author: PEDEN, Justice.

text:
    GRAY-TAYLOR, INC., d/b/a Jimmie Green Chevrolet, Appellant, v. Johnny TENNESSEE, Appellee.
    No. 17193.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 19, 1978.
    Rehearing Denied Nov. 16, 1978.
    Bracewell & Patterson, William Fred Ha-gans, Andrew F. Spalding, Houston, for appellant.
    Stephen J. Cavanaugh, Bellaire, for ap-pellee.
   PEDEN, Justice.

Gray-Taylor, Inc., d/b/a Jimmie Green Chevrolet, appeals from a judgment in a suit filed by Johnny Tennessee based primarily on the Texas Deceptive Trade Practices Act (Tex.Bus. & Comm. Code Ann. § 17.41 et seq.). The jury found that Jimmie Green Chevrolet advertised a certain automobile for sale with the intent not to sell it as advertised a violation of Art. 17.-45(9) of the Act, and that Jimmie Green’s notice to the plaintiff of default on his vehicle was commercially unreasonable under Section 9.504(c), Texas Bus. & Comm. Code. The jury also determined reasonable attorney’s fees and assessed damages. The trial court held as a matter of law that Jimmie Green violated the Federal Truth In Lending Act, 15 U.S.C. § 1601, et seq., and Regulation Z, 12 C.F.R. § 226.1 et seq., by failing to provide a signature line following the full context of the retail installment contract. Appellant asserts no evidence and insufficient evidence points of error, contends that the award of $426.77 as compensation to the appellee was excessive and says the awards of $197.67 as a penalty for violation of Section 9.507 of the Uniform Commercial Code and $172.60 as penalty for violation for the Truth In Lending Act and Regulation Z were erroneous.

In August, 1976, Johnny Tennessee read the newspaper ads for used cars. On the day in question two significant ones were run. The first, placed by a Mr. Ben Nolan, stated:

Grand Prix ’75, take up payments, air, power, new radial tires, AM-FM radio, tilt steering wheel. Like new. Must sell. Owner getting company car. Installed CB, antenna and radar snooper optional. 358-6322

It is uncontroverted that the 358-6322 telephone number was at Mr. Nolan’s residence and that he had no association with Jimmie Green Chevrolet.

The second ad, by Jimmie Green Chevrolet, was located on the same page, was much larger than the first, and advertised several cars for sale, including this one:

’75 Pontiac Grand Prix, black on black, bucket seats, center console, power steering, power brakes, power seats, mag wheels, new steel belted radial tires, one owner .

Three telephone numbers were listed: 529-0710, 529-0803 and 529-4911.

Tennessee was interested in taking over the notes on a 1975 Pontiac Grand Prix. He testified that when he “called the number in the paper”, a man named Jones from Jimmie Green Chevrolet answered and said “the car that he had was a 1975 Grand Prix.” Tennessee testified that it was not one on which payments could be taken over from the owner. In later testimony, the appellee admitted that the ad he saw “wasn’t a Jimmie Green ad at all. It was a small print — regular ad.”

When the appellee arrived at Jimmie Green Chevrolet, he was informed that the car they said they had in stock had been sold but that they had other cars he might find of interest. He bought a 1969 Plymouth Fury for $200 down and agreed to make an additional payment of $150 on September 15, and the first installment of $94.80 on September 30. The contract price was $1093.75, with an additional $86.30 finance charge and a $23.60 insurance premium.

After accepting delivery of the car, the appellee had several problems with it. Its inspection sticker was expiring, so he returned it to Jimmie Green Chevrolet that same day. He finally got an inspection sticker, but two days later the brakes went out. The cost of repair was $104.29, and since the appellee was without funds, the mechanic held the car until he received a pay check. Meanwhile, he paid a coworker $20.00 every two weeks for transportation to and from work.

On September 16, Mr. Salter of Jimmie Green Chevrolet telephoned appellee concerning his default on the $150.00 payment due on September 15. Appellee complained that the repair bill for the car’s brakes would keep him from making the entire payment. The parties disagree about whether an agreement was worked out.

The car was repossessed and notice of repossession was sent to the appellee, stating that the car would be sold at public sale on October 1,1976, at 2:00 a. m. Mr. Salter admitted that the 2:00 a. m. time was an error and that the sale was scheduled for 2:00 p. m. On September 24, 1976, appel-lee’s counsel asked that the automobile not be sold, and at the time of trial, the car was still being held on the company’s premises.

Appellant first contends that the trial court erred in entering judgment for the plaintiff and in refusing to grant the defendant’s motion for directed verdict because the judgment is founded on Special Issue Number 2, and there is no evidence to support the jury’s affirmative answer to it. That issue asked:

Do you find from the preponderance of the evidence that Defendant Jimmie Green Chevrolet advertised the ‘Grand Prix, ’75, take up payments, air, power, new radial tires, AM-PM radio, tilt steering wheel. Like new. Must sell. Owner getting company car. Installed CB antenna and radar snooper optional, 358-6322?’

Special Issue Number 3 inquired:

Do you find from a preponderance of the evidence that the advertisement referred to in Special Issue No. 2 was made with intent not to sell the automobile as advertised?
It was also answered “We do.”

Appellee does not contend that Jimmie Green placed the ad in question in the newspaper, only that its salesman “adopted” it by representing that such Grand Prix was available for sale when the appellee called to inquire. We have examined the entire record and can find no evidence that the appellant’s salesman, Jones, represented that there was available, as the special issue inquired, a “Grand Prix, ’75, take up payments, air, power, new radial tires, AM-FM radio, tilt steering wheel. Like new. . Installed CB antenna and radar snooper optional. 358-6322.” Nor can we find any evidence that Jones represented to the ap-pellee that Jimmie Green had an automobile that could reasonably be identified as the one described in the special issue. We agree that there is no evidence to support the jury’s answer to Special Issue Number 2.

The submission of Special Issue Number 4 was predicated on an affirmative answer to No. 3, and inquired:

Do you find from a preponderance of the evidence that there was an adverse effect on the Plaintiff? ‘Adverse Effect’ means any damage or injury suffered as the proximate result of advertising the automobile referred to in Special Issues Number 2 and 3 with intent not to sell said automobile as advertised.

Special Issue Number 5, predicated on an affirmative answer to Number 4, asked whether the advertisement and intent referred to in Issues 2 and 3 were a producing cause of adverse effect on the plaintiff. In response to predicated issue No. 6, the jury found that $426.77 would reasonably compensate the plaintiff for the adverse effect caused by the advertisement and intent referred to in Special Issues 2 and 3.

We sustain the appellant’s first point of error to the extent that the trial court’s judgment is founded on the jury’s affirmative answer to Special Issue No. 2; this includes the answers to Issues 3-6.

The trial judge awarded the plaintiff $197.67 as a penalty for violation of Section 9.507 of the Texas Business and Commerce Code after the jury found in response to Special Issue No. 1 that the “notice of default” sent to the plaintiff by the defendant was not commercially reasonable. That section of the Code provides:

Section 9.507 Secured Party’s Liability for Failure to Comply with This Subchap-ter
(a) If it is established that the secured party is not proceeding in accordance with the provisions of this subchapter, disposition may be ordered or restrained on appropriate terms and conditions. If the deposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by failure to comply with the provisions of this subchapter. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten percent of the principal amount of the debt or the time price differential plus ten percent of the cash price, (emphasis added)
(b) The fact that a better price could have been obtained by sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner. .

“Consumer goods” are items bought or used primarily for personal, family or household use. Tex.Bus. & Comm. Code Ann. § 9.109.

In the appellant’s eighth point of error it says the trial court erred in awarding a recovery to the plaintiff for the commercially unreasonable notice of sale because the automobile sold to the plaintiff was never disposed of after repossession by the appellant. We sustain this point.

In the Uniform Commercial Code Comment appearing after Section 9.507 in Vernon’s Texas Business & Commerce Code it is stated: “. . . This Section therefore provides that a secured party proposing to dispose of collateral in an unreasonable manner, may, by court order, be restrained from doing so, . The Section further provides for damages where the unreasonable disposition has been concluded, and, in the case of consumer goods, states a minimum recovery.”

We do not agree with the appellee’s position that Section 9.507 entitles a debtor, simply because his collateral is consumer goods, to at least a minimum recovery if the creditor gives him a notice of proposed disposition that is not a commercially reasonable one — even though the creditor does not dispose of the goods. We consider that the statute was not intended to punish the creditor and recompense the debtor unless the debtor was harmed. Even though Jimmie Green Chevrolet appears to have made a false start, it could have issued new notices and could still have concluded a sale of the car in a commercially reasonable manner. We do not reach appellant’s Points of Error 9-11.

Appellant’s next points of error involve the Federal Truth In Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z, 12 C.F.R. § 226.1 et seq. The appellant contends that the trial court erred in directing a verdict for the appellee in the sum of $172.60 because all the required disclosures were on the face of the retail installment agreement and the form of the document was in compliance with the law.

Under the Federal Truth In Lending Act and its companion Regulation Z, required disclosures must be made “clearly and conspicuously”, (15 U.S.C. § 1631) and “in meaningful sequence . . . ” (12 C.F.R. § 226.6(a)). In addition “[a]ll disclosures shall be made together on either: (1) The note or other instrument evidencing the obligation on the same side of the page and above the place for the customer’s signature; or (2) One side of a separate statement which identifies the transaction.” 12 C.F.R. § 226.8(a). Included in the list of required disclosures is a description of “. . . any security interest held or to be retained or acquired by the creditor in connection with the extension of credit . . 15 U.S.C. § 1638(a)(10). See also 12 C.F.R. § 226.8(b)(5). When the required disclosures are incorporated into a contract or security agreement and the evidence of the transaction is a single document, Regulation Z provides:

(1) that the disclosures required by § 226.8 of the Regulation may be made on the face of the document, on its reverse side, or on both sides;
(2) that when the reverse side of the document is utilized, both sides must contain the statement “NOTICE: See other side for important information;” and
(3) that “the place for the customer’s signature shall be provided following the full content of the document.” 12 C.F.R. § 226.801

The retail installment contract in question is a two-sided document with the space for the customer’s signature located only on the face of the document. The face of the document lists required disclosures including a description of the security interest — “Buyer hereby acknowledges delivery and acceptance of Motor Vehicle in its present condition, and GRANTS TO SELLER A PURCHASE MONEY SECURITY INTEREST under the Uniform Commercial Code IN MOTOR VEHICLE, and in and to all proceeds, substitutions, replacement, additions, and accessions to the Motor Vehicle.” The “NOTICE: SEE OTHER SIDE FOR IMPORTANT INFORMATION” provision is located not only on the face of the contract but also on its reverse side. The reverse side of the document bears this provision:

4. Additions to Motor Vehicle — BUYER hereby agrees that all equipment, accessories, repairs, and parts placed upon MOTOR VEHICLE during the existence of the security interest hereby granted shall become a part of MOTOR VEHICLE and shall be subject to the terms and provisions of this contract.

The trial court found as a matter of law that defendant had violated the Truth In Lending Act and Regulation Z thereof by failing to provide a signature line following the full context of the document representing the retail installment contract in question. In McDonald v. Savoy, 501 S.W.2d 400 (Tex.Civ.App.1973, no writ), the contract failed to contain the “NOTICE” provision and the signature line was on the face of the document. The court held:

Here, the required statement instructing the customer to ‘See other side’ does not appear on both sides of the page. The signature lines appear only on the face of the page; and therefore, the requirement that the signature lines be provided following the full content of the document has been met.

Appellants argue that because all the required disclosures were on the face of the contract and contained the “NOTICE” provision on both sides, the appellee, in effect, had read the entire document before signing on the face of the contract. Regulation Z, Section 226.801, paragraph (b), states:

Where a creditor elects to combine disclosures with the contract, security agreement, and evidence of a transaction in a single document, the disclosures required under § 226.8 shall, in accordance with § 226.6, be made on the face of that document, on its reverse side, or on both sides: Provided, That the amount of the finance charge and the annual percentage rate shall appear on the face of the document, and, if the reverse side is used, the printing on both sides of the document shall be equally clear and conspicuous, both sides shall contain the statement, “NOTICE: See other side for important information,” and the place for the customer’s signature shall be provided following the full content of the document.

If a “NOTICE: See other Side” provision located on both the face and reverse of the document were sufficient to make a signature on the face of the contract follow “the full content of the document”, then the requirement that the customer’s signature follow the “full content of the document” would be unnecessary because no matter where the signature was located, it would follow “the full content.” We hold that since the contract did not provide a signature line on its reverse side, it violated the Federal Truth In Lending Act and Regulation Z. Further, the Truth In Lending Act and Regulation Z, 12 C.F.R. § 226.8, list eight specific disclosures which must be on the same side of the page and above the place for the customer’s signature (if they are made on the note or other instrument evidencing the obligation, as was done in our case). The fifth of the listed required disclosures includes this provision.

If after-acquired property will be subject to the security interest, or if other or future indebtness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification on the type of security interest held, retained or acquired. (emphasis added)

We hold that the above provision of the Act and Regulation was not met by the statement we have noticed that began “Buyer hereby acknowledges delivery . and GRANTS TO SELLER A Purchase MONEY SECURITY INTEREST . . . IN MOTOR VEHICLE ...” that appeared on the face of the document above the place for Mr. Tennessee’s signature.

Appellant’s final point of error asserts that the trial court incorrectly awarded attorney’s fees to the appellee. Appellee’s claim for attorney’s fees is based on both the Texas Deceptive Trade Practices Act, and the Truth In Lending Act. We have held that he is entitled to recover only under the Truth In Lending Act, and since the trial court did not apportion the award of attorney’s fees between the two bases for recovery, that portion of the judgment must be remanded for a determination of a reasonable attorney’s fee under the Truth In Lending Act recovery. Combined American Insurance Co. v. Jordan, 403 S.W.2d 811 (Tex.Civ.App.1966, writ ref. n.r.e.).

The judgment in favor of the plaintiff for $172.60 under the Truth In Lending Act, Regulation Z, is severed and is affirmed; the judgment in favor of the plaintiff for $1,050 under the Deceptive Trade Practices Act is severed and is reversed and is rendered that plaintiff take nothing, as is the judgment in plaintiff’s favor of $197.67 under Section 9.507 of the Texas Business and Commerce Code; the judgment in favor of the plaintiff for attorney’s fees is severed and is remanded so that a reasonable attorney’s fee may be determined for the plaintiff’s recovery under the Truth In Lending, Regulation Z, provisions alone.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Willie Joe WATTS v. Annette Ross WATTS.
    No. 18077.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 2, 1978.

      William W. McNeal, Luling, for appellant.
    Miller, Miller & Robinson and W. T. Miller, Gonzales, for appellee.
   OPINION

HUGHES, Justice.

This is an appeal from a judgment dismissing a petition seeking modification of an order determining the managing conser-vatorship of a child and appointment as managing conservator. The suit was brought by the child’s paternal grandfather more than one year after the entry of a divorce decree in which the child’s mother was appointed managing conservator. The mother filed a motion to dismiss on the grounds that the grandfather was not a party to the original action and that he had no interest in the child which authorized him to bring his petition for modification. The trial court rendered judgment dismissing the grandfather’s petition for modification unless he filed an amended petition to be appointed managing conservator which satisfied the requirements of the Texas Family Code Ann. The grandfather refused to amend and has appealed.

We reverse and remand for a trial on the merits.

The record before us consists only of the transcript containing the pleadings filed below. There is no statement of facts, and the grandfather’s statement in his brief that no evidence was offered by either party at the hearing on the motion to dismiss is unchallenged.

The grandfather by his petition filed in cause number 14,556 on July 14, 1977 in the 22nd Judicial District Court of Caldwell County, Texas, sought modification of an order appointing a managing conservator rendered in the same numbered cause on February 28, 1975, and prayed that he be appointed managing conservator. The divorce decree named the mother, who is the appellee herein, as managing conservator, and the father, who is appellant’s son, as possessory conservator. The petition alleged that the whereabouts of the child’s father is now unknown. It further alleged that since the entry of the order, more than one year before, “the circumstances of the child have so materially and substantially changed that retention of the present managing conservator, would be injurious to the welfare of the child” and that the appointment of the grandfather “would be a positive improvement for, and in the best interest of” the child.

In our discussion of the points in this appeal, all section citations will be to the Texas Family Code Ann.

The points presented raise two questions: First, does a grandparent have the type of interest in a grandchild that permits him to seek to replace the child’s parent as a managing conservator? Second, if he does have such an interest, under what section of the Family Code should he seek relief?

Grandfather contends, in his first point of error, that his “Petition to Modify” should not have been dismissed because he has an interest in the child which gives him standing to seek modification. A suit for appointment of a managing conservator is defined in § 11.05 as a suit affecting the parent-child relationship. Under § 11.03 these suits may be brought by anyone with an interest in the child including the child, an agency of the state or a political subdivision or any authorized agency. The statute does not define a person with an interest in the child. We hold that grandparents have the type of interest in their grandchildren which gives them standing to seek modification of conservatorship through their appointment as managing conservators.

By his second and third points of error grandfather contends his petition should have been sustained and he be allowed to assert his cause of action. Further, it was error to dismiss without hearing evidence because of the court’s continuing jurisdiction of legal matters concerning his granddaughter. We agree. In order to understand our rulings on these points, a general discussion of the applicable principles and sections of the Family Code is necessary.

Subtitle A deals with The Parent-Child Relationship and Suits Affecting the Parent-Child Relationship. The latter is defined in § 11.01(5) as a “suit brought under this subtitle in which the appointment of a managing conservator or a pos-sessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought.” The emphasis in these suits is no longer on the cause of action but rather on the remedy which will best serve the child’s interests.

Regardless of the various types of suits that could arise under this subtitle, the basic issue remains the best interest of the child. To further this end, the Code in § 11.05 adopted the concept of continuing jurisdiction. Simply stated, once a court has acquired jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters affecting the parent-child relationship unless the suit is transferred. This is to insure the court has as much information as possible including the history of past litigation involving the child.

To insure uniformity and to reemphasize that the focal point of all Subtitle A suits is the child and his welfare, § 11.08 requires all petitions in proceedings brought under this subtitle to contain the same basic information.

Suits for conservatorship, possession and support of children are governed by Chapter 14. The best interest of the child is required by § 14.07 to be the court’s main consideration. Because conditions affecting the child’s best interests can change, the legislature provided a method in § 14.08 whereby decrees under Chapter 14 can also be changed or modified. Complementing this modification procedure is the request for further action authorized by § 11.07(b). It includes all other types of follow-up procedures under Subtitle A. Proceedings under either section are begun in the court of continuing jurisdiction.

The trial court’s judgment of dismissal stated that because grandfather was not a party to nor affected by the divorce decree, which named the mother as the child’s managing conservator, he could not move to modify it. The court relied on § 14.08(a) which states that “A court order or the portion of a decree that provides for . the appointment of a conservator . may be modified only by the filing of a motion in the court having jurisdiction of the suit affecting the parent-child relationship. Any party affected by the order or the portion of the decree to be modified may file the motion.” (Emphasis added.)

The judgment further provided that grandfather could avoid dismissal of his suit if he would file an amended petition to be appointed managing conservator which satisfied the requirements of the Family Code. Mother argues in her brief that all grandfather had to do to avoid dismissal was replead under § 11.08. Her argument misses the point. All petitions brought under Subtitle A must include the information required by § 11.08. An examination of grandfather’s petition shows it did contain all of the necessary elements except his age and an express reference to the statutory grounds for the request. While it does not specifically name the section, it makes the necessary allegations for seeking a change of conservatorship under § 14.08(c)(1). The mother filed no exception to this formal defect in pleading and therefor has waived her right to rely on it to support the judgment.

Since the court decided grandfather lacked standing to file a motion to modify under § 14.08(a), grandfather would have to use a petition for further remedy under § 11.07(b). We do not agree that under these facts grandfather must file a petition for further remedy. However, even if we did, his petition would have to contain the same things under § 11.08. Under either section he must file in the court of continuing jurisdiction under the same docket number. His burden of proof would be the same. He must prove a change of circumstances of the child or parent so material and substantial that continued retention of the present managing conservator would be injurious to the welfare of the child and that appointment of the new managing conservator would be a positive improvement for the child. O. v. P., 560 S.W.2d 122 (Tex.Civ.App.—Fort Worth 1977, no writ); § 14.08(c)(1).

In this case the effect of proceeding under either section would be a modification of the prior order. However, a reading of the relevant statutes show the legislature clearly intended to set motions to modify apart from requests for further action. The wording of both sections is very clear. In providing for requests for further action, § 11.07(b) plainly excepts motions to modify from its terms. It is equally clear in § 14.08(a) that an order of conservatorship can be modified “only by the filing of a motion” in the court of continuing jurisdiction.

Public policy demands a high degree of stability in child custody arrangements. The legislature responded to this need by enacting § 14.08(c)(1) which specifically sets forth the legal standards which must be met by a party seeking to change custody. This policy is the reason a person seeking to modify a decree appointing a conservator cannot file a request for further action. Therefore, we hold that the legislature has provided that a motion to modify under § 14.08 is the exclusive method for seeking change in conservators.

The next question which arises is whether grandfather is a person who can move to modify an order appointing a managing conservator under § 14.08(a). The relevant portion reads “Any party affected by the order or the portion of the decree to be modified may file the motion.” It is of course clear any person mentioned in the previous decree in the context of conserva-torship is a “party affected.” Other sections of the code indicate a liberal attitude toward granting access to the courts to any person with an interest in the child. (§ 11.03.) Under § 14.01 any suitable, competent adult may be appointed managing conservator. The legislature clearly felt grandparents were persons with an interest in the child because it specifically allowed them to be given reasonable access rights to their grandchildren under § 14.03(d). They have been considered by courts to be suitable, competent adults and have been appointed managing conservators. Bush v. Cooley, 561 S.W.2d 606 (Tex.Civ.App.—Waco 1978, writ dism’d w. o. j.).

The legislative intent shown throughout Title 2, Parent and Child, of the Family Code was to afford broad protection to minor children in the courts. To do so it provided a broad category of those who could bring a suit for appointment as a managing conservator and an equally broad category of individuals who were qualified to serve as managing conservators. To limit the individuals who can bring a motion to modify an order appointing a conservator to parties to the original decree would defeat the legislative intent. Such a restrictive interpretation would mean here the only person who could attempt to change the appointment of the mother as conservator would be the father, whose whereabouts are unknown. Regardless of the child’s needs, the situation would have to deteriorate to the point that there would be grounds for an involuntary termination of parental rights before any other parties could act. The best interest of the child is paramount, therefore rules of pleading and practice need not be strictly followed in cases affecting the parent-child relationship. Brown v. Brown, 521 S.W.2d 730 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ).

As the legislature provided only one method for seeking a change in a decree appointing a managing conservator and because grandfather has sufficient interest in his grandchild, we hold he is a “party affected” by the order sought to be modified and may file a motion to do so under § 14.08(a). To hold otherwise would be to elevate form over function.

Mother argues that because grandfather has filed a new suit, this appeal should be dismissed and not be remanded for reinstatement and trial. We have no record of the contents of the petition in that suit and reject her contention. It appears the correct procedure upon remand would either be a consolidation of the second action with the remanded case or such other action as would afford proper trial.

Judgment of dismissal is reversed and the cause is remanded to be reinstated for a trial on the merits.


author: McCLOUD, Chief Justice.

text:
    BERMAN, FICHTNER & MITCHELL, INC. a professional corporation, Appellant, v. Charles KAHN, Appellee.
    No. 5196.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 2, 1978.
    Gary B. Hall, Dallas, for appellant.
    Ronald A. Dubner, Dubner, Weinstein & Bell, Dallas, for appellee.
   McCLOUD, Chief Justice.

Plaintiff, Berman, Fichtner & Mitchell, Inc., a professional corporation, sued defendant, Charles Kahn, for attorney’s fees. The trial court, in a nonjury trial, held that by the execution of an agreement and assignment, the defendant discharged his obligation to plaintiff. Plaintiff appeals. We affirm.

Plaintiff had represented defendant over a period of years in connection with several legal matters. Plaintiff prepared an instrument entitled, “AGREEMENT AND ASSIGNMENT OF AN INTEREST IN COLLATERAL AND PROCEEDS,” which was signed by Harry Thaten, Great American Insurance Company, defendant and plaintiff. Prior to execution of the agreement, Thaten and defendant had conveyed certain real property to Ray Williamson who had executed and delivered to Thaten and defendant his vendor’s lien note. Defendant, Thaten, and Great American Insurance Company were involved in litigation. The instrument in question was executed by the parties in settlement of the controversy, and it provided in part:

Whereas, Berman represented Kahn in all matters in connection herewith, and Kahn desires to discharge his obligation to Berman, for professional fees in this matter and past matters by the assignment herein;
NOW, THEREFORE, in consideration of the abovementioned covenants previously undertaken, Thaten, Kahn, Berman, and Great American AGREE AS FOLLOWS:
3. Subject to the assignment to Great American as security for his obligations, as set out in Paragraphs 1 and 2 hereof, Kahn does hereby assign to Berman a one-third (Vs) interest of Kahn’s interest in the Williamson Note, the liens on properties securing the same, and all proceeds therefrom, and does hereby agree that all net proceeds of said Williamson Note to which Kahn may be entitled shall be divided between Kahn and Berman, with Kahn receiving two-thirds (⅜) thereof and Berman receiving one-third (V3) thereof. If there shall be a default in the payment of the Williamson Note, either Kahn or Berman shall be entitled to exercise its rights to foreclose its liens upon the security for said note, and any interest in said security to which Kahn shall be entitled by reason of said foreclosure shall be divided between Kahn and Berman, with Berman receiving a one-third (⅛) undivided interest therein. (Emphasis added)

Williamson did not pay the note when it became due.

The trial court held that the instrument was unambiguous and refused to permit plaintiff to show by parol evidence that the assignment was only intended to serve as security or collateral until the attorney’s fees were paid. We agree with the finding of the trial court that the instrument is not vague, indefinite or ambiguous. In the absence of fraud, accident, or mutual mistake, parol evidence is inadmissible to contradict the terms of a written instrument that on its face is complete and unambiguous. Rapid Transit Ry. Co. v. Smith, 86 S.W. 322 (Tex.1905). As a general rule, in construing an unambiguous contract, the courts will determine the intent of the parties as expressed in the contract. In the usual case, the instrument alone will be deemed to express the intention of the parties for it is the objective, not subjective, intent that controls. Ohio Oil Company v. Smith, 365 S.W.2d 621 (Tex.1963); Republic National Life Insurance Company v. Spillars, 368 S.W.2d 92 (Tex.1963); Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951).

It is clear f ’om the agreement that the “assignment” to plaintiff of an interest in the Williamson note discharged the obligation owed by defendant to plaintiff, without regard to whether plaintiff ever collected from Williamson. Lindberg v. Ferguson Trucking Co., 74 N.M. 246, 392 P.2d 586 (1964), cited by plaintiff, is distinguishable. The assignment in that case merely authorized an auctioneer to pay a certain amount to the creditor from the first monies made available as a result of a sale, and expressly provided that payment of such amount discharged an obligation. There is no reason why parties may not enter into an agreement whereby the creditor accepts from his debtor the note of a third party with the understanding that the acceptance (not payment) of the note shall be in satisfaction of the debtor’s debt. Ralston v. Aultman, Miller & Co., 26 S.W. 746 (Tex.Civ.App.—1894, no writ); Sustala v. North Side Ready-Mix Concrete Company, 317 S.W.2d 64 (Tex.Civ.App.—Houston 1958, no writ).

We do not agree with plaintiff’s argument that an assignee may always show by parol evidence that an assignment, absolute on its face, was intended only as security for a debt. While Hillcrest State Bank v. Bankers Leasing Corporation, 544 S.W.2d 727 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.) contains language indicating that to be the rule, a close reading of the case shows that the court applied the rule that where more than one instrument is involved in the transaction, the court will consider all the instruments in determining the agreement of the parties. Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803 (1951); B & B Pharmacy and Drug, Inc. v. Lake Air National Bank, 449 S.W.2d 340 (Tex.Civ.App.—Waco 1969, writ dism’d). The court in Hillcrest State Bank cited Kaufman v. Blackman, 239 S.W.2d 422 (Tex.Civ.App.—Dallas 1951, writ ref’d n. r. e.), which cited two early Texas Supreme Court cases, Cawthorn v. Perry, 76 Tex. 383, 13 S.W. 268 (1890), and Lewy v. Gillard, 76 Tex. 400, 13 S.W. 304 (1890). Kaufman, Cawthorn and Lewy dealt with the assignment of an insurance policy by the insured. The cases were essentially concerned with public policy, insurable interest, and statutes relating to assignment of insurance policies. We do not consider the cases controlling.

We also note that the exception to the parol evidence rule which permits the grantor of a deed, absolute on its face, to show that it was intended only as a mortgage, originated as a purely equitable doctrine in order to give effect to the equity of redemption. Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972 (1949). That rule does not aid the assignee of the note in the instant case.

The agreement in the instant case unmistakably provides that the “assignment” by defendant to plaintiff of an interest in the Williamson note discharges defendant’s debt to plaintiff for attorney’s fees. The court correctly excluded the pa-rol evidence tendered by plaintiff.

Judgment of the trial court is affirmed.


text:
    ALLIED ARTISTS PICTURES CORP. et al., Appellants, v. TRANSCONTINENTAL THEATRES, TEXAS, INC., Appellee.
    No. 5202.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 2, 1978.
    Rehearing Denied Nov. 30, 1978.

      John L. Hauer and F. Bart Wulff, Akin, Gump, Hauer & Feld, Dallas, for appellants.
    George G. Potts, Claude R. Wilson, Jr. and H. David Herndon, Golden, Potts, Boeckman & Wilson, Dallas, for appellee.
   McCLOUD, Chief Justice.

The question presented is whether the venue provision of Article 179b, Tex.Rev. Civ.Stat.Ann., is permissive or mandatory.

Plaintiffs, Allied Artists Pictures Corp., American International Pictures, Inc., Avco Embassy Pictures Corp., Buena Vista Distribution Co., Inc., Columbia Pictures Industries, Inc., Paramount Pictures Corp., Twentieth Century-Fox Film Corp., United Artists Corp., Universal Film Exchanges, Inc., and Warner Bros. Distributing Corporation, sued defendant, Transcontinental Theaters, Texas, Inc., in Dallas County, alleging defendant owed plaintiffs certain sums pursuant to license agreements entered into by the parties in connection with the exhibiting of various films by defendant. Plaintiffs were distributors of certain motion picture films which were shown at defendant’s theater in Harris County. Defendant filed a plea of privilege asserting that under Article 179b, Tex.Rev.Civ.Stat.Ann., venue of the suit was in Harris County. The trial court granted defendant’s plea of privilege. Plaintiffs have appealed. We affirm.

The facts are undisputed. The suit involves motion picture film license agreements. The films were shown in Harris County, and defendant’s principal office is in Harris County.

Article 179b provides:

Section 1. From and after the effective date of this Act, every contract or agreement relating to distribution of films or licensing of motion pictures or films which are shown in any theater in the State of Texas shall be construed in accordance with the laws of this State. Sec. 2. Venue of suits arising out of such license agreements shall be in the county where such film was licensed to be shown or in the county where the principal office of the exhibitor under such license agreement is located. Any provision of such agreement attempting to fix venue elsewhere shall be void. (Emphasis added)

Subdivision 30 of Article 1995, Tex.Rev.Civ. Stat.Ann., provides:

30. Special venue — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.

Plaintiff argues that the venue provision of Article 179b is merely permissive, and since they established venue under Subdivisions 5 and 23 of Article 1995, Tex.Rev.Civ. Stat.Ann., the order of the trial court should be reversed. We disagree. The venue provision of Article 179b is clearly mandatory. The statute provides that venue of suits arising out of license agreements “shall be” in the county where the film was licensed to be shown or in the county where the principal office of the exhibitor is located. The language is similar to that found in Section B of Article 7425b--24, which provides:

B. In cases where there be a single trustee, the venue of such actions shall be in the county of the residence of such trustee; . . . (Emphasis added)

The words “shall be” usually create a mandatory venue provision. Bergfeld v. Campbell, 367 S.W.2d 364 (Tex.Civ.App.—Texarkana 1963, no writ); Cogdell v. Fort Worth National Bank, 536 S.W.2d 257 (Tex.Civ.App.—Eastland 1976, writ dism’d); Cogdell v. Fort Worth National Bank, 537 S.W.2d 304 (Tex.Civ.App.—Fort Worth 1976, writ dism’d); Cole v. Western Brick & Supply Company, 364 S.W.2d 761 (Tex.Civ.App.—Amarillo 1963, writ dism’d); Henson v. Brown, 524 S.W.2d 412 (Tex.Civ.App.—Austin 1975, no writ).

Article 179b is recognized in 1 McDonald, Texas Civil Practice § 4.11.1 (1965) as a special venue statute. The author states:

By legislation, one class of written contracts has been excluded from exception 5: contracts or agreements relating to the distribution of films or licensing of motion pictures or films which are shown in any theatre in the State.

Langdeau v. Burke Investment Company, 163 Tex. 526, 358 S.W.2d 553 (1962), and Mutual Fire & Automobile Ins. Co. v. Kirkman, 231 S.W.2d 459 (Tex.Civ.App.—Eastland 1950, no writ) cited by plaintiffs are distinguishable. In each case, the venue provision under consideration was clearly permissive.

We hold that See. 2 of Article 179b is a special venue statute and the venue provision contained therein is mandatory. Judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    A. Donald DAVIES, Bishop of the Episcopal Diocese of Dallas, Appellant, v. Milton MEYER, County Judge, et al., Appellees.
    No. 18017.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 2, 1978.
    Rehearing Denied Dec. 7, 1978.
    Golden, Potts, Boeckman & Wilson and J. Katherine Swisher, Dallas, for appellant.
    McCreary & Huey and Robert M. Huey, Austin, for appellees.
   OPINION

SPURLOCK, Justice.

This is a suit in which A. Donald Davies, Bishop of the Episcopal Diocese of Dallas, is seeking declaratory relief. He requested the court to declare a church camp ground as being exempt from ad valorem taxation as land used in the religious, educational and physical development of boys and girls under Article 7150-2a. The Bishop holds legal title to the land. The trial court rendered judgment that such property is not so exempt. The Bishop appealed.

We affirm.

This is the second action for declaratory judgment filed by the Bishop of the Episcopal Diocese of Dallas seeking to have some land owned by him (as Bishop) and used as a church camp exempt from ad valorem taxation. In the first action, the Bishop claimed the land was exempt as an actual place of worship under Article 7150-1(a). In Davies v. Meyer, 528 S.W.2d 864, (Tex.Civ.App.—Fort Worth 1975), aff’d. 541 S.W.2d 827 (Tex.1976), the Texas supreme court affirming this court, held the land was not exempt under that provision except for one acre for the minister’s house and one acre for an open air chapel. The supreme court expressly left undecided whether the land is exempt under Article 7150-2a now claimed by the Bishop. Article 7150-2a provides in part as follows:

“Religious, educational and physical development associations. — That all property owned or used exclusively and reasonably necessary, in conducting any association engaged in the joint and threefold religious, educational and physical development of boys and girls, young men and young women, operating under a State of National Organization of like character, and not leased or otherwise used with a view to profit other than for the purpose of maintaining the buildings and Association, . . . .” (Emphasis ours.)

The case was tried without a jury. From the record it appears that the only evidence offered was the testimony of the Bishop and his camp director. The trial court rendered judgment that the camp was not exempt except to the extent found by the supreme court. The trial court made findings of fact and conclusions of law. The findings of fact which support the conclusions of law that the camp is not exempt are as follows:

“(5) The camp is used for camp purposes for sixty days during the summer and it has been used during other times in the year by the Clergy Conference of the Diocese of Dallas, Parish Vestries, the Granbury Optimist Club, the Granbury Square Dance Club, the National Organization of Women, the Fort Worth League of Women Voters and the Distributive Education Class from Granbury High School.
“(8) There is no program at Camp Crucis which results in the strengthening of muscles or the building of the body. “(11) In a six day period a child may get to play softball one afternoon.
“(12) The primary purpose of Camp Cru-cis is to create a religious atmosphere for children. The owner of the property, A. Donald Davies, Bishop of the Episcopal Diocese of Dallas, is ‘not concerned about building muscles as that is not the Church’s business unless it is spiritual muscles’.
“(13) There is nothing in the organization papers of the Episcopal Diocese of North Texas which states that it is formed for the purpose of religious, educational and physical development of boys and girls, young men and young women.
“(16) While the Camp is used for recreational purposes, there is no physical development program within the common definition of such term.”

Based on these findings of fact the trial court made conclusions of law as follows:

“(1) Camp Crucis is not exclusively used for religious, educational and physical development of boys and girls, young men and young women.
“(2) Camp Crucis is not engaged in the joint and three-fold (sic) religious, educational and physical development of boys and girls, young men and young women, nor is it operating under a state or a national organization of like character. “(3) Camp Crucis is not exempt from ad valorem taxation under the provisions of Article 7150, 2a, V.A.T.S.
“(4) Recreational activities at Camp Cru-cis do not constitute physical development.”

The Bishop asserts only one point of error in complaint of the court’s judgment:

“The trial court erred in failing to hold that Camp Crucis is a camp engaged in the joint and three-fold (sic) religious, educational and physical development of boys and girls, young men and young women and therefore exempt from ad valorem taxation under Article 7150-2a.”

This point of error does not attack any of the findings of fact in the case. It is well settled that where findings of fact are not attacked by proper points of error, a reviewing court is bound by the facts as found. Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ.App.—Houston [1st Dist.] 1967, no writ). Therefore, the Bishop’s lone point of error raises the sole question of whether the facts as found require, as a matter of law, the conclusion that the entire camp is exempt from taxation under Article 7150-2a. We hold that it is not exempt in view of the unchallenged findings of fact.

Since we are bound by facts that do not compel as a matter of law, nor even support, the conclusions needed for the exemption, we have no choice but to affirm the judgment of the trial court.

We affirm the judgment.

       All references to statutes are to Tex.Rev.Civ. Stat.Ann.


author: MASSEY, Chief Justice.

text:
    Roy C. HARRIS, Individually and as Independent Executor of Estate of Mary E. Harris, Deceased, Appellant, v. Noel COWARD d/b/a Coward Funeral Home et al., Appellees.
    No. 18019.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 2, 1978.
    Rehearing Denied Dec. 7, 1978.
    Marc Morrison, Wichita Falls, Ater & Hirsch and Kevin R. Bartley, Odessa, for appellant.

      Simon, Peebles, Haskell, Gardner & Betty and Anne Gardner, Fort Worth, for appel-lee Noel Coward d/b/a Coward Funeral Home.
    Touchstone, Bernays & Johnston and Trey Dowdy, Dallas, for appellees Henry F. Reeves and Robin Reeves.
   OPINION

MASSEY, Chief Justice.

The appeal is by plaintiffs below from a take nothing judgment rendered in behalf of defendants Coward and Reeves in plaintiffs’ suit for damages for personal injuries flowing from vehicular collision. Plaintiffs/appellants will hereinafter be treated in the singular, or as merely “Harris”.

We affirm the judgment.

Because of an antecedent collision on April 13, 1975, Mary E. Harris, wife of plaintiff Roy C. Harris, sustained injuries necessitating her transport by ambulance from the scene to a hospital. The ambulance providing transport (of both Mr. and Mrs. Harris) belonged to the Coward Funeral Home, the driver being Thomas Clark, an employee. Clark was not made a party to the suit.

During the course of transport of Mrs. Harris (now deceased), there was a second collision involving the ambulance and a private passenger automobile driven by Mrs. Robin Reeves, accompanied at the time by her husband Henry. Both these vehicles were being driven in a northwesterly direction on U. S. Highway No. 287 from Mansfield toward Fort Worth. The time of day was early afternoon. It was raining sufficiently to require a motorist’s use of his windshield-wipers. The surface of the roadway was wet.

By the evidence the jury was entitled to believe, and obviously did believe, the collision between the ambulance and the Reeves vehicle took place in the following manner: both the automobile driven by Mrs. Reeves and the ambulance were proceeding in a northwesterly direction; Mrs. Reeves knew the ambulance was approaching from the rear, and in obedience to her duty to yield to it immediately drove to a position parallel to, and as close as possible to, the paved right hand edge of the roadway (in this case a paved shoulder), with the intention of slowing or even stopping. She applied her brakes after she was on the highway shoulder and her automobile went into a skid which resulted in movement by the front of the automobile to the left and onto the main-traveled traffic lane in which the ambulance was approaching; this occurred when the ambulance was in the act of passing the Reeves’ automobile; and the right front of the ambulance struck the left side of the automobile at a point near the left front wheel. As a result Harris was injured and his wife sustained additional injuries.

At least as applied to the driver of the ambulance the issue of sudden emergency was presented by the circumstances. By the court’s charge to the jury the fact was recognized for the definitions of the charge included one bearing thereupon. The only objection to the charge was by Harris’ counsel, the objection being to the inclusion of any definition of emergency.

We mention, but discuss later, the issues in answer to which the jury refused to find as Harris desired. The first of these (special issue no. 1), inquired whether the jury found the ambulance driver to have been negligent in one or more of the following respects: in the speed he was operating his vehicle, in his failure to apply brakes, in regard to lookout, and/or in the direction of travel. The second of these (special issue no. 3), inquired whether Mrs. Reeves was negligent in any one or more of the following respects: in the manner of the application of her brakes, or in the control she exercised over her automobile.

The jury answered both these issues in the negative, or “we do not”, thus refusing to find any negligence on the part of the ambulance driver or Mrs. Reeves.

Harris’ points of error 1 through 5 are those complaining of the inclusion in the charge the definition of sudden emergency. All of these are overruled as waived; complaints by the points are not supported by the objection made to the charge that there was “no evidence”, and they have no relation to that objection.

By Yarborough v. Berner, 467 S.W.2d 188 (Tex.1971), when the element of sudden emergency is invoked and there is some evidence of such, (for example, some evidence that the party was confronted with a sudden and unexpected condition without time for deliberation), there is entitlement to have it submitted. Of course, as a corollary, the opposite party would have no right to have sustained his contention that it should not have been submitted. Furthermore, by the Supreme Court opinion, there should not be any separate submission of the sudden emergency issues according to the former practice because the office of the doctrine will be better served by explanatory charges or definitions. Since the opinion the Texas practice has been to handle the submission by explanatory charge or definition.

The result has been to trust jurors to understand and obey proper definitions and instructions upon sudden emergency, i. e., in the consideration of acts or omissions as negligent or not, to segregate the same as those to be considered existent before or in the absence of any emergency from those to be considered as acts or omissions in the apprehension of peril upon the condition of emergency having arisen, and to make the proper decision in finding negligence or absence of negligence according to the appropriate standard.

In the instant case the definition of emergency was that suggested by Texas Pattern Jury Charges, § 3.07, Vol. 1, which has been specifically approved in the case of McDonald Trans., Inc., v. Moore, 565 S.W.2d 43 (Tex.1978), viz:

When a person is confronted by an emergency arising suddenly and unexpectedly, not proximately caused by any negligence on such person’s part, and which to a reasonable person requires immediate action without time for deliberation, such person’s conduct in such emergency is not negligence or a failure to use ordinary care, if, after such emergency arises, such person acts as a person of ordinary prudence would have acted under the same or similar circumstances.

The objection to the court’s charge read as follows:

Plaintiffs hereby object to the inclusion in the Court’s Charge of the definition of “sudden emergency” for the reason that there is no evidence to support said definition, or in the alternative, that there is insufficient evidence to submit it in the Court’s Charge.

By Yarborough v. Berner, supra, if there is some evidence that a condition of emergency has arisen there would be the entitlement by a proper party to have it submitted. Thus the contention by objection that there was insufficient evidence to submit the instruction could have no value. The objection is proper to be considered only upon a contention that there was “no evidence” to support the submission of the instruction.

Apparently Harris overlooked the fact that the Reeves, but not the Coward Funeral Home, had invoked the emergency doctrine by pleading. This is of no consequence on the appeal. Harris’ objection did not in any way relate to the condition of the pleadings, but had reference only to the state of the evidence. By the evidence we are of the opinion that, without regard to a question of whether there was anything done or left undone which proximately caused the condition to be brought about, there was evidence that the driver of the ambulance of the Coward Funeral Home was confronted with a sudden emergency immediately prior to the collision. That condition of emergency was resultant upon the left-side front of the Reeves skidding automobile moving over in front of the ambulance in the lane for traffic on which it was being driven. Contrarily, by the evidence, we are of the opinion that the doctrine would not have application to Mrs. Reeves. None of the negligence charged against her by Harris would have constituted any act or omission on her part after the condition of emergency had arisen. The nature of her act in the application of brakes could have caused or resulted in the emergency' which confronted the driver of the ambulance, but it would in our opinion be improper for the jury to have considered it as action to be judged as negligent or non-negligent under emergency conditions. If we are correct the jury would, necessarily, be deemed to have considered it in a proper manner and in accord with the court’s instruction, by authority of Yarborough v. Berner, supra.

Harris’ points of error 6 and 7 contend that the answers returned by the jury to special issue no. 1 and special issue no. 3 were against the great weight and preponderance of the evidence. We have examined the entire record and find the jury’s answers not to be subject to the complaint.

Harris’ obvious theory is that one or the other, or both, of the defendants were bound to have either negligently acted or failed to act, that as a result thereof the collision occurred; and that therefore one or the other, or both, of the defendants were liable in damages for the injuries caused by the collision. Harris errs in this conclusion. It is well settled that there may be an unavoidable accident. Further, even where there might be negligence on the part of a defendant amounting to a proximate cause of a collision, it must be of a character which is submitted to and found by the jury in accord with a plaintiff’s contention in order to support a judgment for him. If such negligence exists but is not plead, proved, or submitted to the jury, it is treated in law as waived as a ground upon which any recovery might be founded.

Judgment is affirmed.


author: OSBORN, Justice. PRESLAR, Chief Justice, OSBORN, Justice.

text:
    Dana B. BROWNLEE, Appellant, v. Wilbur H. BROWNLEE, Appellee.
    No. 6779.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 8, 1978.
    Rehearing Denied Nov. 29, 1978.

      Dick Stengel, El Paso, for appellant.
    Stewart W. Forbes, El Paso, for appellee.
   OPINION

OSBORN, Justice.

The Appellant appeals from a judgment in a divorce case which made no disposition of military retirement and disability benefits earned by the Appellee who retired after twenty-one years of military service. We affirm in part and in part reverse and remand.

The Appellant presents one point of error contending the trial Court erred in not disposing of all community property, even though the Court was aware that the military retirement and disability benefits of Appellee were subject to division.

These parties were married on October 31,1945, separated October 1,1977, and were divorced on April 26, 1978. All property acquired during this period of time is presumptively community property. The Appellee spent twenty-one years in the Air Force and received an honorable discharge. He testified he receives $1,100.00 per month from the Veteran’s Administration and the Social Security Administration for a disability rating.

Where the service man has not served in the military long enough to earn retirement benefits, payments received for service-connected disability are separate property. Ramsey v. Ramsey, 474 S.W.2d 939 (Tex.Civ.App.—Eastland 1971, writ dism’d w.o.j.). But in Busby v. Busby, 457 S.W.2d 551 (Tex.1970), the Court characterized “disability retirement” as community property. In that case, the husband had completed twenty years of service in the Air Force and thus became eligible for voluntary retirement. He was subsequently ordered retired on account of a diabetic condition and a thyroid deficiency and received disability retirement pay. In a partition suit filed four years after the divorce, the wife was awarded one-half of this disability retirement pay because it was found to be a community asset undivided at the time of the divorce. To the same effect, see Simmons v. Simmons, 568 S.W.2d 169 (Tex.Civ.App.—Dallas 1978, writ pending).

In the divorce entered in this case, the trial Court did not make any mention of this disability retirement, and it remains an undivided community property asset. Thus, it is necessary to remand the case to the trial Court for a fair and equitable division of this community asset. In reaching this decision, we will again note the request of our highest Court for both bench and bar to inquire as to retirement programs and fully dispose of all assets in all divorce cases. See Busby v. Busby, supra at 555; and Cearley v. Cearley, 544 S.W.2d 661 at 666 (Tex.1976). In this case, trial counsel for Appellant directed eighteen pages consisting of 168 interrogatories to the Appellee, not a single one of which inquired about retirement benefits. The record on appeal consists of seventy-six pages, many of which relate to attorney’s fees, and yet all of the testimony about retirement benefits could be put on one page. There is no proof as to the number of years Appellee served in the Air Force while married to the Appellant, although this is an essential element to a determination as to the division to be made of military retirement benefits. See Cearley v. Cearley, supra; Schappell v. Schappell, 544 S.W.2d 807 (Tex.Civ.App.—El Paso 1976, no writ).

The judgment of the trial Court granting a decree of divorce is affirmed. In the interest of justice, that part of the judgment dividing the community property, ordering payment of debts, and providing for attorney’s fees is reversed and remanded so that all community assets may be considered by the trial Court in making a fair and equitable division of the community property.

PRESLAR, Chief Justice,

dissenting.

I respectfully dissent and would affirm the judgment.

Where the service man has not served in the military long enough to earn retirement benefits, payments received for service-connected disability are separate property. Ramsey v. Ramsey, supra. There is no complaint concerning the division of the community property and no contention that it was necessary for the trial Court to invade Appellee’s separate personal property in order to make a fair and equitable division of the community assets. Thus, there is no error in the judgment of the trial Court.

ON MOTION FOR REHEARING

OSBORN, Justice.

The Appellee urges in his motion for rehearing that we have placed an undue burden on him in a case in which Appellant made no effort to establish those facts necessary for her to be awarded an interest in his disability retirement benefits. As noted in the original opinion, all property acquired during the parties’ thirty-seven years of marriage is presumptively community property. If some of those benefits were earned prior or subsequent to this marriage, it was incumbent upon him to establish those facts. If those benefits were not “disability retirement” and subject to a just and equitable division as community property, it was incumbent upon him to show why not. There being no showing as to why those benefits should not have been divided as a part of the community property, and the trial Court’s judgment having failed to make any disposition of those benefits, we felt compelled to reverse and require a division of those benefits in this case under the directions of the Supreme Court in the Busby and Cearley cases. Otherwise, the matter will have to be litigated in a new suit seeking a partition of those benefits as was done in Busby.

The motion for rehearing is overruled.

PRESLAR, C. J., dissenting.


author: KEITH, Justice.

text:
    Louie P. BRADSHAW, Appellant, v. LOWER COLORADO RIVER AUTHORITY, Appellee.
    No. 8131.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 9, 1978.

      Harold G. Kennedy, Austin, for appellant.
    L. C. Meyer, Austin, for appellee.
   KEITH, Justice.

Defendant below appeals from an adverse judgment in a suit for declaratory judgment and incidental injunctive relief.

On November 14, 1938, O. S. Bradshaw, his wife, Ollie Bradshaw, and Mary Jane Kennedy granted to the Lower Colorado River Authority (LCRA) an inundation easement up to the 670-foot above mean sea level contour line on a 212-acre tract out of the Fedile Seaholzer Survey No. 18 in Bur-net County, Texas. LCRA needed this property to build the Marshall Ford Dam to a level of 670 feet. On May 26, 1942, O. S. Bradshaw and Ollie Bradshaw granted to LCRA an inundation easement up to the 715-foot contour line on the 212-acre tract when LCRA decided to raise the dam’s elevation to 715 feet.

In return for the second easement plus the payment of $950, LCRA conveyed to the Bradshaws by deed dated December 20, 1941, a 94.41-acre tract, adjoining their 212 acres, out of the Allison Williams Survey No. 19 and the Fedile Seaholzer Survey No. 18.

When Congress appropriated the money to raise the elevation of the Marshall Ford Dam, it added a proviso that the land from approximately the 681-foot contour line to the 715-foot line would be reserved for flood storage for the prevention of downstream flooding. Therefore, there was a strip of land between the 94.41 acres and the Marshall Ford Reservoir. The 1941 deed contained a provision concerning that strip of land:

“It is agreed and understood by the parties hereto that the Lower Colorado River Authority, its successors and assigns have and retain the full title and interest in and to the land lying below the 715' contour line which lies between the land described above as being conveyed hereby and the Colorado River, and the right of the Lower Colorado River Authority, its successors and assigns to use said land so retained by it for any purpose that it may see fit is hereby expressly recognized, and, subject to said rights and privileges on the part of the Lower Colorado River Authority and its successors and assigns, the grantees herein are hereby given the right of ingress and egress across said land so retained by grantor so that grantees may reach the water’s edge of the Marshall Ford Reservoir, and grantees are hereby given the right to maintain outside fences on said land to the water’s edge, but the Lower Colorado River Authority and its successors and assigns shall have the right at any time it sees fit to place gates or cattle guards in said fences at any place that it desires and to use the same for the purpose of using the land retained by it

For several years, the Bradshaws, and later the defendant who is their son and successor in title, operated a ranch with livestock on the 94.41-acre tract and allowed other families to come on the property, for a fee, for camping, boating, fishing, and other recreational purposes. These families were allowed to select their own campsite and place a trailer, mobile home, or other temporary shelter on their campsite. Some of these campsites were located between the 94.41-acre tract and the Marshall Ford Reservoir below the 715-foot contour line. LCRA discovered these campsites in 1973.

LCRA filed suit for declaratory judgment to determine its rights under the 1941 deed with respect to the land between the 94.41 acres and the reservoir. Defendant filed a counterclaim for declaratory judgment to determine his rights to the 212 and 94.41-acre tracts.

The trial court rendered a judgment in favor of LCRA and a take nothing judgment for defendant in his counterclaim and specifically found that defendant has no other property rights in the land below the 715-foot contour line other than to use it “to gain reasonable access for its [his] grazing livestock and to maintain outside boundary fences for the containment of such livestock.”

Defendant appeals, seeking relief from the trial court’s limited construction of the right of ingress and egress conferred by the deed and from the trial court’s refusal to grant him declaratory relief.

In his first point of error, defendant complains that the trial court erred in concluding that he had no other property right other than to use the questioned land to gain reasonable access for his grazing livestock and to maintain outside boundary fences for the containment of such livestock. Before we discuss this first point, we must first determine the kind of right that was granted to the Bradshaws.

This court in Stuart v. Larrabee, 14 S.W.2d 316, 319 (Tex.Civ.App.—Beaumont 1929, writ ref’d), summarized the law on easements:

“A right of way is either in gross or appurtenant. The first is attached to and vests in the person to whom it is granted. The second is an incident to an estate, one terminus of which is the land or tenement of the party claiming it. It inheres in the land, concerns the premises, and pertains to its enjoyment and passes with it. . Easements in gross are not favored, and an easement will never be presumed to be a mere personal right when it can be fairly construed to be appurtenant to some other estate. Whether an easement is in gross or appurtenant must be determined by the fair interpretation of the grant or reservation creating the easement, aided, if necessary, by the situation of the property and the surrounding circumstances.”

When LCRA deeded the 94.41 acres of property to grantees, LCRA reserved the land below the 715-foot contour line between the tract and the reservoir for flood control purposes. The reservoir has fluctuating lake levels because of its being a flood control lake. Whenever the lake level gets above the flood line (681-691 feet), the flood gates are opened to lower the level. Consequently, there is always LCRA land between the 94.41-acre tract and the water’s edge.

In the 1941 deed, the grant clause provides in part that LCRA “does GRANT, SELL and CONVEY, subject to the conditions set out below, to the said O. S. Bradshaw and wife, Ollie Bradshaw, all that certain tract or parcel of land consisting of 94.41 acres . . . .” (emphasis added) The reservation clause, like the grant clause, specifies that “the grantees herein” are given the rights of ingress and egress and to maintain outside fences. Neither clause provides for grantees’ heirs or assigns. However, the habendum clause recognizes the rights of grantees’ heirs and assigns:

“TO HAVE AND TO HOLD the above described property, together with all and singular the rights and appurtenances thereunto in any wise belonging, subject to the conditions set out hereinabove, unto the said O. S. Bradshaw and wife, Ollie Bradshaw, their heirs and assigns forever . . . .” (emphasis added)

The habendum clause together with the fact that the reservoir could not be reached from the 94.41-acre tract without the ingress and egress easement, supports a construction of the easement provision to create an appurtenant easement.

LCRA contends that this easement is a defeasible one because the reservation clause recognized that LCRA, its successors and assigns could “use said land so retained by it for any purpose that it may see fit” and made the grantees’ easement “subject to said rights and privileges on the part of the Lower Colorado River Authority and its successors and assigns.”

The term “subject to” is a term of qualification, meaning “subordinate to,” “subservient to,” or “limited by.” Kokernot v. Caldwell, 231 S.W.2d 528, 531 (Tex.Civ.App.—Dallas 1950, writ ref’d), and cases cited therein, quoted in Cockrell v. Texas Gulf Sulphur Company, 157 Tex. 10, 299 S.W.2d 672 (1956), and Rourke v. Garza, 511 S.W.2d 331, 343 (Tex.Civ.App.—Houston [1st Dist.] 1974), affirmed, 530 S.W.2d 794 (Tex.1976). Therefore, we construe the above deed provisions to limit defendant’s easement. We do not construe them broadly enough to allow LCRA to arbitrarily divest defendant, his heirs or assigns of their easement rights at any time it so desires. Rather, we construe them to mean that the LCRA may restrict or prohibit the usage of the easement by defendant, his heirs or assigns in part or in whole whenever LCRA decides to use the property in a manner that is inconsistent with the easement.

The 1941 deed provides that the grantees were given “the right of ingress and egress across said land so retained by grantor so that grantees may reach the water’s edge of the Marshall Ford Reservoir” and “the right to maintain outside fences on said land to the water’s edge.” Defendant contends that the right of ingress and egress extended to the grantees as well as their livestock.

The construction of an unambiguous writing is a question of law. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex.1962); Wall v. Lower Colorado River Authority, 536 S.W.2d 688, 691 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.); Stitt v. Royal Park Fashions, Inc., 546 S.W.2d 924, 926 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). The courts will generally give effect to the parties’ intention as expressed by the writing because the objective intent of the parties controls. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968); Wall, supra, at 691; Stitt, supra, at 926.

In the case of Wall v. Lower Colorado River Authority, supra, the court was confronted with a deed provision similar to the one before us. The grantees were given “ ‘the right of ingress and egress across the land retained by grantor [the Lower Colorado River Authority] in said Clark Survey to the waters’ edge’ ” and “ ‘the right to maintain and control all outside fences in the said Clark Survey to the waters’ edge.’ ” The trial court interpreted the ingress and egress right as allowing the grantees’ livestock to have access to the water’s edge of Lake Travis. (536 S.W.2d 690) The Austin Court, in affirming the trial court’s judgment, recognized that the grantees were given the right of ingress and egress across the land to the edge of the water (Id. at 691), but it did not limit this right to livestock as the trial court had done.

We do not find the terms of the Bradshaws’ ingress and egress easement to be ambiguous. It is clear that they were granted the right of ingress and egress to reach the water’s edge. The deed does not specify that the right extended only to the watering of livestock. We believe the right should not be so narrowly construed, as there are other activities for which the grantees might want to use the public waters, i. e., boating, swimming, etc. Their right of ingress and egress should include being allowed to pass over the LCRA’s property to reach the water’s edge for these other activities. Therefore, we sustain defendant’s first point of error.

In his fourth point of error, defendant complains that the trial court erred in limiting his ingress and egress rights to “reasonable access.” We disagree.

In Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974), our Supreme Court stated:

“A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner.” (citations omitted)

See also Exxon Corp. v. Schutzmaier, 537 S.W.2d 282, 287 (Tex.Civ.App.—Beaumont 1976, no writ), and cases cited therein. We find no error in the trial court’s limitation of reasonableness and overrule defendant’s fourth point.

We have reviewed the remaining points in defendant’s brief and find no merit therein.

The judgment of the trial court is reformed to allow defendant to have reasonable ingress and egress rights across the land below the 715-foot contour line to reach the water’s edge rather than to allow him only reasonable access for his grazing livestock.

Judgment of the trial court REFORMED and, as reformed, it is AFFIRMED.


author: DIES, Chief Justice.

text:
    Donn GREINER, Appellant, v. Deborah ZINKER, Appellee.
    No. 8155.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 9, 1978.
    Rehearing Denied Dec. 7, 1978.

      Kelly O’Connor, San Antonio, for appellant.
    Michael Putman, San Antonio, for appel-lee.
   DIES, Chief Justice.

Deborah Zinker, plaintiff below, sued Donn Greiner, Roy Schneider and Richmond Victory, defendants below, for personal injuries received in a multi-vehicle collision on Interstate Highway 410 West in San Antonio. Both defendant Schneider and defendant Victory settled with the plaintiff prior to the time jury selection began. The jury was not advised of that settlement. Each defendant had brought a cross action against the others for contribution and indemnity. Defendant Greiner filed a motion to limit strikes, but the court nevertheless granted each defendant and the plaintiff six peremptory strikes.

After a jury verdict, judgment was given plaintiff against defendant Greiner; relief against defendants Victory and Schneider was denied, and all costs were taxed against Greiner. It is from this judgment Greiner perfects this appeal.

His first point complains of the court’s granting the two settling defendants and the plaintiff each six strikes. Tex.Rev.Civ.Stat.Ann. art. 2151a (Vernon Supp.1976) reads as follows:

“After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”

The term “each party” in the Rule (Tex.R. Civ.P. 233) means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. Retail Credit Co. v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.—Houston 1958, writ ref’d); Perkins v. Freeman, 518 S.W.2d 532, 533 (Tex.1954). The equalizing of the number of peremptory challenges is to be done “in accordance with the ends of justice so that no party is given an unequal advantage.” Perkins v. Freeman, supra at 534. See also Council v. Bankers Commercial Life Ins. Co., 558 S.W.2d 487 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.).

In the case at bar, plaintiff agreed to settle with defendants Schneider and Victory irrespective of the outcome of the trial; Victory to pay her $6,000, Schneider to pay $6,750. In return plaintiff agreed to settle her cause of action against Victory and Schneider but to continue her prosecution against Greiner. Plaintiff agreed to dismiss the suit against Victory and Schneider after the submission of the case to the jury but prior to the return by the jury of a verdict. Plaintiff further agreed to indemnify and hold harmless Victory, Schneider, and Allstate Insurance Co. in any suit for contribution or indemnification by Greiner or his successors in interest. We believe under these circumstances, the necessary “antagonism” was lacking, and it was error to accord Victory, Schneider, and the plaintiff eighteen strikes from a panel of about forty prospective jurors. We note that plaintiff and the settling defendants did not cross on any one of their eighteen strikes. Defendant Greiner’s (appellant’s) first point of error is sustained, and this cause is remanded to the trial court for a new trial. Costs are equally divided between plaintiff, defendant Victory, and defendant Schneider.

REVERSED and REMANDED.


text:
    Orville CLARK, Appellant, v. Joe S. COTTEN et al., Appellees.
    No. 8158.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 9, 1978.
    Rehearing Denied Dec. 7, 1978.

      Juan Velasquez, III, Victoria, for appellant.
    Ronald B. Brin, Corpus Christi, for appel-lees.
   DIES, Chief Justice.

Plaintiff below, Orville Clark, appeals from a take nothing judgment in a personal injury suit resulting from an automobile-truck collision. The defendants below were Cecil Earl Cotten, the driver of the pickup, and its owner, the driver’s father Joe S. Cotten. The father, Joe S. Cotten, was granted an instructed verdict, of which there is no complaint on appeal; so, the parties will be referred to herein as they were below, with Cecil Earl Cotten referred to as defendant.

During the trial, plaintiff attempted to introduce evidence from a State Trooper, which was excluded by the court, and which plaintiff has assigned as his first point of error.

The testimony as reflected by a bill of exception follows:

“Q. Officer Stehle, based on your experience as a state trooper, and based on your education and training in accident investigation, and based on the number of accidents that you have investigated, did you form an opinion as to the cause of this accident?
“A. Yes, sir. I felt that the pickup was driving at faster than conditions at this time would permit.”

In Texas, accident analysts and reconstruction experts can be qualified if they are highly trained in the science of which they testify. See Bolstad v. Engleson, 326 S.W.2d 506, 518 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.); Texaco, Inc. v. Romine, 536 S.W.2d 253 (Tex.Civ.App.—El Paso 1976, writ ref’d n. r. e.). See note 38 Tex. L. Rev. 503, 506 n. 14 (1960).

“As for regular police officers, sheriffs, mechanics, etc., it generally may be said that they lack such training and experience as would qualify them to make a scientific analysis from physical evidence, regardless of how many accident scenes one may have examined.”

See also East Texas Motor Freight Lines, Inc. v. Neal, 443 S.W.2d 318 (Tex.Civ.App.—Texarkana 1968, writ ref’d n. r. e.). The State Trooper involved here had been with the Department of Public Safety eight and one-half years, had received seventeen weeks of training, and had investigated 350 accidents.

It had been raining when the officer investigated the accident we review, and he saw “eraser marks” on the highway, indicating defendant’s westbound vehicle went into a skid — or hydroplane — after hitting a puddle of water, going into the eastbound lane, and striking plaintiff’s vehicle. The officer testified that his training was that a car could “hydroplane” at 56 m. p. h. when running through water.

We do not believe this testimony qualified the officer to opine the ultimate cause of this accident — the jury’s prerogative— and overrule this point.

Plaintiff’s Points 2 and 3 complain of the court submitting unavoidable accident and sudden emergency, because there was no evidence raising these issues.

We review these points under the instructions of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Defendant received a blow on the head and recalled almost nothing. Plaintiff likewise never saw defendant’s vehicle. Defendant’s brother, Kenneth Cotten, was riding in the cab of the pickup. It was about noon, and it had been raining. There was water on the highway and the shoulder. At Kenneth’s suggestion, defendant reduced his speed from 55 or 60 m. p. h. to 45 or 50 m. p. h. and pulled off the main traveled portion to the shoulder for reasons of safety. The pickup hit a water spot causing it to hydroplane into plaintiff’s vehicle.

An unavoidable accident is an event not proximately caused by the negligence of any party to it. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952). We believe the above summarized testimony raises this issue. See Salazar v. Hill, 551 S.W.2d 518, 520 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.), noting that a jury issue is raised if the evidence shows wet pavement and skidding.

A trial court is justified in submitting “sudden emergency” if the conditions or circumstances relied upon arise suddenly and unexpectedly, call for action leaving no time for deliberations, and were not brought about by the negligence of the party seeking to avail himself of the doctrine. Salazar v. Hill, supra; Deviney v. McLendon, 496 S.W.2d 161, 166 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.). These points are overruled.

In Points 4 and 6, plaintiff complains that the answers to S.I. 1(a) and (b) and S.I. 4 are against the great weight and preponderance of the evidence; and, in Points of error 5 and 7 that the evidence required affirmative answers to these issues as a matter of law.

In S.I. 1(a) and (b) the jury answered, “No” when asked if defendant was negligent as to speed or driving on the shoulder of the road, and in S.I. No. 4 that defendant’s failure to keep his vehicle on the right half of the roadway was not negligent.

In these points we are guided by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). All of the evidence pertaining to these points has been summarized in this opinion. We believe this evidence supports the jury findings challenged.

The mere fact a Court of Civil Appeals might have reached a different conclusion does not authorize us to substitute our judgment for the jury’s findings. Clodfelter v. Martin, 562 S.W.2d 491 (Tex.Civ.App.—Corpus Christi 1977, no writ). And, a jury’s failure to find facts of negligence vital to a plaintiff’s recovery need not be supported by affirmative evidence; that is, the defendant need not prove lack of negligence. Clodfelter v. Martin, supra at 493.

All of plaintiff’s (appellant’s) points of error are overruled, and the cause is affirmed.

AFFIRMED.