source: Caselaw Access Project

author: CADENA, Chief Justice.

license: Public Domain

text:
    WINKLER CONSTRUCTION CO., Appellant, v. HORNOR & COMPANY, Appellee.
    No. 16043.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 31, 1979.
    Rehearing Denied April 25, 1979.
    Daniel R. Rutherford, San Antonio, for appellant.
    Banks M. Smith, Banks & Banks, San Antonio, for appellee.
   OPINION

CADENA, Chief Justice.

Winkler Construction Company, which will be identified in this opinion as “defendant,” appeals from a judgment awarding plaintiff, Hornor & Company, a recovery of $1,292.75 against defendant on the theory that Climate Control Company, which had a claim against defendant in that amount, had assigned its claim to plaintiff. The judgment was based on jury findings to the effect that Climate Control had assigned its claim against defendant to plaintiff and that defendant had notice of such assignment before it paid its debt to Climate Control.

Defendant undertook, as general contractor, to construct drive-in teller windows for a San Antonio bank. Climate Control, as subcontractor, contracted to install the required air conditioning equipment. It is undisputed that at the completion of the air conditioning work defendant still owed Climate Control $1,292.75.

Plaintiff is engaged in the business of supplying equipment and materials to contractors and had supplied such equipment to Climate Control over a period of time. In October, 1975, Climate Control attempted to secure additional equipment from plaintiff. Since plaintiff had experienced difficulty in collecting from Climate Control in the past, and since plaintiff had reason to believe that Climate Control was experiencing financial difficulties, it expressed its reluctance to extend further credit to Climate Control. It was finally agreed that plaintiff would deliver the equipment desired by Climate Control if the latter would assign to plaintiff the amount defendant owed to Climate Control.

Sharon Lempar, plaintiff’s bookkeeper and office manager, testified that on October 13, 1975, she called Rudolph Winkler, defendant’s president, to ascertain the amount still due to Climate Control, and that Winkler verified that the amount was $1,292.75. During the course of this conversation Winkler agreed to “consign” the amount owed to Climate Control “on a joint payment between [plaintiff] and Climate Control Company.” She then told Winkler that she would send him “a letter accordingly.” Winkler testified that he had no recollection of this conversation and that, to the best of his recollection, it had not taken place.

On October 14, 1975, the president of Climate Control took a letter to defendant’s office. In this letter,’ Climate Control, after stating that it had one “draw” remaining on the bank job in the amount of $1,292.75, requested that the “check for that draw be made payable jointly to Climate Control Co. and [plaintiff], so that [plaintiff] will be assured of payment for materials released.” This letter, which was addressed to Rudolph Winkler, also contained Climate Control’s request that Mr. Winkler sign the letter to indicate his acceptance. At the bottom of the letter there is a signature line, with the words, “Accepted” and “Rudolph Winkler, President Winkler Construction Co.” Mr. Winkler did not sign the letter. Instead, following the word “Accepted,” there appears the signature of Steven R. Oberg, and under this signature there appear the words, “Office Manager.”

When plaintiff received this letter, signed by Oberg, it delivered the equipment and materials to Climate Control. The uncon-tradieted evidence establishes that such delivery would not have been made in the absence of receipt by plaintiff of such letter. Winkler testified that he did not see the letter prior to November 13, 1975, the date on which defendant issued its check in the amount of $1,292.75 payable to Climate Control alone, rather than jointly to Climate Control and plaintiff. Plaintiff has received no money from either Climate Control or defendant.

Defendant’s answer contains no sworn denial that Oberg had no authority to sign the instrument on behalf of defendant and on which plaintiff’s claim is based. See Tex.R.Civ.P. 93(h). In any event, Winkler testified that he had delegated authority to Oberg and that Oberg’s acts were regarded as the corporation’s acts.

We do not consider defendant’s complaint that the trial court erred in overruling its objections to the charge. Defendant does not specify the portion of the record in which such objections appear, and the transcript does not reflect that defendant filed objections to the charge. Tex.R.Civ.P. 272.

Defendant urges that the judgment is erroneous because there is no evidence of an effective assignment by Climate Control to plaintiff of Climate Control’s claim against defendant. Defendant insists that Climate Control’s request that defendant pay the amount due to Climate Control by making the check payable to Climate Control and plaintiff jointly cannot constitute an assignment of Climate Control’s rights to plaintiff. This argument is based on the often-repeated proposition that there can be no valid assignment unless there is

an appropriation of the fund pro tanto either by an order on the specific fund or by transferring the amount otherwise in such a manner that the holder of the fund is authorized to pay the amount directly to the creditor, without the further intervention of the debtor, [so that there is a] . surrender [of] control over the funds or property assigned.

See Cooper v. Cocke, 145 S.W.2d 275, 279 (Tex.Civ.App.—Amarillo 1940, no writ). Defendant’s theory is that since Climate Control requested defendant to pay by means of a check payable to it and plaintiff jointly, Climate Control had not surrendered control of the fund, since the negotiation of the check would require the endorsement of Climate Control.

Our attention has been called to no Texas case, and we have found none, in which the court directed its attention to the problem now before us. There are decisions upholding assignments where the debtor’s payment of the debt owed the assignor was to be made by check payable to both assignor and assignee. See Manes Construction Co. v. Wallboard Coatings Co., 497 S.W.2d 334, 336 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); Olshan Lumber Co. v. Bullard, 395 S.W.2d 670 (Tex.Civ.App.—Houston [1st Dist.] 1965, no writ). But, as plaintiff admits, the question of the effect of payment by a joint check was not discussed in such cases.

We have found only one case in which the problem was discussed. In McClary v. Midland Land & Development Co., 109 F.Supp. 847, 852-53 (E.D.Tenn.1952), the court said that there had been no assignment, “valid as to parties not connected with the transaction,” because of the assignor’s failure to relinquish complete control of the account. Although the court did not specifically refer to the fact that the debtor was to make payment by check payable jointly to the assignor and assignee as the basis for concluding that complete control had not been relinquished, a reading of the opinion justifies the conclusion that this was the decisive factor. However, the court pointed out that the parties to the transaction (debtor, assignor and assignee) “treated [the agreement] as an assignment or, possibly in a more accurate sense, as a working contract in the nature of an assignment,” and rendered judgment in favor of the assignee against the debtor. Id. at 853.

In Wolters Village Management Co. v. Merchants and Planters National Bank of Sherman, 223 F.2d 793 (5th Cir. 1955), the Court, after describing the case as one involving the effectiveness of a security arrangement in which a prime contractor promised a subcontractor to render payment by checks made out jointly to the subcontractor and his prospective creditor, held that a certain letter agreement could not be considered an assignment under Texas law because there was no manifestation by the subcontractor of his intention to transfer, without further action, his right to the creditor. Id. at 798. However, it is clear that this holding was based on the fact that the letter in question from the subcontractor to the prime contractor merely stated that the subcontractor wished to assign his rights to his creditor. The Court said that the expression of a “wish to extend an assignment” was not equivalent to “we have assigned” or “we hereby assign,” and that the language used clearly showed that some further act by the subcontractor was contemplated in order to complete the transfer of the right. Id. That the Court did not consider payment by means of a joint check to be an obstacle to the finding of an assignment is made clear by the fact that the Court found the assignment completed when the subcontractor and the creditor completed arrangements for the extension of credit by the creditor to the subcontractor.

In the case before us, the agreement between plaintiff and Climate Control was complete prior to the time that Climate Control caused the letter to be taken to defendant’s office and signed. There can be no question that all details of the arrangement were completed at the time that the letter was delivered to plaintiff. Nothing further remained to be done in order to vest in plaintiff the right to the money in question. It is true that it would have been necessary, had defendant issued a check payable to Climate Control and plaintiff jointly, for Climate Control to endorse the check in order to enable plaintiff to receive the money; however, Climate Control had clearly become obligated to furnish such endorsement as the result of its agreement with plaintiff and had no right to withhold such endorsement. Because of its agreement with plaintiff, Climate Control lost the right to exercise a directing or governing influence over the money. The absence of a right to direct or manage amounts to an absence of the right to control.

We conclude that the evidence establishes an assignment from Climate Control to plaintiff.

Defendant’s contentions that there was no evidence or, in the alternative, insufficient evidence, to support the jury finding that it had notice of the assignment are, in the light of the evidence summarized above, without merit.

Defendant asserts that the trial court erred in submitting Special Issue 2, which inquired whether defendant had notice of the assignment because the issue, as submitted, constituted an inquiry as to a question of law, rather than a question of fact. In this connection, defendant argues that the controlling question was whether it had failed to exercise due diligence after receiving notice of the assignment. As already pointed out, defendant filed no timely objections to the charge. The question of the propriety of the submitted form of the issue is, therefore, not before us. We are not passing on defendant’s contention that an obligor who, with notice of an assignment, pays the obligation to the assignor is not liable to the assignee unless such obli-gor was guilty of negligence. Cf. Olshan Lumber Co. v. Bullard, 395 S.W.2d 670, 672 (Tex.Civ.App. — Houston [1st Dist.] 1965, no writ).

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Joyce Ann ANDERSON, Appellant, v. William Irwin DUBEL, Independent Executor, Estate of Sophie Mlynczak, Deceased, Appellee.
    No. 16138.
    Court of Civil Appeals of Texas, San Antonio.
    March 7, 1979.
    Rehearing Denied May 2, 1979.

      W. Pat Camp, Emmett L. Whitsett, Jr., San Antonio, for appellant.
    Patrick J. Pape, San Antonio, for appel-lee.
   OPINION

KLINGEMAN, Justice.

This is a suit u construe a holographic codicil of Sophie Mlynczak, deceased. The decedent died on June 9, 1977, leaving a formal will dated May 22, 1977, which was duly admitted to probate on June 30, 1977. The decedent also left a handwritten instrument dated June 3, 1977, which was admitted to probate by an order dated October 19, 1977, as a holographic codicil to her last will and testament, over the opposition of Joyce Ann Anderson, the niece of the testatrix. No appeal from the probate of the codicil was ever perfected. Subsequently, William Irwin Dubel, independent executor of the estate of the decedent, filed a petition to construe the holographic codicil. On May 2, 1978, the probate court entered judgment construing the codicil and will, which together constituted the last will and testament of the testatrix. Joyce Ann Anderson appeals from this judgment.

The trial court filed the following findings of fact and conclusions of law:

FINDINGS OF FACT
(1)It was SOPHIE MLYNCZAK’S testamentary intention in executing the Holographic Codicil, dated June 3, 1977, to reduce the general bequest of FIVE THOUSAND AND NO/100 ($5,000.00) DOLLARS to JOYCE ANN ANDERSON contained in Paragraph III of SOPHIE MLYNC-ZAK’S Last Will and Testament, dated May 22, 1977, to the sum of TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS, and by the terms of such Holographic Codicil, to bequeath MARJORIE REESE, TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS, and CECILIA GRAHAM, ONE THOUSAND AND NO/100 ($1,000.00) DOLLARS.
CONCLUSIONS OF LAW
(1) The Last Will and Testament of SOPHIE MLYNCZAK was partially revoked by her Holographic Codicil, dated June 3, 1977.
(2) A construction of the language contained in SOPHIE MLYNCZAK’S Last Will and Testament, dated May 22, 1977, along with the language contained in SOPHIE MLYNCZAK’S Holographic Codicil, dated June 3, 1977, reveals that it was SOPHIE MLYNCZAK’S testamentary intention in executing her Holographic Codicil, to reduce the general bequest of FIVE THOUSAND AND NO/100 ($5,000.00) DOLLARS to JOYCE ANN ANDERSON contained in Paragraph III of her Last Will and Testament to TWO THOUSAND AND NO/100 DOLLARS, and to bequeath MARJORIE REESE, TWO THOUSAND AND NO/100 ($2,000.00) DOLLARS, and CECILIA GRAHAM, ONE THOUSAND AND NO/100 ($1,000.00) DOLLARS.
(3) Under the terms of the Last Will and Testament of SOPHIE MLYNCZAK, as amended by the terms and provisions of her Holographic Codicil, dated June 3, 1977, SOPHIE MLYNC-ZAK directed her Independent Executor to dispose of her Estate as follows:
(a) The payment, as soon as practicable, of all existing debts, and all expenses of last illness, funeral and administration.
(b) To St. Leo’s Catholic Church of San Antonio, Texas, the sum of $500.00 to be used for masses for SOPHIE MLYNCZAK, Henry L. Ko-lodzie, and Sigmund Mlynczak.
(c) To her niece, JOYCE ANN ANDERSON, the sum of $2,000.00.
(d) To MARJORIE REESE, the sum of $2,000.00.
(e) To CECILIA GRAHAM, the sum of $1,000.00.
(f) To her sister, JULIA PLOCH, any one of the several air conditioning units installed in the Deceased’s home at 608 East Harlan, San Antonio, Bexar County, Texas, and specifically mentioned in the Holographic Codicil, such unit to be selected by JULIA PLOCH.
(g) To WILLIAM IRWIN DUBEL, and his wife, JANE LYNETTE DU-BEL, in equal shares, the entire residuary estate, consisting of both real and personal property, of whatever nature and wherever situated; or all of said property to the survivor of WILLIAM IRWIN DUBEL or JANE LYNETTE DUBEL, in the event that either of said beneficiaries should predecease the Testatrix.

Appellant by five points of error asserts that the trial court erred (1) in admitting over her objection the testimony of the attorney who prepared the formal will as to changes the testatrix wanted to make in such will; (2) in not sustaining the objections of appellant to the admission of the testimony of such attorney as to what testatrix told him two days after the date of her holographic codicil, regarding a codicil she wished him to prepare for her; (3) in holding that oral instructions, given by testatrix to her attorney two days after the testatrix had written the holographic codicil and relating to proposed changes in the will disclosed the intent of testatrix in such codicil; (4) in holding that the language of the holographic codicil partially revoked and reduced a specific monetary bequest of $5,000 made to appellant in the will; and (5) in not holding as a matter of law that the codicil made a bequest of $2,000 to appellant with the precatory request that she give masses for certain named persons and did not partially revoke or reduce the bequest of $5,000 made to appellant in the will.

Some of appellant’s complaints go to the question of the validity of the holographic codicil. At first impression, the sparse and vague contents of the codicil raise the question of whether or not the instrument was in law and in fact testamentary in character. This is not before us, however, since the holographic codicil was duly admitted to probate on October 19, 1977, over appellant’s opposition. No appeal was ever perfected with regard to admitting of the codicil to probate. The action of the probate court in admitting the instrument and the court’s specific finding that it was in fact a codicil to the original will are now final and conclusive, and on the issue of the instrument’s validity, will be so regarded in this opinion. Laborde v. First State Bank & Trust Co., 101 S.W.2d 389 (Tex.Civ.App.—San Antonio 1936, writ ref’d).

There are only two basic questions before this court. (1) Did the trial court err in admitting the testimony objected to at the hearing on the suit to construe? (2) Was the construction given by the probate court of the last will and testament and of the holographic codicil correct? The essential thrust of appellant’s appeal is that the trial court erred in not construing such will and codicil so as to leave intact the bequest of $5,000 to appellant, and give her an additional bequest of $2,000.

A codicil must be considered a part of the will. The formal will dated May 22, 1977, and the holographic codicil dated June 3, 1977, therefore, constitute the last will and testament of the testatrix, Sophie Mlynczak. Knolle v. Hunt, 551 S.W.2d 755 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.). Both instruments must be construed and considered together so as to ascertain the true intention of the testatrix. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731 (1955); Deegan v. Frost National Bank of San Antonio, 505 S.W.2d 428 (Tex.Civ.App.—San Antonio 1974, writ ref’d).

In Deegan, this court stated that:

the rules relating to construction of wills are well settled, although, as is usually the case with general rules, their application to specific facts and circumstances can present difficulty. The basic principle is that a court should ascertain, and give effect to, the intention of the testator as expressed in the will. In searching for the testator’s intent, courts are to consider the entire instrument, giving effect to every part of it, if this is possible without doing violence to the language of the instrument. It is also said that, in the event of conflict between provisions of the instrument, the general intent of the testator, derived from a consideration of the will as a whole, shall prevail over a specific intent shown by the language of a particular clause.

505 S.W.2d at 430-31.

Three of appellant’s points of error pertain to the admission of certain extrinsic evidence testified to by the attorney who prepared the formal will. These points of error have been hereinbefore set forth.

The attorney who prepared the formal will dated May 22, 1977, was permitted by the trial court, over objections, to testify concerning a telephone conversation he had with testatrix on June 5,1977, in which the attorney stated that the testatrix told him she wanted him to draft a codicil to her will to reduce the $5,000 bequest she had made to Joyce Ann Anderson to $2,000 and to leave $2,000 and $1,000, respectively, to two other persons, both of whose names he wrote down. This telephone conversation with the testatrix was at that time reduced to writing in the form of notes the attorney made for his own records. Both the notes and the time record of the attorney’s legal agenda for that day were admitted into evidence over objection of appellant’s counsel. The testatrix died several days after the telephone conversation of June 5, 1977.

The attorney further testified that he had known the testatrix for a number of years and he had prepared the formal will dated May 22, 1977. He gave testimony that the testatrix was an elderly woman and that in his opinion she was not well educated.

We have already made reference to the vague language of the codicil and even a casual reading of it discloses some ambiguities. There are numerous eases holding that extrinsic evidence may be admitted to aid in explaining a testator’s intent as to the disposition of his properties, where the language used in the will is uncertain or creates an ambiguity, either latent or patent. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731 (1955); Estate of Brown, 507 S.W.2d 801 (Tex.Civ.App. — Dallas 1974, no writ); 10 E. BAILEY, TEXAS LAWS OF WILLS § 561 (Texas Practice 1968). Some of these cases speak only of latent ambiguity. But in spite of language to this effect in some opinions, the leading authorities in this field are in agreement that the supposed distinction between patent and latent ambiguities has no vitality today. 10 E. BAILEY, TEXAS LAW OF WILLS § 561 (Texas Practice 1968); 2 C. McCORMICK & R. RAY, TEXAS LAW OF EVIDENCE § 1683 (Texas Practice 2d ed. 1956). See Pruett v. Berkeley, 405 S.W.2d 433 (Tex. Civ.App. — Waco 1966, no writ).

We have heretofore set forth general rules regarding construction of wills. Where there is an ambiguity the courts look to the testamentary instrument as a whole and also to circumstances surrounding its execution in determining intent. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955). Extrinsic evidence is admissible on the state of the testator’s family, on the status of his property, and as to other circumstances relating to him individually and to his affairs to enable the court to determine the testator’s meaning in the use of the language in his testamentary instrument. Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (1937); Peet v. Commerce & E. Street Railway Co., 70 Tex. 522, 527, 8 S.W. 203 (1888).

In Methodist Orphanage of Waco v. Buckner’s Orphans’ Home of Dallas, 261 S.W. 203 (Tex.Civ.App.—Galveston 1924, writ dism’d), it is stated:

The general rule, that the ascertainment of the intention of the testator is the cardinal rule to be followed in the construction of a will and that when there is ambiguity in the language of the instrument this intention can be shown by parol evidence, is so elementary as to render citation of authorities unnecessary.

We hold, therefore, that the court did not err in admitting the testimony of the testatrix’s attorney to aid in construction of the codicil.

By appellant’s remaining points of error, it is asserted that the court erred in holding that the language of the holographic will partially revoked and reduced an express monetary bequest of $5,000 made to appellant in the will, and in not holding that the holographic codicil made an additional bequest of $2,000 to appellant.

Paragraph III of the last will and testament provides:

I GIVE and BEQUEATH to my niece, JOYCE ANN ANDERSON, born on February 2, 1932, the sum of FIVE THOUSAND DOLLARS ($5,000.00). In the event my said niece should predecease me, then I hereby bequeath said sum of FIVE THOUSAND DOLLARS ($5,000.00) unto her children, per stirpes.

The holographic codicil provides, in pertinent part:

Joyce keep $2,000. give $2,000 to marjo-rie Reese ph-4326187 also give Cecelia Graham $1,000. Margie’s sister. I want it. that way. Please do this for me. Thank you Sophie Mlynczak.

In addition to her complaint as to the admissibility of testimony of the attorney hereinbefore set forth, appellant asserts vigorously that such testimony has no probative value and sheds no light on the testamentary intent of Sophie Mlynczak. We disagree. We see nothing to preclude testatrix from writing a valid holographic codicil and then a few days later requesting an attorney to prepare a formal codicil. She might logically think that her intent might be better expressed by an attorney. Certainly, this would have nothing to do with the validity of the handwritten codicil and would in no way revoke it. In our opinion, a declaration of this type made by the testatrix within a few days following the execution of the handwritten codicil is pertinent, sheds light on her intent and is credible probative evidence.

Appellant also asserts that the handwritten codicil could not effect a revocation or partial revocation of the provision of the will, in that no express revocation of the $5,000 bequest is contained in the codicil and no direct reference is ever made to such bequest. Appellant ignores or disregards the use of the words — “Joyce keep $2,000” —and attempts to construe this language as a grant in addition to the $5,000.

The intention of a testator to revoke a prior will may be evidenced by an express clause of revocation in a subsequent will or by reason of such inconsistent disposition of property covered by the successive testamentary instruments that all cannot stand, in which event the last instrument revokes a previous one by implication to the extent of such inconsistency only. Harris v. Strawbridge, 330 S.W.2d 911 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.). A will may be revoked wholly or in part by implication from the express provisions of a latter testament such as a codicil which makes a different and contrary disposition of identical property. Haynes v. Henderson, 345 S.W.2d 857 (Tex.Civ.App.—Austin 1961, writ ref’d n.r.e.); Laborde v. First State Bank and Trust Company of Rio Grande City, 101 S.W.2d 389 (Tex.Civ.App. — San Antonio 1936, writ ref’d).

The testimony shows that the testatrix was an elderly person, not well educated, and not learned in the law. Therefore, in construing the handwritten codicil we are justified in giving her words a literal application and avoiding implications which might occur to a lawyer alone. Further, we must give effect to the codicil where it conflicts with the original will since it is the testatrix’ latest expression, and having done this, we must, if possible, give effect and meaning to every part of the codicil and every remaining part of the original will.

The trial court did not err in its construction of the will and holographic codicil. All of appellant’s points of error have been considered and all are overruled.

The judgment of the trial court is affirmed.

      . Such testimony was objected to on several grounds, including hearsay, and that it violated the Dead Man’s Statute, article 3716, Texas Revised Civil Statutes. The testimony was admitted, however, for the limited purpose of showing surrounding facts and circumstances.

      . It appears to be established law in Texas that where a latent ambiguity is made to appear in a testamentary instrument, evidence extrinsic to the instrument itself is admissible to enable the court to discover the meaning attributed by the testator to the words used in the will and to apply them to the particular facts in the case. Hultquist v. Ring, 301 S.W.2d 303 (Tex.Civ. App.—Galveston 1957, writ ref’d n.r.e.).

      . The intention of the testator must be ascertained from the meaning of the words in the instrument, and from those words alone. But as he may be supposed to have used language with reference to the situation in which he was placed, to the state of his family, his property, and other circumstances relating to himself individually, and to his affairs, the law admits extrinsic evidence of those facts and circumstances to enable the court to discover the meaning attached by the testator to the words used in the will, and to apply them to particular facts in the case. Houston Bank & Trust Co. v. Lansdowne, 201 S.W.2d 834 (Tex.Civ.App.—Galveston 1947, writ ref’d n.r.e.).

      .A will is a unilateral instrument, and the court is concerned only with the intention of the testator as expressed in the document. The sense in which the words were used by the testator is the ultimate criterion, and the court may always receive and consider evidence concerning the situation of the testator, the circumstances existing when the will was executed and other material facts that will enable the court to place itself in the testator’s position at that time. Stewart v. Selder, 473 S.W.2d 3 (Tex.1971).

      . It is well recognized that when a codicil makes changes which conflict or deviate from a previous testamentary disposition, the provision of the codicil will control, it being the latest expression of the testator’s intention on the subject. Knolle v. Hunt, 551 S.W.2d 755 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.); Morriss v. Pickett, 503 S.W.2d 344 (Tex.Civ. App.—San Antonio 1973, writ ref’d n.r.e.); Haynes v. Henderson, 345 S.W.2d 857 (Tex.Civ. App.—Austin 1961, writ refd n.r.e.).


author: DOYLE, Justice.

text:
    Randall CARROLL, Appellant, v. Hazel Evon CARROLL, Appellee.
    No. 17282.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 15, 1979.

      Kenneth L. Smith, Houston, for appellant.
    Patterson, Boyd, Lowery, Aderholt, Ben L. Aderholt, Harry A. Dolan, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   DOYLE, Justice.

An agreed judgment of divorce was granted to Hazel Evon Carroll, as petitioner, and Randall Carroll, as respondent, in the 257th District Court of Harris County, Texas, on September 8, 1977. The decree provides, inter alia, certain sums of money upon a bond ordered by the court to guarantee performance on the part of the respondent.

Petitioner filed a motion for contempt on December 22, 1977, including therein an application to modify the divorce decree, especially as to visitation rights. Service was made on respondent in the State of Ohio. At the trial of the show cause and modification matter, respondent did not appear and the court, after hearing the evi- „ dence on March 13, 1978, entered a modification order on April 7, 1978.

Thereafter, on June 15, 1978, respondent filed a pleading styled a bill of review in which he challenged the court’s order of modification on the ground that the respondent had not been properly served with process. A full hearing was had on the bill of review, at which time respondent appeared only by his attorney. From a judgment overruling and denying the bill of review, respondent has perfected this appeal.

Respondent contends in his points of error one and two that the trial court lacked jurisdiction over the respondent and that respondent was not properly served with process, thereby rendering any judgment by the trial court void. Petitioner argues that the return recited that a copy of the pleadings was delivered to the respondent and that there is no evidence in the record to the contrary. Petitioner also contends that respondent’s pleading is insufficient as a bill of review. The relevant portions of the citation and return are set out:

“YOU ARE HEREBY DIRECTED that you serve Randall L. Carroll with accompanying certified copy of Motion for Contempt, together with Judge’s Order thereon, to be and appear before the 257th Judicial District Court of Harris County, Texas, 4th Floor Family Law Center, 1115 Congress Avenue, on the 13th day of March, 1978, at 9:00 A.M., then and there to show cause in accordance with the certified copy of the order of the Court hereto attached.”

The material portions of the return read:

County of Hamilton
PERSONALLY APPEARED before me, the undersigned authority, Robert Sacco who being by me duly sworn, deposes and says that in the County of Hamilton, State of Ohio, he delivered to the within named defendants, in person at the following times and places, to-wit:
NAME_DATE_TIME_PLACE
Month Date Year Hour Min._
Randall L. Carroll 2 13 78 8: 30 4017 Sharon Park Lane
a true copy of this notice, with a copy of_ accompanying same; and further, that he is an adult and is in no manner interested in this suit.”

Then follows the signature of Robert Sacco and the jurat showing the return to be sworn and subscribed to before Annette Stone, Notary Public, State of Ohio, on February 15, 1978.

It has been held that where the return shows that the person serving the process delivered to the defendant a copy of the citation and “an accompanying copy of -,” without stating in so many words what the “accompanying copy” was a copy of, that such omission could be supplied by referring to the face of the citation. Preusser v. Sealey, 275 S.W.2d 830 (Tex.Civ.App. — Beaumont 1955, no writ). In the case before us the face of the citation “directed that you serve Randall L. Carroll with accompanying certified copy of Motion for Contempt, together with Judge’s Order thereon, . . .”

We have checked the cases cited by respondent in support of his contention that the service of process was fatally defective. In Scucchi v. Woodruff, 503 S.W.2d 356 (Tex.Civ.App.—Fort Worth 1973, no writ) the service was held insufficient because the person making the return failed to swear that he was a disinterested party. The service was held defective for failure to state the manner of service by adding the qualifying words “by serving” in contravention of the provisions of Rule 107, T.R.C.P. in Watson Van and Storage Company v. Busse, 451 S.W.2d 557 (Tex.Civ.App.—Houston [1st Dist.] 1970, no writ). These cases are not in point with the facts of the case before us.

We find the service of process regular on its face and overrule respondent’s points of error in this regard.

While there is some mention by respondent in his bill of review that the final order of the trial court sought to be set aside was an interlocutory order or an interlocutory default judgment, a reading of the order reveals that it is a final order or judgment. As such, the judgment was subject to attack by appeal or writ of error, by a bill of review, or by direct attack if the contention is made that judgment was void when rendered. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961); Edwards Feed Mill, Inc. v. Johnson, 302 S.W.2d 151 (Tex.Civ.App.—San Antonio 1957, no writ).

Before a party is entitled to a bill of review, he must show that he has exercised due diligence in availing himself of his legal remedies and that at the time he files his bill of review no other legal remedy still exists. Falsetti v. Lowman, 405 S.W.2d 796, 799 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.); Biggs v. Biggs, 553 S.W.2d 207 (Tex.Civ.App. — Houston [14th Dist.] 1977, appl.dismd.). In 4 McDonald, Tex.Civ. Practice, Sec. 18.27.6 states:

“From the time he learns of the decree, or by the exercise of due dilligence would have learned of it, the complainant must seize upon all legal remedies still available, including motion for new trial, appeal, or writ of error. If none of these remains, he should proceed promptly with his bill of review, . . .”

We must now decide whether the respondent’s pleading is sufficient as a bill of review. The opening paragraph and prayer of his petition, respectively, are as follows:

“NOW COMES RANDALL CARROLL, Petitioner in the above numbered and entitled cause complaining of HAZEL EVON CARROLL, hereinafter referred to as Defendant, in which your Petitioner seeks leave of this Court to grant a BILL OR REVIEW of an interlocutory order entered in cause number 1,115,098, entitled ‘ORDER MODIFYING PRIOR ORDER AND OTHER FINAL RELIEF’, entered of record into the minutes of the 257th Judicial District Court of Harris County, Texas, in volume 1549, page 25 of said records for the following reasons to-wit:
“Wherefore your Petitioner prays that this Honorable Court direct the Clerk of this Court to issue notice directing the Respondent HAZEL CARROLL to appear before this court to show why this Court should not grant a BILL OF REVIEW to the Petitioner and at said hearing to have this Honorable Court vacate the order entered of record on the 7th and 6th of April, 1978, and restore the original orders of conservatorship in the cause in this Court during the pendency of this action;
“It is further prayed by the Petitioner that upon final hearing that the Respondent HAZEL EVON CARROLL, motion for modification be denied.”

Thus, it is apparent from the pleadings of respondent that he planned to file some further pleading at which time he would have the court vacate the order entered on April 7,1978, and restore the original orders of conservatorship “during the pendency of this action;”, and that on “final hearing” petitioner’s motion for modification be denied.

An examination of the alleged bill of review fails to reveal the necessary prerequisites for such a pleading. At most petitioner’s pleading styled “Original Petition for a Bill of Review,” is a motion asking for a show cause hearing to vacate the order of the trial court entered on April 7, 1978. This is best shown by the prayer at the end of the pleading as set out above.

The law is well settled in this jurisdiction that a bill of review is an equitable remedy in which the petitioner must allege and prove certain relatively narrow factual propositions. Raney v. Mack, 504 S.W.2d 527 (Tex.Civ.App.—Texarkana 1973, no writ). The Texas Supreme Court in Alexander v. Hagerdorn, 148 Tex. 565, 226 S.W.2d 996 (1950), gives the following guidelines for a bill of review invoked to set aside a final judgment:

“. . . he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any negligence of his own.”

When tested by the foregoing settled rules, we find respondent’s pleading fatally lacking in the bill of review requirements. It is not filed as an original petition detailing the facts on which respondent relies to obtain relief. It is not verified, nor was any evidence adduced at the hearing on the bill of review given under oath. Respondent mentions that he has a valid defense to petitioner’s allegations as set out in her motion. He fails to outline or prove any element of such defense. There is no contention by respondent that petitioner prevented him from presenting his defense or cause of action by any means, nor that he had exercised due diligence in availing himself of all adequate legal remedies. Clewis v. Clewis, 519 S.W.2d 274 (Tex.Civ.App. 1975); Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705 (1944); Briggs v. Briggs, supra. Petitioner’s crosspoint challenging respondent’s pleading as a bill of review is sustained.

Petitioner further contends that respondent still had the legal remedy of writ of error available to him at the time he filed his bill of review. We agree with the contention. The final order appealed from was dated April 7, 1978. Respondent filed his bill of review on June 15, 1978. Clearly six months had not elapsed since the final order had been signed and the remedy of writ of error was still available to respondent. Johnson v. Johnson, 476 S.W.2d 954 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ); Art. 2255, V.A.T.C.

Petitioner has filed a motion to dismiss the appeal herein on grounds foreign to the record in this case. This motion is denied.

The judgment of the trial court is affirmed.


text:
    W. M. LAIRD, Jr., Appellant, v. John F. JOBES et ux., Appellees.
    No. 16141.
    Court of Civil Appeals of Texas, San Antonio.
    March 21, 1979.

      Emil Karl Prohl, E. Bruce Curry, Prohl, Leslie & Curry, Kerrville, for appellant.
    H. Ritman Jons, Strauss & Jons, Kerr-ville, for appellees.
   OPINION

KLINGEMAN, Justice.

This is an appeal from a judgment of the District Court of Kimble County, Texas, denying appellant’s motion to reinstate the case following a dismissal for want of prosecution by the court. The trial court, after a hearing on the motion, declared that Rule 165a, Texas Rules of Civil Procedure, would not authorize reinstatement of the case.

Appellant, the defendant below, asserts two points of error. First, the trial court erred in failing to allow appellant to reinstate the cause of action after it had been dismissed for want of prosecution, even though appellant had not filed for affirmative relief, where appellee had not taken a voluntary nonsuit in a trespass to try title action. Second, appellant contends he was denied due process when he was not notified of the trial court’s intention to dismiss the trespass to try title suit for lack of prosecution.

Rule 165a provides in part that “[a] case may be dismissed for want of prosecution on failure of any party seeking affirmative relief or his attorney to appear for any hearing or trial of which he had notice, or on failure of such party or his attorney to request a hearing, or take some other action specified by the court, within fifteen days after the mailing of notices of the court’s intention to dismiss the case for want of prosecution.”

On September 5, 1972, appellee, plaintiff below, filed his original petition in which he alleged that he was the owner of a 7.38-acre tract of land. He alleged further that sometime in April, 1972, appellant had built a fence which encroached on appellee’s land, cutting off a portion thereof, and had wrongfully claimed that portion of appel-lee’s land included within appellant’s enclosure. The petition also included pleas of limitation under the three-, five-, ten-, and twenty-five-year statutes of limitations. Appellant filed an answer consisting only of a plea of not guilty.

On January 28, 1978, the court signed its order dismissing such case for want of prosecution. On February 27, 1978, appellant filed a motion to reinstate the suit. On May 3, 1978, the court entered an order setting a hearing on the motion to reinstate for June 1,1978. On June 5,1978, the court signed its order denying appellant’s motion to reinstate such suit. It is undisputed that during all relevant periods of time appellant asserted no affirmative relief and his only pleading was a plea of not guilty in his original answer below.

A dismissal for want of prosecution is within the sound discretion of the trial court, and its action thereon will not be disturbed unless there is an abuse of discretion. Southern Pacific Transportation Co. v. Stoot, 530 S.W.2d 930 (Tex.1975); Wm. T. Jarvis Co., Inc. v. Wes-Tex Grain Co., 548 S.W.2d 775 (Tex.Civ.App.—Waco 1977, writ ref’d n.r.e.); Allen v. Bentley Laboratories, Inc., 538 S.W.2d 857 (Tex.Civ.App.—San Antonio 1976, writ ref’d n.r.e.); Moss v. State, 361 S.W.2d 408 (Tex.Civ.App.—Eastland 1962, no writ).

Appellant concedes that ordinarily Rule 165a does not authorize a party who seeks no affirmative relief to have a ease reinstated after it has been dismissed for want of prosecution. He argues, however, that the rule should be different as to a trespass to try title suit, and that if the general rule is allowed to govern, it will result in unjust enrichment of appellee to appellant’s detriment. He argues that this action should be reinstated upon equitable grounds. We disagree. Rule 165a is plain and unambiguous. By its provisions, it is clearly limited to “any party seeking affirmative relief.” There is no exception provided for trespass to try title actions.

The provisions of Rule 165a have heretofore been set forth in part. In addition, the rule provides that

[w]ithin thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake. Where after a hearing the court finds that neither the party nor his attorney received a mailed notice, or acquired actual notice in any manner, of either the court’s intention to dismiss or the order of dismissal prior to the expiration of twenty days after the signing of such order, the court may reinstate the case at any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.

Tex.R.Civ.P. 165a.

Appellant’s motion to reinstate does not affirmatively state that he was never served with notice nor does appellant ever state exactly when he received actual notice. He does assert that at the time the suit was dismissed he mistakenly assumed that he had an attorney representing him and that if he had had knowledge of the court’s intention to dismiss he would have filed a motion to set the suit for immediate hearing, which could have been done at any time prior to dismissal. A party to a suit is always charged with notice that it may be dismissed for want of prosecution where there is inaction for a long period of time.

It should be noted that the court dismissed this case for want of prosecution on January 28, 1978, more than five years after the filing of both plaintiff’s original petition and defendant’s original answer. Appellant’s motion to reinstate was filed on February 27, 1978, within thirty days after entry of the order dismissing the case. No setting on the motion was made until May 3,1978, however, with the hearing being set for June 1, 1978.

In Cosper v. Aetna Life & Casualty Co., 513 S.W.2d 121 (Tex.Civ.App.—Dallas 1974, no writ), the court in discussing Rule 165a, stated:

[The rule] extends the court’s normal power to vacate its judgment within thirty days to ‘any time within thirty days after the party or his attorney first received either a mailed notice or actual notice, but in no event later than six months after the date of signing the order of dismissal.’ This language does not extend the court’s power to vacate an order of dismissal to a period of six months after the order in all cases, but limits that power to a period of thirty days after plaintiff has notice of the dismissal, with six months after the order as the ultimate limit. . . . The pleadings fail to show that appellants had no notice of the dismissal within the period of thirty days before the petition was filed. Consequently, if the ‘bill of review’ be considered as a motion to reinstate under Rule 165a, the trial court correctly dismissed it for want of jurisdiction.

Id. at 122-23.

The facts of Calaway v. Gardner, 525 S.W.2d 262 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ) are analogous to those before us. In that case, appellant filed suit against the appellee on July 31, 1972. Trial was set for September 3, 1974, but appellant failed to appear. Appellee moved to dismiss for want of prosecution and a written order granting the motion was entered on September 3, 1974. Appellant’s counsel was given notice of the dismissal and on September 11, 1974, prepared a motion to reinstate which was filed on September 12. The hearing on the motion to reinstate was set for December 2, 1974, and then reset for January 6,1975, at which time the hearing was held. On January 23, 1975, the trial court signed an order denying the motion for reinstatement. The court of civil appeals held that the trial court correctly concluded that at the time of the hearing on January 6, 1975, he was without power to reinstate the ease. Appellant there contended that the trial judge’s action in refusing to reinstate the case because of the expiration of more than thirty days should be reversed because it was the duty of the judge to set the motion for hearing within the thirty-day period. The appellate court pointed out that the rule provides that “[t]he court shall set the motion for hearing as soon as practicable . ,” but such language does not relieve the movant of the duty to procure a setting within the time allowed for reinstatement. The court noted that the record there did not show that the movant requested a setting within such time and held that the failure of the judge to set a hearing on the motion within the thirty-day period, when he was not asked to make such setting, is not a ground for reversal of its order denying the reinstatement. The record in the case before us discloses that a setting on the motion to reinstate was not made until May 3, 1978, a period in excess of sixty days after the motion to reinstate was filed. There is nothing in the record to indicate that appellant ever requested an earlier setting.

See also Baughtman v. Electric Insurance Co., 553 S.W.2d 5 (Tex.Civ.App.—Waco 1977, writ ref’d n.r.e.); Caddell v. Gray, 544 S.W.2d 481 (Tex.Civ.App.—Waco 1976, no writ).

In support of his contention that a reinstatement should have been granted on equitable grounds, appellant asserts that a plaintiff should not be allowed to sit idly by to a defendant’s prejudice; he urges that if the reinstatement is not allowed he will be met by a plea of the five-year statute of limitations in any later suit. In this connection, he occupies the same position that he did under the original petition in which appellee pleaded the five-year statute of limitations. He argues that in the present case appellee should not be allowed to mature his claim of limitations by his inaction. This argument cuts two ways. Appellant for a period of more than five years sought no affirmative relief and on the face of the pleadings before us his position may have been substantially improved. Appellee affirmatively alleged in his original petition that appellant had fenced in and was claiming a portion of appellees’ premises, and five years have since elapsed. In any event, appellant took no action to protect himself against the dismissal of which he now complains.

It is often stated that a dismissal for want of prosecution is analogous to a voluntary nonsuit dismissal. It is well established that a plaintiff is entitled to a voluntary dismissal in a case where the defendant has not filed a counterclaim seeking affirmative relief, and such dismissal would not prejudice the defendant’s right to be heard on his claim for affirmative relief. It has been held that it is an absolute right of a party, subject only to the Rules of Civil Procedure, to take a nonsuit in a judicial proceeding where no affirmative relief is sought by the defendant. Terry v. Howard, 546 S.W.2d 66 (Tex.Civ.App.—Dallas 1976, no writ); Roberts v. Morgan, 502 S.W.2d 31 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n.r.e.); Ex parte Helle, 477 S.W.2d 379 (Tex.Civ.App.—Corpus Christi 1972, no writ); State v. Roberson, 409 S.W.2d 872 (Tex.Civ.App.—Tyler 1966, no writ); Moody & Tips Lumber Co. v. South Dallas Bank & Trust Co., 246 S.W.2d 263 (Tex.Civ.App.—Dallas 1952, writ dism’d); Graham v. Seale, 221 S.W.2d 353 (Tex.Civ.App.—San Antonio 1949, no writ); Tex.R.Civ.P. 164.

In our opinion the law is correctly set forth in George v. George, 564 S.W.2d 172 (Tex.Civ.App.—Tyler 1978, no writ), where the court held that Rule 165a does not authorize a party seeking no affirmative relief to have a case reinstated after it has been dismissed for want of prosecution.

Under the record, we find no denial of due process to appellant. We have held that Rule 165a does not authorize a party seeking no affirmative relief to have his case reinstated after it has been dismissed for want of prosecution. In addition, appellant was given a hearing on his motion to reinstate and had his day in court. He wholly failed to meet the burden imposed upon him under the provisions of Rule 165a and failed to show any abuse of discretion.

We have considered all of appellant’s points of error and all are overruled. The judgment is affirmed.

      . In Baughtman, the trial court reinstated the cause on August 28, 1975, ninety-three days after the entry of the order of dismissal. Thereafter, the case was set for trial and defendants moved to dismiss the case for want of jurisdiction, which motion was granted by the trial court. The court of civil appeals affirmed, holding that the trial court was without jurisdiction on August 28, 1975, to enter the order of reinstatement, pursuant to Rule 165a. In Caddell, plaintiffs attorney first learned of the order of dismissal on January 30, 1976, and promptly filed a motion to reinstate. The trial court granted such motion to reinstate on March 5, 1976, thirty-five days after plaintiff had notice of the dismissal. The appellate court held that the reinstatement was improperly granted because it was done at a time when the trial court had lost its jurisdiction.


text:
    INTERNATIONAL HARVESTER COMPANY and International Harvester Credit Corporation, Appellant, v. Francis ROTELLO, Appellee.
    No. 17318.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 22, 1979.
    Rehearing Denied April 26, 1979.
    Vinson & Elkins, Robert A. Rowland, III, Houston, for appellant.
    Sears & Burns, C. Charles Dippel, Houston, for appellee.
    Before COLEMAN, C. J., and DOYLE and PEDEN, JJ.
   DOYLE, Justice.

In March of 1974, plaintiff and appellee, Francis Rotello, (Rotello) entered into an installment contract for the purchase of a farm tractor with International Harvester Company (IHC). Execution of the contract took place at the IHC store in Bryan, Brazos County, Texas. The contract displayed on its face a stated cash price of $17,214.00 and a stated deferred payment price of $23,082.10. The difference between the cash price and the deferred payment price, the amount of $5,868.10, is denominated as finance charge. Rotello chose the deferred payment price, made a down payment of $3,000.00 and agreed to pay the remaining $20,082.10 in four annual installments beginning in May 1975. After a refinancing arrangement with International Harvester Credit Corporation (IHCC) of Dallas, Dallas County, Texas, to whom IHC had assigned Rotello’s contract, Rotello paid the contract in full in October 1977. In March 1978, Rotello, a non-resident of Brazos County, brought suit against IHC and IHCC in Brazos County for usury penalties claiming that the 1974 contract was in violation of the Texas Consumer Credit Code because IHC had entered into a contract for usurious interest and IHCC had actually collected and received such interest. The suit by Rotello was filed in Brazos County, Texas, where the contract was made, pursuant to the venue statute 1995, exception 30 and sections 5069-1.06 and 5069-8.04 of the Texas Consumer Credit Code. Each of the defendants filed answers and pleas of privilege to be sued in Dallas County, Texas, the county of their residence.

From the order of the trial court overruling both pleas of privilege, the defendants have perfected this appeal.

Defendants contend by their points of error 1 and 2 that the trial court erred in overruling defendants' pleas of privilege because Rotello failed to establish the venue facts necessary under an exception to venue set out in Art. 5069-1.06, V.A.T.S., and that the trial court further erred in overruling the pleas because the evidence established conclusively that the finance charge involved was a valid time-price differential and was not usurious under Texas law.

The question of whether venue may be sustained by invoking the provisions of art. 5069-1.06(3) has been before the courts of this state on many occasions. To maintain venue in Brazos County, the plaintiff in our case must allege and prove at least one of the following venue facts: (1) that at least one of the defendants, IHC or IHCC, resided in Brazos County; (2) that usurious interest was received or collected by defendants in such county; (3) that the usurious contract was entered into in such county; (4) that plaintiff, (Rotello) who paid the usurious interest on such contract, resided in Brazos County at the time the contract was made. Universal Credit v. Dunklin, 129 Tex. 324, 105 S.W.2d 867 (1937); Ballard v. Shock, 91 S.W.2d 385 (Tex.Civ.App.-Eastland 1933, no writ).

Art. 5069-1.06 provides for the usury penalty only where a person “contracts for, charges or receives interest” greater than the amount authorized by law. The article defines interest in 1.01 as follows:

“Interest” is the compensation allowed by law for the use or forbearance or detention of money; provided however, this term shall not include any time price differential however denominated arising out of a credit sale.

Plaintiff contends that the facts of our case bring it within such definition of interest, while the defendant argues that such facts constitute.a valid time-price differential transaction, expressly excluded under the Texas usury law. Time-price differential is defined twice under the article with reference to retail installment sales and motor vehicle installment sales, respectively.

Art. 5069-6.01(h):

“Time price differential,” however denominated or expressed, means the amount which is paid or payable for the privilege of purchasing goods or services to be paid for by the buyer in installments over a period of time. The term includes the amount authorized by this Chapter when the party has amended the contract to renew, restate, or reschedule the unpaid balance thereof or to extend or defer the scheduled due date of all or any part of any installment or installments.

Article 5069 7.01(i):

“Time price differential” means the total amount to be added to the principal balance to determine the balance of the buyer’s indebtedness to be paid under a retail installment contract.

With these definitions before us, we shall now examine the facts. These are the relevant portions of the retail installment contract:

The contract entered into between International Harvester Company and Rotello states a cash price and a deferred payment price containing a time-price differential, denominated therein as a finance charge. Rotello testified that at the hearing on the pleas of privilege he knew he could either buy the tractor for the cash price of $17,214 or pay for it over a period of time for an additional charge. He testified that he chose the latter method of paying for the tractor, that is, on time credit, with an additional charge made therefor. He knew that the deferred payment price would be $23,082.10.

The face of the retail installment contract reflects that a finance charge of 15.9% per annum was added to the cash price to arrive at the credit price. This method of computing the time-credit price was expressly approved in Rattan v. Commercial Credit, 131 S.W.2d 399 (Tex.Civ.App.-Dallas, 1939, writ ref’d); Standard Supply & Hardware Company v. Christian-Carpenter Drilling Company, 183 S.W.2d 657 (Tex.Civ.App.-Galveston, 1944, writ refused); Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249 (Tex.Civ.App.-San Antonio, 1978, writ ref’d n. r. e.).

In the Rattan case, supra, the purchaser was given a choice of buying a new automobile for a cash price of $1,125 or a deferred credit price of $1,310. The purchaser elected to purchase at the credit price, paying $375.00 down, and agreeing to pay the remaining $936.00 in monthly installments over a two year period. After default, upon a suit for the balance by the seller, the purchaser raised the defense of usury. The judgment of the trial court for the seller was affirmed on appeal, the court holding that no interest was charged in this transaction; and, therefore, the seller was not guilty of any usury. In its fully detailed opinion, the court stated:

No money changed hands in the transaction in the form of a loan, nor was any charge made for the use, detention or forbearance of any money. The transaction was simply a sale for credit at a higher price than for cash, calculated on a known basis for the seller to realize the cash price of an automobile by subsequent sale of the note and mortgage through commercial channels. Where, in a bonafide sale, no loan of money is involved, a purchaser buys an automobile from a regular automobile dealer for a credit price, known to the purchaser to be higher than the cash price, and signs a note and chattel mortgage for the unpaid balance, such transaction is an actual sale of the automobile on time or credit selling price, mutually agreed upon by the parties, and such note and mortgage thus given for the balance, providing for interest, only in the case of default, at the highest legal rate, is not usurious. A seller may demand one price for cash and another and greater price upon credit, and it would not be usury.

The Court of Civil Appeals was faced with the problem of distinguishing between interest and finance charges in Lusk v. General Motors Acceptance Corporation 395 S.W.2d 847 (Tex.Civ.App.-Tyler, 1965, no writ). In that case the court found that a finance charge of $561.10 was added to a cash price of $2,336.18 making a total credit price of $2,897.28 in a transaction involving a conditional sales contract. There the court, in holding against the Lusks, pointed out that the initial finance charge was not interest and that the $561.10 charge was not designated on the face of the contract as interest but rather as finance charges.

The original contract between Rotello and International Harvester Company is not usurious on its face. The contract provided for four annual payments and a time-price differential of 15.9%. The cash price, the deferred payment price, and the finance charge all are displayed on the face of the retail installment sales contract.

From the authorities cited and checked, if the retail installment contract shows on its face that there is a cash price and a deferred payment price which are revealed to the purchaser at the time of the making of the contract, and that the finance charges are set forth as such, the amount of such finance charges will not be deemed interest, but a time-price differential paid for privilege of purchasing goods or services to be paid for by the buyer in installments over a period of time. We find the contract between Rotello and IHC falls squarely between these guidelines and is without the purview of the usury law. Defendants’ points of error one and two are sustained.

We have checked all cases cited by Rotel-lo to show that the subject contract was not a time-price contract. G. F. C. Corporation v. Williams, 231 S.W.2d 565 (Tex.Civ.App.-Dallas 1950, writ ref’d n. r. e.) is distinguishable. In that case only one price was offered to the purchaser. Again in Gifford v. State, 229 S.W.2d 949 (Tex.Civ.App.-El Paso 1950, no writ); Associates Investment Co. v. Ligon, 209 S.W.2d 218 (Tex.Civ.App.-Austin 1948, no writ) and Associates Investment Co. v. Sosa, 241 S.W.2d 703 (Tex.Civ. App.-San Antonio 1951, err. dism.), all cases cited by Rotello, the seller offered only one price to the purchaser. The Rattan v. Commercial Credit Co. case, supra, sets forth a two-price requirement. It is interesting to note that all cases cited by Rotello on the time-price differential contract recognize and approve the rule set out in the Rattan case, supra.

A large portion of Rotello’s brief is devoted to what the legislature did or did not intend by the various provisions of the Texas Consumer Credit Code. In this vein, Rotello argues that if a time-price differential is exempted under 5069-1.01, then it must be usurious under the Texas Constitution Article XVI, Section 11, which provides that if the legislature does not fix a maximum rate, then a contract for a greater rate of interest than 10% per annum is deemed usurious.

No contention is made that the Texas Constitution does not give the legislature the authority to define interest. In its definition of interest the legislature has differentiated between interest and a time-price transaction. To date the legislature has not seen fit to redefine interest and this court is bound by the unambiguous provisions of art. 5069-1.01 and 6.01.

We have carefully considered the counterpoints urged by Rotello and the arguments and cases listed thereunder. We do not find them to be supported by the facts and the applicable law. We are unable to determine from the evidence that Rotello proved any venue exceptions necessary to sustain venue in Brazos County under Title 79.

The order of the trial court overruling defendants’ pleas of privilege is reversed and the trial court is directed to transfer venue of the case to the County of Dallas, Texas.


author: DICKENSON, Justice.

text:
    In re H. D. O.
    No. 5237.
    Court of Civil Appeals of Texas, Eastland.
    March 29, 1979.
    Rehearing Denied April 26, 1979.

      William D. Dupree, West Texas Legal Services, Fort Worth, for appellant.
    John S. Watts, Hamlin, Joe Edd Boaz, Anson, Joanne H. Strauss, Abilene, for ap-pellee.
   DICKENSON, Justice.

Patricia O’Keefe Salmons and Debbie Hallmark, petitioners, are the paternal aunts of H.D.O., a minor child. Petitioners sought a termination of the parent-child relationship between H.D.O. and her natural parents. Petitioners also asked that one of the petitioners, or the minor child’s paternal grandmother, be appointed as managing conservator of the child. The child’s parents were granted a divorce on the same day petitioners’ suit was heard. After a nonjury trial, the petition for termination of parental rights was denied, but Patricia O’Keefe Salmons was appointed managing conservator of the child. The mother has appealed. We affirm.

Appellant’s first point of error is that she “was denied her Sixth Amendment rights at critical stages of the termination proceedings and thus the trial court erred in altering conservatorship.” We disagree. She contends that her right to legal counsel was denied in two critical instances. First, she asserts that she was unrepresented during the deposition of a witness who gave damaging testimony which was admitted over her objection at the hearing of the suit affecting the parent-child relationship. However, the record shows that she and the child’s father did in fact have an attorney of record who received proper notice of that deposition. The record shows that appellant has had four different attorneys of record. Second, under this point she also complains that the trial judge limited the scope of cross-examination during the trial. The record shows that no attempts were made to perfect bills of exception to show what evidence was excluded by the court, and nothing is presented for us to review under Rules 372 and 373, Tex.R.Civ.P. (1967). Matter of Marriage of Goodwin, 562 S.W.2d 532 (Tex.Civ.App.—Texarkana 1978, no writ).

Appellant’s second point of error is that the trial court denied her “fundamental right to family integrity by applying an unconstitutional ‘best interest of the child’ standard.” We disagree. Section 14.-07(a), Texas Family Code (1975), expressly provides that:

The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.

Appellant cites no cases holding that this standard of “best interest of the child” is unconstitutional, and we know of none. Appellant attempts to rely upon Sims v. State Department of Public Welfare, 438 F.Supp. 1179 (U.S.D.C., S.D.Tex., 1977), which held that Sections 11.10, 11.15, 17.02, 17.03, 17.05, 17.06, 34.05(c) and 34.08, Texas Family Code, are unconstitutional on their face. Appellee cites the recent case of Woodard v. Texas Department of Human Resources, 573 S.W.2d 596 (Tex.Civ.App.—Amarillo 1978, writ filed) which states that:

Respectful consideration is due a lower federal court decision, and it is accorded the decision in Sims v. State Department of Public Welfare, supra; yet, as was held in United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970), cert. denied 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971), in circumstances somewhat similar to those existing in the present appeal, state courts are not concluded by a lower federal court decision on an identical question of law which arises in a later unrelated cause. The rationale expressed is that while the state courts and lower federal courts are subject to the supervisory jurisdiction of the United States Supreme Court as the final arbiter on all questions of federal constitutional law, there is a parallelism, but not paramountcy, for both the state courts and the lower federal courts in passing on federal constitutional questions. 432 F.2d at 1075-76. Accord, Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965), which holds that states are not obliged to follow decisions of the federal circuit court whose circuit includes their state.

We note that Sims does not pass upon the validity of Section 14.07(a), Texas Family Code (1975). We hold that this section of the Family Code is valid and that the “best interest of the child” standard does not violate the due process clause or the equal protection clause of the 14th Amendment to the Constitution of the United States and that it does not violate Article 1, Section 19, Texas Constitution of 1876 (1955).

The third point of error is that the trial court erred because there was no clear and convincing evidence that it was in the child’s best interest to alter conservatorship. We disagree. The trial court’s findings of fact recite that they are based upon clear and convincing evidence, and they support the trial court’s decision to appoint Patricia O’Keefe Salmons as managing conservator of the minor child. There is evidence in the record to support those findings of fact, and it would serve no useful purpose to review the evidence in detail. Under a “no evidence” point of error, we are to consider only the evidence and inferences which support the findings of the trial court. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963).

The fourth point of error is that the trial court erred in altering conservatorship when the guardian ad litem made no specific recommendation. We disagree. A guardian ad litem was appointed to represent the minor, and he participated in the trial. At the close of testimony, the guardian ad litem stated:

The circumstances that the child was under were perhaps not as desirable as any of us would like to see. I agree with the opinion of Nancy Winkels (employee of Texas Department of Human Resources) that there is no need for termination of parental rights as to either parent in this case. I think it’s unfortunate that we don’t have a form of probation. . . It’s instances like this that make me glad that I’m not a judge or a one man jury, because I think the Court has a hard decision in the case of keeping the best interest of the child in the proper perspective. .

In this case, the trial court fully complied with the provisions of Section 11.10, Texas Family Code (Supp.1979). The fact that the guardian ad litem did not make a specific recommendation on the change of con-servatorship did not deprive the trial court of its power, and its responsibility, to make a decision based upon the evidence under the “best interest of the child” standard.

The fifth point of error is that the trial court erred in altering conservator-ship “because the best credible evidence proves that the appellant was a fit and competent mother and the most appropriate person to have custody.” This point is overruled. Evidence on this point was disputed, and the matter of determining who should be appointed managing conservator was addressed to the sound discretion of the trial court. The trial judge has an opportunity to observe and evaluate the personalities of the witnesses and to weigh the credibility of the testimony. His judgment should be reversed only when it appears from the record as a whole that he has abused the discretion entrusted to him. Fergus v. Fergus, 547 S.W.2d 51 (Tex.Civ.App. — Eastland 1977, no writ). We have reviewed the entire record, and we hold that the judgment of the trial court is supported by the evidence and that the trial judge did not abuse his discretion in appointing the aunt managing conservator of the child and appointing the parents possessory conservators with reasonable rights of visitation.

The sixth point of error is that the trial court erred in denying specific visitation to appellant. We find no reversible error, and this point is overruled. As this court said in Fergus v. Fergus, supra:

The judgment fails to specifically “set the time and conditions for possession of or access to the child” by the possessory conservator. The judgment states only that the possessory conservator has “reasonable visitation rights”. We think that under the current Family Code this language is inappropriate and should be avoided. It is clear that Subsection (a) of Article 14.03 contemplates that the time and conditions for possession of or access to the child by the possessory conservator be expressly stated in the judgment. We do not think, however, that the court committed error in using the traditional phrase “reasonable visitation rights”. We conclude that such language means that the possessory conservator is entitled to possession of or access to the child, Michael V. Fergus, at reasonable times and under reasonable conditions.
We hold the court did not abuse its discretion or err as a matter of law in failing to prescribe expressly in the judgment the rights, privileges, duties, and powers of the possessory conservator.

All points of error have been considered, and they are overruled. The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    Michael McGUIRE, Appellant, v. Christy Joyce BROWN, Appellee.
    No. 12877.
    Court of Civil Appeals of Texas, Austin.
    April 4, 1979.
    Rehearing Denied May 2, 1979.

      Larry J. Dowling, Austin, for appellant.
    Gene Y. Stratton, Bertram, Clayton E. Evans, Burnet, for appellee.
   SHANNON, Justice.

This appeal concerns the termination of a parent-child relationship pursuant to Tex. Family Code Ann. § 15.02 (Supp.1978).

Appellee Christy Joyce Brown filed suit in the district court of Burnet County seeking termination of the parent-child relationship between her former husband, appellant Michael McGuire, and their only child, Erin McGuire. After trial to a jury, the district court entered judgment terminating the parent-child relationship.

Appellee and appellant were divorced January 14, 1976, by order of the district court of Burnet County. Erin McGuire was bom May 22, 1973. According to the parties, the divorce judgment named appellee and appellant joint managing conservators and ordered neither to pay child support. Appellee married her present husband on March 23, 1976.

In her trial pleading, appellee asserted as grounds for termination that: (1) appellant had failed to support the child for a period in excess of one year ending within six months of the filing of suit; and (2) appellant had engaged in conduct which endangered the physical and emotional well-being of the child. Appellee also pleaded that termination of the parent-child relationship between appellant and the child was in the best interest of the child.

The court’s charge contained three special issues. The jury answered: (1) that appellant failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; (2) that appellant had engaged in conduct which endangered the physical or emotional well-being of the child; and (3) that termination of the parent-child relationship between appellant and the child was in the best interest of the child. The district court entered judgment in accordance with the jury verdict.

Appellant complains of the judgment by seven points of error. Points one and two are that there is no evidence, or insufficient evidence, to support the jury’s answer that appellant failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of suit. Point three is that there is no evidence that termination of the parent-child relationship was in the best interest of the child.

In considering a “no evidence” point, the reviewing court must reject all evidence contrary to the jury’s findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). In reviewing factual sufficiency points of error, the court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

Texas Family Code Ann. § 15.02 (Supp. 1978) empowers the court to grant a petition requesting termination of the parent-child relationship of a non-requesting parent when:

“(1) the parent has:

(E) engaged in conduct which endangers the physical or emotional well-being of the child;
or
(F) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
(K) . . and in addition, the court further finds that
(2) termination is in the best interest of the child.”

The evidence with respect to failure to support, § 15.02(1)(F), is that appellant is thirty years old, healthy, and able to work. After entry of the divorce judgment, appellant went to Chicago and worked in commercial photography darkrooms. He also attended photography classes at an art institute located in Chicago. After several months in Chicago, appellant returned to Austin. In Austin he has worked in a photography laboratory and as a carpenter. The owner of the Austin photography lab testified that appellant was paid $2.50 an hour and worked about thirty-five hours a week. Appellant earned about $800.00 monthly as a carpenter. Appellant has not remarried, and has no unusual expenses.

On direct examination, counsel asked appellant whether he sent “. . any money at all to [appellee] during that year [the year ending within six months of the filing of suit]?” Appellant responded, “Yes I am sure I did.” Appellant admitted, however, that the sum sent was “. not very much.” Appellee testified that although she had requested appellant many times to help support the child, he had never done so, other than to make one $20.00 payment for the entire year. On the last occasion appellee asked appellant for support for the child, appellant not only refused her but also cursed her so violently in the presence of the child that appellee’s father threw appellant out of the house.

To support the child, appellee worked as a sales clerk in her mother’s shop in Horseshoe Bay. She also worked as a ranch hand on her father’s ranch, planting and gathering hay, fixing fences, and helping with the cattle. Appellee also borrowed money from her parents to buy necessaries for the child.

Appellant claimed that, had he been ordered by the court to make child support payments, he would have done so. Appellant stated on cross-examination that the reason that he did not pay support for his child was “[b]ecause I wanted to support him in my home and I wasn’t allowed to.” The parties had planned prior to the entry of the divorce judgment that appellee would support Erin in her home and appellant would support the child in his home, but that plan had not worked out. Appel-lee had denied appellant access to the child on several occasions.

In Holley v. Adams, 544 S.W.2d 367 (Tex.1976), David Adams filed suit to terminate the parent-child relationship between his former wife, Nanci Adams Holley, and their son. By the terms of the divorce decree, Adams had been named managing conservator of the child and Mrs. Holley had not been required to pay child support. One ground asserted by Adams as basis for termination was that Mrs. Holley had failed to support her child in accordance with her ability during a period of one year ending within six months of the filing of the suit for termination. Between 1970 and 1975, Mrs. Holley sent a total of $100.00 for the support of her son; she purchased and paid premiums for a health insurance policy covering her son; and she sent an assortment of gifts and toys to her son. From 1970 to 1972, Mrs. Holley was a housewife without outside employment. She obtained employment in 1972, earning a gross income of $500.00 monthly. Mrs. Holley declared voluntary bankruptcy in 1973. Mr. Holley received $300.00 monthly in education benefits and worked part-time. Under these facts the Supreme Court held that Mrs. Holley failed to support her child in accordance with her ability. The facts in the case at bar are much stronger in support of the jury’s finding of failure to support the child in accordance with appellant’s ability than were the facts in Holley.

Rejecting all evidence contrary to the jury’s finding and considering only the facts and circumstances that tend to support that finding, Renfro Drug Co. v. Lewis, supra, we are of the opinion that the jury’s finding that appellant failed to support the child in accordance with his ability was supported by some evidence. We are of the further view that the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, supra.

Point of error three is that there is no evidence to support the jury’s answer that termination of the parent-child relationship is in the best interest of the child. Appellant does not attack this answer of the jury upon the basis of insufficient evidence.

As we understand Holley v. Adams, supra, the fact finder may consider a number of factors in determining whether termination is in the best interest of the child. Among other things, the fact finder may consider: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.

The child’s maternal grandmother, Gloria Maclachlan testified that when appellant came to pick up the child for visitation, the child would pull back and declare that he did not want to go with appellant. Appel-lee’s evidence was that the child was always upset and crying when she picked him up after visitation with appellant. When appellant screamed and cursed appellee in response to her request for support, the child was present and was “upset” by appellant’s conduct.

Mrs. Maclachlan testified that on occasion she had witnessed appellant “under the influence” of drugs in the presence of the child. On one of these occasions Mrs. Ma-clachlan felt compelled to take the child from appellant’s possession because appellant was “. . very incoherent, and not in good enough shape to take care of this boy.” On more than one occasion, appellant asked Mr. Maclachlan, in the presence of the child “. . . to take dope with him, smoke marijuana.” Appellant testified on direct examination that he has stopped smoking marijuana.

Appellee testified to situations that reflected adversely upon appellant’s parental ability. For example, appellant once proposed that he and a female companion, known only as “The Phantom,” take Erin, then two and one-half years old, on a hitchhiking jaunt to Mexico. Another time, ap-pellee went to pick up the child from a visitation with appellant. Appellant and the child were visiting friends at a ranch in Burnet County. When appellee arrived, there was a party in progress at which some fifty persons were in attendance. Appellee observed at that gathering “[a] lot of drug use and a lot of drinking.” Appellee discovered Erin naked and very filthy. She found appellant in a tepee and in response to her inquiry as to the whereabouts of the child’s clothing, appellant’s response was “Here, there, everywhere.”

The evidence was that appellee and her husband provide Erin with a healthy, wholesome, and somewhat structured home life. Appellee and her husband seem to emphasize in their home the values of work, discipline, and motivation.

Appellant testified that he came from a creative background. Appellant expressed concern that Erin, in appellee’s home, would develop materialistic points of view. Appellant was concerned also that Erin would not receive what appellant considered to be a proper education in appellee’s home and in the Marble Falls schools. It could be inferred that appellant’s view was that Erin should be allowed to develop educationally and socially with little or no constraint. Henry Alexander Nolan, a child welfare worker who investigated the case, testified that appellant’s view of rearing Erin was “. . exactly conflicting with the viewpoint of [appellee and her husband].” Nolan testified that with the parties “. . having two such forceful viewpoints, both of them in a hundred and eighty degrees of each other and the child caught in the middle, it’s going to possibly damage the child’s upbringing as far as getting stability in one place and being taught just the opposite in the other place.”

Appellant’s failure to support his child in accordance with his ability is one of the factors which the jury could consider in ascertaining the best interest of the child. Holley v. Adams, supra. The jury could consider also, in ascertaining the best interest of the child, appellant’s excuses offered for failure to pay support: (1) that he was not ordered by the court to pay support; (2) that he wanted to support the child in his own home; and (3) that he was denied, on occasion, access to the child. See Holley v. Adams, supra.

Considering only the evidence most favorable to the jury’s finding and disregarding entirely what is opposed to it or is contradictory, Renfro Drug Co. v. Lewis, supra, we have concluded that the jury’s answer that termination of the parent-child relationship was in the best interest of the child is supported by some evidence. In reaching this conclusion, this Court, of course, does not pass judgment upon the credo of life expressed by either appellee or appellant. Instead, this Court simply holds that appellee has discharged her burden of producing some evidence in support of her contention that termination of appellant’s parental rights was in the best interest of the child. Under the evidence the jury could have concluded that the child dreaded visitations with appellant and returned from those visits emotionally upset; that appellant by use of drugs permitted himself to become unable to adequately care for the child during visitation; that appellant’s parental ability, judged by past conduct, was questionable; that appellee and her husband offered a stable home environment; and that appellant’s nonstructured view of learning and daily conduct, although perhaps appropriate enough for some adults, was not suitable for a small child. The jury could have considered appellant’s refusal to support the child in accordance with his financial ability, particularly in view of ap-pellee’s repeated requests for financial help. Although appellant testified that he loved Erin “[m]ore than anything in the world,” the jury could have believed that appellant evidenced but faint devotion when he repeatedly refused to help feed and clothe the child. The jury could have believed that appellee was justified in occasionally refusing to permit appellant to take Erin to his home in view of appellant’s past unsatisfactory conduct in caring for Erin during visitation. The jury, of course, was not required to believe appellant’s statement that he would have paid support payments if the court had ordered him to do so.

In Holley v. Adams, supra, Mrs. Holley failed to support her child in accordance with her financial ability. The Supreme Court in that case regarded the facts that Mrs. Holley was never ordered to pay child support and that her former husband never sought or wanted any support for the child from Mrs. Holley as establishing an excuse for nonpayment. In the case at bar and contrary to the facts in Holley, appellee was reduced to a hard-scrabble existence as a ranch hand and sales clerk to furnish necessaries for the child. Appellee, time after time, entreated appellant to help support Erin. Not only did appellant refuse to accede to those requests, he finally rebuffed appellee with angry oaths. Point of error three is overruled.

By points of error four and five, appellant claims that the district court erred in refusing to include in the court’s charge two requested special issues submitting “excuse” for failure to support the child in accordance with his ability. Appellant argues that affirmative answers to the “excuse” issues would bar entry of judgment of termination.

The Supreme Court in Holley v. Adams, supra, held that any “excuse” for the acts or omissions of the parents, § 15.-02(1)(A)-(K), can be considered by the fact finder only as one of the several factors in determining the best interest of the child. Although Holley v. Adams involved a court-tried case, we are of the view that the court’s reasoning in Holley requires that “excuse” in a jury case be submitted not by special issue, but instead by way of definition or instruction to the jury that “excuse” is one of the factors to be considered in determining the best interest of the child. Appellant, of course, did not request the submission of a substantially correct definition or explanatory instruction concerning excuse, and any error of the court in failing to instruct the jury with respect to “excuse” was waived. Tex.R.Civ.P. 279.

Appellant’s seventh point of error complains that the district court erred in refusing to charge the jury that, “[y]ou are instructed that in determining whether or not the best interest of the child will be served by termination of the parental rights of [appellant]. That there is a presumption in favor of the continuation of those rights [sic].”

The presumption to which appellant most probably refers in his requested instruction is discussed in such opinions as Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976), and Matter of R_ E_ W_, 545 S.W.2d 573 (Tex.Civ.App.1976, writ ref’d n. r. e.). In Spratlan the Supreme Court wrote, “[ajctions which break the ties between a parent and child ‘can never be justified without the most solid and substantial reasons.’ . . . Particularly in an action which permanently sunders those ties, should the proceedings be strictly scrutinized. This court has always recognized the strong presumption that the best interest of a minor is usually served by keeping custody in the natural parents. . . . ” Neither Spratlan nor R_ E_ W_ involved claimed error by the trial court in failing to instruct the jury concerning a legal presumption that the best interest of the child is served by a continuation of the parent-child relationship.

The sole effect of a presumption is to fix the burden of producing evidence. Presumptions are nothing more than rules for the guidance of trial judges in locating the burden of producing evidence at a particular time. 1 McCormick & Ray, Texas Law of Evidence § 57 (2nd ed. 1956). The trial court has to determine whether the opponent has produced sufficient evidence to support a finding of the nonexistence of the presumed fact; if so, the case will proceed as if no presumption exists. If such evidence is not produced, the jury will be directed either absolutely or conditionally to find the presumed fact. In the situation where the party against whom the presumption operates has the burden of persuasion (as well as the burden of producing evidence), the presumption will have no effect. No instruction to the jury was required. 1 McCormick & Ray, Texas Law of Evidence, supra. The point of error is overruled.

The judgment is affirmed.

Affirmed.

      . Special issue No. 3 provided: “Do you find from a preponderance of the evidence that termination of the parent-child relationship between the [appellant], and the child, Erin McGuire, is in the best interest of the child, Erin McGuire?” The “best interest of the child” was not defined in the charge. Appellant did not request a substantially correct definition of the “best interest of the child,” and appellant has. no point of error attacking the judgment for the court’s failure to define the term. Any error by the court in failing to define the term, of course, has been waived. Tex.R.Civ.P. 279. Appellant did request one instruction with respect to the “best interest of the child.” The court’s refusal to include the requested instruction is the foundation for point of error seven.