author: STEPHENSON, Justice.

text:
    Charles ELROD, Appellant, v. Gus BECKER et al., Appellees.
    No. 7811.
    Court of Civil Appeals of Texas, Beaumont.
    April 15, 1976.
    Rehearing Denied May 13, 1976.
    Jack Fisher, Beaumont, for appellant.
    James D. McNicholas, Beaumont, Charles L. Laswell, Houston, for appellees.
   STEPHENSON, Justice.

Charles Elrod brought this suit to recover commissions on the sale of lots in a real estate development. Defendants — Gus Becker; Charles Kelley; Vernon Hicks; Guy Dalrymple, d/b/a Wildwood Association — were the original owners; and defendant, Recreation World, Inc., was their assignee. This is an appeal from a judgment granting motions for summary judgment filed by all defendants.

Simply stated, the motions for summary judgment filed in the trial court, and the briefs filed in this court, make it clear that this controversy centers around Tex.Rev. Civ.Stat.Ann. art. 6573a (The Real Estate License Act) (1969). It is admitted that by the pleadings and summary judgment proof, the plaintiff does not have a real estate broker’s license which is required by that act in order to maintain such a suit as this.

Plaintiff’s position in this court is that because of his relationship with defendants, he is exempt under Tex.Rev.Civ.Stat.Ann. art. 6573a §§ 6(3) and 6(4) (1969) of that act. The pertinent parts of § 6(3) read as follows:

“The provisions of this Act shall not apply to any person acting as attorney-in-fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale.”

The pertinent parts of § 6(4) read as follows:

“This Act shall not apply to the sale . of any property, when such sale . is made by the owner, . or his . regular employees, unless the owner ... is engaged wholly or in part in the business of selling real estate.”

The summary judgment proof in this case shows the following: November 1,1972, the four individual defendants, doing business as Wildwood Association, as owners, entered into a written agreement with Piney-woods Properties, Inc., (P.P.I.) for the sale of lots in Wildwood Resort City. Under the terms of that contract P.P.I. was to receive a prescribed commission for selling such lots among many other provisions, the contract could be cancelled by either party upon thirty days written notice. The last paragraph reads as follows:

“This Agreement is personal to PPI and to Principal and may not be assigned by either of them, but otherwise the obligations hereof shall be binding upon and the benefits hereof shall inure to the parties hereto and their respective heirs, successors, legal representatives and assigns.”

December 29,1973, the operative parts of a written instrument was executed between P.P.I. and plaintiff, to-wit:

“For Ten Dollars and other good and valuable considerations, receipt of which is hereby acknowledged, Pineywoods Properties Inc., does hereby sell and bequeath to Charles Elrod all its right, title and interest in the following:
“A certain existing sales contract with Wildwood Association which contract is nontransferable and is cancellable upon 30 days notice by either party.
“The right to enter into a sales agreement with Wildwood Association, without protest by Pineywoods Properties Inc.
“All accounts receivable and all residual earned commission due from Wild-wood Association to Pineywoods Properties, Inc., as to December 20, 1973 and all commissions earned subsequent to December 20, 1973.
“All goods, property and records owned or claims thereto.
“Charles Elrod agrees to pay any outstanding commissions due as of December 20, 1973 and to assume liability for any commission due thereafter. Charles El-rod also agrees to assume any utility bills incurred as of December 20, 1973.”

A list of names, sales prices and commissions due was attached to the above instrument, showing the information as of December 31, 1973.

January 4, 1974, plaintiff made a loan from the Peoples State Bank of Kountze in the amount of $6,000, and he executed an installment note in that amount together with a written assignment of residual commissions due by an attached list of individuals who owed the money shown to Wild-wood Association who owed the same amount to plaintiff. The total amount of such residual commissions was $11,971.58 as certified by R. R. Samford as escrow agent for Wildwood Association. According to such assignment, Wildwood Association was requested and authorized to pay seventy percent of such funds directly to the bank. Such assignment showed it was agreed to and accepted by Wildwood Association and was signed by Austin Scroggins and R. R. Samford.

This being a summary judgment case, the movants had the burden of proof of negating as a matter of law that this transaction was exempt under Section 6(3) and (4) of Tex.Rev.Civ.Stat.Ann. art. 6573a (1969). We have come to the conclusion that movants have discharged their burden.

Section 6(3) says, in effect, that the act does not apply to sale by a person acting as attorney-in-fact under a duly executed power of attorney from the owner. The uncon-troverted evidence shows plaintiff did not have a duly executed power of attorney from the owners.

Section 6(4) says, in effect, the act shall not apply to a sale by the owner, or his regular employees, unless the owner is engaged wholly, or in part, in the business of selling real estate. The uncontroverted evidence in this case shows these owners were engaged, at least in part, in the business of selling real estate. Plaintiff would have this court place a strained construction on the term “in the business of selling real estate.” Under our construction, the owner would not have to sell a lot personally to be in the business of selling real estate. We hold that these owners, by buying, developing, and subdividing a tract of land, were in the business of selling real estate even though they may never have sold a lot in person. See Macphee v. Kinder, 523 S.W.2d 509 (Tex.Civ.App.—San Antonio 1975, no writ), and Gregory v. Roedenbeck, 141 Tex. 543, 174 S.W.2d 585 (1943).

Our courts require a strict compliance with the terms of the Real Estate Dealers License Act if a salesman is to use the courts for recovery for his services. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960).

AFFIRMED.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    In the Interest of Anthony Joseph KAMONT, a minor.
    No. 8666.
    Court of Civil Appeals of Texas, Amarillo.
    April 19, 1976.
    Rehearing Denied May 17, 1976.

      Jack Hazlewood, Amarillo, for appellant.
    Morehead, Sharp, Tisdel & White, Charles G. White, Plainview, for appellee.
   REYNOLDS, Justice.

The Texas Family Code question determinative of this appeal is whether a parent’s pending suit affecting the parent-child relationship is subject to dismissal without a resolution of the merits when it is shown that the other parent is entitled to possession of the minor child, who is within this state for less than twelve months, by virtue of a valid order by a court of another state. We hold that it is. Affirmed.

During the marriage of Amaryllis Floy Bryan and Joseph Anthony Kamont there was born a son, Anthony Joseph Kamont, whose interest is involved in this, the latest litigation between the parents. Amaryllis and Joseph were divorced by a 12 January 1973 decree of the Circuit Court of Okaloo-sa County, Florida, which adjudged that Amaryllis, who then lived with Anthony in Amarillo, Texas, was to have custody and control of Anthony and that Joseph was to have reasonable visitation rights. On 17 April 1973, upon the complaint of Amaryllis that Joseph had removed Anthony from Texas to Florida in violation of the court’s order, the Florida court ordered that Anthony be returned to Amaryllis pending a final hearing. On the following day, Joseph filed in the proceedings his petition for a change of custody. At the final hearing of these matters, on 2 July 1973, the Florida court changed the permanent custody of Anthony to Joseph. Thereafter on 23 July 1973, Joseph instituted habeas corpus proceedings in the Chancery Court of the Second Judicial District of Harrison County, Mississippi, seeking to compel Amaryllis to surrender custody of Anthony to him. Amaryllis joined the issue. The appellate record does not reveal an order making disposition of the Mississippi proceedings. Subsequently, Amaryllis petitioned the Florida court to modify its 2 July 1973 judgment to vest her with custody of Anthony. The Florida court then entered its 7 August 1974 judgment denying the change of custody application, but permitting Amaryllis reasonable visitation rights, including the right to have Anthony visit with her outside the State of Florida at specified times.

On 2 September 1975, during a Texas visitation with Anthony permitted by the Florida court’s 7 August 1974 order, Amaryllis instituted the present proceedings in the 64th Judicial District Court of Hale County, Texas. Alleging that the July 1973 order by the Florida court vesting custody in Joseph is not entitled to full faith and credit because that court did not have jurisdiction of the subject matter or of her, Amaryllis sought judgment declaring that the January 1973 order of the Florida court granting her custody is valid and in full force, decreeing that she be appointed managing conservator of Anthony, and requiring Joseph to contribute to Anthony’s support. She also sought an immediate order of temporary right to possession of Anthony and a temporary restraining order to prevent Joseph from interfering with her possession. Attached to the pleadings was Amaryllis’ affidavit, sanctioned by V.T. C.A., Family Code § 14.08 (1975), to accompany a motion to modify a former order providing for managing conservatorship or support, alleging matters why continued possession by Joseph will endanger the physical health and impair the emotional development of Anthony.

On presentation of the pleadings, the trial court entered, without notice, an order appointing Amaryllis temporary managing conservator and restraining Joseph from removing Anthony from the care of Amaryllis or the jurisdiction of the court pending notice and a hearing. The hearing was set for 12 September 1975 to determine whether the order should be continued until a final decree was entered in the suit.

On the day set for the hearing, Joseph appeared and answered. He pleaded, among other matters, that full faith and credit should be given to the Florida court’s decrees and that the court should order Amaryllis to immediately deliver Anthony to him.

The court heard the testimony given by Amaryllis and Joseph, together with the exhibits introduced, and, pending submission of briefs by counsel, continued in effect its 2 September 1975 order. On 20 November 1975, the trial court rendered judgment, consistent with its findings of fact and conclusions of law, to the effect that it had no jurisdiction over Amaryllis’ suit except to the extent of ordering Anthony returned to Joseph pursuant to the Florida court’s decree. Specifically finding that Amaryllis had been duly served and appeared in person and by attorney in the Florida proceedings culminating in the 7 August 1974 judgment, which has not been modified, and that Anthony had not been in Texas for at least twelve months immediately preceding the filing of the present proceedings, the court concluded as matters of law that: (1) the Florida court had jurisdiction over the subject matter and the parties; (2) the 7 August 1974 Florida judgment is valid and entitled to full faith and credit; (3) Anthony should be returned to Joseph; and (4) the trial court had no jurisdiction to proceed further with Amaryllis’ suit. Amaryllis has appealed.

Although Joseph’s pleadings were not cast in the classic habeas corpus mold, they were sufficient to invoke the application of V.T.C.A., Family Code § 14.10 (1975), reading, in part:

(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing con-servatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.

Neither the trial court’s factual findings nor their evidentiary support has been attacked. Thus, under the clear direction of the statute, when the court found that the right to possession of Anthony, who had been in Texas less than a year, is governed by the valid, unmodified Florida court judgment, the trial court was required to disregard Amaryllis’ pending suit, the legal effect of which was to seek a modification of the Florida judgment, and to compel the return of Anthony to Joseph pursuant to the Florida judgment.

Notwithstanding, Amaryllis first contends that as a matter of law § 14.10 does not operate to deprive the court of jurisdiction to determine her prior, pending suit affecting the parent-child relationship brought under Chapter 11 of the Family Code. The crux of her argument is that her suit was a new and independent action involving the full jurisdiction of the court to determine the question of managing con-servatorship for the best interest of Anthony, and that § 14.10 does not bar its consideration because § 14.10 applies only to a cross-action filed in response to a habeas corpus proceeding or to a pending motion to modify a Texas judgment. We do not consider the contention tenable.

Obviously, § 14.10 was enacted to change the former Texas law viewing a contested habeas corpus proceeding as a new and independent custody suit in which the right to relief depended on proof of a material change of conditions affecting the best interest of the minor child since the last adjudication. See, e.g., Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966). The change worked by subsections (a) and (b) of § 14.10 limits habeas corpus proceedings to the issue whether the applicant is entitled to possession of the child by virtue of a previous court order, either domestic or foreign. If so, the court is directed to disregard any pleading, filed either before or after the habeas corpus issue arises, which seeks to relitigate the right to the child’s possession. To accept the argument that § 14.10 applies only to a cross-action or to a pending modification of a Texas judgment and not that of another state would be to reinstate the law changed by the Family Code and would encourage, clearly contrary to the statutory wording, a race to the courthouse by the non-possessory local parent seeking to use the recent presence of child in this state as the means to relitigate the issue adjudicated by the court of another state. This we may not do. The first point is overruled.

Secondly, Amaryllis complains that the trial court erred in dismissing her suit because she is entitled to her day in court to show a want of jurisdiction in the Florida court. In presenting the complaint, Amaryllis has not attacked the trial court’s finding of jurisdiction in the Florida court or the sufficiency of the evidence to support that finding; she merely suggests that the evidence she offered is not all the evidence she would offer at a final hearing.

The complaint comes too late. Amaryllis was not denied the right to offer any evidence available to her on the issue of jurisdiction. We are not authorized to reverse a judgment we find to be correct to allow the losing party an opportunity to introduce evidence that was not offered in the trial court. See Simmons v. Dickson, 110 Tex. 230, 218 S.W. 365 (1920).

The judgment is affirmed.

      Subsequent references to sections are to those sections appearing in V.T.C.A., Family Code.


author: EVANS, Justice.

text:
    BRAZORIA COUNTY et al., Appellants, v. Richard PERRY, Appellee.
    No. 16681.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 22, 1976.

      Ogden L. Bass, Criminal Dist. Atty., Jameson M. Mapel, Asst. Dist. Atty., Angle-ton, for appellants.
   EVANS, Justice.

The central question in this case is whether there was a lending of credit by Brazoria County to a private individual in violation of the provisions of Article III, Sec. 52 of the Texas Constitution.

Appellee was employed as a deputy sheriff for Brazoria County on October 1, 1973. He attended the Harris County Sheriff’s Academy Basic Certification Course from April 29, 1974, through June 7, 1974, and completed that course. On June 19, 1974, appellee signed an instrument which recited the following:

PROMISSORY NOTE
“I, Richard Perry hereby agree to remain as a Deputy Sheriff of the Brazoria County Sheriff’s Department for a period of two (2) years after the completion of the below described Police School, starting and ending . . . April 29-June 7, 1974 ... In event I do not remain for the agreed upon period I hereby agree and obligate myself to pay to BRA-ZORIA COUNTY the full cost of my schooling and the salary paid to me while in attendance at school. This note will become due upon my notice of departure. If I remain for the agreed upon period this note is to be cancelled and returned.
‘AMOUNT OF NOTE: SALARY $866.40
SCHOOLING 25.00
MEALS, ETC. 19.23
TOTAL DUE $910.63"

Appellee admits receiving the funds reflected by this agreement. On October 24, 1974, he terminated his employment with the Sheriff’s Department and shortly thereafter went to work for the Angleton Police Department. He has not repaid the Brazo-ria County any portion of the funds advanced for the law enforcement training program.

In June, 1975, this action was instituted by appellants to recover from appellee the total sum reflected by the employment agreement. In their petition appellants contend that the sum reflected by the agreement constituted damages upon breach of the agreement. The trial court granted appellee’s motion for summary judgment and entered a take nothing judgment against appellants. We reverse and remand.

Article III, Sec. 52 of the Texas Constitution provides in pertinent part as follows:

“Sec. 52(a) Except as otherwise provided by this section, the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company.”

The clear purpose of this constitutional provision is to prevent the gratuitous application of funds to private use. Byrd v. City of Dallas, 118 Tex. 28, 6 S.W.2d 738, 740 (1928); Harris County v. Dowlearn, 489 S.W.2d 140, 144 (Tex.Civ.App.—Houston [14th] 1972, writ ref d n.r.e.). The Constitution does not, however, invalidate an expenditure which incidentally benefits a private interest if it is made for the direct accomplishment of a legitimate public purpose. Byrd v. City of Dallas, supra; Barrington v. Cokinos, 161 Tex. 136, 338 S.W.2d 133, 140 (1960).

Article 4413(29aa), Tex.Rev.Civ.Stat. (1974 Supp.Pamp.), provides that persons appointed as peace officers after September 1,1970, must satisfactorily complete a basic training program in law enforcement within a one-year period from the date of their original appointment. Sec. 7(b) of the same article provides for reimbursement by the Commission on Law Enforcement Officer Standards and Education to each political subdivision for expenses incurred in attending such training programs. The funds paid to appellee while he was attending the law enforcement course represent expenditures for the direct accomplishment of a legitimate public purpose. The agreement on the part of appellee to repay these funds to Brazoria County in the event he did not fulfill the agreed term of his employment did not render the expenditures invalid.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    Billy B. WILLIAMS, Appellant, v. SOUTHERN TRUST & MORTGAGE COMPANY et al., Appellees.
    No. 5561.
    Court of Civil Appeals of Texas, Waco.
    April 22, 1976.
    Rehearing Denied May 27, 1976.

      Andress, Woodgate & Lodewick, Dallas, for appellant.
    Payne & Spradley, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff (and cross defendant) Williams from summary judgment: 1) he take nothing in his suit against defendants Southern Trust and Mortgage Company, H. R. Bright and Bright & Schiff (Southern’s Stockholders); and 2) sustaining defendants’ counterclaim requiring Williams to return stock in Arlin Corporation upon tender into court of $387.73 by defendants.

Plaintiff Williams sued defendants Southern (and its stockholders H. R. Bright and Bright and Schiff) in 1971 alleging that in September 1964 he entered an agreement to work for Southern as Vice President for a stipulated salary, and defendants “granted plaintiff an irrevocable option to purchase * * * 3½% of the stock of Southern at book value [as of] September 1964,” and “further agreed that [when] plaintiff * * * terminated his employment with Southern, defendants would repurchase such stock at its book value * * * at time of plaintiff’s termination”; that plaintiff was employed by Southern until May 1970; that plaintiff during employment repeatedly requested defendants to issue to him written confirmation of the stock option agreement; that defendants continued to confirm such agreement; that when defendant terminated he requested defendants to honor the stock option agreement by paying plaintiff the book value as of May 1970 less the book value as of September 1964; that defendants refused to honor such contract to plaintiff’s damage of $250,-000.00.

In the alternative, plaintiff plead defendants falsely and fraudulently deceived him; that the representations as to the stock option were false and known to be false and defendants did not intend to honor same; that over the years defendants continued to deceive plaintiff by confirming the stock option commitment when not intending to honor same; that plaintiff believed and relied on such representations and agreements, which were false; that but for same would not have gone to work for Southern; that plaintiff has been damaged $350,-000.00; and that defendants false representations were made wilfully with intent to injure plaintiff, for which plaintiff seeks exemplary damages.

Defendants filed answer; and cross action alleging Williams had been sold 40 shares of stock in the Arlin Company; that he had granted Southern an option on such stock in writing; and that Southern exercised such option and tendered the price of same, and prayed judgment for decree requiring performance of such option agreement.

Plaintiff by supplemental petition plead that defendants had agreed he should have stock in a companion real estate operation; that there would be no repurchase option; that contrary to such agreement, and without consideration, defendants required him to execute the option for defendants to repurchase, and prayed defendants take nothing by their cross action.

Defendants thereafter moved for summary judgment that plaintiff has no binding contract for the stock option; that such claim is barred by the Statute of Frauds and the 2 and 4 year Statutes of Limitations; that defendants’ cross action for exercise of the option for defendants to repurchase the Arlin Stock is evidenced by plaintiff’s written agreement to re-sell and should be enforced.

The trial court granted such motion and rendered summary judgment plaintiff take nothing on his suit; that the plaintiff return the Arlin stock to defendants (upon their tender of book value of $387.73).

Plaintiff appeals on one point: “The trial court erred in granting the motion for summary judgment.”

The record consists of the pleadings, the depositions of Williams and Bright, certain exhibits, and the affidavit of minor Miller an employee of Southern.

We revert to that part of the summary judgment that decreed plaintiff take nothing.

Plaintiff plead defendants breached an agreement to let him purchase stock in Southern at book value as a part of his going to work for Southern as a Vice President.

Alternatively plaintiff plead defendants’ representations to let him buy stock in Southern were made without intent to hon- or same, were fraudulent; and made with intent to deceive plaintiff.

Plaintiff had discussions with Bright about going to work for Southern. Salary, moving expenses, business expenses and duties were agreed on prior to the time of employment. Williams wanted an option to buy stock in Southern so that if the business prospered, and the stock went up, he would have capital gains for his efforts. Bright wrote the following memoranda and delivered a copy to plaintiff:

“We propose to inaugurate a program (within a few months after we have reformed our management team) whereby the top 4 of the management group will share in a program which will provide them with an opportunity to acquire an option at the then book value on their portion of a total of 15% of the capital stock of Southern Trust and Mortgage Company. There will be an option granted to Southern to * * * to repurchase the stock from each of the individuals at the book value existing at the time of their retirement or termination. As discussed, this will permit participation in the growth and profit of the organization of those 4 of the management group participating. I have not yet worked out the details of this program but it is intended that the net effect as outlined above be accomplished.”

Williams suggested some revision of the memoranda, but Bright would not agree. Williams then resigned from his job and went to work for Southern on December 15, 1964. He testified he accepted the proposal as contained in the memoranda. Bright testified Williams was one of the “top four” mentioned in the memoranda, and recognized Williams was to receive not less than 3% of the stock; Williams wanted 4%; and Bright wanted “to think about this.” In Arlin, the subsidiary real estate corporation which was organized, Williams received 4% of the stock.

Defendants assert the record conclusively establishes there was no contract because no agreement had been reached on who was to participate (besides plaintiff), what percentage of the stock each should receive, and on what date the book value was to be determined. Defendants further assert plaintiff’s cause barred by the Statute of Frauds, by limitations, and because even under the memoranda Southern had an “option” to repurchase, but did not have to do so.

Summary judgment should be affirmed only if the summary judgment proof establishes a right thereto as a matter of law. Here movants for summary judgment did not carry such burden. Gibbs v. Gen. Mtrs. Corp., Tex., 450 S.W.2d 827; Torres v. Western Cas. & Surety Co., Tex., 457 S.W.2d 50; United Distb. Co. of Tex., Inc. v. Riggs Prop, Inc., CCA (Waco, Tex.Civ.App.) NWH, 496 S.W.2d 719; Farley v. Prudential Ins. Co., Tex., 480 S.W.2d 176; E & E Enterprises, Inc. v. Caston, CCA (Waco, Tex.Civ.App.) NWH, 501 S.W.2d 445; Hebert v. Continental Land Cp, CCA (Waco, Tex.Civ.App.) NWH, 513 S.W.2d 948.

Defendants did not meet or negate plaintiff case as plead on the issue of contract for the stock option; and did not meet or negate plaintiff’s alternative plea of fraud. Fact issues were raised as to whether plaintiff had a contract with defendants for the stock option, and upon whether defendants were guilty of fraud. Defendants did not establish as a matter of law that the Statutes of Fraud and limitation barred plaintiff’s claim. While the memoranda gave Southern an option to repurchase, if it did not do so, Williams owned the stock and could sell it at its market value. The burden of proof was on mov-ants and all doubts are resolved against them.

The existence of fraud is a question of fact for the trier of facts, Drinkard v. Ingram, 21 Tex. 650; Graham v. Roder, S.Ct., 5 Tex. 141; De Leon v. White, S.Ct., 9 Tex. 598; Farnsworth v. Dolch, CCA (Waco, Tex.Civ.App.) NRE, 488 S.W.2d 531; Bates v. First National Bank of Waco, CCA (Waco, Tex.Civ.App.) NWH, 502 S.W.2d 181.

The summary judgment further sustained defendants’ counterclaim against Williams, and required him to return the Arlin stock to defendants upon their tender into Court of $387.73.

Bright wrote the following memoranda: “We propose to commence a companion real estate operation for acquisition and development of property * * * which activity will be participated in by the top four of the management group on the same basis (15% allocated to the top four of the management group on a basis as agreed between themselves with directors approval). There will be no repurchase option against stock ownership or property interest acquired under this set up.”

Bright testified that a companion real estate operation was commenced known as Arlin Development Company, and 4% of the stock was allocated to plaintiff. Before the stock was issued, M. J. Green, President of Southern required plaintiff to sign a repurchase agreement by Southern at book value at time of termination. Plaintiff signed because he had been cautioned by Bright not to let Green know the terms of the Bright-Williams agreement.

Defendants did not establish their entitlement to summary judgment on the cross action as a matter of law.

Plaintiff did not have to establish that defendants were not entitled to summary judgment; but rather defendants had to establish their entitlement to summary judgment as a matter of law. This they did not do.

Plaintiff’s point is sustained.


text:
    Loy Milford McGEE, Appellant, v. Melba Jo McGEE, Appellee.
    No. 8665.
    Court of Civil Appeals of Texas, Amarillo.
    April 26, 1976.

      Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant.
    A. W. Salyars, Lubbock, for appellee.
   REYNOLDS, Justice.

The trial court granted Melba Jo McGee a divorce from Loy Milford McGee and made a division of their community property. Loy charges the trial court abused its discretion by making a manifestly unjust and unfair division of the community property. We do not agree. Affirmed.

In making what the trial court found was “a fair and equitable division of the properties of the parties,” the court set aside to each party specific items of property with an approximate value of $60,000. The charge of abuse of discretion results from Loy’s conclusion that the community interest he actually received was about one-half that awarded to Melba Jo because two items of property found by the court to be community property of the value of $41,-381.77 and awarded to him were properties in which his father owned the substantial interest of $22,600. The two items were (1) the amount of $22,785.20 on deposit in an Oklahoma bank in the name of “Loy McGee, Farm Account,” and (2) the 1975 wheat crop for which Loy held warehouse receipts and to which the court assigned a net community value of $18,596.57. Loy asserts that the evidence establishes his father owned approximately $9,000 of the bank account and approximately $13,575.50 of the wheat crop and, employing twelve points of error, he attacks the court’s contrary findings of community interest by every judicially recognized attack.

Loy launches the attack by claiming that the trial court misplaced the burden of proof and impermissibly applied the statutory presumption that the property was community. His premise is that Melba Jo had the burden to prove the amount and community nature of the estate she alleged the parties possessed and, when he injected evidence of his father’s ownership in the bank account and the wheat crop, she failed to discharge her burden. Loy relies on the principle stated in Harris v. Harris, 174 S.W.2d 996, 999 (Tex.Civ.App.—Fort Worth 1943, no writ), and reiterated in other cases with similar factual situations, to be that “(b)efore [the wife] could recover . the burden was upon her to show [the extent of the] community property to be divided.”

The principle was invoked correctly in Harris when the wife claimed as community property by parol gift the realty that was in the name of her father-in-law who was impleaded and asserted his title. But that is not the situation in the record we review. In the case at bar, the property in issue was shown to be in the name of and possessed by the husband, Loy, at the dissolution of the marriage and, therefore, there is the statutory presumption that the property is community property. V.T.C.A., Family Code § 5.02 (1975). The presumption is, of course, rebuttable, but the burden of refutation falls on the one who seeks to overcome the presumption. Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965). Loy’s father did not intervene to claim any interest in the properties and he was not called to testify; the husband alone asserted his father’s ownership. Be that as it may, there remains the specific attacks on the court’s findings with respect to the two disputed items of property.

Prior to the marriage, Loy had purchased a 160-acre tract of land in Oklahoma although 7/i6th of the purchase price was paid after the marriage with community funds. His father owned 320 acres in the same area which Loy leased under some rental basis referred to as one-third and one-fourth. The arrangement was not explained with exactness, but all farming operations were carried on in Loy’s name and he maintained a farm bank account in an Oklahoma bank in the name of “Loy McGee, Farm Account.” The $22,785.20 amount of the bank account is not questioned.

Loy initially testified that all of the farm income was deposited in the bank account out of which, after payment of expenses, his father received his rental share at the end of each year; however, when asked specifically if his father’s one-third and one-fourth share was or was not deposited in the account, Loy replied that his father’s share was deducted before the deposit and it did not go into the account. Loy’s accountant testified to an allocation he made of the 9 June 1975 bank balance of $23,-961.63 between Loy and his father. The sum of $9,111.87 was allotted to the father; however, the division was not made from farm production or deposit slips information, but from listings prepared by Loy’s father which the accountant found in the bank statements he reviewed. Each deposit slip shown to and identified by the accountant as reflecting income from the father’s acreage showed an unaccounted for deduction from the gross receipt to arrive at the amount deposited, but those slips identified as reflecting income from Loy’s farm revealed no deductions before deposit.

The statutory presumption that the account contained only community funds attached upon proof that the account was in the name of and possessed by the husband, Loy, at the dissolution of the marriage. Although a portion of the testimony of Loy and his accountant, if believed, would rebut the presumption and lead to a finding that Loy’s father owned an interest in the account, the other testimony of Loy, if believed, was that his father’s share was not deposited in the account. This latter testimony is consistent with the deposits reflected by the deposit slips and with Loy’s and Melba Jo’s 1974 federal income tax return reporting as their farm income the exact amount of the total deposits made to the account for the same period.

It was the trial court’s province, as the finder of the facts, to judge the credibility of the witnesses and the weight to be given to their testimony and to resolve the conflicts and the inconsistencies in the testimony. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 563 (1952). In the role of fact finder, the court could believe all or none of the testimony of any one witness or accept the testimony in part while rejecting it in another part. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817, 820 (1957). Under these criteria, the court was justified in believing the evidence that the bank account was community property in which Loy’s father owned no interest.

The 1975 wheat crop consisted of 2212.33 bushels produced on Loy’s farm and 5944.33 bushels produced on his father’s acreage. The court found the community net value of the wheat to be $18,596.57. Loy attacks this finding as being, inter alia, absolutely without evidentiary support; yet, conceding the 2212.33 bushels to be community property, he uses the court’s value to compute, by percentage, the value of the 5944.33 bushels produced from his father’s land at $13,575.50, the amount he claims his father owns. Overlooked in this computation is the fact that, pursuant to the farming arrangement, the community owned two-thirds, or 3962.89 bushels, of the wheat produced on the father’s acreage.

The record does not detail the mechanics of the $18,596.57 finding; nevertheless, it is mathematically demonstrable that the figure resulted from assigning the (2212.33 + 3962.89) 6175.22 bushels belonging to the community estate a value of $3.40 per bushel and deducting the cost allocated to harvesting those bushels. The evidentiary support for the value of $3.40 per bushel is vigorously challenged.

Loy testified that the market price was $2.80 per bushel, that the price had “gone up considerably” and he did not know what it was on the day of the hearing, but that $4.00 was “too much.” It is the rule that the fact finder is at liberty, by blending all the evidence admitted, to fix value within the range of the testimony. McConnico v. Texas Power & Light Company, 335 S.W.2d 397, 399 (Tex.Civ.App.—Beaumont 1960, writ ref’d n.r.e.). Moreover, if it could be seriously argued that the court was in error in fixing the per bushel value at sixty cents more than the $2.80 price Loy testified the value had gone up considerably from, the error would be harmless. The court is not required to divide the community estate equally; the requirement is a division that the court deems just and right. V.T.C.A., Family Code § 3.63 (1975). The difference between the $2.80 and $3.40 value is only $3,705.13, and Loy’s receipt of that much less than Melba Jo in the division of a community estate approximating $120,000 does not constitute an abuse of discretion. See, e. g., Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974).

In brief, we have applied the standards of evidential review required by the points of error and we are of the opinion that: the asserted ownership of Loy’s father in the two items of property was not conclusively established; there is some evidence of probative force to support the court’s challenged findings; the evidence in support of the findings is not so weak, or the contrary evidence is not so overwhelming, as to warrant the setting aside of the findings; and the findings are not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. All points of error are overruled.

The judgment is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Frank D. TOMPKINS, Jr., et al., Appellants, v. Juanita Swick HOLMAN et al., Appellees.
    No. 12399.
    Court of Civil Appeals of Texas, Austin.
    April 28, 1976.
    Rehearing Denied May 19, 1976.
    Kirk Kuykendall, Lockhart, Kuykendall & Jones, Austin, for appellants.
    Coleman Gay, Gay & Latting, Austin, for Juanita Swick Holman.
    Sam Houston Clinton, Jr., Clinton & Richards, Austin, attorneys and Temporary Administrator of the Estate of Brooks Natt Holman, Deceased.
   PHILLIPS, Chief Justice.

The principal question in this case is whether the trial court was correct in granting appellees’ motion for summary judgment based on appellees’ plea of res judicata.

Appellants brought this suit against Juanita Swick Holman and her husband, Brooks Holman, seeking to set aside a deed to certain land in Harris County, title to which had been in Etta Tompkins now deceased. Etta Tompkins was the mother of the appellants and the grandmother of ap-pellee Juanita Swick Holman, Brooks Holman, who became the executor of Etta Tompkins’ estate at her death, subsequently conveyed the property to his wife, the ap-pellee Juanita Swick Holman. Sam Houston Clinton, temporary administrator of the estate of Brooks Holman, now deceased, was substituted as a party for Holman after his death.

Under the terms of Etta Tompkins’ will, her undivided one-half interest in the land in question was devised to her five children. Her husband had previously died intestate and appellants already owned four-fifths of his one-half of the property.

When appellants learned that Brooks Holman, as executor of Etta Tompkins’ estate, had conveyed her one-half interest in the property to his wife Juanita in 1969, they instituted a suit in Harris County for trespass to try title. The suit was pleaded in the general unlimited form usually ascribed to this type of suit. In May, 1973, a take nothing judgment was entered against appellants in that suit and title to the undivided one-half interest was vested in Juanita Swick Holman. That judgment became final.

Subsequently, in August, 1973, appellants filed suit in the district court of Travis County, seeking to set aside the deed from Brooks Holman to Juanita Swick Holman, maintaining that the deed should be declared void as supported by no or insufficient consideration, and as being in violation of Tex.Prob.Code Ann. § 352 (1956), and in the alternative, alleging that since appellees’ legal title was “based upon such wrongful acts as to constitute a fraud perpetuated upon these plaintiffs that she is holding such legal title under a constructive trust which should be executed by the Court for the benefit of Plaintiffs.”

Appellees answered with a general denial, and a plea of res judicata based upon the 1973 trespass to try title judgment in favor of Juanita Holman, attaching the pleadings, depositions, and judgment in that cause. The district court then granted appellees’ motion for summary judgment based upon appellees’ res judicata contention, from which action appellants appeal.

We hold that appellants’ Travis County suit asserts a cause of action to set aside a deed, and as such is not barred by the trespass to try title judgment from Harris County adverse to them.

Appellants contend, and we agree, that their suit to set aside a deed is not barred by the Harris County trespass to try title judgment. We are well aware that the pleadings in trespass to try title put into issue both claims of legal and equitable title, Texas Creosoting Co. v. Hartburg Lumber Co., 12 S.W.2d 169 (Tex.Comm’n App.1929, jdgmt adopted), rehearing denied with written opinion, 16 S.W.2d 255 (Tex.Comm’n App.1929), and that an equitable title has been held to arise from the imposition of a constructive trust. MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944). However, appellants now attempt to assert an equitable right, that is, the right to have an allegedly voidable deed canceled. Such an assertion is clearly distinguishable from the claim of right to title and possession of real property, which is the sine qua non of a suit in trespass to try title. McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315 (1897, writ dism’d w. o. j.), with written opinion, 91 Tex. 147, 40 S.W. 955 (1897); Carl v. Settegast, 237 S.W. 238 (Tex.Comm’n App.1922, jdgmt adopted); Brown v. Ramsey, 472 S.W.2d 322 (Tex.Civ.App. 1971, writ ref’d n. r. e.). The assertion of a mere equitable right will not support a suit for trespass to try title, but must be brought in a separate suit, such as one to cancel a deed. Once successful in setting aside a deed, a party may later proceed to recover title by trespass to try title. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (1942); Carl v. Settegast, supra; 4 Lange, Texas Land Titles § 335 (1961), 56 Tex.Jur.2d Trespass to Try Title § 3 at 61 (1964).

The distinction between a cause of action to set aside a deed, and one for trespass to try title is further illustrated by the fact that the four-year statute of limitations is applicable to the former, while the latter cause of action, being one for the recovery of real property, is not subject to limitations. Brown v. Ramsey, supra.

As appellants have pleaded a cause of action to set aside a voidable deed, the Harris County judgment is not a bar. We reverse the judgment of the trial court and remand the cause for trial on the merits.

Reversed and Remanded.

      . Appellants are Frank D. Tompkins, Jr., Florine Lyall and Frances Wood. In the trial court they were also joined by a sister, Ida Berniece Chancery who, later, died and is not an appellant here.


author: PEDEN, Justice. EVANS, Justice

text:
    Elease S. GREENE, Appellant, v. The STATE of Texas, Appellee.
    No. 16726.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 29, 1976.

      Michael P. Mallia, Houston, for appellant.
    Joe Resweber, County Atty., Oliver J. Guiberteau, Marshall Watkins, Asst. County Attys., Houston, for appellee.
   PEDEN, Justice.

This is an appeal from a judgment ordering the appellant involuntarily committed to a mental hospital for a period not to exceed ninety days. The only record before us is a transcript.

Harriet Taylor, adopted daughter of Mrs. Elease Greene, filed a sworn application for temporary hospitalization dated March 3, 1976, stating that Mrs. Greene was not charged with a criminal offense but mentally ill and needed hospitalization for her own welfare and protection and the protection of others. On March 17 the court issued an order and notice of hearing, setting it on March 25. The judge appointed two physicians to examine Mrs. Greene and their certificates were filed with the trial court. On March 22 Mrs. Greene executed this instrument:

"THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF Elease S. Green AS A MENTALLY ILL PERSON >“< >*■■< > — < > — < > — < >"■<>"■■<
I, Elease S. Green , DO HEREBY STATE THAT I DO NOT DESIRE TO BE PRESENT AT THE HEARING ON THE APPLICATION FOR TEMPORARY HOSPITALIZATION FILED WITH THE COUNTY COURT OF HARRIS COUNTY ON MY BEHALF.
I DO HEREBY AUTHORIZE SAID COUNTY COURT TO MAKE ITS FINDINGS UPON THE BASIS OF THE CERTIFICATES OF MEDICAL EXAMINATION FOR MENTAL ILLNESS ON FILE WITH SATD COURT,AND TO ADVANCE THE CASE TO BE HEARD AT THE EARLIEST POSSIBLE DATE."

It was witnessed by her court-appointed attorney, but was not filed with the court until March 24. The trial court had advanced the hearing to March 23 and filed the commitment order with the waiver. On March 25 Mrs. Greene, acting through another attorney, filed a motion to set aside a judgment. It was denied.

Mrs. Greene’s points of error are: (1) the right to be present at commitment hearing cannot be waived, (2) the Texas Mental Health Code is unconstitutional because it does not require the State to prove its case beyond a reasonable doubt, (3) it was error not to give notice to Mrs. Greene of her Fifth Amendment right against self-incrimination, (4) the trial court erred in not considering alternatives to commitment, and (5) the trial court erred in basing its judgment solely on hearsay evidence. We affirm.

There being no statement of facts and no findings of fact or conclusions of law, such facts as are necessary to support the trial court’s judgment must be presumed to have been found. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363 (1945).

We overrule Mrs. Greene’s first point of error. Due process requires the presence of the person proposed to be involuntarily committed at all judicial proceedings conducted for that purpose, Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), unless the right has been knowingly and intelligently waived by such person or by adversary counsel acting in her behalf and for good cause shown. Lynch v. Baxley, D.C., 386 F.Supp. 378 (1974).

We have noted that Mrs. Greene signed a waiver, witnessed by her attorney, stating that she did not desire to be present at the hearing. The appellant has not shown that the trial court failed to meet due process requirements in accepting her waiver of the right to be present.

As to Mrs. Greene’s second point of error, we have found no basis for concluding that the Texas Mental Health Code is unconstitutional for failure to require the State to prove beyond a reasonable doubt that the proposed patient is mentally ill and needs hospitalization for his own welfare and the protection of himself and others. The statutes under which Mrs. Greene was committed, Art. 5547-31 through 5547-39d, provide that the court may order temporary hospitalization (for not more than 90 days) after a hearing (to be held within 14 days) to determine whether the proposed patient is mentally ill and requires observation or treatment for his own welfare and protection or the protection of others. Art. 5547-38(c) states that if the court finds upon the hearing that the proposed patient is mentally ill and requires treatment or observation but that commitment to a mental hospital is not necessary, the court may order the proposed patient to submit to other suitable treatment or observation. We hold that these statutes, entitled “TEMPORARY HOSPITALIZATION FOR OBSERVATION AND/OR TREATMENT,” are not unconstitutional for failure to require the State to prove its case beyond a reasonable doubt. We agree with the holding in Lynch v. Baxley, supra, that the proper standard of proof in this civil hearing is not that of reasonable doubt, “a degree of proof virtually unattainable at this stage in the development of psychiatric medicine.”

The appellant correctly cites In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973), as holding that proof supporting the commitment must be beyond a reasonable doubt. In that case the U. S. Court of Appeals, District of Columbia Circuit, did not hold unconstitutional the D. C. statute authorizing an indefinite commitment but rather held that the appellant was deprived of due process of law because the jury did not determine, beyond a reasonable doubt, that he was mentally ill and consequently dangerous. In our case, since we have no statement of facts before us, we cannot say that the State failed to show beyond a reasonable doubt that Mrs. Greene should have been committed.

Concerning Mrs. Greene’s third point of error, the record does not show whether she was given notice of the privilege against self-incrimination. Even if she was not, it has not been shown that she incriminated herself. The privilege against self-incrimination protects any disclosures which the subject may reasonably believe could be used in a criminal prosecution or which could lead to other evidence that might be so used. Lynch v. Baxley, supra, at p. 394. That privilege does not protect a subject from disclosures which would only tend to reveal mental illness.

Mrs. Greene’s last two points of error are also overruled. Without a statement of facts we are unable to determine what alternatives were or were not considered by the trial court, and there is nothing in the record before us to indicate that the judgment was based solely on hearsay evidence.

Where the record consisted solely of a transcript with no statement of facts and where findings of fact were neither requested nor filed and the judgment recited that the trial court heard and considered the evidence, the Court of Civil Appeals would presume that the trial court found every fact in issue necessary to sustain its judgment. Commercial Credit Corp. v. Smith, supra.

Affirmed.

EVANS, J., dissents.

EVANS, Justice

(dissenting).

There is a serious question, evidenced by the face of the record, as to whether Mrs. Greene was afforded due process in this case.

The application for determination that Mrs. Greene was mentally ill and for a ninety day order of commitment was filed on March 17, 1976. On that same date the court set hearing on the application for March 25, 1976, appointed two physicians, Irving Belz, M. D. and Jules Bohnn, M. D., to examine the patient and appointed an attorney ad litem to represent Mrs. Greene. Also on that same date it issued notice to Mrs. Greene which was served upon her the following day, advising her that the hearing would be had on March 25,1976. On March 23, 1976, the hearing was held on the application and the following day, March 24, 1976, the order of commitment was filed in the proceedings together with the instrument signed by Mrs. Greene dated March 22, 1976, indicating she did not desire to be present at the hearing.

Although it is entirely possible that the paper signed by Mrs. Greene waiving her right to be present at the hearing, was presented to the court at the time of the hearing, the clerk’s file mark raises an inference to the contrary. The order of commitment is silent as to whether the court considered the waiver by Mrs. Greene of her right to be present at the hearing.

In Lynch v. Baxley, cited in the majority opinion, it is stated:

“. . . Waiver by the person to be committed in his own behalf is valid only upon acceptance by the court following a judicial determination that he understands his rights and is competent to waive them. Waiver by counsel in his client’s behalf is valid only upon approval by the court after an adversary hearing at the conclusion of which the court judicially finds and determines that the person proposed to be committed is so mentally or physically ill as to be incapable of attending such proceedings.” (386 F.Supp. 378, 389)

The order of commitment made no express finding with respect to these matters. It did recite that the attorney ad litem had announced ready in the case and that the court proceeded to consider the evidence, including the physicians’ certificates filed in the cause. It awarded the attorney ad li-tem the sum of $25.00 as compensation for his representation of Mrs. Greene. Although the record does not reflect the extent of the court’s determination as to Mrs. Greene’s capability of attending the proceeding, it raises a serious question, in my opinion, as to whether there was a knowing and intelligent waiver by Mrs. Greene or her “representative counsel occupying a traditional adversarial role.” (386 F.Supp. 389)

The certificates of the two physicians contain conclusionary statements that Mrs. Greene “is mentally ill and ... requires observation and treatment in a mental hospital.” The handwritten descriptions of the physicians’ diagnoses of Mrs. Greene’s physical and mental condition on the date of examination are for the most part illegible. It appears doubtful that the conclusionary statements of the physicians suffice as probable cause for detention, even in the absence of opposition. See Art. 5547-37, Tex.Rev.Civ.Stat.Ann.; In re Barnard, 147 U.S.App.D.C. 302, 455 F.2d 1370, 1375 (1971).

We can only speculate as to the adverse effect a ninety day commitment in a mental hospital may have upon an 80 year old woman. Most of us cannot perceive the pain, humiliation and feeling of rejection which an aging person may occasion as a result of such an experience. The institutional detention of a person should be ordered only upon satisfactory proof and after consideration of available alternatives. Article 5547-38(b), 1975, Tex.Rev.Civ.Stat. Ann. Due to advanced age and increasing symptoms of senility a person may become a nuisance to the family members charged with the legal or moral responsibility of such person’s care. Before ordering institutional detention, our courts should exercise special care in determining that basic due process requirements are met.

I would reverse and remand the cause for another hearing.


author: DUNAGAN, Chief Justice.

text:
    Lynn SMITH d/b/a Nacogdoches Marine, Appellant, v. MUCKLEROY ENTERPRISES, Appellee.
    No. 917.
    Court of Civil Appeals of Texas, Tyler.
    April 29, 1976.

      Bill McWhorter, McWhorter & Earley, Nacogdoches, for appellant.
    Kenzy D. Hallmark, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for ap-pellee.
   DUNAGAN, Chief Justice.

This is an appeal from a summary judgment rendered in favor of one of the defendants in a negligence case. Lynn Smith d/b/a Nacogdoches Marine sought recovery from Muckleroy Enterprises and Truman Jones for the destruction by fire of his marine supply shop’s inventory. The trial court severed the cause of action against Truman Jones and granted summary judgment in favor of Muckleroy Enterprises.

Muckleroy Enterprises, a partnership, owned the building in which the fire started. Part of this building was occupied by Nacogdoches Marine under a two year lease; the other part had previously been occupied by a dry cleaning business which had ceased operations. The dry cleaning equipment was to be removed from the building by Truman Jones pursuant to an agreement with Muckleroy Enterprises. The fire started when Jones’s cutting torch ignited some dry cleaning fluid.

The original petition alleged that at the time of the fire Truman Jones was the agent of Muckleroy Enterprises; it further alleged that both Truman Jones and Muck-leroy Enterprises were guilty of negligent conduct which proximately caused the damage to the marine supply business. Muck-leroy Enterprises answered with a general denial and moved for a summary judgment.

The summary judgment proof consisted of the original petition and answer and the depositions of R. G. Muckleroy and Truman Jones. The motion for summary judgment stated that the only basis claimed by the plaintiff’s petition for any liability of Muck-leroy Enterprises was the contention that Truman Jones was the agent of Muckleroy Enterprises. The motion for summary judgment further stated that the depositions showed that no such agency relationship existed. The summary judgment stated that the pleadings and depositions showed an absence of any genuine issue of material fact which could establish the liability of Muckleroy Enterprises.

The function of a summary judgment is the elimination of patently unmeri-torious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). A defendant’s motion for summary judgment is required to meet the plaintiff’s case as pleaded and demonstrate that the plaintiff cannot prevail. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976); Parmlee v. Texas & N. O. R. R. Co., 381 S.W.2d 90, 91 (Tex.Civ.App. —Tyler 1964, writ ref’d n. r. e.). In determining the matter of rendering or affirming a summary judgment in favor of a party, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Farley v. Prudential Insurance Co., 480 S.W.2d 176 (Tex.1972); Harrington v. Young Men’s Christian Association of Houston, 452 S.W.2d 423 (Tex.1970); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Rule 166-A(c), Texas Rules of Civil Procedure. The burden of proof rests upon the movant and all doubts are resolved against it; the opponent is not required to prove anything. McDonald v. Clemens, 464 S.W.2d 450 (Tex.Civ.App.—Tyler 1971, n. w. h.); Tubb v. Carter-Gragg Oil Co., 455 S.W.2d 843, 847 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.); Stover v. Concrete Sawing & Sealing Corp., 440 S.W.2d 422 (Tex.Civ.App.—Fort Worth 1969, n. w. h.); Great American Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). “Summary judgments are not to be granted on default of the opponent, but only on the merit of the summary judgment proof.” Swilley v. Hughes, supra.

The original petition in this case raised fact issues as to the vicarious and primary liability of Muckleroy Enterprises. The motion for summary judgment and the depositions, however, were directed only at the agency relationship alleged to exist between Truman Jones and Muckleroy Enterprises. Only the existence of a fact issue as to vicarious liability was disputed and the existence of a fact issue as to the primary liability of Muckleroy Enterprises was not discussed, much less negated. The issue of negligence is ordinarily one of fact, requiring a full development of all facts as a basis for a proper finding. When the evidence presented in a negligence case shows that the facts have not been sufficiently well developed, then a summary judgment is improper. Loud v. Sears, Roebuck & Co., 262 S.W.2d 548 (Tex.Civ.App.—Dallas 1953, n. w. h.). The record before us shows no full development, if any, of facts regarding negligence on the part of Muckleroy Enterprises. The petition of the plaintiff was originally answered by the appellee with a general denial. The general denial puts the plaintiff on proof of every fact essential to his case and all material facts asserted by the plaintiff, except those which are required to be denied under oath, are put into issue. Shell Chemical Co. v. Lamb, 493 S.W.2d 742 (Tex.1973). It is well settled in this state that questions of negligence and proximate cause are usually issues of fact which cannot be determined on motion for summary judgment. Mabrey Foundry and Machine Co. v. Howard Motor Co., 422 S.W.2d 238 (Tex.Civ.App.—Beaumont 1967, n. w. h.); Sullivan v. Sisters of St. Frances of Texas, 374 S.W.2d 294 (Tex.Civ.App.—San Antonio 1963, n. w. h.); Fuller v. Southwestern Greyhound Lines, Inc., 331 S.W.2d 455 (Tex.Civ.App.—Austin 1960, writ ref’d n. r. e.). Therefore, upon the filing of the general denial, each material contention of negligence alleged by the plaintiff became a fact issue to be determined at a trial on the merits.

Neither the motion for summary judgment nor the summary judgment proof negated the issue of the primary liability of Muckleroy Enterprises. Nevertheless, the summary judgment disposed of the whole case when it found “an absence of any genuine issue of material fact which could establish liability against [Muckleroy Enterprises].” A summary judgment in favor of a defendant upon the whole case is proper only if, as a matter of law, the plaintiff could not succeed upon any of the theories pleaded. Marshall v. Garcia, 514 S.W.2d 513, 518 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Gunnels v. Atcheson, 288 S.W.2d 878, 882 (Tex.Civ.App.—Amarillo 1956, n. w. h.). Since there existed a fact issue upon which the alleged negligence on the part of Muckleroy Enterprises could be based, the summary judgment in favor of Muckleroy Enterprises was improper.

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

      . Although the allegations of this petition were vague and couched in general terms, no special exceptions were filed to point out the obscurity or generality.


author: MOORE, Justice.

text:
    Lois Coreen WILLIAMS, Appellant, v. Eugene Emerson WILLIAMS, Appellee.
    No. 920.
    Court of Civil Appeals of Texas, Tyler.
    April 29, 1976.

      Leslie Thacker, Houston, for appellant.
    J. Christopher Kolstad, McDonald & Cal-hoon, John B. McDonald, Palestine, for ap-pellee.
   MOORE, Justice.

Appellee, Eugene Emerson Williams, instituted this suit against appellant, Lois Co-reen Williams, seeking a divorce and a division of the property. After a trial before the court, sitting without a jury, judgment was rendered dissolving the marriage and dividing the property. Appellant, Lois Co-reen Williams, perfected this appeal.

Appellant brings seven points of error seeking a reversal of that portion of the judgment dividing the property. By her first point she contends that the trial court erred in refusing to order the appellee to file an inventory and appraisement of the various items of community property owned by the parties. We find no merit in this contention and accordingly overrule the point.

The record reveals that prior to trial appellant filed a motion requesting the court to order appellee to file an inventory and appraisement of the community property. In response to the motion, the trial court ordered appellee to file an inventory of the community property. The order did not require appellee to file an appraisement. Appellee complied with the order and filed only an inventory of the property without an appraisement. While appellant argues on this appeal that the court erred in failing to order an appraisal of the property, the record fails to show that appellant excepted to the order or otherwise called the deficiency to the attention of the trial court. As a matter of fact, the record reveals that appellant’s attorney approved the order. It is well settled that points of error not raised in the trial court cannot be considered for the first time on appeal. 3 Tex.Jur.2d App. and Err., Civil Cases, sec. 98, 422 (1974). While the record shows that appellant filed a second motion requesting the court to order a new inventory and appraisement, there is nothing in the record showing that the court made any ruling thereon. In order to raise a question in an appellate court, the general rule is that the record must not only show that the appellant requested relief in the trial court but that the trial court made an adverse ruling thereon. Marek v. Baylor County, 430 S.W.2d 220 (Tex.Civ.App.—Eastland 1968, writ ref’d n. r. e.). A motion not acted on by the trial court furnishes no basis for a point of error. Ladd v. Knowles, 505 S.W.2d 662, 668 (Tex.Civ.App.-Amarillo 1974, no writ); Producers Inv. Corp. v. Spears, 232 S.W.2d 761, 764 (Tex.Civ.App.—Fort Worth 1950, no writ). Appellant’s first point is overruled.

By her second, fourth, fifth and sixth points, appellant seeks a reversal on the ground that the division of the property made by the trial court was unfair and inequitable. Appellant argues that the trial court erred in failing to take into consideration the disparity of income, as well as the earning capacity of the parties, and abused its discretion in failing to award her at least one-half of the community property. She further argues that the division was rendered inequitable because the trial court erred in failing and refusing to award her the $9,000 note as her separate property before dividing the community property. We overrule the points.

In considering these points, which charge that the trial court abused its discretion by ordering an unequal division of the property between the parties, we are mindful of the rule that where there are no findings of fact or conclusions of law, we must consider the evidence and all reasonable inferences and deductions that may be properly drawn therefrom in the light most favorable to the appellee. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Waggener v. Waggener, 460 S.W.2d 251, 254 (Tex.Civ.App.—Dallas 1970, no writ); Roye v. Roye, 404 S.W.2d 92, 96 (Tex.Civ.App.—Tyler 1966, no writ). Also there is a presumption in favor of the trial court’s exercise of its discretion regarding division of property in a divorce action. Waggener v. Waggener, supra; Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App.—Fort Worth 1963, writ dism’d).

The record reveals that at the time of trial Mrs. Williams was 72 years of age and Mr. Williams was 68. The parties had been married for approximately 24 years and had no children. Both parties were receiving social security payments, with Mr. Williams receiving $223 per month and Mrs. Williams receiving $133 per month. Prior to the divorce the parties had a bank account in the amount of $16,000, which they voluntarily divided equally with each receiving $8,000. The division of these funds was approved by the court in the divorce decree. Other than furniture and personal effects, about which there is no dispute, the property consisted of the following: (a) one promissory note of the value of $9,000, payable in monthly installments of $125 each, (b) one promissory note of the value of $1,000, payable in monthly installments of $50 each, (c) four cemetery lots of the value of $400, (d) one 1959 Oldsmobile, the value of which is not shown by the evidence, (e) one 1966 pickup truck, the value of which is not shown by the evidence, (f) a house and a shop building situated on a two-acre tract of land, of the total value of $23,500, (g) carpenter tools, lumber and pipe, which Mr. Williams testified was nothing more than “junk,” accumulated over a lifetime with the value not being established by any competent evidence, and (h) a monthly pension paid to Mr. Williams by the carpenter’s union in the amount of $122 per month, the value of which is not shown by the evidence. The trial court divided the property as follows: appellant, Lois Coreen Williams was awarded (1) the two promissory notes of the total value of $10,000; (2) the sum of $16,000 in cash, $8,000 of which she received in the division made by the parties prior to the divorce and $8,000 of which she was awarded in the divorce decree with appellee being ordered to pay her such amount; (3) the 1959 Oldsmobile automobile; (4) an undivided one-half of the mineral estate under the two-acre homestead tract, and (5) the four cemetery lots. Mr. Williams was awarded (1) the home, together with the shop building situated on the two-acre tract of land; (2) an undivided one-half interest in the mineral estate under the two-acre tract; (3) the hand tools, lumber, pipe and other items situated in the shop building, (4) the 1966 pickup truck, and (5) the carpenter union’s pension in the amount of $122 per month, approximately %th of which was earned by Mr. Williams before his marriage to appellant.

We find no merit in appellant’s contention that the major portion of the $9,000 note was her separate property or that the court erred in refusing to award it to her prior to the division of the community. It will not be necessary to encumber the record with a recitation of the details of this particular transaction. The note was given to the parties in exchange for a house and lot which was owned by them as tenants in common. Appellant’s claim is for reimbursement for separate funds expended by her in improving appellee’s undivided one-half interest in the property. Ordinarily, where the separate funds of one spouse are used to improve property owned by the other, the spouse advancing the funds is entitled to reimbursement. The burden of proving a claim for reimbursement is on the party asserting it. While there is testimony in the record showing that Mrs. Williams expended some undisclosed amount of her separate funds to improve the property, the statement of facts contains no evidence showing the amount thereof. Therefore, appellant must be held to have waived her right to recover reimbursement as a part of her separate estate. In any event, no harm resulted to appellant since the trial court awarded her the note. Rule 434, Texas Rules of Civil Procedure.

We likewise find no merit in appellant’s contention that the division was so grossly disproportionate as to constitute an abuse of discretion. The record fails to show the value of several of the items of property. The total value of the items of property awarded to each party which was established by the evidence shows that Mrs. Williams received property of the value of $26,-400 while Mr. Williams received property of the value of $23,500. Appellant takes the position that since the court awarded Mr. Williams the carpenter union’s pension and the hand tools, as well as a large amount of lumber, pipe and other items situated in the workshop, he was awarded more than his fair share of the community. Upon the record before us appellant’s contention cannot be sustained. There is no evidence whatever showing the value of the pension nor is there any evidence of the value of the hand tools and other items situated in the shop building. With regard to the former, the evidence shows appellee earned ⅜⅛ of the pension prior to his marriage to appellant, and with regard to the latter, the appellee testified it was nothing but junk. Upon viewing the evidence in a light most favorable to the judgment, it must be presumed that the trial court found these items of property to be of little or no value. In the absence of evidence showing the value of each of such items of property, it would be rank speculation to hold that the division made by the trial court was so unjust and unfair as to constitute an abuse of discretion.

While Article 3.63 of the Texas Family Code provides that in a decree of divorce the trial court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party, it is well established that the trial courts are given wide discretion in making a division of the estate of the parties. Equal division is not required. Upon appeal it must be presumed that the trial court exercised its discretion properly and the cause will be reversed only where the division is manifestly unjust. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); In re Marriage of McCurdy, 489 S.W.2d 712, 717 (Tex.Civ.App.-Amarillo 1973, writ dism’d). As we view the record, appellant failed to discharge her burden of showing that the court’s order dividing the property was manifestly unjust and unfair or that there is a flagrant abuse of discretion to such an extent that the order should be set aside. Waggener v. Waggener, supra.

Appellant urges in her third point that the trial court erred in awarding her an attorney’s fee in the amount of $250 rather than the sum of $1,750 established by the evidence. The point is overruled.

There is no statutory law permitting a wife to recover an attorney’s fee in a divorce action. The law is well settled that the allowance of attorney’s fees to the wife in a divorce action, as well as the amount thereof, is a matter left to the sound discretion of the trial judge by virtue of the general equity jurisdiction of the court. Zaruba v. Zaruba, 498 S.W.2d 695, 700 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d); Hearn v. Hearn, 449 S.W.2d 141 (Tex.Civ.App.—Tyler 1969, no writ). Whether an attorney’s fee is to be granted or not is but a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950).

By her final point appellant complains of the failure of the court to file findings of fact and conclusions of law. The record reveals that appellant made her first request for findings of fact and conclusions of law on August 4, 1975. The trial court neglected to file such findings within the 30-day period prescribed by Rule 297, Texas Rules of Civil Procedure. Under the provisions of the foregoing rule appellant had a duty to call the omission to the trial judge within 5 days after expiration of the 30-day period. Appellant failed to call the matter to the trial judge’s attention until long after the 5-day period prescribed in Rule 297 had expired. Having failed to comply with the rule, appellant waived her right to complain. Blair v. Blair, 434 S.W.2d 943, 947 (Tex.Civ.App.—Dallas 1968, no writ); Associates Development Corp. v. Air Control Products, Inc., 392 S.W.2d 542, 544 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.); Rule 297, T.R.C.P.

The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    Bill P. COGDELL, Appellant, v. David Martin COGDELL, Jr., et al., Appellees.
    No. 4890.
    Court of Civil Appeals of Texas, Eastland.
    April 29, 1976.
    Rehearing Denied May 27, 1976.

      Gloria Svanas, Svanas & Svanas, Odessa, for appellant.
    Robert Randolph, Law, Snakard, Brown & Gambill, Fort Worth, Gene L. Dulaney, Lawson Stiff, Snyder, James R. Alexander, Lubbock, Beau Boulter and Thomas Morris, Gibson, Ochsner, Adkins, Harlan & Han-kins, Amarillo, George Christi, Pope, Hard-wicke, Christie & Montgomery, Fort Worth, for appellees.
   McCLOUD, Chief Justice.

Plaintiff, Bill P. Cogdell, in Cause No. 11429, in the 182nd Judicial District Court of Scurry County, sued The Fort Worth National Bank, as trustee, under the will of D. M. Cogdell, deceased; David Martin Cogdell, Jr.; William Munsey Cogdell; Jon-isue Cogdell Bowden Stiff; Charlotte Cog-dell Etgen; and Douglas Campbell Forbes. The cause of action against the bank was transferred to Tarrant County. Plaintiff dismissed as to Etgen and Forbes. In the instant suit, plaintiff sought a declaration that certain transactions were void under Sections 352 and 324 of the Texas Probate Code because the defendants, David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cogdell Bowden Stiff, as Co-Executors of the Estate of D. M. Cogdell, deceased, were guilty of “self-dealing” in leasing or purchasing, directly or indirectly, estate property.

The trial judge, Honorable Wayland G. Holt, dismissed plaintiff’s suit and held that Cause No. 9730 which was pending in the 132nd Judicial District Court of Scurry County, at the time plaintiff filed the instant suit and at the time of the hearing, involved the same transactions, parties, and issues as were alleged in Cause No. 11429. Plaintiff, Bill P. Cogdell, has appealed. We affirm.

D. M. Cogdell died on November 15,1964. His will was admitted to probate on November 30, 1964. David Martin Cogdell, Jr., William Munsey Cogdell, and Jonisue Cogdell Bowden Stiff were appointed Co-Independent Executors and each received certain specific bequests under the will. The testator devised 2/10 of the residuary estate to Fort Worth National Bank as trustee for the Marion P. Cogdell Trust and the Charlotte Cogdell Etgen Trust. Plaintiff, Bill P. Cogdell, is one and the same person as Marion P. Cogdell.

On August 5, 1968, The Fort Worth National Bank as trustee for Bill P. Cogdell and Charlotte Cogdell Etgen filed Cause No. 9730 against the executors, Jonisue Cogdell Bowden Stiff, William Munsey Cogdell, and David Martin Cogdell, Jr., seeking an accounting of the estate and a construction of the will. By amended pleadings, the bank specifically objected to the actions of the executors which “constitute self-dealing in breach of their fiduciary obligations to deal fairly with the beneficial owners of the Estate”. Plaintiff, Bill P. Cogdell, filed a cross action in Cause No. 9730, against David Martin Cogdell, Jr., William Munsey Cogdell and Jonisue Cog-dell Bowden Stiff, individually and as executors of the Estate of D. M. Cogdell complaining of “self-dealing” by the executors and breach of fiduciary duty. Plaintiff on November 29, 1973, filed a cross action against The Fort Worth National Bank in Cause No. 9730, alleging breach of fiduciary duty. On January 14, 1974, The Fort Worth National Bank as trustee filed a “Petition for Instructions” requesting the court to instruct it upon whether it should consummate a “conditional settlement” agreement with David Martin Cogdell, Jr., and William Munsey Cogdell, individually and as majority executors. Bill P. Cogdell filed extensive written objections to the settlement agreement. He alleged specifically that the provisions of Article II of the agreement violated Section 352 of the Probate Code.

On May 18,1974, Honorable J. H. Starley entered judgment approving the settlement. The judgment provided in part:

“It is, therefore, ORDERED, ADJUDGED AND DECREED that:
A. The Fort Worth National Bank, Trustee under the Will of D. M. Cogdell, Deceased, for the benefit of Marion P. Cogdell and for the benefit of Charlotte Cogdell Etgen is instructed to consummate said Settlement Agreement dated December 31, 1973, heretofore conditionally entered into between The Fort Worth National Bank, Individually, and as Trustee under the Will of D. M. Cog-dell, Deceased, and D. M. Cogdell, Jr. and W. M. Cogdell, Individually, and as Majority Executors of the Estate of D. M. Cogdell, and said Settlement Agreement is in all things approved as being for the best interest of the Trusts and their beneficiaries.
B. The following proceedings and issues in this Cause No. 9730 are hereby severed from said Cause No. 9730, and same shall be separately docketed as Cause No. 9730-A on the docket of this Court:
1)Trustee’s petition, all answers of all parties thereto; and all proceedings in connection therewith;
2) Trustee’s objections to the accounting of the Majority Executors, the answer thereto, and all proceedings in connection therewith; and
3) the cross-action of D. M. Cogdell, Jr., and W. M. Cogdell, Individually and as Majority Executors of the Estate of D. M. Cogdell, Deceased, against The Fort Worth National Bank, Trustee and The Fort Worth National Bank in its individual corporate capacity, all answers thereto, and all proceedings in connection therewith.
C.Any cause of action asserted by any beneficiary of the Trusts created under the will of D. M. Cogdell for the benefit of the Marion P. Cogdell Trust and for the benefit of the Charlotte Cog-dell Etgen Trust against D. M. Cogdell, Jr. and W. M. Cogdell Individually and as Majority Executors of the Estate of D. M. Cogdell and against the Estate of D. M. Cogdell be held in suspense until the judgment of the District Court instructing the Trustee to execute the Agreement shall become final.”

Following the entry of the May 18, 1974 judgment, Bill P. Cogdell attempted to appeal Cause No. 9730. In an unpublished opinion (No. 4731, July 3, 1975), we dismissed the appeal because the order appealed from was not a final appealable judgment. Thereafter, plaintiff filed the instant suit.

The pleadings in Cause No. 11429 and Cause No. 9730, show that the two cases involve the same parties and the same controversy.

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

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

In Boyett v. City of College Station, 465 S.W.2d 203 (Tex.Civ.App.—Houston (1st Dist.) 1971, writ ref. n.r.e.), the court noted:

“It is stated at 2 McDonald, Texas Civil Practice (1970) 185, § 7.10:
‘ * * When the (court in which the second suit is filed) abates, as it should, the second suit on a timely filed plea, it is not done so much on the grounds of a lack of jurisdiction as on the grounds of comity, vexatious litigation or (the avoidance of) a multipliciy of suits.’ ”

The rule to be applied when the second suit is filed in the same court is stated in 1 Am.Jur.2d Abatement, Survival, and Revival § 6, as follows:

“Ordinarily, when one action is pending and another is brought between the same parties and for the same cause, it is the second action which abates; where the plaintiff has a complete and effective remedy by either action, the second suit is deemed to be unnecessary and vexatious. The maxim, ‘Qui prior est tempore, potior est jure,’ generally controls in such cases. Thus where two suits based on the same cause of action are filed in the same court, it is generally held that the second suit, in point of filing and service of summons, is subject to abatement, in the absence of statutory provision to the contrary; where the actions are brought in separate courts, the familiar rule is that the court which first acquires jurisdiction would be permitted to retain it, to save expense to litigants and unnecessary and embarrassing conflicts between courts. . ."

1 C.J.S. Abatement and Revival § 21 provides:

“Except where there is a statutory provision to the contrary, the general rule as to a prior action or suit being ground for the abatement of a later action or suit, applies where both actions or suits are brought in the same court.”

Cause No. 11429 involved the same parties and the same controversy as Cause No. 9730. The dismissal was proper.

We have considered all points of error and all are overruled. Judgment of the trial court is affirmed.


author: ELLIS, Chief Justice.

text:
    Howard SIMPSON, Individually and as next friend on behalf of Scooter Lloyd Simpson, a minor, Appellant, v. James C. GLENN, M.D., Appellee.
    No. 8624.
    Court of Civil Appeals of Texas, Amarillo.
    April 30, 1976.
    Rehearing Denied June 1, 1976.

      Robin M. Green, Amarillo, for appellant.
    Stone, Stone & Chambers, John C. Chambers, Amarillo, for appellee.
   ELLIS, Chief Justice.

Appellant Howard Simpson brings this appeal from the judgment of the trial court rendered in favor of appellee James C. Glenn, M.D., that plaintiff-appellant recover nothing from defendant-appellee in this wrongful death suit based upon alleged medical malpractice. Mr. Simpson contends, and we agree, that the trial court erred in excluding in toto a medical doctor’s deposition proffered as medical evidence in the case. Reversed and remanded.

Appellant filed this suit in his individual capacity as the surviving husband of Julia Ann Simpson, now deceased, and as next friend and natural father of Scooter Lloyd Simpson, minor son of Howard and Julia Ann Simpson. Mrs. Simpson died on April 19, 1973, in the intensive care unit of an Amarillo, Texas hospital after entering the hospital on April 15,1973 and undergoing a hysterectomy performed by Doctor Glenn on April 16, 1973.

On the morning following the day of her surgery Mrs. Simpson exhibited signs of confusion and delirium. About 5:45 in the afternoon of that same day Mrs. Simpson experienced a cardiac arrest for which she was given emergency care. However, she died two days later. Although various other acts of negligence were pleaded, Mr. Simpson contends that the basic issue in this lawsuit was whether Doctor Glenn “had properly and adequately maintained the appropriate water and electrolyte balance” in the patient.

During the trial Doctor Glenn, the defendant, and Dr. Carl Thomas Nichols personally testified; the deposition of Dr. Carey Joseph Batson was introduced into evidence. Doctor Batson and Doctor Nichols were the consulting physicians called in by Doctor Glenn on this case. Counsel for the plaintiff Simpson attempted to read into evidence the deposition testimony of Dr. Edward B. Grothaus, a prospective expert medical witness. After objection was made by counsel for Doctor Glenn to the reading into evidence of the deposition testimony, the trial court ruled that all of the testimony of Doctor Grothaus would be excluded from evidence. Counsel for the plaintiff subsequently perfected his Bill of Exceptions and thus preserved the deposition testimony of Doctor Grothaus for consideration in this appeal.

In response to special issues inquiring as to two of eight counts of alleged negligence the jury returned a verdict favorable to Doctor Glenn upon which judgment was rendered by the trial court. The two issues and answers were:

“ISSUE NO. 1
“Do you find from a preponderance of the evidence that Dr. James C. Glenn failed to order the timely reduction of I.V. fluid being injected into the body of Julia Simpson?
* * * ⅜ ‡ jfc
“ANSWER: We do not
⅞: ⅜ ⅜ ⅜ s£ ⅝
“ISSUE NO. 4
“Do you find from a preponderance of the evidence that Dr. James C. Glenn failed to make timely use of a consulting doctor when symptoms appeared disclosing problems which he was not qualified to treat?
⅜ * ⅜: ⅜ * ⅜
“ANSWER: We do not”

From the take-nothing judgment entered in favor of the defendant against the plaintiffs on the basis of the jury’s verdict this appeal has been perfected. In one point of error Mr. Simpson contends that the trial court erred in excluding the testimony of Dr. Edward B. Grothaus.

Generally, competency of an expert witness is a matter to be determined within the sound discretion of the trial court. See Louis v. Parchman, 493 S.W.2d 310 (Tex.Civ.App.-Fort Worth 1973, writ ref’d n. r. e.); Texas and New Orleans Railroad Company v. Pettit, 290 S.W.2d 730 (Tex.Civ.App.— Beaumont 1956, writ ref’d n. r. e.) and cases cited therein. In the case of Pecos & N. T. Ry. Co. v. Coffman, 56 Tex.Civ.App. 472, 121 S.W. 218 (1909, no writ), in which there was conflict in the medical testimony, it was held that a physician in general practice who has studied a particular disease is qualified to testify concerning it, although he had not made such disease a specialty and had never treated a person therefor, and his want of experience went only to the weight of his testimony, citing Lawson on Expert and Opinion Evidence (1st Ed.) pp. 118-129, inclusive; Montgomery v. Commonwealth, 88 Ky. 509, 11 S.W. 475; 1 Wigmore on Evidence §§ 569 and 687. In this case the court significantly stated:

If it be conceded that ordinarily it would have been discretionary with the trial court to exclude the opinion of Dr. Rogers as an expert, we think that under the authorities, and in view of the conflict of testimony upon the issue as to whether or not the plaintiff was suffering from the . . . diseases complained of, it was an abuse of such discretion to exclude said testimony, and its exclusion constituted error for which the judgment of the trial court must be reversed. 121 S.W. at 220.

For further authority to the effect that the witness need not be a specialist in the particular branch of the profession about which testimony is offered, see Hardware Mutual Casualty Company v. Wesbrooks, 511 S.W.2d 406 (Tex.Civ.App.—Amarillo 1974, no writ); Utilities Indemnity Exchange v. Burks, 7 S.W.2d 1112, 1114 (Tex.Civ.App.—San Antonio 1928, writ dism’d); Steinberg v. Indemnity Insurance Co. of North America, 364 F.2d 266 (5th Cir. 1966); 2 C. McCormick & R. Ray, Texas Evidence § 1427, at 270 (2d ed. 1956).

The record discloses that Doctor Glenn is a specialist in obstetrics and gynecology practicing in Amarillo, Texas, whereas Doctor Grothaus is a general surgeon who has practiced basically in two places following the completion of his training: in Visalia, California, for approximately eleven years, and in Sierra Vista, Arizona, for about two years. Doctor Glenn states that the bases for his objection to the admission of Doctor Grothaus’ testimony were: (1) Doctor Gro-thaus was not shown to be conversant with the standards of care of specialists in the field of obstetrics and gynecology, generally; and (2) Doctor Grothaus was not shown to be conversant with the standards of medical care which prevail in Amarillo, Texas, where the surgery, medical treatment and subsequent death of Mrs. Simpson occurred.

It is Mr. Simpson’s position that the subject of the excluded testimony, namely, water and electrolyte balance is a concern of all post-surgical care of patients who have undergone serious operations, and is therefore not a concern limited to obstetrics and gynecology. It is recognized that a hysterectomy is a serious operation. That Doctor Grothaus was not a specialist in obstetrics and gynecology is not controlling upon all the subjects under inquiry in this suit. It is here noted that the consulting doctors whose testimony was admitted were not specialists in obstetrics or gynecology, and their testimony primarily concerned post-operative procedures.

Where a particular subject of inquiry is common to and equally developed in all fields of practice, and the prospective medical expert witness has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those which confronted the practitioner charged with malpractice, the witness is qualified to testify. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1953); Christian v. Jeter, 445 S.W.2d 51 (Tex.Civ. App.-Waco 1969, writ ref’d n. r. e.). In Webb v. Jorns, 488 S.W.2d 407 (Tex.1972), the Texas Supreme Court held that there were certain minimum safe and accepted practices that cannot vary in any locality.

Regarding Doctor Grothaus’ familiarity with the recognized standards of care with respect to post-operative care of patients who had experienced serious operations, he was a medical doctor specializing in general surgery. He graduated from the University of Texas Medical School at Galveston, Texas in 1950, completed his internship in Sacramento, California, and took a general surgical residency at Baylor University College of Medicine in Houston, Texas. Doctor Grothaus took an additional two years residency at the Veterans Administration Hospital in Temple, Texas. Subsequent to his medical training he practiced surgery for about eleven years chiefly in a hospital that drew from a population of 90,000 to 100,000, and for two years in a community serving an area with about 20,-000 persons. Doctor Grothaus is licensed to practice in California, Arizona and Texas. Further, his practice was limited to general surgical care and he had performed operations over the years in “hundreds or thousands of cases.”

The trial court excluded the deposition of Doctor Grothaus in its entirety, apparently on the basis of his qualifications. It is now recognized that “[t]he controlling factor in determining competence is that the medical witness have ‘practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those which confronted the defendant charged with malpractice.’” Christian v. Jeter supra. Further, Doctor Grothaus familiarized himself with the specific case of Julia Simpson by examining the copies of the medical records introduced into evidence in this case as well as the deposition of Doctor Glenn and the deposition of each of the two consulting doctors. Based upon his extensive review of the laboratory procedures, the x-rays, intensive care records, the intake and output sheets and the basic hospital records in evidence in this case, Doctor Grothaus stated that the procedures, tests and medical practices in Amarillo, Texas were familiar to him and were the type of medical practices and procedures that were followed and used in other hospitals in which he had practiced.

It is our opinion that the facts concerning Doctor Grothaus’ qualifications, experience and history of practice are sufficient to qualify him as a competent witness to testify as to post-operative procedures, including intravenous injection and possible over-hydration. Particularly is this important when consideration is given to his testimony which is at variance with that of other witnesses in significant respects. For example, his opinion and conception concerning the term “keep open,” as used in connection with the rate of flow in the administering of intravenous fluids by Doctor Glenn and one of the other testifying doctors, was not in agreement with their testimony in that regard. Further, his testimony was not in agreement with that of other witnesses as to the appropriate time for securing services of a consulting physician. Also, his testimony in various respects as to questions of negligence and proximate cause was more detailed, positive and less equivocal than that of other witnesses.

It is therefore our opinion that since Doctor Grothaus was shown to be sufficiently competent and qualified to testify as to certain post-operative procedures common to the care of patients who had experienced serious operations, and since his testimony was at variance with that of other witnesses in significant respects, it was reversible error to exclude such testimony. Pecos & N. T. Ry. Co. v. Coffman, supra, and authorities cited therein. Further, the exclusion of such testimony is regarded as prejudicial to the complaining party in that the jury was not given the opportunity to pass on the weight and credibility of the additional testimony some of which was at variance with that of the other expert witnesses regarding important procedures. Although the testimony of Doctor Grothaus was corroborative of other testimony in certain areas, because of the variances above mentioned, it should not be regarded as merely cumulative of other testimony. Moreover, any variances or discrepancies in the testimony itself did not relate to its admissibility, but were matters relevant to the weight to be given the testimony for evaluation by the trier of the facts. Hardware Mutual Casualty Company v. Wesbrooks, supra.

We do not pass upon the admissibility of all the specific portions of Doctor Grothaus’ testimony. We have herein determined that the exclusion of such deposition testimony in toto was improper and the competence and admissibility of specific portions of the testimony should be determined within the sound discretion of the court, with the weight and credibility thereof being subject to evaluation by the fact finder in the case. To such extent appellant’s point of error is sustained.

For the reasons above stated the judgment of the trial court is reversed and the cause remanded.