author: NYE, Chief Justice.

text:
    Lester LINDLEY, Appellant, v. James T. SMITH, Appellee.
    No. 941.
    Court of Civil Appeals of Texas, Corpus Christi.
    June 19, 1975.

      John J. Pichinson, H. E. Bower, Corpus Christi, for appellant.
    George D. Shaffer, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a summary judgment case. Plaintiff brought this suit against the defendant for reimbursement of costs incurred and for payment of attorney’s fees for representing the defendant in five separate cases. Plaintiff moved for summary judgment against defendant. The trial court granted summary judgment in favor of the plaintiff for $1,246.40, together with interest thereon at the rate of 6% per annum from date, and attorney’s fees in the amount of $415.46, for a total of $1,661.86. From that judgment the defendant has duly perfected his appeal to this Court.

It appears that the Honorable James T. Smith, hereafter referred to as plaintiff, was employed and retained as the attorney for Lester Lindley in connection with his representation of five separate cases. The plaintiff prepared a lengthy detailed accounting and presented it to the defendant. The accounting listed the cases in which defendant had employed the plaintiff. The accounting set out in itemized form all of the expenses incurred and moneys advanced to the defendant. The total amount was $1,483.45. On April 7, 1973, the plaintiff and defendant signed and approved the itemized statement and an agreement as to the distribution of funds to be received in the settlement of the case of Lindley v. Lee Roberts, Case No. 170, 783-C, 28th District Court of Nueces County. Said agreement entered into between plaintiff and defendant is set out in part as follows:

"It is understood between client, Lester Lindley, and attorney, James T. Smith, that the case of Lester Lindley vs. Lee Roberts will be settled for the sum of $2,000.00 and the above deductions and fees will be paid and the balance of $516.55 remitted to Lester Lindley.
APPROVED:
/%/ James T. Smith
James T. Smith
Attorney 4-7-73
/s/Lester Lindley
Lester Lindley
Client 4-7-73"

On April 7, 1973, defendant Lindley also gave his authorization to his attorney Smith to receive a check in settlement of said case and distribute it according to the agreement set out above. Said authorization states that:

"CASE NO. 110,783-C, 28th DISTRICT COURT, LESTER LINDLEY VS. LEE ROBERTS
I HEREBY AUTHORIZE my attorney, James T. Smith, to receive a check in the above entitled matter made payable to him as my attorney, or if made payable to me and to James T. Smith, as my attorney, to endorse my name and signature to said check, to deposit same in his settlement account and to make the distribution as hereinbefore set forth PROVIDED a xerox copy of the check for $2,000.00 be forwarded to me.
/s/ Lester Lindley
Lester Lindley
Client
4-7-73"

The defendant contends that on the 7th day of April, 1973, at the time of signing the accounting agreement and authorization he informed the plaintiff that he did not desire to settle the case against Lee Roberts for the sum of $2,000.00, but signed the agreement only under duress when plaintiff told him he would not settle a $12,000 judgment, which Lanphier Construction Company obtained against him for $1,000.

The defendant evidently attempted to revoke the authorization to cash the check as evidenced by his statements contained in his affidavit, prior to actual settlement. Plaintiff then filed suit against the defendant for payment of the debts due as alleged, plus reasonable attorney’s fees. Thereafter, plaintiff moved for summary judgment which was granted by the trial court.

From this judgment the defendant has duly perfected his appeal to this Court.

In summary judgment cases the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.Sup.1972). The summary judgment sought should be granted, and if granted should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, supra, at 828. Harrington v. Young Men’s Christian Association of Houston and Harris County, 452 S.W.2d 423 (Tex.Sup.1970); Rule 166-A(c), Rules of Civil Procedure.

The plaintiff’s summary judgment evidence consists of: 1) plaintiff’s motion for summary judgment; 2) an affidavit of plaintiff James T. Smith; 3) and the un-sworn and uncertified copies of the “accounting” and “authorization” attached to the affidavit.

The defendant on the other hand includes within his controverting summary judgment evidence: 1) his answer to plaintiff’s motion for summary judgment, contending that by virtue of the pleadings and the affidavit attached to the answer, a genuine issue as to a material fact exists which must be determined by the jury; 2) and defendant’s controverting affidavit.

Before discussing whether plaintiff by his summary judgment evidence has established, as a matter of law, that there exists no fact issue, plaintiff’s first counter point should be considered. Here, the plaintiff questions whether defendant’s controverting affidavit was actually before the trial court in that the controverting affidavit was filed September 20,1974, the same date of the judgment, thus not in strict compliance with Rule 166 — A(c), T.R.C.P. The rule reads in part as follows:

“(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. . ” (Emphasis supplied.)

Although Rule 166-A(c) provides that the adverse party may serve opposing affidavits prior to the day of hearing, this provision is merely directory. The trial courts have considerable discretion to receive affidavits on the date of the hearing. 4 McDonald, Texas Civil Practice § 17.26.7 (1971); Brown v. Aetna Casualty and Surety Company, 366 S.W.2d 673 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.); Axcell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d n. r. e.); City National Bank in Wichita Falls v. Bradshaw, 433 S.W.2d 955 (Tex.Civ.App.—Fort Worth 1968, no writ). The plaintiff having shown no abuse of discretion by the trial judge, we hold that the controverting affidavit was properly considered.

With the defendant’s answer and controverting affidavit before us, the question still remains whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. The specific question to be determined on appeal is whether plaintiff has established as a matter of law that according to the agreement (designated as an accounting) he is entitled to the $1,246.40, attorney’s fees and costs. We believe plaintiff has failed to satisfy his summary judgment burden.

The defendant, in his affidavit, states in part as follows:

“That on the 7th day of April, 1973, at the time of the signing of Plaintiff’s Exhibit ‘B’ set forth in Plaintiff’s Motion for Summary Judgment, I informed the Plaintiff, Mr. James T. Smith, that I did not desire to settle the case against Lee Roberts for the sum of Two Thousand ($2,000) Dollars, but signed the agreement only under duress when Plaintiff told me that he would not settle a $12,000 Judgment which Lanphier Construction Company obtained against me for $1,000. At the time of the signing of said Exhibit ‘B’ Plaintiff well knew that I did not want to settle said case against Lee Roberts for $2,000 and that I would not sign any release or indorse any check in final settlement of said case.”

The general rule in summary judgment cases is that all conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.Sup.1972); Parrott v. Garcia, 436 S.W.2d 897 (Tex.Sup.1969); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.Sup.1965). The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against him. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1957); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); 4 McDonald, Texas Civil Practice § 17.26.12, pp. 174, 175 (1971). We hold, as we must, that there was a fact issue as to whether defendant by the means of duress was induced to sign the agreement made the basis of this suit. There being an issue of fact to be decided, it was improper for the trial court to have granted summary judgment for the plaintiff. Defendant’s assignment of error number one is sustained.

There appears to be a further reason why the said summary judgment in favor of plaintiff was improper. The defendant in his fourth point of error contends that the trial court erred in granting attorney’s fees in the amount of $415.46 because there is no summary judgment evidence supporting the granting of such attorney’s fees. We agree. There was no evidence by affidavit or otherwise that $415.46 was a reasonable fee. The judgment recites that the court considered all of the pleadings on file, together with such affidavits, but there is no summary judgment evidence in the record bearing upon the amount and the reasonableness of such fee. The plaintiff’s motion for summary judgment merely asks for “reasonable attorney’s fees.”

The proof necessary to sustain attorney’s fees in a summary judgment case must meet the same standards of proof as in other similar causes of action. The pleadings, even though sworn to are insufficient to constitute summary judgment evidence. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.1971). There must be something other than sworn pleadings to prove up attorney’s fees under Article 2226, Vernon’s Ann.Civ.St. There must be proof, such as a deposition, interrogatories, admissions, or affidavits from competent witnesses. This proof must establish the basis for the fee, whether the contract of the attorney is for a contingent or non-contingent fee. If non-contingent, it should set forth the amount of work included and other bases that attorneys use for substantiating the fee. With this proof before the trial court, the court can then determine the reasonableness of the attorney’s fee. See Stafford v. Brennan, 498 S.W.2d 703 (Tex.Civ.App.—Corpus Christi 1973, no writ); Audiomedia, Inc. v. Rollins Outdoor Advertising, Inc., 477 S.W.2d 370 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); Goodman v. Art Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.); Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ). There being no summary judgment evidence as to the reasonableness of attorney’s fees, the learned trial court was without authority to award plaintiff attorney’s fees. Appellant’s fourth point of error is sustained.

Although it is not necessary to the proper disposition of this case, the appellant’s third point of error should also be considered. Appellant contends that the trial court erred in entering the summary judgment because the affidavit attached to plaintiff’s motion for summary judgment is insufficient in that the copies attached thereto are neither sworn to nor certified as required by Rule 166-A(e), T.R.C.P. Rule 166-A(e) provides as follows:

“(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” (Emphasis supplied).

The two exhibits attached to plaintiff’s affidavit, the purported accounting agreement and the authorization, were neither sworn to nor certified as required by Rule 166 — A(e). See Texas National Corporation v. United Systems International, Inc., 493 S.W.2d 738 (Tex.Sup.1973); Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Kain v. Neuhaus, 515 S.W.2d 45 (Tex.Civ.App.—Corpus Christi 1974, no writ). Plaintiff’s affidavit was then subject to exception because verified or certified copies of the two instruments were not attached to or served with the Smith affidavit. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1963). Objections of this kind may not be raised for the first time on appeal when it fairly appears from the record (including the affidavit) that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Youngstown Sheet & Tube Co. v. Penn, supra; Farmers & Merchants Compress & Warehouse Company v. City of Dallas, 335 S.W.2d 854 (Tex.Civ.App.—Dallas 1960, writ ref’d n. r. e.). However, since the plaintiff has failed to show he is entitled to a judgment here, such deficiencies, which should have been corrected upon proper exception in the trial court, are noted.

Because of the errors hereinbefore set forth, the judgment of the trial court is reversed and the cause remanded for trial.

Reversed and remanded.


source: Caselaw Access Project

author: AKIN, Justice. CLAUDE WILLIAMS, Chief Justice GUITTARD, Justice. CLAUDE WILLIAMS, C. J.,

license: Public Domain

text:
    FIRST NATIONAL BANK IN GRAND PRAIRIE, Appellant, v. LONE STAR LIFE INSURANCE COMPANY, Appellee.
    No. 18487.
    Court of Civil Appeals of Texas, Dallas.
    Feb. 27, 1975.
    Rehearing Denied May 15, 1975.

      Don C. Templin, Haynes & Boone, Dallas, for appellant.
    William D. Sims, Jr., Jenkens & Gilchrist, . Dallas, for appellee. . •
   AKIN, Justice.

Lone Star Life Insurance Company sued the First National Bank in Grand Prairie to recover $30,000 plus interest which the bank refused to pay on a non-negotiable certificate of deposit payable to T. H. Hamilton. Lone Star alleged that it owns the certificate of deposit by virtue of foreclosure under a security agreement between Lone Star and Hamilton. The certificate of deposit was purchased by Hamilton with funds from Lone Star simultaneously with the closing of a real estate loan transaction between Hamilton and Lone Star, and pledge of the certificate of deposit was one of the conditions of the loan. Hamilton signed a security agreement covering the certificate of deposit and delivered the security agreement and certificate of deposit to Lone Star.

An officer of the bank was present throughout the transaction, and, as the trial court found on sufficient evidence, he had actual knowledge that the certificate of deposit was pledged to Lone Star. Hamilton defaulted and Lone Star foreclosed on all security, including the certificate of deposit, and notified the bank. The bank then claimed an equitable right to offset Hamilton’s previous indebtedness to the bank against the certificate of deposit and attempted to do so.

Lone Star contends that the bank could not offset its claims against the certificate of deposit because the bank had notice of Lone Star’s interest in the funds, under such decisions as National Indemnity Co. v. Spring Branch State Bank, 162 Tex. 521, 348 S.W.2d 528 (1961), which hold that where a bank has knowledge that a depositor’s funds are trust funds, the bank may not seize and detain such funds to offset a debt of the depositor to the bank. The bank contends that these decisions are not controlling in this case because the Uniform Commercial Code, which was adopted in 1967, requires the filing of a financing statement for perfection of a security interest in such a deposit. We agree with the bank that the Code applies here, but we also agree with Lone Star’s alternative contention that the certificate of deposit, as distinguished from an ordinary deposit account, is an “instrument,” with respect to which a security interest can be perfected only by transfer of possession, without the filing of a financing statement, under Tex. Bus. & Comm.Code Ann. § 9.304 (Tex. UCC 1968). [Emphasis added.]

We conclude that the National Indemnity rule does not apply here because that opinion, which was written before adoption of the Code, treats the certificate of deposit like any deposit account. The Code, however, makes a sharp distinction between the two. Article 9.105(a)(5) of the Code in its definition of “deposit account” specifically excludes an account evidenced by a “certificate of deposit.” Furthermore, § 9.104(12) provides that article 9 does not apply to the transfer of an interest in any “deposit account” (except as provided with respect to proceeds and priorities in proceeds). Therefore, a certificate of deposit, regardless of negotiability, falls within the ambit of article 9 of the Code.

The situation here is not affected by § 9.104(9), which excludes “any right of set-off” from the requirements of article 9. In the context of this provision, it means that the claimant of a right of setoff is not required to comply with the Code. It does not mean that a setoff can be successfully asserted against a party who has perfected a security interest in the manner prescribed by article 9.

The bank asserts that this alleged pledge of the certificate of deposit is governed by § 9.102(b), which states that article 9 of the Code “applies to security interests created by contract including pledge, assignment,” and that the certificate of deposit is not a “deposit account” as defined under Tex. Bus. & Comm.Code Ann. § 9.105(a)(5) (Tex. UCC Supp.1974), which provides: “[A] demand, time, savings, passbook or like account maintained with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a certificate of deposit.” The bank’s conclusion is that since the certificate of deposit is not excluded under § 9.104, which enumerates transactions excluded from article 9, and since a certificate of deposit is not a deposit account under § 9.105(a)(5), then this entire transaction is governed solely by the Code.

We agree with this contention. We interpret the Code provisions concerning security interests as exclusive with respect to perfection of a security interest in such a certificate. This interpretation is in accordance with the policy of the Code to provide certainty and uniformity in the rules governing transactions within its scope. Tex. Bus. & Comm.Code Ann. § 1.102 (Tex. UCC 1968).

The bank cites the recent Supreme Court cases of Hudnall v. Tyler Bank and Trust Co., 458 S.W.2d 183, 186 (Tex.1970) and Citizens National Bank of Dallas v. Hill, 505 S.W.2d 246, 248 (Tex.1974), which arose after adoption of the Code, for the proposition that one who seeks to impress a trust upon such funds or to show that the deposit was restricted in some manner (as a “special deposit”) must show that the bank agreed to such a restriction of the deposit or agreed to act as trustee.

We do not reach this point because we hold, for reasons to be discussed later, that Lone Star perfected a security interest by taking possession of the certificate under its security agreement. We do not consider these cases as holding that the National Indemnity rule still applies to certificates of deposit as here, under the Code, because no certificates of deposit were involved. The deposits involved in each were “deposit accounts” under the definition in § 9.104 and, therefore, excluded from coverage by article 9. Consequently, the Supreme Court had no occasion to consider the application of the Code to a “certificate of deposit.” We also note that Martin v. First State Bank, 490 S.W.2d 208, 211 (Tex.Civ.App.—Amarillo 1973, no writ), apparently follows the National Indemnity rule. However, no question under the Code was presented, and Martin is distinguishable on its facts. The decision turned on the construction of a contract between Martin and a third party which had been assigned to the bank. Since the bank had possession of the certificates of deposit under a pledge agreement with Martin, no question under the Code was raised. The case was simply one of interpretation of an ambiguous written contract between Martin and the bank with reference to the application of the proceeds of the certificates of deposit.

We conclude that the rule in National Indemnity is still the law in Texas except for cases like the present, in which it has been displaced by the Code. Tex.Bus. & Comm.Code Ann. § 1.103 (Tex. UCC 1968).

Although we agree with the bank that the Code applies to the perfection of a security interest in a certificate of deposit, we cannot agree that the Code requires filing of a financing statement with the Secretary of State in a case like the present. Here it is undisputed that Lone Star did not file a financing statement. Therefore, the question is: Did Lone Star perfect a security interest in the certificate of deposit in question by taking possession pursuant to a security agreement?

Section 3.104(c) of the Code provides: “As used in other chapters of this title, and as the context may require, the terms ‘draft’, ‘check’, ‘certificate of deposit’ and ‘note’ may refer to instruments which are not negotiable within this chapter as well as to instruments which are so negotiable.” [Emphasis added.]

Section 9.304(a) provides: “A security interest in instruments (other than instruments which constitute part of chattel paper) can be perfected only by the secured party’s taking possession . . . .” [Emphasis added.]

The question then turns upon whether or not the certificate of deposit is an “instrument” under Tex.Bus. & Comm.Code Ann. § 9.105(a)(9) (Tex. UCC Supp.1974) of the Code, thereby bringing it within the ambit of § 9.304(a).

The bank asserts that a certificate of deposit cannot be an “instrument” under § 9.105(a)(9) of the Code because the restrictive legend “Non-Negotiable” would prevent the certificate of deposit from being transferred in the ordinary course of business by delivery and assignment. We agree that the instrument is nonnegotiable. Nevertheless, we hold that it is an “instrument” within § 9.105(a)(9). This section is not limited to negotiable instruments. It provides:

‘Instrument’ means a negotiable instrument (defined in Section 3.104), or a security (defined in Section 8.102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment. [Emphasis added.]

A certificate of deposit is a writing which evidences a right to the payment of money. The question is whether or not it may be transferred in the ordinary course of business by delivery with any necessary endorsement or assignment. “Instrument” in § 9.105(a)(9) covers non-negotiable documents because of the language “in ordinary course of business transferred by delivery with any necessary . . . assignment.” There would be no reason for the insertion of the aforesaid language if we construed the term “instrument” only to mean a instrument, as the bank would have us do in this case. The concept and of article 9 of the Code is to provide a method whereby all security interests in personal property and fixtures can be perfected. In some instances, filing is required, and, in others possession of the collateral is all that is necessary. In re Atlanta Times, Inc., 259 F.Supp. 820 (N.D.Ga.1966), affirmed, Sanders v. National Acceptance Co. of America, 383 F.2d 606 (5th Cir. 1967); Levine v. Pascal, 94 Ill.App.2d 43, 236 N.E.2d 425, 431 (1968); see also Coogan, Kripke & Weiss, The Outer Fringes of Article 9, 79 Harv.L.Rev. 229, 261 (1965); Farnum v. C. J. Merrill, Inc., 264 A.2d 150, 154 (Me.1970); Coogan, The New UCC Article 9, 86 Harv.L.Rev. 477, 511, 559 (1973).

The language of the certificate in question indicates recognition by the bank that it is transferable by delivery and assignment in the ordinary course of business. It specifies an amount which the bank “agrees to pay to depositor upon presentation of this certificate.” [Emphasis added.] “Presentation” necessarily implies possession. Such presentation is necessary for the bank’s protection because lack of possession would indicate that the named owner of the certificate of deposit may have transferred it to a third party. No such protection would be necessary if the certificate were not so transferable. Consequently, we hold that a certificate of deposit, whether negotiable or non-negotiable, is transferable by delivery of possession in the ordinary course of business as that term is used in defining “instruments” in § 9.105(a)(9). P. Coogan, W. Hogan & D. Vagts, Secured Transactions Under the Uniform Commercial Code, § 6.02[1], at 466 (1 Bender’s Uniform Commercial Code Service 1974); Id. at 468 n. 8; Id. at 472; Id. § 6.02[2], at 525. In Southview Corp. v. Kleberg First National Bank, 512 S.W.2d 817 (Tex.Civ.App.-Corpus Christi 1974, no writ) similar certificates of deposit were held to be “instruments” within § 9.105(a)(9). We have reviewed the record in Southview and find that both certificates of deposit there were non-negotiable, as in this case.

Nothing in the certificate of deposit in question prohibits its assignability or transferability. The fact that it is non-negotiable simply means the third party cannot be a holder in due course and does not deny the certificate of deposit the status of an “instrument.” Tex.Bus. & Comm.Code Ann. § 3.805 (Tex. UCC 1968).

We, therefore, conclude that, since the non-negotiable certificate of deposit is an “instrument” under § 9.105(a)(9) of the Code, the only way a security interest can be perfected here is by possession under the specific provisions of § 9.304(a). [Emphasis added.]

The bank also contends that even if the certificate of deposit is an "instrument," and if Lone Star had perfected its security interest in the certificate of deposit, Hamilton, as owner of the certificate of deposit could only convey to Lone Star Hamilton's contractual rights, which were subject to the bank's right of setoff against Hamilton, We cannot agree with this contention. Since we hold the certificate was an "instrument" within the Code, Lone Star perfected a security interest by taking possession, and no subsequent claim by the bank could impair that security interest. Commercial Discount Corp. v. Milwaukee Western Bank, 61 Wis.2d 671, 214 N.W.2d 33 (1974).

Our holding that the non-negotiable certificate of deposit is an “instrument” under article 9 of the Code makes it unnecessary to discuss bank’s other points of error, except those pertaining to interest on the certificate of deposit. During closing of the loan transaction on March 16, 1972, between Hamilton and Lone Star (in which issuance and pledge of the certificates of deposit was a requirement), a discussion took place between bank’s vice president, Lone Star’s vice president, and Hamilton as to whether Lone Star or Hamilton would receive the interest on the certificate of deposit. It was finally agreed among the parties that the interest on the certificate of deposit would be paid to Hamilton, and the bank’s vice president initialled the certificate of deposit accordingly. Since Lone Star in oral argument has conceded any rights to the interest that accrued on the certificate of deposit prior to foreclosure thereon on May 16, 1972, we modify the judgment by the bank’s right of setoff to the extent of $275, representing interest accruing to Hamilton prior to foreclosure by Lone Star. However, after foreclosure Lone Star owned the certificate of deposit and, therefore, is entitled to any interest accruing thereafter. Southwestern Bell Tel. Co. v. Crown Ins. Co., 416 S.W.2d 705 (Kansas City Mo.Ct.App.1967).

Although the trial court rested its judgment on a different ground, its judgment must be sustained if it is correct on any theory of law applicable to the record. Austin Paving Co. v. Cimarron Construction, Inc., 511 S.W.2d 417 (Tex.Civ.App.—Austin 1974, no writ); Trinity River Authority v. Texas Water Rights Commission, 481 S.W.2d 192 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.); Searle-Taylor Machinery Co. v. Executive Car Leasing Co., 477 S.W.2d 696 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ).

The judgment of the trial court, as modified herein, by credit of $275, is accordingly, affirmed.

CLAUDE WILLIAMS, Chief Justice

(concurring).

While I am in agreement with, and concur in, the result reached by the majority that the judgment of the trial court should be affirmed, I express my disagreement with the theory that the resolution of the questions presented by this appeal is controlled by the Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968). I would simply base the affirmance of the trial court’s judgment upon the established law of this state as announced by the Supreme Court in National Indemnity Co. v. Spring Branch State Bank, 162 Tex. 521, 348 S.W.2d 528 (1961).

The facts of this case are relatively simple. Upon being sued by Lone Star to recover upon the certificate of deposit, the bank denied any liability because such certificate of deposit was non-negotiable and also that the bank was entitled to setoff against the certificate of deposit for obligations of Hamilton to the bank, which were in default. Therefore, the primary question presented by this case is whether or not the bank was entitled to a setoff against a certificate of deposit. I consider Tex.Bus. & Comm.Code Ann. § 9.104(9) (Tex. UCC Supp.1974), as demonstrating that no provision of the Uniform Commercial Code is applicable to the resolution of this question.

The majority opinion urges that article 9 of the Texas Business and Commerce Code Annotated (Tex. UCC 1968) is applicable and therefore states:

The bank’s conclusion is that since the certificate of deposit is not excluded under § 9.104, which enumerates transactions excluded from article 9, and since a certificate of deposit is not a deposit account under § 9.105(a)(5), then this entire transaction is governed solely by the Code. We agree with this contention.

I cannot agree with this statement since I do not think that it is supported in law.

First, the fact that a certificate of deposit does not fall within the Uniform Commercial Code definition of “deposit account” in Tex.Bus. & Comm.Code Ann. § 9.105(a)(5) (Tex. UCC Supp.1974) is no reason to hold that the Uniform Commercial Code is completely controlling in this case.

Second, the fact that a certificate of deposit is not enumerated in Tex.Bus. & Comm.Code Ann. § 9.104 (Tex. UCC Supp. 1974), as being excluded from the coverage of article 9 is no justification to hold that the Uniform Commercial Code is controlling. The idea that something not excluded from coverage of the Uniform Commercial Code is included in it, is expressly rejected by Tex.Bus. & Comm.Code Ann. § 1.103 (Tex. UCC 1968), which provides that: “Unless displaced by the particular provisions of this title,” the principles of Texas law supplement the Code’s provisions. [Emphasis added.]

Third, the statement “this entire transaction is governed solely by the Code,” is refuted by Tex.Bus. & Comm.Code Ann. § 9.104 (Tex. UCC Supp.1974), which is entitled: “Transactions Excluded from Chapter” and says in part: “This chapter does not apply ... (9) to any right of set-off.” This statement clearly excludes the idea that the Code is the controlling law concerning the right of the bank in this case to assert a setoff against the certificate of deposit.

By way of analogy, Tex.Bus. & Comm. Code Ann. § 9.104(7) (Tex. UCC Supp.1974) provides that a transfer of an interest or claim in or under any policy of insurance is excluded from coverage of article 9. The comment to subsection (7) states:

7. Rights under life insurance in other policies, and deposit accounts, are often put up as collateral. Such transactions are often quite special, do not fit easily under a general commercial statute and are adequately covered by existing law.

Such policy is clearly applicable in this situation. We do not have two parties, each with some variety of a security interest in the certificate of deposit, involved in this case. Lone Star has a security interest, but the bank’s sole right to the certificate of deposit arises from its setoff against the certificate of deposit. Since the question presented is solely that of setoff, Tex.Bus. & Comm.Code Ann. § 9.104(9) (Tex. UCC Supp.1974) indicates no provision of the Uniform Commercial Code is applicable to the resolution of the question.

As demonstrated by the Supreme Court’s post-UCC opinions in Hudnall v. Tyler Bank and Trust Co., 458 S.W.2d 183 (Tex.1970) and Citizens National Bank v. Hill, 505 S.W.2d 246 (Tex.1974), it is clear that the rule of National Indemnity is still the law in Texas. The majority opinion seeks to distinguish these cases by the fact that they did not involve a certificate of deposit. However, a certificate of deposit may evidence a general or special deposit depending upon the particular facts involved. Martin v. First State Bank, 490 S.W.2d 208, 211 (Tex.Civ.App. — Amarillo 1973, no writ); 9 C.J.S. Banks and Banking § 315, at 641 (1938). Additionally, it should be noted that the Martin court applied the National Indemnity rule to a certificate of deposit case finding:

On the other hand a deposit made for some special application or disposition is a special deposit and when a bank knowingly accepts a deposit for a specific purpose, it cannot thereafter divert it for its own benefit or otherwise act to defeat the purpose for which the deposit was made. ... A special deposit, or one made for a specific purpose, differs from a general deposit in that title to the special deposit does not pass to the bank. . [A]nd the relationship created by the deposit is that of bailor and bailee, rather than that of creditor and debtor. (With authorities cited therein)

The Martin case also points out that the determination of whether a deposit is a general or a special deposit turns on the mutual intentions and understandings of the parties, “as revealed by their agreements and all of the circumstances of the case involved.”

The trial court, in its findings of facts and conclusions of law, found that the bank had actual notice and knowledge that the certificate of deposit was pledged to Lone Star'as security for the loan of Lone Star to Hamilton in the amount of $30,000. The uncontradicted evidence in this case shows that Murdock, an officer of the bank, attended the closing between Lone Star and Hamilton. This officer observed Hamilton sign a security agreement and turn the agreement and the certificate of deposit over to Lone Star. This bank officer then accepted $30,000 in funds supplied by Lone Star in payment of the certificate of deposit. The court found that the bank had actual knowledge that the certificate had been pledged to Lone Star; that the $30,000 which funded the purchase of that certificate of deposit belonged to Lone Star; and that Lone Star had an interest in such certificate. Under these findings the question of setoff is definitely one of banking law which has long since been established by the Supreme Court in National Indemnity. I would construe these findings and conclusions of the trial court as being final with regard to the question of whether or not the bank agreed to the quasi-trust agreement in this case. Therefore, I would deny the offset and affirm the judgment of the trial court, but not based on any strained construction of the Uniform Commercial Code.

ON MOTION FOR REHEARING

GUITTARD, Justice.

The bank argues in its motion for rehearing that we should remand the case for a new trial because there is no evidence that the certificate of deposit in question “is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment,” within § 9.105(a)(9) of the Code. The bank insists that the “ordinary course of business” of banks regarding non-negotiable certificates of deposit has not been proved.

We do not agree that the status of the certificate as an “instrument” within the Code is a matter of fact to be left to the uncertainties of oral testimony,. Such a holding would be contrary to the underlying purpose of the Code to “simplify, clarify and modernize the law governing commercial transactions.” Section 1.102(b)(1). It would result, instead, in uncertainty and confusion because a person lending money to the holder of such a certificate would have difficulty in determining whether he should perfect his security interest by taking possession of the collateral under § 9.304(a) or by filing a financing statement with the Secretary of State under §§ 9.302(a) and 9.401.

Simplicity and clarity in such transactions is better achieved by holding as a matter of law that a non-negotiable certificate of deposit is an “instrument” as defined by § 9.105(a)(9). Unquestionably, it satisfies the requirement in this definition of a “writing which evidences the right to the payment of money.” We conclude that it also is “of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.”

The word “type” may be interpreted either narrowly or broadly. In the light of the general purpose of the Code, we do not construe it narrowly to refer only to writings of exactly the same character, such as, in this case, other non-negotiable certificates of deposit. Instead, we construe it broadly to include any writing which, like a stock certificate or negotiable instrument, is treated as a token of the rights it represents and, therefore, is normally delivered to any person to whom the rights are transferred. The certificate in question resembles such instruments more than it resembles ordinary deposit accounts, which are expressly distinguished from certificates of deposit in § 9.105(a)(5), and are governed by different rules set out in chapter 4 of the Code. It is a writing which the holder must keep and present as evidence of his right, as its language expressly provides. It may easily be delivered by one party to another in the course of a commercial transaction. Possession of such a certificate can normally be expected to give the issuer and others notice that the possessor claims some interest in the rights which it represents. Such notice is more effective and more commercially reasonable than filing a financing statement with the Secretary of State. If the certificate is accompanied by an assignment from the original depositor, the issuer would have no reason to refuse payment to the assignee. Accordingly, we hold that the certificate in question, as a matter of law, is “of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.”

The bank insists that if some third party, such as Lone Star in this case, should present the certificate, the bank would not be required to pay because the third party would not bevihe“depositor” to whom the bank had agreed to pay the money. This argument erroneously assumes that the certificate is nonassignable as well as non-negotiable. Although the certificate is non-negotiable because it is not “payable to order or to bearer” within § 3.104(a)(4), and, therefore, a transferee could not be a holder in due course, it is nevertheless assignable, like any other contract right not involving personal trust or confidence. Ray v. Spencer, 208 S.W.2d 103, 104 (Tex.Civ.App.—Texarkana 1947, writ ref’d). Nothing in the certificate or in the Code limits its assignability. If the third party should present the certificate to the bank, together with an assignment signed by the depositor, the bank, on paying the amount of the certificate, would be protected against liability to the depositor by possession of the certificate as well as by the assignment.

Indeed, the bank does not deny all liability to Lone Star as assignee of the certificate, but only denies liability to the extent of the offset which the bank claims. But, since we hold that the certificate is “of a type which is in ordinary course of business transferred by delivery of possession with any necessary indorsement or assignment,” and, therefore, is an “instrument” within § 9.105(a)(9), Lone Star perfected its security interest by taking possession under § 9.304(a), and the security interest so perfected prevails over the claimed offset.

Motion overruled.

AKIN, J., concurs in this opinion.

CLAUDE WILLIAMS, C. J.,

concurs in the order overruling the motion for rehearing only for the reasons set forth in his concurring opinion.

      . All references to the Code are to the Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968).

      . Whether a certificate of deposit is negotiable or non-negotiable is not determined by labeling the writing “non-negotiable” but by its terms. To be negotiable it must be payable to “order” or “bearer;” otherwise, it is non-negotiable. § 3.104(a).
      The certificate of deposit in question is non-negotiable. It states:
      This certifies that T. H. Hamilton has deposited in this bank payable to depositor in current funds the sum of Thirty Thousand and No/100 Dollars which amount the bank agrees to pay to depositor upon presentation of this certificate.

      . Any Annotated (Tex. UCC 1968). reference herein to the Code refers to the Texas Business and Commerce Code

      . No one has urged that any section of article 4 of Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968), which deals with banking deposits and collections, is applicable in this case.

      . All references in this opinion are to Tex.Bus. & Comm.Code Ann. (Tex. UCC 1968), as amended.


author: MASSEY, Chief Justice.

text:
    Inge UHL, Appellant, v. Chell Bentley UHL, Appellee.
    No. 17633.
    Court of Civil Appeals of Texas, Fort Worth.
    May 30, 1975.

      John H. Chambers, Arlington, for appellant.
    Chell Bentley Uhl, pro se.
   OPINION

MASSEY, Chief Justice.

Suit was for enforcement of child support agreement proper to be considered as having been made part of a divorce judgment rendered in Germany.

The record proof was transferred from the foreign jurisdiction and made a part of the pleadings of Inge Uhl, the mother and custodian of the parties’ minor child. It was sufficient to vest jurisdiction in the Texas trial court. Included was the proof that while they were married and prior to the time of their divorce Inge Uhl, plaintiff herein, and Chell Bentley Uhl, the defendant, had legally adopted Stefen Roy Uhl, now under the age of 14 years and resident in Germany with his mother. Furthermore it was shown that since the divorce the plaintiff has continued to be the legal custodian of the child, and that defendant was legally required to contribute $75.00 per month as his part of the expenses to support his child until the time, if any, that the obligation be increased or decreased by order of a court of competent jurisdiction.

That the foregoing should be so treated by this Court is obvious since the trial court, without complaint thereof, rendered judgment for plaintiff for the amount of unpaid child support (at $75.00 per month) to date of the judgment. From such judgment the plaintiff perfected her appeal. Defendant did not appeal and did not file any brief in response to or challenging the plaintiff’s statement of the facts in her brief.

Judgment is in part affirmed, and in part remanded.

Plaintiff contends that the judgment rendered by the trial court was not sufficient; that in addition to the relief granted the court was obliged and should have decreed: (1) the amount of child support payments necessary to be paid by defendant for the support of the parties’ minor child in the future, (2) judgment for plaintiff for a reasonable amount as attorney’s fee in winning the award for plaintiff, and (3) taxation as costs the expenses made necessary by reason of defendant’s arbitrary refusal to cooperate in disposing of certain questions of fact involved as to which there was no bona fide controversy. It was because of the refusal of the trial court to make any decree relating to these matters that plaintiff appealed.

This is a case where that portion of the judgment granting relief to plaintiff is not appealed from, and is therefore not part of the subject matter of the appeal. For opinion purposes it is more conveniently treated as a part of the judgment which we affirm. We also affirm the judgment insofar as there was refusal to tax as costs or to award as part of the judgment the expenses to which plaintiff was put by the defendant’s arbitrary refusal to cooperate, thus making necessary the plaintiff’s expense in making proof of facts which the defendant should have but refused to admit, including the genuineness of documents.

We exclude, for purposes of what is stated below, the matter of attorney’s fees which would have been enhanced in connection with proof of plaintiff’s case made necessary by any refusal of defendant to cooperate.

Plaintiff did not include in her prayer for relief that there be judgment for the expense attendant to making proof other than for attorney’s fees. Nor does plaintiff make the essential showing that she had evidence upon the reasonable amount of such expenses since there was no Statement of Facts brought forward as part of the record on appeal. Principally, plaintiff’s claim is that there is entitlement for the expenses by the provisions of Texas Rules of Civil Procedure, rule 169, “Admission of Facts and of Genuineness of Documents” and by the provisions of T.R.C.P. 170, “Refusal to Make Discovery; Consequences”.

In Section (e) of Rule 170 is provided the occasion for entitlement to relief where a party might be held to have put his adversary to expense of unnecessary proof. However, relative to the obligation of the adversary, if he would obtain relief because thereof, the language of the Rule is: “. he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof. If in the course of such a hearing it shall appear to the satisfaction of the court that any party or his attorney is arbitrarily refusing to co-operate in disposing of questions of fact as to which there is no basis for bona fide controversy, the court shall tax all expenses of proving such facts, including reasonable attorneys’ fees, against the party refusing to co-operate, subject to review upon appeal.”

In this case there was not, either prospectively or retrospectively, motion or application for court order requiring the defendant to make payment. Some character of showing that there was application to the court for such is a necessary predicate for relief by Rule 170. Here there was no written motion, and, since there is no Statement of Facts, not even a showing that there was an oral request refused by the court in any hearing separate from the trial or as part of the trial. Under these circumstances plaintiff cannot obtain any relief from an appellate court. Note also the absence of a Statement of Facts showing any proof. The points of error, insofar as they relate to this claimed entitlement, are overruled.

The complaints upon the trial court’s failure to grant relief by provision for future support of the minor child by defendant, and upon failure to award attorney’s fees as “necessaries” to such child, we hold to be well founded and are to be sustained despite the failure to make a Statement of Pacts part of the record on appeal.

Hearing held below was subsequent to the effective date of Texas Family Code. By the Code plaintiff is to be treated as the “managing conservator” of the parties’ minor child. Sec. 14.01, Y.T.C.A., “Court Appointment of Managing Conservator”. She is also the “possessory conservator” of the child. Section 14.04, “Rights, Privileges, Duties, and Powers of Possessory Conservator”, provides that it is the duty of such a person to provide protection to the child and to provide him with clothing, food and shelter. Section 14.05, “Support of Child”, provides that the court may order either or both parents to make periodic payments or “. . . for the support of the child until he is 18 years of age . . . .”

Section 4.02, “Duty to Support”, provides that each spouse has a duty to support his or her minor children. “. . .A spouse who fails to discharge a duty of support is liable to any person who provides necessaries to those to whom support is owed.”

Title 2, Subtitle B of the Family Code includes Chapter 21, “Uniform Reciprocal Enforcement of Support Act”. Thereunder is Sec. 21.02, “Purposes”, in which is stated that the purpose of the provisions under the Chapter is to improve and extend by reciprocal legislation the enforcement of duties of support, etc. Section 21.23, “How Duties of Support are Enforced”, provides that all duties of support, including arrearages, are enforceable by a suit under the Chapter, irrespective of the relationship between the obligor and the obligee. Section 21.27, “Minor Petitioner”, provides that suit “on behalf of” a minor obligee may be brought by a person having legal custody of the minor without appointment as guardian ad litem. Section 21.32, “Duty of State as Responding State” provides, relative to instances where there is no (other) court of this state having continuing jurisdiction of the child the jurisdiction of the court to which application is made to proceed to the necessary hearing and adjudication. Section 21.37, “Support Order”, provides that if the court holding the hearing (with jurisdiction) finds a duty of support, it may order the defendant to furnish support or reimbursement therefor, etc.

Finally, under Sec. 21.39, “Enforcement Power of Court”, is provided that in addition to other specified powers under Chapter 21 the court has the power to subject the defendant to such terms and conditions as the court may deem proper to assure compliance with its orders, and in particular:

“(1) • ■ •
“(2) to require the defendant to make payments at specified intervals to the district clerk or probation department of the court; and
“(3) to punish the defendant who shall violate any order of the court to the same extent as is provided by law for contempt of the court in any other suit or proceedings cognizable by the court.”

The plaintiff’s pleadings invoked jurisdiction in the premises in the trial court. It is obvious from the judgment and from the Findings of Fact and Conclusions of Law filed by the court, coupled with the unchallenged statements made in the brief of the plaintiff, that the trial court deemed itself without jurisdiction to do other than to render a judgment like unto one for an accrued indebtedness. For this reason the court omitted any provision for future child support in the judgment.

By references made to sections of the Texas Family Code it is clear that the Legislative intention was to acknowledge the public policy of this state that a parent shall support his child, and to extend and reinforce the authority of the courts of the state to require that such a parent (found within the state and over whom jurisdiction is acquired) provide that support by compulsion of the law as prescribed in the Code. Our holding is that the trial court was vested with jurisdiction and authority to render judgment inclusive of a decree for relief as specified by Sec. 21.39 of the Code, and that there was error by the court when it failed to do so.

On the matter of attorney’s fees we observe that under Schwartz v. Jacob, 394 S.W.2d 15 (Houston, Tex.Civ.App., 1965, writ ref., n. r. e.), attorney’s fees for the plaintiff should be held to be “necessaries” to defendant’s minor child in Germany and not to plaintiff as a benefit to her apart therefrom. Akin v. Akin, 417 S.W.2d 882, 885 (Austin, Tex.Civ.App., 1967, no writ history); Tharp v. Tharp, 438 S.W.2d 391, 395 (Houston (14th), Tex.Civ.App., 1969, writ dism.); Perkins v. Freeman, 501 S.W.2d 424, 429 (Beaumont, Tex.Civ.App., 1973, reversed on other grounds at Tex., 518 S.W.2d 532).

Such services was a requirement, as “necessaries” essential to protect and provide support for the child, not covered or contemplated to be covered by the defendant’s payment of the monthly amounts for child support but in addition thereto. It was because of the defendant’s failure to pay the monthly amounts which were covered and contemplated that there was the requirement that the plaintiff, in the discharge of duty incumbent upon her to provide for and protect the interests of the child, contracted in his behalf for attorney’s services.

Our holding is that under the circumstances of the case the trial court, having allowed any recovery of “support money” to the plaintiff, should have considered plaintiff’s evidence upon attorney’s services and/or attorney’s fees and awarded a reasonable amount therefor to plaintiff as part of the judgment rendered in the case.

The case was tried before the court without a jury. By what we have written above there was obligation on the part of the defendant to pay a reasonable amount as attorney’s fees; the only question would be upon propriety of amount to be paid. When a plaintiff is clearly entitled to attorney’s fees in some amount but where there had been no proof in the trial court of the amount there may be severance of that issue with remand to the trial court for a new trial on that issue. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.Sup., 1966).

There has been interpretation of the above case (Great American Reserve Insurance Co. v. Britton) and the law now appears to be settled that the court may take judicial notice that a litigant is entitled to attorney’s fees but it may not take judicial notice of what the attorney’s fees should be; that evidence of some character is required to set the amount for judgment purposes, even in a non-jury case. Schecter v. Folsom, 417 S.W.2d 180 (Dallas, Tex.Civ. App., 1967, no writ history); Reynolds Research & Manufacturing Co. v. Scamardo, 412 S.W.2d 941 (Waco, Tex.Civ.App., 1967, no writ history); Rhoades v. Miller, 414 S.W.2d 942 (Tyler, Tex.Civ.App., 1967, no writ history). That is the law as applied to circumstances of the case before us.

Of similar import would be the need for evidence to enable the trial court to determine the obligation upon future child support which should be furnished by the defendant, commensurate with his ability and according to his station. The established amount is presently $75.00 per month. There has been no move for any increase or decrease in the amount but merely for the court to honor and enforce the liability and obligation shown to be existent at time of the trial. Existent pleadings do not raise an issue upon amount though they do raise an issue upon future obligation. By the court’s judgment we may know that the intent was to honor and enforce the foreign judgment as applied to the time antecedent to judgment. We have held that the trial court erred in failing to make an adjudication upon the future obligation of the defendant.

We affirm the judgment of the trial court in its grant of judgment for past child support and in its denial of recovery of expenses as costs under Rule 170. We sever and reverse and remand the case upon the issue of reasonable amount to be allowed plaintiff as attorney’s fees incident to obtaining relief in behalf of defendant’s child and upon the issue of the defendant’s obligation in relation to future child support.

All costs of appeal are assessed against the defendant.


author: COLEMAN, Chief Justice.

text:
    F. Warren HICKS, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 16434.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    June 5, 1975.
    Rehearing Denied July 10, 1975.

      Homer T. Bouldin, F. Warren Hicks, Houston, for appellant.
    Jonathan Day, City Atty., Fred Spence, Senior Asst. City Atty., Houston, for appel-lee.
   COLEMAN, Chief Justice.

This is an action in trespass to try title, the purpose of which is to establish that the plaintiff’s title is free of an easement for street purposes. The plaintiff’s petition also contained a count seeking to recover certain funds deposited with the City of Houston. After a trial to a jury the trial court entered a take nothing judgment on the action in trespass to try title, but ordered that the plaintiff recover the money at issue. The appeal is restricted to the trespass to try title action.

In 1906 a plat of the E. C. Crawford Addition was filed in the Map Records of Harris County, Texas. The various streets shown on said plat were dedicated to public use. A street two blocks in length, referred to herein as Sul Ross Street, was so dedicated. The land involved in this suit is that portion of Sul Ross Street which extends from Bammel Lane east to Second Avenue and lies between Blocks 15 and 16 of the Crawford Addition. The land covered by this easement has never been used as a street or graded, paved or otherwise prepared for street purposes. The plaintiff contends that he is the owner of the land underlying the easement shown on the plat and that said easement has been abandoned for public street purposes by said City. The City contends that, while it began the process of abandonment in accordance with its charter and ordinances, a determination was reached not to complete the abandonment, and that as a consequence the easement was not abandoned and the City retains title to the easement as trustee for the public.

On October 8, 1970, through their attorney, F. Warren Hicks and Livingston Kos-berg by letter in which the representation was made that they were the owners of the property adjacent to the portion of the street involved in this suit requested the City to abandon the easement for public street purposes. The letter was referred to Mr. Earl J. Martin, Director of Real Estate, for investigation. On November 17, 1970 Mr. Martin reported to the Mayor that the request had been reviewed by the Joint Referral Committee and “inasmuch as Sul Ross is not a through street and there are no city plans for its future use as such” recommended that the easement be abandoned and sold to the abutting owners “in accordance with current City policy” subject to the concurrence of the privately owned utility companies; that the property be appraised by two independent real estate appraisers; and that the Real Estate Department and the City Attorney be authorized to take the necessary actions. On November 24, 1970 the City Council, by motion, adopted the recommendation of the Joint Referral Committee that the property in question “be abandoned and sold to the abutting owners in accordance with current City policy, subject to the concurrence of the privately owned utility companies, and that Mr. C. H. Hurlock, Jr. and Mr. Clyde D. Gillespie be and they are hereby appointed to appraise said property, inasmuch as the value of said property exceeds $5,000.00, and the Director of Real Estate Department and the City Attorney be and they are hereby authorized to take the necessary action, accordingly, inasmuch as Sul Ross is not a through street and there are no City plans for its future use as such.”

The appraisals were made and on June 25, 1971 Mr. Martin wrote Mr. Bouldin informing him that the City council has authorized “this department and the City Attorney to prepare the necessary papers in accordance with current City policy. This letter is the City’s offer to consummate the transaction on the basis of a consideration of $21,375.00.” The letter further stated that if the City’s offer was acceptable the petitioners should so state by letter and deposit the required amount of money which would be held in escrow pending preparation and delivery of the executed instruments of conveyance. The sum of money required was deposited with the City and letters were secured from the private utility companies establishing that these companies had no need for the easements, the last letter being received on September 21, 1971.

On February 24,1971, Mr. Hicks executed an option for the sale of a portion of his property to Mr. Jack Finney. On May 17, 1971 Block 15 was sold to John R. Debobbin, Trustee, by Mr. Hicks and on May 24, 1971 he sold and conveyed Block 16 to Jack Fin-ney.

The property conveyed to Mr. Finney was described as follows:

“Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11, Block 16 Crawford Addition, Houston, Harris County, Texas, according to Map thereof of record in Volume 2, Page 12 of Harris County Map Records, which property excludes all of Sul Ross Street, and does not extend north of the lines of said Lots 8, 7, and 1, of Block 16 of Crawford Addition.”

The deed also provided that the conveyance was made and accepted subject to easements, if any, of record. The conveyance to Mr. Debobbin contained similar language. It must be noted that these deeds, as well as several deeds into Mr. Hicks, referred to the plat of record in the Harris County Map Records.

On July 27, 1971, plaintiffs’ attorney, Mr. Bouldin, wrote Mr. Earl Martin a letter in which he stated:

“A few days ago I received a telephone call from a man in your department advising that a letter from me or some attorney giving an opinion that F. Warren Hicks and Livingston Kosberg are the owners of the land adjacent to the above captioned land is required.
“Upon sufficient investigation I gave you my opinion that Livingston Kosberg is the owner of the adjacent land as previously shown by plats and letters from me which I sent you.”

The letter then named the lots which Mr. Hicks had owned and had conveyed, and the City was informed by the letter that Mr. Hicks had retained title to the land underneath the easement. Mr. Martin testified that when he learned that Mr. Hicks no longer owned the property adjacent to that which was proposed to be abandoned he halted the proceeding. Finally, on October 7, 1971, Mr. Bouldin wrote Mr. Martin requesting return of the money which he had deposited for his clients with the City. The money was not returned and this suit ensued.

The plaintiff does not seek to force the City to abandoned the street and issue a deed to him as provided by the City ordinance. He contends that the easement was abandoned by the action of the City Council in passing the motion of November 24,1970, combined with the fact that the street was never opened and that the easement had been unused for many years. Section 2 — 7 of the Houston Code of Ordinances, entitled “Abandonment of Streets”, provides:

“The following requirements shall be followed upon the abandonment of any public street, as distinguished from an alley or easement;
“(1) . . .
“(2) If the street in question is a dedicated street in which the City owns only an easement for street purposes and the abutting land owners or persons who do not fall in the class described in subsection (1) above, then the City, upon abandonment of the street, will deliver a quitclaim deed to such abutting owners upon payment of one-half (½) of the appraised market value of the land covered by the street, such market value to be fixed by the City, the determination of the city council as to such market value being final.”

Section 2-8 of the Houston Code, entitled “Abandonment of Easements”, reads:

“Upon the abandonment of utility easements, drainage easements, and miscellaneous easements of like type, the city council shall, in such cases, pass an ordinance vacating, closing and abandoning such easement and in such ordinance, shall recite that the city thereby quitclaims its interest in and to the land covered by such easement to the owners of the fee simple title, whoever such owners might be. The city will not prepare or execute any quitclaim deed to any particular person or persons.”

Section 2(b) of Article II of the Houston City Charter reads:

“The city shall have all powers that are or hereafter may be granted to municipalities by the Constitution or laws of Texas; and all such powers, whether expressed or implied, shall be exercised and enforced in the manner prescribed by this Charter, or when not prescribed herein in such manner as shall be provided by ordinance or resolution of the council.”

Article VII, Section 9 of the Charter provides:

“In addition to the powers already possessed by it, the City of Houston shall have the power to lease any real estate or interest therein, mineral or otherwise, owned by it. The City Council shall not have the power to sell or dispose of any real estate or interest therein, or make any mineral lease of land belonging to the City, except by ordinance adopted by a vote of two-thirds of the Council

The provisions of the Houston Code which were offered into evidence do not establish a procedure for the abandonment of a street or street easement. Section 2 — 7 of the Code sets out the requirements to be followed “upon the abandonment of any public street . . .” The subsequent provisions deal with a sale, upon abandonment. Section 2-8 dealing with the abandonment of utility, drainage and miscellaneous easements “of like type” requires that the city council pass an ordinance va-eating, closing and abandoning such easement. There was testimony at the trial of this case concerning the policy which had been followed by the City in considering petitions for the abandonment of street easements. Mr. Martin testified that when such a petition was received the matter was reviewed by a committee comprised of the Director of City Planning, who determines whether or not the streets will be needed in the future for traffic circulation, the Director of the Public Works Department, to determine if there is any present plan for using the street for utilities or any present plans for opening the street, the Director of Traffic, to determine whether or not the street might be needed for future traffic circulation requirements, the Director of Real Estate, for the purpose of seeing that the policy of abandonment is followed, and finally a representative of the City Legal Department. This committee prepares a recommendation to be presented to the City Council. If the City Council determines that the easement should be abandoned and authorizes the Real Estate Department to proceed in accordance with current City policy, the Real Estate Department then requests the Public Works Department to prepare a survey of the easement to be abandoned. The Real Estate Department then checks with the Fire Department and the Police Department to see if they have any objections to the abandonment of that particular street, and further checks to determine who owns the property adjacent to the street. In the meantime a staff appraiser of the Real Estate Department conducts an appraisal of the property which must be reviewed by the chief of that section. If the value is found to be in excess of $5,000.00, then the Real Estate Department recommends to the City Council that two independent appraisers be employed to appraise the property. The City’s representative in the negotiations is the right of way agent. He usually has certain requirements to be met by the petitioner, one of which is that the petitioner furnish an attorney’s opinion that the petitioner is in fact the abutting owner on the portion of the street to be abandoned. When the appraisals are received they are submitted to the Real Estate Department for their review and a recommended price for the abandonment is approved. Thereupon the petitioner is advised in writing of the City’s offer to proceed with the abandonment upon the payment of a sum of money based upon the appraised value. If the City’s offer is accepted in writing and the money required is deposited with the City, the Real Estate Department then prepares a letter of transmittal to the City’s legal department transmitting copies of the various items in the file. The City Attorney’s office then prepares the necessary instruments to effect abandonment of that particular street easement. The City Attorney’s office then prepares the necessary instruments and ordinance and once these instruments are executed and returned tp the Real Estate Department, the instruments are mailed to the petitioner and the City comptroller is advised that the matter has been closed and that the money can be credited or transferred to the proper accounts. He further testified that in regard to the property in controversy no city ordinance was passed abandoning the property and no quitclaim deed or other conveyance was executed. Mr. Martin further testified that he stopped the proceedings when it came to his attention that the petitioner was no longer the abutting property owner.

The trial court submitted the following issue to the jury:

“Do you find from a preponderance of the evidence that the City of Houston ever actually abandoned the 10,000 square feet of land in dispute?”

To this issue the jury answered: “We do not.” A motion to disregard this answer to the special issue was made and overruled by the court.

It has been stated as the general rule that where a municipal council is given power to legislate in regard to a particular subject matter, and the statute or charter is silent as to the mode in which the power shall be exercised, an enactment by the municipal council is valid whether it is in the form of an ordinance or resolution, even if the enactment is of a general permanent nature. However, where the governing statute or charter requires, either expressly or by necessary implication, that the power be exercised by ordinance, it cannot ordinarily be exercised by resolution. 56 Amer. Jur.2d, Municipal Corporations, Sec. 152, p. 205. It is also stated that in substance there is no difference between a resolution, order, and motion. 56 Amer.Jur.2d, Municipal Corporations, Sec. 344, p. 370.

In a case involving a private easement it was stated that the question of abandonment is one of fact to be determined in each case from all the evidence in the record, and that an essential element of abandonment is the intention to abandon and such intention must be shown by clear and satisfactory evidence. The court further stated that abandonment may be shown by circumstances but the circumstances must disclose some definite acts showing intention to abandon. The non-use of a right is not sufficient of itself to show abandonment, but if the failure to use is long continued and unexplained, it gives rise to an inference of intention to abandon. City of Anson v. Arnett, 250 S.W.2d 450 (Tex.Civ.App.—Eastland 1952, writ ref’d n. r. e.).

The principles quoted above are also supported by the case of McCraw v. City of Dallas, 420 S.W.2d 793 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.). After reciting the accepted rule of law that mere non-user of an easement will not extinguish it, the Supreme Court of Texas, in Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950), said:

“The record reflects that since the filing of the plat in 1909 the county has opened up certain roads on the tract of land, and has graded some of them and one at least has been paved. The record also shows that the respondent has used a part of this roadway in question as a means to get from place to place on his farm, and that the ditch rider for the present irrigation system on occasion has come thru the gate maintained by respondent in the fence across the roadway . As far as this record shows, the lands within the boundaries of this tract are still sold and described with reference to the plat as recorded, and there has been no revocation of the dedicatory plat. This evidence most certainly does not show the use for which the property was dedicated to be ‘impossible, or so highly improbable as to be practically impossible,’ or that the object of the use for which the property was dedicated has wholly failed as is required for an abandonment of the roads to arise. The facts regarding the alleged abandonment are undisputed. Therefore no jury question arises, but only a question of law . We hold there has been no abandonment of the roadway in question.”

The evidence in this case shows that many of the dedicated streets in this subdivision are part of the Houston City street system. There is no evidence that the dedication has been revoked. Lots are sold by reference to the recorded plat. The plaintiff sold the land on both sides of this particular section of Sul Ross Street by its lot and block number as shown on the dedicated plat. The jury found that the City has not actually abandoned the street.

A city may vacate and close a street or alley on the petition of an abutter for his benefit where the vacation is also for the benefit of the municipality at large. City of San Antonio v. Olivares, 505 S.W.2d 526 (Tex.1974). The conveyance of land by reference to a map or plat, upon which lots and streets are laid out results in the purchaser or one holding under him, acquiring by implication a private easement in the alleys or streets shown on the plat. This private easement survives the vacation or abandonment of the street by the city. City of Houston v. Fox, 444 S.W.2d 591 (Tex.1969).

In City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (1956), the Supreme Court said:

“This Court has also held that the legal title to city streets belongs to the state, which has full control and authority over them, and the cities exercise only such control and authority as has been delegated to them by the Home Rule Amendment to the Texas Constitution, art. 11, § 5, or by the legislature .
“The city controls the streets as trustee for the public. It has no proprietary title nor right to exclusive possession. Its right of control is restricted by its trusteeship. It has the duty to maintain the streets and keep them open and free of obstruction. It can close a street only in the public interest and even then not over the objection of an abutting property owner with a coexisting private easement therein. Kahn v. City of Houston, Tex.Com.App., 121 Tex. 293, 48 S.W.2d 595; Dallas Cotton Mills v. Industrial Co., Tex. Com.App., 296 S.W. 503; 39 Tex.Jur., 603-605.”

In City of Fort Worth v. Taylor, 162 Tex. 341, 346 S.W.2d 792 (1961), the Supreme Court stated:

“Although title to the public easement in dedicated streets and alleys rests in the state, the Legislature has granted to at least some of the cities and towns of Texas exclusive dominion over the public ways within their respective corporate limits ... By the express terms of Article 1175, a home rule city such as petitioner is authorized to regulate and control, . . . vacate, abandon and close, any street, alley, avenue or boulevard. Petitioner may prosecute in its own name suits to require the removal of obstructions from a street, and a necessary concomitant of that power is authority to defend against a claim that the land is owned by a private individual free and clear of any easement in favor of the public. In the absence of fraud or collusion, a judgment adverse to the municipality in such a proceeding also binds the public as such, . . ., and it is not necessary for the city to sue or be sued as agent of the state or trustee for the public before the existence vel non of a public easement can be put in issue.”

In Blair v. Astin, 10 S.W.2d 1054 (Tex.Civ.App.—Galveston 1928, writ ref’d), the court held that although the City of Houston had passed no ordinance or resolution closing a certain street, it could by deed relinquish its public easement for street purposes.

In Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966), the court said:

“It is well settled that ‘if one owning land, exhibit a map of it, on which a street is defined, though not as yet opened, and building lots be sold by him, with reference to a front or rear on that street, this operates as an immediate dedication of the street; and the purchasers of lots have a right to have the street thrown open forever.’
“. . . and Section 18 [Article 1175] grants the power to vacate and close streets when such action is in the best interest of the public. This last power is restricted by Article 4646a, supra, which allows abutting owners to enjoin such action if they have not released any claim for damages they might have or have not been paid compensation through a condemnation proceeding. . . .”

The motion passed by the City Council of the City of Houston on November 24, 1970 evidenced an intention to abandon the street “in accordance with its policy.” The testimony establishes that before the City would formally abandon its easement under its usual policy certain additional investigation would be made in consideration of the restriction on its power by reason of Article 4646a, Vernon’s Annotated Civil Statutes. One of these procedures was to ascertain whether or not the abutting property owners desired the abandonment of the easement. The City discovered that Mr. Jack Finney had not given his consent to the abandonment of the easement. They also discovered that Mr. Livingston Kosberg and Mr. Sidney L. Shlenker claimed title to land abutting on Sul Ross Street and objected to its being vacated by the City of Houston. While Mr. Hicks attempted to reserve the fee title to the land underlying the easement in his conveyance to Mr. Finney, nevertheless, Mr. Finney was an abutting owner. We conclude that the City did not intend to, and did not, abandon the easement in question. There is evidence to support the conclusion that the abandonment was to be authorized by ordinance and evidenced by a quitclaim deed. The ordinance was not passed and the quitclaim deed was not executed and delivered.

The appellant offered no evidence to prove a regular chain of title from the State, or a common source of title. There is evidence that the lots abutting on Sul Ross Street, the basis of his claim of title to the fee underlying the street, were conveyed to him by general warranty deeds, subject to the easements of record, which were recorded, and that he had paid the taxes on these lots. There is evidence that he conveyed these lots and that at least one of his grantors had entered into possession of the lots and erected improvements thereon. There is no testimony that Mr. Hicks, in person or by tenant, has entered on the lots involved in this case and made any use of them or erected any improvements on them. There is no testimony establishing actual possession by Mr. Hicks. The evidence is insufficient to establish prior possession or title by limitation, as a matter of law. Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243 (Tex.1964); Kincheon v. Killian, 454 S.W.2d 878 (Tex.Civ.App.—Austin 1970, no writ hist.); Pettis v. Achille, 313 S.W.2d 348 (Tex.Civ.App.— Houston [1st] 1958, n. w. h.); Garcia v. Garza, 161 S.W.2d 297 (Tex.Civ.App.—San Antonio 1942, n. w. h.).

Judgment affirmed.


author: KEITH, Justice.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Ronald Douglas EDELMAN et al., Appellees.
    No. 7710.
    Court of Civil Appeals of Texas, Beaumont.
    May 29, 1975.
    Rehearing Denied July 10, 1975.

      John J. McKay, Austin, for appellant.
    J. D. Maroney, Ras Redwine, Harley R. Clark, Jr., Donald W. Raven, Austin, for appellees.
   KEITH, Justice.

The appeal is from a declaratory judgment finding that plaintiff, Government Employees Insurance Company (“GEICO”), was obligated to defend the driver of an automobile owned by the son of one of its insureds. A short statement is necessary to place the questions in proper perspective.

1. Statement

A. H. Edburg, Jr. (“Edburg”) owned two Oldsmobile cars while his 19-year-old son, Andrew Edburg (“Andy”), owned and had legal title to a 1970 Chevrolet Camaro. All three cars were covered in a single Texas Standard Family Automobile policy issued to Edburg by GEICO. Andy was a resident of his father’s household at all time material to this suit.

On December 26, 1970, Andy was a passenger in his automobile which was then being driven by his 17-year-old friend, Ronnie Edelman (“Ronnie”), when it was in a collision with a car being operated by Joseph Francis Perrin and occupied by his wife and daughter. Each of the Perrins received bodily injury and subsequently instituted suit in Williamson County against Edburg and Andy for their damages. Ronnie was described as the driver of Andy’s car at the time of the accident. GEICO sought a declaration in this suit that it was not obligated to defend Ronnie or pay any judgment rendered against him in favor of the Perrins arising out of the accident. Trial was to the court which denied GEICO all relief it sought.

Edburg had signed Andy’s note at the bank when the car was purchased and allowed Andy to use his gasoline charge card in operating the car. Andy, however, was to be responsible for the payments on the car and for its repairs. Edburg testified that Andy had the right to use the car “[wjithin our family policy of who drives cars,” the policy being that “no one outside of our immediate family should drive cars that are covered by our insurance.” He said he told Andy that he “did not want someone driving the family automobiles outside of the family circle.” He knew of only two instances where someone other than Andy had driven: a Gene Stieler, an adult acquaintance of Edburg had driven it once in his presence to test the old fashioned stick shift and manual clutch. Stieler was a good driver and Edburg had no objection to his use of the car.

The other instance was when he saw a youth, James Turpin, driving Andy’s car. He asked Andy about this and said, “Again I reiterated the policy of not letting others outside the family drive the cars.”

Andy said that he had let three boys drive his Camaro: a boy named Gilbert, the Turpin instance noted above, and Ronnie on the occasion in question. He stated that his father “specifically objected to anyone else driving my car.” Other than the Turpin instance, when Edburg saw the outsider driving Andy’s car, no knowledge of the violation of his instructions was brought home to Edburg by any other testimony.

The trial court filed extensive findings of fact among which were these: Ronnie had permission from Andy to drive at the time and on the occasion in question; the Perrins had alleged that at the time of the accident Ronnie and Andy were on a joint venture; the Perrins had alleged that Andy had negligently entrusted the car to Ronnie; the Perrins had alleged that Ronnie’s negligence was a proximate cause of the collision and their injuries and damages; Andy was a resident of the same household as the named insured, Edburg; “[tjhere was implied permission on the part of the named insured (Mr. A. H. Edburg, Jr.) to Andrew H. Edburg [Andy] for others to operate the car in question”; there was implied permission for Ronnie to operate the car at the time and on the occasion in question and his actual operation was within the scope of his permission.

2. Opinion

We quote the definitions applicable to Part I of the policy — relating to liability:

“Persons Insured: The following are insureds under Part I:
(a) with respect to the owned automobile,
(1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above.”

The trial court filed three conclusions of law stating in essence his view of the law applicable to the facts set out earlier and these are quoted in the margin.

GEICO does not challenge the determination that it is obligated to defend Andy since he was an insured under Part 1(a)(1) of the policy, having been a resident of the insured’s (Edburg’s) household at the time of the accident. Thus, Conclusion of Law No. One requires no further discussion.

A.Actual vermission

In his first finding of fact, the trial court found that Ronnie (the driver) had permission from Andy (the owner) to drive the car at the time and on the occasion in question. This finding, while absolutely true and undisputed, is not determinative of any question presented by this record.

The general rule is that permission cannot be given by one who is not a named insured, even though he is the owner of the vehicle. 45 C.J.S. Insurance § 829, at 900 (1946); 7 Blashiield, Automobile Law and Practice § 315.9 at 600 (1966); 7 Appleman, Insurance Law and Practice § 4358 at 264 (1942).

There is no pretense that Ronnie had actual permission from Edburg to drive the car at the time and place in question.

B.Joint venture

In his second finding of fact, the trial court found that the Perrins had charged in their Williamson County damage suit that, at the time and place and on the occasion in question, Ronnie and Andy were on a joint venture. Again, this finding is upon undisputed evidence; but, like the first, is legally immaterial. Since the decision of Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974), the doctrine of joint venture can be invoked only by showing of a “business or pecuniary purpose” in the venture. These two boys, under our unchallenged record, were out joy riding and business or pecuniary purpose was the one thing farthest from their minds.

Further, under Kennedy v. Kennedy, 505 S.W.2d 393, 395 (Tex.Civ.App.—Austin 1974, no writ), and cases cited, “[the] negligence of one member of a joint enterprise may not be imputed to another member of the enterprise, if a minor.”

C.Implied permission

Findings three, four, six, and seven are all tied to and form an integral part of the trial court’s finding that Ronnie had implied permission to drive Andy’s car at the time and on the occasion in question. We summarize these findings: No. 3, the Per-rins had alleged that Andy negligently entrusted the car to Ronnie; No. 4, the Per-rins charged that the negligence of Ronnie was a proximate cause of the collision and their injuries and damages; No. 6, there was implied permission on the part of the named insured, Edburg, to Andy for others to operate the car; and No. 7, there was implied permission on the part of the named insured for Ronnie to operate the car “at the time and on the occasion in question, and Ronald D. Edelman’s actual operation thereof was within the scope of such permission.”

In Royal Indemnity Company v. H. E. Abbott & Sons, Inc., 399 S.W.2d 343, 345 (Tex.1966), the Court addressed itself to the issue of implied permission, saying:

“V/hile express permission must be affirmatively stated, implied permission may be inferred from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent. It is usually shown by usage and practice of the parties over a period of time preceding the occasion on which the automobile was being used. 7 Appleman, Insurance Law and Practice, § 4365.”

The general rule with reference to a second permittee is set forth in Couch on Insurance, 2d Ed. 1964, § 45:409 at 406:

“If the owner of the car expressly forbids the permittee to lend his car to another, but the permittee nevertheless allows a second permittee to drive the car in violation of the named insured’s express orders, the insurer is not liable while the second permittee is driving, on the theory that a prohibition against delegation is a restriction upon the use of the vehicle. Otherwise stated, where the insured expressly prohibits the operation of a vehicle by any person other than the permittee, a second permittee does not have permission and is not an omnibus insured. Even where the permittee has exclusive use of the car which was bought for him by the named insured, the latter may expressly forbid the use of the car by anyone else and such prohibition will preclude recovery by one who borrowed the car from the permittee.” There is no evidence in this record which

would lend any support to a finding that there was a “mutual acquiescence or lack of objection signifying consent” on the part of Edburg. Indeed, insofar as is shown by this record, Edburg never even knew that Ronnie had ever driven the vehicle before the occasion of the accident. Ronnie did not succeed in showing that Edburg had any knowledge of his operation of the vehicle on any prior occasion, much less that implied permission had been “shown by usage and practice of the parties [Edburg and Ronnie] over a period of time preceding the occasion * * * It

Edburg was, of course, an interested party and the trial court was not required to accept his testimony as binding upon the court. But, as was said in Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162, 165 (1961), “his testimony in that respect is not evidence that the opposite of what he said is true.”

The finding that Ronnie had implied permission to operate the car at the time and place of the accident is without support in the evidence. So holding, after having carefully reviewed the evidence most favorable to the finding, we sustain GEICO’s fourth point of error quoted in the margin. See, Tristan v. Government Employees Insurance Co., 489 S.W.2d 365, 367 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.), and authorities therein cited.

Having found error requiring the reversal of the judgment of the trial court, we now render the judgment which should have been rendered in the court below. The judgment of the trial court is reversed and judgment now rendered that GEICO is not obligated (by the terms of the policy involved herein) to defend Ronnie in the Williamson County suit of the Perrins.

Reversed and rendered.

      . “1. Andrew H. Edburg is an insured under Part 1(a)(1) of the policy in question since he was a resident of the named insured’s household at the time and on the occasion in question.
      “2. In the original case, styled Joseph Frances Perrin, et al. vs. Ronald Douglas Edelman and numbered 13,975 in the 26th District Court of Williamson County, Texas, the Perrins have alleged acts or omissions (negligent entrustment) on the part of Andrew H. Edburg, an insured. Under Part 1(a)(3) of the policy in question, coverage is afforded to any other person (Edelman— driver) but only with respect to his liability because of acts or omissions (pled by the Perrins against Andrew H. Edburg in the original case) of an insured (Andrew H. Ed-burg) under Part 1(a)(1). Under Texas law, insurance companies have a duty to defend based on the allegations of the pleadings even if untrue. The policy in question so promises in Coverage A & B. Therefore, Government Employees Insurance Company has a duty to defend Ronald D. Edelman under Part 1(a)(3) of the policy in question, and Ronald D. Edelman is an insured under that Part 1(a)(3) with respect to the occurrence in question.
      “3. Under Texas law, implied permission by a named insured creates coverage for the user. Therefore, Government Employees Insurance Company has a duty to defend Ronald D. Edelman under Part 1(a)(2) of the policy in question, and Ronald D. Edelman is an insured under that Part 1(a)(2) with respect to the occurrence in question.”

      . The Perrins alleged that Andy and Ronnie were “on a joint venture, as that term is used in law, and they are jointly and severally responsible to plaintiffs for their injuries and damages.”

      . Number five: Andy was a resident of Ed-burg’s household at the time of the accident is undisputed and forms no basis for the finding of implied permission.

      .In citing Appleman § 4365, our Supreme Court effectively dissociated itself from the so-called “Hell or High Water Rule” discussed in the next section of Appleman § 4366, which reaches a different result.

      . “There is no evidence to sustain the Trial Court’s findings that the named insured, A. H. Edburg, Jr. gave his implied permission to Andrew H. Edburg (his son) for others to operate the car in question and that A. D. Edburg, Jr. gave his implied permission to Ronald Edelman to operate the car.”


author: ROBINSON, Justice.

text:
    In the Matter of B. D. A.
    No. 8572.
    Court of Civil Appeals of Texas, Amarillo.
    June 16, 1975.

      Garry 0. Smith, Lubbock, for appellant.
    Harold Phelan, County Atty., Levelland, for appellee.
   ROBINSON, Justice.

The trial court found that appellant, a fourteen year old boy, had engaged in delinquent conduct by theft of an automobile and committed him to the Texas Youth Council. Appellant contends that his mother’s testimony that he told her that he had taken the car was improperly admitted.

By his brief appellant contends that the admission by him was made after his apprehension and while he was being detained. Appellee did not file a brief. We are authorized to accept the statement in appellant’s brief that appellant was in custody at the time the admission was made as correct, since it was not challenged by the opposing party. Rule 419, Texas Rules of Civil Procedure. However, we have examined the record from the trial court including the statement of facts. We find that it does not show that the appellant was in custody at the time the statement was made.

The statement of facts shows, and appellant’s brief states, that appellant’s counsel objected to the testimony in question on the ground of hearsay. The trial court admitted the testimony over that objection. On appeal appellant contends that the statement was made while he was in custody, did not meet the standards of art. 38.22, Vernon’s Ann.Tex.Code Crim.Proc.Ann. (1965), and, thus, was inadmissible under the holding of Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973).

In order to complain about the admissibility of a confession, there must be an objection in the trial court, and the objection must call the attention of the trial court to the particular complaint raised on appeal. Ex Parte Bagley (Tex.Cr.App.1974) 509 S.W.2d 332. The objection that testimony is hearsay does not suggest the objection that it does not comply with the requirements of art. 38.22. On the trial of the case before us, the appellant did not make the objection being urged on appeal. We, therefore, overrule appellant’s points of error.

The judgment of the trial court is affirmed.