author: CLAUDE WILLIAMS, Chief Justice.

text:
    T. L. JEFFREY, a/k/a T. L. Jeffries, Appellant, v. LARRY PLOTNICK CO., INC., Appellee.
    No. 18697.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 6, 1975.

      Jerry W. Biesel, Dallas, for appellant.
    Robert G. Moss, H. Robert Powell, Goldberg & Alexander, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

T. L. Jeffrey appeals from a summary judgment rendered against him on a sworn account. We affirm.

Larry Plotnick Co., Inc. brought this action against Jeffrey as a suit upon a sworn account for the sale of merchandise, in accordance with Tex.R.Civ.P. 185. In his verified second amended original answer, Jeffrey asserted (1) a general denial, (2) an allegation that the “account sued on is not just and true in whole or in part,” (3) a denial that the sum sued for is reasonable or customary and usual, (4) a claim of accord and satisfaction by prior payment on the account, and (5) a claim for an offset in the amount of $1,351.53 because merchandise sold was allegedly defective. No depositions were taken. Various interrogatories and requests for admissions were served upon defendant by plaintiff, and defendant filed answers thereto. On February 18, 1975, plaintiff filed its motion for summary judgment, supported by an affidavit of plaintiff and by other affidavits evidencing the delivery of merchandise to defendant. In support of the motion, plaintiff also filed documentary exhibits, including freight bills, way bills and invoices. Defendant presented no summary-judgment evidence in opposition to plaintiff’s motion and did not appear at the hearing on the motion. The trial court granted plaintiff’s motion for summary judgment.

Jeffrey contends that the trial court erred in granting the motion because the pleadings, as well as the interrogatories and requests for admissions, show the existence of genuine issues of fact which preclude the granting of summary judgment. We overrule this contention for several reasons.

Jeffrey’s denial of Plotnick’s sworn account fails to comply with the strict requirements of Tex.R.Civ.P. 185 and 93(k). Tex.R.Civ.P. 185, as amended January 1,1971, expressly provides that a sworn account shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial, file a written denial, under oath, “state that each and every item is not just or true, or that some specified item or items are not just and true. . . ” Tex.R.Civ.P. 93(k), amended January 1, 1976, contains the same requirements.

Jeffrey’s answer stated: “The account sued on is not just and true in whole or in part.” It is obvious that Jeffrey’s answer does not satisfy rule 185 or rule 93(k). In several cases where the wording of an answer was almost identical to that of the answer here, the adequacy of the pleading has bfeen discussed. It has been repeatedly held that the language of rule 185 must be strictly followed and that the failure to file a conforming answer is fatal. Youngblood v. Central Soya Co., 522 S.W.2d 277 (Tex.Civ.App.—Fort Worth 1975, no writ); Goodman v. Art Reproductions Corp., 502 S.W.2d 592, 593 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.); McDonald v. Newlywed’s, Inc., 483 S.W.2d 334, 337 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e.); Solar v. Petersson, 481 S.W.2d 212, 215 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ); Duncan v. Butterowe, Inc., 474 S.W.2d 619, 620 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ). Thus, Jeffrey is precluded, by failing to file a proper denial, from denying that he owes the account sued upon. Space City Construction Co. v. Gifford-Hill & Co., 468 S.W.2d 897 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ); Collins v. Kent-Coffey Manufacturing Co., 380 S.W.2d 59 (Tex.Civ.App.—Eastland 1964, writ ref’d).

In oral argument before this court, Jeffrey contended that Plotnick cannot rely upon the defect in the answer because the defect was not asserted by Plotnick as a ground for the granting of summary judgment. We need not pass upon this contention because the motion for summary judgment contained adequate grounds to support the summary judgment, regardless of the question of defect in pleading. Plaintiff asserted sufficient grounds in the motion for summary judgment and supported the motion with adequate summary-judgment proof. The summary-judgment evidence included affidavits from the shipper, freight bills and invoices. The evidence shows order and delivery to appellant, as well as reasonableness of price. Jeffrey tendered no summary-judgment evidence. The motion was, therefore, properly granted. Having failed to show the existence of any fact issue, Jeffrey cannot now complain of the judgment. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Gulf Colorado & S. F. Ry. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1958).

Jeffrey’s pleas of accord and satisfaction and failure of consideration will not alone defeat the motion for summary judgment since such judgment will not be frustrated by the mere pleading of defenses by way of confession and avoidance. Solar v. Petersson, 481 S.W.2d 212 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ); King v. United Distributing of Texas, Inc., 463 S.W.2d 456 (Tex.Civ.App.—Dallas 1971, no writ). Pleadings, even if sworn to, do not constitute summary-judgment proof. Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540 (Tex.1971); Rausheck v. Empire Life Insurance Co., 507 S.W.2d 337 (Tex.Civ.App.—Texarkana 1974, writ ref’d n. r. e.); Pickering v. First Greenville National Bank, 495 S.W.2d 16 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.).

Jeffrey’s contention that his answers to the interrogatories and requests for admissions are sufficient to raise issues of fact to defeat the motion for summary judgment is without merit. Answers to requests for admissions and interrogatories can be used only against the party filing the answers. Sympson v. Mor-Win Products, Inc., 501 S.W.2d 362 (Tex.Civ.App.—Fort Worth 1973, no writ) and Sprouse v. Texas Employers’ Insurance Ass’n, 459 S.W.2d 216, 220 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.).

We hold that plaintiff Plotnick has fully and completely established its cause of action by competent summary-judgment evidence, as a matter of law; therefore, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: GUITTARD, Justice.

license: Public Domain

text:
    Sarah Louise COLE, Appellant, v. Charles N. COLE, Appellee.
    No. 18700.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 4, 1975.
    Rehearing Denied Dec. 31, 1975.

      R. W. (Bill) Glenn, Plano, for appellant.
    Gerald R. Coplin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.
   GUITTARD, Justice.

Petitioner Sarah Louise Cole complains of the property division in a decree granting her a divorce from respondent Charles N. Cole. She asserts that the trial judge abused his discretion in failing to take into consideration her needs, her low earning capacity as compared with that of respondent, and the income tax liability which she may have as a result of substantial income from his earnings during the last two years of the marriage. We agree, and we remand the cause for a new trial on the property issue.

The evidence shows that the parties had been married approximately ten years. Respondent is a successful salesman. His annual earnings, which were approximately $18,000 before the marriage, increased to well over $100,000 during the marriage. Petitioner was employed before the marriage as membership manager of the Atlanta Chamber of Commerce at a salary of $8,000 per year. She worked as a secretary in the early years of the marriage, but had not been regularly employed for several years at the time of separation in May 1974. After separation she worked as a sales agent for a real estate firm, but had realized no income from that source at the time of trial in November 1974. She testified that she thought she could probably earn $700 to $800 per month as an executive secretary although she was not qualified as a stenographer. However, she said that her health problems would require continued medical care and might impair her employa-bility.

During the marriage the parties accumulated an estate valued at more than $200,-000, most of which was community property. It consisted of a residence and twelve acres of land with furnishings and numerous art objects, several vehicles, a motor home, corporate stocks valued at more than $10,000, cash values of life insurance policies of almost that amount, a “holdback account” held by respondent’s employer estimated at $21,295, and the sum of $48,492 in cash in the hands of a receiver appointed by the court to receive and disburse community funds pending the suit.

The properties awarded to petitioner include the residence and six acres of land. This property had an indebtedness against it of $33,000, with monthly payments at $388 per month. Petitioner testified that she had no income out of which to make these payments or to discharge her share of income tax liability.

Although petitioner complains that the trial judge abused his discretion in making an unequal division of the property in respondent’s favor, we are unable to verify from the record the value figures on which this complaint is based. We conclude from our study of the evidence that the judge, without finding specific values for all the various items of property, attempted to make a substantially equal division.

Petitioner’s principal complaint is that in dividing the property the court failed to take into account her needs, her comparatively low earning capacity and her probable income tax liability for the years 1973 and 1974. The record concerning income tax liability is unsatisfactory. At the time of the judgment no final tax return had been filed for either year and no net earnings were established which would indicate the ultimate tax liability. For 1973, respondent filed a separate return for his part of the tax liability and claimed a refund of $9,000 because of withholding and previous tax payments, although he admitted in his testimony that the return would have to be amended because of at least an additional $88,000 in income. Respondent attempted to explain that this additional income might be reported for 1973 as income of a family corporation which the parties owned as community property and into which some of respondent’s sales commissions had been paid, although he had actually drawn the money out of the corporation. In any event, the record shows that a substantial additional tax liability would ultimately exist because of this additional income, and, presumably, it would fall on the parties equally.

For 1974 no tax return had been filed, and although the record fails to show the amount of his net earnings for that year up until the date of the decree, there is evidence that they were substantial. Petitioner estimated that respondent’s gross commissions for 1974 to be $160,000 to $170,000 and testified that in some months his commissions had run as high as $40,000. These figures, she said, did not include his profits from sales of his samples. Petitioner also testified that from January 1 to January 30, 1974, respondent had drawn as much as $125,000 from the family corporation. Respondent testified that his income was not as great in 1974 because he had lost one of his principal accounts. He admitted, however, that after June 9, 1974, he had received $36,000 in addition to other income paid to the corporation and to the receiver. His counsel stated to the court that the corporation had received $125,000, and the receiver’s report lists among the receipts two amounts aggregating $60,000 received from respondent’s employer. The evidence does not show the amount of deductions or credits affecting tax liability, except that respondent testified that he owed over $12,-000 in business expenses and petitioner testified that she knew of one quarterly tax payment of $6,000.

The judge announced at the beginning of the hearing that he would not consider income tax liability as a factor in dividing the property and would let each party be responsible for his or her own outstanding tax obligations because he did not regard taxes as a community debt and he did not think the court should act as a collector for the Internal Revenue Service. Accordingly, the decree makes no mention of tax liability, and leaves each party with an undetermined liability for income taxes due for 1973 and 1974. The judge declined to make any findings of fact concerning the tax liability and also declined petitioner’s request for findings bearing on the earning capacities of the parties. Thus the record indicates that he did not consider these matters in dividing the property.

It is true that a tax is technically not a debt and that the court has no power to relieve either party of personal liability to the taxing authority. Brooks v. Brooks, 515 S.W.2d 730, 732 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.). Nevertheless, in dividing the property on divorce, the court may take the tax liability into consideration and may even require one party to assume the other’s liability for taxes or require reimbursement for taxes paid. Gaulding v. Gaulding, 256 S.W.2d 684, 688 (Tex.Civ.App.—Dallas 1953, no writ).

We cannot escape the conclusion that in the circumstances shown here the judge should have considered the probable tax liability and petitioner’s lack of resources to discharge it. Tex.Family Code Ann. § 3.63 (Vernon 1975) requires the court to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party.” This language does not mandate an equal division when the circumstances of the parties are unequal. Rather, it suggests that the division should be made on consideration of the parties’ differing circumstances. In numerous cases the courts have held that the future needs of the wife and her lack of earning capacity are proper factors to be considered in dividing the property. Waggener v. Waggener, 460 S.W.2d 251 (Tex.Civ.App.—Dallas 1970, no writ); Duncan v. Duncan, 374 S.W.2d 800 (Tex.Civ.App.—Eastland 1964, no writ); and see Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923). Although we have found no cases holding that a trial judge abuses his discretion in failing to make an unequal division when these factors are present, we hold that if the disparity in earning capacity is as great as it is here, so as to leave the wife with substantial liabilities which she cannot discharge out of her income, while the husband has no comparable burden, the court should award her more than an equal share of the community estate.

In this particular case, as in many marriages, the wife abandoned her career and cast her lot with that of her husband. While he was increasing his earning capacity many times, she was maintaining the home and helping him in his business. The community-property system is based on the assumption that the husband’s earnings are not his alone, but are produced by the spouses’ joint efforts, and thus should be shared by them equally. The same principle applies, to some extent, to his earning capacity which, presumably, she helped him to develop. Upon termination of the marriage, his earning capacity will continue at a high level, while she must return to the job market to resume her career where she left off more than ten years earlier. We hold that it is manifestly unjust and unfair to allot to petitioner roughly half of the common property and leave her to support herself as best she can and also to pay half of whatever tax liability may remain because of his comparatively high earnings preceding the divorce. Accordingly, we remand the cause to the trial court with instructions to consider these circumstances in making a division of the property. On further hearing, the parties will have an opportunity to present definite evidence of the probable income tax liability, and the court, if it finds such liability to be substantial, should either compensate her by a greater share of the property or make some other order which would put the greater burden of the tax liability on respondent.

Petitioner’s second point complains of the trial court’s failure to require respondent to pay all of petitioner’s attorney’s fee rather than the one-half of such fee which the decree provides. The court set the fee at $5,040, rendered judgment against respondent for one-half of it, and directed the other half to be paid out of community funds in the hands of the receiver. In effect, respondent was required to pay three-quarters of the fee of petitioner’s attorney as well as the fee of his own attorney. This ruling does not in itself show an abuse of discretion. The allowance of an attorney’s fee is a matter to be considered by the court in dividing the property. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1005 (1950); Braswell v. Braswell, 476 S.W.2d 444 (Tex.Civ.App.—Waco 1972, writ dism’d). Accordingly, on remand we direct the trial court to consider the fee of petitioner’s attorney among the other items in dividing the community property.

Insofar as the decree of the trial court divides the estate of the parties, the judgment is reversed and remanded for new trial in accordance with the instructions in this opinion. Otherwise, the decree of the trial court is affirmed.


text:
    Margie GRAVES et al., Appellants, v. The CITY OF DALLAS et al., Appellees.
    No. 18706.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 4, 1975.
    Rehearing Denied Dec. 31, 1975.

      Michael M. Daniel, Dallas Legal Services Foundation, Dallas, for appellants.
    Alex Bickley, City Atty., Joseph G. Wer-ner, Asst. City Atty., Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Margie Graves and four other citizens of the City of Dallas brought this action against the City of Dallas, the City Council, the individual council members, the City Manager, the Civil Service Board of Dallas and the individual board members seeking a writ of mandamus requiring the Civil Service Board to accept and process written charges of misconduct against police officers pursuant to the provisions of chapter XVI, section 15 of the Charter of the City of Dallas. In the alternative, plaintiffs sought a declaratory judgment to interpret and construe chapter XVI, section 15 of the Dallas City Charter with reference to whether it is in conflict with chapter XII, section 4 of the Dallas City Charter or with Tex.Rev.Civ.Stat.Ann. art. 6252-20 (Vernon 1970). The district court rendered judgment denying the writ of mandamus and refusing plaintiffs’ request for declaratory judgment. We reverse and render.

Appellants contend that the trial court erred, as a matter of law, in not granting a writ of mandamus against the Civil Service Board based upon the provisions of chapter XVI, section 15 of the Charter of the City of Dallas, which provides:

Three (3) or more citizens of this city shall have the right to prefer written charges of misconduct before the civil service board against any officer or employee in the classified service list. The accused shall be given a reasonable notice to appear before the board and explain such charges. If the board is of the opinion that the said charges are meritorious, then it shall be the duty of the said board to file charges as preferred against such officer or employee by the said citizens with the trial board; and, if demanded by the said citizens a trial of the accused upon said charges shall be had, as in other cases of trials before said board, and the judgment of said trial board shall be final in all such matters.

The facts are stipulated. On or about March 4, 1974, appellants presented written charges of misconduct to the Civil Service Board against certain officers of the Dallas Police Department. The Civil Service Board accepted the written charges as properly filed. On or about April 2, 1974, the Civil Service Board reversed its previous decision and returned the written charges to appellants stating that it was acting on the advice of the City Attorney. The Civil Service Board continues to refuse to accept the charges and to determine whether they are meritorious. On June 10, 1974, appellants requested that the Dallas City Council order the Civil Service Board to accept the written charges of misconduct. The Council referred the request to its Public Safety Committee; that committee refused to order the Civil Service Board to accept the charges. This suit was then filed, and the case was submitted to the trial court on the facts set forth above.

The issue is whether appellants, as citizens of the City of Dallas, have the right to compel the Civil Service Board to accept complaints against police officers and to determine whether the charges are meritorious. We need not consider whether the complaints brought by appellants have merit.

In appropriate cases mandamus may lie to compel action by administrative boards, including civil service commissions. However, this equitable remedy is not available where there is any other adequate remedy. Hogue v. Baker, 92 Tex. 58, 61, 45 S.W. 1004 (1898); Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 829 (1961). Relying upon this rule, appellees argue that the City of Dallas has established other procedures adequate for accepting, processing, investigating and acting upon complaints against police officers and that the Civil Service Board does not have the duty or the authority to accept and process appellants’ complaints of misconduct. They argue specifically that appellants had the alternative remedy of prosecuting the police officers for, among other things, assault and battery, false arrest, murder, criminal negligence, homicide, terroristic threats, and excessive use of force. In addition, appellees contend that the Charter of the City of Dallas describes, in chapter III, sections 12 and 18, an administrative remedy. We do not agree. These sections of the City Charter vest investigative powers in the City Council and the City Manager to inquire into the conduct and affairs of any department or office of the City. The only relief sought by appellants is that the Civil Service Board be compelled to file the complaints and to determine the merits thereof. None of the alternative remedies proposed by appellees would result in appellants receiving the specific relief they request. A writ of mandamus is, therefore, a proper remedy to require the Civil Service Board to perform its purely ministerial duty. City Commission v. Whatley, 366 S.W.2d 620, 622 (Tex.Civ.App.—Amarillo 1963, no writ); Kelly v. Industrial Accident Board, 358 S.W.2d 874, 878 (Tex.Civ.App.—Austin 1962, writ ref’d).

Appellees’ contention that the Civil Service Board does not have the duty or the authority to process complaints of misconduct against police officers is without merit. The parties have stipulated that chapter XVI, section 15 has been used by citizens to bring charges of misconduct against police officers in the past, and appellees’ original answer admits that the accepting of written complaints against police officers is a discretionary function of the Civil Service Board. Furthermore, the language of section 15 that “citizens of this city shall have the right to prefer written charges” is mandatory. [Emphasis added.] This language clearly creates a duty on the part of the Civil Service Board to receive written charges and to exercise the discretion which it has under this section of the City Charter. Of course, we do not direct how that discretion should be exercised.

Appellees argue, finally, that chapter XVI, section 15 of the City Charter conflicts with Tex.Rev.Civ.Stat.Ann. art. 6252-20 (Vernon 1970) because by virtue of article 6252-20 complaints against police officers may be made only to the Chief of Police. Since section 15 allows complaints be made to one other than the Chief of Police, appellees argue that it is contrary to state law and, therefore, is void. Article 6252-20 states:

In order that a complaint against a law enforcement officer of the State of Texas, including but not limited to officers of the Department of Public Safety and the Liquor Control Board, or against a fireman or policeman may be considered by the head of a state agency or by a chief or head of a fire department or police department . . . the complaint must be placed in writing and signed by the person making the complaint. A copy of the signed complaint must be presented to the affected officer or employee within a reasonable amount of time after the complaint is filed and before any disciplinary action may be taken against the affected employee.

We do not find article 6252-20 to be in conflict in any respect with the provisions of the Charter of the City of Dallas. This article does not state or imply that a complaint to the Chief of Police is the sole avenue by which a complaint against a police officer may be processed.

Appellees’ contention that the Charter provisions of chapter III, section 15 and chapter XII, section 4 conflict with the authority vested in the Civil Service Board pursuant to chapter XVI, section 15 is likewise without merit. An examination of chapter XII, section 4 reveals that the Chief of Police is given the exclusive right to suspend police officers and that an officer may appeal the suspension to the City Manager and ultimately to a trial board or hearing officer. Chapter III, section 15 expressly recognizes the right of the City Council and its committees to inquire into matters of appointment and removal from employment and denies the Council only the right to dictate appointments or removals by the City Manager. Chapter XVI, section 15 does not grant the Civil Service Board authority to suspend officers, but only vests in the Board the right and the duty to inquire into charges of misconduct to determine whether they merit further investigation. If the complaint is deemed meritorious, then the Board has the further duty to file charges with the trial board set up by other provisions of the Charter:

On the record before us, we hold that it was clearly the duty of the Civil Service Board to receive and accept the charges presented by appellants and to determine whether the charges were meritorious.

The judgment of the trial court is reversed and judgment is rendered that the Civil Service Board of the City of Dallas receive and file the complaints tendered by appellants against certain police officers of the City of Dallas and proceed to determine whether the charges are meritorious. We assume that the Civil Service Board will comply with this order, but if it does not, within ten days after this order becomes final, a writ of mandamus will issue to enforce compliance with this order.

Reversed and rendered.


author: CADENA, Justice.

text:
    ANGLER’S LODGE, INC., Appellant, v. Larry SCRUGGS et vir., Appellees.
    No. 15431.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 10, 1975.

      Smith, Davis, Rose, Finley & Hofmann, Richard W. Davis, San Angelo, for appellant.
    Alexander, Lowe & Pratt, Odessa, for appellees.
   CADENA, Justice.

This is an appeal by Angler’s Lodge, Inc., one of several defendants below, from an order of the District Court of Val Verde County overruling its plea of privilege.

On June 23, 1972, plaintiffs, Larry Scruggs and wife, Ann Scruggs, and Angler’s Lodge, Inc. (referred to in this opinion as “Angler’s”), executed a contract according to which Angler’s employed plaintiffs to act in a supervisory capacity in connection with the management, operation and control of defendant’s business, known as Angler’s Lodge, in Val Verde County. The contract expressly provided that the contract “is entered into and performance is in Val Verde County, Texas” and that venue of any litigation for its enforcement “should lie in Val Verde County. . . . ”

The period for which plaintiffs were employed was specified as beginning on April 1, 1972, and continuing until a majority of Angler’s shareholders, at a meeting called for that purpose, voted to terminate the contract for good cause.

Angler’s agreed to pay plaintiffs $12,-000.00 per year and to furnish them, rent-free, a two-bedroom apartment at the lodge. In addition, Angler’s agreed to issue to plaintiffs 35% of Angler’s stock which had been issued, or had been authorized to be issued. The stock was to be held in trust for plaintiffs by three trustees, A. D. Brown, Dennis Winterrowd and David B. Read, who were to hold such stock and distribute it to plaintiffs according to a formula based on the percentage to which Angler’s original indebtedness had been retired as of the date of the annual shareholders’ meeting. The contract prohibited the alienation or pledging of the stock being held in trust for plaintiffs unless the same proportion of stock owned by all other shareholders was pledged or alienated in the same manner.

Plaintiff’s petition named as defendants, in addition to Angler’s, David B. Read, Dennis Winterrowd and the estate of A. D. Brown, deceased. Read and Winterrowd, two of the parties named in the contract to hold plaintiffs’ shares as trustees, were sued individually and as trustees. The third trustee named in the contract, A. D. Brown, had died before this suit was filed, and plaintiffs named his estate, “Individually and as Trustee of” plaintiffs, as a defendant.

All defendants timely filed pleas of privilege. The pleas of privilege of defendants other than Angler’s were sustained, but Angler’s assertion of its right to be sued in Tom Green County, alleged to be the site of its principal office, was rejected.

In their controverting affidavit plaintiffs sought to maintain venue in Val Verde County under subdivisions 5, 7, 9a and 23 of our venue statute, Tex.Rev.Civ.Stat.Ann., art. 1995.

Under subdivision 5, a defendant who has entered into a written contract to perform an obligation in a particular county expressly named in such contract may be sued in such county where the purpose of the suit is the enforcement of such obligation.

In this case, plaintiffs’ claim is clearly based on a written contract which calls for performance of certain obligations by Angler’s. There is ho contention that Angler’s is not bound by such contract. The contract expressly recites that “ . . . performance is in Val Verde County. . . ” All of the venue facts necessary to enable plaintiffs to invoke the protection of subdivision 5 are established.

Angler’s insists that plaintiffs’ petition contains no allegations that it has neglected to perform any obligation imposed on it by the contract.

The petition alleges that Read, president of Angler’s, discharged him without “good cause.” It is alleged that plaintiffs’ remedy against Angler’s “is, by contract, specific performance,” and plaintiffs pray that the contract, be specifically enforced. It is true, as Angler’s points out, that this allegation and plea for relief is couched in unusually broad language, but Angler’s did not except to the pleading. Plaintiffs pray for “triple damages allowed by Article 4004 of the Revised Civil Statutes of Texas, because of the fraudulent acts of these Defendants in their . . . refusal to issue the stock according to their trust; . . ” Finally, plaintiffs pray that Angler’s be enjoined from selling any of the corporate stock without “compliance with . the contract of employment between” Angler’s and plaintiffs. Finally, it is alleged that plaintiffs have “been barred from the operation of the corporate business, the Angler’s Lodge, Inc.”

Despite the generality and consequent vagueness of the allegations, it must be concluded that, in the absence of a challenge based on the obvious lack of specificity, plaintiffs are seeking the enforcement of the obligations imposed on Angler’s by the written contract. The language of subdivision 5 makes it clear that it is applicable if the pleadings disclose that the suit is based on an obligation, in writing, performable in a county named in such writing, proof of the existence of a cause of action is not required. That is, it was not incumbent on plaintiffs to produce evidence establishing performance of conditions precedent, breach of the contract by Angler’s, or negativing special defenses. Southwestern Investment Co. v. Allen, 160 Tex. 258, 328 S.W.2d 866 (1959); Petroleum Producers Co. v. Steffens, et al., 139 Tex. 257, 162 S.W.2d 698 (1942); 1 McDonald, Texas Civil Practice § 4.11.1, pp. 444-45 (1965 rev.).

Since venue lies in Val Verde County under subdivision 5, it is unnecessary to consider the applicability of the other subdivisions relied on by plaintiffs.

The judgment of the trial court is affirmed.


author: COLEMAN, Chief Justice.

text:
    BEXAR PLUMBING COMPANY, INC., Appellant, v. McKITTRICK, DRENNAN, RICHARDSON, WALLACE ARCHITECTS et al., Appellees.
    No. 16589.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 11, 1975.
    Rehearing Denied Jan. 8, 1976.
    Paul L. Malloy, Jr., Houston, for appellant.
    Fulbright & Jaworski, Frank G. Jones, Houston, for appellees.
   COLEMAN, Chief Justice.

This is a suit for damages allegedly suffered by Bexar Plumbing Company, Inc. (Plaintiff), growing out of the failure of the general contractor, Spaw-Glass, Inc., to award to the plaintiff a subcontract for the plumbing work involved in the construction of a school building for the Conroe Independent School District. The trial court entered a summary judgment in favor of ap-pellees, two architectural firms retained by the School District. The judgment was based on the pleadings since there were no affidavits or other summary judgment evidence before the court. The judgment of the trial court will be reversed and the cause remanded.

Since there was no summary judgment evidence presented at the hearing in the trial court, we must consider as proven the facts alleged by the plaintiff. On November 26,1974, the trustees of the Conroe Independent School District solicited bids for the construction of a new high school. Spaw-Glass, Inc., was awarded the general contract. This contract required the general contractor to submit to the architects in writing for acceptance by the owner and architect a list of the names of the subcontractors for the principal portions of the work. It further provided that the architect should notify the general contractor in writing if either the owner or the architect after due investigation had reasonable objection to any person or organization on the list of subcontractors. On December 9, 1974, Spaw-Glass, Inc., submitted the name of Bexar Plumbing Company, Inc., as the plumbing subcontractor. Bexar had submitted the lowest bid of the plumbing subcontractors. By letter dated December 11, 1974, the McKitrrick architectural firm notified Spaw-Glass that the Bexar Plumbing Company, Inc., was unacceptable as a subcontractor for plumbing. Bexar Plumbing Company, Inc., is a corporation with principal offices in Harris County. The Strong Company, a corporation with its domicile and place of business in Montgomery County, Texas, who submitted the highest of five bids, was awarded the plumbing subcontract.

Plaintiff alleges that the defendants made no investigation whatsoever into the competence of the company receiving the bid, or other companies which made bids, including Bexar Plumbing Company, Inc. Plaintiff alleges that these actions violate the provisions of Article 21.901(b) of the Education Code, Vernon’s Texas Codes Annotated, requiring competitive bidding.

The plaintiff alleged that the award to Strong Company of the plumbing work could only be the result of bias or prejudice against plaintiff or favoritism toward the Strong Company and that the acts of the “Defendant” are unlawful and partake of “a wanton and malicious nature that constitute fraud.”

In Texas Department of Corrections v. James W. Herring, 513 S.W.2d 6 (Tex.1974), the plaintiff Herring brought action for personal injuries against the Texas Department of Corrections under the Texas Tort Claims Act, Article 6252-19, Sec. 3. The trial court held that, as a matter of law, Herring did not have a cause of action under the Texas Tort Claims Act and rendered a take-nothing summary judgment with prejudice. The Department of Corrections argued that a failure to give medical care cannot involve the use of tangible property. The Supreme Court stated that Herring’s pleadings failed to state a cause of action since no “use of tangible property” was alleged as required by the Texas Tort Claims Act. The Supreme Court recognized that a party may plead himself out of court by pleading facts which affirmatively negate his cause of action. They stated that in such a case a summary judgment would be proper. The Court held:

“Had the Department of Corrections filed special exceptions which were sustained by the court, Herring would have had an opportunity to amend as a matter of right. McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). But only after a party has been given an opportunity to amend after special exceptions have been sustained may the case be dismissed for failure to state a cause of action.”

The Court further stated:

“. . . This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff’s pleadings, as here, fail to state a cause of action. To do so would revive the general demurrer discarded by Rule 90, Texas Rules of Civil Procedure . . . ”

In Swilley v. Hughes, 488 S.W.2d 64 (Tex.1974), the Supreme Court indicated that a motion for summary judgment could properly be sustained where the facts alleged by plaintiff establish the absence of a right of action or an insuperable barrier to a right of recovery.

While we feel that the plaintiff has failed to sufficiently allege a cause of action based on the statutory requirement of competitive bidding we cannot state with certainty that the plaintiff could not by amendment allege such a cause of action.

The facts alleged by the plaintiff suggest that by amendment he might sufficiently allege a cause of action against these appel-lees based on malicious interference with business relations. See Delz v. Winfree, 80 Tex. 400, 16 S.W. 111 (1891); Davis v. Lewis, 487 S.W.2d 411 (Tex.Civ.App.—Amarillo, 1974, no writ hist.); Hampton v. Sharp, 447 S.W.2d 754 (Tex.Civ.App.—Houston [1st] 1969, writ ref’d n. r. e.); 45 Am.Jur.2d, Interference, Sec. 50, p. 322.

The judgment is reversed and the cause remanded.


author: EVANS, Justice.

text:
    FIRST HUTCHINGS-SEALY NATIONAL BANK OF GALVESTON, Appellant, v. AETNA CASUALTY & SURETY COMPANY et al., Appellees.
    No. 16588.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 11, 1975.
    Rehearing Denied Jan. 8, 1976.

      Levy, Levy, Coughlin & Withers, Lawrence M. Coughlin, Galveston, for appellant.
    Bailey, Williams, Westfall & Fowler, James A. Williams, Dallas, for appellees.
   EVANS, Justice.

We are here concerned with the priority of a surety under a contractor’s payment and performance bond as against a bank which is the holder of a perfected security interest under assignment from the contractor.

On March 16, 1971, Central Texas Plastering Company, Inc., d/b/a Aztec Construction Company, a business owned by John M. Dooley (hereinafter collectively referred to as Contractor), entered into a construction contract with the Board of Regents of the University of Texas System (hereinafter referred to as Owner), for the construction of a warehouse for the U. T. Medical Branch at Galveston, Texas. On the same day the Aetna Casualty & Surety Company (herein referred to as Surety), issued a $450,850.00 payment and performance bond designating itself as surety, the Contractor as principal and the State of Texas as obligee. On or about April 16, 1971, appellant, First Hutcjiings-Sealy National Bank of Galveston (herein referred to as Bank), made a loan to Contractor in the principal amount of $60,000.00 and obtained a security agreement from the Contractor assigning his interest under the construction contract to the Bank. The Bank’s security interest was duly perfected on April 19, 1971. The Contractor commenced the work and in May 1971, its first estimate in the sum of $35,887.50 was submitted. Upon certification of the Owner’s architect this estimate was paid in part to the Contractor and in part to the Bank. According to the agreed statement of facts, “on or about” June 7, 1971, the Contractor submitted a second estimate in the amount of $48,-711.60, for work previously completed, which was revised to the sum of $47,973.60 and certified by the architect. The agreed statement also reflects that “on or about” that same date the Contractor was found to be unable to perform any further contract obligations and-called upon the Surety to perform in its place. No payment was made of the second estimate by the Owner and on June 8, 1971, the Surety assumed control over the completion of the contract and subsequently did complete the work, spending the total sum of $471,457.13. Thereafter the Owner paid the balance of the contract funds to the Surety in the total amount of $407,584.50, being the balance of the contract funds after all additions, deductions and penalties were appropriately applied. The Contractor never paid the Surety the amount of its loss under the contract.

The Contractor also defaulted in the payment of its note to the Bank, leaving a balance due on the note in the amount of $15,996.39. The Bank brought this suit on the note against Central Texas Plastering Company, Inc., d/b/a Aztec Construction Company, John M. Dooley, the University of Texas System and Aetna Casualty & Surety Company. The case as to the Contractor was severed and the Bank was granted a summary judgment against those defendants. The trial court, sitting without a jury and upon an agreed statement of facts, entered a take-nothing judgment as to the remaining cause of action brought by the Bank against the Surety and the Owner. We affirm.

The payment and performance bond issued by the Surety was executed pursuant to the provisions of Article 5160, Tex.Rev. Civ.Stat.Ann. Section E of this article provides:

Termination of Contract
“E. In the event any contractor, who shall have furnished the bonds provided in this Statute, shall abandon performance of this contract or the awarding authority shall lawfully terminate his right to proceed with performance thereof because of a default or defaults on his part, no further proceeds of the contract shall be payable to him unless and until all costs of completion of the work shall have been paid by him. Any balance remaining shall be payable to him or his surety as their interest may appear, as may be established by agreement or judgment of a court of competent jurisdiction.”

The provisions of this statute are to be read into the construction contract to the same extent as if they we/e expressly incorporated therein. Massachusetts Bonding & Ins. Co. v. City of Grapeland, 148 S.W.2d 1006, 1009 (Tex.Civ.App.—Galveston, 1941, rev’d in part on other grounds, 139 Tex. 310, 162 S.W.2d 657).

In O’Neil Engineering Co. v. First Nat. Bank of Paris, 222 S.W. 1091 (Tex.Com.App., 1920, judgment approved), an engineering company had executed a surety bond and had assigned to the surety all amounts which might be due it under the contract by the Board of Road Commissioners. Subsequently the engineering company made an assignment to the bank of a portion of the monthly installments to which it would be entitled under its contract with the Board. After completing a portion of the work, the Board of Commissioners approved the engineering company’s estimate for a payment under the contract and a warrant for such amount was drawn on the bank’s special fund in favor of the engineering company. After the passage of several days, the bank gave notice to the Board of its assignment and demanded delivery of the warrant. On that same day, but subsequent to the bank’s demand, the engineering company appeared before the Board and gave notice that it would not be able to carry out the contract and has assigned its contractual obligations to its surety. The Board delivered the warrant to the surety company. The Commission of Appeals upheld the Board’s payment to the surety. It held that the estimate constituted a “debt due” but one which had not matured at the time the contractor abandoned the work; that the surety’s rights “immediately fastened upon” the amount retained by the Board to the exclusion of any subsequently given assignment, and that the bank’s assignment was “subject to the stipulations contained in the contract, and ... to the rights of the parties under that contract as they might arise in law.” The court stated:

“The rights of the board to retain this estimate against the contractor became fixed upon his abandonment of the contract. This right existed from the inception of the construction contract; the surety company was in equity subrogated to the then existing rights of the board. As the surety accepted its responsibility to, and did proceed in, the performance of the contract, it was vested, both under the application assignment and by subro-gation, to a prior right in the fund to that of the bank. The bank’s assignment postdated the application assignment, and postdated the equitable rights existing in the board and subject to attach to the fund. Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S.W. 621. What occurred on August 8th gave rise to the rights of the board and of the surety company which related back to, and dated from, the inception of the construction contract.” [222 S.W. 1094]

In the case before us, the trial court could have concluded from the record that the Contractor was not entitled to demand, prior to default and as matured and absolute right, payment of funds retained by the Owner which were required to complete the contract. The Surety, whose funds were required to fulfill the Contractor’s obligation under the contract, had a right of subrogation under the Owner which was not dependent upon assignment of a security interest by the Contractor. Deer Park Bank v. Aetna Ins. Co., 493 S.W.2d 305 (Tex.Civ.App.—Beaumont, 1973, no writ); Trinity Universal Ins. Co. v. Bellmead State Bank of Waco, 396 S.W.2d 163, 168 (Tex.Civ.App.—Dallas, 1965, writ ref’d n. r. e.); O’Neil Engineering Co. v. First Nat. Bank of Paris, supra. The Bank had no greater right to the disputed funds than did its assignor, the Contractor. Deer Park Bank v. Aetna Ins. Co. at p. 308 supra; Travelers Indemnity Co. v. Synder Nat. Bank, 361 S.W.2d 926, 928 (Tex.Civ.App.—Eastland, 1962, writ ref’d n. r. e.); City of Dallas v. Conley, Lott, Nichols Machinery Company, 172 S.W.2d 989, 990 (Tex.Civ.App.—Dallas, 1943, writ ref’d). The Contractor, upon default of the contract, forfeited his right to any further proceeds under the contract unless and until he paid the costs of completing the work. Since there were no funds retained by the Owner other than the funds which were required to complete the work under the contract, there were no monies remaining in the hands of the Owner which were subject to the Bank’s assignment from the Contractor.

The Bank relies on Transamerica Ins. Co. v. Texas Warrant Co., 405 S.W.2d 66 (Tex.Civ.App.—Austin, 1966, writ ref’d n. r. e.), wherein the State of Texas, after the contractor’s default, paid funds to the bank which had been “due” to the contractor prior to default. The court held that the subrogation rights of the contractor’s surety were inferior to the bank’s right under its assignment. The court based its opinion upon a 1957 amendment to Article 260-1, Tex.Rev.Civ.Stat.Ann., which statute has since been repealed by and incorporated in the Business & Commerce Code. Since the court did not refer to Article 5160, we surmise that under the facts of that case the bank was paid funds which, prior to default, represented a matured debt which was not subject to the surety’s right of subrogation. See Massachusetts Bonding & Ins. Co. v. Farmers & Merchants State Bank, 139 Tex. 310, 162 S.W.2d 657 (1942). Under the provisions of Article 5160, Tex. Rev.Civ.Stat.Ann., the defaulting contractor, or one to whom he has assigned his rights under the contract, is entitled to “no further proceeds” under the contract “unless and until all costs of completion of the work shall have been paid by him.” In our opinion, neither the holding in the Trans-america case nor the provisions of the Business & Commerce Code afford a basis for a contractor, or its assignee, to demand funds retained by an owner which are required for the completion of the work, unless the contractor, prior to default, had a matured right to payment of such funds. Deer Park Bank v. Aetna Ins. Co., supra; see also Standard Acc. Ins. Co. v. Federal Nat. Bank, 112 F.2d 692, 694 (10th Cir. 1940); General Electric Supply Co. v. Epco Constructors, Inc., 332 F.Supp. 112, 115 (S.D. Texas, Houston, 1971).

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    COURTESY PONTIAC, INC., Appellant, v. Perry R. RAGSDALE, Appellee.
    No. 888.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 18, 1975.
    Rehearing Denied Jan. 8, 1976.

      Jack Norwood, Holcomb & Norwood, Tyler, for appellant.
    Henry L. McGee, Jr., Tyler, for appellee.
   DUNAGAN, Chief Justice.

Perry R. Ragsdale brought this suit against Courtesy Pontiac, Inc. alleging the conversion of his automobile and seeking actual and exemplary damages. Courtesy Pontiac, Inc. appeals from a judgment entered on the jury’s answers to four special issues.

Ragsdale went to appellant’s place of business on Saturday, July 7, 1973, for the purpose of looking at a 1973 Datsun automobile. He saw a model he liked and reached an agreement with one of appellant’s salesmen as to the purchase price of the Datsun and the trade-in value of a 1972 Capri automobile. Ragsdale signed a Retail Installment Contract and other instruments involved in the purchase. He contends, and appellant denies, that there was an oral agreement which conditioned the transaction upon his ability to obtain bank financing of the Datsun over a period of 42 months. Ragsdale drove the Datsun from the car lot and left the Capri.

On July 9,1973, Ragsdale tried and failed to obtain financing of the Datsun over a 42-month period. He returned to Courtesy Pontiac, Inc. and attempted to exchange the Datsun for the Capri. He was informed that the contract was binding. On the same day, after discussing the matter with his attorney, Ragsdale again returned to Courtesy Pontiac, Inc., asserted the conditional nature of the contract and requested the exchange of the automobiles. This request was refused and Ragsdale departed in the Datsun. At that time, he advised appellant not to dispose of the Capri and was told that the car had already been sold.

Ragsdale’s assertions were reiterated in a letter received by Courtesy Pontiac, Inc. on July 11, 1973. Appellant, in a letter received by Ragsdale on July 28, 1973, demanded payment of the purchase price of the Datsun and the furnishing of clear title to the Capri. Ragsdale filed suit against appellant on August 2, 1973. Appellant secured possession of the Datsun on September 17, 1973, by Writ of Sequestration. The automobile had not been driven during this time but had been stored in the garage of Ragsdale’s grandparents.

The jury, in response to SPECIAL ISSUE NO. 1, found that there was an oral agreement between Ragsdale and Courtesy Pontiac, Inc. that the sales contract would not take effect unless Ragsdale was able to obtain 42 months financing. Appellant’s first point of error attacks the legal sufficiency of the evidence to support this finding. This point was not made in appellant’s motion to disregard certain jury findings and is not germane to any assignment of error in appellant’s motion for new trial. Appellee contends the point was waived under Rules 324 and, 374, T.R.C.P. Rule 324 does not require that grounds of error alleged in a motion to disregard jury findings be included in a motion for new trial. Pelham Manufacturing Company v. Ridlehuber, 356 S.W.2d 502, 504 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.). However, the motion to disregard does not eliminate the necessity for complaining of other errors in a motion for new trial. See Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 890 (1960). Appellant’s failure to attack the sufficiency of the evidence to support the finding of an oral agreement in either its motion to disregard or its motion for new trial resulted in a waiver of that point.

SPECIAL ISSUE NO. 2 was conditioned upon an affirmative answer to SPECIAL ISSUE NO. 1 and inquired as to the market value of the Capri automobile in July, 1973. The trial court reduced this figure by the amount of debt outstanding on the Capri and arrived at the amount of actual damages. Appellant does not complain of this finding or the amount of actual damages.

Appellant states that the affirmative answer to SPECIAL ISSUE NO. 3 constitutes a finding of conversion. We disagree. Conversion is the wrongful exercise of dominion and control over another’s property in denial of or inconsistent with his rights. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex.1971). In light of the failure of the oral condition as to financing, Courtesy Pontiac, Inc. exercised wrongful dominion over the Capri when it refused to return the automobile to Rags-dale. SPECIAL ISSUE NO. 3 seems to be the predicate for the exemplary- damages awarded under SPECIAL ISSUE NO. 4. In other words, SPECIAL ISSUE NO. 3 amounted to an inquiry whether appellant’s unlawful act was also of a wanton and malicious nature warranting exemplary damages. See Southwestern Investment Co. v. Alvarez, 453 S.W.2d 138, 141 (Tex.1970). The conditioning of SPECIAL ISSUE NO. 4, an inquiry as to the amount of exemplary damages, upon an affirmative answer to SPECIAL ISSUE NO. 3 indicates the role of SPECIAL ISSUE NO. 3 as a predicate for such damages. The use of the word, “malice,” in the issue would have been helpful but not absolutely necessary. See Clements v. Withers, 437 S.W.2d 818, 822 (Tex.1969). Moreover, appellant did not object to the submission of the issue in this form.

Appellant’s argument under its second and third points of error is that there was no evidence to support the finding on SPECIAL ISSUE NO. 3. Under the above construction of that issue, this argument is that there was no evidence of that type of conduct by appellant which would warrant exemplary damages. Appellant’s fourth point, that appellee is not entitled to exemplary damages as a matter of law, presents essentially the same argument. We therefore determine appellant’s second, third and fourth points together and, in doing so, consider only the evidence and inferences which support the finding of conduct warranting exemplary damages. Kroger Food Company v. Singletary, 438 S.W.2d 621, 625 (Tex.Civ.App.—Beaumont 1969, n. w. h.).

Exemplary damages are available only if the unlawful act warranting the actual damages was of a wanton and malicious nature. Southwestern Investment Co. v. Alvarez, supra. Malice may be actual or implied. See Evans v. McKay, 212 S.W. 680, 689 (Tex.Civ.App.—Dallas 1919, writ dism’d). Actual malice is characterized by ill will or an intent to injure. Clements v. Withers, supra. Implied or legal malice exists when wrongful conduct is intentional and without just cause or excuse. Webb v. Cooks’ Union No. 748, 205 S.W. 465, 468 (Tex.Civ.App.—Fort Worth 1918, writ ref’d); Davis v. Nash Central Motors, 332 S.W.2d 475, 481 (Mo.App.1960). The type of malice necessary to support exemplary damages varies with the nature of the wrongful act involved. For example, actual malice must exist to recover exemplary damages for interference with a contractual relationship. Clements v. Withers, supra. On the other hand, malice may be inferred from wrongful acts in an action for damages to riparian rights. Tennessee Gas Transmission Co. v. Moorhead, 405 S.W.2d 81, 86 (Tex.Civ.App.—Beaumont 1966, writ ref’d n. r. e.).

The type of malice required for exemplary damages in a conversion action is not a settled issue in Texas. An award of exemplary damages for a knowing, but probably nonspiteful, conversion was upheld in Brown v. Grice, 357 S.W.2d 620 (Tex.Civ.App.—Austin 1962, n. w. h.). However, this case was not followed and ill will was apparently required in Kroger Food Co. v. Singletary, supra, at 627; See Woodard v. Tatum, 277 S.W.2d 943, 945 (Tex.Civ.App.—Waco 1955, n. w. h.). Exemplary damages for wrongful sequestration were upheld, despite an absence of ill will in defendant’s conduct, in First Security Bank & Trust Co. v. Roach, 493 S.W.2d 612, 618 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.). In the Roach case, malice was defined in the special issue answered affirmatively by the jury as “ill will ... or such gross indifference to the rights of a party as will amount to a wilful or wanton act done intentionally and without just cause . ..” First Security Bank & Trust Co. v. Roach, supra, at 614; See C. O. Morgan Lincoln-Mercury, Inc. v. Yancey, 498 S.W.2d 738, 741 (Tex.Civ.App.—Fort Worth 1973, n. w. h.). A similar definition of malice was approved and intent to injure was inferred in Masso v. Bryan, 498 S.W.2d 19 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.). Exemplary damages, based upon a definition of malice as “the intentional doing of a wrongful act without just cause . . . ”, were upheld in Roy Gladen Buick, Inc. v. Sterling, 524 S.W.2d 590, 592, 596 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.). Ill will or an intent to injure does not seem to have been present in that case. We conclude that ill will may be implied from the knowing conversion of another’s property without justification.

We now determine whether or not there was some evidence that the conduct of Courtesy Pontiac, Inc. constituted actual or implied malice so as to support exemplary damages. On July 9, 1973, Ragsdale requested the return of his Capri automobile and appellant, through its employees, refused. There is no evidence that this refusal was motivated by ill will or spite towards Ragsdale. However, given the undisputed finding of an oral agreement, this was a knowing conversion and malice may be implied if the refusal was without justification. Appellant’s employee told Rags-dale at that time that the Capri had been sold. Appellant maintains that there was no evidence that the car was sold after Ragsdale’s request. However, there is testimony by appellant’s employees that the Capri was sold on either July 11 or July 16, 1973. Thus, appellant had no justification for refusing to return the automobile on July 9.

There was some evidence that appellant willfully and intentionally sold the Capri automobile when it knew it was not the owner. There is some evidence that this knowing conversion was without justification. Appellant’s points 2, 3 and 4 are overruled.

Appellant’s alternative fifth point asks this court to require a remittitur of a portion of the exemplary damage award of $8,000. The amount of exemplary damages rests largely in the discretion of the jury and will not be disturbed unless it is so large as to indicate that it is the result of passion, prejudice or corruption. First Security Bank & Trust Co. v. Roach, supra, at 619. The purpose of an exemplary damage award is not the compensation of the plaintiff; the purpose is to punish the defendant. Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, 713 (1943). However, we conclude that the punishment in this case is unwarranted and excessive by $4,000.

The judgment of the trial court is affirmed subject to the filing of a remittitur of $4,000 by Ragsdale within 15 days from the date hereof; otherwise, the cause is reversed and remanded to the trial court.

ON MOTION FOR REHEARING

Appellee by his motion for rehearing asserts that we “gave no reason or basis” for our conclusion in our original opinion that the exemplary damages awarded were unwarranted and excessive. Such conclusion was based upon a consideration of all the facts and circumstances after a careful examination of the entire record according to the guidelines as set out in Carter v. Barclay, 476 S.W.2d 909, 917 (Tex.Civ.App.—Amarillo 1972, n. w. h.) and Southwestern Investment Company v. Neeley, 452 S.W.2d 705 (Tex.1970).

Being of the opinion that we correctly disposed of this appeal by our original decision, we respectfully overrule appellee’s motion for rehearing.

SUPPLEMENTAL OPINION

Appellee, having filed in writing, subject to his motion for rehearing, the remittitur as suggested in our original opinion, and appellee’s motion for rehearing this day having been overruled, it is ordered that the judgment as reduced by the remittitur be affirmed.

      . Rule 324 provides in pertinent part:
      “ * * * a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assignment therein shall be a prerequisite to the right to complain on appeal of the action of the court in . rendering or refusing to render judgment non obstante ve-redicto or notwithstanding the finding of the jury on one or more special issues, . . .”
      Rule 374 provides in pertinent part:
      “A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived.”

      . “SPECIAL ISSUE NO. 3
      Do you find from a preponderance of the evidence that Courtesy Pontiac, Inc., through its agents or employees, willfully and intentionally sold the 1972 Capri automobile in July of 1973, at a time when they knew they were not the owners of said vehicle?
      ANSWER: WE DO.”


author: AKIN, Justice.

text:
    Ex parte Jimmy FLEMING.
    No. 18826.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 30, 1975.
    Rehearing Denied Jan. 29, 1976.

      Kenneth Mahand, Houston, for appellant.
    David E. Watkins, Jenkins & Watkins, Inc., Douglas A. Barnes, Dallas, guardian ad litem, for appellee.
   AKIN, Justice.

This is an original habeas corpus proceeding under Tex.Rev.Civ.Stat.Ann. art. 1824a (Vernon Supp.1974). The question presented is whether an order in a divorce decree directing relator, in his capacity as trustee of fund for the benefit of the parties’ minor son, to pay respondent’s attorney the sum of $2,000 from such fund is void. The relevant part of the judgment is:

The Court finds that Petitioner and Respondent are holding in trust one Certificate of Deposit, No. 362148, in the Dallas Federal Savings & Loan Association of Dallas, Texas, issued June 3,1974, in the amount of $4,300.00 plus accrued interest, for the use and benefit of PAUL DAVID FLEMING, and that Petitioner should be appointed sole trustee of this trust fund.
It is therefore ORDERED and DECREED that Petitioner be the sole and exclusive trustee of such funds for the use and benefit of PAUL DAVID FLEMING.
The Court finds that it was necessary for Respondent to secure the services of DAVID E. WATKINS, a licensed attorney, to preserve and protect the rights of Respondent. The Court further finds that a fee of Three Thousand Dollars ($3,000.00) is reasonable and proper for the services rendered, and the Respondent is not able to pay this fee.
It is therefore ORDERED that DAVID E. WATKINS, a licensed attorney, be and is hereby awarded attorney’s fees in the amount of Three Thousand Dollars ($3,000) for legal services rendered. The sum of Two Thousand Dollars ($2,000.00) shall come out of the trust fund for the use and benefit of PAUL DAVID FLEMING previously mentioned, and the sum of One Thousand Dollars ($1,000.00) is awarded in the form of a judgment against Petitioner, for which let execution issue if not timely paid. [Emphasis added.]

Relator refused to comply with the part of the judgment ordering payment of $2,000 from the trust fund and, on October 24, 1975, after notice and hearing, relator was found in contempt of court and ordered to be confined in jail for seventy-two hours and thereafter until he complied with the court’s order. We granted bail pending hearing.

Relator argues that the trial court was without authority to divest funds owned by the minor son, Paul David Fleming, to pay respondent’s attorney’s fee. We agree. We have reviewed the pleadings in the original divorce proceeding and find no claim by either party upon which the trial court could base such an order. A court’s jurisdiction to render judgment is invoked by pleadings, and a judgment unsupported by pleadings is void. Douthit v. Anderson, 521 S.W.2d 127, 129 (Tex.Civ.App., Dallas 1975, no writ). Moreover, since no controversy between the parties existed as to the trust, the trial court lacked jurisdiction to divest the trust of funds. Davis v. First National Bank, 139 Tex. 36, 44, 161 S.W.2d 467, 472 (1942). Consequently, we hold that the judgment in so far as it purports to divest trust funds is void and relator, as trustee, was not guilty of contempt in resisting payment of trust funds to respondent’s attorney. It follows that the contempt order is also void.

Relator discharged.


author: BISSETT, Justice.

text:
    Anthony Angela TYE, Appellant, v. Charles Allen TYE, Appellee.
    No. 1048.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1975.
    Rehearing Denied Jan. 30, 1976.

      Martin J. Grimm, Houston Legal Foundation, Houston, for appellant.
    Michael S. Thorne, Thorne, Avery & Greer, Houston, for appellee.
   OPINION

BISSETT, Justice.

This appeal arose out of a divorce action brought by Charles Allen Tye, petitioner, against Anthony Angela Tye, respondent. The case was tried before the court without a jury. Charles Allen Tye was granted a divorce from Anthony Angela Tye, and was named managing conservator of Rebecca Alline Tye, their only child. Anthony Angela Tye has appealed from that portion of the judgment which appointed Charles Allen Tye managing conservator of the child.

The parties were married on April 24, 1971. The child, Rebecca Alline Tye, was born on June 8, 1972, in Houston, Texas. The parties separated and ceased living together as husband and wife on February 7, 1974. The petition for divorce was filed on March 8,1974. Appellee alleged in his petition that it was in the best interest of the child that he be given the permanent care, custody and control of the child. Appellant answered by a general denial, which was filed on September 13, 1974. Judgment was signed on March 25, 1975.

Appellant did not appear in person at the trial, but she was represented by counsel. She did not offer any evidence in her behalf. She did, prior to trial, answer certain interrogatories which were propounded to her by appellee. These answers were introduced into evidence by appellee. None of the answers are relevant to any issue presented by this appeal. Appellee, who is employed as a stationary engineer for the U. S. Merchant Marine, and whose port of call (his home port) was Houston, Texas, at the time of trial, was the only witness in the case. He was cross-examined by counsel for appellant. At the conclusion of ap-pellee’s testimony, the trial court granted appellee’s petition for divorce and appointed him managing conservator of the child, and named appellant possessory conservator with certain visitation rights.

The following findings of fact were made by the trial court relevant to the issue of custody of the child: that appellee can and will secure permanent employment in Houston, Texas; that appellant did not seek or administer proper medical care to Rebecca Alline Tye; that the two-story house in Baltimore, where appellant lived, has a fairly steep staircase on which the child is permitted to play; that the child is sometimes neglected; and, that appellee’s parents, who are self-employed, will help ap-pellee take care of the child. The court concluded that the best interest and welfare of the minor child Rebecca Alline Tye, would be served if appellee was named as her managing conservator.

The appellant, in her first point of error, contends that the trial court erred in appointing appellee permanent managing conservator because there is no evidence to sustain such action. She argues that the record contains no probative evidence which conclusively demonstrates appellee’s fitness and appellant’s lack of fitness. She further argues that the court was prohibited from lending weight to the only evidence offered to prove appellee’s fitness and appellant’s unfitness, because such evidence is hearsay.

When confronted with a point of error based on “no evidence”, this Court must consider only that evidence and those inferences which support the court’s findings in a light most favorable to such findings, and must reject all evidence and references contrary to the findings of the trial court. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 362-363 (1960).

Specifically, the appellant is claiming that there is no evidence to support the several specific findings of fact made by the trial court which support the court’s conclusion of law that it was in the child’s best interest that appellee be appointed managing conservator. The first finding of fact complained of is the finding that appellee’s parents are self-employed and will help him care for the minor child. Appellee testified that his parents were self-employed and that the child could stay in their home. Appellant’s counsel did not object to this testimony. The testimony is not hearsay. The testimony is of probative value. The next finding appellant complains of is the finding that the appellant did not seek or administer proper medical care to the minor child. Appellee testified that appellant failed to furnish the child with proper medical attention and care. Admittedly, such testimony is opinion evidence of an interested witness, but such evidence is not without probative value. It was not disputed by any other evidence. Appellant also complains of the findings that the home in which the child resided has fairly steep stairs on which the child is permitted to play, and that the child is neglected. The appellee testified as to the steepness of the stairs in appellant’s mother’s home; that the child was permitted to play on the stairs. This is testimony based on personal observation and is not hearsay. If this condition did not exist, the appellant had the burden of offering some evidence contrary thereto. This she did not do. Ap-pellee also testified in some detail as to conditions which, in his opinion, indicated neglect of the child. Again, this is opinion evidence which was not contradicted. It is not without probative value. Under the record before this Court, such evidence could be considered by the trial court. Other findings of fact, about which appellant complains, have no relevancy on the question of the best interest and welfare of the child.

It is clear from the testimony offered at the trial that there was some evidence of probative value upon which the trial court could base the findings of fact which were made. The conclusion of law is adequately supported by evidence. Appellant’s first point of error is overruled.

Appellant’s second point of error is that there is insufficient evidence in the record to support the trial court’s finding that appellee should be the permanent managing conservator of the child. It is appellant’s contention that this finding is so against the great weight and preponderance of the evidence as to be clearly wrong. In disposing of a point of error which asserts factually “insufficient evidence”, this Court must consider the entire record, weigh all the evidence, and reverse and remand the case only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong, and manifestly unjust and unfair. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

In awarding custody of a minor child in a divorce proceeding the courts of this State may not indulge any preference towards the mother. Tex. Family Code Ann., § 14.01(b) (1975) states:

“A parent shall be appointed managing conservator of the child unless the court finds that appointment of the parent would not be in the best interest of the child. In determining which parent to appoint as managing conservator, the court shall consider the qualifications of the respective parents without regard to the sex of the parent.” (Emphasis supplied.)

In Adams v. Adams, 519 S.W.2d 502 (Tex.Civ.App.—El Paso 1975, no writ), it was held that the effect of the above-quoted section of the Family Code “is to put both parents on an otherwise equal plane in a child custody case, and thus remove a preference for the mother”. See also Erwin v. Erwin, 505 S.W.2d 370 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ). Tex. Family Code Ann. § 14.07, provides, in part:

“(a) The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child
(b) In determining the best interest of the child, the court shall consider the circumstances of the parents.”

In awarding custody of minor children in a custody action, the principal concern of the courts of this State is the welfare and best interests of the children involved. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.1963); McAnally v. McAnally, 239 S.W.2d 154 (Tex.Civ.App.—Eastland 1951, writ ref’d); Brown v. Brown, 500 S.W.2d 210 (Tex.Civ.App.—Texarkana 1973, no writ); Adams v. Adams, supra.

The question of the custody of minor children is addressed to the sound discretion of the trial court when it is the trier of fact. It is in a better position than an appellate court to determine what will be in the best interests of the children since the trial judge faces the parties and their witnesses, observes their demeanor, and has the opportunity to evaluate the claims made by the parties, all of which are difficult to accurately weigh and determine by the mere reading of the statement of facts. In determining what is best for the minor children in a custody proceeding, the trial court’s judgment will not be disturbed by an appellate court unless there has been a clear abuse of discretion. Herrera v. Herrera, 409 S.W.2d 395 (Tex.Sup.1966); In re Y, 516 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.); Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.).

The findings of the trial court are binding on the appellate court in a child custody case unless they are so contrary to the great weight and preponderance of the evidence as to reveal a clear abuse of discretion. In re Y, supra. In the case at bar, there is no showing of an abuse of discretion which would justify any change by this Court in the judgment of the trial court which named appellee the managing conservator of his minor child, Rebecca Alline Tye. There is sufficient evidence to support the findings and judgment of the trial court. Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.


author: YOUNG, Justice. NYE, Chief Justice

text:
    Jurdie L. BARTON, Appellant, v. PACIFIC EMPLOYERS INDEMNITY COMPANY now Ina of Texas, Appellee.
    No. 1018.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 31, 1975.
    Rehearing Denied Jan. 30, 1976.
    Pedro P. Garcia, Corpus Christi, for appellant.
    Jack K. Dahlberg, Guy H. Allison, Allison & Garcia, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

In this workmen’s compensation case, Jurdie L. Barton was awarded compensation benefits by the Industrial Accident Board. The insurance carrier, Pacific Employers Indemnity Company, gave timely notice of its dissatisfaction with the award and within twenty days after notice filed suit in the district court. Service of citation was delivered to Barton on November 22,1974, and she answered by general denial on November 27, 1974. Without giving notice to Barton, the carrier took a non-suit and the cause was dismissed without prejudice on December 18,1974. Appeal here by Barton is by writ of error filed six months after the order of dismissal.

The issue here is at what point in the proceedings and under what circumstances may a plaintiff appealing from an award of the Industrial Accident Board take a non-suit, abrogate the award, and destroy the interests of the parties involved. Appellee argues that the proper time is after the appearance date. Appellant contends, without suggesting the correct time, that a non-suit may not be taken unless notice is given to the claimant.

The Texas Legislature has answered the issue presented here, as to notice, in favor of the appellant by enactment of Tex.Rev. Civ.Stat.Ann. art. 8307d (Supp.1975). It became effective June 19, 1975, two days after this writ of error was filed. We do not, therefore, consider Article 8307d totally dis-positive of the question here. It provides:

“At any time before the jury has retired in the trial of a workmen’s compensation case on appeal from an award of the Industrial Accident Board, the plaintiff may take a nonsuit after notice to the other parties to the suit and a hearing held by which time all parties must perfect their cause of action, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge of a district or county court, such nonsuit, after notice and hearing, may be taken at any time before the decision is announced.”

This article is reflective of legislative concern for the problem involved. Although this article did not control the action of the parties in this case, we cannot agree with appellee’s suggestion that because the Legislature has only recently codified the requirement of notice and hearing before taking a non-suit, notice was not required prior to the effective date of the statute.

An appeal from a Board decision is governed by Tex.Rev.Civ.Stat.Ann. art. 8307, § 5 (1967). This article provides, in part, that after notice is given that a party is not willing to abide by the decision of the Board, he shall bring suit to set aside that decision within twenty days after giving the notice. It is further provided that the decision of the Board shall be binding upon all the parties unless the party giving notice institutes and prosecutes a suit to set the decision aside within twenty days of giving notice.

Generally, a party’s right to take a nonsuit pursuant to Rule 164, T.R.C.P., is absolute and cannot be denied. Brooks v. O’Connor, 120 Tex. 121, 39 S.W.2d 22, 24 (1931). Our courts have, however, tempered the general rule with the exception that the privilege is not entirely without limitation. Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600, 602 (1944). It has been recognized in non-workmen’s compensation cases that the plaintiff that exercises the privilege must act in good faith. McCormick v. Hines, 498 S.W.2d 58, 64 (Tex.Civ.App.—Amarillo 1973, writ dism’d); State v. Garza, 358 S.W.2d 749, 751 (Tex.Civ.App.—San Antonio 1962, no writ); J. A. Walsh & Co. v. R. B. Butler, Inc., 260 S.W.2d 889, 890 (Tex.Civ.App. — Waco 1953, writ dism’d w. o. j.) with opinion, 152 Tex. 601, 262 S.W.2d 952 (1953); Payne v. Nichols, 176 S.W.2d 961, 963-964 (Tex.Civ.App.—Galveston 1944, writ ref’d w. o. m.). Also, the court may, exercising its equitable powers, delay the granting of the nonsuit to permit the filing of a counterclaim in exceptional circumstances. J. A. Walsh & Co. v. R. B. Butler, Inc., supra.

There is, however, an even stronger reason to recognize a limitation upon the right when non-suit is sought by a plaintiff insurance carrier in an appeal from a decision of the Industrial Accident Board. The reason is that when the appeal has been perfected pursuant to Article 8307, § 5, the award of the Board is vacated. Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674, 676 (1936). If the employee has not filed a cross-action and the insurance company is permitted to take a non-suit, the employee is out of court without an award of the Board or judgment of the court. The Texas Supreme Court early recognized the harshness of granting a motion for non-suit in such a situation. We find the language in Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S.W.2d 677, 679 (1936), particularly applicable to the case at bar.

“It is not permissible for a party against whom an award has been rendered by the Industrial Accident Board to defeat the purpose of the law by appealing to a court of competent jurisdiction, and then, before that court has acquired jurisdiction of the parties and subject-matter, and before an opportunity is given to all parties concerned to assert their rights therein, dismiss the suit, abrogate the award, and destroy the interests of the parties involved in the award appealed from. The law does not sanction such a principle, and such procedure would not be tolerated.”

It has also been held that a condition to limiting the right of a plaintiff to take a non-suit is that the action of permitting the non-suit be not reasonably calculated to prejudice any right of the defendant for affirmative relief. Bedner v. Federal Underwriters Exchange, 133 S.W.2d 214, 217 (Tex.Civ.App.—Eastland 1939, writ dism’d, judgm’t cor.). There is a strong inference in the present case that the action of the carrier in seeking a non-suit without giving notice to the employee was decidedly calculated to defeat liability. The condition in Bedner, however, was not intended to preclude a carrier from seeking to defeat liability. The limitation is upon an action that would prejudice the rights of the claimant. Appellant’s contention is that her rights were prejudiced when the carrier failed to give notice to her of the motion for non-suit.

In Hardware Mutual Casualty Company v. Clark, 360 S.W.2d 921 (Tex.Civ.App.— Waco 1962, writ dism’d), the employee was seeking to mature an award of the Board. The question before the Court was whether the award of the Board had been vacated. Initially the carrier appealed from the Board’s decision and the employee answered by general denial only. Twenty-three days after the employee’s answer was filed the carrier dismissed its suit and gave notice within five days. The employee did not seek to reinstate the cause but five months later instituted suit to mature the award of the Board.

The carrier’s contention was that when it filed suit to set aside the decision of the Board the award was vacated and could not be matured. The employee argued that by dismissing its suit the carrier had not instituted and prosecuted its suit as required by Article 8307, § 5. The court held that the carrier fulfilled the requirements of the statute when suit was filed. The court explained that when the employee answered, the court acquired jurisdiction and the award of the Board was vacated.

The employee also argued that he was entitled to wait until any time before trial on the merits to assert his claim and dismissal without advance notice to him prevented his exercise of this right. Rejecting this argument the court said:

“. . .To adopt the contention would be to hold that by filing a general denial claimant could indefinitely preclude a voluntary dismissal by the carrier without subjecting itself to the hazard of having the award matured with the ensuing penalties. . . . ”

The above quoted language does not adequately answer the claimant’s contention that she was entitled to notice, nor does it answer her argument here that notice is required by Rule 72, T.R.C.P. Appellee’s position is, without citing any authority, that Rule 72 is not applicable to motions for non-suit. The rule provides, in part, that whenever a party files a motion which is not required by law or other rules to be served on the adverse party, he shall at the same time either deliver or mail to the adverse party or his attorney a copy of the motion. The underlying purpose of this rule is to prevent surprise and provide an opportunity for the opposing party to contest the motion. Three Bee Inv. Corporation v. Galveston-Houston Co., 166 S.W.2d 382, 383 (Tex.Civ.App.—Galveston 1942, no writ).

Because of the nature of a suit to set aside a decision of the Board and the severe consequences attending a dismissal of the cause pursuant to a motion for non-suit, appellant is entitled, at the very least, to the notice as required by Rule 72. We so hold. And our decision does not rest upon Article 8307d. The language of that statute is not retroactive and not controlling of the action of the parties here.

The trial court’s order of dismissal is, therefore, reversed and the case is remanded to this trial court with instructions to reinstate the cause on the trial court’s docket and to allow the appellant a reasonable time to file her cross-action under the Texas Workmen’s Compensation Act.

The case is reversed and remanded with instructions.

NYE, Chief Justice

(concurring).

It is evident to me that neither the legislature nor the Courts of Texas ever intended to permit one party to abrogate another party’s rights without proper notice. Under the workmen’s compensation statutes, notice is required of every step in the proceedings. Even though Article 8307, Section 5 does not specifically require notice of a non-suit, the legislature intended that such be the case. The amendment of the statute under Article 8307d which is now in effect reflects such intent. Although Rule 164, T.R.C.P. would indicate that a party has a right to take a non-suit and that such right is absolute and cannot be denied, our Constitutions, both state and federal, prohibit such action.

I know of no other situation in the law where a party’s rights could be completely destroyed, finally, and without effective appeal, than in this situation, if a non-suit were sanctioned. There is no place in the law for permanent relief, to any party, in a court of law, without proper notice. Even though the Texas Rules of Civil Procedure do not provide for such notice, our Constitutions do. Tex.Const. Art. 1, § 19; U.S.C.A. Const. Amend. Y, XIV. “. . . nor (shall a person) be deprived of life, liberty, or property, without due process of law; Every person is entitled to due process of law. There cannot be due process without proper notice. See Armstrong v. Manzo, 371 S.W.2d 407 (Tex.Civ.App.—El Paso 1963, writ ref’d n. r. e., 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).