text:
    George C. WEBB et al., Appellants, v. Whitley R. SESSIONS et al., Appellees.
    No. 4823.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 5, 1975.

      James A. Mills, Jr., Abney, Conner & Mills, Dallas, for appellants.
    James P. Neill, Jr., Sessions, Sessions, Neill, Schucchi & Hatch, Dallas, for appel-lees.
   WALTER, Justice.

George C. Webb and William R. Moller, individually and on behalf of and as a representative of a class, to-wit: the deputies, agents and employees of the Dallas County Sheriff’s Office of Dallas County, Texas, a group “in excess of 740 persons” filed suit against Whitley R. Sessions, Carl Freund and A. H. Belo Corporation for damages arising out of an alleged libelous publication.

The court rendered a summary judgment for the defendants and the plaintiffs have appealed. We affirm.

The plaintiffs alleged that on the 19th day of June, 1974, the defendants printed and circulated an article which was a false and malicious libel of and concerning the deputies, agents and employees of the Dallas County Sheriff’s Office entitled “other Sheriffs linked to case”. Plaintiffs allege to be libelous the following portions of the article:

“Special Prosecutor Whitley Sessions, who described petty Thievery as ‘a way of life’ in the Dallas County Sheriff’s Office, said Tuesday he uncovered evidence which showed that three additional sheriffs in Northeast Texas certified blank bonds.”
“SESSIONS SAID his investigation showed ‘a large amount of petty thievery and the acceptance of small bribes’ within the Dallas County Sheriff’s Office.
‘You could say it was a way of life,’ Sessions said. ‘It involved small amounts and it had been going on for a long time. But we have no direct evidence of large bribes or thefts.’ ”

The court rendered summary judgment because:

. . the article of June 19, 1974, did not refer to any individual by name and could not be construed to mean and include all of the deputies, agents and employees of the Dallas County Sheriff’s Office and thus does not libel each deputy, agent or employee of the Dallas County Sheriffs Office.”

Article 5430, Y.A.C.S., which provides the basis for libel action in Texas is as follows:

“A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury. Acts 1901, p. 30.”

In Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890 (1960), at page 893, the court said:

“We hold as a matter of law that Matthews cannot recover for libel to his person in this instance for the reason that the articles refer to no person who could possibly be identified as the respondent. The respondent Matthews was not named in either of the articles. The rule in this and other jurisdictions is that the asserted libel must refer to some ascertained or ascertainable person, and that person must be the plaintiff.”

In Pridemore v. San Angelo, 146 S.W.2d 1048 (Tex.Civ.App.—Beaumont 1941, writ dism’d jdgmt. cor.), at page 1053, the court said:

“. . . As a general rule, it is the province of the court to determine what constitutes defamation abstractly. Hence, if the language is plain and unambiguous, it is a question of law whether or not it is defamatory.”

In Macaulay v. Bryan, 75 Nev. 278, 339 P.2d 377 (1959), at page 378, the court said:

“It is clear, under the law, that an individual may not, as a general rule, recover damages for defamation of a group or class of persons of which he is a member. Louisville Times v. Stivers, 252 Ky. 843, 68 S.W.2d 411, 97 A.L.R. 277; Noral v. Hearst Publications, 40 Cal.App.2d 348, 104 P.2d 860; see annotation 97 A.L.R. 281-292. When the group or class is large the defamatory matter must point to, or single out, the plaintiff as the person involved.”

The June 19, 1974 article which was printed and circulated in the Dallas Morning News did not refer to any individual by name and could not be construed to mean and include all the deputies, agents and employees of the Dallas County Sheriff’s Office.

We hold as a matter of law that an individual may not recover damages for defamation of a group or class in excess of 740 persons of which he is a member.

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: ROBINSON, Justice.

license: Public Domain

text:
    Mr. and Mrs. W. L. THOMAS, Appellants, v. HALE COUNTY, Texas, Appellee.
    No. 8618.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 8, 1975.

      Anderson, Edwards & Warnick, J. Q. Warnick, Jr., Lubbock, for appellants.
    W. Z. Fairbanks, Jr., County Atty., George A. Canon, Plainview, for appellee.
   ROBINSON, Justice.

Plaintiffs, Mr. and Mrs. W. L. Thomas, seek a permanent injunction restraining the defendant, Hale County, Texas, from cutting a certain barrow ditch to a level which plaintiffs contend would divert the natural flow of runoff water so as to cause flooding of plaintiffs’ land. The trial court denied plaintiffs’ motion for a temporary mandatory injunction requiring Hale County to partially fill in the ditch pending final judgment. Plaintiffs appeal from the interlocutory order. Affirmed.

In a hearing on an application for temporary injunction, the only question before the court is the right of applicant to a preservation of the status quo of the subject matter of the suit pending final litigation. The status quo to be preserved is the last, actual, peaceable, noncontested status which precedes the pending controversy. Applicant is not required to show that he will prevail in the litigation. He need only show a probable right and a probable injury. Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552, 553 (1953). The probable injury must be eminently threatened and may not be speculative or conjectural. Kostoff v. Harris, 266 S.W.2d 204, 206 (Tex.Civ.App.—Dallas 1954, writ ref’d n. r. e). Where the pleadings and the evidence show a probable right and a probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Transport Company of Texas v. Robertson Transports, Inc., supra. But, where there is no evidence of probable injury, it is an abuse of discretion for the trial court to grant a temporary injunction. Upshur Rural Electric Cooperative Corp. v. Key, 469 S.W.2d 420 (Tex.Civ.App.—Texarkana 1971, no writ).

The court in the case of White v. State, 122 S.W.2d 714, 717 (Tex.Civ.App.-Fort Worth 1938, no writ), quoting from 24 Tex. Jur. § 88, p. 125, stated the standard for the granting of preliminary mandatory injunctions as follows:

Although the Texas courts exercise greater liberality in granting mandatory preliminary injunctions than do the courts of those states which adhere to the distinctions between law and equity, it has been said that such injunctions should be granted with great caution. Ordinarily a mandatory injunction will not be granted before final hearing, and not even then except under pressing necessity to prevent serious damage which would ensue from the withholding of the writ, or where necessary to effectuate the decree. In determining whether or not this necessity exists, each case must, of course, depend upon its own circumstances.

Appellants brought this action under V.T. C.A. Water Code § 5.086. Said statute reads as follows:

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow.

Section 1.002 of the Water Code provides that the construction of the provisions of the Code is to be done in accordance with Article 5429b-2 (Supp.1975), V.A.C.S., which is the Code Construction Act of Texas. Section 1.04 of the Code Construction Act defines “person” so as to include government or governmental subdivision or agency.

The testimony showed that water from a north-south paved road to the east of the Thomas place would flow west along the county road in question only a short distance before it encountered a little hill. The barrow ditch in question, running along the north side of the county road, was cut through this little hill to permit the water to continue in a westerly flow to a playa lake across from the Thomas land. Neither the ditch in question nor the playa lake are on the Thomas land. If the ditches were partially filled with dirt, the flow of water would be changed back to its natural flow to the south. The ditches were first cut to the challenged depth some time in the 1950⅛. Thereafter, there was a big rain which Thomas testified caused the water to run in the ditch to the playa lake and to overflow onto the Thomas land damaging 12 or 15 acres. The time of that heavy rain in the late 1950’s was the only occasion when the Thomas land was flooded. The ditches off and on would fill and be opened by the county. On April 25, 1975, in the course of maintaining the dirt road, the county cut the ditch in the depth of which plaintiffs complain. Thomas was unable to say whether this depth was greater than it had been in the past.

We have considered the entire record and, although the evidence shows a diversion of water from its natural course by the county, it does not show more than a minimal probability of injury pending final determination of the case. We conclude that the trial judge did not abuse his discretion in denying the requested mandatory temporary injunction.

The judgment of the trial court is affirmed.


author: REYNOLDS, Justice.

text:
    R. L. WARREN et ux., Appellants, v. H. G. DENISON, dba Denison Contractors, et al., Appellees.
    No. 8620.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 8, 1975.

      Garner, Vickers, Purdom & Nelson, Jack 0. Nelson, Jr., Lubbock, for appellants.
    Bowers & Cotten, Claude W. Harland, Lubbock, for appellees.
   REYNOLDS, Justice.

The principal assertion in this suit is a cause of action on a contract, which entitles plaintiffs to maintain venue of the main suit and the ancillary action in the county of defendants’ domicile, rather than an assertion of an action chiefly for damages to or recovery of land which must be brought in the county where the land is located. Reversed and rendered.

On May 17, 1974, plaintiffs R. L. Warren and his wife, Leta Warren, entered into a written contract with defendant H. G. Den-ison, d/b/a Denison Contractors, for the construction and completion within seven months of a dwelling house on the Warrens’ property located in Tahoka, Lynn County, Texas. Simultaneously, the Warrens executed a mechanic’s and materialman’s lien contract and note and a deed of trust to further secure their payment of the contract price.

More than a year later on May 27, 1975, the Warrens filed this suit against Denison in Lubbock County, Texas, where Denison is domiciled. Setting out the contract, the Warrens alleged breaches of the contract by Denison, including the failure to complete the residence on time or in a good and workmanlike manner, which were claimed to be conditions precedent to their payment of the final amount specified upon completion. The Warrens asked for monetary damages and a declaration of the rights and duties of the parties under their written agreements. In the final of six paragraphs of allegations, the Warrens alleged that Denison had failed to complete construction and was withholding possession from them, and they asked for an order requiring Deni-son to show cause why the Warrens should not take possession of the property for the purposes of completing construction and mitigating damages.

Denison filed a plea to the venue, seeking to invoke the mandatory provisions of subdivision 14 of the general venue statute to move the suit from his domiciliary county to Lynn County. It was Denison’s pleading that Warrens’ cause of action was for recovery of, or for damages to, or for removal of encumbrances upon the title to, or to quiet title to, land situated in Lynn County, which required venue there. The Warrens controverted the plea, asserting their cause of action was on a contract which, under subdivision 5, gave them the permissible alternative of bringing their suit in the county of Denison’s domicile. Hearing on the venue issue was set for July 21.

Before the hearing date, the Warrens learned that Denison had requested J. B. Cotton, Jr., substitute trustee under the deed of trust, to act and post notices for an August 5 sale of the Warrens’ property. The Warrens filed on July 10 their first amended original petition naming Cotton as an additional defendant. Repeating their allegations and prayer for relief against Denison, the Warrens, asserting the requested and pending action by Cotton was without justification, requested that, after proper notice, Cotton be enjoined from proceeding with the trustee’s sale. On the same date, the court entered its order requiring Cotton to appear on the same date and time set for the venue hearing to show cause why he should not be enjoined. Ten minutes before the scheduled hearing, Cotton, a resident of Lubbock County, filed his plea to the venue, attempting to have the action against him transferred to Lynn County.

At the scheduled time, the court heard evidence regarding only Denison’s plea to venue and, without ruling on Warrens’ prayers for temporary relief, sustained Denison’s plea, ordering the entire suit against both defendants, Denison and Cotton, transferred to Lynn County. Thereafter and within the time prescribed, the Warrens filed a controverting affidavit to Cotton’s venue plea.

The general venue rule, and the policy of the law, is that a defendant shall be sued in the county of his domicile. Pool v. Pickett, 8 Tex. 61 (1852). However, the legislature has enacted exceptions to the general rule and, generally, the exceptions are for the benefit of the plaintiff, Fouse v. Gulf, G & S.F. Ry. Co., 193 S.W.2d 241, 244 (Tex.Civ.App.-Fort Worth 1946, no writ), who, by virtue of subdivision 5 and similar exceptions, is granted permissible alternatives. Notwithstanding, subdivision 14 does require that a suit for recovery of or damage to land, or to remove encumbrances upon or quiet title to land, or to prevent waste on land, must be brought in the county where the land, or a part of it, may lie.

The question, then, is whether the nature of the Warrens’ suit is one on a contract as they contend, or one for damage to and recovery of land as Denison and Cotton insist. That question is determined by the nature of the principal right asserted in the Warrens’ petition and the relief they seek for the breach of the asserted right. Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957). Stated differently, the real character of the lawsuit governs the venue. Bee County Cooperative Association v. Dominy, 489 S.W.2d 418 (Tex.Civ.App.-Corpus Christi 1972, no writ).

When the Warrens’ pleadings are analyzed, it becomes clear that the real character of their suit is one on a contract. They principally assert the contractual right to a completed residence according to the agreements, which they allege Denison breached, and they ask for a declaration of the rights, obligations and duties of the contracting parties, including an adjudication of any damages to which they are entitled as a credit on the final amount they contracted to pay for a completed residence. Although they pleaded the liens existing on their property as a result of the construction contract, they neither questioned the validity of the liens nor prayed that they be removed or their title quieted. And even though they asked for an order of possession for the purpose of completing the construction under the breached contract, that was an incidental and not a dominant purpose of the suit. Thus, the real character of the suit does not fall within the purview of subdivision 14, but it comes within subdivision 5 which permits the maintenance of the suit in Lubbock County.

The reason for seeking temporary relief against Cotton’s actions arose subsequent to the institution of the main suit and it is, as the parties agree, ancillary to the main suit; therefore, the injunctive action does not affect, but follows the venue of the main suit. See International & G. N. Ry. Co. v. Anderson County, 150 S.W. 239 (Tex.Civ.App.-Galveston 1912), affirmed 106 Tex. 60, 156 S.W. 499 (1913); Fielder v. Parker, 119 S.W.2d 1089 (Tex.Civ.App.—Eastland 1938, no writ).

The Warrens’ points of error one and three are sustained. Point two is preter-mitted.

The judgment of the trial court is reversed. Judgment is here rendered overruling the pleas challenging the venue selected by the Warrens. Rule 434, Texas Rules of Civil Procedure.

      . All dates mentioned hereafter are in the year 1975.

      . Subdivisions of the general venue statute are referred to by the numbers under which they appear in Vernon’s Ann.Civ.St. art. 1995.


text:
    Vivian ALVAREZ, Appellant, v. The EMPLOYERS’ FIRE INSURANCE COMPANY, Appellee.
    No. 8600.
    Court of Civil Appeals of Texas, Amarillo.
    Dec. 8, 1975.
    Rehearing Denied Jan. 5, 1976.

      Edwards, Smith <& Associates, Carson Smith, Amarillo, for appellant.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson, R. A. Wilson, Amarillo, for ap-pellee.
   ON MOTION FOR REHEARING

REYNOLDS, Justice.

Our opinion of 20 October 1975 is withdrawn and, in lieu thereof, this opinion is substituted.

During the jury trial of Vivian Alvarez’s suit to set aside a compromise agreement in settlement of her workmen’s compensation claim, the court directed a verdict against her. Direction of a verdict was proper because she failed to produce evidence raising all of the issues of legal fraud. Affirmed.

In March of 1972, Vivian Alvarez suffered a back injury in the course of her employment with Holiday Inn of Amarillo whose workmen’s compensation insurance carrier was The Employers’ Fire Insurance Company. After Mrs. Alvarez went to and was treated by a doctor, she was directed by the carrier to Dr. Ralph Citron for examination and treatment. His May 30 report for the carrier was that her injury was a moderate lordosis and bilateral muscle spasm in the lumbar spine, and his impression was that she had a mild disc herniation which had not responded to treatment to the extent to permit her to return to work. Prescribing that she wear a spinal brace and take muscle relaxants, Dr. Citron predicted that she would be able to return to work. On June 20 Dr. Citron made the report that he had released Mrs. Alvarez to return to work. An August 18 report, noting that Mrs. Alvarez still complains of pain and tiredness in her back but that she is working at her original job, conveyed Dr. Citron’s belief that Mrs. Alvarez has a chronic lumbrosacral strain for which no further treatment is necessary, and his opinion that she has a five percent permanent partial disability. By his September 25 letter, Dr. Citron reported that his September 12 examination of Mrs. Alvarez showed no change from her previous condition, that she has been working and wearing her brace, and that she has a five percent permanent partial disability or loss of earning capacity. He contemplated no further treatment.

A copy of this letter was sent to Thomas V. Priolo, an attorney consulted by Mrs. Alvarez in June. She represented to him that she was not able to work. At the trial she testified that she had tried to return to work, but was able to work only three or four days.

At a September meeting of Mr. Priolo, a representative of the carrier and an Industrial Accident Board examiner, it was agreed that the medical information was not sufficient for a final determination. Mr. Priolo arranged for Mrs. Alvarez to be examined by Dr. Richard Chandler. In his November 21 report to Mr. Priolo, Dr. Chandler detailed his October 12 examination of Mrs. Alvarez and her November 7 hospitalization. He stated his diagnosis of a compression fracture at the antero-superi- or aspect of lumbar 1 and lumbar 2, giving his prescribed course of treatment and calling for follow-up X-rays. In the opinion of Mr. Priolo, Dr. Chandler essentially confirmed what Dr. Citron had found and, after talking with Dr. Chandler, he did not deem the compression fracture found by Dr. Chandler to be serious.

After an exchange of medical information, Mr. Priolo entered into negotiations with the insurance carrier’s representative. Although Mrs. Alvarez was representing that she was not able to work and Mr. Priolo was contending for a larger amount in settlement, the position of the carrier’s representative was that $1,200 additional to the $744.32 already paid to Mrs. Alvarez and payment of her medical expenses was all the medical would support and all the carrier would authorize him to pay.

Mr. Priolo talked to Mrs. Alvarez about the settlement negotiations and explained to her the options or alternatives if the amount offered on behalf of the carrier was unacceptable. Even though her complaints of disability would have substantially exceeded a five percent disability, Mr. Priolo told Mrs. Alvarez that Dr. Citron is an expert whose opinions are respected, and “if he said 5%, she was probably going to get 5%” which, according to Mr. Priolo’s estimate “would be right at $1,000.”

On December 7, the compromise and settlement agreement was executed on the basis of the carrier’s offer, and the medical was left open for one year for treatment by Dr. Citron only. Although Mr. Priolo thought it was prudent to have an independent evaluation by a physician other than Dr. Citron before he was willing to make a settlement, it was essentially Dr. Citron’s “report” that he relied on, and he thinks Mrs. Alvarez relied on, in making the settlement.

Later on February 22, 1973, Mrs. Alvarez underwent surgery at the direction of Dr. Citron for the removal of a disc at the right L-4, L-5 interspace. Dr. Citron’s immediate follow-up report related that she has a ten percent permanent partial loss of earning capacity.

Thereafter, Mrs. Alvarez instituted this suit to set aside the compromise and settlement agreement. Her pleaded grounds were that she was induced to settle her claim through the material medical misrepresentations of the insurance carrier’s agent, Dr. Citron, and that the insurance carrier fraudulently devised a scheme or acquiesced in a design to settle her claim with full knowledge that her injuries were severe and disabling. At . the conclusion of the evidence, the trial court directed a verdict for the carrier, rendering judgment that Mrs. Alvarez take nothing.

To escape the binding effect of the compromise and settlement agreement, it was necessary for Mrs. Alvarez to show that: (1) she has a meritorious claim for compensation in an amount greater than the amount paid, Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 468 (1949); (2) Dr. Citron’s medical representations were false, notwithstanding that he made them in good faith and believed them to be true; (3) she believed them to be true; and (4) she was materially induced by such belief to make the settlement. Graves v. Hartford Accident & Indemnity Co., 138 Tex. 589, 161 S.W.2d 464, 466-67 (1942). The failure by Mrs. Alvarez to produce evidence raising an issue of fact on one or more of the essential elements of her cause of action based on fraud would entitle the carrier to a directed verdict. Statham v. City of Tyler, 257 S.W.2d 742, 744 (Tex.Civ.App.—Texarkana 1953, writ ref’d n. r. e.).

Mrs. Alvarez’s testimony that she was not, and never would be, able to work as a result of her injury is prima facie evidence that she has a meritorious claim for more compensation than she settled for and that Dr. Citron’s medical representations were false. There is, however, no evidence that Mrs. Alvarez believed Dr. Citron’s representations were true or that she relied on their verity in agreeing to the settlement. She did not testify that she did; indeed, her never changing belief and her assertions to her attorney that she was not able to work are diametrical contradictions of the idea that she believed Dr. Citron’s representations were true. While Mr. Priolo did state that it was Dr. Citron’s report he essentially relied on, and believed that Mrs. Alvarez relied on, in making the settlement, he did not reference that testimony to a belief that the report was true. Rather, Mr. Priolo’s testimony was referenced to his belief that, although the assertions of Mrs. Alvarez about her condition was contradictory of any opinion expressed by Dr. Citron, he could not hope to support more, or get any better results in front of a jury, than Dr. Citron’s five percent rating. In short, the reliance was from the belief of insuperableness, instead of the truthfulness, of Dr. Citron’s rating.

It long has been the rule in Texas that voluntary settlements are favored; and, even though the final result is different from that anticipated, a settlement will not be set aside on the ground of legal fraud if an element of fraud is missing. See Houston & T. C. Ry. Co. v. McCarty, 94 Tex. 298, 60 S.W. 429, 430 (1901), and Thrower v. Brownlee, 12 S.W.2d 184, 186 (Tex.Comm’n App.1929). Because Mrs. Alvarez failed to produce evidence that she believed in and materially relied on the truth of Dr. Citron’s representations, the court properly directed a verdict.

The Employers’ Fire Insurance Company’s motion for rehearing is granted. Our judgment of 20 October 1975 is set aside. Vivian Alvarez’s points of error are overruled.

The judgment is affirmed.

      . A previous judgment overruling the insurance carrier’s plea of privilege was reversed and the cause was remanded for a full development of the venue issues. Employers' Fire Insurance Company v. Alvarez, 511 S.W.2d 400 (Tex.Civ.App.-Amarillo 1974, no writ).

      . All dates are in the year 1972 unless otherwise specified.


author: CHADICK, Chief Justice.

text:
    M. Carl JONES, Appellant, v. Dr. M. James BROOKS, Jr., et al., Appellees.
    No. 8332.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 9, 1975.
    Rehearing Denied Dec. 30, 1975.

      L. F. Burke, Longview, J. R. Cornelius, Jefferson, for appellant.
    Doyle Curry, Jones, Jones & Baldwin, Marshall, Roberts, Harbour, Smith, French & Ritter, Longview, for appellees.
   CHADICK, Chief Justice.

This is an appeal from an order overruling a plea of res judicata. The appeal is dismissed.

Res judicata is listed in Tex.R. Civ.P. 94 as a defense that must be affirmatively plead. The plea is a defense upon the merits. In 2 McDonald, Tex.Civ.Practice, Sec. 7.43 (1970) it is said that “/R/es judica-ta, as used in Rule 94, embraces the three subdivisions of the doctrine: merger, bar, and collateral estoppel.” It is apparent from the nature of the plea that its assertion by a party is not an assertion of an action maintainable as a separate lawsuit. The plea merely interposed an issue in the pending lawsuit. It was separately tried by the trial court, as authorized by Tex.R. Civ.P. 174. The order overruling the motion was necessarily an interlocutory judgment as it disposed of only one issue in the case and left other issues made by the pleadings to be adjudicated by the court before determining the rights of the parties. Hall v. City of Austin, 450 S.W.2d 836 (Tex.1970).

No statute authorizes an appeal from an order deciding a plea of res judica-ta and no Texas case has been found excepting such order from the general rule stated in Freeman on Judgments and quoted in Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944, opinion adopted):

“. . . that no judgment or decree will be regarded as final within the meaning of the statutes in reference to appeals, unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of, so far as the court had power to dispose of it.”

See 4 McDonald, Tex.Civ.Practice, Sec. 17.-03.2 (1971) and 17.04 for discussion of the “one” final judgment rule.

However, it can be argued that the record shows that res judicata is the only undetermined issue before the court at the time the order overruling it was made, that resolution of such issue decided the case upon the merits and the order thereon was an appealable final judgment.

More than three years before entry of the order denying the plea of res judicata the trial court, in response to appellant’s original petition (praying for a temporary injunction and on final hearing that the injunction be made permanent), held an injunction hearing and entered an order denying relief. The order entered at conclusion of the injunction hearing is ambiguous in that it would have been a proper order denying an application for temporary injunction or denying a permanent injunction, depending upon which was actually tried.

The appellant did not, in the hearing on the plea of res judicata, introduce the record of the evidence adduced at the injunction hearing. Evidence was introduced tending to show that the trial judge was of the opinion that the injunction hearing was limited to evidence upon issues pertinent to an application for temporary injunctive relief. In the absence of proof of the evidence actually adduced, this court is unable to determine the factual issues decided at the injunction hearing.

The purpose of a temporary injunction is to preserve the status quo until final hearing. An applicant is not required to establish that he will finally prevail but there must be proof of a probable right and a probable injury. 31 Tex.Jur.2d, Injunctions, Sec. 12. On the other hand an applicant for a permanent injunction may be entitled to relief though his application for temporary injunction was theretofore denied. See Smith v. City of Dallas, 36 S.W.2d 547 (Tex.Civ.App., Texarkana 1931, writ dism’d); 43 C.J.S. Injunctions § 213. This court cannot determine from the record that the evidence was such that the trial court could not have properly refused temporary injunctive relief. For example, the evidence might have warranted the trial judge in finding the status quo would not be disturbed pending trial, an issue not present in an application for permanent injunction, and denied temporary relief on that basis.

The appeal must be dismissed as the appeal record does not disclose that the order appealed from is a final judgment. It is so ordered.

CORNELIUS, J., not participating.


author: NYE, Chief Justice.

text:
    PARKVIEW GENERAL HOSPITAL, INC., Appellant, v. WACO CONSTRUCTION, INC., Appellee.
    No. 1011.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 9, 1975.

      Paul D. Little, Corpus Christi, for appellant.
    John B. McNamara, McNamara, Smith & McNamara, Waco, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit by a dissenting shareholder against a corporation to determine the fair value of its shares of stock. Trial was before the court without the aid of a jury. The trial court found that the plaintiff had fully complied with all of the statutory and legal requirements to qualify as a dissenting shareholder and was, therefore, entitled to the fair value of its stock as reported by the court appointed appraiser. From such judgment the defendant corporation has perfected its appeal to this Court.

Plaintiff Waco Construction, Inc. was the owner of 250 shares of common stock in the defendant corporation Parkview General Hospital, Inc. On or about March 4, 1968, the defendant sent out notices to the plaintiff and others that a special meeting of all of the shareholders of defendant would be held on March 13, 1968. The purpose for such meeting was to consider a proposal of the board of directors of the defendant corporation that the hospital building, lands and assets should be sold by the corporation, pursuant to the terms of a contract dated March 5,1968. Prior to the taking of the vote of the shareholders on the proposed corporate action, plaintiff filed on March 12, 1968, written objections to the proposed corporate action setting out that its right to dissent would be exercised if such action was taken.

On March 13, 1968, at the shareholders’ meeting, the proposed corporate action was effectuated and on March 25, 1968, the sale occurred. After receiving notice on April 2, 1968, that the sale of the defendant’s assets had taken place, the plaintiff made written demand (pursuant to Article 5.12 of the Texas Business Corporation Act), for the payment of the fair value of its shares of stock in said corporation as of the day before the vote was taken authorizing such corporate action. Plaintiff estimated that the fair value of its 250 shares was $50,-000.00.

On May 7,1968, some 27 or 28 days after demanding payment of the fair value of its stock, plaintiff submitted its certificate representing its 250 shares of stock to defendant’s attorney for an endorsement to be placed thereon that such demand had been made. On June 3, 1968, the stock certificate was returned to plaintiff with the following endorsement:

“Waco Construction, Incorporation, the shareholder of the within shares of common stock of Parkview General Hospital, Inc. had demanded payment of the fair value of such shares of stock by letter dated April 9, 1968, and such shareholder shall not hereafter be entitled to vote or exercise any other rights of a shareholder except to receive payments for its shares of such stock pursuant to the provisions of Article 5.12, Texas Business Corporation Act and its right to maintain other action the shareholder may be entitled under such act.”

The defendant corporation gave its opinion that the fair value of such shares on March 12, 1968, the day prior to the sale of the assets being approved, was $2,500.00 and that the defendant was prepared to pay such amount.

The plaintiff rejected such offer. Being unable to agree with defendant on a fair valuation of the shares, plaintiff, thereafter filed its original petition asking for a finding and determination of the fair value of such shares. Defendant filed its answer, included within was the admission that there was legal compliance with the statute with respect to notices by the plaintiff to the defendant.

Upon a hearing on the petition in February of 1972, the trial court concluded that plaintiff, Waco Construction, Inc., has complied with all of the terms and provisions of the Texas Business Corporation Act and that plaintiff was a dissenting shareholder of the defendant corporation, Parkview General Hospital, Inc., and that the said plaintiff was therefore entitled to the valuation of and payment for the shares of stock as of the 24th day of March, 1968. The trial court appointed George H. Trader appraiser to determine the fair value of the shares owned by plaintiff. Defendant made no objection to the appointment nor to the court’s finding that plaintiff had complied with all the terms and provisions of the Texas Business Corporation Act.

On July 3,1973, Trader filed his appraisal with the court, concluding that the value of plaintiff’s shares of stock was $48.41 per share which amounted to the sum of $12,-102.50 for plaintiff’s 250 shares of stock. The defendant then filed its motion to disregard the appraiser’s report contending that certain matters had not been taken into consideration by the appraiser in finding the value of the stock and that upon consideration of such matters, the market value of such shares would only be $10.00 per share. There is nothing in the record, however, that indicates that such motion was ever presented to the court for action or decision. The trial court found that such motion had been abandoned.

The trial court filed a number of findings of facts and conclusions of law supporting its judgment. The defendant did not object or make any exceptions to the findings. The trial court found among other things that plaintiff was the owner of 250 shares of the capital stock of the defendant corporation and that the corporation disposed of all or substantially all of its assets effective March 25, 1968. The court found that the plaintiff corporation had properly exercised its right to dissent, and that an appraiser should be appointed to determine the value of the defendant’s stock. The court further found that neither party objected to the appointment of the appraiser or to the appraiser’s report that the value of the plaintiff’s stock was $12,102.50 which the trial court ultimately found was the fair value of the shares of stock owned by the defendant.

The defendant brings forward five points of error on appeal. In its first point, it contends that the judgment of the trial court, should be reversed because the court overruled the defendant’s plea in abatement and motion to dismiss. The defendant filed the motion asserting that plaintiff’s suit should be abated and dismissed for the reason of plaintiff’s failure to prosecute its cause of action with reasonable diligence made the plaintiff “guilty of latches and stale demand.” Defendant further asserted that plaintiff failed to comply with the provisions of Article 5.13B of the Texas Business Corporation Act and for such additional reason the suit should be dismissed. This latter contention is not briefed and is accordingly overruled.

A plea in abatement is one which when filed, must be urged, or is subject to being waived. Cook United, Inc. v. State, 455 S.W.2d 332 (Tex.Civ.App.-Fort Worth 1970, rev’d on other grounds 464 S.W.2d 105); Sneed v. Sneed, 296 S.W. 643 (Tex.Civ.App.-Austin 1927, no writ).

Although defendant filed its plea in abatement and motion to dismiss, the record shows that it was never urged by the defendant. It was the duty of the defendant to present its plea and request a ruling thereon before the case was called for trial on the merits. The defendant’s failure to do so constituted a waiver of the plea. Defendant’s first point of error is overruled.

The defendant’s second point of error is stated as follows:

“The Judgment of the trial Court should be reversed because of the holding by the Court 1. . . that on the 9th day of April, 1971, the Secretary of State of the State of Texas, Pursuant to the provisions of Article 12.17, Chapter 12, Title 122A, Taxation-General, Revised Civil Statutes of Texas, forfeited the Corporate Charter of the Defendant Corporation, Parkview General Hospital, Inc.; that said Charter has not been revived pursuant to the provisions of said Statute and on the date of the trial for this cause of action and on the date of the entry of this Judgment the Corporate Charter of said Defendant Parkview General Hospital, Inc. remains forfeited; ’, thus denying Appellant its right to defend against the claims of Appellee and that such denial was an abuse of discretion.”

In the first place, the trial court did not make such a holding; it was an undisputed evidentiary fact. The record discloses that the charter of the defendant corporation had not been reinstated as of the date of trial. Defendant asserts that the trial court based its judgment on this fact, thus denying the defendant the right to sue or defend its case under the authority of Article 12.14, Taxation-General (1969). This article states in part: “. . . any corporation whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any court of this State, except in a suit to forfeit the charter or certificate of authority of such corporation.”

Although defendant forfeited its right to defend because its charter had been forfeited, such matter was not raised or urged by the plaintiff corporation. Unless waived, a corporation whose charter has been forfeited does not have the right to use the courts of Texas. See Ross Amigos Oil Co. v. State, 134 Tex. 626, 138 S.W.2d 798 (1940). See also Mobile Homes of America, Inc. v. Easy Living, Inc., 527 S.W.2d 847 (Tex.Civ.App.—Fort Worth 1975).

Nowhere in the judgment does the court hold, refer to, or state that the judgment in favor of plaintiff was based in any manner on the forfeited condition of defendant’s corporate charter. After a review of the statement of facts, there appears no indication that defendant was denied the right to defend. In fact, there was no evidence tendered by the defendant corporation which was refused by the court on the ground that defendant had forfeited the charter. Defendant’s second point of error is completely without merit.

In defendant’s third point of error, it contends that it was error for the trial court to allow testimony and/or documentary evidence over defendant’s objections tending to show no corporate status on the part of the defendant corporation and no' legal standing to be in court. We have reviewed that part of the statement of facts wherein the defendant complains of the testimony introduced and find there was no objection by defendant nor any ruling by the trial court with respect to the introduction of the complained of evidence. No request was made by the defendant to exclude or strike the testimony complained of after it was given. Consequently, defendant failed to preserve its right of appellate review. See Bridges v. City of Richardson, 354 S.W.2d 366 (Tex.Sup.1962); Harlow v. Swift and Company, 491 S.W.2d 472 (Tex.Civ.App.-Eastland 1973, writ ref’d n. r. e.); Dicker v. Security Insurance Company, 474 S.W.2d 334 (Tex.Civ.App.-Waco 1971, writ ref’d n. r. e.). Appellant’s third point of error is overruled.

Defendant next attacks the order of the trial court appointing George A. Trader appraiser contending it was not aware of such action taken by the court (the appointment) nor was Mr. Trader qualified and that such appointment was not done in accordance with Article 5.12C of the Texas Business Corporation Act. Article 5.12C provides as follows:

“C. After the hearing of such petition, the court shall determine the shareholders who have complied with the provisions of this Article and have become entitled to the valuation and payment of their shares, and shall appoint a qualified appraiser to determine such value. Such appraiser shall have power to examine any of the books and records of the corporation the shares of which he is charged with the duty of valuing, and he shall make a determination of the fair value of the shares upon such investigation as to him may seem proper. The appraiser shall also afford a reasonable opportunity to the parties interested to submit to him pertinent evidence as to the value of the shares. The appraiser also shall have such power and authority as may be conferred on Masters In Chancery by the Rules of Civil Procedure or by the order of his appointment.”

The record shows that the defendant was fully apprised of the court’s action in appointing Mr. Trader as appraiser as reflected by the court’s order. No objection to such appointment was made by defendant until after the appraiser’s report was filed, and then the objection was only to the method of computation of the fair value of the shares and not to appraiser’s qualifications or that defendant was deprived of the opportunity to contest the appointment of Mr. Trader as the appraiser.

The defendant further complains that the appraiser’s report filed July 24, 1972, appraising the value of the stock as of March 16, 1968, does not make any attempt to determine the value of the stock as of March 24, 1968, in accordance with the order of the court. This is not so. Mr. Trader testified that his appraisal of $48.41 per share was the value on both March 16,1968 and March 24, 1968, the date in the trial court’s order. Appellant’s fourth point of error is overruled.

In appellant’s last point of error, it asserts that plaintiff failed to conform strictly to the provision of Article 5.13B of the Texas Business Corporation Act. The trial court found that: “Waco Construction, Inc. exercised its right of dissent to said sale in the manner provided by the Texas Business Corporation Act.” This point of error must be overruled for several reasons. First, the defendant corporation admitted that plaintiff had complied with the statute. Second, the defendant failed to object to plaintiff’s failure to strictly comply with the statute. Third, defendant did not exercise its option to terminate plaintiff’s rights under Article 5.12 for non-compliance. And finally, defendant did not show that the non-compliance prejudiced it in any manner whatsoever. See Rule 434, T.R.C.P.

Article 5.13B of the Texas Business Corporation Act provides in part as follows:

“B. Within twenty (20) days after demanding payment for his shares in accordance with Article 5.12, each shareholder so demanding payment shall submit the certificate or certificates representing his shares to the corporation for notation thereon that such demand has been made. His failure so to do shall, at the option of the corporation, terminate his rights under Article 5.12 unless a court of competent jurisdiction for good and sufficient cause shown shall otherwise direct. . . .” (Emphasis supplied).

Plaintiff made its demand for payment on April 9, 1968. However, plaintiff did not submit its certificate to the corporation for notation until May 7, 1968, some 27 or 28 days after the demand was made, thus not strictly complying with the statute. The statute referred to above, however, recites that the shareholder’s failure “so to do shall, at the option of the corporation, terminate his rights under Article 5.12 unless a court of competent jurisdiction for good and sufficient cause shown shall otherwise direct.” There is nothing in the record which indicates that at the time plaintiff failed to submit its certificate within 20 days after demanding payment, that defendant exercised its option to terminate but on the contrary, it appears that defendant waived the non-compliance by plaintiff.

In defendant’s original answer, it admitted that plaintiff was the only stockholder who had complied with Article 5.12 of the Texas Business Corporation Act. Defendant made no objection to plaintiff submitting its certificate for notation some 7 or 8 days after the times set out by the statute. In fact,- the defendant made the notation on plaintiff’s certificate and returned the same to plaintiff without making any exception or objection to plaintiff’s delay. Furthermore, the attorney for defendant during the initial period of the transaction leading up to its lawsuit testified as follows:

“Q I see. Now, with regard to the suit itself that was filed, ultimately filed by Waco Construction, Inc., under the — allegedly under the provisions of Article 5.10 through .14 of the Texas Business Corporation Act, at the time that you prepared and filed the answer for Parkview General Hospital, (defendant) did you calculate the timing of various requirements for a stockholder to use the provisions of this act? Did you check to see if they had filed what they were supposed to file within the time provided by the statute, 5.12, to be exact?
A Without going back and reviewing what the statute said at that time and says now, our firm was satisfied that there was legal compliance with the statute by the plaintiff. And so reflected in our answer.
Q That was what I was going to ask you next.
A Yes.
Q Didn’t your answer so specify that was the case?
A Yes.
Q All right.
A Well, I think your question, though, was did I sit down and calculate time and so forth.
Q Yes.
A We did do sufficient legal research that in our opinion the plaintiff had complied with the statute.”

It, therefore, appears that although plaintiff did not strictly comply with Article 5.13B, such non-compliance was expressly waived by defendant. The fifth point of error is overruled.

The judgment of the trial court is affirmed.


author: PEDEN, Justice.

text:
    Arthur MORELAND et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 16596.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 11, 1975.

      Roy L. Fuller, Baytown, for appellants.
    Carol S. Vance, Dist. Atty., Sara Bullock McIntosh, Gary DiBella, Asst. Dist. Attys., Houston, Walter E. Boyd, Houston, atty. ad litem, for appellee.
   PEDEN, Justice.

This suit was brought by the State to terminate the parent-child relationship between the appellants and each of their four children, Madeline Kay, Richard L., Emilie Jean and Joseph, and to place the children with Harris County Child Welfare Unit as managing conservator. After a non-jury hearing the trial judge terminated the appellants’ parental rights to the two younger children, Richard L. (born May 22, 1965) and Madeline Kay (born June 10, 1970); he appointed the Harris County Child Welfare Unit as managing conservator of the two older children, Emilie Jean (born on October 5, 1961) and Joseph (born on January 24,1960) and released them to possession of the appellants.

The State based its suit on Section 15.-02(1)(C) and (D) of the Texas Family Code. They provide:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that: (1) the parent has:
(C) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(D) engaged in conduct which endangers the physical or emotional well-being of the child;
and
(2) termination is in the best interest of the child.

Appellants complain that there was no evidence or factually insufficient evidence to sustain the trial court’s finding that the parents violated either of these sections of the Family Code. Findings of fact and conclusions of law were made by the trial judge. In deciding no evidence points of error we view the record in the light most favorable in support of the trial judge’s findings. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126 (1959). In reviewing factual sufficiency points of error we consider all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We affirm the judgment of the trial court.

We recently stated in D. F. v. State, 525 S.W.2d 933 (Tex.Civ.App., 1975, no writ):

The court’s “paramount concern is with the best interests of the children . There is a presumption that the interests of a young child are best served by award of its custody to its natural parents. The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible . . . ”
The burden of proof on the issue of the best interest of the child is upon the one seeking to deprive the natural parent of custody. Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex.1966). Before the drastic remedy of declaring a child dependent and neglected can be applied, the unfitness of the parent should clearly appear from the evidence. Martin v. Cameron County Child Welfare Unit, 326 S.W.2d 31, 36 (Tex.Civ.App.1959, writ ref’d n.r. e.). The evidence must be clear and convincing to give custody to another who is not the natural parent. Calhoun v. Ruffer, 425 S.W.2d 50 (Tex.Civ.App.1968, no writ). The evidence in the record authorizes the trial court to measure the appellant’s future conduct by her recent deliberate past conduct as it may be related to the same or a similar situation. De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361 (1960).

We summarize the evidence:

Officer Robert Douglas Knight of the Baytown Police Department was called by the State. On August 20, 1973, he answered a call to the Moreland residence complaining that one brother was hanging the other. The parents were not at home. He went to the house a second time after a call that the children were fighting and delivered the children into the custody of Child Welfare. The house was very disarrayed, with dirty clothes strewn around the living and bedroom areas, dirty dishes on the floor of the living room, and toys and other articles strewn around. Mrs. Moreland was arrested later that day for public drunkenness and again on September 2, 1973.

Appellant Mrs. Alice Moreland was called as an adverse witness. She is a housewife and has been married four times. Ait one time she filed desertion charges against her husband. She admits to having had a drinking problem in 1973, but denies having it now. Her husband beat her. on a few occasions in 1973, before they got their problems solved. Her explanation as to why no one was with the children when they were picked up was that someone was supposed to have been there but must have left. She had left them with a friend and gone downtown to the “No Tel” lounge, where she says she goes about once a month.

Appellant Arthur Moreland was called as an adverse witness. He is a machine operator for a plastics company and often has to work the night shift. He and his wife had separated at the time the children were picked up, and he had moved about three blocks away from his family. He says that in 1973 he beat his wife to “straighten her up” because she was drinking. Since he has had custody of Joseph, the boy has missed 79 out of 136 school days. He was sick quite a bit.

Jo Ann Tangedahl, a counselor at the Family Service Center and a social worker with three years’ experience and a master’s degree, testified that the appellants were motivated to get their children back but not to change their family relationships. She felt that counseling would not help them as they did not take it seriously. They can-celled many meetings and finally discontinued them. The family did a lot of laughing, and it was difficult to get them involved in counseling of any depth. The witness explained, on cross-examination, that the laughing was not just a demonstration of good humor. At one session Joseph said Jeannie had run off and gone swimming, so she should be punished. She should be tied up, put in a box and put into a freezer. He was laughing through all of this, and the witness found it inappropriate and frightening. She has never seen the children’s environment. She expressed the opinion that the parents love their children and have close family ties but feels they are too close. As children begin to mature they need to form their own identities. She believes the appellants do not have enough structure or discipline in their family, noting that they fail to set appropriate limits on the children’s conduct. She recommends that the two older children continue to live at home; they have already been through their formative years so they could not benefit by moving to another home, but the two younger ones would have a better chance, in another environment, to assume responsibility for themselves and to become socially functioning human beings. Return of the younger ones to the parents would undermine the progress they have made in foster care. She admits the separation is going to be hard on the family, but believes the family is functioning better now than when the children were taken away. This improvement is the basis for her opinion that the two older children have put out more effort and should be allowed to stay in the home.

Karen Coit, a school teacher, stated that Richard has made tremendous strides in all academic areas while in foster care. One example is that his reading level has progressed from 1.5 to 4. in less than a year. Dennis Lee Odie, the principal at Royal-wood Elementary School, said that when Richard came to his school he was approximately two years below grade-level. His progress is far above adequate. He has missed 9 days, mostly because of welfare appointments. Thomas Earl Langford, the attendance official for Goose Creek Schools in Baytown, said the attendance of all the Moreland children was poor since they had come to Baytown. During 1972-73 school year, Richard missed 35½ days. In the last year, when the oldest two children were in the custody of appellants, their attendance has been poor. Mrs. Moreland told him that they had been ill.

Elton Hill, the principal in a Goose Creek elementary school, stated that before Richard and Joseph were taken into custody their health was poor. Richard went to school barefoot even in the winter, and he was proud of his shoes when he was given some. He appears to be hungry, and his clothes were dirty. He ate everything put on his plate at school.

Glenn Lloyd Harrington, counselor at Horace Mann Junior High School, reported that of the last 145 school days, while Joseph and Emilie have been in the care of their parents, Joseph has been absent 89 days and Emilie has been absent 67. When Joseph was in temporary custody at the Burnett-Bayland Home, he was absent only 9 days out of 170. The clothing they wear to school is sub-par, mismatched and unclean. On cross-examination he stated the clothes meet the dress code and the parents have not been uncooperative.

Suzanne Ruckman, a graduate student who worked on this case for the Harris County Welfare Unit, said the Moreland home was in a state of disarray when she saw it. When Kay came into foster care (August or September 1973), she had sores on her body, her teeth were rotten, and she couldn’t sleep because her tonsils and adenoids were swollen. She couldn’t sit at the table, couldn’t feed herself and couldn’t talk. She couldn’t do most of the things three year old children normally do. She threw tantrums. Ms. Ruckman described the appellants’ resistance to her help. The children ate until they got sick when they first came into foster care. Later, she noticed evidence that the appellants were cleaning up their home. Kay grew from size three to size six in four months of foster care. She felt appellants had parental love for their children but a great deal of dependence on them.

Joy Koons, who has been a social worker for the Welfare Unit for a year and a half, stated that Richard’s self respect is now much higher than it was, that he now has pride and self control and he relates to his foster parents and communicates. He has friends in school. Kay also communicates now and is healthy. She couldn’t put words together well before she came into foster care. Koons felt that it would not be beneficial to put Kay and Richard in the custody of their parents. When all the children are together, they go wild on family visits. She realizes they are excited, but they seem to feel they don’t have to behave. She expressed the opinion, based upon her experience and knowledge, that the physical and emotional well-being of the children would be in danger in the Moreland home. The house is in a little better shape now, but if the children were returned she believes it would be too much for the parents to handle. The younger children have potential that will continue to develop, and they would be better off in foster care, but the older two children are past much of their lower development stages. She feels she has done everything she can but that the parents will not change. If the children aren’t allowed to develop through normal stages to adulthood, it is very possible they will become delinquents.

Several witnesses were called by the appellants. Arthur Moreland testified that it has been over two years since he and his wife have had marital difficulties and since he has overcome his alcohol problem. He and his wife are getting along fine now, and he loves his children. He has repainted every room in his house and has done everything the Welfare Unit asked him to do. The children’s poor school attendance was caused by illness, but he thinks that sometimes they were playing sick. He thinks Joseph missed the school bus 20 or 30 times. Richard had shoes, but he wanted to go to school barefooted. He took his shoes off when he got to school and left them outside. Mrs. Moreland stated her health has been poor recently, but she no longer has a problem with alcohol. Her weight has dropped from 165 pounds to 130 pounds since the children have been in Welfare custody. She has helped fix up her home and has cooperated with the Welfare people. She said she has no trouble controlling any of her children except Jeannie, who is at a bull-headed age. Since the children were picked up, the parents have made a third bedroom out of the den so the boys could have one bedroom and the girls another. Then Kay wouldn’t have to sleep with her parents. She thinks Emilie Jean plays sick to keep from going to school because she doesn’t like the teachers, but she is working with Emilie Jean on that. Joseph has actually been sick a lot. She thinks she went to Pasadena Family Counseling nine times.

Josey Mae Smith, a next-door neighbor of the Morelands, has never been in the More-land home but has visited with the family occasionally in her backyard. She said the children seemed happy, didn’t look hungry, and their clothing was as good as that of the other children. When Richard came home, he was happy to be with his family. A couple of years ago the police were at the Moreland’s house at least once or twice a week because of their marital problems, but she hasn’t seen them there lately. The family has improved in every way. Tom Murphy, an acquaintance of the family, stated he used to have a woodworking shop across the street from where Mr. Moreland works. He' saw him and some of his children almost every day. They dressed and looked like any other children.

Joy Koons was recalled and asked about specific failures of the Morelands to comply. She said the children are aggressive with their parents and with each other because no restraints are put on them. Joseph once attacked Richard and bit his ear. Emilie would sit on her father’s lap and hit at him, bullying him. The parents’ response to her pointing out specific behavior problems was, “That’s funny.” Mrs. Moreland once said her life with her brothers had been like hell and that she felt this was the way children were. The parents put the children down by continually calling them “bad” and “sick.” She tried to work with them to be more kind to each other and to build each other’s self-esteem. They didn’t ignore her advice, they just seemed to do things their own way. They didn’t seem to grasp what the witness was trying to do. Their behavior was often inappropriate. When told this, they would laugh. Joseph put down Emilie a lot, Emilie was hostile towards Kay, and Richard became withdrawn. She pointed this out to the parents and later they accused her of telling Richard that he was afraid of his parents. They turned things around. She gave examples of Mrs. Moreland’s fantasizing and exaggerating her own illnesses. She believes the children are pulled into this and that such behavior contributes to the children’s being “sick so often.”

Joy Koons related that Mrs. Moreland once told her that Emilie had been cut on the leg and had almost bled to death. The witness tried to find out how much blood there was and to deal with the facts that you don’t die from a little loss of blood and that children do get hurt sometimes. She tried to separate the facts from fantasies, the children’s illnesses from the parents’. Each time she would try to help them understand one problem they would bring up another. It was almost impossible to get them to change. She gave several other examples of inappropriate behavior which we think need not be detailed here. The Morelands kept repeating that they didn’t have any problems and everything would be all right when the children were back with them. It was a kind of a wall they built up. She concluded that her counseling did not help the Morelands, in terms of education. She concluded that the Morelands love their children, but that the roles have become reversed: the children are the parents and the parents are the children.

Joseph Moreland, who was 15 years old at the time of the hearing, said he preferred to be with his parents, as did Emilie Moreland, 13.

We have concluded that the evidence in this case supports the trial court’s termination of the parent-child relationship with Richard and Madeline Kay under paragraphs (C) and (D) of Section 15.02, Texas Family Code. In other words, the evidence supports the trial court’s findings of fact that the parents have knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger their physical or emotional well-being, that the parents have engaged in conduct which endangered the children’s physical or emotional well-being, and that termination of the parental rights of Alice and Arthur Moreland is in the best interest of Richard and Madeline Kay Moreland.

We think it clear that the evidence would support a conclusion that the well-being of Richard and Kay was in danger when the Welfare Unit received them in August 1973, and that the physical and emotional condition of both children had dramatically improved by the time of trial, some twenty months later.

The trial judge had an opportunity to view the parents’ demeanor during the trial, to weigh their testimony, and to examine their past deliberate conduct as a means of predicting their future behavior. They seem to have made improvements in some aspects, and it is agreed that they love their children, but the trial court was entitled to consider the facts related and the opinion testimony given by the three social workers who observed and counseled with the More-land family and who agreed that the parents’ relationship with the two younger children, whose ages at the time of trial were 9 and 4, had been harmful to them and would likely be harmful in the future if resumed.

Although there is no complaint about the trial court’s having declined to terminate the parent-child relationship as to the two older children, aged 15 and 13 on the trial date, we do not agree with the appellants’ view that it is inconsistent to find that the surroundings endanger the well-being of two of the children and not of the others. The trial court could accept the opinion testimony that the older children had passed their major development stages and the testimony that having two less children in the family markedly improved the prospect that the parents could control those in their care.

An attorney appointed to represent the children argues on appeal that the parents have engaged in delinquent conduct in the past but are rehabilitating themselves and that the Welfare Unit should continue to have custody of the two minor children until the parents have achieved and proved their rehabilitation. His principal arguments are that the Morelands’ parental rights not be terminated because (1) there was a violation of the children’s constitutional rights of due process, (2) the judgment was not justified because the evidence presented concerned a period too remote in time, and (3) the State has not yet sufficiently rehabilitated the parents.

We overrule these arguments. As to the first, we find no failure to afford due process. The second argument is without merit because the Welfare Unit’s witnesses testified to events indicating a continuation of the parents’ problems to within six months of the trial date. As to the third, the proper issues before the court were the conduct of the parents and the best interests of the children, not whether the State has made enough effort to rehabilitate. Further, the only testimony on this matter is opinion evidence that further rehabilitation efforts would not be productive.

The appellants argue, by supplemental brief, that the trial court erred in rendering judgment for the Harris County Child Welfare Unit because no guardian ad litem was appointed to represent the children. Appellants rely on this provision of the Texas Family Code, § 11.10 (which was in effect from January 1, 1974, until amended, effective September 1, 1975):

(a) In any suit in which termination of the parent-child relationship is sought, the court shall appoint a guardian ad litem to represent the interests of the child, unless the child is a petitioner. In any other suit under this subtitle, the court may appoint a guardian ad litem

The court records reflect that on August 27, 1973, the trial judge entered an order placing immediate custody of all four of the Moreland children in the Harris County Child Welfare Unit, fixing the time and place for a hearing so the parents could show cause why the children should not remain in the temporary custody of the Welfare Unit, and stating that “An attorney, Walter Boyd Jr. is appointed by the Court to represent said minor child at all hearings in accordance with statutory authority of Articles 695c-2 and 2330, Y.A.T. S.”

We find no reference in Art. 695c-2 or in Art. 2330, both of which were repealed effective January 1, 1974, by Title 2 of the Texas Family Code, to any authority to appoint someone to represent minor children at hearings to determine whether they were dependent and neglected. Art. 2332, however, provided that when such cases were filed, “In case neither of the parents or guardian is found, then the court shall appoint some suitable person to represent said child in said cause.” The trial court’s order did not state whether Mr. Boyd was being appointed as a guardian ad litem or as an attorney ad litem. The fact that he is an attorney would not be determinative of his capacity.

In Sheehan v. Southern Pacific Co., 422 S.W.2d 948 (1967, writ ref. n.r.e.), Chief Justice Bell, writing for this court, stated that when a trial court, acting under Rule 173, Texas Rules of Civil Procedure, appointed a disinterested person to represent a mentally incompetent person in the suit, it was not fatal for the trial court to designate the appointee as an “attorney ad li-tem” although Rule 173 provided that under certain circumstances the court “shall appoint a guardian ad litem.” See also Peterson v. Peterson, 502 S.W.2d 178 (Tex.Civ.App.1973, no writ).

It is interesting to note that paragraph (a) of § 11.10 of the Family Code was amended, effective September 1, 1975, to add a provision that in suits of this nature the court need not appoint a guardian ad litem to represent the child if an attorney ad litem has been appointed for the child and need not do so if “the court finds that the interests of the child will be represented adequately by a party to the suit and are not adverse to that party.

Affirmed.


author: HALL, Justice.

text:
    TRAVIS COUNTY BAIL BOND BOARD, Appellant, v. Frank SMITH, Appellee.
    No. 5514.
    Court of Civil Appeals of Texas, Waco.
    Dec. 11, 1975.

      Ned Granger, Philip R. Lerway, Austin, for appellant.
    Gibbins & Spivey Associated, Inc., Austin, for appellee.
   HALL, Justice.

The take-nothing judgment in question stems from the failure of the appellant to adduce any proof after the trial court ruled contrary to the appellant’s contentions, that an appeal from an order of a County Bail Bond Board revoking a license to execute bail bonds is an appeal de novo and is not a review under the substantial evidence rule. We agree with the ruling and affirm the judgment.

Article 2372p-3, Vernon’s Tex.Civ.St., is a comprehensive Act controlling the business of executing bail bonds, including the licensing and regulation of bail bondsmen, through County Bail Bond Boards in counties of 150,000 or more population. The appellant, created under this Act, granted a license to the appellee to execute bail bonds in Travis County, then revoked it on the basis of four asserted violations under the Act. The appellee appealed to the District Court, denying the violations.

Provisions for appeal by a bail bondsman whose license is revoked is made in § 11 of the Act as follows:

“Court review
“Sec. 11. An appeal may be taken from any board’s order revoking, suspending, or refusing to issue a license. The appeal must be made within 30 days after written notice of the suspension, revocation, or refusal by filing a petition in a district court in the county in which the license is issued or refused. If no appeal is taken within 30 days after written notice of suspension, revocation, or refusal, such action shall become final. An appeal shall be by trial de novo, as in proceedings appealed from justice to county courts. The decision of the board shall have full force and effect pending the determination of the appeal. All appeals taken from actions of the board shall be against the board and not against the members individually.”

In the district court the appellant took the position, as it does here, that insofar as the Act provides for the appeal to be de novo it is violative of § 1 of Article 2 of Vernon’s Ann.Tex.Const. It refused to adduce proof on the non-jury hearing, contending the matter was a legislative one and that the review must be made under the substantial evidence rule. Judgment was accordingly rendered that the appellant “take nothing,” leaving the appellee’s license in force.

§ 1 of Article 2, Vernon’s Ann.Tex.Const., provides as follows:

“The powers of the government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

The precise question for our decision, then, is whether the revocation of a bail bondsman license by a County Bail Bond Board involves the exercise of a judicial or legislative function. If the former, trial de novo is proper on appeal; if the latter, review of the revocation must be made under the substantial evidence rule, and the provision in the statute for a de novo appeal is unconstitutional. Gerst v. Nixon (Tex.Sup., 1966) 411 S.W.2d 350. The appellant relies primarily on the decision in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959). The appellee relies primarily on the case of Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961).

In Key Western, the State Board of Insurance affirmed an order of the Commissioner of Insurance disapproving a policy form submitted by Key Western. Under Article 3.42(f) of the Insurance Code, disapproval of a policy form was authorized “if, and only if, (1) It is in any respect in violation of or does not comply with this Code. (2) It contains provisions which encourage misrepresentation[s] or are unjust, unfair, inequitable, misleading, deceptive . ” Key Western appealed to the district court. The statutory standard of review was worded much like ours, providing it “shall not be limited to questions of law and the substantial evidence rule shall not apply, but such action shall be tried and determined upon a trial de novo to the same extent as now provided for in the case of an appeal from the Justice Court to the County Court.” However, on the appeal the district court disregarded' the statute and reviewed the matter under the substantial evidence test, over Key Western’s objection. On a direct appeal to our Supreme Court, it was held that Key Western was entitled to a trial de novo in the district court. In the course of its decision, the Court examined various tests and definitions that have been employed by the Courts in determining whether a given function is legislative or judicial, including the following:

“A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and its end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.” Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150.
“It has been stated that the nature of the final act and the character of the process and operation, rather than the general character of the authority exercised, is determinative. The action of an administrative body or officer is adjudicatory in character if it is particular and immediate, rather than, as in the case of legislative or rule-making action, general and future in effect.” 73 C.J.S. Public Administrative Bodies And Procedure § 8, p. 306.

The Court then reasoned that under the Insurance Code the Insurance Board was not to have broad legislative discretion; that it was empowered to disapprove a policy form for certain specific reasons only and not to dictate to the insurance companies the particular form to be used; that “its only duty is to determine whether the form of the policy submitted for its approval meets the standards prescribed by the statute”; and that its action “ ‘is particular and immediate, rather than, as in the case of legislative or rule-making action, general and future in effect.’ ”

In Davis v. City of Lubbock, our Supreme Court was concerned with the constitutionality of a section in the Urban Renewal Act which, like the Act before us, called for a de novo, judicial review of the City’s designation of an area within its boundaries as a “slum or blighted area.” The court noted that, by statute, the decision as to whether an area was a “slum” or “blighted” under the Urban Renewal Act turned on findings that the area is one “which is detrimental to the public health, safety, morals or welfare of the city” and is “a menace, in its present condition and use, to the public health, safety, morals or public welfare of the city”; based upon such evidentiary matters as “predominance of either residential or nonresidential buildings or improvements which are in a state of dilapidation, deterioration, or obsolescence due to their age, or for other reasons”; “inadequate provisions . . . for open spaces”; “conducive to high population densities and overcrowding of population”; “conducive to the ill-health of the inhabitants of the area or to the transmission of disease, and to the incidence of abnormally high rates of infant mortality”; “conducive to abnormally high rates of crime and juvenile delinquency”; “results in a condition in that area which substantially retards or arrests the provisions of a sound and healthful housing environment”; “results in and constitutes an economic or social liability to the city”; etc. The court concluded that a decision by the City that a particular area is a “slum” or “blighted” under the statute is “political in nature, and involves questions of public policy” and is “thus made to rest upon a finding involving legislative discretion”; and held that the provision in the Act for a review by trial de novo was unconstitutional because it “would clearly involve the exercise by the courts of nonjudicial powers.”

The grounds for, and the procedure for, the revocation of a license once granted under the Act in question are set forth in §§ 9 and 10 thereof, as follows:

“Refusal and revocation of licenses
“Sec. 9. (a) No license may be issued to any person who:
(1) is bankrupt or insolvent; or
(2) has had his license revoked for default upon a bond and has not satisfied the obligation of the bond.
(b)Any license may be suspended or revoked by the board for:
(1) violation of the provisions of this Act;
(2) fraudulently obtaining a license under the provisions of this Act;
(3) conviction under the laws of this or any other state or of the federal government of a misdemeanor involving moral turpitude or of a felony;
(4) being adjudged bankrupt or becoming insolvent;
(5) failing to pay within 30 days any final judgment rendered on any forfeited bond in any court of competent jurisdiction within this state;
(6) failure to pay, in addition to the principal amount of a forfeited bond, all necessary and reasonable expenses incurred by all peace officers in arresting the principal on any bail bond executed by him, in the event the principal fails to appear as required by law;
(7) a licensee’s paying commission or dividing commissions or fees with any person, company, firm, or corporation not permitted hereunder to execute bonds or in any manner passing anything of value to any person for referrals of bond business; or
(8) soliciting bail bond business in any building where prisoners are processed or confined.
“Procedure for suspension or revocation of license
“Sec. 10. (a) The board may revoke or suspend a license in accordance with the procedure provided in this section for the violation of any provision of this Act.
(b) Notice of a hearing to suspend or revoke shall be given by certified mail addressed to the last known address of the licensee at least 10 days prior to a date set for the hearing.
(c) The notice shall specify the charges of violation of this Act made against the licensee, and no other charges shall be made at the hearing pursuant to the notice.
(d) The hearing shall afford to the licensee opportunity to be heard, to present witnesses in his behalf, and to question witnesses against him.
(e) A record of the hearing shall be made. It shall be made available to the licensee on his request subject to his paying reasonable costs of transcription.”

These statutes do not picture a discretionary venture by the County Bail Bond Board, nor the exercise by it of a legislative rule-making power. Rather, they detail a proceeding and a purpose that are adjudicatory in character. The decision called for by these statutes has an immediate, specific impact on the particular parties involved, as opposed to the formulation of general, futuristic public policy. Clearly, the decision is judicial in nature. Its review, therefore, must be by trial de novo.

The appellant asserts that the provision in the Act that the decision of the Bail Bond Board “shall have full force and effect pending determination of the appeal” is in irreconcilable conflict with the provision therein for de novo appeal, if the latter is valid; and that both must therefore fall; citing Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619. The appellee asserts there is no conflict, citing State Board of Medical Examiners v. Mann (Tex.Sup., 1967) 413 S.W.2d 382.

In Southern Canal, the pertinent statute first called for a trial de novo as in an appeal from a Justice of the Peace Court to the County Court upon a preponderance of the evidence, and then called for the evidence to be judged “as to the reasonableness” of the Board’s order “upon the facts found therein.” The Court held that because the first part dictates that the Board’s order be a nullity upon the filing of the appeal in the courts, and the second part requiring a review of the validity and reasonableness of the order “negatives any idea that the Board’s order is vacated or nullified,” the statute was inoperative and void.

In Mann, the statute provided for a Justice Court/County Court appeal de novo, but provided, also, that “the decision of the Board shall not be enjoined or stayed except on application . . . ” The Court noticed its decision in Southern Canal; but recognizing its duty “to harmonize the inconsistent provisions, if possible, and thus give effect to both,” the court held that “the language of the statute means that enforcement of the Board’s order is not suspended pending trial of the case in District Court unless the court issues its injunction or stay order.”

It is readily apparent that our statute is more akin to the statute in Mann than to the one in Southern Canal, and that it bears the construction placed on the Mann statute.

The appellant’s points and contentions are overruled. The judgment is affirmed.


text:
    FRONTIER MOBILE HOMES et al., Appellants, v. Martha MEADOWS, Appellee.
    No. 5523.
    Court of Civil Appeals of Texas, Waco.
    Dec. 11, 1975.

      Mac L. Bennett, Jr., Normangee, for appellants.
    L. L. Green, Groesbeck, for appellee.
   HALL, Justice.

This is a venue ease. Mrs. Martha Meadows brought this suit in Leon County against Frontier Mobile Homes, M. J. Scarmado, and Celtic Corporation, pleading that Celtic manufactured a mobile home which was sold and delivered to her by Frontier and Scarmado; that the mobile home was defectively constructed of deficient materials with poor workmanship; and that Frontier and Scarmado negligently damaged the mobile home in several particulars while delivering it to the plaintiff’s premises in Leon County. Alternatively, she alleged that the defendants conspired to sell her a cheap and defective mobile home, misrepresented the unit as fit for human occupance and use when it was not, and committed a fraud upon her in Leon County. She seeks the recovery of damages in the sum of $17,817.20 from the defendants, jointly and severally. Frontier and Scarmado filed pleas of privilege to be sued in Brazos County, the asserted county of their residences. Mrs. Meadows controverted the pleas, contending that under the terms of Subdivisions 7 and 9a of Article 1995, Vernon’s Tex.Civ.St., the suit is maintainable in Leon County against these defendants. After a hearing without a jury, the court overruled the pleas of privilege. We affirm.

Subdivision 7 of the venue statute permits an action based upon fraud to be brought in the county where the fraud was committed; and subdivision 9a allows a suit based upon negligence to be brought in the county where the proof shows the negligent act or omission occurred, provided the proof shows, further, that such negligent act was that of the defendant in person, or that of his servant, agent or representative acting within the scope of his employment, and that the negligent act was a proximate cause of the plaintiffs damages.

No exceptions were filed to any pleadings, and the sufficiency of the pleadings is not in issue. However, by appropriate points of error, Frontier and Scarmado question the legal and factual sufficiency of the evidence to support the implied findings of venue facts necessary to sustain the court’s order under either subdivision.

The record reveals the following facts by way of evidence and inferences in support of the findings: Frontier is a partnership. Scarmado is a partner and owns one-half of Frontier. He is its business manager. Both Frontier and Scarmado are residents of Bryan in Brazos County. On March 29, 1978, Mrs. Meadows purchased a mobile home from Frontier, at Frontier’s office in Bryan. She bought the home for her use in Leon County. A few days later, Scarmado went to Mrs. Meadows’ place in Leon County, and she showed him how he should approach her land when delivering the mobile home to avoid hazards such as terrain, fences, trees, and ditches. On April 17, 1973, Scarmado and a man named Bynum, who was employed by Frontier for the purpose, delivered the mobile home onto Mrs. Meadows’ property. In doing so, they disregarded her instructions, and approached from another direction. They caused the mobile home to go into a ditch and fall against a telephone pole and a culvert; and this in turn caused extensive damage to the unit. If Scarmado and Bynum had followed her instructions this accident, which occurred in Leon County, would not have happened. Mrs. Meadows testified that the unit delivered to her in Leon County was not the one she purchased from Frontier at Bryan. She said the mobile home she bought “was supposed to have been a new one. I paid for a new one,” but that the one delivered to her “was not like a new trailer . . . . [I]t is patched up and the doors are old and the inside doors are old and there are a lot of things to make a person think it was either done over or it had been used”; that in the one she purchased “there was a place for a deep freeze in the kitchen. This one doesn’t have it. The front bedroom was carpeted and this one is not . . . . The paneling is old. The doors are old and the inside doors and the front outside door was old and had to be exchanged before I could even close it. It was all weather-warped on the outside . . It was not like a new trailer.”

This evidence is legally sufficient to support implied findings that while Scarmado and Bynum were moving the mobile home onto Mrs. Meadows’ property in Leon County they negligently failed to follow her directions and the way agreed upon by her and Scarmado, and negligently failed to keep an adequate lookout for the ditch, the post, and the culvert; and that this negligence proximately caused the accident in which the mobile home was damaged. It is also legally sufficient to support the implied finding that the mobile home delivered to Mrs. Meadows was a used unit and not the new one purchased and paid for by her. This constitutes the commission of a fraud upon her by Frontier and its agents at the place of delivery in Leon County. A review of the whole record convinces us that these findings are not against the great weight and preponderance of the evidence.

The appellants’ remaining points and contentions are also without merit. All are overruled. The judgment is affirmed.


author: MOORE, Justice.

text:
    Gary L. ROYE, Appellant, v. Deborah Thedford ROYE, Appellee.
    No. 862.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 11, 1975.

      Ben E. Jarvis, Tyler, for appellant.
    Ray G. Thurmond, Mike Hatchell, Ramey, Flock, Hutchins, Grainger & Jeffus, Tyler, for appellee.
   MOORE, Justice.

This is an appeal from a divorce decree. Appellee, Deborah Thedford Roye, brought suit seeking divorce from appellant, Gary L. Roye. Appellant did not contest the divorce, and the parties stipulated that appel-lee be appointed managing conservator and agreed to the amount of child support. The only issues in dispute related to the division of property and attorney fees. The parties had incurred a substantial amount of debt and the court appointed a receiver to sell the parties’ real and personal property in order to pay off the debts. After the property was sold and debts paid, the receiver deposited $10,962.48 with the court for it to divide between the parties. Trial was before the Court of Domestic Relations of Smith County, without a jury, and judgment was entered granting appellee a divorce. Under the decree, appellee was awarded a 1970 Buick Riviera automobile and all household furnishings in her possession in Longview, Texas. Appellant was awarded a 1970 Ford pick-up truck, household furnishings in his possession in Tyler, Texas, and all stock of the Craig Funeral Home, Inc., Tyler, Texas, standing in his name. Both parties were awarded one-half of the residue of the $10,962.48 fund, held by the court, following the payment of $5,000.00 attorney fees to appellee’s attorney. Appellant has perfected this appeal and brings forth six points of error directed at the division of the property and the award of appellee’s attorney fees.

At the outset we are met with appellee’s motion to dismiss the appeal. By her motion, appellee asserts that appellant is es-topped to question the judgment, because appellant, by accepting and retaining the benefits accruing to him under the judgment has waived his right of review. We think this contention must be sustained.

Appellee’s motion, duly verified, sets out that after this appeal had been perfected, appellant requested the District Clerk of Smith County to pay over to him the total amount of the $10,962.48 fund held by the court to which appellant was entitled under the divorce decree. Pursuant to this request, the Clerk tendered and appellant accepted the sum of $2,946.49, representing appellant’s one-half of the residue of the fund after deducting appellee’s attorney fees. These facts as set out in appellee’s motion have not been disputed by appellant. We must therefore proceed on the assumption that the facts as stated in the motion are true. Bowling v. State, 353 S.W.2d 893 (Tex.Civ.App., Amarillo 1962, no writ); Latimer v. State, 328 S.W.2d 242 (Tex.Civ.App., Beaumont 1959, writ ref’d n. r. e.).

In Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950), the Supreme Court said:

“A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. That is the general rule which appears to be universally recognized. It was announced by this court in the early case of Matlow v. Cox, 25 Tex. 578. The rule is based on the principle of estoppel. It, however, is subject to the exception that ‘ * * * where the reversal of a judgment cannot possibly affect an appellant’s right to the benefit secured under a judgment, then an appeal may be taken, * * 2 Am.Jur., Appeal and Error, Sec. 215. Numerous authorities, approaching the exception from a slightly different angle, define it, in effect, in this language: Where an appellant accepts only that which appel-lee concedes, or is bound to concede, to be due him under the judgment he is not estopped to prosecute an appeal which involves only his right to a further recovery. Embry v. Palmer, 107 U.S. 3, 2 S.Ct. 25, 27 L.Ed. 346; Hodges v. Smith, 34 Tex.Civ.App. 635, 79 S.W. 328, error dismissed; Tyler v. Shea, 4 N.D. 377, 61 N.W. 468, 50 Am.St.Rep. 660; Bass v. Ring, 210 Minn. 598, 299 N.W. 679, 169 A.L.R. 980.
“The exception is narrow. Whether or not this case falls within it must be determined from answers to these questions: Could a reversal of the portions of the judgment referred to in these two certified questions possibly affect appellant’s right to the benefits secured by him under the judgment? And would appellee be compelled to concede upon another trial that appellant has the right to retain those benefits regardless of the outcome of the litigation?”

As we view the record, the facts of this case bring it within the rule rather than any of the exceptions. We cannot perceive that appellee would be compelled to concede upon another trial that appellant has the right to retain the Ford pick-up truck, the household furniture and the $2,946.49 which he has voluntarily withdrawn from the registry of the court. Further, it does not appear that appellant is entitled to the $2,946.49 and the other property in his possession as a matter of law.

It is well settled that the method of dividing the property of the divorcing parties under section 3.63 of the Texas Family Code is within the sound discretion of the court after taking all relevant property interests into consideration. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); In Re Marriage of Jackson, 506 S.W.2d 261, 265 (Tex.Civ.App., Amarillo 1974, writ dism’d); Womble v. Womble, 502 S.W.2d 886, 888 (Tex.Civ.App., Fort Worth 1973, no writ). The statutory language directs the court to divide the property in a manner that the court deems just and right. Tex. Family Code Ann. sec. 3.63 (1974). Under this statutory directive, neither party is necessarily entitled to insist upon a certain amount of property, either community or separate, as a matter of right. Mahrer v. Mahrer, 510 S.W.2d 402, 404 (Tex.Civ.App., Dallas 1974, no writ); Zaruba v. Zaruba, 498 S.W.2d 695, 698 (Tex.Civ.App., Corpus Christi 1973, writ dism’d); In Re Marriage of McCurdy, 489 S.W.2d 712, 716, 717 (Tex.Civ.App., Amarillo 1973, writ dism’d). If the case was remanded appellee would not be compelled to concede that appellant is entitled to the $2,946.49, the Ford pickup truck and the household furnishings as a matter of right. Neither would appellant be entitled to that specific property as a matter of law. Upon a new trial the court would still be free to divide all the property as it deemed just, subject only to review for abuse of discretion. McCurdy, supra. Appellant might or might not receive the same property as he was awarded under this divorce decree. The fund from which appellant withdrew the $2,946.49 was created by the sale of property appellant maintains was his separate property as well as community property. Having accepted the fruits of the judgment we think that appellant is estopped to prosecute this appeal complaining of the court’s division of the property. Carle v. Carle, supra; Richards v. Richards, 430 S.W.2d 18 (Tex.Civ.App., Tyler 1968, writ ref’d n. r. e.); Nixon v. Nixon, 348 S.W.2d 438 (Tex.Civ.App., Houston 1961, writ dism’d).

Accordingly, the appeal is dismissed.