 92, T.R. C.P.; Condry v. Mantooth, 460 S.W.2d 513, 516 (Tex.Civ.App.—Houston [1st Dist.] 1970 no writ).

Appellee’s pleadings allege that appellant, doing business as Pleasuretime Beverages, was owner of the personal property on January 1, 1974, and that Bell was owner on January 1, 1975. The summary judgment proof shows that such taxes were assessed against Pleasuretime Beverages for all three years and that they were delinquent and unpaid. There was no showing in the summary judgment proof that appellant, individually, was the owner of Pleas-uretime Beverages for the tax year 1974 or for any other year. The delinquent tax notices for all three years were made out in the name “Pleasuretime Beverages” and not in the name of appellant or Bell. Since appellant was sued under the assumed name Pleasuretime Beverages and failed to deny that he was doing business under such name, he was, for purposes of this action, one and the same as the business entity known as Pleasuretime Beverages. As such, appellant could have been held liable, jointly and severally with Bell, under proper pleadings, for the taxes assessed against Pleasuretime Beverages for all of the three years in question. Even though appellant may have been subject to liability for additional taxes, the trial court limited its judgment against appellant to the amount of taxes, penalty, and interest for the year 1974. Appellant, therefore, is without an adequate complaint on appeal. We perceive no error in such action by the trial court. As noted, appellee alleged in its pleadings that appellant was owner of the personal property on January 1, 1974, only. Inasmuch as damages are measurable by the amount shown by the pleadings, Davis v. Standard Rice Co., 293 S.W. 593, 597 (Tex.Civ.App.—Galveston 1926, writ dism’d), and every element of recovery must be supported by the pleadings, Texas Cities Gas Co. v. Ellis, 63 S.W.2d 717, 720 (Tex.Civ.App.—Waco 1933, no writ), appellee’s recovery here was correctly limited to the amount of taxes, penalty, and interest for the year 1974. Appellant’s third point of error complaining of error by the trial court in granting appellee’s motion for summary judgment, is overruled.

Judgment of the trial court is affirmed.

      . All statutory references are to Texas Revised Civil Statutes Annotated.


text:
    In re Elma Jean ROBERTS.
    No. 20101.
    Court of Civil Appeals of Texas, Dallas.
    July 13, 1979.
    Joseph L. Rosenfield, Rosenfield, Mitten-thal & Shieder, Dallas, for appellant.
    Donald R. Gray, Dallas, for appellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   ROBERTSON, Justice.

This is a habeas corpus proceeding under Tex.Rev.Civ.Stat.Ann. art. 1824a (Vernon 1964). Relator Elma Jean Roberts seeks discharge from the custody of the Sheriff of Dallas County. She was detained pursuant to a commitment order issued by the judge of the 254th District Court who found relator in contempt. We grant the writ of habeas corpus and discharge relator from custody.

Relator was found in contempt for failure to pay child support of $480.00 and a debt to American Airlines in the sum of $25.00. Further, she was held in contempt until she paid $33.00 to her husband as reimbursement for a community debt. Relator argues that the order of commitment is void in that it violates Tex.Const. art. 1, § 18 which states: “No person shall ever be imprisoned for a debt.” We agree. Since only one penalty was affixed for the three alleged acts of contempt and relator could not be held in contempt for two of them, the entire order is tainted and void. Ex Parte Harwell, 538 S.W.2d 667 (Tex.Civ. App.—Waco 1976, no writ).

Additionally, relator contends that she was not previously ordered to pay any funds to her husband. Consequently, she argues that she was not given adequate notice of the specific complaints that resulted in her incarceration, and thus the motion fails to comport with due process. We agree. Due process requires specific notice to relator of that for which she may be held in contempt. Since the show cause order and the motion for contempt do not specifically notify relator of the precise complaint for which she may be held in contempt, due process with respect to notice has been violated. Consequently, the contempt order is also void for this reason. In re Brian Eugene Miller, 584 S.W.2d 907 (Tex.Civ.App.—Dallas 1979).

Accordingly, relator is discharged.


author: SALAZAR, Justice.

text:
    Candelario G. REYNA, Jr., Appellant, v. Christine REYNA, Appellee.
    No. B2088.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    July 18, 1979.
    Rehearing Denied Aug. 8, 1979.

      William Dickson, Houston, for appellant.
    D. John Leger, Paul D. Glover, Leger, Hall, Hill & Glover, Carolyn J. Coughlin, Houston, for appellee.
    Before MILLER, PRESSLER and SALAZAR, JJ.
   SALAZAR, Justice.

This suit was instituted by appellant, Candelario G. Reyna, Jr. for modification of custody of one minor child previously awarded to appellee, Christine Reyna, in a divorce proceeding between the parties. Trial in the case was to a jury who found adversely to appellant on the special issues involving custody, and in answer to two other special issues, found the sum of $4,797.00 to be reasonable and necessary attorney’s fees for appellee’s attorney, Paul D. Glover, a member of the firm of D. John Leger & Associates. In another special issue, the jury found that the attorney’s fees for appellee should not be assessed against appellant. Appellee was then granted her motion to disregard this finding. Judgment was subsequently entered by the trial court denying appellant’s motion for modification of custody and awarding appellee’s attorney, Paul D. Glover of D. John Leger & Associates, the sum of $4,797.00 as attorney’s fees. On this appeal, appellant complains only of the award of attorney’s fees.

Tex.Fam.Code Ann. § 11.18 (Vernon 1975) permits the trial court to tax reasonable attorney’s fees as costs which may be ordered paid directly to the attorney, who may in turn enforce the order for fees in his own name. The reasonableness of attorney’s fees is a question of fact to be determined by the trier of the facts and must be supported by competent evidence. Great American Reserve Insurance Company v. Britton, 406 S.W.2d 901 (Tex.1966); Peeples v. Peeples, 562 S.W.2d 503 (Tex.Civ.App.—San Antonio 1978, no writ). Point of error one is overruled.

Points of error two and three contest the submission of special issues three and four. In its answer to special issue three, the jury found that it was necessary that appellee, Christine Reyna, hire an attorney to protect her rights and that of her minor child during the trial of this action. In response to special issue number four, the jury found that the sum of $4,797.00 was the reasonable and necessary amount to be allowed as attorney’s fees in this cause for the representation of appellee.

We overrule points of error numbers two and three. There was competent testimony from the attorneys representing both parties as to the reasonableness of the fees and it was properly within the province of the jury to determine the reasonableness and sum of such attorney’s fees. Furthermore, appellee pled for her attorney’s fees both in her original answer to the appellant’s motion to modify and in her cross action; thus, we overrule point of error five. While appellant complains of the omission of a definition of “necessary” submitted in connection with special issue three, it is apparent from the record on appeal that appellant did not tender a written requested instruction pursuant to Tex. R.Civ.P. 279. Appellant has thus waived any complaint on this ground in this appeal.

Point of error four urges error by the trial court in disregarding the jury’s answer to special issue five wherein the jury found that the attorney’s fees for ap-pellee should not be assessed against appellant. As the Chief Justice in this Court held in Derbonne v. Derbonne, 555 S.W.2d 507 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ dism’d), the award of attorney’s fees in actions to change custody and other actions falling under the Texas Family Code dealing with suits affecting the parent-child relationship including Section 11.-18 previously cited herein, is soundly within the discretion of the trial court. In Der-bonne, this Court affirmed the failure of the trial court to award attorney’s fees to appellant in defense of a cross action as being within the discretion of the trial court notwithstanding a jury finding that $2,000.00 attorney’s fees was a reasonable amount for the services performed. After reviewing the record, in this case, we cannot say that the trial court abused its discretion in awarding appellee attorney’s fees in the amount found by the jury.

Having reviewed all points of error and the authorities cited therein, we affirm the trial court below.