author: YOUNG, Justice. PER CURIAM.

text:
    Ramon RUENES, d/b/a Gulf Drive-In Theatre, Appellant, v. NUECES COUNTY, Appellee.
    No. 1336.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 29, 1978.
    Order March 31, 1978.

      Pedro P. Garcia, Corpus Christi, for appellant.
    Michael J. Westergren, County Atty., Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from the granting of a temporary injunction. On December 2, 1977, appellee, Nueces County, through its county attorney, brought this suit for a temporary and permanent injunction against appellant, Ramon Ruenes, d/b/a Gulf Drive-In Theatre to prevent him from displaying obscene films. The action was predicated upon Tex.Rev.Civ.Stat.Ann. art. 4667 (Supp.1978) and a common law nuisance theory. On December 28, 1977, the district court of Nueces County heard the application for temporary injunction. The matter was heard without a jury and after hearing evidence, the trial court granted the injunction based upon Article 4667 and common law principles. Ruenes appeals.

The record on appeal consists of a transcript and a document entitled “A Condensed Statement of Facts in Narrative Form.” The condensed statement was filed pursuant to the order of this Court published concurrently with this opinion. No findings of fact or conclusions of law were requested or filed, and thus, the trial court’s judgment must be upheld on any legal theory supported by the record. Davis v. Huey, 22 Tex.Sup.Ct.J. 8, 571 S.W.2d 859 (Oct. 7, 1978).

Appellant brings three points of error. In evaluating the alleged errors we are guided by certain rules. Appellate review of an order granting a temporary injunction is strictly limited to a determination of whether there has been a clear abuse of discretion. Davis v. Huey, supra. The trial court abuses his discretion if he grants an injunction when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953). To furnish a reasonable basis for the conclusion, the evidence need not establish that the applicant will finally prevail in the litigation, but it must, at the very least, tend to support a right of recovery. Camp v. Shannon, supra at 519, Moore v. State, 470 S.W.2d 391 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.).

Appellant’s first point contends that the trial court erred in accepting the testimony of a Doctor Joseph Rupp as an expert in determining the moral standards of the community. Appellant’s argument only pertains to whether the trial judge abused his discretion in finding a probable right of recovery. On appeal from an order granting a temporary injunction the judgment of the trial court will be presumed to be correct until the contrary is shown. Beene v. Bryant, 201 S.W.2d 268 (Tex.Civ.App.— Amarillo 1947, no writ). Appellant has failed to show the contrary.

Even if we were to assume that the trial court abused its discretion in admitting the expert testimony of Doctor Rupp, we must presume on appeal that the court did not consider any inadmissible evidence in granting the temporary injunction. Valley International Properties v. Los Campeones, 568 S.W.2d 680, 689 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.).

Under the appellant’s first point he also argues that the trial court failed to view the films and that this is reversible error. We find no indication in the record that this argument was presented in the trial court and it cannot be brought up for the first time on appeal. Valley International Properties v. Los Campeones, supra at 687-88. Appellant’s first point is overruled.

Appellant’s second point contends the court should not have issued the injunction because the appellee possessed an adequate remedy at law; i. e., arresting the appellant. We think the applicant for an injunction pursuant to Article 4667 need not show the absence of an adequate remedy at law. West Texas Utilities Co. v. Farmers’ State Bank, 68 S.W.2d 648, 649 (Tex.Civ.App.—Eastland 1934, no writ); See also Biggs v. Red Bluff Water Power Control Dist., 131 S.W.2d 274 (Tex.Civ.App. —El Paso 1939, writ ref’d). Moreover, we consider arrest of the appellant an inadequate remedy at law. Ex Parte Allison, 99 Tex. 455, 90 S.W. 870 (1906); Clopton v. State, 105 S.W. 994 (Tex.Civ.App.—1907, no writ). Appellant’s second point is overruled.

Appellant’s third point contends the judgment of the trial court represents a prior restraint and prior censorship of his movies, and would prohibit his showing “R” and “PG” rated movies.

Neither appellant’s pleadings nor the condensed statement of facts contain any reference to this prior restraint argument. It cannot be raised for the first time on appeal. Valley International Properties v. Los Campeones, supra.

The second part of appellant’s argument, contending that the judgment would prevent his showing “R” and “PG” rated movies, cannot be evaluated because the condensed statement of facts contains no evidence of what standards are used to classify “R” or “PG” rated films or the types of nudity or sexuality, if any, may be portrayed in such movies. Appellant’s third point is overruled.

The judgment of the trial court is affirmed.

ORDER

PER CURIAM.

Appellant filed a condensed narrative statement of facts in this cause on February 21, 1978, pursuant to Rule 377(a), T.R.C.P. Appellee replied by filing its Objections to Proposed Statement of Facts with the District Clerk of Nueces County and by sending an unsigned copy to the Clerk of this Court on February 27, 1978. In its objections, appellee offered corrections and amendments, and prayed that the condensed statement of facts in narrative form be corrected to conform with the stated changes.

The appellant subsequently appeared before the Clerk of this Court and agreed to the corrections presented by appellee. On March 8, 1978, counsel for appellant signed the copy of the Objections to Proposed Statement of Facts with the notation, “I hereby agree to include this in statement of facts.” The following day, March 9, 1978, counsel for appellee, Nueces County, signed the same copy of the objections.

Rule 377(a) provides that an opposing party, if dissatisfied with the condensed narrative statement of facts, may require that the testimony be in question and answer form and be substituted for all or part thereof. The rule does not suggest any other alternative means (such as corrections or amendments) for the opposing party to remedy his dissatisfaction. The intent of the rules as expressed in Rules 370, 377(a), 377(b), 377(e), and 378, however, is to shorten the record and encourage agreement between the parties as to the testimony presented. We are of the opinion that the narrative statement of facts, as corrected, complies with the rules and should be filed.

We therefore order that the statement of facts in this cause, consisting of the condensed narrative statement of facts prepared by appellant, together with the corrections offered by appellee and subsequently accepted by appellant be filed as the statement of facts in this case. Such is ordered filed as of March 9, 1978.


source: Caselaw Access Project

author: YOUNG, Justice. NYE, Chief Justice,

license: Public Domain

text:
    John BARROW, guardian ad litem for Deanne Hammaker and Daniel Hammaker, minors, and Co Le-Thi Hammaker, Appellants, v. Jack E. DURHAM and wife, Lavonne Durham, and the Nueces County Child Welfare Unit of the State Department of Public Welfare of Texas, Appellees.
    No. 1299.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 29, 1978.
    Rehearing Denied Dec. 29, 1978.

      Rene Whittle, Corpus Christi, for appellants.
    H. R. Lockington, Asst. County Atty., Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This appeal arose from a judgment dismissing a bill of review which judgment held that the plaintiffs lacked standing to bring the cause. Plaintiffs, appellants herein, John Barrow as guardian ad litem for Deanne and Daniel Hammaker, minors, and Co Le-Thi Hammaker, the natural mother of Deanne and Daniel, initiated the bill of review to overturn a prior judgment of adoption entered on July 9, 1976, granting parental rights in Deanne and Daniel Hammaker to appellees, Jack E. and Lavonne Durham. Appellees interposed a plea in bar asserting: that Co Le-Thi Ham-maker had no standing to bring the suit because she was not a party to the adoption proceeding and had no interest in the children because on October 8, 1974, all of her parental rights in the children had been terminated in a proceeding under Tex.Laws 1973, ch. 543, §§ 15.01-15.07, at 1426-29; and that Barrow, as guardian ad litem, did not have standing to represent Deanne and Daniel because he had been appointed guardian ad litem for the two children in the prior parental rights termination suit and his interest in the children ended at the conclusion of the termination suit.

Without receiving any evidence and considering only the pleadings in this suit and the record in the prior termination suit the trial court sustained the Durham’s plea in bar and dismissed the bill of review action.

The bill of review alleges that Barrow, as guardian ad litem in the termination proceeding, did not receive notice of the adoption though he was entitled to be notified because his representative capacity was never formally terminated. It also alleges that the children, who were five years old at the time of the adoption proceeding, were not properly represented by counsel at the adoption hearing and that appellants would have presented the defense that it was in the best interest of the children to be returned to their natural mother, Co Le-Thi Hammaker. Moreover, it alleges that the State Department of Public Welfare did not lay the infants’ case properly before the court in that it merely consented to adoption by the appellees, when it would have been in the best interests of the children to return them to their natural mother.

Appellants bring four points of error. Points 3 and 4 contend the trial court erred in finding that Co Le-Thi Hammaker (3) was not a party to the adoption and (4) possessed no standing to file the bill of review.

Usually, in order for a party to possess standing to file a bill of review, he must be a party to the prior judgment, or one who had a then existing interest or right which was prejudiced thereby. 4 McDonald, Texas Civil Practice § 18.26 (1971).

The decree of adoption makes no reference to appellant, Co Le-Thi Hammaker as a party. Indeed, she was not even entitled to notice of the adoption proceeding. Tex. Fam.Code Ann. § 11.09(a)(7) (Supp.1978). Concerning any interest she might have had, the record is clear that all of her rights and interests in both Deanne and Daniel were terminated in the prior termination order, and thus she had no interest in the adoption. Tex.Laws 1973, ch. 543, § 15.07 at 1429; Rogers v. Searle, 533 S.W.2d 440 (Tex.Civ.App.—Corpus Christi 1976, no writ). Appellants’ point 3 is overruled. Point 4 will be further discussed later in this opinion.

Appellants’ points 1 and 2 contend the trial court erred in holding (1) that John Barrow as guardian ad litem for the children in the termination suit was not a party to the adoption suit and (2) that he had no standing to contest it by bill of review.

The record discloses that Barrow as guardian ad litem was not a party to the adoption. A guardian ad litem’s interest is limited to matter connected with a suit in which he is appointed. Wright v. Jones, 52 S.W.2d 247, 251 (Tex.Com.App.1932, holding approved). See Annot, 115 A.L.R. 571 (1938). The question, then, is whether the suits for termination and adoption were separate and distinct suits. Appellant argues that the provision for continuing jurisdiction, in essence, makes the entire proceeding one suit from the time of termination to the time of adoption. Tex.Fam. Code Ann. § 11.05 (Supp.1978). We disagree. Only in a jurisdictional sense are all actions part of the same suit. Baker v. Seaver, 567 S.W.2d 854, 856 (Tex.Civ.App.—Eastland 1978, no writ). The Family Code has made it very clear that except for motions to modify as provided in Tex.Fam. Code Ann. § 14.08 (Supp.1978), all requests for further action concerning a child are new suits. See Tex.Fam.Code Ann. § 11.07 (Supp.1978); see also Smith, Commentary on Title 2 Parent and Child, 8 Tex.Tech L.Rev. 19, 29-30 (1976). The language in Tex.Fam.Code Ann. § 11.10(a) & (c) also reflects the legislative determination that any suit in which termination of the parent-child relationship is sought, is a suit separate from other suits. The courts have also concluded that a termination judgment is a final irrevocable decree. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.Sup.1976); Baggett v. State, 541 S.W.2d 226 (Tex.Civ.App.—Tyler 1976, no writ). Accordingly, we hold that Barrow’s appointment as guardian ad litem in the termination suit ended when the judgment rendered in that suit became final, and that he was not entitled to be a party to the adoption proceeding merely because he had been appointed guardian ad litem in the prior termination suit. Appellants’ point 1 is overruled and we will dispose of their point 2 in the following discussion.

All of which brings us to further consideration of appellants’ points 2 and 4 regarding their standing to file a bill of review. In addition to the rights appellants assert in their capacities as alleged in the trial court and on appeal, the appellants make extended argument concerning the basic rights which were denied the children. In sum, they contend that it is mandatory for a child to be represented by counsel at an adoption proceeding in which the guardian ad litem’s (here the Nueces County Child Welfare Unit) interests are adverse to those of the child. They cite for example Rule 173, T.R.C.P., and Sims v. State Department of Public Welfare, etc., 438 F.Supp. 1179, 1194 (S.D.Tex.1977). In this regard, they point to the instant record which shows that the children were not represented by counsel at the adoption proceeding and that only a representative of the Nuec-es County Child Welfare Unit of the State Department of Public Welfare of Texas was present to represent their interests. Appellees, on the other hand, assert that a child is not entitled to mandatory representation by counsel in any adoption proceeding and cite in support thereof Rethaber v. Bauman, 433 S.W.2d 721 (Tex.Civ.App.— San Antonio 1960, no writ). Rethaber is distinguishable, though, in that the court there limited its holding to the situation before it, which involved maternal and paternal grandparents in a dispute over the adoption of grandchildren. No mention was made of any conflict in interest between the child and the grandparents. So, if it can be shown that the State Department of Public Welfare’s interests are adverse to those of the child, it would be an abuse of discretion for the trial judge to fail to appoint a different guardian ad litem. See Family Tex.Fam.Code Ann. § 11.10 (Supp.1978); Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 156 S.W.2d 265, 267 (Tex. Com.App.1941, opinion adopted); compare Sims v. State Dept, of Public Welfare, etc., supra. If this fact is shown along with a meritorious defense and exhaustion of legal remedies, a bill of review should be sustained. See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). Furthermore, if it can be shown that by collusion, neglect, or mistake, the State Department of Public Welfare did not lay the infants’ case properly before the court, the adoption may be set aside by bill of review. See Missouri-Kansas-Texas R. Co. of Texas v. Pluto, supra. Thus, the appellants have alleged some facts both in the trial court and on appeal which if proven would entitle them to a sustaining of their bill of review. The question, then, is whether the appellants possessed standing to bring the bill of review.

Within the context of this appeal, appellants’ arguments are those which would be asserted by someone acting in the capacity of next friend to the minor children. In the capacity of next friend, Barrow or Co Le-Thi Hammaker would have standing to present the interests of the children in a bill of review. This is so because in any action involving their custody, the children are the real parties in interest. C_ v. C_, 534 S.W.2d 359 (Tex.Civ.App.—Dallas 1976, no writ).

Although no point of error or pleading directly and specifically asserted either Barrow’s or Co Le-Thi Hammaker’s status as a next friend in bringing this action, we think that in matters concerning support and custody of children the paramount concern is the best interest of the children and the technical rules of pleading and practice are not of controlling importance. Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.Sup.1967); Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d). Accordingly, we hold that the failure of Barrow and Co Le-Thi Hammaker to use the phrase “next friend” in the trial court and on appeal is not controlling. Rather, the assertion of the children’s interest as if they were their next friends does control. 30 Tex.Jur.2d Infants § 64 (1962). Either Barrow or Co Le-Thi Hammaker had the right to sue as next friend of the children herein. See Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ. App. — Corpus Christi 1967, writ ref’d n. r. e.). And, just because they did not use the phrase “next friend” in pleading or on appeal should not preclude the appellants’ assertion of the children’s interest. 43 C.J.S. Infants § 267b (1978); see also Spears Dairy v. Davis, 124 S.W.2d 159 (Tex.Civ.App.—Beaumont 1939, no writ). Appellants’ points 2 and 4 are sustained.

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

NYE, Chief Justice,

concurring.

I concur in the result but for a different reason. This case involves the lack of representation of two minor children whose interests were adverse to the child welfare agency and the adoptive parents. Approximately 8 to 10 years ago, Co Le-Thi Ham-maker, a Vietnamese national, and her husband, Donald Hammaker, a United States serviceman, came to the United States from Viet Nam. Deanne and Daniel, twins, were born to the Hammakers in the United States.

Co Le-Thi and her husband had many marital difficulties primarily because Donald was unable to secure and maintain employment and because Co Le-Thi was unable to communicate with him and others. Co Le-Thi noticed a big change in Donald’s behavior after he arrived in the United States. She was completely dependent upon him for food, clothing and shelter. She did not speak English and had difficulty comprehending the language. Four and one-half years ago, Donald picked up all eight of Co Le-Thi’s children in the state of Ohio and abandoned them at a Catholic children’s center in Corpus Christi. Co Le-Thi had a great deal of difficulty in understanding what took place with her children then and thereafter. She was never provided an interpreter to communicate with her in her native tongue to explain American culture, society or court procedures. Donald’s erratic behavior caused the local child welfare agency to take charge of the children. Co Le-Thi became dependent upon the Nueces County Child Welfare and Texas Department of Public Welfare for subsistence.

Temporary orders were issued in August of 1973 in Cause No. 119,012 by the presiding judge of the Domestic Relations Court of Nueces County. The children were placed temporarily in the custody of the Nueces County Child Welfare Unit. The Hon. Don Chrestman, attorney, was appointed guardian ad litem to represent the interests of the children. In 1974, Judge Thomas, the Domestic Relations Judge, appointed the Hon. John Barrow, another attorney, guardian ad litem and dismissed Mr. Chrestman from his duties. No other guardian or attorney has ever been appointed to represent the children’s interests, and no order has been entered releasing or discharging Mr. Barrow from his duties as guardian.

In the hearing in August of 1974, the Child Welfare Unit presented testimony showing Co Le-Thi’s financial inability to care for her children, her complete dependency upon her husband for everything, and his complete unfitness as a father to raise the children and his unfitness as a husband for Co Le-Thi. The Domestic Relations Judge entered an order terminating the rights of both parents and placed restrictions upon the placement of the children in order to allow Co Le-Thi an opportunity to provide a home for the children and to work with the Child Welfare Unit in this regard. The continuing type order specifically provided that the Child Welfare Unit should not place the children outside the City of Corpus Christi or for adoption for a period of six months after August 28, 1974. This proviso, according to the Domestic Relations Court, was for the purpose of continuing to work with the mother of said children in efforts to provide a home for all or some of her children. The order then provided that subsequent to the date of six months following August 28, 1974, all restrictions on the Nueces County Child Welfare Unit as managing conservator would terminate. There was no follow-up hearing to determine whether Co Le-Thi was providing the home family relationship suggested by the trial judge. No appeal was taken from this order.

The twins, Deanne and Daniel, were placed in the home of the appellees. Co Le-Thi visited the children and baked Vietnamese dishes for them. Later she was discouraged from visiting with them by the Nueces County Child Welfare Unit. The appellees wrote to her expressing their hope that she could be reunited with all of her children.

In September of 1975, in the same cause number (119,012), the Domestic Relations Court restored to Co Le-Thi her parental right to three of her older children. John Barrow as attorney ad litem participated, signed and approved the order on behalf of the children. John Barrow was not discharged from his duties.

In October of 1976, Co Le-Thi was again reassured by the Nueces County Child Welfare Unit that Deanne and Daniel’s custody was still an open matter and that in time all of her children would be returned to her. By this time, six of her children had been returned to her care, although only three had been restored to her officially by the Domestic Relations Court.

In March of 1977, the 105th District Court, a different court and judge but still in the same cause number (119,012), restored three more of Co Le-Thi’s children to her. It was at this hearing in 1977, that an employee of the Child Welfare Unit informed Co Le-Thi that the appellees had adopted Deanne and Daniel in July the previous year. The adoption was handled in the same cause as all of the other proceedings and bore the same cause number (119,012), as the original and all subsequent proceedings. However, the record shows that neither Co Le-Thi nor the guardian, John Barrow, had been notified of this purported adoption. This Bill of Review resulted. The trial court held that John Barrow had no standing and was not entitled to notice of the adoption hearing.

The guardian, John Barrow, asserts here on appeal that Deanne and Daniel were not represented by a guardian, an attorney, or by a next friend, and that he as their guardian and attorney would present a meritorious defense to the proposed adoption had he been notified by the Child Welfare Unit or the trial court that such was going to take place.

There is a fundamental right emanating from our Constitution that protects the integrity of the family unit. Sims v. State Dept. of Public Welfare, etc., 438 P.Supp. 1179 (1977). The integrity of this particular family unit began with the filing of Cause No. 119,012 in 1973. The Domestic Relations Court recognized the adverse interests existing as to the children when it originally appointed a guardian ad litem. The trial court reaffirmed this interest in the minor children when it discharged the original guardian and appointed John Barrow the succeeding guardian. Although I agree generally that the term “ad litem” limits the appointment to the term of the litigation of the suit for which the guardian is appointed, this particular appointment did not necessarily end at the conclusion of the trial court’s first order divesting Co Le-Thi from her parental authority over the children. The Texas Courts have uniformly treated family matters involving minor children as a continuing type of litigation. Although this interlocutory type order was final to the extent that an appeal could have been had, the trial court considered it as continuing by its subsequent orders as to the other children, by its subsequent recognition of John Barrow as guardian thereafter at other hearings, and by treating all of such hearings, including the adoption, under the same continuing cause number (119,-012). There is no question but that the Nueces County Child Welfare Unit treated all of this as a continuous case.

The integrity of the family unit has always found protection in the due process clause and the equal protection clause of the 14th and 9th amendments to the United States Constitution. Here the competing interest for these children was of paramount importance. The Nueces County Child Welfare Unit, as managing conservator, had an adverse interest to that of the natural mother; to that of the adoptive parents; and to that of the adoptive children. The right of these children and their mother as individuals to be heard at the adoption hearing would have been of little avail, when they could neither comprehend the proceedings nor did they have counsel to comprehend for them. A child’s interest is generally distinct from the interest of the child welfare agencies, the natural parents, or the adoptive parents.

Although I agree that this case must be reversed and the cause remanded, it must be pointed out that when different courts and different judges enter different orders concerning different children, but all from the same family unit in the same continuous cause numbered case, the integrity of such orders must be subject to examination and protection by our courts especially when no attorney was present representing such children or the natural mother.

Although the Domestic Relations Court purported to divest the natural mother of her parental rights on the one hand, it suggested to her and the Nueces County Child Welfare Unit on the other hand that Co Le-Thi could, and maybe should, have all of her parental rights restored to her. As this was taking place, the adoption of two of her children was concluded without notice. It is easy under the facts of this case to see the injustice afforded this stranger in our country.

Since all the proceedings were handled in cause numbered 119,012, it was a simple matter for the trial judge to see that a guardian had been appointed originally; and that subsequent hearings (with the guardian present) had taken place concerning these children, even after the reputed end of the litigation had taken place (where Co Le-Thi’s parental rights had been taken away). In obedience to the original order suggesting to the Child Welfare Unit that it should work with the natural mother, it is obvious to me that such unit’s interest in divesting its managerial conservatorship over the twin children to the adoptive parents was adverse to that of these minor children and to the natural mother as a matter of law.

The Supreme Court of the United States has recognized many times the importance of the child to its parent and the protection that is available in such cases. For instance the Supreme Court said in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972):

“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed.2d 1042 (1923), ‘basic civil rights of man,’ Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113,86 L.Ed. 1655 (1942) and ‘rights far more precious . than property rights,’ May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, 262 U.S. at 399, 43 S.Ct. at 626, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U.S., at 541, 62 S.Ct., at 1113, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).”

In this case, John Barrow the guardian, should have participated or have been discharged and another attorney appointed in his place. Whether it was collusion, neglect, or mistake, the Nueces County Child Welfare Unit did not lay the children’s care properly before the court, or the trial court would not have gone forward in the adoption hearing without the presence of John Barrow the guardian.


author: HALL, Justice.

text:
    CITY OF HOUSTON, Appellant, v. SAM P. WALLACE & CO. et al., Appellees.
    No. 5844.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1978.
    Rehearing Denied Dec. 21, 1978.

      Robert M. Collie, Jr., City Atty., Dale M. Tingleaf, Asst. City Atty., Houston, for appellant.
    Robert L. Adams, Wyckoff, Russell, Dunn & Frazier, Simeon T. Lake, III, Fulbright & Jaworski, John A. Barker, Gripp, Walden & McClure, Houston, for appellees.
   HALL, Justice.

On October 19, 1971, an explosion and fire damaged the equipment in a high-voltage electrical switchgear cabinet located in the Central Chilled and Hot Water Plant at the Houston Intercontinental Airport, an airport owned and operated by appellant City of Houston (hereinafter “City”). At that time appellee Sam P. Wallace & Co. (“Wallace”), under contract with City, was constructing certain additions to the Central Chilled and Hot Water Plant. Appellee Precision Insulation Company (“Precision”) was Wallace’s subcontractor on the job. Maurice Little (“Little”), an employee of Precision, was standing on the switchgear box at the time of the explosion and fire and suffered personal injuries. City sued Wallace and Precision for the damages to its electrical switchgear pleading negligent causation against them. In another suit, Little sought recovery of damages against Wallace, asserting his personal injuries were caused by Wallace’s negligence. The eases were consolidated for trial after which Wallace and Precision each pleaded for contribution and indemnity against the other. Wallace also pleaded for contribution- and indemnity against City for any recovery by Little against Wallace. The consolidated case was tried to a jury.

After the parties had rested their proof, but before arguments to the jury, Little and Wallace entered into a settlement agreement. City was not told of the settlement. Little remained in the case and argued to the jury. After argument, but before verdict, Little took a nonsuit in his case against Wallace. City’s counsel was not present in the courtroom when the non-suit was taken, but his absence is not explained in the record. Thereafter, the jury returned their verdict which was favorable to both Wallace and Precision on the liability issues against them by City. Judgment was rendered on the verdict that City take nothing. The judgment also recited Little’s nonsuit of Wallace.

By way of motion for mistrial prior to judgment and motion for new trial after judgment, City asserted that it first learned of the settlement agreement and the non-suit after verdict when a form-judgment was circulated; that a part of the consideration for the settlement agreement was that Little’s attorney would argue against City and in favor of Wallace on City’s issues against Wallace; that Little’s attorney did so and thereby “deceived the jury into believing that Little had changed his position from that during trial and had been persuaded that Wallace had not, after all, been responsible for or negligently caused the fire in question, and therefore added unfairly to the weight of the argument against City’s position on the issues”; that if City had known of the settlement prior to argument “it would have offered evidence to such effect so as to allow the jury to know the inducement for co-plaintiff’s argument and City would further have objected to any argument by co-plaintiff”; that the trial tactic employed by Little and Wallace of settlement and then argument by Little’s attorney in favor of Wallace and against City after Little’s “change of posture, alignment and pecuniary interest” without City’s knowledge violated “the fundamental rule of law whereby a party is entitled to inform the jury or finder of fact of the pecuniary interest each adverse party has to the outcome of the case”; and that such action denied City a fair trial and caused rendition of an improper verdict and judgment against City.

City’s motions were overruled. It assigns error to those rulings for reversal of the judgment and reasserts the complaints set forth in the motions. However, City concedes in its brief that Little’s counsel “could have argued in the manner in which he did had it been in his interest as an advocate to do so, or, had he even done so mistakenly”; and it also admits that it knew during the latter portion of the jury argument by Little’s counsel that Little’s “alignment [against Wallace] was disturbed,” and that at that time “it became readily apparent that plaintiff Little had switched sides.” Basically, City’s complaints are these: (1) If City had known of the settlement prior to verdict it would have offered that fact for the jury’s consideration to explain the argument to be made by Little’s counsel; and (2) the “secret settlement agreement and resulting jury argument” were a conspiracy by Little and Wallace against City, and they were “so patently unfair and obviously prejudicial” to City that they caused an improper verdict and judgment. We overrule those contentions and affirm the judgment.

The written settlement agreement between Little and Wallace reads in full as follows:

“The undersigned attorneys, after careful review and consideration of all the evidence presented in the case of MAURICE LITTLE YS. SAM P. WALLACE & CO., being tried in the 61st Judicial District Court, have agreed that the evidence is so strong that the SAM WALLACE CO. was not at fault in causing the fire in question, thus the best interest of MAURICE LITTLE will be served if he makes a nominal settlement with the SAM P. WALLACE CO. And thus, MAURICE LITTLE, by his undersigned attorney hereby agrees to settle his case with SAM P. WALLACE & CO. for the sum of $3,200.00, for the approximate amount of his out of pocket expenses.”

On the hearing of City’s motion for new trial, Little’s lawyer testified as follows: “When I settled with Wallace, I agreed primarily not to argue against Wallace. I wanted to see what kind of damages the jury would give me specifically to pain and suffering and mental anguish, which I argued, as well as medical and lost wages. I wanted to argue those to the jury, but I did not stress negligence on the part of Wallace or anyone else for that matter. Whether I was going to argue favorably or unfavorably with regard to the City was not discussed at the time of settlement. The primary thing was that I was not going to argue negligence against Wallace. The real consideration for my settlement was the fact that I would not argue negligence against Wallace. That was the consideration for my settlement. The agreement with Wallace was not at all concerned with the manner I intended to argue any of the issues relating to Precision because I had no issues against Precision. I also had an agreement with City that City would not argue against Little, but City breached this agreement by arguing that Little was negligent when he stepped on top of the main switchgear box.” The testimony of Little’s counsel to the effect that he agreed only to not argue against Wallace, and that there was no agreement that he would argue for Wallace or against City, was corroborated by the testimony of Wallace’s attorney. There was no testimony that Wallace’s lawyer secured or even sought a promise from Little’s attorney to keep the settlement agreement and their discussions secret from City.

The evidence adduced at the hearing on City’s motion for new trial supports implied findings by the trial court that the only promise made by Little’s attorney relating to jury argument when the settlement agreement was reached was simply that he would not argue negligence against Wallace, and that the settlement was not a stratagem born of a conspiracy between Little and Wallace to deny City a fair trial.

To avoid frustrating the policy favoring the settlement of lawsuits, it is the general rule in Texas that a settlement agreement between some of the parties in a multi-party lawsuit should be excluded from the jury. Miller v. Bock Laundry Machine Co., 568 S.W.2d 648, 652 (Tex.1978); General Motors Corp. v. Simmons, 558 S.W.2d 855, 857 (Tex.1977); McGuire v. Commercial Union Insurance Co., 431 S.W.2d 347, 352 (Tex.1968). An exception to that rule is a “Mary Carter” settlement agreement whereby the settling defendant acquires a direct financial interest in the settling plaintiff’s lawsuit. “That kind of interest is a proper subject of cross-examination and proof” at the trial to show bias and motive on the part of the settling defendant when it attempts to prove misconduct by the nonsettling defendant. General Motors Corp. v. Simmons, supra. In our case Wallace did not acquire any interest in Little’s lawsuit by the settlement agreement, and Little acquired none in Wallace’s cross-action against City. The settlement agreement between them would not have been admissible at any stage of the trial. Miller v. Bock Laundry Machine Co., supra. Accordingly, City cannot base its claim for reversal on the ground that it was denied the opportunity to offer the settlement into evidence before the jury.

Within the bounds of propriety attorneys must have latitude in making tactical decisions affecting the best interests of their clients in the trial of cases. General Motors Corporation v. Hebert, 501 S.W.2d 950 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref’d n.r.e.). The settlement agreement in question falls within the rule, and we see nothing improper in it. Nevertheless, common fairness dictated that City should have been told of the settlement agreement and all of its terms. The case had reached the final opportunity for the parties to persuade the jury to their theories and views of the evidence, and knowledge or not by City of Little’s intended argument on the issues could have affected City’s tack and emphasis on the issues in its argument, although City has not asserted that it did. Little should not have remained in the case after settlement without divulging the settlement agreement and its terms to City.

The question remains whether City was so prejudiced by Little’s and Wallace’s actions that a new trial must be granted. We hold it was not.

The electrical switchgear box in question was in the form of abutting metal cabinets without inner sides where they joined, with a narrow crack from front to back across the top at the joinder. Chilled water pipes constructed by Wallace passed over the switchgear box. At the time of the fire, Precision was in the process of insulating the pipes. Little was standing either directly on top of the box or on boards which spanned the top of the box and rested on its sides. The top was made of sheet metal, but its sides were made of heavy steel. Little had not been on the box more than two minutes when the accident occurred.

City’s actions against Wallace and Precision went to the jury upon theories that a short time prior to the fire Wallace had operated the chilled water lines without insulation, that water was caused thereby to condense on the pipes, and that the condensing water dripped onto and into the switchgear box causing the high-voltage electrical equipment in the box to arc, explode, and burn; or that Little’s standing on the box caused water which had dripped from the pipes onto the top of the box to suddenly “surge” into the box and produce the arcing, and that Precision had directed Little to stand on the box. Wallace’s and Precision’s defensive issues to the jury were to the effect that the fire was caused by City’s operation of the electrical equipment in an overloaded condition, and that it was caused by City’s failure to properly maintain the electrical equipment in a safe condition, and that if chilled water was run through the pipes prior to insulation it was done at City’s request. Little’s cluster of issues against Wallace dealt with whether or not Wallace had negligently failed to provide Little with a safe place to work and with certain safety equipment.

On the issues between Wallace, Precision, and City, the jury failed to find that Wallace operated the chilled water lines before they were insulated; found that Little was directed by Precision to stand on the electrical switchgear cabinet, but that such action was not negligence; found City was damaged in the exact amount asserted by it; failed to find that City operated the electrical equipment in an overloaded state; and failed to find that City failed to properly maintain the electrical equipment in a safe condition.

Under the evidence, the jury would have been justified in finding that the explosion and fire were caused by any of the reasons advanced by City or Wallace and Precision. It could also have believed from the evidence that the fire resulted from insulation failure on wire in the switchgear cabinet, or that the true cause of the occurrence was destroyed by the resulting fire and is unknown and cannot be learned.

City does not argue that the jury’s answers to the issues are against the great weight and preponderance of the evidence; and they are not.

Little’s lawyer complied with his agreement with Wallace, and in his argument played down the likelihood of Wallace’s negligence on the issues between Wallace and City. Nevertheless, in the light of the whole record, which we need not detail, it is our view and holding that the improprieties committed by Wallace and Little did not cause an improper verdict and judgment in this case. Excepting answers to issues upon which the proof was virtually undisputed, the jury’s answers were equally divided in number with and against recommendations made by Little’s counsel. The record does not establish that his argument appreciably affected the jury’s answers complained about by City, and City’s contrary contentions are overruled.

Finally, City argues that City and Little were rigidly aligned as “co-plaintiffs” against Wallace and that Little’s “new alignment” during argument damaged City’s case against Wallace with the jury. This contention is overruled. City and Little were not that close, and the jury would have known they were not. Insofar as the jury knew at the time of argument, City faced possible liability for part of any damages awarded to Little against Wallace, under Wallace’s cross-action. Also, to reach Precision, City was required to first establish negligent causation against Little. In violation of its agreement not to argue negligence against Little (according to the testimony of Little’s attorney, supra), City opened its argument by vigorously asserting that Little acted imprudently and unreasonably when he climbed onto the switchgear cabinet, that he thereby caused a “deluge of that water” to enter the cabinet, and that the cause of the explosion and fire was “a combination of a man and water.” The jury would have known of the adversary status between City and Little during the proof, the arguments, and their deliberation. Under the record, it is doubtful that the jury’s answers against City were based upon the asserted capitulation by Little.

The remaining points and contentions of the parties are rendered immaterial by the above holdings and need not be discussed.

The judgment is affirmed.


author: SPURLOCK, Justice.

text:
    GREATER FORT WORTH and Tarrant County Community Action Agency v. George MIMS.
    No. 18027.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 30, 1978.
    Rehearing Denied Dec. 28, 1978.
    Robert S. Williams, Fort Worth, for appellant.
    Salvant, White & Fleming, and Donald J. Fleming, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

A nonprofit corporation appeals from a trial court order placing its board of directors in receivership under Art. 1396-7.05 .

We affirm.

The Greater Fort Worth and Tarrant County Community Action Agency is a Texas nonprofit corporation. Its purpose is to assist the indigent citizens of Tarrant County, Texas. When this controversy began, George Mims was the agency’s executive director. The agency’s board of directors held a meeting and voted to terminate Mims’ employment. Mims refused to relinquish his position claiming the action of the board violated the agency’s bylaws.

The agency sued Mims to enjoin him from acting as the executive director. The trial court issued a temporary restraining order restraining Mims from acting as executive director and from going on the agency’s premises. After a nonjury hearing, the court issued a temporary order enjoining Mims from acting as the director and from going on the agency’s place of business. Mims did not appeal the temporary injunction.

Although neither party pled or otherwise requested a receiver be appointed, the trial court in its temporary order placed the agency’s board of directors in receivership. A receiver was appointed to conduct meetings to fill vacancies on the board of directors to bring its membership in compliance with the bylaws, and then to elect agency officers which would decide whether Mims should be terminated or retained.

The agency appealed from the order appointing a receiver. Its points of error present three basic contentions.

The agency’s first contention is the appointment was error because it was made by the court on its own motion.

This was not error because a trial court has the discretion to appoint a receiver on its own motion. Crawford v. Crawford, 163 S.W. 115 (Tex.Civ.App.—Texarkana 1913, no writ).

The agency’s second contention is the appointment was error because Mims lacked standing to request it. Mims concedes that he is a mere employee and not a shareholder-member of the agency or member of the board except he is an ex officio member entitled to vote by virtue of his office. Therefore, we can assume, without deciding, that he would not have standing to complain about procedural irregularities in the board’s management of the agency. However, since the trial court had the discretion (and used it) to make the appointment on its own motion, no error is shown.

The agency’s third contention is the appointment was error because there is no evidence which supports the appointment under any statutory or common law scheme of receiverships. Implicit in the agency’s argument is the complaint that the trial court abused its discretion in making the appointment because it is unauthorized. The appointment was made pursuant to Art. 1396-7.05 * which provides in part as follows:

“A. A receiver may be appointed for the assets and business of a corporation by the district court for the county in which the registered office of the corporation is located, whenever circumstances exist deemed by the court to require the appointment of a receiver to conserve the assets and affairs of the corporation and to avoid damage to the parties at interest, but only if all other requirements of law are complied with and if all other remedies available either at law or in equity, including the appointment of a receiver for specific assets of the corporation, are determined by the court to be inadequate, and only in the following instances:
“(1) In an action by a member when it is established:
“(a) That the corporation is insolvent or in imminent danger of insolvency; or “(b) That the directors are deadlocked in the management of the corporate affairs and the members are unable to break the deadlock, and that irreparable injury to the corporation is being suffered or is threatened by reason thereof; or
“(c) That the acts of the directors or those in control of the corporation are illegal, oppressive or fraudulent; or “(d) That the corporate assets are being misapplied or wasted.
“(2) In an action by a creditor when it is established:
“(a) That the corporation is insolvent and that the claim of the creditor has been reduced to judgment and an execution thereon returned unsatisfied; or “(b) That the corporation is insolvent and the corporation has admitted in writing that the claim of the creditor is due and owing.
“(3) In any other actions where receivers have heretofore been appointed by the usages of the court of equity.”

The agency claims there is no evidence which authorizes the appointment under this article. Mims concedes that neither subsection (1) or (2) apply to this case. However, he claims subsection (3) authorizes the appointment. We agree.

Subsection (3) authorizes appointments of receivers in any action where receivers have heretofore been appointed by courts of equity. The agency states that it has found no case where a receiver has been appointed under the same or similar circumstances. The agency would have us reverse because no case authority has been found. This we decline to do.

The agency would read the “heretofore been appointed” language of the subsection as requiring prior case authority before it authorizes an appointment. This construction is too narrow. We construe it as invoking the trial court’s common law equity powers and authorizing an appointment under circumstances where the appointment would be proper at common law. The propriety of an appointment should not depend on whether another court had appointed a receiver under the same or similar circumstances.

The Tex.Bus.Corp. Act Ann. art. 7.05 (Supp.1978), governing profit making corporations is virtually identical to Art. 1396-7.-05 *. Art. 1396-7.05 * has been construed as authorizing the appointment of a receiver whenever the circumstances are deemed by the court to require it. King Commodity Company of Texas, Inc. v. State, 508 S.W.2d 439 (Tex.Civ.App.—Dallas 1974, no writ). In essence this construed the article as applying common law equity principles. It would indeed be anomalous for us to construe Art. 1396-7.05 * to preclude application of the same principles.

We recognize that, at common law, receivership is a drastic remedy and the appointment of a receiver will be reversed where no evidence supports it. Zanes v. Lyons, 36 S.W.2d 544 (Tex.Civ.App.—Dallas 1931, no writ). Where the trial court appoints a receiver it is presumed the court acted fairly and according to law, and that proper and sufficient grounds existed. Scott v. Sampson, 333 S.W.2d 220 (Tex.Civ.App.—Fort Worth 1960, writ ref’d n. r. e.). This is especially the case where the court made the appointment on its own motion. Since receivership is an equitable remedy within the sound discretion of the trial court, an appointment will not be disturbed on appeal unless the record reveals a clear abuse of discretion. Strategic Minerals Corp. of America v. Dickson, 320 S.W.2d 882 (Tex.Civ.App.—Austin 1959, writ ref’d n. r. e.).

We find that the evidence in the case presented the trial court with the following situation. The agency invoked the equity jurisdiction of the court by seeking an injunction. The agency is a nonprofit corporation formed under federal guidelines. It is funded with federal tax dollars and is thus entrusted with public funds to assist the indigent. The agency concedes that, although its bylaws require a minimum of 42 directors, it had only 32 directors at the time in question. Therefore, the agency was acting in violation of its bylaws. There was also an indication that persons were voting at the meetings of the directors who were not directors. As previously noted Mims appears to lack standing to complain of his termination. There is also evidence that the unresolved controversy over Mims’ status created confusion within the agency.

Faced with this situation the trial court appointed a receiver to reconstitute the membership of the board of directors and resolve the question of Mims’ termination. In applying Texas law the court in Meis v. Sanitas Service Corporation, 511 F.2d 655, 658 (5th Cir.1975) quoted the rule which upholds the action of the trial court. “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.”

We find that the action of the trial court is the precise use rather than abuse of discretion which equity demands. Certainly no harm or abuse has been shown by the fashioning of a remedy bringing the agency into compliance with its bylaws and settles the underlying dispute at the same time.

All points of error presented in complaint of the trial court’s order have been considered and each is overruled. The order of the trial court is affirmed.

       All statutory references are to Tex.Rev.Civ.Stat.Ann.


author: RAY, Justice.

text:
    BRITISH AMERICAN INSURANCE COMPANY, Appellant, v. Joseph R. COFFMAN, Appellee.
    No. 8631.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 5, 1978.
    Rehearing Denied Jan. 3, 1979.
    C. Cary Patterson, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellant.
    Sherman A. Kusin, Harkness, Friedman, Kusin & Hooper, Texarkana, for appellee.
   RAY, Justice.

This is a workman’s compensation case. Appellant (plaintiff), British American Insurance Company, brought suit against ap-pellee (defendant), Joseph R. Coffman, seeking to set aside the award of the Industrial Accident Board of the State of Texas. Appellee Coffman filed a cross-action seeking compensation for his alleged total and permanent disability. Following a jury verdict finding appellee Coffman to be totally and permanently disabled, the trial court entered its judgment accordingly. Appellant insurance company has perfected its appeal and submits two points of error for our consideration.

The judgment of the trial court will be reversed and the cause remanded for a new trial.

Appellant’s two points of error assert that the trial court erred in excluding evidence of the previous criminal record of appellee Coffman. Appellant made a Bill of Exceptions which reveals that Coffman entered a plea of guilty to possession of heroin and theft in October of 1977. Coff-man stated that the theft charge was dismissed. Possession of heroin is a crime involving moral turpitude. It is not clear that the theft charge was dismissed because Coffman testified that he received probation for both offenses.

Coffman was injured on November 19, 1976, while working for Austin Bridge Company. He testified that he was helping to build a bridge, slipped and fell thirty-five feet to the ground, landing flat on his back. No other witnesses were called to verify the accident. As indicated, in October of 1977, appellee Coffman entered his plea of guilty to two charges involving moral turpitude. The trial of the present case took place on January 30,1978. A witness’s prior conviction of a felony is admissible as impeachment evidence, if the felony is one involving moral turpitude and is not too remote. The conviction must have been sufficiently recent in time to have some bearing on the present credibility of the witness. Landry v. Travelers Insurance Company, 458 S.W.2d 649 (Tex. 1970).

Approximately four months had elapsed between appellee’s entering his plea of guilty in the criminal cases and the beginning of the trial in the present case. It is our opinion that the pleas of guilty entered by appellee to crimes involving moral turpitude were so near in time to the civil trial as to be admissible as a matter of law. Since the pleas of guilty were so near in time to the civil trial as to be admissible as a matter of law, the trial court was without discretionary power to exclude such evidence and therefore abused its discretion in so doing under the facts and circumstances here presented. Landry v. Travelers Insurance Company, supra.

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


author: PHILLIPS, Chief Justice.

text:
    Joan R. Cobb SIMPSON, Appellant, v. Orrin D. WILLIAMS et ux., Appellees.
    No. 12793.
    Court of Civil Appeals of Texas, Austin.
    Dec. 6, 1978.

      Dale E. Muller, Austin, for appellant.
    Benjamin J. Cuba, Temple, for appellees.
   PHILLIPS, Chief Justice.

Appellant brought suit for specific performance of an option contract alleging that she had complied with the terms of the contract but that appellees refused to convey certain property to her. Alternatively, she sought reformation of the contract due to mutual mistake.

Pursuant to trial before a jury which returned findings adverse to appellant, the trial court entered judgment that appellant take nothing by her suit.

We affirm that judgment.

In October of 1971, appellant entered into a contract with appellees to buy a house and approximately seven acres of land in Bell County. In consideration for an increase in the purchase price, appellees made the October 25 earnest money contract subject to appellant obtaining an option to buy an additional fourteen acres of land adjacent to the seven acres that went with the house. The earnest money contract provided that the option would contain an expiration date of November 1, 1976.

On December 16, 1971, the parties closed the transaction as to the house and the seven acres and also executed a document, prepared by appellees’ attorney, entitled “Option to Purchase Real Property.” This option was drafted with an expiration date of August 31, 1976. Appellant contends that both parties were unaware of the change in the expiration date of the option, and executed the agreement without discovering the mistake.

Appellant contends that in July of 1976 she decided to exercise the option and, at that time, on reading the contract, she discovered that the expiration date had been changed. She testified that on August 27, 1976, she wrote a letter accepting the option, addressed it to appellees, and posted it in the mail with proper postage. At the same time, according to her version of the facts, she sent a copy of the letter to an attorney, Mr. Ted Potter. Appellees maintain that they never received the letter. After waiting a few days, appellant mailed another acceptance letter on September 7, 1976. Although it is undisputed appellees received the latter notification, they refused to honor it because it was untimely.

Appellant is before this Court on several points of error, the first being the alleged error of the court in overruling appellant’s motion for judgment notwithstanding the verdict, because the evidence proves conclusively that there was a mutual mistake concerning the option agreement’s expiration date.

The jury found that appellant did not give written notice on August 27, 1976, as required by the option. Next, the jury found that the parties thereto had not agreed that the expiration date should have been November 1, 1976. The final issue as to mutual mistake was not answered by the jury, as it was conditioned upon an affirmative answer to the second issue stated immediately above.

In order for this Court to reform the contract as sought by appellant based upon mistake, there must be clear, exact and satisfactory proof that the mistake was mutual. Pegues v. Dilworth, 134 Tex. 169, 132 S.W.2d 582 (1939). We are faced with a strong presumption in favor of the instrument as written and we must look at the evidence very carefully before we change the contents of the written instrument and overturn the jury’s finding. Carson v. White, 456 S.W.2d 212 (Tex.Civ.App.1970, writ ref’d n. r. e.). The requirement of clear and convincing proof of a mutual mistake is not negated by the fact that appel-lee’s attorney drafted the option contract. This has some bearing on the question whether appellant proved mutual mistake but is not decisive. Smith v. Hutchins, 129 S.W.2d 1200 (Tex.Civ.App.1939, writ dism’d jdgmt. cor.).

Although appellees’ testimony concerning their intent as to the terms of the option contract was somewhat confusing and inconsistent, this merely created a question of fact for the jury. See Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957); 62 Tex.Jur.2d Witnesses § 371 (1965). There was testimony by both appellees that supports the jury’s finding.

Mr. Williams stated on examination that the option contract represented the agreement with appellant. Mrs. Williams gave an affirmative answer to the question whether the option contract is the same document she intended to sign. Both appel-lees denied finding any mistakes in the option contract. As a result, we hold that the jury finding that the parties did not intend November 1 as the expiration date for the option contract is not against the great weight and preponderance of the evidence.

We also hold, in response to appellant’s second point of error, that the finding of the jury that notice of the exercise of the option was not timely mailed is not against the great weight and preponderance of the evidence. There is conflicting testimony as to whether notice was mailed by August 31, 1976. Appellees contend the only letter they received from appellant was dated September 7, and that they did not receive a letter dated August 27. They also testified that they had had no difficulty receiving mail.

Appellant contends that notice was mailed August 27. Her testimony was supported by attorney Potter who had represented appellant in a previous matter involving a foreclosure by appellees and who was, at the time of trial, a tenant of appellant. He testified that he received a copy of the August 27 letter on approximately August 30 or 81. According to appellant, Potter’s copy of the letter was mailed at the same time as the letter to appellees.

Again, it is up to the jury to determine the credibility of conflicting witnesses. It is important to note that appellant contradicted herself during the testimony as to whether she or her husband placed the August 27 letter in the mail. The applicable rule provides that “proof of nonarrival ordinarily constitutes some evidence that a letter was not mailed.” Sudduth v. Commonwealth County Mutual Insurance Co., 454 S.W.2d 196, 198 (Tex.1970); accord, Hensley v. Lubbock National Bank, 561 S.W.2d 885 (Tex.Civ.App.1978, no writ); Western Fire Insurance Co. v. Reyna, 495 S.W.2d 57 (Tex. Civ.App.1973, writ ref’d n. r. e.); Cooper v. Hall, 489 S.W.2d 409 (Tex.Civ.App.1972, writ ref’d n. r. e.).

The judgment of the trial court is in all things affirmed.


author: HUGHES, Justice.

text:
    COUNTY TREASURER OF WICHITA COUNTY et al. v. WICHITA COUNTY, Texas et al.
    No. 18029.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 7, 1978.
    Rehearing Denied Jan. 4, 1979.

      Helton, Copeland & Southard, and R. M. Helton, Wichita Falls, for appellants.
    Hank Anderson, County Judge Wichita County, Short & Copeland, and Don Short, Wichita Falls, John L. Hill, Atty. Gen. of Texas, and Max P. Flusche, Jr., Asst. Atty. Gen., Austin, for appellees.
   OPINION

HUGHES, Justice.

The County Treasurer of Wichita County and two Wichita County taxpayers, Frank Foster and Mrs. L. W. Walker, plaintiffs, have appealed the order of the district court which granted defendants’ plea to the jurisdiction, refused a temporary injunction prayed for by the plaintiffs and dismissed the suit. The defendants, hereinafter called Wichita County, include:

Hon. Hank Anderson, County Judge:
Hon. D. W. Wiley, County Commissioner;
Hon. G. Clark Gresham, County Commissioner;
Hon. E. E. Voyles, County Commissioner;
Hon. H. C. Greer, County Commissioner; Members of the Commissioners’ Court of Wichita County, Texas, all residents of Wichita County, Texas;
Hon. Frances A. Stover, County Auditor, of Wichita County, Texas, Wichita Falls, Texas;
Hon. Howard Large, Chief Administrator, Family Courts Services, Wichita County, Texas, Wichita Falls, Texas;
Hon. Robert Flowers, Executive Director, C.J.D.*;
Hon. Willis Whatley, General Counsel, C.J.D.*;
Hon. Thomas A. Griebel, Chief Accountant, C.J.D.; all of Austin, Texas.
We affirm.

This controversy arises over the attempted repayment to C.J.D. the sum of forty-eight thousand nine hundred twenty-five dollars and fifteen cents ($48,925.15). It is uncontroverted that the presence of this amount of money in the Treasury of Wichita County had its origin in a number of grants that had been awarded to the county by C.J.D. From the pleadings on file and the evidence adduced at the hearing on the temporary injunction held on November 22, 1977, it appears that the funds in question were received by Wichita County and were improperly used by it in the conduct of its business. ■ There is some question as to exactly how much was erroneously expended. In the testimony at the hearing on the temporary injunction one witness testified that at least $25,000.00 of the money had not been expended, whereas another witness testified exactly to the contrary.

The commissioners’ court of Wichita County ordered that the money be repaid to C.J.D. by Wichita County. On or about October 10, 1977, the Wichita County Auditor approved for payment the claim asserted by C.J.D. (his predecessor had rejected it), and thereafter issued warrant no. 1634 in the amount of forty-eight thousand nine hundred twenty-five dollars and fifteen cents ($48,925.15) on October 19, 1977.

Before warrant no. 1634 was presented for payment, the Wichita County treasurer informed the depository of Wichita County that warrant no. 1634 would be dishonored and not accepted for payment when presented to her.

On October 31, 1977, the commissioners’ court issued three orders approving payment of C.J.D.’s claim against Wichita County and issuing instructions pertaining thereto. On November 15, 1977, the commissioners’ court of Wichita County adopted unanimously Findings of Fact, Resolution and Order, Minute No. 7259, giving its approval of said claim.

In her 8th point of error, treasurer asserts that she does have standing to sue in this case. The 9th point of error claims the same for taxpayers. She cites Uhr v. Brown, 191 S.W. 379 (Tex.Civ.App.—San Antonio 1916, no writ) for the proposition that “[a] public officer, in the absence of a prohibition, has the implied authority to institute suits necessary to the proper and faithful performance of his duties.” (Emphasis ours.) In view of treasurer’s announced refusal to issue the warrant before the order was passed by the commissioners’ court, we must assume she would continue to refuse. Why did she sue in equity when she has not exhausted her legal recourse of simply refusing to issue the check? Is this suit in equity necessary? We hold it not to be.

Interestingly enough, the same Uhr case supra, cited by treasurer, holds that a taxpayer cannot secure the aid of equity to prevent de facto officers from serving or receiving compensation. This, with other authorities herein discussed, disposes of the contention that taxpayers have standing in this suit.

Treasurer cited Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525 (1938) which was a taxpayer’s suit based on Tex.Const. art. XI, § 7, to enjoin payment of attorney’s fees in three yearly increments contracted by a commissioners’ court. In affirming the granting of the injunction there, it was held that the third installment would not likely be paid out of current revenues, thus incurring a “debt” in violation of said Tex.Const. art. XI, § 7. Wichita County has shown adequate current revenues here to pay the sum ordered.

City of Austin.v. McCall, 95 Tex. 565, 68 S.W. 791 (cited by appellants as 68 S.W. 511 and by appellees as 68 S.W. 171 (1902) involved taxpayer’s suit based on Tex.Const. art. XI, § 5 where City of Austin was found in violation thereof for spending municipal funds without a 2% sinking fund mandated by such § 5. No constitutional prohibition was urged against the payment here involved.

Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94 (1937), was cited by treasurer to support her standing to sue. Tex.Rev.Civ. Stat.Ann. art. 1710 (1925), provides that county treasurers, under statutory authority, can sue for recovery of debts due their county. That provision does not provide for a suit, such as this, for sums owed by the county. Hoffman, supra, also held that, under the then statute, taxpayers could have no standing to sue in lieu of the county treasurer’s discretion. It appears that the same logic would apply to taxpayers and the discretion of the commissioners’ court in this present case.

More recent cases support the proposition that taxpaying citizens and county treasurers do not have authority to institute suits such as the present one. Harwell v. Ward County, 314 S.W.2d 868 (Tex.Civ.App.—El Paso 1958, writ ref’d n. r. e.) and County of Ward v. King, 454 S.W.2d 239 (Tex.Civ.App.—El Paso 1970, writ dism’d).

We overrule appellants’ points of error 8 and 9 and hold treasurer and taxpayers to be without standing to sue in this cause. In view of the foregoing ruling, appellants’ points of error 1 through 7 need not be considered.

We affirm.

       C.J.D. refers to Criminal Justice Division of the Governor’s Office, Executive Office Building, Austin, Texas.


author: RALEIGH BROWN, Justice.

text:
    BALBOA INSURANCE COMPANY v. SNYDER CONSOLIDATED INDEPENDENT SCHOOL DISTRICT et al.
    No. 5182.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 7, 1978.
    J. Robert Fisher, Winstead, McGuire, Se-chrest & Trimble, Dallas, for appellant.
    Max Addison, Crenshaw, Dupree & Mi-lam, Lubbock, George R. Killiam, Jr., Snyder, for appellees.
   RALEIGH BROWN, Justice.

Snyder Consolidated Independent School District and Scurry County sued Jerry Don Stephens d/b/a Bost Construction and Demolition Company and its surety, Balboa Insurance Company, on its performance and payment bond for damages for Stephens’ failure to complete a demolition contract with Snyder School District. Trial to the court resulted in a judgment for plaintiffs against Stephens for $81,600 and against Balboa for $30,000, of that sum, being the penal sum of the bond. Only Balboa Insurance Company appeals. We affirm.

On or about October 14, 1975, Stephens d/b/a Bost Construction and Demolition Company entered into a contract with Snyder School District for the demolition of a building known as the Travis Junior High School. The contract required a payment and performance bond in the penal amount of Thirty Thousand Dollars ($30,000) which Stephens posted with Balboa acting as surety-

Previously, Scurry County had offered to purchase the Travis School property and on September 9, 1975, Snyder School, at its regular meeting, voted to accept Scurry County’s offer. Balboa argues that there is no mention made in the minutes of that meeting of demolition of a building.

Bill Hood, Superintendent of the Snyder Schools, testified that Scurry County and Snyder Schools had been negotiating for the use by Scurry County of the Travis School property for some months prior to the demolition contract. He further testified that when Snyder Schools agreed to sell, Scurry County asked the Snyder Schools to be publicly responsible for the demolition of the building at the expense of the County.

The demolition of the building was publicly advertised for bids without mention of Scurry County. The bids were opened by an architect acting both on behalf of Snyder Schools and of Scurry County. Hood testified that the county commissioners of Scurry County instructed the school board as to which bid to accept. The minutes of the Commissioners Court dated prior to the date of the demolition contract confirmed Hood’s testimony.

On October 30, 1975, the day following that on which the performance bond was written, Snyder Schools executed a warranty deed to Scurry County conveying the Travis School property. On November 3, 1975, Stephens was given notice to proceed under the October 14, 1975, contract which required demolition of the building within a 125 day period.

After beginning the demolition, Bost Construction encountered various difficulties. Snyder Schools became concerned with the lack of progress on the work and in an effort to facilitate the matter made a $2,000 payment to Stephens. Finally on July 27, 1976, Bost Construction was notified to complete the demolition no later than August 6, 1976. The company abandoned the project. On September 17, 1976, Snyder Schools made demand on Balboa to complete the task because of Bost Construction’s failure to perform. Balboa denied the demand. This suit resulted.

There are no findings of fact nor conclusions of law. In such event, the court in Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968) said:

When findings of fact and conclusions of law are not requested or filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962).

Balboa argues the trial court erred in granting Scurry County a judgment against it because the county’s alleged cause of action was based solely upon a contract of suretyship to which the county was not a party. We disagree.

It is undisputed that Balboa is a defendant in this cause because of the surety bond it provided. The bond provided:

That we, Jerry Don Stephens, as Principal, and the BALBOA INSURANCE COMPANY, a California Corporation duly licensed to do surety bond business in the State of Texas, are held and firmly bound unto Snyder Consolidated Independent School District, Snyder, Texas in the penal sum of Thirty thousand and no/100 Dollars ($30,000.00), lawful money of the United States, the payment of which, well and truly, to be made, we do bind ourselves, our heirs, and our legal representatives, both jointly and severally by these presents.
THE CONDITIONS OF THIS OBLIGATION ARE SUCH, That the above bounden Principal has entered into a contract with Snyder Consolidated Independent School District, Snyder, Texas, dated October 14, 1975, to demolish Travis Junior High School (Main Building), Snyder, Texas.
NOW, THEREFORE, If the above named Principal shall faithfully comply with all conditions of the above described contract, and pay for all labor and materials used therein, then this obligation shall be null and void, otherwise to remain in full force and effect.

The contract referred to in the bond makes no specific reference to any interest of Scurry County. However, the contract provides:

The Owner and the Contractor each binds himself, his partners, successors, assigns and legal representatives to the other party hereto and to the partners, successors, assigns and legal representatives of such other party in respect to all covenants, agreements and obligations contained in the Contract Documents. .

The rule is stated in 11 C.J.S. Bonds § 43 (1938) that:

It may be stated generally that, where a bond and another contract or instrument relate to and form one and the same transaction, or the bond refers to such other instrument or is conditioned for the performance of specific agreements set forth therein, such instrument with all its stipulations, limitations, or restrictions becomes a part of the bond, and the two should be read together and construed as a whole, although if only specific parts of another instrument are referred to, only so much of such instrument is incorporated in the bond as it is evident the parties intended to embody or to rely on. .

Texas follows this rule. Lindsey v. Williams, 228 S.W.2d 243 (Tex.Civ.App.-Texarkana 1950, no writ); Sullivan v. City of Galveston, 17 S.W.2d 478 (Tex.Civ.App-Galveston 1928, writ ref’d n.r.e.); Trinity Portland Cement Co. v. Lion Bonding & Surety Co., 229 S.W. 483 (Tex.Comm.App.1921); 9 Tex.Jur.2d, Bonds § 26.

In the instant case, the bond expressly refers to the contract between the school and Bost Construction and Demolition Company. The bond provided that the principal will faithfully comply with all of the conditions of the “above described contract.” The contract bound Stephens d/b/a Bost Construction and Demolition Company not only to the Snyder Schools, but also to its “successors.” The bond has no prohibition as to a transfer of title.

The court in Crane County v. Bates, 126 Tex. 470, 90 S.W.2d 243 (Tex.Comm.App.1936) said:

Tha[n] an obligee in a written obligation may sue and recover thereon, although the beneficial interest therein is owned by another, is settled in this state. Allison v. Phoenix Ins. Co., 87 Tex. 593, 30 S.W. 547; Ferguson v. Mansfield (Tex.Com.App.), 235 S.W. 524. Bonds are to be construed as other written instruments and the same rules apply to the one as to the other.

In Phoenix Assur. Co. v. Allison, 87 Tex. 593, 30 S.W. 547 (1895), the court held:

It is a general rule, applicable to all written contracts, that he who has the legal title may maintain an action upon it notwithstanding another may have the equitable right to the proceeds of it when collected. Thompson v. Cartwright, 1 Tex. 87; McMillan v. Croft, 2 Tex. 397; Knight v. Holloman, 6 Tex. 153; Wimbish v. Holt, 26 Tex. 674; Collins v. Bank, 75 Tex. 254, 11 S.W. 1053. . . .

See also Texas Fidelity & Bonding Co. v. Elliott, 195 S.W. 301 (Tex.Civ.App.-San Antonio 1917, writ ref’d).

The trial court correctly entered judgment for Scurry County against Balboa.

In five points of error, Balboa challenges the damage award. The company urges there is no evidence and, alternatively, the evidence is so against the great weight and preponderance of the evidence that no finding of damages for the amount of the bond should be made.

Balboa bound itself to pay the sum of $30,000 on the failure of Stephens to comply with all the conditions of a contract to “demolish Travis Junior High School (Main Building), Snyder, Texas.” Stephens defaulted on that contract.

Architect Hinton, who had twenty-five years experience as a certified architect and qualified as an expert witness, gave testimony to the effect that damages flowing from the default by Stephens exceeded the $30,000 provided for by the bond. This is some evidence of probative force to support the $30,000 award against Balboa, Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), and, alternatively, same is not factually insufficient. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We overrule Balboa’s challenge to the damage award.

We have considered and overrule all points of error. The judgment is affirmed.


author: O’QUINN, Justice.

text:
    R. R. ROBINSON, d/b/a Do-Rite Grocery and Market, Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, Appellee.
    No. 12837.
    Court of Civil Appeals of Texas, Austin.
    Dec. 13, 1978.
    Claude R. Wilson, Jr., Golden, Potts, Boeckman & Wilson, Dallas, for appellant.
    John L. Hill, Atty. Gen., R. L. Lattimore, Asst. Atty. Gen., Austin, for appellee.
   O’QUINN, Justice.

In an earlier appeal of this cause this Court affirmed the trial court’s action in declining to consider for want of jurisdiction the suit of R. R. Robinson, doing business as Do-Rite Grocery and Market, to enjoin the Comptroller of Public Accounts from collecting in excess of $20,900.00 in taxes claimed due the State and the City of Dallas. (553 S.W.2d 196 (Tex.Civ.App.) writ ref’d n. r. e.; cert. den., 436 U.S. 917, 98 S.Ct. 2264, 56 L.Ed.2d 758).

In the same appeal this Court reversed the trial court’s judgment granting the Comptroller’s motion for summary judgment for taxes and penalties and remanded the cause for further proceedings.

From summary judgment granted on the Comptroller’s motion in a subsequent hearing on March 30, 1978, Robinson appeals on the sole point of error that the summary judgment proof did not support the pleadings. We will overrule the point of error and affirm judgment of the trial court.

Appellant Robinson argues that the delinquency certificate of the Comptroller, attached to and expressly incorporated in the State’s sworn motion for summary judgment, failed as competent evidence because the signature of the Comptroller does not appear on it, but is stamped on a form on which are stated the name of the taxpayer and “other information necessary to complete the certificate.” Appellant contends also that the certificate may not be considered as an affidavit in support of the motion for summary judgment because it fails to “state that it was made on the personal knowledge of the Affiant and that the Affiant was competent to testify to the matters embraced therein.”

It is settled that in a suit for collection of taxes a certificate by the Comptroller showing the delinquency constitutes pri-ma facie proof of the tax and the amount of the tax, and the certificate is accorded the presumption of correctness. Baker v. Bullock, 529 S.W.2d 279, 281 (Tex.Civ.App. Austin 1975, writ ref’d n. r. e.) and authorities there cited; Arts. 1.08 and 20.09(E) and (G)(1), Title 122A, Taxation-General. The signature and seal on the Comptroller’s certificate may be shown in facsimile “in lieu of his manual signature and his seal and acknowledgment.” Art. 1.07(1)(e)(ii), Title 122A, Tax.-Gen.

For the additional reason that appellant failed to make timely and proper objections in district court, any claimed defects in the form of the affidavit or attachments are not grounds for reversal on appeal. Such defects must be specifically pointed out in the trial court. Rule 166-A(e), Rules of Civil Procedure, as amended effective January 1, 1978.

In this Court's earlier opinion, in conformity with two decisions by the Supreme Court, we stated that “. . . the supporting document in this case is the Comptroller’s certificate, which should be attached to the motion ... to make proof necessary to support the motion for summary judgment.” (553 S.W.2d 199, col. 2) See Texas National Corporation v. United Systems International, Inc., 493 S.W.2d 738 (Tex.1973); Hidalgo v. Surety Savings & Loan Assoc., 462 S.W.2d 540 (Tex.1971).

We conclude that the Comptroller has complied with the instructions and objections pointed out in the first opinion, that the motion for summary judgment was adequately and properly supported by the proof, and that the trial court did not err in granting the motion and rendering judgment for the State.

The judgment of the trial court is affirmed.


author: McCLOUD, Chief Justice.

text:
    Harry D. HAWN et al., Appellants, v. J. V. HAWN et al., Appellees.
    No. 5199.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 14, 1978.
    Rehearing Denied Jan. 4, 1979.

      Tom Thomas, Kolodey & Thomas, Dallas, for appellants.

      Jack Pew, Jr., Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for appel-lees.
   McCLOUD, Chief Justice.

Plaintiffs, J. V. Hawn, Villas Management Services, Inc., and Elam-Miller, Inc., sued defendants, Collection Services, Ltd., a Texas limited partnership, and its two general partners, Harry D. Hawn and William R. Wortley, seeking specific performance of a written agreement executed in connection with the settlement of a pending lawsuit. The trial court directed a verdict in favor of plaintiffs. Defendants have appealed. We affirm.

Plaintiffs, on January 3, 1977, in Cause No. 77-9-J in the 191st District Court of Dallas County, sued American Housing Resources, Inc. seeking payment of four promissory notes executed on behalf of American Housing and totaling $164,756.75. Defendant Wortley was president of American Housing, and defendant Harry D. Hawn, son of plaintiff, J. V. Hawn, was vice-president. While the suit against American Housing was pending, an agreement for settlement of the litigation was reached. The written agreement was executed on July 22,1977, by J. V. Hawn, the corporate plaintiffs, and by defendants Wortley and Harry D. Hawn, as the general partners of Collection Services, Ltd., a Texas limited partnership. The written agreement provided in part:

(1) That plaintiffs would assign to Collection Services, Ltd., the four American Housing notes, as well as an additional $80,000 note, payable to J. V. Hawn, and executed by American Housing;
(2) That the purchase price of the five notes would be $120,000 consisting of (a) $50,000 in cash, and (b) two promissory notes, dated July 22, 1977, and due on or before December 1, 1978, to be executed by Wortley and Harry D. Hawn as general partners of Collection Services, Ltd.; and
(3) That plaintiffs would dismiss Cause No. 77-9-J, the suit pending against American Housing.

The agreement was originally typed to be entered into and signed by Harry D. Hawn and William R. Wortley in their individual capacities. By penned interlineation, how-, ever, the agreement shows to be entered into and signed by Wortley and Harry D. Hawn as general partners of Collection Services, Ltd. Throughout the instrument, the typed letter “s” at the end of the word “Assignees” was marked out. Paragraph 3 of the agreement provided:

Litigation and Release: By Cause No. 77-9-J filed in the 191st Judicial District Court of Dallas County, Texas, Assignors have filed suit against AHR for collection of those AHR Notes which are referred to in paragraphs A(i) through (iv) hereof. In consideration of this Agreement, Assignors agree to dismiss such cause without prejudice. In consideration for such agreements and the other agreements of Assignors herein contained, Assignee hereby release, acquit and forever discharge Assignors and each of them from any and all claims and demands, actions, causes of action, damages, costs and expenses of any nature (including any claims for the furnishing of carpets to Hawn) that Assignee may now have, own or claim to have or own, and Assignors hereby release, acquit and forever discharge Assignee and American Housing Resources, Inc. and each of them from any and all claims and demands, actions, causes of action, damages, costs and expenses of any nature that Assignors may now have, own or claim to have or own.

Paragraph 7 provided:

Merger and Binding Effect: All understandings and agreements between the parties are merged into this Agreement, which alone expresses their agreement, and the same is entered into after full investigation, neither party relying upon any statement or representations not embodied in this Agreement made by the other. It may not be changed orally and all of the stipulations contained in this Agreement are to apply to and bind the successors and assigns of the respective parties hereto.

Defendants failed to comply with the July 22, 1977, agreement and on September 7,1977, plaintiffs amended their petition in Cause No. 77-9-J to include in count one a claim against defendants based upon the July 22, 1977, agreement. In count two, they alternatively sought recovery against American Housing on the five notes in issue. On motion of plaintiffs, count two was severed for separate trial. The trial involved count one only, that being the claim against defendants, Wortley, Harry D. Hawn, and Collection Services, Ltd. On December 9, 1977, the court entered judgment, jointly and severally, for plaintiffs against defendants for $50,000, plus attorney’s fees, and directed defendants to execute the $50,000 and $20,000 promissory notes provided for in the July 22, 1977, agreement. On the same date, the court dismissed plaintiffs’ cause against Ameri-can Housing Resources, Inc.

Defendants, Wortley and Harry D. Hawn, contend the court erred in not permitting them to introduce evidence before the jury that J. V. Hawn had in January or early February of 1977 agreed to assign the notes in question to Collection Services, Ltd., a “contemplated” limited partnership, for an interest as a limited partner. Wort-ley and Harry D. Hawn, individually, asserted a counterclaim against plaintiffs for breach of this alleged agreement. On bill of exception, Wortley and Harry D. Hawn testified that prior to the July 22, 1977, written agreement, J. V. Hawn, for and on behalf of all the plaintiffs, agreed to assign the notes to the contemplated limited partnership in exchange for an interest as a limited partner. The excluded evidence showed that Wortley and Harry D. Hawn were attempting to purchase all of the stock of American Housing; that they would be the general partners of the contemplated limited partnership and there would be eight limited partners; that on February 18, 1977, Wortley and Harry D. Hawn sent J. V. Hawn a proposed agreement for the contemplated limited partnership, which was signed by the general partners and only one of the eight prospective limited partners; and that J. V. Hawn did not sign the agreement. Collection Services, Ltd., one of the defendants herein, was later established but it was not the “contemplated” limited partnership. The partnership that was established did not include the limited partners as contemplated when J. V. Hawn allegedly made the oral commitment.

If the partnership, Collection Services, Ltd., is bound by the July 22,1977, agreement, then the general partners, Wortley and Harry D. Hawn, are jointly and severally liable for the obligations of the partnership. See Sec. 10(a), Article 6132a, Texas Uniform Limited Partnership Act, and Sec. 15, Article 6132b, Texas Uniform Partnership Act, Tex.Rev.Civ.Stat. Ann. Defendants argue plaintiffs failed to conclusively establish that Wortley and Harry D. Hawn, the general partners, had authority to enter into the July 22, 1977, agreement. We disagree. In answer to request for admissions, the partnership admitted that “it entered into” the written agreement. The partnership is bound by the judicial admission, notwithstanding the sworn denial filed by Wortley and Harry D. Hawn stating they had no such authority. Brooks v. Eaton Yale and Towne, Inc., 474 S.W.2d 321 (Tex.Civ.App.—Waco 1971, no writ).

Estoppel by contract is a form of “quasi estoppel” based upon the idea that a party to a contract will not be permitted to take a position inconsistent with its provisions, to the prejudice of another. United Fidelity Life Ins. Co. v. Fowler, 38 S.W.2d 128 (Tex.Civ.App.—Dallas 1931, writ dism’d); 22 Tex.Jur.2d Estoppel § 3. We have found no case directly in point; however, we hold that the two general partners, Wortley and Harry D. Hawn (who signed the July 22, 1977, agreement as general partners of Collection Services, Ltd.) are estopped to contend that the agreement they executed, which concerned the identical notes involved in the alleged prior oral agreement, did not release their individual claims, if any, against plaintiffs. See Surtees v. Hobson, 13 S.W.2d 345 (Tex.Comm. App.—1929); Blackman v. Blackman, 128 S.W.2d 433 (Tex.Civ.App.—Fort Worth 1939, writ dism. judgm. cor.); Nettles v. First Nat. Bank of Temple, 168 S.W.2d 920 (Tex.Civ.App.—Austin 1943, writ ref’d w. o. m.); 31 C.J.S. Estoppel § 55. We hold, therefore, the court correctly held that the alleged oral agreement involving the American Housing notes was merged into the subsequent written agreement dated July 22, 1971. The tendered extrinsic evidence was properly denied. Hobbs Trailers v. J. T. Arnett Grain Company, Inc., 560 S.W.2d 85 (Tex.1977). Furthermore, the testimony of Wortley, at the time of trial, that J. V. Hawn had never told him or anyone in his presence that he was not going to sign the Collection Services, Ltd. partnership agreement, conclusively establishes there was no anticipatory breach by J. V. Hawn or the other plaintiffs of the alleged oral agreement. Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ.App. — Tyler 1965, no writ).

Defendants next argue the court erred in holding that the settlement agreement was specifically enforceable. We disagree. The settlement agreement expressly provided that it might be specifically enforced. The court decreed that the defendants execute the $50,000 and $20,000 promissory notes as provided for in the written agreement. Specific performance will lie to require the execution of a written instrument agreed upon. 71 Am.Jur.2d, Specific Performance § 100 (1973). The evidence conclusively established that defendants repudiated the written contract and that plaintiffs properly pleaded that they were ready, able and willing to perform every obligation required of them under the contract. Buford v. Pounders, 145 Tex. 460, 199 S.W.2d 141 (Tex.1947).

Defendants further assert that the order of dismissal entered by the trial court on December 9, 1977, is in irreconcilable conflict with the judgment entered in favor of plaintiffs against defendants on the same date. We construe the dismissal order as dismissing plaintiffs’ suit against American Housing Resources, Inc., in accordance with plaintiffs’ obligations under the settlement agreement. See Lone Star Cement Corporation v. Fair, 467 S.W.2d 402 (Tex.1971).

Finally, defendants assert that the court erred in awarding attorney’s fees because plaintiffs failed to prove the presentment of their claim as required by Tex.Rev. Civ.Stat.Ann. art. 2226. We disagree. Defendants admitted in response to plaintiffs’ request for admissions, that they had entered into the agreement of July 22, 1977, and had not paid the cash or executed the notes required by said agreement. Welch v. Gammage, 545 S.W.2d 223 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.).

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