author: ROBERTS, Judge. DOUGLAS, Judge

text:
    Ex parte Manuel TRILLO.
    No. 52571.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.

      Ronald D. Coleman, El Paso, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a habeas corpus proceeding.

On April 22, 1976, the appellant, who was on felony probation, was arrested and incarcerated in the El Paso County Jail pursuant to a bench warrant issued by the 205th District Court of El Paso County. This was in accord with the provisions of Art. 42.12, Sec. 8(a), Vernon’s Ann.C.C.P. (as amended), which provides in part:

“At any time during the period of probation the court may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. Any probation officer, police officer or other officer with power of arrest may arrest such defendant without a warrant upon the order of the judge of such court to be noted on the docket of the court.”

On April 27, 1976, the appellant, still in custody, filed a motion for a hearing on his probation revocation. The record reflects that no such hearing was held, and the appellant remained in custody. Twenty-one days later, on May 18, 1976, the appellant filed this writ of habeas corpus alleging that “because of the failure of the Court to grant a hearing within twenty days of the filing of Defendant’s Motion for a Hearing, the Petitioner is being denied his liberty without due process of law and should be forthwith released and the Motion for Revocation of Probation should be overruled.”

Appellant’s reliance was upon another part of Art. 42.12, Sec. 8(a), supra. Section 8(a) also provides that:

“A probationer so arrested may be detained in the county jail or other appropriate place of detention until he can be taken before the court. Such officer shall forthwith report such arrest and detention to such court. If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation. The court may continue the hearing for good cause shown by either the defendant or the state.”

It is undisputed that no hearing was held nor any continuance granted. Instead, the trial court granted the writ, held a short hearing on May 20, 1976 and entered an order finding that a date should be set for a hearing on the motion to revoke appellant’s probation. The court also ordered that the appellant be released on his own personal bond. See Arts. 17.03, 17.04, V.A.C.C.P. The court denied appellant’s request that the motion to revoke be dismissed.

The question is whether habeas corpus is the proper remedy for the relief which appellant seeks. At the outset, however, we must determine whether appellant is being restrained and is therefore “in custody" even though he is free on personal bond or whether this fact has rendered appellant’s petition moot.

In Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973), we held that habeas corpus relief was available to a petitioner even though he had been released from confinement from the Texas Department of Corrections, since there was a possibility that collateral legal consequences would be imposed on the basis of the challenged conviction. Reliance was upon Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). See also Ex parte Langston, 510 S.W.2d 603 (Tex.Cr.App.1974); Ex parte Langston, 511 S.W.2d 936 (Tex.Cr.App.1974). Cf. Ex parte Alegria, 464 S.W.2d 868 (Tex.Cr.App.1971).

In Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), the Supreme Court held that the petitioner Hensley was in custody for federal habeas corpus purposes despite the fact that he had been released on his own recognizance by the state court. The court reasoned that even though the petitioner was not physically incarcerated, the restraints on his liberty were severe and immediate.

We agree with the Supreme Court’s reasoning in Hensley and hold that one may be “in custody” for habeas corpus purposes even though he is out on bail or his own personal bond. Ex parte Snodgrass, 43 Tex.Cr.R. 359, 65 S.W. 1061 (1901); Ex parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593 (1903); Arts. 11.01, 11.04, 11.21-11.23, V.A. C.C.P. All cases holding to the contrary are overruled to the extent that they conflict with today’s holding.

The more difficult question is whether this particular case is an appropriate vehicle for habeas corpus or whether it is, as the State contends, merely an interlocutory appeal which this Court has indicated it will not entertain. See Texas Constitution, Art. V, Sec. 5; Ex parte Jones, 449 S.W.2d 59 (Tex.Cr.App.1970). We have concluded that the twenty-day requirement of Art. 42.12, Sec. 8(a), supra, is mandatory and that noncompliance with its terms requires a dismissal of the motion to revoke. We have also concluded that the writ of habeas corpus is a proper method for challenging such a noncompliance.

We begin with the pertinent language of Section 8(a), added by the Legislature in 1975:

“If the defendant has not been released on bail, on motion by the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing of said motion . . . ”
(Emphasis added).

This language is mandatory: It requires the court to hold a hearing within twenty days if a defendant is incarcerated pursuant to a motion to revoke and has filed his motion for a hearing. The language was clearly intended to guarantee that defendants who were not free on bond were to be given a speedier hearing than they might otherwise be afforded. The Legislature was obviously concerned that such defendants might spend an excessive amount of time in jail simply because they were unable to make bond and could not get an early trial setting due to the crowded condition of many trial courts’ dockets. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The trial court’s remedy in this case was to release appellant on his personal bond rather than granting his prayer that the revocation motion be dismissed. The question is whether this is an adequate remedy for a violation of the mandate of Section 8(a). Clearly, it is not.

The granting of a personal bond is a matter within the discretion of the court before whom the case is pending. Art. 17.03, V.A.C.C.P. See also Art. 17.031, V.A. C.C.P.; Art. 2372p-l, Sec. 3, Vernon’s Ann. Civ.St.; Art. 2372p-2, Sec. 1, Vernon’s Ann. Civ.St. It follows that there will be some situations where a personal bond will not be appropriately within the discretion of a trial court, and a personal bond should not be granted. We therefore decline to hold that a personal bond must be granted in all cases such as the one at bar, since to do so would violate the clear language of Art. 17.03, supra, that this decision is a discretionary one.

We also decline to hold that the trial court may release some defendants on personal bonds and others on bail bonds. See Art. 17.05, et seq., V.A.C.C.P. This would allow a total avoidance of the twenty-day requirement of Section 8(a) in cases where a defendant was unable to make a bail bond.

It is clear that the only relief compatible with the mandatory language and legislative purpose of Section 8(a) is to dismiss the motion to revoke if the twenty-day requirement is not complied with, and we so hold. However, we also hold that such a dismissal is without prejudice to the State’s right to file another motion to revoke, provided of course that the defendant shall not be deprived of his right to a speedy hearing, Ross v. State, 523 S.W.2d 402, 404 (Tex.Cr.App.1975), or his right to be free of undue prejudice and harassment, cf. Rutherford v. State, 16 Tex.App. 649 (Austin Term, 1884).

Nor can we agree that the case before us is an interlocutory appeal; rather, we conclude that the appellant’s choice of habeas corpus as a remedy was a correct one.

Article I, Section 12 of the Texas Constitution provides:

“The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.”

See also Article 1.08, Vernon’s Ann.C.C.P. Article 11.01, Vernon’s Ann.C.C.P., defines the writ, while Article V, Section 8 of the Texas Constitution and Article 11.05, V.A.C. C.P., give the District Court the power to issue the writ.

Article 11.04, V.A.C.C.P., provides:

“Every provision relating to the writ of habeas corpus shall be most favorably construed in order to give effect to the remedy, and protect the rights of the person seeking relief under it.”

See also Articles 11.21-11.23, V.A.C.C.P.

As we have noted, the appellant here has been unlawfully restrained in his liberty. Absent strong considerations to the contrary, he is entitled to seek relief by means of habeas corpus. Art. I, Sec. 12, Tex. Const., supra; Arts. 11.01, 11.04, supra; Ex parte Snodgrass, supra; Ex parte Foster, supra.

We do not believe that such considerations are present in the narrowly-defined situation before us here.

We first observe that the court’s refusal to entertain interlocutory appeals is based upon Art. V, Sec. 5 of the Texas Constitution. Ex parte Jones, 449 S.W.2d 59, 60, n. 4 (Tex.Cr.App.1970). However, that constitutional provision also gives this Court broad habeas corpus power. This habeas corpus power includes the authority to review habeas corpus determinations made by the district courts. Ex parte Nioblos, supra; Ex parte Mayes, supra; Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

Moreover, this case is especially susceptible to determination by habeas corpus, not only for the reasons already stated, but also because it involves a question of the very power of the lower court to proceed and to restrain the appellant’s liberty while it does proceed. In addition, the possibilities for mischief at the appellant’s expense are great; for example, if the appellant’s probation is not revoked, this issue will never reach this Court, yet the harm to appellant is evident. Finally, the question involved here is one which may be resolved quickly by a simple factual computation. No complex legal issues are involved; all that need be decided is whether the twenty-day requirement of Section 8(a) has been complied with. Thus, the vices which accompany piecemeal litigation are absent.

This is in contrast with the complex issues which are invariably presented when the question is, for example, the right to a speedy trial or the validity of an indictment. See, e. g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App., June 23, 1976).

We therefore hold that a violation of the twenty-day requirement of Article 42.12, Section 8(a), Vernon’s Ann.C.C.P., may be challenged by writ of habeas corpus prior to any proceedings on the motion to revoke. And since the State failed to proceed on the motion within twenty days of appellant’s request for a hearing, the judgment is reversed and the motion to revoke is ordered dismissed.

DOUGLAS, Judge

(concurring).

I concur only in the result and not to the language which purports to overrule many decisions not necessary to the decision.

      .These include Ex parte Dumas, 137 Tex.Cr.R. 524, 132 S.W.2d 883 (1939); Ex parte Villafranca, 147 Tex.Cr.R. 610, 183 S.W.2d 461 (1944); Ex parte Cravens, 153 Tex.Cr.R. 341, 220 S.W.2d 467 (1949); Ex parte Puente, 166 Tex.Cr.R. 439, 314 S.W.2d 306 (1958); Ex parte Brown, 374 S.W.2d 895 (Tex.Cr.App.1964); Ex parte Bradford, 383 S.W.2d 933 (Tex.Cr.App.1964); Ex parte Stewart, 456 S.W.2d 906 (Tex.Cr.App.1970) (two cases), and Ex parte Putnam, 456 S.W.2d 916 (Tex.Cr.App.1970).

      . Acts 1975, 64th Leg., p. 1243, ch. 467, Sec. 1, eff. June 19, 1975.

      . We do not believe that this portion of the statute denies equal protection on the basis of wealth. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

      . Ex parte Ainsworth, 532 S.W.2d 640 (Tex.Cr.App.1976), is not to the contrary. It merely states that there is no constitutional or statutory right to bail conferred by Section 8(a). It also holds that where a probationer is not released on bail, he has a right to “demand and secure a prompt hearing on the motion to revoke probation.” Ainsworth, supra, at 641.

      . And, since the writ was granted by the trial judge who subsequently denied relief, it is clear that appellant has a right of appeal to this Court. Nichlos v. State, 158 Tex.Cr.R. 367, 255 S.W.2d 522 (1953); Ex parte Mayes, 538 S.W.2d 637 (Tex.Cr.App., July 19, 1976).

      . Determination on appeal is also rapid. See Art. 44.33, Rule 4, V.A.C.C.P.; Arts. 44.34, 44.-36, V.A.C.C.P.

      . See Art. 5429b-2, Sec. 2.04, Vernon’s Ann. Civ. St.

      . We observe that these issues are not subject to habeas corpus determination, but must be decided on direct appeal, because of the mandate of Art. 27.03, V.A.C.C.P. Ex parte Jones, supra; Williams v. State, 464 S.W.2d 842 (Tex.Cr.App.1971).

      .We emphasize that the mandatory language of Section 8(a) does not apply until the defendant makes his request for a hearing.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Curtis ADAMS v. The STATE of Texas, Appellee.
    No. 52701.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.
    Charles M. Beacham, San Antonio, for appellant.

      Ted Butler, Dist. Atty., and E. Dickinson Ryman and Susan D. Reed, Asst. Dist. At-tys., San Antonio, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is an appeal from an order revoking probation wherein appellant stands convicted of the primary offense of robbery by assault in violation of Art. 1408, V.A.P.C. (1925). The punishment is imprisonment for five years.

An examination of the record reveals that the indictment for the primary offense of robbery by assault is fatally defective in that it fails to allege to whom the property allegedly taken belonged. Lucero v. State, Tex.Cr.App., 502 S.W.2d 128; Bouie v. State, Tex.Cr.App., 528 S.W.2d 587; French v. State, Tex.Cr.App., 531 S.W.2d 613; Arline v. State, Tex.Cr.App., 529 S.W.2d 73; Ainsworth v. State, Tex.Cr.App., 531 S.W.2d 613; Batro v. State, Tex.Cr.App., 531 S.W.2d 614; Page v. State, Tex.Cr.App., 532 S.W.2d 341; Pittman v. State, Tex.Cr. App., 532 S.W.2d 97.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.


author: CORNELIUS, Justice.

text:
    Elizabeth Ann NIXON, Appellant, v. Maury Raymond NIXON, Appellee.
    No. 8387.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 10, 1976.
    Kenneth D. Fuller, Terry & Fuller, Laurence E. Bergman, Garland, for appellant.
    Maury Raymond Nixon pro se.
   CORNELIUS, Justice.

This is a divorce action. The trial court granted the divorce, divided the community property, and ordered appellee to make specified payments to appellant aggregating $468.00 per month for support of the four minor children. Appellant complains of the property division and child support orders only, contending that they are not supported by sufficient evidence, are against the great weight and preponderance of the evidence, and constitute an abuse of the trial court’s discretion.

The casE is before us without a State- ■ ^ 1 -lie trial court made conclusions of law. ± essence of tne appeal is that the court’s own findings and conclusions militate against the judgment and, of themselves, reveal that it is erroneous and lacks support in the evidence. To illustrate, the court found that the minimum financial requirements of the children amount to $840.00 per month; that appellant is totally incapacitated and unable to make any contribution to those requirements; that appellee’s average net monthly income is $1,150.00; and that after the divorce he will be debt free. From these findings, appellant reasons that appellee, after paying the $468.00 per month child support, will have $682.00 in unencumbered funds for his monthly personal use. As the amount of child support ordered by the court is considerably less than the children’s minimum needs as found by the court, appellant says the court’s own findings show the amount to be grossly inadequate.

In determining the amount of child support, consideration must be given not only to the needs of the children, but to the ability of the father to pay. Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921); Angel v. Todd, 368 S.W.2d 224 (Tex.Civ.App. Houston 1963, no writ); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App. Houston 1965, writ ref’d n. r. e.). It is error to order support payments beyond the father’s ability to pay. Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App. Corpus Christi 1973, no writ). Appellant urges that the converse of that rule is also true — that if the father is the only one able to contribute, and he is shown to be able to supply all of the needs of the children, then it is error to order an amount less than needed. We agree with appellant’s proposition as a general statement of principle, but we do not agree with the conclusions she draws from the application of the general principle to the record in this case.

Although the court found that $840.00 was the minimum monthly requirement for the children, $100.00 of that amount is specified in the findings to be the average medical, dental and orthodontic expenses, and the judgment orders appellee to pay all medical and dental expenses in addition to the $468.00 per month support payments. Thus, according to the court’s findings, the amount appellee must actually pay is $568.00 per month, approximately one-half his income. Indeed, the medical and dental expenses may exceed the specified figure, thus increasing appellee’s obligations. Furthermore, although appellee was debt free at the time of the divorce, the findings do not reveal what expenses he will reasonably be expected to incur in earning his average income. More than likely the trial court took evidence of those anticipated expenses into consideration in determining appellee’s ability to pay child support. In the absence of a Statement of Facts, we must presume there was sufficient evidence to support the court’s findings. Arlington Bank & Trust v. Nowell Motors, Inc., 511 S.W.2d 415 (Tex.Civ.App. Fort Worth 1974, no writ); Davidson v. Davidson, 378 S.W.2d 702 (Tex.Civ.App. Texarkana 1964, no writ); Barreda v. Barreda, 216 S.W.2d 1009 (Tex.Civ.App. San Antonio 1949, no writ); 4 McDonald’s, Texas Civil Practice, Sec. 16.10(b). That includes the court’s finding that $568.00 per month was the proper amount for appellee to pay under the existing circumstances. Conceding that such amount does not meet the needs of the children, those needs must be balanced against the ability of the father to obtain a livelihood sufficient to pay the amount ordered. To require the father to pay an amount which would destroy his ability to earn, would constitute a detriment rather than an aid to the children. Kominczak v. Kominczak, 474 S.W.2d 749 (Tex.Civ.App. Houston-1st dist. 1971, no writ).

The trial court has a wide latitude of discretion in determining the amount of child support. Clark v. Clark, 496 S.W.2d 659 (Tex.Civ.App. Waco 1973, no writ); Schwartz v. Jacob, supra. The appellate court is not authorized to overturn that determination unless a clear abuse of discretion is indicated. Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App. El Paso 1961, writ ref’d n. r. e.). In the absence of a Statement of Facts showing what evidence was before the trial court on the question of appellee’s necessary expenses, we are unable to say that an order for him to pay approximately one-half his income in child support is against the great weight and preponderance of the evidence or indicates a clear abuse of discretion.

In dividing the community property, the court awarded appellant the Mercury automobile, all household equipment and furnishings, all cash, bank accounts, and all insurance policies on her or her children, all pension or retirement funds in her name and all personal items in her possession. Appellee was awarded those items of household furnishings then in his possession, any automobile in his possession, a Honda motorcycle and his personal effects. The parties owned a home which the court ordered sold with the proceeds being used to liquidate all community debts. The debts amounted to $3,162.00. The sum of $4,150.00 was received from the sale of the home, leaving a balance, after payment of debts, of $988.00 which was divided 60% to appellant and 40% to appellee. Appellant thus received $592.00 and appellee $395.00. Appellant contends this division was against the great weight and preponderance of the evidence and constituted an abuse of discretion. Again, in the absence of a Statement of Facts showing the circumstances and needs of the respective parties, we are unable to say that such a distribution was error. Barreda v. Barreda, supra.

Appellant’s points of error are respectfully overruled and the judgment of the trial court is affirmed.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Kingdon R. HUGHES, Appellant, v. Conan CANTWELL and First National Bank in Dallas, Co-Trustees under the Will of H. F. Gibson, Deceased, Appellees.
    No. 6479.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 11, 1976.
    Rehearing Denied Sept. 1, 1976.

      Kerr, Fitz-Gerald & Kerr, William Monroe Kerr, Harris E. Kerr, Midland, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, A. W. Walker, Jr., Dallas, for appel-lees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This case involves the interpretation of an oil and gas lease and related questions surrounding the “unless” clause thereof.

The trial Court sitting without a jury, held that the lease had terminated for failure to comply with the “unless” clause. We affirm.

Appellant Hughes leased from the Appellee a fractional mineral interest in Section 49, Block 34, H & TC Railway Company Survey, Ward County, Texas; the parties acted under the belief that the leased interest consisted of an undivided ¼28⅛ interest or a net five mineral acres of the 640-acre section. The lease, dated November 8, 1971, is in what may be termed a standard or the usual form, except for slight modification of a special warranty. It provided for a primary term of five years from November 8, 1971, and also provided for delay rentals of $1.00 per mineral acre. Hughes paid the delay rental for the period from November 8, 1972, to November 8, 1973. He did not pay the delay rental due for the period from November, 1973, to November, 1974. Atlantic Richfield, Lessee of the major undivided interest in the section, notified Hughes of its plans to drill a well on the section, and invited him to join in sharing the expense thereof. Hughes declined to join with Atlantic Richfield, and on April 14, 1973, Atlantic Richfield commenced the well on the property, which was completed as a rich producer on September 28, 1973.

As indicated, the trial Court held that the lease terminated on November 8, 1973, because of the failure of Hughes to pay the delay rental due. Hughes contends that the lease is still in effect because of the drilling of the well by Atlantic Richfield on the section. He contends that the “unless” clause of the lease is satisfied by Atlantic’s actions. The clause provides:

“5. If operations for drilling are not commenced on said land or on acreage pooled therewith as above provided on or before one year from this date the lease shall then terminate as to both parties, unless on or before such anniversary date Lessee shall pay or tender to Lessor * * * »

the rentals provided for by the lease. Appellant contends that the absence of the words “by the Lessee” after the word “commenced” in this Paragraph 5 of the lease will allow him to rely on the drilling and production of another to keep his lease alive. With this we are unable to agree.

We construe the contract as requiring that the Lessee must perform either directly or constructively as provided by the contract to keep it alive. In construing contractual obligations, it is the duty of the Court to ascertain the intention of the parties. In so doing, the instrument must be considered in its entirety. Klein v. Humble Oil & Refining Co., 126 Tex. 450, 86 S.W.2d 1077 (1935); Smith v. Liddell, 367 S.W.2d 662 (Tex.1963).

Looking at the contract as a whole, we find that to obtain its benefits there are certain requirements set out for Lessee, and throughout the instrument he is named as the one to meet such requirements. For instance, he is named in Paragraph 3 where it says: “The royalties to be paid by Lessee are: * * And in Paragraph 4 it recites: “Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease, * * And in the disputed Paragraph 5 it says that the lease will terminate unless “Lessee shall pay or tender * * And in Paragraph 6 it provides that if prior to the discovery of oil and gas on this land or other acreage pooled therewith “Lessee shall drill a dry hole * * * ”, the lease will not terminate if “Lessee commences additional drilling or reworking operations * * And Paragraph 11, the force majeure clause which will be discussed later, provides “Should Lessee be prevented from complying * * *.” Thus, throughout the lease in the instances noted and in others the obligations which must be performed are specifically assigned to the Lessee.

The stated purpose of the lease is for the drilling and producing of oil and gas. To accomplish that purpose, the land was let exclusively to the Lessee. It naturally follows that the intention of the parties was for the Lessee to do something to bring about that exploration and production of oil and gas. He could either do the drilling himself, or by the terms of the lease he was given permission to sublease or assign it to someone else, or to pool it with others and benefit from their drilling. As to this undivided interest, the Lessee had the exclusive control. This exclusive letting to him evidences an intention that the obligations were his alone, and that the acts of third parties or strangers to the contract would not suffice to meet his requirements of performance. He could meet his drilling obligations constructively by pooling with others, or by assignment; had the parties included in Paragraph 5 that the operations had to be commenced “by the Lessee”, it would have made the contract ambiguous in that it otherwise provides that the operations could be done by an assignee of the Lessee or one with whom he has pooled the interest.

Even though there was drilling and production by another, on the failure of Appellant Hughes to either pay the delay rental or to commence operations for drilling on the leased premises, personally or constructively, before the anniversary date of November 8, 1973, the lease automatically terminated. No Texas Court has previously decided this exact question, but at least five cases can be found which hold that the drilling must be done by the Lessee, or that the Lessee must participate or pay his share of the drilling in order to keep his lease alive. Those cases are: Earp v. Mid-Continent Petroleum Corporation, 167 Okl. 86, 27 P.2d 855 (1933); Willson v. Superior Oil Company, 274 S.W.2d 947 (Tex.Civ.App.-Texarkana 1954, writ ref’d, n. r. e.); Mattison v. Trotti, 262 F.2d 339 (5th Cir. 1959); Wagner v. Mounger, 253 Miss. 83, 175 So.2d 145 (1965), and Schank v. North American Royalties, Inc., 201 N.W.2d 419 (N.D.1972). In Mattison v. Trotti, supra, the 5th Circuit applied to a Texas case what it thought was the Texas law and we agree with its holding. Willson v. Superior Oil Company, supra, did not decide the precise question, but did so indirectly in holding that the lease was kept alive when the lessee entered a joint operating agreement with the lessee of another undivided interest and paid his proportionate part of the cost of drilling a well on the combined lands. That case is also important for its concise statements of the law of co-tenancy, and eliminates any contention that the Lessee here was the beneficiary of the drilling by his co-tenant.

“Each owner in a co-tenancy acts for himself and no one is the agent for the other nor has any authority to bind the other merely because of the relationship unless authorized to do so. Myers v. Crenshaw, Tex.Civ.App., 116 S.W.2d 1125, affirmed 134 Tex. 500, 137 S.W.2d 7; Taylor v. Brindley, 10 Cir., 164 F.2d 235.”

Appellant contends that the force majeure clause would operate to extend the lease, at least as to those formations from which the Atlantic Richfield well is producing. The “force majeure” in this case would be the Railroad Commission’s spacing rules for gas wells. We overrule this contention because the parties are presumed to have contracted with knowledge of the law, the Railroad Commission’s spacing rules; and for the further reason that the lease itself takes care of such situations as it provides that the Lessee can pool when he thinks it is necessary or advisable to do so to properly operate the premises in compliance with the Railroad Commission’s spacing rules. Lessee was not prevented from drilling, but was in fact offered the opportunity to combine with Atlantic Richfield for drilling, almost certainly the only way he could financially afford to drill the Viuth interest in the first place.

We have considered Appellant’s other points of error, and overrule them without discussion, for to do so would only lengthen this Opinion and add nothing to the jurisprudence of the State.

The judgment of the trial Court is affirmed.


author: HALL, Justice.

text:
    CENTRAL TEXAS CLARKLIFT, INC., et al., Appellants, v. Ray SIMMONS, Appellee.
    No. 5604.
    Court of Civil Appeals of Texas, Waco.
    Aug. 12, 1976.
    Rehearing Denied Sept. 16, 1976.

      Larry E. Kelly, Waco, for appellants.
    Charles E. Wallace, Waco, for appellee.
   HALL, Justice.

Ray Simmons brought this suit against Central Texas Clarklift, Inc., and Don Moes for damages, alleging the defendants wrongfully interfered with his employment contract with Trans Lift Corporation of Dallas, Texas, and thereby caused Trans Lift to fire him.

Simmons formerly owned Central Texas Clarklift, Inc., and sold the business to Moes in March, 1975. Pertinent to this appeal, the contract of sale contained these provisions:

Seller recognizes and acknowledges that the list of customers of this business is a valuable, special and unique asset and covenants that it will not for a period of three (3) years after this date, disclose the list of customers or any part thereof to any person, firm, corporation, association or other entity. Further, for a period of three (3) years after this date, it will not represent, contact, solicit or service directly or indirectly in its own behalf, or in behalf of any other person, firm, partnership or corporation, any customer heretofore serviced by Seller; and further, for said period of three (3) years from this date, will not within the twenty seven (27) county area awarded to Seller for the operation of the Clark Equipment Company Dealer Franchise, directly, or indirectly, own, manage, operate, control, participate in or be connected with in any manner with the ownership, management, operation and control of any business similar to, or of the same nature as, the business presently being operated by Seller; and Purchaser shall be entitled to an injunction to restrain Seller from the commission of any of these prohibited acts. Nothing herein shall be construed as prohibiting Purchaser from pursuing any other remedies available to it for any breach or any threatened breach of the provisions of this paragraph by Seller. Arbitration — Upon the occurrence of a dispute relative to any provision of this Agreement or the application of any provision of this Agreement or if a price determination is required by any Paragraph herein, the same shall be submitted to arbitration under the terms and conditions of the “Texas General Arbitration Act” . . .

The plaintiff pleaded the fact of the sale to Moes and the non-competition agreement between the parties. He then alleged that in January, 1976, he began employment with Trans Lift as its operations manager for the north-Texas area; that when the defendants learned he was working for Trans Lift they set out to interfere with his employment; that they sent letters and made telephone calls to Trans Lift asserting he was violating the non-competition agreement and that Trans Lift was willfully abetting this violation; that despite assurances by Trans Lift that he was not violating the agreement, the defendants threatened Trans Lift with a lawsuit if it did not take affirmative action in the matter; that this harassment and the threats of lawsuits caused Trans Lift to fire him; that the defendants’ course of action was willful and malicious and “designed to harass and damage” him; and that his damages total $18,-900.

The defendants answered with special and general denials, and also pleaded that this dispute falls within the ambit of the arbitration agreement between the parties. Citing the provisions of the Texas General Arbitration Act set forth in Articles 225 and 235, Vernon’s Ann.Tex.Civ.St., they moved the court to compel arbitration. The motion was overruled, and it is this ruling which is now before us for review. The only proof adduced on the hearing of the motion was the sales contract.

Although the order in question is an interlocutory one, it is expressly appealable under the provisions of Article 238-2, Vernon’s Ann.Tex.Civ.St.

The defendants point to the part of the non-competition agreement which permits them to “pursue any remedies available” to them for a breach or threatened breach by Simmons. They argue that the rights of the parties in this lawsuit necessarily turn on answers to the questions of whether Simmons’s employment with Trans Lift violated the agreement, and, if it did, whether the “remedy” they used to end the violation was a reasonable one within the agreement. They say they are entitled under the contract to have these questions submitted to arbitration. We disagree.

The question of whether Simmons was competing with the defendants during his employment with Trans Lift was “a dispute relative to [a] provision of [the contract of sale]” within the meaning of the arbitration agreement, and the defendants would have had the remedy of arbitration available for settlement of the question. But the self-help of committing an intentional tort against Simmons was not legally available to the defendants for settlement of the dispute, and whether the defendants willfully and maliciously and designedly acted to interfere with or end Simmons’s employment with Trans Lift is not a dispute relating to the contract of sale and accordingly does not fall within the terms of the arbitration agreement.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    SOUTHWESTERN INVESTMENT COMPANY, Appellant, v. Robert W. MANNIX, Appellee.
    No. 5630.
    Court of Civil Appeals of Texas, Waco.
    Aug. 12, 1976.
    Rehearing Denied Sept. 16, 1976.

      Cleo G. Clayton, Jr., Clayton & Stubble-field, Amarillo, for appellant.
    Robert M. Kunczt, Kelleher, Kunczt & Loveland, Inc., San Antonio, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Southwestern Investment from summary judgment for $731.68 statutory damages, plus $1000. attorneys’ fees, in favor of plaintiff Mannix.

Plaintiff Mannix sued defendants Banner Sales Company and Southwestern Investment, alleging he purchased stereo equipment from Banner January 22, 1974 for $381.04 down payment and an unpaid balance of $800.; that he signed a sales contract and finance agreement for the unpaid balance on a form provided by Southwestern, and which Southwestern acquired by assignment; that such transaction violated the Texas Consumer Credit Code and the Federal Truth In Lending Act in a number of particulars; for which plaintiff sought judgment against both defendants for $731.68 statutory damages plus attorneys’ fees. Plaintiff thereafter moved to sever and dismiss as to Banner; and moved for summary judgment against Southwestern.

The trial court granted both motions; held plaintiff entitled to judgment for 6 State and 5 Federal violations; and rendered judgment for plaintiff for $731.68, plus $1000. attorneys’ fees.

Defendant appeals on 11 points contending the trial court erred in each of its conclusions that defendant was guilty of 6 violations of the Texas Consumer Credit Code (1 thru 6), and 5 violations of the Federal Truth In Lending Act (7 thru 11).

The parties have stipulated that if the record on summary judgment sustains the trial court on any State violation and on any Federal violation (except a violation in which a delinquency charge is violated), that the statutory damages awarded by the trial court are correct, and that the $1000. attorneys’ fees awarded by the trial court are reasonable.

We will consider only defendant’s points 2, 6 and 7.

Point 2 asserts “The trial court erred in concluding the contract improperly provides for collection of delinquency charge on any installment ten days or more past due in violation of Article 5069-6.02(11) which authorized recovery herein by appel-lee”.

Article 5069-6.02(11) provides “the holder of any retail installment contract if it so provides may collect a delinquency charge on each installment in default for a period of more than ten days in an amount not to exceed five percent of each installment or Five Dollars, whichever is less * * *
Article 5069-8.01 provides “Any person who violates this Subtitle by contracting for, charging or receiving interest, time price differential or other charges which are greater than the amount authorized by this Subtitle * * *

Defendant contracted for the right to collect a delinquency charge for a period in excess of that authorized by the Statute, thus violating the provisions thereof.

Point 2 is overruled.

Point 6 asserts: “The trial court erred in concluding the contract provides for the acceleration of the unpaid balance and collection of maximum rate of interest thereon in event of default in violation of Article 5069-6.02(10).

The contract under “Terms and Conditions” provides: “ * * * Debtor agrees to pay the Total of Payments designated herein to order of Secured Party in Amaril-io, Potter County, Texas, with interest thereon after maturity at the highest legal contract rate”.

“Total of Payments” with interest does not mean “unpaid balance” or “unpaid principal”; it means the total of payments as provided for in the installment contract plus the finance charges. And defendant by its counterclaim in this case sought collection of the total payments due, being the unpaid balance plus the unearned finance charges.

Acceleration of unearned finance charges is a violation of Article 5069-8.01. Moore v. Sabine National Bank of Port Arthur, Texas, CCA, NRE, 527 S.W.2d 209.

In the instant case the trial court correctly held the contract violated Article 5069-6.02(10) by providing for the acceleration of “Total of Payments” without providing for deduction of unearned finance charges (a violation of Article 5069-8.01).

Point 6 is overruled.

Point 7 asserts “The trial court erred in concluding the contract in incorporating the disclosure statement contract and security agreement on a single sheet of paper failed to make all necessary disclosures on the same side of the page above and adjacent to the place for the customer’s signature in violation of Regulation Z, Section 226.8(a)(1)”.

Regulation Z, Section 226.8(a) of the Federal Truth In Lending Act provides “ * * all of the disclosures shall be made together on either: (1) The note or other instrument evidencing the obligation on the same side of the page and above or adjacent the place for the customer’s signature; or (2) One side of a separate statement which identifies the transaction”.

In this case the agreement is written on both sides of a single page. According to the Interpretive Ruling of the Federal Reserve Board, in instances where both the face and reverse side are used, both sides must contain the statement. “NOTICE: See other side for important information”, Here the foregoing statement does not appear on either side of the agreement. See: McDonald v. Savoy, CCA, NWH, 501 S.W.2d 400.

Regulation Z was violated.

Point 7 is overruled.

Points 2 and 6 are concerned with State violations and point 6 is not a violation in which a delinquency charge is violated; point 7 is concerned with a Federal violation. Under the parties’ stipulation the judgment of the trial court is thus AFFIRMED.


author: WALTER, Justice.

text:
    Sid MERCHANT et al., Appellants, v. FARMERS INSURANCE GROUP, Appellee.
    No. 4934.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 12, 1976.
    Rehearing Denied Sept. 2, 1976.

      Robert G. Chappell, Sam Moore, Robinson, Hanna, Burke & Moore, Inc., Nelson Quinn, Quinn & Price, Abilene, for appellants.
    Allen D. Glenn, Glenn & Thomas, Abilene, Alvin Walvoord, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, for appellee.
   WALTER, Justice.

J. C. White recovered a judgment against Charles Cozby and Gene Scott for $5,000.00 actual and $2,500.00 exemplary damages in connection with the purchase by White of a Caveman motorhome from Cozby.

Gene Scott has appealed and contends there is no evidence to support the jury finding that he was connected with Cozby in the fraudulent sale of the motorhome. Special Issue No. 5 and the jury’s answers are as follows:

“Were Charles Cozby and Gene Scott connected in any way in any false representation in the sale of the motor home, either by commission, knowledge and procurement, or by authority and consent? Indicate your answer by a ‘yes’ or ‘no’ answer in the appropriate space provided.
CHARLES COZBY GENE SCOTT
1. COMMISSION . YES.. YES
2. KNOWLEDGE AND PROCUREMENT YES YES
3. AUTHORITY AND CONSENT YES YES

White purchased the recreational vehicle from Cozby with the proviso he would be furnished good title. Seller was not able to deliver title. A Texas Ranger took the motorhome from White and informed him it had been stolen from Vivian N. Todd of Grants Pass, Oregon.

White contends:

“There was legal evidence connecting Gene Scott with Charles Cozby in false representation in the sale of the motor home to J. C. White.” (Emphasis added)

He asserts the following evidence “indicates Cozby and Scott combined in the venture”:

“1. The $2,000.00 personal check made payable to C C Motors with a first endorsement by Charles Cozby and then endorsed by Gene Scott.
2. Charles Cozby directed that J. C. White cause the Abilene Savings and Loan check for $3,000.00 to be made out entirely to Gene Scott.
3. Charles Cozby told J. C. White during the negotiations for the motor home that Gene Scott is “in on it with me”;
4. The motor home was parked in front of the Gene Scott home and hooked to electricity there, which indicated the exercise of some ownership rights;
5. When J. C. White confronted Gene Scott about not getting the Certificate of Title, Gene Scott offered to see about getting it, indicating, at least, knowledge of the deal.
6. That even though Charles Cozby had no access to the books or letterhead of Gene Scott, he furnished a fictitious receipt which was written on Gene Scott’s letterhead for the $3,000.00 Abilene Savings and Loan check.”

The testimony of White that Coz-by told him Scott was “in on it with me” is hearsay as to Scott and amounts to no evidence. The other items outlined above fall short of constituting evidence of probative value to establish Scott acted with Coz-by “in any way in any false representation in the sale of the motor home.”

We have considered the entire record and hold the finding that Scott was connected with Cozby in any false representation in the sale of the motorhome either by commission, knowledge and procurement, or by authority and consent is against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The judgment, in so far as Scott is concerned, is reversed and rendered that White take nothing from Scott. It is further ordered that Scott recover no interest in the motorhome.


author: RAY, Justice.

text:
    SAMMONS ENTERPRISES, INC., Appellant, v. Darrell F. MANLEY and Conway Phillips, Appellees.
    No. 8343.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 17, 1976.
    Rehearing Denied Sept. 28, 1976.

      Mike Joplin, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.
    James E. Coleman, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellees.
   RAY, Justice.

This is a suit to recover money for the sale of stock under stock option re-purchase agreements. Darrell F. Manley and Conway Phillips, appellees (plaintiffs), instituted suit against Sammons Enterprises, Inc., appellant (defendant), to recover the fair market value of 15,000 shares of Sammons Enterprises, Inc. stock. Following a jury verdict finding the price to be $457.00 per share in answer to Special Issue No. 1, the trial court disregarded Special Issue No. 2 and entered judgment for appellees in the total sum of $7,606,608.24 plus interest from date of judgment. The judgment of the trial court will be affirmed.

This is a very complex case in which both parties have been represented by excellent counsel who have presented thorough briefs for consideration by this Court. Appellant has submitted four points of error for our consideration.

In 1969, Darrell F. Manley, then President of Sammons Enterprises, Inc., and Conway Phillips, then Vice President of Sammons, were issued options by Sammons to purchase at $320.00 per share 10,000 and 5,000 shares, respectively, of the common stock of Sammons. The optionees agreed to remain in the employment of the company for one year, and the options were to last for five years. The agreements also provided to each optionee a “put” giving him the right to sell back to the company all of the shares acquired under exercise of his options at any time within twenty years after the exercise of the option to purchase, at the “fair market value” of such shares of stock at the end of the month of the date of re-sale. This right of re-sale or “put” was granted to Manley and Phillips in order to provide a market for any shares purchased pursuant to qualified stock option agreements because the stock of Sammons was not traded in any public market. The agreements provided that in the event Sam-mons stock ever had a market on any exchange or over the counter and the “put” was not necessary to provide a market, then the right of re-sale to Sammons would terminate.

The agreements further provided that in the event of the exercise of the “put” by Manley or Phillips, “fair market value” of the shares would be determined by the agreement of the parties, and failing such agreement, by an appraisal. The Trust Departments of the First National Bank in Dallas and the Republic National Bank of Dallas, together with a third appraiser appointed by the Trust Departments of such banks, were named as appraisers.

On June 28, 1973, Manley and Phillips exercised their stock options paying $3,200,-000.00 and $1,600,000.00, respectively, to Sammons and were issued 10,000 shares and 5,000 shares of Sammons Enterprises, Inc. stock. Immediately, Manley and Phillips exercised their right of re-sale of such shares at the then fair market value of such shares as of June 30, 1973, by endorsing such shares in blank and re-assigning them to Sammons. Sammons accepted such shares, cancelled and treated them as treasury shares, and set up a liability on its books for the payment of the purchase price of the shares.

Subsequently, the parties failed to agree on the fair market value of the shares of stock of Sammons. Thereafter, the First National Bank and the Republic National Bank were requested to appraise the shares of stock, but refused to do so without obtaining agreements from Sammons, and from Manley and Phillips amending the stock option agreements and imposing additional requirements as conditions to the ap-praisement by the banks. Manley did not' agree to amend the stock option agreements and no appraisal took place. Phillips indicated that he was willing to agree to all the extra-contractual conditions imposed by the Banks, but the Banks required Manley’s agreement also. Suit was filed by Darrell F. Manley on March 8, 1974, and Conway Phillips intervened on July 25, 1974, for damages for breach of contract of Sammons to pay the fair market value for the shares which Sammons had accepted for purchase on June 28, 1973.

Upon the trial of this cause, the jury determined that the fair market value of the shares of stock of Sammons as of June 30, 1973, was $457.00 per share. There has been no appeal by any of the parties relative to the jury’s determination of the price of the shares, nor has any appeal been taken relative to the method employed by the jury in determining the fair market value as of June 30, 1973. The jury, in answer to Special Issue No. 2, found that the “actions or words of plaintiffs or their counsel were a proximate cause of the failure of the appraisement to take place.” The court disregarded this finding of the jury and entered judgment for appellees in accordance with the jury verdict as to the fair market value of the Sammons stock.

Manley and Phillips terminated their employment with Sammons in the early part of 1972, and subsequently, on June 28, 1973, they simultaneously gave notice of their exercise of their options, presenting cashier’s checks and investment representation letters in connection therewith and immediately exercised their “puts” by endorsing and delivering six stock certificates back as soon as they were received. The controversy revolves around the failure of the appraisal to take place and the subsequent determination by the jury of the fair market value price. Appellant contends that the stock option agreement required appraisal of the stock as a condition precedent to the enforceability of requiring Sammons to pay any purchase price for the 15,000 shares of stock delivered back by Manley and Phillips. Appellant also contends that Special Issue No. 2 was an ultimate issue and not subject to being disregarded by the trial court. Special Issue No. 2 is as follows:

“Do you find from a preponderance of the evidence that the actions or words of Plaintiffs or their counsel were a proximate cause of the failure of the appraisement to take place?
Answer: ‘Yes’ or ‘No’.
ANSWER: Yes_
‘Proximate cause’ means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.”

The paragraphs in the agreements with Manley and Phillips as to determination of the “put” price were as follows:

“6.02 Determination of, and Payment of Put Price, etc. The Put Price shall be determined by appraisement unless Op-tionee and the Company acting through its Board of Directors shall agree on the Put Price. Such appraisement shall be based on the decision of the majority of three competent appraisers, two of whom shall be representatives from the Trust Department of the Republic National Bank of Dallas and the First National Bank in Dallas, respectively, and the third shall be an appraiser appointed by the other two appraisers. The Put Price as determined by such appraisement shall be conclusive and binding upon the Company and Optionee. The Put Price (together with accrued interest at the rate of 6% per annum from the date of exercise of the Put) shall be paid by the Company to Optionee within ten (10) days after issuance by the appraisers of their report setting forth the Put Price. All costs and expenses of the appraisement shall be borne by the Company.”

Section 6.01(b) of the Stock Option Agreement provided the guidelines for determining the put price as follows:

“(b) Put Price. The price which the company shall pay to Optionee upon the exercise of the Put shall be an amount in cash equal to the aggregate fair market value of all the shares subject to the Put which shall be determined as of the last day of the calendar month in which the Put was exercised in accordance with the principles of valuation established for Federal estate tax purposes in valuing stock of a closely-held corporation (including those principles set forth in Section 2031(b) IRC.”

The posture in which we find this case is that appellees have fully performed their portion of the contract and appellant has performed all of its obligations with the exception of not having paid the purchase price of the stock. Sammons contends that it is not obligated to pay the purchase price until the shares have been appraised and that if the shares have not been or cannot be appraised, then the contract is unenforceable and appellees are not entitled to any relief.

It is undisputed that .both parties requested the two banks named in the agreement to appraise the stock. Counsel for one of the appellees questioned whether or not the two banks might not have conflicts of interest since appellant was a sizable depositor in both banks and further that Mr. Charles A. Sammons was on the Board of Directors of Republic National Bank of Dallas and helped supervise the Trust Department through which the appraisal would be made and the fact that Mr. Peterson, head of the Trust Department of Republic National Bank, was a director of Sammons Enterprises, Inc. This was a legitimate inquiry on the part of counsel, if not both an obligation and duty on his part to protect his client’s interests to see that a fair appraisal was performed. However, the banks decided they would not appraise the stock unless appellant and appellees provided them with hold harmless and indemnity agreements. Appellees agreed to the hold harmless portion but would not agree to execute indemnity agreements. The stock option agreements did not require appellees to do anything beyond letting the two banks appraise the stock. The banks ultimately refused to make the appraisal when appellees would go no further than the contractual obligations imposed upon them by the stock option agreements. The stock was in the hands of appellant; the records from which the appraisal was to be determined were in the hands of appellant and the agreement required appellant to pay for the appraisal. Appellees’ only obligation, if it can be said to be an obligation, was to allow the two banks to make the appraisal. Appellees’ counsel had a duty in representing his clients to make sure that the appraisal was fair, just and unbiased. The two banks owed none of the parties an obligation to appraise the stock since they were not parties to the stock option agreements nor did they know about the agreements until after the agreements had been executed.

Appellant’s first two points of error are as follows:

“FIRST POINT: The trial court erred in rendering judgment for Appellees for a total of $7,606,608.24 plus interest from date of judgment since it was undisputed that the appraisement procedure set forth in the contract between the parties had not been carried out and the jury found that it was Plaintiffs who had prevented the appraisement from taking place.
SECOND POINT: The trial court erred in disregarding the jury finding in answer to Special Issue No. 2.”

Appellant contends that the appraisal provision of the contracts, See. 6.02, supra, represents the essential means of determining the fair market value price and amounts to a condition precedent to any duty to pay. The appellant urges that the trial court not be allowed to substitute its will for this expression of intent of the parties.

The appellees deny that the appraisal mechanism is a condition precedent to the appellant’s duty to pay, contend that it is only incidental to the main purpose of the contract, and urge that it be excused because the banks failed to act.

It is the position of the appellees that the appraisal mechanism of Sec. 6.02, supra, is merely an incidental means of implementing the essential manner of calculating the “put” price set out in See. 6.01(b). The appellees state the general rule that courts are disinclined to construe stipulations in contracts as conditions precedent unless compelled to do so by plain and unequivocal language of contract. 17A C.J.S. Contracts § 338, p. 322.

Whether the appraisal provision is a condition or a covenant is not highly important since impossibility of performance may excuse nonperformance of even a condition precedent if the occurrence of the condition is not a material part of the exchange for the_ promisor’s performance and discharge of the promisor would operate as a forfeiture. Langdeau v. Pittman, 337 S.W.2d 343 (Tex.Civ.App. Austin 1960, writ ref’d n. r. e.); 17A C.J.S. Contracts § 463(1) (1963). This same rule was applied in Lesikar Construction Company v. Acoustex, Inc., 509 S.W.2d 877 (Tex.Civ.App. Fort Worth 1974, writ ref’d n. r. e.). Compliance with a contract provision that a subcontractor furnish the general contractor with an affidavit showing that all bills for labor and materials had been paid, was not required as a condition precedent to the subcontractor’s recovery of the balance due. The Court cited with approval the Restatement of the Law of Contracts, Vol. 1, Sec. 302, which provides as follows:

“Excuse of Condition that Involves Forfeiture.
A condition may be excused without other reason if it’s requirement (a) will involve extreme forfeiture or penalty, and (b) it’s existence or occurrence forms no essential part of the exchange for the promisor’s performance.”

There the court held that performance of the condition formed no part of the things that the contract called for plaintiff to do for which defendant agreed to pay.

The contract before us is essentially one of compensation of corporate executives. The appellees, Manley and Phillips, were given an option to purchase shares from Sammons with the right of re-sale to the corporation. The purchase price was fixed by contract. The re-sale price was to be set by appraisers who were to employ a method of calculation set by the contract. The essence of the contract was the exercise of the option by appellees to purchase, with the right of re-sale to the corporation at the fair market value. The object of the contract was not the appraisal mechanism. It was possible for appellant to foresee at the time the option agreement was executed that the banks and conflicts of interest and might not be able to act, and thus it became the duty of appellant, if it wanted to protect itself through the appraisal process, to have provided for other appraisers in the event one or both banks failed to act. The trial court was correct in not allowing a forfeiture where appraisal was not the object of the contract, but only incidental to arriving at the fair market value of the “put” price. See. 6.01 of the agreement provided the guidelines for arriving at the “put” price which appellant could have insisted that the jury follow in arriving at the measure of damages. The appellees had fully performed and nothing else was left for appellant to do but pay the fair market value for the stock when it could not get its named appraisers to act. Langdeau v. Pittman, supra; Lesikar Construction Company v. Acoustex, Inc., supra.

Appellant cannot rely upon the answer to Special Issue No. 2 which found that appellees were a proximate cause of the failure of the appraisement to take place. The trial court rightfully disregarded the issue because it was not an ultimate issue. The issue itself contained no instructions nor was it tied directly to the obligation of the parties contained in the contract. The appellant did not establish that appel-lees had a duty to refrain from inquiring as to whether or not the banks could be fair in their appraisal in view of the conflicts of interest, nor was it established that appel-lees had a duty to agree to provisions for appraisal outside the terms of the contract. While it is true that one cannot ordinarily utilize advantageously his own fault to escape contractual obligations, it was not established that the actions of appellees or their counsel constituted wrongdoing or misconduct as would amount to a breach of duty. The exchange of letters, expressions of doubt, and adherence to the terms of the original contract cannot be said to be the type of misconduct which would bar recovery. The trial court was justified in disregarding such an issue as immaterial to ultimate liability. Tex.R.Civ.P. 279; Tex.R.Civ.P. 301; C & R Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Nealy v. Fidelity Union Life Insurance Company, 376 S.W.2d 401 (Tex.Civ.App. Dallas 1964, no writ); 4 McDonald’s, Texas Civil Procedure, Sec. 17.31(c) (1971).

The legitimate exercise of one’s lawful right of inquiry, though it may have in fact caused the banks to refuse to appraise the stock, is not the kind of conduct which would render the contract unenforceable with a resulting forfeiture. Appellant’s first and second points of error are overruled.

Appellant’s third point of error insists that appellees did not have clean hands in connection with the transactions involved, having intentionally signed investment letters containing false statements and misrepresentations. The appellant does not assert fraud or misrepresentation as would invalidate the contract, but rather it is asserted that the making of false statements in writing should prevent the operation of equity in favor of appellees. Appellant’s point of error is not well taken since this is a suit for damages for breach of contract and not a suit for equitable relief. Once appellees had fully performed, the only action required of appellant following the failure of the appraisal to occur, was to pay appellees the fair market value of the stock. Failure of appellant to pay the fair market value amounted to a breach of the contract. Appellees sued for the fair market value of the stock which was a measure of damages. Since this was an action at law for damages for breach of contract, appellant’s point of error is without merit and is therefore overruled. The equitable remedy of specific performance is not ordinarily available when the complaining party can be fully compensated through the legal remedy of damages. 52 Tex.Jur.2d, Specific Performance, Sec. 22, p. 542 (1964); 81 C.J.S. Specific Performance § 80, p. 590 (1953).

Appellant’s claim that appellees lacked “clean hands” is without support in the evidence since it is referenced to an affidavit and certain interrogatories which were not introduced into evidence. It is fundamental that “in a jury trial or trial to the court, answers to interrogatories made pursuant to Rule 168, Texas Rules of Civil Procedure must be introduced into evidence in order to be of any probative value.” Richards v. Boettcher, 518 S.W.2d 286, 288 (Tex.Civ.App. Texarkana 1974, writ ref’d n. r. e.). The affidavit, even if it had been offered into evidence would have been inadmissible as hearsay, and would have been without probative force. Halliday v. Lambright, 29 Tex.Civ.App. 226, 68 S.W. 712 (1902, no writ); Ward v. National Benev. Soc., 155 S.W.2d 994 (Tex.Civ.App. Galveston 1941, no writ). Appellant’s third point of error is overruled. Appellant’s fourth point of error is overruled for the same reasons and for the additional reason that it was not properly preserved by an assignment of error in the trial court. Tex.R. Civ.P. 374; Smith v. Brock, 514 S.W.2d 140 (Tex.Civ.App. Texarkana 1974, no writ).

The judgment of the trial court is affirmed.


author: WARD, Justice.

text:
    Odell WALKER and Thomas Walker et al., Appellants, v. The STATE of Texas, Appellee.
    No. 6541.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 18, 1976.
    Rehearing Denied Sept. 15, 1976.
    Ater & Hirseh, H. Thomas Hirseh, Odessa, for appellants.
    James A. Mashburn, Dist. Atty., Jack K. (Rusty) Wall, Asst. Dist. Atty., Midland, for appellee.
   OPINION

WARD, Justice.

This is an attempted appeal from an order entered after indictment in a criminal felony case which held that the sureties on the defendant’s bond were insufficient and which ordered the arrest of the defendant. The appeal is dismissed.

Indictment was returned in the District Court of Midland County which charged Juan Zarate with a felony and was filed as Cause No. 5312 in that District Court. At that time, there was outstanding an appearance bond in the amount of $40,000.00 executed by Zarate with Odell and Thomas Walker as sureties. After the indictment had been returned, a hearing was held in that criminal case pursuant to the State’s motion that the sureties on the appearance or bail bond should be held insufficient. The District Court thereafter entered its order in the criminal case, which held that the sureties were insufficient and further ordered the arrest of Zarate until a new $40,000.00 bond with proper sureties was made. On January 2nd, 1976, Zarate turned himself in to the Sheriff’s office, and on January 8th, 1976, he executed a new bond for $40,000.00 with other sureties and was released from custody.

The Appellants Zarate and the two Walkers appealed to both the Court of Criminal Appeals and to this Court of Civil Appeals. The Court of Criminal Appeals has held it had no jurisdiction to entertain the appeal from the pretrial order entered regarding the insufficiency of the sureties on the original bond and dismissed that appeal. Walker v. State, 537 S.W.2d 36 (Tex.Crim.App.1976).

Just how the present proceeding, which occurred in the course of a criminal case not yet tried, can be appealed to this Court is not explained by the Appellants. We find no statute or authority authorizing the appeal.

Further, there is no general authority for civil appeals except from final judgments of the District or County Courts. The special statutes for interlocutory appeals from non final judgments do not cover the present instance. Appellate Procedure in Texas, Section 2.2; 4 McDonald Texas Civil Practice, Section 17.03.2.

The argument concerning the mootness of this appeal because of the release of Zarate from custody under his new bond is not reached. We have no jurisdiction of the proceeding, and the appeal is dismissed.


author: JAMES, Justice.

text:
    David S. BROWN et al., Appellants, v. TEXAS EMPLOYMENT COMMISSION and Nipak Inc., Appellees.
    No. 5557.
    Court of Civil Appeals of Texas, Waco.
    Aug. 19, 1976.
    Rehearings Denied Sept. 9, 1976.

      Clinton & Richards, Austin, for appellants.
    Michael E. Stork, Austin, Peter R. Thompson, Dallas, for appellees.
   OPINION

JAMES, Justice.

This is an unemployment compensation case. Appellants David S. Brown and two others (hereinafter called “claimants”) claim benefits under the Texas Unemployment Compensation Act. The question before us is whether claimants are disqualified from receiving such benefits under the provisions of Article 5221b-3(d), Vernon’s Annotated Texas Statutes. The Texas Employment Commission (hereinafter called “the commission”) by its order held claimants to be disqualified. Claimants secured judicial review of the Commission’s order under the provisions of Article 5221b-4(i) by filing this suit against the Commission and Nipak, Inc. (hereinafter called “the company”) in the District Court of Navarro County, Texas. The trial court after hearing entered judgment that claimants were disqualified from receiving unemployment compensation benefits, thereby upholding the commission’s order and held that claimants take nothing, from which claimants appeal. We reverse the trial court’s judgment and hold that Appellant-Claimants are entitled to the unemployment compensation benefits in question.

Claimants were members of the Oil, Chemical, and Atomic Workers Union, Local No. 4-478 (hereinafter called “the union”) at all times material to this controversy. Claimants were employees of the company at its manufacturing plant located at Kerens, Texas, and were working under a collective bargaining agreement due to expire June 30, 1971. The union and the company were negotiating a new contract when the old contract expired on June 30, 1971. It was mutually agreed at that time to extend the old contract until July 8,1971, to provide additional time for negotiations. On the last-named date it was agreed that a proposal made by the company would be submitted to the union local membership on July 9, 1971; accordingly the existing contract was again extended to 5:00 P.M. July 9,1971. The union local membership voted to reject the company’s proposal; whereupon the union’s representative, Billy R. Butler contacted the company’s plant manager, C. R. High, by telephone, told him that the proposal had been rejected and that the federal mediator would be contacted so that further negotiations could be held. High requested Butler to call him back in about thirty minutes. When Butler called back, High asked him if the union membership was still assembled, to which Butler replied they were not. At this point High told Butler that the company “would not need the employees” after midnight, to which Butler replied that the employees were ready to work without a contract or under the old contract. The following day Butler sent a letter to High reiterating “a standing offer of the readiness of the employees to resume work.”

On the evening of July 9, 1971, the employees (including claimants) who had reported to work at 4 P.M. continued to work until relieved from their duties by other personnel at or about 10 P.M., and were instructed to assemble in the auditorium near the main gate. Employees scheduled to report to work at midnight were not permitted to enter into the plant but were told by a Mr. Woolverton, the company superintendent, that “the company wouldn’t need us anymore as of midnight.”

The Kerens, Texas, plant customarily operated twenty-four hours a day continuously, with normally seventeen employees on each eight hour shift. Claimants herein were three of these employees. After midnight July 9, 1971, the plant continued to operate without interruption by the use of supervisory and non-union personnel, until on or about December 1, 1971, when the controversy was terminated and those persons who had not found other employment returned to work.

On July 10, 1971, the union established a picket line, and no union members crossed the picket line until a new contract was successfully negotiated between the union and the company on or about December 1, 1971. When the new contract went into effect in December, 1971, all union members were allowed to return to work. No letters of termination had been sent by the company to any union member during the labor dispute from July until December, 1971; and during this time the union members were locked out of the plant, the union members were covered by the company’s group hospitalization plan.

What we have here is a lockout situation. A “lockout” is the employer’s withholding of work from his employees in order to gain a concession from them, and is the employer’s counter-part of a strike. See 62 A.L.R.3d 448. A lockout is a “labor dispute” within the meaning of Article 5221b-3, Vernon’s Ann.Tex. Statutes. Nelson v. Texas Employment Commission (Galveston CA 1956), 290 S.W.2d 708, writ refused.

Appellees contend that claimants are disqualified under the provisions of Article 5221b-3(d). The pertinent language of Article 5221b-3 reads:

“An individual shall be disqualified for benefits:

“(d) For any benefit period with respect to which the Commission finds that his total or partial unemployment is (i) due to the claimant’s stoppage of work because of a labor dispute at the factory, establishment, or other premises (including a vessel) at which he is or was last employed, . (emphasis supplied).

Since there was a lockout in this ease, and since a lockout is a “labor dispute,” the question before us is: what is meant by the term, “claimant’s stoppage of work”?

Appellant-Claimants contend that in a lockout situation, the unemployment is caused by the employer’s preventing the employees from working until a new contract is agreed upon; and that, therefore, the claimant-employees have not stopped work. Rather, the employer has, by his action in locking out the employee-claimants, prevented the employees from working. The issue to be determined is the cause of the involuntary unemployment. Our Supreme Court has held that when a workman crossed his own picket line during a strike and was refused employment because there was no work available, a new “cause of involuntary employment” had then replaced the original disqualifying cause, that is, the workman’s stoppage of work because of a labor dispute; and thereby held that the original disqualification no longer existed after claimants were refused work because no jobs were available. Kraft v. Texas Employment Commission (Tex.1967), 418 S.W.2d 482, citing with approval this court’s holding in Texas Employment Commission v. Hodson (Waco CA 1961), 346 S.W.2d 665, NRE.

In the case at bar, the “cause of the involuntary unemployment” was not the “claimant’s stoppage of work,” but was on the contrary the company’s preventing the claimants from working by way of locking them out. Here, the employees and the union had manifested every intention of being ready and willing to continue working under the old contract or without a contract, pending negotiation of a new contract.

Appellees argue that since the company never did send termination notices to the employees, and since it paid premiums on the employees’ hospitalization insurance, and since the company permitted the union members to return to work on or about December 1, 1971, when the new contract went into effect, that the stoppage of work was the “claimants’ stoppage of work.” We do not agree. The fact remains that claimants were locked out of their jobs by the company from July 10, 1971, to on or about December 1, 1971, without pay, and during this time claimants were ready, willing, and able to have continued working but for the lockout by the company. We are unable to see how claimants’ involuntary unemployment under these facts could be construed to be due to the “claimant’s stoppage of work.” Instead, it was the company’s stoppage of work.

Accordingly, we hold that the claimants’ involuntary unemployment is not due to the claimants’ stoppage of work, and therefore that claimants are not disqualified to receive the unemployment compensation benefits from July 10, 1971, to December 1, 1971. It has been stipulated by and between all parties hereto that the benefits in dispute for each claimant amounts to $810.00, to which amount each claimant would have been entitled and would have received but for the disqualification asserted by Appellees.

The Unemployment Compensation Act is remedial in its nature and should be construed liberally to give effect to its beneficent purposes. Meggs v. Texas Unemployment Compensation (Fort Worth CA 1950), 234 S.W.2d 453, writ refused.

We hereby reverse the trial court and render judgment in favor of each claimant, to-wit, David S. Brown, Roy L. Alexander, and John D. Wilson, in the amount of $810.00.

REVERSED AND RENDERED.


text:
    TEXAS EMPLOYMENT COMMISSION, Appellant, v. E-SYSTEMS, INC., Appellee.
    No. 5563.
    Court of Civil Appeals of Texas, Waco.
    Aug. 19, 1976.
    Rehearing Denied Sept. 9, 1976.

      John L. Hill, David M. Kendall, J. H. Broadhurst and Michael E. Stork, Austin, for appellant.
    Smith, Smith, Dunlap & Canterbury, Robert W. Smith and Bowen L. Florsheim, Dallas, for appellee.
    Bader, Wilson, Menaker, Cox & Branson, Dallas, for amicus curiae.
   OPINION

JAMES, Justice.

This is a case involving entitlement to unemployment compensation benefits. The Appellant Texas Employment Commission’s order held that the claimants were entitled to the benefits, from which Appellee E-Systems, Inc. appealed to the District Court for judicial review. The trial court after hearing entered judgment reversing the Commission’s order and thereby denied claimants the benefits in question, from which judgment the Commission appeals. We reverse the trial court’s judgment and hold that the claimants are entitled to the benefits in question.

On February 4, 1972, Local 967, United Automobile Workers (hereinafter referred to as “the union”) began an economic strike at the Greenville, Texas, plant of Appellee E-Systems, Inc., (hereinafter called “the company”) such strike lasting until August 4, 1972.

The five claimants whose entitlement to benefits were adjudicated (denied) by the trial court’s judgment were R. 0. Gilleland, Frances J. Newhouse, E. M. Collins, P. H. Brummett, and C. H. Henson, Jr. Each of the claimants had been employed by the company at times prior to February 4, 1972 (the beginning date of the strike); however, each claimant had been laid off at a time prior to the beginning date of the strike because of the economic circumstances of the company. Each of the claimants was on layoff status at the time the strike was called by the union. All claimants were members of the union, although each of them quit paying dues to the union after the time each was laid off. Claimants were receiving no form of remuneration from the company after their respective dates of layoff.

During the course of the strike, each of the above-named claimants were mailed recall notices by the company; however, each claimant refused to report for work for the stated reason that they refused to cross the picket line. Each claimant testified that he would have returned to work but for the strike. Claimants did not at any time finance or participate in the strike or join the picket lines. At the time of recall of each claimant, said claimant was legally entitled to and was receiving unemployment compensation. After claimants’ refusal to report for work, the company notified the Commission of the pertinent facts and requested that the Commission disqualify the claimants from receipt of unemployment benefits. The Commission held hearings on the matter, after which they ordered that claimants were not disqualified from receiving unemployment benefits. The company secured judicial review of the Commission’s order under the provisions of Article 5221b-4(i) by filing this suit against the Commission and the claimants in a District Court of Dallas County, Texas. The trial court after hearing, entered judgment that claimants were each disqualified from receiving unemployment compensation benefits after their respective dates of recall until August 4, 1972, the date of the end of the strike. From this judgment the Commission appeals to this court on three points of error. We sustain the Appellant-Commission’s points and contentions and thereby reverse the trial court’s judgment and hold that claimants are entitled to the unemployment compensation benefits in dispute.

The determination of this case turns upon the construction to be put upon the term “new work” in Article 5221b-3, Vernon’s Annotated Civil Statutes.

The pertinent language of Article 5221b-3 as it applies to the case at bar reads as follows:

“An individual shall be disqualified for benefits: * * *

“(c) If the Commission finds that during his current benefit year he has failed, without good cause, * * * to accept suitable work when offered him, * * *.

“(2) Notwithstanding any other provisions of this Act, no work shall be deemed suitable and benefits shall not be denied under this Act to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (a) If the position offered is vacant due directly to a strike * * (emphasis supplied).

The question before us is: When the claimants on layoff status were offered jobs by the company, was this “new work” as the term is used in Article 5221b-3(c)(2)? If it is “new work,” then according to the plain language of the statute, the claimants are not disqualified from receiving the unemployment benefits, because it is undisputed that the jobs offered were vacant due directly to the strike. Appellant-Commission argues that it is “new work,” pointing out that the employer-employee relationship between claimants and the company had been severed prior to the time the strike was called; that claimants’ layoff was for an indefinite period; that employees were under no duty to ever work again for the company, and the company was under no duty to ever hire claimants again.

On the other hand, Appellee (the company) contends that it is not “new work” because the claimants were members of the union at all times material to the controversy; that claimants had seniority rights by virtue of the union’s collective bargaining contract with the company; that the union in striking was working for the benefit of all its members (including claimants) in the way of higher wages, better working conditions, and other such matters, to the extent that claimants had an “attachment” to the jobs to which they were recalled, which had the legal effect of making the jobs to which they were recalled, “claimants’ work” as opposed to “new work.”

We have been presented no Texas case dealing with this problem, and we have found none. Out-of-state authorities are not harmonious. Appellant’s position, to wit, that the work is “new work,” is supported by Davis v. Hix (Supreme Court of Appeals of West Virginia 1954) 140 W.Va. 398, 84 S.E.2d 404; whereas Appellee’s contentions are supported by Merryman v. Administrator, Unemployment Compensation Act (Superior Court of Connecticut, Hartford County 1962) 23 Conn.Sup. 233, 181 A.2d 260.

We agree with Appellant that the jobs offered constituted “new work,” and so hold for the reasons hereinabove stated. The employer-employee relationship was severed at the time each claimant was laid off, and this was the situation at the time the jobs were offered. The facts that claimants were members of the union, and that they may have had seniority rights insofar as recall was concerned, are in our opinion too remote to cause us to hold that the jobs offered on recall were “claimants’ jobs.” This being so, we hold that claimants are not disqualified from receiving unemployment compensation because of their refusal to accept the jobs offered.

Appellee further contends (and the trial court held) that claimants were additionally disqualified under the provisions of Article 5221b-3(d). We do not agree. In our opinion, Subsection (d) is not applicable to the case at bar. Art. 5221b-3(c)(2) controls over Subsection (d) because Subsection (c)(2) is prefaced with the language: “Notwithstanding any other provisions of this Act * * *.”

The Unemployment Compensation Act is remedial in its nature and should be construed liberally to give effect to its beneficent purposes. Meggs v. Texas Unemployment Compensation Commission (Fort Worth CA 1950) 234 S.W.2d 453, writ refused.

For the reasons herein stated, we reverse the trial court and render judgment that claimants are entitled to the Unemployment Compensation Benefits in question.

REVERSED AND RENDERED.


author: RALEIGH BROWN, Associate Justice.

text:
    McCANE-SONDOCK PROTECTION SYSTEMS, INC., Appellant, v. James Roy EMMITTEE d/b/a Bedford Package Store, Appellee.
    No. 4897.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 19, 1976.

      William C. Book, Tekell, Book & Matthews, Houston, for appellant.
    Rokki Ford Roberts, Dunn & Roberts, Bellaire, for appellee.
   RALEIGH BROWN, Associate Justice.

James Roy Emmittee d/b/a Bedford Package Store sued McCane-Sondock Protection Systems, Inc. for negligently installing a burglar alarm system at his business. After a jury trial, judgment was entered awarding Emmittee $6,839 damages. McCane-Sondock appeals. We affirm.

Appellant argues in five points of error there was no evidence to support the finding that it proximately caused the loss by failing to connect the wires leading from the hold-up button to the burglar alarm control panel and that such finding was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Further, it contends there was no evidence or, in the alternative, insufficient evidence to support the finding that it proximately caused the damages in failing to test the system prior to leaving the premises of the store, and that such finding was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Finally, appellant urges the trial court erred in entering judgment for $10,500 remitted to $6,839 because as a matter of law, the maximum amount Emmittee could recover was $25 based on the liquidated damage clause in the contract.

Appellant argues its action could not be a proximate cause of the loss suffered by Emmittee because it was the action of some third party which caused the loss.

The court in Teer v. J. Weingarten, Inc., 426 S.W.2d 610 (Tex.Civ.App., Houston (14th Dist.) 1968, writ ref. n. r. e.) said:

. . the Texas Courts are firmly committed to the proposition that the issue of foreseeability is related to the issue of proximate cause. It is also undoubtedly true, as a matter of substantive Texas law, that an intervening cause reasonably foreseeable by the defendant, is not such a new and independent cause as to break the chain of causation between the defendant’s negligence and the injury complained of to the extent of relieving the defendant of liability for such injury. City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326; . . .”

It is established appellant failed to connect the wires leading from the hold-up buttons to the burglar alarm control panel and failed to test the system after installation of the alarm buttons.

In the instant case, Mrs. Emmit-tee and the store manager pressed alarm buttons to activate the system when a robber came into the store declaring “it was a hold-up.” There was testimony that if the alarm had functioned the police would have been notified within 30 to 45 seconds. The police station was located only a couple of miles from the liquor store. The robber remained in the store five to ten minutes after the alarm buttons were pressed. We hold these facts constitute some evidence that Emmittee’s loss was the proximate result of McCane-Sondock’s failure to properly install the alarm equipment. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974); Butler v. Hanson, 455 S.W.2d 942 (Tex.1970). Also, we have carefully considered the entire record and find the jury’s answers to the challenged special issues are not against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust, nor are they factually insufficient. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951).

The contract contains the following provision:

“It is agreed that the party of the first part is not an insurer of the premises of the party of the second part, that all charges and fees herein provided for, are based solely on the cost of installation and rental of the equipment, and that in case of loss to the second party resulting by reason of failure of the performance of the alarm system to operate, the liability of the party of the first part shall be limited to the sum of twenty-five dollars ($25.00), which sum is hereby agreed upon as liquidated damages, and this liability shall be exclusive.”

Appellant urges this provision limits Emmittee’s recovery to $25. It contends the following language in McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62 (Tex.Civ.App., Houston (14th Dist.) 1975, no writ) is applicable:

“A finding that the system did operate on the occasion in question was essential to the appellee’s case. Without such a finding the contract provision limiting the appellant’s liability to $25 would have been applicable . . .”

McCane-Sondock in the contract “agreed to install on the premises of” Emmittee “a burglar alarm system.” The jury found McCane-Sondock failed to connect up the hold-up buttons. There can be no “failure of the performance of the alarm system to operate” until the system has been properly installed and functioning.

In McCane Sondock Detective Agency, supra, there was no issue as to whether the equipment was properly installed. The issue there was the duty of McCane Sondock under the contract on receipt of an alarm. In the instant case, McCane-Sondock had the duty of properly installing a workable alarm system and failed, to do so. The liquidated damage provision is not applicable.

We have considered and overrule all points of error. The judgment is affirmed.


text:
    Gloria Dawn OWENS, Appellant, v. Kenneth Harry OWENS, Appellee.
    No. 4892.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 19, 1976.

      G. A. Day, Day & Nabers, Brownwood, for appellant.
    Pat Hall, Marschall, Hall, McLaughlin & Lane, San Angelo, for appellee.
   ON MOTION FOR REHEARING

WALTER, Justice.

On June 10, 1976, we reversed and remanded this case.

Gloria Dawn Owens filed suit against Kenneth Harry Owens in Brown County seeking a divorce and a division of their property. She also sought to be appointed managing conservator of their only child and asked for a temporary restraining order. The court granted a temporary restraining order without notice to the defendant, among other things, prohibiting him from interfering with plaintiff’s possession of the child and selling their property. Following a hearing the court appointed plaintiff temporary managing conservator and defendant temporary possessory conservator of the child and continued the restraining order.

Defendant filed a general denial and a cross action asserting on the 16th day of April 1975, a decree of dissolution of their marriage was rendered in the County of Navajo in the State of Arizona awarding him custody of their child. He asked that this suit be abated on the grounds of res judicata. The court granted defendant’s plea in abatement and dismissed the case. The plaintiff has appealed.

The court erred in sustaining defendant’s plea in abatement and dismissing the case.

In Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967), the court said:

“We observe that a plea of res judicata is not a plea in abatement or a plea to the jurisdiction, but is a plea in bar. 84 Tex.Jur.2d, Judgments § 450. The three pleas have different objectives, and different consequences flow from their sus-tention. As applied to a pending claim for relief or cause of action, a plea to the jurisdiction, if sustained, would require a dismissal; a plea in abatement, if sustained, would require an abatement of the claim or cause of action until some obstacle to its further prosecution was removed, Life Ass’n of America v. Goode, 71 Tex. 90, 8 S.W. 639, at 640; and a plea in bar, if sustained, would require a judgment that the claimant take nothing. Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208, at 214.”

In Filipp v. Ochoa, 340 S.W.2d 847 (Tex.Civ.App.-Waco 1960, no writ), the court said:

“Appellee filed an unverified plea alleging that on a date nearly one month after the suit was filed, plaintiff executed a release discharging defendant from all liability for property damage. Appellant then pleaded that appellee had full notice of the subrogation interest of the insurer before he executed the release. Appel-lee’s allegations of the terms of the release were embodied in an unverified pleading termed a ‘motion to dismiss.’ The court granted the motion and dismissed the action by virtue of the pleaded release.
The court was not authorized to summarily dispose of the action on a plea in bar.”

Defendant’s plea of res judicata is an affirmative defense under Rule 94, T.R.C.P. Such defense is properly presented in a conventional trial on the merits or in a summary judgment proceeding.

Appellee contends in his motion for rehearing we erred in reversing and remanding on a point not properly presented by appellant in her assignments of error in her motion for a new trial. In this non-jury trial, it was not necessary for appellant to file a motion for a new trial as a prerequisite to appeal. She is not limited to the assignments of error listed in her motion for a new trial because such a motion is not required in a non-jury case.

In Park v. ESSA Texas Corporation, 158 Tex. 269, 311 S.W.2d 228 (1958), the court said:

“In a nonjury case, as this case is treated, a motion for new trial is not a prerequisite to appeal. Rule 324. But the filing of a motion is not prohibited, and various rules including Rule 324, infra, recognize that one may be filed.”

In Leonard v. Leonard, 512 S.W.2d 771 (Tex.Civ.App.-Corpus Christi 1974, writ dismissed), the court said:

“A motion for new trial is not required in a non-jury case as a prerequisite to appeal. Boswell v. Handley, 397 S.W.2d 213 (Tex.Sup.1965). Nor will the filing of a motion for new trial in a non-jury case limit an appellant to the assignments made in the motion for new trial. Boswell v. Handley, supra. The appellant’s motion for new trial does not assert either no evidence or a lack of full and satisfactory evidence as being a meritorious grounds of defense. However, since the filing of a motion for new trial in a non-jury case does not limit an appellant’s points of error to the assignments made in the motion for new trial, we hold that the appellant may assert her no evidence and lack of full and satisfactory evidence defenses for the first time in this appeal.”

Appellee also contends we erred in reversing and remanding on a point of error not asserted, briefed or argued in appellant’s brief. We agree. Appellant contends: “The Appellee’s have carefully avoided the well established rule that an Appellate Court can consider error if it is considered to be fundamental error, even without the Court’s attention being called to the error.” We have carefully considered the authorities cited by appellant on fundamental error and hold sustaining ap-pellee’s plea in abatement and dismissing the case does not constitute fundamental error.

In Goode v. Wood, 509 S.W.2d 435 (Tex.Civ.App.-Corpus Christi 1974, writ ref. n. r. e.), the court said:

“Plaintiff’s position in this matter constitutes unassigned error. ‘The right of an appellate court to reverse a trial court judgment on unassigned error is limited to situations in which the error can properly be classified as “fundamental error” ’. Newman v. King, 433 S.W.2d 420 (Tex.Sup.1968). Generally speaking, fundamental error is either error which directly or adversely affects the interest of the public generally, Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947), or error in assuming jurisdiction where none exists, McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). Errors occurring in the trial process and errors which a trial judge may make in deciding issues or making conclusions of law during the course of a trial have been consistently held not to be fundamental. State v. Sunland Supply Co., 404 S.W.2d 316 (Tex.Sup.1966); Kimbrough v. Walling, 371 S.W.2d 691 (Tex.Sup.1963). The complaint made by plaintiff did not affect the interest of the public generally. Neither did it deprive the trial court of jurisdiction, once obtained, to proceed to judgment. Therefore, since fundamental error is not presented and as plaintiff did not attack the trial court’s conclusion by a point of error, his right to complain on the ground evidenced by the argument was waived. City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77 (1955); Dorbandt v. Jones, 492 S.W.2d 601 (Tex.Civ.App.-Austin 1973, writ ref. n. r. e.).”

We are compelled to sustain appellee’s contention appellant does not have a proper point of error on the court’s actions in sustaining the plea in abatement and dismissing the case. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), and Isenhower v. Bell, 365 S.W.2d 355 (Tex.1963). Rule 418, T.R.C.P.

Our opinion and judgment dated June 10, 1976, is withdrawn and this opinion is rendered in lieu thereof.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.