author: AKIN, Justice.

text:
    William OGLE, Appellant, v. ENTERPRISES LIMITED CO., INC., d/b/a Robert R. Thomas Co., Appellee.
    No. 18817.
    Court of Civil Appeals of Texas, Dallas.
    May 13, 1976.

      Linda S. Aland, Strother, Davis & Levy, Dallas, for appellant.
    Wayne A. Johnson, II, Dalton, Moore, Forde, Joiner & Stollenwerck, Dallas, for appellee.
   AKIN, Justice.

This is a suit by William Ogle, plaintiff, to recover certain bonus commissions allegedly due him on an oral contract of employment with appellee-defendant, Enterprises Limited Company. Plaintiff contended in the trial court that the oral contract provided that losses incurred by him during his first year of employment as a salesman for defendant were not to be carried forward into the second year in computing plaintiff’s bonus for that year. The trial court found, however, that the oral agreement provided that losses from the first year were to be carried forward into the second year if plaintiff terminated his employment prior to two years, and, that defendant incurred a loss under the contract formula. Accordingly, the trial court rendered judgment for the defendant and the plaintiff appeals. We affirm.

On appeal, plaintiff advances the following three arguments: (1) The trial court’s finding that, under the oral agreement, the first year losses were to be carried forward into the second year in computing plaintiff’s bonus is against the great weight and preponderance of the evidence; (2) the trial court erred in refusing to make additional findings of fact as requested by plaintiff; and (3) the trial court’s conclusion that plaintiff was not entitled to bonus compensation under the contract was due to an error in computation and, therefore, manifestly wrong and unjust.

1. Weight and Preponderance of Evidence

Since plaintiff attacks the finding of the trial court that first year losses were to be carried forward into the second year in computing plaintiff’s bonus as being against the great weight and preponderance of the evidence, we must review the evidence presented. E. g., In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Plaintiff testified that, at the time he was employed, defendant’s president, Robert Thomas, told him that under no circumstances would a loss be carried from the fourth quarter of any year into a subsequent year. However, Mr. Robert Thomas testified that he explained to plaintiff that a loss would not be carried forward from one year to the next so long as the employee completed a full two years of employment; otherwise, the loss would be carried forward. Since plaintiff chose to terminate his employment at the end of eighteen months, defendant carried the loss from the fourth quarter of plaintiff’s first year forward into the second year for purposes of computing the bonus. The reason for the two-year contingency of employment, ac-' cording to Mr. Thomas, was that it took the company at least two years to recoup the investment made in a new salesman. To rebut defendant’s contention on the terms of the contract, plaintiff presented two former employees of the defendant who, as Thomas admitted, were employed under agreements identical with that of the plaintiff. These witnesses testified that, under their oral contracts, losses were never to be carried forward. The first witness, Ral-ston, commenced his employment with the defendant in October 1966, and continued that employment until June 1971. He was, therefore, employed for approximately five years and, obviously, the two-year contingency would not have applied to him. Ral-ston’s second term of employment was from March 1972 to May 1973. Again, the loss was not carried forward. However, Thomas testified that Ralston’s second term of employment had been treated as though he had never left the company. The second witness, Townes, was employed for only two months commencing September 4,1974, and terminating in November 1974. He was allegedly terminated because of incompetence and untruthfulness. Although he testified that losses were not to be carried forward under his oral contract, he did not work a sufficient period of time to receive a final earnings statement.

We hold that the evidence is sufficient to justify the trial court in concluding that the losses from the fourth quarter of the first year should be carried forward into the second year’s calculation of the bonus due plaintiff. Since, in a nonjury case, the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony, and since there was evidence to support the finding, it will not be overturned. E. g., Johnson v. Lane, 524 S.W.2d 361, 363 (Tex.Civ.App. — Dallas 1975, no writ). Consequently, we conclude that plaintiff’s argument is without merit.

2. Requested Additional Findings

Plaintiff also argues that the trial court erred in refusing to make plaintiff’s requested additional findings of fact: That the method of compensation in plaintiff’s oral employment contract with defendant was the same used by defendant in every employment agreement that it has ever had with its salesmen; that Ralston and Townes were employed under identical contracts to that of plaintiff; that plaintiff’s sixth and final quarterly salesman’s earnings statement showed that plaintiff had year-to-date commissions earned of $26,014.12; and that the total bonus credited unpaid year to date was $4,888.29. These requested findings are, on their face, evidentiary rather than findings of ultimate fact, and, consequently, the trial court could properly refuse them. See Sauer v. Johnson, 520 S.W.2d 438, 442 (Tex.Civ.App. — Austin 1975, writ ref’d n. r. e.).

3. Bonus Calculation

Plaintiff also contends that the trial court erred in finding that the defendant incurred a net loss in the amount of $2,186.95. This argument assumes the correctness of the trial court’s finding that losses from the first year were to be carried over into the second year in determining compensation to be paid for bonuses if the salesman terminates his employment with the company prior to the expiration of two full years. It is undisputed that the loss attributable to plaintiff during the first year was $7,075.24. Plaintiff argues that if this figure is properly calculated as of the date of plaintiff’s termination, plaintiff is, nevertheless, entitled to bonus compensation. This is true, plaintiff contends, because the loss should have been subtracted from the commissions earned in excess of the “breakeven point” rather than subtracted from the total bonus due plaintiff at the end of the second quarter of the second year.

We cannot reverse the judgment on this ground because plaintiff failed to raise Lhis question in the trial court. He did not allege, even in the alternative, that defendant breached the contract as a result of this alleged miscalculation. He offered no evidence on this issue, but, on the contrary, he introduced exhibits showing how defendant had calculated the bonus without attempting to elicit from any witness testimony showing that the calculation was wrong in this respect. Furthermore, he requested of the trial court no finding of fact which would have established that defendant’s calculation was wrong, or establishing how the calculation should have been made if the loss for the first year was carried forward. In so far as this record shows, plaintiff never raised this question until he filed his brief in this court. We are not authorized to consider a theory of recovery that was not presented to the trial court. State v, J. M. Huber Corp., 145 Tex. 517, 199 S.W.2d 501 (1947); Findley v. Decker, 499 S.W.2d 350, 352 (Tex.Civ.App. —Waco 1973, no writ); see also Leonard v. Abbott, 366 S.W.2d 925, 927 (Tex.1963).

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    HOUSTON GENERAL LLOYDS INSURANCE COMPANY, Appellant, v. T. C. STRICKLIN, Appellee.
    No. 18860.
    Court of Civil Appeals of Texas, Dallas.
    May 20, 1976.
    Rehearing Denied June 17, 1976.
    John H. McBryde, McBryde, Bogle & Green, Fort Worth, for appellant.
    Robert H. Mow, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
   AKIN, Justice.

This is a venue case in which plaintiff seeks to maintain venue in Dallas County pursuant to the provisions of Tex.Rev.Civ. Stat.Ann. art. 1995(28) (Vernon 1964). T. C. Stricklin sued Houston General Lloyds Insurance Company for damages resulting from a fire loss to an apartment building upon which defendant had issued a fire and extended coverage policy. At the time of issuance of the policy, plaintiff was the owner of a deed of trust lien secured by the property. On September 24, 1974, the fire occurred, and plaintiff, as mortgagee of the property, repaired the damage. After the fire, plaintiff foreclosed the lien and purchased the property. Then plaintiff made demand upon defendant for payment of benefits under the policy. Defendant rejected the claim because plaintiff was not the policyholder nor was he a beneficiary under the loss payable clause. Plaintiff subsequently filed suit and defendant filed its plea of privilege to be sued in Tarrant County, its principal place of business. Plaintiff controverted the plea, asserting subdivision 28 of the venue statute. After a hearing, the trial court overruled the plea and defendant appealed. We affirm.

Tex.Rev.Civ.Stat.Ann. art. 1995(28) (Vernon 1964) states:

Suits against fire, marine or inland insurance companies may also be commenced in any county in which the insured property was situated. Suits on policies may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company, in the county where the home office of such company is located, or in the county where loss has occurred or where the policyholder or beneficiary instituting such suit resides. [Emphasis added.]

Defendant’s principal contention is that since plaintiff was not the policyholder or a beneficiary under the policy, subdivision 28 does not apply. We cannot agree. When a plaintiff controverts a plea of privilege under the first sentence of subdivision 28, he has a two-point burden: (1) That the company is a fire, marine or inland insurance company, and (2) that the property alleged to be insured was situated in the county where the suit was initiated. Toth v. United States Fire Insurance Co., 517 S.W.2d 918, 920 (Tex.Civ.App.-Waco 1974, no writ); Commercial Standard Insurance Co. v. Caylor, 333 S.W.2d 161, 163 (Tex.Civ.App.-Austin 1960, no writ); McKinney v. Calvert Fire Insurance Co., 257 S.W.2d 452, 453 (Tex.Civ.App.-Eastland 1953, no writ); and Continental County Mutual Insurance Co. v. Maddox, 232 S.W.2d 894, 896 (Tex.Civ.App.-Beaumont 1950, no writ). It was alleged and established at the hearing that defendant is a Lloyds insurance company doing business in Texas that issues policies of fire insurance and that the property in question was situated in Dallas County and was damaged by fire.

In support of its contention that plaintiff must be a policyholder or beneficiary, defendant cites National Life Company v. Rice, 140 Tex. 315, 167 S.W.2d 1021 (1943); Jones v. Citizens Casualty Co., 366 S.W.2d 265 (Tex.Civ.App.-Fort Worth 1963, no writ); and Southern Farm Bureau Casualty Insurance Co. v. Powell, 414 S.W.2d 770 (Tex.Civ.App.-Corpus Christi 1967, no writ). None of these cases is in point because each addresses the second sentence of subdivision 28 which pertains to life, health and accident insurance companies rather than fire, marine or inland insurance companies. These cases all stand for the proposition that, under the second sentence of subdivision 28, plaintiff must prove that he is a policyholder in order to maintain venue under that part of subdivision 28. No such requirement, however, is necessary in order to maintain venue under the first sentence of subdivision 28.

Affirmed.


text:
    Colon L. DOUGLAS, Appellant, v. FIRST STATE BANK OF ATHENS, Texas, Appellee.
    No. 18855.
    Court of Civil Appeals of Texas. Dallas.
    May 20, 1976.
    Rehearing Denied June 17, 1976.

      L. F. Sanders, F. Dennis White, Canton, for appellant.
    B. J. Wynne, W. Bruce Monning, Wills Point, for appellee.
   AKIN, Justice.

Plaintiff Colon L. Douglas appeals from a summary judgment rendered against him in favor of the defendant First State Bank of Athens, Texas. The principal question presented is whether, as against a motion for summary judgment based on a plea of limitation and on allegations in plaintiff’s petition that the wrong occurred more than four years before the suit was filed, plaintiff has the burden to present summary-judgment evidence raising a fact issue on some ground to avoid the bar of limitations.

On March 4, 1967, plaintiff deeded land located in Van Zandt County to Oran E. Neill. On March 11, 1967, Neill used this land as collateral to secure a loan from the bank. On May 16, 1972, plaintiff filed suit against Neill, alleging that Neill had obtained the deed by fraud, sought cancellation of the deed, and alternatively pleaded for damages. On March 13, 1974, plaintiff, for the first time, sued the bank alleging that it had ratified Neill’s alleged fraud and, therefore, sought identical remedies against the bank. The bank filed its motion for summary judgment asserting the affirmative defense of limitations based on the facts alleged in the petition. Plaintiff opposed the motion asserting that his pleading raised genuine issues of fact with regard to the fraud and that the bank had produced no evidence supporting its motion. The trial court overruled these contentions, granted the bank a summary judgment, and severed the claim against the bank from the claim against Neill. Plaintiff appeals. We affirm.

When a defendant moves for a summary judgment on the theory that plaintiff’s suit is without merit, he has the burden of establishing as a matter of law that there are no genuine issues of fact as to any essential element in plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The rule is different, however, where a defendant asserts an affirmative defense to the plaintiff’s action and presents summary-judgment evidence sufficient to establish the affirmative defense as a matter of law. In such a case, plaintiff must, if he wishes to avoid the summary judgment, adduce evidence raising a fact issue concerning the affirmative defense established. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex.1974); “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.1972). Here, the basis of plaintiff’s suit against Neill was an allegation of fraud allegedly perpetrated on plaintiff by Neill more than five years before the filing of suit and more than seven years before the bank was named as a party to this litigation. The allegations of the petition are judicial admissions binding on plaintiff and thus constitute summary-judgment evidence against him. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942); Canales v. Bank of California, 316 S.W.2d 314, 318 (Tex.Civ.App.— Eastland 1958, writ ref’d n.r.e.). These allegations establish the limitation defense asserted by the bank as a matter of law since they establish that the fraud took place more than four years before the bank was sued. Consequently, plaintiff had the burden of coming forth with summary-judgment evidence to show that there was an issue of fact with regard to the limitations plea rendering it inapplicable. Nichols v. Smith, Id. at 521.

Plaintiff argues that his pleadings raise a fact question on the issue of fraud and the bank’s ratification of fraud and, consequently, that nothing further was required to avoid the summary judgment. We cannot agree. Although the allegations of the petition are judicial admissions binding on plaintiff, they are not summary-judgment evidence in his favor. The petition establishes the relevant dates for purposes of the bank’s motion; but, it does not supply summary-judgment evidence of any ground on which the plea of limitation may be avoided. In order for plaintiff to avoid summary judgment in favor of defendant on limitation, plaintiff was required to show by summary-judgment proof that the bank’s plea was not applicable. This plaintiff failed to do. Since plaintiff had the burden to come forward with summary judgment proof and failed so to do, the trial court correctly rendered summary judgment for the bank. In view of this holding, plaintiff’s other points are immaterial.

Accordingly, the order of the trial court is affirmed.


text:
    W. S. CASEY, Appellant, v. EMPLOYERS NATIONAL INSURANCE CO., Appellee.
    No. 18821.
    Court of Civil Appeals of Texas, Dallas.
    May 20, 1976.
    Rehearing Denied June 17, 1976.

      Giles E. Miller, Carlton, Street, Johnson & Miller, Dallas, for appellant.
    C. Vernon Hartline, Jr., Gardere, Porter & DeHay, Dallas, for appellee. •
   AKIN, Justice.

This is a suit on an insurance contract to recover reimbursement for a casualty loss. W. S. Casey, d/b/a Ace Plumbing Company, sued Employers National Insurance Company, its construction liability carrier, for reimbursement of $7,412.41 paid by plaintiff to a general contractor as a result of a broken water pipe that occurred during construction of a building leased by Cress Container Corporation. The defendant contended that it was not liable because of a “completed operations hazards” exclusion in the policy. On the other hand, plaintiff contended that the loss was within the coverage because the building contract was only 75% completed and, therefore, the completed operations exclusion was inapplicable. The trial court rendered judgment for the defendant and plaintiff appeals. We affirm.

The policy insured plaintiff against casualty losses occurring during construction. By a specific endorsement, “Completed Operations Hazards” were excluded. This endorsement stated: “[I]t is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability does not apply to bodily injury or property damage included within the Completed Operations Hazards or the Products Hazards.” [Emphasis added.] The policy defines Completed Operations Hazards as including

. bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. . . . Operations shall be deemed completed at the earliest of the following times:
(3) when the portion of the work out of which injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. [Emphasis added.]

Plaintiff raises two points of error relating to the trial court’s interpretation of this exclusionary clause. In the first, he claims that “the court erred in ruling that the defendant correctly interpreted the exclusionary clause to provide that any use at all puts the installation to its ultimate and completed use.” In his second point he contends that “the court erred in ruling that plaintiff incorrectly interpreted the clause not to exclude coverage until the work had been completed.” He does not contend, however, that the language of the policy is uncertain or ambiguous. Consequently, in the absence of ambiguity or uncertainty, the language of the policy will be given its plain meaning. E. g., Republic National Life Insurance Co. v. Spillars, 368 S.W.2d 92, 94 (Tex.1963). Thus, the sole question is whether the language of the policy covers the loss under the facts herein. We must, therefore, review the facts to ascertain whether the damage falls within the ambit of the exclusion.

In May 1974, Cress Container Corporation began occupation of the area in which the water pipe was located although the entire building project was only 75% complete. They accepted that area in June 1974. In September 1974, the water pipe broke, resulting in plaintiff’s damage. Since the policy specifically excluded “Completed Operations Hazards” and, since the damaged portion of the building had been put to its intended use by the owner, the damage here is not included within the policy coverage. Cf. Pan American Insurance Co. v. Cooper Butane Co., 157 Tex. 102, 300 S.W.2d 651, 652 (1957).

Plaintiff argues, however, that, even though the damage occurred in a completed part of the building, the exclusionary clause was inapplicable because the entire building was not complete. We cannot agree. This construction of the language of the policy is contrary to the explicit definition of “Completed Operations Hazards.” Under the language in this definition, when that portion of the work was complete, and when the lessee occupied and used the plumbing, the liability coverage under the policy ceased. If plaintiff desired this excluded coverage, it could have obtained it by payment of an additional premium. This it chose not to do.

Affirmed.


author: BARROW, Chief Justice.

text:
    ARMSTRONG & McCALL CO., OF SANTONIO INC., Appellants, v. AMCO WAREHOUSE, INC., Appellee.
    No. 15516.
    Court of Civil Appeals of Texas, San Antonio.
    May 26, 1976.
    Rehearing Denied June 30, 1976.

      John Michael Doyle, Frank D. Johnson, Doyle & Johnson, San Antonio, for appellants.
    Charlie D. Dye, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   BARROW, Chief Justice.

Both parties complain of the judgment entered after a jury trial in a consolidated action. Armstrong & McCall Co. of San Antonio, hereinafter referred to as Armstrong, brought suit to recover damages from Amco Warehouse, Inc., hereinafter referred to as AMCO, for breach of a contract whereby AMCO agreed to furnish supplies to Armstrong for resale to barber and beauty shops in the San Antonio area. AMCO sought to recover from Armstrong and three guarantors, Hugh Stockton, Hal Stockton, and Ree Stockton, on a sworn account for goods delivered prior to termination of the contract.

The contract was entered into, effective January 1, 1969, for a period of five years with a provision for automatic renewals for successive one-year terms unless terminated at the end of the original five-year term or at the end of a renewal term(s) by written notice to the other party at least six months in advance of the then existing term. On July 9, 1974, AMCO wrote Armstrong that “based on the continuing delinquency of your credit balance, it will be impossible to continue to service your account.” AMCO refused to fill any subsequent orders for Armstrong, and the latter was forced to obtain other lines of beauty supplies for distribution. No complaint is made of the jury finding that the contract was thereby breached by AMCO.

The jury found that the sum of $20,000.00 would fairly and reasonably compensate Armstrong for damages sustained by it as a result of AMCO’s failure to supply beauty supplies from July 9, 1974 to December 31, 1974. The jury also found that Armstrong is indebted to AMCO on its account in the sum of $20,179.23. Judgment was entered on the jury verdict whereby AMCO recovered judgment against Armstrong and the three guarantors for the sum of $179.23.

Armstrong has timely perfected its appeal and urges five points of error. It complains by three points that there is no evidence to support a judgment against it on the open account; therefore, the trial court erred in not granting Armstrong’s Motion for an Instructed Verdict, Motion to Disregard the Jury’s Answer to Special Issue No. 5 and Motion for Judgment Non Obstante Veredicto. Armstrong complains by its fourth point that the court erred in overruling its objection to Special Issue No. 4 in that the damage period should have been July 9, 1974 to December 31, 1975. Armstrong’s final point complains of the judgment against the three guarantors and urges that a fact issue was raised as to whether the guaranty was a continuing one or was limited to a specific note which was paid.

AMCO complains of the judgment by two cross-points wherein it urges that there is no evidence to support the jury’s finding of damages to Armstrong as a result of the breach of the contract.

In considering the no evidence points, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974).

All the common stock of Armstrong has been owned since 1969 by Hugh Stockton and his two sons, Hal and Ree Stockton. The books of this corporation were kept by Deraid Bauhs, who also kept the books for AMCO. Bauhs testified that the records of both companies show a balance owing to AMCO by Armstrong on its open account of $20,179.23. His testimony was based upon a computer print-out of AMCO’s accounts receivable which was prepared under his supervision. In addition to this evidence, Mr. Morris, the general manager of AMCO, identified an exhibit containing a recap of the accounts receivable of Armstrong with the original copy of each invoice attached to said recap. This evidence is sufficient to support the jury finding that Armstrong was indebted to AMCO for the sum of $20,179.23 on its open account. Armstrong’s first three points are without merit and are overruled.

Reversible error is not shown by Armstrong’s complaint that its damages were erroneously limited to the period of July 9, 1974, to December 31, 1974. There was no evidence introduced which would support a recovery for any additional period. Furthermore, Armstrong waived any error by its failure to request a proper issue and to complain by proper assignment in its motion for new trial of the court’s failure to submit this element of Armstrong’s case. Rule 279; Rule 324, Tex.R.Civ.P. Here, Armstrong, by a general objection, urged that the term should run from July 9, 1974 to December 31,1975; however, the motion for new trial complains only of the trial court’s failure to find that the contract was from July 9, 1974, to June 30, 1975. Armstrong’s fourth point is overruled.

Armstrong’s final point seeks to complain of the court’s failure to submit an issue construing the guaranty signed by the three guarantors. No appeal was perfected by the three guarantors from the judgment against them on the guaranty. Armstrong is not affected by this part of the judgment and cannot now be heard to complain of same. Appellate Procedure in Texas, Sec. 18.13. In any event, no objection was made by Armstrong to the court’s failure to submit an issue regarding the guaranty. Armstrong thus waived any error in the court’s failure to submit such an issue. Rule 279, supra.

A more difficult question is presented by AMCO’s cross-points wherein it urges that there is no evidence to support the jury’s finding that Armstrong was damaged by AMCO’s breach of the contract. Armstrong was the distributor in the San Antonio area for lines of beauty supplies distributed by AMCO through several franchised distributors. There was testimony that Armstrong and its predecessors had handled these lines for over 14 years. When AMCO breached the contract on July 9, 1974, it became necessary for Armstrong to secure supplies from other sources. This took time and resulted in a loss of gross sales by Armstrong.

The amount of Armstrong’s damage is based upon the testimony of Mr. Bauhs and an exhibit prepared by him. This exhibit shows the total of Armstrong’s sales for each month from January, 1970, through December, 1974, with the monthly average for each year. Bauhs testified that his analysis of the gross sales showed a drop of about forty per cent after June of 1974. He further testified that since Armstrong’s expenses were fixed, the mark-up of about 42 per cent on these gross sales would have represented “pure profit” to Armstrong. He subsequently modified this testimony upon recall by AMCO to the extent that he did not know the amount of Armstrong’s expenses on its gross sales.

This evidence leaves much to be desired insofar as showing the amount of Armstrong’s damage. Nevertheless, there is evidence that Armstrong’s gross sales dropped because of the breach of the contract and that this reduced the profits of Armstrong. Therefore, AMCO’s no evidence points are without merit. See Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (Tex.1938).

The judgment of the trial court is affirmed.

      . “SPECIAL ISSUE NO. 4
      What sum of money, if any, if paid now in cash would fairly and reasonably compensate the Plaintiff for the damages, if any, sustained by Plaintiff as a direct and proximate result of Defendant’s failure to continue supplying beauty supplies to Plaintiff under the terms of the contract of January, 1969, from and after July the 9th, 1974, to December 31st, 1974?”


author: McDONALD, Chief Justice. HALL, Justice JAMES, Justice

text:
    W. C. WYLIE et ux., Appellants, v. Bette REED, trustee, a co-partnership, Appellee.
    No. 5558.
    Court of Civil Appeals of Texas, Waco.
    May 27, 1976.
    Rehearings Denied June 24, 1976.

      Life & Bolding, Athens, for appellants.
    W. A. Keils, Jr., Teague, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Defendants Wylie, from summary judgment that Plaintiff Reed is owner of all coal and lignite that may be mined and removed by open pit or strip mining methods from a 223.385 tract of land in Freestone County. The judgment further decrees the Wylies own no interest in the coal and lignite on such land by virtue of a certain mineral reservation set out in Warranty Deed from Wylie and wife to James F. Baker dated September 30, 1950.

Plaintiff Reed sued defendants Wylie and wife, alleging plaintiff is owner of all the coal and lignite under or produced from the described land by open pit or strip mining methods; that defendants Wylie on September 30,1950 conveyed the land to James F. Baker, making the following mineral reservation: “* * * there is hereby excepted and reserved to the grantors herein a ¼ undivided interest in and to all oil, gas and other minerals on and under the land and premises herein described and conveyed * * * that such reservation cast a cloud on plaintiff’s title; and prayed plaintiff have judgment for title and possession for all coal and lignite that may be mined and removed from the lands by pit or strip mining methods.

Defendants answered by plea of not guilty.

Plaintiff thereafter moved for summary judgment asserting there were no questions of material fact; that plaintiff owns all coal and lignite from the property if mined and removed by open pit or strip mining methods; that the Supreme Court in Acker v. Guinn, Tex., 464 S.W.2d 348, held that a mineral reservation as here was not effective to reserve minerals that would be mined by open pit or strip mining methods; that plaintiff thus owns all coal and lignite mined by open pit or strip mining methods from the property.

Plaintiffs attached: 1) the deed from defendants to Baker; the mesne conveyances from Baker into plaintiff (all referring to the reservation in the Wylie to Baker deed), and 2) the affidavit of J. A. Hill, land man for the mining company which states the coal and lignite removed from the premises will be by open pit or strip mining methods; which will deplete or substantially impair the use of the surface estate for agricultural or grazing purposes; and in his opinion the coal and lignite can be recovered only by open pit or strip mining methods.

Defendants replied to plaintiff’s motion for summary judgment asserting the reservation in Acker v. Guinn was substantially different and distinguishable from that contained in the Wylie-Baker deed; that the Wylie-Baker reservation “was broad enough in its scope and sufficient as a matter of law to include, and did include, coal and lignite, as well as other minerals”, and alternatively if the reservation did not include coal and lignite as a matter of law, then it is ambiguous and subject to explanation by the parties as to what was intended.

Defendants attached affidavits of themselves, James F. Baker, Mrs. Baker, and Bowlen Bond.

The Wylies’ affidavits state that on September 30,1950, they sold the land to James F. Baker; that they agreed with Baker that they would reserve “⅛ interest in the coal and lignite, along with the oil, gas and other minerals”; that the deed was drawn by Mr. Bowlen Bond, attorney in Teague, Texas; that they told Mr. Bond what the agreement was, and Mr. Bond drew the deed with the following mineral reservation:

“In addition * * * there is hereby accepted and reserved to the Grantors herein a Vi undivided interest in and to all oil, gas and other minerals on and under the land and premises herein described and conveyed; and it is hereby expressly agreed and understood that Grantors herein, their heirs and assigns shall have, and they hereby have the right of ingress and egress for the sole and only purpose of mining and operating for oil, gas and all other minerals, on and under said land, and to produce, mine, save and take care of said products, and to take all usual, necessary and convenient means for working, preparing and removing said minerals from and under and away from said land and premises;”

that Mr. Bond advised the parties he was sure the reservation included the coal and lignite.

The affidavits of James F. Baker, Mrs. Baker, and Honorable Bowlen Bond are almost identical to the Wylies’ affidavits.

The trial court granted plaintiff’s motion for summary judgment, decreeing plaintiff owner of all the coal and lignite and all royalties due therefrom which is or shall be mined or removed from the described tract by open pit or strip mining methods; and further decreed defendants acquired no interest in the coal and lignite that may be mined or removed from the tract, by virtue of the mineral reservation in the Wylie-Baker deed.

Defendants appeal on 8 points contending among other matters;

The Court erred in considering the affidavit of J. A. Hill as establishing a material fact in this cause, towit: That coal and lignite in the area of the lands made the basis of this lawsuit can be recovered only by open pit or strip mining methods, for the reason that opinion testimony cannot establish any material fact as a matter of law in a summary judgment case.

Our Supreme Court in Acker v. Guinn (Tex.1971) 464 S.W.2d 348, held that a mineral deed conveying “an undivided ½ interest in and to all of the oil, gas and other minerals” under a certain tract of land, conveyed no interest in the iron ore. The court held that while the iron ore is a mineral, since it had to be mined by open pit or strip mining methods which would destroy or substantially impair the surface, it was not in the contemplation of the parties to be conveyed. The court further held:

“A grant or reservation of minerals by the fee owner effects a horizontal severance and the creation of two separate and distinct estates: an estate in the surface and an estate in the minerals * * * . The parties to a mineral lease or deed usually think of the mineral estate as including valuable substances that are removed from the ground by means of wells or mine shafts. This estate is dominant, of course, and its owner is entitled to make reasonable use of the surface for the production of his minerals. It is not ordinarily contemplated, however, that the utility of the surface for agricultural or grazing purposes will be destroyed or substantially impaired. Unless the contrary intention is affirmatively and fairly expressed, therefore, a grant or reservation of ‘minerals’ or ‘mineral rights’ should not be construed to include a substance that must be removed by methods that will, in effect consume or deplete the surface estate” * * *.

Gibbs v. General Motors, Tex., 450 S.W.2d 827 holds that summary judgment should be granted, and if granted should be affirmed, only if summary judgment proof establishes a right thereto as a matter of law. ■

And opinion testimony cannot establish any material fact as a matter of law. Hood v. Texas Ind. Ins. Co., 146 Tex. 522, 209 S.W.2d 345; Gibbs v. General Motors Corp., Tex., 450 S.W.2d 827; Lancaster v. Wynnewood State Bank, Tex.Civ.App., (Waco) NWH, 470 S.W.2d 78.

Hill’s affidavit in full follows:

“My name is J. A. Hill. I am senior land man for Texas Utilities Services, Inc. of Dallas, Texas. As part of my duties, in such position which I have held for the past 7 years, I have been in charge of the land acquisition and title work in an area of Freestone County, Texas, wherein Industrial Generating Company has been and is now producing lignite from the lands and premises by open pit or strip mining methods and none other.
“Affiant further states that he is familiar with and knows the locale of the lands and premises involved in this law suit; that coal and lignite mined and removed from said premises will be by open pit or strip mining methods.
“Affiant further states that by mining and removing coal or lignite by open pit or strip mining methods from said lands and premises, it will deplete or substantially impair the use of the surface estate for agricultural or grazing purposes.
“Affiant in his opinion further states that coal and lignite in the area of the lands made the basis of this law suit can be recovered only by open pit or strip mining methods.”

Acker v. Guinn, supra holds plaintiff had the burden of proving that the coal and lignite in the case at bar must be removed by methods that would consume or deplete the surface.

The Hill affidavit is the only evidence that the coal and lignite can be recovered only by strip mining methods, and such is an opinion.

Defendants’ contention supra is sustained.

REVERSED and REMANDED.

HALL, Justice

(concurring).

I concur in the reversal and remand. However, I wish to make it clear that it is my opinion that the reservation in question does not, in the words of Acker v. Guinn, “affirmatively and fairly” express on its face an intention by the parties to it “to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate.”

The summary judgment must be reversed and the case remanded for another trial because (1) the plaintiff pleaded for and was awarded in the judgment title to all lignite that may be mined by open-pit methods from the tract in question when, under the holding in Acker v. Guinn, she received by the grant under review only the lignite that must be removed by such methods; and (2) the summary judgment proof does not establish as a matter of law that the lignite in controversy must be mined by open-pit methods.

JAMES, Justice

(dissenting).

I respectfully dissent. I would reform and affirm the trial court’s summary judgment.

I agree with the majority in holding that the reservation in question does not, in the words of Acker v. Guinn, affirmatively and fairly express on its face an intention by the parties to include a substance that must be removed by methods that will, in effect, consume or deplete the surface estate.

In the case at bar, Plaintiff-Appellee Bette Reed, Trustee, has sued for a declaratory judgment, asking the court to tell her what rights Wylie reserved by the 1950 deed reservation, insofar as coal and lignite are concerned. The determination of this matter is strictly a law question, and is governed by Acker v. Guinn.

However, the trial court’s judgment is in error, in that it held that Plaintiff-Appellee Reed was “the owner of all the coal and lignite that may be mined by open pit or strip-mining methods.” What the trial court’s judgment should have held was that Plaintiff-Appellee Reed was the owner of all the coal and lignite that must be mined by open pit or strip-mining methods, which holding would bring the judgment into harmony with Acker v. Guinn and Williford v. Spies, (Waco, Tex.Civ.App., 1975) 530 S.W.2d 127, no writ.

I would reform the judgment so that it would hold that Plaintiff-Appellee Reed is the owner of all of the coal and lignite that must be mined and removed by open pit or strip-mining, and as reformed, I would affirm same. The summary judgment proof shows that there is lignite in the land in controversy, and that is all the summary judgment proof needed to adjudicate this controversy, other than the conveyance instruments before us. The J. A. Hill affidavit may be disregarded.

      . Emphasis added.

      . Emphasis added.

      . Emphasis added.


author: GUITTARD, Justice.

text:
    REGAL PROPERTIES, Appellant, v. Gilbert GREENBERG, Appellee.
    No. 18863.
    Court of Civil Appeals of Texas, Dallas.
    May 27, 1976.
    Rehearing Denied June 24, 1976.

      Lawrence Fischman, Weil, Craig & Fisch-man, Dallas, for appellant.
    Michael Greenberg, Irving, for appellee.
   GUITTARD, Justice.

This case turns on whether the trial court should have rendered judgment for the plaintiff on a ground of recovery established by evidence at the trial but not supported by pleading. We hold that recovery was properly denied.

The action arose out of the lease of a building from Regal Properties to Murfy’s Self Service Shoes, Inc. Gilbert Greenberg, president of Murfy’s, signed the lease on behalf of the corporation. The lease grants the lessor a lien covering all the lessee’s personal property on the premises in the event of default in payment of rent.

Regal sued both Murfy’s and Greenberg, alleging that Murfy’s vacated the premises before the end of the term and defaulted in the payment of rent and that Greenberg “converted to his own use and benefit” certain merchandise and equipment subject to the lien. Recovery was sought against Murfy’s for unpaid rent and other sums alleged to be due under the lease and for foreclosure of the lien, and against Green-berg individually for the value of the property removed from the premises up to the amount of any deficiency remaining.

Evidence at the trial showed that Green-berg caused the property to be removed from the premises and stored in other premises controlled by Murfy’s. There was no evidence that Greenberg was acting individually rather than as a corporate officer or that he obtained any individual benefit from any of the property subject to the lien.

The court submitted to the jury at plaintiff Regal’s request an issue inquiring whether Greenberg converted “to his own use and benefit” various items of property on the leased premises. The jury answered “No.” No issue was submitted inquiring whether the corporation converted the property or whether Greenberg, acting on behalf of the corporation, converted the property for the use and benefit of the corporation.

Plaintiff moved for judgment against Murfy’s for the amount of the rent and other charges and also for judgment against Greenberg notwithstanding the jury’s answer to the conversion issue. The motion states that this answer was immaterial and should be disregarded because the evidence established as a matter of law that Greenberg removed the property from the premises, and although it also showed that he was acting in his capacity as president of Murfy’s, this fact did not relieve him of liability for conversion, but rather established his individual liability as a matter of law. The trial court rendered judgment against Murfy’s, but denied recovery against Greenberg, and plaintiff appeals. We affirm.

We need not decide whether the evidence establishes as a matter of law that Green-berg’s acts on behalf of the corporation constituted a conversion, or whether as a corporate officer he participated in a conversion by the corporation. The only wrong pleaded against Greenberg was conversion of the property to his own use and benefit. That issue was submitted to the jury at plaintiff’s request and the jury’s finding was adverse to plaintiff. No issue was tried by implied consent.

After a plaintiff has suffered an adverse verdict on the only cause of action stated in his pleading, to permit him to recover on the theory that a different cause of action has been established as a matter of law would go against elemental considerations of fairness. The office of pleading is to give fair notice of the claim so that the opposing party may have a reasonable opportunity to defend against it. Tex.R. Civ.P. 47; Christy v. Hamilton, 384 S.W.2d 795, 796 (Tex.Civ.App. — Amarillo 1964, no writ). Consequently, a litigant is not entitled to plead one cause of action and then recover on a cause of action not pleaded. Cearley v. Cearley, 331 S.W.2d 510, 512 (Tex.Civ.App. — Dallas 1960, no writ). We need not speculate on what evidence, if any, Greenberg would have presented if plaintiff had alleged that the conversion was committed by the corporation and that Green-berg was individually liable because he participated in the tort. He had no occasion to present that evidence because plaintiff never made that claim until after the verdict.

Affirmed.


text:
    Mirlah Coys ADWAN, Appellant, v. Kenneth O. ADWAN, Appellee.
    No. 18857.
    Court of Civil Appeals of Texas, Dallas.
    May 27, 1976.
    Rehearing Denied June 24, 1976.

      Jack Hill, Hill & Shettle, Dallas, for appellant.
    R. L. McSpedden, Collie, McSpedden & Roberts, Dallas, for appellee.
   GUITTARD, Justice.

Mirlah Adwan sued her former husband, Kenneth Adwan, in a district court of Dallas County to enforce a property settlement agreement made between the parties at the time of their divorce. The district court denied relief, and plaintiff appeals. She contends that the court erred in striking her claim for child support payments specified in the agreement and in failing to render judgment in her favor for one-half of certain funds which, she says, were not divided by the agreement or by the divorce decree. She alleges that the funds not divided include the proceeds of certain notes and a refund of federal income taxes. We hold that the trial court should have entertained her claim for child support payments and should have awarded her judgment for her part of the note proceeds, but properly denied her claim for the alleged tax refund.

1. Child Support

The petition alleges that by the terms of the written settlement agreement, defendant agreed as follows:

That he will pay child support for the maintenance, education and support of the minor children of the parties hereto, until they attain the age of eighteen (18) years, as follows:
(a) The sum of one hundred fifty dollars ($150.00) per month for each child payable on the 1st day of March, 1972, and a like sum on the first day of each succeeding month thereafter, to the Child Support Division of the Juvenile Court of Dallas County, Texas, which sum so paid may be withdrawn by Respondent and used by her for the maintenance, education and support of such minor children.

The petition further alleges that the same provision for child support was reiterated in an agreed divorce decree but that defendant had subsequently discontinued the child support payments, to plaintiff’s damage in the amount of $14,400.

Defendant excepted to these allegations on the ground that they were not a proper subject of relief in this action in that the domestic relations court, in an action subsequent to the divorce, had entered an order appointing defendant managing conservator of all the minor children, and thus luid continuing jurisdiction of all matters affecting the parent-child relationship. The trial court sustained this exception and struck the allegations relating to child support.

Plaintiff contends that the trial court erred in holding that the domestic relations court had exclusive jurisdiction to hear matters relating to child support obligations under a property settlement agreement. She points out that she is not seeking to enforce the order of the domestic relations court by a contempt proceeding, but rather seeks to recover money damages for breach of defendant’s contractual obligations in the settlement agreement. She argues that the suit properly invokes the general civil jurisdiction of the district court. In support of this argument, she cites Lee v. Lee, 509 S.W.2d 922, 926 (Tex.Civ.App., Beaumont 1974, writ ref'd n. r. e.), which holds that the district court erred in failing to render judgment for the full amount of support payments provided by contract even though the domestic relations court had reduced the amount of payments, in so far as they were enforceable by contempt proceedings, because one of the children was no longer in the mother’s custody.

We are of the opinion that the same rule applies here unless it has been changed by Tex. Family Code Ann. § 11.05(a) (Vernon Supp.1975). This section provides in part:

[Wjhen a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this code.

Defendant contends that the trial court properly sustained his special exception because under this section of the Code, the domestic relations court had acquired jurisdiction of the children in a subsequent suit to change custody and retained continuing jurisdiction to the exclusion of the district court with respect to any “suit affecting the parent-child relationship.” The question is whether the present action in the district court is a “suit affecting the parent-child relationship” within § 11.05. We conclude that it is not such a suit. The concept of a “suit affecting the parent-child relationship” is an innovation introduced by the Code. Smith, Title 2. Parent and Child, 5 Tex.Tech.L.Rev. 389, 391 (1974). It is defined in § 11.01(5) of the Code as follows:

“Suit affecting the parent-child relationship” means a suit brought under this subtitle in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought. [Emphasis added.]

In order to determine whether the present action is a “suit brought under this subtitle,” we must examine generally the provisions of Subtitle A of Title 2 of the Family Code, which includes §§ 11.01 to 17.09. Sections 11.02 to 11.19 govern proceedings in such a suit. Section 11.08 prescribes the contents of the petition, including the “statutory grounds” on which the court is requested to act. Evidently, therefore, a “suit affecting the parent-child relationship” may be brought only on statutory grounds. Among the statutes governing child support are §§ 14.05 and 14.06. Section 14.05 provides for court orders for periodic support payments, and § 14.06 permits written agreements for support, but further provides:

(d) Terms of the agreement set forth in the decree may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as contract terms unless the agreement so provides.

As we interpret this subsection in the light of the other provisions of Subtitle A, a suit to enforce the terms of a support agreement set forth in the decree by contempt proceedings or other remedies available for enforcement of a judgment must be “brought under this subtitle” as a “suit affecting the parent-child relationship,” but a suit to enforce the terms of such an agreement as contract terms is not one “brought under this subtitle,” and, further, is not permitted unless the agreement provides that it may be enforced as a contract. If the contract does so provide, the suit may be brought, but it must be brought under the common law rather than “under this subtitle.” The effect of § 14.06(d) is to exclude from the operation of the Code an action to enforce the provisions of a support agreement “as contract terms” if the agreement provides that it may be so enforced. If such a suit is brought under the common law rather than under the Code, it is not a “suit affecting the parent-child relationship” as defined in § 11.01. Consequently, it is not within the “continuing jurisdiction” provisions of § 11.05, which apply to a “suit affecting the parent-child relationship.”

In view of this construction of Subtitle A, we must decide whether the present action is one to enforce the provisions of the support agreement “as contract terms,” and if so, whether the contract provides for such enforcement. We conclude that both of these questions must be answered in the affirmative. Plaintiff seeks only a judgment for damages for failure to make payments as provided by the contract, not an order holding defendant in contempt for failure to comply with the support order in the divorce decree or any other order appropriate to enforcement of a judgment. With respect to enforcement of the provisions of the agreement as contract terms, the agreement provides:

The parties hereto agree that they will request the Domestic Relations Court No. 3 of Dallas County, Texas to ratify, approve and confirm this Property Settlement Agreement in any Decree of Divorce which may be signed and entered in this cause, and they further agree that the covenants and agreements herein contained shall survive said Judgment and that such covenants and agreements shall be binding upon the parties hereto, and their heirs and legal representatives, until fully discharged.

The clear intent of this language is that the terms of the agreement shall be binding on the parties as contract terms and enforceable as such even though they are also set forth in the decree. Therefore, according to our interpretation of the Code as above stated, this suit is one excluded from the operation of Subtitle A rather than one brought under its provisions. Consequently, it may be maintained as a contract action based on the common law along with other issues concerning enforcement of the agreement, and the trial court erred in striking it.

Defendant asserts that plaintiff ought not to maintain this suit because after the agreement was made and the divorce decree was signed, the children ceased living with plaintiff and an action to change custody was instituted in the domestic relations court, which made an order appointing defendant as managing conservator. Since the question before us arises on an exception to plaintiff’s pleading, we are not called on to decide whether these facts, if true, would constitute a defense to plaintiff’s claim for contractual support payments or would afford defendant any remedy if plaintiff fails to use the funds “for the maintenance, education and support of such minor children,” as the agreement provides.

2. The Ansel Notes

The next question is whether the trial court properly denied the plaintiff recovery for one-half of the proceeds of the sale of certain notes of Ansel Manufacturing Corporation. Before the divorce, the parties owned three notes of this corporation aggregating $20,000 in face value, together with certain shares of stock in the corporation. Defendant had also guaranteed ten percent of the debts of the corporation, and this guaranty was presumably a community obligation. The property settlement agreement, which is dated April 20, 1972, and which embodies an oral agreement submitted' for the court’s approval at the divorce hearing on February 8, 1972, lists “125 shares of the capital stock of Ansel Manufacturing Company” as part of the “property partitioned to Kenneth O. Ad-wan,” but does not list the Ansel notes. Other notes are listed. A transcript of the evidence taken at the hearing of February 8, 1972, shows that plaintiff Mirlah Adwan agreed that defendant should receive the Ansel stock as part of the assets partitioned to him, but this evidence includes no reference to the notes.

After the divorce hearing and before the written agreement and divorce decree were signed, defendant sold the stock to another stockholder for $12,500 and sold the notes to the same purchaser for $10,000. The purchaser assumed liability on the guaranty of Ansel’s debt. Defendant did not reveal to plaintiff or her counsel that he had received these funds. He used the proceeds of the notes to pay obligations he had assumed under the settlement agreement, including plaintiff’s attorney’s fee. The decree provides that all assets not specifically mentioned “be and they are hereby partitioned to the parties hereto in common, share and share alike and that each party hereto be and they are hereby vested with fee simple title to an undivided one-half thereof.”

Plaintiff contends that since the notes are not listed and specifically partitioned, she remained the owner of a one-half interest and is entitled to one-half of the proceeds received by defendant. Defendant contends that the Ansel notes and stock were “treated by the parties as one package,” and, consequently, that the parties intended to include the notes as well as the stock among the assets partitioned to the defendant. He argues that the failure of the written agreement to include the notes was a mistake on the part of plaintiff’s attorney, who, at the hearing on February 8, inadvertently omitted any reference to these notes, although he had information about them from his pretrial discovery, but nevertheless stated in the presence of both parties and the judge, “I have outlined or identified all the properties I know of that are to be partitioned between the parties.” There was also evidence at the present trial showing that when the divorce case was heard on February 8,1972, the parties considered the Ansel notes and stock to be worthless, and that defendant offered them to plaintiff if she would assume the guaranty obligation, but that plaintiff, through her counsel, declined to accept them. There is also testimony in the present record that the other stockholder who purchased the notes and the stock did so in the mistaken belief that they had value although, in fact, they had none.

The trial court found that neither the stock nor the notes had any value and that both plaintiff and defendant “treated and considered the Ansel stock and Ansel notes as one package.”

We do not agree that the settlement agreement was effective to vest full ownership of the Ansel notes in defendant. Even if the parties did consider the stock and the notes for some purposes as “one package,” there is no evidence that they made any agreement to treat them as a single item in the division of their property. The circumstance that the notes and the stock had been offered to plaintiff if she would assume liability on the guaranty and plaintiff by her attorney had refused this offer has no bearing on the question of whether the notes as well as the stock were in fact partitioned to defendant in the settlement agreement. The notes were not mentioned at the hearing when the oral settlement agreement was presented to the court, and neither were they listed in the written agreement or in the divorce decree. Consequently, plaintiff retained her interest in them, and when they were sold, she was entitled to one-half of the proceeds. Since these proceeds were applied to obligations which defendant had assumed, he is liable to her for her part. (We have no problem as to whether plaintiff should assume liability on the guaranty because this liability was assumed by the purchaser, and if any contingent liability remains, it is within defendant’s general assumption of liability in the settlement agreement.)

Defendant argues that if the settlement agreement failed to include the notes, this failure was the result of a mutual mistake, or a mistake on the part of plaintiff’s attorney, since he knew of the existence of the notes but erroneously stated at the hearing on February 8 that he had identified all the properties to be partitioned. Consequently, defendant says that the agreement should be reformed to include the notes as well as the stock. We cannot reform the agreement because no such relief was sought in the trial court. We do not remand the cause to give defendant an opportunity to seek equitable reformation because the terms of the contract have been embodied in a judgment, and defendant does not suggest that the requisites of a bill of a review are present.

3. The Tax Refund

The other asset which plaintiff asserts was not divided at the time of the divorce was an alleged federal income tax refund for the year 1971. We conclude that the trial court was correct in holding that there was no such asset subject to division.

The evidence shows that defendant made an overpayment of the parties’ 1971 taxes in the amount of $4,042.03. A refund in this amount was requested in the tax return for that year. However, the Internal Revenue Service assessed a deficiency for the year 1969 of more than $13,000 and applied the overpayment to the deficiency.

Plaintiff contends that since by the terms of the settlement agreement defendant agreed to “pay all income taxes legally assessed against [the parties] or either of them attributable to the income received by the parties from the date of their marriage, up to and including February 8, 1972,” the payment of the 1969 deficiency was defendant’s individual obligation, and, consequently, that defendant could not properly apply her interest in the credit for overpayment of the 1971 tax to this obligation. Plaintiff further suggests that defendant deliberately made an overpayment of the 1971 tax in January 1972 in order to apply community funds to discharge his individual liability assumed in the property settlement agreement.

We find no merit in this contention. The settlement agreement was not made until February 8, 1972, and was not reduced to writing and signed until April 20, 1972. If defendant suspected in January 1972 that he would face a deficiency for previous years, he had the right to file an amended return and use community funds to pay the additional tax due. If, instead of making an additional payment for 1969, he chose to make an overpayment for 1971, the Internal Revenue Service was authorized to apply that overpayment to the deficiency for 1969, as it did, rather than issue a check for a refund. The net effect was that the overpayment in January 1972 resulted in discharge of an existing tax liability, and there was never a refund which could properly be considered an undivided asset at the time of the divorce.

The judgment is affirmed in so far as it concerns plaintiff’s claim for the alleged tax refund. In so far as the judgment denies recovery of one-half of the proceeds of the sale of the Ansel notes, that judgment is reversed and judgment is here rendered for plaintiff in the amount of $5,000 with interest from March 20, 1972, the date of the sale, at the rate of six percent per annum. In so far as the judgment denies recovery for past and future child support payments, it is reversed and the cause is remanded to the district court for further proceedings.

      . This exception is an improper “speaking demurrer,” since it is based on facts not alleged in the petition, but our holding would be the same if it were a plea in abatement properly verified.

      . In view of our disposition of this matter, we need not consider defendant’s argument that § 11.05 does not deprive the district court of jurisdiction because this suit was filed before the effective date of Title 2 of the Code. Our holding should not be construed, however, as passing on the question of whether § 11.05 affects a suit pending at the time Title 2 became effective.

      . Defendant provides no record references to support this assertion, and we have found nothing in the record to support it other than the unsupported allegation in defendant’s exception, but under our holding this omission is immaterial.


text:
    WITHERS-BUSBY GROUP, Appellant, v. SURETY INDUSTRIES, INC., Appellee.
    No. 18932.
    Court of Civil Appeals of Texas, Dallas.
    May 27, 1976.
    James E. Fordham, Jr., Sidney McClain, Dallas, for appellant.
    R. L. McSpedden, Collie, McSpedden & Roberts, Dallas, for appellee.
   GUITTARD, Justice.

The question on this appeal is the validity of a provision in a joint venture agreement requiring arbitration of disputes arising in the future. We hold that the agreement is not within the terms of the federal statute and that the provision for arbitration is not valid under the Texas statute because it does not bear the signatures of counsel. Accordingly, we affirm the order of the trial court issuing a temporary injunction restraining arbitration.

Appellant Withers-Busby Group, defendant in the trial court, concedes that an agreement to arbitrate disputes to arise in the future is unenforceable under the common law. Consequently, appellant relies on statutory law.

Enforceability of the agreement under the Federal Arbitration Act, 9 U.S.C. § 2 et seq. (1970) turns on the question of whether it involves “commerce between the states,” as provided in that Act. The agreement was signed by appellant Withers-Busby Group and Surety Leasing Company, Inc., both residents of Texas. It is styled “Agreement to Form a Joint Venture.” It recites that the parties desire to enter into this agreement before actual execution of a joint venture agreement in order to facilitate certain business transactions then pending between the parties. The pending transactions are not described, and the purpose of the proposed venture is specified only as “leasing and financing transactions.” The principal place of business of the venture is specified as Dallas, Texas. The provision for arbitration is as follows:

Any dispute arising out of, in connection with, or in relation to this Agreement, or any breach thereof, shall be determined and settled by arbitration in Dallas, Texas, pursuant to the rules then obtaining of the American Arbitration Association.

There was testimony that the parties contemplated extensive business in the future on a nationwide scale, but no evidence that such business ever materialized. The dispute of which appellant demanded arbitration concerned financing of certain lease contracts between General Computer Systems, Inc., a Texas-based corporation, and various lessees, some of which may have been located in other states. Appellee Surety Leasing Company had purchased the right to receive payments under several of these contracts, and this purchase had been financed by certain banks located in Texas. The dispute concerned whether this transaction was within the terms of the proposed joint venture. Appellant concedes that a fact issue is raised as to whether the contract involved “commerce between the states.” Since the trial court issued the temporary injunction restraining arbitration, we must presume in support of the judgment that the court found that the contract did not involve “commerce between the states.” In view of this presumed fact finding, we cannot say that the trial court abused its discretion in holding that the contract was not within the terms of the federal act.

Enforceability of the agreement under state law turns on the question of whether an agreement to arbitrate is valid without signatures of counsel for both parties evidencing that the agreement was concluded on their advice. The contract bears no signature of counsel. We hold that under the plain provisions of the statute it is not valid. The applicable statute is Tex. Rev.Civ.Stat.Ann. art. 224 (Vernon 1973) as follows:

A written agreement concluded upon the advice of counsel to both parties as evidenced by counsels’ signatures thereto to submit any existing controversy to arbitration or a provision in a written contract concluded upon the advice of counsel to both parties as evidenced by counsels’ signatures thereto to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exists at law or in equity for the revocation of any contract.

The clear meaning of the statute is that the advice of counsel must be evidenced by counsel’s signatures on the written contract. We do not agree with appellant’s contention that signatures of counsel are not necessary because § B of article 225, the next section of the Texas Act, provides for a stay of arbitration proceedings on a showing that there is “no agreement to arbitrate,” rather than on a showing that there is no valid agreement to arbitrate under the provisions of article 224. The two articles must be read together, since they are parts of the same statute. Tex.Laws 1965, ch. 689, at 1593. Section A of article 225 expressly authorizes enforcement of “an agreement described in Article 224 of this Act.” When the two articles are read together, there is no room for doubt that the legislature intended to limit the enforceability of arbitration agreements to those bearing the signatures of counsel for both parties as evidence that the contract was concluded on their advice.

Appellant also insists that appellee cannot dispute the enforceability of the agreement because it was prepared by ap-pellee’s counsel, who assured representatives of appellant that it was valid. We do not agree. Appellant has cited no authority, and we have found none, supporting the view that an invalid agreement may be enforced because one of the parties, or his counsel, represented to the other party before the contract was signed that it was valid and enforceable. Whether such a representation would give rise to an action for damages is a question not presented on this appeal.

Affirmed.


author: COULSON, Justice.

text:
    Robert Howard HISLER et ux., Appellants, v. CHANNELVIEW BANK, Appellee.
    No. 1406.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 2, 1976.
    Rehearing Denied June 23, 1976.
    Kenneth C. Kaye, League City, for appellants.
    W. B. Irwin, Jr., Galena Park, for appel-lee.
   COULSON, Justice.

Channelview Bank sued Robert and Edna Hisler in the District Court of Harris County for relief under the terms of a promissory note and security agreement executed by the Hislers and assigned to Channelview Bank. Default judgment was entered for Channelview by the trial court. The His-lers have brought this appeal by writ of error claiming that service was void as a matter of law. We reverse and remand.

The issue in this case is whether the citation was properly served in order to give the trial court jurisdiction of the matter. The citation was directed to Robert Howard Hisler and Edna Frances Hisler. The return of the citation shows on its face that personal service was obtained by a sheriff or deputy of Harris County at Anah-uac, located in Chambers County. The His-lers did not appear and default judgment was entered against them.

Texas Rule of Civil Procedure 103 provides that:

All process may be served by the sheriff or any constable of any county in which the party to be served is found, provided that no officer who is a party to or interested in the outcome of the suit shall serve any process therein.

Texas Rule of Civil Procedure 104 provides that:

If there is no officer qualified to servé the process in a particular suit in the county in which the same is to be executed, the judge of the court in which said cause is pending may enter an order in the cause directing that all process to be executed in said county shall be served by a resident citizen of such county.

It is well settled that for a valid service of civil citation the officer serving citation must be acting within the county wherein he is an officer. Witt v. Kaufman & Kleaver, 25 Tex. 384 (1860); Boulevard Undertaking Co. v. Breaker, 42 S.W.2d 451 (Tex.Civ.App., Beaumont 1931, no writ); 2 R. McDonald, Texas Civil Practice § 9.11 (1970). It is apparent that the Rules of Civil Procedure comport with former Article 2022 requiring service of citation to be performed by an officer of a county within which he has authority to act as an officer.

The service of citation being defective on its face, the default judgment entered by the trial court is subject to attack by writ of error.

Reversed and remanded.


author: J. CURTISS BROWN, Chief Justice.

text:
    John L. MERCER, a minor, Individually, et al., Appellants, v. The BOARD OF TRUSTEES, NORTH FOREST INDEPENDENT SCHOOL DISTRICT, et al., Appellees.
    No. 1302.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    June 2, 1976.
    Rehearing Denied June 23, 1976.

      Michael T. Donohue, Patricia Ann O’Kane, Houston, for appellants.
    William E. Junell, Jr., Reynolds, White, Allen & Cook, Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is a suit challenging the validity of a public school hair-length regulation.

John L. Mercer (Mercer or appellant), through his parents as next friends, brought suit in the district court against the Board of Trustees of the North Forest Independent School District (School District or appellees) to enjoin the enforcement of a School District regulation that restricted the length to which male students could wear their hair. After a hearing the trial court denied Mercer’s application for temporary injunction, and he has perfected this appeal.

On August 21, 1975 Mercer was suspended from school for being in violation of the hair-length regulation. He asserts that inasmuch as the regulation applies only to male students and not to female students it is violative of article I, § 3a of the Texas Constitution. This provision, adopted in 1972 and commonly known as the Texas Equal Rights Amendment (hereinafter referred to as the ERA), reads as follows:

“Section 3a. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.”

Unheard of until a few years ago, cases challenging the validity of hair-length regulations and dress codes are now legion. See Annot., 14 A.L.R.3d 1201 (1967, Supp.1975); Comment, Long Hair and the Law, 24 Kan. L.Rev. 143 (1975); 84 Harv.L.Rev. 1702 (1971). Appellees cite numerous federal cases that uphold such regulations and urge that we follow their reasoning. We decline to base our decision on the holdings of the federal courts for two reasons. First, the federal circuits are split on the issue of hair-length regulations. The First Second, Fourth, Seventh, and Eighth Circuits have been receptive to challenges of such regulations. The Fifth, Sixth, Ninth, Tenth, and District of Columbia Circuits have not been so hospitable to similar claims. The position of the Third Circuit is presently unclear . Considering the divergent views of the various circuits, “avoidance of the federal thicket is the better course.” Breese v. Smith, 501 P.2d 159, 166 (Alas.1972). State cases on the question are also divided. See Annot., 14 A.L.R.3d 1201 (1967, Supp.1975); Breese v. Smith, supra at 165.

Second, and perhaps more important, the present claim is based on a provision of the Texas Constitution that is not contained in the United States Constitution. Federal courts have dealt with hair-length claims based on the first amendment, ninth amendment, equal protection and due process clauses of the fourteenth amendment, and the right of privacy, but we have found no such claim, federal or state, that has ever been based on an ERA. Therefore, appellants’ claim must stand or fall on an interpretation of the ERA contained in the Constitution of the State of Texas.

Cases interpreting the Texas ERA are few in number, and their holdings are limited in scope. For instance, it has been stated that under the ERA the duty of the spouses to support their minor children is equal. Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ). In an action brought by the mother to gain custody of a minor child, the father may properly be allowed attorney’s fees from the mother on the theory that such fees are “necessaries”. Perkins v. Freeman, 501 S.W.2d 424 (Tex.Civ.App. — Beaumont 1973), rev’d on other grounds, 518 S.W.2d 532 (Tex.Sup.1974). Likewise, in a divorce action such factors as disparate earning capacities, business opportunities, and ability may justify the recovery of attorney’s fees by the husband rather than the wife. Lipshy v. Lipshy, 525 S.W.2d 222 (Tex.Civ.App. —Dallas 1975, writ dism’d). Where the duties of a “patrolman” and a “patrolwoman” were different, and the plaintiff had applied for patrolwoman and never been denied employment as a patrolman, ordinances setting up such classifications were held not to violate the plaintiff’s rights to equal protection under the United States and Texas Constitutions. Turner v. City of Baytown, 516 S.W.2d 270 (Tex.Civ.App.— Houston [14th Dist.] 1974, no writ). A college rule requiring undergraduate female students — but not male students — under the age of 23 to live in on-campus dormitories was held to violate the ERA. Texas Woman’s University v. Chayklintaste, 521 S.W.2d 949 (Tex.Civ.App. — Fort Worth), rev’d on other grounds, 530 S.W.2d 927 (Tex.Sup.1975). Recently, the court of criminal appeals upheld the constitutionality of the Texas rape statute. Finley v. State, 527 S.W.2d 553 (Tex.Crim.App.1975).

With so little precedent on which to rely it is appropriate that we examine the manner in which other jurisdictions have handled the same or similar problems. In reviewing legislation under the equal protection clause of the fourteenth amendment, the United States Supreme Court has used two primary standards of review. Under the first standard, permissive review, a law which classifies persons for different treatment will be upheld so long as there is some rational basis for the classification; i. e., so long as the classification is “reasonable, not arbitrary, and . . . rest[s] upon some ground of difference having a fair and substantial relation to the object of the legislation . . . .” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). Under the second standard, active or strict review, the classification will be upheld only if the governmental body makes a showing of a compelling interest to justify the classification. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Strict review is triggered either by laws which affect certain “fundamental rights” (such as voting, travel, and procreation) or which provide for different treatment of persons on the basis of a “suspect classification” (such as race, alienage, and national origin).

We think this two-tiered approach, while by no means an ideal system, is an appropriate method by which to determine the constitutionality of laws under the ERA. We therefore adopt it in the present case. The next question, then, becomes whether or not sex-based classifications are suspect under the Téxas ERA.

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), four members of the United States Supreme Court joined in a plurality opinion that held sex-based classifications to be suspect under the fourteenth amendment and require strict judicial scrutiny. Though the Court has since retreated from that stand, Justice Powell’s concurring opinion in Frontie-ro, in which Chief Justice Burger and Justice Blackmun joined, is significant:

“There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment.” 411 U.S. at 692, 93 S.Ct. at 1773 (emphasis added).

Thus, while four members of the Court felt that sex-based classifications required strict review under the equal protection clause of the fourteenth amendment, three others took for granted that adoption of the federal ERA would require it.

The constitutions of at least twelve other states besides Texas contain an ERA or its equivalent. Three of these states have interpreted their constitutional provision as requiring strict judicial review of sex-based classifications. See People v. Green, 183 Colo. 25, 514 P.2d 769 (1973); People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98 (1974); Hanson v. Hutt, 83 Wash.2d 195, 517 P.2d 599 (1973). Two states have applied permissive review in sex-discrimination cases. See Stanton v. Stanton, 30 Utah 2d 315, 517 P.2d 1010 (1974), rev’d, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Archer v. Mayes, 213 Va. 633, 194 S.E.2d 707 (1973). The courts of one state, Maryland, have apparently divided on the issue. Compare Maryland State Board of Barber Examiners v. Kuhn, 270 Md. 496, 312 A.2d 216 (1973), with Brooks v. State, 24 Md.App. 334, 330 A.2d 670 (1975). Another state, Pennsylvania, has adverted to the issue but has yet to make a definitive holding. See Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851, 858 (1974). It should be noted, however, that the Pennsylvania Supreme Court has used unqualified language in referring to the effect of its ERA: “In this Commonwealth, sex may no longer be accepted as an exclusive classifying tool.” Id. 328 A.2d at 855; accord, Henderson v. Henderson, 458 Pa. 97, 327 A.2d 60 (1974); Commonwealth v. Pennsylvania Interscholastic Athletic Association, 18 Pa.Cmwlth. 45, 334 A.2d 839 (1975).

One of the most thorough and well-reasoned opinions came from the Supreme Court of Washington in the recent ease of Darrin v. Gould, 85 Wash.2d 859, 540 P.2d 882 (1975). The case involved a claim of illegal discrimination against girls in the field of high school interscholastic football competition. In striking down the school district’s regulation the court went beyond its previous holding in Hanson v. Hutt, supra, and concluded that their ERA’s prohibition of sex discrimination was an absolute one:

“In the absence of Const, art. 31, it might have been argued (as in the case of the Fourteenth Amendment and Const, art. 1, § 12) sex classifications are valid if they bear a rational relationship to the purpose of the classifications especially if they survive the strict scrutiny test. Whatever doubts on that score might have been formerly entertained, Const, art. 31 added something to the prior prevailing law by eliminating otherwise permissible sex discrimination if the rational relationship or strict scrutiny tests were met.
When the Darrin girls were denied permission to play in the fall of 1973, Const, art. 31, § 1, Washington’s Equal Rights Amendment provided:
Equality of rights and responsibility under the law shall not be denied or abridged on account of sex. (Italics ours.)
Const, art. 31, provided the latest expression of the constitutional law of the state, dealing with sex discrimination, as adopted by the people themselves. Presumably the people in adopting Const, art. 31 intended to do more than repeat what was already contained in the otherwise governing constitutional provisions, federal and state, by which discrimination based on sex was permissible under the rational relationship and strict scrutiny tests. Any other view would mean the people intended to accomplish no change in the existing constitutional law governing sex discrimination, except possibly to make the validity of a classification based on sex come within the suspect class under Const, art. 1, § 12. . . . Had such a limited purpose been intended, there would have been no necessity to resort to the broad, sweeping, mandatory language of the Equal Rights Amendment. See Comment, Sex Discrimination in Interscholastic High School Athletics, 25 Syracuse L.Rev. 535, 570-74 (1974).
The Federal Equal Rights Amendment (now ratified by 34 of the 38 states needed to make it effective) whose purpose is to render illegal action by states permitting discrimination based on sex, . was intended to outlaw interpretations of the Equal Protection and Due Process Clauses that permitted exceptions to the prohibition against sex discrimination.” 540 P.2d at 889-90.

We also note that commentators who have written on the subject have uniformly concluded that at the very least strict review should be used under an ERA. See, e. g., Note, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment? 84 Harv.L.Rev. 1499 (1971); Brown, Emerson, Falk, and Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871 (1971); Comment, An Overview of the Equal Rights Amendment in Texas, 11 Hous.L.Rev. 136 (1973); Comment, Barefoot and Pregnant — Still: Equal Protection for Women in Light of Geduldig v. Aiello, 16 S.Tex.L.J. 211 (1975); 7 Tex.Tech.L.Rev. 724, 729 (1976).

We cannot agree with the Supreme Court of Washington that the ERA admits of no exceptions to its prohibition of sex discrimination. Any classification based upon sex is a suspect classification, and any law or regulation that classifies persons for different treatment on the basis of their sex is subject to strictest judicial scrutiny. Any such classification must fall unless the party defending it can show that it is required by (1) physical characteristics, (2) other constitutionally protected rights such as the right of privacy, or (3) other “compelling reasons.” With respect to “physical characteristics” we are simply recognizing the facts of life. For us to adjudicate that women are men would be as futile as it would be absurd. Neither the ERA nor the rights established by it require us to construe it so as to deny sexual or reproductive differences between the sexes. Nor does the ERA require that such rights so established (and so long denied) be enforced where they come into conflict with other basic fundamental constitutionally-protected rights such as that of privacy. To justify a suspect classification by “compelling reasons” places the burden of proof and persuasion on the party defending the classification.

In considering the dress code in the context of the present case we recognize that juveniles have been afforded certain constitutional rights. See, e. g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). However, children are in a formative period of their lives wherein their values are being established by parents, church, and school. All may reasonably establish rules of conduct arising out of the relationship without intervention of the courts. The schools stand somewhat in loco parentis to the child. Living by rules, sometimes seemingly arbitrary ones, is the lot of children. School is of necessity made up of “rules.” They establish the time for beginning class, recess, exercise, study periods, outside assignments, athletic activities, playground conduct, use of parking and other school facilities such as lockers — all inexorably intertwined with academic, personal, artistic, and cultural pursuits. See Karr v. Schmidt, 460 F.2d 609, 615-16 (5th Cir. 1972). The school-yard fight requires immediate intervention and disciplinary action. To require warning of constitutional rights, the right to summon and examine witnesses, the aid of counsel and a full evidentiary hearing with regard to a schoolhouse fracas would place our constitutional rights and freedoms in disrepute rather than protect them.

Court intervention is simply not a suitable device with which to enforce some rights. Others beside the judiciary are charged with following the dictates of our constitutions. We must be wise enough to perceive that constant judicial intervention in some institutions does more harm than good. We believe that there are some areas in which our intervention does not offer a practical solution. We make this observation in full sympathy with Judge Wisdom’s statement in his dissent in Karr v. Schmidt, supra at 619: “Individual rights never seen important to those who tolerate their infringement.” However, in this case we find our heavy hand ample reason for withholding it.

The trial court did not abuse its discretion in refusing to intervene in this dispute by granting the equitable writ of injunction.

Affirmed.

      . Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970).

      . Kamerling v. O’Hagan, 512 F.2d 443 (2d Cir. 1975); Dwen v. Barry, 483 F.2d 1126 (2d Cir. 1973). But see Kelley v. Johnson, - U.S. -, 96 S.Ct. 1440, 47 L.Ed.2d 708, 44 U.S. L.W. 4469 (1976).

      . Long v. Zopp, 476 F.2d 180 (4th Cir. 1973); Massie v. Henry, 455 F.2d 779 (4th Cir. 1972).

      . Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1975); Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972).

      . Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971) (public school regulation). The Eighth Circuit has upheld hair-length regulations where they concerned police departments or prisons. See Stradley v. Andersen, 478 F.2d 188 (8th Cir. 1973) (police department); Rinehart v. Brewer, 491 F.2d 705 (8th Cir. 1974) (prison).

      . Karr v. Schmidt, 460 F.2d 609 (5th Cir.) (court en banc divided 8-7), cert. denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972). _ But cf. Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2268, 36 L.Ed.2d 964 (1973).

      . Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971); Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 55, 27 L.Ed.2d 88 (1970).

      . King v. Saddleback Junior College Dist., 445 F.2d 932 (9th Cir.), cert. denied, 404 U.S. 979, 92 S.Ct. 342, 30 L.Ed.2d 294 (1971) and 404 U.S. 1042 (1972).

      . Hatch v. Goerke, 502 F.2d 1189 (10th Cir. 1974); Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489 (1972).

      . Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115 (D.C.Cir.1973).

      . Compare Stull v. School Board, 459 F.2d 339 (3d Cir. 1972), with Zeller v. Donegal School Dist. Bd. of Educ., 517 F.2d 600 (3d Cir. 1975).

      . See Comment, Long Hair and the Law, supra; Breese v. Smith, supra at 165-66.

      . Tex.Penal Code Ann. § 21.02 (1974).

      . See Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974).

      . Colo.Const. art. II, § 29; Conn.Const. art. I, § 20; Hawaii Const, art. I, § 4; Ill.Const. art. I, § 18; Md.Const., Declaration of Rights, art. 46; Mont.Const. art. II, § 4; N.M.Const. art. II, § 18; Pa.Const. art. I, § 28; Utah Const, art. IV, § 1; Va.Const. art. I, § 11; Wash.Const. art. 31, § 1; Wyo.Const. art. I, § 3.