text:
    William A. ABLES, Jr., Appellant, v. Elizabeth Jane ABLES, Appellee.
    No. 5622.
    Court of Civil Appeals of Texas, Waco.
    Aug. 19, 1976.
    Joseph F. Sage, Deane & Sage, Inc., San Antonio, for appellant.
    Cheryl L. Wilson, Price & Wilson, San Antonio, for appellee.
   HALL, Justice.

In the judgment granting the wife’s petition for divorce, the trial court awarded her 50% of the retirement pay to which the husband is entitled by reason of his service of 30 years in the United States Air Force during the marriage. The husband assigns error to this award asserting that because he served as a regular officer in the military and not as a reserve officer his retirement pay will be compensation for continued service after retirement and is not a presently vested community property right subject to division between the parties. We overrule this contention and affirm the judgment.

In support of his contention the husband argues that, unlike reserve officers whose retirement severs their connections with the military and entitles them to retirement benefits, regular officers retire only from active duty and remain members of the military subject to continuing controls of the government which materially affect their right to pay after retirement. He points to these facts, among others: Regular officers may be recalled to active duty. 10 U.S.C. § 8504 (1970). They may be court-martialed for violations of the Uniform Code of Military Justice committed during retirement. 10 U.S.C. § 802 (1970). If proper, upon conviction they may be punished with dismissal from the service and forfeiture of all pay and allowances. Hooper v. United States, 326 F.2d 982, 164 Ct.Cl. 151 (1964), cert. denied, 377 U.S. 977, 84 S.Ct. 1882, 12 L.Ed.2d 746 (1964). They are subject to the Federal Dual Compensation Act, 5 U.S.C. § 5532(b) 1970, which provides for the reduction of a regular officer’s retired pay if . he accepts other federal employment.

The husband says these facts and others he refers to show that the retired regular military officer does not have the unrestricted right of use, enjoyment and disposal of his accrued retired pay sufficient to constitute it a vested property right or class it as a pension for past services, and that they conclusively establish that retired pay for regular officers is current salary earned on a monthly basis.

The possibility that a property may be subject to total or partial forfeiture does not destroy its character as a vested property right for the purposes of division on divorce. The fact that it may be forfeited is indicative it is presently vested. Otherwise, a discussion of the conditions resulting in divestment would be meaningless. “Only rights in existence can be forfeited.” Mora v. Mora, 429 S.W.2d 660, 662 (Tex.Civ.App.-San Antonio 1968, writ dism’d).

An officer in military service, whether regular or reserve, is entitled to retirement pay oi.ly if he serves the requisite number of years of active duty. 10 U.S.C. § 8911. No right to retirement pay accrues under the code until the officer, whether regular or reserve, has served the minimum required term of 20 years. Once the right is vested by term of service, the officer, whether regular or reserve, is eligible to receive retired pay simply by retiring. It is not conditioned on any post-retirement service.

There would have been no property in the form of retired pay for the court’s consideration here if the husband had not served the minimum of 20 years required by the code. It is apparent, therefore, the real consideration for the husband’s right to retirement pay will not be post-retirement service. Rather, it is his 30-year tenure of active duty already served. This service was rendered and the right was earned during the marriage of the parties. Accordingly, his retirement pay was vested community property subject to division by the court at the time of the divorce. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.Sup.1970); Fithian v. Fithian, 10 Cal.3d 592, 111 Cal.Rptr. 369, 517 P.2d 449, 456 (1974).

The judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Donald COX et ux., Appellants, v. Binem CUKIER et al., Appellees.
    No. 5633.
    Court of Civil Appeals of Texas, Waco.
    Aug. 19, 1976.

      Daniel R. Rutherford, San Antonio, for appellants.
    Richard Tinsman, Tinsman & Houser, Inc., San Antonio, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Cox from a take-nothing judgment against defendants Binem Cukier and Estera Cukier in an assault and battery case.

Plaintiffs Cox sued defendants Binem Cukier, Estera Cukier, and Morrie Cukier alleging plaintiff Bonnie Fay Cox was assaulted and battered by Estera Cukier and Morrie Cukier on March 31,1973; that Est-era Cukier and Morrie Cukier are the agents, servants, employees and the wife and son of Binem Cukier.

Defendants answered by general denial, and counterclaimed Bonnie Fay Cox had assaulted, battered and physically beat Est-era Cukier.

Trial was to a jury which found:

1) Bonnie Fay Cox sustained injury as a result of an assault by Morrie Cukier.
2) $3000. will compensate Bonnie Fay Cox for her injuries.
3) Estera Cukier did not sustain injury as a result of an assault by Bonnie Fay Cox.
5) Morrie Cukier did not sustain injury as a result of an assault by Donald Cox.
7), 8) Bonnie Fay Cox is entitled to $4500. exemplary damages.

The trial court rendered judgment for plaintiffs Cox for $7500. against defendant Morrie Cukier; found that Morrie Cukier was not acting as agent of Binem and/or Estera Cukier; that neither were participating as principals in connection with the assault and battery on Mrs. Cox; and rendered judgment that plaintiffs take nothing against Binem and Estera Cukier.

Plaintiffs appeal on 2 points contending the trial court erred:

1) In failing to grant a joint and several judgment against all defendants.
2) In finding that Morrie Cukier and Est-era Cukier were not acting as co-principals.

Donald Cox and his wife Bonnie Fay were resident managers of an apartment complex owned by Binem Cukier and wife Estera Cukier. Morrie Cukier the 19 year-old son of the Cukiers was a resident of the apartment complex. A dispute arose between Donald Cox and the Cukiers concerning the manager’s salary, and on March 29, Cox told Mrs. Cukier she would have to get a new manager. While Mrs. Cukier was collecting rent in a tenant's apartment on March 31, 1973 Mrs. Cox entered and waived a proposed managerial contract in Mrs. Cukier’s face, and demanded she read the proposed contract. Mrs. Cukier took the paper, and Mrs. Cox left the apartment. Thereafter at the entrance of the Cox apartment Mrs. Cox and Mrs. Cukier had a heated verbal exchange, in the course of which Mrs. Cox grabbed Mrs. Cukier by the blouse and shoved her. Mrs. Cukier began to cry and ran to the apartment of her 19 year-old son Morrie, and told him Mrs. Cox had struck her and torn her blouse. Morrie became infuriated; Mrs. Cukier told him not to cause any trouble; and he said he would not. Morrie left his apartment, found Mrs. Cox in the courtyard, grabbed her arm, cursed her and demanded she apologize to his mother. Mrs. Cox apologized and Morrie returned to his apartment. Mrs. Cox told her husband what had happened when he came home, and Mr. Cox went to Morrie’s apartment and hit Morrie once or twice. Others intervened and Mr. Cox returned to his apartment. The police arrived, but made no arrests.

Binem Cukier was not present at the apartment complex when the disturbance occurred. The evidence is undisputed that Binem Cukier and Estera Cukier did not personally assault and batter Mrs. Cox.

For Binem Cukier and Estera Cukier to be liable when they did not personally assault plaintiff they must be found to have given aid or encouragement of some kind to the actual participant. Francis v. Kane, Tex.Civ.App., NWH, 246 S.W.2d 279; Walker v. Kellar, CCA, Er.Ref., 226 S.W. 796.

The evidence is that Estera Cukier did not encourage her son to assault or batter Mrs. Cox, and in fact urged him not to cause any trouble.

If a fact issue was raised as to whether Mrs. Cukier aided, abetted or encouraged her son, plaintiffs waived same by not requesting issues on such. Rule 279 TRCP; Don’s Ambulance Service, Inc. v. City of San Antonio, Tex.Civ.App., NWH, 526 S.W.2d 547.

There was no evidence that Morrie Cukier was an agent of or employee of Binem or Estera Cukier, and he was over 19 years of age.

Both plaintiffs’ points are overruled.

AFFIRMED.


author: RAY, Justice.

text:
    Adelle POWELL, Appellant, v. LENOX JENKINS INTERIORS et al., Appellees.
    No. 8346.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 24, 1976.
    Rehearing Denied Sept. 14, 1976.

      John F. Bass, Bass & Garza, Dallas, for appellant.
    C. Edward Fowler, Jr., Bailey, Williams, Westfall & Henderson, Dallas, for appellees.
   RAY, Justice.

This is a trip and fall case. Adelle Powell, appellant (plaintiff), brought suit against Lenox Jenkins Interiors, appellee (defendant), to recover damages for her personal injuries sustained when she tripped and fell as a result of catching her foot under a carpet pad installed by Lenox in her employer’s (Colbert-Volk) store. The trial court entered judgment for appellee, Lenox Jenkins Interiors, upon the jury finding that appellee was not negligent in connection with gluing the pad seam to the floor. Appellant has perfected her appeal and submits five points of error for our consideration.

On March 22, 1972, appellant was working as a sales clerk for Colbert-Volk in Dallas when she was injured. Colbert-Volk is a retail clothing store and was in the process of remodeling at the time of the accident. Appellee had laid the carpet padding the night before the accident occurred but had not laid the carpet over the padding as it was supposed to have done. The seams of the carpet padding had been spot glued as was customary prior to covering the padding with carpet. Appellee had not warned Appellant Powell of any dangers involved in walking upon the carpet padding.

Appellant testified that she was walking to greet a customer when she caught her foot under the pad causing her to fall and suffer severe injuries. No visual warning signs were posted.

Appellee, as a non-occupier of the premises, owed a duty to exercise care to all persons encountering the risk of being injured and could not rely upon the doctrine of open and obvious conditions to avoid that duty. Texas-Louisiana Power Company v. Webster, 127 Tex. 126, 91 S.W.2d 302 (1936). See Rourke v. Garza, 511 S.W.2d 331, 337 (Tex.Civ.App. Houston-1st Dist. 1974), affirmed, 530 S.W.2d 794 (Tex.1975).

Appellant contended at the trial that she was a business-invitee, that appellee owed her a duty to exercise reasonable care to protect her from unreasonable dangerous risks, and that appellee negligently failed to carry out that duty. On appeal, appellant contends that the trial court erred in filing to submit her requested issue on failure to warn. Appellant requested negligence and proximate cause issues but did not request an issue on whether appellee created a dangerous condition nor did appellant request an issue on damages. It was not established as a matter of law that the carpet pad constituted a dangerous condition. There was evidence both that the carpet pad constituted a dangerous condition and that it did not.

When an independent ground of recovery consists of two or more component elements and when the party relying upon that ground has failed to request submission of one of the necessary elements, then he has waived that element and the trial court is not required to submit the other elements to the jury even though the non-requested element may have been raised by the pleadings and by evidence sufficient to sustain a finding favorable to the party relying upon that element of the independent ground of recovery. In Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.1965), it was stated:

“Under the provisions of Rule 279, Texas Rules of Civil Procedure, an independent ground of recovery or defense not conclusively established by the evidence is waived if no issue thereon is given or requested.”

In the present case, the subject of the independent ground of recovery was whether the appellee had created a dangerous condition with the carpet padding. The first element of that ground of recovery would have been an issue inquiring as to the existence of the subject, that is, whether Appellee Lenox had created or maintained a dangerous condition on the premises where appellant worked. If the subject of the inquiry did not exist, then the other issues inquiring about the other elements of the independent ground of recovery would have no importance. It was therefore necessary for appellant to request an issue and get a favorable jury finding that appellee had created or maintained a dangerous condition before there could be a duty to warn. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452, 455 (Tex.1972). No such issue was requested. Because appellant did not request an issue on dangerous condition, it was waived, and the trial court did not commit reversible error in refusing to submit appellant’s requested issues inquiring whether appellee was negligent in failing to warn and whether such failure was a proximate cause of appellant’s injuries. Tex.R.Civ.P. 279; Glens Falls Insurance Co. v. Peters, supra; 3 McDonald's Texas Civil Practice, Sec. 12.36.2, et seq.

Appellant’s points of error have all been examined and found to be without merit and are therefore overruled. The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    Nolberto MARTINEZ, Appellant, v. Thomas D. MEEK, M.D., Appellee.
    No. 6515.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 25, 1976.
    Rehearing Denied Sept. 15, 1976.

      Dan Sullivan, Andrews, for appellant.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., W. 0. Shafer, James M. O’Leary, Odessa, for appellee.
   OPINION

WARD, Justice.

This is a medical malpractice case where at the conclusion of the plaintiff’s evidence the trial Court granted defendant’s motion for an instructed verdict and entered judgment for the doctor. A small clip or piece of metal was left in the defendant’s back in or near the spinal canal, either accidentally or intentionally, as a marker to show the location of a laminectomy. Legal sufficiency questions are raised as to negligence, fraudulent concealment and causation. We affirm.

On October 1, 1970, Nolberto Martinez injured his back while loading signs as a part of his highway department job. He was referred to Dr. Thomas D. Meek, a neurosurgeon practicing in Odessa, on October 19th, and he made a diagnosis of a ruptured disc. The next day, Dr. Meek performed a laminectomy and removed a portion of the disc between L-4 and L-5. Because the plaintiff had an extra transitional vertebra, Meek testified that he placed a small clip in the back as a marker to locate the site of the operation. This was described as a tiny surgical clip, about one millimeter wide and a few millimeters long, and constructed of an inactive metal. The doctor did not inform Martinez about the surgical clip either before or after the operation, and he did not mention the clip in his post-operative report filed at the hospital, but the X-ray report made after the operation notes the presence of the object. According to Meek, the clip was placed above the area where the disc was removed and to the side. According to Dr. Palafox, who testified for the plaintiff, the metal was a piece of a surgical suturing needle and was located in the spinal cord or very close to it. The plaintiff continued to suffer intense pain in his back, and after learning of the piece of metal and its possible connection with his problems, he filed suit against the doctor alleging that Dr. Meek was negligent in leaving within his body a piece of a surgical needle or a surgical clip; that the doctor wilfully and fraudulently withheld from the plaintiff the fact that he had left in his body the foreign metal object, and he claims on appeal that the doctor was negligent in failing to inform him before the operation that the clip was going to be left in.

The one point on appeal is that there was sufficient evidence introduced upon which the plaintiff was entitled to have the case submitted to the jury. The evidence will be considered in the light most favorable to the plaintiff, conflicts will be disregarded, and every inference from the evidence will be indulged in favor of the plaintiff. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965).

Appellee argues that there was no evidence as to negligence or fraudulent concealment concerning the leaving of the clip as this was not the ordinary “foreign body” case because the clip was intentionally left as a part of the surgical process and as a marker. Dr. Meek and Dr. Palafox both testified that the leaving of a marker was standard and accepted practice of marking a surgical site. Dr. Meek testified that he did not inform the plaintiff or report it as it was a very insignificant event, and he could not have informed him before the operation as he did not know at that time that he would mark the site of the operation. We are not prepared to accept this argument as dispositive of the question of negligence or of the unimportance of the concealment. The testimony remains unchallenged by any objection that the item appeared to Dr. Palafox to be a piece of a surgical suturing needle; that it was in the spinal canal and not, as claimed by Dr. Meek, an inch or two away from the spinal canal. The fact also remains that the item was neither reported to the patient nor entered on the hospital records. This lapse was condemned by Dr. Palafox who stated that, if it was a marker, it was common practice among surgeons to report it in the operative procedure so later physicians would be aware of what they were looking at and why it was left there; that it was also advisable to tell the patient that the object was left in his body in order that the patient could advise any future physician that it was there and the reason why. One apparent inference from the above is that the treating physician inadvertently left the piece of needle in the patient’s body, and therefore didn’t report it or, if he found it in the post-operative X-ray, he then intentionally failed to call it to his patient’s attention.

The plaintiff is complaining of unbearable pain since his operation, and that he is disabled from that pain. It is obvious that medical testimony is needed to establish the causal connection between the piece of metal and the disabling pain. Therefore, the essential ingredient to this cause of action for malpractice is medical testimony showing that the metal or marker is the proximate cause of the pain and the plaintiff’s condition. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). The causal connection is also essential to the cause of action based upon fraud or fraudulent concealment. Allison v. Blewett, 348 S.W.2d 182 (Tex.Civ.App.-Austin 1961, writ ref’d n. r. e.); and Thomas v. Beckering, 391 S.W.2d 771 (Tex.Civ.App.-Tyler 1965, writ ref’d n. r. e.). The evidence must show at least a reasonable probability that the plaintiff’s complaints were caused by the defendant’s act. Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703 (Tex.1970). “The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts.”

After reviewing all of the evidence in the light most favorable to the Appellant, we are unable to find anything in the testimony that the metal either caused or contributed to cause the pain complained of. All we have is a mere possibility. Dr. Palafox, upon whose testimony plaintiff relies, stated that the plaintiff’s condition and disability could be caused by the piece of metal, by the original disc, by a myelogram, or by the surgery. He said it would be pure speculation to say that the piece of metal was producing nerve root compression and the plaintiff’s back complaints. Because the essential element of a causal connection is lacking, any recovery is foreclosed. The following cases control: Bowles v. Bourdon, supra; Thomas v. Beckering, supra; and Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App.-El Paso 1974, no writ).

The judgment of the trial Court is affirmed.

ON MOTION FOR REHEARING

In his motion for rehearing, the Appellant vigorously asserts that we have failed to consider the evidence on causation in the light most favorable to his case and with complete disregard as to contrary evidence and inferences arising therefrom. Dr. Pala-fox testified by deposition and, after describing that the metallic foreign body was located in the spinal canal and after stating that all metals in a body will produce some degree of an electrolysis reaction, was asked on direct examination:

Question 37:

“If a surgical clip were left in the body of Nolberto Martinez at, on or near the spinal canal area of L-4, L-5 interspace, “would such surgical clip be likely, in all medical probability to produce pain and disability to the patient?”

He answered: “I believe so.”

Question 38:

“If so, please describe how such condition would result, if it would?”

Answer:

“I believe that foreign bodies in the spinal canal, especially metallic, can produce electrolytic reactions and produce irritating arachnoiditis in this area.”

Question 39:

“In your letter to me of January 8, 1973 you state that ‘it is my opinion that there is very little question that this patient has very significant permanent disability at this time and I do believe he is, at present, totally disabled for returning back to any type of heavy physical work.’ Would you please tell the jury, if you can, how much of such disability that you have described was caused by the foreign body being imbedded some place in the spinal canal, at about L-4, L-5 vertebra level as you reported to me in your letter of January 8, 1973.”

Answer:

“I cannot answer this. Though I believe the patient has a total disability, it could be as a result of the disc problem, a subsequent arachnoiditis from a myelog-raphy or subsequent arachnoiditis from the surgical intervention. I cannot state which of these possibilities is the most probable.”

Three letters of the doctor were introduced by the plaintiff as expressing his medical opinion, each letter being written after a physical examination was made of the Appellant. The one made after the examination of June 6,1972, states the following:

“In my opinion there is very little question but that this patient has a lumbar discogenic syndrome, has very serious permanent disability at this time. There is also the question as to whether or not this foreign body (needle) is producing the difficulty. In view of the fact that the needle is in or very close to the spinal canal, there is a possibility it could be producing some reaction, producing nerve root irritation. This is speculative on my part and is definitely not a conclusive answer. * * * ”

On cross examination of the doctor, the following was developed:

Cross-Interrogatory No. 6:

“It is your opinion that it would be speculative to say that the ‘needle’ is producing nerve root irritation, isn’t it Doctor?”

Answer: “Yes.”

Cross-Interrogatory No. 7:

“Doctor, just as you said on June 6, 1972, it would be pure speculation for you to say that the metal object in question is producing nerve root compression or Martinez’s back complaints, wouldn’t it?”

Answer: “Yes.”

Cross-Interrogatory No. 11:

“Do you agree that it is just as likely that Martinez’s back complaints are being produced by some other cause as it is the piece of ‘needle’ in his back?”

Answer: “Yes. As a matter of fact, this is the answer I gave in the earlier answers to the questions by the Plaintiff’s Attorney.”

Cross-Interrogatory No. 12:

“Do you agree that the lumbar discogem ic syndrome that you have diagnosed in Mr. Martinez is more likely the cause of his disability and complaints than the piece of ‘needle’ in his back?”

Answer: “I wouldn’t say ‘more likely’ I would say just as likely could be the causative factor producing the back problem.”

The one answer made by the doctor to Question 39 cannot be taken out of context, which is what the Appellant insists that we do. It is clear that this answer was based on mere speculation and possibility rather than upon the reasonable degree of medical probability required. Duncan v. Smith, 393 S.W.2d 798 at 805 (Tex.1965). At best, the evidence from the one question is so weak as to do no more than create a mere surmise or suspicion as to its existence, which legally is no evidence. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970).

The motion for rehearing is overruled.


author: HALL, Justice.

text:
    Jack K. JUNG, Appellant, v. CITY OF SAN ANTONIO FIREMEN AND POLICEMEN'S PENSION FUND, Appellee.
    No. 5628.
    Court of Civil Appeals of Texas, Waco.
    Aug. 26, 1976.
    Rehearing Denied Sept. 16, 1976.
    Harry A. Nass, Jr., San Antonio, for appellant.
    Harvey L. Hardy, San Antonio, for appel-lee.
   HALL, Justice.

The appellant retired from the fire department of the City of San Antonio on a disability pension on March 1, 1975, in his 26th year of service with the department. The Board of Trustees which administers the City of San Antonio Firemen And Policemen’s Pension Fund set his base pension at $529.48 per month. The eligibility for and the amounts of pensions allowed under the fund are controlled by the provisions of Article 6243f, Vernon’s Tex.Civ.St. The appellant brought this suit contending that under the terms of Section 26A(2) of the statute he is entitled to have his base pension increased by cost of living increases set by the Board for pensioners during the years prior to the year of his retirement which would raise his base to $600.22 per month. After a hearing without a jury, the trial court ruled against the appellant. We affirm this ruling.

At the time of the appellant’s retirement Section 26A(2) of Article 6243f contained these provisions:

The Board shall annually, beginning in 1972, at or before its regular meeting in the month of March, review the Cost of Living Indexes of the United States Bureau of Labor Statistics for the preceding calendar year. If such index should report an increase or decrease during such calendar year in the cost of living as much as three percent (3%) as compared with the Cost of Living Index at the close of the year 1971 (which is hereby declared to be the base index) the Board shall enter its order increasing or decreasing all pension payments (present and prospective) by three percent (3%), or more (depending on the amount of increase or decrease) but only by full percentage points closest to the exact amount of such increase or decrease. Such increase or decrease shall be effective retroactively as of the month of January next preceding such March (or earlier) Board meeting and shall continue in effect for at least one full year thereafter, and until there has been an additional increase or decrease of at least three percent (3%) compared to such base figure. Provided, however, that no pension shall ever be decreased below the amount at which it was originally granted . . . (Emphasis added.)

The construction of the words “present and prospective” emphasized by us in the statute poses the main problem on this appeal. Of no consequence here, these words were removed from the statute after the appellant retired.

Early in 1973, the Board set the pensioners’ cost of living increase at 4% for the year 1972; in 1974 it set the cost of living increase for the year 1973 at 9%; and in 1975 it set this increase for 1974 at 12%.

Effective August 1, 1973, the Board decided the words “present and prospective” in the statute meant a pension was not only subject to the cost of living increase (or decrease) beginning with the year in which the pensioner retired, but it was also subject to increases (and decreases) set by the Board for the years prior to the year the pensioner retired. This is the construction the appellant now seeks. The Board followed this construction until November, 1974. At that time it decided it was in error and that under the statute a pension should be increased or decreased by the cost of living index beginning only with the year of the pensioner’s retirement. It then caused this notice to be given to all potential pensioners: “Any man retiring after December 31, 1974, will no longer have any cost of living compounded included in his pension.”

The appellant was eligible to retire in December, 1974, whether he was disabled or not, by reason of twenty-five years’ service. However, according to his testimony, he failed to meet the Board’s deadline for these reasons: (1) Because of federal income tax benefits, he chose disability retirement over longevity retirement; and (2) he was unable to provide the Board with necessary medical proof of disability by the end of the year.

The methods for computing the amount of base pension for longevity and disability retirements are set forth in Sections 8 and 10 of Article 6243f. There is no reference in these Sections to Section 26A(2) or to cost of living increases or decreases. Basically, the computations turn on the pensioner’s term of service and salary at the time of retirement. In effect, the appellant contends that by the enactment of Section 26A(2) the Legislature impliedly intended to amend Sections 8 and 10 and increase or decrease base pension computations under those sections with cost of living increases and decreases set annually by the Board. Plainly, the Legislature did not intend this result. What it intended was to subject pensions already computed under Sections 8 and 10 to cost of living increases or decreases beginning with the year of retirement, without regard to what month in the year the pension began.

Finally, the appellant says he should prevail because the meaning he seeks for the statute was the one given it by the Board for fifteen months ending a short time before his retirement. We disagree. Where a statute is ambiguous or otherwise of doubtful meaning, courts seeking to construe it will sometimes accord great weight to prior constructions placed on it by an agency which administers it. The statute before us is not ambiguous or doubtful.

The judgment is affirmed.


author: McDONALD, Justice.

text:
    PACIFIC EMPLOYERS INDEMNITY COMPANY, now: INA of Texas, Appellant, v. Betty L. CUSTER et al., Appellees.
    No. 5636.
    Court of Civil Appeals of Texas, Waco.
    Aug. 26, 1976.
    Rehearing Denied Sept. 23, 1976.
    Robert Summers, Clark, Thornton & Summers, San Antonio, for appellant.
    Frank R. Southers, Clem Lyons, Southers, Goldberg, Lyons & Huson, Inc., George Rigely, San Antonio, for appellees.
   OPINION

McDONALD, Justice.

This is a workmans compensation case. Appellant Pacific, the insurance carrier filed suit to set aside final award of the Industrial Accident Board awarding death benefits to appellees, because of the death of Edwin D. Custer. Appellee’s widow and minor children of Edwin D. Custer answered, and cross actioned seeking death benefits under the compensation law.

Appellees alleged Edwin D. Custer, on April 5,1974, while working in the course of his employment for Handy Andy Inc., “suffered a bodily injury to his head, brain and body generally, as a result of physical exertion, which injury caused or contributed to cause his death on April 9, 1974”, and, if at the time such injuries were sustained Edwin D. Custer was suffering from any disease or condition, then the same was not disabling, and said injuries caused such disease or condition to become aggravated, excited, precipitated, worsened, or accelerated, so that the same caused or contributed to cause said injury and resulting death of Custer.

Appellant alleged Custer’s death was solely caused by prior or subsequent diseases namely “intra-cerebral hemorrhage of the right hemisphere, acute bronchopneu-monia, central nervous system anoxic degeneration, mild nephrosclerosis, mild arte-riosclerotic heart disease”.

Trial was to a jury which found:

1) Custer received an injury on or about April 5, 1974.
2) Which was in the course of his employment by Handy Andy, Inc.
3) And that such injury was a producing cause of the death of Custer.

The trial court rendered judgment on the verdict for death benefits for appellees.

Appellants appeal on 6 points contending the trial court erred:

1) In refusing to submit Appellant’s Requested Issue 1-A with accompanying instruction.
2) In refusing to submit Appellant’s Alternate Requested Issue 1-A with accompanying instruction.
3) In rendering judgment for appellees because there is no evidence to support the jury’s answer to Issue 1.
4) In rendering judgment for appellees because there is no evidence to support the jury’s answer to Issue 2.
5) In rendering judgment for appellees because there is no evidence to support the jury’s answer to Issue 3.
6)In overruling appellant’s objection to the hypothetical question propounded to Dr. Lewis Heifer by counsel for appellees.

Points 1 and 2 complain of the refusal of the trial court to submit its Requested Issues 1-A and Alternate 1-A.

The trial court submitted issues with accompanying instructions as follows:

“1) Do you find from a preponderance of the evidence that Edwin Custer received an injury on or about April 5, 1974?
“Injury means damage or harm to the physical structure of the body and such diseases or infections as naturally resulting therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity or condition, previously or subsequently existing, by reason of such damage or harm.
“There can be no ‘injury’ as defined, if any damage or harm was solely caused by any pre-existing event or bodily condition or any subsequently developing event or bodily condition not incited, accelerated or aggravated by the movement of the acetylene bottles, and you are instructed that the burden is on the plaintiff to establish that such pre-existing or subsequent event or bodily condition was not the sole cause of any damage or harm.
“Answer ‘we do’ or ‘we do not’
“Answer_
“If you have answered Issue 1 ‘we do’, then please answer Issue 2. Otherwise, do not answer Issue 2.
“2) Do you find from a preponderance of the evidence that Edwin Custer received an injury in the course of his employment by Handy Andy, Inc.?
“Injury in the course of employment means any injury having to do with and originating in the work, business, trade or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs of business of his employer, whether upon the employer’s premises or elsewhere.
“Answer: ‘we do’ or ‘we do not’
“Answer:_
“If you have answered Issue 2 ‘we do’ then please answer Issue 3. Otherwise do not answer Issue 3.
“3) Do you find from a preponderance of the evidence that such injury was a producing cause of the death of Edwin Custer?
“ ‘Producing cause’ means any injury or condition which, either independently or together with one or more other injuries or conditions, resulted in death, and without which such death would not have occurred when it did.
“An injury cannot be a ‘producing cause’ of death, if the death was solely caused by any event or bodily condition which pre-existed or developed subsequent to the movement of the acetylene bottles. You are instructed the burden is on the plaintiff to establish that such pre-existing or subsequent event or bodily condition was not the sole cause of the death”.

Appellant requested the following additional issues which the trial court refused to submit.

“1-A. Do you find from a preponderance of the evidence that such injury was the result of an accident?
“ ‘Accident’ means an undesigned or •unexpected occurrence, traceable to a definite time and place and an injury is not the result of an accident if it was the result of natural cause or causes.
“Alternate 1-A. Do you find from a preponderance of the evidence that such injury was the result of an accident?
“‘Accident’ means an undesigned or unexpected occurrence, traceable to a definite time and place”.

The evidence shows without dispute that the deceased on April 5, 1974 had to move two acetylene tanks on a two-wheel dolly, and that such apparatus was heavy, weighing from 120 to 300 pounds; that when deceased moved the acetylene tanks he turned red, had pain in his head, looked tired; went to the restroom where he vomited; had difficulty with his hands the next day and complained he was ill and went home from work in the morning; had a splitting headache and was getting weaker, was taken to the hospital April 6; arrived in a coma; and died on April 9, of an intra cerebral hemorrhage.

Succinctly stated it was appellee’s position that deceased suffered an injury on April 5, 1974 due to the strain from lifting the heavy acetylene bottles which was a producing cause of his stroke and subsequent death.

Appellant’s position was that deceased pre-existing condition was the sole cause of deceased’s death.

For there to be an accidental injury, or an industrial accident, there must be an undesigned, untoward event traceable to a definite time, place and cause. Olson v. Hartford Accident & Indemnity Co., Tex., 477 S.W.2d 859. Solomon v. Massachusetts Bonding & Insurance Co., (Tex.Civ.App., San Antonio) er. ref., 347 S.W.2d 17.

The evidence here traces the accidental injury to the employer’s premises on April 5, 1974 when deceased strained to lift the heavy acetylene bottles.

Issue 1 with its instructions inquired if deceased received an “injury” on April 5, 1974, informing the jury that he could not have received an “injury” if any damage or harm was solely caused by bodily condition before he moved the acetylene bottles or by any event or bodily condition after he moved the bottles.

Issue 2, conditioned on affirmative answer to Issue 1 inquired if such injury was received in the course of employment.

Issue 3, conditioned on affirmative answer to Issue 2 inquired if such injury was a producing cause of deceased’s death, instructing the jury that to be a producing cause of deceased’s death,-such death must not have been solely caused by any event or bodily condition before he moved the bottles or by any event or bodily condition after he moved the bottles.

These issues and instructions, with the burden placed on appellees, focused the jury’s attention on one event, one time, one place and one cause: deceased’s movement of the acetylene bottles. Every event and bodily condition before was eliminated from consideration, and every event and bodily condition after the movement of the bottles was eliminated.

Where the court fairly submits the controlling issues raised by the pleadings and evidence, it may properly refuse to submit other issues which are but various phases or different shades of the same issue TRCP 279; Guzman v. Maryland Cas. Co., 130 Tex. 62, 107 S.W.2d 356.

The jury was given a fair and adequate opportunity to determine whether deceased’s work in moving the acetylene bottles was a producing cause of his death, or whether it was solely caused by a pre-exist-ing condition.

Points 1 and 2 are overruled.

Points 3, 4 and 5 assert there was no evidence to support Issues 1, 2 and 3; and point 6 asserts the trial court erred in overruling appellant’s objection to the hypothetical question by appellees to Dr. Lewis Heifer.

Dr. Heifer, an expert witness, in answer to a hypothetical question testified the strain experienced by deceased was a producing cause of his death. His testimony was based in part upon assumptions stated in the question, and in part upon hospital records of the deceased which were never introduced into evidence.

Assuming without deciding that the trial court should have sustained objection to the hypothetical question asked Dr. Heifer there is still other evidence which sustains the jury’s answer to Issues 1, 2, and 3.

It is undisputed that deceased moved some heavy acetylene bottles, at work on his employer’s premises on April 5, 1974. His co-worker, the witness Heye, testified his face became red, he complained of pain in his head, looked tired, vomited, and had hand problems.

Dr. Coghlin testified his first examination of deceased showed him comatose, that his left lower extremities and left upper extremities were placid, while his right ones had seizure like activity; and that deceased’s moving the acetylene tanks, as related to the injury, was probably the beginning of his symptoms of the bleeding. It is undisputed deceased suffered bleeding inside the brain and that this bleeding began on the right side of the brain.

Dr. Heifer testified deceased died of an intracranial hemorrhage. Dr. Queen testified the bleeding on the right side of his head caused deceased’s death. Dr. Coghlin further testified the cause of deceased’s death was an intracerebral hemorrhage, a type of cerebral vascular accident. Dr. Heifer testified by deposition “the man lifted the tanks and when he lifted the tanks, or the acetylene bottles, that that caused him to start bleeding in the right side of his head”; and further testified that the lifting of the bottles caused the blood pressure to increase sufficiently to burst the blood vessel; and that the strain was a producing cause of deceased’s death.

There is evidence to support the jury’s answers to Issues 1, 2 and 3.

Points 3, 4, and 5 are overruled.

AFFIRMED.


author: YOUNG, Justice.

text:
    Virginia S. HOPKINS, Appellant, v. John F. HOPKINS, Appellee.
    No. 1080.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.

      Patrick J. Horkin, Jr., Horkin & Horkin, Inc., Corpus Christi, for appellant.
    Travis A. Peeler, Prichard, Peeler & Smith, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a judgment that decreed a divorce and divided the marital estate. The trial court submitted special issues to a jury and granted the divorce on the grounds that the marriage had become insupportable because of discord or conflict of personalities that destroyed the legitimate ends of the marriage relationship and prevented any reasonable expectation of reconciliation. There were no children of the marriage under the age of eighteen at the time of the judgment. The appellant-wife brings this appeal attacking as unconstitutional the grounds upon which the divorce was granted and complaining of an unequal division of the estate.

Virginia S. Hopkins and John F. Hopkins were married in Boise, Idaho, on March 10, 1944. At the time of the marriage John was a member of the United States Air Force. During approximately thirty years of marriage the parties lived in various states in the United States and foreign countries. He retired as an Air Force officer in 1963. On or about October, 1973, the parties separated and ceased to live together as husband and wife. Virginia initiated the divorce action in March of 1974. She alleged in her original petition as a ground of divorce that the marriage had become insupportable because of discord or conflict of personalities that destroyed the legitimate ends of the marriage relationship and prevented any reasonable expectation of reconciliation. John filed an answer and cross-action seeking a divorce upon the same grounds. Virginia subsequently moved for a nonsuit and the court proceeded to trial and judgment upon John’s cross-action.

The appellant first contends that Sections 3.01 (about insupportability) and 3.08 (about defenses abolished) of the Texas Family Code are unconstitutionally applied to the dissolution of her marriage because these statutes destroy vested marital assets without due process, without compensation and without fault on her part. She further argues that she had a vested right to offer the defenses of recrimination and adultery in a suit for divorce and the elimination of these defenses by Section 3.08 may not be retroactively applied to her. In support of this argument she relies upon the case of Click v. Seale, 519 S.W.2d 913 (Tex.Civ.App.-Austin 1975, no writ).

We are not persuaded that Click v. Seale, supra, is controlling of the present case. In Click, the plaintiff sought to compel specific performance of an option contract which was entered into at a time when the defendant was under coverture and the existing law provided that the defendant wife had the option to repudiate the contract and to refuse to perform. Reasoning that by implication parties to an agreement make the law a part of their agreement, the court held that the wife’s defense of coverture was a substantive right which was conferred by the then existing law and that right could not be defeated by a subsequent amendment of the law. In Click, all of the essential facts giving rise to the defense of coverture arose before the law was changed. That is, the defense was a vested right and not a mere expectancy. To have denied the vested right, would have materially altered the contractual obligations of the parties. The Texas Constitution prohibits the retroactive application of legislative enactments which affect the substantive rights of individuals or impairs the obligation of contracts. Tex. Const, art. I, § 16. In the present case, however, the defense of recrimination or adultery was not a vested right. The suit for divorce was not brought prior to the enactment of Section 3.08. The possibility that the appellant would assert these defenses was nothing more than a contingency. Additionally, the business contract in Click may not be equated with the marriage contract in the present case. The parties in the present case are clearly domiciled in Texas and thus they are subject to the divorce laws of this State. The state legislature has the broad power to regulate and thereby change the conditions for obtaining a divorce by its residents. Texas does not regard the marital relationship as a contract vesting rights in the parties so as to preclude the retroactive application of amendments to the laws which govern that relationship. McGinley v. McGinley, 295 S.W.2d 913 (Tex.Civ.App.-Galveston 1956, no writ). See LeFebvre v. LeFebvre, 510 S.W.2d 29 (Tex.Civ.App.-Beaumont 1974, no writ); Pappas v. Pappas, 146 S.W.2d 1115 (Tex.Civ.App.-Fort Worth 1941, no writ); Young v. Young, 41 S.W.2d 367 (Tex.Civ.App.-Austin 1931, no writ). It is not error for a Texas Court rendering a decree of divorce to apply the no fault divorce law of this State although the marriage dissolved was celebrated in a sister state and the law of the sister state at the time of the marriage did not provide for no fault divorce. Smitheal v. Smitheal, 518 S.W.2d 842 (Tex.Civ.App.-Fort Worth 1975, no writ), cert. denied, 423 U.S. 928, 96 S.Ct. 277, 46 L.Ed.2d 256. See Ryan v. Ryan, 277 So.2d 266 (Fla.1973); 23 A.L.R.3d 626.

The appellant’s constitutional argument that she had been deprived without due process of vested personal property rights in the marital estate, namely, the medical benefits to which she was entitled to as the wife of a retired Air Force officer, must also fail. The basic requirements of due process are notice and hearing. Martinez v. Texas State Board of Medical Examiners, 476 S.W.2d 400 (Tex.Civ.App.-San Antonio 1972, writ ref’d n. r. e.). The appellant does not contend nor does the record reflect that she was not afforded adequate notice or a fair hearing. Indeed, it appears that she was protected in both regards.

We are also of the opinion that there has not been an unconstitutional taking of property without compensation. The grounds upon which the divorce is granted and the defenses to the divorce which a spouse may raise do not affect the rules of law as to the division of the marital estate. Texas law provides that upon granting a decree of divorce the court shall divide the marital estate having due regard to the rights of each party. Tex.Family Code Ann. § 3.63 (1975). The trial court must begin by establishing the nature of the property to be divided as separate or as community. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.-Houston [1st Dist.] 1974, no writ). Among the things which a court may consider in dividing the estate is the benefits the innocent spouse would have received from a continuation of the marriage. Currie v. Currie, 518 S.W.2d 386 (Tex.Civ.App.-San Antonio 1974, writ dism’d). Such a consideration would encompass the medical benefits of which the appellant complains. A monetary value may be assigned to each asset comprising the marital estate. Although the division does not have to be equal, an unequal division must be supported by some reasonable basis. Cooper v. Cooper, supra. These safeguards and others are sufficient to preclude an unconstitutional taking of property without compensation. The appellant’s constitutional arguments are overruled.

The appellant contends that the court erred in dividing the property of the parties because: the division arbitrarily awarded to the appellant a grossly disproportionate share of the community assets which resulted in a manifestly unfair and unjust judgment; the appellant was awarded a grossly inadequate sum because there is no evidence to support the dollar amount awarded to the appellant as her share of the community assets; the court failed to consider all of the community assets; the court failed to consider the disparity in earning capacity, the disparity of education and business experience, and the health of the parties. The judgment recites, however, that the division of the marital estate is made with due regard for the rights of each party. Our initial presumption in reviewing a court’s division of the marital estate is that the court correctly exercised its discretionary powers. It is not required that the division be equal and a party that would seek to set aside the ruling must show a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.Sup.1974); Elrod v. Elrod, 517 S.W.2d 669 (Tex.Civ.App.-Corpus Christi 1974, no writ). In fact, in our case there is sufficient evidence in the record, if believed, to sustain a value slightly greater for the property awarded to the appellant-wife than for that property awarded to the appellee-husband; that is, $115,384.15 to her compared to $115,160.85 to him. After a careful review of all the evidence we are unable to say that the division constitutes a manifestly unfair or unjust judgment. There is no indication that the court failed to consider all of the evidence that was before it. We hold that the appellant has not shown error in the division of the estate.

The appellant further contends that the trial court erred in failing to award the appellant attorney’s fees in the amount of $7700.00. In response to the submission of special issue the jury: refused to find that it was necessary for the appellant to employ an attorney to protect her rights in the divorce suit; refused to find that she retained attorneys to represent her in good faith; refused to find that she had funds to pay attorney’s fees; and found that $7700.00 would be a reasonable, attorney’s fees for her counsel in the present suit. The fee of an attorney is but another element for the court to consider in dividing the marital estate. The allowance, or not, of attorney’s fees and the amount, if any, to be awarded is within the sound discretion of the trial court. In Matter of Marriage of Jackson, 506 S.W.2d 261 (Tex.Civ.App.-Amarillo 1974, writ dism’d); Zamba v. Zamba, 498 S.W.2d 695 (Tex.Civ.App.-Corpus Christi 1973, writ dism’d). Jury answers to special issues about dividing the marital estate of spouses in a divorce suit are advisory only and the court may in its discretion disregard the jury findings. Cockerham v. Cockerham, 514 S.W.2d 150 (Tex.Civ.App.-Waco 1974), rev’d in part on other grounds, 527 S.W.2d 162 (Tex.Sup.1975). We hold that the appellant has not carried her burden of showing an abuse of discretion in the court’s decision not to award attorney’s fees.

The appellant also contends that the court erred in failing to consider the fraudulent concealment and dissipation of marital assets. The jury refused, however, to find that there was any fraud, concealment or dissipation of assets. The appellant urges that there is an abundance of evidence in the record that much property was transferred, dissipated or concealed. Even if we were to find, which we do not, that the jury’s answers in this regard were against the great weight and preponderance of the evidence, we are unable to find that the trial court failed to take this into consideration in dividing the estate. The court received evidence upon the issue and special issues on the matter were submitted to the jury. We hold, therefore, that the appellant has not shown an abuse of discretion.

The appellant contends that the trial court erred in submitting an incorrect definition of fraud. The appellant submitted a suggested definition of fraud which was granted as modified by the court. The appellant failed, however, to level any objection to the definition (modified) as it was submitted. When the court gives a definition, a party who is not satisfied must file an objection specifically and clearly pointing out the deficiency or the objection is deemed waived. Rule 274, T.R.C.P.; Yellow Cab & Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92 (1955). We hold that the appellant has waived any objection that she may have had to the definition of fraud as it was submitted by the court.

The appellant also argues that the trial court erred in refusing to submit a requested special issue which inquired whether John Hopkins had dissipated any cash in his bank account. The record does not reflect that the appellant objected to the charge of the court pointing out the failure to include the requested special issue. The appellant has therefore waived the objection and the error, if any, does not constitute a ground for reversal. Rule 274, T.R.C.P.; Stuckey v. Union Mortgage & Investment Company, Inc., 383 S.W.2d 429 (Tex.Civ.App.-Tyler 1964, writ ref’d n. r. e.).

Finally, the appellant contends that the trial court erred in refusing to permit her full discovery. Specifically, she urges that the court should have ordered John Hopkins to secure at his own expense copies of all cancelled cheeks and bank statements spanning a period of about two years. The cost of reproduction was estimated to be approximately $1000.00. In the alternative, she urged that the cost of securing these items be charged against the community funds. She contended that these documents would enable her to establish the fraudulent conduct of John Hopkins in dissipating the community funds. Hopkins explained that it was his practice to retain for his personal records only those cancelled checks which he considered necessary for tax purposes. The court did, however, order Hopkins to produce for inspection the cancelled checks and bank statements which were in his possession but at the same time refused to require him to obtain at his expense the missing bank records. Further, the court authorized appellant to obtain those instruments, but at her own expense.

For a thing or document to be subject to discovery under Rule 167, T.R. C.P., it must be in the custody, control or possession of a party to the suit. The trial court has wide discretion in ordering discovery and unless there is shown an abuse of discretion his ruling will not be disturbed. Cutler v. Gulf States Utilities Company, 361 S.W.2d 221 (Tex.Civ.App.-Beaumont 1962, writ ref’d n. r. e.). The missing records of which the appellant complains were in the custody, control and possession of the bank. Under these circumstances the court did not abuse its discretion in refusing the demand of the appellant. All of the appellant’s points of error have been by us considered and are hereby overruled.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    June Benjamin INMAN and Robert H. Stromstedt, Appellants, v. Michael PADREZAS and Joe Pasowicz, Appellees.
    No. 1079.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.

      Wm. DeWitt Alsup, Alsup & Alsup, Corpus Christi, for appellants.
    Anthony Field Constant, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

This is an appeal from a judgment granting a permanent injunction on behalf of appellees, Michael Padrezas and Joe Pasow-icz, against appellants, June Benjamin In-man and Robert H. Stromstedt. Trial was before the court without the intervention of a jury. The trial court rendered judgment that the property in question was part of a public easement granted to the public and that defendants are therefore perpetually enjoined and restrained from obstructing or interfering in any manner the free passage and use by the public on said property. The trial court ordered appellant Inman to remove the fences or any obstruction then erected on the property. From this judgment the defendants have duly perfected their appeal to this Court.

The property in question is located in what is known as Tropic Isles Subdivision in Corpus Christi, Nueces County, Texas. The particular area of which we are concerned is Block 8, Lot 16 and 17 of said Subdivision. No other lots or blocks in the Subdivision are affected by this Opinion. A plat or diagram of the lots and area involved, not necessarily drawn to scale, is incorporated herein for the purpose of clarity and to show the location of the various lots owned by the parties herein involved. This plat will be referred to hereafter.

The plaintiffs are Michael Padrezas and Joe Pasowicz. Mr. Padrezas is the owner of Lot 19 and Mr. Pasowicz is the owner of Lot 15 located in Block 8 of the Tropic Isles Subdivision. The defendants are J. B. In-man, who owns Lot 17 and Mr. Stromstedt, who, although having no present property interest in Tropic Isles Subdivision, did at the time the subject controversy arose own Lot 16 of Block 8 of said Subdivision. The defendants’ lots are (as the diagram illustrates) located at the end of and front on Biscayne Cove. Biscayne Cove is a waterway or canal. The end of the Cove forms a part of a circle with Lots 14, 15, 16, 17, 18 and 19 fronting on the circle. The waterway opens through a series of channels throughout the Subdivision into the Laguna Madre behind Padre Island. The plat of the Tropic Isles Subdivision was filed in the deed records of Nueces County in April, 1956. Prom the plat, it appears that the original owner of the Subdivision was Edwin Plato Company, Inc. which made the following dedication:

“THE STATE OP TEXAS:
KNOW ALL MEN BY THESE PRESENTS
COUNTY OP NUECES:
that the Edwin Flato Co., Inc., a Texas Corporation is the owner and Eugenia Walsh, joined by her husband, is the lien-holder of all lands embraced within the boundaries of ‘Tropic Isles’, an addition in Nueces County, Texas, as shown, on the annexed plat of same and we do hereby adopt the same as ‘Tropic Isles’, an addition in Nueces County, Texas.
The Tropic Isles Main Channel and the Coves which provide a means of access by water to each of the lots in the addition are hereby dedicated to the public forever. The Laguna Shores Road as shown hereon in the correct position as located on the ground and the drives and roads are all dedicated to the public for the use as such.
This map is made for the purpose of dedication and description.
This the 23rd day of April. 1956.”

In 1969, Jon Held Homes, Inc. purchased the property known as Tropic Isles Subdivision. On December 7, 1971, Inman purchased Lot 17 of Block 8 from Jon Held Homes, Inc. The other defendant Strom-stedt, purchased Lot 16 on March 24, 1972. The defendants’ lots as the plat shows are contiguous to each other. At the water’s edge on each lot is located a concrete bulkhead several feet in width. The area in controversy comprises the bulkhead on Lot. 17.

The plaintiffs, Pasowicz and Padrezas, purchased their lots in April of 1972, and February of 1973, respectively. Pasowicz owns Lot 15 and Padrezas owns Lot 19. Lots 15 and 19 are opposite each other and separated by the water in Biscayne Cove. Each of the parties has a home on his respective lots. The depth of the water in the Cove is approximately four feet deep.

When Stromstedt first moved into the area, no fences had been erected by any of the property owners on Block 8 and the bulkheaded area around the end of the Cove was clear and free from any obstructions. That area was frequently used as a passageway or walkway for property owners visiting other landowners on either side of the Cove. In fact, the record shows that plaintiffs frequently used this area around the end of the Cove to visit each other.

In 1973, the owner of Lot 18 (a Mr. Hensley) erected a chain link fence along his property lines, separating his lot from Lot 19 and Lot 17. This fence, however, did not go all the way down to the water’s edge, but stopped several feet before reaching the bulkhead. The owner, however, erected gates which crossed over the bulkhead thus preventing anyone from walking along the bulkhead around the Cove on Lot 18. In September or late August of 1973, defendant Inman also erected fences and gates across the bulkhead contiguous to his land. One gate being located across the bulkhead between Lots 17 and 18 and the other across the bulkhead between Lots 16 and 17. These fences prevented anyone from walking around the inside end of the Cove over the bulkhead. Later, defendant Stromstedt erected a fence or gate across the bulkhead at a point between Lots 15 and 16 also preventing passage around the inside edge of the Cove. Prior to selling his property (Lot 16), Stromstedt removed the fence between Lots 15 and 16 which blocked the bulkhead.

The only area on the bulkhead at the end of the Cove which remained blocked at the time of trial was that portion of the bulkhead between Lots 16 and 18. This is the area in dispute. It consists of a tract of land approximately four (4) to eight (8) feet wide beginning at the water’s edge on Lot 17.

The gates as initially erected by Inman were not fixed but had a movable latch allowing them to swing back and forth. Because of the continuous traffic around the bulkhead on Lot 17, and with people leaving the gates open, Inman locked the gates by chaining them shut. The record shows that the chain was broken several times. Padrezas admitted to having cut the chain on one occasion. Criminal charges were filed against him for such act. It can, therefore, be seen the animosity existing between the plaintiffs and defendants.

In order to be certain about their right to block off that portion of the bulkhead, each defendant obtained a quit claim deed from Jon Held Homes on December 13, 1973, purportedly covering the disputed area, i. e., down to the water’s edge and including the bulkhead.

The dispute continued, however, with increased bad feelings between the parties. The plaintiffs contended that the bulkhead-ed area was always included within the public dedication and defendants contending that the bulkheaded area was within their property lines which afforded them the right to erect a fence across the bulkhead.

On November 20, 1974, plaintiffs (owners of Lots 15 and 19) filed suit against the defendants (owners of Lots 16 and 17) alleging that the bulkheads were within the public dedication of Biscayne Cove and that such area does not form any part of their Lots 16 or 17 and, therefore, defendants have no right to block the bulkhead in any way. Plaintiffs contend that unless the acts and conduct of defendants are enjoined, they will suffer irreparable damage and injury as they have no adequate remedy at law. Plaintiffs further alleged that the defendants instituted criminal proceedings against Padrezas maliciously and without reasonable or probable cause resulting in Padrezas being damaged in the sum of $10,000.00.

The defendants answered specifically denying that the bulkheads in question form any part of any public dedication of record and that such bulkheads are the private real estate of defendants and not subject to public use. The parties agreed that Padre-zas’ action against defendants for malicious prosecution should be severed from the in-junctive action and the trial court, therefore, severed the malicious prosecution action from this suit and proceeded without a jury to hear the action for an injunction. The trial court rendered judgment holding that the property in question was a part of a public easement granted to the public by the dedication of the Tropic Isles Subdivision; the court perpetually enjoined and restrained the defendants from obstructing or interfering in any manner the free passage and use by the public over the area in controversy; and ordered defendant Inman to immediately remove the fences and any other obstructions then erected on the said property. From such judgment, the appellants have duly perfected their appeal to this Court.

In the instant case, no specific findings of fact were requested and none were filed. Under such circumstances, it is presumed upon appeal that the trial judge found every issue of fact necessary to sustain the judgment when such fact issue is raised by the pleadings and it finds support in the evidence. Buchanan v. Byrd, 519 S.W.2d 841 (Tex.Sup.1975); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951); Mobil Oil Company v. Dodd, 515 S.W.2d 351 (Tex.Civ.App.-Corpus Christi 1974, no writ); Giles v. Wiggins, 442 S.W.2d 839 (Tex.Civ.App.-Port Worth 1969, writ ref’d n. r. e.).

The appellants bring forward on appeal nine points of error. In their points 1 and 2, they assert that the trial court erred in granting the injunction because there was no evidence or insufficient evidence that the dedicating grantor (Plato Company) had title to the realty involved (the bulk-headed area) in the alleged dedication.

As we understand appellants’ contention with reference to the first two points of error, they assert that the plaintiffs, although proving a dedication, failed to prove that the title to the dedicated property was originally in the grantors, that being Edwin Plato Co., Inc.

A no evidence point of error is a question of law, and in considering the question, it is the duty of this Court to view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of the judgment and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.Sup.1972). In deciding an insufficient evidence point, this Court is required to consider all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Plaintiffs introduced into evidence their Exhibit 1 which was a true and correct copy of a dedicatory plat of Tropic Isles Subdivision which had been on file in the Nueces County Clerk’s Office since April 27, 1956. On the plat, there appears the following statement:

“That the Edwin Flato Co., Inc., a Texas Corporation is the owner and Eugenia Walsh, joined by her husband, is the lien-holder of all lands embraced within the boundaries of ‘Tropic Isles’, an addition in Nueces County, Texas, as shown on the annexed plat of same and we do hereby adopt the same as ‘Tropic Isles’, an addition in Nueces County, Texas. The Tropic Isles Main Channel and the Coves which provide a means of access by water to each of the lots in the addition are hereby dedicated to the public forever. The Laguna Shores Road as shown herein in the correct position as located on the ground and the drives and roads are all dedicated to the public for the use as such.
This map is made for the purpose of dedication and description.
This the 23rd day of April, 1956.
Edwin Flato Co., Inc.
By s/s Fred Flato_
Fred Flato, President”

(Emphasis supplied.)

Plaintiffs also introduced into evidence deeds by which they, as well as the defendants, obtained their property. Each deed referred to the plat on file with the County Clerk. The evidence shows that all the parties bought their lots by deeds, each referring to the plat. Other lots were sold by deeds also referring to the plat. All of this is some evidence showing that title to the property dedicated (whatever it may have included) was in the dedicators at the time of the dedication. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950).

Appellants rely on the cases of Gladewater Lumber & Supply Co. v. City of Gladewater, 87 S.W.2d 527 (Tex.Civ.App.-Texarkana 1935, no writ) and Chenowth Bros. v. Magnolia Petroleum Co., 129 S.W.2d 446 (Tex.Civ.App.-Dallas 1939, writ dism’d jdgmt. cor.) In the Gladewater Lumber Company case, supra, the plaintiff was held to have the burden of establishing title in the dedicator to the street, upon which depended the plaintiff’s right to recover. The Supreme Court in Adams v. Rowles, supra, expressly disapproved the Gladewater Lumber Company case. The Supreme Court in referring to Chenowth Bros. v. Magnolia Petroleum Co. case stated: “The Supreme Court expressly refused to approve the law points involved, but only approved the result reached by noting on the application for the writ ‘Dismissed Correct Judgment.’ ”. The evidence in the Che-nowth Bros, case affirmatively showed absence of title on the part of two of the dedicators. The case held there was never any acceptance of the proposed dedication. The above cases are not in point and provide no authority for appellants’ propositions. We hold that there was sufficient evidence to show that title to the property dedicated was in the dedicator at the time the dedication was made. No contrary proof of ownership of the dedication was shown. Appellants’ points of error 1 and 2 are overruled.

Appellants by their third point of error raise the question as to whether the disputed area was included in the dedication. The point of error reads: “Appellants would show the Court that there is no credible evidence of a survey showing with exactness the disputed area to actually be within the metes and bounds description of the alleged dedication.” This point raises a no evidence point and, therefore, as stated above, we are required to view the evidence in the most favorable light, considering only the evidence and reasonable inference drawn therefrom in support of the judgment and disregard all evidence and inferences to the contrary. Garza v. Alviar, supra.

The burden here was on the plaintiffs to prove that the disputed area was within the public dedication. The plat (Exhibit 1 inserted in this Opinion) shows that at the end of Biscayne Cove a half circle is formed with an arc of 180 degrees and a radius of 50 feet from the center of the cove. The disputed area comprises a strip of land apparently four (4) to eight (8) feet in width from the water edge and 39.27 feet in length. Neither party to this lawsuit obtained the services of a surveyor to accurately settle the dispute. It cannot be determined from the plat on file, the deeds introduced in evidence, or the surveys of other lots within the subdivision, whether or not the disputed area is included within the dedicated area or was included within the dimensions of Lot 17.

One of the plaintiffs, Padrezas, testified that after the erection of the gates on Lot 18 which blocked the bulkhead, he began making measurements of the area to determine if the disputed area was part of Lot 17 or whether it was included in the dedicated area. He was questioned about the measurements:

“A Yes. I would say probably in after August and possibility of September through — -actually, even into December, I was taking physical measurements of Lot 19, which is my property.
Lot 18: I completely measured it. I completely measured Lot 15; physically measured all these lots. Also, during this time period, I physically measured the lengths of the bulkhead, the distance between the bulkhead and the fence, and then actually went into the water to measure the width of the cove at the radius, and from the plat determined roughly where the center line of the cove was and measured from the center line of the cove to the point where Lot 17 and 16 meet and was able to determine that they were within this fifty-foot radius.” (Emphasis supplied.)

Padrezas testified that the bulkhead was built within the fifty-foot radius of what the Cove was platted at. In making this determination, Padrezas first found the center of the Cove by stretching a line between a point where Lots 18 and 19 met and a point where Lots 14 and 15 meet. Upon stretching a line between those two points, he found the middle of the Cove and from that point measured the fifty-foot radius which he states included all of the bulkhead contiguous to defendants’ property. This testimony constitutes some evidence, primitive as it may be, that the bulkheaded area was included within the area dedicated to the public. There was other evidence to the contrary. However, we do not need to consider it since the appellants did not have any insufficient or greater weight of the evidence points of error. Appellants’ third point of error is overruled.

Appellants in their fourth point state: “Appellants would show the court that the trial court erred in granting judgment of injunction to appellees because of the language of the alleged dedication giving access by water, appellees admittedly having other access by public streets to each others’ property and by the failure to balance the equities of the parties.”

Appellants’ point as above phrased does not comply with the briefing rules as set out in Rule 418, T.R.C.P. We consider the point as being multifarious and too general to comply with the general briefing rules. A point of error is multifarious if it embraces more than one specific ground of error. Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App.-Corpus Christi, 1974, no writ); City of Shamrock v. Hrnciar, 453 S.W.2d 898 (Tex.Civ.App.-Eastland 1970, writ ref’d n. r. e.); Johnson-Sampson Construction Co., Inc. v. W & W Waterproofing Co., 274 S.W.2d 926 (Tex.Civ.App.-Amarillo 1953, writ ref’d n. r. e.).

Even though it has long been the policy of this Court to indulge a liberal construction of the briefing rules and to give effect thereto, we cannot determine with any degree of certainty the nature of this point of error. Appellants restate the points of error 3 and 4 followed by a single section designated “Argument and Authorities”. Appellants’ entire argument and citation of authorities relate to point of error 3 only. We can find no argument or authorities in support of point of error 4. Although the rules are to be given a liberal construction to the end that a just, fair, equitable and impartial adjudication of the rights of the parties may be obtained, a sufficient compliance with the rules is necessary to justify consideration of the point of error. This has been made mandatory by our Supreme Court. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). See also Leal v. Aluminum Company of America, 443 S.W.2d 942 (Tex.Civ.App.-Corpus Christi 1969, no writ); Rule 418, T.R.C.P. Therefore, in light of the appellants’ failure to distinctly and separately point out the error complained of and to properly support such complaints by argument and authorities, the point of error (No. 4) cannot be considered by this Court. Rule 418, T.R. C.P. Barber v. Corpus Christi Bank & Trust, supra. It is accordingly overruled.

The appellants by their fifth and sixth points of error assert that the trial court erred in granting the injunction because plaintiffs wholly failed to show any peculiar or irreparable damage to themselves and because of the availability of a legal remedy.

An injunction is a pure application of equitable relief. One seeking injunctive relief must plead irreparable injury and/or that he has no adequate remedy at law, and/or that irreparable injury is threatened. Plaintiffs satisfactorily allege that they will suffer irreparable damage and injury unless the acts and conduct of defendants complained of are enjoined and that they have no adequate remedy at law.

An irreparable injury is an injury of such a nature that the injured party cannot be adequately compensated, or that the damages which result therefrom cannot be measured by any certain pecuniary standard. Southwestern Chemical & Gas Corporation v. Southeastern Pipe Line Company, 369 S.W.2d 489 (Tex.Civ.App.-Houston 1963, no writ); Gulf Oil Corporation v. Walton, 317 S.W.2d 260 (Tex.Civ.App.-El Paso 1958, no writ); Wilson v. Whitaker, 353 S.W.2d 945 (Tex.Civ.App.-Houston 1962, no writ); Lowe & Archer, Injunctions and Extraordinary Proceedings, Sec. 114, p. 157.

Pasowicz testified that the erection of the fences was a nuisance in general. He further testified as follows:

“Q Mr. Pasowicz, you have in your petition here said that you have or will suffer irreparable damage and injury unless these fences are taken down. Now, would you just tell us what irreparable damage and injury you have suffered or will suffer? You have told us that you can walk around on the street way or the edge of the street to visit with friends and neighbors throughout that neighborhood, and will you just tell us in the light of that just what irreparable damage and injury you’ll suffer.
A Two points I’d like to make on that is, number one, I have had access across this property. The second one, I fear injury to a child, mine or others, out there that we can see. Things do occur. We’re unable to assist a child if a child should be injured across the channel as mine have, as others probably will be. It is just a hazard out there as far as I’m concerned.”

Pasowicz testified that on one occasion, his daughter was injured across the Cove from their home near Lot 19 and to get home, she had to run all the way around the homes on the outside. He stated that his primary fear was that if a child had been hurt over there, he could not get her assistance or she could not get home in due time. Padrezas, the other plaintiff, testified that he, his neighbors and numerous children used the walkway consistently prior to the gates being erected. He testified that at the time of trial, he noticed that children were going around the gates and “like I say, the danger is still there.”

The record in this case contains ample evidence to show the irreparable nature of the injury to plaintiffs. Appellants’ point of error 5 is overruled.

We now come to the question of whether there was an adequate remedy at law other than the granting of the injunction. Appellants assert that where title to land is the basis of the dispute, injunction is not the proper remedy when the legal remedy of trespass to try title is available. Bruce v. Moore, 277 S.W.2d 199 (Tex.Civ.App.-Waco, 1955, no writ); Fant v. Massie, 451 S.W.2d 774 (Tex.Civ.App.-Austin 1970, writ ref’d n. r. e.); Patten v. Quirl, 447 S.W.2d 470 (Tex.Civ.App.-Dallas 1969, writ ref’d n. r. e.); McMahon v. Fender, 350 S.W.2d 239 (Tex.Civ.App.-Waco 1961, writ ref’d n. r. e.). These authorities are not in point. Here, the plaintiffs claimed no title to the disputed tract. The primary issue being only whether the disputed tract was included within the dedicated area. It should also be noted that defendants did not raise the above claim in their pleadings or during trial, but have raised this question for the first time on appeal. The sixth point of error is overruled.

In appellants’ points of error 7, 8 and 9, they assert that the granting of the injunction was improper because the use of the disputed area constituted a deviation or misuse of the property in violation of the terms of the dedication, resulting thereby in an abandonment of the disputed area (even if it can be conceded that the area was within the alleged dedication). The dedicatory language provided in part:

“The Tropic Isles Main Channel and the Coves which provide a means of access by water to each of the lots in the addition are hereby dedicated to the public forever.”

It is well settled that abandonment of dedicated property occurs where the use for which the property was dedicated becomes impossible of execution, or the object of the use wholly fails. In general, misuse does not constitute abandonment unless the dedicated use becomes impossible. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950); Compton v. Thacker, 474 S.W.2d 570 (Tex.Civ.App.-Dallas 1971, writ ref’d n. r. e.). Here, the appellants failed to raise by either their pleadings or the evidence the facts of misuse or deviation sufficient to constitute an abandonment. There was no showing by appellants that the use for which the property was dedicated, i. e., to provide a means of access of water to each of the lots, became impossible. Therefore, appellants’ points of error 7, 8 and 9 are overruled.

The judgment of the trial court is AFFIRMED.

      . Early surveyors along the Rio Grande River used primitive surveying methods including a “cordel” which was the waxed string or rope 50 varis in length to measure the various portions. See Strong v. Delhi-Taylor Oil Corporation, 405 S.W.2d 351 (Tex.Civ.App.-Corpus Christi 1966, writ refd n. r. e.).


text:
    Robert R. JOINES et ux., Appellants, v. Kathleen BURKE, Appellee.
    No. 1034.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.

      Daniel E. Hayes, Uher & Hayes, Bay City, for appellants.
    James R. Clark, Black, Hebinch, Har-grove & Clark, Houston, for appellee.
   OPINION

NYE, Chief Justice.

This is a declaratory judgment suit brought by the plaintiffs, Robert R. Joines and wife, Nettie Mae Joines, against defendant, Kathleen Burke, seeking to obtain a judgment declaring that a contract for the sale of certain real property belonging to the plaintiffs located in Jackson County, Texas, was unenforceable, null and void. Trial was before the court without intervention of a jury. The trial court entered judgment declaring that the contract, made the basis of this suit, obligated the defendant purchaser, at her expense and upon her initiative, to undertake a title suit (the same referred to in the contract). The court found that the delay in initiating the suit was not unreasonable nor was it undue delay. The effect of the judgment was to deny the plaintiffs sellers the relief sought and left the parties where the court found them, i. e. both the sellers and purchaser subject to the contract. From this judgment, the plaintiffs (sellers) have duly perfected their appeal.

The plaintiffs reside on approximately 100 acres of land located in a townsite of Francitas in Jackson County, Texas. Plaintiffs have lived on the land since April of 1927. Plaintiffs’ title to the land was alleged to be a limitation title as opposed to record title. On November 18, 1969, the plaintiffs entered into a contract for sale of the land with the defendant. The contract provided that the plaintiffs would sell and convey such property to the purchaser for $125.00 per acre, payable by the purchaser upon the entry of a final judgment adjudicating title to the subject property to be vested in the sellers. The contract, under the heading “Special Conditions” had the following provisions:

“It is recognized that Seller has a limitation title as opposed to record title and Seller agrees to cooperate with Purchaser at all reasonable times and places in an effort to diligently obtain a judgment of the District Court of Jackson County, Texas awarding legal title to Seller so that this contract may be consummated as rapidly as possible.”

The sellers complain of the trial court’s refusal to set the contract aside because of the unreasonable delay of the purchaser in performing her part of the contract. The evidence before us is relatively undisputed, but it is unclear in some instances because the sellers (appellants) failed to include in this record some of the exhibits introduced into evidence in the trial court.

After the execution of the contract (November 18, 1969), the purchaser hired the County Surveyor, Mr. Atkins, to survey the subject property. The exact date the purchaser hired Mr. Atkins does not appear in the record, but on June 2, 1970, the survey appears to have been completed. During this time, the purchaser had also begun doing some title research work herself and by the time the survey had been completed, she had examined the title to eight (8) blocks of the subject property. The property to be conveyed under the contract was a part of an old subdivision out of the original townsite of Francitas, Texas. The total acreage was about 100 acres which the sellers had under fences. The sellers reserved 10 lots in one certain block of the townsite. The record indicates that there were numerous record owners of the lots and blocks that made up the 100 acre tract. Although the sellers reserved and excepted from the sale, 10 lots in one particular block, the purchaser was to clear the title to this particular excepted tract simultaneously with the other property.

On September 21, 1970, some 10 months after the execution of the contract, an attorney then retained by the sellers wrote a letter to the purchaser in which he stated:

“I would suggest to you (purchaser) and Mr. Joines (seller) that you release your contract with him at once, as he has a buyer who will take the property title as is. Let us hear from you at once.”

Sometime around May 4, 1971, the purchaser retained this same attorney as her attorney for the purpose of completing the title research work necessary for the filing of the trespass to try title suit.

This attorney testified that such work was performed in the fall and winter of 1971 through February 1972. The purchaser testified that at that time, the attorney told her that the necessary research work on the title to this property had been completed and that he was ready to file the suit. The attorney notified the purchaser that the cost of the lawsuit had increased approximately $2,000.00 due to the increased number of defendants requiring service. Even in view of the increased cost, the purchaser requested that the attorney should go forward with the lawsuit. The attorney then declined because he did not want to file the suit as a number of the probable defendants were clients of his. He suggested that another attorney file the suit. The purchaser agreed.

About one month later on March 16,1972, the sellers received a letter from the first attorney, a Mr. Hamblen, wherein Hamblen stated that the purchaser was willing to go ahead with the deal, or she would turn the property back to the sellers upon the payment to her of $3,000.00 which she claimed she had put into the property. In April 1972, the purchaser received a letter with a quit claim deed enclosed from the sellers requesting that she sign the quit claim deed thereby releasing the contract of sale and removing cloud on the sellers’ property. (The contract of sale had been placed of record.) The purchaser refused to sign the same.

Hamblen testified that prior to the March 16,1972, letter, he assumed from the sellers’ attitude that the sellers were not going to cooperate in the bringing of the title suit. He further testified that as early as September of 1970, while the title research work was going on, the sellers contacted him and stated that they did not want to go through with it; that they had found another purchaser. The record shows that the purchaser never filed a trespass to try title suit.

On January 17, 1973, the plaintiffs (sellers) filed this lawsuit against the defendant, purchaser. In plaintiffs’ first amended petition, they assert among other things that the contract for sale is invalid or should not be unenforceable because the purchaser materially breached the contract by failing to close the transaction within a reasonable length of time after the execution of the same. In this connection, plaintiffs alleged that purchaser waited approximately two (2) years to commence the title research necessary to file a title suit and that by the time purchaser tendered performance, circumstances had so altered that the reasons that prompted plaintiffs to make the contract no longer existed. The plaintiffs prayed that the trial court enter judgment declaring the contract unenforceable and null and void and that such constitutes a cloud on plaintiffs’ title.

The purchaser answered asserting that prosecution of the action to obtain the judgment referred to in the contract was beyond her sole control and the failure to obtain such judgment was not due to any action or inaction on her part, but resulted from other causes beyond the control of the purchaser, including the lack of cooperation in the prosecution of such suit by the sellers. By way of cross-action, the purchaser prayed that she have judgment requiring sellers to specifically perform the contract or that she recover at least $10,350.45 in damages.

On September 13, 1974, prior to trial, plaintiffs moved for partial summary judgment contending that as a matter of law the contract obligated the defendant to undertake at her expense and upon her initiative the title suit referred to in the contract. On January 9, 1975, the trial court granted the summary judgment. Thereafter on a trial on the merits, the trial court entered judgment holding that although the purchaser was obligated to prosecute the title suit at her expense and initiative, the delay in initiating the suit was not unreasonable nor was it undue delay.

The sellers have appealed and bring forward only one point of error, that being “that the trial court erred in entering judgment that plaintiffs take nothing by their suit for the reason that the contract in question was not performed within a reasonable period of time.” Before proceeding to determine the merits of the above point of error, we must first determine whether the above point constitutes a legal (no evidence) or factual (insufficient evidence) insufficiency point of error. Appellant is asserting that “as a matter of law” appellee did not perform within a reasonable time. In appellants’ prayer for relief, they request that we reverse the trial court and render judgment for them. In light of the above, appellants’ point of error can only be considered as a no evidence point of error. Bee Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 363, 364 (1960).

Our primary question is, whether there is any evidence to sustain the finding of the trial court that the delay in initiating the title suit was not unreasonable nor was it undue delay. In determining whether there is in the record evidence of probative value to support the trial court’s finding, the appellate court must examine the evidence and view it most favorably to the judgment and draw all reasonable inferences from such evidence. Garza, v. Alviar, 395 S.W.2d 821 (Tex.1965); Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Bodine v. Welder’s Equipment Company, 520 S.W.2d 407 (Tex.Civ.App.-Corpus Christi, 1975, Writ ref’d n. r. e.).

The contract for sale had no exact time for performance specified in it. When a contract is silent as to the time of its performance (as is the case here), the law implies an agreement that it will be performed in a reasonable time. NHA, Inc. v. Jones, 500 S.W.2d 940 (Tex.Civ.App.-Fort Worth 1973, writ ref’d n. r. e.); H. L. McRae v. Lindale Independent School District, 450 S.W.2d 118 (Tex.Civ.App.-Tyler 1970, writ ref’d n. r. e.); Kleiman v. White, 476 S.W.2d 375 (Tex.Civ.App.-Austin 1972, writ ref’d n. r. e.); Houston County v. Leo L. Landauer & Associates, Inc., 424 S.W.2d 458 (Tex.Civ.App.-Tyler 1968, writ ref’d n. r. e.). The term (reasonable time) is a relative one, and its meaning differs according to the circumstances of each particular case including the nature and character of the thing to be done and the difficulties surrounding and attending its accomplishment. Houston County v. Leo L. Landauer & Associates, Inc., supra; Ridglea Interest, Inc. v. General Lumber Company, 343 S.W.2d 490 (Tex.Civ.App.-Fort Worth 1961, writ ref’d n. r. e.); Hamilton v. Shirley-Self Motor Co., 202 S.W.2d 952 (Tex.Civ.App.-Fort Worth 1947, writ ref’d n. r. e.).

In examining the evidence as it bears upon the finding of the trial court, it is clear to us that the judgment is supported by some evidence.

Shortly after the execution of the contract for sale, the purchaser hired the County Surveyor to accurately ascertain the amount of acreage held by the sellers and to cause the corner posts to be set. The subject contract provides:

“To correctly ascertain the acreage, Seller agrees to have said land surveyed and corner post set by a competent licensed surveyor and the amount of acreage shown thereby shall determine the sum of money to be paid.”

This survey had to be completed before the title research could be started. The survey was completed in 1970. The evidence shows that the purchaser personally had done some of the title work at the title company in Edna before she retained Mr. Hamblen as her attorney for the purpose of completing the title research. It should be noted here that Hamblen had represented the sellers prior to being employed by the purchaser. In February 1972, the required title research work had been completed by Ham-blen. About the time the title research had been completed, Mr. Hamblen notified the purchaser that the expected expense of the title suit had increased some $2,000.00 due to the increased number of defendants requiring service. This increased number of defendants indicates an increase in the complexity of the title research required. Even in view of the increased cost of the lawsuit, the purchaser requested that Mr. Hamblen go forward with the lawsuit.

Although a substantial period of time elapsed from the time the contract was executed to the time the sellers filed this lawsuit, such delay by the purchaser was shown to have been reasonable due to actions on the part of the sellers. The contract in part provides:

“ . . . Seller agrees to cooperate with Purchaser at all reasonable times and places in an effort to diligently obtain a judgment of the District Court . awarding legal title to Seller so that the contract may be consummated as rapidly as possible.” (Emphasis supplied)

Mr. Hamblen testified that prior to March 1972, he assumed from the sellers’ attitude that they were not going to cooperate in the bringing of the title suit. He further testified that as early as September of 1970, while the title research work was going on, Mr. Joines (seller) contacted him stating that he did not want to go through with it and that he had found another purchaser. Mr. Joines (seller) in his deposition stated that there were two different parties who wanted to buy the land.

In March 1972, the purchaser wrote Mr. Joines (seller) wherein she stated that she was willing to go ahead with the deal or she would turn the property back to him upon the payment of $3,000.00 which she claimed she had put into the property. In April 1972, sellers responded by sending a quit claim deed to the purchaser requesting that she sign the quit claim deed, thereby releasing the contract of sale and removing the cloud on sellers’ property. The purchaser refused to sign the deed. Mr. Hamblen also testified as to the necessity of cooperation from the sellers as follows:

“Q Okay, We have heard from another party what's involved as far as the research and the preparation of the pleadings and the notice and all of these matters in a trespass to try title suit. In your opinion, Mr. Hamblen, would it be possible for an attorney to successfully clear a title on a trespass to try title suit without the cooperation of the party so claiming the title?
A I don’t think so. Because he has to make a statement under oath that he’s claiming the title against all the world.”

Mr. Hamblen admitted in a prior deposition that Mr. Joines (seller) had told him that he would not appear and testify in court.

In view of the circumstances of this case, i. e., the lack of present and prospective cooperation by sellers and the difficulties surrounding and attending its accomplishment (prosecution of the title suit without sellers’ cooperation), we conclude that there was ample evidence of probative force to support the trial court’s judgment.

The judgment of the trial court is AFFIRMED.