author: DALLY, Judge.

text:
    Robert C. WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 57891.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 19, 1979.
    Glen E. Eakman, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Marvin L. Collins, Michael G. Maloney, William D. Kane, Jr., and James D. Heinemann, Asst. Dist. Attys., Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated robbery. The punishment was assessed at imprisonment for thirty years.

The sole ground of error urged on appeal is that the trial court erred in allowing the State to cross-examine a defense witness by asking “have you heard” questions about the appellant’s reputation.

Appellant filed a motion requesting that he be granted probation. At the punishment phase of the trial, appellant’s mother testified for the defense. During direct examination the trial court refused to let the mother testify to any matters about which she did not have personal knowledge. The witness did not testify to appellant’s reputation in the community.

The witness testified on direct examination that her son did not have bad habits; he did not drink or smoke. On cross-examination, the prosecutor quickly limited the scope of this testimony.

“Q. You testified that under your supervision that he was a good boy, is that what you are testifying to?
“A. No, I wouldn’t say he was a good boy, no. What I was trying to say, he didn’t have a habit of drinking and smoking and dope, as I know of. That’s what I was speaking of.
“Q. You did testify that he did not have any bad habits?
“A. Well—
“Q. Were those your words?
“A. I didn’t understand it were. I wouldn’t say he didn’t have bad habits.”

The witness also testified that her son was a hard working boy who always held a job, if he lost one he tried to get another. The witness admitted that she knew her son had lost a job in February 1977, testifying that, to her knowledge, her son had been laid off.

Over appellant’s objection, the prosecutor asked the witness if she had heard her son was terminated from his employment for theft. The prosecutor, over objection, also asked the witness if she had heard her son had been arrested for robbery in February 1977 and further asked if she had heard her son had been arrested for theft in 1970. While the questioning about the circumstances of appellant’s loss of his job might have been permissible, the “have you heard” questions about the unadjudicated robbery and the 1970 theft should not have been allowed.

This Court has recently addressed the question of which circumstances will permit “have you heard” questions such as those at issue here. Ward v. State, 591 S.W.2d 810 (Tex.Cr.App.1978) (delivered 1979). Ward overruled Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.1973). Ward initially clarifies the distinction between character testimony and reputation testimony:

“Since the purpose of a have you heard question is to test the witness who purports to be familiar with hearsay and rumors of the accused’s reputation, a witness who has not professed to be familiar with that reputation in the community could not logically be discredited by questions of whether he has heard other rumors of acts inconsistent with that reputation. Simply stated, there is no reasonable basis for asking have you heard questions of a witness who testifies to his personal opinion of someone’s character, as opposed to the reputation of that person’s character. Since appellant’s wife was not testifying to his reputation, no have you heard questions to test familiarity with that reputation should have been allowed at all.”

591 S.W.2d 818. Ward also held that if a witness does testify to reputation, the witness can still only be impeached by acts which are inconsistent with the specific trait testified to by the witness.

Appellant’s mother did not testify to his reputation; all of her testimony was limited to her personal knowledge. Much of this opinion testimony may not have been admissible character evidence; “yet, when such improper evidence is admitted, the State may not under the guise of rebuttal present additional improper evidence.” Ward v. State, 591 S.W.2d at 818.

The State further argues that the mother placed her past ability to control her son into issue. The witness never testified that she had successfully controlled her son’s behavior in the past and she did not guarantee such control in the future, except to testify that she would do her best to insure her son’s compliance with the terms of probation. This testimony is not sufficient to allow the “have you heard” questioning complained of here.

The judgment is reversed and the cause is remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Chris VILLARREAL, Appellant, v. The STATE of Texas, Appellee.
    No. 62672.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 19, 1979.
    John R. Francis, Temple, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for burglary of a building. The punishment was assessed at imprisonment for two years, probated, and a $250 fine.

Appellant entered a plea of guilty and a judicial confession to the offense of burglary of a building. This offense is a felony of the second degree. V.T.C.A. Penal Code, Sec. 30.02(c). In assessing punishment the record shows that the district court treated the offense as a Class A misdemeanor and assessed a punishment of sixty days in jail, probated for one year, and a $250 fine. Nearly five months later, the State filed a motion to reopen punishment and assess a proper punishment, contending that the pri- or sentence was void. The district court granted the motion and this decision forms the basis of appellant’s appeal. Appellant argues that the State’s motion was tantamount to a State’s motion for new trial and that the court did not have the authority to grant such a motion and reset the punishment.

The punishment for a second degree felony is imprisonment for a period of from two to twenty years. V.T.C.A. Penal Code, Sec. 12.33. Unlike a third degree felony, there is no authority for reducing a second degree felony to a Class A misdemeanor. Compare id. at Sec. 12.44. The initial punishment assessed was therefore void. Since there was “a failure from any cause whatsoever to enter judgment and pronounce sentence,” the district court had the authority to enter a proper judgment and pronounce sentence. Art. 42.06, V.A.C. C.P. In contrast to a motion for new trial, the defendant need not initiate any entry of proper judgment and pronouncement of sentence under Art. 42.06.

Appellant takes the position that a nunc pro tunc procedure can never be used to correct a judicial error, because a court can only correct what was done, not what should have been done. This position is true, but in this instance is irrelevant. If a punishment is void, assessment of a proper punishment is not a correction. In the key case cited by appellant, Ex parte Pruitt, 139 Tex.Cr.R. 438, 141 S.W.2d 333 (1940), the Court, using reasoning not applicable to the present penal code, held that the excessive sentence was not void, and thus barred a nunc pro tunc correction.

In Cooper v. State, 527 S.W.2d 898 (Tex.Cr.App.1975), appellant pleaded guilty to delivery of heroin and was sentenced to four years imprisonment. The trial court subsequently discovered that the minimum sentence for this offense was five years and, over the defendant’s objection, set aside the punishment and sentence, assessed punishment at five years, entered judgment and pronounced sentence accordingly. This Court affirmed, holding that:

“Since the trial court was not authorized to assess the punishment at 4 years because such period is not within the range set forth in the statutes, the original punishment set by the court and the sentence based thereon were void . . . The original punishment and sentence being void, the trial court acted properly and within his authority in assessing a lawful punishment at the subsequent hearing, and in pronouncing sentence based on such punishment.”

527 S.W.2d at 899; accord Saunders v. State, 511 S.W.2d 281 (Tex.Cr.App.1974). No error was committed.

The judgment is affirmed.

ROBERTS, J., not participating.


author: JAMES, Justice.

text:
    Johnny Ray KEEL et ux., Appellants, v. Josephine E. HOGGARD, Appellee.
    No. 6034.
    Court of Civil Appeals of Texas, Waco.
    Nov. 8, 1979.

      F. Ben Selman, Jr., Waco, for appellants.
    John D. Cabaniss, Waco, for appellee.
   OPINION

JAMES, Justice.

This is a suit to collect the unpaid balance due on a vendor’s lien note. Plaintiff-Ap-pellee Mrs. Josephine E. Hoggard brought this suit against her. nephew Johnny Ray Keel and his wife, Judy Bathea Keel, Defendant-Appellants herein, to collect the unpaid balance of $6670.00 plus 10% attorney’s fees as called for in a $12,000.00 vendor’s lien note executed by the Keels and payable to Mrs. Hoggard.

On November 29, 1968, Plaintiff Mrs. Hoggard, joined pro forma by her husband, conveyed to the Keels by general warranty deed certain property in the City of Waco, Texas, to wit, Lot 3 of Block “I” of the West End Addition to said City. The deed recited the reservation by grantor of a vendor’s lien note in the principal amount of $12,000.00 of even date with said deed, bearing no interest, payable in monthly installments of $75.00 each on the first day of each month, the first such payment having been due on January 1, 1969, and payable $75.00 on the first day of each succeeding month thereafter until all of said note shall have been paid in full. On May 16, 1972, Plaintiff Mrs. Hoggard executed a written release of lien in standard form to the Defendants Keel, reciting payment in full of said $12,000.00 note. Said release was filed for record on May 16, 1972, at 3:25 P.M., this being the same day upon which the release was dated and executed.

Plaintiff Mrs. Hoggard alleged that the Keels fraudulently induced her to execute the release in question at a time when there was a substantial balance due her upon the note, and thereupon she prayed for a judgment for the unpaid balance of the note in the amount of $6670.00 plus 10% attorney’s fees, together with a foreclosure of the asserted vendor’s lien against the subject realty. Defendants Keel answered by general denial, not guilty, the four year statute of limitations, and laches.

Trial was had before the court without a jury after which the trial court awarded Plaintiff Mrs. Hoggard a judgment against the Defendants Keel for $6670.00 plus $667.00 attorney’s fees and costs, without any foreclosure of lien. No findings of fact or conclusions of law were made by the trial court.

Defendants Keel assail the trial court’s judgment upon six points of error as follows: (1) there are no pleadings to support the judgment which impliedly cancelled, set aside, or reformed the release of lien and its accompanying acknowledgement of full payment of the vendor’s lien note; (2) and (3) the evidence is legally and factually insufficient to support the trial court’s judgment which impliedly cancelled, set aside, or reformed the release of lien and its accompanying acknowledgement of full payment of the vendor’s lien note; and (4), (5), and (6) plaintiff’s action is barred by the four year and two year statutes of limitations, and by laches. We overrule all of Appellants’ points and contentions and affirm the trial court’s judgment.

We revert to Appellants’ first point, to wit, that there are no pleadings to support the trial court’s judgment which impliedly cancelled, set aside, or reformed the release of lien and its accompanying acknowledgement of full payment of the vendor’s lien note in question. Plaintiff’s trial pleadings alleged that “on May 16, 1972, Defendants fraudulently induced Plaintiff to execute a full release of the $12,000.00 recorded vendor’s lien, on condition that Defendants would continue to make payments on the note as heretofore agreed, and that Defendants would not record the release until after Plaintiff’s death. Defendants then recorded said release and have failed and refused to make payments on said note, and there is now due and owing Plaintiff the sum of $6670.00 plus attorney’s fees of ten percent of the principal now due, and Plaintiff has a valid vendor’s lien against the property herein described.’? Then in the prayer, Plaintiff prayed _ that on final hearing hereof, Plaintiff have judgment for foreclosure and attorney’s fees plus costs of court, and that all necessary writs issue. In the alternative, Plaintiff prays that she recover the sum of $6670.00 due her on the note in question, plus attorney’s fees of 10% on the principal now due, plus costs of court.”

The Defendant-Appellants did not file any special exceptions to Plaintiff-Ap-pellee’s pleadings. We hold that in this state of the record the Plaintiff-Appellee’s pleadings were sufficient to support the trial court’s implied finding that, as between the parties, the release in question was of no force and effect, insofar as the existence of the debt (unpaid balance of the note) was concerned. If there had been any defect, omission or fault in such pleadings of form or of substance, it was Appellants’ duty to file exceptions thereto, and therefore any defect in the pleadings of form or of substance was waived by Appellants. Rule 90, Texas Rules of Civil Procedure; Texas Osage Coop. Royalty Pool v. Kemper (Galveston CA 1943) 170 S.W.2d 849, writ refused; Chandler v. Hendrick Memorial Hospital (Eastland CA 1958) 317 S.W.2d 248, NRE.

Appellants’ second point asserts that there is no evidence to support the trial court’s judgment impliedly cancelling, setting aside or reforming the release of lien in question and its accompanying acknowl-edgement of full payment of the vendor’s lien note. Appellants’ third point complains that such implied findings of the trial court are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, under the doctrine of In re King’s Estate (Tex.1951) 150 Tex. 662, 244 S.W.2d 660. We overrule these points of error.

Plaintiff-Appellee Mrs. Hoggard is the aunt of the Defendant-Appellant Johnny Ray Keel. On November 29, 1968, by general warranty deed, she sold and conveyed to defendants Mr. and Mrs. Keel the house and lot in question for a recited considera-: tion of ten dollars cash and the execution by the Keels of the $12,000.00 vendor’s lien note payable to Mrs. Hoggard, bearing no interest, and payable $75.00 on the first day of each month beginning January 1, 1969. After the Keels became the owners of the place, they made their payments in an irregular manner, having made such payments to a bank as requested by Mrs. Hog-gard. A systematic and accurate record was made of all of such payments, and there is no dispute between the parties but that first and last the Keels paid a total of $5330.00 on the note, with the remaining $6670.00 having been unpaid.

Along about May 16, 1972, and prior thereto, Mrs. Hoggard and her husband were experiencing marital difficulties, during which times they were having disagreements over property. Mrs. Hoggard testified that the Keels were afraid that Mrs. Hoggard’s husband might take their place away from them if “anything happened” to Mrs. Hoggard; that the Keels kept after her about this, and she (Mrs. Hoggard) wanted to protect them. Mrs. Hoggard further testified that after all of this pressure on her, she went to her lawyer to see about getting a release of the vendor’s lien drawn up. Her lawyer advised against it; but nevertheless, Mrs. Hoggard disregarded her lawyer’s advice and had the release drawn on an oral agreement with the Keels that the release would be kept by the Keels in Mrs. Hoggard’s bank box, and that the Keels were supposed to leave the release in such bank box until after Mrs. Hoggard’s death, so that the Keels “would (then) get it and give it to anyone who tried to take the place away from them.” Mrs. Hoggard further testified that the Keels were supposed to continue their payments until the note had been paid. Mrs. Hoggard gave the Keels the key to her bank box. The release of lien was signed and acknowledged by Mrs. Hoggard on May 16, 1972, and recites that it is made “in consideration of the payment in full” of the $12,000.00 vendor’s lien note in question. Mrs. Hoggard further testified that without her knowledge, the release was filed for record at 3:25 P.M. on May 16,1972, the same day she executed such release. Thereafter, the Keels continued to make payments to Mrs. Hoggard, essentially in the same irregular manner as before, until December 1, 1976. The December 1, 1976, payment was the last payment the Keels made. Mrs. Hoggard testified that she first found out about the release being filed for record in December 1976 or in February 1977, at or about the time the Keels quit paying altogether. On May 19, 1977, Mrs. Hoggard filed suit against the Keels.

Mr. Keel testified that at or about the time the release was signed, Mrs. Hoggard came to the home of the Keels'to eat supper, on which occasion she brought “an armfull of papers, and the key to her bank box, and handed them to the Keels and said, ‘There’s you kids’ house, you don’t have to worry about it no more, about nobody taking it from you.’” On this occasion, Mr. Keel testified that “me and my mother and Judy and the kids” were present. Mr. Keel’s mother was Mrs. Hoggard’s sister. Mr. Keel further testified that at no time did Mrs. Hoggard ever tell the Keels that they were not obligated to pay the balance of the note. That is to say, that Mrs. Hoggard never did tell them that they were not required to keep paying on the note. Mr. Keel further testified that he never did ask Mrs. Hoggard to sign the release. He said he “kept paying her” after the release, but felt that he had no obligation to pay. On cross-examination Mr. Keel was -vague on why he continued to make these payments from May 16,1972, until December 1, 1976, saying at one point in effect that he made these payments “out of the goodness of (his) heart,” and at another point that he knew Mrs. Hoggard needed the money, because “Don (Mrs. Hoggard’s husband) was spending all her money."

Mrs. Keel testified that the reason Mrs. Hoggard executed the release was because “her and Don was having trouble and that (she) was afraid that he was going to step in and try to take it over,” but that she (Mrs. Keel) and Mr. Keel never asked Mrs. Hoggard to sign the release. Mrs. Keel testified that on the occasion in question at suppertime that Mrs. Hoggard “said they (Mrs. Hoggard and her husband) were having a lot of trouble and he (Mr. Hoggard) wanted her to come down here and to make us (the Keels) refinance the house and pay her off and she said in the will, it states that the house was willed to you jointly (to the Keels) and that she didn’t want Don to come up here and give her any static about it.” Mrs. Keel further testified that on other occasions Mrs. Hoggard told her that they (the Keels) were under no obligation to pay her, but that they (the Keels) kept making the payments after the release “because I felt like I had an obligation to do it.” She said Mrs. Hoggard told her, “By rights, you don’t have to pay me,” but that she did ask them (the Keels) to continue to make the payments. During the time of her separation from her husband, Mrs. Hog-gard made her home in Waco with her sister, Mrs. Frances Mace, who was Mr. Keel’s mother.

Mrs. Frances Mace, who prepared supper on the evening in question, testified that “Jo (Mrs. Hoggard) came in and gave title to the house and said, ‘Now, here’s the title to the house and if anything happens to me, then Don cannot come in and take the house . _ _ away from you.’” Mrs. Mace further testified: “The kids and all the family always thought that Don would come in and try to take the house from them.”

Appellants Keel argue that since Appellants pleaded and proved the release which recited that the $12,000.00 note had been paid in full, that such written release is conclusive on the issue that the note had been paid, and that parol evidence is not admissible to show that said note had not been paid. We do not agree.

Here, Appellee Mrs. Hoggard proved that the Keels had paid $5330.00 on the note, leaving an unpaid balance of $6670.00, all of which was not denied by the Appellants Keel. This being so, parol or extrinsic evidence is admissible to show what part of the consideration had not been in fact paid.

We aré familiar with the rule that parol evidence is not admissible to contradict or vary the terms of written contracts or documents, and when such documents are executed and delivered, they automatically become effective in accordance with the terms and purposes evidenced by the language in which they are written. But there are exceptions to this general rule, and one of those exceptions is that parol evidence may be received to prove that the consideration recited in deeds or other written instruments was not in fact paid. Lanier v. Faust (Tex.1891) 81 Tex. 186, 16 S.W. 994, 995; Cochell v. Cawthon (Amarillo CA 1937) 110 S.W.2d 636, error dismissed. It has long been recognized that a recitation of consideration which is in the nature of a receipt (as in the case at bar) can be explained or contradicted by parol evidence. Lanier v. Faust, supra. The undisputed testimony of both Appellants and Appellee was not that the note had not been paid in full. In other words, the recitation in the release that the note had been paid in full was rebutted by the parol testimony of all parties to the suit.

Defendant-Appellants further contend that Plaintiff-Appellee was required to plead and prove fraud so as to make out a case for cancelling and setting aside the release in order to be entitled to a judgment for the unpaid balance on the note. We overrule this contention, because it is well settled that, as between the original parties, as here, it is not necessary to allege fraud, accident, or mistake in order to show the true consideration for the release. See Bentley v. Andrewartha (Austin CA 1978) 565 S.W.2d 590, 592, NRE; Puckett v. Frizzell (Tyler CA 1964) 377 S.W.2d 715, no writ, and the cases cited therein on page 721.

Moreover, Mrs. Hoggard’s testimony shows that there was a conditional delivery of this release. She testified that she executed the release and gave it to the Keels with the understanding that the Keels would keep it in her bank box and would not file the release for record until after her death, and in this connection she gave them the key to her bank box. In violation of this condition, the release was filed for record at 3:25 P.M. on May 16,1972, on the very day it was executed by Mrs. Hoggard. Furthermore, Mrs. Hoggard testified that the Keels promised to continue making their payments on the note even though she had executed and given them the release. This testimony was corroborated by the fáct that Appellants Keel did continue to pay on the note, albeit intermittently, for more than four years, the last such payment having been made on December 1,1976. All of this testimony is evidence of a conditional delivery of tile release. Our Supreme Court, in Stephens County Museum, Inc. v. Swenson (Tex.1974) 517 S.W.2d 257, has held that, even in the case of a deed, the question of delivery is “controlled by the intent of the grantor” and “is determined by examining all the facts and circumstances preceding, attending, and following the execution of the instrument.” Also see Baker v. Baker (Tex.1944) 143 Tex. 191, 183 S.W.2d 724, 728; Taggart v. Crews (Waco CA 1976) 543 S.W.2d 422, NRE.

Evidence of fraud in the transaction involving the execution of the release also supports the judgment in favor of the Appellee. Appellants argue that a showing of fraud is impossible under the facts of this case because there was no showing of a material misrepresentation of fact or intent to deceive at the time of the execution of the release. Appellants properly recite the law and the facts related to actual fraud but have overlooked the evidence in this case of constructive fraud. Constructive fraud generally relies on a breach of duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. See Archer v. Griffith (Tex.1964) 390 S.W.2d 735, 740. Constructive fraud usually arises from a breach of a trust or confidential relationship which equity deems worthy of protection. Archer v. Griffith, cited supra. Such confidential relationships are not limited to technical fiduciary relationships such as attorney-client, trustee-cestui, partner-partner, etc., but may also arise from “moral, social, domestic, or purely personal” relationships. 54 Am.Jur. 173, § 225, “Trusts,” quoted in Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, and in Thigpen v. Locke (Tex.1962) 363 S.W.2d 247. Also, see Fain v. Beaver (Waco CA 1972) 478 S.W.2d 816 NRE, and the cases therein cited on page 819.

The record in this case provides ample evidence to support a finding of constructive fraud based on a breach of a confidential relationship and such evidence is clearly supportive of the judgment in this case. For example, here Mrs. Hoggard was the aunt of Mr. Keel, Mr. Keel’s mother being Mrs. Hoggard’s sister; the parties were close in their relationship, since Mrs. Hoggard visited in the Keel home often, and made her home with Mr. Keel’s mother in Waco, Texas, when she (Mrs. Hoggard) separated from her husband; Mrs. Hoggard sold the Keels the place in question for a $12,000.00 note which bore no interest; Mrs. Hoggard trusted the Keels by giving them the release, thereby giving up her lien on the property, with their promise to continue to make the payments; she testified that she had left the place to the Keels in her will; she gave them the key to her bank box and requested that they keep the release there until her death, at which time they could record the release. Appellants’ points of error 1, 2, and 3 are overruled.

Appellants’ fourth point asserts the trial court erred in impliedly setting aside the release of lien because any action to set aside that instrument in writing is barred by the four year statute of limitation. We overrule this contention. Under our view of the case, as hereinabove expressed, it was not necessary for the Plaintiff-Appellee to plead and prove a cause of action for fraud to set aside the release in order to be entitled to sue for the unpaid balance of the note. This suit is actually to recover the amount due on a written note, and is governed by Article 5527, Section 1, Vernon’s Texas Civil Statutes, which is a four year statute of limitation. For an installment note as in the case at bar, the law is well settled that the statute of limitation begins to run on each payment when it becomes due. See Goldfield v. Kassoff (Houston 14th CA 1971) 470 S.W.2d 216, no writ, and the cases cited therein on page 217. This was a $12,000.00, note without interest, payable $75.00 per month beginning January 1, 1969. It is undisputed that the Keels paid $5330.00 on the note. A mathematical calculation shows that by paying $5330.00 to Plaintiff-Appellee, Defendant-Appellants were paid through No: vember 1, 1974, with $5.00 to spare. See Prowell v. Berry-Barnett Grocery Co. (Waco CA 1970) 462 S.W.2d 53, writ refused, for rule concerning application of payments. Plaintiff-Appellee filed this suit May 19, 1977, well within the four years allowed by law.

Defendant-Appellants by their fifth point assert that Plaintiff-Appellee’s suit for damages for fraud is barred by the two year statute of limitation. However, Defendant-Appellants did not plead the two year statute of limitation, and now raise same for the first time on appeal, and have therefore waived same. Even so, this point is without merit, as it is undisputed that Plaintiff-Appellee did not discover the fraud in the filing of the release until December 1976, less than six months before she filed suit. See Courseview v. Phillips Petroleum Co. (Tex.1957) 158 Tex. 397, 312 S.W.2d 197.

We have carefully considered all of Appellants’ points and contentions, and overrule same as being without merit. Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: GUITTARD, Chief Justice.

text:
    T. P. S., Appellant, v. STATE of Texas, Appellee.
    No. 20113.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 9, 1979.
    Rehearing Denied Dec. 12, 1979.

      Robert A. Flynn, Robert N. Udashen, Crowder & Mattox, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Maridell Templeton, Asst. Dist. Atty., Dallas, for ap-pellee.
    Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.
   GUITTARD, Chief Justice.

A fifteen-year old boy brings this appeal from an order of the juvenile court transferring him to a felony court for trial on a charge of murder. His principal complaint is that the trial court denied him a hearing on his application for temporary hospitalization under section 55.02 of the Texas Family Code. We hold that he was entitled to such a hearing, and we remand for further proceedings in the juvenile court. In view of such further proceedings, we hold also that section 54.02(f) of the Code, which enumerates the factors to be considered by the juvenile judge in exercising his discretion in making the transfer, is not void for vagueness, and that no prejudice is shown from the court’s quashing a notice to take the deposition of one of the investigating officers.

1. Temporary Hospitalization

a. Applicability of Section 55.02 to Discretionary Transfers

Appellant’s request for temporary hospitalization was based on subdivision (a) of section 55.02, which provides:

If it appears to the juvenile court, on suggestion of a party or on the court’s own notice, that a child alleged by petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision may be mentally ill, the court shall initiate proceedings to order temporary hospitalization of the child for observation and treatment.

The state contends that this section does not apply when the petition seeks a transfer rather than a delinquency adjudication because the child is not “alleged by the petition ... to have engaged in delinquent conduct” within section 55.02(a). We do not agree. The allegations of the petition fall within the statutory definition of “delinquent conduct.” Section 51.03 of the Code defines this term to include, among other conduct, violation of “a penal law of this state punishable by imprisonment.” The petition alleges that appellant intentionally and knowingly caused the death of an individual by beating him with a club “in violation of a penal law of this state punishable by imprisonment.” Consequently, it is clear that the petition alleges that appellant has “engaged in delinquent conduct.”

Moreover, as we read the Code, the prosecuting attorney is required to allege that the child has “engaged in delinquent conduct” as a basis for transfer to a criminal court. Transfer proceedings are governed by section 54.02 of the Code. The only provision in section 54.02 concerning the contents of the petition is subdivision (b), which provides: “The petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied.” Of the sections specified, the only one pertaining to the contents of the petition is section 53.04, which contains the following:

(a) If the preliminary investigation, required by Section 53.01 of this code results in a determination that further proceedings are authorized and warranted, a petition for an adjudication or transfer hearing of a child alleged to have engaged in delinquent conduct or conduct indicating a need for supervision may be made as promptly as practicable by a prosecuting attorney who has knowledge of the facts alleged or is informed and believes that they are true. [Emphasis added].

Construed together, as they must be, section 54.02(b) and 53.04(a) require that a petition for transfer allege that the child has “engaged in delinquent conduct.” We recognize that section 53.04(a) adds “or conduct indicating a need for supervision,” and by the terms of section 54.02(a), a transfer is authorized only if “the child is alleged to have violated a penal law of the grade of felony.” Nevertheless, section 53.04 clearly applies both to petitions seeking transfer and to petitions seeking delinquency adjudication. The broad term “delinquent conduct or conduct indicating a need for supervision” defines the wliole range of conduct subject to the jurisdiction of the juvenile court, and section 54.02, when taken in connection with section 53.04(a), requires that a petition for transfer must allege a case within the jurisdiction of the juvenile court. Of course, some types of conduct included in section 53.04(a), may not be made the basis for a transfer.

In view of the specific reference to section 53.04 in section 54.02(b), we cannot agree with the state’s counsel that the “transfer” mentioned in section 53.04(a) means a transfer of the proceedings to another county under the provisions of section 51.07. Section 51.07 authorizes transfer of the proceedings to another county only in the case of a child who “has been found to have engaged in delinquent conduct or conduct indicating a need for supervision under section 54.03 of this code.” We find no authority for transfer to another county before an adjudication of delinquency under section 54.03. Consequently, the “petition for an adjudication or transfer hearing,” required by section 53.04(a) as the first step in a judicial proceeding before the juvenile court, must necessarily refer to a discretionary transfer to a criminal court under section 54.02.

In explaining his ruling, the juvenile judge expressed the view that when transfer to a criminal court is sought, section 55.02(a) does not apply unless there has been a previous finding that the child “as a result of mental disease or defect lacks capacity to understand the proceedings in juvenile court or tq assist in his own defense” within section 55.04(a) of the Code. In this connection, the judge referred to section 55.04(f), which provides:

If the court or jury determines that the child is unfit to proceed, the court or jury shall determine whether the child should be committed for a period of temporary hospitalization for observation and treatment in accordance with Section 55.02 of this code .

We read section 55.04 to mean that whether the petition seeks discretionary transfer or delinquency adjudication and disposition, if any party raises the question of the child’s fitness to proceed, the juvenile court must hear evidence and determine the question of fitness, and, if it finds the child unfit, it shall then determine whether the child should be committed for temporary hospitalization under section 55.02. A finding of unfitness, however, is not the only situation in which the court is required to initiate proceedings for temporary hospitalization under section 55.02. Nothing in section 55.02, or elsewhere in the Code, limits its application to this situation. The only prerequisite for such proceedings in section 55.02 is that it “appears to the juvenile court . . . that a child alleged by petition or found to have engaged in delinquent conduct . . . may be mentally ill.”

The state contends that a child charged with a felony should not be permitted to use section 55.02 as a stratagem to develop a mental illness defense to be raised at the transfer hearing as well as later in a criminal prosecution. It insists that when the prosecuting attorney has exercised his pros-ecutorial discretion to seek a transfer to a criminal court, the juvenile court’s inquiry into the child’s mental health is limited to his fitness to proceed with the transfer hearing under section 55.04. Consequently, the state argues, if the court finds him fit to proceed, it cannot properly order his hospitalization for an indefinite period to determine whether he has a mental disease or defect that would exclude criminal responsibility and permit him to raise that defense at the transfer hearing as well as later in the criminal proceedings.

Whatever basis this argument may have in considerations of policy, we find no support for it in the Code. We recognize that the guilt of the child is not the issue in a transfer proceeding. Nevertheless, a report concerning the child’s mental condition after a period of hospital observation and treatment should be considered by the juvenile court in exercising its discretion to order a transfer in view of subdivision (f)(6), which requires the court to consider “the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.” Such a report would also be pertinent under subdivision (d) of section 54.02, which requires the court to “order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.” Obviously, if it should appear to the court that the child “may be mentally ill,” the Code does not contemplate that the investigation should be considered full, or the diagnostic study complete until proceedings should be initiated and completed to determine the child’s need for temporary hospitalization for observation and treatment, and if such need should be found, until a sufficient period has elapsed for a report of such observation. Moreover, the Code is concerned at this stage of the proceedings with immediate treatment of any mental illness that may be discovered. Consequently, we conclude that the legislative intent is clear to require proceedings to determine the need for temporary hospitalization whenever it appears to the juvenile court that the child may be mentally ill, even though the child is competent to understand the consequences of his acts and to aid in his defense, and regardless of whether the petition seeks a delinquency adjudication or a discretionary transfer to a criminal court.

Appellant contends alternatively that if temporary hospitalization is not available when the prosecuting attorney seeks a discretionary transfer, then the child is denied equal protection of the laws because this construction would result in an invidious discrimination, without the justification of a compelling state interest, between juveniles who are respondents to a petition for discretionary transfer and those in like circumstances with respect to whom a delinquency adjudication is sought. We do not find it necessary to pass on this question in view of our interpretation above stated that proceedings for temporary hospitalization are available under section 55.02, whether the petition seeks a delinquency adjudication or a discretionary transfer.

We recognize that the state’s construction of the Code is supported by R. K. A. v. State, 553 S.W.2d 781 (Tex.Civ.App.— Fort Worth 1977, no writ). There the court said that section 55.02 (concerning temporary hospitalization) and section 55.05 (mental disease excluding responsibility) apply “only in the event the child is to be tried as a juvenile on the issue of delinquent conduct or need for supervision.” The court went on to say, “If he is certified to stand trial as an adult, then his sanity will be measured by the more onerous adult standards than by those applicable to juveniles.” Id. at 782. The difficulty with this interpretation is that it deprives the child of the provisions of the Code with respect to temporary hospitalization even before the court determines whether he is to be tried as an adult rather than as a juvenile. We find nothing in the Code indicating that the child’s status as a juvenile is changed by the filing of a petition seeking a discretionary transfer before the juvenile court has an opportunity to exercise the discretion provided by section 54.02.

Although in R.K.A. the court states that its construction of section 55.02 and 55.05 is based on “a careful reading” of these statutes, it does not specify the particular provisions of those sections which lead it to that interpretation, nor does it refer to the provisions of sections 51.03, 53.04, and 54.02 which lead us to the opposite interpretation. Consequently, we respectfully decline to follow that case.

b. Denial of Hearing for Temporary Hospitalization

Having decided that section 55.02 is applicable whether or not the prosecuting attorney seeks a discretionary transfer, we must determine whether the juvenile court erred in this case in refusing to initiate proceedings to order temporary hospitalization. The procedure for the ordering of such temporary hospitalization is prescribed by section 55.02(b) of the Code, as follows:

The Texas Mental Health Code (5547 — 1 et seq., Vernon’s Texas Civil Statutes) governs proceedings for temporary hospitalization except that the juvenile court shall conduct the proceedings whether or not the juvenile court is also a county court.

Subdivision (c) provides that if the juvenile court orders temporary hospitalization, the child shall be cared for, treated, and released in accordance with the Mental Health Code, except that the head of the mental hospital must notify the juvenile court ten days before discharge. Subdivision (d) provides:

If the juvenile court orders temporary hospitalization of a child, the proceedings under this title then pending in juvenile court shall be stayed.

The record in this case shows that no hearing under section 55.02 was ever held in this case. Appellant’s counsel first filed a “motion for medical and psychiatric inquiry,” praying that the court should postpone the transfer hearing until an appropriate medical and psychiatric inquiry should be made into appellant’s condition, undér authority of this court’s decision in In re A_N_M_, 542 S.W.2d 916 (Tex.Civ.App. — Dallas 1976, no writ). (The case cited deals with the question of responsibility as a result of mental disease or defect under section 55.05). At a hearing on this motion on February 1, 1979, the court heard testimony from Dr. Maurice Green, a psychiatrist. Dr. Green testified that appellant could understand the nature and consequences of his acts and could assist the attorney in his defense if he wished, but that there was “a significant probability that he had a serious underlying psychiatric disorder or disease, so that he might be mentally responsible at one time but not at another.” Dr. Green stated that appellant, when under stress, exhibited schizophrenic tendencies and indications of petit mal or psychomotor epilepsy, and that an extended period of observation in a mental illness facility and various tests would be necessary to “rule out” mental illness.

Also before the court at this hearing were a written report from Dr. Green and a diagnostic report signed by Dr. Sandra Mims and Dr. Saleem Ateek, staff psychologists, to whom appellant had been referred by the probation officer. Dr. Mims and Dr. Ateek stated that in the absence of unusual stress, appellant was able to think and interact in an appropriate manner, but that “under even minimal stress and when placed in an emotionally-charged situation, he shows the capacity to rapidly deteriorate in his. ability to accurately interpret the situation and respond in an appropriately modulated fashion."

At the conclusion of this hearing, there was a discussion about the application of section 55.05(b) of the Code, concerning lack of responsibility as a result of mental disease or defect, and also section 55.04, concerning mental disease or defect excluding fitness to proceed. The judge stated that he would order an examination by an independent psychiatrist and would recess the hearing until a later date. The judge observed that he had no authority to commit appellant to a state mental illness hospital without a “full-blown mental illness hearing,” and that the hospitals would accept him only under the Mental Illness Act, but that the court could not address the Mental Illness Act until it could determine whether appellant was capable of proceeding.

Before the next hearing, appellant’s counsel filed a “motion for temporary hospitalization and observation,” specifically invoking the provisions of article 55.02. This motion cites the report and testimony of Dr. Green and also the report of Dr. Blaine McLaughlin, the psychiatrist appointed by the court. Dr. McLaughlin’s report states that appellant is competent to stand trial, but that he is “seriously emotionally ill and deserves and needs inpatient psychiatric care in the future.”

After appellant’s “motion for temporary hospitalization and observation” was filed, several hearings were held, but no further evidence was presented. On March 7 there was a discussion between the judge and counsel concerning the availability of hospital treatment, which ended with a statement by the judge that he would not release appellant for voluntary hospitalization and that the only other way was “to have this hearing and order him there in accordance with the statute.”

At another hearing on March 21, appellant’s counsel represented to the court that he had “two M. D. psychiatrists who will testify that temporary hospitalization is what they need to offer a firm opinion,” and that it was necessary to develop the evidence of sophistication and maturity to be presented at the hearing for discretionary transfer. Counsel stated that he did not think he could show that appellant was incompetent to proceed, but could show by the doctors’ testimony that he was mentally ill and required hospitalization.

After considerable discussion, the judge ruled that the only matter to be tried in advance of the transfer hearing was the matter of appellant’s fitness to proceed under section 55.04, and that there was no statutory basis on which appellant was permitted to present the issue of temporary hospitalization. Accordingly, the court denied the right to present any further evidence on that issue and noted the appellant’s exception. The court then set the matter down for hearing on the matter of discretionary transfer, and, after hearing evidence, signed the order waiving jurisdiction of the juvenile court and transferring appellant to a district court for trial on the charge of murder.

This record does not present a case in which the juvenile court initiated proceedings for temporary hospitalization and then, on the basis of evidence presented at a hearing held in accordance with section 55.-02, decided that temporary hospitalization was not appropriate. The record shows rather that after a hearing on the issue of mental disease or defect excluding responsibility under section 55.05, appellant withdrew his motion for a psychiatric inquiry under that section and requested a hearing on the issue of temporary hospitalization under section 55.02, which the court denied because of its interpretation of the Code. Because of that interpretation, which we now find erroneous, the court never held the hearing requested and made no determination of whether appellant was in need of temporary hospitalization for observation and treatment.

The state contends that appellant is not entitled to temporary hospitalization because he has not made a proper application for voluntary hospitalization under section 22 of the Mental Health Code, Tex.Rev. Civ.Stat.Ann. art. 5547-22 (Vernon 1958), and neither has he made a proper application for involuntary temporary hospitalization under sections 31 and 32 of the Mental Health Code, Tex.Rev.Civ.Stat.Ann. arts. 5547-31, 5547-32 (Vernon 1958). Although section 55.02(b) of the Family Code provides that the Mental Health Code governs proceedings for temporary hospitalization, we conclude that the formal requirements of the Mental Health Code concerning the institution of proceedings for temporary hospitalization do not apply to a case falling within section 55.02 of the Family Code. On the contrary, subdivision (a) of section 55.02 imposes on the juvenile court the duty to initiate proceedings for temporary hospitalization “[i]f it appears to the juvenile' court, on suggestion of a party or on the court’s own notice, that a child alleged by petition ... to have engaged in delinquent conduct . . . may be mentally ill.” We consider the unsworn “motion for temporary hospitalization and observation” filed in the present case a “suggestion” sufficient to invoke the court’s duty to “initiate proceedings to order temporary hospitalization,” provided that the information before the court was sufficient to show that the child “may be mentally ill.”

We must determine, therefore, whether the information before the court was sufficient to require the court to institute proceedings for such temporary hospitalization. We hold that it was sufficient to require such proceedings. The court had before it the testimony of Dr. Green at the earlier hearing and the written reports of Dr. Green, Dr. Mims, Dr. Ateek, and Dr. McLaughlin, all qualified experts, who stated that there was a strong possibility of a serious psychiatric or emotional disorder requiring further observation and treatment. This information was sufficient to show to the juvenile court that appellant “may be mentally ill,” in the sense of a reasonable possibility that such hospitalization was needed. This is the same standard as that requiring an inquiry into the child’s responsibility under section 55.05(b), Which has been held to require the court to hear evidence. In re A_ N_M_, 542 S.W.2d 916, 918 (Tex.Civ.App.—Dallas 1976, no writ). Consequently, we must remand the case to the juvenile court with instructions to initiate proceedings for temporary hospitalization under section 55.02. We do not hold that the information before the court was sufficient to require such hospitalization, but only that it required a hearing on that issue under section 55.02 and the applicable provisions of the Mental Health Code — the “full blown mental illness hearing,” which the juvenile court denied.

Accordingly, we reverse the transfer order and remand the case to the juvenile court for further proceedings. We comment briefly on other questions raised on this appeal which may be pertinent to those proceedings.

2. Vagueness of Factors Affecting Transfer

Appellant further complains of the order of transfer on the ground that section 54.02 of the Code, which undertakes to define the circumstances authorizing discretionary transfer, is so vague as to give the juvenile judge almost total discretion, and therefore denies due process. Appellant points out that the “welfare of the community,” which the court is required to determine by subdivision (aX3), is incapable of precise definition and may be many things to many people. Moreover, appellant attacks as impermissibly vague the various factors which the court is required to consider by subdivision (f):

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

This statute has been upheld as constitutional in a number of opinions that do not specify the grounds of the attack. See S C B v. State, 578 S.W.2d 833, 836 (Tex.Civ. App.— Houston [1st Dist.] 1979, writ ref’d n. r. e.); In re P. A. G, 562 S.W.2d 913, 917 (Tex.Civ.App.—Amarillo 1978, no writ); In re P. B. C., 538 S.W.2d 448 (Tex.Civ.App.—El Paso 1976, no writ). In our opinion, it is not so uncertain as to render its enforcement impracticable or impossible. It does not allow the juvenile judge unlimited discretion, since subdivision (h) of article 54.02 requires the court to “state specifically” in its order the reasons for the transfer. The court need not find that all the factors specified in subdivision (f) have been established, but it must consider all these factors and state its reasons for the transfer so that the appellate court may review the basis on which the conclusion was made and can determine whether the evidence so considered does in fact justify that conclusion. In the Matter of J. R. C., 551 S.W.2d 748, 753 (Tex.Civ.App.—Texarkana 1977, writ ref’d n. r. e.); In re J. R. C., 522 S.W.2d 579, 583 (Tex.Civ.App.—Texarkana 1975, writ ref’d n. r. e.).

Appellant, in effect, attacks the basic concept of a discretionary transfer in that he argues that the circumstances authorizing a transfer must be defined by the statute with the same certainty as that necessary to define a penal offense so that the child, when he engages in the conduct complained of, may be presumed to know, not only that he is committing an offense, but also that if charged with such conduct, he will be tried as an adult. We do not agree that due process requires the factors affecting the transfer to be defined with the same certainty as that required to define an offense. For due process it is enough that the conduct be defined as criminal so as to subject the offender either to the processes of juvenile justice or to trial and punishment as an adult.

This conclusion is consistent with the holding in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), which holds that due process requires a notice and hearing before any determination that a juvenile offender should be tried as an adult. Kent does not hold that the juvenile court must not be given discretionary power to make this determination. On the contrary, the opinion recognizes that the statute of the District of Columbia there in question gave the juvenile court “a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached.” The statute in question authorized a transfer in the discretion of the juvenile court without specifying the factors to be considered, unlike section 54.02 of the Texas Code, which does specify such factors. Nevertheless, the Supreme Court held that the District of Columbia statute “does not confer upon the Juvenile Court a license for arbitrary procedure.” Accordingly, the court remanded the cause for further proceedings under that statute. In the light of that decision, we find no denial of due process in section 54.02. Therefore, for the reasons previously stated, we remand the present case for further proceedings in accordance with that section and other relevant provisions of the Texas Code.

3. Denial of Discovery

Finally, appellant complains that the juvenile court acted arbitrarily in quashing his notice to take the deposition of Sergeant Gus Rose, an investigating officer who later became a witness for the State at the transfer hearing. Counsel contends that if he had been permitted to take this deposition, new evidentiary leads might have been developed that would have assisted him in preparing for the transfer hearing and might have resulted in a different judgment. Counsel also argues that a deposition would have allowed for more effective cross-examination of Sergeant Rose.

Although section 51.17 of the Code provides that the Texas Rules of Civil Procedure govern proceedings involving delinquent children and children in need of supervision, it is doubtful whether all the discovery procedures available under the Rules are applicable. Although we find no Texas authority on this question, courts in other jurisdictions have held that the trial judge may restrict the scope of discovery more in a juvenile case than in other civil cases. Joe Z. v. The Superior Court of Los Angeles County, 3 Cal.3d 797, 91 Cal.Rptr. 594, 478 P.2d 26 (1970); Hanrahan v. Felt, 48 Ill.2d 171, 269 N.E.2d 1 (1971). In the present case, Sergeant Rose testified fully at the transfer hearing, and appellant has not undertaken to demonstrate any particular in which he was surprised by the testimony or otherwise prejudiced by lack of opportunity to take the deposition. Consequently, we hold that appellant has failed to show reversible error in this respect.

Judgment

We conclude that the issue of temporary hospitalization is separable from the issues at the transfer hearing without unfairness to the parties. Accordingly, under the provisions of Rule 434, Texas Rules of Civil Procedure, we reverse the order of transfer aiid remand the case with instructions to initiate proceedings for temporary hospitalization under section 55.02 of the Family Code and in accordance with the applicable provisions of the Mental Health Code. If after such proceedings the court determines that temporary hospitalization for observation and treatment is required, the court will order such temporary hospitalization and will suspend proceedings for transfer, as required by section 55.02(d), and, after receiving a report of such temporary hospitalization, will hold a new hearing on the issue of discretionary transfer. On the other hand, if the court determines that such temporary hospitalization is not required, then, without further hearing, the court will transfer appellant to a criminal court for trial in accordance with section 54.02.

Reversed and remanded with instructions.

      . All references are to Tex.Fam.Code Ann. (Vernon 1975), unless otherwise indicated.


author: HUGHES, Justice.

text:
    B. A. MORTGAGE CO., INC. and Metro Development, Inc., Appellants, v. Lawrence E. McCULLOUGH, Appellee.
    No. 18143.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 15, 1979.
    Rehearing Denied Dec. 27, 1979.

      Thompson, Knight, Simmons & Bullion and William R. Wright, Dallas, for appellants.
    Thomas A. Melody, Dallas, for appellee.
   OPINION

HUGHES, Justice.

McCullough, an adjoining landowner of B. A. Mortgage Co., Inc., sued for damages for loss of lateral support arising out of the entry onto his land by Metro Development, Inc., B. A.’s agent. Metro graded McCullough’s lot down to the level of a private street which ran along the side of B. A.’s lot. McCullough alleged damages for loss of lateral support and sought the amount it would cost to build a retaining wall to re-, store his land to its original condition. B. A. and Metro appeal from a judgment in favor of McCullough. The only contested issues here are the measure of damages and the sufficiency of the evidence supporting the damage finding.

We reverse and remand for a determination of damages sustained by McCullough.

Before 1974, Don Loftis borrowed the purchase money from B. A. to acquire a tract of land where he proposed to build an apartment complex called the Appian Way. The land was situated alongside McCullough’s land. Loftis entered upon McCullough’s land and graded it down to a level where it matched the contour of a private street being built in the Appian Way complex. Loftis’ entry extended for a distance of about thirty feet along the property line at the eastern most end. The grading resulted in a ten foot reduction in the vertical height. This tapered down along the property line to the western end where the vertical drop was approximately three feet.

During 1974 Loftis defaulted on his loan payments. B. A. foreclosed and took over completion of the apartment project. During completion, Metro, working as contractor for B. A., reentered McCullough’s property and performed some more grading. This second entry caused an additional two foot drop in vertical height at the eastern end of the affected area and a one foot vertical drop at the western end. On April 9, 1975, McCullough filed suit against B. A. and Metro praying for damages in the sums of $12,500.00 for construction of a concrete wall to shore up his property; $2,500.00 for grading; $1,250.00 for replacement of top soil; and $20,000.00 as exemplary damages, for a total of $36,250.00. By supplemental petition plaintiff also prayed for the additional sum of $15,000.00 for lateral support loss, making a new total of $51,250.00.

Neither B. A. nor Metro are contesting the finding of their liability. They complain that the trial court used an incorrect measure of damages. They assert that in a case of damage to realty resulting from the removal of lateral support, the correct measure of damages is the diminution in the fair market value of the property affected, taken immediately before and after the removal of the lateral support, unless the cost of repairs is a lesser amount. In such case the cost of repair is the correct measure of damage. B. A. and Metro contend that there was no change in the fair market value of the land, and accordingly, McCullough should take nothing by his lawsuit.

We do not agree. B. A. and Metro correctly state the general rule used to determine the measure of damages where a permanent injury to land has occurred, which is that the measure of damage is the diminution of value of the land, unless the injury can be repaired at less cost, in which case, the measure becomes that lesser figure. Atlas Chemical Industries, Inc. v. Anderson, 514 S.W.2d 309, 318 (Tex.Civ.App.— Texarkana 1974, aff’d at 524 S.W.2d 681 (1975)); 2 C.J.S. Adjoining Landowners § 35 (1972); 25 C.J.S. Damages § 84 (1966); 1 Tex.Jur.2d Adjoining Landowners § 10 (1959); 1 Am.Jur.2d Adjoining Landowners § 75 (1962), and Annot., 36 A.L.R.2d 1253, 1255 (1954).

As with most general rules, however, there is an exception. The secondary sources cited above note that the general rule should be varied so as to obtain a just and equitable result when the strict adherence to the general rule would result in an outcome which would be unfair or unjust. See Annot., 36 A.L.R.2d 1253, 1255, 1265-78 (1954); 1 Am.Jur.2d Adjoining Landowners § 75 (1962). The rationale behind this exception is that the purpose of the general rule is to make the injured plaintiff whole where the general rule will not do so. If an unjust result will follow from the application of the general rule; the most reasonable measure of damages under the circumstances is to be used as an alternative. As noted by one commentator, “the reasonableness of applying a given measure of damages in a given case unavoidably hinges on the peculiarities of the case.” Annot., 36 A.L.R.2d 1253, 1255 (1954).

We hold that the circumstances of this case are such that the facts warrant a deviation from the general rule as expressed above. If we were to uphold the contentions of B. A. and Metro, we would allow them to escape liability after causing a radical change in the land which belonged to McCullough. It would clearly result in an unjust, unfair and inequitable outcome to allow B. A. and Metro to grade McCullough’s land and cause change he did not desire; then hold that B. A. and Metro escape any liability simply because the unwanted changes effected did not bring about a diminution in the value of the land involved. The appellants first point of error is overruled.

However, as to the determination of McCullough’s damages we hold the evidence insufficient to support the judgment. The findings of fact made by the trial court conflict with the evidence. For this reason, the finding is so against the greater weight and preponderance of the evidence as to be clearly erroneous, which places it in a category where it is insufficient to support the judgment. Mr. Roy Christ, the expert witness presented by McCullough, testified that the cost of construction of a retaining wall would be some $27,500.00. It is very clear from the context that this figure was a 1978 cost estimate. Later, during cross examination of Christ, opposing counsel clarified that the $27,500.00 figure was based on 1978 costs. Cross examination also shows that the figure would have been much lower if it were based on costs as they existed three years before the suit was tried.

This evidence is at a complete variance with the findings of fact. The findings of fact state that the court found that the cost to construct a retaining wall was $27,500.00 in 1975. This finding is against the great weight and preponderance of the evidence, and is properly attacked by a point of error complaining of insufficient evidence. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 366 (1960). Accordingly, we sustain the third point of error. Since the judgment is against the great weight and preponderance of the evidence, we are left with no alternative, in light of explicit instructions from the Supreme Court, except to remand for a new trial on the issue of damages, as liability is not an issue in this appeal. Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884 (1946). It would not be within our power to attempt to render a judgment based on that evidence which did support the judgment or which we think is the evidence supporting the intended result desired by the trial court. Childre v. Casstevens, 148 Tex. 297, 224 S.W.2d 461 (1949). See also Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 369 (1960).

Having reversed and remanded for a determination of the damages as they existed in 1975, we need not consider the second, fourth and fifth points of error. However, as these issues are likely to be encountered on retrial, we will discuss them. The second point of error complains that the trial court erred by awarding McCullough more recovery than he sought. We do not agree with this contention. McCullough plead for a total of $51,250.00 in his original and supplemental petition as detailed above. The judgment was for $12,500.00 as cost of constructing a retaining wall plus $1,250.00 for replacement of soil. Findings of fact and conclusions of law were made by the trial court. The court found that in April, 1975, the reasonable cost in Tarrant County, Texas of constructing the required retaining wall was $27,500.00, the reasonable cost of the back-fill of dirt was $19,-680.00 and that the costs have increased at the rate of 15% per year from April of 1975. The court also found that the reasonable proportionate cost of the retaining wall due to excavation caused by Metro after repossession is in the amount of $12,500.00, and that the reasonable proportionate cost of back-fill due to excavation caused by these defendants after repossession was at least $1,250.00. It is therefore clear that the judgment was for the amount of damages caused solely by B. A. and Metro and was within the amount plead.

The fourth point of error complains of the apportionment of the damages between Loftis, who was not a party to the lawsuit, and the defendants. This issue is now moot in view of our reversal of the judgment which makes the apportionment. When he instituted suit, McCullough was free to pursue either B. A., Metro, or Loftis, or any combination of the three. In the first trial, since he chose to pursue only B. A. and Metro as tort feasors, it was within the discretion of the trial court to apportion the damages between parties, even absent ones, in any reasonable manner consistent with the evidence. This same principle applies on remand if a correct damage figure is determined, assuming that evidence is present to support any apportionment of the damages.

In their fifth point of error, B. A. and Metro complained of the award of prejudgment interest. This particular point of error is also rendered moot on this appeal. However, it is an issue which is likely to arise again on remand. The trial court awarded McCullough prejudgment interest even though this interest had not been specifically prayed for in the plaintiff’s pleadings. B. A. and Metro complain that this was improper in light of the general nature of McCullough’s pleadings and the fact that no request was made for such interest. McCullough named a number of specific items, but not interest, in his prayer and then concluded by requesting “such other and further relief to which this Plaintiff may be justly entitled.”

We agree with B. A. and Metro. This prayer for relief was insufficient to support an award of prejudgment interest. Though the cause of action involved in this case may be one of a species for which prejudgment interest can be awarded, it is clear that the word “interest” must appear somewhere in the plaintiff’s prayer for relief in order to recover prejudgment interest. Black Lake Pipe Line Co. v. Union Const. Co., 538 S.W.2d 80, 96 (Tex.1976). In the present state of the pleadings we are of the opinion that McCullough is not entitled to recover prejudgment interest.

A general prayer for relief may be sufficient to allow prejudgment interest if all that is requested is “interest”, with no further identification of the rate, amount on which it is to be based, and so forth, but merely requesting “such other and further relief” to which plaintiff feels justly .entitled is too general to support an interest award. The line must be drawn somewhere, and “such other and further relief” does not put the defendant on any notice that prejudgment interest is sought. Therefore, this is a good place to impose the outer limit on the paucity of the pleadings necessary to allow the recovery of prejudgment interest. McCullough never crossed this line.

We reverse and remand to the trial court for a determination of damages which B. A. and Metro caused when they removed the lateral support from McCullough’s land.


author: KELLY, Judge.

text:
    CALDWELL PAINT MANUFACTURING COMPANY, Incorporated, a corporation, Plaintiff-Respondent, v. Ron LEBEAU and Gail Lebeau, his wife, d/b/a Ron Lebeau Painting Company, Defendants-Appellants.
    No. 39417.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 26, 1979.

      Harold E. Horsley, Jr., Valley .Park, for defendants-appellants.
    R. W. Jacobsmeyer, Clayton, for plaintiff-respondent.
   KELLY, Judge.

The appellants, Ron LeBeau and Gail Le-Beau, husband and wife, d/b/a Ron LeBeau Painting Company, appeal from an order of the Circuit Court of St. Louis County setting aside a previous order of said court vacating a “default judgment” entered against the appellants, who were defendants in the trial court. For reasons hereinafter set out we conclude that the judgment should be affirmed.

The facts are rather simple. Respondent, plaintiff in the trial court, instituted this action on January 14, 1976, against the appellants, doing business as Ron LeBeau Painting Company, for $14,250.77 for painting materials allegedly sold to appellants and for which they allegedly failed to pay, despite demand that they do so. The appellants are residents of Garland, Texas.

Service was had upon the appellants pursuant to the provisions of § 506.500 RSMo. 1969. On April 23, 1976, Melvin D. Benitz entered his appearance as attorney for the appellants and on May 22, 1976, filed an Answer and Counterclaim for them. The Answer constituted a general denial and alleged, as an affirmative defense, discharge of the debt in bankruptcy. The counterclaim sought damages for defective and unusable merchandise delivered to appellants by respondents plus labor in a sum of $9,000.00.

On July 15, 1976, appellants’ counsel of record amended the counterclaim by adding an allegation that the respondent allowed employees of appellant to purchase paint brushes, equipment and other painting paraphernalia without appellants’ consent so that appellants were damaged in the amount of $5,000.00. The prayer of the counterclaim was amended to seek damages in the sum of $14,000.00.

Prior to this amendment, respondent directed interrogatories to each of the appellants on May 25,1976, and on June 21,1976, filed a motion for sanctions against them by reason of their failure to answer the interrogatories. This motion for sanctions was continued on June 29, 1976, until July 16, 1976. On July 16, 1976, the motion for sanctions was called up, heard and sustained. Subsequently, on August 25, 1977, upon motion by appellant, the record was corrected, nunc pro tunc, to show that the Answers to Interrogatories directed to appellants were filed on July 15,1976.

On October 12,1976, respondents filed its reply to appellants’ counterclaim, but we are not aware of what it alleged because it has not been incorporated into the record on appeal.

On March 2, 1977, the cause was placed on the trial calendar of April 18, 1977.

On April 15, 1977, Mr. Benitz filed a motion for leave to withdraw as appellants’ attorney on the grounds “Defendants failure to cooperate, answer correspondence, or to communicate their whereabouts.” His withdrawal was approved by the judge of Division No. 1 of the Circuit Court in which division of the multi-judge circuit the cause was pending.

On April 18, 1977, the cause was called, the respondent appeared by counsel and announced ready for trial, but the appellants did not appear in person or by counsel. The trial court thereupon struck appellants’ pleadings by reason of their failure to appear for trial, entered an interlocutory judgment in Default, and set the cause for hearing on April 28, 1977.

On April 28, 1977, a hearing was held by the Judge of Division No. 15 of the Circuit Court of St. Louis County, sitting in Division No. 1 thereof. Appellants did not appear in person nor by counsel.

At this hearing Melvin C. Caldwell, president of respondent, testified from the business records of respondent, relative to merchandise sold to the appellants by respondent and which was the basis for this claim. According to his testimony the appellants owed respondent $14,207.77 plus interest in an amount of $1,496.33, a total of $15,-757.10. He also testified that the respondent corporation had demanded payment of the amount owed but had received no affirmative response from the appellants.

With respect to the debt allegedly discharged in bankruptcy, Mr. Caldwell testified that during 1968 and 1969 the appellants owed respondent $8,691.44 and that this debt was discharged in the bankruptcy proceedings. However, several years thereafter, the appellants came to him asking that respondent again sell goods to them at a time when Mr. LeBeau was working on a fairly large subdivision. When this request for further sales of merchandise was made, Mr. LeBeau promised “unconditionally” that he would repay the $8,691.41 debt which had been discharged in bankruptcy if respondent would again extend him credit. On the basis of this promise respondent extended further credit to the appellants, including the amount claimed in this action.

The trial court entered judgment in favor of the respondent and against the appellants in the sum of $15,747.10, plus costs.

On May 27, 1977, Harold E. Horsley, Jr., entered his appearance as counsel for the appellants and simultaneously filed a motion to set aside the default judgment. This motion was verified by the appellants before Mr. Horsley as the notary public on the same date. The grounds for setting aside the default stated in the motion were that the appellants had answered respondent’s petition and had denied liability for. the major portion of its claim; that they had filed a suggestion of bankruptcy to a portion of the claim; that they had filed a counterclaim; that they had answered interrogatories posed by respondent; that their lawyer did not inform them of the trial date despite the fact he had their address and telephone number at their residence in Garland, Texas; that they stood ready, willing and able to try the case on the date it was set for trial had they been so informed by their attorney, but that they were not aware that their attorney was withdrawing from the case only “four” days prior to the trial setting; and that said information was not communicated to them until they were called by their former counsel and advised that a judgment had been taken against them.

Notice of the filing of this motion was “mailed” to respondent’s counsel on May 27, 1977, but no notice was served upon him calling up the motion as required by Rule 44.01(d).

On the same day, May 27, 1977, the motion was presented to the judge of Division No. 6 of the Circuit Court of St. Louis County, who sustained the motion and entered an order setting aside the “default judgment” and holding it for naught. This order does not contain any recitation that either respondent or its counsel was present at the time the motion was presented nor when the order was entered.

Subsequently, on June 8, 1977, respondent filed a motion to vacate the order of May 27,1977, setting aside the judgment of April 28, 1977, together with a notice of hearing of said motion. We discern this from the Minutes of Proceedings in the record on appeal despite the fact neither the respondent’s motion nor the notice have been included in the record. From these Minutes we also learn that the time for notice of hearing on this motion was shortened “for good cause shown” to June 10, 1977, by the judge of Division No. 1 of the Circuit Court of St. Louis County.

On June 8, 1977, appellants’ counsel filed a motion to reinstate Answer, Counterclaim and Other Pleadings.

On June 10, 1977, the motion to vacate was heard by the judge of Division No. 1 and taken as submitted. The parties filed memoranda of law stating their respective positions, and on June 14, 1977, the order was entered vacating the order of May 27, 1977, and ordering that the judgment entered on April 28, 1977, in favor of the respondent and against the appellants “be allowed to stand.” Appellants’ motion to reinstate their pleadings was denied.

On June 22, 1977, appellants filed their notice of appeal from the order of June 14, 1977.

Appellants have contended throughout that the judgment entered in this cause is an interlocutory judgment on default authorized by Rule 74.045. Respondent, on the other hand, argues that it is a judgment on the pleadings and the evidence entered upon the failure of the appellants to appear in person or by counsel. The determination of this question is crucial to this appeal because it either broadens or restricts the remedies available to the appellants.

The parties do not raise the due process issue inherent in the action of the trial court striking their pleadings upon the failure of the appellants to appear on the date the cause was set for trial; they apparently concede that it has such power. We therefore do not decide that question, but proceed to reach our decision on the assumption that the trial court possesses the power to impose this sanction.

The term “default judgment” has varied meanings, dependent upon the context in which it is employed. When used in the context of Rule 74.045, it refers to an interlocutory judgment where a defendant has failed to file an answer or other pleading within the time prescribed by law or the rules of practice, or has failed to serve a copy thereof upon the adverse party or his attorney when required to do so. The term has also been employed in cases where the pleadings of a party have been stricken pursuant to the authority of Rule 61.01 by reason of a failure or refusal to make discovery. Bussmann v. Bussmann, 573 S.W.2d 462 (Mo.App.1978); In re Marriage of Dickey, 553 S.W.2d 538, 539[1] (Mo.App.1977). And the term has been applied to judgments entered after an evidentiary hearing where a defendant has been served with summons, filed an answer and therefore was not in default nihil dicit, but the trial court, after withdrawal of the defendant’s attorney and where defendant did not appear on the date the cause was set for trial, proceeded to take evidence under the pleadings and entered judgment thereon in favor of the plaintiff and against the defendant. J. G. Jackson Associates, Inc. v. Mosley, 308 S.W.2d 774, 777[3] (Mo.App.1958); Hamm v. Hamm, 437 S.W.2d 449, 452[1] (Mo.App.1969).

Despite the phraseology employed by the court when the appellants failed to appear on April 18,1977, for trial, we are of the opinion that the judgment in this case is not a “default judgment” as that term is employed in Rule 74.045, because appellants had filed an Answer and had entered their general appearance and were not in default as the term is used in that Rule.

Rather, we conclude that the “default judgment” in this case is akin to the default judgment entered in J. G. Jackson Associates, Inc. v. Mosley, supra and Hamm v. Hamm, supra. We reach this conclusion because prior to entering judgment the trial court heard evidence directed not only to establish respondent’s claim but also to overcome the affirmative defense pleaded by appellants in their Answer, despite the fact this Answer had been stricken.

However, even if the trial court possessed the power to strike appellants’ pleadings, as they have conceded, then the principles applicable to those judgments entered where the trial court has ordered a party’s pleadings stricken as a sanction under Rule 61.01 by reason of said party’s refusal to make discovery would apply in this case. The question to be reviewed would be whether the action of the trial court in imposing the sanction and rendering the cause uncontested and subject to judgment constituted an abuse of discretion. In re Marriage of Dickey, supra.

Regardless of which kind of default judgment this is, the crucial issue is the effect of the filing of appellants’ motion to set aside judgment by default on May 27, 1977, 29 days after the judgment entry.

Rule 69.01(b) provides that the right to trial by jury is waived if a party fails to appear at trial, and the cause may then be tried by the court without a jury. In court tried cases a party may, but need not, file a motion for new trial or a motion to amend the judgment and opinion, or both. When however a party chooses to file a motion for new trial said motion must be filed not later than 15 days after the entry of judgment. Rule 73.01. Unless a motion for new trial or a • motion to amend the judgment and opinion is timely filed, the judgment in a court tried case becomes final thirty days after entry of judgment, and a party desirous of taking an appeal from said judgment must file a notice of appeal not later than ten days thereafter. Rule 81.04; State ex rel. Nilges v. Rush, 532 S.W.2d 857, 859[3] (Mo.App.1975).

Because appellants’ motion to set aside the judgment by default was filed 29 days after entry thereof, the motion could not constitute a timely filed motion for new trial which would extend the time within which a notice of appeal might be filed. Rather, this motion could serve only as a suggestion to the trial court to exercise the powers conferred upon it by Rule 75.01 to vacate the judgment provided that power was exercised on or before May 28,1977, 30 days after the judgment entry. State ex rel. Campbell v. Anderson, 536 S.W.2d 200, 201[3] (Mo.App.1976).

The motion was not presented either to the judge of Division No. 1, who entered the order striking appellants’ pleading and setting the cause for trial on default, or the judge of Division No. 15, who actually heard the evidence and entered the judgment. The record on appeal reveals no reason why the motion was not presented to either of those judges but was presented to the judge of Division No. 6 of said court for consideration.

Appellants concede that respondent was given no notice that the motion to set aside was going to be filed on May 27,1977, other than the certification contained on said motion that a copy of same was being mailed to respondent’s attorney on that same date, May 27, 1977. They also concede that the motion was filed, presented and heard ex parte on the same day and, despite the lack of any notice calling up the motion for hearing or any order shortening the time for same, sustained on the same day.

The judge of Division No. 1, in ruling on respondent’s motion to set aside the order of the judge of Division No. 6 setting aside the judgment of April 28, 1977, found that “Defendant failed to give plaintiff reasonable notice, and an opportunity to be heard on Defendants’ Motion to Set Aside the Default Judgment.”

It is settled law in this State that although the trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify said judgment for good cause within that period of time, Rule 75.01, the power and jurisdiction to do so is subject to the qualification that the party to be adversely affected be given reasonable notice and an opportunity to be heard on the factors inducing the court’s intended action. Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 574[14] (banc, 1939); Hoppe, Inc. v. St. Louis Public Service Co., 235 S.W.2d 347, 348[2] (Mo.banc 1951); State ex rel. Murphy v. Aronson, 330 S.W.2d 140, 143[1] (Mo.App.1959); Summers v. Clayton, 500 S.W.2d 28, 30[2] (Mo.App.1973).

This concededly was not done in this case and therefore the trial court lacked jurisdiction to enter the order of May 27, 1977, setting aside and holding for naught the judgment of April 28, 1977, in favor of the respondent and against the appellants, and said order is, and was since its entry, a nullity.

We find no error in the order of the judge of Division No. 1 from which this appeal was taken in holding that the order of May 27, 1977, be set aside.

Appellants raise two points on appeal, but we have no jurisdiction to entertain those points.

We reach this conclusion because, as we have stated, the motion to set aside judgment by default was not filed in time to constitute a motion for new trial; it merely served as a suggestion to the court to exercise the powers authorized by Rule 75.01 and therefore did not extend the time within which appellants were required to file a notice of appeal if the trial court did not act within 30 days of the date on which the judgment was entered.

The trial court's apparent exercise of its jurisdiction may have misled appellants, but as a matter of law its action was void and unlawful. Because respondent was denied notice and an opportunity to be heard, the court lacked jurisdiction to proceed and any action it took was a nullity. Savings Trust Co. of St. Louis v. Skain, supra, and other cases cited supra, on this point. Having acted unlawfully, we believe that the trial court, in law, did not act at all and therefore the 30 days within which it could have exercised the powers conferred upon it by Rule 75.01 expired and the judgment of April 28,1977, became a final judgment.

To prosecute an appeal from a final judgment of a trial court it is jurisdictional that a notice of appeal be filed with the clerk of the trial court within 10 days after the judgment or order appealed from becomes final. Watkins v. Watkins, 556 S.W.2d 215[2] (Mo.App.1977). This judgment became final on May 29, 1977, and appellants’ notice of appeal was not filed until June 22, 1977. The intervening motion by respondent to set aside the order of court of May 27, 1977, did not extend the time for the filing of appellants’ notice of appeal beyond the 6th day of June, 1977, because that order was of no legal consequence.

Appeal dismissed.

WEIER, C. J., and GUNN, P. J., concur.

      . Respondent’s Motion to Set Aside the Order of May 27, 1977, is not included in this record on appeal so we must assume that this was one of the grounds stated in the motion; however, even had it not been, this is a jurisdictional question, as we point out.