author: MOORE, Justice.

text:
    N. L. BARRETT, Appellant, v. Maggie R. FERRELL, Appellee.
    No. 996.
    Court of Civil Appeals of Texas, Tyler.
    April 14, 1977.
    Rehearing Denied May 12, 1977.

      L. F. Burke, Longview, for appellant.
    Kenneth L. Ross, Sharp, Ward & Ross, Longview, for appellee.
   MOORE, Justice.

Appellee, Maggie R. Ferrell, brought suit against appellant, N. L. Barrett, for damages for breach of a contract. As grounds for a cause of action appellee alleged that on March 7,1975, she entered into an agreement with appellant whereby he assigned her an undivided Vith of the Vsth oil, gas and mineral interest which he owned in 84.1 acres of land situated in Upshur County, Texas, for and in consideration of the sum of $20,000.00. Simultaneously therewith, appellant and appellee entered into a typewritten letter agreement, signed by both parties, agreeing that the $20,000.00 consideration which appellee paid for the interest in the leasehold would include her cost of drilling and completing the first well on the leasehold premises. She further alleged that although appellant drilled the well, he thereafter plugged and abandoned it as a dry hole, thereby breaching his contract to complete the well and damaging her in the amount of $12,500.00. In the alternative, appellee alleged that since the well was not completed as a producing well and appellant did not install the completion equipment which he would have been required to install had it been a producing well, appellant was unjustly enriched in the amount of $12,500.00 and therefore she was entitled to restitution of such amount. By way of a trial amendment, appellee alleged that as a result of her agreement with appellant a mining partnership was created of which she prayed for an accounting and for a recovery of the sum of $12,500.00. Appellant answered with a general denial and specially denied, under oath, the existence of a mining partnership. After a trial before the court sitting without a jury, judgment was rendered in favor of the appellee for the sum of $12,500.00. From such judgment appellant Barrett has perfected this appeal.

We reverse and render.

At the request of appellant, the trial court filed extensive findings of fact and conclusions of law, the substancé of which is as follows: (1) On March 7, 1975, Maggie R. Ferrell and N. L. Barrett executed the following letter agreement:

“Dear Mrs. Ferrell:
“I am this day assigning to you an undivided ¼⅛ of the Vsths oil, gas and mineral leasehold covering 84.1 acres situated in Upshur County, Texas.
“The consideration you have paid me for said ¼⅛ interest will include your cost of drilling and completing the first well on said leasehold.
“As to all future drilling and operating expenses, you will pay your proportionate ¼⅛ part..
Yours very truly,
/s/ N. L. Barrett N. L. Barrett
ACCEPTED:
/s/ Maggie R. Ferrell
Mrs. Maggie R. Ferrell”

(2) Mrs. Ferrell paid Barrett the sum of $20,000.00; (3) the well which was drilled under the letter agreement was a dry hole; (4) Barrett plugged and abandoned the well; (5) Barrett did not “complete” the well as that term is used in the industry; (6) the parties intended by the term “cost of drilling and completing the first well”, as used in the letter agreement, to include all casing, tubing, rods, well connections, tanks, separators and pumping unit and other completion equipment; (7) such completion equipment was never installed; (8) the reasonable cost of installing the completion equipment would have been $80,000.00; (9) the cost of drilling and plugging the well as a dry hole was $29,324.00; (10) Mrs. Ferrell’s ¼⅛ interest and payment of $20,-000.00 was based on ¼⅛ of the cost of drilling and the cost of completing the well; (11) the sum of $7,331.00 represents Mrs. Ferrell’s ½⅛ cost of drilling and plugging the well; (12) the sum of $12,500.00 represents the amount of money advanced by Mrs. Ferrell for completion cost of the well; (13) N. L. Barrett has not expended the $12,500.00 paid him by Mrs. Ferrell to furnish completion equipment and services on the well; (14) Mrs. Ferrell and Barrett were joint owners of the lease, and (15) joint operators of the lease, and (16) agreed to share the profits from the lease, and (17) had a community of interest in the lease, and (18) also had a mutual agency in representing the mining partnership existing between them; (19) there was no agreement limiting the rights of Mrs. Ferrell in regard to the lease; (20) Barrett has never returned any money to Mrs. Ferrell; and (21) she received no consideration from him other than the ¼⅛ share of the $29,324.00 cost spent on the well; and (22) by virtue of Barrett’s failure to “complete” the well as called for in the letter agreement, he was unjustly enriched by the sum of $12,500.00. The trial court concluded as a matter of law that (1) the letter agreement was a binding contract between the parties; (2) there was a breach of the letter agreement, and as a result Mrs. Ferrell suffered damages in the amount of $12,500.00 representing that sum of money for which Barrett delivered no consideration; (3) the parties entered into a mining partnership; and (4) upon an accounting of the mining partnership, Mrs. Ferrell was entitled to $12,500.00 which sum represents the advanced but unused portion of the original consideration for the ¼⅛ cost of drilling and completing the well.

The evidence shows that prior to the time Barrett conveyed the Vith interest in the lease to Mrs. Ferrell, he had purchased the 84.1 acre lease from the Gillespie Estate on a standard oil and gas mineral lease, paying a bonus therefor and agreeing, at his option, to drill a well or to pay yearly rentals, or to suffer a forfeiture of the lease. Upon learning that Barrett was going to drill the well, Mrs. Ferrell contacted him and requested him to sell her an interest in the lease. Barrett agreed to assign her an undivided Vith interest out of his Vsths working interest for the sum of $20,000.00. It was stipulated by the parties at the time of trial that neither the oil and gas lease, the assignment to Mrs. Ferrell, nor the letter agreement in question required Barrett to drill a well to any specified depth, or any specified horizon, or to guarantee the production of oil or gas. It is undisputed that Barrett drilled the well 120 feet deeper than any other well in the area had been drilled and below the depth where oil and gas were usually found in the area. The evidence shows that Barrett abandoned the well as a dry hole upon the advice of an expert who advised him that the well would not produce oil or gas. Mrs. Ferrell does not contend that there was any fraud on the part of Barrett nor does she contend that Barrett acted in bad faith in plugging and abandoning the well as a dry hole, nor does she contend that Barrett was negligent or that he failed to use his best efforts to bring the well in as a producing well. Nowhere in her pleadings does Mrs. Ferrell allege that the letter agreement was ambiguous or that it failed to reflect the complete agreement between the parties. Upon the trial Mrs. Ferrell gave the following testimony in response to a question propounded by counsel for Barrett: “Q. And this letter and this agreement was the agreement you and Mr. Barrett had? A. Yes. That was all.”

During the trial appellee took the position that although the well was a dry hole appellant had not completed the well. She contended that the term “completing” the well, as used in the letter agreement, was a technical term peculiarly applicable to the oil and gas industry and offered expert testimony to explain the meaning of the term “completing” as used in the oil and gas industry. Appellant objected to such testimony on the ground that in the absence of any pleadings of fraud, accident or mistake, parol evidence was inadmissible to vary the terms of the written instrument. The objection was overruled and the expert witness was permitted to testify. While he gave no testimony of the usual understanding of the term “completing” a well by the oil and gas industry, he testified that “Completing the well would be through the equipping and putting it to production.” He further testified that a prudent operator would not complete a dry hole, meaning that a prudent operator would not install completion equipment on a dry hole.

By appellant’s first group of points of error, he contends that the judgment should be reversed and rendered in his favor because the undisputed facts disclosed by the evidence show that he was in no way liable to appellee under a proper interpretation of the contractual relationship existing between the parties. In reply, appellee maintains that the trial court properly construed the contract and that the court’s finding that appellant breached his obligation to complete the well should be sustained. As we understand her contention, she takes the position that the $20,000.00 consideration paid by her was for her Vith cost of (1) the drilling of the well, and (2) the completion of the well. While she makes no contention that appellant was obligated to complete the well as a producing well, she contends that in order for the appellant to fulfill his obligation to complete the well, he was obligated to install completion equipment on the well such as the casing, separator, pump, et cetera. She, therefore, argues that since the undisputed evidence shows that no completion equipment was installed by appellant, the well was never completed and consequently appellant must be held to have breached his obligation to complete the well. Although the trial court seems to have concurred with her contention, we do not believe the agreement is subject to such an interpretation.

The agreement between the parties was that Barrett would sell appellee an undivided ¼⅛ of his %ths working interest in the 84.1 acre lease. The agreement recites that the consideration paid by her was for ¼⅛ of his leasehold interest and was to include her cost of drilling and completing the first well on the leased premises. Contrary to appellee’s contention, the $20,000.00 consideration was not paid to appellant solely for the purpose of defraying appellee’s cost of drilling and completing the well. According to the terms of the agreement, the purchase price of the lease included the cost of the drilling and completing the well without additional cost to the appellee, irrespective of what it may have cost appellant to drill and complete the well. There is nothing in the letter agreement indicating that the parties intended to share in the cost of the drilling and completing of the well on a Vith and %ths basis, nor is there anything to show what part of the consideration was paid for the lease or what part was paid for the drilling and completing of the well.

Appellee makes no contention that the agreement was ambiguous or did not represent the true intentions of the parties. She testified that the letter and the assignment constituted the entire agreement between them. As we interpret the letter agreement, appellant’s sole and only obligation to appellee was to drill and complete a well on the leased premises without additional cost to her. It is without dispute that appellant drilled the well and made a good-faith effort to produce oil or gas therefrom.

An obligation to “complete” the well does not constitute an obligation to complete it as a producing well. As stated in Summers, The Law of Oil and Gas, Sec. 687 (Perm.Ed.1938): “Compensation for drilling an oil or gas well may be made contingent upon the discovery of oil or gas in paying quantities, but a contract will not be so construed in the absence of a clear expression or implication of such intent by the contract.” In the absence of a definition of the term “completing” the well by the parties, the law supplies a definition for the term. The courts in construing contracts for the drilling of wells are not disposed to imply warranties as to production. The presence of the substance sought to be obtained by the drilling is a matter not within the driller’s power to control and unless the contract, by express terms or clear implication, makes payment of his compensation dependent upon securing production, the driller will be held to have completed the well when he has drilled the well to the depth necessary to find oil or gas in paying quantities, or to such a depth as in the absence of such oil or gas would reasonably preclude the probability of finding oil or gas at a further depth. Obviously, a well need not be a producing well to be completed. Cannon v. Wingard, 355 S.W.2d 776, 780 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.); Chapman v. Ellis, 254 S.W. 615, 616 (Tex.Civ.App.—Beaumont 1923, writ dism’d); Frost v. Martin, 203 S.W. 72, 74 (Tex.Civ.App.—Fort Worth 1918, no writ); Summers, The Law of Oil and Gas, sec. 350 (Perm.Ed.1938); Thuss on Texas Oil and Gas, 2nd ed., sec. 32, p. 49.

Appellee’s contention that the term “completing” a well means that no well is ever completed until completion equipment is installed is untenable. Contrary to appellee’s contention, her expert testimony offered for the purpose of explaining the meaning of “completing” the well does not sustain her argument. The expert witness testified that a well is considered to be completed when completion equipment is installed so as to bring the well into production. This testimony of the witness clearly assumes that the well is capable of producing oil and gas because he further testified that a prudent operator would never install completion equipment on a dry hole. Thus the term “completing” a well as used in the oil and gas industry does not mean that the operator is required to install completion equipment on a dry hole.

It is a well recognized canon of construction that technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless there is evidence that the words were used in a different sense. The evidence shows that both parties were experienced in the oil and gas business. The meaning of the term “completing” the well can be assumed to have been in the minds of the parties when the contract was made and, hence, they must be held to have contracted with such meaning in mind. Since the well was a dry hole it did not require the installation of completion equipment because to do so would have amounted to nothing more than a useless waste of time and money. Certainly the parties did not contemplate the law to obligate the appellant to undergo useless expense and effort. Under the record before us, we hold that the appellant performed his obligation by “completing” the well in question as a dry hole. It follows that the appellee is not entitled to damages for a breach of the contract.

Likewise we do not believe that the judgment may be sustained on the basis of appellee’s alternative plea of restitution for unjust enrichment. Under this theory of recovery appellee concedes that appellant had no obligation to install completion equipment on a dry hole. Here again, ap-pellee takes the position that .the entire $20,000.00 consideration that she paid to appellant was for her Vdh cost of the drilling and completing of the well. She argues that her drilling cost amounted to Vdh of $29,324.00, or the sum of $7,331.00. Based on this premise, she argues that in view of the evidence showing that the installation of completion equipment necessary to complete the well would have cost $50,000.00, her ¼⅛ cost of the completion expense would have amounted to $12,500.00. Consequently, she maintains that since appellant was not obligated to expend funds to install completion equipment upon a dry hole, he “pocketed” the $12,500.00 which she had advanced as her ¼⅛ cost of completing the well and was unjustly enriched to that extent. We are not in accord with this proposition.

An action for restitution based on unjust enrichment or for money had and received will lie where one person has obtained money from another by fraud, duress or taking an undue advantage; or when money is paid by one person in consideration of an act to be done by another and the act is not performed; or to recover money received on a consideration that has failed in whole or in part. 6 Tex.Jur.2d Assumpsit sec. 6, p. 551 (1959). The doctrine of unjust enrichment or recovery in quasi contract applies to situations where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the same to the person to whom in good conscience it ought to belong. 66 Am.Jur.2d, Restitution and Implied Contracts, sec. 11, p. 952 (1973). It is fundamental that for a person to be entitled to restitution, he must show not only that there was unjust enrichment, but also that the person sought to be charged had wrongfully secured a benefit or had passively received one which it would be unconscionable for him to retain. 66 Am. Jur.2d Restitution and Implied Contracts, sec. 4, p. 947 (1973).

Appellee’s contention that appellant was unjustly enriched is based on the false assumption that the $20,000.00 consideration which she paid to appellant was solely for her share of the cost of drilling and completing the well. The letter agreement clearly recites that the $20,000.00 consideration was paid by her for ⅛⅛ of the working interest in the lease which would include appellee’s cost of drilling and completing the well. As above stated, the evidence conclusively shows that appellant completed the well as a dry hole and fulfilled the terms of the contract. There is nothing in the evidence to suggest that appellant obtained the funds wrongfully or that in good conscience and justice he should not be allowed to keep the consideration paid him for the lease and the drilling and completing of the well. Appellee does not aver fraud, accident, mistake, duress or bad faith on the part of appellant. Appellee is in no position to seek restitution on the theory that there was a partial failure of consideration since appellant fulfilled his obligation under the agreement.

We have carefully examined the evidence bearing upon the question of whether the parties were engaged in a mining partnership as alleged by appellee. We have concluded that a mining partnership was not shown as a matter of law. There is no evidence in this record showing that the parties agreed to become mining partners. In order to constitute a mining partnership arising by operation of law, there must be not only a joint ownership of mining property (which of itself creates only the relation of co-tenancy), but also a joint operation. The actual working of the mine by the joint owners is essential to a mining partnership. Proof of joint operation is absolutely required before a mining partnership arises. State v. Harrington, 407 S.W.2d 467, 477 (Tex.1966) cert. denied 386 U.S. 944, 87 S.Ct. 977, 17 L.Ed.2d 874 (1967); Gardner v. Wesner, 55 S.W.2d 1104, 1106 (Tex.Civ.App.—Austin 1932, writ ref’d); 38 Tex.Jur.2d, Mines and Minerals, see. 29, p. 731 (1962). There is no evidence of probative force in this record that appel-lee participated in the operation or the drilling of the well. Insofar as the record shows, her only connection with the entire project was that she purchased a ¼⅛ interest in appellant’s working interest. It, therefore, follows that the judgment cannot be sustained on the basis that a mining partnership was created by operation of law.

Accordingly, the judgment of the trial court is reversed and judgment is hereby rendered that the appellee, Maggie L. Ferrell, take nothing.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Beverly EVANS v. TARRANT COUNTY CHILD WELFARE UNIT.
    No. 17882.
    Court of Civil Appeals of Texas, Fort Worth.
    April 15, 1977.
    Rehearing Denied May 12, 1977.

      Law Offices of Yarborough & Pope, Inc., and Frank H. Pope, Jr., Bedford, for appellant.
    Tim C. Curry, Dist. Atty., and Robert J. Gieb, Asst. Dist. Atty., Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Tarrant County Child Welfare Unit (Welfare) filed suit on January 5,1976, to terminate parental rights between Beverly A. Evans (mother) and Jerry A. Stetler (father) and their five minor children and, in the alternative, for managing conservator-ship. An emergency order of trial court appointed Welfare the temporary managing conservator (T/M/C) of all five children and immediate protective custody of same. After trial, the judge (no jury involved) denied termination and ordered Welfare appointed T/M/C of all the children. The oldest girl, Jerianna, has since gone to live with father.

Mother appealed the judgment claiming the trial court erred as a matter of law in not returning custody to her after refusing to terminate her parental rights under Tex. Family Code Ann. §§ 15.05(c)(1) and (2) (1975). She also claims there was no evidence and insufficient evidence for the trial court to find that the best interests of the children would be served by appointing Welfare T/M/C. Also, mother claims Welfare’s appointment to be against the great weight and preponderance of the believable evidence^and that trial court abused its discretion in not returning the children to her custody.

We overrule all of mother’s five points of error and affirm the judgment.

The part of the statement of facts relied upon by Welfare to justify its appointment as T/M/C reflects:

Mother’s present husband, James Evans, pled guilty to a felony charge of indecent exposure to Jerianna, age 15 years, and received an eight-year probated sentence; Evans has a drinking problem-(which he claims has abated since Dec. 1975); Evans drew a firearm on mother;
Evans struck mother in front of her children;
Evans and mother are still living together and propose to take custody of the four younger children.

We find these facts sufficient to support the judgment of the trial court, particularly as we must examine these facts in the light most consistent with the findings of the trial court.

We find the refusal to terminate not to be a dismissal of the case, as contended by mother, particularly in view of the alternate pleading of Welfare. We find the trial court did not abuse its discretion in appointing Welfare T/M/C of the children. Tex.Family Code Ann. § 15.05(c). Also, “The technical rules of civil procedure cannot apply with equal force in a child custody case as in other civil cases, because the sole determining factor in a child custody case must be the best interests of the child.” Erwin v. Erwin, 505 S.W.2d 370, 372 (Tex.Civ.App.—Houston (14th Dist.) 1974, no writ); Burson v. Montgomery, 386 S.W.2d 817 (Tex.Civ.App.—Houston 1965, no writ). “The trial judge in a custody case is afforded a wide discretion and its abuse must be clear in order to warrant a reversal, for he alone is able to judge the credibility and temperament of the parents as well as other intangibles which do not appear in the statement of facts before an appellate court. Rauh v. Rauh, 267 S.W.2d 584 (Tex.Civ.App.—Galveston 1954, no writ)”; Erwin v. Erwin, supra at 372—73; Mumma v. Aquirre, 364 S.W.2d 220 (Tex.1963).

Even more to the point it has been specifically held, in a case where a mother managing conservator lost custody by jury verdict, that when a managing conservator’s marriage places a child with a person who is not a suitable or proper step-parent it may amount to a material change of conditions sufficient to change managing conservators. Wallace v. Fitch, 533 S.W.2d 164 (Tex.Civ.App. — Houston (1st Dist.) 1976, no writ). We agree; application of this rule in this case was not abuse of discretion by the trial court.

Affirmed.


author: ELLIS, Chief Justice. REYNOLDS, Justice.

text:
    Jean Reece GORDY, Appellant, v. Don C. ALEXANDER, Trustee, and Marilyn Howe Looney, Appellees.
    No. 8727.
    Court of Civil Appeals of Texas, Amarillo, Texas.
    April 18, 1977.
    Second Rehearing Denied May 9, 1977.

      Wynne & Jaffe, George H. Kolb, Jordan, Ramsey & Hill, Dallas, for appellant.
    Dean Carlton, Dallas, for appellees.
   ON MOTION FOR REHEARING

ELLIS, Chief Justice.

Our opinion issued on March 23, 1977, is withdrawn, and the following opinion, issued subsequently to appellees’ motion for rehearing, is substituted therefor.

Jean Reece Gordy brought this suit to impose a constructive trust on the assets of the estate of Evelyn Howe, deceased. The district court sustained the defendant’s plea in abatement and dismissed the suit. In her appeal, Gordy has challenged the propriety of the trial court’s action in dismissing the cause and rendering final judgment that she take nothing in this suit. Reversed and remanded.

The cause was not heard on its merits and the facts were not fully developed. However, the record discloses the following matters:

It is alleged in Plaintiffs’ First Amended Original Petition that Mrs. Evelyn Howe was murdered on June 13,1973. Such petition further alleged that Mrs. Howe’s daughter, Marilyn Looney, was involved in the murder; however, there has been no adjudication concerning such allegation. Mrs. Howe’s will left all her property in trust for Looney. The will also provided that Mrs. Howe’s property should pass free of trust to plaintiff Jean Gordy, her sister, if Looney predeceased her mother.

The will was admitted to probate on July 9,1973. On March 12,1975, Gordy filed her action to impose a constructive trust upon the assets which were being held in trust for Looney’s benefit. Looney and the trustee of the testamentary trust interposed their “Plea in Abatement.” The tenor of this plea was that Shellie Looney, Marilyn’s illegitimate daughter, was the murder victim’s sole heir and is eligible to inherit the estate. They argued that Shellie was the only person with standing to impose the constructive trust and that failure to join her was fatal to Gordy’s case. The trial court agreed, and on June 18, 1975, it dismissed the case for failure to join an indis-pensible party. Gordy moved to reinstate the ease and on July 11, 1975, her motion was granted. In repleading her case, Gordy attempted to join Shellie, two-and-one-half years old, as a plaintiff. Her task was complicated by the fact that Shellie had been adopted away from Looney. The adoptive parents declined the opportunity to become involved in the lawsuit, but permitted their attorney to appear and represent Shellie in the lawsuit. After concluding that Gordy had failed in her attempt to join Shellie, the trial court, on November 25, 1975, sustained Looney’s “Plea in Abatement” (except as to the contention that the cause should be heard in the probate court) and dismissed Gordy’s suit and rendered a final take-nothing judgment against her; however, the cause was dismissed as to Shellie without prejudice to prosecute any claim she may assert. Gor-dy’s appeal raises two points of error which attack the actions by the trial court in failing to consider Shellie as a party and in dismissing Gordy’s cause without prejudice. Preliminarily to passing upon Gordy’s points of error, we shall consider two jurisdictional attacks raised by Looney’s two cross points.

In her first cross point, Looney has argued that this court is without jurisdiction over this appeal. When it reinstated Gordy’s action on July 11, 1975, the trial court did so by announcing its decision in open court. Looney has argued that this oral order was ineffective to reinstate the cause and that the thirty day period for appeal lapsed without appeal being perfected. In our opinion, the trial court’s announcement constituted a rendition of its decree reinstating the cause. Farr v. McKinzie, 477 S.W.2d 672 (Tex.Civ.App.— Houston [14th Dist.] 1972, writ ref’d n. r. e.); Western Casualty and Surety Company v. Southard, 465 S.W.2d 238 (Tex.Civ.App. —Amarillo 1971, no writ). Also judgment nunc pro tunc regarding reinstatement of the case was entered and included in a supplemental transcript filed with this court. In this connection see : Panhandle Const. Co. v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068 (1934, opinion adopted). In view of the foregoing, the trial court retained jurisdiction over the cause and Gor-dy’s first cross point is overruled.

Looney’s second cross point attacks the subject matter jurisdiction of the district court. Looney has argued that Section 5 of the Texas Probate Code vests exclusive subject matter jurisdiction over this action in the probate court of Dallas County.

Section 5(d) was amended in 1973 to read:
All courts exercising original probate jurisdiction shall have the power to hear all matters incident.to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon' incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills. Tex.Prob. Code Ann. § 5(d) (emphasis added)

Although the amendments were intended to broaden the jurisdiction of the probate court, decisions construing the amendments have not given them the effect of excluding the district court’s jurisdiction. Folliott v. Bozeman, 526 S.W.2d 577 (Tex.Civ.App.— Corpus Christi 1975, writ ref’d n. r. e.); Weatherly v. Byrd, 519 S.W.2d 504 (Tex. Civ.App.—Fort Worth 1975, no writ). Looney has argued that the imposition of a constructive trust is a matter “incident to an estate,” and that exclusive jurisdiction to hear such cases rests in the probate court. The record shows that the estate has already been probated and turned over to the testamentary trustee, and the present proceedings are to determine whether a constructive trust should be imposed and alternatively to construe the will.

A constructive trust is considered a “creature of equity” designed to correct an injustice. The district courts clearly have jurisdiction in actions to impose a constructive trust. Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 561 (1948); Pritchett v. Henry, 287 S.W.2d 546 (Tex.Civ.App.— Beaumont 1955, writ dism’d); Schwartzel and Wilshusen, Texas Probate Jurisdiction —There’s a Will, Where’s the Way?, 53 Tex.L.Rev, 323, 344-47 (1975). Amended Section 5 does not reflect any legislative intent to alter or overturn this well-established rule. Insofar as construction of the will may be involved, jurisdiction of such matter is exclusively in the district court. Power v. Landram, 424 S.W.2d 24 (Tex.Civ. App. — Houston [1st Dist.] 1968, no writ). We hold that the district court had subject matter jurisdiction over this cause. Looney’s second cross point is overruled.

Both of Gordy’s points of error attack the trial court’s action in dismissing the cause pursuant to Looney’s “Plea in Abatement.” By that instrument, Looney requested that the court dismiss the suit because (1) Shellie Looney was not joined, and (2) Gordy had no standing to prosecute the action.

In substance, Looney’s “Plea in Abatement” was a plea in bar. By it, Looney sought a final ruling from the trial court that Gordy lacked standing to bring this suit and that the cause should be dismissed. Regardless of the label attached to it, this was a plea in bar rather than a plea in abatement. Smith v. City of Dallas, 404 S.W.2d 839 (Tex.Civ.App.—Dallas 1966, no writ).

(7] It is our opinion that it was error for the trial court to dismiss this action pursuant to Looney’s plea in bar. Absent an agreement between the parties, a summary disposition based upon pleadings, affidavits, and arguments of counsel can be had only by summary judgment proceedings. Tex.R. Civ.P. 166-A; Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208 (1958); Smith v. City of Dallas, supra. Moreover, summary judgment would be proper only in the event there are no unresolved fact issues.

Furthermore, we have concluded that the trial court erred in holding that Gordy had no justiciable interest in this controversy. To prevent a murderer from profiting by his own wrong, equity will impress a constructive trust upon any assets he received through his victim’s will. Pritchett v. Henry, 287 S.W.2d 546 (Tex. Civ.App.—Beaumont 1955, writ dism’d). Whether the trust will be impressed in favor of the heirs of the murder victim or the contingent beneficiary named in the will should be determined according to the intent of the murder victim. In re Wilson’s Will, 5 Wis.2d 178, 92 N.W.2d 282 (1958). Unless established as a matter of law, this intent question is one for the trier of fact and both the heirs of the murder victim and the contingent beneficiary named in the will have a justiciable interest in the controversy. In the case before us, both Shel-lie Looney, Mrs. Howe’s sole eligible heir at law, and Gordy, the contingent beneficiary named in Mrs. Howe’s will, have a justicia-ble interest in the case. See Glass v. Carpenter, 330 S.W.2d 530, 536 (Tex.Civ.App.— San Antonio 1959, writ ref’d n. r. e.).

Gordy’s contention that she has a justicia-ble interest in this action is further supported by our supreme court’s recent decision in Deveroex v. Nelson, 529 S.W.2d 510 (Tex.1975). In that case, the primary beneficiary under a life insurance policy murdered the insured. Although article 21.23 of the Texas Insurance Code provided that, in such circumstances, the insurance proceeds should pass to the “nearest relative” of the murder victim, the court construed the statute so as to accommodate the murder victim’s expressed intent. Instead of the “nearest relative,” the court allowed the named contingent beneficiary under the policy to recover the proceeds. The court reached this conclusion even though the contingency, death of the primary beneficiary, had not yet occurred. In this case, as in that one, the intent of the murder victim should determine who benefits from any constructive trust. See also, Williams v. Williams, 262 S.W.2d 111 (Tex.Civ.App.— Galveston 1953, no writ). However, we do not agree that the decedent’s intention for Gordy to take, under these circumstances, has been conclusively established and it is our opinion that the opportunity for complete factual development in this regard should be available to all parties.

Looney has argued, however, that prior Texas decisions have impressed constructive trusts only in favor of the heirs of the murder victim. See e. g. Pritchett v. Henry, supra. None of the cases cited for this proposition by Gordy involved a will naming a contingent beneficiary to take in the event the alleged wrongdoer as primary beneficiary was disqualified to take under the will. Because the issue regarding a contingent beneficiary was not raised in those cases, we do not consider those cases controlling here.

Shellie, as an heir, has a justiciable interest under which she can prevail in the event that the fact finder determines that Mrs. Howe would have intended that Shel-lie take the assets of the estate if the primary beneficiary under the will was disqualified to do so. Because Shellie has a justiciable interest in the case, she should be made a party. Although the plaintiff’s amended petition reflects that an agreement has been made whereunder the heir and the contingent beneficiary, as co-plaintiffs, would share equally in any benefits recovered by either of them, we hold that the heir has not effectively been made a party to the suit. No suit has been brought in her behalf by a next friend and she has not been made a defendant.

We overrule appellant’s points of error insofar as they complain of the trial court’s conclusion that Shellie was not effectively made a party to the suit. We sustain appellant’s points of error complaining of the trial court’s action in holding that Gordy did not have a justiciable interest in the estate of the deceased and in rendering final judgment against her. We do not reach the appellant’s other contentions in support of her points of error.

In the light of the foregoing, it is our opinion that the trial court erred in rendering a final judgment against Gordy in response to the plea in abatement, and in effect, dismissing Gordy’s action with prejudice. We agree, however, with the trial court’s conclusion that Shellie, as an heir, is an indispensible and necessary party to this action and that her right to have an action brought in her behalf should not be prejudiced. The foregoing facts and circumstances of this case show no reason why Shellie should not be a party through her next friend. Any competent adult may sue in that capacity so long as it is in the best interest of the child. Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). We therefore reverse the judgment of the trial court and remand the cause to it with instructions to abate the action until Shellie Looney is properly made a party. At that time, the merits of the case — including questions involving Mrs. Howe’s intent — can be fully litigated. This holding is limited to the particular facts and circumstances involved in this case, wherein it appears feasible to join the child by next friend. We express no opinion with respect to circumstances where such joinder cannot be accomplished.

Appellees’ Motion for Rehearing is overruled.

CONCURRING AND DISSENTING OPINION

REYNOLDS, Justice.

Because the trial court erred in summarily determining that Jean Reece Gordy has no justiciable interest in this litigation, I concur that the judgment must be reversed and the cause remanded. However, for the reason that I do not agree Shellie Looney is an indispensible party to this action, I respectfully disassociate myself from the majority’s instruction that the proceedings be abated until she is made a party.

Certainly, Shellie Looney would be a proper party to the action; but, in my view of Rule 39, Texas Rules of Civil Procedure, she is not an indispensible party. By that rule, she is an indispensible party only if she is subject to service of process and if (1) in her absence complete relief cannot be accorded among those already parties to this cause, or (2) she claims an interest in the subject matter of the litigation and is so situated that an adjudication in her absence may (i) actually impair or impede her ability to protect that interest, or (ii) subject any of those who are parties to a substantial risk by reason of that interest. It seems at once apparent that the circumstances of this cause do not bring Shellie Looney within the operation of the rule.

First and foremost, Shellie Looney’s adoptive identity has not been revealed and, so long as it remains undisclosed, she is not subject to service of process. She, therefore, is not, within the meaning of the rule, an indispensible party.

Moreover, the issue now before the trial court — i. e., whether a constructive trust is to be imposed on the decedent’s estate in favor of Jean Reece Gordy — can be adjudicated in the absence of Shellie Looney. While it may be said that any interest she may have as an heir of the decedent could be better protected if she were a party to the action, the decisive fact is that an affirmative claim of interest in her behalf has not been interposed in the proceedings.

Additionally, there is no assurance of Shellie Looney’s voluntary appearance in the cause. Thus, sans service of process on or a voluntary appearance by Shellie Looney, neither of which is within the control of the parties to the cause, the majority’s instruction to abate dictates that the issue now ripe for adjudication will pend forever.

Accordingly, I respectfully dissent to the holding that the proceedings be abated until Shellie Looney is made a party. I would reverse the judgment and remand the cause without direction.


author: J. CURTISS BROWN, Chief Justice.

text:
    Lucille PURSWELL, Appellant, v. MALONE, MURPHY & FENLEY, Appellee.
    No. 1609.
    Court of Civil Appeals of Texas, 14th Supreme Judicial District.
    April 20, 1977.
    Rehearing Denied May 11, 1977.
    Lester Fleming, Houston, for appellant.
    Paul C. Murphy, III, Malone, Murphy & Fenley, Huntsville, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a summary judgment. The dispute involved Malone, Murphy & Fenley’s (appellee) obligation on a note payable to Lucille Purswell (appellant) which it assumed upon receiving title in 1974 to certain real property in Harris County. The trial court granted appellee’s motion for summary judgment. From this judgment, appellant appealed.

The transcript in this case was filed on January 21, 1977. Submission of the case was set for April 6, 1977. On February 18, 1977, 3 days before the end of her 30 day filing period under Tex.R.Civ.P. 414, appellant filed a motion for a 30 day extension within which to file her brief. This court granted a 17 day extension until March 10, 1977. Any further extension would have required us to disrupt our docket. On March 10, appellant filed her second motion to extend time for filing her brief which we denied.

Appellee has filed a motion to dismiss the appeal in accordance with Tex.R. Civ.P. 415. We take note of two pertinent facts: First, appellant waited until 3 days before the end of the 30 day period before requesting any extension for the filing of appellant’s brief. Second, under Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex.Sup.1970), appellant would only be required to state as a point of error that the trial court erred in granting the motion for summary judgment. This assignment, along with her argument as to any fact or legal issue presented, would have been sufficient.

Furthermore, under normal circumstances, we freely grant leave to augment or amend briefs where no new points of error are raised. Appellee’s motion to dismiss the appeal under rule 415 is granted. Appellant’s motion to transfer this case to the Court of Civil Appeals, First Supreme Judicial District of Texas is denied.

Appeal dismissed.


author: CIRE, Justice.

text:
    SOUTHAMPTON CIVIC CLUB et al., Appellants, v. John H. FOXWORTH et al., Appellees.
    No. 1586.
    Court of Civil Appeals of Texas, 14th Supreme Judicial District.
    April 20, 1977.
    Rehearing Denied May 11, 1977.
    Gary L. Murphree, Urban, Coolidge, Pennington & Scott, Houston, for appellants.
    Bettye J. Lambert, Houston, for appel-lees.
   CIRE, Justice.

Plaintiffs appeal from the denial of an injunction to enforce a restrictive covenant.

Appellant Southampton Civic Club sued for an injunction against appellees James H. Foxworth and his wife, Erna Beth Fox-worth, to enforce a restrictive covenant on the Foxworths’ residence. Southampton alleged the Foxworths were renting an apartment, located upstairs from their unattached garage, to a Rice University student for profit and that this was a violation of the restrictions in force against their property: “That no part of said property shall ever be used for the purpose of wholesale or retail business . . .. No apartment house or duplex will be permitted in the Addition; the object of this provision being to prohibit multible [sic] housing throughout the entire addition.”

Trial was to the court, which denied the injunction. The court found that the Fox-worths have never used their property for a wholesale or retail business; that they occupy a home in Southampton Place; that there is a garage not attached to the residence but joined by a sidewalk and fence, which garage has space on the first floor for two automobiles, and on the second floor is a room, bathroom, and closet; that the second floor of the garage has a refrigerator but no cooking facilities of any type; that the room has been used by Rice University students who have slept and studied in the room and have taken their meals elsewhere; that the Foxworths have rented the room on three different occasions to Rice University students for a rental varying from $45 to $85 per month; that the last student tenant was not related to the Foxworths nor was he a domestic servant employed upon the premises by them, though he did perform many chores for the Foxworths and became like a member of their family; that there is one meter for each of the utilities on the lot, which is in the Foxworths’ name and is paid for by them; that there is one mailbox on the house, into which all mail to the property is deposited; that the rental received by the Foxworths has been used to pay utilities and maintain the yard and property generally; and that the Foxworths intend to rent the room in its present condition in the future without any cooking facilities if the “right” person comes along. The court stated as conclusions of law that the renting and use of the garage room did not violate the subdivision restrictions, “there being no multiple housing as prohibited by the original subdividers, and the renting or use of said room being only incidental to the use of the premises as a single family residence of defendants”; the renting of the room does not constitute the renting of the premises as a source of financial gain; there was no showing of any appreciable damage resulting from the use of the property; and there is no housekeeping unit in the room above the garage.

Appellants bring this appeal on 19 points of error. Points one, two, and three contend the trial court erred in its conclusion that the renting of the garage room does not constitute the renting of the premises as a source of financial gain. In its eighteenth point, appellant asserts that the evidence proved as a matter of law that the renting of the garage room constitutes multiple housing, as prohibited by the subdivision restrictions. We sustain these points of error.

This case is governed by the holding in Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1958), in which the supreme court construed the covenant now in question. That case involved roomers who lived in the main dwelling house. The supreme court said, 322 S.W.2d at 518, “the renting of a room or rooms in a private residence, which is merely incidental to its use as a family residence, does not violate a restriction limiting the use of the property to a single-family residence.” It is evidently upon this language that the trial court in this case based its decision. However, on motion for rehearing, the supreme court said, 322 S.W.2d at 520:

If the evidence establishes as a matter of law, or if the trial court finds as a fact on conflicting evidence or as a reasonable inference from the evidence, that a particular defendant is . using an establishment on his premises, separate and apart from his dwelling house, for renting as a source of financial gain that activity should be enjoined.

We believe this latter holding controls the present case.

It was uncontradicted that the Fox-worths received $85 each month as rental on the garage apartment (an establishment on the premises, separate and apart from the dwelling house), and that approximately $6 per month was spent on the utilities for the garage apartment. The remainder of the rental money was used for upkeep of the residential grounds. The fact that the Foxworths used each month’s rental for residential maintenance does not alter the fact that this income was a source of financial gain. This factor distinguishes the present case from Tucker v. Soliz, 483 S.W.2d 367 (Tex.Civ.App.-Houston [1st Dist.] 1972, writ ref’d n. r. e.), where no financial gain from the use of a garage apartment was present.

The evidence establishes that the renting of the garage apartment by the Foxworths constitutes a substantial violation of the restrictions. This is a sufficient showing of damages upon which to base an injunction to enforce a covenant restricting the use of land. Viking Homes, Inc. v. Larkin, 452 S.W.2d 25, 27 (Tex.Civ.App.-Houston [14th Dist.] 1970, no writ).

Because the trial court has failed to apply the law correctly to undisputed facts, we reverse its judgment. Manning v. Wieser, 474 S.W.2d 448, 449 (Tex.Sup.1971). We render judgment that appellees John H. Foxworth and Erna Beth Foxworth be enjoined from renting the garage apartment as a source of financial gain.

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


text:
    LPC LEASING, INC., et al., Appellants, v. Charles E. SMITH et al., Appellees.
    No. 1618.
    Court of Civil Appeals of Texas, 14th Supreme Judicial District.
    April 20, 1977.
    John L. Carter, Vinson & Elkins, Houston, for appellants.

      David D. Peden, Jr., Sheldon E. Richie, Richie, Greenburg & Brackman, Houston, for appellees.
   CIRE, Justice.

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

On February 12, 1975 three of the appellants, LPC Leasing, Inc., Lucey Products Co., and Robert W. Nygren, trustee, entered into a conveyance, transfer, and assignment agreement with Thunderbird Airways, Inc. (Old Thunderbird), Charles E. Smith, Trudy Cooper, and J. H. Rose Truck Line, Inc. (Truck), wherein the three appellants purchased all the assets and assumed all of the liabilities of Old Thunderbird. Prior to the conveyance Smith was employed by Old Thunderbird as vice-president and Cooper was employed as its secretary. Each owned five percent of the stock. The business of Old Thunderbird consisted of operating a Learjet charter and taxi business at Hobby Airport in Houston, Texas. Smith and Cooper had actually been running the business.

In the contract conveying the assets and liabilities of Old Thunderbird, Smith and Cooper are individually named in several paragraphs: Corporate Authorization and Title, Tax Matters, Litigation, Compliance with the Laws, Additional Facts, Proprietary Rights, Labor Disputes, and Nature of Liability. They are not named in paragraph (8) which stated:

Grantor [Old Thunderbird] and Truck hereby covenant and agree not to compete with LPC, LUCEY or Trustee, or with any affiliates thereof, directly or indirectly, for a period of five (5) years, in the air taxi or charter business. Grantor and Truck shall further undertake to insure that no officers, directors or shareholders thereof so compete during said term.

The contract was signed by J. E. Rose as president of Thunderbird Airways, Inc. and Smith and Cooper individually and by Rose as president of J. H. Rose Truck Lines, Inc.

The agreement transferred the assets of Old Thunderbird to LPC Leasing and Kujon Airways. Kujon’s name was then changed to Thunderbird Airways (New Thunderbird). It is the other appellant in this cause.

Shortly before the transfer, Smith and Cooper had gone to work for Kujon. They continued to work for New Thunderbird, its successor, for almost a year. Their employment was terminated in early 1976 and they started an air taxi and charter business at Hobby Airport under the name of Global Airways, Inc. They own 100 percent of the stock of this corporation. Appellants filed their lawsuit to enjoin the operation of Global’s business, claiming it was a violation of the non-competition covenant in the February 12, 1975 agreement. Appellees stipulated that they were in the air taxi-charter business, but denied that they were bound by the covenant in the February 12 agreement. The trial court agreed with appellees and denied the request for a temporary injunction.

Appellants appeal on two points of error. Their first point contends that:

The trial court erred in holding that officers, directors, and stockholders of a dissolved corporation are not bound by that corporation’s covenant not to compete when the dissolved corporation has also covenanted to undertake to insure that its officers, directors, and shareholders will also be bound by the covenant not to compete.

Appellants frankly admit that Smith and Cooper were not named in paragraph (8) of the conveyance because of the restrictions placed on covenants not to compete. A covenant not to compete must be ancillary to another undertaking, such as an employment contract, an agreement for the sale of assets of the business, or a settlement agreement. Justin Belt Co., Inc. v. Yost, 502 S.W.2d 681 (Tex.1973). Here, there was no settlement agreement and Smith and Cooper were not conveying the assets of a business or entering into a contract of employment with appellants. Appellants, however, contend that a corporation can only act through its officers, board of directors, or stockholders, and since the corporation covenanted not to compete, the appellees as shareholders and officers of the corporation are bound by such covenant. Appellants, in effect, attempt to do indirectly what the law does not permit to be done directly. The fallacy in appellants’ argument is that while the corporation is bound by the covenant, and appellees would be bound if they were still officers or employees of the corporation acting in such capacity, it does not follow that they are bound as individuals.

Appellants rely on Powell Elec. Mfg. Co., Inc. v. Williams, 515 S.W.2d 156 (Tex. Civ.App.—Houston [14th Dist.] 1974, no writ) to support their position in this case. There, this court held that an injunction prohibiting an individual from competing would preclude the individual’s use of a corporation to compete with his former employer. Judge Tunks, at 158-59, held that:

The temporary injunction that the trial court granted against Williams was binding not only upon him, but also against “those persons in active concert or participation with” him who had notice of the injunction. Texas Rules of Civil Procedure, rule 683. Under the facts of this case the arrangement between Williams and McDonald was probably a violation by them of the injunction already issued against Williams. Williams organized Magnetic for a purpose which constituted competition with Powell. He was its sole shareholder. He solicited Powell’s customers for orders in behalf of Magnetic. He used his funds and his credit to furnish the original operating capital for Magnetic. He turned his shares over to McDonald under the terms of an agreement whereby he will participate in the profits of the corporation to the extent of $30,000.
The trial court should have granted Powell’s petition that the original temporary injunction be broadened so as to include Magnetic as an enjoined party.

The appellees here are not officers, agents, servants, or employees of Old Thunderbird, nor are they in active concert or participation with it.

It is true that Old Thunderbird and J. H. Rose Truck Lines agreed to “undertake to insure that no officers, directors or shareholders thereof so compete . . .

However, whether those parties breached such agreement is not a part of this controversy, and such agreement cannot bind Smith and Cooper individually.

Appellees correctly point out that had appellants desired such a covenant with Smith and Cooper they could have legally and correctly secured it at the time Smith and Cooper accepted employment with Ku-jon (New Thunderbird).

In their second point of error, appellants complain that the trial court erred in refusing to admit into evidence plaintiffs’ exhibit number two. This was a letter, written before the execution of the agreement. Appellants claim this 'letter established that appellees Smith and Cooper understood that they had agreed not to compete with appellants. There was no error in the exclusion of such letter. It would only be material if the contract was ambiguous, and we find no ambiguity.

Affirmed.


author: YOUNG, Justice.

text:
    Darwin D. BAUCUM, Appellant, v. STATEWIDE HOT SHOT and Roy Jenkins, Appellees.
    No. 1121.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 20, 1977.
    Rehearing Denied May 12, 1977.

      L. H. Warburton, Jr., Perkins, Davis, Oden & Warburton, Homer E. Dean, Alice, for appellant.
    Harry F. Maddin, Maddin, White & Brin, Inc., Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is an appeal by the plaintiff from an unfavorable trial court’s judgment resulting from a jury trial wherein he sought damages for personal injuries arising from an industrial accident.

In the trial of this suit by Darwin D. Baucum against Statewide Hot Shot and its employee, Roy Jenkins, the jury refused to find upon a general submission of negligence that the defendants were negligent. In the charge was an instruction, among others, on unavoidable accident. Based upon the unanimous verdict of the jury, the trial court rendered judgment that plaintiff take nothing. After a later evidentiary hearing, the trial judge overruled the plaintiff’s amended motion for new trial which alleged jury misconduct. Plaintiff appeals.

On June 26,1972, appellant was employed as a roustabout by Brown & Root, Inc., at its plant yard near Ingleside, Texas. At approximately 11:55 A.M. on that date, appellant was standing near a large crane, owned by Brown & Root, which was loading drill collars (pipe) from a barge onto a tractor-trailer owned by Hot Shot. Jenkins, a Hot Shot employee, was the driver of the truck. After loading, Jenkins began to drive the tractor-trailer rig forward when a large wooden beam lying near the rig was caused by the rig to be flipped up and to strike appellant causing the personal injuries for which he sought damages.

Appellant has presented us 11 points of error. Among appellant’s points of error are several legal insufficiency points (“no evidence” and “as a matter of law”). With each such point, we shall view the evidence in a light most favorable in support of the jury findings and consider only the evidence and inferences which support the findings and reject the evidence and inferences contrary to the findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1974). In considering the appellant’s factual insufficiency points of error (“insufficient evidence” and “against the great weight and preponderance of the evidence”), we shall examine the whole record to determine whether the evidence supports the jury findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellant, in his points 1, 2, 3 and 4, asserts that as a matter of law, he has proven negligence or, in the alternative, that the jury’s failure to answer the negligence issue in the affirmative is against the great weight and preponderance of the evidence and for such reasons we should reverse and remand the case for retrial. Appellant urges several theories for these assertions: that Jenkins was negligent for pulling forward from the loading zone rather than backing away; that Jenkins did not maintain a proper lookout; and that Jenkins pulled to the right as he moved forward. We find evidence in the record in support of and in opposition to each of those theories of negligence which we set out as follows.

About failure to back out, appellant presented testimony to the effect that generally trucks loading at this dock backed out. The contrary evidence, by Jenkins, is that he pulled forward because Statewide’s other truck blocked his way to the rear. Statewide had sent two trucks to Brown & Root for loading on the day of the accident and the other truck was parked to the rear of Jenkins’ truck at the time of the accident.

About improper lookout, there is evidence that Jenkins did not look around the truck prior to pulling away. Jenkins testified that the operator of the crane guided him into the loading area. He further testified that he received no assistance in pulling away from the dock. Also he said that the drift pin (attached to the beam) was moved by someone after he had parked for loading so that it extended out from the end of the beam; that one of his wheels hit the pin causing the trailer to move. This evidence indicates that had the pin been extended when he parked he would have seen it.

About moving to the right, the appellant and Robert Davis, regional manager for Brown & Root, testified that Jenkins pulled his vehicle to the right as he moved away from the loading area. Jenkins testified, however, that he pulled straight forward from the loading area. All of the above demonstrates that the appellant has failed in his burden to establish the legal orfactual insufficiency of the evidence that Jenkins was negligent. Appellant’s points 1, 2, 3 and 4 are overruled.

In his points 5 and 6 the appellant contends that the court erred in refusing to grant a new trial because the jury’s findings of no damages to special issues 5-a and 5-b concerning pain and suffering were not supported by the evidence. In order for this position to be tenable, the issues which he complains of must be supported by the evidence and must be material. C & R Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.Sup.1966); Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). Although we do agree with appellant that the jury answers are not supported by the evidence, we cannot agree that they are material. The jury has absolved the defendant company of any negligence by its negative answer to the general submission of negligence. It seems clear that this issue answered the ultimate and only issue on liability of the appellees in the case. The subsequent issues on damages therefore became immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372,124 S.W.2d 334 (1939, opinion adopted); Miller v. Hood, 536 S.W.2d 278 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); Martin v. Jenkins, 381 S.W.2d 115 (Tex.Civ.App.—Amarillo 1964, writ ref’d n. r. e.); Dunn v. Sears Roebuck and Co., 371 S.W.2d 731 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.). Appellant’s points 5 and 6 are overruled.

Finally, in his points 7, 8, 9,10 and 11, the appellant asserts that the jury was guilty of misconduct because members of the jury discussed evidence not presented in the trial of the case and a statement was made during jury deliberations that the answers to special issues 1 and 2 did not matter because Baucum would receive his award of damages regardless of what the answers to 1 and 2 might be.

It is well settled law under rule 327, T.R.C.P., that the party asserting misconduct must prove misconduct; that it was material; and that it was calculated to and probably did result in harm. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.Sup.1969); Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615 (1951). In applying this test, it is necessary for us to consider the entire record. The entire record has been interpreted to include all parts of the record which may throw light on the issue including evidence presented in the trial on the merits as well as that in the motion for new trial hearing. Fountain v. Ferguson, supra; Western Textile Products Co. of Texas v. Sidran, 153 Tex. 21, 262 S.W.2d 942 (1953); Motley v. Mielsch, 145 Tex. 557, 200 S.W.2d 622 (1947). Further, in determining if this burden has been met we are limited to considering only the overt acts of the jury and we must disregard testimony as to their mental processes. Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242 (1955).

Our full review of the record reveals to us that there is a conflict in the testimony as to whether there was in fact a statement made that it did not matter how the jury answered issues 1 and 2. Where the evidence is conflicting as to the occurrence of misconduct, the decision of the trial court either way on the question is final. Trousdale v. Texas & New Orleans Railroad Co., supra; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Roming v. McDonald, 514 S.W.2d 129 (Tex.Civ.App.—El Paso 1974, writ ref’d n. r. e.); Vahlsing Christina Corporation v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex.Civ. App.—Corpus Christi 1974, no writ). Moreover, where the trial court, as here, made no specific findings of fact as to whether the alleged misconduct occurred, it is presumed that the trial court found that the misconduct did not occur, if there is evidence to support such a finding. Barrington v. Duncan, supra; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (1932, opinion adopted). Therefore the trial judge’s implied finding that jury misconduct did not specifically occur in this instance is binding. In re Estate of Moore, 464 S.W.2d 428 (Tex.Civ.App.—Eastland 1971, writ ref’d n. r. e.); Vahlsing Christina Corporation v. Ryman Well Service, Inc., supra.

Next, appellant complains of the jury’s discussion of their personal experiences during the deliberations. It is clear that whether jury misconduct occurred is a question of fact for the trial judge to determine. Trousdale v.. Texas & New Orleans Railroad Co., supra; Motley v. Mielsch, supra. Also the trial court’s refusal of a new trial on express or implied findings of no occurrence of jury misconduct is ordinarily binding on the reviewing court and will be reversed only where clear abuse of discretion is shown. State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961). In the present case, the trial court expressly found that while the jurors during their deliberation imparted to one another some of their general experiences, no juror held himself out to be an expert in the field of inquiry. In Akers v. Epperson, 141 Tex. 189, 171 S.W.2d 483 (1943), the Supreme Court held that while a juror had related personal experience to his fellow jurors he did not hold himself out as an expert and therefore did not become an expert witness in the jury room. In the present record, we find no statement by any of the jurors involved in the purported misconduct which would lead to the conclusion that any of them acted as experts in the jury room. Consequently, we hold that the trial judge did not abuse his discretion by overruling appellant’s amended motion for new trial based on jury misconduct. Appellant’s points 7, 8, 9, 10 and 11 are overruled.

The judgment of the trial court is AFFIRMED.

BISSETT, J., not sitting.


author: O’QUINN, Justice.

text:
    Donald H. SHEFFIELD et al., Appellants, v. Honorable Dolph BRISCOE, Governor of Texas, et al., Appellees.
    No. 12522.
    Court of Civil Appeals of Texas, Austin.
    April 20, 1977.
    Rehearing Denied May 11, 1977.
    O. Earl Luna, Thomas V. Murto, III, Luna & Murto, Dallas, for appellants.

      John L. Hill, Atty. Gen., M. Lynn Taylor, Asst. Atty. Gen., Austin, for appellees.
   O’QUINN, Justice.

Appellants, as plaintiffs below, brought this action for declaratory judgment and to enjoin the Commissioner of Education from determining the amount of local funds assigned to each school district of the State, without first adjusting reported property values “to equalize the local school district effort.”

Stated in the language of appellants, by this action appellants sought to obtain “a full and complete declaration with regard to . Sections 16.001 note ‘Sec. 13,’ 16.251, and 16.252 of the Texas Education Code,” as amended in 1975 [Acts 1975, 64th Leg., p. 877, ch. 334], and to secure a court . . order that under [such sections, which deal with ‘Financing of Public School Education’] . . . the Commissioner of Education is required to review reported values of school districts’ property and to equalize such values prior to using such values in determining the amount of funds each district will be assigned as its local share and the amount of funds each district is to receive from the state in the Foundation School Program.”

For purposes of this opinion, we will sometimes refer to appellants as the School District and to appellees as the State.

In district court the State answered by a plea for dismissal on the ground that the suit is one against the State which requires legislative permission for its filing and maintenance, and the further ground that declaratory judgment if rendered “would not terminate the uncertainty or controversy giving rise to the proceeding.” Art. 2524-1, sec. 6, V.A.C.S. The State also moved to abate the suit until, all other school districts of the state could be made parties on the ground that the other districts were necessary and indispensible parties “to a complete and just disposition of this controversy.”

After hearing, the district court, in August of 1976, ordered the suit dismissed, upon findings (1) that this is an action against the State which is barred for want of consent and (2) that plaintiffs failed to show a justiciable controversy upon which declaratory relief might be granted. The trial court declined to make any finding as to the State’s plea to abate the suit until all school districts of the state could be joined as necessary and indispensible parties.

Appellants bring four points of error. Under the first two points appellants challenge the trial court’s order of dismissal because, appellants contend, (1) the suit is not one against the State and (2) there exists a justiciable controversy upon which relief may be granted under the Uniform Declaratory Judgments Act.

We will affirm the judgment of the trial court, upon the grounds and for the reasons stated subsequently in this opinion.

The extensive amendment in 1975 of Chapter 16, titled Foundation School Program, of the Texas Education Code (as found in Acts 1975, 64th Leg., p. 877, ch. 334) included the several statutes appellants rely upon as a basis for their suit. Section 16.001 of the Code (amended in Section 1 of the amendatory Act of 1975) declares the State Policy “that each student enrolled in the public school system shall have access to programs and services that are appropriate to his educational needs and that are substantially equal to those available to any similar student, notwithstanding varying local economic factors.” (Emphasis added)

Section 16.251, stating the general rule for financing the program, fixes the limits of total cost, and provides that the program “shall be financed by:

“(1) ad valorem tax revenue generated by an equalized local school district effort;
“(2) state and county available school funds distributed in accordance with law; and
“(3) state funds appropriated for the purposes of public school education and allocated to each district in an amount sufficient to finance the cost of each district’s Foundation School Program not covered by other funds specified in this subsection.” (Emphasis added)

Section 16.252 prescribes the “Local Share of Program Cost” in this language:

“(a) A school district’s share of its guaranteed entitlement under the Foundation School Program is determined by multiplying the total taxable value of property in the district by an index rate of 30 cents per $100 valuation for the 1975-1976 school year and 35 cents per $100 valuation for each school year thereafter.” (Emphasis added)
For reasons no doubt apparent to the Legislature, but not disclosed by the record in this case, certain “provisos” were added to the above general statement, to cover only the school years of 1975-1976 and 1976-1977, which provisions are not at issue in this suit.

Section 16.252, in subsection (b) provides that:

“A district’s share of the program cost for the 1975-1976 and 1976-1977 school years is based on the value of the district’s property for the 1974 tax year as reported in the ‘Official Compilation of 1974 School District Market Value Data,’ Office of the Governor, State of Texas. The commissioner may adjust the values reported in the official compilation to correct apparent discrepancies and may reduce the local share of a district in which local natural or economic disaster has dramatically reduced the value of the property since 1974. The commissioner’s decision is final. For succeeding school years, a district’s share is based on the value of its property for the tax year commencing in the school year two years before the school year for which the share is calculated. However, the commissioner may reduce the local share of a district in which local natural or economic disaster has dramatically reduced the value of taxable property in the intervening two-year period.” (Emphasis added)

In Section 10 of the amendatory Act of 1975 the Legislature provided that:

“The governor shall conduct a study to determine methods of allocating state funds to school districts which will insure that each student of this state has access to programs and services that are appropriate to his educational needs regardless of geographical differences and varying local economic factors.”

By this provision the Legislature prescribed a mode of achieving reality in the “State Policy,” as declared under Section 1 of the Act, by amendment of Section 16.001 of the Code previously noted.

Section 10 of the Act of 1975 also prescribed in subsection (b) that:

“The study [conducted by the Governor] shall include a determination of each school district’s ability to support public education based on the value of taxable property in the district." (Emphasis added)

Under subsection (f), provisions of Section 10 expire August 31, 1977.

Section 13(a) of the Act provides:

“Not later than July 15, 1975, the governor shall transmit to the commissioner of education the Official Compilation of 1974 School District Market Value Data [referred to in Section 16.252, already noted] prepared by his office with all necessary adjustments and corrections which the facts warrant.”

Pursuant to subsection (b) of Section 13:

“The commissioner of education shall appoint a review panel consisting of five persons representing different areas of the state who are knowledgeable in the field of property taxation to review all questions relating to the property values reported for school districts in the official compilation and to recommend necessary adjustments based on factual evidence to the commissioner.” (Emphasis added)

To enable the Governor to conduct the study required by Section 10, the Legislature appropriated $5,000,000. For review of “the official compilation” by the panel appointed for that purpose by the Commissioner, the Legislature provided $200,000. Provisions in Section 13 of the Act for “necessary adjustments and corrections,” of the official compilation of 1974 data by the Governor and “necessary adjustments based on factual evidence to the commissioner,” were made immediately effective by the Legislature, that date being established as June 6, 1975.

For the period already referred to, the two school years beginning in 1975 and ending in 1977, the share of a school district in the state program is based upon property values for 1974, as found in the “Official Compilation of the 1974 School District Market Value Data” furnished the Commissioner of Education by the Governor. For the school years succeeding this first period, a school district’s share “is based on the value of its property for the tax year commencing in the school year two years before the school year for which the share is calculated.” Subsection (b) of Article 16.252, supra.

Thus it is evident that the official compilation for 1974, as delivered to the Commissioner by the Governor, will no longer be the basis for a district’s sharing, commencing with the school year 1977 — 78, when the value of the district’s property for 1975 becomes the base. These values are required to be reported by the district tax assessors under Article 16.256. That statute provides: “Each school district tax assessor shall report to the commissioner the full taxable value of property in the district each year. The tax assessor shall also report the assessed value and assessment level utilized for tax purposes of all property in the district.” (Emphasis added) Section (a), Article 16.256.

The State contends in this suit, and we are in agreement, that the Commissioner is not required to conduct a statewide equalization program in review of the Governor’s compilation for the year 1974, but only to determine whether specific valuations within the compilation were accurate. Appellants concede that such review of the appellant school district’s valuations was made, but complain that the Commissioner should have gone beyond that examination and should have made a study of values in the more than 1,100 school districts of the state, in addition to the adjustments and corrections made previously by the Governor’s office.

Section 13 of the Act of 1975, which amended Chapter 16 and other portions of the Education Code, sets out, as already noted, the duties of the Governor and the Commissioner with respect to the “Official Compilation of 1974 School District Market Value Data.” Under subsection (a) the Governor was directed to transmit the “Official Compilation” to the Commissioner “with all necessary adjustments and corrections which the facts warrant.” It is apparent that the Governor complied with that law and delivered the “Official Compilation” to the Commissioner by July 15, 1975, as required by Section 13, and it must be assumed that the Governor caused to be made “all necessary adjustments and corrections which the facts warrant.”

Subsection (b) and Section 13 direct the Commissioner to “appoint a review panel consisting of five persons representing different areas of the state who are knowledgeable in the field of property taxation to review all questions relating to property values reported for school districts in the official compilation and to recommend necessary adjustments based on factual evidence to the commissioner.”

Subsection (c) allows a per diem compensation of $75 for members of the reviewing panel, and subsection (d) appropriates to the Commissioner, for the biennium ending August 31, 1977, “the sum of $200,000 to carry out the provisions of this section.”

We are not persuaded by forceful argument in behalf of appellant school district that the Commissioner, acting through his appointed review panel, was under a clear statutory duty to consider questions of disparities in property tax valuations among the school districts throughout the state. Viewing the Act in its entirety, we conclude that the Commissioner and the review panel were directed to consider only questions affecting the accuracy of specific valuations within the “Official Compilation.”

Appellant school district in effect seeks to obtain a complete review and revision of valuations for all school districts in the state, even after review by the panel of the district’s valuations as reflected by the “Official Compilation.” This suit is not an administrative appeal from a decision by the Commissioner, but is a separate suit to require administrative action of the Commissioner in addition to review admittedly made with respect to valuations of appellant school district.

It is firmly established that a suit for declaratory judgment, as here, is subject to the rule of state immunity from suit without its consent, and we do not understand appellants to contend otherwise. W. D. Haden Company v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 839 (1958).

By this suit appellants seek to require the Commissioner of Education to perform certain extensive acts of review which we conclude are not required of him by the statutes upon which appellants rely. It is a suit therefore to control action of the State in review of property valuations contained in the “Official Compilation” prepared under direction of the Governor, who thereafter made “all necessary adjustments and corrections” warranted by the facts. We find no authority in the statute to compel the Commissioner and the review panel to duplicate the work already done by the Governor.

The purpose of this suit against State officials is to control action of the State and therefore cannot be maintained without consent of the Legislature. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, 152 (1960), and cases there cited.

In view of our holding that this action is a suit against the State and not maintainable in the absence of consent, we do not reach the remaining issues raised under the points of error.

The judgment of the trial court dismissing the cause is affirmed.

Affirmed.

      . Appellants are Donald H. Sheffield, Stephen T. Jordan, and Eugene Matthews, president, vice-president and secretary, respectively, of the Board of Trustees of the Carrollton-Farm-ers Branch Independent School District, and the District; appellees are the Honorable Dolph Briscoe, Governor of Texas, and Dr. M. L. Brockette, Commissioner of Education of Texas, represented here by the Attorney General.


author: SHANNON, Justice.

text:
    William Bruner CAMPBELL, Appellant, v. Laura Fenner Williams CAMPBELL, Appellee.
    No. 12550.
    Court of Civil Appeals of Texas, Austin.
    April 20, 1977.

      Robert J. Hearon, Jr., Graves, Dougherty, Hearon, Moody & Garwood, Austin, for appellant.
    Roy Q. Minton, John L. Foster, Minton, Burton & Fitzgerald, Inc., Austin, for ap-pellee.
   SHANNON, Justice.

This is an appeal from a judgment entered in a divorce suit. A threshold question concerns the finality of the judgment. We have concluded that the judgment is not final, and, as a result, we will dismiss the appeal.

In January, 1975, appellee, Laura Fenner Williams Campbell, filed suit for divorce against appellant, William Bruner Campbell, in the district court of Travis County. The parties were married in 1965 and they have two children. In March, 1975, the district court appointed appellee temporary managing conservator of the children and appointed appellant temporary possessory conservator of the children. In September, 1975, appellant, in violation of the court’s order, removed the children from Travis County and concealed their location. In October, 1975, the district court entered judgment finding appellant to be in contempt and assessing punishment.

In June, 1976, the case came on for trial. At trial time the location of appellant and the children was still unknown to the court, to appellee, and to counsel for the parties. Appellant’s counsel filed a motion for continuance based upon counsel’s inability to represent his client in his client’s absence. The district court overruled the motion.

After trial to the court, judgment was entered dissolving the marriage and awarding to appellee all of the community property and about one-half of appellant’s separate property. By the terms of the judgment appellee was appointed managing conservator of the children. The judgment provided that appellant would have no rights with respect to the children “. pending further order of this Court . . ” and that no support payments for the children were to be ordered “. . .at the present time, subject to review by this Court at such time as the Respondent brings himself personally before this Court.”

In connection with an interest in certain notes receivable awarded appellant, the judgment provided as follows:

“IT IS FURTHER ORDERED, however, with respect to the forementioned notes receivable awarded to the Respondent, that until such time as the Respondent, William Bruner Campbell, returns to the jurisdiction of this Court and submits himself to the orders of this Court, whether voluntarily or otherwise, the Petitioner, Laura Fenner Williams Campbell, shall have authority to manage and control such notes receivable for the benefit of the Respondent and the minor children of this marriage. The Petitioner is authorized to utilize such notes receivable and the income and proceeds therefrom, for the following purposes, and the following purposes only: (1) She may expend such funds for reasonable and necessary expenses in locating the minor children of this marriage, and returning the said children to the jurisdiction of this Court, (2) She may, and on request of the attorneys for the Respondent must, pay from such funds all costs and expenses necessarily incurred in the prosecution of an appeal from this judgment, and (3) She may, and on request of the attorneys for the Respondent must, pay all reasonable and necessary costs and expenses incurred in maintaining and preserving the property of the Respondent. The Petitioner shall maintain precise and accurate records of all such moneys received and expended, shall expend no funds for purposes other than those hereinabove set forth, and shall remain obligated to account for all such moneys received by her.”

To be final a judgment must determine the rights of the parties and dispose of all issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956), see Stalco, Inc. v. Zero Refrigerated Lines, Inc., 390 S.W.2d 476 (Tex.Civ.App.1965, writ ref’d). In general, when a judgment, not intrinsically interlocutory in character, is entered in a case regularly set for a conventional trial on the merits, and there is no order for the separate trial of the issues, it will be presumed for purposes of appeal that the court intended to, and did, dispose of all parties and issues. North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966); Hoover v. Barker, 507 S.W.2d 299 (Tex.Civ.App.1974, writ ref’d n. r. e.).

A judgment is interlocutory when it determines less than all issues as to all parties thereby leaving “something further to be determined and adjudicated by the court in disposing of the parties and their rights.” 4 McDonald, Texas Civil Practice, § 17.03.1 (1971). Nevertheless, the mere fact that some further proceeding in the trial court is necessary to effectuate the judgment does not always render the judgment interlocutory. Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969). In our view, the ultimate determination of whether a judgment is interlocutory depends upon whether the judgment leaves any issues remaining which require judicial examination or re-examination.

We recognize, of course, the fact that the trial court retains continuing jurisdiction over the parent-child relationship, Tex. Family Code Ann. § 11.05 (1975), does not prevent the judgment from being final. McAfee v. McAfee, 152 Tex. 156, 255 S.W.2d 185 (1953). Even so, if the judgment expressly reserves the issues of child support or property division for future determination by the court, the judgment is interlocutory. Stone v. Stone, 531 S.W.2d 850 (Tex.Civ.App.1975, no writ); Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App.1965, no writ).

The presumption of finality, announced in North East Independent School District is not applicable to the case at bar because the judgment, on its face, shows that the court reserved issues for determination at a later time. For example, the court ordered no support payments but instead reserved that determination until such time as William Bruner Campbell “. . . brings himself personally before this Court.” It is clear that such a future hearing will entail the taking of evidence with respect to the then financial circumstances of the parties and the needs of the children. Based upon that evidence, the court then will order the appropriate support. Stated another way, the express postponement of issues for later judicial determination rendered the judgment interlocutory.

This appeal, presenting no exception to the rule that interlocutory judgments are not appealable, is dismissed.

Dismissed.


author: PHILLIPS, Chief Justice.

text:
    Thomas Jerry GENTRY, Petitioner, v. Charlie Mae GENTRY, Respondent.
    No. 12559.
    Court of Civil Appeals of Texas, Austin.
    April 20, 1977.
    John H. Akin, Pearce, Smith & Akin, Austin, for petitioner.
    Bobby R. Taylor, Austin, for respondent.
   PHILLIPS, Chief Justice.

This is an application for writ of error from a default judgment taken in a divorce case. Petitioner maintains in his first point that the trial court erred in entering a default judgment because the citation with the officer’s return thereon had not been on file with the clerk of the court for the ten-day period required by Tex.R.Civ.P. 107 and 239.

We sustain the point and reverse the judgment and remand the cause for trial.

Respondent filed suit for divorce on February 11, 1976. Petitioner was served with citation by the sheriff on February 28, 1976, at Texas Department of Corrections at Huntsville, where he was incarcerated.

The return of the citation served on petitioner was filed with the clerk of the court on April 23, 1976. Judgment by default was granted respondent on the same day.

Texas R.Civ.P. 239 provides in part that a judgment may be taken by default “provided that the citation with the officer’s return thereon shall have been on file with the clerk for the length of time required by Rule 107.” Texas R.Civ.P. 107 provides in part that “No default judgment shall be granted in any cause until the citation, with the officer’s return thereon, shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.”

Since the default judgment was granted respondent on the day that the return of citation upon petitioner was filed with the clerk of the court, the majority of the Court are of the view that the judgment was granted in contravention of the provisions of Rules 239 and 107, and that the judgment must be reversed and the cause remanded.

As authority for our holding we note that, although decided on another point, Johnson v. Johnson, 476 S.W.2d 954 (Tex.Civ.App.1972, no writ), indicates that a default judgment entered in a divorce action in contravention of Rule 107, but where the trial court had jurisdiction over the person of the defendant and the subject matter of the suit (as here), is not void but is erroneous and is subject to being set aside by a direct attack such as by writ of error.

Citizens National Bank in Ennis v. Hart, 321 S.W.2d 319 (Tex.Civ.App.1959, writ ref.), although not a divorce case, holds that compliance with Rule 107 is mandatory where a default judgment was obtained in a garnishment proceeding. Also see: Woodall v. Lansford, 254 S.W.2d 540 (Tex.Civ.App.1953, no writ); First National Bank of Fabens v. Pacific Cotton Agency, 329 S.W.2d 504 (Tex.Civ.App.1959, no writ).

We cannot agree with respondent’s contention that the comments in 7 Texas Bar Journal 15 (1944) and 8 Texas Bar Journal 39 (1945) are in any way persuasive here. Those comments pertain to waiver of service and acceptance of service. Petitioner did not sign a waiver of service, nor did he agree to accept service.

The judgment is reversed and the cause is remanded for new trial.


text:
    Huelene WALKER, Individually and as President of Jamestown Inns, Inc., Appellant, v. Patricia J. RABKE, Appellee.
    No. 17817.
    Court of Civil Appeals of Texas, Fort Worth.
    April 22, 1977.

      Kelsey & Wood, R. William Wood, Den-ton, for appellant.
    Phillip 0. Vick and Roger D. Shipman, Denton, for appellee.
   OPINION

HUGHES, Justice.

Lessee, Patricia J. Rabke, sued Huelene Walker and The Jamestown Inns, Inc. for return of her apartment security deposit, $100.00 plus damages of treble the amount of the portion of the deposit wrongfully withheld under Tex.Rev.Civ.Stat.Ann. art. 5236e (Supp.1976-77), overpayment of rent, and attorneys’ fees. Defendants appealed from a judgment entered on an adverse jury verdict. We reform; as reformed the judgment is affirmed.

A jury found that Walker acted in bad faith in not returning Rabke’s $50.00 deposit; that Rabke’s rent under the lease was overpaid by $29.70; that Rabke’s reasonable attorneys’ fee was $175.00; that Rabke did not fail to take good care of Walker’s apartment and its furnishings; and that Rabke gave Walker notice of intention to vacate thirty days before the expiration of the term for which she had rented the apartment.

The trial court overruled Walker’s motion for judgment non obstante veredicto and rendered judgment for Rabke in the amount of $279.70 plus $175.00 attorneys’ fees with interest at 9% from date of judgment on both amounts.

The record reveals that Rabke leased an apartment from Walker, the president and only stockholder of The Jamestown Inns, Inc. The written lease provided for a term beginning August 22, 1974, and ending May 22, 1975. It further provided that Rabke had to give Walker thirty days’ written notice of intention to surrender premises in order to get her deposit back. The contract provided for rent of $85.00 per month, payable on the first day of each calendar month. Rabke was required to pay $29.70, and $170.00 for the first and last months’ rent in advance, as well as a $50.00 deposit. Receipts admitted into evidence reflect the payment of these amounts plus $85.00 for each month of the lease from October 1974 through April 1975, inclusive. A receipt dated 8/29/74 reflects the following entries:

Bal. Aug. 29.70

Sept. 85.00

May 85.00

Rabke testified that she called Walker’s attention to her having paid $85.00 for May although the written lease terminated May 22, 1975, saying, “‘That means I can stay until the end of May,’ and she (Walker) said, ‘Yes, I will have to remember that.’ ” Rabke testified she gave written notice on May 1, 1975, of intention to vacate the apartment on May 30, 1975. She testified she handed the notice to Walker personally. Walker denied ever receiving it. Walker asked Rabke to vacate on May 22, 1975, and she did. Walker did not return the $50.00 deposit to Rabke nor did she provide an itemized list of damages to the apartment, as required by art. 5236e. There was conflicting testimony whether Rabke furnished Walker her forwarding address, as required by art. 5236e. Walker testified Rabke did not. Rabke testified she gave Walker her permanent address when she executed the lease and also furnished an address by a letter in July 1975. Walker admitted receiving a letter from Rabke in July 1975 requesting the return of the deposit or an itemization of damages, to which she did not reply.

Walker asserts that there is no evidence and insufficient evidence to support the jury’s finding that Rabke gave thirty days’ notice of her intention to surrender the premises.

We disagree. “In deciding ‘no evidence’ points ... an appellate court must consider only the evidence and inferences tending to support the findings, and disregard all evidence to the contrary.” Commercial Standard Insurance Company v. Allred, 413 S.W.2d 910, 913 (Tex.1967). We find sufficient evidence and inferences in this case in support of the jury’s findings that Rabke gave thirty days’ notice before the expiration of the term for which she had rented the apartment.

Neither do we find that the verdict is so against the weight of all the evidence as to be clearly wrong and unjust. Twin City Fire Insurance Company v. Taylor, 505 S.W.2d 938 (Tex.Civ.App.—Tyler 1974, no writ).

We do not think that the trial court misstated the law in its instruction with Special Issue Number 1, nor do we think the trial court commented on the weight of the evidence by assuming, as Walker contends, that Walker failed to return the deposit within the specified time. The instruction was:

“. . . Under our law, a failure of a landlord to return a security deposit to a tenant within 30 days or within that time to provide a written description and itemization of deductions from, such deposit may, but not necessarily must be, considered sufficient evidence that the landlord acted in bad faith in failing to return the deposit within such time.”

We hold that the trial court’s instruction fairly paraphrases the following sections of Tex.Rev.Civ.Stat.Ann. art. 5236e:

Section 4(c)
“. . . Failure to return a security deposit within 30 days or failure to provide a written description and itemization of deductions within 30 days is prima facie evidence and a presumption that the landlord acted in bad faith.”
Section 6(a)
“. . . Notwithstanding any other provision of this Act, a landlord is not obligated to return the security deposit or furnish a written description of damages and charges until the tenant has furnished a forwarding address.”

Walker argues that the court’s instruction was defective because it did not inform the jury of the specific time from which the thirty-day period runs and in which the landlord must return the deposit or an itemized list of damages. However, it is undisputed that Walker never returned the $50.00 deposit, and we hold that the error in the instruction, if any, was harmless. Tex.R.Civ.P. 434.

We overrule Points of Error Numbers 5 and 9 in which Walker argues that the following special issue constituted a comment on the weight of the evidence:

SPECIAL ISSUE NO. 3
“What amount of money, if paid now in cash, do you find from a preponderance of the evidence would fairly compensate Patricia J. Rabke for a reasonable attorney’s fee to be paid to Phillip O. Vick for his professional services as an attorney for her in this case?
Answer by stating a sum in dollars and cents.
WE, THE JURY, ANSWER: $_”

Walker argues that asking for an answer in dollars and cents and the use of the word “professional” are comments on the weight of the evidence.

This court is authorized to reverse a judgment because of error only when we are of the opinion such error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Horn v. Atchison, Topeka and Santa Fe Railway Co., 519 S.W.2d 894 (Tex.Civ.App.—Beaumont 1975, no writ); Tex.R.Civ.P. 434.

We hold, that, in this case, the instruction, “Answer by stating a sum in dollars and cents,” is not reversible because, under Art. 5236e, the statute affords the complainant the right to recover attorneys fees in some amount, if right not waived and they otherwise prevail in the jury verdict. There was ample testimony of “professional” legal services rendered, and we therefore overrule the point complaining of the use of the word “professional.” The services of a licensed attorney in conduct of litigation are properly denominated “professional.”

Walker also complains of that portion of the judgment awarding Rabke 9% interest on the judgment, even though Rabke’s pleadings and prayer asked for only 6%. Rabke contends that this discrepancy of 3% calls for a remittitur, not a reversal. We conclude that no reversible error is shown and that the judgment should be reformed to conform to the 6% interest asked for in the pleadings. McCaghren v. Balch, 152 S.W. 680 (Tex.Civ.App.—Amarillo 1912, writ dismissed). We order that the judgment be reformed accordingly.

Walker's remaining points attack the jury’s finding that Rabke overpaid her rent under the lease by $29.70 for the month of May. Walker argues that Rabke was obligated under the lease to pay the full $85.00 for May even though the lease terminated on May 22, 1975. We overrule all the remaining points of error and hold there was ample evidence to support the jury’s answer.

Judgment reformed to provide 6% as interest to be paid; and as reformed, affirmed. Costs of appeal are taxed against appellants.