text:
    Philip R. BISHOP, Appellant, v. Raymond Eugene SCOGGINS et al., Appellees.
    No. 1222.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 20, 1979.
    Rehearing Denied Oct. 25, 1979.
    Jack Y. Hardee, Fields, Fields & Hardee, Athens, Karl R. Albert, Bishop, Larimore, Lamsens & Brown, Fort Worth, for appellant.

      Jack T. Life, Life & Bolding, Athens, for appellees.
   McKAY, Justice.

Our opinion dated August 9, 1979, is withdrawn, and the following opinion is substituted therefor.

The principal question in this case is whether the joint will of Paul R. Phillips and his wife, Bobbie A. Phillips, was a mutual and contractual will. The trial court denied the application to probate the joint will as the last will and testament of the survivor, Paul R. Phillips, and granted the application to probate a subsequent will of the survivor as his last will and testament. Appellant Bishop brings this appeal.

On July 14, 1969, Paul R. Phillips and Bobbie A. Phillips, husband and wife, executed a joint will, the pertinent paragraph being as follows:

“It is our will and desire that the survivor of us, PAUL R. PHILLIPS or BOBBIE A. PHILLIPS, as the case may be, shall, during such survivor’s natural life, have a life estate in all of the estate of the deceased spouse, including all property of every kind, type, nature and description, to have the use and benefit of said property during such survivor’s natural life, and at the survivor’s death, the title and fee to all of such property shall vest in PHILIP R. BISHOP.”

The will also provided that the survivor be independent executor of the decedent.

Bobbie A. Phillips, mother of appellant, Philip R. Bishop, by a prior marriage, died on August 1, 1974. On January 13, 1975, Paul R. Phillips filed an application to probate the joint will as a muniment of title, and on January 29, 1975, the will was admitted to probate as a muniment of title.

Paul R. Phillips married again on January 31, 1975, to Clara M. Phillips. On February 4, 1975, appellant Bishop and Paul R. Phillips made a partition or division of what was apparently community property, of Bobbie A. Phillips, deceased, and Paul R. Phillips, with appellant receiving (1) $5,000 cash; (2) miscellaneous furniture; (3) 2 lots and a residence in Malakoff, Texas; (4) an option to purchase a commercial building and lot in Malakoff; and (5) miscellaneous costume jewelry; and Paul R. Phillips received (1) all cash in the Malakoff bank; (2) the Malakoff Insurance Agency building and lot; and (3) all the property in the residence in Malakoff not delivered to appellant.

In August, 1974, Paul R. Phillips executed a subsequent will which purported to revoke all prior wills and which bequeathed all his property to his brothers and sisters or their heirs. On May 9, 1975, Paul R. Phillips executed another will which bequeathed his property to his then wife Clara Phillips, his brother, his sister, the children of his deceased sister, and the widow of his deceased brother. On August 11, 1975, Paul R. Phillips executed another will leaving his property to his brothers and sisters or their surviving spouse or heirs.

Paul R. Phillips died on February 19, 1976, and it is his last will of August 11, 1975, which the trial court ordered admitted to probate. Both the application to probate the August 11,1975, will of Paul R. Phillips, and the application to probate the joint will of Paul R. Phillips and Bobbie A. Phillips were contested, and then both cases were transferred to the district court where they were consolidated into a single case.

The trial court made extensive findings of fact and conclusions of law. The findings and conclusions pertinent to this appeal are summarized hereinafter.

Appellant is an attorney, and he testified that Paul R. Phillips and Bobbie A. Phillips asked him to prepare the will in controversy here; that they told him that they had agreed that Bobbie A. Phillips would leave Paul R. Phillips a life estate in her entire estate with remainder over to appellant; and that in consideration for that Paul R. Phillips agreed to leave Bobbie A. Phillips a life estate in his entire estate with remainder over to appellant, and in the event Bobbie A. Phillips died first, everything would go to appellant at his death. Appellant further testified that he prepared a will to that effect and sent it to them, but he was not present when it was executed. In his further testimony appellant said they told him that he had prepared the will according to their instructions, and that Paul R. Phillips separately requested that the will be so written.

Appellant contends that the uncontro-verted documentary and testimonial evidence shows that Paul R. Phillips and Bobbie A. Phillips made a joint, mutual and contractual will which became irrevocable upon the death of Bobbie A. Phillips. It is appellant’s position that the joint will was a contractual will because it was executed pursuant to an agreement between the makers for a valid consideration, and that the finding of the trial court that Paul R. Phillips and Bobbie A. Phillips did not make a joint and mutual and contractual will is without evidence to support it, or is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

To the contrary appellees maintain that the joint will does not show on its face that it is a mutual or contractual will; therefore, the burden of proof was on appellant to establish that it was mutual and contractual, and that appellant has failed to do so. Appellees further claim that the only evidence tending to support appellant’s position that the will is mutual and contractual was the uncorroborated testimony of appellant, an interested party who stood to profit by such a finding by the court, and that the court was free to reject all or any part of his testimony. Appellees also maintain that the trial court correctly found that Paul R. Phillips effectively revoked the joint will after the death of Bobbie A. Phillips by the execution of three subsequent wills, and that such joint will, therefore, was not the last will and testament of Paul R. Phillips.

Vaughn, “The Joint and Mutual Will,” found in XVI Baylor Law Review, p. 167 (1964), provides some definitions of terms with which we are here concerned. We quote:

“A joint will is a single testamentary instrument which contains the wills of two or more persons, is executed jointly by them, and disposes of property owned jointly, in common, or severally by them. A mutual will is one executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other. If the testators name each other as beneficiaries, the wills are reciprocal. Two or more wills may be mutual without being joint. A joint and mutual will must be the will of two or more persons contained in a single testamentary instrument, jointly executed by them pursuant to an agreement to dispose of their respective estates to each other or to third parties. Although the initial execution of the will may categorize it as joint and mutual[,] nevertheless, it cannot be given effect as such while one party survives, but, as to him, it will be given effect as his separate will.”

See Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 166, 169 A.L.R. 1 (Tex.1946); Annotation, 169 A.L.R. 9, 12, 13; Dickerson v. Yarbrough, 212 S.W.2d 975 (Tex.Civ.App.—Dallas 1948, no writ); 10 Texas Practice, Bailey, Sec. 435, pp. 101—4 (1968); 61 Tex.Jur.2d Wills, Sec. 117-119, pp. 234r-241.

The will in Nye v. Bradford, supra, provided “[W]e do hereby will, bequeath and devise ‘to the survivor of us’ all property of which either of us shall be seized and possessed . . . to be owned and held by said survivor during his or her lifetime, with remainder over to our beloved children, to-wit: Mrs. Florrie May Bradford Nye and Robert Roy Bradford . . .” In analyzing and construing the will the court said:

“The will treats the property of the testators as one, and the dispositions made are joint gifts from the testators, dividing the property equally between the two children. A will like that could not have been made without agreement between the testators that it should be so made. Its very terms are evidence that an agreement was made, and they are entirely consistent with the testimony of the witnesses as to what the agreement was. The testimony that the agreement was made and the terms of the will, in our opinion, clearly show that the will is contractual, was executed pursuant to agreement.” [Emphasis added.]

In Dickerson v. Yarbrough, supra, the language of the will was as follows:

“It is the will and desire of each of us [C. H. Payton and wife, Martha Payton] that whichever one of us shall survive the other shall have and hold all of our property of which we or either of us may die seized and possessed . . .. And it is our joint desire and request that at the death of such survivor our said estate shall be equally divided between the nearest of kin to the said C. H. Payton and the said Martha Payton. . . .”

In construing the language of the will the court said at p. 978, “A will in the foregoing language would be hardly possible without previous understanding and agreement, a testamentary contract being evident from its very terms.” [Emphasis added.]

In Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948), the will provided: “We give, bequeath and devise to the survivor of us, T. M. Harrell or Maggie Harrell, as the case may be, all our property, real, personal and mixed for the sole use and benefit of the survivor of us. After the death of both of us . . . the remainder of our property, of which the survivor of us shall die seized and possessed shall be disposed of as follows: . . ..” There followed fifteen special bequests to various institutions and individuals. In construing the will the court said at p. 878: “The will as a whole sets forth a comprehensive plan for the disposition of the property of the testators and was clearly made in pursuance of a contract between them. We agree with respondent that it is contractual as well as testamentary in character.”

In Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, 590 (1954), the court construed a will which provided that “It is our will and desire that the survivor of us, B. H. Murphy or Annie E. Murphy, as the case may be, shall . . . have all the estate of every description, real, personal or mixed, which either or both of us may own at our death, to be used, enjoyed, occupied and conveyed by such survivor for and during his or her life time, as the case may be, and that upon the death of such survivor any of such estate then remaining shall be divided among the persons following and in the following manner . . ..” There followed eight paragraphs bequeathing a half section of land for life to each of the eight children of the testators with remainder to grandchildren. The court held the will was contractual, and the wife, having probated the will and having accepted the benefits, was estopped to change any of its provisions.

In the case of Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621, 623-4 (1957), the testators executed a joint will providing “We mutually will, direct and devise, that after the death of either of us, all our property and estate, . . . shall be inherited by and shall at once pass into the unrestricted possession of the last survivor of either of us in fee-simple.” The will further provided that after the death of the survivor all the property was to be inherited and divided equally among the three children, share and share alike. The court there said: “One party to a mutual will may not render it unenforceable after the death of the other party by declaring a revocation thereof and declining to take benefits under it. Death of one of the parties to a mutual will, or mutual wills, will put effective revocation thereof beyond the legal right and power of the survivor.”

It has long been held that one who relies upon a will as a contract has the burden of proving that the will is contractual and came about as a result of a mutual agreement by both parties. Nye v. Bradford, supra; Kastrin v. Janke, 432 S.W.2d 539 (Tex.Civ.App.—El Paso 1968, writ ref’d n. r. e.). However, wills which purport to be contractual “are reviewed by the courts with caution; they can be established only by full and satisfactory proof; and no presumptions or inferences will be indulged in favor of them.” Magids v. American Title Insurance Co., Miami, Fla., 473 S.W.2d 460, 464 (Tex.1971); Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267, 272 (Tex.1961); Crain v. Mitchell, 479 S.W.2d 956 (Tex.Civ.App.—Fort Worth 1972, writ dism’d). Further, the agreement must be more than a mere agreement to make wills or make the joint will the parties actually made; it must involve the assumed obligation to dispose of their property as provided in the joint will, and not to revoke such wills, which are to remain in force at their deaths. Magids v. American Title Insurance Co., Miami, Fla., supra at p. 465; Reynolds v. Park, 521 S.W.2d 300, 311 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.); 97 C.J.S. Wills § 1367 at p. 301.

A will may, by its terms or in its recitals, conclusively prove or tend to prove that it was based on or executed in furtherance of an agreement, but the mere making of a joint will alone does not prove that the will was made in furtherance of a contract. Nye v. Bradford, supra at 168. Furthermore, use of such words as “we,”- “us,” and “ours” alone does not establish a contract to make a will nor does execution of the will simultaneously before the same witnesses establish such a contract. Morris v. Texas Elks Crippled Childrens’ Hospital, Inc., 525 S.W.2d 874, 876 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.).

The appellant relies on the language of the will itself to prove that it was signed pursuant to such an agreement, directing our attention to use of the words “we”, “us,” and “our,” in the will, the reciprocal and identical provisions of the will, the joint execution of the will, and the disposition of the property upon the death of the first to die and upon the death of the survivor. It is our view that the joint will of Paul R. Phillips and Bobbie A. Phillips does not show on its face to be a mutual and contractual will and that the language of the will and the intent expressed therein may be distinguished from that found in Nye v. Bradford, Dickerson v. Yarbrough, Harrell v. Hickman, Murphy v. Slaton, and Weidner v. Crowther, all supra. In these cases there was a comprehensive plan to dispose of all the property of both testators, and they treated the property of both testators as one. The Phillips’ will does not treat the property of the testators as one. It states “It is our will . . . that the survivor . shall . . . have a life estate in all the estate of the deceased spouse . and at the survivor’s death, the title and fee to all of such property shall vest in Philip R. Bishop."

Our view of the above language leads us to the conclusion that the survivor received a life estate in the property of the deceased spouse, and at the survivor’s death the beneficiary, appellant Bishop, would receive “the title and fee to all such property,” meaning only the estate of the deceased, Bobbie A. Phillips. We hold that such will was not a mutual and contractual will which became irrevocable on the date of Bobbie A. Phillips’ death.

In Magids v. American Title Insurance Co., supra, the will provided: “If my husband survives me, I give, devise, and bequeath to my husband . . . for and during his natural life, all the property . of which I die possessed, for his use and benefit during his natural life. Upon the death of my husband, the title to such property shall vest in Barnett B. Magids, Samuel B. Magids, and Jack S. Magids, share and share alike.” There was an added provision stating that it was the testator’s intention “to create a life estate in all my property . for the benefit of my husband with the remainder” to the beneficiaries or their issue. The court held in Magids that the trial court properly disregarded answers to jury issues to the effect that the Magids orally agreed to execute wills providing each would leave his or her property to the other for life with remainder to their children, and that they each executed the will pursuant to said agreement. The Magids opinion holds that the wills were entirely separate wills which dealt only with each testator’s property, that neither will attempts to deal with the entire community estate of both testators so as to affect the survivor’s community interest or put the survivor to an election whether to take under the will. We hold, as did the Magids court, that the wills of the Phillips involved here, standing alone, do not by their terms constitute any binding contract between the parties which would render the survivor’s will irrevocable upon the death of his spouse. Therefore, Paul R. Phillips would be free to deal with his community interest as he chose to do. See Graser v. Graser, 147 Tex. 404, 215 S.W.2d 867, 870-73 (Tex.1949); and Kastrin v. Janke, supra at pp. 541 — 42.

In its findings of fact the trial court found that appellant received more than Bobbie A. Phillips’ community estate iñ the division or partition of property by appellant and Paul R. Phillips after the death of Bobbie A. Phillips, and the trial court found and held that such division constituted a settlement of the property rights between appellant and Paul R. Phillips. The trial court was the trier of the facts, and the trial court evidently found that appellant failed to meet his burden of proof. Mutual and contractual wills must be established by full and satisfactory proof, and no presumptions or inferences will be indulged in favor of them. Magids v. American Title Insurance Co., supra at p. 464; Reynolds v. Park, supra at p. 312. Extrinsic evidence is admissible to explain uncertain or ambiguous language in a will, but such evidence would not be admissible to show an intent contrary to the plain language of the will itself. Kirk v. Beard, supra, 345 S.W.2d at p. 273.

Even though appellant testified that both testators told him they wanted him to prepare their joint will with life estate to the survivor and the remainder to him, after he drew the will and they had examined it, they each, according to appellant, told him that the will had been prepared as they wanted. In other words each testator approved the language of the will as written, and apparently it expressed their desires. See Rose v. El Paso National Bank, 476 S.W.2d 861, 863 (Tex.Civ.App.—El Paso 1972, no writ); Crain v. Mitchell, supra at p. 958.

In summary, we hold that the joint will of Paul R. Phillips and Bobbie A. Phillips was not a mutual and contractual will; that Paul R. Phillips was free to make another will after the death of Bobbie A. Phillips; that the finding of the trial court that appellant received property equal to in excess of the community estate of Bobbie A. Phillips is supported by some evidence and is binding upon this court and that Paul R. Phillips executed later wills after the death of Bobbie A. Phillips which revoked the joint will.

Accordingly, the judgment of the trial court denying the application to probate the joint will and ordering the probate of the last will of Paul R. Phillips dated August 11, 1975, is affirmed.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    George W. MATTHEWS, Appellant, v. Jeraldean (Sayles) SIMMONS, Appellee.
    No. 1191.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 27, 1979.

      Myles H. Pennington, Grand Prairie, for appellant.

      William H. Kugle, Melvin G. Bateman, Moore, Bateman & George, Athens, for ap-pellee.
   SUMMERS, Chief Justice.

This is an appeal from a judgment terminating the parent-child relationship between appellant, the natural father, and his 14-year old daughter, appointing appellee, the maternal aunt of the child, as managing conservator and appointing appellant and his present wife (stepmother) as possessory conservators of said child.

The appellee filed her petition to terminate said parent-child relationship on October 14, 1977. Appellee alleged, as grounds for terminating parental rights, that appellant committed four of the acts listed in Tex.Fam.Code Ann. sec. 15.02(1) (Supp. 1978), and in addition, further alleged that termination of the parent-child relationship would be in the best interests of the child, Tex.Fam.Code Ann. sec. 15.02(2) (Supp. 1978). Both of these subsections must be proved to authorize a termination of the parent-child relationship. On February 14, 1978, a final hearing on the merits of the case was held before the court without a jury which resulted in a judgment on March 1, 1978, terminating the parent-child relationship between appellant and his daughter, the court basing its decision on sec. 15.02(1)(D) and (E) and the “best interest” provision of sec. 15.02(2) (Supp.1978). Furthermore, appellant and his present wife were granted possessory conservatorship of the child with the right to visit at reasonable times and places. It is from this judgment that appellant has appealed. We reverse and remand.

The record before us contains findings of fact and conclusions of law filed by the trial court. Under these circumstances, the reviewing court must look to the trial court’s findings of fact and conclusions of law and to the judgment in order to determine the basis for the entry of the judgment. Crapps v. Crapps, 546 S.W.2d 909, 911 (Tex.Civ.App.—Austin 1977, no writ). The findings will be sustained if there is any evidence to support them. 4 McDonald, Texas Civil Practice, 16.10(b), p. 29 (1971); Arnold v. Caprielian, 437 S.W.2d 620, 625 (Tex.Civ.App.—Tyler 1969, writ ref’d n. r. e.). We will mention only those findings and conclusions that are pertinent to the rendition of this opinion.

Appellant’s appeal is predicated upon forty-eight (48) points of error alleging that the trial court erred in ordering the termination of the parent-child relationship because (1) the proper burden of proof was not applied by the trial court, (2) the court could not simultaneously terminate parental rights and grant the parent visitation privileges, (3 through 6) the court “split custody” by terminating parental rights as to only one child of the household, (7 through 9) the findings of fact, conclusions of law, and findings in the judgment were entered in the alternative, (10) appellant’s request for additional and amended findings of fact and conclusions of law was denied, and (11 through 48) the findings were supported by no evidence or insufficient evidence, such findings did not support a conclusion of law, nor did such findings prove the necessary elements for termination.

As this case involves the right of a child to the benefit of a home and environment which will most likely promote her best interest and the right of a parent to surround the child with proper influences, Holley v. Adams, 544 S.W.2d 367 (Tex.1976); Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894), and as Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976), recognized the constitutional dimensions of these rights, this case must be strictly scrutinized.

We are of the opinion that the trial court, in its judgment, erred in terminating appellant’s parental rights and then granting possessory conservatorship to appellant and his present wife. In an involuntary termination proceeding under the Texas Family Code, sec. 15.02, the moving party has the burden of establishing the acts alleged by a preponderance of the evidence, Woodard v. Texas Department of Human Resources, 573 S.W.2d 596, 598-99 (Tex.Civ.App.—Amarillo 1978, writ ref’d n. r. e.), and that such termination is “in the best interest of the child.” Sehiesser v. State, 544 S.W.2d 373, 377 (Tex.1976); Wiley v. Spratlan, supra at 351; Johnson v. Jefferson County Child Welfare Unit, 557 S.W.2d 569, 571 (Tex.Civ.App.—Beaumont 1977, no writ).

A court may not deny a parent access to his/her child without first finding that parental possession or access is not in the best interest of the child and that such possession or access would endanger the physical or emotional welfare of the child. Tex.Fam.Code Ann. sec. 14.03(c) (1975). Our record shows the court found that the child’s best interest would be served by terminating the father’s parental rights, and also found that it would be in the best interest of the child that the father and stepmother be allowed to visit her. In Holley v. Adams, supra at 373, the Court observed that the father — the person who brought suit to terminate the mother’s parental rights — testified that “it would not be in the best interest of the child that he never see his mother again; that the best interest of the child would be served by continuing to see his mother.” The Court held there was no evidence “that termination of the parent-child relationship is in the best interest of the child.”

These two findings in the judgment are not satisfactorily explained or rebutted in our record, and are of such inconsistency as to be mutually destructive. Thus, in the instant case, there is no finding that it is in the best interest of the child that appellant’s parental rights be terminated — an essential finding to a valid judgment of termination. Johnson v. Jefferson County Child Welfare Unit, supra at 571. Appellant’s second point of error is sustained.

Appellant complains by his seventh and ninth points of the action of the trial court in entering the judgment findings and conclusions of law in the alternative. We find merit in appellant’s contentions.

Section 11.08 of the Family Code provides that the petition in any suit affecting the parent-child relationship must include the statutory grounds on which the request is made. A petition is a recital of facts which give rise to a cause of action. De La Garza v. Ryals, 239 S.W.2d 854, 856 (Tex.Civ.App. — Fort Worth 1951, writ ref’d n. r. e.). This is necessary to inform the defendant of what he is called upon to answer and enables him to prepare his defense. Lewis v. Hatton, 86 Tex. 533, 26 S.W. 50, 51 (1894); Rules 45 and 47, Tex.R.Civ.P. The appellee has complied with these requirements concerning her petition. Pleadings can be in the alternative, and a petition using the term “and/or” was not too indefinite to state a claim upon which relief could be granted. Texas Van Lines v. Templeton, 305 S.W.2d 646, 648 (Tex.Civ. App. — Dallas 1957, writ ref’d n. r. e.); Al-bright v. Long, 448 S.W.2d 564, 566 (Tex. Civ.App. — Amarillo 1969, no writ).

The record reveals that the findings in the judgment and in part of Conclusion of Law No. I are stated in the alternative; they are not positive findings that either one of the alternatives occurred. For example, findings in Conclusion of Law No. I that the appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, and finding the same in the judgment is not a finding by the trial court that appellant placed the child in conditions or surroundings which endangered the child’s physical or emotional well-being, nor is it a finding that appellant knowingly allowed the child to remain in such conditions or surroundings nor is it a finding that both alternatives occurred. See In the Interest of S_H_, 548 S.W.2d 804, 806 (Tex.Civ.App.—Amarillo 1977, no writ).

As we view this record, we find reversible error in that the court in its judgment purported to terminate parental rights of the natural father and at the same time appointed said father and his present wife as possessory conservators. Furthermore, the judgment findings and conclusions of law are defective as set forth above.

In view of our disposition of points two, seven and nine, we do not find it necessary to address appellant’s other points of error.

The judgment of the trial court is reversed and the cause is remanded.

      . Sec. 15.02(1) provides that:
      “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
      (1) the parent has:

      (B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or

      (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
      (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
      (F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; . . . ; and in addition, the court further finds that
      (2) termination is in the best interest of the child.”

      . Conclusion of Law No. I states in part:
      “The respondent, GEORGE WILSON MATTHEWS, knowingly placed or knowingly allowed the minor child, MARY DEAN MATTHEWS, to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. . . . ”
      The pertinent part of the judgment states: . . the Court finds that the respondent, GEORGE WILSON MATTHEWS has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, and has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being the child . .


author: MOORE, Justice.

text:
    William Ray GREEN v. The STATE of Texas.
    No. 1214.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 27, 1979.

      Tom S. McCorkle, Dallas, Waggoner Carr, Carr & Harsdorff, Inc., Austin, for appellant.
    Linda A. Marchesseau, Davis Grant, State Bar of Texas, Austin, for appellee.
   MOORE, Justice.

The State of Texas instituted this action, acting through the Grievance Committee, District No. 2-C, of the State Bar of Texas, against William Ray Green, a practicing attorney, seeking a judgment of disbarment. The State alleged that Green had committed certain acts and conduct in violation of section 8, Code of Professional Responsibility, Disciplinary Rules, DR1— 102(A)(3-6). Specifically, the State alleged: (1) that on or about January 18, 1977, Green engaged in an act of deviate sexual intercourse with Mark Edmund Webb by placing his mouth on the genitals of Mark Edmund Webb in Mr. Peeper’s Bookstore, a public place, in violation of section 21.07 of the Penal Code of Texas; (2) that immediately following the act of deviate sexual intercourse, Green was arrested and taken into custody and thereafter escaped police custody in violation of section 38.07 of the Penal Code of Texas; and (3) that while testifying in his own behalf in a criminal case, styled the State of Texas v. Bill Green Cause No. 161, 963 and while under oath, made false, material statements with the intent to deceive and with the knowledge of the falsity of such statements in violation of section 37.02 of the Texas Penal Code entitled “Perjury,” and section 37.03 of the Texas Penal Code entitled “Aggravated Perjury.”

Trial was before the court and jury. At the conclusion of the evidence, the State made a motion for instructed verdict or that the court withdraw the case from the. jury, contending that the evidence, as a matter of law, established that Green engaged in illegal conduct involving moral turpitude, conduct prejudicial to the administration of justice, and conduct that adversely reflected upon his fitness to practice law, all of which violated the Code of Professional Responsibility. In response to the motion, the trial court withdrew the case from the jury and entered judgment disbarring Green from practicing law in this State from and after February 15, 1978. From said judgment defendant perfected this appeal.

Defendant did not appear at the trial or offer any evidence in his behalf except character witnesses. Moreover, he makes no contention on this appeal that the trial court’s ruling is not supported by the evidence.

The record reveals that the State called witnesses who testified with regard to defendant’s conduct on January 18, 1977, while in Mr. Peeper’s Bookstore in Austin, Texas, as well as his conduct at the time of his arrest and escape from custody. Because defendant has not challenged the judgment as being without support in the evidence, it would serve no useful purpose to discuss the testimony of more than 500 pages offered by the State. We have carefully reviewed all of the testimony in the record and find that there is ample evidence to support each of the allegations of misconduct as delineated in the State’s pleadings. .

Under his first point of error, defendant seeks a reversal on the ground that the trial court erred in withdrawing the case from the jury and rendering judgment against him because a fact issue existed for determination by the jury. He argues that the State, by offering a portion of his deposition testimony, created an issue for the jury of whether he committed an act of deviate sexual intercourse as alleged by the State under its first count. In our view the contention is without merit.

In connection with this point, the record shows that shortly before the present trial commenced, the State took the defendant’s deposition. In the course of his deposition, the State questioned him about certain testimony he had given in a criminal case, styled The State of Texas v. Bill Green, in which he was charged with committing an act of deviate sexual intercourse. In the course of the deposition, he was asked whether he testified in that case that the act did not occur. He answered that he testified in the criminal case that the act did not occur. During the present trial, the State offered the foregoing deposition testimony into evidence, but before offering it, counsel for the State advised the court that such evidence was being offered for the limited purpose of showing an admission against interest. There being no objection, the testimony was admitted into evidence. It is this deposition testimony that defendant contends raises a jury question of whether he committed an act of public lewdness. In reply to defendant’s contention, the State states that the deposition testimony in question fails to raise a jury issue; therefore the trial court was authorized to withdraw the case from the jury and render judgment.

As a general rule, documentary evidence is held to be conclusive against the party introducing it. Southwestern Chemical & Gas Corp. v. Southeastern Pipe Line Corp., 369 S.W.2d 489, 493 (Tex.Civ.App.—Houston 1963, no writ). This rule, however, is subject to several exceptions. One such exception is that the rule does not apply when the document is introduced for a limited purpose. Jenkins v. Tanner, 166 S.W.2d 167, 168-69 (Tex.Civ.App.—Amarillo 1942, no writ), citing, Masterson v. Bouldin, 151 S.W.2d 301, 307-08 (Tex.Civ.App—Eastland 1941, writ ref’d).

The State offered the deposition testimony in question in support of its perjury counts. The State takes the position that proof of the defendant’s sworn denial of an act of public lewdness in his previous criminal case was an essential element of its counts for perjury, and the admission in his deposition that he had previously testified in court that no such act occurred was offered in support of the perjury counts. In view of the State’s announcement that the deposition testimony in question was being offered as “an admission against the interest, and for that limited purpose,” the deposition testimony in question cannot be construed as raising an issue upon the pub-lie lewdness count. Consequently, the general rule announced above does not apply. Further, whether the deposition testimony in question was offered for a limited purpose or not, we do not believe that evidence merely showing that the defendant denied an act of public lewdness while testifying in his previous criminal trial would be of sufficient probative force to raise a question of fact on that issue in the present case. Thus, we conclude that the deposition testimony in question did not serve to create a fact issue; therefore, the trial court was authorized to withdraw the case from the jury and render judgment against the defendant.

In his second point of error defendant seeks a reversal on the ground that the trial court erred in refusing to grant his motion for continuance.

The record reveals that just before the jury was selected, counsel for the defendant orally moved for continuance predicated on defendant’s illness. In support of the motion, his counsel called Dr. Lee Roy Mathis, defendant’s family physician. Dr. Mathis testified that defendant contacted him on the day before the trial commenced, complaining of nausea, abdominal discomfort, cramps, and diarrhea. Dr. Mathis testified that he put him in the hospital for the purpose of giving him medication and performing some diagnostic studies. Although the doctor testified that he believed that defendant should be hospitalized for about a week, he also testified that defendant did not have a fever; he had not vomited or had diarrhea that the doctor was aware of; none of defendant’s tests showed any organic problems, and there was nothing objective that showed he had any basic problem. When asked if being put to trial would likely endanger Green’s health to any degree, the doctor testified, “At this time, I don’t believe that it is likely to endanger his health.” He further testified that Green “could carry on with this trial.” The foregoing testimony was the only evidence offered to support the motion. There is nothing in the record to show that defendant’s testimony could not have been made available by the taking of his deposition, nor is there anything showing to what he would have testified had he been present at the trial.

In 12 Tex.Jur.2d Continuance secs. 19-20, at 565-68 (1960), is a discussion and citations of authorities pertaining to continuances sought on the ground of absence of a party to the litigation. A motion for such a continuance is addressed largely to the discretion of the trial court. Mere absence of the party is not enough to entitle him to a continuance. It must be shown both that the absent party had a reasonable excuse for not being present, and that his absence resulted to his prejudice. A reasonable excuse for the absence will not require a reversal where no prejudice is shown. A continuance may properly be denied if the motion therefor fails to show that by the exercise of reasonable diligence the party’s testimony could not have been made available by taking his deposition. The testimony of the absent party must be material and must be admissible under the pleadings. Erback v. Donald, 170 S.W.2d 289, 291-92 (Tex.Civ.App.—Fort Worth 1943, writ ref’d w. o. m.).

Basically, the testimony of Dr. Mathis offered in support of the motion for continuance amounts to nothing more than self-serving declarations of the defendant. The doctor merely testified as to the subjective complaints made by the defendant. He testified that he could find no objective symptoms to substantiate such complaints. Moreover, the doctors testified that Green was able to attend the trial without injury to his health. Consequently, we do not believe that the defendant discharged his burden of showing a reasonable excuse for not attending the trial. In addition to this, there is nothing to show that his testimony could not have been taken by deposition. Because there was no proof that he was seriously ill, the exercise of reasonable diligence would require a showing of some effort to take his deposition during the trial.

It is well settled that the trial court’s discretionary power to grant or deny a motion for continuance will not be disturbed on appeal unless the record shows an abuse of discretion. Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.1963); Linton v. Jones, 462 S.W.2d 636, 637-38 (Tex.Civ.App.—Tyler 1971, no writ). In our view the record fails to reflect an abuse of discretion.

By his third and final point of error, defendant urges that the trial court had no jurisdiction to hear the case, because the preliminary hearing conducted by the District 2-C Grievance Committee, at which the determination was made to institute the present suit against defendant, was not conducted in accordance with the provisions of the Texas Administrative Procedure and Register Act. Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Vernon Supp.1978). We find no merit in this contention. The Texas Administrative Procedure and Register Act mandates certain procedural rules to be followed by various state agencies. In sec. 3(1) of the Act, “agency” is defined as:

“. . . [a]ny state board, commission, department, or officer having statewide jurisdiction, other than an agency wholly financed by federal funds, the legislature, the courts, the Industrial Accident Board, and institutions of higher education, that makes rules or determines contested cases.”

The question is whether a grievance committee of the State Bar Association falls within the foregoing definition of an “agency” so as to be subject to the provisions of the Act. This identical question was decided in the case of Wilson v. State, 582 S.W.2d 484, 486 (Tex.Civ.App.—Beaumont 1979, no writ). In that case, the court squarely held that because a grievance committee does not have state wide jurisdiction, promulgates no rules, and does not decide “contested cases,” a grievance committee of the State Bar Association is not subject to the terms of the Act. On the basis of the holding in that case, defendant’s third point of error is overruled.

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    Ursula K. ATKINSON, Relator, v. The Honorable Judge Barbara CULVER and Gerald Vestal Atkinson, Respondents.
    No. M11771.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 5, 1979.
    J. Michael Cunningham, Midland, for relator.

      Barbara G. Culver, Judge, 318th Dist. Court, Midland, pro se, and Lynch, Chap-pell, Allday & Aldridge, Randall Lundy, Tom C. McCall, Midland, for respondents.
   OPINION ON MOTION

WARD, Justice.

Ursula K. Atkinson has filed a proceeding to seek the issuance of a writ of mandamus to compel the Honorable Barbara Culver, Judge of the 318th Judicial District Court of Midland County, Texas, to enter an order nunc pro tunc granting a new trial in Cause No. DR-5492, “In the Matter of the Marriage of Ursula K. Atkinson and Gerald Vestal Atkinson and in the Interest of Gregory Todd Atkinson and Heidi Atkinson, [minor] Children.” For the reasons to be stated, motion for leave to file the petition for the writ and consequently the application for writ of mandamus are denied.

Certain events and their dates in the matter are noted. On February 7, 1979, judgment was rendered and entered by the District Court based upon a verdict of a jury, whereby custody of the Atkinson’s two minor children was changed from Ursula K. Atkinson to Gerald Vestal Atkinson, and he was appointed managing conservator, of the children. On February 19, Relator filed her Motion for New Trial within the statutory requirements since the tenth day from the entry of judgment fell on a week-end. On March 27, 1979, actual hearing on the motion for a new trial was conducted where witnesses testified regarding the falsity of evidence given at the previous trial. On April 2, 1979, which was the forty-second day after the filing of the Motion for New Trial the Court by letter to the attorneys of record advised that the Court had decided to grant Ursula K. Atkinson a new trial, and dates for the new trial were suggested. By letter dated April 26, 1979, from the District Clerk of Midland County, attorneys for the parties were advised that the second trial was to begin on June 4,1979. On May 11, 1979, the attorneys for Gerald Vestal Atkinson filed their Motion to Dismiss for Lack of Jurisdiction, alleging that, under Texas Rules of Civil Procedure 306a and 329b since no formal order had been signed and entered by the Court within forty-five days after the filing of the Motion for New Trial, the motion had been therefore overruled by operation of law on April 5, 1979; that thereafter, after the expiration of thirty days, on May 7, 1979, the Court lost jurisdiction of the cause and that therefore the Judgment of February 7, 1979, had become final. On May 16, 1979, the Court entered a formal order granting a new trial for the reason that it appeared to the Court that certain testimony presented to the jury by Gerald Vestal Atkinson was perjured. Thereafter, the Relator filed application for entry of judgment nunc pro tunc, for the entry of an order granting a new trial, and hearing was had on June 7, 1979, thereon and on the Motion to Dismiss for Lack of Jurisdiction. On June 8, 1979, the Honorable Judge Barbara Culver did enter an Order Granting Motions to Set Aside Order Granting a New Trial and to Dismiss for Lack of Jurisdiction, and did further sign and enter an Order Denying Relator’s Application for Entry of Order Nunc Pro Tunc and further an Order Denying Request to Set Case for Trial.

This Court has had occasion previously to consider a similar request for the entry of a nunc pro tunc order granting a motion for new trial after the expiration of thirty days from the forty-fifth day when the motion for new trial was filed where there had been an oral order made during the forty-five day period granting the new trial. There, on the eighty-eighth day after the filing of the motion for new trial, the trial court entered judgment nunc pro tunc granting a new trial. Travelers Express Company v. Winters, 488 S.W.2d 890 (writ ref’d n. r. e.). This Court held that the nunc pro tunc order granting a new trial was not invalid and that the new trial could proceed. However, in our opinion, Reese v. Piperi, 534 S.W.2d 329 (Tex.1976), effectively overturned Winters. There, the Supreme Court held that, where the forty-five day period for final disposition of the motion for new trial had already lapsed and that the thirty days following the overruling of the motion for new trial by operation of law also had lapsed, the trial court could not thereafter enter an order nunc pro tunc granting a new trial as that could extend indefinitely the time for final disposition of the Motion for New Trial, contrary to Rules 5, 306a, 329b subdivision 4.

On the basis of Reese v. Piperi, the requested relief is denied.


author: REYNOLDS, Chief Justice;

text:
    In the Matter of the Marriage of Freida Ann DUNN and Darrell Jay Dunn.
    No. 9050.
    Court of Civil Appeals of Texas, Amarillo.
    Oct. 10, 1979.
    A. W. Salyars, Lubbock, for appellant.
    Harry H. Jung, Crosbyton, for appellee.
   REYNOLDS, Chief Justice;

The nunc pro tunc judgment appealed from attempts to amend the rendition of a final judgment, a judicial act which is not subject to amendment nunc pro tunc. Reversed and rendered.

On 15 June 1977, the trial court signed a judgment dissolving the marriage of Freída Ann Dunn and Darrell Jay Dunn, fixing the conservatorships of and support for their minor child, and dividing their estate. The judgment contains no specific adjudication of either party’s liability for payment of income taxes. Approved as to form by the attorneys for the parties, the judgment became final.

A year later on 19 June 1978, Freída Ann, after being advised by Darrell Jay of her liability for 1977 income taxes, moved for the entry of a nunc pro tunc judgment to provide that Darrell Jay shall be responsible for the payment of all income taxes for the year 1977. As the basis for the relief sought, her motion recites

that it was the original intention of the Court that all income taxes traceable to properties received by Respondent [Darrell Jay Dunn] should be born by Respondent in consideration of his receipt of the property in the division of the community estate. Such provision in the judgment was omitted by the attorneys in preparation of the judgment and such omission was unintentional. Unless such provision is entered in this cause, Petitioner [Freída Ann Dunn] will suffer unreasonable hardship and will have suffered an unfair division of the community property.

Darrell Jay opposed the motion. He pleaded that the original judgment contains the true and accurate rulings and orders of the court.

Hearing the evidence which was brought forward in the appellate record, the trial court found “that the allegations in the motion are true and that Petitioner is entitled to the relief sought therein.” The court proceeded on 20 November 1978 to render a nunc pro tunc judgment, which is identical with the original judgment except for the addition of a provision reading:

IT IS DECREED that Respondent for and in consideration of the receipt of the properties herein before described shall bear and be responsible for payment of all income taxes accumulated and payable to Internal Revenue Service for the year 1977 derived from income on said properties.

Darrell Jay has appealed. He contends, in essence, that the nunc pro tunc judgment is void because the correction it attempts to make is judicial in nature and beyond the power of the court to make after the original judgment became final. Freída Ann counters that the correction was clerical in character and may be made at any time.

When the trial court’s decision is officially announced, either orally in open court or by written memorandum filed with the clerk, the judgment is rendered. After the judgment has become final, clerical errors in the “entry” of the judgment rendered may be corrected by a nunc pro tunc judgment, but judicial errors in the “rendition” of the judgment may not be so corrected. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970). Whether error in the original judgment is judicial or clerical is a question of law, and the trial court’s finding or conclusion as to the nature of the error is not binding on the appellate court. Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968).

Thus, the critical inquiry is not what judgment might or ought to have been originally rendered, but what judgment was rendered. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041 (1912). Once the entry and finality of the original judgment were established, Freída Ann had to show that the judgment entered was not the judgment rendered before she was entitled to the nunc pro tunc judgment. However, the accuracy of the original judgment entered has not been questioned. Freída Ann does not even contend that the court earlier had orally pronounced or rendered a judgment different from the one entered. Indeed, she has neither challenged nor contradicted Darrell Jay’s statement in his brief that the complete transcription of the hearing “is totally void of any proof of any prior decree or ruling by Judge Bevers [the trial judge] on the question of income taxes for the year 1977.” Although this unchallenged statement is, by authority of Tex.R.Civ.P. 419, acceptable as a correct one by this Court, Dittberner v. Bell, 558 S.W.2d 527, 534 (Tex.Civ.App.—Amarillo 1977, writ ref’d n. r. e.), the statement of facts reveals it to be a worthy statement.

Beyond that, the trial court did not find there had been a clerical error in entering the judgment originally rendered. The court found only that the allegations in Freída Ann’s motion were true. Given their verity, these allegations, while submitting the original intention of the court was to adjudicate responsibility for payment of income taxes, declare that the provision therefor “was omitted by the attorneys in preparation of the judgment.” The judgment prepared was the judgment signed. There may have been a mistake in failing to declare the judge’s intention when the judgment was rendered, but, if so, the rendition of judgment was a judicial act, Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819, 821 (1936), which cannot be amended nunc pro tunc. Miller v. Texas Life Ins. Co., 123 S.W.2d 756, 759 (Tex.Civ.App.—Dallas 1938, writ ref’d). Therefore, the judge was powerless to reopen the controversy as closed and sealed by the original judgment and to materially alter its terms by judgment nunc pro tunc. McHone v. Gibbs, 469 S.W.2d 789, 790-91 (Tex.1971).

In short, the court was attempting to adjudicate a controversy which had arisen between the parties over the original judgment. The court determined that the terms of the judgment should be changed by adding something to the judgment rendered. That determination is judicial in character and not correctable nunc pro tunc after the judgment became final. Reavley and Orr, Trial Court’s Power to Amend its Judgments, 25 Baylor L.Rev. 191, 197 (1973). Therefore, the nunc pro tunc judgment purporting to alter the original rendition of judgment as clerical error is void. Comet Aluminum Company v. Dibrell, supra, at 59.

Accordingly, the nunc pro tunc judgment is reversed, and we render the judgment the trial court should have rendered. Tex. R.Civ.P. 434. The motion for judgment nunc pro tunc is overruled and it is ordered that Freida Ann Dunn take nothing by her motion.


text:
    PARKS-DAVIS AUCTIONEERS, INC., Appellant, v. VERNA DRILLING COMPANY, Appellee.
    No. 6859.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 10, 1979.
    Rehearing Denied Nov. 14, 1979.

      Crouch and McClain, P.C., C. Sidney McClain, Dallas, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Robert Hayden Burns, J. Nicholson Meindl, Houston, for appellee!
   OPINION

WARD, Justice.

This is a venue appeal involving Subdivisions 7 and 23 of Article 1995, Tex.Rev.Civ. Stat.Ann. Suit was filed in Ector County, and the plea of privilege sought transfer to the Defendant’s residence in Dallas County. The trial Court overruled the plea of privilege, and we affirm.

The Plaintiff, Verna Drilling Company, was interested in purchasing the assets of another drilling company and contacted the Defendant appraisal firm, Parks-Davis Auctioneers, Inc., to make an appraisal of the oil drilling equipment. An agreement was then made between the parties that the Defendant would make the appraisal and would use their employee, a Mr. Harries, for the actual work. After the appraisal began, Verna’s manager inquired of Harries if the Defendant would make an appraisal for them of a National 110 oil rig which they had located in Saudi Arabia. Harries told them that he would have to contact the manager of his firm and would report to them later. According to the testimony offered by the Plaintiff, Harries later reported that the Defendant’s manager had agreed that the Defendant would make the new appraisal, and at that time, and in Ector County, Verna disclosed the location and the ownership of the National 110 drilling rig, and that its price was $725,000.00. According to further testimony offered by Verna, this was confidential and highly valuable information. Verna later heard that the Defendant used this information and bought the National 110 oil rig for itself.

Verna filed this suit in Ector County premised upon fraud perpetrated by Parks-Davis on Verna; that is, that Verna related the confidential and highly valuable information about the oil drilling rig, that the receipt of the confidential information by Parks-Davis was after a fiduciary and confidential relationship existed between the two parties, and that Parks-Davis breached the fiduciary and confidential relationship by later purchasing the National 110 oil rig to the benefit and unjust enrichment of Parks-Davis.

The Appellant’s points are that it was error to overrule the plea of privilege because necessary elements of Verna’s cause of action were not established as it failed to establish (1) the existence of a fiduciary relationship between the parties; (2) the breach of such fiduciary relationship; (3) the authority of Harries as an employee of Appellant to obligate the Appellant in any manner to Verna; and (4) damages. While both parties approach the establishment of vital elements of Verna’s cause of action in terms of their establishment by a preponderance of the evidence, we will treat the points as presenting both “no evidence” and “insufficient evidence” points since the test in this Appellate Court from an order overruling a plea of privilege involving the sufficiency of the evidence is the same as in any other civil case. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953). See 1 McDonald, Texas Civil Practice sec. 4.55 at 613 (1965). We also note that both parties offered testimony as to their respective versions of the events leading to the dispute.

As to the proof establishing the existence of a fiduciary relationship between the parties, the evidence was uncontradicted that on the date when Verna disclosed to Harries in Ector County the location, price and ownership of the National 110, the Appellant, Parks-Davis, was employed by Verna to make the appraisal on the first oil well drilling equipment and was actually performing services under that first contract. The version then offered by Verna was that the Appellant, acting through Harries, accepted the appraisal contract on the National 110 in Ector County. This was denied by the Appellant, and its version was that the information concerning the National 110 was commonly known in the industry and that it had already acquired all knowledge concerning the 110 before the date in question. Appellant further offered testimony that Harries was never authorized to enter into the National 110 appraisal contract, and that Harries refused to make the appraisal contract and informed Verna’s manager to that effect while in Ector County. Harries further testified that he would have only told Verna that Appellant would undertake the National 110 appraisal contract on behalf of the Appellant only if he had received previous authority and permission to enter the contract from his employer. In this connection, Verna’s manager testified that Harries told him that he had received that authority to1 make the new contract. Under this testimony, the trial Court impliedly made the finding that the new contract was authorized by the Appellant and was made by Harries only after he had received the necessary authority.

According to the version offered by Verna, some time later the manager for Verna heard that the Appellant had purchased the National 110 for its own benefit; the Manager then called the Appellant’s manager and, according to his version, the Appellant’s manager then admitted that the Appellant had itself purchased the National 110, and that Verna would not benefit from the transaction.

The manager for Verna further testified Verna could have bought the National 110 for $725,000.00; that it stood ready, able and willing to make the purchase; that after he found that the Appellant had bought the rig, advertisements were then circulated on behalf of the Appellant that it would sell the rig at private sale for $1,750,-000.00 f. o. b. Houston, Texas, although the advertisement stated that the Appellant was selling the rig in the capacity as auctioneer only.

The parties stipulated that the Appellant is a Texas corporation with its principal place of business in Dallas County.

Verna’s cause of action is based upon the breach of a fiduciary or confidential relationship. Under the facts discussed, Verna established that a fiduciary or confidential relationship was created in Ector County and that the Appellant obtained an advantage with regard to the subject matter of that relationship. As noted, the Appellant became the agent and fiduciary of Verna Drilling Company for the purposes of appraising the National 110. It was then subject to the duty as an agent not to compete with the principal concerning the subject matter of its agency. Restatement (2d) of Agency sec. 393 at 216 (1958). The relationship having been established, and it being shown that the Appellant then took advantage of the relationship, Verna Drilling Company had met its burden under Subdivision 7.

The evidence establishing venue under Subdivision 7 was also sufficient to maintain venue under Subdivision 23 as Parks-Davis is a Texas corporation. Plaintiff may rely upon Subdivision 23 if the transactions relating to the primary right sued upon or the breach thereof occurred in the county of suit. Inwood National Bank of Dallas v. First Bank & Trust of Bryan, 485 S.W.2d 842 (Tex.Civ.App.—Waco 1972, no writ). Here, the primary right sued upon was created in Ector County when the Appellant undertook the appraisal of the National 110 and the confidential information was given.

After considering the points attacking the trial Court’s implied findings that a fiduciary relationship existed between the parties, that there was a breach of such fiduciary relationship, that Harries was authorized to obligate the Appellant in making the appraisal of the National 110 rig, and that the Appellant subsequently bought the drilling rig, and having considered the evidence and the inferences arising therefrom which support the trial Court’s implied findings, we overrule the legal insufficiency attack made on the findings. After having reviewed the factual sufficiency attack upon the same implied findings, and having considered all of the evidence, we overrule the latter attack as well.

Venue in this cause is sustainable in Ector County under both Subdivisions 7 and 23, and the judgment of the trial Court is affirmed.


text:
    McCOY’S BUILDING SUPPLY CENTER, Appellant, v. L. C. DAVIS, Appellee.
    No. 6894.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 10, 1979.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Paul McCollum, James A. Moseley, Odessa, for appellant.
    Childs & Bishop Law Offices, Inc., Clyde C. Bishop, Odessa, for appellee.
   OPINION

WARD, Justice.

This is a venue appeal involving Subdivision 9a of Article 1995, Tex.Rev.Civ.Stat. Ann. Suit was filed in Ector County, and the plea of privilege sought transfer to the Defendant’s residence in Hayes County. The trial Court overruled the plea of privilege, and we affirm.

The Plaintiff, L. C. Davis, alleged that on August 6, 1977, he was driving his automobile when it was damaged by a piece of lumber which came from a forklift being driven by employees of the Defendant; that the damages were caused by negligence of the Defendant’s servants who failed to have the lumber properly secured on the forklift which was moving the lumber; and that the negligence was the proximate cause of the damages to the Plaintiff’s car.

At the hearing on the plea of privilege, it was stipulated that the Plaintiff sustained damages as a result of the incident in the amount of $257.01. The Plaintiff then testified that he was driving his automobile in Ector County and that, as he passed the Defendant’s lumber yard, Defendant’s forklift which was carrying a load of lumber approached him and a piece of lumber blew off the forklift and struck and damaged his windshield. The lumber was piled up on the forklift; it was not tied down and one man was riding there trying to hold it down; that the man failed as the wind caught the lumber; that the man then tried to catch the piece of lumber but it struck Plaintiff’s automobile. The piece of lumber was eight feet long, one inch thick, and approximately eight inches wide. On cross-examination, the Plaintiff testified that a whirlwind came up, picked the lumber off the forklift, and whirled it through the air a distance of some 50 yards before it struck his car, and that it was a real windy day. Finally, the Plaintiff stated that he stopped his car and went into the Defendant’s place of business and spoke to the manager; that the employee also spoke to the manager and explained that he tried to catch the piece of lumber but that he couldn’t. The Defendant’s manager then promised to get the automobile fixed.

To sustain exception to the general venue statute under Article 1995 Subdivision 9a, Tex.Rev.Giv.Stat.Ann., the plaintiff must prove that (1) an act or omission of negligence occurred in the county where the suit was filed; (2) that such act or omission was that of the defendant, and (3) that such negligence was a proximate cause of the plaintiff’s injuries. The statute further requires that the venue facts must be proven by a preponderance of the evidence.

It is the Appellant’s contention that the Plaintiff failed to prove that any act or omission of negligence occurred which was a proximate cause of the Plaintiff’s damage. We disagree with the Appellant under the facts presented. One employee is described as riding on the lumber and as trying to hold it down because of the wind. The inference arises that the employee was aware that danger was present; that some of the lumber might be blown off the forklift, and that he was engaged in trying to prevent the very thing that occurred from happening. Then there is the testimony that both the Plaintiff and one employee after the accident immediately reported the incident to the Appellant’s manager who recognized the Appellant’s liability and promised to pay for the Plaintiff’s damages. The reasonable inference arises that the details were explained to the manager; that he was also aware of the danger presented from the blowing wind; that he felt that the precautions taken by his employees failed to meet the care that a reasonable prudent person would have taken under the same circumstances; and that such a person could have foreseen that the wind was of such force that the lumber might reasonably sail a distance of 50 yards. The admission was at least evidence of the two elements. 2 McCormick and Ray, Texas Law of Evidence (2d ed.1956) sec. 1150. Its weight and its probative force were matters for the trier of the facts. 2 McCormick and Ray, Texas Law of Evidence (2d ed.1956) sec. 1129.

Because of the facts as presented, the subsequent promise to pay the claim and the inferences arising, we hold that the evidence was legally sufficient to establish the necessary elements required of the Plaintiff. The Appellant’s points are overruled, and the judgment of the trial Court is affirmed.


author: HALL, Justice.

text:
    Jeff FARRIS, Jr., Appellant, v. Maudine RAYNOR et al., Appellees.
    No. 6072.
    Court of Civil Appeals of Texas, Waco.
    Oct. 11, 1979.

      W. R. Malone, Huntsville, for appellant.
    Richard Morrison, Krist, Gunn, Weller, Neumann & Morrison, Houston, Don Mar-tinson, Fanning, Harper, Wilson, Martinson & Fanning, Dallas, W. T. Bennett, Bennett & Keeling, Huntsville, for appellees.
   HALL, Justice.

This case began as a trespass to try title action brought by Mrs. Evie Wooten against appellant Jeff Farris, Jr., and against Houston Oil And Minerals, Inc., for title to and possession of 100 acres of land situated in Madison County, Texas. Wooten based her suit upon a deed from Lytt Farris and wife, May Farris, dated April 23, 1939. Farris answered the suit, and he also countered with a trespass to try title action against Wooten for recovery of the 100 acres based upon claims of both superior record title and limitations title.

Additionally, Farris filed a third-party complaint against Blanche Dillon, Maudine Raynor, John Gary Raynor, Finis Larrison, Hugh Dillon, Patricia Loe, and Carolyn Ann Raynor Arthur in which he alleged inter alia that in July, 1940 he and Blanche Dillon and Maudine Raynor were parties to an agreed judgment in a partition suit in the 12th Judicial District Court of Madison County, Texas, in which the community estate of their father, Lytt Farris, who had died intestate, was divided among them; that the 100 acres sued for by Wooten were part of the property awarded to him in the agreed partition judgment; that thereafter Maudine Raynor and Blanche Dillon conveyed portions of the lands received by them in the partition suit to third-party defendants John Gary Raynor, Hugh Dillon, Patricia Loe, and Carolyn Ann Raynor Arthur by gift deeds; and that in the event Wooten should recover the 100 acres in her action against him, then he was entitled to cancellation of the gift deeds and to a repartition with the third-party defendants of all of the properties involved in the original partition suit except the 100 acres.

Appellees Maudine Raynor, John Gary Raynor, Patricia Loe, and Carolyn Ann Raynor Arthur answered Farris’s suit with general denials and affirmative pleas of estoppel and the four-year statute of limitation (Article 5529, Vernon’s Tex.Civ.St.). Eventually, those four parties filed motions for summary judgment on Farris’s third-party action, the motions were granted, and summary judgment was rendered that Far-ris take nothing against them. This appeal by Farris is from that judgment.

Farris’s third-party claim against appel-lees has not been severed from the remainder of the case, and a final judgment disposing of the whole case has not been rendered. In Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959), the court held that a summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court, and that without the severance “a party against whom such an interlocutory summary judgment has been rendered will have his right of appeal when and not before the same is merged in a final judgment disposing of the whole case.” The judgment before us falls squarely within that rule, and we are without jurisdiction to review it.

Farris recognizes the rule in Pan American, but he argues against its application, here, theorizing under reasoning which we need not detail that the summary judgment disposed of the remaining issues in the case by implication, including Mrs. Wooten’s suit against him, and that it is a final and appealable judgment. We reject that argument. Under the record, Wooten is not interested in Farris’s third-party claims. She was not a party to the summary judgment proceedings between Farris and ap-pellees, and her cause of action was not legally before the court for the purposes of that judgment.

The appeal is dismissed.


text:
    Lorraine A. SPENCER, Appellant, v. Ralph P. SPENCER, Appellee.
    No. 6810.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 17, 1979.

      Gerald J. Smith, El Paso, for appellant.
    Miranda & Boyaki, Ralph Miranda, Walter L. Boyaki, El Paso, for appellee.
   OPINION

WARD, Justice.

The wife has appealed from a divorce decree complaining that the trial Court abused its discretion in dividing the property. Her main point on appeal concerns the award to the husband of her separate property interest in the husband’s military retirement benefits. We will sustain this point.

The case was tried by the Court without a jury. Findings of fact were neither requested nor filed; however, no dispute exists as to certain of the events which are now recited. The parties were married the first time in 1948. The husband had served in the Army from 1935, and he retired from that service in 1957 and began receiving his military retirement benefits. The parties were then divorced in June, 1959, but the retirement benefits were neither mentioned in the property settlement agreement nor in the subsequent divorce decree. The parties then remarried in December, 1960, and the present divorce, which is now on appeal, was granted in 1978.

At the time of the present divorce, the husband’s service retirement amounted to $673.00 a month. The husband was 61 years of age, had worked for civil service for almost 20 years, and was earning over $15,000.00 a year. He would become eligible for retirement from civil service in December, 1978, and, in the event he retired, his civil service pension would amount to about $400.00 a month. The parties have been separated at least since 1964, although that date is in dispute. The husband has always lived in El Paso, but in 1968 the wife moved to California. She has always done office work and has earned amounts from $4,000.00 to $7,000.00 a year. At the time of the divorce, she was 59 years of age, and eventually she will become eligible for social security benefits. By the property division, each party was awarded all the household furnishings, apparel and personal property subject to their control. The husband received a 1969 automobile that he had purchased and the wife received 1973 and 1968 automobiles which she had purchased. The husband was awarded one Government Life Insurance Policy in the amount of $5,000.00 on his life, and the wife was awarded another $5,000.00 Government Life Insurance Policy on the husband’s life. She was forever to remain the sole beneficiary of that policy. Each party was ordered to pay respective debts that each had incurred — $7,000.00 to the husband which were primarily owed to various loan companies, and $2,800.00 to the wife which she had accumulated. The husband was awarded all of the Army retirement benefits, and if and when he retired from civil service the wife was to receive $200.00 per month of the civil service pension. Any social security benefits that the wife was to receive were awarded to her. The one child of the first marriage had long since become of age, and therefore care of minor children was not before the Court.

The parties agree that at the time of their divorce in 1959 they then became tenants-in-common of the military retirement benefits, since the judgment was silent as to that asset. Busby v. Busby, 457 S.W.2d 551 (Tex.1970). Based on the formula that has become recognized, approximately 25% of the retirement benefit belonged to the wife. Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977). This interest in the retirement was her property, and therefore became her separate property at the time of her remarriage in 1960 since it was owned by her before that marriage. Section 5.01, Tex. Family Code Ann. (1975).

Under the present divorce decree, the Court roughly divided the community property and ordered each party to pay the debts that each party had created. However, it then awarded the separate property of the wife to the husband, and her complaint is that the Court’s discretion did not extend that far in the absence of facts which would make that invasion just and right under the circumstances. A court, under Section 3.63 of the Family Code, can invade the separate personal property of one spouse for the benefit of the other when necessary to a just and fair division. That rule was discussed in Muns v. Muns, 567 S.W.2d 563 (Tex.Civ.App.—Dallas 1978, no writ), and Eichelberger v. Eichelberger, 557 S.W.2d 587 (Tex.Civ.App.—Waco 1977, writ dism’d). The separate personal property of each spouse should be restored to the respective owner in the absence of circumstances justifying an invasion of one spouse’s separate personal property. That invasion can occur only when it is proper to do so to effect a division that is “just and right under the circumstances.” Muns v. Muns, supra; Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App. — San Antonio 1975, writ dism’d). Separate personal property of one spouse cannot be awarded to the other merely to equalize their comparative wealth. However, in the exercise of the court’s discretion, the court may consider, among other things, the age and the physical condition of the parties, the relative need for future support, fault in breaking up the marriage, disparity of the earning power of the parties, as well as their business opportunities, capacities and abilities. See Dietz v. Dietz, 540 S.W.2d 418, 420 (Tex.Civ.App. — El Paso 1976, no writ). Under the record, the equities appear to be with the wife. She earns at most $625.00 per month, and with his Army pension he receives some $1,940.00 per month. After he retires, he should expect to receive about $1,074.00 per month. The wife’s only hope for retirement is from social security benefits. After her divorce, she will lose her military medical benefits and will have to pay her own medical bills. Here, the properties of any substantial value were the two pensions discussed.

The husband’s main argument is that, while the wife may have had an interest in his Army retirement, she failed to exercise her right for almost twenty years and she is now barred by the statute of limitations. Pleading aside, examination of the evidence shows no repudiation of the co-tenancy which was created. The statute of limitations can only begin to run against one co-tenant when the other co-tenant gives notice of a repudiation of a co-tenancy. We find no basis for the application of the statute of limitations in this case. Cruse v. Cruse, 572 S.W.2d 68 (Tex.Civ.App.Houston [14th Dist.] 1978, writ ref’d n. r. e.). Under the facts as presented, we conclude that an abuse of discretion has been shown.

Having concluded that the division of the property constituted an abuse of discretion as far as the wife’s separate personal property was concerned, the judgment of the trial Court is reversed and the case is remanded to the trial Court, but only insofar as the determination and disposition of property is concerned. That portion which is reversed is ordered severed from that part of the judgment which grants the divorce and disposes of attorney fees for the first trial, and that portion which grants the divorce and disposes of attorney fees is now affirmed. The affirmance of attorney fees as determined by the trial Court is without prejudice to the parties to seek attorney fees in any further proceedings. All costs are adjudged against the Appellee.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    D. H. PENTON et al., Appellants, v. PHILLIPS PETROLEUM COMPANY et al., Appellees.
    No. 6896.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 17, 1979.
    Haley, Fulbright, Winniford, Bice & Davis, W. C. Haley, Waco, Roddy L. Harrison, Pecos, for appellants.
    Vinson & Elkins, Ben H. Rice, III, Houston, Stubbeman, McRae, Sealy, Laughlin & Browder, W. D. Browder, Jr., Cotton, Bled-soe, Tighe, Morrow & Dawson, P. C., Charles L. Tighe, Midland, Frank B. Kiser, Jr., Levelland, Ralph Logan, San Angelo, for appellees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

The question presented in this venue suit is whether or not Section 14 of Article 1995, Tex.Rev.Civ.Stat.Ann., is applicable. The trial Court held that it was not and granted the plea of privilege of Appellee Quintana Petroleum Corporation. We reverse.

Appellants brought this suit against Ap-pellee Quintana Petroleum Corporation and others in trespass to try title of certain lands in Reeves County, Texas. Only Quin-tana filed a plea of privilege and is involved in this appeal. It was stipulated that the land was located in the county of suit.

Section 14 of Article 1995, supra, requires venue in the county where the land is located if the nature of the suit is one for the recovery of lands or for damages to land. The nature of the suit is determined by allegations of the plaintiff’s petition. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); 1 McDonald, Texas Civil Practice sec. 4.22.2 at 488 (1965). Unless Quintana has brought itself within the holding of the Supreme Court in the case of James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959), the requirements of Section 14 are clearly met in this case by the stipulation of the location of the land and the statutory trespass to try title cause of action pled by Plaintiffs.

In that case, the Supreme Court held that the Court of Civil Appeals was in conflict with the cases of Smith v. Rampy, 198 S.W.2d 592 (Tex.Civ.App.—Amarillo 1946,

no writ), Morris Plan Bank of Fort Worth v. Ogden, 144 S.W.2d 998 (Tex.Civ.App.—Fort Worth 1940, no writ), and “similar cases” in holding that the suit was for “the recovery of lands” or “damages to land” under Section 14 of Article 1995. The Court said:

We approve the holding of the earlier cases that suits against former owners of land who have parted with all title prior to the filing of suit are not suits for ‘the recovery of lands’, or ‘damages to land’ within the meaning of Section 14, Article 1995, Revised Civil Statutes, 1925.

In the case before us, following presentation of evidence, the Court found “that Quintana Petroleum Corporation has never owned or claimed any title, legal or equitable, or interest in the land described in Plaintiffs’ pleadings; . . .” We are unable to agree with Quintana that such a finding brings it within the rule announced in James v. Drye. Plaintiffs’ petition does not allege that Quintana is a former owner who has parted with title prior to suit; rather, it alleges that Quintana presently claims some interest in the lands.

In James v. Drye, the plaintiffs’ petition established that title was not in issue between plaintiffs and the “James-defendants.” Plaintiffs sought a declaratory judgment and accounting of monies they had paid monthly for the use of certain land and facilities for recreational purposes; they alleged that their rights originated with the James-def endants, that the James-defendants had prior to trial sold the land to the other defendants, who were the present owners, and who were denying them the use of the land. Thus, there was no dispute as to title between the plaintiffs and James and no recovery of lands sought from the James-def endants by the allegations of the plaintiffs’ petition. In Smith v. Rampy, the plaintiff’s petition alleged that the defendant had parted with his title pri- or to suit. In our case, the Plaintiffs alleged that Defendant Quintana claims an interest in their land now. The title is in issue. In Smith v. Rampy, the Court said: “Rampy’s right to the relief for which he prayed under his trespass to try title suit had, therefore, become moot as to appellant before the suit was filed and its determination by the court was not necessary.” In Morris Plan Bank of Fort Worth v. Ogden, the Bank mistakenly had the sheriff levy on the land of Ogden for a judgment it had against a person of a similar name. Ogden brought suit for damages and removal of cloud on title for the wrongful levy. Prior to trial, the Bank filed an instrument in the deed records vacating and cancelling the levy, and prior to trial offered to quit claim any interest in the land. The Court held that the plaintiff’s case failed because the nature of his damages was not such “damages to land” as were recoverable under Exception 14 of Article 1995. In support of its decision, the Court cited cases where causes had been dismissed when the issues became moot prior to trial. In our case, the issue of title was not moot at the time of trial.

The case before us came to trial on the venue issue with Appellants contending that Quintana claimed some interest in the land and Quintana disputing that claim. Title is in issue then, and it is a suit for “the recovery of lands” and Section 14 of Article 1995 is applicable. Venue in the county of suit is proper. In essence, Quintana seeks to have the case transferred on the basis that it does not own or claim any interest in the land. There is no cause of action to be transferred, if in fact Quintana does not claim any interest in the land. The issue is one for determination on the trial on the merits. Quintana may be entitled to a dismissal, with proper pleadings, but it is not entitled to a transfer.

The judgment of the trial Court is reversed and the cause is remanded for a trial on the merits.


text:
    Michael D. BRUNO, Appellant, v. Wanda BRUNO, Appellee.
    No. 6102.
    Court of Civil Appeals of Texas, Waco.
    Oct. 18, 1979.
    Rehearing Denied Nov. 15, 1979.
    James E. Hope, Scott A. Sowell, Hope, Henderson, Hohman & Georges, San Antonio, for appellant.
    Hobart Huson, Jr., Kelly O’Connor, Law Offices of Hobart Huson, Jr., San Antonio, for appellee.
   HALL, Justice.

Appellant Michael D. Bruno and appellee Wanda Bruno are husband and wife. The proof shows they were married on October 3, 1947, and that they have had “a happy and harmonious marriage” since that date. On November 9, 1975, appellant sustained serious personal injuries when an automobile driven by appellee ran into him when he was standing in the garage of their home. At the time of the accident appellee was intending and attempting to relocate the vehicle in the driveway leading to the garage, but the vehicle suddenly accelerated and was propelled into the garage.

Appellant brought this suit against appel-lee for his damages. He alleged that she “accidentally and unintentionally ran over him due to certain negligence of hers” in several particulars including “accelerating the vehicle in the driveway in question to a high rate of speed,” and that his injuries were the proximate result of her negligence. He pleaded for $150,000.00 damages. Appellee answered with a general denial.

After the parties’ depositions were taken, appellee moved for summary judgment on the ground that appellant’s claim for damages based upon her negligence was barred by the interspousal tort immunity doctrine. The motion was granted, and judgment was rendered that appellant take nothing. He appeals. We affirm the judgment.

In his single point of error, appellant asserts that the interspousal tort immunity doctrine “is no longer a viable concept in view of recent case law and legislative enactments which have abrogated any and all policies supporting said doctrine.”

The doctrine of interspousal tort immunity was adopted in Texas in the case of Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886). It was thereafter followed in suits based upon both intentional and negligent torts until the case of Bounds v. Caudle, (Tex.1978) 560 S.W.2d 925, which was an action based upon the intentional shooting of the wife by her husband. In Bounds, after discussing the common law origin and basis of the interspousal tort immunity doctrine and recent legislative changes in the laws defining the marital relationship, and determining that those changes “invalidate the common law rationale for the doctrine, the fictional unity of the marriage relationship,” the court stated:

“Nevertheless, we must determine if the doctrine should be maintained as a matter of public policy. We recognize fully the importance of the family unit in our society and that peace and tranquility in the- home are endowed and inspired by higher authority than statutory enactments and court decisions. See Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971). However, we do not believe that suits for wilful or intentional torts would disrupt domestic tranquility. The peace and harmony of a home which has already been strained to the point where an intentional physical attack could take place will not be further impaired by allowing a suit to be brought to recover damages for the attack.”

Then, after noticing that in recent years the doctrine has come under severe attack in most jurisdictions considering it, and that it has also been subjected to harsh criticism by most legal writers, the court concluded its discussion of the rule by saying:

“Although most authorities recognize a distinction between a claim based on a negligent act and one based on an intentional tort, all agree that there is no sound basis for barring a suit for an intentional tort. We concur and accordingly we abolish the rule established in Nickerson [and Matson v. Nickerson, 65 Tex. 281], to the extent that it would bar all claims for wilful or intentional torts.”

In our case, appellant’s allegations that his injuries were caused by appellee’s negligent operation of the automobile, and not intentionally by her, are conclusively established by the summary judgment proof. The evidence also indicates that appellant and appellee are the insureds in a $100,-000.00 liability insurance policy.

Appellant recognizes that under the cases discussed above the doctrine of interspousal tort immunity is still applicable in negligence actions. His brief is devoted to a forceful argument for abolishing the rule or at least modifying it in negligence cases under facts like those before us. However, any changes in the application of the rule must be made by our Supreme Court. It is our duty to follow the decisions of that Court. Swilley v. McCain, (Tex.1964) 374 S.W.2d 871, 875.

The judgment is affirmed.