author: SPURLOCK, Justice.

text:
    William T. DEERING, Administrator of Estate of James Albert Deering, Deceased, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 18117.
    Court of Civil Appeals of Texas, Fort Worth.
    May 24, 1979.
    Rehearing Denied June 21, 1979.

      Duke & Jelinek, and David Duke, Arlington, for appellant.
    Brown, Herman, Scott, Dean & Miles, and Grant Liser, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

The estate of a workman appeals a trial court judgment setting aside an award of the Industrial Accident Board and providing that the estate take nothing. The worker’s compensation carrier had sued the estate to set aside the award the Industrial Accident Board made for compensation for a specific injury to the workman who later died. The question is whether under the facts of this case the trial court properly excluded as hearsay the decedent’s statement to another employee that he “bumped his leg back there”. The estate contends the statement is admissible under the res gestae exception to the hearsay rule.

We affirm.

James Deering was employed as a security guard by Smith Nightwatch Service, Inc. He was assigned duty at Southwest Airmo-tive in Euless, Tarrant County, Texas. His job included making inspection rounds and punching in at time clocks at various locations on the premises. Deering’s estate claims that on January 4, 1975 while making rounds Deering injured his left leg below the knee which aggravated a preexisting condition by causing several blood clots to break loose and block the flow of blood into his lower left leg. The insurer contends there is no evidence of any accidental injury while in the course and scope of his employment.

It is undisputed that Deering left work on January 4 and went to the hospital complaining of severe pain in the lower left leg and that emergency vascular surgery was performed in an attempt to restore blood circulation in the leg. The surgery was unsuccessful and on January 6, 1975 Deer-ing’s left leg was amputated above the knee. On April 27, 1975 Deering died from hepatitis which his estate contends was contracted from some allegedly contaminated blood he received during surgery. We express no opinion on the allegations concerning Deering’s death.

The Industrial Accident Board made an award of compensation on the estate’s claim for a specific injury, the loss of the left leg below the knee. The insurer filed this suit to have that award set aside and the estate counter-claimed for benefits for loss of a leg above the knee under the worker’s compensation act. After a trial the case was submitted to the jury on special issues and the jury failed to find that Deering received an injury to his left leg on or about January 4, 1975. The trial court rendered a judgment which set aside the Industrial Accident Board’s award and which provided that the estate take nothing.

The estate claims that the trial court erred in excluding a statement made by Deering to a Southwest Airmotive employee on January 4, 1975 before Deering went to the hospital. From the estate’s bill of exception the statement was as follows: “[H]e (Deering) said he bumped his leg back there.”

The estate claims that this should have been admitted under the res gestae exception to the hearsay rule. The insurer claims that the evidence was properly excluded because there was no evidence, independent of the deceased’s statement, which would support a finding of an injury.

The supreme court in Truck Insurance Exchange v. Michling, 364 S.W.2d 172, 173 (Tex.1963), stated the rule that the discretion of a trial court to admit evidence under the res gestae exception to the hearsay rule does not extend to admission of statements of allegedly res gestae in nature where there is no evidence of an occurrence other than the statement. In Michling the decedent’s wife testified that Michling, her husband, told her he hit his head on the iron bar across the seat of the bulldozer he was operating as it slipped off a hill. This was the only evidence offered to prove that Michling had sustained an accidental injury in the course and scope of his employment. The supreme court concluded that credit for trustworthiness could not be given to a narrative to prove the circumstances from which the narrative was to receive its trustworthiness. For a statement to be admissible as res gestae there must be independent evidence of the occurrence.

It is the estate’s position that there is independent evidence corroborating an accidental injury in the course and scope of employment. A thorough review of the evidence reveals that a Southwest Airmo-tive employee saw Deering on the job around midnight, January 4,1975. The employee saw Deering again about 1:00 a. m. while Deering was making rounds. The employee did not notice Deering limping or having any symptoms. The employee saw Deering again around 2:00 a. m. Deering was limping and appeared to be in pain. He was sweating profusely and was very pale. It was then that Deering made the statement to the employee that he had “bumped his leg back there”.

From the above we conclude that there is evidence that an accidental injury could have occurred. Indeed there is expert testimony in the record which indicates that trauma is probably the leading cause of blood clots breaking loose and traveling in the body causing vascular impairment. However, the supreme court in Hartford Accident and Indemnity Company v. Hale, 400 S.W.2d 310, 311 (Tex.1966), decided that evidence which shows only that an occurrence could have occurred is insufficient to support admissibility of the statements made in that case and offered as res gestae. There is no evidence in this case concerning how or where Deering was injured. Further, the medical expert testified that hypertension, high blood pressure, or mere walking could have caused the blood clots to break loose. Therefore, we conclude that the evidence independent of Deering’s statement is insufficient to support a finding of an accidental injury in the scope of employment. Thus it is insufficient to give credit to the statement making it admissible under the res gestae exception to the hearsay rule. The trial court correctly excluded the statement.

The estate also claims that Deer-ing’s statement should have been admitted under the declaration of present bodily condition exception to the hearsay rule. It is true as a general rule that statements made concerning present bodily condition such as complaints of physical pain, are admissible. However, this exception to the hearsay rule only applies to statement regarding the de-clarant’s physical condition. Declarations descriptive of external events such as crimes, accidents, or other occurrences which cause injury are inadmissible when offered for proof of the external event. 1 C. McCormick and R. Ray, Texas Evidence § 843 (2d ed. 1956), at 627.

Note that the statement excluded was that Deering had “bumped his leg back there”. We conclude that this clearly relates to an external event which allegedly produced the bodily condition of which he complained.

We further note that the court excluded testimony of the Southwest Airmo-tive employee that Deering stated that his leg hurt. This was error. However, we conclude that it was harmless because even if admitted the fact that Deering’s leg hurt would not be probative of whether he sustained an accidental injury in the course and scope of his employment.

The statement regarding the bumping of the leg was not admissible as a declaration of present bodily condition. The trial court properly excluded it.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: GUITTARD, Chief Justice.

license: Public Domain

text:
    Christine Tweedy DUNCAN, Appellant, v. William TWEEDY, Appellee.
    No. 22985.
    Court of Civil Appeals of Texas, Dallas.
    May 25, 1979.

      Wm. A. Bratton, III, Dallas, for appellant.
    James H. Cummings, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   GUITTARD, Chief Justice.

The question for decision is the sufficiency of an agreement to postpone the ruling on a motion for new trial under rule 329b(3) of the Texas Rules of Civil Procedure. We hold that a letter to the judge signed by appellant’s counsel stating that both parties had agreed to postpone the ruling to a certain date is not sufficient and that a written agreement to the same effect signed by both counsel and filed after expiration of the forty-five day period allowed by the rule is ineffective.

Our clerk has previously declined to file the transcript tendered by appellant on the ground that the bond was not filed within thirty days after the motion for new trial was overruled by operation of law, as required for perfection of the appeal by rule 356 of the Texas Rules of Civil Procedure. Appellant now tenders a supplemental transcript containing a written agreement of counsel to postpone ruling on the motion for new trial to the date specified in the earlier letter from appellant's counsel to the judge. This agreement, however, was not filed with the clerk of the trial court within the forty-five day period. No order overruling the motion for new trial appears in either transcript. If the agreement to postpone the ruling is effective, the motion was overruled by operation of law on the date specified in ‘the agreement and the bond was filed in good time.

Appellant contends that the agreement to postpone is effective because the letter stating the agreement was filed within the forty-five day period. This contention is untenable because, as held in Hulsey v. Keel, 541 S.W.2d 656 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.), rule 329b(3) requires that an agreement signed by both parties be filed within that period. Appellant seeks to distinguish Hulsey on the ground that in that case the appellee’s attorney denied the agreement and, consequently, the court applied rule 11 of the Texas Rules of Civil Procedure, which requires agreements of counsel to be in writing. Appellant points out that in the present case appellee’s counsel has signed an agreement, which has been filed and appears in the supplemental transcript.

We cannot agree that the agreement subsequently filed satisfies the requirements of rule 329b(3). This rule requires that the agreement be filed before expiration of the forty-five day period. If the agreement is not filed within that time, the motion is overruled by operation of law after forty-five days and any agreement filed later is a nullity. Texas Employers’ Ins. Ass’n v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961); Cardona v. Texas Employers’ Ins. Ass’n, 566 S.W.2d 78 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); Longview Transit Co. v. Ferchill, 312 S.W.2d 407, 409 (Tex.Civ.App.—Texarkana 1958, no writ). The subsequent agreement does not meet the requirements of the rule because jurisdiction cannot be conferred by agreement, and neither can lack of.jurisdiction be waived. Haase v. Greutzmacher, 521 S.W.2d 666, 667 (Tex.Civ.App.—San Antonio 1975, no writ).

In support of the contention that a subsequently-filed agreement to postpone may be effective, appellant cites Hogg v. Washington National Ins. Co., 495 S.W.2d 25 (Tex.Civ.App.—Tyler 1973, no writ). In that case, however, the signed agreement was addressed to the clerk and deposited in the mail before expiration of the forty-five day period and, for that reason, was held to be filed in proper time under the provisions of rule 4 of the Texas Rules of Civil Procedure. There is no contention that rule 4 is applicable in this case.

In conclusion, we observe that this case is another example of how an appeal may be lost because of obscure jurisdictional requirements that often serve as hazards for the unwary. The provision in rule 329b(3) for postponement of the ruling on a motion for new trial is especially fraught with hazard because it contains several requirements, each of which is a matter of jurisdiction if the postponement is relied on to extend the time for perfecting the appeal. In our opinion, the appellate rules should be simplified by reducing such hazards, and one desirable simplification would be to eliminate the provision for an agreed postponement in rule 329b(3), which serves little purpose but delay in most cases.

Appellant’s motion to file the transcript and supplemental transcript is overruled, and the clerk is directed not to accept any part of the record for filing.

      . Other situations in which the appeal may be lost because of noncompliance with various provisions of rule 329b(3) include:
      (1) Agreement dictated to court reporter. Texas & N.O.R.R. v. Arnold, 388 S.W.2d 181 (Tex.1965);
      (2) Agreement recited in order overruling motion. Hester v. Keefer, 497 S.W.2d 642 (Tex.Civ.App.—Waco 1973, no writ);
      (3) Agreement postponing hearing rather than decision. Texas Pac. Indem. Co. v. Building Material Distributors, Inc., 502 S.W.2d 922 (Tex.Civ.App.—Dallas 1973, no writ);
      (4) Agreement failing to specify date for decision. Moore v. Decuir, 286 S.W.2d 471 (Tex.Civ.App.—Galveston 1956, writ refd n. r. e.);
      (5) Agreement postponing decision to specified date “at the earliest practicable date thereafter.” Holland v. Foley Bros. Dry Goods Co., 324 S.W.2d 430 (Tex.Civ.App.—Texarkana 1959, writ refd n. r. e.).


author: PHILLIPS, Chief Justice.

text:
    BEACON NATIONAL INSURANCE COMPANY et al., Appellants, v. TEXAS STATE BOARD OF INSURANCE et al., Appellees.
    No. 12967.
    Court of Civil Appeals of Texas, Austin.
    May 30, 1979.
    Rehearing Denied June 20, 1979.

      Joe E. Shaddock, Wichita Falls, for appellants.
    Mark White, Atty. Gen., Catherine Fryer, Asst. Atty. Gen., Austin, for State Bd. of Ins.
    Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for Texas Catastrophe Property Ins. Assn.
   PHILLIPS, Chief Justice.

Appellants, Beacon National Insurance Company and First Preferred Insurance Company, contend that the Texas Catastrophe Property Insurance Association (commonly referred to as the Cat Pool) is not being operated fairly and in a nondiscriminatory manner. Appellants have been unsuccessful before the Cat Pool Board of Directors and in appeals to the State Board of Insurance and district court of Travis County. Appellants have now perfected their appeal to this Court.

We affirm.

The Cat Pool was created by Texas Insurance Code Ann. art. 21.49 (Supp.1978). Its membership consists “of all property insurers authorized to transact property insurance in this State, except those companies that are prevented by law from writing coverages available through the pool on a Statewide basis.” Id. § 4(a). The purpose of the enactment is to provide insurance for property owners in the “Catastrophe Area” of Texas where hurricane risk is great. The State Board of Insurance has determined that the catastrophe area is comprised of the first tier of counties along the Gulf coast.

Member insurance companies are assigned a percentage share of expenses, profits and losses of insurance written by the Cat Pool based upon the total amount of premiums written by the member in Texas. Members of the Cat Pool are “entitled to receive credit for similar insurance voluntarily written in the area designated by the Board [the Gulf coast counties] and its participation in the writings in the Association shall be reduced in accordance with the provisions of the plan of operation.” Id. § 5(c).

The plan of operation of the Cat Pool was required by the statute to be prepared by a temporary board of directors of the Pool, appointed by the State Board of Insurance. The permanent board of directors is elected in the manner set out in the plan of operation. Each one of five directors is chosen from one of five different insurance organizations. The remaining four directors are elected at large from the overall membership of the Cat Pool. It is important to note that the plan of operation of the Cat Pool was approved by the State Board of Insurance.

Appellants’ complaint in this case is that the Cat Pool is being administered unfairly and discriminatorily. It is appellants’ contention that this is shown by the fact that the very large member companies that have representatives on the board of directors have almost a zero percent participation in Cat Pool insurance writings. The reason these companies have such a low percentage share is because they avail themselves of the authorized credit for insurance voluntarily written in the catastrophe area. Appellants point to two actions that would remedy the alleged discriminatory operation of the Cat Pool, namely, reduction of the size of the catastrophe area or a reduction of the credit for voluntarily written insurance in the catastrophe area to something less than a dollar-for-dollar credit.

“Catastrophe Area” is defined to mean a city or county in which windstorm and hail insurance “is not reasonably available to a substantial number of owners of insurable property . . . Tex.Rev.Civ.Stat. Ann. art. 21.49 § 3(h) (Supp.1978). This determination is made by the State Board of Insurance, not the Cat Pool or its board of directors. In addition, the designation of the catastrophe area may be revoked by the State Board of Insurance. The Cat Pool may also make a determination that “insurance is no longer reasonably unavailable” and it may then request the State Board to revoke the designation. Id. Appellants contend that the Cat Pool’s failure to make such a request amounts to arbitrary and discriminatory conduct with respect to appellants. The only evidence offered by appellants to show that property insurance in any cities or counties within the catastrophe area is now readily available is the fact that Nueces and Jefferson Counties together account for only twenty percent of the writings of the Pool.

The basis for appellants’ complaint is, apparently, that the larger insurance companies, which are represented on the board of directors of the Cat Pool, are able to write many more voluntary insurance policies in the catastrophe area than are appellants. These larger insurers are thereby able to select better property risks and at the same time reduce participation in the Cat Pool with its poorer risk policies. Appellants’ argument is that the Cat Pool board of directors is acting unfairly by not taking steps to offset this advantage of the larger insurance companies.

It is obvious that the advantage results from the statutorily authorized credit for voluntary insurance. Appellants insist that they are precluded from benefiting from the credit because mortgage lenders will not accept insurance written by appellants. This is so, they claim, because their financial rating is not as high as the other larger insurers. We do not believe this of itself is sufficient to prove that the Cat Pool is being operated unfairly. The large insurers’ representatives on the Cat Pool board of directors are not obligated to make changes in the Cat Pool’s operation simply because they are able to benefit from the credit provision of the statute.

Furthermore, appellants’ witnesses testified that mortgage lenders in the catastrophe area do in fact accept insurance written by appellants. An independent insurance agent in Galveston County could think of only one mortgagee who refused to approve appellants. A Beaumont agent testified that she did a substantial volume of business for appellants. A director of Beacon National stated that mortgage lenders refuse to use appellants’ policies but that the problem is statewide and not limited to the catastrophe area. Finally, the executive vice-president of appellants testified that probably fifty percent of mortgage lenders would accept appellants’ policies in the catastrophe area.

We hold that there was substantial evidence to uphold the agency action.

Appellants contend in their second point of error that the trial court erred in holding the substantial evidence rule applied in this case. The contention is based primarily on the fact that the manner of review provided by statute, Tex.Ins.Code Ann. art. 1.04(f) (1963), is by trial de novo and the substantial evidence rule, applied by the trial court, was expressly inapplicable. Resolution of this issue involves consideration of the doctrine of separation of powers.

The Texas Constitution provides that the powers of government shall be divided into three distinct departments: legislative, executive and judicial, and that except in instances expressly permitted by the Constitution, “no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others . . . .” Tex. Const, art. II, § 1. Pursuant to this provision, legislative acts requiring judicial review of legislative or executive determinations of agencies by way of a trial de novo have been declared unconstitutional. Key Western Life Insurance Company v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961). In other words, if a court reviews such agency action de novo, under the preponderance of the evidence rule, the court trespasses on that area of our government reserved to the legislature.

We must, therefore, decide in this appeal whether appellants’ lawsuit involves the exercise of a legislative or judicial function by the agency. “ ‘The action of an administrative body or officer is adjudicatory in character if it is particular and immediate, rather than, as in the case of legislative or rule-making action, general and future in effect.’ ” Id. 350 S.W.2d at 847. A major consideration in making the necessary determination is whether the agency’s action concerns only the parties who are immediately affected or a wider group of those subject to the authority of the agency or even the public as a whole. Texas State Board of Health v. Harrison Clinic Hospital, 410 S.W.2d 181 (Tex.1966); Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (Tex.1964); Chemical Bank and Trust Company v. Falkner, 369 S.W.2d 427 (Tex.1963).

In our ease appellants challenge the designation of the catastrophe area and the credit for voluntarily written insurance, both of which have a much broader application and effect than upon appellants’ business. As a result, we conclude that the question is legislative in nature, and, as Article 1.04(f) requires a de novo review on appeal to the courts, if applied in this case, it would violate Tex.Const. art. II, § 1. The proper judicial review is under the substantial evidence rule, as the trial court correctly held. See Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959); Farmers and Merchants Insurance Company v. State Board of Insurance, 321 S.W.2d 354 (Tex.Civ.App.1959, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.


author: HUMPHREYS, Justice.

text:
    B_ J_ M_, Appellant, v. Marjorie S. MOORE, Supervisor, Texas Department of Public Welfare for the State of Texas, Appellee.
    No. 19910.
    Court of Civil Appeals of Texas, Dallas.
    May 30, 1979.

      Richard Bosworth, Greenville, for appellant.
    Fredrick C. Shelton, Jr., County Atty., Hunt County, Greenville, Richard A. Bea-com, Jr., Guardian Ad Litem, Greenville, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

A mother appeals from the trial court’s termination of her parental rights to her two children under Tex. Fam. Code Ann. § 15.02(1)(D) (Vernon Supp. 1978-1979), which allows termination if the court finds the parent has “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” The issue is whether the Department of Public Welfare produced any evidence that the mother, who is mentally retarded, “knowingly” neglected her children. We affirm.

Appellant contends first, the court erred in finding her mildly mentally retarded because the evidence conclusively proved as a matter of law that she was so retarded as to be mentally incompetent. Second, she claims that as a matter of law the evidence reveals she does not havé the requisite intent to have her parental rights terminated under section 15.02(1)(D). Because appellant did not have the burden of proof below, her points are really “no evidence” points. In considering these legal sufficiency points we must view the record in the light most favorable to the findings of the trial court. D_F_ v. State, 525 S.W.2d 933 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

The trial court made findings of fact and conclusions of law. Findings most pertinent to the issues presented on appeal are that appellant “is mildly mentally retarded,” “cannot be taught ‘mothering skills’,” and “cannot meet the physical needs and requirements of raising her children.” Other findings list the condition of the family’s apartment and the children. The undisputed evidence shows that appellant keeps an unsanitary and cluttered apartment. The children have not been properly fed and have not received proper attention in order to learn to walk and talk normally. Psychological tests indicate they are deprived and in need of better care to develop normally. The court concluded as a matter of law that appellant knowingly allowed the children to remain in conditions or surroundings which endangered their physical and emotional well-being, and that termination would be in the best interests of the children.

Appellant filed only a partial statement of facts, which she designated an agreed statement of facts on appellant’s mental competency. Included was the testimony of a psychiatrist at Terrell State Hospital. He stated that she could not be taught mothering skills, that she was medically incompetent and could not take care of herself, that she was incompetent to provide the children’s physical needs, and that the child’s best interest would be to take them from their mother’s custody. He also testified that appellant had an IQ of 41, which he interpreted as “moderate mental retardation.”

The Department of Public Welfare’s only other witness was a staff psychologist at Greeenville Outreach Center. He testified that in his professional opinion, appellant could not be taught mothering skills, that she was operating intellectually as a six-year old, and that an IQ of 41 would be consistent with his observations of appellant.

The psychiatrist’s evaluation of appellant as “moderately mentally retarded” was the only expert evaluation in the record of her level of retardation. We cannot hold that this evaluation was wrong as a matter of law because we are not qualified to judge what degree of mental retardation would be classified as “moderate.” We can, however, look at the evidence as it bears on appellant’s second point, her ability to “knowingly” place or allow the children to remain in dangerous conditions.

We first note appellee did not file a brief in this appeal. Therefore, we can accept appellant’s fact statements, not contested by appellee, as true without examining the record. Tex. R. Civ. P. 419. Appellant refers to the partial statement of facts as an agreed statement of facts “of all the testimony at the trial relative to the mental capacity of the mother.” We accept this as true.

While the trial judge did not make any findings of fact of appellant’s knowledge, he did conclude as a matter of law that appellant knowingly placed or allowed her children to remain in dangerous conditions. A parent’s knowing neglect is a fact which must be established to terminate under section 15.02(1)(D). We consider this conclusion of law as a finding of fact. McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016, 1020 (1950).

The partial statement of facts filed in this case was an agreed statement only as to evidence of appellant’s mental capacity. Although the statement of facts reveals this mother’s low level of mental ability, we do not hold that this evidence, as a matter of law, negates appellant’s ability to knowingly neglect her children. We cannot assume that a person with the mental capacity of a six-year-old child is incapable of knowledge that the conditions under which small children are living are dangerous to their physical and emotional well-being. In addition, since appellant filed only a partial statement of facts, we must presume that there was other evidence which supports the finding of knowing neglect. Englander Co. v. Kennedy, 424 S.W.2d 305, 308 (Tex.Civ.App.-Dallas, 1968), writ ref’d n.r.e. per curiam, 428 S.W.2d 806 (Tex.1968).

Affirmed.


author: DODSON, Justice.

text:
    Danny Ray HARVILLE, Appellant, v. Solomon E. SIEBENLIST, Appellee.
    No. 8981.
    Court of Civil Appeals of Texas, Amarillo.
    May 30, 1979.
    Rehearing Denied June 20, 1979.

      Stokes, Carnahan & Fields, Thomas D. Farris, Amarillo, for appellant.
    Lemon, Close, Atkinson, Shearer & McCutcheon, Otis C. Shearer, Booker, for appellee.
   DODSON, Justice.

Plaintiff Solomon Siebenlist sued Danny Ray Harville for personal injuries, property damage, and exemplary damages arising out of an automobile accident. The trial court rendered judgment based on jury findings for plaintiff. Defendant appeals. Reversed and remanded.

The accident occurred on a misty Sunday afternoon, March 27,1977, in Follett, Texas. It is undisputed that the streets were slick. Defendant was driving around town in his 1976 Pontiac TransAm automobile equipped with a four speed transmission and a 455 cubic inch engine. Plaintiff’s grandson testified that he had seen defendant twice within the thirty minutes prior to the accident speeding and gunning his car. Immediately before the collision defendant proceeded south on Main Street, made a u-turn, and accelerated as the car came out of the turn. The rear end of the car slid to the right, the front end to the left, and defendant lost control of his car. fie took his foot off the accelerator and attempted to control the ear without braking. He hit the rear end of plaintiff’s parked car in which plaintiff was sitting. The impact knocked plaintiff’s car into another car parked immediately to the north.

The speed of defendant’s car immediately before impact is disputed. Defendant testified that he was not going over fifteen miles per hour. Plaintiff and his grandson, a witness, testified that defendant was going about forty miles per hour. Defendant testified that he had been taught that the brakes should not be applied during a skid.

The jury found that specified acts or omissions by defendant constituted negligence, that each of these acts or omissions was a proximate cause of the occurrence in question, and that plaintiff incurred actual damages totaling $5,414.15. The jury further found that defendant operated his vehicle in a heedless and reckless disregard of the rights of others and that this action was a proximate cause of the accident. Based on this finding of gross negligence, the jury awarded exemplary damages of $10,000.

Defendant does not question the findings of ordinary negligence or the award of actual damages. He attacks the legal sufficiency of the evidence to support the submission of the gross negligence issue, the alleged global submission of the gross negligence issue, the legal and factual sufficiency of the evidence to support the jury findings of gross negligence and exemplary damages, and the submission of an allegedly erroneous exemplary damage issue.

GROSS NEGLIGENCE

“Heedless and reckless disregard,” or gross negligence, has been defined as that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it. McPhearson v. Sullivan, 463 S.W.2d 174 (Tex.1971); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); Missouri Pac. Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, 411 (1888). In determining whether a given act is so far heedless or reckless as to constitute gross negligence, the court must look to the surrounding conditions and circumstances at the time and place the act was committed. Harbin v. Seale, supra, at 593; Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820 (1958).

Defendant plead guilty to a complaint stemming from the accident which stated, in part, that he unlawfully drove “a vehicle, to-wit, 1976 Pontiac Transam automobile, in a willful or wanton disregard of the rights or safety of others, at a speed so as to endanger, or which was likely to endanger persons or property, against the peace and dignity of the State” (emphasis added). “Willful or wanton disregard” has been defined as an act done with the specific intention to injure the person that was injured, or an act done with such utter recklessness as to indicate a disregard of consequences. This definition encompasses “heedless and reckless disregard.” Thus, the plea of guilty is an admission of heedless and reckless disregard of the rights or safety of others with regard to the speed at which defendant operated his vehicle. See Isaacs v. Plains Transport Co., 367 S.W.2d 152, 153 (Tex.1963).

In addition to the admission, there was testimony that defendant was traveling approximately forty miles per hour immediately before impact, that the accident occurred on an afternoon in March on Main Street in Follett, and that the streets were slick due to misting rain. Where an issue has some support in the evidence, although the great weight and preponderance of the evidence may be the other way, the trial judge may not refuse to submit the requested issue. Gulf, C. & S. F. Ry. Co. v. Been, 158 Tex. 466, 312 S.W.2d 933, 937, cert. denied, 358 U.S. 874, 79 S.Ct. 111, 3 L.Ed.2d 105 (1958). We conclude that the evidence raises the issue of gross negligence with regard to the speed at which defendant operated his vehicle.

GLOBAL SUBMISSION

Plaintiff plead, and the jury found, that defendant was negligent in his acceleration, in his speed, in failing to keep his vehicle under proper control, in failing to apply his brakes, in failing to direct his vehicle so as to avoid the collision, in failing to keep his vehicle completely within the right half of the roadway, and in driving in willful and wanton disregard for the safety of persons and property. The jury further found each of these acts or omissions to be a proximate cause of the occurrence in question.

Plaintiff plead that defendant was grossly negligent in propelling his automobile with excessive acceleration, at an excessive rate of speed, and in failing to brake his car. The evidence raised the issue of gross negligence only as to speed.

The trial court submitted gross negligence in the following manner:

Do you find that the manner in which Danny Ray Harvill (sic) operated his vehicle on the occasion in question was a heedless and reckless disregard of the rights of others affected by it?
“Heedless and reckless disregard” means more than momentary thoughlessness, inadvertance, or error of judgment. It means such an entire want of care as to indicate that the act or omission in question was the result of conscious indifference to the rights, welfare, or safety of the persons affected by it.

Answer: “We do” or “We do not.” Defendant properly objected to this broad submission.

As submitted, this issue did not restrict the jury’s determination of gross negligence to a specific act plead which was raised by the evidence. The jury was allowed to make its own determination of what it considered to be gross negligence. This is contrary to the Texas Rules of Civil Procedure which provide that special verdict submissions shall be only upon controlling issues that are raised “by the written pleadings and the evidence.” Tex.R.Civ.P. 277, 279.

In Scott v. Atchison, T. & S. F. R. Co., 572 S.W.2d 273, 277 (Tex.1978), the Court stated:

Under Rule 277, the trial court has the discretion to submit an issue broadly, including the combination in one issue of several acts or omissions which may be alleged to constitute negligence. However, when one or more pleaded acts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pleaded, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error (emphasis added).

In the case at bar, plaintiff’s petition alleged that defendant was grossly negligent in the operation of his vehicle in three regards. The evidence raised the issue of gross negligence only with regard to the speed at which defendant operated his vehicle. Furthermore, plaintiff plead, the evidence supported, and the jury found that defendant was negligent in seven distinct acts or omissions, each being a proximate cause of the occurrence in question. Under these circumstances, the trial court erred in broadly submitting the gross negligence issue over defendant’s proper objection. In view of the wide variance between the pleadings and unplead facts and circumstances from which the jury could have inferred that defendant was grossly negligent, such error was reasonably calculated to and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434; see also Scott v. Atchison, T. & S. F. R. Co., supra.

In summary, we sustain Harville’s fifth point of error challenging the global submission of gross negligence. Our view of this point is dispositive of this appeal; therefore, we deem it unnecessary to further discuss Harville’s remaining points. Accordingly, the judgment of the trial court is reversed and the cause is remanded for a new trial.


author: KEITH, Justice.

text:
    Ex parte Alton CHOATE.
    No. 8326.
    Court of Civil Appeals of Texas, Beaumont.
    May 31, 1979.
    Robert P. Walker, Port Arthur, for appellant.
    Terry Doyle, Port Arthur, for appellee.
   KEITH, Justice.

This is a continuation of a domestic relations dispute between Alton Choate and his former wife, Juanita Choate, and for convenience we will refer to the parties by their Christian names.

Alton has invoked our original jurisdiction seeking relief from an order adjudging him to be in contempt of court for the violation of several provisions in a final decree of divorce. We granted leave to file the petition, admitted Alton to bail pending a hearing, and now review the contempt proceeding.

The nunc pro tunc judgment which partitioned the community property — after the granting of the divorce — became final because no appeal was perfected therefrom. This judgment contained several paragraphs material to our disposition of this cause, the decretal paragraph containing these provisions:

“Petitioner Juanita Holley Choate shall receive as her sole and separate property the following, and Respondent is hereby divested of all right, title and interest in and to such property:

1. The home located at 2911 Nashville, Nederland, Jefferson County, Texas, more specifically described as Lot 19, Block 13, Helena Park IV subdivision to the City of Nederland, Jefferson County, Texas;
2. All contents of home [not material to this proceeding];
3. The Oldsmobile automobile;
4. 150 shares of Texaco stock, now held in the Texaco Savings Plan, in the name of Respondent [Alton];
5. [Division of pension rights — not material to this proceeding].”

It was ordered further that Juanita’s firm of attorneys “be and is hereby awarded the sum of $3,750.00 for legal services rendered. Said judgment is hereby awarded against Respondent, Alton Choate, for which let execution issue.”

Another paragraph read:
“It is decreed that both parties shall execute all instruments necessary to accomplish final execution and disposition of this judgment.”

Finally, all costs were adjudged against our Relator “for which let execution issue.”

After this judgment became final, Juanita filed her motion seeking an order holding Alton in contempt of court for his failure and refusal to comply with the terms of the decree. After notice, a hearing was held wherein Alton, represented by counsel, was called as an adverse witness. At the conclusion of the hearing, Alton was found guilty of contempt upon several specifications and ordered confined in jail for a period of one day and until he purged himself of contempt. We set out the four separate paragraphs of the order:

1. “Sign and execute any required instruments necessary to convey 150 shares of Texaco stock to Juanita Holley Choate, and sign and execute any required instruments necessary to transfer title of the 1978 Oldsmobile automobile from Respondent to Mov-ant, Juanita Holley Choate.”
2. “Sign and execute a deed to the home located at 2911 Nashville, Neder-land, Jefferson County, Texas, more particularly described in the judgment herein, said deed being necessary to convey title of the property from Respondent to Movant, Juanita Holley Choate.”
3. “Pay the sum of $89.00 to the District Clerk of Jefferson County, Texas, for costs incurred in the divorce proceedings in this cause.”
4. “Pay the sum of $3,750.00, for legal services rendered, to the law firm of Provost, Umphrey, Doyle & McPherson [Juanita’s attorneys].”

We will consider each of the adjudications separately. As to the first, we point out that it contains two separate acts on the part of Relator:

(1) “Sign and execute any required instruments necessary to convey 150 shares of Texaco stock . . . and”
(2) “[S]ign and execute any required instruments necessary to transfer title of the 1978 Oldsmobile . .

We note that even in the contempt order authorizing the imprisonment, there is no description of the particular action required of Alton. He is imprisoned until he signs the “required instruments”. Moreover, this order can have as its base only the language in the decree requiring the parties to “execute all instruments necessary to accomplish final execution and disposition of this judgment.”

We are of the opinion that the first section of the order holding Alton in contempt is void. Neither the judgment nor the order holding him in contempt spelled out specifically just what Alton was to sign.

In Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967), the Court reviewed the cases on the subject and held:

“It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.”

Slavin has been followed by many courts and its basic holding has not been challenged.

Indeed, it was followed in Ex parte Carpenter, 566 S.W.2d 123, 124 (Tex.Civ.App.—Houston [14th Dist.] 1978, original proceedings), where the relator was adjudged in contempt for failure to comply with a decree requiring that he “timely pay” medical expenses, the court holding:

“Relator urges that the medical expenses provision of the divorce decree is vague and indefinite. We agree. The word ‘timely’ is imprecise and subjective; it does not readily inform the person of the duty imposed upon him. Such an order is unenforceable and cannot support a contempt judgment. Ex parte Slavin, 412 S.W.2d 43 (Tex.Sup.1967).”

Alton can secure his release only by signing the “required instruments” and this is as vague and indefinite as the Boy Scouts’ motto, “Be Prepared.” The words of the judgment and the contempt order are so vague and imprecise that the order of incarceration is void as to the first finding and adjudication.

We also note that our Supreme Court in Ex parte Prickett, 159 Tex. 302, 320 S.W.2d 1 (1959), discharged an applicant who had been found guilty of contempt of court for failure to deliver certain shares of stock in an oil company to his former wife in accordance with the divorce decree. It was held that the trial court lacked authority to enforce its judgment by contempt proceedings. For this additional reason, such order of commitment is void.

Under the same line of authorities, and for the same reasons, the second adjudication- — requiring Alton to “[s]ign and execute a deed” to the home place — is void. It is readily apparent that no particular type of deed is mentioned. Would compliance be attained by delivery of a quitclaim deed? — Or perhaps, by a special warranty deed? Or, is Alton required to execute a general warranty deed when there may be an outstanding purchase money lien on the property? Again, as noted earlier, the command is imprecise and vague — and, more importantly, void.

Ex parte Myrick, 474 S.W.2d 767, 769 (Tex.Civ.App.—Houston [1st Dist.] 1971, original proceedings), found the court holding void an order of commitment for failure to “execute all notes and instruments, to carry this agreement into full force and effect” by the refusal to execute a specific trust agreement. Following Ex parte Sla-vin, supra, the court held the commitment order to be void because of the indefinite nature of the original decree. We follow the holdings in Slavin and Myrick. A person may not be deprived of his liberty under the vague and imprecise language used in the judgment.

In fairness to the parties, we call attention to this language used in Schwartz v. Jefferson, 520 S.W.2d 881, 888 (Tex.1975):

“After that judgment became final, Judge Jefferson had no authority to change its provisions relating to the property adjudication. He did have the authority, however, to make orders necessary to carry the judgment into execution in a manner which was consistent with the provisions and finality of the judgment.”

The third and fourth adjudications have common deficiencies: each is based upon language in the original decree which ordered the costs of court and attorney’s fees adjudged against Alton, and in each instance the decree ordered execution to issue. Chief Justice Greenhill, in his article entitled “Habeas Corpus Proceedings in the Supreme Court of Texas”, 1 St. Mary’s L.J. 1, 12-13 (1969), used these words:

“In an ordinary suit, when the court orders a defendant to pay a plaintiff a $5,000 note ‘for which let execution issue,’ the order cannot be enforced by contempt.”

The portion of the order holding Alton in contempt for failure to pay Juanita’s attorney’s fees is void under the holding in Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523, 525-526 (1961), where the Court held:

“The court has the power on the final disposition of the case to award attorneys’ fees to the wife, the reasonableness of which are to be determined by the trier of the facts, and they are then entered as a part of the final judgment. Even then there is no authority for the judge to summarily order them paid or attempt to enforce that order by contempt proceedings.” (emphasis supplied)

Accord, McCauley v. McCauley, 374 S.W.2d 719, 723 (Tex.Civ.App.—Waco 1964, writ dism’d).

There was no showing made that the attorneys’ fees or court costs were payable out of property in possession of Alton at the time of the entry of the nunc pro tunc judgment. To allow such enforcement by imprisonment for contempt would amount to imprisonment for debt in violation of Tex.Const, art. I, § 18. Ex parte Duncan, 462 S.W.2d 336, 338 (Tex.Civ.App.—Houston [1st Dist.] 1970, original proceedings). Cf. Ex parte Harwell, 538 S.W.2d 667, 671 (Tex.Civ.App.—Waco 1976, original proceedings).

In habeas corpus proceedings, we are limited to a determination of whether or not the order of commitment is void. Ex parte Hosken, supra (480 S.W.2d at 20), and authorities therein cited. Having held the order void as to each of the four separate adjudications, we forego a discussion of all other questions apparent on the face of the record.

It is the order of this Court that our Relator, Alton Choate, be discharged from compliance with the contempt judgment entered on the 12th day of April, 1979; and that the sureties be released from all liability upon his appearance bond. Ex parte Filemyr, 509 S.W.2d 731, 734 (Tex.Civ.App.—Austin 1974, original proceedings).

      . This is the third time we have reviewed facets of this case. In Choate v. Choate, 576 S.W.2d 656 (Tex.Civ.App.—Beaumont 1978, no writ) [Choate I], we reversed the judgment of the trial court which had partitioned the community property in an action wherein the divorce had been denied. Our second exposure to the case was in an original proceeding wherein Alton sought a writ of prohibition to prevent the trial court entering a judgment nunc pro tunc in the original action. For reasons articulated in Choate v. Choate (Tex.Civ.App.— Beaumont 1979, original proceedings, not yet reported, our No. 8206-A, January 25, 1979) [Choate II], the relief sought was denied.

      . Alton has no point of error complaining that he was called upon to give self-incriminating testimony at the hearing. However, we call the attention of counsel and the trial court to language in Ex parte Werblud, 536 S.W.2d 542, 547 (Tex.1976), extending to criminal con-temnors their constitutional privilege against self-incrimination. See also Ex parte Hosken, 480 S.W.2d 18, 22 (Tex.Civ.App.—Beaumont 1972, original proceedings).


author: CLAYTON, Justice.

text:
    Nelson Joseph GASPARD, Jr., et al., Appellants, v. Donna Marie GASPARD, Appellee.
    No. 8264.
    Court of Civil Appeals of Texas, Beaumont.
    May 31, 1979.
    C. C. Young, Paul Buchanan, Nederland, for appellants.
    Stan Pfeiffer, Houston, for appellee.
   CLAYTON, Justice.

This is a suit involving the managing conservatorship of a minor child. Appellant, Nelson Joseph Gaspard, Jr., filed suit for divorce from Donna Marie Gaspard and for his appointment as managing conservator of his minor child. Appellee, Donna Marie Gaspard, filed her cross-action seeking a divorce and managing conservator-ship. Thereafter, Mr. and Mrs. Nelson Joseph Gaspard, Sr., paternal grandparents of the child, intervened in such suit seeking managing conservatorship of such child.

All material issues were either determined by stipulations or were submitted to the court by agreement, except the issue concerning the appointment of a managing conservator. The case was tried before a jury, the sole issue submitted being, in effect, whether the grandparents or the mother should be appointed managing conservator of the minor child. The jury found that the mother should be so appointed. The court entered judgment granting Donna Marie Gaspard a divorce and appointing her as managing conservator of her minor child. From this judgment, petitioner, Nelson Joseph Gaspard, Jr., and the grandparents, intervenors, have perfected this appeal.

Appellants’ first point of error is that “[t]he 58th Judicial District Court was without jurisdiction in this ease because jurisdiction was never acquired pursuant to Sections 11.05 and 11.06 of the Texas Family Code.” This case was originally filed in the Court of Domestic Relations for Jefferson County, but such court is now the 317th District Court of Jefferson County, pursuant to the provisions of Tex.Rev.Civ.Stat. Ann. art. 1926a, § 2.18 (Vernon Supp.1978). This case remained on the docket of the 317th District Court.

Appellants present a two-pronged argument in attacking the jurisdiction of the 58th District Court. They argue that the case was tried in the 58th District Court and that “[njowhere in the record is there reflected any transfer to the 58th Judicial District Court pursuant to Section 11.06 of the Tex.Family Code.” Appellants urge that such a transfer is mandatory pursuant to Section 11.05, Texas Family Code, wherein it is stated:

“. when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this code.”

The above-quoted Section 11.05, Texas Family Code, has no application to the case at bar. In this case there has been only one case filed, and such case was pending in the 317th District Court of Jefferson County, and no final judgment had been entered by such court. The case was actually tried by the Judge of the 58th District Court of Jefferson County, either as the 58th District Court or as “Presiding Judge” of the 317th District Court, as hereinafter discussed.

The Texas Family Code provides a scheme to maintain in one court the continuing jurisdiction of litigation which affects an individual child. Once a court acquires jurisdiction of a particular child and enters a final judgment, that court has continuing, exclusive jurisdiction over subsequent suits affecting that child. See Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974); Boriack v. Boriack, 541 S.W.2d 237 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d).

Proper venue of this case in Jefferson County has not been questioned. The transfer provisions of Sections 11.06(a) and 11.06(b), Texas Family Code, do not apply when venue is proper in the court in which the divorce and the parent-child relationship suit is pending. Brown v. Brown, 566 S.W.2d 378 (Tex.Civ.App.—Corpus Christi 1978, no writ).

The other argument made by appellants is that the Judge of the 58th District Court wrongfully exercised his jurisdiction over this case because he tried the case as the 58th District Court and not as the “presiding judge of the 317th Judicial District Court.” This argument has no merit. After his case was brought before the Judge of the 58th District Court, the judge signed several orders as “Presiding Judge” of the 317th District Court and entered the final judgment as such “Presiding Judge.” However, it is immaterial as to whether the judge tried the case as the Judge of the 58th District Court or as “Presiding Judge” of the 317th District Court. The trial judge could act in either capacity. Tex. Const, art. V, § 11; Tex.Rev.Civ.Stat.Ann. arts. 1916, 2092(21) (Vernon Supp.1978). See Ex parte Lowery, 518 S.W.2d 897 (Tex.Civ.App.— Beaumont 1975, no writ); Outlaw v. Noland, 506 S.W.2d 734 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Baldwin v. Leonard, 110 S.W.2d 1160 (Tex.Civ.App.—Eastland 1937, writ dism’d); Tex.R.Civ.P. 330(e).

There is yet another reason why this argument and point of error should be overruled. Judge Jack Brookshire, Judge of the 58th District Court, states into the record — vehy emphatically, “The plain facts are — and I want the appelant [sic] court to know this — the plain facts are that the petitioner and the intervenors and grandparents’ lawyers asked that this case be specially set and tried on this time on the docket in the 58th District Court when it was pending over the 317th; and the Court postponed a few of its own cases, although they were on the non-jury docket, to accommodate this situation. . . ” This statement by the court is not challenged or disputed. Under these circumstances, the very clear and appropriate rule should be applied in this case as stated in Moore v. Moore, 430 S.W.2d 247, 250 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.), and Spence v. State National Bank, 5 S.W.2d 754 (Tex.Comm’n App.1928, jdgmt. adopted). In the Spence case the rule is clearly stated as follows:

“To permit one to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its orders upon the grounds that it had no jurisdiction would be to allow one to trifie with the courts. The principle is one of estoppel in the interest of a sound administration of the laws whereby the regularity or even validity of an act procured by one himself cannot be raised— not that the act is valid, for it may not be, and estoppel does not make valid the thing complained of, but merely closes the mouth of the complainant.”

Appellants next complain of error by the trial court in granting appellee’s motion in limine. The motion in limine before the trial court was worded in such a manner that it did not completely exclude testimony. As worded, the motion, and the court’s order in granting same, only required that no mention be made of the matters contained in the motion until such time as counsel approached the bench and obtained a ruling from the court on such matters. We hoerrule this point. Appellants have not shown by bill of exception or by any other manner what evidence it would have offered had the motion in li-mine not been granted. Error is not preserved by the mere showing of the granting or denying of such a motion in limine. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963); Gulf States Abrasive Manufacturing, Inc. v. Oertel, 489 S.W.2d 184 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d); State v. Wheeler, 390 S.W.2d 339 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.). For an objection on appeal to be proper, the questions and answers thereto must be asked. The appellants did not offer or attempt to offer any such evidence at the trial. Accordingly, they cannot now complain of any error. Hartford Accident & Indemnity Co. v. McCardell, supra; Lopez v. Allee, 493 S.W.2d 330 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.).

There being no error, the judgment of the trial court is affirmed.

AFFIRMED.


author: YOUNG, Justice.

text:
    INTERNATIONAL AIRCRAFT SALES, INC., et al., Appellants, v. Lionel BETANCOURT et al., Appellees.
    No. 1367.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1979.
    Rehearing Denied June 13, 1979.

      Ron W. Armstrong, Lee Arnett, Brownsville, for appellants.
    Gordon L. Briscoe, Harlingen, for appel-lees.
   OPINION

YOUNG, Justice.

In this appeal arising from a suit on a note, the primary issue is whether the defendants established as a matter of law their defense of illegality of the origin of the note. Vendors of electronic components, Lionel Betancourt and John Phillips, appellees, sued International Aircraft Sales, Inc., and vendees, Raymond Kyral, Jr., and George Whitley, all appellants, on a $147,-196.00 negotiable note which represented the balance due for goods received. Defendants answered asserting three defenses: 1) want of consideration because the components were, in effect, consigned to Kyral and Whitley rather than sold to them; 2) fraudulent inducement to sign the note herein; and 3) unenforceability of the note because it arose out of an illegal transaction, i. e., smuggling.

Trial was before a jury. The only issues considered by the jury dealt with the first and second of the above defenses. The remaining illegality defense was not submitted to the jury since the appellants considered it to be established as a matter of law. The jury found that the transaction here was a sale and that the appellees did not fraudulently induce the appellants to sign the note. Appellants moved that the court enter judgment in their favor based upon the illegality defense. The trial court, however, overruled the defendants’ motion and entered judgment for the appellees. This appeal by the defendants followed on only one point of error; namely whether the illegality defense was established as a matter of law.

In the early part of 1975, Kyral and Whitley began smuggling television sets, stereos and other electronic components by airplane from Brownsville, Texas, to various places in Mexico. Sometime later, Be-tancourt and Phillips were introduced to Kyral and Whitley through a mutual friend. Betancourt and Phillips, who were already engaged in the sale of electronic components in San Benito, Texas, worked out an arrangement to sell Kyral and Whitley the components to be smuggled into Mexico. Betancourt and Phillips were to order the merchandise from their suppliers and have it delivered in San Benito. Then, according to the instructions of Kyral and Whitley, they (Betancourt and Phillips) were to remove the electronic components from their cartons, cut the cartons apart, and put the cartons, inside out, back around the components. The cartons were then to be wrapped in brown kraft paper and the insignia “K & W” was to be written on the outside. Whereupon Betancourt and Phillips were then to make up 1,200 to 1,400 pound airplane loads of these rewrapped units and deliver them to Kyral ⅛ warehouse in Brownsville. Generally, Betan-court and Phillips were also to decide which components would comprise each load.

Betancourt and Phillips also were to arrange their invoices and other documentation so as to facilitate the smuggling of the goods into Mexico. Kyral and Whitley then stamped these documents to show that the goods had been exported so that Betancourt and Phillips would not be liable for any state sales tax.

The parties stipulated that it was illegal to ship this merchandise into Mexico. They also stipulated that Betancourt and Phillips knew that the merchandise in question was to be exported to Mexico and sold in Mexico. And the evidence is undisputed that Betancourt and Phillips knew that this was an illegal enterprise in Mexico. They also knew that Kyral had had an airplane confiscated in Mexico and that there was a substantial risk of having shipments confiscated.

Deliveries began in late 1975. Kyral and Whitley had told Betancourt and Phillips that they would be receiving their money about ten days from delivery. The payment would be in the form of checks written on a Mexican bank. During 1975, payments were made in five or ten days from delivery and everything went according to plans. In 1976, though, it began taking fifteen days or more for payment. On March 8, Betancourt and Phillips were notified that a Mexican check given to them as payment was worthless; as it turned out, every check they had received since January 8, 1976, was worthless. Those bogus checks caused their bank account to be overdrawn in an amount exceeding $200,-000.00. Apparently, the purchasers in Mexico were paying for the smuggled goods with worthless checks, and Kyral and Whitley consequently ran out of money. Kyral then told Betancourt and Phillips that the checks would be taken care of in a few days. Over a. period of about four weeks, Kyral did pay some of the checks, but only to the extent of $110,000.00.

In order to cover their resulting overdraft at the bank, Betancourt and Phillips executed a note to their bank in San Benito. Betancourt and Phillips then entered into a series of discussions and visits with Kyral in which payments on the dishonored checks were discussed. At one point, Kyral was asked to sign as surety of the note executed in favor of the bank. But he refused to do this. After a series of further discussions concerning how to take care of the dishonored checks, Betancourt and Phillips directed their attorney to draw up a negotiable note and two security agreements covering the four airplanes that Kyral and Whitley were using to transport the electronic components into Mexico.

On June 10, 1976, Betancourt and Phillips drove to Brownsville to meet with Kyral and Whitley. When Betancourt and Phillips arrived, Whitley was not yet present, so Betancourt and Phillips discussed the terms of the note and security agreements with Kyral. The evidence is undisputed that these discussions were directed toward honoring the checks. When Whitley arrived, both he and Kyral privately discussed the terms of the note and security agreements. After about ten minutes of deliberation, they met again with Betancourt and Phillips and each signed the note. Further, Kyral signed the security agreement as to two of the airplanes because they were in his name, and signed the security agreement in the name of International Aircraft Sales, Inc., as to the two other airplanes because they were registered as owned by that corporation. Kyral later paid Betan-court and Phillips $8,000.00. No other payments were made and this suit followed.

At the trial, the note and security agreements made the basis of this suit were introduced without challenge. Thus, the plaintiff appellees made out a prima facie case of validity of the instruments. Hager v. Texas Distributors, Inc., 560 S.W.2d 773, 775 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). It was then the appellants’ burden at trial to prove the illegality of the note. McKenzie v. Carte, 385 S.W.2d 520, 529 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.).

To determine whether the appellants have met their burden of establishing their illegality defense as a matter of law, we will first consider whether the agreement preceding the note herein was legal and then whether the illegality of the transaction tainted the note herein.

If a contract or sale is made with a view of violating the laws of another country, though not otherwise obnoxious to the law either of the forum or of the place where the contract is made, it will not be enforced. 15 Williston on Contracts, § 1748 (3rd ed. 1972), Restatement of Contracts, § 592 (1932); Rutkin v. Reinfeld, 229 F.2d 248, 255 (2nd Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956). In applying this rule to cases of sales, however, the mere knowledge by a vendor of an intent on the part of the vendee to use the goods for an unlawful purpose will not bar recovery by the vendor on the contract of sale, but if the vendor in any way aids the vendee in his unlawful design to violate the law, such participation will render void the contract of sale and will bar recovery by the vendor. Stone v. Robinson, 203 S.W. 1132 (Tex.Civ.App.—Amarillo 1918, no writ); 15 Williston on Contracts, § 1755 (1972), Restatement of Contracts, § 602 (1932). The Restatement of Contracts, § 602, illustrates the above rule in the following example, to-wit:

“2. In a State where the sale of certain plants is legal, A sells a quantity of them to B who desires to transport them to a State where quarantine regulations forbid their importation. In order to aid B in getting the goods to the desired place, A packs and marks them so as to conceal their character. The bargain is illegal and A cannot recover the price.”

The facts of the instant case are closely similar to the above example. Here, Be-tancourt and Phillips removed the components from their boxes and rewrapped them so as to conceal their true identity. Moreover, they separated the components into lots of 1,200 to 1,400 pounds each so that they might be flown over the border illegally. And finally, Betancourt and Phillips filled out their invoices and other documentation so as to facilitate the smuggling of the items into Mexico. In addition to this, the evidence is conclusive that Betancourt and Phillips knew that the shipment of these goods into Mexico was illegal. We think the evidence is conclusive that the original agreement of sale between Betan-court and Phillips and Kyral and Whitley was illegal and not enforceable in a court of law.

Next we observe that promissory notes given in connection with a contract which is illegal are ordinarily not enforceable as between the parties to such instruments. Reed v. Brewer, 37 S.W. 418 (Tex.Sup.1896); Scoggins v. Furst & Thomas, 9 S.W.2d 405 (Tex.Civ.App.—Texarkana 1928, writ dism’d w. o. j.). The test of whether a demand connected with an illegal act can be enforced is whether the plaintiff requires any aid from the illegal transaction to establish his case. Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526, 527 (1888); Hall v. Edwards, 222 S.W. 167, 168 (Tex.Comm’n App.1920, jdgmt. adopted); Gulf Collateral, Inc. v. Cauble, 462 S.W.2d 619, 622 (Tex.Civ.App.—Fort Worth 1971, no writ). Stated another way, in Cauble, the test is this:

“[I]f the tainted transaction has been completed, and another grows out of it collateral to it, dependent upon a new consideration, the new contract is not vitiated by the taint of the old one, and will be enforced.”

Though the appellees here were able to prove their case without referring to the illegal transaction, the appellants were not prevented from proving that the note was in some respect illegal or based upon an illegal consideration. See Scoggins v. Furst & Thomas, supra; 17 Am.Jur.2d, Contracts, § 219 (1964). We find the evidence to be undisputed that the transaction herein had not been completed in that Betancourt and Phillips delivered the electronic components, but had received worthless checks in payment. The appellants never did pay the debt but rather merely substituted one form of negotiable instrument, the note, for the earlier forms, the checks. The appellants did extend additional security to the appellees by giving them a security interest in the airplanes, but we find no evidence of the appellees giving any new consideration for the security agreements. Tex.Bus. & Comm.Code Ann. § 3.408 (1968). Such illegal consideration would render the note unenforceable. Scoggins v. Furst & Thomas, supra.

Kyral stated that his reason for signing the note was to “help” Betancourt and Phillips withstand their banker’s pressure to pay up. There is a clear distinction between the motive inducing the execution of a contract and the consideration, though. One’s motive does not amount to consideration. Hoffer v. Eastland Nat. Bank, 169 S.W.2d 275, 281 (Tex.Civ.App.—Eastland 1943, no writ). All of the other evidence bearing on the relation between the note and the illegal contract conclusively indicates that the note arose out of the appellants’ failure to pay for the goods delivered.

During trial, Betancourt was asked whether the note was a part of the entire series of dealings he had with Kyral and Whitley. He answered, “Yes, sir.” Phillips stated at trial that on the day Kyral and Whitley signed the note Betancourt and Phillips showed them the bounced checks and asked for the note to be signed. When Kyral was asked to describe what happened prior to the signing of the note, he stated, “Basically, they were wanting their money. They wanted those checks made good. And it went on then to the note signing. And somehow the airplanes for collateral got brought up into the conversations.” We think a mere change in the evidence of obligation does not validate that which is invalid. Sturdevant v. Falvey, 176 S.W. 908, 911 (Tex.Civ.App.—El Paso 1915, writ ref’d). Consequently, we find the instant note to be tainted by the illegal contract and therefore unenforceable.

Appellees argue that the appellants had a moral obligation to pay for the goods delivered in spite of the illegal consideration and that the moral obligation is sufficient consideration for the contract. We disagree. Generally speaking, a moral obligation is not regarded as sufficient consideration to support a contract. C_v. W_, 480 S.W.2d 474, 478 (Tex.Civ.App.—Amarillo 1977, no writ); 13 Tex.Jur.2d, Contracts, § 68 (1960). In some limited circumstances, however, a moral consideration is deemed adequate consideration when the promise is to pay a debt based upon an antecedent consideration which the debtor is exempted from by virtue of a positive rule of law. Simpson v. Williams Rural High School Dist., 153 S.W.2d 852 (Tex.Civ.App.—Amarillo 1941, writ ref’d). Most eases, though, which follow this rule are those cases involving contracts not involving serious moral turpitude, e. g., debts barred by limitations and bankruptcy. Simpson, supra. See 1 Williston on Contracts, § 150; Restatement of Contracts, §§ 8690, 535 (1932).

The parties herein were engaged in a course of conduct which directly conflicts with the laws of Mexico and thereby involves serious international overtones. We think this smuggling scheme was of such consequence that the public interest would be jeopardized by the enforcement of such contracts, and we think a note arising out of such contract cannot been enforced. See 1 Williston on Contracts, § 150 (1957).

Appellees further contend that the appellants waived the illegality ground of defense in that they did not submit it to the jury. In light of the above discussion, that the defense was conclusively established, it did not need to be submitted to the jury in order to be preserved for appeal. Rule 279, T.R.C.P. Appellants’ point of error is sustained.

The record reflects that the appellants’ property has been sequestered. In light of our decision finding no enforceable debt, the appellants are entitled to have the property restored to their possession. Spicknall v. Panhandle State Bank of Borger, 278 S.W.2d 622 (Tex.Civ.App.—Amarillo 1954, no writ); Rea v. P. E. Schow & Bros., 42 Tex.Civ.App. 600, 98 S.W. 706 (1906, no writ); 52 Tex.Jur.2d, Sequestration, § 98 (1964).

The judgment of the trial court is therefore reversed in part and judgment is here rendered that appellees take nothing in their action on the note. But that part of the judgment of the trial court denying the appellants’ counterclaims is affirmed.

Reversed and rendered in part, and affirmed in part.


text:
    Ex parte Allen L. SHELTON. Ex parte Richard L. KOLLINGER.
    Nos. 20034, 20046.
    Court of Civil Appeals of Texas, Dallas.
    May 31, 1979.

      Kayo Mullins, Dallas, for appellant.
    Nikki T. DeShazo, Dallas, for appellee.
    Mike MeCurley, McGuire, Levy & McCur-ley, Irving, for appellant.
    Ronald L. McKinney, Hoppenstein & Prager, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   GUITTARD, Chief Justice.

These two applications for habeas corpus present the question of whether a provision in a divorce decree ordering one of the parties to pay future medical expenses for the children, but without specifying them or prescribing any procedure for determining the amount, is enforceable by contempt and confinement in jail. We hold that such an order lacks the certainty required for such enforcement. Accordingly, we have granted the writs applied for in both cases, and we now state the reasons for our decision.

The test of the certainty required of an order enforceable by contempt is that it must spell out the details of compliance in clear, specific, and unambiguous terms so that the person affected by the order will readily know exactly what obligations are imposed on him. Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967). By that test, neither of these decrees are sufficiently specific. In one case the relator was ordered to pay the medical and dental bills of the three minor children until they should reach the age of eighteen years. In the other, the relator was ordered to maintain a medical and hospitalization insurance policy covering the children until they should reach age eighteen and to pay, as additional child support, the premiums in such policy and all other medical and hospitalization expenses for the children not covered by insurance.

Enforcement of such provisions as these in particular cases would necessarily give rise to many questions. Are dental expenses included? Orthodontic services? Plastic surgery? Prescription or non-prescription drugs? Who determines the necessity of treatment or the level of services? To whom is payment to be made? How much time is allowed to raise the money before a contempt charge is proper? Is the party charged with contempt permitted to question the necessity of the treatment or reasonableness of the amount? Does presentation of a bill raise a presumption of necessity of treatment and reasonableness of charges? May the obligated parent be held in contempt for failure to pay a bill which has been disallowed by the insurer?

None of these questions can be determined from the decrees in question. We conclude that they do not spell out the details of compliance in such clear, specific, and unambiguous terms that persons affected by them will readily know exactly what obligations are imposed. Consequently, they are not enforceable by contempt.

We express no opinion as to the validity of such decrees in an action to enforce the obligation as a matter of contract or as a debt under section 14.09(c) of the Texas Family Code. In any such action, presumably, questions of the sort above mentioned may be litigated and determined before the obligation to pay is established.

In a contempt proceeding we see no distinction in principle between a general order to pay unspecified future medical expenses and an order to pay other expenses necessary for welfare of the children, such as clothing and educational expenses. Such expenses may properly be included in determining the amount of periodical support payments fixed by a divorce decree. If not sufficient in a particular case, the remedy is modification under section 14.08 of the Code.

Writs of habeas corpus granted.


text:
    Lois Ann FAULKNER, Appellant, v. Bobby Gerald FAULKNER, Appellee.
    No. 19947.
    Court of Civil Appeals of Texas, Dallas.
    May 31, 1979.
    Robert C. Cox, James Albert Jennings, Erhard, Cox & Ruebel, Dallas, for appellant.
    Brian A. Eberstein, Dallas, for appellee.
    Before GUITTARD, C. J., and STOREY and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

Both parties to this divorce suit appeal from a decree dividing the community property and awarding the wife a “judgment lien” on certain corporate stock given to the husband by his parents. The court found that the stock was enhanced in value by the couple’s personal services and by the lending of their credit to the corporation. The wife contends that the court should have awarded her an ownership interest in the corporation. The husband contends that there is no evidence to support the finding of enhancement or to justify imposition of the “judgment lien.” We agree with the husband that there is no basis in the evidence for the finding of any community interest in the corporation or its stock or for any finding of enhancement of the stock. Accordingly, we reverse and remand for a new trial of the property issues.

The parties were married approximately twenty years. Their only possessions were a home subject to a large mortgage, household goods, automobiles, life insurance, and 2,170 shares of stock in Dallas Truck Plaza, Inc. Both were employed by that corporation, and the husband was a participant in the Corporation’s profit-sharing plan. The stock was originally owned by the husband’s parents, and was transferred to the husband as a gift on April 1, 1976.

The corporation was organized by the husband’s father. In 1971, the father proposed that the corporation go into the truck repair and servicing business on a tract of land he owned. To obtain funds for construction costs a loan was sought from Skelly Oil Company, which agreed to lend the corporation $275,000 on condition that a promissory note be signed by the father, the mother, the three sons, and their wives. Accordingly, on May 25,1971, a note in that amount was executed on behalf of Dallas Truck Plaza, Inc. and was signed individually by the father and mother, the three sons, and their wives.

The proceeds of the loan were used to build the truck stop. The present parties went to work as employees, the wife as a waitress and the husband as mechanic and shop manager. The husband served also as general manager in his father’s absence. Both husband and wife were compensated for their services by salaries paid by the corporation. The business prospered and its stock increased in value. The corporation paid the installments on the note to Skelly as they fell due. None of the individual signers of the note have ever been required to make a payment.

None of the stock in the corporation was issued to either of the present parties until April 1, 1976, when the husband’s parents transferred the 2,170 shares in question to him. This was one-eighth of the total shares outstanding. Similar gifts were made at the same time to the other two sons, and all these gifts were listed in a federal gift tax return filed by the parents.

The Wife’s Appeal

The only point urged by the wife for reversal of the decree is the court’s failure to find that she and her husband had a twenty-five percent community interest in Dallas Truck Plaza, Inc. by virtue of the tender of their community credit for the construction of Dallas Truck Plaza and their guaranty of its financial obligation. In support of this contention, she cites Broussard v. Tian, 156 Tex. 371, 295 S.W.2d 405 (1956) and Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881 (1937). Those cases stand for the rule that property acquired by either spouse on the credit of the community is community property. The obvious distinction is that in this case neither the husband nor the wife acquired any property interest in the stock of the corporation or in its assets by signing the corporation’s note. That note was secured by the land, which had been owned by the husband’s father, and by the truck stop and other facilities built on it. There is no evidence of any conveyance to the husband of any interest in that property or of any agreement that he should have such an interest. Neither is there any evidence that the husband acquired any property interest in the corporation until five years later, when his parents made him a gift of 2,170 shares of stock and made similar gifts to his two brothers. Counsel has cited no authority to support the view that a married couple can obtain a community interest in an incorporated enterprise by co-signing the corporation’s note, and we know of none that would even remotely tend to support such a view. Consequently, we hold that the trial court was correct in its finding that the parties did not have a twenty-five percent community interest in the Dallas Truck Plaza, Inc.

The Husband’s Appeal

The divorce decree recites findings that the community estate of the parties, through tendering its credit on the $275,000 note and the work efforts of both parties, has contributed a community interest in 2,170 shares of stock of Dallas Truck Plaza, Inc. It further recites that there has been an increase in value of the 2,170 shares attributable in part to the community by reason of both parties’ efforts. The decree recites, however, that the part of the increase so attributable is not precisely ascertainable, and, consequently, that the entire amount of the increase is community in character by reason of commingling. To determine what portion of the 2,170 shares is community property, the court found the value per share to have been $11.97 on April 1,1976, and $14.44 on July 31,1978, making a “community increase” per share of $2.47. Multiplying this figure by the 2,170 shares resulted in a total “community increase” of $5,359.90, of which the one-half interest of each spouse was $2,679.95. However, the judge did not award this figure to the wife as her community interest. Instead, unaccountably, he awarded her $17,750 as her share of the enhancement. To do this he devised a formula based in part on figures for the total value of the stock in the corporation and the gross sales of the corporation. He then awarded the stock to the husband as his separate property, but impressed that stock with a “judgment lien” of $17,750, to be paid to the wife at the rate of $300 per month.

The husband contends that the undisputed evidence shows that the 2,170 shares were wholly his separate property by virtue of the gift to him by his parents on April 1, 1976, and that there is no evidence of any subsequent enhancement in its value as a result of the earlier lending of community credit or as a result of any work by the present parties all of which were fully compensated by salaries paid to them by the corporation. The husband further contends that there is no evidence to support the figure of $17,750, which the court determined to be due the wife because of such enhancement. We agree. Any enhancement to the stock as a result of signing the note occurred five years earlier. And whether any enhancement occurred as a result of the value of the husband’s services as a mechanic and manager or the wife’s services as a waitress above and beyond the salaries they received is a matter of pure speculation under this record. Consequently, the stock, which was the husband’s separate property on April 1, 1976, when given to him by his parents, remained entirely his separate property in 1978 at the time of the divorce. The $17,750 “judgment lien” awarded to the wife is without any eviden-tiary support.

The wife attempts to justify the $17,750 “judgment lien” on the theory that even if the stock should be considered separate property, the judge had discretion, under section 3.63 of the Texas Family Code, to impose this obligation on the stock in order to make a division of the estate “in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” To support this contention, she cites the opinion of this court in Muns v. Muns, 567 S.W.2d 563, 566 (Tex.Civ.App.—Dallas 1978, no writ) and the more recent opinion of Crowell v. Crowell, 578 S.W.2d 562, 564-65 (Tex.Civ.App.—Fort Worth 1979, no writ). These authorities, she argues, stand for the rule that it is immaterial how the trial court characterizes the property, so long as the division is fair and equitable under the circumstances. In this case the circumstances relied on to support the decree are the parties’ assistance to the corporate enterprise by signing the corporation note in 1971 and their services to the corporation over the years as salaried employees, when they might have engaged in some enterprise on their own if they had not expected to be among those ultimately benefitted by the success of the corporate business. The wife insists that for the court to leave her almost wholly without assets after twenty years of marriage while permitting the husband to enjoy the benefits they both anticipated, would be so unfair as to justify this relatively modest charge on the husband’s separate property.

This argument has a strong appeal, but we conclude that it cannot avail to support the judgment here. It was not advanced in the trial court. Neither did the judge find, as in Muns, that the estate of the parties was divided in a manner that was just and right, without regard to whether the property so divided was community or separate. We doubt that such a finding can be implied in view of the specific formula used to determine the $17,750 charge. That formula has no basis in the evidence and cannot be supported on any rational theory. What decree the judge might have issued if he had approached the problem under section 3.63 is a matter of speculation. We cannot properly review the case here on a theory not presented in the trial court. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942); Rutherford v. Clark, 546 S.W.2d 932 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.). Consequently, we have no alternative but to reverse.

The Judgment

The husband prays that the divorce decree be reversed and that judgment be rendered in his favor with respect to the “judgment lien” of $17,750. Alternatively, he prays that the cause be remanded for a new trial on the sole issue of whether the wife has any community interest in the stock in question, and, if so, the extent of such interest. Although we agree that the decree must be reversed in this respect, we cannot simply modify the decree by striking this provision because to do so would be to make a new division of the estate of the parties, a matter within the discretion of the trial court. McKnight v. McKnight, 543 S.W.2d 863, 868 (Tex.1976). Since we hold that the wife has no community interest in the stock in question, the court would have discretion to make a different division of the other property of the parties, including the home, the insurance, and the profit-sharing plan, and could possibly impose a charge on the husband’s separate property if the circumstances established on another trial bring that property within section 3.63 of the Code, as interpreted in Muns. In that connection, the actual market value of the home and of the stock, as distinguished from cost of book value, may be relevant. Accordingly, the decree of divorce is reversed insofar as the property division is concerned and the cause is remanded for a new trial. The decree is undisturbed with respect to its provisions for divorce, custody and child support.

Costs are taxed against the wife, except for the transcript, which contains numerous papers requested by the husband that are not pertinent to this appeal. We shall not undertake to examine each of these papers to determine what portion of the transcript is properly taxable. Consequently, the entire cost of the transcript is taxed against the husband.

Reversed and remanded.


author: STEPHENSON, Justice.

text:
    Thermon HERRON et al., Movants, v. Boyd BOGGS and Ola B. Boggs, His Wife, Respondents.
    Supreme Court of Kentucky.
    April 10, 1979.
    Rehearing Denied July 24, 1979.
    Charles Landrum, Jr., Landrum, Patterson & Dickey, Lexington, for movants.
    J. Milton Luker, Luker & Luker, Boyd F. Taylor, Henry C. Stoltz, London, for respondents.
   STEPHENSON, Justice.

The trial court entered judgment holding that movants were estopped from claiming any interest in that portion designated PARK in the subdivision plat upon which respondents had erected a home. The Court of Appeals affirmed. We granted discretionary review and reverse.

The respondent Boyd L. Boggs, in 1959, subdivided and developed a parcel of land known as Dixie Belle Subdivision. A plat was recorded in the county court clerk’s office. The recorded plat designates each lot by number. In the south central portion of the plat is a 9.70-acre tract without a number and with the notation PARK. Each deed conveying a lot referred specifically to the recorded plat, the conveyance being made by lot and block number. In negotiating the sale of lots, Boggs displayed the plat to purchasers, representing in every instance that the 9.70 acres had been set aside as a park and recreational area for the use and benefit of the owners of the lots in the subdivision. A road or street bisects the area designated as PARK connecting with streets in the subdivision on the eastern and western side of the park. As the subdivision developed, Boggs constructed a lake in the park south of the road together with a shelter house, cookout grill, etc.

After all the lots had been sold, Boggs in 1972-1973 constructed a residence in the section of the park north of the road without complaint or protest by the property owners and residents of the subdivision. In 1975, Boggs erected a fence around the lake and posted “no trespassing,” “no fishing,” and “keep out” signs. This action was protested by the lot owners. In the fall of 1976, Boggs placed a house trailer in the park near his residence.

Movants, lot owners in the subdivision, filed an action in the Laurel Circuit Court asking for injunctive relief for removal of the residence, house trailer, etc., or in the alternative, damages for diminution of the value of their property.

The trial court generally made these findings of fact, and neither side argues the findings are clearly erroneous in any respect.

With this factual situation, the trial court concluded as a matter of law that the PARK was dedicated for the use of the lot owners with a holding that Boggs retained legal title to the PARK, subject to the lot owners right of use. The trial court further concluded that the construction of a residence, fencing the lake, and placing a house trailer on the area violated the rights of the lot owners; but with respect to the residence, there was a conclusion of law that the lot owners were estopped to complain.

Judgment was then entered giving in-junctive relief to the lot owners save for the residence and a designated area around it. The judgment denied damages.

When Boggs recorded the plat and sold lots in accordance with the plat, this constituted a dedication of the streets and the PARK to the public and thereby divested Boggs of legal title to the area. In this respect the judgment of the trial court is erroneous.

The complete answer in this matter is contained in Cassell v. Reeves, Ky., 265 S.W.2d 801, 802 (1954):

“It is a settled principle that when a map or plat of a subdivided tract of land is exhibited or recorded and conveyances are made of the lots by reference thereto, the plat becomes a part of the deeds, and the plan shown thereon is regarded as a unity. And, nothing else appearing, it is held that all the streets, alleys, parks or other open spaces delineated on such map or plat have been dedicated to the use of the purchasers of the lots and those claiming under them as well as of the public. They become appurtenances to the lots. It is presumed that all such places add value to all the lots embraced in the general plan and that the purchasers invest their money upon the faith of this assurance that such open spaces, particularly access ways, are not to be the private property of the seller.”

See also 23 Am.Jur.2d, Dedication § 27, p. 25:

“And where there is nothing on the map to indicate that a park designated thereon is reserved by the owners, the very term ‘park’ indicates a dedication to public, rather than a reservation for private, use. It is as significant of a dedication, and of the use to which the land is dedicated, as is the word ‘street’ written thereon.”

It follows that movants were entitled to a judgment directing Boggs to move his residence off the PARK and requiring him to restore the area where the residence is located to its original condition.

We do not find the elements of equitable estoppel in this state of facts and are of- the opinion the trial court erroneously applied the doctrine to deny movants the relief to which they are entitled. Boggs knew the facts as well as did movants. His change of position was in reliance on an erroneous belief that he retained legal title to the PARK, and was not induced by any affirmative or negative conduct of movants.

The judgment of the trial court with respect to denial of injunctive relief to move respondents’ residence is reversed with directions to enter a judgment requiring respondents to move the residence from the park area and to restore the property to its original state.

All concur.


text:
    Robert Lane CARPENTER, Movant, v. BOARD OF EDUCATION OF OWSLEY COUNTY, Kentucky, et al., Respondents.
    Supreme Court of Kentucky.
    May 22, 1979.
    Arthur L. Brooks, Lexington, for movant.
    Kendall Robinson, Booneville, for respondents.
   CLAYTON, Justice.

Robert Lane Carpenter was a teacher in the Fleming County School District for six successive school years until his resignation in 1972. He taught in the Bracken County School District during the 1972-73 school year, resigned, and did not teach the following year. He began employment in the Owsley County School District in August 1974 and taught for three consecutive school years. The Owsley County Board of Education notified Carpenter that he would not be reemployed for the 1977-78 school year due to reorganization in the school district. Carpenter commenced this action in the Owsley Circuit Court, alleging that he had continuing service status and was therefore entitled to a written statement of the charges against him and a pretermination hearing. See KRS 161.790. The Ows-ley Circuit Court granted summary judgment in favor of the school board, and the Court of Appeals affirmed. Discretionary review was granted by this court to interpret KRS 161.740(l)(c), which sets forth the conditions under which a teacher with continuing service status in one school district can retain that status upon employment in another district.

Continuing service status, or tenure, is acquired when a properly certified and currently employed teacher is reemployed after teaching either four consecutive years or four of six consecutive years in the same school district. KRS 161.740(l)(a)-(b). A continuing service contract remains in force until the teacher resigns or retires, or until terminated or suspended. KRS 161.720(4).

Movant Carpenter undoubtedly attained continuing service status by operation of law under KRS 161.740(l)(b) by teaching for six successive school years in the Fleming County School District. That status ended, however, under KRS 161.720(4) when movant voluntarily resigned in 1972. Movant contends on this appeal that he obtained tenure in Owsley County immediately upon his employment there by virtue of KRS 161.740(l)(c), which reads:

When a teacher has attained continuing contract status in one (1) district and becomes employed in another district, said teacher shall retain that status provided, however, that a district may require a one-year probationary period of service in that district before granting that status.

The Court of Appeals was correct in deciding that any continuing service status held by movant was terminated by his resignation in Fleming County. Movant could not by way of KRS 161.740(l)(c) “retain” in Owsley County a status he did not hold at the time of his employment there.

The Court of Appeals was incorrect, however, in reasoning that movant could regain tenure by returning to Fleming County for a probationary period of one year. This misconception was apparently based on a misreading of Estill County Bd. of Educ. v. Rose, Ky., 518 S.W.2d 341 (1975). In that case Rose was employed by the Estill County Board of Education from 1958 to his resignation in 1966. He taught in Lee County during 1966-67, resigned, and returned to teach in Estill County the following year. Although his 1966 resignation terminated his continuing service contract, the court held that Rose was nevertheless entitled to continuing service status upon completion of the 1967-68 school year because he was employed in the same school district for four of six consecutive years, thus meeting the conditions of KRS 161.-740(l)(b). Rose is inapplicable to the case at bar since movant, were he to return to Fleming County, would not fall under the four out of six years provision.

The only manner in which movant can obtain tenure is to comply with KRS 161.-740(l)(b) anew. KRS 161.740(l)(c) is simply not available to movant, who due to his resignation in Fleming County had no continuing service status to retain upon his employment in Owsley County. The effect of our decision is to limit the availability of KRS 161.740(l)(c) to those teachers who currently hold tenure at the time of their employment in another district.» We remind those who may find this result unsatisfactory that “[o]ur function in interpreting statutes is limited to analyzing and applying what the legislature has said, and does not extend to psychoanalyzing the legislature and applying what it may have meant to say. Cries for modification should be addressed to the legislature.” Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933, 935 (1976).

The decision of the Court of Appeals upholding the judgment of the trial court is affirmed.

All concur.

      . Since movant’s employment in Owsley County began in August 1974, we will apply KRS 161.740(l)(c) as amended, effective June 21, 1974.