author: EVANS, Justice.

text:
    Sheldon P. GOREN, Appellant, v. Valerie Mann GOREN, Appellee.
    No. 16597.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 18, 1975.
    Rehearing Denied Jan. 8, 1976.

      Ronald D. Cohen, Houston, for appellant.
    William R. Browning, Houston, for appel-lee.
   EVANS, Justice.

A divorce action.

Appellee, Valerie Mann Goren, brought this divorce action against appellant, Dr. Sheldon P. Goren, on the grounds of insup-portability. After trial to the court, a divorce was granted and Mrs. Goren was appointed managing conservator of the parties’ two and one-half year old son. The trial court made a division of the parties’ community estate and ordered Dr. Goren to pay child support payments in the amount of $500.00 per month until the child reached the age of 18 years and all medical expenses incurred on behalf of the child.

In his first two points of error Dr. Goren asserts the trial court abused its discretion in dividing the community estate.

Under the terms of the divorce decree Dr. Goren was awarded tangible community assets valued at approximately $25,000.00, consisting primarily of assets pertaining to his medical practice. Mrs. Goren was awarded personal property valued at $3,500.00 plus $1,000.00 for use in paying her attorney’s fees. In order to equalize this division of personal property, the trial court awarded her a judgment for $15,-000.00 payable in installments of $3,000.00 per year for five years. Her total award, thus, was $19,500.00. The record does not reflect that any of the property awarded to Dr. Goren was subject to liens. However, the community estate was indebted in the approximate sum of $33,000.00. Of this amount approximately $6,000.00 had been borrowed by Dr. Goren to pay income taxes and the balance, for the most part, represented debts incurred by Dr. Goren in establishing his medical practice. Under the divorce decree, Dr. Goren was required to assume all community debts incurred prior to the filing of the divorce action.

The parties had been married in July 1968. At that time Dr. Goren had just started his sophomore year in medical school. Mrs. Goren was then working full time, making $50.00 per day or approximately $1,000.00 per month. She continued full-time employment up to the time she became pregnant in May 1972, and thereafter continued to work on a part-time basis. From the time of their marriage until the time of her pregnancy, Mrs. Goren’s income constituted the principal support for the family. After the birth of their child in February 1973, Mrs. Goren renewed her work on a part-time basis and from that time to the time of trial she was working two days per week as a dental hygienist. In July 1974, the parties separated and this action was instituted.

At the time of their separation the parties had approximately $7,200.00 in a savings account which was divided between them, $6,000.00 to Mrs. Goren and $1,200.00 to Dr. Goren. Dr. Goren then had approximately $3,000.00 in cash in his business account, so that it appears Mrs. Goren received approximately $1,800.00 more than Dr. Goren of the total cash then on hand. Mrs. Goren testified that she had been required to use a portion of this cash for her support and maintenance during the pend-ency of the suit and, similarly, Dr. Goren testified he had been required to use the cash in his possession, including the cash surrender value of a $1,000.00 insurance policy, to pay outstanding community obligations. The evidence does not clearly reflect the amount of cash in the hands of the parties, respectively, as of May 27,1975, the date of the divorce hearing.

It is essentially the argument of Dr. Goren that due to the fact that the divorce was granted on grounds of insupportability, no fault should be attributed to him, and that since the community indebtedness exceeded the aggregate tangible assets of the community, the award to Mrs. Goren of the sum of $15,000.00 payable in $3,000.00 installments over a five year period caused the division of community property to be so disproportionate as to be clearly inequitable and, thus, an abuse of the trial court’s discretion.

Appellant relies upon Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App., 1966, writ dism’d). In that case the divorce was evidently granted upon conduct of the husband resulting from his excessive use of intoxicants. The trial court awarded the husband 26 Appaloosa horses, two horse stalls and pen, a horse trailer and automobile of a total value of $4,500.00. The wife was awarded all remaining property consisting of a house and lot, household furniture and fixtures, a one-half interest in the husband’s sporting goods store, automobile, pick-up truck, life insurance policy and two bank accounts in the total approximate value of $30,500.00. The Court of Civil Appeals reversed and remanded as to the issue of division of property, stating:

“. . . The division of property need not be equal so long as it is not so disproportionate as to be inequitable. Bowling v. Bowling (Tex.Civ.App.) 373 S.W.2d 829. No case has been cited, and we have found none in which, in our opinion, the division of the property was as unequally divided as was done in this case. Admittedly, appellee was a fine mother to the parties’ three sons, the ten year old boy whose custody was awarded to her and the two other boys who were over the age of eighteen at the time of trial. She had not worked out of the home for many years, and is untrained to perform skilled work, but we think appellant’s rights must be considered. The sporting goods store, which had been operated by appellant and his partner for several years constituted the major source of the family income. The court’s judgment would deprive him of any interest in the most valuable income producing property owned by the parties

In the case at bar, as in the case relied upon by appellant, the trial court was entitled to consider not only the tangible assets and liabilities of the community estate but other factors such as the relative conditions, circumstances, capabilities and experience of the parties. In re Marriage of Jackson, 506 S.W.2d 261, 266 (Tex.Civ. App. — Amarillo, 1974, writ dism’d). The court was not, of course, required to make an equal division of the community estate. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1005 (1950). In making its determination the trial court was justified in considering the parties’ respective financial obligations and future earning capacity, and their probable respective needs for support. Roberson v. Roberson, 420 S.W.2d 495 (Tex.Civ.App. — Houston [14th], 1967, writ ref’d, n. r. e.); Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App. — Ft. Worth, 1963, writ dism’d); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. — Houston [1st], 1974, no writ). An important factor, if not the most important factor, is the parties’ probable respective needs for future support. Pickitt v. Pickitt, 401 S.W.2d 846 (Tex.Civ.App. — Tyler, 1966, no writ).

The record shows that while Dr. Goren had been practicing for a relatively short period of time, his gross annual earnings from his medical practice for the year 1974 were in the approximate amount of $69,000.00. He estimated that his overhead costs were approximately one-half of his gross earnings and that his net income before taxes approximated $32,000.00 per year. Mrs. Goren testified that during the year 1974 she had earned $6,000.00 from her part-time work as a dental hygienist and that she was required to pay approximately $18.00 per day for child care for each of the days that she worked. The trial court was, of course, entitled to consider the fact that Dr. Goren’s earning capability would likely increase as his practice grew and that Mrs. Goren might be unable to obtain a substantial increase in the amount of her earnings.

The trial court could also take cognizance of the fact that the assets of Dr. Goren’s medical practice were of no particular benefit to Mrs. Goren and were of much greater value in the hands of Dr. Goren. Any disposition of such assets, whether by partition or sale, would have adversely affected Dr. Goren’s practice and thus his earning capability. See Maddox v. Maddox, 489 S.W.2d 391 (Tex.Civ.App. — Houston [1st], 1973, no writ); Dorfman v. Dorfman, 457 S.W.2d 417 (Tex.Civ.App. — Texarkana, 1970, no writ). The community indebtedness which Dr. Goren was required to assume had for the most part been incurred by him in furtherance of his medical practice. The decree did not have the effect of releasing Mrs. Goren’s liability on the indebtedness insofar as the creditors of the community were concerned. The trial court considered it just and fair that Dr. Goren assume the primary obligation for payment of this indebtedness and under the facts and circumstances in the record we cannot say that it abused its discretion in making this order. Cusack v. Cusack, 491 S.W.2d 714, 721 (Tex.Civ.App. — Corpus Christi, 1973, writ dism’d); Mangum v. Mangum, 184 S.W.2d 338- (Tex.Civ.App. — San Antonio, 1944, no writ); Hughes v. Hughes, 259 S.W. 180 (Tex.Civ.App. — Amarillo, 1924, writ dism’d). Dr. Goren does not complain by specific point on this appeal that the trial court abused its discretion in requiring him to pay the community indebtedness. Primarily he attacks the trial court’s order requiring him to pay $15,000.00 to Mrs. Goren in installments of $3,000.00 per year over the five year period. The indebtedness is not property nor a charge on property, and if the trial court erred in requiring the husband to assume the primary liability for such indebtedness, the point is not before us. We hold that the record does not establish that the trial court abused its discretion in requiring Dr. Goren to pay the specified sum to Mrs. Goren over the period of time stated in order to achieve an equitable balance in the division of their community estate. Weaks v. Weaks, 471 S.W.2d 454 (Tex.Civ.App. — Beaumont, 1971, writ dism’d); In re Marriage of Jackson, supra.

In his third, fourth and fifth points of error Dr. Goren asserts the trial court awarded an excessive amount of child support to Mrs. Goren, that there is no evidence in support of such award and that it was error to require him to bear most of the financial obligation of supporting said child. Under these points he urges that his wife had lived satisfactorily for ten months pending trial on $350.00 per month child support and that she failed to produce testimony as to the specific needs for the child’s support. Additionally, he points to testimony that his wife had, subsequent to the separation, moved from a 2-bedroom apartment into a 3-bedroom apartment. After reviewing the evidence pertaining to these points, we have concluded that the court’s award is not excessive, and that there is some evidence which supports the award. Mrs. Goren testified that the sum of $1,200.00 per month was required for the combined support of herself and her child; that her apartment cost was $280.00 per month and that her son was going to be enrolled the following month in a nursery school at a cost of $55.00 per month. In view of the evidence concerning the parties’ potential annual earnings, the trial court did not exceed its discretionary authority in awarding child support in the amount of $500.00 per month.

In his sixth and seventh points Dr. Goren contends the trial court abused its discretion in permitting Mrs. Goren to reopen her case after the close of all the evidence to offer evidence in support of her claim for attorney’s fees and that the award of attorney’s fees is not supported by sufficient evidence. We find the evidence does support the trial court’s award and that the trial court did not err in granting permission for the case to be re-opened to present such evidence. Russell v. Russell, 443 S.W.2d 569, 571 (Tex.Civ.App. — El Paso, 1969, no writ).

In his last point of error Dr. Goren contends the trial court erred in failing to make additional findings of fact as requested by him. The trial court is not required to make specific findings on every controverted issue but only upon ultimate and controlling issues. Graham Construction Co. v. Robert H. Pyle, Inc., 422 S.W.2d 485, 488 (Tex.Civ.App. — Corpus Christi, 1967, writ ref’d n. r. e.); Wade v. Taylor, 228 S.W.2d 922, 925 (Tex.Civ.App. — Amarillo, 1949, no writ). We have reviewed the requested additional findings and hold that the trial court did not err in refusing to make findings thereon.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Alice McDANIEL, Appellant, v. Reberta Lee ADAMS, Independent Executrix, Estate of Betty Mae Cooper, Deceased, Appellee.
    No. 16599.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 18, 1975.
    Rehearing Denied Jan. 15, 1976.

      Jonathan L. LeBleu, Houston, for appellant.
    Wm. M. Holland, Jr., Houston, for appel-lee; Holland, Gemoets & Tindall, Houston, of counsel.
   PEDEN, Justice.

The appellant, Mrs. Alice McDaniel brought this suit to establish that Betty Cooper, deceased, had given her six non-negotiable time savings certificates and the funds in a checking account, pleading in the alternative the theories of gift inter-vivos and gift causa mortis.

Appellee claims the items in dispute for the estate of Betty Mae Cooper. A jury returned a verdict, on special issues, in favor of Mrs. McDaniel, but the trial court granted the appellee’s motion for judgment notwithstanding the verdict. The jury’s findings were:

1) On or about September 17,1971, Betty Mae Cooper intended to make a gift of the subject time savings certificates to Alice McDaniel.

2) On or about that date Cooper delivered the certificates to McDaniel.

3) On or about September 28, 1971, Cooper intended to make a gift of the subject bank account to Alice McDaniel.

4) On or about that date Cooper delivered the bank account to McDaniel.

The appellant’s points of error are that the trial court erred in granting a judgment notwithstanding the verdict because 1) the evidence was clear and undisputed as to the intention of the testatrix to make an inter-vivos gift of the items in question, 2) the testatrix had executed a power of attorney, 5)the signature card for the checking account shows the intention of the testatrix as it provides a right of survivorship in the co-owner, the appellant, 6) the language used in the codicil to the will constitutes an informal assignment of the items sufficient to comply with the requirement of delivery, and 7) equity, under the facts and circumstances, should look to the substance of the matter and not the form as regards delivery. The appellant’s third and fourth points of error complain about the failure of the trial court to submit two special issues dealing with a gift causa mortis, but these points, as appellant concedes, were not preserved in compliance with Rule 279, Texas Rules of Civil Procedure.

The appellee concedes that the appellant established the donor’s intent to give the certificates and the checking account to the appellant but contends there was no evidence to support the jury’s findings that Betty Mae Cooper delivered the savings certificates and the bank account to Mrs. McDaniel.

Under her fifth, sixth and seventh points of error the appellant argues that the evidence raised fact issues of delivery of the funds in question. We reverse and render.

A court may render judgment notwithstanding the verdict if a directed verdict would have been proper, Rule 301, Texas Rules of Civil Procedure. To sustain the action of the trial court it must be determined that there was no evidence on which the jury could have made the findings in question. All testimony must be considered in a light most favorable to the party against whom the motion was granted, and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

We review the pertinent evidence. Prior to her death on November 3, 1971, Betty Mae Cooper acquired six non-negotiable time savings certificates in the face amount of $11,000 and a checking account with the First City National Bank of Houston. Mrs. McDaniel testified that on or about September 17, 1971, Betty Mae Cooper gave her the savings certificates, and Mrs. Ninfa Lorenzo testified that when she visited Betty Mae Cooper in St. Joseph’s Hospital in September of 1971 Mrs. Cooper said she had given her “C.D.s” to Mrs. McDaniel. In her will executed on August 17, 1971, Betty Cooper devised her entire estate to Reberta Lee Adams and appointed her executrix of the estate, but in a codicil, executed by the decedent on October 1, 1971, she made specific bequests to others and stated: “I have given the money in my checking account to Alice McDaniel ... I have given all of my Savings Certificates to Alice McDaniel . . Both of these instruments had previously been admitted to probate.

Mr. Lawrence Petrue, an official of the First City National Bank, identified a signature card on a checking account bearing only the name of Betty Cooper and a later card bearing the signatures of both Betty Cooper and Alice T. McDaniel. The latter card provided that the bank shall pay the funds in the account “to us, or either of us, or to the survivor of us . . .” It appears to have been dated by the bank on October 7, 1971. Margie Tucker, an assistant vice president in charge of the time deposits, testified that the bank’s savings certificates are non-negotiable and cannot be transferred. A new certificate must be issued in the new owner’s name, but delivery of the old certificates with a letter from the owner directing that they be reissued in the donee’s name would suffice.

Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962), was a divorce case. The wife testified that when her husband had bought a Cadillac he had said, “I am giving you the car. I want you to have this Cadillac. I am keeping it in my name, because I am making payments on it . . . ” On several occasions he told her that the automobile was hers. The court stated:

“The Court of Civil Appeals concluded that the evidence of respondent’s acts and declarations does not support a finding of gift because there is nothing to show delivery of possession and an absolute parting with interest in the subject matter. While the authorities are agreed that actual or constructive delivery to the intended donee is ordinarily essential to an effective gift inter vivos, they disagree as to whether the trier of fact may find a delivery when there is no proof of it other than subsequent declarations of the donor. See Annotation 124 A.L.R. 1391. Texas is one of the jurisdictions holding that statements by the donor indicating that he had given the chattel to the donee are sufficient to raise an issue of fact as to whether there was a delivery. Lord v. New York Life Ins. Co., 95 Tex. 216, 66 S.W. 290, 56 L.R.A. 596, 93 Am.St.Rep. 827. See also Brown v. Fore, Tex.Com.App., 12 S.W.2d 114, 63 A.L.R. 435.”

We conclude that this holding of the Texas Supreme Court is dispositive of the issues in our case.

Mrs. Cooper’s codicil stated that she had asked Mrs. McDaniel to give specified amounts from the proceeds of the time certificates to other named persons. The question of whether Mrs. McDaniel is entitled to the entire proceeds of the certificates as against the other named persons is not before us.

Reversed and rendered.


author: HALL, Justice.

text:
    Terry W. PRATT et al., Appellants, v. DALLAS COUNTY et al., Appellees.
    No. 5532.
    Court of Civil Appeals of Texas, Waco.
    Dec. 30, 1975.
    Rehearing Denied Jan. 29, 1976.
    Herndon, Girand & Dooley, Dallas, for appellants.
    Henry Wade, Dist. Atty. and John B. Tolle, Asst. Dist. Atty., Dallas, for appel-lees.
   HALL, Justice.

The facts were stipulated and are without dispute. By written contract, the appellants leased office space to the appellees for a term of one year, beginning November 1,1973, at a rental of $500 per month in advance. Critical to this lawsuit, paragraphs 19 and 25 of the lease agreement provide as follows:

19. HOLDING OVER. Should tenant, or any of its successors in interest, hold over the demised premises, or any part thereof, after the expiration of the term of this Lease, unless otherwise agreed in writing, such holding over shall constitute and be construed as tenancy from month to month only, at a monthly rental equal to the rent paid for the last month of the term of this Lease.
25. RENEWAL OPTION. Provided that at the end of the primary term of this Lease Tenant not be in default of any term, condition or covenant contained in this Lease, Tenant (but not any assignee or subtenant) shall have the right and option to renew this Lease, by written notice delivered to Landlord with copy to Principal Realtor no later than 180 days prior to the expiration date of the primary term, for the additional term of one (1) year with an additional one year option (making a total of three years) under the same terms, conditions, and covenants contained herein, except: The rent shall be increased by 5% on each additional renewal period.
A. Tenant shall have no further renewal options unless expressly granted by Landlord in writing.

The appellees remained in possession of the leased premises from November 1,1973, through October 31, 1974, fully discharging its obligations under the lease. No written notice was given to the appellants that the appellees intended to exercise the option to renew the lease as provided by the terms of paragraph 25 of the agreement. However, the appellees continued in possession of the premises after October 31, 1974. Upon notice from the appellants sometime during the second week in November, 1974, that there was a 5% increase in the monthly rent beginning with the November payment, the appellees increased their rental payment from $500 to $525 per month, paying this amount for the months of November and December, 1974. On January 6, 1975, the appellees abandoned the premises, and refused to pay further rent demanded by the appellants. This suit followed. Following a trial without a jury upon stipulated facts, judgment was rendered that the appellants take nothing. We affirm.

First, the appellants assert that as a matter of law the appellees exercised the option to renew the lease by remaining in possession beyond the primary term and paying the increased rental provided in the renewal clause, arguing that the written notice provision is for the benefit of the landlord and therefore waivable by the appellants.

It is the general rule that the lessee’s continued occupancy and monthly payment of rent in accordance with the terms of a lease contract after the expiration of the primary term constitutes an election to exercise his option to renew and is sufficient notice to the lessor, where the contract does not call for formal notice to renew. 36 Tex.Jur.2d 93, Landlord and Tenant, § 246. Moreover, where formal notice is required, it is for the sole benefit of the lessor and may be waived by him. Pruett Jewelers, Inc. v. J. Weingarten, Inc., 426 S.W.2d 902, 905 (Tex.Civ.App. — Tyler, 1968, writ ref., n. r. e.). Necessarily, however, the implication or presumption arising in the holdover doctrine relied on by the appellants arises only in the absence of an express or implied agreement to the contrary. “Such an agreement takes the place of the presumption as to holding over that the law otherwise raises. Consequently, ‘the parties to a lease may therein expressly provide for holding over, and what the nature of the tenancy shall be after the expiration of the term, and such an agreement will govern, and a periodic tenancy will not arise.’ ” Corpier v. Lawson, 356 S.W.2d 361, 362 (Tex.Civ.App. — Waco, 1962, no writ hist.); Haltom City State Bank v. King Music Company, 474 S.W.2d 9, 11 (Tex.Civ.App. — Fort Worth, 1971, writ ref., n. r. e.). The payment by the appellees of the increased rental rate called for in the renewal clause, at the appellants’ instance, does not prevent the application of this rule as a matter of law.

The appellants’ remaining complaint questioning the factual sufficiency of the evidence is also without merit and is overruled.

The judgment is affirmed.


author: ROBINSON, Justice.

text:
    The FIRST NATIONAL BANK OF AMARILLO, Trustee, Brad Love Sneed Trusts, Appellant, v. AMARILLO NATIONAL BANK, Trustee of the Betsy Weymouth Bradshaw Trust, et al., Appellees.
    No. 8561.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 31, 1975.

      Gibson, Ochsner, Adkins, Harlan & Han-kins, W. P. Sturdivant, Amarillo, for appellant.
    Culton, Morgan, Britain & White, W. F. Countiss, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Frank John Mozola, Amarillo, for appellees.
   ROBINSON, Justice.

Plaintiff seeks to establish an implied grant of an easement appurtenant in favor of property held by plaintiff, across property held by defendant, alleging that at one time partial title to all of the property was in one person, and that at that time it was necessary to cross what is presently appel-lees’ tract to reach what is now appellant’s tract. The trial court rendered summary judgment for defendants. Plaintiff appeals. Affirmed.

An easement appurtenant is an easement interest which attaches to the land and passes with it. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962). An easement by implication is established when the owner of a single tract of land conveys any part and, although the deed is silent, the circumstances at the time of the conveyance are such as to cause an easement to arise between the two parcels of land thus created. Depending on whether the dominant estate is retained or conveyed, an implied easement may be reserved or granted. The law will read into the instrument of conveyance that which the circumstances show both the grantor and grantee must have intended had they given the obvious facts of the transaction proper consideration. Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, 167 (1952). In order to establish an implied grant of an easement appurtenant, the plaintiff must prove, along with other elements, that there was unity of title of the alleged dominant and servient estates. Westbrook v. Wright, 477 S.W.2d 663 (Tex.Civ.App., Houston [14th Dist.] 1972, no writ).

In the case before us, defendants contend that the undisputed summary judgment evidence shows as a matter of law that there was not the requisite unity of title in the alleged dominant and servient estates. Plaintiff contends that there was such unity of title in Fanny Fern Weymouth.

The husband of Fanny Fern Weymouth owned a two-thirds undivided interest in the alleged dominant estate. She joined her husband in a conveyance of that property on May 30, 1936. At most, Fanny Fern Weymouth owned a community property interest in a two-thirds undivided interest in the property conveyed. At the time of the conveyance of the alleged dominant estate, Mrs. Weymouth owned a life interest in the surface of a large tract of land, including the alleged servient estate. This life interest in the alleged dominant estate was her separate property.

A life tenant and a remainderman take title from a common grantor, and the remainderman takes his title independent of the interest of the life tenant. The two titles are separate and distinct, neither being referable to the other. Nussbaum v. Nussbaum, 292 S.W. 189 (Tex.Com.App.1927, jdgmt. adopted). Even if he expressly seeks to do so, a life tenant cannot alienate any greater interest in the property than an interest that ceases with his life. Brooks v. Evetts, 33 Tex. 732 (1871); Zambrano v. Olivas, 490 S.W.2d 218 (Tex.Civ.App., El Paso 1973, writ ref’d n. r. e.); Gibbs v. Barkley, 242 S.W. 462 (Tex.Com.App.1922, jdgmt. adopted); Henson v. Peterson, 218 S.W. 126 (Tex.Civ.App., Texarkana 1919, writ ref’d).

Fanny Fern Weymouth could not grant an express easement across the alleged servient estate that would exceed her life estate in the property. See Leuthold v. John A. Stees Co., 141 Minn. 213, 169 N.W. 709 (1918) and Newhoff v. Mayo, 48 N.J.Eq. 619, 23 A. 265 (1891). Thus, she could not accomplish that result by implication.

Mrs. Weymouth is now deceased. The question of whether her ownership interest in the two tracts of land was sufficient to create an easement appurtenant by implication for her life is not before us. We hold that a life estate in an alleged servient estate is an insufficient interest to establish the unity of title necessary to support the implication of the grant of an easement appurtenant beyond the duration of the life estate.

The facts are established as a matter of law against plaintiff on the question of unity of title, an essential element of its cause of action. The trial court, therefore, properly granted defendants’ motion for summary judgment. “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972). Rule 166-A, Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.


author: ELLIS, Chief Justice.

text:
    In the Interest of Victor BARRERA and Valentin Barrera, Jr., minor children.
    No. 8611.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 31, 1975.

      Godinez & Abeyta (F. B. Godinez, Jr.), Lubbock, for appellants.
    Law Offices of Tom Upchurch, Jr. (Stephen F. Scott, Jr.), Amarillo, for appellees.
   ELLIS, Chief Justice.

Juanita Barrera Gonzales, respondent-appellant, brings this appeal from a decree of the district court appointing Fernando Hernandez and wife, Narcisa Hernandez, petitioners-appellees, as managing conservators of two minor children, Victor Barrera, born June 27, 1966, and Valentin Barrera, Jr., born August 16, 1968. The appellant is the natural mother of the children, and the appellees are the parents of the appellant. Affirmed.

In 1970, appellant’s husband, the natural father of Victor and Valentin, Jr., was killed as a result of an on the job accident. Shortly after his death, appellant allowed the two children whose custody is in issue to live with appellant’s parents, the maternal grandparents of the children.

On July 12, 1974, Juanita Barrera Gonzales made application for a show cause order why Fernando and Narcisa Hernandez should not be ordered to deliver the children to her. On July 19,1974, Fernando and Narcisa Hernandez filed a petition in the district court seeking a change of custody and their appointment as managing conservators of the children. Respondent answered denying the allegations of petitioners and praying that the children be delivered to respondent. After a hearing, petitioners were appointed temporary managing conservators and respondent temporary possessory conservator. On February 11, 1975, the cause was heard on its merits by the court without a jury. No formal findings of fact or conclusions of law were requested or made. In its decree the trial court found: “that the best interests of the children will be served by appointing the maternal grandparents, ... as managing conservators, to have all the rights, duties and responsibilities of parents as set out in the Texas Family Code, Sections 12.04 and 14.02, subject to the rights and duties of the temporary possessory conservator.” The decree entered by the court is in accordance with this finding. From this decree the appellant has brought her appeal on three points of error.

In her first point appellant contends that the trial court erred in disregarding the rule under Tex.Prob.Code Ann. § 109(a) that the surviving parent has the right to managing conservatorship of the children. Section 109 of the Texas Probate Code is entitled “Persons Qualified to Serve as Guardians.” The relevant portion of Section 109(a) relied upon by appellant in support of her position provides: “If one parent is dead, the survivor is the natural guardian of the person of the minor children, and is entitled to be appointed guardian of their estates.” Even though, after the death of Valentin Barrera, the appellant was issued letters of guardianship of the children by the county court, the guardianship is no impediment to the exercise by the district court of its equity powers in a suit involving the custody of minors. Thompson v. Doyal, 209 S.W.2d 425 (Tex.Civ.App., Austin 1948, writ ref’d n. r. e.). Although there is a presumption that a surviving parent is the most suitable person to have custody of minor children, the controlling consideration is the best interest of the children. 44 Tex.Jur.2d Parent and Child § 13, at 38, and cases cited therein. Since the welfare of children is the court’s paramount concern and guiding consideration in any contest over the right to custody, this concern and consideration will prevail over any asserted claim of legal right in a party to the controversy. Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). Appellant’s point of error number one is overruled.

In her second and third points of error appellant complains of the admission by the trial court of evidence concerning her past conduct to show her present unfitness and of the insufficiency of the evidence to satisfy the burden upon appellees to prove that appellant was unfit to have custody of the children. It is not always necessary in child custody cases that the evidence show the natural parent is unfit, e. g., where the natural parent has voluntarily surrendered possession of the child to another which possession continued for a substantial period of time. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Guillott v. Gentle, 467 S.W.2d 521 (Tex.Civ.App., Eastland 1971, writ ref’d n. r. e.). As stated in Herrera, “The legal custody of a minor is in the parents or the surviving parent, unless there has been a court adjudication awarding the legal custody to a third party.” 409 S.W.2d, at 396. The court further stated that under circumstances of voluntary surrender of possession continued for a substantial period of time, a court may terminate the custody rights of the parent when it is in the best interest of the child to do so.

In determining the best interests of the child the court must consider the circumstances of the parents. Tex. Family Code Ann. § 14.07(b). It is recognized that there is a presumption that the interests of a child are best served when custody is awarded to the natural parents. However, this presumption is rebuttable. Legate v. Legate, supra. As stated in Legate:

“Where, however, a parent, by writing or otherwise, has voluntarily transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily brought about, and the court will not grant the relief unless, upon a hearing of all the facts, it is of the opinion that the best interest of the child would be promoted thereby. 28 S.W. at 282.

Appellees had the burden of proving that the best interests of the children would be served by depriving appellant, their natural mother, of custody. Mumma v. Aguirre, supra. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955). However, if there is evidence to support the finding of the trial court as to the best interest of the children its decree must be affirmed. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962).

The record reveals that the children have been allowed to live with appellees since shortly after the death of their father in 1970. At the time appellant filed her application for the show cause order, the children had lived with appellees for nearly 4 years since they were less than 4 and 2 years of age, respectively. Testimony revealed that the two children of appellant are happy in appellees’ home and that they do not wish to leave appellees’ home to live with the appellant. The children receive Social Security benefits as a result of their father’s death. It appears that appellees are financially able to care for the children. Further, there was evidence presented relating to the circumstances of the appellant and her present husband, including evidence, both favorable and unfavorable, concerning their conduct and fitness to have custody of the children. The matter of determination of custody is addressed to the sound discretion of the trial court, and the judgment will not be disturbed on appeal unless the award of custody is so contrary to the preponderance of the evidence as to show abuse of discretion. See 44 Tex. Jur.2d Parent and Child § 38, at 63, and cases cited therein.

The appellant complains in her brief of the trial court’s consideration of a written study ordered by the trial court bearing on the merits of the persons seeking custody and the homes involved. The study was prepared by a public welfare worker for the Texas Department of Public Welfare. The study was introduced by ap-pellees as a “Joint Exhibit,” and the trial court directed, “This Joint Exhibit will be marked as one.” Also, the court stated: “The record will show this as receipt of Court Exhibit 1.” The record does not show that appellant raised any objections whatsoever during the course of the trial to the receipt of the study or as to any aspect thereof, or to the court’s announced consideration of such study along with other evidence. The study was dated September 16, 1974, and no complaint was made by the appellant that it was unavailable to her for inspection. Tex. Family Code Ann. § 11.-14(f) provides that when information contained in the report or study is before the court, the person making the study or report is subject to both direct examination and cross-examination. Appellant makes no complaint that Kathy Teague, the public welfare worker who prepared the court study, was unavailable to testify at the trial. The record does not show that she was subpoenaed to appear as a witness. Under these circumstances we do not think appellant can now properly complain of the receipt and consideration by the trial court of the court study. Matter of A. A. A., 528 S.W.2d 337 (Tex.Civ.App., Corpus Christi 1975, no writ). Erwin v. Erwin, 505 S.W.2d 370 (Tex.Civ.App., Houston [14th Dist.] 1974, no writ). In Magallon v. State, 523 S.W.2d 477 (Tex.Civ.App., Houston [1st Dist.] 1975, no writ), relied upon by appellant in support of her contention that the report was improperly admitted, the record before the appellate court did not contain a copy of the report. The record in that case did not even reflect that the report was formally received into evidence, but only that the trial court considered the report to be part of the record. The Court of Civil Appeals in Magallon merely held that if such report is received in evidence in a trial before the court, it will be presumed that the inadmissible portions of the report were disregarded by the trial court. Further, the appellant complains in her brief of the admission of testimony concerning certain criminal charges made against the appellant’s husband, Hector Gonzales. However, no objection was made to the admission of such evidence during the trial of the case. In this non-jury trial, we must assume that the trial court disregarded any inadmissible evidence in determining the decree to be entered. Hosmer v. New York Buyers’ Ass’n., 258 S.W. 853 (Tex.Civ.App., San Antonio 1924, writ ref’d); Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App., Tyler 1964, writ ref’d n. r. e.); Day v. Crutchfield, 400 S.W.2d 377 (Tex.Civ.App., Texarkana 1965, writ dism’d).

The trial court has had an opportunity to observe the personalities of the claimants and to assess the physical, mental, moral and emotional needs of the children. The trial court’s judgment in determining the best interests of the child and in awarding custody in accordance with that determination should be reversed only when the record as a whole reveals that the trial court abused its discretion. Herrera v. Herrera, supra; Mumma v. Aguirre, supra. It is our opinion that the record as a whole does not reveal that the trial court abused its discretion, and that the judgment of the trial court should not be disturbed on appeal. The decree of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    HOL-MAIN CORPORATION et al., Appellants, v. Gladys DISSEN, Co-Independent Executrix for the Estate of W. J. Dissen, Deceased, Appellee.
    No. 1056.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1975.
    Sanford J. Slobin, Brochstein & Slobin, Houston, for appellants.
    Richard N. Carrell, Fulbright & Jaworski, Houston, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit to recover the defaulted rental payments due under a lease. The case was tried before the court without a jury which resulted in a judgment for the plaintiff in the amount of $8,000.00, together with interest and costs. The defendants Hoi-Main Corporation, et al, perfected their appeal to the 14th Court of Civil Appeals by filing their transcript on July 30,1975. The Supreme Court transferred this case to the Thirteenth Court of Civil Appeals. The appellants did not file a statement of facts, nor did appellants file its brief in accordance with Rule 414, T.R.C.P.

On October 20, 1975, the Clerk of this Court received a letter from appellants’ attorney advising that the appellants did not wish to pursue the appeal. The Clerk, in acknowledging receipt of this letter, advised the attorney for the appellants that the Court wanted appellants to file a motion to dismiss the appeal. Such motion has not been filed and over sixty (60) days has passed.

On December 19, 1975, the appellee filed her motion to affirm on certificate. She attached to her motion a certified copy of the judgment rendered by the Honorable Warren P. Cunningham, Judge of the 164th District Court of Harris County, Texas, together with the certificate of the District Clerk certifying that the Honorable Ray Hardy, said Clerk, had received $500.00 as cash deposit in lieu of the appeal bond to cover the costs of the appeal, as provided by Rule 387, T.R.C.P. The Court finds that all parties to this appeal have received ten (10) days’ notice of the filing of the motion to affirm on certificate.

When an appellant has failed to file its brief in the time prescribed, the appellate court may dismiss the appeal for want of prosecution, or the Court may decline to dismiss the appeal and give such direction to the cause as it may deem proper. Rule 415, T.R.C.P. We have read the transcript and have determined that it does not present any matter involving fundamental error nor does it present any questions of law that are of any importance to the public in general as distinguished from the parties to this appeal. In view of the foregoing, we are of the opinion that the appellee is entitled to affirmance of the judgment of the trial court and that her motion to affirm on certificate should be granted. The Court declines to dismiss the appeal; it finds that all prerequisites in the motion have been complied with and, therefore, grants appellee’s motion to affirm the judgment of the trial court.

Affirmed.


text:
    Hunter L. CARRUTH, Appellant, v. SHELTER AIR SYSTEMS, INC., Appellee.
    No. 16608.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 1975.

      Meyer Jacobson, Houston, for appellant Hunter L. Carruth.
    Turner & White, Joe E. Turner, Houston, for appellant Connie R. Carruth.
    No brief filed for appellee.
   PEDEN, Justice.

Hunter L. Carruth has invoked the appellate jurisdiction of this court by petition for writ of error to review a judgment nihil dicit granted in favor of the appellee, Shelter Air Systems, Inc. Connie R. Carruth, a co-defendant in the trial court, did not join in the petition for writ of error, but was named in it as an adversely interested party and has filed a brief asking for the same relief as the appellant.

This suit was filed in 1972 against Car-ruth Refrigeration and Carruth Refrigeration Co., Inc., a/k/a Carruth Refrigeration Company on a sworn account and against Hunter Carruth and Connie Carruth to enforce their independent guaranty agreement to pay all debts of Carruth Refrigeration.

In February, 1975, when this cause was reached for trial, an order was entered granting plaintiff’s motion to sever its claims against the companies from those against Hunter Carruth and Connie Car-ruth. The case against these two persons then proceeded to trial, and judgment was entered for the plaintiff reciting that the cause had been called in its regular order and that although the defendants had been duly served with process and had received notice of the hearing, they failed to appear. Judgment was entered against these two persons, jointly and severally, in the amount of $11,923.13 plus $4,000.00 in attorney’s fees.

Hunter Carruth argues under his first point of error that the trial court lacked jurisdiction over him after the corporate defendant was severed from the suit and that the severance created a new and independent suit. We overrule this point. The trial judge severed the cause of action against two groups of defendants and had docketed them as two separate suits; the plaintiff’s petition was a sufficient pleading in each of them. Hunter Carruth and Connie Carruth had filed answers, so they were before the court, and since no new cause of action had been alleged, it was unnecessary to again obtain service of process on them.

Another of Hunter Carruth’s points of error is that the trial court erred in granting the severance. He says the issues are so closely interwoven that the entire case should have been tried at one time.

We do not agree. Two bases of recovery were pleaded: one against the corporate defendant on an open account and the other on an independent guaranty agreement under which Hunter Carruth and Connie Carruth undertook, as primary obligors, to pay any debt of Carruth Refrigeration and agreed that Shelter Air Systems was not required to first try to collect from the company or to join the company in any suit against the guarantors.

Rule 41, Texas Rules of Civil Procedure, gives the trial court broad discretion in severance matters. The issues under the two bases of recovery are not so interwoven as to show an abuse of discretion in severing them, particularly when it is apparent that judgment nihil dicit may be entered in one of the severed causes. Further, in the absence of a statement of facts we presume that the evidence supports the trial judge’s ruling and we cannot say that he abused his discretion.

Appellants says that a jury fee was paid by an attorney for the defendants and alleges that the trial court committed reversible error by reciting in the judgment that a jury was expressly waived by defendants. It appears that the appellant did not expressly waive a jury, but it is undisputed that he failed to appear at the trial. Since January 1, 1971, Rule 220, Texas R.C.P., has provided: “. . . Failure of a party to appear for trial shall be deemed a waiver by him of the right to trial by jury.” The error in characterizing the waiver as express was harmless. Rule 434, Tex.R.C.P.

We sustain the appellant’s fourth point of error. In it he says the trial court erred in granting attorney’s fees to the appellee because the guaranty agreement does not provide for them. As we have noted, the liability of the appellant is based on the guaranty agreement, not on the sworn account for materials. Art. 2226, V.T.C.S., does not provide for payment of attorney’s fees by guarantors under the facts of this case, and as we recently pointed out in Janak v. Security Lumber Co., Inc., 513 S.W.2d 300 (1974, no writ):

“It is well settled that signers of guaranty agreements are not liable for attorney’s fees incurred in suits to enforce such guaranty agreements in the absence of an express provision for such liability. Blume v. National Homes Corp., 441 S.W.2d 176 (Tex.1969); Miller v. Bush, 42 S.W.2d 156 (Tex.Civ.App.1931, writ ref.).”

There being no provision for attorney’s fees in the guaranty contract in the instant case, the judgment will be reformed to exclude the $4,000.00 granted for attorney’s fees.

We make the same rulings with respect to the points of error stated in the brief filed by Connie L. Carruth. They do not differ materially from those filed by Hunter Carruth, and she is a proper party in this appeal by writ of error. Although she neither joined in Hunter Carruth’s petition for writ of error nor filed one of her own, his petition named her as an adversely interested party. The judgment provided that the appellee should recover its attorney’s fee from Hunter Carruth and Connie Carruth jointly and severally. She was properly named as a defendant in error when the trial court’s judgment was removed to the court. Spur Independent School Dist. v. Holt, 74 S.W.2d 420 (Tex.Civ.App.1934, no writ).

We sustain her point of error complaining of the award of an attorney’s fee.

The judgment of the trial court is reformed to exclude the granting of the attorney’s fee of $4,000. As thus reformed, the judgment is affirmed.


text:
    Larry Julian BLACKMON, Appellant, v. Patricia Louise BLACKMON, Appellee.
    No. 16604.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 1975.
    Rehearing Denied Jan. 29, 1976.

      C. D. Keenan, Vern J. Thrower, Houston, for appellant.
   EVANS, Justice.

This appeal is from an order of the Court of Domestic Relations granting an “amended” motion of appellee, Patricia Louise Blackmon, to modify conservatorship and to increase child support payments. Under a prior order of the court, appellant, Larry Julian Blackmon, had been designated managing conservator of the parties’ minor child and the essential question for our determination here is whether the “amended” motion filed by Patricia Louise Blackmon constituted a new and independent action for modification.

The record reflects considerable confusion in the procedural history of this and related controversies between the parties which, to some extent, has resulted from the docketing of related proceedings under separate trial docket numbers. A brief review of the proceedings involving this appeal, and insofar as pertinent, two other appeals involving the same parties decided this date by separate opinions, may be helpful in understanding the problems presented by this appeal.

The parties were divorced in July 1972, in Cause No. 906,672, and under that decree Mrs. Blackmon was granted custody of the parties’ minor child.

On September 17, 1974, Mrs. Blackmon filed a habeas corpus action seeking return of the child to her in accordance with the divorce decree. This action was separately filed as Cause No. 997,102 on the court’s docket.

Coincidentally, on that same date, Larry Blackmon instituted a separate action in the same court, as Cause No. 997,045, wherein he sought to modify the custody provisions of the divorce decree.

On October 4, 1974, the court, by docket' entry in the habeas corpus action brought by Mrs. Blackmon, ordered the return of the child to her on October 5, 1974. However, no written order was entered as a result of such docket entry until January 3, 1975, as discussed below.

On November 25, 1974, the court entered an order in the action brought by Larry Blackmon to modify custody, which designated him to be the managing conservator of the child. This order made no mention of its earlier docket entry in the habeas corpus action but recited that Patricia Blackmon had failed to enter her appearance in the modification proceedings, though duly and legally served with citation. This order became final and no appeal was taken therefrom.

Subsequently, on January 3, 1975, the court entered its written order in the habe-as corpus action which had been brought by Patricia Blackmon, effectuating its docket entry of October 4, 1974, and ordering the return of the child to Patricia Blackmon on October 5, 1974. At the time of the entry of this order the time designated for the return of the child had, of course, long since passed and Larry Blackmon was the designated managing conservator of the child under the court’s order of November 25, 1974.

On April 1, 1975, Patricia Blackmon filed another petition for habeas corpus, under a separate docket number as Cause No. 1,020,274, in which she asserted she was entitled to have the child returned to her under the provisions of the initial divorce decree.

On April 4,1975, the trial court by docket entry in the first habeas corpus action and also by interlineation in its written order entered in that proceeding on January 3, 1975, purported to amend that order so as to require compliance by return of the child that same day. We have in a related appeal this date held that the court’s action in this respect was ineffective.

The court also proceeded to hear on April 4, 1975, a plea in abatement filed by Larry Blackmon in the second habeas corpus action wherein he asserted that he had been designated managing conservator of the child by the court’s order entered November 25, 1974, and that the issues raised by the second petition for habeas corpus had been adjudicated by that order. The court by order of same date granted this plea and dismissed the proceedings on the basis that it did not have jurisdiction.

After the dismissal of the second habeas corpus action, Patricia Blackmon, on May 12, 1975, filed an “amended” motion to modify conservatorship and to increase child support under the same docket number as the dismissed proceeding. In this motion she asserted that the court had continuing jurisdiction of the action; that she had been the managing conservator since the divorce decree and pursuant to the order entered January 3,1975; that the order which had been entered on November 25, 1974, designating her former husband, Larry Blackmon, as managing conservator, was in error, and, alternatively, that if the motion was filed within a year of the decree, there was reason to believe that the child’s present environment might endanger the physical health or significantly impair the emotional development of the child. This motion was supported by an attached affidavit in compliance with Section 14.08 of the Texas Family Code and pursuant to the provisions of that section, the court entered an order granting leave to file and setting the same for hearing on its trial docket. Citation was issued on the amended motion on May 19, 1975, and service was perfected on appellant, Larry Blackmon, on June 2, 1975.

In the interim, on May 30,1975, the court by separate orders granted motions filed by Patricia Blackmon under all three docketed causes, and ordered reinstatement on the court’s docket of the second habeas corpus proceeding (No. 1,020,274) and confirmation of the court’s order resulting from the April 4, 1975, habeas corpus hearing.

Subsequent to the aforementioned proceedings, other motions were presented to and acted upon by the court, but to detail such matters would, in our opinion, only tend to further confuse the issues involved on this appeal.

On July 14, 1975, the trial court proceeded to hear the amended motion filed by Patricia Blackmon to modify conservator-ship and support. As a result of this hearing the court on July 22, 1975, entered the order appealed from, designating Patricia Blackmon as managing conservator of the child and increasing the amount of the child support payments to $100.00 “each two (2) weeks.” This order was apparently filed in both Causes Nos. 1,020,274 and 906,672, although it does not appear that said causes were ever consolidated.

In his first three points of error appellant, Larry Blackmon, asserts that this order is invalid because Cause No. 1,020,274 had previously been dismissed by an order which had then become final; that the court in that cause was without authority to enter the order because of the pendency of an appeal from an earlier order in the same case affecting the same subject matter; that the court erred in hearing the matters of change of custody and child support because the cause as originally filed was an application for writ of habeas corpus.

In our opinion the disposition of this appeal is determined by the effect to be given the amended motion to modify con-servatorship and support. At the time such amended motion was filed there was no action pending on the court’s docket as Cause No. 1,020,274, since the habeas corpus proceeding docketed under that same number had previously been dismissed. The filing of the amended motion, although filed under the same docket number as the dismissed action, should, in our opinion, be considered as the institution of a new and independent “suit” within the meaning of Section 11.01, and related provisions of the Texas Family Code.

After the amended motion was filed and served upon appellant, Larry Blackmon, he filed a plea of privilege and subject thereto, an answer and plea in bar, in which he asserted that the order of dismissal was determinative of all issues involved in the amended motion. No error has been assigned as to the court’s action on the plea of privilege and, insofar as the record reflects, all issues raised by the amended motion to modify conservatorship and support were joined by the pleadings and heard by the court. Neither is there presented for our review any question of the sufficiency of the evidence to support the trial court’s judgment under Section 14.08(d) of the Texas F.imily Code.

Although the trial court was clearly without authority to enter an order reinstating the habeas corpus proceeding on its active docket, since more than thirty days had elapsed since the entry of the order of dismissal, its order purporting to reinstate such cause had no effect upon the motion for modification earlier filed as a new and independent suit.

We hold that neither the order of dismissal of the habeas corpus action nor the prior order of the court entered November 25, 1974, designating appellant as managing conservator, precluded the hearing and determination of the motion to modify conservatorship and support.

We further hold that it was not error for the court to proceed with the hearing of the motion to modify conservatorship and support during the pendency of a related appeal from an order dated May 22, 1975, denying appellant’s motion to set aside its order dated April 4, 1975, which purported to amend, by interlineation, its earlier order entered January 3, 1975. While the parties were the same, the subject matter of the writ of habeas corpus proceeding was essentially different from that of the subsequent action to modify conservatorship and support. See Sections 14.08 and 14.10, Texas Family Code.

“The instant action, as appellant ably argues, involved the same subject matter, in a sense, as did the previous proceedings; they each involved the custody of the child under the dominant factor of his welfare. But the core of the subject matter inherent in the present action, and the issue in dispute, not only differs from that in the prior action; it is entirely new. It alleges a change of condition requiring, in the child’s best interests, a different judgment than that rendered in the original divorce decree. The prior proceedings involved efforts seeking to enforce the provisions of that decree. This action is an independent civil suit having ‘for its purpose the changing of the order relating to custody of the minor.’” Gathright v. Riggs, 344 S.W.2d 757, 759 (Tex.Civ.App.—Waco, 1961, no writ).

For the reasons given above we overrule appellant’s first three points of error.

In his fourth and last point of error appellant, Larry Blackmon, asserts that the entry of the order appealed from in Cause No. 906,672, the original divorce proceedings, constituted a violation of his right of due process in that he was not given notice of a trial setting in that cause prior to the date of hearing.

It appears that there were no pleadings filed in Cause No. 906,672 on which the court’s order of modification and change of support payments could be based. Nor, as appellant contends, was he given appropriate notice of any setting of such motion for hearing in that cause. It was, therefore, error of the court to enter the order in the proceedings docketed as Cause No. 906,672, but in view of our holding that the order must be affirmed as to Cause No. 1,020,274, we view this as harmless error. Rule 434, Texas Rules of Civil Procedure.

Affirmed.


text:
    Larry Julian BLACKMON, Appellant, v. Patricia Louise BLACKMON, Appellee.
    No. 16553.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 1975.
    K. D. Keenan, Vern J. Thrower, Houston, for appellant.
   EVANS, Justice.

This appeal is from an order dated May 22, 1975, denying the motion of appellant, Larry Blackmon, seeking to set aside a pri- or order of the court dated April 4, 1975, in a proceeding for writ of habeas corpus filed by appellee, Patricia Louise Blackmon. We have decided two related appeals involving the same parties by separate opinions filed this date.

In one of these related appeals, involving an order for modification of conservatorship and support, we reviewed the sequence of proceedings between the parties in some detail. We will, therefore, only briefly review the proceedings here.

The parties were divorced in July 1972. Subsequently, on September 17,1974, Patricia Blackmon filed a habeas corpus action seeking return of the child. On that same date, Larry Blackmon instituted a separate action to modify custody under the divorce decree.

On October 4, 1974, in the habeas corpus action filed by Patricia Blackmon, the court by docket entry ordered the return of the child on October 5, 1974. However, no written order was then entered and it was not until January 3, 1975, that the court entered a written order purporting to effectuate its docket entry. In the interim, a hearing was held on Larry Blackmon’s action to modify custody and by order entered November 25, 1974, he was appointed managing conservator of the child.

On April 1,1975, Patricia Blackmon instituted this second habeas corpus proceeding asserting that she was entitled to have the child returned to her under provisions of the divorce decree. On April 4, 1975, by written interlineation in its order entered January 3,1975, the trial court purported to amend that order so as to require compliance by return of the child that same day, April 4, 1975. It also made a docket entry which recited that the earlier order of October 4, 1974, was in effect.

Also on April 4, 1975, Larry Blackmon filed a plea in abatement asserting that the issues involved in the second proceeding for habeas corpus had been adjudicated and determined by the order of November 25, 1974, designating him managing conservator of the child. On the basis of this plea, the court on April 4, 1975, ordered the action dismissed on the ground that it did not have jurisdiction.

On April 11, 1975, Larry Blackmon filed his motion to set aside the aforementioned order of the court dated April 4, 1975, which purported to amend by interlineation its earlier order entered January 3,1975. It is from the order denying this motion which appellant brings this appeal.

Appellant, Larry Blackmon, asserts the trial court erred in entering .the order of April 4, 1975, which purported to continue in effect its earlier order of October 4,1974, because the order of November 25, 1974, designating him as managing conservator superseded the order of October 4, 1974, and was then in effect. He also asserts that the court was then without authority to enter any order in such proceedings affecting the parent-child' relationship since the action was on that date dismissed for want of jurisdiction. We concur.

At the time of the entry of the order signed January 3, 1975, more than thirty days had expired since the date of the court’s order of November 25, 1974. Accordingly, the trial court was without power on April 4,1975, to enter an order in the habeas corpus proceeding which, in effect, changed the managing conservator designated under the order of November 25, 1974. We hold, therefore, that the order entered January 3, 1975, and also'the same order as purportedly revised by written in-terlineation requiring return of the child on April 4,1975, to have been ineffective. We also hold that the entry of the order of dismissal on April 4, 1975, precluded any further orders being entered in the habeas corpus proceeding. Thus, the trial court erred in denying appellant’s motion to set aside the order complained of in appellant’s motion.

Reversed and rendered.


text:
    Larry Julian BLACKMON, Appellant, v. Patricia Louise BLACKMON, Appellee,
    No. 16572.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 1975.
    K. D. Keenan, Vern J. Thrower, Houston, for appellant.
   EVANS, Justice.

This is an appeal from a judgment nunc pro tunc entered June 10,1975, wherein the trial court purported to correct certain errors in two separate causes pending in said court as No. 997,045 and No. 997,102. This is a companion case to two related appeals affecting the same parties and subject matter. Such appeals have been disposed of by opinions this date filed in separate proceedings.

The order appealed from recites that the November 25, 1974, judgment in Cause No. 997,045 had been entered in error “as both cause nos. 997,102 and 997,045 were heard one at the same time and that as a result thereof” Patricia Blackmon was “still made and named” the managing conservator of the child.

The order decreed that cause no. 997,045 was a nullity and should not have been entered and that the order in cause no. 997,102 was controlling and was, therefore, confirmed as the final order of the court.

In one point of error appellant asserts that the judgment nunc pro tune is void because it attempted to make a judicial correction of a prior judgment which had become final by operation of law. We concur.

As set out in more detail in the opinions rendered in the related appeals referred to above, cause no. 997,102 was a habeas corpus action brought by Mrs. Blackmon which resulted in the court making a docket entry on October 4, 1974, requiring the return of the child to Mrs. Blackmon on October 5, 1974. No written order was entered at the time the docket entry was made and in fact it was not until January 3, 1975, that the court purported to enter a written order effectuating the docket entry. At the time of the entry of this order the time for the return of the child had, of course, expired.

Cause no. 997,045 was brought by Larry Blackmon to modify custody under the divorce decree and resulted in the entry of an order dated November 25, 1974, whereby Mr. Blackmon was appointed managing conservator of the child. This order became final and non-appealable thirty days after its entry.

The purported nunc pro tunc judgment did not merely correct a clerical error; on the contrary it purported to set aside and hold for nought an order which had become final by its terms and over which the court had no further power or control. This was clearly error. Comet Aluminum Company v. Dibrell, 450 S.W.2d 56, 58 (Tex.Sup.1970); Universal Underwriters Insurance Co. v. Ferguson, 471 S.W.2d 28, 29 (Tex.Sup.1971); Tunnell v. Otis Elevator Company, 404 S.W.2d 307, 308 (Tex.Sup.1966).

Reversed and rendered.


author: BISSETT, Justice. NYE, Chief Justice

text:
    Brenda SCHIESSER, Appellant, v. The STATE of Texas, Appellee.
    No. 1057.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1975.
    Rehearing Denied Jan. 30, 1976.

      James C. Henry, III, Stovall, Wilhite, Leger & Gilbreath, Houston, for appellant.
    E. M. Dellinger, Cullen B. Poe, Sara McIntosh, Houston, for appellee.
   OPINION

BISSETT, Justice.

This appeal arises out of a suit brought by the State to terminate the parent-child relationship between Brenda Shadowens Schiesser and her three children. The case was tried before the court without a jury on March 11, 1975. The trial court entered judgment on March 31, 1975, whereby defendant’s parental relationship with her children was terminated and the Harris County Child Welfare Unit was appointed managing conservator for the children. Brenda Shadowens Schiesser, defendant, has perfected an appeal from that judgment.

The court made the following findings of fact relevant to the questions before this Court: that appellant, the mother of the children, voluntarily left her children in the possession of the Harris County Child Welfare Unit and expressed no intent to return; that the children were in possession of the Harris County Child Welfare Unit for three months; that the children were supported by Harris County for three months; that termination of the parental rights of the appellant is in the best interest of the children. The court concluded that the parental rights of appellant to her three children “are permanently terminated”.

Appellant, in her third point of error, claims that the trial court did not have jurisdiction to enter any judgment because the cause was previously dismissed by ap-pellee and was subsequently reinstated without any hearing or notice provided to her. She argues that the reinstatement of a dismissed cause of action without any notice or hearing is a violation of due process.

The litigation was instituted on July 23, 1973, when the State filed its petition in the Juvenile Court of Harris County, Texas. Several amended petitions were subsequently filed. The transcript does not show that any answer was filed by appellant. The case was dismissed by order which was signed on January 3, 1975, pursuant to motion by the State “for insufficient evidence”. On January 10,1975, a motion was filed by the State to set aside the order of dismissal, and on January 14,1975, the trial judge signed an order which did set aside the dismissal. Another motion was filed on January 23, 1975 to set aside the order of dismissal and to reinstate the previous order which appointed the Director of the Harris County Child Welfare Unit as temporary managing conservator of the three children. On January 30, 1975, the trial judge signed an order which also set aside the order of dismissal, and reinstated the order which provided for temporary managing conservatorship of the children. Appellant was not given any notice of the motions to dismiss the case, of the motions to set aside the order of dismissal, or of the orders which set aside the dismissal and reinstated the case.

A trial on the merits was held on March 11, 1975. Appellant and her attorney appeared and appellant testified at the trial. The judgment, which was signed on March 31, 1975, recited that the best interest of the children will be served by appointing Harris County Child Welfare Unit as managing conservator for them. It was decreed that the parent-child relationship between appellant and the children “be and it is hereby terminated”, and that Harris County Child Welfare Unit be appointed managing conservator of the children.

Appellant did not find out about the motions to dismiss, the order of dismissal, the motions to set aside the dismissal, and the orders which set the dismissals aside and reinstated the case until after judgment had been signed. After discovery thereof, appellant complained of such actions in her amended motion for new trial, which, apparently, was overruled -by operation of law.

Appellant contends that the lack of notice to her rendered the reinstatement order void, and that the trial court lacked jurisdiction over her in the main cause, thus rendering the judgment of March 31, 1975 void. She relies on the cases of Clifton Mercantile Co. v. Summers, 283 S.W. 203 (Tex.Civ.App.—Waco 1926, no writ); Turman v. Turman, 123 Tex. 1, 64 S.W.2d 137 (Tex.Comm’n App.1933, opinion adopted) and Strange v. Strange, 464 S.W.2d 364 (Tex.Sup.1971). She cites the cases for the proposition that after the suit has been formally dismissed, the court may not properly proceed to trial and judgment without further notice to her. The cited cases can be distinguished from the case at bar. In each of those cases, the defendant had actual notice that the cause had been dismissed, and had relied upon the dismissal. Here, the appellant did not have any such notice, and in the absence of such notice, could not have relied upon the dismissal. Moreover, there is no evidence that the motion to set aside the order of dismissal and to reinstate the case involved any question of fact. Appellant has offered no evidence or made any argument which demonstrates what she would have done to oppose the reinstatement order had she had notice thereof, or how the granting of the motions to set aside the order of dismissal affected her defense in the suit brought by the State against her. There is no showing that the lack of notice has prejudiced the appellant in any way, or amounted to such a denial of appellant’s rights as was reasonably calculated to cause and did cause the rendition of an improper judgment in the case. See Rule 434, T.R.C.P. Appellant’s third point is overruled.

Appellant, in her first and second points of error, asserts that the trial court erred in terminating her parental rights under § 15.-02(1)(B) of the Texas Family Code because there was “no evidence” to sustain the findings that she voluntarily left the children in the possession of another not the parent without expressing an intent to return, without providing for their adequate support and remained away for a period of at least three months; and that the evidence is factually “insufficient” to sustain those findings. Neither point can be sustained.

In reviewing the record to determine the merits of a “no evidence” point of error, this Court must examine the record for evidence which supports the trial court’s decision and disregard all evidence contrary to the findings of the trial court. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). In analyzing appellant’s factually “insufficient evidence” point of error, this Court must review the entire record, weigh all the evidence, and determine if the judgment complained of is wrong and manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The Tex. Family Code Ann., § 15.02 (1974), provides, in part:

“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; . . ”

The children were first removed from appellant’s custody at her own request in 1972. Appellant was then estranged and separated from Freddie Shadowens, her husband at that time. Shortly after the children were given over to the appellee in 1972, the appellant began living with one William Schiesser, whom she married sometime after November, 1974, but prior to trial. In September, 1974, appellant obtained divorce from Freddie Shadowens, but she continued to live with William Schies-ser. In November, 1974, the three children were returned to appellant’s custody. Five days after their return, the appellant called the Harris County Child Welfare Unit and requested that they come pick up the children. The children were again returned to the custody of the Harris County Welfare Unit on November 20, 1974.

There is evidence that Schiesser, the man with whom appellant was living in November, 1974, did not want the children in his home. The record is devoid of any evidence that the appellant ever expressed any intent to return for the children. Absent any positive evidence of such intent, it was proper for the trial court to find that the appellant did not intend to return for her children.

The record clearly shows that the children were placed in the hands of the Harris County Child Welfare Unit, which is a charitable, publicly-funded institution. There is no evidence in the record that the appellant contributed any money to this institution to defray the cost of supporting her children. Additionally, appellant, in her brief, admits she did not support her children while they were in the custody of the child welfare unit.

The record also indicates that the children remained in the continuous possession of the Harris County Child Welfare Unit from November 20, 1974 until the date of the trial on March 11, 1975. That period of time is in excess of three months. Appellant visited her children once during that interval of time.

There is ample evidence to support the findings made by the trial court and the judgment that was rendered. Appellant’s first and second points are overruled.

The judgment of the trial court is affirmed.

NYE, Chief Justice

(concurring).

I disagree with the majority’s holding that the appellant did not have notice of the order of dismissal and the reinstatement of the case. The record shows that the motion to dismiss, the order of dismissal, the motion to set aside the dismissal, and the orders reinstating the case were all a part of the official record of the case. The attorney for the appellant had access to all of the pleadings of the case prior to trial. Even the court’s docket sheet “noted” that such prior action had taken place. The attorney had constructive, if not actual, notice of all of such prior trial proceedings at the time he announced “ready for trial” on the merits of the case. His appearance and participation in the trial amounted to a waiver of his right to object to the preliminary matters of record that took place prior to the actual trial.

Any party to a suit may appear by his attorney and his appearance is binding on the litigant. The appellant does not claim here on appeal that her attorney did not have authority to appear therein and represent her. The courts of Texas will not set aside a judgment because of the negligence or mistakes of his attorney who participated in a trial. Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App—Corpus Christi 1965, writ ref’d n.r.e.), reh. denied, 385 U.S. 964, 87 S.Ct. 389, 17 L.Ed.2d 309; 34 Tex. Jur.2d § 213; 25 Tex.Jur.2d §§ 2-6; and cases cited therein. In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.). See also Metts v. Waits, 286 S.W. 923 (Tex.Civ.App.—Austin 1926, no writ); Maeding v. Maeding, 155 S.W.2d 991 (Tex.Civ.App.—Galveston 1941, no writ).

The pleadings, the orders and the docket sheet were all a part of the official record in this case. All of the matters that the appellant now complains of were of record and were officially before him when he announced ready for trial. His complaint after trial comes too late. He should have made his objection to such preliminary matters before the trial began.

It is an attorney’s obligation to know what appears in the pleadings on file and in the official record of his case. Such knowledge of the attorney is imputed to his client. There was no action taken by the appellee or the trial judge that prejudiced any of the rights of the appellant. She had her “day in court”. In absence of fraud, a party is as fully concluded by the acts of the attorney as if he were acting for himself. Fonseca v. County of Hidalgo, 527 S.W.2d 474 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.).

I agree that the judgment of the trial court should be Affirmed.


author: YOUNG, Justice.

text:
    Eliseo A. GARZA et al., Appellants, v. The SAN ANTONIO LIGHT et al., Appellees.
    No. 982.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1975.
    Rehearing Denied Jan. 30, 1976.

      Carl C. Chase, Chase & House, Corpus Christi, for appellants.
    James D. Baskin, Jr., Matthews, Nowlin, MacFarlane & Barrett, San Antonio, for appellees.
   OPINION

YOUNG, Justice.

This is an action for libel brought by Elíseo A. Garza and his wife as next of friend for their minor daughter, Mary Garza, against the San Antonio Light, a newspaper, and others. The newspaper published an article on January 30, 1970 entitled “San Antonio’s Forgotten Adoptables” which contained the photograph of Mary Garza. The case was submitted to a jury on special issues. The trial court accepted a verdict in which the jury: (1) left unanswered several of the special issues about liability; (2) did answer the damage issues with “None” as general damages and “$25,-000.00” as exemplary damages. Based on the partial verdict, the trial court rendered a take nothing judgment. The Garzas appeal from that judgment.

The San Antonio Light is a daily newspaper published in San Antonio, Texas. The author of the offending article was Nathan Sherman, a reporter for the newspaper. Sherman had been instructed by his superiors to write a public service article about children ready for adoption in San Antonio who, for various reasons, were difficult to place in adoptive homes. Sherman conducted interviews and collected photographs for his article from various child care and adoption agencies in San Antonio. The photographs were of children who were not adopted in the immediate San Antonio area and the identities of the children were not known to Sherman.

The published article contained six ease histories with accompanying photographs of small children. The names, photographs, and case histories did not match, nor were they intended to. The photograph accompanying the story about “Lupe” was a photograph (several years old) of Mary Garza. The family background of “Lupe” was described in the article as follows:

“Lupe, ‘a beautiful child and very much adoptable,’ is overlooked by '. ospective parents because her family tree is cluttered with drug addicts, prostitutes and illegitimate children.
Lupe . . . was born to a woman who is a former patient of a state mental hospital who has been arrested several times on narcotics charges.
Before Lupe was taken from her home by the state she had been living with her grandmother, also a prostitute, and her grandfather, who was in jail on charges of criminally assaulting his 12-year-old daughter.”

This is not, however, the family background of Mary Garza. Mary was adopted at the age of three and was nine years of age at the time of the publication. She had not been informed that she was adopted until about a year before trial. She had not been made aware of the article or its contents until the time of trial. There is evidence that she had neither seen nor read the article and had been neither teased nor harassed as a result of the article.

The case was submitted to the jury on special issues and the record reflects that the jury had difficulty during their deliberations in answering the various special issues. They sent a series of four notes to the court. Three of the notes indicated that the jury could not arrive at a verdict. The other note was as follows:

“Please give us the definition of the word ‘Tending’ as used in Special issues 1 thru 6. Does it apply at the time suit was filed, present or future?
Foreman — /s/ Manuel Segura”

The court then contacted all attorneys to discuss a possible answer. A response was drafted and was eventually delivered to the jury in the following form:

“LADIES AND GENTLEMEN OF THE JURY:
You are instructed that each of Special Issues No. 1 through 6 should read (with the exception of the omitted words):
‘Do you find from a preponderance of the evidence that at the time of publication the article and photographs was a publication:
A. Tending to . . . (Emphasis supplied.)

Before the note was delivered to the jury, the appellants urged the court to change also the wording of Special Issue No. 9, the general damage issue, because they felt the new wording of Special Issues No. 1 through 6 would have the effect of directing the jury to limit the award of damages to injury incurred at the time of publication. The court refused to change Special Issue No. 9, but offered appellants the opportunity to present additional jury argument under the provisions of Rule 286, T.R. C.P. They declined this offer. The court then inquired whether the parties wished to have the jury brought back into the courtroom to read to them the answer to their question. All parties agreed that it would be sufficient for the instruction to be delivered in its written form to the jury room; it was delivered as agreed. The jury thereafter returned the incomplete verdict.

In five points of error the appellants complain that the trial court erred by: (1) trying the case on an incorrect basis of law; (2) failing to give the jury a requested definition; (3) failing to submit to the jury a requested special issue; (4) sending a note to the jury, after deliberations had begun, changing the wording of several special issues; and (5) granting judgment on the partial jury verdict.

We will first discuss appellants’ fifth point complaining about predicating the judgment on the partial jury verdict. In that regard, the record reveals that when the jury returned to open court, the foreman announced to the court that the jury had not been able to answer all of the issues, but that ten jurors had been able to agree upon the answer to certain issues. After the court inspected the verdict, it was presented for inspection to counsel for all parties. It was inspected by them and in open court counsel for all parties requested that the court receive and file the verdict. The court announced that the partial verdict of the jury was received and ordered filed. Thereafter, the jury was discharged.

The jury has answered “None” to the general damage issue, Special Issue No. 9. If the jury had given answers favorable to the appellants on the unanswered special issues about liability, the appellee newspaper would still be entitled to judgment because of the “None” answer about damages. That is, the results of the case would be the same and the unanswered special issues are immaterial. The trial court, therefore, correctly entered judgment on the partial verdict of the jury. Elliott v. Hamilton, 512 S.W.2d 824, 827 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Further, it is the duty of the party dissatisfied with a verdict to make known his objections to the court before the verdict is accepted and the jury discharged. The appellants have not properly discharged their duty and, therefore, have not preserved their objection. Elliott v. Hamilton, supra. Appellants’ fifth point is overruled.

Appellants contend in their second point that it was error for the trial court to refuse to define the term “public hatred”. The request and the suggested form of the definition was made by the appellants as they dictated their objections to the charge to the court reporter. In their third point the appellants contend that it was error to refuse to submit a requested special issue. That request and the suggested form of the special issue were also made as the appellants dictated their objections to the court’s charge. These points must be overruled.

The objections to the court’s charge and the submission of the definition and special issues were made together. The failure to submit definitions or special issues may not be considered as error by an appellate court unless they have been requested separate and apart from the objections made to the court’s charge. Vega v. Royal Grown Bottling Company, 526 S.W.2d 729, 734 (Tex.Civ.App.—Corpus Christi 1975, no writ); Samford v. Duff, 483 S.W.2d 517, 527 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); Rule 273, T.R.C.P. Appellants’ second and third points are overruled.

In their fourth point, the appellants urge that it was error for the court to send a note to the jury after deliberations had begun. They further contend that the note was a comment by the judge on the weight of the evidence because it would limit the jury’s award of damages to “the time of publication” and the jury would not consider those damages which reasonably, naturally, and proximately flow from the article at a later date.

The appellants cite Garcia v. Sky Climber, Inc., 470 S.W.2d 261 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.) as authority for their contention that the note was a comment upon the weight of the evidence. In Garcia, the jury returned conflicting answers to the special issues. The trial judge retired the jury for further deliberation with additional instructions which the Court of Civil Appeals considered could have been interpreted as indicating to the jury that the judge questioned its answers to those issues to which the additional instructions related. We do not find that such a comment was made in this case. Also, in the present case the judge was not aware of any of the jury’s answers to the special issues at the time of the questioned communication.

The appellants also argue that the court and counsel may not agree to waive the requirements of Rule 286, T.R.C.P., when communicating with the jury during its deliberations, citing Missouri Pacific Railroad Co. v. Cross, 501 S.W.2d 868 (Tex.Sup.1973). Rule 286 requires that after the jury has retired, they shall be returned to the courtroom to submit questions they may have, in writing, and any further instruction given shall be in writing and in conformity with the rules relating to the charge.

We do not find Cross to be controlling here. The errors committed by the trial court in Cross were numerous: the court approved an agreement between counsel that objections to the charge could be made while the jury was deliberating; the court orally communicated with the jury in the hallway; the court abused its discretion in failing to correct the wording of a special issue by written instruction; the errors resulted in a conflict in the jury’s answers; and the court disregarded the jury’s answer to certain special issues. We do not find that the Texas Supreme Court in Cross has overruled the decision in Colls v. Price’s Creameries, Inc., 244 S.W.2d 900 (Tex.Civ. App.—El Paso 1951, writ ref’d n. r. e.).

The holding in Colls was that the requirement of bringing the jury into the courtroom to read to them further written instructions may be waived when both parties expressly agree with the court that the written instructions may be delivered to the jury room by the bailiff. As previously indicated, all parties in our case acquiesced in the procedure suggested by the court. They may not now complain of that procedure. Appellants’ fourth point is overruled.

Appellants contend in their first point that the trial court committed fundamental error in ruling and trying this libel action on the basis that appellee, the San Antonio Light, had the right to publish this article about a private individual as a public interest article. They further contend that no privilege exists in the law to publish any matters concerning a private individual. The essence of appellants’ contention is that Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1975), should be controlling in the determination of the rights and duties of the parties herein, as opposed to the decision in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). It is appellants’ view that Gertz affords a more lenient standard for recovery by a plaintiff than does Rosenbloom. But as shown by the following, the standard of recovery used by the trial court was not what precluded the appellants from prevailing.

As we have mentioned, the jury answered “None” to the inquiry in Special Issue No. 9 about actual damages. That issue reads in part as follows:

“Special Issue No. 9
What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence would reasonably compensate Mary Garza for the injuries, if any, which you find from a preponderance of the evidence she may have sustained to her reputation, and for the mental anguish and humiliation, if any, which she may have sustained as a proximate result of the publication of the article admitted in evidence as Plaintiffs’ Exhibit No. 2?”

The jury did award $25,000.00 as exemplary damages. But exemplary damages may not be awarded where actual damages are not shown. Girard v. Moore, 86 Tex. 675, 26 S.W. 945, 946 (1894); First Texas Prudential Ins. Co. v. Moreland, 55 S.W.2d 616, 621 (Tex.Civ.App.—Beaumont 1932, writ dism’d). Thus, appellants would not be entitled to recover here under either Gertz or Rosenbloom.

Appellants also urge in their first point that the trial court erred in ruling as a matter of law during the course of the trial that the complained of article concerned a matter of public or general concern. We find it is unnecessary to decide whether the trial court was correct in this regard, because it does not appear from the record that appellants were harmed thereby. The jury was not made aware of the court’s ruling, and the judgment is not based on that ruling. The appellants have not discharged their burden of showing that the alleged error amounted to such a denial of rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952); Rule 434, T.R.C.P. Appellant’s first point is overruled.

The judgment of the trial court is affirmed. 0