author: KELLY, Judge.

text:
    Gilbert DOLGIN, d/b/a, G. Dolgin Candy & Tobacco Company, Plaintiff-Appellant, v. POTTER ELECTRIC SIGNAL CO., a corporation, d/b/a Potter Electric Signal & Manufacturing Co., d/b/a Merchants Alarm Service, Defendant-Respondent.
    No. 36128.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 6, 1976.

      Dolgin, Juncker & Bielenson, Clayton, for plaintiff-appellant.
    Evans & Dixon, Eugene K. Buckley, St. Louis, for defendant-respondent.
   KELLY, Judge.

This appeal from a judgment of the Circuit Court of the City of St. Louis wherein the trial court sustained respondent’s motions for directed verdict on Counts I, III and IV of appellant’s Second Amended Petition and a jury found for the respondent on Count II of said Second Amended Petition, raises three grounds of alleged trial error which appellant contends entitle him to a reversal of the judgment and a remand to the trial court for a new trial. We have examined the three points and find them to be without merit. We therefore affirm.

Count I of appellant’s Second Amended Petition alleged that he entered into two written contracts with the respondent on July 8, 1963, and July 15, 1963, whereby respondent was to provide an electric burglar alarm system to appellant’s premises; that on November 23, 1967, the premises were burglarized and the burglar alarm system was unfit for the purpose for which it was intended in that it failed to notify the respondent that appellant’s premises were being burglarized; that by reason of the failure of the burglar alarm system the burglary of the premises went undetected so that merchandise, money and miscellaneous items were stolen from the appellant’s premises valued in an amount of $10,158.04. Count II alleged essentially the same allegations in Count I and further alleged that the failure of the burglar alarm system was due to the manner in which the system was installed by the respondent in that some of the electrical wiring was exposed so that it could be made inoperable by cutting of the exposed wiring. Count III was based upon fraud and alleged that respondent through its agents, intending to deceive appellant and induce him to purchase the particular burglar alarm system, made false and fraudulent representations that the alarm service and protective service could not be made inoperable by the breaking or cutting of any of the wires of the system and that once the alarm had commenced sounding, the total alarm system could not be stopped or made inoperable except by the use of a “shunt key” which would turn off the entire system, whereas in fact, the entire system could be and was rendered inoperative by the cutting of the exposed wires; that at the time of making these statements the respondent’s agents knew that the statements were false and that the appellant had a right to rely, and did rely, on these statements, was thereby induced to purchase, and did purchase the burglar alarm system, and was thereby damaged in an amount of $10,158.04 when his premises were burglarized and the alarm system did not function. Count IV realleged all of the allegations contained in Count III and sought punitive damages in an amount of $100,000.00 for the alleged fraud or the utter disregard of appellant’s rights. Respondent’s Answer in the trial court admitted that it entered into a written agreement with the appellant for the installation and maintenance of an electric alarm system in appellant’s premises and denied all other allegations of the Second Amended Petition other than those relative to the corporate existence of the parties and the nature of appellant’s business. In further answer, respondent alleged liquidated damages in an amount of $50.00 under the Merchant’s contract and $55.00 under the Potter contract. It further pleaded that the failure of the alarm system to notify respondent of the burglary was due to causes beyond its control. With the pleadings in this state the cause was tried.

The evidence at trial was that in 1968, Gilbert Dolgin, d/b/a Dolgin Candy & Tobacco Co. moved into the premises at 8697 Market Street in the City of St. Louis. Prior to making the move he sought to ascertain from a number of burglar alarm companies different systems available to him for protection against burglaries. In his former location he had an alarm system consisting of a “local bell” on the outside of the store which when activated would ring loudly alerting those within earshot that an attempt to enter the business premises had been made or accomplished. He talked with Clarence Baker of Merchants Alarm Company and with Alexander Hill of respondent Potter Electric Signal Company sometime prior to July, 1963, and had decided to install an L.A.T. System (Late Alarm System) sold by Merchants with the local bell part of the system to be supplied by Potter. It was stipulated between the parties at trial that Potter had bought out Merchants sometime in June, 1963, but this was not revealed to Mr. Dolgin and Mr. Hill denied that he had any knowledge of the fact during his negotiations with Mr. Dol-gin prior to the execution of the contracts with Potter on July 8, 1963, and with Merchants on July 15,1963. During his negotiations with Mr. Dolgin, Mr. Hill recommended the installation of a “direct line system.” The difference between the two systems is that in the direct line system any interruption in the circuit of the burglar alarm system is immediately reported to the central office of the burglar alarm service which can immediately notify the police and the owner that the premises have been broken into. The Late Alarm System, on the other hand, consists of a bell located on the premises which is activated when a circuit is broken and commences ringing to attract the attention of anyone in the vicinity; then, within 35 seconds, an alarm is sounded at the central office of the burglar alarm service which can thereafter notify the police and the owner of the break-in. Mr. Dolgin preferred the latter because he was of the opinion that the sounding of the bell would drive off the burglars whereas the absence of a bell would afford a burglar an opportunity to leave the scene with some of his merchandise before the police arrived. Furthermore, it was more convenient, because the Late Alarm System was placed in operation by the use of a “shunt key” inserted from the exterior of the building into the system thereby turning the system on. This would allow 35 seconds to open the door and activate the bell to see to it that the system was functioning. So long as the door was closed within 35 seconds the central office would not be alerted. This Mr. Dolgin said he could not do with the direct line system. The direct line system was, in Mr. Hill’s opinion, the better system for Mr. Dolgin considering his location and the nature of his merchandise. Mr. Dolgin had decided upon the installation of the Late Alarm System with Mr. Baker and the installation of the local bell component with Mr. Hill. There was some conflict between the testimony of Mr. Dolgin and Mr. Hill whether both contracts were delivered to Mr. Dolgin simultaneously. Mr. Dolgin testified they were and Mr. Hill’s testimony was that he delivered only the Potter contract. The difference in the dates on the contracts was due to the fact that Mr. Baker was out of town and could not witness the Merchants’ contract until a week after he returned. Although Mr. Dol-gin indicated to Mr. Hill that he wanted to go over the contracts with his lawyer, he testified that he was urged to, and did sign them without consulting with his lawyer about them.

On November 23, 1967, appellant was contacted by the St. Louis Police at his home and informed that his business premises had been burglarized during the night. He went from his home to the business and observed that a layer of bricks had been removed from the east wall of the building and the back doors were knocked in with one of the doors hanging on its hinges. The interior of the premises was in complete disarray. Merchandise valued at $10,150.00 was missing. Mr. Wagner, an employee of Potter, was at the premises when Mr. Dol-gin arrived and both checked the burglar alarm system. Mr. Dolgin observed that the shunt lock was in the “on” or activating position and that the wires leading from the bell to the alarm system inside the premises had been cut. It was the severing of these wires which deactivated the system thereby preventing transmission of the signal to the central offices of respondent. When these wires were spliced and taped together the system functioned/ Mr. Dolgin testified that Mr. Hill had told him prior to entering into the contract with Potter that the only way the alarm system could be turned off once it was turned on was by use of the “shunt key.”

Respondent’s evidence consisted of the reading of the two contracts, and at the conclusion of all of the evidence its Motions for Directed Verdict as to Counts I, III and IV were sustained by the trial court. Count II of appellant’s Second Amended Petition was submitted to the jury and, as stated above, a verdict for the respondent was returned.

Appellant’s first point is that the trial court erred in permitting the respondent’s counsel, “in closing argument ... to argue against pleaded causes of action on which motions for directed verdict had been previously granted, and which were not instructed on.” (Emphasis supplied).

Respondent argues that appellant did not preserve this claim of error for review for the reason that he did not object on these grounds in the trial court. We agree that not only for the reasons stated by the respondent has appellant failed to preserve this point for review, but although we have searched his motion for new trial we find no allegation of trial error therein directed to “closing argument” as stated in appellant’s first point relied on in his brief. The allegations in appellant’s motion for new trial, paragraphs 5 and 6 are directed to the trial court’s permitting respondent’s counsel to “state to the jury, during the defendant’s case ” that the Counts for misrepresentation and fraud were filed approximately two years after the original pleadings had been filed. We are further of the opinion that this point as stated is in direct violation of Rule 84.04(d) in that it is an abstract statement which does not state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. Nevertheless, we have examined the record and find that what the appellant sought to present as trial error was respondent’s argument with reference to certain evidence which came in during the course of trial with respect to Counts III and IV, which had been taken from the jury’s consideration by the trial court’s action on respondent’s motions for directed verdict. Only one objection was made during this line of argument: “Same objection, Your Honor.” This came at a point in respondent’s argument where it was being argued that the lawsuit was filed by appellant’s brother, a lawyer, about a year after the burglary, and in the context that if it were a fact that Mr. Hill had made any false representations to Mr. Dolgin would that not have been the “keystone” of the lawsuit from the very moment it was filed. An objection as formulated here preserves nothing for review. The purpose of an objection is to call to the attention of the trial court that which the objecting party considers to be error and the objecting party has the burden of making the basis of his objection reasonably apparent to the court. Crabtree v. Reed, 494 S.W.2d 42, 45[4] (Mo.1973). A perusal of the transcript of the record reveals that the only prior objection to respondent’s closing argument made by appellant’s counsel was an objection that the contract spoke for itself. It is clear that appellant’s objection did not meet the test of Crabtree v. Reed, supra, and for that reason preserved nothing for review.

Appellant, in a memorandum of law on additional points relied upon in support of this point cites cases which hold that when a party has duly objected to a certain type of evidence and the objection has been overruled it is not necessary that he repeat the objection to further evidence of the same type. Brug v. Manufacturers Bank & Trust Co., 461 S.W.2d 269 (Mo. banc 1970), State ex rel. State Highway Commission v. Offutt, 488 S.W.2d 656 (Mo.1972). This rule he contends should be applied here because he made an objection prior to the beginning of trial with respect to any reference being made by counsel for the respondent to the fact that Mr. Dolgin’s brother, Joseph Dol-gin, was one of appellant’s counsel’s partners because the jury might feel that the appellant was not paying an attorney’s fee and was bringing the suit without any foundation by reason of the fact his brother happened to be an attorney. The trial court overruled this motion. Faced with that ruling appellant’s counsel stated to the trial court and opposing counsel that he himself would bring out the relationship on voir dire examination of the jury.

The difficulty with appellant’s position in this respect is that he has not preserved for review in this Court whether the trial court was guilty of error in the first instance in ruling that the relationship between the appellant and one of trial counsel’s partners could be mentioned to the jury. Furthermore, as we have pointed out heretofore, he has not property preserved this point for review for other reasons. We will not require that a trial court in the midst of argument he expected to refresh its recollection and refer back to pre-trial proceedings for the purpose of placing an objection in the proper context. That is trial counsel’s duty, and here he utterly failed to point out to the trial court, what earlier objection he was referring to. We rule this point against appellant.

Appellant’s second point is that the court erred in withdrawing the issues of fraud, misrepresentation and punitive damages from the jury. Here again appellant has failed to comply with the requirements of Rule 84.04(d) and once more has made an abstract statement without supportive reasons why the action of the trial court complained about was erroneous. We simply do not have the time to study the argument portion of the brief to determine the reason appellant contends the trial court erred, when appellant could have saved us this labor. Griffin v. State, 513 S.W.2d 706, 708 (Mo.App.1974). However, we have read the argument portion of his brief and examined the transcript and find no error in this respect. The thrust of appellant’s argument is that Mr. Hill misled him when he told him that the only way to turn off the alarm system once it had been activated was with the shunt key, whereas the alarm system was, as a matter of fact, rendered inoperable by the cutting of the wires. Appellant, by his own testimony, when Mr. Hill suggested a direct line system, told Mr. Hill that he “was already taken care of.” Appellant had already decided on the L.A.T. system and had determined to buy the bell apparatus from respondent. Mr. Hill’s statement to Mr. Dolgin was directed to whether the alarm system could be turned off without the shunt key. One of the elements of fraud, at least, was missing. There was here no reliance on any statements by Mr. Hill in Mr. Dolgin’s decisions to install the system he did, and the trial court did not err in sustaining respondent’s motion for directed verdict with respect to Count III. Finding no error in this respect, we further conclude that the trial court ruled correctly in withdrawing from the jury’s consideration Count IV wherein appellant sought punitive damages for fraud and misrepresentations.

Appellant’s final point — that the trial court erred in refusing to permit appellant to impeach Mr. Hill, whom appellant had called as his own witness, by use of prior inconsistent testimony given in a deposition is likewise without merit. The crux of appellant’s argument in support of this point is what he considers a conflict in Mr. Hill’s testimony relative to whether Mr. Dolgin signed the two contracts in Mr. Hill’s presence. Mr. Dolgin had testified that he had and Mr. Hill testified that when he left the contract with Mr. Dolgin and then departed from Mr. Dolgin’s office the contract was not then signed by Mr. Dolgin. We will not lengthen this opinion by setting out the contents of the deposition of Mr. Hill sought to be used as impeachment, but we agree with the trial judge who concluded that the statements contained in the deposition did not conflict with Mr. Hill’s testimony in court on this point. The rule with respect to this type of evidence is that some real inconsistency must appear prima facie before evidence of alleged inconsistent statements become competent. State of Missouri ex rel. Hy. Comm. v. Fenix, 311 S.W.2d 61, 64[3] (Mo.App.1958). The trial court is clothed with discretion with respect to the extent of cross-examination as to collateral matters, and here there was no real issue in the case concerning these contracts. Mr. Hill had been called as a witness for appellant and was not recalcitrant nor unfriendly to appellant despite the fact he was in the employ of respondent Potter. After refusing to permit the use of the deposition for cross-examination the trial court did allow appellant’s counsel to question Mr. Hill further and thereby elicit from Mr. Hill that he was not sure that when he left the contract with Mr. Dolgin it was not signed at that time by Mr. Dolgin. We conclude that the trial court did not err.

We affirm.

CLEMENS, P. J. and STEWART, J., concur.

      . Merchants Alarm Service shall hereinafter be referred to as “Merchants” and Potter Electric Signal Co. as “Potter.”


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    R. G. BENEKE, Appellant, v. WESTERN SURETY COMPANY, Appellee.
    No. 4863.
    Court of Civil Appeals of Texas, Eastland.
    March 4, 1976.
    Rehearing Denied April 1, 1976.
    Joe Riddles (Kraus, Semon & Riddles), Richardson, for appellant.
    Edward J. Drake (Brady, Drake & Wilson), Dallas, for appellee.
   McCLOUD, Chief Justice.

This is a suit upon a statutory real estate broker’s bond signed by H. Ward Collier, Jr., as principal, and Western Surety Company, as surety, in compliance with Article 6573a, Sec. 11, Vernon’s Ann.Civ.Stat. Plaintiff, R. G. Beneke, sued defendant, Western Surety Company, alleging that he had previously obtained a judgment against H. Ward Collier, Jr., for actual damages of $2,250, resulting from Collier’s violation of the Real Estate License Act. Plaintiff specifically alleged that Collier, while acting as a real estate broker as defined in the Act, violated Section 16(c)(5). Both parties moved for summary judgment. Defendant contended the summary judgment proof conclusively established that Collier was acting as a loan broker and not as a real estate broker, as defined in the Act, at the time of the transaction. Plaintiff argued he was entitled to summary judgment because the previous judgment against Collier was conclusive against defendant. The trial court granted defendant’s motion. Plaintiff, Beneke, has appealed contending the court erred in granting defendant’s motion, and in not granting his motion for summary judgment. We reverse and render.

The controlling question is whether the judgment in favor of Beneke against Collier is conclusive as to Western Surety Company. It is uncontroverted that at the time of the transaction between Beneke and Collier, Western Surety had issued the bond in question. Western Surety contends it is not bound by the judgment entered in the suit between Beneke and Collier because it had no notice of the suit, and Collier’s actions were not covered by the Act.

It has been held the statutory bond in question is a contract of indemnity and not one of surety. American Casualty Company v. Texas Real Estate Commission, 362 S.W.2d 192 (Tex.Civ.App.-El Paso 1962, writ ref. n. r. e.); Reliance Insurance Company v. Parks, 430 S.W.2d 950 (Tex.Civ. App.-Amarillo 1968, writ ref. n. r. e.). The obligation of the indemnitor is determined by the contract.

In considering the effect of a prior judgment against a real estate broker, the court in Reliance Insurance Company v. Parks, supra, said:

. The basis of appellant’s obligation is the bond itself. When the principal’s acts have been judiciously found to have been a violation of the Act and such acts have caused damages or injury as determined by a prior final judgment, the liability of the surety becomes fixed. The final judgment against the principal fixes the liability of the surety. Lawyers Surety Corporation v. LaDue (Tex.Civ.App.) 358 S.W.2d 714 .. . ”

The court in American Casualty Company v. Texas Real Estate Commission, supra, stated:

“ . . . The judgment entered thereon (when Barela failed to pay it) determined the amount of the 'damages or injury suffered by appellee, and became the measure of the indemnitor’s loss and fixed the extent of the indemnitor’s liability under the bond . . . ”

The failure to give the surety on an indemnity contract notice of suit was discussed in the early case of Browne v. French, 22 S.W. 581 (Tex.Civ.App.1893, no writ), wherein the court said:

“The first question that we consider is, is the judgment of the Crane-Breed Manufacturing Company against French and the appellant conclusive against the ap-pellees as sureties on the bond sued on in this case, they not being parties to the suit or notified of its pendency? The obligation created by the bond so executed to appellant was that the obligors should pay the debts of French & Browne, and hold the appellant harmless. It was not that they should be bound by any particular judgment, but simply a general promise to pay the debts. The general rule upon this subject may be stated that, when it appears from the terms of the obligation that the surety has contracted to become bound by a judgment that has been or may be rendered in an action against his principal, it is conclusive against him, although he was not a party to the suit in which the judgment was obtained; but in an undertaking, general in character, such as the bond sued upon in this case, the judgment obtained against the principal therein only creates a prima facie liability against the surety who was not made a party or given an opportunity to defend the suit in which the judgment was obtained. In such cases the judgment is not conclusive, and does not operate as an estoppel against the surety, and he will, when sought to be made liable therefor by the judgment creditors, be permitted to interpose any valid defense that would defeat the plaintiff’s case existing at the time the judgment was obtained . ” (emphasis added)

In distinguishing between an agreement to be bound by a particular judgment and a general undertaking to pay debts, the court in United States Fidelity & Guaranty Co. v. Paulk, 15 S.W.2d 100 (Tex.Civ.App.-Texarkana 1929, no writ) said:

“ . . . the appellees did not have notice of the former suit. The generally recognized rule, and about which there is no doubt, is that a final judgment of a competent tribunal is conclusive of all matters adjudicated as between the parties and their privies. This estoppel extends, of course, to every material allegation in the cause which was either expressly or by necessary implication in issue. In such case the judgment, upon proof of its rendition, becomes conclusive evidence against such parties. And the rule seems to be established that an in-demnitor, although he does not appear in the suit, is not regarded as a stranger to the judgment, which, if obtained without fraud or collusion, is conclusive against him to the extent of the matters expressly determined by it, where such indemnitor expressly makes his liability to depend on litigation and stipulates that he will abide the result of the suit. 34 C.J. p. 1031; 14 R.C.L. p. 61; 2 Black on Judgments, 573; National Surety Co. v. Love, 105 Neb. 855, 182 N.W. 490, and other cases. He may set up and prove only defenses which were not directly determined in the first litigation . Again, according to the weight of authority, as a general rule, where the indemnitor has not been notified of the prior suit and has not made his liability over depend expressly on the event of a litigation to which he was not a party and has not stipulated to abide the judgment of the suit, estoppel is not created by the judgment therein and such judgment does not become conclusive evidence of the ultimate liability over to the defendant therein. It is regarded as prima facie evidence of the fact of its rendition and the amount of damages . . . ” (emphasis added)

See also 30 Tex.Jur.2d Indemnity § 23 (1962); 42 C.J.S. Indemnity § 32 (1944); Kruger v. California Highway Indemnity Exchange, 201 Cal. 672, 258 P. 602 (1927).

In the instant case defendant expressly agreed “to abide the judgment” of a particular suit. The bond bound defendant to pay “any judgment recovered by any person in any suit for damages or injury caused by a violation of this Act.” (emphasis added) The italicized language describes the kind of suit in which a judgment must be entered before defendant is liable. The judgment entered on behalf of plaintiff against Collier expressly found:

“ . . . H. Ward Collier, Jr., is indebted to the Plaintiff, R. G. Beneke, in the principal sum of $2,250.00; the Court further finds that the Defendant, H. Ward Collier, Jr. violated Article 6573a of the Real Estate License Act, section 16(c)(5) in that he failed within a reasonable time to account for and to remit monies which came into his possession which belonged to R. G. Beneke, and that he refused to return the said money . . . ”

There can be no doubt that the suit filed by Beneke against Collier was a suit, “for damages or injury caused by a violation” of the Act. Beneke’s petition in the Collier suit expressly alleged that Collier, in his capacity as a licensed real estate broker, converted Beneke’s funds in violation of the “Real Estate License Act.” Defendant expressly contracted to be bound by any “judgment” in any such suit. The judgment rendered in the prior suit is conclusive against defendant in the absence of any allegations of fraud or collusion. There are no such allegations, or summary judgment proof in the case at bar.

The judgment of the trial court is reversed and judgment rendered for plaintiff in the sum of $2,250, plus interest from April 25, 1975, the date defendant admitted demand had been made upon it to pay the amount of the outstanding judgment against Collier. American Casualty Co. v. Texas Real Estate Commission, 362 S.W.2d 192 (Tex.Civ.App.-El Paso 1962, writ ref. n. r. e.).

Reversed and rendered.

      . The bond is no longer required. See 1975 amendment, Sec. 8, Art. 6573a.

      . Article 6573a, Vernon’s Ann.Civ.Stat.

      . “(c) the licensee, while performing any of the acts constituting a Broker or Salesman as defined by this Act, has been guilty of.'

      (5) Falling within a reasonable time to account for or remit moneys coming into his possession which belong to others, or commingling of moneys belonging to others with his own funds; . . . ”


author: PEDEN, Justice.

text:
    COUCH MORTGAGE COMPANY, Appellant, v. Jon N. HUGHES et al., Appellees.
    No. 16639.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 18, 1976.
    Rehearing Denied April 15, 1976.
    Carl, Lee & Fisher, Robert H. Fisher, Houston, for appellant.
    Herbert Finkelstein, Houston, for Jon Hughes, receiver.
   On Motion for Rehearing

PEDEN, Justice.

We withdraw our opinion filed on January 29, 1976, and enter this one in its place.

This is a divorce action brought by James L. Roberts against Rita Roberts. Together they own almost all the stock in Homefin-ders Real Estate, Inc., a company that buys and resells equities in residential properties. Mr. Roberts alleged in his petition that Mrs. Roberts had, during his continuing, disabling illness, secreted corporate assets and failed to make payments due to mortgage companies on residential properties in which Homefinders had dealt, so foreclosures by the mortgage companies were imminent.

In response to Mr. Roberts’ motion, a Court of Domestic Relations judge appointed Mr. Jon Hughes receiver to “take possession of and administer, under order of this court, any and all property in the possession of or under the control of James L. Roberts, Rita Roberts, and their businesses, Home-finders Real Estate, Inc. and Overland Mortgage Company, together with all books and records pertaining thereto . . .”

Homefinders was made a party to the suit and an answer was filed in its behalf.

Later, a temporary injunction was granted, on the receiver’s application, restraining Couch Mortgage Company and others from foreclosing their liens “on any property owned or held by James L. Roberts, Rita Roberts, . . . Overland Mortgage Co. or Homefinders Real Estate, Inc. . . ” At the same hearing, when the trial judge granted this temporary injunction, he also overruled the motion of Couch Mortgage Co. to dissolve the receivership. Couch Mortgage appeals from both those orders.

The appellant’s first two points of error are that the trial court erred in overruling its motion to dissolve the receivership as it affects Homefinders Real Estate, Inc., because 1) the Court of Domestic Relations of Harris County does not have jurisdiction to appoint a receiver for a corporation, its assets or its business, and 2) the mandatory and exclusive provisions of the Texas Business Corporation Act were not complied with in the appointment of the receiver.

The appellant points out that Article 7.05 of the Texas Business Corporation Act provides: “A receiver may be appointed for the assets and business of a corporation by the district court for the county in which the registered office of the corporation is located . . . ” and that Article 7.07 of the Act states:

“A. No receiver shall be appointed for any corporation to which this Act applies or for any of its assets or for its business except as provided for and on the conditions set forth in this Act.
“E. A court authorized to appoint a receiver for a corporation to which this Act applies, and no other court in this State, shall be authorized to appoint a receiver for the corporation or its assets and business . . .”

It is undisputed that the registered office of Homefinders Real Estate, Inc. is in Harris County.

One of the issues raised by the appellant is whether the Court of Domestic Relations of Harris County comes within the definition of “district court” as used in the Texas Business Corporation Act. The Court of Domestic Relations of Harris County was established by Art. 2338-5, V.T.C.S.

Sec. 3 covers its jurisdiction:

“The Court of Domestic Relations for Harris County shall have the jurisdiction concurrent with the District Courts in Harris County of all . divorce and marriage annulment cases, including the adjustment of property rights . and any and every other matter incident to divorce or annulment proceedings .; and all other cases involving justiciable controversies and differences between spouses, or between parents, or between them, or one of them, and their minor children, or between any of these and third persons, corporations, trustees or other legal entities, which are now, or may hereafter be, within the jurisdiction of the District or County Courts; . of all suits for trial of title to land and for the enforcement of liens thereon, of all suits for trial of the right of property, and said Court and the Judges thereof shall have power to issue writs of habeas corpus, mandamus, injunction, and all writs necessary to enforce their jurisdiction.” (emphasis added)

The present provisions of Art. 2338 — 5 were enacted by the 60th Legislature in 1967. They amended its 1953 wording, which did not contain the provision we have emphasized above. We conclude that the legislature intended to confer on the Court of Domestic Relations of Harris County jurisdiction to appoint, in a divorce suit, a receiver for property belonging to the marital estate found in the possession or control of a corporation, but we find no authority for that court to appoint a corporate receiver over all property in the possession or under the control of the corporation absent a showing that the corporation was the alter ego of one of the parties. Such a showing was not made in this case.

The appellant also complains that when the trial court granted the temporary injunction in response to the receiver’s motion it failed to fix a bond as required by Rule 684, Texas Rules of Civil Procedure. We grant this point. Rule 693a, which permits the court in a divorce court to dispense with a bond, does not apply here because the injunction in this case was not ordered, as that rule specifies, in behalf of one spouse against the other. The Texas Supreme Court held in Goodwin v. Goodwin, 456 S.W.2d 885 (1970), that under Rule 684 a bond is specifically required as a condition precedent to the issuance of a temporary injunction, and the failure of the applicant to file such bond renders the injunction void ab initio.

Appellee filed a motion to dismiss the appeal, contending that the appellant, by receiving checks from the receiver and cashing them, has waived any complaint about the receivership.

We note that by letters accepting payment the appellant expressly reserved the right to contest the receivership. We hold that the act of the appellant in conditionally accepting payment in compliance with the order of the trial court pending appeal did not amount to a recognition of or acquiescence in the decision of the trial court. Nor did it constitute a waiver or estop the appellant from prosecuting this appeal.

We reverse in part the order of the trial court and order dissolved the temporary injunction; we also order dissolved the receivership over Homefinders Real Estate, Inc. The trial court’s order is in all other respects affirmed.


author: EVANS, Justice.

text:
    Marvin V. BRANTLEY, Appellant, v. The PHOENIX INSURANCE COMPANY et al., Appellees.
    No. 16647.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 18, 1976.
    Rehearing Denied April 15, 1976.

      Jack E. Stephens, Houston, for appellant.
    Danny L. Van Winkle, Houston, for ap-pellees; Vinson, Elkins, Searls, Connally & Smith, Houston, of counsel.
   EVANS, Justice.

A workmen’s compensation case.

This suit was brought to collect benefits for total disability resulting from the contraction of asbestosis. The claimant alleged that he had been employed as a fiberglass man by Industrial Waterproofing, Division of Tex-Tube, Inc., from December 1961, through October 1962 and that his only exposure to asbestos was during that period of time. He alleged that he terminated all employment during September 1973 and during surgery in March 1974 a highly malignant tumor was discovered which was diagnosed as having been caused by his exposure to asbestos dust.

The parties stipulated that the last injurious exposure occurred in 1962; that the claimant’s incapacity resulting from inhalation of asbestos dust did not occur within three years of such last exposure and that the first distinct manifestation of asbestosis and incapacity occurred after August 30, 1971. Based upon the pleadings and stipulations, the trial court granted the insurance carrier’s motion for summary judgment.

Section 25 of Article 8306, Tex.Rev.Civ. Stat.Ann., which was repealed by Acts 1971, 62nd Leg., p. 2540, ch. 834, § 2, effective August 30, 1971, provided in part:

“The Association shall not be liable for any compensation for an occupational disease unless . . . incapacity or death results within three (3) years in the case of silicosis or asbestosis after the last injurious exposure to such disease in such employment . . . ”

The same legislature which repealed Section 25 of Article 8306, also amended Section 20 of that Article so as to define the term “occupational disease” as including “damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby.”

Appellant contends that since his disability was not manifested until 1973, his “cumulative injury” occurred after the repeal of Section 25 and that statute did not preclude his recovery. He relies upon the rationale of Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).

It is appellees’ position that since appellant’s “last injurious exposure” occurred prior to the repeal of Section 25, that section is controlling. It argues that the legislature’s intent that Section 20 would be given only prospective application is reflected by Section 3 of the 1971 amendatory act which reads as follows:

“Sec. 3. As respects claims for injury sustained prior to the effective date of this Act, no inchoate, vested, matured, existing or other rights, remedies, powers, duties, or authority, either of any employee or legal beneficiary, or of the Board, or of the association, or of any other person shall be in any way affected by any of the amendments or repeals herein made to the original law hereby amended or repealed, but all such rights, remedies, powers, duties, and authority shall remain and be in force as under the original law just as if the amendments or repeals hereby adopted had never been made, and to that end it is hereby declared that as respects such injuries occurring prior to the effective date of this Act, said original law is not repealed, but the same is, and shall remain in full force and effect as to all such rights, remedies, powers, duties, and authority; and further that this Act insofar as it adopts the law of which it is an amendment is a continuation thereof, and only in other respects a new enactment.”

While we recognize that the provisions of the Workmen’s Compensation Act should be liberally construed in favor of an injured claimant, we are not at liberty to adopt a construction which is contrary to the plain and unambiguous language of the statute. Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711, 714 (1961). The 1971 amendatory act manifests a legislative intent that the amended laws will not affect pre-existing rights or remedies. This view is aided by the presumption that the legislature did not intend to enact an unconstitutional statute.

Article I, Section 16, of the Texas Constitution provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”

A statute which revives a cause of action which has already been barred is retroactive within the intent and meaning of the constitutional provision. Southern Pacific Transport Co. v. State, 380 S.W.2d 123, 127 (Tex.Civ.App.-Houston 1964, writ ref’d); Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887). Under the provisions of Section 25, which remained in effect until its repeal in 1971, an insurance carrier was relieved of liability upon the expiration of three years following the workman’s “last injurious exposure” to asbestosis. The provisions of that statute must be read into the contractual arrangement between the parties in the instant case. Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447 (1922); Garrett v. Texas Employers Ins. Ass’n, 226 S.W.2d 663 (Tex.Civ.App.-San Antonio 1949, writ refused). Since the parties’ rights and remedies became fixed under Section 20, upon expiration of three years after appellant’s last injurious exposure, a retroactive application of the 1971 amendment to Section 20 would impair appellee’s substantive right to rely upon the prior statute as a defense. Cathey v. Weaver, supra; Petroleum Casualty Co. v. Canales, 499 S.W.2d 734, 737 (Tex.Civ.App.-Houston [1st Dist.] 1973, writ ref’d n.r.e.). We believe the trial court properly determined appellant’s cause of action to be precluded under the provisions of Section 25, Article 8306, Tex.Rev.Civ.Stat.Ann.; Legate v. Bituminous Fire & Marine Insurance Co., 483 S.W.2d 488 (Tex.Civ.App.-Beaumont 1972, writ ref’d n.r.e.).

Affirmed.


author: CADENA, Justice.

text:
    Manuel TREVINO et al., Relators, v. A. V. BARRERA et al., Respondents.
    No. 15617.
    Court of Civil Appeals of Texas, San Antonio.
    March 24, 1976.

      R. E. Lopez, Jr., Alice, for relators.
    Ricardo H. Garcia, San Diego, for respondents.
   CADENA, Justice.

Relators, Manuel Trevino, Lazaro Vela and Roberto Hinojosa filed a petition for a writ of mandamus ordering Respondent, A. V. Barrera, Chairman of the Executive Committee of the Democratic Party in Du-val County, and the members of such Executive Committee, to place their names on the ballot for the Democratic Primary to be held May 1, 1976, as candidates for that party’s nomination for the office of County Treasurer of such County. By the same petition, Relators, Edmundo A. Cantu, Alejandro Martinez and Jose Benito Canales sought a writ of mandamus compelling such Chairman to place their names on the primary ballot as candidates for the Democratic Party’s nomination for the office of County Commissioner, Precinct 4, of Duval County.

Subsequently, petitioners amended their petition by adding a prayer that, should this Court find that the offices of County Treasurer and County Commissioner, Precinct 4, are not vacant, a writ of mandamus be issued compelling the Hon. Darrell Hester, acting as Presiding Judge for the 229th Judicial District Court of Duval County, to enter an order declaring the two offices vacant since each of the persons elected to such offices has been convicted of a felony.

Relators rely on Article 5968, Tex.Rev. Civ.Stat.Ann., which reads: “All convictions by a petit jury of any county officers for any felony, or for any misdemeanor involving official misconduct, shall work an immediate removal from office of the officer so convicted. Each such judgment of conviction shall embody within it an order removing such officer.”

On October 15, 1975, Felipe Valerio, County Commissioner of Precinct 4, entered a plea of nollo contendere to a charge of official misconduct (see Tex.Pen.Code Ann., Secs. 1.07, 39.01). After he had waived his right to a jury trial, evidence was heard and the district court entered judgment finding him guilty of the offense charged in the indictment and setting his punishment, confinement for a period of 5 years. The judgment then recited that Valerio’s application for probation was granted, and the “imposition of sentence” was postponed for a period of 10 years. One of the terms of probation was that Valerio, “[f]or a period of ten (10) years from the date of this Judgment . shall not seek, accept, nor hold any position, job or office by virtue of which he would be a ‘public servant’ as that term is defined by Section 1.07, Subsection 30, of the Penal Code of the State of Texas.” The judgment contained no order expressly removing Valerio from the office of County Commissioner.

On December 15,1975, Manuel Cruz Solis, Sr., County Treasurer, entered a plea of guilty to a charge of official misconduct. After he had waived his right to a jury trial and evidence was introduced, the court entered judgment finding him guilty of the offense charged and placing him on probation for a period of 10 years. In all other respects relevant to this proceeding, the judgment was similar to the judgment in the Valerio case.

Previously, on October 24, 1975, in a civil action initiated under the provisions of Articles 5970, et seq., Tex.Rev.Civ.Stat.Ann., seeking removal of Valerio from the office of County Commissioner, Precinct 4, the court entered an order temporarily suspending Valerio from such office and appointing another person to perform the duties of such office during such period of temporary suspension of Valerio. No final order permanently removing Valerio from such office has been entered.

On December 15, 1975, in a civil action seeking the removal of Solis from the office of County Treasurer, the court entered an order temporarily suspending Solis from such office. No final order of removal has been entered in such removal suit.

As far as the record reflects, no hearings have been held relating to the permanent removal of Valerio or Solis.

We consider first the petition seeking an order of this Court compelling Judge Hester to enter an order permanently removing Valerio and Solis from the offices to which they were elected. Relators’ specific prayer is that we compel the entry of such order in the civil removal suits. It is clear that this portion of the relief sought by relators must be denied.

Where a civil suit seeking the removal of a public officer is filed, the officer is entitled to a jury trial. Article 5, Sec. 24, Tex.Const.Ann.; Article 5971, Tex.Rev.Civ. Stat.Ann. We are not willing to hold that the waiver by Valerio and Solis of their right to a jury trial in the criminal cases constituted a waiver of their right to a jury trial in the separate civil removal suits. Nor can it be doubted that Valerio and Solis have a right to be heard in the removal suits and to present evidence. We know of no constitutional provision, statute or judicial decision authorizing us to compel a trial judge to enter judgment without a hearing.

The prayer for mandamus directed to the Duval County Democratic Chairman does not lend itself to such facile disposition.

Article 5968, on which relators rely, by its express terms, provides for automatic removal upon “conviction by a petit jury.” The county chairman’s refusal to place rela-tors’ names on the ballot appears, at first blush, to be correct, since Valerio and Solis have not been removed from office as a result of a civil suit seeking their removal, nor have they been convicted by a jury, as seemingly required as a condition precedent to automatic removal under Article 5968. However, we conclude that the conviction of Valerio and Solis of offenses of the grade or felony resulted in their automatic removal from their offices.

Article 5968 was enacted in 1876. At that time and, in fact, until 1981, it was not possible for an accused to waive the right of trial by jury in a felony prosecution. This fact was expressly recognized by the Legislature when, in 1931, it made it possible for a person charged with a felony to waive his right to a jury upon a plea of guilty. Acts, 1931, 42d Leg., ch. 43, p. 65. The validity of a statute permitting the waiver of the constitutional right of trial by jury is beyond question. Bolton v. State, 123 Tex.Cr.R. 543, 59 S.W.2d 833 (1933).

If a constitutional right can be waived, it cannot be persuasively argued that a right granted by statute cannot be voluntarily relinquished. Therefore, the right of a public official accused of a felony to insist on conviction by a jury as a condition precedent to giving to such conviction the effect of automatically removing him from office may be waived. Since both Valerio and Solis waived the right to a jury trial, they voluntarily waived the right to now insist that the conviction did not effect their automatic removal from office because they were not found guilty by a jury.

We conclude that the judgments of conviction automatically removed Valerio and Solis from the offices which they formerly held.

We are, of course, not overlooking the provision in Article 5968 directing that the judgment of conviction shall include an order removing the convicted officer from office. It would, perhaps, be possible to construe that provision of the judgments prohibiting Valerio and Solis, during the probationary periods, from holding “any position, job or office” amounts to an effective removal of Valerio and Solis from office, since if they are now “holding” office this would amount to a violation of the terms of their probation. Aside from this, we hold that the statutory direction concerning the contents of the judgment does not constitute a condition precedent to the removal. The removal, according to the statute, results automatically from the fact of conviction, and not from the recital in the judgment which merely reflects the effect of such conviction. The legislative direction that the judgment recite the fact of removal can be reasonably construed as merely providing an official record of such removal.

Relators’ petition for a writ of mandamus directed to the Hon. Darrell Hester is denied. The petition for a writ of mandamus ordering the Chairman of the Democratic Executive Committee of Duval County, and the members of such Executive Committee, to place relators’ names on the ballot for the Democratic Party primary election to be held in Duval County on May 1, 1976, is granted.

Respondent, A. V. Barrera, Chairman of the Executive Committee of the Democratic Party for Duval County, and respondents, Rolando Lopez, Victoriano Casas, Anastacio Barrera, Adan Garcia, Adolio Briones, Ken Bercaw, Santiago Sanchez, Anthony Cu-briel, Diamantina S. Davila, and Amelia A. Garcia, members of the Executive Committee of the Democratic Party for Duval County, are ordered to place on the ballot for the Primary Election of the Democratic Party to be held in Duval County on May 1, 1976, the names of Manuel Trevino, Lazaro Vela, and Roberto Hinojosa, as candidates for the nomination of the Democratic Party for the office of County Treasurer of Duval County, Texas, and the names of Edmundo A. Cantu, Alejandro Martinez and Jose Benito Canales as candidates for the nomination of the Democratic Party for the office of County Commissioner, Precinct 4, of Duval County, Texas.

Since the Court is confident that its order will be complied with without the necessity of issuing and serving upon such respondents a writ of mandamus, the Clerk of this Court is directed not to issue and serve such writ unless respondents fail to comply with the order of this Court.

Relators’ petition for mandamus directed to Alberto Garcia in his capacity as County Clerk of Duval County is denied.

Relators shall pay one-sixth of the costs incurred in this proceeding. Respondents, except the Hon. Darrell Hester and Alberto Garcia, shall pay the remaining five-sixths of such costs.


text:
    Flodene Blane GLOVER, Appellant, v. Marjorie S. MOORE, Public Welfare Supervisor I, Social Service Unit 038, Hunt County, Appellee.
    No. 4878.
    Court of Civil Appeals of Texas, Eastland.
    March 25, 1976.
    Rehearing Denied April 22, 1976.

      Paul Banner, Greenville, for appellant.
    Jerry Spencer Davis, Dist. Atty., Green-ville, Donald R. Smith (amicus curiae), Dallas, for appellee.
   McCLOUD, Chief Justice.

Flodene Blane Glover, the biological mother of C.D.G., filed a motion requesting the court to modify its former order, and appoint her managing conservator of C.D.G. The former order terminated the parental rights of the mother. Marjorie S. Moore, Public Welfare Supervisor I, Social Service Unit 038, managing conservator of the child, filed a motion to dismiss which was granted. Flodene Blane Glover has appealed. We affirm.

The court entered an order on August 14, 1974, finding the child to be dependent and neglected and terminated the parent-child relationship between the biological mother and the child. Flodene Blane Glover appealed that decision which was affirmed by the Beaumont Court of Civil Appeals in an unpublished opinion (No. 7678, March 27, 1975, no writ). After the appellate decision became final, Flodene Blane Glover filed the present action requesting that she be named managing conservator.

A decree terminating the parent-child relationship divests the parent and child of all legal rights, privileges, duties, and powers, with respect to each other, except that the child retains the right to inherit from its parent unless the court otherwise provides. V.T.C.A., Family Code, § 15.07. This provision, unlike repealed Ar-tides 2336-37, Tex.Rev.Civ.8tat., results in a complete severance of the parent-child relationship. 5 Tex.Tech.L.Rev. 447 (1974).

Flodene Blane Glover argues the court erred in dismissing her motion because she is a party under Section 14.08, and also a “person with an interest in the child” under Section 11.03 of the Texas Family Code. We disagree.

In the recent case of Rogers v. Searle, 533 S.W.2d 440 (Tex.Civ.App.-Corpus Christi 1976, no writ), a biological mother, whose parental rights had been terminated, filed a petition in intervention in an adoption suit involving the biological child of the inter-vener. The petition in intervention was dismissed. The court said:

“The party who seeks to intervene in litigation that is pending in a trial court must show a legal or equitable interest such that he would be entitled to recover in his own name to the extent of relief sought; .
Tex.Fam.Code Ann. § 15.07 (1975), provides, in part:
‘A decree terminating the parent-child relationship divests the parent and the child of all legal rights, privileges, duties, and powers, with respect to each other . . .
Applying the rule of the statute to this case, all legal rights, privileges, duties and powers of appellant concerning the child were divested out of her on December 9, 1974, when the judgment in Cause No. 33,878 was signed .
In the case at bar, appellant’s petition must fail since she has not alleged a present justiciable interest, legal or equitable, in the subject matter of the litigation. The adoption proceeding should not be held in abeyance until the outcome of appellant’s bill of review is finally determined.
Appellant, not having a present legal or equitable interest in the adoption proceedings, is not a proper party thereto. She has no interest to protect . . . ”

Section 11.01(3) of the Family Code defines a parent as “the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the parent-child relationship has been terminated.”

Section 11.09(a)(7) of the Family Code expressly provides that a parent, whose parental rights have been terminated, is not entitled to service of citation on the filing of a petition in a suit affecting the parent-child relationship.

We hold that Flodene Blane Glover, whose parental rights have been terminated, has no justiciable interest in the subject matter in litigation.

The judgment of the trial court is affirmed.

      . “(a) Any party affected by an order of the court providing for managing conservatorship or support of a child, or setting the terms and conditions for possession of or access to a child, may file a motion requesting the court to modify its former order.” The quoted provision was in effect at the time the modification motion was filed. Section 14.08 was amended effective September 1, 1975.

      . “A suit affecting the parent-child relationship may be brought by any person with an interest in the child, including the child (through a representative authorized by the court), any agency of the state or of a political subdivision of the state, and any authorized agency.”


author: MASSEY, Chief Justice.

text:
    Jerry D. ALCORN, Appellant, v. Mrs. Johnnye BROWN et al., Appellees.
    No. 17705.
    Court of Civil Appeals of Texas, Fort Worth.
    March 26, 1976.
    Rehearing Denied April 30, 1976.
    Law, Snakard, Brown & Gambill and Thos. H. Law and Douglas B. Owen, Fort Worth, for appellant.

      Short & Copeland and John D. Copeland, Wichita Falls, for appellees.
   OPINION

MASSEY, Chief Justice.

Jerry D. Alcorn desired to devote to commercial purposes certain lot or lots in Gillas-pia Addition, a restricted residential subdivision in the City of Wichita Falls. By the antecedent restrictive covenants placed upon use of lots in said addition this desire was frustrated. Alcorn brought suit against the other lot owners to have the restrictions removed.

Trial was to a jury which returned a verdict. Certain answers of the jury were disregarded for purpose of judgment, which was based upon answers remaining. Judgment was rendered in denial of vacation of the restrictions. Alcorn appealed.

We reverse the judgment and remand the cause for another trial.

Gillaspia Addition is comprised of 22 lots, all fronting upon Gayle Street, which is only one block in length. Each of the lots was developed, with residences placed thereon. Thereafter came development of nearby streets and highways and of a large shopping center just across an intersecting street at one end of Gayle Street. As described in the evidence Gillaspia Addition has become a residential island.

A residence at one end of Gayle Street has been converted into a beauty shop which evidently started with one or two chairs but by time of trial was shown to contain twenty chairs, with four operators. Nevertheless the appearance still is that of a resident, save for a sign, and there was never any action taken by other lot owners to prevent such use of the structure.

At the opposite end of Gayle Street a residence, still used as such, contains a picture-framing shop. Nevertheless the appearance is that of a residence, and there was no action taken by other lot owners to prevent such commercial use.

Immediately across the street from the residence in which the frame shop is operated are the two lots Alcorn desires to devote to commercial purposes. Thereon he plans to remove existing improvements and erect a new structure for use in retail sales of food and drink. In modern-day terms the intended use is to operate what is called a “Dairy Queen”. To such intended use there was objection by at least some of the residents and lot owners in Gillaspia Addition.

Alcorn did not proceed with his intention, so as to invoke action of injunctive character. Instead he went into court and made all interested parties defendants to his suit to have the existent restrictive covenants as applied to his lots declared vacated and of no effect on the theory that change of conditions were such that the restrictions no longer served any useful purpose, and, alternatively, that there had been an abandonment of the rights afforded lot owners within the subdivision to have the whole thereof devoted to use for residential purposes, through their consent to the operation of the beauty shop and frame shop.

Abbreviated, the special issues and answers returned thereto was upon a charge, as follows:

No. 1. “Has there been a change of conditions in or surrounding said addition to extent it is no longer possible to secure in substantial degree the benefits sought to be realized through the restrictions?” Answer: “There have not been such changes”.

No. 2. “Has there been material violations of the restrictions which materially affect the other lots in the addition?” Answer: “There has not been”.

No. 3. “Has there been acquiescence in material violations of the restrictions to such extent that prior to the institution of this suit there had been general acquiescence in violation of restrictions, so as to amount to a general abandonment of the restrictions?” Answer: “There has been”.

No. 4. “In view of the changed circumstances, conditions, and surroundings, is plaintiff (Alcorn) entitled to have the restrictions removed as to his lots?” Answer: “He is entitled”.

No. 5. “Would removal of the restrictions as to Alcorn’s lots materially affect adversely the use of Defendants’ property for residential purposes?” Answer: “It would affect adversely”.

All except Special Issue No. 5 were plaintiff’s issues, and Special Issue No. 5 was an issue of the defendants. In the Charge of the Court, appropriate burdens were made a part of each inquiry.

By his first point of error Alcorn complains because the judgment is contrary to the verdict. Under this and other points Alcorn seeks to have this Court reverse the judgment of the trial court and render a contrary judgment for him under his prayer to have the restrictions removed as applicable to the use to which he desired to put his lots. He directs our attention to the answers to Special Issues Nos. 3 and 4. It is because of these answers he contends that he was entitled to judgment on the verdict of the jury. He advises that the trial court, necessarily, disregarded these answers by its judgment. Obviously that is true.

As applied to the court’s disregard of the answer to Special Issue No. 4, the court could not have erred for the question posed was one of law. In entering judgment on the verdict of the jury a court may, without motion, disregard immaterial, evidentiary and voluntary findings of the jury, as well as findings on issues erroneously submitted, such as special issues on questions of law. 57 Tex.Jur.2d, p. 308, “Trial”, § 560 “(Conclusiveness of findings) —Power of court to disregard”.

There was no motion by the lot owners to disregard the answer returned in behalf of Alcorn to Special Issue No. 3. The inquiry by the issue and the answer returned thereto was supported by the evidence. The court disregarded such answer on its own motion. When supported by evidence, findings on submitted or material issues of fact are binding upon the court, which must render judgment on the findings unless they are set aside. 57 Tex. Jur.2d, p. 307, “Trial”, § 559, “Conclusiveness of findings”. The trial court has no authority, because of other apparently conflicting jury findings, to disregard a finding with legal significance which has support by evidence. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup., 1966); T.R.C.P. 290, “(Verdict) — Definition and Substance”.

However, for the same reasons the court could not have disregarded the jury’s answer to Special Issue No. 2. It was a plaintiff’s issue, and it might have been intended that Special Issue No. 3 be submitted conditioned upon a finding for Al-corn in answer to Special Issue No. 2. It was not submitted conditionally. It was answered. The answer to neither issue could be disregarded for purposes of entry of judgment.

Alcorn desires that we disregard the jury’s answer to Special Issue No. 2 as reconcilable and not in conflict with the answer to Special Issue No. 3, or, as an issue upon which he had the burden of proof so that the jury’s negative answer merely demonstrated that as applied thereto he failed to discharge such burden, though discharging similar burden as applied to Special Issue No. 3. In other words, Alcorn’s contention must be that there has been no affirmative finding that there has not been material violations of the restrictions within the subdivision which materially affect the other lots. The jury was instructed to find in answer to Special Issue No. 2 either that “There has been” or “There has not been”. The jury’s answer was “There has not been”. We construe the finding as an affirmative finding that the violations, indisputably established, were insufficient to materially affect the other lots, their value or their desirability for use for residential purposes, etc.

Therefore we have a conflict in the answers to Special Issues Nos. 2 and 3, neither of which may be disregarded, by the rule of Howard v. Howard, 102 S.W.2d 473, 475 (Tex.Civ.App., Austin, 1937, error refused), approved in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949). “ ‘The test in such (a) case is, whether taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.’ ”

In the instant case we see no way to reconcile a finding that there had been no material violations of the restrictions which materially affect the other lots in Gillaspia Addition with a finding that there had been such acquiescence in material violations of the restrictions to such extent that all the other lot owners had impliedly consented to a general abandonment of the restrictions.

No judgment could have been properly entered. A judgment for either party would have been contrary to the verdict by reason of the conflicting findings. The point complaining that judgment is contrary to the verdict is sustained.

By our ruling another trial will be required. There is no reason to discuss the remaining points of error. We have severally examined them and overrule all of them as either without merit or presenting no occasion for reversing the judgment.

Judgment of the trial court is reversed, with the cause remanded.


author: REYNOLDS, Justice.

text:
    Norene M. SMITH, Appellant, v. COFFEE’S SHOP FOR BOYS AND MEN, INC., Appellee.
    No. 8646.
    Court of Civil Appeals of Texas, Amarillo.
    March 29, 1976.

      Robert E. Barfield, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Don L. Patterson, Amarillo, for appellee.
   REYNOLDS, Justice.

Our 22 March 1976 opinion is withdrawn sua sponte and in lieu thereof, this opinion is substituted.

This summary judgment appeal presents the new question whether Vernon’s Ann. Civ.St. art. 8307c, § 1, providing that

No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim . . . under the Texas Workmen’s Compensation Act

gives an ex-employee a cause of action for the ex-employer’s refusal to later re-employ the ex-employee whose discharge was for the reason prohibited by the statute. We hold that it does not and affirm the summary judgment.

The pleadings are: by oral agreement, Norene M. Smith worked as a salaried tailor for Coffee’s Shop for Boys and Men, Inc., from mid-1969 until about 9 February 1972 when she suffered an ankle injury while in the course of her employment. Smith filed a claim for workmen’s compensation benefits and it was compromised and settled on 26 October 1972. After Smith was advised by her physician that she was physically able to return to work, Coffee’s asked her to return to work immediately, but she took a two week vacation, the time for which had accrued prior to her injury. Coffee’s hired a part-time, and then a full-time, replacement. At the expiration of her vacation about 17 October 1972, Smith requested, but Coffee’s refused, permission for her to return to work. Thereafter, Smith made several requests, the latest in the spring of 1974, to be permitted to return to work, but each request was refused.

On 11 March 1975, Smith filed this suit, seeking damages for Coffee’s refusal to permit her to return to work because she had filed a compensation claim. Coffee’s moved for summary judgment on the ground that Smith’s pleadings showed her claim was barred by the two-year statute of limitation, V.A.C.S. art. 5526, § 4. The trial court, finding the pleadings show that Smith’s claim is barred by limitation as a matter of law, rendered summary judgment, decreeing that Smith take nothing.

Conceding that the two-year statute of limitation bars any claim for the discriminatory discharge prohibited by the statute, Smith contends that by the use of the language “or in any other manner discriminate against an employee,” the legislature intended to enlarge the statutory coverage to include the refusal to reemploy a former employee wrongfully discharged. To illustrate the legislature’s intent, Smith relies upon cases concerning the unlawful employment practices prohibited by the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Our concern, however, is the Texas statute proscribing certain discriminations against “any employee,” and not the federal act prohibiting certain practices against “any individual.” What the Texas Legislature intended is revealed primarily by the language of its statute, Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935), particularly when the legislature has defined its own terms. City of San Antonio v. Handley, 308 S.W.2d 608, 610 (Tex.Civ.App.-San Antonio 1957, writ ref’d).

Phrasing art. 8307c, § 1, in plain and unambiguous language, the legislature has said that no employer may discharge or otherwise discriminate against an employee because that employee in good faith filed a compensation claim. This proviso is a part of the Texas Workmen’s Compensation Act, V.A.C.S. art. 8306 et seq., in which the word “employee” is used to mean, subject to qualifications not material here, “every person in the service of another under any contract of hire.” Art. 8309, § 1. The statutory definition of “employee” comports with its ordinary meaning: “one employed by another; one who works for wages or salary in the service of an employer.”. Webster’s New International Dictionary (2nd Ed.). Thus, clearly, the acts statutorily condemned are those occurring during the employment, and not afterwards. To hold otherwise would ascribe to the word “employee” a new meaning and one that is different from both the statutory definition and the ordinary meaning. Such a holding would both thwart the legislative intent, Eppstein v. State, 105 Tex. 35, 143 S.W. 144, 146 (1912), and give the statute a strained or technical construction, Calvert v. Phillips Chemical Co., 268 S.W.2d 478, 481 (Tex.Civ. App.-Austin 1954, writ ref’d), neither of which we are at liberty to do. 53 Tex. Jur.2d Statutes § 151.

Smith’s cause of action under the statute was for discriminatory discharge and not for Coffee’s refusal to later re-employ her. Her pleadings show that her statutory cause of action is barred, and summary judgment was proper when she pleaded herself out of court. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974).

The judgment is affirmed.


author: JAMES, Justice.

text:
    HARDY STREET INVESTORS et al., Appellants, v. TEXAS WATER RIGHTS COMMISSION, Appellee.
    No. 5521.
    Court of Civil Appeals of Texas, Waco.
    March 31, 1976.
    Rehearing Denied April 29, 1976.

      Sears and Burns, C. Charles Dippel, Houston, for appellants.
    John L. Hill, Atty. Gen., G. Charles Kobdish, Asst. Atty. Gen., Austin, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from an order of an administrative body, involving the substantial evidence rule.

Plaintiff-Appellants Hardy Street Investors, a partnership, and Kingsbridge Development Corporation challenged an order of Defendant-Appellee Texas Water Rights Commission as being invalid and void because it was not supported by substantial evidence. After review of the facts, the trial court’s judgment upheld the validity of the order, from which Plaintiff-Appellants appeal. We affirm.

Inverness Forest Improvement District (hereinafter called “District”) applied to Defendant-Appellee Texas Water Rights Commission (hereinafter called “Commission”) for its approval of a drainage project and the issuance of $170,000.00 of the District’s bonds to finance it, under the provisions of Article 51.421 of the Texas Water Code pertaining to water control and improvement districts. The District is a water control and improvement district operating and existing pursuant to Chapter 51, Texas Water Code, and Article XVI, Section 59, of the Texas Constitution. Plaintiff-Appellants Hardy Street Investors and Kingsbridge Development Corporation each own a tract of land within the District.

The District on May 10, 1974, filed an application to the Commission for approval of an engineering project and the economic feasibility of the issuance of bonds therefor. The application consisted of the engineer’s report, several maps, and the plans and .specifications for the proposed construction. The application and supporting engineer’s report originally requested approval of $125,000 in bonds, but this request was subsequently increased to $170,000 because of revised cost figures. The engineering project as submitted to the Commission was designed to correct a condition of advancing erosion which threatened to destroy and contaminate the District’s sewage lift station and water well, as well as destroy the lateral support for a county road.

The District’s application and engineering report as submitted to the Commission incorporate into the cost figures a calculation of two (2) years prepaid interest at the rate of 7% per annum. The contract documents involved for the proposed construction work contemplate a sixty calendar day “actual construction period” after the District’s engineer has given the contractor written notice to commence work. C. R. Miertschin, Director of the District Division of the Ap-pellee Commission, testified that six months would be a reasonable, actual construction time for the project from the beginning to the completion thereof.

Staff members of the Commission made an on-site inspection on June 5, 1974, and after review of the engineer’s report, the Commission determined that two years prepaid interest at 7% per annum was reasonable, as applied for by the District, and in its order approving the project authorized such interest. “Prepaid interest” is an amount of money derived from the actual sale of the bonds which is placed in an interest and sinking fund to meet debt service requirements pending completion and commencement of operation of the facilities being constructed and may not be used for any other purpose by the District.

The Commission’s order appealed from is dated September 30, 1974 and in effect approves the District’s application in the following language:

“Now Therefore, Be it Resolved by the Texas Water Rights Commission that the engineering plans, specifications, and estimate of costs in the sum of $170,000 for the project of Inverness Forest Utility District be and the same are hereby approved, and the issuance of $170,000 of bonds for the purpose of financing said improvements in accordance with said plans, specifications, contract documents and engineering reports as filed heretofore with the Commission is hereby approved.”

As heretofore stated, the trial court after reviewing the facts held that the Commission’s order was “valid and supported by substantial evidence,” from which judgment Plaintiff-Appellants appeal asserting in effect that the Commission’s order is not supported by substantial evidence.

The crux of Appellants’ argument is this: The construction period of the project was sixty days, and in any event not more than six months; yet the project calls for two years interest at 7% per annum; that if six months’ interest is allowed instead of two years the project would total only $152,150 instead of $170,000; that the project calls for $17,850 too much interest and therefore that the Commission’s order is arbitrary and unreasonable and should be held void. We do not agree with this contention and accordingly overrule Appellant’s point of error and affirm the trial court’s judgment.

This appeal is governed by the substantial evidence rule.. The order of the Defendant-Appellee Texas Water Rights Commission is presumed to be legal and valid, and the burden is on those attacking the order (here, the Plaintiff-Appellants) to show that the order is not reasonably supported by substantial evidence. City of San Antonio v. Texas Water Commission (Tex.Sup.1966) 407 S.W.2d 752; Gibraltar Savings and Loan Association v. Falkner (Tex.Sup.1963) 371 S.W.2d 548; Hewlett v. Texas Alcoholic Beverage Comm. (Waco CA 1973) 492 S.W.2d 686, NRE.

The test in determining whether an administrative decision finds reasonable support in substantial evidence is whether the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action. Railroad Commission v. Shell Oil Co. (1942) 139 Tex. 66, 161 S.W.2d 1022; Trapp v. Shell Oil Co. (1946) 145 Tex. 323, 198 S.W.2d 424; Southern Canal Co. v. State Board of Water Engineers (1958) 159 Tex. 227, 318 S.W.2d 619; State ex rel. Blooming Grove I.S.D. v. County Board of School Trustees (Waco CA 1960) 334 S.W.2d 588, NRE; Bichsel v. Strickland (Waco CA 1963) 371 S.W.2d 785, no writ history; Cruz v. City of San Antonio (Waco CA 1969) 440 S.W.2d 924, no writ history.

Under the record before us, we cannot say that the Commission’s order was not reasonably supported by substantial evidence.

The witness Miertschin (Director of the Districts Division of the Commission) testified that two years interest is a usual and normal part of all engineering projects; that with reference to the length of construction time, there are many variables involved, such as weather and other things some of which are under the control of the contractor and some of which are not. He further testified that the length of time of construction is not controlling upon the staff’s consideration and recommendation to the Commission on the amount of prepaid interest, although it is considered along with other things. He said: “This has been discussed by the Commission at length but it is felt like this is something that is needed and is legal.” When questioned whether the two years interest was excessive in the light of construction time of sixty days to six months, Miertschin replied: “Let me answer you this way; the District is about to issue additional bonds and thereby have an increase in their debt service requirement. During this interim when they first began to repay an increased amount due to the new bond sale that during this interim period there may very well be a need for some funds in their debt service requirement that they had not anticipated. This is a means of providing the District with insurance that they will be able to meet their debt service requirement once they sell their bonds.” He testified that the prepaid interest money “goes into the interest and sinking fund. Along with the engineer’s economic evaluation of this project he has set up a tax evaluation schedule and he has made various projections as to growth within the District. The required taxes are based upon this projected growth. This is always a variable in a district development and should not the growth take place as projected there very well may be not as much money in their interest and sinking fund as they had anticipated.”

Article 51.409, Texas Water Code, provides that the District “may issue bonds to include:

(7) the estimated discount on the bonds;

(9) an amount to pay interest on the bonds during the period stated in the engineer’s report, which shall not be more than three years from the time the bonds are sold; ”

Article 51.410 provides that “the engineer’s report shall contain ... an estimate of the time required to complete the improvements to the degree to which they may provide service.”

When we consider the question of reasonableness of the Commission’s order, we are impelled to the conclusion that the Commission was dealing with variables and uncertainties as to the amount of interest money needed, and was trying to make sure that there would be enough money on hand to take care of the debt service requirements. In other words, if any error were to be made, the Commission’s error was to be on the side of caution.

It is a matter of common knowledge that interest rates fluctuate substantially over a short period of time; that financial market conditions change rapidly and this affects the timing of bond sales; also that actual construction time estimates set out in engineering reports and construction contracts are at best tentative and cannot be taken at face value. Moreover, there is no connection between the time the bonds are sold and the time actual construction begins and ends. As soon as the bonds are sold they begin to earn interest, whether construction is completed or not. Bonds may be sold months in advance of the commencement of construction because of favorable financial market conditions, in which event the District will owe interest regardless of whether construction has begun, is in progress, or is completed.

What the Commission did know was that if they provided for two little interest, the District might eventually default on its bond repayment, or else be forced to impose an excessive tax rate upon its constituents.

In the light of this record as a whole, we are of the opinion and hold that the Commission’s order is reasonably supported by substantial evidence. As our Supreme Court said in Marrs v. Railroad Commission (1944) 142 Tex. 293, 177 S.W.2d 941, regarding administrative orders, “a reasonable margin will be allowed for differences in opinion and errors in judgment.”

Judgment of the trial court is affirmed.

AFFIRMED.


author: KLINGEMAN, Justice.

text:
    Joe RODRIGUEZ, Appellant, v. Frank BOLADO, Appellee.
    No. 15543.
    Court of Civil Appeals of Texas, San Antonio.
    March 31, 1976.
    Rehearing Denied April 21, 1976.

      Stephen G. Cochran, Marc J. Schnall, San Antonio, for appellant.
    Kenneth Beanland, San Antonio, for ap-pellee.
   KLINGEMAN, Justice.

This is an appeal by Joe Rodriguez from an interlocutory order refusing to grant a temporary injunction. Trial was to the court, who on October 10, 1975, entered its order denying appellant’s application for a temporary injunction.

Appellee, Frank Bolado, is the owner of certain property located in Bexar County, Texas, which appellant rented from him on an oral month to month tenancy agreement, which commenced in September 1974. The house rented consists of a living room, two bedrooms, a bathroom, and a kitchen, with the agreed rental being $65.00 a month. Some time after the inception of such tenancy agreement a controversy arose between appellant and appellee as to the condition of the house. Appellant maintains that it is uninhabitable and needs a great deal of repair. In June of 1975 appellant filed a complaint with the Building and Planning Administration of the City of San Antonio concerning alleged defects in the premises. An inspection was made by a housing inspector for the City of San Antonio, who found various defects, and appellee was notified on July 2,1975, to correct such defects or violations. Such inspector testified that he later made additional inspections but that such defects or violations had not been cured. During such period of time appellant became delinquent in the payment of his rent.

On September 3, 1975, appellant filed a suit in the District Court of Bexar County against Frank Bolado seeking a declaratory judgment, a temporary restraining order, a temporary injunction, and a permanent injunction. In such suit he seeks: (a) a temporary injunction pending disposition of the cause enjoining and restraining appellee from seeking to evict appellant for nonpayment of rent pending repairs being made to the premises, or in retaliation for appellant’s complaints concerning the conditions of the premises; (b) a permanent injunction restraining appellee from renting property which fails to meet the implied warranty of habitability, or property which fails to comply with the provisions of the Minimum Housing Code of the City of San Antonio; (c) a declaratory judgment that appellant is obligated to pay his full rent only after appellee complies with his duty to substantially obey the Housing Code and maintain the premises in a habitable condition.

On September 30,1975, appellant filed an application for a temporary restraining order and temporary injunction in which he asserts that after he filed his suit for declaratory judgment he was served with a notice to quit and a complaint in a foreeable entry and detainer suit; that such action by appellee was in retaliation for appellant’s complaint to the Building and Planning Administration of the City of San Antonio and for appellant bringing a suit for declaratory judgment. In this proceeding he asks the court to enjoin defendant from proceeding with the foreeable entry and detainer suit seeking to evict plaintiff in retaliation for plaintiff’s complaints. A temporary restraining order was issued by the court pending the hearing on the temporary injunction, and the hearing set for October 10,1975. On October 10,1975, such a hearing was held with all parties being present, and at such time the District Court denied plaintiff’s application for a temporary injunction.

Appellant asserts four points of error: (1) the trial court abused its discretion in refusing to grant an injunction because retaliatory eviction is constitutionally proscribed; (2) the trial court abused its discretion in refusing to grant an injunction because the intent of the Housing Code and public policy prohibit retaliatory eviction; (3) the trial court violated principles of equity and thus abused its discretion in refusing to grant the injunction; (4) the trial court abused its discretion by not finding a retaliatory motive on the part of appellee.

In suits for temporary injunctions, the trial court has broad discretion to grant or deny the injunction, and its judgment will not be overturned on appeal unless the record discloses a clear abuse of discretion. City of Spring Valley v. Southwestern Bell Telephone Co., 484 S.W.2d 579 (Tex.1972); State v. Cook United, Inc., 469 S.W.2d 709 (Tex.1971); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952).

This being a non-jury case, the trial judge was the sole judge of the credibility of the witnesses and the weight to be given their testimony. A trial courts’ findings of fact will be upheld on appeal unless manifestly erroneous, and will be overruled only where unsupported by any evidence of probative force, or when they are so against the great weight and preponderance of the evidence as to be manifestly wrong. Heard v. City of Dallas, 456 S.W.2d 440 (Tex.Civ.App.-Dallas 1970, writ ref’d n. r. e.); Kolbo v. Blair, 379 S.W.2d 125 (Tex.Civ.App.-Corpus Christi 1964, writ ref’d n. r. e.); Bavousett v. Bradshaw, 332 S.W.2d 155 (Tex.Civ.App.-Amarillo 1959, writ ref'd n. r. e.); 4 Tex.Jur.2d Appeal and Error-Civil Cases, Sec. 783.

Although appellant made various contentions in his original pleadings, it is clear from appellant’s brief that on this appeal he seeks a holding on the limited question of whether a landlord can be prevented from exercising his statutory remedy of eviction if it is shown that such eviction is in retaliation for a tenant’s reporting Housing Code violations to the proper authorities. He urges that (a) retaliatory eviction is constitutionally proscribed; (b) the intent of the Housing Code and public policy prohibit retaliatory eviction; (c) such an eviction violates principles of equity; and (d) the trial court abused its discretion in not finding a retaliatory motive on the part of appellee.

Appellant freely admits that the landlord, under the type of tenancy here involved, could terminate the lease and evict the tenant for no reason at all, but he argues long and persuasively that, even so, it is the law, or should be the law, in this State that the eviction cannot be premised on a retaliatory motive. In support of such contention, he cites a number of out of State cases, most of which involve government housing and state action.

However, in order for such doctrine to be applicable, there must be a retaliatory eviction. The trial court here found that the notice to leave the premises was not given in retaliation of any act of the tenant, and that the evidence is insufficient as a matter of law to show that the termination of the lease by the landlord was in retaliation for any act or conduct on the part of the tenant.

We have carefully reviewed all of the evidence. Appellant produced no evidence that such eviction was in retaliation for his reporting Housing Code violations, but relies on the following circumstances: (a) that in June of 1975 appellant filed a complaint with the Building and Planning Administration concerning defects in the house, and subsequent to such complaint an inspector found defects in the house, and that a demand for correction of such defects was sent to appellee by the Building and Planning Administration; (b) that on September 3, 1975, appellant filed a suit against appellee seeking to abate or reduce the rent until the appellee made repairs, and that shortly thereafter appellant received a notice to quit the premises; (c) testimony by appellant that Mrs. Bolado called him and told him that the sheriff had been by her house demanding that Bolado repair the house; that appellant had no business reporting it to anyone; and that she was going to see what she could do; and that he would be sorry.

Appellant urges that the above circumstances establish that the eviction was solely in retaliation for his complaint to the Building and Planning Administration, and also bringing a suit against appellee.

There is other evidence, facts, and circumstances which the court could properly rely on in holding that there was no retaliatory eviction: (a) the tenant had become delinquent in the payment of rent; (b) the relationship between the landlord and tenant had been deteriorating for some time, and there were problems involving the tenancy prior to appellant’s complaint to the Housing Commission; (c) evidence that the landlord had previously received a higher rental for the premises and that in making the oral agreement with Rodriguez had reduced the rent because of the condition of the house; (d) evidence that despite such agreement, the tenant made numerous requests for repairs, and some were made at some expense; (e) testimony by Mrs. Rodriguez that in the last week of August Bolado came over and told them he wanted them to move because he was going to sell the house.

Appellant failed to meet his burden of proof that appellee’s attempted eviction was in retaliation for appellant’s complaint to the housing authorities.

Under the record, there is evidence of probative value to support the trial court’s finding that the termination of the lease by appellee was not in retaliation for any act or conduct on the part of appellant, and such finding is sufficiently supported by the record.

Since we have held that the trial court’s finding that the eviction was not for retaliatory purposes is sufficiently supported by the evidence, we do not reach the question of whether retaliatory eviction is illegal in the State of Texas.

The trial court did not abuse its discretion in refusing to grant the temporary injunction sought by appellant.

The judgment is affirmed.

      . Findings of Fact: (a) Bolado is the owner of the property in question, and that he, as landlord, and Rodriguez, as tenant, reached an understanding that Rodriguez would rent the property from month to month, and be a tenant at will; (b) Prior to reaching the rental agreement, Rodriguez inspected the premises with the landlord and also viewed and understood the defects in the house as they were pointed out by Bolado, and that the normal rent for said premises was reduced by Bolado as a result of the defects, and this was a part of the understanding of the parties; (c) Rodriguez, with full knowledge of the defects, entered into an oral rental understanding and took possession of the premises from September 24, 1974 until the date of the hearing, and to the present time, which exceeds a period of one year; (d) For a few months Rodriguez has not paid the rent due on the rental agreement, and in mid-August 1975 the tenancy at will was terminated by notice given to Rodriguez by Bolado; (e) Thereafter a forceable entry and detainer suit was filed by Bolado against Rodriguez in the justice court; (f) Rodriguez filed a complaint with the City as to the minimum building standards even though Rodriguez knew of the defects when he entered upon the property; (g) Past due rent has not been paid; (h) The notice to leave the premises was not given in retaliation of any act of Rodriguez and was not done with malice. The trial court also filed Conclusions of Law as follows: (a) The evidence was insufficient as a matter of law to show that the termination of the lease by Bolado was in retaliation of any act or conduct on the part of Rodriguez; (b) Petitioner is not without an adequate remedy of law; (c) Rodriguez will not suffer irreparable injuries upon denial of in-junctive relief as requested by him; (d) No implied warranty or express warranty existed as to the habitability of such premises; (e) The landlord has a right to use his property as he sees fit by giving the proper notice to the tenant at will, and that Rodriguez was a tenant at will under the facts outlined above.