author: KEITH, Justice.

text:
    LONE STAR LIFE INSURANCE COMPANY, Appellant, v. Joseph B. GRIFFIN, Appellee.
    No. 8117.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 26, 1978.
    Rehearing Denied Nov. 16, 1978.

      James J. Zeleskey, Lufkin, for appellant. John Seale, Jasper, for appellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment entered in a suit for disability benefits under a policy of insurance it had issued to the plaintiff. Upon the basis of the jury’s answers to certain special issues, to be discussed hereinafter, the judgment awarded plaintiff the present or discounted value of all past due installments and those to accrue in the future, $34,-518.40, twelve percent penalty, $4,142.21, plus $9,900.00 in attorney’s fees.

Purporting to act under Art. 17.50(b), Business and Commerce Code, and Section 16, Art. 21.21 of the Insurance Code, each of such awards was trebled so that the total judgment against the defendant was in the sum of $132,181.83, with interest at nine percent per annum. Defendant has perfected the appeal with a myriad of points of error complaining of the basic award and of the action of the court in trebling the recovery under the cited statutes.

1. The Suit on the Policy

Legal and factual sufficiency points are urged against the jury finding in Special Issue No. 3 that plaintiff’s accidental injury on February 2, 1975, which resulted in his total disability was permanent. We will follow the accepted standards of review in our discussion of the evidentiary points. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Plaintiff testified that on the night of February 2,1975, as he was returning to his home from his farm, he passed by his drugstore. As was his custom, he entered the store to see if everything was normal (having been burglarized several times in the past). He smelled smoke which he found to be coming from the rear of his building. He testified that he emptied his fire extinguisher but his efforts were futile; that he was trying to get out of the building when an aerosol can exploded in his face; that he lost consciousness while upon the floor of the store near a door, and regained consciousness later in a hospital in Jasper.

Dr. Lee Popejoy testified as to his treatment of the plaintiff beginning at about two in the morning following the fire. He told of finding external burns on several parts of plaintiff’s body but the most serious injury was to his lungs from the inhalation of smoke and fumes. Plaintiff was hospitalized for several weeks and testified that he was unable to do any work for several months thereafter.

Plaintiff operated a one-pharmacist store on the Courthouse Square in Newton and he secured the services of a retired pharmacist to help him for a while. He testified that he was unable to do the work of a pharmacist because of his difficulty in breathing and that while his health had improved, he still was unable to do his work in the store.

Dr. Popejoy testified positively and unequivocally that plaintiff’s injuries were caused by the inhalation of the smoke and fumes which resulted in his total and permanent disability. Dr. Charles Anderson examined plaintiff for the defendant. His examination was more than two years after the accident and he found plaintiff to be only partially disabled, at the worst. Anderson attributed plaintiff’s condition to his constant smoking of cigarettes which he admitted to have been addicted to for approximately fifty years. Anderson testified that plaintiff could do all of the work of a pharmacist but could not do any sustained heavy lifting.

Having condensed our lengthy factual record, we overrule defendant’s first five points of error challenging the legal and factual sufficiency of the evidence to sustain the finding that the total disability was permanent.

2. Anticipatory Breach of the Insurance Contract

The policy of insurance provided that defendant would pay plaintiff $1,000 per month for sixty months for an accidental injury resulting in total disability and that it would pay $1,000 per month for twenty-four months for total disability resulting from sickness. Defendant paid several monthly payments of $1,000, noting on each check that the payment was for accidental injuries. Without any change in its medical information in its file — and for some undisclosed reason — the checks were coded to indicate that the disability was the result of sickness, not an accident. The twenty-fourth payment was coded to indicate a sickness disability payment and a letter was written which we quote in the margin. The check indicated it was the last payment.

Plaintiff alleged and now contends that the defendant, by sending the quoted letter, “repudiated the provisions of its policy dealing with payment of benefits for disability resulting from accident” so as to entitle him to recover not only the past due payments but “also the present cash value of the future payments which are unaccrued.” Although defendant contended that there was no anticipatory breach, the parties stipulated that a discount rate of five percent would be applied (and it was so applied) to the unaccrued payments in the judgment.

In Special Issue No. 6, the jury found that the defendant “repudiated the provisions of its policy dealing with payments of benefits for disability resulting from accident after making payments for 24 months.”

Points six through ten, inclusive, attack the jury finding that the defendant repudiated its policy provisions upon the grounds that the evidence is legally and factually insufficient to sustain such finding. Actually, there are no disputed facts concerning such issue. Defendant wrote the letter; but, when plaintiff complained, it reopened the case, and had him examined by another doctor. Finally, after receiving Dr. Anderson’s report, it tendered an additional $1,900 for disability accruing between the last payment and Anderson’s examination. Insofar as there is a dispute in the record, we will follow the usual standards of review.

The parties cite and rely upon (or distinguish) the identical cases to support their opposing views. The latest expression on the subject which has come to our attention is the Supreme Court’s opinion in Republic Bankers Life Ins. Co. v. Jaeger, 551 S.W.2d 30 (Tex.1976). The Court of Civil Appeals had affirmed a judgment for unaccrued monthly benefits with no allowance of a discount for present payment. (537 S.W.2d 503, 506) The Supreme Court found this to be error and the entire case was remanded to the trial court.

The Court also reaffirmed the correctness of the rule of law enunciated in Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (1937). It is significant to note that the Supreme Court did not in any manner criticize or note its dissatisfaction with the basic holding of the Court of Civil Appeals, namely, that the letter quoted by the Court of Civil Appeals (537 S.W.2d at 505) “showed Republic’s distinct, unequivocal and absolute intent to refuse to perform its obligation under the insurance contract” so as to constitute a repudiation of the policy.

In Jaeger, the insurer attempted to effect a unilateral rescission of the policy; here, defendant argues, it did no more than deny “that the facts as presented entitled the insured to recover under the policy.” The difficulty with this argument is that sometime earlier, and for a reason even now unarticulated, the defendant had downgraded plaintiff’s claim from an accidental injury causing total disability with a 60-month maximum payment to a sickness caused disability with a 24-month maximum payment period. This action was taken at a time when the insurer admittedly had no information (medically or otherwise) in its knowledge which would have authorized any change.

Defendant argues that under the doctrine of the Sanders Case, supra (102 S.W.2d at 407), there is no anticipatory breach shown when the insurer “merely denies liability or claims defenses under the terms of the policy” or refuses to pay “upon mistake or misunderstanding as to matters of fact or upon an erroneous construction of the disability clause.” Considering the letter from its four corners and the condition of defendant’s file at the time it was written, we are not impressed with this argument. We find no merit in the points under consideration and each is overruled. Jaeger, supra (537 S.W.2d at 506).

3. Treble Damages

Defendant has various points of error complaining of the action in overruling its objections to Special Issues Nos. 10 and 11, in not disregarding the jury’s answers to these special issues, and in rendering judgment for treble damages. We will discuss only those points necessary in rendering our decision.

The jury, in answering Special Issues Nos. 10 and 11 affirmatively, went one step further than saying defendant repudiated or breached its insurance contract with plaintiff. It found that defendant’s actions constituted unconscionable conduct and false and misleading representations as to the benefits provided by the policy. Accordingly, the trial court concluded that defendant had violated the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code Ann. § 17.50(a)(3), (4) (Supp.1978). We disagree with this conclusion and hold that as a matter of law defendant’s actions did not constitute unconscionable conduct or false and misleading representations as defined in Section 17.50(a).

Under the plain provisions of his insurance policy, plaintiff had certain rights and defendant had certain obligations. Plaintiff was entitled to be paid $1,000 per month by defendant for a maximum of sixty months while he was totally disabled because of an accidental injury. When plaintiff became disabled, defendant’s obligation to pay was triggered, but defendant breached this obligation after making payments for only twenty-four months. This breach did not terminate defendant’s obligations nor did it extinguish any of plaintiff’s rights to be paid. He did not sustain any damage because of the action of the defendant. He still possessed the same contractual rights after defendant’s breach as he had before and such rights were legally enforceable in a court of law. Defendant’s breach authorized plaintiff to institute and maintain a suit to enforce his contractual rights and to recover the penalty, interest, and attorney’s fees provided in the Insurance Code. There being no violation of Section 17.50(a), the trial court erred in trebling the awards. Points fifteen and twenty-two are sustained.

The legislature has specifically provided for a penalty in addition to actual loss when a health and accident insurance company fails to pay benefits to a policyholder within thirty days after demand has been given — “twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.” Tex.Ins.Code Ann. art. 3.62 (1963). Accordingly, plaintiff, upon a showing that he is entitled to recover under the terms and conditions of his policy, is entitled to the additional sum equal to twelve percent and reasonable attorney’s fees as provided in Article 3.62. His recovery is based upon his contractual rights and its enhancement is under the provisions of the Insurance Code, not under DTPA.

The legislature has also provided remedies for injuries suffered as a result of unfair claim settlement practices in Tex. Ins.Code Ann. art. 21.21-2 (Supp.1963-1977). This section, however, does not confer any private cause of action upon individuals injured by unfair settlement practices. Rather, the State Board of Insurance, upon finding a statutory violation, is empowered to stop such unlawful practices by means of a cease and desist order. Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737, 742 (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.); Alvarez v. West- Chester Fire Insurance Co., 562 S.W.2d 263, 264 (Tex.Civ.App. — San Antonio), reversed on other grounds (Tex.1978); Tex.Ins.Code Ann. art. 21.21-2, § 6(a) (Supp.1963-1977).

We have given careful consideration to two cases relied upon by plaintiff and find neither to be apt or controlling in this case. Ceshker v. Bankers Commercial Life Ins. Co., 558 S.W.2d 102 (Tex.Civ.App.—Tyler 1977), writ ref’d n. r. e., per curiam, 568 5.W.2d 128 (Tex.1978), found the Supreme Court repudiating a holding that “One must be ‘engaged in the business of insurance’ to bring suit under art. 21.21, Tex.Ins.Code Ann.” (558 S.W.2d at 104) Such a holding does not affect our decision in this case.

The other case, Royal Globe Ins. Co. v. Bar Consultants, Inc., 566 S.W.2d 724, 727 (Tex.Civ.App.—Austin 1978, application for writ pending), involved “an untrue statement made under circumstances that misled appellee regarding coverage, and appellee was injured thereby, having relied upon such statements.”

Plaintiff makes no contention here that he relied upon any statements made by defendant or that he was misled to his damage. On the contrary, he sought a reconsideration of the decision that his benefit period had ended; the defendant had him examined by another doctor, it tendered an additional $1,900 benefits thereafter (which were refused by plaintiff); and, plaintiff instituted suit. Even if we assume the statement of defendant was untrue, plaintiff did not rely thereon and suffered no damage because of the statement.

On the other hand, defendant seeks solace from the holding in Mobile County Mut. Ins. Co. v. Jewell, 555 S.W.2d 903, 910-911 (Tex.Civ.App.—El Paso 1977), writ ref’d n. r. e., per curiam, 566 S.W.2d 295 (Tex.1978).

Although there is language in the opinion of the intermediate court which tends to support defendant’s position, it must be admitted that, under the fact structure of the case, such comments constitute dictum. Nevertheless, to the extent that Justice Ward’s analysis of the underlying statutes adds to this holding, it is adopted.

We turn now to a discussion of defendant’s complaints urged in its points twelve and thirteen, that the court had no statutory authority to treble the penalty of twelve percent and the reasonable attorney’s fees authorized by Art. 3.62, Insurance Code. Plaintiff argues that Art. 3.62 treats the penalty and attorney’s fees as “damages”. Again, we disagree.

Tex.Ins.Code Ann. art. 21.21, § 16(b)(1) (Supp.1963-1977), and Tex.Bus. & Comm. Code Ann. § 17.50(b)(1) (Supp.1978) both provide that when their provisions are violated, an insured or a consumer is entitled to “three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended.” (emphasis added) Art. 3.62 of the Insurance Code treats the twelve percent penalty and the attorney’s fees distinctly from “the amount of loss.” We sustain defendant’s points twelve and thirteen.

4. Conclusion

Although the attorney’s fees awarded may seem unusually large, no properly worded challenge has been arrayed against such primary finding of $9,900 in fees. Cf. Republic National Life Ins. Co. v. Heyward, 568 S.W.2d 879, 887 (Tex.Civ.App.—East-land 1978, writ pending).

We have examined the remaining points of error brought forward and, finding no merit, each is overruled. We modify and affirm the trial court’s judgment in this manner: The recovery of $34,518.40 as the present value of the unpaid payments which have matured and those to accrue in the future, the award of the twelve percent penalty upon such sum, plus $9,900 in attorney’s fees are in all things affirmed. The judgment granting any other relief to the plaintiff is reversed and judgment here rendered denying any relief not herein specifically ordered.

Since we have affirmed the judgment in part and reversed in part, we tax the costs on appeal and in the court below equally against the parties. Tex.R.Civ.P. 448; Coca Cola Bottling Co. v. Hobart, 423 S.W.2d 118, 126 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); Combined American Ins. Co. v. City of Hillsboro, 421 S.W.2d 488, 491 (Tex.Civ.App.—Waco 1967, writ ref’d n. r. e.).

The judgment of the trial court is modified and, as modified, it is affirmed.

      . The judgment provided for a remittitur of $4,500 if no appeal was perfected to the Court of Civil Appeals, and a remittitur of $2,700 if an appeal be to the Court of Civil Appeals but no application for the writ of error is filed with the Supreme Court, or a remittitur of $1,350 if an application for the writ is filed with the Supreme Court but is not granted.

      . The voucher attached to each check contained the code with “01” indicating payment for “Income for loss of time-accident” while code “02" was designated as a payment "Income for loss of time-sickness.”

      . “We are enclosing a benefit check in the amount of $1,000.00 for the benefit period January 16, 1977 to February 15, 1977, which represents the maximum and final benefit for the aforementioned disability.
      “If we can be of further assistance to you, please do not hesitate to contact us.”

      . This instruction accompanied the issue: “You are instructed that repudiation consists of such words or actions by a contracting party as indicate that such party is not going to perform its contract in the future.”
      Obviously, this instruction, which comes to us without criticism, was extracted from Continental Casualty Co. v. Boerger, 389 S.W.2d 566, 568 (Tex.Civ.App. — Waco 1965, writ dism’d).

      . SPECIAL ISSUE NO. 10

      “Do you find from a preponderance of the evidence that the action of defendant in indicating on the benefit checks at first that such payments were for accident disability and then later that such payments were for sickness disability, constituted false and misleading representations as to the benefits provided by the policy?
      “Answer: We do.”

        SPECIAL ISSUE NO. 11

      “Do you find from a preponderance of the evidence that the action of defendant in indicating on the benefit checks at first that such payments were for accident disability and then later that such payments were for sickness disability, constituted unconscionable conduct?
      “Answer: We do.”
      “You are instructed that the term ‘unconscionable conduct’ means such conduct as is shocking to the conscience.”

      . It is noted that while agreeing in part with the Court of Civil Appeals, the Supreme Court did not disagree with the remainder of the opinion as it sometimes does. See, e. g., L.L.S. v. State of Texas, 569 S.W.2d 495 (Tex.1978). Nor, did the Court withhold its approval of the language used by the intermediate court. See, e. g., In re Martin A. Johnson, Official Court Reporter, 569 S.W.2d 882 (Tex.1978).

      . Even if we were to agree with plaintiff’s contention that defendant’s contractual breach constituted a deceptive trade practice, a contention which we have rejected, the court would have erred in trebling the penalty award and attorney’s fees, thereby treating such sums as if they were actual losses or damages.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    NAVARRO AUTO-PARK, INC., Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 16137.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 1, 1978.
    Rehearing Denied Dec. 6, 1978.

      Harvey L. Hardy, San Antonio, for appellant.
    Crawford B. Reeder, Asst. City Atty., San Antonio, for appellees.
   MURRAY, Justice.

This is an appeal of an order of the 45th District Court of Bexar County, Texas, denying an application for temporary injunction.

Appellant, Navarro Auto-Park, Inc., sued appellees, City of San Antonio, for declaratory and injunctive relief seeking to have an issuance of certificates of obligation by appellees for the purpose of building and operating an off-street parking garage declared illegal and enjoined. Unless the ap-pellees are enjoined, they will build and operate an off-street parking garage, and certificates of obligation issued pursuant to Article 2368a.l, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1978), will be used to finance this project.

The sole question is whether the trial court abused its discretion in refusing to grant the temporary injunction. Holbrook v. City of El Paso, 377 S.W.2d 669 (Tex.Civ.App.—El Paso 1964, writ ref’d n. r. e.); Texas Foundries, Inc. v. International Moulders and Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952). In Texas Foundries, Inc., our Supreme Court held that:

The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.

248 S.W.2d at 462.

The scope of inquiry of an appellate court in reviewing matters involving the granting of a temporary injunction is the same as in reviewing matters involving the refusal of a temporary injunction. It is well settled that an abuse of discretion must be shown. Harding v. W. L. Pearson & Co., 48 S.W.2d 964 (Tex.Com.App.1932, judgmt. adopted). We agree with appellant that as a taxpayer it has a right to bring this suit to enjoin the illegal expenditure of public funds. Hachar v. County of Webb, 563 S.W.2d 693 (Tex.Civ.App.—San Antonio 1978, writ ref’d n. r. e.). We disagree with appellant that the trial court abused its discretion in denying the temporary injunction.

Appellant argues that he is entitled to a temporary injunction for two reasons: (1) Article 1269j-4.8 Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1978), limits the financing by appellees, of off-street parking garages to revenue bonds only; and (2) the certificates of obligation and the public notices and orders with respect thereto completely omitted any statement of the construction of rental shopping space on the ground floor of the garage which was one of the purposes for which they were being issued.

The authority of the City of San Antonio to build and maintain an off-street parking garage is well established. Zachry v. City of San Antonio, 296 S.W.2d 299 (Tex.Civ.App.—San Antonio 1956), affirmed, 157 Tex. 551, 305 S.W.2d 558 (1957). In Zachry v. City of San Antonio, the court held that, “A city possesses powers not denied by statute or constitution so long as the city has incorporated those powers in its charter. . If such power exists, it must be found within these provisions of the Charter . . ” Id. at 301. The court then quoted provisions from the charter of City of San Antonio which are identical to the provisions that exist today. In concluding, the court stated that “the City had the power to provide off-street parking facilities under its Charter.” Id. at 303.

Appellant argues that Article 1269j — 4.8 acts as a limitation on the mode of financing construction of city-owned parking garages through revenue bonds. We disagree.

Section 3(a) of Article 2368a.l authorizes a city to issue certificates of obligation for the purpose of paying any contractual obligations to be incurred for the construction of any public work. A city-owned off-street parking garage is a public work. Amstater v. Andreas, 273 S.W.2d 95 (Tex. Civ.App.—El Paso 1954, writ ref’d n. r. e.).

Article 1269j-4.8 provides in part:

Section 1. This Act applies to any city with a population of more than 650,000 according to the last preceding federal census.
Sec. 2. A city subject to this Act may acquire, lease as lessor or lessee, construct, improve, enlarge, and operate off-street parking facilities. The city may contract with any public or private entity for the performance of any function authorized under this section.
Sec. 3. For any purpose authorized under Section 2 of this Act, the governing body of the city may issue revenue bonds from time to time in one or more series to be payable from and secured by liens on all or part of the revenue derived from a facility authorized under this Act.
Sec. 11. This Act is cumulative of all other law on the subject, but this Act shall be wholly sufficient authority within itself for the issuance of the bonds and the performance of the other acts and procedures authorized by it without reference to any other law or any restrictions or limitations contained therein, except as herein specifically provided. When any bonds are issued under this Act, then to the extent of any conflict or inconsistency between any provisions of this Act and any provision of any other law, the provisions of this Act shall prevail and control. A city shall have the right to use the provisions of any other laws, not in conflict with the provisions of this Act, to the extent convenient or necessary to carry out any power or authority, express or implied, granted by this Act.

Prior to Article 1269j-4.8, appellees already had explicit charter authority to issue revenue bonds to build public improvements. Article 1269j — 4.8 provides the procedure to be followed in issuing revenue bonds for the purpose of building off-street parking. In a sense, it is a legislative limitation on the authority of certain cities to issue revenue bonds for the purpose of acquiring off-street parking facilities. However, section 11 of the Act states, “This Act is cumulative of all other laws on the subject . . . ” It is apparent from section 11 that the Act is not exclusive authority for appellees to obtain off-street parking facilities.

The construction urged by appellant would be against the specific language used in the Act. We believe that if the legislature had intended to limit appellees’ authority to build off-street parking to revenue bonds, it would have said so and would not have left the matter entirely to implication. 53 Tex.Jur.2d Statutes, § 181 (1964).

The appellant next complains of the action of the trial court in denying his temporary injunction because the notice required by Section 8(b) of Article 2368a.l failed to state one of the purposes of the project which is the construction of rental shopping space on the ground floor of the garage. Section 8(b) provides in part that: “[N]o certificates, irrespective of their sources of payment, may be authorized under Section 9 of this Act until the issuer has caused notice of its intention to issue such certificates to be published in a newspaper . Such notice shall (i) state . . . the purpose thereof . . . ” The notice given by appellees in this case was for the purpose of “constructing off-street parking facilities.” It is undisputed that the appel-lees plan to lease to retail merchants that part of the ground floor not utilized by ramps and driveways.

Since the only relief sought on final trial by appellant is injunctive, the applicant must show a probable right on final hearing to a permanent injunction. Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex.1968). On appeal, the evidence must be construed as sustaining the action of the trial court in granting or refusing a temporary injunction unless such evidence was of the character to compel a contrary conclusion from that on which the trial court presumably acted. International Ass’n of Machinists Lodge 1488 v. Downtown Employees Ass’n, 204 S.W.2d 685 (Tex.Civ.App.—Galveston 1947, writ ref’d n. r. e.).

Viewing the evidence from this standpoint, we must presume the trial court found that appellant failed to prove that the use of the ground floor for retail shops was not incidental to the main use of the structure as an off-street parking garage. The burden was clearly upon appellant to prove that the use of the ground floor for retail shops was not an incidental use. Therefore, appellant’s statement that appel-lees failed to prove how many stories the structure would contain is without merit.

We hold that under the record of this case the trial court did not abuse its discretion in refusing to grant the temporary injunction.

The judgment of the trial court is affirmed.


author: COULSON, Justice.

text:
    Ex parte William Richard SWEARINGEN, Relator.
    No. 2000.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 1, 1978.
    Rehearing Denied Nov. 22, 1978.

      L. A. Greene, Jr., Houston, for relator.
    Earle S. Lilly, Houston, for respondent.
   COULSON, Justice.

This is an original proceeding for habeas corpus instituted by William Richard Swearingen, the relator, who contends that he was illegally deprived of his liberty by an order holding him in contempt of court for failure to make child support payments. Relator raises two points of error. Relator primarily raises the question of whether an order of contempt for failure to make child support payments can validly be issued during the time in which an appeal is pending from the judgment of divorce which ordered such payments to be made. Relator further contends that the trial court erred in holding him in contempt because the evidence did not establish his ability to pay the child support. We find that the contempt order was valid and remand Relator to the custody of the Sheriff of Harris County.

On May 9, 1978, a decree of divorce was entered dissolving the marriage of Relator and Mary Carroll Swearingen. Under the terms of the divorce decree Mary Carroll Swearingen was appointed managing conservator of the two minor children and Relator was named possessory conservator and was ordered to pay $450.00 per month as child support. On August 24, 1978, following a hearing on August 8, 1978, an order was entered finding Relator in contempt of court for wilfully disobeying the order of May 9, 1978, to pay child support in the total amount of $1800.00. He was ordered held in custody for a period of thirty days and thereafter until he purged the contempt by payment of the $1800.00 plus costs and $350.00 in attorney’s fees.

Relator commenced his appeal from the divorce judgment by filing an appeal bond with the District Clerk on August 7, 1978, and filing the Transcript and Statement of Facts with the First Court of Civil Appeals on September 6,1978. He contends that his commitment pursuant to the order of contempt is illegal because, due to the pending appeal, the judgment of divorce sought to be enforced by the contempt has not “become final as provided by the Texas Rules of Civil Procedure” under this court’s holding in Ex Parte Valdez, 521 S.W.2d 724 (Tex.Civ.App. — Houston [14th Dist.] 1975, no writ). We do not find Valdez controlling.

In Valdez the relator was ordered by a divorce decree orally made on July 26,1974, but not signed and entered until December 30, 1974, to vacate certain real property by the 31st day of January, 1975. The relator timely filed a motion for new trial on January 9, 1975, which was not overruled until February 24, 1975. However, on February 5, 1975, the trial court held the relator in contempt for refusing to obey the order of December 30 to vacate the premises. The disposition of the Valdez case was grounded on Rule 329b, Tex.R.Civ.P., which provides that judgments of district and county courts “shall become final after the expiration of thirty (30) days after the date of judgment or after a motion for new trial is overruled . . . .” In Valdez the order of contempt was entered on February 5, nineteen days prior to February 24, the date on which the judgment of divorce became final pursuant to Rule 329b by virtue of the overruling of the motion for new trial. We there held that a judgment is not enforceable by contempt until it has become final “as provided by the Texas Rules of Civil Procedure.” Ex Parte Valdez, supra, at 727. In the context of that case the quoted phrase clearly refers to the finality of judgments as provided in Rule 329b.

The situation presented here is quite different. Relator’s motion for new trial was overruled, and judgment of divorce thereby became final under Rule 329b, on July 8, 1978. The contempt order was issued on August 8 and signed and entered on August 24, clearly after the original judgment had become final. Valdez therefore is not in point.

Relator contends, however, that the judgment of divorce was not “final” because there was an appeal pending at the time the order of contempt was entered, and that therefore the contempt and his commitment are void. We do not agree. The case is controlled by Tex.Family Code Ann. § 11.19(c) (Supp.1978). This section relates to appeals from suits affecting the parent-child relationship, which includes suits concerning support of a child. Tex. Family Code Ann. § 11.01(5) (1975). Section 11.19(c) provides:

An appeal from an order, judgment, or decree, with or without a supersedeas bond, does not suspend the order, decree, or judgment unless suspension is ordered by the court entering the order, decree, or judgment. The appellate court, on a proper showing, may permit the order, decree, or judgment to be suspended.

Relator does not contend that the trial court ordered a suspension of the judgment of divorce pending appeal, nor does he ask that the appellate court suspend such order. We find therefore, no suspension order being in effect, that the portions of the divorce decree ordering relator to pay child support remain in effect pending appeal, and violation thereof may properly be enforced by an order of contempt.

In his other point of error Relator claims that the trial court erred in holding him in contempt because no evidence was introduced to establish his ability to pay the child support and that therefore the evidence does not support a finding that he had the ability to pay and refused to do so. No statement of facts has been presented to this court. However at argument Respondent stipulated that she did not offer any evidence to prove that Relator had the ability to make such payments. This stipulation makes it unnecessary to consider a statement of facts in order to determine this point. Relator apparently contends that the burden was upon Respondent to prove Relator had the ability to pay in order for issuance of a valid contempt order enforcing payment of child support. We do not agree. Evidence that payments are in arrears is prima facie proof of contempt. Whatley v. Whatley, 493 S.W.2d 299, 303 (Tex.Civ.App. — Dallas 1973, no writ). Relator is morally and legally obligated to support his children, and while he could not be imprisoned if he is involuntarily unable to perform, the burden is upon him to show that inability. Ex Parte Padfield, 154 Tex. 253, 276 S.W.2d 247, 251 (1955). Relator’s counsel indicated at argument that he had objected to the judge’s questioning Relator as to his ability to make the payments, which objection was sustained. Thus Relator made no effort to introduce evidence of an inability to pay. This is by nature a defensive matter and the burden should be on Relator. It would place an intolerable burden on a mother responsible for the care of two minor children to require her to establish anew the father’s ability to pay every time she seeks the aid of the court to collect a payment past due. Whatley v. Whatley, supra. This point of error is also overruled.

Accordingly, the Relator is remanded to custody of the Sheriff of Harris County, Texas.


author: CIRE, Justice.

text:
    Julian GARCIA, Appellant, v. Sue Ann FLYNT, Appellee.
    No. 1840.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 1, 1978.
    Rehearing Denied Nov. 29, 1978.

      Milton Schwartz, Schwartz, Judice, Farrell, Laviage & Williams, Houston, for appellant.
    Fred Riepen, Houston, for appellee.
   CIRE, Justice.

Appellant, Julian Garcia, appeals from a county court at law decision awarding judgment to appellee, Sue Ann Flynt, in the amount of $6,242.40 plus interest for breach of contract. This amount represented delinquent payments due appellee under a property settlement agreement.

Appellant and appellee were divorced on November 3, 1972. Previous to this the parties had negotiated a property settlement agreement which the court granting the divorce approved and incorporated into the decree. The settlement provided, in part, that appellant would make certain cash payments to appellee, to wit:

$111.15 per month for thirty-six months as contractual alimony;
$124.00 per month as contractual alimony until the balance owing on parties’ residence (which was awarded to appellee) was paid in full.

Appellant made twenty payments of each sum, then ceased making them when he learned of appellee’s remarriage. Appellee sued for the remaining sixteen payments at $111.15 each and the $124.00 payments accrued through August 1976 for a total of $4878.40. A trial amendment increased this amount to $6242.40 by including the $124.00 per month payments accrued through the end of trial.

Appellant’s defense consisted of a claim that appellee had fraudulently stated to him during the settlement negotiations that in the event of her remarriage she would not require him to make further payments. Appellant’s testimony to this effect was excluded by the trial judge as not raising an issue of fact. At the close of the testimony the judge ruled that there were no material issues of fact and granted a directed verdict for appellee for $6242.40 plus interest.

Appellant first assigns as error the following actions of the trial court:

1. Retaining jurisdiction after the trial amendment increased the amount in controversy above the jurisdictional maximum of the court;

2. Rendering a judgment in excess of the jurisdictional maximum of the court.

The maximum amount in controversy that will confer jurisdiction on a county court at law is $5,000. Tex.Rev.Civ.Stat. Ann. art. 1970a. Once jurisdiction has properly attached by way of a pleading which comes within the jurisdictional limits, no subsequent event will defeat it. This includes an amendment raising or lowering the amount in controversy. Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (Tex.Comm. of App.1924, opinion adopted); Haginas v. Malbis Memorial Foundation, 168 Tex. 274, 354 S.W.2d 368 (1962). Accordingly the county court had the power to entertain the suit after the trial amendment raised the amount in controversy over the maximum jurisdictional limit.

It was not, however, within the court’s jurisdiction to enter a judgment in excess of the jurisdictional amount. As this court held in Williams v. Le Garage De La Paix, 562 S.W.2d 534, 536 (Tex.Civ.App.—Houston [14th Dist.] 1978, writ ref’d n. r. e.), “[T]he only cases in which a court can . enter judgments in excess of their jurisdictional limits are Texas Rule of Civil Procedure 752 situations or similar cases where the court has jurisdiction of the main suit, and that part of the suit which ordinarily would be without the court’s jurisdiction is but ancillary to the main cause of action.”

Appellant cites the Isbell case for the proposition that once jurisdiction attaches on the previous pleading the court has the power to enter judgment in excess of the jurisdictional amount. Isbell, however, was a sequestration case and the Commission there held that “the county court, by reason of the sequestration proceeding, and, more especially, of the replevy bond given in that proceeding, was authorized ... to render a judgment exceeding $1,000 in amount.” 261 S.W. at 764. The holding that “judgment in such a case may exceed the ordinary limit of the jurisdiction” was limited to the ancillary proceeding involved there, id.

Accordingly we hold that the county court at law was without jurisdiction to render a judgment in excess of its jurisdictional maximum, and reverse and remand this case for further proceedings consistent with this opinion.

In its remaining point of error appellant complains of the action of the trial court in withdrawing the case from the jury and rendering a directed verdict for appel-lee. According to appellant, when the evidence raises an issue of fraud, a question of fact is presented for the jury.

All of appellant’s testimony concerning alleged fraudulent misrepresentation made by appellee was excluded by the trial judge as not raising a fact issue. Appellant does not assign as error the exclusion of this testimony. As a result the record in this case is devoid of any evidence that would raise a fact question on the issue of fraud. A directed verdict is proper when there is no fact issue raised by the evidence. Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786 (1938). Accordingly we hold that it was not error for the trial judge to withdraw this case from the jury and render a directed verdict.

In view of the probable retrial of this case, we consider it proper to comment on appellant’s allegations that he was fraudulently induced to enter into the settlement agreement. The Texas Supreme Court has held that a mere representation that the obligor of a contract will not be held liable by the obligee does not constitute fraud in the inducement so as to be an exception to the parole evidence rule. Town North National Bank v. Broaddus, 569 S.W.2d 489 (Tex.Sup.1978).

Additionally, we do not feel that a husband can justifiably rely on an oral statement by the wife that she will not enforce an obligation in a property settlement agreement which is to be later reduced to writing and made a part of a final judgment. An essential element in proving a case of fraud is the right to rely on the representation. Bell v. Henson, 74 S.W.2d 455 (Tex.Civ.App. — Waco 1934, writ dism’d.). Therefore, since the testimony presented by the appellant was insufficient to raise the issue of fraud, it was not error for the trial court to exclude such evidence.

Reversed and remanded.


text:
    David W. MADDEN, Individually and d/b/a Century Marketing Corporation, Appellants, v. HARLANDALE BANK, Appellee.
    No. 8160.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 2, 1978.
    Rehearing Denied Nov. 30, 1978.
    Richard E. Langlois, R. Emmett Cater, San Antonio, for appellants.
    Dennis K. Drake, San Antonio, for appel-lee.
   KEITH, Justice.

Plaintiffs below appeal from a summary judgment which denied a recovery of the statutory penalties for the charging of unearned interest upon a loan made by the defendant bank. Our facts are undisputed and the parties disagree only on the law question. We affirm.

In October, 1975, Harlandale Bank made an installment loan to Ralph G. Colwell in the principal amount of $15,830.79 with an interest charge of $3,799.29 payable in forty-eight monthly installments of $408.96, the first of such installments being due on November 30, 1975, with the final payment due on October 30, 1979. Plaintiff in this cause, David W. Madden, individually and as President of Century Marketing Corporation, unconditionally guaranteed Colwell’s debt. The loan went into default and the bank accelerated the maturity in April, 1976, and demanded payment.

When its demand for payment was ignored, the bank sued Colwell, Madden and Century Marketing Corporation. Although properly served with process, Madden and Century defaulted and an interlocutory judgment was entered which was merged into a judgment against all three defendants, including Colwell. This judgment included not only the debt, but unearned interest and attorneys’ fees, and it became final without any effort having been made to set it aside.

Thereafter, the bank brought a garnishment proceeding in an effort to collect its final judgment but our record is silent as to the results of that action. It was after the filing of the garnishment proceeding that Madden and Century Marketing brought this new and independent suit against bank seeking recovery of statutory penalties under Tex.Rev.Civ.Stat.Ann. art. 5069 — 8.01 and 8.02 (1967), contending the bank charged for the unearned and usurious interest in the original suit. See and compare General Motors Acceptance Corp. v. Uresti, 553 S.W.2d 660, 662-663 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.).

Both parties filed motions for summary judgment and that of bank was granted upon the basic proposition that the cause of action now asserted was a compulsory counterclaim under Tex.R.Civ.P. 97(a) in the earlier suit. Since the determination of this question is dispositive of the litigation, we now give our reasons for affirming the judgment of the trial court.

Plaintiffs rely upon several cases decided under the prior law governing usurious transactions. The law was significantly different from the law governing this suit. Art. 5071 (1925) provided a defense only as to the interest in a usurious contract, holding only such part of the contract to be void and of no force and effect. Alternatively, Art. 5073 (1925) gave a right of affirmative relief of double the amount of interest collected by an “action of debt” and then only for the amount of usurious interest actually “received or collected.”

The controlling statutes, as set out in Art. 5069 — 8.01 and 8.02 (adopted 1967), speaks to a forfeiture and provides that such forfeiture shall occur upon a charging. Thus, we are of the opinion that the earlier decisions under the statutes antedating 1967 are not controlling in litigation arising under the later statutes.

Under the 1967 statute, the bank charged the usurious interest at the time it filed the original suit. Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209, 212 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.) See also Comment, 54 Texas L.Rev. 652 (1976).

Plaintiffs rely heavily upon language found in Wall v. East Texas Teachers Credit Union, 526 S.W.2d 148, 151 (Tex.Civ.App.—Texarkana 1975), reversed on other grounds, 533 S.W.2d 918 (Tex.1976), to the effect that Art. 5069 — 1.06 is “available to the borrower either as a defensive offset in an action on the note, or as an affirmative action to recover the penalty.” We do not disagree with this holding; but, we are unwilling to scuttle the doctrines of res judicata and compulsory counterclaims to reach the position sought by plaintiffs.

Instead, we confine the language quoted from Wall to the situation in which it was used: as an offset in the litigation on the note and as a counterclaim for the statutory penalty in the same suit. In so doing, our holding is consistent with the quoted language from Wall.

The doctrine of res judicata bars plaintiff’s action. As stated by then Justice Greenhill in Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971): “[A] party cannot relitigate matters which he might have interposed, but failed to do so, in an action between the same parties or their privies in reference to the same subject matter. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97 (1894).” See also Z. Steakley and W. Howell, Jr., “Ruminations on Res Judicata,” 28 Sw.L.J. 355, 368 (1974); ' and Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195, 198 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.), wherein Chief Justice Nye has collated most of the leading authorities on the subject.

Although plaintiffs rely, at least to some extent, upon language found in Griffin v. Holiday Inns of America, 496 S.W.2d 535, 538 (Tex.1973), we find such reliance to be misplaced. The Court went to great lengths to approve and reaffirm the holding in Gravis, supra, and held that since Griffin’s claim in quantum meruit arose out of the “transaction or occurrence that was the subject matter of the cross-action [of Holiday Inns], the quantum meruit claim was a compulsory counterclaim to the cross-action under the provisions of Rule 97, T.R.C.P.” (496 S.W.2d at 539).

All of plaintiffs’ present claims could and should have been asserted as a counterclaim in the original suit. The claims fit each of the “six elements” set out in 2 McDonald, Texas Civil Practice § 7.49, at 283-286 (1970 Rev. Vol.). See also Upjohn Co. v. Petro Chemicals Suppliers, Inc., 537 S.W.2d 337, 340 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.); Bohart v. First National Bank in Dallas, 536 S.W.2d 234 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.).

The first judgment, under the circumstances noted in this record, constituted res judicata of plaintiffs’ present claims. Griffin v. Holiday Inns, supra. The trial court’s action in granting defendant’s motion for summary judgment and denying that of plaintiffs was correct and such judgment is now AFFIRMED.

      . See, e. g., Weaver v. White, 164 S.W.2d 48 (Tex.Civ.App. — Dallas 1942, no writ); Employees Loan Co. v. Templeton, 109 S.W.2d 774 (Tex.Civ.App.—Fort Worth 1937, no writ), involving the earlier statutes, Arts. 5071 and 5073, R.C.S. (1925).

      . Defendant challenges the correctness of the holdings in the cases cited in footnote one, supra, contending that cases it cites [e. g., Jowell v. Billingsley, 66 S.W.2d 809 (Tex.Civ.App.—Waco 1933, no writ); and Dallas Trust & Savings Bank v. Brashear, 65 S.W.2d 288, 291 (Tex.Com.App.1933, judgment adopted)] with contrary holdings, represent the prevailing law under the earlier statutes.
      We avoid a determination of this question by holding the earlier decisions under dissimilar statutes are not applicable to the case at bar.

      . See Southwestern Investment Co. v. Mannix, 557 S.W.2d 755, 765 (Tex.1977), wherein the Court approved the holding in Moore but found it unnecessary to decide if it applied in the case then under consideration.

      . Wall involved Art. 5069 — 1.06 (adopted 1967), and the claim of usury was asserted in the original suit — not in a subsequent suit after the judgment in the original litigation had become final. Moreover, questions of res judica-ta and compulsory counterclaims did not enter into the decision in Wall at any level of the judicial hierarchy.


author: KLINGEMAN, Justice.

text:
    DEER VALLEY RANCH, INC., Appellant, v. Roy ADAIR and Lamar Savings Association, Appellees.
    No. 16190.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 3, 1978.
    Dodson, Harpole & Nunley, J. Ken Nun-ley, Uvalde, for appellant.

      H. Rit Jons, Law Office of James E. Nugent, Kerrville, for appellees.
   KLINGEMAN, Justice.

This is an appeal by Deer Valley Ranch, Inc., from an order of the 38th District Court of Uvalde County, Texas, denying its application for temporary injunction. In that application, appellant, the petitioner below, sought to enjoin appellees, Roy Adair and Lamar Savings Association, from conducting a deed of trust foreclosure sale on certain real property situated in Uvalde County, Texas. After a lengthy hearing the trial court entered its order denying such application, and appellant has perfected an appeal to this court. On October 11, 1978, we granted an injunction pursuant to the provisions of Article 1823, Texas Revised Civil Statutes, enjoining appellees from conducting a trustee’s sale until disposition by this court of appellant’s appeal in this cause.

Appellant asserts that the trial court erred in failing to grant its application for temporary injunction because (a) appellee failed to comply with requisite notice provisions prior to the attempted foreclosure; (b) there was no evidence that appellees had complied with the provisions in the deed of trust; (c) there is no competent evidence that appellees had complied with the terms of the note; and (d) appellants established all facts necessary to entitle it to an injunction.

Appellees urge that this appeal is without merit because (a) appellant wholly failed to meet the burden of proof imposed upon it in proceedings of the nature here involved; (b) the trial court did not abuse its discretion in denying the injunctive relief sought; and (c) this appeal is brought solely for the purpose of delay.

Appellant urges that since this is a case involving foreclosure of real property, it was incumbent upon it to prove only that it was the owner of the land in question. By proving ownership, appellant contends it established a prima facie case for an injunction in the trial court, and that the burden then shifted to the appellees, requiring them to go forward and show facts justifying a denial of injunction. We disagree. Appellant misplaces the burden of proof.

The Supreme Court of Texas, in Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961), held:

An applicant for a temporary injunction seeks extraordinary equitable relief. He seeks to immobilize the defendant from a course of conduct which it may well be his legal right to pursue. . . . The applicant has, and in equity and good conscience ought to have, the burden of offering some evidence which, under applicable rules of law, establishes a probable right of recovery. . . . If he cannot or does not discharge his burden he is not entitled to extraordinary relief. Writs of injunction should not issue on mere surmise.

Id. at 519.

Although the testimony is somewhat lengthy, a considerable portion of it is immaterial and irrelevant to any issue here involved. However, it is clear from the record that (a) the note involved is dated December 6, 1977, in the principal sum of $422,927.32 and is a demand note; (b) demand has been made for the payment of the note; (c) appellant was notified by letter dated June 14, 1978, that the note involved was past due and unpaid, that the note had been accelerated, and demand was made for the payment of unpaid principal, plus accrued interest in the amount of $26,-848.73; (d) no principal or interest payments were made on the note in 1978; (e) the 1977 property taxes on the property here involved have not been paid and there are unpaid taxes on the property in the amount of $5,207.80; (f) appellant’s president testified that he has been on notice for some time that the note would not be renewed but that he had made no written applications to refinance the note with anyone; and (g) proper notices of the trustee’s sale were posted, and appellant was timely notified thereof. Several notices were in fact filed as exhibits in this case.

Appellate review of an order granting or denying a temporary injunction is strictly limited to a determination of whether a trial court abused its discretion. Abramov v. Royal Dallas, Inc., 536 S.W.2d 388 (Tex.Civ.App.—Dallas 1976, no writ); General Telephone Co. of the Southwest v. Cities Littlefield, 498 S.W.2d 375 (Tex.Civ.App. — Amarillo 1973, writ ref’d n. r. e.); Holbrook v. City of El Paso, 377 S.W.2d 669 (Tex.Civ.App. — Amarillo 1964, writ ref’d n. r. e.). The sole question presented here is whether the trial court abused its discretion in refusing to grant the temporary injunction.

Our Supreme Court, in Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952), held:

The granting or refusing of a temporary injunction is subject to a very different character of appellate review from the granting or refusing of a permanent injunction. The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.

Id. at 242, 248 S.W.2d at 462.

Appellant wholly failed to meet its burden in the instant case. We hold that under the record in this case the trial court did not abuse its discretion in refusing to grant the temporary injunction.

The judgment of the trial court is affirmed. The temporary injunction issued by this court October 11, 1978, is dissolved.

      . It appears from the record that appellant previously filed in July 1978 a petition for temporary injunction in a Travis County district court to enjoin an attempted deed of trust foreclosure sale set for August 1978, and that a temporary restraining order was issued by that court which effectively postponed the August sale. Appellees again posted notices of a trustee’s sale for a foreclosure in September 1978, and appellant then filed the petition for temporary injunction here involved in the district court of Uvalde County, Texas, which ultimately resulted in this sale also being postponed by a temporary injunction issued by this court to protect its jurisdiction.


author: CADENA, Chief Justice.

text:
    John B. McMASTER, Appellant, v. Frances G. McMASTER, Appellee.
    No. 15960.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 8, 1978.
    Rehearing Denied Dec. 6, 1978.

      Foster, Lewis, Langley, Gardner & Ba-nack, Donald R. Taylor, San Antonio, for appellant.
    Oliver S. Heard, Jr., San Antonio, Thomas S. Goggan, Goggan & Cain, Austin, for appellee.
   OPINION

CADENA, Chief Justice.

This is a “no-fault” divorce case in which appellant, John B. McMaster, sought and obtained a divorce from appellee, Frances G. McMaster. Appellant will be referred to in this opinion as “husband,” while appellee will be designated as “wife.”

Husband appeals from that portion of the judgment dividing the community estate of the parties, providing for support of the minor child of the parties and ordering him to pay one-half of the fees of wife’s attorney and accountant.

The cause of husband’s displeasure with the division of the property is aptly expressed by wife in her brief as follows: “The effect of the Trial Court’s Order . is the award of the value of all of the assets to the wife and the assessment of all the liabilities against the husband.” This was accomplished by awarding to wife assets having a gross value of $138,250.00, and awarding to husband assets having a gross value of $132,228.00. Husband was then required to pay community debts, which totaled $96,644.00, and to pay to wife $132,-228.00, the gross value of the assets awarded to him.

In terms of specific assets, the court divided the property as follows:

In addition to the unpaid debts on the realty, totaling $93,744.00, husband was ordered to pay an indebtedness of $2,900.00 to Arthur Murray Dancing Studio, apparently for husband’s dancing lessons. Thus, the husband was ordered to pay the entire community indebtedness which totaled $96,-644.00.

Prior to the divorce, husband and wife owned interests in an estate having a gross value of $270,478.00. They had liabilities of $96,644.00, so that their net worth was $173,834.00. After the divorce, wife owned assets having a net value of $104,506.00, in addition to the judgment against her husband for $132,228.00, and, as between the parties, she had been relieved of personal liability for debts totaling $96,644.00. The husband, on the other hand, received title to assets having a net value of $72,228.00, but the judgment imposed on him liabilities totaling $246,372.00 ($96,644.00 in community debts, $132,228.00, which the judgment required that he pay to wife, and $17,500.00, representing the wife’s legal and accounting fees which he was ordered to pay). The result is that his liabilities exceed the net value of the assets awarded to him by $174,-144.00, and such liabilities exceed the gross value of the assets awarded to him by $114,-144.00. Assuming that prior to the divorce he had a one-half interest in an estate having a net value of $173,834.00, the effect of the division of the estate is to change his net worth from + $86,917.00 to -$159,-455.00.

The evidence in this case supports findings which would justify a markedly uneven distribution of the estate in favor of the wife. She dropped out of school when she was in the 11th grade and married husband when she was 17 years of age and he was 22. At the time of the marriage husband was in medical school, and since entering practice in the field of dermatology his taxable income has increased from $55,996.00 in 1971 to an estimated $134,-926.00 in 1977. Wife has a past history of emotional problems requiring professional help and has no significant work history. The testimony supports the conclusion that her future earning capacity „ is, at best, slight, and that her parents are in no position to aid her financially. At the time of the divorce she was about 42 years old.

There is nothing to indicate that the earning capacity of husband, who was 47 years old at the time of the divorce, will not continue to increase. Wife was awarded custody of the only child of the parties under age 18. This child has a history of emotional problems which have required, and will continue to require, expert professional help and extraordinary parental attention. This factor, of course, adversely affects wife’s ability to realize the full potential of her limited job skills. The three adult children of the marriage are still in school and, for all practical purposes, continue to make their home with wife.

On appeal from a judgment dividing the estate of the parties to a divorce, the only question is whether, under all the facts and circumstances of the case, the trial court abused its discretion to an extent which requires a reversal. Reversible abuse of discretion can be found only where it appears that the division is manifestly unjust and unfair. An unequal division does not, standing alone, establish that the division is unfair. An unequal division is justified if it is reasonable, considering the facts and circumstances. Although the courts agree that the trial court has broad discretion in decreeing the division of the estate, the language found in the opinions differs. However, it appears that the statement in Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ) correctly expresses the factors which an appellate court should consider in determining the fairness of the division. Clearly, such factors as the earning capacities and business opportunities of the parties, their physical condition and the need of each party for support are relevant. Since the decision in each case depends on the facts of the case, little is to be gained by comparison of the result in one case with the outcome in other cases.

The case which most nearly resembles the present case appears to be Clay v. Clay, 550 S.W.2d 730 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ). In that case, the community assets had a value of $278,-596.83. The wife was awarded her separate property and community property having a value of $55,840.00. The husband was awarded his separate estate, having a value of $1,157,000.00, and specific community assets valued at $222,756.00, but was required to pay the wife $50,000.00 m cash and execute a note payable to the wife in the sum of $150,000.00. The net effect of the division is that the wife received community assets worth $255,840.00, while the husband received $22,756.00 as his share of the community estate. The Court of Civil Appeals held that the record did not support the conclusion that the trial court had abused its discretion.

It is apparent that, despite the similarity in value of the marital estate in Clay and here, the position of the husband after the divorce in Clay was quite different from the position of the husband here. Mr. Clay had a separate estate valued at over one million dollars. The record before us in this case indicates that husband owned separate property valued at $500.00. In Clay, the husband’s assets after the divorce greatly exceeded his liabilities. Here, the husband’s liabilities after the divorce greatly exceed the value of his assets.

We conclude that the division of the community property in this case is so disproportionate as to be clearly inequitable and constitutes an abuse of discretion requiring reversal. Since questions relating to the obligations of the parties concerning child support and professional fees require consideration of the relative positions of the parties following the partition of the marital estate, no useful purpose could be served by reviewing the portions of the decree dealing with such matters.

The judgment of the trial court, insofar as it grants a divorce, is affirmed. The judgment, insofar as it deals with division of the property, child support and attorney’s fees and other professional fees is reversed and the cause is remanded to the trial court for retrial of such issues.


text:
    DEL MONTE CORPORATION, d/b/a Del Monte Foods, Inc., Appellant, v. Wallace W. MARTIN, Appellee.
    No. 15961.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 8, 1978.

      R. S. Crawford, Crawford, Crawford & Hughes, Uvalde, for appellant.
    Petry & Petry, Carrizo Springs, for appel-lee.
   CADENA, Chief Justice.

Defendant, Del Monte Corporation, d/b/a Del Monte Foods, Inc., appeals from a judgment based on a jury verdict awarding plaintiff, Wallace W. Martin, $11,130.00 actual damages plus $3,993.99 interest, as well as punitive damages of $20,000 for breach of contract.

Defendant, a canner of fruits and vegetables, and plaintiff, a farmer, entered into a written contract in September, 1970, which provided that plaintiff was to plant, cultivate, irrigate and harvest 50 acres of hybrid spinach. Defendant agreed to pay plaintiff $40.50 for each ton of “fancy grade” spinach. Plaintiff planted about 54 acres of spinach, but on February 24, 1971, defendant rejected the crop.

The jury found that (1) plaintiff substantially complied with the terms of the contract; (2) defendant breached the contract by refusing to accept defendant’s spinach crop; (3) 300 tons of spinach could have been harvested from plaintiff’s land between February 10, 1971, and February 24, 1971; (4) defendant acted “willfully, maliciously or capriciously” in refusing to accept plaintiff’s crop; and (5) plaintiff should recover $20,000 as punitive damages.

Defendant’s first seven points complain of the failure of the trial court to submit defendant’s seven requested special issues. The requested issues asked the jury to determine the following: (1) whether plaintiff’s crop was free from aphid infestation; (2) whether plaintiff’s crop was free from worm infestation; (3) whether plaintiff’s crop was free of frost damage; (4) whether plaintiff’s crop was free from spray residue; (5) whether plaintiff properly irrigated the spinach crop; (6) whether plaintiff’s crop, due to aphid infestation, worm infestation, frost damage, spray residue, or lack of proper irrigation, “or a combination of one or more thereof,” was usable by defendant on February 24, 1971, for canning as “fancy grade” spinach (this issue was to be answered only if one or more of the first five requested issues was answered in the negative, and it defined “fancy grade” spinach as “spinach of dark green color, having a firm texture, a crisp-like flavor, with a leaf/stem ratio of less than 15% stems, free of insects, free of insect damage, mildew, rot, and any foreign matter, free of chemical residue, and having an aphid count of less than thirty-five (35) aphids per one hundred grams of processed spinach.”); (7) whether plaintiff’s crop, for the reasons listed in requested issue 6, was usable for canning as “fancy grade” spinach (this issue was to be answered only if one or more of the first five requested issues were answered in the negative, and it contained the same definition of “fancy grade” spinach as that which accompanied requested issue 6). These requested issues, in effect, amounted to specific inquiries as to whether plaintiff had met his obligations under the contract. The question of plaintiff’s compliance was broadly submitted by Special Issue 1 of the court’s charge, and there was no need to submit seven additional inquiries concerning the same basic question. Where the controlling issue has been fairly submitted, the failure to submit other and various shades of the same issue is not error. Tex.R.Civ.P. 279 (1977); 3 R. McDonald, Texas Civil Practice § 12.06.1 at 282 (rev. 1970).

Point 8 assigns as error the submission of Special Issue 1 over defendant’s objection. This issue inquired whether plaintiff “substantially complied” with the terms of the contract and was followed by a definition of substantial compliance. Defendant objected to such issue on the grounds that (1) plaintiff’s pleadings did not rely on the doctrine of substantial compliance; (2) the contract specifically required plaintiff to furnish fancy grade spinach, and “there is a multitude of evidence” that plaintiff did not comply with such requirement; and (3) the issue did not contain a definition of “fancy grade spinach.” Objections (2) and (3) were not brought forward in defendant’s brief. Substantial compliance with the requirements of a contract is the legal equivalent of full compliance. Telles v. Vasconcelos, 417 S.W.2d 491, 494 (Tex.Civ.App. — El Paso 1967, writ ref’d n. r. e.). Therefore, a pleading of full performance will support the submission of an issue on substantial performance. While the contract required plaintiff to grow “fancy grade” spinach, the evidence established that it would be impossible to grow spinach that would meet the requirements embodied in the contractual definition of “fancy grade.” In CrawfordStrauss Properties, Inc. v. Doolittle, 540 S.W.2d 334, 338 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.), this Court, while questioning the precedential value of Cotherman v. Oriental Oil Co., 272 S.W. 616 (Tex.Civ.App.—Amarillo 1925, no writ), referred to the inequity of requiring complete adherence to the letter of the contract and the excuse for deviation from the literal requirements of the contract.

In its brief defendant asserts that Issue No. 1 calls on the jury to construe the contract, amounts to a global submission, and is too general, duplicitous and multifarious. These objections were not made in the trial court and cannot be considered here. Defendant also contends that the trial court erred in failing to disregard the jury’s answer to Special Issues 1 and 2 because the evidence was insufficient to establish that plaintiff substantially complied with the contract and that defendant breached it. Defendant’s contention cannot be sustained. A jury’s answer to a special issue may be disregarded only when it has no support in the evidence or when the issue is immaterial. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); Tex.R.Civ.P. 301 (1977).

Defendant’s remaining points complain of the award of exemplary damages. We have carefully reviewed the evidence and agree that there is no evidence to support the finding that defendant or its agents and employees acted willfully, maliciously or capriciously in rejecting plaintiff’s crop.

The judgment of the trial court is modified to delete the award of $20,000 as punitive damages to plaintiff. As so modified, the judgment of the trial court is affirmed.

Each party shall pay one-half of the costs of this appeal.


text:
    CHURCH’S FRIED CHICKEN, INC., Appellant, v. JIM DANDY FAST FOODS, INC., Appellee.
    No. 1957.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 8, 1978.
    Hugh Rice Kelly, Robert J. Malinak, Richard S. Siluk, David M. Lacey, Baker & Botts, Houston, Robert W. Alexander, McLeod, Alexander, Powel & Apffel, Galveston, for appellant.
    Preston Shirley, Mills, Shirley, McMicken & Eckel, Galveston, John L. Murchison, Vinson & Elkins, Houston, for appellee.
   CIRE, Justice.

This is an appeal from a denial of a plea of privilege. Appellant Church’s Fried Chicken, Inc. is a Texas corporation headquartered in San Antonio, Bexar County. Appellee Jim Dandy Fast Foods, Inc. brought this declaratory judgment suit to interpret a contract executed in 1966 by the predecessors of the two parties. We affirm the trial court’s ruling.

The contract in question gave Jim Dandy the right to do business as “Church’s Fried Chicken” in an area delineated as follows:

All that territory within a radius of fifty (50) miles of the City Hall of the City of Houston, Texas, and all territory included in the City Limits of the City of Galveston, Texas.

A dispute over the duration of this right resulted in Jim Dandy’s seeking a declaratory judgment to interpret this aspect of the contract.

The suit was instituted in Galveston County. Church’s filed a plea of privilege to be sued in Bexar County. The plea was controverted by Jim Dandy on a number of grounds; however, all grounds other than section 5(a) of Article 1995 were eliminated by stipulation of the parties after the trial judge indicated that he would rule in favor of appellee based on that section. As a result we are concerned on this appeal only with section 5(a).

Article 1995, section 5(a), Tex.Rev.Civ. Stat.Ann., states:

5. Contract in writing. — (a) ... if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile, (emphasis added).

Venue under this section is determined not by the place where the plaintiff is to perform, but by the place where the contractual obligation sued upon requires the defendant to perform. LeFors v. Finkner, 448 S.W.2d 574 (Tex.Civ.App.—Tyler 1969, no writ).

In its first point of error appellant contends that Church’s did not contract to perform an obligation in Galveston County. According to appellant, the language of the contract, specifically the use of the present tense (“Church’s has and . . . does grant . . . .”) indicates that the granting, and hence Church’s obligation, was completed at the time of the signing of the contract. Accordingly, appellant argues, the grant was not a pending obligation performable in Galveston County.

Appellant has incorrectly analyzed the nature of the transaction. This was not an accomplished sale of the Church’s trademark. On the contrary, Church’s has a continuing obligation to allow Jim Dandy the undisturbed use of the mark for the duration of the contract. At the termination of the contract its obligation will cease. If Church’s now were to withdraw the right to use the name it would be breaching an ongoing and current obligation owed to Jim Dandy. For this reason it cannot be said that Church’s obligation was completed at the time the contract was signed.

Further, Church’s contracted to allow the use of the trade mark in Galveston County. It follows that Church’s owes an obligation to Jim Dandy which by its express terms is performable in Galveston County. Accordingly appellant’s first point of error is overruled.

In its second point of error appellant argues that section 5(a) is intended to cover only those situations wherein performance of the contract is possible in a single expressly named county. Thus appellant contends that since the contract in question is to be performed in an area involving twelve counties, section 5(a) has no applicability to this case. We do not agree.

The El Paso Court of Civil Appeals faced a similar argument in Hydrostatic Engineers v. Rapid Service, 439 S.W.2d 866 (Tex.Civ.App. — El Paso 1969, writ dism’d). There appellee received a franchise to use certain equipment in a territory covering most of West Texas and eastern New Mexico. Suit was brought on the contract in Ector County, which was included in this area. In upholding the trial court’s denial of the plea of privilege the appellate court stated:

[T]he test of the applicability of subdivision 5 is whether by the writings between them, the one sought to be charged has plainly agreed to perform in the particular county of the suit. Here, it is clear that appellant had agreed to perform in this particular county, along with the others.

439 S.W.2d at 867.

The contract in the instant case gave appellee the exclusive right to use the name “Church’s Fried Chicken” in a specifically defined area, including “all territory included in the City Limits of the City of Galveston, Texas.” A definite place in Galveston County was thus expressly stated in the written contract as a place of performance of the obligation, Tyson v. Seaport Grain, 388 S.W.2d 731 (Tex.Civ.App.—Corpus Christi 1965, writ dism’d), and accordingly venue is proper in such county under section 5(a).

Appellee cites a number of cases in support of its position that a single county is contemplated by the statute. Great Western Loan and Trust Co. v. Montgomery, 376 S.W.2d 92 (Tex.Civ.App.—Austin 1964, writ dism’d); Albin v. Hughes, 304 S.W.2d 371 (Tex.Civ.App.—Dallas 1957, no writ); Southwestern Investment Co. v. Shipley, 400 S.W.2d 304 (Tex.Sup.1966). These cases are not controlling here, since each dealt with a single obligation performable in one of two or more alternative locations at the option of one party. It was this optional feature which rendered the place of performance uncertain. We have no such situation before us. The parties entered into a written contract, the terms of which required appellant to perform in Galveston County. There is no uncertainty that performance is to occur in such county. Appellant’s second point of error is overruled.

Affirmed.


author: MOORE, Justice.

text:
    Noe DIAZ and Alice Diaz, Appellants, v. Frank DEAVERS, Appellee.
    No. 1175.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 9, 1978.
    Rehearing Denied Dec. 14, 1978.

      Jack Ritter, Jr., Austin, for appellants.
    Roy Q. Minton, John C. Augustine, Min-ton, Burton & Fitzgerald, Austin, for appel-lee.
   MOORE, Justice.

This is a suit for damages for personal injuries resulting from an assault. Appellant, Noe Diaz instituted suit against appel-lee, Frank Deavers, alleging he suffered personal injuries to his left jaw bone and face when Deavers struck him with a wrench. Appellee answered with a general denial and affirmatively alleged that Diaz provoked the difficulty and that at the time he struck Diaz, he was acting in self-defense. In response to the following numbered special issues the jury found that (1) Deavers committed an assault and battery on Diaz; (2) Diaz’s injuries were the direct and natural result of the assault and battery; (3) that in striking Diaz appellee was acting in self-defense; (4) that the conduct of Diaz would provoke a reasonably prudent man to commit an assault and battery; (5) that the damages suffered by his injuries were “nothing”; (6) that Deavers was not actuated by malice in striking Diaz. Pursuant to the verdict the trial court entered a “take nothing” judgment against appellant Noe Diaz. Subsequent to the entry of judgment, appellant filed a motion captioned “MOTION FOR JUDGMENT N.O.V., OR FOR NEW TRIAL.” After the motions had been overruled, appellant perfected this appeal.

We affirm.

Under his first point appellant asserts that the trial court erred in refusing to submit his requested instruction explaining the meaning of the term “self-defense” as used in Special Issue No. 3 inquiring as to whether Deavers acted in self-defense. Appellant argues that his instruction was substantially correct while that submitted by the trial court was erroneous. In reply, appellee says that appellant waived any right to complain of the action of the court in refusing the requested instruction because appellant failed to assign such refusal as a point of error in his motion for new trial. We agree with the position taken by appellee. Accordingly, appellants’ first point is overruled.

Since this case was tried before January 1,1978, the question of whether appellant properly preserved his right to complain of the alleged error must be determined on the basis of the Rules of Civil Procedure as they existed before that date. Prior to January 1, 1978, Rule 324, Tex.R. Civ.P., provides as follows:

“In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for judgment on the verdict made by the party who becomes appellant

Prior to January 1,1978, Rule 374, Tex.R. Civ.P., provided:

“The motion for new trial, when required to be filed under these rules, shall constitute the assignments of error on appeal or writ of error. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived. . . . ”

Thus appellant was obligated to file a motion for new trial distinctly setting forth each error complained of.

After judgment had been entered, appellants filed a motion captioned “MOTION FOR JUDGMENT N.O.V., OR FOR NEW TRIAL.” Both motions appear to have been incorporated in one instrument. The initial paragraph of the instrument reads as follows:

“NOE and ALICE DIAZ, Plaintiffs, respectfully move the Court under Rule 301, T.R.C.P., to disregard the findings of the Jury or [sic] Special Issues Numbers 3, 4, and 5, and to render judgment for Plaintiff NOE DIAZ for $11,627. As reasons for their request Plaintiffs would show:”
(Here follows allegations alleging that the jury’s findings to Special Issues 3, 4, and 5 are not supported by any evidence and that such findings are against the overwhelming weight and preponderance of the evidence.)

Then follows the prayer which reads as follows:

“WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Court disregard the jury’s answers to these three Special Issues and render judgment for Plaintiff NOE DIAZ for $11,627 and for costs of Court, together with interest at 9% from date of judgment until fully paid, and for execution if not timely paid.”
The instrument next recites:
“ALTERNATE PLEA
“In the unlikely event that the Court should decline Plaintiffs’ prayer, above, then Plaintiffs move the Court to set aside the verdict returned by the jury and grant a new trial in another County. Plaintiffs say in support of such motion that the jury’s verdict is manifest evidence of such bias, prejudice and partiallity [sic] in Bastrop County in favor of TIP DEA VERS and/or against Plaintiffs that a fair and impartial trial can not be obtain [sic] there, and/or that there exists in such County a combination against Plaintiffs instigated by infuential [sic] persons by reason of which Plaintiffs cannot expect a fair and impartial trial.
“WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the jury’s verdict be in all things set aside, that a mistrial be declared, that a new trial be granted, and that venue be transferred to Travis County, Texas, or another County convenient to the parties, the witnesses and attorneys, where the Court believes a fair trial may be had.
“SECOND ALTERNATE PLEA
“In the even more unlikely event that the Court should not see fit to grant either form of relief requested above, then .Plaintiffs respectfully move the Court to set aside the verdict of the jury and grant a new trial in Bastrop County.”

By the wording of the foregoing instrument, it is clear that the portion of the instrument following the term “ALTERNATE PLEA” was intended to constitute the motion for new trial. Contrary to appellant’s contention, we do not believe the grounds assigned in the motion for judgment n. o. v. can be considered as grounds for the motion for new trial. Orderly procedure requires that each motion be considered separately.

Nowhere in the motion for new trial do we find any assignment of error complaining of the action of the court in refusing his requested instruction defining the term “self-defense.” Since the ground of error was not distinctly set forth in the motion for new trial the complaint was waived. Field v. Sosby, 226 S.W.2d 484, 486 (Tex.Civ.App.-Waco 1950, writ ref’d); Adams v. State Board of Insurance, 319 S.W.2d 750, 757 (Tex.Civ.App.-Houston 1958, writ ref’d n. r. e.).

By the second point appellant contends that the court erred in overruling his motion for judgment notwithstanding the verdict because there is no evidence to support the answer to Special Issue No. 3 in which the jury found that the appellee was acting in self-defense.

Upon this issue of self-defense the trial court instructed the jury as follows:

“Upon the law of self defense you are instructed that when a person is attacked or threatened with an attack by another, and there is created in the mind of the person so attacked a reasonable expectation or fear of death or of serious bodily injury, then the law excuses or justifies such person so attacked in resorting to any means at his command to prevent his assailant from taking his life or inflicting upon him any serious bodily injury, and it is not necessary that there should be actual danger as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time; and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
“You are instructed that if he reasonably believed that danger was imminent, he had the right to strike the first blow and did not have to wait until he was struck; however, he must use only that degree of force which appeared reasonably necessary to repel a threatened violence.
“You are further instructed that serious bodily injury means such injury as gives rise to an apprehension of danger to life, health or limb.”

The testimony shows that a short time before the incident in question, Diaz discovered that his registered bull had been injured and was limping in both hind legs. Appellant’s farm adjoined the farm owned by Buck Seallorn where appellee, Deavers, had arranged for the pasturing of some of his cattle. Seallorn told appellant that their bull had gotten on his land and that he and Deavers had put the bull back on Diaz’s land. After receiving this information, Diaz and his wife drove to Deavers’ farm. Upon arriving there Diaz drove to the workshop where Deavers was sharpening a lawn mower blade on a grinder. Diaz entered the workshop unannounced and approached Deavers and said “Are you Deav-ers”? When Deavers answered in the affirmative, Diaz accused him of injuring his bull, stating: “You are not going to get away with hurting my bull.” Deavers testified that from his facial expression, he could tell that Diaz was furious. He testified that he told Diaz that he did not injure his bull and requested Diaz to leave the premises; that he walked back to the grinder and continued to grind the blade; that Diaz followed him and continued to remonstrate with him about injuring his bull. He testified that he again advised him to leave and then left the workshop and went outside to attach the blade on a mower by the use of a large box wrench. While he was down attaching the blade on the mower, he testified Diaz stood over him with his hand on his knees again stating “You are not going to get away with hurting my bull,” and that he again requested Diaz to get off of his property. At that point, he testified that Diaz raised his left hand and when he did he struck Diaz with the wrench. Deav-ers testified that since Diaz appeared to be furious and continued to follow him around yelling at him in a loud voice, he concluded that Diaz was on the verge of attacking him causing him serious bodily injury. He testified that the reason he feared serious bodily injury was that he had lost the use of his kidneys and had recently received a kidney from his brother which had been transplanted in the abdominal section of his body immediately beneath the surface of the skin. Therefore, he testified, he knew any type of combat would be likely to destroy his transplanted kidney, resulting in his death or causing him to have to return to a hemodialyzer machine for the remainder of his life.

Appellant Diaz argues that in order to establish the right of self-defense, appel-lee’s conduct must be viewed objectively and must be measured by the conduct of a reasonable man rather than subjectively as it appeared to appellant at the time. Based on this premise appellant argues that since the evidence shows nothing more than a mere verbal provocation, such proof would be wholly insufficient, as a matter of law, to create in the mind of a reasonable man a reasonable apprehension of serious bodily injury. Consequently, he contends that there is no evidence to support the finding that appellee acted in self-defense. We do not agree with this proposition.

Although sec. 9.31(b)(1), Tex.Pen. Code Ann. (Vernon’s 1974), provides that the use of force against another is not justified in response to verbal provocation alone, as we view the record, the acts and conduct of Diaz amounted to something more than mere verbal provocation.

In determining whether there is any evidence to support the jury’s finding of self-defense, it becomes our duty to consider the evidence in its most favorable light in support of the finding, considering only the evidence and reasonable inferences to be drawn therefrom and disregarding that which is to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Upon applying this rule, we are of the opinion that there was some evidence of probative force to support the jury’s finding.

Our statutes provide a person is justified in using force against another to the degree that he reasonably believes necessary to protect himself. Sec. 9.31(a), Tex. Pen.Code Ann. The trial court instructed the jury that in order to claim the right of self-defense his apprehension of danger must have been reasonable. In our view, the words used by Diaz, together with his demeanor in pursuing the appellee from place to place and in finally raising his left hand while appellee was down attaching the blade to his mower, constituted some evidence of probative force that appellee reasonably believed it was necessary to use force to protect himself. Consequently, we are of the opinion that there was ample evidence to support the finding that he acted in self-defense. Accordingly, the second point is overruled.

In the third and fourth points appellant asserts that the trial court erred in overruling his motion for new trial because there was insufficient evidence to support the jury’s finding that the appellee acted in self-defense and that Diaz provoked the difficulty as found by the jury in response to Special Issues Nos. 3 and 4, respectively. In the sixth point appellants assert that the trial court erred in overruling their motion for new trial in that the jury’s finding of no damages in response to Special Issue No. 5 is against the great weight and preponderance of the evidence.

As pointed out in our discussion under the first point, in order for appellant to complain of an adverse ruling on appeal the alleged error must be set forth as an assignment of error in his motion for new trial. We find nothing in appellants’ abbreviated motion for new trial indicating that he sought a new trial on the ground that the jury’s findings to Special Issues Nos. 3, 4 and 5 were factually insufficient or were against the overwhelming weight and preponderance of the evidence. Consequently, the complaints made in points 3, 4 and 6 will be considered as waived for the same reasons heretofore discussed under the first point.

Under the fifth point appellant asserts that the trial court erred in overruling his motion for judgment notwithstanding the verdict because the jury’s finding that Diaz suffered no damages, in response to Special Issue No. 5, is erroneous as a matter of law. Appellant argues that although the jury was authorized to reduce the damages after having found that appellant provoked the difficulty, the jury was not authorized to find he suffered no damages in view of the undisputed proof showing he suffered substantial damages. We find no merit in this contention.

A defendant who acts in self-defense at the time he inflicted the injuries is not liable for any damages on account of such injuries. Koons v. Rook, 295 S.W. 592, 596 (Tex.Comm’n App.-1927); Lee v. Thomas, 534 S.W.2d 422, 427 (Tex.Civ.App.-Waco 1976, writ ref’d n. r. e.). Thus, the jury having found that appellee acted in self-defense, the finding on the damage issue was rendered immaterial. In view of the finding on the self-defense issue, it would have been the duty of the trial court to render the judgment that it did render even if the jury had answered that appellant was damaged in a substantial amount. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335 (Tex.Comm’n App.1939). The fifth point is overruled.

Under the seventh and final point, appellant contends that the cause should be reversed and remanded for a new trial due to the fact that the court reporter lost eight exhibits consisting of photographic slides depicting the injuries received by appellant as a result of the assault. It is undisputed that the exhibits were lost by the court reporter after having been introduced in evidence. It is likewise undisputed that in no way were either appellant or appellee responsible for their loss. It is also undisputed that the photographic slides cannot be duplicated or reproduced. Appellant maintains that since he has been deprived a material part of the record, this court should exercise its inherent power and reverse and remand the cause for new trial. He argues that the situation here is comparable to a situation where the statement of facts have been lost.

We recognize the rule that a reviewing court may reverse a judgment where the appellant, without fault, has been deprived of a statement of facts. Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, 699-700 (Tex.Comm’n App.1936); Goodin v. Geller, 521 S.W.2d 158 (Tex.Civ.App.-Waco 1975, writ ref’d n. r. e.). We have found no case, however, and have been cited none, reversing a judgment solely because photographic exhibits were lost and not before the appellate court.

Generally, all evidence introduced in the court below should be brought forward in the record and made available for appellate review. Where exhibits in the nature of photographs are lost, the rule seems to be that a reversal will not necessarily be ordered unless it appears that the photographs are material to a proper determination of the cause. 4A C.J.S. Appeal and Error § 784 (1957).

Appellant argues that the slides would show that appellee, in exercising his right of self-defense, used more force than was reasonably necessary. He maintains that the slides would show that appellee struck him on the shoulder as well as in the face. Therefore, he contends that the slides are material on this appeal in determining whether there was any evidence of probative force to support the jury’s finding that appellee acted in self-defense. We are not in accord with this proposition.

The record shows that the issue of self-defense, as well as the nature, location and severity of the injuries inflicted on appellant was fully developed before the court and jury by the testimony of the witnesses. The physician who treated appellant shortly after his injury described the nature and severity of the injuries in detail. Thus, as we have heretofore held, the oral testimony, standing alone, was of sufficient probative force to support the jury’s finding on each of the elements constituting self-defense. Consequently, the photographs were merely cumulative of the testimony delineating the amount of force used by appellee. Hence, even if the slides were before us and showed what appellant contends, they would serve only to create a conflict with appellee’s testimony to the effect that he struck appellant only once. It is well settled that where a finding by the court or jury is supported in the evidence, it may not be disturbed on appeal even though the evidence is conflicting and the appellate court might have reached a different conclusion. Arnold v. Caprielian, 437 S.W.2d 620, 625 (Tex.Civ.App.-Tyler 1969, writ ref’d n. r. e.); Dartez v. Gadbois, 541 S.W.2d 502, 507 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ history). It follows that the absence of the photographs were not material to this court in determining whether the self-defense finding was supported by the evidence, nor would they have been material in connection with the factually insufficient evidence points since appellant failed to properly preserve those points for appellate review.

The judgment of the trial court is affirmed.

      . Appellant’s wife, Alice Diaz, also sued for damages for assault. Pursuant to the jury’s verdict a “take-nothing” judgment was rendered against her about which she makes no complaint on this appeal.