author: JAMES, Justice.

text:
    K.W.S. MANUFACTURING COMPANY, INC., et al., Appellants, v. Samuel L. McMAHON, Appellee.
    No. 5857.
    Court of Civil Appeals of Texas, Waco.
    April 20, 1978.
    Rehearing Denied May 11, 1978.

      Sam J. Day and Carter L. Ferguson, McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Fort Worth, for appellants.
    Robert J. Wilson, Burleson, for appellee.
   OPINION

JAMES, Justice.

This is a suit for 5% of the stock of a corporation based upon actionable fraud, and for wrongful termination of an employment agreement. Jury verdict and trial court’s judgment were in favor of Plaintiff. We reform the trial court’s judgment, and as reformed, we affirm same.

Plaintiff-Appellee Samuel L. McMahon brought this suit against Defendant-Appellants K.W.S. Manufacturing Co., Inc., a corporation, and Floyd W. Watkins, Chesley C. Sharp, and Anton Krsak, alleging Plaintiff was entitled to a 5% ownership interest in K.W.S. Manufacturing Co., Inc., and for actual and exemplary damages for fraud on the part of the individual Defendants Watkins, Sharp, and Krsak, whereby said Defendants allegedly induced Plaintiff to contribute time, materials, and money toward helping said Defendants set up the K.W.S. Corporation, and for further actual and exemplary damages for wrongful termination of Plaintiff’s employment.

Trial was had to a jury which found:

(1) There was an agreement between Plaintiff McMahon and Defendants Watkins, Krsak, and Sharp providing that Plaintiff was to acquire five percent ownership in the company to be formed as a result of their efforts prior to February 23, 1972 (said date being the day K.W.S. was incorporated).

(2) Said agreement was breached by Defendants on March 4, 1975.

(3) The value of said 5% ownership on said date of Defendants’ breach was $12,-500.00.

(4) Said three individual Defendants Watkins, Krsak, and Sharp, prior to incorporation of K.W.S. made representations to Plaintiff McMahon that if he (McMahon) furnished time, labor, and materials, he would be given a 5% ownership interest in said corporation.

(5) Plaintiff relied upon such representation in performing the labor and furnishing the supplies on the project in question.

(6) Plaintiff has been damaged as a result of his reliance upon such representations that he would receive 5% interest for the time, labor, and contributions which he supplied;

(7) In the amount of $20,000.00 (actual damages);

(8) Defendants Watkins, Krsak, and Sharp acted with malice toward Plaintiff in making such representation. “Malice” was defined as “ill will, bad or evil motive, or such gross indifference to the rights of others as will amount to a willful or wanton act done intentionally or without just cause or excuse.”

(9) $5,000.00 punitive damages should be awarded to Plaintiff against Watkins, Krsak, and Sharp for such representation.

(10) There was an agreement between Plaintiff and Defendant Watkins, Krsak and Sharp providing that Plaintiff would have employment with the company being formed for an indefinite period of time.

(11) Plaintiff is entitled to $6,000.00 actual damages as a result of his (Plaintiff’s) termination of employment.

(12) That K.W.S., Watkins, Krsak, and Sharp acted with malice toward Plaintiff McMahon in terminating his employment.

(13) Plaintiff is entitled to $15,000.00 punitive damages against all four Defendants for such termination of employment.

Based upon the jury verdict the trial court entered judgment in favor of Plaintiff McMahon against Krsak, Watkins and Sharp, jointly and severally, in the amount of $37,500.00 for actual and exemplary damages; and in addition thereto, Plaintiff was awarded judgment against K.W.S. and said three above-named individual Defendants, jointly and severally, for $21,000.00 for actual and exemplary damages. From this judgment the four Defendants appeal.

Appellants’ points one and two assert there is no evidence, and insufficient evidence that at the time the Defendants made the representations to Plaintiff (to the effect that Plaintiff would receive 5% ownership of the corporation to be formed), that Defendants did not intend to give Plaintiff such 5% ownership interest. We overrule these contentions.

Defendant K.W.S. Manufacturing Co., Inc. (hereinafter called “KWS”) was incorporated on February 23, 1972. The company was formed and owned by the three individual Defendants, Watkins, Sharp, and Krsak. KWS specializes in the manufacture of screw conveyors or bulk material handling equipment. Prior to the incorporation of KWS, Watkins, Sharp and Krsak worked for Thomas Conveyor, a company also dealing in bulk material handling equipment. It was at Thomas Conveyor that each Defendant learned expertise in the various aspects of the screw conveyor business.

In the latter part of 1969 and early 1970, the three individual Defendants were contemplating the formation of their own business. Plaintiff McMahon was a neighbor of Defendant Krsak, and Plaintiff and the three individual Defendants began working part-time at nights and on weekends to set up this new business which was to manufacture screw conveyor equipment. Plaintiff had a full-time job with Loma Plastics, and was experienced in electrical and hydraulic equipment and machinery, which skill and know-how was needed for setting up this screw conveyor manufacturing operation. Plaintiff testified that he had been told by Watkins, Krsak, and Sharp that if he would help them set up and establish this business, he would receive a 5% ownership share of the business and a full-time job with the company the same as the three individual Defendants. Plaintiff testified that pursuant to this promise he worked a substantial amount of time, furnished some needed equipment, and paid in some money to help the venture get started. This new business was in direct competition with Thomas Conveyor, the firm by whom Watkins, Krsak and Sharp were employed. After a while, the Thomas Conveyor people found out about this new business, and thereupon fired Watkins, Krsak, and Sharp. Then, after this, said three individual Defendants began working full time in the new business; and on February 23, 1972, they incorporated this business under the Corporate name of KWS Manufacturing Co., Inc. One hundred shares of stock were issued, all of which was held by Watkins, Krsak, and Sharp.

Plaintiff-Appellee contends that by the jury’s answers to special issues 4 through 9 inclusive, he has established the factual basis or elements for a judgment against Watkins, Krsak, and Sharp for actionable fraud. These jury findings establish (1) the Defendants’ representation to Plaintiff that if he would furnish time, labor and materials as hereinabove mentioned, that they would give him 5% ownership of the company when it was formed; (2) that Plaintiff relied upon such representation, and (3) has been damaged as a result of such reliance, (4) in the amount of $20,000.00 actual damages; (5) the Defendants acted with malice toward Plaintiff in making such representation, and (6) Plaintiff is entitled to $5,000.00 punitive damages therefor.

However, Defendant-Appellants assert that Plaintiff-Appellee has failed to establish one essential element of his cause of action for actionable fraud against them, to wit: the representation in question made by the Defendants is a promise of an act to be performed in the future (as opposed to a misrepresentation of a past or present existing fact). Appellants argue that in such a case it is not a fraudulent misrepresentation unless Plaintiff-Appellee established that at the very time the Defendants made the promise they did not intend to perform it. We agree with Appellants’ contention that this is a correct statement of the law. Plaintiff-Appellee had the burden of establishing this fact as a part of his cause of action for actionable fraud. See Precision Motors v. Cornish (Dallas, Tex.Civ.App., 1967) 413 S.W.2d 752, 756, NRE; Morgan v. Box (Dallas, Tex.Civ.App., 1969) 449 S.W.2d 499, 504, no writ; Citizens Standard Life Ins. Co. v. Gilley (Dallas, Tex.Civ.App., 1975) 521 S.W.2d 354, 356, no writ; Ryan Mortgage Investors v. Lehmann (Beaumont, Tex.Civ.App., 1976) 544 S.W.2d 456, 461, writ dismissed; 25 Tex.Jur.2d “Fraud and Deceit,” Section 45, page 685.

In the case at bar, the burden of proof was upon Plaintiff-Appellee to establish that the Defendants did not intend, at the time the representation was made, to perform the promise to give Plaintiff-Appellee the 5% ownership in KWS at the future time when the corporation shall have been formed. The Plaintiff did not request an issue to this effect, but neither did the Defendants object to the failure of the trial court to submit such an issue. See Rule 279, Texas Rules of Civil Procedure. Under this state of the record, the trial court was authorized to make an implied finding to the effect that the Defendants did not intend, at the time the representation was made, to perform the promise to give the Plaintiff 5% of the stock of KWS, if there was evidence in the record to support such finding. Stanfield v. O’Boyle (Tex.1971) 462 S.W.2d 270, and Bond v. Duren (Waco, Tex.Civ.App., 1975) 520 S.W.2d 460, NRE, hold that if the defendant denies he made the alleged promise which was not performed, that this is some probative evidence to support a jury finding (or trial court finding) that the defendant had no intention of performing at the time he made the promise.

Here, there was evidence that the Defendants made the promise, and also evidence that the Defendants denied making the promise. Thus, there was a fact issue presented which the trial court was authorized to resolve, and did resolve, by his implied finding in Plaintiff’s favor to the effect that Defendants had no intention to perform at the time they made the promise to Plaintiff.

Therefore, we hold that the jury’s answers to special issues numbers 3, 4, 5, 6, 8, and 9, coupled with the trial court’s implied finding as hereinabove described, establish Plaintiff’s right to recover upon the theory of actionable fraud against the three individual Defendants Watkins, Krsak, and Sharp, the amount of $12,500.00 for the value of 5% of the corporate stock plus the $5,000.00 exemplary damages found by the jury in answer to special issue number 9.

Plaintiff-Appellee asserts that he has not sued upon a breach of contract theory, and of course would not be entitled to double recovery for the value of 5% of the stock by suing upon theories of both actionable fraud (tort) and breach of contract.

We now come to the “termination of employment” portion of this case. In answer to special issues 10, 11, 12, and 13 the jury found: (10) there was an agreement between Plaintiff and the three individual Defendants providing Plaintiff would have employment with the company for an indefinite time; (11) Plaintiff is entitled to $6,000.00 actual damages as result of being fired; (12) KWS and the three individual Defendants acted with malice toward Plaintiff in terminating his employment; and (13) Plaintiff is entitled to $15,000.00 punitive damages against all four Defendants for firing Plaintiff.

Appellants attack the jury’s findings to the above four special issues by contending: (1) no pleadings to support the submission of issues 10 and 11; (2) punitive damages are not authorized for breach of contract; (3) no evidence of malice; and (4) factual insufficiency of evidence to support finding of malice and the punitive damages. We overrule all these contentions.

In our opinion the pleadings of Plaintiff are sufficient. The Defendants filed no special exceptions to Plaintiff’s pleadings. In the absence of special exceptions, the petition will be construed liberally in the pleader’s favor, and pleadings are sufficient under our Rules of Civil Procedure if they give fair and adequate notice to the adversary. Rule 45, Texas Rules of Civil Procedure; Stone v. Lawyers Title Ins. Corp., (Tex.1977) 554 S.W.2d 183, 186, and the cases cited therein.

Appellants assert error of the trial court in submitting issues 12 (malice) and 13 (punitive damages), on the ground that punitive damages are not authorized for breach of contract. This rule of law is true as far as it goes, but is not the complete rule of law that applies to the case at bar. Punitive or exemplary damages cannot be recovered for a simple breach of contract, where the breach is not accompanied by a tort, even though the breach is brought about capriciously and with malice. A. L. Carter Lumber Co. v. Saide (1943) 140 Tex. 523, 168 S.W.2d 629; Graham v. Turner (Waco, Tex.Civ.App., 1971) 472 S.W.2d 831, 838, no writ; Boswell v. Hughes (El Paso, Tex.Civ.App., 1973) 491 S.W.2d 762, NRE. However, punitive damages are allowable in a breach of contract situation if a distinct tort is alleged and proved, independent of the contract action. A tort may grow out of, make a part of, or be coincident with a contract. So the same state of facts between the same parties, may admit of an action ex contractu or ex delicto. McDonough v. Zamora (San Antonio, Tex.Civ. App., 1960) 338 S.W.2d 507, 513, 514, NRE, citing Shirley v. Waco Tap R. Co. (1889) 78 Tex. 131, 10 S.W. 543, 549.

In the case at bar, the jury’s findings established the existence of an agreement between Plaintiff and the Defendants providing that Plaintiff would have employment with KWS for an indefinite period of time. 0n the strength of this agreement, accompanied by the Defendants’ promise to him of a part ownership in the business, Plaintiff quit his full-time job at Loma Plastics and began working full-time for KWS in August 1973, where he worked full-time until he was fired by the Defendants on March 4,1975. The reason Plaintiff McMahon was fired is undisputed and was this: Shortly before he was terminated, Plaintiff McMahon had strongly insisted upon being given his 5% of the stock of KWS that Defendants had promised him. For about three years since the time KWS was formed some of the Defendants had led Plaintiff McMahon to believe that they were going to give him his stock, but with one excuse after another during this time the Defendants delayed and put him off. When Plaintiff finally employed an attorney and threatened to file suit to cause Defendants to make good on their promise, that is when the Defendants fired Plaintiff, causing Plaintiff to have to find another job paying considerably less money than he had been making. The Defendants all admit that this is the only reason they fired Plaintiff, to wit, because of his insistence upon the 5% stock ownership. Appellants say there is no evidence, and insufficient evidence of malice. We are of the opinion that there is plenty of evidence of malice. From 1972 until 1976, the annual salaries drawn by the three individual Defendants from KWS had grown from $4,000.00 each to $67,000.00 each, plus $24,000.00 each held by them in profit-sharing. The gross sales of KWS had grown from $250,000.00 in 1972 to almost $2,000,000.00 in 1976, and the employment of KWS had grown from three people in 1972 to fifty-five in 1976. The stockholder’s equity (all owned by Watkins, Krsak, and Sharp) was approximately $350,-000.00 in 1976. On this basis, Plaintiff’s five shares of stock would have been worth $17,500.00, while KWS had a great growth and earnings potential, as all admitted. At the time Plaintiff was fired by the Defendants, he was making a laboring man’s wage of about $260.00 per week, and was told at the time of firing by Defendants that he would also lose his retirement with KWS which was worth a little over $2,000.00. Defendants told Plaintiff he could keep his job and retirement benefits if he would “just shut up about the 5%.”

In short, the Defendants were harsh and oppressive toward Plaintiff in connection with this patently wrongful termination of Plaintiff’s employment. This wrongful termination was a breach of contract, but it was also a tort which authorized the award of punitive damages.

Appellants have other points and contentions, which we have carefully considered, and all of which we overrule as being without merit.

Judgment of the trial court is hereby reformed so as to provide recovery by Plaintiff-Appellee as follows:

(1) Plaintiff-Appellee McMahon is hereby granted a judgment against Defendant-Appellants Krsak, Watkins and Sharp, jointly and severally, for the sum of $17,500.00 for his actual and exemplary damages;

(2) Plaintiff-Appellee McMahon is further granted judgment against KWS Manufacturing Co., Inc., Krsak, Watkins, and Sharp, jointly and severally, for $21,000.00, for his actual and exemplary damages. (This portion is unchanged from the original judgment).

(3) Costs of this appeal are taxed one-fourth (¼⅛) against Plaintiff-Appellee McMahon and three-fourths (3Aths) against all four Defendant-Appellants, jointly and severally.

The trial court’s judgment is hereby'reformed in the particulars hereinabove described, and as reformed, is affirmed.

REFORMED AND AFFIRMED.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Levoy HART, Appellant, v. CITY OF DALLAS, Appellee.
    No. 1117.
    Court of Civil Appeals of Texas, Tyler.
    April 20, 1978.

      Michael M. Daniel, Dallas Legal Services Foundation, Inc., Dallas, for appellant.
    Linda R. Lawson, Asst. City Atty., Dallas, for appellee.
   McKAY, Justice.

Appellant, Levoy Hart, filed suit against the City of Dallas alleging that the City of Dallas had ordered the demolition of his residence at 6723 Hialeah Street, Dallas, because such residence was not in compliance with the City of Dallas-Minimum Urban Rehabilitation Standards Code and asking for a temporary and a permanent injunction against the City to prevent the ordering or accomplishment of the demolition of the premises. Appellee, City of Dallas, answered by general denial and alleged that the premises of appellant were in violation of the Urban Rehabilitation Standards Ordinance of the City of Dallas and other codes and ordinances of the City, and were unfit for human habitation and constitute nuisances and hazards under the ordinances of the City and the laws of the State of Texas.

Trial was had before the court without a jury, and the court entered judgment that the permanent injunction prayed for be denied and that a temporary order which enjoined the City from demolishing the residence be in all things dissolved.

The trial court made findings of fact and conclusions of law as follows:

“FINDINGS OF FACT

I.

“That Plaintiff is the owner of the property and structure located at 6723 Hialeah Street within the City of Dallas.

II.

“That the structure and property fails to meet minimum standards of the Dallas Building Code.

III.

“That the owner of the property was first notified of this noncompliance by certified letter mailed in September, 1974; that thereafter there were numerous contacts with the owner by Urban Rehabilitation Inspectors seeking voluntary compliance; that because the owner failed to repair his property, notice was served on said owner, Plaintiff in this cause, of a hearing before the Urban Rehabilitation Standards Board to be held on February 11, 1976; that after said hearing with all parties present, Plaintiff was given seventy (70) days by the Urban Rehabilitation Standards Board in which to obtain a building permit and rehabilitate his property with the condition that the failure to so repair would be cause for issuance of a demolition order; that on May 12, 1976, the Urban Rehabilitation Standards Board found that Plaintiff had failed to comply with its order and issued a demolition order; that on June 23, 1976, Plaintiff’s appeal of this order was denied; that in mid-August of 1976, Plaintiff was permitted another hearing before the Urban Rehabilitation Standards Board, at which time the order for demolition was sustained.

IV.

“That among the violations contained on said property are, but not limited to, the following:

“A. Structural violations;
(1) Protect exterior surfaces;
(2) Provide and maintain railings for steps;
(3) Repair holes and cracks in steps;
(4) Maintain structure in weather tight and water tight condition;
(5) Maintain floors, walls, ceilings and all structural members in sound condition;
(6) Repair hot water heater connection;
(7) Repair holes, cracks, and breaks in walls and ceilings.

“B. Utility violations:

(1) Disposal of food and waste impossible;
(2) No potable water;
(3) Connect plumbing and heating fixtures.

V.

“That the owner has been given opportunity to repair these violations and has failed to do so.

VI.

“That the only repairs which have been made to the structure are cosmetic and not structural.

VII.

“That the house is structurally unsound due to failure of the foundation and support beams.

VIII.

“That to repair this structure to meet the minimum standards of the Dallas Building Code would require substantial reconstruction of the said structure.

“CONCLUSIONS OF LAW

I.

“That all requirements of the Dallas City Code were met, the Plaintiff was afforded an opportunity to be heard and the demolition order is fair and reasonable.

II.

“That the property in question is maintained in such a manner as to be unfit for human habitation and is a nuisance.

III.

“That Plaintiff is not entitled to injunc-tive relief preventing the City of Dallas from implementing its demolition order.”

Appellant first complains that the trial court erred in entering judgment for appel-lee on its finding and conclusion that appellant’s house constituted a nuisance because there was no evidence to support such a finding or conclusion, and because such finding and conclusion were supported by factually insufficient evidence. It is necessary to detail the evidence with particularity in order to address ourselves to these two complaints.

The witness D. H. Conner, coordinator of Codes Compliance for the City of Dallas for nine years, testified that it was his duty to oversee and be the liaison between the City of Dallas and the Urban Rehabilitation Standards Board and oversight for the gathering of evidence to present in actions in the district court or the municipal courts related to violations of the City codes. He further testified that the trim on the brick structure belonging to appellant was deteriorated and daylight could be seen through some of those holes; that there was a violation of clause (3) of subsection (b) of section 27-11 of Ordinance No. 15,19s, in that there were repair holes, cracks and other defects capable of causing injury to a person on the stairs, porches, steps and balconies; that with respect to subsection (5) there was “evidence of some cracks which communicated from the exterior of the structure and were reflected by breaks on the wall on the inside and a gypsum board on the inside walls of the structure such that they were not weather tight; that there was differential settlement in the brick, especially at the corners of the structure, both rear corner and the front corner — and evidence of the differential settlement of the monolithic slab in such areas which cause settlement and breaks to appear; that the west wall of the structure had pulled away on the inside on the load-bearing partition between the living room and the dining room a distance of several inches, and the west wall is not plumb by several degrees.”

He further testified as to utility standards that he believed that there was no down-draft diverter in the hot water heater flue connection; that as of mid-March, 1976, there was no electric power connected to the house, and no gas there, and no water; and it would be impossible without gas or electricity to light the house, and without water, to dispose of human waste and other waste; there would not be potable water nor a device to supply a hot water heater at a constant water temperature of 120° Fahrenheit; that subsection (c)(5) (to provide and connect a kitchen sink, bathtub or shower, and lavatory to a cold and hot water source) could not be complied with without water; that without gas there was no facility to provide heating equipment capable of maintaining a minimum of 68° Fahrenheit; that there was no solid fuel burning equipment (appellant testified that as of the date of trial water and electricity were connected but the gas was not connected).

Conner further added that if the defects were not corrected there would be a major failure of the brick veneer; that there was damage to the roof sheeting (sic); that in his opinion, by definition of the ordinance, the house was not fit for human habitation as it then stood, and that for the house to be brought up to the code standard would involve a major reconstruction, if not a complete rebuilding of the structure; that to repair the house properly would cost from $12,500 to $15,000; that after the house was under an order of demolition, the power company and the gas company were asked to remove the electric and gas meters and discontinue such service at that location for reasons of fire, health and life safety, and to prevent other persons from making unauthorized entry and perhaps setting fire to it; that service was restored after this suit was filed and an order issued by the court; that the slab could be corrected by hydraulic pressure using quick-setting cement for approximately $10,000, and to put piers down to correct it would cost approximately $7,500, and shoring it up and putting in piers would approximate $5,000 to $6,000, but if appellant did the work himself it could be done for about one-half of these amounts.

There was introduced in evidence an “O.K.” tag by the City plumbing inspector as of April 22, 1977.

The witness Leon Hurse, an employee of the City of Dallas Public Works Department, Property Management Division, as a real estate appraiser who had been such appraiser for eleven years, testified that he had a B.S. Degree from East Texas State University, and had real estate appraisal courses at Southern Methodist University and real estate law and property management from S.M.U., and had done appraisal work since 1949. Hurse further testified that his estimate of the cost of repairing the house was about $16,250, and that the repairs needed were foundation (considerable), roof, interior walls, floor, electrical work, plumbing, and replace the front porch and various overall repairs to bring the house up to the City of Dallas Code standards; that if these repairs were made the house would have a value of from $22,000 to $24,750; that the house would probably have a negative value for prospective buyers in its then condition, and the lot probably would have more value without the house on it, and it would not be economically feasible to make the necessary repairs and “would be best just to tear it down and start from scratch”; that without making any repairs the house and lot would be worth about $4,500, and that to repair the house would cost approximately $2,500 for foundation, $1,500 for the roof, $2,200 for the floors and walls, $650 for the electrical work, $2,300 for plumbing, to replace broken walls in front would be $2,100, to replace windows and other exterior work such as doors would be $1,750, and to repair the overhang and additional repairs to the roof would be $2,650.

The witness Fay Catledge testified that she lives across the street from the appellant’s house in question, the third house east from appellant’s location, and that appellant brought in large concrete pipe and built what he called a bomb shelter and left construction materials on the property for a long time, and that the property was un-kept.

The witness Dave Hill formerly lived three houses down Hialeah Street from appellant Hart and Hill testified that appellant’s house has deteriorated over the years with debris in the yard and stagnant water remaining on the property, fences and trees falling down and trees falling on one of his houses as well as appellant’s house; that appellant’s house stood vacant for a number of years and has depreciated; that he observed cracks six inches wide in the kitchen wall and he assumed the cause was the shifting of the foundation; that he was not able to keep rented one of his houses next door to appellant because of the condition of appellant’s house; that even though appellant’s house looks better because he has repainted it in his opinion it should be demolished because it was not worth fixing; that in his opinion the house could be brought up to minimum code standards for approximately $10,000, and after that money was spent the market value of the house would be approximately $22,000 to $24,000.

The record reveals that the appellant’s house was vacant and had been vacant for a number of years and was vacant at the time of trial.

Appellant contends that the court’s finding of nuisance is material because the City of Dallas had the burden of alleging and proving that the house involved was in fact a nuisance. Citing Grossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810 (1923), and City of Houston v. Lurie, 148 Tex. 391, 224 S.W.2d 871 (1949).

Both Crossman and Lurie are distinguishable from the case at bar. However, for reasons we will state later, the principles of law pronounced in Crossman and followed in Lurie are applicable to the facts before us. Both cases involved attempts by a municipality to condemn and demolish certain buildings pursuant to City ordinances. The ordinances in question were enacted pursuant to the enumerated powers under Article 1175, secs. 19 and 25, Tex.Rev.Civ.Stat. Ann., or the previous article from which it was derived.

Article 1175 reads in pertinent part:

“Cities adopting the Charter or amendment hereunder shall have full power of local self-government, and among the other powers that may be exercised by any such city the following are hereby enumerated for greater certainty:
“19. Each city shall have the power to define all nuisances and prohibit the same within the city and outside the city limits for a distance of five thousand feet; .
“25. ... to provide for the condemnation of dangerous structures or buildings or dilapidated buildings or buildings calculated to increase the fire hazard, and the manner of their removal or destruction.”

Additionally, the ordinances in both cases defined certain types of structures as nuisances and provided for their demolition. In neither case was the owner provided, an opportunity to repair the structure in order to abate the alleged nuisance conditions.

Turning to the facts before us, the City of Dallas ordinance was enacted pursuant to Section 35, Art. 1175, Tex.Rev.Civ.Stat. Ann. (Supp.1978), which reads:

“35. A home-rule city may adopt an ordinance which requires the demolition or repair of buildings which are dilapidated, substandard, or unfit for human habitation and which constitute a hazard to the health, safety, and welfare of the citizens. The ordinance must establish minimum standards for continued use and occupancy of structures, and these standards shall apply to buildings regardless of when they were constructed. The ordinance must provide for proper notice to the owner and a public hearing. After the hearing, if the building is found to be substandard, the city may direct that the building be repaired or removed within a reasonable time. After the expiration of the allotted time the city has the power to remove the building at the expense of the city and assess the expenses on the land on which the building stood or to which it was attached and may provide for that assessment, the mode and manner of giving notice, and the means of recovering the removal expenses. The means of recovering removal expenses may not include forced sale of the land by the city.”

Article IV, Ordinance No. 15198, amending Chapter 27, “Minimum Urban Rehabilitation Standards,” of the Dallas City Code, provides for demolition of substandard structures after notice to the owner and a public hearing before a panel of the urban rehabilitation standards board. After hearing evidence the panel may (1) find the structure is not substandard, (2) grant a variance, (3) in the case of a single family dwelling, grant an exception to avoid the imposition of an unreasonable hardship, (4) find that the structure is substandard and order repair or other suitable remedy within a specified period of time, or (5) order the demolition of the structure within a specified period of time. As detailed in the court’s findings of fact, the City of Dallas followed all procedures required under the statute and the ordinance.

Under the statute, a home rule city may demolish a structure which is either dilapidated, substandard, or unfit for human habitation and which constitutes a hazard to the health, safety, and welfare of the citizens. Section 27-13 of Ordinance No. 15198 states that a structure is substandard if the owner of the structure fails to comply with one or more of the minimum standards of Section 27-11, and the structure is a hazard to the health, safety and welfare of an occupant or other person. Therefore, under both the statute and the ordinance, before a structure may be demolished, it must be found to be a hazard to the health, safety, and welfare of the public. We are then presented with the question of whether a municipal administrative body is empowered to make such a finding, and pursuant thereto, order or permit demolition — or whether such a finding that a structure is a nuisance in fact must be made by a court of competent jurisdiction before it may be demolished. That question is answered by Crossman and later cases following its holdings. We are bound to follow Crossman’s holdings for two reasons. Obviously, a condition which is a hazard to the health, safety and welfare of the public falls within any possible definition of nuisance, and the property rights involved here are virtually identical to those involved in Crossman and its progeny.

We point out here that the question of the validity of the ordinance is not before us, and we express no opinion on that question.

“A citizen’s property, not a nuisance within itself or under the common law, cannot be destroyed without the judgment of a court finding that it is in fact a nuisance. . . . If in fact this property is a nuisance, the decree of a court of competent jurisdiction must first adjudge it to be so before the property may be lawfully destroyed. [Citations omitted.]” Cross-man v. City of Galveston, supra at 813. Neither the Legislature nor the city council can by a declaration make that a nuisance which is not in fact a nuisance, and the question as to whether or not a building is a nuisance is a justiciable question, determinable alone by the court or jury trying the case. Whether the building in controversy is in fact a nuisance is to be established by legal and competent evidence, in the same manner as any other fact, and the burden is upon the City to do this. City of Texarkana v. Reagan, 112 Tex. 317, 322-323, 247 S.W. 816, 817-818 (1923). City of Houston v. Lurie, supra at 875. See also Bielecki v. City of Port Arthur, 12 S.W.2d 976 (Tex.Com.App.1929, judgmt adopted); Hill v. Villarreal, 383 S.W.2d 463, 466-467 (Tex.Civ.App.—San Antonio 1964, writ ref’d n. r. e.); City of Houston v. Adams, 326 S.W.2d 627, 631 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.); Mast v. Oakley-Metcalf Funeral Home, 101 S.W.2d 819 (Tex.Civ.App.—Beaumont 1937, no writ).

The record does not reflect whether the Urban Rehabilitation Standards Board made a determination that the house was a hazard to the health, safety and welfare of the citizens, or whether the city council made such a determination. However, had the Board or the council made such a determination, in our view, the City would have been without authority to demolish the house in the absence of a judicial determination that the house was a nuisance in fact. City of Texarkana v. Reagan, supra at 817; City of Carthage v. Allums, 398 S.W.2d 799, 804 (Tex.Civ.App.—Tyler 1966, no writ).

The trial court’s finding that appellant’s house is “unfit for human habitation and is a nuisance” recognizes the applicability of the foregoing cases. In effect the court found the house to be a hazard to the health, safety and welfare of the public, and such finding was necessary before the City could demolish the structure.

In considering appellant’s argument that there is no evidence to support the court’s finding that the house was a nuisance, we may consider only the evidence and inferences in support of the finding while disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In view of the evidence already detailed, we hold that there is more than a mere scintilla of evidence to support the court’s finding. Appellant’s point one is overruled.

In examining the factual sufficiency of the evidence to support the court’s finding, we must consider the whole record to determine if the court’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). After a review of the entire record and after having weighed and balanced all the evidence, both that in favor of and against the judgment, we hold the trial court’s finding that the house is a nuisance is not supported by sufficient evidence. Appellant’s point two is sustained.

It is settled law that the grant or refusal of an injunction is ordinarily within the sound discretion of the trial judge, and his action will be reversed only when a clear abuse of that discretion occurs. Repka v. American National Ins. Co., 143 Tex. 542, 186 S.W.2d 977, 981 (Tex.1945); Bull and Bear Club, Inc. v. San Antonio Bull and Bear Club, 424 S.W.2d 489, 490 (Tex.Civ.App. —San Antonio 1968, no writ); King v. Miller, 280 S.W.2d 331, 333 (Tex.Civ.App.—Eastland 1955, writ ref’d n. r. e.). In view of our holding that the evidence was insufficient to support the trial court’s finding of nuisance, we hold that the trial court abused its discretion in refusing to grant the injunction.

In his points of error three and four appellant complains that the trial court erred in entering judgment for defendant on its finding that appellant’s house could not be repaired so that it was not a nuisance without substantial reconstruction because there was no evidence to support such a finding, and because such finding was against the great weight and preponderance of the evidence. In view of our holding as to appellant’s point two, these latter points are immaterial to our disposition of the case.

The judgment of the trial court is reversed, the order dissolving the temporary injunction is set aside, and the cause remanded to the trial court.

      . “(b) Structure/ standards. An owner shall:
      (1) protect the exterior surfaces of a structure which are subject to decay by application of paint or other coating;
      (2) fill hollow, masonry supporting piers, if used, with concrete and anchor the piers to concrete footings with a ⅝" steel dowel;
      (3) provide and maintain railings for stairs, steps, balconies, porches, and elsewhere as specified in the Dallas Building Code;
      (4) repair holes, cracks, and other defects reasonably capable of causing injury to a person in stairs, porches, steps and balconies;
      (5) maintain a structure intended for human occupancy in a weather-tight and watertight condition;
      (6) maintain floors, walls, ceilings and all supporting structural members in a sound condition, capable of bearing imposed loads safely;
      (7) provide cross-ventilation of not less than 1‘A square feet for each 25 lineal feet of wall in each basement, cellar, and crawl space;

        (8) repair or replace chimney flue and vent attachments that do not function properly;
      (9) repair holes, cracks, breaks, and loose surface materials that are health or safety hazards in or on floors, walls, and ceiling; and
      (10) provide and maintain a moisture-resistant finish or material for the floor on each bathroom, shower room, and toilet room.
      “(c) Utility standards. An owner shall:
      (1) provide and maintain connections to discharge sewage from a structure or land into a public sewer system where available;
      (2) provide and maintain a toilet connected to a water source and to a public sewer, where aváilable, in each structure intended for human habitation;
      (3) provide and maintain connections and pipes to supply potable water at adequate pressure to a structure intended for human occupancy;
      (4) provide and maintain a device to supply hot water of a constant minimum temperature of 120° Fahrenheit within each structure intended for human habitation;
      (5) provide and connect a kitchen sink, bathtub or shower, and lavatory to a cold and hot water source in each structure intended for human habitation;
      (6) connect plumbing fixtures and hearing equipment that the owner supplies in accordance with the Dallas Plumbing Code and Dallas Mechanical Code;
      (7) provide heating equipment capable of maintaining a minimum inside temperature of 68° Fahrenheit or utility connection for such equipment in each room of a structure intended for human occupancy;
      (8) provide and maintain supply lines for electrical service to each structure intended for human occupancy if electrical service is available within 300 feet;
      (9) connect each heating and cooking device that bums solid fuel to a chimney or flue; and
      (10) provide and maintain electrical circuits and outlets sufficient to safely carry a load imposed by normal use of appliances and fixtures.”

      . Tex.Rev.Civ.Stat., art. 1096d (1914).


author: SPURLOCK, Justice.

text:
    Robert LEE BOONE, Appellant, v. UNITED FOUNDERS LIFE INSURANCE COMPANY of Texas, Appellee.
    No. 17957.
    Court of Civil Appeals of Texas, Fort Worth.
    April 20, 1978.
    Rehearing Denied May 18, 1978.

      Dushman, Greenspan & Friedman, and Jack Friedman, Fort Worth, for appellant.
    McGuire, Levy, Collins & McGurley, and Albert Levy, Irving, for appellee.
   OPINION

SPURLOCK, Justice.

This is an action by an insured against his insurer for recovery under an insurance policy for “entire and irrecoverable loss of sight” in one eye. After a nonjury trial, the trial court rendered a take-nothing judgment against the plaintiff. From this judgment, the plaintiff has perfected his appeal.

We reverse and remand.

The insurer issued a policy which insured the plaintiff for $2500 for the “entire and irrecoverable loss of sight” in one eye. On September 6, 1974, while the policy was in force, the plaintiff was struck in the left eye by a piece of shattered glass, which resulted in an extensive laceration and loss of vision in that eye. Surgery was initially performed on September 8,1974, in order to close the laceration of the cornea. Surgery was also performed on October 2, 1974, in order to remove a traumatic cataract that had developed in the eye. Later, a conjunc-tival cyst developed in the left eye, necessitating a third operation; this last operation was performed on July 9, 1976.

The trial court made the following findings of fact:

“1. The Court finds that the loss of sight in Plaintiff’s eye, within ninety days of the date of the accident in question, was entire.” (The insurer does not attack this finding of the trial court by way of cross assignment of error.)
“2. The Court finds that the loss of sight in Plaintiff’s eye, within ninety days of the date of the accident in question, was not irrecoverable.
“3. The Court finds that a reasonably prudent person, under the same or similar circumstances as those of the Plaintiff, would have submitted to proper medical and surgical treatment to seek recovery of the loss of sight.”

Based upon these findings of fact, the court’s conclusion of law was that the plaintiff was not entitled to benefits under the terms of the insurance policy in question.

By his first point of error, plaintiff contends that the “finding of the trial court that the loss of sight in question was not ‘irrecoverable’ is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.”

The applicable rule of law was set forth in the case of Southland Life Ins. Co. v. Dunn, 71 S.W.2d 1103,1106 (Tex.Civ.App.— El Paso 1934, Writ Dism’d), wherein the court wrote:

“An entire loss of the use of a limb or organ of the body, which loss may be completely or substantially recovered, regained, or remedied, by proper medical or surgical treatment and which treatment would be undergone by an ordinarily prudent person under the same or similar circumstances, is not to be justly considered as an irrecoverable entire loss.”

This same rule was set forth in the case of Reliable Life Insurance Company v. Steptoe, 471 S.W.2d 430 (Tex.Civ.App.—Tyler 1971, no writ).

In the case before us, the testimony of two doctors was obtained by way of written interrogatories. These interrogatories, together with the doctors’ answers thereto, were received into evidence.

It is well-established that a physician’s opinion testimony must be based upon “reasonable medical probability”, as opposed to a mere “possibility”, in that almost anything is “possible” in the field of medicine. Otis Elevator Company v. Wood, 436 S.W.2d 324, 331 (Tex.1968). By the written interrogatories to the two doctors, the plaintiff’s attorney carefully instructed the doctors to base their opinions upon reasonable medical probability.

Thomas Hunter Smith, M. D., who specializes in ophthalmology, was one of the two medical doctors who gave testimony on the issue of “irrecoverability”. The crucial portion of his testimony was as follows:

“We discussed a corneal transplant with Mr. Boone and he was not sure that he was interested. We explained the risk of infection, graft rejection, secondary glaucoma, retinal detachment, death from general anesthesia, and all possible complications of this surgery, and he said that he would consider this and discuss it with his family and let us know if he desired to pursue this, and we have not heard from Mr. Boone since.
“At that time, we did not feel that any additional medication or other medical treatment was efficacious at that time and the only possibility of rehabilitation would be with the surgical procedure.”

N. Thomas O’Keefe, M. D., another medical doctor specializing in ophthalmology, elaborated on the sophisticated surgical procedure known as a corneal transplant. A portion of his testimony was as follows:

“I feel that he should be evaluated by an opthalmologist (sic) who does corneal transplants to see if his vision could not be improved by removing the scar from the left cornea and having a clear corneal transplant.”
“The procedure is the corneal transplant. The ultimate visual ability would be determined after an adequate healing period, and really is not predictable.
“I think the chances are greater than fifty-fifty in his favor of improving his vision; however, this opinion would best come from someone who is going to do the procedure.”

The plaintiff in this case has lost his sight. At best, the evidence indicates the mere possibility of a successful corneal transplant. The following considerations (among others) are important in determining the feasibility of a corneal transplant:

“If the history and cause of death of the prospective donor are acceptable, the surgeon must then consider the age of the donor in relation to the age of recipient. If the recipient is a young person, then the donor should not be an aged person. The closer in age the better. The age span for donors can generally be listed as ten years to sixty years.” 6 Lawyers’ Medical Cyclopedia § 39.27 at 54 (1977).
“Anyone over eighteen years of age can pledge to become a donor. A form is filled out and signed by two witnesses, and returned to the nearest eye bank. The donor gets a card and a small orange sticker for his driver’s license.
“Morticians in several states have been and are continuing to be trained in the technique of removing the eyes of a deceased, so that they may be used to restore the sight of the blind. The eyes should be removed within four hours of death. The transplant of a fresh cornea should be done within 24 to 36 hours. The sooner the transplant is done, the better the condition of the graft. Some corneas, however, are frozen and stored for use at a later date.” Id. § 39.28 at 55.

Plaintiff argues that even if a successful corneal transplant were performed, he would nevertheless be entitled to recover under the terms of the insurance policy, since he would no longer have his sight, but would be “seeing” out of someone else’s eye. We agree. Although there is no Texas case directly on this point, we are guided by the well-written opinion by the Supreme Court of Utah in Knuckles v. Metropolitan Life Insurance Company, 25 Utah 2d 319, 480 P.2d 745 (Utah 1971), where the court wrote:

“It would seem that it would not be unreasonable to conclude that the purpose of the insurance was to compensate for a hand or a foot or a sight once lost, — albeit the sight, like the hand, artificially may be made serviceable. Some people might interpret the language of the dismemberment clause that way, — and they that did surely would not expect, as the defendant contends in argument, that after suffering blindness through accident, he would have to seek out surgery and medication. If he must do this, his costs, of course, may be twice the face amount of the policy at present-day medical prices, — before he would be entitled to any benefits under the policy. We believe that once the sight is completely destroyed, as was the case here, a person should not be required, at his own expense, to test the possibility of recovering his sight any more than the person, who in the same paragraph of the policy would not be required to do if he lost his hand or foot. . . .” Id. at 747.

Having carefully considered all the competent evidence received by the trial court, we must conclude that the trial court’s finding that the plaintiff’s loss of sight was not irrecoverable is so against the great weight and preponderance of the evidence as to be manifestly unjust.

By his third point of error, plaintiff contends that the “finding of the trial court that a reasonably prudent person under the same or similar circumstances, would have submitted to proper medical and surgical treatment to seek recovery of the loss of sight is so against the great weight and •preponderance of the evidence as to be manifestly wrong and unjust.”

In reviewing the entire evidence, we consider the answers to interrogatories given by Dr. Thomas Hunter Smith to be particularly important. His testimony has been previously set forth in part in this opinion. To reiterate without being unduly repetitious, he testified as to the “risk of infection, graft rejection, secondary glaucoma, retinal detachment, death from general anesthesia, and all possible complications of this surgery . . . .”

Having reviewed all the evidence received by the trial court, we sustain the plaintiff’s third point of error.

Reversed and remanded.


author: CIRE, Justice.

text:
    The DOW CHEMICAL COMPANY, Appellant, v. NAPP-GRECCO COMPANY, Appellee.
    No. 1791.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 26, 1978.
    Rehearing Denied May 17, 1978.

      William Key Wilde, Charles G. King, Ronald R. Scott, of Bracewell & Patterson, Houston, for appellant.
    Donald B. McFall; Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   CIRE, Justice.

The Dow Chemical Company appeals from a trial court order which granted a special appearance filed by Napp-Grecco Company pursuant to Texas Rule of Civil Procedure 120a.

The underlying cause of action which gives rise to this appeal accrued when á liquified natural gas storage facility was destroyed on February 10, 1973 in New York. Numerous personal injury and wrongful death actions were filed in New York as a result of the explosion. While these New York actions were pending, Texas Eastern Transmission Corporation and Texas Eastern Cryogenics, Inc., the owners and operators of the storage facility, filed suit in February 1975 in Harris County, Texas and named The Dow Chemical Company and Battelle Memorial Institute as defendants. The two Texas Eastern companies sought recovery from the defendants, alleging that they sustained property damage and other losses totaling $135,000,000.00.

In December of 1975 Dow filed a third party action against Napp-Grecco, the contractor for the repair of leaks at the storage facility, and others seeking contribution and indemnity for any loss incurred by Dow in the suit filed by the Texas Eastern companies. Dow alleged that Napp-Grecco was a foreign corporation doing business in Texas without maintaining either a regular place of business, or a registered agent for service within the state and could be served with citation by serving the Secretary of the State of Texas pursuant to article 2031b of the Texas Revised Civil Statutes.

In March 1976 in New York, Texas Eastern Transmission Corporation and Texas Eastern Cryogenics entered into a “Memorandum Agreement of Settlement” with Napp-Grecco and several other parties. The agreement stated that “with respect to all disputed claims and/or actions . arising out of the incident of February 10, 1973” the plaintiffs obligated themselves to defend “all claims for injury to property owned by Texas Eastern Transmission Corp. and Texas Eastern Cryogenics, Inc. now pending or which may hereafter be asserted against . . . Napp-Grecco Co.” The agreement specifically stated:

Texas Eastern Transmission Corp. and Texas Eastern Cryogenics, Inc. will indemnify and hold harmless each of the other defendants named herein from any loss or damage or reasonable expense of litigation, including reasonable counsel . fees, subject to the limitations herein arising out of any claims now pending or hereafter asserted in the 157th Judicial District Court of the State of Texas, Harris County, or in any other jurisdiction

Texas Eastern was free to choose counsel to represent Napp-Grecco, subject to Napp-Grecco’s approval, and Napp-Grecco agreed to deliver to Texas Eastern all documents, evidence and persons under its control reasonably related to the issues involved in the litigation.

In April 1976 Napp-Grecco filed its special appearance pursuant to Texas Rule of Civil Procedure 120a, objecting to the jurisdiction. The motion alleged that the attempted service of citation pursuant to article 2031b of the Texas Revised Civil Statutes was not effective because Napp-Grecco was not at any time a resident of the State of Texas and was not at any time engaged in business or doing business in Texas and, as a consequence, the trial court had no jurisdiction over Napp-Grecco.

The trial court heard the special appearance in August 1977. The witness testifying for Napp-Grecco was its Vice President and Treasurer, Joseph M. Napp. Through him Napp-Grecco proved that it had never maintained an office, retained an agent, qualified to do business, solicited any business, or done any business in the State of Texas. Dow Chemical Company then introduced the March 12, 1976 agreement showing specifically that in that agreement Texas Eastern agreed to indemnify Napp-Grec-co from losses arising out of this law suit, select and pay Napp-Grecco’s attorneys and approve their fees, and control the terms of any settlement, and that Napp-Grecco agreed to make available to Texas Eastern documents, evidence and persons having information relating to the issues in this suit. On September 20, 1977 the trial court sustained the special appearance and dismissed Napp-Grecco from the original suit.

Appellant Dow asserts a single point of error, claiming that the trial court erred in granting Napp-Grecco’s special appearance. Dow frankly admits that the only issue before this court is whether the performance of the “Memorandum Agreement of Settlement” by Napp-Grecco constitutes sufficient conduct on its part to subject it to a Texas court’s jurisdiction. Dow relies on the case of U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.Sup.1977). The Court, quoting from O’Brien v. Lanpar Company, 399 S.W.2d 340, 342 (Tex.Sup. 1966), reaffirmed the three basic elements that must exist to sustain jurisdiction over a nonresident:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

553 S.W.2d at 762. (The Court in O’Brien directly adopted this language from Tyee Const. Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (1963).)

Appellant argues that the agreement of Napp-Grecco to provide Texas Eastern in the Texas suit with documents, evidence or witnesses under its control satisfies the first requirement. We cannot agree with this contention. Napp-Grecco had nothing to do with the filing of the suit in Texas and the mere fact that parts of the New York agreement concerned the Texas suit cannot be said to be an act “purposefully” conducted within this state. To paraphrase the language in the U-Anchor case, Napp-Grec-co’s “contacts with Texas were not grounded on any expectation or necessity of invoking the benefits and protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas.” The agreement (as far as the record reflects) “was solicited, negotiated and consummated” in New York and Napp-Grecco “did nothing to indicate or to support an inference of any purpose to exercise the privilege of doing business in Texas.” To hold otherwise, we believe would violate the due process requirements enunciated in Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228,1239, 2 L.Ed.2d 1283, 1298 (1958) and quoted in the U-Anchor decision:

The unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

553 S.W.2d at 763.

Appellant’s point of error is overruled.

Affirmed.

J. CURTISS BROWN, C. J., not participating.


author: J. CURTISS BROWN, Chief Justice.

text:
    Albin FINKE, Appellant, v. Gloria WHEATFALL et al., Appellees.
    No. 1647.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 26, 1978.
    Rehearing Denied May 17, 1978.

      Charles E. Fitch, DeLange, Hudspeth, Pitman & Katz, Houston, for appellant.
    Michael Crawford, Fender & Crawford, Houston, Oliver S. Kitzman, Brookshire, William F. Jackson, Claude B. Lilly, Hemp-stead, Ben L. Adams, Jr., Houston, for ap-pellees.
   J. CURTISS BROWN, Chief Justice.

Mary Valentine and the collateral heirs of Dan Gaston filed a petition to partition the Dan Gaston 50-aere tract of land in Waller County, Texas. Valentine alleged that she was the owner of an undivided one-half interest in the tract as the devisee under the will of one Pearlie Steptoe Gaston. Certain alleged collateral heirs of Dan Ga-ston claimed ownership in the other one-half by virtue of the statute of descent and distribution. Writ of partition was issued, a receiver was appointed, and the property was sold to Albin Finke (appellant) in December 1974. On March 20,1975, the appel-lees filed their motion for new trial to set aside the judgment based on citation by publication under provisions of Rule 329 and a cross-action in the nature of trespass to try title.

Following a non jury trial, judgment was rendered setting aside the granting of the writ of partition, the receiver’s deed pursuant thereto, and the report, sale and order confirming the sale insofar as they affected the interest awarded to appellees. The judgment was in favor of the appellees as against the defendants in the trespass to try title action who defaulted. Judgment was also rendered granting the appellees an undivided one-half interest in the property being the community interest of one Mary Jane Young Gaston.

In due course, the trial court made the following findings of fact in the cause submitted to it: Dan Gaston and Mary Jane Young were married ceremonially in Waller County, Texas on December 18,1917. Mary Jane Young Gaston had one child, Elizabeth Gaston, who was born on February 2, 1910. Following their marriage, Dan and Mary Jane Gaston had no other children. During the marriage, Dan and Mary Jane purchased the 50-acre tract of land in question from Fritz Horn (Horn) by general warranty deed with vendor’s lien dated January 30, 1919. The marriage continued until the death of Mary Jane in 1942. The grantor of the land released the vendor’s lien on the realty described and quitclaimed to Dan Gaston by release and deed dated November 1, 1924. From January 30, 1919 until October 3, 1942, Dan and Mary Jane lived and resided on the 50-acre tract that had been conveyed to them by Horn. Elizabeth Gaston, the daughter of Mary Jane Gaston, had five children. The appellees are the children of Elizabeth Gaston, along with the five children of her daughter Adelle Robinson, who died intestate. Dan Gaston, the surviving spouse of Mary Jane Gaston, married Pearlie Steptoe. After 1943, Dan Ga-ston and his new wife did not live on the land and it was never their residence. On August 1,1969, an affidavit of heirship was filed in the deed records of Waller County asserting a claim of ownership in the property on behalf of the appellees, who are the direct descendants of Mary Jane Gaston, the first wife of Dan Gaston. In 1971, the appellant met with the appellees and offered to purchase the 50-acre tract from the appellees, but no trade was consummated. On January 6,1973, Pearlie Steptoe Gaston, the second wife and surviving widow of Dan Gaston, died testate leaving her estate to Mary Valentine. The appellant then entered into negotiations in which he sought to acquire the property through Mary Valentine. Pursuant to this effort, an heirship proceeding for Dan Gaston was instituted in the County Court of Waller County. No service of citation was made or attempted in said heirship proceeding on the appellees, and none of them had any notice of such proceeding. In February 1973, the appellant employed and delegated to the Hemp-stead Abstract Company and his attorney and agent Claude Lilly the responsibility for determining the title to the 50-acre tract in question. At all times after February 1973, these agents of Finke possessed, and had actual knowledge of, the affidavit of heirship filed by the appellees. Those agents also had actual knowledge that ad valorem taxes on this tract had been continuously paid by one of the appellees. No service of citation in the partition suit had been had upon the appellees, nor did any of them have any notice of any kind of the proceeding until after the order of partition and sale.

On November 30,1974, a writ of partition was issued by the district court of Waller County, Texas. The court found, in substance, that no partition in kind was possible and ordered a receiver to be appointed to sell the real estate described as:

50.174 acre tract of land situated in W. E. Baker Survey, Abstract No. 70, Waller County, Texas. Said 50.174 acre tract ■ being called a 50 acre tract of land in deed dated January 30, 1919, from Fritz Horn to Dan Gaston recorded in Vol. 77, Page 323 of the Deed Records of Waller County Texas. Said 50.174 acre tract being described as follows: Beginning at 1¼ inch iron pipe at fence corner for S.E. corner of this tract at North side of Courtney Public Rd. as road turns South. Said corner being in East line of W. E. Baker Survey and West line of W. J. White Survey. Said corner bears North 2049.0 feet from recognized Southwest corner of the Dudley J. White Survey and Southwest corner of the Frederick estate. Thence South 89° 6" W. along North line of Courtney Public Rd. 1521.60 feet to iron rod found for Southeast corner of the Meineke 50.89 acre tract of land. Thence N 1° 23' W. along a marked cut line of old fence line 1424.73 feet to iron rod found for Northeast corner of said Meineke tract and Northwest corner of this tract. Thence N 89° 25' 5" E. along a cut and marked line along old fence line 1555.89 feet to iron axle for Northeast corner of this tract in West line of Frederick estate tract. Thence South along cut and marked line along fence line 1416.22 feet to point of beginning. Containing 50.174 acres of land with [encroachment] of 0.067 acre on the East line of this tract and 0.139 acre on North side of this tract leaving a fenced acre of 49.968 acres of land as surveyed by W. D. Kennedy, Registered Surveyor No. 511, December 12, 1974.

On December 17,1974, the receiver sold the tract of land in question to the appellant. At that time, less than 30 days had passed since the entry of the order of partition on November 30, 1974. The appellant had actual knowledge of the appellees’ claim to the land in question at all relevant times. The heirship proceeding in the estate of Dan Gaston did not describe the tract of land originally conveyed to Dan Gaston and Mary Jane Gaston by the deed from Horn. The petition to partition was similarly deficient. The appellees first had knowledge of the proceedings in the partition suit about January 31, 1975, and thereafter filed a motion for new trial and a trespass to try title suit. This motion and suit were filed less than two years after the signing of the writ of partition on November 30, 1974. The trial court further found that certain named defendants had been duly served with citation in the trespass to try title suit and had wholly failed to appear and answer. A motion for default judgment which had been made by the appellees with respect to these defendants was granted.

Appellant has duly perfected his appeal and assigns nine points of error. These points may be fairly summarized as follows: (1) that the appellees introduced no evidence identifying the property claimed nor establishing its location on the ground; (2) that the appellees introduced no evidence of record title to the 50-acre tract of land in controversy; (3) that the trial court erred in finding that Dan and Mary Jane Gaston had purchased the land in dispute from Fritz Horn; (4) that the trial court erred in rendering judgment in favor of the appel-lees with respect to the defaulting defendants; and (5) that the court erred in permitting the witnesses Garrett and Lilly to testify with respect to the location of the property on the ground.

The appellant’s contentions relating to lack of sufficient evidence of identity and location of the property and his claims as to the inadmissibility of the evidence given by the witnesses Garrett and Lilly are related and will be discussed together. The appellant testified and described the property in question as being the “Dan Gaston” place. He also testified that he was familiar with the land, that it was fenced, that it had been cultivated, and that the remains of the Dan Gaston residence were located on the property. He further testified that he had been in possession of the property in question since December 1974. He employed Mr. Lilly and Hempstead Abstract Company to do the title work for the purchase of the Gaston tract. Mr. Lilly also acted as his attorney in the transaction in which he purported to purchase the tract in question from the receiver. The appellant knew that he was undertaking to purchase the Gaston property. Mr. Lilly testified that he knew about the affidavit of heirship filed on behalf of the appellee, the release of the vendor’s lien note from Horn to Gaston, an oil and gas lease in 1933 from Gaston to Camp, and other items reflected by his business records. He testified that the title policy was based upon a survey made by a registered public surveyor of the legal description of the tract in the W. E. Baker Survey, Abstract 70. The witness Garrett testified that the description of the property in the partition suit failed to name the state in which the property was located and made no reference to an abstract or to the name of a survey. She also testified that the description in the petition and citation by publication failed to close. The appellant also testified that before he undertook to purchase the property from Mary Valentine he had a meeting with the appellees in which he made a cash offer to purchase the property for $250 an acre and that he knew that he was dealing with the Dan Gaston 50-acre tract. He further testified that at the time when he was dealing with the others he was dealing with the same tract. We are basing our decision in this case on superior title from a common source.

The appellees, however, offered instruments including the patent from the State of Texas to Walter E. Baker on April 8, 1856. They also offered a deed from J. A. Danford to Fritz Horn identifying the tract in Waller County, Texas. The deed is difficult to read but appears to describe the property as follows:

Beginning at a pin oak sapling 4 in in dia on the west Boundary line of the J. E. Baker Survey, the North East Corner of a survey formerly made by F. Schultz from which a post oak 14 in dia marked M brs. S. 77½ W. 13 varas. Thence N.l W. 528¾⅞ vrs. to stake for corner. Thence S. 89 W. 534 varas to a red oak 6 in. in dia. for corner. Thence S. 1 E. 528½ vrs. to stake from which a red oak 4 in in dia • marked H brs. S. 11½ W. 3 vrs. Thence N. 89 E. 534 varas, to place of beginning. Containing 50 acres of land out of the John Baker survey.

The appellees then introduced the deed from Fritz Horn to Dan Gaston, which contained the following description of the same property:

Beginning at a pin oak Sapling 4 In" in diameter on the W. boundary line of the J. E. Baker survey, the N. E. cor. of a survey formerly owned by F. Schultz from which a post oak 14 in. in Dia. marked M. brs. s. 77½ W. 13 vrs; Thence N. 1 W. 528 vrs. to stake for cor; Thence S. 89 W. 534 vrs. to a red oak 6 in. in dia. for cor. Thence S. 1 E. 528V2 vrs. to a stake from which a red oak 4 in. in dia. mrkd. H bears S. 11½ W. 3 vrs; Thence N. 89 E. 534 vrs. to the place of beginning, containing fifty (50) acres of land, being the same land [conveyed] to Fritz Horn by J. A. Danford and [wife by] deed dated Nov. 9, 1901, to which deed [reference] is here made for more particular description.

The release of the lien securing the debt on the Gaston tract was executed November 1, 1924. It referred to the Horn deed to Ga-ston of January 30, 1919. The contract of sale between Valentine and Finke contained the following description:

Beginning at a pin oak Sapling 4" in dia. on the W. boundary line of the J. E. Baker Survey the NE cor. of a survey formerly owned by F. Schultz from which a post oak 14" in dia. marked M brs. S. 77½ W. 13 vrs; Thence N. 1 W. 528 vrs. to a stake for cor.; Thence S. 89 W. 534 vrs. to a red oak 6" in dia. for cor.; Thence S. 1 E. 52872 vrs. to a stake from which a red oak 4" in dia. mrkd. H bears S. 1172 W. 3 vrs.; Thence N. 89 E. 534 vrs. to Place of Beginning, containing 50 acres of land.

Lilly’s records disclosed a right-of-way easement to Waller County referring to 50 acres out of the W. E. Baker Survey, Abstract No. 7, and described as being on

that 50 ac tr out of W. E. Baker Surv Ab . 70 desc in deed fr Fritz Horn to Dan Gaston rec 77/323 & de sc as foil: BEG: at SEC of sd 50 ac tr, a stk in EL of W. E. Baker surv & run W with SL sd 50 ac tr & to SWC thereof; TH N with WL sd 50 ac tr 50'; TH E & parallel with SL of sd 50 ac tr to EL & EL of sd Baker Surv; TH S with EL of sd 50 ac & sd° W. E. Baker Surv 50' to pi of beg for purp of constr a permanen pub rd.

The tax certificates identified the property as Abstract Number 70 of the W. E. Baker Survey containing 50.174 acres and rendered as a 50-acre tract. These taxes were paid by one of the appellees. The Gaston tract was surveyed by W. D. Kennedy Registered Surveyor No. 511, December 12, 1974, and was described as follows:

50.174 acre tract of land situated in W. E. Baker Survey, Abstract No. 70, Waller County, Texas. Said 50.174 acre tract being called a 50 acre tract of land in deed dated January 30, 1919, from Fritz Horn to Dan Gaston recorded in Vol 77, Page 323 of Deed Records of Waller County, Texas. Said 50.174 acre tract being described as follows: Beginning at 174 inch iron pipe at fence corner for S.E. corner of this tract at North side of Courtney Public Rd. as road turns South. Said corner being in East line of W. E. Baker Survey and West line of W. J. White Survey. Said corner bears North 2049.0 feet from recognized Southwest corner of the Dudley J. White Survey and Southwest corner of the Frederick estate. Thence South 89° 6' W. along North line of Courtney Public Rd. 1521.60 feet to iron rod found for Southeast corner of the Meineke 50.89 acre tract of land. Thence N Io 23' W. along a marked cut line of old fence line 1424.73 feet to iron rod found for Northeast corner of said Meineke tract and Northwest corner of this tract. Thence N 89° 25' 5" E. along a cut and marked line along old fence line 1555.89 feet to iron axle for Northeast corner of this tract in West line of Frederick estate tract. Thence South along cut and marked line along fence line 1416.22 feet to point of beginning. Containing 50.174 acres of land with [encroachment] of 0.067 acre on the East line of this tract and 0.139 acre on North side of this tract leaving a fenced area of 49.968 acres of land .

The appellant identified the tract for which he had negotiated with both the collateral heirs of Gaston and the direct descendants of his deceased wife as being the land in question. Lilly identified the land as being the same land sued for by the appellees. Throughout the record, the land is referred to as the Dan Gaston tract or the Dan Gaston 50-acre tract. All of the instruments introduced following the deed from Horn to Gaston, including the survey- or’s description, made reference to that deed with the exception of the description contained in the partition citation by publication, the writ of partition, the Valentine contract of sale, and the petition to partition.

We consider the testimony and records of Lilly, who was acting as the agent and attorney for appellant with respect to this matter, to have been admissible. See Kmiec v. Reagan, 556 S.W.2d 567, 569 (Tex.Sup.1977). Furthermore,, we think the evidence fully justified the findings of the trial court identifying the tract in dispute and an adequate description for its location by that court. Documents prepared for a party and with his authorization are admissible as “admissions by adoptions.” Thornell v. Missouri State Life Ins. Co., 249 S.W. 203, 205-08 (Tex.Com.App.1923, jdgmt. adopted); Bolin Oil Company v. Staples, 496 S.W.2d 167, 172-73 (Tex.Civ.App. — Fort Worth 1973, writ ref’d n. r. e.). The appellant’s points one, two and six are overruled.

We agree with the appellant that the appellees failed to show uninterrupted chain of title emanating from the sovereign to the appellees. No deed was introduced from the original patentee, Walter E. Baker, to J. A. Danford, who conveyed the land to Fritz Horn, who in turn conveyed the property in question to Dan Gaston at a time when he was married to Mary Jane Gaston. It is elementary that a plaintiff in trespass to try title may not only recover upon the basis of record title, but may also rely upon a title from a common source, limitation, or from possession of the property at a time antedating the defendant’s possession. 56 Tex.Jur.2d Trespass to Try Title § 7 (1964). The judgment of the trial court in this case is fully supportable by the showing made by the appellees of superior title emanating from a common source. Proof was offered that the appellant claimed title through a devisee of Dan Ga-ston’s second wife, through collateral heirs of Dan Gaston and through collateral heirs of Jim Gaston (Dan Gaston’s brother), whom the appellant claimed was the beneficial' owner of the property.

The appellees, on the other hand, claimed as direct descendants of Mary Jane Gaston who owned her community one-half interest in the land. The record would have supported a finding by the trial court that Dan Gaston recognized the daughter of his first wife (Mary Jane Gaston) as his child and, thus, upon the subsequent marriage, legitimized her. However, the court made no such finding and it is unnecessary for us to consider such evidence or appellees’ contentions of limitation title. The trial court awarded the appellees only the community one-half interest of their mother and grandmother, to which the appellees are entitled by direct inheritance under the findings made by the trial court. The appellant’s point of error number three is overruled.

The appellant, by his point five, contends that the finding by the trial court that Dan and Mary Jane Gaston purchased the property in dispute from Horn is against the overwhelming weight and preponderance of the evidence. Appellant’s contention in this regard is based upon the following recitation in the deed from Horn to Gaston:

the sum of Four Hundred ($400.00) DOLLARS to me cash in hand paid and secured to be paid by Jim Gaston, as follows: $100.00 cash, the receipt of which is acknowledged and confessed, and the execution by the said Jim Gaston of his two promissory V/L notes of even date herewith for the principal [sum] of $150.00 each, due and payable September 1, 1919 and 1920 respectively .

This recitation undoubtedly was sufficient to make a prima facie case of a resulting trust. Burk v. Turner, 79 Tex. 276,15 S.W. 256, 257 (1891). There was, however, ample evidence to rebut any possible presumptions arising out of this recitation and to support the findings of fact made by the trial court.

The appellant chooses to ignore the fact that Dan and Mary Jane Gaston moved on the land and used it as their home until the death of Mary Jane Gaston. Jim Gaston was not shown to have had any further connection with the property whatsoever. No agreement was shown that before or at the time of the conveyance the legal title would be held by Dan Gaston for the benefit of Jim Gaston. See Elbert v. Waples-Platter Co., 156 S.W.2d 146, 150 (Tex.Civ. App.—Fort Worth 1941, writ ref’d w. o. m.). The evidence is overwhelming in support of the proposition that the land was purchased by Dan and Mary Jane Gaston for their own use and benefit and that whatever connection Jim Gaston may have had with helping pay for the property was only incidental. The release of the lien securing the purchase price from Horn to Gaston, dated November 1, 1924, recited that on January 30, 1919 Horn had conveyed the property “to Dan Gaston.” The release and quitclaim ran to “Dan Gaston, his heirs and assigns.” Of course, this release and quitclaim was executed during the possession of the property and during the marriage of Dan and Mary Jane. The evidence is unchallenged that for many years Dan and Mary Jane farmed the property and lived on it as their home. Dan Gaston executed oil and gas leases and easements for rights of way across it. The finding of the trial court is not only not against the great weight and overwhelming preponderance of the evidence, but is more than amply supported in the record. The appellant’s point is overruled.

The appellant contends, finally, that judgment should not have been rendered in favor of the appellees against the defaulting defendants in the trespass to try title suit. Tex.R.Civ.P. 799 provides:

If the defendant, who has been personally served with citation according to law or these rules fails to appear and answer by himself or attorney within the time prescribed by law or these rules for other actions in the district court, then judgment by default may be entered against him and in favor of the plaintiff for the title to the premises, or the possession thereof, or for both, according to the petition, and for all costs, without any proof of title by the plaintiff.

The appellant’s point seven is overruled.

We have carefully considered all of the appellant’s points and they are overruled.

Affirmed.


author: MASSEY, Chief Justice.

text:
    In the Matter of D. J. R., a minor, Appellant, v. STATE of Texas, Appellee.
    No. 18007.
    Court of Civil Appeals of Texas, Fort Worth.
    April 27, 1978.

      William R. Magnussen, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Candyce W. Howell, Asst. Dist. Atty., Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

The case on appeal is from the order of the Juvenile Court of Tarrant County, Texas certifying D.J.R., a minor 16 years of age, to be tried as an adult for alleged criminal offense(s).

We affirm.

There is actually no question but that there exists probable cause for the return of an indictment by the grand jury for one or both the criminal offenses alleged to have been committed by D.J.R. and the opinion will not be burdened by explanation and discussion. The serious question relates to whether he is of sufficient sophistication and maturity to be tried as an adult as such question is to be taken into consideration, along with other appropriate matters, in the determination of whether a minor should be certified to be tried as an adult. Among these is the question of whether the offenses charged were committed in an aggressive and premeditated manner, and the question of prospects of adequate protection of the public, etc., by use of the procedures, services, and facilities available to the Juvenile Court in attempted rehabilitation.

In addition to a point of error on the finding of the Juvenile Court that D.J.R. possessed the sophistication and maturity to be tried as an adult there is another presenting contention that there was insufficiency of the evidence to support the Juvenile Court’s finding that prospects of adequate protection for the public and the likelihood of reasonable rehabilitation of D.J.R. by the use of the procedures, services, and facilities currently available to the court, are doubtful or non-existent.

We would think there to be the presumption that a Juvenile Court would judicially know the facilities available to it at any particular time; at least that would be the presumption in the absence of something presented by a complainant so as to occasion necessity for the state’s attorney to proceed to discharge its burden to establish an inadequacy or unavailability. However it is not necessary to resolve the question in this case by such legal theory for, despite the absence of anything to counter any such presumption, the state did proceed to make that proof. Indeed, D.J.R. had been committed to custody of the Texas Youth Council on October 13, 1976, and had escaped such custody on May 22, 1977, shortly after he attained the age of 16. ■ On the day of his escape the Texas Youth Council had published its request to apprehend and return him as a delinquent child but he remained at liberty for several months to allegedly commit the crimes for which the state sought to have him tried as an adult. Wayne Erickson of the County Juvenile Probation Department testified concerning his familiarity with the background and history of D.J.R. and with the services and facilities available for the Court. He was permitted to give his opinion that the services and facilities were not adequate for the protection of the public and rehabilitation of D.J.R.

Proof introduced into the record included examinations and evaluations of D.J.R., as follows: FIRST OCCASION on May 30, 1972 when he was 11 years of age; SECOND OCCASION on October 23, 1974 when he was 13 years of age; and THIRD OCCASION on August 29, 1977, after the dates of the alleged criminal offenses, and after D.J.R. was 16 years of age.

FIRST OCCASION: Reba Jones, Psychologist for the Public Schools, found D.J.R. of the mental age of 6 years and 10 months, with an Intelligence Quotient of 68. Noted was that both were within the “defective range.”

SECOND OCCASION: Jerold May, Consulting Psychologist, found D.J.R.’s “Culture Fair” intelligence score to be “within the range of borderline intelligence,” with a “first grade” reading level. The conclusion was that “he is apparently in the borderline range of mental retardation.”

THIRD OCCASION: Dr. H. E. Eugene Bonham, M. D., a Psychiatrist, rendered a report to the Tarrant County Department of Juvenile Probation and also testified on trial. In his report he stated that D.J.R. was competent and understood quite clearly the difference between right and wrong. It was by D.J.R. that he was tendered as a witness on trial. On trial he stated to be his ultimate conclusion upon the capacity of D.J.R. that “he has below average I. Q., but [is] not mentally defective.” Further, as a general consensus of the evaluation that he had made, that “he is not mentally retarded, but his I. Q. is below average, and that the last psychological he was given, that the I. Q. really wasn’t valid that he picked up because he [D.J.R.] wasn’t ... responsive . . . . ”

Section 54.02 of the Texas Family Code provides in part as follows:

“5402. Waiver of Jurisdiction and Discretionary Transfer to Criminal Court
(a) The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:
(1) the child is alleged to have violated a penal law of the grade of felony;
(2) the child was 15 years of age or older at the time he is alleged to have committed the offense and no adjudication hearing has been conducted concerning that offense; and
(3) after full investigation and hearing the juvenile court determines that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal proceedings.
(f) In making the determination required by Subsection (a) of this section, the court shall consider, among other matters:
(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.”

We hold that there was adequate evidence that D.J.R. possessed the sophistication and maturity to be tried as an adult, and that the Juvenile Court’s finding to that effect (along with all the other findings upon the matters to be taken into consideration in the ultimate determination of whether original jurisdiction should be waived) was not contrary to the greater weight and preponderance of the evidence.

By so holding we do not mean to indicate that were our holding to the contrary there would be occasion for reversal. We agree with the Texarkana Court of Civil Appeals in its statement upon the meaning of the law under consideration in Matter of J. R. C., 551 S.W.2d 748, 753 (Tex.Civ.App.—Texarkana 1977, writ ref’d n. r. e.), as follows:

“Although there was ample evidence on all the criteria enumerated in Subsection (f) of the statute, it should be borne in mind that Section 54.02 does not require that, in order for the juvenile court to waive its jurisdiction, all of the matters listed in Subsection (f) must be established. Rather, it provides that the court may waive its jurisdiction if it finds that, because of (1) the seriousness of the offense, or (2) the background of the child, the welfare of the community requires criminal proceedings instead of juvenile proceedings. The statute only directs that the juvenile court consider the matters listed under Subsection (f) in making its determination. See In re W. R. M., 534 S.W.2d 178 (Tex.Civ.App. Eastland 1976, no writ). They are the criteria by which it may be determined if the juvenile court properly concluded that the seriousness of the offense or the background of the child required a transfer to criminal court. The juvenile court must consider those criteria in order that the appellate court may have a meaningful review of the basis upon which the conclusion was made, and can determine if the evidence so considered by the juvenile court does in fact justify the conclusion that a transfer is required. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045,16 L.Ed.2d 84; In re J. R. C., supra.

The ultimate question in the determination of our appellate decision is whether (1) with all the matters to be taken into consideration as provided by § 54.02 of the Texas Family Code; (2) there was not an abuse of discretion by the Juvenile Court in certifying the juvenile defendant to be tried for the alleged crime as an adult. When the appellate court can find in the affirmative to both these elements of the question the decision of the Juvenile Court should be upheld; when the appellate court cannot find in the affirmative to both elements it should reverse the certification, coupling therewith a decision upon rendition or remand.

Here we find that both of the questions are to be answered in the affirmative, with the certification upheld.

Judgment is affirmed.


author: REED, Justice.

text:
    John Charles GOLDFUSS, Jr., Movant, v. Mary Lee GOLDFUSS et al., Respondents.
    Supreme Court of Kentucky.
    April 11, 1978.
    Gerald T. Ashcraft, Covington, for mov-ant.
    William I. Bubenzer, Covington, for respondent.
   REED, Justice.

I

The Kenton Circuit Court entered a judgment approving the adoption of an infant by a married couple with whom he had been placed by a licensed child care agency, after his natural mother had voluntarily terminated her parental rights. The child’s natural father executed a “notarized” and “witnessed” consent to the child’s adoption. The father’s parental rights were not terminated. He was neither made a party in the mother’s voluntary termination proceeding nor was he made a party in the subsequent adoption proceeding. His parental rights simply have not been terminated in either a voluntary or involuntary proceeding.

The guardian ad litem filed an appeal on behalf of the child sought to be adopted to the Court of Appeals. That court affirmed the judgment of adoption. We granted discretionary review.

Although we sympathize with the motivation of the trial judge and that of the Court of Appeals in upholding this judgment, we are convinced it is better to face the prospect that this legitimate child now appears to have two legal fathers than to attempt to deal with the problem years from now when intervening events would doubtless make the trauma all the more unendurable. Compliance with the applicable statutes will assure that “all connections, legal and personal, with any natural parent [are ended].” Jouett v. Rhorer, Ky., 339 S.W.2d 865, 868 (1960). We reverse the decision of the Court of Appeals and remand the case to the Kenton Circuit Court with directions to set aside the judgment and for any further proceedings consistent with this opinion.

II

On April 2, 1976, the natural mother of the child filed a petition for voluntary termination of her parental rights. Her petition stated that she had been married and divorced. Filed in this same proceeding was a consent to adoption signed by the child’s “legal” father. It was not recited that he had sworn to the recitals contained in the document. There was no jurat or acknowledgment by him. There were merely two notations, one stating in substance that the signing individual was a “witness” and the other that another signing individual “notarized” something unspecified. The father filed no petition for a voluntary termination of parental rights. The trial court entered an order terminating the parental rights of the mother only.

On April 13, 1976, a petition for adoption was filed by the married couple with whom the child sought to be adopted had been placed by the child care agency. This petition named as defendants the child sought to be adopted, the child care agency and “Department of Child Welfare (sic), Commonwealth of Kentucky.” The child’s father was not named a party defendant. The petition incorrectly alleged that the parental rights of the parents' had been terminated. It also alleged the necessity of the appointment of a guardian ad litem for purposes of defense in the proceeding. A guardian ad litem was appointed.

The guardian ad litem filed a written response to the petition for adoption wherein he asserted that neither sworn consents of the natural parents to the adoption nor certified copies of orders terminating the parental rights of the natural parents had been filed in the adoption proceedings. The trial court ordered that a copy of the judgment terminating parental rights be filed in the adoption record. After a hearing and over objections of the guardian ad litem a judgment of adoption was entered August 20, 1976.

Ill

KRS 199.480 provides in pertinent part: “The following persons shall be made parties defendant in an action for leave to adopt a child:

(b) The natural living parent of a child under eighteen (18), if the child is legitimate, . . . provided that no natural parent need be made a party defendant in the event the parental rights of such parent have been terminated under KRS 199.600 to 199.630, or under a comparable statute of another jurisdiction;” (Emphasis supplied).

It is conceded that the child whose adoption is sought is legitimate and that the natural father of the child is known. The parental rights of the natural father have not been terminated. The plain provisions of the adoption statute mandatorily require that he be made a party defendant in the action for adoption and that “[he] shall be brought before the court in the same manner as provided in other civil cases . . . .” KRS 199.480(2).

The legal act of adoption is purely statutory, and the statute authorizing the adoption must be strictly complied with. Carter v. Capshaw, 249 Ky. 483, 60 S.W.2d 959, 962 (1933). There must be such strict compliance with statutes pertaining to adoption that where a purported consent of the mother was not given under oath, the failure to follow the statutory requisite of a “sworn consent” rendered the adoption judgment invalid. Higgasen 'r. Henry, Ky., 313 S.W.2d 275 (1958).

“The right of adoption is in force in Kentucky only by virtue of statute. In this connection we said in Stanfield v. Willoughby, Ky., 286 S.W.2d 908, 53 A.L.R.2d 925, ‘In 1940, the Legislature enacted a law that was intended to be a comprehensive and all inclusive statute on the subject of adoption.

. Even a casual reading of this Act in its original form will convince one that the legislative intent in the passage of the Act was to place a minor when adopted on the same basis as a child born into the family . . . ’ This Court also adheres to the rule of strict compliance with statutory law pertaining to adoption.” Jouett v. Rhorer, Ky., 339 S.W.2d 865, 866 (1960). Later revisions of the Kentucky adoption law have reinforced the policy expressed by that analysis.

IV

Under the facts of the case before us, it plainly appears that a party defendant made indispensable by the adoption statute was neither named nor brought before the court by proper process in the adoption proceedings. The judgment of adoption is invalid.

It is suggested that if the adoption is again pursued the requirements of the adoption statute be strictly observed, and if a consent of the father be secured that such consent plainly show that it was made under oath.

The guardian ad litem has rendered invaluable, faithful service to promote the best interest of the child concerned. We thoroughly agree with the Court of Appeals that the guardian ad litem has acted in the highest tradition of the legal profession and is hereby highly commended.

The decision of the Court of Appeals is reversed and the cause is remanded to the Kenton Circuit Court with direction that the judgment of adoption be set aside and for any further proceedings in the Circuit Court to be consistent with this opinion.

All concur.