author: PHILLIPS, Chief Judge.

text:
    OUR FAIR LADY HEALTH RESORT, Appellant, v. Paula MILLER, Appellee.
    No. 12695.
    Court of Civil Appeals of Texas, Austin.
    March 15, 1978.

      Dale E. Muller, Austin, for appellant.
    Stephan L. Sheets, Grimes & Sheets, Round Rock, for appellee.
   PHILLIPS, Chief Judge.

Appellant, as plaintiff below, brought this suit to recover the unpaid balance due on an installment contract executed by ap-pellee. Appellee counterclaimed alleging that appellant had violated the Deceptive Trade Practice-Consumer Protection Act. Trial was to a jury which found that appellant had engaged in deceptive trade practices and that appellee was adversely affected thereby. After judgment was entered on the verdict, appellant duly perfected its appeal to this Court.

We affirm.

The record discloses that appellee visited appellant’s health spa on Tuesday, January 28, 1975, for the purpose of investigating the possibilities of enrolling in exercise classes. An agent of appellant conducted a tour of the facilities and prepared a contract for appellee to sign.

After examining the contract prepared by appellant’s agent, appellee stated that she could not enter into an agreement for the amount of money involved without first consulting with her husband. At this point appellant’s agent represented to appellee that she could go ahead and sign the contract immediately, but that it would not take effect until she had had a chance to discuss it with her husband, and if appellee called by Friday, January 31, 1975, to say she had changed her mind, the contract would be torn up and voided.

During the three-day period from Tuesday to Friday, appellee did in fact change her mind regarding the contract, and contacted appellant’s agent by telephone on the morning of Friday, January 31, 1975, for the purpose of voiding the contract.

However, even though this was within the period of time agreed upon, appellant’s agent informed appellee that the contract had already been “sent in.”

Over the course of the next several days, appellee made several unsuccessful attempts to meet with the manager of the health spa in an effort to resolve the conflict.

Several weeks later appellee received a payment book from a bank in Austin and, believing she had no other recourse, made a few payments. Some time thereafter, ap-pellee depleted her savings and stopped making payments.

The evidence discloses that appellee’s general concern over the contract and the related financial obligations resulted in her experiencing physical and mental pain and suffering. As a result, appellee sought and received medical care.

As we stated above, trial was to a jury which answered the special issues submitted in favor of appellee as the court rendered judgment on this verdict.

Appellant is before this Court on three points of error, all of which we overrule, the first being: the error of the trial court in granting judgment on appellee’s counterclaim because of lack of jurisdiction.

Appellant contends that by statute, the County Court at Law Number Three of Travis County, Texas, is limited to actions in which the amount in controversy is $5,000 or less. It further contends that when appellee filed her counterclaim alleging that appellant violated the Texas Deceptive Trade Practices Act, the counterclaim placed an amount in controversy exceeding the court’s jurisdictional limit, and, therefore, the court should have dismissed the case.

We do not agree. Jurisdiction is determined by the amount in controversy at the time of the filing of the pleadings. Hudson v. Norwood, 147 S.W.2d 826 (Tex.Civ.App.1941, writ dism’d jdgmt. cor.); Guerra v. Weatherly, 291 S.W.2d 493 (Tex.Civ.App.1956, no writ). Suit was originally filed in the county court for $3,724:00, plus attorney’s fees. This was well within the jurisdictional amount of the trial court.

Nor are we impressed with appellant’s argument that appellee’s recovery through counterclaim expands the amount in controversy so as to oust the county court of jurisdiction. Once jurisdiction is lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat the jurisdiction. Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (1924); Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368 (1962); Davis v. Spraggins, 449 S.W.2d 80 (Tex.Civ.App.1969, writ ref’d n.r. e.).

Appellant’s second point is the error of the trial court in granting judgment for appellee because she was not entitled to bring suit under the Texas Deceptive Trade Practice-Consumer Protection Act.

Appellant contends that by making several payments to the health spa under the terms of the contract, appellee has ratified the contract. The fallacy here is that for appellant to establish ratification as a defense, it must prove such by competent evidence, submit a proper issue to the jury, and obtain an affirmative finding thereon. Texas R.Civ.P. 279; Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529 (Tex.1965); Rutherford v. Page, Southerland & Page, 429 S.W.2d 602 (Tex.Civ.App.1968, writ ref’d n.r.e.). Unless ratification was conclusively established, which it was not, appellant waived the defense by not requesting its submission. Glens Falls Insurance Co. v. Peters, supra; Rutherford v. Page, Southerland & Page, supra.

As stated above, appellee brought a counterclaim alleging that appellant had violated the Texas Deceptive Trade Practice-Consumer Protection Act § 17.46(a) by “false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.”

However, appellant contends that § 17.50 requires that a consumer must have been “adversely affected” by the “use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subchapter”; and that such was not the case. We do not agree. The jury found that appellee was adversely affected by the deceptive trade practices of appellant and we hold that there is ample evidence to support this finding.

Finally, appellant contends that the trial court erred in admitting evidence of an extraneous oral representation in violation of the parol evidence rule.

As a general rule, extrinsic evidence is inadmissible to vary, add to, or contradict the terms of a valid written instrument that on its face is complete and unambiguous. However, there are exceptions to this rule and, under the facts of this case, extrinsic evidence was properly admitted.

Appellee testified that she signed the contract on Tuesday, January 28, 1975, and that appellant’s agent represented to her that the contract would not be effective until the lapse of a three-day period during which time appellee could cancel the contract. Parol evidence is admissible to show that a written contract did not exist. Rasey v. Perryman, 262 S.W.2d 761 (Tex.Civ.App.1953, no writ); 23 Tex.Jur.2d Evidence § 342 (1961).

Parol evidence is also admissible to show that the parties did not intend the contract to take effect immediately. Burke v. Dulaney, 153 U.S. 228, 14 S.Ct. 816, 38 L.Ed. 698 (1894); Baker v. Baker, 143 Tex. 191, 183 S.W.2d 724 (1944).

The judgment of the trial court is in all things affirmed.

      . Tex.Bus. & Comm. Code Ann. Ch. 17 (Supp.1978).

      . Although the judgment does not dispose of appellant’s claim on the note, it will be presumed for purposes of appeal that the judgment entered is a final judgment. See North East Independent School Dist. v. Aldridge, 400 S.W.2d 893 (Tex.1966).

      . Tex.Rev.Civ.Stat.Ann. arts. 1970a, 1970-324a. 1.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Lillian B. CUNNINGHAM et al., Appellants, v. Henry OTT et al., Appellees.
    No. 12699.
    Court of Civil Appeals of Texas, Austin.
    March 15, 1978.

      James T. Odiorne, Bastrop, for appellants.
    Robert E. Jenkins, Jr., Kershaw & Jenkins, Bastrop, for appellees.
   PHILLIPS, Chief Justice.

The land in controversy is a narrow strip of varying width along a meandering, wet-weather creek. As shown by the stipulation of the parties, the land lies between the center line of the creek and an old fence on appellants’ side of the creek. The parties also stipulated that the center line of the creek is the record boundary between their respective properties.

Suit was brought by appellees when appellants, who contend that they had the consent of the appellees, attempted to straighten the fence line as it was replaced. After removing brush and the old fence, appellants constructed a new fence which enclosed .31 acre of the land belonging to appellees on appellees’ side of the boundary line of record.

Trial was to a jury which found, among other findings, that appellees had matured title to the land between the old fence and the creek under the ten and twenty-five year statutes of limitation. The court then entered judgment vesting title in appellees.

We reverse the judgment and render judgment as hereinafter indicated.

Appellants are before this Court contending that the trial court erred by entering judgment on the jury finding that appellees had matured limitation title in the strip of land in question as there was no evidence to support that finding. We sustain this point.

In addition to the finding described above, the jury found that there had been no oral agreement for straightening the fence line; no oral agreement to exchange property on either side of the fence; no oral agreement on the part of appellees to sell appellants property they may have claimed on appellants’ side of the creek; no consideration flowing from appellants to appellees for purchase of any land; appellants did not make any valuable improvements on the land in question; and finally, that ap-pellees suffered no monetary loss from appellants’ cutting timber along the fence line.

It is well settled that when one enters into possession of land under a deed, his possession is referable to the deed, is presumed to be in conformity with it, and is confined to the limits thereof. Therefore, in order for a vendee to acquire title by adverse possession of additional or adjoining land outside the limits of the boundaries in his conveyance, he must have actual possession of such additional land of such character as of itself will give notice of an excessive adverse possession and mature into title after the statutory period. Harmon v. Overton Refining Co., 130 Tex. 365, 109 S.W.2d 457 (1937).

In the instant case there was no such possession. It is without dispute in the evidence that had a fence been built down the center of the creek bed, which in fact was the common boundary line of the two tracts in question, the fence would have been washed away with the first heavy rainstorm. It is clear from the facts before us that the fence was located alongside the creek bed, on higher ground, for the convenience of the parties hereto and their predecessors in title.

Appellees place great emphasis on the fact that their cattle, and those of their predecessors in title, occasionally grazed upon the disputed acreage for in excess of twenty-five years. In our judgment this is not controlling. Due to the nature of the fence in question, the facts of this case bring it within the principle of law that when the disputed tract of land has been casually or incidentally enclosed with other land, especially when, as here, such other land is held by the possessor under deed, the incidental enclosure and the occasional grazing of the disputed tract by cattle straying from the titled land will not amount to such adverse and hostile possession and use as will support the statute of limitations. Osborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954); H. L. Brown and Associates, Inc. v. McMahon, 525 S.W.2d 553 (Tex.Civ.App.1975, no writ). See also this Court’s opinion in Georgetown Builders, Inc. v. Heirs of Tanksley, 498 S.W.2d 222 (Tex.Civ.App.1973, writ ref d n. r. e.).

Outside of the cattle grazing on the tract in question there is absolutely no evidence in the record that would have put appellants on notice that the appellees were holding the tract in open, hostile possession. Indeed, appellees continually paid taxes only on the tract described in their deed, but not on the additional land which is the subject of this suit.

Article 5515, V.C.S., provides that for the moving party to establish his claim through adverse possession, such possession must be “. . . actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” Such was not the case; therefore, we reverse that part of the judgment holding that appellees had matured a limitation title to the land in question, and render judgment that appel-lees take nothing by their suit.

Reversed and Rendered.

      . This case has been on appeal to this Court once before on matters not pertinent to the present appeal. Ott v. Cunningham, 533 S.W.2d 895 (Tex.Civ.App.1976).


author: SHANNON, Justice.

text:
    James DAVIS et al., Appellants, v. TRAVIS COUNTY CHILD WELFARE UNIT, Appellee.
    No. 12702.
    Court of Civil Appeals of Texas, Austin.
    March 15, 1978.

      Barbara Hines, Regina Lynn Rogoff, Legal Aid and Defender Society of Travis County, Austin, for appellants.
    Jed I. Oliver, Austin, for appellee.
   SHANNON, Justice.

This appeal concerns termination of parent-child relationships. Tex.Family Code Ann. § 15.02 (Supp.1978).

Appellee, Travis County Child Welfare Unit, filed suit in the district court of Travis County seeking termination of the parent-child relationship between .Kellie Wy-nell Duncan, aged four years, and her parents, Allen Duncan and appellant, Jane Duncan. Appellee also sought termination of the parent-child relationship between Lillian Davis, aged two years, and her parents, appellants James Davis and Jane Duncan. Allen Duncan, although served, made no appearance. Appellants, to the contrary, appeared in person and through counsel.

As grounds for termination, appellee alleged (1) that the parents engaged in conduct which endangered the physical or emotional well-being of the children, and (2) that the parents knowingly allowed the children to remain in conditions and surroundings which endangered the physical or emotional well-being of the children. Ap-pellee also alleged that termination of the parent-child relationship was in the best interest of the children.

After trial to the court, judgment was entered terminating the parent-child relationship between the girls and their parents. We will affirm that judgment.

Upon request, the district court filed thirty-three findings of fact and conclusions of law. The court found, among other things, that Jane Duncan and James Davis engaged in conduct which endangered the physical and emotional well-being of the children. The court also found that those persons knowingly allowed the children to remain in conditions and surroundings which endangered their physical and emotional well-being. In addition, the court determined that termination of the parental rights of Jane Duncan and James Davis to the children was in the best interest of the children.

Appellants attack the judgment by sixty-eight points of error. Point of error one complains that the court erred in failing to make a separate finding that each parent had knowingly allowed each child to remain in conditions or surroundings that endangered the physical or emotional well-being of each child. Point of error two is that the court erred in failing to make a separate finding that each parent engaged in conduct that endangered the physical or emotional well-being of each child. The points of error are overruled. Should a party deem the initial findings or conclusions of the court incomplete, incorrect, or overly general, he may request the court to make specified further, additional, or amended findings. Tex.R.Civ.P. 298; 4 McDonald, Texas Civil Practice § 16.07 (1971 rev. vol.). Examination of the transcript shows that appellants did not request the court to make further, additional, or amended findings, the absence of which is now the subject of complaint on appeal. Whatever complaint appellants may have had with respect to the over-generality of the court’s findings, was waived by their failure to request further findings.

The remaining sixty-six points of error attack the court’s termination of the parent-child relationships. Tex.Family Code Ann. § 15.02 (Supp.1978) empowers the court to grant a petition terminating the parent-child relationship upon the finding that:

“(1) the parent has:
“(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
“(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
“(K) . . . and in addition, the court further finds that
“(2) termination is in the best interest of the child.”

Appellants’ claim that the judgment is supported by no evidence or that the judgment is so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust. In determining whether there is any evidence to support the judgment, it is proper to consider only that evidence most favorable to the finding and disregard entirely that which is opposed to it or is contradictory in its nature. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). In reviewing factual sufficiency points of error the court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence so as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The melancholy plight of Kellie Duncan and Lillian Davis was brought to appellee’s attention in June of 1976. When Jennie Turner, a social worker, arrived at appellants’ quarters, a motel in Austin, she found Jane Duncan and the two children in a small and dirty room. Scattered about the room were piles of opened tin cans and used paper plates. Mrs. Duncan and the children were “quite dirty.” Lillian was asleep on a bare mattress. Mrs. Duncan had no control over her physical movements. She shook violently. When she tried to put her hand on her hip, she could not locate her hip. She attempted to light a cigarette, but found that task impossible. When Mrs. Duncan was asked a question, her mouth would open and move, but she could make no sound. Mrs. Duncan was completely incoherent and uncontrolled. In that connection, the evidence was that she could not control her bowel movements during the interview. The social worker observed that Kellie seemed to be caring for her mother. Mrs. Duncan finally succeeded in making known to the social worker that she had failed to take her medication and that such failure was the reason for her then physical condition.

The social worker observed that Kellie had bruises and small circular scars on her legs and a clearly defined belt mark between her shoulder blades. The social worker testified that Mrs. Duncan could not take care of herself or the children. In sum, the social worker testified that she had never before observed such a frightening situation for small children.

The children were taken by appellee to Dr. Stephen Griggs, a pediatrician. Dr. Griggs testified by deposition that he examined the children. Both Kellie and Lillian were underweight and undersized. They suffered from poor nutrition, poor skin hygiene, and poor dental hygiene. Kellie appeared withdrawn and somewhat fearful of adults. Kellie’s examination showed multiple skin scars located primarily on the legs. Kellie’s left leg had about twelve old circular burn scars and bruises about the knee. Her right leg had about ten old circular, possibly burn scars. She had a recent linear burn on her right leg about two centimeters in length. The circular burns were similar to a burn that could be caused by cigarette burns. Although Dr. Griggs admitted that he could not testify conclusively that the circular scars were cigarette burns, he did testify that in his “best medical opinion” the circular scars were burn scars. The right second toe was badly infected and swollen. Her back was scratched and there was located a large area of petechia or hematoma. Petechia or hematoma was also present on Kellie’s right shoulder and left chest. Dr. Griggs defined petechia as consisting of very small bruises in groups. Pe-techia indicates repeated trauma or blows to the same area of the body. Dr. Griggs also testified that Kellie failed the “Denver Developmental Screening Test.” That test is a standard test designed to test the development of certain motor skills.

Jane Duncan was thirty-three in June of 1976. She has a long history of mental illness. She suffers from a mental condition originally diagnosed as schizophrenic reaction, paranoid type and more recently diagnosed as chronic schizophrenia, undifferentiated type. She has been hospitalized frequently for treatment of the mental condition and for alcoholism. Mrs. Duncan started drinking at age sixteen and drinking has been a problem since age eighteen. In 1973, she said that she had been taking diet pills, amphetamines, “speed,” and smoking “pot” since she was eighteen. Mrs. Duncan stated, however, that she did not smoke “pot” every day. In 1975, Mrs. Duncan was admitted to the Wichita Falls State Hospital. At that time she was suffering from delusions and auditory and visual hallucinations. She heard voices and saw persons that did not exist. She thought her husband had shot Kellie in the foot, and, as proof of that supposed fact, she pointed to a small pimple on the child’s foot, declaring that the pimple was the bullet hole. Mrs. Duncan thought that she had been run over by an automobile, when in truth, she had not. She also thought that someone had kidnapped Kellie and had “shell-shocked” Kellie. Mrs. Duncan was “put on” major tranquilizers which tend to produce an antipsychotic effect. At one time, Davis characterized Mrs. Duncan as an “idiot.” At that time Davis did not think Mrs. Duncan was mentally capable of adequately earing for Lillian.

Later, when Mrs. Duncan lived in Houston, she was placed in a mental hospital for treatment. After appellee took the children in June of 1976, Mrs. Duncan was placed in the Austin State Hospital. Upon admission, Mrs. Duncan complained of visual and auditory hallucinations, that she had been “hearing voices and seeing people.”

Mrs. Duncan was first married at age sixteen. She has been married seven times, three times to one man and twice to Allen Duncan. At time of trial she was still married to Duncan, but she was living with James Davis who had fathered Lillian. Besides Kellie Duncan and Lillian Davis, Mrs. Duncan had a son by a previous husband. The son was adopted by Mrs. Duncan’s sister. Several social workers from Hale County testified by deposition. In February of 1973, Jane Duncan and Allen Duncan lived in Plainview. During that month Mrs. Duncan appeared at the Hale County Welfare Office requesting that the office take custody of Kellie for the reason that she had no one to care for the child and that she was afraid to leave Kellie at the house for fear that Allen Duncan while drunk would harm the child. On that occasion Mrs. Duncan stated that she had left her husband’s house and had no place to go. The welfare officer placed Kellie in a foster home, but a few days later Allen Duncan obtained the child by court order. Later Mrs. Duncan came to the welfare office stating that she had no place to go and nothing to eat. At that time she was referred to the Salvation Army. For about three months Mrs. Duncan would appear in Plainview for a few days and then disappear. On occasion she would take the infant with her and hitchhike to towns around Plainview, only to reappear in Plainview worn out and exhausted. When the infant was in Plainview, the infant would stay with a baby-sitter during the day and with Allen Duncan during the evening.

In the spring of 1973, Mrs. Duncan hitchhiked away from Plainview. Later it was learned that she had been treated in the Alcoholic Ward at the Wichita Falls State Hospital. She returned to Plainview in August, 1973. She then left Plainview with Kellie in the middle of September. The welfare office made unsuccessful efforts to locate her and the child. Mrs. Duncan and Kellie returned to Plainview on October 25, 1973, and remained with Duncan for about two months. Mrs. Duncan and Kellie then disappeared from Plainview on December 20, 1973, and were seen no more in Hale County.

Mrs. Duncan and Kellie next appeared in Wichita Falls where mother and child were living with James Davis. The evidence indicates that Mrs. Duncan first met Davis when they were alcoholic patients in the Wichita Falls State Hospital in the spring of 1973. Lillian Davis was born in Wichita Falls on May 15, 1974.

Davis has suffered from acute alcoholism for many years. Davis drinks in “sprees.” He remains sober for a month or so and then drinks unceasingly for a week or so. At the end of the spree, Davis is usually very ill and often requires hospitalization. Davis was hospitalized for alcoholism in Venta, Oklahoma in 1968; twice in Benton State Hospital in Arkansas in 1969; in the Los Angeles General Hospital in 1971; and in the Norman State Hospital in 1973. Since Kellie Duncan and Lillian Davis have lived with him, Davis has been hospitalized for alcoholism twice in 1974 and once in 1975. After appellee took the children, Davis was hospitalized for alcoholism twice.

In December, 1974, Helen Douglas Hicks, a social worker in Wichita Falls called upon Mrs. Duncan for a “home visit.” Mrs. Hicks testified by deposition that when she came to the door a “nauseous, unpleasant odor” emanated. Filth, debris, trash, and food wastes were scattered about the small house. Lillian lay on a “very dirty couch.” The couch was “stained, filthy, with what appeared to be urine and food and possibly milk.” The child was wrapped in a “real dirty blanket.” The child appeared lethargic to Mrs. Hicks. Kellie was running about the house. Although it was December, Kellie was dressed in a dirty thin dress, with no underclothing, no socks, and no shoes. Kellie’s buttocks were covered with sores. Davis staggered out of the bedroom and appeared to be drunk. He was made “very angry” by Mrs. Hicks’ visit. There were between forty and fifty beer cans scattered about the room.

Valerie Dorothy Wise, a baby-sitter for Lillian in Wichita Falls, testified by deposition. On occasion, when Davis came to pick up Lillian, Davis was drunk. When he would leave with Lillian in his arms Davis would “. . . stagger out and could hardly get down the steps without falling.” Mrs. Wise described Lillian as being underweight and dirty. Lillian appeared to have “. . . maybe milk or something caked in her hair and her clothes and her little feet and arms and hands would be just black . . .’’At times without prior arrangement, Mrs. Wise would have to keep Lillian overnight because Davis would not come for her.

Dr. J. B. Hathorn is a physician specializing in “family practice” in Wichita Falls. Dr. Hathorn, by deposition, testified that he delivered Lillian Davis. During the first several months of her life Lillian had a “very poor weight gain.” Because of Lillian’s failure “to thrive,” Dr. Hathorn caused her to be placed in the hospital. Lillian was malnourished. Lillian did not eat well in the hospital at first because she did not appear “to know how to eat.” Afterward, Lillian gained weight rapidly in the hospital. Dr. Hathorn was of the opinion that Lillian’s failure to thrive was the result of her mother’s failure to feed her adequately.

Dorothy Frances Dummit and her husband, John Dummit, operate the motel in Austin where appellee found the children and Mrs. Duncan. Davis and Mrs. Duncan lived perhaps as long as two months in the motel before they were asked to leave. They were asked to leave the motel, because “. . . Mr. Davis was drinking, and he didn’t have no work, and he couldn’t pay his rent.” The Dummits and Davis also parted company for the reason that Davis “. . . tried to get one of the tenants that lived at the motel at the time to make a bomb to blow up my [Mrs. Dummit’s] car and my home.”

Mrs. Dummit described Kellie as “. . . awful dirty; her hair was awful dirty, and it was matted up.” Kellie came to play with Mrs. Dummit’s nephew. Kellie was so filthy that Mrs. Dummit gave her a bath and shampoo. Kellie had bruises on her legs and back. Mrs. Dummit had “. . . never seen a child bruised like that before.” One day Mrs. Dummit saw Mrs. Duncan carrying Lillian by the child’s throat. “She [Mrs. Duncan] had it around the throat. The arm was under the throat like that.” There was no support for the child’s body. Mrs. Dummit “hollered” at Mrs. Duncan, but Mrs. Duncan “. never answered me in words; she just grunted at me.” Mrs. Dummit testified that Mrs. Duncan “. . . just shook an awful lot at all times, and she was sick in some way.”

A psychologist with the Austin Child Guidance Center, Douglas Faust, testified that Kellie suffers a “developmental lag” in “emotional areas.” Kellie has lacked a “supportive” environment in which to receive intellectual stimulation. Faust testified that Kellie needs emotional support. Faust claimed that a change in Kellie’s environment is necessary. If Kellie is permitted to remain with Davis and Mrs. Duncan, she will fall into a continuously lower pattern of behavior and intellectual abilities.

In August of 1976, Laurence I. Kihnel who is with the child and family consultation team with Mental Health Mental Retardation saw Mrs. Duncan at the motel. Mrs. Duncan was “tremoring” and was in no condition to take care of the children.

Joe Wagner is an investigator for the Welfare Department. Wagner reported that Kellie and Lillian had been left by appellee’s employee with Mrs. Duncan for a home visit on November 24, 1976. When appellee’s employee returned to pick up the children, Mrs. Duncan and the children were gone. Neighbors reported that Davis and Mrs. Duncan had “. . . packed suitcases and appeared to have left town.” Wagner found Davis, Mrs. Duncan and the children at Davis’ place of employment. Mrs. Duncan was shaking badly and appeared “to be out of touch with reality.” Davis was “completely drunk, absolutely drunk.” Davis swayed when he stood and staggered when he walked. He almost touched the floor with his hands when he swayed. At one point he tried to walk through a door, backed up, and said “excuse me” to the door.

Wagner last saw Mrs. Duncan on December 23, 1976, on Highway 183 at North Lamar, hitchhiking. She was shaking badly, much in the same manner as when he had seen her on November 24, 1976.

Appellants called Beckie Baker, the Travis County caseworker on the Davis case. Baker reported that Mrs. Duncan had been attending treatment at Mental Health Mental Retardation Center “fairly regularly,” though on several occasions she had missed her appointments and had forgotten to take her medication. Davis and Mrs. Duncan have cooperated with the welfare office. Mrs. Duncan had participated in “parenting” classes. They have visited the children and have brought small gifts. Baker was of the opinion that after having taken advantage of community services, Davis and Mrs. Duncan have not made any significant change in their ability to take care of the children. Baker testified that when she picked up the children from home visits with Davis and Mrs. Duncan, the children were worried and in “very poor emotional condition.”

Davis described his relationship with Mrs. Duncan as living “as a commonlaw with my wife.” He loves the children. He never punished the children except with a small switch. Mrs. Duncan never punished the children. He explained the bruises on Kellie by the fact that Kellie plays “very roughly.” He denied that he or Mrs. Duncan burned Kellie. Davis testified that he knows that he is an alcoholic. He goes to Alcoholics Anonymous and has now joined a church. He prays regularly. His religion helps him to control his drinking. He is “determined to never drink again.” On cross-examination, Davis admitted that since the children had been taken by appel-lee, he had been hospitalized twice for alcoholism. Davis claimed, by way of excuse, that appellee’s taking the children had caused him to turn once again to drink.

Appellants placed into evidence psychiatric testimony which tended to show that schizophrenia can be controlled by proper medication, that Mrs. Duncan can probably provide care for the children, and that housekeeping habits do not have much effect on emotional behavior of children.

In a non jury case the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Harrell v. Sunylan Co., 128 Tex. 460, 97 S.W.2d 686 (1936); White v. Chamberlain, 525 S.W.2d 273 (Tex.Civ.App.1975, no writ). Likewise, wherein there is conflicting expert testimony, the court in a nonjury case is free to adopt part or all of the expert’s valuation or theory and reject the other expert testimony. Hood v. Texas Indemnity Insurance Co., 146 Tex. 522, 209 S.W.2d 345 (1948).

The children’s health and nourishment were woefully neglected. The court could have concluded that Kellie had been physically abused and mistreated. The court could have concluded that Mrs. Duncan, because she is unable to care for herself, is certainly in no position to take care of the children. As a result, during the days and weeks that Davis is incapacitated by drink, the children, age four and two, must fend for themselves. The district court was in a position to measure the future conduct of Mrs. Duncan and Davis by their recent past conduct as it might be related to the same or similar situation. De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359 (1960), D_ F_ v. State, 525 S.W.2d 933 (Tex.Civ.App.1975, no writ). The district court was not required to believe that there has been a lasting change in Davis’ attitude and behavior toward alcohol since appellee took the children. The fact that Davis has been twice hospitalized for alcoholism since that time argues against Davis’ professed turnabout in behavior. Neither was the court required to believe that Mrs. Duncan had undergone a change that would empower her to control her mental illness by medication to the extent necessary to care for the children. Appellants’ own witness, Baker, testified that Davis and Mrs. Duncan, after having availed themselves of all “community services,” had not made any significant change in their ability to take care of the children.

The judgment is supported by the evidence and, further, is not contrary to the great weight and preponderance of the evidence. Accordingly, appellants’ sixty-six points of error are overruled.

The judgment is affirmed.

Affirmed.


author: ROBERTSON, Justice.

text:
    TEXAS INTERNATIONAL MORTGAGE COMPANY and Frank J. Fuell, Appellants, v. M. P. CRUM COMPANY, Appellee.
    No. 19490.
    Court of Civil Appeals of Texas, Dallas.
    March 15, 1978.
    Rehearing Denied April 11, 1978.

      Jess Rickman, Terrell, Edward J. Kolb, Dallas, for appellants.
    Robert A. Wooldridge, Worsham, For-sythe & Sampels, Dallas, for appellee.
   ROBERTSON, Justice.

Texas International Mortgage Company and Frank J. Fuell sued the M. P. Crum Company, claiming that certain sums paid to the Crum Company in connection with repayment of a loan constituted usurious interest. Both parties moved for summary judgment, and the trial court granted summary judgment against the borrowers’ claim. They now appeal from that judgment and the overruling motion.” Although they ask us to reverse and render, we affirm.

The primary issue on this appeal is whether a lender may, as a condition of making a loan, require the borrower to deposit a portion of the loan proceeds in an interest-bearing account with a third party in order to secure the repayment of the obligation. In this case, the face amount of the loan was $500,000, and the obligation was partially secured by a certificate of deposit purchased from a bank with $100,-000 of the loan proceeds. The certificate provided for interest, which accrued to the borrowers. According to the borrowers’ argument, they only had the use of $400,000 instead of the agreed $500,000 sum and therefore, the lender’s collection of interest on the $500,000 obligation rendered the transaction usurious. We disagree. This case is not one in which the lender required the borrower to keep part of the loan proceeds on deposit with the lender, thus permitting the lender to use it in making loans to others. Here the only benefit to the lender from the $100,000 deposit was as security for the loan, so far as the present record shows. There is neither pleading nor proof that the lender in this case obtained an indirect benefit from the deposit, so that the arrangement was, in fact, a subterfuge to conceal usury. Although it is true that the borrowers were not free to use the $100,000 as they pleased, the funds were nevertheless employed to their benefit. They received interest payments under the certificate of deposit, and the usage restrictions were merely a consequence of their agreement with the lender to use the $100,-000 funds as partial security for the $500,-000 obligation. Since the borrowers thus received the benefit of the entire $500,000 loan, interest was properly charged on the full amount of the obligation.

The borrowers do not contend that the loan was usurious if $500,000 is considered the principal amount. Consequently, the trial court properly overruled their motion for summary judgment and granted the lender’s motion.

Affirmed.


author: COLEMAN, Chief Justice.

text:
    Ex parte Suzanne Weldon DIRR, Relator.
    No. 17128.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 16, 1978.

      Nell H. Holloway, Houston, for appellant.
    George A. Rustay, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an original proceeding for Writ of Habeas Corpus. Relator seeks release from confinement suffered as a result of a judgment entered finding her in contempt of court for the failure to grant child visitation rights and “because of her continued litigation and her intentionally interfering and harassing Relator in such child visitation.”

The affidavit on which the contempt hearing was held charged Relator with contempt and was based on an order entered by the court of domestic relations modifying and making more certain the rights of visitation previously established by a judgment entered in a divorce action. Neither the divorce judgment nor the modifying order enjoined Relator from harassing her former husband, Eugene Oliver Dirr, Jr., or from interfering with his visitation rights by continued litigation. There is neither pleading nor proof that the court had entered an order directing Mrs. Dirr not to file further legal proceedings affecting the visitation rights granted to Mr. Dirr.

A court has no general power to enforce its decrees by contempt proceedings. Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523 (1961); Ex parte Prickett, 159 Tex. 302, 320 S.W.2d 1 (1958).

The court may enforce by contempt proceedings an order or command embodied in a decree where the details of compliance are set forth in clear, specific and unambiguous terms. Ex parte Slavin, 412 S.W.2d 43 (Tex.1967).

The trial court exceeded its jurisdiction in ordering Relator punished for interfering with her husband’s visitation rights by resort to the courts even though he considered that her conduct amounted to harassment.

The court found the Relator guilty of two acts of contempt and assessed a single punishment for both acts. Since the court lacked authority to punish Relator for one of the alleged acts of contempt, the entire judgment is tainted and void. Ex parte Turner, 478 S.W.2d 256 (Tex.Civ.App.—Houston [1st Dist.] 1972).

The Relator is discharged from custody.


author: PEDEN, Justice.

text:
    James E. STEPHENSON et ux., Appellants, v. Ben Lynn VINEYARD, Jr., Independent Executor et al., Appellees.
    No. 17066.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 16, 1978.
    Rehearing Denied April 13, 1978.
    Kilgarlin, Dixon & Hancock, W. W. Kil-garlin, Houston, for appellants.
    Wadler, Webb & Lipscombe, Larry E. Wadler, Wharton, Dohoney, Collier, Cartwright & Wandel, N. Wyatt Collier, Byrnes, Myers, Adair, Campbell & Sinex, Rollin L. Fischer, Houston, for appellees.
   PEDEN, Justice.

Plaintiffs, James E. and Aprile Dianne Stephenson, appeal from a declaratory judgment holding that they have no mineral interests in two tracts of land that had been conveyed to them by Mae V. Neal. The Stephensons granted an oil and gas lease to Caddo Oil Co. on the property and then conveyed it to M. Shirley Cardwell, trustee, who deeded it to twenty-four persons, each of whom intervened. The trial court held that half of the minerals reverted to the estate of Mae V. Neal under provisions in her conveyances and that the royalty interest reserved by the Stephen-sons in their deed to Shirley Cardwell had terminated. Appellants argue that Mae V. Neal’s reversionary interest had not commenced, since a well capable of producing in paying quantities had been discovered before the reverter was to vest and that since there was production from another tract in the pooled unit within two years of their conveyance to Shirley Cardwell, they were entitled to the royalty they had reserved. We affirm.

This case was submitted to the trial judge on an agreed statement of facts. Mae Y. Neal conveyed a total of 194.081 acres of land to Mr. and Mrs. Stephenson by deeds dated June 28, 1972 (174.54 acres) and July 1,1972 (20.38 acres). The Stephensons executed an oil and gas lease to Caddo Oil Company on July 22, 1972, that was later ratified by Mr. Vineyard under his power of attorney from Mae V. Neal. The Stephen-sons conveyed the property to Shirley Card-well, trustee, on August 10, 1973. On the same day Cardwell deeded the property to Yiu Luen Lau in trust for the intervenors.

On June 3, 1974, a pooled unit called McFarland #1 was formed by Caddo Oil. This unit included 99.145 acres of the Stephenson tract, but the well was drilled on adjoining property. It was potentialed on April 22, 1974 for an open flow of 1,533,000 cubic feet of gas per day, but none of the gas was sold until July of 1975. The parties stipulated that a well was drilled on the James Stephenson 194.081 acre tract but was plugged and abandoned as a dry hole on August 28, 1973. No operations for drilling a well on that tract have been commenced since, and no producing well has ever been physically located on the 194.081 acre tract. Delay rental payments were made by Caddo to James Stephenson in 1973 and on July 16,1974 and to Ben Vineyard, executor of the estate of Mae V. Neal, on the latter date. No shut-in payments have been made.

The Stephensons sued Mr. Vineyard as independent executor of the estate and Mae V. Neal and Caddo Oil Company for a determination of the parties’ rights under the conveyances. Shirley Cardwell and the other twenty-four intervenors sought a declaration of the reversionary provision in their deed from the Stephensons.

Since the parties submitted an agreed statement of facts, the only questions to be resolved by the trial court were a construction of the deed provisions to determine the parties’ respective mineral interests.

Appellants’ first point is that the court erred in refusing to enter conclusions of law properly requested under Rules 296 and 297, Texas Rules of Civil Procedure. We overrule this point. The stipulated facts present no intricate or complex law questions, and the trial court’s legal conclusions can be ascertained by reading the judgment. A judge is not required to set out every minute detail of his reason for having reached the legal conclusions expressed. Ligon v. E. F. Hutton & Co., 428 S.W.2d 434, 441 (Tex.Civ.App.1968, writ ref. n. r. e.). The record does not show that the court’s failure to file conclusions of law has resulted in any injury to the appellants.

Appellants’ second point asserts error in the trial court’s holding that half of the mineral rights revert to the estate of Mae V. Neal under this reservation in her June 28, 1972 deed to the Stephensons:

“PROVIDED, HOWEVER, that I, MAE V. NEAL, hereby reserve onto myself, my heirs and assigns, one-half (½) of the oil, gas and other minerals on, in, and under the above described property from and after two (2) years from date hereof, or from and after the cessation of production of any minerals which are being produced from the above described property at the end of said 2-year period (whichever is later in point of time), which reservation shall entitle me and my heirs and assigns to full ownership of said one-half (½) of said minerals of said two tracts after above described period of time, including the executory rights thereof, the bonuses and delay rentals received from Leases of such one-half (½) of the minerals of the above described property and the royalties received from production of one-half (½) of the minerals therefrom; provided that such one-half (½) of the minerals of said above described property shall not pass unto me and my heirs and assigns until production ceases from any and all wells, mines and other mineral producing units located on said above described property which are in production at the end of said 2-year period.”

Appellants argue that the test on April 22, 1974, showed the production potential of the McFarland well and that this along with efforts of Caddo to secure transportation and marketing of the gas satisfied the production requirement in the provision above. Appellants rely on Bain v. Strance, 256 S.W.2d 208 (Tex.Civ.App.1953, writ ref. n. r. e.). We note, however, that the Texas Supreme Court has expressly refused to follow the statement in Bain that discovery is the equivalent of production. Sellers v. Breidenbach, 300 S.W.2d 178 (Tex.Civ.App.1957, writ ref.); Holchak v. Clark, 284 S.W.2d 399 (Tex.Civ.App.1955), writ ref.). See also Amoco Production Co. v. Braslau, 561 S.W.2d 805 (1978).

“The parties could have placed in their royalty deed a shut-in gas well provision, if they had desired to do so, but we find so such provision in this deed. They could have provided that the royalty deed would be continued in effect if a well capable of producing was completed on the premises, if they had so desired, but they did not do so.” Sellers v. Breidenbach, supra.

In both the Sellers and Holchak cases, the royalty deeds provided that if there was no “paying production” on the land conveyed before a stipulated date, the grant should be void and the interest should revert to the grantors; in our case the provision in question referred to “production”, and did not specify “paying production.” We consider the Supreme Court’s refusal to follow the Bain case controlling, nonetheless, because in Sellers, Holchak, and in our case, there was discovery but not production.

Appellants’ third point attacks the finality of the judgment, pointing out that it determines the rights of the parties under the Neal deed dated June 28, 1972 covering 174.54 acres but does not specifically dispose of the parallel issue pertaining to the July 1, 1972 transfer of 20.38 acres. We note, however, that the reversionary interest provisions are identical in the two deeds and that no event occurred between June 28, 1974 and July 1, 1974 that could result in a different holding as to the July 1, 1972 deed. “A judgment which grants part of the relief but omits reference to other relief put in issue by the pleadings will ordinarily be construed to settle all issues by implication.” Vance v. Wilson, 382 S.W.2d 107, 108 (Tex.1964); 4 McDonald, Texas Civil Practice 78, § 17.10.4. We hold that the trial court, by implication, determined the rights of the parties under both of the conveyances from Neal to the Stephensons.

We consider points of error four and five together. In them the appellants contend that the trial court erred in entering judgment that there was no production from the property in question within two years from August 10, 1973, and that the three-fourths royalty interest reserved by the appellants in their deed of that date to Shirley Cardwell, trustee, vested in the in-tervenors on August 10, 1975. The royalty reservation in the appellants’ August 10, 1973 conveyance to Shirley Cardwell stated:

“save and except, that grantors reserve unto themselves, their heirs and assigns, an undivided three-fourths (¾) royalty of all the oil, gas, or other minerals in, on or under, or that may be produced from the above-described property for a period of two (2) years from the date hereof, and so long thereafter as oil, gas, or other minerals are produced from said property. At the end of said two (2) year period from the date hereof if oil, gas, or other minerals are not being produced from said property, then the title to said three-fourths (¾) royalty shall pass to and vest in the grantee herein, her successors and assigns; if however, at the end of said two (2) year period, oil, gas, or other minerals are being produced from said premises, then, if and when oil, gas, or other minerals cease to be produced from said land after the expiration of said two (2) year period from the date hereof title to said three-fourths (¾) royalty shall pass to and vest in the grantee, her successors and assigns.”

This clause in the deed is immediately followed by:

“This conveyance is subject to the following:
(1) Oil, gas, and mineral lease dated July 26, 1972, from JAMES STEPHENSON and wife, APRILE DIANNE STEPHENSON, to CADDO OIL COMPANY, recorded in Volume 572, Page 499, of the Deed Records of Fort Bend County, Texas.”

The lease authorized Caddo Oil Company to pool or unitize the land in question with any other land covered by the lease and stated that any “operations conducted on any part of such unitized land shall be considered for all purposes except the payment of royalty, operations conducted upon said land under this lease.” The issue under appellants’ points four and five is whether production from a well on an adjoining tract that is part of a unit set by the lessee must be considered production from the described property when the conveyance provided that it was subject to a lease and the lease contained the provisions just recited. We hold that it does not.

“The term ‘subject to’, as used in the mineral deed has a well recognized meaning. The words ‘subject to’, used in their ordinary sense, mean ‘subordinate to’, ‘subservient to’ or ‘limited by’. There is nothing in the use of the words ‘subject to’, in their ordinary use, which would even hint at the creation of affirmative rights.” (citations omitted)
‘Subject to’, as used in conveyances, is a term of qualification and not of contract.”

Kokernot v. Caldwell, 231 S.W.2d 528, 531 (Tex.Civ.App.1950, writ. ref.).

We do not agree with the appellants’ position that by accepting the deed or benefits under it Cardwell and her assigns ratified the oil and gas lease previously executed by the Stephensons and recited in the deed. In Loeffler v. King, 236 S.W.2d 772 (Tex.1951), a “subject to” clause ratified or gave new life to a prior lease that may have terminated, but we have no such facts in our case.

We cannot say that by adding the “subject to” clause that Stephensons enlarged their clearly-stated mineral interest to include production of oil or gas from an adjacent tract pooled pursuant to the lease.

Affirmed.


author: DODSON, Justice.

text:
    LAKE MEREDITH DEVELOPMENT COMPANY, Appellant, v. CITY OF FRITCH, Appellee.
    No. 8868.
    Court of Civil Appeals of Texas, Amarillo.
    March 20, 1978.

      Miller, Miller & Russell, Oth Miller, Amarillo, for appellant.
    Gassaway, Gurley & Sheets, Jody G. Sheets, Borger, for appellee.
   DODSON, Justice.

This is an action in trespass to remove pipelines from real property. Lake Meredith Development Company, a corporation, the appellant-plaintiff, brought suit against the City of Fritch, appellee-defendant, seeking to remove two pipelines from property owned by the development corporation or alternatively for damages. The City answered by general denial, affirmative defenses and asserted counterclaims for easement by estoppel and by implication. The nonjury trial resulted in a take-nothing judgment against the development corporation and decreed an easement across the property with rights of ingress and egress in favor of the City. The development corporation appeals this judgment. We affirm.

The development corporation is the owner of a 59.132 acre tract of land in Hutchinson County, Texas, which adjoins the City of Fritch. At the request and expense of prior owners of the property, the City installed two underground pipelines, one for water and the other for sewage, which traversed the 59.132 acre tract. These pipelines provide utility services to Harbor Bay Unit I, an addition to the City of Fritch, and other properties. When the pipelines were installed by the City, Harbor Bay Unit I and the 59.132 acre tract were under common ownership. No written conveyance of the purported water and sewer easement in question was ever filed or recorded in the deed records of Hutchinson County, Texas.

The City claims it obtained an easement by estoppel and by implication across the 59.132 acre tract from prior owners of the property. The development corporation says it is an innocent purchaser of the property for value without actual or constructive notice of the proposed pipeline easement.

The parties agree that as a general rule one who attempts to show an easement by estoppel must show that (1) a representation was communicated to the promisee; (2) the communication was believed; and (3) there has been reliance upon such communication. Dyre v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962) and Doss v. Blackstock, 466 S.W.2d 59 (Tex.Civ.App.—Austin 1971, writ ref’d n. r. e.). Also, the development corporation agrees and concedes that elements one and two are supported by the evidence in this case. However, the corporation contends that the third element was not established. The corporation says “the evidence does not show that [the City] has expended any money in reliance on the communication” because the prior owners paid for the installation of the pipeline.

In essence, the development corporation claims that reliance by the City can be shown only by “an expenditure of some sort.” In support of this contention, they rely on Exxon Corporation v. Schutzmaier, 537 S.W.2d 282, 285-86 (Tex.Civ.App.—Beaumont 1976, no writ). However, we do not read Exxon to require this narrow construction. There the court noted that the Supreme Court stated in Dyre that “[t]he exact nature and extent of the doctrine of estoppel in pais have not been clearly defined” and that “[i]n certain situations, it has thus been suggested that the cases should more properly be based upon a construction of the surrounding circumstances.”

The Exxon court further said:

The courts of this State have said that “ ‘the owner of land may create an easement by parol agreement or representation which has been so acted on by others to create an estoppel in pais’.” 4 F. Lange, Texas Practice 148, 149, § 377 (1961); Harris v. Rate, 375 S.W.2d 919, 922 (Tex.Civ.App.—Waco 1964, no writ); Jackson v. Back, 378 S.W.2d 723, 726 (Tex.Civ.App.—Amarillo 1964, no writ). The reliance and resulting possible detriment to the plaintiffs if the easement is revoked is well established (Emphasis added)

The additional factor of detriment or possible detriment was present. Thus, the decision was not grounded totally on an expenditure of some funds on the servient estate or property of the promisee. We conclude that reliance includes detriment which may be determined from the surrounding circumstances, such as the effect on the user if the easement is revoked or removed.

The undisputed evidence shows that Mr. Tommy Martin and others owned the 59.132 acre tract of land and other property referred to as Harbor Bay Unit I. Mr. Martin approached the City of Fritch concerning the development of these properties. The City hired a consulting firm to work with the City and Mr. Martin.

The consulting engineer testified that the City of Fritch employed him to prepare plans and specifications for water and sewer services to the Harbor Bay area, to make recommendations on line locations, to assist in obtaining bids for construction of these lines and to supervise their installation. He met several times with Mr. Martin and the city council to assist them in the matter. Mr. Martin provided an “Overall plat of Harbor Bay.” Mr. Martin and the City agreed to the engineer’s recommendations on the location of the water and sewer lines over the 59.132 acre tract to be used to serve the area. The engineer staked the locations of the lines. Mr. Martin had “his own surveyor mark the easement across the property.” On July 7,1965, the City opened and accepted a bid for the water and sewer installation in the amount of $79,000.

The engineer described the sewer line as a 10 inch vitrified clay line and the waterline as a 10 inch asbestos cement line. The sewer line is a gravity line and varies in the underground depth from four and a half to nine feet. The waterline is generally about 30 inches underground. He further testified that the water and sewer lines were completed and turned over to the City in September or October 1965, that there has been no alteration in the lines and no cessation of service with the lines since installation. He also testified that it would be very costly to move the waterline and extremely costly to remove the sewer line because a lift station would be required to replace the gravity flow line.

The uncontroverted testimony of the Fritch city manager was that these water and sewer lines serve Harbor Bay Unit I, which is inside the City, Maverick Village, which is not in the City, and Double Diamond Estates, which is served with water only and lies outside the City. However, he further said that the City of Fritch has no other feasible manner for providing water and sewer services to Harbor Bay Unit I other than through these lines across the 59.132 acre tract.

All of the evidence set forth above is uncontroverted in the record. We determine that the acts, conduct and representations of the prior owners created an easement which has been so acted on by the City of Fritch and its residents as to establish an estoppel in pais. The uncontrovert-ed evidence shows the reliance and resulting possible detriment to the City of Fritch and its residents if the easement is revoked or removed.

We also conclude that the City of Fritch is not precluded from obtaining the easement by estoppel [in pais] across the 59.132 acre tract by the undisputed fact that the prior owner of the property paid $79,000 to the City on the installation of the water and sewer lines. The development corporation does not direct us to any other evidence or absence of any evidence to support its legal and factual insufficiency points on this issue. However, our review and evaluation of all the evidence in the record reveals ample evidence to support the questioned finding and conclusion of easement in pais.

The trial court held on both undisputed and in part conflicting evidence that the development corporation was not an innocent purchaser of the 59.132 acre tract for value without actual notice of the pipeline easement. The development corporation attacks these findings and conclusions by legal and factual sufficiency points.

In Fender v. Schaded, 420 S.W.2d 468, 473 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.) the court said:

The law imputes to a purchaser such knowledge as he would have acquired by the exercise of ordinary diligence. * * The Grantee is bound where a reasonably careful inspection of the premises would disclose the existence of the easement, or where the Grantee has knowledge of the facts sufficient to put a prudent buyer on inquiry. It is not necessary that the easement be in constant and uninterrupted use. * * *

The undisputed testimony of Clarence Spangler, vice-president of Lake Meredith Development Company, one of the principals in negotiating the purchase of the property, was as follows:

Q. Are you aware that the City of Fritch has two lines, a sewer and waterline, buried under that property that traverses the property?
A. Yes, sir.
Q. When did you first learn about that?
A. I did not know of those water and sewer lines until the surveyor who was preparing the perimeter for the closing of this purchase brought it to our attention, which was sometime in August of ’72.
Q. August, ’72?
A. Yeah.
Q. Was that before or after you had signed the sales contract?
A. It was after we had signed the sales contract.
Q. And before the deed had been signed?
A. Yes, sir.
Q. Do you know approximately what date the survey was completed that revealed that there was—
A. August 10, 1972.
Q. The deed, I believe, is dated August 19?
A. Yes, sir. It’s dated the 16th of August.
Q. After learning about the easement, did you have an occasion to contact a representative from the City of Fritch?
A. No, sir, we did not at that time.

He also said that the development corporation and its predecessor companies have been involved in the land development business since 1963.

The consulting engineer for the City of Fritch testified that the two pipelines and a twenty foot easement were shown on the official water and sewer maps of the City of Fritch, that he prepared the maps for the City showing these matters in the fall of 1965 after the installation was completed. The Fritch city manager testified the official water and sewer maps of the City were kept in the city offices in Fritch and that such were available for inspection by the public.

On July 19, 1972, Roland Simpson and others who then owned the 59.132 acre tract entered into a contract of sale of the property to Lake Meredith Development Company. On August 16,1972, Roland Simpson and others conveyed the property by Warranty Deed to Lake Meredith Development Company. The contract of sale by Simpson and others with Lake Meredith Development Company provided for an owner’s title policy with no exception other than, in part, “visible or apparent easements not of record.” The Warranty Deed from Simpson and others conveying the property to Lake Meredith Development Company was subject to, in part, “any visible or apparent easements (other than advertising sign easements) not of record over and across said land.”

The development corporation says that the pipelines were not visible and apparent. Again, Mr. Spangler testified that he looked at the property before the purchase, that he did not “see any evidence whatever that there would be water and sewer lines traversing the property,” that there was “grass and vegetation” on the property and that the grass was probably six inches to two feet tall.

Both the City’s consulting engineer and city manager testified that the sewer pipeline had three manholes above the ground. The city manager said the ground was depressed along the pipelines and that this condition was visible and could even be seen from the road adjacent to the property.

The development corporation had and assumed the burden of proving it was an innocent purchaser for value without actual notice of the easement. The trial court specifically found against the corporation on this claim including its contention of no actual notice of the easement prior to purchasing the property.

Our review and evaluation of the evidence reveals that we must conclude the corporation failed to establish, as a matter of law, that it was an innocent purchaser of the 59.132 acre tract for value without actual notice of the easement. We have considered all the evidence in the record, both favorable and unfavorable to this issue. When the evidence is so considered, we must conclude the trial court’s failure to find that the corporation was an innocent purchaser of the property for value without notice of the easement is not so against the great weight and preponderance of the evidence as to be manifestly wrong. In fact, there is ample evidence of probative force in this case to support the trial court’s findings and conclusions on this issue.

In support of its position on no actual notice, the development corporation relies on Shaver v. National Title & Abstract Co., 361 S.W.2d 867 (Tex.1962). We do not consider Shaver controlling in the case before us because the facts there are quite dissimilar from the facts here. In Shaver there were no surface indications that the pipeline was buried in the soil. However, here we have the additional facts of actual knowledge by the corporation of the presence of the pipeline on the property before purchase, three visible manholes above the surface of the soil, and the visible settling of the soil on the easement to a level below the surface of the remainder of the tract.

In summary, we conclude that Lake Meredith Development Company’s points of error one through eight are overruled. Our ruling on these points disposes of this appeal; therefore, we do not reach the remaining points. Accordingly, the judgment of the trial court is affirmed.

      . Mr. Tommy Martin and others conveyed these properties to Great Plains Development Corporation before the pipeline project was completed. An unchallenged finding of fact by the trial court established Mr. Martin as president of Great Plains Development Corporation.


text:
    Dock L. CURB et al., Appellants, v. Carl F. BENSON et al., Appellees.
    No. 12693.
    Court of Civil Appeals of Texas, Austin.
    March 22, 1978.
    Rehearing Denied April 26, 1978.
    Lee Curtis, Curtis & Wade, Belton, for appellants.
    Frank Roberts, Rick Morris, Piperi, Roberts & Morris, Killeen, for appellees.
   SHANNON, Justice.

This appeal involves the construction of a restrictive covenant requiring, among other things, that “. . . all residences shall be built in place.” The covenant appears in the 1968 dedication of a subdivision known as Lakeview Terrace, located in Bell County-

Appellants, Dock L. Curb and wife, Ruby Mae, and Cecil A. Massie and wife, Nina, own property in Lakeview Terrace, as do appellees, Carl F. Benson and wife, Faith. In the autumn of 1976, appellees Benson entered into a contract with appellee Jack Morris for the purchase of a “prefabricated” or “specially-built” house. By the terms of the contract, Morris agreed to move the house, in two sections, onto appel-lees’ lot in the subdivision. After Morris had completed the job, appellants sued the Bensons in the district court of Bell County seeking an injunction ordering appellees Benson to remove the house. After trial, the court entered a take-nothing judgment. In support of the judgment the district court concluded that the Benson house “. . . was built in place on said lot,” and, as a result, was not in violation of the restrictive covenant.

Appellants claim that there was no evidence to support the district court’s finding that the Benson house was “built in place.” Accordingly, appellants urge, the court erred in concluding that the Benson house was not in violation of the restrictive covenant.

As in other written instruments, the end sought in the construction of restrictive covenants is the ascertainment of the intent of the parties as revealed by the language used in the covenant. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.1928). Words and phrases used in a restrictive covenant will be accorded their ordinary and commonly accepted meaning. Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014 (1925). The rule that restrictive covenants are strictly construed, favoring the grantee and against the grantor and resolving all doubts in favor of the free and unfettered use of the premises, is applicable only when the intent of the parties is not ascertainable from the terms of the covenant. Atkins v. Fine, 508 S.W.2d 131 (Tex.Civ.App.1974, no writ). This Court, then, must examine the words, “built in place,” in their ordinary and popular sense as of 1968, together with what those words necessarily imply. Green Avenue Apartments v. Chambers, 239 S.W.2d 675 (Tex.Civ.App.1951, no writ).

The parties disagreed on a description of the Benson house. Morris rejected the term, “prefabricated” house, and. instead, he preferred the term, “specially-built” house. Morris described the building of his houses as beginning on an “assembly line” located at McGregor, Texas, and finally “winding up” on the purchaser’s lot wherever its location. In that manner, the Benson house was constructed in McGregor, and moved in two sections to the lot in the subdivision. The foundation was of the typical pier and beam type. Two parallel ends of the foundation were left open so that the trucks carrying the two sections of the house could maneuver over the foundation. Once the two sections were laid on the foundation, the sections then were “tied” together and the seam was covered with roofing and paneling. The plumbing and electric lines, previously installed in the sections of the house, were connected to outside lines after the sections of the house were tied together on the lot.

A house “built in place” is one constructed piece by piece on a permanent site. The evidence supports that view. The testimony was that in 1968 a house “built in place” was one built piece by piece on its permanent location. Certain parts of a house such as cabinets, windows, and doors, were, and are presently, prefabricated and brought to the construction site. Nevertheless, when “building in place” the major and the most important parts of the construction, such as the foundation, and most of the framing and roofing, are constructed on the job site. As a matter of law, moving two completed sections of a house to a previously completed foundation, securing the sections to a foundation, tieing the seams, and connecting the utility lines was not in 1968 housing “built in place.”

In their prayer for relief in the district court, appellants prayed that appellee Morris be enjoined “. . . from encouraging the violation of said restrictive covenants by owners of lots in said subdivision . .” Appellants’ brief has no point of error complaining of the failure of the district court to enjoin Morris. Nevertheless, in the body of the brief there is argument that the court erred by failing to so enjoin Morris. The argument is without merit since there was no evidence that Morris was selling his prefabricated houses to other lot owners in the subdivision.

The judgment is reversed, and the cause is remanded to the district court with instructions that the district court enter an order requiring the removal of the Benson house from Lakeview Terrace.


author: EVANS, Justice.

text:
    TEXAS MEDICAL CENTER, INC., et al., Appellants, v. Clarence R. BOEHME et al., Appellees.
    No. 17083.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 23, 1978.
    Tekell, Book & Matthews, Kenneth L. Tekell, Bean & Manning, Frank Bean, Houston, for appellants.
    Talbert, Giessel & Stone, Alice Giessel, Houston, for appellees.
   EVANS, Justice.

This is a wrongful death action brought by Clarence R. Boehme against Texas Medical Center, Dover Elevator Company, Hunter-Hayes Eelvator Company and Montgomery Elevator Company. Mr. Boehme seeks actual and punitive damages for the death of his wife who was killed in an elevator accident at the Texas Medical Center.

All defendants filed general denials and Montgomery Elevator Company also filed a motion for summary judgment alleging that the plaintiff’s claim was barred by the ten year statute of limitations. Article 5536a, Tex.Rev.Civ.Stat.Ann. After the filing of Montgomery’s motion for summary judgment, which was directed solely at the plaintiff’s claim, Dover Elevator Company and Hunter-Hayes Elevator Company filed cross-actions against Montgomery and Texas Medical Center for indemnity and contribution, and Texas Medical Center filed similar cross-actions against Dover, Hunter-Hayes and Montgomery. It is to be noted that Montgomery did not thereafter amend its motion for summary judgment to include the cross-claims asserted against it by the other defendants.

The trial court granted Montgomery’s motion for summary judgment, ordering that the plaintiff and a11 other defendants take nothing against Montgomery and severing from the main suit all claims asserted against Montgomery. The plaintiff and the defendants, Texas Medical Center, Dover Elevator Company and Hunter-Hayes Elevator Company, then joined in a motion to set aside the summary judgment, attaching to their motion an affidavit of one of Dover’s employees which set forth facts in avoidance of the ten year statute of limitations. After hearing this motion, the trial court entered two orders, one granting the plaintiff’s motion to set aside the summary judgment and the other denying the defendants’ motion. The defendants, Texas Medical Center, Dover and Hunter-Hayes, have brought this appeal from the trial court’s summary judgment that they take nothing by their cross-actions against Montgomery.

The trial court’s order granting Montgomery’s motion for summary judgment effectively severed from the main case all claims asserted against Montgomery, including the cross-claims asserted by Texas Medical Center, Dover and Hunter-Hayes. Had the trial court not thereafter set aside its summary judgment that the plaintiff take nothing against Montgomery, its summary judgment would have been final and appealable. However, since the trial court made no further order of severance when it ordered the plaintiff’s claim reinstated against Montgomery, its summary judgment cannot be considered as having disposed of all issues between all parties to the severed action.

“A judgment is appealable only when it disposes of all parties or disposes of some independent severed severable interest, issue or right.” Maxfield v. Dunagan, 254 S.W.2d 150 (Tex.Civ.App.—Dallas 1952, no writ).

In the absence of an order of severance, a party against whom an interlocutory summary judgment has been rendered will have a right of appeal only upon entry of a final judgment disposing of the whole case. Pan American Petroleum Corp. v. Texas Pacific Coal and Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959).

When no disposition is made of the plaintiff’s cause of action, a judgment disposing of a defendant’s cross-action is interlocutory and not final. Cawley v. Security State Bank and Trust Co., 122 S.W.2d 1089 (Tex.Civ.App.—Beaumont 1938, no writ); Chambers v. Jones, 101 S.W.2d 836 (Tex.Civ.App.—El Paso 1937, no writ). Since the summary judgment in the case at bar is not a final judgment as to all parties and issues in the severed action, this court is without jurisdiction to consider the appeal.

The appeal is dismissed for want of jurisdiction.


author: McDONALD, Chief Justice.

text:
    George W. WARNER et al., Appellants, v. The CITY OF SAN ANTONIO, Appellee.
    No. 5828.
    Court of Civil Appeals of Texas, Waco.
    March 23, 1978.

      Jose F. Olivares, San Antonio, for appellants.
    James M. Parker, City Atty., Jackson C. Hubbard, Asst. City Atty., Phillip Hardber-ger and Josephine M. Hall, Hardberger, Branton & Herrera, Inc., San Antonio, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Warner, et al., landowners whose property was subject matter of a condemnation suit, from order of dismissal of such suit.

Attorneys who in fact represented the Urban Renewal Agency of the City of San Antonio, purporting to act for the City of San Antonio filed condemnation proceedings in the name of the City of San Antonio to condemn certain property in the City of San Antonio belonging to George W. Warner, Jose F. Olivares and wife. After award by the Commissioners and appeal to County Court at Law Number 6, and while such case was pending in the trial court it was discovered by the City that the proceeding was erroneously instituted by the Urban Renewal Agency, a separate entity, in the name of the City of San Antonio instead of in the name of the Urban Renewal Agency.

The City intervened in the cause for the sole purpose of moving for dismissal of the proceeding; and filed motion to dismiss such cause.

Appellants landowners opposed such motion for dismissal unless the trial court award them allowance under Article 3265, Section 6 VATS.

The trial court granted the City’s motion and dismissed the cause without granting appellants any award under Article 3265, Section 6 VATS.

Appellants landowners appeal on one point: “The Court erred in dismissing the illegal condemnation proceedings without awarding allowances to the landowners under the provisions of Article 3265-6 VATS”.

It is without dispute in this record that attorneys who represent the Urban Renewal Agency of the City of San Antonio erroneously filed condemnation proceedings in the name of the City of San Antonio; that the City learned of this, intervened in the case for the sole purpose of moving for dismissal of the proceeding; filed motion to dismiss the proceeding; and the trial court dismissed the proceeding without making any allowance for appellants under Article 3265-6 VATS.

Article 3265-6 VATS provides: “Where a plaintiff after appeal from an award, or after said proceeding becomes a case for trial in court, desires to dismiss, abandon the proceedings, or refuse the jury verdict returned by the jury or court prior to entry of judgment, said plaintiff shall by motion be heard thereon, and the court hearing same may as part of the terms of granting such motion, make an allowance to the landowner for reimbursement of his reasonable attorneys’ and appraisers’ fees * * and * * necessary expenses incurred * *; provided, however, plaintiff shall not be liable for any such fees or expenses in any case which may be dismissed upon its motion where such case is subsequently refiled, and where the court is advised by plaintiff in connection with such motion that it intends to refile such case * * *

The record here reflects that the Urban Renewal Agency advised the court of its intention to refile and that such has in fact been done, and such refiled case is now pending.

Any damages appellants have or may suffer through the admittedly erroneous actions of the Urban Renewal Agency may be recovered in the refiled case currently pending in the trial court. Alexander v. City of San Antonio, Tex.S.Ct., 468 S.W.2d 797.

The record further reflects appellants have filed a separate suit for their damages against the Urban Renewal Agency in Federal Court.

Appellants herein appear to have been badly treated, but under the record they have not shown abuse of discretion by the trial court, or entitlement to allowance under Article 3265-6 against the City of San Antonio.

The trial court took the only action which it could legally take when it was made aware that the City of San Antonio was not in fact the plaintiff. Wilbarger County v. Hall, Com.App., 55 S.W.2d 797.

Appellants’ point is overruled.

AFFIRMED.


author: McKAY, Justice.

text:
    Wayne TEAGUE, Appellant, v. B. J. STEPHENS, Appellee.
    No. 1109.
    Court of Civil Appeals of Texas, Tyler.
    March 23, 1978.
    Roger D. Sanders, Jarvis, Grisham, Sanders & Emerson, Sherman, for appellant.
    R. L. McSpedden, Collie, McSpedden, Roberts & Davis, Dallas, for appellee.
   McKAY, Justice.

This is a summary judgment case. Appellant, Wayne Teague, brought suit against appellee, B. J. Stephens, seeking damages by alleging that appellee negligently or intentionally caused the disappearance or destruction of a will of Gordon Patrick Coughlin, deceased. Appellant alleged that he was a beneficiary under such a will and that he would have received a Rolex watch and a Cadillac automobile had the will been found. Appellee answered by general denial and then filed a motion for summary judgment, which motion was granted. Judgment was rendered for ap-pellee, and appellant appeals.

Appellee’s motion for summary judgment alleged that there was no genuine issue as to a material fact. Appellee’s affidavit attached to his motion states that he had never seen nor did he have knowledge of any purported will made by Gordon Patrick Coughlin which contained any bequest in favor of appellant, and that he, appellee, never destroyed or lost any will made by Coughlin.

Appellant by his answer contended that there were existing issues of fact, and in his attached affidavit stated that Coughlin was his very close friend, and that he had known him for several years and on many occasions had assisted him in business; that Coughlin seemed to consider him a son; that they had thought about going into business together; that he had been told by numerous associates and friends of Cough-lin that he was to have Coughlin’s car and Rolex watch if anything happened to Coughlin; and that several people had told him that Coughlin told them that he had made some provision for him in his estate. Appellant further stated in his affidavit that he had never seen a will of Coughlin which listed him as a beneficiary.

There was another affidavit attached to appellant’s answer, being that of Sybil Lucas Spiers (formerly Sybil Lucas Rea). She stated that she and Coughlin had apartments in the same apartment building; that she dated Coughlin during the last year of his life and they were planning to marry; that Coughlin showed her a manila file folder in a desk drawer in his apartment and told her it had his insurance and other papers in it that she would need if anything happened to him, in which event to get the folder and take it to Joe Denton, a banker; that from Coughlin’s statement she inferred that his will was in the folder; that on the day Coughlin died she saw appellant and his wife and Coughlin’s son and daughter at the hospital and that after his death and later the same day all of them went to Coughlin’s apartment where they found a security guard at the door; that after a few minutes the son was allowed inside, and a few minutes later she was allowed inside in the company of a rental agent to select a burial suit; she was allowed in the apartment later the same week to reclaim furniture and pots and pans Coughlin had borrowed from her; that ap-pellee told her that the manila folder she described was never found. She further stated that Coughlin said to her that appellant was like a son to him and that appellant was to get his wrist watch and automobile.

Also attached to appellant’s answer was a copy of a letter from Ruby Fadal of Waco, Texas, addressed to appellee in which she stated that she had not seen a will but that Coughlin told her in March, 1975, that he had changed his will; that Coughlin had told her several times that if he ever changed his will he would name appellant in it, and that when he said he had changed it she “figured that is what he had done.”

There is also in the record the depositions of appellant and appellee. Appellant stated in his deposition that a man named Bob Cummings and another named Bob Shelby both told him after Coughlin’s death that he was to get Coughlin’s watch and car if anything happened to Coughlin, and that Sybil Rae and Jean Dillard told him the same; that Ruby Fadal also told him the same, and that each told him after Cough-lin’s death.

In his deposition appellant testified that Coughlin never showed him any will by which any property was left to him; that he did not know whether Coughlin had a will; that Coughlin never told him he did have a will or that he did not have a will or that he had made a will; that he did not know whether Coughlin made a will which made him (appellant) a beneficiary; that he did not know what was in the papers in the drawer because he was never given the opportunity to see them and did not see them; that the only person who had told him that Coughlin had made a will and he was a beneficiary was Ruby Fadal and she said “he had made a new will and had me well taken care of in it,” but that he had no knowledge that Coughlin ever had such a will.

In appellee’s deposition he stated that Sybil Ray (sic) called and told him that Coughlin had told her that he had papers in his apartment and that she was well taken care of and he indicated to her where the papers were, but she did not call it or them a will. Appellee further stated that Ruby Fadal called him and told him that Cough-lin told her that he had drawn another will, but she had never seen it, and that she was well taken care of in that will “just like he told Mrs. Ray [sic] and just like he told Mr. Teague.” He further said he had drawn three wills for Coughlin, the last one being after Coughlin’s divorce from his last wife, Jackie, but he did not know whether Cough-lin ever made another will.

Appellant brings four points of error contending that the trial court erred in granting summary judgment for appellee by improperly placing the burden of proof on appellant; by determining the summary judgment motion upon the same grounds as a motion for directed verdict; by concluding that appellant could never adequately show the terms of the will; and by granting appellee’s motion for summary judgment.

A summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 166-A, T.R.C.P. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). The evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.1963). If the credibility of affiant or deponents is involved in the motion, or a mere ground of inference is involved, the motion should not be granted. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). 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. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286, 287 (1957). Evidence which favors the mov-ant’s position is not considered unless it is uncontradicted, and if such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising a fact issue, unless it is clear, direct and positive, and there are no circumstances in the evidence tending to discredit or impeach such testimony. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., supra. Such exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., supra; Valley Stockyards Co. v. Kinsel, supra.

We must measure the motion and the evidence in the record by the above rules. Appellee, as the movant, contends there is no fact issue, and asserts in his affidavit that he had never seen nor did he have knowledge of any purported will by Cough-lin which contained any bequest to appellant, and that he, appellee, never lost or destroyed any will made by Coughlin. However, under the above rules, we must view the evidence in the light most favorable to appellant, and in so doing we must disregard all conflicts in the evidence and accept as true the evidence which tends to support appellant’s position. However, appellant’s summary judgment evidence is addressed to the proposition that there may have been a will in existence and not to the issue whether appellee lost or destroyed any will.

Accepting appellee’s affidavit as true would not foreclose the question concerning the existence of a will. However, the issue here is whether appellee negligently or intentionally caused the loss or destruction of the will. The only evidence on this issue is contained in the affidavit of appellee and he there states that he had never destroyed or lost any will made by Coughlin. Although this affidavit evidence comes from an interested witness it is clear, direct and positive, and there are no circumstances tending to discredit or impeach such testimony. Accordingly, in our opinion there is no genuine issue of a material fact raised in the record.

The judgment of the trial court is affirmed.


text:
    REPUBLIC INSURANCE COMPANY, Appellant, v. M. Dean BOLTON, Appellee.
    No. 19492.
    Court of Civil Appeals of Texas, Dallas.
    March 23, 1978.
    Rehearing Denied April 18, 1978.
    Barry H. Fanning, Fanning & Harper, Dallas, for appellant.
    Randy Taylor, Dallas, for appellee.
   ROBERTSON, Justice.

M. Dean Bolton sued Republic Insurance Company, his insurer, for medical expenses and lost wages under the Personal Injury Protection (PIP) endorsement to his family automobile insurance policy. The injuries which formed the basis of Bolton’s claim resulted from an accident which occurred while he was driving a modified Volkswagen, referred to as a “dune buggy,” in an off-road race in Oklahoma. The sole disputed issue at trial was whether the dune buggy was a “motor vehicle” under the terms of the policy. This issue was submitted to a jury, which found that the dune buggy was a motor vehicle within the meaning of the policy. The trial court rendered judgment upon the verdict, and Republic now appeals. We affirm.

Republic’s initial argument is that the issue of whether the dune buggy was a motor vehicle under the policy was a question of law which should not have been submitted for jury determination, and hence, that the jury’s finding should be disregarded and judgment rendered against Bolton’s claim. Alternatively, Republic urges that the jury’s finding is against the great weight and preponderance of the evidence.

The only special issue submitted to the jury read as follows:

Do you find from a preponderance of the evidence that at the time and on the occasion in question the dune buggy driven by the plaintiff was a motor vehicle within the meaning of the policy?
“Motor vehicle” means an automobile and any other vehicle, including a trailer, operated or designed for operation upon a public road by any power other than animal or muscular power.
Answer: “It was such a motor vehicle”
or
“It was not such a motor vehicle”
Answer: It was such a motor vehicle.

Republic argues that this issue erroneously submits a question of law, and that accordingly, the jury’s answer thereto must be disregarded. We disagree. Although we recognize that issues which require a jury to pass on the legal effect of a written instrument, such as an insurance policy, are generally improper, Stuckey v. Union Mortgage & Investment Company, Inc., 383 S.W.2d 429, 439 (Tex.Civ.App —Tyler 1964, writ ref’d n. r. e.); Alamo Casualty Co. v. Trafton, 231 S.W.2d 474, 478 (Tex.Civ.App.—San Antonio 1950, writ dism’d), this im propriety may be cured by an adequate explanatory instruction or definition. Rodman Supply Co. v. Parker, 363 S.W.2d 838, 842 (Tex.Civ.App.—El Paso 1962, writ ref’d n. r. e.); Home Insurance Company of New York v. Young, 97 S.W.2d 360, 367 (Tex.Civ.App.—Fort Worth 1936, writ dism’d). In the present case, the term “motor vehicle” was defined in precisely the same language used in the policy, and the jury was thus restricted to considering the facts of the case as they related to that particular definition. Under the submitted definition, the question of whether a vehicle is “operated or designed for operation upon a public road” must be determined by the facts of the case with respect to the character of the particular vehicle involved, and if the evidence permits opposing inferences to be drawn, a jury issue is presented.

We conclude that the evidence in this case raises a fact issue for the jury. Republic argues that no jury question is presented because the vehicle was used for racing on dirt or sand tracks, and was not driven on the public highways. It points to evidence showing that the vehicle could not have met state inspection standards because it lacked a proper muffler, turn signal lamps and other required equipment. It also had oversize rear tires and other special equipment designed for racing. The vehicle was not licensed in either Texas or Oklahoma, and it was towed, not driven, to the race in which Bolton was injured.

Bolton, however, testified that he assisted in building the vehicle, and that it was designed for driving on all types of terrain. According to his testimony, the dune buggy was comparable to a jeep, and it could be driven either on or off the road. Gordon Mayfield, the vehicle’s owner, stated in his deposition that dune buggies could be and frequently are driven on the streets. He further stated that all dune buggies were designed to run either on or off the road, and that where the vehicle is driven is simply a matter of the driver’s preference. Both Bolton and Mayfield stated that the defects which barred state inspection could be easily and quickly cured.

Under these showings, we cannot say that there was no evidence to support submission to the jury or that the jury’s finding is against the great weight and preponderance of the evidence. Despite Republic’s arguments, the question is not the legality of the vehicle’s operation on the public streets; rather, the issue is simply whether the design of the vehicle is appropriate to its use, at least partially, as a means of transportation on the public highways. Although state inspection and licensing requirements might be conclusive in deciding the principal use of the vehicle, the policy in this case does not require such a determination before liability is imposed. Cf. Williams v. Cimarron Insurance Company, 406 S.W.2d 173 (Tex.1966) (under policy which excluded coverage of vehicles “designed for use principally off public roads,” an unlicensed stripped-down stock car racer which was not equipped with required safety equipment such as headlights, taillights and horn held not within policy coverage); Beck v. Unigard Insurance Company, 271 Or. 261, 531 P.2d 907 (1975) (unlicensed stock car racer never operated on public road held within policy exclusion of “other equipment designed for use principally off public roads”); Walcott v. Hawkeye-Security Insurance Company, 189 Neb. 161, 201 N.W.2d 817 (1972) (modified stock car racer held excluded under policy which did not cover “equipment designed for use principally off public roads”); Kansas Farm Bureau Insurance Company v. Cool, 205 Kan. 567, 471 P.2d 352 (1970) (dune buggy operated off the road held excluded from coverage of policy which did not cover “equipment designed for use principally off public roads”); Livingston v. Nationwide Mutual Insurance Company, 295 F.Supp. 1122 (D.S.C.1969) (automobile, altered for racing, held within policy provision excluding coverage of vehicle “designed principally for use off public roads”); Beagle v. Automobile Club Insurance Company, 176 N.E.2d 542 (Ohio C.P.1960) (modified stock car held excluded from coverage under policy provision disclaiming coverage of equipment “designed for use principally off public roads”).

In the absence of some limiting provision in the policy, such as those in the cases cited above, we cannot read the policy provisions so narrowly that recovery would be barred as a matter of law, by a temporary and easily remedied defect or lack of equipment that would preclude the vehicle from passing state inspection. The vehicle’s susceptibility to state inspection and licensing, together with its present use as a racing vehicle, were simply evidentiary considerations bearing on the vehicle’s design. In view of the conflicting evidence, we conclude that the jury’s verdict has adequate support.

Affirmed.

      . The parties stipulated that Bolton had suffered $2,500 in medical expenses and lost wages. They also agreed that if the PIP endorsement was applicable, Republic would be liable for the stipulated $2,500 sum, together with $650 in attorney’s fees.

      . As defined in the policy, a motor vehicle is “an automobile and any other vehicle including a trailer operated or designed for operation upon a public road by any power other than animal or muscular power.”

      . The question of whether Bolton may recover under PIP endorsement for injuries sustained in an non-scheduled vehicle owned by another person is not raised on this appeal.