text:
    Herbert CROOK, Appellant, v. Bobby MALONE d/b/a Bobby Malone Insurance Agency, Appellee.
    No. 5148.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 31, 1978.
    Rehearing Denied Oct. 12, 1978.

      Karl L. Rubinstein, Carl E. Glaze, Dallas, Anthony G. Harris, Austin, Freytag, Marshall, Beneke, LaForce, Rubinstein & Stutz-man, Dallas, for appellant.
    W. C. Roberts, Jr. and William M. Walls, Roberts, Walls & Boydston, Dallas, for ap-pellee.
   BRADBURY, Justice.

Appellant, Herbert Crook, receiver of Liberty Universal Insurance Company, sued appellee, Bobby Malone d/b/a Bobby Malone Insurance Agency, seeking to recover premiums on insurance policies that Malone had allegedly written as agent for the company. Malone pleaded fraud as an affirmative defense. Based on jury findings favorable to Malone, judgment was entered denying Crook any recovery. He appeals and we affirm.

For several years prior to 1970, Malone had written a limited amount of business for Liberty and on May 1, 1970, entered into a new agency contract. Malone argues that this contract was induced by fraudulent representations made to him by a representative of Liberty. Although representing Liberty, he also represented some eighteen or twenty other companies. Premiums involved here were for policies written in July and part of August, 1970. The parties by stipulation agreed the amount in controversy was $7,515.52.

The 53rd District Court of Travis County on August 17, 1970, placed Liberty in temporary receivership and entered temporary restraining orders. These orders were made into a temporary injunction and the temporary receivership continued in effect by order effective 12:01 p. m., August 27, 1970. The receivership was made permanent by order of October 20, 1970. All policies were canceled by order of the 53rd Judicial District Court of Travis County August 27, 1970.

Article 21.28, Texas Insurance Code, provides for the liquidation, rehabilitation, reorganization or conservation of insurers. Section 2 provides in part:

“(a) Receiver Taking Charge. Whenever under the law of this State a court of competent jurisdiction finds that a receiver should take charge of the assets of an insurer domiciled in this State, the liquidator designated by the Board of Insurance Commissioners as hereinafter provided for shall be such receiver. The liquidator so appointed receiver shall forthwith take possession of the assets of such insurer and deal with the same in his own name as receiver or in the name of the insurer as the court may direct.
(b) Title in Receiver. The property and assets of such insurer shall be in the custody of the court as of the date of the commencement of such delinquency proceedings. The said receiver and his successors in office shall be vested by operation of law with the title to all of the property, contracts, and rights of action of such insurer, wherever located, as of the date of entry of the order directing possession to be taken. Such title of the receiver shall relate back to the date of the commencement of the delinquency proceedings unless the court shall otherwise provide. The filing or recording of such an order in any record office of the State shall impart the same notice as would be imparted by a deed, bill of sale, or other evidence of title duly filed or recorded by such insurer.
(c) Rights Fixed. The rights and liabilities of any such insurer and of its creditors, policyholders, members, officers, directors, stockholders, agents, and all other persons interested in its estate, shall, unless otherwise directed by the court, be fixed as of the date of the commencement of the delinquence proceedings, subject, however, to the provisions of Section 3 with respect to the rights of claimants holding contingent claims, and as otherwise expressly provided in this Article.”

This section of the statute was effective at 12:01 p. m., August 27, 1970, in the instant case.

Malone testified that he suspected that Liberty was not in good financial condition and commencing about August 1, 1970, he replaced the policies he had written for Liberty with policies in other companies and that such replacement had been completed by August 27, 1970. He testified that oh the policies written prior to July, 1970, that had not expired by August 27, 1970, out of his own pocket he paid the premiums for the replaced policies so that his customers would suffer no loss. Malone testified that as of August 27, 1970, all premiums collected for policies written to Liberty had been remitted to the company and'on unearned commissions he had credited these to the premiums charged to his customers as the policies were canceled with Liberty and rewritten with other companies. Malone argues that under the terms of the agency agreement with Liberty he had forty-five days after the end of the month in which the policy was written in which to remit the premiums and by agreement with Liberty he had sixty days from the date the policy was written to remit the premiums. During that time, he contends that he had the right to cancel any policies that he desired and place them in other companies.

Malone argues there were no assets in his hands to which the receiver was entitled. He considered himself a “middleman” or broker by virtue of the contract he had with Liberty. When he canceled the policies in question and rewrote them in other companies and collected the premiums, he was acting for his customers and not for Liberty.

Crook argues that Malone is liable for all premiums on policies that he had written for Liberty whether or not he had collected the premiums and was also liable for unearned commissions.

Crook contends that by'the provisions of Article 21.02, Texas Insurance Code, the relationship of principal and agent was established between Liberty and Malone, and a relationship of principal and agent is fiduciary in nature. Locke v. Thigpen, 353 S.W.2d 249 (Tex.Civ.App. — Houston 1961), rev’d, 363 S.W.2d 247 (Tex.1962). Crook argues that the Texas Insurance Code provides that the receiver is to take charge of all assets of the company and that uncollected premiums and unearned commissions were assets for which Malone was accountable. Crook insists that by the provisions of Article 21.28(3)(g)(4) Malone is not permitted an offset against his fiduciary obligation and that if he had a claim he should have filed it as provided for by Article 21.28, Sec. 3(a), Texas Insurance Code. Crook contends such procedure was Malone’s remedy and not a plea of fraud. Crook says that Malone waived rescission and cannot now claim offset as it is barred. Crook argues Malone is relegated to the position of a claimant and that he has waited too long to file his claim under Texas Insurance Code. Crook contends that to permit Malone to prevail by his defense of fraud would mean that he would gain a preference over the other creditors resulting in payment to him of 100% of his claim to the detriment of other creditors of the insolvent insurance company.

We do not deem it necessary to pass on these questions as in our opinion, the final result of this cause turns on Malone’s plea of fraud in the inducement of the contract.

This cause was tried in the lower court as a suit on contract. The defense was fraud in the inducement of that contract. The jury’s findings support that defense. On appeal, Crook cannot now take a position inconsistent with that taken at the trial. In Boatner v. Providence-Washington Ins. Co., 241 S.W. 136 (Tex.Com.App.1922), the court stated:

“The law forbids the assumption of an attitude on appeal inconsistent with that taken at the trial, and on appeal litigants are restricted to the theory upon which the cause was prosecuted or defended in the court below. This principle of law is well settled . . . ”

See: Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238 (1942); New Amsterdam Casualty Co. v. Scott, 54 S.W.2d 175 (Tex.Civ.App. — Eastland 1932, writ ref’d).

In the trial court, Crook did not attempt to apply the relevant provisions of the Texas Insurance Code as he does on this appeal. Such attempt on appeal comes too late. If there was fraud in the inception of the contract as found by the jury and such contract was void, Crook is not entitled to recover on it.

Crook argues that since Malone is attempting to use fraud as a defense in this case he is asserting an independent cause of action which is barred by the two-year statute of limitations. We overrule this point of error.

Malone specifically urges fraud as a defense to the receiver’s suit on the contract and specifically dismissed his cross-action based on fraud. Fraud as a defense is not barred by the statute of limitations. In Mason v. Peterson, 250 S.W. 142 (Tex.Com.App.1923), the court stated:

“• • • Fraud or mistake enters into and vitiates the contract to the extent of the resultant injury and is a defense to a suit on his obligation; and when the relief sought is only by way of defense to defeat in whole or in part the obligation for the purchase, it is not affected by statutes of limitation . . . ”

See: Reynolds-Southwestern Corporation v. Dresser Industries, Inc., 438 S.W.2d 135 (Tex.Civ.App — Houston (14th Dist.) 1969, writ ref’d n. r. e.); Hinds v. Biggs, 142 S.W.2d 902 (Tex.Civ.App. — Amarillo 1940, no writ).

Crook urges that reversible error was committed by failure of Malone to plead, prove and obtain jury findings that any misrepresentations which may have been made to him were made with the intent that he would rely on them or to induce reliance by him on such misrepresentation. We overrule this contention. Crook made no objection to the charge with reference to this failure. Where an independent ground of defense is submitted in a cluster of issues, if the jury answers the submitted issue such omitted issues without objection shall be deemed as found by the court in such manner as to support the judgment so long as there is evidence to support the finding on the omitted issues. Rule 279, T.R.C.P.

Crook argues no evidence points or no evidence of probative value as to Issues One through Six. Issues One, Two and Three are defensive issues pertaining to the fraud claim based on alleged representations as to the financial soundness of the company. Issues Four, Five and Six pertain to the representations as to the financial statement. Harry P. Smith, Jr. testified by deposition that Harold Simmons purchased Dealers National Insurance Company in 1967 and Dealers purchased Liberty Universal in June, 1968. Although Simmons was not involved in day-to-day operations of Dealers, he did make all the decisions regarding money and later became Chairman of the Board of Liberty. Malone testified that Simmons induced him to sign the agency contract of May 1, 1970, and Simmons signed it as Sales Representative of Liberty. Malone testified that the representations made to him by Simmons were that the financial condition of Liberty was good and better than what it was in the hands of the old owners; that he showed him a financial statement showing in excess of a million dollars in assets; that they were going to put more cash into the business and the company was financially solvent.

We have viewed the evidence in a most favorable light, considering only the evidence and inferences which support the findings and rejecting the evidence and inferences which are contrary to the findings and overrule Crook’s no evidence points as to such findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970). We have considered all the evidence and overrule Crook’s factually insufficient evidence challenge to such findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Crook complains that the testimony of Malone about representations made to him by Simmons was a result of leading questions and this is the only evidence supporting the issues. The court in Travelers Insurance Company v. Hurst, 358 S.W.2d 883 (Tex.Civ.App.—Texarkana 1962, writ ref’d n. r. e.) stated:

“. . . It is a well recognized principle that the allowance of leading questions is a matter resting largely within the discretion of the trial court and in Texas the case will not be reversed in the absence of a showing of abuse of discretion.”

We hold that the trial court did not abuse its discretion and the point is overruled.

Next, Crook argues that error was committed in the admission of a box of documents because a proper predicate had not been laid. He said that some of the documents may be admissible and some may not. He did not specify those he objected to being admitted. Crook by deposition identified the documents and had testified they were relevant. An inspection of this exhibit reveals that many of these documents were copies of financial statements of the Liberty Universal Insurance Company made to the Commissioner of Insurance of the State of Texas; others were minutes of directors’ meetings of Liberty; minutes of its executive committee; report of various audits; and, a multitude of documents pertaining to business affairs of Texas Consumer Finance Corporation. All of these had some relevancy regarding the question of insolvency of Liberty on the issue of representations made to Malone. The context in which this exhibit was offered reflects that its purpose was to evidence the insolvent condition of Liberty. Malone having done this, it was then incumbent upon Crook to identify any of the documents to which he specifically objected. Hayes v. Home Indemnity Company, 354 S.W.2d 600 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.). This point is overruled.

We have considered all of appellants’ points of error and they are overruled. Judgment of the trial court is affirmed.

      . “Special Issue No. 1: Do you find from a preponderance of the evidence that a representative of Liberty Universal represented to Defendant Malone on or before May 1, 1970, that the company was in a sound financial condition? Answer ‘We do’ or ‘We do not.’ Answer: We do
      If you have answered the foregoing special issue, ‘We do,’ you will answer the following special issue; otherwise, you will not answer it.
      Special Issue No. 2: Do you find from a preponderance of the evidence that such representation, if any you have found, was false? Answer ‘We do’ or ‘We do not.’ Answer: We do
      If you have answered the foregoing special issue ‘We do,’ you will answer the following special issue; otherwise, you will not answer it.
      Special Issue No. 3: Do you find from a preponderance of the evidence that such representation, if any you have found, was a material inducement to Defendant Malone and relied upon by him in executing the agency contract dated May 1, 1970? Answer ‘We do’ or ‘We do not.’ Answer: We do
      Special Issue No. 4: Do you find from a preponderance of the evidence that, on or before May 1, 1970, a representative of Liberty Universal presented to Defendant Malone a financial statement which showed the company had a million dollars in assets? Answer ‘We do’ or ‘We do not.’ Answer: We do
      If you have answered the foregoing special issue ‘We do’, you will answer the following special issue; otherwise, you will not answer it.
      Special Issue No. 5: Do you find from a preponderance of the evidence that such financial statement, if any you have found, was false? Answer ‘We do’ or ‘We do not.’ Answer: We do
      If you have answered the foregoing special issue ‘We do,’ you will answer the following special issue; otherwise, you will not answer it.
      Special Issue No. 6: Do you find from a preponderance of the evidence that such financial statement, if any you have found, was a material inducement to Defendant Malone and relied upon by him in executing the agency contract dated May 1, 1970? Answer ‘We do’ or ‘We do not.’ Answer: We do”

      . Art. 21.02 in part: “Any person who solicits insurance on behalf of any insurance company, or who shall receive or deliver a policy of insurance of any such company, . or collect, or transmit any premium of insurance, . . . shall be held to be the agent of the company for which the act is done, or the risk is taken, as far as relates to all the liabilities, duties, requirements and penalties set forth in this chapter . ."

      . Art. 21.28(3)(g)(4) in part: “No offsets shall be allowed in favor of any person, however, where ... (4) the obligation of such person is as a trustee or fiduciary.”

      . Art. 21.28, Sec. 3(a) in part: “Time for Filing. Where a liquidation, rehabilitation, or conservation order has been entered in a proceeding against an insurer under this Article, all persons who may have claims against such insurer shall present proof of the same to the receiver at a place specified by him within a period of time to be specified by the court, in no event, however, less than ninety (90) days nor more than one (1) year after the date of the entry of the order specifying such time. The receiver shall notify all persons who may have claims against such insurer as disclosed by its books and records, to present proof of the same to him within the time as fixed. The last day for the filing of proofs of claim shall be specified in the notice. Such notice shall be given in a manner determined by the court.”


source: Caselaw Access Project

author: GUITTARD, Chief Justice.

license: Public Domain

text:
    Anthony BOWDEN et al., Appellants, v. W. H. HUNT et al. Appellees.
    No. 22465.
    Court of Civil Appeals of Texas, Dallas.
    Aug. 31, 1978.
    Michael R. Burkett, Garrett & Burkett, Fort Worth, for appellants.
    Gary E. Smith, Shank, Irwin, Conant, Williamson & Grevelle, Dallas, for appel-lees.
   GUITTARD, Chief Justice.

Anthony Bowden and Taurus International, a partnership, have attempted to appeal from an order denying a motion to quash certain writs of garnishment. Our clerk has declined to file the appeal on the ground that the order is interlocutory and not appealable. The proposed appellants have filed a “motion to file appeal” with a supporting argument. We conclude that we have no jurisdiction, and, accordingly, we deny the motion.

Movants acknowledge that the order appealed from is interlocutory, and they seek to invoke the procedure for appeals of interlocutory orders prescribed by rule 385, Texas Rules of Civil Procedure. They recognize the well-established rule that interlocutory orders are not appealable unless specifically made so by statute, as held in Henderson v. Shell Oil Company, 143 Tex. 142, 182 S.W.2d 994 (1944). They argue, however, that denial of the right to appeal from an order concerning pre-judgment seizure of their funds is a denial of due process in view of the strict requirements imposed on pre-judgment remedies in such cases as Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975).

None of these authorities supports movants’ contention that due process requires the right to an interlocutory appeal in this situation. That question, however, is not material to our jurisdiction. Whether or not an appeal is required for due process, none is provided by the constitution or statutes of this state. We cannot assume jurisdiction that we do not have for the purpose of remedying a constitutional defect, if there is such a defect, in the statutes concerning garnishment.

Movants argue further that a prejudgment writ of garnishment is appealable because it is in effect a “backhanded temporary injunction” in that the garnishee is required by judicial fiat to freeze funds. Even so, we hold that the order in question is not a temporary injunction within article 4662 of the Texas Revised Civil Statutes (Vernon 1952) on which our jurisdiction in temporary injunction appeals depends.

Under this article, appellate courts have been reluctant to construe interlocutory orders concerning control or disposition of property pending litigation as temporary injunctions for the purpose of appeal. See Dickson v. Dickson, 516 S.W.2d 28, 30 (Tex.Civ.App. — Austin 1974, no writ); Bloomfield Royalty Corp. v. Carco Investments, Inc., 435 S.W.2d 178 (Tex.Civ.App. — Houston [14th Dist.] 1968, no writ); Alpha Petroleum Co. v. Dunn, 60 S.W.2d 469 (Tex.Civ.App. — Galveston 1933 writ dism’d). This court also has recently refused to consider such an order as an appealable temporary injunction. McQuade v. E. D. Systems Corp., 570 S.W.2d 33 (Tex.Civ.App. — Dallas, 1978). These decisions show that article 4662 cannot be extended so far as to provide an interlocutory appeal from every order of a mandatory or prohibitory nature issued by a court before trial. Garnishment is a statutory remedy separate from the statutes concerning injunctions, and is governed by different procedures. Consequently, we hold that a writ of garnishment issued before judgment is not a temporary injunction from which an appeal will lie under article 4662.

Motion to file appeal denied.

      . But see Whatley v. King, 151 Tex. 220, 249 S.W.2d 57 (1952); Pilot Engineering Company v. Robinson, 470 S.W.2d 311 (Tex.Civ.App.— Waco 1971, no writ).


author: KLINGEMAN, Justice.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Rosemary D. TULL, Appellee.
    No. 15963.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 6, 1978.
    Rehearing Denied Oct. 18, 1978.
    Reese L. Harrison, Jr., John H. Tate, II, Oppenheimer, Rosenberg, Kelleher & Wheatley, San Antonio, for appellant.
    James G. Murry, San Antonio, for appel-lee.
   OPINION

KLINGEMAN, Justice.

This is a suit by Rosemary D. Tull, appel-lee herein, against United Services Automobile Association, appellant, for alleged damages arising out of the termination of her contract of employment. For convenience, appellee will be sometimes hereinafter referred to as “Tull” and appellant as “USAA.” Trial was to a jury who in answer to special issues submitted found: (a) USAA did not have good cause to discharge Tull; (b) Tull was entitled to receive $8,365.66 as loss of earnings; (c) Tull was entitled to recover a Christmas bonus of $433.39; (d) Tull was entitled to recover $25,000 for mental pain and anguish in the past; (e) the conduct of USAA in discharging Tull was an act of malice; (f) Tull was entitled to recover exemplary damages in the amount of $25,000. USAA timely filed motions for instructed verdict, judgment non obstante veredicto, and to disregard certain jury findings, all of which were overruled by the court. The trial court entered judgment that Tull recover from USAA the sum of $59,058.99.

Appellant brings forth 33 points of error. Many of these points of error assert that appellant is entitled to a judgment as a matter of law and seeks a reversal and rendition. Other points of error seek a reversal and remand.

We will first consider appellant’s points of error which seek a reversal and rendition. It is appellant’s primary contention that the employment relationship between USAA and Tull was an oral contract for an indefinite term containing no contractual limitations, and was terminable at the will of either party, with or without cause. USAA asserts that the trial court erred as a matter of law in not granting its motion for instructed verdict or its motion for a judgment non obstante veredicto; that there is no evidence to support the submission of and the jury’s answer to the material issues upon which the verdict is predicated; and that although under the type of employment here involved it is immaterial whether Tull’s termination was for good cause, as a matter of law there was good cause for her termination.

The evidence shows that USAA employed Tull under an oral employment contract without any definite term being established, which was its practice with all employees. Over a period of years, Tull was promoted from time to time through various grade levels. Tull admitted that from the day she was hired her employment agreement was a “decent day’s work for a decent day’s pay” and that from her standpoint she could have terminated her employment and left her employment at USAA at any time.

As an employee, Tull was instructed and trained in her job duties and the rules and regulations of her employer, USAA. Included in this training and instruction were the categories of membership in USAA’s insurance for which employees were eligible for many types of insurance offered by USAA. As an employee, Tull was eligible for USAA insurance coverage and had availed herself of these benefits by insuring her automobiles, her house, personal property, life, and other coverage.

By May of 1975, Tull had progressed to a management position and was authorized to issue insurance binders obligating USAA for insurance coverage for fire and extended coverage on dwellings up to a limit of $100,000 without seeking approval from higher authority. All employees were instructed that they were never to handle or write their own insurance and employees were, instructed to contact the technical assistants in the appropriate branch who would handle their insurance needs.

In April of 1975, Tull as agent and attorney-in-fact for her father, Benedict J. Dan-ysch, went to Falls City, Texas, and purchased for her father a small house. A warranty deed was given by the seller to Benedict J. Danysch and filed for record in Karnes County, Texas. After her return to USAA, Tull prepared and executed a “binder” in her name and USAA number and under her signature, insuring her father’s house against fire and extended coverage and other perils for $5,000. The “binder” issued by Tull obligated USAA in the event of loss. Based on the binder, an insurance policy was issued.

During the summer and early fall of 1975, an underwriting risk review of all of Tull’s insurance was initiated because of her high claims frequency and claims paid. Based on this risk review, a recommendation was made not to renew Tull’s automobile coverage. Tull was notified by letter of the cancellation. Because of the automobile claims, a parallel risk review on other coverage was also undertaken and a recommendation was made that Tull’s multiple lines coverage (like her house, personal property, and so on), not be renewed. During the risk review, the binder issued by employee Tull on her father’s house was discovered by another USAA employee. A background investigation was made by her supervisor, Robert G. Goldsberry, which disclosed that the property which had been insured by employee Tull under her membership number was not in her name. Supervisor Goldsberry determined that immediate discharge procedures should be followed and employee Tull was informed of the violation complained of and informed that she was being immediately dismissed. Tull then initiated this case in the trial court.

Our Supreme Court in East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99 (1888), held:

It is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite, or determinable by either party, that either may put an end to it at will, and so without cause.

The rule is set forth in 62 A.L.R.3d 271 (1975), as follows:

Despite its sometimes harsh operation and the obvious opportunities for abuse it affords an unscrupulous employer, few legal principles would seem to be better settled than the broad generality that an employment for an indefinite term is regarded as an employment at will which may be terminated at any time by either party for any reason or for no reason at all. See, for example, the following cases: * * * Tex — Bischel [Bichsel] v. Heard (1959, Tex.Civ.App.) 328 S.W.2d 462; Scruggs v. George A. Hormel & Co. (1971, Tex.Civ.App.) 464 S.W.2d 730, error ref. n. r. e.; NHA Inc. v. Jones (1973, Tex.Civ.App.) 500 S.W.2d 940, error ref. n. r. e. * * *
—Annotation—Employee’s Arbitrary Dismissal as Breach of Employment Contract Terminable at Will.

In Scruggs v. George A. Hormel, 464 S.W.2d 730 (Tex.Civ.App. — Dallas, writ ref’d, n. r. e.), the court said:

The summary judgment evidence before us is conclusive that the contract of employment between Scruggs and Hormel was verbal and for no definite period of time. In the absence of contractual limitations the employer Hormel had the authority to discharge Scruggs at will and with or without cause, [citing 38 Tex. Jur.2d, Master and Servant, § 12; Kelley v. Southern Pacific Co., 429 S.W.2d 583 (Tex.Civ.App., El Paso 1968, no writ); San Antonio Fire Fighters’ Local Union No. 84 v. Bell, 223 S.W. 506 (Tex.Civ.App., San Antonio 1920, writ ref’d); and Robertson v. Panhandle & Santa Fe Ry. Co., 77 S.W.2d 1078 (Tex.Civ.App., Austin 1934, writ dism’d, w. o. j.)] (Scruggs at p. 731)

In NHA, Inc. v. Jones, supra, 500 S.W.2d 940 (Tex.Civ.App. — Fort Worth, writ ref’d, n. r. e.), the court held:

The settled law is that where an employee sues his employer for damages for the breach by the employer of an employment contract that is for an indefinite term of service, as are each of the contracts involved here, the loss of wages that would have been earned in the indefinite future is not a recoverable item of damages. This is so because such a contract can be legally terminated at will by either party.

For a good discussion of this type of employment relationship, see also Cactus Feeders, Inc. v. Wittler, 509 S.W.2d 934 (Tex.Civ.App. — Amarillo 1974, no writ).

The record establishes that Tull’s employment contract with USAA was oral and for an unspecified, indefinite term. The undisputed evidence shows that: (a) Tull’s attorney stipulated that an oral contract was involved here; (b) Marie Kelleher, a vice president of Personnel at USAA, testified that people are not hired under a written contract with USAA for a definite number of years, and that under an oral contract there is no time period; (c) Robert Golds-berry, vice president of Multiple Lines, at USAA, stated that his employment is for an indefinite time and that he may be fired at any time; (d) Tull stated that she had no written employment contract with USAA and that she felt she could terminate her employment at any time.

Under the undisputed testimony and the applicable authorities hereinbefore cited, the trial court erred in failing to grant appellant’s motion for instructed verdict or its motion non obstante veredicto. Under the record herein and the applicable law, Tull cannot as a matter of law receive damages for her termination by USAA. This case must be reversed and rendered.

The judgment of the trial court is reversed and judgment here rendered that Tull take nothing against USAA.

      . In Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, the Court said: “The right of an employe to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employe.”


author: ROBERTSON, Justice.

text:
    TEPHGUARD CORP. and Jack F. Harmon, Appellants, v. GREAT NORTH AMERICAN INDUSTRIES, INC., and Products On The Move, Inc., Appellees.
    No. 19682.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 6, 1978.

      Jay S. Fichtner, Toby L. Gerber, Berman, Fichtner & Mitchell, Dallas, for appellants.
    Marshal W. Dooley, Herndon, Girand & Dooley, Dallas, for appellees.
   ROBERTSON, Justice.

This is an appeal from a temporary injunction, enjoining appellants, Tephguard Corporation and Jack F. Harmon, from using the tradename “Tephguard” or other names similarly spelled or pronounced on any product not manufactured by appellees, Great North American Industries, Inc. and Products On The Move, Inc., dr to use such name on any advertising media for the sale of any product not manufactured by appel-lees. Intertec Marketing Company (Teph-guard’s predecessor in interest) entered into an agreement with Great North American Industries assigning to Intertec the use of the tradename “Tephguard.” At the same time, Intertec contracted with Products On The Move to purchase an oil additive that was being sold under the name “Teph-guard.” Tephguard later began selling a new oil additive not produced by Products On The Move under the Tephguard name. Appellees obtained a temporary injunction preventing Tephguard from using the name “Tephguard” on any product not manufactured by them. We hold that appellees have failed to show that any immediate and irreparable harm to the value of the trade-name “Tephguard” is threatened by the actions of the appellants. Therefore, we dissolve the injunction.

To establish a right to the issuance of a temporary injunction, the applicant must show immediate and irreparable injury, the absence of an adequate legal remedy, and a probable right to recovery. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953); Charter Medical Corp. v. Miller, 554 S.W.2d 220 (Tex.Civ.App. — Dallas 1977, writ ref’d n.r.e.); Town Plaza Fabrics, Inc. v. Monumental Properties of Texas, Inc., 544 S.W.2d 775 (Tex.Civ.App. — Dallas, 1976, no writ). Appellees’ assertion that irreparable harm to the tradename “Tephguard” would result from the continued use of the name by appellant in the sale of a product not produced by appellees, is not supported by the evidence. No showing was made that the product being produced by Tephguard was inferior to that produced by appellees or that Tephguard’s product has damaged appellees’ tradename. Thus, appellees have failed to demonstrate that the value of the tradename “Tephguard” has been irreparably injured by appellants’ use of it on their product. Absent such a showing, the circumstances do not indicate that denial of a temporary injunction will probably cause immediate and irreparable harm. In view of this holding, it is not necessary for us to address appellants’ other points or appel-lees’ cross-point. Consequently, we decline to make any rulings on questions that the trial court should determine at trial on the merits.

Finally, as we have observed in Charter Medical Corp. v. Miller, 547 S.W.2d 77, 78 (Tex.Civ.App. — Dallas 1977, no writ) and Crawford Energy, Inc. v. Texas Industries, Inc., 541 S.W.2d 463, 468 (Tex.Civ. App. — Dallas 1976, no writ), this appeal, like many other temporary injunction appeals, appears to be entirely unnecessary. We recognize that in this case appellant was prompted to appeal by a temporary injunction that seriously interfered with its business. Appellees, however, could have obviated the appeal by cooperating with appellant’s discovery efforts and pressing for a trial on the merits on the first date set by the trial court, which was earlier than the date of oral argument here. We see no justification for an appeal concerning the preservation of the status quo pending a trial that could have been completed in less time and with less effort than required for the appeal.

Accordingly, the judgment of the trial court is reversed and the temporary injunction dissolved.


author: J. CURTISS BROWN, Chief Justice.

text:
    J. L. E., a minor, Appellant, v. The STATE of Texas, Appellee.
    No. 1865.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 13, 1978.
    Wesley Hall, College Station, for appellant.
    Sarah Ryan, Bryan, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment determining that the appellant was a child who had engaged in delinquent conduct and committing him to the care, custody, and control of the Texas Youth Council.

J. L. E. (appellant) and four other youths broke into the Sanitation Department of the City of Bryan after hours on June 29, 1977 and operated some of the Department’s motor vehicles. On October 25, 1977, the County Court at Law of Brazos County, sitting as a juvenile court, determined that the appellant was a child who had engaged in delinquent conduct. A disposition hearing was held on December 20, 1977. At that hearing, the court found that the appellant was in need of rehabilitation and that his best interest would be served by committing him to the care, custody, and control of the Texas Youth Council for the following reasons:

On or about the 29th day of June, 1977, in Brazos County, Texas, said child did then and there knowingly and intentionally damage and destroy motor vehicles without the effective consent of Jack Cornish, the owner, said damage and destruction amounting to a pecuniary loss exceeding $5.00. Participation in this offense resulted in damages in excess of $3,000 to property of the. City of Bryan.

In his limited appeal from that order of commitment, the appellant has assigned three points of error.

The appellant argues, in his first point, that the order of commitment is invalid because it did not comply with the requirements of section 54.04(f) of the Texas Family Code. That section of the Code provides that if a juvenile court finds that a child is in need of rehabilitation and makes a disposition of him, “[t]he court shall state specifically in the order its reasons for the disposition and shall furnish a copy of the order to the child.” Tex.Family Code Ann. § 54.-04(f) (1975) (emphasis added). The appellant asserts, in support of his first point, that the trial court did not state specifically in the disposition order its reasons for committing him to the care, custody, and control of the Texas Youth Council. We agree with the appellant that section 54.04(f) requires more than a statement of the details of the delinquent conduct that he engaged in.

The purpose of requiring such a recitation of reasons in a disposition order was explained by Justice Guittard in Matter of T. R. W., 533 S.W.2d 139 (Tex.Civ.App.— Dallas 1976, no writ):

Specification of the reasons for the disposition in an order and furnishing a copy to the child, as subdivision (f) requires, provide assurance that the child and his family will be advised of the reasons for commitment and will be in a position to challenge those reasons on appeal. The appellate court may then review the reasons recited and determine whether they are supported by the evidence and whether they are sufficient to justify the particular disposition ordered. Without a specific statement of the reasons for disposition, a reviewing court is left to rely on assumptions in judging the trial court’s action.

533 S.W.2d at 141. See also, Matter of N. S. D., 555 S.W.2d 807. (Tex.Civ.App. — El Paso 1977, no writ history); and, A. Y. v. State, 554 S.W.2d 805 (Tex.Civ.App. — San Antonio 1977, no writ history).

In this case, the recitation contained in the disposition order does not explain why, of the five youths who caused the property damage to the Sanitation Department’s motor vehicles, only the appellant was committed to the care, custody, and control of the Texas Youth Council. The appellant’s first point of error is sustained. Specificity in the order would have allowed appellate review of the trial court’s disposition; however, the lack of specificity here precludes such review. For this reason, we are unable to consider appellant’s second and third points, and we express no opinion thereon.

The appellant’s first point of error having been sustained, the order of disposition is hereby reversed and remanded. The order adjudicating the appellant a delinquent is not disturbed.

The disposition order is reversed and remanded.

      . The italicized sentence was handwritten.


text:
    Jan Iona RUST et al., Appellants, v. Thomas E. CHILDRE, Appellee.
    No. 15975.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 13, 1978.
    Rehearing Denied Oct. 11, 1978.

      Levey & Goldstein, San Antonio, for appellants.
    William H. Price, San Antonio, for appel-lee.
   OPINION

KLINGEMAN, Justice.

This is an appeal from a judgment of the County Court of Bexar County, Texas, In Probate, setting aside and holding for naught a previous order of such court probating a will of Mary Elizabeth Brennan Childre, dated December 6, 1976. Appellee Thomas E. Childre contested said will both on the grounds of lack of testamentary capacity and undue influence, but, on trial, only the issue of undue influence was submitted. Trial was to a jury, who in answer to' the only special issue submitted, found that Mary Elizabeth Childre at the time she executed the will dated December 6, 1976, was acting under the undue influence of proponents Jan Iona Childre Rust or Pauline Brennan Burris. Appellants filed a motion for judgment non obstante veredicto which was overruled by the court and judgment was entered by the trial court setting aside and holding for naught the purported will of Mary Elizabeth Brennan Childre, dated December 6, 1976. Appellants will sometimes be hereinafter referred to as proponents and appellee will sometimes hereinafter be referred to as contestant.

By two points of error, appellants contend (1) there is no evidence of any undue influence being exerted upon the testatrix in the execution of such will by appellants, and (2) the jury’s answer to the special issue on undue influence was against the great weight and preponderance of the evidence.

The applicable rule in these types of cases is set forth in Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963), as follows:

Thus, before a testament may be set aside on the grounds of undue influence the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of such influence so as to subvert or overpower the mind of the testator at the time of the execution of the testament; and (3) the execution of a testament which the maker thereof would not have executed but for such influence. See: Stewart v. Miller, Tex.Civ.App. (1925) 271 S.W. 311, wr. refused; Olds v. Traylor, Tex.Civ.App. (1944) 180 S.W.2d 511, wr. refused.
The burden of proving undue influence is upon the party contesting its execution. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.

See also Estate of Woods, 542 S.W.2d 845 (Tex.1976); Pearce v. Cross, 414 S.W.2d 457 (Tex.1966); Boyer v. Pool, 154 Tex. 586, 280 S.W.2d 564 (1955).

We have carefully reviewed the entire record. We find no evidence, circumstantial or otherwise, .of the existence and operation of any undue influence on testatrix, Mary Elizabeth Brennan Childre at the time of the execution of the will. The most that can be said of the evidence favorable to the contestant in this case is that circumstantially it supports one element of undue influence — the existence of an opportunity on the part of appellants to exert an influence on Mrs. Childre. This alone is not sufficient.

The testatrix, Mary Elizabeth Brennan Childre, was the wife of Thomas E. Childre, appellee here. Appellant Pauline Burris is a sister of testatrix, and appellant Jan Iona Rust is a daughter of appellee by a previous marriage and a stepdaughter of testatrix and was raised in the home of the Childres. The will here involved is dated December 6, 1976, witnessed by three witnesses and contains a self-proving affidavit or certificate. Jan Iona Rust was named Independent Executrix in such will, and the will made devises as follows: (a) to her husband, Thomas E. Childre, all the proceeds of her checking account and a life estate in any real estate owned by her at her death, with remainder to Jan Iona Rust; (b) to her brother and sisters her undivided interest in a mineral interest in a tract of land in Live Oak County, Texas; (c) all the rest and residue of her property to Jan Iona Rust.

Dates of some significance, some of which are approximate, may be summarized as follows:

(a) April 20, 1944 — appellee and testatrix were married. At such time, Mr. Childre had three children: two boys approximately 12 and 15 years old, and a girl, Jan Iona, who was very young;
(b) November 12, 1955 — Mary Elizabeth Childre executed a will;
(c) October 1969 — Mary Elizabeth Chil-dre filed suit for divorce against Thomas E. Childre;
(d) September-November 1976 — Donald Gene Childre, a son of Thomas E. Childre by the former marriage, came to live with the Childres while he was recuperating from an illness;
(e) November 30, 1976-December 6, 1976 — Mary Elizabeth Childre was hospitalized at the Nix Hospital, San Antonio, Texas;
(f) December 6, 1976 — Mary Elizabeth Childre’s second will was executed upon release from the hospital;
(g) December 6, 1976-January 6, 1977 —Mary Elizabeth Childre was at the home of Jan Iona Rust at Canyon Lake;
(h) January 6, 1977 — Mary Elizabeth Childre went to Houston to be with her brother and sisters;
(i) January 1977 — suit for divorce was filed by Mary Elizabeth Childre against her husband, Thomas E. Childre;
(j) February 8, 1977 — Mary Elizabeth Childre died at St. Luke’s Hospital in Houston;
(k) February 9, 1977 — the body of Mary Elizabeth Childre was returned to San Antonio upon request of Thomas E. Childre over objections of her brother and sisters; and
(l) February 11,1977 — funeral services for Mrs. Childre were held in San Antonio.

Testatrix had no natural children of her own. It is clear from the record that the testatrix and Jan Iona Rust had a very close relationship. The brother of Thomas E. Childre testified that when Thomas Chil-dre and testatrix were married that Jan was a very young girl, and the boys were older; that the boys were soon able to get out on their own and that Mrs. Childre was very devoted to Jan. Such brother also testified that Mrs. Childre and Donald Gene, the younger son, had numerous problems and that on occasions Thomas Childre and Donald Gene had some problems; that the older son has not been heard from for a number of years; that over a period of years the relationship between testatrix and her stepdaughter was as close a relationship as one could have between a mother and daughter. He also testified that the relationship between Mr. and Mrs. Childre was good but that he was aware of the fact that they had been separated for a period of time in 1969, and that Mrs. Childre had filed a suit for divorce.

Numerous other witnesses testified to the close relationship between Jan Iona Rust and Mrs. Childre and there was also testimony that the relationship between Mr. and Mrs. Childre was good. There is testimony of difficulties between Mrs. Childre and Donald Gene, and also some testimony as to difficulties between Mr. Childre and Donald Gene, including testimony that on one occasion they had a fight.

There is considerable testimony as to Mrs. Childre’s physical and mental condition. It is clear that she was old and had been sick for a number of years. Although her testamentary capacity is not an issue here, the testimony heavily preponderates that she was of sound mind.

Dr. Wagner, Mrs. Childre’s doctor, testified that Mrs. Childre had rheumatic heart disease which he classified as a “bad heart disease”; that her death could have come at any time and he would not have been surprised. The official cause of her death was acute myocardial infarction. In 1976, she had a Pacemaker installed at the Nix Hospital. He testified that she had been taking a variety of medications over a period of years. He stated that in the 4½ years he treated Mrs. Childre he had never noticed any mental deficiencies or any mental impairment; that even with her medical problems she could not be easily led.

The will was prepared by Mr. Kellogg L. O’Connor, an attorney in a law firm in San Antonio. He testified that he first met Mrs. Childre through a telephone call which he understood was placed by her sister, Mrs. Burris; that Mrs. Burris told him that her sister wanted to make a will; and that Mrs. Childre was then put on the phone and told him she was in the Nix Hospital and wanted to make a will; that he talked to her several times over a period of days with regard to the making of such will; that he then prepared the will as requested and arranged to meet Mrs. Childre at her room at the hospital; that accompanied by his secretary he went to the hospital and discussed the contents of such will and its effect with Mrs. Childre; that there was no one in the room except Mrs. Childre and his secretary; that Mrs. Childre approved the will which was in conformity with what she had previously told him over the phone.

Mr. O’Connor testified that some difficulty was encountered with regard to the execution of the will, due in part to the hospital policy which forbade hospital employees serving as witnesses and also some reluctance on Mrs. Childre’s part to having the will executed in a hospital; that he then suggested that the execution of the will be postponed until she was out of the hospital, to which suggestion Mrs. Childre agreed. He said that when Mrs. Childre came to the law office, he was out of the office and another attorney in the firm supervised the execution of the will.

He testified that at the time he prepared the will the testatrix was mentally and emotionally sound and had the testamentary capacity to make a will, understood the nature and extent of her property and the natural objects of her bounty. He testified that he got his information as to the provisions of the will from Mrs. Childre alone and no one else.

The will was executed before Mr. Steven Mark Gross, another attorney in the same firm. He testified in detail as to the execution of the will; that he questioned Mrs. Childre as to her intent to make such will and as to whether she wanted to sign the instrument; that such will was executed with all the formalities and solemnities required by law; that she gave every evidence of being of sound mind at the time of the execution of such will and of voluntarily signing such will.

All of the witnesses to the will and the notary who took the self-proving certificate testified. The gist of their testimony is that the testatrix read and was explained the will and approved it; that she was of sound mind; that no one exerted any influence on her at such time in connection with such will; that no one forced her to sign the will; and that such will was executed with the proper formalities. It is undisputed that both Mrs. Rust and her daughter, Suzanne Bangs, were present at the time of the execution of the will and that the testatrix, Mrs. Rust and Mrs. Bangs went directly from the hospital to the lawyers’ office for the execution of the will. Mrs. Bangs testified that while leaving the hospital, Mr. Childre came up and started a ruckus and that Mrs. Childre then said “Jan, take me to the lawyer’s office because I do not want anything to happen.” There is no testimony indicating that they took any part in the discussion surrounding the execution of the will.

There is other testimony, none of which is particularly material as to the matter of undue influence. There is considerable testimony about the two divorce proceedings; there is testimony as to problems between testatrix and Donald Gene Childre, and some testimony that Mrs. Childre was afraid that Donald Gene would manage to control and take over any property which his father was given, which she didn’t want to happen. There was testimony that Mrs. Childre went to Jan Rust’s home because she was afraid to return to her home because of Donald Gene, and other testimony that her doctor advised that she be taken to Jan’s house.

It is the law in Texas that a will cannot be set aside on proof of facts which at most do no more than show an opportunity to exercise influence. Burgess v. Sylvester (Tex.Civ.App. — Amarillo) 177 S.W.2d 271, aff’d, 143 Tex. 25, 182 S.W.2d 358 (1944). The exertion of influence that was undue cannot be inferred alone from opportunity, but there must be some testimony, direct or circumstantial, to show that the influence was not only present but that it was in fact exerted with respect to the making of the testament itself. Estate of Woods, supra.

In Boyer v. Pool, supra, in which there was evidence of contestant’s opportunity to exert influence on the testator, the court said:

Contestants must go forward and prove in some fashion that the will as written resulted from the daughters [proponents] substituting their mind and will for that of the testator. Here the will and the circumstances raise suspicion but it does not supply proof of the vital facts of undue influence — the substitution of a plan of testamentary disposition by another as the will of the testator.

Here, there is no evidence that either of the proponents suggested what should be written into the will; that they in any way forced Mrs. Childre to prepare the will involved or to sign the will; and no evidence to show that any of the proponents exercised any influence whatsoever on Mrs. Childre with regard to the execution of the will.

As hereinbefore stated, we find no evidence that at the time of the execution of the will in question either the proponents or anyone else used his or her influence so as to subvert or overpower the mind of the testatrix or so as to substitute the plan of testamentary disposition of another as the will of the testatrix.

The judgment of the trial court is reversed and judgment here rendered probating the will of December 6,1976, as the last will and testament of Mary Elizabeth Chil-dre.


author: CIRE, Justice.

text:
    MONSANTO COMPANY, Appellant, v. A. A. PRUITT, Appellee.
    No. 1842.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1978.

      Frederick J. Bradford, McLeod, Alexander, Powel & Apffel, Galveston, for appellant.
    Preston Shirley, John- S. McEldowney, Mills, Shirley, McMicken & Eckel, Galveston, for appellee.
   CIRE, Justice.

This is a suit on a written indemnity agreement brought by Monsanto, the in-demnitee, against A. A. Pruitt, the indemnitor. The trial court denied indemnity to Monsanto.

In 1970 Monsanto was preparing to dismantle Unit 20 of their Texas City plant. A. A. Pruitt, the outside contractor, was to provide pipefitters and boilermakers to perform some of the work under a written contract with Monsanto.

On July 29, 1970, Arnold E. Wingard, a Pruitt employee, was injured when he inhaled cyanide gas at the Monsanto plant. He filed suit against Monsanto for damages for the injuries sustained, and subsequently, after a jury trial, secured judgment against Monsanto. That judgment became final and was paid by Monsanto before this action came to trial.

In the suit by Wingard against Monsanto the jury found that Monsanto was negligent in:

(1) providing a defective safety valve that permitted the seepage of liquid with hydrogen cyanide properties, and
(2) failing to inspect its pipe and safety valves.

The contract between Monsanto and Pruitt provided that:

A. A. Pruitt will continue to carry the broad-form coverage on employees working in the plant. By your agreement to this clause, A. A. Pruitt and your insurance carrier agree that your insurance will pay off first in the event one of your employees is injured while working in our plant regardless of the cause.
* * * * *
B. Hold Harmless Clause: Notwithstanding any provision of this contract to the contrary, Contractor agrees to save Owner harmless and indemnify it against every claim or claims of any character whatsoever, including, but not limited to, any claim for loss of or damage to property, and for compensation, damage, injury to, or death of, any person whomsoever, in any way growing or arising out of any act or omission by Contractor or any one of its agents, servants, or employees, or arising in any other way in the performance of this contract, even if arising or caused partially or completely by the fault or negligence of Owner.

Monsanto in this suit seeks to recover, under the indemnity provisions of the contract, the amount paid Wingard in the prior suit and the costs of defending the suit.

Pruitt, in his answer to the suit filed by Monsanto, set out the affirmative defenses of estoppel by judgment and res judicata, claiming that the acts or omissions found by the jury in the prior case were in no way acts or omissions of A. A. Pruitt and did not arise any other way in the performance of the contract, and that as a matter of law Monsanto Company was bound in this suit for indemnity by the findings of the jury in the prior suit for damages.

Pruitt, prior to the trial of this cause, sought by motion in limine to prohibit Monsanto Company from mentioning directly or indirectly the fact that A. A. Pruitt was covered by liability insurance and from reading or otherwise disclosing to the jury particular terms and provisions of the contract. These terms required A. A. Pruitt to carry insurance coverage on their employees and required Pruitt’s insurance company to pay off first in the event of injury to one of Pruitt’s employees while working in the Monsanto plant. The motion further sought to prohibit Monsanto from inquiry into or offering into evidence any further acts or omissions of any party which may have caused the injuries to Arnold Win-gard. The court granted Pruitt’s motion, ruling that the acts or omissions as to the cause of the accident as found in the prior suit by Wingard against Monsanto were conclusive, and that the only issue to be tried in the indemnity suit was whether the acts or omissions found by the jury in the earlier case would support indemnity under the contract.

After this motion was granted the parties proceeded to trial without a jury, and except for allowing the introduction of the entire contract between Monsanto and Pruitt, the court, consistent with its ruling on the motion in limine, excluded all evidence having to do with any other cause of the accident except those found by the jury in the prior suit. At the conclusion of the trial the court found that the claim or claims of Mr. Wingard did not arise in any way in the performance of the contract, and judgment was entered that Monsanto take nothing in its indemnity suit against A. A. Pruitt.

In its first point of error, appellant complains of the exclusion by the motion in limine of the terms of the insurance agreement covering A. A. Pruitt. The entire contract between Monsanto and Pruitt, however, including the portions concerning insurance, was admitted into evidence; therefore any error of the trial court in its ruling on the motion in limine was harmless.

By its second point, appellant asserts error in the trial court’s ruling which excluded from evidence any causes of the injuries to Arnold Wingard beyond those found by the jury in the prior case. Monsanto introduced evidence by way of bill of exception that Pruitt’s employees, while not responsible for the valve found by the jury to be defective, did remove a valve downstream from the defective valve. The removal of this valve released the hydrogen cyanide in the pipe and allowed it to flow into a ditch where it came in contact with hot water. Cyanide gas was thus produced, and this caused the injuries to Wingard.

Appellee’s position is that Wingard’s claim was based on a defective valve which was not handled by Pruitt’s employees and was not a part of the dismantling work which Pruitt had contracted to carry out; that this was the valve found by the jury in the prior case to be the proximate cause of the accident; and that appellant is precluded in this suit from offering proof of any other cause. We do not agree. The language of the indemnity provision is not that restrictive. The contract provides for indemnity for “every claim ... in any way growing or arising out of any act or omission by Contractor ... or arising in any other way in the performance of this contract . . . .” As noted above, but for the removal of the valve by Pruitt’s employees, the hydrogen cyanide would have remained confined inside the pipe and would not have mixed with hot water. There would have been no gas, no injury, and no claim. The testimony offered by appellant should have been admitted and should have been considered by the trial court in deciding whether the injuries occurred in connection with the performance of the contract by Pruitt’s employees. It is this question, immaterial in the prior suit for damages by Wingard, which determines whether the indemnity provisions in the contract are operative. Siebrand v. Eyerly Aircraft Co., 196 F.Supp. 936 (D.Or.1961); Richmond v. Amoco Production Co., 390 F.Supp. 673 (E.D.Tex.1975); Ref-Chem Corp. v. El Paso Products Co., 506 S.W.2d 701 (Tex.Civ.App. — El Paso, 1974, writ ref’d n.r.e.).

While the findings of negligence by the jury in the prior suit were binding on Monsanto in the present suit for indemnity, the question in this suit differs from that in the first. The question presented here is whether the injuries arose out of the performance of the Monsanto/Pruitt contract. As the excluded evidencé bears directly on this question, this case must be remanded for further consideration by the trial court.

Reversed and remanded.


author: SPURLOCK, Justice.

text:
    James G. STEGALL, Jr., Appellant, v. Marian T. STEGALL and Scott K. Stegall, Appellees.
    No. 18003.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 21, 1978.
    Rehearing Denied Oct. 19, 1978.

      Wayne A. Melton, Dallas, for appellant.
    Addison Wilson, III, and Michael Preston, Dallas, for appellees.
   OPINION

SPURLOCK, Justice.

James Stegall, Jr. and Marian Stegall made an agreement incident to their divorce. In part, James Stegall agreed to provide financial assistance for the college education of the couple’s sons. Marian Ste-gall and adult son, Scott, sued Stegall for tuition and fees incurred by Scott because Stegall failed to provide any assistance. The trial court rendered judgment for Scott in the sum of $2,058.85 and Mrs. Stegall was awarded $1,000.00 attorneys’ fees. Stegall appealed. Mrs. Stegall, by her cross point of error, asserts that the trial court erred in rendering judgment for $1,000.00 attorneys’ fees rather than $2,000.00.

We affirm.

Two provisions of the agreement are at issue. They are as follows:

“Husband will provide financial assistance to so many of the sons of the parties as may elect to pursue their college level education in amounts not to exceed the charges for such education then in effect at Abilene Christian College in Abilene, Texas, less other sources of income available to such sons from earnings, savings, scholarships, work grants or otherwise, so long as they are satisfactorily pursuing a full curriculum, such payments to be made at the discretion of Husband either to said sons or direct to the educational institution they are attending.” Agreement Incident To Divorce, Section VIII— C.
“In the event a party hereto defaults in performing his or her obligations under this Agreement, requiring the other party to seek judicial enforcement or relief, the defaulting party shall pay the reasonable attorney’s fees and costs incurred.” Agreement Incident To Divorce, Section VIII-I.

The trial court found that Scott was satisfactorily pursuing a full curriculum at Abilene Christian College. The court also found that Stegall failed to provide necessary financial assistance to Scott and that the sum of $2,058.85 was necessarily incurred and reasonable in amount. Mrs. Stegall pled and prayed for $2,000.00 attorneys’ fees. The trial court found that $1,000.00 was reasonable. The court also found her to be a proper party to the suit.

Stegall claims that the trial court erred in granting judgment for Mrs. Stegall. He claims she had no justiciable interest nor right to sue under the agreement. We do not agree.

In the agreement Stegall promised Mrs. Stegall he would provide financial assistance for the college education of their sons. This benefited Scott. Thus the agreement was a third party beneficiary contract. It is well settled that the prom-isee of a third party beneficiary contract can sue the promissor to enforce the agreement. Crane County v. Bates, 126 Tex. 470, 90 S.W.2d 243. 13 Tex.Jur.2d Contracts § 358 (1960). Therefore, Mrs. Stegall had a justiciable interest and the right to sue.

Stegall complains that the trial court erred in awarding Mrs. Stegall $1,000.00 attorneys’ fees. He claims she had no right to attorneys’ fees because she had no affirmative recovery of damages or other relief. He argues that recovery of actual damages or other relief is required to support an award of attorneys’ fees.

We conclude Mrs. Stegall obtained relief sufficient to support award of attorneys’ fees. She sued to enforce the agreement and obtained enforcement thereof because Scott obtained a judgment for the expenses. Thus Mrs. Stegall obtained relief. The attorneys’ fee provision of the agreement authorized recovery of reasonable fees where a party had to seek judicial enforcement of the agreement. Clearly, Mrs. Stegall properly sought and received enforcement of the agreement. She is entitled to reasonable attorney’s fees.

Mrs. Stegall complains the trial court erred in limiting the award of attorneys’ fees to $1,000.00. She argues that the court could not properly find that an amount less than the $2,000.00 pled and proven was reasonable because Stegall failed to raise the issue of reasonableness. We do not agree.

The attorneys’ fee provision authorized recovery of reasonable attorneys’ fees. Mrs. Stegall pled and prayed for recovery under the provision.

An award of attorneys’ fees is a question for the trier of fact. International Security Life Insurance Co. v. Spray, 468 S.W.2d 347 (Tex.1971). The trial court found that $1,000.00 was reasonable. An award of attorneys’ fees involves the sound discretion of the trial judge which is not to be reviewed on appeal absent an abuse of discretion. Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ.App. — Corpus Christi 1973, writ dism’d). Mrs. Stegall claims that the court abused its discretion, the testimony was that $2,000.00 was reasonable was un-controverted. We find no abuse.

The elements to be considered by the trier of fact in its determination of a reasonable amount of attorneys’ fees in-elude the nature and complexity of the case, the amount in controversy, the amount of time and effort required, and expertise of counsel. McFadden v. Bresler Malls, Inc., 526 S.W.2d 258 (Tex.Civ.App. — Austin 1975, no writ). Mrs. Stegall has not claimed that the trial court failed to or improperly considered these elements in its finding. McFadden also holds that the opinion testimony of an attorney on the reasonableness of a fee is not conclusive. Therefore, Mrs. Stegall failed to show any abuse in discretion.

Stegall complains that the trial court erred in rendering judgment for Scott because Scott failed to perform specific conditions precedent to recovery under the agreement. He argues that since the agreement required him to provide assistance less other sources of income available to Scott, that a condition precedent exists that Scott must have or attempt to have income. The only condition precedent we find in the agreement is that Scott satisfactorily pursue a full college curriculum. Scott has met this condition.

Stegall’s construction of the provision imposes a duty on Scott to work and to at least apply for scholarships and grants. The agreement, however, imposes no such duty. The sources of income available to Scott are relevant only to a determination of the amount of assistance required.

Stegall claims the trial court erred in rendering judgment for $2,058.85 because this amount was the total expense incurred. He urges that the judgment requires him to completely subsidize Scott’s education when the agreement requires him only to provide assistance. We do not agree.

If Stegall were to completely subsidize Scott’s education, he would have to pay all of Scott’s living expenses. Expenses for room, board, clothing, and transportation are a major part of college expenses. The judgment rendered covers only tuition and fees. This amount equals Scott’s total expense less his living expenses. Scott paid his living expenses. Thus the judgment does not force Stegall to do anymore than is required by the agreement.

We find no error in the trial court’s judgment. It is believed that by what we have written all points of error presented in complaint of the judgment in the case are discussed. However, and in any event, all points of error have been severally considered and are overruled.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    Richard H. MOIEL, M. D., Appellant, v. Joann SANDLIN, et al., Appellees.
    No. 1328.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 21, 1978.

      Michael A. Andrews, Brown, Stephens & Andrews, Houston, for appellant.
    O. P. Jones, II, Victoria, for appellees.
   OPINION

NYE, Chief Justice.

This is a suit by a doctor against an attorney and his client. Originally, Jo Ann Sandlin and her husband, George B. Sand-lin, filed a medical malpractice suit against Dr. Richard H. Moiel. The suit was later voluntarily dismissed. Thereafter, Dr. Moiel filed this present suit against Mr. and Mrs. Sandlin and their attorney, Edward Ganem, for filing the medical malpractice suit against him without just cause. The trial court granted the attorney and his clients’ motion for summary judgment predicated on the sole ground that the doctor’s pleadings “fails to state a cause of action” against them. The doctor perfected his appeal to this Court.

On July 14, 1972, Dr. Moiel performed lower back surgery on Mrs. Sandlin. In September 1973, Mrs. Sandlin again entered the hospital to have additional surgery performed by another doctor. In December of 1975, the Sandlins through their attorney. Edward Ganem, filed a medical malpractice suit against Dr. Moiel alleging that the doctor had negligently performed surgery on Mrs. Sandlin in 1972. The Sandlins alleged that they had not discovered the negligence of Dr. Moiel until a period of time shortly prior to the filing of the suit in 1975. Dr. Moiel answered and alleged that the Sandlins’ cause of action was barred by the statute of limitations because their suit had been filed more than two years after the alleged negligent surgery had been performed. Subsequently, the Sandlins filed a motion for a voluntary nonsuit which was granted by the trial court.

In March of 1977, Dr. Moiel filed this present suit against the Sandlins and their attorney, Edward Ganem. The doctor alleged that the original medical malpractice suit had been filed without just cause and that the suit was based upon: 1) malicious prosecution; 2) barratry; 3) abuse of process; and 4) negligence. Dr. Moiel prayed for: 1) $250,000 damages for personal humiliation, mental anguish, distress, and injury to his professional reputation; 2) $8,000 damages for the inconvenience and neglect to his professional practice occasioned by the medical malpractice suit; 3) $50,000 damages for the present and future increases in his professional liability insurance premiums; and 4) punitive damages of $250,000.

The Sandlins and their attorney filed a motion for summary judgment predicated on the ground that Dr. Moiel’s petition failed to state a cause of action. Dr. Moiel filed a reply in opposition to the motion for summary judgment which was supported by an affidavit of Dr. Moiel’s professional liability insurance agent. After a hearing, the trial court granted the summary judgment.

In considering Dr. Moiel’s points of error, we will keep in mind the familiar rules of law governing our review of summary judgments under Rule 166-A, T.R. C.P. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952), and Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). Without reciting all of such familiar rules, we must point out that where the movant’s motion challenges, in effect, the sufficiency of the non-movant’s pleadings to raise a genuine issue of material fact which would constitute a cause of action, the operation of such a motion for summary judgment is closely analogous to a special exception challenging the sufficiency of the non-mov-ant’s pleadings as a matter of law. In such a case, the petition to which the motion is directed must be construed most liberally in favor of the pleader. Such a petition is entitled to the benefit of every reasonable inference which can properly be drawn in its favor. It must appear that the facts alleged by the non-movant established the absence of a right of action or of an insuperable barrier to a right of recovery. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). See Smart v. Carlton, 557 S.W.2d 553, 555 (Tex.Civ.App. — Beaumont 1977, writ ref’d n. r. e.); Garza v. Perez, 443 S.W.2d 855 (Tex.Civ.App. — Corpus Christi 1969, no writ).

Dr. Moiel brings forward three points of error generally contending that the trial court’s granting of the motion for summary judgment was erroneous because he had pled valid causes of action on each of the various theories relied upon. In addition, Dr. Moiel generally argues that the defendant attorney had instituted the medical malpractice suit maliciously and without probable cause when he knew such suit was barred by the statute of limitations. Dr. Moiel’s pleadings state that the medical malpractice suit was not filed against him until December 1975, which was more than two and one-half years after the original surgery was performed. He contends that he specifically pled that the Sandlins’ cause of action was barred by the two-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), and that shortly thereafter, the Sandlins, in response to such plea, filed a motion for a voluntary nonsuit.

Although the Sandlins’ original medical malpractice petition and Dr. Moiel’s subsequent motion for summary judgment are not before this Court, the Sandlins argue that they had alleged in their petition that Dr. Moiel’s negligence had not been discovered until a period of time shortly prior to the filing of the original medical malpractice suit. The cause of action for negligence in such a case would not have been barred by limitations under the discovery doctrine announced in Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). Appellee attorney contends that the information concerning Mrs. Sandlin’s cause of action was based, at least in part, on statements made by Mr. Sandlin to him. Apparently, Dr. Moiel’s attorney thereafter took Mrs. Sandlin’s deposition, and she testified under oath to the effect that she had actually discovered the alleged negligence of Dr. Moiel in September 1973 while she was hospitalized for the second operation. Thus, it was apparent that Mrs. Sandlin discovered the alleged negligent conduct more than two years before the time the medical malpractice suit was filed. This testimony, according to the appellee attorney, prompted Sandlins’ attorney to then dismiss the medical malpractice suit.

As a general rule, the plea of limitation is an affirmative defense which must be pled specially in the trial court or it is waived. See e. g., McClenney v. McClenney, 3 Tex. 192 (Tex.1848); McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App. — Corpus Christi 1975, no writ); Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.). The statutes of limitations do not affect the substantive rights of the parties but merely affect the remedy when its enforcement is sought. City of Dallas v. Etheridge, 152 Tex. 9, 253 S.W.2d 640 (1953); Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879 (1947). The defense of limitations is, of course, waivable, and the mere filing of a suit after the limitations period has expired, without more, does not warrant the conclusion that the suit was filed maliciously or without probable cause. An attorney may generally rely on good faith upon the facts his client relates. Unless lack of probable cause for a claim is obvious from the facts disclosed by the client or otherwise brought to the attorney’s attention, he may assume the facts so disclosed are substantially correct. See e. g., Milliner v. Elmer Fox and Co., 529 P.2d 806 (Utah Sup.1974); Maechtlen v. Clapp, 121 Kan. 777, 250 P. 303 (1926); Peck v. Chouteau, 91 Mo. 138, 3 S.W. 577 (1887).

Turning now to point of error one, Dr. Moiel contends that his pleadings allege a viable cause of action based on malicious prosecution. As such, our first question concerning this type of cause of action is whether or not the doctor pled damages conforming to the legal standards required for malicious prosecution action. Dr. Moiel recognizes that in malicious prosecution actions, the plaintiff must allege and proffer evidence that he has suffered some interference by reason of the filing of the original lawsuit, with his person or property. See Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920); Salado College v. Davis, 47 Tex. 131 (Tex.1877). Dr. Moiel contends that his pleadings meet this requirement because he alleged that his professional liability insurance premium rates were substantially increased as a result of the filing of the original medical malpractice lawsuit and that this is an interference with his property. We do not agree.

Texas and other jurisdictions adhering to the special injury requirement in malicious prosecution actions have required actual interference with the defendant’s person (such as an arrest or detention) or property (such as an attachment, an appointment of a receiver, a writ of replevin or an injunction). See e. g., Johnson v. King & Davidson, 64 Tex. 226 (Tex.Sup. 1885); Louis v. Blalock, 543 S.W.2d 715 (Tex.Civ.App. — Amarillo 1976, writ ref’d n. r. e.); Green v. Meadows, 527 S.W.2d 496, 498 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e.); Pendleton v. Burkhalter, 432 S.W.2d 724 (Tex.Civ.App.— Houston [1st Dist.] 1968, writ ref’d n. r. e.); Daniels v. Conrad, 331 S.W.2d 411 (Tex.Civ. App. — Dallas 1959, writ ref’d n. r. e.); Lindsay v. Woods, 27 S.W.2d 263 (Tex.Civ.App. —Amarillo 1930, no writ); King v. D. Sullivan & Co., 92 S.W. 51 (Tex.Civ.App.1906, no writ); North Point Const. Co. v. Sagner, 185 Md. 200, 44 A.2d 441 (1945); Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905); Manufacturers & Jobbers Finance Corp. v. Lane, 221 N.C. 189, 19 S.E.2d 849, 853 (1942). If the defendant has suffered an interference with his person or property, he may then recover the actual damages resulting therefrom including injuries to his reputation and business interests. See e. g., Green v. Meadows, 527 S.W.2d 496, 499 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e.). An increase in insurance rates does not constitute an actual interference with Dr. Moiel’s property as required in Texas. The alleged increase in insurance premiums in this case is more analogous to a prepayment for attorney’s fees and expenses incurred in defending medical malpractice cases which are an incident of defending any civil suit. The affidavit in support of Dr. Moiel’s motions for summary judgment stated that the increase in Dr. Moiel’s professional liability insurance rates was, in part, a reflection of the costs the insurance company incurred for defending groundless medical malpractice suits in general. This rate increase was not necessarily attributable solely to the malpractice suit filed against Dr. Moiel by the Sandlins.

Dr. Moiel also contends (point of error three) that his pleadings stated a valid cause of action for the offense of barratry. We disagree. Section 38.12(a)(2) of the Texas Penal Code (1974) provides that a person is guilty of the offense of barratry if, “with intent to obtain a benefit for himself or to harm another he institutes any suit or claim that he knows is false.” This portion of the barratry statute provides a criminal sanction to supplement the tort remedy available for malicious prosecution and disciplinary procedures available under the Texas Code of Professional Responsibility. See Practice Commentary, Tex.Penal Code § 38.12 (1974). The offense of barra-try as defined in the penal code is a public remedy and not a private one.

All of the other questions raised and arguments presented in this appeal are the same as we considered in Martin v. Trevino (Tex.Civ.App. — Corpus Christi 1978, no writ). We hold that the Trevino opinion controls the disposition of all of the other points and arguments raised in this appeal. Dr. Moiel’s points of error are overruled.

The judgment of the trial court is AFFIRMED.

      . This affidavit stated, in relevant part, as follows:
      “In 1975 Dr. Richard Moiel paid a premium for insurance in the Aetna Life & Casualty Insurance Company in the amount of $11,950 for 5,200,000/5,600,000 limits for medical professional liability insurance. In 1976 Dr. Moiel paid a premium of $23,922 for the same limits for coverage with the same carrier. Currently, the premium for the same limits with the same carrier is $31,125. Since the insurance rates are determined by losses and claims handling expenses, including attorney’s fees, rates havé increased dramatically because of higher charges incurred. Thus, it is a fact that legal expenses for defense of groundless lawsuits are included in the rate calculation by insurance companies and these costs are reflected in higher premiums charged to insurance purchasers such as Dr. Moiel.”


text:
    Richard S. COLLEY v. Stephen Marcus CARLETON et al.
    No. 1324.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 21, 1978.

      Sam A. Westergren, Jr., Corpus Christi, for appellant.
    N. F. Jackson, Jr., Rockport, for appel-lees.
   OPINION

NYE, Chief Justice.

This is a condemnation proceeding. The County of Aransas, Texas, condemned an avigation easement over a portion of the land and improvements owned by Stephen Carleton, Phillip Carleton, Marcus Carleton and Priscilla Carleton. This land was subject to a long-term lease owned by Richard S. Colley. The avigation easement was necessitated by the extension of a runway on the county owned airport in the Rockport-Fulton area. The Special Commissioners found that the measure of damage to the land was $25,504.45. They awarded the entire amount to the landowners and denied any recovery to the lessee. The lessee timely filed his objection to the commissioners’ award in the district court. The case was then tried before a jury which also found for the landowners. The lessee perfected his appeal to this Court.

Prior to the beginning of the district court trial, the parties admitted that: the property in question was subject to condemnation; that the entire fee, including the interests of the landowners and the lessee, had been damaged in the amount of $25,-504.45 by the taking; and that the only issue to be tried in the district court was that of apportionment, if any, of the damages between the landowners and the lessee. The County was excused from further participation in the trial. After the receipt of all of the evidence, the case was submitted to the jury upon two special issues. The jury found: 1) that the landowners were entitled to 100% of the $25,504.45 damages caused by the taking of the avigation easement; and 2) that the lessee was entitled to 0% of the $25,504.45 damages. The lessee, having unsuccessfully moved the trial court for a directed verdict, for a judgment non obstante veredicto, and for a new trial, has perfected his appeal to this Court. He attacks the jury’s findings here on appeal on legal and factual insufficiency points of error.

The record indicates that on January 2, 1952, the appellant lessee executed a fifty-year lease encompassing the surface estate of approximately 33 acres in Aransas County and the improvements thereon which were then owned by Leon and Helen Carle-ton, the appellees’ predecessors in title. The lease obligated the lessee to pay all ad valorem taxes and annual rent of $4,200.00 for the full term of the lease. The lessee was also obligated to erect three additional buildings, each with a minimum value of $3,500.00, within the first three years of the lease term. At the end of the lease, the land and the title to all improvements was to revert and remain in the landowners. At the time the avigation easement was taken, five residences and one storage building were located on the leased premises. Over twenty-six years of the 50-year lease remained at the time of the taking.

Throughout all of the condemnation proceedings, the appellant, as a long-term lessee, has contended that he is entitled to share in the condemnation damages to the extent that his leasehold interest has been damaged. In considering appellant’s specific contentions on appeal, we shall keep in mind the general principles concerning condemnation suits of this kind.

Section 3 of article 3265, Tex.Rev. Civ.Stat.Ann. (1968), provides as follows:

“When only a portion of a tract or parcel of a person’s real estate is condemned, the commissioners shall estimate the injuries sustained and the benefits received thereby by the owner; whether the remaining portion is increased or diminished in value by reason of such condemnation, and the extent of such increase or diminution and shall assess the damages accordingly.”

The term “owner”, as the term is used in this section, includes a lessee for years as well as any other person who has an interest in the property. Elliott v. Joseph, 163 Tex. 71, 351 S.W.2d 879, 884 (1961); Houston North Shore Railway Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 793 (1936). The rules applicable to the condemnation of a fee title apply equally to the condemnation of a part of a leasehold interest. Elliott v. Joseph, 163 Tex. 71, 351 S.W.2d 879, 884 (1961); Brazos River Conservation & Reclamation Dist. v. Adkisson, 173 S.W.2d 294 (Tex.Civ.App. — Eastland 1943, writ ref’d). Both the lessor and the lessee are entitled to share in the award according to their respective interests. It is fundamental that compensation is due the lessor for damages to his reversionary interest, if any, and to the lessee for damage to his leasehold, if any. Aronoff v. City of Dallas, 316 S.W.2d 302 (Tex.Civ.App. — Texarkana 1958, writ ref’d n. r. e.); Brazos River Conservation & Reclamation Dist. v. Adkisson, 173 S.W.2d 294 (Tex.Civ.App. — Eastland 1943, writ ref’d); Fort Worth & D.S.P. Ry. Co. v. Judd, 4 S.W.2d 1032 (Tex.Civ.App. — Amarillo 1928, writ dism’d); 4 Nichols, Law of Eminent Domain, § 12.42[1] pp. 12-481— 12-482 (1971).

In general, an appeal in a condemnation suit to the district court is a special trial de novo proceeding which determines only the issue of the condemnor’s right to condemn and the amount of damages. Elliott v. Joseph, 163 Tex. 71, 351 S.W.2d 879 (1961). Where, prior to trial, the landowners admit the property in question is subject to condemnation and has been condemned, the only issue in controversy is the amount of damages. In such a case, the landowner has the burden of proof on this issue. State v. Walker, 441 S.W.2d 168, 170 (Tex.Sup.1969); State v. Jackson, 388 S.W.2d 924 (Tex.Sup.1965).

In this case, the Special Commissioners found that the damages to the entire tract, including the leasehold interest and the reversionary interest, because of the easement taken, to be $25,504.45. Prior to trial, the parties stipulated not only that the tract in question was subject to condemnation, but also that the damages as found by the Special Commissioner should stand. In view of these stipulations, the only issue remaining to be decided in the district court trial was the proper apportionment of this award between the lessee and the landowners. In this connection, the lessee has the burden to show the amount of the damages attributable to his leasehold interest, if any. Special instructions should be submitted by the trial court to describe the lessee’s interest. The balance of the damages, if any, would belong to the rever-sionary interest of the landowners. See and compare Aronoff v. City of Dallas, 316 S.W.2d 302 (Tex.Civ.App. — Texarkana 1958, writ ref’d n. r. e.); Brazos River Conservation & Reclamation Dist. v. Adkisson, 173 S.W.2d 294 (Tex.Civ.App. — Eastland 1943, writ ref’d); Fort Worth & D.S.P. Ry. Co. v. Judd, 4 S.W.2d 1032 (Tex.Civ.App. — Amarillo 1928, writ dism’d); 4 Nichols, Law of Eminent Domain, § 12.42[1] (1971); Rayburn, Texas Law of Condemnation §§ 194-200 (1960 & Supp.). Once the lessee has introduced evidence of damages to the leasehold estate the landowners had the burden to go forward with evidence to refute the lessee’s prima facie proof. Cf. State v. Walker, 441 S.W.2d 168 (Tex.Sup.1969); State v. Jackson, 388 S.W.2d 924 (Tex.Sup.1965); Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954); Clark v. Hills, 67 Tex. 141, 2 S.W. 356 (1886); State v. Beever Farms, Inc., 549 S.W.2d 223 (Tex.Civ.App.— San Antonio 1977, writ ref’d n. r. e.).

At this trial, the lessee produced testimony from a land appraisal expert concerning what amount of the stipulated damages should be apportioned to the leasehold estate. The landowners chose not to introduce any evidence concerning the apportionment of the damages. In response to two special issues, the jury found, in effect, that the owners should receive the entire damage award to the exclusion of the lessee. The appellant lessee attacks these jury’s findings in four points of error on legal and factual sufficiency grounds.

Mr. Bob Crow, a land appraisal expert, testified on behalf of the lessee. Appellees do not contend on appeal that Crow was not qualified to testify as an expert witness. Crow testified that the nature of the easement, including the resulting vibrations, noise and risk of accidents, affected the lessee’s use of the leasehold estate and, in effect, diminished its value. A portion of the avigation easement actually covered three of the five buildings on the leased premises. The lease was introduced into evidence and Mr. Crow identified the property described in the lease as that subject to the avigation easement. The lease expressly provided, and there is testimony to the effect, that the appellant lessee had the exclusive right of possession of the land including the improvements thereon and the air space above, until the year 2002.

In arriving at his valuation of the leasehold interest in comparison with the rever-sionary interest, Crow utilized the actual earnings method and the highest and best use method. Concerning the actual earnings method, Crow compared both the negative and positive aspects of the benefits of the lease as related to the landlord and the tenant. In examining the gross and net income, and considering a factor for recapture of the cost of the improvements on the land, Crow testified that the lessee had a vested value of 87.3%, as opposed to 12.7% for the lessor. He further testified that the income of the landlord was set at a fixed rate under the terms of the lease and would remain virtually unaffected for the remainder of the lease term regardless of the easement while, on the other hand, the lessee’s income would fluctuate depending upon the desirability of renting a residence subject to the sound vibrations and unsightliness incident to the avigation easement.

In comparing the leasehold interest and the reversionary interest according to the highest and best use, Crow testified that the value related to the leasehold itself would be $482,994.14 while the residual value in the fee estate would be $58,666.02. Projecting the leasehold estate to be used as a trailer park (considered as the highest and best use) during the remainder of the lease term, Crow testified that in his opinion the leasehold estate was worth 90% while the reversionary interest, 10%.

We have carefully reviewed the entire record in this case. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The parties stipulated that the avi-gation easement resulted in damage to the entire tract in the amount of $25,504.45. The appellant lessee has exclusive right to possession of the tract of land including the improvements from the date of the taking until the year of 2002. The possessory interest of the landlord will not commence until the lease terminates in the year 2002. Regardless of any adverse effect the avigation easement may have upon the property, the record shows conclusively that the landowners cannot be damaged by the avigation easement until at least the year 2002. The expert witness offered testimony to the effect that the highest valuation that could be placed on the damages to the reversionary interest would be 12.7% under the actual earning valuation and 10% under the highest and best use valuation. We hold that the evidence is insufficient to support the jury’s answer that the landowners were entitled to 100% of the damages. Actually, there was no one who testified to such effect. Conversely, the evidence shows that the leasehold estate did suffer damage as a result of the avigation easement. Therefore, the evidence establishes conclusively the opposite of the jury’s failure to find that the lessee suffered some damages. The jury’s finding of zero damages is ■against the great weight and preponderance of all of the evidence.

The amount of damages is always a question of fact for the jury and unless the finding is so excessive or so grossly inadequate as to indicate operation of an improper influence in determination of the amount, it will not be disturbed on appeal. Coastal Ind. Water Authority v. Trinity Portland Cem. Div., 523 S.W.2d 462 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e.). While the trier of fact is at liberty to believe or not believe the testimony of any witness in part while rejecting it in another part, the jury cannot properly find the converse of a witness’ testimony when there is no independent evidence to support such finding. Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817 (1957); US-Life Title Ins. Co. of Dallas v. Rossco, Inc., 550 S.W.2d 419 (Tex.Civ.App. — Eastland 1977, writ ref’d n. r. e.); Briscoe v. Laminack Tire Service, Inc., 546 S.W.2d 695 (Tex.Civ.App. — Texarkana 1977, writ ref’d n. r. e.).

The judgment of the trial court is accordingly REVERSED and cause REMANDED for trial.

      . The airspace above land for the navigation of aircraft.


text:
    James G. CASEY, M.D., Appellant, v. UNITED STATES LEASING CORP., Appellee.
    No. 19603.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 26, 1978.

      John W. Weeks, Robinson, Hanna, Burke, Moore & Holloway, Inc., Abilene, for appellant.
    Tom D. Matthews, Matthews, Matthews & Madrid, Dallas, for appellee.
   ROBERTSON, Justice.

Appellee, United States Leasing Corp., sued appellant, James G. Casey, for rent due under a contract to lease copying equipment. A motion for summary judgment was filed pursuant to Rule 166-A Tex.R. Civ.P., as amended, by appellee and judgment was rendered in its favor. Since appellant has failed to support his affirmative defense of payment by proper summary-judgment proof, we affirm.

In his affidavit opposing the motion for summary judgment, appellant states: “I do not feel that all offsets, credits and allowances have been allowed.” He contends that this is sufficient to raise a fact issue as to whether any offsets, credits and payments were credited to the contract, and thus, the trial court erred in granting a summary judgment. Appellee’s affidavit recited that all offsets, credits and payments had been credited. The allegation in appellant’s affidavit is merely conclusory and does not raise a material issue of fact. Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App. — Houston 1963, writ ref’d n. r. e.); Slavin v. Citizens State Bank of Frost, 567 S.W.2d 928 (Tex.Civ.App. — Dallas 1978, no writ). A plea of payment is an affirmative defense and appellant’s affidavit must present evidence on all of the elements necessary to such defense to avoid summary judgment. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974); “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1973). Since his affidavit does not specify the amount of credit that should have been allowed, appellant has failed to present proof on every element of his affirmative defense. Slavin v. Citizens State Bank of Frost, supra; Harrison v. Leasing Associates, Inc., 454 S.W.2d 808 (Tex.Civ.App. — Houston [14th Dist.] 1970, no writ).

On appeal, appellant asserts for the first time that he is entitled to a prepayment credit of $44.76, computed under section three of the default clause of the contract sued upon. This section allows a prepayment credit equal to the product of the number of months remaining on the lease (30), multiplied by the total rent not yet due ($746.10), multiplied by two tenths of one percent (.2%), for a total of $44.76, and according to appellant, appellee’s own proof demonstrates this. Attached to the appel-lee’s petition and affidavit supporting the motion for summary judgment are statements of account with the following itemized list of charges: original amount contracted for, $1,492.20, less payments received to date, $766.11; plus the reversion-ary value of the property as stipulated in the lease, $149.22; plus accrued late charges, $12.50; less amount realized from the sale of equipment, $275.63. The total amount due is $612.18. These statements on their face are mathematically correct. To challenge them, appellant must enumerate in the trial court the specific amount of credit or offset, and the reason therefor, in his answer or affidavit opposing the motion for summary judgment. Tex.R.Civ.P. 166-A(c). Under this amended rule, issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. Consequently, no reversible error is shown.

Accordingly, we affirm.