text:
    CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. CORPUS CHRISTI AMERICAN FEDERATION OF TEACHERS et al., Appellees.
    No. 1266.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1978.
    Rehearing Denied April 27, 1978.
    Richard A. Hall, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellants.
    Sam A. Westergren, Jr., Westergren & Westergren, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit for a declaratory judgment for the purpose of declaring the rights of the parties under the provisions of Tex.Rev. Civ.Stat.Anh. art. 5154c, §§ 1 and 6 Corpus Christi American Federation of Teachers, AFL-CIO, Local 3456, hereinafter called “Union”, LeNell Couteau, individually and as a member of the Union, John Cole, individually and as President of the Union, and others, were plaintiffs in the trial court. The Corpus Christi Independent School District, hereinafter referred to as the “School District”, the Board of Trustees of the District, and Dana Williams, the Superintendent of the School District, were defendants in the court below. Trial was to the court, sitting without a jury. The judgment decreed:

“Accordingly, it is ORDERED, ADJUDGED, DECREED, DETERMINED and DECLARED that the Plaintiff John Cole is a representative that does not claim the right to strike within the meaning of Article 5154c, Sec. 6, V.A.C.S. It is further ORDERED, ADJUDGED, DECREED, DETERMINED and DECLARED that the Plaintiff LeNell Cou-teau is entitled to have the Plaintiff John Cole represent her in her grievance in the instant case. In this regard, the Court finds that the Plaintiff LeNell Couteau’s grievance involves a condition of work within the meaning of Article 5154c, Sec. 6.
It is further ORDERED, ADJUDGED and DECREED that Defendants are hereby ENJOINED from prohibiting the Plaintiff John Cole from representing the Plaintiff LeNell Couteau concerning her grievance in the instant case.”

The defendants have appealed. Findings of fact and conclusions of law were filed by the trial court.

Long before the controversy in this case arose, the Board of Trustees had adopted Board Policies 4148 and 4149. Under those policies, certain employee organizations were recognized. Eligible members were limited to “non-supervisory, fulltime certified employees” of the District. The right of “the aggrievant to appeal to the Board” was recognized and appeal procedures were formulated. A “grievance” was defined, thusly:

“A grievance shall be defined as a complaint that there has been an alleged violation, misinterpretation, or misapplication of established policies, rules and regulations of the district, or the procedures for the implementation of those policies.”

The appeals provided were: first, to the principal of the particular school; second, to the Superintendent of the District; and, last, to the Board of Trustees. We are here concerned with the appeal to the Board. Board Policy 4149, provided, in part:

“Within ten (10) days after receipt of the appeal notification, the Board shall convene with the party, the aggrievant, his legal counsel if desired, and two (2) members of the PR & R Committee.”

Plaintiff LeNell Couteau, hereinafter called Mrs. Couteau, alleged:

“That pleading further, the Plaintiff LeNell Couteau would show unto the Court that she has had, and still has, at the present time, a valid grievance to present to Defendants, pursuant to Board Policy promulgated by Defendants, and also in accordance with State Law, namely Article 5154c, Section 6, V.A.C.S. As a dues paying member of said Union, the Plaintiff Couteau has designated the Plaintiff John Cole, as her representative, to present her grievance to Defendants. However, the Defendants, CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT, and each individual member thereof, and the Defendant DANA WILLIAMS, arbitrarily and capriciously, and without reason, have refused and still continue to refuse to allow the Plaintiff Couteau to present her grievance before Defendants because the Plaintiff Couteau elected to present her grievance through her representative, the Plaintiff John Cole. . . . Since the Plaintiff John Cole is not a teacher and employee of the Corpus Christi Independent School District the Defendants arbitrarily and capriciously denied the Plaintiff John Cole the right to represent the Plaintiff Le-Nell Couteau concerning her grievance and consequently denied the Plaintiff Le-Nell Couteau the right to present her grievance to Defendants.”

The trial court found, and the evidence showed: 1) A “Superintendent’s Teacher Advisory Committee” of teachers from each school within the District had been organized and was functioning prior to the time that the alleged grievance arose; 2) On January 24, 1967, selection of teachers to serve on the Advisory Committee was undertaken at a meeting of the Moody High School faculty, of which faculty Mrs. Cou-teau was a member; 3) Mrs. Couteau opposed participation on the Advisory Committee by any member of the faculty at Moody High School, whether on an elected or voluntary basis; 4) Notwithstanding Mrs. Couteau’s opposition, two members of the faculty volunteered to serve on the Advisory Committee; 5) On January 31, 1977, Mrs. Couteau filed a written “grievance” against the Superintendent (Mr. Williams), advising that she would present the grievance to the Board of Trustees of the School District within ten days thereafter, “in accordance with Board Policy 4149”; she requested that Mr. Cole, President of the Union, be allowed to represent her at the Board hearing; 6) On February 7, 1977, Mrs. Couteau appeared before the Board of Trustees, accompanied by Mr. Cole, for the purpose of presenting her grievance; 7) Mr. Cole was neither a lawyer nor a non-supervisory, fulltime certified employee of the District; 8) The Board advised Mrs. Cou-teau, that Mr. Cole was not “a proper representative” to represent her at the hearing, and it refused to allow him to represent her; 9) Mrs. Couteau refused to proceed any further.

The trial court concluded:

“1. John Cole is a representative that does not claim the right to strike, within the meaning of that language as used in Article 5154(c) [5154c], Sec. 6, V.A.C.S.
2. The grievance which LeNell Cou-teau sought to present to the Board of Trustees of the Corpus Christi Independent School District, as evidenced by Defendants’ Exhibit 1, constituted a ‘condition of work’ within the meaning of Article 5154(c) [5154c], Sec. 6, V.A.C.S.
3. In the hearing of February 7, 1977, the Board of Trustees of the Corpus Christi Independent School District was required to permit John Cole to represent LeNell Couteau in accordance with Article 5154(c) [5154c], Sec. 6, Vernon’s Annotated Civil Statutes.”

The issue to be resolved is whether the “grievance” involves a “condition of work”. It is undisputed that it did not relate to “wages” or “hours of work”. It was admitted by all parties that the Union “does not claim the right to strike.”

Defendants’ points of error Nos. 1, 2, 3 and 6 read, as follows:

“POINT OF ERROR NO. 1
The trial court erred in decreeing that plaintiff LeNell Couteau was entitled to be represented by John Cole in the grievance proceeding before the Board of Trustees and in enjoining the defendants from prohibiting such representation since, under the provisions of Board Policy 4149 which Mrs. Couteau had invoked and pursuant to which the grievance was to be resolved, an aggrieved person could be represented before the Board of Trustees only by a full-time employee of the School District which Cole was not.
POINT OF ERROR NO. 2
The trial court erred in holding that the Board of Trustees was required by Article 5154(c) [5154c], § 6, to permit John Cole, a non-employee, to present a grievance to the Board in a proceeding being conducted under Board Policy 4149.
POINT OF ERROR NO. 3
The trial court erred in entering judgment interfering with the conduct of School District business since the decision of the Board of Trustees to limit participation in grievances heard pursuant to Policy 4149 to school employees was not an abuse of discretion.
******
POINT OF ERROR NO. 6
The trial court erred in holding that the grievance which plaintiff Couteau sought to present to the Board of Trustees constituted a ‘condition of work’ within the meaning of Article 5154(c), [5154c], § 6, Texas Revised Civil Statutes.”

Plaintiffs first argue that Mrs. Couteau, by being required to attend a faculty meeting without being given the opportunity to refuse representation by a school employee on the Advisory Committee, in effect, was “coercion” which constituted a condition of work. The argument cannot be sustained. The facts do not show coerced representation by the Committee. In the January 24, 1977 meeting, the faculty of Moody High School, by unanimous vote, declined to elect representatives to the Advisory Committee and rejected attempted appointment of the same. The following morning the principal called a meeting of the faculty to determine if any member was interested in volunteering for the Committee. While it does appear that the principal made a plea to the faculty to obtain volunteers, the record does not show that specific members were instructed to do so by him. Plaintiffs’ grievance insofar as it pertains to attendance at a meeting to determine if there were faculty members who would volunteer for a committee of this type is not a “condition of work”.

It is shown by the evidence that the Advisory Committee is designed to promote communication between school teachers and the school superintendent on educational policies. Expressly excluded are consideration of salaries, fringe benefits and other matters which circumvent the implementation of Board Policy. Plaintiffs argue that since “conditions of work” are not excluded that they could become an incidental matter of discussion by the Committee. Discussion of “conditions of work” is not the intended purpose of the Advisory Committee. American Federation of Musicians of the U. S. and Canada v. Carroll, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460 (1968). Assuming such could occur, plaintiffs have made no showing that the Advisory Committee has any policy-setting authority. It is established by the record that the Board of Trustees sets policy for the District, not the Advisory Committee for each of the schools in the District. Mr. Cole was not an employee of the District; he was not a lawyer and did not purport to represent Mrs. Cou-teau as her lawyer. Plaintiffs’ grievance does not constitute a “condition of work”. Mrs. Cole had the right to represent herself individually, or to be represented by legal counsel at the hearing in question. Neither the statute nor the Board Policy gave Mrs. Couteau the right to be represented by Mr. Cole, either individually or in his capacity as President of the Union at the hearing. Defendants’ points 1, 2, 3 and 6 are sustained.

The judgment of the trial court is REVERSED, the injunction is DISSOLVED, and judgment is here RENDERED that plaintiffs take nothing by their suit.

REVERSED and RENDERED.

      . “Section 1. It is declared to be against the public policy of the State of Texas for any official or group of officials of the State, or of a County, City, Municipality or other political subdivision of the State, to enter into a collective bargaining contract with a labor organization respecting the wages, hours, or conditions of employment of public employees, and any such contracts entered into after the effective date of this Act shall be null and void.
      * * * * * *
      “Sec. 6. The provisions of this Act shall not impair the existing right of public employees to present grievances concerning their wages, hours of work, or conditions of work individually or through a representative that does not claim the right to strike.”


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Ariel WORDEN and E. M. Hudspeth, Independent Co-Executors of the Estate of R. C. Mingee, Deceased, Appellants, v. Norman H. THORNBURG and First Savings Association of Corpus Christi, Appellees.
    No. 1225.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1978.
    Rehearing Denied April 27, 1978.

      Allan L. Potter, Potter & Potter, Corpus Christi, for appellants.
    Charles R. Cunningham, Lee Mahoney, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an action for declaratory judgment to determine ownership of a certificate of deposit bearing the notation “R. C. Mingee or Norman H. Thornburg” as depositor and representing $3,000.00 on deposit with the First Savings Association of Corpus Christi, Texas. In connection with the certificate, Mingee and Thornburg had signed as joint tenants an agreement with the Association providing for right of sur-vivorship and for withdrawal on only one signature. Mingee later died. Thornburg thereafter made demand of the Association for the funds and was refused. This suit resulted.

After Thornburg filed suit against the Association, the Association impleaded Ariel Worden and E. M. Hudspeth as Independent Co-Executors of the Estate of Mingee. Whereupon the Executors filed a cross-action for the funds against Thornburg and the Association. Trial was to the court without a jury on stipulated evidence. The trial court rendered judgment that Thorn-burg, as surviving joint tenant of the account, was entitled to the funds on deposit. On the request of the Executors the trial court filed findings of fact and conclusions of law. The Executors appeal. We affirm.

On February 1, 1974, Mingee, who then lived in Corpus Christi, appeared alone at the Association and opened by deposit a savings account in his name and that of Thornburg, his nephew. Mingee then signed the signature card contract which provided for joint tenants with right of survivorship and received the certificate of deposit representing the account. That certificate is the one in controversy. Thereafter Mingee secured Thornburg’s signature on the card and returned it to the Association. Sometime after the account was opened, Thornburg, who lived in Mississippi, acquired possession of the certificate.

On September 9, 1975, Mingee went to the Association and demanded withdrawal of the funds from the account. The Association denied his request because Mingee did not have in his possession, nor did he tender, the certificate. The bylaws of the Association required surrender of the certificate to effect a withdrawal from the account. Whereupon Mingee personally wrote to Thornburg demanding return of the certificate. Thornburg failed to comply with the request.

In late September of 1975, E. M. Hud-speth, a friend of Mingee and one of the Executors herein, called Thornburg and requested return of the certificate. On November 3, 1975, Mingee’s attorney wrote a letter to Thornburg on Mingee’s behalf requesting return of the certificate. Thorn-burg ignored all the requests.

Consequently, on November 5, 1975, Min-gee requested the Association not to allow any withdrawals on the account. As a re-suit the bank placed a “freeze order” on the account. On November 30, 1975, Mingee died. Then under Mingee’s will Hudspeth and Worden qualified as independent co-executors of Mingee’s estate. They are the appellants herein.

Appellants have brought forward 22 points of error. They have, however, summarized the points into categories for purposes of argument. We will follow appellants’ format, generally, in considering their contentions.

In their first category appellants contend that the Association wrongfully refused to pay the funds to Mingee upon his demand during his lifetime and that, therefore, the trial court in its judgment should have awarded the funds to Mingee’s Executors.

This case is in the nature of an interpleader action and the parties seeking the funds each has the burden of proving a prior right to the funds deposited with the court. Celanese Coating Company, Devoe Paint Division v. Soliz, 541 S.W.2d 243 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.). In order to meet this burden, Executors had to prove initially that the Association was obligated to turn over the funds to Mingee when he requested them in September of 1975, and that the refusal was a breach of this obligation.

Executors contend that the Association’s obligation arises both as a matter of law and as a matter of contract. They argue, first, that the obligation arises as a matter of law from the fact that the certificate was a non-negotiable instrument and thereby it did not require presentment for Mingee to be entitled to the funds upon his request unaccompanied by the certificate. Executors cite First State Bank v. Hidalgo Land Co., 268 S.W. 144 (Tex.Comm’n App.1925, opinion adopted) which discusses a standard for determining whether a certificate of deposit is negotiable or non-negotiable. While we would agree that the instant certificate was a non-negotiable instrument, Executors have cited us to no authority, nor have we found any, which obligates a savings institution to pay out funds on all deposits evidenced by a non-negotiable instrument where the depositor orally or in writing requests the funds without tendering the instrument itself.

Second, Executors argue that the obligation arises as a matter of contract. A non-negotiable certificate of deposit represents a form of promissory note. Southview Corporation v. Kleberg First National Bank, 512 S.W.2d 817 (Tex.Civ.App.—Corpus Christi 1974, no writ). As such, it represents a contractual relationship between the savings institution and the depositor. Business Aircraft v. Electronic Communications, Inc., 391 S.W.2d 70 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.).

In this regard, Executors contend that the bank was contractually obligated to turn over the funds because “nothing on the agreement or certificate indicates conditions other than signature for withdrawal.” This argument is insufficient to demonstrate an obligation, though, for two reasons. First, the signature card contract provision to which the Executors refer provides: “one signature only required for withdrawal”. This provision’s clear design provides that of the two signatories on the signature card contract, only one will be required to sign when making a withdrawal. Second, the Executors had the burden to show the contractual provision which created the obligation the nonperformance of which would be a breach. Hull v. Freedman, 383 S.W.2d 236 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.); Blackstock v. Gribble, 312 S.W.2d 289 (Tex.Civ.App.—Eastland 1958, writ ref’d n. r. e.); Mergenthaler Linotype Co. v. Herrmann, 217 S.W.2d 122, 123 (Tex.Civ.App.—Fort Worth 1949, writ ref’d n. r. e.).

After reviewing the signature card contract with the Association together with the certificate, we find no provision in either which required payment of the funds on deposit solely upon written or oral request. Furthermore, the signature card contract provides that “the charter and bylaws of the Association as they now are or as they may hereafter be amended shall govern this account.” Executors produced no evidence of the provisions of the charter or bylaws as they existed at the time the account was opened. Consequently, we have no way of ascertaining the total contractual rights and obligations of the parties herein. The only evidence in the record pertaining to the charter or bylaws showed that the bylaws, as amended on January 16, 1975, one year after Mingee purchased the certificate, provided “any member shall be able to withdraw his savings deposit or savings account in whole or in part . by presenting his deposit book or certificate of deposit.” Executors have clearly failed to meet their burden of proving a contractual obligation. Appellants’ contentions in their first category are overruled.

In the Executors’ second category, they argue that Mingee’s demanding the funds from the Association, “freezing” the savings account and his demanding the certificate from Thornburg destroyed the parties’ unity of title and operated to terminate any joint tenancy with right of surviv-orship, leaving the parties as tenants in common with no right of survivorship. We disagree.

In considering the contention, we will show that regardless of who owned the funds used to purchase the certificate, a joint tenancy resulted; that Mingee’s acts did not sever the joint tenancy; and that Mingee might have taken alternative actions to avoid the result of this case.

It is clear that a joint tenancy existed initially between Mingee and Thornburg regardless of which party owned the funds used to purchase the certificate. We will first assume that either Mingee or Thorn-burg separately owned all of the funds used to purchase the certificate. Under this assumption, the party contributing the money would be the “donor” and the noncontributing party the “donee-beneficiary”. By taking out the certificate as a joint account with right of survivorship, the donor is deemed to have entered into a third party beneficiary contract with the Association. Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926 (1962); Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823 (1945). This third party beneficiary contract created a joint tenancy with right of survivorship between the donor and third party beneficiary. Calvert v. Wallrath, 457 S.W.2d 376 (Tex.Sup.1970). In Calvert the court faced a situation involving one joint checking account and one joint savings account paid for solely by Mr. Wallrath. Mr. Wallrath then executed a joint tenancy with right of survivorship contract, similar to the one in the instant case, with his sister, Miss Wallrath. Miss Wallrath later died and the comptroller assessed inheritance taxes on Mr. Wallrath for one-half the amount on deposit in these accounts on the date of Miss Wallrath’s death. Mr. Wallrath paid the tax and then sued the comptroller for return of the funds. The Supreme Court held that no inheritance tax should have been assessed against Mr. Wall-rath because no interest passed to him upon his sister’s death in that a valid joint tenancy had been created by Mr. and Miss Wall-rath; “each took full title to the property by the instrument creating the joint tenancy”-

Alternatively, assuming that both Mingee and Thornburg contributed their separate funds towards the purchase of the certificate, we would again be confronted with a joint tenancy with right of survivorship between Mingee and Thornburg. Estate of Reynolds v. Reynolds, 443 S.W.2d 601 (Tex.Civ.App.—Dallas 1969, writ ref’d n. r. e.).

Mingee’s acts did not serve to sever this joint tenancy. Executors cite several cases in asserting the contrary. They cite Yates v. Blake, 491 S.W.2d 751 (Tex.Civ.App.—Corpus Christi 1973, no writ). Yates is inapplicable here since it dealt with parties’ rights to a certificate of deposit under a gift theory rather than joint tenancy with right of survivorship.

Executors also cite Karlen v. Karlen, 235 N.W.2d 269 (S.D.1975) for the proposition that a donor joint tenant terminates a joint tenancy bank account upon demand for release of the moneys from the bank. Karlen is distinguishable, however, in that the case involved the question of whether a joint depositor’s clerical error, i. e., failure to sign a withdrawal slip, invalidated his attempt to close out 'a joint account and open two new joint accounts. We are not here dealing with clerical errors. Moreover, in Karlen the joint tenant seeking withdrawal apparently possessed a right to demand withdrawal at the time it was attempted. In the present ease, it is not clear, as discussed supra, that Mingee had the right to withdraw the funds upon his demand without tendering the certificate. Next, Executors cite Manufacturers National Bank v. Schirmer, 303 Mich. 598, 6 N.W.2d 908 (1942) in which a mother opened a savings account in her name and that of her daughter payable to either or the survivor upon the death of one. Later the mother sent a communication to the bank stating that any future withdrawals without her consent would leave the bank open to suit. The mother subsequently died and the daughter sued to recover the funds claiming her right of survivorship under the joint tenancy account. The Michigan court awarded the funds to the mother’s estate first noting that a Michigan statute, similar to Tex.Rev.Civ.Stat.Ann. art. 852a, § 6.08 (Supp.1978), provided that the savings institution was free to allow withdrawals by either party to a joint account prior to receiving notice to disallow further withdrawals, and that the effect of such notice, if given, was to limit payment from the account only to the party or parties whose money went into the joint account. The court also noted that Michigan does not recognize any title in a donee-beneficiary of a joint account, only a presumption of ownership, and that the effect of the notice therein destroyed the presumption of ownership in the joint tenant daughter. Conversely, the “freeze order” in the present case merely prevented both parties to the account from withdrawing funds. Article 852a § 6.08, supra, with its provision for “freeze orders” is designed to act as a protective statute for institutions that pay funds out on survivorship accounts. Reed v. Reed, 283 S.W.2d 311 (Tex.Civ.App.—Dallas 1955, no writ). The provision for “freeze orders” was intended to enable a bank to withhold funds from all to a joint account without incurring liability. It was not intended to affect ownership of funds. Reed v. Reed, supra; Pruett v. First Nat. Bank of Temple, 175 S.W.2d 658 (Tex.Civ.App.—Austin 1943, no writ). Accordingly, we do not find Schirmer to be applicable to the instant case.

Finally, on their termination of unity of title contention, Executors cite Hoover v. El Paso National Bank, 498 S.W.2d 276 (Tex.Civ.App.—El Paso 1973, writ ref’d n. r. e.). Hoover is distinguishable from the instant case in that there the joint tenant’s act which severed the joint tenancy was a contract to convey the grantor’s property interest in a joint tenancy. The court held that the contract destroyed the parties’ unities of title and time and that a tenancy in common resulted. See 15 Tex.Jur.2d Coten-ancy § 4 (1960) (stating that to create the estate of joint tenancy there must have been the four unities of time, title, interest, and possession). Mingee’s “freeze order” and request, on the other hand, did not transfer any interest nor was a contract entered for the purpose of transferring his interest. As heretofore stated, the “freeze order” merely prevented both parties to the account from withdrawing funds; their rights to possession of the funds remained equal and the unities of title were not affected.

Had Mingee entered into a contract to convey, or had conveyed, his interest in the account prior to his death, the joint tenancy would have been severed, and a tenancy in common substituted. See Hoover supra. Assuming a tenancy in common had resulted, the “freeze order” would have continued with force and effect after Min-gee’s death, and his Executors would have presumably been able to bring an action to recover at least one-half of the account. As an alternative remedy, Mingee might have sued for and obtained a decree of partition prior to his death, which would have terminated the joint tenancy. A pending partition action interrupted by the death of one of the parties would leave nothing to partition, however. 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 20 n. 1 (1965). The appellants’ contentions in their second category are overruled.

By their third category of arguments and contentions, Executors urge that the account in question was a convenience account. Thus Thornburg acquired no interest in the account itself.

A convenience account is one in which the depositor has not surrendered his exclusive right to the funds. Dulak v. Dulak, 513 S.W.2d 205 (Tex.Sup.1974). It is one in which the depositor “for the sole purpose of his own convenience, makes a joint deposit so that the other person may, for the convenience and sole benefit of the depositor, draw funds and apply them to the use of the depositor”. In re Stavers’ Estate, 218 Wis. 114, 260 N.W. 655 (1935) (cited with approval in Krueger v. Williams, 359 S.W.2d 48 (Tex.Sup.1962)).

Executors argue that Dulak, which held that a father-son joint bank account was merely a convenience account, was decided on facts similar to those in the present case. We disagree. In Dulak an 85 year old, deaf, and nearly blind father, who had just moved in to live with his son for the first time, opened a father-son joint checking account. That same day the father entered the hospital for a cataract operation. The jury found that the father signed the joint account signature card for the limited purpose of providing a convenient method for the payment of hospital expenses while incapacitated. It was also inferred that the son regarded the account as his father’s.

In the present case, we find no evidence that the account’s creation was intended solely for the purpose of convenience for Mingee. There is no evidence that Mingee was ill at the time this account was opened, and that he needed someone to help him manage his financial affairs. Moreover, Mingee lived in Corpus Christi, Texas, and Thornburg lived in Natchez, Mississippi, when the savings account was opened in their joint names. Clearly, geographical separation precluded most if not all possible benefit Mingee might have derived from Thornburg’s name being on the certificate. Compare Estate of Reynolds v. Reynolds, supra. Finally, it should be noted that the certificate was taken out shortly after Mingee returned to Corpus Christi, after having lived with Thornburg in Natchez, Mississippi. This fact coupled with Thornburg’s later possession of the certificate without any evidence of fraud, mistake, or undue influence indicates that Mingee intended to pass at least some interest in the certificate to Thornburg, thereby surrendering exclusive right to the funds. Executors’ third category of assertions is overruled.

In their fourth category of reasons for reversal, Executors say that the trial court erred in making certain findings of fact because there was either no evidence or insufficient factual evidence to support these findings. The first challenged finding of fact (no. 9) states that prior to his death, Mingee voluntarily delivered the certificate to Thornburg. We agree that there is no evidence of the manner by which Thornburg acquired the certificate. This fact finding, however, is not essential to the disposition of this case, and therefore does not constitute reversible error. Rule 434 T.R.C.P. The next questioned finding of fact (no. 10) states that the certificate remained in the possession of and under the exclusive control of Thornburg and/or his attorney from the time it was delivered to him until after the death of Mingee. In his affidavit, E. M. Hudspeth stated that he had personal knowledge that Norman H. Thornburg had six certificates of deposit during Mingee’s lifetime bearing the name R. C. Mingee and that Thornburg returned five of them, but kept the certificate in question. Charles R. Cunningham stated in his affidavit that he has the original certificate in his personal possession. There is no evidence in the record of possession by any other persons other than Thornburg and Cunningham.

Finally, Executors challenge the finding (no. 1) that Mingee and Thornburg opened a certificate of deposit with First Savings. The signature card contract itself is sufficient evidence to show that both Mingee and Thornburg opened the account, the basis of the certificate of deposit. Appellants’ last category of contentions is overruled.

The judgment of the trial court is AFFIRMED.


author: COLEMAN, Chief Justice.

text:
    Larry YANCEY et ux., Appellants, v. JACOB STERN & SONS, INC., Appellees.
    No. 17104.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 6, 1978.
    Mounger, Whittington & Pfeiffer, Stan L. Pfeiffer, Houston, for appellants.
    Baker & Botts, William C. Slusser, Randall A. Hopkins, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from an order entered by the district court on a petition for a bill of review finding a default judgment null and void and reinstating the case on the docket “as if the default judgment had not been entered”. The judgment is an interlocutory order and the appeal will be dismissed.

Larry Yancey and wife, Nancy Yancey, entered suit against Jacob Stern & Sons, Inc., for damages growing out of a automobile collision. The 164th Judicial District Court of Harris County, Texas, rendered a judgment by default in favor of the plaintiffs on September 8,1975. On October 20, 1975, Jacob Stern & Sons, Inc., filed a petition in the nature of a bill of review in the 157th District Court. The case was transferred to the 164th District Court, and on October 18, 1977, the summary judgment appealed from was entered.

The trial court set aside the judgment for the reason that the summary judgment evidence established that the court lacked personal jurisdiction over the corporation. The order is interlocutory on its face. Where an order appealed from is not an appealable final judgment, the reviewing court has no jurisdiction other than to dismiss the appeal. Dimerling v. Grodhaus, 152 Tex. 548, 261 S.W.2d 561 (1953).

The appellant contends that the allegations of the writ of error are insufficient to invoke the equity jurisdiction of the trial court and that this court should render judgment dismissing the cause. If in fact the trial court lacked jurisdiction over the case, the proper procedure for this court would be to render judgment dismissing the cause. Martin v. Commercial Standard Fire and Marine Insurance Company, 505 S.W.2d 799 (Tex.1974).

The point appellant seeks to make is illustrated by the case of Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723 (1930), where the court said:

“The respondent Lyles, joined by respondent Feagin, prayed that ‘said judgment be set aside and his motion for new trial or bill of review granted,’ etc. The district judge denominates their pleading a bill of review, but acted upon it and treated it as a motion for a new trial. In other words, instead of proceeding to a hearing and determination of the merits of the whole controversy and the rendition of a final judgment in the case, as is the function and purpose of a bill of review, he simply granted a new trial. He entered his order that the judgment theretofore rendered in the case be vacated and held for naught, and the case was reinstated on the docket for trial in the future as in other cases of new trial. For the purpose of granting a new trial his order was void, as the judgment had become final under the law.”

The court in Wear v. McCallum further held that the pleading was insufficient as a bill of review. The court discussed the necessity for pleading and proving a defense to the cause of action on which the default judgment rested and the necessity for showing that the petitioner was not negligent in failing to seasonably answer to the merits. The court then said:

“This pleading of respondent Lyles . goes no further than to seek to reopen and to relitigate the issues tendered by plaintiff’s petition in the case, and as a bill of review is wholly insufficient.”

The court then granted mandamus to compel the district judge to set aside the order granting the new trial and reinstating the case.

In McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), Texaco, Inc., was cited by serving a copy of the citation on Warren A. Roach. Texaco failed to appear and a default judgment was rendered. After the judgment had become final, Texaco filed a motion to vacate the judgment on the ground that it was void because citation had not been served on a person designated by law as its agent for service. The motion was granted and an order entered vacating the judgment. The motion did not contain the allegations required to qualify it as a bill of review. The Supreme Court granted a mandamus requiring the district court to set aside the order, and in its opinion stated:

“If the judgment is one which the court had jurisdictional power to render but it is invalid, he may obtain relief by bill of review as provided in Rule 329-b whether the invalidity is or is not disclosed by the papers on file in the case. Only if a court had no jurisdictional power to render the judgment should a negligent defendant or one with no meritorious defense to the suit be able to relieve himself of the burdens and consequences of a default judgment.”

The opinion in McEwen was clarified by the Supreme Court in Deen v. Kirk, 508 S.W.2d 70 (Tex.1974), where the court said that the words “jurisdictional power” as used in McEwen meant jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one belongs. The court specifically stated that in McEwen that it was not speaking of jurisdiction over the parties. It then held that the district court had jurisdictional power to determine the validity and effectiveness of a waiver of citation executed prior to the institution of the divorce suit in which it was filed. The court held that the order setting aside the judgment was void.

In Whitney v. L & L Realty Corporation, 500 S.W.2d 94 (Tex.1973), the Supreme Court said:

“If we held that proof of forwarding was not required to sustain a judgment on writ of error review, the defendant would then be relegated to his remedy by bill of review. This remedy would be less satisfactory than a trial at which he would have an opportunity to present his defenses because, in a bill of review proceeding, our cases say that the defendant would face the initial burden of proving at least that he had a good defense and that he was free from fault in failing to appear. (Citations omitted).”

Again in Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974), the court held that in a bill of review proceedings the petitioner had the burden of showing that his failure to file a motion for new trial or appeal was not due to any fault or negligence on his part or that of his counsel and that the petitioner must show that he has a good defense to the cause of action asserted against him.

In Harris v. Logue, 554 S.W.2d 168 (Tex.1977), the Supreme Court said:

“We disagree with and disapprove of the writing of the Court of Civil Appeals saying that the prior judgment was void ‘for want of due process or jurisdiction over necessary parties’ and that Logue et al. were entitled to have it set aside without showing their meritorious defense. This writing is contrary to opinions of the Court, including Deen v. Kirk, 508 S.W.2d 70 (Tex.1974) and McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961).”

Thus, the Supreme Court has reaffirmed its holding in McEwen v. Harrison, a case involving the question of lack of personal jurisdiction over a defaulting defendant.

In its first amended petition for bill of review, petitioner alleged that the citation in the damage suit was served on C. T. Corporation as its registered agent for service. It alleged that it does no business in the State of Texas and has no registered agent for service of process within this State. Petitioner alleged facts which would constitute a defense on the merits of the action. Facts were also alleged which would raise an issue as to its negligence in failing to file an answer. The pleading was sufficient to allow the introduction of testimony to support a finding that after petitioner discovered the fact that judgment had been rendered there was no adequate remedy at law available. The prayer was that the judgment be set aside and that petitioner have its costs of court and “such other and further relief general and herein special, legal and equitable as the court may deem proper.” The petition sufficiently alleged a cause of action invoking the equitable jurisdiction of the district court to authorize the court to set aside the default judgment and render judgment on the merits.

Since the petition was sufficient as a bill of review, the trial court’s judgment cannot be considered a void order entered after the court had lost jurisdiction of the damage suit. The judgment is interlocutory, and this court lacks jurisdiction of the appeal.

If the judgment of the trial court should be considered a void order granting a new trial, an appeal is not the proper procedural remedy. The remedy is an application for mandamus filed in the Supreme Court. Accordingly, costs of appeal are assessed against the appellants.


text:
    JOC OIL AROMATICS, INC., Appellant, v. COMMERCIAL FUEL OIL COMPANY, INC., Appellee.
    No. 17085.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 6, 1978.

      Fulbright & Jaworski, Russell H. McMains, Houston, for appellant.
    Simpson & Burwell, Charles M. Jordan, Texas City, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from an order denying a plea of privilege. It will be reversed.

Commercial alleged three theories for recovery: (1) breach of contract, (2) fraud and (3) deceptive trade practices. Commercial alleged a contract to supply Joe Oil with styrene tar. There was testimony that Joe Oil would delay for as much as a week in unloading Commercial’s trailer; that Joe Oil went to the people supplying material to Commercial and contracted with them directly; and that Joe Oil hired Commercial’s truck drivers. There is no testimony as to when this course of conduct began. However, Joe Oil alleged that the contract was entered into about July 10, 1975, and the course of conduct of which complaint is made began in the Spring of 1976.

Commercial is a resident of Galveston County, Texas. Joe Oil has its principal place of business in Harris County, Texas, but it does business in Galveston County, Texas. A witness for Commercial testified that the original contract was signed at the office of Joe Oil.

Commercial asserts that venue was properly retained in Galveston County under Subdivision 7 of Article 1995, providing that in all cases of fraud suit may be brought in the county where the fraud was committed. In order to overcome a plea of privilege by relying on the fraud exception, a party must plead and prove the constituent elements of fraud. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App.—Dallas 1969, no writ). There is neither pleading nor proof that Joe Oil made representations to Commercial that were false at the time the representations were made.

Commercial alleged that Joe Oil falsely and fraudulently represented to plaintiff that the contract was to be carried out “to its full extent and spirit” that the defendant would carry on its operations in good faith; and that defendant would purchase all of its styrene tar from the plaintiff. Commercial alleged that these representations were false and that Joe Oil breached its contract with Commercial and engaged in a course of conduct based upon a deliberate plan to avoid its contractual obligations and to sabotage plaintiff’s business and business relationships with its suppliers. Commercial alleged reliance upon the representations and the resulting damage.

No testimony was offered concerning the negotiations leading to the contract. While there is testimony that a contract was signed, the document was not offered into evidence. There is nothing in the evidence to show that Joe Oil had the duty of unloading Commercial’s trucks. There is no evidence to show the date on which the contract was to expire. A mere failure to perform an agreement does not constitute actual fraud establishing venue under Subdivision 7. Underwood v. Williams, 488 S.W.2d 515 (Tex.Civ.App.—Fort Worth 1972, no writ). The evidence fails to establish that fraud was committed by Joe Oil in Galveston County. Venue of this action cannot be held in Galveston County under Subdivision 7. Underwood v. Williams, supra.

The trial court also based its decision to overrule the plea of privilege on Section 23 of Article 1995, Vernon’s Annotated Texas Statute. This section allows suits against a private corporation to be brought in the county in which the corporation’s principal office is situated, or in the county in which the cause of action or part thereof arose, or in the county in which plaintiff resided at the time the cause of action or part thereof arose, provided the corporation has an agency or representative in such county.

The evidence establishes that the principal office of Joe Oil Aromatics, Inc. was located in Harris County, Texas. Commercial failed to prove the terms of the alleged contract. While there is evidence that Joe Oil conducted business operations in Galveston County, there is no testimony naming a person who might be a representative of the corporation residing in Galveston County. There is no testimony that the corporation or any of its employees maintained an office in Galveston County. There is no testimony that any person or corporation resident in Galveston County regularly conducted business in that county for Joe Oil or on behalf of Joe Oil. Venue cannot be maintained in Galveston County under Section 23 of Article 1995. Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194 (1952); Mid-Continent Life Insurance Company v. Huston, 481 S.W.2d 943 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n. r. e.).

Commercial asserted in its petition in general language a cause of action against Joe Oil under Section 17.50, Tex.Bus. & Comm.Code. Section 17.56 of the Tex.Bus. & Comm.Code provides that an action brought under Section 17.50 may be commenced in the county in which the person against whom the suit is brought is doing business. The evidence establishes that Joe Oil Aromatics, Inc., is doing business in Galveston County. Section 17.50 of the Tex.Bus. & Comm.Code provides that a “consumer” may maintain an action if he has been adversely affected by any unconscionable action or course of action by any person. Section 17.45 of the Code defines “consumer” to mean an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services. “Services” is defined to mean work, labor, or service purchased or leased for use, for other than commercial or business use, including services furnished in connection with the sale or repair of goods.

The general rule requiring a plaintiff to plead and prove a cause of action to support venue is applicable to the venue provisions of the Deceptive Trade Practices Act. Hudson and Hudson Relators v. Savage, 545 S.W.2d 863 (Tex.Civ.App.—Tyler 1976, no writ); Doyle v. Grady, 543 S.W.2d 893 (Tex.Civ.App.—Texarkana 1976, no writ). The burden rests on Commercial to show the applicability of the Act and, thus, that it is a consumer who has been adversely affected by one of the acts listed in Section 17.50. Russell v. Hartford Casualty Insurance Company, 548 S.W.2d 737 (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.).

Commercial has failed to show that it has purchased goods from Joe Oil or that it has purchased services “for other than commercial or business use”. Section 17.50 of the Code creates a cause of action for consumers as that term is defined in the Code. Commercial has failed to prove a cause of action under the Code and the venue provision of the Code is, therefore, inapplicable. Since Commercial has failed to show that it has a cause of action, the venue of which is expressly prescribed by statute, the exception to exclusive venue set out in Section 30 of Article 1995, Vernon’s Annotated Civil Statutes, is also inapplicable. Hudson and Hudson Relators v. Savage, supra.

Commercial Fuel Oil Company, Inc., has failed to prove a cause of action against Joe Oil Aromatics, Inc. Therefore, it has failed to establish a basis for venue in Galveston County, Texas.

Accordingly, the judgment of the trial court is reversed and judgment is here rendered sustaining the plea of privilege of Joe Oil Aromatics, Inc. The cause is ordered transferred to a district court in Harris County, Texas.


author: AKIN, Justice.

text:
    Mollie Hannah GOIDL, Appellant, v. NORTH AMERICAN MORTGAGE INVESTORS, Appellee.
    No. 19401.
    Court of Civil Appeals of Texas, Dallas.
    April 10, 1978.

      Roger D. Bush, Dallas, for appellant.
    F. Ward Steinbach, Dallas, for appellee.
   AKIN, Justice.

This appeal concerns priority between a vendor’s lien retained by Mollie Goidl in a deed and a deed of trust lien in favor of North American Mortgage Investors upon which North American has foreclosed. Appellant Goidl sold a parcel of property to L.R.R.S. Corporation and received a note for the purchase price. In the deed, she retained a vendor’s lien and the purchaser executed a deed of trust to secure payment of the note. Her deed of trust recited that it was second and inferior to a deed of trust lien to North American on the same property. This deed of trust was duly recorded by the title company handling the closing. The record is silent with respect to whether the deed of trust was accepted by Goidl. Additionally, certain third persons executed an agreement guaranteeing payment of the note to Goidl and this guaranty referred to her note as a second-lien note. The guaranty also recited that the note was secured by a vendor’s lien and a deed of trust on the property second to the lien of North American. The summary judgment evidence shows that this guaranty was transmitted to Goidl’s attorney. Both parties moved for summary judgment each contending that the facts were undisputed and that each was entitled to summary judgment based upon a construction of the various instruments. The trial court granted summary judgment for North American and denied Goidl summary judgment.

In the trial court, and on this appeal, Goidl insists that although her deed of trust lien may be subordinate to the lien of North American, nevertheless, her vendor’s lien retained in the deed was not. Thus, she argues that the trial court erred in not granting her summary judgment. On the other hand, North American contends that the vendor’s lien was merged into Goidl’s deed of trust lien since all parties to the transaction intended for North American’s lien to have priority. North American finds this intent in all of the instruments when read as a whole. We hold, however, that the instruments do not establish such intent, as a matter of law, and that the trial court erred in granting summary judgment. Because the circumstances surrounding the transaction are not shown by the summary judgment evidence, we remand in the interest of justice, rather than render, so that the intent of the parties to the transaction may be fully developed.

North American argues that its deed of trust lien is superior to Goidl’s vendor’s lien because the deed, the note, the deed of trust, and the guaranty agreement when read together show an intent by Goidl to subordinate her vendor’s lien, as well as her deed of trust lien. In this respect, North American contends that although the deed from Goidl to L.R.R.S. does, not recite that the vendor’s lien is subordinate to North American’s lien, the contemporaneously executed deed of trust provides that it is “subordinate and inferior to that certain deed of trust secured by the hereinabove described land in favor of NORTH AMERICAN MORTGAGE INVESTORS . Thus, it concludes that this language in Goidl’s deed of trust shows her intent to also subordinate her vendor’s lien. Essentially, North American reasons that the vendor’s lien and deed of trust lien are the same. In this respect, it argues that since both have the status of purchase money liens on the same property, the vendor’s lien is merged with the deed of trust lien, and, consequently, the vendor’s lien was subordinated to the lien held by North American by the language in Goidl’s deed of trust lien. We cannot agree. This contention ignores the very nature of a vendor’s lien, retained in the deed, as a separate lien apart from a deed of trust lien, and as superior to any subsequent claim against the property in the absence of an agreement to the contrary. R. B. Spencer & Co. v. May, 78 S.W.2d 665, 667 (Tex.Civ.App.—Waco 1935, writ ref’d (per Alexander, J., Later C. J. of Sup.Ct.); cf. Jordan v. Brown, 149 S.W.2d 1045 (Tex.Civ.App.—Waco 1941, writ ref’d) (seller’s agreement to subordinate his vendor’s lien held binding). Such an agreement cannot be inferred solely from the subordinating provision in the deed of trust since, by its terms, this provision specifies only the deed of trust; no mention is made of the vendor’s lien. Since the two are separate liens, and the vendor’s lien was not subordinated insofar as the record shows, we conclude that the trial court erred in granting summary judgment to North American.

Our holding that the two liens are not merged is supported by cases holding that a seller does not waive his rights under his vendor’s lien by taking a deed of trust as additional security. DeBruhl v. Maas, 54 Tex. 464 (1881); DeBusk v. Jacksonville Building & Loan Ass’n, 147 S.W.2d 537, 541 (Tex.Civ.App.—Eastland 1941, writ dism’d, judgmt. corr.). Mitchell v. Dallas Loan Co., 52 S.W.2d 756 (Tex.Civ.App.—Dallas 1932, no writ).

Neither does the guaranty agreement show the intent to subordinate, as contended by North American, since the record fails to show that she accepted it and acted upon it. Assuming that we may look to the guaranty for intent, it sheds no light on the problem. The guaranty agreement states that Goidl’s note is “secured by a vendor’s lien and deed of trust lien on the property second and subordinate” to North American’s lien. The guaranty is, however, ambiguous with respect to this intent because the guaranty agreement is subject to the interpretation that the two are separate liens held by the vendor, as asserted by Goidl, and that she subordinated only the lien created by the deed of trust. It can also be reasonably read to mean that she intended to subordinate her vendor’s lien as wéll. This is true because the guaranty agreement identifies the note in question as a “second lien note” and states that it is “secured by a vendor’s lien and a deed of trust lien second and subordinate to North American’s lien.” Whether the words “second and subordinate to the lien of North American” modifies only “deed of trust lien” or whether it also modifies “vendor’s lien” is unclear. Thus, it is capable of two reasonable, yet different, meanings.

Since from a reading of the documents we are uncertain whether Goidl intended to subordinate her vendor’s lien, we cannot render summary judgment for Goidl, as she urges. Our problem lies in the fact that the subordinated deed of trust was given Goidl to secure the same purchase-money note. As we have noted, supra, a vendor’s lien exists separate and apart from a lien created by a deed of trust, although both may secure payment of the purchase price. They differ only with respect to remedies. Under a vendor’s lien, if the purchase money is not paid, a seller may elect to rescind the sale or judicially foreclose the vendor’s lien, as Goidl seeks to do here. A deed of trust given to secure the purchase price merely gives the seller an additional remedy of extra-judicial foreclosure. It seems extraordinary to us that the parties would use language in Goidl’s deed of trust subordinating it to North American’s deed of trust but did not intend also to subordinate her vendor’s lien retained in the deed. To subordinate one without the other makes no sense at all and creates uncertainty as to the intent of the parties with respect to whether both of Goidl’s purchase-money liens were to be subordinate or whether only the deed of trust was subordinate. Generally, the parties to an instrument or a series of instruments intend every clause to have some legal effect and to evidence their agreement. See § 230 Restatement of .Contract (1932); See also 3 Williston on Contracts § 610 (1936). Our question here then is what was the intent of the parties in giving Goidl a subordinate deed of trust and not also obtaining a subordination of her vendor’s lien? If only the deed of trust was subordinated to North American, as Goidl contends, it appears to us that the subordination of the deed of trust would be commercially meaningless because North American would not have priority. However, as we have noted, the vendor’s lien was not expressly subordinated. Thus, it appears to us to create an uncertainty with respect to whether the parties intended North American’s lien to be superior to Goidl’s liens. This is particularly true here since all of the instruments were executed simultaneously as part of the same transaction. Ordinarily, the rule is that where a question of construction of a contract is presented, we must take the language used in the instruments and consider this language in the light of the surrounding circumstances, and apply the pertinent rules of construction to determine the meaning of the agreement. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 519 (Tex.1968). Since none of the surrounding circumstances are shown by the summary judgment evidence and, since the intent of the parties is unclear from the instruments in this record, we reverse and remand, rather than render, in the interest of justice so that their intent may be ascertained from the surrounding circumstances of the transaction. Tex.R.Civ.P. 434; Carnes v. Meador, 533 S.W.2d 365 (Tex.Civ.App.—Dallas 1975, writ ref’d n.r.e.).


author: ROBERTSON, Justice.

text:
    Carl HAYS, Petitioner, v. Ron KESSLER, Chairman of the Dallas County Democratic Party and Lonnie Wilson, Frances Dirks, Dwight Patterson and Aslee Lewis, Dallas County Democratic Primary Committee, Respondents.
    No. 19613.
    Court of Civil Appeals of Texas, Dallas.
    April 12, 1978.

      Douglas R. Larson, Johnston, Larson & Dixon, Dallas, for petitioner.
    William Allensworth, Haynes & Boone, Dallas, for respondents.
   ROBERTSON, Justice.

Carl Hays seeks a writ of mandamus to compel the Dallas County Democratic Primary Committee to place his name on the Democratic Primary Ballot as a candidate for State Representative, Place 33-G. In order to have his name placed on the ballot, Hays was required to submit an application together with either a filing fee or nominating petitions signed by a specified percentage of the qualified voters which, in this case, is conceded to be ninety-five. Tex. Election Code Ann., art. 13.08 (Vernon Supp.1978). Hays chose to file nominating petitions rather than pay the filing fee. After receiving Hays’ application and petitions, however, the Primary Committee voted to recommend to the Executive Committee of the Dallas County Democratic Party that Hays not be certified for a place on the ballot. The Executive Committee accepted this recommendation, and Hays then filed his petition for mandamus. Since we conclude that, as a matter of law, Hays’ petitions do not comply with the standards required by the Election Code, we deny relief by mandamus.

The primary question in this proceeding is whether Hays’ petitions contain the necessary information required to qualify him for a place on the ballot, namely, that at least ninety-five of the signers were qualified to vote in the primary election. Before addressing this question, however, we must decide two preliminary issues; first, we must determine whether the Primary Committee’s failure to file a sworn denial of the facts set forth in Hay’s petition forecloses its right to challenge the sufficiency of the petitions; second, we must decide whether the Primary Committee may now raise arguments against the petitions which it did not consider at the time it recommended against certification.

The Primary Committee argues that Hays’ nominating petitions are insufficient because less than ninety-five signatures are accompanied by valid voter-registration numbers. Hays urges, however, that since the Primary Committee failed to file a sworn denial of his petition for mandamus, it has waived its right to challenge the sufficiency of his petitions. This argument is based upon Article 13.08(d) of the Election Code, which provides that a verified petition is “prima facie evidence that the signatures thereon are genuine and the persons signing it are registered voters.” According to Hays, his verified nominating petitions are thus prima facie evidence of his right to appear on the ballot, and in the absence of a sworn denial of this evidence, the voting qualifications of the signers must be deemed admitted. We cannot accept this contention. We recognize that when no sworn denial of facts alleged in a petition for mandamus is filed, all factual allegations in the petition must be accepted as true. Burgemeister v. Anderson, 113 Tex. 495, 259 S.W. 1078 (1924); Narro Warehouse, Inc. v. Kelly, 530 S.W.2d 146 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). In this case, however, we conclude that a sufficient verified opposition has been filed. While it is true that neither respondents’ answer nor their supporting brief was sworn, the brief referred to accompanying affidavits of the Deputy Tax Assessor/Collector which certified attached voter registration records. The affidavits were filed at the same time as the answer and the brief, and it would be overly technical to require verification of allegations in an answer when the necessary evidence to support those allegations is supported by verified affidavits. Accordingly, we hold that the Committee’s response is sufficiently verified to act as a sworn answer to Hays’ petition for mandamus. Thus, we may consider the Committee’s arguments regarding voter qualifications.

Hays next argues that since the Committee did not consider the issue of voter qualification at the time it recommended against certifying him for a position on the ballot, it is now precluded from raising that issue in this proceeding. Hays bases this contention on Article 13.14 of the Election Code which provides that the Committee shall meet “on the fourth Monday in March” preceding the primary election and “make up the official ballot . . . ”.

Hays urges that presentation of his verified petitions established his right to appear on the ballot subject to challenge by the Committee or an opponent for irregularities, and that any such challenge must be made before the statutory date for making up the ballots. He insists that if no facts controverting a candidate’s qualifications are raised before that time, the Committee has a clear duty to place the candidate’s name on the ballot. According to Hays, this duty remains outstanding despite later discovery of facts which negate the candidate’s right to appear on the ballot.

Hays further argues that the provision of Article 13.08(d), above mentioned, making the petition when properly verified “prima facie evidence that the signatures thereon are genuine and the persons signing it are registered voters,” requires the Committee to accept the petition at face value in the absence of any challenge. He points to the written opposition filed by his opponent, attached to the application for mandamus, which, he says, is-insufficient to show that the valid signatures on the petition numbered less than ninety-five. We conclude that the Committee is not limited to the opposition presented at that meeting. Since the petition is only “prima facie evidence,” the Committee had the responsibility to determine the validity of the signatures, and they were authorized to make their own investigations by comparing the names with voter-registration lists, or otherwise. Presumably they have done so, and they now show on the basis of receipts from the tax office that eight additional signatures are invalid. The present record does not show whether the committee had that information at the time they made their decisions, but we regard that circumstance as immaterial. The question before us is whether they now have a clear ministerial duty to put Hays’ name on the ballot. We hold that they do not because the evidence before us reflects the “prima facie evidence” provided by the petition. Even assuming Hays is correct in his arguments regarding the improper striking of certain names because of signature and address deficiencies, the Committee has produced affidavits and certified records from the Deputy Tax Assessor/Collector of Dallas County which show that at least eight other signers were not qualified voters. Article 13.08(d) of the Election Code provides that “the petition must show the following information with respect to each signer: . his current voter registration certificate number . . . ” When Hays’ final number of allegedly qualified signatures is reduced by the eight unqualified voters, the number of valid signatures on his nominating petitions is less than the ninety-five signatures required by Article 13.08(d) of the Election Code. Since the provisions of this statute are mandatory, Brown v. Walker, 377 S.W.2d 630, 632 (Tex.1964); Geiger v. DeBusk, 534 S.W.2d 437, 438-39 (Tex.Civ.App.—Dallas 1976, no writ), Hays’ non-compliance justified the Committee’s refusal to place his name on the ballot.

We conclude that the circumstances do not establish Hays’ right to relief by mandamus. In order to obtain such relief, the petitioner must show that he has a clear right to the action sought to be compelled and that the respondent has a ministerial duty to perform it. Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex.1969); Wichita County v. Griffin, 284 S.W.2d 253 (Tex.Civ.App.—Fort Worth 1956, writ ref’d n. r. e.). Since the evidence before us shows that the petitioners did not comply with the Election Code in that they do not have the required number of signatures with addresses and correct voter-registration numbers, we cannot hold that the Committee has a clear duty to put Hays’ name on the ballot.

The ballots for the Democratic Primary to be held in May, 1978 are presently being printed. For that reason, we direct that a motion for rehearing by Hays will not be entertained. His remedy is to seek mandamus from the supreme court.

Mandamus denied.

      . Hays argues that hand-lettered or printed names are valid “signatures” under the Election Code, and that ditto (") and check (/) marks under certain addresses indicate that the signer intended to reflect his address as the one appearing immediately above. Hays does not, however, challenge the Committee’s striking of those names for which no address is indicated, those for which no voter registration number appears, or those signatures which are not dated.


author: NYE, Chief Justice.

text:
    NATIONAL BANK OF COMMERCE OF BROWNSVILLE, Appellant, v. F. R. HERNANDEZ CONSTRUCTION & SUPPLY COMPANY, INC., Corpus Christi Brick & Lumber Company, d/b/a Port Isabel Joint Venture, and Jackson S. Ryan, F. R. Hernandez, and Moises Carrasco, Appellees.
    No. 1256.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 13, 1978.
    Rehearing Denied April 27, 1978.

      Franklin T. Graham, Jr., Brownsville, for appellant.
    Curtis Bonner, Bonner & Bonner, Harlin-gen, for appellees.
   OPINION

NYE, Chief Justice.

In a bifurcated trial in a suit on a promissory note, after the trial court had granted the Bank judgment for principal and interest on the note, and after the defendants had paid the principal amount due thereon, the trial court conducted a hearing on the amount of attorney fees due. The court found that the holder of the note was entitled to $10,000.00 in attorney fees which it found to be reasonable. The National Bank of Commerce of Brownsville, holder of the note, appeals, contending that it is entitled to the stipulated amount set forth in the note as attorney fees.

The note was dated July 15, 1975, and was past due at the time of trial. The note provides:

“In the event that this note is placed into the hands of an attorney for collection, or if collected through probate or bankruptcy proceedings, then an additional fifteen per cent (15%) on the amount of principal and interest then owing thereon shall be added to the same as attorney’s fees.”

On November 5,1976, a renewal and extension agreement was delivered and received by the Bank extending the time for payment until December 15,1976. This extension agreement was signed by the maker and guarantors, the defendants herein.

On December 15, 1976, before the note was paid, the Bank placed the note in the hands of its attorney, the Honorable Franklin T. Graham, Jr., for collection and agreed to pay said attorney 15% of the outstanding principal and interest due thereunder as attorney fees.

Suit was instituted by the Bank against F. R. Hernandez Construction & Supply, Inc., Corpus Christi Brick & Lumber Company, d/b/a Port Isabel Joint Venture, Jackson S. Ryan, F. R. Hernandez and Moisés Carrasco, seeking the recovery of the remaining principal balance and interest due thereon under the terms of the note, attorney fees in the amount of 15% of the outstanding principal and interest, and costs of suit.

The case was heard on March 17, 1977, during which time the extended guarantee agreement, (duly signed by all the defendants), was introduced and received into evidence without objection. After the parties rested, the trial court announced that it was awarding judgment in favor of plaintiff for the principal and interest due under the terms of the note of One Hundred Five Thousand Nine Hundred Sixteen and 74/ioo ($105,916.74) Dollars, and attorney fees as provided for under the terms of the note equal to fifteen (15%) per cent of the outstanding principal and interest then due. Defendants objected to the award of attorney fees and the court, thereafter, set a separate hearing for April 19, 1977, to consider the question of “reasonable attorneys fees”. At the hearing on April 19, 1977, it was brought to the attention of the court that the principal and interest due under the terms of the note, (One Hundred Five Thousand Nine Hundred Sixteen and 74/ioo ($105,916.74) Dollars), had been paid to plaintiff Bank. The court then entered judgment in favor of the Bank against all defendants, jointly and severally, for $10,-000.00, as attorney fees and for all costs of suit. The trial court filed the following pertinent findings of fact:

* * ‡ * * *
“3. That the Guarantee Agreement, Exhibit ‘C’, attached to Plaintiff’s Original Petition was signed by Jackson S. Ryan. (One of the defendant guarantors).
4. That the Guarantee Agreement, Exhibit ‘B’, attached to Plaintiffs Original Petition was signed by F. R. Hernandez. (One of the defendant guarantors).
5. That the Guarantee Agreement, Exhibit ‘E’, attached to Plaintiff’s Original Petition was signed by Moisés M. Carrasco. (One of the defendant guarantors).
* * * * * $
10. That attorney’s fees in the sum of $10,000.00 is reasonable for the services as rendered by Plaintiff’s attorney herein.”
* * * ⅜5 * *

The trial court did not find that the attorney fee agreement between plaintiff Bank and its attorney to pay him fifteen (15%) per cent of the outstanding principal and interest .as an attorney fee was unreasonable. No request for additional or supplemental findings of fact was made.

Appellant Bank asserts two points of error on appeal: that the trial court erred in failing to grant the Bank attorney’s fees in the amount of $15,887.51; and that the trial court erred in granting a lesser amount without proof and a finding of fact that the agreement between the Bank and its attorney calling for the payment to said attorney of 15% of the unpaid principal and interest due thereon as an attorney’s fee was unreasonable. ^

The holder of a note, in a case such as this, is entitled to collect the attorney fees stipulated therein unless issue is affirmatively pled and ultimately proved by the defendant that such stipulated amount of attorney fees in the note is unreasonable. In such a case, the holder is only entitled to the amount ultimately proved to be reasonable according to the evidence. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 950 (1960). The Courts of Civil Appeals have construed the Kuper case to mean that the defendant must prove first the unreasonableness of the attorney fees “as a matter of affirmative defense”. Highlands Cable Television Inc. v. Wong, 547 S.W.2d 324, 327 (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.); International Shelters, Inc. v. Corpus Christi State National Bank, 475 S.W.2d 334, 336 (Tex.Civ.App.—Corpus Christi 1971, no writ); Fisher v. Howard, 389 S.W.2d 482, 487 (Tex.Civ.App.—Dallas 1965, no writ); Twin City Bowling Lanes v. C. I. T. Corporation, 376 S.W.2d 94, 96 (Tex.Civ. App.—Fort Worth 1964, no writ); Gardner v. Associates Inv. Co., 171 S.W.2d 381, 384 (Tex.Civ.App.—Amarillo 1943, writ ref’d w. o. m.). The appellees contend in effect that inasmuch as the trial court found that $10,-000.00 was a reasonable amount, that it necessarily follows that the trial court must have found that the 15% stipulated in the note was unreasonable. The appellees further argue that since the trial court specifically found that $10,000.00 was a reasonable amount, that this Court should affirm the trial court’s judgment by impliedly finding that the stipulated attorney fees in the note of 15% was unreasonable.

Rule 299 T.R.C.P. provides in part with respect to nonjury trials:

“The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; but where one or more elements thereof have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment.”
‡ * * * * ⅜

We hold that the express findings made by the trial judge cannot extend by implication to cover future independent issuable facts. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627, 634 (1957); Gasperson v. Madill National Bank, 455 S.W.2d 381, 399 (Tex.Civ.App.—Fort Worth 1970, writ ref d n. r. e.); McKenzie v. Carte, 385 S.W.2d 520, 529 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). Appellees cannot ignore the above cited rule. Once the trial court made the specific finding that a certain attorney fee was reasonable, it was their duty to request a further finding concerning their affirmative defense upon which they now rely, i. e., that the stipulated amount in the note was unreasonable. If the single finding were here to be construed as appellees would have us do, there would be no affirmative defense of unreasonableness of attorney fees — only a single issue as to its reasonableness. The Courts do not support this rationale. Highlands Cable Television Inc. v. Young; International Shelters, Inc. v. Corpus Christi State National Bank; Fisher v. Howard; Twin City Bowling Lanes v. C.I.T. Corporation; Gardner v. Associates Inv. Co. (supra).

The appellee-defendants by cross point urge that the trial court erred in awarding judgment against defendants Ryan, Hernandez and Carrasco as guarantors for the reason that the actual guarantee agreements were never offered nor received in evidence. Therefore, they argue, the judgment for attorney fees should not be against them as individuals.

In a conversation among the trial judge, Bonner, the attorney for all of the defendants (appellees), and Graham, the attorney for plaintiff (appellant), it was stipulated that the guarantee agreements attached to plaintiff’s petition were true and correct copies of the originals which were executed by defendants.

“MR. GRAHAM: The only thing, then, Your Honor, would be whether or not there would be a stipulation of the necessity for the plaintiff to show the individual guarantees, unlimited guarantees, by the Defendant Jackson S. Ryan, Moisés Carrasco, and F. R. Hernandez.
THE COURT: You represent all the defendants?
MR. BONNER: Yes. All of the exhibits attached to plaintiff’s petition are true and correct copies of the originals as executed by the defendants.”

Although the specific original guarantee agreements were not formally introduced into evidence, the defendant-guarantors were liable on the note and for the attorney fees by virtue of the extension agreement which was introduced into evidence. Each of the guarantors signed and agreed to the terms of the note in the extension agreement. No one questioned any of the terms of the note in such agreement. One of the guarantors, defendant Hernandez, admitted to its authenticity. There is no question that the evidence before the trial court bound all of the defendants jointly and severally on the note (which has been paid), and the attorney fees, the subject matter of this appeal.

The judgment of the trial court is accordingly reversed, and judgment is here rendered that plaintiff recover $15,887.51 as attorney fees against all the defendants, jointly and severally, with interest thereon at the rate of 9% per annum from the 25th day of April, 1977, and for all costs.

REVERSED AND RENDERED.


author: CLAYTON, Justice.

text:
    Leroy CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. John CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    As Modified May 2, 1978.
    Jack Emory Farley, Public Defender, William M. Radigan, M. Gail Robinson, Asst. Public Defenders, Frankfort, for appellant Leroy Campbell.
    Alva A. Hollon, Hazard, Henry L. Rosen-thal, Jr., Winchester, for appellant John Campbell.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

First cousins John and Leroy Campbell appeal from judgments sentencing each to 20 years’ imprisonment for murdering 63-year-old Pearl Campbell (no relation) by stabbing him with a knife. Cf. KRS 507.-020.

We reverse as to both. It is our conclusion that there was not enough evidence to justify John’s conviction for murder; and while we are convinced that there was sufficient evidence to support Leroy’s conviction, it is our opinion that he did not receive a fair and impartial trial due to improper conduct on the part of the prosecuting attorney.

Pearl Campbell’s body, clothed in a faded plaid shirt and trousers, was discovered on Monday, July 12, 1976, in a wooded area in Clark County near the Clintonville Road, about one-tenth of a mile from the Van Meter Road intersection. An autopsy revealed the cause of death to be a stab wound to the heart, which resulted in bleeding in the chest cavity. Time of death was ascertained to be between 4 and 5 p.m. on the previous Saturday, July 10.

The evidence presented by the Commonwealth established that earlier that same Saturday, around 1 p.m., Leroy Campbell had entered the Dew Drop Inn, a tavern in downtown Lexington owned by one Woodrow Duff. Upon being informed by Duff that the pub was not open for business, Leroy departed. Sometime between 2 and 2:45 p.m., however, he returned, this time accompanied by John Campbell, Pearl Campbell and Roger Garrett, all with whom Duff was well acquainted. The four men strode past the front of Duff’s building to an adjacent parking lot, where each drank from something in a paper sack in Pearl’s possession, then climbed into a small green automobile with the letters SS on the side. This car was later shown to be a Chevrolet Nova Super Sport belonging to Leroy’s brother Sam and bearing Indiana license plate number 93G7519.

High school students Lee Bryant and Lisa Imig testified that later that afternoon, between 4 and 5 p.m., they were driving home with some carry-out food on the Clintonville Road when they spotted a late-model Nova parked on the shoulder of the road, some 45 feet from Van Meter Road. Next to the car, two men had pulled another man up from a ditch by the road and were holding his arms while yet another man struck him repeatedly with his fists. Although neither Miss Bryant nor Miss Imig could identify the culprits, they did note that the victim was an older man and that he was wearing a plaid shirt. As their car got closer, the three men placed their arms around the older man, in the words of Miss Bryant, “like they were trying to give the impression that they were all friends,” and waved at the girls. After Miss Bryant and Miss Imig had passed, the three men resumed their assault.

Farmers Bill Lamb, Earl Noble, Tommy Neal and James Hounshell were also travelers on the Clintonville Road during this time period, all returning home after spraying tobacco earlier in the day. Lamb, who was driving alone in his own vehicle, stated that as he approached Van Meter Road, he had to swerve around a Chevrolet which was parked partially on and partially off the side of the road. As he passed by the car, he saw three men standing on the edge of the road with their backs to him.

Noble, Neal and Hounshell were riding in Noble’s pickup truck, like Lamb heading south. Approximately 100 feet from Van Meter Road, the southbound lane was blocked by an automobile with an Indiana tag. Neal and Hounshell testified that the car was a green Nova; Hounshell further remembered that the first two digits of the license number were “93”. As Noble reduced his speed, a curly-headed man around 6 feet tall ran across the road in front of them and climbed a fence. Both Noble and Neal positively identified this man as Leroy Campbell.

At the conclusion of the prosecution’s case, John and Leroy each moved for a directed verdict of acquittal. After both motions had been denied, Leroy took the stand and asserted an alibi defense, which was supported to some extent by the affidavits of two out-of-state witnesses, Everett and Laura Belle Garrett. John did not testify, nor did he call any witnesses in his own behalf.

At the close of all the evidence, John and Leroy renewed their motions for directed verdicts, but again were overruled. The trial court then instructed the jury on murder, aiding and abetting murder, first-degree manslaughter and aiding and abetting first-degree manslaughter. It is from the jury’s verdicts finding each guilty under the first-mentioned instruction that John and Leroy now appeal.

John’s only, and Leroy’s first, contention is that the evidence presented by the Commonwealth at trial was entirely insufficient to warrant submission of the case to the jury. There is no doubt that Pearl Campbell’s death was caused by a criminal act, since the autopsy revealed that he had suffered several stab wounds as well as a blow to the head. The crucial question, therefore, is whether the Commonwealth adequately demonstrated that John or Leroy, or both, either actually committed the murder of Pearl Campbell or at least aided in its commission.

With respect to John, it will be recalled that he was never identified as being at the scene of the crime. Thus, while the similarity between the number of persons seen entering the green Nova in front of Woodrow Duff’s tavern and the number of persons spotted near the Clintonville Road on Saturday, July 10, 1976, may raise one’s eyebrow a bit, the only evidence which can truly be said to connect John in particular with the homicide is the fact that he was in the company of Pearl Campbell some one to three hours prior to the murder. This court has consistently held like evidence insufficient to prove a criminal act or agency. See, e. g., Hollin v. Commonwealth, Ky., 307 S.W.2d 910 (1957); Morgan v. Commonwealth, 285 Ky. 184, 147 S.W.2d 378 (1941). Because such an agency on the part of John was not satisfactorily established, the trial court erred by refusing to grant John’s motion for a directed verdict of acquittal and his conviction must be reversed on this ground.

With respect to Leroy, on the other hand, the evidence did tend to establish the necessary agency. Although it is true that the evidence technically does not support the jury’s finding that Leroy murdered Pearl, since we do not know who actually stabbed him, see Marcum v. Commonwealth, Ky., 496 S.W.2d 346 (1973), the evidence was certainly sufficient to submit the case to the jury on the theory that Leroy was an accomplice in the murder. For this reason, the trial court acted properly in denying Leroy’s motion for a directed verdict. A motion for a directed verdict of acquittal should only be made (or granted) when the defendant is entitled to a complete acquittal — i. e., when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses. Compare Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525, 529 (1977), with Trowel v. Commonwealth, Ky., 550 S.W.2d 530, 533 (1977). The proper method for obtaining relief in this situation would have been to object to the instruction upon which the jury’s finding that Leroy stabbed Pearl was based; because Leroy failed to do so,,he cannot now be allowed to complain. RCr 9.54(2).

Leroy’s next contention is that the trial court committed reversible error by admitting incompetent evidence over his objection. During the direct examination of Woodrow Duff, the prosecutor asked him this question: “Q. Mr. Duff, have you received any threatening phone calls prior to . A. Yes.” Defense counsel objected to this question and the objection was sustained. The Commonwealth’s Attorney then proceeded to ask Duff if he wasn’t “scared to testify today here in this courtroom?” Defense counsel immediately objected again and the following colloquy ensued at the bench:

COMMONWEALTH’S ATTORNEY: Judge, this man has received threatening phone calls about not testifying here. He can’t testify who he got them from, but I think I can bring that in to show he is scared to death. And I can ask him if he is scared.
THE COURT: You can ask him if he is scared, but you can’t go into any phone calls. (Emphasis added).

After the court admonished the jury not to consider the testimony about the witness having received threatening calls, Duff was again asked if he was afraid to testify; he replied that he was.

We wholeheartedly agree that this testimony should not have been admitted into evidence. It is our considered opinion, however, that if anyone is to bear the blame for this impropriety, it should be the Commonwealth’s Attorney, not the trial court; for the plain fact of the matter is, this line of questioning should never have been pursued in the1 first place.

It is a rule of longstanding in this jurisdiction that evidence that a witness has been threatened or otherwise influenced in an attempt to suppress his testimony is admissible in a criminal prosecution only where the threat was made by, or on behalf of, the accused. Dorris v. Commonwealth, 227 Ky. 809, 14 S.W.2d 136 (1929); Steele v. Commonwealth, 262 Ky. 206, 90 S.W.2d 8 (1936); Morgan v. Commonwealth, 283 Ky. 588, 142 S.W.2d 123 (1940). Here, the Commonwealth’s Attorney knew that Duff was unable to identify the person who had scared him by making threatening phone calls, yet he deliberately asked the questions anyway. The prosecutor’s purpose in doing so was obviously to implant in the minds of the jurors the notion that John and Leroy were responsible for the threats — and that they must therefore be guilty of the murder since an innocent person would feel no need to resort to such practices — a notion which he hammered home in his closing argument by telling the jury that Duff was “scared to death of that bunch over there.”

This method of injecting into the ease matter which is prejudicial to the rights of the accused, but which the law does not permit the jury to hear, cannot and will not be tolerated in this jurisdiction. See Bowler v. Commonwealth, Ky., 558 S.W.2d 169 (1977). Given the fact that the prosecutor reinstated by his remark during closing argument the link between Leroy and the threatening calls, a link which otherwise might have been dispelled by the court’s admonition, and given the fact that Leroy received the minimum sentence for the crime for which he was convicted, which indicates to us a compromise among the jurors, we cannot say that this error was harmless beyond a reasonable doubt. Consequently, it is our conclusion that Leroy’s conviction must be reversed.

Although we do not choose to rely upon it as an alternative ground for reversal of Leroy’s conviction, inasmuch as it was not objected to below, we are compelled in the exercise of our supervisory function to make mention of yet another instance of prosecutorial abuse. As mentioned previously, Leroy testified in his own behalf at trial. While being asked about his arrest on cross-examination, Leroy was asked the following questions and gave the following answers:

Q. Now coming back up here, Detective Stevens advised you of your rights didn’t he?
A. Yes.
Q. And he has said you said some things to him coming back up here. Did you ever at any time to Detective Stevens deny that you had committed this murder?
A. We never talked about it.
Q. You never at any time told him you were innocent of this charge, did you?
A. He advised me of my rights and I told him I didn’t want to talk to him.

The prosecutor returned to this theme in his closing argument, emphatically reminding the jury that “not once did he say, T didn’t do that. I didn’t do that.’ ”

The use for impeachment purposes of the fact that an accused failed to deny his guilt upon arrest, is clearly improper. Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976). Indeed, the United States Supreme Court has held in no uncertain terms that such a tactic constitutes a violation of the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The Commonwealth concedes this to be so, but argues that the prosecuting attorney likely did not know of this rule, as it takes a long time for news of such decisions to filter down to the “backwoods” of Kentucky. We find this contention immensely difficult to swallow.

By the time this case went to trial on October 13, 1976, Doyle had been on the books for almost four months, Niemeyer for over eight. Moreover, it had been some ten years since the United States Supreme Court had announced in Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966), that:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.

We think that the prosecutor in this case has had more than enough time to digest this rule. For that reason we find his conduct to be an inexcusable breach of his duty as an officer of this court to prosecute with an eye towards fairness as well as with an eye towards winning.

We did not reverse the conviction in Niemeyer because we thought that a word of caution would suffice to curb this practice; apparently we were wrong. While we have not yet reached the point where we think it necessary to invoke the prophylactic rule suggested by our brother Lukowsky in his dissenting opinion in Darnell v. Commonwealth, Ky., 558 S.W.2d 590 (1977), we must admit our patience is wearing thin.

Judgment on Leroy’s remaining contentions is reserved.

The judgments are reversed, with directions to grant both appellants a new trial. If upon such a trial the evidence is substantially the same, John will be entitled to a directed verdict of acquittal.

All concur.

      . Roger Garrett was also indicted in connection with the homicide, but was not apprehended until sometime after the Campbells’ joint trial, held in mid-October of 1976. He was subsequently tried, convicted and sentenced to 20 years for aiding and abetting murder, a conviction which has since been upheld by this court. See Garrett v. Commonwealth, Ky., 560 S.W.2d 805 (decided December 9, 1977).


author: STEPHENSON, Justice.

text:
    Grover BURGESS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 11, 1978.

      Jack Emory Farley, Public Defender, Mark A. Posnansky, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., David M. Whalin, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Grover Burgess was indicted and convicted of murder, KRS 507.020, and of first-degree assault, KRS 508.010. Burgess was sentenced to a term of 20 years on the conviction of murder and to a term of 10 years on the conviction of first-degree assault. We reverse.

Burgess shot and killed Glen Rainey with a rifle and shot and wounded his estranged wife, Sue Burgess. In view of the issues presented on this appeal, a detailed recitation of the factual situation is not necessary.

Prior to trial, Burgess served notice that he would rely on the defense of insanity, KRS 504.050.

During the course of the trial, Burgess introduced a clinical psychologist with a Ph.D. degree in psychology as a witness. This witness narrated the tests performed on Burgess and his observations but was not permitted by the trial court to express an opinion as to Burgess’ mental condition. We are of the opinion the ruling by the trial court was prejudicial error requiring reversal for a new trial.

We held in Mosley v. Commonwealth, Ky., 420 S.W.2d 679 (1967), that a clinical psychologist with a Ph.D. in psychology was competent to testify as to the mental condition of a witness in order to impeach the credibility of the witness. We view the proffered testimony here as that of a qualified expert and hold that a clinical psychologist is competent to testify, with a proper foundation, as to the mental condition of an accused.

Burgess declined to call his treating physician after the trial court ruled that the Commonwealth would be permitted to introduce evidence of a prior felony conviction for income tax evasion for the purpose of impeachment. Burgess argues that Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), which established the rule that only past felony convictions that relate to the issue of credibility, i. e. past felony convictions involving dishonesty are admissible for the purposes of impeachment, is not applicable to an expert witness (here a physician) for the reason that the conviction in no way related to his expertise as a physician. We do not see any distinction in Cotton as to whether or not the witness is an expert or whether the witness is testifying within his professional expertise. The theory of Cotton is that the evidence of a prior conviction of a felony involving dishonesty is competent for the jury to consider as it may bear on the credibility of a witness without any exception for expert witnesses. We find nothing in Cotton even implying that the rule should be restricted to particular types of witnesses. We do not consider the ruling that a conviction which occurred 10 years prior to this trial was admissible an abuse of discretion as being too remote. Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1978).

Lastly, the trial court excluded the opinion of certain lay witnesses offered by Burgess. No avowal was made, so we do not consider this issue preserved for review. We do observe that in Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977), we held that laymen who have had the opportunity by association and observation to form an opinion as to the sanity of a person, may testify to that opinion, giving the facts upon which the opinion is based so the jury may determine the weight to be given to the evidence.

The judgment is reversed with directions that Burgess be granted a new trial.

All concur.