text:
    CNL FINANCIAL CORPORATION, Appellant, v. J. T. HEWLETT et al., Appellees.
    No. 7837.
    Court of Civil Appeals of Texas, Beaumont.
    July 8, 1976.
    Rehearing Denied July 29, 1976.
    Don L. Baker, Austin, for appellant.
    Douglass D. Hearne, Austin, for appel-lees.
   KEITH, Justice.

Plaintiffs, Hewlett and Thurman, brought suit against Maryland Fried Chicken of America, Inc., a Georgia corporation, and Maryland Fried Chicken, Inc., a Delaware corporation, for damages arising upon the wrongful termination or breach of a commercial lease agreement. The Georgia corporation had originally executed the agreement as lessee but was later merged into the Delaware corporation which, as the surviving corporation, assumed all of the liabilities of the former, including those made the basis of this action. We are not further concerned with the details of this intercorporate relationship and will simply refer to the original lessee as MFC.

Plaintiffs also sued First Macon Corporation upon a written guaranty of the MFC lease. The name of this corporation had been changed to CNL Financial Corporation and we will refer to it henceforth simply as CNL or guarantor.

MFC defaulted and CNL answered by a general denial. Upon appropriate jury findings which reach us without challenge as to either form or evidentiary support, judgment was entered for the plaintiffs for their past due installments of rent, for the present value of future rental payments, for the unpaid taxes, and for their attorneys’ fees.

In the first two points of error, CNL contends that the judgment was erroneous because no demand was ever made upon it for payment of the sums in default by MFC before suit was filed. We pause to note that under the terms of the guaranty agreement, CNL bound itself that it would upon demand “pay the said rent or any arrears thereof, or any other sum or sums provided to be paid by the tenant under any of the terms of the within Lease, that may remain due unto the said Landlord, * ⅜: ⅝ ))

Our record is not too clear as to the making of demand by plaintiffs on CNL before the institution of suit, one of the plaintiffs being somewhat equivocal in his testimony and there was no evidence of a written demand having been presented. CNL offered no evidence upon the trial. So, for the purpose of passing upon these points, we will assume, as CNL contends, that no formal demand was made upon it before suit was filed. Yet and still, we find no error and overrule points one and two for the reasons now to be stated.

As noted earlier, CNL answered only by a general denial and had no special pleas of any kind. Under Rule 94, Tex.R. Civ.P., all defenses in the nature of confession and avoidance are affirmative defenses which must be specially pleaded. The late Justice Frank Wilson addressed the point directly in Young v. J. F. Zimmerman & Sons, Inc., 434 S.W.2d 926, 927 (Tex.Civ.App.—Waco 1968, writ dism’d):

“Failure to make demand is an affirmative defense under Rule 94, Texas Rules of Civil Procedure. Appellants waived the defense by failure to plead it. Durrum v. Hendrick, 4 Tex. 495; Gresham v. McElroy, Tex.Civ.App., 309 S.W.2d 84, 90 syl. 5.”

Moreover, even if CNL had pleaded the defense, as required under Rule 94, the case was tried to a jury and it made no request for a special issue submitting any such defense as required by Rule 279, Tex. R.Civ.P. Thus, for this additional reason, the defense was waived. See Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.1965).

In its third and fourth points of error, CNL contends that the trial court erred in rendering a judgment for damages in excess of the amounts properly rendered against the defaulting primary obligor on the lease, MFC. This contention is based upon the fact that not all of the trial pleadings were served upon the defaulting principal, MFC; and, CNL argues that it is error for a trial court to enter judgment against a defaulting defendant for any sum greater than that set out in the pleading which was served upon such defendant. We experience no difficulty in accepting this as a general rule, but do not find it applicable here.

CNL has no standing to urge such a contention. Only MFC can complain that the judgment is erroneous as to it; and, MFC has not appealed from the judgment and is not before this court in any form. Insofar as this record shows, plaintiffs below have a valid judgment against MFC and CNL, jointly and severally. CNL makes no contention that it did not have sufficient actual knowledge of the demands of the plaintiffs to support the judgment entered against it.

We invoke the fundamental rule of procedure that one may not complain of errors in a judgment which do not injuriously affect him or which merely affect the rights of others. Shell Petroleum Corpora tion v. Grays, 131 Tex. 515, 114 S.W.2d 869, 870 (1938).

It is the general rule in this state that “ ‘[t]he right of review on appeal is limited to errors which are prejudicial, and the burden, at least prima facie, of showing prejudice, is on appellant.’ ” Gilson v. Universal Realty Co., 378 S.W.2d 115, 121 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.). CNL having no standing to make the complaint which it now urges, we overrule points three and four.

Having found no error in the proceedings, the judgment of the trial court is affirmed.

STEPHENSON, J., not participating.


source: Caselaw Access Project

author: BREWSTER, Justice.

license: Public Domain

text:
    Bruce HANSON, Appellant, v. TOWN OF FLOWER MOUND, Appellee.
    No. 17745.
    Court of Civil Appeals of Texas, Fort Worth.
    July 9, 1976.
    Sessions, Sessions, Neill, Scucchi & Hatch, and W. R. Sessions, Dallas, for appellant.
    Hutchison, Price & Brooks, Dallas, for appellee.
   OPINION

BREWSTER, Justice.

Bruce Hanson sued the Town of Flower Mound seeking a judgment declaring void and unenforceable a tax levy for the year 1974 that was made by Town of Flower Mound on land owned by Hanson that was located on January 1, 1974, within the corporate limits of Flower Mound. Flower Mound cross-acted against Hanson seeking to recover from him delinquent taxes for 1974 on the property involved. The non-jury trial resulted in judgment being rendered decreeing that plaintiff, Hanson, take nothing from the defendant and that Town of Flower Mound recover from Hanson on its cross-action the amount of the delinquent taxes which totalled $29.50. Plaintiff, Hanson, has filed this appeal from that decree.

The parties stipulated that: Town of Flower Mound by appropriate ordinance operated on a fiscal year arrangement and that its material fiscal year involved here is from October 1,1974 to September 30,1975; that as of September 22, 1975, Town of Flower Mound has collected $93,000.00 in ad valorem taxes, and that its total tax roll for 1974 was $108,000.00; that Town of Flower Mound enacted on November 23, 1974, its Ordinance No. 11-74 which levied ad valo-rem taxes for the year 1974 at a rate of 30$ per $100 assessed valuation on all taxable property located within the corporate limits of the town as of January 1, 1974, in order to provide revenues for the payment of current expenses.

Hanson on this appeal urges two points of error wherein he contends (1) that the court erred in rendering the judgment against him because the law in question (Ordinance No. 11-74) was retroactively applied and was an ex post facto law and (2) the court erred because the tax assessed was retroactive, void, and in violation of the Texas Constitution, Art. 1, Sec. 16.

We overrule both of those points of error and affirm the trial court’s decree.

The question to be determined by us on this appeal is: Can the Town of Flower Mound levy a valid tax for the year 1974 by ordinance enacted and effective as of November 23,1974, on property located within the City as of January 1,1974, while operating on a fiscal year of October 1, 1974, to September 30, 1975?

We answer the question: Yes.

The law that controls the disposition of this case is set out in Cadena v. State, 185 S.W. 367 (Tex.Civ.App., San Antonio, 1916, writ ref.), as follows:

“All property owned on the 1st day of January is subject to any tax authorized by law, whether such taxes have been authorized theretofore or may be authorized during the year, and can be levied by the body given the power to levy at any time during the year. Laws naming the time for the levy of taxes are merely directory, and legal taxes can be levied whenever the necessity arises. Laws authorizing taxes are not retrospective so far as the year in which they are authorized is concerned.”

The fact that the taxing body operates on a fiscal year that is different from the tax year involved does not change the rule. As long as the tax is levied on a date that is during the tax year for which the tax is levied it is not retrospective.

In support of his contention that Flower Mound’s ordinance levying the tax is an ex post facto law and is in violation of Art. 1, Sec. 16 of the Constitution of Texas, Hanson relies on the case of Coffee v. Castleberry, 258 S.W. 889 (Tex.Civ.App., Amarillo, 1924, affirmed in Tex.Civ.App., 272 S.W. 767). We are convinced that that case is not in point. In the Coffee case the City had enacted an ordinance effective in March, 1922, by which it attempted to assess and levy taxes on property within its corporate limits for the year 1921. That court held that the 1922 ordinance that was enacted after the expiration of the year for which the taxes were assessed and levied, to wit: 1921, cannot be made to relate back and cover the year 1921. The 1922 ordinance by which the City attempted to levy and assess a tax for the already expired year of 1921 was decreed to. be void as being an ex post facto law and violative of Art. 1, Sec. 16 of our Constitution.

In the case before us the 1974 ad valorem tax was levied by the city ordinance that became effective on November 23, 1974. The ordinance levying the tax was thus enacted and became effective during the year (1974) for which the taxes were assessed.

In Masterson v. Town of Hedley, 265 S.W. 406 (Tex.Civ.App., Amarillo 1924, no writ hist.), the taxpayer’s contention was that because the city’s 1922 tax levy was not made until December 4, 1922, that it was a retroactive and invalid tax. That court said at page 407: “With reference to the contention that the levy was void because it was not made until December 4, 1922, suffice it to say, that the holding in Cadena et al. v. State ex rel. Leslie (Tex.Civ.App.) 185 S.W. 367, is to the contrary. It is there held that a levy may be made at any time during the year, and that laws naming the time for the levy of taxes are merely directory. (Citing authorities.)”

In that case the court at page 407 points out the distinction between the case before us and the Coffee v. Castleberry case, supra, that is relied on by Hanson by following the above quoted paragraph with the following: “If, however, an attempt was made to levy taxes for a previous year, such a levy would be void. Coffee v. Castleberry (Tex.Civ.App.) 258 S.W. 889.”

Additional cases that support our holding that the assessment and tax levy that is involved in this case is not invalid are: Blewitt v. Megargel County Line Independent S. Dist, 285 S.W. 271 (Tex.Com.App., 1926, opinion adopted); Sawyer v. Bd. of Regents of Clarendon Junior College, 393 S.W.2d 391 (Tex.Civ.App., Amarillo, 1965, no writ hist.), and Rachford v. City of Port Neches, 46 S.W.2d 1057 (Tex.Civ.App., El Paso, 1932, no writ hist.).

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    CITY OF WICHITA FALLS, Appellant, v. Kenneth J. HOLLIS, Appellee.
    No. 17804.
    Court of Civil Appeals of Texas, Fort Worth.
    July 9, 1976.
    H. P. Hodge, Jr., City Atty., Wichita Falls, for appellant.
    Banner, McIntosh & Dobbs, Wichita Falls, for appellee.
   OPINION ON MOTION FOR EXTENSION OF TIME TO FILE STATEMENT OF FACTS

MASSEY, Chief Justice.

The City of Wichita Falls, as appellant, has filed a motion for extension of time within which to file a Statement of Facts which was due to be filed June 21, 1976. The motion was filed within the fifteen day period provided by T.R.C.P. 21c, “Extensions of Time on Appeal.”

The motion affirmatively shows that the appellant’s motion for new trial was overruled on April 22nd, 1976, and that on May 25, 1976, it mailed a letter to Mr. James Hanks, the official Court Reporter for the 78th District Court, ordering the preparation of the Statement of Facts. In other words it was not until the 34th day following the day its motion for new trial was overruled that appellant requested this part of the appellate record.

Nothing appears in the instruments filed by appellant which constitutes any explanation concerning why there was a 34 day delay in ordering the Statement of Facts. In its reply to the contest to its motion appellant merely says: “Appellant would urge that a request for a statement of facts some 30 days after the judgment became final is not ‘dilatory or laggardly’ ”.

Mr. James Hanks, the Court Reporter who would prepare the statement of facts would be unlikely to accomplish such for at least six months even if appellant had made timely request therefor. This fact has given us some concern. It appears that we would have judicial knowledge that even if requested in due time Mr. Hanks could not perform as anticipated by those who promulgated our Rules of Civil Procedure. Therein is provided a sixty day period for filing statements of facts in appealed cases. Pending before this Court in another case is a 5th Motion for Extension of Time to File a Statement of Facts which was due to have been filed over one year ago, but which is not yet available because Mr. Hanks has not yet prepared it. He has made affidavit in support of the 5th motion for extension that he cannot be sure that he will be able to prepare it until July 29,1976.

Apparent is the inconvenience to this Court as well as to counsel in the necessary accommodation of its docket to Mr. Hanks’ ability to supply a record.

We have concluded that all the foregoing is without importance to the determination of the merits of appellant’s motion for time extension. It is to appellant’s delay in requesting the record that we must confine consideration.

We have concluded, and therefore hold, that the 34 day delay in requesting the statement of facts constitutes a failure of compliance with the provisions of Rule 21c as a matter of law, there having been no reasonable explanation of the failure to timely file the same. That is so because there is no explanation whatever why it had not earlier requested that the statement of facts be prepared.

Sloan v. Passman, 536 S.W.2d 575 (Tex.Civ.App., Dallas, 1976) has just been noticed. In that case there was a 42 day delay in ordering a transcript from the clerk of the court and there was no explanation of the occasion for delay. The court held that as a matter of law there was not compliance with the provisions of Rule 21c, and that therefore the motion for extension of time within which to file the appellate record should be denied. Here we make the identical holding relative to the 34 day delay in ordering the statement of facts.

We write no further save to state that we totally agree with the rationale and reasoning in the extended opinion of the Dallas court in Sloan v. Passman, supra.

The motion is denied.


author: CHADICK, Chief Justice.

text:
    James J. HARTNETT, Administrator of the Estate of Jerry A. Jackson, Deceased, Appellant, v. ADAMS & HOLMES MORTGAGE COMPANY, INC., John David Holmes and Western Mortgage Investors, Appellees.
    No. 8339.
    Court of Civil Appeals of Texas, Texarkana.
    July 13, 1976.

      James J. Hartnett, Dallas, for appellant.
    Don R. Hancock, Austin, Robert M. Roller, Coke & Coke, Dallas, for appellees.
   CHADICK, Chief Justice.

This is an appeal from a summary judgment in a usury case. James J. Hartnett, Administrator of the Estate of Jerry A. Jackson, Deceased, as plaintiff instituted this action in the trial court and named as defendants Adams & Holmes Mortgage Company, Inc., John David Holmes and Western Mortgage Investors. The trial court entered a take nothing judgment. Administrator Hartnett perfected an appeal. The judgment of the trial court is affirmed.

Appellant Hartnett briefed two points of error, viz:

“POINT I. THE PROBATE COURT ERRED IN HOLDING THAT A CAUSE OF ACTION FOR RECOVERY OF STATUTORY PENALTIES FOR USURY CANNOT BE BROUGHT BY THE ADMINISTRATOR OF THE ESTATE OF A DECEASED WHO HAS BEEN CHARGED USURIOUS INTEREST.
POINT II. THE PROBATE COURT ERRED IN RULING THAT PLAINTIFF COULD NOT TAKE A NON-SUIT ON A PORTION OF THE CLAIMS PRESENTED IN HIS PETITION.”

Appellees responded and supplemental and reply briefs followed. Counterpoints and statements in successive briefs narrow the issues presented by the appellant’s first point of error to this:

1. Was Jerry A. Jackson, deceased, an obligor, as that term is used in Tex. Rev.Civ.Stat.Ann. art. 5069-1.06(1), on the note in suit?
2. May the administrator of Jackson’s estate maintain a cause of action to recover usurious interest forfeited to Jackson or his estate by Art. 5069-1.-06(1)?

Western Mortgage Investors and Adams & Holmes Mortgage Company, Inc., acting as lender and broker, respectively, loaned $525,000.00 to a corporate entity, Jerry A. Jackson Enterprises, Inc. The loan was evidenced by a promissory note dated October 18, 1973, secured by a deed of trust on an apartment complex and was personally guaranteed by the deceased, Jerry A. Jackson.

Jackson’s written guaranty agreement waived the requirement otherwise imposed by law that the holder of the note exhaust it’s rights or take action against the maker, Jerry Jackson Enterprises, Inc., as a condition precedent to Jackson’s liability. Guaranties of this nature are absolute. Universal Metals & Machinery, Inc. v. James T. Bohart, et ux, 19 Tex.Sup.Ct.J. 360 (1976); 539 S.W.2d 874 (Tex.1976). Jackson’s liability is contractual, the result of the guaranty agreement, as stated in El Paso Bank & Trust Co. v. First State Bank, 202 S.W. 522 (Tex.Civ.App. El Paso 1918, no writ):

“It . . . is a primary and positive agreement, and the breach of the principal’s contract to pay the sum promised ipso facto imposes upon the guarantor a complete liability.”

Under the record Jackson is an absolute guarantor. The next phase of review is to determine whether Jackson is in law a maker of the note in suit.

The allegedly usurious note did not by its terms obligate or bind Jackson in his individual capacity to pay either interest or principal, as he, individually, was not a party to it. This factual certainty establishes that Jackson is not obligated by the note itself and precludes Jackson’s liability thereon as an actual maker. Universal Metals & Machinery, Inc. v. James T. Bohart, et ux, supra; E’Town Shopping Center, Inc. v. Lexington Finance Co., 436 S.W.2d 267 (Ky.Ct.App.1969); Tex.Bus.& Comm.Code, Sec. 3.401. The last cited case was relied upon in Bohart and it says:

“Conceding, as the explanatory note following this subsection (3.416) of the UCC says, that the liability of a guarantor is made the same as that of a co-maker, it does not follow that he is in fact a comaker . . . ”

See also Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182 (1938, opinion adopted) and Sud v. Morris, 492 S.W.2d 335 (Tex.Civ.App. Beaumont 1973, no writ).

Forfeitures and penalties for violations of the usury law are prescribed by Tex.Rev. Civ.Stat.Ann. art. 5069-1.06. Section (1) of the statute reads:

“(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.”

The section is a part of the comprehensive restructuring of statutory law governing interest, consumer credit, and consumer protection enacted by the legislature in 1967. By plain language the statute makes it clear an obligor contemplated by Article 5069-1.06 is a person who pays, is charged or has contracted to pay interest at a rate in excess of that allowed by law.

Not being in law a maker of the note Jackson was not an obligor therein though as an absolute guarantor he was liable for payment under the guaranty contract. Ordinarily, the legal representative of a decedent is bound by an executory contract of the decedent when its completion does not require personal performance by the decedent. Neyland v. Brammer, 73 S.W.2d 884 (Tex.Civ.App. Galveston 1933, writ dism’d); Wilcox v. Alexander, 32 S.W. 561 (Tex.Civ.App. San Antonio 1895, no writ); Re Burke, 44 A.L.R. 1341; 198 Cal. 163, 244 P.2d 340 (1926). In this instance, Jackson not being an obligor bound by the terms of the alleged usurious note itself nor an obligor contemplated by Article 5069-1.-06, the administrator of his estate occupies no different status in this regard.

In his status as an absolute guarantor, Jackson and necessarily the legal representative of his estate, is prohibited from prosecuting an action to recover a usury penalty by Tex.Rev.Civ.Stat.Ann. art. 1302-2.09. The article denies a guarantor of a corporate note, such as this in suit, the right to claim the note is usurious or defend upon that ground. Universal Metals & Machinery, Inc. v. James T. Bohart, et ux, supra. Appellant’s first point of error is overruled.

Jackson’s administrator pled in separate paragraphs, and as separate counts that Jackson owned the apartment complex and that appellees violated his ownership rights by a wrongful foreclosure that deprived him of possession. The facts and circumstances alleged in each count to show wrongful foreclosure overlap but are in part separate and distinct. The record shows a timely request by Jackson’s administrator to take a non-suit on the second count (par No. VI) pursuant to Tex.R.Civ.P. 164. The trial judge overruled the motion. Such denial was not erroneous. A single cause of action may not be split and the action tried piecemeal. The pleadings show a single cause of action. Foreclosure gave rise to but one cause of action though it might be wrongful because of a number of separate acts or omissions. The elements of a cause of action “ . . . consist of a substantive right, the violation or threatened violation of that right, and where necessary the consequent damage.” See Keeton, Action, Cause of Action and Theory of the Action in Texas, 11 Texas L.Rev. 145, 286 (1933); 1 McDonald’s, Texas Civil Practice, Sec. 2.02. No case precisely in point has been cited or found but the decided cases give general support to the quoted rule framed by Dean Keeton. Appellant’s second point of error is overruled.

The appellees’ motions for rehearing are granted. The opinion filed herein on May 4, 1976, is withdrawn and this opinion substituted for it. For the reasons discussed, the judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    Ruby FLETCHER, Appellant, v. TRAVIS COUNTY CHILD WELFARE DEPARTMENT, Appellee.
    No. 12441.
    Court of Civil Appeals of Texas, Austin.
    July 14, 1976.
    Rehearing Denied Aug. 18, 1976.

      Donald R. Flournoy, Austin, for appellant.
    Jacqueline Strashun, Jed I. Oliver, Juvenile Court Staff Attorneys, Austin, for ap-pellee.
   O’QUINN, Justice.

This action, brought in June of 1975 by the Texas State Department of Welfare, acting through the Travis County Welfare Unit, seeks termination of the parent-child relationship of Ruby Fletcher, and three male respondents, as parents of three minor children.

After hearing in December of 1975, the district court of Travis County terminated the relationship of each parent with the children and appointed the Welfare Unit permanent managing conservator of the three children.

Ruby Fletcher has appealed and brings three points of error. Appellant contends that (1) there was no evidence to support the judgment, (2) that the findings in the judgment are against the great weight and preponderance of the evidence, and (3) that the evidence relied on by the court was insufficient to support the judgment. We will overrule all points and affirm the judgment of the trial court.

The mother of the children answered and contested the action. Each of the fathers was represented at the hearing by an attorney ad litem, and none has appealed. The Welfare Unit alleged that the mother “engaged in conduct which endangers the physical and emotional well-being of these children . . .” Trial was before the court, sitting without a jury. The court entered judgment in which it found “that it is in the best interest of the subject children that all parental rights of all Respondents be terminated . . .”

No findings of fact or conclusions of law were filed and none was requested.

Under the first point of error appellant contends the court erred in admitting into evidence a social report prepared by a caseworker for the Welfare Unit. Under section 11.12 of the Texas Family Code a court, in a suit affecting the parent-child relationship, may order preparation of a social study into circumstances and conditions of the child, and of the home. Section 11.12(c) also requires that the social report be made a part of the record of the suit. The Houston Court of Civil Appeals (1st District), in Magallon v. State, 523 S.W.2d 477 (Tex.Civ.App.1975, no writ), interpreted section 11.14 of the Texas Family Code and held that a social study is not evidence upon which the court’s findings may be based unless the report is properly admitted into evidence.

The social report in this proceeding was properly admitted into evidence. It was prepared by Mildred Sherry, a caseworker who had been appellant’s caseworker for more than eighteen months. Sherry testified that the report was based upon her personal knowledge. Although the report contains some statements which might be considered hearsay, in a nonjury trial the appellate court will usually presume that the trial court did not consider inadmissible evidence and will sustain the judgment if there is other competent evidence to support the judgment. 24 Tex.Jur.2d Evidence, sec. 553 (1961); Krueger Eng. & Mfg. Co. v. Oil & Gas Bldg. of Houston, 381 S.W.2d 150 (Tex.Civ.App., Tyler 1964, no writ). We find there is sufficient competent evidence in the record to support the judgment. The first point is overruled.

In considering the mother’s contention in her role as appellant that there was no evidence to support the trial court’s judgment, we have viewed the record in the light most favorably in support of the trial court’s finding that the parent-child relationship should be terminated in the best interest of the child. In examining appellant’s third point, that the findings of the trial court were against the great weight and preponderance of the evidence, we have considered all the evidence.

From an examination of the record, under either of these precepts of appellate review, we conclude that the trial court’s finding, that the mother knowingly engaged in conduct which endangers the physical and emotional well being of the children, is supported by a preponderance of the evidence of probative value.

The record shows that the conduct of the mother first came to the attention of the Welfare Unit when the Unit was appointed managing conservator of the child, Rondy Ann, and the mother became involved in a custody dispute with the child’s father, Clarence Hill. In January of 1974, a caseworker was assigned to appellant’s case for the purpose of ascertaining whether the children’s welfare was adequately protected. This supervision was considered necessary because the record indicates that appellant has a history of mental instability, resulting in a pattern of erratic and irrational behavior.

Mildred Sherry, who subsequently worked with appellant, testified that when she was assigned to the case, appellant had left Austin with the children without notifying the Welfare Unit which was then acting as managing conservator of Rondy. Appellant later was returned to Austin by the Salvation Army of Dallas, after she became pregnant by a man not identified. That pregnancy terminated May 13, 1975, with birth of Bernard Mark Fletcher. Sherry testified that, following the birth of Bernard, she received a “referral” from a neighbor of appellant reporting that Bernard was in bad condition “with eyes shrunken and arms like sticks,” and that the other children were found unattended.

A physician testified at the trial that he had seen Bernard when the boy was one day old and that, at the time, he was a normal, healthy child. The doctor examined Bernard, more than one month later, after Sherry found the child in an apparently malnourished condition. The doctor testified that the subsequent examination revealed Bernard had gained only six ounces since birth, was dehydrated from diarrhea, and was chronically malnourished. After examination of the child, the doctor recommended to appellant that Bernard be hospitalized at once, but felt that, from the mother’s reaction, she would not carry out the recommendation. The child was hospitalized and treated after the Welfare Unit obtained an emergency order from the court.

There is evidence in the record also that appellant’s lack of supervision and care of her children endangered their welfare in that Rondy was allowed to consume some of appellant’s Thorazine tablets, which required emergency treatment at Bracken-ridge Hospital in Austin.

Sherry testified further that the mother’s behavior has not, to her knowledge, improved, nor had appellant’s home life stabilized as of the date of the trial.

The trial court had opportunity to observe the parties and to note their demean- or and personalities in the light of human experience. We find the evidence supports the trial court’s finding that appellant engaged in conduct which has and will endanger the physical or emotional well being of the children, and that it will be in the best interest of the children to terminate the parent-child relationship.

The judgment of the trial court is affirmed.

Affirmed.

      . The Welfare Unit alleged that Dallas Homer was the father of Pamela Fletcher, a girl born May 29, 1972; that Clarence Hill was the father of Rondy Ann Fletcher, a girl born July 23, 1973; and that the father of Bernard Mark Fletcher, a boy born May 13, 1975, was unknown. Although the State alleged that the father of Bernard is unknown, appellant contends that Clarence Hill is the child’s natural father. Ruby Fletcher is the natural mother of the three children.


author: STEPHENSON, Justice. KEITH, Justice.

text:
    Dr. G. E. CEZEAUX et al., Appellants, v. Bob D. LIBBY, Appellee.
    No. 7820.
    Court of Civil Appeals of Texas, Beaumont.
    July 15, 1976.
    Rehearing Denied Aug. 5, 1976.
    O. C. Lilienstern, Houston, for appellant.
    Joseph D. Jamail, John Gano, Houston, for appellee.
   STEPHENSON, Justice.

This is an action for damages for medical malpractice. Trial was by jury, and judgment was rendered for plaintiff on the verdict. The parties will be referred to here as they were in the trial court.

Plaintiff, Bob D. Libby, brought this suit against Dr. G. E. Cezeaux, and his partners, as defendants. The jury found that Dr. Cezeaux, individually and on behalf of his partnership, did not perform his medical services as a reasonably prudent anesthesiologist should have done in the exercise of ordinary care under the same or similar circumstances in (a) “failing to administer to Plaintiff an adequate dosage of proper anesthesia to insure unconsciousness and immobility during the surgery in progress”; (b) “failing to properly supervise the anesthetist nurse Schutter to see that she administered an adequate amount of dosage of proper anesthetic to insure that Plaintiff would remain unconscious and immobile during the surgery in progress”; and (c) “failing to detect that the Plaintiff was inadequately anesthetized and was, in fact, regaining consciousness in the midst of surgery.” The jury also found that each of such acts of negligence was a proximate cause of plaintiff’s injuries. None of those jury findings is attacked on this appeal.

The uncontradicted evidence shows the following occurred: Plaintiff suffered a detached retina in his right eye on July 1971, and surgery was performed reattaching the retina with a buckle. September 15, 1972, the surgery was performed to remove the buckle; it was out of this surgery that plaintiff received the injuries which made the basis of this suit. At a critical point in the surgery while the doctor had a needle in his eye making an injection, plaintiff moved down the table, raised up off the table, tore off the drapes covering his face, tore out the sutures — all resulting in the injuries complained of which are described in more detail later. Dr. Cezeaux admitted on this trial that plaintiff moved during the surgery because he was inadequately anesthetized.

The jury found plaintiff’s damages to be in the amount of $500,000. Defendants’ primary point of error is that the amount of such damages is excessive. This court has written at length on the subject of appellate review of this subject, in the majority and concurring opinions found in Collins v. Gladden, 466 S.W.2d 629 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.). Reference is made to that case for our views as to the standards we should follow in reviewing monetary awards in suits for damages in cases involving personal injuries and allowances for pain and suffering.

The elements of damages which the jury was instructed it could consider were: his past physical pain; the physical pain which in reasonable probability he will suffer in the future; his past and future mental anguish, including disfigurement, humiliation, embarrassment and worry concerning - his well-being; and his loss of earning capacity which in reasonable probability he will sustain in the future.

The evidence in this record supporting the award of $500,000 is as follows: Plaintiff’s movement while the surgery was in progress and while the surgeon had a needle in his eye making an injection tore out the sutures in the drapes, tore the skin off of his eyelid, building up great shock pressure in the eyeball, rupturing the coat of the eye and hemorrhaging the eye. All of this resulted in a total loss of sight in such right eye.

The doctor attending plaintiff after this surgery testified: The condition of the right eye was very red and continued to worsen. When he first saw plaintiff after such surgery, plaintiff could see light, but by January 1973 the eye was completely blind. All through 1973 the eye continued to react, was red and inflamed. The eye was painful all during that time. By November of 1974 the eye was a hazy yellowish. The doctor became afraid of a sympathetic ophthalmia disease, and the decision was made that it was best to remove the eye. “So, there was no sense in allowing him to continue with a blind painful eye, and a chance of losing his other eyesight from it.” The right eye was removed (enu-cleated) in December 1974, and an Allen implant performed to accommodate an artificial eye made of plexiglass. Plaintiff was fitted with such a prothesis and tries to wear it. It irritates him, and he cannot wear it constantly. Plaintiff is embarrassed about the appearance of his right eye and of the mucous and tears which run down his cheek. Plaintiff is anxious and worries about having only one eye and having a job handicap. He has some pain in his eye which will continue the rest of his life. He will also have anxiety the rest of his life.

It was stipulated that a person forty-one years of age has a life expectancy of 30.7 years. Plaintiff testified as follows: He was forty-one years old when this surgery took place, and forty-four at the time of trial. He is a vice president of a general insurance company. After the retina was reattached, he could see with some limited vision, but he could perform his work and participate in his hobbies — golf, hunting, and fishing. The buckle began to cause him some irritation and pain; so, he returned for the surgery to remove the buckle. He was not aware of anything that happened in the operating room. His next recollection was the following morning when he was told it was time for breakfast. His eye was covered with a bandage, and a bloody fluid began seeping down his cheek. A doctor came into the room, removed and changed the bandage but did not tell him what had happened. Two days later defendant, Dr. Cezeaux, came into his room and told him about his moving on the operating table. He was in constant pain from the time of this operation until the eye was removed. The eye was a red color and angled out about fifteen degrees. He kept drops and medicine in it four times a day. He could distinguish light for a short time and then nothing. The eyelid drooped pretty badly. His work requires a great deal of reading, but he cannot read as he had in the past because of eyestrain on his left eye. The left lens in his glasses was changed to bi-focal, and he uses a magnifying glass to help him read. He tried playing golf but gave it up when he got a bug in his left eye. He also tried fishing but gave that up when he became afraid of getting a hook in his left eye. He does not drive a car at night and does not get on the highway anytime. He can’t see to pass a car because he cannot judge distance. His wife goes on all trips with him. Since he has been trying to use the artificial eye, it causes him some pain and irritation. He cannot sleep with it inserted in his eyeball. He constantly worries about something happening to his left eye and about what would happen if he lost his present job. He sees the socket and the eyelid. There is scarring on the eyelid where it was torn, and there is a quarter inch gap in the upper eyelid where there are no eyelashes. He has recurring nightmares about waking up in the hospital room. He has had two pretty embarrassing situations while trying to wear the prothe-sis. He was in a meeting with the head of the data processing department of his company, when he brushed his eye with his hand, and it fell out on the floor. The other man just turned and walked away.

By way of summary, we consider all of the evidence before us, including the following: The fact that plaintiff has lost his right eye by enucleation; the physical pain and suffering, past and future, borne by plaintiff. According to his testimony supported by his doctor, he suffered constantly from the date of this operation, September 15, 1972 until December 1974; the fact that the use of the artificial eye causes him pain and irritation which his doctor says will continue the rest of his life.

Also considering the evidence as the mental anguish, past and future, including his disfigurement, humiliation, embarrassment and worry concerning his well-being; the .testimony by plaintiff, also supported by his doctor, regarding the fact that he will have anxiety the rest of his life; also considering the evidence as to loss of earning capacity in the future — we come to the conclusion that $500,000 is a reasonable sum and do not find it to be excessive. That point of error is overruled.

Defendants’ remaining points of error complain that the presiding judge abused his discretion in assigning this case a special setting in violation of the local rules of the District Courts of Harris County. The complaint is also made that it was error not to strike the preferential setting or grant defendants’ motions for continuance.

The record before us shows counsel for plaintiff filed a motion for preferential setting on the 10th of April 1975, asking for the setting for June 23, 1975. Such motion was heard April 14, 1975, and granted. No record was made at that hearing. Then May 14, 1975, counsel for defendant Cez-eaux filed a “vacation letter” asking that the week of June 23,1975, be designated as a vacation week for him. Then on June 23, 1975, such counsel filed the motion to strike the preferential setting and to grant a motion for continuance. Such motion was heard June 23, 1975, and overruled. No record of that hearing is brought before this court for review.

This case proceeded to trial on June 23, 1975. Defendants have made no effort to demonstrate that any harm resulted to them because this case went to trial. There is no suggestion that they were deprived of the testimony of any witness, or that they were unable to put on their defense in any respect.

From our study of the record before us there is no showing of abuse of discretion on the part of the presiding judge. In any event, there is no evidence of any error which was reasonably calculated to cause or probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434. Such points of error are overruled.

AFFIRMED.

Non-Concurring Opinion

KEITH, Justice.

Whether or not a judgment is excessive is a matter peculiarly within the jurisdiction of the Courts of Civil Appeals and is not reviewable by the Supreme Court. Beaumont, S. L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899, 904 (1934); Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416, 421 (1936). See also my concurring opinion in Collins v. Gladden, 466 S.W.2d 629, 637 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

Consequently, it would be an exercise in futility to file a dissent in this cause; and, an articulation of the reasons prompting such dissent would lend nothing to the jurisprudence of this state. Thus, while I do not file a dissent to the affirmation of the judgment, neither do I concur in the affirmation of the monetary award in this cause. Although I have participated in the disposition of this cause, I dissociate myself from the result reached by the majority.

       Drapes are paper toweling which are sutured be performed. the upper and lower eyelids so the surgery can


author: DIES, Chief Justice. KEITH, Justice

text:
    NOBILITY HOMES OF TEXAS, INC., Appellant, v. John W. SHIVERS et al., Appellees.
    No. 7808.
    Court of Civil Appeals of Texas, Beaumont.
    July 15, 1976.
    Rehearing Denied Aug. 5, 1976.

      Charles W. Boyd, Conroe, for appellant.
    J. Robert Liles, Conroe, for appellees.
   DIES, Chief Justice.

Defendant below appeals from an adverse judgment rendered after a trial to the court, and we will designate the parties as they appeared in the trial court. Plaintiffs purchased a mobile home from one Marvin Hurley d/b/a Lakeview Mobile Homes, an independent dealer in Baytown, who has since gone out of business and cannot be located. Hurley had previously purchased this unit from the defendant, the manufacturer thereof. Hurley was not an agent for the defendant.

Plaintiffs alleged, and the trial court found, that the mobile home was defectively constructed; that at the time Hurley delivered it to plaintiffs, it was not free from defects in workmanship and material; that it was not fit for the purposes for which it was sold (i. e., a place of habitation); and that the difference in the reasonable market value thereof at the time of the purchase and the original contract price was $8,750. Judgment was rendered for plaintiffs for such amount from which this appeal has been perfected. We affirm.

By defendant’s first point of error, it asserts that it could not be liable for any damages to plaintiffs because there was no privity of contract between them, and plaintiffs are only seeking economic loss.

The question of whether there must be privity of contract between parties before one may recover for purely economic damages to a product and its resulting diminution in value has not been firmly answered in this State. Comment “Implied Warranties and ‘Economic Loss’ ” 24 Baylor L.Rev. 370 (1972). The current weight of authority in this jurisdiction, as stated by the dissent, seems to be that such privity is required. See, e. g., Foremost Mobile Homes Mfg. Corp. v. Steele, 506 S.W.2d 646 (Tex.Civ.App.—Fort Worth 1974, no writ); Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App.—Austin 1971, no writ); and Cloer v. General Motors Corporation, 395 F.Supp. 1070 (E.D.Tex.1975). The Supreme Court of Texas has not yet ruled directly on this issue.

The position of the intermediate courts in Texas does not represent the trend of the cases in other jurisdictions, nor does it reflect the wiser and more progressive approach as it appears to this writer. The generally recognized landmark case for support of the principle that privity is not required in pure economic loss cases is Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), There, Santor brought suit against the manufacturer of a carpet which he had purchased from one of its distributors. The only contract was between Santor and the distributor, which had subsequently gone out of business. Santor sought recovery only for the loss of value of the carpeting.

After a thorough discussion of the positions of the various states and the concomitant rationale of the divergent views, the New Jersey Supreme Court held that privity was not necessary to maintain an action by a consumer against the manufacturer for redress of an economic loss. The Court restated the holdings which do not require privity for recovery in instances of personal injury and said:

“But we see no just cause for recognition of the existence of an implied warranty of merchantability and a right to recovery for breach thereof regardless of lack of privity of the claimant in the one case [as in personal injury] and the exclusion of recovery in the other simply because loss of value of the article sold is the only damage resulting from the breach.
sjs ⅛ * * # *
“From the standpoint of principle, we perceive no sound reason why the implication of reasonable fitness should be attached to the transaction and be actionable against the manufacturer where the defectively-made product has caused personal injury, and not actionable when inadequate manufacture has put a worthless article in the hands of an innocent purchaser who has paid the required price for it. In such situations considerations of justice require a court to interest itself in originating causes and to apply the principle of implied warranty on that basis, rather than to test its application by whether personal injury or simply loss of bargain resulted from the breach of the warranty. True, the rule of implied warranty had its gestative stirrings because of the greater appeal of the personal injury claim. But, once in existence, the field of operation of the remedy should not be fenced in by such a factor.” Santor v. A and M Karagheusian, Inc., supra at 309.

The court accepted these logical principles of equity and incorporated with them the substantive law of strict liability in tort. It again refused to accept the personal injury/economic loss dichotomy and held that only through tort liability would the burden of the injury be placed where it should be — on the maker of the product. This is because, though the breach arose initially from the sales contract, it was a ‘tortious wrong suable by a noncontracting party’ ”. Santor, supra at 312 [quoting from Goldberg v. Kollsman Instrument Corporation, 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81, 82 (1863)].

This position has been adopted in other jurisdictions: Randy Knitwear, Inc. v. American Cyanamid Company, 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962); State Farm Mut. Auto. Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449 (1961); Cova v. Harley Davidson Motor Company, 26 Mich.App. 602, 182 N.W.2d 800 (1970); Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177 (3d Cir. 1972); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441 (Ky.1965); Hiigel v. General Motors Corporation, 544 P.2d 983 (Colo.1975); Air Products & Chem., Inc. v. Fairbanks Morse, Inc., 58 Wis.2d 193, 206 N.W.2d 414 (1973) [applying Pennsylvania law]; Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88, 326 N.E.2d 267 (1975). See also Baughman v. Quality Mobile Homes, Inc., 289 So.2d 376 (La.App.1973); Coleman v. Hertz Corp., 534 P.2d 940 (Okl.Ct.App.1975); Hawkins Construction Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643 (1973). And see generally Prosser, “The Assault Upon the Citadel (Strict Liability to the Consumer)” 69 Yale L.J. 1099 (1960); Annot. 16 A.L.R.3d 683 (1967); and Blum v. Richardson-Merrell, Inc., 268 F.Supp. 906 (D.Md.1965) which criticizes the harshness of the rule requiring privity.

In determining that privity is not a requirement in order for a consumer to seek damages against a manufacturer for economic loss, the cases have predicated recovery upon basically three theories:

1. establishing exceptions to the general rule, such as the creation of a fictional privity based upon express and/or implied warranties. See, e. g., Elanco Products Company v. Akin-Tunnell, 474 S.W.2d 789 (Tex.Civ.App.—Amarillo 1971, no writ); Ford Motor Company v. Lemieux Lumber Company, 418 S.W.2d 909 (Tex.Civ.App.—Beaumont 1967, no writ).
2. making flat statements that no privity is required, apparently in the posture of an extension of McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967) [which itself involved personal injuries].
3. considerations of public policy — sometimes on the basis of strict liability, see, e. g., Santor v. A and M Karagheusian, Inc., supra, and Hiigel v. General Motors Corporation, supra (544 P.2d 983); but also on the basis of an intermingling with real property concepts in concluding that a warranty is said to run with the product. See 24 Baylor L.Rev., supra at 381.

In applying the doctrine of strict liability, recent courts have done so on the basis of the Restatement of Torts, § 402A. Hiigel v. General Motors Corporation, supra at 989. This particular approach has been criticized by some writers as completely disregarding the law of sales. Prosser, “The Fall of the Citadel,” 50 Minn.L.Rev. 791 (1969). One eminent Texas authority has expressed the opinion that the question should be concerned with sales law and the application of the Uniform Commercial Code. Keeton, “Torts,” 23 Sw.L.J. 1 (1969).

In this context it is to be noted that the writers of the Texas version of the Uniform Commercial Code declined to adopt any of the alternatives which were put forth by the Code. The legislature thus enacted the following provision as to whether privity was needed within the context of the discussion before us:

“This chapter does not provide whether anyone other than a buyer may take advantage of an express or implied warranty of quality made to the buyer or whether the buyer or anyone entitled to take advantage of a warranty made to the buyer may sue a third party other than the immediate seller for deficiencies in the quality of the goods. These matters are left to the courts for their determination.” Tex.Bus. & Comm.Code Ann. § 2.318 (1968).

The effect of this neutral legislative position has been interpreted differently by the Texas courts. One school of thought is that § 2.318 demonstrates an intention that the issue be decided according to traditional common law rules incorporating privity. Eli Lilly and Company v. Casey, 472 S.W.2d 598, 600 (Tex.Civ.App.—Eastland 1971, writ dism’d). The other view is that the recovery in such cases is to be based upon considerations of sales law separate and apart from the law of torts. Monsanto Company v. Thrasher, 463 S.W.2d 25, 27 (Tex.Civ.App.—Amarillo 1970, no writ). We decline to accept either rationale, and adopt the view that the legislature is of the opinion which it enunciated — its unambiguous expression of neutrality. We proceed from this position.

It is our opinion that the interests of equity and justice will best be served by accepting the view that privity in cases now under consideration should not be required. Matters of public policy dictate that no different treatment should be accorded in instances where a consumer suffers personal injury or damage to other property, and situations where the harm is the diminution of value of the product itself and the resulting economic loss. In both circumstances there is an “injury” to the public sector, whose only action in the commercial transaction is to purchase goods placed in the stream of commerce by the manufacturer. To-insulate the maker of the goods under these conditions can result only by resort to reasoning which is no longer viable in our current economic practices and present sense of justice.

We do not base our ruling on strict liability in tort within the frame work announced by Santor because § 402A is specifically predicated upon “physical harm to user or consumer.” Restatement (Second) of Torts, § 402A (1965). We adhere to the concept that there is an implied warranty of reasonable fitness of a product as a matter of public policy. See Annot., 16 A.L. R.3d 683, 699 § 6 (1967) and the discussion and cases cited therein. This concept is not adverse to the jurisprudence of this state. The principle was applied over three decades ago with respect to contaminated food. In Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942) the Court said that a nounegligent manufacturer who processes and sells contaminated food to a retailer for resale for human consumption is liable to the consumer for injuries sustained by him under an implied warranty imposed by operation of law as a matter of public policy, irrespective of the fact that the consumer had no contract with the original manufacturer.

That the trend of the law in this regard was to reduce the harshness of requiring privity was recognized long ago by the highest court in this State. In permitting the city of Waco to recover for the costs of installing pipe which was defective and had become worthless, the Supreme Court did not require privity between the city and the manufacturer of the pipe and stated:

“[These cases illustrate] the tendency of modern courts away from the narrow legalistic view of the necessity of formal immediate privity of contract in order to sue for breach of an express or implied warranty.” United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432, 435 (1937).

A practical consideration also supports the position advanced by this Court today; the problem of wasteful litigation. In quoting from Randy Knitwear, Inc. v. American Cyanamid Company, supra (226 N.Y.S.2d 363, 181 N.E.2d 399) the Court in Santor restated:

“It is true that in many cases the manufacturer will ultimately be held accountable for the falsity of his representations, but only after an unduly wasteful process of litigation. Thus, if the consumer or ultimate business user sues and recovers, for breach of warranty, from his immediate seller and if the latter, in turn, sues and recovers against his supplier in re-coupment of his damages and costs, eventually, after several separate actions by those in the chain of distribution, the manufacturer may finally be obliged ‘to shoulder the responsibility which should have been his in the first instance.’ (Hamon v. Digliani, 148 Conn. 710, 717, 174 A.2d 294, 297 . . .).” Santor v. A and M Karagheusian, Inc., supra (207 A.2d at 310).

The pursuit of such wasteful litigation which is often inadequate should not be required in this State.

This jurisdiction should refrain from the “narrow legalistic view” that privity is necessary before the public may recover for damages suffered when the product diminishes in value and/or becomes worthless because of the defective workmanship of the manufacturer. Defendant’s Point of Error No. 1 is overruled as being without merit.

By Points of Error Nos. 8-12, defendant complains that there is insufficient evidence to support the finding that the mobile home was constructed with defective workmanship; and that there is insufficient evidence to support the finding that the difference in the reasonable market value at the time of purchase and the original contract price was $8,750.

The evidence shows that the roof had been spliced and the resulting leaks had caused damages to the bathroom and one of the bedrooms; that the floor seams had begun to separate and there were gaps between some of the floors; and that there were no floor joists for support; and that when any of the floors got wet, there was no support at all. The plaintiffs’ expert further stated that various doors and windows were not properly installed and leaked; and that some of the kitchen cabinets were pulling away from the walls and that some of the countertops were bowed. It was his opinion that the value of the mobile home in its present condition was worth approximately $1,000.

The defendant attempted to show that the cost of repairs would not amount to $1,000 but has not contested the fact that the above defects existed. It was defendant’s position that the various leaks from pipes and faucets could have been caused by the transportation of the home and that the defendant used the same basic materials as other manufacturers of mobile homes and adequately tested the same. The home was originally purchased for $22,168.75, including taxes, finance charges, license, and insurance.

There was sufficient evidence that the home was constructed in an unwork-manship-like manner and that the value of the home was considerably below the original purchase price. Points of Error Nos. 8-12 are without merit and are overruled.

We find no merit to defendant’s remaining points, and they are likewise overruled. The judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice

(dissenting).

The majority, employing a variety of the deep pocket theory, fixes liability upon a manufacturer of a mobile home when there is no privity of contract between the parties and no injury to person or property. The French jurists speak of this deep pocket theory as “le risgue créé.”

I find it extremely difficult to generate sympathy for the manufacturer of a defective mobile home relying wholly upon the doctrine of privity as its defense. Yet, I decline to join in this departure from solidly established Texas precedent simply because our plaintiff has made a bad deal on the purchase of a mobile home. This is another example of “hard cases ‘are apt to introduce bad law.’ ”

In my approach to this dissent, I invoke the language used by Justice Oran M. Roberts in Duncan v. Magette, 25 Tex. 245, 253 (1860):

“The act of moulding justice into a system of rules detracts from its capacity of abstract adaptation in each particular case; and the rules of law, when applied to each case, are most usually but an approximation to justice. Still, mankind have generally thought it better to have their rights determine by such a system of rules, than by the sense of abstract justice, as determined by any one man, or set of men, whose duty it may have been to adjudge them.
* * * * * *
“To follow the dictates of justice, when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever consequences they may lead, is a duty. This applies as well to rules establishing reme-dios, as to those establishing rights.”

The weakness of the majority opinion is exemplified by the confession that it cannot follow the San tor decision from New Jersey; it cannot follow § 402A of the Restatement of Torts (Second) because the latter is “specifically predicated upon ‘physical harm to user or consumer.’ ” Then reference is made to implied warranty of reasonable fitness of a product as a matter of public policy, citing Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479 (1942).

In the article entitled “An Overview of Strict Tort Liability in Texas,” J. Sales, 11 Hous.L.Rev. 1043 (1974), the author says: “The court’s conclusion [in Decker] was premised squarely on the ‘broad principle of the public policy to protect human health and life.’ ” The inside quotation is to be found in the reported opinion, 164 S.W.2d 829. Decker lends no support to the deep pocket theory now embraced by the majority; thus, the majority cannot follow Decker either.

The landmark decision wherein Texas adopted the provisions of the Restatement of Torts (Second), § 402A, is McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). In so doing, the Court made it clear that the rule applied only to personal injuries, saying: “We are further of the opinion that as a logical proposition, the rule stated in Decker should be held applicable to defective products which cause physical harm to persons.” (emphasis supplied)

The Texas courts, despite the obvious trend toward expansion of strict liability as a ground of recovery, almost without exception have declined to expand the doctrine to permit recovery for consequential losses such as loss of the use of the product, loss of bargain, or loss of profits. These courts have held that where there is no injury to person or property — as in the case at bar— an action for recovery of economic loss is contractual in nature and thus requires privity of contract. 11 Hous.L.Rev., supra, at 1061.

The decisions of the Texas Courts are contrary to the holding of the majority. Judge Steger in Cloer v. General Motors Corporation, 395 F.Supp. 1070, 1071-1072 (E.D.Tex.1975), synthesized the holdings of the Texas courts in this manner:

“The Plaintiff’s suit is for economic loss only, and does not involve harm to the person or property of another. Therefore, this suit is to be governed by pure contract law. Pioneer Hi-Bred International, Inc. v. Talley, 493 S.W.2d 602 (Tex.Civ.App.—Amarillo, 1973); Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App.—Austin 1971).
“Under the contract law of Texas, to recover for a breach of express and implied warranties, it is essential that there be privity of contract between the Plaintiff and the Defendant. Foremost Mobile Homes Mfg. Corp. v. Steele, 506 S.W.2d 646, 649 (Tex.Civ.App.—Ft. Worth, 1974); Veretto v. Eli Lilly and Company, 369 F.Supp. 1254 (N.D.Tex.1974); Pioneer Hi-Bred International, Inc. v. Talley, supra at 608; Eli Lilly and Company v. Casey, 472 S.W.2d 598 (Tex.Civ.App.—Eastland, 1971, App. Dism’d); Melody Home Manufacturing Company v. Morrison, 455 S.W.2d 825 (Tex.Civ.App.—Houston (1st Dist.), 1970); Contra, Ford Motor Company v. Lemieux Lumber Company, 418 S.W.2d 909 (Tex.Civ.App.—Beaumont, 1967). The Court observes that the Lem-ieux Lumber case was a tort case and did not involve purely contract law. Therefore, the broad statements made by the Court therein concerning privity of contract are inapplicable to Mr. Cloer’s cause of action, which is based solely on contract law. See Foremost Mobile Homes Mfg. Corp. v. Steele, supra at 648-649.”

Chief Justice McCloud in Eli Lilly and Company v. Casey, 472 S.W.2d 598, 599 (Tex.Civ.App.—Eastland 1971, writ dism’d), quoted extensively from Thermal Supply of Texas, Inc. v. Asel, 468 S.W.2d 927 (Tex.Civ.App.—Austin 1971, no writ). I adopt this rationale as a part of this dissenting opinion. Justice Bateman in Emmons v. Durable Mobile Homes, Inc., 521 S.W.2d 153, 154 (Tex.Civ.App.—Dallas 1974, no writ), denied the purchaser a recovery from the manufacturer of the mobile home because of a lack of privity.

For further discussion, see: R. Weintraub, “Warranties Under the UCC,” 53 Tex.L.Rev. 60 (1974), and Salmon Rivers Sportsman Camps, Inc. v. Cessna Air. Co., 97 Idaho 348, 544 P.2d 306, 312 (1975).

If my position needs further strengthening, I need but quote the basic rationale of Chief Justice Traynor speaking for the California Supreme Court in the case of Seely v. White Motor Co., 63 Cal.2d 209, 45 Cal.Rptr. 17, 21, 403 P.2d 145, 149 (1965):

“The law of sales has been carefully articulated to govern the economic relations between suppliers and consumers of goods. The history of the doctrine of strict liability in tort indicates that it was designed, not to undermine the warranty provisions of the sales act or of the Uniform Commercial Code but, rather, to govern the distinct problem of physical injuries.”

The position which I have taken in this dissent is in strict harmony with all of the Texas decisions (with the possible exception of Lemieux, supra); and, it is also in accord with some of the leading scholars in the field. See, e. g., W. Prosser, “Fall of the Citadel (Strict Liability to the Consumer),” 50 Minn.L.Rev. 791, 821-822 (1966). It also “comports with the prevailing view in other jurisdictions.” 11 Hous.L.Rev., supra, at 1062.

Under the law as it existed in Texas before today’s decision, the appellant was entitled to a reversal of the trial court’s judgment and a rendition of judgment that the plaintiff take nothing. Here, as in Foremost Mobile Homes Mfg. Corp. v. Steele, 506 S.W.2d 646, 647 (Tex.Civ.App.—Fort Worth 1974, no writ): “The mobile home was never considered to be useless for the purpose for which it was purchased, but rather was considered to be less useful by reason of the defects.” Indeed, the plaintiffs in our case are still living in the mobile home (or at least they were at the time of the trial of the case). Thus, this case, like Steele, supra, is a “case of pure contract law involving mere economic loss” and plaintiffs may not prevail. Since I would reverse and render judgment for the appellant, I dissent from an affirmation.

      . For a more detailed discussion on the various theories see 24 Baylor L.Rev. 370, 380-382 (1972).

      . This concept was recognized by Santor. Santor v. A and M Karagheusian, Inc., supra (207 A.2d at 310).

      . Cf. S. Donnelly, “After the Fall of the Citadel,” 19 Syracuse Law Rev. 1, 31 (1967).

      . See United States v. Mitchell, 403 U.S. 190, 205, 91 S.Ct. 1763, 29 L.Ed.2d 406, 417, fn. 6 (1971), attributing the observation to Baron Rolfe in Winterbottom v. Wright, 10 M & W 109, 116, 152 Eng.Rep. 402, 406 (1842).

        Winterbottom v. Wright, supra, was the case which established the privity rule; and, at least one court has suggested that the rule was based on dictum. Anderson v. Linton, 178 F.2d 304, 307 (7th Cir. 1949).

      . For a detailed chronicle of the development of § 402A, see R. Ray, “Products Liability — A Symposium,” 19 Sw.L.J. 1 (1965).

      . I, too, disagree with the “broad statements” found in Ford Motor Company v. Lemieux Lumber Company, 418 S.W.2d 909. See my concurring opinion in John Deere Company of Kansas City v. Tenberg, 445 S.W.2d 40, 47 (Tex.Civ.App.—Beaumont 1969, no writ). I was not a member of this court when Lemieux was decided.

      . The writ history of Emmons is uncertain. Sheppard’s Texas Citations, Vol. 69, No. 2, p. 204 (May 1976), gives the notation “RNRE”, indicating that the writ was refused, no reversible error. The writ of error table appearing in the pink pages of the current Southwestern Reporter advance sheets indicates that a writ of error was not sought in the case.

      .This is the same Justice Traynor who was the author of the decision in Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963). In speaking of this opinion in Greenman, Dean Prosser has said: “Justice Traynor’s opinion is obviously destined to be, along with the Henningsen case, one of the twin landmarks among these decisions.” W. Prosser, “The Fall of the Citadel (Strict Liability to the Consumer),” 50 Minn.L. Rev. 791, 803 (1966).


author: CLAUDE WILLIAMS, Chief Justice.

text:
    In the Matter of Paul Ray HONSAKER, II.
    No. 18916.
    Court of Civil Appeals of Texas, Dallas.
    July 15, 1976.
    Rehearing Denied Aug. 12, 1976.

      Kelly D. McGehee, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas County, Maridell Templeton, Asst. Dist. Atty., Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Paul Ray Honsaker, II, appeals from an order of the juvenile court waiving its jurisdiction and ordering a transfer to a criminal district court pursuant to authority of Tex. Family Code Ann. § 54.02 (Vernon 1975). We affirm.

On September 9, 1975, the District Attorney of Dallas County filed a petition in the juvenile court alleging that Paul Ray Hon-saker, II, was a child who had committed robbery in violation of Tex.Penal Code Ann. § 29.03 (Vernon 1974) and that the juvenile court should waive its jurisdiction and transfer the case to a criminal district court for criminal proceedings. Subsequently, an amended petition was filed alleging that the child had committed the additional offense of escape under Tex.Penal Code Ann. § 38.07 (Vernon 1974). Honsaker, the child named in the petition, was served with summons pursuant to § 53.06. Honsaker’s natural mother appeared at the hearing held by the juvenile court and testified that she had previously signed papers authorizing his adoption. However, no documentation of actual adoption was produced. The court appointed Honsaker’s natural mother as the guardian ad litem to represent him at the hearing and also appointed an attorney ad litem who actively participated in his representation at the hearing and on this appeal. Upon being advised that the child’s natural father lived outside the state, the court recessed the hearing for a period of two weeks to give the district attorney an opportunity to “take care of their service on appellant’s natural father.” On December 8, 1975, the hearing was reconvened and after learning that the district attorney was unable to prove service on the out-of-state father, the court offered to grant a new hearing if Honsaker’s counsel objected to the lack of notice given to the father. At that time Honsaker’s counsel stated that he would proceed with the case as formulated.

Two police officers testified concerning the results of their investigation of the criminal acts charged against Honsaker. Officer J. R. Landers stated that he interviewed the person who filed a complaint of robbery and that when he showed the complainant photographs of several youths, the complainant selected the photograph of Honsaker as the perpetrator of the robbery. Officer B. J. Adamcik testified that during his investigation of the armed robbery, he showed photographs of several youths to the complainant who identified Honsaker as the one who committed the offense.

Honsaker’s probation officer testified about the results of her investigation and recommended that the juvenile court waive jurisdiction and transfer the case to a criminal district court. The court also received a written report of the psychological evaluation of Honsaker.

At the conclusion of this hearing the court entered an order as follows:

The court finds that said act or acts would be felonies under the penal laws of the State of Texas if committed by an adult. The court finds that the alleged offenses are against the person. The court finds that the alleged offense was committed in a premeditated and aggressive manner.
The court finds that there is evidence upon which the grand jury may be expected to return an indictment regardless of the youthful age of the said Paul Ray Honsaker, II.
The court finds that the child is of sufficient sophistication and maturity to be tried as an adult. The court specifically finds that the child is of sufficient sophistication and maturity to aid an attorney in his defense. The court finds that because of the record and previous history of the child and because of the extreme and severe nature of the alleged crime, the prospect of adequate protection for the public and the likelihood of reasonable rehabilitation of the child by the use of the procedures, services and facilities currently available to the juvenile court are in serious doubt.
The court after diagnostic study, social evaluation and full investigation, finds that it is contrary to the best interests of said child and the public to retain jurisdiction.
The court finds that because of the seriousness of the alleged offense and the background of the child, the welfare of the community requires criminal proceedings.

Honsaker perfected an appeal from this order and contends that it should be set aside and vacated because (1) the juvenile court lacked jurisdiction to conduct a hearing because his natural father or adoptive mother were not served with a summons in accordance with § 53.06; (2) the court’s order is not supported with competent evidence; and (3) the order does not comply with the terms of § 54.02(h).

As a basis for his first contention, Honsaker argues that the failure of the State to serve either the natural or adoptive parents with legal notice of the time, place and purpose of the hearing was fundamental error, and any evidence heard by the court until such service of notice should not be considered. He argues that parental rights come within the protection of the due process clause of the federal and state constitutions. Texas courts have long recognized that in proceedings where child custody is to be adjudicated and parental rights affected, parents must be given notice of the proceedings and must be allowed a full hearing to protect their rights. DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687, 691 (1944). In Pettit v. Engelking, 260 S.W.2d 613, 616 (Tex.Civ.App.—San Antonio 1953, writ ref’d n.r.e.), Justices Norvell and Pope, while reviewing proceedings in the trial court which declared an infant to be a neglected and dependent child and which resulted in termination of the parental rights, reaffirmed the principle of DeWitt v. Brooks, supra. In both of these cases, parental rights were affected by the adjudication of the court. We cannot agree with appellant that these cases are controlling in a discretionary transfer proceeding. The procedural safeguards incorporated into § 54.02 are required to protect the rights of the child as a matter of federal constitutional law enunciated by the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). This section specifies that notice shall be given as provided by § 53.06 which requires the juvenile court to issue summons to the child; child’s parents; child’s guardian or custodian; a child’s guardian ad litem; and any other person who appears to be a proper, necessary party. The commentary to § 51.11 explhins that a basic principle of the Code is that every child who appears before the juvenile court must have the assistance of some friendly, competent adult who can supply the child with support and guidance. Usually, one of the child’s parents or in some situations a substitute parent, will fill this need. However, if a parent or guardian is unavailable, the Code requires the appointment of a guardian ad litem. Texas Family Code Symposium, 5 Tex.Tech L.Rev. 529 (1974). Since Honsaker was served with citation, his natural mother was appointed his guardian ad li-tem, and he was effectively represented by competent counsel, we hold that his due process rights were adequately protected. The natural father and adoptive mother are not parties to the lawsuit, and no contention is advanced that they have parental rights which might be affected by the hearing.

Honsaker next contends that the court’s findings are not supported by competent evidence. We cannot agree. The main thrust of his argument is that all of the evidence presented at the hearing was hearsay. He contends that the testimonies of police officers were based upon statements of others made to them during the process of investigation and not based upon the officers’ own observations.

Hearsay has been defined as: “Testimony in court, or written evidence of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value on the credibility of the out of court asserter.” McCormick on Evidence § 246, at 284 (1972). In Irving Lumber Co. v. Alltex Mortgage Co., 446 S.W.2d 64, 71 (Tex.Civ.App.—Dallas 1969), affirmed, 468 S.W.2d 341 (Tex.1971), we stated that written evidence of an out-of-court statement is not “hearsay” unless it is offered as proof of a fact asserted. The purpose of the transfer proceeding authorized in § 54.02 is not to determine the guilt or innocence of the juvenile but to establish whether the juvenile’s and society’s best interests would be served by maintaining juvenile custody of the child or by transferring him to a criminal district court for adult proceedings. The burden is not upon the district attorney in such a case to establish the guilt of a child but only to present evidence which will allow the juvenile court to exercise its discretion in making the transfer. Obviously, there must not be a full trial on the merits during these proceedings because double jeopardy will attach. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Texas Family Code Symposium, 5 Tex.Tech L.Rev. 562 (1974).

The testimonies of the police officers were introduced to show that statements identifying the appellant had been made by the complaining witnesses and not to show the truth of the matter asserted that in fact the appellant was the perpetrator of the robbery. Since the testimony was offered only to demonstrate that the statements were made and did not go to the truth of the matter asserted, it does not fall within the definition of hearsay evidence.

The language in § 54.02(e) demonstrates the informality of the discretionary hearing and its separation from the rigid rules required during a trial on the merits:

At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses.

Pursuant to this Code, the written report of psychological evaluation and report of the probation officer were properly considered by the court. We find that there was sufficient admissible evidence and competent data upon which the juvenile court could make its determination. Since we must determine whether the juvenile court abused its discretion in transferring Hon-saker to criminal district court, we hold that no abuse of discretion has been shown and that the order is supported by competent evidence under the statute.

Finally, appellant argues that the court order fails to comply with the requirements of § 54.02(h) which provides:

If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings.

The requirement that a court state specifically in its order the reasons for the waiver is new to this jurisdiction. The commentary to the Code states:

The fact that the legislature changed ‘briefly state’ to ‘state specifically’ indicates that it contemplated more than merely an adherence to printed forms and, indeed, contemplated a true relevation of reasons for making this discretionary decision. Texas Family Code Symposium, 5 Tex.Tech L.Rev. 564-65 (1974).

Honsaker relied upon the case of In re J.R.C., 522 S.W.2d 579 (Tex.Civ.App.—Texarkana 1975, writ ref’d n.r.e.), to support his contention that the juvenile court’s order in this ease is insufficient to comply with the statutory requirement. In that case the Texarkana court wrote the words “reason for waiver” were intended by the legislature to mean that the juvenile court must set out the rationale of its order and show the rational basis or the motive of the court’s conclusion that constrains entry of the order waiving jurisdiction. The court went further to state that besides giving reasons for waiver the juvenile court has a mandatory duty to file findings covering matters actually considered, including all matters required by the Family Code and to certify such order and findings to the appropriate district court. We believe that this opinion is distinguishable and not applicable to the decree in the case now under consideration.

The order before us is very similar to the order considered in In re D.L.C., 533 S.W.2d 157 (Tex.Civ.App.—Austin 1976, no writ). In that case the court distinguished J.R.C. as being an order transferring the juvenile case to the district court which was patently inadequate. The court wrote that the J.R.C. order failed to state the seriousness of the offense, the background of the child which required criminal proceedings and that no adjudication hearing had been conducted. The only reason stated in the order for transfer was “that it is contrary to the best interest of the said child and to the public to retain jurisdiction.”

The Eastland court has held that an order which discloses that the matters listed in subsection (f) were considered by the court and which states specific reasons for the waiver of jurisdiction is sufficient. In re W.R.M., 534 S.W.2d 178, 182 (Tex.Civ.App.—Eastland 1976, no writ). The order before this court lists the matters contained in subsection (f) which were considered by the court in making its determination.

In Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court held that it is incumbent upon the juvenile court to accompany its waiver order with a statement of reasons or considerations therefor. The court did not interpret this requirement as meaning that a statement must be formal or that it should necessarily include conventional findings of fact. Instead, the court said it should be sufficient to demonstrate that the question has been reviewed carefully by the juvenile court and the reasons for the juvenile court’s decision must be set forth in the order with sufficient specificity to permit a meaningful review by the appellate court.

We hold that the juvenile court’s order as set forth above in this opinion falls within the requirements enunciated by the United States Supreme Court and that it complies with § 54.02(h) as interpreted by the Texas cases cited above. There is sufficient specificity in the order to allow an appellate court to review and understand the reason for the juvenile court’s determination. No separate findings of fact or conclusions of law are required by the Code and the court’s failure to include them is not error.

We overrule all of appellant’s points of error and affirm the judgment of the juvenile court.

Affirmed.

       Unless otherwise noted, all statutory references are to the Texas Family Code.


text:
    Carol BLACK, Appellant, v. Siegfred Jay WILEMON, Appellee.
    No. 18919.
    Court of Civil Appeals of Texas, Dallas.
    July 15, 1976.
    Robert W. McLaughlin, Dallas, for appellant.
    W. Mike Baggett, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Carol Black appeals from an order of the Domestic Relations Court Number Three of Dallas County, Texas, dismissing her action for want of jurisdiction. We reverse and remand.

On July 27, 1973, a decree of divorce was rendered by the Domestic Relations Court Number Two of Dallas County, Texas, which dissolved the marriage of Carol Lynn Wilemon (now Carol Black) and her husband Siegfred Jay Wilemon. The judgment expressly approved and incorporated into itself by reference a property settlement agreement executed by the parties and which contained provisions relating to division of community property and support and maintenance of the two minor children of the parties. After setting forth specifically the division of the properties between the parties, the agreement sets forth in detail the child support payments to be made by the father of the children each month. It was then agreed that on or before two years from the entry of the judgment that the father would cause to be created two separate trust funds for the use and benefit of the children for their college education. The father agreed that after the two-year period on the birthdate of each child he would pay into said trust fund the sum certain for each child so that by the time each child had attained the age of eighteen years, the child would have an accumulated sum of $5,000 for his use and benefit in attaining college education. The agreement then stated that all obligations were contractual and binding upon the father until his death.

On October 30, 1975, Carol Black filed an action entitled “Motion to Enforce Property Settlement Agreement” which was assigned to the Domestic Relations Court Number Three of Dallas County, Texas, in accordance with the administrative procedures followed by the District Clerk. In her petition Carol Black makes no complaint against her former husband Siegfred Jay Wilemon concerning periodic payment of child support. She alleges that in compliance with the agreement to set up certain trust funds for the education of the children Wilemon had opened two savings accounts but he had refused her request: (1) To place her name as a signatory on the savings account; (2) to enter into an agreement that if either signatory died, the surviving signatory would control the funds alone in accordance with the property settlement agreement; (3) to allow her to be the only person to have the right to withdraw funds from the savings account of the child who had graduated from high school; and (4) to agree to purchase term or life insurance in an amount equal to the balance of the savings account in the event the father should die prior to the graduation from high school of the minor children.

In a separate count of her petition Carol Black alleges that Wilemon had kept in his possession and had refused to deliver one freezer and two paintings as required by the property settlement agreement. She prays that the agreement be modified to incorporate the terms requested by her and that the former husband be required to deliver the items of personal property.

Wilemon answered the action with a plea that it should be dismissed because the court had no jurisdiction. Thereafter the court entered an order sustaining the plea and dismissing the suit.

The action filed by appellant Black is one for the enforcement, specific performance, and modification of a contractual agreement which was incorporated in a judicial decree dealing with divorce and child custody and support. A consent judgment has the same degree of finality and binding force as one rendered by a court at the conclusion of an adversary proceeding. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 239 (1961). An agreed judgment must be interpreted as if it were a contract between the parties and the interpretation is governed by the laws relating to contracts, rather than the laws relating to judgment. Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370, 375 (1962). Thus, the controlling question is whether a domestic relations court may entertain an action to enforce or modify a contractual agreement incorporated and approved in its order.

Both parties agree that the district court would have subject matter jurisdiction, but Wilemon argues that the domestic relations court does not have subject matter jurisdiction because the action is primarily for the modification of a contractual agreement embodied in the property settlement, and this contractual agreement is not included within the definition of child support payments as alleged by Black.

Although we agree with Wilemon that the contractual agreement creating the trust is not included within the classification of child support payments, we cannot agree with his contention that the district court has exclusive subject matter jurisdiction. The property settlement agreement contemplates that the trust funds created therein should only be used after the child has reached the age of eighteen years and enrolls in an institution of higher education. The child will have become an adult, and the trust corpus cannot be considered as child support payments since there is no legal obligation resting upon a parent to support his adult children except under certain circumstances which are not applicable in this case. Texas Employers Insurance Ass'n v. Birdwell, 39 S.W.2d 159, 160 (Tex.Civ.App.—Eastland 1931, writ ref’d); Byrne v. Byrne, 398 S.W.2d 432, 434 (Tex.Civ.App.—Eastland 1965, no writ); and Du Pre v. Du Pre, 271 S.W.2d 829, 831 (Tex.Civ.App.—Dallas 1954, no writ). Neither Tex. Rev.Civ.Stat.Ann. art. 4639a (Vernon Supp. 1975), which was in effect at the time of the divorce decree but was subsequently repealed, nor Tex. Family Code Ann. § 14.06 (Vernon 1975), which provides for child support, are controlling in this case. Therefore, this cannot be an action for modification or change of a child support order under Tex. Family Code Ann. § 14.08 (Vernon 1975).

The jurisdiction of Domestic Relations Court Number Three of Dallas County is defined in Tex.Rev.Civ.Stat.Ann. art. 2338-9b § 5 (Vernon 1971) which states:

Said Court of Domestic Relations No. 3 shall have jurisdiction concurrent with the District Courts and Courts of Domestic Relations situated in said county of all cases involving . divorce and marriage annulment cases, including the adjustment of property rights and custody and support of minor children involved therein . . . and all other cases involving justiciable controversies and differences between spouses, or between parents, or between them or one of them, or their minor children, or between any of these and third persons, corporations, trustees or other legal entities, which are now, or may hereafter be, within the jurisdiction of the District or County Courts . . . . All eases enumerated or included above may be instituted in or transferred to said court. [Emphasis supplied]

Thus by statutory authority the Domestic Relations Court Number Three of Dallas County, Texas, has concurrent jurisdiction with the district courts to entertain actions in contracts arising from divorce decrees and contractual property settlement agreements included therein. We hold that under the facts alleged in this case that the action was one which involved justiciable controversies included in the statute granting jurisdiction to the Domestic Relations Court Number Three, concurrent with the jurisdiction of a district court, and therefore, it was error for the Domestic Relations Court Number Three to decline to hear the action. We express no opinion, however, on the question of whether the facts alleged, if proved, would entitle appellant Black the ruling sought. That question must be decided by the trial court.

We hold that the Domestic Relations Court Number Three of Dallas County, Texas, had subject matter jurisdiction of this cause and should have retained jurisdiction thereof or, under the Dallas court rules as authorized by Tex.R.Civ.P. 817 should have exercised the option of transferring the case to the Domestic Relations Court Number Two from which the original divorce decree was issued.

The judgment is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.