author: EVANS, Justice.

text:
    Rupert DOMINGUEZ, Individually and as Independent Executor of the Estate of John Duran, Sr., et al., Appellants, v. John G. DURAN, Jr., Individually and as next friend of Jerry Lee Duran, a minor, Appellees.
    No. 16725.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 5, 1976.
    Rehearing Denied Aug. 26, 1976.

      Maurice A. Lehmann, Houston, R. A. Stallings, Rosenberg, for appellants.
    Ragan, Russell & Rorschach; John L. Russell, Richard G. Rorschach, Houston; Pollan & Nicholson; Elbert V. Pollan, Rosenberg, for appellees.
   EVANS, Justice.

This will contest was instituted by John G. Duran, Jr. and Jerry Lee Duran, a minor, to set aside the probate of the will of their father, John Duran, Sr. on the grounds of lack of testamentary capacity and undue influence. The proponents of the will, defendants below, were Rupert Dominguez, testator’s nephew, and Fred Duran, a brother of the testator.

The case was submitted to a jury which rendered a verdict in favor of the contestants, finding both lack of testamentary capacity and undue influence. The trial court set aside the finding of undue influence and rendered judgment in favor of the contestants on the jury’s finding of lack of testamentary capacity. The proponents of the will have perfected this appeal, contending that the evidence is legally and factually insufficient to support this finding of the jury.

John Duran, Sr. died in April 1974 at 72 years of age. Under the terms of his will, which was executed on May 13, 1968, the testator left his entire estate to the proponents and disinherited the contestants who were the natural children of his marriage to Matilda Duran.

Since this is a suit to set aside the probate of a will, the burden rested upon the contestants to establish by preponderance of the evidence that the testator did not have testamentary capacity at the time the will was executed. Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454, 456 (1941).

The contestants called one medical witness, Dr. Stanley E. Thompson, a practicing physician of some 23 years’ experience, who had treated the testator on a number of occasions between October 1965 and the time of his death in 1974. Using office records and hospital records, Dr. Thompson testified that the testator had suffered cerebral thrombosis (a stroke) in September 1966; that in December 1966 the doctor had noted a personality change in the testator, who had become belligerent over the preceding few months and had difficulty getting along with his family. X-rays taken in December 1966, during the testator’s hospitalization, showed that he suffered from arteriosclerosis which, the doctor explained, causes hardening of the arteries and often precedes a stroke or heart attack. According to Dr. Thompson’s testimony, aging people frequently have what is termed chronic brain syndrome and are unable to think clearly because the blood supply to the brain is impaired. Some persons recover from this condition and some get worse. It was Dr. Thompson’s opinion that the testator’s mental condition was impaired at the time he executed his will in May 1968 and that he had suffered a gradual physical and mental deterioration from the time of his stroke to the time that he made his will. Dr. Thompson did not say just how far the testator’s mental deterioration had advanced in May 1968, but stated that, in his opinion, the testator probably would not then have known the extent and nature of his properties or understood the import of business transactions in which he might then have been engaged. In response to further questioning, Dr. Thompson stated his opinion that the testator would have been able to identify and distinguish his children from other relatives or acquaintances, but that testator would not have been able to understand business documents “to their fullest capacity.”

The proponents contend that Dr. Thompson’s testimony lacks probative force because his opinion is not supported by sufficient factual grounds. They argue that his opinion was admittedly based upon his “vague recollection” of the testator and from a review of his records and that the doctor was unable to give specific factual recollections as to the testator’s mental capacity after the incidence of the stroke. The proponents call attention to the doctor’s recorded notes in 1967 and 1968, indicating that the,testator was then “doing well,” and to the absence of any recorded entry during those years concerning the testator’s lack of mental capacity.

It is evident that Dr. Thompson was treating the testator for physical, rather than mental disorders during the period of time following his hospitalization. The doctor’s entries regarding the testator’s condition primarily had reference to the physical ailments for which he was being treated. The doctor’s observations of the testator after his stroke in 1966 tend to substantiate his testimony that the testator’s mental condition continued to deteriorate over the years. The doctor prescribed thorazine for the testator in November 1966, October 1967 and July 1968. This drug, a tranquilizer, was often used for aging people with personality changes and for those having difficulty in remembering. Dr. Thompson testified that the drug calmed the patient down and in many older people it helped clear their minds so they could think a little better.

The testimony of Dr. Thompson was admissible evidence of probative force on the issue of the testator’s mental incapacity at the time of the making of his will. Chambers v. Winn, supra. His observations made from recollection and by reference to his records constituted a sufficient factual basis for the expression of an opinion as to whether the testator was mentally capable of intelligently transacting business at the time in question. McDaniel v. Willis, 157 S.W.2d 672 (Tex.Civ.App.—San Antonio, 1941, writ ref’d).

The mother of contestants, Matilda (Duran) Pena, testified that she and the testator had married in 1949 and lived together until their separation in November or December 1967. The testator could not read or write the English or Spanish language, but he had been a successful business man. He had owned and operated his own farm, where they lived, and had also owned business property and a store in town. He was a good father, a good husband and treated his family “real nice.” Mrs. Pena testified that her husband seemed to change after his stroke; at times he was angry and at times he cried. She saw him on about five occasions after their separation and he looked “sick, real sad eyed.” He would say one thing and then in a minute or so would change it; “sometimes you could make no sense out of what he was saying or what he was doing.” It was her opinion that at the time of the execution of his will, he would not have understood its import and would not have known or understood the nature and extent of his properties or the natural objects of his bounty.

The testimony of other witnesses called by the contestants was to similar effect.

Manuel Duran, a brother of the testator, said his brother became emotionally upset after his separation and that he was “mentally deteriorating.”

Esther Rodriguez, a daughter of Matilda Pena by a prior marriage, had lived with her mother and the testator on their farm prior to the time she married and moved away. She subsequently stayed with the couple for a two-week visit in the fall of 1967, and said that on that occasion the testator was not the same person as she had previously known. He was then sick, depressed, crying and would forget things. On one occasion the testator had a gun and said he was going to kill himself; however, she was able to get the gun away from him. She testified that in earlier years the testator had talked about saving money for his two sons, stating that he had worked very hard for what he had, and “now that I have my sons this will be for them if anything happens to me.”

Joseph Balli, Jr., a step-son of the testator, testified that he had lived with his mother and the testator until September of 1967, when he was drafted into the Army. He testified that after the testator’s stroke, he became cranky, confused and forgetful; that he was quiet, sad and to himself most of the time.

Three nieces of the testator testified that they saw the testator on Thanksgiving Day 1967 and that he was crying, confused and made no sense when he talked. Their testimony indicated that his condition did not thereafter improve.

After stating their factual observations, each of the witnesses for the contestants gave the opinion that at the time of the execution of the will, the testator was not able to intelligently know and understand business transactions, the extent and nature of his property or the natural objects of his bounty.

The proponents called a number of witnesses whose testimony indicated that the testator did have testamentary capacity at the time his will was executed. There was testimony to this effect from: Charlie Flores, who had known the testator since 1939 and who had lived in a trailer house with him after his separation; Jose F. Hernandez, who had known the testator since July 1950 and had notarized his signature on a farm lease agreement in January 1969; Alvin E. Foerster, the testator’s insurance agent, who had known the testator for at least twenty years and had business discussions with him in 1967,1968 and 1969; Mrs. L. S. Spencer, who managed the nursing home where the testator stayed in 1970; Arthur Mahlmann, an appraiser for the light and power company, who had business discussions with the testator in 1967; Rein-hard Grunwald, who had sold hay to the testator in the years 1967, 1968 and 1969, and Robert Mischka, a bank officer, who had handled a bank loan for the testator in January 1969 which was subsequently paid off in 1971. There was also testimony presented from the two subscribing witnesses to the testator’s will, who stated that they observed nothing unusual about the testator’s mental state or condition at the time he executed his will and that he appeared to have mental capacity at that time.

The proponents argue that the testimony from these witnesses, whom they contend were respected and disinterested business acquaintances of the testator, positively demonstrates the testator’s mental capability at the time the will was executed, and that the testimony of the contestants’ witnesses is so against the great weight and preponderance of the credible testimony that the cause should be reversed. The proponents call attention to the fact that the testator’s will was drafted by the same attorney (deceased at the time of trial) who had represented him in his divorce action and who assisted in the preparation of the property settlement agreement with the contestants’ mother. The proponents also point to the fact that Matilda Pena accepted deeds of conveyance under the property settlement agreement and testified at the divorce hearing that the testator had made a complete listing of all of his property and he was fully capable of making a fair and equitable settlement with her. They urge, as a basis for the testator’s rationale for excluding his two children from the benefits of his will, that the older contestant had openly sided with his mother against testator in the divorce proceeding and that the younger contestant never visited his father after the divorce.

The proponents’ witnesses presented a depiction of the testator’s mental condition which is in sharp contrast to that presented by the witnesses for the contestants. The testimony presented by the proponents’ witnesses indicated the testator to be a reasonably astute business man, aware of his property, who could conduct normal business transactions after his hospitalization in 1966. The testimony of the contestants’ witnesses, on the other hand, pictured the testator as a deeply depressed and confused person who was unable to comprehend and intelligently participate in even casual conversations. It was the duty of the jury to weigh all of the testimony and to determine which evidence it believed most credible on the ultimate issue before it. The jury was given appropriate instructions as to the definition of the term “testamentary capacity”, and there was substantial testimony presented on the various components of the court’s charge. See Williford v. Masten, 521 S.W.2d 878 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.).

The proponents contend that the facts of this case compel reversal and remand for another trial under the holding of Specia v. Specia, 292 S.W.2d 818 (Tex.Civ.App.—San Antonio 1956, writ ref’d n. r. e.). In that case the jury had determined on competent testimony that the testator lacked testamentary capacity at the time he had executed his will, but the appellate court determined that the verdict was so against the overwhelming weight of the evidence as to require reversal. The opinion indicates that there was sharp dispute in the testimony as to the testator’s drinking habits, his coherence and intelligibility, but that none of the contestants’ witnesses had challenged his capacity to successfully handle his business affairs. In that case, and in the cases cited in the court’s opinion, the evidence overwhelmingly preponderated in favor of the testator’s competency at the date he executed the will.

Every citizen of this State has the right to dispose of his property by will as he sees fit, regardless of the ties of nature or relationship. Stell v. Salters, 83 S.W.2d 742 (Tex.Civ.App.—El Paso, 1935, no writ); Green v. Dickson, 208 S.W.2d 119, 124 (Tex.Civ.App.—Galveston, 1948, writ ref’d n. r. e.). It is not the duty of the jury or the court to say how property should be passed by will; their sole function is to decide whether the testator had testamentary capacity. Green v. Dickson, supra. However, the jury is entitled to consider the past relationship between the testator and his family and if the testator, without reasonable explanation, makes an unnatural disposition of his estate, the jury may consider that circumstance in weighing the evidence of his testamentary capacity. Craycroft v. Crawford, 285 S.W. 275, 278 (Tex.Com.App.1926).

In the case at bar the testator had no children other than the contestants, his natural sons. He had always indicated great love and affection for his children and had declared his intent to provide for their future wellbeing. At the time the testator executed the will in question, his son Jerry Lee Duran was only 6 years of age. There is no evidence indicating a rational motive for the testator’s act in excluding his young son from the benefits of his estate. The jury could reasonably have determined from this circumstance and the other evidence before it that the testator suffered a disordered and confused state of mind and that he lacked testamentary capacity at the time he executed the will in question.

There is evidentiary support for the jury’s verdict, and its finding of testamentary incapacity is not so against the great weight and preponderance of the evidence as to warrant a reversal of the trial court’s judgment.

The proponents have brought forward certain points of error concerning the court’s rulings on evidentiary matters and with respect to the conduct of the contestants’ counsel during the course of trial.

It is first contended that the trial court erred in permitting the contestant, John Duran, Jr., to testify that he did not strike or hit his father, because such testimony violated the Dead Man’s Statute, Article 3716, Tex.Rev.Civ.Stat.Ann. Three witnesses had previously been questioned by the proponents’ counsel as to whether a physical altercation had occurred between the testator and the contestant. Each of these witnesses testified they had no knowledge of such an incident. Thus the testimony of the contestant in question was consistent with and not controverted by other evidence in the record. If there was error in the receipt of this testimony, it was harmless error. Rule 434, Texas Rules of Civil Procedure. Guest v. Guest, 235 S.W.2d 710 (Tex.Civ.App.—Fort Worth, 1950, writ ref’d n. r. e.); Prichard v. Farmers Co-Op Soc. No. 1 of Merkel, 183 S.W.2d 240 (Tex.Civ.App.—Eastland, 1944, no writ); Priem v. Adams, 352 S.W.2d 324, 333 (Tex.Civ.App.—Austin, 1961, writ ref’d n. r. e.).

The proponents also contend that the jury’s verdict was improperly influenced by the cumulative effect of leading questions and improper remarks of the contestants’ counsel and by the erroneous receipt of certain testimony over objection of the proponents’ counsel. This court deems it unnecessary to specifically relate each of the errors of which proponents complain since it has determined that such asserted errors do not separately or collectively reflect reversible error. The trial court has considerable discretion in its rulings on these matters and this court cannot say that its rulings constitute an abuse of its discretion.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Walter H. STEPHENS, Appellant, v. FIRST BANK AND TRUST OF RICHARDSON, Appellee.
    No. 5569.
    Court of Civil Appeals of Texas, Waco.
    Aug. 5, 1976.
    Rehearing Denied Sept. 9, 1976.
    Michael R. Cooper, and Randolph P. Mundt, Flagg, Cooper, Hayner, Miller, Long & Owen, Dallas, for appellant.
    Donald A. Muncy, Fiedler & Fortescue, Richardson, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant (defendant) Stephens from summary judgment against him for $150,000. on his guaranty on a note.

Plaintiff Bank sued National Education Systems Corporation for $150,000. on a note payable by defendant Systems to plaintiff, January 2,1975; and additionally sued Dan A. Phillips on “a guaranty agreement, guaranteeing payment of the original note and any extension or renewal thereof”, and defendant Stephens on a like guaranty. Systems and Phillips filed no answer.

Defendant Stephens answered that on October 7, 1973 he accompanied defendant Phillips to the offices of plaintiff Bank for the purpose of discussing, and concluding a loan for Systems (Phillips was President of Systems); that plaintiff expressed interest in making the loan to Systems provided the loan would be guaranteed by Phillips and Stephens; that thereafter Systems and Phillips and ultimately Stephens were informed “it would be necessary for a personal loan of Phillips to the First National Bank of Waco of $50,000. to be paid off (or otherwise taken care of to the satisfaction of First National)” as a condition to the approval of the loan; that “thereafter Stephens who had agreed to guarantee the loan of plaintiff to Systems personally paid off the loan of Phillips to First National”, and plaintiff made the $150,000. loan to Systems.

Stephens alleged plaintiff as a condition precedent to making Systems the $150,000. loan “required Systems and/or its guarantor Stephens” to satisfy the indebtedness of Phillips to First National; that plaintiff Bank and First National had common controlling shareholders and were the alter-ego of one another; that the transaction was usurious as a result of paying Phillips $50,-000. debt to First National; that such usury was more than twice the maximum lawful rate, as result of which plaintiff is not entitled to recover anything.

Plaintiff took default judgment against Systems and Phillips; and moved for Summary Judgment against defendant Stephens, attaching copies of Systems’ note, Stephens’ guaranty, and affidavit of its Vice President that Systems executed and delivered the $150,000. note to plaintiff; that Stephens executed and delivered his guaranty to plaintiff; that the note was in default and though requested Systems and Stephens have not paid same.

Stephens filed controverting affidavit to plaintiff’s motion for summary judgment stating he accompanied Phillips to plaintiff Bank to conclude a loan for Systems; that plaintiff expressed interest in making the loan if the loan be guaranteed by Phillips and Stephens; and “thereafter Systems, Phillips and I were informed * * * that as a condition to approval of the loan it would be necessary for a personal loan of Phillips to the First National Bank of Waco, Texas in the approximate amount of $50,-000. to be paid off or otherwise taken care of to the satisfaction of First National.

“It was stated by the Bank that the payment of, or other disposition of Phillips’ debt to First National was a condition precedent to the Bank submitting the loan to its loan committee and a condition precedent to the approval of such loan by the loan committee.

“Thereafter I personally paid off the loan of Phillips to First National;” and the Bank made the loan to Systems.

Stephens further filed cross action against Systems and Phillips and counterclaim against plaintiff Bank on the above facts, praying for twice the amount of asserted usurious interest paid, and that Bank take nothing in its suit against him.

The trial court severed the cross action, dismissed Stephens’ counterclaim against plaintiff, granted plaintiff’s motion for summary judgment, and rendered judgment against Stephens for $150,000.

Stephens appeals on 2 points asserting the trial court erred:

1) In granting plaintiff’s motion for summary judgment because a material fact was raised by the pleadings and affidavits of Stephens concerning a usurious transaction, said issue of fact being raised in answer to plaintiff’s cause of action and as a counterclaim against plaintiff Bank.
2) In dismissing Stephens’ counterclaim because such counterclaim raised a genuine issue of fact concerning a usurious transaction, not properly disposed of by the trial court.

Plaintiff by cross point asserts the trial court erred in denying it reasonable attorney’s fees prayed for.

Plaintiff’s motion for summary judgment and the summary judgment proof made a prima facie case against defendant for the $150,000. judgment on his guaranty of Systems’ note.

Defendant Stephens plead the defense of usury, and his affidavit which plaintiff concedes is true states:

“Thereafter Systems, Phillips and I were informed * * * as a condition to the approval of the loan, it would be necessary for a personal loan of Phillips to the First National Bank of Waco * * of $50,000. to be paid off * * *.
“It was stated by the Bank that the payment * * * of Phillips’ debt to First National was a * * * condition precedent to the approval of the loan
“Thereafter I personally paid off the loan of Phillips to First National and the Bank made the loan to Systems.”

A surety or guarantor can assert any defense to a suit on a note available to the principal. 53 Tex.Jur.2d 643; and if the Bank’s requirement that Phillips’ $50,000. note be paid to First National, amounts to interest, the transaction was usurious.

A borrowers’ agreement to pay his own undisputed prior obligation to the lender, as part of the consideration for a new loan, does not render the loan usurious. Southern Trading Company v. State National Bank of Ft. Worth, er. ref., 35 Tex.Civ.App. 5, 79 S.W. 644; Dorfman v. Smith, Tex.Civ.App., NWH, 517 S.W.2d 562; 31 A.L.R.3d 769.

However where a lender, as a condition of a loan and as a consideration for making it, requires the borrower to pay the debt that another owes to the same lender, the amount of the pay-off debt is considered as interest in determining whether the loan is usurious. Laid Rite, Inc. v. Texas Industries, Inc., Tex.Civ.App., NWH, 512 S.W.2d 384.

In the case at bar, Stephens’ affidavit is that plaintiff required “a personal loan of Phillips to First National Bank of Waco * * * of $50,000. be paid off * * * as a condition precedent to approval of the loan.”

The Bank required the Phillips’ loan be paid; it did not require the borrower to pay it; it did not require Stephens to pay it.

Stephens’ answer alleged plaintiff as a condition precedent to making Systems the $150,000. loan “required Systems and/or its guarantor Stephens” to satisfy Phillips’ debt to First National, but pleadings even if sworn to cannot be regarded as summary judgment evidence. Hidalgo v. Surety Savings & Loan Assn., Tex., 462 S.W.2d 540; Lancaster v. Wynnewood State Bank, Tex.Civ.App., NWH, 470 S.W.2d 78.

Stephens’ affidavit thus raised no fact issue as to his defense of usury to plaintiff’s proven cause of action on the guaranty. Richards v. Moody, Tex.Civ.App., NRE, 422 S.W.2d 200; Moss v. Metropolitan National Bank of Houston, Tex.Civ.App., 533 S.W.2d 397.

The trial court did not err in dismissing Stephens’ counterclaim because the correct determination that no material fact issue concerning a usurious transaction existed on plaintiff’s motion for summary judgment disposes of the counterclaim.

Both appellant’s points are overruled.

Plaintiff’s cross point is overruled; Blume v. National Homes Corp., Tex., 441 S.W.2d 176.

AFFIRMED.


author: HALL, Justice.

text:
    REAGAN AND COMPANY, Appellant, v. Herbert A. TABOR, Appellee.
    No. 5571.
    Court of Civil Appeals of Texas, Waco.
    Aug. 5, 1976.
    Rehearing Denied Sept. 2, 1976.
    Ronald S. Schmidt, Moursund, Ball & Young, Inc., San Antonio, for appellant.
    Cullen Smith, and Rex Davis, Ñaman, Howell, Smith & Chase, Waco, for appel-lees.
   HALL, Justice.

Herbert A. Tabor executed a written contract with Reagan and Company in which he agreed to lease 40 pantyhose vending machines for a term of 48 months at a rental of $850.86 per month. Tabor brought this suit against Reagan and Company and Century Marketing Corporation seeking among other remedies cancellation of the lease agreement, the return of rental paid by him under the lease, and the recovery of money damages from Century upon the theory that fraudulent acts allegedly committed by Century induced him to execute the lease. Reagan and Company filed a cross-claim for damages, pleading a breach of the lease by Tabor. After a jury trial, judgment was rendered on the verdict canceling the lease, awarding Tabor a recovery of the rental paid under the lease, and decreeing that Tabor take nothing against Century and that Reagan and Company take nothing on its cross-claim against Tabor.

Only Reagan and Company appeals. Its primary contention is that the verdict does not support the judgment rescinding the lease agreement.

The machines in question were made to be placed at motels, apartment complexes, office buildings, and other similar locations for vending pantyhose as a convenience item for public purchase through the use of coins placed in the machine by the consumer. Tabor leased the machines for this purpose. He intended to personally use and service the machines as a one-man, part-time business.

Century was the supplier of the machines, and arranged for their delivery to Tabor. There is testimony showing the machines failed to function properly in several material particulars. The jury found that at the time of the execution of the lease agreement Reagan and Company and Tabor “expected the machines to be in good condition,” but that they “were not reasonably fit for the purposes for which they were leased” at the time they were delivered to Tabor. Reagan and Company does not contend these findings are not supported by the evidence nor that they conflict with other findings. Coupled with implied findings of materiality and reliance, which are supported by proof and supplied by Rule 279, Vernon’s Tex.Rules Civ.Proc., these jury findings support the judgment of rescission. This is so because one who has entered into a contract as the result of a mutual mistake of a material fact, which may include a mutual mistake as to the condition of property, may avoid the contract and recover the damages he has suffered thereby. Simon v. Allen, 497 S.W.2d 800, 804 (Tex.Civ.App.—Waco 1973, writ ref., n.r.e.); 38 Tex.Jur.2d 741, Mistake, § 4; 10 Tex.Jur.2d 356, Cancellation Of Instruments, § 35.

The jury failed to find that Tabor tendered the machines back to Reagan and Company “as soon as he discovered the machines were not in good condition.” Reagan and Company argues this “finding” defeats a judgment for Tabor. This contention was not made in Reagan and Company’s motion for new trial. It is accordingly waived. Rule 374, Vernon’s Tex.Rules Civ. Proc. In any event, a party is not required to exercise his right to rescind “as soon as” he discovers grounds therefor, but only within a reasonable time. 13 Tex.Jur.2d 607, Contracts, § 338. Whether this had been done must necessarily turn on the particular facts of each case. Super-Cold Southwest Co. v. Willis, 219 S.W.2d 144, 148 (Tex.Civ.App.—Dallas 1949, writ ref., n.r.e.). It was Reagan and Company’s burden to secure a finding that Tabor failed to seasonably act to rescind the lease. It did not do so. Rather, the record supports an implied finding that Tabor acted with reasonable diligence in this respect.

The judgment provides, “Reagan and Company is to take possession of said machines within thirty days of the date of this judgment, and upon failure to take such possession, all storage charges incurred by [Tabor] beyond that date are the liability of Reagan and Company.” This adjudication is not supported by pleading or proof. Reagan and Company’s complaint about it is sustained.

Some of Reagan and Company’s remaining complaints become immaterial in the light of our rulings, above. The others are without merit. All are overruled.

The judgment is modified by deleting the adjudication which assesses storage charges against Reagan and Company. As modified, it is affirmed.

The costs are taxed against Reagan and Company.


author: SPURLOCK, Justice.

text:
    UNITED VENTURES, INC., Appellant, v. SAMSILL BROTHERS PLASTIC CORPORATION, Appellee.
    No. 17728.
    Court of Civil Appeals of Texas, Fort Worth.
    Aug. 6, 1976.
    Rehearing Denied Sept. 10, 1976.
    Hugh O. Mussina, Dallas, for appellant.
    Law, Snakard, Brown & Gambill and Robert M. Randolph, Marvin Champlin, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This suit was brought by Samsill Brothers Plastic Corporation against United Ventures, Inc., to recover damages for breach of a contract in which United sold a portion of its business to Samsill. United answered by general denial, there was no breach of the contract, and no measure of damages is alleged. United appeals from an adverse judgment rendered on a jury verdict. It predicates this appeal on the asserted errors that no breach of contract was alleged or proved, the jury’s answers to vital issues were immaterial, no evidence and insufficient evidence points, and damages awarded are excessive.

We affirm.

United, a corporation, operated three divisions: Printers Bindery in Dallas, Graphic Bindery in Fort Worth, and B. G. Wilkes Company, a sales office for Graphic Bindery in Oklahoma City.

Samsill and United were each in the business of manufacturing and selling vinyl plastic products. United, having suffered serious losses, sold its Graphic Bindery division to Samsill Brothers on February 22, 1971, for a consideration of $50,000.00.

In summary form the property and rights purchased by Samsill consisted of (1) equipment and machinery located in Oklahoma City and furniture located in Fort Worth and Oklahoma City; (2) the right to use the names “B. G. Wilkes,” and “Graphic Bindery, Inc.,” primarily so Samsill could bill and collect directly from United’s vendees, in view of United’s precarious financial condition; (3) the right to manufacture all orders to be placed by Wilkes for stated vinyl products, including orders place by Wilkes’ office; and (4) the right to production records, sales records, and any other information needed to carry forward all past and present business accounts of United which dealt with electronically sealed vinyl and related products.

The contract also included a covenant that neither seller, its affiliates, nor its major stockholders would manufacture or sell any products (with one exception not pertinent here) then being sold by it, or similar items, within a 1,000 mile radius of Fort Worth for a period of 5 years from the closing date.

United, by its own request, retained samples, records, and job tickets from previous jobs as an aid to its salesmen in selling to prior and prospective customers. These records were an excellent aid in that respect.

In late July or early August, 1971, United approached Samsill offering to sell it the Wilkes division. Samsill countered that it felt it had already bought everything there was to buy, and that if United were to sell it again, Samsill would have no choice but to sue for breach of contract.

United had already begun negotiations with Mr. Lewis, an official of ABCO, who was familiar with the Wilkes operation. He was one of the founders of Graphic Bindery and had been president of United.

Thereafter on August 24, 1971, United sold the Wilkes operation to ABCO, including the non-exclusive right to use the B. G. Wilkes Company name. The contract for sale contained a non-competition clause in which United agreed not to sell named vinyl items in an area roughly equivalent to the 1,000 mile radius of Fort Worth in which United had contracted with Samsill not to sell. This contract also specifically sold to ABCO the job tickets and control cards kept by Wilkes.

Anticipating this lawsuit, United included an indemnification clause, specifically naming Samsill as a possible litigant over these same rights. The sale price of $25,000.00 was paid to United. The president of United testified that he believed the job tickets and control cards already belonged to Sam-sill and that in selling them to ABCO, “I probably did wrong.”

From the time of closing of this sale no further orders were received by Samsill from Wilkes. Prior thereto these orders had amounted to about $15,000.00 per month.

United urged that Samsill had not been damaged because, even though it did not receive everything it bargained for, the equipment was worth more than the entire consideration Samsill had paid. There was evidence that it was worth considerably less; but even if it were not, Samsill was damaged in the amount of the difference between what it contracted for and what it contracted for but did not receive; its “loss of the bargain.” There was ample evidence to support the jury’s finding that Samsill was damaged in the amount of $19,000.00.

The executive officer for United testified that the furnishings and office equipment sold to ABCO were worth $830.00. That contract recited that the inventory and materials had a value of $2,500.00. Samsill contended that since the Wilkes operation was sold to ABCO for $25,000.00, and since $830.00 of this amount was for office furnishings and equipment and $2,500.00 was for inventory and materials for resale, the balance of $21,670.00 represents the value of the Samsill records which were sold to ABCO. In addition to the damages described above, United placed ABCO in a position to compete effectively with Samsill, by its breach.

The jury found (1) United contracted and sold to ABCO all job tickets and control cards of its Wilkes division after February 22, 1971; (2) this act damaged Samsill; (3) after February 22, 1971, United sold and delivered to ABCO the files of order forms, invoices and samples located at the Wilkes offices; (4) this act damaged Samsill; (5) after February 22, 1971, United failed to forward to Samsill any orders received from its customers which were to be manufactured by Samsill; (6) this failure damaged Samsill; (7) Samsill was damaged in the sum of $19,000.00.

In its brief, United assigns 12 points of error. By one point, it asserts no proper measure of damages has been pleaded. By four points, it asserts the jury findings are immaterial. By five points, it asserts the jury’s findings are against the overwhelming weight and preponderance of the evidence. One point asserts the damages found are grossly excessive, and one asserts that Samsill has failed to prove breach of contract.

United contends that the jury’s answers to Issues 1 and 3 are immaterial because these acts would not constitute a breach of contract, and the answers to Issues 2 and 4 are therefore also immaterial.

The evidence clearly shows that under the contract, the records described in Issues 1 and 3 were sold to Samsill. United’s act of selling them afterwards to ABCO constituted a breach of contract which damaged Samsill.

We overrule points 4, 5, 7, 10 and 11.

Defendant’s second point asserting error because no proper measure of damages has been pleaded is overruled because it is not necessary to plead the proper measure of damages in order to recover. “All that is necessary is that the petition sufficiently allege facts establishing a cause of action from which the court can determine the proper measure of damages. If the facts establishing the cause of action are sufficiently set up in the pleadings, and if they are supported by the evidence, the measure of damages is a matter of law for the court.” 17 Tex.Jur.2d 263, Sec. 197, “Measure of damages” (1960). Beeson v. Marshall, 353 S.W.2d 234 (Tex.Civ.App., Austin, 1962, ref., n. r. e.).

We overrule point of error 2.

United asserts by its remaining points of error that the jury’s findings are against the great weight and preponderance of the evidence. We hold there is sufficient evidence to support the jury’s findings on each of these issues, and that its findings on each issue are not so against the great weight and preponderance of the evidence as to be manifestly unjust and clearly wrong. A detailed statement of the evidence pro and con on each issue, beyond the summary given at the beginning of this opinion, would extend this opinion to an unreasonable length, contrary to Rule 452, T.R.C.P., which instructs the Courts of Civil Appeals to be as brief as practicable. Jackson v. International Service Insurance Co., 450 S.W.2d 896 (Tex.Civ.App., Fort Worth, 1970, ref., n. r. e.).

Points 1, 3, 6, 8, 9, and 12 are overruled.

We have considered each point of error and severally overrule each.

Judgment affirmed.


text:
    CITY OF ARLINGTON, Texas, et al., Appellants, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.
    No. 17769.
    Court of Civil Appeals of Texas, Fort Worth.
    Aug. 6, 1976.
    Rehearing Denied Sept. 10, 1976.

      Tom Todd, City Atty., Arlington, Hutchi-son, Price & Boyle, and Rayford Price, Dallas, for appellants.
    Cantey, Hanger, Gooch, Cravens & Munn, J. A. Gooch, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from an order granting a public utility an injunction after a city whose residents it serves had denied it a rate increase. Appellee, Texas Electric Service Company (hereinafter called “TES-CO”), brought this suit to enjoin the City of Arlington, the Mayor of Arlington, and the other members of the Arlington City Council (hereinafter referred to as “the City”) from enforcing Ordinance No. 74-17 enacted by the City, effective April 1,1974. The ordinance set certain electric rates TESCO could charge its customers in Arlington.

On September 2, 1975, TESCO had petitioned all the municipalities it serves, including the City of Arlington, for a rate increase. The rate increase was approved by all of the 72 municipalities with the exception of Arlington and Grand Prairie. After the staff of the City of Arlington, including the finance director, had investigated the petition for a rate increase and after several public hearings, on December 23,1975 the City adopted a resolution denying TESCO’s request.

Thereafter, TESCO brought this suit seeking an injunction to prohibit the City from continuing to enforce said ordinance on the grounds that it does not allow TES-CO a fair rate of return on the fair value of TESCO’s property used and useful in supplying electricity to its customers in the City.

After a hearing the court overruled the City’s motion to abate and dismiss the suit and granted a temporary injunction effective February 12, 1976, in accordance with TESCO’s request. TESCO posted a bond in the sum of $2,000,000.00 to indemnify its Arlington customers in the event of an adverse decision.

At the City’s request the trial court filed an original and supplemental findings of fact and conclusions of law.

Prior to submission in this Court, the City assigned 10 points of error; after submission it assigned one additional point of error. In its brief the City states that its points of error 4 through 10, inclusive, deal with the City’s plea in abatement. They are briefed together. The eleventh point of error also deals with the City’s plea in abatement. Points of error 4 through 11 will be considered together by this Court.

The City filed a plea in abatement praying that this suit be abated and dismissed because TESCO did not furnish the City all the information necessary for it to consider a rate increase. The evidence reflects, and it is undisputed, that TESCO did furnish the City all information necessary to determine a fair rate, but that TESCO had additional information which the City did not request. The evidence further shows, without dispute, that TESCO offered to furnish the City with any information it desired. The City replied that it had all the information it desired.

Eight of the City’s eleven points of error deal with the trial court’s alleged error in denying the City’s plea in abatement. There is no statute or rule which permits an interlocutory appeal with respect to the denial of a plea in abatement.

“An interlocutory judgment or order is one made during the pendency of an action or proceeding that does not finally dispose of the case but leaves it in such a state that further action by the court is necessary in order to settle and determine the entire controversy.” 3 Tex.Jur.2d 392, Appeal & Error, § 74 (1974); Bloomfield Royalty Corp. v. Careo Investments, Inc., 435 S.W.2d 178 (Tex.Civ.App., Houston 14th Dist., 1968, writ ref., n.r.e.); State v. Cook United, Inc., 464 S.W.2d 105 (Tex.Sup.1971).

As a general rule, appeals lie only from such interlocutory orders as are specially made appealable by the rules or a statute. Beacon Oil & Refining Co. v. State, 56 S.W.2d 519 (Tex.Civ.App., Austin, 1933, no writ hist.); Witt v. Witt, 205 S.W.2d 612 (Tex.Civ.App., Fort Worth, 1947, no writ hist.).

An order overruling a plea in abatement and refusing to dismiss a cause in response to such plea is an interlocutory order. Beacon Oil & Refining Co. v. State, supra. But of course, if a plea in abatement were sustained, resulting in dismissal of the suit, disposing of all the parties and issues, a final judgment being rendered, such an order would be appealable. Witt v. Witt, supra.

The granting of a temporary injunction is an appealable order. Rule 385, T.R. C.P.

The question arising is, can the City tack an interlocutory order from which no appeal lies to the appeal of the temporary injunction from which an appeal does lie and in that manner get an appeal from the unappealable order of the trial court?

An appeal from an interlocutory order granting or refusing a temporary injunction may not be used as a vehicle for carrying other non-appealable interlocutory orders and judgments to the appellate court. Hastings Oil Co. v. Texas Co., 149 Tex. 416, 234 S.W.2d 389 (1950); Bloomfield Royalty Corp. v. Carco Investments, Inc., supra; Jernigan v. Jernigan, 467 S.W.2d 621 (Tex.Civ.App., Beaumont, 1971, writ dism.); Witt v. Witt, supra; Hammonds v. Lloyds Fire & Cas. Assur. of San Antonio, 256 S.W.2d 223 (Tex.Civ.App., San Antonio, 1953, no writ hist.).

This principle of law was applied by the Supreme Court in Johnson v. Avery, 414 S.W.2d 441 (Tex.1966), which stated: “Such court, in exercising its jurisdiction, overruled such plea in abatement, and its order in such matter, being purely interlocutory, can only be reviewed by an appellate court when a final judgment is rendered in the case.”

The attempted appeal of the court’s order overruling the plea in abatement is dismissed for want of jurisdiction.

This disposes of the City’s points of error Nos. 4 through 11.

The first, second and third points of error all deal with TESCO’s burden in the trial court to plead and prove it was entitled to the temporary injunction.

In its argument under these points the City attacks the temporary injunction as follows:

(1) Appellee’s pleadings do not show a probable right or a probable injury if an injunction is not granted.

(2) Appellee failed to meet its burden to offer some substantial and probative evidence to support its cause of action because

(a) it failed to show the fair value of its property allocable to furnishing electric service to the City of Arlington alone;

(b) it offered only hearsay evidence to prove the facts it endeavored to prove; and

(c) it failed to show the present value of its existing property in that it used the year ending December 31, 1976 as its test year.

(1) The City’s attack on the pleadings is without merit.

In very brief summary form TESCO pleaded all the necessary requisites for the granting of a temporary injunction. It pleaded that it had been deprived of its right to a fair return on the fair value of its property used and useful in the furnishing of electric service, and that thus its property was being confiscated in violation of its rights under the laws of the State of Texas, and under Art. 1, §§ 17 and 19 of the Constitution of this State. It further alleged that if the ordinance in question were enforced, TESCO would not earn a fair return on the fair value of its property used and useful for the furnishing of electricity to its customers. Such ordinance would compel TESCO to furnish electric service in Arlington, at rates which would result in confiscation of TESCO’s property.

(2)(A) The City next contends that TESCO offered only evidence pertaining to system-wide or Fort Worth division-wide data, and offered no evidence concerning the fair value of TESCO’s property used and useful in servicing its customers in Arlington.

A similar contention was rejected by the Supreme Court in the case of General Telephone Company v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385 (1956). That case cites, in support of its decision, Lone Star Gas Co. v. Texas, 304 U.S. 224, 239, 58 S.Ct. 883, 82 L.Ed. 1304 (1938), a case in which the Railroad Commission of Texas established Texas rates for gas produced in Texas and Oklahoma and sold by an integrated utility with producing properties and pipe lines both in Texas and Oklahoma. The Supreme Court held that the Commission properly considered the value of the properties in both States, and further held that, this being so, a reviewing court could not validly require the company to segregate the Oklahoma and Texas operations in order to demonstrate the Texas rates to be confiscatory. It also cites with approval the case of State v. Department of Public Utilities, 34 Wash.2d 141, 208 P.2d 882, 884, 885 (1949), for the same proposition. In that case, the rate-making authorities of Washington and Idaho met jointly in Idaho in order to fix telephone rates in two adjoining cities separated only by the state line.

See also General Telephone Co. of S. W. v. City of Garland, 509 S.W.2d 927 (Tex.Civ.App., Dallas, 1974, writ ref., n.r.e.). These decisions hold that area-wide data are acceptable for use in determining values in one part of the area. We concur.

However, even if the law required city-wide as opposed to area-wide computations, TESCO has met even that burden.

The City’s exhibit # 1, “Analysis of Electric Company Rate Request” for Fort Worth, January, 1976, allocated the share of TESCO’s property used and useful in Fort Worth at 27.77%. There was uncontradict-ed testimony by Mr. Scarth, vice president of TESCO, that Arlington consumes roughly 10% of the overall electricity produced by TESCO. Keith Reed, finance director of the City, testified it would be reasonable to allocate on a percentage basis, in the same manner as was done for TESCO’s Fort Worth customers.

The City’s contention (2)(A) as stated above is without merit.

(2)(B) The City next contends that TES-CO’s financial and accounting exhibits and the testimony based thereon are hearsay and therefore not competent evidence.

Mr. E. D. Scarth, vice president of TES-CO, testified in a dual capacity. Not only is he an expert by training and experience, but he also supervises that part of TESCO’s operation from which the questioned records emanated. Besides his degree in electrical engineering, he has been with TESCO over 26 years, and has worked for them as an engineer, transmission superintendent, commercial manager in charge of customer service and operations, division manager, vice president of engineering, research, and purchasing, and his present position, vice president in charge of division and region operations. His qualifications as an expert are beyond attack.

As for his specific knowledge about the exhibits admitted into evidence, in the position Mr. Scarth was holding at the time of trial, he had charge of all the cities and local offices within TESCO’s service area, as well as the engineering, construction, and maintenance of facilities, in addition to customer accounting, billing, and collection. Further, as an officer of the company, he exercises influence over the facilities that do not serve customers directly, such as power plants. He is eminently well qualified to testify about the records in question, being in charge of both the people who compiled the information in the exhibits and the records themselves. He testified that he was familiar with the records and how they were put together, although he had not prepared all of them personally.

When an expert witness testifies in that capacity, and his testimony is based partly on his knowledge and partly on reports made by others, it is admissible. Sutherland v. McGregor, 383 S.W.2d 248, 249 (Tex.Civ.App., Fort Worth, 1964, no writ hist.). The fact that the opinion of an expert is based on reading and experience does not render it inadmissible. Coffee v. William Marsh Rice University, 408 S.W.2d 269, 285 (Tex.Civ.App., Houston, 1966, ref., n.r.e.).

If the court had found the records inadmissible, it would not change the outcome of this case because both Mr. Scarth and Mr. McClellan, a certified public accountant whose specialty is public utilities regulatory matters, testified without objection to all the pertinent data included within the reports. Thus its admission, even if it had been error, would have been harmless error, since the pertinent data were properly before the court.

Further, where there is independent evidence to support the judgment, it will be presumed the trial judge disregarded evidence improperly received, and that any such evidence was harmless, there being no showing of prejudice. 57 Tex.Jur.2d 328, Trial, § 571 (1964).

We hold the admission of the above exhibits and testimony, if error, was harmless error.

(2)(C) The City’s remaining contention is, in effect, that it is impermissible, for rate-making purposes, to use a projected test year, the year 1976.

The City contends that not all the property upon which TESCO calculates its fair value is in existence at this time. Mr. Scarth testified that the fair value of the property of Texas Electric Service Company was $1,495,184,456.00. He then testified: “Then the only property, really, that technically isn’t in existence today that will be in service in 1976 would be the crossarms that we will buy and the poles that we will buy that may not be in our yard more than two or three months before they are actually put in service to serve the customers.” He testified that these poles and crossarms represent only an infinitesimal fraction of the TESCO total property now in existence upon which the calculations were made. They could not have a perceptible effect on the fair value of the property or fair return thereon.

In connection with this contention the City argues that TESCO is entitled to demand just compensation, and just compensation is a fair return upon the reasonable value of the property at the time it is being used for the public. It cites for its authority Fort Worth Gas Co. v. City of Fort Worth, 35 F.2d 743 (N.D.Tex.1929). This case does not support the City’s proposition. That Court specifically held: “A rate depends upon the property value at the time of the effective date of the order and for a reasonable time thereafter. The present and the future must be considered. .

“It must be determined whether the rates complained of are yielding, and will yield, over and above the amount required to pay taxes and proper operating charges, a sum sufficient to constitute just compensation for the use of the property employed in furnishing the service. Such a rate is a reasonable rate of return, and must be made on the value of the property at the time of the investigation and for a reasonable time in the immediate future.” (35 F.2d at 747) (Emphasis ours.) A projected testing of the return afforded by utility rates is not only permissible, but it has been held that such a projection must be undertaken.

In McCardle v. Indianapolis Water Co., 272 U.S. 400, 408, 47 S.Ct. 144, 147, 71 L.Ed. 316 (1926), the Supreme Court said:

“But in determining present value, consideration must be given to prices and wages prevailing at the time of the investigation; and, in the light of all the circumstances, there must be an honest and intelligent forecast as to probable price and wage levels during a reasonable period in the immediate future. In every confiscation case, the future as well as the present must be regarded. It must be determined whether the rates complained of are yielding and will yield, over and above the amounts required to pay taxes and proper operating charges, a sum sufficient to constitute just compensation for the use of the property employed to furnish the service; that is, a reasonable rate of return on the value of the property at the time of the investigation and for a reasonable time in the immediate future. S. W. Tel. Co. v. Pub. Serv. Comm., 262 U.S. 276, 287, 288 [43 S.Ct. 544, 67 L.Ed. 981]; Bluefield Co. v. Pub. Serv. Comm., 262 U.S. 679, 692 [43 S.Ct. 675, 67 L.Ed. 1176]. Cf. Board of Utility Commissioners v. New York Telephone Co., 271 U.S. 23, 31 [46 S.Ct. 363, 70 L.Ed. 808].”

The wisdom of this rule is demonstrated by the facts of this case. The record reflects that an order of the Railroad Commission of Texas dated December 17, 1975, will have the effect of severely restricting the use of gas in TESCO’s boilers. TESCO had been using natural gas exclusively to fuel its boilers to operate its generators. Foreseeing the gradual phase-out of natural gas for generating purposes, TESCO began buying coal deposits in East Texas many years ago. Now they are building generating plants in the vicinities of these coal deposits. In addition thereto, TESCO is constructing a nuclear power plant in Hood County. In order to obtain the capital necessary to effect this expensive transition, TESCO must sell preferred stocks and bonds on the open market. In order to sell them at a reasonable price or rate of interest, TESCO must show that its property is producing and will produce a fair return. On these and many other facts in the record, the wisdom of the rule announced in Fort Worth Gas Co. v. City of Fort Worth, supra, becomes evident. A rate should be fixed upon the fair value at the time of the investigation and for a reasonable time thereafter. Both the present and the immediate future must be considered.

The year 1976 is a valid test year.

Points 1, 2 and 3 are overruled.

The attempted appeal from the order overruling the plea in abatement is dismissed for want of jurisdiction. The judgment granting the temporary injunction is affirmed.


author: CHADICK, Chief Justice.

text:
    INDEPENDENT AMERICAN CONSTRUCTION CO., INC., Appellant, v. GOLD STAR DISTRIBUTORS, INC., Appellee.
    No. 8388.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 10, 1976.
    Rehearing Denied Aug. 31, 1976.
    Robert M. Greenberg, Greenberg & Bach, Dallas, for appellant.
    Gerald R. Coplin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.
   CHADICK, Chief Justice.

This is an action for damages. The court below sustained a plea in bar and entered a take nothing judgment. Understanding the issues is complicated by the fact that the appeal is from a judgment in the second of two lawsuits between the same parties over claims arising out of the same transaction and some details of each suit must be examined. The judgment of the trial court is affirmed.

I.

Appellant, Independent American Construction Company, Inc., plaintiff in the court below, filed suit against appellee, Gold Star Distributors, Inc., defendant below, on February 18, 1975, to recover damages resulting from an alleged breach of a purchase order contract between the parties and breach of warranty contained in the order, together with punitive damages incurred as a result of alleged “willful, intentional, malicious and fraudulent deception practiced upon” the construction company by the distributor. This action is hereafter referred to as the 1975 suit.

II.

The first suit between the parties, filed in 1973, cast Gold Star Distributors, Inc. as plaintiff in the trial court and Independent American Construction Company, Inc. as defendant. This action was on sworn accounts to recover the unpaid balance pleaded to be due on the sale of refrigerators. This sworn account action is hereafter referred to as the 1973 suit. Prior to judgment in the 1973 suit, the construction company filed a counter-claim therein for relief (substantially as claimed in the 1975 suit) based upon and arising out of the same refrigerator sales transaction that was the subject matter of the distributor’s 1973 suit. The judgment entered in the 1973 suit recited that the construction company had not filed an answer in accordance with Tex.R.Civ.P. 93 or 185 and rendered judgment on the distributor’s sworn account.

At the time of judgment in the 1973 suit, the trial court might have severed the trial amendment counter-claim for separate trial as an independent action under the provisions of Tex.R.Civ.P. 41 or under Tex.R. Civ.P. 174 might have entered an interlocutory order on the sworn account and set the counter-claim for separate trial then or later. Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11 (1961). The judgment entered,' however, did not purport to do either; the judgment has the characteristics of a final disposition. In North East Independent School District v. Aldridge, 400 S.W.2d 893 (Tex.1966), it is said:

“When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. A claim duly severed under Rule 41 is a ‘case’ within the meaning of the foregoing rule. The rule will be subject to the exception created by Davis v. McCray Refrigerator Sales Corporation [136 Tex. 296, 150 S.W.2d 377]; but it will apply to separate claims of the plaintiff, cross-actions and counterclaims by defendants against the plaintiff, cross-actions by defendants against other defendants and cross-actions by defendants against third-party defendants.”

The judgment entered determined all issues made by the pleadings in the 1973 suit and dissatisfaction with the judgment should have been manifest by perfection of an appeal.

III.

Under the circumstances shown by the record, the attempt to relitigate in the 1975 suit the issues tendered by the trial amendment in the 1973 suit was barred by the res judicata doctrine. Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963); Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971) and Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973).

IV.

All of appellant’s points of error have been considered and are respectfully overruled. Finding no reversible error, it becomes the duty of this Court to affirm the judgment of the trial court.

IT IS SO ORDERED.


author: PER CURIAM.

text:
    Dolly Mae Arnett ALLEN, Indiv., etc., Appellant, v. DEPARTMENT FOR HUMAN RESOURCES, Commonwealth of Kentucky, Appellee.
    No. 75-1007.
    Supreme Court of Kentucky.
    Aug. 20, 1976.

      Robert J. Jackson, Fayette County Legal Aid, Inc., Lexington, for appellant.
    J. William Hernandez, Dept, for Human Resources, Frankfort, for appellee.
   PER CURIAM.

In joint actions which were consolidated for trial and disposition, the circuit court terminated the parental rights of appellant Allen, as to three of her four children. The circuit court refused to terminate her parental rights in the instance of her eldest son. She appeals from the judgment terminating her parental rights, and the appellee, Department for Human Resources, cross appeals from the judgment refusing to terminate parental rights as to the one child. We have carefully considered the record and the evidence and have concluded that the judgment entered should be affirmed for the reasons later stated.

The Department for Human Resources sought termination of parental rights pursuant to KRS 199.600. It was the contention of the Department that the children concerned were “neglected” children within the meaning of the statute. The evidence revealed the appellant to be an emotionally unstable individual who resorted to child abuse, particularly directed at her three younger children. She was unable and unwilling to afford them affection or care. The Department, through its social workers, attempted repeatedly to aid and assist her to provide an acceptable home. We find the evidence amply demonstrated that the three children toward whom the termination of parental rights was directed were neglected within the definition of KRS 199.011(4), wherein a “neglected child” is defined as any child “who is under such improper parental care and control or guardianship as to injure or endanger the morals, health or welfare of himself or others.”

The three children concerned in the termination were two boys, the youngest of whom was seven, and a girl who was six years of age. They had been in foster homes on several occasions and returned to appellant at her request. The oldest boy, age 10, has been in foster home care on several occasions. He however, had stayed longer and oftener with appellant and evidenced a strong desire to stay with appellant. Appellant plainly manifested affection and concern for him and not for the other children.

Appellant alleges error in a prior procedure by which the children were removed from her custody and placed in the temporary care of the Department. We find no error. Appellant was present at the proceeding, was represented by counsel, and testified, in effect, at the subsequent termination hearing that she voluntarily relinquished the temporary custody of the children so she could apply for admittance to a mental hospital.

Appellant also complains that the trial court committed error when it denied her request to produce the children as witnesses. The record reveals that when the Department stipulated that the two older children desired to remain with their mother, appellant withdrew her request to produce these children as witnesses. The testimony of the two younger children could hardly have been helpful, and it is interesting to note that Ronnie, the seven-year-old boy, was terrified of his mother because of her repeated abuse. The total evidence demonstrates the wisdom of the decision of the Circuit Judge. We cannot say he abused his discretion in not requiring the two younger children to testify.

Appellant also asserts that the trial court erred by admitting the testimony of psychiatrists over her objection. She relies upon the applicability of our statutory patient-psychiatrist privilege, KRS 421.215. Appellant clearly put her mental condition in issue by the allegation in her petition to be granted custody of the children. The petition alleged “she has been under the care of a psychiatrist but is nevertheless able to provide for her children and desires to do so.” KRS 421.215(3)(c) provides that when the patient introduces his mental condition as an element of his claim, the testimony of the treating psychiatrist is admissible. Therefore, in this case the trial judge properly admitted the testimony of appellant’s psychiatrist. The testimony of the other psychiatrists who testified was admissible because there was no psychiatrist-patient relationship between them and appellant.

The oldest boy, 10½ years old, and his mother have established a loving relationship under difficult circumstances. We cannot say that the trial judge erred when he concluded that termination would be seriously detrimental to the child due to the strength of the parent-child relationship. If a child, age 10 or older, objects to termination, the objection should be carefully considered. If a child this age opposes termination, efforts to provide him a stable, permanent environment may well be defeated, and the benefits from termination are certainly not sufficiently clear in this case to justify overriding the child’s wishes. The admitted trauma to the older boy in again uprooting him against his expressed wishes is not to be lightly required. The evidence does not satisfy us that the trial judge erred in his determination. See Wald, “State Intervention on Behalf of ‘Neglected’ Children: Standards for Removal of Children from their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights.” 28 Stan. L.Rev., 623 at 696-697.

The judgment is affirmed on both the original appeal and the cross appeal.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. John M. TRIMBLE, Sr., Respondent.
    Supreme Court of Kentucky.
    Aug. 20, 1976.
    John T. Damron, Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    Joe C. Savage and Robert J. Turley, Jr., Turley, Savage & Moore, Lexington, for respondent.
   PER CURIAM.

This is a disciplinary proceeding against John M. Trimble, Sr., of the Lexington-Fa-yette County, Kentucky, Bar. Respondent was charged in a three-count information returned against him in the United States District Court for the Western District of Kentucky with the offense of failing to make United States income tax returns for the calendar years 1967, 1968 and 1969, in violation of Title 26, Section 7203, United States Code, and Section 7203, Internal Revenue Code. Each offense is a misdemeanor. Pursuant to a plea of nolo conten-dere, respondent was found guilty of count three (1969) and sentenced to imprisonment for one year.

The Kentucky Bar Association caused disciplinary proceedings to be commenced against respondent, and on September 9, 1974, a certified copy of the judgment of the United States District Court finding him guilty and fixing his punishment was filed in the office of the Clerk of the Court of Appeals of Kentucky. The proceeding was taken pursuant to the then current RCA 3.320. A rule issued from the office of the clerk and respondent answered challenging the applicability of RCA 3.320, since the offense was deemed to have been committed on April 15, 1970, and the subject rule was not adopted until July 2,1971. On December 12, 1974, the Court of Appeals entered an order remanding the matter to the Kentucky Bar Association for proceedings consistent with the rules prevailing as of April 15, 1970.

On January 29, 1975, the Kentucky Bar Association filed a new charge against respondent in which it is contended that on August 30, 1974, respondent was convicted of the offense of failing to make a federal income tax return for the calendar year 1969. It is alleged therein that the conduct of respondent in failing to file the income tax return and his criminal conviction therefor constitute unethical and/or unprofessional conduct calculated to bring the bench and bar into disrepute. Complainant has taken the position that respondent’s conviction in and of itself constitutes such unprofessional and unethical conduct which is calculated to bring the bench and bar into disrepute, and it offers no further proof to substantiate it. The respondent testified extensively in an effort to support his defense of extenuating circumstances. His high degree of competency, conduct, and ability generally as a practicing attorney of the Kentucky Bar, his unhappy family situation resulting in a divorce, and his overburdening indebtedness were established by a member of the bar, his minister, and two members of the judiciary. Likewise, these witnesses established that his conduct and conviction adversely affected the legal profession.

Respondent’s sentence has been fully satisfied by his imprisonment for 37 days. The amount of his total indebtedness on the tax claims is in dispute.

The trial committee of the Kentucky Bar Association recommended that respondent be given a private reprimand and be required to pay the costs of the proceedings. The Board of Governors, after considering the charge against respondent and reviewing the trial record which was made at the trial committee’s hearing, found respondent guilty and recommended that he be suspended from the practice of law in Kentucky for a period of nine months and be required to pay the costs of the proceedings.

Respondent argues that the charges against him should be dismissed because his conduct and subsequent conviction do not show him guilty of any conduct which would subject him to discipline under the substantive law as it existed on April 15, 1970 (RCA 3.330 or 3.130). This argument was fully considered and answered by this court, contrary to respondent’s contention, in Kentucky Bar Association v. Vincent, Ky., 537 S.W.2d 171 (1976).

Respondent further charges that Part III of the Rules of the Supreme Court of Kentucky fails to provide for procedural due process of law and denies the equal protection of the law. This charge is not directed at the procedure and proceedings which took place before the trial committee, but is directed at the proceedings before the Board of Governors and the proceedings before this court. A review of the record discloses that the respondent was afforded a due process hearing at each phase of the proceedings.

Lastly, respondent contends that if he is to be given further embarrassment by disciplinary findings, the court should follow the recommendation of the trial committee. After a review of the entire record, we concur with the finding of the Board of Governors that respondent is guilty as charged. Compassion is a virtue too often lost from sight when condemning the failings of another. Not so with this court, but we must bear in mind that, “The moving finger writes; and, having writ, moves on: Nor all your piety nor wit shall lure it back to cancel half a line nor all your tears wash out a word of it.” (Omar Khayyam).

The recommendations of the Board of Governors are accepted, except insofar as it recommends respondent’s suspension for nine months. Respondent is suspended from the practice of law for a period of six months, cf. Kentucky Bar Association v. Vincent, supra, and is ordered to pay the costs of these proceedings.

All concur.


text:
    Vincent G. DeJONGE, Petitioner, v. KENTUCKY BAR ASSOCIATION, Respondent.
    Supreme Court of Kentucky.
    Sept. 3, 1976.
   PER CURIAM.

Vincent G. DeJonge, a member of the Kentucky Bar Association, seeks review of Formal Advisory Opinion KBA E-130 issued by the Board of Governors of the Kentucky Bar Association rendered November 12, 1975. DeJonge contends that the opinion is contrary to law and the rules of ethics.

DeJonge posed this question to the committee on legal ethics: May a lawyer place a sign identifying himself as a lawyer, outdoors across the street from the building in which he has his office?

The answer of the ethics committee, approved by the Board of Governors was short and to the point, “No!”

The opinion recited the facts relating to DeJonge’s problem:

“A lawyer has his office in a building with thirty-six other offices in it. On his office door and the building directory, he is identified as a lawyer. The building is on a main street with no sidewalks or pedestrian traffic. Tenants may not place signs on the outside of the building. The lawyer wants to know if he may place a sign, two feet square with an arrow pointing toward his building.
This question is plainly answered “no” by DR-2-102(A).”
Committee on Legal Ethics s/James L. Ford, Chairman

On November 12,1975, the Board of Governors of the Kentucky Bar Association adopted the above as its formal opinion.

Disciplinary Rule 2-102(A)(3) contained in the Canons of Ethics, adopted by the Kentucky Bar Association provides: “A lawyer or law firm shall not use . office signs . . . except that the following may be used if they are in dignified form ... a sign on or near the door of the office and in the building directory identifying the law office. . . . ”

This court has reviewed the record and the contentions of the parties. It is obvious that the sign proposed by DeJonge is not “on or near” the building in which his office is located, as contemplated by DR 2-102(A)(3). DeJonge has presented no compelling reason why the opinion of the Board of Governors should not be affirmed.

Therefore, Advisory Opinion KBA E-130 approved by the Board of Governors of the Kentucky Bar Association is affirmed.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Leonard O’BRIEN, Plaintiff-Respondent, v. Mary N. WADE, Defendant-Appellant.
    No. 36920.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 17, 1976.

      Murray Stone, St. Louis, for defendant-appellant.
    Ziercher, Tzinberg, Human & Michenfelder, Gerald T. Ortbals, Clayton, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

This is the saga of the female Labrador dog named Zein. This is the third court which has considered the troubles involving Zein since 1970. In that year Leonard O’Brien filed a 2-count suit against Mary N. Wade in the Magistrate Court of St. Louis County for (1) damages for breach of contract to deliver registration papers for Zein, and (2) actual and punitive damages for fraudulent representation that Zein had been obedience- and field-trained. After one change of venue and nine continuances the case was tried, resulting in a judgment for Wade. O’Brien appealed to the circuit court. At the conclusion of the trial in that forum O’Brien dismissed Count II, received permission of the court to amend the petition by pleading breach of implied warranty of fitness of the dog for use as a retriever, and went to the jury under Instruction No. 2 on implied warranty of suitability and Instruction No. 4 on breach of contract to deliver pedigree papers. The jury found the issues for O’Brien and assessed his damages at $2,000. Wade has taken a timely appeal to this Court. She contends that the verdict is excessive; that the court erred in permitting O’Brien to recover as consequential damages the boarding fees for the dog from the date of purchase to date of trial (4½ years) because he made no effort to minimize the damages by disposing of the dog within a reasonable time after he was informed that Wade would not rescind the contract; that O’Brien, having elected to recover on breach of warranty, was entitled to judgment only for the purchase price of the dog, less its market value at the time Wade refused to take it back and return his money, plus any consequential damages for dog care for a reasonable time within which O’Brien could have disposed of Zein by destruction, sale or gift.

There was evidence from which the jury could have found these facts: In April, 1970 O’Brien, desiring to purchase a hunting dog, read this ad in the Post-Dispatch: “Labrador retriever, female, black, ready to breed, obedience trained, field trained, loves children, must sell because of sickness to [of?] owner, $300.00 to duck hunter. Post Office Box 109, Post-Dispatch.” Responding to the ad, he received Mary N. Wade’s telephone number. She told O’Brien over the telephone that the dog had complete obedience and field training; that it had been flown to New York and Canada for training at a cost of $1,100.00; that the dog had a bloodline and pedigree papers and that she would give him the papers. Relying on the newspaper ad and the telephone conversation O’Brien bought the dog on May 10, 1970, and gave Wade a check for $300. There was an express oral understanding that O’Brien was to receive the papers on the dog. O’Brien did not get a bill of sale from Wade. Arrangements were made for O’Brien to pick up Zein on May 20, at which time Wade indicated she had found the papers and they would be mailed to O’Brien. O’Brien took Zein to Innisfree Kennels at St. Charles on May 24,1970 and there arranged with Mr. Stolle, the operator, for maintenance of Zein. Mr. Stolle knew Zein, since Wade had brought Zein to Mr. Stolle on February 8, 1970 for obedience training, at which time Wade told him that Zein had been field trained. Mr. Stolle gave her obedience training for six weeks, then took her into the field for two weeks. It was his opinion that Zein had had no prior training. Zein was very shy. She would go into the water but she was slow to go into the water. Zein was not an aggressive hunting dog. Labradors have to hit the water with great eagerness.

Not having received the papers by mail O’Brien made repeated unsuccessful attempts to get in touch with Wade by telephone. Ultimately he contacted her and she promised he would get the papers. Two weeks after O’Brien bought the dog he sent Wade this telegram: “Remit register paper or check by Wednesday.” In response O’Brien received a telegram from Wade’s husband stating that his wife was out of town; that no papers would be given, no check returned, and that any annoyance to him or his children would be “severely dealt with.” When it became clear that the papers would not be forthcoming O’Brien repeatedly proposed to Wade that he bring the dog back and receive the money in return. The response was that Wade was not going to deliver the papers or return the money. After O’Brien was told that the check would not be returned he considered destroying the dog “but it was against [his] nature.” O’Brien also considered giving the dog to some family or keeping the dog himself. O’Brien left the dog at Innisfree Kennels, where it was maintained at O’Brien’s cost and expense from May 24, 1970 to date of trial beginning November 14, 1974. O’Brien never went duck hunting with Zein. O’Brien tried to sell the dog, but received no offers. Zein could have been sold for $50 without papers. Although she could have been bred her puppies would have been worthless without papers. For feed, daily exercise and medical care the kennel charged O’Brien $1.50 a day at first. At time of trial the daily fee had been raised to $2.50. O’Brien paid kennel bills as they came due.

Counting boarding and vet bills the charges for Zein totalled $3,257.25.

Dog lovers will applaud O’Brien’s tenderhearted rejection of the possibility of destroying Zein upon learning that Wade would not agree to a rescission of the contract, but the law will not allow O’Brien credit for Zein’s 4V2-year board bill. In Blair v. Hall, 201 S.W. 945 (Mo.App.1918), in an action for breach of warranty in the sale of a cow warranted to be a regular breeder but found worthless for that purpose, being a “shy breeder” and of small value in comparison for beef purposes, it was held that in such case the purchaser has the choice of remedies, to retain the animal and sue for damages, or tender it back and sue for the purchase price. Where the animal has some value the recovery, of course, must be diminished to that extent, and where the tender is refused the purchaser is entitled to recover for the keep of the animal for a reasonable length of time after discovering the breach of warranty. “On the breach of a warranty made on the sale of an animal, the expense of the animal’s keep may be recovered by the buyer up to the time the breach became definitely known, * * *. Where a tender is refused, the buyer is entitled to compensation for the keep of the animal for a reasonable time for the purpose of resale, * 77 C.J.S. Sales § 378, p. 1327. However, “[o]ne cannot voluntarily keep and use worthless property with knowledge of its being worthless and thereby multiply damages or expenses chargeable to the vendor.” Walls v. Tinsley, 187 Mo.App. 462, 173 S.W. 19, 21[5] (1915), involving a jack which was “a very poor breeder, * * * of little, if any, value for that or any other purpose.” When the purchaser discovers the uselessness of incurring expenses to keep an animal which does not live up to the warranty he may not recover for keeping the animal. Hudgings v. Burge, 194 S.W. 886, 887[7] (Mo.App.1917). These decisions, which predate the Uniform Commercial Code, Ch. 400, RSMo 1969, are consistent with the code, which provides that where the buyer rightfully rejects or justifiably revokes acceptance the buyer may cancel and recover from the seller the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided for in § 400.2-715. Incidental damages include expenses reasonably incurred in care and custody of goods rightfully rejected and any reasonable expense incident to the breach. Consequential damages include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know “and which could not reasonably be prevented * * *.”

Zein was not suitable for the intended use. Wade breached the implied warranty of suitability and the express warranty to deliver pedigree papers. Purchaser O’Brien was justified in tendering rescission. Seller Wade having refused the tender O’Brien definitely knew on May 24, 1970 that there was a breach of contract. At that time, under the Uniform Commercial Code and the foregoing decisions, O’Brien was entitled to recover the difference between the purchase price ($300) and the market value of Zein ($50) plus incidental damages for the keep of Zein for a reasonable time, say 60 days, after May 24, 1970, at the rate of $1.50 per day ($90), for a total of $340, and no more.

Wade’s other contentions on this appeal relate to the giving of Instruction No. 2 and Instruction No. 4.

Wade argues that it was error to give both No. 2 on implied warranty and No. 4 on breach of contract “when all of plaintiff’s evidence pertained only to the breach of an express bilateral contract.” She claims that only No. 4 should have been given; that there was no evidence of any implied warranty of suitability.

It is true that the case on Count I, as pleaded, was for damages for breach of an express contract to deliver to O’Brien registration papers on the dog. It is not true, as Wade claims, that “plaintiff bases his entire case on the breach of the contract by the defendant failing to deliver registration papers for the dog,” or that there was no evidence presented by the plaintiff on the question of implied warranty. O’Brien testified that he wanted a dog for hunting purposes; that he was a duck hunter “to some extent,” having gone out duck hunting four or five times with friends who had a dog, and that he then decided to buy a dog. The newspaper ad itself, in its reference to “duck hunter,” “obedience trained” and “field trained,” constituted an implied warranty that Zein was trained to retrieve ducks. In the first telephone conversation between the parties Wade told O’Brien the dog had “complete” training, both obedience training and field training, indeed “excessive training,” both in New York and Canada. O’Brien testified that the newspaper ad “mentioned to duck hunters,” and that the Wades were concerned about getting a good home for Zein “and someone who would use it for duck hunting.” There was sufficient evidence for the jury to find that there was an implied warranty that Zein was fit and suitable for duck hunting, but that she did not have the aggressive zeal to plunge into cold water to retrieve, as required of a Labrador retriever in duck hunting. All of this evidence came in without objection, and the court, at the conclusion of the trial, properly granted leave to amend the petition to conform to the evidence to allege breach of implied warranty of fitness for the purpose of duck hunting, and properly instructed on that issue.

Citing Hunt v. Sanders, 313 Mo. 169, 281 S.W. 422 (1926), and Mullins v. Sam Scism Motors, Inc., 331 S.W.2d 185 (Mo.App.1960), Wade contends that O’Brien, as the buyer of a chattel as to which an express warranty given by the seller has been breached, has no choice between suing for breach of that warranty or breach of an implied warranty; that plaintiff in such case cannot have both, because the express warranty as to the particulars included within its terms excludes an implied warranty. These cases, decided before the enactment of the Uniform Commercial Code, do not support Wade’s argument. The exclusion of an implied warranty about which they speak is an exclusion as to the particulars included within the terms of an express warranty. They are talking about express and implied warranties as to the same quality or characteristic, not as to different qualities or characteristics. An express warranty that pedigree papers will be furnished does not exclude an implied warranty that a dog is field trained for duck hunting. There is no inconsistency between the two warranties. An express warranty and an implied warranty can exist together in a contract of sale when not inconsistent. Boulware v. Victor Automobile Mfg. Co., 152 Mo.App. 567, 134 S.W. 7 (1911). An express warranty does not exclude an implied warranty about other matters, Alvin Fruit & Truck Ass’n v. Hartman, 146 Mo.App. 155, 123 S.W. 957 (1909), or matters disconnected with the express warranty. International Pavement Co. v. Smith, Beggs & Ranken Mach. Co., 17 Mo.App. 264 (1885). The Uniform Commercial Code has not abrogated but is entirely consistent with these holdings. It provides in § 400.2-317 that “Warranties whether express or implied shall be construed as consistent with each other and as cumulative * * *.” There is no inconsistency, but if there had been this implied warranty would have been saved by the Uniform Commercial Code provision that “Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.”

Accordingly, the judgment for plaintiff and against defendant is affirmed on the issue of liability, and reversed on the amount of the judgment, and the cause is remanded with directions to enter a new judgment as of November 15, 1974 in the amount of $340.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . § 400.2-711(1).

      . § 400.2-713.

      . “Your verdict must be for Plaintiff if you believe:
      “First, Defendant sold a Labrador Retriever dog to Plaintiff, and
      “Second, the Defendant knew or should have known by using ordinary care of the use for which Plaintiff purchased the Labrador Retriever dog, and
      “Third, Plaintiff reasonably relied upon Defendant’s judgment as to the suitability of the Labrador Retriever dog for such use, and
      “Fourth, the Labrador Retriever dog was not suitable for such use, and
      “Fifth, as a direct result Plaintiff was damaged.” (MAI 25.03)

      .“Your verdict must be for Plaintiff if you believe:
      “First, Defendant did not deliver the pedigree papers of the Labrador Retriever dog to Plaintiff, and
      “Second, because of such failure, Defendant’s contract obligations were not substantially performed, and
      “Third, Plaintiff was thereby damaged.” (MAI 26.02)


author: McMILLIAN, Judge.

text:
    Albert Smith JACKSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36965.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 17, 1976.

      Scott Richardson, St. Louis, for movant-appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Albert Smith Jackson, movant-appellant, appeals from an order of the circuit court of the City of St. Louis denying his motion for post-conviction relief. We affirm.

In May of 1965, movant entered pleas of guilty to two (2) charges of possession of narcotics and one (1) charge of operating a motor vehicle without the owner’s consent. Sentencing was deferred until September of that year. On September 14, 1965, he plead guilty to two additional felony charges involving drug possession and was sentenced on each of the five charges to a term of three (3) years with the sentences to run concurrently. After completing these sentences, movant was arrested for assault with intent to kill with malice aforethought. He was convicted in a jury trial. The state pleaded and proved the prior convictions and the court sentenced movant to a term of twenty-three (23) years imprisonment. On appeal, the conviction was affirmed. Movant then filed a motion pursuant to Rule 27.26, which was denied. The denial was affirmed in Jackson v. State, 465 S.W.2d 642 (Mo.1971).

Movant initiated the present action as another motion under Rule 27.26, claiming that the twenty-three (23) year sentence imposed by the trial judge violated his constitutional rights. The basis for this claim was an assertion that the five prior convictions were induced and coerced by promises from movant’s former attorney, the circuit attorney and the trial judge. Movant alleged that just prior to the pleas and sentencing of September 14, 1965, he was promised placement in a drug treatment program. He argued that since the original pleas had been induced and coerced, they should not be the basis for sentencing him under the second offender act. The circuit court held an evidentiary hearing on the motion at which movant and his former attorney testified. The state moved to dismiss the motion, arguing that a motion under Rule 27.26 was not the proper way to challenge these past judgments. The circuit court exercised its discretion, choosing to overrule the state’s motion and to treat movant’s motion as an application for a writ of error coram nobis. The court then denied the motion, finding that movant had failed to prove his allegations.

On this appeal movant raises two issues: that the trial court’s finding that movant was not deprived or coerced into entering any of his pleas of guilty by an unfulfilled promise to allow him to enter a drug program, and that movant entered each of his pleas voluntarily and understood the nature of each charge against him is clearly erroneous; and that the court erred in overruling appellant’s assertion of the attorney-client privilege and in ordering Mr. Fred Switzer to testify to privileged communications.

At the outset we note that the circuit court was correct in construing mov-ant’s motion as an application for writ of error coram nobis as this is the appropriate remedy for attacking a sentence already served when the movant can demonstrate that he is suffering from present adverse legal circumstances as a result of the judgment and sentence. Laster v. State, 461 S.W.2d 839, 840 (Mo.1971) and Deckard v. State, 492 S.W.2d 400, 402 (Mo.App.1973). A writ of error coram nobis is a civil action, Peterson v. State, 476 S.W.2d 608, 611 (Mo.1972), which lies from some unknown fact, going to the right of the court to proceed, which entirely defeats the power of the court to attain a valid result in the proceeding, State v. Campbell, 307 S.W.2d 486, 489 (Mo.1957), and which fact was, at the time of trial, unknown to the party seeking relief, and to the court. Howard v. State, 493 S.W.2d 14, 19 (Mo.App.1973). The right to relief under a writ of coram nobis is not absolute. Nor is the writ allowed as of course or as a matter of right. Blodgett v. State, 245 S.W.2d 839, 843 (Mo.1952). The burden of proof is on the movant to prove his case by a preponderance of the evidence. State v. Davis, 438 S.W.2d 232, 234 (Mo.1969) and Howard v. State, 493 S.W.2d 14, 19 (Mo.App.1973). Because this is a court-tried matter, our appellate review is as in suits of an equitable nature as found in Rule 73.01. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.Banc 1976), construed Rule 73.01 “to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, . Cautioning us that a reversal of a decree or judgment on the ground that it is against the weight of the evidence be done only when there was a firm belief that the decree or judgment was wrong.

In its conclusions of law the circuit court noted that there had been a period of nine or ten years which passed between the sentencing and this current complaint by the movant. The court stated that this delay in bringing the complaint to the attention of the court might be enough, alone, to justify a denial of a hearing on the motion. The circumstances which movant complains of have not, in the past, been held in this state to justify relief by way of a writ of error coram nobis. Because the writ lies to correct only errors of fact, which if they had been before the court, would have prevented the adjudication, it has been held not to lie in a criminal case where the applicant knew of the fact complained of at or before the time of trial. Therefore, it does not lie to set aside a conviction on a plea of guilty procured by coercion and duress as this fact was known at the time of the plea and should have been brought to the attention of the trial court or another court at that time. Dusenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94 (Banc 1930); State ex rel. Orr v. Latshaw, 291 Mo. 592, 237 S.W. 770, 772 (Banc 1922) and Griggs v. Venerable Sister Mary Help of Christians, 238 S.W.2d 8, 15 (Mo.App.1951). Because it does not vary the result of our decision, we now consider movant’s points on appeal.

In his first point of error, movant argues that the findings of fact by the trial court were clearly erroneous. Movant contends that the evidence presented on his behalf satisfied the burden of proof which he carried and warranted a granting of relief. Movant recognizes that the trial court was not required to believe his testimony, State v. Hurtt, 509 S.W.2d 14, 16 (Mo.1974); but contends that his evidence was largely unrefuted. Movant’s testimony was that on September 14, 1965, he and his attorney, Fred Switzer III, met with Judge James Nangle in chambers and that he was promised to be placed in a federal drug program in Lexington, Kentucky, in return for his pleas of guilty. Respondent called Mr. Switzer who testified that although he had some difficulty in remembering the details of the case, he did not remember either the circuit attorney or Judge Nangle making any such representation to the movant. He did recall making out an application with movant for a federal program in Fort Worth, Texas on the day after the sentencing. We find that there was substantial evidence to support the trial court’s finding of fact that movant failed to establish that unfulfilled promises induced and coerced his pleas of guilty. We also note that the meeting which movant claims culminated in a deal was stated by him to have taken place in September of 1965, almost four months after he entered his pleas of guilty on three of the five felonies. We find it difficult to imagine how any offer made in September could have affected the volun-tariness of the pleas entered on May 26, 1965.

Movant’s second issue on appeal is that the court erred in overruling his assertion of the attorney-client privilege and in ordering Mr. Switzer to testify to privileged communications. We find no merit in this contention. The communications which movant sought to keep Mr. Switzer from testifying to were alleged, by movant, to have been made in the presence of a third party, Judge Nangle, and therefore, there could have been no expectation of private, privileged communication. Bashor v. Turpin, 506 S.W.2d 412, 421-22 (Mo.1974) and Wahl v. Cunningham, 320 Mo. 57, 6 S.W.2d 576, 586 (Banc 1928). We also base our conclusion on this issue on the ground put forth by the trial court; that is, movant waived the attorney-client privilege (if it existed) by raising the issue of ineffective assistance of counsel. Hand v. State, 447 S.W.2d 529, 531 (Mo.1969) and Veneri v. State, 474 S.W.2d 833, 840 (Mo.1971).

In summary, we find that the trial court’s judgment neither lacked substantial evidence to support it nor was it against the weight of the evidence. Nor do we have a firm belief that the judgment was wrong.

Accordingly, judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.