author: ELLIS, Chief Justice.

text:
    James Lewis MEANS II, Appellant, v. Mary Kathleen MEANS, Appellee.
    No. 8610.
    Court of Civil Appeals of Texas, Amarillo.
    March 29, 1976.

      Edwards & Associates, James R. Edwards, Lubbock, for appellant.
    Allison & Davis, John H. Davis and Andrew J. Kupper, Jr., Levelland, for appellee.
   ELLIS, Chief Justice.

In this divorce action, the husband-appellant has appealed from that portion of the judgment dividing the property of the parties. Also, the wife-appellee, by cross-points, has challenged certain aspects of the property division. Affirmed.

The suit was brought on August 14,1974, by Mary Kathleen Means, petitioner-appel-lee, against her husband, James Lewis Means II, respondent-appellant, on the grounds of “insupportability,” and, alternatively, on grounds of cruelty. The husband’s answer, filed on January 2, 1975, included a general denial and cross-action. The parties were married on November 26, 1969, and separated on or about August 11, 1974. The husband was engaged in an aerial crop-spraying business, known as Means Flying Service, while the wife performed the duties of a housewife, did some bookkeeping for the crop-spraying business and occasionally acted as a “flagman” for her husband as he conducted spraying operations. The parties will be herein referred to as “husband” and “wife.”

The suit was tried before the court without a jury on January 29, 1975. On April 28,1975, the court entered its decree granting the wife a divorce; appointed her as managing conservator and the husband as possessory conservator of a minor child; provided for child support; and divided the property of the parties. Both parties filed a motion for new trial, and the husband moved for findings of fact and conclusions of law. On May 10,1975, the court amended its decree to include the disposition of certain property omitted from the original decree.

In its findings of fact and conclusions of law, the trial court designated certain items of property as the husband’s separate property, with a total value of $124,140.91, while the property designated as the wife’s separate property was valued at the total sum of $3,175.00. The total value of the community estate was $122,859.64, and community liabilities were in the total amount of $75,-725.63. It is noted that the court found that the community estate included a 96 acre tract of land in Jack County, Texas, valued at $14,500.00 and an 80 acre farm together with improvements and equipment located in Hockley County, Texas, valued at $35,701.81 (with $5,400.00 indebtedness thereon, shown as a part of the liabilities of the community estate). Also four bank accounts in the total sum of $21,651.26 (pri- or to deduction for an offset allowed in the judgment) were included as a part of the community property. The trial court further found that three lawsuits for damages allegedly arising out of the spraying operations were, at the time of the trial, pending against the community estate; that insurance coverage for each occurrence in the sum of $25,000.00 was maintained by the husband; and that recovery of any amounts in excess of the insurance coverage is unlikely.

The parties complain only of the portion of the decree dividing the property. The husband raises five points of error. The wife replies and raises three cross-points.

The husband’s points of error numbers 1, 3, and 4 directly attack the exercise of discretion by the trial court in its disposition of the community property and liabilities. Although the value of the net community estate computed from the findings of fact was $47,134.01, these findings did not include certain community property consisting of furnishings, equipment and furniture that the wife had in her possession. On the face of the decree it appears that the wife received a net value of approximately $32,-733.42 in community property, and the husband received a net value of approximately $16,261.00 from the community estate. The husband contends that the trial court made approximately a two-thirds, one-third division of the net community estate with the wife receiving the larger portion, and that such division is not supported by the evidence and is a grave abuse of discretion.

Under the provisions of the judgment, the trial court awarded to the wife: the 96 acre tract of land (community) located in Jack County, Texas; the sum of $6,433.42, representing one-half of the $12,866.85 remaining from community bank account funds (after deducting from the total of $21,651.26 in community bank accounts the sum of $8,784.41 as an apparent offset in the husband’s favor claimed by him for funds taken from his “personal account and used for community purposes” as shown in his First Amended Inventory, Appraisal, and List of Liabilities); all household furniture in her possession; clothing and personal effects of her and the minor child; a sewing machine; and the sum of $10,000.00 to be paid in cash by the husband. The trial court further awarded to the wife certain items claimed by her as her separate property having a total value of $3,175.00.

Under the judgment, the husband was awarded: the 80 acre farm (community) in Hockley County, Texas, with improvements and equipment; the sum of $6,433.42, representing one-half of the $12,866.85 remaining from community bank account funds, after allowance of the offset above described; property designated as husband’s separate property including all items of business property (from Means Flying Service, the crop-spraying enterprise); certain household items; accounts receivable valued at $40,496.80; a Keogh retirement plan; a 1974 automobile; separate property bank accounts totaling approximately $49,900; separate residential property (including a residence in Ropesville, Texas, and a house and lot in Carlsbad, New Mexico); and certain separate personal property valued by the husband at $870. Also, the husband was ordered to pay all community debts and liabilities up to and including the date of the divorce.

The statutory provision governing the court’s action in dividing the property is Tex. Family Code Ann. § 3.63, which sets out “. . . the 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 not required that the property be divided equally. Reaney v. Reaney, 505 S.W.2d 338 (Tex.Civ.App.-Dallas 1974, no writ); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.-Dallas 1969, writ dism’d). Also, in making a division of the property the court may consider the disparity of the earning powers of the parties. See 3 O. Speer, Marital Rights in Texas, § 835, pp. 178-179 (4th ed. 1961); Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App.-Tyler 1966, no writ). Moreover, the broad discretion possessed by the trial court in the division of property on divorce will be disturbed only when an abuse of discretion is shown. Bell v. Bell, 513 S.W.2d 20 (Tex.1974); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.-Tyler 1974, no writ).

We consider it significant in the division of the property that the husband was awarded all property connected with Means Flying Service. The evidence revealed that the flying service produced substantially all of the community income.

After the parties separated, the wife took a position as a secretary-bookkeeper from which she earned about $100 per week. The property awarded to the wife is not of a nature that will produce a substantial amount of income. She has had no business experience except in aid of her husband in Means Flying Service. She must rely on her salary as a secretary-bookkeeper as her primary source of income. The trial court found that the husband “is capable of and is presently earning an annual income far in excess” of that of the wife. This finding is clearly supported by the evidence.

The husband maintains that the trial court should not have required him to assume and pay all community debts of the parties. In view of the difference in business experience and income-producing capacity of the parties, the trial court was well within its proper exercise of discretion not only in making the unequal division of community property but also in determining that the husband should be liable for the debts of the community estate. Additionally, we note that a substantial portion of the debts is connected with the business operations of the husband.

The husband also contends that the trial court should have offset the community assets against the potential community liability resulting from claims and lawsuits for damages arising out of crop-spraying operations. There was no testimony as to the relative merits of these claims, but only testimony that the claims were made, and that claims in the past had been settled within the insurance coverage up to $25,000 in each case after a $1,000 deductible.

In connection with this contention, the husband points to Tex. Family Code Ann. § 5.61(d) which provides that the community property is subject to the tortious liability of either spouse incurred during marriage. The claims against the principal business of the husband were not reduced to judgments in specific amounts, and there is a lack of proof as to the precise nature of the claims and suits. It appears that the husband did not meet the burden of establishing these claims or their nature with sufficient certainty to enable the trial court to give recognition to the alleged potential liability as a specific sum of offset against the community property. It is our opinion that the nature of the evidence submitted with respect to the potential liabilities as revealed by the record was so uncertain and speculative that the trial court was justified in its determination that the husband’s contended offset for the contingent liabilities should not be allowed. The trial court was entitled to consider the contingent liability situation along with various other factors with respect to arriving at a “just and right” overall division of the property and in assigning responsibility for contingent liabilities. Moreover, we find no showing of an abuse of discretion by the trial court, in the light of all the circumstances, in its determination of this aspect of the case.

Considering the circumstances of the parties and the nature of the property involved, as shown by the record as a whole, we cannot say that the trial court abused its discretion in making the division of the community property. Points of error numbers 1, 3 and 4 are overruled.

In his second point, the husband contends that the trial court erred in awarding to the wife the 96 acre tract of land which he insists is his separate property. It is well settled that there is a rebuttable presumption that real property acquired by the husband or wife during marriage is community property. Tex. Family Code Ann. § 5.02; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Wadsworth v. Cole, 265 S.W.2d 628 (Tex.Civ.App.-El Paso 1954, no writ); Strickland v. Pilgrim, 300 S.W. 215 (Tex.Civ.App.-Waco 1927, no writ). Also, see 1 O. Speer, Marital Rights of Texas, § 395, pp. 581-582 (4th ed. 1961).

The 96 acre tract was purchased in February, 1974, during the marriage of the parties. The purchase price was paid by a check in the amount of $14,500 drawn on the Means Flying Service Account, a community bank account. The testimony concerning the origin of the funds in the account from which the purchase was made was conflicting and uncertain. There was evidence that funds in the account asserted to be separate had been commingled with community funds. If the funds are so commingled that the separate and community cannot be distinguished the account is regarded as a community account. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529 (1940); Rippy v. Rippy, 49 S.W.2d 494 (Tex.Civ. App.-Austin 1932, writ ref’d); Moore v. Moore, 192 S.W.2d 929 (Tex.Civ.App.-Fort Worth 1946, no writ). Under the record we are unable to conclude that such funds were sufficiently traced as the husband’s separate property and not commingled with community property to overcome the presumption that the account was community property. Based upon the foregoing, we cannot say that the trial court erred in finding the 96 acre tract to be community property and in awarding the property to the wife. The husband’s second point of error is overruled.

In the husband’s fifth point of error he asserts that the decree is not supported by the evidence. In the light of the foregoing discussion and from a review of the record as a whole, it is our opinion that the decree is amply supported by the evidence. Point of error number 5 is overruled.

We next consider the wife’s cross-points of error. In her first cross-point the wife complains that the trial court erred in permitting the husband to submit an amended inventory and appraisal after both parties had rested and closed and in basing its division of property on the amended inventory and appraisal. After both parties had rested and closed, the trial court required that the husband submit an inventory and appraisal “under oath” by the husband. Although the husband had on file at the time of trial an inventory and appraisal signed and sworn to by his attorney, the trial court did not consider it adequate. The trial court stated further that it would grant the divorce at the time the property was divided “and if we need another hearing on it, we will come back here Friday morning of this week.” There was further discussion in open court between the husband’s attorney and the trial court concerning the content and form of the inventory and appraisal to be filed. It appears that the wife’s attorney was present during the discussion, and he made no objection to the procedure whereunder the court would subsequently receive the husband’s sworn inventory and appraisal, nor did he make any statement or objection concerning the apparent likelihood that the trial court would consider the husband’s amended inventory and appraisal in making the decision as to the property division.

The trial date was January 29,1975. The husband filed his First Amended Inventory, Appraisal, and List of Liabilities on February 24, 1975. The certificate signed by the husband’s attorney shows that the wife’s attorney was served with a copy of the amended inventory and appraisal on February 24,1975, and a copy of the brief filed in support of the amended inventory and appraisal was mailed to the wife’s attorney on February 28, 1975. The decree of divorce was signed on April 28, 1975, and an amended decree of divorce was signed and entered on May 10,1975. Both the original decree and the amended decree contained various references to the husband’s first amended inventory and appraisal. The only significant difference between the original and amended decree was the addition of a provision for disposing of an omitted item of property in the amended decree. The wife’s motion for new trial was filed May 9, 1975, and no specific reference or assignment of error was made in the motion to the actions of the trial court of which she now complains. The wife’s attorney did not request that the case be re-opened for cross-examination or for the development of testimony in rebuttal to the husband’s amended inventory and appraisal. There was no written reply or response of any kind to the husband’s amended inventory and appraisal filed with the court. The amended decree was entered approximately two and one-half months after the sworn amended inventory and appraisal was filed, and the copy thereof served upon the wife’s attorney. The husband’s attorney requested the court to make and file findings of fact and conclusions of law, and the court filed its findings and conclusions on June 24, 1975. The wife neither filed objections to the findings and conclusions nor requested additional or amended findings. It was quite apparent that the trial court had considered and referred to such amended inventory and appraisal in the judgment and in the findings and conclusions. In view of these circumstances, it is our opinion that since the errors complained of were raised for the first time on appeal, the wife has waived the errors complained of in cross-point number 1. Blackmon v. Trail, 12 S.W.2d 967 (Tex.Comm’n App.1929, jdgmt adopted). Also, see Griffith v. State, 391 S.W.2d 428 (Tex.Crim.App.1965). The wife’s cross-point number 1 is overruled.

In her second cross-point of error, the wife complains that the trial court erred in awarding her $6,433.42 rather than $10,-825.63 which, the wife contends, represents one-half of the total of “community personal property bank accounts” as listed in Respondent’s First Amended Inventory and Appraisal. The amount awarded to the wife by the amended decree was ordered “to be paid to Petitioner in cash, representing one-half of $12,866.85 from bank accounts listed as Items 1, 3, 4, and 5” in the husband’s amended inventory and appraisal. The amounts listed as Items 1, 3, 4, and 5 aggregate the sum of $21,651.26. However, in the husband’s sworn amended inventory and appraisal it was noted that $8,784.41 “was taken from personal account and used for community purposes.” The husband then deducted this amount from the total of Items 1, 3, 4, and 5 leaving the “bottom-line” figure of $12,866.85 which the trial court divided equally between the parties in its decree. Apparently the trial court recognized the $8,784.41 as an offset in favor of the husband for money taken from his separate account and used for community purposes. In its findings of fact the trial court listed the same four amounts as listed by the husband in Items 1, 3, 4, and 5 and their sum, $21,651.26, shown in the amended inventory and appraisal as community property, without notation as to the $8,784.41 offset included in the sworn amended inventory and appraisal and allowed as a deduction in the judgment.

We observe that prior to this appeal the wife did not challenge or request any change in the sworn amended inventory and appraisal containing the notation as to the above mentioned $8,784.41 offset against the community bank accounts. Further, no specific reference was made to the matter in the wife’s motion for new trial. Moreover, the wife made no request for additional or amended findings of facts or conclusions of law.

The disposition of the community bank accounts made by the trial court in the judgment is supported by the sworn amended inventory and appraisal filed by the husband pursuant to the request of the court. Therefore, we cannot say the court abused its discretion in its disposition of the community bank accounts. Cross-point number 2 is overruled.

In her third cross-point, the wife contends that the trial court erred in designating two certain bank accounts as the separate property of the husband and in awarding him the total sum of $26,812.30 contained in these two accounts. The amounts awarded were claimed and shown by the husband as separate property in his sworn amended inventory and appraisal. As pointed out in connection with cross-point number 2, no objection was made to the sworn inventory and appraisal, the matter was not specifically included in the motion for new trial, nor were additional or amended findings of fact or conclusions of law requested with respect to the disposition of the accounts in question. Even though the sworn amended inventory and appraisal was at variance with the husband’s original inventory and appraisal and with previous evidence given, no objection was made to the procedure when it was apparent that the court would consider the amended instrument along with other evidence, and the trial court was entitled to determine whether the listing in the sworn amended inventory and appraisal was a proper characterization and valuation of the property in question. Even if the characterization of the accounts were as contended in the wife’s brief, the trial court, in its sound discretion, was empowered to make such division or disposition of the property as it deemed just and fair to the parties. When considered in conjunction with the overall division of the property of the parties, there was no abuse of discretion in the designation and awarding of the bank accounts. The wife’s cross-point number 3 is overruled.

In view of the foregoing, we find no reversible errors presented by the respective points and cross-points presented by the parties. Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: YOUNG, Justice. NYE, Chief Justice

license: Public Domain

text:
    ACADEMY WELDING, Appellant, v. Roy W. CARNES, Appellee.
    No. 1041.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 8, 1976.

      Zollie Carl Steakley, Bowmer, Courtney, Burleson & Pemberton, Temple, for appellant.
    Daniel M. Francis, F. Ben Selman, Jr., Jones, Francis & Youts, Inc., Waco, for appellee.
   OPINION

YOUNG, Justice.

This is a venue case. Roy W. Carnes sued City Utilities Company and the City of Gonzales, Texas, for damages from personal injuries sustained on July 27, 1973. He alleged that while he was working on electrical cables in place on utility poles, he contacted power lines left on the poles in a negligent manner by the defendants; that the defendants’ negligence caused his injuries. Thereafter, in his first amended original petition, the plaintiff named Halline Utility Equipment Company and Academy Welding as additional defendants.

Then Academy Welding filed a plea of privilege seeking transfer of the case to Bell County, its county of residence. The plaintiff, in his controverting affidavit, invoked the exceptions of Subdivisions 4 and 29a of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). The only evidence at the hearing, August 21, 1975, came from a deposition'of the plaintiff and a deposition of a hospital records custodian. The trial court overruled the defendant Academy’s plea and that defendant appeals.

The appellant attacks the trial court’s order overruling the plea of privilege in ten points of error. The first and second points deal with the trial court’s overruling of the appellant’s objection to the introduction of the appellant’s deposition into. evidence at the plea of privilege hearing. The remaining points relate to the sufficiency of the evidence there produced.

We will discuss the deposition problem first. In that regard, the essential facts are these:

1. Appellee filed this suit July 29, 1974, naming only the City of Gonzales and the City Utilities Company as defendants.
2. The deposition of appellee Carnes was taken January 9, 1975; certified March 5, 1975; and filed of record March 14, 1975.
3. The appellant, in an amended petition, was first named as a defendant June 3, 1975; was served June 6, 1975; and answered by plea of privilege June 25, 1975.
4. The plea of privilege hearing was begun and completed August 21, 1975, and the order overruling the plea was signed and entered August 28, 1975.

From the foregoing it is clear that the deposition evidence which was admitted was taken before appellant was made a party to this suit and without notice to the appellant. This was pointed out to the trial court in the appellant’s objection which was overruled.

The general rule is that depositions are inadmissible in evidence against one not a party to the suit at the time the deposition was taken. Dalsheimer v. Morris, 8 Tex.Civ.App. 268, 28 S.W. 240 (1894, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex.Civ.App.—Texarkana 1960, writ ref’d n. r. e.). This rule also applies in venue cases. Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.—Corpus Christi 1971, no writ).

Appellee recognizes this general rule, but he contends the appellant has waived the right to complain of the trial court’s action in admitting into evidence appellee’s deposition. This contention is based upon the tender by appellee’s attorney of the deponent for cross-examination and his offer not to resist a continuance, if requested, by the appellant. The tender was obviously for sometime later because the record does not reflect that Mr. Carnes, the deponent, was even present at the plea of privilege hearing. After that tender and offer, the trial judge indicated that he would grant a continuance to the appellant if the appellant were going to take the deposition of Carnes in the “immediate future”. The appellant’s attorney neither specifically declined nor accepted the tender and offers, but apparently elected to stand on his objection. Even so, the appellee proceeded with the introduction of the questioned deposition evidence.

This brings us back to other appropriate general rules. The courts in Texas have consistently held that a person’s right to be sued in the county of his residence is a valuable right and should never be denied except upon clear and convincing proof that the alleged cause of action comes within an exception to the venue statute. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943); Stanley v. Savage, 489 S.W.2d 461 (Tex.Civ.App.—Corpus Christi 1972, no writ). The plaintiff has the burden to allege and prove the facts he relies upon to bring his case within an exception to the general rule. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); Stanley v. Savage, supra; Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Because the burden was on appellee to prove the necessary facts to sustain a venue exception, the burden was upon him to attempt to do so by admissible evidence. His attorney could have obviated the objection to the deposition by putting the appellee on the witness stand at the plea of privilege hearing and there could have elicited his testimony about the venue facts of this case. In that instance opportunity for cross-examination would have been afforded the appellant without the necessity of a continuance. And if plaintiff Carnes was not available to take the stand, the burden was on the appellee to request a continuance, not the appellant, for the purpose of later tendering Carnes for examination by the appellant.

Appellee further argues that the deposition was on file several months after the appellant was made a party to this suit and before the plea of privilege hearing; that appellant, therefore, had ample time to take the deposition of Carnes. The answer to that contention is that if the appellee desired to introduce at a hearing or trial admissible evidence by deposition against the appellant, then the burden was on the appellee, after the appellant was joined as a defendant, to retake the deposition in compliance with Rules 186 through 215c, T.R. C.P. We are not here holding that the right of cross-examination of a deponent can never be waived by a party joined in a suit after the deposition has been taken. We are holding that under the facts of this case the right has not been waived. Appellant’s first and second points are sustained.

Because we have held that the deposition of appellee Carnes was inadmissible as evidence at the plea of privilege hearing and because that was the only evidence tendered on the issue of liability, there is no evidence for us to review regarding appellant’s remaining points. Therefore appellant’s points three through ten are all sustained.

The judgment of the trial court is reversed and judgment here rendered that this case, as to Academy Welding only, be transferred to one of the district courts of Bell County, Texas.

NYE, Chief Justice

(dissenting).

I respectfully dissent. This case presents the very narrow question as to whether the appellant waived his right to cross-examine a deposition witness.

This Court, in Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.—Corpus Christi 1971, no writ), held that as a general rule, deposition evidence is inadmissible in evidence against one not a party to the suit at the time the deposition was taken. While I still agree with such general rule, I believe that such a rule is not absolute and not without exceptions. The Heldt Bros. case is not in point. The rationale behind the general rule is based on the supposition that the adverse party (here Academy Welding) must be afforded an opportunity to cross-examine the deposed witness and absence such an opportunity such evidence does not constitute legally admissible evidence or proof of any fact against such party. See Heldt Bros. Trucks v. Silva, supra; 20 Tex.Jur.2d, Depositions, § 72, p. 27. See also Dalsheimer v. Morris, 28 S.W. 240 (Tex.Civ.App.—1894, no writ); St. Louis Southwestern Ry. Co. of Texas v. Woldert Grocery Co., 144 S.W. 1194 (Tex.Civ.App.—Texarkana 1912, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex.Civ.App.—Texarkana 1960, writ ref’d n. r. e.).

In each of the above cases cited by the majority, the offending characteristic of the , questioned evidence was the absence of an opportunity to cross-examine the witness. As we stated in the Heldt case:

“The right to cross-examination of witnesses by a party in a lawsuit is a valuable and substantial right, and it cannot be denied in the instant case but that the circumstances have, in effect, denied that right to appellants in respect to a material matter that has vitally affected them. They, through no fault of their own, have not been accorded an opportunity to exercise such right, in accordance with the rules governing cross-examination generally.” (Emphasis supplied.)

It is, therefore, the absence of the opportunity to cross-examine which causes such evidence to take on the characteristics of hearsay evidence, which absent some exception, is legally inadmissible. It follows that once such opportunity to exercise such right of cross-examination is afforded the complaining party, irregardless of whether the opportunity is exercised, the reasons for excluding such evidence are no longer present. The right to cross-examine any witness may be waived.

The principle, which is usually recognized by modern jurisdictions, does not necessarily require that there be an actual cross-examination, but only that the adverse party have an opportunity to exercise such right. This, of course, must be in accordance with the rules governing the right of cross-examination generally. 4 A.L.R.3d Depositions— Admission in Evidence p. 1079.

The record before us shows that Carnes’ deposition was taken on January 9, 1975, and filed of record on March 14, 1975. Academy Welding was named as a defendant on June 3, 1975. Academy was served with process on June 6, 1975, and made its first appearance (by answer) on June 25, 1975. Carnes’ deposition was taken prior to the appellant being made a party to this lawsuit. From the time Academy Welding became a party (June 6,1975) to the time of the plea of privilege hearing (August 21, 1975), a period of approximately 76 days had elapsed within which said deposition had been on file. Academy, therefore, had full opportunity to examine Carnes’ deposition in the file and to decide whether they would again depose him upon oral examination as they may have considered necessary or desirable in order to fully protect their interest in the case. There is no evidence that Academy decided that it would be necessary to depose Mr. Carnes.

The plea of privilege hearing began on August 21, 1975, at which time both parties were present, appeared and announced ready to proceed. At the plea of privilege hearing, Carnes’ attorney offered into evidence the testimony of plaintiff, Roy W. Carnes, as contained in his deposition. Academy’s attorney objected and for his grounds stated the following:

“MR. STEAKLEY: Your Honor, I will object to the introduction of this testimony from the deposition because that deposition was taken at a time before we were made a party to this lawsuit; and, therefore, it is hear say as to us. We did not have the right of cross examination at that deposition.
The record will reflect we were not brought into this lawsuit until sometime in the latter part of June of this year, and that deposition was taken before that time. Therefore, it is clearly hearsay, and is not binding on us and not adissible as to us.”

Opposing counsel then stated:

“If Mr. Steakley would like an opportunity to take the deposition of Mr. Carnes, we will be happy to submit him for his examination. If he would like a continuance of this hearing until he has had time to take a deposition, we have no objections to that.” (Emphasis supplied.)

There could be no more asked of opposing counsel than that which was here offered. The opportunity to take Carnes’ deposition and a continuance for that purpose. The following conversation then took place between the Court and appellant’s attorney: (Questions to appellant’s attorney)

“THE COURT: Now, do you want to depose Mr. Carnes?
MR. STEAKLEY: Yes, Your Honor. I will object to them using his testimony at this time. If it becomes necessary for us to later, or if the Court grants a continuance, I am sure we will want to depose Mr. Carnes, or enter some agreement later on.
THE COURT: I will grant a continuance if you are going to take his deposition in the immediate future.
MR. STEAKLEY: As far as I know, there are no plans right now to take his deposition.
THE COURT: Tell the Court whether you are going to or not. If you are not going to take it, I don’t think you have much objection. If you are really going to take it, tell the Court and we will proceed on that.
MR. STEAKLEY: Your Honor, I frankly don’t know. I haven’t had a chance to—
THE COURT: You have got to jump one way or the other, see. If your objection is really that you haven’t had a chance to depose the man; fine, I will grant you a continuance. But, I don’t want to grant a continuance if you are not going to do it. You are not going to tell the Court that you object to it, then not going to take the deposition?
MR. STEAKLEY: No, I am not. But, my objection, Your Honor, is that we have not had a chance—
THE COURT: Tell me what you are going to do.
MR. STEAKLEY: The problem is maybe, and I don’t know, because I just started, looked over the file starting yesterday. It may be that we can later enter some agreement after studying the deposition that we will allow — That we will not raise this objection. But, at this time, we have not entered into that agreement, and it may not be necessary to take a deposition. So, I don’t represent to the Court something I don’t know at this particular time. I just frankly don’t know.
THE COURT: Well, if you have no plans and are not even planning on it, and don’t think you will take Mr. Carnes’ deposition, of course, we will go on and proceed here this morning; but, we are not going to cut you out; if you are going to do it, fine, we will give you time.
MR. STEAKLEY: Then, for the time being, I would request that we have the time to do it.
THE COURT: You are telling the Court that you are going to take Mr. Carnes’ deposition?
MR. STEAKLEY: No, sir; Your Honor.
THE COURT: Then, your objection is overruled.”

The majority states that they are not holding that the right of cross-examination of a deponent can never be waived by a party joined in a suit after the deposition has been taken, but that under the facts of this case the right has not been waived. I disagree as to the latter.

The above dialogue between the Court and Academy’s attorney clearly demonstrates that the opportunity to cross-examine was offered and refused.

The opportunity given to the appellant to cross-examine the witness by both the opposing attorney and the Court, together With the failure of Academy to exercise such opportunity, plus Academy’s inaction for over two months while the Carnes’ deposition was on file, clearly shows a basis for waiver by the appellant. The trial court must make that determination when making its ruling at the time the evidence was offered. On appeal, the question then before the appellate court, is whether the trial court abused its discretion in refusing to permit the appellant to cross-examine the witness. This necessarily becomes a law question. In determining whether the trial court abused its discretion, we must view the facts and circumstances surrounding its ruling. The basis for excluding the evidence (deposition) is the lack of an opportunity to cross-examine the adverse party.

Here, the opportunity to cross-examine Carnes was offered by both opposing counsel and by the court. The opportunity was not accepted. Since the opportunity was present, the basis for exclusion was no longer present, therefore, there was no bar to the admissibility of the evidence.

The test for determining the propriety of the trial court’s decision (as to whether to admit into evidence the deposition testimony) is whether the trial court abused its discretion in doing so. Considering all the circumstances, I would hold that the trial court did not abuse its discretion in overruling appellant’s objection to the introduction of the deposition testimony. I would hold that as a matter of law that the appellant waived the right to cross-examine the witness.

      . In the Heldt case, this was not so. “The depositions were not on file when appellants made their appearance in the suit and there is nothing in the record that indicates that appellants knew about them until May 7, 1970, when they were filed in the trial court; therefore, appellants cannot be charged with notice of the outstanding depositions at the time of making their appearance in the case.” Heldt Bros. Trucks v. Silva, 464 S.W.2d 931, at pp. 936-937.


author: NYE, Chief Justice.

text:
    Fred GALINDO, Appellant, v. The STATE of Texas, Appellee.
    No. 1022.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 8, 1976.
    Rehearing Denied April 29, 1976.

      Lee Arnett, Brownsville, for appellant.
    Davis Grant, Austin, for appellee.
   OPINION

NYE, Chief Justice.

This is a disbarment action. The State of Texas, acting through the Grievance Committee for District 12-B, instituted this disbarment suit against Fre.d Galindo in the District Court of Cameron County. The case was tried to a jury. Based on the findings of the jury, the trial court entered its order suspending Galindo for the period of one year. The defendant has appealed from the trial court’s judgment.

This disbarment suit was tried to a jury which found that the defendant had engaged in professional misconduct by misapplying and commingling funds belonging to a client and by misstating facts under oath to the Grievance Committee.

The jury found that the defendant received the money belonging to the doctor and the hospital and misapplied the sum willfully; that the defendant commingled the funds belonging to the client with his own private funds and that such was done willfully and without the knowledge and consent of the client. The jury further found that the defendant misstated facts to the Grievance Committee concerning funds belonging to him delivered in trust; that the defendant was under oath at the time that such misstatements were made and that such constituted dishonorable conduct.

Defendant has perfected his appeal in this cause and presents to us twenty-five points of error. These points will be grouped under two main headings, those being the Claire Count and the Count alleging misstatements made by defendant.

Defendant first asserts that the trial court lacked jurisdiction over this cause because no “complaint” was filed with the Grievance Committee in conformity with Section 7, Article XII, State Bar Rules in connection with any count of misconduct alleged in the formal complaint filed in court, and the absence of such a complaint the defendant was denied due process of law.

Defendant raises two questions, namely: 1) is a written complaint a prerequisite to the Grievance Committee’s initiating their investigation and in filing a formal complaint; and 2) was defendant’s procedural due process rights violated by the absence of such complaint.

In 1939, the Legislature enacted the State Bar Act, Article 320a-l, Tex.Rev.Civ. StatAnn., which had for its purpose the regulation of the practice of law. The act was designed to protect the public by eliminating from the legal profession those attorneys morally unfit to enjoy its privileges. Phagan v. State, 509 S.W.2d 703 (Tex.Civ. App.—Fort Worth 1974, writ ref’d n. r. e.); State v. Dancer, 391 S.W.2d 504 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.); Hexter Title & Abstract Co. v. Griev ance Committee, Fifth Congressional Dist., State Bar of Texas, 179 S.W.2d 946 (Tex.Sup.1944). When misconduct on the part of an attorney is alleged to have occurred, the Grievance Committee has the task to conduct an investigation. The Grievance Com mittee is an administrative agency of the judicial branch of our government. It functions as an arm of the Supreme Court in the discharge of its professional policing duties. State v. Sewell, 487 S.W.2d 716 (Tex.Sup.1972). Before a determination as to whether a written complaint is mandatory under the State Bar Rules, Art. XII § 7-16 (1973), these rules must be reviewed.

Section 7 (of the State Bar Rules) distinguishes a “complaint” from a “Formal Complaint”. The term “complaint” shall embrace all complaints brought before a Grievance Committee, whether verbally or in writing. A “Formal Complaint” is the pleading by which disciplinary action is instituted by a Grievance Committee in a District Court.

Section 10 provides that no member shall be reprimanded, suspended, or disbarred for misconduct occurring more than four years prior to the time of filing of a complaint with the Grievance Committee. Section 10 further provides “that the complaint shall be considered as filed when made in writing to the Committee or any member thereof.”

Section 11 entitled “Filing of Complaints” states that it shall be the duty of each District Grievance Committee and its members to receive complaints of professional misconduct, alleged to have been committed by an attorney. Section 11 further provides that each Committee member shall report to his committee any case of professional misconduct which shall come or be brought to his attention and that the committee may, in any case, require a sworn statement setting forth the matter complained of as a condition to taking further action.

Section 12 provides that the Committee shall make such investigations of each complaint as it may deem appropriate and where the complaint appears to be of such nature as it will not call for disciplinary action and can probably be dismissed without the necessity of hearing the accused attorney, the Committee need not notify him of the filing of the complaint.

At the conclusion of its investigation, the Committee shall take such action on the complaint in one of the ways provided by Section 16. If the Committee is of the opinion that no disciplinary action is warranted, it shall dismiss the complaint and notify the complainant and the accused attorney. In a ease where the accused has had notice of the complaint and an opportunity to be heard, and the Committee decides that the attorney should be reprimanded, such reprimand shall be reduced to writing and delivered to the attorney personally or by mail. In this regard, if the attorney accepts such reprimand, the reprimand becomes final and a copy thereof, together with a copy of the complaint, shall be mailed to the Clerk of the Supreme Court and Secretary of the State Bar. If, after such investigation, the Committee should be of the opinion that the license of the accused should be revoked or suspended for a period not to exceed three years, and if the Committee shall have reason to believe that the accused will accept its action as final, the Committee shall prepare a form of judgment and submit the same to the attorney. If the attorney agrees to the action of the Committee, copies of the judgment, together with copies of the complaint shall be mailed to the Secretary of the State Bar, Clerk of the Supreme Court, and the Clerk of the District Court. If the attorney does not agree to such judgment, the Committee shall direct procedure by “formal complaint” in the district court.

The above rules must be construed in such a way, as not only to vest in the various Grievance Committees the proper authority to carry out the purpose of the rules, but such rules must also be construed so as to protect the members of the legal profession against unwarranted prosecution, harassment or other abuses of power. The Legislature clearly intended that in a case where the Grievance Committee was of the opinion that action against the attorney was warranted (other than dismissal of the complaint), the attorney should have adequate written notice of the complaint and a reasonable opportunity to defend himself before the Committee. This reasonable opportunity to defend himself before the Committee upon grievances against the attorney is procedural due process. Notice must be given to the attorney of charges made and an opportunity afforded him for explanation and defense. At this early stage, the complaint can be made orally to the Committee and the notice to the attorney can be informal. However, the better rule would be that after a complaint has been received verbally by the Grievance Committee from a complaining witness or from a member thereof, the complaint should then be reduced to writing so that the accused can become fully aware of the extent of the charges. This procedure would find harmony in the rules that require copies of the complaints to be mailed to the Secretary of the State Bar and the Clerk of the Supreme Court.

The Grievance Committee admitted that no written complaint as such, had ever been filed. Therefore, it is clear that the Grievance Committee did not comply with the State Bar Rules in its failure to reduce to writing those allegations asserted against the defendant. In absence of such a complaint, the question still remains as to whether this failure denied defendant his right of procedural due process.

Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication, be preceded by notice and opportunity for hearing, appropriate to the nature of the case. In re Armstrong’s Adoption, 394 S.W.2d 552 (Tex.Civ.App.—El Paso 1965, no writ).

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice, reasonably calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Armstrong v. Manzo, 380 U. S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (and cases cited therein); H_P. F_ v. B_D_P_, 479 S.W.2d 124 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.). In this connection, the defendant testified that he received a telephone call to appear before the Committee. He testified concerning such notice as follows:

“Q Now, on both of those occasions (July 20, 1973 and February 15, 1973 meetings), isn’t it true that you were fully aware of the nature of the interrogation that was going to take place in that meeting, the interrogation of you, and you were prepared to testify concerning the Concepcion Claire matter on both occasions?
A Yes, I think so.”

The Honorable Gary R. Gurwitz, a distinguished member of the Grievance Committee, testified that the defendant was apprised of the nature of the complaint about which he was going to be interrogated on that occasion (July 20, 1973). Although it appears that defendant did not receive actual written notice in the form of written complaint, the record shows that he had been fully apprised of the charges and was fully prepared to testify in his defense. In fact, he brought his former clients as witnesses to the first meeting (July 20, 1973). It, therefore, appears that the defendant received notice reasonably calculated, under all circumstances, to apprise him of the charges and afford him an opportunity to present his objections.

The other fundamental requirement of due process is “the opportunity to be heard”. Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363; Armstrong v. Manzo, supra. It is an opportunity which must be granted at a meaningful time and in a meaningful manner. The defendant makes no complaint as to this requirement, in that two hearings were conducted (July 20, 1973 and February 15, 1973) with defendant having the opportunity at each to present evidence witnesses in his defense. This Court finds no substance to the claim that defendant was denied procedural due process in the hearing before the Grievance Committee. Defendant had adequate knowledge of what acts he was accused of committing. Further, it is clear that the charges were brought against defendant by the Grievance Committee itself and no one other than the Grievance Committee had accused defendant of any professional misconduct. We take note that the Grievance Committee’s proceedings do not accord finality in that such action taken by the Committee, whether it be a recommendation of a reprimand, suspension, or disbarment, can always be brought before a district court for a final determination of the merits of the complaints. See State v. Sewell, 487 S.W.2d 716 (Tex.Sup.1972). Although we believe that the Grievance Committees in the future should file written complaints and serve the same on the attorneys that are to appear before their Committee, we hold that the claim of denial of due process as to this defendant is without merit in this case. Defendant’s points of error 1 and 2 are overruled.

The defendant in his points of error numbers 3, 4 and 5 asserts that the trial court lacked jurisdiction because the Grievance Committee did not act in conformity with Section 16(d) of the State Bar Rules and such failure denied the defendant his rights of due process. More specifically, he asserts that there was no evidence that the Committee, acting as a Committee, authorized the Honorable Morgan K. Talbot or any other person or group to file the formal complaint in the district court.

Section 16 of the State Bar Rules authorizes the Grievance Committee, after its investigation, to “. . . direct procedure by Formal Complaint as hereinafter set forth.” The action by formal complaint is taken when the accused attorney will not accept the Committee’s recommendations of a reprimand, suspension or revocation of the attorney’s license. Section 23 of the Rules provides that the Committee may appoint counsel for the prosecution of disciplinary action. There is no requirement that the Committee (as a whole) draft the Formal Complaint, but only that the Committee shall direct procedures by Formal Complaint.

According to the Grievance Committee’s minutes of the meeting held May 30, 1973, it was decided that defendant should be suspended, although the length of such suspension was to be determined at a later date. It was agreed that the Chairman of the Committee, the Honorable Morgan K. Talbot, should contact the defendant and advise him of the decision of the Committee (suspension) and determine whether defendant would be agreeable to such a suspension. The minutes further reflect that if the defendant would not agree to any suspension, such fact was to be reported to the Committee and the matter would be turned over to the prosecuting committee. In the present ease, Chairman Talbot advised the defendant of the Committee’s decision whereby defendant refused to accept a suspension. Chairman Talbot testified that when he determined that the defendant would not accept the suspension, he (Talbot) was simply told to go ahead and proceed. We hold that the Grievance Committee did direct procedure by formal complaint in conformity with Section 16(d) and the defendant was not denied due process of law. Points of error Numbers 3, 4 and 5 are overruled.

Defendant in his points of error No. 8 and 9 asserts that the misconduct alleged in counts one and two are barred by the provision of Section 10, State Bar Rules. Section 10, the Limitation Section, reads in part as follows:

“. . . no member shall be reprimanded, suspended, or disbarred for misconduct occurring more than four years prior to the time of filing of a complaint with the Grievance Committee; . . . The complaint shall be considered as filed when made in writing to the Committee or any member thereof.” (Emphasis added.)

It appears that a complaint may be filed in one of two ways. Section 7, State Bar Rules, in defining the term “complaint” states it “shall embrace all complaints brought before a Grievance Committee, whether verbally or in writing ”. (Emphasis added.) Section 11 entitled Complaints, Filing of, states:

“It shall be the duty of each District Grievance Committee and its members to receive complaints of professional misconduct, alleged to have been committed by an attorney within the district, or by an attorney having his office or residence therein; and each committee member shall report to his committee any case of professional misconduct which shall come or be brought to his attention. The committee may, in any case, require a sworn statement setting forth the matter complained of as a condition to taking further action.” (Emphasis added.)

The record shows that defendant deposited his clients’ funds in his partnership account on July 16, 1970, and did not pay the doctor or hospital bills until September 1972. The Grievance Committee became aware of this matter upon hearing testimony during a trial where this defendant was prosecuted for embezzlement. The Grievance Committee then started taking action on this case as early as July 20, 1973, well within the four year period from the date of the alleged misconduct. Again, had the Committee served a written complaint on the defendant, the limitations question would have been moot. Nevertheless, defendant’s points of error 8 and 9 are overruled.

Next, the defendant in his points of error 10 through 13 asserts that there is no evidence or insufficient evidence to support the findings of the jury on special issues No. 2 and 3. The jury found in answer to such issues that the defendant had willfully misapplied unto himself the sum of $361.00. In deciding a no evidence point, an appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.Sup.1951). In deciding an insufficient evidence point, the appellate court is re- * quired to consider all of the evidence. Garza v. Alviar, supra; In re King's Estate, supra.

The record reflects that on July 15, 1970, defendant received two insurance drafts that were made payable to Mr. and Mrs. Claire and the defendant. The drafts totaled $1,778.41. Defendant notified the Claires of the same and they came to his office. Defendant then wrote two checks on the partnership account. The first check was made payable to the Claires in the amount of $715.00 as their share of the settlement. The second check was made payable to Tip-Tex Chevrolet for repairs of the Claires’ automobile in the sum of $309.50. The Claires and the defendant then endorsed the two insurance drafts. These drafts were then deposited by the defendant on July 16, 1970, in his partnership account. Mrs. Claire requested the defendant to keep the balance of the drafts ($361.00) over the defendant’s fees and pay her doctor and hospital bills which she had incurred. The defendant agreed.

The trust funds remained in the partnership account and the bills remained unpaid until September 1972, when Mrs. Claire contacted the defendant inquiring why such bills had not been paid. The defendant requested that Mrs. Claire come by his office and pick up the checks for payment of these bills. The defendant admitted that many times during this two year period the account was low and on several occasions there was perhaps not enough money in the partnership account to cover the total amount of funds that had been previously left there by Mr. and Mrs. Claire on July 15, 1972. The defendant also admitted that many times during the two year period from July 15, 1970, to September 1972, he withdrew funds from the partnership account for his own use and benefit and on behalf of other clients other than the Claires.

The defendant, however, contends that there is no evidence that the defendant wrote any checks that drew the account balance below the $361.00 balance that was needed to cover the bills due the doctor and hospital and, therefore, there was no evidence that he “misapplied the $361.00 unto himself”. We agree. We are unable to find any evidence in the record that defendant misapplied any portion of the $361.00 that he put in the partnership account for his own use and benefit. These points of error are sustained.

Defendant in his points of error 14-19 asserts that the evidence is legally and factually insufficient to support the jury findings on Special Issues 4, 5 and 6. The jury found in answer to Special Issues 4-6 that on July 13,1970, defendant willfully commingled funds belonging to Concepcion Claire with his own private funds, without the knowledge and consent of Concepcion Claire. Using the rules set out above concerning no evidence and insufficient evidence points, we find that there was ample evidence to support the jury’s findings. These points of error are overruled.

The defendant in his points of error No. 6 and 7 asserts that the absence of fair notice as to the Grievance Committee- procedure and the precise nature of the charges in connection with counts five and six and the failure to furnish the' defendant a transcript of the exact question and answer made the basis of said counts denied this defendant his rights of due process. Counts five and six read as follows:

“Count Five
That Defendant upon being examined by the Grievance Committee for District 12-B concerning misapplication of funds delivered to him in trust, misstated, under oath, the facts regarding said matters. Such conduct on the part of Defendant constitutes dishonorable conduct for which said Defendant should be, by this Honorable Court, disbarred.
Count Six
It is herein alleged, and Plaintiff would show the Court that the conduct of Defendant in misstating facts to the Grievance Committee for District 12-B is a violation of the Canons of Ethics of the State Bar of Texas and the Code of Professional Responsibility.”

The record reflects that on August 2, 1972, a meeting was called by the Grievance Committee for the purpose of considering complaints filed against the defendant by Daniel Lucio and by the California Rural Legal Aid on behalf of Felipe Cantu. Prior to the commencement of the meeting, defendant was sworn in. The Cantu matter involved a complaint much like the Claire matter wherein a complaint was received from Mr. Felipe Cantu in regards to some medical bills incurred by Mr. Cantu in 1969 and for which the defendant had allegedly retained funds to pay, but had not paid them. Defendant was thereafter requested to make immediate payment and to verify the same to the Committee.

After answering questions concerning the Cantu matter, the defendant was then asked generally whether or not he had any other similar matters pending, matters similar to the Cantu case, which involved receiving money. Although the record shows a variation as to the exact form of the question, the record conclusively shows that the substance of the question was whether defendant had any other similar matters to the Cantu matter pending. The defendant replied in effect that there were not any others, the Cantu matter was the only one.

The defendant argues that before any inquiry could be made by the Committee, they had to give the defendant adequate notice that he might be questioned about other matters similar to the Cantu matter and that any misstatements by him concerning such facts, might constitute a disbarment offense. This point is without merit.

The proceeding before the Grievance Committee is not an adversary process. The Grievance Committee is an investigating body. Smith v. Grievance Committee, State Bar of Texas for District 14-A, 475 S.W.2d 396 (Tex.Civ.App. — Corpus Christi 1972, no writ). The aim of its inquiry is to collect and assemble facts and information that will enable the Committee to take such future action as it may deem expedient for the public welfare. The Grievance Committee is not designed or equipped by the rules and regulations of the State Bar Act to conduct a trial. The adversary process and petitioner’s day in court is commenced by the filing of the “formal complaint” as provided by the Texas Bar Act. Although the Committee operates informally as it did, it should examine the defendant under oath. The defendant, as an attorney, is required to give accurate and honest information to the questions from the Committee. The attorney’s failure to conduct himself honorably before the Committee, will be grounds in and of itself for disciplinary action.

Defendant relies on the case of In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1122, 20 L.Ed.2d 117 (1968) in support of his contention that formal notice is required in all particulars. In Ruffalo, the proceedings being attacked were the actual disbarment proceedings by the Ohio Board of Commissioners on Grievances and Discipline. Such Board was the investigating body as well as the fact finder and determiner of punishment. There, the attorney’s interrogation was in the nature of testimony at a trial and was being heard and evaluated by those who were to pass judgment. Those due process rights denied in Ruffalo were guaranteed to appellant in the “formal proceeding” before the district court in this case.

In regard to defendant’s complaint concerning the plaintiff’s failure to furnish a transcript of the exact questions and answers, defendant relies on several cases involving criminal indictments, for the proposition that defendant is entitled to know the exact form of the question and answer made the basis of counts five and six. Higgins v. State, 50 Tex.Cr. 433, 97 S.W 1054 (1906); Brown v. State, 40 Tex.Cr. 48, 48 S.W. 169 (1898). It is noted that the Grievance Committee proceedings should not and are not governed by criminal standards. See Smith v. State, 523 S.W.2d 1 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). This point is without merit.

The defendant in his last point of error asserts that the trial court erred in signing the judgment in El Paso. The defendant was tried in the county of his residence, that being Cameron County and judgment was rendered on April 21,1975, in Cameron County, Texas. The judgment was signed May 2, 1975, by the presiding judge, the Honorable George Rodriguez. The defendant asserts that the trial judge signed such judgment in El Paso, thereby abrogating defendant’s right of trial in the county of his residence. The trial took place in Cameron County, the jury returned its verdict in Cameron County, and the trial court rendered judgment in Cameron County. It cannot then be said that the defendant’s right of trial by jury in the county of his residence was abrogated by the fact that the judge signed the judgment in El Paso, since such signing was merely clerical action on the judge’s part. See Leatherwood v. Holland, 375 S.W.2d 517 (Tex.Civ. App.—Fort Worth 1964, writ ref’d n. r. e.). All of the defendant’s points of error, except 10 through 13, have been considered and are overruled.

In view of our holding, sustaining defendant’s points of error 10 through 13, we must now make a determination of the proper disposition of this appeal. The trial court set punishment at a one year suspension, presumably on all three counts. We have no way of knowing whether the judgment was for one year suspension on each of the three counts to run concurrently or for one third of a year on each count to run consecutively or some other combination. The trial court failed to segregate the weight to be given to each of the jury’s three findings of professional misconduct of misapplication; commingling and misstatements. We, therefore, have no way of knowing what influence the finding of guilty on Count 1 may have had upon the mind of the trial court. See Smith v. State, 490 S.W.2d 902 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

In the case at bar, we believe that the evidence of the false statement made to the Grievance Committee under oath is such dishonorable conduct as would of itself warrant a one year suspension. In affirming the trial court’s judgment that the defendant Fred Galindo was guilty of willful and dishonorable acts amounting to professional misconduct, we believe that a one year suspension on the findings of the jury (that Galindo had made a misstatement and had commingled the funds of his client with those of his own) was proper. The imposition by the trial court of a one year suspension from the practice of law on these two counts would not be an abuse of discretion as would require a reversal and remand of the entire case. Rule 434, T.R.C.P.; Smith v. State, supra.

In the future, it would be proper for the trial judges in disbarment cases to segregate the amount of punishment corresponding to each act of misconduct. If, as in the case at bar, it is determined by the appellate court that the evidence does not support one or more of the counts or that reversible error occurred as to one or more counts, the appeals court could then look to the punishment assessed by the trial court on those counts which could be affirmed and could then determine the question of abuse of discretion and the necessity vel non of a reversal and retrial.

The judgment of the trial court is AFFIRMED.


author: BREWSTER, Justice.

text:
    Mike QUALLS, Appellant, v. GRAHAM GENERAL HOSPITAL, Appellee.
    No. 17710.
    Court of Civil Appeals of Texas, Fort Worth.
    April 9, 1976.

      Nagle, Taylor & Ewing and A1 Taylor, Houston, for appellant.
    Jennings, Montgomery & Dies, Graham and Whitten, Sprain, Price, Wagner & Edwards and Marvin S. Sprain, Abilene, for appellee.
   OPINION

BREWSTER, Justice.

This suit for damages for personal injuries was filed by Mike Qualls, plaintiff, against Graham General Hospital and Dr. Frank Harmon, defendants. Plaintiff contended that the defendants committed acts of negligence during the course of an operation to reduce and plate a fracture to his leg which negligence proximately caused a non-union of the broken tibia in his leg and that this non-union resulted in injuries and damages to plaintiff. Before trial the plaintiff’s suit against Dr. Harmon was settled and plaintiff’s suit against the doctor was dismissed. When that settlement was made the defendant, Hospital, then filed a cross-action against Dr. Harmon for contribution and indemnity on the grounds that he was a joint tort feasor.

A jury trial ended with the trial court rendering judgment to the effect that plaintiff take nothing by his suit against the Hospital and that the Hospital take nothing by virtue of its plea over and cross-action against Dr. Frank Harmon.

This appeal is brought by the plaintiff, Qualls, from that decree.

We affirm.

Plaintiff’s first point of error was that the trial court erred in overruling plaintiff’s motion for new trial because the negative answer of the jury to Special Issue No. 1 is against the great and overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

In plaintiff’s second point of error he makes the identical contention as to the jury’s answer to Special Issue No. 7.

We overrule plaintiff’s first and second points of error.

The duty of a Court of Civil Appeals in passing on the question of whether or not a jury finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust is set out in the case of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) as follows: “It is not infrequently described as a question of ‘sufficiency’ of the evidence. See Hall Music Co. v. Robinson, 117 Tex. 261, 1 S.W.2d 857; Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166. The question requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil Procedure Nos. 451, 453, and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust — this, regardless of whether the record contains some ‘evidence of probative force’ in support of the verdict. See cases cited, supra. The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.”

In reaching the decision that we have as to plaintiff’s first two points of error we have considered and weighed all of the evidence in the case.

The following facts were undisputed: on November 14, 1971, plaintiff was riding a bareback rodeo horse when the horse crashed into a fence; plaintiff’s right leg was between the horse and the fence and his leg was broken below the knee; the tibia and fibula bones in that leg were both broken; he was taken to the Graham General Hospital where Dr. Frank Harmon performed an open reduction operation to set the bones; he made an incision, fitted the bones back together and used a small metal plate and screws to hold the bone fragments in place; the plate was made of a metal known as vitallium and so was one of the 5 screws used to screw the metal onto the broken bones; the other 4 screws used for that purpose were made of stainless steel; when this operation was scheduled the hospital brought an orthopedic rack or tent into the operating room which contained plates and screws, some being made of vitallium and some of stainless steel; these screws were only separated according to length and were not separated according to metals; when the surgeon would drill a hole in the bone he would measure the hole and call for a screw of the desired length; the nurse would then hand him such a screw inserted into a screw driver ready to be screwed into the bone; thereafter the fibula bone knitted but the tibia did not; four different operations were necessary in treating the leg and trying to get the tibia to knit; the failure of the tibia to knit ended up causing plaintiff much pain, some disability and shortness of the right leg and other damages.

Special Issue No. 1 was: “Do you find from a preponderance of the evidence that the defendant hospital was negligent in having vitallium and stainless steel screws and plates mixed in the screw tent at the time of the operation in question?” The jury answered: “No.”

Issue No. 7 inquired: “Do you find from a preponderance of the evidence that the implanting of mixed metals in plaintiff’s leg was a proximate cause of injury and damage to the plaintiff?” The jury answered No. 7 “No.”

The jury found in answer to Issue No. 3 that at the time of the operation Dr. Harmon’s failure to observe and detect that different types of metal screws were being used to affix the plate to the fracture site was negligence and found in answer to Issue No. 4 that such negligence was not a proximate cause of the damages to plaintiff’s leg.

Patsy Parker, a nurse at defendant’s hospital, testified: vitallium and stainless steel screws look different; the screw tent is provided for the doctor by the hospital; it had both stainless steel and vitallium bars and screws on it for the operating doctor; vitallium screws have a “V” implanted on the head; generally the operating doctor is captain of the ship (the boss) and nurses are instructed to do as he asks; some doctors bring their own bars and screws; the screw tent is set up about three feet from the doctor in the operating room; the vitallium and stainless steel screws are not separated according to metal, but are according to size; and often doctors go to the screw tent while operating and pick what they wish from it.

Dr. Harmon testified: a fracture of the kind involved is inherently unstable; he installed in plaintiff’s leg the vitallium plate, one vitallium screw and four stainless steel screws; he was aware of a possible danger of mixing the metals; he did not notice that the screws used were of two different metals; he was unaware that the metal appliances on the tray were mixed; you can readily tell the difference in the two metals by their color; he released plaintiff on March 13, 1972, at which time he was having a normal recovery; a delay in union of a fracture, such as plaintiff had, can be caused by many factors other than a mixture of metals; soft tissue injuries and injury to the blood vessel supply to the bone can cause the delay in union; there will be a high percent of delayed unions and non-unions where the tibia is fractured in this area just in the natural course of things; there is a great difference of opinion as to whether mixing metals causes electrolysis.

The hospital administrator, C. G. Young, testified: the nurses and hospital staff knew of a possible danger in mixing the metals, but since the two types of metal are so easily identified they felt there was no need to separate them; and it is up to the surgeon to call for the proper appliance.

Dr. Richard Lambert, plaintiff’s medical expert testified: he practices in San Diego, California; he is an orthopedic surgeon; his opinions here are based on hospital records, office records and notes of Dr. Harmon and Dr. Donnell, x-rays and the plate and screws involved; he did not treat plaintiff and saw him for the first time on the evening before the trial; the doctor usually calls for what he wants during an operation; the following can cause or contribute to cause a delay or non-union of a fracture such as plaintiff had: (1) infection; (2) severity of the injury itself; (3) circulatory impairment; (4) soft tissue injury; (5) segmentation of the bone; (6) distraction (bone ends being pulled away); (7) excess motion at the fracture; (8) badly fitting cast; (9) electrolysis from mixture of metals; (10) age of patients, and (11) for unknown reasons sometimes such fractures are delayed or fail to heal; in his opinion the non-union of plaintiff’s tibia was caused from electrolysis due to the mixing of the metals.

Dr. Ralph Donnell testified: he started treating plaintiff on April 18,1972; he is an orthopedic surgeon; he operated on April 21, 1972, and removed the metal plate and screws; there was some discolored scar tissue at the fracture site; on October 18, 1972, he again operated and removed one inch of the fibula to try to get the tibia back together; vitallium plates and screws and stainless steel plates and screws are both acceptable to the medical profession; the hospital generally plays no part in the surgeon’s decision as to which type metal to use in an operation of this type; the plate in plaintiff’s leg had vitallium printed on it and the vitallium screw had a “V” stamped on the head of the screw; when he removed the plate he found one screw had been broken; his opinion is that it was broken by fatigue or strain and not due to electrolysis from mixing the metals; when both bones are broken the fibula usually heals first and this occurred in plaintiff’s case; his opinion is that when the fibula healed first it held apart and prevented proper healing of the tibia; in his opinion electrolysis from mixing the metals did not cause plaintiff’s troubles; in his opinion he would have had to perform all the operations he did perform on plaintiff regardless of the type of metals that were used by Dr. Harmon in reducing the fracture; the mixed metal was not the cause of the delay in the healing; plaintiff’s problem with his leg was due to the failure of the fractured tibia to heal properly and that condition was not caused by a mixture of the metals; in his opinion none of the disability plaintiff had in his leg was caused by the mixture of the metals.

In the case of O’Neill v. Craig, 493 S.W.2d 898 (Tex.Civ.App., Corpus Christi, 1973, ref., n. r. e.) the same questions involved here were raised. The court, at page 902 of the opinion, stated the following: “The jury is the sole judge of the facts and the circumstances proven. They may draw reasonable inferences and deductions from the evidence adduced before them. Insofar as there may be conflicts in the testimony of the witnesses, it is clear that the jury in the exercise of its prerogative, determines the credibility of the witnesses and the weight to be given their testimony. With all of the applicable principles of law in mind and after balancing the substantial evidence that supports the verdict against such evidence as is against the verdict, we do not find that the great weight and preponderance of the evidence requires a reversal of this case. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958); Couch v. Hale, 404 S.W.2d 920 (Tex.Civ.App.—Corpus Christi 1966).”

As stated, the jury found in answer to Issue No. 3 that Dr. Harmon was negligent in failing to observe that different type metals were being used in repairing plaintiff’s leg. The jury in answer to Issue No. 1 found that a preponderance of the evidence did not show the hospital to be negligent in mixing the metals in the screw tent.

The jury was justified in believing from the evidence that the doctor was in charge of the operation and that the hospital was not in charge of it; that the decision was the doctor’s to determine what metals were to be used in repairing plaintiff’s leg; and that he was negligent in using two different metals in reducing plaintiff’s fracture. The jury apparently concluded that it was not the hospital’s duty to tell the doctor which metals to use in the operation and that the hospital had performed its duty by furnishing to the doctor two metals that were medically approved for use in reducing fractures and which metals could readily be told apart merely by looking at them. The hospital placed the two metals there before the doctor for his use as he saw fit in performing the operation.

After considering all of the evidence in the case we find and hold that the jury’s answer to Special Issue No. 1 was not against the great weight and preponderance of the evidence.

We recognize that before the plaintiff would be entitled to have the judgment appealed from reversed because of the contentions urged in his first and second points of error that he would have to be correct in the contentions he urges under both points. This is true because even if the overwhelming weight and preponderance of the evidence was to the effect that the hospital was negligent in having plates and screws made of both stainless steel and vitallium mixed in the hospital tent, plaintiff still could not win this case unless the implanting of the mixed metals in plaintiff’s leg was a proximate cause of plaintiff’s damages. The jury found against the plaintiff on both issues. Findings on both issues, Nos. 1 and 7, would have to be in plaintiff’s favor in order for him to be entitled to a judgment.

In his second point of error he contends that the jury’s finding against him on the proximate cause issue (No. 7) was also so against the great weight and preponderance of the evidence as to be unjust.

Whether or not the implanting of mixed metals in plaintiff’s leg was a proximate cause of his injuries, as is inquired about in Issue No. 7, is a matter that the average layman would know nothing about. The answer to it would have to be determined from expert testimony. Henderson v. Mason, 386 S.W.2d 879 (Tex.Civ.App., El Paso, 1964, no writ hist.).

Three witnesses in the trial fit into this category. One was Dr. Richard Lambert from San Diego, California, who saw the plaintiff for the first time on the evening before the trial. He testified that there are 11 different things that could cause or contribute to cause a delayed or non-union of a fracture such as the plaintiff had and that in his opinion the non-union in plaintiff’s case was caused by electrolysis due to mixture of the metals.

Dr. Frank Harmon reduced the fracture and implanted the mixed metals on November 14, 1971, and treated plaintiff from then until March 13, 1972. He testified that: a delay in union of bones can be caused by many factors; there is a great difference of opinion as to whether mixing the metals will cause electrolysis; with this particular type of break even in instances of the best possible treatment 22% to 35% of such cases will end in bad results; soft tissue injury is the main cause of problems such as plaintiff had.

Dr. Ralph Donnell, an orthopedic surgeon, started treating plaintiff on April 18, 1972; he performed several operations in treating the leg; in his opinion plaintiff’s trouble was caused by the fact the fibula healed first and held the ends of the tibia apart and thus prevented proper healing of the tibia; electrolysis did not cause plaintiff’s damages; the mixed metals did not cause the delay in healing and did not cause any of plaintiff’s disability.

The opinions of Dr. Donnell and Dr. Harmon on the proximate cause question conflicted with the opinion of the California doctor, Dr. Lambert, and the jury chose to believe Dr. Harmon and Dr. Donnell.

Generally where testimony on an issue is in conflict the jury’s function is to pass on the credibility of the witnesses and to determine the facts.

Opinions of medical experts, even when uncontradicted, are not conclusive and only present fact issues for the determination of the fact finder. Bond v. Snow, 422 S.W.2d 842 (Tex.Civ.App., Eastland, 1967, affirmed in 438 S.W.2d 549). And in the case of Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ.App., Texarkana, 1974, ref., n. r. e.) the court said at page 496:

“In judging the accuracy of a medical witness’ testimony and the weight to be given it, the jury may consider the type and thoroughness of the examination made by him and the degree of attention given by him to the matter, as well as the witness’ skill and experience and his manner and attitude in testifying. ... If the opinions of the expert do not comport with the jurors’ ideas of sound logic, they may act accordingly.”

We hold that the jury’s answer to Issue No. 7 is not so against the great weight and preponderance of the evidence as to be unjust.

Plaintiff’s third point of error was that the trial court erred in overruling his motion for new trial because there was material jury misconduct of such a nature as to clearly indicate that the verdict was not based on a preponderance of the evidence, but on matters outside the record, untrue, wholly irrelevant and highly prejudicial to plaintiff’s right to a fair trial.

Rule 327, T.R.C.P. provides: “Where the ground of the motion (for new trial) is misconduct of the jury . . . the court shall hear evidence thereof ... in open court, and may grant a new trial if such misconduct proved ... be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury-probably resulted to the complaining party.”

Although the point of error does not specify any of the claimed misconduct, plaintiff in his brief argues that it consisted of the following: (1) the juror, Young, during deliberations bent a piece of paper into the shape of a tent in order to demonstrate to another juror the shape of a screw tent and, (2) the jurors apparently agreed all around that Issue No. 7 should be answered “No” unless the mixing of the metals was “due to the negligence of Graham General Hospital.”

Our review of the evidence presented at the hearing of the motion for new trial convinces us that Mr. Young, by bending the paper into the shape of a tent, in no way prejudiced plaintiff because the evidence in the trial had clearly demonstrated the things that Young indicated to the jury by bending the paper.

Jurors Creswell and Mrs. Bowden testified in substance that Mrs. Wise, the forela-dy on the jury, and the juror Young, both stated during deliberations that in considering Issue No. 7 that the jury should add into it the words “due to the negligence of Graham General Hospital”. The jurors, Young and Mrs. Wise, testified that no such thing occurred and that there was no agreement between the jurors that Issue No. 7 should be answered “No” unless the mixing of the metals was due to the negligence of the hospital.

Where the evidence is conflicting on an issue of jury misconduct the trial court’s decision thereon will be taken as final on appeal, unless a clear abuse of discretion appears. Murphy v. Davis, 305 S.W.2d 218 (Tex.Civ.App., Beaumont, 1957, no writ hist.); Texas Employers’ Insurance Ass’n v. Logsdon, 278 S.W.2d 893 (Tex.Civ.App., San Antonio, 1955, ref., n. r. e.); United States Fidelity & Guaranty Co. v. Turner, 390 S.W.2d 302 (Tex.Civ.App., Texarkana, 1965, ref., n. r. e.), and Goates v. Ingram, 386 S.W.2d 654 (Tex.Civ.App., Eastland, 1965, ref., n. r. e.). We hold that there was no abuse of discretion here.

Testimony was offered during the trial of the case that: (1) if a mistake was made in the operating room the blame is on the doctor and not on the nurse; (2) the defendant hospital is supported by the taxpayers of the City of Graham; (3) the taxpayers had already paid plaintiff’s medical bills; and that (4) plaintiff has settled with Dr. Harmon.

There was evidence introduced at the hearing of the motion for new trial that at some time during the jury deliberations the matters just referred to were mentioned by one or more jurors.

As stated, there was evidence in the trial tending to establish each of those matters and some of it was introduced by the plaintiff. When a juror mentioned the fact that the plaintiff had settled with the doctor, the forelady, Mrs. Wise, promptly told the juror that the amount of that settlement had nothing to do with what the jury had to decide and that they should not discuss that.

We hold that the record in this case does not reflect any material jury misconduct that probably resulted in injury to the plaintiff.

The judgment is affirmed.