author: TUNES, Chief Justice. CURTISS BROWN, Justice

text:
    CAPE CONROE LIMITED dba U. S. Land Development Company, et al., Appellants, v. Edith Mary SPECHT, Appellee.
    No. 1179.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 11, 1975.
    Rehearing Denied July 2, 1975.

      Michael K. Swan, Reynolds, White, Allen & Cook, Houston, for appellant.
    William Dean Leikam, Houston, for ap-pellee.
   MAJORITY OPINION

TUNES, Chief Justice.

This is a case wherein Edith Mary Specht, as the purchaser of two lots from Cape Conroe Limited, doing business as U.S. Land Development Co. and Ves-Tex Land Development, Inc., sued those sellers, Joe Reynolds, a limited partner of Cape Conroe Limited, and John L. Buvens, the trustee in a deed of trust securihg purchase money notes, for alleged violations of the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm.Code Ann., Chapter 17, Subchapter E, V.T.C.A. The case was tried to the court without a jury.

On October 12, 1972, the plaintiff and defendants entered into a written contract wherein plaintiff agreed to buy and defendants agreed to sell two lots in Cape Conroe subdivision. That contract contained the sellers’ guarantee that all paved streets, underground utilities, and certain recreational facilities would be completed by December 31, 1973, or the buyer would be refunded all monies paid plus ten percent interest. Later, at the plaintiff’s request, that contract was replaced by two other contracts, each relating to one of the two lots. The new contracts specifically recite that they replace the original contract of October 12. Those contracts also bear the date October 12,1972, but they were actually executed at a later date. The new contracts did not have in them the above mentioned guarantee or warranty as to the completion date for the utilities, streets and recreational facilities. On January 2, 1973, deeds, notes and deeds of trust were executed pursuant to these contracts.

There was evidence establishing the fact that appellants, by advertising media and orally, represented that the utilities, streets and recreational facilities would be completed by December 31, 1973. They were not so completed. On December 31, 1973, the plaintiff had paid $6,199.55 toward the purchase price of the lots. She demanded of the defendants the return to her of that sum, together with ten percent interest. The defendants refused to comply with her demand. The evidence showed, and the court found, however, that these representations were all made before May 21, 1973, the effective date of the Deceptive Trade Practices Act. The trial court concluded as a matter of law that the Deceptive Trade Practices Act did not apply to those representations and promises made before its effective date and declined to render judgment for the plaintiff for the measure of damages provided by the Act at Section 17.50 — that is, three times the actual damages together with court costs and attorney’s fees. It then concluded, as a matter of law, that “ . . . the pleadings of Plaintiff, taken as a whole, support a cause of action in favor of Plaintiff based upon a breach of contract theory.” He thereupon rendered judgment for plaintiff against the defendants, Cape Conroe Limited, doing business as U.S. Land Development Co. and Ves-Tex Land Development, Inc., for $6,819.55 with interest at six percent. The judgment, in effect, rescinds the purchase of the lots, restoring to the plaintiff the money she paid, relieving her of liability for the balance of the purchase price, and restoring to the defendants title to the two lots in question. The trial court rendered judgment that the plaintiff take nothing from the defendants, Reynolds and Buvens. Cape Conroe and Ves-Tex have appealed.

The appellants’ principal contention on their appeal is that the judgment rendered by the trial court is not supported by plaintiff’s pleadings. That contention is sustained.

Plaintiff proceeded to trial on her original petition. The opening words of that pleading read as follows:

This lawsuit arises out of the advertisement and sale of real property, concerning the general provisions of Chapter 17, Sub-Chapter E, Business and Commerce Code of Texas, otherwise known as the DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT (hereinafter called DTP-CPA).

In the body of her petition plaintiff listed seven specific acts of defendants on which her cause of action was based and alleged that each of them was a violation of a given section of the Deceptive Trade Practices Act. In her prayer she asked that she recover judgment for triple damages “. pursuant to the provisions of the Deceptive Trade Practices-Consumer Protection Act . .” She asked that she recover reasonable attorney’s fees “. . . pursuant to the provisions of the Deceptive Trade Practices-Consumer Protection Act . .” She asked for “. . . further relief, as provided for in the Deceptive Trade Practices-Consumer Protection Act . .” She asked for post judgment interest and had the usual prayer for general relief.

No language of plaintiff’s pleadings states that a contract arose between her and the defendants and that she is asserting a cause of action either under that contract or for its breach. During the oral submission of this case, counsel for plaintiff was asked to identify the contract upon which the trial court’s judgment could be sustained. He stated that it was the original written contract of sale, dated October 12, 1972, in which there was the written guarantee as to the completion of the utilities, streets and recreational facilities. This contention was made in spite of the fact that the only contracts plaintiff offered in evidence were those subsequently executed ones, each covering one of the two lots, omitting the written guarantee, and reciting in each that it “replaces” the contract of October 12, 1972. This contention was also made in spite of the fact that plaintiff’s counsel, in objecting to a question by defendants on cross-examination of the plaintiff, said: “There is no allegation made that she was relying on a written contract making this kind of guarantee of any sort.”

“The judgment of the court shall conform to the pleadings . . . .” Texas Rules of Civil Procedure 301. In this case the trial court erred in concluding that the plaintiff’s pleadings entitled her to recover damages for breach of contract or to a judgment rescinding sale of the property in question. In Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183, 191 (Tex.Sup.1964), the Court said: “That a plaintiff may not sustain a favorable judgment on an unpleaded cause of action, in the absence of trial by consent, is the general rule . .

The defendants’ attorney here specifically recited his objection to trial under any contract theory of recovery. When plaintiff offered in evidence the two contracts which recited that they replaced the contract of October 12, 1973, counsel for defendants said:

I want to state for the record and make it clear that I am not, by not objecting to this contract, waiving any objection as to trying this lawsuit on other theories. In his pleadings, as I understand it, he stated he is going strictly under the Deceptive Trade Practice Act. So he may have some other remedies, I don’t think his pleadings support that and I don’t want to sit here by consent and try it on some other issue, so for the limited purpose of whether it is under this act, I have no objection to it.

At another place in the record defendants’ counsel said, “Your Honor, may we have a running objection to all documentation and testimony occurring prior to May 21, 1973?” The court answered, “Yes, you may have your objection.”

Neither the language of plaintiff’s pleadings, nor any issues tried by consent justified the court’s rendition of a judgment for damages for the breach of, or upon, a contract nor a judgment rescinding any contract. For that reason the trial court’s judgment was erroneously rendered.

The trial court held as a matter of law that “. . . all representations, advertisements, statements of fact, guaranties or warranties made by any Defendants . were made prior to October 12, 1972.” The trial court declined to give the Deceptive Trade Practices Act a retroactive effect and held, as a matter of law, that the plaintiff was not entitled to judgment under its provisions. By cross-point the plaintiff asserts that the trial court erred in this holding. That cross-point is overruled.

In the first place, the plaintiff is not entitled to maintain an action for triple damages and attorney’s fees under the Deceptive Trade Practices Act. Section 17.50 of the Act is the section authorizing such relief. It is entitled “Relief for Consumers.” The opening language states that “[a] consumer may maintain an action if he has been adversely affected by any of the following: . . . .” There then follows a statement of actionable conduct, including those acts of which this plaintiff complains, and provisions for the relief to be granted, all of which are referable to an action authorized to be brought by a “consumer.” The plaintiff is not a “consumer” within the meaning of the statute. Section 17.45 of the Act is entitled “Definitions.” It includes this language:

As used in this subchapter:
(1) “Goods” means tangible chattels bought for use.
(2) “Services” means work, labor, and services for other than commercial or business use, including services furnished in connection with the sale or repair of goods.
(4) “Consumer” means an individual who seeks or acquires by purchase or lease, any goods or services.

The plaintiff sues as the purchaser of realty, not goods or services, and is, therefore, not a consumer entitled to maintain the action provided by Section 17.50.

This is not to say that certain acts listed in Section 17.46 as deceptive trade practices are not unlawful when done in connection with real estate sales. That section makes the listed practices unlawful when done “in the conduct of any trade or commerce.” Section 17.45 defines “trade” and “commerce” as including the sale of real property. But Section 17.50, under which this suit was brought, does not afford the plaintiff the relief for which she sued because she was not a consumer as defined by the Act and, therefore, not entitled to bring an action under Section 17.50, which is limited by its language to consumers.

There is another reason that the trial court properly held that the Deceptive Trade Practices Act did not relate to the plaintiff’s cause of action. As stated above, the trial court found that the statements and warranties made by the defendants were all made before May 21, 1973, the effective date of the Act. Section 17.63 of the Act states that “[t]he provisions of this subchapter apply only to acts or practices occurring after the effective date of this subchapter . . . .” Thus, the application of the Act to those practices of the defendants that occurred before the effective date of the Act would be giving it a retroactive application contrary to its express language. The appellee cites, in support of the contentions made under her cross-point, the case of Crawford Chevrolet, Inc. v. McLarty, 519 S.W.2d 656 (Tex.Civ.App.—Amarillo 1974, no writ). That case does not support appellee’s contentions and is factually distinguishable from the case at bar. In McLarty, the deceptive trade practices upon which judgment for a consumer was based were the misrepresentation by the defendant of the authority of its sales manager to execute a contract of sale binding on the defendant and the coercion by the defendant of the plaintiff-consumer into the signing of a more burdensome contract than that which had already been signed. Both acts were done on July 9, 1973—after the Deceptive Trade Practices Act had become effective.

The appellee argues that, although the promises as to the completion of the facilities in the subdivision or the alternative refund of her money plus ten percent interest were made before the Act’s effective date, their breach did not occur until after that date. The substantive rights and duties of the parties under the agreement between them, if enforceable at all, were those under the law as it existed at the time the agreement was made. A subsequent law that changes those rights and duties would violate Article I, Section 16 of the Texas Constitution, Vernon’s Ann.St. Turbeville v. Gowdy, 272 S.W. 559 (Tex.Civ.App.—Fort Worth 1925, no writ). In State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707, 708 (Tex.Sup.1943), the Court said, “It is the law of this State, and the law generally, that, in the absence of any special indication or reason, a statute will not be applied retrospectively, even when there is no constitutional impediment against it.” See also Government Personnel Mut. Life Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525 (Tex.Sup.1952); Hockley Co. Seed & Delint. v. Southwestern Inv. Co., 476 S.W.2d 38 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.).

Because the trial court rendered judgment against Cape Conroe Limited, et al., granting relief for a cause of action neither pleaded nor tried by consent, the judgment of the trial court against those defendants must be reversed. However, it appears that the appellee tried her case on the wrong theory and that, under the facts that might be proved if she pleaded and tried her case upon other theories, she may be able to justly prevail. We, therefore, reverse and remand to the trial court that portion of the judgment awarding the plaintiff a recovery against Cape Conroe Limited, doing business as U.S. Land Development Co. and Yes-Tex, Inc. National Resort Communities v. Cain, 18 Tex.Sup. Ct.J. 343 (May 28, 1975); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.Sup.1972). No complaint is made as to that portion of the judgment in favor of Reynolds and Buvens. The trial court’s judgment as to them is affirmed.

Affirmed in part and in part reversed and remanded.

CURTISS BROWN, Justice

(concurring).

I concur in the result reached. Having correctly held that appellee is not a “consumer,” as defined by the Act with respect to the relief she sought, I see no necessity to reach the question as to whether the Act would otherwise apply or as to its constitutionality if so applied. I reserve my views as to these questions for an appropriate case.


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    CITY OF AUSTIN, Appellant, v. Due Tu JOHNSON et al., Appellees.
    No. 7720.
    Court of Civil Appeals of Texas, Beaumont.
    June 5, 1975.
    Rehearing Denied July 10, 1975.

      Richard E. Tulk, Austin, for appellant.
    Joe Colbert et al., Austin, for appellees.
   DIES, Chief Justice.

Plaintiff below — appellee—the widow of Elbert Byron Johnson, brought suit for death benefits under the Workmen’s Compensation Act. It was her theory that on September 9,1971, her husband, an employee of the City of Austin, learned that his job would be terminated after October 1, 1971. That the emotional stress and worry caused by this news caused or contributed to cause a fatal heart attack on September 20, 1971. Trial was to a jury which found an injury in the course of his employment as alleged, and judgment was given for plaintiff from which the City of Austin perfects this appeal.

One of the City’s points contends there is no evidence that Johnson’s alleged injury had to do with and originated in the work, business, trade, or profession of City. We sustain this point.

Vernon’s Tex.Rev.Civ.Stat.Ann. art. 8309, section 1(4) provides that the term “injury sustained in the course of employment” shall “include all other injuries of every kind and character 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 or business of his employer whether upon the employer’s premises or elsewhere.”

This definition embraces two elements: (1) the injury must be of such kind and character as had to do with and originated in the employer’s work and (2) have been suffered while the employee was engaged in or about the furtherance of the affairs of the employer. McKim v. Commercial Standard Ins. Co., 179 S.W.2d 357, 358 (Tex.Civ. App. — Dallas 1944, writ ref’d); Texas Indemnity Ins. Co. v. Clark, 125 Tex. 96, 81 S.W.2d 67 (Tex.Com.App.1935, opinion adopted); Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192 (Tex.Com.App.1937, jdgmt adopted).

In Kimbrough v. Indemnity Ins.Co., 168 S.W.2d 708, 709 (Tex.Civ.App. — Galveston 1943, writ ref’d), we find:

“The injury must be brought about by a risk which is incidental to and arises out of the task the workman has to do in fulfilling his contract for service, and to which the employee would not be subjected but for the employment contract for service.”

See also Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 242 (1942):

“In this connection, it may be said that a risk is incidental to employment when it belongs to or is connected with what a workman has to do in performing his contract of service.”

To hold that worry and anxiety over job loss is “connected with what a workman has to do in performing his contract of service” would in our opinion not be reasonable.

This situation has apparently not before come up in Texas jurisprudence. It has, however, been considered in at least three other jurisdictions. In all three, it was decided not to be a compensable injury. Seals v. City of Baton Rouge, 94 So.2d 478 (La.Ct. App. 1 Cir. 1957); Chapman v. Aetna Casualty & Surety Co., 221 Tenn. 376, 426 S.W.2d 760 (1968); In Re Korsun’s Case, 354 Mass. 124, 235 N.E.2d 814 (1968).

We reverse the judgment of the trial court and hold that appellee take nothing of and from the City of Austin, appellant.

Reversed and rendered.


author: CLAUDE WILLIAMS, Chief Judge.

text:
    Esther Ritz LIPSHY, Appellant, v. Ben and Udys LIPSHY et al., Appellees.
    No. 18596.
    Court of Civil Appeals of Texas, Dallas.
    June 12, 1975.
    Rehearing Denied July 7, 1975.

      John E. Agnew, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Elgar L. Robertson, John L. Hauer, Akin, Gump, Strauss, Hauer & Feld, Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Judge.

Esther Ritz Lipshy brought this action against her husband Bruce Arlen Lip-shy, seeking a divorce, division of community property, and the appointment as managing conservator of their three minor children. Bruce Arlen Lipshy responded with a general denial and later filed a cross-action in which he sought to be appointed managing conservator of the children. Subsequently, Ben and Udys Lipshy, the paternal grandparents of the children, intervened and sought to be appointed managing conservators. In her notice of appeal, Esther Ritz Lipshy specifically limits the scope of her appeal to the jury’s verdict and entry of judgment by the court concerning custody of the minor children. In her first two points of error, petitioner contends that the trial court erred in allowing the intervenors and respondent six peremptory challenges each. Before considering these points of error brought forward by petitioner, it is necessary to resolve a preliminary matter presented by the intervenors. Intervenors now take the position that petitioner is es-topped from attacking the “composition or integrity of the jury as she has attempted to do so in her points one, two and three of her brief, for the reason that she has accepted the benefits of all portions of the verdict and the judgment based thereon other than special issues nine and ten of such verdict [regarding custody of the children].” We cannot agree with intervenors and overrule their contention.

It is well settled that when a judgment is severable a litigant may accept the benefits which an adverse party concedes, or is bound to concede under the judgment, and is not estopped to prosecute an appeal which involves only his right to further recovery. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). Issues relating to custody of children are severable from issues relating to the decree of divorce, division of property, and other matters. Esparza v. Esparza, 382 S.W.2d 162, 168 (Tex.Civ.App. — Corpus Christi 1964, no writ); Phelps v. Phelps, 307 S.W.2d 956, 958 (Tex.Civ.App. — San Antonio 1957, no writ, J. Pope); Powell v. Powell, 199 S.W.2d 285, 288 (Tex.Civ.App. — Beaumont 1946, no writ); accord, Texas Employment Commission v. Brasuell, 235 S.W.2d 950, 952 (Tex. Civ.App. — Eastland 1950, writ dism’d); Pritzen v. Pritzen, 197 S.W.2d 363, 366 (Tex. Civ.App. — Beaumont 1946, no writ). A reversal of the judgment regarding managing conservatorship cannot affect her right to benefits already secured under the judgment. Although petitioner’s points of error regarding the number of peremptory challenges allowed could affect the entire judgment rendered, she is not estopped, from appealing a severable portion thereof. By electing to appeal from only the child custody judgment, it does not necessarily follow that petitioner is treating the entire judgment as both right and wrong. She could be dissatisfied with portions of the judgment and yet not desire to appeal from these portions.

We now turn to a consideration of petitioner’s points of error. As previously indicated, petitioner contends in points of error one and two that the trial court committed reversible error by allowing six peremptory challenges each to the respondent husband and intervening grandparents, while allowing petitioner only six peremptory challenges. We sustain these points.

Tex.R.Civ.P. 233 provides that “[ejach party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court . . . .” This rule was supplemented by the enactment of Tex.Rev. Civ.Stat.Ann. art. 2151a (Vernon’s Supp. 1974) which provides:

After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.

The Supreme Court has definitely held that whether a litigant is a party within the meaning of rule 233, so as to entitle him to separate peremptory challenges, depends upon whether his interests are, at least in part, antagonistic to other litigants in a matter with which the jury is to be concerned. Perkins v. Freeman, 518 S.W.2d 532, 533 (Tex.1974); Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex.1965). The Supreme Court in Perkins, supra, pointed out that the existence of this antagonism is to be resolved not only on the basis of the pleadings of the parties but also from a determination of the interest of the parties from information which has been called to the attention of the trial court during pretrial procedures. The question of antagonism must be resolved in the light of the information which was presented to the trial court prior to the time of the exercise of the peremptory challenges and not by circumstances or events which may have transpired following that occasion. City of Amarillo v. Reid, 510 S.W.2d 624, 629 (Tex. Civ.App. — Amarillo 1974, writ ref’d); accord, Perkins v. Freeman, 518 S.W.2d 532, 533 (Tex.1974). Petitioner argues that at the time the trial court made the decision to allow both respondent husband and intervening grandparents six peremptory challenges each, and only six peremptory challenges to her, that the interests of respondent and intervenors were not antagonistic to one another, at least in part, in matters that the jury was to be concerned with and, therefore, the trial court committed prejudicial error requiring reversal.

While it is true that intervenors’ pleadings indicate antagonism, the pre-trial evidence presented to the trial court reveals clearly that there was no substantial antagonism between the intervenors and respondent. This conclusion is based primarily on several points.

(1) Intervenor Udys Lipshy, in her deposition, stated:

If Bruce [respondent] can’t get custody then I want custody . . . . Because if I have custody, it’s like Bruce having custody. He will be there day and night with those children, and you know it as well as I do . . . . Oh, I would love for their father to have custody of them, and if he can’t, I want it, because he would have custody.

This testimony clearly reveals that intervenors primarily sought to have custody of the minor children awarded to the respondent, or, in the alternative, with the intervenors which would result in respondent having effective custody. Following the jury verdict, intervenor Udys Lipshy attempted to clarify her statement that “if I have custody, it’s like Bruce having custody.” However, as said in City of Amarillo v. Reid, supra, the issue as to the allowance of peremptory challenges is not to be determined by hindsight, and even if this particular statement had been clarified during pre-trial, it fails to negate the intervenors’ primary concern which was the appointment of respondent as managing conservator.

(2) Respondent husband testified that he wanted custody of the children, but that if this were not possible then he hoped his parents would be appointed managing conservators. His primary concern was that the children should be raised in a “Lipshy environment” rather than under the influence of the petitioner and her family.

(3) At the time respondent filed his original answer to petitioner’s action for divorce, he was represented by both attorneys Hauer and Robertson. Subsequently, when the intervenors decided to enter the suit, attorney Robertson withdrew as attorney for respondent and filed a petition for intervention on behalf of the grandparents. In the pre-trial testimony, it was revealed that respondent recommended and approved the intervenors’ retention of Robertson as their attorney because the attorney was familiar and intrinsically involved with the lawsuit. This recommendation was made after respondent discussed with his father and mother their intervention in the case.

(4) After the trial court ruled that respondent and intervenors would each be allowed six peremptory challenges, petitioner asked the court that respondent and in-tervenors be instructed not to confer with each other regarding challenges which they were to exercise. During a discussion of this matter, respondent’s attorney stated that “although we are antagonistic to one another, we have . . . one common opponent, and that would be Mr. Carter [petitioner’s attorney]. In other words, there is a three-party lawsuit, and it’s to both our advantages to cut people’ [who] might favor Mr. Carter.” This statement, in addition to the evidence previously set forth, clearly reveals that the respondent and intervenors were united in a common cause of action against the petitioner on the issue of custody of the children. Each sought to prevent petitioner from being awarded custody of the children. Once this intention was achieved, then the interve-nors favored the appointment of respondent as managing conservator and, although respondent undoubtedly wanted to be appointed managing conservator, he would have been satisfied by the appointment of his parents.

From the evidence that was before the court during pre-trial procedures, it is apparent to us that the relationship between intervenors and respondent, insofar as managing conservatorship is concerned, was not antagonistic and hostile to the extent that each of the parties was entitled to six peremptory challenges.

As stated by the Supreme Court in Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974), an award to the respondent and in-tervenors of double the number of peremptory challenges to which they were entitled is so materially unfair that a judgment cannot be upheld. Id. at 534. The right to strike a prospective juror for any reason that seems adequate to counsel is the very essence of the peremptory challenge. Jurors who are not prejudiced in a legal sense are frequently challenged because of their background, associations, appearance or demeanor. A litigant who is denied the right to challenge on that basis is deprived of a valuable means of “insuring that the controversy is decided by a jury whose members are not predisposed by reason of temperament or prior experience to look with disfavor upon his side of the case.” Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex.1965). This right can be especially important in divorce and child custody litigation where moral, cultural and religious mores are often the basis for interpreting evidence and determining the issues presented. We hold that the action on the part of the trial court in awarding intervenors and respondent twice the number of jury challenges as that awarded to petitioner was so materially unfair that petitioner was denied a fair trial. Accordingly, we sustain petitioner’s points one and two and reverse and remand the case to the trial court on the issues of conservatorship.

In view of our action, it becomes unnecessary to pass upon or consider the remaining points presented by petitioner.

Respondent presents four cross-points of error. Two of these points attack the appointment of intervenors as managing conservators and the remaining two points contest the award of attorney’s fees to petitioner. Petitioner argues that we should not consider respondent’s cross-points for the reason that respondent failed to timely file his motion for new trial, notice of appeal or in any manner to effectively apprise the trial court of any objection or complaint he had with the judgment rendered. Without passing upon the merits of petitioner’s contention, we hold that respondent’s. cross-points three and four cannot be sustained. The first two points become immaterial in the light of our action in sustaining petitioner’s first two points of error and reversing judgment on the issues of conser-vatorship.

In cross-points three and four, respondent asserts that the award of $45,000 to the petitioner for attorney’s fees is violative of the Texas Equal Rights Amendment. We cannot agree.

It is well settled that in a divorce case, the trial court is clothed with wide discretion in disposing of the community property of the parties, and such division will not be disturbed on appeal unless it is shown that the trial court abused its discretion by making an unjust settlement between the parties. Allen v. Allen, 363 S.W.2d 312, 316 (Tex.Civ.App. — Houston 1962, no writ); Eaton v. Eaton, 226 S.W.2d 644, 645 (Tex.Civ.App. — Galveston 1950, no writ). The attorney’s fee is but a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all attendant circumstances. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1005 (1950). Respondent has completely failed to demonstrate that the trial court’s award of attorney’s fee to petitioner was something other than a factor which the court considered in its division of the parties’ community property. The fact that the $45,000 granted petitioner was listed separately from the division of the community assets does not compel the conclusion that the award was based on the sex of the litigants. Although the practical effect of a decree that the husband pay all the wife’s attorney’s fees may be to award him less of the community estate than that awarded to the wife, this property division may be necessitated by such factors as disparate earning capacities, business opportunities and ability. Moreover, pursuant to the Texas Equal Rights Amendment, the Constitution of Texas, Article I, § 3a, Vernon’s Ann.St., these factors may justify the recovery of an attorney’s fee by the husband rather than by the wife. The amendment does not simply preclude recovery by a woman. Since respondent has not demonstrated that the attorney’s fee awarded to petitioner was based on her sex, we find no merit in respondent’s counterpoints.

The judgment of the trial court, insofar as it relates to the conservatorship of the three minor children involved, is reversed and remanded to the trial court for further proceeding.

Reversed and remanded.

      . Although petitioner has effectively limited the matters she may assert on appeal, her failure to serve notice upon respondent Bruce Arlen Lipshy within the fifteen-day period provided by Texas Rules of Civil Procedure 353(c) does not preclude respondent husband from presenting cross-points of error pertaining to matters not within the limitation imposed by petitioner. This right, of course, may be denied if respondent husband failed to properly preserve his error or errors in the trial court.

      . Intervenors’ pleadings provide,
      Intervenors pray that ... it would be in the best interest of the children of the marriage of petitioner and respondent that the intervenors be appointed the managing conservators, and, in the alternative . . . that they be appointed possessory conservators.

      . Respondent’s cross-assignments are based on the judgment rendered in compliance with the jury’s answers to various special issues. Respondent did not file a motion for new trial or a timely notice of appeal but did generally except to the court’s judgment. Tex.R.Civ.P. 324 provides that “[a] motion for new trial shall not be necessary in behalf of appellee where he does not complain of the judgment or a part thereof.” If a litigant, however, is complaining of a portion of the judgment, which does not come within any of the provisions of rule 324 alleging the necessity for filing a motion for new trial, then he has waived the asserted errors. Nixon v. Nixon, 348 S.W.2d 438, 441 (Tex. Civ.App. — Houston 1961, writ dism’d); Furrh v. Furrh, 251 S.W.2d 927, 934 (Tex. Civ.App. — Texarkana 1952, writ ref’d n. r. e.); Edgar v. Schmidt, 243 S.W.2d 414, 417 (Tex.Civ.App. — Austin 1951, no writ); Long v. Mooring, 183 S.W.2d 232, 233-34 (Tex. Civ.App. — Austin 1944, no writ); Walker-Smith Co. v. Coker, 176 S.W.2d 1002, 1009 (Tex.Civ.App. — Eastland 1943, writ ref’d w. o. m.). A general exception to the verdict would certainly not be an effective substitute for a required timely motion for new trial.


author: MASSEY, Chief Justice.

text:
    AMERICAN QUARTER HORSE ASSOCIATION, Appellant, v. Matlock ROSE, Appellee.
    No. 17658.
    Court of Civil Appeals of Texas, Fort Worth.
    June 20, 1975.

      Pope, Hardwicke, Christie & Montgomery, Port Worth, Underwood, Wilson, Sutton, Berry, Stein & Johnson and R. A. Wilson, Amarillo, for appellant.
    Murad & Steimel, Fort Worth, Webb, Stokes & Sparks and Tom Webb, San Angelo, for appellee.
   OPINION

MASSEY, Chief Justice.

This is a case in which Matlock Rose, plaintiff, brought suit for damages against American Quarter Horse Association (hereinafter termed AQHA) in Tarrant County, Texas. AQHA filed its plea of privilege to have the suit transferred to Potter County as its place of residence. Following trial the plea of privilege was overruled and AQHA appealed.

We reverse and order transfer of the cause.

Involved is Vernon’s Ann.Tex.Civ.St. Art. 1995, “Venue, general rule”, providing that no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile, with certain exceptions, among which are the provisions of Section or Subsection 23, “Corporations and associations”. Thereby is provided that suit against a private association, etc., may be brought in the county in which arose the cause of action or a part thereof. It is the contention of Matlock Rose that a part of his total cause of action against AQHA arose in Tarrant County where he brought his suit. This contention was sustained by the trial court in overruling the plea of privilege.

In the instant case the right to retain venue in the county of suit is dependent upon Mr. Rose’s discharge of the burden of a plaintiff to show by a preponderance of the evidence that he not only has a cause of action against the defendant, but that a part of the transaction creating his right occurred in the county of suit. McDonald, Texas Civil Practice, Sec. 4.30.1, “Art. 1995(23) and (27). Suits against Corporations and Associations. ... § 4.30.2. —(I) Where Cause of Action or Part Thereof Accrued.”

In essence, the suit against AQHA is based upon its wrongful breach of contract by unjustified suspension of Matlock Rose from membership in the association with injury to Rose’s property rights a consequence.

In America today the Quarter-Horse is probably the most popular type of horse. Individuals and corporations are formed for the purpose of breeding, showing, selling, etc., animals “admitted to registry” by the AQHA. Persons organizing shows and rodeos find it necessary to restrict participation to animals on the register of AQHA and to restrict entitlement to show or judge animals shown by others at these shows and rodeos to individuals who have been admitted to membership and are in good standing as a member of AQHA. This is substantially because of the system of giving and publicizing the award of “points” to the horses registered on the books of AQHA. These points accrue to an individual horse when it is shown by and judged by members of AQHA at “AQHA approved shows”, etc. AQHA refuses to award “points” to any horse not so registered, not shown by, not judged by a member in good standing, and not accrued pursuant to participation at a show or other exhibition which is not “AQHA approved”. Of course the interests of AQHA and its members in good standing are aided by the system. Very many members who are breeders, trainers or exhibitors gain through enhancement of the value of animals bought or sold because of the number of “points” won by them, or by contracts to train horses for others because an animal or animals trained by them have been awarded “points”. There are many other possible examples, of which these are only a few. A recognized skilled or successful breeder or trainer of AQHA registered horses can make money because he is such, and he cannot become so recognized unless he is a member of AQHA. Such a person was Matlock Rose.

By reason of his suspension from membership in AQHA Mr. Rose could neither show nor judge any AQHA registered horse at any “AQHA approved show,” and the evidence in the record before us showed that he did fail to earn money because of his suspension as a member by AQHA.

The occurrence giving rise to Rose’s suspension took place September 28, 1978, at an “AQHA recognized” horse show at Oklahoma City. There Mr. Rose’s horse, Charlie Polite, was entered and shown. Charlie Polite would have won a sizable number of points because he was named Grand Champion Stud in the event at which he was shown, except for the fact that the urine test given him immediately thereafter was a “positive butazolidine test”, i. e., there was indicated presence of the drug Butazo-lidin in his system as of the time he had been shown. Because of the results of the test the “points” awardable were withheld. Culmination of the affair was that, pursuant to action taken at a meeting held for the purpose by officials of AQHA at Amarillo, Potter County, Texas, on November 27, 1973, Mr. Rose was suspended from membership in the association for the period of six (6) months, beginning as of date of such November hearing, “for violation of Rule 299 of the 1973 AQHA Handbook”.

It was on September 26, 1973, two days before the sample of urine was taken from Charlie Polite at Oklahoma City, that a veterinarian had administered to Charlie Polite the drug Butazolidin. The veterinarian, by reason of instruction from Matlock Rose that he should do whatever he might deem necessary, decided that the Butazoli-din should be administered. Charlie Polite was “favoring” a hoof, apparently because of lameness resulting from having been shod rather close. Apparently the pain was relieved by the drug. Shortly after it was administered there was no lameness either before, during, or after the conduct of the show at Oklahoma City. Evidence in the record is to the effect that it would be unusual, though not impossible, for the presence of evidence of Butazolidin to have remained in the horse’s system as of the time he was shown on September 28th. In this instance it did. Matlock Rose did know that the drug had been administered before the show was held, though he did not learn that the veterinarian had given such a “shot” to Charlie Polite on the 26th until after the veterinarian had administered it.

The Handbook heretofore mentioned is in substance a part of the By-Laws of the membership of AQHA. As between Mat-lock Rose and AQHA it constitutes part of the contract of each with the other. Rule 299, as a part thereof is the “Show and Contest Rule”. Therein are material provisions to the effect that (a) either before or during an approved event no medication shall be caused to be administered to a horse which is of such character as could affect its performance; (b) that upon taking a specimen for testing from a horse exhibited or presented for exhibition with a laboratory report showing the presence of a forbidden drug or medication such shall be prima facie evidence that it had been administered; and fc) that the exhibitor, the individual signing the entry blank, in the absence of substantial evidence to the contrary, is to be deemed responsible for the condition of the horse and to know all the rules and regulations of the Association.

Rule 35 of the Handbook on “Disciplinary Procedure” provides that any member of AQHA may be suspended whenever it is established that a member has knowingly and willfully violated any pertinent rule. Further relevant portion thereof (as part of the parties’ contract) is that the decision and action relative to suspension, etc., by the Committee for AQHA shall be final and binding; and that when a member is . suspended . . . the name and address of the member might be published in the Quarter Horse Journal.

There appeared in the January, 1974, publication, The Quarter Horse Journal, under notice relative to discipline of members of AQHA: “ROSE, MATLOCK, GAINES-VILLE, TEXAS, is denied privileges of participation in AQHA approved events for a period of six (6) months, beginning October 17, 1973, for violation of Rule # 299 of the 1⅛10 Official AQHA Handbook pertaining to administration of forbidden drugs, further Mr. Rose is removed from the approved judges list.”

By reason of his suspension from membership by AQHA Rose was unable to participate in activities and business at the Fort Worth show held the first week of February, 1974. The evidence in the record shows that there was injury and damage sustained by Mr. Rose as a consequence.

It was by reason thereof that the suit against AQHA was filed and sought to be maintained in Tarrant County.

The evidence was silent upon whether any affirmative action was ever taken in Tarrant County by AQHA other than publication of its magazine for January, 1974. The officials for the Fort Worth show, having learned of Mr. Rose’s suspension in a manner now shown by the record, were shown to have denied permission for him to participate in the show activities.

We have concluded that it is of considerable importance to bear in mind the prayer for relief in the petition of Mr. Rose, incorporated for all necessary purposes in his controverting affidavit to the plea of privilege of AQHA. After having alleged facts which are construable both as a foundation for a cause of action for damages because of a breach of contract and as a foundation for a cause of action for damage because of libel on the part of AQHA, the portion relating to damages, and the prayer, continues as follows: “Plaintiff would show, that for the reasons stated above, Defendant has breached its contract . . . . The suspension proceedings against Plaintiff by the Defendant . . . were in breach of this contract . . . . Plaintiff would show the Court that he has been damaged in the monetary sum of . . . , for loss of earnings due to their wrongful suspension, and further, such monetary damages should include punitive damages, in that, Defendant maliciously, willfully and knowingly selected Plaintiff’s horses for testing out of hundreds of horses, such ununiform testing and the following harassment evidencing said Defendant’s motive. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that . . . (he) have judgment against Defendant for monetary damages sustained as a result of Defendant’s acts in a just and equitable amount as the evidence shows, for costs of court and for such other and further relief as Plaintiff may be entitled to under law or in equity.”

We deem it obvious from the above that Matlock Rose is not suing AQHA for damages in tort for inducing a breach of contract or refusal to deal with him by the Fort Worth Fat Stock Show in February, 1974. However, it is upon this refusal to deal that right of maintenance of the suit in Tarrant County is contended to be proper. But a cause of action predicated upon such a theory is one in tort. See Restatement of the Law, Torts, Division Nine, “Interference With Business Relations”, Part 2, “By Refusal, and Causing Refusal, to Deal or Breach of Contract”, Chapter 37, Topic 2., “Inducing Breach of Contract or Refusal to Deal” and the Notes thereunder, and all sections thereunder, especially Sec. 766, “General Principle”. We cannot construe the pleadings and prayer as presenting a cause of action based thereon.

The prayer, as hereinabove noticed, sought general relief in addition to damages. Thereunder any relief appropriate to the facts proved at the trial may ordinarily be granted, and it is for the court to declare the form of relief appropriate under the pleadings and the evidence. But the prayer for general relief does not authorize the court to grant a form of relief which, though consistent with the facts pleaded, would take the defendant by surprise, as for a cause of action not pleaded, etc. In this respect the prayer of the petition should not be read as enlarging the cause of action pleaded so as to embrace one which is not pleaded and/or because of which there is no relief sought; nor when by a construction of the prayer it does not reasonably appear that there was intent to claim such relief. 46 Tex.Jur.2d 455, et seq., “Pleading”, Sec. 48, “Relation to facts alleged”, and Sec. 49, “General relief”. Here the circumstances are such that we could not view the case as one in which the trial court could have rendered the judgment overruling the plea of privilege of AQHA on a theory other than because of its breach of contract.

Our conclusion is that the evidence adduced upon trial under the pleadings entitle the trial court to find that Rose proved the existence of his cause of action against AQHA for breach of contract. We make our holding in accord. Thus the question for determination is limited, viz.: did part of the cause of action for such breach of contract arise in Tarrant County?

In the case of Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945) the issue bore upon trespass rather than upon breach of contract. Speaking of the argument made by the plaintiff to the effect that the injection of drugs into her veins in the county of the defendant’s residence set in motion an agency which the defendant knew would inflict injury many days in the future, including that inflicted in Hunt County while she was present therein, and hence constituted a trespass in Hunt County where plaintiff sought to maintain her suit, the court wrote: “In our opinion the argument confuses injury caused by the trespass with the trespass itself. The misfeasance or the wrongful act is the trespass.”

Paraphrasing the above we believe it would be proper to say, relative to Mr. Rose’s argument that the breach of contract by AQHA, originally occurring in Potter County, Texas, set in motion an agency which AQHA knew would inflict injury to him many days in the future, including that inflicted in Tarrant County during the first week of February, 1974 at the Fort Worth Fat Stock Show, whereat there was.exclusion of him as a person permitted to do business, etc.: “In our opinion the argument confuses injury caused by the breach of contract by AQHA with the breach itself. It is the wrongful breach of contract upon which the cause of action is founded, and nothing constituting any part thereof was shown to have occurred in Tarrant County.”

The provision of exception 23 of Article 1995 which permits a private corporation, association or joint stock company to be sued in any county in which the cause of action, or a part thereof arose means that either some part of the transaction creating the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where suit was brought. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936).

In Stone Fort the Supreme Court obviously disapproved the holding of the Court of Civil Appeals from which Writ of Error was taken, to the effect that the plaintiff could bring suit against the bank which had wrongfully refused to honor his check in any county where he suffered damages, notwithstanding the fact that it took no part in any transaction in such county in producing any damages.

It appears that Matlock Rose’s case is, by the pleadings, reduced to one dependent upon the theory that wherever there is an exhibition, show, rodeo, etc. held at which he is excluded as an exhibitor, judge, etc. he would be entitled to maintain his suit if brought in the county where the show was held by proving that he would have participated thereat and profited thereby but for his exclusion. This could not be correct. Most certainly it could not be the law as applied to a suit filed by Rose where his cause of action would be based upon and confined to complaint of the 1973 breach of contract by his suspension as a member of AQHA.

Of some analogy was our holding in the case of Duncan Coffee Co. v. Clement, 246 S.W.2d 509 (Fort Worth Tex.Civ.App., 1952, no writ history), where Justice Renfro wrote at page 512: “There is nothing to show that appellant participated in any transaction in either Johnson or Tarrant County, or contracted to perform any obligation in Johnson or Tarrant County. Therefore the appellee failed to meet the requirements of the exception relied upon, in that he failed to show that the cause of action, or any part thereof, arose in either of said counties, or that appellee resided in either county when the cause of action or a part thereof arose. (Citing cases.)”

The same thing applies here relative to Matlock Rose as appellee and AQHA as appellant in a test of the propriety of maintaining appellee’s suit by Section 23 of Art. 1995 where premise for the suit is confined to alleged breach of contract.

Judgment of the trial court is reversed and here rendered sustaining the plea of privilege of AQHA and the cause is ordered transferred to the District Court of Potter County, Texas.


author: McDONALD, Chief Justice.

text:
    TEX-WIS COMPANY et al., Appellants, v. Margaret JOHNSON et al., Appellees.
    No. 5442.
    Court of Civil Appeals of Texas, Waco.
    June 26, 1975.
    Rehearing Denied July 31, 1975.

      Cox, Pakenham & Roady, Joe G. Roady, Houston, for appellants.
    Mac L. Bennett, Jr., Normangee, Tillman, Pribilski & Hunt, James R. Hunt, Houston, Haley, Fulbright, Winniford, Bice & Davis, Sherwin A. Winniford, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Tex-Wis Company, et al, from judgment for plaintiffs Margaret Johnson, et al., for title and possession to two adjoining tracts of land (58.631 and 96.824 acres totaling 150.45 acres) in Leon County.

Plaintiffs Margaret Johnson et al., the heirs of King Alexander and wife, Julia, sued Tex-Wis Company (whose President/agent is George H. Henderson), Tex-Wise Company’s attorneys (to whom Tex-Wis had conveyed an interest in the land subject of this case), and a lessee, for title and possession of two tracts of land in Leon County, tract one being 53.631 acres out of the TCRR Survey, and tract two being 96.-824 acres out of the same survey.

Trial was to a jury, pertinent of which findings are summarized as follows:

1) Plaintiffs, or those under whom they claim hold exclusive, peaceable and adverse possession of 96.824 acres (being Tract 2), cultivating, using or enjoying same for ten years or longer between March 16, 1911, and March 16, 1972.
2) Plaintiffs, or those under whom they hold and claim, have had and held actual, continuous, peaceable and exclusive possession of said 96.824 acres beginning March 16, 1911, and ending in 1964.
3) Plaintiffs, or those under whom they claim, hold exclusive, peaceable and adverse possession of 53.631 acres (being Tract 1), cultivating, using or enjoying same for ten years or longer between March 16, 1911, and March 16, 1972.
4) Plaintiffs, or those under whom they hold and claim have had and held actual, continuous, peaceable and exclusive possession of said 53.631 acres from March 16, 1911, to 1964.
9) Defendant Tex-Wis Company or those under whom it claims did not hold exclusive, peaceable and adverse possession of 96.824 acres (being Tract 2), cultivating, using or enjoying same for any continuous period of ten years or longer between March 16, 1911, and March 16, 1972.
11) Defendant Tex-Wis Company or those under whom it claims did not hold exclusive, peaceable and adverse possession of 53.631 acres (being Tract 1), cultivating, using or enjoying same for any continuous period of ten years or longer between March 16, 1911, and March 16, 1972.
13) Defendant, Tex-Wis Company or those under whom it claims did not hold peaceable, adverse and continuous possession of 96.824 acres (being Tract 2) for any period of three consecutive years prior to March 16, 1972.

The trial court rendered judgment on the verdict for plaintiffs for title and possession of tract one being 53.631 acres, and tract two being 96.824 acres.

Defendants appeal on 13 points, contending:

1) The trial court erred in rendering judgment for plaintiffs for the 53.631 acre tract on the basis of record title, because: 1) the 1911 judgment is insufficient to describe the tract; 2) there is no evidence the 53.631 acre tract is the same tract as the tract described in the 1911 judgment; and 3) there is no evidence the 53.631 acre tract was located by King Alexander pursuant to the 1911 judgment.
2) The trial court erred in rendering judgment for plaintiffs for both tracts based on ten-year statute of limitation, there being no evidence of possession of either tract for ten years; and/or such findings are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.
3) The evidence establishes as a matter of law defendants had adverse possession of both tracts for more than 10 years; that defendants had adverse possession of the 96.824 acre tract for more than 3 years; and jury findings 9, 11 and 13 that defendants did not have adverse possession of both tracts for ten years, and of the 96.824 acre tract for more than 3 years, are against the great weight and preponderance of the evidence.

A schematic diagram of the land involved in this case follows:

Prior to 1892 King Alexander and wife Julia moved on to, made improvements and took possession of the entire 150 acres. In 1911 a judgment was rendered awarding King Alexander and wife title to 50 acres. King Alexander purchased Tract 2 in 1918, but a mortgage thereon was foreclosed by Trustees Deed in March 1921. Julia died in 1921; and King died in 1934. King and Julia in their lifetimes, and plaintiffs following the deaths of King and Julia occupied the two tracts until 1964.

Defendants obtained a quitclaim deed in 1948, which excepted 50 acres owned by King Alexander, to some 600 acres in the TCRR Survey.

We revert to defendants’ contention 1, that plaintiff did not establish a record title to the 53.631 acres. A judgment rendered in 1911 decreed 50 acres to King Alexander to be selected and carved out of the 150 acres he had claimed. There is evidence that King Alexander had such surveyed out in 1915, and placed same of record in Vol. 175, page 300 of the Leon County Deed Records. Surveyor Hodges testified he located such land; that the 53.631 acres described in plaintiffs’ trial pleadings is identical to the description he prepared and that same conforms to the description in Vol. 175, page 300 Deed Records of Leon County. The 1911 judgment was sufficient to describe the 53.681 acre tract; there is evidence the 53.631 acre tract sued for by plaintiffs is the same tract as described in the 1911 judgment; and there is evidence such tract was located by King Alexander in 1915 pursuant to such judgment, and placed of record in Yol. 175, page 300 of the Deed Records of Leon County, and that such land described in Yol. 175, page 300 is the same land plaintiffs sued for.

Plaintiffs established record title to the 53.631 acre tract. We further note that defendants’ quitclaim deed which they received in 1948, excepted the King Alexander 50 acres; and defendants’ 1951 lease of land to McKnight likewise excepted such 50 acres.

Contention 2 is that there is no evidence or insufficient evidence that plaintiffs had possession of either tract for ten years. Plaintiffs and those under whom they claim were in possession of the 53.631 acre tract from 1911 until 1964. Plaintiffs were in possession of the 96.824 acre tract from 1934 until 1964. Margaret Johnson testified she was 59 years old; born on the place; was granddaughter of King and Julia Alexander; that she lived on the 150 acres until the late 1950’s; that Aunt Kitty Alexander lived on the place until 1964; that four houses, in addition to the King Alexander house, were erected on the 96 acre tract; that her uncles, their wives and children all lived there, making their living by farming and raising livestock; the entire 150 acres was enclosed by fences until the 1950’s when they rotted away; that in addition, the farming areas were separately fenced. We think the evidence sufficient and ample to sustain plaintiffs’ possession of the two tracts from 1934 to 1964.

Defendants assert plaintiffs could not claim the 96.824 acres after the 1921 foreclosure, because King Alexander became a tenant at that time and could not claim adversely unless actual notice of repudiation was given. Plaintiffs here and those under whom they claim possession here was so open, notorious, exclusive and inconsistent with the existence of title in others that there is an inference of notice to landlord out of possession of repudiation. Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926.

Defendants’ contention 3 is that the evidence establishes as a matter of law defendants had adverse possession of both tracts for more than ten years; the 96.824 acre tract for more than 3 years; and that jury findings 9, 11, and 13 are against the great weight and preponderance of the evidence.

George H. Henderson, President of Tex-Wis, testified that in 1964 he offered to buy the 150 acres from defendants for $50. per acre; (Mrs. Johnson testified $100. per acre). Defendant Tex-Wis obtained a quitclaim July 27,1948, excepting King Alexander’s 50 acres; Tex-Wis leased its land to McKnight in November 1951, excepting the King Alexander 50 acres; McKnight, who was lessee of defendants’ land, leased the land here in controversy from plaintiffs for the year 1959, and in 1957 purchased a house from one of the plaintiffs for $80. to be moved off of the place.

The acknowledgement of title in plaintiffs by defendants Tex-Wis offering to buy the land in controversy precluded any limitation running in favor of defendants after 1964 as a matter of law and is evidence showing their possession at any time was not adverse to plaintiffs. McDonald v. Batson, Tex.Civ.App., NWH, 501 S.W.2d 449; Bruni v. Vidaurri, 140 Tex. 138,166 S.W.2d 81; Allen v. Sharp, Tex.Civ. App., Er.Ref., 233 S.W.2d 485; Wolgamot v. Corley, Civ.App., 523 S.W.2d 491.

All of defendants’ points and contentions have been considered and are overruled.

Affirmed.

      . Except point 8 which was conceded by appellees and is applicable to the 25 year statute of limitation not pertinent to this appeal.


author: GUITTARD, Justice,

text:
    Ex parte Walter O. MILES.
    No. 18698.
    Court of Civil Appeals of Texas, Dallas.
    June 19, 1975.
    Frederick H. Shiver, Baker & Foreman, Dallas, for relator.
    Jean White, Dallas County Child Support, Dallas, for petitioner.
   GUITTARD, Justice,

Relator Walter Miles applied to us for a writ of habeas corpus, alleging that he had been illegally restrained of his liberty by the Sheriff of Dallas County under a void order of one of the domestic relations courts of Dallas County holding relator in contempt for failure to make child support payments. We granted bail pending a hearing in this court, and after the hearing we denied the writ and remanded relator to the custody of the sheriff.

Our decision is based on the holding that after relator had been informed that his children had not been adopted by his former wife’s husband in accordance with relator’s written consent to such adoption, the court had power to punish him for contempt for failure to resume the payments originally ordered in the divorce decree without a prior adjudication that the children had not been adopted.

The divorce decree, dated June 19, 1967, ordered relator to pay $100 per month to petitioner for support of their minor children, Robin and Kandis. He made these payments until 1970, when petitioner obtained his signature and affidavit on a document consenting to adoption of the children by William Lincoln Hosea, her husband at that time. Thereafter relator made no further support payments. Petitioner testified that she told relator shortly after the consent was signed that she did not go through with it because the children objected. However, the children used the name Hosea in school until some time in 1975. During all this time relator was not denied access to the children. Although he did not exercise all of his visitation privileges under the divorce decree, the children talked to him on the telephone several times and spent Christmas with him. Also, they were able to see him occasionally when they were visiting with his parents. The daughter, Kandis, spent Christmas 1974 and one or two months afterward with relator’s sister.

In December 1974, and again in February 1975, petitioner contacted relator and asked him to resume the support payments. She told him that she desperately needed financial help for the children. He made no payment. In March or April she moved to Arlington, Texas, and enrolled both children in school under the name of Miles, although, she said that Robin, the son, was known to the teachers and students as Ho-sca, since the counsellor suggested that he should continue to use that name until school was out.

Relator testified that after he signed the consent to adoption, he had no information that the adoption did not go through until December 1974, when petitioner asked him to resume support payments. He said he inquired at the school at Arlington and learned that Robin was enrolled in the name of Hosea. Before the contempt motion was filed, relator received a letter from the Dallas County Child Support Department demanding that he pay $100 per month beginning in January. He said that he then contacted attorney Jean White at the Child Support Department and informed her of the consent to adoption, but heard nothing until the motion was filed in late April.

Relator further testified that it was his “feeling” that the children had been adopted and that he should not have to pay for back child support until officially notified that they had not been adopted. He said that he did not think he should pay child support while they were going under another name.

At the close of the hearing, the court found relator in contempt and fixed his punishment at confinement in jail for a period of five days and ordered him further confined until he should purge himself of contempt by payment of $500 for support of his children.

The application for habeas corpus alleges that on the day of the hearing, after relator was arrested by the sheriff, he purged himself of the contempt by paying the sum of $500 to the Child Support Department, but that the judge, when presented with the receipt for this payment, refused to hear evidence concerning his purging from contempt until the next day. He then applied to this court for a writ of habeas corpus, and we ordered him released on bail.

Since relator has paid the amount he was ordered to pay, the only question before us is whether the order finding him in contempt and fixing his punishment at confinement in jail for five days is void. Relator contends that under the decisions of the Supreme Court in Ex parte Slavin, 412 S.W.2d 43 (Tex.1967), and of this court in Ex parte Thompson, 510 S.W.2d 165, 167 (Tex.Civ.App. — Dallas 1974, no writ), and Ex parte Stroope, 524 S.W.2d 378 (Tex.Civ. App. — Dallas, 1975, no writ), the trial court had no power to imprison him for contempt without first adjudicating his liability for the payments and allowing him a reasonable time thereafter to pay, because his signing the consent to adoption, together with petitioner’s nonenforcement of the support order for more than two years, created an uncertainty concerning whether he was required to make the payments.

We conclude that no such uncertainty . existed here as in the cases cited. Relator was not relying on a subsequent court order as in Thompson and Stroope. He relied only on the consent which he signed, although he admits that petitioner advised him more than five months before the hearing that no adoption had taken place. The judge had discretion to accept petitioner’s testimony that she informed relator shortly after the consent was signed that she had decided not to go through with it because of the children’s objection. The judge was also authorized to conclude from petitioner’s testimony that relator was not really in doubt as to whether she had given him correct information because, in view of his contacts with the children, he had ample opportunity to determine whether they had been adopted. Although the punishment of five days in jail after relator had already paid the $500 in back support may seem harsh, we cannot say that the finding of contempt is without any support in the evidence. Consequently, in this collatera proceeding, we cannot hold the order void.

Relator remanded to custody.


author: AKIN, Justice.

text:
    John B. CAUDLE, Appellant, v. SHERRARD MOTOR COMPANY, Appellee.
    No. 18587.
    Court of Civil Appeals of Texas, Dallas.
    June 19, 1975.
    Rehearing Denied July 7, 1975.
    Ed Walts, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.
    Tom J. Stollenwerck, Touchstone, Bernays & Johnston, Dallas, for appellee.
   AKIN, Justice.

The question on this appeal is whether the risk of loss of a house trailer had passed from the seller, Sherrard Motor Company, to the buyer, Caudle, under Tex.Bus. & Comm. Code Ann. § 2.509 (Tex.UCC 1968) before the house trailer was stolen from the seller’s premises.

The relevant facts are undisputed. On February 10,1972, plaintiff Sherrard Motor Company and defendant John Caudle entered into a contract for the purchase of a house trailer. It provided for a cash down payment of $2,685 and a balance of $4,005 in the form of a note payable to Sherrard. This contract was assigned with recourse to the Citizens National Bank of Denison, Texas, by Sherrard on the date executed. While Sherrard was making the trailer ready for the defendant, Caudle received a telephone call from his business office advising that he should return immediately to Dallas. Since the trailer was not ready, Caudle told Sherrard that he would return later to Denison and take possession of the trailer. Before Caudle returned and sometime between February 12 and 14,1972, the house trailer was stolen from plaintiff’s place of business. Upon learning of the theft, Caudle stopped payment on the check he had given Sherrard as down payment for the trailer. Sherrard then sued Caudle on the' contract of sale for the contract price.

In answer to special issues, the jury found that a contract had been entered into between the parties; that Caudle breached the contract; and that Sherrard sustained no damage as a result of the breach by Caudle. The trial court, upon motion by Sherrard, entered a judgment non obstante veredicto in Sherrard’s favor in the sum of $6,285.70. Caudle appeals from this judgment.

Caudle argues that the trial court erred in failing to grant Caudle’s motion for an instructed verdict because there is no evidence that the contract was breached by Caudle. Wé agree. We hold that the contract failed as a matter of law for want of consideration since the trailer was stolen before the risk of loss under Tex.Bus. & Comm.Code Ann. § 2.509 (Tex.UCC 1968) had passed to Caudle. We, therefore, reverse and render the judgment of the trial court.

In making this determination, we were presented with three principal questions. First, had the risk of loss passed to the buyer, Caudle, before the trailer was stolen, because the trailer was held by a bailee, Sherrard, to be delivered without being moved pursuant to Tex.Bus. & Comm.Code Ann. § 2.509(b) (Tex.UCC 1968)? Secondly, did the contract provide that the risk of loss passed to Caudle when the contract was signed by the parties under Tex.Bus. & Comm.Ccde Ann. § 2.509(d) (Tex.UCC 1968)? Thirdly, had the risk of loss remained with the merchant-seller, Sherrard, because the trailer was stolen before the purchaser, Caudle, had taken actual physical possession of the goods pursuant to Tex. Bus. & Comm.Code Ann. § 2.509(c) (Tex.UCC 1968)? We answer questions one and two in the negative and question three in the affirmative.

It is plaintiff’s contention that the risk of loss had passed to the defendant before the trailer’s disappearance under § 2.509(b)(2), which provides:

Where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer
(2) on acknowledgement by the bailee of the buyer’s right to possession of the goods.

Plaintiff contends that it was acting as a bailee while the trailer remained on its premises and that by executing the contract, it had acknowledged the defendant’s right to possession of the trailer. Plaintiff further argues that because it did not agree to deliver the trailer to Caudle in Dallas, the trailer was to be delivered to Caudle “without being moved.” These arguments, however, erroneously assume that the plaintiff is a bailee under the Code. It is apparent that the drafters of the Code contemplated a common law commercial bailee, such as a warehouseman, when using the term “bailee” in § 2.509(b). Certain analogies in the Code compel this conclusion. For example, a bailee is defined in Tex.Bus. & Comm.Code Ann. § 7.102(a)(1) (Tex.UCC 1968) as a person “who by a warehouse receipt, bill of lading or other document of title acknowledges possession of goods and contracts to deliver them.” [Emphasis added.] Section 2.509(b)(1) speaks of goods held by a bailee to be delivered to the buyer on the buyer’s receipt of a negotiable document of title and § 2.509(b)(3) speaks of the buyer’s receipt of a non-negotiable document of title. A document of title “includes bill of lading, dock warrant, dock receipt, warehouse receipt . . .. To be a document of title a document must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee’s possession . . ..” Tex.Bus. & Comm. Code Ann. § 1.201(15) (Tex.UCC 1968). A bill of lading is defined as “a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods . . ..” Tex.Bus. & Comm.Code Ann. § 1.201(6) (Tex:UCC 1968) [Emphasis added.] Similarly, a warehouse receipt is defined as “a receipt issued by a person engaged in the business of storing goods for hire.” Tex.Bus. & Comm.Code Ann. § 1.201(45) (Tex.UCC 1968) [Emphasis added.] Implicit in this language is the concept that the party who issues these documents and acknowledges the buyer’s right to possession of the goods be in the business of storing goods for hire — a commercial bailee. This is not true here. We conclude, therefore, that the plaintiff was not a bailee under the Code. Hence, § 2.509(b) does not control the determination of whether the risk of loss had passed to the defendant.

Plaintiff contends further that if § 2.509(b) is inapplicable then the risk of loss passed to the defendant pursuant to § 2.509(d). This section provides that a buyer and seller may specifically enter into a contract contrary to the other provisions of § 2.509. Plaintiff argues that such a contrary agreement was made because the terms of the contract for the sale of the trailer provided that the risk of loss passed to the defendant when the contract was signed by the parties.

The pertinent clause of the sales contract states:

No transfer, renewal, extension or assignment of this agreement or any interest hereunder, and no loss, damage or destruction of said motor vehicle shall release buyer from his obligation hereunder.

We hold that this language is insufficient to constitute a “contrary agreement” between the parties pursuant to § 2.509(d). A contract which shifts the risk of loss to the buyer before he receives the merchandise is so unusual that a seller who desires to achieve this result must clearly communicate his intent to the buyer. Hayward v. Postma, 31 Mich.App. 720, 188 N.W.2d 31, 33 (1971); Comment, Risk of Loss Under Section 2509 of the California Uniform Commercial Code, 20 U.C.L.A.L.Rev. 1352, 1362 (1973). This clause was apparently intended to fix responsibility for loss.after the defendant had taken possession of the trailer. This interpretation is consistent with other provisions of the contract. For example, the contract provides that the “buyer shall keep said motor vehicle in good order and repair . . It would indeed be difficult for the buyer to honor this responsibility without having acquired actual possession of the trailer. It is also apparent that the provisions of the contract were drafted for the benefit of a third party— the bank or other lending institution to which the contract would be sold. The contract was assigned to the Citizens National Bank of Denison, Texas with recourse on Sherrard. Furthermore, since risk of loss is not specifically mentioned in the contract, we cannot say that an agreement to the contrary may be inferred from reading the document as a whole. We, therefore, conclude that it was not the intention of the parties to transfer risk of loss of the trailer prior to delivery of possession to the buyer. To hold otherwise would be to set a trap for the unwary. If parties intend to shift the burden of the risk of loss from the seller to the buyer before delivery of the goods, then such must be done in clear and unequivocal language.

It is defendant’s contention that pursuant to § 2.509(c) the risk of loss remained with the plaintiff because he had not taken actual physical possession of the trailer. We agree. That section provides,

In any case not within Subsection (a) or (b), the risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise the risk of loss passes to the buyer on tender of delivery.

To determine if this section applies, the following questions must be resolved: (1) was the plaintiff a merchant? and (2) did the defendant receive the trailer? The plaintiff is a merchant under Article 2 of the Code as it “deals in goods of the kind involved in the transaction § 2.104(a). The language “receipt of the goods” is defined in the Code as “taking physical possession of them.” § 2.103(a)(3). It is undisputed that the defendant never took physical possession of the trailer; therefore, he had not received the goods. Accordingly, we hold that the risk of loss did not pass to the buyer before the trailer was stolen. It follows, therefore, that no breach of contract occurred.

Our holding is in accordance with the underlying principles of § 2.509 dealing with risk of loss. Under the Uniform Commercial Code, the risk of loss is no longer determined arbitrarily by which party had title to the goods at the time of the loss. Instead, as the drafters of the Code state: “The underlying theory of these sections on risk of loss is the adoption of the contractual approach . . ..” Uniform Commercial Code, § 2-509, Comment 1. For example, under Tex.Bus. & Comm.Code Ann. § 2.509(a)(1) and (2) (Tex.UCC 1968), the risk of loss depends on whether the goods are shipped by a carrier pursuant to a “destination” or “shipment” contract. In addition, § 2.509(d) provides that the buyer and seller are free to adjust by contract their rights and risks contrary to the other provisions of § 2.509. Subject to the placement of a contractual approach at the analytic center of risk of loss problems is the policy that a party who had control over the handling of goods should bear their loss. For example, under § 2.509(a)(1) and (2), the seller must bear the risk of loss until the goods reach the control of the carrier, if it is a “shipment” contract, or the buyer, if it is a “destination” contract. Strong policy reasons support this approach. The party in control is in the best position to handle properly the goods, to contract for shipment with a reliable carrier, and to insure the goods. This theory is particularly applicable when the buyer is not a merchant and is unfamiliar with the problems of handling the goods.

Illustrative of these principles is the decision of Ellis v. Bell Aerospace Corp., 315 F.Supp. 221 (D.Or.1970), where the vendee purchased a helicopter from the defendant-vendor, and authorized him to store ■ the helicopter with a bailee. The helicopter was later flown back to the vendor’s factory where the plaintiff was to be instructed in its operation. During this instruction, the aircraft crashed. The court concluded that the vendor could not transfer risk of loss to the buyer until the buyer had actually received the merchandise, even though the buyer had paid the full price and had been notified that the goods were at his disposal. The fact that the helicopter had been held by a bailee with the consent of the buyer was not sufficient to bring the contract under Uniform Commercial Code, § 2-509(2) [Tex.Bus. & Comm.Code Ann. § 2.509(b) (Tex.UCC 1968)], because the helicopter remained under the practical control of the vendor. The court further observed that a merchant who is to make delivery at his own place of business continues to maintain control over the goods and can be expected to carry insurance to protect his interest in them. On the other hand, the buyer has no control over the goods and may not have had the foresight to obtain insurance on the undelivered merchandise. Id. at 224. See abo Baumgold Bros. v. Allan M. Fox Co., 375 F.Supp. 807 (N.D.Ohio 1973).

Accordingly, this cause is reversed and rendered.

      . All references to the Code are to the Texas Business and Commerce Code Annotated (Tex.UCC 1968).

      . It has previously been established that subsection (b) does not apply and subsection (a) dealing with goods shipped by a carrier is likewise inapplicable.

      . Tex.Bus. & Comm.Code Ann. § 2.401 (Tex.UCC 1968) provides:
      Each provision of this chapter with regard to the rights, obligations and remedies of the seller, the buyer, purchaser or other third parties applies irrespective of title to the goods except where the provision refers to such title.

        See also Duesenberg & King, Sales and Bulk Transfers Under the Uniform Commercial Code, §§ 8.01-8.03 (3 Bender’s Uniform Commercial Code Service 1968); White & Summers, The Uniform Commercial Code, 134-40 (1972); Comment, Risk of Loss Under the Uniform Commercial Code: The Unlamented Passing of Title, 13 Kan.L.Rev. 565 (1965); Comment, Risk of Loss Under the Uniform Commercial Code, 7 Ind.L.Rev. 711, 713 (1974); Comment, Risk of Loss Under Section 2509 of the California Uniform Commercial Code, 20 U.C.L.A.L.Rev. 1352 (1973).

      . Uniform Commercial Code, § 2-509, Comment 3 states:
      The underlying theory of this rule is that a merchant who is to make physical delivery at his own place continues meanwhile to control the goods and can be expected to insure his interest in them. The buyer, on the other hand, has no control of the goods and it is extremely unlikely that he will carry insurance on goods not yet in his possession.