author: PEDEN, Justice.

text:
    Ex parte Lewis John PAPPAS, Relator.
    No. 17060.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 29, 1977.
    Rehearing Denied March 9, 1978.

      Boswell, O’Toole, Davis & Pickering, Martin J. Grimm, Houston, for appellant.
    Keith A. Mullins, Houston, for appellee.
   PEDEN, Justice.

Relator in this habeas corpus proceeding was found in contempt of court for failing to make child support payments. He asserts in his unsworn application that the support order in the divorce decree lacks specificity, that he was deprived of a statement of facts because the trial judge failed to provide a court reporter or obtain written waivers from the parties, and that after suspending the punishment for contempt, the court was required to afford him another hearing before committing him. The writ is denied.

Relator first complains of lack of specificity of the support order, relying on Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). In that case the decree stated that support was ordered for “three minor children until said children attain the age of eighteen years . . . The Supreme Court held:

“It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.”

Relator in the case at bar asserts that the child support order does not inform him of how and where to make the payments. The order states:

“It is further ORDERED by the Court that the Respondent shall pay the sum of ONE HUNDRED AND NO/lOO ($100.00) DOLLARS per month to the Petitioner for the support and maintenance of said child, with the first of said payments of $100.00 to be made on or before the 1st day of December, 1972, and a like sum to be paid on or before the 1st day of each month thereafter until further Order of the court, or until said minor child attains the age of eighteen (18) years.”

We do not find this order ambiguous. It identifies the payee and states the amount to be paid. Any difficulties encountered by the relator in locating his ex-wife do not render the order void.

Relator next contends that the trial court erred in failing to provide a court reporter since it obtained no written waiver of the parties. Relator relies on Smith v. Smith, 544 S.W.2d 121 (Tex.1976), which held: “if an appealing party exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be presented in no other way.” The Smith case involved a petitioner who was neither present nor represented at the hearing on the merits. He showed that he had used due diligence in his attempt to procure a statement of facts.

Mr. Pappas was present at the hearing. A case more directly in point with the issue presented in our case is Bledsoe v. Black, 535 S.W.2d 795 (Tex.Civ.App.1976, no writ). Mr. Bledsoe contended, as does Mr. Pappas, that the trial court erred in failing to require a court reporter under Section 11-14(d) of the Texas Family Code.

“§ 11.14(d) A record shall be made as in the civil cases generally unless waived by the parties with the consent of the court.”

Article 2324 of Vernon’s Texas Civil Statutes states the rule on court reporters in civil cases generally. It was amended, effective May 27, 1975, to provide for a court reporter only “upon request.” The Bledsoe case held that this additional request requirement rendered the appellant’s complaint invalid if he failed to show that he had objected or excepted to the absence of the court reporter or that a court reporter had been requested. Having failed to show a request or an objection, Mr. Pappas has waived this point.

Relator’s final point is that since his punishment under the original contempt order was suspended for a period of time, he should have been given an additional hearing before being immediately committed to the custody of the sheriff. The contempt order finds relator in contempt and assesses the punishment which is then suspended upon the following terms:

“1. That Respondent LEWIS JOHN PAPPAS pay the sum of $5,400.00 ar-rearage in child support on or before October 11, 1977.
2. That Respondent pay the costs of this proceeding, to-wit: $38.00 to the District Clerk of Harris County, Texas, and $250.00 to Keith A. Mullins, attorney for Movant, by 9:00 A.M. on the 11th day of October, 1977.
IT IS FURTHER ORDERED that this case is reset until October 11, 1977, at 9:30 A.M. in the courtroom of the Court of Domestic Relations Number Two, Harris County, Texas, and that unless Respondent has complied by that time with all of the above conditions to purge himself of contempt, he shall immediately be committed to the custody of the Sheriff of Harris County, Texas, to be confined in the county jail at Houston, Harris County, Texas, as herein ordered, and that all commitments, writs, attachments and other process necessary for the enforcement of this decree be issued at that time.”

It has been held in two recent cases that an order finding one in contempt but suspending punishment on condition of compliance with the order provides no authority in itself for arrest and confinement; a subsequent hearing on the alleged breach of the condition and an unconditional commitment are necessary. Ex parte Sauser, 554 S.W.2d 239, 241 (Tex.Civ.App.1977, no writ); Ex parte Hart, 520 S.W.2d 952, 953 (Tex.Civ.App.1975, no writ).

The order of commitment in our case recites that this cause “came on to be heard” and that “the court after having heard all the evidence and arguments . .” The relator has not filed either a statement of facts or a bill of exception in this collateral attack on the trial court’s order. His unsworn allegation as to lack of a second hearing does not overcome the recital in the commitment order or the presumption of regularity.

Issuance of the writ is denied.

On Motion for Rehearing

Relator attended the contempt hearings. He complains that the trial judge “proceeded to trial on the motion for contempt without providing for the transcription of same by a court reporter or obtaining the written waivers of the parties of their respective rights to such transcription, as is required by Section 11.14(d), Texas Family Code .” (emphasis added). We find no requirement in Section 11.14(d) that the waiver of the record be in writing. Since habeas corpus proceedings constitute collateral attacks, the relator must demonstrate that the commitment is void. This he has been unable to do.

Mr. Pappas’ principal contention seems to be that he is now unable to pay, but a relator’s defense of inability to perform depends on his conclusively establishing that at the time of the contempt hearing he was unable to comply with the court’s order, (emphasis added). Ex parte Rohleder, 424 S.W.2d 891 (Tex.1967). Again, he must show that the contempt order was void.

We overrule the motion for rehearing. However, since the relator has given an indication of his inability to pay at the time of the contempt hearing by spending seven days in jail, we believe that the trial court might well consider granting another hearing at which relator’s ability to pay at the time of the contempt hearing and any other extenuating circumstances might be more fully developed and might be recorded. If unable to purge himself, he might remain in jail for the balance of his natural life. Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145 (Tex.1948).


source: Caselaw Access Project

author: COLEMAN, Chief Justice.

license: Public Domain

text:
    Nancy Kway DAVIS, Appellant, v. TENNESSEE LIFE INSURANCE COMPANY, Appellee.
    No. 17020.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 26, 1978.
    Rehearing Denied March 16, 1978.

      R. E. McDaniel, Winnie, for appellant.
    Zbranek & Hight, J. C. Zbranek, Liberty, for appellee.
   COLEMAN, Chief Justice.

Nancy Kway Davis, the administratrix of the estate of Charles M. Davis, deceased, sued Tennessee Life Insurance Company to recover the proceeds of a policy of insurance on the life of Charles Davis. Nancy Kway Davis appeals from a take-nothing judgment. The judgment will be affirmed.

Prior to June, 1966, Charles Davis was employed by Reading and Bates Exploration Company, or an affiliated company, as an oilfield worker. Subsequent to his first employment, the company began the practice of requiring written contracts of employment. His last employment contract was executed in June, 1969.

Reading and Bates Offshore Drilling Company maintained employment and compensation records for all of its subsidiaries. There is evidence that it was the employer for all personnel except for certain individuals not citizens of the United States, and that it assigned the employees to various subsidiary companies. The 1969 employment contract, as did previous contracts, provided that as a condition of employment Davis agreed to sign up for the company’s normal hospitalization, medical and life insurance group programs for himself and his family. Reading and Bates Offshore Drilling Company had in effect certain group life insurance policies with Tennessee Life Insurance Company. Charles Davis became an insured under the provisions of these group policies on becoming an employee. While policy No. 1264 was in effect, Charles Davis was killed in an accident. Tennessee Life Insurance Company paid the sum of $40,000.00 to Bessie Carr, the mother of Charles Davis, as the designated beneficiary of that policy although it was on notice of the fact that Nancy Kway Davis claimed an interest in the proceeds.

Mrs. Davis’ claim is based on her contention that there was no valid designation of a beneficiary for the insurance policies in question. She contends that as administra-trix of the estate of Charles Davis, she is entitled to the proceeds under the terms of policy No. 1264 issued in 1968.

Prior to the issuance of policy No. 1264, Davis’ life was insured under Tennessee Life Insurance Company Group Policy No. 637. There was testimony that policy No. 1264 was issued to supersede No. 637 because there had been a number of endorsements to policy No. 637 and the company desired to increase the coverage under the policy. The insurance premiums were paid entirely by Reading and Bates. By agreement with Tennessee Life Insurance Company, some one of Reading and Bates’ employees issued certificates of insurance in the appropriate amount to all of the employees on forms furnished by the insurance company. There was testimony that the amount of insurance an employee was entitled to receive depended on his salary. When it increased to the extent that he was entitled to additional insurance a new certificate would be issued to him which would replace previous certificates. There was evidence that at the time an employee first began work for Reading and Bates he was required to sign a card designating a beneficiary for the insurance to which he was entitled. On June 28, 1966, Charles M. Davis signed such a card thereby designating Bessie Carr as his beneficiary for group life and group accidental death insurance. No specific policies of insurance are referred to in this designation card. At that time policy No. 637 was effective.

Reading and Bates Offshore Drilling Company made an application in writing to Tennessee Life Insurance Company on March 1, 1968, for group life insurance. This application recites that the policy for which application is made would replace policy No. 637. Group policy No. 1264 was issued in response to this application. It provides that each employee shall have the right to designate a beneficiary upon becoming insured, and the right to revoke at any time any previous designation and make a new designation by giving through the owner written notice to the company at its home office. The policy defines the term “owner” as being Reading and Bates Offshore Drilling Company. The policy also provides that if there is no living designated beneficiary at the death of the insured, the amount then payable shall be paid to the executors, administrators or assigns of the employee.

The policy provides that the company will issue to the owner for delivery to each insured employee an individual certificate containing statements as to the insurance protection to which the employee is entitled and to whom it is payable, the effective date of the certificate, the beneficiary designation, and the conversion privilege.

Article 3.50 of the Insurance Code of the State of Texas places certain restrictions on insurance companies issuing group insurance policies. Paragraph 6 of Article 3.50, § 2 provides that the group life policy contain a provision that any sum becoming due by reason of the death of a person insured shall be payable to the beneficiary designated by the person insured, subject to the provisions of the policy in the event there is no designated beneficiary living at the death of the person insured. Paragraph 7 provides that the policy shall contain a provision to the effect that the insurer will issue to the policyholder for delivery to each person insured an individual certificate setting forth a statement as to the insurance protection to which he is entitled and to whom the insured’s benefits are payable.

The insurance contract on which Nancy Kway Davis sues necessarily includes not only the master policy but also the certificate of insurance issued to Charles M. Davis. Board of Insurance Commissioners v. Great Southern Life Insurance Co., 150 Tex. 258, 239 S.W.2d 803 (Tex.1951); Wann v. Metropolitan Life Insurance Company, 41 S.W.2d 50 (Tex.Comm’n App.1931, holdings approved).

The jury found that Reading and Bates issued a certificate of insurance on policy No. 1264 to Charles M. Davis showing his mother, Bessie Carr, as the beneficiary. It further found that Tennessee Life Insurance Company agreed with the Reading and Bates Companies that Reading and Bates would keep the beneficiary records on group policy No. 1264 and that Reading and Bates would issue certificates of insurance on group policy No. 1264 for it.

Mr. Phillip J. Kirk testified that he was the Manager of Public and Employee Relations in charge of personnel and group insurance programs for Reading and Bates Offshore Drilling Company. He testified that Reading and Bates delivered to each employee the Tennessee Life Insurance Company certificate of insurance which showed the amount of their insurance and the beneficiary’s name. He testified that the company required its employees to fill out cards designating the beneficiaries for their insurance when they were hired. These cards were sent to his office for filing and the record of the beneficiary designations were maintained in his office. No copies of the certificates of insurance were maintained.

A representative of the Tennessee Life Insurance Company testified that the company furnished to Reading and Bates certificates of insurance in blank which they authorized Reading and Bates to complete and deliver to their employees. There was evidence that the certificate of insurance issued to Charles Davis was lost. He was drowned after a ship wreck and the personal effects he had with him were lost. The testimony shows that a certificate of insurance was issued to Charles M. Davis stating that Tennessee Life Insurance Company has insured Charles M. Davis under group policy No. 1264 issued to Reading and Bates Offshore Drilling Company, subject to the terms and conditions of the said policy, effective February 15, 1969. The certificate recited that the principal sum of the life insurance was $20,000.00 and the principal sum of the accidental death and dismemberment insurance was $20,000.00. It further recited that Bessie Carr, Mother of Charles M. Davis, was the beneficiary of the policies.

Where an instrument refers in specific terms to another instrument in such a way as to show a clear intention to make it a part of the contract, both instruments must be introduced into evidence before a recovery can be had thereunder. Here the group policy refers to the certificate, and the certificate is shown by the evidence to have referred to the group policy. Before Nancy Davis could recover the insurance proceeds under the terms of the certificate, she necessarily had to allege and prove that the provisions of the policy, when construed in connection with the certificate, entitled her to recover for the death of Charles Davis. Wann v. Metropolitan Life Insurance Company, supra.

Since the certificate issued to Charles Davis showed that Bessie Carr was the beneficiary, the burden of proving that the real beneficiary was someone other than Bessie Carr rested on Nancy Kway Davis. Follenfant v. Rogers, 359 F.2d 30 (5th Cir. 1966); Brown v. Union Central Life Insurance, 72 S.W.2d 661 (Tex.Civ.App.—San Antonio 1934, no writ).

No issues were submitted which would have established facts from which it could be concluded that Bessie Carr was not validly designated the beneficiary of the policies. Facts do not appear in the record which as a matter of law require such a conclusion. There is evidence that would support the conclusion that Charles Davis was furnished several certificates of insurance after he was employed by Reading and Bates. It could be concluded that each of these certificates showed the beneficiary as being Bessie Carr. There is nothing in the record to indicate that Charles Davis ever attempted to change the beneficiary shown on any of the certificates issued to him including the one in force at the time of his death. We are not aware of a rule of law which would prohibit Charles Davis from authorizing Reading and Bates at the time of his employment to insert the name of his mother, Bessie Carr, as beneficiary in any policy of insurance which Reading and Bates should procure for his benefit.

The appellant contended in the trial court that under his employment contract and the group policy, Charles M. Davis was entitled to insurance in the sum of at least $60,-000.00. If the trial court erred with regard to matters relating to the amount of insurance to which Charles Davis was entitled, the errors, if any, do not affect the judgment that Nancy Kway Davis take nothing and are immaterial. The appellant has presented 37 points of error. These points have been considered and are found to be without merit or else to be immaterial in view of our holdings on the questions discussed.

The appellant contends that as the putative wife of the deceased, Charles Mason Davis, she is entitled as a matter of law to half of the proceeds of the insurance policies whether or not Bessie Carr is found to be a named beneficiary.

The right to receive insurance proceeds payable at a future but uncertain date is “property”. Such property is said to be in the nature of a chose in action which matures at the death of the insured. When the policy is purchased with community funds, the ownership of the unmatured chose belongs to the community, unless, in the absence of fraud, it has been irrevocably given away under the terms of the policy. The proceeds at maturity are likewise community in character, except where a named beneficiary is surviving, in which case a gift of the policy rights to such beneficiary is presumed to have been intended and completed by the death of the insured. Brown v. Lee, 371 S.W.2d 694 (Tex.1963).

The same principles would seem to be applicable in the case where the insurance premiums were paid with partnership funds. Even in a case where such a payment is made by one partner without the authorization of the other partners, the proceeds of the policy would belong to the named beneficiary rather than to the partnership. While the partner who is guilty of the unauthorized use of the partnership funds might be liable to his partners for the funds used, his conduct would not affect the insurance company’s liability to the named beneficiary, or create a right in his partners against the insurance company.

The trial court did not err in denying Nancy Kway Davis any interest in the proceeds of the insurance policies.

The judgment is affirmed.


author: KLINGEMAN, Justice.

text:
    URBAN RENEWAL AGENCY OF the CITY OF SAN ANTONIO, Appellant, v. Angelina ABDO et al. and Joseph Abdo et al., Appellees.
    No. 15814.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 27, 1978.
    Supplemental Opinion Feb. 22, 1978.
    Rehearing Denied March 22, 1978.

      Phillip D. Hardberger, Josephine M. Hall, Hardberger, Branton & Herrera, Inc., San Antonio, for appellant.
    Arthur C. Troilo, Jr., Sawtelle, Goode, Davidson & Troilo, Richard J. Karam, San Antonio, for appellees.
   KLINGEMAN, Justice.

This is a condemnation case instituted by the Urban Renewal Agency of the City of San Antonio, appellant herein, to acquire two separate parcels of property owned by several members of the Abdo family, appel-lees herein. One of the tracts involved is designated as Parcel No. 471 and is located in the 800 block of West Commerce in San Antonio; the other tract is designated as Parcel No. 462 and is partially in the same block of West Commerce and also on Leona Street. The property involved is chiefly rent property, including a barber shop, lounge, portrait shop, sewing machine shop, cafe, and three hotels. Both buildings are three story structures built over fifty years ago. Suit was brought separately as to the two tracts, and after a hearing before the Special Commissioners and entry of an award, appellant deposited the amount of such awards in the registry of the court, to-wit: (a) $124,000.00 as to Parcel No. 462 and (b) $42,500.00 as to Parcel No. 471.

Appellant then obtained a court order for a writ of possession pursuant to which it took possession of the property on December 17, 1975. Both appellant and appellees timely filed objections to the awards of the Special Commissioners. The two cases were then consolidated. In answer to the two special issues submitted the jury found (1) the value of the property known as Parcel No. 462, on December 17, 1975, was $250,000.00; (2) the value of the property known as Parcel No. 471, on December 17, 1975, was $100,000.00.

Appellant then filed (a) motion to dismiss the condemnation proceedings; (b) motion to withdraw amount of Special Commissioners’ awards; (c) motion for judgment n. o. v.; (d) motion to dismiss and refile condemnation suit. Appellees filed a motion for judgment and a motion to withdraw the deposit. Judgment was entered by the trial court that appellant recover the property involved from the appellees, and that appellant pay to appellees the difference between the amount awarded by the Special Commissioners and the amount found to be the value of the property in the condemnation proceedings by the jury. The trial court also entered an order allowing withdrawal of the funds by appellees. The court overruled appellant’s (a) motion for withdrawal of deposit, (b) motion for judgment n. o. v., (c) motion to dismiss, (d) motion to dismiss and refile, and (e) motion for new trial.

Appellant will sometimes be referred to herein as “Urban Renewal Agency” and appellees will be sometimes referred to herein as “the Abdos.”

Appellant’s first two points of error assert that the trial court erred in failing to grant its motion to dismiss because (1) there is no evidence that appellees cannot be restored to full possession; and (2) there is no evidence that appellees would be prejudiced by the dismissal.

It is settled that in some circumstances the condemning authority has the right to dismiss the condemnation proceedings even after a jury has returned the verdict, but before the court has entered its judgment. Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842 (1943); Day v. Wooten, 545 S.W.2d 16 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.); City of Wichita Falls v. Gleghorn, 531 S.W.2d 879 (Tex.Civ.App.—Eastland 1975), writ ref'd n. r. e., per curiam, 545 S.W.2d 446 (Tex.1976); City of Rockwall v. Mitchell, 497 S.W.2d 378 (Tex.Civ.App.—Waco 1973, writ ref’d n. r. e.); Huntsville Ind. School Dist. v. Scott, 483 S.W.2d 344 (Tex.Civ.App.—Houston [14th Dist.]) writ ref’d n. r. e., per curiam, 487 S.W.2d 692 (Tex.1972); Art. 3265, Tex.Rev.Civ.Stat.Ann. (Supp.1977). In the City of Rockwall v. Mitchell, supra, the Court announced the rule as follows:

The Rule is (and was prior to the enactment of Section 6, Article 3265 in 1969) that a condemnor may elect to dismiss its condemnation proceedings at any time prior to judgment in the suit, provided there has been no taking of possession of the involved property under an order in a condemnation proceeding or under an agreement with the condemnee pending the proceedings. City of Houston v. Biggers, Tex.Civ.App., NRE, 380 S.W.2d 700; Leonard v. Small, Tex.Civ.App., Er.Ref., 28 S.W.2d 826; Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842; Huntsville Ind. Sch. Dist. v. Scott, Tex.Civ.App., NRE, 483 S.W.2d 344; City of Austin v. Capitol Livestock Auction Co., Tex., 453 S.W.2d 461; Rayburn, Texas Law of Condemnation p. 468.
Section 6, Article 3265 does not alter such rule. It merely provides a way for a landowner to be reimbursed for attorney’s fees and other expenses where a condemnor institutes but later abandons suit.

The pertinent testimony here involved shows: After the entry of the award appellant deposited the money awarded in the registry of the court and obtained from the court an order for a writ of possession pursuant to which it took possession of the property on December 17, 1975. Appellant took complete control and management of the property and has continued to manage and control the property since such time. In most instances the rentals paid by the tenants were reduced. The Urban Renewal Agency gave the tenants advice and consultation on relocation to other places and advised them of the benefits available to them in case they moved. Some of the tenants moved. In some instances, fixtures and fixed improvements were removed, damaging and changing the property. The Urban Renewal Agency has been in possession of the property for more than fifteen months and during such period has had complete control and dominion over the property, and appellees are completely out of possession.

To restore appellees to the position they occupied before the condemnation proceedings, the buildings and premises would have to be restored to them in the same condition they were before the taking. Moreover, since rentals have been reduced and some tenants have moved out, appellant would also have to restore appellees to the same relative rental position — number of tenants, income, etc. Due to the very nature of the Urban Renewal Agency, this is not possible.

Ordinarily, the condemning authority may refuse to take the property sought to be condemned and decline to pay the award finally fixed by either special commissioners or a judicial tribunal. Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524. However, when the condemning authority gains possession of land under and by virtue of condemnation proceedings and cannot thereafter restore possession to the landowner and thus reestablish the status quo, such authority cannot dismiss the condemnation proceedings under which possession was obtained and seek to relitigate the matter of damages. Such action would result in obvious prejudice to the landowner and if permitted would allow the condemning authority to try the damage issue again and again until it received a favorable to acceptable award. Lower Nueces River Water Supply District v. Cartwright, 160 Tex. 239, 328 S.W.2d 752 (1959).

We have concluded that the Urban Renewal Agency cannot now dismiss the condemnation proceedings. It took possession of appellees’ property by virtue of a writ of possession requested by it and issued in such condemnation proceedings, and has continued in possession and control over an extended period of time. It is clear from the record that appellees cannot be returned to the same position they were in prior to the condemnation. Appellant’s points of error No. 1 and 2 are overruled.

Appellant’s last three points of error pertain to the amount of the award. By such points of error it asserts (1) there is no evidence to support the jury’s answers to Special Issues No. 1 and 2; (2) the jury’s answers to Special Issues No. 1 and 2 are against the great weight and preponderance of the evidence; (3) the jury’s answer to Special Issues No. 1 and 2 are manifestly excessive and the trial court erred in failing to grant a remittitur.

Appellant initially contends that the qualifications of appellees’ value witnesses are at best minimal and that by contrast appellees’ witnesses are among the most experienced and best informed appraisers in the State of Texas. It further asserts that appellees’ appraisals are not based on proper or accepted methods of appraisals and that such appraisals are in the nature of mere conclusions and unsupported opinions and will not support the jury’s answers.

The general rule is that a witness need not be an expert in a technical sense in order for his opinion as to values to be received. However, he must possess knowledge of the value standards of the class of property to which the subject property belongs. In this connection (a) he must have a knowledge of market value; (b) in the vicinity of the subject property; (c) based in part at least on personal observation and not solely on hearsay. Tarrant County Water Control & Improvement Dist. v. Hubbard, 426 S.W.2d 330 (Tex.Civ.App.—Tyler), reversed and remanded on other grounds, 433 S.W.2d 681 (Tex.1968); State v. Sides, 348 S.W.2d 446 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.); 2 McCormick & Ray, Texas Law of Evidence at 257, 261 (1956).

It is settled that the question as to whether a witness has the qualifications to testify about market value of property is largely within the sound discretion of the trial court. Premier Petroleum Co. v. Box, 255 S.W.2d 298 (Tex.Civ.App.—Eastland 1953), writ ref’d n. r. e., per curiam, 152 Tex. 321, 257 S.W.2d 105 (1953); City of Teague v. Stiles, 263 S.W.2d 623 (Tex.Civ. App.—Waco 1953, writ ref’d n. r. e.); Rayburn, Texas Law of Condemnation § 215, at 568 (1960).

The witness’ own statement that he knows the land in question and is acquainted with the market value is usually held sufficient to authorize the reception of his testimony as to value. Tarrant County Water Control & Improvement Dist. v. Hubbard, supra; State v. Newton, 391 S.W.2d 758 (Tex.Civ.App.—Waco 1965, no writ); State v. Sides, supra.

The value testimony may be summarized as follows:

Nelson Cory, a witness for appellant, is a real estate broker and real estate appraiser who has been in business for 25 years and is a member of the Society of Real Estate Appraisers and the American Institute of Real Estate Appraisers. He testified that he was personally acquainted with the property involved, and in connection with his testimony, pictures of the subject property were introduced into evidence. He testified that the property in both parcels was in poor condition.

His testimony reflects three methods of appraising property, and is as follows: Parcel No. 462. (1) cost depreciation approach —$104,500.00; (2) market approach — $99,-500.00; (3) income approach — $76,300.00. Parcel No. 471. (1) cost depreciation approach — $39,247.00; (2) market approach— $34,500.00; (3) income approach — $31,-525.00.

In conclusion he testified that the market approach was the best method, and that the fair market value of Parcel No. 462 is $99,-500.00 and that the fair market value of Parcel No. 471 is $34,500.00.

Mr. Charles Noble, a witness for appellant, is a real estate appraiser who has been in business about 22 years. He is a member of the American Institute of Real Estate Appraisers, the Society of Real Estate Appraisers, and the American Society of Real Estate Appraisers. He is familiar with the property involved and testified that it is in fair to poor condition.

His appraisals are as follows: Parcel No. 462. (1) cost depreciation approach — $103,-475.00; (2) market approach — $102,500.00; (3) income approach — $101,000.00. Parcel No. 471. (1) cost depreciation approach— $39,275.00; (2) market approach — $37,-500.00; (3) income approach — $37,275.00.

In conclusion he stated that he preferred the market approach, and that the fair market value of Parcel No. 462 is $102,500.00, and of Parcel No. 471, $37,500.00.

Lauro L. Lopez, a witness for appellees, is a licensed real estate broker who has been in business since 1946. He has served on the Planning and Zoning Board and the Board of Equalization of the City of San Antonio and is a member of Centro 21. He stated that the Abdo property is in a good location for business; that he is familiar with the property; and that the property was above average structurally but that the interior needs some repairs and remodeling. Mr. Lopez testified that he considered three approaches in his value estimates but that he gave more weight to the replacement value and the market value than to the income value.

His appraisals were as follows: Parcel No. 462. (1) cost depreciation approach— $289,742.00; (2) market approach — $264,-500.00. He stated that in his opinion the fair market value of Parcel No. 462 was $268,830.00. Parcel No. 471. (1) cost depreciation approach — $124,509.00; (2) market approach — $111,000.00; (3) income approach —$95,150.00. His opinion of the fair market value of Parcel No. 471 is $110,500.00.

J. J. Falbo, a witness for appellees, is a general contractor who has been in business for 46 years. His testimony concerns only replacement costs and not the value of the buildings. He testified that the estimated cost of replacing the structures on Parcel No. 462 is $710,416.00 and for the structures on Parcel No. 471, $212,760.00.

There is also testimony as to the sale of various business properties in San Antonio which cover a wide range of properties and sales of such property, ranging from a high of $300,000.00 each for the Texas Theatre building and the South Texas building to a low of $85,000.00 each for the Paseo Del Rio Hotel building and the GPM Life building.

Mr. Moore, the manager of the Relocation Department of the Urban Renewal Agency, testified that his job is to administer the provisions of Federal law concerning relocation under the Uniform Relocation Act; that the subject properties were put under administration of the Relocation Department on December 17, 1975; that his tenants were informed of their rights under the Relocation Act. He testified as to the number of tenants in the subject property and the amount of rent paid by such tenants both at the time of the taking of such property and at the present time. Such testimony shows a reduction in rent of practically all of the rented property. He testified that one hotel is out of business and that a couple of tenants have moved.

A policeman testified that he walked a beat in the subject area for approximately five years and that it is in an area of heavy prostitution and several murders have occurred in the vicinity; that when buildings in the area are vacated they are vandalized and illegal aliens live in them.

A letter from appellees to the Urban Renewal Agency was read which stated in effect that appellees had received a letter from the City of San Antonio which notified them that certain major repairs must be made in order to bring the structures to meet existing criteria of the building codes; and that upon receiving estimates for the work necessary to comply with the present codes that they found the costs would be prohibitive, considering the types of businesses they can lease to and the amount of rent they can charge.

Winston Martin, Executive Director of the San Antonio Development Agency, testified that the Abdo properties are the last two to be taken by the Urban Renewal Agency in this project; that the property is to be rehabilitated for retail use on the ground floor and efficiency apartments on the upper floor; that the Urban Renewal Agency is trying to keep people living in the area; that the purpose of the Urban Renewal Agency action is to upgrade conditions in the neighborhood that are substandard.

We overrule appellant’s point of error that there is no evidence to support the jury’s answers to Special Issues No. 1 and 2. A more serious question is whether such answers are: (a) against the great weight and preponderance of the evidence or; (b) manifestly excessive. It is seen that there is a wide range of value testimony as to both parcels and a wide variance on the values placed on the property by the Special Commissioners and by the jury.

Rule 328, Tex.R.Civ.P. (1978), provides that new trials may be granted when the damages are manifestly too small or too large. It is settled that the trial court and the appellate courts have a duty to weigh and consider the evidence in a condemnation case, and the appellate courts will either order a remittitur or will reverse and remand condemnation cases where the damages awarded are inadequate or excessive. The method most often used to cure the excessiveness is to require that a remittitur be filed upon condition of allowing the judgment to stand. Rayburn, Texas Law of Condemnation § 226, at 581 (1960).

Rule 440, Tex.R.Civ.P. (1978), provides that in civil cases appealed to a court of civil appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party or his attorney within what time he might file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith. If not filed as indicated, then the judgment shall be reversed.

There are numerous cases holding that if the court of civil appeals is of the opinion that the verdict and judgment of the trial court is excessive, it may suggest a remitti-tur of excessiveness, and if the remittitur is not filed, then the court can reverse the trial court’s judgment. Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826 (1958); Carter v. Texarkana Bus Co., 156 Tex. 285, 295 S.W.2d 653 (1956); Missouri-Kansas-Texas Railroad Co. v. Pierce, 519 S.W.2d 157 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.); Southern Steel Co. v. Manning, 513 S.W.2d 273 (Tex.Civ.App.—Waco 1974, no writ); Melton v. State, 395 S.W.2d 426 (Tex.Civ.App.—Tyler 1965, writ ref’d n. r. e.); City of Dallas v. McLemee, 378 S.W.2d 393 (Tex.Civ.App.—Dallas 1964, no writ); County of Bexar v. Cooper, 351 S.W.2d 956 (Tex.Civ.App.—San Antonio 1961).

It is seen that there is a wide range of value testimony by the expert witnesses as to the value of the subject property. The fair market value placed on the property by appellant’s two expert witnesses is less than one-half the value found by the jury; and that of appellees’ expert witnesses, a slight amount more than the value found by the jury. It appears from other testimony that the property is in a somewhat run down condition and is in need of considerable repairs. It also appears that the rents received for the rental property is low and it is considered in a low rent area. One of appellant’s expert witnesses testified that the property was in poor condition; the other testified that it was in poor to fair condition. Appellees’ expert witnesses testified that the exterior of the property was in good condition, but that the interior was in need of repairs. Appellees themselves wrote the Urban Renewal Agency that the City of San Antonio had notified them that major repairs must be made to meet existing standards of the building code; that appellees had obtained estimates as to the cost of the repairs necessary to comply with the present building codes; that based on such estimates they found the cost prohibitive, considering the types of businesses ap-pellees could lease to and the amount of rent they could charge.

After a careful consideration of the entire record, we have concluded that the jury’s verdict as to Special Issues No. 1 and 2 are manifestly excessive. We have come to the conclusion that the verdict and judgment as to Parcel No. 462 is excessive by the sum of $50,000.00 and that the verdict and judgment as to Parcel No. 471 is excessive by a sum of $20,000.00.

The judgment of the trial court will therefore be affirmed if appellees will file within 30 days hereof a remittitur in writing of the $50,000.00 as to Parcel No. 462 and $20,000.00 as to Parcel No. 471; otherwise said judgment will be reversed and remanded for a new trial.

Affirmed on condition of remittitur.

SUPPLEMENTAL OPINION

Appellees having filed in writing the re-mittitur as suggested in our original opinion, it is ordered that the judgment, as reduced by the remittitur, be in all things affirmed.

      . Appellees have filed a post-submission brief which in effect states that after this case was heard and subsequent to oral argument in this Court, a fire occurred on one of the premises located at 806-812 West Commerce, completely gutting the structure and rendering the same uninhabitable. We have given no consideration to this brief in connection with the decision reached herein.


author: EVANS, Justice.

text:
    BUZZINI DRILLING COMPANY, Appellant, v. Morris FUSELIER, Jr., Appellee.
    No. 17075.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 2, 1978.
    Fulbright & Jaworski, Frank G. Jones, Houston, for appellant.
    Jamail & Gano, Richard W. Mithoff, Jr., Houston, for appellee.
   EVANS, Justice.

This is an appeal from an order granting the motion of appellee to strike the plea of privilege filed by appellant, Buzzini Drilling Company.

The appellee instituted this personal injury action against Dow Chemical Company and Buzzini Drilling Company. Buzzini filed a plea of privilege and, subject thereto, an answer to the appellee’s petition. Appellee filed a controverting affidavit, but before action was taken on Buzzini’s plea of privilege, Texas Employers’ Insurance Association filed a petition in intervention. Buzzini then answered the petition in intervention, but it did not recite in the pleading that the answer was filed subject to its pending plea of privilege. The appellee thereafter filed a motion to strike Buzzini’s plea of privilege, which the trial court granted, and Buzzini appeals.

The basic question before this court is whether Buzzini waived its plea of privilege by failure to allege in its answer to the petition in intervention that its response was filed subject to its pending plea of privilege.

A plea of privilege will be considered waived when the defendant takes some action prior to the venue hearing which is inconsistent with its position on the venue issue. An inconsistent action which results in a waiver is one which invokes the general jurisdiction of the court without reservation of the rights asserted in the plea of privilege. Hickman v. Swain, 106 Tex. 431, 167 S.W. 209, 210 (1914); H. Molsen and Co. v. Williamson, 510 S.W.2d 366 (Tex.Civ.App.—Dallas 1974, no writ).

It is the appellee’s position that when Buzzini filed his answer in response to the petition in intervention, it submitted itself to the jurisdiction of the court for all purposes. In support of this position, appellee cites Hurst v. Stewart, 526 S.W.2d 668 (Tex.Civ.App.—San Antonio 1975, writ dism’d); City of Orange v. State ex rel. City of Port Arthur, 450 S.W.2d 722 (Tex.Civ.App.—Beaumont 1970, no writ); Sun Oil Co. v. High Plains Underground Water Conservation Dist., 426 S.W.2d 347 (Tex.Civ.App.— Amarillo 1968, no writ).

All of the cases relied upon by the appellee stand for the proposition that a plaintiff who institutes an action in a particular county submits himself to the jurisdiction of the court with respect to all matters arising out of or incidental to the subject matter of the suit. Thus, a plaintiff who files suit in a particular county waives his right to be sued in the county of his residence with respect to an intervention arising out of the action he has initiated. Sun Oil Co. v. High Plains Underground Water Conservation Dist., supra.

The situation in the present ease is different from the factual circumstances in the cases relied upon by the appellee. Buz-zini’s action in filing an answer in response to the plea in intervention is not inconsistent with the venue position which it had previously taken by filing its plea of privilege. The intervention did not inject an independent cause of action into the case, and the intervenor expressly alleges that it is entitled to recovery if the plaintiff is entitled to recovery against the defendants. An intervenor takes the suit as he finds it. Corzelius v. Cosby Producing and Royalty Co., 52 S.W.2d 270 (Tex.Civ.App.—Fort Worth 1932, no writ). As between the in-tervenor and the original parties to the action, venue of the intervention is dependent upon the venue of the original cause of action. May v. Little, 473 S.W.2d 632 (Tex.Civ.App.—El Paso 1971, writ ref’d n. r. e.).

At the time the petition in intervention was filed in the present suit, Buzzini’s plea of privilege had been filed prior to any other plea and it was entitled to a hearing on the venue issue. By filing its answer in response to the plea in intervention, it did not invoke affirmative action of the trial court and its action was not inconsistent with an intention to insist on a hearing of its plea of privilege. Talbert v. Miles, 477 S.W.2d 710 (Tex.Civ.App.—Waco 1972, no writ); Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d); H. Molsen and Co. v. Williamson, supra.

The judgment of the trial court is reversed and the cause is remanded for a hearing on the venue issue.


text:
    HOUSTON FURNITURE DISTRIBUTORS, INC., et al., Appellants, v. BANK OF WOODLAKE, N. A., Appellee.
    No. 17018.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 2, 1978.

      Gerald A. Linder, Houston, for appellants.
    Fulbright & Jaworski, Joe W. Redden, Jr., Houston, for appellee.
   EVANS, Justice.

This is an appeal from a summary judgment entered in favor of the plaintiff, Bank of Woodlake, N.A., against the defendant, Houston Furniture Distributors, Inc., the maker of a promissory note dated February 19, 1976, in the principal amount of $46,-221.74, and against defendants, Edward A. Gibbons and William A. Jakle, who were guarantors of the indebtedness under a preexisting guaranty agreement dated March 8,1974. The trial court entered a summary judgment in favor of the plaintiff against all three defendants for the unpaid principal amount of the note, interest and attorney’s fees. The defendants, Houston Furniture Distributors, Inc., and Edward A. Gibbons have perfected this appeal.

The defendants’ first point of error is that the plaintiff failed to show that it was entitled to judgment as a matter of law. Under this point, the defendants do not argue that the plaintiff’s evidence was insufficient to support the summary judgment, but rather that the defendants met their burden of pleading and offering summary judgment proof in support of their affirmative defenses. This point will be considered with the second and third points of error wherein defendants contend that genuine issues of material fact were raised with respect to their affirmative defenses of usury and estoppel.

It is conceded by the defendants that the rate of interest charged was not illegal for a corporate borrower, and defendant Gibbons recognizes that the defense of usury is not available to the guarantor of a corporate debt. Universal Metals and Machinery, Inc., v. Bohart, 539 S.W.2d 874, 879 (Tex.1976); Loomis Land and Cattle Co. v. Diversified Mortgage Investors, 533 S.W.2d 420 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). However, Gibbons contends that he was the “true” borrower of the funds and therefore should be allowed to assert the defense of usury. He argues that the use of the corporate form was merely a subterfuge to evade the usury statute, a scheme whereby the plaintiff could loan funds to him in his individual capacity at a higher rate of interest than the law permits. Relying upon the rationale of Micrea, Inc. v. Eureka Life Ins. Co. of America, 534 S.W.2d 348 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.), Gibbons argues that the loan transaction was usurious because both parties understood that the use of a corporate borrower was merely a fiction and that the loan was, in fact, being made for the benefit of the individual.

In his affidavit filed in response to the plaintiff’s motion for summary judgment, Gibbons states that on September 12, 1973, some seven months prior to the date of the loan transaction, the plaintiff, acting through its president, Charles J. Brosko, issued a $50,000.00 revolving line of credit to Houston Furniture Distributors, Inc., with the provision that the rate of interest on unpaid principal would be 2% above the bank’s prime rate. Gibbons states that after the issuance of this line of credit he was invited, as an individual, to invest in a partnership venture and that he was given a confidential memorandum listing Brosko and a realtor named Jim Phillips as business references. It appears that Jim Phillips was the brother of Michael B. Phillips, a vice president and loan officer of the plaintiff. On March 8,1974, the date of the loan in question, Gibbons and Jakle went to see Michael B. Phillips to discuss the proposition of their making individual investments in the partnership venture. Michael B. Phillips acknowledged that he was the brother of Jim Phillips and he recommended the general partners. According to Gibbons, Phillips stated that he was familiar with the property owned by the partnership, that the land would sell quickly, and that the limited partnership would make a nice profit. Gibbons states that he advised Phillips that he could not repay the amount of the loan until the partnership sold the land and the funds were dispersed, and that Phillips assured him that the bank would carry the loan until the partnership land was sold. Phillips then suggested “a subterfuge” whereby the bank would loan Gibbons and Jakle the sum of $13,300.00, that the loan would be made to Houston Furniture Distributors, Inc., using its revolving line of credit, and that Jakle and Gibbons could then withdraw the needed amount from the corporate bank account to make their individual investments in the partnership venture. Gibbons states that he was again assured by Phillips that there would be no need to repay the principal amount of the loan until the partnership sold its land and that the principal could be repaid from the sale’s proceeds. Gibbons’ affidavit indicates that the loan for the stated amount was made to the corporation and on the day the loan proceeds were deposited in the corporation’s bank account, two checks, each in the amount of $6,650.00, were drawn on the corporation’s bank account and made payable, respectively, to Gibbons and Jakle. The proceeds of these checks were then invested in the partnership venture. The $13,300.00 note was thereafter renewed from time to time and the note in suit represents the sum of the unpaid balance of the original debt and other sums of money subsequently borrowed by Houston Furniture Distributors, Inc., from the plaintiff.

Gibbons’ affidavit shows that he was fully aware of and assented to the plaintiff’s loan condition that the note be executed by the corporate borrower, Houston Furniture Distributors, Inc., and the evidence is undisputed that the corporation had been created prior to the loan transaction in question and was not organized for the sole purpose of making the loan. The rationale of Gibbons’ argument is that the allegations of his affidavit demonstrate that the corporate entity was used as a “cloak or cover” to hide the fact that Gibbons, individually, was to receive the benefits of the loan transaction.

It has been held that a lender may lawfully require, as a condition to making a loan, that the loan be made to a corporation rather than to an individual borrower, and such a condition does not, in itself, make the transaction usurious, even though the purpose of the requirement is to permit the lender to charge a higher rate of interest. American Century Mortgage Investors v. Regional Center, Ltd., 529 S.W.2d 578, 582 (Tex.Civ.App.— Dallas 1975, writ ref’d n. r. e.). It has also been held that the requirement of a lender that the individual applicant guarantee payment of a corporate loan does not render the loan transaction usurious. Loomis Land and Cattle Co. v. Diversified Mortgage Investors, supra.

The burden was on the defendants to offer competent summary judgment proof of some agreement, device or subterfuge to charge interest at a usurious rate. Shipman v. Wright, 3 S.W.2d 519, 500021 (Tex. Civ.App.—Dallas 1928, writ ref’d). It did not meet this burden by merely showing that the plaintiff suggested the use of an existing corporate form to effect the loan. Hutchison v. Commercial Trading Co., 427 F.Supp. 662 (N.D.Tex.1977). The summary judgment proof does not raise a material fact issue in support of the defendants’ contention that the loan transaction was merely a subterfuge to evade the usury statute. Skeen v. Glenn Justice Mortgage Co., 526 S.W.2d 252 (Tex.Civ.App.—Dallas 1975, no writ); Hutchinson v. Commercial Trading Co., supra; American Century Mortgage Investors v. Regional Center, Ltd., supra. The defendants’ second point of error is denied.

The third point of error must also be overruled because the summary judgment proof fails to raise a material issue of fact with respect to the affirmative defense of estoppel. Although Gibbons’ affidavit alleges that the plaintiff’s officer, Michael B. Phillips, falsely represented to him that the debt would not be called until the partnership land was sold, there is no allegation that the land was not sold as represented nor that such representation was known to be false at the time it was made. The burden of proof was upon Gibbons to offer competent summary judgment proof which raised a material issue of facts as to each of the essential elements of his affirmative defense. Barfield v. Howard M. Smith Co., 426 S.W.2d 834, 838 (Tex.1968). In order to meet this burden, Gibbons was required to offer summary judgment proof that a false representation had been made by the plaintiff with actual or constructive knowledge of the true facts. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Cattle Feeders, Inc. v. Jordan, 549 S.W.2d 29 (Tex.Civ.App.—Corpus Christi 1977, no writ). Since the summary judgment proof fails to raise a fact issue with respect to all of the necessary elements of Gibbons’ affirmative defense of estoppel, the trial court properly granted the plaintiff’s motion for summary judgment. Seale v. Nichols, 505 S.W.2d 251, 254 (Tex.1974).

The defendants’ fifth point of error will next be considered. Under this point, the defendants contend that the summary judgment was improper because the plaintiff failed to prove that the guaranty agreement had not been terminated. The defendants argue that the plaintiff had the burden of offering affirmative proof of non-termination, relying upon certain statements contained in Sampson v. APCO Oil Corp., 476 S.W.2d 430 (Tex.Civ.App.—Amarillo 1972, no writ). The terms of the guaranty agreement executed by Gibbons shows the continuing nature of the promise, clearly evidencing the understanding of the parties that payment would be guaranteed of all indebtedness “then or thereafter” owing by the principal debtor to the bank. A continuing guaranty is one which contemplates a series of future transactions and is such that the guaranty remains in effect for a.n indefinite time or until revoked. Blount v. Westinghouse Credit Corp., 432 S.W.2d 549 (Tex.Civ.App.—Dallas 1968, no writ). In the absence of evidence that the continuing guaranty had been revoked or for some other cause had become ineffective, it must be considered as remaining in effect according to its terms. 38 Am.Jur.2d Guaranty §§ 61, 63 (1968).

In their fourth point of error, the defendants contend that the trial court erred in awarding attorney’s fees in the amount of the stipulated percentage of the principal and interest owing on the note at the time it was placed for collection.

The terms of the note provide for payment of attorney’s fees in the amount of 10% of the unpaid principal and interest if the note is placed in the hands of an attorney for collection. Based upon this stipulation, the trial court awarded attorney’s fees to the plaintiff in the amount of $4,736.25.

In a summary proceeding, where the note provides for a fixed percentage of the unpaid sum, proof of the reasonableness of the stipulated percentage is not required in the absence of pleading and proof that the amount is unreasonable. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960); International Shelters, Inc. v. Corpus Christi State National Bank, 475 S.W.2d 334 (Tex.Civ.App.—Corpus Christi 1971, no writ). The defendants offered no summary judgment evidence indicating that the stipulated percentage was unreasonable, and the trial court’s judgment was therefore proper to the extent that attorney’s fees in such amount were adjudged against the principal obligor, Houston Furniture Distributors, Inc.

However, as to the guarantor Gibbons, the trial court’s judgment for attorney’s fees must be reversed. A guarantor’s liability on a debt is measured by the principal’s liability unless a more extensive or a more limited liability is expressly set forth in the guaranty agreement. Gubitosi v. Buddy Schoellkopf Products, Inc., 545 S.W.2d 528, 534 (Tex.Civ.App.—Tyler 1976, no writ); Walter E. Heller and Company v. Allen, 412 S.W.2d 712, 721 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). The guaranty agreement executed by Gibbons guaranteed payment of the principal debt, interest and costs of collection, “including reasonable attorney’s fees”. Thus, by the terms of the guaranty agreement itself, Gibbons’ obligation was limited to a “reasonable” attorney’s fee. It was the plaintiff’s burden to plead and prove that the amount claimed was, in fact, a reasonable attorney’s fee, and this was a question of fact which could not be determined in the summary judgment proceeding. Yandell v. Tarrant State Bank, 538 S.W.2d 684 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.).

The trial court’s judgment awarding attorney’s fees in favor of the plaintiff, Bank of Woodlake, N.A., against the defendant, Edward A. Gibbons, in the amount of $4,736.25 is reversed and the plaintiff’s claim for attorney’s fees against said defendant is severed and remanded to the trial court for further proceedings. In all other respects, the trial court’s summary judgment in favor of the plaintiff against all defendants is affirmed.


text:
    Doris Mae GUMPP, Individually and as Independent Executrix of the Estate of C. L. Gumpp, Deceased, Appellant, v. PHILADELPHIA LIFE INSURANCE COMPANY (Successor to Tennessee Life Insurance Company), Appellee.
    No. 15888.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 8, 1978.

      Herman Glosserman, San Antonio, for appellant.
    Lonnie W. Duke, San Antonio, for ap-pellee.
   KLINGEMAN, Justice.

This is a suit on a credit life insurance policy. Doris Mae Gumpp, individually and as independent executrix of the estate of C. R. Gumpp, deceased, sued Philadelphia Life Insurance Company to recover on a credit life insurance policy taken out by the deceased in connection with a loan made by the San Antonio Teachers Credit Union and secured by security agreement and certificate of title lien to San Antonio Teachers Credit Union on a Ford automobile purchased by C. R. Gumpp. The title to the automobile was in the name of C. R. Gumpp, and the certificate of title showed a lien in favor of the credit union. Doris Mae Gumpp will sometimes be herein referred to as “Doris,” C. R. Gumpp as “C. R.,” San Antonio Teachers Credit Union as “Credit Union,” and Philadelphia Life Insurance Company as “Philadelphia Life.”

After the death of C. R., Doris made a demand on Philadelphia Life for payment of such policy, and Philadelphia Life refused to pay. Suit was then instituted by Doris for recovery of the amount owing on the automobile at C.R.’s death, attorney’s fees, and a statutory penalty of 12 per cent. Riverside Insurance Agency, the insurance agent who issued the policy, was made a party-defendant. However, Riverside was never served with citation and filed no answer. Judgment was entered for Doris in the sum of $4,985.22, interest, and attorney’s fees, but recovery was denied for the statutory 12 per cent penalty. The trial court made extensive findings of fact and conclusions of law.

Philadelphia Life appeals from that portion of the judgment awarding recovery under the policy and the award of attorney’s fees. Doris appeals from that portion of the judgment denying recovery of statutory penalties provided for under Article 3.62, Tex.Ins.Code Ann. (1963).

Philadelphia Life, by one point of error, asserts that the trial court erred in awarding judgment in the sum of $4,985.22, interest, and attorney’s fees. Doris, by one point of error, asserts that the trial court erred in denying recovery of the statutory penalty provided under Article 3.62 of the Texas Insurance Code.

Although neither party raises any questions as to the finality of the judgment, the judgment here does not mention or specifically dispose of Riverside Insurance Agency, who was named as a party-defendant. See North East Ind. School Dist. v. Aldridge, 400 S.W.2d 893 (Tex.1966). As hereinbefore noted, Riverside was never cited and filed no answer herein and made no appearance herein. We are confronted with the question of whether this is an appealable judgment. The general rule is that a judgment is final and therefore ap-pealable only when it disposes of all of the parties. However, there are a substantial number of cases holding that such rule has no application where the judgment disposed of all named parties except those who had not been served and filed no answer. In these cases the judgment was final for the purpose of appeal and the case stood as if there had been a discontinuance as to the parties not served. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962); Liberty Mutual Ins. Co. v. City of Fort Worth, 517 S.W.2d 646 (Tex.Civ.App.—Fort Worth 1975, no writ); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.) American Trendex Corp. v. Ultradyne Corp., 490 S.W.2d 205 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.); Mabry v. Lee, 319 S.W.2d 125 (Tex.Civ.App.—Beaumont 1958, writ ref’d); 4 McDonald, Texas Civil Practice, Judgments § 17.10.3-C., at 76 (1971).

We consider the judgment as an appeala-ble judgment and properly before this Court.

The pertinent findings of fact may be summarized as follows: (a) C. R. is dead; (b) Doris is the surviving wife, the sole legatee and devisee of C. R., and also the independent executrix of his estate; (c) C. R. contracted to buy a car for $7,773.22; (d) $5,648.00 was borrowed from the Credit Union of which Doris was a member, but C. R. was not; (e) the promissory note was signed by both C. R. and Doris, Doris as the maker and C. R. as the co-maker; (f) at such time, said Credit Union was not authorized to make loans to non-members, but the Credit Union did require that the spouse of a member making a loan sign as co-maker; (g) title to the car was placed in C. R., who signed the credit security agreement as debtor; (h) the amount owing on the promissory note on the date of C. R.’s death was $4,985.22; (i) C. R. applied for credit life insurance at Riverside Insurance Agency, an independent agent, and the policy was subsequently issued; (j) Doris, after having qualified as independent executrix of the estate of C. R., demanded payment under the policy; (k) Philadelphia Life, after investigating, found out for the first time that the loan was made through a credit union in which Doris was a member and C. R. a non-member; (7) Philadelphia Life then denied coverage on the basis that C. R. was not a debtor as defined in the policy and in the Texas Insurance Code; (m) Philadelphia Life also attempted to refund the premium payments, which were not accepted; (n) Doris complied with all provisions of the policy as to the notice, demand, all conditions precedent, and timely brought this suit; (o) plaintiff is entitled to attorney’s fees; (p) no penalties should be assessed against Philadelphia Life because their refusal to pay was not willful; (q) certain exhibits were introduced into evidence, including an application for credit life, the credit life agreement, insurance policy, certificate of insurance, promissory note, application for loan, car title, security agreement, and various letters.

In its conclusions of law the court found that (1) C. R. was a debtor within the meaning of the policy and under the provisions of the Texas Insurance Code and Credit Union Act; (2) plaintiff is entitled to a judgment against defendant in the sum of $4,985.22, interest, and attorney’s fees; (3) Doris is not entitled to recover additional statutory damages of 12 per cent.

Tex.Ins.Code Ann. art. 3.53, Credit Life Insurance and Credit Health and Accident Insurance § 2.B. (1963), defines a debtor as follows:

(4) ‘Debtor’ means a borrower of money or a purchaser of goods, services, property, rights or privileges for which payment is arranged through a credit transaction; . .

The application for group credit life insurance defines those who are eligible as follows:

II. ELIGIBILITY: Certain classes of debtors of the creditor under the age of sixty-six (66) years at the time of becoming indebted to the Creditor, who are liable, directly or indirectly, to pay or repay sums of money to the Creditor in one sum or in installments over a period not to exceed sixty months and who agrees to pay the required premium contribution to the creditor, shall be eligible for insurance hereunder, provided that no insurance is granted hereunder with respect to any corporation or association.

The insurance policy has the following definition of eligibility:

This group insurance coverage is limited to those persons of the class defined in the application for the group policy who are under the age of sixty-six (66) years at the effective date of their certificate and who agree to pay the required premium contribution or identifiable insurance charge to the Creditor.

Philadelphia Life relies heavily on Harrell v. Continental Assurance Co. of Chicago, Ill., 381 S.W.2d 223 (Tex.Civ.App.—Austin 1964, no writ). This case is clearly distinguishable from the case before us. In Harrell, the deceased, who was not a member of the credit union, signed the note along with his wife, who was a member of such union. The note specifically designated Mrs. Harrell as maker and Mr. Harrell as co-maker. The policy involved contained this provision:

Insurance is to be granted only on the life of the individual debtor whose signature appears first on the Contract of indebtedness. No insurance is to be effective hereunder on the lives of co-makers, cosigners, endorsers or guarantors.

In Harrell, Mrs. Harrell signed the note first, she signed as maker and Mr. Harrell signed as co-maker and the note so designated them. The application for loan was signed by Mrs. Harrell. The court denied recovery in a suit by Mrs. Harrell after the death of Mr. Harrell, holding that under all the facts and circumstances, Mrs. Harrell, and not Mr. Harrell, was the insured.

Unlike Harrell, there is no provision in the insurance policy involved in the case before us to the effect that insurance is granted only on the life of the individual debtor whose signature appears first in the contract of indebtedness, and that no insurance is to be effective thereunder on the life of co-maker, co-signers, or guarantors.

In the case before us, C. R. was designated as “debtor” in the security agreement, the security involved (automobile) was in his name, he is named in the certificate of insurance as “insured debtor,” he was clearly indebted to the creditor by the promissory note, he falls within the eligibility definitions contained in the application for credit life insurance and in the insurance policy, and he is clearly a debtor under the provisions of Art. 3.53.

C. R. was properly a covered insured under the policy. The trial court correctly granted judgment to Doris for the amount owing to the creditor at the time of C. R.’s death, and attorney’s fees were properly allowed under the Texas Insurance Code. No complaint is here made to reasonableness of such attorney’s fees.

We last consider Doris’ point of error that the trial court erred in refusing to award her 12 per cent statutory damages on the amount of the recoverable loss.

Article 3.62, Tex.Ins.Code Ann., provides in part as follows:

In all eases where a loss occurs and the life insurance company . . . liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.

The penalty provided by Art. 3.62 is recoverable for failure to pay a loss for which the insurer is liable. The cause of action is created by the statute and does not grow out of the contract. The attorney’s fees are costs given as reimbursement for expenses incurred in enforcing the contract. International Security Life Ins. Co. v. Maas, 458 S.W.2d 484 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n. r. e.); Continental Casualty Co. v. Boerger, 389 S.W.2d 566 (Tex.Civ.App.—Waco 1965, writ dism’d).

The applicable law is set forth in Duffer v. American Home Assurance Co., 512 F.2d 793 (5th Cir. 1975), as follows:

The Texas statute succinctly makes the insurer’s failure to pay, within thirty days after demand, the keystone of liability for twelve per cent damages and attorneys’ fees. It is notably silent about any other criteria, such as insurer’s action in good faith or reasonable grounds for failure to pay. This court, citing Texas cases, said, in Lumbermen’s Mutual Casualty Company v. Klotz (5 Cir. 1958), 251 F.2d 499, 509, that the Texas statute, unlike some others, ‘. . . (i)s not a “just cause” or “reasonable cause” penalty statute. Where the 30-day demand has been made, the penalty is due if the Insurer is ultimately held liable on the policy no matter how justifiable was the basis for its unsuccessful defense of non-liability.’

See also Key Life Ins. Co. of South Carolina v. Davis, 509 S.W.2d 403 (Tex.Civ.App.—Beaumont 1974, no writ).

The trial court erroneously denied Doris’ recovery of the 12 per cent penalty provided for by Art. 3.62, Tex.Ins.Code Ann.

The judgment is reformed so as to provide for an additional recovery of 12 per cent damages on the amount of loss recovered under such judgment. As so reformed, the judgment is affirmed.

      . Philadelphia Life has a second point of error to the effect that the trial court did not err in refusing to grant Doris recovery of 12 per cent penalty on the amount of the loss. This is not a point of error and we will consider it as a counter point.

      . The Tex.Bus. & Comm.Code Ann. § 9.105(a)(4) (Tex. UCC 1968), defines a debtor as follows: “ ‘Debtor’ means the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, and includes the seller of accounts, contracts rights or chattel paper. Where the debtor and the owner of the collateral are not the same person, the term ‘debtor’ means the owner of the collateral in any provision of the chapter dealing with the collateral, the obligor in any provision dealing with the obligation, and may include both where the context so requires.”

      . Three conditions must be met to be an eligible insured: (1) under the age of 66 years at the time of becoming indebted to creditor; (2) who are liable directly or indirectly to pay or repay sums of money to the creditor; and (3) who agrees to pay the required premium contributions to the creditor. C. R. Gumpp meets these three requirements.


author: PRESLAR, Chief Justice.

text:
    Johnny B. WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 6640.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 8, 1978.
    Rehearing Denied March 8, 1978.
    C. R. Kit Bramblett, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., John P. Bradford, Douglas Gelo, Thomas C. Roepke, Asst. Dist. Attys., El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a purported appeal from an order of the trial Court disposing of stolen property under Article 47.02, Tex.Code Crim. Proc. We dismiss the appeal for want of jurisdiction in the Court of Civil Appeals.

The Appellant, Johnny B. Williams, was indicted by the El Paso County Grand Jury for the offense of burglary of habitation. Subsequent to his arrest, Appellant confessed to several burglaries, including the homes of three of the four claimants herein involved. Also subsequent to his arrest, the property in question was seized from his home along with other stolen property. The indictments against Appellant were dismissed because the confession was inadmissible and, following such dismissal, Appellant brought this action seeking to recover “One Kiln and iron pot with its contents” taken from his home by the police. These are the sole items in his pleadings.

Article 47.02, Tex.Code Crim.Proc., provides in part:

“Upon the trial of any criminal action for theft, or for any other illegal acquisition of property which is by law a penal offense, the court trying the case shall order the property to be restored to the person appearing by the proof to be the owner of the same.”

Following a hearing, the Court divided the property among certain of the claimants who were burglary victims and, among other things, awarded 36.8 pounds of “silver” in equal portions to four claimants who were victims of burglaries. This “silver” is not described, and there is no evidence of its quality — whether it is an alloy, pot metal, or in fact the metal silver. Appellant was awarded only a kiln and a pot. His appeal is from a failure of the Court to award him the 36.8 pounds of “silver,” which is not otherwise described, but supposedly is the “contents” of the pot.

The Court of Civil Appeals is required to determine its own jurisdiction and to take notice of its want of appellate jurisdiction when disclosed by the record, even though no party has raised a question of jurisdiction. Gibbs v. Melton, 354 S.W.2d 426 (Tex.Civ.App.—Dallas 1962, no writ). It is held that proceedings of this nature under Article 47.02 are civil in nature, although arising out of a criminal trial. Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974). Our determination that this Court lacks jurisdiction is based on the fact that the amount in controversy is neither pleaded nor appears in the judgment; in fact, nowhere in the record is the amount in controversy set out. Article 1819, Tex.Rev.Civ.Stat.Ann., limits the jurisdiction of the Courts of Civil Appeals to civil cases where the amount in controversy or the judgment rendered shall exceed $100.00, exclusive of interest and costs. Also, Article 2249, Tex. Rev.Civ.Stat.Ann., permits appeals to the Court of Civil Appeals in cases where the judgment or amount in controversy exceeds $100.00, exclusive of interest and costs. There being no designation of the value of the property in controversy in either the pleadings or the judgment, or otherwise in the record for that matter, this Court is without jurisdiction.

Our determination is based on the jurisdiction of this Court and not the trial Court. Therefore, the trial Court judgment is undisturbed. The appeal is dismissed.


text:
    MOSSY OLDSMOBILE, INC., Appellant, v. CITY OF HOUSTON, Texas, et al., Appellees.
    No. 17114.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 9, 1978.

      James A. Carmody, Houston, for appellant.
    Robert M. Collie, Jr., City Atty., Jay Howell, Sr., Asst. City Atty., Houston, for appellees.
   EVANS, Justice.

The appellant has filed a motion for an extension of time to file its record on appeal. The motion has been contested by the appellees on the ground that it fails to show good cause for an extension under Rule 385(b), Texas Rules Civil Procedure.

The appeal is from an interlocutory order entered December 15,1977, denying the appellant’s application for a temporary injunction. The record on appeal was required to be filed in this court within 20 days after that date.

As a basis for its motion, the appellant alleges that on December 20, 1977, it requested the trial court to make findings of fact and conclusions of law, but that due to the holiday season such findings and conclusions had not been filed, and that appellant desired to wait until the findings and conclusions had been filed before incurring the expense of designating the transcript on appeal.

In an appeal from an interlocutory order, the trial court is not required to file findings of fact and conclusions of law; however it is permissible for the trial court to do so if the filing thereof will not delay the filing of the record in the appellate court. Rule 385(e), Texas Rules Civil Procedure. Thus, in the case at bar the appellant was not justified in waiting until the trial court filed findings and conclusions before ordering the record on appeal.

“The filing of the record in the appellate court within the time prescribed by Rule 385 is jurisdictional. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956 (1943). Before an extension of time may be granted under the rule, the motion for additional time must show ‘good cause therefor.’ Rule 376 provides that the appellant ‘shall promptly file with the clerk’ a written direction to prepare the transcript. The rule does not fix the time that shall be considered prompt action in ordering the transcript, and our courts have held ‘promptly’ to mean within a reasonable time in light of all the attendant facts and circumstances.” Pledger v. Ools, 476 S.W.2d 854, 856 (Tex.Civ.App.—Amarillo 1972, no writ).

The allegations of appellant’s motion do not establish good cause, and this court is without jurisdiction to grant the extension of time requested. Garza v. State, 503 S.W.2d 415 (Tex.Civ.App.—Corpus Christi 1973, no writ); Pledger v. Ools, supra.

The appeal is dismissed.


text:
    METAL ENTERPRISES, INC., Appellant, v. DON LOVE, INC., et al., Appellees.
    No. 17097.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 9, 1978.
    Rehearing Denied March 9, 1978.
    Charles B. Kirklin, Houston, for appellant.
    Bracewell & Patterson, Michael A. Pohl, Houston, for appellees.
   EVANS, Justice.

Metal Enterprises, Inc., instituted this suit in 1972 against Don Love, individually, Don Love, Inc., and U. S. Plywood-Champion Papers, Inc. Answers were filed on behalf of all defendants, and the defendant Don Love, Inc., also filed a counterclaim.

On May 9, 1977, the plaintiff’s suit was dismissed for want of prosecution and on June 1, 1977, the plaintiff’s motion for reinstatement was denied. Since the counterclaim filed by Don Love, Inc., was not expressly or by necessary implication disposed of by these orders, that cause remained pending on the court’s docket. Northeast Independent School District v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966).

Metal Enterprises, Inc. attempted to appeal from the trial court’s order of May 9, 1977, but the appeal was dismissed by this court on August 25, 1977, for the reason that the appeal bond had not been timely filed. On July 26, 1977, during the penden-cy of the matter in this court, Metal Enterprises, Inc. filed in the cause pending in the trial court an answer to the counterclaim of Don Love, Inc., and a pleading which it termed a “counterclaim” in which it asserted against all of the original defendants, including Don Love, Inc., the same claim it had alleged in its original petition.

On September 1, 1977, the trial court entered two orders, one purporting to sustain special exceptions and pleas in bar leveled by Don Love, Inc., against the “counterclaim” of Metal Enterprises, Inc., and the other being a nunc pro tunc order which recites the following:

“Be it remembered that on June 1,1977 Don Love, Inc. announced in open court before all counsel of record that it was dismissing its counterclaim against Plaintiff Metal Enterprises, Inc. Accordingly, it is
ORDERED, ADJUDGED and DECREED that the counterclaim of Don Love, Inc. was dismissed on June 1, 1977. Order date September 1, 1977.”

On June 1, 1977, when Don Love, Inc. announced to the court that it was dismissing its counterclaim against Metal Enterprises, Inc., there was no pleading for affirmative relief on file by any adverse party. Upon such announcement in open court before all counsel of record, Don Love’s rights with respect to the dismissal of its counterclaim became fixed, and the court’s delay in entering a formal order of dismissal could not serve as a basis for the subsequent assertion of an affirmative claim for relief by Metal Enterprises, Inc. Lanier v. Lanier, 328 S.W.2d 237 (Tex.Civ.App.—El Paso 1959, error dism’d). The dismissal became effective at the time Love’s motion to dismiss was brought to the attention of the court and of opposing counsel and the later pleading by Metal Enterprises, Inc., did not reinstate the action. Cape Oil Company v. Williams, 427 S.W.2d 122, 125 (Tex.Civ.App.—Tyler 1968, no writ). After Love’s counterclaim was dismissed, no further issues remained in the suit and the cause was “fully ripe” for final disposition. It was therefore proper for the court to enter the nunc pro tunc order on September 1, 1977, recording the fact that the counterclaim had been dismissed on June 1, 1977. Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961; McDonald, Texas Civil Practice, Volume 4, § 17.07.2; p. 57.

Metal Enterprises, Inc. has appealed only from the order of the trial court dated September 1, 1977, which purports to sustain Love’s special exceptions and pleas in bar, and it has not appealed from the nunc pro tunc order of same date. On September 1, 1977, all claims for affirmative relief had been dismissed, and there was nothing in the case to be litigated other than costs. The appellate courts will not review judgments in cases where no actual controversy exists between the parties other than a determination of costs. City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939). Under such circumstances, the cause, not merely the appeal, will be dismissed as moot. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943).

This disposition of the appeal renders unnecessary this court’s consideration of the appellees’ motion to have the cause affirmed on certificate and of the appellant’s motion for an extension of time in which to file the appellant’s brief.

The appellees’ motion for an award of damages for a frivolous appeal and to increase the amount of the cost bond is denied.

The cause is dismissed.


text:
    NORRIS OF HOUSTON, INC., et al., Appellants, v. Christine GAFAS, Appellee.
    No. 17059.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 9, 1978.
    Rehearing Denied March 9, 1978.

      Thomas G. Bousquet, Houston, for appellants; W. McNab Miller, III, Houston, of counsel.
    Lackshin & Nathan, Houston, for appel-lee; Bernus Wm. Fischman, A. R. Schwartz, Houston, of counsel.
   PEDEN, Justice.

Plaintiffs appeal from the denial of a temporary injunction against a former employee to enforce a covenant not to compete. Mrs. Gafas says the denial was proper because her working conditions were intolerable, her former employer represented that the covenant would not be enforced, and because it was too vague to be enforceable.

Norris of Houston operates two men’s hair styling salons and two barber colleges in Houston. Mrs. Gafas first worked for Norris as a manicurist but later worked as a hair stylist at its Post Oak area salon for more than four years after signing the contract containing the restrictive covenant. In January of 1977, she voluntarily resigned her position with Norris and opened her own salon between two of its locations, about a mile from Norris’ Post Oak location and two miles from its Audley St. salon. Norris filed the original petition on February 10, 1977 seeking a temporary injunction to enforce this provision:

“EMPLOYEE covenants that he will not in Harris County, Texas within three (3) years from the termination of his employment, engage in business either as principal, employee, partner or stockholder, in competition with any business carried on or contemplated at the time of termination of his employment, by the EMPLOYER, or furnish information or divulge trade or business secrets of the EMPLOYER directly or indirectly to anyone engaged or interested in such line of business.”

The scope of our appellate review of the granting or refusing of a temporary injunction is limited to a determination of whether the trial judge abused his discretion or failed to correctly apply the law to undisputed facts. Manning v. Wieser, 474 S.W.2d 448 (Tex.1971). We must affirm the trial court’s order if there is any evidence of probative value to sustain the findings. There being no written findings in our case, we look to those presumed in support of the order. If the evidence is conflicting, we are not to substitute our judgment for that of the trial court. Arrow Chemical Corp. v. Anderson, 386 S.W.2d 309, 313 (Tex.Civ.App.1965, writ ref. n. r. e.).

Appellants’ first point of error is that the trial court abused its discretion as a matter of law in denying the temporary injunction because they showed a probable right to injunctive relief and a probable injury. We sustain this point. Probable right and probable injury were clearly shown by Mrs. Gafas’ having opened a hairstyling shop near the appellants’ in direct competition and having successfully solicited their customers. The more difficult questions arise over the defensive issues.

When the applicant rested in this case the trial judge said he had two problems: 1) the contract prohibition against competition with any business carried on or contemplated by the employer, and 2) injunction is a “very radical” form of relief; it invokes equity powers of the court, so the applicant must come into court with clean hands. He referred to allegations of a) representations that Mrs. Gafas would not be sued if she opened another business and to allegations of b) her working conditions’ being extremely difficult. The trial court’s remarks served to focus the parties’ attention on this appeal, but they do not constitute findings of fact, and we must affirm the trial court’s order if it is supported by the evidence under any rule of law.

Appellants’ second and third points complain that the trial court abused its discretion in apparently basing the denial of the injunction in part on vagueness of the non-competition covenant. We agree with appellants that the covenant was not vague and unenforceable. Although the prohibition of engaging in business “in competition with any business carried on or contemplated at the time of termination of his employment by the employer” could be unreasonable as to scope of coverage, the appellants were not seeking to enjoin Mrs. Gafas from any of their contemplated activities, so such provision was immaterial in this case.

“(A)lthough the territory or period stipulated by the parties may be unreasonable, a court of equity will nevertheless enforce the contract by granting an injunction restraining the defendant from competing for a time and within an area that are reasonable under the circumstances.”

Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 952 (1960). In our case the appellee was engaged in a business directly competing with the one being carried on by the appellants. Had the trial court issued the temporary injunction, it should have deleted the vague provision as to any contemplated business and limited the injunction to the business of hair styling. See Martin v. Kidde Sales and Service, Inc., 496 S.W.2d 714, 718 (Tex.Civ.App.1973, no writ); Thames v. Rotary Engineering Co., 315 S.W.2d 589, 592 (Tex.Civ.App.1958, writ ref., n. r. e.); Haig v. Gittings, 260 S.W.2d 311, 313 (Tex.Civ.App.1953, no writ). The vague provision alone does not support a denial of the temporary injunction.

In their fourth point of error the appellants say that the trial judge abused his discretion in denying their injunction, apparently basing his denial in part on unclean hands: what he described as Mrs. Gafas’ extremely difficult working conditions.

It is well settled that an employer cannot wrongfully breach a provision of an employment contract that is favorable to the employee (such as reducing his wages without his consent and without contractual authority to do so) and then go into a court of equity to secure, by injunction, the enforcement of another provision favorable to it. Langdon v. Progress Laundry and Cleaning Co., 105 S.W.2d 346 (Tex.Civ.App. 1937, writ ref.).

In Omohundro v. Matthews, Tex. 1960, 341 S.W.2d 401, 410, the Texas Supreme Court stated that the clean hands rule is not absolute, citing 2 Pomeroy 99:

“The party to a suit, complaining that his opponent is in court with ‘unclean hands’ because of the latter’s conduct in the transaction out of which litigation arose, or with which it is connected, must show that he himself has been injured by such conduct, to justify the application of the principle to the case. The wrong must have been done to the defendant himself and not to some third party.”

In other words, the doctrine of unclean hands “does not operate to repel all sinners from a court of equity.” Kirkland v. Handrick, 173 S.W.2d 735 (Tex.Civ.App.1943, writ ref. w. o. m.), citing 30 C.J.S. Equity § 98, p. 487 now found at 30 C.J.S. Equity § 98, p. 1034 (1965). The clean hands maxim should not be applied when the defendant has not been seriously harmed and the wrong complained of can be corrected. Rodgers v. Tracy, 242 S.W.2d 900, 905 (Tex. Civ.App.1951, writ ref. n. r. e.), citing 30 C.J.S. Equity § 95, p. 484, now found at 30 C.J.S. Equity § 95, p. 1026 (1965).

It is clear that in our case the appellants’ noncompetition covenant would not be enforceable against Mrs. Gafas if she had been discharged without cause. Less clear is whether the unclean hands doctrine can prevent its enforcement under the evidence here adduced.

Mrs. Gafas’ position is that her intolerable working conditions were impeding her ability to perform under the contract and that the trial court properly refused to enjoin her when her employer knew, or should have known, of the illegal and intolerable working conditions in and about the premises. In her testimony, she complained of several “intolerable working conditions”. Evidence of some of them was based on hearsay. We must determine whether any meet the requirement as stated in the Omo-hundro case, supra, that one who complains of the other’s conduct must show that she has been injured by it; the wrong must have been done to her. The only working condition by which she may have shown herself injured or potentially injured was the use of drugs on the job. Mr. Norris Womack established and operates the companies. Mrs. Gafas’ testimony about Wom-ack’s two offers of a puff from a marijuana cigarette (reluctantly accepted) and one offer of cocaine (declined) at private parties in his home do not amount to intolerable working conditions, but she named five employees she said she had seen smoke marijuana at the Post Oak location. Two of them shine shoes, one is a receptionist and two are hair stylists. She did not testify that she had ever seen Norris Womack use any drugs on the job. She said seeing the drug used made her very uncomfortable and she feared that her license could be revoked. She did not testify that she had told her superiors about use of marijuana on the job. Norris Womack testified without contradiction that he did not know of any marijuana use on the premises and did not condone it.

Mrs. Gafas also expressed dissatisfaction about her inability to communicate with management. She said she made a complaint to the accountant in confidence but was later asked about it by the manager. Her testimony about affairs between employees and about loss of tips was hearsay.

Although we have found no Texas cases holding that intolerable working conditions make a non-competition covenant unenforceable, that result might obtain if the conditions imposed by management amounted to a breach of the employee’s contract or to a wrong done to the employee. We cannot say from the facts in our case, even when taken in the light most favorable to the trial court’s order, that Mrs. Gafas’ working conditions amounted to a wrong done to her by the appellants.

Appellants’ fifth point of error complains that the trial judge apparently based, in part, his denial of the injunction on Wom-ack’s having allegedly said he would not enforce the covenant against Mrs. Gafas. We review her testimony. Womack said at her dinner party in May, 1976, that anyone who left his employ would be unable- to make it, so he would wish them luck, but when asked why he didn’t give appellee her contract back, he said “we have to scare them somehow, don’t we?” He also said that if she was very unhappy he wouldn’t hold her back. In a telephone conversation in December, 1976, Womack reassured her that he would give her his blessings if she decided to leave, and at a luncheon on January 3, 1977, she asked Mr. Womack if he was going to sue her and he said “No, I am not. Eight years is a long time and we are friends.” She told him her shop was going to be on Richmond Ave, in Houston, between Wesleyan and Chimney Rock, and he asked if that wasn’t pretty close. When she asked him for her contract and for a letter saying that he would not enforce it, he said that was a ridiculous request.

Mrs. Gafas testified that she had leased the equipped premises for her own shop in October of 1976; she had decided then that she was going to leave, but she didn’t decide when to go until January 3, 1977. We note that she did not say she had told him she was going to solicit his customers.

We need not discuss Womack’s denial of parts of these conversations; we find no basis for holding that the injunction should be denied because Womack told Ga-fas he would not sue her. We hold that not all of the necessary elements of equitable estoppel have been shown, that appellants have not voluntarily and knowingly surrendered their right to sue, and that bringing this suit did not invoke the maxim of unclean hands.

Failure to prove any one or more of the elements of estoppel has been declared to be fatal. Concord Oil Co. v. Alco Oil & Gas Corp., 387 S.W.2d 635 (Tex.1965). Ordinarily an estoppel cannot be grounded on a promise to do something in the future. 22 Tex.Jur.2d 671, Estoppel § 9. The exception to this rule is known as the doctrine of promissory estoppel, when an actual promise must have been made and all the other elements of justifiable reliance and irreparable detriment to the promisee must be present. 31 C.J.S. Estoppel § 80, p. 470. One relying on estoppel must have exercised such reasonable diligence to acquire knowledge of the real facts as the circumstances of the case require. If he ignores highly suspicious circumstances which should warn him of danger or loss he cannot invoke the doctrine of estoppel. 31 C.J.S. Estoppel § 71, p. 434, p. 435.

We conclude that when Mrs. Gafas started soliciting Norris’s customers (after this suit was filed), her previous conversations with Norris must have warned her of the danger that he would prosecute this suit. For the same reasons, the appellants have not been shown to have unclean hands by reason of prosecuting it.

Appellants’ last point is that the trial court erred in sustaining an objection (based on lack of proper predicate) to a photograph of appellee’s styling salon. Mrs. Gafas had said it accurately showed her shop at present. This is a proper predicate. McCormick and Ray, 2 Texas Law of Evidence 319, § 1465 (1956). However, the appellants did not show that this was such a denial of their rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

This matter was not fully developed; the trial judge ruled in the defendant’s favor when the plaintiffs rested. Although the evidence adduced thus far does not support the denial of the injunction, the defendant is entitled to offer more. The order of the trial court is reversed and remanded.