author: KLINGEMAN, Justice.

text:
    In the Interest of J.M. and G.M., Children, Appellant.
    No. 16143.
    Court of Civil Appeals of Texas, San Antonio.
    July 19, 1979.

      Frederick R. Zlotucha, Law Office of A. L. Hernden, San Antonio, for appellant.
    Kirk Patterson, Stewart & Hemmi, San Antonio, for appellee.
   OPINION

KLINGEMAN, Justice.

This is an appeal from an Order to Modify in Suit Affecting the Parent-Child Relationship. A decree of divorce was entered between R.M. and L.M., the parents of the subject children, on September 3, 1976, wherein R.M., their father, was ordered to pay child support for his and L.M.’s two minor children, in the following amounts:

September 15,1976-January 1,1977
$250 per month per child, or $500 per month;
January 1,1977-June 1,1977
$375 per month per child, or $750 per month;
June 1,1977-January 1,1978
$500 per month per child, or $1,000 per month;
January 1,1978-June 1,1978
$625 per month per child, or $1,260 per month; and
June 1, 1978, until each child attains the age of eighteen years
$750 per month per child, or $1,500 per month.

In addition, the divorce decree ordered the father to pay for a college education for each of the two children; to provide a piano for the oldest child, when that child reached the age of eight years; to keep in effect all medical insurance coverage for the minor children and to remain responsible for one-half of their medical and dental expenses; to retain all of his life insurance policies in full force and effect, with the minor children to be designated as beneficiaries; and to “pay all tuition costs of schooling for the minor children.” The payment schedule set out above, was included in a “Child Support and Community Property Settlement Agreement” signed by the parties and incorporated into the decree of divorce. Under the decree, L.M., the mother, was named managing conservator of the children, and their father was appointed as possessory conservator.

On or about January 1, 1978, R.M. is alleged to have failed to abide by the terms of the child support agreement, when he refused to make the increased payments ordered in the decree. He did, however, continue to make monthly child support payments of $500 per month per child. Thereafter, on March 6, 1978, he filed a motion to modify, requesting a reduction in child support payments. He also asked that the court set a reasonable amount of child support.

After a hearing on the matter, the court ordered that he pay child support in the sum of $575 per month per child until each child attains the age of eighteen years, or until further orders of the court. The court further ordered that this sum would be the “total amount of support to be paid by the Movant for the support of the minor children at this time,” but held that this order did not modify the specific provisions for a piano, expenses for future college education, and maintaining the children as beneficiaries on his life insurance policies.

The children’s mother appealed from this order, complaining that it cut off her anticipated automatic increases in child support up to $750 per month per child, and that the tuition payment for the schooling of the minor children should not be considered covered by the $575 per month per child cash payments. She asserts twenty-one points of error in which she basically contends that (1) the trial court erred in granting a reduction in child support payments because there is no evidence, or alternatively insufficient evidence, of any material or substantial change in circumstances since the entry of the divorce decree; (2) there is no evidence, or alternatively insufficient evidence, to support a finding that the mov-ant’s financial circumstances had changed; (3) the trial erred in setting aside the prior child support agreement provisions incorporated in the decree of divorce, since that agreement and decree is valid and binding upon the parties; (4) the trial court erred in modifying the tuition payment provisions of the divorce decree; and (5) the trial court erred in modifying the original decree of divorce.

The amount of money that a parent is required to pay for the support of his minor children, both before and after divorce, is based not only upon the needs of the children but upon his financial ability to pay, having due regard to all of his lawful obligations, including those assumed to another spouse and to other children. See Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921). One is bound to support his children in a manner suitable to their circumstances in life, commensurate, however, with his financial ability to pay for their support. See Myrick v. Myrick, 478 S.W.2d 859 (Tex. Civ.App. — Houston [1st Dist.] 1972, writ dism’d); McAfee v. McAfee, 258 S.W.2d 824 (Tex.Civ.App. — Dallas 1953, no writ); 21 Tex.Jur.2d Divorce and Separation § 387 (1961). The trial court’s order will not be disturbed on appeal unless there is a clear abuse of discretion. See Hearn v. Hearn, 449 S.W.2d 141 (Tex.Civ.App. — Tyler 1969, no writ); Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App. — El Paso 1961, writ ref’d n. r. e.). While the trial court has wide discretion in fixing the amount of child support payments and while each case must stand on its own facts, the determination of that amount must be supported by evidence that the parent obligated for child support is able to pay, and can pay, the amount specified in the order. See Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App. — Corpus Christi 1973, no writ); Danburg v. Danburg, 433 S.W.2d 784 (Tex.Civ.App. — Houston [14th Dist.] 1968, no writ); Ramey v. Ramey, 425 S.W.2d 900 (Tex.Civ.App.— Eastland 1968, writ dism’d); Angel v. Todd, 368 S.W.2d 224 (Tex.Civ.App. — Houston 1963, no writ); Madden v. Madden, 365 S.W.2d 427 (Tex.Civ.App. — Fort Worth 1963, no writ).

By counterpoint the children’s father asserts here that the provisions of the original divorce decree providing for an automatic increase in child support were not based upon the actual needs of the children, but followed instead a prescribed formula based on his anticipated ability to pay, and were, therefore, unenforceable. We consider this contention to be meritorious.

In Barlow v. Barlow, 282 S.W.2d 429 (Tex.Civ.App. — El Paso 1955, no writ), it was held that the application of an arbitrary percentage-of-income formula to determine the level of child support was erroneous and violated the rule set out by the Supreme Court of Texas in Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921). Under Gully, the trial court is directed to consider all the circumstances affecting the ability of the supporting parent to pay. This consideration is an ongoing judicial process and does not permit the imposition of a formula to provide automatic increases in support. There must be a material change in conditions to warrant an increase in child support payments, and it is not in the trial court’s power to anticipate such changes and provide for them prior to their occurrence.

The facts of Myrick v. Myrick, 478 S.W.2d 859 (Tex.Civ.App. — Houston [1st Dist.] 1972, writ dism’d), are close in point to those before us. In that case, a property settlement agreement was incorporated into the divorce decree, in which the divorced husband agreed to pay for the support of his two children $1,100 each month from June 1, 1968, through May 1, 1971; $1,300 each month from June 1,1971, through May 1, 1973; and $1,500 each month thereafter until the youngest child reached eighteen years of age. This is close to the situation we have before us in this case. The divorced husband there filed a motion to modify, and the trial court entered an order reducing his child support payments to the sum of $600 per month for the period from July 1,1970, to April 1,1971. At the end of this period, he was ordered to resume child support payments in accordance with the original decree. At trial the divorced wife testified that she was spending only $300 to $400 each month for the support and education of the children. On appeal, she contended that the trial court lacked the power to reduce the payments required by the divorce decree because this portion of the decree was not only a judgment of the court, but also a contract between the parties.

The court of civil appeals in Myrick held that the court granting a divorce has continuing and exclusive jurisdiction to modify and change the provisions of the divorce decree for support of children under the age of eighteen years. The court also found that the parties to a divorce case cannot by contract restrict that authority. The court of civil appeals also held that the power of the trial court to amend the judgment in this respect is not dependent on a showing of changed circumstances.

The facts of the case before us, as in every case involving child support, require the exercise of sound discretion by the trial judge, and not the arbitrary application of any formula. The mother and the father of the children were the only witnesses to testify. Their testimony at best is somewhat vague, often irrelevant, and sometimes evasive. The gist of their testimony is as follows:

The two children involved are a boy, seven years of age, and a girl, four-and-a-half years of age. Their mother, L.M., is employed parttime as a restorer of automobile interiors, and testified that her income for the previous year was $2,600. The owner of the business lives with her and her two children, although they are not married. The mother’s boyfriend contributes some $300 to $500 per . week to support her and the children. They live in an apartment which rents for $550 a month. L.M. had prepared for trial a list of expenditures of herself, her boyfriend, and the two children. She allocated $350 of the monthly apartment rental to the support of her children on some basis which is not exactly explained. She estimated $100 a month for telephone expenses, but her documentation, which covered a four-month period, establishes a need less than this total, but she claimed that the increase in this expense (together with other expenses to which she testified) is justified on the basis of “inflation.” She testified that she spends about $1,800 a year for insurance, much of which is for automobile insurance, which she explains is high due to the fact that she is a high-risk driver. She allocates a portion of the cost of such insurance to her children, contending that such portion thereof should be borne by them because “my possessions are eventually my children’s possessions.” She says she requires $80 per month for ballet and gymnastics lessons for the children, although she concedes that the children are not presently involved in such activities. She allocates either $200, $250, or $300 a month for the children’s food without any explanation of how she arrives at these variant figures except that she states that “we do not eat what other people eat”; again she took an inflation factor into consideration on this expenditure. She has a vague allocation for their clothing expenditures; $500 is allocated for “books, birthday gifts, pets [and other] diversions”; $2,000 a year is allocated for travel and for summer camps. It is impossible to arrive at an exact figure as to expenditures for the children from her testimony although they seem to range from a high estimate of $1,462 to a low of $899.
The testimony of the children’s father is also imprecise at times. He testified that he is a physician; that he has remarried; that his present wife has three minor children of her own; and that she is not employed. His testimony as to his earnings are a mixture of what he calls gross income and what he calls net income. He testified that the taxable income reflected by his 1976 income tax return was $12,174 and by his 1977 tax return as approximately $54,000, although this was objected to and ultimately the witness was instructed to confine his testimony to gross income.
R.M. testified further that he is unable to pay the present child support payments under the court decree, which provided for automatic increases based upon a formula. It is evident from his testimony that he, like his ex-wife, is accustomed to a somewhat' high standard of living. He testified that he did not have enough money remaining out of his take-home income to pay his and his present family’s living expenses, plus the child support payments in question, as provided for in the trial court’s decree. He stated further that he had to resort to borrowing from his present wife’s savings in order to remain current in his obligations. He stated that his anticipated income, upon which the formula provisions of the contract regarding automatic increases in child support are predicated, have not materialized and that he is not making as much money as anticipated by the payment schedule.

L.M.’s points of error pertaining to modification of the tuition payments are without merit. Such provision was a part of the child support provisions and is subject to the same rules generally applicable to child support payments as already set forth. There is no evidence that any such tuition payments are presently being made, or are even required, except for a statement that her children are going to school, and other vague references by L.M. as to contemplated ballet classes, gymnastic lessons, and summer camp for the children.

The trial court had both witnesses before it and was in a position to observe them. The trier of fact was the judge of the credibility of the witnesses and of the weight to be given their testimony. It is his province to resolve conflicts and inconsistencies in the testimony of the witnesses before him, and in doing so he may believe or disbelieve the testimony of any witness, in whole or in part. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Southland Life Insurance Co. v. Aetna Casualty & Surety Co., 366 S.W.2d 245 (Tex.Civ.App.— Fort Worth 1963, writ ref’d n. r. e.); 62 Tex.Jur.2d Witnesses §§ 369-374 (1965).

We have concluded that the judgment below is correct because (a) the record does not show any abuse of discretion by the trial court in modifying the child support provisions; (b) the provisions of the original divorce decree providing for an automatic increase in child support payments under a prescribed formula was not based on the actual needs of the children and was unenforceable; and (c) the record amply supports the trial court’s finding that the movant’s financial condition had changed and that the amount awarded by the trial court would amply support the children’s needs.

All of the points of error have been considered and all are overruled.

Finding no reversible error, we affirm the judgment of the trial court.

      . The child support provisions of the agreement state that it is anticipated that the gross income of R.M., upon which the child support is based, will be $15,000 from September 1, 1976, until January 1, 1977; $50,000 from January 1, 1977, until June 1, 1977; $50,000 from June 1, 1977, until January 1, 1978; $75,000 from January 1, 1978, until June 1, 1978; and $75,000 for each six-month period thereafter. It is evident from this that the automatic increases in child support payments are not based upon actual needs of the children, but rather upon anticipated future income of their father.

      . This Court in Lynde v. Lynde, 492 S.W.2d 641 (Tex.Civ.App. — San Antonio 1973, no writ), with respect to showing of changed circumstances, stated “[w]e believe that the continuing jurisdiction of the court granting a divorce to change or alter the amount of child support is correctly stated in Myrick v. Myrick, supra.” Both this Court and the Myrick court stated that it would be a rare case where a change in a previous order would be made without a showing of a change in conditions or some unusual circumstances.

      . It is somewhat difficult to understand the court’s basis for this ruling. The court made it plain that since this was a hearing on a motion to modify the child support provisions of a divorce decree he would refuse to take into consideration the contractual relationship alluded to by counsel for both parties. Since his ability to pay is dependent upon what he is actually making, it would appear that his testimony as to net income, and not gross income, is relevant insofar as he might conceivably have a gross income of $100,000 from his business and still be making very little, if anything.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Beatrice QUIROZ, Appellant, v. Stephen E. McNAMARA, Appellee.
    No. 1268.
    Court of Civil Appeals of Texas, Tyler.
    July 19, 1979.

      Barry K. Bishop, L. Parker McNeill, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    Joseph P. Webber, Long, Evatt & Web-ber, Austin, for appellee.
   McKAY, Justice.

This is an appeal from an order sustaining appellee’s plea to the jurisdiction. Appellant sued appellee, a nonresident of this state, attempting to gain personal jurisdiction over appellee pursuant to Article 2031b, Section 3. Appellant alleged that she was driving her car on May 2, 1976, in Austin, Travis County, Texas, and was involved in a collision with a motorcycle driven by appellee, a resident of the State of Minnesota. Appellant further alleged that the accident was caused by appellee’s negligence and that appellant’s damages exceeded the minimum jurisdictional limits of the district court. Appellee made a special appearance pursuant to Rule 120a, T.R.C.P., objecting to the jurisdiction of the court over him and alleging that he did not have those minimum contacts with this state would constitutionally support jurisdiction over his person in this cause, and assumption of jurisdiction by a court of this state would offend traditional notions of fair play and substantial justice. Appellee further alleged that jurisdiction over the subject matter of this suit had been acquired by the State of Minnesota prior to the filing of this action by virtue of a suit filed by appellee against appellant and her insurer, Allstate Insurance Company, in a district court of that state. According to appellee, appellant agreed to the jurisdiction of the Minnesota court and, by this suit, is attempting to renege on that agreement.

The parties stipulated in the court below that (1) appellee was a resident of Minnesota, (2) the automobile collision which formed the basis of this suit occurred in Austin, Travis County, Texas, and (3) there was pending in Minnesota a suit against Allstate Insurance Company (the named defendant therein is Ms. Quiroz), 'litigating the automobile-motorcycle collision between appellant and appellee which is the subject of this suit. Following a hearing on appel-lee’s plea to the jurisdiction, the court below held that said plea should be sustained and dismissed appellant’s cause for want of jurisdiction of appellee’s person.

Appellant’s single point of error complains of the trial court’s action in sustaining appellee’s plea to the jurisdiction because the undisputed evidence showed, as a matter of law, that the court had in person-am jurisdiction of appellee. Appellant argues that the undisputed evidence presented at the hearing on appellee’s plea demonstrated that the accident occurred in Travis County, Texas, that appellant had alleged a cause of action in tort against appellee, and that there was no evidence presented at the hearing suggesting that the cause of action did not lie in tort or that the accident took place outside Texas or that service of process upon appellee was in any way defective. It is appellant’s basic contention that there are no constitutional infirmities in a Texas court asserting jurisdiction over a nonresident motorist where the accident occurred in this state.

Although appellant alleged in her petition that appellee could be served (and it appears that he was in fact served) pursuant to Article 2031b, which provides for service of process upon nonresidents deemed to be doing business in Texas by the commission of a tort within this state, rather than pursuant to Article 2039a, which provides specifically for service of process upon nonresident motorists, appellant urges that the use of the “long-arm” statute instead of the “nonresident motorist” statute makes no difference in a determination of whether a Texas court has personal jurisdiction over a nonresident involved in a motor vehicle accident in Texas.

It is appellee’s contention in his first counterpoint that he alleged in the trial court two independent grounds to deny the trial court’s jurisdiction, viz.: first, that the appellee’s person was not amenable to process in Texas, and second, that jurisdiction had already been established, by agreement of the parties, in Minnesota; appellee argues that appellant has failed to assert by point of error or argument that the trial court erred in sustaining his plea to the jurisdiction pursuant to his second alleged ground, and appellant has, therefore, waived any complaint as to that ground. Appellee urges that the real party in interest is Allstate, that Allstate agreed to jurisdiction in Minnesota in exchange for a limit to its liability, and that now Allstate has filed this lawsuit in Texas by which it seeks to defeat the jurisdiction it agreed to in Minnesota. Further, appellee states that Allstate filed this suit knowing that its claim did not reach the minimum jurisdictional amount in that Allstate pled that damages exceeded the jurisdictional limits of the district court, i. e., $500.00, but Ms. Quiroz testified that her total damages did not exceed $445.00.

In his second counterpoint, appellee states that the trial court correctly held that it did not have jurisdiction to entertain this lawsuit. He relies upon the case of O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex. 1966). There the court quoted with approval the Supreme Court of Washington in Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (1963), and established three basic factors which should coincide if jurisdiction over a nonresident is to be entertained in conformance with the dictates of due process:

“ ‘Such would appear to be: (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.’ ” O’Brien, supra 399 S.W.2d at 342.

It is appellee’s contention that when the considerations listed in the third factor are made in this case, the trial court correctly held that it did not have jurisdiction, in that Allstate offended traditional notions of fair play and substantial justice by bringing this suit without the knowledge or consent of the named plaintiff, when Allstate agreed in writing to jurisdiction in Minnesota and then attempted to renege on that agreement, and when Allstate alleged damages in excess of minimum jurisdictional limits when it knew that the total damages did not exceed such limits; in that appellee suffered grievous physical injuries while appellant suffered none, and appellee cannot conveniently come to Texas to pursue his claim or defend this suit while Allstate can readily defend itself against appellee’s claim in the Minnesota action; and in that the basic equities of the situation show that Allstate filed a “spurious, unauthorized, bad-faith lawsuit in a brazen attempt to renege on its agreement to jurisdiction in Minnesota.”

The burden of proof and persuasion is on the nonresident contesting the court’s jurisdiction. Hoppenfeld v. Crook, 498 S.W.2d 52, 55 (Tex.Civ.App.-Austin 1973, writ ref’d n. r. e.) In our view, the basic inquiry to be made in this case is whether appellant, by utilizing Article 2031b rather than Article 2039a, has failed to secure the jurisdiction she seeks to maintain over appellant. It is our opinion that she has not so failed.

Pertinent provisions of Article 2039a are as follows:

“Section 1. The acceptance by a nonresident of this State ... of the rights, privileges and benefits extended by law to such persons of operating a motor vehicle or a motorcycle . within the State of Texas shall be deemed equivalent to an appointment by such nonresident ... of the Chairman of the State Highway Commission of this State, or his successor in office, to be his true and lawful attorney and agent upon whom may be served all lawful process in any civil action or proceeding now pending or hereafter instituted against said nonresident . . . growing out of any accident, or collision in which said nonresident . . . may be involved while operating a motor vehicle or motorcycle within this State . and said acceptance or operation shall be a signification of the agreement of said nonresident . . . that any such process against him . . served upon said Chairman of the State Highway Commission or his successor in office, shall be of the same legal force and validity as if served personally.”

Appellant could have effectively secured jurisdiction over the person of appel-lee had she done so pursuant to Article 2039a. Hess v. Pawloski, 274 U.S. 352, 356-7, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). Undoubtedly, it would have been the better practice for appellant to have utilized that statute.

We now quote the provisions of Article 2031b which we feel are pertinent to our inquiry:

“Sec. 3. Any . . . non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain ... a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such . . . non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such . . . non-resident natural person is a party .
“Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any . non-resident natural person shall be deemed doing business in this State by . the committing of any tort in whole or in part in this State.
“Sec. 7. Nothing herein contained shall be construed as repealing any statute in force in this State in reference to service of process, but this Act shall be cumulative of all existing statutes.”

Following the United States Supreme Court decision in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), there ensued an era which presented vastly expanded potential to the states for constitutionally obtaining in per-sonam jurisdiction over nonresident defendants. Texas, in 1959, passed Article 2031b, thereby joining several other states in expanding the possibility of suit in Texas by a resident of this state against a nonresident defendant. Prior to 1959, Texas had a nonresident motorist statute (Article 2039a, originally enacted in 1929), and several in personam jurisdiction statutes applying to nonresidents in specific circumstances, but did not have a general “long-arm” jurisdictional statute. Article 2031b did not supersede the earlier jurisdictional statutes, but rather was cumulative of them. Thode, “In Personam Jurisdiction [etc.],” 42 Texas Law Review 279, 303-5 (1964).

By the very terms of Article 2031b, in Section 7, it is made “cumulative of all existing statutes,” including Article 2039a. The reach of Article 2031b is limited only by the United States Constitution. Hoppenfeld v. Crook, supra 498 S.W.2d at p. 56. Article 2031b provides for obtaining jurisdiction over any nonresident defendant who is “doing business” in Texas, the latter term expressly including the “committing of any tort in whole or in part in this State,” and thus is a statute of very broad application. Article 2039a, on the other hand, is expressly limited to jurisdiction over nonresidents involved in accidents and collisions occurring on the public highways and streets of Texas, and requires nonresident motor vehicle owners to submit to the jurisdiction of the state courts for such cause of action alone. Jacobsen v. Brown, 105 S.W.2d 1108, 1111 (Tex.Civ.App.-Dallas 1937, writ dism’d). Appellant here has merely chosen the more general statute under which to secure jurisdiction, rather than the more specific one.

As noted, the parties have stipulated that appellee is a nonresident of this state and that the accident with which we are concerned occurred in this state. Appellant has alleged that the accident occurred as a result of the negligence (i. e., a tort) of appellee. Appellee has pointed out no defect in the service of process upon the Secretary of State, nor do we find any.

We quote from Zerr v. Norwood, 250 F.Supp. 1021 (D.Colo.1966):

“It is patently clear that a non-resident motorist who is involved in an automobile accident in a particular state, as is the situation presented by the case at bar, has established a sufficient contact with that state to warrant its courts in asserting in personam jurisdiction over him to determine the merits of any controversy that may happen to arise out of that accident. Hess v. Pawloski, [supra].

The three-part test of O’Brien v. Lanpar Co., supra, is applicable only where there is a question as to the existence or extent of the required minimum contacts between the nonresident defendant and the forum state. Thus, it has no application to a situation such as that presented in the instant case. See also Arterbury v. American Bank & Trust Co., 553 S.W.2d 943, 948 (Tex.Civ. App.-Texarkana 1977, no writ), wherein it is said:

“Under the ‘commission of a tort’ provisions of a long arm statute, the jurisdictional requirements are met when the defendant, personally or through an agent, is the author of an act or omission within the forum state, and the petition states a cause of action in tort arising from such conduct. The act or omission within the state is a sufficient basis for the exercise of jurisdiction to determine whether or not the act or omission gives rise to liability in tort. [Citations omitted.] As ultimate liability in tort is not a jurisdictional fact, [citations omitted] the merits of the alleged cause of action are not at issue in the jurisdictional hearing. [Citing Thode, supra.]” [Emphasis in original.]

Even if we be in error, however, in determining that the O’Brien test does not come into play in a case where the nonresident defendant has operated a motor vehicle in this state, has had an accident while so doing, and has been sued for damages resulting from his alleged negligence in so doing, we are of the further opinion that an application of said test does not result in a decision favoring appellee. There is no question that the first two parts of the test have been satisfied. The question with regard to whether “traditional notions of fair play and substantial justice” have been offended, is concerned with the “minimum contacts” of the defendant with the forum state. International Shoe Co. v. Washington, supra. In the instant case, such test was satisfied by appellee’s presence in this state and his use of the public highways of this state, thereby taking advantage of all the rights and privileges of such use and subjecting himself to the responsibilities inherent in such use. This is not a case where the extent of the defendant’s activity in the forum state is questionable as comprising the constitutionally required “minimum contacts.” Zerr v. Norwood, supra. There is no contention by appellee that he would not receive adequate “benefits and protection” from the laws of this state.

Finally, we are not persuaded that the “basic equities of the situation” favor ap-pellee. We do not consider it material that this suit may have been filed at the behest of Allstate without the knowledge or consent of Ms. Quiroz. This suit was filed apparently pursuant to a subrogation agreement between Ms. Quiroz and Allstate.

Concerning the allegations by ap-pellee of an agreement by Allstate to jurisdiction in Minnesota, we do not consider such agreement, even if made, to be determinative of the issue before us. Jurisdiction is a matter of law, not of agreement. Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079, 1084 (Tex.1926). We quote from 21 C.J.S. Courts Section 548 at p. 855:

“The pendency of an action in the courts of one state or country is not a bar to the institution of another action between the same parties and for the same cause of action in a court of another state or country, nor is it the duty of the court in which the latter action is brought to stay the same pending a determination of the earlier action, even though the court in which the earlier action is brought has jurisdiction sufficient to dispose of the entire controversy. Nevertheless, sometimes stated as a matter of comity, not of right, it is usual for the court in which the later action is brought to stay proceedings under such circumstances until the earlier action is determined . . .” [Footnotes omitted.]

Thus it can be seen that the pendency of the action in Minnesota, even if Allstate or Ms. Quiroz submitted to jurisdiction there, does not preclude the assumption of jurisdiction by the courts of this state. Ex parte Jabara, 556 S.W.2d 592, 596 (Tex.Civ.App.-Dallas 1977, no writ); Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex.Civ.App.-Dallas 1966, writ dism’d), cert. denied, 389 U.S. 847, 88 S.Ct. 53, 19 L.Ed.2d 116 (1967). Inasmuch as an application for a stay of proceedings is directed to the discretion of the court, that is a question to be determined on remand. Evans v. Evans, 186 S.W.2d 277, 279 (Tex.Civ.App.-San Antonio 1945, no writ); Mills v. Howard, 228 S.W.2d 906, 908-9 (Tex.Civ.App.-Amarillo 1950, no writ); Nowell v. Nowell, supra.

With regard to appellee’s contention that appellant has not met the minimum jurisdictional limits of the court below, it is evident from the testimony taken at the hearing on the plea to the jurisdiction that damages in excess of the minimum jurisdictional limits were proved. Ms. Quiroz testified that her automobile was damaged and that the cost of repairs was approximately $445. In addition, she testified as to damages for loss of use in an amount of approximately $100. Appellee’s second counterpoint is without merit.

We do not agree with appellee’s contention in his first counterpoint that appellant failed to assert by point of error or argument that the trial court erred in sustaining appellee’s second ground for his plea to the jurisdiction, i. e., that jurisdiction had already been established in Minnesota, and that appellant had thereby waived any complaint against appellee. Appellant has brought before this court a general point of error complaining of error by the trial court “in sustaining appellee’s plea- to the jurisdiction because the undisputed evidence showed, as a matter of law, that the court has in personam jurisdiction of appel-lee.” We consider this point of error to be broad enough to put in issue before this court both grounds stated by appellee in his plea to the jurisdiction. Rule 418, T.R.C.P.

Accordingly, we are of the opinion the court below had jurisdiction of the subject matter and both parties, and thus improperly sustained appellee’s plea to the jurisdiction. Appellant’s point of error is sustained.

The judgment of the trial court is reversed, and the cause is remanded to that court for further proceedings.

      . All statutory references are to the Texas Revised Civil Statutes Annotated.


author: MOORE, Justice.

text:
    James C. HUGHES and Ingabord Hughes d/b/a Austin Orthotic Center, Appellants, v. Dennis COLE, d/b/a Austin Prosthetics Center, Appellee.
    No. 1270.
    Court of Civil Appeals of Texas, Tyler.
    July 19, 1979.
    Rehearing Denied Sept. 9, 1979.

      Bradley M. Bingham, Meurer & Bingham, Austin, for appellants.
    David W. Nelson, McGinnis, Lochridge & Kilgore, Austin, for appellee.
   MOORE, Justice.

Plaintiff, Dennis Cole, d/b/a Austin Pros-thetics Center, brought suit against defendants, James C. Hughes and Ingabord Hughes, d/b/a Austin Orthotic Center, seeking damages for breach of contract. Plaintiff alleged that on September 23, 1974, a written contract was executed by the parties under the terms of which he agreed to allow defendants to share office space with him and to use his business name, Austin Prosthetics Center, in their practice of orthotics to be conducted under the business name of Austin Prosthetics Center, Orthotic Division. As consideration for the use of the trade name, goodwill and other trade name benefits, plaintiff alleged that the defendants agreed to pay him an amount equal to 15% of the taxable net income earned by the defendants in their orthotic business for a period of three and one-half years commencing on January 1, 1975, payable in semiannual installments. Plaintiff alleged that although the defendants had earned a sizable net income from their orthotic business, they refused to pay in accordance with the terms of the contract. Defendants answered with a general denial and specially denied that they were indebted to the plaintiff under the terms of the contract, except for the sum of $155.91 which they tendered into court as being 15% of their net taxable income from January 1, 1975, through June 30, 1975. Defendants further alleged that they were willing to pay plaintiff the amount stipulated by the contract until August 26, 1975, the date they allege plaintiff Cole terminated the agreement and moved to another location.

After a trial before the court sitting without a jury, the trial court entered judgment for the plaintiff for 15% of defendants’ net taxable income for the three and one-half year period as stipulated in the contract and ordered the defendants to render an accounting to the plaintiff reflecting the amount of their net taxable income between January 1,1975, and June 30,1978. The judgment denied relief as to other claims asserted by the plaintiff and likewise denied the defendants any relief on their cross-action. Defendants duly perfected this appeal but limited the scope of the appeal to only that portion of the judgment which awarded the plaintiff a judgment for 15% of the net taxable income during the three and one-half year period stipulated in the contract.

Reformed and as reformed affirmed.

The evidence shows that in the early part of 1974, appellee, Dennis Cole, and appellant, James C. Hughes, met and began making plans for Hughes to move from San Antonio to Austin, Texas, for the purpose of opening an orthotics business in conjunction with Cole’s practice of prosthetics. Shortly thereafter Hughes moved to Austin and the parties operated under an oral agreement until September 23, 1974. The basic understanding underlying the agreement was that they would operate out of the same office, with appellee performing the prosthetics work of making artificial limbs and Hughes performing the orthotic work of making braces. Pursuant to the oral agreement the parties began operating under the business name of Austin Pros-thetics Center, Orthotic Division. On September 23, 1974, the parties executed a written agreement under the terms of which Cole agreed to allow appellants to use his trade name, Austin Prosthetics Center, in conducting Hughes’ orthotics work. As consideration for the use of Cole’s business name, good will and other trade name benefits, appellant, James C. Hughes, agreed to pay appellee an amount equal to 15% of the taxable net income derived by Hughes through his work at the Austin Prosthetics Center, Orthotic Division. The evidence shows that Cole introduced appellant to members of the medical profession practicing in Austin who would be referring business to Hughes and also allowed Hughes to order materials and equipment under his charge account. Approximately six months after the parties began working together, serious disagreements developed in their business relationship, which disagreements also affected their personal relationship. Cole decided that he could no longer continue the business relationship, moved out and moved his business to a new location in Austin. Thereafter he commenced operating under the name of “Austin Prosthetics Center.” Hughes continued to operate his business at the old location but changed the name of his business to “Austin Orthotic Center.”

At the trial Cole admitted that he intended to terminate the business relationship when he left and moved to a new location. He also admitted that on August 26, 1975, he sent a large number of letters to physicians and patients notifying them that he had terminated his business relationship with Hughes. Omitting the formal parts, the letter reads as follows:

“I have found it necessary to terminate my business relationship with James Hughes and his Orthotic Division.
“Any representation which I may have made in the past in reference to his workmanship or his conduct is hereby withdrawn and I do no accept any responsibility in connection with his business operations in the future.
“As of September 1, 1975, Dennis Cole, Austin Prosthetics Center, will be located at 3913 Medical Parkway.”

The evidence shows that after Cole demanded payment for the first semiannual installment due on June 30, 1975, Hughes rendered a statement to the appellee on September 10, 1975, showing that the net taxable income earned by the Orthotics Division amounted to $1,039.45 and tendered Cole the sum of $155.91 representing 15% of the net taxable income for the first semiannual installment. Cole refused to accept the payment. Thereafter he filed the present suit.

At the trial, appellant, James C. Hughes, admitted that he was obligated to pay Cole the 15% stipulated by the contract, beginning January 1, 1975, until Cole terminated the contract and moved out on August 26, 1975.

The pertinent parts of the contract (described as Exhibit “A”) material to this appeal are as follows:

“THIS AGREEMENT entered into this 23 day of September, 1974, by and between Dennis Cole of Austin Prosthetics Center and Jim Hughes of Austin Pros-thetics Center-Orthotic Division by which the parties agree as follows:
“1. Jim Hughes hereby agrees to pay to Dennis Cole fifteen (15%) percent of the taxable net income received by Jim Hughes through his work in the Austin Prosthetics Center, Orthotic Division, said payments to be made semi-annually beginning January 1, 1975 through July 1, 1978, with adjustments to be made annually at the end of each taxable year reflecting the actual net taxable income received. These payments are made in consideration of the benefits Jim Hughes will receive by use of the tradename, [sic] Austin Prosthetics Center, and the Goodwill and other tradename [sic] benefits connected with the Austin Prosthetics Center which is owned and operated by Dennis Cole.
“Although Jim Hughes will be bound by this agreement and will be required to make semi-annual payments representing 15% of the taxable net income received from his work at the Austin Prosthetics Center, Orthotic Division, he is in no way bound by this Agreement to remain with this Center and perform his work through this Center.”

Pursuant to the request of appellant, the trial court filed the following findings of fact: (1) The Agreement attached hereto as' Exhibit “A” and made a part hereof by reference for all purposes, along with prior oral agreements made by Plaintiff and Defendants prior to the execution of Exhibit “A” represent the full agreement between the parties to this dispute; (2) The Agreement which gave rise to this cause of action, was in writing and signed by Jim Hughes, Defendant, and Dennis Cole, Plaintiff, and was binding upon both parties thereto; (3) The terms of this Agreement which gave rise to this cause of action included the requirement that Defendant JAMES C. HUGHES was to pay Plaintiff DENNIS COLE fifteen percent (15%) of the taxable net income received by Defendant JAMES C. HUGHES through his work in the Austin Prosthetics Center, Orthotic Division; (4) In exchange for the payment of fifteen percent (15%) of the net taxable income from JAMES C. HUGHES, operating as Austin Prosthetics Center, Orthotic Division to DENNIS COLE, d/b/a Austin Prosthetics Center, JAMES C. HUGHES received the use of the trade name, Austin Prosthetics Center, and the goodwill and other trade name benefits connected with the Austin Prosthetics Center; (5) Since the execution by Plaintiff and Defendant of Exhibit “A,” Defendant JAMES C. HUGHES, d/b/a Austin Prosthetics Center, Orthotic Division, did in fact receive trade name benefits through the use of the name Austin Prosthetics Center, Orthotic Division along with other trade name and goodwill benefits connected with his association with the Austin Prosthetics Center and his association with DENNIS COLE: (6) While on September 15, 1975 Defendants JAMES C. HUGHES and INGABORD HUGHES ceased to operate under Plaintiff’s business name, Austin Prosthetics Center, other goodwill and trade name benefits associated with and accruing to Defendants through the association with Plaintiff continued to accrue to Defendants subsequent to the cessation of Defendants’ operations under Plaintiff’s business name; and (7) The terms of this Agreement which gave rise to this cause of action included the requirement that payments were to be made semiannually during the period January 1, 1975 through July 1, 1978, said payments representing fifteen percent (15%) of the net taxable income received by Defendants, JAMES C. HUGHES and INGABORD HUGHES and said payments having not been made pursuant to the terms of this Agreement. Based on the foregoing findings of fact, the trial court concluded that as a matter of law the plaintiff was entitled to judgment against defendants in the sum equivalent to 15% of the net taxable income derived by James C. Hughes and Ingabord Hughes through the operation of the Austin Prosthetics Center, Orthotic Division, and Austin Orthotic Center, Austin, Travis County, Texas, during the period from January 1, 1975, through July 1, 1978.

Appellants assert that the trial court erred in construing the contract to mean that the parties intended that the appellee, Dennis Cole, was entitled to receive 15% of the taxable net income earned by them aftér the appellee Cole had terminated the business relationship and moved his part of the business to another location. In reply appellee argues that the judgment must be sustained because language used by the parties in the second paragraph of paragraph 1 of the contract quoted above, compels the conclusion that appellants were required to make the semiannual payments of 15% of his taxable net earnings for three and one-half years irrespective of whether he remained with and performed his work through the Center or not.

Neither appellant nor appellee asserts any claim that the contract is ambiguous and it therefore becomes our duty to ascertain the intention of the parties from the written instrument itself without the aid of parol evidence. Steeger v. Beard Drilling Co., 871 S.W.2d 684, 688 (Tex.1963); Struller v. MeGree, 874 S.W.2d 266, 258 (Tex.Giv. App.- — San Antonio 1968, writ ref'd n. r. e.); O’Boyle v. Dubose — Killeen Properties, Inc., 480 S.W.2d 278, 277 (Tex.Civ.App. — Dallas 1968, writ refd n. r. e.).

In our view there is not ambiguity in the contract when considered in all of its provisions. Therefore resort to aids in construction is unnecessary, and, indeed, not permissible. Wood Motor Co. v. Nebel, 288 S.W.2d 181, 185 (Tex.1951); Steeger v. Beard Drilling Co., supra.

In our view the written instrument in question is in the nature of a partnership contract. Under the terms of the agreement Cole was to allow Hughes to use his trade name, goodwill, and other trade name benefits. Hughes was to do the orthotic work and the parties were to share the taxable net income on the basis of 85% to Hughes and 15% to Cole. Contrary to appellee’s contention, we do not believe the second paragraph of paragraph 1 of the contract had the effect of requiring appellants to make the semiannual payments for the full three and one-half years despite the fact that it was terminated after the expiration of eight and one-half months. Every partnership is prima facie a partnership determinable at the will of anyone of the persons who have entered into it unless it has been agreed that the contract would endure for a specific length of time. Wright v. Ross, 30 Tex.Civ.App. 207, 70 S.W. 234 (Tex.Civ.App.1910, writ refd); Heathington v. Heathington Lumber Company, 398 S.W.2d 822, 826 (Tex.Civ.App.— Amarillo 1966, no writ); 44 Tex.Jur.2d Partnership sec. 16, p. 335. Although Hughes bound himself by the terms of the agreement to make the semiannual payments derived from his work while at the Center, the agreement makes it clear that Hughes was in no way bound to remain at the Center or work there for any specified period of time. There being no agreement that the business relationship would endure for any specific time, the partnership was determinable at the will of either party. When Cole elected to terminate the partnership the extent of the appellants’ liability to Cole was 15% of their taxable net income which they earned at the Center from January 1, 1975, until the date of termination. The fact that appellants may have received some trade name and goodwill benefits after the partnership terminated would not have the effect of extending the agreement until June 30, 1978. Once the partnership agreement was terminated, neither party was any longer bound thereby.

As a general proposition, a contract, indefinite as to the time of its performance, may be terminated by either party by giving notice of or doing something sufficient to indicate to the other party an intention to do so. Sawman Oil Co., Inc. v. Bush, 136 S.W.2d 938, 940 (Tex.Civ.App. — El Paso 1940, no writ); 17A C.J.S. Contracts § 589, p. 1141; also see Dunham v. Orange Lumber Co., 125 S.W. 89, 90-91 (Tex.Civ.App. 1910, no writ). The undisputed proof shows that Cole notified appellants, as well as the general public, that he had elected to terminate the agreement. Further, the acts and conduct of appellants was sufficient to establish that they likewise notified Cole that they intended to terminate the agreement.

Appellants concede that they are liable to the appellee for the stipulated payments until the time the agreement was terminated. Under the unchallenged findings made by the trial court, the contractual relationship ceased on September 15,1975. Accordingly, the judgment will be reformed so as to award appellee, Dennis Cole, judgment for 15% of appellants’ taxable net income from January 1, 1975, to September 15, 1975, rather than for the three and one-half year period awarded by the judgment. In all other respects the judgment is affirmed.

Reformed and as reformed affirmed.


author: CORNELIUS, Chief Justice.

text:
    Ronald D. KOLB, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 8690.
    Court of Civil Appeals of Texas, Texarkana.
    July 24, 1979.
    Rehearing Denied Aug. 28, 1979.

      Vernon I. Lay, Jr., Round Rock, for appellant.
    Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellee.
   CORNELIUS, Chief Justice.

The appeal is from a summary judgment rendered against Ronald Kolb in his suit to set aside a worker’s compensation settlement agreement. Mr. Kolb injured his back on January 22, 1976, while he was employed by Kenneth Whitlock, Inc., a worker’s compensation subscriber whose coverage was provided by Texas Employers’ Insurance Association. Over the next few weeks he was examined by Drs. Swann, Zanetti and Barnes. Their reports essentially stated that he was not seriously injured but only had a lumbrosacral sprain. On June 23,1975, after a settlement conference attended by Mr. Kolb and his attorney, as well as representatives of the insurance carrier and the Industrial Accident Board, Mr. Kolb entered into a compromise settlement agreement by the terms of which he was paid $3,500.00 compensation, in addition to some $400.00 he had previously been paid, and was provided with one year’s future medical benefits. After the claim was settled, Mr. Kolb’s condition became worse. He saw another physician, Dr. Ross, who after diagnosing his condition as a herniated nucleus pulpus at lumbar 4 and lumbar 5 intervertebral disc level, performed surgery to correct the condition. In spite of the surgery, Dr. Ross concluded that Mr. Kolb was totally and permanently disabled. The insurance company does not controvert the fact that Mr. Kolb’s actual condition was much more serious than thought at the time his claim was settled.

The pleaded basis for Mr. Kolb’s suit was that, in making the settlement, he had relied upon representations concerning his medical condition given to him by Drs. Barnes, Zanetti and Swann, all of whom were the agents of Texas Employers’ and that those representations were false.

Texas Employers’ moved for summary judgment. The motion was not based upon affidavits, but simply relied upon the pleadings, the settlement agreement, and deposition testimony by Mr. Kolb. Mr. Kolb presented an affidavit in opposition, but because it was presented some two months after the filing of the motion and was served on Texas Employers’ only three days prior to the date which had been set for hearing the motion, the trial judge ordered the affidavit stricken and rendered summary judgment in favor of Texas Employers’.

To succeed in a case of this type, the claimant must establish that (1) false representations concerning his claim or his medical condition were made by the carrier’s agents; (2) he believed such representations to be true; (3) he was materially induced by such belief to enter into the settlement agreement; and, (4) he has a meritorious claim for compensation in an amount greater than the amount paid. Graves v. Hartford Accident & Indemnity Co., 138 Tex. 589, 161 S.W.2d 464 (1942); Alvarez v. Employers’ Fire Ins. Co., 531 S.W.2d 218 (Tex. Civ.App. Amarillo 1975, no writ). Mr. Kolb contends that summary judgment was not proper in this case because genuine issues of fact exist as to each of those material elements of his cause of action. Texas Employers’ argues that even if genuine issues of fact exist as to the other elements of Mr. Kolb’s cause of action, his own deposition testimony establishes that he did not rely upon the representations of its physicians in agreeing to the settlement.

Texas Employers’, as a defendant moving for summary judgment on the whole case, had the negative burden to show as a matter of law that Mr. Kolb had no cause of action against it. It could discharge that burden only by showing, through competent summary judgment proof, that the cause of action was barred by some legal barrier, or that there was no genuine issue as to the existence of one or more of the material facts necessary to establish the cause of action. Tex.R.Civ.P. 166-A; 4 McDonald’s, Texas Civil Practice, Sec. 17.26.2, pp. 133, 134, and cases there cited.

As noted earlier, Texas Employers’ did not support its motion for summary judgment with affidavits, but relied principally upon the deposition testimony. While tacitly conceding that Mr. Kolb’s deposition itself does not conclusively negate the allegations that the physicians were its agents and that the representations of those physicians were factually incorrect, yet Texas Employers’ contends that the deposition testimony does conclusively establish that Mr. Kolb did not rely upon those representations, but relied instead upon the conclusions of physicians of his own choosing and upon the advice of his attorney. In support of this contention, Texas Employers’ points to cases such as M. L. Mayfield Petroleum Corporation v. Kelly, 450 S.W.2d 104 (Tex. Civ.App. Tyler 1970, writ ref’d n. r. e.) and Marcus v. Kinabrew, 438 S.W.2d 431 (Tex. Civ.App. Tyler 1969, no writ), which apply the rule that where a person makes his own investigation of the facts, or relies upon expert opinions he has himself obtained, he cannot sustain a cause of action based upon misrepresentations made by others. We agree with the rule stated by those cases, but we cannot agree that Mr. Kolb’s deposition testimony conclusively establishes that he made his own investigation or that he did not rely upon the reports of the physicians who allegedly were the agents of Texas Employers’. It is true that, at one point in his deposition, Mr. Kolb stated that he agreed to settle the case because of the opinion he had from his doctor that he was “okay”, but it is not clear from the deposition which doctor he meant, and in his affidavit he clearly states that in making the settlement he relied upon the representations of the named doctors whom he alleged were agents of Texas Employers’. In this connection it must be remembered that, for the purpose of a motion for summary judgment, the opponent does not have the burden to establish that there is an issue of fact; the movant has the burden to conclusively negate the existence of one or more of the essential facts necessary to sustain the opponent’s cause of action. In addition, the court must accept as true all evidence which tends to support the opponent’s contentions, and must resolve in his favor all conflicts in his testimony or in other summary-judgment evidence, giving him the benefit of all intendments reasonably deducible in his behalf. 4 McDonald’s, Texas Civil Practice, Sec. 17.26.12, p. 172. Moreover, summary judgment should not be granted when the issues are inherently those for a jury or trial judge, as' in cases involving intent, reliance, reasonable care, uncertainty and the like. Ibid., Sec. 17.26.-12, p. 177. And, a claimant should not be deprived of his day in court if there is the slightest doubt as to the truth of a material allegation. Ibid., Sec. 17.26.12, p. 175. The fact that Mr. Kolb was represented by an attorney would not necessarily defeat his cause of action. He was not attempting to avoid the settlement because of misrepresentations of law or of the legal consequences of the agreement, but because of misrepresentations of his medical condition by agents of the insurance carrier. The fact that he had an attorney is not necessarily dispositive of a cause of action for that kind of representation; it is but a circumstance to be-considered by the trier of fact in determining the issues of inducement and reliance. It follows that Texas Employers’ did not sustain its burden to conclusively negate one or more of the essential facts of Mr. Kolb’s cause of action, and summary judgment was therefore not proper.

In his second point, Mr. Kolb contends that the trial judge committed an abuse of discretion in striking the affidavit in opposition to the motion for summary judgment. We agree. The summary judgment procedure provided by our rules should not be used as a snare for the unwary or as punishment for the dilatory, but should be used only to weed out from the litigation process those claims which are patently unmeritorious and undisputed. In this case it does not appear that the allowance of Mr. Kolb’s affidavit would have surprised Texas Employers’ or otherwise prejudiced the presentation of its motion. If it would have operated to Texas Employers’ disadvantage, the hearing of the motion could easily have been postponed to give extra time. In those circumstances and in the interest of justice, we believe leave should have been granted for filing the affidavit. See Tex.R.Civ.P. 166-A. Even in the absence of the affidavit, however, the summary judgment proof was not sufficient to conclusively negate one or more of the essential facts of Mr. Kolb’s cause of action. When a motion for summary judgment is supported by depositions, but they are insufficient to show the absence of a disputed material fact, no controverting affidavit is required. 4 McDonald’s, Texas Civil Practice, Sec. 17.26,8, p. 155.

Complaint is also made of the trial judge’s issuance of a protective order respecting Mr. Kolb’s application to take the deposition of two of the physicians. The case, originally filed in Nueces County, was transferred to Dallas County on a plea of privilege. Thereafter, Mr. Kolb issued notice to take the depositions of two of the physicians who lived in Corpus Christi. The depositions were scheduled for two successive days. On application of Texas Employers’, the trial judge issued an order which required that, because the depositions were scheduled on two days rather than one, and it would be necessary for Texas Employers’ attorneys to travel to Corpus Christi, Mr. Kolb should pay the attorneys’ air fare, lodging and meals and an additional $250.00 per day as attorneys’ fees. Mr. Kolb thereupon cancelled the depositions.

Although it is unlikely that the matter will arise again in the same context, we believe the trial court’s protective order went too far. Rather than placing such an onerous burden upon the claimant, especially with respect to the $250.00 per day attorneys’ fees, the court should simply have exercised its power to order that the depositions be scheduled for the same day. See the interpretative comment to Tex.R.Civ.P. 186b.

The judgment of the trial court is reversed and the cause is remanded for trial.


author: REYNOLDS, Chief Justice.

text:
    Pat L. NORTHCUTT, Appellant, v. Mary Lou JARRETT, Appellee.
    No. 8985.
    Court of Civil Appeals of Texas, Amarillo.
    July 25, 1979.
    Rehearing Denied Aug. 29, 1979.

      Bowers, Cotten & Harland, Forrest Bowers, Lubbock, for appellant.
    Galey & Cummings, Charles E. Galey, Lubbock, for appellee.
   REYNOLDS, Chief Justice.

Mary Lou Northcutt Jarrett was successful in her trial court bill of review proceeding to set aside the property settlement portion of a prior divorce judgment and to secure a substantial redivision of community property. Because of the failure to submit for the jury’s determination, over ex-husband Pat L. Northcutt’s objection, the issue of the lack of Mrs. Jarrett’s fault or negligence, she waived a finding on an element of proof essential to her bill of review. Reversed and rendered.

The judgment underlying this bill of review proceeding was rendered 29 November 1971 upon the petition of Pat L. Northcutt and the waiver of process executed by Mary Lou Northcutt in Cause No. 1983 in the 110th Judicial District Court of Briscoe County. The judgment decreed the dissolution of the marriage of Mr. and Mrs. North-cutt, fixed the custody of and support for their minor children, and specifically approved and incorporated their agreed property settlement.

Mary Lou Northcutt’s waiver of process, the basis for the judgment’s recitation that she waived issuance and service of citation, was dated the same day Pat L. Northcutt’s petition for divorce and related relief was filed. Although Mary Lou Northcutt was not present for the pronouncement of judgment, it is undisputed in the testimony of Pat L. Northcutt that shortly after the judgment was rendered, he told Mary Lou Northcutt they were not married any longer, and she responded, “Good.”

Mary Lou Northcutt Jarrett’s bill of review petition was filed in May of 1973. Her objective was to attack the property settlement portion of the prior judgment without seeking to vacate either the decree of divorce itself or the other portions of the judgment. Originally, she alleged that the agreed property settlement is unfair, unreasonable and inequitable, and that her agreement thereto was obtained through the fraud and wrongful acts of Northcutt unmixed with any fault or negligence on her part. At the jury trial and after a large part of the evidence had been presented, Mrs. Jarrett tendered a trial amendment. By. the amendment, she plead that her waiver of citation in the divorce proceeding had been executed and acknowledged prior to the filing of the divorce petition and that, therefore, the court was without jurisdiction to enter judgment confirming and incorporating the agreed property settlement. Even though she plead the court’s lack of jurisdiction to enter the judgment, she prayed only that the property settlement portion of the judgment be declared void.

The trial court allowed the trial amendment over Northcutt’s objection and claim of surprise. However, Northcutt did not ask for a continuance and, in fact, obliquely declined a continuance offered by the trial court. Furthermore, he stipulated that the waiver of process actually was signed prior to the filing of the divorce petition. Under these circumstances, there was no abuse of discretion by, and North-cutt is in no position to claim error on the part of, the trial court in allowing the trial amendment.

After receiving the jury’s answers to the special issues submitted, the trial court, conducting a separate bench hearing to ascertain the nature and extent of property, rendered judgment setting aside the agreed property settlement portion of the prior judgment and substituting a substantial re-division of the community property. Northcutt has appealed, complaining of error in the charge to the jury and in vacating the agreed property settlement portion of the judgment for a redivision of the community property. He does not, however, attack the property redivision itself.

Because Tex.Rev.Civ.Stat.Ann. art 2224 (Vernon 1971) is specific that no waiver of process shall be made until after suit is brought, the waiver of process executed by Mrs. Jarrett before the institution of the divorce suit did not subject her to the jurisdiction of the trial court in that cause. Nevertheless, the trial court had jurisdiction over the subject matters of the cause and, additionally, the court had jurisdictional power to determine the validity and effectiveness of the waiver and to render the judgment of divorce and for related relief. Accordingly, since the time for questioning the validity of any part of that judgment by appeal or writ of error had passed, the only means by which Mrs. Jarrett could challenge the validity of the judgment, whose invalidity is not disclosed by the papers on file, is by way of a bill of review. Deen v. Kirk, 508 S.W.2d 70, 71-72 (Tex. 1974).

The three usual elements of a bill of review which must be pleaded and proved are (1) a meritorious defense to the cause of action, (2) which the movant was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on the part of the movant. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). But this general rule does not govern the disposition of all bill of review cases, Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 244 (Tex.1974), and the second requirement of Hagedorn has been qualified. Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex.1979). In the event the bill-of-review movant was not subject to the jurisdiction of the court rendering the prior judgment for lack of proper process, the movant is relieved from the burden of pleading and proving the second element of Hagedorn; i. e., that the movant was prevented from making a meritorious defense by the fraud, accident or wrongful act of the opposite party. Accord, Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975).

The bill-of-review movant’s burden of proving a meritorious defense to the original cause of action is discharged when the movant produces proof from which the court determines, as a matter of law, that the defense is not conclusively barred and that the movant will prevail on retrial if no evidence to the contrary is offered. Baker v. Goldsmith, supra, at 409. Mrs. Jarrett’s prima facie proof of a meritorious defense met this test.

Thus, given the posture of the cause at the point of jury submission, Mrs. Jarrett’s remaining bill-of-review burden, before the jury reached the determination whether Northcutt had proved the elements of his original cause of action, was to persuade the jury by a preponderance of the evidence that she was without fault or negligence in the rendition of the prior judgment, Baker v. Goldsmith, supra, at 409, or in permitting the judgment to become final. Petro-Chemical Transport, Inc. v. Carroll, supra, at 246; Baker v. Goldsmith, supra, at 410 (concurring opinion); 4 R. McDonald, Texas Civil Practice § 18.29 (rev. 1971). Accord, McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

Although Northcutt objected to the court’s charge, the question of Mrs. Jarrett’s lack of fault or negligence was not submitted to the jury. She did not request submission of the issue and made no objection to its omission. Consequently, she failed to discharge her burden of proof, unless it can be said, as Mrs. Jarrett contends, that the requirement of showing no negligence has been eliminated, or her lack of negligence was established as a matter of law, or that the court, in rendering the bill-of-review judgment, could be deemed to have found there was no fault or negligence on her part.

Despite the latest and consistent pronouncements of the Supreme Court that negation of negligence is a burden to be discharged by the bill-of-review movant, Mrs. Jarrett proposes that Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964), and Deen v. Deen, 530 S.W.2d 913 (Tex.Civ.App. — Fort Worth 1975, no writ), eliminated the requirement of showing no negligence. We view the writings of the Supreme Court touching the holdings of these two cases to be to the contrary.

Following Hanks v. Rosser, supra, the Supreme Court wrote in Gracey v. West, 422 S.W.2d 913, 915-16 (Tex.1968):

The Rosser case modified the [Hagedorn ] rule to the extent that where an officer of the court gives wrong information which prevents the filing of a motion for new trial by the losing party, the movant in a bill of review is excused from complying with requirement (2) above [that the defendant was prevented from making his meritorious defense by fraud, accident or wrongful act of the opposite party], Otherwise, the rule of Hagedorn was approved (emphasis added).

In Deen v. Deen, supra, the papers on file evidenced that the defendant-wife’s waiver of service of citation and voluntary appearance was executed one day before the divorce suit was filed. Stating that the judgment rendered thereon “is demonstrably void ‘on the face of the record’ for want of jurisdiction of the person of the defendant against whom the prior judgment was rendered,” the court of civil appeals held that in a direct attack on the judgment, the defendant was not required “to show anything other than that the judgment was void.” Furthermore, the court said that defendant who had not been served with citation “could not have been negligent . '. . because she was under no duty to do anything to prevent the void judgment, and after it was rendered she had no duty to prevent a purported finality.” 530 S.W.2d at 915-17.

During the Deen appeal, the appellee-husband died and no application for writ of error was made to the Supreme Court. However, when the intermediate appellate court subsequently expressed the same rationale — /. e., setting aside the prior default judgment was compelled when it was established that the prior judgment was void for want of due process or jurisdiction over necessary parties — as one of the reasons for affirming the granting of a bill of review in Harris v. Logue, 544 S.W.2d 932, 935 (Tex. Giv.App. — Fort Worth 1976), aff’d, 554 S.W.2d 168 (Tex.1977), the Supreme Court stated:

The Court of Civil Appeals affirmed on two grounds: because the prior judgment was void and because the elements of a bill of review were proved. 544 S.W.2d 932. We agree that the judgment was correct because of the second ground. We disagree with and disapprove of the writing of the Court of Civil Appeals saying that the prior judgment was void “for want of due process or jurisdiction over necessary parties” and that Logue et al. were entitled to have it set aside without showing their meritorious defense. This writing is contrary to opinions of this Court, including Deen v. Kirk, 508 S.W.2d 70 (Tex.1974) and McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961).

554 S.W.2d at 168-69. And although the Court did not speak directly to the negligence element, the existence of the element as a necessary component of a bill of review is evinced by the authorities cited by the Supreme Court.

In Deen v. Kirk, supra, the bill of review proceeding antecedent to Deen v. Deen, supra, the trial judge, on his own motion and employing the same rationale later expressed by the court of civil appeals in Deen v. Deen, supra, had set aside the prior judgment on the ground that it was void. Declaring void the trial court’s order setting aside the prior judgment without hearing the bill of review, the Supreme Court reaffirmed the principle that a judgment asserted to be void for want of service, or of valid service, of process can be challenged only by a bill of review after the time for relief by way of appeal or writ of error has elapsed. In speaking to the bill of review, McEwen v. Harrison, supra, clearly enunciates the presence of the negligence element in these words:

If a defendant in a suit negligently suffers a default judgment to be rendered against him by a court having the jurisdictional power to render it, or negligently permits it to become final, he should not be heard to say that the judgment is void. And if he has no meritorious defense to the suit, the setting aside of the judgment would be a vain act and a trespass on the time of the court. If, on the other hand, a defendant has not been negligent in suffering a default judgment to be rendered against him by a court which had jurisdictional power to render it, or in permitting it to become final, and if he has a meritorious defense to the suit, he may still have the suit tried on its merits with the right to require the plaintiff to prove his case and the corresponding right to establish his defense. . Only if a court had no jurisdictional power to render the judgment should a negligent defendant or one with no meritorious defense to the suit be able to relieve himself of the burdens and consequences of a default judgment.

345 S.W.2d at 710-11. Moreover, the latest expression of the Supreme Court on the subject emphasizes that the bill-of-review movant must negate fault or negligence. Baker v. Goldsmith, supra, at 407, 408, 409 and 410. Hence, we conclude that Mrs. Jarrett had the burden to negate any fault or negligence on her part.

Next, Mrs. Jarrett contends that the evidence conclusively established that she was not negligent. She points to the testimony that she was not versed in business; she was flown to Austin by Northcutt to confer with his lawyer, who they thought was representing both of them, in a midnight conference, and in less than twelve hours was called upon to sign a property settlement agreement she did not have time to read and of which she was not given a copy; after she continued to live with Northcutt, she was called upon to sign the waiver of process prior to the time the divorce was' filed by the attorney she mistakenly thought was representing her; and she was incapacitated by serious injuries in an automobile accident and was out of the hospital only a few days when the divorce hearing was held without any notice to her. Meanwhile, she was being represented in her personal injury case by the same attorney, who subsequently represented Northcutt in the child custody case she brought, and it was not until then that she realized “she had probably been bilked in the property settlement agreement.”

Mrs. Jarrett then invokes the jury’s findings that she placed trust and confidence in the attorney; she relied upon that trust and confidence; her reliance was reasonable; and the trust and confidence, and her reliance thereon, resulted in undue advantage being taken of her so as to prevent her making her rightful claims in the prior proceedings. She submits that her relationship of trust and confidence with the attorney, who represented Northcutt in the property settlement agreement, lessened and probably eliminated, under a line of fraud cases exemplified by Courseview, Incorporated v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1957), any duty to pursue her rights and remedies. Coupling her reliance on the relationship of trust and confidence with the testimony, Mrs. Jarrett argues that she was under no duty to use any means to pursue her rights and remedies until she was put upon inquiry by matters arising out of the child custody proceeding in April of 1973.

Inherent in Mrs. Jarrett’s argument incorporating legal principles set forth in Courseview is her tacit adoption of certain jury findings of wrongful acts on the part of Northcutt, acting alone or with others. Aside from the fact that the jury further found that none of these acts prevented Mrs. Jarrett from presenting her rightful claims in the prior proceedings, the Course-view opinion explicitly stated that each case must rest on its own facts. Explanatorily, the Court said:

[T]he existence of a relation of trust and confidence does not change the rule that diligence in discovering the fraud is required but does affect the application of the rule. . . . The fiduciary relationship is therefore one of the circumstances to be considered in determining whether fraud might have been discovered by the exercise of reasonable diligence. It may excuse the defrauded party from' taking action that would be required in an arm’s-length transaction or from making as prompt or searching investigation as might otherwise be expected. In some situations there is no legal duty to use means available for discovering the fraud .. We are not prepared to say, however, that one in a relationship of trust and confidence is always justified as a matter of law in neglecting every precaution until something occurs to arouse his suspicions.

312 S.W.2d at 205. Necessarily, then, the record in this cause must be reviewed to determine if there is conclusively established a lack of fault or negligence on the part of Mrs. Jarrett.

The parties were married for sixteen years. Mrs. Jarrett signed income tax returns, knowing they had to pay a lot of money. She knew their estate was large enough to require some special provisions insofar as a last will and testament was concerned. About a week after Mrs. Jarrett told Northcutt she loved the man she later married, they made the trip to Austin to see the attorney. Prior to the trip, they initialed each of the four pages prepared as a listing of their property from which the property settlement was prepared. The attorney testified that Mrs. Jarrett read the agreement before she signed it. The agreement contains the following language:

Second Party [Mary Lou Northcutt] has no attorney, but represents and warrants to said attorney [retained by Northcutt] that she has voluntarily and of her own volition without duress, threats or undue influence entered into the property settlement agreement with First Party [Pat L. Northcutt] prior to coming into such attorney’s office; and she further warrants and represents it to be a fact that she has had explained to her that she has a legal right to hire an attorney of her own choice and to confer and consult with such personal attorney of her own choice outside the presence and hearing of the First Party or his attorney to discuss this property settlement agreement, or any portion thereof, prior to signing the same; and Second Party further warrants and represents that she fully understands the contents of this property settlement agreement as having been made with First Party prior in time to any discussion with First Party’s attorney, and she further warrants and represents it to be a fact that she understands that First Party’s attorney is relying on such representations and warranties herein made by Second Party pertaining to her having made the agreements hereinafter set forth of her own free will and volition without fear of threats, duress, undue influence, or fraud .

Mrs. Jarrett acknowledged that she was told she could see another attorney and, admittedly, she knew she “was signing away everything,” when she executed the property settlement agreement. The executed agreement carries her acknowledgment before a notary public. She was informed of the divorce the day the prior judgment was rendered, and she replied, “Good.”

The foregoing summarized statements of evidence from the record manifests that inconsistent and conflicting testimony, coming in the main from interested parties, merely created fact issues whether Mrs. Jarrett was without fault or negligence in the rendition of the prior judgment or in permitting it to become final. So, we are precluded from saying that Mrs. Jarrett established as a matter of law her freedom from fault or negligence.

There remains Mrs. Jarrett’s contention that, if the evidence does not conclusively establish her freedom from fault or negligence, a finding by the court on that issue could be deemed in support of the bill-of-review judgment. Because the pleading and proving of freedom from fault or negligence is, as previously noted, a necessary element of a bill of review, and Mrs. Jarrett neither requested the issue’s submission in substantially correct wording or even objected to its omission, a finding would be deemed only if Northcutt failed to properly object to the omission of the issue. Otherwise, if Northcutt made a valid objection, Mrs. Jarrett waived a finding on the issue. Dittberner v. Bell, 558 S.W.2d 527, 534 (Tex. Civ.App. — Amarillo 1977, writ ref’d n. r. e.).

Acknowledging that Northcutt leveled objections to the court’s charge, Mrs. Jarrett asserts that his objections were so obscured or concealed by voluminous unfounded objections and minute differentiations as to be in derogation of Tex.R.Civ.P. 274. The rule does require that “[a] party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection.” Objections too general and too profuse to meet the rule requirement are insufficient. Monsanto Company v. Milam, 494 S.W.2d 534, 536-37 (Tex. 1973).

While Northcutt’s objections were profuse, he did object to the charge “for the reason that it does not cover the simple questions of law required to be covered in a bill of review case . . . and, three, whether she was without fault or negligence.” The purpose of the rule’s distinctness requirement is to afford the trial court an opportunity to correct any errors in the charge so that the case may be properly submitted. Missouri Pacific Railroad Company v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283, 285 (1960). Northcutt’s objection met the requirement of the rule, and precludes a deemed finding by the court under the conflicting evidence bearing on negligence.

Because Mrs. Jarrett waived a finding on her lack of fault or negligence, one of the controlling issues upon which she relied for recovery under her bill of review, she has not met the burden placed on her by the law. In reaching this conclusion, we have considered all of the facets of the points of error and reply points contained in the briefs of the parties.

The judgment of the trial court is reversed, and judgment is here rendered that Mary Lou Northcutt Jarrett take nothing by her bill of review action. Tex.R.Civ.P. 434.

COUNTISS, J., not participating.

      . Because it is immaterial to our decision, we forego an academic discussion of the consequences of a bill of review seeking relief from only a portion of a judgment asserted to have been rendered by a court lacking jurisdiction.

      . Conformably, the jury made an unchallengportion of the community property. ed finding that Mrs. Jarrett received an unjust


author: MURRAY, Justice.

text:
    EXXON CORPORATION, Appellant, v. William BUTLER, Appellee.
    No. 16224.
    Court of Civil Appeals of Texas, San Antonio.
    July 25, 1979.
    Rehearing Denied Aug. 8, 1979.

      Frank G. Harmon, Walter B. Morgan, Michael Paul Graham, Baker & Botts, Houston, for appellant.
    Eugene B. Labay, Cox, Smith, Smith, Hale & Guenther, San Antonio, for appel-lee.
   OPINION

MURRAY, Justice.

This suit was brought by William Butler, appellee, and two others as lessors against Exxon Corporation, appellant, to recover alleged deficiencies in gas royalty payments under the terms and provisions of four oil and gas leases covering lands owned by the lessors in the Atkinson gas field located in Karnes and Live Oak Counties, Texas. The case was initially tried before the court without a jury and resulted in a take-nothing judgment, which the lessors appealed. The case was transferred on docket equalization by the Supreme Court from the San Antonio Court of Civil Appeals to the El Paso Court of Civil Appeals. The El Paso Court of Civil Appeals affirmed the judgment of the trial court that the lessors were entitled to no additional royalties on three of the leases, but reversed and remanded the case on one of the leases for further proceedings in the trial court in accordance with the opinion of the court of civil appeals. The Supreme Court of Texas refused applications for writ of error by both the lessors and Exxon with the notation, “no reversible error.” The El Paso Court of Civil Appeals opinion is reported at 559 S.W.£d 410.

Following the issuance of the mandate on remand, and without hearing further evidence, the court entered judgment in favor of William Butler in the amount of $2,385.34 for additional royalties on gas production attributable to the lease in question. William Butler was the only plaintiff who owned any royalty interest under the lease in question. Therefore, the judgment denied any recovery to the other lessors. The judgment also denied any claim for prejudgment interest. From this judgment, Exxon has timely perfected this appeal.

When gas from the lease in question was ready for production in September, 1971, Exxon contracted with LoVaca Gathering Company to sell the gas from this lease at a price of twenty cents per mcf. Before entering into the LoVaca contract, Exxon attempted to find other purchasers for the gas. These efforts, however, were unsuccessful. LoVaca was the only purchaser of gas in the field at any material time; thus, it constituted the only market. It is undisputed that when Exxon entered into the gas sales contract with LoVaca, the price paid by LoVaca for the gas was the highest price being paid by LoVaca anywhere in the area, and that the contract terms and conditions were as good as could have been obtained from any other purchaser. In the fall of 1972, Mr. R. E. Haas, the only other producer of gas in the field, completed a new well and contracted to sell the gas from that lease to LoVaca for the record price of thirty-five cents per mcf. Still later, Haas was able to negotiate a higher price with LoVaca for his share of the gas produced from other wells in the field. Exxon continuously attempted to obtain a higher price for the gas produced from the field including the lease in question, but was unsuccessful. It is undisputed that Exxon has at all times paid royalties to William Butler on the basis of the net proceeds received from the sale of the gas, which was being delivered to the only purchaser in the field at the price fixed under a good faith, binding contract.

The gas royalty provision of the lease in question provides: “In consideration of the premises the said Lessee covenants and agrees ... to deliver to the credit of the Lessor . . . Vi6th of the market value at the well of all gas produced, and saved from said leased premises.”

In its first three points of error, Exxon essentially argues that there is no evidence to support the judgment of $2,385.34 because the market value at the well of gas, which has been sold pursuant to a bona fide contract that was prudently entered into, is the price for which that gas is sold less the ordinary marketing costs. In its fourth point of error, Exxon contends that the trial court erred in entering judgment for additional royalties because the undisputed evidence establishes that the royalty payments made to William Butler were paid in compliance with the provisions of the division order, which was executed and accepted by William Butler as a valid agreement binding on all royalty payments. The evidence is undisputed that Exxon has paid William Butler all royalties due if their interpretation of market value is correct.

Exxon presents a very persuasive argument that the market value at the well of gas, which has been sold pursuant to a bona fide contract that was prudently entered into, is the price at which the gas is sold less the ordinary marketing costs. Nevertheless, the law of this case, as established by the El Paso Court of Civil Appeals, is otherwise.

The law of the case doctrine is the rule under which an appellate court on a subsequent appeal is bound by the prior decision on a former appeal in the same case. The phrase, “law of the case,” as applied to the effect of a decision of an appellate court in an earlier appeal in the same case, merely expresses, in the absence of a statute, the practice of courts generally to refuse to reopen what has been decided, and is not a limit to their power. The law of the case doctrine applies irrespective of whether the decision of the former appeal is right or wrong. The doctrine applies even in situations in which the court, upon a later appeal, specifically finds or strongly intimates that the decision on the former appeal was erroneous. Elliott v. Moffett, 165 S.W.2d 911 (Tex.Civ.App. — Texarkana 1942, writ ref’d w. o. m.); Trinity & B. V. Railway Co. v. Geary, 169 S.W. 201 (Tex. Civ.App. — El Paso 1914), rev’d on other grounds, 107 Tex. 11, 172 S.W. 545 (1915).

An exception to the doctrine of the law of the case exists where the decision on a former appeal was clearly erroneous. Connecticut General Life Insurance Co. v. Bryson, 148 Tex. 86, 219 S.W.2d 799 (1949); Miller v. Winn, 28 S.W.2d 578 (Tex.Civ.App. —Fort Worth 1930, writ ref’d). In Connecticut General Life Insurance Co. v. Bry-son, our Supreme Court stated:

Rarely has this Court ever consented to re-examine, on the second appeal of a case, its holding on the first appeal on the same case, but its authority to do so and to enter judgment in conformity with its decision upon re-examination, even though such judgment overrules the prior judgment, cannot be questioned. For reasons which will appear in this opinion we have concluded that this is a proper case for the exercise of that authority. The whole case is before us with no change of parties. It would be unthinkable for this Court, after having granted the writ, reconsidered the case, and arrived at the conclusion that the opinion on the former appeal was clearly erroneous, to hold that it is bound by considerations of consistency to perpetuate that error. Our duty to administer justice under the law, as we conceive it, outweighs our duty to be consistent.

148 Tex. at 88-89, 219 S.W.2d at 800 (citations omitted).

The El Paso Court of Civil Appeals’ opinion in this case holds that market value means the prevailing market value at the time of the sale, and the sale occurs at the time of delivery to the purchaser. In so holding, the El Paso Court of Civil Appeals followed Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866 (Tex.1968). We interpret the opinion of the El Paso Court of Civil Appeals to hold that the market value of the gas production from this lease must exceed the contract price, and unless this holding is clearly erroneous, it becomes the law of the case. Until Vela is determined by our Supreme Court to be incorrect, we cannot hold that the El Paso Court of Civil Appeals’ opinion is clearly erroneous. The Supreme Court has granted a writ of error on points that attack the holding in Vela in Exxon Corporation v. Middleton, 571 S.W.2d 349 (Tex.Civ.App.- — Houston [14th Dist.] 1978, writ granted). If the Supreme Court should determine in Middleton that the market price of gas is the price fixed under a good faith, binding contract, then the opinion of the El Paso Court of Civil Appeals in this case would be clearly erroneous.

By its last point of error, Exxon argues that the trial court erred in entering judgment for additional royalties because the royalty payments made to Butler were paid in compliance with the provisions of the division order, which was a binding contract executed and accepted by Butler. We disagree. What we have said above concerning the law of the case applies equally well to this point. This contention was decided adversely to Exxon by the El Paso Court of Civil Appeals, and we cannot say that it was clearly erroneous.

Appellee urges by cross-points that the trial court erred in failing to enter judgment for additional amounts of royalty based upon the opinion testimony of their expert witness, Max Powell. It is undisputed that the amount of additional royalties based on the testimony of Powell would be $3,467.12. Much of Powell’s testimony is summarized in the El Paso Court of Civil Appeals’ opinion at page 413 and will not be repeated here. We interpret appellee’s argument under these points to be that the amount of additional royalties to be paid Butler is established as a matter of law by the testimony of Powell. We disagree.

The holding of the El Paso Court of Civil Appeals concerning Powell’s testimony was as follows:

Thus, we believe that the Butlers are entitled to recover from Exxon a gas royalty payment for all gas sold under Lease No. 510266 based on market value at the time of delivery during the period from October 1, 1972, until October 1, 1975. In making such determination, we disapprove of the trial Court’s alternative conclusion that market value should be based upon the volume-weighted average of all committed gas delivered in the market area. While we may not make initial findings for the first time on appeal, we believe that since Exxon did not offer testimony to refute the conclusions reached by Mr. Powell as to market value, that the trial court may take those figures of Mr. Powell as to market value each quarter and multiply them by the amount of gas delivered each quarter under Lease No. 510266 and properly arrive at the royalty due, plus such determination as may be made concerning interest for past due sums.

559 S.W.2d at 417 (emphasis added) (footnote omitted).

It is clear that the El Paso Court of Civil Appeals did not consider that the market value of the gas royalty payments was established as a matter of law by Powell’s testimony. If Powell’s testimony was conclusive, the El Paso Court of Civil Appeals could have well rendered and not remanded the case to the trial court. The judgment of the trial court was remanded with instructions to make a new determination of “market value” based on the evidence. We believe, however, that the El Paso Court of Civil Appeals was correct in holding that Powell’s testimony could be considered. Powell testified that in his opinion there was not an actual market in the Atkinson field, and he gave his opinion of market price based on comparable sales in the area. He also testified that on arriving at market value he did not consider the gas purchase contract entered into between Exxon and LoVaca.

We believe the correct rule is stated in Texas Oil & Gas Corporation v. Vela, 405 S.W.2d 68 (Tex.Civ.App. — San Antonio 1966), rev’d in part, aff’d & reformed in part, 429 S.W.2d 866 (Tex.1968). In Vela, Judge Barrow, writing for the court of civil appeals, stated:

In our opinion the proper rule is that the price paid under a gas purchase contract entered into between lessee and a third party is not necessarily the ‘market price’ as provided for in the lease. However, this price, together with the circumstances of such contract, should be considered along with evidence of comparable sales to determine the market price.

405 S.W.2d at 74. The court also stated, “All parties agree that comparable sales of gas are those comparable in time, quantity, quality, and availability of marketing outlets.” Id. These holdings were upheld by the Supreme Court. Accordingly, the trial court in the present case did not err in failing to enter judgment based solely on the testimony of Powell.

Appellee’s final cross-point complains of the action of the trial court in failing to award prejudgment interest on the judgment. Appellee’s claim of prejudgment interest is based on Article 5069-1.03, which reads as follows:

When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.

Tex.Rev.Civ.Stat.Ann. art. 5069-1.03 (Vernon 1971).

We agree with appellant that the trial court was correct in denying prejudgment interest under the circumstances in this case. The statute requires that the contract provides the means for ascertaining the sum due and payable. This contract provides that the appellant shall pay the appellee the market value at the well of all gas produced, but does not provide a formula to determine the market value.

In Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978), the contract by its terms provided the means for ascertaining the sum due and payable each month. The payments for gas delivered by Stahl each month were to be based in part on “the weighted average price received” by Phillips from all of its sales of Panhandle field gas to third parties during the preceding month. The Supreme Court held that the means of ascertaining the sum payable was provided in the written contract and allowed prejudgment interest.

In Exxon Corporation v. Jefferson Land Co., Inc., 573 S.W.2d 829 (Tex.Civ.App.— Beaumont 1978, writ filed), the court disallowed prejudgment interest in a case similar to this case. We agree with the Beaumont Court of Civil Appeals when it stated:

Until the question of how to arrive at the market value of natural gas at the well head in an intrastate situation where the producer is selling the gas to some customers under preexisting contracts at less prices than prevail today is finally settled by the courts, we cannot say that the amount of damages sustained by lessors was definitely determinable.

573 S.W.2d at 832.

The judgment of the trial court is affirmed.

KLINGEMAN, J., not participating.