author: OSBORN, Justice. PRESLAR, Chief Justice

text:
    James Albert BLACKMON and Jack Arthur Blackmon, Appellants, v. Gaines Franklin PARKER, Appellee.
    No. 6554.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.

      Allan L. Poage, El Paso, for appellants.
    Pearson & Caballero, Ray Pearson, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves a Declaratory Judgment in which the trial Court held that Appellee owns a fee simple absolute to certain land and improvements located thereon in the City of El Paso. We affirm. The parties will be-referred to as they appeared in the trial Court.

In about 1942, Mrs. Cathalene Blackmon, the mother of the Defendants, James and Jack Blackmon, purchased a home at 3222 Hamilton, El Paso, Texas. Approximately a year later, she married the Plaintiff, Gaines Franklin Parker. The family lived in this house until her death in 1958. During that time, the mortgage was paid down to about $500.00 and was eventually paid off by Mr. Parker. Mrs. Parker’s will provided:

“After the payment of all my just debts, I give, devise, and bequeath all of the residue of my property, whether real, personal, or mixed, of whatsoever kind or nature, and wheresoever situate, to my husband, GAINES FRANKLIN PARKER, with the proviso that after my death, if my husband, GAINES FRANKLIN PARKER, should sell the house we lived in at the time of my death, then I give and bequeath what would have been my share of the proceeds of such a sale, had I lived, to my sons, JAMES ALBERT BLACKMON and JACK ARTHUR BLACKMON.”

Following their mother’s death, both boys expressed a desire that their stepfather retain the house for himself, and in May, 1958, they executed an instrument which recites:

“ * * * for and in consideration of the love and affection which we have and bear unto GAINES FRANKLIN PARKER, and other good and valuable consideration, do GRANT, SELL AND CONVEY unto the said GAINES FRANKLIN PARKER of El Paso County, Texas, all of our right, title and interest in the estate of CATHALENE CRAVEY PARKER, of any property of whatsoever kind or wheresoever situate that would be bequeathed or devised to us by her will as a result of her death on the 30th day of March, 1958, TO HAVE AND TO HOLD together with all and singular, the rights and appurtenances thereto in anywise belonging, unto the said GAINES FRANKLIN PARKER, his heirs or assigns forev- * * * » er.

This instrument closes with a special warranty clause.

There now being a dispute between the two boys and their stepfather, Plaintiff filed this suit alleging in the first paragraph:

“ * * * The real property, ownership of which is the subject matter of this suit to remove encumbrances upon the title and to quiet title to such land, lies wholly in El Paso County, Texas.”

Plaintiff further asserted in his pleadings that if the property description in the deed was not sufficient to convey the real property in question, then the deed should be reformed to correctly and fully describe the property. He also pled a parole gift and his continued occupancy with valuable improvements to perfect title, and he additionally asserted title under the three, five, and ten-year Statutes of Limitation. It was further alleged that the contingent right to a payment of proceeds was assigned and transferred by the deed. He prayed for a “ * * * judgment declaring that the Deed in question suffices as a conveyance of all right, title, and interest in and to the subject real estate of the Defendants, JAMES ALBERT BLACKMON and JACK ARTHUR BLACKMON, to the Plaintiff, GAINES FRANKLIN PARKER, and that the Defendants do not now own any right to the property or expectancy from any proceeds on the sale of the property.” Thus the two issues raised concern title to real estate and proceeds of any sale.

Defendants assert there is no jus-ticiable dispute for determination under the Declaratory Judgment Act, because there has been no sale of the property, and without a sale there are no proceeds for a determination as to ownership. A declaratory judgment is one which declares the rights and duties or the status of the parties. Art. 2524-1, Tex.Rev.Civ.Stat. There must exist a justiciable controversy between the parties in order for the Court to have jurisdiction over the issue in dispute. Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566 (Tex.Civ.App. — Tyler 1974, writ ref’d n. r. e.). The Act specifically provides for construction of deeds and wills by those whose rights or legal relations are affected by such instruments. Art. 2524-1, Sec. 2, Tex.Rev.Civ.Stat.Ann.

In this case, there does exist a real issue as to the title to the land, which the trial Court determined, and a real issue as to the ownership of the proceeds of any sale, if a sale be made, and as to this issue, the judgment is silent. In effect, the judgment provides that the deed dated May 2, 1958, “ * * * conveys the interest of Defendants to that certain land and the improvement located thereon, * * * [which is described by lot, block and addition] to Plaintiff * * *, thereby vesting in said GAINES FRANKLIN PARKER, the fee simple absolute to said property.” The judgment further decrees “that Defendants have divested themselves of any interest in said property * * Of course, “said property” can only be that which appears in the earlier legal description and to which there is no reference to “proceeds of any sale.” Without regard to the question of title, there is a present controversy as to the proceeds from any sale, and a judgment speaking to that issue would resolve the controversy between these parties and be a final determination of the issue. Thus, we conclude that there did exist a justiciable controversy in the trial Court and it had jurisdiction to decide the issue in a declaratory judgment. Even without regard to the deed, we conclude that the title issue was properly decided because under the will Defendants had no interest in the land but merely an interest in the proceeds derived from any future sale. Conway v. Estes, 346 S.W.2d 374 (Tex.Civ.App. — Fort Worth 1961, no writ). Appellants’ first and second points of error are overruled.

Defendants next contend that the trial Court erred in failing to grant their motion to amend the judgment to provide' that said judgment was without prejudice as to their making a claim for a share of the proceeds if the property is ever sold. While perhaps the trial Court should have amended the judgment to specifically provide for ownership of the proceeds of any sale, since the issue has not been decided adversely to the Defendants, we find no harm to Appellants in the trial Court’s decision to deny the motion and reversible error is not presented. Rule 434, Tex.R.Civ.P. Under the holding in Vance v. Wilson, 382 S.W.2d 107 (Tex.1964), where a party seeks two types of recovery (title to land and proceeds of any sale) and the case is prosecuted to a final judgment, that judgment, while awarding plaintiff a recovery on one item (title to land), must be construed as denying the prayer for recovery on the other item (proceeds of any sale). In Chem-Gas Engineers, Inc. v. Texas Asphalt & Refining Company, 395 S.W.2d 690 (Tex.Civ.App.— Waco 1965, writ ref’d n. r. e.), the Court said:

“ ‘The general rule in Texas is that all issues presented by the pleadings are disposed of by the judgment unless the contrary appears from the fact thereof,’ and ‘[W]here a claim is not expressly disposed of by judgment although raised by pleading, the judgment will be construed as denying relief upon such claim, and the judgment will be considered as being final and appealable.’ Vance v. Wilson, Tex., 382 S.W.2d 107, 108, 109.”

A similar result was reached in Carte v. McKenzie, 430 S.W.2d 559 (Tex.Civ.App.— Waco 1968, writ ref’d n. r. e.), where a plea of res judicata was raised in a suit as a result of a judgment in a prior suit which had awarded possession of leased premises to the plaintiff, but made no mention of a claim for conversion of personal property. The Court said:

“While the 1963 judgment did not expressly dispose of the personal property issue, it was raised by the pleadings. In such case the judgment will be construed as denying relief upon such claim (here that the personalty had been converted). See Vance v. Wilson, Tex., 382 S.W.2d 107.”

Point of error No. Ill is overruled.

Defendants next complain of the trial Court’s refusal to make findings of fact as requested in their request for additional findings. The trial Court’s original conclusions of law provide in part:

“3. The Court concludes the Plaintiff herein has absolute title to the real estate in question, free and clear of any claims of the Defendants.”

Defendants then requested a “finding that describes with particularity the claim or claims of the Defendants, as set out in Conclusion No. 3.” While the Court did file additional findings, it did not, as such, “describe with particularity the claim or claims” of the Defendants. Nevertheless, we find no reversible error since Defendants acknowledge that they make no claim to title to the property described in the judgment, and the issue as to the proceeds of any sale has not been decided adversely to Defendants. Rule 434, Tex.R.Civ.P.

Point of error No. IV is overruled.

The Defendants’ last two points of error also complain with regard to the entry of a judgment which does not dispose of the question of “proceeds of the sale.” Again, we conclude that there is no showing of any reversible error since that issue has not been decided adversely to the Defendants.

Points of error V and VI are overruled.

We conclude that under the judgment entered by the trial Court, Mr. Parker has fee simple title to the real estate and improvements. But the judgment of the trial Court having made no mention of the proceeds of any future sale, we must hold that that issue has been decided adversely to the Plaintiff, and if Mr. Parker sells the property during his lifetime, the Defendants will be entitled to a share of the proceeds.

The judgment of the trial Court is affirmed.

PRESLAR, Chief Justice

(concurring and dissenting).

I concur in the affirmance of the trial Court’s judgment, but must respectfully dissent on the holding that the proceeds of sale go to the Defendants. The majority opinion applies the rule that where you ask for two things and the Court only gives you one, its silence as to the other means that it is denied. In this case, they say that the Court was silent on the matter of the proceeds of sale of the house. Granted, the judgment did not use the words “proceeds of sale,” but the Court disposed of that issue when it rendered judgment. This, because that was the subject of the lawsuit.

That was what the Court decided when it construed the instrument by which the sons assigned “all of our right, title and interest in the estate of CATHALENE CRAVEY PARKER, of any property of whatsoever kind or wheresoever situate that would be bequeathed or devised to us by her will * * *.” Under the record in this case, it is a strained construction of the Court’s judgment to make an affirmative award to the sons who were Defendants.

The mother left the sons her share of the proceeds if the house was ever sold. They made an assignment to their stepfather. The problem arose as to whether that assignment included the proceeds. The parties went to Court to determine that question. When the Court ruled, it answered that question — regardless of the language used — because that was the only problem between these people. It was the problem that they brought to Court. It could be nothing more because that is all the sons got under the will — the proceeds of sale. That is all that cap logically be involved, it is the only problem these people had, and it is the problem they went to Court asking for a declaratory judgment on. They attached the will and the instrument of assignment and asked the Court for a construction.

A problem is created because the pleadings of the Plaintiff went further than the declaratory relief sought and pled matters of title to the house with counts of a trespass to try title nature. These were sur-plusage to the suit because no title was involved. These excessive matters pleaded are but trees which obscure the forest — the problem between these people — the subject of their lawsuit. The criterion is the substance rather than the form of action which entitles a party to any relief for which he shows a lawful reason. Ellison v. McGlaun, 482 S.W.2d 304 (Tex.Civ.App. — Amarillo 1972, writ ref’d n. r. e.). The substance of this controversy is who gets the proceeds— were they assigned? If we do not put form over substance, we must conclude that issue was the one before the Court and decided by it of necessity when it rendered judgment.

The rule of law as to two causes of action relied on in the majority opinion is not applicable here because if two causes of action could be said to exist, there was but one basis for determination in the judgment; that was a construction of the two instruments involved. As quoted in the majority opinion, the judgment recited that the instrument of assignment, the “deed”, conveyed title “fee simple absolute.” But, it is important to note that that finding was not based on the matters pleaded in the nature of trespass to try title. Rather, the judgment specifically reads that it is construing the instrument of assignment which the Court said was a “deed” vesting title in the Plaintiff. Thus, the Court construed the instrument of assignment in favor of the Plaintiff. In that, it answered the question of the effect of the assignment on the proceeds of sale. Incident to that finding was a recitation of title, which by poor draftsmanship is made to appear as an issue decided, or in fact the principal issue decided. But, as we have seen, that was not the subject matter of the suit.

Following the paragraph in the judgment which speaks of title, there is a second separate paragraph by which the Court says “It is further ORDERED, ADJUDGED AND DECREED that Defendants have divested themselves of any interest in said property, and costs of Court should be charged against Defendants.” In the writer’s opinion, that second paragraph is enough to relieve the judgment of the claim that it is silent on the proceeds of sale question. If the language alone does not suffice, the implication is that the Defendants signed everything away.

The writer’s construction of the judgment is bolstered by the fact that after its entry, the Defendants filed a written motion asking the Court to amend the judgment to provide that it was without prejudice to their making a claim for a share of the proceeds in the event of a sale. The Court by written order refused to make the amendment. To me, this is the Court’s explanation of its judgment to mean that it is contrary to the requested relief. Otherwise, it would have granted the motion to amend. Ordinarily, we would not be able to go outside of an unambiguous judgment for its construction, but the Defendants as Appellants have assigned error in the Court’s overruling their motion.

I would overrule that point of error, thereby holding that the judgment disposes of the question of the proceeds of sale in favor of the Plaintiff.

There is yet another reason why the judgment should not be construed as awarding any proceeds of sale to the Defendants; it recites that “fee simple absolute” title is vested in the Plaintiff by the Defendants’ Deed. This is the most comprehensive estate recognized by law. “The quantum of interest of which the owner of a fee simple is vested is expressed by the term ‘perfect’ ownership.” 22 Tex.Jur.2d, Estates, Sec. 3. It is clear of any qualification or condition. 4 Texas Practice, Land Titles, Lange, Sec. 348, Fee Simple Title (1961). Such a title would appear to exclude any claim by another for a portion of the proceeds of sale.

I would construe the judgment as awarding the proceeds of sale to the Plaintiff.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Bernie BRAY, d/b/a Airline Wrecker Service, Appellant, v. Billy CURTIS, Jr., Appellee.
    No. 1133.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 9, 1976.
    Rehearing Denied Dec. 30, 1976.

      Richard W. Crews, Jr., Corpus Christi, for appellant.
    Jack P. Kelso, Corpus Christi, for appel-lee.
   OPINION

NYE, Chief Justice.

This is a suit for damages by Billy Curtis, Jr. under the Deceptive Trade Practices Act and a counterclaim by Bernie Bray, d/b/a Airline Wrecker Service, for towing and storage charges on Curtis’ car and for foreclosure of a lien on the car for such charges. The trial court entered judgment after a jury trial, unsatisfactory to both parties. Whereupon both Bray and Curtis have appealed to this Court.

During the summer of 1975, Curtis was being pursued by a police officer on Padre Island near Corpus Christi. Curtis was driving a Ford Ranger pick-up truck. He eventually ended up in the surf near Bob Hall Pier on Padre Island. The police officer arrested Curtis and charged him with D.W.I. The officer then called his dispatcher and asked that a wrecker be summoned to remove the pick-up truck from the surf. Bray’s Airline Wrecker Service responded to this request, pulled the truck from the surf and towed it to his place of business where it was stored.

The following day, Curtis went to Bray’s place of business to get his truck. He was told that he must pay $75.00 for the towing fee and $1.00 for storage. The next day, Curtis returned to the Airline Wrecker Service place of business and offered Bray’s wife $35.00 for the release of the truck. This offer was refused and Curtis made no further attempt to obtain the release of his truck until the present suit was filed alleging unconscionable conduct on the part of Bray’s Airline Wrecker Service in charging an unreasonable amount for towing the vehicle. Curtis alternatively pled that Bray had unlawfully converted his pick-up truck to his own use. Curtis sought damages under the Deceptive Trade Practices Act in the amount of $735.00, or in the alternative, for the reasonable rental value for the loss of use of his vehicle for 162 days.

Bray denied Curtis’ claim for damages and filed a cross-action seeking $75.00 for his towing fee, $1.00 per day for storage and foreclosure of his lien under Articles 5502, 5503 and Article 9.310 of the Business and Commerce Code. In addition, he sought attorney’s fees of $150.00 for the collection of the service charges and $750.00 in attorney’s fees for the defense of Curtis’ suit under the Deceptive Trade Practices claim.

The trial was to a jury. Upon the conclusion of the presentation of the evidence, the jury found as follows:

1. That the $75.00 charge for wrecker service was not unreasonable.

2. That $75.00 was a reasonable towing charge.

3. That the reasonable market value of the truck was $500.00.

4. That Bernie Bray’s actions in charging the wrecker service fee were not unconscionable.

5. That Bernie Bray’s action in keeping possession of the truck until the wrecker service fee was paid was not unconscionable.

6. That Billy Curtis did not bring a groundless lawsuit or a harassing lawsuit.

7. That $675.00 was a reasonable attorney’s fees for appellant’s attorney.

8. That the reasonable value of the use of a similar truck for the period in question was $1,950.00.

Based on these findings by the jury, the trial judge entered a judgment giving Curtis possession of his truck, and ordered Curtis to pay Bray the $75.00 towing charge. The trial judge disregarded the jury’s answers to special issues 3 (market value of the truck), 7 (attorney’s fees in the amount of $675.00), and 8 (reasonable value of the loss of use of the pick-up truck, $1,950.00). The trial court denied all other relief sought by both parties.

The main question presented by Bray’s points of error and Curtis’ cross-points of error can be determined by deciding whether or not the Bray’s Airline Wrecker Service had a possessory lien on the Curtis’ pick-up truck for the towing and storage charges. Bray alleges the existence of a lien under three different theories: 1) by statutory lien; 2) by an equitable lien; and 3) by a common law lien.

Article 5502, Tex.Rev.Civ.Stat.Ann., states in part:

“Proprietors of livery or public stables shall have a special lien . . . Upon such carriages, buggies or other vehicles as may have been placed in their care, for the amount of the charges against the same; . . .” (Emphasis supplied.)

Historically, the Courts of Texas have modernized the old statutes and constitutional provisions and have updated them to apply to modern vehicles and situations. It is clear that the intent of this statute is to give those who store vehicles, a lien, not only for their storage charges, but also for the amount of charges that are against the vehicle. This, we believe, would also include the towing of the vehicle to the place for storage.

It is undisputed that the law enforcement officer directed Bray, through his dispatcher, to pull the vehicle from the surf and tow it to Bray’s property for safekeeping. Article 6701d, § 94, Tex.Rev.Civ.Stat.Ann., authorizes an arresting officer to remove a vehicle from the scene of the arrest when the driver must be taken before a magistrate. See also Article 14.06, Tex.Code Crim.Proc.Ann., Article 2.13, Tex.Code Crim.Proc.Ann. and Article 6701d, § 21. In addition, the “Texas Abandoned Motor Vehicle Act”, Article 6687-9, § 6, authorizes a law enforcement officer to impound and store abandoned vehicles and a garagekeeper to enforce his lien for storage. Section 6 of that Act specifically requires garage owners to report vehicles left with them more than 10 days. This Act goes on to say: “. . . Except for the termination of claim for storage for failure to report an abandoned motor vehicle, nothing in this section shall be construed to impair any lien of a garagekeeper under the laws of this State.”

In addition, Article 5506, Tex.Rev.Civ.Stat.Ann., provides:

“Nothing in this title shall be construed or considered as in any manner impairing or affecting the right of parties to create liens by special contract or agreement, nor shall it in any manner affect or impair other liens arising at common law or in equity, or by any statute of this State, or any other lien not treated of under this title.”

As part of the privilege of driving a vehicle in this State, a licensed driver, impliedly agrees to allow a peace officer to have his vehicle towed and stored when the driver either commits some statutory offense or even when such vehicle becomes immobilized and it requires the officer to remove either the driver from his vehicle or his vehicle from the scene of an accident. Otherwise, these vehicles would constitute a hazard to traffic and would be subject to theft, vandalism or in the case at bar destruction by the elements.

Curtis cites a number of out of state cases which hold that towing and/or storage by a garagekeeper would not entitle him to a lien for his services. In addition, Curtis argues that he did not give his expressed consent for such services. The out of state cases cited by Curtis are not applicable because of the absence of a similar statute granting a lien such as Article 5502. Although Curtis did not give, or he was unable to give his expressed consent as the case might have been, the statute (Article 5502) clearly authorizes a lien where the garagekeeper came into possession of the vehicle lawfully. This was the exact case which is before us.

Additionally, Bray had an equitable lien for both the towing and storage charges. An equitable lien is recognized in Texas when the surrounding circumstance indicates that the parties to the transaction intended that certain property would secure the payment of a debt. Citizens Co-op Gin v. United States, 427 F.2d 692 (5th Cir. 1970); Williams v. Greer, 122 S.W.2d 247 (Tex.Civ.App. — Dallas 1938, no writ). The fundamental element necessary to create an equitable lien is the existence of an express or implied contract and it does not arise except out of a contract between the parties. Barfield v. Henderson, 471 S.W.2d 633 (Tex.Civ.App. — Corpus Christi 1971, writ ref’d n. r. e.); Bradley v. Straus-Frank Company, 414 S.W.2d 504 (Tex.Civ.App.— Dallas 1967, no writ); Batson v. Coley & Wilson, 59 S.W.2d 445 (Tex.Civ.App. — Waco 1933, no writ); Vivion v. Nicholson, 54 Tex.Civ.App. 43, 116 S.W. 386 (1909, no writ). An equitable lien secured by an implied agreement can be applied in this case because of the relationship of the parties and the circumstances of their dealings. Courts of equity will apply the relations of the parties and circumstances of their dealings in establishing a lien based on rights and justice. The First National Bank in Big Spring v. Conner, 320 S.W.2d 391 (Tex.Civ.App. — Amarillo 1959, writ ref’d n. r. e.).

One further note concerning the lien under Article 5502. This type of lien is a possessory lien since the statute does not provide for any other method of perfecting the lien by recordation or otherwise. The trial court erred in giving Curtis possession of the vehicle before the charges for the wrecker service and storage had been paid by Curtis.

Finally, Curtis complains of the trial court’s refusal to award him $1,950.00 in damages for the conversion of his vehicle. Since Bray was in proper legal possession, no conversion existed. This point of error is overruled.

In his final point of error, Bray complains of the action of the trial court in failing to award him the $675.00 which the jury found to be reasonable attorney’s fees. This award by the jury was a combination of attorney’s fees in: 1) prosecuting the cross-action for towing and storage charges; 2) for defense of the Deceptive Trade Practices Act claim; and 3) for the defense of the conversion claim. During the trial, the only evidence presented by Bray was that his attorney had spent 15 hours working on this case and that his attorney charged $45.00 per hour. Bray submitted special issue No. 7 to the jury which asked what was a reasonable attorney’s fees for the services performed in the case by Bray’s attorney. The jury responded with the figure of $675.00. Curtis objected to the submission of the special issue (Nog 7) stating in effect that the evidence failed to specify what attorney’s fees were incurred by Bray in his affirmative action to collect for his services and his defense of the Deceptive Trade Practices claim and the conversion. This objection was good and should have been sustained by the trial court.

The question presented by Bray’s point of error is whether or not Bray was entitled to collect attorney’s fees for: 1) the cross-action for collection of a claim for labor and services; 2) defense of a Deceptive Trade Practices Act claim; and 3) defense of a claim for conversion although the evidence failed to specify the amount of time spent on each aspect of the lawsuit. Article 2226, Tex.Rev.Civ.Stat.Ann. (Supp.1976), states, in part, that: [a]ny person . . . having a valid claim against a person . for services rendered, labor done, . may present the same to such persons . and if, . the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons . he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees. . . .” Bray’s cross-action for his towing charges was clearly the type of action contemplated by Article 2226. Actually, Curtis admits that Bray is entitled to fees for these services.

Section 17.50(c), Tex.Bus. & Comm.Code Ann. (Supp.1976), Competition & Trade Practices — “Relief for Consumers”, states that when an action is brought by a consumer which is groundless, in bad faith, or for the purpose of harassment, the court may award the defendant reasonable attorney’s fees.

In response to special issue No. 6, the jury found that the suit brought by Curtis was not groundless or brought by Curtis for the purpose of harassment. Therefore, Bray was not entitled to recover attorney’s fees for the defense of the Deceptive Trade Practices claim brought against him by Curtis. In addition, there is absolutely no authority by which a successful defendant in a conversion suit may recover his attorney’s fees for the defense of such a suit.

It is a well settled rule of law that unless attorney’s fees are provided by statute, or by a contract between the parties, such fees are not recoverable against an adversary either in an action in tort or a suit upon a contract. Attorney’s fees incurred in prosecuting a suit for, or defending against a wrong, are not ordinarily recoverable as actual damages. Buck v. Johnson, 495 S.W.2d 291 (Tex.Civ.App.— Waco 1973, no writ). See New Amsterdam Casualty Company v. Texas Industries, Inc., 414 S.W. 914 (Tex.Sup.1967); Innes v. Webb, 538 S.W.2d 237 (Tex.Civ.App. — Corpus Christi 1976, writ ref’d n. r. e.).

Actually, two special issues on attorney’s fees should have: been submitted to the jury. The first would have been predicated on an affirmative answer to special issue No. 6 which would have authorized collection of attorney’s fees in defense of a groundless Deceptive Trade Practice claim. The second issue would have been a separate issue on attorney’s fees incurred in the collection of fees for services rendered (special issue No. 2). There was no evidence of what was a reasonable attorney’s fees for the specific work performed in each category. As was stated .earlier, the only evidence of attorney’s fees was that the appellant’s attorney spent 15 hours in preparation and trial of the whole case. Bray did not offer specific evidence of how much his attorney’s time was spent in the area for which Bray would have been entitled to collect attorney’s fees.

Although the trial court erred in not sustaining Curtis’ objection to special issue No. 7, and in submitting the issue to the jury, he later corrected this error by disregarding the jury’s answer to the issue and in not awarding any attorney’s fees to Bray in the judgment. Bray’s point of error No. 4 is overruled.

The undisputed evidence was that the storage charge of $1.00 per day was reasonable. The judgment of the trial court is, therefore, REVERSED AND the cause is REMANDED with instructions to enter judgment for the amount of the storage fee ($75.00) and for the storage charges in the amount of $1.00 per day during such time that Bray stored the vehicle. The trial court shall enter its further order placing Curtis’ vehicle in the possession of Bray until such judgment for towing and storage charges have been paid. Costs are assessed two-thirds (⅜) against Curtis and one-third (⅛) against Bray.

AFFIRMED IN PART and REVERSED AND REMANDED WITH INSTRUCTIONS IN PART.:


author: DUNAGAN, Chief Justice.

text:
    In the Interest of Brenda Jo STUART, a minor.
    No. 990.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 9, 1976.
    Rehearing Denied Dec. 30, 1976.

      Donald L. Kraemer, Huntsville, Eugene M. McElyea, Crockett, for appellant.
    H. L. Morgan, Crockett, for appellee.
   DUNAGAN, Chief Justice.

This matter originated in the 3rd Judicial District Court of Houston County, Texas by Marvin Q. Stuart, appellant herein, by the filing of an application for writ of habeas corpus seeking to regain possession of Brenda Jo Stuart, a 14 year old female child of whom he is the sole surviving parent. Respondent in such action is Benford D. Stuart, brother of petitioner and uncle of the child, who has had physical possession and custody of the child since 1971. Prior to this action there have never been any court orders of any kind in any court regarding the child.

Appellee Benford D. Stuart joined issue in the habeas corpus matter by filing his answer in opposition thereto. He alleged therein that Marvin Q. Stuart was not a proper, fit and suitable person to have the physical custody and possession of the child and set out his reasons therefor. He prayed that the petition for writ of habeas corpus be denied as not in the child’s best interest, for such other orders as to the court may seem just and proper; that he have judgment in accordance with his affirmative pleading for termination of parental rights, for adoption of the child, and for general relief.

Simultaneously with the filing of his answer appellee and his wife filed a petition to terminate appellant’s parental rights to the child and for adoption. In connection with this petition the appellee prayed for the appointment of a managing conservator for the child, for further orders of the court in the best interest of the child, and for general relief. Appellant filed a general denial to this petition.

After a hearing the court entered an order denying appellant’s petition for writ of habeas corpus and appointed Benford D. Stuart temporary managing conservator of the person of saiid Brenda Jo Stuart, a minor; and ordered that appellant have the right of visitation with said minor at reasonable times and places, as temporary pos-sessory conservator, pending further orders of the court. The order did not dispose of the petition for termination of parental rights and custody'.

At the outset we are met with ap-pellee’s contention that this court is without jurisdiction becausé the order is not an ap-pealable one as it is a temporary order, that it is not a final judgment and does not dispose of all the 1 matters in controversy between the parties.

Tex. Family Code Ann. sec. 11.11(b) provides that “Temporary orders under this section are governed by the rules governing temporary restraining orders and temporary injunctions in civil cases generally.” An appeal from an order granting a temporary injunction is appealable. Article 4662, Tex.Rev.Civ.Stat.Ann.; Rule 385(d), Texas Rules of Civil Procedure; City of Farmers Branch v. Hawnco, Inc., 435 S.W.2d 288, 292 (Tex.Civ.App. — Dallas 1968, writ ref’d n. r. e.); Wheelis v. Wheelis, 226 S.W.2d 224, 226 (Tex.Civ.App. — Fort Worth 1950, n. w. h.); Janelli v. Bond, 148 Tex. 416, 225 S.W.2d 824, 826 (1950). “An appellate court has jurisdiction of an appeal only from an interlocutory order authorized to be appealed ..” Laurie v. Stabel, 482 S.W.2d 652, 654 (Tex.Civ.App. — Amarillo 1972, n. w. h.). The effect of Art. 11.11(b) of the Tex. Family Code Ann. is to authorize an appeal from a temporary order such as the order before us. Therefore, this court does have jurisdiction of the appeal. Appellee’s contention is overruled.

Appellant in his two points of error argues that because his application for a writ of habeas corpus is governed exclusively by sec. 14.10(e) of the Tex. Family Code Ann., the temporary orders ancillary thereto are mandatorily governed by sec. 14.10(f) of the Tex. Family Code Ann.

At the time of the hearing on the application for a writ of habeas corpus appellee and wife’s petition for termination of the parental rights of appellant, Marvin Q. Stuart, to Brenda Jo Stuart, a minor, and for adoption of said minor child was pending. This petition, however, came within applicable provisions of Chapter 15 of the Tex. Family Code Ann.

Therefore, appellant argues “that there is no pleading in this cause filed and no action pending pursuant to this chapter (Chapter 14) of the Family Code, which would authorize the court to enter a temporary order,” that appellee and wife’s petition involves termination of parental rights and adoption and was “not proper to be considered for any purpose.”

There have as yet been no reported cases construing Section 14.10(e) or (f) of the Tex. Family Code Ann. These subsections relate to habeas corpus proceedings in such cases, as the one at bar, where there has been no judicial determination of custody on the merits.

Section 14.10(e) deals solely with proceedings where the right to custody has never been decided by a court such as the ease before us. This section says that under such circumstances a parent has a prima facie right to possession of a child which is in the physical custody of a third party who is not a parent.

We do not believe that the rightness or wrongness of the trial court’s ruling on the habeas corpus petition is determinative of the case in its present posture. At the time of the hearing on the petition for a writ of habeas corpus there was pending a suit which would affect the parent-child relationship brought under sec. 11.01, et seq., of the Family Code. The custody of the child is presently under an order for temporary managing conservatorship issued out of that proceeding, as specifically authorized by sec. 11.11 of the Code.

We believe such a proceeding is the type contemplated by sec. 14.10(f) of the Family Code. In regard to the validity of the temporary order, appellant does not contend that the trial court was without authority to enter it or that it is unsupported by evidence so as to be an abuse of discretion. To the contrary, there is ample evidence as follows to support the conclusion that it is in the best interest of the child that she not be in the custody of her natural father.

On cross examination of appellant he admitted that in 1968 he was indicted and convicted in Harris County, Texas, for the possession of hashish and was sentenced to serve a term of 30 years of confinement in the Texas Department of Corrections. He was paroled in 1975. At the time of this hearing he was still on parole. He also testified that while in the penitentiary, as a result of the issuance of bench warrants he appeared in court and pleaded guilty to indictments in 10 other cases and received a sentence of 5 years in each case to run concurrently. Eleven other cases were dismissed.

In 1968, about 12 days before appellant was sentenced, his wife (natural mother of Brenda Jo) died. At the time of her death Brenda Jo was 6½ years old. After the death of the child’s mother, appellant’s mother (paternal grandmother of the child) took custody of Brenda Jo and kept her a month or less, at which time appellant and his mother made arrangements with the sister of appellant and appellee to care for her. Appellee assumed physical custody of Brenda Jo from his sister in August 1971 where she has since continuously lived. Brenda Jo has regularly attended public school at Grapeland, Texas, and at the time of the trial of this matter in April 1976 she was in the 8th grade.

Brenda Jo testified that she did not want to live with appellant; that she had remembered her life with him before he went to the penitentiary; that she could remember when he would leave her with a babysitter for three months at a time; and that he beat her mother up one time, and that she has no feeling for him. Clearly, under this record, the trial court was justified in its implied finding that the best interest of the child would be served by leaving the custody of the child with appellee until a hearing and determination of the petition for the termination of appellant’s parental rights to the child and its adoption.

Moreover, we do not believe that subsec- . tion (f) of section 14.10 of the Family Code should be interpreted to prohibit a court from issuing ex parte temporary orders under the authority given all District Courts to make orders to protect children under their grant of original jurisdiction and general control over minors. Art. 5, sec. 8, The Constitution of the State of Texas, Vernon’s Ann.Statutes; Gray v. State, 508 S.W.2d 454, 457 (Tex.Civ.App. — Texarkana 1974, writ ref’d n. r. e.); Page v. Sherrill, 415 S.W.2d 642 (Tex.1967); and Smith, Commentary on Title 2, Tex. Family Code Symposium Supplement, 8 Tex.Tech L.Rev. 90 (1976).

No findings of fact or conclusions of law were filed. The law is, under such condition of the record, that the appellate court must affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W. 2d 339 (Tex.1968); Crawford v. Boyd, 453 S.W.2d 232 (Tex.Civ.App. — Fort Worth 1970, writ ref’d n. r. e.). In such a case thie trial court’s judgment implies that all necessary fact findings were made by the trial court in support of the judgment and in determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto, the appellate court can consider only that evidence that is most favorable to the issue and must disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Crawford v. Boyd, supra. With the above rules in mind, the temporary order being both valid and supported by evidence, whether the trial court rightfully or wrongfully decided on the habeas corpus issue is academic since the. child’s present status as to custody rests in the valid temporary order issued out of the pending termination suit. Appellant’s points 1 and 2 are, therefore, overruled. See Interest of Barrera, 531 S.W.2d 908 (Tex.Civ.App. — Amarillo 1975, n. w. h.).

Judgment affirmed.

      . “If the right to possession of a child is not governed by a court order, the court in a habe-as corpus proceeding involving the right of possession of the child shall compel return of the child to the relator if, and only if, it finds that the relator has a superior right to possession of the child by virtue of the rights, privileges, duties, and powers of a parent as set forth in Section 12.04 of this code.

      . “The court shall disregard any motion for temporary or permanent adjudication relating to the possession of the child in a habeas corpus proceeding brought under Subsection (e) of this section unless at the time of the hearing an action is pending under this chapter, in which case the court may proceed to issue any temporary order as provided by Section 11.11 of this code.”

      . Specifically, we reject the argument that the phrase “. . . this chapter . . .’’as used in sec. 14.10(f), limits the provisions of that subsection to actions brought under Chapter 14 of the Family Code. Because of the subsection’s reference back to Sec. 11.11, we believe that the legislature intended to include in the phrase . .an action is pending under this chapter . . . ” any suit affecting the parent-child relationship brought pursuant to Title 2 of the Family Code. See Jones “Child Custody Modifications and The Family Code,” 27 Baylor Law Review 725, 735-737 (1975); Smith, Commentary on Title 2, Tex. Family Code Symposium Supplement, 8 Texas Tech Law Review 8.91.

      .Sec. 14.07(a), Tex. Family Code, which is a part of Chapter 14 of said code, reads in part: “The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child. .


author: McCLOUD, Chief Justice.

text:
    Bill P. COGDELL, Appellant, v. The FORT WORTH NATIONAL BANK et al., Appellees.
    No. 4941.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.
    Gloria T. Svanas, Svanas & Svanas, Odessa, for appellant.
    Robert M. Randolph, Law, Snakard, Brown & Gambill, George Christie, Pope, Hardwicke, Christie & Montgomery, Fort Worth, Lawson K. Stiff, Snyder, James R. Alexander, Lubbock, S. Tom Morris, Gibson Ochsner, Adkins, Harlan & Hankins, Amarillo, W. 0. Shafer, Shafer, Gilliland, Davis, Bunton & McCollum, Odessa, for appellees.
   McCLOUD, Chief Justice.

This summary judgment case involves the question of whether, and to what extent, a settlement agreement and release of claims by a trustee binds a nonconsenting beneficiary of the trust.

D. M. Cogdell died on November 15,1964. His will was admitted to probate in Cause No. 2422 in the County Court of Scurry County, Texas, on November 30, 1964, and David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cogdell Stiff were appointed independent co-executors. Under paragraph III of the will certain specific properties were left to David Martin Cog-dell, Jr., William Munsey Cogdell, and Joni-sue Cogdell Stiff. The residue of the estate passed under paragraph IV as follows: one-tenth (Vioth) to The Fort Worth National Bank as trustee for the Marion P. Cogdell Trust, of which Marion P. Cogdell was the primary beneficiary; one-tenth (Vioth) to The Fort Worth National Bank as trustee for the Charlotte Cogdell Etgen Trust, of which Charlotte Cogdell Etgen was the primary beneficiary; and four-fifths (Vsths) in equal shares to David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cog-dell Stiff. The two trusts were for a term of ten (10) years after the death of D. M. Cogdell, and the trustee was given all of the powers of a trustee as defined in the Texas Trust Act, together with certain other specific powers.

On August 5, 1968, The Fort Worth National Bank, as trustee for the benefit of Marion P. Cogdell and Charlotte Cogdell Etgen, filed its original petition in Cause No. 9730, District Court of Scurry County, Texas, against David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cog-dell Stiff, Independent Executors of the Estate of D. M. Cogdell, deceased, seeking an accounting, will construction, and distribution of the estate. Marion and Charlotte were also named as defendants. The will construction issues were severed and the severed cause appealed to this court. Stiff v. Fort Worth National Bank, 486 S.W.2d 859 (Tex.Civ.App.-Eastland 1972, writ ref. n. r. e.). Since the filing of the original petition on August 5, 1968, the Cogdell Estate has been involved in much litigation. See: In re Estate of Cogdell, 426 S.W.2d 586 (Tex.Civ.App.-Eastland 1968, writ ref. n. r. e.); Forbes v. Cogdell, 452 S.W.2d 568 (Tex.Civ.App.-Eastland 1970, writ granted); Cogdell v. Williams, 461 S.W.2d 187 (Tex.Civ.App.-Eastland 1970, no writ); Stiff v. Fort Worth National Bank, 486 S.W.2d 859 (Tex.Civ.App.-Eastland 1972, writ ref. n. r. e.); Cogdell v. Fort Worth National Bank, 536 S.W.2d 257 (Tex.Civ.App.-Eastland 1976, writ dism’d); Cogdell v. Cogdell, 537 S.W.2d 111 (Tex.Civ.App.-Eastland 1976, writ filed); Cogdell v. Fort Worth National Bank, 537 S.W.2d 304 (Tex.Civ.App.-Fort Worth 1976, writ filed).

Accountings were filed in Cause No. 9730 by the “Majority Executors,” David Martin Cogdell, Jr., and William Munsey Cogdell. The bank as trustee filed numerous objections to the accountings and also sought damages against the three executors for unlawful and improper acts committed during the administration of the estate. Marion P. Cogdell, individually, filed objections to the accountings and sought damages against the executors, both in their individual and representative capacities, for unlawful and improper acts committed during the administration of the estate. Both the bank as trustee and Marion P. Cogdell, individually, alleged the executors failed to pay debts owed the estate, mishandled estate funds and properties, engaged in fraudulent self-dealing acts, and breached fiduciary duties. David Martin Cogdell, Jr., and William Munsey Cogdell filed a cross action against the bank in its individual capacity and as trustee. Jonisue Cogdell Stiff filed objections to the accountings filed by the majority executors and also a cross action against David Martin Cogdell, Jr., and William Munsey Cogdell.

On December 31, 1973, the bank in its individual capacity and as trustee for the Marion P. Cogdell Trust and the Charlotte Cogdell Etgen Trust entered into a conditional settlement agreement with David Martin Cogdell, Jr., and William Munsey Cogdell, individually and as the majority executors of the D. M. Cogdell Estate. Under the settlement agreement, the parties compromised and settled all matters of conflict between the parties including the estate accounting. After the conditional settlement agreement was entered into, the bank filed its “Trustee’s Petition for Instructions” which included the settlement agreement. The petition pointed out that the settlement agreement included a release and dismissal of the causes of action by David Martin Cogdell, Jr., and William Munsey Cogdell against the bank individually and as trustee, which circumstances created a potential conflict of interest and necessitated a court determination as to whether the settlement should be made. Marion P. Cogdell filed objections to the settlement agreement.

The court held an extensive hearing on the petition for instructions and the objections thereto, and on May 18,1974, rendered judgment approving the settlement agreement as being in the best interests for the trusts and beneficiaries, and instructed the trustee to consummate the agreement.

The judgment further provided:

“That the evidence which would be offered on the trial of this cause would be voluminous, complex and sharply conflicting; that if this cause is tried on the merits there exists the possibility that Trustee would recover a substantially greater amount than the amount of the settlement, but there is also the possibility that Trustee would recover a lesser amount or nothing and that, in fact, Trustee’s portion of the residuary estate of D. M. Cogdell could be charged with a portion of the Executors’ attorneys’ fees and with interest on excess distributions and distribution of stock, as set out in the Majority Executors’ accounting; that settlement negotiations have been conducted between Trustee and the Majority Executors at arms’ length and in good faith; that a trial on the merits of this cause would be extremely lengthy, complex and expensive; that Trustee has acted reasonably and properly in applying to the Court for instructions; that Trustee has acted reasonably and properly in negotiating and executing a Settlement Agreement deemed advantageous and beneficial to the Trusts and to the beneficiaries of the Trusts; and that the Settlement Agreement is advantageous and beneficial to the Trusts and to their beneficiaries.
It is, therefore, ORDERED, ADJUDGED and DECREED that:
A. The Port Worth National Bank, Trustee under the Will of D. M. Cogdell, Deceased, for the benefit of Marion P. Cogdell and for the benefit of Charlotte Cogdell Etgen is instructed to consummate said Settlement Agreement dated December 31, 1973, heretofore conditionally entered into between The Fort Worth National Bank, Individually, and as Trustee under the Will of D. M. Cog-dell, Deceased, and D. M. Cogdell, Jr. and W. M. Cogdell, Individually, and as Majority Executors of the Estate of D. M. Cogdell, and said Settlement Agreement is in all things approved as being for the best interest of the Trusts and their beneficiaries.
B. The following proceedings and issues in this Cause No. 9730 are hereby severed from said Cause No. 9730, and same shall be separately docketed as Cause No. 9730-A on the docket of this Court:
1) Trustee’s petition, all answers of all parties thereto; and all proceedings in connection therewith;
2) Trustee’s objections to the accounting of the Majority Executors, the answer thereto, and all proceedings in connection therewith; and
3) the cross-action of D. M. Cogdell, Jr. and W. M. Cogdell, Individually and as Majority Executors of the Estate of D. M. Cogdell, Deceased, against The Fort Worth National Bank, Trustee and The Fort Worth National Bank in its individual corporate capacity, all answers thereto, and all proceedings in connection therewith.
C. Any cause of action asserted by any beneficiary of the Trusts created under the will of D. M. Cogdell for the benefit of the Marion P. Cogdell Trust and for the benefit of the Charlotte Cog-dell Etgen Trust against D. M. Cogdell, Jr. and W. M. Cogdell Individually and as Majority Executors of the Estate of D. M. Cogdell and against the Estate of D. M. Cogdell be held in suspense until the judgment of the District Court instructing the Trustee to execute the Agreement shall become final.”

Following the entry of the May 18, 1974, judgment, Marion P. Cogdell, who had filed an answer to trustee’s petition for instructions, appealed Cause No. 9730, not 9730-A, to this court and in an unpublished opinion dated July 3, 1975, No. 4731, we dismissed the appeal because the judgment entered in Cause No. 9730 was not a final appealable judgment. On September 8,1975, the trustee and majority executors filed a certificate of “Consummation of Settlement,” stating the settlement agreement had been fully performed.

Thereafter, the court granted interlocutory summary judgments in favor of David Martin Cogdell, Jr., William Munsey Cog-dell, and Jonisue Cogdell Stiff, on the claims of malfeasance asserted by Marion P. Cogdell, the beneficiary of the Marion P. Cogdell Trust. The interlocutory summary judgments were incorporated into a final appealable judgment dated March 4, 1976. The claims and causes of action asserted by Marion P. Cogdell against the trustee, The Fort Worth National Bank, were transferred on a plea of privilege to Tarrant County-

Marion P. Cogdell, who is one and the same person as Bill P. Cogdell, has appealed.

Appellant, Marion P. Cogdell, contends the court erred in granting the summary judgments because genuine fact issues exist as to the fraud of the executors. Appellees, David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cogdell Stiff, argue that the trustee of the Marion P. Cogdell Trust had the power to, and did, settle and compromise all claims against the appellees. We agree.

Appellant’s sole right to standing as a party in this casé arises from the fact he was a beneficiary under the will. His rights are derivative rights under the trust. In paragraph IV of the will, the trustee was given all of the powers of a trustee under the Texas Trust Apt. Section 25 E of that Act, Article 7425b, Tex.Rev.Civ.Stat.Ann., provides:

“In the absencb of contrary or limiting provisions in the instrument creating the trust, or a subsequent order or decree of a court of competent jurisdiction, the trustee of an express trust is authorized:
E. To compromise, contest, arbitrate, or settle any and all claims of or against the trust estate ¡or the trustee as such. To abandon property deemed by the trustee burdensome or valueless.”

See also: 35 A.L.R.2d 967; Restatement of Trusts 2d, § 192; III Scott on Trusts § 192; Bogert, Trusts and Trustees, § 592.

The rule permitting a trustee to compromise and settle claims involving a trust is sound, otherwise, the administration of the trust would require litigation of every claim by or against the trust.

Here, the trustee also sought and received the approval of the court regarding the settlement agreement. Restatement of Trusts 2d, § 192, Comment (d), states:

“Application to the Court. If the trustee is in doubt whether he should compromise or submit to arbitration a claim, he may ask the instriiction of the court or he may agree thereto conditionally upon the subsequent approval of the court.”

See also: Herman v. Mueller, 314 Ill.App. 663, 42 N.E.2d 303 (1942); In re Ortiz’ Estate, 26 Del.Ch. 240, 27 A.2d 368; Redmond v. Commerce Trust Co., 144 F.2d 140 (8th Cir., 1944) cert. den’d, 323 U.S. 776, 65 S.Ct. 187, 89 L.Ed. 620 (1944); Wachovia Bank & Trust Co. v. Buchan, 261 N.C. 595, 135 S.E.2d 559 (1964).

Appellant argues that since Joni-sue Cogdell Stiff was not a party to the settlement agreement she in no event was released by the trustee. The record shows that all of the claims asserted by appellant and his trustee were based upon Stiff’s acts as an executor. On August 12, 1975, the court entered an order, on the trustee’s motion, dismissing with prejudice all claims asserted by the trustee against Jonisue Cog-dell Stiff, individually and as an executor of the D. M. Cogdell Estate. Appellant argues the trustee had no power to dismiss such claims because the ten year trust had terminated. The trustee has such powers and duties as are appropriate for the “winding” up of the trust. Kimble v. Baker, 285 S.W.2d 425 (Tex.Civ.App.-Eastland 1955, no writ); Cogdell v. Fort Worth National Bank, 537 S.W.2d 304 (Tex.Civ.App.-Fort Worth 1976, writ filed); Restatement of Trusts 2d, § 344; Bogert, Trusts and Trustees, § 1010.

The trustee had the power to release the claims against the appellees and appellant, as beneficiary of the trust, is bound by that action. Jones v. Jones, 7 N.E.2d 1015 (Mass.Sup.1937); Edelstein v. Old Colony Trust Company, 336 Mass. 659, 147 N.E.2d 193 (1958). If the trustee has acted improperly, then appellant may pursue his cause of action against the trustee for such conduct. As noted earlier, appellant’s action against his trustee has been transferred to Tarrant County.

Appellant also urges the court erred in ordering a severance in the May 18, 1974, judgment. We disagree. A trial court has wide discretion in severance matters. Rule 41, T.R.C.P.; Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956). In McGuire v. Commercial Union Insurance Company of New York, 431 S.W.2d 347 (Tex.1968), the court stated:

“. . . Rule 41, Texas Rules of Civil Procedure, provides that ‘any claim against a party may be severed and proceeded with separately.’ This rule refers to a claim which is a severable part of a controversy which involves more than one cause of action. Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438 (1944). Rule 41 grants the trial judge broad discretion in the matter of consolidation and severance of causes. Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959); Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955). The wrongful death action brought by Mrs. Pryor was a separate and distinct cause of action from the personal injury action brought by the McGuires. Since these causes were separate and distinct, each being such that it could be properly tried if it were the only claim in controversy, the two claims were properly severable under Rule 41. Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (1961). Because of the settlement of the Pryor claim, the severance did not result in duplicitous trials of interwoven or identical issues which might make a severance inappropriate under other circumstances . . . ”

The court did not abuse its discretion in ordering the severance.

Appellant asserts he was entitled to a jury trial in connection with the hearing on the Trustee’s Petition for Instructions. We disagree. Some of the factors to be considered in such a hearing were listed in In re Ortiz’ Estate, 26 Del.Ch. 240, 27 A.D.2d 368 (1942) as follows:

“ ‘(1) The probable validity of the claims.
‘(2) The apparent difficulties in enforcing the claims through the courts.
‘(3) The collectibility of any judgment recovered.
‘(4) The delay, expense and trouble of litigation.
‘(5) The amount of the compromise as compared with the amount and collecti-bility of a judgment.
‘(6) The views of the parties involved, pro and con.
‘Upon a consideration of these factors, a conclusion must be arrived at as to whether or not a compromise is for the best interests of the claimant.’ ”

The court in Alamo Title Company v. San Antonio Bar Association, 360 S.W.2d 814 (Tex.Civ.App.-Waco 1962, writ ref. n. r. e.) when confronted with the question of whether the appellant was entitlecl to a jury finding on the “reasonable probability or threat that the acts enjoined would be done in the future,” stated:

“We do not consider the question of likelihood of appellant’s resumption or continuation of the acts enjoined as being an ultimate issue of fact for the jury. Extensive search has failed to produce a decision suggesting a contrary conclusion. Although in this State the right of trial by jury is preserved in an equitable action, San Jacinto Oil Co. v. Culberson, 100 Tex. 462, 101 S.W. 197, only ultimate issues of fact are to be so determined; and this historically, for the purpose of informing the conscience of the chancellor. Although in Texas the findings on issues of fact are binding, equitable principles and the relief afforded by equity continue to be applied by the court itself, 1 Pomeroy, Equity, 5th ed., 808; Rule 693, Texas Rules of Civil Procedure; and see Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, syl. 22. A jury in equity, even under a blended system, does not decide the issue of expediency, necessity or propriety of equitable relief. If submitted, the issue would evoke only a conjectural and speculative surmise which, in our opinion, would not control the processes of equity. It was an element deducible from the circumstances for the court to consider in determining whether wrong or injury might be anticipated and whether chancery powers should be exercised. It constituted here, in effect, a mixed question of law and fact at most. . . .”

We hold the approval or disapproval of the settlement agreement was not a fact question to be determined by a jury.

Appellant further argues that the summary judgments in favor of appellees must be reversed because there is no summary judgment evidence. He relies upon the rules announced in Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961) and Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971). The cases are not controlling. Appellees do not rely upon the pleadings as proof of extrinsic facts. The pleadings merely shape the issues. The documents and orders relied upon by appellees were all a part of the trial court record in the cause being appealed. The court may properly consider the orders and motions which are a part of the record in the case. Horn v. Tuller, 524 S.W.2d 597 (Tex.Civ.App.-Houston (1st Dist.) 1975, no writ); Perry v. Little, 377 S.W.2d 765 (Tex.Civ.App.-Tyler 1964, writ ref. n. r. e.); Siegel v. McGavock Drilling Company, 530 S.W.2d 894 (Tex.Civ.App.-Amarillo 1975, writ ref. n. r. e.); Murray v. Texas Department of Public Safety, 461 S.W.2d 210 (Tex.Ciy.App.-Eastland 1970, no writ).

All points of error not specifically discussed herein have been considered and they are overruled.

Judgment of the trial court is affirmed.


text:
    In the Matter of the ESTATE of D. M. COGDELL, Deceased.
    No. 4929.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.

      Gloria Svanas, Svanas & Svanas, Odessa, for appellant.
    James R. Alexander, Lubbock, Lawson K. Stiff, Snyder, George Christie, Pope, Hard-wicke, Christie & Montgomery, Fort Worth, S. Tom Morris, Amarillo, for appellee.
   McCLOUD, Chief Justice.

Bill P. Cogdell, who is one and the same person as Marion P. Cogdell, filed a motion on June 9, 1975, in Cause No. 2422, Estate of D. M. Cogdell, Deceased, County Court of Scurry County, Texas, demanding that the Co-Independent Executors, David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cogdell Stiff, file an accounting in said cause pursuant to Section 149A, Texas Probate Code. Bill P. Cogdell on December 3,1975, filed a motion to require the Majority Independent Executors, David Martin Cogdell, Jr., and William Munsey Cogdell, to give bond. Jonisue Cogdell Stiff resigned as an executrix on February 20, 1975.

The three independent executors, David Martin Cogdell, Jr., William Munsey Cog-dell, and Jonisue Cogdell Stiff, filed pleas in abatement in response to the demand for an accounting. The trial court dismissed and denied the demand for an accounting, and dismissed and denied the motion to require bond. Bill P. Cogdell has appealed. We affirm.

D. M. Cogdell’s will was admitted to probate in Cause No. 9422 in the County Court of Scurry County, Texas, on November 30, 1964, and David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cogdell Stiff were appointed independent co-executors. Under the will one-tenth (l/10th) of the residue estate passed to The Fort Worth National Bank as trustee for the Marion P. Cogdell Trust.

An inventory, appraisement and list of claims were filed in Cause No. 2422 and, on July 25, 1967, appellant filed an “Application for Order Requiring Correction of Inventory and List of Claims, Partition and Distribution, and Bond.” He took a non-suit on that application on November 19, 1968.

On August 5, 1968, The Fort Worth National Bank, trustee under the will of D. M. Cogdell, deceased, for the benefit of Marion P. Cogdell filed suit in the District Court of Scurry County, Texas, in Cause No. 9730, seeking construction of the will, an accounting, and distribution of the estate. Appellant, Marion P. Cogdell, was joined as a defendant in that suit and he filed a cross action against the executors, also seeking a construction of the will and an accounting. The majority executors filed accountings in the district court case and both the trustee and appellant filed objections to the accountings.

The record conclusively shows that the complaint of appellant against the executors regarding an accounting was pending in Cause No. 9730 in the District Court of Scurry County, at the time the order was entered in the County Court in Cause No. 2422, dismissing appellant’s demand for an accounting.

For a full discussion of the litigation between these parties, we refer to our opinion of this date in Cause No. 4941, Bill P. Cogdell v. The Fort Worth National Bank, et al. See also: In re Estate of Cogdell, 426 S.W.2d 586 (Tex.Civ.App.-Eastland 1968, writ ref. n.r.e.); Forbes v. Cogdell, 452 S.W.2d 568 (Tex.Civ.App.-Eastland 1970, writ granted); Cogdell v. Williams, 461 S.W.2d 187 (Tex.Civ.App.-Eastland 1970, no writ); Stiff v. Fort Worth National Bank, 486 S.W.2d 859 (Tex.Civ.App.-Eastland 1972, writ ref. n.r.e.); Cogdell v. Forth Worth National Bank, 536 S.W.2d 257 (Tex.Civ.App.-Eastland 1976, writ dism’d); Cogdell v. Cogdell, 537 S.W.2d 111 (Tex.Civ.App.-Eastland 1976, writ filed); Cogdell v. Fort Worth National Bank, 537 S.W.2d 304 (Tex.Civ.App.-Fort Worth 1976, writ filed).

Appellant relies upon Section 149A of the Probate Code which provides in part:

“§ 149A. Accounting
(a) Interested Person May Demand Accounting. At any time after the expiration of fifteen months from the date a will appointing an independent executor is admitted to probate, any person interested in the estate may demand an accounting from the independent executor. The independent executor shall thereupon furnish to the person or persons making the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail:
1. The property belonging to the estate which has come into his hands as executor.
2. The disposition that has been made of such property.
3. The debts that have been paid.
4. The debts and expenses, if any, still owing by the estate.
5. The property of the estate, if any, still remaining in his hands.
6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the estate.
7. Such facts, if any, that show why the administration should not be closed and the estate distributed.
Any other interested person shall, upon demand, be entitled to a copy of any exhibit or accounting that has been made by an independent executor in compliance with this section.
(b) Enforcement of Demand. Should the independent executor not comply with a demand for an accounting authorized by this section within sixty days after receipt of the demand, the person making the demand may compel compliance by an action in the probate court or by a suit in the district court. After a hearing, the court shall enter an order requiring the accounting to be made at such time as it deems proper under the circumstances.” , (Emphasis added)

Prior to 1971, the Texas statutes contained no provision whereby an independent executor could be compelled to account in the county court.! The district court had exclusive jurisdiction of such proceedings. Jerrard v. McKenzie, 61 Tex. 40 (1894); O’Connor v. O’Connor, 320 S.W.2d 384 (Tex.Civ.App.-Dallas 1959, writ dism’d); Gonzalez v. Gonzalez, 309 S.W.2d 111 (Tex.Civ.App.-Fort Worth 1958, no writ); Toplitsky v. Toplitsky, 282 S.W.2d 254 (Tex.Civ.App.-Galveston 1955, writ ref. n.r.e.); Leach v. Leach, 208 S.W.2d 618 (Tex.Civ.App.-Galveston 1948, writ ref. n.r.e.). In 1971, the Legislature added Section 149A to the Texas Probate Code providing a statutory procedure whereby a person interested in an estate under independent administration could demand an accounting from the independent executor. In 1973, the Legislature further amended Section 149A by adding Subdivision (b) which provides that if the independent executor fails to comply with the demand for an accounting, the person making the demand may compel compliance by action in the probate court or district court. See Burke v. Satterfield, 525 S.W.2d 950 (Tex.1975).

Under the 1973 amendment of Section 149A, an action to compel an accounting may be filed either in the county court or district court, but when appellant filed his demand in the instant case in county court, the matter of accounting was in issue in the district court'and had been in issue in Cause No. 9730 for many years.

In Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974), the court said:

“The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926), Ex parte Lillard, 159 Tex. 18, 314 S.W .2d 800 (1958). Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court’s attention to the pendency of the prior suit by a plea in abatement . . .”

See also: Cogdell v. Cogdell, 537 S.W.2d 111 (Tex.Civ.App.-Eastland 1976, writ filed).

The court acted properly in dismissing appellant’s demand for an accounting.

In appellant’s second point of error he contends the court erred in dismissing his “motion to require the independent co-executors to post bond for failure to make the accounting required by statute.” We have held the court did not err in dismissing appellant’s demand for an accounting. The court denied appellant’s request that the executors give bond. Appellant has shown no error by the court’s denial of his request.

Judgment of the trial court is affirmed.


author: JAMES, Justice.

text:
    Bobby WILSON, d/b/a Wilson Salvage Company, Appellant, v. W. D. HAYS, Appellee.
    No. 5668.
    Court of Civil Appeals of Texas, Waco.
    Dec. 9, 1976.
    Rehearing Denied Jan. 6, 1977.
    Bill A. Davis, Lubbock, for appellant.
    David K. Brooks, Midland, for appellee.
   OPINION

JAMES, Justice.

This is a suit by the buyer against the seller for breach of an oral contract to sell and deliver used bricks. Trial was had to a jury, which rendered a verdict favorable to the Plaintiff buyer, pursuant to which verdict the trial court entered judgment. We affirm in part and reverse and render in part.

Plaintiff-Appellee W. D. Hays was in the business of buying and selling used building materials. Defendant-Appellant Bobby Wilson doing business as Wilson Salvage Co. was in the business of wrecking or demolishing buildings. In March 1972, Defendant Wilson was in the process of wrecking some buildings in Midland, Texas. Plaintiff Hays became interested in buying the used, uncleaned brick from Defendant Wilson’s demolition work. Whereupon, Hays and Wilson entered into an oral agreement whereby Wilson agreed to sell and deliver 600,000 used uncleaned bricks to Hays at a price of one cent per brick, and Hays agreed to buy said bricks at said price. Hays paid Wilson $6,000.00 in advance. Wilson delivered the uncleaned brick to a designated area where Hays had people hired to clean and stack the brick. Wilson delivered a lesser number of brick than 600,000, thereby precipitating this suit.

Plaintiff-Appellee Hays brought this suit for the return of the proportionate part of the purchase price paid for the bricks he did not get, plus damages. In answer to special issues the jury found:

(1) That Bobby Wilson orally agreed with Hays that he, Bobby Wilson, would sell and deliver to Hays at least 600,000 bricks at a price of one cent per brick;

(2) That Orville Wilson (a cousin and employee of Bobby Wilson) orally agreed with Hays that Bobby Wilson would sell and deliver to Hays at least 600,000 bricks at a price of one cent per brick;

(3) That Orville Wilson had the authority to make such agreement as agent of Bobby Wilson;

(4) That Orville Wilson had the apparent authority to make such agreement on behalf of Bobby Wilson;

(5) That Bobby Wilson knew or should have known that Orville Wilson had agreed to sell Hays at least 600,000 bricks at a price of one cent per brick, at the time he (Bobby Wilson) either assented to the sale or at the time he cashed the $6000.00 cashier’s check given by Hays;

(6) That Bobby Wilson did not deliver 600,000 uncleaned bricks to Hays (but)

(6A) delivered1 only 400,000 bricks to Hays;

(7) The market value of used bricks in Midland, Texas in April 1972, was five cents per brick;

(8) Hays suffered lost profits in the amount of $6250.00 by virtue of the failure of Bobby Wilson to deliver to Hays at least 600,000 bricks; [

(9) That Hays saved $2605.00 in expenses in consequence of the failure of Bobby Wilson to deliver to him (Hays) at least 600,000 bricks.

Pursuant to the jury verdict, the trial court entered judgment in favor of Plaintiff Hays against Defendant Bobby Wilson in the amount of $13,645.00, plus accrued interest at 6% per annum from and after May 15, 1972, up to Jan. 27, 1976, same being the date of the trial court’s judgment, plus interest at 9% per annum from and after the date of said judgment. From this judgment, Defendant Wilson appeals.

Appellant’s first and second points assert that the evidence is legally and factually insufficient to support the jury’s findings in answer to Special Issues Nos. 3 and 4. In other words, Appellant says there is no evidence, and insufficient evidence to support the jury’s findings that Orville Wilson had authority to make the agreement in question as the agent of Bobby Wilson (Issue No. 3), and the jury’s finding that Orville Wilson had apparent authority to make'such agreement in behalf of the Defendant (Issue No. 4).

We overrule these points, because these jury findings in answer to Special Issues Nos. 3 and 4 are immaterial. As stated hereinabove, the jury found in answer to Special Issue No. 1 that Bobby Wilson (himself) orally agreed with Hays that he would sell and deliver to Hays at least 600,000 bricks at a price of one cent per brick. This finding alone was sufficient to establish the existence of the contract in question, thereby rendering immaterial the question of whether Orville Wilson had actual or apparent authority to represent the Defendant Bobby Wilson. This jury’s finding in answer to Special Issue No. 1 is not attacked. However, without detailing the testimony, we will say from our examination of the record that the evidence is legally and factually sufficient to support the jury’s findings in response to Special Issues Nos. 3 and 4. Appellant’s points one and two are overruled.

By Appellant’s remaining three points, he challenges the $13,645.00 judgment upon the ground, among other things, that there is no evidence to support the jury’s findings in answer to Special Issues No. 8 (lost profits) and No. 9 (expenses). We sustain these points of error insofar as they assert no evidence to support the jury’s findings concerning lost profits less expenses, and in all other respects we overrule such points.

Plaintiff-Appellee Hays’s remedies and measures of damages as a buyer of goods in the case at bar are governed by Sections 2.711, 2.712, 2.713, and 2.715 of the Texas Business and Commerce Code. We herewith quote the portions of said sections that bear upon the case at bar:

“Sec. 2.711. Buyer’s Remedies in General; * * *.

(a) Where the seller fails to make delivery or repudiates * * * the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid

(1) ‘cover’ and have damages under the next section as to all the goods affected whether or not they have been identified to the contract; or

(2) recover damages for' non-delivery as provided in this chapter (Section 2.713).”

* * * * * *

“Section 2.712. ‘Cover’; Buyer’s Procurement of Substitute Goods

“(a) After a breach within the preceding section the buyer may ‘cover’ by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.

“(b) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (Section 2.715), but less expenses saved in consequence of the seller’s breach.

“(c) Failure of the buyer to effect cover within this section does not bar him from any other remedy.”

“Section 2.713. Buyer’s Damages for Non-Delivery or Repudiation

“(a) * * * the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this chapter (Sec. 2.715), but less expenses saved in consequence of the seller’s breach.”

******

“Section 2.715. Buyer’s Incidental and Consequential Damages

“(a) Incidental damages * * * (not applicable).

“(b) Consequential damages resulting from the seller’s breach include

(1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; * * * »

Let us analyze the verdict and judgment in the light of the foregoing statutory provisions. In the first place, it is established that Plaintiff Hays paid $6000.00 for 600,-000 used brick at the rate of one cent per brick, whereas he received only 400,000 brick. Therefore he paid $2000 for 200,000 brick that he never got, and he is thereby entitled to recover $2000.00 under Section 2.711 for “recovering so much of the price as has been paid.”

Next, under Section 2.713, he is entitled to damages for “non-delivery or repudiation,” and here his measure of damages is the difference between the market price and the contract price. The contract price of the 200,000 brick not delivered is established at $2000.00. The market price at the appropriate time and place of the undelivered brick was five cents per brick or $10,-000.00. This jury finding of market value (five cents per brick) although challenged by Appellant for legal and factual insufficiency, is amply supported by the evidence and is well within the range of probative testimony. Therefore under Section 2.713 and appropriate jury findings, Plaintiff is entitled to $8000.00 damages (or $10,000.00 market price less $2000.00 contract price) for non-delivery.

Now we come to the problem of “consequential damages * * * less expenses saved in consequence of the seller’s breach” as mentioned in Sec. 2.713 and which damages are provided for in Sec. 2.715. As stated, the jury found Hays sustained lost profits of $6250.00 (Special Issue No. 8) and saved $2605.00 expenses (No. 9), thereby suffering a lost profits net of $3645.00, which last-named amount was included in the $13,645.00 judgment total. This $3645.00 lost profits amount has no support in the evidence. Under Sec. 2.715, “consequential damages” includes “any loss * * which could not reasonably be prevented by cover or otherwise.” There is no evidence in the record whatever that Plaintiff Hays at any time made any effort to cover or in any other manner attempt to prevent or mitigate a loss resulting from the Defendant Wilson’s non-delivery of the 200,000 brick in question. In the absence of such a showing these consequential damages are unauthorized under Section 2.715. The burden of proving the extent of loss incurred by way of consequential damage is on the buyer. See committee comment to Section 2.715;' also General Supply and Equipment Co. v. Phillips (Tyler CA 1972) 490 S.W.2d 913, 920, NRE. This being so, we are of the opinion that there .is no evidence to support these jury findings concerning consequential damages, and that the trial court’s judgment insofar as it awarded Plaintiff Hays $3645.00 lost profits is improper and this amount should be deleted from said judgment.

As stated before, the judgment is proper and should be affirmed for the amount of $10,000.00, same being composed of $2000.00 paid by Plaintiff for which he received no bricks plus $8000.00 damages for non-delivery. !

We therefore affirm in part and reverse and render in part the trial court’s judgment as follows: Plaintiff-Appellee Hays is hereby awarded judgment against Defendant-Appellant Wilson in the amount of $10,-000.00, plus interest at six percent per an-num from and after May 15, 1972 up until January 27, 1976, the date of entry of the trial court’s judgment, together with interest from the date of the trial court’s judgment upon the amount then due at the rate of nine percent per annum until paid.

Costs of the trial court and of this appeal are taxed one-half each to Appellant and Appellee.

AFFIRMED IN PART AND REVERSED AND RENDERED IN PART.


author: REYNOLDS, Justice.

text:
    Ex parte Diana Lyn PEPPER and Tommy Pepper.
    No. 8783.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 13, 1976.
    Rehearing Denied Jan. 10, 1977.

      Miller, Miller & Russell, Oth Miller, Amarillo, for relators.
    Ochsner & Baughman, Frank J. Baugh-man, Amarillo, for respondents.
   REYNOLDS, Justice.

In this original habeas corpus proceeding, relators Diana Lyn Pepper and Tommy Pepper seek release from custody following a judgment of contempt for failure to comply with a visitation order entered prior to rendition of a final decree of adoption. The relators are ordered discharged for lack of a written order of commitment; and, furthermore, we hold that the visitation order became ineffective upon entry of the final decree of adoption.

All judicial proceedings were had in the Domestic Relations Court in and for Potter County, Texas. The duly certified records show that Jon Wayne Lamberson and Diana Lyn Lamberson, the natural parents of two minor children, were divorced on 24 May 1973, but there is no showing of any order respecting the children. Diana Lyn Lamberson married Tommy Pepper on 22 June 1973.

Thereafter, Tom Stanford and Jonnie Webb Lamberson, paternal grandparents of the minor children, moved the court to grant them reasonable visitation rights with the children. By its order of 19 November 1974, the court granted the grandparents specific “rights of Possessory Conservators.”

After the Peppers instituted an action to terminate the parent-child relationship between Jon Wayne Lamberson and the two children, the court ordered the parent-child relationship terminated as to the natural father on 24 October 1975. Diana Lyn Lamberson Pepper, the natural mother, was appointed managing conservator retaining “all the rights, privileges, duties, and powers of a parent, subject to the rights, privileges, duties and powers of the possessory conservators previously appointed in this cause.”

As managing conservator of the children, Diana Lyn Lamberson Pepper filed a consent to their adoption by Tommy Pepper on 14 November 1975, and on the same day Tommy Pepper, joined by Diana Lyn Lam-berson Pepper, filed an original petition for adoption of the two children. The paternal grandparents were personally served with notice of the proceedings. On 14 January 1976, the court, being satisfied that requirements for adoption were met and finding that the adoption was in the best interest of the children, granted a decree of adoption. The decree ordered that the parent-child relationship shall exist between Tommy Pepper and the two minor children and changed the legal names of the children. Other than containing a finding that there had been a decree terminating the parent-child relationship as to the natural father, the decree of adoption is silent as to any prior decrees or orders.

Subsequent to the rendition of the adoption decree, Tommy Pepper on 12 March 1976 and Diana Lyn Pepper on 11 June 1976 denied the paternal grandparents’ requests for access to and possession of the children pursuant to the 19 November 1974 order. The grandparents then filed their motion for contempt. After hearings thereon, one of which was on 10 September 1976, the court entered on 29 September 1976 its judgment adjudging the Peppers guilty of contempt. The Peppers were each fined the sum of $125 and ordered confined in the Potter County jail for a period of seventy-two hours and until the fine of $125 was paid, said confinement to be suspended on payment by each of the $125 fine into the registry of the court on or before 1 October 1976 at 2 P.M.

On 15 October 1976, the Peppers were taken into custody of the Sheriff of Potter County “pursuant to that certain order dated September 10, 1976, (sic) issued by the Hon. Carl Periman, Judge of the Domestic Relations Court of Potter County, Texas.” The Peppers were released on personal recognizance bonds pending disposition of their application for writ of habeas corpus.

The record we review does not disclose any written order of commitment. It is established that a written order of commitment, which is the warrant, order or process by which a court directs a ministerial officer to take a person to jail and to detain him there, is an essential prerequisite to the imprisonment of a person for contempt. Ex parte Puckitt, 159 Tex. 438, 322 S.W.2d 597 (1959). And a person may not be imprisoned for contempt without a written order of commitment. Ex parte Martinez, 160 Tex. 328, 331 S.W.2d 209, 210 (1960). Therefore, the relators must be discharged.

Because the parties have joined issue on the efficacy of the 19 November 1974 order granting the paternal grandparents certain rights of possessory conservators, we are aware of the likelihood of further proceedings absent a determination of the status of that order. It is not necessary that we consider whether, under the pre-Code rationale of Deweese v. Crawford, 520 S.W.2d 522 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.), and Smith v. Painter, 408 S.W.2d 785 (Tex.Civ. App.—Eastland 1966), writ ref’d n. r. e. 412 S.W.2d 28 (Tex.1967), the 24 October 1975 order terminating the natural father’s parental relationship with the children also terminated as a matter of law his parents’ legal relationship to the children. It suffices for a determination of this issue, and we hold, that upon rendition of the 14 January 1976 decree of adoption, the prior order granting rights of possessory conservators ceased to have any legal effect.

The paternal grandparents, possessing the order for visitation with the children, were given notice of the adoption proceedings. The final decree of adoption reserved no rights to them. The legal effect of the adoption decree was to end the trial court’s continuing jurisdiction over the pre-adoption proceedings, Y.T.C.A., Family Code § 11.05(b), and, except for the children’s right to inherit from their natural parents, V.T.C.A., Family Code § 15.07, to sever old legal ties and to create new legal relationships. V.T.C.A., Family Code § 16.-09. Accordingly, the prior order for grand-parental visitation ceased to have any legal effect upon entry of the final decree of adoption.

The relators are ordered discharged.

      . V.T.C.A., Family Code § 14.03(d), effective January 1, 1974, provides: “The court may grant reasonable visitation rights to either the maternal or paternal grandparents of the child and issue any necessary orders to enforce said decree.” The statute was amended effective September 1, 1975, to substitute the word “access” in lieu of the word “visitation.”

      . The rights granted were “specifically defined as visitation” from 6 p. m. on Friday until 6 p. m. on Saturday the second weekend in each of the months of March, June, September and December of each year, beginning in December of 1974, and for one seven day week during the months of either June, July or August, corn-mencing in 1975, and continuing until the youngest child reaches the age of eighteen years. ¡

      . V.T.C.A., Family Code § 11.05(b) reads: “A final decree of adoption ends a court’s continuing jurisdiction over the child, and any subsequent suit affecting the child shall be commenced as though the child had not been the subject of a suit for adoption or any other suit affecting the parent-child relationship prior to the adoption.”

      . V.T.C.A., Family Code § 15.07 states: “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, except that the child retains the right to inherit from and through its divested parent unless the court otherwise provides.”

      .V.T.C.A., Family Code § 16.09 provides: “(a) On entry of a decree of adoption, the parent-child relationship exists between the adopted child and the adoptive parents as if the child were born to the adoptive parents during marriage.
      “(b) An adopted child is entitled to inherit from and through his adoptive parents as though he were the natural child of the parents.”


author: CHADICK, Chief Justice.

text:
    H. L. HAMPTON, Jr., Appellant, v. Montie E. LUM, Appellee.
    No. 8423.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 14, 1976.

      Craig Penfold, Dallas, for appellant.
    Larry Feldman, Feldman, O’Donnell & Neil, Dallas, for appellee.
   CHADICK, Chief Justice.

This is an appeal from a summary judgment in a suit for damages by a landlord against his tenant. The landlord grounded a right to recovery upon breach of provisions of a written lease. Judgment was entered awarding a recovery and the tenant has appealed. The landlord, Montie E. Lum, was plaintiff below and is appellee here. The tenant, H. L. Hampton, Jr., was defendant below and is now appellant. The judgment of the trial court is affirmed.

The single point of error briefed by appellant is as follows:

“The trial court erred in entering a summary judgment for defendant since the language ‘at the expiration of the original lease term herein, this lease shall automatically renew for a like term unless either party gives thirty (30) days written notice to the contrary’ is ambiguous as a matter of law.”

The quoted language within the point of error is the language of paragraph 14 of the lease agreement entered into by the parties. The lease instrument initially provides that the duration of the lease is May 15, 1974 to May 15, 1975. It is concluded that paragraph 14 of the lease is not ambiguous as a matter of law when the intention of the parties is ascertained by an examination of the language and provisions of the lease.

Appellant urges that the words like term in paragraph 14 renders the provisions of the paragraph ambiguous, unclear and meaningless. In conveyancing the word term has a technical meaning. Davis v. Vidal, 105 Tex. 444, 151 S.W. 290 (1912); Curry v. Bacharach Quality Shops, 271 Pa. 364, 117 A. 435 (1921); Barnes v. Standard Oil Co. of California, 167 Wash. 609, 9 P.2d 1095 (1932). As the word is used in the context shown term means the interest or estate created by ¡the lease instrument and the estate’s duration. In using the words like term in paragraph 14, the parties agree that at the expiration of the first period of the demise the estate created therein and its duration of twelve months would automatically renew. ; Neither the words like term nor the paragraph in which they appear renders the agreement ambiguous, vague or meaningless.

Although the lease speaks in terms of renewal, a lease containing provisions of this nature is treated as a present demise for the full period of time to which the lease may be extended subject to defea-sance by a condition subsequent. It is a demise for twenty-four months, subject to being curtailed to twelve months. Stewart v. Kuskin & Rotberg, 106 S.W.2d 1074 (Tex.Civ.App.Texarkana 1937, no writ); Haddad v. Tyler Production Credit Ass’n, 212 S.W.2d 1006 (Tex.Civ.App.Texarkana 1948, writ ref’d); Springfield Fire & Marine Ins. Co. v. Republic Ins. Co., 262 S.W. 814 (Tex.Civ.App.Dallas 1924, writ dism’d); 36 Tex.Jur.2d, Landlord and Tenant, See. 242, 243. The option accorded the parties is a privilege to stay or prevent automatic extension of the lease by giving notice as specified.

Paragraph 14 is not wholly meaningless and a mere jumble of words. It is the duty of the courts to give it a construction that renders it effective rather than ineffective. 13 Tex.Jur.2d, Contracts, Sec. 111. And if the language is susceptible to such construction it should be construed as valid and enforceable; and if the primary purpose of the agreement is clear, a construction should be made that does not violate such purpose. 13 Tex.Jur.2d, Contracts, Sec. 122. When the lease in its entirety is considered it is apparent the parties intended that so far as renewal was concerned paragraph 14 expressed and circumscribed their rights, obligations and liabilities on May 14, 1975.

It has been demonstrated that the parties intended a demise of an estate of twelve months duration to automatically renew in the absence of notice. The extension being automatic and not requiring affirmative action by either party assumes and implies that prior notice must be given to stay or prevent extension before the extension event occurs. Nothing in the language of the lease hints at or assumes that retroactive notice would be sufficient to prevent an automatic extension. The option not to renew required prior notice and such notice was not given.

Even if the lease is construed as permitting retroactive notice the judgment of the trial court is proper as the record shows conclusively that the requisite thirty-day notice was not given retroactively.

Appellant’s point of error is overruled. The judgment of the trial court is affirmed.


text:
    Donald CARROLL, Appellant, v. Robert K. KNICKERBOCKER, and Keats and Associates, Appellees.
    No. 8417.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 14, 1976.
    Rehearing Denied Jan. 4, 1977.
    Michael M. Daniel, Dallas Legal Services Foundation, Inc., Dallas, for appellant.
    Daniel J. Sheehan, Jr., Wynne & Jaffe, Dallas, for appellees.
   CHADICK, Chief Justice.

This is an appeal from a judgment in a suit for damages by a tenant against his landlord. The tenant grounded his right to recovery on unlawful eviction. Summary judgment was entered that the tenant take nothing and he has appealed. The judgment of the trial court is reversed and the case is remanded for a new trial.

Donald Carroll, the tenant, was plaintiff below and is appellant here. Robert K. Knickerbocker and Keats and Associates, a corporation alleged to be wholly owned by Knickerbocker, were defendants below and are now appellees. Keats and Associates and Knickerbocker will hereafter be referred to collectively as Keats.

Carroll’s first point of error is that Keats’ motion for summary judgment failed to meet a movant’s burden of proof in a summary judgment proceeding. The burden on a movant is to prove that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972); Tex.R.Civ.P. 166-A; 4 McDonald’s, Texas Civil Practice, Sec. 17.26.2. Keats’ motion is grounded primarily upon the facts alleged in this paragraph, to-wit:

“There has been no eviction of Plaintiff by either Defendant, as a matter of law, since the Plaintiff occupied the premises on a month to month tenancy, and Defendant gave notice of its intention to terminate the tenancy in the required length of time prior to June 15, 1974, at which time Plaintiff vacated the premises in accordance with an agreed order.”

Reasonably construed the paragraph sets out as a fact that certain notice had been given and that Carroll vacated the premises in accordance with an agreement. There is no proof in the record of either of these material facts. The motion for summary judgment is unsworn and no affidavit, deposition, admission or other extrinsic evidence supporting the facts is found in the record. Keats, as movant, offered no evidence. Carroll did not move for summary judgment or by pleadings or otherwise admit the factual allegations of Keats’ motion. In the absence of proof of these material facts there is no basis for a judgment for Keats on the whole case. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Best Investment Company v. Francis, 453 S.W.2d 893 (Tex.Civ.App. Eastland 1970, writ ref’d n.r.e.); 4 McDonald’s Texas Civil Practice, Sec. 17.26.2. Alternative grounds for summary judgment on the whole case stated in Keats’ motion are also without merit for reasons similar to those discussed.

The record does not present a matured summary judgment case. There is no summary judgment evidence of the facts noticed nor of the factual allegations of either party’s pleadings. Neither are Carroll’s pleadings tested by a summary judgment motion directed solely thereto. Carroll’s first point of error is sustained and the judgment of the trial court is reversed and the case remanded for new trial.