author: PRESLAR, Chief Justice.

text:
    David L. JEZEK, Individually and as Next Friend of Calvin Keith Jezek, a Minor, Appellant, v. CITY OF MIDLAND, Appellee.
    No. 6816.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 22, 1979.
    Rehearing Denied Oct. 3, 1979.

      Law Offices of Warren K. Heagy, Warren K. Heagy, Odessa, William B. Smith, Midland, Erwin A. Elias, Waco, for appellant.
    Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Richard E. Booth, David K. Brooks, Joseph M. Nuessle, City Atty., J. Bryan Martin, Asst. City Atty., Midland, for appellee.
    Joseph G. Werner, Asst. City Atty., Dallas, for Texas City Attorneys’ Ass’n, amicus curiae.
   OPINION

PRESLAR, Chief Justice.

This is a personal injury suit growing out of an automobile intersection collision. The principal question involved is the liability of a municipality for failure to remove weeds and trees obstructing or obscuring the view at a street intersection. Following a trial by jury, the trial Court rendered judgment for the Defendant City. We affirm.

Appellant brought this suit against the City of Midland for injuries suffered by his minor son when he drove his car into a “T” intersection of streets and was struck by a motorist approaching from the left. The striking motorist is not a party to the suit; rather, it was against the City of Midland on allegations that the City was negligent in failing to remove the brush and trees at the corner of the intersection so that a driver, situated as was Plaintiff’s son, could see traffic approaching from the west; in failing to properly maintain the intersection in question; and in failing to put a stop sign at the intersection. In answer to Special Issues numbered 1, 2 and 3, the jury found that mesquite and other brush had grown up at the intersection; that this brush obstructed the view; and that the City knew or should have known of the obstruction of view existing at the intersection. It was also found by the jury that the City failed to maintain the intersection in a reasonably safe condition, and such was negligence and a proximate cause of the injuries sustained. Negligence was also found on the part of Appellant’s son, and that 35% of the negligence causing the accident was attributable to him and 65% to the City.

Appellant relies on the well established law that maintenance of streets in a safe condition is a proprietary function, and a city is therefore liable for its negligence in the performance of this function. City of Galveston v. Posnainsky, 62 Tex. 118 (1884); City of Austin v. Schmedes, 154 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680 (1955); City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180 (1960); Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955); City of Houston v. Glover, 355 S.W.2d 757 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.); City of Houston v. George, 479 S.W.2d 257 (Tex.1972); City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Com.App.1931); City of Dallas v. Maxwell, 248 S.W. 667 (Tex.Com.App.1923, opinion approved). The duty is not limited to the traveled portion of the street alone, but extends to the prevention of defects outside the traveled or improved portion of the street if its proximity thereto renders it probable that such defect will result in injury to those using the improved portion of the street. City of Houston v. Glover, supra; City of Waco v. Darnell, supra; City of Dallas v. Maxwell, supra. We are of the opinion that the rule cited has no application to this case because the defect here involved was that of an obstruction of view only.

We hold that the controlling rule of law in this case is stated in Ynsfran v. Burkhart, 247 S.W.2d 907 (Tex.Civ.App.—Austin 1952, writ ref’d n. r. e.):

The failure of a city to remove obstructions. to view existing on an unimproved portion of the street does not constitute a breach of duty to maintain its streets. Owens v. Town of Booneville, 1949, 206 Miss. 345, 40 So.2d 158; Barton v. King County, Wash.1943 [18 Wash.2d 573] 139 P.2d 1019; Goodaile v. Board of Com’rs of Cowley County, 111 Kan. 542, 207 P. 785.

This case, like the one before us, involved a collision between two motorists and the defendant in a suit that followed empleaded the City of Austin contending negligence on the part of the City as concerned conditions of the intersection. The court there noted what is also true in this case, that there were no allegations that either the appellants or appellees struck any defect, hole or obstruction in or near the streets in question. It then made the statement above quoted which appears to be well established law in other jurisdictions outside of Texas.

In 25 Am.Jur. Highways Sec. 500 at 784 (1940), it is stated:

A mere obstruction of the view of a traveler by some object, substance, or condition has been held not to constitute a defect in the way within the operation of the rules and provisions imposing liability for injuries caused by defects.

That rule is the subject of an Annotation in 42 A.L.R.2d 817 which states:

The authorities appear to be in accord that in the absence of a statute creating such liability, a municipality or other governmental unit is not liable for damages growing out of an accident at a highway intersection or railroad crossing on the ground that it failed to cut weeds, brush, or other vegetation obstructing or obscuring the view at the intersection or crossing, or to require that it be cut.

Cited in support of the statement are Goodaile v. Board of Com’rs of Cowley County, 111 Kan. 542, 207 P. 785 (1922); Bohm v. Racette, 118 Kan. 670, 236 P. 811, 42 A.L.R. 571 (1925); Owens v. Town of Booneville, 206 Miss. 345, 40 So.2d 158 (1949); Ynsfran v. Burkhart, supra; Barton v. King County, 18 Wash.2d 573, 139 P.2d 1019 (1943); Bradshaw v. City of Seattle, 43 Wash.2d 766, 264 P.2d 265, 42 A.L.R.2d 800 (1953). Later cases following the rule announced in the Annotation are: from Oklahoma—Williams v. Bristow, 350 P.2d 484 (Okl.1960); from North Dakota—Belt v. City of Grand Forks, 68 N.W.2d 114 (N.D.1955); from Arizona—Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977); Hidalgo v. Cochise County, 13 Ariz.App. 27, 474 P.2d 34 (1970); from New York—Sylor v. Irwin, 62 Misc.2d 469, 308 N.Y.S.2d 937 (1970); from Washington—McGough v. City of Edmonds, 1 Wash.App. 164, 460 P.2d 302 (1969). And, see 39 Am.Jur.2d Highways Sec. 462 at 860 (1968). The rule of no liability for obstruction of view is also recognized by a well known authority—19 McQuillin, Municipal Corporations, Sec. 54.69a Municipal Liability for Defective Streets—Obstructions to View at 177 (3d ed. 1967).

Stewart v. Lewis, 292 So.2d 303 (La.App.1974), is the only case which our research has uncovered that is a clear cut ruling contrary to the above authorities, and it cites no authority for its holding. All other out of state cases cited by Appellant and uncovered by our research contain some distinguishable feature such as negligence based on the establishment of a nuisance, Coppedge v. Columbus, 134 Ga.App. 5, 213 S.E.2d 144 (1975), or a duty created by statute or ordinance, Dudum v. City of San Mateo, 167 Cal.App.2d 593, 334 P.2d 968 (1959); Evans v. Allstate Insurance Company, 340 So.2d 634 (La.App.1976); Dabov v. Allstate Insurance Company, 302 So.2d 697 (La.App.1974); Dupre v. Evangeline Parish Police Jury, 315 So.2d 148 (La.App.1975). While we are of the opinion that the authorities compel us to follow the rule of Ynsfran v. Burkhart, we are further of the opinion that the rule is sound. It is not in conflict with the general rule that a municipality is liable for defects for hazards within the street or in close proximity thereto. The basis of that liability was expressed early by the Commission of Appeals in City of Dallas v. Maxwell, supra. In speaking of such defects, the court said:

And such condition, to come within the purview of reasonable foresight, need not necessarily be confined to the street itself, but may arise by reason of its proximity to the street, which would render it not improbable that it would result in injury to those using the street in the ordinary manner and while exercising due care. [Emphasis added.]

This rule was repeated by the Commission of Appeals in City of Waco v. Darnell, supra, the court saying that the city’s duty is not confined to keeping the street or the traveled or improved portion in proper condition, but that one injured by a defect or obstruction outside the street may still be entitled to recover “if such defect or obstruction by reason of its proximity to the street, or traveled or improved portion thereof, renders it not improbable that such defect will result in injury to those using the street . . .” The Supreme Court repeated the reason or basis for the rule in City of Houston v. George, supra, Justice Reavley saying:

The basis of the liability was the rule that requires a municipality to protect the user of a roadway from a condition beyond the road itself but which presents a recognizable danger to the normal user of the road. Prosser, Law of Torts, 352 n. 19 (4th ed. 1971).

The defect here is an obstruction of the view of moving vehicles; absent such vehicles, the defect is not such as would result in injury to those using the street in the ordinary manner. The street itself is safe. It is only when you have another car involved that there is any danger. This is discussed in the cited case of Bradshaw v. City of Seattle, supra, which was a collision between an automobile and a diesel engine. In Bohm v. Racette, supra, liability for defects in a highway was imposed by statute, but it was held that obstruction to view was not such a defect and there was no liability for a resulting intersection collision; it was held that the defect, within the meaning of the statute, is something that interferes with movement over the highway. If the street itself is safe, then the only danger arises from other motorists. It is a matter of traffic regulation, i. e., the prevention of collisions between motorists caused by a blind intersection. Appellant, in fact, recognized this and pled that the City was negligent in failing to erect a stop sign at the intersection in question. However, the case was not tried on that basis but solely on the basis of the proprietary function of maintaining streets.

It is well settled that the regulation of traffic is not a proprietary function but is a governmental function as a reasonable exercise of police power. Voight v. City of Corpus Christi, 419 S.W.2d 445 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.); City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960).

Ynsfran v. Burkhart, supra, like the case before us, involved a collision between two automobiles and not a collision with a defect or obstruction in or near the traveled portion of the street. It was decided after the cases of Dallas v. Maxwell and City of Waco v. Darnell, supra, and clearly recognized the rule of law announced in those cases. The court in Ynsfran v. Burkhart, supra, said:

We recognize the rule that in maintaining streets, the City has the duty to prevent obstructions or defects outside the travelled or improved portion of the street if its proximity thereto renders it probable that such defect will result in injury to those using the improved portion of the street in the ordinary manner, and while using due care. City of Waco v. Darnell, supra.

The holding in Ynsfran v. Burkhart is controlling of our decision here.

We hold that the City of Midland had no duty to Appellant to remove mere obstructions to view and is not liable to Appellant as a matter of law. We overrule Appellant’s three points of error, and our decision makes it unnecessary to consider Appellee’s counterpoints.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: REYNOLDS, Chief Justice.

license: Public Domain

text:
    BOARD OF FIREMEN, POLICEMEN AND FIRE ALARM OPERATORS’ PENSION FUND TRUSTEES OF DALLAS, Texas, and the City of Dallas, Texas, Appellants, v. Earl C. BILLS, Appellee.
    No. 9034.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 29, 1979.
    Lee E. Holt, City Atty., Ronald E. Deutsch, Asst. City. Atty., Dallas, for appellants.
    Marvin Menaker and Less F. Weisbrod, Dallas, for appellee.
   REYNOLDS, Chief Justice.

The primary question in this appeal from an administrative decision to award a disabled fireman a fifty percent partial disability pension is whether the decision has reasonable support in substantial evidence. We answer in the negative. The secondary question then becomes whether the evidence validates the trial court’s adjudication that the fireman was entitled to a total disability pension. We answer in the affirmative. Affirmed.

Employed by the fire department of the City of Dallas, Texas, as a driver-engineer, Earl C. Bills participated in the firemen, policemen and fire alarm operators’ pension plan established by Tex.Rev.Civ.Stat.Ann. art. 6243a (Vernon 1970; Vernon Supp. 1978). The plan is governed by the Board of Firemen, Policemen and Fire Alarm Operators’ Pension Fund Trustees of Dallas, Texas, which has complete authority and power to administer all provisions of the statute and any implied powers therein. Article 6243a § 1.

In September of 1975, Bills received an injury to his back and took sick leave status until his accumulated sick leave pay was exhausted in March of 1976. He applied for disability benefits under article 6243a § 9 on 27 February 1976, although he did not actually retire until 1 March 1976, the same day he received his twenty-year service certificate.

The Board of Trustees first considered Bills’ application for disability benefits on 11 March 1976. On 8 April 1976, an initial decision was made by the Board awarding to Bills a temporary, partial pension until his fiftieth birthday when he would begin receiving a service retirement pension. After Bills’ subsequent request of the Board to review his case again and grant him a full disability pension was denied on 13 January 1977, Bills filed this suit in a district court.

Following a hearing before the court, judgment was rendered in favor of Bills for $5,378.55 plus interest, that being the difference, as stipulated by the litigants, between the half-pension Bills received and the full-pension he sought in the suit. Findings of fact and conclusions of law were requested by Bills and made by the court.

Appealing, the Board and the City initially insist that the Board’s decision is supported by substantial evidence. Conced-edly, the substantial evidence rule governs the review of the decision of the Board, an administrative body. Whether the decision of the Board is reasonably supported by substantial evidence is a question of law to be resolved by the court without a jury, Bank of North America v. State Banking Board, 492 S.W.2d 458, 459 (Tex.1973), and the question must be determined from the entire record in the case as that record was made in the trial court. Board of Firemen's Relief & Retirement F. Tr. v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183 (1951). The test is whether the evidence as a whole is such that reasonable minds could have reached the conclusion the Board must have reached in order to justify its action. Auto Convoy Co. v. Railroad Commission of Texas, 507 S.W.2d 718, 722 (Tex.1974). Thus, to justify judicial relief from the Board’s decision, Bills must show that the decision is not reasonably supported by substantial evidence. Board of Firemen’s Relief & Retirement F. Tr. v. Marks, supra, at 183.

Focused on here is section 9 of article 6243a, a part of the legislative scheme, beginning with article 6229, which establishes retirement and disability pensions for certain municipal employees. The section provides that any member of the fire department of a city or town within the provisions of article 6243a, and who is contributing to the pension fund, shall be retired from service and shall be entitled to receive pension benefits if he becomes “so permanently disabled ... as to incapacitate him from the performance of his duties . (emphasis added).” This provision has been interpreted to mean that a fireman is entitled to the full pension when his injury renders him permanently disabled and incapacitated to perform the duties of a fireman. City of Dallas v. Hoskins, 193 S.W.2d 533, 535 (Tex.Civ.App.—Dallas 1946, writ ref’d n. r. e.).

Given this setting for consideration of the record made in the trial court, it is noted that the trial record includes the testimony of Bills, stipulations by the litigants, and various items of documentary evidence. Among the documented items is a 5 March 1976 report by Dr. M. J. Kelly that Bills was totally and permanently disabled from any active fire fighting assignment but was “OK” for more sedentary assignments.

In a memorandum dated 10 March 1976, Dr. E. Lowell Berry, Director of Public Health for the City of Dallas, expressed the opinion that “with the requirement that ‘no light-duty assignments are available,’ we must find him [Bills] totally and permanently disabled.” On 7 April 1976, it was Dr. Berry’s opinion that although Bills should be able to meet the physical requirements of many types of work, “he really is not qualified for full duty as a fireman.” In this connection, the litigants stipulated that when Dr. Berry was asked by the Board “to define what his total personal knowledge of body disability was as opposed to wither (sic) not receiving a disability pension or receiving a total and permanent pension, and Dr. Berry said that Mr. Bills was fifty percent disabled.”

Dr. Russ B. Graham, an orthopedic surgeon who treated Bills, stated in a letter dated 19 February 1976 that Bills was continuously disabled from his work as a firefighter. In another letter dated 13 July 1976, Dr. Graham wrote that Bills should not resume vigorous duties involved in firefighting and that if sedentary activities or lighter duties were not available within the framework of the fire department, then Bills should be considered “permanently impaired from duties of ‘a fire fighter.’ ”

Bills testified that he requested a job within the department and would do anything offered, but was refused. He also testified that he was not completely disabled, but that he was not able to do all of the things which a fireman does.

In response to Dr. Berry’s opinion that of the eight typical duties of a driver-engineer, the rank held by Bills, Bills was only capable of chauffeuring a battalion chief to fires and during daily inspections, Dodd Miller, Chief of the fire department, stated that a driver-engineer is subject to being required to perform any or all of the listed duties. Therefore, said Chief Miller, there were no positions in the fire department that Bills was capable of filling.

The record made in the trial court establishes that although Earl C. Bills was not totally and permanently disabled from work generally, he was totally and permanently disabled from doing the duties required of a fireman. Even though Bills offered to perform any duty available, his disability disqualified him, according to all the medical opinions, from performing the duties of his position, and, in the opinion of his superior, from filling any position in the fire department. Hence, by the fire department’s own standards, Bills was so disabled as to incapacitate him from the performance of his duties and, by the dictates of article 6243a § 9, Bills’ degree of disability was total. See City of Dallas v. Hoskins, supra, at 535.

Consistent with the mandatory standards of review, Bills demonstrated from the evidence as a whole that reasonable minds could not have reached the conclusion the Board must have reached to justify its decision that he was entitled only to a partial disability pension. It inevitably follows that the Board’s decision finds no reasonable support in substantial evidence, and Bills is entitled to have the Board’s decision set aside. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1030 (1942).

Moreover, all of the evidence shows that Bills is, within the meaning of the statute, so totally and permanently disabled as to incapacitate him from the performance of his duties. Therefore, as a matter of law, Bills is entitled to the disability pension statutorily set for total disability and awarded by the trial court. Cline v. Firemen’s Relief & Retirement Fund, 545 S.W.2d 895 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.); Bryan v. Board of Trustees of Houston Fire R. & R. F., 497 S.W.2d 367 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ ref’d n. r. e.); Firemen’s Relief and Retirement Fund v. Powers, 411 S.W.2d 395 (Tex.Civ.App.—Austin 1967, writ ref’d n. r. e.).

Notwithstanding, the Board and the City next complain that the trial court exceeded its constitutional powers by substituting its judgment for that of the Board’s. The predicate for the complaint is that the trial court made findings of fact at variance with, and in derogation of the fact-finding duty of, the Board.

Indisputably, the Board, charged with the administration of the pension fund, must ascertain the facts which are controverted; and, equally undisputed, is the recognition that the court does not substitute its judgment on controverted facts for that of the administrative agency. Auto Convoy Co. v. Railroad Commission of Texas, supra, at 722. Yet, when the evidence adduced in court is conclusive on the degree of disability, the court’s adjudication of disability becomes a matter of law and not the ascertainment of a fact which is controverted. See Moss v. Hipp, 387 S.W.2d 656, 659 (Tex.1965), for the holding that a fact is established as a matter of law where the evidence thereon is clear and positive and there are no circumstances tending to discredit or impeach it. The trial record made here is conclusive, under the statute, of the degree of Bills’ disability and, therefore, the question before the trial court was purely one of law. In this light, the findings of fact made by the trial court were immaterial, if not inappropriate, City of Pasadena v. Barron, 567 S.W.2d 73, 75 (Tex.Civ.App.—Houston [14 Dist.] 1978, writ ref’d n. r. e.), and the making of them is not a ground for reversal. Andrews v. Key, 77 Tex. 35, 13 S.W. 640, 641 (1890).

All facets of the two points of error have been considered. Neither of the points presents reversible error, and both are overruled.

The judgment of the trial court is affirmed.

COUNTISS, J., not participating.

      . All articles cited are articles of the Texas Revised Civil Statutes.

      . Also coming within the legislative scheme is article 6243f. The disability language of section 10 in that article — viz., . .so permanently disabled . . so as to incapacitate him from the performance of his duties . .” — is strikingly similar to that of article 6243a § 9, and has been construed to mean that one totally disabled from performing the duties of a fireman is permanently disabled within the meaning of the act. Firemen and Policemen's Pension Fund v. Villareal, 438 S.W.2d 387, 390-91 (Tex.Civ.App.—San Antonio 1968, writ refd n. r. e.). Of similar effect is Board of Firemen’s Relief, etc. v. Marks, 237 S.W.2d 420, 423 (Tex.Civ.App.—Austin 1951), rev’d on other grounds, 150 Tex. 433, 242 S.W.2d 181 (1951), which interpreted article 6243e § 7, and Bryan v. Board of Trustees of Houston Fire, R. &. R. F., 497 S.W.2d 367 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ refd n. r. e.), which discusses section 7(c) of article 6243e before its repeal in 1975.

      . Although no specific statement was made by the trial court, either in its judgment or conclusions of law, that the decision of the Board must be set aside for lack of reasonable support in substantial evidence, the conclusion is necessarily implicit in the judgment rendered by the court.


author: OSBORN, Justice.

text:
    Evelyn BROCK, Appellant, v. Roy C. BROCK, Appellee.
    No. 6869.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 29, 1979.
    Rehearing Denied Sept. 26, 1979.

      Pat Priest, San Antonio, for appellant.
    Casseb, Leon, Rodgers, Strong & Pearl, Richard G. Strong, San Antonio, for appel-lee.
   OPINION

OSBORN, Justice.

This is a divorce case. The Appellant complains about the Court’s division of property and an order prohibiting removal of the parties’ minor daughter from the jurisdiction of the Court without a further hearing and order. We affirm.

The case was tried to the Court without a jury. After hearing evidence of substantial discord between the parties, the Court dissolved the marriage and granted Appellee a divorce on his counterclaim. The father was named managing conservator of the parties’ two boys, ages seventeen and thirteen, and the mother was named managing conservator of the parties’ four year old daughter, with support payments being required of the father.

The Court ordered the sale of the homestead in San Antonio, a house and lot and two unimproved lots at Cloudcroft, New Mexico, and three other unimproved lots in Texas. The sale was to be accomplished by a realtor who was appointed trustee to complete the sale. The proceeds were to be used to pay the expenses of such sales, the existing liens on the properties, community debts totaling $11,977.49 and the remaining proceeds divided 60% to the wife and 40% to the husband. The parties also had a substantial collection of art objects which were awarded 70% to the wife and 30% to the husband. Certain personal property was awarded to each party, and the husband was ordered to pay specified attorney fees incurred by the wife.

The Appellant’s first six points of error are as follows:

FIRST POINT
THE TRIAL COURT ERRED IN ORDERING THE PARTIES’ HOMESTEAD TO BE SOLD ALONG WITH THE BALANCE OF THEIR REAL PROPERTY FOR THE PURPOSE OF PAYING UNSECURED CREDITORS OF THE COMMUNITY ESTATE (Tr., 109; S.F., 15, elsewhere)
SECOND POINT
THE TRIAL COURT ERRED IN ORDERING REAL PROPERTY SITUATED IN NEW MEXICO SOLD, AND THEREBY PURPORTING TO HAVE A TEXAS DECREE OPERATE UPON FOREIGN REAL PROPERTY (Tr., 109) THIRD POINT
THE TRIAL COURT ERRED IN DETERMINING THAT CERTAIN REAL PROPERTY LOCATED IN NEW MEXICO WAS COMMUNITY PROPERTY, AS SUCH DETERMINATION SHOULD BE MADE UNDER THE LAW OF NEW MEXICO FOURTH POINT
THE TRIAL COURT ERRED IN DECLARING THE NEW MEXICO REAL PROPERTY TO BE COMMUNITY PROPERTY, AS THERE WAS NO EVIDENCE THAT THE COMMUNITY ESTATE HAD AN INTEREST THEREIN (Tr., 109; S.F., 188, elsewhere)
FIFTH POINT
THE TRIAL COURT ABUSED ITS DISCRETION IN DECLARING THE NEW MEXICO REAL PROPERTY TO BE COMMUNITY PROPERTY AS SUCH WAS AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE (Tr., 109; S.F., 188, elsewhere) SIXTH POINT
THE TRIAL COURT ERRED IN GRANTING TO APPELLEE AN INTEREST IN REAL PROPERTY WHICH WAS SHOWN BY THE EVIDENCE TO BE THE SEPARATE PROPERTY OF APPELLANT (Tr., 109; S.F., 188, elsewhere)

None of the issues as presented by these points were assigned as error in the Appellant’s motion for new trial. Prior to January 1,1978, it was not necessary to file a motion for new trial to preserve error for appeal in a non-jury-tried case. But since the amendment to Rule 324, Tex.R.Civ.P., it is “necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon.” If the complaint has not been made and ruled on during the trial of the case, the matter must be assigned as error in a motion for new trial or it is not preserved for review and such error is waived. Hausmann v. Texas Savings & Loan Association, 585 S.W.2d 796 (Tex.Civ.App.—El Paso, June 27, 1979).

In this case, there was no way to complain about the sale of the homestead and the use of the proceeds to pay debts until after judgment because, until the judgment of the Court was entered, the parties did not know a sale was to be required or what use was to be made of the proceeds of the sale. As to the New Mexico property, the only evidence presented was as to ownership, source of title and contentions as to whether it was community or separate property. No one could complain about a likely order of sale because no one knew until the entry of judgment that the Court would order the property sold. With regard to the “no evidence” point of error, that issue is usually raised in a jury trial by (1) a motion for instructed verdict; (2) objection to the submission to the jury of a vital fact issue; (3) motion for judgment notwithstanding the jury’s verdict; or (4) motion to disregard the jury’s answer to a vital fact issue. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 at 362 (1960). But, in a judge-tried case, the issue would normally be raised, if at all, by a motion for judgment at the conclusion of the evidence. No such motion was filed in this case.

Rule 324, as amended, specifically provides in a jury-tried ease that a complaint of “insufficient evidence” or “against the overwhelming preponderance of the evidence” may be made for the first time on appeal. The Rule does not so provide in non-jury cases. Thus, that issue, which can only be raised after judgment, must in a judge-tried case be assigned as error in a motion for new trial.

Since none of these issues were assigned as error in a motion for new trial, we conclude they have all been waived. Nevertheless, and because we are final in divorce cases, we have considered each of the points and find no error. With regard to the first point, we initially note that there is no question but that in a divorce proceeding where a homestead cannot be partitioned it is subject to sale and a division of the proceeds. Speer, Texas Family Law, Sec. 5:64 (5th ed. 1975). It is equally clear that the proceeds of the homestead may not be used for the purpose of paying unsecured creditors. Delaney v. Delaney, 562 S.W.2d 494 (Tex.Civ.App.—Houston [14th Dist.] 1978, writ dism’d); Klein v. Klein, 370 S.W.2d 769 (Tex.Civ.App.—Eastland 1963, no writ). When we consider the Court’s entire order ordering the sale not only of the homestead but all other real estate including three unimproved lots in Texas, two unimproved lots in New Mexico and one improved lot in New Mexico, the evidence reflects that those properties had more than sufficient value to pay all of the unsecured debts which the Court ordered paid out of the sale of the real estate proceeds. Thus, it was not necessary that any of the funds obtained from the sale of the homestead be used to pay unsecured creditors. Thus, point of error number one presents no error.

With regard to the second point, the law is clear that while a court cannot directly divest title to property in another state it may require parties over whom it has in personam jurisdiction to execute a conveyance to real estate located in another state. McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961); Hedley v. duPont, 558 S.W.2d 72 (Tex.Civ.App.—Houston [14th Dist.] 1977) rev’d on other grounds 570 S.W.2d 384 (Tex.1978) point reconsidered 580 S.W.2d 662 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ pending); Estabrook v. Wise, 506 S.W.2d 248 (Tex.Civ.App.—Tyler 1974) writ dism’d 519 S.W.2d 632 (Tex.1974). We conclude that the Court ordering the parties over whom it had in personam jurisdiction to execute a deed of New Mexico property to a Texas trustee was within the Court’s jurisdiction and the second point presents no reversible error.

The third point asserts that the determination as to the status of the New Mexico property should be determined under the law of New Mexico. There was no pleading and no proof of New Mexico law. It is well established that unless there is proof of another state’s law, or the court does take judicial notice of what the other state’s law is, the court will presume that it is the same as Texas law. Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458 (Tex.1969). The third point presents no error.

Points of error four through six complain of the trial Court’s determination that the New Mexico property was community property of the parties rather than the wife’s separate property. The dispute is with regard to the lot at Cloudcroft which had been improved and apparently had a value of approximately $45,000.00. The deed to this property is dated June 3, 1973, and is to “Roy C. Brock and Evelyn A. Brock;” thus, title was acquired in the names of both parties during the time of their marriage. This prima facie establishes that the property is community property. Mrs. Brock attempted to establish that the property had originally been purchased by funds which were her separate property. But, the testimony was not so direct, positive and uncontradicted as to establish the issue as a matter of law. Collora v. Navarro, 574 S.W.2d 65 (Tex.1978). For instance, Mrs. Brock testified that $5,000.00 of the down payment came as a gift to her from her father but the evidence established the deed in 1973 and the cheek from her father in 1977. The credibility of the witnesses was to be determined by the trier of the facts and in view of the presumption as to community property and the fact that all of the evidence came from interested parties, we find no error in the Court’s determination that the property was community property under both the “no evidence” and “great weight” tests. Points of error four through six present no error.

After having awarded the wife custody of the parties’ minor daughter, the Court entered an injunction prohibiting Mrs. Brock from taking the child out of the state of Texas without the written permission of the Court and with notice to the father of the child. Points of error seven and eight complain of this order of the Court, and these points were properly assigned in the motion for new trial. The evidence established some reluctance upon the part of the Appellant to follow other orders issued by the Court. She refused to sign the deed to the homestead without a lengthy contempt hearing. She had refused to let her husband have visitation with the minor daughter on occasions. A district court has power to provide that the residence of a child shall not be removed from a county without court order. Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961). Without reciting all of the evidence in the case which developed a substantial conflict in the personalities of these two parties and recognizing the desire of the Court to see that his order as to visitation rights was enforced, we conclude that there was no abuse of discretion in the issuance of the injunction. We have no doubt that upon valid request and with reasonable limitations the Court will permit the mother to remove the child from the state when a necessity exists. Points of error seven and eight are overruled.

The judgment of the trial Court is affirmed.


author: McDONALD, Chief Justice.

text:
    Robert C. AUSTIN and Andra Bibb, Independent Executors and Trustees of the Estate of Andrew Jack Day, Jr., Deceased, Appellants, v. Don BICE, et ux, Appellees.
    No. 6092.
    Court of Civil Appeals of Texas, Waco.
    Aug. 30, 1979.
    Rehearing Denied Oct. 4, 1979.

      Edmund R. Wood, Richard F. Martin, Chancellor & Wood, Dallas, for appellants.
    Kent D. Kibbie, Jay S. Garrett, Charles Florsheim, Law, Snakard, Brown & Gam-bill, Fort Worth, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Austin and Bibb, Independent Executors and Trustees of the Estate of Andrew Jack Day, Jr., Deceased, from judgment against them in their representative capacities for $60,568. on notes made or assumed by Day as consideration for purchase of land from plaintiffs.

Plaintiffs Bice sued defendants Austin and Bibb, Independent Executors of the Estate of Andrew Jack Day, Jr., alleging that on March 14, 1975 plaintiffs conveyed 382.85 acres in Bosque County to Andrew Jack Day, Jr.; and delivered a General Warranty Deed to Day to such land; that such deed was recorded on March 18, 1975; that as a part of the consideration for the conveyance Day executed and delivered to plaintiffs his promissory note for $182,-360.75, bearing interest at 8%, and payable in semiannual installments, and secured by Deed of Trust upon the property; that as further consideration Day assumed payment of the remaining $15,000. due on a note dated January 4, 1966 bearing 5% interest executed by A. C. Lewis and payable to J. R. Echols (and assumed by plaintiffs) and secured by Deed of Trust lien on the property; and as further consideration Day assumed payment of a $12,788. note dated July 8, 1969 bearing 6½% interest executed by plaintiffs and payable to A. C. Lewis, and secured by Deed of Trust lien on the property; that Day made all principal and interest payments due on the above notes from March 14, 1975 until his death on January 1, 1977; that after Day’s death defendants made no payments on the three notes; that plaintiffs accelerated the maturity of the $182,360. note and caused trustee’s sale to be made of the property; that plaintiffs bought in the property at the trustee’s sale on June 7, 1977 for $150,000. applying such on Day’s note.

Plaintiffs sought judgment for the deficiency on the $182,360.; plus balances due on the two notes assumed.

Trial was to the court which rendered judgment for plaintiffs for: 1) $12,000. unpaid principal on the Lewis to Echols note assumed by Day; 2) $12,778. unpaid principal on the Bice to Lewis note assumed by Day; 3) $27,360. unpaid principal on the $182,360. Day to Bice note; and $8,430. attorneys’ fees. (Totalling $60,568.).

Defendants’ Executors appeal on 12 points.

Points 1 through 7 challenge the validity and measure of damages awarded on the two assumed notes.

Defendants assert the deed to the 382.85 acres was never delivered to Day or accepted by him; that the trial court erred in finding that the Echols and Lewis notes were secured by the 382.85 acres; and further erred in awarding judgment on the Lewis note for $12,000., and for $12,778. on the Echols note.

The deed to the 382.85 acres from the Bices to Day recited that Day “assumes and promises to pay * * * all principal and interest now remaining unpaid” on the Echols note (describing same in detail); and further that Day “assumes and promises to pay * * * all principal and interest now remaining unpaid” on the Lewis note (describing same in detail). The evidence is that such deed was executed by plaintiffs in the law office of Honorable Floyd R. Wilson in Meridian, Texas, and in the presence of Wilson and Day; that a Deed of Trust was also executed naming Wilson as trustee; that following execution plaintiffs and Day delivered the documents to Wilson who filed them in the deed records of Bosque County; that Day thereafter made all payments on the Echols and Lewis notes when said payments were due for some two years and up to the date of his death in January 1977; that both the Echols and Lewis notes were set up on Day’s books; that such books reflect Day’s payments on the notes to plaintiffs; that after Day’s death the 382.85 acres were reported as an asset of his estate on the Inventory filed by the estate and the two assumed notes were reported as liabilities of the estate; that the original deed is in the possession of defendants; and that Day paid taxes on the 382 acres from March 14,1975 until his death. The defendants have refused to make any payment on any of the three notes and totally repudiated the debt and assumption contract.

Filing of the deed for record creates a presumption of delivery to and acceptance by Day of the deed. McAnally v. Texas Co., 124 Tex. 196, 76 S.W.2d 997; Hunter v. Meshack, Tex.Civ.App. (Tyler) NRE, 471 S.W.2d 155; and the payments on the notes assumed or executed creates a presumption of delivery to and acceptance by Day of the deed. Bibby v. Bibby, Tex.Civ.App. (El Paso) Er. Dism’d 114 S.W.2d 284.

And there is no evidence that the deed was not delivered to and accepted by Day.

There is evidence that the Echols and Lewis notes were secured by the 382.85 acres.

The record is clear that defendants committed an anticipatory breach of Day’s assumption agreement by failure to pay on any of the notes, and their declaration of intent in unconditional terms not to pay on such notes as they matured in the future. Preston v. Love, Tex.Civ.App. (Austin) NWH, 240 S.W.2d 486; Kilgore v. Northwest Texas Baptist Educational Soc., Tex. Sup., 37 S.W. 598.

Once a contract is totally repudiated, action is maintainable in one suit for the entire breach and judgment may be had for the present value of all damages plaintiff would have received if the contract had been performed; and plaintiff is not compelled to resort to repeated suits to recover periodic payments. Pollack v. Pollack, Tex. Com.App., 39 S.W.2d 853; American Founders Life Insurance Co. v. Wehling, Tex.Civ.App. (Austin) NWH, 561 S.W.2d 911; Continental Casualty Co. v. Boerger, Tex.Civ.App. (Waco) Er. Dism’d, 389 S.W.2d 566.

Points 1 through 7 are overruled.

Points 8 through 10 assert the trial court erred in finding plaintiffs made no demand for interest in excess of 10% on the note executed by Day on March 14, 1975, and erred in finding there was no demand for usurious interest.

After Day’s death and after defendants refused to make payments on the three notes, plaintiffs accelerated the notes, and caused the trustee under the Deed of Trust to sell the 382.85 acres to satisfy the $182,-360.75 note; bought in the property for $150,000; then on September 13,1977 plaintiffs’ counsel wrote a letter to defendants reciting that they represented plaintiffs, that plaintiffs had purchased the property at trustee’s sale for $150,000. and that “after applying the proceeds of such sale, i. e.. $150,000. against the amounts owing pursuant to the note and deed of trust, a balance of $112,425.02 remains due and payable. If such amount is not received in this office within 10 days * * * I have been instructed [to sue].”

After receipt of such letter by defendants, counsel for defendants telephoned counsel for plaintiffs to clarify the letter and counsel for plaintiffs responded with a detailed breakdown which reflected that the $112,425.02 figure was for 1) The Echols note computed to be $12,852.56; 2) The Lewis note computed to be 12,778.; 3) The Day note computed to be $203,544.46; 4) A claim for property removed from the ranch valued at $33,250.; adding up to $262,-425.02, less the $150,000. bid at the trustee’s sale equalling $112,425. The $203,544.46 asserted to be due on the Day note was further explained to represent $182,360.75 principal plus $11,491.22 interest, and a $9,692.59 trustee’s fee.

The ambiguity in counsel’s letter of September 13,1977 was determined by the trial judge to be explained in a manner precluding the charge of usurious interest, and the evidence is ample to support such findings.

Points 8 thru 10 are overruled.

Points 11 and 12 contend the trial court erred in awarding plaintiffs’ attorneys’ fees of $8,430.

At the trial it was stipulated and agreed that certain sums of money determined by the time spent by counsel multiplied by an agreed hourly rate would be recoverable as attorneys’ fees upon finding by the trial court that one party or the other was entitled to recover attorneys’ fees.

The plaintiffs won principal recovery upon the note signed by Day which provided for recovery of reasonable attorneys’ fees.

■ The trial court found that plaintiffs were entitled to recover reasonable attorneys’ fees in the amount of $8,430. for the time expended by plaintiffs’ attorneys.

The trial court correctly awarded $8,430. as reasonable attorneys’ fees based upon the stipulation of the parties and the express terms of the note. Kuper v. Schmidt, Tex.Sup., 338 S.W.2d 948; Southland Capital Corp. v. Clark, Tex.Civ.App. (Waco) NRE, 526 S.W.2d 278.

Plaintiffs’ cross point complaining the trial court erred in failing to render judgment for them for prejudgment interest on the Day note has been considered and is overruled.

AFFIRMED.


author: O’QUINN, Justice.

text:
    RAILROAD COMMISSION OF TEXAS, Appellant, v. R. J. PALMER, Appellee.
    No. 12988.
    Court of Civil Appeals of Texas, Austin.
    Sept. 5, 1979.

      Mark White, Atty. Gen., Ralph T. Aldave, Asst. Atty. Gen., Austin, for appellant.
    Dan Moody, Jr., Graves, Dougherty, Hearon, Moody & Garwood, Austin, for ap-pellee.
   O’QUINN, Justice.

From judgment of the district court setting aside an order of the Railroad Commission directing R. J. Palmer to plug a certain oil well, the Commission appeals on the single point that the trial court erred in ruling that findings of fact made by the Commission were insufficient to support the order.

Appellee Palmer replies by five counterpoints, the final four of which are directed to substantial evidence questions. The trial court based its judgment solely on its determination that the findings of fact were not sufficient to support the order. We will affirm the judgment of the trial court and therefore will not reach appellee’s final counterpoints.

Although the parties are not entirely in agreement on the history of the well, for disposition of. this appeal the brief facts now stated appear without dispute. The oil well, located in a field in Winkler and Ward Counties, was drilled in 1962, with George 0. Shettle and W. M. Conner owning the working interest and Palmer holding an overriding royalty interest. After about sixteen months of operation, the well was plugged in August of 1963, at which time Shettle was the operator. Thereafter, the Commission contends, Palmer as an operator attempted to re-enter the well in September of 1963, which Palmer denies.

More than twelve years later, sometime early in 1976, the Commission claims the well was found open and leaking a small amount of salt water. Thereafter the Commission instituted proceedings to require Palmer to plug the well under provisions -of Article 6005, V.A.T.S., now Chapter 89, Texas Natural Resources Code (effective September 1, 1977).

Hearings were held in May and in November of 1976. The Commission found, under its finding No. 3, that the well was properly plugged in August of 1963, following the entry in March of 1962. By findings Nos. 1 and 2, the Commission found that Palmer received authority to re-enter the well, after it had been plugged in August of 1963, and that no completion reports were made. In findings Nos. 4 and 5 the Commission found that the well is open and leaking salt water, and that the leaking threatens fresh water sources in the area.

Upon these findings the Commission concluded that the well was subject to the statute, Chapter 89 of the Code, providing for plugging wells, and that Palmer was the operator and responsible for plugging the well.

The findings of fact under examination do not appear in the Commission’s order, made January 24, 1977, directing Palmer to plug the well, and although the Commission adopted the examiner’s report, in which the findings were set out, neither the findings nor the conclusions were stated by the Commission in its order. Section 16(b) of Article 6252-13a (Texas Administrative Procedure Act) expressly requires that “A final decision must include findings of fact and conclusions of law, separately stated.” Palmer admits that the defect in the order was not asserted in the trial court, and we must assume waiver was intended.

As they appear in the examiner’s report, the findings of fact are restated here in full:

“FINDINGS OF FACT
1. Authority to re-enter the subject well was issued to R. J. Palmer.
2. No completion reports of the re-entry were made.
3. The well was plugged in accordance with Commission regulations when drilled on the re-entry permit to Shet-tle and Palmer.
4. The well is opened at the present time and leaking salt water.
5. The leaking well constitutes a threat to fresh water sources in the area, either above or below ground.”

The trial court entered judgment on November 2, 1978, setting aside the Commission order of January, 1977, and permanently enjoined the Commission from enforcing the order against Palmer. The court remanded the proceeding to the Commission for further action, consistent with the judgment, “including such further hearing as may be appropriate.” The court then directed that further decision of the Commission, after additional proceedings, include findings on matters then stated in the court’s opinion.

The trial court directed that findings “on the following matters” be included:

“1. As the Railroad Commission has made a finding that the well in question was plugged properly before the time and events on which the Order of January 24, 1977, adverse to Plaintiff was based, the Commission should determine whether any subsequent re-entry activity caused the well to need replugging; and a finding on this issue should be included in the Commission’s decision.
* “2. If re-entry activity which occurred after the Shettle-Palmer proper plugging did cause the well to need replugging, the Commission should determine whether or not the well was plugged properly after such re-entry activity; and a finding on this issue should be included in the Commission’s decision.
“3. If the well was plugged properly after such re-entry activity, the Commission should determine whether the well needs replugging now.
“4. The Commission should determine the time at which the last operation or re-entry activity was abandoned 'and should determine whether or not Plaintiff was at such time a person who was responsible for the physical operation and control of the well; and findings on these issues should be included in the Commission’s decision.
“5. The Commission should again include in its decision a finding or findings as to whether the well is causing or is likely to cause pollution of fresh water above or below the ground.”

In behalf of the Commission it is contended on appeal that the findings of the Commission are sufficient to inform Palmer “. . .of the reasons for the Commission’s decision ordering him to plug the well.” In support of the contention it is argued that the findings “. . . show that the Commission believed that the Ap-pellee had [1] attempted to reenter the well, [2] destroyed the plug in the process, and [3] abandoned the well without replugging it.” This argument gives particular emphasis to the failure of the findings to meet the test of sufficiency. None of the three facts argued as the basis for, and the reasoning behind, the Commission’s order is stated in the findings of fact.

In making findings of fact, the Commission must arrive at the basic facts which must be present to justify application or enforcement of a statute, in this case the statute requiring that a party plug an oil well. As pointed out by the Supreme Court in 1973, “So a fact finding requirement has substantial statutory purpose and is more than a technical prerequisite.” Morgan Drive Away, Inc. v. Railroad Commission, 498 S.W.2d 147, 150 (Tex.Sup.1973).

Earlier the Supreme Court carefully explained the purpose of a statute requiring findings of fact of the Railroad Commission. In brief, the Court stated that one purpose was to restrain any disposition on the part of the Commission to enter its order “without a full consideration of the evidence and a serious appraisal of the facts”; another purpose, to inform persons opposing the order of the facts found, “so that they may intelligently prepare and present an appeal to the courts”; and a final purpose “is to assist the courts in properly exercising their function of reviewing the order.” Miller v. Railroad Commission, 363 S.W.2d 244, 245-6 (Tex.Sup.1962).

More recently, the Supreme Court, citing Miller, stated, “The findings should be such that a court, on reading them, could fairly and reasonably say that they support the ultimate findings of fact required for its decision.” Railroad Commission v. Graford Oil Corporation, 557 S.W.2d 946, 950 (Tex.Sup.1977). The Supreme Court has compared findings of fact to answers of a trial judge or a jury to controlling fact issues in a case. In Imperial American Resources Fund, Inc. v. Railroad Commission, 557 S.W.2d 280, 286 (Tex.Sup.1977), the Court observed, “While some of the findings might be more artfully worded, they are substantially as would be expected from a trial judge or a jury in answer to controlling rather than incidental fact issues.” (Emphasis added)

After careful consideration of the record, we reach the conclusion that the findings of fact fail to include three essential facts pointed but on appeal by the Commission as matters Palmer ought to know from the Commission’s order. Palmer, as a party to this action, obviously would be in a better position to surmise or guess why the Commission acted as it did, but the essential test is what do the findings of fact tell a court in properly exercising its function of reviewing the order?

The reviewing court is not informed, for example, upon reading the findings of fact, whether the Commission found as a fact that Palmer re-entered the well, destroyed the plug in the process, and then abandoned the well without replugging it. Without these findings, essential to holding Palmer responsible under the statute, the order cannot stand.

Having reached this conclusion we find it unnecessary to enter into further discussion of matters already pointed out by the trial court in its findings stated in the judgment. Nor do we reach the final points raised on appeal by Palmer as to whether the order was supported by substantial evidence.

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


author: PHILLIPS, Justice. SHANNON, Justice,

text:
    Victor Leon AUSTIN, Appellant, v. Mildred E. AUSTIN, Appellee.
    No. 12990.
    Court of Civil Appeals of Texas, Austin.
    Sept. 5, 1979.
    Rehearing Denied Oct. 3, 1979.

      Harriet Samon Owen, Austin, for appellant.
    Terry L. Belt, Nobles, George & Belt, Austin, for appellee.
   PHILLIPS, Justice.

Appellee filed suit for divorce. Trial on the merits was before the court; however, as appellee was seriously ill, she did not appear at the trial. Her deposition had not been taken, nor were there any interrogatories nor requests for admissions.

The Honorable Jack Miller presided at the trial, and at the conclusion of the evidence and argument of counsel, announced in open court the manner in which the property was to be divided. The statement of facts does not show that the court orally stated “divorce granted”; however, the court’s docket sheet reveals that divorce was “granted as prayed for.”

Appellee died before a written decree could be entered and pursuant to appellant’s plea in abatement, the trial court dismissed the suit.

Appellee’s heirs then perfected an appeal before the Eastland Court of Civil Appeals, which found that the parties owned substantial property and that the trial court had “very carefully” announced its decision regarding the division of property. The court said: “We find nothing in the statement of facts showing that the court orally announced it was granting Mildred Austin a divorce, however, we think in view of the detailed property division and the docket entry, the court ‘rendered’ its decision. . ” The Eastland Court further held that the cause did not abate upon the death of appellee and that the trial court continued to have jurisdiction over the controversy. The case was reversed and remanded with instructions to the trial court to either grant the divorce and divide the property or deny the divorce. Austin v. Austin, 553 S.W.2d 9 (Tex.Civ.App.1977, writ dism’d w. o. j.).

The case was remanded to Judge D. V. Hammond’s court, as Judge Miller had retired during the appeal. In response to the Eastland Court’s mandate, Judge Hammond ordered a hearing and granted the divorce and divided the property. It is from this judgment that appellant has perfected this appeal to this Court.

Appellant is before this Court on thirteen points of error. Inasmuch as we agree with the “no evidence” point we need not pass upon the others. We reverse the judgment of the trial court and herein render judgment that the divorce be denied.

Appellant complains that the trial court abused its discretion in granting the divorce because there was no evidence of the statutory grounds for divorce. The only evidence of the grounds for divorce is an alleged stipulation offered by appellee’s attorney:

“MR. BELT: Your Honor, one of the items that we have got some stipulations, that I think that we need to discuss. We have agreed that were the Petitioner, Mildred Austin, here that she would testify certain things. Her testimony would have been, and Counsel for the Respondent has agreed, that her name is as stated in the Petition, Mildred E. Austin; that she was married to the Respondent, Victor Leon Austin, on or about June 15th, 1958; that she separated from Victor Leon Austin on or about October 15th, 1975; that she had lived in Burnet County for ninety days preceding the filing of the divorce; that she was a domicilliary [sic ] of the State of Texas for six months prior to the filing of the divorce; no children were born of the marriage or adopted or expected of the marriage; and that the marriage has become insupportable due to discord and conflict of personality; that there is no hope of reconciliation. Had she been here she would have testified to that, and we appreciate the Respondent’s attorney agreeing to that stipulation.
THE COURT: Well, I would just like to swear the Respondent and have him affirm that and state that those things are true that you want to stipulate. He heard the stipulation.
MR. RUSSELL: I think, Your Honor, too, more likely you want to call him.
MR. BELT: My next step was to put him on the stand.
MR. RUSSELL: I do want to state in respect to it, we may have a discrepancy in the date of the marriage. I am sure he’ll bring it out in the testimony, but I think we overlooked that.
MR. BELT: I would like to call Leon Austin to the stand.
Questions by Mr. Belt:
Q. Mr. Austin, please state your name to the Court.
A. Victor Leon Austin.
Q. And are you Respondent in this cause of action for divorce filed by Mildred E. Austin?
A. Yes, sir.
Q. It is stipulated, as you heard me introduce to the Court, that you were married to Mrs. Austin and I stated a date of on or about June of 1958. Is that date correct or incorrect?
A. That’s wrong.
Q. What date were you all married? A. June, 1959.
Q. June, 1959?
A. Un-huh.
Q. Do you know that she did live in Burnet County for ninety days prior to filing this divorce?
A. Oh, yeah.
Q. And certain had been a domiciliary of the State of Texas for the last six months?
A. Yes.
Q. You agree that your marriage has become unsupportable due to discord and conflict of personalities?
A. According to her testimony, yes, sir.
Q. Is there any hope of reconciliation?
A. It’s up to her.
Q. As far as you know, is there any hope?
A. Not as I can see, unless she changed her mind.
Q. No children were born?
A. No.
Q. You have not adopted any?
A. No.
Q. There is none expected?
A. No.
Q. Okay. In Chambers we went through a stipulation. You and your wife owned a certain amount of property, is that correct?
A. Yes, sir.”

There is little doubt that counsel for ap-pellee has attempted to enter into evidence a stipulation regarding certain facts pertinent to the status of the parties to which appellee allegedly would have testified had she been present. We are mindful of the fact that a stipulation to what the testimony of an absent witness would be has been held proper in Texas. Reasoner v. State, 463 S.W.2d 55 (Tex.Civ.App.1971, writ ref’d n. r. e.). However, here we are faced with the highly unusual situation where the ap-pellee did not appear to testify to the statutory grounds for divorce. Instead, her counsel attempted to enter into the record certain stipulated facts regarding the status of the parties. As discussed below, we find that the record evidences that appellant did not unequivocally stipulate to the statutory grounds for divorce, and that the stipulated facts do not support the divorce.

Section 3.01 of the Texas Family Code provides for the statutory grounds for divorce based upon insupportability:

“On the petition of either party to a marriage, a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.”

In Clay v. Clay, 550 S.W.2d 730 (Tex.Civ.App.1977, no writ), the court stated that the issue to be determined (under Section 3.01 above) is whether the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. In Cusack v. Cusack, 491 S.W.2d 714 (Tex.Civ.App.1973, writ dism’d), the court stated that when insupportability is relied on as a ground for divorce, if that ground is established by the evidence, a divorce must be granted.

It is our burden to decide, based upon the unusual fact that the appellee was absent from court and that the stipulation was less than unequivocally agreed to by appellant, whether the stipulation constituted satisfactory evidence upon which to support the divorce.

We first take note that it was quite evident that the trial judge was uneasy with the stipulation and asked that appellant be sworn in “and have him affirm that and state that those things are true that you want to stipulate . . . ” even though counsel for appellee requested only that appellant’s counsel so stipulate. Although an attorney is authorized to stipulate concerning any facts to be established by evidence, Richmond v. Sangster, 217 S.W. 723 (Tex.Civ.App.1920, writ ref’d), and although the silence on the part of appellant’s attorney ordinarily would constitute an acceptance of the appellee’s anticipated testimony, we hold that the trial judge himself took the matter out of appellant’s attorney’s hands by directing the appellant himself to the stand to state whether or not he agreed with the stipulation. Once on the stand, appellant’s answers to the questions pertinent to the grounds for divorce were equivocal. Not once does the record show that appellant agreed that appellee would have testified as her counsel stated into the record. Instead, the questions by appellee’s counsel were directed towards appellant’s own feelings, which were immaterial to the issue whether appellant stipulated to appellee’s testimony.

Although stipulations are accepted as evidence, a contradictory and confusing stipulation should be disregarded by a court if it stands in the way of a true determination of the rights of the parties. Sergeant v. Goldsmith Dry Goods Company, 110 Tex. 482, 221 S.W. 259 (Tex.1920). A court will not construe a stipulation so as to effect an admission of something intended to be controverted. United States Fire Insurance Company v. Carter, 468 S.W.2d 151 (Tex.Civ.App.1971), writ ref’d n. r. e., per curiam, 473 S.W.2d 2 (Tex.1971). According to the record, we find that appellant never did stipulate as to his wife’s expected testimony. His answers reflected that he was not at all certain of her state of mind at the time of trial. We are not holding that in divorce cases we will give no effect to stipulations. Rather, in the case of an absent petitioner, we are holding that to protect both parties and to avoid ambiguity and confusion we are requiring an unequivocal stipulation of the grounds for divorce.

Since the stipulation does not meet the requirements of the law, it cannot constitute probative evidence of the grounds for divorce. We are persuaded that in order to satisfy § 3.01 of the Family Code the petitioner must either personally testify to facts constituting the statutory grounds, or, in the case of a stipulation, that the parties unequivocally agree to what the petitioner would have testified had she been present. Cusack v. Cusack, supra.

We hold that under the facts of this case the trial court abused its discretion in granting the divorce, and herewith render judgment that divorce be denied.

SHANNON, Justice,

dissenting.

I dissent.

Appellant’s point two is that the judgment of divorce is supported by no evidence. There is no point attacking the factual sufficiency of the evidence to support the divorce judgment. The majority reverses the judgment in response to the “no evidence” point. In considering a “no evidence” point, the reviewing court must reject all evidence contrary to the judgment and consider only the facts and circumstances which tend to support that judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).

As petitioner in the district court, it was Mrs. Austin’s burden to establish grounds for divorce. She discharged that burden by obtaining a stipulation of facts.

As set out in the majority’s opinion, counsel for the parties stipulated in open court and of record as to what the testimony of Mrs. Austin would have been, had she been present. Tex.R.Civ.P. 11 (1979). A stipulation to what the testimony of an absent witness would be, has been held proper in this state since 1853. Lee v. Wharton, 11 Tex. 61 (1853); Miers v. Housing Authority of City of Dallas, 266 S.W.2d 487 (Tex.Civ.App.1954, no writ); Stell v. State, 496 S.W.2d 623 (Tex.Cr.App.1973). Such a stipulation is in the nature of a judicial admission and is binding on the parties to the stipulation. Reasoner v. State, 463 S.W.2d 55 (Tex.Civ.App.1971, writ ref’d n. r. e.). The stipulation, as a formal judicial admission, dispenses with the necessity for proof. II McCormick & Ray, Texas Law of Evidence, § 1127 (2d ed. 1956).

Viewing the evidence most favorably to the judgment, Renfro Drug Co. v. Lewis, supra, it is obvious that the stipulation established the grounds for divorce. The stipulation, as a formal judicial admission, dispensed with the necessity for Mrs. Austin’s production of evidence in support of her grounds for divorce. In brief, the stipulation was a complete substitute for proof in support of the divorce.

To avoid what it regards as a wrong result in this particular case, the majority has held that the stipulation should be given no effect in law. Were the stipulation given no effect, then indeed there would be no evidence in support of the divorce judgment.

Appellant was represented at trial by counsel and he, through counsel, entered the stipulation. So long as the attorney-client relationship endures, with its corresponding legal effect of principal and agent, the acts of the attorney must necessarily bind the client. Dow Chemical Company v. Benton, 163 Tex. 477, 357 S.W.2d 565 (1962). There is no suggestion in this record that appellant’s counsel was not authorized to stipulate the grounds for divorce. Accordingly, authority must be presumed. Dunman v. Hartwell, 9 Tex. 495 (1853).

Every trial attorney is familiar with the practice of eliminating by stipulation undisputed questions of fact during the course of a trial. Such stipulations are viewed favorably by the courts. Porter v. Holt, 73 Tex. 447, 11 S.W. 494 (1889). Orderly administration of justice requires that trial courts observe stipulations made in open court and recorded in the statement of facts. Sone v. Braunig, 469 S.W.2d 605 (Tex.Civ.App.1971, writ ref’d n. r. e.). Likewise, appellate courts are bound to recognize and honor subsisting stipulations. New v. First National Bank of Midland, 476 S.W.2d 121 (Tex.Civ.App.1971, writ ref’d n. r. e.).

The trial court, for cause and in the exercise of sound discretion, may set aside a stipulation when such action may be taken without prejudice to either party. A stipulation should not be set aside at the instance of either party, when the party invoking such action has obtained an advantage under it, or when the withdrawal of the stipulation will place the opposite party in a worse position than if the stipulation had never been made. Porter v. Holt, supra.

That the district court in this case indicated to counsel that it wished to hear from appellant respecting the stipulation does not demonstrate, as speculated by the majority, “. . . that the trial judge was uneasy with the stipulation . . . ” Instead, the district court in making the request of counsel was following a practice long familiar to the bench and bar. In addition, the statement of facts shows that appellee’s counsel had planned to call appellant before the court made the request of counsel.

Appellant, when called to testify, corrected the stipulation in only one respect, that being the date of the party’s marriage. None of appellant’s other responses conflicted with or contradicted the stipulation.

The law allows the trial court, upon proper showing, to set aside a stipulation when such action may be taken without prejudice to either party. Porter v. Holt, supra. Because there was no motion by appellant or by the court sua sponte to set aside the stipulation, it is hardly necessary to observe that there was no proof to have supported the motion, had one been filed. The significant fact in this regard, however, is that the district court did not order the stipulation set aside. The request of the district court to hear from appellant respecting the stipulation cannot be transformed by the majority’s fancy into an order by the court setting aside counsels’ stipulation. Because the district court did not order the stipulation withdrawn, it stands subsisting and unchallenged. As such, it is obligatory for this Court to recognize the stipulation as a complete substitute for proof in support of the partys’ divorce and, accordingly, to overrule the “no evidence” point.

The “no evidence” point should be overruled for still another reason. Appellant’s challenge to the efficacy of the stipulation must have been asserted first in district court by motion or objection. Had the district court sustained the objection or motion to withdraw the stipulation, appellee would have had an opportunity to prove up grounds for divorce in a different manner. As it were, appellee learned of appellant’s challenge to the stipulation for the first time three years after trial when appellant filed his brief in this Court. By not moving to withdraw the stipulation in district court, appellant waived any complaint with respect to the stipulation.

      . Gunther v. Gunther, 297 S.W.2d 725 (Tex.Civ.App.1957, no writ).


text:
    Joan CARSON, Appellant, v. INDUSTRIAL UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 6017.
    Court of Civil Appeals of Texas, Waco.
    Sept. 6, 1979.
    Rehearing Denied Oct. 4, 1979.
    Phillip A. Pfeifer, Fisher, Roch & Gallagher, Houston, for appellant.
    Mike Phillips and Susan Crowley, Boswell, O’Toole, Davis & Pickering, Houston, for appellee.
    P. J. Murphey Harmon, Hutcheson & Grundy, Houston, for intervenor.
   OPINION

McDONALD, Chief Justice.

This is a workmen’s compensation case. Joan Carson was an employee of Congregation Emanu El and Industrial Underwriters was the insurance carrier. Plaintiff Carson alleged she sustained an injury within the course and scope of her employment on March 24, 1974. Trial was to a jury.

The jury in answer to Issue 1), failed to find that plaintiff Carson was injured on or about March 24, 1974. Issue 2 was submitted conditional upon an affirmative finding to Issue 1. The jury, however, disregarded the court’s instructions, and answered Issue 2), failing to find that plaintiff Carson was injured in the course of her employment for Congregation Emanu El.

The trial court rendered judgment plaintiff take nothing (and set aside a prior award by the Industrial Accident Board for plaintiff).

Plaintiff appeals on 3 points. Point 1) asserts:

The jury’s failure to find that Joan Carson received an injury on or about March 24, 1974, is so against the great weight and preponderance of the evidence as to be manifestly unjust.

Joan Carson is a 45 year old married woman; is a certified religious school teacher in the Jewish faith; and for two years prior to March 24, 1974 worked five days a week at the Jewish Community Center teaching four to five year olds; and worked one day a week at Congregation Emanu El teaching religious school to four and five year old children. Her job at both places required her to physically participate in all the activities of instructing young children including running, crawling, lifting, bending, carrying and swimming. She was physically able to do all these things before March 24, 1974.

In the early 1960’s Mrs. Carson fractured her coccyx but recovered from this injury with no problems. She had no prior injury to her low back affected by the accident on March 24, 1974. She had surgery for a bladder obstruction in the early 1960’s and later surgery for appendicitis, removal of ovarian cysts, tubulos pregnancy, hysterectomy and breast tumor. There was no testimony any of these conditions contributed in any way to her back problems. Plaintiff, and two other witnesses testified she was physically able to do and did the active job of teaching young children before March 24, 1974.

On March 23, 1974 plaintiff purchased supplies needed to construct “Passover Plates” for the children. The next morning she prepared the materials and placed them in a large grocery bag, which she described as “very cumbersome”, behind the driver’s seat of her two-door automobile; drove to the parking lot at Congregation Emanu El; arrived at about 9 AM; parked; released her seat belt; and “took my left hand and opened up the door to the car, and in one twisting motion reached around and in back of the seat, and grabbed the bag with both of my hands, and I pulled it, and as I pulled it up it stuck because it was so full. So I gave it a big pull, and it came out. I stood up, out of the car, and immediately I said ‘oh, my back’, and I felt this very sharp pain down my back, into my leg”. The pain was very severé; she reported her back injury to Mrs. Kaplan, the principal; and also told her student assistant of her injury. Mrs. Burkom, plaintiff’s supervisor, testified plaintiff told her “that she had in reaching to bring her supplies out of her car into her classroom, as she got out, injured her back”, and that she observed plaintiff was permitting her assistant to do the direct teaching on March 24th.

Plaintiff testified her pain intensified, and on the following day March 25,1974 she went to Dr. Glassman, an orthopedic surgeon. Dr. Glassman testified plaintiff described her accident: “[she] was getting out of a car and twisted as she was trying to get out, and had immediate pain radiating into her left hip and leg”. Dr. Glassman examined her and testified “she was obviously in pain and distress”; and diagnosed her condition as a “herniated nucleus pulpo-sus, lumbosacral spine”. She continued to worsen and was hospitalized from June 6 to June 25, 1974; but the pain increased and she was readmitted to the hospital on July 16, 1974, and Dr. Glassman performed a lumbar laminectomy at two levels, removed the disc L5-S1 and decompressed the nerve at one space higher. Dr. Glassman testified the surgery was made necessary by the incident bn March 24, 1974 in plaintiff’s getting out of the car. Plaintiff’s pain did not abate and she was again hospitalized in February 1975; and again in May 1976 when the disc at L4-L5 was removed, the nerve roots decompressed, and another lam-inectomy and low back fusion performed. At time of trial she was unable to do housework or perform any of her former activities as a teacher at either the Jewish Community Center or Congregation Emanu El.

It is undisputed plaintiff was carrying all of her teaching duties without manifestation of pain or complaint, prior to March 24, 1974; that she testified she injured her back by twisting when unloading school supplies and getting out of her car on March 24, 1974; that she reported the accident to her supervisor and principal that morning; that her supervisor observed her not teaching but allowing her assistant to teach in her place and she said her back hurt too bad because of her accident to teach; that the next day she went to the Doctor; told him her pain was caused by twisting while getting out of her car. She got no better with conservative treatment; had a back operation in July 1974; still got no better, and later had a second back operation; and at date of trial could not perform household or teaching work. And there is no evidence plaintiff did not receive an injury at the time and in the manner she described.

Prom the record as a whole we think the jury’s answer to Issue 1 contrary to the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Mackey v. Gulf Ins. Co., Tex.Civ.App. (Amarillo) NWH, 443 S.W.2d 911; Thomas v. International Ins. Co., Tex. Civ.App. (Waco) NWH, 507 S.W.2d 286; Thomas v. International Ins. Co., Tex.Civ.App. (Waco) 527 S.W.2d 813; Coty v. Home Indemnity Co., Tex.Civ.App. (Waco) NWH, 494 S.W.2d 645; Macias v. Texas Employers’ Ins. Assn., Tex.Civ.App. (Waco) NRE, 546 S.W.2d 359.

Plaintiff’s Point 3 asserts the jury’s failure to find Joan Carson was injured in the course of her employment is so against the great weight and preponderance of the evidence as to be manifestly unjust.

Defendant by cross point asserts the trial court erred in denying its motion for instructed verdict because there was no evidence to support the submission of Special Issue 2 regarding course and scope of employment.

The trial court instructed the jury that “injury in the course of employment means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon employer’s premises or elsewhere. An injury occurring while travelling to or from work is not in the course of employment unless the employee is performing a service in furtherance of the employer’s business with the express or implied approval of the employer”.

Plaintiff testified the Congregation did not have the special supplies needed to construct the “Passover Plates” she intended to make during her class on March 24, 1974; that the supervisors of the school expected the teachers to obtain their materials on their own and bring them to school; that she shopped and obtained the necessary materials; worked on them at home early on the morning of March 24; loaded them in a bag in her car, and was injured removing them from the back seat of her ear in the parking lot of the school; that she would not have been able to do her job if she had not brought these materials with her and if she had not reached behind her seat to remove them from her car.

Plaintiff’s supervisor, Mrs. Burkom, testified the teachers did their own preparation of materials at home and brought them to school when they came; that it was a part of the teacher’s job to bring supplies to school; that the Congregation asks its teachers to provide any materials beyond the normal materials of paste, scissors, construction paper and crayons; that the Congregation has no staff to purchase these kinds of special materials, so the teachers did it themselves and were reimbursed for what they brought in; that a teacher’s bringing in supplies to the school furthered the purpose of educating the children.

An injury is held to be in the course of a workmen’s employment if in going to or returning from his place of employment he undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer’s business with the express or implied approval of his employer; or is engaged upon some mission incidental to his employment, of substantial benefit to, and with the express or implied approval of his employer. American Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370; Texas Gen. Indem. Co. v. Bottom, Tex., 365 S.W.2d 350.

We think the jury’s answer to Issue 2 is against the great weight and preponderance of the evidence.

Plaintiff’s Points 1 and 3 are sustained; and defendant’s cross point is overruled.

REVERSED and REMANDED.


author: DIES, Chief Justice.

text:
    BILL MUNDAY PONTIAC, INC., Appellant, v. Edna M. SATTERWHITE, Appellee.
    No. 8312.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 6, 1979.

      Rick Rogers, Corpus Christi, for appellant.
    Thomas E. Tiemann, Kirk Kuykendall, Austin, for appellee.
   DIES, Chief Justice.

Appellee, Edna M. Satterwhite, as plaintiff below, sued Bill Munday Pontiac, Inc., appellant and defendant below, for alleged violations of the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-7.-03(3) and art. 5069-7.06(3) (Vernon 1971). Trial was to the court without a jury, resulting in a judgment for appellee for $1,967.21 plus attorney’s fees of $1,200, costs of $25.50, and further attorney’s fees predicated on appeal. It is from this judgment defendant below appeals.

Appellant’s first contentions are that the undisputed evidence showed that appellant corrected its error in accordance with Tex.Rev.Civ.Stat.Ann. art. 5069-8.-01(c)(2) (Vernon Supp.1978).

The suit resulted from appellee’s purchase of a 1973 Pontiac under a Retail Installment Contract — Motor Vehicle and Security Agreement from appellant.

It is undisputed this contract disclosed excessive interest charges and failed to inform appellee that insurance charges higher than that regulated by the State Board of Insurance were being required.

Tex.Rev.Civ.Stat.Ann. art. 5069-8.01(c)(l) (Vernon Supp.1978) provides:

“A person has no liability to an obligor for a violation of this subtitle or of Chapter 14 of this Title if within 60 days after having actually discovered such violation such person corrects such violation as to such obligor by performing the required duty or act or by refunding any amount in excess of that authorized by law; provided, however, that such person gives written notice to such obligor of such violation prior to such obligor having given written notice of or having filed an action alleging such violation of this subtitle or Chapter 14 of this Title.”

No written notice was given by appellant prior to appellee’s filing suit as required by this provision.

It is quite true that an employee of appellant testified he discovered that appellee had been charged too much interest and offered to redo the contract. However, this employee was an interested witness, and, therefore, his testimony was not binding on the court. R. T. Herrin Petroleum Transport Co. v. Procter, 161 Tex. 222, 338 S.W.2d 422 (1960). See McCormick & Ray, Tex. Law of Evidence, § 3 (1956); 62 Tex. Jur.2d, Witnesses, § 265, et seq. (1965); 24 Tex.Jur.2d, Evidence, § 705, et seq. (1961). Furthermore, there is no evidence in the record that appellant offered to correct the item of insurance charges. These points are overruled.

Appellant next urges the court was incorrect in rendering judgment for appel-lee based upon a violation of Tex.Rev.Civ. Stat.Ann. art. 5069-7.03(3) (Vernon 1971), for the reason that the undisputed evidence shows that appellant’s error was a bona fide error, citing Hight v. Jim Bass Ford, Inc., 552 S.W.2d 490- (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.); Page v. Central Bank & Trust Co., 548 S.W.2d 802 (Tex.Civ.App.—Eastland 1977, no writ); Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.).

Again, it was the trial court’s prerogative to believe or not believe the evidence appellant produced. Herrin, supra. No explanation was given for the insurance charge. These points are overruled.

Appellant’s next points contend the evidence conclusively shows the parties rescinded the contract or reached an accord and satisfaction.

Both the doctrine of rescission and accord and satisfaction require mutual assent, either expressly or tacitly. See Jenkins v. Henry C. Beck Co., 449 S.W.2d 454 (Tex.1969); Texas Gas Utilities Co. v. Barrett, 460 S.W.2d 409, 414 (Tex.1970).

It is true appellant contended appellee wanted her money back, and a check for $450 was sent appellee in November, which she did not return until January. However, appellee maintained she did not wish the contract cancelled, and once again the trial court had the prerogative to decide which contention he would accept.

There is yet another reason to reject these contentions by appellant. Before appellant sent the $450 check to appellee, it had assigned the contract in question to “M.A.C.” Thereafter, appellant could not bind its assignee to any rescission or changes in the contract. 6 Tex.Jur.2d, Assignments, § 41 at 432 (1959); See Bryant v. Beyer Co., 58 S.W.2d 138 (Tex.Civ.App.—Waco 1933, no writ). These points are overruled.

Finally, appellant asks for a reversal because of the failure of the trial court to file Findings.of Fact and Conclusions of Law. Judgment in this case was entered on August 9, 1978, and a request for Findings of Fact and Conclusions of Law was not filed until August 31, 1978. This was too late to satisfy Tex.R.Civ.P. 296. It should also be noted that no prejudicial error has been shown by the failure to file such findings. See Lachmann v. Houston Chronicle Pub. Co., 375 S.W.2d 783 (Tex.Civ.App.—Austin 1964, writ ref’d n. r. e.); Nathan Alter man Elec. Co. v. City of San Antonio, 362 S.W.2d 911 (Tex.Civ.App.—San Antonio 1962, writ dism’d). Further we find this failure to be harmless. Tex.R. Civ.P. 434; Deweese v. Crawford, 520 S.W.2d 522 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

Appellant urges, however, that the request for Findings of Fact and Conclusions of Law was not timely made because he was not notified of final judgment pursuant to Tex.R.Civ.P. 806d which requires:

“Immediately upon the signing of any final judgment . . . the clerk of the court shall mail a postcard notice thereof to each party to the suit . Failure to comply with the provisions of this rule shall not affect the finality of the judgment . . . .”

In our transcript we have an affidavit of appellant’s attorney stating:

“The undersigned, as attorney for Bill Munday Pontiac, Inc., was not notified by the Clerk of the Court, nor by plaintiff’s attorney of the entry of the judgment and it was not until August 29,1978, that the attorney for the defendant had any knowledge of entry of the judgment.”

We do not question the truth of the appellant’s attorney, but we have no evidence in this record that the clerk failed to comply with this rule.

All of appellant’s points are overruled, and the judgment of the trial court is affirmed.


text:
    BAYTOWN CYCLE INN, INC., et al., Appellants, v. TEXAS MOTOR VEHICLE COMMISSION et al., Appellees.
    No. 8309.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 6, 1979.
    Robert C. Cox, Dallas, William R. Crock-er, Austin, for appellants.
    R. Lambeth Townsend, Austin, for appel-lees.
   DIES, Chief Justice.

The Texas Motor Vehicle Commission granted a license to sell new Kawasaki Motorcycles to Jack J. Cotton, d/b/a Kawasaki of Pasadena, as a replacement of the dealership of Jim Edwards. Baytown Cycle Inn, Inc., and other licensed competitors selling Kawasaki Motorcycles sought to protest this license before the Commission and later filed suit in the 53rd District Court of Travis County (Jones, H.) to set aside the decision. The District Court affirmed the Commission’s decision, from which the protesting dealers bring this appeal.

They urge error because (1) ten days’ notice had not been given as required by Section 13(a) of the Administrative Procedure Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Vernon Supp.1978); (2) the Commission refused to hear evidence by the protesting dealers pursuant to Section 3.04 of the Motor Vehicle Commission Code, Tex. Rev.Civ.Stat.Ann. art. 4413(36) (Vernon 1976); (4) the Commission’s decision was contrary to the greater weight and preponderance of all credible testimony; (5) the proceedings before the Commission were not recorded; (6) an informal disposition of any contested case may only be made by stipulation, agreed settlement, consent, order, or default; (7) the provisions of the Administrative Procedure Act, Article 6252-13a, concerning notice and hearing, were not followed. We affirm the decision of the trial court for the reasons given hereafter.

The Commission correctly proceeded in this application under Section 5.02(3) of the Motor Vehicle Commission Code, Tex.Rev. Civ.Stat.Ann. art. 4413(36) (Vernon Supp. 1978), which provides, in part:

“Sec. 5.02. It shall be unlawful for any manufacturer, distributor or representative to: .
(3) Notwithstanding the terms of any franchise agreement, terminate or refuse to continue any franchise with a dealer unless (A) the dealer and the Commission have received written notice sixty days before the effective date thereof setting forth the specific grounds for termination or noncontin-uance and (B) if the dealer files a protest with the Commission, it is established by a preponderance of evidence at a hearing called by the Commission that there is good cause for the termination or noncontinuance. The Commission shall consider all the existing circumstances in determining good cause, including without limitation the dealer’s sales in relation to the market, the dealer’s investment and obligations, injury to public welfare, adequacy of service facilities, equipment, parts and personnel of the dealer and other dealers of new motor vehicles of the same line-make, whether warranties are being honored, and compliance with the franchise agreement. Good cause shall not be shown solely by a desire for further market penetration. If a franchise is terminated or not continued, another franchise in the same line-make will be established within a reasonable time unless it is shown to the Commission that the community or trade area cannot reasonably support such a dealership. If this showing is made, no dealer license shall be thereafter issued in the same area unless a change in circumstances is shown.”

We think this section gives the terminated dealer a right to protest, but not other dealers in the area. If the manufacturer, distributor, or representative can show that a dealership cannot be supported in the trade area, replacement of the dealer is not required. Competing, existing dealers have no right under this section of the statute to protest the replacement of a dealer. It is only in a proceeding under Section 4.06(c) of the Act — to establish a dealership — that competing dealers are given this right.

In the instant case, notice was given the protesting dealer that the replacement applicant was contending it was entitled to a “Summary Judgment.” The protesting dealers appeared and were represented by counsel. Under these circumstances, the length of the Commission’s notice to the protesting dealers, or the fact the recording devices broke down, caused no harm. See White v. Zoning Board of Adjustment of Arlington, 363 S.W.2d 955, 959 (Tex.Civ.App.—Fort Worth 1962, writ ref’d n. r. e.). All of appellant’s points are overruled, and the judgment of the trial court is affirmed.

AFFIRMED.