author: YOUNG, Justice.

text:
    Suzanne Marie TREVINO, Appellant/Cross Appellee, v. Jorge H. TREVINO, Appellee/Cross Appellant.
    No. 1175.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 31, 1977.

      Orrin W. Johnson, Johnson & Davis, Har-lingen, for appellant.
    John E. Lewis, Adams, Graham, Lewis, Jenkins, Jones & Graham, McAllen, for ap-pellee.
   OPINION

YOUNG, Justice.

This is an appeal from a judgment granting a divorce and dividing property. Suzanne and Dr. Jorge Trevino were married on June 23,1973; the final judgment granting the divorce and dividing their property was entered on May 28, 1976. Both parties filed motions for new trial which were overruled by the trial court on August 30, 1976.

Trial was to a jury which found that the marriage had become insupportable and that the Doctor had been guilty of cruel treatment toward Suzanne. The jury also made fact findings as to values of community property and improvements and that Suzanne should recover $5,700.00 in attorney’s fees from the Doctor. The jury further found that the community estate should be divided equally, one-half to each spouse. In accordance with those findings the trial court granted a divorce to the Doctor and ordered the property divided.

Both Suzanne, by sixteen points of error, and the Doctor, by four cross points, complain on appeal primarily about the classifications and the valuations assigned to the property as provided in the trial court’s judgment. So both parties appeal. We affirm.

In our consideration of this appeal, we are first confronted with the resolution of the Doctor’s motion to dismiss Suzanne’s appeal. The motion was filed on March 10, 1977, the same day of but prior to oral submission of this case. The statement of facts and transcript had been filed on November 12, 1976, and December 28, 1976, respectively. The substance of the motion is that Suzanne is estopped to attack the judgment of the trial court because she accepted a $5,000.00 payment under the judgment. For support the Doctor relies on Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950); Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App.—San Antonio 1975, writ dism’d); Lipshy v. Lipshy, 525 S.W.2d 222 (Tex.Civ.App.—Dallas 1975, writ dism’d).

But the Doctor as a result of his delay in filing this motion has waived his right to assert dismissal on the above stated grounds. Rule 404, T.R.C.P., requires that all motions relating to the informalities of bringing appeals must be filed within thirty days after the filing of the transcript or the objection is waived. The Doctor’s delay, therefore, clearly resulted in a waiver of any rights to dismissal that might have existed. Seber v. Glass, 258 S.W.2d 122 (Tex.Civ.App.—Fort Worth 1953, no writ); DeLange v. Ogden, 106 S.W.2d 385 (Tex.Civ.App.—San Antonio 1937, writ dism’d).

Further, we find that this case meets the exception to the rule of law that a litigant cannot treat a judgment as both right and wrong by voluntarily accepting benefits and prosecuting an appeal therefrom. Carle v. Carle, supra. In Haggard v. Haggard, 550 S.W.2d 374 (Tex.Civ.App.—Dallas 1977, no writ) that exception is stated as follows:

“. . . We are of the opinion that a spouse should not be estopped from appealing an award pursuant to a divorce unless the other spouse would be prejudiced by the appeal to the extent that the wrong could not be remedied upon retrial, or unless the appealing spouse has clearly acquiesced in the judgment. . . .”

In Haggard, the Court went on to note that mere possession of a portion of the community estate awarded does not conclusively establish acquiescence to a judgment. Furthermore acceptance of payment could be based on financial need and thus not make a case for voluntary acceptance as required by the doctrine of estoppel. It was also there reasoned that the acceptance of cash benefits under a judgment do not necessarily prejudice the rights of the other spouse. The Court pointed out that upon redivision of property, if necessary, that the money awarded could be taken into consideration and if there were an insufficient cash award to repay the money accepted, the assets awarded the spouse could be ordered sold to meet the debt.

Suzanne’s acceptance of the $5,000.00 awarded was based upon financial need. Further, it is a cash award only and on final distribution of the property Suzanne will have sufficient assets to cover the award. The Doctor’s motion to dismiss is overruled. Cherokee Nation v. United States, 355 F.2d 945, 174 Ct.Cl. 131 (U.S.Ct.C1.1966); Haggard v. Haggard, supra; McCartney v. Mead, 541 S.W.2d 202 (Tex.Civ.App. —Houston [1st Dist] 1976, no writ).

The first group of points presented in this appeal (Suzanne’s points 1, 2, 3, 4 and 5 together with the Doctor’s point 1) deal with the value given to the professional association stock owned by the parties. The jury determined the value to be $3,500.00. The trial court pursuant to this value and to the court’s recited scheme of equal division of the community property awarded the stock to the Doctor and an offsetting cash award of $1,750.00 to Suzanne.

The Doctor as cross appellant challenges this action of the trial court by asserting that the stock was the Doctor’s separate property. We do not agree.

It is the general rule that all property on hand when the marriage is dissolved is presumed to be community property. Tex.Family Code Ann. § 5.02. To overcome this presumption the party claiming the property as his or her separate property must show by clear and satisfactory evidence that it is his or her separate property. Tarver v. Tarver, 394 S.W.2d 780 (Tex.Sup.1965); In Re Marriage of Greer, 483 S.W.2d 490 (Tex.Civ.App.—Amarillo 1972, writ dism’d). We feel that the evidence as presented does not overcome this presumption.

The professional association in question was formed in August and September of 1974 (during the marriage) pursuant to the instructions of Robert Chaffin, a Houston attorney retained to form the corporation. Mr. Chaffin on August 26, 1974, gave a letter to the doctors involved which contained the following instructions:

“. . . Each of you will also be required to make a contribution of $500 to the Association as payment for stock which will be issued. . . .”

Dr. Trevino admitted twice that he complied with this direction; the first instance in his director’s consent of September 1, 1974, and the second instance in the Doctor’s individual consent as a shareholder. The Doctor further testified as follows:

“Q Now, Mr. Chaffin told you — told us, in his letter to you, with reference to forming this corporation that you should implement all of these things that were mentioned in this August 26th letter and, you subsequently implemented these things; did you not?
A Right.”

Dr. Trevino testified that he never signed a check or any other consideration such as a check for the stock but admitted that Mrs. Molina, his bookkeeper, might have issued the check. This testimony does not meet his burden of proving by clear and convincing evidence that the stock was the Doctor’s separate property. The Doctor’s point 1 is overruled.

Suzanne as appellant challenges the jury’s value finding by stating that as a matter of law the value was established to be $57,300.00 and that the value finding of $3,500.00 was against the great weight and preponderance of the evidence.

As a general rule the testimony of experts is not binding on the jury. Suzanne’s contention that the value of the stock is established as a matter of law is based on the exception to that rule that where the nature of the expert’s testimony is such that the trier of the facts must be guided by such opinion, it is conclusive. Exxon Corp. v. West, 543 S.W.2d 667 (Tex.Civ.App.—Houston [1st Dist] 1976, writ ref’d n.r.e.); Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Tex.Civ.App.—Austin 1947, writ ref’d n.r.e.). In Exxon, the court held that expert testimony on the amount of gas held in a reservoir was conclusive and in Scott, a doctor’s testimony on the cause, diagnosis and treatment of a disease was held to be conclusive.

In the present case, Suzanne would have us hold that the testimony of Robert May, an actuary, called as an expert to testify as to the value of the corporate stock, was conclusive under the exception announced in Exxon Corp. v. West, supra. Mr. May testified that the value of the stock was $57,300.00. Mr. May’s opinion was that one-third interest in the corporate stock was worth $40,000.00 (subject to a $700.00 discount for time payments). Further, upon the redemption of Dr. Pena’s stock (Dr. Pena left the association in 1975 after a disagreement) the shares owned by the Trevinos increased from one-third to one-half interest with an appreciation in value of $18,000.00, being one-half of the cost of the redemption.

Expert testimony on value is not binding upon jurors. Maddox v. Maddox, 489 S.W.2d 391 (Tex.Civ.App.—Houston [1st Dist] 1973, no writ); Tuttle v. State, 381 S.W.2d 330 (Tex.Civ.App.—Texarkana 1964, writ ref’d n.r.e.); Steele v. City of Anson, 229 S.W.2d 948 (Tex.Civ.App.—Eastland 1950, no writ). Therefore, the testimony of Mr. May as to the value of the corporate stock was not binding on the jury. Suzanne’s contention that the value of the stock was established as a matter of law is without merit.

Suzanne in her alternate theory of error argues that the jury’s finding is so against the great weight and preponderance of the evidence as to be clearly unjust. We disagree.

Robert May testified for Suzanne and stated that the value of the stock was $57,-300.00. This value was based on testimony previously summarized in this opinion. To corroborate this testimony Suzanne introduced the Stock Purchase Agreement which required the stock to be redeemed by the corporation at one-half of the Doctor’s annual salary on the death of a stockholder and at one-third of his annual salary if terminated by the Association. To show how this redemption plan worked, testimony was elicited which showed that Dr. Pena received $36,000.00, or one-third of his annual salary, for his share of the stock when he retired from the professional association because of a disagreement.

The Association provided the following benefits to each of the doctors: a car with insurance and payment for mileage, life insurance, reimbursement for all medical expenses, and retirement and profit sharing plans. In forming the Association and disbursing the partnership all debts of the partnership were paid off and the remaining accounts receivable were transferred to the Association without regard to their col-lectability. The value of the Doctor’s share of the accounts receivable was shown to be $45,000.00.

Evidence which supports the jury’s determination of value less than $57,300.00 included the following. Doctor Trevino purchased his interest in the Association for $500.00 and the Association had been in existence only since September 1, 1974. The Association was forced to borrow money to purchase Dr. Pena’s stock pursuant to the agreement. The Association did not own any assets other than the good will of the individual doctors employed by it. The stock of the Association could not be bought or sold by anyone except the Association or doctors employed by the Association.

Further, as previously noted, the Stock Purchase Agreement value was based on the salary of the doctor. Paragraph 3 of the Employment Agreement provided that a doctor’s salary be based on present and future revenues of the Association and the present and future performance and productivity of the doctor and that, accordingly, salaries are subject to adjustment, increases or decreases, at the discretion of the Board of Directors.

The purchase price was further limited by the Stock Purchase Agreement in paragraph 23 where the total price to pay for a shareholder’s stock was one-third of the annual salary at the time of termination. Therefore, the acquisition of Dr. Pena’s shares could not affect the value to be paid under the Stock Purchase Agreement.

In approaching a point based upon the sufficiency of the evidence appellate courts may only determine whether the fact finding of the jury is supported by the evidence. Even if we would have found other than what the jury found, we cannot reverse on that basis. The finding must be so against the great weight and preponderance of the evidence as to be clearly wrong. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960). In this case there was evidence of value of $500.00 and further evidence of value of $57,300.00. So the jury finding $3,500.00 was more than the lowest value that could be inferred from the evidence and less than the highest value testified to. Suzanne’s points 1, 2, 3, 4 and 5 are overruled.

The Doctor’s point 2 appears as follows:

“The trial court erred in finding that the parties’ Trevino had a present vested community property interest in the pension and profit sharing plans of the Professional Association and in ordering Jorge Trevino to pay Suzanne Trevino one-half of the present value thereof as found by the jury.”

We are of the opinion that the Doctor’s basis for argument has been removed by the Supreme Court’s decision in Cearley v. Cearley, 544 S.W.2d 661 (Tex.Sup.1976). In Cearley the Supreme Court removed the problem of “vested” versus “nonvested” property interests when it held:

“. . . Pension rights, whether or not vested, represent a property interest; to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding.”

Doctor Trevino also challenges the trial court’s action in dividing the value of the retirement plan now rather than awaiting for it to vest. We find this action to be clearly within the trial court’s discretion. Tex.Family Code Ann. § 3.63. The Doctor’s point 2 is overruled.

The Doctor also asserts error (point 3) in the trial court’s reimbursement of the community estate for the use of community funds to pay the separate property debts of the Doctor. This problem developed as result of the Doctor’s use of the First National Bank of McAllen checking account to pay off antenuptial debts of $8,634.00 to Metropolitan National Bank and $7,331.00 to Banker Investors. We can find no error in the trial court’s reimbursement of the community estate for this sum.

Dr. Trevino managed the parties’ community estate during the marriage including the First National Bank of McAllen checking account and, as such, a trust relationship existed between the Doctor and his wife. Dudley v. Lawler, 468 S.W.2d 160 (Tex.Civ.App.—Waco 1971, no writ); Sibley v. Sibley, 286 S.W.2d 657 (Tex.Civ.App.— Dallas 1955, writ dism’d). Section 202(2)g of the Restatement of Trusts (2d § 1959) states:

“Where the trustee wrongfully uses trust funds in discharging an obligation owed by the trustee individually to a third person, the beneficiary is entitled to be sub-rogated to the rights which the obligee had before the obligation was discharged. A court of equity will afford relief to the beneficiary by putting him in the position occupied by the obligee before the obligation was discharged. . . .”

See also Van v. Webb, 147 Tex. 299, 215 S.W.2d 151 (1948); Parmeter v. Parmeter, 348 S.W.2d 51 (Tex.Civ.App.—Dallas 1961, no writ); 57 Tex.Jur.2d Trusts Sec. 89 (1964). The trial court, therefore, did not abuse its discretion in reimbursing the community estate for the payment of the Doctor’s separate debts from community funds.

Doctor Trevino contends that fraud was not alleged by the respondent nor found by the trial court in its judgment. We find the following language of Suzanne’s petition sufficient in the absence of any exception thereto by the Doctor, in light of Waggener v. Waggener, 460 S.W.2d 251 (Tex.Civ.App.—Dallas 1970, no writ):

“During the marriage of the parties a substantial amount of community property was accumulated, most of which was unknown to Mrs. Trevino, who is a housewife with very limited knowledge of the nature and extent of the parties’ holdings.
******
Mrs. Trevino is informed and believes that meaningful portions of the parties’ community estate may have been diverted from the community into the hands of third parties by Dr. Trevino, in fraud of Mrs. Trevino’s rights. Further, Mrs. Tré-vino has adequate reason to believe that Dr. Trevino is actively concealing substantial amounts of community property in order to avoid a just and fair division of such property with Mrs. Trevino.”

Further, there were no requests for findings of fact or requests for special issues on the matter. Therefore, we must consider all the evidence as a whole, indulging in every reasonable presumption in favor of the facts which will support the judgment. Clearly the evidence supports this action of the trial court. Depuy v. Depuy, 483 S.W.2d 883 (Tex.Civ.App.—Corpus Christi 1972, no writ); Bryant v. Bryant, 478 S.W.2d 602 (Tex.Civ.App.—Waco 1972 no writ). The Doctor’s point 3 is overruled.

The Doctor’s final point (4) complains of the trial court’s reimbursement of the community estate for funds expended for improvements on the Doctor’s residence at 142 West Harvey, McAllen, Texas. A reading of the argument contained within this point shows that the Doctor on appeal is for the first time complaining of the submission of special issues 5 and 6 which issues relate to the residence improvement matter. It is clear that such complaint cannot form the basis for reversal unless objected to at the time of submission. Rule 274, T.R.C.P. Consequently, any error in the submission of special issues has been waived by the failure of the Doctor to properly object.

As error the Doctor further claims that the issue was improperly submitted in that the proper issue would have asked if the community expenditures were greater than the benefits received from such expenditures. The Doctor has stated the correct rule for the determination of reimbursement where expenditures were for interest on prenuptial debts or taxes on separate property. Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943); Ames v. Ames, 188 S.W.2d 689 (Tex.Civ.App.—Galveston, 1945 no writ). The proper rule for reimbursement where funds are expended for improvements on a spouse’s separate property is either the amount of the enhanced value of the separate property by virtue of the improvements or the amount of community funds expended for the improvements, whichever is less. Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935); Harris v. Royal, 446 S.W.2d 351 (Tex.Civ.App.—Waco, 1969, writ ref’d n.r.e.). This is the standard which was incorporated in the issues actually submitted. There could not, therefore, be any error in the submission of these issues even if the Doctor had perfected his point of error.

The Doctor also complains that Suzanne has failed to prove that the improvements to the residence were made with community property. With this assertion we cannot agree. Suzanne testified extensively to the type and cost of improvements. Furthermore the only funds for which reimbursement is sought were those expended from First National Bank of McAllen account. This account, as previously noted, was a community account. Doctor Trevino even testified to paying for a number of improvements out of this account as well as with cash. Appellant’s final point is overruled.

Suzanne’s sets forth a group of points (8, 9, 10, 11 and 12) which assert error in the trial court’s refusal to grant alimony pen-dente lite through the complete appeal of this case; the refusal to order accounting of the Doctor’s earnings from the date of filing until the final decree; the granting of the divorce to the Doctor rather than to Suzanne; and the refusal to require the Doctor to assume Suzanne’s 1976 tax liability. After a complete review of the record we can find no abuse of discretion by the trial court in these matters.

Clearly there is a right to alimony pendente lite pending the appeal of a divorce decree. Ex Parte Hodges, 130 Tex. 280, 109 S.W.2d 964 (1937); Ex Parte Thompson, 510 S.W.2d 165 (Tex.Civ.App.—Dallas 1974, no writ); Ellis v. Ellis, 225 S.W.2d 216 (Tex.Civ.App.—San Antonio 1949, no writ); Williams v. Williams, 60 Tex.Civ.App. 179, 125 S.W. 937 (1910, writ dism’d). The decree must, however, provide for the continuance of alimony penden-te lite. An order of the trial court on October 3,1975, provided that alimony pen-dente lite commence on November 3, 1975, and that it would continue “until final hearing in this cause or until further order of this court.” The trial court on April 2, 1976, entered an order terminating the order of October 3, 1975, as of March 5, 1976, the date of a letter to the parties in which the trial judge indicated that he was granting the divorce. We find no abuse of discretion in this action in view of the language of the original order.

Further, the language of the cases previously cited does not require that alimony orders be continued upon appeal but does allow such. We can find no abuse of discretion, therefore, in denying appellant’s request. This is especially so when the added facts that Suzanne had received her real estate license and her first commission and was entitled to receive $5,000.00 pursuant to the divorce decree all are considered.

Suzanne also complains of the trial court’s denying an accounting for the income of the Doctor and the earnings received from the parties assets from and after the date of the filing of the divorce petition. We can find no abuse of discretion in this action of the trial court either. The parties did not truly have any producing community assets other than the Doctor’s practice. This income was offset by the trial court’s award of alimony pendente lite from November 3, 1975 until the court awarded the divorce. And about the lack of accounting complaint, the facts were fully developed at the rather lengthy trial which lasted from October 17, 1975 until December 3, 1975.

Suzanne additionally argues abuse of discretion by the trial court in its requirement that each party pay his or her tax liabilities of 1976. In support of this position Suzanne cites Cole v. Cole, 532 S.W.2d 102 (Tex.Civ.App.—Dallas 1975). In Cole, the Court held that the trial, court’s refusal to consider the tax consequences of its divorce decree was an abuse of discretion. The present case is distinguishable in that the trial court here did consider the tax liabilities of the parties in dividing the property.

The Doctor was clearly ordered to pay all Federal income tax liabilities of the parties for the calendar year of 1975, and prior tax years, as well as the tax liabilities of the parties on the monies earned and received by the Doctor from all sources including his salary from the professional association. The parties were each ordered to file Federal income tax returns reflecting monies received by each of them during 1976.

Suzanne complains that this order ignores the realities of the present Internal Revenue Code in that she is responsible for one-half of taxes owed by the Doctor on his income up to the date of the divorce. 3 Mertins, Law of Federal Income Taxation explains this as follows:

“§ 19.42. —By Divorce or Separation. The community is terminated in all states by an absolute decree of divorce, . All income earned prior to the date of the divorce in the absence of a valid agreement to the contrary, however, is community and is taxable one-half to the husband and one-half to the wife whether it is received prior or subsequent to the date of the divorce. Each spouse is entitled to deduct one-half of the deductions properly chargeable against such income. The division of the community property in the divorce decree does not affect the liability for community income earned prior to the divorce, . . . ”

Suzanne argues, therefore, that regardless of the trial court’s order she must report one-half of all of the Doctor’s community income. This is simply not correct. The order clearly requires the Doctor to assume all of the tax liabilities for income received from any sources including his salary from the professional association. This requirement was clearly within the trial court’s discretion. Texas Fam.Code Sec. 3.63 (1976); Cole v. Cole, supra; Brooks v. Brooks, 515 S.W.2d 730 (Tex.Civ.App.—Eastland writ ref’d n.r.e.); Vickerstaff v. Vickerstaff, 392 S.W.2d 559 (Tex.Civ.App.—El Paso 1965, no writ).

Suzanne next complains, in the present group of points, of the trial court’s action in granting the divorce to the Doctor, as petitioner, and allowing the Doctor to retain control of the community estate pending appeal. In that regard both parties by their pleadings requested that a divorce be granted. To these complaints we can find no abuse of discretion. See Tex.Family Code Ann. § 3.63. Suzanne’s points 8, 9, 10, 11 and 12 are overruled.

Suzanne in her points 13 and 14 asserts error by the trial court’s failure to submit the following.

“Do you find from a preponderance of the evidence that Dr. Trevino has any interest in any deposits, certificates of deposit, or accounts in Mexico?
You will answer ‘Yes’ or ‘No’.
We, the jury, answer: _
If you have answered the next preceding Special Issue No. 5 ‘Yes’ and only in that event, then you will answer the following Special Issue:
What do you find to be the value of the interest of Dr. Trevino in any such deposits, certificates of deposit, or accounts in Mexico?
You will answer in Dollars and Cents, if any.”

As a general rule a trial court is required to submit each requested special issue raised by the evidence. Rule 279, T.R.C.P. Our courts have held, however, that the proof offered must amount to more than a mere scintilla of evidence and do more than raise a mere suspicion in order to be relied upon as having probative force. Although there be slight testimony, if its probative force is so weak that it only raises a mere surmise or suspicion of the fact sought to be established, such testimony in legal contemplation falls short of being any evidence. Briones v. Levine’s Department Store, Inc., 446 S.W.2d 7 (Tex.Sup.1969); Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 (1955).

The testimony and evidence relating to money deposited in Mexican banks raises no more than a suspicion of its existence as is shown by the following. The Doctor claimed his parents as dependents on his income tax returns. In support of this claim, checks were introduced showing payments to his father in Monterrey, Mexico. Suzanne showed, however, that the Doctor was receiving return payments from his father. Suzanne would further show that the Doctor was impeached when he claimed that he received no financial reports from Mexico and that this established the existence of the account. It is the general rule, however, that testimony which impeaches a witness is not substantive evidence of the fact sought to be shown. Bradley v. Texas & P. Ry. Co., 1 S.W.2d 861 (Tex.Com.App.1928); Atchison, Topeka & Santa Fe Railway Co. v. Denton, 475 S.W.2d 821 (Tex.Civ.App.—Amarillo 1971, writ ref’d n.r.e.).

Suzanne also claims that certain financial notes found on the Doctor’s desk and in the home of the Doctor’s father in Monterrey present sufficient facts to submit an issue to the jury. These notes, however, create no more than a suspicion as to the existence of such account and the failure of the probative value of this evidence is even more evident when the fact that they do not match is brought forth. Together this evidence does no more than create a suspicion as to existence of any bank accounts in Mexico. Appellant’s points 13 and 14 are overruled.

Suzanne next says, in her point 15, that the amount of attorney’s fees found by the jury and awarded by the trial court are against the great weight and preponderance of the evidence. It is clear that the award of attorney’s fees is within the discretion of the trial court in making an equitable division of property. Tex.Family Code Ann. § 3.63; Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950); Merrell v. Merrell, 527 S.W.2d 250 (Tex.Civ.App.—Tyler 1975 writ ref’d n.r.e.). We can find no abuse of discretion, therefore, in the present award. Her point 15 is overruled.

In her point 16, Suzanne attacks the trial court’s division of the property on an equal basis. She says she is entitled to more than one-half. We find that the trial court’s plan of equal division of the property is not inconsistent with Section 3.63 of the Family Code. Consequently there was not abuse of discretion by the trial court’s implementation of that plan. Suzanne’s point 16 is overruled.

Finally, we will discuss Suzanne’s group of points (6 and 7) wherein she asserts error in the trial court’s determination that $17,000.00 (“policy loan”) advanced from the Doctor’s New York Life Insurance policy and deposited in the First National Bank of McAllen was a community debt. It is undisputed that this life insurance policy was the separate property of the Doctor in that the trial court so determined and neither party challenges such finding. The trial court further found that the checking account was a community account.

A loan or debt is a contract by which one party agrees to let another party have the use of a specific sum of money for a definite period with the stipulation that the borrower repay it with or without interest. Shaw v. McShane, 50 S.W.2d 278 (Tex.Com.App.1932, opinion approved). An examination of the loan provisions of the policy in question reveals that there is no requirement that the money be repaid. At most the policy provides that it be forfeited when the indebtedness exceeds the cash value of the policy. Thus it allows for repayment but does not require it. Further, the United States Supreme Court has determined that such loans are not indebtedness-es but are payments. Williams v. Union Central Life Ins. Co., 291 U.S. 170, 54 S.Ct. 348, 78 L.Ed. 711 (1933); Board of Assessors of Parish of Orleans v. New York Life Insurance Co., 216 U.S. 517, 30 S.Ct. 385, 54 L.Ed. 597 (1910); First Nat. Bank of Wichita Falls v. State Life Ins. Co. of Indianapolis, Ind., 80 F.2d 499 (5th Cir. 1935).

The Doctor (as well as Suzanne) was obligated to furnish support for community living, and if no community funds were available (as apparently was demonstrated by the testimony of Mr. Jones and petitioner’s exhibit # 76), he was required to use separate funds to provide for the community. It is the general rule that separate funds spent for community living are deemed a gift to the community for its well-being and use. Tex.Family Code Ann. § 4.02; Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953); In Matter of Marriage of Long, 542 S.W.2d 712 (Tex.Civ.App.—Texarkana, 1976, no writ).

This action of the trial court in this instance, may have resulted in a reduction of the community estate by $17,000.00 and of Suzanne’s award by $8,500.00. The court, however, required the Doctor to assume the tax liabilities of the parties for 1975 and in effect for 1976 and to pay to Suzanne $5,700.00 in attorney’s fees. As we have heretofore pointed out in this opinion, these particular actions were within the discretion of the trial court. The result is that Suzanne was apparently awarded an estate which may be greater than one-half of the community estate, even considering the $8,500.00. It is our duty to determine whether this action amounted to a clear abuse of discretion by the trial court. A clear abuse of discretion is shown only if the division of property is manifestly unjust and unfair. Tex.Family Code, Ann. § 3.63; Mercer v. Mercer, 503 S.W.2d 395 (Tex.Civ.App.—Corpus Christi 1973, no writ); Hayes v. Hayes, 378 S.W.2d 375 (Tex.Civ.App.—Corpus Christi 1964, writ dism’d).

There were factors other than the foregoing that the trial court was entitled to consider. The record showed among other things, the following: ownership, of considerable separate property by each; lack of children born of this marriage; a marriage of brief duration (less than three years); considerable disparity in the ages of the parties (at the time of trial the Doctor was 52 years old, Suzanne 33); considerable financial obligation of the Doctor to his wife and children of his former marriage.

With all of these factors in mind we hold that the division of the property (including the matter of $17,000.00) was not manifestly unjust and unfair and that the trial court did not abuse its discretion. Suzanne’s points 6 and 7 are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    Harvey R. HOUCK, Jr., et al., Appellants, v. The KROGER CO. et al., Appellees.
    No. 1657.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 31, 1977.
    Rehearing Denied Sept. 21, 1977.

      Thomas J. Holmes, Jr., Charles Crady, III, Childress, Port & Crady, Houston, for appellants.
    Robert L. Rouner, Bracewell & Patterson, Houston, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from an order granting a temporary injunction.

In March 1968, appellee, The Kroger Company (Kroger) entered into a sale-leaseback agreement with Houck-Lister. Appellants (the Houcks) are the successors in interest to the Houck-Lister partnership. Under this agreement Houck-Lister purchased a shopping center development, containing at that time a Kroger and Super X store, a subsidiary of Kroger, at the corner of Westheimer and Voss Road in Houston, Houck-Lister, in turn, leased the Kroger and Super X space back to Kroger at a monthly rent of $2,650.00.

The lease agreement contained, among other provisions, the following paragraph:

25. If at any time Tenant shall desire to sublet or assign the demised premises, it shall notify Landlord of the name of the proposed subtenant or assignee and of the general nature of the business which such subtenant or assignee proposes to conduct. If the business which such subtenant or assignee proposes to conduct would conflict with exclusive rights granted in leases to other tenants, Landlord may, within ten (10) days of receipt of such notice, refuse to approve such sublease or assignment. If Landlord fails to approve such subtenant or assignee within ten (10) days after receipt of such notice, or if Landlord refuses to approve such subtenant or assignee for any other reason than that permitted above, Tenant may terminate the Lease. Landlord shall, at any time Tenant may request, supply to Tenant copies from leases to other tenants of all clauses granting exclusive rights to conduct various businesses in the Shopping Center.

The lease also provided:

28. The provisions of this Lease shall bind and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns.

After giving notice to appellants as provided, Kroger executed a sublease of the Kroger store space in January 1977, to Bro-mo Distributors, Inc. (Bromo), a record and tape retailer/wholesaler, at a monthly rent of $7,950.00. This lease was executed despite appellants’ refusal to consent to the sublease as required by the lease contract. Appellants gave notice to Kroger on February 3, 1977 that they considered Kroger in default and of their intention to reenter the premises after the expiration of 30 days unless the default was cured as provided in the contract. On March 1, 1977, Bromo took possession and began remodeling the premises for its retail tape and record outlet to be known as “Sound Warehouse.” On March 6, appellants filed for a temporary injunction against Bromo. A hearing on this suit was delayed until March 10, to allow appellants to bring in Kroger as a defendant. Subsequently, appellants dismissed this first suit. On March 6, pursuant to their claimed right to reenter, the appellants drilled out and changed the locks on the premises, and took possession. Bro-mo was unable to enter the building to continue its remodeling. On March 9, Kroger instituted this action for declaratory judgment and injunctive relief against appellants, and a hearing on this motion was set for March 17. At the same time, Kroger removed a dry-wall partition which sealed off a roll-up door between the Super X and Kroger store premises, and along with armed security guards, appellees entered and resumed remodeling. This door had been closed-off by Kroger upon its vacating and subletting the premises.

Within a few minutes after appellees’ entry, appellants called the Houston police and proceeded to have all the Kroger and Bromo employees, including their attorney, arrested pending criminal trespass charges. Shortly thereafter, these charges were dropped and the employees and attorney released. The following day, Kroger 'and Bromo reentered the premises with their security guards through the roll-up door. Appellants’ security guards again entered and forced the Kroger and Bromo employees off the premises at gunpoint. On March 17, the hearing on appellees’ temporary injunction commenced. The trial court issued a temporary restraining order putting Kroger in possession until 1:30 the following day when the hearing on the temporary injunction was to resume. At the hearing on the following day, the appellants took the position that the temporary restraining order, as written, was a temporary injunction, gave notice of appeal and requested the court to fix a supersedeas bond. Appellants refused to participate further in the hearing and walked out of the courtroom while the court continued the trial. At the end of the hearing, the court granted a temporary injunction. From this order, appellants have perfected their appeal.-

Appellants assign several points of error attacking the trial court’s order. They argue that they were not afforded the benefit of a full hearing on the second day of trial; that Bromo had no standing to seek the injunction; that the petition was not properly verified; that appellees had an adequate remedy at law; that neither appellee had shown irreparable injury or a probable right of recovery; that under the lease contract, Kroger could not sublease to Bro-mo restricted only by an interference with the exclusive rights of other tenants; and finally, that appellees were not in the last continued, uninterrupted possession of the premises as found by the court.

In reviewing the order of the trial court, we are guided by the well-settled rule that the court has broad discretion in its determination of whether to issue a writ of temporary injunction. Its order should be reversed only when an abuse of discretion is shown. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). An applicant for such relief generally must show a “probable right” and “probable injury.” Id., 261 S.W.2d at 552. It has sometimes been said that there must be a finding of irreparable injury or an inadequate remedy at law. Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex.Civ.App.-Corpus Christi 1976, no writ).

In the instant case the question of probable right of recovery involves construction of the provisions in the lease. We construe paragraph 25 of the lease agreement set forth above to grant to the tenant the right to sublet or assign the premises provided that the business which the subtenant or assignee proposes to conduct would not conflict with the exclusive rights granted in the leases to other tenants. It is undisputed in this record that the sublease in question does not involve a business conflicting with exclusive rights granted to any other tenant in the shopping center. The provision of the lease that in the event the landlord fails to approve the subtenant for any reason other than the single reason expressly permitted “[tjenant may terminate the lease”, affords the basis for argument that it constitutes the landlord’s exclusive remedy. On the other hand, the permission to sublet having been granted, the right of the tenant to do so could well continue in effect along with the right of termination given as an additional contractual remedy. Such conflicting construction should be determined in a trial on the merits rather than on temporary injunction. It is enough if the evidence at the hearing “tends to sustain it.” Transport Co. of Texas v. Robertson Transports, Inc., 261 S.W.2d at 552. Furthermore, the language in paragraph 28 of the lease “[t]he provisions of this lease shall bind and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns ” imports a right on the part of the lessee to sublease. [Emphasis added.] Penick v. Eddleman, 291 S.W. 194, 195 (Tex.Com.App.1927); Dillingham v. Williams, 165 S.W.2d 524, 526 (Tex.Civ.App.-El Paso 1942, writ ref’d w.o.m.). We conclude, therefore, that the finding of the trial court as to the appellees establishing a “probable right” was not an abuse of discretion.

With respect to “probable injury”, Kroger has clearly established a substantial loss in the difference in rent between the amount payable under the lease and the amount being paid by the sublessee. Such monetary harm, however, would not constitute irreparable injury, and an adequate remedy at law for damages does exist. There is no suggestion that appellants could not respond in damages if they wrongfully deprived Kroger of the right to sublease as provided in paragraphs 25 and 28 of the lease agreement.

As to Bromo, evidence was introduced which fully justified the trial court’s finding that it would sustain irreparable injury for which it does not have an adequate remedy at law. Appellants correctly point out, however, that there is no privity of contract between a sublessee and the original lessor. Therefore, a sublessee, like Bromo, may not enforce, merely by virtue of the sublease, the covenants and agreements of the lessor contained in the original lease, such as an option to renew or purchase. Zeidman v. Davis, 161 Tex. 496, 342 S.W.2d 555, 558 (1961); Lehrer v. Wegenhoft, 203 S.W.2d 245, 249 (Tex.Civ.App.-Galveston 1947, writ ref’d n.r.e.).

Aside from these questions of “probable right” and “probable injury”, we affirm the order of the court below on the ground that it was justified by the finding that appellees were in the last peaceable possession of real estate so as to entitle appellees to a temporary injunction restraining appellants from interference with appellees’ possession by force or violence. See Gulf Oil Corp. v. Smithey, 426 S.W.2d 262 (Tex.Civ.App.-Dallas 1968, writ dism’d); Owens v. Texaco, Inc., 368 S.W.2d 780 (Tex.Civ.App.-Beaumont 1963, no writ); Hartley v. Brady, 114 S.W.2d 406 (Tex.Civ.App.-Amarillo 1938, no writ).

We hold no brief for the conduct of either party to this dispute. Both have resorted to self-help and ignored the relief available through the courts. Both initiated actions calculated to endanger the parties, their employees and others innocently in the vicinity. Surely the courts are not powerless to prevent the use of violent means to settle such disputes. Although we find sufficient guilt to extend to both parties, and we cannot condone the conduct of either, it is clear that appellants elected to abandon the suit they had filed to resolve the issues and to undertake to reenter the premises by forcefully drilling out and changing the locks, and, thus initiated the events which resulted in the escalation of violence. The purpose of a temporary injunction is to maintain the status quo pending final litigation of the controversy. Story v. Story, 142 Tex. 212, 176 S.W.2d 925, 927 (1944). Reliance on self-help to settle such dispute evidences a disrespect for legal processes and affords the trial court an adequate basis for the issuance of its writ of injunction. All assignments made by the appellants have been considered and are overruled.

Affirmed.


author: WARD, Justice.

text:
    In the Matter of N. S. D., Appellant.
    No. 6613.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 7, 1977.
    Jerry Severson, El Paso, for appellant.
    George N. Rodriguez, Jr., County Atty., James H. Luckett, Asst. County Atty., El Paso, for appellee.
   OPINION

WARD, Justice.

This appeal is from the adjudication order of the Juvenile Court declaring that Appellant engaged in delinquent conduct and from the subsequent order committing Appellant to the custody of the Texas Youth Council. We reverse and remand both orders.

The adjudication hearing was on January 7,1977, and the disposition hearing on January 24th. Appellant attacks the adjudication order of January 7th on three grounds, one of which will dispose of the issue. Appellant complains of the order of adjudication as the trial Court failed to explain the Appellant’s privilege against self-incrimination as required by Section 54.03(b)(3), Tex.Family Code Ann. The Court made certain of the judicial explanations as called for by the Section, but we are unable to find any reference by the Court to the privilege against self-incrimination in the statement of facts. The evidence produced was deficient as to certain elements of the offense charged and it was only by an admission made in Court that the adjudication of delinquent conduct became authorized. The explanation therefore became both mandatory and material. The State urges that a written waiver executed by the child and his attorney, which among other things waived the right against self-incrimination, cured the defect. We find such an instrument in the transcript which purports to be so prepared, but we fail to find any proof of the instrument in the statement of facts or any stipulation regarding the execution of the same in the record. The State also argues that the waiver was signed after an instrument designated as “INSTRUCTIONS, EXPLANATION OP RIGHTS AND PROCEDURE OF ADJUDICATION HEARING” had been furnished and had been signed by the juvenile, his father, and his attorney, which among other things stated that:

“* * * The juvenile also has the privilege against self-incrimination, that is, he has the right not to testify.”

Again, we find such an instrument in the transcript which purports to be executed as indicated, but without proof thereof in the statement of facts or proper stipulation regarding the same in the record.

Even if we are to assume that the execution of the instruments was made, their value disappears when the instrument of instructions and explanations is examined. It purports to be a direction from the Court informing the juvenile, his parents, guardian ad litem, and attorney of:

“* * * all the rights that said child has under Title Three, of the Family Code of this State and such rights as are guaranteed under the constitutions of this State and of the United States and to fully inform such persons of the nature of juvenile proceedings, has formulated the following Instructions and Explanation of rights which the Court requires the above persons to read. * * *”

There then appears this sentence:

“* * * In the event that any portion of these Instructions and Explanations are not fully understood, do not hesitate to call on the bailiff or the secretary of this Coúrt for further instructions.”

If this document was furnished by the Court, as contended by the State, then the entire adjudication hearing was of no value as the record would then show that the juvenile was directed to the worthy bailiff or secretary to answer the juvenile’s questions concerning his rights and possible disposition.

A child may not be declared to have engaged in delinquent conduct without compliance with Section 54.03(b) of the Family Code which, at the beginning of the adjudication hearing, charges that the Juvenile Court Judge shall explain to the child, his parents, guardian or guardian ad litem those items listed including the child’s privilege against self-incrimination. A.E.M. v. State, 552 S.W.2d 952 (Tex.Civ.App.—San Antonio 1977, no writ); In re D.L.E. v. State, 531 S.W.2d 196 (Tex.Civ.App.—Eastland 1975, no writ). In the A.E.M. case, supra, where it appeared that the trial Court had merely been informed that the contents of the petition and the child’s rights had been explained to him by his attorney, it was held that there was a complete failure to comply with the mandatory requirements of Section 54.03(b). Here, if the trial Court had directed the juvenile to inquire of the Court bailiff and the secretary as to the answers to any questions concerning his rights, the error would be obvious. We conclude that there was a failure of the Court to explain to the child his privilege against self-incrimination and the reversal of the adjudication hearing becomes necessary.

In passing, we note that the waiver instrument referred to contains, among other things, a waiver of the right to trial. If such an instrument is being used in the juvenile proceedings, it is suggested that it be changed, as a waiver of the entire adjudication hearing would be something quite beyond the possibility of the waiver provisions. Section 51.09, Tex.Family Code Ann.

As to the disposition hearing, the Appellant argues that the judgment of commitment was erroneous as there was no evidence to support the judgment. Section 54.04(f), Tex.Family Code Ann., provides that in the order of disposition the Court shall state specifically its reasons for the disposition made of the child, and further requires that a copy of the order be furnished to the child. This is to assure that the child and his family are in a position to challenge the reasons on appeal. In turn, this furnishes the basis for the Appellate Court to determine if the reasons recited are supported by the evidence and whether or not they are sufficient to justify the order of disposition. In re T — R—W—, 533 S.W.2d 139 (Tex.Civ.App. — Dallas 1976, no writ); In re A — N—M—, 542 S.W.2d 916 (Tex.Civ.App. — Dallas 1976, no writ).

The reasons given in the present order of disposition are:

“(a) The juvenile is in need of rehabilitation and his rehabilitation can be accomplished through commitment.
“(b) There are no services, which have not been used in the past, within the community to effectuate the juvenile’s rehabilitation.
“(c) The general public of the community needs to be protected.”

Under the no evidence point presented, we are required to look only to the evidence favorable to the Court’s holding in determining this legal sufficiency point. In re E. F., 535 S.W.2d 213 (Tex.Civ. App. — Corpus Christi 1976, no writ). But as pointed out above, we do this to test the specific reasons which are required by the Statute to be given. We are then immediately confronted by the apparent defect in the reasons given under paragraphs (a) and (c). These findings that the juvenile is in need of rehabilitation and that the general public of the community needs to be protected are merely general recitations previously condemned in In re T — R—W—, supra; in In re A — N—M—, supra; and as discussed in In re J.R.C., 522 S.W.2d 579 (Tex.Civ.App. — Texarkana 1975, writ ref’d n.r.e.). The reasons given under paragraphs (a) and (c) of the order of disposition afford us no basis to sustain the Court’s disposition order.

When we examine the remaining reason, which is to the effect that there were no services which have not been used in the past within the community to effectuate the juvenile’s rehabilitation, then we run into a conflict with the evidence produced. It was the testimony of the Juvenile Probation Officer of El Paso County that in his opinion local resources were available which had not been used with the child in the past to effectuate his rehabilitation and that, using those available resources which had previously not been used, the child should have been placed on probation for a period of twelve months. It was his opinion that the child could have been rehabilitated using those previously unused local resources. The trial Court disagreed with the recommendation of the Juvenile Probation Officer. Under the testimony and under the evaluation made of the child, the Court may have been justified in so disagreeing with that conclusion. However, when the only testimony in the record is to the effect that local services were available which had not been used in the past and that the child could have been rehabilitated locally, there then became no basis for the reason given in the order; there was no evidence to support the reason given, and the point is sustained.

The trial Court is granted broad powers and discretion in determining suitable disposition of children who are adjudicated to have engaged in delinquent conduct, but the Legislature determined that the Court reveal its true reasons for making its discretionary decision in its disposition order. Adequate reasons under the evidence in this case might well have been used by the Court in its disposition order, but we are limited to testing only those presented. The following admonition is well worth repeating. The Legislature contemplated that the reasons given be something more than a mere adherence to printed forms. “Texas Family Code Symposium,” 5 Tex.Teeh.L.Rev. 267 at 564 (1974).

The order adjudicating the Appellant a delinquent and the order committing him to the Texas Youth Council are reversed, and this cause is remanded to the trial Court for new adjudication and disposition hearings.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Marie E. TOMLINSON, Appellant, v. Juanita A. LACKEY, as next friend of her minor son, James Clinton Lackey, Appellee.
    No. 6624.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 14, 1977.

      Richard I. Miller, San Antonio, for appellant.
    Sam C. Bashara, San Antonio, for appel-lee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This appeal involves the right to the proceeds of an insurance policy between the named beneficiary and the child of the decedent who was to be retained as beneficiary under the terms of a divorce decree. The action was brought by Juanita A. Lackey, as next friend of James Clinton Lackey (Appellee), her minor son, against Appellant, Marie E. Tomlinson, the named beneficiary on a policy of insurance on the life of William Lackey. The trial Court declared Appellant to be the trustee for the benefit of James Clinton Lackey of $33,000.00 of insurance proceeds paid to her, and further that the Appellee have judgment against Appellant for any deficiency as to the sum of $33,000.00. We affirm.

Juanita A. Lackey and the deceased, William Gene Lackey, are the adoptive parents of the Appellee. At the time of their divorce, the life insurance policy involved was in effect and the divorce decree provided that William Lackey should retain as beneficiary thereof the minor son, Appellee. Under the terms of the policy, William Lackey had the right to change beneficiaries and, at the time of his death, the designated beneficiary was the Appellant and she was paid the $33,000.00 proceeds of the policy. Appellee brought this suit against both the Appellant and the insurer, but the insurance company was dismissed from the case prior to trial.

Appellant says that the trial Court erred in overruling her special exceptions pertaining to the sufficiency of the Appel-lee’s pleadings. We overrule that point of error. The trial Court is vested with wide discretion in passing on special exceptions and the burden is on the Appellant to show an abuse of such discretion. H. O. Dwyer, Inc. v. Steele, 489 S.W.2d 686 (Tex.Civ.App.—Houston [1st Dist.] 1972, no writ). The test in determining the sufficiency of Ap-pellee’s pleadings is whether or not they provide “fair notice” of his cause of action. Tex.R.Civ.P. 45; Ware v. Crystal City Independent School District, 489 S.W.2d 190 (Tex.Civ.App.—San Antonio 1972, writ dism’d). The trial Court did not abuse its discretion as to fair notice . s we view the Appellee’s pleadings. As indicated, the Ap-pellee sued both the insurance company and the Appellant and fully alleged all the requirements for a good cause of action under the policy against the insurance company. A copy of the policy was attached to the original petition and it was alleged that the proceeds of the policy were payable to James Clinton Lackey pursuant to a divorce decree, and a copy of that decree was attached to the pleadings and incorporated fully therein.

There were pleadings for an injunction to prevent the Appellant from disposing of the funds, and it was further pled that upon final hearing that Appellant be ordered to pay into the registry of the Court for the benefit of Plaintiff the sum of $33,000.00, and that the Plaintiff have judgment against the Defendant for any deficiency. In a separate paragraph it was pled that, in addition to the injunctive relief and the payment into Court of the $33,000.00 for the benefit of the Plaintiff, in the alternative Plaintiff have judgment against the Appellant in the amount of $33,000.00. Again, in a trial amendment filed at the beginning of the trial, Appellant pled that “alternatively to the Court finding and declaring MARIE E. TOMLINSON trustee of the proceeds from the insurance policy that Plaintiff have judgments against MARIE E. TOMLINSON for $33,000.00 for the reasons stated in Plaintiff’s Original Petition.” A reading of all the pleadings of the Plaintiff together with the attached policy of insurance and the judgment of divorce gives notice of Appellee’s claim and the trial Court correctly overruled the exceptions to the pleadings.

The most recent case announcing the principles of law which control this case is Wunsche v. Equitable Life Assurance Society of the United States, 551 S.W.2d 84 (Tex.Civ.App.—Beaumont 1977, no writ). The Court said:

“The general rule in determining whether a person is a third party beneficiary, is clearly set forth in Republic Nat. Bank v. National Bankers Life Ins. Co., 427 S.W.2d 76, 79 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.), as follows:
“ ‘Parties are presumed to contract for themselves and it follows that a contract will not be construed as having been made for the benefit of a third person unless it clearly appears that such was the intention of the contracting parties. Citizens Nat. Bank v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941).’ ”

The court was construing a divorce property settlement agreement which provided that the husband would name the minor child of the marriage as the beneficiary in his life insurance policy. The Court noted that the property settlement agreement before it was a classic example of a contract made for a third party beneficiary. It cited and relied on a case not unlike the one before us, Box v. Southern Farm Bureau Life Insurance Company, 526 S.W.2d 787 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.). In that case, it was held that the property settlement agreement gave the children a vested equitable interest in the proceeds of the insurance policy upon the father’s life, citing as authority a case out of this Court, Locomotive Engineers’ Mut. Life & Accident Ins. Ass’n v. Waterhouse, 257 S.W. 304 (Tex.Civ.App.—El Paso 1923, writ ref’d), and Leal v. Leal, 401 S.W.2d 293 (Tex.Civ.App.—San Antonio 1966, no writ). Another case very much like the one before us, and relying on the above cited authorities, is O’Neill v. Connecticut Mutual Life Insurance Company, 544 S.W.2d 741 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.). On the basis of the above authorities, it is clear that the trial Court was correct in its conclusions of law that the minor child, Appel-lee, was vested with an equitable interest in the proceeds of the insurance policy.

Appellant urges that the Court erred in finding that William Lackey contracted with Juanita Lackey to designate James Clinton Lackey as primary beneficiary and to retain him as such beneficiary as there was no evidence and insufficient evidence to support such holding. The fact that the parties entered into a written agreement is proved by the judgment of divorce, and it is a final, unappealed-from judgment not attacked in any way in this proceeding. That judgment provides:

“The Court finds the parties have entered into a written Agreement respecting conservatorship and the support of the child, a copy of which is filed in this proceeding, and the Agreement is in the best interest of the child and should be made a part of the ORDER of the Court.”

The judgment then proceeds with naming the managing conservator and the possesso-ry conservator and setting out visitation rights and child support with a list of community property set aside to each of the parties, then comes down to this provision:

“5. All right, title and interest in and to Profit Sharing Plan of the American Tobacco Company, employer of William Gene Lackey, it being understood and agreed that William Gene Lackey shall retain as beneficiary under the aforesaid profit sharing plan and any retirement plan and group life insurance policies he may own an interest in with the aforesaid company, the minor son of the parties, James Clinton Lackey, it being agreed that said understanding and agreement is binding not only on Respondent but his heirs, executors and assigns forever.”

This is the provision which is the basis of this suit and, so far as the application of the above announced principles of law are concerned, we see no difference in the fact of whether it is a contract between the parties or whether it arises out of a judgment of the Court. In fact, it would seem that a solemn unappealed final judgment of a Court would, as a matter of law, give the minor child a vested equitable interest in the proceeds of the insurance policy on his father’s life. Additionally, the above provision must be held to be a contract binding on the parties, even though set out in the judgment, for in addition to the Court’s signature, attorneys for both parties signed the judgment and each of the parties, Juanita Lackey and William Gene Lackey, signed the judgment. Thus, they would be bound by this written instrument as both a contract and a judgment.

The Court imposed a trust on the $33,000.00 proceeds and ordered Appellant to pay them into Court within thirty-one days. In the event there was any deficiency in the $33,000.00 payment, the Court gave Appellee judgment against Appellant for such deficiency. Appellant says that she should not be required to pay any deficiency because she was innocent in accepting the payments under the policy and retained them for nineteen months before this suit was filed. She relies on an exception to the general rule that money paid under mistake of fact may be recovered, which exception arises when the payee has changed his position to his prejudice because of the payment, and he would lose if required to pay back the money. 44 Tex. Jur.2d Payments, Sec. 77 (1963). However, Appellant concedes with admirable candor that she did not submit evidence of any material and prejudicial change in her position; therefore, the point of error must be overruled.

All points of error have been considered and all are overruled. The judgment of the trial Court is affirmed.


text:
    Mary Ann SIGLER, Appellant, v. FROST BROTHERS, INC., Appellee.
    No. 6628.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 14, 1977.

      Glenn B. Lacy, San Antonio, for appellant.
    Lang, Cross, Ladon, Boldrick & Green, Mark J. Cannan, Stephen Lang, San Antonio, for appellee.
   OPINION

WARD, Justice.

Frost Brothers, Inc., filed suit on a sworn account against Mary Ann Sigler, the account being for the balance owing for purchases made from that department store. Trial was to the Court without a jury and judgment was entered for the Plaintiff for the full amount of the account. We affirm.

The suit was filed in June, 1975, and the original answer was filed in August. The Plaintiffs first amended original petition was filed on June 11,1976, and the case was thereafter set for trial on July 7, 1976. On the day preceding trial, Appellant filed her first amended original answer without leave of Court being first had and obtained. The next morning, which was the day of trial, the Plaintiff filed its motion to strike the first amended answer and asserted the lateness in the filing and surprise because of certain forgery allegations made in the answer. The first amended original answer was stricken and the Defendant then filed her second motion for continuance, which in substance asked that more time be granted to her in order that many of the matters which were set forth in the stricken pleading could be acted upon by the Court. This motion was overruled. The case proceeded to trial and judgment was entered for Frost Brothers, Inc.

The Appellant’s first three points are related and are to the effect that the trial Court committed error in overruling her second motion for continuance, in striking her first amended original answer, and in striking the affidavit filed therewith. The matter of the granting of a continuance rests within the discretion of the trial judge and an order granting or denying a motion will not be disturbed on appeal unless there was an abuse of discretion. Sralla v. Sralla, 524 S.W.2d 557 (Tex.Civ.App.—San Antonio 1975, no writ). There was no such abuse in this case. The Appellee’s first amended original petition had been filed for almost a month prior to the motion for continuance being filed. This petition had incorporated the invoices which Appellant claims in her motion for continuance were not legible. The Appellant had more than an adequate time before trial in which to assert these complaints, but she chose to wait until the day of the trial to bring these matters to the attention of the trial Court. Lack of due diligence by a party is an adequate ground for denial of a motion for continuance. The lack of diligence was shown and the denial of the motion for continuance was proper. Fritsch v. J. M. English Truck Line, Inc., 151 Tex. 168, 246 S.W.2d 856 (1952); Wohlenberg v. Wohlenberg, 485 S.W.2d 342 (Tex.Civ.App.—El Paso 1972, no writ).

In regard to the action of the trial Court in striking the Appellant’s pleading, which was filed one day prior to the day of trial, it is first noted that the pleading was the first amended original answer to be filed by the Appellant, and it was not a supplemental answer as now asserted by the Appellant. Rule 63, Tex.R.Civ.P., provides that any amended pleading offered for filing within seven days of the date of trial or thereafter shall be filed only after leave of the judge is obtained, which leave shall be granted unless there is a showing that such amendment will operate as a surprise to the opposite party. The action on the part of the trial Court in refusing the right to file the amended pleadings within the seven-day period is a matter clearly within the discretion of the trial Court, and its decision will not be disturbed on appeal unless the complaining party makes a clear showing of abuse of discretion, i. e., that the action was arbitrary or that it resulted in substantial and consequential injury to an appellant. Box v. Associates Investment Company, 389 S.W.2d 687 (Tex.Civ.App.—Dallas 1965, no writ). We find no abuse of discretion in this record, and there has been no showing of injury or harm as a result of the striking of the belated pleading. The Appellant has offered no evidence or explanation at the hearing nor on her motion for new trial as to the reason why her first amended original answer could not have been filed until July 6, nor has an explanation been made as to why the special exceptions contained therein could not have been filed and presented to the trial judge at an earlier time. That part of the amendment which, for the first time, raised the question of forgery would have required a reshaping of the Plaintiff’s cause of action and an unnecessary delay in the trial. Its lateness was not explained and the validity of the defense has never been substantiated in any manner. In that regard, no harm has been shown. McHone v. McHone, 449 S.W.2d 488 (Tex.Civ.App.—Waco 1969, writ dism’d).

Repeated complaints are contained in the pleading that many of the items in the account were not legible and, therefore, the Appellant had no means by which to prepare a defense to the account. In this regard, the facts as developed reflect no harm. Granted that many of the photostatic copies are not legible, the Plaintiff’s credit manager filed his affidavit of proof with the records attached as provided by Article 3737e, Sec. 5, Tex.Rev.Civ.Stat.Ann., and thereafter the microfilm records at Frost Brothers were made available to the Appellant. They were examined by her and, under the rule, could have been copied. Although she testified that these microfilm records were also unintelligible, testimony of the credit manager was to the contrary and obviously this testimony was believed by the trial Court. Under these circumstances, the Appellant had an ample opportunity to have copied any of the records available and to have properly prepared any defense.

The stricken pleading contained an affidavit by the Appellant where she again set forth her various defenses and attempted to deny the correctness of many of the items of the sworn account in the manner contemplated by Rules 93(k) and 185, Tex.R.Civ.P. In the affidavit she also admitted the correctness of a part of the account. She states in her affidavit that: “the account which is the foundation of the Plaintiff’s action is not just or true in part.” Since she is not denying the entire account, she has used the wrong language. If a defendant’s sworn denial is levelled at only some specified item or items, he must state that “some specified item or items are not just and true.” The sworn denial was insufficient and, therefore, she would not have been permitted to deny the Plaintiff’s claim or any item included therein, even if this portion of her pleading had not been stricken. Cases have interpreted Rules 93(k) and 185 in a manner that requires strict adherence to the requirements of those rules. A denial of the verified account must be in the terminology of the rules and if not, the Defendant will not be permitted to deny the Plaintiff’s claim or any item included therein. Oliver Bass Lumber Company v. Kay and Herring Butane Gas Company, 524 S.W.2d 600 (Tex.Civ.App.—Tyler 1975, no writ); Edinburg Meat Products Company v. Vernon Company, 535 S.W.2d 432 (Tex.Civ.App.—Corpus Christi 1976, no writ). The action of the Court in striking the pleading and the attached affidavit was neither arbitrary nor injurious.

By her last points, Appellant asserts that even without the stricken pleading she should have been permitted to raise her defenses of statute of limitations and that certain third parties were the ones who actually purchased the goods in question. We fail to find where the Appellant at any time attempted to introduce any evidence in regard to these matters. No error is reflected.

We have considered all of the Appellant’s points and they are all overruled. The judgment of the trial Court is affirmed.


author: LESTER, Judge.

text:
    Ronald KENDALL, Appellant, v. CLEVELAND CRANE & ENGINEERING COMPANY and Bohnert Equipment Company, Inc., Appellees.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Discretionary Review Granted Oct. 4,1977.
    Charles M. Leibson, Leibson & McCarthy, P.S.C., Louisville, for appellant.
    C. Alex Rose, Louisville, for Cleveland Crane & Engineering Co.
    Ben T. Cooper, Louisville, for Bohnert Equipment Co., Inc.
    Before LESTER, WILHOIT and WIN-TERSHEIMER, JJ.
   LESTER, Judge.

Ronald Kendall while operating an overhead crane in Reynolds Metals Company factory on Produce Lane in Jefferson County suffered injuries when the crane snapped free from the ceiling and struck him. Kendall sued Cleveland Crane & Engineering Company, the manufacturer, Bohnert Equipment Company, Cleveland Crane’s distributor through which Reynolds had dealt and Rapid Installation Company which installed the system. Kendall sought to recover on the basis of strict liability from Cleveland Crane and Bohnert and proceeded on a negligence theory against Rapid Installation. Trial of the action resulted in the jury returning a verdict for all defendants. Kendall appeals from the judgment in favor of Cleveland Crane and Boh-nert.

Appellant seeks reversal claiming that the court should have granted him a directed verdict, or in the alternative, that he should receive a new trial on the ground that the court erred in instructing the jury.

On September 5, 1967 Reynolds submitted a purchase order to Bohnert Equipment Company for two overhead, under-slung, floor controlled, traveling cranes for Reynolds newly completed factory. Cleveland Crane supplied all the components for this type of crane. Although the purchase order contained specifications and description of the equipment to be furnished it made clear that Reynolds considered the vendor responsible for proper engineering, design and installation of the system. Reynolds approved the drawings submitted to it and Bohnert engaged Rapid Installation which installed the equipment supplied by Cleveland Crane.

The crane which concerns us traveled on runways 300 feet long and could be moved on these to the north part of the building or south to the loading dock. In addition the trolley with the hoist could be moved east and west between the railways on the bridge made of 50 foot double girder. The operator manipulated the crane by pressing the appropriate button of the six on the hand held control pendant which hung from a cable connected to the top of the crane. The design allowed for a 5% motion in the runways. This entire system hung suspended from the ceiling by hanger rods. The roof of the building slanted so that beginning at the eastside the length of the hanger rods went from 240 inches to 17 inches on the westside. As a consequence of the roof’s angle the shorter hanger rods underwent greater stress because of excessive sway. This stress eventually caused some of the hanger rods to fail. For a period of time Reynolds simply purchased additional hanger rods to replace the broken ones, however, when Emil Graeser, the president of Bohnert, discovered this practice he became concerned and went to speak with Frank Kittel the maintenance engineer for Reynolds. This conversation resulted in Graeser contacting Carl Berge the district manager for Cleveland Crane in the Louisville area and they both went to the Reynolds plant to talk to Kittel. Graeser testified that on one of the several visits he made to Reynolds concerning the breaking hanger rods he observed an employee jogging the crane — that is alternatively pressing the forward and reverse buttons to maneuver a load into position. Cleveland Crane analyzed a broken hanger rod and sent a letter to Graeser which recommended sway bracing to prevent more than the allotted 5% movement and pointed out that a very slight pivot of the longer hanger rods would be greatly accentuated on the shorter hanger rods. Although Graeser never forwarded a letter to this effect to Reynolds he testified that Berge revealed orally all the information contained in the letter to Kittel and that Kittel assured them both that sway bracing would be installed.

On September 30, 1971 Kendall, who had been working about 10 days as a crane operator, while attempting to place a 2,070 pound load into a truck, heard a loud pop at which time he glanced up and tried unsuccessfully to avoid the falling crane. No one apprised Kendall of the danger caused by the failing hanger rods.

We feel that Post v. American Cleaning Equipment Corporation, Ky., 437 S.W.2d 516 (1968) answers appellant’s contention that his motion for a directed verdict should have been sustained. In that case Post received injuries while using an industrial vacuum cleaner when a fan in it disintegrated due to its being operated from an electrical outlet supplying 220 DC voltage. The manufacturer included written instructions with the machine which read in part, “Be sure to plug vacuum into the proper electrical outlet as indicated on the Name plate. If the vacuum is plugged into improper current serious damage to both machine and operator may occur.” A decal affixed under the overhang of the breather stated, “Only use on 115 volts AC or DC.” Post, supra, at 518. In regard to Post’s claim that the trial court erred in refusing to direct a verdict in his favor, the Court wrote,

we are not so persuaded. There was direct conflict in the testimony as to whether appellant knew or ought to have known that the equipment was specifically limited for use with 115 AC voltage. There was evidence that appellant knew or should have known that in some instances violent reaction may occur when an electrical appliance is attached to current greater than that for which it is adapted.

The Court went on to say,

[njeither are we persuaded that the ap-pellee was entitled to a directed verdict. It is true that written instructions furnished to the company at the time of delivery of the equipment made reference to the possibility of serious injury to the equipment and its operator in the event of its connection with an improper electrical outlet. It is also true that there was evidence that the equipment bore statements that it was designed for use with 115 volts, AC or DC, but the evidence respecting these notices does not unequivocally demonstrate that the nature of the danger was adequately presented as to absolve appellee as a matter of law. Post, supra at 519.

This reasoning applies equally to the case before us now since clearly Kittel constituted the proper person to receive notification as to the crane’s defects. Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197 (1976). Although the jury had sufficient evidence to find for the appellant, the conversations Berge and Graeser had with Kittel prevented such a finding as a matter of law, despite the fact that there remains considerable doubt as to whether these discussions sufficiently revealed the danger caused by the breaking hanger rods.

The appellant complains of faulty instructions as his second ground for reversal. As to appellant’s reliance upon the holding in House v. Kellerman, Ky., 519 S.W.2d 380 (1974) it would seem that he has not properly preserved the error on appeal. The Court in House, supra, reversed the judgment of the lower court because in submitting the case to the jury the circuit judge gave a superceding cause instruction. The court in the case at bar did indeed instruct the jury that if Reynolds’ activity was the sole cause of the accident, the law is for all the defendants. However, the source of this instruction can be traced to an instruction tendered to the court by the plaintiff. CR 51(3) reads in part that, “no party may assign as error the giving or the failure to give an instruction unless he fairly and adequately presented his position by an offered instruction . . . .” Consequently we cannot consider appellant’s argument on this point.

The appellant also takes issue with the trial court’s failure to instruct the jury as to the inherent dangers that the appellees could have reasonably foreseen which may have resulted from the expected usage of the equipment. This contention has merit since the foreseeable uses of the crane system had a direct impact on the degree of detail that the appellees must have provided as to defects and the consequences of these defects. The instructions by the court placed a duty on the appellees, to furnish an overhead crane system free from defects in design or construction such as would cause the overhead crane system to be unreasonably dangerous to the ultimate user, and further in the event appellees learned of such defects after installation to notify Reynolds of these defects and that the use of the crane should be discontinued until such defects were corrected. These instructions cause us concern because appel-lees in their defense below placed a great deal of emphasis on attributing the accident to Reynolds’ neglect in installing sway bracing after being informed of the need for it and to misuse of the crane through jogging. However, the indication as to the need for sway bracing may not have sufficiently communicated the danger created by the lack of such bracing and jogging may be an expected use.

The court in Post, supra, at 521 quoted with approval Frumer-Friedman, Products Liability, section 8.05 which states,

. the misuse or failure to follow directions may be foreseeable and even if there is some word of caution, some mention of misuse in the directions, the question still remains whether this constituted an adequate warning. The issue is whether the totality of directions or cautionary language constituted an adequate warning in the light of the foreseeable use and user of the product.

In that case the court held that the circuit court erred when it refused appellant’s instructions which encompassed the foreseeable uses to which the product in issue might be put and in light of such foreseeable uses placed a duty on the manufacturer to either give an adequate warning of the danger or to apply such technology then available so as to prevent the failure of the product. Unfortunately the instructions in this case do not meet that standard. The fatal flaw lies in the absence of any mention of the dangers the appellees could reasonably foresee which would result from the expected usage of the crane system. This omission takes on importance because the jury may have concluded that once the appellees pointed out to Reynolds that the defect could be corrected by sway bracing they had no obligation to relay the danger involved in not having the bracing. The court’s direction that appellees had the duty to notify Reynolds that the use of the crane should be discontinued until the defects were corrected does not go far enough to enlighten the jury as to what would be an adequate warning considering the course of conduct appellees could have reasonably anticipated Reynolds would take. In Ulrich, supra at 200 we find this language:

. as aptly observed in 62 Ky.L.J. 866, 875, “the important factor is how safe or dangerous the product is when used as it was intended to be used” (or should reasonably have been anticipated to be used). If the danger is unreasonable because it is not obvious and may not be apprehended by such a person, then it may be obviated by an adequate warning, so provided or affixed that in the ordinary course of events it will reach and should be understood by that person.

Since our holding here necessitates a new trial we will set out instructions which are consistent with the principles stated in this opinion and will hopefully be of assistance to the parties and to the trial court.

If the jury believe from the evidence that the defendants should have foreseen that Reynolds would not see to the installation of bracing sufficient to prevent the breakage of the hanger rods or would allow the crane to be operated in such a manner so as to cause excessive sway, thus exposing the crane operator to the hazards of injury then the court instructs you that,

(1)it was the duty of the defendant, Cleveland Crane & Engineering Co. either
(a) to give Reynolds adequate warning of the danger arising from the failure of the hanger rods, or
(b) in the absence of adequate warning, as set out in (a) hereof, to apply such technology as the jury may believe from the evidence was then available to the defendant to so design the crane system as to prevent the breaking of the hanger rods by the motion of the system.

If the jury believe from the evidence that Cleveland failed to perform the duty imposed on it by this instruction then the law is for the plaintiff and you will so find, but unless you so believe the law is for the defendant and you shall so find.

(2) It was the duty of the defendant, Bohnert Equipment Company, either
(a) to give Reynolds adequate warning of the danger arising from the failure of the hanger rods, or
(b) in the absence of adequate warning, as set out in (a) hereof, to furnish a crane system to which was applied such technology as the jury may believe from the evidence was then available to Cleveland Crane to so design the crane system as to prevent the breaking of the hanger rods by the motion of the system.

If the jury believe from the evidence that Bohnert failed to perform the duty imposed on it by this instruction then the law is for the plaintiff and you will so find, but unless you so believe the law is for the defendant and you shall so find.

(3) “Adequate warning” as used in these instructions means such degree of warning as will afford to Reynolds, by the exercise of reasonable care on its own part, fair and adequate notice of the possible consequences of use or even misuse of the equipment.

The Judgment below is reversed.

All concur.


author: PARK, Judge.

text:
    CITY OF ASHLAND, Kentucky, a Municipal Corporation of the Second Class of the Commonwealth of Kentucky, David O. Welch, Mayor, John Oliverio, Burley Stephens, Jack Thompson and Norman Dutch Berry, City Commissioners, Marcia Mabley, City Assessor, Appellants, v. Harold E. KELLEY, Ruie Kelley and the Galloway Realty Co., a Kentucky Corporation, Appellees.
    Court of Appeals of Kentucky.
    May 20, 1977.
    Discretionary Review Granted Oct. 4,1977.
    Michael D. Johnson, Ashland, for appellants.
    Michael R. Dowling, Ashland, for appel-lees.
    Before COOPER, GANT and PARK, JJ.
   PARK, Judge.

This action was commenced in the Boyd Circuit by the appellees, Harold E. Kelley, Ruie Kelley and the Galloway Realty Company as the owners of real property and taxpayers in the City of Ashland. In their original complaint, the appellants sought a mandatory injunction to compel the appellants, the City of Ashland and its officers, to make a uniform reassessment of all real estate within the city at its fair cash value.

The appellants’ opposition to a reassessment was based upon the city’s fear that it could not realize any additional tax revenue if the tax base was increased as a result of the reassessment. Because of the great expense which would be incurred in a reappraisal of all property within the city, the city contended that it should not be compelled to equalize the assessments. In an amended complaint, the appellees sought a declaration by the trial court that “the City of Ashland can in fact realize greater tax revenue if the equalization of assessment process causes an increase in the tax base for the City of Ashland.” In the judgment entered by the Boyd Circuit Court, the City of Ashland was directed to have a professional appraisal made of all real estate situated within the city. The circuit court further held:

“That the City of Ashland, be entitled to all additional revenue resulting from the application of the presently existing tax rate or a lessor [sic] one to an increased assessment base where the increase was due to net assessment growth.”

The City of Ashland appeals from the judgment, raising as the sole issue the following question:

“Is a city of the second class entitled to additional revenue which is produced by applying the presently existing tax rate to a tax assessment base increased due to net assessment growth which was derived from a professional appraisal?”

The city does not contend that the circuit court erred in holding that the city was entitled to any additional revenue produced by an increased tax base resulting from a reassessment. The city is primarily concerned with obtaining a binding decision on the issue prior to its undertaking a reassessment and collecting any additional revenue. As the city states in its brief:

“The effect of the City of Ashland adopting this position and being wrong would be disastrous. If the city did receive revenue in this matter and the Court later held it was not so entitled insolvency could well be the result. Appellants desperately need a decision from this court answering the question presented in this appeal.”

The appellees argue on appeal that the circuit court did not err in holding that the city would be entitled to any additional revenue generated by applying the current legal tax rate to the increased tax base which might result from reassessment.

All parties seek a declaratory judgment on the issue raised by the city. The issue is one of great public importance to the city and its residents, and an advance determination will be of benefit to all parties.

In the complaint, the appellees assert that approximately eighty percent of the real estate within the city is undervalued and that only twenty percent of the real estate was valued at fair market value. If the judgment of the trial court is correct, those owners whose property is currently assessed at fair market value would not be required to pay any additional tax as a result of the reassessment. On the other hand, those owners whose property is presently valued at less than fair market value would be required to pay a greater tax if the current legal tax rate is to be applied to the higher value determined upon reassessment. This group of owners is not represented in this proceeding. The appellants and the appellees would have this court decide the issue raised without affording the property owners most directly affected an opportunity to be heard.

Neither the appellants nor the ap-pellees have at any time raised the question of joining all necessary parties to this proceeding. Nevertheless, in declaratory judgment proceedings the appellate court should consider a defect of parties although the question was not otherwise raised. Worden v. City of Louisville, 279 Ky. 712, 131 S.W.2d 923 (1939); KRS 418.065. KRS 418.075 provides:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.”

Since no owners of underassessed property had been made parties to the action, the circuit court should have declined to rule on the issue presented. The circuit court’s judgment could not be binding upon persons who were not parties to the action or who were not represented in the action. See Coke v. Shanks, 209 Ky. 723, 273 S.W. 552 (1925). A representative of underas-sessed property owners should have been joined so that the case could have proceeded to judgment as a class action. See Selle v. City of Henderson, 309 Ky. 599, 218 S.W.2d 645 (1949).

The record indicates that all property owners were notified by the city that their taxes could be increased as a result of this litigation. However, this notice did not satisfy the duties imposed upon the trial court in class actions under CR 23.03 and CR 23.04.

Although this court agrees that the City of Ashland is entitled to an adjudication of the question raised on appeal, there cannot be any such adjudication until such time as a representative of the class of property owners most affected is joined in the proceeding. For the foregoing reasons, the ease must be reversed and remanded to the circuit court so that the proper parties may be joined in order that a judgment may be entered binding all parties who would be affected.

All concur.